Chapter VI. Jurisdiction and control

239. The object and purpose of Convention No. 147 and Recommendation No. 155 was conceived by the Conference in 1976 and referred to in the respective Preambles as "the adoption of proposals with regard to substandard vessels, particularly those registered under flags of convenience". In this perspective, the Conference made a point of recalling also in the Preamble to the new Convention the two earlier instruments, namely Recommendations Nos. 107 and 108, which had considered the question of substandard vessels and the provisions of which it wished to develop. Recommendation No. 107 had dealt with the question of what States might do to avoid their own national seafarers suffering through employment on substandard foreign-registered vessels -- the matter taken up in Article 3 (and to an extent Article 2(d)(ii)) of Convention No. 147. Recommendation No. 108 had dealt with what States should do for the safety and welfare of seafarers when they "accept the full obligations implied by registration" in respect of their own ships -- dealt with now principally in Article 2(a) and (f), but also to some extent in Article 2(d) and (e). In 1976 the Conference went further than in 1958 in both these respects. In addition, it laid down the requirement of an official inquiry into serious marine casualties involving home-registered ships; and it contemplated the possibility of States taking action in respect of foreign-registered ships calling in their ports.

I. Undertaking "to exercise effective jurisdiction or control"

240. In its use of the expression "jurisdiction" in relation to merchant ships, Convention No. 147 has adopted and adapted the existing international law concept of the effective exercise of jurisdiction and control. (Endnote 1) Recommendation No. 108 had cited in its considerata the important principle laid down in the 1958 Convention on the High Seas (CHS): Article 5(1) of that Convention reads "Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag". (Endnote 2) The obligation effectively to exercise jurisdiction and control is thus the main ingredient in the genuine link. Establishment of the notion of genuine link in international law itself represented a major step in the international campaign to counter registration under flags of convenience. (Endnote 3) It seems clear that the mischief which it was intended to redress was the vacuum of jurisdiction and control, in which in particular safety and social standards on board ship were unregulated and in which there was no forum for aggrieved parties to go to to seek a remedy. By adopting first Recommendation No. 108 and then Convention No. 147 (with Recommendation No. 155), the International Labour Conference has contributed considerably to the task of filling that vacuum.

241. Recommendation No. 108 is thus expressed in terms of the exercise of effective jurisdiction and control (Endnote 4) for the purpose of safety and welfare of seafarers on the State's ships, and the measures which should in consequence be taken by the country of registration in fulfilment of the obligations implied by registration. (Endnote 5) The international law obligation of all States of registration to exercise effective jurisdiction and control in social matters amongst others over ships flying their respective flags was a firmly established principle when Convention No. 147 was adopted in 1976. Since the adoption of the LOS Convention in 1982 it is undisputed. (Endnote 6) Article 2 of Convention No. 147 as a whole now elaborates on the matters in respect of which the State has to exercise effective jurisdiction and control, i.e. safety standards (including standards of competency, hours of work and manning), social security measures and shipboard conditions of employment and living arrangements.

242. The various meanings which at various times have been given to the term "jurisdiction" were analysed in one Government's first article 22 report. That Government concluded in reference to Article 2(b) that, for the exercise of jurisdiction to be established, it is sufficient that legal procedures are available to seafarers which enable their claims submitted under private law to be examined, the resulting judgement being binding on the parties and enforceable through the executive authorities. (Endnote 7) It seems to the Committee that, in understanding the expression "jurisdiction or control", the availability of such legal procedures -- justiciability -- may be regarded as a component of the exercise of jurisdiction (to enforce) in internal law; another component would be "inspection or other appropriate means" (the words used in Article 2(f)). This approach helps to see the meaning of "effective ... control" as used in Article 5(1) CHS and Article 94(1) of the LOS Convention on the one hand and Article 2(b) and (c) of Convention No. 147 on the other. On this reasoning, the control is not an alternative to jurisdiction to enforce: rather it is a complement of it.

