PORT STATE CONTROL
SECOND EDITION
PORT STATE CONTROL
SECOND EDITION
BY
DR Z. OYA ÖZÇAYIR
Maritime Law Consultant
Member of IMO Roster of Experts and Consultants
FOREWORD
BY
MR E. E. MITROPOULOS
Secretary-General
International Maritime Organization
First edition published 2001 by Informa Professional
a division of Informa Publishing Group Ltd
Second edition 2004
Published 2015
by Informa Law from Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Informa Law from Routledge
711 Third Avenue, New York, NY, 10017, USA
Informa Law is an imprint of the Taylor & Francis Group, an informa business
© Dr Z. Oya Özçayır, 2001, 2004
All rights reserved. No part of this book may be reprinted or reproduced or utilised in
any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Whilst every effort has been made to ensure that the information contained in this work is
correct, neither the authors nor Informa Law from Routledge can accept any responsibility
for any errors or omissions or for any consequences arising therefrom.
Product or corporate names may be trademarks or registered trademarks and are used only
for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
ISBN-13: 978-1-843-11328-7 (hbk)
Text set in 10/12pt Plantin
by MFK Mendip, Frome, Somerset
Dedication
To my family
Foreword
Shipping is perhaps the most international of industries and is unique in that its prime
assets, the ships themselves, move between countries and continents and, therefore,
between different legal jurisdictions: hence the need for an internationally agreed
regulatory framework to establish universally acceptable standards for maritime safety,
security and environmental protection.
It is through IMO that those standards are developed and adopted and, over the years,
the work of the Organization in this respect has helped bring about measurable advances
in all of the areas they cover. But, even though every new standard adopted represents a
step forward, it is virtually worthless without proper implementation. While the prime
responsibility for implementation of agreed standards rests with flag States and shipping
companies owning ships engaged in international trade, the maritime world has, for
many years, recognized the importance and the value of port State control as a means of
supporting and providing back-up to the role of flag States.
Many of IMO’s most important technical conventions contain provisions for ships to
be inspected when they visit foreign ports to ensure that they meet the requirements of
the conventions the flag State is party to, and IMO has encouraged the establishment of
regional port State control organizations and agreements as a means of ensuring
compliance and, if necessary, tightening the net around sub-standard shipping and
reducing the trading opportunities for sub-standard operators.
This book is a comprehensive publication dealing with the full implications and
regulations of port State control. It provides a detailed analysis of the legal framework
relating to port State control, including the most recent developments in this area. It
covers not only the regional agreements on port State control and the EU legislation on
this subject but also the background of the port State control process, its implications in
practice and its effect on the ISM Code and the classification societies.
Since the first edition of the volume was published in 2001, the regulatory, practical
and political backgrounds against which port State control operates have changed
considerably and a great deal of work has gone into ensuring that this latest edition
accurately reflects the shipping world as it is today.
Among the new topics covered in this edition are amendments to the various regional
port State control agreements; the addition of an appeal procedure in Paris MOU
Member States; amendments to the EU Directive on port State control; measures taken
following the Prestige incident; the implications of the new IMO security measures,
including the ISPS Code; an update to the Equasis system and an evaluation of progress
with the Qualship regime under the US port State control system. In addition to
covering all these major changes, the book also includes updated appendices and tables
on all relevant legislation.
vii
FOREWORD
Given the speed and implications of recent developments, all in the maritime
community need to be aware of what port State control is and how it can effect their
operations. This book’s thorough coverage of these issues ensures that it will provide a
valuable source of reference.
July 2004
Mr E. E. Mitropoulos
Secretary-General
International Maritime
Organization
viii
Preface
The writing of the first edition of this book started some time before the Erika incident
which greatly affected the writing process. While the maritime community was trying to
prevent similar incidents, yet another oil pollution incident, the Prestige, took place in
European waters.
The preparation for the second edition started in the light of these incidents and, more
importantly, of a major tragic event, September 11, which affected all aspects of
commercial life including the maritime world. This incident caused a big legislative
overhaul in maritime safety and security. In November 2002, the US passed a domestic
legislation entitled the Maritime Security Transportation Act of 2002 (MTSA) and in
December 2002, the International Ship and Port Facility Security Code was adopted by
IMO.
The proposed changes following the Erika incident started to take place even more
swiftly after the Prestige and September 11. The most comprehensive amendments to
Port State Control Directive 95/21/EC were made following the Erika incident. In 2002,
new amendments were adopted to bring the Paris MOU in line with the latest changes of
the EC Directive on port State control.
The aim of the second edition of Port State Control is to provide a detailed cover of the
changes that took place since the first edition. The main framework of the first edition of
the book has been kept and the necessary amendments and changes have been made in
the relevant chapters.
Introductory chapters deal with the background of port State control; the role of IMO,
port State jurisdiction and IMO guidelines on port State control. The Paris MOU, still
being the main framework for the other regional agreements, has been discussed in detail
with new amendments, including the review and appeal procedure. Other regional
agreements have been explained briefly.
UK port State control has been examined as an example with changes made in line
with the EC Directive on port State control. US port State control regime has been
discussed in detail with the major amendments made following September 11.
The EC Directive on port State control covers the Erika I and II measures taken
following the Prestige incident. The effects of the Erika incident have been examined with
the effects of a later incident, the Prestige.
The International Safety Management (ISM) Code and the classification societies
have been studied in relation to port State control including the relevant changes.
The last chapter looks at the practical effects of the port State control system.
July 2004
Z. Oya Özçayır
ix
Acknowledgements
I would like to say thank you to all those who provided valuable information during the
first edition of this book.
I would also like to thank:
IMO public information office staff Lee Adamson and Natasha Brown for answering all
my queries;
Carien Droppers, Assistant Secretary, Paris MOU on port State control for patiently
answering all my questions on the appeal and review procedure of Paris MOU;
Louis Baumard, External Communications Officer, European Maritime Safety Agency
(EMSA) for providing detailed information about the application of EU legislation
in port State control.
My thanks to Victoria Ophield, my editor, for giving me enough time to go through the
great number of changes that took place in the port State control area since the first
edition.
I would like to thank Lee Adamson, my proofreader, for his meticulous reading of the
manuscript of the book.
My thanks to Professor Robert Merkin whose support has always been encouraging.
My special thanks to Dr Faramarz Amiri for his never-ending helpfulness.
xi
Table of Contents
Page
vii
ix
xi
xxix
xxxvii
xli
xlv
xlvii
li
Foreword
Preface
Acknowledgements
Bibliography
Table of Abbreviations
Table of Cases
Table of EC Legislation
Table of National Legislation
Table of International Conventions
Para.
A.1
INTRODUCTION
1
2
FLAG STATE CONTROL: BACKGROUND
1A
Introduction
1B
The concept of vessel nationality
1C
Registration
1D
The concept of “genuine link”
1E
The United Nations Convention on Conditions for Registration of Ships
(1986 UN Convention)
1F
Maritime flag
1G
Flag State control
1H
Flags of convenience
1I
The creation of open registries
1J
Problems arising from flags of convenience
1K
Labour
1L
Economic considerations
1M Has the flags of convenience problem been solved?
THE
2A
2B
2C
INTERNATIONAL MARITIME ORGANIZATION (IMO)
Introduction
Establishment of the IMO
Structure of the IMO
2C.1
The Assembly
2C.1(i)
Conferences approved
2C.2
The Council
2C.3
Maritime Safety Committee (MSC)
2C.4
Legal Committee
xiii
1.1
1.1
1.2
1.6
1.9
1.23
1.28
1.31
1.35
1.38
1.41
1.44
1.45
1.46
2.1
2.1
2.4
2.10
2.11
2.13
2.14
2.15
2.16
TABLE OF CONTENTS
2D
2E
2F
2G
3
4
2C.5
Marine Environment and Protection Committee (MEPC)
2C.6
Technical Co-operation Committee
2C.7
Facilitation Committee
2C.8
Secretariat
Functions of the IMO
Tacit acceptance
The role of the IMO
2F.1
Adoption of Conventions
2F.2
Entry into force
2F.3
Implementation
The work of the subcommittee on flag State implementation
2G.1
Code for implementation of IMO instruments
PORT STATE JURISDICTION
3A
Jurisdiction in general terms
3B
Flag State jurisdiction
3C
Coastal State jurisdiction
3C.1
Internal waters
3C.2
Territorial sea
3C.3
The contiguous zone
3C.4
Exclusive economic zone
3C.5
High seas
3D
Port State jurisdiction
3E
Foreign vessels’ access to ports and conditions of entry
3F
General terms
3G
The UNCLOS provisions in connection with port State jurisdiction
3H
“Applicable international rules and standards”
3I
Application of UNCLOS provisions in port State jurisdiction cases
3I.1
William Rodman Sellers v. Maritime Safety Inspector
3I.2
The New Zealand Maritime Transport Act 1994 and international
law
2.17
2.18
2.19
2.20
2.21
2.24
2.28
2.30
2.32
2.35
2.40
2.47
3.1
3.1
3.6
3.11
3.12
3.16
3.18
3.20
3.21
3.22
3.27
3.30
3.32
3.38
3.40
3.40
3.47
INTRODUCTION TO PORT STATE CONTROL AND IMO
GUIDELINES
4.1
4A
The safety net
4.1
4B
Control provisions in IMO Conventions
4.4
4C
Relevant IMO Conventions and ILO instruments
4.6
4C.1
International Convention for the Safety of Life at Sea 1974 (SOLAS 74)
4.7
4C.1(i)
The ISPS Code
4.9
Requirements for companies and ships
4.10
Port facility
4.11
Information to be made available from port facilities to
ships and companies
4.12
Requirements for ships entering a port of another
contracting government (port State control inspections) 4.13
Control of ships in port
4.14
Ships intending to enter a port of another contracting
government
4.15
Additional provisions
4.17
“Clear grounds”
4.18
xiv
TABLE OF CONTENTS
4C.2
4C.3
4D
4E
4F
5
International Convention on Load Lines 1966 (LL 66)
International Convention for the Prevention of Pollution from
Ships, as modified by the Protocol of 1978 relating thereto
(MARPOL 73/78)
4C.4
International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers 1978 (STCW 1978)
4C.5
International Convention on Tonnage Measurement of Ships 1969
(Tonnage 69)
ILO instruments
4D.1
ILO Convention No.147
Procedures for port State control (IMO Guidelines)
4E.1
Provision for port State control
4E.2
Definitions
4E.3
Port State inspections
4E.3(i)
General
4E.3(ii)
Inspections
4E.3(iii) List of certificates and documents that, where relevant,
should be checked during the inspection
4E.3(iv) Clear grounds
4E.4
More detailed inspection
4E.4(i)
General
4E.4(ii)
Clear grounds
4E.5
Port State Control Officers (PSCOs)
4E.5(i)
Professional profile
4E.5(ii)
Qualification and training requirements
4E.5(iii) General procedural guidelines for PSCOs
4E.5(iv) Identification of substandard ship
4E.5(v)
Suspension of inspection
4E.5(vi) Guidelines for the detention of ships
Developments in port State control
4F.1
Measures to improve port State control procedures
4F.2
Guidelines for ISPS Code
4F.3
Marking of IMO number on ship’s hull
4F.4
Unique IDs for shipowning and ship management companies
4F.5
Reporting procedures on port State control detentions and analysis
and evaluation of reports
4F.6
Review/appeal procedure
4F.7
Guidelines for inspection of ships’ anti-fouling systems under the
2001 AFS Convention
4F.8
PSC officer training for bulk carriers
4F.9
Ship recycling—related matters
4F.10 Work programme and agenda for FSI 12
4.19
4.20
4.21
4.22
4.23
4.23
4.24
4.25
4.26
4.27
4.27
4.28
4.29
4.30
4.31
4.31
4.32
4.33
4.33
4.34
4.35
4.38
4.39
4.40
4.42
4.42
4.43
4.44
4.45
4.46
4.48
4.49
4.50
4.51
4.52
REGIONAL PORT STATE CONTROL AGREEMENTS
5.1
5A
The Paris Memorandum of Understanding on Port State Control 1982 (Paris
MOU)
5.1
5A.1
Introduction
5.1
5A.2
Observer status
5.4
5A.3
Basic principles
5.5
5A.4
Amendments to Paris MOU
5.6
5A.4(i)
Harmonized action on ship security to start on
January 1 2004
5.7
xv
TABLE OF CONTENTS
5A.5
5A.6
5A.7
5A.8
5A.9
5A.10
5A.11
Target rate
Structure
Relevant instruments
5A.7(i)
ILO Convention No.147 and ILO Protocol 1996
Port State Control Officer (PSCO)
Port State control procedures
5A.9(i)
General information
5A.9(ii)
No more favourable treatment principle
5A.9(iii) Ships below Convention size
5A.9(iv) Minimum manning standards and certification
5A.9(v)
Operational violations
5A.9(vi) Priority inspections
5A.9(vii) Targeting factors for priority inspections
5A.9(viii) Inspections
Initial inspection
Grounds for more detailed inspection
Mandatory inspection
Mandatory expanded inspections
Suspension of an inspection
Detention
5A.10(i) Detainable deficiencies
Areas under SOLAS 74
Areas under the IBC Code
Areas under the IGC Code
Areas under LL 66
Areas under Annex to MARPOL 73/78
Areas under Annex II to MARPOL 73/78
Areas under Annex V to MARPOL 73/78
Areas under STCW 78
Areas under ILO Conventions
Areas which may not warrant a detention, but where
e.g. cargo operations have to be suspended
5A.10(ii) Accidental damage
5A.10(iii) Remedy in the nearest appropriate port
Appeals process
5A.11(i) Appeal procedures
Belgium
Canada
Croatia
Denmark
Finland
France
Germany
Greece
Iceland
Ireland
Italy
The Netherlands
Norway
Poland
Portugal
xvi
5.8
5.9
5.12
5.13
5.14
5.15
5.15
5.16
5.17
5.18
5.19
5.20
5.21
5.26
5.26
5.29
5.30
5.31
5.38
5.39
5.43
5.44
5.45
5.46
5.47
5.48
5.49
5.50
5.51
5.52
5.53
5.54
5.55
5.56
5.57
5.58
5.59
5.60
5.61
5.62
5.63
5.64
5.65
5.66
5.67
5.68
5.69
5.70
5.71
5.72
TABLE OF CONTENTS
5B
5C
Russian Federation
5.73
Slovenia
5.74
Spain
5.75
Sweden
5.76
United Kingdom
5.77
5A.11(ii) Appeals in practice
5.80
5A.12 The Paris MOU review panel
5.81
5A.13 Banned ships
5.84
5A.13(i) ISM Certificates
5.85
5A.13(ii) Refusal of access notices
5.86
Lifting a refusal of access order
5.87
5A.13(iii) Other reasons
5.88
5A.14 The International Safety Management (ISM) Code
5.90
5A.14(i) Concentrated inspection campaigns
5.93
5A.15 STCW
5.99
5A.16 Codes for actions taken
5.100
5A.17 Detention information
5.101
5A.18 Examples of detention cases under the Paris MOU
5.105
5A.18(i) The Binar 4
5.105
5A.18(ii) The Sammarina 5
5.106
5A.18(iii) The Laila Queen
5.107
5A.18(iv) The Ramaz
5.108
5A.18(v) The Isparta
5.109
5A.18(vi) The Shiva
5.110
5A.18(vii) The Nunki
5.111
5A.18(viii) The Viidu
5.112
5A.18(ix) The Seerose
5.113
5A.18(x) The Estela
5.114
5A.18(xi) The M Trans I
5.115
5A.19 Paris MOU on the internet
5.116
The Acuerdo de Viña del Mar Agreement on Port State Control 1992 (Latin
American Agreement)
5.117
5B.1
Introduction
5.117
5B.2
Member States
5.118
5B.3
Basic principles
5.119
5B.4
Structure
5.120
5B.5
Relevant instruments
5.121
5B.6
Target rate
5.122
5B.7
Ship selection criteria
5.123
5B.8
Inspection
5.125
5B.9
Grounds for a more detailed inspection
5.126
5B.10 No more favourable treatment
5.127
5B.11 Ships below Convention size
5.128
5B.12 Minimum manning and certification requirements
5.129
5B.13 Detention
5.130
5B.14 Right of appeal
5.132
5B.15 Codes for action taken
5.133
5B.16 Detention information
5.134
The Memorandum of Understanding on Port State Control in the
Asia–Pacific Region 1993 (Tokyo MOU)
5.135
xvii
TABLE OF CONTENTS
5C.1
5C.2
5C.3
5C.4
5C.5
5C.6
5C.7
5C.8
5C.9
5C.10
5C.11
5C.12
5C.13
5C.14
5C.15
5C.16
5C.17
5D
5E
Introduction
Member States
Basic principles
Structure
Relevant instruments
Target rate
Ship selection criteria
Inspection
First inspection criteria
Grounds for a more detailed inspection
No more favourable treatment
Detention
Right of appeal
Codes for action taken
Detention information
Concentrated inspection campaigns
Examples of PSC inspection cases in different maritime
authorities of the Tokyo MOU
5C.17(i) Australia
5C.17(ii) Hong Kong
The Memorandum of Understanding on Port State Control in the
Caribbean Region 1996 (Caribbean MOU)
5D.1
Member States
5D.2
Basic principles
5D.3
Structure
5D.4
Code of safety for cargo ships operating in the Caribbean
5D.5
Relevant instruments
5D.6
Target rate for inspection
5D.7
No more favourable treatment
5D.8
Ships for inspection
5D.9
First inspections
5D.10 Clear grounds
5D.11 Detention
5D.12 Detention information
5D.13 Codes for actions taken
The Memorandum of Understanding on Port State Control in the
Mediterranean Region 1997 (Mediterranean MOU)
5E.1
Member States
5E.2
Basic principles
5E.3
Relevant instruments
5E.4
Target rate for inspection
5E.5
Ship selection criteria
5E.6
Grounds for a more detailed inspection
5E.7
No more favourable treatment
5E.8
Ships below Convention size
5E.9
Operational violations
5E.10 Detention
5E.11 Accidental damage
5E.12 Right of appeal
5E.13 Codes for action taken
5E.14 Detention information
xviii
5.135
5.136
5.137
5.138
5.139
5.140
5.141
5.142
5.143
5.144
5.145
5.146
5.147
5.148
5.149
5.151
5.152
5.152
5.153
5.154
5.154
5.155
5.156
5.157
5.158
5.159
5.160
5.161
5.162
5.163
5.164
5.165
5.166
5.167
5.167
5.168
5.169
5.170
5.171
5.172
5.173
5.174
5.175
5.176
5.177
5.178
5.179
5.180
TABLE OF CONTENTS
5F
5G
5H
5I
6
The Memorandum of Understanding on Port State Control for the
Indian Ocean Region 1998 (Indian Ocean MOU)
5F.1
Introduction
5F.2
Member States
5F.3
