Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) - Peru (RATIFICATION: 1962)

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The Committee notes the reports provided by the Government on the application of the Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55), and the Sickness Insurance (Sea) Convention, 1936 (No. 56). In order to provide an overview of matters arising in relation to the application of these maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55). Article 6. Repatriation. In its previous comment, the Committee requested the Government to indicate the legal provisions giving effect to the requirements of this Article of the Convention, in particular those relating to the specific destinations to which the seafarer may be repatriated and the items of expense covered. The Committee notes that section 447.1 of the regulations implementing Legislative Decree No. 1147 (adopted by Supreme Decree No. 015-2014-DE of 28 November 2014) provides that seafarers have the right to be transported to the port of embarkation at the expense of the shipowner in the event of illness, provided that the seafarer cannot continue to carry out his or her duties or cannot be expected to continue doing so in specific circumstances. The Committee requests the Government to indicate the items of expense covered for the repatriation of a sick or injured seafarer (Article 6(3)).

Article 8. Safeguarding property left on board. In its previous comment, the Committee requested the Government to adopt measures to ensure that the national legislation requires shipowners or their representatives to take steps to safeguard the property left on board by sick, injured or deceased seafarers. The Committee notes that the Government has not provided information on this matter. The Committee also notes that section 404 of the regulations implementing Legislative Decree No. 1147, like the repealed Decree No. 028-DE/MGP, provides that the captain is obliged to safeguard all of the papers and clothing of any seafarer who dies on board the ship. However, it does not provide for the adoption of measures for safeguarding property left on board by sick or injured seafarers. The Committee requests the Government to indicate the measures adopted to bring the legislation into conformity with the Convention in this regard.

Sickness Insurance (Sea) Convention, 1936 (No. 56). Articles 1 and 2. Payments under the compulsory sickness insurance scheme. In its previous comment, the Committee noted the adoption of SBS Resolution No. 14707-2010 of 15 November 2010 concerning the dissolution of the Fishers’ Social Benefits and Social Security Fund (CBSSP). The Committee requested the Government to indicate how it ensures in practice the payment, under all circumstances, of cash benefits for a minimum period of the first 26 weeks of incapacity and to supply detailed information on any measures taken to reorganize and operate an insurance body responsible for providing the benefits prescribed by the Convention. The Committee also requested the Government to provide its comments in response to the observations of the General Confederation of Workers of Peru (CGTP) regarding, inter alia, the absence of legislative provisions guaranteeing the payment of cash benefits for at least the first 26 weeks of incapacity.

The Committee notes the Government’s indication, in response to the Committee’s comments and the observations of the CGTP, that under section 447.2(c) of the regulations implementing Legislative Decree No. 1147, with a view to guaranteeing the access to social security of working and retired fishers covered by Decision SBS No. 14707-2010, the National Congress adopted Act No. 30003 of 27 March 2013, which governs the special social security scheme for working and retired fishers. The Government indicates that the Act and its implementing regulations (Supreme Decree No. 007-2014-EF) regulate the following financial benefits: the “direct transfer to retired fishers” benefit (TDEP); the retirement pension for fishers affiliated to the special pension scheme for fishers (REP); the disability benefit for fishers affiliated to the REP; the payment of the TDEP as survivors’ benefit; and a survivors’ benefit from the REP. The Government adds that section 2(b) of Act No. 30003 guarantees full insurance for fishers and their dependants, and those in receipt of a pension from the now dissolved CBSSP, as regular members of the contributory social security health scheme under the aegis of the Social Health Service of Peru (ESSALUD). In this regard, section 27 of the Act provides that fishers affiliated to the REP or the Pension Funds Private Administration System (SPP) are covered by ESSALUD as regular members of the contributory social security health system. To this effect, the provisions of Supreme Decree No. 005-2005-TR, or any superseding legislation, are applicable, even in the event that the fisher was not affiliated to the CBSSP. Under section 6 of Supreme Decree No. 005-2005-TR, dependent fishers, retirees and their dependants shall be entitled to the benefits established in Supreme Decree No. 009-97-SA, implementing the Social Health Insurance Modernization Act. The Government also refers to section 15 of the regulations governing the temporary incapacity benefit, which provides that the benefit shall be equal to the average daily wages during the 12 months preceding the contingency, multiplied by the number of days for which the benefit is to be paid. If the total number of months is less than 12, the average shall be determined on the basis of the length of time that the regular member has been contributing. The benefit shall be granted for a maximum consecutive period of 11 months and ten days. Entitlement to the benefit starts on the 21st day of incapacity; during the first 20 days the employer is still required to pay wages. Lastly, the Government indicates that, as of 30 June 2015, a total of 2,724 fishers were affiliated to the REP and there were 7,523 beneficiaries in receipt of TDEP benefits.