243. In order to read Convention No. 147 in a way which is consistent with the cited provisions of CHS and the LOS Convention, it must be kept in mind that Article 2 presupposes both the obligation to exercise effective "jurisdiction" and the obligation to exercise effective "control": (Endnote 8) the "or" in "jurisdiction or control" should be read conjunctively (the second term complementing the first) and not disjunctively (presenting alternatives). Article 2 then deals first in clause (a) with the exercise of jurisdiction to prescribe. In Article 2(b) it becomes necessary, on the given presupposition, to understand at the beginning a formula such as "to ensure that the respective competent authorities ..."; the word "jurisdiction" can then only mean "jurisdiction to enforce" and is understood when conjoined with "control" in the sense of justiciability and the power to supervise. There will thus normally be separate competent authorities involved in the application of Article 2(b) (i.e. the judicial and the executive (administrative)). Article 2(f) (at the beginning of which a formula such as "to ensure that the competent authority (verifies)" should be understood in any event) (Endnote 9) is to be seen as enlarging on the composite notion of "jurisdiction or control" in Article 2(b), (Endnote 10) and the words "as appropriate under national law" mean "where the competent administrative authority has such powers". Article 2(c) then deals with the remaining case where such verification does not obtain (i.e. where the competent administrative authority has no "effective jurisdiction" (powers)). The member State should satisfy itself in this last case that measures for the effective (Endnote 11) control of shipboard conditions of employment and living arrangements are agreed between the shipowners and seafarers. This reading of Article 2(c) involves understanding "it" as "the competent administrative authority (Endnote 12) rather than "the member State" (since every State as such in international law must "effectively exercise its jurisdiction an control").

244. It seems essential that Article 2 of Convention No. 147 as it stands should be read in a manner consistent with the relevant rules of international law relating to the exercise of effective jurisdiction and control over ships operated for commercial purposes, as exemplified in the provisions of CHS and the LOS Convention. (Endnote 13) When the international law obligations of the State are thus presupposed, it becomes clear that clauses (c) and (f) of Article 2 should be read as describing the role not of the State as such (as a subject of international law) but of the competent authorities of the State (in the internal law system). The import of Article 2(b) remains perhaps somewhat obscure, due principally to the wide spectrum of meanings attributable to the term "jurisdiction". But, for practical purposes, so long as the given presupposition is maintained, the undertakings in Article 2 as a whole might be considered sufficiently lucid.

245. The article 22 reports of countries bound by Convention No. 147 which the Committee has examined in detail illustrate these difficulties. All refer (sometimes under Article 2(b) sometimes under Article 2(f)), to the crucial question of inspection, indicating which are the competent national authorities. The most significant conclusion which seems to emerge from the reports is that the principle of "effective exercise of jurisdiction and control" as used in CHS and the LOS Convention is in fact virtually taken for granted.

II. Inspection and other means of control

246. Article 2(a) of Convention No. 147 contemplates a wide range of standards on board ship and application of some of them by methods other than legislation. This is reflected in the provision in Article 2(f) for verification either by inspection or by "other appropriate means" and in the allowance in Article 2(c) and (f) for the two possible means of control where standards are fixed by collective agreements. The original Office draft was narrower in the sense that it considered only the case of inspection; but it went further in that it included a requirement that ships should be "regularly" inspected. (Endnote 14) The word "regularly" was altered to "periodically" in the PTM Conference (Endnote 15) and then removed altogether in an amendment which also made provision for "other appropriate means" of verification. (Endnote 16) It its final form, Article 2(f) lays down the State's undertaking to verify (vérifier) (Endnote 17) by inspection or other appropriate means that ships registered in its territory comply with applicable (Endnote 18) international labour Conventions in force which it has ratified, with the laws and regulations required by Article 2(a), and, as appropriate under national law, with (applicable) (Endnote 19) collective agreements. It is clear that the manner in which the State fulfils its undertaking in Article 2(f) is through action by a competent authority.

247. The scope of the undertaking as to verification in Article 2(f) has three dimensions. First it applies to applicable international labour Conventions in force which the State has ratified. The word "applicable" here seems to denote applicable to the "ships registered in its territory": this term presumably has the same meaning as elsewhere in Article 2, which is that given it by the provisions as to scope in Article 1; to that extent, Article 2(f) as drafted would not impose any obligation in respect of ships registered in the territory which are within the scope of particular ratified Conventions in force but not within the scope of Convention No. 147 as so defined (for example, fishing vessels). The point is significant, since some "applicable" Conventions provide for inspection or "other appropriate means" of supervision, (Endnote 20) others do not. (Endnote 21) For those Conventions that do so provide, then, Article 2(f) adds nothing; for those that do not, it may be argued that it brings an important clarification of the obligation in article 19(5)(d) of the ILO Constitution to "take such action as may be necessary to make effective the provisions of such Convention" vis-à-vis the ships which are within the scope of Convention No. 147: it specifies that the action in question is some form of verification, either by inspection or by other appropriate means. The undertaking as to verification in Article 2(f) applies, secondly, in respect of the laws and regulations required by Article 2(a). Thus, in so far as the Appendix Conventions which do not have their own corresponding provisions as to inspection or other appropriate means of ensuring compliance (Endnote 22) are not ratified and in force for the State, but are required to be the object of laws or regulations ensuring substantial equivalence, Article 2(f) creates an obligation to verify compliance by inspection or other appropriate means. It creates a similar obligation in respect of matters which have to be the object of laws or regulations under Article 2(a) but are not covered by Appendix Conventions. (Endnote 23) The undertaking as to verification in Article 2(f) applies, thirdly, as appropriate under national law, in respect of "applicable collective agreements". The word "applicable" here too presumably means "applicable to ships registered in the territory". Discharge by the competent authorities of the undertakings as to inspection and other means of control accepted by the State at the international level thus amounts to a considerable task, which covers at least all the matters referred to in Article 2(a) and potentially much more, where other Conventions apply.

