I ASSENT Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (MARITIME LABOUR
CONVENTION) REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-13 Subsidiary 2013/120
Subsidiary Legislation made under s. 118 of the Gibraltar Merchant
Shipping (Safety, etc.) Act, 1993, and section 23(g) of the Interpretation and
General Clauses Act.
GIBRALTAR MERCHANT SHIPPING (MARITIME
LABOUR CONVENTION) REGULATIONS 2013
(LN. 2013/120)
Commencement 20.8.2013
Amending
enactments
Relevant current
provisions
Commencement
date
LN. 2014/159 Corrigenda
2015/051 rr. 43A – 43E 31.3.2015
Transposing:
Directive 1999/63/EC
Directive 2009/13/EC
Directive 2013/54/EU
EU Legislation/International Agreements involved:
European Community Shipowners’ Associations (ECSA) and the European
Transport Workers’ Federation (ETF) on the Maritime Labour Convention,
2006
_______________________
Regulations
PART 1: PRELIMINARY AND GENERAL APPLICATION
1. Title and commencement.
2. Interpretation.
3. Application.
PART II: MINIMUM REQUIREMENTS FOR SEAFARERS TO
WORK ON A SHIP
4. Minimum age for seafarers on Gibraltar, etc. ships.
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (MARITIME LABOUR
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5. Minimum age for seafarers on MLC ships.
6. Medical certificates for seafarers.
7. Health assessments for seafarers.
8. Training and qualifications.
9. Recruitment and placement.
10. Regulation of seafarer recruitment services.
PART III: CONDITIONS OF SEAFARERS’ EMPLOYMENT
11. Seafarers’ employment agreements.
12. Early termination of seafarers’ employment agreements.
13. Documentation relating to seafarer’s employment agreements.
14. Seafarers’ wages.
15. Hours of work and rest on Gibraltar ships.
16. Hours of work and rest on MLC and other ships.
17. Documentation of seafarer’s hours of work.
18. Seafarers’ entitlement to leave.
19. Seafarers’ right to repatriation.
20. Seafarer compensation for a ship’s loss or foundering.
21. Manning levels.
22. Career and skill development and opportunities for seafarers’
employment.
PART IV: ACCOMMODATION, FOOD AND CATERING
23. Crew accommodation on Gibraltar, etc. ships.
24. Crew accommodation: exemptions and equivalences.
25. Crew accommodation on MLC ships.
26. Food and catering on Gibraltar, etc. ships.
27. Food and catering on MLC ships.
PART V: HEALTH PROTECTION, MEDICAL CARE,
WELFARE AND SOCIAL SECURITY PROTECTION
28. Medical care on board ship and ashore.
29. Shipowners’ liability.
30. Health and safety protection and accident prevention.
31. Access to shore-based welfare facilities.
32. Social security.
PART VI: INSPECTION AND CERTIFICATION
33. Inspection of Gibraltar ships.
34. Issue of Maritime Labour Certificates to Gibraltar ships.
35. Inspection and certification of Gibraltar ships by Governments of
other States.
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36. Interim Maritime Labour Certificates for Gibraltar ships.
37. Survey and Certification of non-Gibraltar ships by the Maritime
Administrator.
38. Duration and validity of Maritime Labour Certificates.
39. Declaration of Maritime Labour Compliance.
40. Appeals.
41. Documents to be carried on board and made available.
42. On-board and on-shore complaint procedure.
43. Documentation and complaint procedure for MLC ships.
PART VIA
43A Subject matter of Part VIA.
43B. Interpretation of Part.
43C. Monitoring of compliance.
43D. Personnel in charge of compliance monitoring.
43E. On-board complaint procedures, handling of complaints and
corrective measures.
PART VII: COMPLIANCE AND ENFORCEMENT
44. Inspection and detention of Gibraltar ships.
45. Inspection and detention of MLC ships.
46. Offences and penalties.
47. Consequential amendment.
SCHEDULE
Medical Certificates
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (MARITIME LABOUR
CONVENTION) REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-13 Subsidiary 2013/120
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (MARITIME LABOUR
CONVENTION) REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-13 Subsidiary 2013/120
In exercise of its powers under section 118 of the Gibraltar Merchant
Shipping (Safety, etc.) Act, 1993, and section 23(g) of the Interpretation and
General Clauses Act, and for the purpose of transposing into the law of
Gibraltar Council Directive 1999/63/EC of 21 June 1999 concerning the
Agreement on the organisation of working time of seafarers concluded by
the European Community Shipowners’ Association (ECSA) and the
Federation of Transport Workers’ Unions in the European Union (FST);
and Council Directive 2009/13/EC of 16 February 2009 implementing the
Agreement concluded by the European Community Shipowners’
Associations (ECSA) and the European Transport Workers’ Federation
(ETF) on the Maritime Labour Convention, 2006, and amending Directive
1999/63/EC, and all other enabling powers, the Government has made the
following Regulations−
PART 1
PRELIMINARY AND GENERAL APPLICATION
Title and commencement.
1. These Regulations may be cited as the Gibraltar Merchant Shipping
(Maritime Labour Convention) Regulations 2013 and come into operation
on 20 August 2013.
Interpretation.
2.(1) In these Regulations−
“British Gibraltar Territorial Waters” means the area of sea, the sea bed
and subsoil within the seaward limits of the territorial sea adjacent
to Gibraltar under British sovereignty and which, in accordance
with the United Nations Convention on the Law of the Sea 1982,
currently extends to three nautical miles and to the median line in
the Bay of Gibraltar;
“Captain of the Port” means the person appointed to be the Captain of the
Port under section 4 of the Port Act and includes any person
appointed by the Government to act in the place of the Captain of
the Port;
“certifying authority” means the Maritime Administrator and, if
authorised by the Maritime Administrator, Lloyd’s Register of
Shipping, Bureau Veritas, Det Norske Veritas, Germanischer
Lloyd, American Bureau of Shipping, Registro Italiano Navale, and
Class NK;
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“collective agreement” means any agreement or arrangement made by or
on behalf of one or more trade unions and one or more employers
or employers’ associations and relating to one or more of the
following matters–
(a) terms and conditions of employment, or the physical conditions
in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension
of employment or the duties of employment, of one or more
workers;
(c) allocation of work or the duties of employment between
workers or group of workers;
(d) matters of discipline;
(e) a worker’s membership or non-membership of a trade union;
(f) facilities for official trade unions;
(g) machinery for negotiation or consultation, and other
procedures, relating to any of the above matters, including the
recognition by employers or employers’ associations of the
right of a trade union to represent workers in such negotiation
or consultation or in the carrying out of such procedures;
“constructed” in relation to a ship means−
(a) the date on which its keel is laid; or
(b) the stage at which construction identifiable with a specific ship
begins and assembly has commenced comprising at least 50
tonnes or one per cent of the estimated mass of all structural
material, whichever is less;
“crew accommodation” means accommodation, including the
construction, machinery, fittings and equipment of that
accommodation intended for or used by seafarers;
“Gibraltar ship” means a ship registered under the provisions of the
Gibraltar Merchant Shipping (Registration) Act 1993;
“gross tonnage” means–
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(a) the gross tonnage calculated in accordance with the tonnage
measurement regulations contained in Annex I to the
International Convention on Tonnage Measurement of Ships,
1969, or any successor Convention; or
(b) in the case of a ship covered by the tonnage measurement
interim scheme adopted by the International Maritime
Organisation, the gross tonnage included in the REMARKS
column of the International Tonnage Certificate (1969);
“hours of work” means time during which a seafarer is required to do
work on account of the ship and “hours of rest” means time outside
hours of work, excluding short breaks;
“Maritime Administrator” means the person appointed under section 3 of
the Merchant Shipping (Safety, etc.) Act, 1993, or a suitably
qualified member of the maritime administrator’s staff;
“Member State” means any State within the European Economic Area;
“Member State ship” means a ship, other than a Gibraltar ship, which is
registered in and flying the flag of a Member State;
“MLC” means the Maritime Labour Convention, 2006 adopted on 23
February 2006 by the General Conference of the International
Labour Organisation;
“MLC State” means a State which is a Party to the MLC and in which
the MLC has come into force, other than the United Kingdom
extending the MLC to Gibraltar;
“MLC ship” means a ship, other than a Gibraltar ship, which−
(a) is registered in an MLC State;
(b) is flying the flag of that State; and
(c) carries a Maritime Labour Certificate to which a Declaration of
Maritime Labour Compliance is attached or an interim
Maritime Labour Certificate;
“port” and “port of Gibraltar” have the meanings given to them by the
Port Act;
“seafarer” means–
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(a) any person, including a master, who is employed or engaged or
works in any capacity on board a ship; and
(b) in relation to a ship which is not a Gibraltar ship or an MLC
flag ship, includes any person on board that ship who is in a
category of persons considered by the competent authority of
the flag State of that ship to be a seafarer;
“seafarer recruitment service” means–
(a) a business–
(i) whose primary purpose is the recruitment and placement
of seafarers, or
(ii) which recruits and places a significant number of
seafarers; or
(b) a public service which recruits and places seafarers and which
is operated in an orderly manner that protects and promotes
seafarers’ employment rights as provided in the MLC;
“seafarers’ employment agreement” means a clear, written, legally
enforceable document, including either a contract of employment
or articles of agreement, which−
(a) is signed by the seafarer after that seafarer has been given−
(i) an opportunity to examine and seek advice on the
agreement, and
(ii) such other facilities as are necessary to ensure that that
seafarer has freely entered into the agreement with a
sufficient understanding of that seafarers’ rights and
responsibilities;
(b) is signed by the shipowner or by a representative of the
shipowner;
(c) contains, as a minimum, the following particulars−
(i) the seafarer’s full name, date of birth or age, and
birthplace,
(ii) the shipowner’s name and address,
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (MARITIME LABOUR
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(iii) the place where and date when the seafarers’
employment agreement is entered into,
(iv) the capacity in which the seafarer is to be employed,
(v) the amount of the seafarer’s wages or, where applicable,
the formula used for calculating that amount,
(vi) the amount of paid annual leave or, where applicable, the
formula used for calculating it,
(vii) provisions for termination of the agreement and the
conditions thereof, including−
(aa) if the agreement has been made for an
indefinite period, the conditions entitling
either party to terminate it, as well as the
required notice period, which must not be less
for the shipowner than for the seafarer,
(bb) if the agreement has been made for a definite
period, the date fixed for its expiry, and
(cc) if the agreement has been made for a voyage,
the port of destination and the time which has
to expire after arrival before the seafarer
should be discharged,
(viii) the health and social security protection benefits to be
provided to the seafarer by the shipowner, and
(ix) the seafarer’s entitlement to repatriation;
(d) incorporates by reference any collective agreement or
workforce agreement applicable to the agreement; and
(e) in relation to–
(i) an MLC ship, contains any other provisions required by
the MLC State whose flag that ship flies, and
(ii) any other ship, contains any other provisions as
determined by the Maritime Administrator;
“seafarers’ employment record” means a document which−
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(a) contains a record of the seafarer’s employment on board the
ship;
(b) does not contain any statements as to the quality of the
seafarer’s work or as to the seafarer’s wages;
(c) if the ship is an MLC ship, is in the form determined by the
MLC State whose flag that ship flies and contains the
particulars determined by that MLC State entered in the
manner determined by that MLC State;
(d) if the ship is any other ship, is in the form determined by the
Maritime Administrator and contains the particulars
determined by the Maritime Administrator entered in the
manner determined by the Maritime Administrator;
“ship” means any ship ordinarily engaged in commercial activities, other
than–
(a) a ship which navigates exclusively in inland waters or waters
within, or closely adjacent to, sheltered waters or areas where
port regulations apply;
(b) a ship engaged in fishing or in similar pursuits;
(c) a ship of traditional build such as a dhow or junk;
(d) a warship;
(e) a naval auxiliary;
“shipowner” means–
(a) in relation to a ship which has a valid Maritime Labour
Certificate or valid interim Maritime Labour Certificate, the
person identified as the shipowner on that Certificate;
(b) in relation to any other ship, the owner of the ship or, if
different, any other organisation or person such as the manager,
agent or bareboat charterer, who has assumed the responsibility
for the operation of the ship from the owner, and in this
definition “responsibility for the operation of the ship” includes
the duties and responsibilities imposed on shipowners in
accordance with the Agreements forming the Annexes to
Directive 1999/63/EC and Directive 2009/13/EC;
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“STCW” means the International Convention of Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, as amended;
“workforce agreement” means an agreement between an employer and
his employees or their representatives in respect of which the
conditions set out in the Schedule to these Regulations are satisfied.
