Demande directe (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

See comments addressed to the United States under this Convention, as follows:

The Committee has noted the information provided by the Government in its first report and in its earlier report under article 19 of the Constitution concerning Recommendation No. 155. It would be grateful if in its next report the Government would deal in particular with the matters referred to below. It would be glad also if in doing so the Government would indicate (a) how far any of the matters referred to in the Convention may be covered by provisions at the level of the States as well as at the federal level; and (b) whether any distinction is made in respect of seafarers who are not United States nationals or are not domiciled or resident in the United States.

Article 1(4)(b) and (c) of the Convention. 1. The Committee notes that fish processing vessels of up to 5,000 tons are not covered by provisions applying the Convention. It refers to the explanations in paragraph 42 of its 1990 general survey, from which it is clear that the exception under Article 1(4)(b) relates only to vessels engaged in catching operations involving the living resources of the sea. In the light also of the indications in paragraphs 43-45 of the general survey as to the limitations on the exclusion of "small vessels" under Article 1(4)(c), the Committee would be glad if the Government would indicate the measures taken or envisaged to ensure the implementation of the Convention in this respect.

2. Please indicate what consultations with representative organisations of shipowners and seafarers have taken place with regard to decisions to exclude from application of the Convention small vessels and vessels such as oil rigs and drilling platforms when not engaged in navigation.

Article 2. 1. Standards of competency and manning. The Committee has noted the indications in the report that licences are subject to suspension or revocation for failure to comply with the laws and regulations; and that measures designed to improve safety standards relating to manning were taken in particular as a result of the EXXON VALDEZ disaster. Please indicate more precisely the measures taken and the steps by which it has subsequently been ensured that the laws and regulations are complied with (see also Article 2(f)).

2. (Conventions included in the Appendix to Convention No. 147 but not ratified by the United States).

- Convention No. l34. Please indicate the steps taken in relation to Article 7 (appointment of persons responsible for accident prevention).

- Convention No. 73. (i) Please indicate the provisions by which it is ensured that all persons engaged on board in terms of Article 2 are covered by the medical examination requirement under Article 3. (ii) Please also indicate whether all persons covered are required to undergo examinations every 12 months, or whether this only applies to officers; and how far it is ensured that medical certificates comply with the provisions of Article 5(1) as to their frequency.

- Convention No. 92. (i) Please indicate how the legislation on crew accommodation is brought to the notice of persons concerned (Article 3(2)(a)). (ii) Please indicate the provisions for adequate penalties in cases of violations of accommodation requirements; and describe how effective enforcement of accommodation requirements is ensured, including on re-registration or alteration or on receipt of a complaint (Articles 3(2)(c) and (d) and 5 - see also Article 2(f) of Convention No. 147). (iii) Please indicate what consultations take place with shipowners' and seafarers' organisations under Articles 3(2)(e) and 18.

- Convention No. 23. Please indicate whether seafarers who are repatriated as members of a crew are remunerated (Article 5(2)).

- Convention No. 22. (i) Please indicate how it is ensured that seafarers understand their agreements (Article 3(4)). (ii) Please indicate whether agreements have to include reference to the possible grounds for rescission and annual leave (Article 6(3)(10)(c) and (3)(11)). (iii) Please indicate the provisions relating to termination (Articles 9 and 10) and immediate discharge (Articles 12 and 13).

- Convention No. 87. Whilst the Committee has noted the general information provided, it would be glad if, in order to facilitate an appreciation of the extent to which effect is given to the Convention in the maritime industry, the Government would supply information on important judicial decisions and decisions of the National Labor Relations Board (NLRB) and on the practice in relation to seafarers on US-registered ships. In particular: (i) Article 2. Please indicate any substantive or formal conditions for the establishment of seafarers' organisations. (ii) Article 3. Please indicate any conditions governing the right of seafarers' organisations to draw up their constitutions and rules, elect their representatives in full freedom, organise their administration and activities and formulate their programmes. Please indicate any election or membership criteria based on nationality, domicile, residence or prior service at sea. (iii) Article 4. Please indicate any provisions whereby seafarers' organisations might be liable to dissolution or suspension by administrative authority. (iv) Articles 5 and 6. Please indicate any provisions as to federations and confederations to which seafarers' organisations may affiliate.

- Convention No. 98. (i) Article 1. Please provide further information, including on important judicial decisions or decisions of the NLRB, as to how seafarers are protected against acts of anti-union discrimination. (ii) Article 2. How is protection against mutual acts of interference by seafarers' and shipowners' organisations ensured? (iii) Article 4. Please indicate what measures are taken to promote collective bargaining in the maritime industry.

Article 2(d). The Committee notes the statement in the report that it is masters of vessels who are responsible for supervising engagement; reference is also made to the general role of the NLRB in cases of grievance, and to tripartite advisory committees assisting in the application of shipping law in general. It would refer the Government to the explanations in Chapter IV of the 1990 general survey (especially paragraphs 214 and 218) as to the requirements of the Convention.

It appears to the Committee that the supervisory role in engagement procedures attributed by the Convention to a competent authority must, in order to ensure the seafarer's protection, be discharged by a disinterested party. In this respect, it has noted that the legislation (e.g. 46 USC section 10305) refers also to the role of the shipping commissioner. It appears to the Committee that adequate procedures in terms of the Convention must be designed in addition to deal immediately with complaints arising in connection with an engagement. Further, where tripartite consultations are appropriate under Article 2(d), they should directly address the issue of procedures for engagement and related complaints.

The Committee would be grateful if the Government would (i) describe the role of the shipping commissioner in relation to engagement procedures; (ii) supply particulars of typical cases where complaints concerning engagement have been investigated; and (iii) indicate any tripartite consultations which have taken place specifically relating to engagement procedures. Please indicate whether the arrangements referred to cover the investigation of complaints made by US seafarers as to engagement on foreign ships in US ports; or by foreign seafarers as to engagement on such ships.

Article 2(e). Please include in future reports information on the practical application of seafarers' vocational training arrangements, having regard to Recommendation No. 137.

Article 2(f). The Committee has noted the brief information in the report as to marine inspections in general, although this does not appear to relate specifically to the matters covered by the Convention. It has also noted US Coast Guard Commandant Instruction No. 16711.12, which deals more directly with the labour standards in question. The Instruction indicates that certain matters are investigated by the Coast Guard, whilst others are referred to the Department of Labor. The Committee would be grateful if the Government would in both cases supply the information requested in the report form as to the functioning of inspection and other arrangements for verification of the matters referred to in Article 2(a)(i), (ii) and (iii) (e.g. the size of the inspection staff, numbers and results of inspections and investigations of complaints, penalties imposed).

Article 2(g). Please include in future reports up-to-date information on inquiries into serious marine casualties, whether made by the National Transportation Safety Board or the Coast Guard or any other body, and measures taken as a result of them.

Article 3. Please include in the next report information on the practical application by the federal agencies referred to in the report of measures to inform US nationals of the risks of signing on for employment on foreign-registered vessels.

Article 4. The Committee has noted the general information in the report as to measures of port state control of foreign vessels. It would be glad if in the next report the Government would indicate the steps taken under the Coast Guard Instruction specifically in relation to the standards of the present Convention, indicating, for example, the number and the nature of cases considered and any action taken. Please ensure that a copy of any report prepared under Article 4(1) is forwarded to the ILO.