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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Committee notes the observations made by Nautilus International received with the Government’ second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Cayman Islands, respectively, on 18 January 2017 and on 8 January 2019. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. In its previous comment, the Committee noted the Government’s indication that doubt has arisen as to whether occasional workers, such as nannies and security guards, were to be regarded as seafarers, and that this issue has been discussed among the members of the Red Ensign Group of British Registries (REG). The Committee requested the Government to explain how it will ensure that the procedure of Article II, paragraphs 3 and 7, which allows a national determination to be made, in the event of doubt, for certain categories of persons not to be regarded as seafarers, is followed in such cases. The Committee notes the Government’s indication that, as part of the REG, the Cayman Islands uses the UK MLC Tripartite Working Group (TWG) to consult shipowner and seafarer representative organizations where required by the MLC, 2006. The latest terms of reference for the TWG (agreed in 2013) state that the purpose of the TWG includes considering any derogation, exemption or other flexible application of the MLC to UK or REG ships for which the Convention requires consultation with shipowners’ and seafarers’ organizations. The Government indicates that any UK (and REG) determinations made by the MCA (the Competent Authority for the UK’s implementation of the MLC) on the basis of consultation with the TWG (other than vessel-specific decisions) are published. Regarding the determination made with respect to “Occasional Workers”, the Government indicates that the matter of making the distinction between a seafarer for the purposes of the MLC, 2006, and other workers on board was discussed at a TWG meeting prior to MLC entry into force. Following some discussion, the group agreed that the Convention seeks to ensure the seafarers’ interests are adequately protected, and this may be achieved in different ways under shore-based employment arrangements particularly for those (like Bodyguards) probably on board for limited periods. The Government further states that it was also agreed that there might be instances where people were working on board (i.e. not a passenger) but that it was not appropriate to insist on full compliance with every detail of the Convention and it was suggested that any equivalence would need to be shown to meet the requirements of the Convention prior to it being agreed as an acceptable alternative. It was suggested that it might be best if such instances were handled through guidance to surveyors. The TWG agreed with this more flexible approach and therefore the Government developed the policy on “occasional workers” which was agreed within the REG. The Committee takes note of this information, which addresses its previous request.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee noted that, under Cayman Islands Guidance Note (CIGN) 02/2013 of 1 September 2014, entitled Application of the Maritime Labour Convention to Pleasure Yachts not Engaged in Trade, this kind of yachts are not required to comply with the requirements of the Convention. The Committee requested the Government to indicate how it ensures that all ships ordinarily engaged in commercial activities are covered by the Convention. The Committee notes the Government’s indication that a Cayman Islands ship must be in compliance with the MLC, 2006, before undertaking any commercial activity. The Government further indicates that if a ship charters or otherwise engages in commercial activity at any time without having been inspected and demonstrating compliance with the MLC, 2006, then it would be in breach of Cayman Islands Law. The Committee notes that none of the regulations implementing the MLC, 2006, apply to pleasure vessels, which are strictly defined under the Merchant Shipping Law (2016 Revision). It further notes that Shipping Notice 03/2012 on the implementation of the MLC, 2006, states that the MLC, 2006, applies to all ships which are ordinarily engaged in commercial activities, including yachts engaged in trade. The Committee also notes that paragraph 3.5 of Shipping Notice 02/2013 provides useful additional information as it states that “if a pleasure yacht not engaged in trade holds a Statement of Compliance with the Large Yacht Code it cannot register commercially or engage in trade until it has been verified that the yacht is fully compliant with the Large Yacht Code and any outstanding items on the Statement have been addressed (which would include achieving full MLC, 2006, compliance)”. The Committee takes note of the information provided by the Government which addresses its previous request.