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Article 6 of the Convention. Repatriation. Recalling that the shipowner’s obligation to defray the expense of repatriating a sick or injured seafarer who is landed during the voyage in consequence of sickness or injury is now reflected in Standard A2.5(1)(c) of the Maritime Labour Convention, 2006 (MLC, 2006), to be read in conjunction with Guideline B2.5.1(1)(b)(i), the Committee requests the Government to indicate the legal provisions giving effect to the requirements of this Article of the Convention, in particular those relating to the specific destinations to which the seafarer may be repatriated and the items of expense covered. The Committee also requests the Government to refer to the comments made in 2010 under the Repatriation of Seamen Convention, 1926 (No. 23).

Article 8. Safeguarding property left on board. The Committee notes that under section E-010609 of Supreme Decree No. 028-DE/MGP of 25 May 2001, the ship’s master has to secure the belongings left on board by deceased persons. However, the Committee recalls that the Convention requires measures to be taken for safeguarding the property left on board by sick or injured seafarers as well. Recalling that the same requirement has been incorporated in Standard A4.2(7) of the MLC, 2006, with the additional obligation to return the property left on board by sick, injured or deceased seafarers to their next of kin, the Committee requests the Government to take measures in order to fully align its legislation with the Convention on this point.

Part V of the report form. Practical application. The Committee notes the information provided by the Government in its report regarding the number of inspections carried out during the period 2009–10 with respect to the supplementary insurance for hazardous occupational activities (SCTR). The Committee would be grateful if the Government would continue to provide up-to-date information on the manner in which the Convention is applied in practice, including, for instance, the number of seafarers to whom the Convention applies and who have benefited from medical care and maintenance, distinguishing, if possible, between those left ashore in the national territory and those landed elsewhere; the amounts paid by shipowners and the social security institution for sick, injured or deceased seafarers; copies of collective agreements containing provisions related to the Convention; and relevant extracts from activity reports of the Social Security Health Insurance (EsSalud) and of the National Directorate of Labour Inspection.

Finally, the Committee recalls that most of the provisions of the Convention have been incorporated in Regulation 4.5 and the corresponding Code of the MLC, 2006 and therefore ensuring compliance with Convention No. 55 would facilitate compliance with the corresponding requirements of the MLC, 2006. The Committee requests the Government to keep the Office informed of any further developments regarding the process of ratification and effective implementation of the MLC, 2006.

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In its previous comments, the Committee had noted the trade union allegations on the persistent failure of employers to affiliate fishers to the supplementary insurance for hazardous occupational activities (SCTR), as well as the 2005 government statistics, according to which only 168 of 2,541 fishing enterprises had subscribed to the SCTR. The Committee therefore requested the Government to provide information on the penalties incurred by employers for failure to meet their obligations towards fishers as regards the SCTR (section 82 and Annex 5 of Supreme Decree No. 009-97-SA), and on the measures envisaged to secure observance by all maritime fishing companies of their obligations under the law. Furthermore, the Committee hoped that Supreme Decree No. 003-2007-PRODUCE of 2 February 2007, according to which large industrial fishing vessels must show a certificate attesting to payment of social security contributions (constancia de no adeudo) in order to be permitted to leave port, would, in practice, be an incentive to all shipowners to fulfil their obligations under the Convention and the national legislation, and requested the Government to keep the Office informed on any progress made in this area.

The Government indicates that, further to the above Supreme Decree No. 003-2007, the related Supreme Decree No. 019-2007-PRODUCE of 17 October 2007 specifies that permission to large fishing vessels to depart shall only be granted if the obligation to regularly pay the contributions under, inter alia, the SCTR is met. The Decree further provides that the competent authority shall transmit to the relevant ministries the list of the permissions granted to leave port as well as the list identifying the cases and reasons for which fishing vessels have not been authorized to leave port, for the purpose of adopting adequate supervisory and fiscal measures and imposing appropriate sanctions.

The Government also reports that, following a series of inspections performed in 2007 pursuant to communication No. 0170-2007-MTPE/2/11.4 of 23 March 2007, further inspections of 33 fishing enterprises with industrial vessels fishing anchovies have been carried out in June 2008 by 44 labour inspectors from the National Directorate for Labour Inspection at the request of the Ministry of Production. The scope of inspection specifically related to the SCTR and payslips (including information on remuneration and health and social security benefits). The Chamber of Commerce of Lima indicates that inspections have become more frequent and effective so that less and less employers take the risk to incur a penalty relating to the payment of the SCTR or other social security obligations.

