Safety first: Reconstructing the concept of seaworthiness under the MLC 2006

The concept of seaworthiness has evolved over many years, and in common with similar concepts (for instance, the definition and application of “prudent seamanship”), its precise meaning has varied considerably.

In this context, the Maritime Labour Convention 2006 (MLC 2006) can be regarded as focusing the concept in a manner that is not found elsewhere (whether in treaties or in case law). The implementation of the Convention will change shipowners' obligations to ensure ship safety and constitute an essential element of the standard of seaworthiness. Moreover, it is submitted that the MLC 2006 shifts the centre of emphasis in a manner that is both focused and necessary. These changes are tracked and critically examined in this paper and conclusions are submitted based on the relevant analysis.

1. Introduction

Seaworthiness deals with the fitness and readiness of a ship and its fundamental ability to sail safely to its destination. Its standard extends to all aspects of a ship-including the human

element, physical structure, documentation, cargo worthiness and so on. It is one of the most important concepts in the maritime regulatory regime, and takes many forms.

For instance, Article 94(1) of LOSC requires that flag States are under a categorical duty to exercise jurisdiction and control in relation to “administrative, technical and social matters” over ships that are permitted to fly its flag. Seaworthiness is clearly a crucial element in relation to this duty and this is further set out in the remainder of the Article, particularly in Article 94 (3) and (4).

Similarly, in the commercial context of the carriage of goods by sea, the Hague/Hague–Visby Rules require that the carrier has the obligation to exercise due diligence to make the ship seaworthy both before and at the beginning of the voyage. In marine insurance law, seaworthiness is an implied warranty of the shipowner, the breach of which results in the loss of insurance cover, even though there is no causal relationship between the breach and the loss.

In the law relating to seafarers' employment contract, seafarers are guaranteed of the protection that that originates from the legal implication that the ship on which he is employed to work is, in fact and law, seaworthy. For instance, section 458 of the UK Merchant Shipping Act (MSA) of 1894 has conferred upon seafarers a statutory right to an implied term of seaworthiness, which cannot be displaced or exempted by contractual agreement.

However, seaworthiness is not an absolute concept but a relative one, dependent on the particular context and facts. This is primarily dependent and determined by a variety of different contractual purposes and perspectives. A ship might be seaworthy as between the insurer and the shipowner, though unseaworthy as between shipowner and the shipper of a particular cargo (cargo worthiness). For instance, frozen cargo requires special freezing apparatus, though that does not affect the safety of the ship although it may impair seaworthiness under a marine insurance policy.

This was made clear in The Eurasian Dream, where it was held that “seaworthiness is relative to the nature of the ship, to the particular voyage, or even to the particular stage of the voyage on which the ship is engaged”.

It is in this context that the implementation of MLC 2006 will prove of greatest value, in increasing and giving legal backbone to the standards of due diligence and eventually reduce the chances of unseaworthy ships being sent to the sea. The importance of this to the maritime industry cannot be over-estimated. It should be emphasized, however, that this is not merely a case of adding to the bureaucracy of the regulatory frameworks that already exist (for instance in relation to port inspections and the various Memoranda of Understanding (MoUs)) in relation to Port State Control Regimes.

The introduction of the doctrine of seaworthiness into the MLC 2006 also has the significant commercial effect of improving productivity and efficiency. It will reduce maritime incidents and avoid damage to ship, cargo and people (including seafarers) on board. Also, it will reduce the insurance premiums due to improvement of due diligence standards.

In addition, the implementation of MLC 2006 requires shipowners to maintain proper documentation, which can be used by interested parties to prove their claims. This will contribute to the minimization of exposure to litigation in the event of a maritime incident and has the potential to increase settlement and alternative dispute resolution.

The evidential effect of the enforcement of MLC 2006 will be considerable in establishing the seaworthiness of a ship. It is likely that a finding of compliance with the MLC 2006 will support the necessary evidence required by the shipowner to prove, prima facie, that he has exercised the required due diligence.

This is important as the normal rules of evidence will impose the burden of proof on the shipowner and proof of compliance will support a contention that due diligence has been legally established.