Basic principles
5F.4
Relevant instruments
5F.5
Target rate
5F.6
Inspection criteria
5F.7
Grounds for a more detailed inspection
5F.8
No more favourable treatment
5F.9
Ships below Convention size
5F.10 Operational violations
5F.11 Detention
5F.12 Accidental damage
5F.13 Right of appeal
5F.14 Detention information
5F.15 Codes for actions taken
The Memorandum of Understanding on port State control for the West
and Central Africa Region 1999 (Abuja MOU)
5G.1
Member States
5G.2
Relevant instruments
5G.3
Target rate
5G.4
Ship selection criteria
The Memorandum of Understanding on Port State Control in the
Black Sea Region 2000 (Black Sea MOU)
5H.1
Member States
5H.2
Relevant instruments
5H.3
Target rate
5H.4
Ship selection criteria
Regional Agreement Under Development
PORT STATE CONTROL IN THE UK
6A
Introduction
6B
UK port State control legislation
6B.1
Background
6B.2
The Merchant Shipping (Port State Control) Regulations 1995
(S.I. 1995 No. 3128), as amended
6B.2(i)
Application
6B.2(ii)
Competent authority
6B.2(iii) The Maritime and Coastguard Agency (MCA)
6B.2(iv) Conventions
6B.2(v)
Publication of detentions
6B.2(vi) Reports from pilots and port authorities
6B.2(vii) Inspections
Ships to be considered for priority inspection
6B.2(viii) Inspection procedure
6B.2(ix) Mandatory expanded inspection of certain ships
6B.2(x)
Inspection report
6B.2(xi) Detention
xix
5.181
5.181
5.182
5.183
5.184
5.185
5.186
5.187
5.188
5.189
5.191
5.191
5.192
5.193
5.194
5.195
5.121
5.196
5.197
5.198
5.199
5.200
5.201
5.202
5.203
5.203
5.204
6.1
6.1
6.4
6.4
6.6
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.16
6.18
6.19
6.20
TABLE OF CONTENTS
Voyage data recorder (VDR)
Access refusal notices
6B.2(xii) Procedure applicable in the absence of ISM certificates
International Ship and Port Facility Security (ISPS)
Code
6B.2(xiii) Costs
6B.2(xiv) Appeal procedures
6B.2(xv) Compensation
Complaints procedure
6B.3 Examples of detention cases under UK port State control
7
THE
7A
7B
7C
7D
6.21
6.25
6.26
6.27
6.28
6.29
6.33
6.34
6.35
EU DIRECTIVE ON PORT STATE CONTROL
7.1
Introduction
7.1
Port State control in the EU
7.4
Main points of Directive 95/21/EC
7.8
7C.1
Purpose
7.8
7C.2
Scope
7.9
7C.3
Obligations
7.10
7C.4
Targets of the Directive
7.11
7C.5
Inspection body
7.12
7C.6
Inspection procedure
7.13
7C.7
Detention
7.14
7C.8
Right of appeal
7.15
7C.9
Publication of detentions
7.16
7C.10 Amendment procedure
7.17
Amendments to port State control Directive
7.18
7D.1
Commission Directive 98/25/EC of April 27 1998
7.18
7D.1(i)
Procedure applicable in the absence of ISM certificates 7.19
7D.2
Council Directive 98/42/EC of June 19 1998
7.20
7D.3
Commission Directive 99/97/EC of December 13 1999
7.27
7D.4
Directive 2001/06/EC of December 19 2001
7.28
7D.4(i)
Banning manifestly substandard ships from European
waters
7.29
First list of ships definitely banned from EU ports
7.31
Indicative list of vessels which may be banned from EU
ports if they are detained one more time
7.32
7D.4(ii) Obligation to inspect ships posing a high risk to
maritime safety and the marine environment
7.33
7D.4(iii) Follow-up on the result of inspections
7.35
7D.4(iv) Informing the flag State and the classification societies 7.36
7D.4(v)
Verification of the financial guarantee covering pollution
risk
7.37
7D.4(vi) Transparency of information on the ships inspected or
detained in accordance with the Directive
7.38
7D.4(vii) Monitoring application of the Directive and assessing
the performance of member States
7.40
7D.4(viii) International and community requirements concerning
VDR systems
7.41
7D.4(ix) Inspection body
7.42
7D.5
Directive 2002/84/EC of November 5 2002
7.43
xx
TABLE OF CONTENTS
8
9
EQUASIS
8A
Introduction
8B
Organization
8C
Content
8D
List of Data Displayed on Equasis
8D.1
Charterer data
8D.2
Class-related information
8D.3
Port State control data
8D.4
Publication of information related to detentions and inspections in
ports of member States as referred to in Art. 15
THE ERIKA, THE PRESTIGE AND EFFECTS ON
INTERNATIONAL LEGISLATION
9A
Introduction
9B
The Erika, December 1999
9C
History of the Erika
9C.1
Background
9C.2
Names, registrations and classification societies of the Erika
9C.3
Inspections
9C.3(i)
Port State control inspections
9C.4
Sisterships
9D
The Prestige, November 2002
9D.1
Ship’s history
9D.2
Class survey history
9D.2(i)
Special Survey No.5: conducted in Guangzhou,
China, May 2001
9D.2(ii) Annual survey: conducted in Dubai, UAE
9D.3
The cargo
9E
Other incidents
9E.1
The Castor, December 2000
9E.2
The Tasman Spirit, July 2004
9F
The compensation system
9F.1
In general
9F.2
Payments for the Erika and the Prestige
9F.2(i)
The Erika
9F.2(ii)
The Prestige
9G
Reactions
9G.1
General
9G.2
Post-Prestige response in Spain
9G.2(i)
Royal decrees
Ban on single hull tankers
Royal Decree 995/2003
Royal Decree 210/2004
Royal Decree 253/2004
9G.2(ii) Other measures taken
Pollution fines
New resolution on navigation within ports
9G.3
Classification societies
9G.3(i)
RINA (Registro Italiano Navale Group)
9G.3(ii) ABS (American Bureau of Shipping)
Actions taken following the Prestige incident
9G.3(iii) BV (Bureau Veritas)
9G.4
IACS
xxi
8.1
8.1
8.3
8.4
8.5
8.6
8.7
8.8
8.9
9.1
9.1
9.3
9.4
9.4
9.9
9.10
9.11
9.12
9.13
9.14
9.15
9.15
9.17
9.19
9.20
9.20
9.21
9.22
9.22
9.23
9.23
9.24
9.26
9.26
9.27
9.27
9.27
9.28
9.29
9.35
9.36
9.36
9.37
9.38
9.38
9.40
9.41
9.42
9.43
TABLE OF CONTENTS
9G.5
9G.6
9G.7
9G.8
9G.9
10
INTERTANKO (International Association of Independent
Tanker Owners)
9.47
ITF (The International Transport Workers Federation)
9.48
Malta registry
9.49
IMO
9.51
9G.8(i)
Raised compensation limits for oil pollution disasters
9.52
CLC compensation limits
9.54
9G.8(ii) Mandatory ship reporting system, traffic separation and
routeing systems
9.56
9G.8(iii) Agreement on single hull tanker phase-out
9.65
Measures aimed at enhancing safety and minimizing
the risk of oil pollution
9.69
Accelerated phase-out for single hull tankers
9.72
9G.8(iv) Carriage of heavy grade oil
9.73
9G.8(v)
Ports of refuge
9.74
In general
9.74
Previous cases
9.75
International action on places of refuge
9.76
9G.8(vi) The ISPS Code
9.82
European Union
9.83
9G.9(i)
Measures already taken
9.83
The Erika I package
9.84
The Erika II package
9.85
9G.9(ii) Measures proposed after the Prestige incident
9.86
General measures taken on December 3 2002
9.86
Measures concerning single hull ships proposed on
December 20 2002
9.87
Amendment to MARPOL
9.88
Action to combat polluting discharges
9.89
Voluntary agreements with the oil industry
9.92
Expected conduct of member States
9.93
Defence and representation of EU’s vital interests at
international level
9.94
Full membership of IMO
9.95
9G.9(iii) Community monitoring, control and information
system for maritime traffic
9.96
9G.9(iv) Measures concerning single hull tankers
9.105
Before the Erika incident
9.105
After the Erika incident (measures adopted between
March 2000 and February 2002)
9.107
Following the Prestige incident (December 2002)
9.108
9G.9(v)
The European Maritime Safety Agency (EMSA)
9.112
PORT STATE CONTROL IN THE US
10A Introduction
10A.1 Summary of changes
10A.1(i) Two-step risk-based screening tool
10A.1(ii) Boarding procedures
10A.1(iii) Control procedures
10A.1(iv) Reporting and communication
xxii
10.1
10.1
10.5
10.6
10.7
10.8
10.9
TABLE OF CONTENTS
10A.1(v) Training
Applicable domestic statutes and regulations
10B.1 Applicable international Conventions
10B.2 Applicable US provisions/authorities
10C Definitions and terms of reference
10D Coast guard port State control targeting and boarding policy for vessel
security and safety
10D.1 Guidance on vessel security and safety, port State control
targeting and boarding policy; Navigation and Vessel Inspection
Circular 06-03
10D.2 Risk-based targeting for all vessels
10D.2(i) Advance NOAs
Time limit
Methods for submitting an NOA
Changes to a submitted NOA
Submission of the cargo declaration
(Customs Form 1302)
NOA for hazardous conditions and certain dangerous
cargo
10D.3 Targeting philosophy for ISPS/MTSA security compliance and
safety and environmental protection compliance
10D.3(i) Using the matrices
ISPS/MTSA security compliance
Safety and environmental protection compliance
Compliance targeting matrix instructions (Step I and
Step II)
10D.4 Targeting factor criteria
10D.4(i) 1) ISPS/MTSA Security compliance targeting criteria
(effective July 1 2004)
A. Targeted ship management
B. Targeted flag administration
C. Targeted RSO
10D.4(ii) 2) Safety and environmental protection compliance
targeting criteria
A. Targeted ship management
B. Targeted flag administration
C. Targeted classification society
10E Reporting and notification procedures
10E.1 A. Security and safety-related detentions: unit responsibilities
10E.1(i) 1. Flag State notification
10E.1(ii) 2. Headquarters/area/district notification
10E.1(iii) 3. Classification society/RO/RSO
10E.1(iv) 4. Ship management notification
10E.2 B. Security and safety-related detentions: USCG headquarters
responsibilities
10E.2(i) 1. Owner notification
10E.2(ii) 2. IMO notification
10E.3 C. MISLE Documentation
10E.3(i) 1. Detentions, expulsions, denial of entry
10E.3(ii) 2. Deficiencies compliance dates
10E.3(iii) Deficiency format
10B
xxiii
10.10
10.11
10.11
10.12
10.13
10.23
10.23
10.24
10.25
10.26
10.27
10.28
10.29
10.30
10.31
10.32
10.33
10.34
10.35
10.47
10.48
10.49
10.50
10.51
10.52
10.53
10.54
10.55
10.56
10.57
10.58
10.59
10.60
10.61
10.62
10.62
10.63
10.64
10.64
10.65
10.66
TABLE OF CONTENTS
10F
10G
10E.3(iv) Port State control report of inspection
10.67
Boarding procedures
10.68
10F.1 Types of boarding examinations
10.68
10F.1(i) The ISPS/MTSA Security Compliance Examination 10.69
10F.1(ii) The PSC Safety and Environmental Protection
Compliance Examination
10.70
10F.1(iii) Non-Convention Vessel Security Compliance
Examination
10.71
10F.2 Authority
10.72
10F.3 Boarding decision/location reference table for vessels arriving or in
a US port
10.73
10F.4 Security boarding procedures
10.75
Port State enforcement and control procedures
10.80
10G.1 Security compliance examination procedures: ISPS/MTSA
Security Compliance Examination and Non-Convention Vessel
Security Compliance Examination
10.80
10G.1(i) 1. Purpose
10.80
10G.1(ii) 2. Applicability
10.81
10G.1(iii) 3. Definitions
10.82
10G.1(iv) 4. General
10.83
10G.1(v) 5. ISPS/MTSA Security Compliance Examination
10.84
10G.2 Safety compliance examination procedures: PSC Safety and
Environmental Protection Compliance Examination
10.86
10G.2(i) 1. Purpose
10.86
10G.2(ii) 2. Authority
10.87
10G.2(iii) 3. General examination
10.88
10G.3 Clear grounds
10.111
10G.3(i) Security deficiencies
10.112
10G.3(ii) Safety deficiencies
10.113
10G.4 Vessel control procedures for security and safety
10.114
10G.5 Administrative enforcement measures applying to both security and
safety violations
10.125
10G.6 Examples of detainable deficiencies for security
and safety
10.128
10G.6(i) A. Documentation discrepancies
10.128
10G.6(ii) B. ISPS Code
10.129
10G.6(iii) C. SOLAS
10.130
10G.6(iv) D. ICLL 66
10.131
10G.6(v) E. MARPOL 73/78
10.132
10G.6(vi) F. STCW
10.133
10G.6(vii) G. ILO 147
10.134
10G.6(viii) H. IBC Code
10.135
10G.6(ix) I. IGC Code
10.136
10G.6(x) J. ISM Code
10.137
10G.7 International Port Security Program and actions taken against
vessels arriving from non-compliant countries
10.138
10G.7(i) Introduction
10.138
10G.7(ii) International Port Security Program implementation
processes
10.139
10G.7(iii) Recommended actions for vessels calling at a noncompliance port facility
10.143
xxiv
TABLE OF CONTENTS
10G.7(iv) Recommended actions for compliant port facilities
in non-compliant countries
10G.7(v) Recommended actions for countries not signatory to
SOLAS that wish to trade with the US
10H ISM Code and US Port State Control
10H.1 ISM Code in action
10H.2 Notification
10H.3 Inspections
10H.4 ISM Code compliance tools
10I Rights of appeal
10J Penalty for vessels detained under US Port State Control Program
10K US Port State control and state practice
10L Coast Guard database
10L.1 Examples of detention cases under US Port State Control
Program
10M Qualship 21
10M.1 Which vessels are eligible?
10M.2 Specific Qualship 21 eligibility criteria
10M.3 Incentives received by Qualship 21 vessels
10M.4 Port fees for Qualship 21 vessels
10M.5 Changes in documents issued by the captain of the port
(COTP) to foreign vessels
10M.6 Criteria for revoking Qualship 21 eligibility
10M.7 Renewal of eligibility
10M.8 Flag States eligible in 2004
10N Large Fleet Program
11
THE INTERNATIONAL SAFETY MANAGEMENT (ISM)
CODE
11A General
11B Main points of the ISM Code
11C Certificates
11C.1 Documents of Compliance
11C.2 Safety Management Certificate
11C.3 Interim DOC and SMC
11D Insurance
11E Liability under the Code
11E.1 Seaworthiness
11E.1(i) The vessel’s equipment
11E.1(ii) The competency of the master
11E.1(iii) Court’s comments relating to the documentation
supplied to the vessel
11E.2 Due diligence
11E.3 Limitation of liability
11E.4 Criminal liability
11F Liability under UK law
11F.1 Liability under Merchant Shipping Regulations 1988
11F.1(i) Regulation 19(1)
11F.1(ii) Regulation 19(2)
11F.1(iii) Regulation 19(3)
xxv
10.145
10.149
10.150
10.151
10.153
10.154
10.162
10.163
10.175
10.177
10.182
10.183
10.184
10.185
10.186
10.187
10.188
10.189
10.190
10.191
10.192
10.193
11.1
11.1
11.2
11.5
11.6
11.7
11.8
11.9
11.15
11.16
11.20
11.21
11.22
11.25
11.26
11.29
11.30
11.30
11.30
11.31
11.32
TABLE OF CONTENTS
11F.1(iv) Regulation 19(4)
11F.1(v) Regulation 19(5)
11F.1(vi) Regulation 19(6)
11G Dangerously unsafe ship or the unsafe operation of a ship
11H Port State control and the ISM Code
11H.1 Major non-conformities
11I Inspection campaigns
11.33
11.34
11.35
11.36
11.40
11.45
11.47
12
CLASSIFICATION SOCIETIES
12.1
12A The origin of classification societies
12.1
12A.1 Lloyd’s Register of Shipping
12.2
12A.2 Bureau Veritas
12.3
12A.3 American Bureau of Shipping
12.4
12A.4 Det Norske Veritas
12.5
12B Present-day role of classification societies
12.6
12C The International Association of Classification Societies (IACS)
12.9
12D The relationship between the IACS and the IMO
12.12
12E Liability of classification societies
12.14
12E.1 Contractual liability
12.15
12E.2 Tort liability
12.19
12E.3 Legislative immunity
12.30
12E.4 Exemption clauses
12.31
12E.5 Criminal liability
12.34
12F Review of the classification society’s liability
12.35
12G Council Directive 94/57/EC on Ship Inspection and Survey Organizations 12.40
12G.1 Granting of recognition
12.43
12G.2 Suspension of recognition
12.44
12G.3 Withdrawal of recognition
12.45
12G.4 Simplification and enhancement of procedure for monitoring
recognized organizations
12.46
12G.4(i) Obligations of member States as port States
12.47
12G.5 Liability of classification societies
12.48
12G.6 More stringent requirements to be met by recognized organizations
12.49
13
PRACTICAL IMPLICATIONS OF PORT STATE CONTROL
13A Inspection
13B Detention
13C Additional powers
13D The legal powers of a Port State Control Officer
13E The contractual effect of port State control detentions
13E.1 Sale and purchase contracts
13E.1(i) Condition on delivery
13E.1(ii) Encumbrances
13E.2 Frustration
13E.3 Off-hire
13E.3(i) NYPE Clause 15
13E.3(ii) Baltime 1939
13E.3(iii) Shelltime 4 (1984) Clause 21
13E.4 Indemnity claims
13E.5 Notice of readiness
xxvi
13.1
13.1
13.2
13.4
13.5
13.6
13.7
13.9
13.10
13.20
13.22
13.23
13.30
13.31
13.32
13.36
TABLE OF CONTENTS
13E.6
13E.7
13E.8
Unseaworthiness
Set-off
Loan agreements
13.41
13.42
13.43
Page
APPENDICES
A
The IMO
A1
Status of Conventions
A2
Summary of status of Conventions
B
Regional agreements
B1
Paris MOU
B2
Banned ships
B3
Port State control agreements: comparative table
C
Port State Control in the UK
C1
Merchant Shipping (Port State Control) Regulations 1995
(S.I. 1995 No. 3128)
C2
Merchant Shipping (Port State Control) (Amendment)
Regulations 1998 (S.I. 1998 No. 1433)
C3
Merchant Shipping (Port State Control) (Amendment No.2)
Regulations 1998 (S.I. 1998 No. 2198)
C4
Merchant Shipping (Port State Control) (Amendment)
Regulations 2001 (S.I. 2001 No. 2349)
C5
Merchant Shipping (Port State Control) (Amendment)
Regulations 2003 (S.I. 2003 No. 1636)
C6
Merchant Shipping Notice (Port State Control) (Amendment)
Regulations 2003 (MSN 1775 (M))
D
EC Directive on port State control and amendments
D1
Council Directive 95/21/EC of June 19 1994
D2
Council Directive 98/25/EC of April 27 1998
D3
Council Directive 98/42/EC of June 19 1998
D4
Commission Directive 99/97/EC of December 13 1999
D5
Council Directive 2001/06/EC of December 19 2001
D6
Council Directive 2002/84/EC of November 5 2002
E
Port State control in the US
E1
US Coast Guard Annual flag list
E2
US Coast Guard 2003 List of targeted and non-targeted
classification societies
E3
ISM denials of entry
INDEX
537
541
543
597
599
607
617
619
621
623
631
655
673
677
683
689
705
713
715
719
721
xxvii
Bibliography
Anderson, H.E., “The nationality of ships and flags of convenience: economics,
politics, and alternatives” (1996) 21 Tulane Maritime Law Journal, pp.139–170
Anderson, P., ISM Code: A Practical Guide to the Legal and Insurance Implications
(LLP, London, 1998)
Bassindale, J. and Vlasto, T., “International safety management code”
— Part I (1998) 12 P&I International, pp.38–40
— Part II (1998) 12 P&I International, pp.62–64
— Part III (1998) 12 P&I International, pp.83–85
Basindale, J., “Charterparty indemnity claims: an update” (1998) 6 International
Maritime Law, pp.187–195
Bell, D., “Port State control v. flag State control” (1993) 17 Marine Policy,
pp.367–370
Bernaerts, A., Bernaerts’ Guide to the 1982 United Nations Convention on the Law of the
Sea, Including the text of the UN Convention and Final Act (1988)
Blanco-Bazán, A., “Implementation of IMO conventions by flag and port States” in
Couper, A. and Gold, E. (eds.), The Marine Environment and Sustainable Development:
Law, Policy and Science: Proceedings, the Law of the Sea Institute Twenty-fifth Annual
Conference (1993)
Blanco-Bazán, A., “IMO interface with the Law of the Sea Convention”, Seminar on
current maritime issues and the work of the International Maritime Organization,
23rd Annual Seminar of the Center for Ocean Law and Policy, University of Virginia
School of Law, January 6–9 2000
Boczek, B.A., Flags of Convenience, An International Legal Study (1962)
Bodansky, D., “Protecting the marine environment from vessel-source pollution:
UNCLOS III and beyond” (1991) 18 Ecology Law Quarterly, pp.719–777.
