Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) - United States of America (Ratification: 1988)

The Committee notes the information provided by the Government in its report and requests it to furnish additional particulars on the following points.

Article 2(a) of the Convention (Conventions referred
to in the Appendix to Convention No. 147, but not
ratified by the United States)

-  Prevention of Accidents (Seafarers) Convention, 1970 (No. 134). The Committee notes the information provided by the Government in reply to the issues raised in its previous direct request. It notes that, with regard to the management of accident risks, the Government has adhered to the ISM Code, which is implemented by Title 46 of the United States Code and Title 33 of the Code of Federal Regulations. The national legislation therefore provides for the designation of a person ashore with direct access to management to whom accidents and hazardous situations are to be reported, as well as requiring internal and external audits. The Government is requested to indicate whether the safety management system which has to be implemented by companies provides for the appointment, from amongst the crew of the ship, of a suitable person or suitable persons or of a suitable committee responsible, under the master, for accident prevention. If this is not the case, please indicate the measures which have been taken or are envisaged in order to bring the national legislation into substantial equivalence with this provision of the Convention. The Committee also requests the Government to describe the manner in which internal and external audits are organized and ensured.

-  Medical Examination (Seafarers) Convention, 1946 (No. 73). Article 5, paragraph 1. The Government indicates in its report that, if it is determined that more frequent physical examinations are necessary to evaluate seafarers’ health, a proposal will be submitted to amend the regulations governing the issuance of medical certificates. The Committee requests the Government to indicate the measures taken and, where appropriate, the consultations held since its last report with a view to amending the legislation on this point, with a view to reducing the existing disparities which are deemed by the Committee to be too great to be considered as substantial equivalence for the purposes of Convention No. 147. The Committee hopes that the Government will be in a position to submit this matter for further examination and to indicate the progress achieved in its next report in bringing its legislation into substantial equivalence with the provisions of the Convention.

-  Accommodation of Crews Convention (Revised), 1949 (No. 92). The Committee notes the fact that national laws and regulations are brought to the notice of the persons concerned (Article 3, paragraph 2(a)) by means of the obligation for them to be appended to the articles of agreement. The Government is requested to indicate whether the national laws or regulations on crew accommodation are included in the list of laws and regulations which must be appended to the articles of agreement in accordance with section 10302(b)(5) of Title 46 of the United States Code.

The Committee notes the Government’s reply to the effect that the enforcement of crew accommodation requirements is ensured by periodic inspections of vessels by the Coast Guard from the time of construction, during which the Coast Guard ensures that minimum crew accommodation requirements are met, as well as through periodic inspections when vessels are in use. It requests the Government to provide further information on the application in practice of the obligations relating to crew accommodation, including a description of the procedures for the investigation of complaints.

The Committee notes that, under the terms of Chapter 111, section 11101, of Title 46 of the United States Code, fines of between US$50 and $500 are envisaged for any owner, charterer, operator, agent or master not complying with the requirements respecting the accommodation of crews. With reference to Article 3, paragraph 2(c), of the Convention, the Committee recalls that the penalties prescribed for any violation of the provisions respecting the accommodation of crews must be adequate and it requests the Government to keep it informed of any measures that it intends to take, in consultation with the organizations of shipowners and seafarers, to achieve greater conformity and therefore substantial equivalence between the national legislation and Convention No. 92, in accordance with the requirements of Article 2(a) of Convention No. 147.

-  Seamen’s Articles of Agreement Convention, 1926 (No. 22). In its previous comments, the Committee requested the Government, among other matters, to indicate the measures taken to ensure that seafarers understand the clauses of their agreement, in accordance with Article 3, paragraph 4, of the Convention. The Government states in its report that the fact of signing the agreement indicates an understanding of it. The Committee requests the Government to indicate whether measures other than the written form of the agreement are taken to ensure that seafarers understand the meaning of the clauses of the agreement, such as the provision of legal assistance or the establishment of a period of reflection for the acceptance of the agreement.

In its previous direct request, the Committee noted the Government’s intention to supply as soon as possible information on the points raised under this Convention. However, it notes that the Government’s report does not provide all the information requested and is therefore bound to reiterate the questions raised, which read as follows: please indicate (i) whether agreements have to include reference to the possible grounds for rescission and annual leave (Article 6, paragraph 3(10)(c) and (11)); (ii) the provisions relating to termination (Articles 9 and 10) and immediate discharge (Articles 12 and 13).

Article 14. The Committee notes that seafarers are issued with a certificate of discharge, under the terms of section 10311 of Title 46 of the United States Code, and as required by Article 14, paragraph 1, of the Convention. It would be grateful if the Government would indicate whether the seafarer at all times has the right to obtain from the master a separate certificate as to the quality of his work or, failing that, a certificate indicating whether he has fully discharged his obligations under the agreement (Article 14, paragraph 2).

-  Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee notes the judicial decisions provided by the Government and requests it to continue providing the Office with any relevant judicial decisions relating to the field covered by these Conventions.