On the other hand, non-compliance with the MLC 2006 requirements is likely to enhance the presumption of fault on the part of the shipowner; a presumption that the shipowner may great difficulty in refuting. Given the above concerns, this paper has a number of objectives:

1.     To review the development of the doctrine of seaworthiness in maritime law, in particular its important role in ensuring safety of ships in the context of the primacy of the human element in assessing seaworthiness of ships;

2.     To examine the implications of implementing the MLC 2006, particularly its role in improving ship safety;

3.     To analyse the extension of the meaning of seaworthiness under the impact of MLC 2006, in particular the changes of standards under the new requirements of MLC 2006;

4.     To assess the criticisms of this extension and an evaluation of the major obstacles that exist in law and practice.

2. Development of the doctrine of seaworthiness in maritimelaw

In marine insurance, seaworthiness had its origins in the common law at the beginning of 19th century, at least. In the case of Christie v. Secretan, the court held that compliance with a requirement of seaworthiness is a condition precedent to the underwriter's liability for a loss. The rationale of an absolute rule of seaworthiness in marine insurance was further expounded in the case of Wedderburn v. Bell. This rationale almost certainly matured around the mid-nineteenth century. In Dixon v. Sadler, the court held:

“… there is an implied warranty that the vessel shall be seaworthy, by which it is meant that she shall in a fit state as to repairs, equipment, and crew, and in all other respect, to encounter the ordinary perils of the voyage insured, at the time of sailing upon it”.

In Quebec Marine Insurance Co. v. Commercial Bank of Canada, the court drew the conclusion that “the warranty of seaworthiness is attached to the contract is a law known to the parties who make contracts of this description”. In Foley v Tabor and Danniels v Harris, the courts further held that the standard of seaworthiness varies according to the different voyages undertaken. In addition, if an adventure is divided into several stages, seaworthiness should be determined according to the circumstances of each stage, at the commencement thereof.

The meaning of seaworthiness has also been regulated by a

number of national laws and conventions. The US Harter Act of 1893 was the first attempt to balance the power between carriers and cargo owners. The Act set a limit on carriers' liability for loss due to negligence or failure to exercise due diligence to make the ship seaworthy.

The significance of this lies in the fact that the principles established in the Harter Act became in many ways the basis of liability in the Hague Rules and then followed by the Hague Visby, Hamburg and Rotterdam Rules.

According to Rule (1) of Article 3 of the Hague Rules and the Hague–Visby Rules, the carrier has the obligations to exercise due diligence before and at the beginning of the voyage. These obligations include:

1)    make the ship seaworthy,

2)    properly man, equip and supply the ship, and

3)   make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

The Hamburg Rules and Rotterdam Rules have not changed these major obligations. However, the carrier's duty to “make the ship seaworthy” is replaced by “make and keep the ship seaworthy” under the Rotterdam Rules.

As a result, the duty is extended to cover the entire voyage.  Despite its important role in maritime law, there is a lack of united definition of seaworthiness. According to section 39(4) of the Marine Insurance Act 1906, “A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured”.

Based on numerous decisions, Tetley described seaworthiness in the following terms:

“Seaworthiness may be defined as the state of a vessel in such a condition, with such equipment, and manned by such a master and crew, that normally the cargo will be loaded, carried, cared for and discharged properly and safely on the contemplated voyage”.

However, there was no specific statutory definition which received universal recognition in the maritime industry. Therefore, maritime courts have to define seaworthiness on a case-by-case basis.

In a number of US and English cases, seaworthiness was defined as the “condition in which a ship should be enabled to encounter whatever perils of the sea a ship of her kind, and laden as she is, may fairly be expected to encounter in performing the voyage concerned”. In Australia, the judge in the case of Bunga formulated the definition of seaworthiness through the application of a number of English and US authorities.

For example, the vessel must be

a.     fit to encounter the ordinary perils of the voyage”;

b.    it must be “in a fit state … to encounter the ordinary perils of the voyage insured”;

c.     the state of fitness required “must depend on the whole nature of the adventure”.

In addition, the definition of seaworthiness has different meanings in different maritime law jurisprudence or in the admiralty courts in different jurisdictions.

