DRAFT - 21 NOVEMBER 2012
MARINE GUIDANCE NOTE
MGNXXX ()
Maritime Labour Convention, 2006:Revised Repatriation Requirements arising from the Merchant Shipping (Maritime Labour Convention) (Repatriation) Regulations 201X
Notice to all Owners, Operators and Charterers of all Ships, Yachts and Other Vessels on which seafarers are required to be employed under a Seafarer's Employment Agreement as well as all employersof such seafarers
This Notice does not apply to fishing vessels and certain other categories of vessel.
DRAFT - 21 NOVEMBER 2012
DRAFT - 21 NOVEMBER2012
PLEASE NOTE:-
Where this document provides guidance on the law it should not be regarded as definitive. The way the law applies to any particular case can vary according to circumstances - for example, from vessel to vessel and you should consider seeking independent legal advice if you are unsure of your own legal position.
Summary
This Note provides information on the new repatriation requirements which are contained in the Merchant Shipping (Repatriation) Regulations 201*which implement in part the International Labour Organization Maritime Labour Convention 2006. These Regulations revoke and replace the Merchant Shipping (Repatriation) Regulations 1979in respect of merchantships, yachts, and other commercially operated vessels with paid crew.The new Regulations do not however apply to vessels used purely for pleasure purposes, naval auxiliaries and fishing vessels. Such vessels will however remain subject to the provisions of the Merchant Shipping (Repatriation) Regulations 1979.- INTRODUCTION
1.1The Merchant Shipping (Repatriation) Regulations 201X(the “Repatriation Regulations201X”] which come into effect on ...... 201Xgive effect to the provisions of Regulation 2.5, Standard A2.5 and (where applicable) Guideline B2.5 of the International Labour Organisation (ILO) Maritime Labour Convention, 2006.
1.2The Repatriation Regulations201Xrequire that each seafarer employed on a UK registered ship (other than those specifically exempted by the Repatriation Regulations 201X) shall be entitled to be repatriated at no cost to themselves in the circumstances and under certainconditions,which are set out in this MGN. In addition, owners of ships registered in the UK are required to provide financial security covering their duties to ensure that seafarers employed on those ships are duly repatriated in accordance with the provisions set out in this MGN.
2.APPLICATION
2.1The Repatriation Regulations201Xapply to all “seafarers” on UK registered ships, yachts and other vessels, operating commercially. “Seafarers” in this context means any persons who are employed or engaged or who work in any capacity on board any vessel covered by the Repatriation Regulations201X. The Repatriation Regulations201Xdo not apply to the following categories of vessels:-
(a) pleasure vessels, (see Note below)
(b)fishing vessels,(see Note below)
(c)ships of traditional build,(see Note below)
(d) warships or naval auxiliaries, and(see Note below)
Note - It should be noted that the Merchant Shipping (Repatriation) Regulations 1979 (SI 1979/97) will remain in force for vessels excluded from the Repatriation Regulations 201X which are currently subject to the 1979 regulations.
3.ENTITLEMENT TO REPATRIATION
3.1 Seafarers on UK registered ships are entitled to repatriation in the following circumstances:
(a) if their Seafarers’ Employment Agreementexpires while they are outside the United Kingdom in the case of a UK domiciled seafarer or outside their country of domicile in the case of a non-UK domiciled seafarer; or
(b) when their seafarers’ employment agreement is terminated:
(i) by the shipowner; or
(ii) by the seafarer himself upon the giving of the appropriate notice required by the seafarer’s individual Seafarer’s Employment Agreement
(c) when the seafarer is no longer able to carry out his duties under his SeafarerEmployment Agreement or similar document, or cannot be expected to carry them out in the specific circumstances.
3.2 The circumstances in paragraphs 3.1(b) and (c) are designed to include the following situations:
(a)illness or injury or other medical condition affecting the seafarer which requires their repatriation when found medically fit to travel, or for any other reason;
(b) in the event of shipwreck;
(c) in the event of the shipowner not being able to continue to fulfil their legal or contractual obligations as an employer of the seafarers by reason of insolvency, sale of ship, change of ship’s registration or any other similar reason;
(d) in the event of a ship being bound for a war zone to which the seafarer does not consent to go.In this context, what constitutes a “war zone” may be defined in the seafarer’s Seafarer Employment Agreement or by the Warlike Operations Area Committee.
