The reach of labour-supplying responsibilities and what a company employing foreign crew confirms (MLC Regulation 5.3)

Say foreign seafarers come through a recruitment and placement service and join the ship. The flag of the ship and the nationality of those seafarers are different. Working and living conditions on board are the flag State’s business. So what is the business of the State that sent the seafarers.

MLC, 2006 Regulation 5.3 answers the question. Its heading is labour-supplying responsibilities, and those responsibilities do not attach only to ships flying that State’s flag. This article looks at how far the responsibility of a State that is not the flag State reaches.

Regulation 5.3 does not cut down flag State responsibility, it sets one beside it

Purpose: To ensure that each Member implements its responsibilities under this Convention as pertaining to seafarer recruitment and placement and the social protection of its seafarers

1. Without prejudice to the principle of each Member’s responsibility for the working and living conditions of seafarers on ships that fly its flag, the Member also has a responsibility to ensure the implementation of the requirements of this Convention regarding the recruitment and placement of seafarers as well as the social security protection of seafarers that are its nationals or are resident or are otherwise domiciled in its territory, to the extent that such responsibility is provided for in this Convention.

The sentence opens with Without prejudice to. That means the principle of flag State responsibility is left untouched. Then comes also. Nothing takes the place of flag State responsibility; one more is added beside it.

The added responsibility covers two subjects. Recruitment and placement of seafarers, and social security protection. Conditions on board such as rest hours or accommodation are not on this list.

And a limit is attached at the end of the sentence. to the extent that such responsibility is provided for in this Convention. As far as the Convention itself provides for that responsibility. It does not mean the State that sent the seafarers answers for everything on that ship.

Standard A5.3 takes hold of services established on the territory

1. Each Member shall enforce the requirements of this Convention applicable to the operation and practice of seafarer recruitment and placement services established on its territory through a system of inspection and monitoring and legal proceedings for breaches of licensing and other operational requirements provided for in Standard A1.4.

Here the hook changes. It is not the person but the territory. established on its territory, that is, services set up on that State’s territory. Which country’s ships those services send seafarers to is not in this sentence.

What enforcement consists of is set out as well. A system of inspection and monitoring, and legal proceedings for breaches. What can be breached is the licensing requirements and other operational requirements, and the place those requirements are written down is Standard A1.4. So Standard A5.3 creates no new substantive rule. It is the provision that makes the supplying State actually enforce what Standard A1.4 already holds.

Overlay the two provisions and the flag State and the supplying State turn out to use different hooks.

Item	Flag State	Labour-supplying State
What the responsibility hooks onto	Ships flying that State’s flag	Services established on its territory, and its nationals and residents
Subject matter	Working and living conditions on board	Recruitment and placement, and social security
When the ship changes	The State answering for it changes	It stays where it was

Flag State responsibility hooks onto ships that fly its flag, so it follows the ship. When a seafarer moves to a ship under another flag, the State that looks at the ship changes. Supplying State responsibility hooks onto people and services, so it stays where it was.

Having set up a system is not enough to fill the report

3. Each Member shall establish an effective inspection and monitoring system for enforcing its labour-supplying responsibilities under this Convention.

4. Information about the system referred to in paragraph 3 of this Regulation, including the method used for assessing its effectiveness, shall be included in the Member’s reports pursuant to article 22 of the Constitution.

What paragraph 3 requires is a system, and the adjective attached to it is effective. Paragraph 4 sends that system into the Member’s reports. But the system is not all that gets reported. the method used for assessing its effectiveness goes in with it.

Overlay the two paragraphs and the structure shows. The fact that a licensing scheme exists in the law does not fill paragraph 4 on its own. What the effectiveness of that scheme is measured by has to be written down as well. Supplying State responsibility is built as a system that keeps running, not as a document drawn up once.

Guideline B5.3 says the shipowner may be anywhere

1. Private seafarer recruitment and placement services established in the Member’s territory and securing the services of a seafarer for a shipowner, wherever located, should be required to assume obligations to ensure the proper fulfilment by shipowners of the terms of their employment agreements concluded with seafarers.

wherever located attaches to the shipowner. If the service sits on that State’s territory, it does not matter where the shipowner sits. That one phrase is the clearest sign that supplying State responsibility is not confined to ships under that State’s own flag.

The substance goes a step further too. Services are to be required to assume obligations to ensure that shipowners properly fulfil the terms of the employment agreements they concluded with seafarers. The sentence is aimed at the arrangement where a service places a seafarer and then lets go.

The verb is worth reading, though. Standard A5.3 says shall enforce, while Guideline B5.3 says should be required. The first is a Standard and the second is a Guideline. So whether this obligation actually sits on the service depends on how that State took the Guideline up.

Where a company meets this responsibility is on the ship’s certificate side

The supplying State’s oversight looks distant from a company. Yet the Convention plants that oversight on the certificate side of the ship as a single item.

Appendix A5-I lists the working and living conditions that the flag State has to inspect and approve before certifying a ship. On that list sits Use of any licensed or certified or regulated private recruitment and placement service. The same item appears in Appendix A5-III, the list of general areas an authorized officer carrying out a port State inspection takes into a detailed inspection.

In the list in Part I of the Declaration of Maritime Labour Compliance (DMLC), the provision this item points to is Regulation 1.4. Part II is then the box where the shipowner writes the measures drawn up to keep the ship compliant between inspections for that same item.

This is where the line falls. Licensing and supervising the services is the supplying State’s work. Confirming that the service the ship used is licensed or certified or regulated, and leaving that confirmation on board, is the company’s work. What the officer reads on the ship is not the supplying State’s oversight system but evidence that the route this ship used met the requirement.

Worth confirming

The passages above come from Regulation 5.3, Standard A5.3 and Guideline B5.3 of the consolidated MLC, 2006 (including the 2022 amendments), and from Appendices A5-I and A5-III. The Regulation and the Standard are mandatory, but the shape of the licensing scheme, how often services are inspected, and how far social security is extended are filled in by that State’s law. Guideline B5.3 is not a Standard, so how that State took it up has to be read separately. Whether the seafarer’s State of nationality and State of residence are parties to the Convention, which territory the service is established on, and whether the licence or certification that State granted can be shown on board are where the actual judgement starts.