Repatriation of Seamen Convention, 1926 (No. 23) - Peru (RATIFICATION: 1962)

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The Committee notes the Government’s indication, in its reports on the application of various maritime Conventions, that the Maritime Labour Convention, 2006 (MLC, 2006), is being examined within the Technical Labour Committee of the National Council for Labour and Employment Promotion. The Committee also notes the adoption, by Supreme Decree No. 015-2014-DE of 28 November 2014, of the Regulations implementing Legislative Decree No. 1147 on the strengthening of the armed forces in terms of the competencies of the National Maritime Authority – Port and Coastguard Directorate-General (DICAPI) (hereinafter Regulations implementing Legislative Decree No. 1147). The Committee also notes the information provided by the Government according to which officials of the Labour Inspection Policies Directorate-General at the Ministry of Labour and Employment Promotion (hereinafter Ministry of Labour) and of the National Labour Inspection Supervisory Authority (SUNAFIL) are drafting a “Maritime Labour Protocol” concerning inspections on board ships and forecast that the drafting process will be completed by January 2017. In order to provide an overview of matters arising in relation to the application of the maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

The Committee observes that article 55 of the Political Constitution of Peru provides that treaties concluded by the State and still in force form part of national law. On this basis, the Committee requests the Government to confirm whether, in the absence of specific national provisions that give effect to the self-executing provisions of the Conventions, the latter provisions are directly applicable in Peru.

Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8)

Article 2(2) of the Convention. Amount of unemployment indemnity in case of shipwreck. In its previous comments, the Committee reminded the Government that the compensation mechanism of the common labour system, based on length of service, is not in conformity with the Convention, which provides for compensation based on the actual period of unemployment in the event of the loss or foundering of the ship. The Committee notes the Government’s indication that section 449(d) of the Regulations implementing Legislative Decree No. 1147 provides that the foundering of a national vessel does not exempt the shipowner from payment of compensation resulting from the loss or foundering of the ship, in accordance with the national regulations and international instruments to which Peru is party. The Committee requests the Government to indicate whether national provisions have been adopted which establish the amount of indemnity provided for in section 449 of the abovementioned Decree.

Placing of Seamen Convention, 1920 (No. 9)

Articles 1–10 of the Convention. System for the placement of seafarers. In its previous comments, the Committee noted that the Convention was applied through Supreme Decree No. 018-73/MA of 18 December 1973, establishing the Seafarers’ Placement Office, and Ministerial Decision No. 1905-73/MA/SF of 21 December 1973, issuing the regulations for the Seafarers’ Placement Office. However, the Committee notes the Government’s indications that both legislative texts have been repealed. The Committee also notes the Government’s statement that seafarers’ placement offices ceased to operate after the Regulations implementing Act No. 26610 were issued and that there are currently no public or private bodies responsible for placing seafarers in employment. The Committee therefore requests the Government to indicate the measures taken to ensure that an efficient and adequate system of offices for finding employment for seafarers without charge is organized and maintained.

Seamen’s Articles of Agreement Convention, 1926 (No. 22)

Article 3 of the Convention. Guarantees relating to the signature of articles of agreement. In its previous comment, the Committee asked the Government to indicate the manner in which guarantees relating to the signature of articles of agreement are respected, as established by the Convention. In this respect, the Government refers to the Regulations implementing Legislative Decree No. 1147. The Committee observes that although section 446 of the aforementioned Regulations guarantees the formalization before the Peruvian consul of articles of agreement concluded abroad, the said section does not establish the conditions for the signature of articles of agreement when the latter are concluded in Peru. The Committee therefore requests the Government to indicate the provisions adopted or contemplated to give effect to Article 3 of the Convention.

