Maximum period of service on board and when the right to repatriation arises

How long a seafarer may be kept on board is not settled by the period written in the contract. MLC, 2006 sets no maximum for a contract of employment. Instead it requires the flag State to fix a maximum period of service on board. The calculation goes wrong at the point where those two are treated as one.

This article takes the wording of MLC, 2006 Standard A2.5.1 and Standard A2.4 and sets out where the limit on service comes from and when the right to repatriation arises.

The 12 months is a limit on service on board, not on the contract

MLC Standard A2.5.1, paragraph 2 lists what the flag State must prescribe in laws, regulations or collective agreements. Item (b) is the period of service.

(b) the maximum duration of service periods on board following which a seafarer is entitled to repatriation – such periods to be less than 12 months; and

Read as written, two things follow. First, once that period passes the seafarer is entitled to repatriation. It is not a structure in which the company approves repatriation; it is one in which an entitlement arises. Second, the limit the flag State fixes must be less than 12 months. Twelve months is not the limit.

Contract length sits apart from this limit. In question C2.1.j of the Compendium of Maritime Labour Instruments (fifth revised edition), the ILO explains that the Convention does not set a maximum period for a contract of employment and that Standard A2.1 envisages agreements of an indefinite period. The same answer states that the duration of an agreement and the maximum period of continuous service on board are two different concepts.

So whether a six-month agreement is extended or an agreement without a fixed end date is used, the limit on service on board still has to be observed. Reading the contract alone will not tell you when that limit is reached.

The 11 months is what you get by overlaying two provisions

Setting the limit on service at less than 12 months does not mean a seafarer may be kept for 11 months and 29 days. The annual leave provision binds as well.

2. Subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment.

The basis in Standard A2.4, paragraph 2 is a minimum of 2.5 calendar days for each month of employment. Over 12 months that is 30 days. Keep a seafarer on board for 12 continuous months and the leave earned in that period has nowhere to go.

In the same answer, the ILO explains that the interaction of the two provisions establishes limitations on the period of continuous service on board, which should in principle be 11 months. That figure is not a number in the treaty text. It is the ILO reading two provisions together. The numbers in the text are less than 12 months and 2.5 calendar days per month.

A practical difference follows. Service is counted as continuous service on board, not per contract. The ILO explains that signing consecutive agreements covering more than 12 months is possible, while the limit on continuous service on board still applies. Writing a new agreement does not reset the clock on service.

Annual leave cannot be removed by an agreement to forgo it

The route of taking a waiver in order to extend service is closed.

Standard A2.4, paragraph 3 states that any agreement to forgo the minimum annual leave with pay prescribed in that Standard is prohibited. The same paragraph carries an exception: cases provided for by the competent authority. So the channel through which a waiver can open is a decision of the authority, not an agreement between a company and a seafarer.

As service approaches the limit, then, two things need checking: how many months the flag State fixed as the maximum, and whether any decision permitting seafarers to forgo leave exists. Neither is a value the company sets.

Repatriation is also triggered by three grounds unrelated to time

The limit on service is one of several grounds on which the right to repatriation arises. Standard A2.5.1, paragraph 1 lists three separately.

• The seafarers’ employment agreement expires while they are abroad
• The agreement is terminated, either by the shipowner or by the seafarer for justified reasons
• The seafarers are no longer able to carry out their duties under the agreement, or cannot be expected to carry them out in the specific circumstances

The third ground has nothing to do with elapsed time. Where injury or illness makes the duties impossible, the entitlement arises regardless of how much service is left. Judging repatriation only inside the relief plan misses that route.

The cost of repatriation cannot be shifted to the seafarer

Standard A2.5.1, paragraph 3 prohibits two things. A shipowner may not require a seafarer to make an advance payment towards the cost of repatriation at the beginning of employment, and may not recover the cost from the seafarer’s wages or other entitlements.

Here too there is one exception: where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. That a finding is required is the point. A deduction from wages on the company’s own assessment does not fall under it.

The shipowner’s right to recover the cost under third-party contractual arrangements stands separately (paragraph 4). Charging the seafarer and settling through insurance or another contract are different questions.

A ship can be detained where the shipowner does not repatriate

Where a shipowner fails to make arrangements for or to meet the cost of repatriation, the competent authority of the flag State arranges it (paragraph 5(a)). If the flag State fails to do so, the State from which the seafarers are to be repatriated or the State of their nationality may arrange it and recover the cost from the flag State. Costs incurred by the flag State are recoverable from the shipowner (paragraph 5(b)).

Paragraph 6 adds a means of enforcement. A Member that has paid the cost of repatriation may detain, or request the detention of, the ships of the shipowner concerned until reimbursement has been made. Postponing a repatriation does not stay confined to the one ship.

Holding the limit means watching sign-on and planned sign-off together

Put these provisions into records and the values needed are few.

• Sign-on date. The point from which service is counted
• Planned sign-off date. What shows whether relief will be ready before the limit is reached
• Contract expiry date. Expiry abroad is itself a ground for repatriation
• The maximum period of service fixed by the flag State. It can differ by ship

Without these in one place, the calculation lives in somebody’s memory. Service on board grows by a day at a time, and a limit found to have been passed cannot be undone afterwards. Arranging relief involves selecting a replacement, travel and visas, so it has to start before the limit is reached.

These provisions are given effect through flag State law. The quotations above are from MLC, 2006 as amended, including the 2022 amendments, and the explanation of the 11 months is from a question and answer in the ILO Compendium of Maritime Labour Instruments, fifth revised edition. The applicable limit has to be confirmed in flag State law and in any applicable collective agreement.