The Royal Decree 1737 / 2010, of 23 December, which approves the regulatory regulation of inspections of foreign ships in Spanish ports, incorporated into the Spanish legal system directive 2009/16/EC of the European Parliament and of the Council of 23 April, on the control of ships by the port State.
The object of the aforementioned Royal Decree is to regulate in a harmonized way inspections which must be run foreign ships that call in Spanish ports, in order to significantly reduce the number of vessels that fail to comply with the regulations established through the application of the measures which contains own standard.
Subsequently, approved Directive 2013/38/EU, the European Parliament and the Council, on August 12, 2013, amending Directive 2009/16/EC. The amendment aims to include references to the 2006 maritime labour Convention (MLC 2006), adopted by the International Labour Organization (ILO) on February 23, 2006, between international regulations whose implementation and compliance must be verified by the competent authorities of the coastal States of the European Union to realize the control of foreign ships entering its ports.
The MLC 2006 aims to gather and articulate in a single, coherent instrument all rules and updated precepts of the international conventions and recommendations applicable maritime labour, as well as the fundamental principles of other international conventions on labor.
The MLC 2006 establishes rules of maritime labour for all the people of sea-meaning that any person who is employed or engaged or works in any capacity on board a ship which applies this Convention, in accordance with the provisions of article II, 1, f) of the same-, irrespective of his nationality or of the flag State in which they provide their services. It also contains implementation rules that define the responsibilities of States exercising the obligations of control by the port State, which must check the compliance of the MLC 2006 by merchant ships entering its ports, in order to ensure the safety and health of the crews of the ships and avoid distortions of competition.
In this sense it should be clarified that, under any circumstances, the measures to be taken to implement the Directive 2013/38/EU can serve justification so that Member States to reduce the general level of protection of the members of the crew working aboard vessels of Member States, taking into account the regulations of the applicable European Union labor.
It is important to note also that the Directive 2013/38/EU not only concerning substantive aspects of the MLC 2006, but that it also reflects everything that refers to the processing of complaints on Earth in relation to the precepts of the Convention.
Finally, agrees to show that, although are attributed to the Commission broad powers of implementation in this area, these can never be an obstacle for the exercise of the functions of the inspectors of the State port in their professional opinion, or for the performance of the competences of the Ministry of public works with the flexibility that establish own directive 2009/16/EC and 2013/38/EU.
This Royal Decree is intended to incorporate into the Spanish legal system Directive 2013/38/EU, of the European Parliament and Council on August 12, 2013, amending Directive 2009/16/EC on the control of ships by the port State.
By virtue, on the proposal of the Minister of promotion, with the prior approval of the Minister of finance and public administration, in accordance with the Council of State and after deliberation by the Council of Ministers at its meeting on December 5, 2014, available: single article. Amending the regulation which regulates inspections of foreign ships in Spanish ports, approved by the Royal Decree 1737 / 2010, of 23 December.
The regulation which regulates inspections of foreign ships in Spanish ports, approved by the Royal Decree 1737 / 2010, of 23 December, is to be re-worded as follows: one. The following changes are introduced in article 2: to) is suppressed the letter g) of paragraph 1.
((((b) add the following letters i), j) and k) to paragraph 1 of article 2: «i) the 2006 maritime labour Convention (MLC 2006).»
j) the International Convention on the control of harmful anti-fouling systems on ships 2001 (AFS 2001).
«k) the International Convention on civil liability for damage due to pollution by hydrocarbons to fuel ships, 2001 (Bunkers Convention 2001).»
(c) points 23 and 24 following paragraph 2 of article 2 are added: ' 23) maritime labour certificate: the certificate referred to in rule 5.1.3 of the MLC 2006.»
«(24) Declaration of maritime labour compliance: the Declaration referred to in rule 5.1.3 of the MLC 2006.»
Two. (4) of article 3 is drawn up as shown below: «4. When you inspect a vessel flying the flag of a State which is not a party to a Convention, the Ministry of public works will ensure that not are given to that vessel or crew more favourable treatment that it accords to a vessel flying the flag of a State that is party to the Convention. " «The ship in question will be subject to a more detailed inspection following procedures established by the memorandum of understanding on the control of the State of the port, signed in Paris on 26 January 1982 (Paris MDA).»