For example, a ship considered seaworthy under the UN LOSC might or might not be considered seaworthy under The Hague Visby Rules. In Norway, the Seaworthiness Act, which was replaced by the New Ship Safety Act, defines seaworthiness as follows:

Ø  A ship is considered unseaworthy when, because of defects in hull, equipment, machinery or crewing or due to overloading or deficient loading or other grounds, it is in such a condition, that in consideration of the vessel's trade, the risk to human life associated with going to sea exceeds what is customary.

Even within a particular State's admiralty and maritime law, the definition of seaworthiness may be explained differently. For instance, in U.S. practice, the seaworthiness standard for maritime tort claims is different from that in cargo damage claims.

Nevertheless, and regardless of this divergence, it has been generally accepted that the meaning of seaworthiness should not be limited to merely the physical facilities of the vessel.

There are a number of general aspects in which a vessel must be considered to assess its seaworthiness. Soyer examined the main categories of matters to which seaworthiness of a ship should extend, which is described in the below table.

The above Table recognizes the human factor as one aspect of seaworthiness. However, the attention that has been paid to seafarers is far less than that on ship's structure (the so-called iron and steel factors), equipment and supplies. In practice, if a ship has a sufficient number of seafarers with valid certificates, the ship will be normally deemed properly staffed. However, in many cases, a sufficient number of seafarers do not necessarily mean the ship is adequately manned; a seafarer with valid certificates may not have the necessary skills and competency. In addition, the employment conditions on board also significantly influences seafarers' performance, which eventually affects the ship's seaworthiness.

This is an issue which is expressly dealt with in LOSC 1982, Article 94, dealing with flag state duties. This provides that the essential measures to be taken include:

è Under Article 94 (3) it is expressly stated that: Every State take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

è the manning of ships, labor conditions and the training of crews, taking into account the applicable international instruments;

è While the requirement of Article 94(4) is that: … each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship.

Since the middle of 1990 s, the human element in the maritime industry has drawn much more attention than ever before. In 1993 and 2002, the IMO adopted the International Safety Management Code (ISM Code) and the International Ship and Port Facility Security Code (ISPS Code) respectively.

Both these Codes have increased international carriers' responsibility in respect of seafarers' training and ship management. However, there are major disagreements regarding whether the two Codes have changed the operation of the principles of seaworthiness in maritime law. One view is that these Codes, counter-productively, “assisted the owners in proving that they had exercised due diligence”.

Opponents feared that “a too severe burden would be place on the carrier” if these Codes were included in the standard of seaworthiness.

3. The implication of introducing the doctrine of seaworthiness in the MLC 2006

The 94th International Labour Conference adopted the MLC 2006 at a maritime session in Geneva on 23 February 2006, with a Preamble stating its desire:

… to create a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour Conventions, in particular.

The purpose of this Convention was to secure decent work for seafarers and ensure fair competition among employers. The Convention covers various aspects of labour conditions, crewing and social matters on ships. The MLC 2006 consolidates the major Conventions and Recommendations adopted by the ILO throughout its history of protecting and safeguarding labour, locating it firmly in a maritime context. More important, it also takes into consideration the various measures taken by the International Maritime Organisation (IMO), such as:

ü  the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS),

ü  the Convention on the International Regulation for Preventing Collisions at Sea, 1972, as amended (COLREG), and

ü  the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW).

The express intention, therefore, is that the implementation of the MLC 2006 will operate ‘co-operatively’ with the various IMO instruments in ensuring that all ships maintain proper standards in terms of maintenance, crew competence and safety management; these all

constitute an important aspect of seaworthiness.

The MLC 2006 is organised into five Titles and 16 articles (Articles I–XVI). The first Title is “Minimum Requirements for Seafarers to Work on a Ship”. It sets up a series of minimum requirements, for instance, the minimum age for seafarers to be employed aboard, the obligation of each seafarer to have the relevant qualifications, training certificates, appropriate medical certificate and the appropriate procedures of recruitment and placement.

The second Title – “Conditions of Employment” – is concerned primarily with terms of employment, including wages, working hours and annual leave.

The third Title is “Accommodation, Recreational Facilities, Food and Catering”. To ensure seafarers' lives aboard, specific standards are stipulated in this section, such as the size and conditions of the living areas on board a ship.