The Committee requests the Government to indicate the impact of the above measures on the affiliation to the SCTR and payment of SCTR contributions by employers. In particular, the Committee asks the Government to supply, in its next report, up to date statistics on the cases where fishing vessels have been prohibited from leaving port under Supreme Decree No. 003-2007-PRODUCE, to describe the reasons invoked, and to indicate the penalties imposed against employers for not taking out SCTR or not paying SCTR contributions as well as other enforcement actions taken. Given that the inspection report has yet to be completed, the Committee further asks the Government to communicate, with its next report, a copy of the final inspection report containing the infringements detected and the sanctions imposed for not taking out SCTR or not paying SCTR contributions. Please also indicate the number of claims, in relation to occupational diseases or accidents, filed under the SCTR during the reporting period.

Moreover, the Committee notes from Report No. 030-2008-DPR.SA/ONP supplied by the Insurance Standardization Office (ONP) that, from the entry into force of the SCTR in 1997 until 17 June 2008, no claims for economic benefits arising from occupational diseases or accidents in the fishing sector have been filed under section 88 of Supreme Decree No. 009-97-SA, which provides for benefits by insurance institutions in the event of failure of employers to take out SCTR or pay contributions under the SCTR. In view of the above, the Committee understands that the provisions of national legislation guaranteeing the right to benefits in case of non-affiliation to the SCTR or non-payment of SCTR contributions by the employers have so far not been implemented in practice. It asks the Government to indicate the manner in which workers whose employers have failed to affiliate them to the SCTR or to pay relevant contributions, have been granted the medical and cash benefits guaranteed by the Convention. Please indicate the number of such cases as well as any measures taken or envisaged to inform the workers concerned about their rights under section 88 of Supreme Decree No. 009-97-SA.

Lastly, the Committee requested the Government to provide information on the outcome of the legal proceedings against the company Atlantida for non-payment of social insurance contributions in respect of invalidity and death. According to the Government’s report, a sanction amounting to a fine of 6,200 nuevos soles was imposed on the fishing company for non-payment of social insurance contributions in respect of invalidity and death in 36 cases. The Committee asks the Government to indicate whether there are cases in which workers have lost their rights to medical and cash benefits as a consequence of the company’s failure to pay the relevant contributions. If there are such cases, please provide information on the benefits received by the workers from the insurance institutions.

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The Committee takes note of the information sent by the Government in response to earlier comments by the Trade Union of Fishing Boat Owners of Puerto Supe and Associates. It also notes with interest the adoption of Supreme Decree No. 003-2007-PRODUCE of 2 February 2007 and communication No. 0170-2007-MTPE/2/11.4 of 23 March 2007 asking for inspection of the fishing enterprises of Puerto Supe and those in the SUNAT database. The Committee requests the Government to provide information on the results of the inspections carried out pursuant to the communication of 23 March 2007 and on any penalties applied.

According to Supreme Decree No. 003-2007-PRODUCE of 2 February 2007, in order to leave port, large industrial fishing vessels must now show a certificate attesting to payment of social security contributions (“constancia de no adeudo”), which must be delivered to the authority that issues permits for vessels to depart. The certificate is valid for 30 days and must be issued within three working days by the Social Benefits and Social Security Fund for Fishers to all shipowners requesting it.

The Committee notes that, according to Supreme Decree No. 009-97-SA issuing the enabling regulations of Act No. 26790 to modernize the health aspect of social security, fishing is considered as an activity liable to risk and must therefore be insured under the supplementary insurance for hazardous occupational activities (SCTR). The provisions of the Supreme Decree of 2 February 2007 do not, therefore, suffice on their own. The Committee nonetheless hopes that, in practice, the Decree will be an incentive to all shipowners to fulfil their obligations under the Convention and the national legislation. It requests the Government to keep it informed of any progress made in this area.

The Committee also draws the Government’s attention to other points raised in its 2006 observation for which a report is expected in 2008.

The Committee would be grateful if in its next report the Government would explain why the workers of some enterprises are still denied protection under the law notwithstanding section 82 of Supreme Decree No. 009-97-SA, which provides that all workers engaged in high-risk activities must have the SCTR supplementary insurance. In the event of failure to take out SCTR supplementary insurance, the Committee points out that the Government has the primary responsibility for ensuring that the protection established by the Convention is properly implemented and that it is fully respected in practice. It also requests the Government to indicate the manner in which effect is given in practice to section 88 of these regulations, under which insurance institutions are required to bear the cost of sickness or injury where employers fail to pay insurance contributions, and may subsequently claim back from the employers the amounts they have paid out. Lastly, it requests the Government to provide information on the penalties incurred by employers for failure to meet their obligations under the SCTR supplementary insurance, and on the measures envisaged to secure observance by all maritime fishing companies of their obligations under the law.