Article 4. Clauses on the rules of jurisdiction. The Committee notes that section 444.4 of the Regulations implementing Legislative Decree No. 1147 stipulates that the competent authority shall establish the clauses to be included in employment contracts for seafarers. However, the Committee observes the Government’s indication that no supplementary regulations have been issued regarding the clauses governing articles of agreement. The Committee recalls that, under the terms of the Convention, adequate measures must be taken to prevent articles of agreement from containing any stipulation by which the parties purport to contract in advance to depart from the ordinary rules as to jurisdiction over the agreement. The Committee therefore requests the Government to indicate the measures taken or contemplated to give effect to Article 4 of the Convention.

Article 5. Document recording service on board. The Committee notes that, under section 444.3 of the Regulations implementing Legislative Decree No. 1147, shipowners shall adopt the necessary measures to ensure that seafarers, including the ship’s master, can easily obtain on board ship clear information on the terms of their employment, in particular a copy of the employment contract, and shall provide seafarers with a document containing a record of their service on board. However, the Committee observes that the Regulations implementing Legislative Decree No. 1147 do not determine the form or the content of the record of service on board. The Committee recalls that, under the terms of the Convention, seafarers must be given a document containing a record of their service on board and that the legislation shall determine the form of the document, the particulars to be recorded and the manner under which the latter are to be entered in it. The Committee therefore requests the Government to indicate the measures taken to give effect to Article 5 of the Convention.

Article 9. Termination of an agreement for an indefinite period. In its previous comment, the Committee asked the Government to indicate the provisions that give effect to Article 9, under which an agreement for an indefinite period may be terminated by either party in any port where the vessel loads or unloads, provided that the notice specified in the agreement shall have been given in writing, which shall not be less than 24 hours. National law shall determine the exceptional circumstances in which notice even when duly given shall not terminate the agreement. The Committee notes that the Regulations implementing Legislative Decree No. 1147 do not give effect to the provisions of this Article. The Committee therefore requests the Government to indicate the provisions adopted or contemplated to give effect to Article 9 of the Convention.

Article 11. Immediate discharge. The Committee observes that the Regulations implementing Legislative Decree No. 1147 do not lay down the conditions for immediate discharge. The Committee recalls that, under the Convention, national law shall determine the circumstances in which the owner or master may immediately discharge a seafarer. The Committee therefore requests the Government to indicate the measures taken to give effect to Article 11 of the Convention.

Article 14(2). Separate certificate regarding the quality of work. In its previous comments, the Committee asked the Government to indicate how it is ensured that seafarers can obtain a separate certificate regarding the quality of their work from the ship’s master. The Committee notes the Government’s reference to the Regulations implementing Legislative Decree No. 1147. However, the Committee observes that the Regulations do not give effect to this provision of the Convention. The Committee therefore requests the Government once again to indicate the manner in which effect is given to Article 14(2) of the Convention.

Repatriation of Seamen Convention, 1926 (No. 23)

Article 3(1) and (4) of the Convention. Conditions of repatriation. In its previous comments, the Committee asked the Government to clarify the status of law and practice regarding the conditions under which Peruvian and foreign seafarers have the right to repatriation. The Committee notes the information supplied by the Government to the effect that the Regulations implementing Legislative Decree No. 1147 govern the conditions of repatriation of seafarers without distinction of nationality in accordance with this provision of the Convention.

Article 4(c). Repatriation expenses in the event of illness. In its previous comments, the Committee asked the Government to indicate how it is ensured that the expenses of repatriation are not a charge on the seafarer in the event of illness. The Committee notes with interest that section 447.1 of the Regulations implementing Legislative Decree No. 1147 prohibits the expenses of repatriation being a charge on the seafarer in the event of illness.

Article 6. Obligations of the public authority of the country in which the vessel is registered. In its previous comments, the Committee asked the Government to provide information on the instructions received by the public authority to ensure the repatriation of seafarers without distinction of nationality and to advance repatriation expenses if necessary. The Committee notes that, under section 775.2 of the Regulations implementing Legislative Decree No. 1147, the National Maritime Authority must help to enable the prompt repatriation or re-embarkation of seafarers by the shipowner further to a marine accident. The Committee also notes the Government’s indication that the analysis of the requested information is still in progress. While noting this information, the Committee requests the Government to indicate the measures taken to give full effect to Article 6 of the Convention.

