Three of the nine social security branches and the split between flag and residence (MLC Regulation 4.5)

Can a seafarer’s social security be worked out from the flag of the ship. MLC, 2006 Regulation 4.5 and Standard A4.5 say no. The provisions split the responsibility along two axes, and the one the flag State carries is narrower than it looks. This article reads that dividing line.

There are nine branches and the floor at ratification is three

The branches to be considered with a view to achieving progressively comprehensive social security protection under Regulation 4.5 are: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit, complementing the protection provided for under Regulations 4.1, on medical care, and 4.2, on shipowners’ liability, and under other titles of this Convention.

Medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit. And the same sentence writes that this complements the medical care of Regulation 4.1 and the shipowner liability of Regulation 4.2. It is a layer on top, not an overlap.

2. At the time of ratification, the protection to be provided by each Member in accordance with Regulation 4.5, paragraph 1, shall include at least three of the nine branches listed in paragraph 1 of this Standard.

Not all nine but at least three. And the moment is ratification. Paragraph 2 of the Regulation sets the goal as progressively comprehensive protection; three is the starting line.

What that structure means is one thing. That a country has ratified the Convention cannot be read as nine branches being covered. Which three they are differs country by country.

The flag State’s responsibility reaches medical care and shipowner liability

5. Each Member’s responsibilities with respect to seafarers on ships that fly its flag shall include those provided for by Regulations 4.1 and 4.2 and the related provisions of the Code, as well as those that are inherent in its general obligations under international law.

What the provision names as the flag State’s responsibility for seafarers on its ships is Regulations 4.1 and 4.2: medical care on board and ashore, and shipowner liability. The rest of the nine branches does not attach here automatically.

The rest is the responsibility of the State where the seafarer ordinarily resides

3. Each Member shall take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph 1 of this Standard to all seafarers ordinarily resident in its territory. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The resulting protection shall be no less favourable than that enjoyed by shoreworkers resident in their territory.

The test is ordinarily resident in its territory. Not nationality, not the flag of the ship being served on, but ordinary residence.

A floor on the level attaches as well. The resulting protection shall be no less favourable than that enjoyed by shoreworkers resident in that territory. Regulation 4.5 paragraph 3 writes the same benchmark once more for seafarers subject to that country’s social security legislation.

Axis	Who carries it	For what
Flag State	Seafarers on ships flying its flag	Medical care under Regulation 4.1 and shipowner liability under Regulation 4.2
State of residence	Seafarers ordinarily resident in its territory	Complementary protection across the nine branches

On a ship carrying foreign crew these two axes point at different countries. Even within one ship, seafarers resident in different countries fall under different systems.

Agreements can change that allocation

Paragraph 4 opens that route. Members may, through bilateral and multilateral agreements and through provisions adopted in the framework of regional economic integration organizations, determine other rules concerning the social security legislation to which seafarers are subject.

So working out what actually applies does not end with the Convention text. Whether a social security agreement exists between those two countries changes the answer.

Which branches are covered is registered and public

Paragraph 10 requires each Member to specify at ratification the branches for which protection is provided, and to notify the Director-General of the International Labour Office when protection is later extended to further branches. The Director-General maintains a register of this information and makes it available to all interested parties.

That it is checkable matters in practice. Which three branches a country declared stays on a public register.

Rights already acquired are to be maintained regardless of residence

8. To the extent consistent with their national law and practice, Members shall cooperate, through bilateral or multilateral agreements or other arrangements, to ensure the maintenance of social security rights, provided through contributory or non-contributory schemes, which have been acquired, or are in the course of acquisition, by all seafarers regardless of residence.

What is covered is both rights acquired and rights in the course of acquisition, through contributory or non-contributory schemes alike. And regardless of residence points the other way from paragraph 3, which allocated responsibility by residence. Allocate by residence, but keep what has already accrued when residence changes.

Paragraph 9 asks for a place to handle disputes. Each Member has to establish fair and effective procedures for their settlement.

Worth confirming

The passages above come from printed pages 77 to 79 of the consolidated MLC, 2006 (including the 2022 amendments). Paragraph 7 records that the protection may sit in laws or regulations, in private schemes, in collective bargaining agreements, or in a combination of these. Where each seafarer on that ship ordinarily resides, which branches that country declared, and whether a relevant social security agreement exists are where the actual judgement starts.