248. The first discussion of what is now Article 2(c) in the PTM Conference shows that the Shipowners' group which made the proposal "had in mind the need to make provisions for those countries in which conditions of employment were not defined by legislation but by collective agreements"; the provision made was therefore that the State should satisfy itself that such conditions "were subject to effective control under arrangements agreed between shipowners' associations or shipowners and trade unions constituted in accordance with the substantive provisions of Conventions Nos. 87 and 98". (Endnote 24) With further drafting changes, (Endnote 25) it now appears that Article 2(c) lays down the State's undertaking to satisfy itself that measures for the effective control of shipboard conditions of employment and living arrangements (Endnote 26) -- where these are governed by collective agreements in accordance with Article 2(a)(iii), and where under national law either the competent authority has no power to exercise such control or for some other reason the exercise of such control is not (in the terms of Article 2(f)) "appropriate under national law" -- are agreed between shipowners or their organisations and seafarers' organisations constituted in accordance with the substantive provisions of Conventions Nos. 87 and 98.

249. These are not the only undertakings of the State in Article 2 in respect of which the competent authorities have supervisory obligations. In addition to the "over-all supervision" of procedures relating to engagement in Article 2(d), (Endnote 27) the measures taken to ensure that seafarers employed on ships registered in the territory are properly qualified in accordance with Article 2(e) call for the authorities to take action on several different points not specifically covered by Article 2(a) and (f). (Endnote 28) On the other hand, the competent authority is not called on to take measures under Article 2(f) where shipboard conditions of employment and living arrangements are dealt with by collective agreements and, at the same time, it is not appropriate under national law: in those circumstances the State must none the less satisfy itself under Article 2(c) that measures for effective control are agreed between shipowners or their organisations and seafarers. Those measures are undefined in the Convention: they may be laid down in collective agreements themselves (for example, grievance procedures, arbitration) or form part of any other agreed procedures. (Endnote 29) The mention of Conventions Nos. 87 and 98 in Article 2(c) has been said not to "pose any additional problem since they were already in the Appendix": (Endnote 30) the upshot appears to be that where Article 2(c) measures are required (i.e. in cases where effective control is not otherwise ensured) the organisations which agree to the measures must as a matter of fact be constituted in accordance with Conventions Nos. 87 and 98. (Endnote 31)

250. Neither Convention No. 147 nor Recommendation No. 155 elaborates on the nature of "inspection" as used in Article 2(f). Although relatively old and in need of revision, the leading instrument on inspection in the maritime sector (the Labour Inspection (Seamen) Recommendation, 1926 (No. 28)) is still regarded as an instrument for priority promotion. (Endnote 32) Thus, while Convention No. 147 leaves the organisation and functioning of the inspection services to the State's discretion, international guidance in this respect is available both in general and in relation to the particular matters to be inspected under Convention No. 147. (Endnote 33) The Committee would note that, as expressed in Recommendation No. 28, the main duty of the authorities responsible for inspection should be to secure the enforcement of laws and regulations as to conditions of seafarers' work; there should be centralisation or collaboration of bodies responsible; there should be detailed annual reports; and inspectors should have all necessary rights, powers and duties as guaranteed by law. The 1989 Guide-lines discuss in turn each of the matters dealt with in Convention No. 147 and relate the recommended control procedures: visits to ships without notice; examination of ships' papers; investigation by questioning particular crew members; prompt response to complaints; and recommending issuing orders to secure compliance with legislation or, where there is a question of safety, detention of the ship.