Food and Catering (Ships’ Crews) Convention, 1946 (No. 68)

Article 3 of the Convention. Cooperation with organizations of shipowners and seafarers. In its previous comments, the Committee asked the Government to provide information on cooperation between the competent authority and organizations of shipowners and seafarers regarding food and catering on board ship. The Committee observes that although the Government supplies information on the coordination of activities between the authorities concerned, it does not indicate how cooperation between the competent authority and organizations of shipowners and seafarers is ensured. The Committee therefore requests the Government once again to provide information on the measures taken in this respect, in accordance with Article 3 of the Convention.

Article 11(2). Refresher courses. In its previous comments, the Committee asked the Government to provide information on refresher courses for catering staff on ships. The Committee notes the Government’s indication that training for seafarers in food and catering on ships is carried out by the shipping companies in coordination with the various maritime and other training centres that provide training in the practical aspects of cooking, food and personal hygiene, food storage, management of stocks, and protection of the environment, and safety and health in catering. The Committee notes this information.

Article 12. Collection and dissemination of information and recommendations. In its previous comments, the Committee asked the Government to indicate the measures taken to ensure that the competent authority collects and disseminates information and issues recommendations on food and catering on ships. The Committee notes the Government’s indication that the analysis of the requested information is still being completed with a view to forwarding the information to the Committee as soon as possible. The Committee requests the Government once again to provide details of the measures taken to collect and disseminate information and issue recommendations on food and catering.

Certification of Ships’ Cooks Convention, 1946 (No. 69)

Article 4(4) of the Convention. Examination for a certificate of qualification. The Committee recalls that, under the terms of the Convention, the competent authority shall prescribe the examination for the granting of a certificate of qualification as ship’s cook directly or, subject to its control, by an approved school for the training of cooks or other approved bodies. The Committee notes the Government’s indication that the training of ships’ cooks is conducted by the shipping companies in coordination with the various maritime and other training centres that provide training in the practical aspects of cooking, food and personal hygiene, food storage, management of stocks, and protection of the environment, and safety and health in catering. The Committee requests the Government to indicate the measures taken by the competent authority to give effect to Article 4(4) of the Convention and to send information especially on the organization and content of the examination for the granting of a certificate of qualification as ship’s cook.

Article 6. Recognition of certificates. In its previous comments, the Committee asked the Government to indicate whether or not provision had been made for the recognition of certificates of qualification issued by other countries. The Committee notes the Government’s indication that DICAPI recognizes foreign qualifications pursuant to section 385 of the Regulations implementing Legislative Decree No. 1147.

Medical Examination (Seafarers) Convention, 1946 (No. 73)

Article 3 of the Convention. Recognition of certificates. In its previous comments, the Committee asked the Government to provide information on the content of medical examinations for seafarers. The Committee notes with interest the adoption of Executive Decision No. 0619-2010/DCG of 13 August 2010, issuing regulations governing medical examinations for merchant navy personnel.

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)

Article 2(a)(i) of the Convention. Safety standards. Substantial equivalence to Article 7 of Convention No. 134. Prevention of accidents. In its previous comments, the Committee asked the Government to provide information on the members of the crew responsible for accident prevention. The Committee notes the Government’s indication that accident prevention on board ship is the responsibility of the ship’s master, pursuant to sections 387, 400, 402, 403, 407, 408 and 409 of the Regulations implementing Legislative Decree No. 1147. The Committee notes this information.

Article 2(b) and (f). Exercise of effective jurisdiction or control by the flag State. In its previous comments, the Committee asked the Government to provide information on the control of ships flying the Peruvian flag with respect to safety on board ship, social security and conditions of employment. The Committee notes that sections 12, 14, 16, 312, 581, 603 and 642–645 of the Regulations implementing Legislative Decree No. 1147 establish a system of control over safety on board ship. The Committee also notes the Government’s indication that, under section 3 of the General Labour Inspection Act (No. 28806) the Ministry of Labour is responsible for the inspection of merchant ships, regardless of the flag they fly. The Committee notes this information.

