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LP 13/2020 Extension of Sea Service Period Under the COVID-19 Impact

2020-02-19

The WHO has declared the novel coronavirus outbreak a public health emergency of international concern (PHEIC) on January 31 as the virus continues to spread globally. Measures have been taken around the world to restrict inbound passengers/seafarers, especially those with Chinese nationality or those have visited Chinese ports. Crew replacement is suspended by some shipowners as a measure of prevention and control, which however, poses a risk of violating the statutory requirements under the Maritime Labour Convention (the MLC, 2006) as their crew may be serving beyond their contract period.

I.   Regulation on SEA in the MLC 2006

It’s not stipulated in the MLC, 2006 that the maximum duration of seafarer’s service periods on board should be less than 11 or 12 months.

Standard A2.1.4 (g): the termination of agreement depends on whether the agreement has been made for an indefinite or a definite period and the conditions are negotiable between both parties.

Standard A2.4: seafarers are entitled to a minimum of 2.5 calendar days’ paid annual leave per month of employment. Any agreement to forgo the minimum annual leave with pay prescribed in the Standard, except in case provided for by the competent authority, shall be prohibited.

In the case of extended service period, the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment and the entitlement shall not be declined unless otherwise provided by the competent authority.

Standard A2.5.1.2 (b): the maximum duration of service periods on board following which a seafarer is entitled to repatriation – such periods to be less than 12 months. This does necessarily mean that seafarers must be repatriated and they are also entitled to extend their service periods.

II.   ILO Standard Department FAQ concerning SEA

Q: C2.1.j. Does the MLC, 2006 set a maximum limit in the length of an employment agreement?

A: The MLC, 2006 does not set a maximum period for a contract of employment. In fact, Standard A2.1 envisages SEAs of an indefinite period. However, the interaction between Standard A2.5 and A2.4 establishes some limitations on the period of continuous service on board a ship or ships. The specific limits will include questions such as whether the competent authority has decided in some cases to permit seafarers to forgo their minimum paid annual leave or to whether a seafarer has chosen not to exercise her or his right to be repatriated are matters for national law and practice, including applicable collective agreements.

Q: C2.1.k. Can a seafarer sign consecutive SEAs that cover a period longer than 12 months?

A: Yes. However, the period of continuous service on board a ship or ships would still be subject to the applicable national requirements that seafarers be given minimum paid annual leave and the right of a seafarer to be repatriated after a maximum period of service on board. These are matters for national law and practice, including applicable collective agreements.

Q: C2.5.g. Can a seafarer decide not to exercise a right to be repatriated when that entitlement arises?

A: A seafarer could choose not to exercise this entitlement when it arises (unless the flag State law prohibited such a choice being made). At the same time, the flag State also has to take account of its obligation under Regulation 2.4 and the Code to require that seafarers are given at least the minimum period of paid annual leave.

III.   Impact on PSC Inspections

Australia Maritime Safety Authority (AMSA) has issued Marine Notice 18/2014 and 17/2016 to advise vessel owners and seafarers of the maximum period of shipboard service for seafarers. In accordance with what was provided under Standard A2.4 and A2.5.2, the MLC, 2006 requirements can be read as indicating that the maximum continuous period that a seafarer should serve on board a vessel without leave is 11 months.

On this basis, AMSA inspectors will verify compliance with the maximum continuous service period during a more detailed inspection. Where inspectors identify that a seafarer has served on board a vessel for more than 11 months, but less than 13 months and this occurred with the full consent of the seafarer and in accordance with any flag State requirements, the non-compliance will be brought to the attention of the master and the vessel owner, with an expectation that the non-compliance will be rectified at the earliest possible opportunity.

Where inspectors identify that a seafarer has served on board a vessel for more than 13 months, or in cases of systemic breaches, steps will be taken to ensure that the ship shall not proceed to sea until the non-conformities have been rectified, or until the inspector has accepted a plan of action to rectify such non-conformities and is satisfied that the plan will be implemented in an expeditious manner.

Overall, it has been recognized throughout the shipping industry, especially in PSC inspections that the maximum continuous service period on board a ship is 11 months.

IV.   Regulations in countries where Members’ ships are registered

1.      China

In accordance with The Administrative Measures on the Working and Living Conditions on board Ships for Seafarers by the Ministry of Transport of People’s Republic of China, there’s no requirement on the maximum duration of SEAs. Seafarers’ entitlement to annual leave with pay and repatriation are compliant with the MLC requirements.

Some more detailed regulations are established in The Collective Bargaining Agreement for Chinese Crew (A). Yet none of the provisions forbids both parties of the contract to extend SEA service periods. Relevant requirements include:

Article 11 Seafarers’ continuous service periods on board shall not, in general, exceed eight months. Such periods may be extended or reduced by two months due to inconvenience of replacing seafarers in the ports to be called or along the routes to be followed. It shall be regarded as overdue when a seafarer is unable to sign off the ship after ten full months’ service on board. For seafarers’ overdue period of service on board, the shipowner shall pay an extra increment to seafarers’ wages from the 11th month. And such extra increment shall not be less than 100% of the seafarer’s basic wages.

Article 22 Shipowners shall ensure a minimum of 40 days’ rest and vacation for seafarers who have worked on board continuously for more than eight months. In case a seafarer has served an extended period, the continuous rest and vacation period shall be extended accordingly.

Since the National Health Commission of China designated the coronavirus outbreak a Class B infection applying Class A management on January 20, port authorities of all levels have responded by stepping up control and suspending formalities for crew replacement. Later on February 5, MSA issued a notice regarding ship management during the outbreak to allow the extension of surveys/inspections/audits and validity of statutory certificates for Chinese-flagged inland-shipping vessels, no administrative penalties will be levied.