251. Nearly all the reports from countries bound by Convention No. 147 examined by the Committee have referred to inspection of at least some of the matters dealt with in Article 2(a). In one case in particular the Committee has noted the comments of a workers' organisation as to significant cuts in the numbers of inspectors, and the Government has provided more detailed information. (Endnote 34) In many cases several ministries and other bodies are responsible for various aspects of the standards to be enforced (for example, different authorities responsible for marine safety, health, social security, labour conditions, and consuls) -- a fact which highlights the need for co-ordination and collaboration amongst the authorities. (Endnote 35) Many countries with large registers of ships which may rarely or never call at home ports rely heavily on their consulates or other representatives in foreign ports to fulfil the role of the inspectorate. Several countries have referred to consuls or other inspectors abroad in this connection in article 22 reports. (Endnote 36) However, in some cases little practical information on the functioning of these arrangements (numbers of staff and their qualifications, numbers of inspections carried out, co-ordination with other home and foreign-based inspecting authorities, follow-up) (Endnote 37) has been provided. It seems to the Committee that in many cases these aspects of the control of labour standards in merchant ships require further attention and clarification. (Endnote 38) In this, regard should be had to the scope of the Article 2(f) undertaking, as shown above. (Endnote 39)

252. The expression "inspection or other appropriate means" in Article 2(f) allows for the different kinds of control measures which are called for by the variety of subject-matter, as indicated for instance in some of the instruments in the Appendix. For example, crew accommodation and catering arrangements should be inspected by the competent authority at the time when the ship is registered or re-registered or altered but should also be subject to periodical inspection thereafter (by designated crew members), including while the ship is at sea. (Endnote 40) For other Conventions, the establishment and maintenance of registers or other documentation has to be regulated and regular verification of them may be necessary. (Endnote 41) Social security questions require a different kind of control involving sometimes complex administration and the keeping of records for both the collection of contributions and the payment of benefits -- in addition to procedures for dispute settlement and appeals. (Endnote 42) Some countries have referred to such measures in general terms. (Endnote 43) The supervision of freedom of association, the right to organise and collective bargaining also calls for steps to be taken to ensure due operation, both by guaranteeing the free functioning of organisations on shore and by conducting inspections and investigations of the situation on board ship; to be able to do this, inspectors need to be aware of the issues at stake and have the opportunity to recognise and inquire into problems arising.

253. Some governments have referred in article 22 reports -- again in general terms -- to penalties imposed for breach of provisions, (Endnote 44) although the Committee regrets to note that on the whole little detailed information as to the results of inspections and other control measures taken has been given.

254. In so far as standards are set by applicable collective agreements, it has appeared that control is invariably exercised by courts to the extent that agreements must be entered into and complied with in accordance with national law and the courts are competent to adjudicate on whether this has been done. (Endnote 45) Several governments of countries bound by Convention No. 147 have thus explicitly indicated that "jurisdiction" in this sense is exercised. (Endnote 46) One has referred to measures of inspection taken by public authorities in respect of provisions of collective agreements; (Endnote 47) another has indicated there is no such inspection. (Endnote 48) One country has referred to the participation by collective agreement of a trade union organisation in inspections. (Endnote 49) There appears to be no information on any residual case duly covered by Article 2(c) where shipboard conditions of employment and living arrangements may be fixed by collective agreement in conformity with the Convention and where measures for effective control of them have been agreed between shipowners and seafarers.

255. Most of the countries which have sent article 19 reports have referred to the general system of ship inspection for safety purposes (including those within the framework of the IMO Conventions). (Endnote 50) Some have provided information as to a sometimes extensive system of inspectorates in major ports of the world, principally for these purposes. (Endnote 51) Other countries seem to conduct inspections of ships in respect of labour standards in general or at least some aspects. (Endnote 52)

256. It is evident that, if the prescriptive aspect of jurisdiction is not to be a dead letter, the enforcement aspect must be given all due weight, and the Committee's general comments elsewhere as to the fundamental importance of inspection of labour standards (Endnote 53) apply equally in the shipping sector. However, it is perhaps in merchant ships that the logistics of the physical surveillance of the workplace and control of all manner of labour standards for the protection of all workers concerned are the most problematical. It seems that under Convention No. 147 the State's acceptance of "jurisdiction" must be manifested first in the competent judicial authorities taking jurisdiction over ships registered in the territory -- whether or not those ships themselves are present in the territory -- and second in the competent administrative authorities exercising their control by whatever means are appropriate but especially by inspection. Both of these are seen by the Convention as essential to the campaign to deal with substandard vessels, especially those sailing under flags of convenience. There is no substitute for an efficient inspection system, which is still the surest guarantee that national and international labour standards are complied with in fact as well as in law. In this light, the Committee has been encouraged by the attention given by some governments to inspection of home-registered ships. It would urge all governments to extend their activities in this respect and have all due regard (when they are published) to the 1989 Guide-lines adopted by the ILO Meeting of Experts and to Recommendation No. 28, as well as to any subsequent new standards on the subject. The Committee proposes to consider the more detailed application of Article 2(f) in countries bound by the Convention in its examination of article 22 reports in future.

