Maritime Labour Convention, 2006 (MLC, 2006) - India (Ratification: 2015)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the Government’s 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, 2016 and 2018 entered into force for India on 18 January 2017, 8 January 2019, and 26 December 2020 respectively.

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 India 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.

Article I of the Convention. General questions on application. Implementing measures. The Committee previously requested the Government to provide more detailed information on the scope of application of three Industry Agreements in force for the period 2015–19, applicable respectively to Off Shore, Home Trade and Foreign going Ratings and Petty Officers, as they refer to “seamen engaged on Offshore Indian Articles of Agreement” or to “seamen engaged on Home Trade Indian Articles of Agreement”. The Committee notes the Government’s indication that (1) although itis not a party to these agreements, they are recognized by the Government and referred to in Seamen's Employment Agreement / Articles of Agreement; (2) for the effective implementation of the MLC, 2006, the General Directorate of Shipping, Ministry of Ports, Shipping and Waterways has promulgated guidelines enforcing the essential components to be included in each of the CBAs via the Merchant Shipping Notice No. 7 of 2020; (3) the above-mentioned Merchant Shipping Notice provides that the parties of the said CBAs shall furnish a copy of the CBA to the Administration for examination and concurrence thereon. The Committee understands thatAnnexure 1 of Merchant Shipping Notice No. 7 of 2020 provides that more detailed terms and conditions of employment of seafarers engaged on Indian flag ships can be agreed trough CBAs. While the scope of application of these three CBAs is limited to ratings and petty officers, these CBAs are being applied within the framework of the Merchant Shipping (Maritime Labour) Rules 2016 implementing the MLC, 2006 and provide additional and more detailed terms and conditions of employment for those two categories of workers than the broader terms prescribed under the Merchant Shipping (Maritime Labour) Rules 2016 applicable to all seafarers within the meaning of the Convention. The Committee further notes that the new CBAs which have been entered into by the said Parties have been submitted to the Administration and are being examined for assessing their conformity with the MLC, 2006. The Committee takes note of this information and requests the Government to provide a copy of the new CBAs once entered into force.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that, in response to its previous request concerning trainees and cadets, the Government indicates that the Administration, via Merchant Shipping Notice No. 5 of 2017 dated 2 June 2017, has granted relaxation of the Rule 12(3)(b) of the Merchant Shipping (Maritime Labour) Rules 2016 regarding the maximum duration of service on board after which seafarers shall be entitled to repatriation, as it allows a trainee to continue on board a vessel for a longer period to complete sea time required for appearing in the Examinations for Certificate of Competency. The Committee notes the Government’s indication that the said Notice does not, however, indicate any specific period provided for trainees and cadets to continue on board beyond 12 months. The Government also indicates that Merchant Shipping Notice No. 5 of 2017 has also granted relaxation to cadets/trainees regarding social security measures as provided for in Rule 22 of the said Rules with respect to contribution to Seafarers Welfare Fund Society without specifying the equivalent security provided for cadets and trainees. Noting the Government’s indication that Merchant Shipping Notice No. 5 of 2017 is being reviewed, the Committee requests the Government to indicate the measures taken to ensure that the maximum period of service on board for cadets and trainees is in all cases less than 12 months as required by Standard A2.5.1, paragraph 2(b), and to provide a copy of the amended notice once reviewed.

Article III. Fundamental rights and principles. In its previous comment, noting that India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee requested the Government to indicate how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining, in particular as regards seafarers’ rights. The Committee notes the Government’s indication that section 97A of Merchant Shipping Act, 1958, as amended provides for freedom of association to seafarers and provides that “[T]here shall be no discrimination between seamen, (a) on the ground of their membership or lack of membership in any particular union purporting to represent the interest of seamen and membership in such union shall not be pre-requisite condition … for their recruitment and engagement on board any ship”. The Committee further notes the Government’s indication that the Directorate General of Shipping, Ministry of Ports, Shipping and Waterways vide Merchant Shipping Notice No. 7 of 2020 (Annexure-l) has issued guidelines on terms and conditions for employment of seafarers engaged on Indian ships which can be negotiated and agreed through collective bargaining agreements. The Committee takes note of this information, which addresses its previous request.

Regulation 1.4 and Standard A1.4, paragraph 5(c)(vi). Recruitment and placement. System of protection. Noting that the system of protection, by way of a bank guarantee provided for under the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016, only seems to apply to foreign flag ships, the Committee requestedthe Government to clarify whether the system of protection established to give effect to Standard A1.4, paragraph 5(c)(vi), of the Convention also applies to seafarers who are placed on Indian flag ships and to indicate the relevant national provisions. The Committee notes the Government’s indication that the system of protection by way of Rule 5(g) of the Merchant Shipping (Recruitment & Placement of Seafarers) Rules, 2016 is applicable to foreign flag ships only, and that for Indian Flag ships there are Document of Compliance (DOC). The Committee, however, observes that the Government does not provide information on how DOC implement the requirements of Standard A1.4, paragraph 5(c)(vi) ofthe Convention. The Committee further notes that the Government has not provided information as to the form of system of protection put in place and the scope of protection. The Committee further notes the Government’s indication that Indian shipowners are required to provide a financial security as laid down in the Rule 12 of Merchant Shipping (Maritime Labour) Rules 2016 to ensure that seafarers are duly repatriated and to assist seafarers in the case of abandonment. While noting this information, the Committee recalls that under Standard A1.4, paragraph 5(c)(vi), seafarer recruitment and placement services should establish, in addition to any insurances provided by the shipowner, a “system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. The Committee requests the Government to indicate the measures adopted to give full effect to Standard 1.4, paragraph 5(c)(vi) of the Convention for Indian flag ships.

Regulation 1.4, paragraph 3, and Standard A1.4, paragraph 9. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee previously requested the Government to explain how it gives effect to this requirement of the Convention.The Committee notes the Government’s indication thatshipowners of ships flying the Indian flag are required to engage and carry on board ship seafarers who are in possession of Continuous Discharge Certificate (CDC) / Seafarers Identity Document (SID) as per provisions under sections 99 and 99 A of the Merchant Shipping Act, 1958. The Merchant Shipping (CDC) Rules, 2017 and the Merchant Shipping (SID) Rules, 2016 prescribe that only Indian nationals are eligible to be issued those documents, therefore shipowners of ships flying the Indian flag engage Indian seafarers either directly or through registered Recruitment & Placement Services based in India, which are subject to the national provisions implementing the MLC, 2006 requirements. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. While noting that rule 8 of the Merchant Shipping (Maritime Labour Rules), 2016 is in conformity with the provisions of Standard A2.1, paragraph 1(a), the Committee notes that the example of the standard form of the Articles of agreement submitted by the Government provides for signatures by the seafarers and the “employer/employer’s agent”, also by the master and the shipping master, but does not provide concrete information on the identity of the shipowner and on whether the employer or employer’s agent acts as a representative of the shipowner. The Committee underlines the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II. The Committee requests the Government to indicate how it is ensured that the SEA is signed by the shipowner or shipowner’s representative as required by Standard A2.1, paragraph 1(a). The Committee further requests the Government to clarify whether, in this context, the employer/employer’s agent acts as a representative of the shipowner and to indicate the relevant provisions.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. Noting that Rule 8(1)(e) of the Merchant Shipping (Maritime Labour) Rules, 2016, does not require, as provided for by Standard A2.1, paragraph 3, that the record of employment shall not contain any statement as to the quality of the seafarers’ work or as to their wages, the Committee requested the Government to indicate how it gives full effect to this requirement.The Committee notes the Government’s indication that the record of employment of seafarers does not contain any statement as to the seafarers' work or as to their wages and that it has provided a copy of the Continuous Discharge Certificate in which seafarers details of employment are recorded with no such statement. The Committee takes note of this information, which addresses its previous request.