Regulation 1.2 and the Code. Medical certificate. The Committee requested the Government to indicate how it ensures the right to a further examination for seafarers who have been refused a certificate or have had a limitation imposed on their ability to work, as required under Standard A1.2, paragraph 5. The Committee also requested the Government to indicate how effect is given to the requirement under Standard A1.2, paragraph 7(b) (period of validity for a certificate of colour vision). The Committee notes the Government’s indication that, as the Cayman Islands do not issue its own medical certificates and rather accept those of certain other approved countries which have all ratified the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), or the MLC, 2006, under which both require that the seafarers are given the right of appeal, the Government defers to the practice regarding review for seafarers who have been refused certificates in the countries that issued the medical certificates. The Government further indicates that for the same reason, the maximum validity for colour vision was not specifically addressed in the law given that the Cayman Islands does not issue its own medical certificates. The Government states that this should however form part of Cayman Law and that it shall amend the regulations. The Government further states that in the short term it shall update Shipping Notice 05/2011, entitled Issue of Endorsements Attesting to the Recognition of a Certificate of Competency, to regulate this issue. The Committee notes that Shipping Notice 05/2011 states in paragraph 3.2 that “Medical certificates issued by, or on behalf of, a country listed on the “STCW Whitelist” or a country which has ratified the Maritime Labour Convention, 2006, are accepted for service on Cayman Islands ships. Such certificates should be issued in accordance Regulation I/9 of the STCW Convention.” The Committee also notes that Shipping Notice 05/2011 further states that medical certificates should clearly state that they are issued by, or on behalf of, the Governments of the above countries and therefore it is insufficient to hold a certificate issued by a doctor residing in the above countries if the certificate is not issued, by or on behalf of, the Government of that country. The Committee takes note of this information, which addresses its previous request.

The Committee further notes that, despite the DMLC, Part I, providing that a “valid medical certificate is a Certificate issued under the authority of one of the list of countries whose medical certificates are accepted listed in Shipping Notice CISN 05/2011”, paragraph 7 of the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations, 2014 allows for a medical fitness certificate issued by a country or territory outside the ones listed in Shipping Notice CISN 05/2011 to be equivalent to a medical fitness certificate issued under these Regulations, but until the expiry date specified on the certificate. Similarly, paragraph 7(2) provides that the Chief Executive Officer may from time-to-time approve a medical fitness certificate to be issued by an authority empowered from a country or territory outside the Islands not listed in the Schedule to these Regulations, which shall be considered equivalent to a medical fitness certificate issued under these Regulations, but only until the expiry date specified on the certificate. The Committee requests the Government to clarify how it ensures compliance with the requirements of Standard A1.2 when it considers such kind of certificates equivalent to a medical fitness certificate issued by country or territory listed in Shipping Notice CISN 05/2011.

Regulation 2.4 and Standard A2.4, paragraph 2. Entitlement to leave. Minimum paid annual leave. Method of calculation. The Committee requested the Government to provide information following the observation submitted by the ITF regarding Regulation 2.4, which draws attention to the discrepancy between the entitlement of public holiday for seafarers, at eight days, and that same entitlement for shore workers, which is 11 days. The Committee notes the Government’s indication that, as there are currently no Cayman Islands resident seafarers, the Cayman Islands considered this carefully and chose to follow the UK’s requirements which is for a minimum of 8 days public holidays rather than 11 for shore workers. The Government further indicates the national provisions do not prevent seafarers to be granted more shore leave and that in practice most seafarers do receive more. The Government also indicates that the minimum holiday entitlement in the Cayman Islands granted to seafarers is higher than for shore workers (excluding public holidays) which is much less than 30 days. The Committee recalls, however, that according to Guideline B2.4, paragraph 4, public and customary holidays “recognized as such in the flag State” should not be counted as part of annual leave with pay, whether or not they fall during the annual leave. The Committee requests the Government to indicate how it has given due consideration to this provision of the Convention.

