COUNCIL DIRECTIVE 98/35/EC of 25 May 1998 amending Directive 94/58/EC on the minimum level of training of seafarers
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 84(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 189c of the Treaty (3),
(1) Whereas Article 12(2) of Council Directive 94/58/EC of 22 November 1994 on the minimum level of training of seafarers (4) provides that following the adoption of new instruments or protocols to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention) the Council, acting on a proposal from the Commission, shall decide on the detailed arrangements for ratifying those new instruments or protocols, while ensuring that they are applied uniformly and simultaneously in the Member States;
(2) Whereas Article 9(3)(a) of that Directive provides that a set of criteria for the recognition of types of certificates issued by institutes or administrations of third countries will be defined by the Council, acting in accordance with the conditions of the Treaty;
(3) Whereas actions to be taken at Community level in the field of maritime safety and pollution prevention at sea should be in line with internationally agreed rules and standards;
(4) Whereas in its resolution of 24 March 1997 on a new strategy to increase the competitiveness of Community shipping (5) the Council sought to promote the employment of Community seafarers and shore-based personnel; whereas to that end the Council agreed that action should be undertaken to help Community shipping to continue striving for high quality and improve its competitiveness by ensuring the continued high-quality training of Community seafarers of all ranks and of shore-based personnel;
(5) Whereas the 1995 Conference of Parties to the STCW Convention adopted the revised Annex to the STCW Convention and the Seafarers' Training, Certification and Watchkeeping Code (STCW Code);
(6) Whereas Member States may establish standards higher than the minimum standards laid down in the STCW Convention and the Directive;
(7) Whereas the Regulations of the STCW Convention set out in Annex I to this Directive should be supplemented by the mandatory provisions contained in Part A of the STCW Code; whereas Part B of the STCW Code contains recommended guidance intended to assist Parties to the STCW Convention and those involved in implementing, applying or enforcing its measures to give the Convention full and complete effect in a uniform manner;
(8) Whereas the establishment of common criteria for the Member States' recognition of certificates issued by third countries should be based on the training and certification requirements as agreed in the framework of the STCW Convention;
(9) Whereas, in the interests of safety at sea, Member States should recognise qualifications proving the required level of training only where these are issued by or on behalf of Parties to the STCW Convention which have been identified by the Maritime Safety Committee of the International Maritime Organisation (IMO) as having been shown to have given, and still to be giving, full effect to the standards set out in that Convention; whereas, to bridge the time gap until that IMO Committee has been able to carry out such identification, a procedure for the preliminary recognition of certificates is needed;
(10) Whereas, where appropriate, maritime institutes, training programmes and courses should be inspected; whereas criteria for such inspection should therefore be established;
(11) Whereas the Council should review Annex II in the light of the experience gained in applying the Directive, acting on a proposal to be submitted by the Commission within five years of the adoption of this Directive;
(12) Whereas until 1 February 2002 Member States should be allowed to accept on their ships seafarers holding certificates issued in accordance with the provisions which applied before 1 February 1997, the date of entry into force of the revised STCW Convention, provided that those seafarers began their service or training before 1 August 1998;
(13) Whereas for the enhancement of maritime safety and pollution prevention at sea provisions on minimum rest periods for watchkeeping personnel should be established in this Directive in accordance with the STCW Convention; whereas those provisions should be reviewed within the framework of the establishment of a possible separate instrument on working time;
(14) Whereas it is appropriate to include in this Directive provisions on port State control, pending the amendment of Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, 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) (6) in order to transfer to that Directive the provisions on port State control which are included in Articles 8(6), 10, 10a and 11 of this Directive,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 94/58/EC is hereby amended as follows:
(1) Article 2 shall be replaced by the following:
'Article 2
1. Member States shall take the measures necessary to ensure that seafarers serving on ships as defined in Article 1 are trained as a minimum in accordance with the requirements of the STCW Convention, as laid down in Annex I to this Directive, and hold certificates as defined in Article 3 or appropriate certificates as defined in Article 4(aa).
2. Member States shall take the measures necessary to ensure that those crew members that must be certified in accordance with Regulation III/10.4 of the International Convention on the Safety of Life at Sea (SOLAS Convention) are trained and certificated in accordance with this Directive.`;
(2) the following Article shall be inserted:
'Article 3a
Certificates and endorsements
1. Certificates shall be issued in accordance with Article 5d.
2. Certificates for masters, officers and radio operators shall be endorsed by the Member State as prescribed in this Article.
