Chapter IV. Engagement of seafarers

209. Article 2(d) of Convention No. 147 formulates the undertaking by the State in respect of adequate procedures for the engagement of seafarers and the investigation of complaints about engagement. The undertaking is attenuated as between, first, home-registered and foreign-registered vessels; second, seafarers of the State's own and those of another nationality; and, third, engagements taking place in the national territory and those taking place abroad. In this way Convention No. 147 develops an aspect of the placing of seafarers not specifically covered by the Placing of Seamen Convention, 1920 (No. 9), which is concerned mainly with the institutional facilities established for finding employment for seafarers within the territory. (Endnote 1) Article 3 of Convention No. 147 deals with the particular question of the nationals of a State which has ratified it signing on for employment on a ship registered in a State which has not ratified it (the problems involved in that being presaged in Convention No. 147's preambular reference to Recommendation No. 107).

210. The engagement and complaints procedures provided for in Article 2(d) are not restricted to cases of substandard ships (in the sense of ships failing to meet Article 2(a) standards), but apply to engagement in general. Article 2(d) and Article 3 of Convention No. 147 together must be taken to elaborate on by and large different aspects and a different stage of maritime employment than Article 2(a). Some overlap there nevertheless is, to the extent that Article 2(a) incorporates, via the Appendix, a Convention (No. 22) which lays down procedures precisely for engagement: (Endnote 2) the substantive requirements of that Convention -- whether it is to be applied by virtue of the substantially equivalent clause or of being otherwise binding on the State -- are more far-reaching and more detailed than those of Article 2(d), although the latter does both add a requirement of tripartite consultations where appropriate (Endnote 3) and raise the "standard of proof". (Endnote 4) Under Article 2(d), the Committee is therefore concerned first with the emphasis placed on supervising engagement procedures. The other ingredient added by Article 2(d) is that of adequate procedures for the investigation of complaints, making explicit something which could only be implied under Article 3(6) and Article 15 of Convention No. 22 (requirements as to legislation for any further formalities and safeguards considered necessary, and measures to ensure compliance), and the Committee is thus concerned secondly with this.

211. One noticeable feature of Article 2(d)(ii) and Article 3 is that they enter into the domain of foreign-registered ships. In this, too, they go beyond Convention No. 22, although not beyond Convention No. 9. However, they go no further in this respect than providing for procedures for complaints relating to engagement in the State's own territory and for a State to give advice to its own nationals.

212. The embryo Article 2(d) can be found in the original Office draft instrument, (Endnote 5) which included the State's undertaking simply "to supervise the engagement of seafarers in its territory on vessels of any nationality" and in doing so to give effect, in so far as the State was not otherwise so bound, to Conventions Nos. 9 and 22. (Endnote 6) The references in clause 4(c) to both these Conventions were removed by the PTM Conference Committee. (Endnote 7) The draft later went through a series of permutations in respect of the considerations referred to in paragraph 209 above (second sentence), during which from the primary concept of engagement procedures was born the secondary one of complaints procedures. (Endnote 8)

213. What became Article 3 of Convention No. 147 is directly drawn from Paragraph 1 of Recommendation No. 107, (Endnote 9) which called on States to do everything in their power to discourage seafarers within their territory from joining vessels registered abroad unless the conditions of such engagement were generally equivalent to those applicable under collective agreements and social standards accepted by bona fide shipowners' and seafarers' organisations of maritime countries where such agreements and standards are traditionally observed. The first Office draft instrument (Endnote 10) also included an explicit undertaking to take account of Recommendation No. 107. The Office had moreover drafted a Programme for the Effective Attainment of Standards, (Endnote 11) which called on governments, where there was no evidence, such as ratification or a statement of the shipowner, that minimum standards were met on foreign vessels, to require such evidence as a condition for not applying that Recommendation's "discouragement" injunction. It was in the responsible Committee of the International Labour Conference (Endnote 12) that that provision was lifted from the Programme (the Programme in the end being virtually completely reproduced in Convention No. 147 and Recommendation No. 155), recast and inserted in the draft Convention.

