mgn211docs_eu_dir_1999_95.pdf

20. 1. 2000

Official Journal of the European Communities

L 14/29

DIRECTIVE 1999/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 13 December 1999

concerning the enforcement of provisions in respect of seafarers' hours of work on board ships

calling at Community ports

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE

EUROPEAN UNION,

(5) The purpose of this Directive is to apply the provisions

of Directive 1999/63/EC which reflect the provisions of

ILO Convention No 180, to any ship calling at a

Community port, irrespective of the flag it flies in order

to identify and remedy any situation which is manifestly

hazardous for the safety or health of seafarers; however,

Directive 1999/63/EC includes requirements which are

not to be found in ILO Convention No 180 and which

should not therefore be enforced on board ships not

flying the flag of a Member State;

Having regard to the Treaty establishing the European

Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission ( 1 ),

Having regard to the opinion of the Economic and Social

Committee ( 2 ),

Acting in accordance with the procedure laid down in Article

251 of the Treaty ( 3 ),

(6) Directive 1999/63/EC applies to seafarers on board

every seagoing ship registered in the territory of a

Member State; Member States should monitor compli-

ance with all the provisions of the said Directive by

ships registered in their territory;

Whereas:

(1) Community action in the field of social policy aims, inter

alia , at improving the health and safety of workers in

their working environment;

(7) In order to protect safety and to avoid distortions of

competition, Member States should be allowed to verify

compliance with the relevant provisions of Directive

1999/63/EC by all sea-going vessels calling at their

ports, irrespective of the State in which they are regis-

tered;

(2) Community action in the field of maritime transport

aims, inter alia , at improving shipboard living and

working conditions of seafarers, safety at sea and the

prevention of pollution caused by maritime accidents;

(3) During its eighty-fourth session of 8 to 22 October

1996 the International Labour Organisation Conference

(ILO) adopted ILO Convention No 180 concerning

Seafarers' Hours of Work and the Manning of Ships,

1996 (hereinafter ‘ILO Convention No 180’ and the

Protocol to the Merchant Shipping (Minimum Standards)

Convention, 1976 (hereinafter ‘the Protocol to ILO

Convention No 147’);

(8) In particular, ships flying the flag of a State which is not

a party to ILO Convention No 180 or the Protocol to

ILO Convention No 147 should not receive more

favourable treatment than those flying the flag of a State

which is a party to either the Convention or Protocol or

to both of them;

(4) Council Directive 99/63/EC of 21 June 1999 concerning

the Agreement on the organisation of working time of

seafarers concluded by the European Community

Shipowners' Association (ECSA) and the Federation of

Transport Workers' Unions in the European Union

(FST) ( 4 ) adopted under Article 139(2) of the Treaty,

aims to put into effect the said Agreement concluded on

30 September 1998 (hereinafter the ‘Agreement’); the

content of the Agreement reflects certain provisions of

ILO Convention No 180; the Agreement applies to

seafarers on board every seagoing ship, whether publicly

or privately owned, which is registered in the territory of

any Member State and is ordinarily engaged in commer-

cial maritime operations;

(9) For the control of the effective enforcement of Directive

1999/63/EC, it is necessary that Member States carry out

inspections on board ships, notably after having received

a complaint by the master, a crew member, or any

person or organisation with a legitimate interest in the

safe operation of the ship, shipboard living and working

conditions or the prevention of pollution;

(10) For the purposes of this Directive Member States, on

their own initiative, may designate, as appropriate, Port

State Control inspectors to carry out inspections on

board vessels calling at Community ports;

( 1 ) OJ C 43, 17.2.1999, p. 16.

( 2 ) OJ C 138, 18.5.1999, p. 33.

( 3 ) Opinion of the European Parliament of 14 April 1999 (OJ C 219,

30.7.1999, p, 240), Council common position of 12 July 1999 (OJ

C 249, 1.9.1999, p, 7) and Decision of the European Parliament of

4 November 1999 (not yet published in the Official Journal).

( 4 ) OJ L 167, 2.7.1999, p. 37.