3. Certificates shall be in the official language or languages of the issuing Member State.
4. In respect of radio operators, Member States may:
(1) include the additional knowledge required by the relevant regulations in the examination for the issue of a certificate complying with the Radio Regulations; or
(2) issue a separate certificate indicating that the holder has the additional knowledge required by the relevant regulations.
5. At the discretion of a Member State endorsements may be incorporated in the format of the certificates being issued as provided for in section A-I/2 of the STCW Code. If so incorporated the form used shall be that set out in section A-I/2, paragraph 1. If issued otherwise, the form of endorsements used shall be that set out in paragraph 2 of that section.
6. A Member State which recognises a certificate under the procedure laid down in Article 9(3)(a) shall endorse that certificate to attest its recognition. The form of the endorsement used shall be that set out in paragraph 3 of section A-I/2 of the STCW Code.
7. The endorsements referred to in paragraphs 5 and 6:
(1) may be issued as separate documents;
(2) shall each be assigned a unique number, except that endorsements attesting the issue of a certificate may be assigned the same number as the certificate concerned, provided that that number is unique; and
(3) shall each expire as soon as the certificate endorsed expires or is withdrawn, suspended or cancelled by the Member State or third country which issued it and, in any case, within five years of its date of issue.
8. The capacity in which the holder of a certificate is authorised to serve shall be identified in the form of endorsement in terms identical to those used in the applicable safe-manning requirements of the Member State concerned.
9. A Member State may use a format different from the format laid down in section A-I/2 of the STCW Code, provided that, as a minimum, the required information is provided in roman characters and Arabic figures, taking account of the variations permitted under section A-I/2.
10. Subject to Article 9(4) any certificate required by the Directive must be kept available in its original form on board the ship on which the holder is serving.`;
(3) Article 4 shall be replaced by the following:
'Article 4
For the purposes of this Directive:
(a) "master" shall mean the person having command of a ship;
(b) "officer" shall mean a member of the crew, other than the master, designated as such by national law or regulations or, in the absence of such designation, by collective agreement or custom;
(c) "deck officer" shall mean an officer qualified in accordance with the provisions of Chapter II of Annex I;
(d) "chief mate" shall mean the officer next in rank to the master upon whom the command of the ship will fall in the event of the incapacity of the master;
(e) "engineer officer" shall mean an officer qualified in accordance with the provisions of Chapter III of Annex I;
(f) "chief engineer officer" shall mean the senior engineer officer responsible for the mechanical propulsion and the operation and maintenance of the mechanical and electrical installations of the ship;
(g) "second engineer officer" shall mean the engineer officer next in rank to the chief engineer officer upon whom the responsibility for the mechanical propulsion and the operation and maintenance of the mechanical and electrical installations of the ship will fall in the event of the incapacity of the chief engineer officer;
(h) "assistant engineer officer" shall mean a person under training to become an engineer officer and designated as such by national law or regulations;
(i) "radio operator" shall mean a person holding an appropriate certificate issued or recognised by the competent authorities under the provisions of the Radio Regulations;
(j) "rating" shall mean a member of the ship's crew other than the master or an officer;
(k) "seagoing ship" shall mean a ship other than those which navigate exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply;
(l) "ship flying the flag of a Member State" shall mean a ship registered in and flying the flag of a Member State in accordance with its legislation. A ship not corresponding to this definition shall be regarded as a ship flying the flag of a third country;
(m) "near-coastal voyages" shall mean voyages in the vicinity of a Member State as defined by that Member State;
(n) "propulsion power" shall mean the total maximum continuous rated output power in kilowatts of all of a ship's main propulsion machinery which appears on the ship's certificate of registry or other official document;
(o) "oil tanker" shall mean a ship constructed and used for the carriage of petroleum and petroleum products in bulk;
(p) "chemical tanker" shall mean a ship constructed or adapted and used for the carriage in bulk of any liquid product listed in Chapter 17 of the International Bulk Chemical Code as in force at the time of the adoption of this Directive;