(2) A determination, exemption, exception or approval made or
authorisation or permission given by the Maritime Administrator in
accordance with these Regulations−
(a) is valid only if given in writing;
(b) may be given subject to such conditions and limitations as the
Maritime Administrator may specify; and
(c) may be altered or cancelled by the Maritime Administrator
giving written notice.
Application.
3.(1) These Regulations apply–
(a) to a Gibraltar ship wherever it is;
(b) to any other ship which is in Gibraltar waters and which is–
(i) in the Port of Gibraltar,
(ii) at an offshore installation, or
(iii) anchored off the port or such an installation;
(c) as respects a seafarer on a ship referred to in paragraph (a) or
(b);
(d) to a seafarer recruitment organisation operating in Gibraltar.
(2) In the event of doubt, the Maritime Administrator−
(a) having taken account of the Resolution of the 94th (Maritime)
Session of the General Conference of the International Labour
Organisation concerning information on occupational groups;
and
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(b) having consulted relevant shipowners’ and seafarers’
organisations;
may determine whether or not any categories of persons on board a
Gibraltar ship or other ship which is not an MLC ship are to be regarded as
seafarers to which these Regulations apply.
(3) In the event of doubt, the Maritime Administrator, having consulted
relevant shipowners’ and seafarers’ organisations, may determine whether
or not any Gibraltar ship or other ship which is not an MLC ship, or a
particular category of ships which are Gibraltar ships or not MLC ships, is a
ship or category of ships to which these Regulations apply.
(4) Where the Maritime Administrator is satisfied, having consulted
relevant shipowners’ and seafarers’ organisations, that with respect to a
Gibraltar ship, or particular categories of Gibraltar ship, of less than 200
gross tonnage not engaged in international voyages it would not be
reasonable or practicable to apply requirements of these Regulations which
relate to Part A of the Code of the MLC, he may determine the different
provisions which apply to that ship or those ships.
(5) A determination made by the Maritime Administrator under
subregulation (4) must be communicated to the Director-General of the
International Labour Office, who must notify the Members of the
International Maritime Organisation.
(6) As respects a particular Gibraltar ship, or Gibraltar ships of a particular
description, the Maritime Administrator may, in the circumstances set out in
Article VI of the MLC, approve requirements which, when taken together
with the conditions and limitations to which the approval is subject, the
Maritime Administrator considers are substantially equivalent to
requirements of these Regulations.
PART II
MINIMUM REQUIREMENTS FOR SEAFARERS
TO WORK ON A SHIP
Minimum age for seafarers on Gibraltar, etc. ships.
4.(1) The shipowner, the master and the employer of a seafarer on a ship
other than an MLC flag ship must ensure that−
(a) no person below the age of 16 is employed, engaged or works
on board a ship;
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(b) no person below the age of 18 is employed, engaged or works
at night on board a ship;
(c) no person below the age of 18 is employed, engaged or works
on board a ship on work which is likely to jeopardise their
health or safety.
(2) In subregulation (1) “night” means a period which–
(a) has a duration of not less than 9 consecutive hours; and
(b) includes the period between midnight and 5 a.m.
(3) The Maritime Administrator may as respects any seafarer or
description of seafarers, make an exception to the prohibition on night work
on a ship where, in his opinion–
(a) the effective training of the seafarers concerned, in accordance
with established programmes and schedules, would be
impaired; or
(b) the specific nature of the duty or a recognised training
programme requires that seafarers under the age of 18 perform
duties at night and the Maritime Administrator determines,
after consultation with relevant shipowners’ and seafarers’
organisations, that the work will not be detrimental to their
health or well-being.
(4) An exception under subregulation (3) may be altered or cancelled by
the Maritime Administrator only after giving written notice to the shipowner
and the seafarer.
(5) The Maritime Administrator, in accordance with relevant international
standards and having consulted shipowners’ and seafarers’ organisations,
may determine whether a type of work is or is not likely to jeopardize the
health and safety of seafarers below the age of 18.
(6) The Maritime Administrator may alter or cancel a determination under
subregulation (5) only after having consulted shipowners’ and seafarers’
organisations.
Minimum age for seafarers on MLC ships.
5. The shipowner, the master and the employer of a seafarer on−
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(a) an MLC ship which is a Member State ship must ensure that
the requirements of Clauses 3 to 9 and 11 of the Agreement
forming the Annex to Directive 1999/63/EC, as transposed into
the law of that Member State, are complied with as respects
that seafarer;
(b) an MLC ship other than a Member State ship must ensure that
the requirements of Regulation 1.1 and Standard A1.1 of the
MLC as applied to that ship by its flag State are complied with
as respects that seafarer.
Medical Certificates for seafarers.
6.(1) Subject to subregulations (3) and (4), no person may begin or
continue work as a seafarer on a ship unless that person holds a valid
medical certificate for the duties the seafarer is to carry out at sea.
(2) Subject to subregulations (3) and (4), the shipowner, the master and
the employer of a seafarer on a ship must ensure that a seafarer holds a valid
medical certificate for the duties the seafarer is to carry out at sea.
(3) In urgent cases, if a person on a ship–
(a) does not hold a valid medical certificate; but
(b) has held a medical certificate for a period of not less than 24
months (or in the case of a person under 18 years at the date of
issue of the certificate, 12 months) and that certificate has
expired no earlier than one month before the date on which that
person joined that ship,
the Maritime Administrator may grant permission for that person to work as
a seafarer on that ship until the first port of call at which it is possible for an
application for a medical certificate as respects that person to be made and
for that person to be examined by a medical practitioner (or, in the case of a
medical certificate solely concerning eyesight, by a person recognized by
the competent authority of an MLC State as qualified to issue such a
certificate), provided that the period of working without a medical
certificate does not exceed three months.
(4) A permission under subregulation (3) may not be altered or cancelled.
(5) A seafarer whose medical certificate has expired during the course of a
voyage may continue to work on board that ship as though that certificate
continued in force until–
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(a) the first port of call at which it is possible for the seafarer to
make an application for a medical certificate and be examined
by a duly qualified medical practitioner (or, in the case of a
medical certificate solely concerning eyesight, by a person
recognized by the competent authority of an MLC flag State as
qualified to issue such a certificate); or
(b) the expiry of three months starting on the date of expiry of the
certificate;
whichever is the sooner.
(6) In this regulation–
“medical certificate” means–
(a) a medical certificate issued in accordance with−
(i) the Schedule to these Regulations, or
(ii) Administrative Instruction No. STCW 11 made under
section 3(5) of the Gibraltar Merchant Shipping (Safety,
etc.) Act 1993 on 29th July 2004 or any revision or
replacement of that Administrative Instruction from time
to time in force;
(b) a medical certificate issued–
(i) as respects a seafarer on a Gibraltar ship or Member
State ship, in accordance with the requirements of Clause
13 of the Agreement forming the Annex to Council
Directive 1999/63/EC,
(ii) as respects a seafarer on any other ship, in accordance
with Regulation 1.2 and Standard A1.2 of the MLC as
transposed into the law of a State Party to the MLC, a
medical certificate issued in accordance with the
requirements of STCW; or
(c) in the case of a seafarer not covered by STCW, a medical
certificate meeting the substance of the requirements of
STCW;
“valid” in relation to a medical certificate means that–
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(a) the medical certificate has been issued to the seafarer in
accordance with the provisions applicable to its being issued;
(b) the medical certificate is within its period of validity and has
not been cancelled, suspended or otherwise withdrawn by the
competent authority which issued the certificate; and
(c) the work being performed by the seafarer is within any
restriction, condition or limitation of that person’s medical
certificate.
Health Assessments for seafarers.
7.(1) The shipowner and the employer of a seafarer on a Gibraltar ship or
Member State ship must ensure that the seafarer has regular health
assessments which are free to the seafarer and which comply with medical
confidentiality.
(2) If–
(a) a medical practitioner has certified that a seafarer engaged on
watchkeeping duties on a Gibraltar ship or Member State ship
is suffering from health problems which the practitioner
considers to be due to the fact that the seafarer performs work
during the night;
(b) the certification has been provided, by the seafarer or with his
permission, to the shipowner, the master or the seafarer’s
employer; and
(c) it is possible for the seafarer to be transferred to work–
(i) to which the seafarer is suited, and
(ii) which is to be undertaken during periods such that the
seafarer will cease to perform work during the night,
the shipowner, the master and the employer must ensure that the seafarer is
transferred to that work.
Training and qualifications.
8.(1) No person may work as a seafarer on board a ship unless that person–
(a) is trained, certified as competent or otherwise qualified to
perform their duties on the ship; and
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(b) has successfully completed training for personal safety on
board ship.
(2) The shipowner, the master and the employer of a seafarer on a ship
must ensure that a seafarer–
(a) is trained, certified as competent or otherwise qualified to
perform their duties on the ship; and
(b) has successfully completed training for personal safety on
board ship.
(3) Training and certification which must be considered as meeting the
requirements of this provision is−
(a) training and certification which is in accordance with
mandatory instruments on training and certification of seafarers
adopted by the IMO;
(b) if−
(i) the IMO has not adopted mandatory instruments on
training and certification of seafarers, and
(ii) the period of 5 years starting on the date on which the
MLC enters into force has not elapsed,
training and certification which meets the obligations of the certification
of Able Seamen Convention, 1946.
Recruitment and placement.