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee notes that rule 8 of the Merchant Shipping (Maritime Labour Rules), 2016 reproduces the matters to be included in an SEA, as required under Standard A2.1, paragraph 4. The Committee observes that while several matters to be included in SEAs, according to Standard A2.1, paragraph 4, are not reflected in the standard form of the Articles of Agreement submitted by the Government, these matters are however covered by the applicable CBA to which the Articles of agreement refer. The Committee however observes that it is not clear whether all seafarers engaged on Indian flag ships are covered by CBAs, and if this is not the case, whether the Articles of Agreement incorporate all the matters to be included in an SEA, as required under Standard A2.1, paragraph 4. The Committee requests the Government to confirm how it ensures that all seafarers on Indian flag ships have SEAs that include all the matters listed in Standard A2.1, paragraph 4.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. In its previous comment, while noting that Rule 8(7) of the Merchant Shipping (Maritime Labour Rules), 2016, provides that a period of notice shorter than the minimum period may be given in circumstances which are recognized “under the applicable collective bargaining agreements” as justifying termination of the employment agreement at shorter notice or without notice, the Committee noted that the Industry Agreements provided by the Government do not contain provisions on the compassionate or other urgent reasons which justify a shorter notice period. The Committee notes the Government’s indication that the Directorate General of Shipping has issued Merchant Shipping Notice No. 7 of 2020 specifying terms and conditions for employment of seafarers and that clause 7 specifically refers to minimum notice period for premature termination of agreement as per Rule 8(5)(g), Rule 8(6) and Rule 8(7) of the Merchant Shipping (Maritime Labour) Rules, 2016, which should be specified in CBA entered between shipowners’ and seafarers’ organizations or Articles of Agreement/SEA entered between the shipowner and the seafarer. Noting theGovernment’s indication that this particular matter is being looked into in new CBAs submitted to the Administration which are currently under examination, the Committee requests that it submits a copy of the agreements once entered into force.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, 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 are the terms piracy and 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 2.2 and Standard A2.2, paragraph 6. Wages. The Committee requested the Government to provide information on the development of the situation following the observations submitted by the Forward Seaman’s Union of India (FSU), alleging that shipowners of Indian-registered ships have entered into an “urgent wage agreement” with one trade union on 2 April 2016, disregarding the Merchant Shipping (Maritime Labour) Rules, 2016, and the amount of the minimum wage set by the Joint Maritime Commission, and requested it to also indicate whether any mechanisms were put in place to deal with the minimum wage issues. The Committee notes the Government’s indication that the Ministry of Shipping has issued direction to the Chief Labour Commissioner for carrying out verification to identify majority unions in order to enable the Indian National Shipowners Association (INSA) to perform their task under the National Maritime Board (NMB) CBA and that the final outcome has yet to be received. The Committee further notes the Government’s indication that the Merchant Shipping Notice No. 7 of 2020 specifying terms and conditions for employment of seafarers engaged on Indian flag ships clarifies the issue of wages. Noting thatthe amount of wages has been agreed in the framework of the CBAs, the Committee requests the Government to clarify if all seafarers engaged on Indian flag ships are covered by the provisions of the CBAs and if it is not the case, to indicate how due consideration is given to Guideline B2.2.4 and to the minimum wage established by the Joint Maritime Commission.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of agreements to forgo annual leave. The Committee previously requested the Government to provide information on the authorized exceptions that have been granted by the Director-General of Shipping underStandard A2.4, and the ground for such authorizations.The Committee notes the Government’s indication that a Merchant Shipping Notice providing detailed information on the authorized exceptions granted under Rule 11(2) of the Merchant Shipping (Maritime Labour) Rules, 2016 is being issued. The Committee requests the Government to provide updated information on the development of this Merchant Shipping Notice and to provide a copy once issued.

Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Repatriation. Maximum period of service on board. The Committee notes that Rule 12(3) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall ensure that there are appropriate provisions in collective bargaining agreements, specifying the maximum duration of service periods on board following which a seafarer is entitled to repatriation – which shall be less than 12 months. The Committee however observes that the CBAs submitted by the Government refer to “prolong service benefits” for sea service beyond 11 months and above. The Committee recalls that, from the combined reading of Standard A2.4, paragraphs 2 and 3, on annual leave and Standard A2.5.1, paragraph 2(b), the maximum continuous period of shipboard service without leave is in principle 11 months. The Committee accordingly requests the Government to take the necessary measures to give full effect to these requirements of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. TheCommittee requested the Government to provide a copy of all applicable collective agreements indicating the relevant provisions which are giving effect to Standard A2.5.1, paragraph 2. The Committee notes that the CBAs submitted by the Government contain provisions on entitlements to be granted for seafarers when repatriated, without however clear indication as to whether such entitlements are granted in the case that the SEA is terminated by the seafarer for justified reasons, as provided for under Standard A2.5.1, paragraph 1(b)(ii).Noting that Rule 12 of the Merchant Shipping (Maritime Labour) Rules 2016 specifically provides that the shipowner shall ensure that seafarers on their ships are repatriated without any cost to them when the seafarers’ employment agreement is terminated by the seafarer for justified reasons, as per collective bargaining agreement/seafarer employment agreement, the Committee requests the Government to specify the provisions of the CBA giving effect to this requirement of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs. Noting that the national legislation refers to the situation of “default” and not “serious default” as required by the Convention, the Committee requested the Government to indicate the measures taken to give full effect to Standard A2.5.1, paragraph 3. It further requested the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers employment obligations”.Noting the Government’s indication that a Merchant Shipping Notice to this effect is being issued, the Committee requests the Government to indicate the measures taken to fully comply with Standard A2.5.1, paragraph 3.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes with interest that the provisions of Rule 12 of the Merchant Shipping (Maritime Labour) Rules, 2016 gives effect to the requirements of Standard A2.5.2 and that the Government has provided a copy of a certificate of insurance or other financial security in respect of seafarer financial repatriation costs and liabilities, as required under Regulation 2.5 and Standard A2.5.2. The Committee takes note of this information, which addresses its previous request.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. The Committee requested the Government to provide any stipulation of the collective bargaining agreements in force that specify the amount of the indemnity against unemployment resulting from a ship’s loss or foundering. The Committee notes the Government’s indication that there is no such stipulation in the current CBAs and that this provision needs to be incorporated. The Committee requests the Government toindicate the measures taken to fully comply with Standard A2.6, paragraph 1.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee previously requested the Government to indicate if every ship, within the meaning of the MLC, 2006, shall be inspected as provided byStandard A3.1, paragraph 3. The Committee notes the Government’s indication that the Directorate General of Shipping, through Merchant Shipping Notice No. 16 of 2016 applicable to Indian flag ships of more than 500 GT and Merchant Shipping Notice No. 9 of 2017 applicable to Indian ships of GRT below 500 MT, Indian River Sea vessels and Indian coastal vessels, prescribes the inspection and certification process of Indian flag ships, in line with the MLC, 2006. Accordingly, every ship within the meaning of the MLC, 2006 is inspected as provided by Standard A3.1, paragraph 3. The Committee takes note of this information, which addresses its previous request.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. Exemptions. The Committee notes that, in response to its previous request, the Government states that the Merchant Shipping Seafarer Accommodation Rules, 2016 incorporates exemption/equivalent provisions expressly permitted by the Convention and the power to grant any exemption or accepting equivalent arrangement as permitted by the Rules lies with the Directorate only. The Government indicates that the Directorate has not received any request for "equivalent arrangement". Recalling that under the MLC, 2006, exemptions are possible only where they are expressly permitted by the Convention, the Committee requests the Government to provide information on any exemption granted in the future under the Merchant Shipping Seafarer Accommodation Rules, 2016.

Regulation 4.1 and the Code. Medical care ashore. The Committee requested the Government to indicate how effect is given to Regulation 4.1, paragraph 3. The Committee observes that the obligations, provided for under rule 18 of the Merchant Shipping (Maritime Labour) Rules, 2016 and the DMLC, Part I, slide 12 to which the Government refers, lie mostly with the shipowner and that the Government has not provided information on the measures adopted to give effect to Regulation 4.1, paragraph 3, regarding the obligation to ensure that seafarers on board foreign ships in Indian territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. The Committee, once again, requests the Government to indicate the measures adopted to comply with this requirement of the Convention.