(q) "liquefied-gas tanker" shall mean a ship constructed or adapted and used for the carriage in bulk of any liquefied gas or other product listed in Chapter 19 of the International Gas Carrier Code as in force at the time of the adoption of this Directive;
(r) "Radio Regulations" shall mean the revised radio regulations, adopted by the World Administrative Radio Conference for the Mobile Service as in force at the time of the adoption of this Directive;
(s) "passenger ship" shall mean a seagoing ship which carries more than 12 passengers;
(t) "fishing vessel" shall mean a vessel used for catching fish or other living resources of the sea;
(u) "STCW Convention" shall mean the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers as it applies to the matters concerned taking into account the transitional provisions of Article VII and Regulation I/15 of the Convention and including, where appropriate, the applicable provisions of the STCW Code, all being applied as in force at the time of the adoption of this Directive;
(v) "radio duties" shall include, as appropriate, watchkeeping and technical maintenance and repairs conducted in accordance with the Radio Regulations, the International Convention for the Safety of Life at Sea (1974) (SOLAS) as in force at the time of the adoption of this Directive and, at the discretion of each Member State, the relevant recommendations of the International Maritime Organisation (IMO);
(w) "ro-ro passenger ship" shall mean a passenger ship with ro-ro cargo spaces or special-category spaces as defined in the SOLAS Convention;
(x) "STCW Code" shall mean the Seafarers' Training, Certification and Watchkeeping (STCW) Code as adopted by Resolution 2 of the 1995 STCW Conference of Parties, as in force at the time of the adoption of this Directive;
(y) "function" shall mean a group of tasks, duties and responsibilities, as specified in the STCW Code, necessary for ship operation, safety of life at sea or protection of the marine environment;
(z) "company" shall mean the owner of the ship or any other organisation or person such as the manager or the bareboat charterer who has assumed the responsibility for operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed on the company by these regulations;
(aa) "appropriate certificate" shall mean a certificate issued and endorsed in accordance with this Directive and entitling the lawful holder thereof to serve in the capacity and perform the functions involved at the level of responsibility specified therein on a ship of the type, tonnage, power and means of propulsion concerned while engaged on the particular voyage concerned;
(ab) "seagoing service" shall mean service on board a ship relevant to the issue of a certificate or other qualification;
(ac) "approved" shall mean approved by a Member State in accordance with this Directive;
(ad) "third country" shall mean any country which is not a Member State;
(ae) "month" shall mean a calendar month or 30 days made up of periods of less than one month.`;
(4) the following Articles shall be inserted:
'Article 5a
Principles governing near-coastal voyages
1. When defining near-coastal voyages Member States shall not impose training, experience or certification requirements on seafarers serving on board ships entitled to fly the flag of another Member State or of another Party to the STCW Convention and engaged on such voyages in a manner resulting in more stringent requirements for such seafarers than for seafarers serving on board ships entitled to fly its own flag. In no case shall a Member State impose requirements in respect of seafarers serving on board ships flying the flag of another Member State or of another Party to the STCW Convention in excess of those of the Directive in respect of ships not engaged on near-coastal voyages.
2. With respect to ships entitled to fly the flag of a Member State regularly engaged on near-coastal voyages off the coast of another Member State or of another Party to the STCW Convention, the Member State the flag of which a ship is entitled to fly shall prescribe training, experience and certification requirements for seafarers serving on such ships at least equal to those of the Member State or the Party to the STCW Convention off the coast of which the ship is engaged, provided that they do not exceed the requirements of the Directive in respect of ships not engaged on near-coastal voyages. Seafarers serving on a ship which extends its voyage beyond what is defined as a near-coastal voyage by a Member State and enters waters not covered by that definition shall fulfil the appropriate requirements of the Directive.
3. A Member State may afford a ship which is entitled to fly its flag the benefits of the near-coastal voyage provisions of this Directive when it is regularly engaged off the coast of a non-Party to the STCW Convention on near-coastal voyages as defined by that Member State.
4. Upon deciding on the definition of near-coastal voyages and the conditions of education and training required thereof in accordance with the requirements of this Article, Member States shall communicate to the Commission the details of the provisions they have adopted.
