Offshore Platforms’ workers: An excluded
group within an overlooked sector?
Transport Law de lege ferenda – KU Leuven
Index
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Introduction
International regulation for offshore platforms
Definition of seafarer under international law
Definition of ship under international law
MLC seafarer’s definition
MLC ship’s definition
ITF’s approach
Different approaches adopted my members States
Conclusion/Critique
Are offshore workers seafarers?
International regulation for offshore platforms
Existing offshore regulation
• ILO Practice Code for health and safety of offshore workers
(1982)
• The lacuna of international law is covered by national
legislation.
• Advanced national regulatory regimes: United Kingdom,
Norway, United States, Canada, Australia, European Union
How does international law
define seafarers?
‘the term seaman includes every person employed or
engaged in any capacity on board any vessel and entered on
the ship's articles. It excludes masters, pilots, cadets and
pupils on training ships and duly indentured apprentices,
naval ratings, and other persons in the permanent service of a
Government;’ – ILO C22
‘for the purpose of this Convention the term seafarer means
any person who is employed in any capacity on board a
seagoing ship to which this Convention applies.’ – ILO C166
‘The term “seafarer’ means any person defined as such by
national laws or regulations or collective agreements who is
employed or engaged in any capacity on board of a seagoing
ship to which the convention applies’ – IMO/ILO guidelines for the
development of tables of seafarers' shipboard working arrangements and
formats of records of seafarers' hours of work or hours of rest
What is a ship in international law
• There is no universal definition of ship in international law.
The term is used with different meanings in different contexts
depending on the aims and purpose of each convention.
• Criteria often used to define ship:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
Operation in the marine environment - MARPOL art.2(4)
Seagoing ability – Bunker Convention 2001 art. 1(1)
Navigability – 1989 Salvage Convention art. 1(b)
Mechanical self-propulsion – SOLAS Convention Annex, reg I/3(a)(iii)
Used for the carriage of goods by sea – Hague Rules art. 1(d)
Used in international seaborne trade–Ship Registration Convention art. 2
Not being permanently moored – IMSO Convention
Not being permanently attached to the sea-bed – 1988 SUA Convention
Are offshore platforms ‘ships’ under international law
• Fixed installations – Generally NOT, with some exceptions
(MARPOL, Anti-fouling Systems Convention)
• Mobile installations (Jack-up rigs, semi-submersibles, spar
platforms, MODU’s) – YES in most cases, but there are also
other approaches (the ‘dual status’ approach, the residual
approach).
MLC seafarer’s definition
“seafarer means any person who is employed or
engaged or works in any capacity on board of a
ship to which this Convention applies.” – Article II,
para 1(f)
In the event of doubt…
- The national competent authority must make a
determination on the question after consultation with the
shipowners’ and seafarers’ organisations.
- Resolution VII (94th International Labour Conference MLC,
2006 Resolutions) concerning information on occupational
groups
Criteria
(i) The duration of the stay on board of person
concerned
(ii) The frequency of periods of work spent on board;
(iii) The location of the person’s principal place of work
(…)
Resolution VII concerning information on occupational
groups
“The Convention provides seafarers with significant
rights and the benefits covering their working and
living conditions that might not always be available
to them in their home countries. Therefore, in
resolving doubts about whether particular persons
are seafarers, account should also be taken of the
extent to which their national legal and social
system provides protection for their labour
standards comparable to that provided for under
the Convention”
MLC’s definition of ship
“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” – art. II,
para 1(1)
“ordinarily engaged in commercial activities” –
art. II, para 4
In the event of doubt..
In the event of doubt, the national competent
authority decides after consultation with the
other stakeholders.
1. National law: practice, court decisions,
circumstances
2. If it is a ship under national law, then it will
be ascertained if it is a ship for the purposes
of the MLC (based on its location)
Problematic because…
In most jurisdictions it is still unclear what is the
definition of a ship, especially with regard to its
relation with offshore craft.
This might create legal uncertainty for many
years to follow, until a solid national case law is
developed.
The ITF’s approach
Basic approach: All offshore workers are
seafarers
What is the position taken by states so far
• For example, the position of UK has been the
following: It does not see fit the MLC regime
to interfere with its national offshore
regulatory framework. When a MODU or
other offshore installation is fixed, then the
HSE regime applies, whereas the MLC status
applies only to MODUS when they are in
transit.
Different approaches adopted my members States
• Australia: On a “case by case basis”
• Bahamas: Excludes all “offshore units” from the
definition of ship, hence it excludes offshore workers
• Cyprus: Excludes “specialist off-shore technicians”
• Germany: Considers offshore workers as seafarers with
the exception of § 3 para 3 number 7 of the German
Maritime Labour Act
• Marshall Islands: It includes offshore workers
• Panama: MLC does not apply to MODU’s and other
offshore units
• …
CONCLUSION
States having ratified MLC with robust regulation
already in place VS states with inadequate regulations
Robust
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UK;
Norway;
Germany;
Australia;
Canada;
Netherlands;
Denmark
Inadequate
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Benin;
Gabon;
Ghana;
Liberia;
Togo;
Nigeria;
South Africa;
Morocco;
Philippines;
Singapore;
Vietnam;
Malaysia
Thank you!