Superyachts less than 500gt to comply with MLC
Despite an industry-wide misunderstanding that the Maritime Labour Convention, 2006 (MLC) applies to all yachts engaged in commercial activity and over 500gt, the lengthy Convention is also applicable to comercially operating superyachts under 500gt - significantly increasing the spectrum of superyachts to which the Convention is applicable.…
Since the ratification of the Maritime Labour Convention, 2006 (MLC) in August 2012, its application to all yachts over 500gt and engaged in commercial activity has been etched into the mind of the superyacht industry. After all, under Regulation 5.1.3 – Maritime Labour Certificate and Declaration of Maritime Labour Compliance (DMLC), the Convention clearly states the regulation applies to ships of “500 gross tonnage or over, engaged in international voyages; and 500 gross tonnage or over, flying the flag of a Member and operating from a port, or between ports, in another country.”
In actuality, the above regulation – heavily scrutinised by the superyacht industry and upon which the it has formed most of its discussions pertaining to the Convention – is referring only to certification and DMLC requirements, not to overall compliance. Consequently, the assumption that the MLC is only applicable to yachts over 500gt and engaged in commercial activity is incorrect.
“What is not clear to many people is that ships under 500gt must also comply with the Convention, but are not required to be certified,” explained Clyde & Co Partner, John Leonida, and Associate, Joanne Welch. “The effect being, the smaller yachts will be spared the task of obtaining the relevant certification but, as a result, will lack obvious proof of MLC compliance. Instead, the burden will be on the yacht owner to prove compliance or otherwise to Port State Control if and when challenged.”
With 2759 superyachts on the water at less than 500gt (source: SuperyachtIntelligence.com), a number of which will be engaged in commercial activity, it is paramount that the need for compliance is apparent and intelligible. SuperyachtNews.com approached the Maritime and Coastguard Agency (MCA) for clarification, and Marine Surveyor Neil Atkinson elaborated: “The application [of the MLC to yachts of less than 500gt] is the same for yachts of 500gt and over; that is, ships ordinarily engaged in commercial activities such as chartering. The MLC does apply to yachts under 500gt – unless they operate within 60 miles of a UK safe haven. They are required to be inspected once every three years, but they are not required to have a Part I and Part II DMLC, unless the owner opts for voluntary certification; if they do then they are treated exactly the same as yachts of 500gt and over.”
The requirement for certification combined with no mandatory proof via certification does raise questions over the inspection process, however. “We haven’t actually carried out a MLC inspection on a ship under 500gt so I am a little uncertain how it would actually work in practice. In theory it should be similar to inspections on ships of 500gt or over but without having the DMLC Part II as the starting point, but we will have the SEA [Seafarer Employment Agreement] and the on-board complaints procedure. As a guide, we would follow the contents of chapter three of the Flag State Guidelines, which cover all the relevant areas of the Convention. On completion of the inspection we would prepare and issue an inspection report as we do for those ships of 500gt and over. Clearly, when owners opt for voluntary certification, the process will be the same as for the larger ships."
Complexities continue to arise as the maritime industry gets to grips with the 105-page Convention, however what remains paramount is that owners, captains and managers continue to remain abreast of its complexities. As we as an industry better understand the convention, its application to a wider portion of the superyacht industry – for example, all yachts (regardless of tonnage) engaged in commercial activity, and those yachts flying the flag of a non-ratifying state but in the waters of a ratifying state – is becoming evident and near impossible to ignore.
In actuality, the above regulation – heavily scrutinised by the superyacht industry and upon which the it has formed most of its discussions pertaining to the Convention – is referring only to certification and DMLC requirements, not to overall compliance. Consequently, the assumption that the MLC is only applicable to yachts over 500gt and engaged in commercial activity is incorrect.
“What is not clear to many people is that ships under 500gt must also comply with the Convention, but are not required to be certified,” explained Clyde & Co Partner, John Leonida, and Associate, Joanne Welch. “The effect being, the smaller yachts will be spared the task of obtaining the relevant certification but, as a result, will lack obvious proof of MLC compliance. Instead, the burden will be on the yacht owner to prove compliance or otherwise to Port State Control if and when challenged.”
Regulation 5.1.3 of the Convention has been the cause of some confusion regarding the Convention's application
With 2759 superyachts on the water at less than 500gt (source: SuperyachtIntelligence.com), a number of which will be engaged in commercial activity, it is paramount that the need for compliance is apparent and intelligible. SuperyachtNews.com approached the Maritime and Coastguard Agency (MCA) for clarification, and Marine Surveyor Neil Atkinson elaborated: “The application [of the MLC to yachts of less than 500gt] is the same for yachts of 500gt and over; that is, ships ordinarily engaged in commercial activities such as chartering. The MLC does apply to yachts under 500gt – unless they operate within 60 miles of a UK safe haven. They are required to be inspected once every three years, but they are not required to have a Part I and Part II DMLC, unless the owner opts for voluntary certification; if they do then they are treated exactly the same as yachts of 500gt and over.”
There are some notable charter yachts that fall into the less than 500gt category, such as Mcmullen & Wing's 45m Big Fish, at 496gt
The requirement for certification combined with no mandatory proof via certification does raise questions over the inspection process, however. “We haven’t actually carried out a MLC inspection on a ship under 500gt so I am a little uncertain how it would actually work in practice. In theory it should be similar to inspections on ships of 500gt or over but without having the DMLC Part II as the starting point, but we will have the SEA [Seafarer Employment Agreement] and the on-board complaints procedure. As a guide, we would follow the contents of chapter three of the Flag State Guidelines, which cover all the relevant areas of the Convention. On completion of the inspection we would prepare and issue an inspection report as we do for those ships of 500gt and over. Clearly, when owners opt for voluntary certification, the process will be the same as for the larger ships."
Complexities continue to arise as the maritime industry gets to grips with the 105-page Convention, however what remains paramount is that owners, captains and managers continue to remain abreast of its complexities. As we as an industry better understand the convention, its application to a wider portion of the superyacht industry – for example, all yachts (regardless of tonnage) engaged in commercial activity, and those yachts flying the flag of a non-ratifying state but in the waters of a ratifying state – is becoming evident and near impossible to ignore.
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