INTERNATIONAL MARITIME ORGANIZATION
E
IMO
MARITIME SAFETY COMMITTEE
83rd session
Agenda item 15
MSC 83/15/4
31 July 2007
Original: ENGLISH
FLAG STATE IMPLEMENTATION
Draft Code of international standards and recommended practices for a safety investigation into a
marine casualty or marine incident
Submitted by ILO
SUMMARY
Executive summary:
This submission comments on the provisions of the draft Code of the
international standards and recommended practices for a safety
investigation into a marine casualty or marine incident and on the
Guidelines on fair treatment of seafarers in the event of a maritime
accident
Action to be taken:
Paragraph 7
Related documents:
MSC 83/15; FSI 15/18, FSI 15/18/Add.1 (annex 2); Circular letter
No. 2711, resolution A.987(24)
1
The International Labour Office wishes to remind the Maritime Safety Committee of
IMO that both Organizations have jointly developed and adopted Guidelines on fair treatment of
seafarers in the event of a maritime accident (resolution A.987(24)). For its part, the
ILO Governing Body, at its 296th session, in June 2006, approved the resolution and the draft
Guidelines, and authorized their dissemination by the ILO as of 1 July 2006. The Guidelines
were promulgated by both Organizations on July 1 2006 (Circular letter No.2711).
2
At its ninety-second session, the Legal Committee, (16-20 October 2006) established an
ad hoc working group, to review these Guidelines and to consider concerns expressed by some
delegations about their interpretation and application. The joint ILO/IMO Ad Hoc Expert
Working Group on Fair Treatment of Seafarers in the Event of a Maritime Accident met from
16 to 18 October 2006, and reported to the Legal Committee. LEG 92 noted that the
Ad Hoc Working Group had been divided in its conclusions. As a result, in the absence of
sufficient time to examine the issues and the terms of reference for the Joint Working Group in
detail, the Legal Committee decided to retain this matter on its agenda for its 93rd session
(22-26 October 2007). The ILO’s Governing Body was advised of this discussion and the
proposed process and, at its 298th session (March 2007), approved a proposal for Terms of
Reference for the Joint Working Group.
3
The Sub-Committee on Flag State Implementation held its fifteenth session
from 4 to 8 June 2007 in London. It agreed to the draft Code of the international standards and
recommended practices for a safety investigation into a marine casualty or marine incident,
For reasons of economy, this document is printed in a limited number. Delegates are
kindly asked to bring their copies to meetings and not to request additional copies.
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MSC 83/15/4
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(FSI 15/18/Add.1, annex 2)
(MSC 83/15, paragraph 8).
which
is
proposed
for
approval
by
the
Committee
4
The ILO considers that, while the scope of the two instruments is different, both
are generally concerned with achieving greater certainty with respect to national practices in
the event of maritime accidents or incidents. It is noted that both the Guidelines
(resolution A.987(24); Circular letter No.2711, paragraph 9.8) and the draft Code
(FSI 15/18/Add.1, annex 2, paragraph 6) expressly refer to each other. Paragraph 6 of the draft
Code, entitled “Treatment of Seafarers”, refers to the ILO’s Maritime Labour Convention, 2006,
and “the need for special protection for seafarers during an investigation” in connection with the
reference to the Guidelines and resolution A.987(24). It is noted that the draft Code,
in paragraph 12.1, reflects the same concern in requiring that the “Seafarer’s human rights must,
at all times be upheld”.
5
The Guidelines on fair treatment of seafarers in the event of a maritime accident
(resolution A.987(24)) can be understood as providing more specific information with respect to
the principles that apply to the treatment of seafarers during an investigation carried out in
accordance with the Code of the international standards and recommended practices for a safety
investigation into a marine casualty or marine incident. In order to help achieve greater certainty
with respect to national practice it is important, therefore, that the text of the draft Code be
consistent with the principles set out in the recently adopted Guidelines, particularly in
connection with the treatment of seafarers and their rights during investigations. In this respect,
the wording proposed in the draft Code (FSI/15/18/Add.1, annex 2) in chapter 12 (Obtaining
Evidence from Seafarers), paragraph 12.2, could generate uncertainty and may even be
understood as providing an interpretation (and possibly a limitation) on the principles set out in
paragraphs 9, 10 and 11 of the Guidelines (resolution A.987(24)). Paragraph 12.2 of the draft
Code, as currently worded, could be understood as suggesting that the provision of information
regarding self-incrimination is an alternative to being allowed access to legal advice. However
under the Guidelines, in paragraph 9.7, these are not presented as alternatives. paragraph 9.7
provides that:
“9.
The port or coastal State should: …
.7
ensure that seafarers are, where necessary, provided interpretation
services, and are advised of their right to independent legal advice, are
provided access to independent legal advice, are advised of their right not
to incriminate themselves and their right to remain silent, and, in the case
of seafarers who have been taken into custody, ensure that independent
legal advice is provided;”
6
The ILO is concerned that there be consistency between the two instruments with respect
to the treatment of seafarers, particularly since the proposed wording in the draft Code might
cause uncertainty in the interpretation of the principles in the Guidelines on fair treatment of
seafarers in the event of a maritime accident (resolution A.987(24)), that were adopted by both
Organizations. The ILO is also concerned that the wording in paragraph 12.2 of the draft Code,
suggesting a discretion on the part of the investigating State with respect to seafarers’ access to
legal advice, might inadvertently impact on the review process for the Guidelines referred to
earlier in this document (see paragraph 2 above).
Action requested of the Committee
7
The Committee is invited to note the information provided and decide as appropriate.
___________
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