Article 5b
Penalties or disciplinary measures
1. Member States shall establish processes and procedures for the impartial investigation of any reported incompetence, act or omission, that may pose a direct threat to safety of life or property at sea or to the marine environment, on the part of the holders of certificates or endorsements issued by that Member State in connection with their performance of duties relating to their certificates and for the withdrawal, suspension and cancellation of such certificates for such cause and for the prevention of fraud.
2. Each Member State shall prescribe penalties or disciplinary measures for cases in which the provisions of its national legislation giving effect to the Directive are not complied with in respect of ships entitled to fly its flag or of seafarers duly certificated by it.
3. In particular, such penalties or disciplinary measures shall be prescribed and enforced in cases in which:
(1) a company or a master has engaged a person not holding a certificate as required by the Directive;
(2) a master has allowed any function or service in any capacity which under the Directive must be performed by a person holding an appropriate certificate to be performed by a person not holding the required certificate, a valid dispensation or having the documentary proof required by Article 9(4); or
(3) a person has obtained by fraud or forged documents an engagement to perform any function or serve in any capacity which under the Directive must be performed or filled by a person holding a certificate or dispensation.
4. Member States within the jurisdiction of which any company which or any person who is believed on clear grounds to have been responsible for or to have knowledge of any apparent non-compliance with the Directive specified in paragraph 3 is located shall extend cooperation to any Member State or other party to the STCW Convention which advises them of its intention to initiate proceedings under its jurisdiction.
Article 5c
Quality standards
1. Each Member State shall ensure that:
(1) all training, assessment of competence, certification, endorsement and revalidation activities carried out by non-governmental agencies or entities under its authority are continuously monitored through a quality-standards system to ensure the achievement of defined objectives, including those concerning the qualifications and experience of instructors and assessors;
(2) where governmental agencies or entities perform such activities, there shall be a quality-standards system;
(3) the education and training objectives and related standards of competence to be achieved are clearly defined and identify the levels of knowledge, understanding and skills appropriate to the examinations and assessments required under the STCW Convention. The objectives and related quality standards may be specified separately for different courses and training programmes and shall cover the administration of the certification system;
(4) the field of application of the quality standards cover the administration of the certification systems, all training courses and programmes, examinations and assessments carried out by or under the authority of each Member State and the qualifications and experience required of instructors and assessors, having regard to the policies, systems, controls and internal quality-assurance reviews established to ensure achievement of the defined objectives.
2. Member States shall also ensure that independent evaluations of the knowledge, understanding, skills and competence acquisition and assessment activities, and of the administration of the certification system, are conducted at intervals of not more than five years by qualified persons who are not themselves involved in the activities concerned in order to verify that:
(1) all internal management control and monitoring measures and follow-up actions comply with planned arrangements and documented procedures and are effective in ensuring achievement of the defined objectives;
(2) the results of each independent evaluation are documented and brought to the attention of those responsible for the area evaluated;
(3) timely action is taken to correct deficiencies.
3. A report relating to each evaluation carried out pursuant to paragraph 2 shall be communicated by the Member State concerned to the Commission within six months of the date of the evaluation.
Article 5d
Medical standards - Issue and registration of certificates
1. Member States shall establish standards of medical fitness for seafarers, particularly regarding eyesight and hearing.
2. Member States shall ensure that certificates are issued only to candidates who comply with the requirements of this Article.
3. Each candidate for certification shall provide satisfactory proof:
(1) of his identity;
(2) that his age is not less than that prescribed in the regulations in Annex I relevant to the certificate applied for;
(3) that he meets the standards of medical fitness, particularly regarding eyesight and hearing, established by the Member State and holds a valid document attesting to his medical fitness, issued by a duly qualified medical practitioner recognised by the competent authority of the Member State;
(4) of having completed the seagoing service and any related compulsory training prescribed in the regulations in Annex I for the certificate applied for;
(5) that he meets the standards of competence prescribed in the regulations in Annex I for the capacities, functions and levels that are to be identified in the endorsement to the certificate.
4. Each Member State shall undertake:
(1) to maintain a register or registers of all certificates and endorsements for masters and officers and, as appropriate, ratings, which are issued, have expired or have been revalidated, suspended, cancelled or reported lost or destroyed and of dispensations issued;
(2) to make available information on the status of such certificates, endorsements and dispensations to other Member States or other parties to the Convention and companies which request verification of the authenticity and validity of certificates produced to them by seafarers seeking recognition of their certificates or employment on board ship.