3.3.Paragraph2(b) of Standard A2.5 of the MLC requires that legislation be in place prescribing the maximum duration of service periods on board following which a seafarer is entitled to repatriation - Such periods to be less than 12 months. This is addressed by regulation 8(7) of the Repatriation Regulations, which provides that repatriation shall follow the expiry of the maximum service period set out in the seafarer’s SEA. Such maximum service period shall be not more than 365 days minus the 30 days statutory paid leave, and 8 additional days in respect of public holidays, required to be provided to seafarers by the Merchant Shipping (Hours of Work) Regulations 2002 (the “2002 Regulations”) (as amended) or any amended periods of leave introduced by Regulations which subsequently further amend or replace the 2002 Regulations (as currently amended). Currently the maximum period of service permitted is 327 days per annum but this should not be regarded as a standard period of service and shipowners should accordingly seek, wherever possible, to repatriate seafarers for leave at lesser intervals.
3.4.Time spent awaiting repatriation and repatriation travel time should not be deducted from paid leave accrued by the seafarer.
4.EXCEPTION TO THE DUTY TO REPATRIATEAT THE SHIPOWNER’SEXPENSE
4.1Where a seafarer is in breach of his obligations under his Seafarer Employment Agreement (SEA), and his employment is terminated on disciplinary grounds as a result,the seafarer’s entitlement to repatriation at the shipowner’s expense shall cease and, provided that the seafarer’s SEA so states, the shipowner may recover, by deduction from the wages due to the seafarer, the full cost of repatriation, together with any relief and maintenance costs. Where such a provision is not included in the SEA, the shipowner may only recover damages in respect of repatriation, relief and maintenance costs.
4.2.The obligation of a shipowner to repatriate a seafarer at the shipowner’s expense shall also cease in the following circumstances:-
(a)where the seafarer fails without reasonable cause to comply with any reasonable arrangement for his repatriation;
(b)where a seafarer informs the shipowner in writing that he does not wish to be repatriated by him;
(c)where, for a period of more than 3 months, the whereabouts of a seafarer left behind are not known to the shipowner.
(d)where the seaman has died.
4.3Where, in accordance with paragraph 3.2(d) the obligation of a shipowner to repatriate a seafarer at the shipowner’s expense has ceased as a result of the death of the seafarer, regulation 10(1) of the Merchant Shipping (Maritime Labour Convention) (Shipowners’ Liabilities) Regulations 201Xrequires a shipowner to meet any expenses reasonably incurred in connection with the seafarer’s burial or cremation. Should the shipowner fail to meet such expenses the estate of the shipowner may recover any sums due from the shipowner as a civil debt.
4.4Subject to the shipowner bearing the cost of the funeral/cremation, there is nothing to prevent a shipowner from returning the seafarer’s body to his/her next of kin where it is feasibleto do so and it is acceptable to the relevant authorities in the countries concerned for such return to take place.
5.PLACE FOR RETURN
5.1The repatriation destination for a seafarer employed on a United Kingdom registered ship must be specified in the Seafarer Employment Agreement.This should normally be one of the following:-
(a)the place at which the seafarer agreed to enter into his engagement;
(b)a place agreed between the seafarer and the shipowner
(c) the seafarer’s country of residence.
Irrespective of which destination is specified in the SEA, MCA would recommend that the shipowner should verify that theseafarer has a right to be repatriated to that destination. Failure to do so could result in the shipowner incurring additional expenditure if admission of the seafarer is refused by the authorities of the territory concerned.
5.2.Notwithstanding the provisions of paragraph 5.1 above the seafarer and the shipowner may mutually agree at the time of termination of the seafarer’s employment or the expiration of a duty period, that the seafarer be repatriated to a destination other than that specified in the Seafarer Employment Agreement.
6.MODE OF TRANSPORT
6.1Paragraph 11 of Part I of Schedule 1 to the Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement) Regulations 201x requires the mode of transport for the repatriation of a seafarer employed on a United Kingdom registered ship to be specified in the SEA. However, whilst paragraph 6 of Guideline B2.5.1 of the MLC suggests that the normal mode of transport for repatriation should be air, this is a matter for agreement between the shipowner and the seafarer and there is nothing to prevent a seafarer being repatriated by other means e.g. by road, rail or sea where air travel is not readily available or road, rail or sea travel is more expeditious or is necessary for some or all of the journey. Equally the circumstances justifying repatriationmay render air travel inadvisable or inappropriate e.g. a seafarer having suffered an injury or illness might not be medically fit to undertake air travel.
