Chapter I. Scope of the instruments

35. Under Article 1, Convention No. 147 applies with certain exceptions, or possible exceptions, to every sea-going ship engaged in the transport of cargo or passengers for the purpose of trade or employed for any other commercial purpose. Paragraph 1 of Recommendation No. 155 is drafted in the same terms. Both publicly and privately owned ships are covered (Article 1(1)). It is for national laws or regulations to determine when ships are to be regarded as sea-going ships for the purpose of the Convention (Article 1(2)). The Convention does apply to sea-going tugs (Article 1(3)). It does not apply to ships primarily propelled by sail, whether or not fitted with auxiliary engines (Article 1(4)(a)); or to "ships engaged in fishing or in whaling or in similar pursuits" (Article 1(4)(b)). Small vessels and vessels such as oil rigs and drilling platforms when not engaged in navigation are also excluded, the decision as to which vessels are covered by this exclusion being taken by the competent authority in each country in consultation with the most representative organisations of shipowners and seafarers (Article 1(4)(c)).

I. "Ships"

36. Subject to the exceptions made in Article 1(4), all types or classes of ships or vessels are covered by the wording of Article 1(1) of the Convention. Though some of the expressions used in Article 1 are drawn directly from Article 1 of Convention No. 133, (Endnote 1) the scope of Convention No. 147 is wider in several respects considered below. One type of vessel (the sea-going tug) is expressly covered by Convention No. 147 (Article 1(3)); one other type of vessel (that primarily propelled by sail) is expressly excluded (Article 1(4)(a)). Otherwise the scope of the Convention is defined essentially in terms not of types of vessels but of (i) the purpose or activity in which they are engaged and (ii) their size. It was particularly agreed in the PTM Conference which adopted the draft instrument later discussed by the 62nd Session of the International Labour Conference not to exclude two types of vessel, namely hydrofoils and air-cushion craft (these having been excluded by Article 1(4)(d) of Convention No. 133). (Endnote 2)

II. "Sea-going"

37. In Article 1(2), Convention No. 147 (like Conventions Nos. 68, 69, 73, 91 and 92) leaves it to national laws or regulations to determine when ships are to be regarded as sea-going ships, without laying down any specification. Provisions in some countries which have ratified Convention No. 147 apply to shipping in general without discussing whether it is sea-going. (Endnote 3) Others have legislation applying rather to conditions of employment of seafarers in general -- which has the same effect. (Endnote 4) Some earlier Conventions (Endnote 5) expressly excluded vessels engaged in the coastal trade: although this is not done in Convention No. 147, it is open to a State to define sea-going ships to exclude such vessels, and this is sometimes done directly (Endnote 6) or by implication. In several countries what is or is not regarded as a sea-going ship is defined by reference to the waters sailed: there may be a distinction between internal and maritime navigation; (Endnote 7) or sea-going vessels may be defined as those which actually go to sea. (Endnote 8) In one case, (Endnote 9) "sea" is defined as waters beyond smooth or partially smooth waters, which are geographically defined (sometimes varying seasonally). Another country (Endnote 10) defines sea-going ships as ones which can be used outside ports, harbours, streams, lakes or other protected water; while in another, (Endnote 11) legislation defines "sea-going" to include ships habitually plying salt waters in ports, harbours, lakes, canals, parts of rivers, etc., communicating with the sea. There is not necessarily any incompatibility between these definitions. The Convention does not limit the discretion left to national laws or regulations to determine in good faith when ships are to be regarded as sea-going for present purposes: (Endnote 12) but once such determination has been made the only possible exceptions are those allowed under Article 1(4). (Endnote 13)

III. "Publicly or privately owned"

38. In the case of most countries bound by Convention No. 147, either they have indicated expressly that both publicly and privately owned ships are covered by the legislation (or perhaps that they are covered by separate pieces of legislation), (Endnote 14) or else the legislation has seemed in any event to apply without discrimination in this respect. Since Article 1(1) is clear in providing that both publicly and privately owned ships are covered by the Convention, the Committee will raise the matter where it appears that publicly owned ships are not covered (Endnote 15) or that only publicly owned ships are covered. (Endnote 16)

