Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention du travail maritime, 2006 (MLC, 2006) - Bermudes

The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that 14 maritime labour Conventions had been declared applicable to Bermuda, which are no longer applicable following the entry into force of the MLC, 2006. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for Bermuda on 18 January 2017. It further notes that the Government’s report was received before the entry into force of the 2014 amendments. The Committee notes the efforts undertaken by the Government 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 III. Fundamental rights and principles. The Committee notes that the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182), have not been declared applicable to Bermuda. The Committee notes that the Government refers to several acts (Employment of Young Persons Act, 1963, the Merchant Shipping Act, 2002, as amended, Labour Relations Act, 1975, Human Rights Act, 1981, Employment Act, 2000) but does not provide any explanation on how these acts are giving effect. 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), 2, 3 and 7. Definition and scope of application. Seafarers. The Committee notes that the national Regulations adopted in 2013 to give effect to the Convention provide that “seafarer” means any person who is employed or engaged or works in any capacity on board a ship and that “where there is doubt as to whether a person working or engaged on a ship is a seafarer, the Minister shall make a determination, and shall be guided by the advice and guidance of the International Labour Organization”. The Committee recalls that, according to Article II, paragraph 3, in the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of the Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question. The Committee further recalls that this determination may only concern “categories of persons” and not individual persons. The Committee requests the Government to indicate the measures taken to ensure that any determination made by the Minister is adopted after consultation with the shipowners’ and seafarers’ organizations concerned as required under Article II, paragraph 3, and that it concerns “categories of persons” and not individual persons. The Committee further requests the Government to indicate if any such determination has been made.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. The Committee notes that several Regulations adopted since 2013 apply to Bermuda ships, wherever they may be, other than fishing vessels, vessels owned and operated by a government department or agency for non-commercial purposes, or pleasure vessels in which no seafarers are employed. The Committee also notes that the Government indicates that 33,648 seafarers are working on 198 ships flying Bermuda’s flag. The Committee requests the Government to provide more disaggregated information on the number of seafarers employed in the different types of ships, including the category of commercial pleasure ships. The Committee further requests the Government to provide detailed information on how the national laws, regulations or other measures which are implementing the MLC, 2006, are applied to commercial pleasure ships. The Committee notes that several Regulations exclude from their scope of application ships under 500 gross tonnage (GT), such as Regulation 5 of the Merchant Shipping (Manning of Ships) Regulations 2011, which provides in relation to manning levels that a “Safe Manning Document need not be issued for a vessel of less than 500 GT or for a pleasure vessel but such a vessel may request such a document … and may be issued with one on request”. The Committee also notes that the DMLC, Part I, indicates that smaller vessels, meaning vessels of less than 500 GT, may opt for voluntary compliance. The Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 also exclude from their scope of application ships of less than 500 GT (see Regulation 3(a)(iv)).The Committee recalls that the Convention applies to all ships as defined in Article II, paragraph 1(i), other than those excluded under paragraph 4. Article II, paragraph 5, provides flexibility in the event of doubt as to the application of the Convention to a ship or particular category of ships, since the question shall be determined by the competent authority after consultation with shipowners’ and seafarers’ organizations. Article II, paragraph 6, provides additional flexibility with respect to the application of “certain details of the Code” referred to in Article VI, paragraph 1, to ships of less than 200 GT not engaging in international voyages, under certain requirements (determination of competent authority in consultation with shipowners’ and seafarers’ organizations; subject matter dealt with differently by national legislation, collective agreements or other measures). Recalling that the Convention does not contain a general or overall exclusion of ships below a certain gross tonnage, the Committee requests the Government to indicate how it ensures that the protection afforded by the Convention is guaranteed to all seafarers working on board ships within the meaning of the Convention.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. The Committee notes that Regulation 7, paragraph 4, of the Shipping (Minimum Age at Sea and Employment of Young Persons at Sea) Regulations 2013 provides that the prohibition of employment of young persons in the types of work that are likely to jeopardize their health or safety shall not preclude the participation of young persons in such work under supervision, and as an essential part of a training course. The Committee recalls however that Standard A1.1, paragraph 4, does not allow for any exception to the prohibition of hazardous work for persons under 18 years of age. The Committee requests the Government to amend Regulation 7 of the Shipping (Minimum Age at Sea and Employment of Young Persons at Sea) Regulations 2013 in order to ensure that no exceptions are allowed to the absolute prohibition of hazardous work for young persons.

