The reach of the seafarer definition and the ships left outside (MLC Article II)

Say two contractor technicians stay on board for the whole repair period. They are not on the company payroll and they hold no seafarers’ book. Whether the seafarers’ employment agreement and the rest hour requirements reach these two, or whether they can be left as visitors, is what splits. MLC, 2006 Article II is where that question goes.

Article II is a definitions article, and it does not stop at what the words mean. Scope, and who draws the line when a case sits on the edge, are in the same article. So Article II reads in three strands. What the definition takes in, what it pushes out, and who decides when the answer is disputed.

The seafarer definition carries no list of jobs

(f) seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies;

The definition sorts people on two conditions only. Does the person work on that ship, and is that ship a ship the Convention applies to. Rank, department and nationality are not among the conditions.

in any capacity stands in for a list of jobs. Deck or engine, galley or hotel service, it does not distinguish. The relationship is spread across three words as well. A person employed, a person engaged, and a person who simply works.

2. Except as expressly provided otherwise, this Convention applies to all seafarers.

The default is inclusion. To take a category out, the Convention has to take it out expressly at that point. A category does not fall out because the company reads the person as something other than a seafarer.

Whether a person is a seafarer hangs on what the ship is

a ship to which this Convention applies sits at the end of the definition. The judgement about the person hangs on the judgement about the ship. So the Convention defines the ship as well.

(i) ship means a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply;

The definition is written as an exclusion. Not this is a ship, but anything that is not this is a ship. The key word is exclusively. To fall out, the vessel has to navigate only inside inland waters, sheltered waters or areas where port regulations apply. Mix in a voyage beyond them and the exclusion no longer holds.

Ships leave the Convention through two different doors

4. Except as expressly provided otherwise, this Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. This Convention does not apply to warships or naval auxiliaries.

Here too the default is inclusion. Public or private ownership makes no difference, and the qualifier ordinarily engaged in commercial activities is attached.

Ship that falls out	Where it falls out
A vessel navigating only in inland and sheltered waters	The ship definition itself, paragraph 1(i)
A ship engaged in fishing or in similar pursuits	The application provision, paragraph 4
A ship of traditional build such as dhows and junks	The application provision, paragraph 4
A warship or naval auxiliary	The application provision, paragraph 4

Fall out of the definition and the people on board never reach the seafarer definition either, because the seafarer definition bites on the ship definition. Falling out of the application provision looks similar in result but runs a different route. The vessel is a ship, and the Convention is simply not applied to it.

When the answer is disputed, the competent authority decides and the company does not

3. In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question.

The same structure is laid down once more for ships.

5. In the event of doubt as to whether this Convention applies to a ship or particular category of ships, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned.

In both provisions the body that determines the question is the competent authority. Not the company, not the master, not the classification society. Before determining it, the authority consults the shipowners’ and seafarers’ organizations. This is not the kind of thing that can be settled on board on the day.

7. Any determinations made by a Member under paragraph 3 or 5 or 6 of this Article shall be communicated to the Director-General of the International Labour Office, who shall notify the Members of the Organization.

Where a category such as those two technicians is disputed, the answer comes from the flag State’s determination and not from the company’s reading. Once a determination is made it goes to the ILO and reaches the other Members. Where there is no determination, the definition applies as written, and the definition is open wide, as above.

Gross tonnage sorts details of the Code, not who is a seafarer

Gross tonnage appears once in Article II, and not in the seafarer definition. It appears as the threshold at which the flag State may determine that certain details of the Code are not to be applied to a ship. Even then the application stops only so far as national laws or collective bargaining agreements deal with the subject matter differently.

Such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations concerned and may only be made with respect to ships of less than 200 gross tonnage not engaged in international voyages.

Two conditions run together. The ship has to be under 200 gross tonnage and it has to be not engaged in international voyages. Below the threshold the ship is still a ship and the people working on it are still seafarers. What stops is a detail of the Code, not a person’s status.

Worth confirming

The passages above come from Article II of the consolidated MLC, 2006 (including the 2022 amendments). The definitions and the exclusion list are Convention text and do not shift from flag to flag. What shifts is the determinations. Whether a category counts as seafarers, whether the Convention applies to a particular ship, and how far details of the Code may be dealt with differently below the tonnage threshold are decided by the flag State and communicated to the ILO. Whether the ship’s flag State has made such a determination, and for which category, is where the actual judgement starts.