1. INTRODUCTION

1.1. General

The Maritime Labour Convention, 2006 (MLC, 2006) came into force in 20 August 2013 and is a “relevant instrument” in the Paris MoU.

The relevant requirements subject to inspection are those set out in the Articles and Regulations of the Convention and in Part A of the Code. The provisions of Part B are not mandatory and therefore, should not be verified by the PSCO.

1.2 Goal and Purpose

This instruction is intended to provide guidance on conducting Port State control inspections in the areas covered by the MLC, 2006.

1.3 Application

The MLC,2006 applies:

• to all seafarers as defined in 1.5 of this instruction, and
• to all ships^[1] , whether publicly or privately owned, ordinarily engaged in commercial activities, except:
  • ships engaged in fishing or in similar pursuits, and
  • ships of traditional build such as dhows and junks, and
  • warships or naval auxiliaries.

Ships flying the flag of a non-ratifying State do not receive more favourable treatment than ships from States that have ratified the MLC, 2006 ((Art. V, paragraph 7). Further, a more detailed inspection is to be carried out.

1.4 Relevant Documentation

• Maritime Labour Convention, 2006
• ILO Guidelines for Port State Control Officers carrying out inspections under the MLC, 2006 , as updated,
• ILO Guidelines for flag State Inspections under the MLC, 2006, as updated,
• ILO’s Frequently Asked Questions on Maritime Labour Convention, 2006

1.5 Definitions

For the purpose of this instruction "Seafarer" means any person who is employed or engaged or works in any capacity on board a ship to which the MLC, 2006 applies^[2]. In case of doubt, refer to the DMLC part I. In some cases, workers onboard may not be recognized as Seafarers by the competent authority for the purpose of MLC, 2006 (this may concern shore-based maintenance technicians onboard for repair and maintenance).

Definitions applicable to this guidance can be found in Article II of the MLC, 2006.

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2. INSPECTION OF A SHIP

2.1 Pre-Boarding Preparation

In preparing for an inspection the PSCO should, in addition to the provisions of the base instruction, take due note of the ship particulars in relation to the applicability of certain elements of the MLC, 2006,:

2.2 Initial Inspection

2.2.1 Certificates and Documents

In the context of the MLC,2006 areas, the PSCO will examine the following documents on board, as a minimum:

• A valid maritime labour certificate if over 500GT;
• A declaration of maritime labour Compliance (DMLC) on board (part I and II): attached to the maritime labour certificate (MLC, 2006/ Reg. 5.1/Standard A5.1.3):
  • A maritime labour certificate shall cease to be valid on any of the cases described in Standard A5.1.3 of the MLC, 2006.
  • DMLC part I is issued by the competent authority and refers to the relevant national requirements that are to be certified as having been complied with.
  • DMLC part II is prepared by the shipowner and outlines the measures adopted to ensure on-going compliance with the national requirements between inspections and the measures proposed to ensure that there is continuous improvement. The Part II must be certified by the competent authority.
  • The MLC requires that the details of the approved Declaration of Maritime Labour Compliance are on the certificate and having the correct DMLC is a condition of its validity.
• Valid medical certificates (MLC, 2006/ Reg. 1.2/Standard A1.2);
• Table of shipboard working arrangements (MLC, 2006/ Reg.2.3/ Standard A2.3, 10 STCW95/A-VIII/1.5);
• Records of hours of work or rest of seafarers (MLC, 2006/Reg. 2.3/Standard A2.3, 12 STCW95/A-VIII/1.5);
• Certificate or documentary evidence of financial security for repatriation (MLC, 2006/Reg.2.5/Standard A2.5.2);
• Certificate or documentary evidence of financial security relating to shipowners liability (MLC, 2006/Reg.4.2/Standard A4.2.1).

There is no requirement for a DMLC if the ship has been provided with an interim certificate.

There may be situations where a ship, which does not meet the definition in Article II(1)(i) of MLC, 2006 may need to undertake a one-off voyage, for example, to proceed to a refit yard, for delivery to the area of operation, or for scrap. Under these circumstances it is considered that any ship undertaking such a voyage is not “ordinarily engaged in commercial activities”, provided that no passengers or cargoes are carried. Documentary evidence issued by or on behalf of the flag State shall be available on board authorizing the voyage

2.2.2 Ships under 500GT

Ships under 500 GT are required to comply with the MLC, 2006 but are not required to carry a maritime labour certificate and DMLC.

The PSCO should seek evidence that the ship has been inspected by the Flag State according to the MLC, 2006 requirements (Standard A.5.1.4 paragraph 4). The report is evidence that the inspection had been carried out according to the MLC, 2006.

In case the inspection report is missing, the PSCO should consider conducting a more detailed inspection.