Boisson, P., Safety At Sea, Policies, Regulations & International Law (Bureau Veritas,
1999)
Boisson, P., “Classification societies and safety at sea: back to basics and prepare for
the future” (1994) 18 Marine Policy, pp.363–377
Boisson, P., “Classification society liability: maritime law principles must be
requestioned?”, in CMI Yearbook 1994
Box, B., “The Erika effect”, Seatrade Review, March 2000, pp.19–21
Brown, E.D., The International Law of the Sea, Vol. I, Introductory Manual; Vol. II,
Documents, Cases and Tables (1994)
Bryant, D.L., “Port State control as practised by the US Coast Guard” (1997) 10
International Maritime Law, pp.303–309
Campbell, J., “EU round-up: European union declares war on substandard ships”
[1996] IJOSL 59–60
xxix
BIBLIOGRAPHY
Cane, P.F., “The liability of classification societies” [1994] LMCLQ 363–376
Canty, R., “Limits of Coast Guard authority to board foreign vessels on the high seas”
(1998) 23 Tulane Maritime Law Journal, pp.123–137
Chen, Liang, “Legal and practical consequences of not complying with ISM code”
(2000) 27 Maritime Policy and Management, pp.219–230
Chircop, A., “Ships in distress, environmental threats to coastal States, and places of
refuge: new directions for an ancien regime?” (2002) 33 Journal of Marine Affairs,
Ocean Development and International Law, pp.207–226
Churchill, R.R., and Lowe, A.V., The Law of the Sea (2nd edn, 1988)
Commission of the European Communities, COM (2000) 142 final, Communication
from the Commission to the European Parliament and the Council on the Safety of the
Seaborne Oil Trade Brussels, 21.3.2000
Commission of the European Communities, COM (2000) 802 (01), Communication
from the Commission to the European Parliament and the Council on a second set of
Community measures on maritime safety following the sinking of the oil tanker Erika. A
proposal for Directive of the European Parliament and of the Council establishing a
Community monitoring, control and information system for maritime traffic. Proposal for a
regulation of the European Parliament and of the Council on the establishment of a fund for
the compensation of oil pollution damage in European waters and related measures. Proposal
for a regulation of the European Parliament and of the Council Establishing a European
Maritime Safety Agency, Brussels 6.12.2000
Commission Proposal—COM (2000) 142 final [500PC0142(01)], Proposal for a
Directive of the European Parliament and of the Council amending Council Directive
95/21/EC 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)
Commission Proposal—COM (2000) 142 final [500PC0142(02)], Proposal for a
Directive of the European Parliament and of the Council amending Council Directive
94/57/EC on common rules and standards for ship inspection and survey organisations and
for the relevant activities of maritime administrations
Commission Proposal—COM (2000) 142 final [500PC0142(03)], Proposal for a
regulation of the European Parliament and of the Council on the accelerated phasing-in of
double hull or equivalent design requirements for single hull oil tankers
Corbet, A.G., “Who is the shipowner?” (1993) December Seaways, p.16
De La Fayette, L., “The protection of the marine environment” (2000) 30/1–2
Environmental Policy and Law, pp.51–60
Devine, D., “Port State jurisdiction: a judicial contribution from New Zealand”
(2000) 24 Marine Policy, pp.215–219
Dickie, P., “The contractual effect of port State control detentions” (1997)
December International Ship Registry Review, pp.2–8
— November (1997) pp.1–3
Doganis, S.R. and Metaxas, B.N., The impact of flags of convenience, Research
Reports/Polytechnic of Central London, Transport Studies Group, No.3, 1976,
pp.79, 103
East, L., “Unseaworthiness—Burden of proof—Can you blame the classification
society?” 1995 Shipping Conference, London
xxx
BIBLIOGRAPHY
Einarsrud, T., “ISM Code—Status of implementation and a comparison with other
certification schemes” (1999) 153 Gard News, pp.9–13
Feehan, C.E., “Liability of classification societies from the British perspective: The
Nicholas H” (1997) 22 Tulane Maritime Law Journal, pp.163–190
France, W.N., “Classification societies: their liability—an American lawyer’s point of
view in the light of recent judgments” [1996] IJOSL 67–77
“Fire defence—ISM and Hague/Hague-Visby obligations”, Sea Venture, June 2003
Gard Loss Prevention Circular No. 08-03, “New Resolution of the Spanish Maritime
Authorities (DGMM)”
Gard Loss Prevention Circular No. 04-04, “New Spanish regulations—navigation
and the environment. Two Royal decrees enacted in Spain”
Gard News, “Port State Control. The future of substandard ships” (1996) 141, pp.3–8
Gard News, “International Safety Management Code (ISM Code)” (1996) 142,
pp.16–18
Gard News, “Notice of readiness and the commencement of laytime” (1998) 150,
pp.29–32
Gard News, “The ISM Code: discovery and evidential issues” (1998) 151, pp.38–39
Gard News, “The pain in Spain—post Prestige, pollution response is now even
tougher” (2004) 173
Gilmour, T. and Drury, D., “PCS in the US—emphasis on ISM/STCW enforcement” (1999) 94 BIMCO Bulletin, pp.53–54
Gilmour, T.H., “US Coast Guard’s Perspective on ISM compliance: a status report”,
presentation to Marine Log’s Tanker and Maritime Legislation 1998, Washington
DC, September 22 1998
Goldrein, I.S., (ed.), Ship Sale and Purchase, 3rd edn (1998)
Gordan III, J.D., “The liability of marine surveyors and ship classification societies”
(1998) 19 Journal of Law and Commerce, pp.301–306
Greenaway, C., Port State Control, A Guide for Members and Port State Control, Principal
Features at a Glance (Thomas Miller & Co Ltd, London, 1998)
Grunsey, K., Flags of Convenience in 1978, Transport Studies Group, Discussion
Paper No.8 (1978)
“Hague/Hague Visby Rules—fire defence—SOLAS compliance does not guarantee
due diligence”, Sea Venture, August 2002
Hare,
J.,
“Flag,
Coastal
and
Port
State
Control”,
http://www.uct.ac.za/depts/shiplaw/portstat.htm
Hare, J., “Port State control: strong medicine to cure a sick industry”,
http://www.uct.ac.za/depts/shiplaw/psc2.htm
Healy, N.J. and Sweeney, J.C., “Basic principles of the law of collision” (1991) 22
Journal of Maritime Law and Commerce, pp.359–404
Hilton, C., “The Legal Implications of the ISM Code” (2000) 95 BIMCO Bulletin,
pp.26–33
Honka, H., “The classification system and its problems with special reference to the
liability of classification societies” (1994) 19 Tulane Maritime Law Journal, pp.1–36
Hoppe, H., “Flag State implementation, the work of the IMO subcommittee” (2000)
March Seaways, pp.14–15
Huibers, H.E., “Development on port State control . . . a situation report” Sixth
Congress of the European Harbour Masters’ Association, June 17–22 1996,
Reykjavik, Iceland
xxxi
BIBLIOGRAPHY
IMO, International Safety Management Code (ISM Code) And Guidelines On The
Implementation Of The ISM Code (1997)
IMO, Procedures for Port State Control (1997)
IMO, “Tanker safety: the work of the International Maritime Organization”, Focus on
IMO, March 1996
IMO, “Cutting red tape. IMO and the facilitation of maritime travel and transport”,
Focus on IMO, December 1996
IMO, “IMO and ro-ro safety”, Focus on IMO, January 1997
IMO, “IMO and the safety of bulk carriers”, Focus on IMO, January 1998
IMO, “Basic facts about IMO”, Focus on IMO, January 1998
IMO, “IMO and the safety of navigation”, Focus on IMO, January 1998
IMO, “Preventing marine pollution. The environmental threat”, Focus on IMO,
March 1998
IMO, “IMO 1948–1998: a process of change”, Focus on IMO, September 1998
IMO, “MARPOL—25 years”, Focus on IMO, October 1998
IMO, “SOLAS: the International Convention for the Safety of Life at Sea, 1974”,
Focus on IMO, October 1998
IMO, “MSC develops proposed list of measures to eliminate sub-standard ships,
MSC 73rd session, November 27 to December 6 2000”, IMO Briefing, December 12
2000
IMO, “IMO adopts convention on liability and compensation for pollution from
ships’ bunkers”, IMO Briefing, March 23 2001
INTERTANKO, “INTERTANKO pleased with US Supreme Court action directing review of Washington State Tanker Regulations” http://www.intertanko.com/
artikkel.asp?id=280 (January 18 2000)
INTERTANKO, “INTERTANKO applauds Washington State decision to repeal
tanker rules” http://www.intertanko.com/artikkel.asp?id=896 (January 18 2000)
INTERTANKO, “INTERTANKO vs the State of Washington” http://www.intertanko.com/artikkel.asp?id=217 (January 18 2000)
INTERTANKO, “INTERTANKO welcomes court decision striking down efforts to
require modifications to tank vessel equipment and design” http://www.intertanko.com/artikkel.asp?id=323 (January 18 2000)
INTERTANKO, “INTERTANKO welcomes involvement of the United States
Federal Government in the Washington State legal challenge” http://www.intertanko.com/artikkel.asp?id=234 (January 18 2000)
INTERTANKO, “US Supreme Court Supports INTERTANKO In Washington
State Case” http://www.intertanko.com/artikkel.asp?id=273 (January 18 2000)
ITF, “Is there a better way to regulate the shipping industry?” Conference Papers,
Oslo, June 23–24 1998
Ivanov, G., “The role of IMO in the development of international maritime law”,
IMO News, Number 1, 1997.
Iyer, A., “Legal aspects of the sale and purchase of ships” (1998) 93 BIMCO Bulletin,
pp.40–47
Julian, M., “25 years of protecting the marine environment” (1998) Autumn/Winter
International Tanker Review, pp.25–28
Julian, M., “Current IMO position on places of refuge, salvage and wreck removal”,
Safe Havens and Salvage Conference, Sydney, Australia, February 19–20 2002
xxxii
BIBLIOGRAPHY
Kasoulides, G.C., Port State Control and Jurisdiction, Evolution of the Port State Regime
(1993)
Keselj, T., “Port State jurisdiction in respect of pollution from ships: The 1982
United Nations Convention on the Law of the Sea and the Memoranda of
Understanding” (1999) 30 Ocean Development and International Law, pp.127–160
Kiehne, G., “Investigation, detention and release of ships under the Paris Memorandum of Understanding on port State control: a view from practice” (1996) 11 The
International Journal of Marine and Coastal Law, pp.217–224
Kinnock, N., “Is the European Union seafarer an endangered species?”, speech to the
Dublin Maritime Conference, Dublin (December 17 1996)
Knight, G. and Chiu, H., The International Law of the Sea: Cases, Documents, and
Readings (1991)
Leech, S., “Developments in Marine Liabilities From a Legal Perspective”, Mare
Forum 2000: Shipping Management versus Risk Finance in Shipping, September
26–27 2000, Athens, Greece
Lloyd’s List Events, Port State control: managing safety and quality in shipping, July
11–12 2000, London
Lloyd’s List Events, Tanker Safety, Learning and Implementing Lessons from Erika,
September 21–22 2000, London
Lee, L.T., “The Law of the Sea Convention and third States” (1993) 77 American
Journal of International Law, pp.541–568
Lei, S., “Successful use of the tacit acceptance procedure to effectuate progress in
international maritime law”, in University of San Francisco Maritime Law Journal,
1988-1999, pp.300-331
Levy, H., “The ISM Code—impact on P&I cover” (1998) 93 BIMCO Bulletin, 36–41
Lux, J., (ed.), Classification Societies (1993)
Malta Maritime Authority, Reports of the Investigation into the loss of the motor tanker
Erika on Sunday 12 December 1999 (2000)
Maguire, C., “EU round-up: roll-on-roll-off EEC law (Part II)” [1996] IJOSL
315–321
Maguire, C., “EU round-up: port State control—Brussels style” [1996] IJOSL
118–122
McDorman, T.L., “Port State enforcement: a comment on Article 218 of the 1982
Law of the Sea Convention” (1997) 28 Journal of Maritime Law and Commerce,
pp.305–322
Marchand, P., “Equasis and Quality Shipping Initiative: examining the real impact on
shipping”, Port State Control: Managing Safety and Quality in Shipping Conference,
July 10–11 2000, London
Metaxas, B.N., Flags of Convenience, A Study of Internationalization (1985)
Meyers, H., The Nationality of Ships (1967)
Middleton I., “Erika: the system’s weakest link” (2000) March Seatrade Review,
pp.4–7
Middleton, I., “Erika . . . a key issue”, (2000) February Seatrade Review, pp.20–21
Middleton, I., “Was the Erika flawed right from the start?” (2000) January Seatrends
Web, Issue 1, pp.1–2
Mitropolous, E.E. “The control of foreign ships in ports and offshore terminals
according to IMO Conventions” IMO/UNDP/USSR Seminar on “Ports and related
maritime safety and pollution prevention and combat aspects”, Odessa, August
16–29 1985
xxxiii
BIBLIOGRAPHY
Molenaar, E.J., “The EC Directive on port State control in context” (1996) 11
International Journal of Marine and Coastal Law, pp.241–268
Nordquist, M.H. (ed. in chief), United Nations Convention on the Law of the Sea 1982,
A Commentary, Center for Oceans Law and Policy, University of Virginia School of Law,
Vol. I, Vol. II, Articles 1 to 85—Annexes I and II—Final Act, Annex II; Vol. III,
Articles 86 to 132 and Documentary Annexes; Vol. IV, Articles 192 to 278—Final
Act, Annex VI (1995)
Northrup, H.R. and Scrase, P.B., “The International Transport Workers’ Federation
flag of convenience shipping campaign: 1983–1995” (1996) 23 Transportation Law
Journal, pp.369–423
Norton Rose, “What a difference a flag makes” (1998) 12 P&I International,
pp.112–113.
Odeke, A., “Port State control and UK law” (1997) 28 Journal of Maritime Law and
Commerce, pp.657–665
Osieke, E., “Flags of convenience vessels: recent developments” (1979) 73 American
Journal of International Law, pp.604–627
O’Sullivan, “Sale & purchase: guarantees for defects under English law” (1998) 93
BIMCO Bulletin, pp.25–27
Owen, D.R., “The origins and development of marine collision law” (1977) 51 Tulane
Law Review, pp.759–809
Owen, P., “Port State control in Europe” in The Work of Harbour Master, A Practical
Guide (Nautical Institute, London, 1998), pp.220–227
Özçayır, Z.O., Liability for Oil Pollution and Collisions (1998)
Pamborides, G.P., “EU-round up, the shipping policy of the European Union”
[1998] IJOSL 216–222
Pamborides, G.P., “The ISM Code: potential legal implications” (1996) 2 International Maritime Law, pp.56–62
Papavizas, C.G., “Penalty enacted for vessels detained under US port State control
program” [1999] IJOSL 64–65
Plaza, F., “Port State control at the threshold of new millennium” (2000) 52 Indian
Shipping, pp.27–31
Plaza, F., “The importance of port State control. Achieving consistency for port State
control system”, Port State control: managing safety and quality in shipping
conference, July 10–11 2000, Lloyd’s List Events, London
Porcellacchia, F., “ISM Code—the culture of safety” (1999) June BIMCO Bulletin—
Special Issue, pp.100–102
Purvis, S., “The effect of port State control detention orders on sale of ships” (1996) 6
International Maritime Law, pp.197–199
Quirk, P., “Flag State Implementation” (1999) January–February Maritime Studies,
pp.1–7
Ready, N.P. and Coles, R.M.F. (eds.), Ship Registration (3rd edn, 2002)
Ringbakken, S., (gen. ed.,) Legal Implications of The ISM Code (INTERTANKO,
Oslo, 1996)
Rodgers, P., “The powers of a port State control officer and the legal impact of a
detention order” (1999) 155 Gard News, pp.20–23
Roach, J.A., “Alternatives for achieving flag State implementation and quality
shipping” (1999) 94 BIMCO Bulletin, pp.44–49
Sahatjian, L.C., “ISM/STCW: a shipowner’s legal position in case of detention”
(1999) 94 BIMCO Bulletin, pp.55–59
xxxiv
BIBLIOGRAPHY
Salvarani, R. and Lindström, S., “EU round-up, looking behind the Directive on port
State control” [1997] IJOSL 49–52
Salvarani, R., “The EC Directive on port State control: a policy statement” (1996)
11, The International Journal of Marine and Coastal Law, pp.225–231
Schiferli, R.W.J., “ISM—a year on” (1999) June BIMCO Bulletin—Special Issue,
pp.90–93
Scrase, P., “Legal Implications of the New ITF Policy”, LLP Ship Registers
Conference, September 22–23 1999, London.
Shaw, M.N., International Law (4th edn, 1997)
Shearer, I.A., Starke’s International Law (11th edn, 1994).
Smith, J.R.G., “IACS and IMO—the essential relationship”, The Future of the
Marine, Denmark Conference, March 27–28 1996, Copenhagen
Somers, L., “Port State control and throwing the light on shipowners’ rights” (1995)
Spring-Summer International Shipping Review, pp.44–46
Sturmey, S.G., “The United Nations Convention for registration of ships” [1987]
LMCLQ 97–117
Tetley, W., “The law of the flag, ‘flag shopping’ and choice of law” (1993) 17 Tulane
Maritime Law Journal, pp.139–179
“The ISM Code and contractual exclusions in bills of lading and charterparties”, Sea
Venture, June 2003
Titcomb, F. and Bergman, T., “US port State control—putting safety first” (1997) 92
BIMCO Bulletin, pp.22–25
Tolofari, S.R., Open Registry Shipping, A Comprehensive Study of Costs and Freight Rates
(1989)
“UK Court proceedings and arbitrations: pre-action/early disclosure”, Sea Venture,
June 2003
Vlasto, T., “The impact of ISM on limitation of liability” (1998) 93 BIMCO Bulletin,
pp.28–35
Walker, R., “Notices of readiness and commercial realities” (1999) August P&I
International, pp.173–175
Wilford, M., Coghlin, T., Kimball, J.D., Time Charters (5th edn, 2003)
xxxv
Table of Abbreviations
AAPA:
AMVER:
BAP:
BLG:
BV:
CAAM:
CAS:
CCG:
CLC:
CO:
COC:
COLREG 72:
COMSAR:
COTP:
DBT:
DE:
DOC:
EEZ:
FAL:
FP:
FOC:
FSA:
FSI:
FWPCA:
HFO:
IACS:
IEC:
ILO No.147:
ILO:
IMCO:
IMO:
INTERTANKO:
IOPCF:
ISM:
ITF:
LL 66:
American Association of Port Authorities
Automated Mutual-Assistance Vessel Rescue System
Best Achievable Protection Regulations/State of Washington
Bulk Liquid and Gases
Bureau Veritas
Centre Administratif des Affaires Maritimes
Condition Assessment Scheme
Canadian Coast Guard
International Convention on Civil Liability for Oil Pollution
Damage 1969/1992
Commanding Officer
Certificate of Compliance
International Regulations for Preventing Collisions at Sea 1972
Radiocommunications and Search and Rescue
Captain of the Port
Dedicated Ballast Tank
Ship Design and Equipment
Document of Compliance
Exclusive Economic Zone
Convention on Facilitation of International Maritime Traffic
Fire Protection
Flags of Convenience
Formal Safety Assessment
Flag State Implementation
Federal Water Pollution Control Act
Heavy Fuel Oil
International Association of Classification Societies
International Electronics Commission
Merchant Shipping (Minimum Standards) Convention
International Labour Organization
Inter-Governmental Maritime Consultative Organization
International Maritime Organization
International Association of Independent Tanker Owners
International Oil Pollution Compensation Funds
International Safety Management Code
International Transport Workers Association
International Convention on Load Lines 1966
xxxvii
TABLE OF ABBREVIATIONS
LOW:
LR:
MARPOL73/78:
Letter of Warning
Lloyd’s Register
International Convention for the Prevention of Pollution From
Ships 1973, and the 1978 Protocol relating thereto
MCA:
Maritime and Coastguard Agency
MEPC:
Marine Environment Protection Committee
MIA:
Marine Insurance Act
MODU:
Mobile Offshore Drilling Units
MOU:
Memorandum of Understanding
MSA:
Merchant Shipping Act
MSC:
Maritime Safety Committee
MSN:
Merchant Shipping Notice
MEPC:
Marine Environment Protection Committee
FSI:
Subcommittee on Flag State Implementation
GMDSS:
Global Maritime Distress and Safety System
MSC:
Maritime Safety Committee
MSN:
Merchant Shipping Notice
MSO:
Marine Safety Office
NAV:
Safety of Navigation
NKK:
Nippon Kaiji Kyokai
NOR:
Notice of Readiness
NSF:
Norwegian Sale Form
NYPE:
New York Produce Form
OCIMF:
Oil Companies International Marine Forum
OCMI:
Officer in Charge Marine Inspection
OPA:
Oil Pollution Act
OPRC:
The International Convention Oil Pollution Preparedness, Response and Co-operation
OPRC-HNS:
Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances
P&I:
Protection and Indemnity
PRS:
Polish Register of Shipping
PSC:
Port State Control
PSCO:
Port State Control Officer
RINA:
Registro Italiano Navale
RO:
Recognised Organization
SDR:
Special Drawing Rights
SI:
Statutory Instrument
SMC:
Safety Management Certificate
SOLAS 74:
International Convention for the Safety of Life at Sea 1974
STCW 78:
International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers 1978
TOC:
Transfer of Class
TONNAGE 1969: The International Convention on Tonnage Measurement of
Ships 1969
TSS:
Traffic Separation Scheme
UNCED:
The United Nations Conference on Environment and Development
xxxviii
TABLE OF ABBREVIATIONS
UNCITRAL:
UNCLOS:
UNCTAD:
UTC:
WSSD:
The United Nations Commission on International Trade Law
The 1982 United Nations Convention on the Law of the Sea
The United Nations Conference on Trade and Development
Watchkeeping for Seafarers 1978
Universal Time Conversion
The United Nations World Summit on Sustainable Development
xxxix
Table of Cases
All references are to paragraph numbers.
Actis Co. Ltd v. The Sanko Steamship Co. Ltd, The Aquacharm [1980] 2 Lloyd’s Rep. 237 (Com
Ct) .......................................................................................................................................... 13.23
Aello, The, see Agrimpex Hungarian Trading Company for Agricultural Products v. Sociedad
Financiera de Bienes Raices S.A.
Agamemnon, The, see T.A. Shipping Ltd v. Comet Shipping Ltd
Agrimpex Hungarian Trading Company for Agricultural Products v. Sociedad Financiera de
Bienes Raices S.A., The Aello (1960) 1 I.L.R. 623 ................................................................ 13.37
Alfred Trigon, The, see Piccinini v. Partrederiet Trigon II
Aquacharm, The, see Actis Co. Ltd v. The Sanko Steamship Co. Ltd
Armor, The, Cass. Rec. May 15 1923, Dalloz 1023-1-15 ............................................................ 12.31
Apollo, The, [1978] 1 Lloyd’s Rep. 200 ..................................................................... 13.23, 12.25, 13.38
Aquacharm, The, see Actis Co. Ltd v. The Sanko Steamship Co. Ltd
Barenbels, The [1985] 1 Lloyd’s Rep. ............................................................. 13.11, 13.14, 13.15, 13.17
Belcore Mar. Corp. v. Fratelli Moretti Cereali S.p.A., The Mastro Giorgis [1983] 2 Lloyd’s Rep. 66
......................................................................................................................................... 13.23, 13.27
Bily v. Arthur Young & Co. 834 P.2d .......................................................................................... 12.29
Black and Others v. Sumitomo Corporation and Others [1002] EWCA Civ. 1819 ................... 11.24
Bridgestone Maru (No.3), see Navigas International Ltd v. Trans-Offshore Inc.
C.A. Venezolana De Navegacion v. Bank Line, The Roachbank [1987] 2 Lloyd’s Rep. 498 ......
Camellia Tanker Ltd v. International Transport Workers Federation [1976] I.C.R. 274 ..........
Caparo Industries plc v. Dickman [1990] 2 A.C. 605 .................................................................
Clay v. A.J. Crump & Sons Ltd [1964] 1 Q.B. 533 (C.A.) ..........................................................
Commission of the European Communities v. Italian Republic, C-315/98 ................................
Constitution of the Maritime Safety Committee of IMCO Case [1960] I.C.J. Rep. 150 ...........
Court Line Ltd v. Dant & Russell Inc. (1939) 64 Ll. L.Rep. 212 ...............................................
