The reach of flag State inspector powers and protection of the complainant (MLC Regulation 5.1.4)

When a flag State inspector comes on board, how far does what that person can do reach. Whether the ship can be stopped from sailing, whether the company is told who reported it, and who receives the inspection report. MLC, 2006 Standard A5.1.4 writes down the inspector’s powers and the limits attached to them together. This article reads the powers and the limits side by side.

The interval can in no case exceed three years

4. Inspections shall take place at the intervals required by Standard A5.1.3, where applicable. The interval shall in no case exceed three years.

The first sentence points at the certificate intervals; the second puts a floor under it: in no case exceed three years. The ceiling stays even for ships not obliged to carry a maritime labour certificate. Where the certificate rules do not apply and there is no intermediate inspection date, the inspection itself still has to come back inside three years.

The inspector has three powers, and the last one is stopping the ship

The power to board, the power to carry out any examination, test or inquiry considered necessary, and the power to require that deficiencies are remedied. One more attaches to the third, conditionally.

(c) to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken.

The threshold for stopping the ship forks two ways: grounds to believe the deficiencies are a serious breach of the requirements of the Convention, or grounds to believe they represent a significant danger to seafarers’ safety, health or security. The parenthesis on the serious breach branch reads including seafarers’ rights, so an infringement of seafarers’ rights, not only a safety appliance, is a candidate for that threshold.

A right of appeal attaches to the action. Paragraph 8 makes it subject to any right of appeal to a judicial or administrative authority. And paragraph 9 grants discretion in the other direction. Where there is no clear breach endangering the safety, health or security of the seafarers concerned and no prior history of similar breaches, the inspector may give advice instead of instituting or recommending proceedings.

Who reported it does not travel to the company

10. Inspectors shall treat as confidential the source of any grievance or complaint alleging a danger or deficiency in relation to seafarers’ working and living conditions or a violation of laws and regulations and give no intimation to the shipowner, the shipowner’s representative or the operator of the ship that an inspection was made as a consequence of such a grievance or complaint.

Two layers. The first is to treat the source of the complaint as confidential. The second is to give no intimation to the shipowner, the shipowner’s representative or the operator that the inspection happened because of such a complaint.

The second is the wider one. Even with no name said, “we came because of a report” narrows the field of candidates on board. The provision closes that route as well.

Paragraph 5 is the counterpart. On a complaint the flag State does not consider manifestly unfounded, it has to investigate and ensure action is taken to remedy any deficiencies found. Intake and investigation stay open while the source stays closed.

The report goes to the master and onto the notice board

12. Inspectors shall submit a report of each inspection to the competent authority. One copy of the report in English or in the working language of the ship shall be furnished to the master of the ship and another copy shall be posted on the ship’s notice board for the information of the seafarers and, upon request, sent to their representatives.

Three destinations: the competent authority, the master, and the ship’s notice board. The purpose of the posted copy is written in: for the information of the seafarers. Letting the seafarers know what the inspection found is what the provision is for.

A language condition attaches too. English or the working language of the ship. Where the working language has not been settled, there is no basis for judging whether this requirement was met.

The burden of proof for wrongful use of the powers is on the complainant

16. Compensation shall be payable in accordance with national laws and regulations for any loss or damage suffered as a result of the wrongful exercise of the inspectors’ powers. The burden of proof in each case shall be on the complainant.

Read alone, the first sentence looks like an open door to compensation for wrongful exercise of the powers. The second narrows it. The burden of proof is on the complainant. Contesting an unreasonable detention or delay means the company has to be holding the material.

Paragraph 15 puts an obligation on the inspector side in the same direction. When an inspection is conducted or measures are taken, all reasonable efforts have to be made to avoid the ship being unreasonably detained or delayed.

Worth confirming

The passages above come from printed pages 87 to 90 of the consolidated MLC, 2006 (including the 2022 amendments). Standard A5.1.4 is mandatory, but inspector qualification and appointment, the shape of the appeal, and the conditions for a compensation claim are set by flag State law. What interval that flag State actually runs, what the working language has been designated as, and where the last inspection report is posted on board are where the actual judgement starts.