With regard to cash benefits due to seafarers in the event of sickness or disease, the Committee would be grateful if the Government would indicate how effect is given to the Convention in the event of non-payment by shipowners of insurance contributions. It points out that under Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, where sickness or injury results in incapacity for work the shipowner does not cease to be liable until the sick or injured person becomes entitled to benefits under the compulsory insurance scheme.

Lastly, the Committee requests the Government to provide information in its next report on the outcome of the legal proceedings against the company Atlantida for non-payment of social insurance contributions in respect of invalidity and death. It hopes in particular that the Government will be in a position to report on how these matters have been settled and that it will provide all the relevant court decisions and any relevant information on: (i) the penalties imposed on the abovementioned enterprise; (ii) the benefits received by the workers of the enterprise from the insurance institutions; and (iii) the latters’ exercise of their right to bring proceedings against the abovementioned enterprise.

[The Government is asked to reply in detail to the present comments in 2008.]

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In previous comments, the Committee noted certain problems in application of national legislation regarding sickness and accident insurance in the maritime fishing sector and requested the Government to supply information on the measures taken to strengthen the capacity of the inspectorate to supervise application of the national legislation in practice. It also requested the Government to supply statistical information on the number of enterprises in the maritime fishing sector which have taken out the supplementary insurance for high-risk activities (SCTR) instituted by section 19 of the Social Security Modernization Act No. 26790 in regard to health, 1997. In fact, under Supreme Decree No. 009-97-SA issuing regulations under the Act, fishing is considered as a high-risk activity and therefore subject to compulsory SCTR insurance. Under this insurance, workers enjoy a specific system in regard to medical treatment, while cash benefits in the event of incapacity for work are financed by the health insurance scheme.

In this regard, in the further communications received between October 2004 and January 2005, the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates once again drew attention to serious and persistent failure to apply in practice the national legislation and regulations, as well as the lack of will by the Government to confront the existing problems. According to the trade union, shipowners persistently fail to comply with their obligation to affiliate their workers to the supplementary insurance for high-risk occupations which results in depriving them of any protection in the event of illness or accident. The trade union therefore urges the Government to convene a round table at national level in order to find a solution to the problems of social security, health and industrial injury for workers in the industrial maritime fishing sector.

In its latest report received by the Office in October 2005, the Government gives no reply to these concerns or to the requests expressed by the trade union. It provides a list of activities already undertaken or planned by the labour inspection services in various regions of the country in order to supervise the manner in which the obligation to affiliate to the SCTR is complied with in practice by fishing enterprises. Furthermore, it provides the statistical information requested earlier regarding the number of enterprises in the maritime fishing sector affiliated to the SCTR special scheme.

The Committee takes due note of this information and hopes that in its next report the Government will provide its observations regarding the concerns expressed by the above trade union. In regard to medical benefits, first, the Committee notes that on the basis of the statistics supplied by the Government, despite the inspection campaign mentioned in the report, only a small number of enterprises in this sector are actually affiliated to the supplementary insurance for high-risk occupations. Indeed, while there are some 2,541 fishing enterprises in the country, at 22 July 2005 only 168 of them had subscribed to high-risk occupation insurance. The Committee would be grateful if the Government would supply in its next report explanations on this matter, particularly the reasons why workers of certain enterprises are still deprived of this legal protection whereas section 82 of Supreme Decree No. 009‑97-SA issuing regulations under Act No. 26790 provides that all workers performing high-risk activities must be affiliated to the SCTR supplementary insurance. The Committee recalls that it is primarily the duty of the Government to ensure that the protection provided by the Convention is effectively applied and to see that it is fully observed in practice. On this score, the Committee requests the Government to indicate how effect is given in practice to section 88 of Regulation No. 009-97-SA which provides that the insurance institutions must cover sick or injured persons despite failure by employers to make social security payments and may subsequently claim the amounts involved from the employers. Please also provide information on the sanctions imposed on employers who do not comply with their obligations under the SCTR supplementary insurance and on the measures envisaged to oblige all maritime fishing companies to comply with their legal obligations.

With regard to cash benefits due in the event of seafarers’ illness or accident, the Committee would be grateful if the Government would indicate how the Convention is given effect where shipowners fail to contribute to insurance schemes. The Committee recalls that, under Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, the shipowner ceases to be liable for medical assistance or payment of the whole or part of the salary in the event of illness or accident causing temporary incapacity only from the time at which the person concerned becomes entitled to medical benefits under a compulsory insurance scheme.

Furthermore, the Committee notes the Government’s statement that it will shortly provide information on the legal procedures initiated against the Atlántida company for non-payment of social insurance contributions providing cover against invalidity and death. The Committee notes that the new communications from the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates show persistent failure by this company to comply with the law. Bearing in mind the extreme vulnerability of persons in the event of illness or accident, the Committee trusts that the Government, in its next report, will be in a position to indicate the manner in which these cases have been resolved and will communicate all the legal decisions handed down on the question as well as, if applicable, the sanctions imposed on the above enterprise. Please supply information on any benefits received by workers in this enterprise from the insurance institutions and on the action taken by these institutions in their right of recourse against the Atlántida company.