Article 5e
Revalidation of certificates
1. Every master, officer and radio operator holding a certificate issued or recognised under any chapter of Annex I other than Chapter VI who is serving at sea or intends to return to sea after a period ashore shall, in order to continue to qualify for seagoing service, be required at intervals not exceeding five years:
(1) to meet the standards of medical fitness prescribed by Article 5d; and
(2) to establish continued professional competence in accordance with section A-I/11 of the STCW Code.
2. Every master, officer and radio operator shall, for continuing seagoing service on board ships for which special training requirements have been internationally agreed upon, successfully complete approved relevant training.
3. Each Member State shall compare the standards of competence which it required of candidates for certificates issued before 1 February 2002 with those specified for the appropriate certificate in Part A of the STCW Code, and shall determine the need to require the holders of such certificates to undergo appropriate refresher and updating training or assessment.
Refresher and updating courses shall be approved and include changes in relevant national and international regulations concerning the safety of life at sea and the protection of the marine environment and take account of any updating of the standard of competence concerned.
4. Each Member State shall, in consultation with those concerned, formulate or promote the formulation of a structure of refresher and updating courses as provided for in section A-I/11 of the STCW Code.
5. For the purpose of updating the knowledge of masters, officers and radio operators, each Member State shall ensure that the texts of recent changes in national and international regulations concerning the safety of life at sea and the protection of the marine environment are made available to ships entitled to fly its flag.
Article 5f
Use of simulators
1. The performance standards and other provisions set out in section A-I/12 of the STCW Code and such other requirements as are prescribed in Part A of the STCW Code for any certificate concerned shall be complied with in respect of:
(1) all mandatory simulator-based training;
(2) any assessment of competence required by Part A of the STCW Code which is carried out by means of a simulator;
(3) any demonstration, by means of a simulator, of continued proficiency required by Part A of the STCW Code.
2. Simulators installed or brought into use before 1 February 2002 may be exempted from full compliance with the performance standards referred to in paragraph 1 at the discretion of each Member State.
Article 5g
Responsibilities of companies
1. In accordance with paragraphs 2 and 3 Member States shall hold companies responsible for the assignment of seafarers for service in their ships in accordance with this Directive, and shall require every company to ensure that:
(1) each seafarer assigned to any of its ships holds an appropriate certificate in accordance with the provisions of this Directive and as established by the Member State;
(2) its ships are manned in accordance with the applicable safe-manning requirements of the Member State;
(3) documentation and data relevant to all seafarers employed on its ships are maintained and readily accessible, and include, without being limited to, documentation and data on their experience, training, medical fitness and competence in assigned duties;
(4) on being assigned to any of its ships seafarers are familiarised with their specific duties and with all ship arrangements, installations, equipment, procedures and ship characteristics that are relevant to their routine or emergency duties;
(5) the ship's complement can effectively coordinate their activities in an emergency situation and in performing functions vital to safety or to the prevention or mitigation of pollution.
2. Companies, masters and crew members shall each have responsibility for ensuring that the obligations set out in this Article are given full and complete effect and that such other measures as may be necessary are taken to ensure that each crew member can make a knowledgeable and informed contribution to the safe operation of the ship.
3. The company shall provide written instructions to the master of each ship to which the Directive applies, setting out the policies and the procedures to be followed to ensure that all seafarers who are newly employed on board the ship are given a reasonable opportunity to become familiar with the shipboard equipment, operating procedures and other arrangements needed for the proper performance of their duties, before being assigned to those duties. Such policies and procedures shall include:
(1) the allocation of a reasonable period of time during which each newly employed seafarer will have an opportunity to become acquainted with:
1.1. the specific equipment the seafarer will be using or operating; and
1.2. ship-specific watchkeeping, safety, environmental protection and emergency procedures and arrangements the seafarer needs to know to perform the assigned duties properly;
(2) the designation of a knowledgeable crew member who will be responsible for ensuring that each newly employed seafarer is given an opportunity to receive essential information in a language the seafarer understands.