The Committee noted that section 10 of the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement, Shipowners’ Liabilities and Wages) Regulations, 2014, provides that: (1) the shipowner shall ensure that every seafarer is given an annual leave entitlement of not less than 38 days per annum; (2) annual leave shall be accrued at 3.2 days per month and, where a seafarer does not serve a full year, this shall be calculated on a prorated basis; and (3) the 38-day leave entitlement is inclusive and there is no further entitlement to any customary and public holidays. The Committee requested the Government to explain how it ensures that seafarers are always provided a minimum of at least 2.5 calendar days of leave per month of employment, excluding customary and public holidays. The Committee notes the Government’s indication that the total minimum paid leave entitlement for a seafarer serving on a Cayman Islands ship is 38 days per year and is composed of two distinct components: a minimum of 30 days paid Annual Leave and an additional 8 days leave to compensate for working on public holidays. The Government indicates that, during a period of service on board a Cayman Islands ships, the annual leave is calculated on the basis of: (i) annual leave at a minimum rate of 2.5 days per month of employment; and (ii) compensatory leave of 0.66 days per month for public holidays. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs from seafarers. The Committee noted that, under sections 8(2) and 8(4) of the Merchant Shipping (Maritime Labour Convention) (Repatriation) Regulations, 2014, the shipowner may recover damages in respect of repatriation costs, or relief and maintenance costs, where the agreement is terminated because of the “seafarer’s misconduct”. Recalling Standard A2.5, paragraph 3, the Committee requested the Government to provide information on the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarer’s employment obligations”. The Committee notes the Government’s indication that Schedule 1 point 13 of the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement, Shipowner’s Liabilities and Wages) Regulations, 2014 provides that all Seafarers’ employment agreements (hereafter SEA) must contain provision on the seafarer’s entitlement to repatriation and the circumstances in which the seafarer is required to meet or reimburse the shipowner for the costs of repatriation. The Government further indicates that, in all cases, regardless of whether a seafarer may be in serious default of the SEA obligations or not, the shipowner is required to arrange and pay for repatriation as per regulation 4 of the Merchant Shipping (Maritime Labour Convention) (Repatriation) Regulations, 2014. The Committee also notes the Government’s indication that where a dispute later arises as to whether or not the seafarer is in “serious default of his obligations” this may be submitted to the Shipping Master for consideration and decision under section 96 of the Merchant Shipping Law 2016 Revision. When deciding on such matters the Shipping Master will give due consideration to the terms of the SEA and any disciplinary procedure or code of conduct referred to therein. The Committee also notes that the Model Cayman Islands SEA provides in paragraph 10 that the seafarer may not be entitled to repatriation at the expense of the shipowner in circumstances where he/she has been dismissed on disciplinary grounds or have breached his/her obligations under his/her Agreement. In such circumstances the shipowner will still be liable to repatriate the seafarer but is entitled to recover from any wages due to him/her the cost of doing so. The Committee further notes that paragraph 14 of the model SEA indicates that the disciplinary rules and procedure applicable to seafarers, to which paragraph 10 refers to, are set out in the Code of Conduct for the Merchant Navy, which has been agreed between the UK’s Chamber of Shipping, Nautilus UK and the National Union of Rail, Maritime and Transport Workers, or the Shipowner’s Code of Conduct. The Code of conduct lists the acts of misconduct which are considered to be either breaches of gross misconduct or breaches of a lesser degree of seriousness and details the various shipboard or onshore disciplinary procedures that are to be followed, including the investigation and possible disciplinary hearing. The Committee notes that paragraph 19 of the Code states that, at the hearing, the seafarer may: (a) be accompanied by a work colleague, or trade union official if available; (b) call relevant witnesses; (c) question witnesses on their evidence; and (d) make any statement or comments on the evidence, in response to the alleged breach, the appropriate penalty if the breach of discipline is substantiated. The Committee takes note of this information, which addresses its previous request.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. It notes that the MLC (2006) 2014 Amendments Financial Security Directive 2017 (Directive 001-2017) gives effect to the requirements of Standard A2.5.2. In this regard, it takes note that the Cayman Islands has implemented the amendments administratively and has published Shipping Notice CISN 01/2017. The Committee also notes the Government’s indication that the legislation implementing the 2014 Amendments to the MLC, 2006, is in the process of finalisation and will be published shortly. The Committee also notes that, in its observations, Nautilus International urged the Government to enact as soon as possible the 2014 amendments into law. The Committee requests the Government to provide information on any developments in this regard.

Regulation 2.7 and Standard A2.7, paragraph 1. Manning Levels. Adequate manning. The Committee notes that, in reply to its previous comments, the Government indicates that all ships of 500 gross tonnage and above subject to the MLC, 2006, are required by law to carry a Minimum Safe Manning Document (hereafter MSMD), as provided for under section 25 of the Merchant Shipping (Certification, Safe Manning, Hours of Work and Watchkeeping) Regulations, 2004. The Government further indicates that all ships under 500 gross tonnage currently registered in the Cayman Islands subject to the MLC, 2006, are yachts which must be certified according to the Large Yacht Code or Small Commercial Vessels (SCV) Code, both of which, have requirements relating to safe manning. It is Cayman Islands policy to provide a MSMD to all yachts engaged in trade of 24 metres and over. Those under 24 metres are required to comply with the safe manning levels given in the SCV Code (Chapter 26 and Annex 3). The Committee understands that the manning levels of Cayman Islands ships under 500 gross tonnage are set pursuant to either the Large Yacht Code or the Small Commercial Vessels (SCV) Code. The Committee also notes the examples of manning documents that were provided by the Government, including for ships under 500 gross tonnage. The Committee takes note of this information, which addresses its previous request.

