The Merchant Shipping (Work in Fishing Convention) Regulations 2018

PART 1 General Matters

Citation and commencement

1.—(1) These Regulations may be cited as the Merchant Shipping (Work in Fishing Convention) Regulations 2018.

(2) These Regulations, other than regulation 26, come into force on 31st December 2018; regulation 26 comes into force on 30th November 2019.

Interpretation

2.  In these Regulations—

“the Act” means the Merchant Shipping Act 1995;

“Convention” or “Work in Fishing Convention” means the convention adopted at Geneva on 14th June 2007 by the International Labour Organisation(1);

“fisherman” means a person, including the skipper, employed, engaged or working in any capacity on board any fishing vessel, but does not include a person solely engaged as a pilot for the vessel;

“fisherman’s work agreement” means a written agreement between a fisherman and another person in respect of the fisherman’s work on board a fishing vessel;

“fishing vessel owner” means the owner of a fishing vessel or any other person such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the vessel from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on fishing vessel owners in accordance with the Convention, regardless of whether any other organisation or person fulfils certain of the duties or responsibilities on behalf of the fishing vessel owner;

“Merchant Shipping Notice” means a notice described as such and issued by the Secretary of State, and any reference to a particular Merchant Shipping Notice includes a reference to a Merchant Shipping Notice amending or replacing that Notice which is considered by the Secretary of State to be relevant from time to time;

“skipper” means the person having command of a fishing vessel;

“United Kingdom fishing vessel” means a fishing vessel which is—

(a)

a United Kingdom ship within the meaning of section 85(2) of the Act; or

(b)

a hovercraft registered under the Hovercraft Act 1968(2).

Application

3.  These Regulations apply to—

(a) a United Kingdom fishing vessel wherever it may be; and

(b) a fishing vessel which is not a United Kingdom fishing vessel while that ship is in United Kingdom waters.

Obligation to comply with orders

4.—(1) A fisherman must comply with the lawful orders of the skipper regarding health and safety.

(2) A fisherman who fails to comply with paragraph (1) commits an offence.

Competent authority

5.  The Secretary of State is the competent authority for the purposes of the Convention.

PART 2 Minimum age

Minimum age for fishermen

6.—(1) Subject to paragraphs (2) and (3), a person under 16 years of age must not be employed or engaged to work on board a fishing vessel.

(2) Paragraph (1) does not apply where—

(a) the person is 15 years of age or older;

(b) the employment or engagement is limited to light work during school holidays;

(c) the purpose of the employment or engagement is to facilitate work experience and shadowing; and

(d) the person is able to demonstrate that they have completed a course of training regarding basic survival at sea which satisfied the requirements specified in Merchant Shipping Notice 1882 (F).

(3) A person under 18 years of age must not be employed or engaged to work on board a fishing vessel where the nature of the activities, or the circumstances in which they are carried out, are likely to jeopardize that person’s health, safety or morals.

(4) A breach of paragraph (1) or (3) is an offence by the fishing vessel owner, the skipper and the employer of the person.

Young persons on night duty

7.—(1) Subject to paragraph (2) a person under the age of 18 years must not be employed or engaged to work on a fishing vessel at night.

(2) Paragraph (1) does not apply where —

(a) the effective training of the person, in accordance with established programmes and schedules, would be impaired by its application; or

(b) the specific nature of the duty or a recognized training programme requires that the fisherman performs duties at night and the training and the nature of the duties conform to the requirements set out in Merchant Shipping Notice 1882 (F) as not being of detrimental impact to the person’s health or well-being.

(3) In this regulation “night” means a period—

(a) the duration of which is at least 9 consecutive hours; and

(b) which starts no later than midnight and ends no earlier than 5 a.m. (local time).

(4) A breach of paragraph (1) is an offence by the fishing vessel owner, the skipper and the employer of the person under the age of 18.