Article 5h
Fitness for duty
1. For the purpose of preventing fatigue Member States shall establish and enforce rest periods for watchkeeping personnel and require that watch systems are so arranged that the efficiency of watchkeeping personnel is not impaired by fatigue and that duties are so organised that the first watch at the start of a voyage and subsequent relieving watches are sufficiently rested and otherwise fit for duty.
2. All persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch shall be allowed at least 10 hours of rest in any 24 hour period.
3. The hours of rest may be divided into no more than two periods, one of which shall be at least six hours long.
4. The requirements for rest periods laid down in paragraphs 1 and 2 need not be maintained in the event of an emergency or drill or in other overriding operational conditions.
5. Notwithstanding paragraphs 2 and 3, the minimum period of 10 hours may be reduced to not less than six consecutive hours provided that no such reduction shall extend beyond two days and at least 70 hours of rest are provided each seven-day period.
6. Member States shall require that watch schedules be posted where they are easily accessible.`;
(5) Article 7 shall be replaced by the following:
'Article 7
1. Member States shall designate the authorities or bodies which shall:
- give the training referred to in Article 5,
- organise and/or supervise the examinations where required,
- issue the certificates of competence referred to in Article 5d, and
- grant the dispensations provided for in Article 6.
2. Member States shall ensure that:
Training and assessment
(a) all training and assessment of seafarers is:
(1) structured in accordance with the written programmes, including such methods and media of delivery, procedures and course material as are necessary to achieve the prescribed standard of competence; and
(2) conducted, monitored, evaluated and supported by persons qualified in accordance with paragraphs (d), (e) and (f);
(b) persons conducting in-service training or assessment on board ship do so only when such training or assessment will not adversely affect the normal operation of the ship and they can dedicate their time and attention to training or assessment;
Qualifications of instructors, supervisors and assessors
(c) instructors, supervisors and assessors are appropriately qualified for the particular types and levels of training or assessment of competence of seafarers either on board or ashore;
In-service training
(d) any person conducting in-service training of a seafarer, either on board or ashore, which is intended to be used in qualifying for certification under the Directive:
(1) has an appreciation of the training programme and an understanding of the specific training objectives for the particular type of training being conducted,
(2) is qualified in the task for which training is being conducted, and
(3) if conducting training using a simulator:
3.1. has received appropriate guidance in instructional techniques involving the use of simulators, and
3.2. has gained practical operational experience on the particular type of simulator being used;
(e) any person responsible for the supervision of the in-service training of a seafarer intended to be used in qualifying for certification has a full understanding of the training programme and the specific objectives for each type of training being conducted;
Assessment of competence
(f) any person conducting in-service assessment of the competence of a seafarer, either on board or ashore, which is intended to be used in qualifying for certification:
(1) has an appropriate level of knowledge and understanding of the competence to be assessed;
(2) is qualified in the task for which the assessment is being made;
(3) has received appropriate guidance in assessment methods and practice;
(4) has gained practical assessment experience; and
(5) if conducting assessment involving the use of simulators, has gained practical assessment experience on the particular type of simulator under the supervision and to the satisfaction of an experienced assessor;
Training and assessment within an institution
(g) when a Member State recognises a course of training, a training institution, or a qualification granted by a training institution, as part of its requirements for the issue of a certificate, the qualifications and experience of instructors and assessors are covered in the application of the quality standard provisions of Article 5e. Such qualification, experience and application of quality standards shall incorporate appropriate training in instructional techniques and training and assessment methods and practice and comply with all applicable requirements of paragraphs (d) to (f).`;
(6) Article 8 shall be replaced by the following:
'Article 8
Member States shall ensure that:
(1) without prejudice to paragraphs 2 and 4, there are at all times, on board all ships flying the flag of a Member State, means in place for effective oral communication relating to safety between all members of the ship's crew, particularly with regard to the correct and timely reception and understanding of messages and instructions;
(2) on board all passenger ships flying the flag of a Member State and on board all passenger ships starting and/or finishing a voyage in a Member State port, to ensure effective crew performance in safety matters, a working language is established and recorded in the ship's log-book.
The company or the master, as appropriate, shall determine the appropriate working language. Each seafarer shall be required to understand and, where appropriate, give orders and instructions and report back in that language.