In the case of perceived deficiency, the Master should be given an opportunity to produce evidence of compliance with the MLC, 2006 or substantial equivalencies, and provide any necessary explanation. The PSCO, may, in case of doubt, contact the flag State authority.

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2.2.3 Substantial Euivalences, Exemptions and Variations

Attention should be paid to variations or exemptions granted by the competent authority as provided in Title 3 and substantial equivalencies under Article VI, paragraphs 3 and 4 of MLC,2006 indicated in the DMLC Part I.

2.3 Clear grounds

A more detailed inspection should be carried out if there are clear grounds for believing that the condition of the ship or its equipment or crew does not meet the relevant requirements of the MLC, 2006. Examples of clear grounds related to MLC, 2006 are:

• The required documents are not produced, or maintained, or are falsely maintained, or that the documents produced do not contain the information required by the MLC, 2006, or are otherwise invalid.
• There are clear grounds to believe that the working and living conditions on the ship do not conform to the requirements of the MLC.
• There are reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with the MLC, 2006.
• There is a complaint alleging that specific working and living conditions on the ship do not conform to the requirements of the MLC, 2006.
• Following investigation of an onshore complaint.

2.4 More detailed Inspection

When carrying out a more detailed inspection, the PSCO should take account of the provision(s) stated in the DMLC part I, and use their professional judgment when checking for compliance with some or all the 16 areas listed in Appendix A5-III of the Convention. The PSCO could also consider consulting a competent labour authority ashore in cases where expertise is needed.

Depending on the areas which are subject for a more detailed inspection, the possibility to interview, in private, a representative number of seafarers might be considered by the PSCO. Staying within the context of a PSC more detailed inspection, these interviews should confirm relevant information extracted from examination of documents and the inspection of the ship.

The PSCO should also take account of the rest hours provisions and make sure, that the interview does not interfere with seafarers' rest periods.

Recommendations to conduct interviews:

After the inspection/general tour around the ship, the PSCO should preserve anonymity and prevent possible victimization issues by:

• Designating seafarers in sufficient numbers directly on the crew list in the presence of the master, giving the impression to select seafarers to be interviewed with impartiality;
• Organizing the interview in an enclosed room;
• Interviewing seafarers one by one, in private;
• Handling interviews by setting equal durations, as far as possible.

Considering that any seafarers should not be prevented from seeing the PSCO, it is recommended to also designate seafarers, to be interviewed, which may not be met during the inspection of the ship.

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2.5 Expanded Inspection

The scope of an Expanded inspection includes living and working areas detailed in the PSCC instruction “Guidance on type of inspections”.

2.6 Complaints

2.6.1 Definitions

A complaint means information submitted by a seafarer, a professional body, an association, a trade union, or generally any person with a legitimate interest in the safety of the ship. This includes concerns about safety or health hazards to seafarers on board, alleging that specific working and living conditions on the ship do not conform to the requirements of this Convention.

Onboard Complaint: An onboard complaint is a complaint lodged by a seafarer or seafarers using the onboard procedure as defined in MLC, 2006 Regulation 5.1.5.

On-shore Complaint: An on-shore complaint is a complaint lodged by seafarers or other interested parties to the relevant authority in the port where the ship is calling at, alleging a breach of the requirements of the MLC, 2006 as defined in MLC, 2006 Regulation 5.2.2.

Regardless of the source of complaints, appropriate steps shall be taken to safeguard the confidentiality of complaints made by seafarers.

2.6.2 On Shore Complaint and Complaint handling procedures

General

When receiving an on-shore complaint or a complaint, the competent authority or PSCO shall undertake an initial investigation including consideration of whether the onboard complaint procedure has been explored, and, based on their professional judgment, may decide whether the complaint warrants a more detailed inspection.

Before going on-board for inspection, the PSCO records an unexpected factor message in the information system when the complaint or on-shore complaint has not been resolved. Supporting documentation with personal details removed should be attached to the unexpected factor (eg: Annex 2, seafarer messages…)

In the context of an on-shore complaint or a complaint, the inspection may be carried out where the alleged non-conformity relates to any requirement of the MLC, 2006, including seafarers’ rights, and thus not necessarily a requirement coming within the 16 areas of certification and port State control, i.e. including repatriation and the maximum duration of services on board areas.

In the case the complaint or on-shore complaint is not totally resolved before the ship’s departure, the unexpected factor should remain until the PSCO receive evidences that this complaint is resolved or a satisfactory inspection by another member state took place.

In the case the inspection cannot take place, it is recommended to inform the next port of call when known and to attach the supporting documentation.

Complaints and any outcomes should be recorded by the authority or PSCO. The Model form in Annex 1 may be used to support the recording of the complaint.

Specific on-shore seafarer complaint-handling procedure

Step 1: Determine whether the complaint should be handled under PSC procedure.