PART 3 Fishermen’s work agreements

Duty to enter into a fisherman’s work agreement

8.—(1) Subject to paragraph (2), a fisherman must have a fisherman’s work agreement which complies with paragraphs (1) and (2) of regulation 9.

(2) Paragraph (1) does not apply to a fishing vessel owner who is single-handedly operating a vessel.

(3) A breach of paragraph (1) is an offence by the fishing vessel owner.

Content of fisherman’s work agreement

9.—(1) Subject to paragraph (2), a fisherman’s work agreement must—

(a) be comprehensible to the fisherman and consistent with the provisions of the Convention; and

(b) include provision about the matters in the Schedule.

(2) Such provision may be achieved by way of reference to another document which includes provision about those matters.

(3) Prior to entering into a fisherman’s work agreement, the fishing vessel owner must take reasonable steps to satisfy itself with regard to the following requirements—

(a) the fisherman must have had sufficient opportunity to review and take advice on the terms of and conditions of the agreement;

(b) the fisherman must have received an explanation of the rights and responsibilities of the fisherman under the agreement; and

(c) the fisherman must be entering into the agreement freely.

(4) Where a fishing vessel owner fails to take such reasonable steps the fishing vessel owner commits an offence.

Documents

10.—(1) As soon as is practicable after entering into a fisherman’s work agreement, the fishing vessel owner must provide to the fisherman an original of the agreement signed by each party and a copy of any document referred to in that agreement.

(2) A breach of paragraph (1) is an offence by the fishing vessel owner.

(3) The fishing vessel owner must—

(a) ensure that—

(i) a copy of the fisherman’s work agreement;

(ii) a copy of any document referred to in that agreement; and

(iii) any translation of such document required by regulation 11,

for each fisherman on the fishing vessel is held on board; and

(b) allow each fisherman to see the copy of the fisherman’s work agreement to which the fisherman is a party (and any document referred to in paragraph (a)) on request.

(4) A breach of paragraph (3) is an offence by the fishing vessel owner.

Foreign language fisherman’s work agreement

11.—(1) This regulation applies where a fisherman has a fisherman’s work agreement which is not in the English language.

(2) The fishing vessel owner must ensure that an English translation of the provisions of the fisherman’s work agreement (including any provisions that are contained in another document) is made and made available to the fisherman.

Payments under a fisherman’s work agreement

12.—(1) Subject to paragraph (2), where a fisherman’s work agreement provides that—

(a) the fisherman is entitled to receive wages, the wages must be paid monthly, or at other regular intervals as are set out in the fisherman’s work agreement;

(b) the fisherman is entitled to receive any other remuneration, such payment of the remuneration must be made within a reasonable time or as otherwise set out in the fisherman’s work agreement.

(2) Paragraph (1) does not apply to the extent that the failure to make such payment at the required time was due to—

(a) a mistake;

(b) a reasonable dispute as to liability;

(c) the act or default of the fisherman; or

(d) any other cause not being the wrongful act or default of the person liable to make the payment or of that person’s servants or agents.

Account of payments

13.—(1) The fishing vessel owner must ensure that an account of the fisherman’s wages or other remuneration under a fisherman’s work agreement is prepared and delivered to the fisherman—

(a) periodically during the term of the fisherman’s work agreement, at intervals not exceeding one month; and

(b) within one month of the date on which the agreement terminated.

(2) Where the fisherman is not an employee, such account must include the following information—

(a) payments due;

(b) payments made (including any not falling within sub-paragraph (a)); and

(c) any rates of exchange and any commissions paid which are relevant to those payments.

(3) A breach of paragraph (1) is an offence by the fishing vessel owner.