If the working language is not an official language of the Member State, all plans and lists that must be posted shall include translations into the working language;
(3) on board passenger ships, personnel nominated on muster lists to assist passengers in emergency situations are readily identifiable and have communication skills that are sufficient for that purpose, taking into account an appropriate and adequate combination of any of the following factors:
(a) the language or languages appropriate to the principal nationalities of passengers carried on a particular route;
(b) the likelihood that an ability to use elementary English vocabulary for basic instructions can provide a means of communicating with a passenger in need of assistance whether or not the passenger and crew member share a common language;
(c) the possible need to communicate during an emergency by some other means (e.g. by demonstration, hand signals, or calling attention to the location of instructions, muster stations, life-saving devices or evacuation routes when verbal communication is impractical);
(d) the extent to which complete safety instructions have been provided to passengers in their native language or languages;
(e) the languages in which emergency announcements may be broadcast during an emergency or drill to convey critical guidance to passengers and to facilitate crew members in assisting passengers;
(4) on board oil tankers, chemical tankers and liquefied gas tankers flying the flag of a Member State, the master, officers and ratings are able to communicate with each other in (a) common working language(s);
(5) there are adequate means for communication between the ship and the shore-based authorities, either in a common language or in the language of those authorities;
(6) when carrying out port State control under Directive 95/21/EC, Member States also check that ships flying the flag of a State other than a Member State comply with this Article.`;
(7) Articles 9(3) and (4) shall be replaced by the following:
'3. Seafarers who do not possess the certificates referred to in Article 3 may be allowed to serve on ships flying the flag of a Member State, provided a decision on the recognition of their appropriate certificates has been adopted through the procedure set out below:
(a) when recognising, by endorsement, an appropriate certificate issued by a third country, the Member State shall proceed in accordance with the procedures and criteria set out in Annex II;
(b) Member States shall notify the Commission, which shall inform the other Member States, of the appropriate certificates they have recognised or intend to recognise in accordance with the criteria referred to in (a);
(c) if within three months of Member States having been informed by the Commission in accordance with paragraph (b) an objection is raised by a Member State or the Commission on the basis of the criteria referred to in (a), the Commission shall subject the matter to the procedure laid down in Article 13. The Member State concerned shall take appropriate measures to implement the decisions taken in accordance with the procedure laid down in Article 13;
(d) when an appropriate certificate issued by a third country has been recognised under the above procedure, and if, after the completion of its evaluation the Maritime Safety Committee of the IMO has not been able to identify the third country as having demonstrated that full and complete effect is given to the provisions of the STCW Convention, the Commission shall subject the matter to the procedure laid down in Article 13 in order to reassess the recognition of the certificates issued by that country. The Member State concerned shall take appropriate measures to implement the decisions taken in accordance with the procedure laid down in Article 13;
(e) the Commission shall draw up and update a list of the appropriate certificates that have been recognised under the above procedure. The list shall be published in the Official Journal of the European Communities.
4. Notwithstanding Article 3a(6), a Member State may, if circumstances require, allow a seafarer to serve in a capacity other than radio officer or radio operator, except as provided by the Radio Regulations, for a period not exceeding three months on board a ship flying its flag, while holding an appropriate and valid certificate issued and endorsed as required by a third country, but not yet endorsed for recognition by the Member State concerned so as to render it appropriate for service on board a ship flying its flag. Documentary proof shall be kept readily available that application for an endorsement has been submitted to the competent authorities.`;
(8) Articles 10 and 11 shall be replaced by the following:
'Article 10
Port State control
1. Irrespective of the flag it flies each ship, with the exception of those types of ships excluded by Article 1, shall, while in the ports of a Member State, be subject to port State control by officers duly authorised by that Member State to verify that all seafarers serving on board who are required to be certificated by the STCW Convention are so certificated or hold appropriate dispensations.
2. When exercising port State control under this Directive, Member States shall ensure that all relevant provisions and procedures laid down in Directive 95/21/EC are applied.
Article 10a
Port State control procedures
1. Without prejudice to Directive 95/21/EC, port State control pursuant to Article 10 shall be limited to the following:
- verification that every seafarer serving on board who must be certificated in accordance with the STCW Convention holds an appropriate certificate or a valid dispensation or provides documentary proof that an application for an endorsement attesting recognition has been submitted to the authorities of the Flag State,
- verification that the numbers and certificates of the seafarers serving on board are in accordance with the safe-manning requirements of the authorities of the Flag State.
