Repatriation of Seamen Convention, 1926 (No. 23) - Ukraine (RATIFICATION: 1970)

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The Committee notes the Government’s reports on Conventions Nos. 23, 69, 92, 108, 133 and 147. In order to provide a comprehensive view of the issues to be addressed in relation to the application of these Conventions, the Committee considers it appropriate to examine these matters in a single comment, as follows.

The Committee recalls that, in the framework of the Standards Review Mechanism, the ILO Governing Body, as recommended by the Special Tripartite Committee on the Maritime Labour Convention, 2006, as amended (MLC, 2006), classified Conventions Nos. 23, 69, 92, 108, 133 and 147 as “outdated”. At its 343rd Session (November 2021), the Governing Body placed an item on the agenda of the 118th Session (2030) of the International Labour Conference concerning the abrogation of Conventions Nos. 23, 69, 92 and 133; requested the Office to launch an initiative to promote the ratification on a priority basis of the MLC, 2006 among the countries still bound by outdated Conventions, as well as to promote the ratification of the Seafarers’ Identity Documents Convention (Revised), 2003, as amended (No. 185) among the countries still bound by Convention No. 108. In this regard, the Committee notes with interest the Government’s information that, in the first half of 2021, the Ministry of Infrastructure developed draft laws on the ratification of the MLC, 2006, and on the introduction of amendments to several legislative acts of Ukraine related to the ratification of this Convention. The Committee also notes with interest the Government’s indication that the national procedures for the ratification of Convention No. 185 are well advanced and that, in preparation for the ratification, the Government has submitted to the Office a copy of the draft sample SID. The Committee invites the Government to provide a sample (and not a copy) of the SID in order to allow a proper evaluation of its conformity with the technical requirements of Convention No. 185. The Committee further requests the Government to provide information on any progress made towards the ratification of the MLC, 2006 and Convention No. 185.

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Article 3(1) of the Convention. Entitlement to repatriation. Further to its previous comment, the Committee recalls that section 55 of the Merchant Shipping Code (Act No. 176/95-BP), is not fully consistent with this Article of the Convention that recognizes the seafarers’ right to repatriation every time they are landed during the term of their engagement or on its expiration. Recalling that the seafarers’ entitlement to repatriation is set out in equally general terms in Standard A2.5(1) of the Maritime Labour Convention, 2006 (MLC, 2006), the Committee requests the Government to take the necessary measures to ensure that in all cases where a seafarer is landed during the term of his/her engagement or on its expiration, the seafarer will be entitled to repatriation irrespective of who should bear the expenses.

Article 4(d). Repatriation expenses. Further to its previous comment, the Committee notes that under section 55 of Act No. 176/95-BP, shipowners are liable to bear the costs of repatriation in the event of repatriation due to: (i) termination of employment by the shipowner or an authorized representative; (ii) seafarer’s illness or injury; (iii) shipwreck; or (iv) shipowners’ inability to meet their obligations arising from legislation or relevant agreements. Recalling that Article 4(d) requires shipowners to also bear the costs for repatriation of seafarers who have been left behind by reason of discharge for any cause for which they cannot be held responsible, the Committee requests the Government to take measures to ensure, in law and in practice, that the costs of repatriation in these situations are borne by the shipowner. The Committee recalls that the same requirement is expressed in similar terms in Standard A2.5(1)(b) of the MLC, 2006 which confers the right to repatriation when the seafarers’ employment agreement is terminated by the shipowner, or by the seafarer for justified reasons.

Part V of the report form. Practical application. The Committee requests the Government to supply information of a general nature, including for instance, statistics on the number of seafarers covered by the Convention, extracts from official reports, copies of relevant parts of collective agreements, and any difficulties encountered in the practical application of the Convention.