Regulation 4.1 and Standard A4.1, paragraph 2. Medical care on board and ashore. Standard medical report form. The Committee previously requested the Government to indicate whether the competent authority has adopted a standard medical report form for use by the ships’ masters and relevant onshore and on-board medical personnel, as required by Standard A4.1, paragraph 2. The Committee notes that the Government has provided a copy of the standard medical form used by masters on ships, which is enclosed in Annexure 17. 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, the Committee notes with interest that the Government refers to Rule 19 of the Merchant Shipping (Maritime Labour) Rules, 2016 which complies with the new provisions of the Convention. The Committee takes note of this information.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee requested the Government to indicate the laws, regulations and guidelines adopted to give effect to Regulation 4.3 andStandard A4.3. The Committee notes that the Government refers to the DMLC, Part I which lays the responsibility of the shipowner with respect to health and safety protection and prevention of accident on board ships, as well as to the checklist for inspection on requirements with respect to Standard A4.3. While observing that the provisions of Regulation 4.3 and Standard A4.3 may be implemented in practice, the Committee however notes the absence of information onlaws, regulations and guidelines adopted to give effect to Regulation 4.3 andStandard A4.3. The Committee therefore requests the Government to provide detailed information on the following: (i) development of national guidelines for the management of occupational safety and health on board ships, taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations (Regulation 4.3, paragraph 2); (ii) adoption of laws and other measures for effective implementation and promotion of occupational safety and health policies and programmes on ships, including training and instruction of seafarers (Standard A4.3, paragraph 1(a)); (iii) laws and regulations and other measures specific to maritime employment addressing all matters in Standard A4.3, paragraphs 1 and 2, and in particular the obligation to establish ship’s safety committee on board a ship with five or more seafarers (Standard A4.3, paragraph 2(d)); and (iv) manner in which occupational accidents and diseases relating to seafarers covered by the Convention are reported and investigated, and statistics in that regard are published (Standard A4.3, paragraph 5).

Regulation 4.5 and the Code. Social security. Recalling that, at the time of ratification, the Government has specified maternity benefit; invalidity benefit and survivors’ benefit as the branches of social security for which protection is provided, and noting the Government’s indication that discussions are taking place on the possibility to extend the social security protection for seafarers to other social security branches (old-age benefit and family benefit), not specified at the time of ratification, the Committee requested the Government to provide information on any developments on this issue in accordance with Regulation 4.5, paragraph 2, and Standard A4.5, paragraph 11. The Committee notes the Government’s indication that Indian seafarers are now eligible to old-age benefit and family benefit welfare schemes provided by the Seafarers Welfare Fund Society and notes the conditions to access these schemes. The Committee takes note of this information, which addresses its previous request.

Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory.Noting that social security coverage is not available to all seafarers ordinarily resident in India, but only to Indian seafarers, holding a CDC Book, and who are recruited/engaged by Indian shipowners or through registered Recruitment and Placement Services, for Indian or foreign flag ships, the Committee requested the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in India, regardless of their nationality or of the flag of the ships they work on, are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in India, in conformity with Regulation 4.5.The Committee notes the Government’s indication that only Indian national seafarers are working on Indian flag ships. The Committee observes that social security coverage is based on the criterion of nationality and not residency and that seafarers have a specific regime that is different than shoreworkers. It is not clear if seafarers are granted the same social security coverage as resident shoreworkers. The Committee further observes that the Government has not specified the conditions of coverage for non-national seafarers ordinarily resident in India who work on a ship flying a foreign flag. Recalling that ratifying Members shall take steps to provide social security protection to all seafarers ordinarily resident in its territoryirrespective of their nationality or the flag of the ship on which they are employed, the Committee requests the Government: (i) to indicate how it complies with the principle of equality of treatment between seafarers and shoreworkers as regards social security protection; and (ii) to indicate the number of foreign seafarers resident in India and to provide information on how it ensures that seafarers who are not nationals but reside in India are entitled to social security protection, as provided for in Standard A4.5, paragraph 3.

Regulation 5.1.1 and Standard A5.1.1, paragraph 2. Flag State responsibilities. General principles. Copy of the MLC, 2006 on board. The Committee previously requested the Government to indicate how it ensures compliance with the requirement of Standard A5.1.1, paragraph 2.The Committeenotes the Government’s indication that Maritime Shipping Notice No. 9 of 2017 is being amended in this regard. The Committee welcomes this information and requests the Government to provide a copy of the amended text once adopted.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee previously requested the Government to specify how it gives effect to the different requirements of Standard A5.1.2. The Committee notes the list of ROs that have been formally authorized to carry MLC, 2006 inspections under Merchant Shipping Notice No. 16 of 2016. Noting however that the Government does not reply to its previous request, the Committee once again requests it to indicate the measures adopted to give effect to Standard A5.1.2, paragraphs 1–3.

Regulation 5.1.3 and Standard A5.1.3, paragraph 12. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. The Committee previously requested the Government to provide information on how it ensures compliance with Standard A5.1.3, paragraph 12. The Committee notes the Government’s indication that Merchant Shipping Notice No. 16 of 2016 has laid down an elaborate and comprehensive process of inspection and certification of Indian flag ships, in line with the MLC, 2006. The Committee notes that the Government refers to the checklist for inspection in annexure III of Merchant Shipping Notice No. 16 of 2016. The Committee however observes that the checklist refers to inspectors having to verify whether a copy of the MLC, 2006 is on board and not the maritime labour certificate, nor the DMLC, and that there is no indication as to whether these documents are posted in a conspicuous place on board. Noting that the Government has not provided the relevant information in reply to its request, the Committee once again requests the Government to indicate how effect is given to Standard A5.1.3, paragraph 12.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the maritime labour certificate and the declaration of maritime labour compliance. The Committee previously requested the Government to indicate how it gives effect to the requirements of Standard A5.1.3, paragraphs 14–17 establishing the circumstances in which a maritime labour certificate ceases to be valid and the circumstances in which a maritime labour certificate must be withdrawn. Noting that the Government has indicated that a Merchant Shipping Notice to this effect is being issued, the Committee requeststhe Government to indicate the progress made in this regard and to provide a copy of the Merchant Shipping Notice once issued.

Regulation 5.1.5 and Standard A5.1.5, paragraph 3. Flag State responsibilities. On-board complaint procedures. Victimization. The Committee previously requested the Government to provide information on how effect is given to Standard A5.1.5, paragraphs 3 and 4. The Committee notes that rule 26(3) of the Merchant Shipping (Maritime Labour) Rules, 2016 provides that a seafarer shall, at all times, have the unequivocal right to be accompanied and to be represented by another seafarer of his choice on board the ship and rule 26(8) provides that in all cases, seafarers shall also have the right to file their complaints directly with the Master or recruitment and placement service provider or shipowner or any other legal entity that the seafarers may consider appropriate for the purpose. While noting this information, the Committee requests the Government to indicate the measures adopted to ensure the right to safeguards against possibility of victimization of seafarers for filing complaints (Standard A5.1.5, paragraph 3).

Regulation 5.1.6. Flag State responsibilities. Marine casualties. Observing that, under section 358 of the Merchant Shipping Act, 1958, a shipping casualty shall be deemed to occur when any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coast of India, the Committee requested the Government to provide information on how it ensures that an official inquiry is carried out in any serious marine casualty, leading to injury and not only in cases of loss of life. The Committee notes the Government’s indication that Merchant Shipping Notice 26 of 2002 (Annexure-13) and Merchant Shipping Notice 13 of 2005 (Annexure-14) prescribe the requirements and procedure for all Indian shipping companies and recruiting agents of Indian seafarers to provide the information on marine casualties and report such incidents to the Directorate General of Shipping in order to carry out the casualty investigation and determine the cause for such casualties. The Government further indicates that the Directorate has prepared a Standard Operating Procedure/Flow Chart for conducting inquiry into marine casualty. While noting this information, the Committee observes that it is not clear whether investigations are also initiated in cases of serious marine casualties leading to injuries where there is no loss of life. Noting that the Government provides no information in this respect, the Committee again requests it to indicate how it gives full effect to Regulation 5.1.6, paragraph 1 in case of any serious marine casualty leading to injury.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. In its previous request, theCommittee requested the Government to provide detailed information on how full effect is given to Standard A5.2.1, including any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7. The Committee notes that the Government refers to the checklist for inspection provided for under Annexure-III of Merchant Shipping Notice No. 16 of 2016. The Committee notes, however, that Merchant Shipping Notice No. 16 of 2016 and the checklist for inspection implement the responsibilities of India as a flag State. The Committee requests the Government to provide information on the procedure established, in accordance with rule 27 of the Merchant Shipping Rules, 2016, for an effective port State control inspection and monitoring system to verify conformity with the requirements of the Conventionand to provide a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee previously noted that the on-shore complaint-handling procedure seems to only cover Indian seafarers and therefore requested the Government to indicate how full effect is given toRegulation 5.2.2andStandard A5.2.2.The Committee notes that the Government refers to the Directorate vide Crew Branch Circular 3 of 2011 and to Merchant Shipping Notice No. 3 of 2013, which have established a seafarers' grievance redressal system. The Government further indicates that this system has further been modified to online grievance portal for swift disposal of grievances online vide Merchant Shipping Notice No. 6 of 2019. Noting that the Government does not provide information as to how onshore seafarer complaint-handling procedures are not just limited to Indian nationals, the Committee requests the Government to specify the procedures that enable seafarers on ships calling at Indian ports, irrespective of their nationality or the flag of the ship on which they work, to report a complaint of a breach of the requirements of the Convention.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Impact of the COVID-19 pandemic. The Committee takes note of 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. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments on the General Report of 2021 on this issue.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It further notes that the Government previously ratified three maritime labour Conventions which have been denounced following the entry into force of the MLC, 2006, for India. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered into force for India on 23 January 2019. The Committee notes the observations of the Forward Seamen’s Union of India, received by the Office on 23 January 2017. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. 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 I. General questions on application. Implementing measures. The Committee notes that the Government provides three Industry Agreements which are in force for the period 2015–19. The Committee notes that these agreements are applicable respectively to Off Shore, Home Trade and Foreign going Ratings and Petty Officers. For the determination of their scope of application, they refer to “seamen engaged on Offshore Indian Articles of Agreement” or to “seamen engaged on Home Trade Indian Articles of Agreement”. The Committee requests the Government to provide, in relation with the implementation of the MLC, 2006, more detailed information on the scope of application of these three Industry Agreements.