• Undertake an initial investigation to ascertain whether the complaint relates to MLC requirements and if information in the complaint itself or gained during its investigation may give the PSCO clear grounds for believing that the working and living conditions on the ship do not conform to the requirements of the MLC, 2006.
• Depending upon the outcome of the initial assessment the PSCO should decide whether to carry out a more detailed inspection.
• If the ship cannot be inspected, the unexpected factor message should be maintained.

Step 2: Inspection process.

• Ascertain whether the on-board complaint procedure has been used. If the procedure has not been used without valid justification the PSCO should advise that, in the first instance, the on-board complaint procedure should be used.
• Otherwise, the PSCO should seek to promote a resolution of the complaint at the shipboard level.
• The master, the ship owner and any person or organization with a legitimate interest in the shipboard working and living conditions shall be permitted to express their views.
• If the complaint cannot be resolved at shipboard level, the flag State should be notified and requested within a prescribed deadline to provide advice and a plan of action. The PSCO should use the format in Annex 3 to contact the flag state.
• As long as the resolution of the complaint is not completed, the unexpected factor message must be maintained.

Step 3: Dealing with an unresolved complaint.

• If the flag state advises that it will resolve the matter and will provide a plan of action within a prescribed deadline the PSCO will not have any further involvement.
• If the complaint is not resolved by the flag State within the prescribed deadline, then the PSCO should transmit the inspection report to the ILO and inform the appropriate ship-owners and seafarers’ organizations in the port state. The PSCO should use the Annex 3 to inform Director General of the ILO and inform the appropriate ship-owners and seafarers’ organizations in the port State. If any reply has been received from the flag state, PSCO should attach it to Annex 3.

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3. FOLLOW-UP ACTION

3.1 Deficiencies warranting Detention

Annex 2 contains a non-exhaustive list of deficiencies which may warrant detention.

If following an inspection, the PSCO finds that the ship does not comply with the requirements of the MLC, 2006 and,

• the conditions on board are clearly hazardous to the safety, health or security of seafarers, or
• the deficiency constitutes a serious or repeated breach of the requirements of the MLC, 2006, including seafarers’ rights,

the PSCO shall ensure that the ship does not proceed to sea.

3.2 Actions to be considered

3.2.1 Complaint Related Deficiencies

If a deficiency is recorded following a complaint and it refers to areas other than listed in Annex A5-III the flag State should be consulted using the action taken code 55.

3.2.2 Detainable Deficiencies

In case of deficiencies warranting detention, the ship may be released when either:

• the detainable deficiencies have been rectified to the satisfaction of the PSCO or
• the PSCO has accepted a plan of action and is satisfied that the plan will be implemented in an expeditious manner and in an appropriate timeframe.

The plan of action is proposed by the shipowner. It specifies, in particular, the action(s) required and the time frame proposed to rectify MLC, 2006 related detainable deficiencies that must be accepted by the PSCO before allowing the release of the ship.

When deciding whether to accept a plan of action the following elements should be considered:

• the length and nature of the intended voyage or service;
• the nature of the hazard to seafarers’ safety, health or security;
• the seriousness of the breach of the requirements of the MLC, 2006 (including seafarers’ rights);
• any previous history of MLC, 2006 related deficiencies;
• whether or not the appropriate work or rest periods for seafarers are being observed;
• the safe manning requirements of the flag State;
• the number and nature of deficiencies found during the inspection;
• the nature of the cargo;
• any MLC, 2006 related deficiencies raised in previous ports of call;
• whether or not the deficiencies can be remedied in the port of inspection.

Considering that MLC, 2006 doesn’t provide any provisions to elaborate and follow-up the plan of action, the PSCO should be guided by the following:

• the shipowner should submit the plan of action to the flag State or RO for formal acceptance;
• the flag State or RO validates the plan of action;
• the shipowner provides to the PSCO the plan of action and the evidence of validation from the flag State or RO;
• after acceptance, the action taken code 49 is used in the final inspection reports for all deficiencies covered by the plan of action. The plan of action is attached to the inspection report as supporting documentation;
• the PSCO records an unexpected factor message in the information system stating that the plan of action related to MLC, 2006 detainable deficiency is ongoing. As long as the plan of action is not completed, the unexpected factor message must be maintained.

The PSC authority of the next port may be informed. The Director General of the ILO may also be informed by transmitting a copy of the PSCO’s report accompanied by any reply received from the flag State.

