The Merchant Shipping (Maritime Labour Convention) (Compulsory Financial Security) (Amendment) Regulations 2018
| Year | 2018 |
2018 No. 667
Merchant Shipping
The Merchant Shipping (Maritime Labour Convention) (Compulsory Financial Security) (Amendment) Regulations 2018
Made 31th May 2018
Laid before Parliament 7th June 2018
Coming into force 12th July 2018
The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to measures relating to the safety of ships and the health and safety of persons on them2and in relation to measures relating to maritime transport3.
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 85(1) and (7) and 86(1) of the Merchant Shipping Act 19954and by section 2(2) of the European Communities Act 1972.
In accordance with section 86(4) of the Merchant Shipping Act 1995 the Secretary of State has consulted the persons referred to in that section.
PART 1
Introduction
Citation and commencement
1. These Regulations may be cited as the Merchant Shipping (Maritime Labour Convention) (Compulsory Financial Security) (Amendment) Regulations 2018 and come into force on 12th July 2018.
PART 2
Amendments relating to compulsory financial security
Amendments relating to compulsory financial security
2.—(1) The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 20145are amended as follows.
(2) In regulation 2(1) (interpretation), after the definition of “Merchant Shipping Notice” insert—
““personal representative”, in relation to a seafarer who has died, means—
(a) a person responsible for administering the seafarer’s estate under the law of England and Wales, Scotland or Northern Ireland; or
(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the seafarer’s estate;”.
(3) In regulation 3 (application)—
(a)
(a) in paragraph (2)(a), for “10” substitute “10B”;
(b)
(b) in paragraph (4)(a), for “regulations 26 and 49” substitute “regulation 26”;
(c)
(c) in paragraph (4)(b)—
(i) at the end of paragraph (vi) omit “and”; and
(ii) after paragraph (vii) insert—
“(viii)
“(viii) regulation 53B(1)(b); and
(ix)
(ix) regulation 53M(1)(b).”.
(4) In regulation 27 (Secretary of State functions in the event of shipowner default)—
(a)
(a) for paragraph (1) substitute—
“1 The Secretary of State must make any provision which the shipowner of a United Kingdom ship is required to make under regulation 19 or 22 (repatriation and duty pending repatriation) (or secure that it is made) if—
(a) the shipowner fails to make the required provision; and
(b) the seafarer in relation to whom the shipowner has failed to make such provision is not entitled to receive financial assistance under an abandonment security.
1A The Secretary of State may make any provision which the shipowner of a United Kingdom ship is required to make under regulation 19 or 22 (or secure that it is made) if—
(a) the shipowner fails to make the required provision; and
(b) the seafarer in relation to whom the shipowner has failed to make such provision is entitled to receive financial assistance under an abandonment security.
1B Where the Secretary of State makes provision under paragraph (1) or (1A), the Secretary of State may recover costs incurred from the shipowner as a civil debt.”;
(b)
(b) in paragraph (3), in the words before sub-paragraph (a), for “(1)” substitute (1B)”;
(c)
(c) in paragraph (3)(b), for “A2.5” substitute “A2.5.1”;
(d)
(d) in paragraph (5)(a) and (b), for “(1)” substitute (1B)”.
(5) In regulation 28(1) and (3)(a) and (b) (Part 6 requirements for non-United Kingdom ships with MLC documentation), for “A2.5” in each place where it occurs substitute “A2.5.1”.
(6) Omit regulation 49 (financial security requirement applicable to all ships).
(7) After regulation 53 insert—
“PART 10A
Security against shipowner’s liability for death or long term disability of seafarers
Interpretation of Part 10A
53A. In this Part—
“shipowner’s security” has the meaning given in regulation 53C;
“shipowner’s security document” has the meaning given in regulation 53G(6).
Shipowner’s security requirement applicable to all ships
53B.—(1) A ship must not be operated unless—
(a)
(a) in the case of a ship in a category described in regulation 3(1)(a) or (b), a shipowner’s security is in force in relation to the ship; or
(b)
(b) in the case of a ship in the category described in regulation 3(3), financial security to assure compensation in the event of death or long term disability of seafarers arising from occupational illness, injury or hazard is provided in relation to the ship in accordance with paragraph 1 of Standard A4.2.1 of the MLC.