PART 4 Repatriation

Duty to repatriate fishermen

14.—(1) Subject to regulation 16, a fishing vessel owner must make such provision in accordance with this Part as is necessary for the repatriation of a fisherman as soon as is reasonably practicable in any of the following cases—

(a) where the fisherman’s work agreement expires;

(b) where the fisherman’s work agreement has been terminated by the fishing vessel owner for justifiable reasons;

(c) where the fisherman’s work agreement has been terminated by the fisherman for justifiable reasons;

(d) where the fisherman is no longer able to carry out the fisherman’s duties under the fisherman’s work agreement or cannot be expected to carry them out in the following circumstances—

(i) the fisherman has an illness, injury or medical condition which requires their repatriation when found medically fit to travel;

(ii) shipwreck;

(iii) the fishing vessel owner is not able to fulfil its legal or contractual obligations to the fisherman following insolvency, the sale of the fishing vessel or a change in the fishing vessel’s registration; or

(iv) the fishing vessel is bound for a war zone to which the fisherman does not consent to go;

(e) where the fisherman has completed the maximum period of service on board following which the fisherman is entitled to repatriation in accordance with the fisherman’s work agreement, and, in any event, 12 months after the fisherman joined the fishing vessel; and

(f) where the fisherman’s work agreement is terminated pursuant to an order of a court or tribunal.

(2) A breach of paragraph (1) is an offence by the fishing vessel owner.

Place for return

15.—(1) Where there is a duty on a fishing vessel owner to provide for the repatriation of a fisherman under regulation 14, the fisherman is entitled to repatriation to the destination provided for in the fisherman’s work agreement, or such other place as may subsequently be agreed between the fisherman and the fishing vessel owner.

(2) If the fisherman’s work agreement does not identify a destination, and there has been no agreement between the fisherman and the fishing vessel owner as to the destination, the fisherman is entitled to repatriation to the fisherman’s choice of the following destinations—

(a) the place at which the fisherman entered into the fisherman’s work agreement; or

(b) the fisherman’s country of residence.

Scope of duty to repatriate

16.  Where there is a duty on a fishing vessel owner to provide for the repatriation of a fisherman under regulation 14, that duty ends when—

(a) the fisherman is repatriated in accordance with regulation 14;

(b) the fishing vessel owner makes reasonable arrangements for repatriation which are unsuccessful because of the fisherman’s unreasonable conduct;

(c) the fishing vessel owner has used reasonable endeavours to contact the fisherman for a period of three months or more, but has been unable to make such contact;

(d) the fisherman confirms in writing to the fishing vessel owner that repatriation is not required; or

(e) the fisherman is dead.

Duty pending repatriation

17.—(1) A fishing vessel owner to which the duty in regulation 14 applies must make such provision as is necessary for the fisherman’s relief and maintenance pending repatriation.

(2) The fishing vessel owner must have regard to the fisherman’s personal circumstances and requirements when determining what provision is required under paragraph (1).

(3) Without prejudice to the generality of paragraph (1) the provision for relief and maintenance must include—

(a) food;

(b) potable water;

(c) clothing;

(d) accommodation;

(e) toiletries and other personal necessaries;

(f) surgical, medical, dental or optical treatment (including the repair or replacement of any appliance) for any condition requiring immediate care;

(g) in cases where legal aid is unavailable or insufficient, reasonable costs for the defence of the fisherman in any criminal proceeding in respect of any act or omission within the scope of the fisherman’s work agreement, being proceedings where neither the fishing vessel owner nor an agent of the fishing vessel owner is the complainant; and

(h) sufficient money to meet any minor ancillary expenses necessarily incurred or likely to be so incurred by the fisherman for his relief and maintenance.

(4) The provision to be made by a fishing vessel owner in accordance with paragraph (1) must include—

(a) the repayment of expenses incurred in bringing a fisherman ashore and maintaining him until he is brought ashore; and

(b) the payment of the expenses of the burial or cremation of a fisherman who dies before he can be repatriated.

(5) The duty in paragraph (1) ends when the duty in regulation 14 ends.

(6) A breach of paragraph (1) is an offence by the fishing vessel owner.