Finally, the Committee recalls that Convention No. 23, together with 36 other international maritime labour Conventions, is revised by the MLC, 2006 which contains in Regulation 2.5, Standard A2.5 and Guideline B2.5 the most up-to-date standards on repatriation. The Committee invites the Government to consider the possibility of ratifying the MLC, 2006 in the very near future and to keep the Office informed on any steps taken towards the early ratification and effective implementation of the MLC, 2006.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2(b) of the Convention. Definition of “seaman”. The Committee requests the Government once again to clarify whether the term “seaman” also covers those persons on board the vessel who are not directly involved in its operation, but perform other duties, such as serving passengers on ships.

Article 3(1). Entitlement to repatriation. The Committee notes that, according to section 55(1) of the Merchant Shipping Code, a seafarer is repatriated at the shipowner’s expense in the following cases: termination of employment by the shipowner or an authorized representative; illness or injury; shipwreck; inability of the shipowner to meet obligations arising from national legislation or from the relevant agreement. It draws the Government’s attention to the fact that Article 3(1) of the Convention confers on any seafarer, who is landed during the term of his/her engagement or on its expiration, the right to be taken back to one of the three repatriation destinations provided for in the Convention. Consequently, the Committee requests the Government to take the necessary measures to ensure that in all cases where a seafarer is landed during the term of his/her engagement or on its expiration, the seafarer shall be entitled to repatriation; this being without prejudice to the arrangements made concerning repatriation expenses.

Article 5(2). Remuneration. The Committee requests the Government to clarify whether, when a seafarer is repatriated as a member of a crew, he/she is entitled to remuneration for work done during the voyage.

Article 4(d). Repatriation expenses. The Committee requests the Government to indicate the measures taken to ensure that the expenses of repatriation shall under no circumstances be borne by seafarers left behind by reason of discharge for any cause for which they cannot be held responsible.

Part V of the report form. Practical application. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in practice, including information on any practical difficulties in the application of the Convention.

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The Committee notes the Government’s reply to its previous comments concerning Article 6 of the Convention. It draws the Government’s attention to the following remaining points:

Article 2, paragraph (b), of the Convention. Definition of “seaman”. In the absence of any information, the Committee asks the Government once again to clarify whether the term “seaman” also covers those persons on board the vessel who are not directly involved in its operation, but perform other duties, such as serving passengers on ships.

Article 3, paragraph 1. Right to repatriation. The Government refers to section 55(1) of the Merchant Shipping Code, according to which a seafarer is repatriated at the shipowner’s expense in the following cases: termination of employment by the shipowner or an authorized representative; illness or injury; shipwreck; inability of the shipowner to meet obligations arising from national legislation or from the relevant agreement (contract). Article 3, paragraph 1, of the Convention confers on any seafarer, who is landed during the term of his engagement or on its expiration, the right to be taken back to one of the three repatriation destinations provided in the Convention. In other words, the seafarer shall be entitled to be repatriated in all cases where he is landed during the term of his engagement or on its expiration – and this regardless as to whether, under Article 4 of the Convention, the repatriation expenses are borne by the shipowner or by the seafarer. Given that national legislation does not determine who should organize and bear the charge of repatriation in cases other than those explicitly listed in section 55(1), the Committee requests the Government to take the necessary measures to ensure that in all cases where a seafarer is landed during the term of his engagement or on its expiration, the seafarer shall be entitled to repatriation; this being without prejudice to the arrangements made concerning repatriation expenses.

Article 3, paragraph 2, and Article 5, paragraph 2. Repatriation through suitable employment. Since the report remains silent on the subject, the Committee asks the Government once again to clarify whether national legislation considers the seafarer to have been duly repatriated, if he has been provided with suitable employment on board a vessel proceeding to one of the repatriation destinations prescribed in accordance with Article 3, paragraph 2. If so, please indicate how it is ensured that, when a seafarer is repatriated as a member of a crew, he is entitled to remuneration for work done during the voyage.