2.      China (Hong Kong SAR)

In view of the COVID-19 outbreak, the Hong Kong Marine Department (HKMD) issued Circular SD/MMO/505/3(6) on February 7 to draw the attention of shipowners/ship managers/masters that an extension of a seafarer’s service period can be exercised pursuant to section 3A of the Merchant Shipping (Seafarers) (Repatriation) Regulation (Cap.478Q), provided that such extension is agreed by the seafarer voluntarily in writing. Such extensions should also be set out properly in the crew agreement, and should be submitted to HKMD within 28 days after signing in accordance with the requirement as stipulated in section 6 of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation (Cap.478L).

Cap.478Q Section 3A a seafarer is entitled to be repatriated under the circumstances that he/she has served on board the ship consecutively for –

(i)     11 months; or

(ii)    Any longer period agreed to by the seafarer in writing.

Cap.478L Section 6 delivery of crew agreement and copies

The employer shall, within 28 days of the date on which a crew agreement is made or any agreement is added to those contained in a crew agreement or, if it is not practicable within that period, as soon as practicable thereafter, deliver to the Superintendent a copy of the crew agreement and of any agreement so added.

3.      Panama

The Panama Maritime Authority (PMA) has recently issued MMN-03/2020 to make an exemption to Standard A2.4.3, and Standard A2.5.1.2(b) of the MLC, 2006.

Seafarers are allowed to serve on board after expiry of 12-month SEA with the right to have their annual leave with pay and to be duly repatriated by the end of the extension. Extension/exemptions will be granted through an Authorization Letter issued by SEGUMAR Offices after the Owner submits a request attached with the copy of Crew List and the SEA of each seafarer requesting the extension.

The exemption given will be reviewed within a period of one month in which it will be decided whether the exemption granted is maintained or terminated.

4.      Marshall Islands

Marine Notice No.7-052-2 establishes the maximum period of shipboard service for seafarers under the MLC, 2006. The Administrator has determined that a seafarer may serve on board a vessel for a period of 11 months or more under the following circumstances:

(i)     seafarers serving a full 12 months to qualify for the minimum 30 days paid leave;

(ii)    cadets in order to finish their sea time or onboard training in accordance with their training agreements;

(iii)   seafarers in industry sectors (yachting and offshore) where rotational crews are standard business practice; and

(iv)   seafarers who have mutually agreed in writing to extend their time on board. Any such extensions must be in the form of an addendum to the original SEA. Shipowners are reminded of the dangers of fatigue if extending the service period to over 12 months.

5.      Tuvalu

Marine Circular MC-2/2020/1 regarding extension of seafarers’ employment agreement service period due to outbreak of novel coronavirus provides that a seafarer’s service period may be extended on condition that any such extension is:

(i)     agreed by the seafarer voluntarily in writing; and

(ii)    is properly set out in the SEA which shall be in accordance to the Tuvalu Merchant Shipping (Maritime Labour Convention 2006) Regulations.

6.      Singapore

Merchant Shipping (Maritime Labour Convention) Act 2014 –

Section 22 (1) A seafarer shall be entitled to paid annual leave, taken at such time as may be agreed between the seafarer and the shipowner in accordance with the terms of the seafarer’s employment agreement, of no less than 2.5 days per month of continuous service.

Section 23 (1) No person who employs a seafarer on a ship shall require the seafarer to work for a period of 12 months or longer before being entitled to repatriation.

Also, MPA has announced recently that, in view of the COVID-19 situation, it will allow shipping companies to extend SEA with the crew’s consent in writing. Seafarers’ entitlement to paid annual leave and repatriation should follow the MLC, 2006 requirements and employment details of the affected seafarers should be provided to MPA in written forms.

7.      Liberia

Marine Notice MLC-003 provides in Article 3.5.4 that any agreement to forgo the minimum annual leave with pay shall be prohibited, except in cases provided by the Administration. The maximum period that a seafarer can serve on board a ship is 11 months before taking minimum paid annual leave. This is also linked to the requirement in Standard A2.5, paragraph 2(b), regarding the entitlement to repatriation in a period of less than 12 months.

V.   Advice to Members

Strict requirements on seafarers’ right of paid annual leave and repatriation are applied in most port states and flag states. A maximum service period of 11 months is widely acknowledged. For Members that plan on changing crew during the epidemic, the Club would like to offer some advices.

1.  Be aware of the requirements on crew disembarkation and replacement at the next port of call and make plans accordingly. Try not to have crew whose contract period is about to expire and do not change crew in affected ports.

2.  The company could arrange health examination for relieving seafarers before they get on board. The seafarer should isolate himself and keep a record of his daily temperature after the examination and before the boarding date. Keep local authority and the company updated and report immediately if there’s any problem.

3.  In the case where the company is unable to change crew due to the epidemic and in order to extend the current crew’s service period, it should first have the consent of the crew in writing and revise the extended contract with clauses clearly providing his entitlement to paid annual leave and repatriation. An application should then be filed to the flag state for approval with justification on the reason of such extension and the following step to be taken.

4.  After obtaining the approval by the flag state, the master should keep the documents in case of any future inspections.

5.  The company should make it clear that the extension is allowed only if the master has comprehensively appraised the crew’s physical and mental health. During the extended period, the master should also consider that the crew might be experiencing fatigue.

6.  Even with the approval of the flag state, take the port state requirements into account as AMSA for example, identifies the situation where a seafarer serves on board for more than 13 months as non-compliance.

 

For further consultation, please contact your manager at the Club.

 

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