On the 25th of November 2016, Legal Notice 390 of 2016 titled the Merchant Shipping (Maritime Labour Convention) (Amendment) Rules 2016 (hereinafter 'the Amendment Rules'), was published in the Government Gazette. The Amendment Rules are to be read and construed as forming part of Legal Notice 145 of 2013 i.e. the Merchant Shipping (Maritime Labour Convention) Rules (hereinafter 'the Rules'), and successfully transpose into Maltese law the 2014 Amendments to the Code of the Maritime Labour Convention ('the ILO Amendments') issued by the International Labour Organisation (ILO).
The Amendment Rules come into force on the 18th January 2017, and will ensure better protection to seafarers of Maltese vessels (and their kin) in the case of abandonment, death and long-term disability via the introduction of an expeditious and effective financial security system, which shall provide direct access, sufficient coverage and expedited financial assistance in one of many forms, including social security schemes, insurance, national funds or other similar arrangements. The ILO Amendments hold that choice of form shall be determined by the member state in question after consultation with the shipowners' and seafarers' organisations concerned.
Prior to the passing of ILO Amendments, the aforementioned protection that is being extended to seafarers (in cases of abandonment, death and long-term disability) was absent from the Maritime Labour Convention (hereafter referred to as the 'MLC'). This lacuna has now been addressed with the ILO Amendments that have been passed as 'Standard A2.5.2' to the MLC. The Amendment Rules transpose Standard A2.5.2 into Maltese law via the addition of Article 74A to the Rules, entitled 'Financial Security'. This new addition holds that a seafarer shall be deemed to have been abandoned where, in violation of the requirements of the MLC or the terms of the seafarers' employment agreement:
- the shipowner fails to cover the cost of the seafarer's repatriation, or
- the shipowner has not provided the seafarer with the necessary maintenance and support, or
- the shipowner has otherwise unilaterally severed ties with the seafarer and has failed to pay contractual wages for a period of at least two months.
The Malta Flag Administration shall require ships flying its flag to carry on board a certificate or other documentary evidence of financial security issued by the financial security provider. This shall be made available to the seafarers.
The assistance provided by the financial security system shall be granted promptly upon request by the seafarer, and shall cover:
- outstanding wages and other entitlements under the employment agreement limited to a period of four months,
- all expenses reasonably incurred by the seafarer including the cost of repatriation, and
- all the essential needs of the seafarer including but not limited to food, accommodation and necessary medical care.
The provision of financial security shall not cease before the end of its period of validity, unless the financial security provider provides the Registrar General with prior notice of at least 30 days.
The Amendment Rules further introduce Article 113A of the Rules dealing with shipowners' liability. This article holds that financial security shall assure compensation for contractual claims in accordance with the following minimum requirements:
- Where set out in the seafarer's employment agreement, the contractual compensation shall be paid in full and without delay
- There shall be no pressure to accept a payment which is less than the contractual amount in question
- Where the contractual compensation emanates from the suffering of a long-term disability of a seafarer which makes it difficult to assess the full compensation to which the seafarer may be entitled, an interim payment or payments shall be made to the seafarer so as to avoid undue hardship.
In light of what has been discussed, the implementation of the ILO Amendments will further underline the ILO's commitment to guarantee fundamental principles and rights at work, by enabling the persons concerned to claim freely and on the basis of equality of opportunity, a fair share of the wealth which they have helped to generate. By transposing the ILO Amendments into Maltese law, Malta has underlined its commitment towards all matters relating to the international maritime sphere; further ensuring its presence at the forefront of future developments.
Co-author: Mr Luke Hili
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