9.(1) A person who is finding a seafarer to employ on a Gibraltar ship must
use–
(a) a seafarer recruitment service operating in the territory of an
MLC State;
(b) a seafarer recruitment service which is not operating in the
territory of an MLC State but which the shipowner or employer
has ensured complies with the requirements of Regulation 1.4
and Standard A1.4 of the MLC;
(c) if the organisation is being used to supply seafarers who are
Gibraltar nationals to the shipowner of a Gibraltar ship, a
seafarers’ organisation operating in Gibraltar; or
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(d) an efficient, adequate and accountable system, other than a
seafarer recruitment service or seafarers’ organisation, to
which all seafarers have access without charge.
(2) The Maritime Administrator must–
(a) ensure that any public service which is a seafarer recruitment
and placement service operating in Gibraltar is operated in an
orderly manner that protects and promotes seafarers’
employment rights as provided in the MLC;
(b) closely supervise and control any other seafarer recruitment
service operating in Gibraltar;
(c) ensure that adequate machinery and procedures exist for the
investigation, if necessary, of complaints concerning the
activities of seafarer recruitment and placement services which
operate in Gibraltar or are used by the shipowner of a Gibraltar
ship, involving representatives of shipowners and seafarers in
an investigation as appropriate;
(d) as far as practicable, unless he is satisfied that standards
equivalent to those of the MLC apply and within any
applicable principles relating to the free movement of workers,
advise Gibraltar nationals on the possible problems of signing
on a ship which is not a Gibraltar ship or MLC ship.
Regulation of seafarer recruitment services.
10.(1) A person who operates a seafarer recruitment service in Gibraltar
other than a public service must–
(a) have a valid seafarers’ recruitment services certificate for
that service, issued by the Maritime Administrator; and
(b) operate the service in accordance with that certificate.
(2) The Maritime Administrator may, having consulted relevant
shipowners’ and seafarers’ organisations, issue a seafarers’ recruitment
services certificate to a seafarers’ recruitment service in Gibraltar which−
(a) does not use means, mechanisms or lists intended to prevent or
deter seafarers from gaining employment for which they are
qualified;
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(b) does not impose fees or other charges borne directly or
indirectly, in whole or in part, by the seafarer, other than the
cost of the seafarer obtaining a national statutory medical
certificate, the national seafarer’s book and a passport or other
similar personal travel document, not including however the
cost of visas, which must be borne by the shipowner;
(c) maintains an up-to-date register of all seafarers recruited or
placed through the service and keeps the register available for
inspection by the Maritime Administrator;
(d) ensures that seafarers are informed of their rights and duties
under their employment agreements prior to or in the process
of engagement and that proper arrangements are made for
seafarers to examine their employment agreements before and
after they are signed and for them to receive a copy of the
agreements;
(e) verifies that seafarers recruited or placed by the service are
qualified and hold the documents necessary for the job
concerned, and that the seafarers’ employment agreements are
in accordance with applicable laws and regulations and any
collective bargaining agreement that forms part of the
employment agreement;
(f) ensures, as far as practicable, that the shipowner has the means
to protect seafarers on the ship from being stranded in a foreign
port;
(g) examines and responds to any complaint concerning the
service’s activities and advises the Maritime Administrator of
any unresolved complaint; and
(h) establishes a system of protection, by way of insurance or an
equivalent appropriate measure, to compensate a seafarer for
monetary loss that the seafarer may incur as a result of−
(i) a failure of the recruitment and placement service to
meet its obligations to the seafarer, or
(ii) a failure of the shipowner under the seafarers’
employment agreement,
to meet its obligations to the seafarer.
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(3) The Maritime Administrator must ensure that any certificate for the
operation of a private seafarer recruitment service is granted or renewed−
(a) only after verification that the service concerned meets the
requirements of the standardised system of certification and of
any other relevant requirements of Gibraltar law;
(b) for a period of no more than 5 years.
(4) The Maritime Administrator may−
(a) suspend or cancel a certificate for the operation of a private
seafarer recruitment service;
(b) charge a fee to any person seeking the issue or renewal of a
certificate for the operation of a private seafarer recruitment
service.
(5) In this regulation “private seafarer recruitment service” means a
business whose primary purpose is the recruitment and placement of
seafarers or which recruits and places a significant number of seafarers.
PART III
CONDITIONS OF SEAFARERS’ EMPLOYMENT
Seafarers’ employment agreements.
11.(1) No person may work as a seafarer on board a ship unless−
(a) that person has a seafarers’ employment agreement; or
(b) if the seafarer is not an employee, that seafarer has evidence of
contractual or similar arrangements which provide the seafarer
with decent working and living conditions on board the ship as
required−
(i) by the MLC, and
(ii) if the ship is a Gibraltar ship or Member State ship, by
Directive 2009/13/EC.
(2) The shipowner, the master and the employer of a seafarer on a ship
must ensure that−
(a) if the seafarer is an employee, the seafarer has a seafarers’
employment agreement;
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(b) if the seafarer is not an employee, the seafarer has evidence of
contractual or similar arrangements which provide that seafarer
with decent working and living conditions on board the ship as
required by the MLC; and
(c) the seafarer has a seafarers’ employment record.
Early termination of seafarers’ employment agreements.
12.(1) A seafarer on a Gibraltar ship, the shipowner or master of a ship
other than an MLC ship, or the employer of a seafarer on a ship other than
an MLC ship, may not terminate a seafarer’s employment agreement before
the earliest date of termination in that agreement unless−
(a) the seafarer is terminating the agreement for compassionate or
other urgent reasons;
(b) the termination of the agreement is in accordance with
circumstances determined by the Maritime Administrator as
justifying termination of the employment agreement at shorter
notice or without notice; or
(c) the person terminating the agreement gives a minimum of
seven days’ notice.
(2) A seafarer on an MLC ship, the shipowner or master of an MLC ship,
or the employer of a seafarer on an MLC ship, may not terminate a
seafarer’s employment agreement before the earliest date of termination in
that agreement unless−
(a) the seafarer is terminating the agreement for compassionate or
other urgent reasons;
(b) the termination of the agreement is in accordance with
circumstances determined by the Maritime Administrator as
justifying termination of the employment agreement at shorter
notice or without notice; or
(c) the person terminating the agreement gives a minimum notice
period of seven days or, if longer, the minimum notice period
determined by the ship’s flag State.
(3) A shipowner, master or employer must not impose any penalty on a
seafarer who terminates his seafarers’ employment agreement for
compassionate or other urgent reasons.
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Documentation relating to seafarers’ employment agreements.
13.(1) The shipowner, the master and the employer of a seafarer on a ship
must ensure that–
(a) the seafarer has a signed original of their seafarers’
employment agreement and a copy of their seafarers’
employment record;
(b) the seafarer can easily obtain on board the ship clear
information as to the conditions of their employment on the
ship;
(c) a copy of any collective agreement or workforce agreement
forming all or part of the seafarers’ employment agreement of
any seafarer on the ship is available on board the ship;
(d) the following documents are available for review by the
Maritime Administrator−
(i) a copy of the standard form of the seafarers’ employment
agreement of every seafarer on board the ship,
(ii) the information referred to in paragraph (b),
(iii) a copy in English of the standard form of the seafarers’
employment agreement of every seafarer on board the
ship, and
(iv) a copy in English of any portions of a collective
agreement or workforce agreement referred to in
paragraph (c) which are subject to Port State inspection.
(2) The shipowner must have a signed original of the seafarers’
employment agreement for each seafarer on a ship of which he is the
shipowner.
Seafarers’ wages.
14.(1) The shipowner and the employer of a seafarer on board a ship must
ensure that every seafarer on board the ship is paid−
(a) regularly;
(b) at intervals no greater than a month; and
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(c) in full in accordance with the seafarer’s employment
agreement and any collective agreement or workforce
agreement applicable to that seafarer’s employment on board
the ship.
(2) The shipowner and the employer of a seafarer on board a ship must
ensure that every seafarer on board the ship is given a monthly account of
the payments due and the amounts paid, including–
(a) wages;
(b) additional payments;
(c) if payment has been made in a currency other than one referred
to in the seafarers’ employment agreement, the rate of
exchange used to calculate the payment;
(d) if payment has been made at a different rate of exchange from
that agreed to, the rate of exchange at which payment has been
made.
(3) The shipowner and the employer of a seafarer on board a ship must
ensure that the seafarer is provided with a means to transmit all or part of
the seafarer’s wages and additional payments to the seafarer’s family or
dependants or legal beneficiaries, and that those means of transmission
include–
(a) a system for enabling a seafarer, at the time of the seafarer’s
starting work on board the ship or during it, to allot, if the
seafarer so desires, a proportion of the seafarer’s wages for
remittance at regular intervals to the seafarer’s family by bank
transfers or similar means; and
(b) a requirement that allotments should be remitted in due time
and directly to the person or persons nominated by the seafarer.
(4) The shipowner and the employer of a seafarer on board a ship must
ensure that–
(a) any charge for a service provided to the seafarer as set out in
subregulation (3) is reasonable in amount; and
(b) the rate of currency exchange is–
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(i) at the prevailing market rate or official published rate
according to the national laws of the State whose flag the
ship flies, and
(ii) not unfavourable to the seafarer.
(5) The Maritime Administrator may determine additional provisions
regarding the calculation and payment of the wages of seafarers on Gibraltar
ships and ships which are not MLC ships, any such determination to give
due consideration to the guidance provided in Guideline B.2.2 of the MLC.
Hours of work and rest on Gibraltar ships.
15.(1) The shipowner, master and employer of a seafarer on board a
Gibraltar ship must ensure that–
(a) the normal working hours’ standard for the seafarer is, in
principle, based on an eight-hour day with one day of rest each
week and rest on public holidays; and
(b) the seafarer’s hours of rest are not less than ten hours in any 24
hour period and 77 hours in any seven-day period.
(2) For the purposes of subregulation (1)(b), hours of rest may be divided
into no more than two periods, one of which must be at least six hours in
length, and the interval between consecutive periods of rest must not exceed
14 hours.
(3) The Maritime Administrator may give an exemption to subregulation
(1) as respects seafarers on a ship where a collective agreement or
workforce agreement which applies to those seafarers−
(a) as far as possible, follows the standards set out in subregulation
(1); and
(b) takes account of more frequent or longer leave periods or the
granting of compensatory leave for watchkeeping seafarers or
seafarers working on board ship on short voyages.
(4) The shipowner, master and employer of a seafarer on board a Gibraltar
ship must ensure that−
(a) musters, fire-fighting and lifeboat drills are conducted in a
manner that minimises the disturbance of rest periods and does
not induce fatigue; and
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(b) if the seafarer’s normal period of rest is disturbed by call-outs
to work, the seafarer has an adequate compensatory rest period.
(5) If–
(a) no collective agreement, workforce agreement or arbitration
award relates to the application of subregulation (4) to a
seafarer; or
(b) the Maritime Administrator considers that the provisions of
such an agreement or award are inadequate to ensure that the
seafarer has sufficient rest;
the Maritime Administrator may, as he considers necessary, determine the
requirements with which the shipowner, master and employer of the
seafarer must comply as respects subregulation (4) in order to ensure that
the seafarer has sufficient rest.