The fourth Title is concerned with “Health Protection, Medical Care, Welfare and Social Security Protection”. “Compliance and Enforcement” is the last Title, which regulates the implementation and enforcement of the principles and rights set out in the Convention.

The responsibilities of flag States, port States and labour supply States are specified to improve and reintroduce effective state enforcement of the Convention.

Moreover, a special certificate compliance system and inspection system is mandated to

ensure that each Member's responsibility to be fully implemented and enforced.

As examined above, the Convention introduces a series of new requirements that are different in both form and character from the standards recognized before. Although some of these requirements are not expressly set out directly from the perspective of safety, they constitute an important supplement to the maritime regulatory regime.

First, the safety of the ship, cargo and environment is inseparable from the employment and labour conditions on board. A ship with a high level of good employment conditions tends to maintain a high standard of safety operation. Second, seafarers play a vital role in seaworthiness of any vessel. It has been generally accepted that a good master may save a poor ship, and a poor master may lose a good one (Soyer, 2006: 64).

Therefore, many shipowners are competing for qualified seafaring talent, which is always flowing to ships with better treatment and conditions. As a result, these ships are generally safer than those with poor labour conditions and inferior treatment of seafarers.

Third, as the MLC 2006 has entered into force, the standard of seaworthiness with which a ship must comply is now to be tested against the requirements of the Convention in combination with other requirements. If a shipowner fails to observe the requirements in the Convention, although it has complied with other requirements, it would still be difficult for the owner to prove that he has exercised due diligence to make the ship seaworthy.

It has to be noted, however, that no judicial view has yet been given on the potential impact of MLC 2006 on the standard of seaworthiness.

Nevertheless, there is a clear implication that the Convention is significantly relevant to many inquiries into matters of seaworthiness.

For example, preventing seafarer fatigue is an important subject “linked to ensuring ship safety and avoiding the risk of maritime incidents”. Excessive hours of work and inadequate rest result in seafarer fatigue, which is a major factor impairing the seaworthiness of a ship. In Title 2 “Conditions of employment”, MLC 2006 introduces a “working time regulation” to ensure that seafarers have maximum hours of work or minimum hours of rest over given periods.

Every ship shall maintain regulated shipboard working arrangements to ensure seafarers have sufficient period of rest. This is similar in both character and scope to the EU Working Time Directive.

In addition, records of such arrangements shall be maintained to allow monitoring of compliance. These requirements constitute an important part of the shipowner's responsibility of “due diligence”.

4. Extension of the meaning of seaworthiness under the MLC 2006

It has been generally recognized that the human element plays a crucial role in the safety of ship operation; it could not be otherwise. Since the middle of 1990s, the maritime industry has paid increasing attention to the human element in all its multifarious aspects, including seafarers' training, competency and management, as well as their labour and social rights.

Historically, this has long been seen as an essential aspect of the work of the work of the ILO. The ILO has adopted a large number of maritime labour Conventions and related recommendations to regulate seafarers' labour and social rights. When MLC 2006 was adopted, most of these documents were consolidated in the Convention.

In addition, this consolidation also took into consideration a variety of IMO and other United Nations instruments. As such, since its entry into force in August 2013, the Convention has had a significant impact on the maritime industry and its various stakeholders.

Importantly, its regulatory impact will be felt far beyond the range of those states that have ratified the MLC 2006.

For example, in China, many ports are taking various measures to attract more vessels calling. Since 2013, the Port of Shanghai, as the largest container port in the world, has intended to restrict the calling of ships using high sulphur fuel oil (HSFO) to reduce the emission of CO2.

However, considering the possibility that the restriction may compel many shipowners to choose other ports of call, the regulation came into force only in January 2018, until then the policy was that, ships were only ‘encouraged’ to use low sulphur fuel oil when entering Shanghai port.

As the MLC 2006 has become a mandatory element in the maritime regulatory system, the standard of seaworthiness with which a vessel must comply should be tested against the requirements of the Convention. As mentioned above, seaworthiness is a relative term and its meaning extends to all aspects of a ship.

This not only includes the physical condition of a vessel (the iron and steel factors) but also involves other complementary factors, such as competency of crew, adequacy of provision and equipment and compliance with international standards.