Article III. Fundamental rights and principles. The Committee notes that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), have not been ratified by India. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee expects to receive concrete information on how the country or territory has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee notes that, while the Government refers to an established practice that collective bargaining between the stakeholders is given due recognition, it has not provided any explanation on how effect is given, in the context of the Convention, to the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining. The Committee requests the Government to provide further information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect these fundamental rights.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that MS Notice No. 5 of 2017, paragraph 3, provides that the provisions of MLC, 2006, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall be applicable to trainees and cadets as for other seafarers. The Government indicates in its report that, after extensive consultation with the shipowners and seafarers, it was clarified that the trainee is a seafarer. However, the Committee notes that under paragraph 4 of MS Notice No. 5 of 2017, relaxation with the respect of some provisions of the Merchant Shipping (Maritime Labour) Rules, 2016, has been granted with respect to trainees and cadets concerning the maximum duration of service on board to which the seafarers shall be entitled for repatriation and social security measures. The Committee notes that according to the Rules, all other provisions of the Convention, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall apply with respect to trainees/cadets. The Committee further notes that paragraph 3 of MS Notice No. 8 of 2017 provides that “the matter has been further examined and it is observed that trainees/cadets are not covered in the prevailing collective bargaining agreements. It is therefore clarified that trainees/cadets are exempted from the provision of implementation of the Merchant Shipping (Maritime Labour) Rules, 2016, in respect of payment of wages applicable for other seafarers under prevailing CBA”. The Committee notes that, while considering that trainees and cadets are seafarers, the Government has decided to provide them with a different level of protection regarding the maximum period of service on board, social security and wages. The Committee recalls that it considers, from the combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5, paragraph 2(b), on repatriation, that the maximum continuous period of shipboard service without leave is 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide information on the specific exception provided for the trainees and the cadets and to indicate the maximum period of service on board following which they shall be entitled to annual leave. Concerning the social security protection and the wages of the trainees and the cadets, the Committee recalls that Article VI, paragraphs 3 and 4, of the Convention, allows a Member which is not in a position to implement the rights and principles in the manner set out in Part A of the Code (Standards), unless expressly provided otherwise in the Convention, to implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A. It recalls that any law, regulation, collective agreement or other implementing measure shall be considered to be substantially equivalent, in the context of the Convention, if the Member satisfies itself that: (a) it is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned; and (b) it gives effect to the provision or provisions of Part A of the Code concerned. The Committee recalls that any substantial equivalences that have been adopted must be stated in Part I of the Declaration of Maritime Labour Compliance (DMLC) that is to be carried on board ships that have been certified. The Committee requests the Government to confirm if it has decided to adopt measures which are substantially equivalent regarding trainees and cadets, and to provide detailed information on how the measures adopted conduce to the full achievement of the general object and purpose of the provisions of Part A of the Code concerned and how they give effect to this provision or these provisions.

Regulation 1.4 and Standard A1.4, paragraph 5. Recruitment and placement. System of protection. The Committee notes that Rule 5(g) of the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016, provides that the recruitment and placement services provider shall establish a system of protection, by way of a bank guarantee to compensate seafarers for any monetary loss that they may incur as a result of the failure of a recruitment and placement service and the relevant shipowner under the seafarers’ employment agreement to meet his/her obligation to them. The Committee notes however that when providing details about the amount of the bank guarantee, Rule 15 of the above-mentioned Rules refers only to seafarers who are placed on foreign flag ships. The Committee requests the Government to clarify whether the system of protection established to give effect to Standard A1.4, paragraph V(vi), of the Convention also applies to seafarers who are placed on Indian flag ships and to indicate the relevant national provisions.

Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes that the Government has not provided information on the measures taken to require that shipowners of ships flying the Indian flag who use recruitment and placement services which operate in countries that have not ratified the Convention, ensure, as far as practicable, that those services meet the requirements of the Convention. The Committee therefore requests the Government to explain how it gives effect to Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10, of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee notes that Rule 8(7) of the Merchant Shipping (Maritime Labour Rules), 2016, provides that a period of notice shorter than the minimum period may be given in circumstances which are recognized “under the applicable collective bargaining agreements” as justifying termination of the employment agreement at shorter notice or without notice. In determining these circumstances, it shall be ensured by the shipowner that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. Noting that the Industry Agreements provided by the Government do not contain provisions on the compassionate or other urgent reasons which justify a shorter notice period, the Committee requests the Government to provide further information on how those circumstances are determined in practice in order to ensure full compliance with Standard A2.1, paragraph 6.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that Rule 8(1)(e) of Merchant Shipping (Maritime Labour) Rules, 2016, provides that at the end of, or termination of, contract, every seafarer’s continuous discharge certificate shall be endorsed with a record of employment on board the ship. The Committee notes that the Merchant Shipping (Maritime Labour) Rules, 2016, do not require, as Standard A2.1, paragraph 3, of the Convention, that the record of employment shall not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee requests the Government to indicate how full effect is given to Standard A2.1, paragraph 3, by ensuring that records of employment do not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee further requests the Government to provide an example of the approved document for seafarers’ records of employment.

Regulation 2.2 and Standard A2.2, paragraph 6. Wages. The Committee notes the observations submitted by the Forward Seaman’s Union of India (FSU), received by the Office on 23 January 2017 alleging that shipowners of Indian-registered ships have entered into an “urgent wage agreement” with one trade union, on 2 April 2016, disregarding the Merchant Shipping Maritime (Labour) Rules, 2016, and the amount of the minimum wage set by the Joint Maritime Commission. The FSU refers to Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the wages included in the collective bargaining agreement or the seafarers’ employment agreement shall be in accordance with the guidelines as laid down in the MLC, 2006. For the FSU, this includes Guideline B2.2.4, according to which the basic pay or wages for a calendar month of service for an able seafarer should be no less than the amount periodically set by the Joint Maritime Commission or another body authorized by the Governing Body of the International Labour Office. The FSU further explains that the basic payment of the Able Seamen of Indian ships are fixed at US$105, whereas the minimum wages as per the Joint Maritime Commission is US$614 for the period 2016–18. The Committee notes that the Government, in its reply received on 26 November 2018, confirms that Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, refers to the Guidelines of the MLC, 2006, and that though these guidelines are generally recommendatory in nature, India has adopted those Guidelines for implementation. The Government further states that according to its reading of the Guidelines, if there is an agreement between the shipowners’ association and the seafarers’ union, the agreed wage would prevail over the international minimum wage. The Government adds that in a meeting held with relevant stakeholders to discuss this issue, shipowners’ expressed their inability to pay the minimum wage set by the Joint Maritime Commission. It further informs that the minimum wage has traditionally been agreed by the Indian National Shipowners’ Association (INSA), the most representative shipowners’ organization in the country, and the National Seafarers’ Union of India and another trade union based in Kolkata. Following the complaint made by the FSU, the Government has requested the relevant authority to provide an updated list of seafarers’ trade unions along with their number of affiliates so that they can determine what is the union representing the majority of seafarers. It concludes, indicating that upon receipt of those numbers, an alternative mechanism for entering into the wage agreement can be worked out. The Committee requests the Government to provide information on the development of the situation and on any mechanisms put in place to deal with the minimum wage issues. The Committee also requests the Government to indicate how Guideline B2.2 of the Convention (calculation and payment of wages; minimum wage and minimum monthly basic pay or wage figure for able seafarers) has been given mandatory force in Indian legislation.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of agreements to forgo annual leave. The Committee notes that Rule 11(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that any agreement to forgo the minimum annual leave with pay, except in cases provided for by the Director-General of Shipping, shall be prohibited, as it is required under Standard A2.4, paragraph 3, of the Convention. The Committee recalls that it considers that the possibility to authorize exceptions to the prohibition of agreements to forgo minimum annual leave needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. The Committee requests the Government to provide detailed information on the authorized exceptions that have been granted by the Director-General of Shipping under Standard A2.4, and the ground for such authorizations.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs. The Committee notes that Rule 12(4) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall not make any provision requiring seafarers to make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the wages of seafarers or other entitlements except where the seafarer has been found, as per the applicable collective bargaining agreements, to be “in default” of the seafarer’s employment obligations. The Committee recalls that under Standard A2.5.1, paragraph 3, each Member shall prohibit shipowners from recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in “serious default” of the seafarer’s employment obligations. Noting that the national legislation refers to the situation of “default” and not “serious default” as required by the Convention, the Committee requests the Government to indicate the measures taken to give full effect to Standard A2.5.1, paragraph 3, of the Convention. It further requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers employment obligations”.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. The Committee notes that Rule 12(3) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner shall ensure that there are appropriate provisions in collective bargaining agreements, specifying the circumstances in which seafarers are entitled to repatriation; the maximum duration of service periods on board following which a seafarer is entitled to repatriation – which shall be less than 12 months; and the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation, the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners”. The Committee recalls that Standard A2.5.1, paragraph 2, requires each Member to ensure that there are appropriate provisions on these issues in its laws and regulations or other measures or in collective bargaining agreements. The Committee requests the Government to provide a copy of all applicable collective agreements indicating the relevant provisions which are giving effect to Standard A2.5.1, paragraph 2.