Noting that the manning requirements in the sample safe manning documents provided by the Government and in the Declaration of Maritime Labour Compliance (DMLC), Parts I and II, do not seem to take into account the requirements within Regulation 3.2 and Standard A3.2, as provided for in Standard A2.7, paragraph 3, the Committee requested the Government to indicate how it ensures the implementation of this provision of the Convention. While noting that the the Large Yacht Code or the Small Commercial Vessels (SCV) Code applicable to ships under 500 gross tonnage do not seem to implement the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering, the Committee however notes the Government’s indication that the requirement for carriage of a ships cook is contained in the Merchant Shipping (Maritime Labour Convention) (Food and Catering) Regulations, 2014 which applies to all ships. The Committee also notes the Government’s indication that the minimum safe manning documents issued or reissued since the entry into force of the MLC, 2006, for the Cayman Islands have all included a ship’s cook where the ship ordinarily operates with ten or more crew. Noting the Government’s indication that the Cayman Islands is currently in the process of updating its legislation relating to safe manning to better reflect the requirements of the MLC, 2006, the Committee requests the Government to provide information on the progress made in this regard.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee noted that section 5 of the Merchant Shipping (Maritime Labour Convention) (Crew Accommodation) Regulations, 2014 provides that the Chief Executive Officer (CEO) of the Maritime Authority may approve requirements which the CEO considers are substantially equivalent to the requirements which are set out in CISN 03/2014 entitled Maritime Labour Convention 2006 – Crew Accommodation on Cayman Islands Flagged Vessels. The Committee further noted that the Government has adopted a substantial equivalence for crew accommodation for cadets permitting the maritime authority to consider case-by-case applications from a shipowner for a dispensation allowing him to accommodate a maximum of two officer trainees in one cabin, subject to certain conditions. The Committee requested the Government to indicate how it ensures that substantial equivalences are not based on a case by case examination made by the administrative authority. The Committee notes the Government’s indication that, the Cayman Islands as part of the REG uses the UK MLC Tripartite Working Group (TWG) to consult shipowner and seafarer representative organizations where required by the MLC, 2006. The Government indicates that the TWG has approved a number of substantial equivalences for the UK which are also used by REG administrations. The agreement on the substantial equivalent measure on cadet accommodation contains specific criteria for its use on a particular vessel, listed in the DMLC, Part I. The agreement also states that each application for an exemption from the Standard will be treated on a case by case based on an assessment by the MCA and after consultation with the social partners. Document MGN472 provides more detail on the procedure for substantial equivalent application for the UK (including the Cayman Islands as part of the UK TWG). The Committee takes notes of this information, which addresses its previous request.

The Committee requested the Government to provide information on the progress made towards amending the relevant legislation concerning crew accommodation for ships under 24 meters in length holding a certificate of compliance with the Code of Practice for the safety of small commercial vessels (sailing, motor, or workboat) operating on domestic voyage, in order to address the requirements of the Convention with respect to substantial equivalence for crew accommodation for small commercial vessels. The Committee notes that Maritime Guidance Note MGN 601(M), entitled Maritime Labour Convention: Crew accommodation for small vessels of less than 200GT that are ordinarily engaged in commercial activities was agreed by the UK TWG and issued by the UK Maritime and Coastguard Agency and lists in Annex A the substantially equivalent standards to MLC Standard A3.1 for such vessels. The Committee takes note of this information, which addresses its previous request.

