Clyde Co Guide to Superyacht Law - Sixth Edition

CREWING MATTERS

Who will be covered by the MLC?

has approved the MLC. Even purported flag exemptions from MLC may not protect an owner from crew action or port state control.

• The MLC applies to all superyachts ordinarily engaged in commercial activities, but only superyachts over 500 GRT can get certified. This makes it difficult for sub- 500 GRT superyachts to prove complete compliance. It covers all crew who are employed or engaged or work in any capacity on board. It is important to note that on employment matters, the MLC will apply to existing superyachts and that owners will need to ensure compliance. • The Marshall Islands and Cayman Islands offer the Yacht Engaged In Trade (YET) dual-certification regime (which allows yachts on these flags to switch from private to commercial registration), one of whose effects is to exempt yachts from the need to comply with the MLC whilst being used privately (although they must comply when being used commercially). In our opinion, best practice however is to comply fully with the MLC at all times, even while operating privately.

The crew is part of a global workforce increasingly deployed and managed through a network that links owners, managers and labour-supply agencies. It is important to ensure compliance, as the crew is central to the successful operation of the superyacht.

What paperwork is required?

• Following an inspection, a certificate will be issued by the flag state certifying that the working and living conditions of crew satisfy the mandatory requirements. • A declaration, as approved by the flag state, which states the national requirements for the working and living conditions for crew and sets out the measures adopted to ensure compliance.

What protection is there for the crew?

2021) firmly placed jurisdiction in England when the Captain received instructions and responded to the ultimate beneficial owner of the superyacht based in the UK which cut through the formal employment and management structure set up to employ the crew.

• The employment contract will set out the crew members’ contractual rights. Further mandatory employment rights, for example protection against dismissal, may also be afforded to them. • There is no model contract, however, certain flags require contracts to be approved by their relevant authorities. For example, UK flagged superyachts require contracts to be approved by the Maritime and Coastguard Agency.

What is the Maritime Labour Convention (MLC)?

Is the MLC really important?

The MLC provides a globally applicable standard for:

• Yes, penalties and corrective measures for breaches or obstructions will be imposed.

• Minimum requirements to work on a ship.

• The superyacht could be detained in port until breaches are rectified.

What jurisdiction will govern a dispute?

• Conditions of employment.

• The express election of jurisdiction and choice of law in the contract is one factor. However, either party may be able to challenge this on a number of grounds, such as where the crew member carried out his or her duties, and where the owner is based, or the place from which the instructions to crew come from. A recent case (Crew Employment Services Camelot .v. Mr.W.Gould

• Non-compliance of some parts of the MLC can lead to criminal sanctions on the captain and owner (for example breaches of hours of work and rest obligations).

Can the owner avoid liability by registering a superyacht with a flag state that has not approved the MLC?

• Accommodation, recreational facilities, food and catering.

• Health protection, medical care, welfare and social security protection.

• No, all superyachts will be subject to inspection in the ports of any country that

• Compliance and enforcement.

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