III. Official inquiries into serious marine casualties

257. The first draft of what is now Article 2(g) of Convention No. 147 was added by the PTM Conference Committee. (Endnote 54) In the replies to the questionnaire subsequently circulated, reservations were expressed as to the publication of inquiry reports in some cases. (Endnote 55) Those and other doubts were discussed in the responsible Committee of the 1976 Conference, following which the words "final" and "normally" were added. (Endnote 56) The outcome is an undertaking by the State to hold an official inquiry into any serious marine casualty involving ships registered in its territory, particularly one (Endnote 57) involving injury or loss of life, the final report of such inquiry normally being made public. This wording to a large extent accommodates the objection that preliminary inquiries must essentially be rapid and informal. It covers casualties involving home-registered ships wherever they occur; (Endnote 58) it does not cover casualties only involving foreign-registered ships, even if they occur within the territorial waters. (Endnote 59)

258. Most of the countries bound by Convention No. 147 have indicated they have established procedures for official inquiries as required by Article 2(g). The Committee has made direct requests as to the functioning of the procedures in general, (Endnote 60) and where the publication of the final report seems not to have been provided for: (Endnote 61) this requirement seems to be satisfied where the final report is made available to interested parties and the conclusions announced publicly. (Endnote 62) In the absence of actual casualties, no standing inquiry body need apparently be appointed. (Endnote 63) Article 22 reports have occasionally provided the information requested in the report form as to numbers of such inquiries and measures taken as a result: the Committee hopes that governments concerned will not omit to reply to this request. Article 19 reports also show that there is often a statutory procedure for the investigation of shipping casualties. (Endnote 64) This usually follows a less formal preliminary inquiry; it reports to the minister responsible and it seems that in most cases the hearings are public and/or the findings are eventually published. (Endnote 65)

IV. Port state action

(a) Provisions of Convention No. 147

259. Article 4 of Convention No. 147 tackles the problem of substandard ships from the angle not of the country of registration but of the country in whose ports they call. In this it reflects one aspect of each sovereign State's inherent rights over its territory; (Endnote 66) and it adopts an approach expressly provided for in earlier IMO Conventions, while adapting it to the ILO sphere of competence. In contemplating action by a State other than the State of registration, Article 4 envisages the former not only drawing the latter's attention to the failure to comply with the standards -- something for which there is at least a partial precedent among ILO Conventions (Endnote 67) -- but also taking necessary measures where conditions on board are clearly hazardous to safety or health.

260. The original office draft Programme for the Effective Attainment of Standards discussed by the PTM Conference in 1975 proposed that any evidence as to the application of standards obtained in pursuing the Programme be "taken into account" by port authorities in connection with their right to control under Chapter I, Regulation 19, of the Annex of the 1960 SOLAS Convention. (Endnote 68) That draft was not retained in the Conclusions of the PTM Conference, but the 1976 Conference received a timely reminder of the Procedures for the Control of Ships adopted by the IMO, concerning the inspection by port States of foreign-registered vessels in relation to the SOLAS and Load Lines Conventions, (Endnote 69) and this contributed directly to what became Article 4 of Convention No. 147. Those Procedures note that port state control should be regarded as complementary to measures taken at home and abroad by flag States and are mainly intended to assist flag States in securing compliance with relevant provisions. They observe that the SOLAS and Load Lines Conventions provide expressly for examination of foreign-registered ships' certificates by control officers; (Endnote 70) but they add provision for the initiation of control on the basis of information about a substandard ship submitted to the port state authorities by a crew member, professional body, association, trade union or any individual with an interest in the safety of the ship, its crew and passengers. The Procedures outline the steps to be taken by port authorities in respect to the SOLAS and Load Lines Conventions -- including communicating with representatives of the flag State -- and in doing so give at least some indirect indications of the way in which the authorities might act also in relation to labour standards. (Endnote 71)

261. Several government comments on the PTM Conference Conclusions suggested reinsertion of some provision for the control of foreign-registered ships (Endnote 72) and a new paragraph was placed in the draft Programme calling on coastal or port authorities to take "action as necessary against vessels which do not conform to the safety and health standards referred to in the Convention, regardless of whether the country of registration has ratified it". (Endnote 73) It was on the basis of a proposal made by a group of western European governments that the final version of Article 4 was adopted. The 1976 Conference Committee decided against limiting the scope of Article 4 to ships registered in countries bound by Convention No. 147 (Endnote 74) The Reporter of the Committee referred to "striking a balance between the powers of the flag country and the powers of the port country" and considered there to be several safeguards built into the wording of the Article. (Endnote 75)