Article 3 of Convention No. 87. While noting the indications contained in the Government’s report that, firstly, all private sector workers enjoy the full range of trade union rights and, secondly, the maritime industry in the United States is almost completely unionized, the Committee nevertheless notes that the report does not indicate the measures which have been taken or are envisaged to render the Labour Management Report and Disclosure Act of 1959 (section 504) substantially equivalent to Convention No. 87. In these circumstances, it is bound to reiterate its previous comments, in which it noted that this provision excludes any person who is or has been a member of the Communist Party from holding office in a labour organization and from serving as a consultant or adviser. It once again refers the Government to the interpretation contained in its General Survey of 1994 on freedom of association and collective bargaining (paragraph 119), where it considered that "legislation which prohibits the exercise of trade union functions solely on the grounds of political belief or affiliation is not compatible with the right of organizations to elect their representatives in full freedom". It once again recalls that, for the purposes of Convention No. 147, substantial equivalence with Convention No. 87 involves at the minimum the observance and implementation in full of the right (among other guarantees) to elect representatives in full freedom, in respect of seafarers on United States registered ships (see the 1990 General Survey, paragraph 188). The Committee therefore firmly hopes that the next report will contain information on the measures which have been taken or are envisaged in this respect.

Article 2(b). The Committee notes the establishment within the Occupational Safety and Health Administration of the Maritime Advisory Committee for Occupational Safety. The Government is requested to provide information on the role of the above Committee as it relates to this provision of the Convention.

Article 2(d)(i) and (ii). The Committee notes that the Coast Guard has ceased performing the duties of the Shipping Commissioner, and that these duties are now performed by the master of the vessel, using guidance provided by the Coast Guard. However, the Committee notes the absence of the general supervisory system that the Government had undertaken to establish under this Article of the Convention. It therefore once again refers the Government to the explanations contained in Chapter IV of the General Survey (especially paragraphs 214 and 218) and considers that the supervisory role in engagement procedures and the investigation of complaints relating to engagement as required by the Convention must be discharged by a disinterested party in the context of adequate procedures established after consultation with the organizations of shipowners and seafarers, where appropriate. The Committee recalls that, by ratifying the Convention, each Member undertakes to ensure that such procedures exist and are subject to the overall supervision of the competent authority.

The Committee also notes that the parties may, if disputes are not settled amicably in accordance with collective agreements, refer them to the courts for resolution. It further notes the possibility of filing complaints with the Coast Guard, in which case the latter is competent to investigate to determine whether any violations of laws or regulations have occurred. The Government is requested to provide detailed information on the engagement procedures for seafarers on vessels registered on its territory and for the investigation of complaints lodged in this respect, and particularly to indicate: (i) the competence of the Coast Guard with regard to the engagement of seafarers and the filing of complaints; (ii) the competent authority entrusted with the overall supervision of procedures for the engagement of seafarers on vessels registered on its territory and the investigation of complaints arising in this connection; and (iii) whether tripartite consultations were held concerning the elaboration of procedures for the engagement of seafarers and the investigation of complaints arising in this connection.

The Government is also requested to indicate whether the rules respecting the investigation of complaints arising in connection with engagement are also applicable to complaints lodged by seafarers of its own nationality engaged on vessels registered in a foreign country and mooring in American ports, and whether the same procedures are applicable to seafarers of foreign nationality engaged on vessels registered in a foreign country (Article 2(d)(ii)). In this respect, the Committee requests the Government to indicate the measures adopted to ensure the prompt transmission of complaints arising in connection with the engagement of foreign seafarers on ships registered in a foreign country to the competent authority of the country, in accordance with this provision of the Convention.

Article 2(f). The Committee notes the information provided by the Government in its report concerning the frequency of inspections of vessels registered in the United States and carried out by the Coast Guard. It would be grateful if the Government would provide information in future reports, as it did in the report received in 1994, on the size of the inspection staff, the number and results of inspections and investigations of complaints, and the penalties imposed.

Article 4. The Committee notes the updating of Commandant Instruction No. 16711.12A on 12 July 1996 with the objective of providing clear guidance for the application of Convention No. 147. It notes with interest that, where the vessel that is inspected is registered in a State that has ratified the Convention, the nearest maritime, consular or diplomatic representative of the vessel’s flag State shall be notified of the intervention when the competent authorities intervene in situations which are clearly hazardous to safety and health under the terms of section 1223(b) of the Ports and Waterways Safety Act. In the case of vessels registered in a State that has not ratified Convention No. 147, the Committee notes that the captain of the port may take control action to rectify any conditions which are clearly hazardous to safety and health and which can reasonably be construed as imperilling the safety of the port. The Committee notes that, where such measures are taken, the Instruction does not provide, as required by the Convention (Article 4, paragraph 2), that the nearest maritime, consular or diplomatic representative of the flag State shall be notified forthwith. It requests the Government to indicate the measures that it intends to take in order to conform fully to the Convention on this point.

Part V of the report form. The Government is requested to indicate the representative organizations of employers and workers to which copies of the last report were communicated in accordance with article 23, paragraph 2, of the Constitution of the ILO.