Finally, the Committee also requested the Government to indicate how it ensures, in accordance with Standard A3.1, paragraph 3, that the inspections required under Regulation 5.1.4 be carried out when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered. The Committee notes that section 4 of the Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations, 2014 requires ships of less than 500 gross tonnage to undergo MLC, 2006, inspections when there are put into service or to continue in service and therefore implements Standard A3.1, paragraph 3(a). It further notes that section 5 of these Regulations implements the requirement set out in Standard A3.1, paragraph 3(a) for ships of 500 gross tonnage or above. The requirement of Standard A3.1, paragraph 3(b) that inspections be carried out when the seafarer accommodation on a ship has been substantially altered is implemented by section 12(5)(c) of the Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations, 2014 which provides that a Maritime Labour Certificate or interim Maritime Labour Certificate ceases to be valid if substantial changes are made to the ship’s accommodation or recreational facilities for seafarers or its food and catering facilities. The Committee however notes that this provision only applies to ships of 500 gross tonnage and above or ships under 500 gross tonnage that voluntarily requested a Maritime Labour Certificate. Noting the above information, the Committee requests the Government to indicate how inspections required under Regulation 5.1.4 are carried out when seafarer accommodation is substantially altered for ships under 500 gross tonnage that are not subject to section 12(5)(c) of the Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations, 2014 and to provide the relevant legislative or regulatory references.

Regulation 3.2 and Standard A3.2, paragraphs 2(c), 3 and 4. Food and catering. Training. The Committee notes that, in reply to its previous comments requesting how it is ensured that ships’ cooks are trained, qualified and found competent for the position, the Government indicates that seafarers who are engaged as ship’s cooks should have evidence of qualification such as: (i) a National Vocational Qualification (NVQ) Level II in catering and hospitality (provided the course contents meet Standard A3.2 and the syllabus includes advanced training on food hygiene and preparation); or (ii) certificates of qualification as a ship’s cook issued by countries that have ratified the MLC, 2006,; or (iii) certificates of qualification as a ship’s cook issued by countries that have ratified the Certification of Ships Cooks Convention, 1946 (No. 69); or (iv) confirmation that they have been serving as a chef in a professional kitchen, commercial yacht or passenger ship and evidence that they have completed training in food and personal hygiene, food storage, stock control, and environmental protection and catering health and safety; or (v) confirmation that they have served as a ship’s cook before the MLC, 2006, had been ratified by the Cayman Islands and evidence that they have completed training in food and personal hygiene, food storage, stock control, and environmental protection and catering health and safety. The Government further states that in addition to the above mentioned requirements in Shipping Notice 07/2014 on the Requirements and guidance for the provision of food and fresh water and training requirements for catering staff on ships, it has recently introduced an optional recognition statement for seafarers working on a Cayman Islands registered large yacht who demonstrate qualifications and experience that is considered equivalent to that required to obtain a ship’s cook certificate (Guidance note CIGN 02/2018). The Committee takes notes of this information. It observes however that while section 8 of the Merchant Shipping (Maritime Labour Convention) (Food and Catering) Regulations 2014 requires all Cayman Islands vessels engaged in trade, with 10 or more seafarers on board to carry a certified ship’s cook, section 6.2 of Shipping notice 07/2014 adds an additional criteria of duration of the voyage (more than 3 days or more than 36 hours from a safe port) to the requirement to carry a fully qualified cook, which is not in conformity with the Convention. Noting that the only exceptions allowed by the Convention to carry a fully qualified cook for ships with a prescribed manning of ten or more are circumstances of exceptional necessity (respectively Standard A3.2, paragraphs 5 and 6), the Committee requests the Government to adopt the necessary measures to ensure full compliance with this provision of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 1(c). Medical care on board and ashore. Right to visit a doctor or dentist in ports of call. Noting that section 8 of the Merchant Shipping (Maritime Labour Convention) (Medical Care) Regulations, 2014, provides that the shipowner and master shall permit a seafarer to seek medical attention at port, where reasonably practicable, but does not refer to dental treatment, the Committee requested the Government to explain how it gives effect to Standard A4.1, paragraph 1(c). The Committee notes the Government’s indication that while section 8 of the Regulations do not explicitly refer to dental care, section 5(1) of the Regulations applies in relation to a seafarer who experiences sickness or injury, section 5(2) provides that expenses for that sickness or injury should be covered, and section 5(3) provides that the expenses incurred in connection with a sickness or injury include – (a) expenses of surgical, medical, dental or optical treatment, including the repair or replacement of any appliance; and (b) expenses for board and lodging. The Committee observes the Government’s indication that, in light of the above, the Government considers that the right to seek medical attention under section 8 applies to the same circumstances that regulation 5 applies and thus access to dental treatment is covered by the term “medical attention”. The Committee takes note of this information, which addresses its previous request.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. In this regard, it takes note that the Cayman Islands has implemented the amendments administratively and has published Shipping Notice CISN 01/2017. The Committee also notes the Government’s indication that the legislation implementing the 2014 Amendments to the MLC, 2006, is in the process of finalisation and will be published shortly. The Committee also notes that, in its observations, Nautilus International urged the Government to enact as soon as possible the 2014 Amendments into Law. The Committee requests the Government to provide information on any developments in this regard.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee requested the Government to indicate how it gives full effect to Standard A4.3, paragraph 3, which requires consultation with the representatives of the shipowners’ and seafarers’ organizations when reviewing the laws and regulations and other measures referred to regarding seafarers’ health and safety and, if necessary, to revise them to take account of changes in technology and research and of the need to improve them continuously. The Committee notes the Government’s indication that section 4(4) of the Merchant Shipping (Maritime Labour Convention) (Health and Safety) Regulations, 2014 requires that the shipowner and master of a Cayman Islands ship shall take into account the guidance contained in the Code of Safe Working Practices for Merchant Seafarers. The Government indicates that this document is developed by the UK in consultation with shipowners’ and seafarers’ organisations and is regularly updated to take into account new technology, changes in working practices, equipment and other factors which may affect a seafarer’s health and safety. The Committee takes note of this information, which addresses it previous request.

Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee requested the Government to provide updated information concerning any consideration it has given to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers working on board ships flying its flag in the absence of adequate coverage in the branches referred to in Standard A4.5, paragraph 1. The Committee notes the Government’s indication that there has been no developments in this respect. The Committee requests the Government to provide, with its next report, up-dated information on any consideration given to this issue.

Regulation 5.1.6 – Marine casualties. The Committee notes the provisions of the Merchant Shipping Law (2016 Revision) concerning marine casualties. Noting the Government’s indication that new regulations have been drafted covering marine casualty investigation and reporting, the Committee would be grateful if the Government would provide a copy of these Regulations once published.

[The Government is asked to reply in full to the present comments in 2022.]

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The Committee notes the Government’s first report. It further notes the observations made by the International Transport Workers’ Federation (ITF), received on 6 August 2015. The Committee requests the Government to provide its comments in this regard.

The Committee notes that no other Conventions on maritime labour had previously been declared applicable in Cayman Islands. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article II of the Convention. Scope of Application. Seafarers. Occasional workers. The Committee notes the Government’s indication that doubt has arisen as to whether occasional workers, such as nannies and security guards, were to be regarded as seafarers, and that this issue has been discussed among the members of the Red Ensign Group of British Registries. The Committee recalls that, for a national determination to be made, in the event of doubt, that certain categories of persons are not to be regarded as seafarers for the purpose of the Convention, the specific procedure provided for in Article II, paragraphs 3 and 7, should be followed. The Committee therefore requests the Government to explain how it will ensure that the procedure of Article II is followed in such cases.

Ships. The Committee notes the Government’s indication that there have been no cases of doubt concerning whether a ship or a particular category of ship is covered by the Convention. The Committee notes, however, that, under Cayman Islands Guidance Note (CIGN) 02/2013 of 1 September 2014, entitled Application of the Maritime Labour Convention to Pleasure Yachts not Engaged in Trade, pleasure yachts “not engaged in trade” are not required to comply with the requirements of the Convention. It recalls that, according to its Article II, paragraph 4, the Convention applies to all ships ordinarily engaged in commercial activities, including vessels chartered or hired. The Committee notes the ITF’s observations on this issue. The Committee requests the Government to indicate how it ensures that all ships ordinarily engaged in commercial activities are covered by the Convention.

Regulation 1.2 and the Code. Medical certificate The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations, 2014, which, under sections 4 to 9, regulate the requirement of seafarers’ medical certificate of fitness. The Committee further notes the Government’s indication that it does not issue its own medical certificates, but that it accepts medical certificates that have been issued by other countries, as set out under Shipping Notice 05/2011 (Rev. 6) of 1 October 2014, entitled Issue of Endorsements Attesting to the Recognition of a Certificate of Competency. The Committee observes that the Government has provided no information concerning any procedures of review for seafarers who have been refused medical certificates. Moreover, it notes that the Government has not specified the period of validity for a certificate of colour vision. The Committee accordingly requests the Government to indicate how it ensures that: (i) seafarers who have been refused a certificate or have had a limitation imposed on their ability to work are given the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee, as required under Standard A1.2, paragraph 5; and (ii) the period of validity for a certificate of colour vision is a maximum of six years, as required under Standard A1.2, paragraph 7(b).