Article 2(d)(i). Procedures for the engagement of seafarers on Peruvian ships. The Committee notes the Government’s indication that there are currently no public or private entities responsible for the placement of seafarers. The Committee recalls that, under the terms of the Convention, the Government must ensure that there are adequate procedures for the engagement of seafarers on ships registered in its territory. The Committee therefore requests the Government to indicate the measures taken in law or in practice to ensure compliance with this provision of the Convention.

Article 2(d)(ii). Procedures for the transmission of complaints concerning the engagement of seafarers on foreign ships. The Committee notes the Government’s indication that, under section 100 of the Regulations implementing Legislative Decree No. 1147, when port State officials (OSERP) detect any defects which impede the sailing of the ship, they notify the harbourmaster’s office with a view to informing the flag State administration and, where appropriate, the recognized organizations that have issued relevant certificates on behalf of the flag State. While noting this information, the Committee recalls that, under the terms of the Convention, the Government must ensure that any complaint concerning the engagement in its territory of foreign seafarers on ships registered in a foreign country is reported to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office. The Committee therefore requests the Government to indicate the measures taken to give effect to this provision of the Convention.

Article 2(g). Publication of the report on an inquiry into a serious accident. In its previous comments, the Committee asked the Government to indicate how it is ensured that an official inquiry is held in the event of a serious maritime accident. The Committee notes the Government’s indication that the DICAPI has a department for the investigation of maritime accidents, which is responsible for holding the relevant inquiries and forwarding the information to the corresponding bodies and organizations. The Committee recalls that the requirement of publication can be satisfied when the final report is made available to the interested parties and the conclusions are announced publicly (see 1990 General Survey on labour standards on merchant ships, paragraph 258). The Committee therefore requests the Government to clarify the manner in which the conclusions of the department for the investigation of maritime accidents are published.

Article 4. Port State control. In its previous comments, the Committee asked the Government to specify whether complaints may be submitted to the port authority by professional bodies, associations or trade unions. The Committee notes the Government’s indications that any person with a legitimate interest, including trade unions and other professional bodies, may voice grievances to the port authority and file complaints through the system established at the Ministry of Labour, which is responsible for the inspection of merchant ships, irrespective of the flag they fly. The Committee notes this information.

Labour Inspection (Seafarers) Convention, 1996 (No. 178)

Article 1(7) of the Convention. Scope of inspection. In its previous comments, the Committee asked the Government to clarify the scope of inspection of seafarers’ working and living conditions. The Committee notes the drafting of the “Maritime Labour Protocol”. The Committee also notes that sections 642.1 and 642.2 of the Regulations implementing Legislative Decree No. 1147 provide that naval vessels and craft inspected by the Inspection and Audit Office of the National Maritime Authority must fulfil all conditions for ensuring the safety of human life at sea, conditions of accommodation and catering, and conditions of health and hygiene. The Committee requests the Government to indicate whether the Inspection and Audit Office investigates other aspects of seafarers’ working and living conditions such as conditions relating to minimum age, articles of agreement, recruitment, manning, qualifications, hours of work, prevention of occupational accidents, medical care, sickness and injury benefits, social welfare and related matters, and repatriation. The Committee also requests the Government to provide updated information on the drafting of the “Maritime Labour Protocol”.

Article 3(1). Periodic inspection of registered ships. In its previous comments, the Committee asked the Government to indicate whether all Peruvian-flagged vessels above 500 gross tonnage are inspected at intervals not exceeding three years, with a view to verifying that seafarers’ working and living conditions are in conformity with the national legislation. The Committee notes that the Government does not provide any information in reply to this request. However, the Committee observes that section 649 of the Regulations implementing Legislative Decree No. 1147 provides that national vessels undertaking international voyages must undergo the necessary inspections, together with the annual or periodic examination, to verify that they observe the appropriate conditions regarding accommodation, health, hygiene, prevention of occupational accidents, and food and catering. The Committee notes this information.