MLC 2006 prescribes a series of obligations for shipowners, including providing a safe workplace, decent working and living conditions and health protection. Compliance with these obligations is not only relevant to seafarers' decent employment and wellbeing, but also to the seaworthiness of the ship.

To start with, in order to be considered as seaworthy, the ship must carry on board all certificates and documents necessary for the voyage.

For example, in The Madeleine case and re-affirmed in a number of cases such as The Derby, the ship was held to be unseaworthy because the documentation for the voyage was considered to be insufficient.

The national law of the ship's flag states generally requires these certificates and documents. Additionally, however, as part of the internationally recognized port inspection

regime, it may also be demanded by a port state pursuant to that port state's laws, regulations and lawful administrative practices. According to Regulation 5.1.3 of the Convention, ships engaged in international voyage shall “carry and maintain a maritime labour certificate (MLC)”.

In addition, Regulation 5.1.4 of the Convention requires ships “to carry and maintain a declaration of maritime labour compliance” (DMLC).

Therefore, if a ship commences a voyage without a valid MLC and DMLC as required, a prima facie assumption arises that it is an unseaworthy vessel and should be classed as such, with all the subsequent legal and industry-wide connotations of such a classification.

However, it is clear that mere ‘possession’ of these documents is only a preliminary factor. There may be many ships with the required MLC and DMLC but still be in violation of the requirements under the MLC 2006. On the one hand, some flag states would lower its labour standards and issue certificates to substandard ships, by which to gain benefit through greater registrations.

This is both regrettable as well as a likely scenario on the basis of current flag state practice despite the increased efforts of the IMO Sub-Committee on Flag State Implementation. At the same time, full compliance with the Convention will account for a significant increase in operational costs. It is reasonable to assume that some irresponsible shipowners (even if in a minority) may not go on to comply with the detailed requirements of MLC 2006 once these documents (the MLC and the DMLC) have been obtained.

Therefore, although a ship is duly certified, she would still be considered as unseaworthy if there is any further violation of the Convention, regardless as to the characterization of this violation as extreme or otherwise.  

No matter whether the violation will endanger the ship, one major reason is that the ship might be detained or even arrested at a port of call because of her defects.

For instance, in The Faith, the crew were poorly supplied and underpaid. In addition, there were a large number of unsatisfied creditors who could apply for the seizure of the ship. Taking these factors into account, the judge held the ship to be unseaworthy. As the judgement read.

“If the owner leaves the vessel unprotected against the foreseeable seizure by creditors, she is just as liable to be stopped short of her destination as if she were left unprotected against the ordinary perils of the navigation”.

Moreover, it will not be an effective opting-out for a ship registered in a non-ratifying Convention flag state, in order to avoid the regulatory regime of the Convention. Such a ship, of course, has no legal obligation to comply with the Convention and to carry on board the MLC and DMLC.

According to Article V-7 of the Convention, the so-called “no more favorable treatment” clause, the vessel does not “receive more favorable treatment than the ships that fly the flag of any State that has ratified it”. However, when the ship enters a foreign port of a state that has ratified the Convention, she would still need to observe the whole corpus of that State's national laws and regulations, which would now incorporate the requirements of the Convention. If a Port State Control (PSC) inspector finds any extreme violation of the Convention, the vessel can be detained.

Therefore, the vessel would be classed as unseaworthy due to the shipowner putting her at sea with a risk of detention.

Furthermore, good employment and labor conditions are also essential factors contributing to ship safety. Seafarers' sufficiency, efficiency and competency are vital in maintaining the safety of a vessel, and this has been widely recognized in the maritime industry.

However, stress, fatigue and similar complaints can lead to reduced performance which in turn brings about environmental damage, loss of life and property. On the other hand, good treatment and labor relations serve as essential motivating factors in increasing efficiency and diligence, and eventually improve safety operations and protection of ship and cargo. In this regard, if a shipowner fails to comply with the requirements of the Convention and provide decent working and living conditions on board, it is fair to consider that the shipowner has not exercised due diligence to make the ship seaworthy.

Therefore, under the regime of MLC 2006, the seaworthiness of a ship can be extended in a number of aspects.