13.26
1.44
12.21
12.20
7.7
1.14
13.23
Davies v. Parry [1988] B.T.L.C. 236 ........................................................................................... 12.32
Davis Contractors v. Fareham U.D.C. [1956] A.C. 696 ............................................................. 13.20
Delian Spirit, The, see Shipping Developments Corporation S.A. v. v/o Soyuzneftexport
Dimskal Shipping Co. S.A. v. International Transport Workers Federation, The Evia Luck [1992]
A.C. (H.L.) ............................................................................................................................
1.44
Donoghue v. Stephenson [1932] A.C. 562 ........................................................................... 12.19, 12.20
Dovermoss Ltd (1995) 159 J.P. 448 (C.A.) ................................................................................. 11.36
Eridania S.p.A. and Others v. Rudolf A. Oetker and Others, The Fjord Wind [2000] 2 Lloyd’s
Rep.191 .......................................................................................................................... 11.25, 12.35
Eurus, The, see Total Transport Corporation Corporation v. Arcadia Petroleum Ltd
Evia Luck, The, see Dimskal Shipping Co. S.A. v. International Transport Workers Federation
Fjord Wind, The, see Eridania S.p.A. and Others v. Rudolf A. Oetker and Others
Garden City, The, [1982] 2 Lloyd’s Rep. 382 ...............................................................................
xli
11.27
TABLE OF CASES
Garden City, The, (No. 2) [1984] 2 Lloyd’s Rep. 37 .................................................................... 11.27
Glencore Grain Ltd v. Flacker Shipping Ltd, The Happy Day [2001] Lloyd’s Rep. 754 .... 13.38, 13.40
Grand Champion Tankers Ltd v. Norpipe A/S and Others, The Marion [1984] 2 Lloyd’s Rep. 1 11.26
Great American Insurance Co. v. Bureau Veritas, The Tradeways II 338 F.Supp. 999, 1972
A.M.C. 1455 (S.D.N.Y.) 1972 ............................................................................ 12.6, 12.16, 12.32
Gulf Tampa Drydock Co. v. Germanischer Lloyd, 634 F.2d 874 (5th Cir. 1981) ............... 12.8, 12.33
Happy Day, The, see Glencore Grain Ltd v. Flacker Shipping Ltd
Hedley Byrne & Co. v. Heller & Partners Ltd (1963) 1 I.L.R. 485 (H.L.) ................................. 12.20
Herald of Free Enterprise, Report of the Count (No. 8074), Dept of Transport .................... 11.37–11.38
Hilton Oil Tansport v. Oil Transport Co. 659 So. 2d 1141 (C.A. Fla. 1995) ............................ 13.20
Hill v. Chief Constable of West Yorkshire (Hill) [1989] 1 A.C. 53 ............................................. 12.21
Home Office v. Dorset Yacht Co. Ltd [1970] 1 Lloyd’s Rep. 453 (H.L.) .................................. 12.20
Humberto Argondone v. Lloyd’s Register of Shipping, 11th Cir., Dade Co., Fla, June 4 1993 . 12.30
Ievoli Sun, The ...............................................................................................................................
9.39
INTERTANKO v. The State of Washington (October 19 1996) .................................... 10.178–10.179
Island Archon, The [1994] 2 Lloyd’s Rep. 227 ............................................................................. 13.34
Jalagouri, The, see Scindia Steamship Navigation Company Ltd Bombay v. Nippon Yusen Kaisha
Ltd
Kelman v. Livanos [1955] 1 W.L.R. 590 .....................................................................................
Kite and OLL Ltd (unrep) Winchester Crown Court, Dec 8 1994 .............................................
13.8
11.36
Laconian Confidence, The, [1997] 1 Lloyd’s Rep. 139 .......................................................... 12.25, 13.24
Lady Gwendolen, The, [1965] 1 Lloyd’s Rep. 335 ........................................................................ 11.27
Lauritzen v. Larsen 345 U.S. 571, 1953 A.M.C. 110 ......................................................... 1.7, 1.8, 1.30
Lewis v. Gray (1876) 3 Asp. M.C.C (C.P.) .................................................................................
6.3
Lloyd v. Guibert (1864) 33 L.J.R. 242 (Q.B.), aff’d L.R. 1 Q.B. 115 .........................................
1.30
Lotus case [1927] PCIJ, Series A, No.10 .....................................................................................
1.31
McDougall v. Aeromarine of Emsworth Ltd [1958] 3 All E.R. 431 ............................................
13.8
Manifest Shipping Co. Ltd v. Uni-Polaris Shipping Co. Ltd and L Réunion Européene, The Star
Sea [2002] UK HL 1; 2 W.L.R. 170 (H.L.) .................................................................. 11.11–11.13
Marc Rich & Co. A.G. and Others v. Bishop Rock Marine Co. Ltd, Bethmarine Co. Ltd and
Nippon Kaiyi Kyoki, The Nicholas H, [1995] 2 Lloyd’s Rep. 299 (H.L.) ..................... 12.19, 12.26
Mariola Marine Corp. v. Lloyd’s Register of Shipping, The Morning Watch [1990] 1 Lloyd’s Rep.
547 (Q.B.) .............................................................................................................................. 12.22
Martin Maritime Ltd v. Provident Capital Indemnity Fund Ltd, The Lydia Flag [1998] 2 Lloyd’s
Rep. 652 ................................................................................................................................. 11.25
Mastro Giorgis, The, see Belcore Mar. Corp. v. Fratelli Moretti Cereali S.p.A.
Meridian Global Funds v. Securities Commission [1995] 2 A.C. 500 ........................................ 11.38
Merritt, The, 17 Wall; 81 U.S. 582 (1873) ...................................................................................
1.5
Mexico, The, see Transgrain Shipping v. Global Transporte Oceanico S.A.
Mobil Oil Hong Kong Ltd and Dow Chemical (Hong Kong) Ltd v. Hong Kong United
Dockyards Ltd, The Hua Lien [1991] 1 Lloyd’s Rep. 309 (P.C.) ......................................... 12.21
Muirhead v. Industrial Tank Specialities Ltd [1986] 1 Q.B. 507 (C.A.) .................................... 12.21
Muncaster Castle, The, see Riverstone Meat Co. Pty Ltd v. Lancashire Shipping Co. Ltd
Muscat Dhows, Case of the: Great Britain v. France [1916] Hague Court Reports ................... 1.6, 1.8
Naim-Moklvan v. Attorney-General for Palestine [1948] A.C. 351 ............................................
National Carriers v. Panalpina ......................................................................................................
Navegacion Castro Riva, S.A. v. M/S Nordholm 178 F.Supp. 736; 1960 A.M.C. 1875 ............
Navigas International Ltd v. Trans-Offshore Inc., The Bridgestone Maru (No.3) [1985] 2 Lloyd’s
Rep. 62 ...................................................................................................................................
Nervion, The, (H.D. 1987: 152) Swedish Supreme Court, 1987 No. 152 [1987] NJA [Sweden]
885 ..........................................................................................................................................
Nicarague v. United States [1986] I.C.J.Rep. 14, ........................................................................
Nicholas H, The, see Marc Rich & Co. A.G. and Others v. Bishop Rock Marine Co. Ltd
Niobe Maritime Corporation v. Tradax Ocean Transportation S.A, The Niobe [1993] 2 Lloyd’s
Rep. 52; [1994] Lloyd’s Rep. 487 (C.A.); [1995] 1 Lloyd’s Rep. 579 (H.L.) .....................
Northern Fishing Company (Hull) Ltd v. Eddom and Others, The Norman [1960] 1 Lloyd’s Rep.
1 ..............................................................................................................................................
xlii
1.4
13.20
12.10
13.23
1.44
3.29
13.9
11.27
TABLE OF CASES
Nicaragua v. United States [1986] I.C.J.Rep. 14 .........................................................................
3.29
Nottebohm Case [1955] I.C.J. Rep.4 ....................................................................................... 1.12, 1.13
NWL Ltd v. Nelson [1979] I.C.R. 755 ........................................................................................
1.44
NWL Ltd v. Woods [1979] I.C.R. 744 ........................................................................................
1.44
Oil Spill by the Amoco Dadiz, In re, 1986 A.M.C. 1945 ..................................................... 12.17, 12.33
Otto Candies L.L.C. v. Nippon Kaiji Kyokai Corporation 346 F.3d 530 (U.S. App. 2003) ....... 12.28–
12.29
Pacific Charger—Report of Court, January 1982 ...........................................................................
1.39
Papera Traders Co. Ltd and Others v. Hyundai Merchant Marine Co. Ltd, The Eurasian Dream
[EWHC] 118 (Comm); [2002] 1 Lloyd’s Rep. 719 ...................................................... 11.17–11.19
Piccinini v. Partrederiet Trigon II, The Alfred Trigon [1981] 2 Lloyd’s Rep. 333 ........................
13.9
R v. Anderson (1868) L.R. 1 C.C.R. 161, 11 Cox C.C. 198 ......................................................
3.15
R v. Gordon-Finlayson, ex. p. An Officer [1941] 1 K.B. 171 ......................................................
3.4
Rank Enterprises Ltd and Others v. Gerard [2000] 1 Lloyd’s Rep. 403 ............................. 13.11, 13.14
Riverstone Meat Co. Pty Ltd v. Lancashire Shipping Co. Ltd, The Muncaster Castle [1961] A.C.
807 .................................................................................................................................. 11.25, 12.35
Rondel v. Worsley [1969] 1 A.C. 191 .......................................................................................... 12.21
Royal Embassy of Saudi Arabia v. Steamship Ioannis Martinos 1986 A.M.C. 769 (E.D.N.C.
1984) ...................................................................................................................................... 12.33
Royal Greek Government v. Minister of Transport (1948) 82 Ll L.Rep. 196 ............................ 13.22
Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corporation (Ryan Stevedoring) 350 US 124;
156 A.M.C. 9 (1955) ............................................................................................................. 12.16
Saudi Arabia v. Arabian American Oil Company (Aramco) Arbitration (1063) 23 L.L.R. 117 .
3.28
Saudi Independence, The, Hoge Raad, December 16 1983 [1985] Nederlands Jurisprudentie 311;
1984
Scandinavian Star, The, 11th Cir. Dade Co., Fla, 4 June 1993 ........................................... 12.30, 12.36
Schip en Schade 25 .......................................................................................................................
1.44
Scindia Steamship Navigation Company Ltd Bombay v. Nippon Yusen Kaisha Ltd, The Jalagouri
[2000] EWCA Civ. 93 (March 28 2000) .............................................................................. 13.27
Shipping Developments Corporation S.A. v. v/o Soyuzneftexport, The Delian Spirit [1971] 1
Lloyd’s Rep. 506 ........................................................................................................... 13.37, 13.38
Standard Oil Co. of New York v. Clan Line Steamers Ltd, The Clan Gordon (1923) 16. I.L.R. 367 11.27
Star Sea Transport Corporation of Monrovia v. Slater [1978] I.R.L.R. 507 ..............................
1.44
Star Sea, The, see Manifest Shipping Co. Ltd v Uni-Polaris Shipping Co. Ltd and Others
Stevenwson v. Nationwide Building Society (1984) 272 E.G. 663 ............................................. 12.32
Sundance Cruises Corp. v. American Bureau of Shipping, The Sundancer [1994] 1 Lloyd’s Rep.
183 ......................................................................... 12.15, 12.17, 12.18, 12.30, 12.33, 12.35, 12.36
Sundancer, The, see Sundance Cruises Corp. v. American Bureau of Shipping
T.A. Shipping Ltd v. Comet Shipping Ltd, The Agamemnon [1998] 1 Lloyd’s Rep. 675 ........... 13.36
Texan Company v. Hogarth Shipping Corp. 256 U.S. 619, 41 S.Ct.612, 65 L.Ed. 1123 (1921) 13.20
Thompson v. Farrer (1882) 4 Asp. M.L.C. 562 .......................................................................... 6.1, 6.2
Toledo, The, [1995] 1 Lloyd’s Rep. 40 .......................................................................................... 11.25
Total Transport Corporation v. Arcadia Petroleum Ltd, The Eurus [1996] 2 Lloyd’s Rep. 408;
[1998] 1 Lloyd’s Rep. 351 ..................................................................................................... 13.33
Transgrain Shipping v. Global Transporte Oceanico S.A., The Mexico I [1990] 1 Lloyd’s Rep.
507 .................................................................................................................................. 13.36, 13.39
United States v. Marine-Garcia 679 F.2d 1373, 1085 A.M.C. 1815 (11th Cir. 1982) ................
United States v. Passos-Paternina 918 F.2d 979, 1991 A.M.C. 719 ...........................................
1.4
1.5
Waught v. British Railways Board [1980] A.C. 521 .....................................................................
Wildenhus’s Case (1887) 120 U.S.1 .............................................................................................
William Rodman Sellers v. Maritime Safety Inspector, New Zealand C.A. 104/98 ....................
World Horizon [1993] 2 Lloyd’s Rep. 56 .....................................................................................
11.24
3.15
3.40
13.9
Yuen Kun Yeu v. Attorney-General [1988] 1 A.C. 175 (P.C.) ...................................................
12.21
xliii
Table of EC Legislation
All references are to paragraph numbers or to Appendices. Appendix numbers in italic type indicate where the material is
set out in full.
Directives—
93/75/EEC on minimum requirements for
vessels bound for and leaving EC ports
and carrying dangerous and polluting
goods ....................................................
6.13
94/57/EC on common rules and standards
for ship inspection and survey organizations (classification societies) ....... 6.14, 12.39,
12.40–50
art. 3 ......................................................... 12.44
art. 6 ......................................................... 12.48
art. 7(2) .................................................... 12.44
art. 12 ...................................................... 12.47
art. 12(1)(a) .............................................
7.5
art. 15 ...................................................... 12.50
art. 15(2), (4), (5) .................................... 12.43
art. 15(3) ..................................................
8.7
95/21/EC on port State control ........ 5.3, 5.68, 6.4,
7.1–7.43, 8.5, App. D1
art. 2(1) ....................................................
7.5
art. 2(9) .................................................... 13.41
art. 6(3) ....................................................
7.13
art. 7(b) ....................................................
7.31
art. 9 .........................................................
7.36
art. 9(7) ....................................................
7.15
art. 8 .........................................................
7.35
art. 10 ......................................................
7.15
art. 11(6) ..................................................
7.17
art. 12 ......................................................
7.12
art. 14 ......................................................
8.5
art. 15 ..................................... 7.38, 8.5. 8.7, 8.8
art. 17 ......................................................
7.40
art. 19 ......................................................
7.17
Annex I ....................................................
6.13
Annex II ..................................... 6.16, 7.20, 7.37
Annex III ................................... 6.17, 7.13, 7.20
Annex IV ............................................. 7.20, 7.24
95/21/EC on port State control—cont.
Annex V ..................................... 6.18, 7.13, 7.34
Annex VI .......................... 6.20, 7.20, 7.24, 7.25
Annex VIII ...............................................
8.5
Annex IX .................................................
6.19
Annex X ...................................................
7.40
Annex XI ................................... 7.29, 7.30, 7.31
Annex XII ................................................
7.41
96/40/EC .....................................................
6.4
98/25/EC on procedure applicable in the
absence of ISM Certificates .... 5.25, 6.4, 7.18,
App. D2
art. 9A ............................................... 7.18, 11.44
art. 11 ......................................................
7.19
art. 19 ......................................................
7.18
97/58/EC ..................................................... 12.41
98/42/EC ... 6.4, 6.13, 6.16, 6.20, 7.13, 7.20, 7.21,
7.25, 7.33, App. D3
99/35/EC
art. 2(a) and (b) .................................. 6.18, 7.34
99/97/EC ....... 6.4, 6,10, 6.13, 6.16, 7.27, App. D4
2001/96/EC .................................................
9.28
2001/105/EC ...................................... 12.41, 12.42
2001/106/EC ...... 6.4, 6.16, 6.17, 6.18, 6.19, 6.20,
7.28, 8.5, App. D5
2002/59/EC .................................................
9.31
art. 9 ......................................................... 9.103
Annex II (1) ............................................. 9.103
2002/84/EC .................... 6.4, 7.43, 12.41, App. D6
EC Treaty
art. 169 ....................................................
7.6
Regulation (EC) 417/2002 ................. 9.107, 9.108
Regulation (EC) 1406/2002 ........................ 9.112
Regulation (EC) 1726/2003 ........................ 9.108
Regulation (EC) 2009/2002 ........................
7.43
xlv
Table of National Legislation
All references are to paragraph numbers or to Appendices. Appendix numbers in italic type indicate where the material is
set out in full.
ICELAND
BELGIUM
Belgian Shipping Act ...................................
5.58
Ship Survey Act No. 35/1993 .....................
ITALY
CANADA
Arctic Waters Pollution Act 1970 ...............
Canadian Shipping Act ...............................
5.66
3.43
5.59
Law No. 128 ............................................... 7.6, 7.7
Ministerial Decree 432, 19/4/2001 ..............
5.68
NETHERLANDS
CROATIA
Law on Administrative Procedure ..............
Port State Control Act ................................
5.69
5.60
NEW ZEALAND
DENMARK
Safety at Sea Act .........................................
Protection of the Marine Environment .......
Maritime Transport Act 1994 ................ 3.45, 3.47
s.21 ............................................ 3.27, 3.48, 3.49
5.61
5.61
NORWAY
Act of June 9 1903, No. 7, relating to Public
Control of the Seaworthiness of Ships
(the Seaworthiness Act) .......................
FINLAND
Act on the Supervision of the Safety of Ships
(370/1995) ...........................................
5.70
5.62
PORTUGAL
Decree-law No. 195/98 of July 10 ..............
FRANCE
Decree No. 84–810 .....................................
5.63
5.72
SLOVENIA
Administrative Procedure Law ...................
5.74
GERMANY
Code of Administrative Procedure .............
GREECE
Presidential Decree 88/97 ...........................
SPAIN
5.64
5.65
Law 27/1992 ...............................................
Loy 40/92 de Regimen Juridicio de la Administraciones Publicas y del Procadimiento Administrative Común ............
Royal decree 9/2002, No. 24343 ................
xlvii
9.29
5.75
9.27
TABLE OF NATIONAL LEGISLATION
Royal decree 995/2003 regulations for safe
loading and unloading of bulk carriers
in Spanish ports ...................................
Royal decree 210/2004, vessels carrying
dangerous goods or pollutants .............
Royal decree 253/2004, measures for prevention of maritime pollution ..............
9.28
9.29
9.35
UNITED KINGDOM
Arbitration Act 1996 ...................................
6.32
Employment Act 1980
Harbours Act 1964 ......................................
6.11
Health and Safety at Work etc Act 1974 .... 12.34
Marine Insurance Act 1906
s.17 .......................................................... 11.11
s.39(1) ...................................................... 11.14
s.39(5) ................................... 11.9, 11.14, 13.41
Merchant Shipping Act 1873 ......................
6.3
s.12 ..........................................................
6.4
Merchant Shipping Act 1876 ......................
6.1
s.6 ............................................................
6.2
s.10 ..........................................................
6.2
Merchant Shipping Act 1988
Merchant Shipping Act 1995 ............ 5.78, 6.4, 6.9
s. 95 ....................................................... 6.6, 6.31
s. 96 .........................................................
6.31
s. 259 .......................................................
6.31
Merchant Shipping and Maritime Security
Act 1997
Sch.I .........................................................
6.9
Merchant Shipping (Fees) Regulations 1995
..............................................................
6.28
Merchant Shipping (International Safety
Management (ISM Code) Regulations
1998, S.I. 1998 No. 1561 ......... 11.29, 11.30–
11.35, 11.45
reg. 17 ...................................................... 11.35
reg.19(1) .................................................. 11.30
reg.19(2) .................................................. 11.32
reg. 19(3) ................................................. 11.32
reg. 19(4) ................................................. 11.33
reg. 19(5) ................................................. 11.34
reg. 19(6) ................................................. 11.35
reg. 20 ...................................................... 11.35
Merchant Shipping (Port State Control)
Regulations 1995, S.I. No. 3128 ...... 5.78, 6B,
App. C1
Part I
reg. 7 ........................................................
6.18
reg. 9 ........................................................
6.20
regs. 10-12 ...............................................
6.29
regs. 11 and 12 ........................................
6.34
reg.12 .......................................................
6.34
reg. 11(3) .................................................
6.31
reg. 11(6) .................................................
6.30
reg.13 .......................................................
6.26
reg. 13(5) .................................................
6.23
reg. 14(3) .................................................
6.32
reg. 14(4) .................................................
6.32
reg. 15(1) .................................................
6.11
Merchant Shipping (Port State Control)
(Amendment) Regulations 1998, S.I.
1998 No. 1433 ............ 6.4, 6.7, 6.26, App. C2
Merchant Shipping (Port State Control)
(Amendment) Regulations 2000
Merchant Shipping (Port State Control)
(Amendment No. 2) Regulations 1998,
S.I. 1998 No. 2198 ...................... 6.4, App. C3
Merchant Shipping (Port State Control)
(Amendment)
Regulations
2001,
S.I. No. 2349 ............................... 6.4, App. C4
Merchant Shipping (Port State Control)
(Amendment) Regulations 2003, S.I.
2003 No. 1636 .. ............................... 6.4, 6.25,
App. C5
Part I ........................................................
6.5
Part II .......................................................
6.5
Part III .....................................................
6.5
Merchant Shipping (Port State Control)
(Amendment) Regulations 2003 (MSN
1775 (M)) ........................................... App. C6
Pilotage Act 1987 ........................................