262. Article 4 provides that when a ship in the normal course of its business or for operational reasons calls in the port of a State which has ratified Convention No. 147, and the State receives a complaint or obtains evidence that the ship does not conform to the standards of the Convention, the State may prepare a report addressed to the government of the country of registration, with a copy to the Director-General of the ILO, and may take measures necessary to rectify any conditions on board clearly hazardous to safety or health. If such measures are taken, notification of the nearest representative of the flag State and a request to such representative to be present if possible are compulsory. The ship must not be unreasonably detained or delayed. Those competent to make a complaint for this purpose are defined as crew members, professional bodies, associations, trade unions or generally anyone with an interest in the ship's safety, including safety and health hazards to the crew.

263. Article 4(1) of Convention No. 147 -- like the Articles of many international labour Conventions -- lays down provisions to be applied by "any Member which has ratified this Convention": although the responsible Committee decided not to refer to the ILO Constitution in this Article, (Endnote 76) it seems literally to go without saying that States not bound by the Convention through ratification and for which the Convention is not in force have no obligation under the Convention. At the same time, the Committee and the Conference decided against limiting the application of Article 4 to ships flying the flag of a State which has ratified the Convention. (Endnote 77) The fact that all ships calling at a State's port may legitimately be required by that State to submit to certain controls was attributed by proposers of the amendment to each State's sovereign rights already existing in international law independently of the Convention being ratified. (Endnote 78) The present Committee would once more observe that Convention No. 147 -- like other international labour Conventions -- establishes minimum standards and does not prevent States from going beyond such minimum by ensuring more favourable conditions to the workers concerned. (Endnote 79)

264. Whilst Article 4(2) contains mandatory provisions as to some aspects of the manner in which Article 4(1) measures are taken, Article 4(1) itself is purely permissive. There is thus no basis in Article 4(1) of Convention No. 147 for compelling port States to take action to control or inspect either foreign-registered ships in general or ships of any particular State or group of States (moreover, the words "control" and "inspection" do not appear in Article 4). Neither is there any basis in Article 4(1) for preventing States from taking such action in cases of non-conformity with standards going beyond Convention No. 147.

265. Article 4 applies to a ship calling in port in the normal course of its business or for operational reasons. (Endnote 80) It applies when the port State receives a complaint or obtains evidence in relation to the standards of the Convention. The persons or bodies who may make a complaint are defined in Article 4(3) in terms only slightly adapted from the IMO Procedures. (Endnote 81) Addition of the final words of Article 4(3) seems to allow for complaints to be received not only from someone with an interest in the safety of the ship but also from someone with an interest in the safety or health hazards to the crew, in so far as this may be different. (Endnote 82) Article 4 does not define the "evidence" on which a port State may act or the manner in which it may be obtained. Such evidence may, then, be obtained in any way, but it might appear first in examination of ships' certificates and carrying out any control or inspections provided for by other international instruments (SOLAS and Load Lines Conventions or, for example, the LOS Convention) or by national laws and regulations. Except for the provision to "take measures", Article 4 operates when such complaint or evidence tends to show non-conformity with any of the standards of the Convention. (Endnote 83)

266. The first action which may be taken under Article 4 is to prepare a report and address it to the government of the country of registration. This seems to have been uncontroversial at the 1976 Conference. The second action which may be taken is to transmit a copy of such report to the Director-General of the ILO. Apparently the first action may under the Convention be taken without the second, although the present Committee would tend to raise the question with the government in such case. (Endnote 84) Although these actions are not mandatory on the part of the port State, they apply in respect to non-conformity with any of the standards of Convention No. 147 (not only those involving hazards to safety or health), and they apply whether or not any measures of rectification are taken or proposed. They are thus a potential means of stimulating a flag State to take corrective action in cases where the port State does not consider its own intervention appropriate. (Endnote 85)

267. The third action which may be taken under Article 4 is to "take measures necessary to rectify any conditions on board which are clearly hazardous to safety or health". (Endnote 86) The terms used are not defined. (Endnote 87) In considering the bearing of this phrase and the manner in which it is applied, the Committee would keep in mind both the internal context of Convention No. 147 -- i.e. the substantive standards laid down by the Convention as a whole and the intent and purpose of the Convention of dealing with the question of substandard vessels, especially those registered under flags of convenience -- and the external international legal context -- i.e. the fact that States in any event enjoy and may exercise sovereign rights in their ports, and the fact that certain aspects of the physical safety of ships are governed more specifically by other international instruments which may be applicable. (Endnote 88) It therefore is clear that States have a very wide discretion as to the measures they choose to take in ports in their territory, although there may in practice be many reasons of expediency or international comity or international agreement which inhibit the exercise of that discretion. Whilst the caveat as to "exaggerated notions" was therefore apt in 1976 and remains so in 1990, the fact that port state action is referred to here in this important international labour Convention in the maritime sphere does represent a positive contribution to the developing international consensus on port state control.