5. Criticism of extending the meaning of seaworthiness

However, the change with regard to the standard of seaworthiness might find various opponents as well. The major critique is that it may have the effect of placing too severe a burden on the shipowner. The meaning of seaworthiness has always been interpreted in a narrow sense. In the Aquacharm, the Court of Appeal held that “the word ‘seaworthy’ in the Hague Rules is used in its ordinary meaning, and not in any extended or unnatural meaning”. Shaw L.J. reaffirmed in the judgment that “any artificial extension of the concept of seaworthiness” would be unacceptable.

In addition, the Court explained, “seaworthiness connotes an inherent quality” and “external factors cannot influence or affect the innate attribute of seaworthiness”.

Also, although the MLC 2006 has entered into force, making it a mandatory principle of international public law for all ships within its application, it has no mandatory effect under private law. It is recognized that no law requires a shipowner to provide a perfect or an immaculate vessel. If a ship is found to have violated its provisions, there may be a fine or even arrest and detention.

However, it is disputable to compulsorily extend these obligations to private contract, such as contract of carriage of goods by sea, charterparty or marine insurance. When the International Safety Management (ISM) Code and the International Ship and Port Facility Security (ISPS) Code came into force, many commentators argued that these new requirements should not extend the concept of seaworthiness under the Hague–Visby Rules and increase shipowner's obligations of seaworthiness.

Furthermore, introducing the requirements of MLC 2006 would conflict with the existing law of seaworthiness under the carriage of goods by sea, in particular the period of exercising due diligence.

For example, according to The Hague or Hague–Visby Rules, the carrier shall exercise due diligence before and at the beginning of the voyage. However, according to paragraph 16 of Standard A 5.1.3 of MLC 2006, “a maritime labor certificate shall be withdrawn, if there is evidence that the ship concerned does not comply with the requirements of the Convention”.

Therefore, the shipowner shall maintain continuous compliance with the requirements of the Convention, which means there is a conflict between these two legal regulatory systems. However, the conflict could be resolved if Rotterdam Rules enter into force. According to Article 14 of Rotterdam Rules, “the carrier is bound before, at the beginning of, and during the voyage by sea to exercise due diligence to make and keep the ship seaworthy”.

In addition, it is claimed that the introduction of MLC 2006 into the concept of seaworthiness might result in unfair competition between different countries. There are commentators who claim that MLC 2006 has a number of weaknesses that may impair its

effective implementation.

Some countries might be strict in enforcing the Convention while other countries might not because of poor resources or simply due to lack cooperation. Therefore, those states who take their Convention obligations seriously may increase the standard of seaworthiness and eventually increase shipowners' obligations. On the contrary, some countries who do not wish to do so might be tempted to lower their standards in order to attract more tonnage registration.

6. Conclusion

The entry into force of MLC 2006 should prove to have a significant impact on the doctrine of seaworthiness. Under the new requirements of MLC 2006, the meaning of seaworthiness of a ship is given a firmer foundation and is also extended in a number of aspects. In this context, it is submitted that the MLC 2006 should be viewed as a re-calibration of the concept of seaworthiness and as an essential part of an evolutionary process that integrates the safety of seafarers with commercial necessity.

As a part of this process, the requirements under the MLC 2006 are minimum standards to be observed by any responsible shipowner. In addition, observation of these standards plays an essential contribution in improving the safety and efficiency of ship operations. The coming into force of the MLC 2006 and the incorporation of standards of seaworthiness is critical to this process. It is also submitted that the concept of seaworthiness, with all its accompanying ramifications, represents a new epoch of ship safety and has the capacity to permeate all aspects of safety and efficiency in the shipping industry.

The challenge is to ensure that the Convention moves from the rarefied heights of international law and translates into the everyday practices of the shipping industry. The truth is that legislation alone does not change anything. It is only when the shipping itself industry acts proactively that the compass dial shifts from maximizing profits towards ensuring seaworthiness and the safety of seafarers.

It is worthwhile to conclude by repeating the classic statement of Cresswell J in The Eurasian Dream that “seaworthiness must be judged by the standards and practices of the industry at the relevant time”. These standards and practices must now include the provisions of the MLC 2006.