(6) The master of a Gibraltar ship–
(a) may require a seafarer to perform any hours of work necessary
for the immediate safety of the ship, of persons on board the
ship or of cargo on board the ship, or for the purpose of giving
assistance to other ships or persons in distress at sea;
(b) in accordance with paragraph (a), may suspend the schedule of
hours of rest until the normal situation has been restored; and
(c) must, as soon as possible after a normal situation has been
restored, ensure that any seafarer who has performed work in a
scheduled rest period is provided with an adequate period of
rest.
Hours of work and rest on MLC and other ships.
16. The shipowner, master and employer of a seafarer on board a ship other
than a Gibraltar ship must ensure that the seafarer’s hours of work and hours
of rest−
(a) if the ship is a Member State ship, comply with the
requirements of Directive 1999/63/EC as applied by that
Member State;
(b) if the ship is an MLC ship which is not a Member State ship,
comply with the requirements of Regulation 2.3 and Standard
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A2.3 of the MLC as applied by the competent authority of the
ship’s flag State;
(c) if the ship is not an MLC ship, comply with the requirements
of Regulation 2.3 and Standard A2.3 of the MLC.
Documentation of seafarers’ hours of work.
17.(1) The shipowner, master and employer of a seafarer on board a ship
must ensure that–
(a) a record of each seafarer’s daily hours of work or daily hours
of rest is maintained, in the working language or languages of
the ship and in English, in accordance with the requirements of
the flag State in which the ship is registered;
(b) the seafarer receives a copy of the record pertaining to him
which has been endorsed by the master of the ship or a person
authorised by the master and by the seafarer;
(c) a table is posted in an easily accessible place on board the ship
which contains for every seafaring position on board the ship at
least–
(i) the schedule of service at sea and service in port; and
(ii) the maximum hours of work or the minimum hours of
rest required by the laws, regulations, collective
agreements or workforce agreements in force in relation
to the ship and the seafarers on board the ship;
(d) on a Gibraltar ship or Member State ship, a copy of the
relevant provisions of the national legislation pertaining to the
Annex to Directive 1999/63/EC and of any relevant collective
agreements or workplace agreements is kept on board the ship
and easily accessible to the seafarers on board the ship;
(e) on a Gibraltar ship, the Maritime Administrator is at his request
provided with information on watchkeepers and other night
workers on the ship;
(f) on a Member State ship, the competent authority of the ship’s
flag State is at its request provided with information on
watchkeepers and other night workers on the ship.
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(2) The table posted in accordance with subregulation (1)(c) must be in a
standardised format in the working language or languages of the ship and in
English.
(3) As respects a Gibraltar ship the Maritime Administrator must
determine–
(a) the procedures for keeping records of seafarers’ hours of work
or rest on board the ship, including the intervals at which the
information must be recorded; and
(b) taking into account any available international guidelines, the
format of those records.
(4) The master of a Gibraltar ship must examine and endorse, at
appropriate intervals, the records of seafarers’ hours of work or hours of
rest.
Seafarers’ entitlement to leave.
18.(1) The shipowner, master and employer of a seafarer on board a
Gibraltar ship must ensure that–
(a) the seafarer takes paid annual leave at a minimum of 2.5
calendar days per month of employment and pro rata for
incomplete months; and
(b) within the operational requirements of the seafarer’s position,
the seafarer is granted shore leave to benefit their health and
well-being.
(2) If an employment relationship terminates when a seafarer has not
taken all paid annual leave due under subregulation (1), the shipowner or
employer may replace the seafarer’s minimum paid annual leave allowance
required by subregulation (1) with a payment in lieu.
(3) For the purposes of subregulations (1) and (2), a justified absence from
work must not be treated as annual leave.
(4) If−
(a) a collective agreement or workforce agreement provides for an
appropriate alternative method of calculation of paid annual
leave for a seafarer on a Gibraltar ship; and
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(b) that alternative method of calculation takes account of the
special needs of the seafarer in that respect,
the Maritime Administrator may determine alternative minimum standards
for the annual leave and method of calculation of the seafarer as set out in
that collective agreement or workforce agreement.
Seafarers’ right to repatriation.
19.(1) The shipowner and employer of a seafarer on board a Gibraltar ship
must ensure that the seafarer is repatriated at no cost to the seafarer if the
seafarer has been on board for a period not exceeding 12 months and–
(a) the seafarers’ employment agreement expires while the
seafarer is abroad;
(b) the seafarers’ employment agreement is terminated by the
shipowner;
(c) the seafarers’ employment agreement is terminated by the
seafarer for justified reasons;
(d) the seafarer is no longer able to carry out the duties specified in
the seafarers’ employment agreement; or
(e) in the specific circumstances, the seafarer cannot be expected
to carry out the duties specified in the seafarers’ employment
agreement.
(2) The shipowner and employer of a seafarer on board a ship must not−
(a) take advance payment from the seafarer towards the cost of
repatriation;
(b) recover from the seafarer’s wages or other entitlements the cost
of repatriation, unless the seafarer has been found, in
accordance with−
(i) in the case of a seafarer on a ship other than an MLC
ship, a determination by the Maritime Administrator, or
(ii) in the case of a seafarer on an MLC ship, the relevant
national laws, regulations or other measures, or
applicable collective bargaining agreements,
to be in serious default of the seafarer’s employment obligations.
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(3) The shipowner of a Gibraltar ship must ensure that there is in force a
contract of insurance or other financial security in respect of the liabilities
arising from the shipowner’s duty to make provision for the repatriation of
seafarers in accordance with these Regulations.
(4) The Maritime Administrator must, where appropriate, determine–
(a) the circumstances in which a seafarer is entitled to repatriation
in accordance with subregulation (1)(b) to (e);
(b) a period shorter than 12 months on board a ship after which the
shipowner and employer of a seafarer must ensure that the
seafarer is repatriated at no cost to the seafarer as otherwise set
out in subregulation (1);
(a) the criteria by which the destination of repatriation, the mode of transport, the items of expense to be covered and other
arrangements to be made by shipowners and employers in
accordance with subregulation (1) are to be decided;
(b) any requirements with which a shipowner must comply in order to meet the duty to provide financial security in subregulation
(3).
(5) Subregulation (6) applies where–
(a) the shipowner and employer of a seafarer on board a Gibraltar
ship fails to make arrangements for and meet the cost of the
repatriation of a seafarer entitled to be repatriated;
(b) the shipowner and employer of a seafarer on board a ship other
than a Gibraltar ship, and the competent authority of the flag
State of that ship, fail to make arrangements for and meet the
cost of the repatriation of a seafarer entitled to be repatriated
from Gibraltar in accordance with−
(i) the requirements of the MLC as implemented by the flag
State of that ship, or
(ii) the minimum requirements of the MLC,
(c) the shipowner and employer of a seafarer who is a Gibraltar
national, and the competent authority of the flag State of the
ship on which the seafarer has been employed or engaged in
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work, fail to make arrangements for and meet the cost of the
repatriation of the seafarer in accordance with−
(i) the requirements of the MLC as implemented by the flag
State of that ship, or
(ii) the minimum requirements of the MLC.
(6) Where this subregulation applies, the Maritime Administrator–
(a) must arrange for the repatriation of the seafarer;
(b) may recover the cost from the seafarer where the seafarer has
been found in accordance with a determination by the Maritime
Administrator to be in serious default of the seafarer’s
employment obligations;
(c) except where paragraph (b) applies, may recover the costs of
repatriation from−
(i) the shipowner of the ship on which the seafarer has been
employed or engaged in work,
(ii) the employer of the seafarer, or
(ii) the flag State of the ship on which the seafarer has been
employed or engaged in work.
(7) The Maritime Administrator may detain, or request the detention of,
any ship in relation to which subregulation (6) applies until the costs of
repatriation have been fully reimbursed.
(8) The Maritime Administrator must facilitate−
(a) the repatriation, in accordance with the requirements of the
MLC, of a seafarer serving on a ship; and
(b) the replacement of that seafarer on board ship.
(9) The shipowner, master and employer of a seafarer on a Gibraltar ship
must ensure that there is carried on board the ship and made available to the
seafarer a copy, in the working language or languages of the ship and in
English, of this regulation and of any determinations made by the Maritime
Administrator in accordance with this regulation as respects Gibraltar ships.
Seafarer compensation for a ship’s loss or foundering.
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20.(1) The shipowner must pay to a seafarer on a ship which is lost or
founders−
(a) if the seafarer is unemployed as a result of that loss or
foundering, the amount of wages which would have been due
to the seafarer under the seafarers’ employment agreement;
(b) if the loss or foundering of the ship causes the seafarer to suffer
personal injury or loss, compensation.
(2) Payment under subregulation (1)−
(a) if it is paid in accordance with subregulation (1)(a), is limited
to the amount of two months’ wages calculated from the date
of the loss or foundering of the ship or, if shorter, to the
amount of wages due for the period in which the seafarer–
(i) would otherwise have been employed on the ship, and
(ii) was unemployed,
(b) if it is paid in accordance with subregulation (1)(b) in relation
to loss other than personal injury or death, is limited to the
amount (if any) specified in the seafarers’ employment
agreement;
(c) is without prejudice to any other rights the seafarer may have
for losses or injuries arising from the ship’s loss or foundering;
(d) may be recovered as a civil debt.
Manning levels.
21.(1) The Maritime Administrator must ensure that a safe manning
document issued by the Administration to a Gibraltar ship under the
Gibraltar Merchant Shipping (Manning, Training and Certification for
Seafarers) Regulations 2006 is issued in compliance with the requirements
of Regulation 2.7 of the MLC and Clauses 10 and 12 of the Annex to
Council Directive 1999/63/EC.
(2) The shipowner of a ship other than a Gibraltar ship must ensure that
the manning levels on the ship−
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(a) if the ship is a Member State ship, comply with the
requirements of Directive 1999/63/EC as applied by that
Member State; and
(b) if the ship is not a Member State ship, comply with the
requirements of Regulation 2.7 and Standard A2.7 of the MLC
as applied by the competent authority of the ship’s flag State.
Career and skill development and opportunities for seafarers’
employment.
22.(1) The Maritime Administrator may–
(a) promote employment in the maritime sector in Gibraltar;
(b) encourage career and skill development and greater
employment opportunities for seafarers;
(c) help seafarers strengthen their competencies, qualifications and
employment opportunities;
(2) The Maritime Administrator must, having consulted shipowners’ and
seafarers’ organisations, establish clear objectives for the vocational
guidance, education and training of seafarers whose duties on board ship
primarily relate to the safe operation and navigation of the ship, including
ongoing training.
PART IV
ACCOMMODATION, FOOD AND CATERING
Crew accommodation on Gibraltar etc. ships.