Article 4. Qualifications of inspectors. In its previous comments, the Committee asked the Government to indicate by what means it is ensured that inspectors responsible for verifying seafarers’ working and living conditions have appropriate qualifications to perform their duties. The Committee notes the Government’s indication that the DICAPI has a specialized department and OSERP officials perform duties in ports. However, the Committee notes the Government’s indication that it is for the Ministry of Labour to conduct inspections on board merchant ships, pursuant to section 3 of Act No. 28806. The Committee therefore requests the Government to provide information on the qualifications of inspectors of the Ministry of Labour who conduct inspections on board ship.

Article 9(1). Inspection report. In its previous comments, the Committee asked the Government to indicate by what means it is ensured that, in the case of ship inspections, one copy of the inspection report is communicated to the master of the ship and another copy is posted on the ship’s noticeboard for the information of the seafarers. The Committee notes the Government’s indication that section 45(a) and (b) of Act No. 28806 provides that when the labour inspectorate establishes non compliance with social and labour obligations, it issues an infringement report and notifies the employer to that effect. However, the Committee observes that the aforementioned provision does not ensure that the master of the inspected ship receives a copy of the infringement report or that the report is posted on the ship’s noticeboard for the information of the seafarers. The Committee therefore requests the Government once again to indicate how effect is given to Article 9(1).

Article 9(2). Submission of the inspection report pursuant to a major incident. In its previous comments, the Committee asked the Government to specify how it is ensured that, in the case of a ship inspection pursuant to a major incident, the inspection report is submitted as soon as practicable, but not later than one month, following the conclusion of the inspection. The Committee notes the Government’s indication that section 13 of Act No. 28806 provides that the investigation or verification activities of the labour inspectorate shall be carried out within the time frame indicated for each specific case, though this may not exceed 30 working days and, where necessary, authorization may be given to prolong the verification activity. The Committee therefore requests the Government once again to indicate which measures ensure that the inspection report pursuant to a major incident is submitted as quickly as possible.

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Articles 3(1) and 4(c) of the Convention. Conditions for repatriation. The Committee notes the adoption of Supreme Decree No. 076-2005-RE on consular regulations, which repeals Supreme Decree No. 002-79-RE on consular regulations. Noting, however, that both decrees give only partial effect to the basic requirements of the Convention, the Committee requests the Government to clarify the state of law and practice with respect to the exact conditions under which seafarers are entitled to repatriation and to forward copies of all relevant legislative or regulatory texts.

Article 3(4). Repatriation of foreign seafarers. In the absence of any indication in the Government’s report concerning the repatriation of foreign seafarers, the Committee again requests the Government to provide full particulars on the application of this Article of the Convention, and to transmit copies of any relevant laws or regulations.

Article 5(1). Repatriation expenses. The Committee notes the Government’s reference to Supreme Decree No. 076-2005-RE presumably as an instrument implementing the requirements of the Convention with regard to repatriation expenses. It notes, however, that section 413(d) of the Decree merely provides that the maintenance and repatriation of seafarers are the responsibility of the shipowner, or ship agent in the case of sale of ship or shipwreck, while section 413(g) provides that the master must arrange for the medical treatment and repatriation of a seafarer left behind by reason of illness. The Committee recalls that the expenses of repatriation must cover the transportation charges, accommodation and food for the seafarer during the journey and maintenance up to the time fixed for his/her departure. The Committee therefore requests the Government to take the necessary measures in order to give full effect to the requirements of this Article of the Convention.

Article 6. Responsibility of the public authority. The Committee notes that the consular authorities may draw upon the “Humanitarian Legal Assistance and Consular Services Programme” in order to cover repatriation expenses. It understands that, in accordance with section 276 of the consular regulations approved by Supreme Decree No. 076-2005-RE, the aforementioned programme is limited to those cases where repatriation of nationals is granted on grounds of destitution and extreme necessity. The Committee requests the Government to provide additional explanations in this respect, in particular as regards the type of expenses covered and the conditions under which repatriation expenses are given in advance.