IV. "Trade or ... other commercial purpose"

39. The Convention specifically applies to ships engaged in the transport of cargo or passengers for the purpose of trade, and in this it uses wording found in earlier maritime Conventions (for example, Nos. 68, 69, 73, 91 and 92). In the present case, however, the expression "or is employed for any other commercial purpose" clearly brings more extensive coverage. It results from an amendment proposed by the Seafarers' group in the responsible Committee of the PTM Conference in order to avoid excluding in addition to fishing vessels "those vessels which were engaged in the transport (and sometimes also in the processing) of fish from the fishing grounds to the port and to other vessels carrying out similar transport activities." (Endnote 17) The effect is certainly to exclude from coverage ships of war and other governmental ships operated for non-commercial purposes (something which is done explicitly in other Conventions, for example, the Repatriation of Seamen Convention, 1926 (No. 23), and Nos. 22, 145, 146, 163. In Article 1(1) of Convention No. 147, this wording may be said to raise a presumption that any ship, when it is regarded in national laws or regulations as sea-going for the purpose of the Convention and when it is employed for a commercial purpose, is covered, such presumption being rebuttable only under Article 1(4). No distinction is made between foreign trade and home trade vessels. (Endnote 18) The coverage of the Convention is clearly not limited to ships engaged in the transport of cargo or passengers: other purposes covered by the Convention might include, for example, in so far as they are commercial, activities involving surveying, scientific research, dredging, tendering, the exploration or exploitation of mineral resources, the control of pollution, salvage, and various activities (other than catching) connected with the living resources of the sea. (Endnote 19)

V. "Tugs"

40. Though tugs are expressly excluded from the application of certain earlier Conventions (most notably Nos. 92 and 133, as to crew accommodation), sea-going tugs are expressly covered by Convention No. 147 (Article 1(3)). In most countries bound by Convention No. 147 tugs are covered either explicitly or implicitly by national provisions governing sea-going ships, although in one (Endnote 20) they are excluded; in another (Endnote 21) there are no provisions, in the apparent absence of any such vessels in the country. In response to a direct request of the Committee, one country (Endnote 22) has provided information on the standards applied to sea-going tugs, which are slightly less exacting in some respects, but apparently in conformity none the less with Convention No. 147.

VI. "Sail" ships

41. As in the case of other ILO maritime Conventions, ships primarily propelled by sail are excluded from the application of Convention No. 147, whether or not they are fitted with auxiliary engines (Article 1(4)(a)). The wording was also taken from Article 1(4)(b) of Convention No. 133. No information has been provided as to any difficulties in this respect.

VII. "Fishing", "whaling" and "similar pursuits"

42. Under Article 1(4)(b), the Convention does not apply to "ships engaged in fishing or in whaling or in similar pursuits". The wording is taken from Article 1(4)(c) of Convention No. 133 and it reflects an exception found also in Convention No. 92. As regards the first limb (ships engaged in fishing), the exception is distinctly narrower than that found in certain other Conventions (for example, Nos. 91, 109 and 146) which exclude ships "engaged in fishing or in operations directly connected therewith". (Endnote 23) The fishing industry comprises many types of vessels, several of which (for example, mother ships, fish carriers, hospital ships, protection vessels, survey vessels, research vessels and training vessels) have been classed by international agreement (Endnote 24) as non-fishing vessels. Given that these are not "ships engaged in fishing", they would seem to be covered by Convention No. 147. In this classification, the term "fishing vessel" is generally used to distinguish fishery vessels which are engaged in catching operations. (Endnote 25) Thus, it is clear that apart from ships engaged in whaling -- which are themselves specifically excluded from the Convention -- the "similar pursuits" referred to are catching operations involving the living resources of the sea, i.e. other aquatic animals (such as seals, walrus and mollusc or crustacean shell-fish) and possibly vegetation. It is (Endnote 26) the activity in which ships are engaged rather than their type which governs their exclusion from or inclusion in the Convention. Thus in some countries which have ratified Convention No. 147 "fishing vessels" as such are excluded from relevant legislation; (Endnote 27) in others, fishing vessels may in fact be covered by some provisions applicable to all sea-going ships. (Endnote 28) National definitions of "fishing vessels" as apparently applied in practice tend to correspond with the international practice and understanding of the term (for example, "cargo vessel which is used for catching fish or other marine animals" (Endnote 29) or reference to a ship used for catching fish or other marine animals, for harvesting marine vegetation or for exploitation of the living resources of the sea (Endnote 30)).