Regulation 2.4 and the Code. Entitlement to leave. The Committee notes the Government’s reference to section 10 of the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement, Shipowner’s Liabilities and Wages) Regulations, 2014, which provides that: (1) the shipowner shall ensure that every seafarer is given an annual leave entitlement of not less than 38 days per annum; (2) annual leave shall be accrued at 3.2 days per month and, where a seafarer does not serve a full year, this shall be calculated on a prorated basis; and (3) the 38-day leave entitlement is inclusive and there is no further entitlement to any customary and public holidays. The Committee further notes the Government’s indication that these 38 days consist of 30 days of leave and eight days of public holidays. The Committee recalls, in this respect, that public and customary holidays, whether or not they fall during the annual leave with pay, should not be included as part of annual leave with pay (Guideline B2.4.1, paragraph 4(a)). The Committee requests the Government to explain how it ensures that seafarers are always provided a minimum of at least 2.5 calendar days of leave per month of employment, excluding customary and public holidays. The Committee also notes the observation submitted by the ITF regarding Regulation 2.4, which draws attention to the discrepancy between the entitlement of public holiday for seafarers, at eight days, and that same entitlement for shore workers, which is 11 days. The Committee requests the Government to provide its comments in this regard.

Regulation 2.5 and the Code. Repatriation. The Committee notes that, under sections 8(2) and 8(4) of the Merchant Shipping (Maritime Labour Convention) (Repatriation) Regulations, 2014, the shipowner may recover damages in respect of repatriation costs, or relief and maintenance costs, where the agreement is terminated because of the “seafarer’s misconduct”. The Committee recalls that, under Standard A2.5, paragraph 3, shipowners must be prohibited from recovering the costs of repatriation except where the seafarer has been found to be in serious default of the seafarer’s employment obligations. The Committee requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be in “serious default of the seafarer’s employment obligations”.

Regulation 2.7 and the Code. Manning levels. The Committee notes that, under section 25 of the Merchant Shipping (Certification, Safe Manning, Hours of Work and Watchkeeping) Regulations, 2004, companies must ensure that, in relation to every ship of 500 gross tonnage or more, a safe manning document is in place and kept on board at all times. The Committee recalls that the requirements for safe manning, as set out under Standard A2.7, apply to all ships under the Convention. The Committee accordingly requests the Government to explain how it ensures that all ships that fly its flag, including those under 500 gross tonnage, have a sufficient number of seafarers employed on board to ensure that ships are operated safely, efficiently and with due regard to security, as required under Regulation 2.7 and the Code.

The Committee further notes the sample safe manning documents annexed to the Government’s report, including those for oil and chemical tankers, a cargo ship, a passenger ship and a bulk carrier. It notes that, according to those documents and the information contained in the Declaration of Maritime Labour Compliance (DMLC), Parts I and II, the manning requirements do not seem to take into account the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering, as provided for in Standard A2.7, paragraph 3. The Committee requests the Government to indicate how it ensures the implementation of this provision of the Convention.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes the Government’s references to the Merchant Shipping (Maritime Labour Convention) (Crew Accommodation) Regulations, 2014, as well as to Shipping Notice CISN 03/2014 of 24 July 2014 entitled Maritime Labour Convention 2006 – Crew Accommodation on Cayman Islands Flagged Vessels, both of which implement most of the provisions of Regulation 3.l and the Code. The Committee further notes, however, that under section 5 of the Regulations, the Chief Executive Officer (CEO) of the Maritime Authority may approve requirements which the CEO considers are substantially equivalent to the requirements which are set out in CISN 03/2014. Moreover, the Committee notes the Government’s indication that, with respect to substantial equivalence for crew accommodation for cadets, the maritime authority would consider case-by-case applications from a shipowner for a dispensation allowing him to accommodate a maximum of two officer trainees in one cabin, subject to certain conditions. The Committee recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with Article VI, paragraphs 3 and 4 of the Convention that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the Convention. The Committee therefore requests the Government to indicate how it ensures that substantial equivalences are not based on a case by case examination made by the administrative authority. The Committee also notes the Government’s indication that, with respect to substantial equivalence for crew accommodation for small commercial vessels, the relevant legislation concerning crew accommodation for ships under 24 metres in length holding a certificate of compliance with the Code of Practice for the safety of small commercial vessels (sailing, motor, or workboat) operating on domestic voyages was to be amended to address the requirements of the Convention. The Committee requests the Government to provide information on any development in this respect.