23.(1) The shipowner of a ship other than an MLC ship must ensure that
crew accommodation on the ship−
(a) is decent accommodation, consistent with promoting the
seafarers’ safety, health and well-being;
(b) if the ship was constructed on or after the date on which these
Regulations come into force, is constructed, equipped,
provided and maintained to the minimum standards for on-
board accommodation and recreational facilities, amenities and
services set out in Regulation 3.1.1 and Standard A3.1 of the
MLC;
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(c) if the ship was constructed before the date on which these
Regulations come into force−
(i) is constructed and equipped in accordance with the
requirements (if any) relating to ship construction and
equipment set out in the Accommodation of Crews
Convention (Revised), 1949 (No. 92) and the
Accommodation of Crews (Supplementary Provisions)
Convention, 1970 (No. 133) which applied to that ship
immediately before that date, and
(ii) is provided and maintained to the minimum standards for
on-board accommodation and recreational facilities,
amenities and services set out in Regulation 3.1.1 and
Standard A3.1 of the MLC.
(2) The master of a ship other than an MLC ship or a person authorised by
the master must−
(a) ensure that crew accommodation on a ship is cleaned and
maintained to conform with the requirements of subregulation
(1);
(b) carry out frequent inspections to ensure that the crew
accommodation is clean, decently habitable and maintained in
a good state of repair; and
(c) record the findings of those inspections and keep them
available for review.
(3) The Maritime Administrator−
(a) must determine the appropriate devices to be fitted to a
Gibraltar ship regularly trading to mosquito-infested ports;
(b) may, having consulted shipowners’ and seafarer’s
organisations, permit fairly applied variations to take account
on Gibraltar ships, without discrimination, of the interests of
seafarers having differing and distinctive religious and social
practices, provided that such variations do not result in overall
facilities less favourable than those which would result from
the application of Standard A3.1 of the MLC.
Crew accommodation: exemptions and equivalences.
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24. The Maritime Administrator may exempt a Gibraltar ship of less than
200 gross tonnage, from some or all of the requirements of regulation 23 if
the exemption−
(a) is reasonable taking account of the size of the ship and the
number of persons on board;
(b) does not result in overall facilities less favourable than those
which would result if no exemption had been given and relates
to Standard A3.1.7(b), 11(d) and 13 of the MLC or, as respects
floor area only, Standard A3.1.9(f) and (h) to (l) of the MLC;
or
(c) is otherwise expressly permitted in Standard A3.1 of the MLC.
Crew accommodation on MLC ships.
25.(1) The shipowner of an MLC ship must ensure that crew
accommodation on the ship is constructed, equipped, provided and
maintained to the standards for on-board accommodation and recreational
facilities set out in Regulation 3.1.1 and Standard A3.1 of the MLC as
implemented by the ship’s flag State.
(2) The master of an MLC ship or a person authorised by the master must
ensure that crew accommodation is inspected in accordance with the
requirements of Standard A3.1 of the MLC as implemented by the flag State
of that ship.
Food and catering on Gibraltar etc. ships.
26.(1) The shipowner and the master of a ship other than an MLC ship must
ensure that food and drinking water are provided on the ship which−
(a) are suitable in respect of quantity, nutritional value, quality and
variety, taking account of−
(i) the number of seafarers on board,
(ii) the character, nature and duration of the voyage, and
(iii) the different religious requirements and cultural practices
in relation to food of the seafarers on board,
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(b) do not contain anything which is likely to cause sickness or
injury to health or which renders any food or drinking water
unpalatable;
(c) are otherwise fit for consumption.
(2) The shipowner and the master of a ship other than an MLC ship must
ensure that−
(a) food and drinking water provided in accordance with
subregulation (1) are provided free of charge to all seafarers
while they are on board;
(b) the catering department on the ship is organised and equipped
so as to permit the provision to the seafarers of adequate,
varied and nutritious meals prepared and served in hygienic
conditions;
(c) seafarers whose normal duties include the preparation and
storage of food, the service of meals to seafarers on board the
ship or other work in the galley or in areas where food is stored
or handled are properly trained or instructed for their positions;
(d) any person processing food in the galley has been trained or
instructed in areas including food and personal hygiene and the
handling and storage of food on board ship.
(3) The master of a ship other than an MLC ship, or a person authorised
by the master, must carry out frequent inspections of−
(a) supplies of food and drinking water on board the ship;
(b) all spaces and equipment used for the storage and handling of
food and drinking waters; and
(c) galley and other equipment for the preparation and service of
meals;
and must record the findings of those inspections and keep them available
for review.
(4) Subject to subregulation (5), the shipowner and the master of a ship
other than an MLC ship, which ordinarily operates with 10 or more
seafarers on board must ensure that the ship does not proceed to sea unless a
qualified ships’ cook is on board.
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(5) The Maritime Administrator may grant a Gibraltar ship an exemption
from subregulation (4)−
(a) until the ship’s next port of call; or
(b) for a period not exceeding one month;
but only if there is a person on board the ship who is trained or instructed in
areas including food and personal hygiene and handling and storage of food
on board ship.
(6) In this regulation “qualified ships’ cook” means−
(a) a person who−
(i) is over the age of 18,
(ii) has completed a minimum amount of sea-service as
determined by the Maritime Administrator,
(iii) holds a valid Certificate of Medical Fitness,
(iv) has completed a training course, approved or recognised
by the Maritime Administrator or by the competent
authority of an MLC State, which covers practical
cookery, food and personal hygiene, food storage, stock
control and environmental protection and catering health
and safety,
(v) has completed such other training as may be determined
by the Maritime Administrator,
and has been issued by the Maritime Administrator with a Certificate of
Qualification as a Ships’ Cook; or
(b) a person who−
(i) meets the minimum requirements for a ship’s cook set
out in Standard A3.2 of the MLC, and
(ii) holds a valid certificate of qualification as a ships’ cook
issued by an MLC State, by a State which has ratified the
Certification of Ships’ Cooks Convention, 1946 (No.69)
or by any other body approved by the Maritime
Administrator.
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Food and catering on MLC ships.
27.(1) The shipowner and the master of an MLC ship must ensure that−
(a) food and catering on the ship is provided and maintained to the
standards for food and catering set out in Regulation 3.2 and
Standard A3.2 of the MLC as implemented by the flag State of
that ship; and
(b) that a seafarer is engaged as a ship’s cook as required by
Regulation 3.2 and Standard A3.2 as implemented by the flag
State of that ship.
(2) The master of an MLC ship or a person authorised by the master must
ensure that frequent documented inspections are carried out in accordance
with the requirements of Standard A3.2 of the MLC as implemented by the
flag State of that ship.
PART V
HEALTH PROTECTION, MEDICAL CARE, WELFARE AND
SOCIAL SECURITY PROTECTION
Medical care on board ship and ashore.
28.(1) The shipowner, master and employer of a seafarer on a ship other
than an MLC ship must ensure that–
(a) seafarers are given health protection and medical care,
including essential dental care, which is as comparable as
possible to that generally available to workers in Gibraltar,
including prompt access to the necessary medicines, medical
equipment and facilities for diagnosis and treatment and to
medical information and expertise;
(b) seafarers are given the right to visit a qualified medical doctor
or dentist without delay in ports of call, where practicable;
(c) seafarers are provided with measures of a preventive character
such as health promotion and health education programmes,
(d) seafarers’ medical information is kept confidential and only
used to facilitate the treatment of the seafarer;
(e) a medicine chest, medical equipment and a medical guide are
carried on board in accordance with requirements determined
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by the Maritime Administrator in relation to that ship, or in
relation to ships of that description;
(f) if the ship–
(i) carries 100 or more persons and is ordinarily engaged on
international voyages of more than three days’ duration,
or
(ii) is of a description of ships which the Maritime
Administrator has determined must carry a qualified
medical doctor, a qualified medical doctor is on board the ship and is responsible for providing
medical care to persons on board the ship,
(g) if the ship is not required to carry a qualified medical doctor on
board−
(i) at least one seafarer on board has satisfactorily
completed training in medical care that meets the
requirements of STCW to the level determined in
relation to the ship by the Maritime Administrator and is
in charge of medical care and administering medicine as
part of their regular duties; or
(ii) at least one seafarer on board has satisfactorily
completed training in medical first aid that meets the
requirements of STCW to the level determined in
relation to the ship by the Maritime Administrator and is
competent to provide medical first aid.
(2) The shipowner and the employer of a seafarer on a ship other than an
MLC ship must ensure that medical and dental care provided to a seafarer
on board a ship in accordance with subregulation (1) are provided free of
charge to all seafarers while they are on board or landed in a foreign port.
(3) The Maritime Administrator must−
(a) adopt a standard medical report form for use by ships’ masters
and relevant onshore and on-board medical personnel;
(b) determine the requirements for the medicine chest, medical
equipment and medical guide to be carried on board a ship or
ships of a particular description;
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(c) determine the ships or descriptions of ships which must carry a
qualified medical doctor on board;
(d) determine, in relation to particular ships or descriptions of ship,
the level of training in medical care or medical first aid to be
satisfactorily completed in order to meet the requirements of
subregulation (1)(g);
(e) ensure that medical advice by radio or satellite communication
is available to a Gibraltar ship by a prearranged system 24
hours a day when the ship is at sea.
(4) The shipowner, the master and the employer of a seafarer on an MLC
ship must ensure that−
(a) medical and dental care, medicine chests, medical equipment
and a medical guide is provided to the standards for medical
care set out in Regulation 4.1 and Standard A4.1 of the MLC
as implemented by the flag State of that ship; and
(b) that the ship carries a qualified medical practitioner, a seafarer
in charge of medical care or a seafarer designated to provide
first aid as required by Regulation 4.1 and Standard A4.1 of the
MLC as implemented by the flag State of that ship.
Shipowners’ liability.
29.(1) The shipowner of a Gibraltar ship must−
(a) provide medical care for a seafarer on the ship and ashore,
including medical treatment and the supply of necessary
medicines and therapeutic appliances, in respect of sickness or
injury occurring between the date of the seafarer’s
commencing duty and the date upon which the seafarer is
deemed duly repatriated, or arising from the seafarer’s
employment or engagement on work between those dates;
(b) provide board and lodging away from home until a seafarer
who is sick or injured while employed or engaged in work on
the ship or arising from that employment or engagement has
recovered, or until the sickness or incapacity has been declared
of a permanent character;
(c) where the sickness or injury of a seafarer results in that
seafarer’s incapacity for work−
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(i) make full payment of wages while the seafarer is on
board the ship or, if the seafarer is entitled to be
repatriated, until the seafarer has been repatriated,
(ii) make payment of wages in full or in part from the date
on which the seafarer leaves the ship or is repatriated and
the date on which the seafarer has recovered or is entitled
to cash payments from the Government of Gibraltar,
(d) in accordance with the laws of Gibraltar, the seafarers’
employment agreement or a collective agreement, pay
compensation in the event of death or long term disability of a
seafarer due to an occupational injury, illness or hazard while
the seafarer is employed or engaged in work on the ship or
arising from that employment or engagement;
(e) meet the cost of burial expenses in the case of death of a
seafarer occurring on board or ashore during the seafarer’s
period of engagement;
(f) safeguard property left on board the ship by a sick, injured or
deceased seafarer and return it to the seafarer or the seafarer’s
next of kin.