Part V of the report form. Practical application. The Committee notes the statistical information, provided by the Government in its report, concerning the number of repatriations of seafarers effected from April to June 2010. The Committee requests the Government to continue to provide up-to-date information on the practical application of the Convention.

Finally, the Committee recalls that the Maritime Labour Convention, 2006 (MLC, 2006), contains in Regulation 2.5, Standard A2.5 and Guideline B2.5, up-to-date and more detailed requirements on repatriation that revise existing standards on repatriation set out in Convention No. 23 and the Repatriation of Seafarers Convention (Revised), 1987 (No. 166). 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 of any decision taken in this respect.

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The Committee notes the information provided by the Government. It draws the Government’s attention to the following points.

Article 3, paragraph 1, and Article 4(c), of the Convention. Arrangement for repatriation. Under the terms of section 354 of Supreme Decree No. 002‑79 RE, as amended, issuing consular regulations, “masters of ships shall be obliged to receive, as passengers and for one-third of the normal value of the ticket for the return journey, persons landed by reason of sickness who are referred to them by consular agents”. The Committee recalls that, by virtue of the Convention, any seafarer 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, among other matters, determine who shall bear the charge of repatriation. The expenses of repatriation may not be charged to the seafarer if he has been landed by reason of illness and not due to his own wilful act or default (Article 4(c) of the Convention). The Committee therefore requests the Government to indicate the person who is to bear the expenses indicated in this section of the national legislation.

Article 3, paragraph 4. Repatriation of foreign seafarers. Section 361 of Supreme Decree No. 002-79 RE, as amended, provides that, in the case of national vessels abroad, and following authorization by the consular agent, the crew may, in case of a lack of Peruvian personnel, be completed with foreign personnel. However, neither Supreme Decree No. 002-79 RE, as amended, nor Supreme Decree No. 028-DE/MPG of 25 May 2001, issuing regulations under the Act on the control and supervision of maritime, river and lake transport, contain provisions on the repatriation of foreign seafarers. The Committee nevertheless recalls that, in accordance with the Convention, the conditions under which a foreign seafarer engaged in his own country or in a country other than his own has the right to be repatriated shall be as provided by national law or, in the absence of such legal provisions, in the articles of agreement. It therefore requests the Government to provide full particulars on the application of this Article of the Convention.

Article 5, paragraph 1. Repatriation expenses. Under the terms of section 355 of Supreme Decree No. 002-79 RE, as amended, in the case of the dismissal of a seafarer for a legitimate reason, the latter shall be repatriated to his port of origin. The amount of the price of the ticket and a sum of money sufficient for his subsistence in the port in which he is to be landed shall be handed over to the consular agent. Section 364 of the Supreme Decree also provides that consular agents shall be responsible for verifying that the articles of agreement concluded for engagement on a foreign vessel and those concluded abroad for engagement on a vessel flying the national flag shall contain a clause guaranteeing, for seafarers landed by reason of sickness or for any other lawful cause, the payment of the price of the voyage completed between the port of debarkation and the port of Callao or the port of engagement. The Committee recalls that the expenses of repatriation shall include the transportation charges, the accommodation and the food of the seafarer during the journey and the maintenance of the seafarer up to the time fixed for his departure. It requests the Government to take the necessary measures to bring national law and practice into conformity with these provisions.

Article 6. Expenses of repatriation of foreign seafarers. The Government indicates in its report that only the public authority of the country in which the vessel is registered, and which is responsible for ensuring the repatriation of all seafarers without distinction as to nationality, decides on cases in which it is necessary to provide repatriation expenses in advance. The Committee requests the Government to indicate whether the authorities have received instructions to advance repatriation expenses to foreign seafarers.

Part V of the report form. The Committee requests the Government to provide in its next report a general appreciation of the manner in which the Convention is applied including, for instance, information on the number of seafarers repatriated during the course of the year covered by the report, the number and nature of the infringements reported, etc.