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. In this regard, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (If yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer? (If yes, how did your country respond?); (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3, must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions and to indicate in each case the applicable national provisions.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. The Committee notes that Rule 13 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall ensure that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such loss or foundering which shall be specified in the collective bargaining agreement. The Committee requests the Government to provide any stipulation of the collective bargaining agreements in force that specify the amount of the indemnity against unemployment resulting from a ship’s loss or foundering. The Committee further requests the Government to indicate how due consideration has been given to Guideline B2.6.1 regarding the calculation of the indemnity against unemployment.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that Rule 6(2) of the Merchant Shipping (Seafarers’ Accommodation) Rules, 2016, provides that the seafarer’s accommodation facilities and its maintenance on a ship shall be verified during the initial, intermediate, renewal and additional surveys associated with the maritime labour certificate and declaration of maritime labour compliance. The Committee recalls that every ship, within the meaning of the Convention shall be inspected and not only ships to which a maritime labour certificate and a declaration of maritime labour compliance shall be issued. According to Standard A3.1, paragraph 3, of the Convention, 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. The Committee requests the Government to indicate if every ship, within the meaning of the MLC, 2006, shall be inspected as provided by Standard A3.1, paragraph 3.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. Exemptions. The Committee notes that the Merchant Shipping (Seafarers Accommodation) Rules, 2016, provide that the provisions of these Rules “shall not apply to any ship plying in voyages within territorial waters, the seafarers of which are not required to stay on board overnight for periods exceeding eight hours”. They further provide that the Director-General may accept equivalent arrangements on a ship or deviations from the requirements specified in these Rules, when such deviations can be clearly justified, subject to protecting the seafarers’ living conditions, health and safety. The Committee recalls that Standard A3.1, paragraph 21, of the Convention provides that any exemptions with respect to the requirements of this Standard may be made “only where they are expressly permitted in this Standard” and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that exemptions are limited to those expressly permitted by the Convention and to provide detailed information on the exemptions granted.

Regulation 4.1 and the Code. Medical care ashore. The Committee notes that Rule 18 of the Merchant Shipping (Maritime Labour) Rules, 2016, contains provisions on the shipowners’ responsibilities regarding medical care on board but does not regulate India’s obligation, as a coastal State, to ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to its medical facilities on shore (Regulation 4.1, paragraph 3). There seems to be no provision prescribing that the “competent authority” shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, “shall be available free of charge to all ships irrespective of the flag that they fly” (Standard A4.1, paragraph 4(d)). The Committee requests the Government to provide detailed information on how effect is given to Regulation 4.1, paragraph 3, and to Standard A4.1, paragraph 4(d).

Regulation 4.1 and Standard A4.1, paragraphs 2 and 4(1). Standard medical report form. Medicine chest, medical equipment and medical guide. The Committee notes that Rule 18(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner” shall adopt a standard medical report form for use by the masters of the ship and relevant onshore and on-board medical personnel as specified by the Director-General of Shipping and the form when completed, its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers. Recalling that Standard A4.1, paragraph 3, provides that the “competent authority” shall adopt a standard medical report form, the Committee requests to indicate whether such report form has been adopted.

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, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while the situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above mentioned questions, indicating in each case the applicable national provisions.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government’s report, as well as the examples of DMLC, Part I and Part II submitted with the report, refer to Rule 20 of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the Director-General of Shipping may specify separate guidelines from time to time, for the management of occupational safety and protection of health on board the ships. The Committee notes however that such guidelines do not seem to have been adopted yet. The Committee recalls that member States shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations (Regulation 4.3, paragraph 2). The Committee further recalls that members shall adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for occupational safety and health protection and accident prevention on ships that fly its flag (Regulation 4.3, paragraph 3). The Committee requests the Government to indicate the laws, regulations and guidelines adopted to give effect to Regulation 4.3 and Standard A4.3.

Regulation 4.5 and the Code. Social security. The Committee notes that, at the time of ratification, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security: maternity benefit; invalidity benefit and survivors’ benefit. Noting that the Government indicates that discussions are taking place on the possibility to extend the social security protection for seafarers to other social security branches (old-age benefit, family benefit), not specified at the time of ratification, the Committee requests the Government to provide information on any developments on this issue in accordance with Regulation 4.5, paragraph 2, and Standard A4.5, paragraph 11).

The Committee notes that, according to the information provided by the Government for the three branches specified, social security coverage is not available to all seafarers ordinarily resident in India, but only to Indian seafarers, holding CDC Book, and who are recruited/engaged by the Indian shipowners or through registered Recruitment and Placement Services, for Indian or foreign flag ships. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory, regardless of their nationality or of the flag of the ships they work on. Noting that the Government in its report has not indicated whether seafarers are residents or otherwise domiciled in the territory, the Committee requests the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in India are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in India, in conformity with Regulation 4.5 of the Convention. The Committee recalls that this responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements (Standard A4.5, paragraph 3).

Regulation 5.1.1 and Standard A5.1.1, paragraph 2. Flag State responsibilities. General principles. Copy of the MLC, 2006 on board. The Committee notes that the Annexure III of the MS Notice No. 16 of 2016 provides a checklist for inspections which indicates that the inspectors shall control that a copy of the MLC, 2006, is available on board. The Committee notes that the MS Notice No. 9 of 2017, which is applicable to ships of less than 500 gross tonnage, does not include the same requirements. Recalling that pursuant to Standard A5.1.1, paragraph 2, each Member shall require all ships that fly its flag to have a copy of the Convention available on board, the Committee requests the Government to indicate how it ensures compliance with this requirement of the Convention.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that inspection under the MLC, 2006, has been delegated to recognized organizations. The Committee notes however that the Government has not provided further information on the measures taken to give effect to Regulation 5.1.2. In particular, the Committee recalls that Standard A5.1.2 provides that the competent authority shall review the competency and independence of the organization to be recognized (paragraph 1) and establish a system to ensure the adequacy of work performed by recognized organizations (paragraph 3(a)), as well as procedures for communication with and oversight of such organizations (paragraph 3(b)). The Committee also recalls that any authorizations granted with respect to inspections shall, as a minimum, empower the recognized organization to require the rectification of deficiencies that it identifies in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State (paragraph 2). The Committee requests the Government to indicate the measures taken to give effect to these requirements of Standard A5.1.2, and to provide an example or examples of authorizations given to recognized organizations.