I. Engagement procedures

214. Under Article 2(d)(i) of Convention No. 147, a State undertakes to ensure that there are adequate procedures for the engagement of seafarers on ships registered in its territory; such procedures should be subject to over-all supervision by the competent authority, after tripartite consultation with representative organisations of shipowners and seafarers where appropriate. The procedures in question are not defined in Convention No. 147, but, from the reference to Convention No. 9 as well as Convention No. 22 in the original draft and the fact that the PTM Conference Committee had the principles of both Conventions in mind, (Endnote 13) the kind of procedures concerned may be surmised; (Endnote 14) it is not meant to imply that any obligations relating to Convention No. 9 as such are contained in Convention No. 147. Those procedures would, then, involve essentially an efficient and adequate system of public employment offices for finding employment for seamen (defined in Article 1 of Convention No. 9 to exclude officers) without charge (Article 4). Leaving aside the question of fee-charging agencies, one additional Convention No. 9 principle may perhaps be taken into account for Article 2(d)(i) purposes: that of free choice for both seafarer and shipowner (Article 6). Article 2(d)(i) goes further than Convention No. 9 in that the procedures required should extend to officers (Endnote 15) as well as ratings (cf. Article 9); and should also apply to non-national seafarers, since Article 2(d)(i) -- unlike Article 2(d)(ii) -- makes no distinction on the basis of nationality. The State's undertaking in Article 2(d)(i) -- again unlike that in Article 2(d)(ii) -- is not restricted to engagement "in its territory": adequate procedures have to cater also for the engagement of national seafarers on home-registered ships while abroad. (Endnote 16) On the other hand, Article 2(d)(i) does not apply to engagement on foreign-registered ships (and in this it is narrower than Convention No. 9, under which a system of seafarers' placement offices covers all placement regardless of the nationality of the ship and under which the prohibition on fee-charging would also extend to engagement on foreign-registered ships).

215. Thirteen (Endnote 17) of the States which have ratified Convention No. 147 are bound by Convention No. 9. Most of these have given information on engagement procedures as required by Article 2(d)(i). Most often there is a separate public seafarers' employment service apart from the general one; in some countries placements are made also by shipowners' and seafarers' organisations and by private agencies; the service is usually free. (Endnote 18) However, under Article 2(d)(i) of Convention No. 147, the Committee has in some cases asked for information as to the establishment of procedures (Endnote 19) or their application to foreign seafarers in particular. (Endnote 20)

216. In 1972, when the Committee considered article 19 reports on Recommendations Nos. 107 and 108, it noted that various countries had indicated point (c) of Recommendation No. 108 was applied. (Endnote 21) The Committee recalls that in several of those cases information was provided as to consular or other facilities for engagement abroad. (Endnote 22)

217. Many of the article 19 reports now refer to arrangements for the engagement of seafarers, most often through some system of public placement offices or registration along the lines of Conventions Nos. 9 and/or 145. (Endnote 23) In some cases, mention is made of procedures abroad. (Endnote 24) One country has indicated that a new system is envisaged. (Endnote 25) In another, the system appears to cover only home-registered vessels. (Endnote 26) In one, there is direct recruitment by the shipowner, according to principles laid down in legislation. (Endnote 27) Further information is contained in another recent analysis made by the Office. (Endnote 28)

II. Complaints procedures

218. The State's undertaking under Article 2(d)(i) includes the commitment to ensuring there are adequate procedures for the investigation of complaints arising in connection with the engagement of seafarers on ships registered in the State's territory. That commitment applies regardless of the nationality of the seafarer and the place where the subject of the complaint arises. (Endnote 29) Where, however, the complaint relates to a foreign-registered ship, Article 2(d)(ii) applies: the State undertakes to ensure that there are adequate procedures for the investigation of complaints as to the engagement in its territory of its own national seafarers on foreign-registered ships; it also undertakes to ensure (Endnote 30) that any complaint as to the engagement in its territory of either national or foreign seafarers on foreign-registered ships is promptly reported to the competent authority of the State of registration, and a copy forwarded to the Director-General of the ILO; (Endnote 31) Article 2(d)(ii) complaints should if possible be made at the time of the engagement. There is no provision as to engagement outside the territory on foreign ships. In Article 2(d)(ii), it is immaterial whether the foreign seafarers are of the same nationality as the ship.

219. The Committee has examined information on engagement complaints procedures from nearly all countries bound by Convention No. 147, and where none was available on one or another aspect it has requested such information. There seem to be complaints procedures as required in several of those countries. (Endnote 32) In one case, (Endnote 33) the Government has referred in this connection to the system of port state control (Endnote 34) and stated that the authorities were unlikely to intervene in response to such complaints: the Committee notes that Article 2(d)(ii) requires investigation only in respect of complaints by national seafarers concerning engagement on foreign ships in the territory, whilst in respect of such complaints by foreign seafarers the requirement is merely to report to the foreign competent authority with a copy to the ILO. In other cases, the Committee has clarified various elements through direct requests. (Endnote 35) There remain some outstanding questions as to the procedures relating to national seafarers engaged on foreign ships, (Endnote 36) as to reporting to the foreign competent authority with a copy to the ILO, (Endnote 37) and as to the establishment and functioning of an engagement complaints procedure in general. (Endnote 38)

