Solicitud directa (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee notes the Government’s first report. It draws the Government’s attention to the following points.

Article 1, paragraph 1, of the Convention. Seagoing ships. The national legislation classifies ships according to their zone of activity. Accordingly, seagoing ships are ships which are active in the maritime zone. The Committee requests the Government to indicate whether publicly owned ships employed for commercial purposes which are active in the maritime zone are also regarded as seagoing ships and are consequently subject to the application of the provisions of the Convention.

Article 1, paragraph 4. Small vessels. The Committee requests the Government to indicate any decisions taken by the competent authority, in consultation with the most representative organizations of shipowners and seafarers, to exclude small vessels from the scope of the Convention.

Article 2(a)(i). Safety standards. Hours of work. Peru has not ratified the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180). Supreme Decree No. 028-DE/MPG of 25 May 2001 does not contain provisions on this subject and the Government has not provided information in its report. The Committee therefore requests the Government to indicate the manner in which the hours of work of seafarers are regulated.

Article 2(a). (Conventions referred to in the Appendix to Convention No. 147, but not ratified by Peru).

–      Convention No. 92. In accordance with paragraphs 120, 174 and 175 of the General Survey by the Committee of Experts on the Application of Conventions and Recommendations “Labour standards on merchant ships”, 1990, “the substantive safety standards in Convention No. 92 seem to include those requiring adequate security, protection against weather an insulation in respect of the location, means of access, structure and arrangement in relation to other spaces of crew accommodation, having regard, amongst other things, fire prevention needs (Article 6(1) and (8)); adequate ventilation of sleeping and mess-rooms (Article 7(1)); an adequate system of heating, avoiding the risk of fire or other danger (Article 8(1) and (6)); adequate lighting (Article 9(2)); the normal situation of sleeping rooms amidships or aft above the load line (Article 10(1)); sufficient sanitary accommodation, ventilated and with adequate disposal pipes (Article 13(1), (8) and (10)); an approved medicine chest and, where a crew of 15 or more is carried, separate hospital accommodation (Article 14(1) and (7)). It may be considered that in order to ‘ensure the safety of life on board ship’ further requirements should also be included. The measures laid down in Convention No. 92 to ensure the implementation of those standards are of the kind laid down also in Convention No. 147, especially the enactment of legislation on substantive questions and consultation of shipowners and seafarers in the framing and administration of them (Article 3(2)(e)); and inspection of crew accommodation by the competent authority on registration or re-registration of the ship and when a complaint is received (Article 5) and by the responsible officer and crew members at least once a week (Article 17). In addition, Convention No. 92 provides for the approval of plans in advance (Article 4), as well as detailed requirements relating to the construction, equipment, decoration and furnishing of all aspects of crew accommodation and recreation space”.

Supreme Decree No. 028-DE/MPG only contains general provisions respecting prior approval of plans of ships under construction. With regard to crew accommodation, section 13.1.1 of the resolution of the Directorate No. 562-2003/DCG of 5 September 2003 approving the Code for the Safety of Equipment for Ships and Naval, Maritime, River and Lake Vessels provides that, according to the number of the passengers and crew members, maritime ships and vessels shall provide for each berth a mattress or covering (colchoneta), a pillow, two fitted sheets, two pillow covers and, where appropriate, two blankets. Ships shall also carry a gas cooker (section 13.1.2) and a set of kitchen utensils (section 13.1.3) and each crew member shall have the right to a flat plate, a deep plate, a cup and a set of cutlery (section 13.1.4). The text provides that berths shall be clean and of appropriate dimensions to allow the crew member or passenger to “stretch out in full”. The Resolution also contains provisions on the insulation of mess rooms (in the context of fire prevention), and also provides that an emergency medicine chest shall be carried on board.

In view of their limited content, the provisions of the national legislation cannot be considered as being substantially equivalent to the provisions of Convention No. 92. The Committee therefore requests the Government to amend the national legislation so as to bring it into substantial equivalence with the provisions of this Convention, and, in particular, to provide for: detailed requirements respecting the construction, equipment, decoration and furnishing of crew accommodation; recreation spaces, as well as adequate ventilation of sleeping and mess-rooms (Article 7, paragraph 1); an adequate heating system, placed so as to avoid the risk of fire or other danger (Article 8, paragraphs 1 and 6); adequate lighting (Article 9, paragraph 2); the normal situation of sleeping rooms amidships or aft above the load line (Article 10, paragraph 1); sufficient sanitary accommodation, ventilated and with adequate soil and waste pipes (Article 13, paragraphs 1, 8 and 10); separate hospital accommodation (Article 14, paragraph 1); the requirement to consult shipowners and seafarers in the framing and administration of such legislation (Article 3, paragraph 2(e)); and inspection of crew accommodation by the responsible officer and crew members at least once a week (Article 17).