Regulation 5.1.3 and Standard A5.1.3, paragraph 12. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. Documents on board. The Committee notes that section 176A of the Merchant Shipping Act, 1958, provides that the shipping master, surveyor, seamen’s welfare officer, port health officer, Indian consular officer, or any other officer at any port duly authorized in this behalf by the Central Government, may inspect any ship, in such manner as may be prescribed, and the master of the ship or any person having charge over the ship shall make available to such inspecting officer, the maritime labour certificate and the declaration of maritime labour compliance. The Committee recalls that Standard A5.1.3, paragraph 12, provides that a current valid maritime labour certificate and declaration of maritime labour compliance shall be carried on the ship and a copy shall be posted in a conspicuous place on board where it is available to the seafarers. A copy shall be made available in accordance with national laws and regulations, upon request, to seafarers, flag State inspectors, authorized officers in port States, and shipowners’ and seafarers’ representatives. The Committee requests the Government to indicate how effect is given to this provision.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the maritime labour certificate and the declaration of maritime labour compliance. The Committee notes that the Government has not indicated any relevant provision establishing the circumstances in which a maritime labour certificate ceases to be valid and the circumstances in which a maritime labour certificate must be withdrawn (Standard A5.1.3, paragraphs 14–17). The Committee therefore requests the Government to indicate how it gives effect to these requirements of the Convention.

Regulation 5.1.5 and Standard A5.1.5, paragraph 3. Flag State responsibilities. On-board complaint procedures. Victimization. The Committee notes the Government’s indication that Rule 28(2) of Merchant Shipping (Maritime Labour) Rules, 2016, is the legal provision under which victimization of seafarers for filing a complaint is prohibited and penalized in India. However, the Committee notes that this Rule deals with the on shore complaint-handling procedures and does not seem to apply to on-board complaints. The Committee requests the Government to provide information on how effect is given to Standard A5.1.5, paragraph 3, according to which the on-board complaint procedures shall include safeguards against the possibility of victimization of seafarers for filing complaints. The Committee also requests the Government to indicate the applicable national provisions which require that a copy of the on-board complaint procedures applicable on the ship is provided to the seafarers (Standard A5.1.5, paragraph 4).

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that section 358 of the Merchant Shipping Act, 1958, provides that a shipping casualty shall be deemed to occur when any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coast of India. 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 requests the Government to provide information on how it ensures that an official inquiry is carried out in any serious marine casualty, leading to injury and not only in cases of loss of life.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that under Rule 27 of the Merchant Shipping (Maritime Labour) Rules, 2016, the Director-General of Shipping shall establish the procedure for inspection as required under the Convention for fulfilling its port State responsibilities. The Committee requests the Government to provide detailed information on how full effect is given to Standard A5.2.1, including any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that Rule 28 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that an on shore complaint redress procedure shall be followed in all Indian ports as specified by the Director-General of Shipping, in consultation with the shipowners’ and seafarers’ organizations concerned, who are parties to the Collective Bargaining Agreement as reflected in the seafarers employment agreement, where applicable. The Committee also notes that the MS Notice No. 3 of 2013 establishes a relevant grievance redress mechanism but only for Indian seafarers. The Committee requests the Government to indicate how full effect is given to Regulation 5.2.2 and Standard A5.2.2.

Statistical information. Noting that some required statistical information has not been provided in the report, the Committee requests the Government to provide clear and detailed information regarding: (a) the number of seafarers who are working on national flag ships, distinguishing those who are engaged or not engaged in international voyages (or voyages between ports in other countries); (b) the number of seafarers who are nationals or residents or otherwise domiciled in the territory; and (c) the number of foreign seafarers who are working on Indian flag ships.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). It further notes that the Government previously ratified three maritime labour Conventions which have been denounced following the entry into force of the MLC, 2006, for India. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 entered into force for India on 23 January 2019. The Committee notes the observations of the Forward Seamen’s Union of India, received by the Office on 23 January 2017. The Committee notes the efforts undertaken by the Government and the social partners to implement the Convention. 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 I. General questions on application. Implementing measures. The Committee notes that the Government provides three Industry Agreements which are in force for the period 2015–19. The Committee notes that these agreements are applicable respectively to Off Shore, Home Trade and Foreign going Ratings and Petty Officers. For the determination of their scope of application, they refer to “seamen engaged on Offshore Indian Articles of Agreement” or to “seamen engaged on Home Trade Indian Articles of Agreement”. The Committee requests the Government to provide, in relation with the implementation of the MLC, 2006, more detailed information on the scope of application of these three Industry Agreements.

Article III. Fundamental rights and principles. The Committee notes that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), have not been ratified by India. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee expects to receive concrete information on how the country or territory has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee notes that, while the Government refers to an established practice that collective bargaining between the stakeholders is given due recognition, it has not provided any explanation on how effect is given, in the context of the Convention, to the fundamental rights to freedom of association and the effective recognition of the right to collective bargaining. The Committee requests the Government to provide further information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect these fundamental rights.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. The Committee notes that MS Notice No. 5 of 2017, paragraph 3, provides that the provisions of MLC, 2006, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall be applicable to trainees and cadets as for other seafarers. The Government indicates in its report that, after extensive consultation with the shipowners and seafarers, it was clarified that the trainee is a seafarer. However, the Committee notes that under paragraph 4 of MS Notice No. 5 of 2017, relaxation with the respect of some provisions of the Merchant Shipping (Maritime Labour) Rules, 2016, has been granted with respect to trainees and cadets concerning the maximum duration of service on board to which the seafarers shall be entitled for repatriation and social security measures. The Committee notes that according to the Rules, all other provisions of the Convention, as enshrined in the Merchant Shipping (Maritime Labour) Rules, 2016, shall apply with respect to trainees/cadets. The Committee further notes that paragraph 3 of MS Notice No. 8 of 2017 provides that “the matter has been further examined and it is observed that trainees/cadets are not covered in the prevailing collective bargaining agreements. It is therefore clarified that trainees/cadets are exempted from the provision of implementation of the Merchant Shipping (Maritime Labour) Rules, 2016, in respect of payment of wages applicable for other seafarers under prevailing CBA”. The Committee notes that, while considering that trainees and cadets are seafarers, the Government has decided to provide them with a different level of protection regarding the maximum period of service on board, social security and wages. The Committee recalls that it considers, from the combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5, paragraph 2(b), on repatriation, that the maximum continuous period of shipboard service without leave is 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to provide information on the specific exception provided for the trainees and the cadets and to indicate the maximum period of service on board following which they shall be entitled to annual leave. Concerning the social security protection and the wages of the trainees and the cadets, the Committee recalls that Article VI, paragraphs 3 and 4, of the Convention, allows a Member which is not in a position to implement the rights and principles in the manner set out in Part A of the Code (Standards), unless expressly provided otherwise in the Convention, to implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A. It recalls that any law, regulation, collective agreement or other implementing measure shall be considered to be substantially equivalent, in the context of the Convention, if the Member satisfies itself that: (a) it is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned; and (b) it gives effect to the provision or provisions of Part A of the Code concerned. The Committee recalls that any substantial equivalences that have been adopted must be stated in Part I of the Declaration of Maritime Labour Compliance (DMLC) that is to be carried on board ships that have been certified. The Committee requests the Government to confirm if it has decided to adopt measures which are substantially equivalent regarding trainees and cadets, and to provide detailed information on how the measures adopted conduce to the full achievement of the general object and purpose of the provisions of Part A of the Code concerned and how they give effect to this provision or these provisions.

Regulation 1.4 and Standard A1.4, paragraph 5. Recruitment and placement. System of protection. The Committee notes that Rule 5(g) of the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016, provides that the recruitment and placement services provider shall establish a system of protection, by way of a bank guarantee to compensate seafarers for any monetary loss that they may incur as a result of the failure of a recruitment and placement service and the relevant shipowner under the seafarers’ employment agreement to meet his/her obligation to them. The Committee notes however that when providing details about the amount of the bank guarantee, Rule 15 of the above-mentioned Rules refers only to seafarers who are placed on foreign flag ships. The Committee requests the Government to clarify whether the system of protection established to give effect to Standard A1.4, paragraph V(vi), of the Convention also applies to seafarers who are placed on Indian flag ships and to indicate the relevant national provisions.

Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10. Recruitment and placement. Services based in countries in which the Convention does not apply. The Committee notes that the Government has not provided information on the measures taken to require that shipowners of ships flying the Indian flag who use recruitment and placement services which operate in countries that have not ratified the Convention, ensure, as far as practicable, that those services meet the requirements of the Convention. The Committee therefore requests the Government to explain how it gives effect to Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10, of the Convention.