220. Only a few governments have indicated in article 19 reports that complaints procedures of the kind laid down in Article 2(d) exist, stating that such complaints are received (Endnote 39) or investigated (Endnote 40) or arbitrated. (Endnote 41) In another country, complaints as to engagement in home-registered ships are referred to a government official, under a binding award; (Endnote 42) and in another complaints as to foreign-registered ships are simply communicated to the consul of the State in question. (Endnote 43)

III. Advice to nationals

221. Under Article 3 of Convention No. 147, a State which has ratified it must in so far as practicable advise its nationals (Endnote 44) as to the possible problems of signing on for employment on a ship registered in a State which has not ratified the Convention, until such advising State is satisfied that standards equivalent to those fixed by the Convention are being applied. Article 3 includes the proviso that measures taken to advise in this way must not violate any principle of free movement of workers contained in a treaty to which the advising State and the State of registration are both party: that is to say, if it arises, the principle of free movement of workers takes precedence. (Endnote 45)

222. Article 3 is worded so as to impose an obligation on countries bound by the Convention. However, that obligation is attenuated by the phrase "in so far as practicable". In these circumstances, the question whether the State is "satisfied" (Endnote 46) that "equivalent" (Endnote 47) standards are being applied and the meaning given to these terms in practice have never been examined in detail by the Committee in its consideration of article 22 reports on the Convention. However, it appears from the recorded discussion in the responsible Committee of the 1976 Conference that what was aimed at by the majority of that Committee was the giving of advice to its nationals as to all ships registered in States which have not ratified the Convention, and not just particular ships: if it were not to take measures to give such advice (in so far as practicable), a State would have to be satisfied that the equivalent standards were being applied by the State of registration in general to ships registered in its territory. (Endnote 48)

223. In 1972, when the Committee considered article 19 reports on Recommendation No. 107, (Endnote 49) it noted that in some cases (Endnote 50) the port shipping master or employment exchanges were instructed to discourage or even prevent national seafarers from accepting employment on foreign flag vessels, particularly if the conditions of employment were found to be inferior to those on national flag vessels or those generally accepted internationally; in other cases, it appeared that Paragraph 1 of Recommendation No. 107 might be taken into account. In some countries, few seafarers were said to be engaged on foreign vessels, but even so there were some bilateral agreements between (especially neighbouring) States and sometimes trade unions would give advice or warnings would be posted as to discrepancies in conditions of employment on foreign vessels.

224. In its examination of article 22 reports, the Committee has found indications that several countries bound by Convention No. 147 take measures to give advice, either through the port authorities or employment offices, or by publications. (Endnote 51) One of these (Endnote 52) indicated that instructions referring directly to Recommendation No. 107 had been issued: though those instructions have since been cancelled (the reason is not given), new instructions were said to be planned and the previous ones to be still applied in practice. The matter has been under consideration in one or two other countries, (Endnote 53) and in four other cases (Endnote 54) the Committee has raised the matter in direct requests.

225. Few other governments have referred to the question in article 19 reports. One has indicated that unions and engagement offices supply such information. (Endnote 55) Others have said that giving such advice is not practicable (Endnote 56) or not necessary, because of employment patterns. (Endnote 57)

IV. Need for action as to engagement

226. From the contents of Article 2(d) and Article 3 of Convention No. 147 and from available information on the way in which they are implemented by States, it is clear that the engagement of seafarers is more than a "mere" procedural matter. In the Convention's perspective it is an area where the substantive right of seafarers to efficient and fair treatment deserves protection, both initially and in the course of their employment, when there is cause for complaint. It is no less an area where there may arise opportunities for promoting the observance of at least the minimum standards aimed at by Convention No. 147 -- under Article 3 especially on foreign-registered ships. Whilst Article 2(d) lays down relatively concrete steps to be taken, Article 3 leaves much more to the judgement of States as to what is practicable. The Committee hopes that further consideration might be given by all countries concerned to what can be undertaken, particularly under Article 3.

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

Endnote 52

Endnote 53

Endnote 54

Endnote 55

Endnote 56

Endnote 57

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C009 Placing of Seamen Convention, 1920
Conventions: C022 Seamen's Articles of Agreement Convention, 1926
Conventions: C145 Continuity of Employment (Seafarers) Convention, 1976
Recommendations:R107 Seafarers' Engagement (Foreign Vessels) Recommendation, 1958
Recommendations:R108 Social Conditions and Safety (Seafarers) Recommendation, 1958