268. In taking measures of rectification under Article 4(1) a State must under Article 4(2), first, forthwith notify the nearest maritime, consular or diplomatic representative of the flag State; (Endnote 89) second, "if possible, have such representative present"; (Endnote 90) and third, not unreasonably detain or delay the ship. The notification requirement is similar to that in other international instruments. (Endnote 91) Article 4(2) does not require the taking of measures to be subject to a prior hearing by a representative of the State of registration, (Endnote 92) nor does it go so far as the IMO Procedures, which call for the representative to be requested to initiate or co-operate with investigations. (Endnote 93) Although it does appear from the wording of Article 4(2) that the representative of the State of registration should be notified at the moment when measures are taken, so that such representative will only be present afterwards, Article 4 would not appear to exclude the representative being notified, time permitting, before measures are taken. (Endnote 94)

269. It is in any event clear that when any action is taken under Article 4 it must be swift -- both in order to deal effectively with hazardous conditions; and to comply with the requirement that the ship should not be unreasonably detained or delayed. In the discussion in the responsible Committee of the 1976 Conference, concern was expressed by some Members that taking steps in relation to some shortcomings as to the standards of the Convention (for example competency) might take three or four months or more, especially in developing countries, and that ships should not be delayed on account of such steps. Since the Conference rejected a proposal that Article 4(2) should read simply "shall not detain or delay", the final use of the word "unreasonably" appears as a compromise which again leaves a discretion to the authorities of the port State. (Endnote 95)

(b) Memorandum of Understanding on Port State Control

270. Thirteen of the 20 (Endnote 96) States which have ratified Convention No. 147 are party to the 1982 Memorandum and have referred to arrangements under it in their article 22 reports on Convention No. 147. The control of foreign-registered ships provided for in the Memorandum aims at the inspection of 25 per cent of the estimated number of individual foreign merchant ships (without distinction as to flag); there should also be mutual consultations, co-operation and exchange of information on the subject. Such control covers the main IMO Conventions as well as Convention No. 147. It includes the principle that "no more favourable" treatment is given to ships entitled to fly the flag of a State which is not a party to one of the instruments than to one that is. In order to fulfil their commitments States are to carry out inspections consisting of a visit on board to check relevant certificates and documents; in the absence of these, or if there are other "clear grounds" (for example, notification by another MOU country or a complaint similar to one under Article 4 of Convention No. 147) for believing that a ship does not substantially meet the requirements of a relevant instrument, a more detailed inspection will be carried out. Inspections should concentrate on ships presenting a special hazard (for example, oil tankers, chemical carriers) and those which have had recent deficiencies, but should normally avoid ships inspected by a Memorandum country within the previous six months. Inspections should be made by a qualified person, and the authorities should try to rectify deficiencies. Where these are hazardous to safety or health or the environment they should be removed before the ship is allowed to proceed, and the flag State representative should be notified. If no remedy is available in the port in question and if there is no unreasonable danger to another port, the ship may be allowed to proceed; flag state authorities and those of the next port of call should be notified as appropriate. A document attesting to the inspection should be provided. All possible efforts should be made to avoid unduly detaining or delaying a ship. Results of inspections are published by the MOU secretariat and arrangements are regularly reviewed by the Port State Control Committee.

271. The guide-lines in relation to Convention No. 147 originally annexed to the Memorandum of Understanding referred to requirements of Convention No. 147 and the Appendix Conventions in relation to minimum age, medical examination, officers' certificates of competency, food and catering, crew accommodation and accident prevention, as well as to requirements of the STCW and SOLAS Conventions. They referred also to the IMO Safe Manning Resolution. (Endnote 97) Amendments which took effect on 11 May 1989 include improvements on some of those matters and general guidance also in respect of articles of agreement, repatriation, shipowners' liability and trade union rights. (Endnote 98) In respect of the rectification of deficiencies and detention, the guide-lines follow the requirements of Article 4 of Convention No. 147. States parties to the Memorandum publish statistics on inspections carried out, broken down by flag State and type of deficiency found (such as crew accommodation, food and catering, accident prevention) but not indicating what kinds of deficiencies occur on ships of which State of registration. Since the ILO participates in the Port State Control Committee which reviews this information and the statistics themselves are published, it has been considered that they have been duly communicated to the Director-General of the ILO in compliance with Article 4(1). (Endnote 99)