6.11
Sale of Goods Act 1979 ...................... 13.18, 13.19
s. 12(2)(b) ................................................ 13.18
s. 61(1) ..................................................... 13.18
Unfair Contract Terms Act 1977 ............... 12.32
s.1.1 ......................................................... 12.32
s. 2(1) ....................................................... 12.32
s.11.(3) .................................................... 12.32
UNITED STATES
Act of March 1 1917 ...................................
1.3
Inland Navigation Rules (33 USC 2072) ... 10.17
Jones Act 1920 (Merchant Marine Act) 46
U.S.C. app. §688 .................................
1.7
Magnuson Stevens Fishery Conservation
and Management Act .................. 10.12, 10.16
Maritime Transportation Security Act 2002
(MTSA 2002) ......... 10.4, 10.7, 10.10, 10.12,
10.31–10.51, 10.72, 10.83, 10.84,
10.126, 10.138
Neutrality Act 1939 .....................................
1.37
Prohibition Act 1922 ...................................
1.36
Oil Pollution Act 1990 (OPA 90) .... 9.105, 10.178
s. 1018 ...................................................... 10.178
Ports and Waterways Safety Act ................. 10.11
Special Local Regulations (33 CFR 100.35) 10.12
Water Pollution Control Act ....................... 10.15
Code of Federal Regulations
19 CFR
§4.7 .......................................................... 10.25
33 CFR ............................................... 10.12, 10.14
§3.35 ........................................................ 10.24
§100.35 .................................................... 10.12
§101.105 .................................................. 10.85
§104 ......................................................... 10.85
§104.120, 104.140 ................................... 10.85
§104.405 .................................................. 10.85
§§104.240, 104.255, 104, 292, 104.295 . 10.80
§§155, 156, 159 ........................................ 10.104
xlviii
TABLE OF NATIONAL LEGISLATION
33 CFR—cont.
§160 ........................ 10.25, 10.33, 10.72, 10.153
§160.101 .................................................. 10.12
§106.203 ................................................... 10.190
§164 ................................... 10.72, 10.87, 10.122
§164.35 .................................................... 10.25
§164.55 .................................................... 10.12
46 CFR
§1.03 ......................................................... 10.165
§2.01–6 ..................................................... 10.189
§4.03-2 ..................................................... 10.186
§4.40 ......................................................... 10.186
§154.7 ...................................................... 10.14
49 CFR
§171.8 ...................................................... 10.14
§172.101 .................................................. 10.14
§173.403 .................................................. 10.14
§173.50 .................................................... 10.14
§176.415 .................................................. 10.14
49 CFR—cont.
United States Code
14 USC
§19/33 ...................................................... 10.12
§89 ........................................................... 10.72
18 USC 7 ............................................ 10.17, 10.22
33 USC ....................................................... 10.11
§1221 ....................................................... 10.22
§1223 ....................................................... 10.11
§1226 ....................................................... 10.12
§1231 ....................................................... 10.12
§1232 ....................................................... 10.12
§2072 ....................................................... 10.17
46 USC
§1211–12124 ........................................... 10.22
§12301–12309 ......................................... 10.22
§70101 (6) ............................................... 10.78
50 USC
§191 ......................................................... 10.72
xlix
Table of International Conventions, Agreements and Codes
All references are to paragraph numbers or to Appendices. Appendix numbers in italic type indicate where the
material is set out in full.
Conditions for Registration of Ships, see
United Nations Convention on Conditions etc.
Digest of Justinian .......................................
2.1
Establishment of International Fund for
Compensation for Oil Pollution Damage, see Fund
Facilitation Convention 1965 ... App. A1, App. A2
Food and Catering (Ship’s Crew) Convention 1946 (ILO No. 68) .......................... 5.13
art. 5 ........................................................
5.13
Fund Convention 1971 (International Convention on the Establishment of an
International Fund for Compensation
for Oil Pollution Damage 1971) .. .......... 9.52,
App. A1, App. A2
Fund Convention 1992 ........ 9.1, 9.23, 9.52, 9.53,
9.55, 9.80, App. A1,
App. A2
Fund Protocol 1976 .. .............................. App. A1,
App. A2
Fund Protocol 2003 .. .............................. App. A1,
App. A2
Geneva Convention and Statute on the
International Regime of Maritime Ports
1923 .....................................................
3.27
art. 6(2) ...................................................
1.5
art. 16 ......................................................
3.28
Geneva Convention on the High Seas 1958
............................ 1.5, 1.8, 1.9, 1.13, 1.22, 3.2
art. 1 ........................................................
3.21
art. 5 .. ........................ 1.8, 1.29, 1.13, 1.21, 3.6,
3.13
art. 6
art. 22 ......................................................
3.5
art. 24 ......................................................
3.18
Hague Memorandum of Understanding on
Port State Control 1978 ......................
5.1
Hague Rules ........................... 11.17, 11.18, 12.37
Hague-Visby Rules ................. 11.15, 11.17, 11.18
HNS 1996 (Liability and Compensation for
Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea) ......... 2.23, App. A1, App. A2
IBC Code (International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk)
(IMO) ......................................... 5.45, 10.135
Abuja MOU 1999, see West and Central
African MOU 1999
Accommodation of Crews Convention
(Revised) 1949 (ILO No. 92) .............
5.13
Accommodation and Crews (Supplementary Provisions) Convention 1970 (No.
133) .....................................................
5.13
Anti-fouling Convention 2001 .. App. A1, App. A2
Athens Convention relating to the Carriage
of Passengers and their Luggage by Sea,
see PAL
Black Sea MOU 2000 (Port State Control in
the Black Sea Region) ................ 5H, App. B3
Brussels Convention for the Unification of
Certain Rules relating to Penal Jurisdiction in Matters of Collision or other
Incidents of Navigation 1952 ........... 3.2, 3.41
Bunkers Convention 2001 ........ App. A1, App. A2
BWM Convention .................................... App. A2
Caribbean MOU 1996 (Port State Control
in the Caribbean Region) ........... 5D, App. B3
s. 3.1 ........................................................ 5.162
s.3.2 ......................................................... 5.163
s.3.3 ......................................................... s.163
Annex 1A ........................................... 5.162, 5.163
Annex 1B ........................................... 5.162, 5.163
Civil Liability for Bunker Oil Pollution
Damage 2001 ......................................
2.23
Civil Liability for Oil Pollution Damage, see
CLC
Civil Liability in the Field of Maritime
Carriage of Nuclear Material 1971 ........ 2.32,
App. A1, App. A2
CLC 1969 (Protocol to the International
Convention on Civil Liability for Oil
Pollution Damage) ........ 7.57, 9.52, App. A1,
App. A2
CLC 1992 (1992 Protocol to the International Convention on Civil Liability
for Oil Pollution Damage 1992) ..... 5.12, 6.9,
6.18, 7.47, 9.1, 9.23, 9.53, 9.80,
App. A1, App. A2
CLC Protocol 1976 .................. App. A1, App. A2
Code of Safety for Caribbean Cargo Ships
5.157
Collision Regulations 1948 .........................
2.21
Collision Regulations 1960 .........................
2.21
Collision Regulations 1972 ......... 3.42, 5.12, 5.19,
5.121, 5.139, 5.158, 5.169,
5.184, 5.197, 5.201, 6.0, App.
A1, App. A2
r. 10 ................................................ 5.175, 5.190
li
TABLE OF INTERNATIONAL CONVENTIONS , AGREEMENTS AND CODES
International Ship and Port Facilities
Security Code (ISPS) ..... 4.8, 4.9, 4.10, 4.13,
4.14–4.18, 4.43, 10.4, 10.7,
10.10, 10.11, 10.21, 10.33,
10.36–10.39, 10.42, 10.45–10.51,
10.72, 10.79, 10.80–10.84, 10.89,
10.113, 10.117, 10.129
International Transport Workers Federation Collective Agreement .................
1.44
Intervention Convention 1969 (Intervention on the High Seas in Cases of Oil
Pollution Casualties) .. 3.7, App. A1, App. A2
Intervention Protocol 1983 ....... App. A1, App. A2
ISM Code 1994 (International Management Code for the Safe Operation of
Ships and for Pollution Prevention) ....... 2.22,
4.24, 4.28, 5.90, 7.18, 7.19, 10.3,
10.11, 10.99, 10.137,
10H, 10.182, 11.1–11.49,
12.42
Latin American Agreement on Port State
Control 1992, see Viña del Mar Agreement 1992
Law of the Sea 1982, see UNCLOS 1982
LC 1972, see London Convention on the
Prevention of Marine Pollution by
Dumping of Wastes and Other Matter
1972
LC Protocol 1996, see London Convention
Protocol 1996
Liability and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substances by Sea
1996, see HNS 1996
Limitation of Liability for Maritime Claims
1976 ............ 11.26, 11.28, App. A1, App. A2
Limitation of Liability for Maritime Claims
Protocol 1996 .................... App. A1, App. A2
Limitation of the Liability of Owners of
Sea-going Ships 1957 .. ......................... 11.26,
11.28
LLMC, see Limitation of Liability for Maritime Claims
Load Lines 1966 ........ A.1, 3.42, 4.19, 5.12, 5.47,
5.107, 5.121, 5.134, 5.139,
5.158, 5.169, 5.184, 5.197,
5.201, 6.9, 10.11, 10.87, 10.117,
11.131, 12.12, 12.42, 13.5,
App. A1, App. A2
arts 16, 16 ...............................................
4.19
art. 21 ........................................ 4.6, 4.19, 10.11
Ch 212 .................................................... 5.134
Load Lines Protocol 1988 ......... 2.27, 5.12, 5.139,
App. A1, App. A2
London Convention on the Prevention of
Marine Pollution by Dumping of
Wastes and Other Matter 1972
(LC) ................................... App. A1, App. A2
London Convention Protocol 1996 ........ App. A1,
App. A2
Maritime Search and Rescue 1979 (SAR) ..... 3.44,
App. A1, App. A2
IGC Code (International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk) IMO) ..... 5.46,
10.136
ILO Conventions ................................... 5.52, 13.2
No.7, see Minimum Age (Sea) Convention 1920
No.58, see Minimum Age (Sea) Convention (revised) 1936
No.73, see Medical Examination (Seafarers) Convention 1946
No.138, see Minimum Age Convention
1973
No.147, see Merchant Shipping (Minimum Standards) Convention 1976
ILO Protocol 1996 .....................................
5.13
IMDG Code (International Maritime
Dangerous Goods Code) ....................
2.29
IMO/IMCO Convention 1948 ..... 1.16, 2.4– 2.14,
2.25, 2.27, 12.12, 12.13, 13.1,
App. A.1, App. A2
art. 1 ..................................................... 2.7, 2.16
art. 15 ......................................................
2.14
art. 28(a) ................................... 1.16, 1.17, 1.20
art. 32 ......................................................
2.16
art. 33 ......................................................
2.16
Amendments
1984 ........................................................
2.18
1991 ........................................................
2.19
Indian Ocean MOU 1988 (Port State Control for the Indian Ocean Region ..... 5F, App.
B3
s.3.3 ......................................................... 5.186
s.3.6.3 ...................................................... 5.191
s.3.7 ......................................................... 5.191
s.3.8.1 ...................................................... 5.191
s.3.13 ....................................................... 5.193
Annex 2 .......................................... 5.187, 5.191
Annex 3 ..................................................... 5.187
INMARSAT Convention 1976 ...... App. A1, App.
A2
INMARSAT Operating Agreement 1976 ...... App.
A1, App. A2
Inter-Governmental Maritime Consultative
Organisation (IMCO) Convention
1948, see IMO/IMCO Convention
1948
International Convention for the Prevention
of Pollution by Oil 1954, see OILPOL
International Code of Signals .....................
2.21
International Management Code for the
Safe Operation of Ships and for Pollution Prevention 1994, see ISM Code
International Maritime Dangerous Goods
Code, see IMDG Code
International Maritime Organization Convention 1948, see IMO Convention
1948
International Regulations for Preventing
Collisions at Sea, see Collision
Regulations
International Safety Management Code
1994, see ISM Code 1994
lii
TABLE OF INTERNATIONAL CONVENTIONS , AGREEMENTS AND CODES
MARPOL 1973/1978 (Prevention of Pollution from Ships) ........ A.1, 2.22, 2.27, 2.39,
2.45, 3.24, 3.38, 4.5, 4.20, 4.25,
5.13, 5.19, 5.121, 5.139, 5.158,
5.169, 5.175, 5.184, 5.190,
5.197, 5.201, 6.9, 7.18, 9.65,
9.106, 10.72, 10.87, 10.117,
12.42, 13.5
art. 5 ......................... 4.5, 4.6, 4.20, 4.25, 10.11
art. 6 ............................................ 3.24, 4.6, 4.25
Annex I ....... 4.20, 5.48, 10.104, 13.2, App. A1,
App. A2
reg. 13 .....................................................
9.1
reg. 13F ............................................ 9.65, 9.110
reg. 13G ....... 7.34, 9.14, 9.26, 9.65–9.68, 9.71,
9.110
reg. 13H ............................................. 9.70, 9.73
Ch II ........................................................ 5.134
reg. 9(6) ...................................................
5.80
reg. 8A ......................................... 4.6, 4.21, 4.25
Annex II ...... 4.20, 5.49, 10.104, 13.2, App. A1,
App. A2
reg. 15 ......................................... 4.6, 4.20, 4.25
Annex III ...................... 4.20, App. A1, App. A2
reg. 8 ..................................................... 4.6, 4.20
Annex IV ...................... 4.20, App. A1, App. A2
Annex V ...... 4.20, 5.50, 10.104, App. A1, App.
A2
reg. 8 ........................................... 4.6, 4.20, 4.25
Annex VI .................. 10.188, App. A1, App. A2
MARPOL Protocol 1978 ...... 2.22, 2.31, 6.9, 7.18
Medical Examination (Seafarers) Convention 1946 (ILO No. 73) ......................
5.13
Mediterranean MOU 1997 (Port State
Control in the Mediterranean Region)
..................................................... 5E, App. B3
s.3.6.3 ...................................................... 5.176
s.3.7 ......................................................... 5.176
s.3.8.1 ...................................................... 5.176
s.3.13 ....................................................... 5.178
Annex 7 ................................................... 5.176
Annex 8 ................................................... 5.180
Memorandum of Understanding on Port
State Control
Asia-Pacific Region, see Tokyo MOU
Black Sea Region, see Black Sea MOU
Caribbean Region, see Caribbean MOU
Europe, see Paris MOU
Indian Ocean Region, see Indian Ocean
MOU
Latin America, see Viña del Mar
Agreement
Mediterranean Region, see Mediterranean
MOU
West and Central Africa Region, see Abuja
MOU
Merchant Shipping (Minimum Standards)
Convention 1976 (ILO No. 147) ........... 3.42,
4.23, 5.1, 5.12, 5.139, 5,158,
5.169, 5.184, 5.197, 5.201, 6.9,
10.87, 10.100, 10.134
art. 4 ................................................. 4.23, 10.11
Minimum Age Convention 1973 (ILO No.
138) .....................................................
5.13
Minimum Age (Sea) Convention 1920 (ILO
No. 7) ..................................................
5.18
Minimum Age (Sea) Convention (Revised)
1036 (ILO No. 58) ..............................
5.13
Nuclear Convention 1971, see Civil Liability
in the Field of Maritime Carriage of
Nuclear Material 1971
Officers Competency Certificates Convention 1936 (ILO No. 53) ......................
5.13
arts 3, 4 ....................................................
5.13
Oil Pollution Preparedness, Response and
Cooperation 1990, see OPRC 1990
OILPOL 1954 (Prevention of Pollution of
the Sea by Oil) ................................ 2.21, 3.23
art. XXI ...................................................
2.5
OPRC 1990 (Oil Pollution Preparedness,
Response and Cooperation) .... App. A1, App.
A2
OPRC-HNS Protocol 2000 (Protocol on
Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances) .......... App. A1,
App. A2
PAL 1974 (Carriage of Passengers and their
Luggage by Sea, Athens Convention) ..... App.
A1, App. A2
PAL Protocol 1976 ................... App. A1, App. A2
PAL Protocol 1990 ................... App. A1, App. A2
PAL Protocol 2002 ................... App. A1, App. A2
Paris Memorandum of Understanding on
Port State Control 1982 (Paris MOU)
.... A.1, 5A, 7.4, 7.18, 7.28, 7.32, 7.33, 11.47,
11.48, 12.45, 13.2, 13.5, App.
B.1, App. B3
s.2.1 .........................................................
7.5
s.2.3 .........................................................
7.5
s.3.1 .........................................................
5.26
s.3.9.1 ......................................................
5.39
s.3.9.2 ......................................................
5.38
s. 3.10.3 ...................................................
5.54
s.3.10.4 ....................................................
5.92
s.3.10.5 ............................................... 5.85, 5.86
s.3.12 .......................................................
5.88
s.3.12.3 ....................................................
5.86
s.3.15 .......................................................
5.56
s.3.16 .......................................................
5.56
Annex 1
s.1.1 .................................................... 5.25, 5.29
s.2 ............................................................
5.26
s.4 ............................................................
5.29
s.5.5 .........................................................
7.26
s.8.2 .........................................................
5.31
s.8.3 .........................................................
5.87
s.9.3.2 ......................................................
5.4
s.9.3.3 ......................................................
5.42
Annex 3 ...................................................
5.86
Annex 5 ................................................... 5.102
Prevention of Accidents (Seafarers) Convention 1970 (ILO No. 134) ...............
5.13
arts 4, 7 ....................................................
5.13
Prevention of Pollution from Ships 1973/
1978, see MARPOL 1973/1978
Prevention of Pollution of the Sea by Oil
1954, see OILPOL 1954
liii
TABLE OF INTERNATIONAL CONVENTIONS , AGREEMENTS AND CODES
SOLAS Protocol 1978—cont.
art II(3) ....................................................
4.5
SOLAS Protocol 1988 ................................
5.12
Space Requirements for Special Trade Passenger Ships Protocol 1973 .. App.A1, App.A2
Special Trade Passenger Ships Agreement
1971 ................................... App. A1, App. A2
Stockholm Agreement 1996 ..... App. A1, App. A2
Standards of Training, Certification and
Watchkeeping for Seafarers 1978
(STCW 1978) ..... 2.22, 2.31, 3.24, 3.42, 4.5,
4.20, 5.12, 5.18, 5.51, 5.99,
5.107, 5.121, 5.139, 5.158,
5.169, 5.184, 5.197, 5.201, 6.9,
7.18, 7.25, 10.133, 13.2, App.
A1, App. A2
art. X ............................................. 4.5, 4.6, 4.20
Ch X ........................................................ 5.134
STCW 95 ......... 5.99, 10.11, 10.72, 10.87, 10.98,
App. A1, App. A2
Stockholm Agreement 1996 ..... App. A1, App. A2
STP Agreement 1971, see Special Trade
Passenger Ships Agreement 1971 .... App. A1,
App. A2
STP Protocol 1973, see Space Requirements
for Special Trade Passenger Ships Protocol 1973 ............................................
App. A1, App. A2
SUA, see Suppression of Unlawful Acts
Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on
the Continental Shelf Protocol 1988 ...... App.
A1, App. A2
Suppression of Unlawful Acts against the
Safety of Maritime Navigation 1988 ...... App.
A1, App. A2
Tokyo Memorandum of Understanding
1993 (Port State Control in the AsiaPacific Region) ..... 5C, 11.47, 11.48, App. B3
s.1.4 ......................................................... 5.140
s.3.3 ......................................................... 5.141
s.3.7 ......................................................... 5.146
s.3.8 ......................................................... 5.146
s.3.15 ....................................................... 5.147
Tonnage Measurement of Ships 1969 ........... 2.32,
4.22, 5.12, 5.121, 5.139, 5.184,
5.197, 5.201, 6.9, App. A1, App.
A2
art. 12 .......................................... 4.6, 4.22, 4.25
Treaty of Versailles 1919 ............................
1.30
UK-Japan Treaty of Commerce, Establishment and Navigation 1962 ..................
3.29
UNCLOS 1982 (United Nations Convention on the Law of the Sea) ..... 1.3, 3.31, 13.5
art. 7, 8 ....................................................
3.13
art 11 .......................................................
3.2
arts 17, 18 ...............................................
3.16
art. 19 ......................................................
3.16
art. 21 .......................................... 3.8, 3.16, 3.42
art. 24 ......................................................
3.16
arts 27, 28 ........................................... 3.10, 3.17
art. 33 ................................................. 3.18, 3.19
art. 36 ......................................................
3.10
art. 39 ......................................................
3.10
art. 40 ......................................................
3.10
Protocol on Preparedness, Response and
Cooperation to Pollution Incidents by
Hazardous and Noxious Substances
2000, see OPRC-HNS Protocol 2000
Safe Containers 1972 (CSC) .... App. A1, App. A2
Safe Containers amendments 1992 ........ App. A1,
App. A2
Safety of Fishing Vessels Protocol 1993 .. App. A1,
App. A2
Safety of Life at Sea, see SOLAS
Salvage Convention 1989 ......... App. A1, App. A2
SAR 1979, see Maritime Search and Rescue
1979
Seafarers’ Hours of Work and Manning of
Ships Convention 1996 (No. 180) ......
5.13
Slavery Convention .....................................
3.5
SOLAS (Safety of Life at Sea) .... A.1, 5.107, 10.3,
10.117, 10.130
SOLAS 1914 ............................. 2.2, 3.22, 4.4, 4.5
art. 61 ......................................................
4.4
SOLAS 1929 ...............................................
5.1
art. 54 ......................................................