[The Government is asked to reply in detail to the present comments in 2008.]

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The Committee notes the information supplied by the Government in reply to its previous comments and asks it to provide additional information in its next report on the following points.

Strengthening of inspections to verify discharge of the obligation to affiliate seafarers to the supplementary insurance scheme for high-risk activities

In its previous comments the Committee requested the Government to provide information on the measures taken by the inspection services to promote and enforce the obligation placed on shipowners performing high-risk activities, which include fishing, to take out the supplementary insurance (SCTR) for such risks under Act No. 26790. The reason for the Committee’s request was that the statistics supplied by the Government on visits carried out by the inspection services appeared to account little for seafarers and that according to observations submitted by a trade union, many employers and shipowners had failed to subscribe to the SCTR.

It notes in this connection that the Government’s report does not contain the general information requested, such as the measures taken to strengthen the capacity of the inspectorate to supervise application of the national legislation in the maritime navigation and fishing sector, statistical information on the number of enterprises in the maritime fishing and navigation sectors affiliated to the SCTR for health, invalidity and survivors’ coverage. The Committee hopes that the Government will do its utmost to gather all this information and trusts that every effort will be made to enable the labour inspectorate to fulfil its duty of informing and supervising the maritime navigation and fishing sectors.

Complaints against the Chapsa and Atlántida fishing enterprises

In reply to the Committee’s previous comments on the complaints against the two abovementioned companies, the Government includes in its report the requested extracts of these proceedings. With regard to the Chapsa case, the inspection report finds that the legislation was complied with to the extent that Chapsa did subscribe to the SCTR for health, invalidity and survivors’ coverage. Listing the Chapsa workers registered with the SCTR, the report goes on to declare the case closed, citing compliance with the legislation. In the Atlántida case, the inspection report sent by the Government establishes, as noted by the Government in its previous report, that the company was fined because, although registered with the SCTR, it had failed to pay by 21 January 2002 the premium for invalidity and survivors’ coverage in the name of Mr. Juan Morales de la Cruz, victim of an occupational accident on 23 June 1998. The report also indicates that thereafter, in June 2002, a further inspection of the enterprise established that the premiums for invalidity and survivors’ coverage had still not been paid. A last visit to the enterprise in January 2003 to verify payment of the bonuses revealed that this worker no longer had an employment relationship with Atlántida, and the case was therefore closed.

The Committee notes this information. As regards the Atlántida case, it notes that the inspection report shows that although ordered to pay a fine, Atlántida had still not paid the contributions for invalidity and survivors’ coverage at the time of the worker’s departure from the enterprise, following which the case was closed. The Government explained earlier that when an enterprise fails to take out supplementary insurance for high-risk activities, or takes out inadequate insurance, it is liable vis-à-vis the social insurance institutions (ESSALUD and the Insurance Standardization Office (ONP)) for payment of benefits in the event of an accident sustained by one of its workers. The Committee requests the Government to indicate the manner in which the case of Mr. Juan Morales de la Cruz was managed, specifying in particular whether this worker actually received the assistance to which he was entitled under the Convention, and stating the body which actually covered the risk. Please also indicate whether Atlántida paid the fine, pursuant to Legislative Decree No. 910 and, if not, please specify the penalties imposed on it.

The Committee requests the Government to indicate the measures taken or envisaged, such as a review of the applicable penalties, to ensure that in practice shipowners do take out accident and sickness insurance for seafarers where this is compulsory, and that where they fail to do so, seafarers may nevertheless be paid all the benefits guaranteed by the Convention. Please provide in this connection information on the number of seafarers who have received assistance pursuant to the provisions of the Convention.

[The Government is asked to reply in detail to the present comments in 2005.]

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In its previous comments, the Committee noted the information provided by the Government with regard to the comments made in May 1999 and January and March 2000 by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates concerning the operational difficulties of the system of supplementary occupational risk insurance (SCTR) established under the Social Security Modernization Act No. 26790. The Committee pointed out the need for the Government to take adequate measures to prevent seafarers who are victims of accidents or who contract a disease from being left without protection and for this purpose to strengthen the inspection system to ensure that employers comply with the obligation to include their workers in the register of enterprises carrying out high-risk activities and to take out the SCTR envisaged by Act No. 26790 for this purpose. The Committee therefore requested information on the application in practice of the SCTR as it relates to seafarers.