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 the Government’s indication that, at least at present, there is no public or private recruitment service authorized to operate in Bermuda. The Committee notes that Regulation 18 of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides that a shipowner shall not make use of a seafarer recruitment and placement service which is based in a country that is not a Member of the MLC, 2006. The Committee further notes that the Declaration of Maritime Labour Compliance (DMLC) Part I, provided by the Government, indicates that, in circumstances where it is necessary to use the services of seafarers from a country that has not ratified the MLC, 2006: (a) shipowners must have a written procedure for verification of standards of recruitment and placement services for the purpose of engaging seafarers; (b) the evidence of verification of standards by the shipowner must be maintained for inspection purposes by authorities; and (c) shipowners may use external vetting organizations such as recognized organizations for verification of standards of recruiting and placement services. The Committee notes however that the DMLC, Part I, does not refer to the relevant laws or regulations. The Committee requests the Government to indicate the national legal provisions giving effect to Regulation 1.4, paragraph 3, and Standard A1.4, paragraphs 9 and 10, of the Convention (recruitment and placement services based in countries in which the Convention does not apply).

Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreement. Content. The Committee notes that the sample of the Seafarers’ employment agreement provided by the Government does not mention the name and address of the shipowner and the place of birth of the seafarer among the matters that should be included in the agreement. The Committee further notes that Regulation 13 of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 does not require the Seafarers’ employment agreement to state the place of birth of the seafarer. Therefore, the Committee requests the Government to amend Regulation 13 of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 in order to include all the matters that have to be reflected in the Seafarers’ employment agreement in accordance with Standard A2.1, paragraph 4.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes the Government’s indication that the normal working hours standard is based on the minimum hours of rest requirements under the Merchant Shipping (Hours of Rest) Regulations 2011 or under any collective bargaining agreement that the Minister has authorized. The Committee notes that Regulation 4(3) of the Merchant Shipping (Seafarer’s Wages) Regulations 2013 provides that, in the case of seafarers whose employment agreement includes separate compensation for overtime work, the normal hours of work in port and at sea shall be considered to be no more than eight hours in any day for the purpose of calculating wages. The Committee recalls that, according to Standard A2.3, paragraph 3, the normal working hours’ standard for seafarers shall be based not only on an eight-hour day but also on one day of rest per week and rest on public holidays. The Committee requests the Government to indicate how it ensures that the normal working hours for seafarers are in full compliance with the requirements of Standard A2.3, paragraph 3.

Regulation 2.3 and Standard A2.3, paragraphs 6 and 13. Hours of work and hours of rest. Division of hours of rest. The Committee notes that Regulation 4(3) of the Merchant Shipping (Hours of Rest) Regulations 2011 reproduces the requirements of Standard A2.3, paragraph 6, concerning the possible division of hours of rest. It notes, however, that Bermuda Shipping Notice 2011-002, on hours of rest requirements, states that “numerous cases have been identified where crew members have had a 6-hour break and then several short breaks which total the 10 hours minimum rest, or more. This is not acceptable. There must be at least two breaks one of which is at least 6 hours and another of sufficient length to bring the total up to 10 hours. Other breaks are then in addition to the minimum.” The Committee recalls that Standard A2.3, paragraph 6, does not require “at least two breaks” but provides that “hours of rest may be divided into no more than two periods”. Noting that Regulation 4(3) of the Merchant Shipping (Hours of Rest) Regulations 2011 complies with the requirements under Standard A2.3, paragraph 6, the Committee requests the Government to amend accordingly the Bermuda Shipping Notice 2011-002 in order to fully reflect the requirements of the Convention.