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4. Reporting

4.1 Notifications

In addition to stakeholders usually informed of the result of the inspection, shipowners’ and seafarers’ organisations, the Director General of the International Labour Office, the flag State and RO, and the competent authority of next port may or must be notified following the matrix below:

	Appropriate Shipowners’ and Seafarers’ organization in the port State**	Director General of the ILO	Flag State	PSC authority of next port	Report forms
Significant deficiency* or deficiency in connection with Complaint	Must be informed	May be informed and any reply from flag State should be attached	May be informed	May be informed according port State Procedure	Use Annex 1
On shore complaint not resolved	Must be informed	Must be informed	Must be informed	May be informed according port State Procedure	Use Annex 1
Ship detained due to MLC, 2006 deficiency	Must be informed	May be informed	Must be informed	May be informed (Informed by THETIS if Paris MoU port)	Using notice of detention (See PSC model forms)

4.2 Reporting

The PSCO should be aware that in some deficiencies more than one relevant instrument (STCW, SOLAS, or MLC 2006) could be applicable. For hours of rest, STCW only applies to watchkeepers and some seafarers with specific duties. For other seafarers only MLC is applicable. In addition, STCW regulates hours of rest where MLC gives the choice between hours of rest or hours of work.

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The On Shore Complaint Form where the details of a complaint can be recorded, can be opened by clicking on the link.

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ANNEX 2 – ADDITIONAL GUIDELINES FOR A MORE DETAILED INSPECTION

The following non-exhaustive list contains examples of deficiencies (including seafarer's rights) which may justify the detention of the ship. For more precision, when relevant, the PSCO should refer to PSCC instructions on manning and qualifications or PSCC instructions on hours of work and rest hours:

Deficiencies	References
No follow up action listed in section 3.3 has been taken (i.e. no deficiency has been rectified before the ship departed the last port)	Art IV.1 - Standard A 5.2.1. para 6.b
Minimum safe manning document or equivalent not presented or available	Art IV para 1 - Standard A.2.7.
No evidence that seafarers are trained and certified as competent or otherwise qualified to perform their duties (is missing)	Art IV para 1 - Regulation 1.3.1, 1.3.2 and 1.3.3
Persons under the age of 16 years working on board	Standard A.1.1. para.1
Seafarers on board under the age of 18 years (except training program) are regularly working at night, or work likely to jeopardise their health or safety.	Art IV para 3 - Standard A 1.1. para 2 and 4
Several seafarers not holding valid certificate(s) attesting medical fitness	Art IV para 4 - Regulation 1.2.1
Seafarers on board the same ship repeatedly not in possession of valid employment agreement or seafarers with SEAs containing clause containing denial of seafarers’ rights.	Art IV para 2 - Regulation 2.1. para. 1 & 3 and Standard A.2.1 para 1
Evidence that maximum hours of work have been repeatedly exceeded or evidence that minimum hours of rest have repeatedly not been kept. Note: Excessive fatigue may occur and constitute immediate danger for the safety of the ship, the crew and/for the environment.	Art IV para 3 - Regulation 2.3 and Standard A 2.3. para. 5a or Regulation 2.3 and Standard A 2.3. para. 5b
No record of work or rest hours or evidence that records have been falsified to hide excessive working hours of the crew.	Art IV para 3 - Standard A 2.3. para 12
Insufficient manning (number of seafarers)	Art IV para 3 - Regulation 2.7 and Standard A 2.7
Ventilation, air conditioning and/or heating not working satisfactorily	Art IV para 3 - Standard A3.1.para.7(d)
Accommodation, including catering and sanitary facilities, are unhygienic and equipment is missing or not functioning	Art IV para 3 - Standard A3.1 para 11 and A.3.2 para 2
Quality and quantity of food and drinking water not sufficient for the intended voyage	Art IV para 3 - Regulation 3.2 and Standard A3.2. para. 2
Required medical guide repeatedly missing or medicine chest or medical equipment, not on board, and not updated.	Art IV, para 4 - Standard A4.1. para. 4, (a)
No seafarer with training in medical care (STCW 78 as amended) in charge of medical care on board for ship not carrying a medical doctor. Note: According MLC, such ship requires person who is trained with "medical care" or "medical first aid”.	Art IV para 4 - Standard A.4.1. para. 4 (c)
The certificate or documentary evidence of financial security for repatriation, issued by the financial security provider, is missing	Art IV para 2 - Standard A2.5.2, para. 7
The certificate or documentary evidence of financial security relating shipowners’ liability, issued by the financial security provider, is missing.	Art IV para 2 - Standard A4.2.1, para. 11
No medical doctor for ships ordinarily engaged in international voyages of more than three days, carrying one hundred persons or more.	Art IV para 4 - Standard A.4.1. para. 4 (b)
Repeated cases of non-payment of wages or the non-payment of wages. Note: In case there are alternative procedures established for the handling of such cases or when incorrect or lacking payment of wages cannot be confirmed by the PSCO on-board, then, recognizing that it might be difficult to find evidence on-board, the PSCO may provide information about local trade union representatives or other persons who may assist in pursuing a maritime claim. The PSCO could also collect information and pass the case on to a competent authority ashore.	Art IV para 2 - Standard A2.2, paragraphs 1 and 2

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The Complaint - Standard Letters to Report can be opened by clicking on the link.

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