2. The ability of the ship's seafarers to maintain watchkeeping standards as required by the STCW Convention shall be assessed in accordance with Part A of the STCW Code if there are clear grounds for believing that such standards are not being maintained because any of the following has occurred:
- the ship has been involved in a collision, grounding or stranding,
- there has been a discharge of substances from the ship when under way, at anchor or at berth which is illegal under any international convention,
- the ship has been manoeuvred in an erratic or unsafe manner whereby routing measures adopted by the IMO, or safe navigation practices and procedures have not been followed,
- the ship is otherwise being operated in such a manner as to pose a danger to persons, property or the environment,
- a certificate has been fraudulently obtained or the holder of a certificate is not the person to whom that certificate was originally issued,
- the ship is flying the flag of a country which has not ratified the STCW Convention, or has a master, officer or rating holding a certificate issued by a third country which has not ratified the STCW Convention.
3. Notwithstanding verification of the certificate, assessment under paragraph 2 may require the seafarer to demonstrate the relevant competence at the place of duty. Such a demonstration may include verification that operational requirements in respect of watchkeeping standards have been met and that there is a proper response to emergency situations within the seafarer's level of competence.
Article 11
Detention
Without prejudice to Directive 95/21/EC, the following deficiencies, in so far as it has been determined by the officer carrying out the port State control that they pose a danger to persons, property or the environment, shall be the only grounds under this Directive on which a Member State may detain a ship:
- failure of seafarers to hold certificates, to have appropriate certificates, to have valid dispensations or provide documentary proof that an application for an endorsement attesting recognition has been submitted to the authorities of the Flag State,
- failure to comply with the applicable safe-manning requirements of the Flag State,
- failure of navigational or engineering-watch arrangements to conform to the requirements specified for the ship by the Flag State,
- absence in a watch of a person qualified to operate equipment essential to safe navigation, safety radiocommunications or the prevention of marine pollution,
- failure to provide proof of professional proficiency for the duties assigned to seafarers for the safety of the ship and the prevention of pollution,
- inability to provide for the first watch at the commencement of a voyage and for subsequent relieving watches persons who are sufficiently rested and otherwise fit for duty.`;
(9) Article 12 shall be amended as follows:
- in paragraph 1, '(q), (r) and (s)` shall be replaced by '(p), (q), (r), (w) and (x)`;
- the following paragraph 1a shall be inserted:
'The Council shall decide, in accordance with the conditions of the Treaty, on any amendment of Annex II, acting on a proposal to be submitted by the Commission within five years of the adoption of the amending Directive 98/35/EC (*) in the light of the experience gained in applying this Directive;
(*) OJ L 172, 17.6.1998, p. 1.`,
- in paragraph 2, '(v)` shall be replaced by '(u)`;
(10) the following Article shall be inserted:
'Article 13a
Transitional provisions
1. Until 1 February 2002 Member States may continue to issue, recognise and endorse certificates in accordance with the provisions which applied before 1 February 1997 in respect of those seafarers who began approved seagoing service, approved education and training programmes or approved training courses before 1 August 1998.
2. Until 1 February 2002 Member States may continue to renew and revalidate certificates and endorsements in accordance with the provisions which applied before 1 February 1997.
3. Where pursuant to Article 5e a Member State reissues or extends the validity of certificates which it originally issued under the provisions which applied before 1 February 1997, the Member State may, at its discretion, replace tonnage limitations appearing on the original certificates as follows:
(1) "200 gross registered tonnes" may be replaced by "500 gross tonnage";
(2) "1 600 gross registered tonnes" may be replaced by "3 000 gross tonnage"`;
(11) the Annex shall be replaced by Annex I to this Directive;
(12) Annex II to this Directive shall be added.
Article 2
1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 1999 or within one year of the adoption of this Directive, whichever is earlier.
2. When the Member States adopt those measures they shall contain references to this Directive or shall be accompanied by such references on the occasion of their official publication. The methods of making such references shall be laid down by the Member States.
3. Member States shall lay down systems of penalties for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive.
4. The Member States shall immediately communicate to the Commission the texts of all the provisions of national law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.
Article 3
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 25 May 1998.