On this subject, the Government indicates in its report that during 2001 at the national level a total of 1,184 enterprises were registered under the SCTR, which is a supplementary protection system for persons who are insured normally under the social security system in respect of health and who perform high-risk activities. Furthermore, over the past year, a total of 5,507 technical inspections were undertaken on occupational safety and health related to the supplementary occupational risk insurance, 640 of which were in construction, six in mining, 4,366 in industry and 495 in services. The purpose of these inspections is to verify that employers have complied with the obligation to take out this insurance. The Government adds that the function of inspection activities is not just to inspect, but also to provide guidance with regard to the rights and obligations deriving from labour law. The Committee notes this information with interest. However, it observes that the inspections referred to hardly appear to cover seafarers. It therefore requests the Government to provide information on the activities carried out by inspection bodies in this sector, including copies of the relevant reports and, where applicable, examples of the administrative sanctions imposed upon shipowners.

The Committee also requested the Government to provide information on whether the fishing enterprises Chapsa and Atlántida, which are referred to by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe, have also subscribed to the SCTR and, if not, to provide information on the cases referred to by the above trade union. With regard to the fishing enterprise Chapsa, the Committee notes the inspection carried out by the Sub-directorate of Occupational Health and Safety Inspection. During the inspection, it was verified that the enterprise was included on the register of employers carrying out high-risk activities and that it had paid the premium to take out the insurance policy for its workers, with health, invalidity and survivors’ coverage. It also notes that a further inspection on 14 October 2002 determined the number and names of the workers covered by the SCTR with health, invalidity and survivors’ coverage on the date of the programmed inspection. The Committee requests the Government to provide the text of the final report when it is available.

With regard to the fishing enterprise Atlántida, the Sub-directorate of Occupational Health and Safety Inspection, in accordance with the respective provisions, investigated an employment accident following a complaint by the Federation of Fishing Boat Owner-Masters of Peru. During the investigation, it verified that the enterprise was included on the register of enterprises carrying out high-risk activities and that it had taken out the SCTR insurance, with health coverage for the accident mentioned in the schedule with the Social Health Insurance Scheme (ESSALUD). However, it found that it had not complied with the obligation to take out the above supplementary insurance for invalidity and survivors’ coverage. Subsequently, on 5 December 2001, a follow-up inspection was carried out, which found that although on the date of the accident (23 June 1998) the enterprise provided justifications that it had taken out the SCTR with health coverage and made the payment of the corresponding premium in the name of Mr. Juan Morales de la Cruz, it could not establish having taken out the SCTR with invalidity and survivors’ coverage, nor the payment of the corresponding premium. In view of the above, a fine was imposed upon the enterprise, in accordance with Legislative Decree No. 910 (approved by Supreme Decree No. 020-2001-TR).

With regard to the cases referred to by the Federation of Fishing Boat Owner-Masters of Peru, the Government states that, at its request, the administrative authority investigated the employment accidents denounced in the enterprises Chapsa and Atlántida. The investigation undertaken found that the above enterprises were duly included in the register of employers carrying out high-risk activities, and that they were registered for the payment of remuneration to injured workers. However, financial penalties were imposed upon the enterprises based on the finding that they had not taken out the SCTR in relation to invalidity and survivors’ coverage, and had not paid the corresponding premium.

Without prejudice to the administrative penalties imposed, employers which do not comply with the obligation to register with the administrative labour authority or to take out supplementary occupational risk insurance for all workers covered by this obligation, or take out inadequate coverage, are liable for the cost of the benefits provided by ESSALUD and the Insurance Standardization Office (ONP) in the event of injury to workers, irrespective of their civil responsibility to the worker and his dependants for the damage and injury caused. In the event of an employment accident or occupational disease occurring as a direct consequence of failure to comply with occupational health and industrial safety standards, or serious negligence attributable to the employer or failure to comply with protection or prevention measures, the injury is covered by ESSALUD, the health care provider, the ONP or the insurer, although they may exercise the right to claim the cost of the benefits provided from the employer.

The Committee notes the Government’s statement with interest. It recalls that, under the terms of Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, a shipowner may cease to be liable for the grant of medical benefits and for the payment of wages in whole or in part in respect of the seafarer in the case of injury resulting in incapacity for work from the time at which such seafarer becomes entitled to cash benefits under compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents in force for seafarers in the territory in which the vessel is registered. The Committee requests the Government to provide information on the case of Mr. Juan Morales de la Cruz, with an indication on whether the corresponding premium has been paid to the SCTR for invalidity and survivors’ coverage and, if so, on the manner in which the institution has covered the accident. Finally, the Committee requests the Government to indicate whether the enterprises Chapsa and Atlántida have paid the corresponding premium to SCTR for invalidity and survivors’ coverage. It also requests it to indicate the negative effects that failure to pay the above premium has had on the workers in the above enterprises.