Regulation 2.1 and Standard A2.1, paragraph 6. Seafarers’ employment agreement. Termination. Shorter notice period for urgent reasons. The Committee notes that Rule 8(7) of the Merchant Shipping (Maritime Labour Rules), 2016, provides that a period of notice shorter than the minimum period may be given in circumstances which are recognized “under the applicable collective bargaining agreements” as justifying termination of the employment agreement at shorter notice or without notice. In determining these circumstances, it shall be ensured by the shipowner that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. Noting that the Industry Agreements provided by the Government do not contain provisions on the compassionate or other urgent reasons which justify a shorter notice period, the Committee requests the Government to provide further information on how those circumstances are determined in practice in order to ensure full compliance with Standard A2.1, paragraph 6.

Regulation 2.1 and Standard A2.1, paragraphs 1(e) and 3. Seafarers’ employment agreement. Record of employment. The Committee notes that Rule 8(1)(e) of Merchant Shipping (Maritime Labour) Rules, 2016, provides that at the end of, or termination of, contract, every seafarer’s continuous discharge certificate shall be endorsed with a record of employment on board the ship. The Committee notes that the Merchant Shipping (Maritime Labour) Rules, 2016, do not require, as Standard A2.1, paragraph 3, of the Convention, that the record of employment shall not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee requests the Government to indicate how full effect is given to Standard A2.1, paragraph 3, by ensuring that records of employment do not contain any statement as to the quality of the seafarers’ work or as to their wages. The Committee further requests the Government to provide an example of the approved document for seafarers’ records of employment.

Regulation 2.2 and Standard A2.2, paragraph 6. Wages. The Committee notes the observations submitted by the Forward Seaman’s Union of India (FSU), received by the Office on 23 January 2017 alleging that shipowners of Indian-registered ships have entered into an “urgent wage agreement” with one trade union, on 2 April 2016, disregarding the Merchant Shipping Maritime (Labour) Rules, 2016, and the amount of the minimum wage set by the Joint Maritime Commission. The FSU refers to Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the wages included in the collective bargaining agreement or the seafarers’ employment agreement shall be in accordance with the guidelines as laid down in the MLC, 2006. For the FSU, this includes Guideline B2.2.4, according to which the basic pay or wages for a calendar month of service for an able seafarer should be no less than the amount periodically set by the Joint Maritime Commission or another body authorized by the Governing Body of the International Labour Office. The FSU further explains that the basic payment of the Able Seamen of Indian ships are fixed at US$105, whereas the minimum wages as per the Joint Maritime Commission is US$614 for the period 2016–18. The Committee notes that the Government, in its reply received on 26 November 2018, confirms that Rule 9(5) of the Merchant Shipping (Maritime Labour) Rules, 2016, refers to the Guidelines of the MLC, 2006, and that though these guidelines are generally recommendatory in nature, India has adopted those Guidelines for implementation. The Government further states that according to its reading of the Guidelines, if there is an agreement between the shipowners’ association and the seafarers’ union, the agreed wage would prevail over the international minimum wage. The Government adds that in a meeting held with relevant stakeholders to discuss this issue, shipowners’ expressed their inability to pay the minimum wage set by the Joint Maritime Commission. It further informs that the minimum wage has traditionally been agreed by the Indian National Shipowners’ Association (INSA), the most representative shipowners’ organization in the country, and the National Seafarers’ Union of India and another trade union based in Kolkata. Following the complaint made by the FSU, the Government has requested the relevant authority to provide an updated list of seafarers’ trade unions along with their number of affiliates so that they can determine what is the union representing the majority of seafarers. It concludes, indicating that upon receipt of those numbers, an alternative mechanism for entering into the wage agreement can be worked out. The Committee requests the Government to provide information on the development of the situation and on any mechanisms put in place to deal with the minimum wage issues. The Committee also requests the Government to indicate how Guideline B2.2 of the Convention (calculation and payment of wages; minimum wage and minimum monthly basic pay or wage figure for able seafarers) has been given mandatory force in Indian legislation.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. Prohibition of agreements to forgo annual leave. The Committee notes that Rule 11(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that any agreement to forgo the minimum annual leave with pay, except in cases provided for by the Director-General of Shipping, shall be prohibited, as it is required under Standard A2.4, paragraph 3, of the Convention. The Committee recalls that it considers that the possibility to authorize exceptions to the prohibition of agreements to forgo minimum annual leave needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. The Committee requests the Government to provide detailed information on the authorized exceptions that have been granted by the Director-General of Shipping under Standard A2.4, and the ground for such authorizations.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs. The Committee notes that Rule 12(4) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall not make any provision requiring seafarers to make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the wages of seafarers or other entitlements except where the seafarer has been found, as per the applicable collective bargaining agreements, to be “in default” of the seafarer’s employment obligations. The Committee recalls that under Standard A2.5.1, paragraph 3, each Member shall prohibit shipowners from recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in “serious default” of the seafarer’s employment obligations. Noting that the national legislation refers to the situation of “default” and not “serious default” as required by the Convention, the Committee requests the Government to indicate the measures taken to give full effect to Standard A2.5.1, paragraph 3, of the Convention. It further requests the Government to provide information on the procedure to be followed and the standard of proof to be applied before any seafarer covered by the Convention can be found to be in “serious default of the seafarers employment obligations”.

Regulation 2.5 and Standard A2.5.1, paragraph 2(c). Repatriation. Entitlements. The Committee notes that Rule 12(3) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner shall ensure that there are appropriate provisions in collective bargaining agreements, specifying the circumstances in which seafarers are entitled to repatriation; the maximum duration of service periods on board following which a seafarer is entitled to repatriation – which shall be less than 12 months; and the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation, the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners”. The Committee recalls that Standard A2.5.1, paragraph 2, requires each Member to ensure that there are appropriate provisions on these issues in its laws and regulations or other measures or in collective bargaining agreements. The Committee requests the Government to provide a copy of all applicable collective agreements indicating the relevant provisions which are giving effect to Standard A2.5.1, paragraph 2.

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. In this regard, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (If yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer? (If yes, how did your country respond?); (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3, must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the above-mentioned questions and to indicate in each case the applicable national provisions.

Regulation 2.6 and Standard A2.6, paragraph 1. Compensation for the ship’s loss or foundering. Unemployment indemnity. The Committee notes that Rule 13 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that the shipowner shall ensure that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such loss or foundering which shall be specified in the collective bargaining agreement. The Committee requests the Government to provide any stipulation of the collective bargaining agreements in force that specify the amount of the indemnity against unemployment resulting from a ship’s loss or foundering. The Committee further requests the Government to indicate how due consideration has been given to Guideline B2.6.1 regarding the calculation of the indemnity against unemployment.

Regulation 3.1 and Standard A3.1, paragraph 3. Accommodation and recreational facilities. Flag State inspections. The Committee notes that Rule 6(2) of the Merchant Shipping (Seafarers’ Accommodation) Rules, 2016, provides that the seafarer’s accommodation facilities and its maintenance on a ship shall be verified during the initial, intermediate, renewal and additional surveys associated with the maritime labour certificate and declaration of maritime labour compliance. The Committee recalls that every ship, within the meaning of the Convention shall be inspected and not only ships to which a maritime labour certificate and a declaration of maritime labour compliance shall be issued. According to Standard A3.1, paragraph 3, of the Convention, 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. The Committee requests the Government to indicate if every ship, within the meaning of the MLC, 2006, shall be inspected as provided by Standard A3.1, paragraph 3.

Regulation 3.1 and Standard A3.1. Accommodation and recreational facilities. Exemptions. The Committee notes that the Merchant Shipping (Seafarers Accommodation) Rules, 2016, provide that the provisions of these Rules “shall not apply to any ship plying in voyages within territorial waters, the seafarers of which are not required to stay on board overnight for periods exceeding eight hours”. They further provide that the Director-General may accept equivalent arrangements on a ship or deviations from the requirements specified in these Rules, when such deviations can be clearly justified, subject to protecting the seafarers’ living conditions, health and safety. The Committee recalls that Standard A3.1, paragraph 21, of the Convention provides that any exemptions with respect to the requirements of this Standard may be made “only where they are expressly permitted in this Standard” and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that exemptions are limited to those expressly permitted by the Convention and to provide detailed information on the exemptions granted.

Regulation 4.1 and the Code. Medical care ashore. The Committee notes that Rule 18 of the Merchant Shipping (Maritime Labour) Rules, 2016, contains provisions on the shipowners’ responsibilities regarding medical care on board but does not regulate India’s obligation, as a coastal State, to ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to its medical facilities on shore (Regulation 4.1, paragraph 3). There seems to be no provision prescribing that the “competent authority” shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, “shall be available free of charge to all ships irrespective of the flag that they fly” (Standard A4.1, paragraph 4(d)). The Committee requests the Government to provide detailed information on how effect is given to Regulation 4.1, paragraph 3, and to Standard A4.1, paragraph 4(d).