VIII. "Small vessels"

43. The exclusion or possible exclusion of small vessels by reference to their tonnage or capacity (Endnote 31) is common in ILO maritime Conventions. For Convention No. 147, the decision as to which "small vessels" are to be excluded is to be taken under Article 1(4)(c) by the competent authority in each country in consultation with the most representative organisations of shipowners and seafarers. The responsible Committee of the PTM Conference preferred this formulation to that used in Article 1(4)(a) and (5)(a) of Convention No. 133, which automatically excludes ships under 1,000 tons, those between 200 and 1,000 being covered "where reasonable and practicable". (Endnote 32) It is quite possible that the question as to which ships are excluded by virtue of the small vessels clause in Convention No. 147 may be answered differently for each of the matters dealt with in Articles 2, 3 and 4: in several countries (Endnote 33) this follows from the fact that they are dealt with by different pieces of legislation, although one country has indicated a single definition of small vessels for purposes of Convention No. 147 corresponding to the comparatively high threshold in the legislation relating to just one of the Appendix Conventions. (Endnote 34)

44. Some of the instruments included in the Appendix to Convention No. 147 themselves make (Endnote 35) or allow (Endnote 36) exclusions for small vessels of specified size. This is also the case for some of the further provisions of Conventions included in the Appendix to Recommendation No. 155, namely the Officers' Competency Certificates Convention, 1936 (No. 53), and Conventions Nos. 70, 91 and 133. The Committee has considered that, in determining under Article 1(4)(c) of Convention No. 147 which are the small vessels which may be excluded from the requirements of Convention No. 147, regard must be had to the provisions of the respective Conventions included in its Appendix. In the case in point, the Committee has taken the view that -- whether or not shipowners' and seafarers' organisations have been consulted on the matter -- the exclusion of vessels of up to 1,600 GRT from provisions for medical examination of seafarers is not consistent with the notion of substantial equivalence in Article 2(a) of Convention No. 147, since Article 1(3)(a) of Convention No. 73 (included in the Appendix to Convention No. 147 and containing the standards relating to medical examination) excludes vessels of less than only 200 GRT. The Committee has therefore asked the Government concerned to reconsider the scope of the national regulations in consultation with shipowners' and seafarers' representative organisations, with a view to bringing them more into line with the requirements of Convention No. 73. (Endnote 37)

45. To this extent, then, as well as in the requirement to consult the most representative organisations of shipowners and seafarers, the discretion left to member States to exclude small vessels is not unlimited. Although several countries have indeed made exceptions of various kinds by reference to the small size of vessels, others apparently make no such general exclusions. (Endnote 38) There would appear to be no objection to the government of a State which has ratified Convention No. 147 subsequently redefining small vessels so as to lower the threshold and thus extend the scope of the Convention as applied at the national level, although, clearly, if a decision to narrow the scope by raising the threshold were to be proposed, the consultations laid down in Article 1(4)(c) would be essential. (Endnote 39) Moreover, all international labour Conventions lay down in any event minimum standards and do not prevent States from going beyond the minimum. (Endnote 40)

IX. "Oil rigs" and "drilling platforms", etc.

46. The Article 1(4)(c) exclusion of "vessels such as oil rigs and drilling platforms when not engaged in navigation", subject to the same requirements as to consultation as apply in respect of "small vessels", is a much narrower one than that of "specialist" vessels appearing in the first draft Convention. (Endnote 41) Various governments of countries bound by the Convention (Endnote 42) have indicated that such vessels are not considered as ships for purposes of Convention No. 147, at least when not engaged in navigation or at least for some matters dealt with in the Convention, though others do not seem to have made any formal decision. (Endnote 43)