[The Government is asked to reply in detail to the present comments in 2003.]

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The Committee notes the additional information provided by the Government concerning the comments made in May 1999 and January and March 2000 by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe and Associates concerning the operational difficulties of the system of supplementary occupational risk insurance (SCTR) established by the Social Security Modernization Act No. 26790 in the area of health, which had been noted by the Committee in its observation in 2000.

With regard to the application in practice of the SCTR, and particularly the alleged cases of failure to pay the benefit for temporary incapacity and the survivors’ pension and funeral expenses, the Government once again provides information on the legal provisions which set out these benefits. With regard to the provision of the benefit for temporary incapacity, the Government indicates that the payment of this benefit to fishermen is envisaged in section 35 of Supreme Decree No. 03 98 SA, approving the Technical Standards for Supplementary Occupational Risk Insurance. In this respect, the Government indicates that the provision of the benefit for temporary incapacity is the responsibility of the Fishermen’s Social Benefits and Social Security Fund (CBSSP), and not of the employer. The Government also supplies a report on enterprises affiliated to the SCTR submitted by the Insurance Standardization Office (ONP). On the subject of the survivors’ pension and funeral expenses, it indicates that provision of the pension for total permanent invalidity and the survivors’ pension can be required of the ONP, provided that the employer is included in the register of enterprises carrying out the activities envisaged in Annex 5 to the Regulations issued under Act No. 26790. In this connection, sanctions are envisaged in the event of failure by the employer to register, in which event workers can take legal action under section 88 of the Regulations issued under Act No. 26790.

The Committee notes this information. It hopes that the Government will take adequate measures to prevent seafarers who are victims of accidents or who contract a disease being left without protection and will strengthen its inspection system for this purpose to ensure that employers comply with the obligation to include their workers in the register of enterprises carrying out high-risk activities and take out the SCTR for this purpose. In this regard, the Committee recalls that, under the terms of Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, a shipowner may cease to be liable for the expense of medical care and for the payment of wages in whole or in part due to the seafarer in the event of injury which results in incapacity for work provided that the injured seafarer is entitled to benefits under a compulsory sickness insurance scheme, a compulsory accident insurance scheme or a scheme of workmen’s compensation for accidents that is in force for seafarers in the territory in which the vessel is registered. The Committee would therefore be grateful if the Government would provide information in its next report on the application in practice of the supplementary occupational risks insurance scheme (SCTR) as it relates to seafarers. It also requests the Government to provide information (statistics, reports of inspection bodies and, if any, administrative sanctions imposed on shipowners, etc.) concerning the measures which have been taken or are envisaged to ensure that in practice, on the one hand, shipowners subscribe to this insurance scheme and, on the other hand, where they do not subscribe to this scheme, seafarers benefit as a minimum from the benefits guaranteed by this Convention in the event of sickness or injury. The Committee also requests the Government to indicate whether the fishing enterprises CHAPSA and ATLANTIDA, which are referred to by the Trade Union of Fishing Boat Owner-Masters of Puerto Supe, have also subscribed to the supplementary occupational risks insurance scheme and, if they have not, to provide information on the cases mentioned by the trade union.

[The Government is asked to report in detail in 2002.]

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The Committee notes the information supplied by the Government in its last report. It also notes that the Sindicato de Capitanes Potrones de Pesca de Puerto Supe y Anexos has supplied further information on the operating difficulties of the system of supplementary insurance against hazardous risks established by the Social Security Modernization Act on the Health Scheme (No. 26790). The Committee has already noted these difficulties in its comments on the application of Convention No. 56. The Committee also takes note of the information supplied by the Government in reply to the trade union’s comments.

The union states that the adoption of the Social Security Modernization Act on the Health Scheme (No. 26790) has resulted in the repeal of Act No. 18846 which granted compensation to fishermen and also to workers subject to special employment regimes in the event of temporary incapacity for work resulting from an occupational disease or industrial accident. The new regime established by Act No. 26790 affords less protection in this regard, despite the establishment of supplementary insurance for hazardous work. It seems that the provisions relating to this supplementary insurance are not sufficiently clear and 95 per cent of industrial employers and fishing boat owners have not subscribed to it. The supplementary information provided by the union refers to the case of several seafarers who are incapacitated for employment and have received no compensation from their employers who have referred the victims to the social security body.