Prohibition on recovering costs from a fisherman

18.—(1) Subject to paragraph (2), a fisherman’s work agreement is void to the extent that it provides that a fisherman must make a payment to the fishing vessel owner in respect of either repatriation costs or relief or maintenance costs.

(2) A fisherman’s work agreement may provide that the fisherman must reimburse repatriation costs where the agreement is terminated because of the fisherman’s serious misconduct.

(3) If a fisherman’s work agreement contains provision described in paragraph (2) and that obligation arises, a deduction equivalent to those costs may be made from the wages or other payments due to the fisherman under that agreement.

(4) If a fisherman’s work agreement does not contain provision described in paragraph (2), the fishing vessel owner may recover the costs mentioned in paragraph (1) (or damages in respect of such costs) where the agreement is terminated because of the fisherman’s serious misconduct.

Secretary of State functions in the event of fishing vessel owner default

19.—(1) If the fishing vessel owner of a United Kingdom fishing vessel fails to make the provision required under regulation 14 or 17, the Secretary of State must make the required provision (or secure that it is made) and may recover the costs incurred from the fishing vessel owner as a civil debt.

(2) If the fishing vessel owner of a fishing vessel which is not a United Kingdom fishing vessel fails to make the provision required under regulation 14 or 17 the Secretary of State may make the required provision (or secure that it is made) and may recover the costs incurred from the fishing vessel owner as a civil debt.

(3) Subject to paragraph (5), the costs which the Secretary of State may recover under paragraphs (1) and (2) include—

(a) costs incurred by the Secretary of State in making the required provision (or securing that it is made); and

(b) costs incurred by the Secretary of State in reimbursing another person (including a State) which has made the required provision (or having secured its provision), whether or not the Secretary of State has requested or required them to do so.

(4) Subject to paragraph (5), if a fishing vessel owner of a United Kingdom fishing vessel fails to make the provision required under regulation 14 or 17 and the fisherman incurs costs in making the required provision (or securing that it is made), the fisherman may recover the costs from the fishing vessel owner as a civil debt.

(5) The costs incurred by the fisherman which are referred to in paragraph (4)—

(a) may not be recovered by the fisherman under paragraph (4) if they have been recovered by the Secretary of State under paragraph (1); and

(b) may not be recovered by the Secretary of State under paragraph (1) if they have been recovered by the fisherman under paragraph (4).

PART 5 Crew accommodation, food and complaint procedure

Crew accommodation

20.—(1) In this Part, “crew accommodation” means accommodation, including the construction, machinery, fittings and equipment of that accommodation, intended for or used by fishermen.

(2) A fishing vessel must comply with the requirements relating to crew accommodation set out in—

(a) Merchant Shipping Notice 1871, where the length overall of the vessel is less than 15 metres;

(b) Merchant Shipping Notice 1872, where the length overall of the vessel is 15 metres or more; but the registered length of the vessel is less than 24 metres, or

(c) Merchant Shipping Notice 1873, where the registered length of the vessel is 24 metres or more.

(3) A breach of paragraph (2) is an offence by the fishing vessel owner.

(4) The skipper, or a crew member appointed by the skipper for that purpose, must, at intervals not exceeding 7 days, and accompanied by at least one member of the crew, inspect the crew accommodation to ensure that it is clean, decently habitable and safe and maintained in a good state of repair.

(5) The skipper of the fishing vessel, or the crew member appointed by the skipper for that purpose, must record the findings of the inspection undertaken pursuant to paragraph (4) in the official log book of the vessel specifying—

(a) the time and date of the inspection;

(b) the name and rank of each person making the inspection; and

(c) the particulars of any respect in which the crew accommodation was found by the person making the inspection not to comply with these Regulations.

(6) In this regulation, “length overall” and “registered length” have meaning given in the Fishing Vessels (Codes of Practice) Regulations 2017(3).