X. Inter-relationships of provisions as to scope

47. Article 1(5) of Convention No. 147 states "Nothing in this Convention shall be deemed to extend the scope of the Conventions referred to in the Appendix to this Convention or of (Endnote 44) the provisions contained therein". The effect of this seems to be, first, to confirm that Convention No. 147 does not in any sense (either formally or by implication) revise the Conventions appended to it by extending their scope. Further, a ship covered in general by Convention No. 147 may nevertheless not be covered by the particular provisions of an Appendix Convention with more restricted scope. Thus, even though ships such as sea-going tugs are prima facie covered by Convention No. 147 (Article 1(3)), the provisions of Convention No. 92 do not apply to them (Article 1(3) of Convention No. 92) either where Convention 92 is itself ratified or where, Convention No. 147 being ratified, substantial equivalence to the provisions of Convention No. 92 is to be ensured under Article 2(a). Conversely, a ship excluded from the scope of Convention No. 147 by Article 1 cannot be brought back into its scope by the fact that it is covered by an Appendix Convention. Thus, ships such as those engaged in fishing or whaling or similar pursuits are not covered by Convention No. 147, and the fact that they are or may be covered by some of the Conventions included in the Appendix (i.e. the Minimum Age (Sea) Convention, 1920 (No. 7), the Sickness Insurance (Sea) Convention, 1936 (No. 56), the Minimum Age (Sea) Convention (Revised), 1936 (No. 58), and Conventions Nos. 55 and 92) cannot bring them within the scope of Convention No. 147 in contradiction to Article 1(4)(b).

48. Care must be taken to ensure that ratified Appendix Conventions which are of general scope and not only addressed to the maritime sphere (namely the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Medical Care and Sickness Benefits Convention, 1969 (No. 130), and the Minimum Age Convention, 1973 (No. 138)) are, in accordance with Article 2(a), applied in good faith to ships covered by Convention No. 147. Conventions Nos. 87 and 98 contain no provisions as to scope which create any difficulties in relation to Convention No. 147. (Endnote 45) The questions of minimum age and social security create different problems, however, and they have been treated in ways which may produce different results. The difference may be said to arise from the framing and application of Convention No. 147's scope provisions so that the standards it refers to are applied in rem (i.e. to given ships) rather than in personam (i.e. to seafarers as such).

49. Minimum age. Under Article 2(a) of Convention No. 147, a State must "in so far as it is not otherwise bound to give effect to the Conventions in question" have laws or regulations which are substantially equivalent to Convention No. 138 or Convention No. 58 or Convention No. 7. (Endnote 46) Where either Convention No. 58 or Convention No. 7 is ratified there are no problems as to scope, since these Conventions aim specifically at minimum age on board ship and must be duly applied in full. Where none of the three Conventions is ratified, the Committee will look to find substantial equivalence to the lowest admissible standards, i.e. those laid down in Convention No. 7. Where only Convention No. 138 is ratified, the application of that Convention in good faith would naturally involve the guarantee of a minimum age for employment on "means of transport registered in (the) territory" of the member State, in accordance with the compulsory declaration made under Article 2(1) of that Convention. In this way, a minimum age of at least 14 years for all seafarers employed on board ship would be applicable.