3. A new paragraph 6 is added to article 3 with the following wording: «6. measures taken to give effect to the provisions of this regulation do not imply a reduction in the general level of protection of the members of the crew to use the social law of the European Union in the fields in which apply this regulation, in relation to the situation previously existing in Spain.»
If the Ministry of development, to implement these measures, have knowledge of a violation of European Community legislation on Board of vessels flagged in a Member State of the European Union it shall immediately inform the competent authority of that Member State to undertake actions deemed coming.»
Four. Added two new paragraphs 3 and 4 to article 17, with the following lines: «3. If at the end of a more detailed inspection determines that the conditions of life and work on board a vessel are not compliant with the requirements of the MLC 2006, the inspector shall immediately deficiencies to the captain of the ship, letting know you the deadline for rectification. "
In the event that the inspector considers that such deficiencies are significant, or if they relate to a possible complaint in the context of annex V, part at point 19 of the CTM, the inspector shall report deficiencies to associations or Spanish maritime personnel and shipping companies professional associations and may, in addition, notify a representative of the flag State and provide relevant information to the competent authorities of the next port of call.
4. with regard to questions concerning the MLC 2006, the Ministry of public works may send a copy of the inspector's report, accompanied by the replies of the competent authorities of the flag State, to the Director General of the international of the Labour Organization (ILO), so the action deemed appropriate and necessary in order to ensure that such information is registered and which is put into knowledge of parties that may be interested in making use of relevant resources and actions."
5. Paragraph 2 of article 18 is worded in the following way: «2. should not be disclosed to the master or the shipowner the identity of the complainant. " «The inspector shall take the necessary measures to ensure the confidentiality of complaints by members of the crew, including those intended to ensure confidentiality during any interrogation carried out them.»
6. Inserts a new article 18 bis with the following content: «article 18 bis.» Procedures for complaints on Earth related to the MLC 2006.
1.Toda complains about a member of the crew of a ship that makes into a Spanish port scale relative to non-compliance with the requirements of the MLC, 2006 (including the rights of members of the crew) may be made to an inspector of the harbour. In such cases, the inspector must undertake an initial investigation.
2. within the framework of the original investigation, if it is coming and taking into account the nature of the complaint, should be reviewed if the grievance Board handling procedures set out in rule 5.1.5 of the MLC 2006 have been followed. The inspector may also carry out a more detailed inspection in accordance with article 13 of this regulation.
3. If possible, the inspector must ensure that the complaint is solutions onboard the ship.
4. in the event that the investigation or the inspection put highlighted a breach of article 19 of this regulation concerning the provisions of this article shall apply.
5 when not implementing paragraph 4 above and the complaint lodged has not solved on board ship, the inspector will ask, immediate way, advising the State flag of the vessel, as well as the elaboration of an action plan to correct the breach within a specified period. A full verified inspection report will be sent electronically to the database of inspections referred to in article 25.
6. the complaint has not been corrected after having proceeded in accordance with the provisions of the preceding paragraph, the Ministry of public works shall transmit to the Director-General of the ILO a copy of the inspector's report. The report shall be accompanied by the replies of the competent authorities of the flag State in time. Also be informed regarding organizations or Spanish associations which group together or represent the maritime staff and shipping companies.
Also the Ministry of public works shall submit periodically to the Director-General of the ILO statistics and information relating to the complaints that have been resolved for the purpose of enabling that I will keep track of these statistics and information and communicate to the parties its existence, including organizations or Spanish associations which group together or represent the maritime staff and shipping companies that may be interested in making use of relevant resources and actions.
7. the provisions of this article are understood without prejudice to the provisions of article 18. Paragraph 2 of article 18 shall also apply to complaints concerning matters which regulates the MLC 2006.»
7. The following changes are introduced in article 19: a) is inserted a new paragraph 2. bis) in article 19, along the following lines: «(2. bis) when the conditions of life and work on board the ship are clearly hazardous to safety, health or the protection of its crew or there are deficiencies that constitute a violation serious or repeated of the precepts of the MLC 2006 (including the rights of members of the crew)» the Harbour will proceed to immobilize the ship inspected or to stop the operation in which deficiencies have been observed.
It will not rise immobilization or detention of an operation until these deficiencies are resolved, or until the harbourmaster has accepted a plan of action to rectify them and are certain that this plan will be implemented promptly. Before accepting a plan of action, the harbour master may consult the flag State.»
