Malaysian Shipping Notice MSN 4/2022 - Crew Change Instructions (Amendments)

The subject-matter of the ninth article in this series is Malaysian Shipping Notice MSN 04/2022 titled ‘Crew Change Instructions (Amendments)’, issued on 25 August 2022, see https://www.marine.gov.my/jlm/admin/assets/uploads/files/notis/c0d12-msn042022.pdf (accessed on 5 October 2022). MSN 04/2022 contains the latest crew change procedures reflected in the International Maritime Organisation (IMO) MSC.1/Circ.1636 and International Labour Organization (ILO) Circular Letter GB.340/Resolution (Rev.2). MSN04/2022 officially revoked MSN 11/2021 issued last year on 6 December 2021.

MSN 04/2022 contains three annexes. Annex A has updated general instructions and while Annex B has a flow chart of the requirements for sign-on. Annex C has a similar flow chart, but this time, for sign-off procedures instead.

Annex A is divided into 6 distinct headings:

[1] General;

[2] Protocol on Logistics and Movement of Crew;

[3] Crew Change (Sign-On and Sign-Off);

[4] Crew Change Application;

[5] General Shipping Matters; and

[6] Inquiries.

Each of these headings will be looked at one by one. Let us examine the first three provisions under the first ‘General’ heading. Permission is given to all ships to carry out crew change activities (i.e. sign-on and sign-off) at any port in Malaysia. There are no restrictions on vessels flagged in any particular jurisdiction, as long as the strict procedures contained in MSN 04/2022 are complied with (see paragraph 1 of Annex A). The crew change procedure can be carried out regardless of whether the ship is involved in any cargo operation (see paragraph 2 of Annex A). The procedures in Annex A apply to seafarers and shipping companies only. Persons who do not fall in this category (non-seafarers), for example supernumeraries, industrial workers and third parties, must instead follow the requirements set by the Ministry of Health (“MOH”) and other related agencies (see paragraph 3 of Annex A).

Regarding the second heading on ‘Protocol on Logistics and Movement of Crew’, it is provided that if any crew member is found to be COVID-19 positive, it is mandatory for the crew or his/her shipping company to notify MOH through the Port Health Office. This notification must be made immediately after obtaining the screening test results (see paragraph 4 of Annex A). All MOH instructions must be followed to the letter and a quarantine process commences (see paragraphs 5 and 6 of Annex A). Pursuant to paragraph 5, the crew member is prohibited from:

(a) leaving the hotel/residence;

(b) returning to his residence;

(d) moving from/to any port in the country;

(e) transiting from/to any other area in Malaysia;

(f) leaving the screening test area;

(g) embarking/disembarking from any ships.

As for the costs that will inevitably arise because of all these measures, the burden has been placed on the employers of the crew. Shipping companies must bear all costs flowing from the crew change process. The regulatory regime makes it clear that this includes, but is not limited to quarantine procedures, COVID-19 tests, follow-up treatment, crew vaccination, and “all aspects of crew logistics in complying with (sic) these procedures”. This is a fairly wide formulation and it is not clear how far the ripples from the omnibus provision can spread. It could be like a domino tiles demonstration that goes on and on.

For the third heading ‘Crew Change, Sign-on and Sign-off’, the first procedure crews must comply with when they arrive in Malaysia is to download MySejahtera into their smartphones. This is an app well known to Malaysians as it has been used for many health-related initiatives during the pandemic. In particular, the app functions to monitor the risk of COVID-19 (see paragraph 8). Sign-on crews, are expected to follow the procedures in Annex B. Whilst sign-off crews must follow the procedures in Annex C.

‘Crew Change Application’ is the fourth heading. Paragraph 11 provides for just one thing. At least 3 days before the arrival of the crew and/or ship in Malaysia, a crew change application must be made to the Marine Department, Malaysia.

For the fifth heading, ‘General Shipping Matters’, paragraph 12 starts by stipulating that all ships are allowed to carry out medical evacuation (MEDEVAC) and crew vaccination at any ports in Malaysia. Note that paragraph 12 does not make a distinction between Federal or State ports. If crew test positive for COVID-19, but are asymptomatic, paragraph 13 states they will be allowed for shore leave. However, there is a qualification. Such asymptomatic crew require approval from both the Ministry of Health (MOH), and the Immigration Department of Malaysia. By contrast, if crew remaining on board test positive for COVID-19 but are asymptomatic, cargo operations on board the ship can continue. However, MOH requirements must be followed (see paragraph 14). The common theme for paragraphs 12 -14 is that life and operations largely go on as usual for asymptomatic crew, subject of course to some MOH conditions. There are no other further restrictions (see paragraph 15).

The sixth heading ‘Inquiries’ starts with an administrative designation. Under paragraph 20, all applications and inquiries relating to crew change are to be handed to the nearest Marine Department Office. Paragraph 21 concludes by clarifying that a vetting process will be carried out by the Marine Department for all crew changes applications prior to final approval. The process will take into account the MOH requirements.

In Annex B, the ‘Sign-On Procedures’ are as follows:

[1] Make a sign-on application;

[2] Arrival of seafarer at ‘International Entry Point’ (POE) (for crew arriving from an international destination), or a seafarer is ready to sign-on (for crew resident in Malaysia);

[3] If the seafarer is asymptomatic, he/she will be allowed to sign-on to the ship;

[4] If the seafarer is symptomatic, he/she will have to take an RTK-Ag Test;

[5] If the test is negative, he/she will be allowed to sign-on the ship;

[6] But if the test is positive, he/she will have to follow the required MOH procedures.

For ‘Sign-Off Procedure’, Annex C provides the following:

[1] Make a sign-off application;

[2] If asymptomatic, he/she is allowed to return home, or the country of origin;

[3] If symptomatic, he/she will need to take an RTK-Ag Test;

[4] If the test result is negative, he/she is allowed to return home, or to the country of origin;

[5] If the test is positive, he/she will have to follow the required MOH procedures.

In conclusion, the procedures for crew change are fairly simple and consistent, whether it be for sign-on, or for sign-off. Malaysia permits crew change at all its ports, whether State or Federal. The only applicable conditions are MOH conditions, which the crew are required to follow, just like any other person in Malaysia. The amendments are therefore a reflection that Malaysia is well into the endemic phase of the COVID-19 disease.

Thank you for reading IMSML Website Article 9/2022

Stay tuned for the next IMSML Website Article 10/2022:

Judgment in Default obtained by a company providing shipping agency services in Pak Asia Shipping & Logistics Sdn Bhd vs Cosco Shipping Lines (Malaysia) Sdn Bhd [2022] MLJU 1741 (High Court, Shah Alam) per Rozi Bainon PK

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Head of the Centre for Advocacy and Dispute Resolution

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

13 October 2022

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my

Edited by: Trishelea Ann Sandosam, Vice President IMSML.