(11) Evidence that a ship does not comply with the require-

ments of Directive 1999/63/EC may be obtained after

verification of the shipboard working arrangements and

seafarers' records of hours of work or hours of rest, or

when the inspector has a reasonable belief that seafarers

are excessively fatigued;

L 14/30

Official Journal of the European Communities

20. 1. 2000

(12) In order to rectify any conditions on board a ship which

are clearly hazardous to safety or health, the competent

authority of the Member State in whose port the ship

has called may impose a prohibition on leaving the port

until the deficiencies found have been rectified or the

crew is sufficiently rested;

not consider manifestly unfounded or obtains evidence that the

ship does not conform to the standards referred to in Directive

1999/63/EC, it shall prepare a report addressed to the govern-

ment of the country in which the ship is registered and, when

an inspection carried out pursuant to Article 4 provides rele-

vant evidence, the Member State shall take the measures neces-

sary to ensure that any conditions on board which are clearly

hazardous to the safety or the health of the crew are rectified.

(13) Since Directive 1999/63/EC reflects the provisions of

ILO Convention No 180, verification of compliance with

the provisions of that Directive by ships registered in the

territory of a third State can take place only when this

Convention has entered into force,

The identity of the person lodging the report or the complaint

must not be revealed to the master or the owner of the ship

concerned.

HAVE ADOPTED THIS DIRECTIVE:

Article 4

Article 1

Inspection and more detailed inspection

Purpose and scope

1. When carrying out an inspection, in order to obtain

evidence that a ship does not conform to the requirements of

Directive 1999/63/EC, the inspector shall determine whether:

— a table with the shipboard working arrangements has been

established in the working language or languages of the

ship and in English according to the model format repro-

duced in Annex I, or in an alternative equivalent format,

and is posted on board in an easily accessible place;

— seafarers' records of hours of work or hours of rest have

been established in the working language or languages of

the ship and in English according to the model format

reproduced in Annex II, or in an alternative equivalent

format, and are kept on board and there is proof that the

records have been endorsed by the competent authority of

the State where the ship is registered.

1. The purpose of this Directive is to provide a mechanism

for the verification and enforcement of compliance by ships

calling at ports of Member States with Directive 1999/63/EC in

order to improve maritime safety, working conditions and the

health and safety of seafarers on board ships.

2. Member States shall take appropriate measures to ensure

that ships which are not registered in their territory or not

flying their flag comply with clauses 1 to 12 of the Agreement

annexed to Directive 1999/63/EC.

Article 2

Definitions

2. If a complaint has been received or the inspector from his

own observations on board believes that the seafarers may be

unduly fatigued, the inspector shall conduct a more detailed

inspection, pursuant to paragraph 1, to determine whether the

working hours or rest periods recorded conform to the stan-

dards laid down in Directive 1999/63/EC and that they have

been duly observed, taking into account other records relating

to the operation of the ship.

For the purposes of this Directive,

(a) ‘ship’ means any seagoing vessel, whether publicly or

privately owned, which is ordinarily engaged in commercial

maritime operations. Fishing vessels are not included in this

definition,

(b) ‘competent authority’ means the authorities designated by

the Member States to perform functions under this

Directive,

duly authorised by the competent authority of a Member

State to inspect the working conditions on board, and

responsible to that competent authority,

Article 5

The rectification of deficiencies

(d) ‘complaint’ means any information or report submitted by

a member of the crew, a professional body, an association,

a trade union or, generally, any person with an interest in

the safety of the ship, including an interest in safety or

health hazards to its crew.

1. If the inspection or the more detailed inspection reveals

that the ship does not conform to the requirements of

Directive 1999/63/EC, the Member State shall take the meas-

ures necessary to ensure that any conditions on board which

are clearly hazardous to the safety or health of seafarers are

rectified. Such measures may include a prohibition on leaving

the port until deficiencies have been rectified or the seafarers

have been sufficiently rested.