(2) A shipowner is not liable under this regulation−
(a) to defray the expense of medical care and board and lodging
for a period of more than 16 weeks from the day of the injury
or the commencement of the sickness;
(b) to pay wages in whole or in part in respect of a seafarer no
longer on board ship for a period of more than 16 weeks from
the day of the injury or the commencement of the sickness;
(c) where−
(i) injury occurred otherwise than in the service of the ship,
(ii) injury or sickness was due to the wilful misconduct of
the sick, injured or deceased seafarer,
(iii) the sickness or infirmity was intentionally concealed
when the employment or engagement of the seafarer was
entered into.
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(3) The shipowner of a ship which is going to put to sea or is at sea must
have in force a contract of insurance or other security adequate to ensure
that the shipowner will be able to meet any liabilities the shipowner may
have in accordance with this regulation.
(4) The Maritime Administrator may determine the requirements with
which a shipowner must comply in order to meet the duty in subregulation
(3).
Health and safety protection and accident prevention.
30.(1) The shipowner, the master and the employer of a seafarer on a
Gibraltar ship must ensure that seafarers on the ship are provided with−
(a) occupational health protection;
(b) a safe and hygienic environment in which to live, work and
train;
(d) safety and health protection appropriate to the nature of the
seafarer’s work;
(e) equivalent protection and prevention services or facilities with
regard to the safety and health of seafarers working by day or
by night.
(2) The shipowner and employer of a seafarer on a Gibraltar ship must
comply with the requirements of those international and national
instruments on the acceptable levels of exposure to workforce hazards on
board ships and on the development and implementation of ships’
occupational safety and health policies and programmes which the Maritime
Administrator determines are applicable to Gibraltar ships or to Gibraltar
ships of that description.
(3) The Maritime Administrator must−
(a) determine the international and national instruments on the
acceptable levels of exposure to workforce hazards on board
ships and on the development and implementation of ships’
occupational safety and health policies and programmes which
are applicable to Gibraltar ships;
(b) having consulted shipowners’ and seafarers’ organisations and
taking into account applicable codes, guidelines and standards
recommended by international organisations, national
administrations and maritime industry organisations, issue
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guidance for the management of occupational health and safety
on board Gibraltar ships.
(4) The Gibraltar Merchant Shipping (Accident Reporting and
Investigation) Regulations 2012 apply to ships to which these Regulations
apply.
Access to shore-based welfare facilities.
31. The Captain of the Port must−
(a) ensure that shore-based facilities for seafarers in the Port of
Gibraltar are easily accessible by seafarers irrespective of
nationality, race, colour, sex, religion, political opinion or
social origin and irrespective of the flag State of the ship on
which they are employed or engaged in work;
(b) promote the development of welfare facilities for seafarers in
the Port of Gibraltar;
(c) encourage the establishment of welfare boards which regularly
review welfare facilities and services for seafarers in the Port
of Gibraltar to ensure that they are appropriate in the light of
changes in the needs of seafarers resulting from technical,
operational and other developments in the shipping industry.
Social Security.
32.(1) This regulation applies to−
(a) a person who is domiciled or ordinarily resident in Gibraltar
and is employed on board a ship;
(b) a person who is employed on or working on board a Gibraltar
ship and is an EU national, other than an EU national who is
resident in a Member State in which the shipowner of the ship
(or, if he is employed by a person other than the shipowner, his
employer) has a registered office or place of business;
(c) a person who−
(i) is employed on or working on board a Gibraltar ship,
(ii) is not domiciled in Gibraltar, ordinarily resident in
Gibraltar or an EU national, and
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(iii) does not otherwise have access to social security
provision, or to medical care when in Gibraltar, which
satisfies the requirements of the MLC.
(2) Subject to subregulation (5), a person who is employed on board a
Gibraltar ship must be treated as being in Insurable Employment for the
purposes of the Social Security (Employment Injuries Insurance) Act.
(3) Subject to subregulation (5), a person who is employed on board a
Gibraltar ship, and the shipowner or employer of that person, are liable to
pay contributions under the Social Security (Employment Injuries
Insurance) Act as though that person were in employment in Gibraltar.
(4) Subject to subregulation (5), a person to whom this regulation applies
must be treated as a person resident in Gibraltar for the purposes of Part 2 of
Schedule 1 to the Gibraltar Medical (Group Practice Scheme) Regulations.
(5) Where the Maritime Administrator is satisfied that the requirements of
the MLC are met otherwise than through the application of subregulations
(2) to (4) of this regulation, the Maritime Administrator may−
(a) make a determination as to how this regulation is to apply to a
seafarer or particular description of seafarers;
(b) exempt a seafarer or particular description of seafarers from the
application of this regulation or of part of this regulation.
(6) The Minister may, in order to progressively achieve comprehensive
social security protection for seafarers who are domiciled or resident in
Gibraltar, and for seafarers on Gibraltar ships make a determination
extending the application of Gibraltar legislation on medical care, sickness
benefit, unemployment benefit, old-age benefit, employment injury benefit,
family benefit, maternity benefit, invalidity benefit and survivors’ benefit to
such persons.
PART VI
INSPECTION AND CERTIFICATION
Inspection of Gibraltar ships.
33.(1) This regulation applies to–
(a) a Gibraltar ship of 500 gross tonnage or over which is engaged
in international voyages or is operating from a port in a country
other than Gibraltar; and
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(b) at the request of the shipowner, to any other Gibraltar ship.
(2) A ship to which this regulation applies is subject to the following
inspections−
(a) before a Maritime Labour Certificate is first issued in relation
to the ship, an initial MLC inspection;
(b) within five years of the first issue of a Maritime Labour
Certificate, and thereafter at intervals which must be no more
than five years, a renewal MLC inspection;
(c) between the second and third anniversary dates of a Maritime
Labour Certificate being issued, an intermediate MLC
inspection.
(3) In this Part of these Regulations−
“initial MLC inspection” means an inspection by which a certifying
authority ascertains whether the ship meets the standards of the
MLC Convention, of Directive 1999/63/EC and of Directive
2009/13/EC;
“renewal MLC inspection” means an inspection by which a certifying
authority ascertains whether the ship continues to meet the
standards of the MLC Convention, of Directive 1999/63/EC and of
Directive 2009/13/EC;
“intermediate MLC inspection” means an inspection by which a
certifying authority ascertains whether the ship continues to meet
the standards of the MLC Convention, of Directive 1999/63/EC
and of Directive 2009/13/EC.
Issue of Maritime Labour Certificates to Gibraltar ships.
34.(1) Where−
(a) a certifying authority is satisfied after the completion of an
initial or renewal MLC inspection of the crew accommodation
of a Gibraltar ship that the standards of regulations 23 and 24
are being complied with; and
(b) the Maritime Administrator is satisfied after the completion of
an initial or renewal MLC inspection of a Gibraltar ship other
than the crew accommodation that the standards of these
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Regulations other than regulations 23 and 24, and the standards
of Directive 1999/63/EC and of Directive 2009/13/EC are
being complied with,
the Maritime Administrator must issue a Maritime Labour Certificate.
(2) Where−
(a) a certifying authority is satisfied after the completion of an
intermediate MLC inspection of the crew accommodation of a
Gibraltar ship that the standards of regulations 23 and 24 are
being complied with; and
(b) the Maritime Administrator is satisfied after the completion of
an intermediate MLC inspection of a Gibraltar ship other than
the crew accommodation that the standards of these
Regulations other than regulations 23 and 24, and the standards
of Directive 1999/63/EC and of Directive 2009/13/EC are
being complied with’
the Maritime Administrator must so endorse the Maritime Labour
Certificate.
(3) If any ship which was previously under the flag of another State
becomes a Gibraltar ship, the Maritime Administrator must issue a Maritime
Labour Certificate only if fully satisfied that the ship is in compliance with
the standards of the MLC, of Directive 1999/63/EC and of Directive
2009/13/EC.
(4) The Maritime Administrator may authorise another certifying
authority to carry out an initial, renewal or intermediate MLC inspection of
a Gibraltar ship as respects the standards of these Regulations other than
regulations 23 and 24 and the standards of Directive 1999/63/EC and the
standards of Directive 2009/13/EC.
(5) Where a certifying authority is satisfied, after the completion of an
inspection which it is authorised under subregulation (4) to carry out, that
the standards of these Regulations, of Directive 1999/63/EC and of
Directive 2009/13/EC are being complied with, that certifying authority
must issue or endorse (as appropriate) a Maritime Labour Certificate.
(6) An authorisation of another certifying authority by the Maritime
Administrator under subregulation (4) may be an authorisation as respects a
particular Gibraltar ship, Gibraltar ships of a particular description or
Gibraltar ships in general.
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Inspection and certification of Gibraltar ships by Governments of other
States.
35.(1) The Maritime Administrator may, through a proper officer or
otherwise, request the Government of an MLC State to carry out an initial,
renewal or intermediate MLC inspection of a Gibraltar ship to which
regulation 33 applies and, if fully satisfied that the ship is in compliance
with the standards of the MLC, of Directive 1999/63/EC and of Directive
2009/13/EC−
(a) to issue or authorise the issue of a Maritime Labour Certificate
to the ship, or to endorse or authorise the endorsement of that
Certificate, in accordance with the requirements of the MLC;
(b) to include in the Certificate a statement to the effect that it has
been issued at the request of the Maritime Administrator; and
(c) to transmit a copy of the MLC survey report and the Certificate
to the Maritime Administrator as soon as possible.
(2) A Certificate issued or endorsed in accordance with subregulation (1)
must have the same force and receive the same recognition as a Certificate
issued or endorsed by the Maritime Administrator or by a certifying
authority authorised by the Maritime Administrator.
Interim Maritime Labour Certificates for Gibraltar ships.
36.(1) This regulation applies where−
(a) a ship to which regulation 33 applies is first registered;
(b) a ship to which regulation 33 applies is first registered as a
Gibraltar ship; or
(c) the person who was the owner of a ship to which regulation 33
applies on the date a valid Maritime Labour Certificate was
issued in respect of that ship ceases to be the owner of that
ship,
and no interim Maritime Labour Certificate has previously been issued in
relation to that ship without a valid Maritime Labour Certificate having
been issued to that ship after the interim Maritime Labour Certificate was so
issued.
(2) Where a certifying authority or (where requested by the Maritime
Administrator) the Government of an MLC State has verified that−
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(a) a ship has been inspected, so far as reasonable and practicable;
(b) the owner of the ship has demonstrated that the ship has
adequate procedures to comply with the requirements of these
Regulations;
(c) the master of the ship is familiar with the requirements of the
MLC and the responsibilities for its implementation; and
(d) the Maritime Administrator or the Government of the MLC
State has the information which would be necessary for it to
produce Part 1 of a Declaration of Maritime Labour
Compliance as respects the ship,
the Maritime Administrator, MLC State or certifying authority may issue an
interim Maritime Labour Certificate.
(3) An interim Maritime Labour Certificate may be issued for a period not
exceeding six months.
Inspection and certification of non-Gibraltar ships by the Maritime
Administrator.