In reply to these comments, the Government states that seafarers enjoy protection equivalent to that provided by Act No. 18846. In fact, in general, Act No. 27056 establishing a social security health scheme includes seafarers in its scope (section 4). Furthermore, in 1999, hired fishermen and self-employed fishermen were included as regular members of the social insurance health scheme, ESSALUD (Act No. 27177). Seafarers, fishermen and their dependants are thus entitled to benefits for prevention, promotion, recovery and rehabilitation, as well as cash benefits provided by ESSALUD. In addition, the regular members of ESSALUD may in certain cases be covered by a supplementary insurance for hazardous work (section 19 of Act No. 26790). This compulsory insurance is borne by employers who conduct high-risk activities, which include fishing. Employers who have not subscribed to this insurance are liable to the relevant administrative penalties and are responsible for the cost of benefits granted by the social security institute to workers in the event of accident. The Government considers, in these circumstances, that the provisions which govern this supplementary insurance are sufficiently clear and that, if the percentage of non-compliance with the obligation to contract this insurance is as high as that cited by the union, the inspection bodies will have to adopt the necessary measures.

The Committee notes all this information. It notes that the protection of seafarers in the event of sickness or accident is insured, on the one hand, by the 1987 regulations on harbour masters’ offices and maritime, river and lake activities, under which shipowners are responsible for medical assistance and maintenance of wages for seafarers in a situation of incapacity for work on board and, on the other hand, by the Social Security Modernization Act on the health scheme and its implementing regulations (social insurance regime in regard to health and supplementary insurance for hazardous work). The Committee notes, nevertheless, according to the information supplied by the trade union, that the system for protection of seafarers described above encounters difficulties of application in practice in that certain seafarers who are the victims of an accident or suffering from illness have no protection because neither the shipowner nor the general or supplementary health insurance system provides them with compensation for incapacity to work. In this regard, the Committee recalls that by virtue of Article 4, paragraph 3, and Article 5, paragraph 3, of the Convention, the shipowner may cease to be liable for medical assistance and payment of the whole or part of the wages due to a seafarer in the event of illness or accident resulting in incapacity for work, from the time at which the victim becomes entitled to medical benefits under a compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents in force for seafarers in the territory where the ship is registered. In these circumstances, the Committee would be grateful if the Government would communicate in its next report information on the application in practice of the supplementary insurance system for hazardous work in regard to seafarers. Please also supply information (including statistics, inspection body reports, administrative sanctions for shipowners, if any, etc.) on the measures taken or envisaged to ensure that in practice, on the one hand, employers subscribe to this insurance and that, on the other hand, notwithstanding failure to conclude such insurance, seafarers are entitled to the benefits guaranteed to them by this Convention in the event of sickness or accident.

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The Committee notes with interest the text of the Regulations respecting harbour masters' offices and maritime, fluvial and lacustrian activities of 1987. It notes, however, that these Regulations do not contain express provisions concerning the shipowner's liability to provide, at his own expense, board and lodging to sick or injured seamen, as required by Article 3(b) of the Convention and as was provided for in the previous Regulations of 1951 (section 664(b)). The Committee therefore would be grateful if the Government would indicate, in its next report, how effect is given in the national legislation to this provision of the Convention. The Committee also asks the Government to continue to provide information on the implementation of the Convention supplying, in particular, the texts of any amendments to the above Regulations.

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The Committee notes that the Government's report has not been received. It must therefore repeat is previous observation which read as follows:

In reply to the Committee's previous comments concerning Article 4, paragraph 1 (liability of the shipowner to provide medical care until the sick or injured seaman has been cured) and Article 8 of the Convention (obligation of the shipowner to safeguard property left on board by sick, injured or deceased persons), the Government states that the study prepared by the subcommittee set up by the Permanent Committee of the Ministry of Shipping for the Evaluation of International Conventions and Recommendations (CECMAL-OIT) and containing recommendations for the amendment and supplementing of sections 691, 723 and 689 of the regulations respecting harbour masters' offices and the merchant marine will again be revised by the Permanent Committee. The Committee takes note of this information. It hopes that the revision of the study will take place soon and that the amendments in question will be adopted in the near future so as to lay down more precisely the obligations of the shipowner in accordance with the above-mentioned Articles of the Convention. It requests the Government to indicate any progress made in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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In reply to the Committee's previous comments concerning Article 4, paragraph 1 (liability of the shipowner to provide medical care until the sick or injured seaman has been cured) and Article 8 of the Convention (obligation of the shipowner to safeguard property left on board by sick, injured or deceased persons), the Government states that the study prepared by the subcommittee set up by the Permanent Committee of the Ministry of Shipping for the Evaluation of International Conventions and Recommendations (CECMAL-OIT) and containing recommendations for the amendment and supplementing of sections 691, 723 and 689 of the regulations respecting harbour masters' offices and the merchant marine will again be revised by the Permanent Committee.

The Committee takes note of this information. It hopes that the revision of the study will take place soon and that the amendments in question will be adopted in the near future so as to lay down more precisely the obligations of the shipowner in accordance with the above-mentioned Articles of the Convention. It requests the Government to indicate any progress made in this respect.