4.4
SOLAS 1948 ............................................ 2.5, 2.21
SOLAS 1960 ............................ 2.21, 2.24, 10.179
Ch II-2 .................................................... 10.181
SOLAS 1974 ...... 2.22, 2.27, 3.24, 3.42, 4.5, 4.7–
4.18, 5.12, 5.18, 5.121, 5.139,
5.158. 5.169, 5.184, 5.197,
5.201, 6.9, 7.18, 7.26, 10.85,
10.87, 10.139, 10.179, 10.181,
12.42, 13.5, App. A1, App. A2
art. I .........................................................
2.36
art. III ......................................................
2.36
Annex ......................................................
2.27
Ch I-1 ......................................................
4.7
reg. 19 .............................. 4.6, 4.7, 5.134, 10.11
Ch II-2 .................................... 4.7, 10.91, 12.13
Ch III ......................................................
4.7
Ch IV .......................................................
4.7
Ch V ................ 4.7, 4.8, 9.31, 9.61, 9.64, 10.15
reg. 10 ..................................................... 9.101
reg. 11 .....................................................
9.99
Ch VI .......................................................
4.7
reg. 5 ....................................................... 10.103
reg. 5.6 ....................................................
5.97
reg. 7 .......................................................
4.29
Ch VII .....................................................
4.7
reg. 6 ....................................................... 10.103
reg. 6.6 ....................................................
5.97
Ch VIII ....................................................
4.7
Ch IX ....... 4.7, 4.13, 4.14, 4.28, 10.99, 10.150,
11.29, 11.40
reg. 6 ....................................................... 4.6, 4.7
Ch X ........................................................
4.7
Ch XI ........ 4.7, 4.8, 4.12, 4.14–4.18, 4.43, 6.5,
10.7, 10.11, 10.21, 10.33, 10.72,
10.79, 10.80, 10.83, 10.84,
11.10, 12.13
reg. 4 ....................................................... 4.6, 4.7
Ch XII .....................................................
4.7
SOLAS Protocol 1978 ......... 2.31, 3.24, 4.5, 5.12,
5.121, 5.139, 5.158, 5.169,
5.184, 5.201, App. A1, App. A2
liv
TABLE OF INTERNATIONAL CONVENTIONS , AGREEMENTS AND CODES
United Nations Convention on Conditions
for Registration of Ships 1986—cont.
art. 9 ........................................................
1.25
art. 10 ......................................................
1.26
art.11 .......................................................
1.26
art.14 .......................................................
1.26
art. 91 ......................................................
1.13
United Nations Convention on the Law of
the Sea 1982, see UNCLOS 1982
US–Federal Republic of Germany Treaty
on Friendship, Commerce and Navigation 1954
art. VII .....................................................
1.28
art XIX (1) ..............................................
1.29
art. XX(1) ...............................................
3.13
Vienna Convention on the Law of Treaties
1969
art. 12.1 ...................................................
2.33
art. 14(2) .................................................
2.34
art. 18(a) .................................................
2.33
art. 26 ......................................................
2.35
art. 27 ......................................................
2.35
Viña del Mar Agreement 1992 (Latin
American Agreement on Port State
Control ........................................ 5B, App. B3
s.3.11 ....................................................... 5.132
s.4.2 ......................................................... 5.128
s.4.3 ......................................................... 5.128
Annex 1
s.1.2 ......................................................... 5.130
s.1.2.4 ...................................................... 5.130
s.1.2.5 ...................................................... 5.130
s.3.2.1 ...................................................... 5.129
2.3.2.2 ..................................................... 5.129
s.3.2.3 ...................................................... 5.129
Annex 2 ................................................... 5.131
Annex 3 ................................................... 5.131
West and Central African MOU 1999
(Abuja MOU) ............................ 5G, App. B3
UNCLOS 1982—cont.
art. 42 ......................................................
3.10
art. 44 ......................................................
3.10
art. 54 ......................................................
3.10
art. 55 ......................................................
3.18
art. 56 ......................................................
3.10
art. 87 ......................................................
1.3
art. 86 ......................................................
3.21
arts 88–115 ..............................................
3.10
art. 90 ................................................. 1.33, 3.21
art. 91 ............................................ 1.8, 1.9, 1.22
art. 92 ................................................... 3.6, 3.21
art. 94 .......................................... 1.33, 3.7, 3.21
art. 97 ................................................... 3.2, 3.41
art. 98 ................................................. 3.44, 3.49
art. 99 ......................................................
3.5
arts 109–111 ............................................
3.10
art. 110 ....................................................
3.5
art.194 .....................................................
3.8
art. 211 ............ 3.8, 3.20, 3.32, 3.38, 3.44, 13.5
art. 217 ....................................................
1.34
art. 218 .... 1.5, 1.34, 3.8, 3.26, 3.32–3.37, 3.38,
3.44, 13.5
art. 219 .......... 3.10, 3.32, 3.37, 3.44, 3.50, 13.5
art. 220 ....................................................
3.10
art. 226 ....................................................
3.38
art. 234 ....................................................
3.44
art. 237 ....................................................
3.39
art. 311 ....................................................
3.39
Part XII ....................................... 3.8, 3.33, 3.44
United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances 1988 .......................
3.7
United Nations Convention on Conditions
for Registration of Ships 1986 ........ 1.8, 1.23–
1.27
art. 2, 5 ....................................................
1.24
art. 7 ........................................................
1.25
lv
Introduction
Port State control (PSC) is the control of foreign flagged ships in national ports. As
stated in nearly all the literature about port State control, in an ideal world port State
control would not be necessary. Port State control stays in practice because the control
systems used by the other partners in the shipping world have proven ineffective in
eradicating all substandard vessels from the seas. However, port State control is not and
can never be a substitute for the proper exercise of flag State responsibility. The primary
responsibility to safeguard against substandard ships lies with the flag States. It is when
flag States fail to meet their commitments that the port State comes into play. The
control measures taken under port State control are supposed to be regarded as
complementary to national measures taken by flag State administrations and are
intended to provide assistance to these administrations.
Although the Paris Memorandum of Understanding on Port State Control (Paris
MOU)—the earliest regional agreement of this kind—was signed in 1982, maritime
authorities of most States already had specific powers to exercise port State control
under the conventions to which they became parties, such as the International
Convention for the Safety of Life at Sea (SOLAS); the International Convention on
Load Lines 1966 (LL 66); the International Convention for the Prevention of Pollution
From Ships, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) and
the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW 1978). Therefore, the powers used by Port State Control
Officers (PSCOs) are not new; it is the willingness to use these powers which is new.
Starting with the Paris MOU, port State control became more organized and
widespread and now there is a Memorandum of Understanding (MOU) on port State
control covering almost every part of the world.
The Paris MOU has been a model upon which other regions of the world base their
port State control agreements. All regional port State control agreements are substantially similar and follow the model of the 1982 Paris MOU. At present there are eight
regional agreements on port State control and a worldwide network continues to
develop. Does port State control have a uniform application in all member States?
Unfortunately, port State control is not homogenous, sometimes not even within the
same region of the MOU. As the number of MOUs increases, so does the number of
countries entitled to PSC inspections. This leads to more variations in the standard of
inspectors and inspections. Consequently, even the establishment of an internationally
uniform standard of competence of inspectors will not necessarily provide a solution, as
such a standard could again be subject to different interpretations. There are
requirements for a Port State Control Officer (PSCO) but a PSCO is not required to sit
any standardized examination and does not need to have any prior experience at sea. In
1
A.1
A.1
A.2
INTRODUCTION
principle the PSCO should have no commercial interest in the port of inspection or the
ships inspected in that region.
Why is the role of PSCOs so important? Despite the guidelines provided to assist a
PSCO in making the judgement to detain a vessel, there is a subjective element in a
PSCO’s judgement that deficiencies found are so clearly hazardous as to warrant a
detention. Therefore, the decision to detain a vessel is based on the profesional
judgement of a PSCO.
An unduly detained ship will be entitled to compensation and can appeal against the
detention if wrongful detention can be proved. However, the legislation provided for
appeal procedures and possible compensation for the owner and their legal position is
complex and varied, and in any case detention will continue while an appeal is being
determined. It is not easy to find any successful cases where an owner has successfully
recovered compensation following wrongful detention by an PSCO. The regional port
State control agreements do not detail the appeal procedure in any given country, they
provide provisions for an appeal process. For such information one has to look to the
national law in the port State detaining the vessel. It is only the Paris MOU website that
contains a summary of the remedies available to an aggrieved owner on a country-bycountry basis. The procedure changes considerably from country to country, including
the time limit within which an appeal has to be made.
The Paris MOU has recently introduced a review procedure, as well as and as an
alternative to, the appeal procedures available under the national law of the detaining
port State against a detention decision. The procedure is summarized in the Paris MOU
website and has been used more often than the existing appeal procedures.
Many people have criticized the PSCOs for a variety of reasons. One of these
criticisms is about different implementation.
In the London Club Stop Loss Bulletin, published in November 1998, it was noted
that a vessel operated by one of its members had been boarded in 1998 by port State
inspectors on three occasions in five months. The inspectors were from three different
port State regimes, operating under separate MOUs. On another occasion, a member’s
ship was boarded in August, September and October, each time by inspectors operating
under the Paris MOU.1 In some cases it has been claimed that the same survey had been
done in two consecutive countries and there was a general lack of consistency between
any two PSCOs. It has been claimed in a Skuld circular that in Paranagua, Brazil three
different bodies carry out port State controls and that the criteria for selection of vessels
to be inspected are unknown.2
Insufficient funds and lack of trained personnel are other sources of criticism. For
instance, South Africa is situated on a particularly busy corner of the world’s major sea
routes. Frequently, the weather conditions are dreadful and many casualties occur. In
this region, port State control is carried out at all the seven commercial ports by 24
professional deck and engineer ship surveyors of the Chief Directorate of Shipping.
These surveyors have to do a multiplicity of Merchant Shipping Act related tasks
concerning the ships on the South African register, small vessels, certification of crew,
1. London Club Stop Loss Bulletin, “Port State control inspections must not be abused”. (November
1998) 12, http://www.lsso.com/slb/slb12.htm.
2. Skuld, “Web-Only Circular April 28 2000: PSC Regime in Paranagua, Brazil extended-new fines in
place” http://www.skuld.com/archieve/artikkel.asp?id-469
2
INTRODUCTION
A.4
and pollution monitoring. Therefore, in this region, statutory surveys take preference
and with staff shortages port State control is ineffective in some ports.3
Like any other system where human beings are involved, the port State control system
can be abused. In one case Gabonese port officials at Port Gentil levied a fine of
US$4,000 for alleged violations regarding the ship’s certificates. These were the absence
of photos and stamps on the master’s and officers’ certificates (even though these
certificates were in accordance with STCW requirements) and the absence of the
original P&I insurance policy on board. Although the initial fine against the ship was
stated as US$4,000, the master was informed that the matter could be resolved
“unofficially” with a cash payment of US$2,000. As there was a danger of detention of
the ship, the owners approved the “unofficial” solution. Discussions with the P&I club’s
local representative and the port agents revealed that such incidents are common at the
port.4
The main criticism of, and discussion about the port State control system came after a
25 year old, 35,000 dwt tanker, the Erika, broke in two and eventually sank off the coast
of Brittany on December 12 1999. This incident reflected the polyglot nature of the
tanker industry. The charterer was French, the owner Italian, the crew Indian and the
flag Maltese. However, the Erika was not the only incident where so many nationalities
were involved in the management of a vessel. There have been many oil pollution
incidents where vessels registered under a flag of convenience country polluted various
sea resources, but none of them attracted as much attention as the Erika. The pollution
from the Erika and its loss produced a substantially greater effect than any other
pollution incident in Europe. Oil spill incidents such as the Braer, the Sea Empress and
the Aegean Sea also had legal ramifications but they did not affect the European political
agenda as much as the Erika.
The Erika was different from many of the previous incidents as it carried the required
certificates, was under class and had been inspected by port States, flag States and
industry inspectors on several occasions. However, in this case, the established safety net
of inspections by the flag State, port State, industry and the classification society clearly
failed. In other words, the vessel slipped through the whole series of safety nets.
The incident raised the pollution issue to the top of the European political agenda and
prompted a huge legislative overhaul. Two months after the incident, the Commission
prepared its first legislative package: the Erika I package (March 2000), and following
that the Erika II package (December 2000). While the maritime community was trying
to prevent similar incidents, in November 2002 the oil tanker Prestige broke in two and
sank off the north-west coast of Spain with 77,000 tonnes on heavy fuel oil. Like the
Erika, the Prestige had been through port State control inspections six times since 1998,
with a record of zero detentions and only four minor deficiencies. Following this incident
the Commission adopted a “communication on improving safety at sea” on December 3
2001, only two weeks after the incident.
Erika I and II packages had the same objectives:
●
to tighten existing legislation on port State control and classification societies;
3. South Africa Department of Transport, “Annual Report 1997–1998” http://www.transport.gov.za/docs/
annual/annual98/shipping.html.
4. BIMCO, “Fines at Port Gentil”, home: press room: news archive: 11–00: fines at port gentil
http://www.bimco.org
3
A.3
A.4
A.4
INTRODUCTION
●
A.5
to propose new measures to speed up the phasing out of single hull tankers,
improve controls on shipping in European waters, establish a European
Maritime Safety Agency (EMSA) and create a supplementary fund for
compensation for oil pollution damage.
After the Prestige incident the Commission published an indicative black list of ships
that would have been banned from European ports if the new Community maritime
safety measures had been in force during the period in question. A study was started to
develop the Community telematics network for monitoring shipping in order to
facilitate the identification of ships “at risk” once they enter EU waters. The preparation
of plans was accelerated to accommodate ships in distress in places of refuge. A
Resolution has been adopted for a Regulation to widen the EMSA’s powers to maritime
security and seafarer’s qualifications in order to enable it to play a decisive role in the
implementation of European legislation in these areas.
New amendments were adopted to the Paris MOU in 2002 in order to bring the
memorandum in line with the latest changes of the EU Directive on port State control
(Erika I package) which entered into force on July 22 2003.
●
●
●
●
The Paris MOU introduced thorough rules to target high-risk ships. Certain
categories of ships sailing under flags on the black list will be banned after two
or three detentions;
Expanded inspection became mandatory for older oil tankers, chemical and
gas carriers, bulk carriers and passenger ships after 12 months from the last
expanded inspection;
A ship with a target factor greater than 50 will be inspected after a month from
the last inspection in the Paris MOU;
Banning rules are extended. A ship registered with a flag on the black list will be
refused access to ports in the Paris MOU region:
— after the second detention in three years if it is in the “very high risk” or
“high risk” caegory on the black list
— after the third detention in two years if it is on a lower risk category on the
black list.
Certain measures were also taken by the IMO following the Erika and Prestige incidents:
●
●
●
●
●
compensation limits for oil pollution disasters were raised;
mandatory ship-reporting systems, traffic separation and routeing systems
were introduced;
agreement ws made on single hull tanker phase-out;
“new guidelines on places of refuge for ships in need of assistance” were
adopted by the 23rd Assembly of the IMO5;
the new International Ship and Port Facility (ISPS) Code was adopted by the
IMO in December 2002.
Many states, to varying degrees, delegate statutory authorities to clasification societies
to verify that vessels on their registers comply with SOLAS, MARPOL and the Load
Line Convention, and lately with the ISM Code. However, the control performed by the
5. Resolution A. 949(23) Guidelines on places of refuge.
4
INTRODUCTION
A.6
classification societies on behalf of the flag States is not adequate for all ships. The result
of port State control inspections and the inspections carried out by the flag States
themselves, with respect to their own ships, show that, to a varying degree, the survey
and certification work carried out by the classification societies on behalf of these States
does not meet the expectations of the international shipping community today. It also
needs to be remembered that, in a competitive environment, certain classification
societies may lower their standards in order to attract tonnage. Largely due to
commercial pressure exercised on the classification societies, and the growing number of
organizations operating in the field without having sufficient expertise and professionalism, the confidence of the shipping community in these organizations has declined in
recent decades. A first response to these problems was provided at EU level by the
adoption of Council Directive 94/57/EC. This Directive introduced a system for
EU-wide recognition of classification societies, in order to ensure that classification
societies and survey organizations are professionally efficient, reliable and able to
maintain proper control of compliance within the safety and environmental protection
standards of the vessels that they survey for class. However, the Erika and the Prestige
incidents affected the credibility of the classification system, and the liability of the
classification societies has come under discussion. Obviously, these incidents greatly
damaged the image of the classification societies, and Directive 2001/105/EC was
adopted shortly after the Erika incident to strengthen the liability of the classification
societies. This Directive, amended in 20026, strengthened the working procedures of the
classification societies in order to enhance their quality performance and, in turn,
maritime safety and pollution prevention in general. The proper implementation of
these stringent provisions will be monitored by the Commission and the Member States
in the framework of the inspections of the recognized organizations to be carried out on
the basis of the Directive.
A new stage in the port State control area began following the September 11 attacks in
2001. In November 2002, the US passed a domestic law called the Maritime Security
Transportation Act 2002 (MTSA 2002). The new International Ship and Port Facility
(ISPS) Code was adopted by the IMO in December 2002. MTSA 2002 and the ISPS
Code represent a significant expansion of focus for port State activities. In order to
implement the maritime security policy issued under the MTSA 2002 and the ISPS
Code, compliance actions have been integrated into the existing US PSC program.
Clearly the Erika incident, followed by the Prestige incident and the events of
September 11 created a new climate in which the public is increasingly intolerant of any
failure on the part of the maritime industry, and all sectors of the maritime industry need
to work together in order to restore the confidence in the system again. The maritime
community is acting faster than before in order to bring into force new legislative
measures. Relations between the EU and the IMO have changed irreversibly since the
Erika incident. The EU recognizes the pre-eminence of the IMO in the regulation of
shipping worldwide, but intends to be a force for change within the organization. The
new approach to shipping safety adopted by the Commission means that the EC will
table propositions whenever it considers human life, the environment or economic
interests to be under threat.
As summarized above, since the first edition of this book the port State control system
have gone through major changes and high profile casualties, and the resultant media
6. Directive 2002/84/EC of the European Parliament and of the Council of November 5, 2002.
5
A.6
A.6
INTRODUCTION
coverage has brought the maritime industry into focus within the political arena. After
each incident port State control measures have become tighter, but in which parts of the
world?
The approach taken following the Erika incident was similar to the one taken
following the US Oil Pollution Act 1990 (OPA 90). The Exxon Valdez oil spill, which
happened in Alaska in 1989, caused widespread environmental damage in Alaska and
placed a heavy financial burden on Exxon, one of the world’s largest corporations. This
incident is probably not among the top 20 oil spills. The wreck of the Torrey Canyon
spilled three times as much oil. The grounding of the Amoco Cadiz of Brittany led to a
spill of six times the amount in Alaska. But the Exxon Valdez spill was the largest oil spill
in the United States history emanating from a vessel. It mainly affected the marine
transport of oil and changed the way American society, govement, media and the
industry will deal with oil pollution in the future. The incident induced a burst of
legislative activity in the US Congress and as a result OPA 90 went into force in 1990.
Following September 11, America followed a similar approach and the MTSA 2002
came into force. The incident of the Prestige forced the maritime community to act faster
than before in order to bring into force new legislative measures. Now European waters
are more dangerous for substandard vessels following the new requirements under the
Paris MOU.
Shipowners are quite aware of the fact that port State control rules are not uniform
and some ports are safer than others. Similarly, registering under certain flags can have
more advantages than others, considering the port State control detentions. Now it is
not only the financial advantage that determines the flag State but also the amount of
detentions. Vessels flying targeted or black listed flags will receive greater scrutiny from
port State control. A detained vessel, which is not trading, can translate into thousands
of dollars lost per day. Flying a flag with a good reputation internationally therefore
makes good business sense. Therefore, factors such as flag and class which were not so
important years ago are now front and center. Banks are also more interested in flag and
class data. Delinquent shipowners avoiding ports with stricter standards in favour of
those with more relaxed measures are now searching for safe waters for their
substandard vessels in order to avoid port State detentions. Soon the maritime
community will encounter the problems of ports of convenience like flags of
convenience. Hence, full co-operation between all regional agreements and uniform
application is a must in order to use the port State control practice as an effective tool to
improve maritime safety.
6
CHAPTER 1
Flag State Control: Background
1A INTRODUCTION
Traditionally, jurisdiction over a ship has been connected with its nationality. The
nationality of a ship refers to the State which has authority over, and responsibility in
respect of, the ship. The flag the ship flies is the symbol of its nationality, and “flag State”
generally denotes the State whose nationality a ship bears. Registration is the act by
which the nationality, and collateral rights and duties, are conferred on a ship. By placing
a ship on its register, a State assumes authority over the ship and undertakes the national
and international responsibilities of a flag State in relation to that ship.
1.1
1B THE CONCEPT OF VESSEL NATIONALITY
Before the introduction of the concept of nationality, States always considered some
ships as their own and treated others as alien. They wanted to be able to enact
regulations applicable to “their” ships whenever and wherever possible. However, this
caused complications in practice.1 When “their” ships entered the territory of some
other State, these regulations clashed with the rules which that other State wanted to
enforce with regard to anyone entering its territory.
Following developments in international law, it was accepted that the seas and the
oceans between States should not be regarded as part of States’ territories. With the
introduction of the concept of nationality, the legal principle of the freedom of the seas
was adopted. On the free seas, every State possessed authority over its own ships with
certain limitations. The prevention of collisions and other incidents of navigation was
one of the incentives for States to accept restrictions on their power over their ships on
the high seas. But the main concern was flourishing piracy; and, therefore, with regard to
piracy a right of supervision by all warships and foreign merchantmen was accepted.
