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Maritime Labour Convention, 2006 (MLC, 2006) - Cayman Islands

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The Committee notes the observations made by Nautilus International, received with the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2018 entered into force for the Cayman Islands on 26 December 2020.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers’ Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying States have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006, by the Cayman Islands during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Regulation 1.2 and the Code. Medical certificate. In reply to the Committee’s previous request regarding the application of paragraph 7 of the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations, 2014, the Government indicates that the powers of the Chief Executive Officer (CEO) to dispense referred to in this regulation are intended to protect the employment of seafarers serving on ships flagging into the Cayman Islands. In such circumstances the CEO may accept the validity of the seafarer’s medical certificate to allow the opportunity for the seafarer to continue in employment until the certificate’s expiry, should the CEO be satisfied that it was issued against acceptable or equivalent medical standards. The Government further indicates that such powers have never been used. The Committee takes note of this information.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. The Government indicates that, as provided for in Shipping Notice CISN 07/2020, shipowners should review their policies and procedures to ensure compliance with the 2018 amendments to the Code of the Convention. A surveyor will then check that the amendments have been addressed in full at the vessel’s next MLC, 2006, inspection. The Committee notes the observations made by Nautilus International urging the Government to implement the 2018 amendments and indicating that implementation by Shipping Notice will not have the same force as legal implementation by way of the usual form of Regulations. The Committee also notes that, while the Merchant Shipping Act contains a definition of piracy, the Government has not provided information on the national provisions containing the definition of armed robbery against ships for the purpose of the application of Standards A2.1, paragraph 7 and A2.2, paragraph 7 of the Convention. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how is the term armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. In its reply to the Committee’s previous comment, following an observation submitted by the ITF, the Government indicates that the matter of public holiday entitlement was considered and, due to the reference in Guideline B2.4.1, paragraph 4 of the Convention to “recognized as such in the flag State”, it decided that the public holiday entitlement of the United Kingdom complied most closely with the guideline, as the United Kingdom is the “flag State” for all Cayman Islands ships. The Committee notes however that, while the UK Secretary of State retains oversight to ensure that appropriate standards are applied and maintained with respect to the implementation of international Conventions, the Convention has been extended to the Cayman Islands by the United Kingdom and takes effect regarding Cayman Islands flagged vessels through Cayman Islands legislation or the adaptation of relevant UK legislation to local conditions. The Committee once again requests the Government to indicate how it has given due consideration to Guideline B2.4, paragraph 4.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. The Committee notes the Government’s reply to its previous comment, indicating that the Government is currently comprehensively revising the Merchant Shipping Act (MSA) and that this legislative text, once enacted, will give legal effect to Shipping Notices, allowing the Cayman Islands to fully implement the 2014 amendments and all future amendments to the Code of the Convention. The Committee also notes that, in its observations, Nautilus International once again requests the full implementation of such amendments into the legislation of the Cayman Islands. The Committee requests the Government to adopt without delay the necessary legislation to give effect to the 2014 amendments to the Code of the Convention, and to provide a copy once available.

Regulation 2.7 and Standard A2.7, paragraph 1. Manning levels. Adequate manning. In reply to the Committee’s previous request, the Government indicates that completely revised Manning Regulations have been prepared and will shortly be ready for submission to the Cayman Islands Government once the revised Merchant Shipping Act is enacted. For the avoidance of doubt, a reference to the requirement for the minimum safe manning to include a ship’s cook when operating with 10 or more crew (with the qualifications required by the Food and Catering Regulations) will also be added to the new Manning Regulations. The Committee expects that the revised Manning Regulations will be adopted in the near future and requests the Government to provide a copy of the text with its next report.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s reply to its previous comment that the Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 2002 require such vessels to comply with either the REG Yacht Code (>24m) or the UK MGN 280(<24m). The Government indicates that both of these Codes require annual surveys and inspections that cover all applicable MLC, 2006, requirements, including any alteration to the provision of accommodation on board. The Committee notes, however, that the REG Yacht Code or the UK MGN 280 do not refer to the inspection of living and working conditions under the MLC, 2006. The Committee accordingly requests the Government to indicate how it gives effect to Standard A3.1, paragraph 3 for ships of less than 500 gross tonnage.

Regulation 3.2 and Standard A3.2, paragraphs 5 and 6. Food and catering. Dispensation of a fully qualified cook. The Committee notes with interest that the Government has revised Section 6.2 of Shipping Notice 07/2014, eliminating the criterion of duration of the voyage (more than 3 days or more than 36 hours from a safe port) to the requirement to carry a fully qualified cook. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2, Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes the Government’s reply to its previous comment, indicating that the Government is currently comprehensively revising the Merchant Shipping Act (MSA) and that this legislative text, once enacted, will give legal effect to Shipping Notices, allowing the Cayman Islands to fully implement the 2014 amendments and all future amendments to the Code of the Convention. The Committee also notes that, in its observations communicated with the Government’s report, Nautilus International once again requests the full implementation of such amendments into the laws of the Cayman Islands. The Committee requests the Government to adopt without delay the necessary legislation to give effect to the 2014 amendments to the Code of the Convention, and to provide a copy with its next report.

Regulation 4.4 and the Code. Access to shore-based welfare facilities. The Committee recalls that each Member shall promote the development of welfare facilities in appropriate ports of the country and determine, after consultation with the shipowners’ and seafarers’ organizations concerned, which ports are to be regarded as appropriate. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 4.4 and Standard A4.4.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee notes the Government’s indication in reply to its previous comment that, while there have been no changes, it will keep the matter under consideration. The Committee also notes the observations of Nautilus International regarding the lack of improvement in this respect. The Committee recalls that although the primary obligation concerning social security rests with the Member in which the seafarer is ordinarily resident, under Standard A4.5, paragraph 6. Members also have an obligation to give consideration to the various ways in which comparable benefits will be provided to seafarers in the absence of adequate social security coverage. This can be provided in different ways, including in laws or regulations, in private schemes, in collective bargaining agreements or a combination thereof. The Committee requests the Government to provide, with its next report, updated information on any consideration given to this issue.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 3 and 4. Flag State responsibilities. Renewal of Maritime Labour Certificate. The Committee requests the Government to indicate how effect is given to the 2016 amendments to the Code of the Convention with regard to the renewal of certificates (Standard A5.1.3, paragraphs 3 and 4).

Regulation 5.1.6. Flag State responsibilities. Marine casualties. In reply to the Committee’s previous comment, the Government provided a copy of the Merchant Shipping (Marine Casualty Reporting and Investigation) Regulations, 2018, and of the memorandum of understanding signed with the UK Marine Accident Investigation Branch covering the investigation of “very serious marine casualties”. While noting this information, the Committee recalls that Regulation 5.1.6, paragraph 1, provides that each Member shall hold an official inquiry into “any serious marine casualty, leading to injury or loss of life that involves a ship that flies its flag”. The Committee accordingly requests the Government to indicate how it ensures full conformity with this requirement of the Convention.