Article 3

Preparation of reports

2. If there is clear evidence that watchkeeping personnel for

the first watch or subsequent relieving watches are unduly

fatigued, the Member State shall ensure that the ship shall not

leave port until the deficiencies found have been rectified or the

seafarers in question have been sufficiently rested.

Without prejudice to Article 1 (2), if a Member State in whose

port a ship calls voluntarily in the normal course of its business

or for operational reasons receives a complaint which it does

20. 1. 2000

Official Journal of the European Communities

L 14/31

Article 6

Article 9

‘No more favourable’ treatment clause

When inspecting a ship registered in the territory of or flying

the flag of a State which has not signed ILO Convention No

180 or the Protocol to ILO Convention No 147, Member

States shall, once the Convention and the Protocol are in force,

ensure that the treatment given to such ships and their crew is

no more favourable than that given to a ship flying the flag of

a State which is a party to either ILO Convention No 180 or

the Protocol to ILO Convention No 147 or both of them.

Follow-up procedures

1. In the event that a ship is prohibited from leaving the

port pursuant to Article 5, the competent authority of the

Member State shall inform the master, the owner or operator,

the administration of the flag State or the State where the ship

is registered or the Consul, or in his absence the nearest

diplomatic representative of the State, of the results of the

inspections referred to in Article 4, of any decisions taken by

the inspector and of corrective actions required, if necessary.

2. When carrying out an inspection under this Directive, all

possible efforts should be made to avoid a ship being unduly

delayed. If a ship is unduly delayed, the owner or operator shall

be entitled to compensation for any loss or damage suffered. In

any instance of alleged undue delay, the burden of proof shall

lie with the owner or operator of the ship.

Article 10

Final provisions

1. Member States shall bring into force the laws, regulations

and administrative provisions necessary to comply with this

Directive not later than 30 June 2002.

2. When Member States adopt the measures referred to in

paragraph 1, they shall contain a reference to this Directive or

shall be accompanied by such reference on the occasion of

their official publication. The methods of making such refer-

ence shall be laid down by Member States.

3. Member States shall immediately notify to the Commis-

sion all provisions of domestic law which they adopt in the

field governed by this Directive. The Commission shall inform

the other Member States thereof.

Article 7

Rightof appeal

1. The owner or the operator of the ship or his repres-

entative in the Member State shall have a right of appeal

against a detention decision taken by the competent authority.

An appeal shall not cause the detention to be suspended.

2. Member States shall establish and maintain appropriate

procedures for this purpose in accordance with their national

legislation.

Article 11

Ships from non-Member States

This Directive shall apply to ships not registered in the territory

of, or not flying the flag of, a Member State only on the date of

entry into force of ILO Convention No 180 and the date of

entry into force of the Protocol to ILO Convention No 147.

3. The competent authority shall properly inform the

master of a ship referred to in paragraph 1 of the right of

appeal.

Article 8

Administrative cooperation

Article 12

Entry into force

This Directive shall enter into force on the day of its publica-

tion in the Official Journal of the European Communities .

1. Member States shall take the necessary steps to provide,

in conditions compatible with those laid down in Article 14 of

Directive 95/21/EC of 19 June 1995 concerning the enforce-

ment, in respect of shipping using Community ports and

sailing in the waters under the jurisdiction of the Member

States, of international standards for ship safety, pollution

prevention and shipboard living and working conditions (port

State control) ( 1 ), for cooperation between their relevant

authorities and the relevant competent authorities of other

Member States to ensure the effective application of this

Directive and shall notify the Commission of the provision

made.

Article 13

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 13 December 1999.

2. Information on the measures taken pursuant to Articles 4

and 5 shall be published in accordance with procedures such as

those set out in the first paragraph of Article 15 of Directive

95/21/EC.

The European Parliament

The President

N. FONTAINE

For the Council

The President

S. HASSI

( 1 ) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive

98/42/EC (OJ L 184, 27.6.1998, p. 40).

ANNEX I

MODEL FORMAT FOR TABLE OF SHIPBOARD WORKING ARRANGEMENTS ( 1 )

Name of ship:

Flag of ship:

IMO number (if any):

Latest update of table:

( ) of ( ) pages.