Finally, noting the absence of information on this matter, the Committee requests the Government to indicate how it ensures, in accordance with Standard A3.1, paragraph 3, that the inspections required under Regulation 5.1.4 shall be carried out when: (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered.

Regulation 3.2 and the Code. Food and catering. The Committee notes the Government’s reference to Shipping Notice CISN 07/2014 of 24 July 2014, entitled Maritime Labour Convention 2006 – Requirements and Guidance for the Provision of Food, Fresh Water and training Requirements for Staff on Ships, which provides guidance concerning the qualification of ships’ cooks. It further notes the comments of the ITF, which state that the training requirements under CISN 07/2014 are insufficient as they permit ship’s cooks to be employed based on previous working experience without having passed an “approved examination” and a significant portion of ship’s cooks serving on commercial yachts do not meet required standards. The Committee recalls that the Convention does not require that ships’ cooks be certified. However, ships’ cooks must not be less than 18 years of age and, in accordance with Regulation 3.2, paragraph 3 and Standard A3.2, paragraph 3, must be trained, qualified and found competent for the position in accordance with requirements set out in the laws and regulations of the country concerned. The Committee further recalls that, in the case of ships’ cooks who have successfully served at sea for some time, the ILO’s Guidelines on the training of ships’ cooks advise the competent authority to establish alternative methods for certification which meet the requirements of the Convention and the practical needs of the ship’s cook concerned. The Committee requests the Government to indicate how it ensures that ships’ cooks are trained, qualified and found competent for the position, in accordance with Regulation 3.2, paragraph 3 and Standard A3.2, paragraph 3.

Regulation 4.1 and the Code. Health protection, medical care, welfare and social security protection. The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Medical Care) Regulations, 2014, which implement most of the requirements of the Convention. It notes, however, that, while under section 8 of these Regulations, the shipowner and master shall permit a seafarer to seek medical attention at port, where reasonably practicable, these provisions do not include dental treatment. The Committee recalls, in this respect, that the medical care on board and ashore, as required under Regulation 4.1 and Standard A4.1, paragraph 1(c), include essential dental care. The Committee accordingly requests the Government to explain how it ensures that seafarers have the right to visit a qualified dentist without delay at ports of call, as required under the Convention.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes the Government’s reference to the Merchant Shipping (Maritime Labour Convention) (Health and Safety) Regulations, 2014, which require the shipowner to ensure that a seafarer is provided with occupational health protection and that reasonable precautions are taken to prevent occupational accidents, injuries and disease on board ships. It notes that, under section 4, paragraph 3(b)(v) of these Regulations, the shipowner must adopt procedures to take account of new technology, changes in working practices, equipment and other factors which may affect a seafarer’s health and safety. The Committee recalls that Standard A4.3, paragraph 3, of the Convention requires consultation with the representatives of the shipowners’ and seafarers’ organizations in this process. The Committee accordingly requests the Government to indicate how it ensures that full effect is given to this provision of the Convention.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, the Government declared that the branches for which it provides protection in accordance with paragraphs 1, 2 and 10 of Standard A4.5 are: medical care; old-age benefit; family benefit; and survivors’ benefit. It notes the Government’s statement that, although there are no active seafarers resident in its territory, there are a number of retired seafarers, who are entitled to free medical care through the government-owned Cayman Islands National Insurance Company (CINICO). The Committee further notes the Government’s indication that it has not adopted any measures for providing benefits to non-resident seafarers working on ships flying its flag who do not have adequate social security coverage. The Committee requests the Government to provide updated information concerning any consideration it has given to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers working on board ships flying its flag in the absence of adequate coverage in the branches referred to in Standard A4.5, paragraph 1.

[The Government is asked to reply in full to the present comments in 2018.]