37.(1) The Maritime Administrator may, at the request of an MLC State,
inspect a ship registered in that State and, if satisfied that the standards of
the MLC (and, if that MLC State is a member State of the European Union,
the requirements of Directive 1999/63/EC and Directive 2009/13/EC) as
implemented by that MLC State are complied with−
(a) issue as respects the ship a Maritime Labour Certificate or
endorse such a certificate; or
(b) issue as respects the ship an interim Maritime Labour
Certificate, or endorse such a certificate.
(2) The Maritime Administrator must include or have included in any
Certificate issued or endorsed in accordance with subregulation (1) a
statement to the effect that it has been issued or endorsed at the request of
the MLC State in which the ship is registered, and must transmit a copy of
the survey report and the Certificate to that State as soon as possible.
(3) A Certificate issued or endorsed in accordance with subregulation (1)
has effect as if issued or endorsed by the State which requested the survey
of the ship to be carried out.
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Duration and validity of Maritime Labour Certificates.
38.(1) Subject to subregulation (2) below, the Maritime Administrator, a
certifying authority authorised by the Maritime Administrator or an MLC
State issuing a Maritime Labour Certificate in accordance with these
Regulations must issue that certificate−
(a) on the date of the MLC inspection;
(b) as being valid from the date of issue; and
(c) for a period of validity not exceeding five years.
(2) Where a renewal MLC inspection has been completed within a period
of three months before the expiry of a Maritime Labour Certificate, the new
Maritime Labour Certificate must be issued as being valid from the date of
expiry of the existing Certificate.
(3) A Maritime Labour Certificate or interim Maritime Labour Certificate
issued to a Gibraltar ship ceases to be valid−
(a) as respects a ship to which regulation 33 applies, if an
intermediate MLC inspection has not been completed within
the period specified in regulation 33(2)(c) and the Certificate
endorsed in accordance with regulation 34(2);
(b) upon transfer of the ship to the flag of another State;
(c) when the person who was the shipowner on the date the
Certificate was issued ceases to be the shipowner;
(d) if substantial changes are made to the ship’s accommodation or
recreational facilities for seafarers or its food and catering
facilities; or
(e) the ship’s accommodation or recreational facilities for seafarers
or the ship’s food and catering facilities have sustained damage
or otherwise become deficient and that damage or deficiency
has not been rectified.
(4) The Maritime Administrator may cancel a Maritime Labour Certificate
or interim Maritime Labour Certificate issued to a Gibraltar ship where the
Maritime Administrator has reason to believe that the certificate was issued
on false or erroneous information, and may require such a certificate to be
surrendered as directed.
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(5) Where−
(a) a Maritime Labour Certificate or interim Maritime Labour
Certificate has been issued to a Gibraltar ship and has not
expired; and
(b) the Maritime Administrator has determined that there is clear
evidence that the ship does not comply with the requirements
of the MLC and that the failure of the ship to comply
endangers the safety of the ship or its crew,
the Maritime Administrator may suspend the validity of the Maritime
Labour Certificate or interim Maritime Labour Certificate, must give notice
of any such suspension to the owner and the master of the ship, and may
require the Certificate which has been so suspended to be surrendered as
directed.
Declaration of Maritime Labour Compliance.
39.(1) The owner of a ship which is subject to an inspection in accordance
with regulation 33, 35 or 36 must−
(a) provide to the person undertaking the inspection the
information necessary for that person to draw up Part 1 of a
Declaration of Maritime Labour Compliance as respects the
ship; and
(b) draw up Part 2 of a Declaration of Maritime Labour
Compliance as respects the ship.
(2) Where the person undertaking the inspection of a ship has been
provided with information and with Part 2 of a Declaration of Maritime
Labour Compliance as required by subregulation (1), that person must−
(a) draw up Part 1 of a Declaration of Maritime Labour
Compliance;
(b) certify Part 2 of the Declaration of Maritime Labour
Compliance; and
(c) issue Part 1 and Part 2 of the Declaration of Maritime Labour
Compliance.
(3) In subregulations (1) and (2) “the person undertaking the inspection of
the ship” means−
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(a) where an inspection of the ship has been undertaken by the
Maritime Administrator, the Maritime Administrator;
(b) where an inspection of the ship has been undertaken by another
certifying authority authorised by the Maritime Administrator
under regulation 34(4), that certifying authority;
(c) where an inspection has been undertaken by an MLC State
following a request by the Maritime Administrator under
regulation 35, that MLC State.
(4) A person drawing up Part I of a Declaration of Maritime Labour
Compliance and certifying Part 2 of a Declaration of Maritime Labour
Compliance must attach that Part I and Part 2 to the ship’s Maritime Labour
Certificate.
(5) A person carrying out any MLC inspection or any verification of the
compliance of a ship with the MLC, must record the results of that MLC
inspection or verification in Part 1 of the Declaration of Maritime Labour
Compliance for that ship or otherwise make that information available to
seafarers on the ship, inspectors and shipowners’ and seafarers’
representatives.
Appeals.
40.(1) In the case of any dispute or complaint with regard to any decision
made by the Maritime Administrator in carrying out his duties under these
Regulations, a shipowner may, within 7 days, make an appeal to the
Minister with responsibility for the port and shipping and the Minister shall
dispose of the appeal as soon as possible in writing by giving reasons for his
decision.
(2) On an appeal under subregulation (1), the Minister must either−
(a) confirm the decision made by the Maritime Administrator or
confirm it with such modifications as he thinks fit; or
(b) cancel it.
(3) A second appeal may be made to the Supreme Court and only on a
point of law.
(4) An appeal under subregulation (3) must be made within 21 days from
the decision made by the Minister under subregulation (1) and the Court
shall give an expedited hearing to that appeal.
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(5) An appeal to the Minister or to the Court does not suspend the
operation of a notice of detention of a ship.
Documents to be carried on board Gibraltar ships.
41.(1) The shipowner and the master of a Gibraltar ship must ensure that
there is carried on board a ship at all times a copy of the MLC.
(2) The shipowner and master of a ship to which a Maritime Labour
Certificate or interim Maritime Labour Certificate has been issued and has
not expired must ensure that the following documents are carried on board
the ship and posted in a conspicuous place on board where they are
available to seafarers−
(a) the Maritime Labour Certificate or interim Maritime Labour
Certificate for the ship;
(b) if the ship has a Maritime Labour Certificate, Parts 1 and 2 of
the Declaration of Maritime Labour Compliance.
(3) The shipowner and the master of a ship must make the documents
referred to in subregulations (1) and (2) available, upon request, to seafarers
on the ship, to inspectors, and to shipowners’ and seafarers’ representatives.
On-board and on-shore complaint procedure for Gibraltar ships.
42.(1) The shipowner and the master of a Gibraltar ship must ensure that
there is available to a seafarer on that ship a procedure to lodge a complaint
alleging a breach of the requirements of the MLC and for that complaint to
be resolved fairly, effectively and expeditiously.
(2) A procedure to lodge a complaint and have it resolved must−
(a) seek to resolve the complaint at the lowest level possible;
(b) enable a seafarer to complain directly to the master of the ship;
and
(c) include the right of the seafarer to be accompanied or
represented during any hearing which takes place under that
procedure.
(3) The owner and master of a ship must ensure that a seafarer is provided
with−
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(a) a copy of the complaint procedure which is available to the
seafarer in accordance with subregulation (1);
(b) contact information for the certifying authority for the ship;
(c) contact information for authority which is the competent
authority for the inspection and enforcement of the MLC in the
seafarer’s country of residence; and
(d) the name of a person or persons on board the ship who can, on
a confidential basis, provide the seafarer with impartial advice
on their complaint and otherwise assist them in following the
complaint procedure.
(4) A seafarer on a ship may lodge with the Maritime Administrator a
complaint alleging a breach of the requirements of the MLC, and the
Maritime Administrator must treat the source of any such complaint as
confidential.
(5) The owner and master of a ship must ensure that a seafarer is not
subjected to any detriment on the grounds that the seafarer has lodged a
complaint, whether through an on-board procedure or to the Maritime
Administrator, alleging a breach of the requirements of the MLC.
Documentation and complaint procedure requirements for MLC ships.
43.(1) An MLC ship of 500 gross tonnage or over and an MLC ship to
which Regulation 5.1 of the MLC is applied at the request of the shipowner
to the MLC State whose flag the ship flies must comply with the following
requirements of the Maritime Labour Convention−
(a) Standard A5.1.1 paragraph 2 (requirement to have copy of
MLC on board);
(b) Regulation 5.1.3 paragraphs 3 and 4 and Standard A5.1.3
paragraph 12 (Maritime Labour Convention Certificate and
Declaration of Maritime Labour Compliance to be carried on
board ship);
(c) Regulation 5.1.5 and Standard A5.1.5 (On-board complaint
procedures);
(d) Regulation 5.2.2 and Standard A5.2.2 (Onshore seafarer
complaint-handling procedures).
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PART VIA
Subject matter of Part VIA.
43A.(1) This Part lays down rules to ensure that the Administration
effectively discharges Gibraltar’s obligations with respect to the
implementation of the relevant parts of the Maritime Labour Convention,
2006.
(2) This Part is without prejudice to–
(a) Directive 2009/13/EC and Directive 2009/21/EC; and
(b) any higher standards for living and working conditions for
seafarers set out therein.
Interpretation of Part.
43B. For the purposes of this Part, the following definitions shall apply in
addition to the relevant definitions set out in the Annex to Directive
2009/13/EC–
“Administration” means the Maritime Administrator in the case of
Gibraltar, and in other cases the corresponding authority of the
MLC State;
“Directive 2009/13/EC” means Council Directive 2009/13/EC of 16
February 2009 implementing the Agreement concluded by the
European Community Shipowners’ Associations (ECSA) and the
European Transport Workers’ Federation (ETF) on the Maritime
Labour Convention, 2006, and amending Directive 1999/63/EC as
the same may be amended from time to time;
“Directive 2009/21/EC” means Directive 2009/21/EC of the European
Parliament and of the Council of 23 April 2009 on compliance with
flag State requirements EC as the same may be amended from time
to time;
“relevant parts of MLC 2006” means the parts of the Maritime Labour
Convention, 2006 of which the content shall be considered as
corresponding to the provisions in the Annex to Directive
2009/13/EC.
Monitoring of compliance.
43C.(1) The Administration shall ensure that effective and appropriate
enforcement and monitoring mechanisms, including inspections at the
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intervals provided for in the MLC, are established in order to ensure that the
living and working conditions of seafarers on Gibraltar ships and MLC
ships, when in British Gibraltar Territorial waters, meet, and continue to
meet, the requirements of the relevant parts of MLC 2006.
(2) With respect to ships of less than 200 gross tonnage not engaged in
international voyages, the Administration may, in consultation with the
shipowners’ and seafarers’ organisations concerned, decide to adapt,
pursuant to Article II, paragraph 6 of the MLC, monitoring mechanisms,
including inspections, to take account of the specific conditions relating to
such ships.
(3) When fulfilling its obligations under this regulation, the
Administration may, where appropriate, authorise public institutions or
other organisations, including those of a Member State, if the latter agrees,
which they recognise under the MLC as having sufficient capacity,
competence and independence, to carry out inspections.