(c) Other information provided

272. Of the other countries bound by Convention No. 147 whose detailed article 22 reports the Committee has examined, two (Endnote 100) have indicated no port state action is taken. For another three (Endnote 101) the Committee has raised the matter in direct requests. Four others (Endnote 102) have indicated that at least some action along the lines of Article 4 is taken.

273. In four recent cases the Director-General of the ILO has received copies of detailed reports in connection with Article 4(1). These came from two MOU States. One involved a ship calling in port for repair: one seafarer had had an accident, various deficiencies, including under the STCW Convention, were found and reference was also made to Article 4 of Convention No. 147. (Endnote 103) The second case also involved multiple deficiencies and the inspecting authority referred to specific requirements of Conventions Nos. 68, 92 and 134: the ship was detained for five days and allowed to leave only after certain deficiencies under Conventions Nos. 68 and 134 amongst others were remedied and with a warning that the others would have to be corrected within one month. (Endnote 104) In the third case, the authority also referred to deficiencies relating to Convention No. 134, amongst others: the ship was detained for rectification of some matters and after reinspection allowed to leave with a one-month warning as to the other matters; the next port of call was informed. (Endnote 105) And in the fourth, the vessel was detained, the consulate informed, certain deficiencies (relating again to Convention No. 134 and other safety matters) were rectified and others were ordered rectified before arrival at the next port of call, which was also informed. (Endnote 106)

274. Article 19 reports from other countries show that many do or may exercise port state control over foreign vessels in respect of safety (including manning). (Endnote 107) In several of these, the provisions as to detention and notification of the consul are also available. However, reference to the standards of Convention No. 147 is made in only one case in this connection. (Endnote 108) One country with no coastline (Endnote 109) indicates that its ships have been inspected by MOU countries, with no fine for failure in respect of labour standards being imposed. Some developing countries indicate that no port state action of this kind is possible, because the legislation (Endnote 110) or inspection resources (Endnote 111) do not permit it.

(d) Development of port state control

275. Whilst the exercise of port state control remains subject to certain difficulties, it is the object of growing interest. It appears for one thing that many countries -- especially developing ones -- have meagre resources for the control of foreign-registered ships in respect of any of the international instruments which contemplate such action. There is a sure need in all countries for responsible officers to have the backing of clear legislation empowering them to take action in respect of labour standards on foreign-registered ships, and for them to be fully aware of their powers and duties in this respect. The thorough control of Convention No. 147 matters moreover entails special expertise and involves perhaps more difficult investigations and assessments by the controlling officers than is the case for some matters falling under instruments of other international organisations. It is noticeable also that even among the group of countries the most committed to port state control of Convention No. 147 and other matters -- i.e. the MOU States -- the goal of inspecting 25 per cent of foreign-registered ships is rarely met, and numbers of inspections in some countries have actually declined; where that goal is met, few details are provided as to the attention given directly to Convention No. 147 matters.

276. On the other hand, the practice of port state control in relation to several international instruments seems to have become well established amongst many leading maritime nations, and it can be a useful means of dealing with problems of substandard ships -- including those registered under flags of convenience in the widest sense of the term -- when the State of registration has not itself dealt with them. The Guide-lines adopted by the ILO Meeting of Experts in October 1989 may play an important part in this. They establish principles and practical advice based on Convention No. 147 and applicable to ILO member States in general -- not only to a particular group of industrialised countries. The Committee would therefore recommend that all countries considering taking action along the lines of Article 4 of Convention No. 147 might have due regard to the indications both in this general survey and in the Guide-lines.

Endnotes

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C068 Food and Catering (Ships' Crews) Convention, 1946
Conventions: C087 Freedom of Association and Protection of the Right to Organise Convention, 1948
Conventions: C092 Accommodation of Crews Convention Revised), 1949
Conventions: C098 Right to Organise and Collective Bargaining Convention, 1949
Conventions: C134 Prevention of Accidents (Seafarers) Convention, 1970
Recommendations:R028 Labour Inspection (Seamen) Recommendation, 1926
Recommendations:R107 Seafarers' Engagement (Foreign Vessels) Recommendation, 1958
Recommendations:R108 Social Conditions and Safety (Seafarers) Recommendation, 1958