Regulation 4.1 and Standard A4.1, paragraphs 2 and 4(1). Standard medical report form. Medicine chest, medical equipment and medical guide. The Committee notes that Rule 18(2) of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that “the shipowner” shall adopt a standard medical report form for use by the masters of the ship and relevant onshore and on-board medical personnel as specified by the Director-General of Shipping and the form when completed, its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers. Recalling that Standard A4.1, paragraph 3, provides that the “competent authority” shall adopt a standard medical report form, the Committee requests to indicate whether such report form has been adopted.

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, the Committee takes note that the Merchant Shipping (Maritime Labour) Rules, 2016, are giving effect to the 2014 amendments. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while the situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (If yes, please specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the above mentioned questions, indicating in each case the applicable national provisions.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that the Government’s report, as well as the examples of DMLC, Part I and Part II submitted with the report, refer to Rule 20 of the Merchant Shipping (Maritime Labour) Rules, 2016, which provides that the Director-General of Shipping may specify separate guidelines from time to time, for the management of occupational safety and protection of health on board the ships. The Committee notes however that such guidelines do not seem to have been adopted yet. The Committee recalls that member States shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations (Regulation 4.3, paragraph 2). The Committee further recalls that members shall adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for occupational safety and health protection and accident prevention on ships that fly its flag (Regulation 4.3, paragraph 3). The Committee requests the Government to indicate the laws, regulations and guidelines adopted to give effect to Regulation 4.3 and Standard A4.3.

Regulation 4.5 and the Code. Social security. The Committee notes that, at the time of ratification, in accordance with paragraphs 2 and 10 of Standard A4.5, the Government specified the following branches of social security: maternity benefit; invalidity benefit and survivors’ benefit. Noting that the Government indicates that discussions are taking place on the possibility to extend the social security protection for seafarers to other social security branches (old-age benefit, family benefit), not specified at the time of ratification, the Committee requests the Government to provide information on any developments on this issue in accordance with Regulation 4.5, paragraph 2, and Standard A4.5, paragraph 11).

The Committee notes that, according to the information provided by the Government for the three branches specified, social security coverage is not available to all seafarers ordinarily resident in India, but only to Indian seafarers, holding CDC Book, and who are recruited/engaged by the Indian shipowners or through registered Recruitment and Placement Services, for Indian or foreign flag ships. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide the complementary social security protection referred to in paragraph 1 of the Standard to all seafarers ordinarily resident in its territory, regardless of their nationality or of the flag of the ships they work on. Noting that the Government in its report has not indicated whether seafarers are residents or otherwise domiciled in the territory, the Committee requests the Government to provide information on the measures taken to ensure that all seafarers ordinarily resident in India are granted social security coverage in the branches specified, which is no less favourable than that enjoyed by shore workers resident in India, in conformity with Regulation 4.5 of the Convention. The Committee recalls that this responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements (Standard A4.5, paragraph 3).

Regulation 5.1.1 and Standard A5.1.1, paragraph 2. Flag State responsibilities. General principles. Copy of the MLC, 2006 on board. The Committee notes that the Annexure III of the MS Notice No. 16 of 2016 provides a checklist for inspections which indicates that the inspectors shall control that a copy of the MLC, 2006, is available on board. The Committee notes that the MS Notice No. 9 of 2017, which is applicable to ships of less than 500 gross tonnage, does not include the same requirements. Recalling that pursuant to Standard A5.1.1, paragraph 2, each Member shall require all ships that fly its flag to have a copy of the Convention available on board, the Committee requests the Government to indicate how it ensures compliance with this requirement of the Convention.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. The Committee notes the Government’s indication that inspection under the MLC, 2006, has been delegated to recognized organizations. The Committee notes however that the Government has not provided further information on the measures taken to give effect to Regulation 5.1.2. In particular, the Committee recalls that Standard A5.1.2 provides that the competent authority shall review the competency and independence of the organization to be recognized (paragraph 1) and establish a system to ensure the adequacy of work performed by recognized organizations (paragraph 3(a)), as well as procedures for communication with and oversight of such organizations (paragraph 3(b)). The Committee also recalls that any authorizations granted with respect to inspections shall, as a minimum, empower the recognized organization to require the rectification of deficiencies that it identifies in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State (paragraph 2). The Committee requests the Government to indicate the measures taken to give effect to these requirements of Standard A5.1.2, and to provide an example or examples of authorizations given to recognized organizations.

Regulation 5.1.3 and Standard A5.1.3, paragraph 12. Flag State responsibilities. Maritime labour certificate and declaration of maritime labour compliance. Documents on board. The Committee notes that section 176A of the Merchant Shipping Act, 1958, provides that the shipping master, surveyor, seamen’s welfare officer, port health officer, Indian consular officer, or any other officer at any port duly authorized in this behalf by the Central Government, may inspect any ship, in such manner as may be prescribed, and the master of the ship or any person having charge over the ship shall make available to such inspecting officer, the maritime labour certificate and the declaration of maritime labour compliance. The Committee recalls that Standard A5.1.3, paragraph 12, provides that a current valid maritime labour certificate and declaration of maritime labour compliance shall be carried on the ship and a copy shall be posted in a conspicuous place on board where it is available to the seafarers. A copy shall be made available in accordance with national laws and regulations, upon request, to seafarers, flag State inspectors, authorized officers in port States, and shipowners’ and seafarers’ representatives. The Committee requests the Government to indicate how effect is given to this provision.

Regulation 5.1.3 and Standard A5.1.3, paragraphs 14 and 15. Flag State responsibilities. End of validity of the maritime labour certificate and the declaration of maritime labour compliance. The Committee notes that the Government has not indicated any relevant provision establishing the circumstances in which a maritime labour certificate ceases to be valid and the circumstances in which a maritime labour certificate must be withdrawn (Standard A5.1.3, paragraphs 14–17). The Committee therefore requests the Government to indicate how it gives effect to these requirements of the Convention.

Regulation 5.1.5 and Standard A5.1.5, paragraph 3. Flag State responsibilities. On-board complaint procedures. Victimization. The Committee notes the Government’s indication that Rule 28(2) of Merchant Shipping (Maritime Labour) Rules, 2016, is the legal provision under which victimization of seafarers for filing a complaint is prohibited and penalized in India. However, the Committee notes that this Rule deals with the on shore complaint-handling procedures and does not seem to apply to on-board complaints. The Committee requests the Government to provide information on how effect is given to Standard A5.1.5, paragraph 3, according to which the on-board complaint procedures shall include safeguards against the possibility of victimization of seafarers for filing complaints. The Committee also requests the Government to indicate the applicable national provisions which require that a copy of the on-board complaint procedures applicable on the ship is provided to the seafarers (Standard A5.1.5, paragraph 4).

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that section 358 of the Merchant Shipping Act, 1958, provides that a shipping casualty shall be deemed to occur when any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coast of India. 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 requests the Government to provide information on how it ensures that an official inquiry is carried out in any serious marine casualty, leading to injury and not only in cases of loss of life.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes that under Rule 27 of the Merchant Shipping (Maritime Labour) Rules, 2016, the Director-General of Shipping shall establish the procedure for inspection as required under the Convention for fulfilling its port State responsibilities. The Committee requests the Government to provide detailed information on how full effect is given to Standard A5.2.1, including any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that Rule 28 of the Merchant Shipping (Maritime Labour) Rules, 2016, provides that an on shore complaint redress procedure shall be followed in all Indian ports as specified by the Director-General of Shipping, in consultation with the shipowners’ and seafarers’ organizations concerned, who are parties to the Collective Bargaining Agreement as reflected in the seafarers employment agreement, where applicable. The Committee also notes that the MS Notice No. 3 of 2013 establishes a relevant grievance redress mechanism but only for Indian seafarers. The Committee requests the Government to indicate how full effect is given to Regulation 5.2.2 and Standard A5.2.2.

Statistical information. Noting that some required statistical information has not been provided in the report, the Committee requests the Government to provide clear and detailed information regarding: (a) the number of seafarers who are working on national flag ships, distinguishing those who are engaged or not engaged in international voyages (or voyages between ports in other countries); (b) the number of seafarers who are nationals or residents or otherwise domiciled in the territory; and (c) the number of foreign seafarers who are working on Indian flag ships.

[The Government is asked to reply in full to the present comments in 2021.]