The maximum hours of work or minimum hours of rest are applicable in accordance with: (national law or regulation) issued in conformity with ILO's Seafarer's

Hours of Work and the Manning of Ships Convention 1996 (No 180) and with any applicable collective agreement registered or authorised in accordance with that Convention and with the International

Convention on standards of training, certification and watchkeeping for seafarers, 1978, as amended, (STCW Convention) ( 2 ).

Maximum hours of work or minimum hours of rest ( 3 ):

Other requirements:

Position/rank ( 4 )

Scheduled daily work hours at sea

Scheduled daily work hours in port

Comments

Total daily work/rest hours ( 3 )

Watchkeeping

(from-to)

Non-watchkeeping

duties

(from-to) ( 5 )

Watchkeeping

(from-to)

Non-watchkeeping

duties

(from-to)

At sea

In ports

Signature of the master:

( 1 ) The termins used in this model table are to appear in the working language or languages of the ship and in English.

( 2 ) See overleaf for selected extracts from ILO Convention No 180 and the STCW Convention.

( 3 ) Delete as applicable.

( 4 ) For those positions/ranks that are also listed in the ship's safe manning document, the terminology used should be the same as in that document.

( 5 ) For watchkeeping personnel, the comment section may be used to indicate the anticipated number of hours to be devoted to unscheduled work and any such hours should be included be included in the appropriate total daily work hours

column.

SELECTED TEXTS FROM ILO CONVENTION No 180 AND THE STCW CONVENTIONS

ILO Convention No 180

Article 5

1. The limits on hours of work or rest shall be as follows: (a) maximum hours of work shall not exceed: (i) 14 hours in any 24-hour period; and (ii) 72 hours in any seven-day period, or (b) minimum hours of

rest shall not be less than: (i) 10 hours in any 24-hour period, and (ii) 77 hours in any seven-day period.

2. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods of rest shall not exceed 14 hours.

6. Nothing in paragraphs 1 and 2 shall prevent the Member from having national laws or regulations or a procedure for the competent authority to authorise or register collective agreements permitting

exceptions to the limits set out. Such exceptions shall, as far as possible, follow the standards set out but may take account of more frequent or longer leave periods or the granting of compensatory leave for

watchkeeping seafarers or seafarers working on board ships on short voyages.

Article 7

1. Nothing in this Convention shall be deemed to impair the right of the master of a ship to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or

cargo, or for the purpose of giving assistance to other ships or persons in distress at sea.

3. As soon as practicable after the normal situation has been restored, the master shall ensure that any seafarers who have performed work in a scheduled rest period are provided with an adequate period of

rest.

STCW Convention

Section A-VIII/1 of the STCW Code (Mandatory)

1. All persons who are assigned duty as officer in charge of a watch or seafarer on watch shall be provided with a minimum of 10 hours' rest in any 24-hour period.

2. The hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length.

3. The requirements for rest periods laid down in paragraphs 1 and 2 need not be maintained in the case of an emergency or drill or in other overriding operational conditions.

4. Notwithstanding the provisions of paragraphs 1 and 2, the minimum period of 10 hours may be reduced to not less than 6 consecutive hours provided that any such reduction shall not extend beyond two

days and not less than 70 hours of rest are provided each seven-day period.

5. Administrations shall require that watch schedules be posted where they are easily accessible.

Section B-VIII/1 of the STCW Code (Guidance)

3. In applying Regulation VIII/1, the following should be taken into account:

1. provisions made to prevent fatigue should ensure that excessive or unreasonable overall working hours are not undertaken. In particular, the minimum rest periods specified in Section A-VIII/1 should not

be interpreted as implying that all other hours may be devoted to watchkeeping or other duties;

2. that the frequency and length of leave periods, and the granting of compensatory leave, are material factors in preventing fatigue from building up over a period of time;

3. the provision may be varied for ships on short sea voyages, provided special safety arrangements are put in place.

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