50. Social security. Under Article 2(a) of Convention No. 147 a State must similarly "in so far as it is not otherwise bound to give effect to the Conventions in question" have laws or regulations which are substantially equivalent to Convention No. 55 or Convention No. 56 or Convention No. 130. (Endnote 47) Where none of the three Conventions is ratified, the Committee will look to find substantial equivalence to either Convention No. 55 or -- if there is a compulsory insurance system in the country in question -- Convention No. 56. Where the State has ratified one -- or more -- of the three, exclusions under each of those three Conventions may be made use of with an exaggerated effect on the coverage of persons who should, under Convention No. 147, be protected, i.e., on the face of it, those employed on board ships registered in the member State's territory and falling within the scope of Convention No. 147 as defined in Article 1. Thus, where only Convention No. 130 is ratified, there might be a difficulty if exclusions made under Article 5 -- especially of "casual" employees and those constituting up to 10 per cent of all other employees -- have a particular impact on seafarers. (Endnote 48) In the case of an apparent Article 5 exclusion in this situation, (Endnote 49) the Committee has solicited information from the Government to try and clarify what percentage of seafarers on nationally registered ships (including foreigners and those employed on a casual basis) are covered by the national social security scheme. There may be further cause for concern where the "persons protected" definitions used for purposes of Convention No. 130 (under Articles 10 or 11 and 19 or 20 -- in particular those based on residence or those operating in countries "whose economy and medical facilities are insufficiently developed") have the effect of excluding from protection a large proportion of persons employed on board ship who are not resident in the country of the ship's registration. Under Convention No. 55 there might be a difficulty if the exceptions allowed under Article 1(2) (especially, perhaps, paragraph (b): "persons employed on board by an employer other than the shipowner") were used extensively. Under Convention No. 56, difficulty might arise as concerns the exception of "persons below or above prescribed age limits" (Article 1(2)(e)); but in particular the allowable exception of "persons not resident in the territory of the Member" (Article 1(2)(d)) is again potentially significant, given the number of ships now operating with the services on board of seafarers and other workers of all kinds who are not resident in the country of the ship's registration. (Endnote 50) The Committee's approach to social security would thus be similar to its approach to minimum age, in that the requirements of Convention No. 147 would have to be fulfilled in good faith. (Endnote 51) But this would mean that -- ratification of Conventions Nos. 55, 56 and 130 notwithstanding -- social security arrangements as laid down in Article 2(a) of Convention No. 147 would have to be made only for an acceptable proportion of persons on board nationally registered ships rather than for all such persons. Thus, whereas a minimum age standard would be applied to all such seafarers, not all of them would necessarily be covered by social security measures. The exclusion from social security measures of, say, foreign non-resident seafarers might in these circumstances not be compatible with the good faith application of Convention No. 147 in a country with an open register (including one with an off-shore or international register), where a large proportion of seafarers would actually not be covered.

51. The power to determine under Article 1(2) of Convention No. 147 when ships are to be regarded as sea-going ships for purposes of the Convention (such determination having in practice an excluding effect) and the power to make exclusions under Article 1(4)(c) in respect of small vessels and oil rigs and drilling platforms when not engaged in navigation reflect the Conference's wish to maintain a certain flexibility in the Convention. They are exercised in different ways: the first by national laws or regulations, the second by decision of the competent authority in consultation with the most representative organisations of shipowners and seafarers. They are independent of each other: it may well be that some vessels (for example, coastal vessels) can be excluded under more than one head. It is noticeable that, in contrast to Article 1(2) and (4)(c), the provisions in Article 1(1), (3) and (4)(a) and (b) referring to public or private ownership, trade or other commercial purpose, tugs, sail ships, and ships engaged in fishing or whaling or similar pursuits do not allow States any additional discretion to make determinations which would have a further excluding effect. In the end, the limited flexibility allowed by the provisions as to scope in Article 1(2) and (4)(c) of Convention No. 147 must invariably operate within the bounds and constraints imposed by both the general object and purpose of the Convention and the specific requirements laid down in Articles 2, 3 and 4.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Endnote 32

Endnote 33

Endnote 34

Endnote 35

Endnote 36

Endnote 37

Endnote 38

Endnote 39

Endnote 40

Endnote 41

Endnote 42

Endnote 43

Endnote 44

Endnote 45

Endnote 46

Endnote 47

Endnote 48

Endnote 49

Endnote 50

Endnote 51

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C007 Minimum Age (Sea) Convention, 1920
Conventions: C023 Repatriation of Seamen Convention, 1926
Conventions: C053 Officers' Competency Certificates Convention, 1936
Conventions: C055 Shipowners' Liability (Sick and Injured Seamen) Convention, 1936
Conventions: C056 Sickness Insurance (Sea) Convention, 1936
Conventions: C058 Minimum Age (Sea) Revised) Convention, 1936
Conventions: C070 Social Security (Seafarers) Convention, 1946
Conventions: C087 Freedom of Association and Protection of the Right to Organise Convention, 1948
Conventions: C091 Paid Vacations (Seafarers) Convention Revised), 1949
Conventions: C092 Accommodation of Crews Convention Revised), 1949
Conventions: C098 Right to Organise and Collective Bargaining Convention, 1949
Conventions: C130 Medical Care and Sickness Benefits Convention, 1969
Conventions: C133 Accommodation of Crews (Supplementary Provisions) Convention, 1970
Conventions: C138 Minimum Age Convention, 1973