(4) In all cases under subregulation (3), the Administration shall remain
fully responsible for the inspection of the living and working conditions of
the seafarers concerned on Gibraltar ships and this provision is without
prejudice to the Gibraltar Merchant Shipping (Organisations for Inspection,
Survey and Certification of Ships) Regulations 2011.
(5) The Administration shall establish clear objectives and standards
covering the administration of its inspection systems, as well as adequate
overall procedures for their assessment of the extent to which those
objectives and standards are being attained.
(6) The Captain of the ship and the shipowner shall ensure that every
seafarer on board a ship flying the flag of Gibraltar has access to a copy of
the Agreement implemented by Directive 2009/13/EC and such access may
be provided electronically.
Personnel in charge of compliance monitoring.
43D.(1) The Administration shall ensure that personnel, including staff from
institutions or other recognised organisations authorised to carry out
inspections in accordance with regulation 43C(3) of the MLC and in charge
of verifying the proper implementation of the relevant parts of the MLC,
have the training, competence, terms of reference, full legal authority, status
and independence necessary or desirable-
(a) to enable them to carry out that verification; and
(b) to ensure compliance with the relevant parts of MLC, 2006.
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(2) A person who is authorised to undertake inspections pursuant to this
Part may excise the powers of detention specified in Part VII (Compliance
and enforcement) when exercising a function or duty under this Part.
(3) All authorisations granted under this Part with respect to inspections
shall, as a minimum, empower the certifying authority to require the
rectification of deficiencies that it identifies in seafarers’ living and working
conditions, and to carry out inspections in that regard at the request of a port
State.
(4) The Administration shall establish-
(a) a system to ensure the adequacy of work performed by
recognised organisations, which includes information on all
applicable laws of Gibraltar and Administrative Instructions
and relevant international instruments; and
(b) procedures for communication with and oversight of such
organisations.
(5) The Administration shall–
(a) ensure that the International Labour Office is provided with a
current list of any recognised organisations authorised to act on
its behalf; and
(b) keep this list up to date.
(6) The list referred to in subregulation (5) shall specify the functions that
the recognised organisations have been authorised to carry out.
On-board complaint procedures, handling of complaints and corrective
measures.
43E.(1) The Administration shall ensure that an appropriate on-board
complaint procedure is in place in accordance with these Regulations.
(2) Where the Administration –
(a) receives a complaint which it does not consider manifestly
unfounded; or
(b) obtains evidence that a Gibraltar ship or an MLC ship
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(i) does not conform to the requirements of the relevant
parts of the MLC 2006; or
(ii) there are serious deficiencies in its implementing
measures,
then, the Administration shall take the steps necessary to investigate the
matter and ensure that action is taken to remedy any deficiencies found.
(3) Every person dealing with or becoming aware of complaints shall-
(a) treat as confidential the source of any grievance or complaint
alleging a danger or deficiency in relation to seafarers’ living
and working conditions or a violation of laws and regulations;
and
(b) give no intimation to the shipowner, the shipowner’s
representative or the operator of the ship that an inspection was
made as a consequence of such a grievance or complaint.
PART VII
COMPLIANCE AND ENFORCEMENT
Inspection and detention of Gibraltar, etc. ships.
44.(1) For the purpose of checking compliance with these Regulations of a
ship other than an MLC ship, the Maritime Administrator or a person
appointed under section 56 of the Merchant Shipping (Safety, etc.) Act,
1993 may at all reasonable times go on board a ship and inspect the ship, its
equipment, any article and any document carried on it.
(2) Where the Maritime Administrator or a person appointed under section
56 of the Merchant Shipping (Safety, etc.) Act, 1993 has clear grounds for
believing that−
(a) a ship other than an MLC ship is in contravention of a
provision of these Regulations, or of a determination,
exemption or approval made or authorisation or permission
given by the Maritime Administrator in accordance with these
Regulations; or
(b) a person is working on a ship other than an MLC ship in
contravention of a provision of these Regulations, or of a
determination, exemption or approval made or authorisation or
permission given by the Maritime Administrator in accordance
with these Regulations,
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that ship is liable to be detained.
Inspection and detention of MLC ships.
45.(1) The Maritime Administrator and a person appointed under section 56
of the Merchant Shipping (Safety, etc.) Act, 1993 may review the Maritime
Labour Certificate and Part 1 and Part 2 Declaration of Maritime Labour
Compliance of an MLC ship or the interim Maritime Labour Certificate of
an MLC ship.
(2) Where standard A5.2.1(a) to (c) or (d) of the MLC applies to an MLC
ship, the Maritime Administrator and a person appointed under section 56 of
the Merchant Shipping (Safety, etc.) Act, 1993 may carry out a more
detailed inspection of the ship to ascertain the working and living conditions
on board the ship.
(3) Where−
(a) the Maritime Administrator believes that the working and
living conditions on board an MLC ship are defective; or
(b) the working and living conditions on board a ship have been
alleged to be defective;
and that defect could constitute a clear hazard to the safety, health or
security of seafarers or a serious breach of the requirements of the MLC, the
Maritime Administrator and a person appointed under section 56 of the
Merchant Shipping (Safety, etc.) Act, 1993 may carry out a more detailed
inspection of the ship to ascertain the working and living conditions on
board the ship.
(4) Where the Maritime Administrator or a person appointed under section
56 of the Merchant Shipping (Safety, etc.) Act, 1993 inspects an MLC ship
and has clear grounds for believing that−
(a) the ship does not comply with the requirements of the MLC;
and
(b) the non-compliance represents−
(i) a significant danger to the safety, health or security of
seafarers, or
(ii) a serious or repeated breach of the requirements of the
MLC,
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the ship is liable to be detained.
Offences and penalties.
46.(1) Any person, other than the Maritime Administrator, is guilty of an
offence if that person fails without reasonable cause to comply with a
requirement of these Regulations, and is liable on summary conviction to a
fine not exceeding level 5 on the standard scale.
(2) Any person is guilty of an offence if that person fails without
reasonable cause to comply with a requirement of a determination,
exemption, exception or approval made or authorisation or permission given
by the Maritime Administrator in accordance with these Regulations, and is
liable on summary conviction to a fine not exceeding level 5 on the standard
scale.
(3) If a ship to which regulation 33 applies proceeds or attempts to
proceed to sea or on a voyage or excursion without a valid Maritime Labour
Certificate and Part 1 and Part 2 Declaration of Maritime Labour
Compliance or a valid interim Maritime Labour Certificate, the shipowner
and the master of the ship is guilty of an offence and liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
(4) Any person who−
(a) intentionally alters a Maritime Labour Certificate or interim
Maritime Labour Certificate;
(b) intentionally makes a false Maritime Labour Certificate or
interim Maritime Labour Certificate;
(c) in connection with any inspection undertaken in accordance
with these Regulations knowingly or recklessly furnishes false
information;
(d) with intent to deceive, uses, lends, or allows to be used by
another, a Maritime Labour Certificate or interim Maritime
Labour Certificate; or
(e) fails to surrender a Maritime Labour Certificate or interim
Maritime Labour Certificate as directed in accordance with
regulation 37;
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(f) obstructs the Maritime Administrator or a person appointed
under section 56 of the Merchant Shipping (Safety, etc.) Act,
1993 in the exercise of his powers under regulation 44 or 45;
is guilty of an offence and is liable on summary conviction to a fine not
exceeding level 5 on the standard scale.
(4) In any proceedings for an offence under this regulation, it is a defence
for the person charged to prove that all reasonable steps had been taken by
that person to ensure compliance with the requirement in question.
Consequential amendment.
47. In regulation 2 of the Merchant Shipping (Port State Control)
Regulations 2011, after paragraph (h) of the definition of “Conventions”
insert the following paragraph−
“(i) the Maritime Labour Convention, 2006,”.
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SCHEDULE
MEDICAL CERTIFICATES
Applications for and issuing of medical certificates.
1. If−
(a) an application for a medical certificate is made to an approved
medical practitioner;
(b) a reasonable fee charged by that approved medical practitioner
has been paid; and
(c) the medical practitioner has examined the person to whom the
application relates in accordance with the ILO/WHO
Guidelines for Conducting Pre-Sea and Periodic Medical
Fitness Examinations for Seafarers, as currently in force, and
any other applicable international guidelines published by the
International Labour Organisation, the International Maritime
Organisation and the World Health Organisation, and
considers that person to be fit to perform the duties which that
person will carry out at sea;
the medical practitioner must issue that person with a medical certificate
2. The Maritime Administrator may−
(a) having consulted shipowners and seafarers’ organisations; and
(b) having had regard to;
further determine the nature of the medical examination to be conducted in
accordance with paragraph 1.
3. If a person is employed as a seafarer, or has been offered employment as
a seafarer, at the time an application is made for a medical certificate under
paragraph 1, the person’s employer must ensure that the application is made
and processed at no cost to the person to whom it relates.
Review of medical practitioner’s decision.
4. A person who has been refused a medical certificate or who has had a
restriction imposed on such a certificate and who−
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(a) has applied to the Maritime Administrator, within one month
of that refusal or imposition of a restriction, for review of that
decision;
(b) has included in that application the name of the medical
practitioner who refused the certificate or imposed the
restriction;
(c) has consented to the disclosure by that medical practitioner of
the information on which that refusal or imposition of a
restriction was based;
may have the matter reviewed by an independent medical practitioner
appointed by the Maritime Administrator.
5. An independent medical practitioner appointed by the Maritime
Administrator in accordance with paragraph 4 must−
(a) examine the person to whom the application relates in
accordance with the ILO/WHO Guidelines for Conducting Pre-
Sea and Periodic Medical Fitness Examinations for Seafarers,
as currently in force, and any other applicable international
guidelines published by the International Labour Organisation,
the International Maritime Organisation and the World Health
Organisation; and
(b) if the medical practitioner, exercising full professional
independence, considers that person to be fit to perform the
duties which that person will carry out at sea, must issue that
person with a medical certificate, and include in that certificate
any restrictions or conditions appropriate to that person’s
medical condition and the duties which that person is to carry
out at sea.
Interpretation.
6. In this Schedule−
“approved medical practitioner” means−
(a) a medical practitioner entitled to practise in Gibraltar, and
approved for the purpose of issuing medical certificates by the
Maritime Administrator;
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(b) a medical practitioner approved by the Secretary of State to
issue medical fitness certificates to seafarers;
(c) in the case of a certificate solely concerning eyesight, a person
approved by the Maritime Administrator as a person qualified
to issue such a certificate.
“medical certificate” means a certificate−
(a) in a form approved by the Maritime Administrator and
containing the information determined by the Maritime
Administrator to be required;
(b) valid−
(i) unless it relates only to the certification of colour vision,
for a maximum period, starting on the date of the
medical examination, of one year in respect of a person
under 18 years of age and two years in respect of any
other person,
(ii) if it relates only to the certificate of colour vision, for a
maximum period of six years,
(iii) for such shorter period as is specified on the certificate,
(a) restricted to such capacity of sea service or geographical areas
as are recorded on the certificate by the medical practitioner,;
(b) subject to such conditions as are recorded on the certificate by
the medical practitioner.