During the 19th century, States accepted more restrictions on their exclusive
jurisdiction on the high seas with regard to their vessels. And for international waters, a
compromise was reached between the need for freedom of movement for ships of all
States and the necessity for the creation and maintenance of public order at sea. So, flag
States have certain rights over their vessels when they are on the high seas, territorial seas
or internal waters. However, while exercising its rights, the flag State has certain duties
1. Meyers, H., The Nationality of Ships (1967), p.1.
7
1.2
1.3
1.3
1.4
FLAG STATE CONTROL : BACKGROUND
as well. “These rights and duties, which a State only has in connection with ships which
it legitimately regards as its own ships, are referred to by the one word: nationality.”2
In international law there is a general agreement that a merchant ship on the high seas
has to possess a nationality to be able to prove its existence. The reason behind this
requirement is to ensure that each vessel will be subject to some regulatory scheme and
system of laws. The high seas were defined in Art. 86 of the United Nations Convention
on the Law of the Sea 1982 (UNCLOS) as all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in internal waters of a State or in the
archipelagic waters of an archipelagic State. Article 87 of the UNCLOS provides for the
freedom of the high seas: “The high seas are open to all States, whether coastal or
land-locked.” Apart from being open to all nations, the high seas can be used by both
coastal and land-locked States for the purpose of navigation, overflight, laying
submarine cables and pipelines, constructing artificial islands and other installations
permitted under international law, fishing and scientific research.3 These freedoms, and
others which are recognized by the general principles of international law, shall be
exercised by all States with reasonable regard to the interests of other States in their
exercise of the freedom of the high seas. However, freedom of access should not lead to
abuse; therefore international law provides a framework for the exercise of that freedom,
and these rules are enforced by individual States through the jurisdiction exercised over
their national vessels. In this respect, there are two main rules:4 first, jurisdiction over a
vessel on the high seas resides solely with the State to which the vessel belongs; second,
all vessels using the high seas must possess a national character.
If a ship does not have a nationality, it does not have any protection in international
law. This principle was first adopted by English courts in Naim-Molvan v. AttorneyGeneral for Palestine.5 In this case, the vessel Asya, sailing to Palestine, was flying the
Turkish flag, which she was not entitled to fly. She did not have any papers on board
either. She was arrested by a British destroyer 100 miles off the Palestinian coast. The
Palestinian court ordered the forfeiture of the vessel, even though she had been seized on
the high seas. On appeal, the Privy Council rejected the proposition that the principle of
the freedom of the high seas extended to a ship possessing no nationality. It was held that
2. Ibid.
3. UNCLOS 1982, Art. 87:
“Freedom of the high seas
1.
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this Convention and by other rules of international
law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under international
law; subject to Part VI;
(e) freedom of fishing; subject to conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in
their exercise of the freedom of the high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area.”
4. Ready, N.P., Ship Registration (2002), p.1. As stated by Ready, under the United Kingdom Merchant
Shipping Act 1995, s. 6(1), clearance or transire shall not be granted for any ship until the master has declared
to an officer of customs the name of the nation to which he claims it belongs.
5. [1948] A.C. 351.
8
THE CONCEPT OF VESSEL NATIONALITY
1.5
the vessel’s seizure was legal and that forfeiture of the vessel was proper.6 A similar case
was dealt with under United States jurisprudence. In United States v. Marino-Garcia7 the
United States Court of Appeals for the Eleventh Circuit consolidated actions involving
two ships seized by the US Coast Guard for carrying marijuana while on the high seas
near Cuba. There was no evidence that either vessel intended to offload her cargo at a
US port. The court held the seizure and forfeiture of the vessel proper and stated that
“vessels without nationality are international pariahs. They have no internationally
recognized right to navigate freely on the high seas.”8
A vessel without documents may be refused permission to enter foreign ports and
engage in commercial activities. In The Merritt, it is clear to see the disadvantages of an
undocumented vessel. In this case an American-owned, foreign-built vessel was used in
importing coal and iron from Canada to the US. The vessel was in violation of the
provisions of the Act of March 1 1817. Under this Act, the ship had to be either a US
vessel or a vessel of the nationality of the State whose goods were imported.9
Vessels which fly two flags can also be regarded as stateless ships, because when a
vessel flies two flags it has been treated as falling outside the protection of the law of
either nationality it is claiming. In order to prevent ships from sailing under more than
one flag, the International Law Commission (ILC) proposed that such ships should not
be permitted to claim any of the nationalities in question with respect to any other State
and “may be assimilated to a ship without nationality”.10 This rule was adopted in Art.
6(2) of the Geneva Convention on the High Seas 1958 and is repeated in Art. 92(2) of
the UNCLOS 1982.11 In United States v. Passos-Paternina12 the ship had narcotics on
board and had two flags. When it was boarded by the US Coast Guard the master
claimed both registries. It was held that the vessel was “assimilated to a vessel without
nationality” under Art. 6(2) of the Geneva Convention.
6. It was held that “having no usual ship’s papers which would serve to identify her, flying the Turkish flag,
to which there was no evidence she had a right, hauling it down on the arrival of a boarding party and later
hoisting a flag which was not the flag of any State in being, the Asya could not claim the protection of any State
nor could any State claim that any principle of international law was broken by her seizure”.
7. 679 F.2d 1373, 1985 A.M.C. 1815 (11th Cir. 1982) cited in Anderson, H.E., “The nationality of ships
and flags of convenience: economics, politics, and alternatives” (1996) 21 Tulane Maritime Law Journal,
p.142, n.19.
8. It is discussed in Anderson’s article that, despite authority to the contrary, there does not seem to be any
reason why a ship without nationality should be treated differently for the purposes of jurisdiction than any
other vessel. Ibid., pp.142–143.
9. 17 Wall. (81 US) 582, 586–587 (1873). It was stated that “the case does not show that The Merritt has
any of the evidences of being a British ship. She produces no register, or certificate, or document of any kind to
entitle her to make that claim. The fact that she is foreign-built does not prove it. Proof even that she was built
in Great Britain would not establish it. Pirates and rovers may issue from the most peaceful and most friendly
ports. The documents a vessel carries furnish the only evidence of her nationality. Of these The Merritt is
entirely destitute, so far as the case shows.”
10. Brown, E.D., The International Law of the Sea (1994) Vol. I, p.291.
11. UNCLOS 1982, Art. 92 states:
“Status of Ships
1.
Ships sail under the flag of one State only and, save in exceptional cases expressly provided for
international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high
seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a
real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience,
may not claim any of the nationalities in question with respect to any other State, and may be
assimilated to a ship without nationality.”
12. 918 F.2d 979, 1991 A.M.C. 719, 722 (1st Cir. 1990).
9
1.5
1.6
FLAG STATE CONTROL : BACKGROUND
1C REGISTRATION
1.6
Registration is the administrative act by which nationality and collateral rights and
duties are conferred on a ship. The term is generally used to describe the attribution of
national character to a vessel. With registration the vessel13 enters the public records of a
State. A ship may be registered if it meets the relevant national requirements. With
registration in a State, a ship comes within the national jurisdiction of that State. The
State assumes authority over the ship to exercise the power inherent in the jurisdiction of
the flag State. The State undertakes the national and international responsibilities of a
flag State in relation to that ship.
The matter of deciding the conditions of registration of ships lies within each State’s
exclusive competence. This principle was first recognized by the Hague Court of
Permanent Arbitration in the Case of the Muscat Dhows: Great Britain v. France.14 This
case was about the legality of granting the right to fly the French flag to dhows15 which
were owned by subjects of the Sultan of Muscat. By using the French flag, the subjects of
the Sultan could evade the regulations and inspection of Muscat. Britain argued that
France was restricted by certain treaty provisions from granting the right to fly the
French flag to the Sultan of Muscat, and that the dhows, being owned by the subjects of
Muscat, should fly the British flag. The court, before dealing with the question whether
France’s rights were limited by treaty provisions, proclaimed the right of a State to grant
its nationality to such ships as were entitled under its laws and stated as follows:
“Whereas generally speaking it belongs to every sovereign to decide to whom he will accord the
right to fly his flag and prescribe the rules governing such grants,16 and whereas therefore, the
granting of the French flag to subjects of His Highness the Sultan of Muscat in itself constitutes no
attack on the independence of the Sultan . . . for these reasons [the Court] decides and pronounces
as follows: 1. Before the second of January 1892, France was entitled to authorize vessels
belonging to subjects of His Highness the Sultan of Muscat to fly the French flag, only bound by
own legislation and administrative rules.”
1.7
This case, as the leading precedent, is usually adduced to support the principle of
international law that each State decides what conditions it will impose for the
registration of its vessels under its flag. The view was restated and reaffirmed by the US
Supreme Court in its opinion given on May 25 1953 in the case Lauritzen v. Larsen.17 In
this case, a Danish sailor brought a personal injury claim under the Jones Act18 against a
Danish vessel. The court denied the sailor recovery, holding that Danish rather than US
13. The registration of ships has its origins in the laws of Imperial Rome. It was widespread in the city-states
of medieval Italy. In England, registration started with a statute of Charles II in 1660 (12 Car.2, c.18).
Navigation Acts aimed to prevent foreign vessels taking advantage of the commercial privileges enjoyed by
vessels flying the British flag. In other words, the first registrations were not to regulate standards but to ensure
that certain trades were reserved for the benefits of British citizens. Towards the end of the 18th century,
Navigation Acts also sought to restrict entitlement to the flag to ships built within the British dominions. See
Abbott’s Law of Merchant Ships and Seamen (14th edn, 1901) for the history of British registration, cited in
Ready, N.P.
14. [1916] Hague Court Reports 93.
15. Dhows (in French, “boutres”) are vessels of Arab build, 200–500 tons, which ply the Indian Ocean and
the Red Sea. They are owned and operated mainly by the subjects of the Sultan of Muscat, a British
protectorate. Westlake, “The Muscat Dhows”, Law Quarterly Review 23:83 (1907), cited in Boczek, B.A.,
Flags of Convenience, an International Legal Study (1962) p.100, n.32.
16. Emphasis added.
17. 345 U.S. 571, 1953 A.M.C. 1210 (1953).
18. 46 U.S.C. app. §688. The Jones Act provides that a seaman may bring an action in tort against his
employer for unseaworthiness.
10
THE CONCEPT OF
“GENUINE
LINK ”
1.9
law would apply. It stressed the importance of the law of the flag principle and stated
that:
“Each State under international law may determine for itself the conditions on which it will grant
its nationality to a merchant ship, thereby accepting responsibility for it and acquiring authority
over it. Nationality is evidenced to the world by the ship’s papers and flag. The United States has
firmly and successfully maintained that the regularity and validity of a registration can be
questioned only by the registering State.”19
The Muscat Dhows and Lauritzen decisions are considered as strong authority for
States establishing their own conditions for registration. The basic principles of
nationality and registration of ships can be found in the Geneva Convention on the High
Seas 1958 and are elaborated in the UNCLOS 1982. More specifically, an international
agreement on Conditions for Registration of Ships was signed on February 1986.
According to Art. 5 of the Geneva Convention on the High Seas 1958, every State
shall set the conditions for granting its nationality to ships, for the registration of ships in
its territory, and for the right to fly its flag. The same Article also provided that “there
must exist a genuine link between the State and the ship; in particular, the State must
effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag”. The provisions of Art. 5 have been variously
interpreted especially with respect to the concept of genuine link between the vessel and
flag of registry. A similar statement was made in Art. 91 of the UNCLOS 1982.20
However, in Art. 91 the “in particular” clause was omitted and the Article simply
provided that “there must exist a genuine link between the State and the ship”. The
controversy over the meaning and practical implementation of the “genuine link”
concept remained the central issue in the debate on open registries until the United
Nations Convention on Conditions for Registration of Ships was adopted. However, the
Convention re-affirmed the flag State’s supremacy and left the concept of “genuine link”
still controversial.
1.8
1 D T H E C O N C E P T O F “ G E N U I N E L I N K ”21
If States accepted the need for a genuine link as described in Art. 5 of the Geneva
Convention on the High Seas 1958 and in Art. 91 of the UNCLOS 1982, there would be
no conflict between the law of the flag and the ownership of the vessel. But practice is
different from theory. For instance, if a ship is registered in State A and is owned by a
body corporate in State B, both sovereign States A and B would like to exercise the right
of protection over the ship and this gives rise to complicated issues. State B, promoting
19. 345 U.S. at 584, 1953 A.M.C. at 1220.
20. UNCLOS 1982, Art. 91 states:
“Nationality of ships
1.
Every State shall fix the conditions for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose
flag they are entitled to fly. There must exist a genuine link between the State and the ship.
2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that
effect.”
21. See Özçayir, Z. Oya, Liability for Oil Pollution and Collisions (1998), pp.23–31.
11
1.9
1.9
1.10
FLAG STATE CONTROL : BACKGROUND
the interests of its nationals, may wish to protest against the use of the ship in a danger
zone to assist State C, a State unfriendly to State B but friendly to State A, which has the
right to control the movement of the ship, being the flag State registering and owning the
fleet of which the vessel is a part.
To avoid such complications, the concept of “genuine link” was introduced in 1956
into the deliberations of the ILC. In the draft 1958 Geneva Convention on the High
Seas, the requirement was included that a genuine link must exist between ship and
registry to ensure effective control and jurisdiction over such vessel by its State of
registry. But there was no precise definition of genuine link, nor any explanation as to the
basis for testing whether this link between ship and registry did or did not exist. The
conference had several possibilities: the retention of the genuine link clause as it had
been drafted by the ILC; the definition of the genuine link concept’s essentials; or the
rejection of the concept altogether. Another possibility was to refer the whole issue to a
specialized body like the Inter-Governmental Maritime Consultative Organization
(IMCO).
On the legal issues, the States’ delegates reflected their interests on the problem
directly or indirectly. The traditional maritime countries of Europe wanted to check the
practice of flags of convenience. Therefore, they were in favour of the introduction of the
genuine link clause.22 The clause—Art. 29, drafted by ILC in 1956—states:
“Each State shall fix the conditions for the grant of its nationality to ships, for the registration of
ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag
they are entitled to fly. Nevertheless, for the purposes of recognition of the national character of
the ship by other States, there must exist a genuine link between the State and the ship.”
1.11
The “flag of convenience” States, especially Liberia and Panama, opposed the
principle of genuine link as it had been formulated by the ILC. The vagueness of the
term “genuine link” was one of the arguments they used against it.23 Also, a small group
of States recommended further study of the issue and for various reasons were against
the retention of the genuine link clause.24 On the other hand, the sponsors of genuine
link, Norway and The Netherlands, contended that the term was not too vague or too
general. Their argument was that if equally vague phrases like “with reasonable regard
to” had been found acceptable, then the genuine link clause should be treated in the
same way and accepted as it was.25 The majority of delegates agreed that the formulation
of the criteria for determining the existence of genuine link between the State and the
ship had great difficulties because of the great diversity of domestic laws.
The general agreement was that effective exercise of jurisdiction and control should be
the responsibility of the State of the ship’s nationality. The difference of opinion was that
the opponents of flags of convenience connected this exercise to the concept of genuine
22. The hopes of these countries were best expressed by the government of Denmark. In its comment on
Art. 29 it was stated:
“In this connection, the Danish authorities emphasize that the implementation of the proposed rules,
which assumes the existence of certain guarantees or evidence of actual relationship of the ship with the
State concerned, may serve to support the various endeavours of international shipping circles (including
the Danish shipping trade) to prevent the nationality and registration of a ship from being established on
the basis of such mere formalities as to come within the concept of “flags of convenience”: UN.CLS.OR
(Preparatory documents) 1:83.
23. Liberia, UN.CLS.OR 4:22.
24. Greece, the US and India were among these countries. For instance, the Indian delegates believed that
Art. 29 should not be included in a convention for the time being because the principle of genuine link was not
stated precisely enough.
25. Boczek, B.A., pp.251–252.
12
THE CONCEPT OF
“GENUINE
LINK ”
1.13
link. The flag of convenience group States recognized the principle but did not want to
connect it with the vague concept of genuine link.
In the establishment of the genuine link requirement, the draftsmen of the
Convention were strongly influenced by the judgment of the International Court of
Justice in the Nottebohm26 case. This case did not concern the nationality of a ship, but
the nationality of an individual. In this case, Liechtenstein had unilaterally conferred its
citizenship upon Nottebohm, a former citizen of Germany. Refusing to recognize
Nottebohm as anything other than a German national, Guatemala had confiscated
Nottebohm’s property. In order to recover his property, Liechtenstein brought a case
against Guatemala in the International Court of Justice on Nottebohm’s behalf. The
dispute was whether Liechtenstein was entitled to exercise protection over Nottebohm
against another State as a result of its unilateral grant of naturalization or whether the
nationality of an individual presupposed the existence of a substantive connection
between the nationality and the State whose nationality he claimed. The court found
that no such connection existed. The grant of nationality to an individual need not be
respected by other States if there is no genuine connection between the State and the
individual. Where a State claims to exercise diplomatic protection in respect of its
nationals, in circumstances like those in this case, nationality should be the legal
reflection of a factual link, a “genuine link”, between the individual and the State.
As the Nottebohm judgment set out a general rule of international law in the case of
individuals, the question was whether, by extension, it could apply to cases dealing with
the recognition of nationality of ships or not. Considering the facts of the Nottebohm case,
it becomes clear that the decision in this case applies to individuals only; it does not make
any reference to corporations or ships. Even the scope of its application with regard to
individuals is limited. It is also quite difficult to extend considerations relevant to the
determination of an individual’s nationality to the question of State jurisdiction over a
ship. In the case of a ship, the international character of sea transportation should be
taken into account, which is not the case for determination of an individual’s nationality.
The fact that the requirement of certainty is much more important with respect to ships
than with respect to individuals makes the Nottebohm theory inapplicable to the
nationality of ships.
During the conference to adopt the 1958 Geneva Convention on the High Seas, it was
not possible to reach agreement on what elements constituted a genuine link and Art. 5
was adopted. Under Art. 5, it is for the State to maintain the genuine link between vessel
and flag of registry by adopting proper legislation for its enforcement, and nonrecognition of nationality in the absence of a genuine link was dropped in the final text of
the convention. But although the solution adopted by the Geneva Conference does not
follow the Nottebohm case, it does not describe what is meant by a genuine link. It does
not describe the preconditions for granting nationality. Nor is it clear how nationality is
granted in the absence of a genuine link. What happens if there is no genuine link
between the ship and the flag State? Is the nationality valid or invalid? Neither Art. 5 of
the Geneva Convention nor Art. 91 of the United Nations Convention provides any
answers to these questions.27 Since its codification into international maritime law in
1958, the genuine link concept has been widely interpreted and also has caused
disagreements between legal commentators.
26. [1955] I.C.J. Rep. 4.
27. The provisions of Art. 5 are repeated, with slight differences, in Arts. 91 and 94(1) of the UNCLOS
1982.
13
1.12
1.13
1.14
1.14
1.15
1.16
FLAG STATE CONTROL : BACKGROUND
The requirement for a genuine link was further discussed by the International Court
of Justice in 1960 in the Constitution of the Maritime Safety Committee of IMCO case.28 The
court was requested to deliver an advisory opinion in relation to the constitution of the
Maritime Safety Committee of the Inter-Governmental Maritime Consultative
Organization (now the International Maritime Organization). The problem in relation
to IMCO arose in 1948. At that time, the organization was still in a formative stage. The
controversy was caused by the position of Panama, which was the only major flag of
convenience nation at that time. The Panamanian delegate was aware of the
quasi-maritime status of his country. He supported the the establishment of IMCO and
made a reservation as well: “his government was opposed in principle to any measure
which might limit its registered tonnage or interfere with freedom of maritime trade”.29
Panama wanted to be a member of the Main Working Group of the conference and to
become an original member of the IMCO Council. The 1948 conference agreed to
divide the 16 members of the Council into groups of six, six and four. It was provided
that six members should be governments of the nations “with the largest interest in
providing international shipping services”, six “with the largest interest in international
seaborne trade, and the remaining four should be governments having a substantial
interest in international seaborne trade”. Despite the large amount of tonnage registered
under her flag, Panama was not accepted as an important maritime nation, was not
proposed by the Main Working Party as a member of the Council, and consequently
withdrew from the conference. The problem was whether countries that had a very large
amount of tonnage registered under their flag would be considered eligible for privileges
reserved for the largest maritime nations, and if they would be eligible to have seats in the
various organs of IMCO.
The convention establishing IMCO did not come into force until 1958. During that
period, Liberia became the greatest flag of convenience nation and the third largest
nation in terms of tonnage. The Panamanian fleet also grew, but not as fast as Liberia.
This situation caused concern to the traditional European maritime countries.30
During the first Assembly of IMCO, the European maritime nations decided to block
the election of Panama and Liberia to its organs. In other words, they decided not to
recognise Panama and Liberia as “true” maritime nations. On the other hand, Panama
and Liberia had just ratified the IMCO Convention and were determined to play major
roles as maritime nations in the deliberations of the Assembly. The dispute was about
Art. 28(a), which concerned the election of the Maritime Safety Committee, a major
organ of IMCO. This Article required that the eight “largest shipowning nations” at that
time be elected to the Maritime Safety Committee.31 The interpretation of the phrase
“large shipowning nations” was the problem. Panama, Liberia, with the support
28. [1960] I.C.J. Rep. 150.