Article 4, paragraph (d). Repatriation expenses. The obligation of the shipowner, under section 55(1) of the Merchant Shipping Code, to bear repatriation costs in case of termination of employment by the shipowner or an authorized representative and in case of inability of the shipowner to meet obligations arising from national legislation or from the relevant contract, does not cover all cases envisaged by Article 4, paragraph (d), of the Convention. For instance, certain cases of termination of employment by mutual consent of the parties or by the seafarer can also be considered as cases of discharge for causes for which the seafarer cannot be held responsible. The Committee asks the Government to indicate the measures taken to ensure that the expenses of repatriation shall under no circumstances be born by seafarers left behind by reason of discharge for any cause for which they cannot be held responsible.

Part IV of the report form. Please indicate whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention.

Part V of the report form. The Government indicates that no statistics relating to the Convention are available. The Committee asks the Government to give a general appreciation of the manner in which the Convention is applied in the country, including information on any practical difficulties in the application of the Convention.

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The Committee notes the Government’s report. It asks the Government to provide further information on the following points.

Article 2, paragraph (b), of the Convention. Please clarify whether the term "seaman" covers those persons on board vessel who are not directly involved in its operation, but perform other duties, such as serving passengers on cruise ships.

Article 3, paragraph 1. Under this provision of the Convention, any seaman, who is landed during the term of his engagement or on its expiration, shall be entitled to be taken back to his own country, or to the port at which he was engaged, or to the port at which the voyage commenced, as shall be determined by national law, which shall contain the provisions necessary for dealing with the matter, including provisions to determine who shall bear the charge of repatriation. The current wording of section 55 of the Merchant Shipping Code raises certain concerns whether full effect is given to Article 3 of the Convention. Section 55 of the Code is silent on who should organize and who should bear the charge of repatriation in cases of discharge for reasons other than those explicitly listed (such as, for example, the termination of labour agreement (contract) by the seafarer or by mutual consent of the parties). Please clarify who shall organize and who shall bear the charge of repatriation in cases of discharge for reasons other than those explicitly indicated in section 55, part 1, of the Merchant Shipping Code.

Article 3, paragraph 2, and Article 5, paragraph 2. Please clarify whether national legislation allows to provide a seaman with suitable employment on board a vessel proceeding to one of the destinations for repatriation prescribed in accordance with paragraph 2 of Article 3. Please also indicate how it is ensured that when a seaman is repatriated as a member of a crew, he is entitled to remuneration for work done during the voyage.

Article 4, paragraph (d). Please indicate how it is ensured that the expenses of repatriation are not a charge on the seaman if he has been left behind by reason of discharge for any cause for which he cannot be held responsible.

Article 6. Please clarify whether Ukrainian consuls have instructions to advance, where necessary, the expenses of repatriation to both national and foreign seaman.

Part IV of the report form. Please indicate whether courts of law or other courts have given decisions involving questions of principle relating to the application of the Convention.

Part V of the report form. The Committee asks the Government to provide information on the practical application of the Convention, for instance, extracts from official reports and information on any practical difficulties in the application of the Convention.

Part VI of the report form. The Committee asks the Government to indicate the representative organizations of employers and workers to which the reports on the application of the Convention have been communicated in accordance with article 23 of the ILO Constitution.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes, however, the adoption in 1995 of a new Merchant Shipping Code. The Committee requests the Government to provide a detailed report in conformity with the report form adopted by the Governing Body.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes, however, the adoption in 1995 of a new Merchant Shipping Code. The Committee requests the Government to provide a detailed report in conformity with the report form adopted by the Governing Body.

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Further to its previous comments, the Committee notes that the Government’s report was not received. It notes, however, the adoption in 1995 of a new Merchant Shipping Code. The Committee requests the Government to provide a detailed report in conformity with the report form adopted by the Governing Body.

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The Committee notes the information contained in the Government's report that in November 1994 the Supreme Soviet of Ukraine has adopted the Merchant Marine Code on its first reading, that section 55 dealing with repatriation of seamen fully takes account of the requirements of the Convention and that the text will be transmitted after the final adoption of the Code. The Committee requests the Government to provide a copy of the Code when adopted.