Regulation 2.3 and Standard A2.3, paragraph 13. Hours of work and hours of rest. Exceptions. The Committee notes the Government’s indication that no collective agreements that permit exceptions to the established limits of Standard A2.3, paragraphs 5 and 6, have been authorized or registered by the competent authority. The Committee requests the Government to provide a copy of any authorized or registered collective agreement provisions adopted in the future that establish seafarers’ normal working hours or permit exceptions to the established limits (Standard A2.3, paragraphs 3 and 13). Finally, the Committee notes the Government’s indication that no specific provisions have been adopted concerning the hours of rest of young seafarers. The Committee requests the Government to provide further information on how due consideration has been given to Guideline B2.3.1.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. It notes that the Bermuda Shipping and Maritime Authority issued Merchant Shipping Guidance Note BMGN 2017-01 entitled “Guidance on the implementation of 2014 Amendments to MLC 2006 on Bermuda Ships” which recalls the requirements under the amended version of Regulations 2.5 and 4.2 of the Convention, provides recommendations to shipowners on a transitional period and indicates that, in order to give effect to the above amendments, changes are necessary to the existing national laws and regulations, Declaration of Maritime Labour Compliance, Parts I and II, and the Maritime Labour Certificate. The Committee draws 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 and, 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, 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 abovementioned questions, indicating in each case the applicable national provisions. The Committee requests the Government to reply to the abovementioned questions, indicating in each case the national provisions adopted in order to give full effect to Standard A2.5.2.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2(a). Repatriation. Circumstances. The Committee notes that Regulation 5 of the Merchant Shipping (Repatriation) Regulations 2013 does not provide that a seafarer shall be entitled to repatriation when the seafarer’s employment agreement is terminated by the shipowner, as required by Standard A2.5.1, paragraph 1(b). The Committee requests the Government to indicate how full effect is given to this provision of the Convention.

Regulation 2.5 and Standard A2.5.1, paragraph 3. Repatriation. Prohibition of advance payment and to recover costs. The Committee notes that according to Regulation 7, paragraphs 1 and 2, of the Merchant Shipping (Repatriation) Regulations 2013, a shipowner shall not require any seafarer to make a contribution towards the cost of repatriation at any time before, during or following the seafarer’s employment on the ship but that, notwithstanding the above, contributions towards repatriation that are agreed and fully explained in an applicable collective bargaining agreement shall be permitted. It further notes that, according to paragraph 4, where a seafarer is justifiably dismissed from employment on a ship on grounds of serious misconduct, as defined in the Merchant Shipping (Seafarer’s Employment) Regulations 2013, the shipowner may deduct from any wages due to the seafarer the costs of repatriation. In this regard, it notes that Regulation 12 of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides a list of matters justifying the termination of the seafarer’s employment agreement without notice due to serious misconduct or incompetence and adds, in its paragraph 2, that the shipowner may include additional matters that are to be regarded as serious misconduct in a seafarer’s employment agreement. The Committee recalls that under Standard A2.5.1, paragraph 3, the possibility to recover the cost of the repatriation from the seafarer, is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. In this regard, the Committee draws the Government’s attention to the fact that, while the shipowner may recover the cost of the repatriation under the limited circumstances mentioned above, this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. The Committee further considers that the definition of what is to be considered as a serious misconduct should not be left to the shipowner’s decision. In light of the above, the Committee requests the Government to indicate how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. The Committee further requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied in order for a seafarer to be found liable for serious default.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee notes that section 59 of the Maritime Shipping Act of 2002, as amended, provides that the Minister may make regulations requiring ships to which this section applies to carry such number of qualified officers of any description, qualified doctors and qualified cooks and such number of any description as may be specified in the regulations. Section 60 provides that the Minister may exempt any ship or description of ship from any requirements of regulations made under section 59. An exemption given under this section may be confined to a particular period or to one or more particular voyages. The Committee requests the Government to provide information on any exemption given under sections 59 and 60 of the Maritime Shipping Act of 2002, in particular for qualified doctors or cooks.

Regulation 3.1, paragraph 2. Accommodation and recreational facilities. Scope of application. The Committee notes that Regulation 3 of the Merchant Shipping (Seafarers Accommodation) Regulations 2013 provides that these Regulations, which are giving effect to Regulation 3.1 and Standard A3.1 of the Convention, are not applicable to vessels that are certified as complying with the Code of Practice for the Safety of Large Commercial Sailing and Motor Vessels (LY2). The Committee notes that this Code applies to a motor or sailing vessel of 24 metres in load line length and over and which, at the time, is in commercial use for sport or pleasure and carries no cargo and no more than 12 passengers. The Code only applies to vessels of less than 3,000 GT and covers also “sail training vessels”. The Committee requests the Government to ensure that Regulation 3.1 and Standard A3.1 are applied to all ships covered by the Convention.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee notes that Regulations 18, 20, 24, 25 and 28 of the Merchant Shipping (Seafarers’ Accommodation) Regulations 2013 allow the Minister, after consultation with the shipowners’ and seafarers’ organizations concerned or, where this is not possible, after consultation with the Special Tripartite Committee created under Article XIII of the Convention, to grant exemptions to ships of less than 3,000 GT concerning specific requirements of Standard A3.1, paragraph 9. The Committee requests the Government to provide information on any exemption granted by the Minister under these provisions of the Regulations. The Committee notes that section 56 of the Merchant Shipping Act of 2002, as amended, provides that, concerning the regulations adopted with respect to the crew accommodation, they may exempt ships of any description from any requirements of the regulations and the Minister may grant other exemptions from any such requirement with respect to any ship. The Committee recalls that according to Standard A3.1, paragraph 21, 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 provide detailed information on any exemption that has been granted and to indicate how it ensures that any such exemption comply with Standard A3.1, paragraph 21.