Exemptions

21.—(1) The Secretary of State may exempt a fishing vessel from some or all of the requirements of paragraph (2) of regulation 20, provided that it does not result in overall conditions less favourable than those which would result from the application of the requirements of Annex 3 to the Convention.

(2) Before granting an exemption the Secretary of State must take into account the interests of fishermen having differing and distinctive religious and social practices.

(3) An exemption granted under this regulation must—

(a) be in writing;

(b) specify the date on which it takes effect; and

(c) specify the terms (if any) on which it is given.

(4) A breach of the terms of an exemption granted under paragraph (1) is an offence by the fishing vessel owner.

Provision of food and drinking water

22.—(1) The fishing vessel owner and the skipper of a fishing vessel must ensure that the food and drinking water that are provided on board the vessel—

(a) are suitable in respect of quality, quantity and nutritional value taking account of—

(i) the number of fishermen on board and the character, nature and duration of the voyage;

(ii) the different religious requirements and cultural practices in relation to food of the fishermen on board;

(b) do not contain anything which is likely to cause sickness or injury to health or which renders any food or drinking water unpalatable; and

(c) are otherwise fit for consumption.

(2) The fishing vessel owner and the skipper must ensure that the food and drinking water which are provided in accordance with paragraph (1) are provided free of charge to all fishermen while they are on board.

(3) A breach of paragraph (1) or (2) is an offence by the fishing vessel owner and the skipper.

Organisation of catering facilities

23.—(1) The fishing vessel owner and the skipper of a fishing vessel must ensure that—

(a) the galley and food storage facilities are maintained in a hygienic condition; and

(b) waste is kept in closed, well sealed containers and removed from food handling areas whenever necessary.

(2) A breach of paragraph (1) is an offence by the fishing vessel owner and the skipper.

Inspection of food and catering facilities

24.—(1) The skipper of a fishing vessel, or a crew member appointed to do so by the skipper, must, at intervals not exceeding 7 days, and accompanied by at least one member of the crew, inspect—

(a) the supplies of food and drinking water on board to check compliance with regulation 22; and

(b) the catering facilities to check compliance with regulation 23.

(2) A breach of paragraph (1) is an offence by the fishing vessel owner and the skipper.

(3) The skipper of the fishing vessel, or the crew member appointed by the skipper for that purpose, must record the findings of the inspection undertaken pursuant to paragraph (1) in the official log book of the vessel specifying—

(a) the time and date of the inspection;

(b) the name and rank of each person making the inspection; and

(c) the particulars of any respect in which the food, drinking water and catering facilities were found by the person making the inspection not to comply with these Regulations.

On-shore complaint procedure

25.—(1) A fisherman may lodge with the Secretary of State a complaint alleging a breach of the requirements of the Work in Fishing Convention, and the Secretary of State must treat the source of any such complaint as confidential.

(2) The fishing vessel owner and the skipper of a fishing vessel must ensure that a fisherman is not subjected to any detriment on the grounds that the fisherman has lodged a complaint, whether through an on-board procedure or to the Secretary of State, alleging a breach of the requirements of the Work in Fishing Convention.

PART 6 Medical care

Fishing vessel owner duty to make provision for medical treatment for fishermen

26.—(1) This regulation applies in relation to a fisherman who suffers sickness or injury during the term of the fisherman’s work agreement.

(2) The fishing vessel owner must ensure that the fisherman—

(a) receives medical treatment on board the vessel so far as is practicable;

(b) receives medical treatment ashore; and

(c) is taken ashore in a timely manner.

(3) The cost of such medical treatment and the transfer of the fisherman ashore is the responsibility of the fishing vessel owner.

PART 7 Insurance

Fishing vessel owners to have insurance

27.—(1) A United Kingdom fishing vessel may not enter or leave a port in the United Kingdom or elsewhere unless the fishing vessel owner has insurance in respect of that fishing vessel.