7.ITEMS OF EXPENSE TO BE BORNE BY THE SHIP OWNER
7.1The items of expense to be borne by the ship owner when a seafarer is repatriated shall include:-
(a)the full cost of repatriating a seafarer entitled to repatriation under the Repatriation Regulations 201Xto the appropriate destination;
(b)the provision of relief and maintenance both whilst the seafarer awaits repatriation and during repatriation. Such relief and maintenance shall include:-
(i)the provision of food and accommodation
(ii)the provision of clothing;
(iii)the provision of toilet and other personal necessities;
(iv)in cases where the seafarer is not entitled to legal aid, or legal aid is insufficient, reasonable costs for the defence of the seafarer in any criminal proceedings in respect of any act or omission within the scope of his employment, being proceedings where the shipowner is not a party to the prosecution;
(v) sufficient money to meet any minor ancillary expenses necessarily incurred or likely to be so incurred by the seaman for his relief and maintenance;
7.2Other expenses to be borne by the shipowner under other regulations
7.2.1In addition to the costs of repatriation set out in the preceding paragraph, the shipowner is responsible for the following:-
(a)costs incurred in bringing a shipwrecked seafarer ashore, and maintaining him until he is repatriated; and,
(b)the payment of the expenses of the burial or cremation of any seafarer who dies before he can be repatriated.
(c)payment of wages and allowances for the period between a seafarer leaving a ship until they reach the repatriation destination.
(d)any other expenses which the shipowner is obliged to meet, as set out in the Seafarer Employment Agreement or any related Collective Bargaining Agreement or relevant legislation;
7.3.Transportation of Personal Luggage
7.3.1It is recommended that a shipowner should bear the cost of transporting a minimum of 30 kg of the seafarer’s personal luggage to the repatriation destination.
8.PROHIBITION OF REQUIREMENT FOR ADVANCE PAYMENTS TOWARDS COST OF REPATRIATION OR, EXCEPT IN CERTAIN CIRCUMSTANCES, RECOVERY OF COST OF REPATRIATION
8.1The shipowner may not require any seafarer employed on a UK registered ship to make an advance payment towards the cost of repatriation at the beginning of their employment.
8.2The shipowner may also not recover the cost of repatriation from any seafarer’s wages or other entitlements except where the seafarer has been foundto be in serious default of his obligations under his Seafarer’s Employment Agreement. (See paragraph 4.1 above).
9.RECOVERY OF COST OF REPATRIATION FROM A THIRD PARTY
9.1Nothing in the Repatriation Regulations 2013 is intended toprejudice any right of the shipowner to recover the cost of repatriation from any other party, other than the seafarer except in disciplinary cases, under third-party contractual arrangements.
10.CARRIAGE OF COPY OF UK PROVISIONS REGARDING REPATRIATION
10.1. Every UK registered ship is required to carry and make available to seafarers working thereon a copy of the Repatriation Regulations 201Xand this MGN. Where the working language used on board is not English and English is not understood by one of more of the seafarers on board, the shipowner is required to provide a copy or copies of the Repatriation Regulations 201Xand this MGN translated into such language or languages as are understood by the seafarersconcerned to ensure that suchinformation is available to them.
11.YOUNG SEAFARERS
11.1Where young seafarers under the age of 18 have served on a ship for at least four months during their first foreign-going voyage, and it has become apparent that they are unsuited to life at sea, the shipowner should consider giving them the opportunity of being repatriated at no expense to themselves from the first suitable port of call in which there are consular services of the UK or the seafarer’s State of nationality or residence. Notification of any such repatriation, with the reasons therefore, should be provided to the manning agent, training provider or (where applicable) any national authority which issued the documentation which enabled the young seafarer to take up seagoing employment.
DRAFT - 21 NOVEMBER 2012
DRAFT - 21 NOVEMBER2012
12.MORE INFORMATION
12.1Seafarer Safety & Health Branch
Maritime and Coastguard Agency
Bay 1/29
Spring Place
105 Commercial Road
Southampton
SO15 1EG
Tel :+44 (0) 23 8032 9246
Fax : +44 (0) 23 8032 9251
e-mail:
General Inquiries:24 Hour Infoline
0870 600 6505
MCA Website Address:
File Ref:Insert MCA File Reference
Published:Printers to Insert [Month Year]
© Crown Copyright 201X
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DRAFT - 21 NOVEMBER 2012