(b) paragraph 6 of article 19 is worded in the following way: "6. in the event of immobilization of the vessel, the Ministry of public works shall forthwith all the circumstances in which is considered it necessary to intervene, in writing and including the report of inspection, the administration of the flag State or, when this is not possible, the Consul or, in his absence» , to the nearest diplomatic representation of that State. In addition, where appropriate, be informed also designated inspectors or recognised organisations responsible for the issue of certificates of classification or statutory certificates in accordance with the conventions.
If it prevents the ship set sail because of a serious or repeated breach of the requirements of the MLC, 2006, including an infringement of the rights of his crew, or because the conditions of life and work on board are clearly hazardous to safety, health or the protection of the crew, the Ministry of public works shall forthwith to the flag State will be invited to be present, if possible, a representative of the same, and shall request that State to respond within a specified time, informing, in addition, immediately to organizations or Spanish associations which group together or represent the maritime staff and shipping companies.»
8. The following changes are introduced in annex I, section II, point 2B.
(a) the fifth indent is worded as follows: 'the vessels which have been subject of a report or complaint, including complaints made on Earth by the master, a crew member or any person or entity with legitimate interest in the safety of operation of the vessel, the conditions of life and work on board or the prevention of pollution except that the General Directorate of the merchant marine consider manifestly unfounded such reports or complaints."
(b) add a last indent worded as follows: 'The vessels for which agreed an action plan to rectify the shortcomings referred to in article 19, paragraph 2 bis, but whose implementation has not been supervised by an inspector.'
9. Annex IV is amended as described below: a) numbers 14, 15 and 16 are written as follows: "14. Medical certificates (see MLC 2006).
15. indicative of the Organization of the work table on Board (see the 2006 CTM and the STCW 78/95).
«16 records of hours of work and rest of the crew (see MLC 2006).»
(b) paragraphs 45, 46, 47 and 48 following added: "45. Maritime labour certificate.
46. the Declaration of maritime labour compliance, parts I and II.
47. international anti-fouling system certificate.
48 policy of insurance or other financial security relating to civil liability for damage due to pollution by hydrocarbons.»
10. In annex V, letter A, the following points are added: '16. Documents required under the MLC 2006 do not arise, are not in order or its content is false either documents do not include the information required by the MLC, 2006, or lack of validity for other reasons.
17. the conditions of life and work on board the ship do not conform to the requirements of the MLC 2006.
18 there are grounds to believe that the flag State has been changed in order to evade compliance with the provisions of the MLC 2006.
19 there is a complaint that certain conditions of life and work on board the ship do not conform to the requirements of the MLC 2006.»
Eleven. Annex X is amended as described below: to) in item 3, paragraph 3.10 title happen to be: «Areas covered by the MLC 2006».
(b) add the following numbers to the paragraph 3.10 of annex X: «8. conditions on board clearly hazardous to safety, health or the protection of the crew of the ship. "
«9. the failure to comply with these requirements constitutes a serious or repeated violation of the precepts of the MLC 2006 (including a breach of the rights of seafarers) relating to conditions of life and work of the crew aboard the vessels as set out in the maritime labour certificate and the Declaration of maritime labour compliance.»
First additional provision. Reference changes.
All the references that the regulatory regulation of inspections of foreign ships in Spanish ports made to conventions, international codes and resolutions, including those relating to certificates and other documents will be considered made such conventions, international codes and resolutions in their updated versions.
Second additional provision. Personnel expenses.
The activities to be performed as a result of the application of this Royal Decree do not behave increase troop pay or other staff costs.
Sole repeal provision. Repeal legislation.
Shall be repealed all provisions of equal or lower rank insofar as they oppose, contravene or are incompatible with the provisions of this Royal Decree.
First final provision. Skill-related title.
This Royal Decree is issued under cover of the provisions of article 149.1.20. ª of the Constitution, which attributes to the State the exclusive competence in the field of merchant shipping.
Second final provision. Incorporation of European Union law.
By this Royal Decree joins domestic Directive 2013/38/EU, of the European Parliament and Council on August 12, 2013 by amending Directive 2009/16/EC on the control of ships by the port State.
Third final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, on December 5, 2014.
The Minister of promotion ANA MARÍA PASTOR JULIÁN