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11 September 2013
The Maritime Labour Convention 2006 entered into force on August 20 2013. Germany is the 43rd member state that has ratified the convention and adopted its standards in a new statute. The employment of seafarers on German-flagged vessels has been governed by the Maritime Labour Act since August 1 2013.
In the course of the reform on the law on seafarers, Germany also enacted new legislation with regard to working time for offshore personnel. Offshore personnel are usually, among others, technicians, divers, engineers or workers deployed onboard special offshore vessels operating in the exclusive economic zone and (in Germany to a lesser extent) the territorial sea. The new enactment, the Offshore Working Time Regulation, comes in the form of a statutory instrument. Its rules apply not only to German-flagged, but also to foreign-flagged offshore vessels.
According to Article 2(1)(f), a seafarer is any person who is employed, engaged or works in any capacity onboard a ship to which the convention applies. However, member states may determine through their competent authorities and after consultation with shipowners' and seafarers' organisations, what categories of persons are not seafarers under their respective national law (Article 2(3) of the convention).
The International Labour Organisation pointed out in Resolution 7 (adopted on February 22 2006) that specialist offshore technicians need not be necessarily considered seafarers, because the nature of their work is not part of the routine business of a ship. Like other member states Germany followed this approach and exempted offshore personnel from its Maritime Labour Act. The exempt offshore personnel are legally defined in the act as persons performing 'offshore activities' – "erecting, reconstructing or using structures, artificial islands or other installations at sea".
Germany's new law on working time for offshore personnel takes no regard of the flag of the vessel. All persons performing offshore activities, whether they work onboard a UK, Dutch, Belgian, Danish, Bahamian or Liberian-flagged vessel, are subject to its provisions, even in the German exclusive economic zone. Hence, the interesting issue arises of whose national law prevails if the competent authority of a foreign flag state determines that offshore technicians are legally seafarers (ie, not to be exempt from the convention).
The flag state would certainly argue that a coastal state – assuming it is a member state – is bound by the determination according to Article 2(3). The coastal state, on the other hand, would point to its own entitlement to determine the category of person that is excluded. Because the coastal state's position is supplemented strongly by either its rights of jurisdiction in the exclusive economic zone (Article 56(1)(b)(1) United Nations Convention on the Law of the Sea) or its sovereign rights in the territorial sea, as the case may be, it is arguably the national law of the coastal state that will be predominant in the end.
In any event, from the legal practitioner's perspective, shipowners or charterers of foreign-flagged offshore vessels are well advised to comply with German employment law on working time for offshore personnel to:
The new regulation extends the limits for overtime hours that can be instructed by the employer. Offshore personnel may now work up to 12 hours per calendar day (ie, including Sundays and bank holidays). They are entitled to short breaks – 60 minutes (aggregate) during a 12-hour shift – that can be divided into 15-minute units. The first break is required after six hours of work. The time spent for breaks is not working time. However, transport to and from the offshore site generally is.
To protect the health of the offshore personnel, Germany has set limits regarding the duration that they may stay at sea. In the event of regular daily 12-hour shifts, the maximum stay is two consecutive weeks, which means a total of 168 working hours. In all other cases the maximum period for which offshore personnel are allowed to stay offshore is three consecutive weeks, with no more than 210 working hours. In this context, staying at sea should not be mistaken for working onboard. Exceeding these limits is admissible only for a small group of employees under exceptional circumstances.
For overtime at sea offshore personnel are entitled to additional leave that must be taken onshore. For every hour exceeding the eight hours per day, they are entitled to one hour of additional leave. Eight hours of leave constitutes one additional day of leave. Working on Sundays or bank holidays also gives rise to one additional day of leave. Employers are obliged to keep records of all working hours and the balance of additional leave days earned.
Shipowners and charterers of offshore vessels should generally be familiar with the basic rules on working time admissible for offshore personnel deployed in the German exclusive economic zone and territorial sea. Compliance with the new regulation can be supervised by the German authorities irrespective of the flag that the vessel is flying. Although it is too early to predict how strictly the authorities will enforce the new legislation once a violation has occurred, shipowners and charterers of offshore vessels should not risk breaching their contract with their customers.
For further information on this topic please contact Jörg Noltin or Marco G Remiorz at Dabelstein & Passehl by telephone (+49 40 31 77 970), fax (+49 40 31 77 97 77) or email (email@example.com or firstname.lastname@example.org).
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