By Emma Batchelder
The Maritime Labor Convention was written in 2006, but made a big impact when it entered into force on Aug. 20, 2013, one year after ratification by 30 countries that represent over 33 percent of the world gross tonnage of ships. As of August 2017, the convention has been ratified by 84 states representing over 89 percent of global shipping.
Establishing basic rights for seafarers, the MLC has been widely scrutinized by professionals who feel that its drafters did not consider the superyacht industry. This is to clarify a few points for yacht crew, specifically.
Q: How many vacation days are crew members entitled to in a year?
A: MLC requires that seafarers employed on ships that fly its flag are given paid annual leave under appropriate conditions. In the case of Cayman Islands flag state, crew members are to be granted 38 days of leave for every 12 months of work. They are broken into two sections; 30 vacation days and eight public holiday days. Crew shall accrue vacation days at 3.2 days a month. Each flag state’s allocation of public holiday days differs slightly.
Q: Can weekend days be counted as vacation days?
A: Under the Merchant Shipping Regulations, there is no such thing as a “standard working week”. Any day of the week can be counted as a vacation day. If the crew member and the captain have made an agreement for a day off, then it is counted as a vacation day. This is regardless of day of the week, weekend, public holiday, etc. It is advisable for this to be clarified in writing, especially since the crew member may stay on the vessel.
Q: If a crew member takes off the entire month of June for vacation, how many vacation days will this count as?
A: This would count as 30 days of leave.
Q: If the boat sits at the dock for extended periods of time and the captain gives the crew weekends off, can either weekend days off be deducted from annual vacation time?
A: No. Temporary shore leave cannot be counted as part of annual vacation time. There needs to be a distinction between “temporary shore leave” and “extended shore leave’. A captain can issue an extended shore leave notice to a crew member that will count as vacation days.
Q: Under maritime laws, are crew owed any days off in a standard work week?
A: MLC laws fall under the laws of the International Labor Organization, which state that for every six days, there will be one day off owed in lieu.
Q: If crew agree to take a set amount of “temporary shore leave”, do they need to sleep off the vessel?
A: There is no requirement under the laws that state that a crew member must sleep off the boat. If the employer is willing to let the crew member sleep onboard, that is OK.
Q: A public holiday occurs during a crew member’s vacation time. Does this not count as a day of leave since it is a holiday?
A: It will still count as a day of vacation since there are already eight days of paid leave (under Cayman Island flag state) that cover public holidays.
Q: How many vacation days would a crew member be owed if he/she quits after only eight months?
A: Again, this comes back to flag state. In the case of Cayman Islands, annual leave shall be accrued at 3.2 days per month and, where a seafarer does not serve a full year, this shall be calculated on a pro-rated basis. In this case, a crew member would be owed 26 days (rounded up from 25.6).
When the Maritime Labor Convention (MLC) was established, it was the “fourth pillar” of international maritime law – the other three are International Convention for the Safety of Life at Sea (SOLAS), International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and International Convention for the Prevention of Pollution from Ships (MARPOL). Its intention was to enforce regulations that would bring better standards to seafarers’ lives. These laws apply across the board to all mariners, but do not always take into consideration unique aspects of the large yacht industry. The result of this can be more confusion for the yachting community.
As we all know every yacht’s schedule is different. Most yacht crew get the odd day off here or there, but yachting is certainly not an industry in which holidays or weekends are anticipated to be non-working days. There is no set definition of a “standard working week” under the Merchant Shipping Law. There are clear laws under the Merchant Shipping Regulations (certification, safe manning, hours of work and watchkeeping) that state a seafarer must be provided with 77 hours rest in any seven-day period. There is no requirement to which days these hours are to be taken. In addition, MLC enforces a maximum of 14 hours of work in a 24-hour period, or a maximum of 72 hours of work in a seven-day period.
In the case of a day off given by the captain, a distinction between “temporary shore leave” and “extended shore leave” would be highly beneficial. Temporary shore leave granted to a seafarer cannot be counted as part of annual leave pursuant to the regulations, however, shore leave can, and will be, deducted from annual leave.
Vessels that sit at the dock for extended periods of time and are often granted more “temporary shore leave”. If the captain choses to give crew members two days off a week, regardless of which days it is, they cannot be counted against the crew’s “extended shore leave” time. This can get a little tricky in some cases where a yacht sits at a dock for a lengthy amount of time, and crew are regularly being granted two days off a week. Crew accumulating vacation days, while only working five days a week, may seem like a bit of a double standard, but this is compliant with MLC and Cayman Islands laws.
On another note, not all yachts are required to be compliant with MLC. From a Cayman Islands perspective, MLC does not apply to pleasure yachts. There are numerous MLC regulations under Cayman Islands Merchant Shipping law that all contain specific language clarifying this. A vessel that is privately owned and not engaged in commercial activities, that is to say the yacht is not engaged in trade, is not required to be compliant with the laws.
In addition to the subject of vacation days, captains and owners are also running into confusion regarding repatriation laws. It is not uncommon for crew members to work an entire 12-month period onboard, take their annual vacation, only to return to the vessel after a paid holiday, and resign in the 13th month. Crew members then expect another flight back to their home country (or prior determined port of return) to be paid by the boat on their behalf. This is completely legal, but is going to leave a sour taste in owners’ and captains’ mouths, and something the yachting industry needs to somehow rectify.
One way to remedy this situation is to draw up one-year contracts for crew members. This way crew members can take their annual leave and vacation flights, and if they chose to, come back to the vessel and re-sign another one year contract. This creates a much fairer playing field for both the owner and crew.
Q: If a crew member resigns from his/her job onboard, is the boat required to pay for their flight home?
A: Crew members are protected by MLC laws that state that if the seafarer has not breached the contract, they shall be repatriated by lowest cost airline to the place where they signed the employment agreement, the crew member’s country of residence, or such other place as mutually agreed with the ship owner when the employment agreement is signed.
Q: If a crew member did not take all leave owed to them from one year, can they carry it over to the following year?
A: All paid annual leave must be taken in the year in which it accrues. There is also no provision for payment to be made in lieu of untaken leave except where paid annual leave has accrued but has not been taken at the date of termination of employment.
Q: If a crew member terminated their contract in breach of the terms of the agreement, is the owner still required to cover repatriation costs?
A: If the seafarer breached the contract then the employer may treat this as misconduct and recover up to a maximum of $1,000 for repatriation costs.
Former chief stew Emma Batchelder is PR manager at Luxury Yacht Group in Fort Lauderdale. This article is for information purposes only. The information and opinion expressed in this document does not constitute legal advice and should not be regarded as a substitute for legal advice. For more information, visit luxyachts.com. Comments are welcome below.