(2) A breach of paragraph (1) is an offence by the shipowner.
Shipowner’s security
53C.—(1) “Shipowner’s security” means a contract of insurance or other form of security relating to a ship that satisfies the first and second conditions.
(2) The first condition is that the shipowner’s security must provide financial assurance of an amount which the shipowner reasonably considers adequate to ensure that the shipowner will be able to meet any liabilities that the shipowner may have, including liabilities under seafarer employment agreements, to provide compensation in the event of death or long term disability to seafarers arising from occupational injury, illness or hazard.
(3) The second condition is that the shipowner’s security must provide that a claim for compensation may be submitted directly to the shipowner’s security provider by—
(a)
(a) any relevant seafarer who sustains a long term disability arising from a relevant occupational injury, illness or hazard; and
(b)
(b) the personal representatives of any deceased relevant seafarer, the death of whom arose from a relevant occupational injury, illness or hazard.
(4) In this regulation—
“relevant occupational injury, illness or hazard” means an occupational injury, illness or hazard—
(a) occurring during the period of validity of the shipowner’s security; and
(b) in relation to which the shipowner is, or may be, liable to provide compensation to the seafarer or, as the case may be, the seafarer’s estate;
“relevant seafarer” means a seafarer whose normal place of work during the period of validity of the shipowner’s security is, or was, on board the ship.
Payment of contractual compensation
53D.—(1) This regulation applies where a claim for contractual compensation is submitted to a shipowner’s security provider.
(2) A shipowner’s security provider must pay the contractual compensation to the seafarer, or the seafarer’s personal representative, within 7 days beginning with the date on which it is established that the shipowner is liable for the contractual compensation either—
(a)
(a) by agreement between—
(i) the shipowner’s security provider; and
(ii) the seafarer or the seafarer’s personal representative; or
(b)
(b) by order of a court or tribunal which is not subject to appeal.
(3) A shipowner’s security provider who fails to comply with paragraph (2) must pay to the seafarer, or the seafarer’s personal representative, interest on the unpaid amount at the rate of 20% per year beginning with the date that the shipowner’s security provider became satisfied of the shipowner’s liability.
(4) In this regulation, “claim for contractual compensation” means a claim for compensation in the event of death or long term disability of a seafarer arising from occupational injury, illness or hazard where the compensation payable in respect of the claim is set out in the seafarer’s seafarer employment agreement, and “contractual compensation” is to be construed accordingly.
Interim payments
53E.—(1) A seafarer is entitled to a payment (an “interim payment”) from a shipowner’s security provider if the following conditions are satisfied—
(a)
(a) the shipowner is liable to pay compensation to the seafarer due to the seafarer having sustained a long term disability arising from an occupational injury, illness or hazard;
(b)
(b) the occupational injury, illness or hazard occurred during the period of validity of the shipowner’s security;
(c)
(c) the shipowner’s security provides financial assurance in respect of the compensation mentioned in sub-paragraph (a);
(d)
(d) the full amount of compensation payable has not yet been determined; and
(e)
(e) the seafarer is suffering hardship.
(2) A seafarer entitled under paragraph (1) may make a request for an interim payment to the shipowner’s security provider.
(3) A request under paragraph (2) must be supported by evidence that the seafarer satisfies the conditions in paragraph (1).
(4) A shipowner’s security provider must within 14 days of receipt of the request from the seafarer determine whether the conditions in paragraph (1) are satisfied.
(5) If, in contravention of paragraph (4), a shipowner’s security provider does not determine whether the conditions in paragraph (1) are satisfied, it must make an interim payment within 21 days of the receipt of the request from the seafarer.
(6) Where a shipowner’s security provider determines that the conditions in paragraph (1) are satisfied, it must make the interim payment within 21 days of the receipt of the request from the seafarer.
(7) The minimum amount of an interim payment is—
(a)
(a) where an amount in respect of any part of the claim has been determined and payment of that amount would be sufficient to alleviate the seafarer’s hardship, the amount so determined; or
(b)
(b) where no amount in respect of any part of the claim has been determined, or the amount which has been determined is not sufficient to alleviate the seafarer’s hardship, the lower of—
(i) such amount as would alleviate the seafarer’s hardship; and
(ii) 75% of the likely total amount of compensation...
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