On May 28 2015 the Maritime Labour Convention 2006 will come into force in Argentina – 12 months after its ratification. It will add a new component to existing legislation in the sector.
The convention, which entered into force in 2013, consolidates existing International Labour Organisation conventions and constitutes one of the main international maritime instruments together with the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution From Ships (MARPOL) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).
The convention sets a minimum yardstick regarding the working and living conditions of seafarers. The main issues addressed by the convention are:
- the minimum requirements for seafarers to work on a ship;
- conditions of employment;
- recreational facilities;
- food and catering;
- health protection;
- medical care; and
- welfare and social security protection.
The convention applies to ships (other than fishing vessels) of 500 gross tonnage or more engaged in international voyages and ships of 500 gross tonnage or more that fly the flag of a convention member and operate from a port or between ports in another country.
The convention establishes the responsibility of members to fully implement and enforce the principles, rights and obligations set out therein. Flag states will adopt a system for the inspection and certification of maritime labour conditions in compliance with the convention. Further, all foreign-flagged vessels calling to the port of a member may be subject to inspection in accordance with the convention and irrespective of whether the flag state has ratified the convention, in which case such vessels are obliged to provide documentary evidence of compliance with convention standards. However, port state obligations include not only inspections, but also taking positive action towards the protection of seafarers (eg, pursuant to Regulation 4(1)(3), each member shall ensure that seafarers onboard ships in its territory who are in need of immediate medical care are given access to medical facilities onshore).
States are expected to comply with the international standards set out in the convention. If that is not the case, an issue regarding the enforcement and implementation of standards may rise.
While flag states hold the primary responsibility for ensuring compliance, the lack of control of flag of convenience states could be compensated for by the intervention of port states acting as inspectors. In this regard, the Coast Guard and the Ministry of Labour, Employment and Social Security signed a cooperation agreement on March 17 2015 to fulfil prospectively state obligations as a member of the convention.
Since Argentina is party to the United Nations Convention on the Law of the Sea, SOLAS and STCW, it would not be unusual that an action could be brought before the Argentine courts in which Argentina, as the port state, failed its obligations under the convention. Such a violation would be a matter of judicial scrutiny and there would be the potential risk that a court may order the detention of the vessel.
Under Argentine law, seafarers' rights and obligations are set out in several acts, such as the Labour Contract Act (20.744/1976), the Navigation Act (20.094/1973), the Commercial Code and a number of regulations that address each of the seafarer sectors. The convention will stand mandatorily above this legislation in accordance with Section 22, Article 75 of the Constitution. As a consequence, the convention will have full effect without any need for transposition through domestic law (ie, it will be incorporated at a national level with direct enforcement).
Further, according to national law, any violation of seafarers' rights gives rise to a maritime lien, whether it is for wages, death, personal injury claims or any other cause. The issue is whether this rule is applicable to foreign flag vessels. According to the Navigation Act, the characterisation of a maritime lien is dictated by the law of the flag state. However, it is irrelevant whether the claimant would have had a maritime lien under its local law had the Argentine court refused such an application when this was manifestly incompatible with the public policy of the forum. This seems to be the case following the strong public policy governing the field of labour law in Argentina and now reinforced by the convention.
The convention applies to all seafarers, defined as anyone who is employed, is engaged or works in any capacity on board a ship to which the convention applies. There may be situations in which it is unclear whether an employee is a seafarer. This is the case for dock workers temporarily employed on a vessel in port and licensed pilots. While most jurisdictions tend to exclude them, further clarification is expected from Argentine legislation in this regard.