(2) A fishing vessel which is not a United Kingdom fishing vessel may not enter or leave a port in the United Kingdom unless the fishing vessel owner has insurance in respect of that fishing vessel.

(3) In paragraphs (1) and (2), a fishing vessel owner has insurance if there is in force in relation to the fishing vessel a contract of insurance (or other form of security) which provides financial assurance of an amount which the fishing vessel owner reasonably considers adequate to ensure that the fishing vessel owner will be able to meet any liabilities the fishing vessel owner may have, including liabilities under any fisherman’s work agreement, to provide compensation in the event of death or long term disability to fishermen arising from occupational injury, illness or hazard.

PART 8 Inspection of fishing vessels

Inspection of fishing vessels

28.—(1) For the purpose of checking compliance with these Regulations, a relevant inspector (or, in the case of a United Kingdom fishing vessel a proper officer) may at all reasonable times go on board a fishing vessel and inspect the vessel, its equipment, any articles on it and any documentation carried on it.

(2) Section 258(1A), (3) and (5) of the Act(4) (powers to inspect ships and their equipment etc.) apply in relation to paragraph (1) as if references in those subsections to “subsection 1 above” and “this section” were references to paragraph (1).

(3) Sections 259(1), (2), (5), (7) and (9) to (12) and 260(1) and (2) of the Act (powers of inspectors in relation to premises and ships and supplementary provisions) apply in relation to the inspection of a fishing vessel to which this regulation applies for the purpose of checking compliance with these Regulations as if—

(a) references in those sections to “this Act” were to these Regulations;

(b) for section 259(1)(b) there were substituted a reference to any fishing vessel to which this regulation applies;

(c) in section 259(2)(h)(iii) the words “or any instrument made under it” were omitted; and

(d) in section 259(5) the reference to “subsections (2) and (4) above for the purposes of Chapter II of Part VI” were to “subsection (2) above” and the reference to “those subsections” were to “that subsection”.

(4) Any regulations made under section 259(8) or section 260(3) of the Act apply for the purposes of the provisions of those sections as applied by paragraphs (2) and (3) as they apply for the purposes of the Act.

(5) Sections 261 to 266 of the Act(5) (improvement notices and prohibition notices) apply for the purposes of these Regulations as if the meaning of “the relevant statutory provisions” in section 261(4) was included these Regulations.

(6) In this regulation “relevant inspector” means any of the persons mentioned in section 258(1) of the Act.

PART 9 Penalties

Penalties

29.—(1) Subject to paragraphs (2) and (3), offences under these Regulations are punishable on summary conviction—

(a) in England and Wales by a fine; or

(b) in Scotland or Northern Ireland by a fine not exceeding level 5 on the standard scale.

(2) An offence under regulation 10(4) is punishable on summary conviction by a fine not exceeding level 4 on the standard scale.

(3) An offence under regulation 13(3) is punishable on summary conviction by a fine not exceeding level 2 on the standard scale.

(4) An offence under regulation 21(4) is punishable—

(a) on summary conviction—

(i) in England and Wales by a fine; or

(ii) in Scotland and Northern Ireland by a fine not exceeding the statutory maximum, or

(b) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine, or to both.

Defence

30.  In any proceedings for an offence under these Regulations it is a defence for the person charged to show that all reasonable steps had been taken by that person to ensure compliance with the provision concerned.

PART 10 Revocation

Revocation of Regulations

31.  The Merchant Shipping (Provisions and Water) Regulations 1989(6) are revoked.

PART 11 Review

Review

32.—(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provision contained in regulations 3 to 30, and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before 25th October 2023.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(7) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the obligations under the Work in Fishing Convention are implemented in other countries which are subject to the obligations.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a),

(b) assess the extent to which those objectives are achieved,

(c) assess whether those objectives remain appropriate, and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Signed by authority of the Secretary of State for Transport

Nusrat Ghani

Parliamentary Under Secretary of State

Department for Transport

24th October 2018