Convention No. 134. In paragraph 107 of the above General Survey, the Committee considers that one of the essential features of Article 2(a) of Convention No. 147, in relation to Convention No. 134, is the requirement that “one or more crew members should be appointed as responsible for accident prevention under Article 7”. As the national legislation does not appear to give effect to this provision, the Committee requests the Government to adopt measures for the appointment, from among the crew of the ship, of a suitable person or suitable persons or of a suitable committee responsible, under the Master, for accident prevention.

Article 2(b). Control over standards other than safety standards. The inspections enumerated in section VII of Supreme Decree No. 028-DE/MPG relate essentially to safety. The Committee consequently requests the Government to indicate the manner in which control is organized of standards other than safety standards, as enumerated in this provision of the Convention, and the authority competent for exercising such control.

Article 2(c). Living conditions and arrangements. Existence of collective agreements. In view of the absence of information in the report, the Committee requests the Government to indicate whether collective agreements on living conditions and arrangements have been concluded and, if so, requests it to provide detailed information on the measures agreed between shipowners or their organizations and seafarers’ organizations for the effective control of these agreements where the Government has no effective jurisdiction.

Article 2, subparagraph (d)(i). Application of the procedure for the investigation of complaints relating to non-military ships. The Committee requests the Government to indicate whether the single Text of the Administrative Procedure for Warships (TUPAM 15001), which establishes arrangements for the investigation of complaints by the maritime authority, is applicable to non-military ships.

Article 2, subparagraph (d)(ii). Reporting of complaints made in connection with the recruitment in Peru of seafarers on ships registered in a foreign country. The Government indicates that there is no specific procedure for the reporting of such complaints to the competent authority in the country concerned. In practice, a direct communication is forwarded to the maritime administration of the country in which the ship is registered requesting information or suitable action to resolve the problem that gave rise to the complaint. However, under the terms of the Convention, the Member is under the obligation to ensure that adequate procedures, subject to overall supervision by the competent authority, exist for the investigation of any complaint made in connection with the engagement in Peru of seafarers on ships registered in a foreign country to be “promptly reported … to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office”. The Committee therefore requests the Government to take the necessary measures to ensure that such complaints are reported to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office.

Article 2, subparagraph (f). Inspection services. The Government indicates that there is no specific system to verify compliance with the various provisions of the Convention. The maritime authority controls the application of all the standards in force in the maritime sector and penalizes any violations which may be detected. The Committee requests the Government to describe the inspection or other arrangements which exist to verify compliance with the various standards mentioned in this paragraph and to give details of the functioning of these arrangements (for example: size of inspection staff, numbers and results of inspections, and investigations of complaints, penalties imposed).

Article 2, subparagraph (g). Inquiries into any serious marine accidents. Section A‑030204 of Supreme Decree No. 028-DE/MPG provides that the Master, the maritime agent, the shipowner or any person concerned shall be required to notify the port authority of any accident, breakdown or death occurring on board the ship. Under the terms of section A-030205, for an inquiry to be conducted, the port authority must however have received an explicit request in the notification. In contrast, the Convention establishes the requirement that an official inquiry shall be held “into any serious marine casualty” involving ships registered in the territory of the Member and that the final report of such inquiry is to be made public. The Committee therefore requests the Government to take measures to ensure that an official inquiry is held into any serious marine casualty involving Peruvian ships, particularly those involving injury and/or loss of life, with the final report of such inquiry normally to be made public, even where a formal request to this effect has not been made in the notification of the accident made under the terms of Supreme Decree No. 028-DE/MPG.

Article 3. Advice to Peruvian seafarers engaged on board foreign ships. The Committee requests the Government to indicate the measures adopted to advise, in so far as practical, its nationals on the possible problems of signing on a ship registered in a State which has not ratified the present Convention.

Article 4, paragraph 3. Complaints. Sections A-030201 to A-030206 of Supreme Decree No. 028-DE/MPG relate to complaints. A complaint is a document by means of which the Master, the shipowner, the maritime agent, the operator of the ship or any person having a legitimate interest notifies in writing the port authority of the occurrence of an infringement of Supreme Decree No. 028‑DE/MPG or of provisions respecting nautical activities. The requirement to make a complain in writing goes beyond the provisions of the Convention, which does not define the manner in which the complaint shall be made. The Convention also provides that the complaint may be submitted by a member of the crew, a professional body, an association or a trade union, whereas the national legislation only refers to “any person having a legitimate interest”. The Committee therefore requests the Government to indicate what is meant in the national legislation by the term “any person having a legitimate interest” and, in particular, to specify whether a member of the crew, a professional body, an association or a trade union may submit a complaint. It also requests the Government to take measures to ensure that the complaint may be submitted orally or in writing.

Part III of the report form. Decisions involving questions of principle. The Committee requests the Government to state whether courts of law or other tribunals have given decisions involving questions of principles relating to the application of the Convention and, if so, requests it to supply the texts of these decisions.

Part IV of the report form and Article 4, paragraph 3. Information on the application of the Convention in practice. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied including, for instance, extracts from the reports of the authority or authorities responsible for the application of the Convention, information on the number of seafarers covered by these provisions, the number of complaints made, the measures adopted, etc.