Regulation 3.1 and Standard A3.1, paragraph 6(c), (d) and (e). Accommodation and recreational facilities. General requirements. Location of sleeping rooms. The Committee notes that Regulation 4 of the Merchant Shipping (Seafarers Accommodation) Regulations 2013 implements the general requirements for accommodation (Standard A3.1, paragraph 6(a)–(f)). The Committee notes that Regulation 4(2) provides that in the case of passenger ships and special purpose ships, seafarers’ sleeping rooms may be situated below the summer load line, but if so situated, they shall not be located beneath any working alleyway. The Committee recalls that Standard A3.1, paragraph 6(d), provides that the competent authority may permit the location of sleeping rooms below the load line, but in no case immediately beneath working alleyways, in passenger ships, and in special ships “constructed in compliance with the IMO [International Maritime Organization] Code of Safety for Special Purpose Ships, 1983, and subsequent versions”, “on condition that satisfactory arrangements are made for lighting and ventilation”. The Committee requests the Government to indicate which categories of special purpose ships are covered and whether such ships are constructed in compliance with the IMO Code and to which extent arrangements have been made for lighting and ventilation.

Regulation 4.1 and Standard A4.1, paragraph 4(b). Medical care on board and ashore. Minimum requirements. Medical doctor on board. The Committee notes that Regulation 3 of the Shipping (Ship’s Doctors) Regulations 2004, as amended, provides that a Bermuda ship having 100 or more persons on board and engaged on an international voyage of more than three days or on a voyage which is more than one-and-a-half day’s sailing time from a port with adequate medical equipment, shall carry a qualified doctor. It notes, however, that Regulation 4 provides that the Minister may grant exemption from all or any of the provisions of these regulations (as may be specified in the exemption) for classes of cases or individual cases on such terms as he may so specify and may, subject to giving reasonable notice, alter or cancel any such exemption. The Committee recalls that the Convention does not allow for any exemption to the obligation to carry a medical doctor on board for this category of ships. The Committee requests the Government to indicate how it ensures that no exemptions are granted in this regard.

Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee notes that the Government’s indication that requirements under Standard A4.1, paragraph 4(d) (radio and satellite communication to ship at sea) are implemented through provision of two radio medical advice centres in the United Kingdom. The Committee requests the Government to provide further information on whether ships are required to carry appropriate equipment and maintain up-to-date contact information for radio or satellite communication to obtain onshore medical advice while on a voyage.

Regulation 4.2 and Standard A4.2, paragraph 1(c). Shipowners’ liability. Minimum standards. Expenses of medical care and board and lodging away from home. The Committee notes that Regulation 15(4) of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides that the expenses of medical care, medical treatment, medications and therapeutic appliances, as well as the cost of accommodation away from the seafarer’s place of domicile, shall be borne by the shipowner. The Committee recalls that Standard A4.2.1, paragraph 1(c), provides that shipowners shall be liable to defray “board and lodging away from home”, and not only the cost of accommodation. The Committee requests the Government to indicate how it ensures that shipowners defray the cost of food for sick or injured seafarers away from home.

Regulation 4.2 and Standard A4.2, paragraph 3. Shipowners’ liability. Incapacity. The Committee notes that Regulation 15(7) of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides that on every occasion when sickness or injury for which the shipowner is liable to pay costs occurs, the shipowner shall be liable to pay the costs set out in an applicable collective bargaining agreement or, where there is no collective bargaining agreement to pay the seafarer’s wages at the basic rate of wages in the employment agreement for as long as the seafarer remains on board the ship or until the seafarer has been repatriated in accordance with the Merchant Shipping (Repatriation) Regulations 2013; and pay wages at the basic rate in the seafarer’s employment agreement from the time when the seafarer is repatriated until the time when the seafarer has recovered. Noting that the abovementioned provision only applies when there is no collective agreement in force, the Committee requests the Government to indicate how it ensures that any relevant collective agreement include, as a minimum, the requirements of Standard A2.5.1, paragraph 3.

Regulation 4.2 and Standard A4.2, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee notes that Regulation 5 of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides that the liabilities of the shipowner shall not arise when an injury or an illness is the result of the misconduct of the seafarer. The Committee recalls that Standard A4.2.1, paragraph 5(b), provides that national laws or regulations may exclude the shipowner from liability in respect of injury or sickness due to the “wilful misconduct” of the sick, injured or deceased seafarer. The Committee requests the Government to indicate how it ensures that the cases where the shipowner’s liability may be excluded remain within the limits set out under Standard A4.2.1, paragraph 5.

Regulation 4.2 and Standard A4.2.1, paragraphs 8–14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that Regulation 15(2), (3) and (8) of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 provides that the shipowner shall be liable to provide financial security sufficient to ensure compensation to any seafarer in the event of the death or long-term disability of the seafarer as a result of an occupational illness, injury or hazard. The extent of compensation shall be set out in either an applicable collective bargaining agreement or in the seafarer’s employment agreement and shall be not less than the current terms agreed by the International Bargaining Forum. The Committee notes that the Bermuda Merchant Shipping Guidance Note BMGN 2017-01 – Guidance on implementation of 2014 Amendments to MLC 2006 on Bermuda Ships – sets out recommendations to shipowners on a transitional period and indicates that, in order to give effect to the above amendments, changes are necessary to the existing national laws and regulations, DMLC Parts I and II, and the Maritime Labour Certificate. 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. The Committee draws 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 do 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 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, 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 abovementioned questions, indicating in each case the applicable national provisions.

Regulation 4.5 and the Code. Social security. The Committee notes that, upon ratification of the Convention, the Government specified the following nine branches of social security as being provided to seafarers ordinarily resident in Bermuda: medical care; sickness benefit; unemployment benefit; old-age benefit; employment injury benefit; family benefit; maternity benefit; invalidity benefit; and survivors’ benefit. The Committee notes that according to the Government, there are no seafarers who are nationals or residents or otherwise domiciled in the territory. The Committee further notes that Regulation 14B of the Merchant Shipping (Seafarer’s Employment) Regulations 2013 adds that, from the date on which the MLC, 2006, comes into force, shipowners shall provide, as a minimum, three branches of social security protection to seafarers employed on their ships, two of which must be medical care benefit and protection from financial consequences of sickness, injury or death, occurring in connection with the seafarer’s employment, and the third can be any one of the other seven branches. The Committee notes that according to the Convention, Members shall give consideration to the various ways in which “comparable benefits” to those provided to seafarers ordinarily resident in the country can be provided to seafarers working on board the ships flying their flag (Standard A4.5, paragraph 6, of the Convention). Noting that the Merchant Shipping (Seafarer’s Employment) Regulations 2013 leave the choice of the protection to the shipowner and that no information has been given by the Government on the scope of such protection, the Committee requests the Government to provide detailed information on how full effect is given, both in law and in practice, to Regulation 4.5 and Standard A4.5.

Regulation 4.5 and Standard A4.5, paragraph 9. Social security. Fair and effective procedures for the settlement of disputes. The Committee notes that Regulation 20 of the Merchant Shipping (Seafarer’s Employment) 2013 introduced an on-board complaint procedure that may be used by any seafarer serving in the ship to file a complaint relating to any matter that is alleged to constitute a breach of the requirements of the MLC, 2006. The Committee recalls that Standard A4.5, paragraph 9, of the Convention provides that each Member shall establish fair and effective procedures for the settlement of disputes relating to social security. The Committee requests the Government to indicate if any other fair and effective procedure has been established for the settlement of disputes on social security matters.

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 Regulation 6(6)(b) of the Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 lists the reasons for which a maritime labour certificate shall cease to be valid, reproducing the requirements of Standard A5.1.3, paragraphs 14 and 15 of the Convention, except for paragraph 14(b) which provides that a certificate or interim certificate shall cease to be valid if the certificate is not endorsed following an intermediate inspection. The Committee requests the Government to indicate how it gives effect to Standard A5.3.1, paragraph 14(b).

The Committee notes that Regulation 6(7) of the Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 provides that, in case a maritime labour certificate has ceased to be valid as a consequence of substantial changes made to seafarers’ accommodation, the Minister shall issue a new certificate on verification that the ship continues to meet the requirements of the applicable regulations. The Committee recalls that Standard A5.1.3, paragraph 15, contains the same requirements concerning a maritime labour certificate that has ceased to be valid when a ship has changed flag or when a shipowner has ceased to assume the responsibility for the operation of a ship. The Committee requests the Government to indicate how it ensures that a maritime labour certificate ceases to be valid, especially when the shipowner ceases to assume responsibility for the operation of the ship.

Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that the Merchant Shipping Act, the Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 and other Regulations adopted to implement the Convention contain provisions dealing with flag State inspections. However, the Committee notes that these texts do not require that all ships within the meaning of the Convention shall be inspected every three years in accordance with the detailed requirements of Regulation 5.1.4 and Standard A5.1.4. The Committee requests the Government to indicate how effect is given to these provisions of the Convention.

Regulation 5.1.4 and Standard A5.1.4, paragraph 16. Flag State responsibilities. Inspection and enforcement. Compensation in case of wrongful exercise of the inspectors’ powers. The Committee notes the Government’s indication that compensation shall be payable in accordance with the Bermuda national laws and regulations for any loss or damage suffered as a result of the wrongful exercise of the inspector’s powers. The Committee notes, however, that the Government does not refer to the relevant laws and regulations. The Committee requests the Government to provide information on the laws and regulations which give effect to Standard A5.1.4, paragraph 16.

Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes the Government’s indication that Regulation 5.1.6 of the Convention is implemented by the Merchant Shipping (Formal Investigations & Inquiries) Regulations 1984, as amended. The Committee requests the Government to provide an up-to-date copy of these Regulations and to indicate how full effect is given to Regulation 5.1.6.

Regulation 5.2.1 and the Code. Port State responsibilities. Inspections in port. The Committee notes the Government’s indication that every foreign ship calling in a port in Bermuda in the normal course of business or for operational reasons may be the subject of inspection under Regulation 5.2.1 of the MLC, 2006, for the purpose of reviewing compliance with the relevant provisions of the Convention. The Committee notes that Regulation 13 of the Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 provides a framework to the inspection of foreign ships in Bermuda waters without giving full effect to the specific requirements contained in Regulation 5.2.1, paragraph 2, and Standard A5.2.1. The Committee requests the Government to provide detailed information on any measures adopted or envisaged to give full effect to Regulation 5.2.1 and to Standard A5.2.1 of the Convention.

Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes that Regulation 14 of the Merchant Shipping (Inspections of Ships and Issue of Maritime Labour Certificates) Regulations 2013 provides that the Department of Maritime Administration shall be the competent authority in Bermuda for handling complaints by a seafarer in Bermuda ports and that a documented procedure shall be established for handling seafarer complaints. The Committee requests the Government to indicate if a documented procedure for handling seafarer complaints has been established and, if so, to provide detailed information thereon.

Additional documentation requested. The Committee requests the Government to provide the following documents and information: several examples of Part II of the DMLC accepted by the competent authority; an example of the approved document for seafarers’ record of employment and a standard form example of a seafarers’ employment agreement (Standard A2.1, paragraphs 1–3); a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the provisions on seafarers’ entitlement to repatriation in any applicable collective bargaining agreement (Standard A2.5.1, paragraph 2); for each type of ship (passenger, cargo, etc.), a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it; examples of a document (for example Part II of the DMLC) outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment (Regulation 5.1.1); an example or examples of authorizations given to recognized organizations (Regulation 5.1.1, paragraph 5; Regulation 5.1.2, paragraph 2); a copy of the national interim maritime labour certificate (Standard A5.1.3, paragraph 5); a copy of the annual reports on inspection activities; a standard document issued to or signed by inspectors setting out their functions and powers; a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (Standard A5.1.4, paragraphs 5, 7 and 13); a copy of the model for on-board complaint procedures, if developed, or of typical procedures that are followed on ships that fly your country’s flag (Regulation 5.1.5); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7.

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