29. Doc. E/CONF.4/SR. 4 Rev. (1948), p.33.
30. In England the fear was expressed as follows: “By virtue of this technical ownership they [Panama and
Liberia] may be able to participate in international discussions and to affect by their vote both maritime law
and maritime safety regulations through for instance the proposed Intergovernmental Maritime Consultative
Organization”. United Kingdom Chamber of Shipping, Annual Report (1995), The New York Times, February
20 1956, p.46.
31. Article 28(a) provided that “The Maritime Safety Committee shall consist of fourteen Members elected
by the Assembly from the Members, governments of those nations having an important interest in the maritime
safety, of which not less than eight shall be the largest shipowning nations, and the remainder shall be elected so as to
ensure adequate representation of Members, governments of other nations with an important interest in
maritime safety, such as nations interested in the supply of large numbers of crews or in the carriage of large
numbers of berthed and unberthed passengers, and of major geographical areas”.
14
THE CONCEPT OF
“GENUINE
LINK ”
1.18
of the US, and a few other non-European nations, argued that the phrase should be
interpreted as meaning the eight nations having the largest tonnage registered under
their respective national flags, as they were listed in the Lloyd’s Register of Shipping. If this
view was adopted, both Liberia and Panama would have become members of the
Maritime Safety Committee because in Lloyd’s Register of Shipping, Liberia was placed
third and Panama eighth among the merchant fleets of the world.32 The main opponents
of this view were all the European members of the IMCO. They supported the view that
the phrase did not necessarily mean the eight nations which had the largest tonnage
registered under respective flags, but rather the nations to whose nationals the vessels
really and actually belonged. Under the application of this interpretation, the opponents
of the flag of convenience countries were going to block Liberia and Panama from the
membership of the Maritime Safety Committee.
The nations opposing the flags of convenience argued that Liberia and Panama did
not meet any of the criteria laid down in Art. 28. Their argument was as follows: first, to
determine “governments of those nations having an important interest in the maritime
safety” one had to consider how far governments were interested in maritime questions
and to what extend they were able to contribute to various fields in relation to maritime
safety. Obviously, given such a consideration, Liberia and Panama would not fulfil the
requirements, because their governments did not have the necessary technical
knowledge and did not make any important contribution to maritime safety. Secondly,
the delegations of the traditional maritime countries based their interpretation on the
notion of genuine link accepted at the Geneva Conference on the High Seas 1958. They
agreed that under Art. 28(a), a criterion was brought in but that there was no guidance
for its interpretation. Therefore, the Assembly was under a duty to interpret it. The
majority of the Assembly contended that if the phrase were to be interpreted in the light
of the genuine link concept, the largest shipowning nations would not be the same as
those having the largest registered tonnage. A country’s registered tonnage might not
reflect its actual importance as a shipowning nation.
Liberia, Panama, the US and other countries supporting flags of convenience made
the following comments on the interpretation of Art. 28(a): in the view of the Liberian
and United States delegates, the two criteria of eligibility set out in Art. 28 were not
independent of each other. Therefore, the largest shipowning nations were ipso facto
those having an important interest in maritime safety.33 The requirement of governments on maritime safety, “having an important interest in maritime safety”, could be
understood only with reference to the governments which had given proof of the widest
expert knowledge of maritime safety matters. The US delegate stated that an important
interest in maritime safety was clearly established by active participation in international
regulation of the problem of maritime safety or by adoption of codes based on
internationally approved safety regulations.34 In the view of Liberia and Panama, even if
the criterion of important interest in maritime safety were taken independently, Liberia
and Panama were capable of contributing to maritime safety and had many highly
32. IMCO/A.I/Working Paper 5 (1959) (Merchant Fleets of the IMCO Members according to the
statistics in Lloyd’s Register of Shipping, 1958) cited in Boczek, B.A., p.131, n.22
33. The statement of the Liberian delegate; IMCO/A.I/SR.8 (1959), p.4 and the statement by the United
States delegate; ibid., p.2.
34. The statement of the United States delegate; IMCO/A.I/SR.7 (1959), p.9.
15
1.17
1.18
1.18
1.19
1.20
FLAG STATE CONTROL : BACKGROUND
qualified people in the service who were able to make a valuable contribution to the
Maritime Safety Committee’s work.35
According to the flag of convenience nations and the US, the eight largest shipowning
nations to be members of the Maritime Safety Committee were the first eight nations
shown in Lloyd’s Register of Shipping, because registered tonnage was the sole criterion
for judging the size of a fleet. Even if the criterion of the nationality of the shipowners
were acceptable, Liberia and Panama would still have to be elected because practically
all Panamanian, and the majority of Liberian, vessels were owned by national
corporations, which still placed Liberia fifth and Panama eighth on the list of Lloyd’s
Register. Therefore, “largest shipowning nations” could not mean that the vessels had to
be owned by the State. Gross registered tonnage was the only evidence by reference to
which the size of a shipowning nation could be determined.
The dispute was referred to court.36 The court was asked the meaning of the phrase
“the largest shipowning nations” in Art. 28(a) of the IMCO Convention. Did this phrase
simply cover the States with the largest gross registered tonnage of the shipping
registered under their flags, or did it cover the tonnage which had to be beneficially
owned by nationals of the flag States? With regard to the requirement of an important
interest in maritime safety under Art. 28, the court held that “in the context of the
provision, possession of this interest is implied in relation to the eight largest shipowning
nations as a consequence of the language employed. The particular condition of being
one of the eight such nations describes the nature of the required interest in maritime
safety and constitutes that interest.”37 For the interpretation of the words “the largest
shipowning nations” the court decided that tonnage possessed by a nation was the only
practical means of measuring the size of shipowning nations. The next question was in
what sense Art. 28(a) contemplated tonnage as owned by, or belonging to, the largest
shipowning nations. First, the court rejected the possibility that the phrase “shipowning
nations” meant ownership by the State itself. According to this view, the criterion of
ownership by the State would displace the maritime nations whose fleets were primarily
not owned by governments or their agencies.38 Therefore, the court considered the two
meanings of the phrase: first, it might refer to the tonnage beneficially owned by the
nationals of a State; or second, it might refer to the registered tonnage of a State
regardless of its private or State ownership. The court reached the conclusion that the
test of registered tonnage was the only one by which the size of a shipowning nation
should be determined. It stated that “the absence of any discussion on their meaning as
the draft article developed strongly suggests that there was no doubt as to their meaning,
that they referred to registered ship tonnage”.39 Second, it concluded that “it is unlikely
that when Art. 28(a) was drafted and incorporated into the convention it was
contemplated that any criterion other than the registered tonnage should determine
which were the largest shipowning nations”.40 The test of the nationality of the beneficial
owners of ships was rejected on the basis that such a test was not practical or certain and
also difficult to ascertain. There were different views on the requirements of Art. 28(a).
The court held that the concept of genuine link was irrelevant for determining the
35. The statements of the delegates of Liberia and Panama; IMCO/A.I/S.R.8 (1959), p.4; IMCO/A.I/
S.R.7 (1959), p.6.
36. See Boczek, B.A., pp.125–142 for detailed discussion of the case.
37. [1960] I.C.J. Rep. at 161.
38. See Boczek, B.A., pp.149–150.
39. [1960] I.C.J. Rep. at 170.
40. [1960] I.C.J. Rep. at 169.
16
1986
UN CONVENTION
1.23
meaning of this phrase and that those nations with the largest registered tonnage fell
within the terms of the phrase, whether or not they were flags of convenience. The court
declined this opportunity of giving its support to the requirement of a genuine link.
Since the mid-1970s, the United Nations Conference on Trade And Development
(UNCTAD) has concentrated on finding an acceptable interpretation of the constituent
elements of the genuine link doctrine. UNCTAD believed that the purpose of the
genuine link clause in Art. 5 of the Geneva Convention on the High Seas was to make
sure that States could ensure the exercise of effective jurisdiction and control over vessels
in their registry. And the interpretation of “genuine link” should be made within the
context of the material requirements for the registration of ships to reflect economic ties
between vessel and flag State and, therefore, administrative control by the State. It was
thought that this type of interpretation should include the following elements:41
(i)
(ii)
(iii)
(iv)
(v)
1.21
the vessel or the company owning the vessel should be beneficially owned as to
a substantial part by nationals of the flag State;
the principal place of business and effective management of the legal entity
should be located in the flag State;
the principal officers of the shipping company should be nationals of the flag
States;
the flag State should exercise final control by subjecting the profits of the
shipping company to taxation;
the State of registry should exercise full and regular control over the standards
of the vessel and qualifications and conditions of employment of the crew.
With regard to the genuine link concept, it is possible to reach the conclusion that the
sole and exclusive criterion of ownership of a ship will not always determine its
nationality. What is needed to establish a genuine link between the State and the ship,
and hence the nationality of the ship for the purposes of international law, is the creation
of jurisdiction over a ship and control in administrative, technical and social matters.
Since the 1958 Geneva Convention on the High Seas came into force, the genuine link
requirement appears to have had little influence on State practice. Like the 1958
Convention, the 1982 UNCLOS, Art. 91, did not provide much guidance for the
interpretation of genuine link. The genuine link is not expressly defined in UNCLOS.
UNCTAD made extensive studies of flags of convenience and the United Nations
Convention on Conditions for Registration of Ships 1986 was adopted.
1.22
1E THE UNITED NATIONS CONVENTION ON CONDITIONS
FOR REGISTRATION OF SHIPS 1986 (1986 UN CONVENTION)
The Convention is the outcome of a long debate which started in UNCTAD as a
move to eliminate flags of convenience. It was adopted in 1986 and spells out the
conditions a contracting State shall require to be fulfilled before it accepts a vessel on its
registers. The Convention aims to strengthen the genuine link between the ship and the
flag State. It aims to ensure that States effectively exercise jurisdiction and control over
41. Tolofari, S.R., Open Registry Shipping, A Comparative Study of Costs and Freight Rates (1989), pp.30–31.
17
1.23
1.23
1.24
1.25
FLAG STATE CONTROL : BACKGROUND
their ships, not only in relation to administrative, technical and social matters, but also
with regard to identification and accountability of shipowners and operators.42
The Convention is not yet in force and it seems unlikely that it will enter into force in
the near future.43 It is also known that countries which benefit from the flag of
convenience institution would not become contracting parties to the Convention and a
shipowner in a contracting party’s country will not be completely prevented from
registering his ships in another country that is not a party to the convention.
The Convention comprises 22 articles and three appendices. It consists of mandatory
(if the term is used) and recommendatory (if the term is used) clauses. Some of the weak
points of the Convention are as follows:
Under Art. 5, a mandatory article, the flag State must have a competent and adequate
national maritime administration. Although it is one of the strongest provisions of the
Convention, the terms “competent” and “adequate” are not defined. There is no
requirement that the maritime administration be located within the flag State. This was
proposed but rejected. The terms “competent” and “adequate” used in Art. 5 are not
very clear. Who would judge the adequacy and competency of the administration? Or
who would determine what is adequate or competent? Even if “competent and adequate
administration” were defined under Art. 5, how would an administration enforce the
rules of this convention? If Art. 5 is examined with Art. 2, it is possible to reach the
conclusion that the ownership, manning and management provisions cannot be
effectively enforced if the maritime administration is incompetent and inadequate.44
Paragraph 3(b) of the same Article requires periodic surveys of the ships. And relevant
documents must be carried on board. At the preparatory stage, there was a proposal on
co-operation between flag and port States. Under this practice, the port State would be
able to check that a visiting ship complied with the provisions of the Convention. In the
end, this proposal was not accepted and port States have no role regarding the
convention’s enforcement. In practice, this is a big gap for the security of the
enforcement of the Convention.
The original proposals, which would have had the effect of eliminating flag of
convenience shipping, were rejected and they are not in the Convention. The idea was to
have strong provisions both on ownership and management in order to establish the
frame of a genuine link. This has been avoided. The conditions for national participation
in vessel ownership and manning are optional requirements. Article 7 leaves the decision
on what is to be regarded as an appropriate level of participation entirely to the flag State
to determine. The State has the right to decide which requirement best suits its national
interests and circumstances. While doing so, the flag State should be able to exercise
effective jurisdiction and control over its shipping. On manning of ships, under Art. 9, it
is for the flag State to decide what is a “satisfactory part of the complement”. There is no
42. In UNCTAD’s Report on Action on the Question of Open Registries the importance of identifiability of
owners was stressed in relation to the establishment of a genuine link: “. . . it can be concluded that the lack of
knowledge on the part of open registry countries of the identities of the real owner of ships on their registers,
and their practice of tolerating the nomination of brass-plate companies as owners, stems directly from their
lack of economic linkage with the vessels concerned” UNCTAD 1981, TD/C.4/220, p.3.
43. For detailed information about the Convention see Sturmey, S.G., “The United Nations Convention
on Conditions for Registration of Ships” [1987] LMCLQ 102, Özçayır, Z. Oya, pp.51–64.
44. The United Nations Convention on Conditions for Registration of Ships, 1986, Art. 2. states:
“ ‘National maritime administration’ means any State authority or agency which is established by the
State of registration in accordance with its legislation and which, pursuant to that legislation, is
responsible, inter alia, for the implementation of international agreements concerning maritime transport
and for the application of rules and standards concerning ships under its jurisdiction and control.”
18
MARITIME FLAG
1.28
minimum level for this satisfaction. Therefore, if an open registry State decides to
establish a genuine link through the manning provisions of Art. 9, there would probably
not be much change in that State, because the present open registries have requirements
under their laws that ships registered in them should employ a certain proportion of
nationals subject to availability.
Article 10 covers the role of the flag State with respect to the management of
shipowning companies and ships. Under this Article, the requirement of the location of
management is optional and some open registry States provide that an agent or a locally
incorporated legal entity is sufficient in meeting that requirement. Such an establishment will not have ultimate control over the ships it represents. It would be established
just to fulfil the national requirement under maritime law. Article 11 provides that the
register will include a great deal of information on the ship, its ownership and mortgages.
The aim of transparency is to find out the owner of the ship. Obviously, even with
developed legal and administrative systems it is difficult to establish ownership.
Shipowners prefer to guard their privacy for economic reasons. Article 14 aims to
protect the interests of seafarers against exploitation. However, it does not place any
obligation on the shipowners. It gives the duty to the labour-supplying countries and the
State to make sure that contracts and agreements entered into by shipowners/operators
and seamen’s unions or labour-supplying agencies are in the best interest of seafarers.
The Convention is the outcome of a long debate which started in UNCTAD as a
move to eliminate flag of convenience shipping. Like the 1958 Geneva Convention on
the High Seas and the 1982 UNCLOS, it refers to a genuine link between the flag State
and the ship. But the wider concept of genuine economic link was not approved. When
the Convention is examined as a whole, the vagueness of its terms, the different
standards created, and its failure to come into force since its adoption in 1986 together
make it clear that the Convention has failed to establish adequate measures to confront
the problem of flag of convenience and/or substandard shipping.
1.26
1.27
1F MARITIME FLAG
Until about the end of the 18th century, the concept of the nationality of ships was not
fully developed. Merchant vessels were referred to as belonging to the subjects of the
State, not the State itself. It was up to the individual State to decide which criteria to
apply in recognizing or not recognizing the flag under which the given ship was sailing.
The principles evolved slowly and, with the development of the institution of nationality
of ships, a series of bilateral treaties of commerce and navigation were concluded. But
not all of those treaties satisfied the conditions of the equality of the contracting parties.
After 1830, various States made bilateral treaties and recognized mutually that the
nationality of a vessel was to be decided in accordance with the laws of the country under
whose flag it was sailing. And other States were obliged to recognize that nationality.
Around the mid-19th century, flag recognition clauses became more abstract. Article
VII of the Friendship, Commerce and Navigation Treaty concluded on February 4 1859
between the US and Paraguay is a good example of such clauses. Under Art. VII it was
stated that:
“All vessels which, according to the laws of the United States of America, are to be deemed vessels
of the United States of America, and all vessels which, according to the laws of Paraguay, are to be
19
1.28
1.28
FLAG STATE CONTROL : BACKGROUND
deemed Paraguayan vessels, shall, for the purposes of this treaty, be deemed vessels of the United
States of America and Paraguayan vessels, respectively.”45
1.29
1.30
The wording of this clause shows that flag recognition is still limited by the phrase “for
the purposes of this treaty”. The similar clauses which followed made reference to ship’s
documents as the test of nationality. However, despite this reference, the clauses still
contained the phrase “for the purposes of this treaty”. In later treaties46 a vessel is
regarded as having the nationality of the State whose flag it lawfully flies, without any
reference to the question of who owns it or by which country’s nationals it is manned or
where it was built. This principle was declared in the second sentence of Art. 5, para. 1,
of the Geneva Convention on the High Seas: “Ships have the nationality of the State
whose flag they are entitled to fly”. The same statement was made in Art. 91 of the
UNCLOS 1982.
Until 1919, the privilege of having a maritime flag was restricted to maritime States
only. Land-locked countries with nationally owned tonnage could not register ships to
fly their national flag.47 Therefore, non-maritime States’ citizens had to register their
ships in ports of maritime States and fly the flag of the State where the vessel was
registered. On April 20 1921, the nations that had assembled in Barcelona for the
Conference of Communication and Transit signed a Declaration that incorporated the
principles of the Treaty of Versailles 1919 and recognized the right to a flag of the
shipping of a State having no sea coast. In the 19th century, it became acceptable to
apply the law of the flag to the relations between the master, crew, vessel and third
parties.48 Once ships are permitted to fly the maritime flag of a State, they constitute part
of the national merchant fleet. The operation of such a fleet on the high seas and in
territorial waters of the maritime States of the world creates rights and obligations with
regard to the flag. Basically, the flag State will enforce the rules and regulations not only
of its municipal law, but of international law as well. The national flag constitutes the
primary source of State responsibility in relation to a ship. The most famous judicial
statement concerning the law of the flag was Lauritzen v. Larsen,49 where the importance
of the law of the flag was stressed in relation to nationality. In this case, the court referred
to several contacts to determine the ship’s nationality. These were: the place of the
wrongful act, the law of the flag, the allegiance or domicile of the injured person, the
allegiance of the defendant shipowner, the place of the contract, the inaccessibility of the
45. Cited in Boczek, B.A., p.97, n.21.
46. “Vessels under the flag of either party and carrying the papers required by its law in proof of nationality,
shall be deemed to be vessels of that Party.” Treaty of FCN with the Federal Republic of Germany, October 29
1954, Art. XIX(1); 7(2) U.S.T. 1839; T.I.A.S. 3593. In the Treaty of Commerce and Navigation Between
Denmark and the USSR, August 17 1946; 8 U.N.T.S. 124, it was provided that “The nationality of vessels
shall be reciprocally recognised in accordance with the law and enactments of the two contracting Parties on
the basis of the documents and certificates on board the vessel issued by the proper authorities of either of the
contracting Parties.”
47. For instance, the Swiss Federal Council refused Swiss nationals permission to use the Swiss national
flag at sea.
48. In this respect, one of the most important conflict of law decisions was Lloyd v. Guibert. This leading
case emphasized the importance of the law of the flag with respect to contracts entered into by the master in
foreign ports:
“. . . the flag of the ship is notice to all the world that the master’s authority is that conferred by the law of
that flag . . .”. “Reason and convenience are certainly in favour of holding that the authority of the master
to bind his owners should be fixed and uniform according to the law of his flag, which is known to both,
rather than it should vary according to the law of the port in which the ship may happen for the time to be.”
(1864) 33 L.J.R. 242 (Q.B), aff’d (1865) L.R. 1 Q.B. 115 at 248.
49. See supra, para. 1.7, n.17.
20
FLAG STATE CONTROL
1.33
foreign forum, the law of the forum and the shipowner’s base of operations. Obviously, it
is important to remember that “the flag” is only one contact of several referred to by the
Supreme Court in Lauritzen v. Larsen But within these contacts the flag was of cardinal
importance.
1G FLAG STATE CONTROL
The national flag constitutes the primary source of State responsibility in relation to a
ship. On the high seas, only the flag State may exercise rights over the ship in relation to
jurisdiction. In other words, the State which has granted the ship the right to sail under
its flag has the exclusive right to exercise legislative and enforcement jurisdiction over it
on the high seas. This principle was stated in the Lotus50 case. In this case, it was held that
“vessels on the high seas are subject to no authority except that of the State whose flag
they fly”.51 The exclusiveness of the flag State’s jurisdiction is not absolute. It is subject
to exceptions regarding other vessels. Under these exceptions, other States share
legislative or enforcement jurisdiction, or both, with the flag State.
Flag States have a duty to ensure that their ships comply with the standards accepted
by the flag State under international law and conventions. It is common knowledge
expressly stated within international law that the flag State is primarily responsible for
ensuring compliance with international minimum standards. In other words, the flag
State has the sovereign responsibility of ensuring that its ships are operated and
maintained in a manner which minimizes the risk to seafarers, the marine environment
and the cargo.
UNCLOS 1982, Art. 90, clearly provides for all States to have the right to sail ships
flying their flag on the high seas; but in addition to these rights conferred on flag States it
is apparent that there are also considerable obligations. Article 94 of UNCLOS52
50. [1927] PCIJ, Series A, No.10, p.25.
51. The 1958 Geneva Convention on the High Seas, Art. 6 says:
“1. Ships sail under the flag of one State only and, save in exceptional cases expressly provided for in
international treaties or in these Articles, shall be subject to its exclusive jurisdiction on the high seas. A
ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer or
ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may
not claim any of the nationalities in question with respect to any other State, and may be assimilated to a
ship without nationality.”
52. UNCLOS 1982, Art. 94. states:
“Duties of the flag State
1.
2.
3.
Every State shall effectively exercise its jurisdiction and control in administrative, technical and
social matters over ships flying its flag.
In particular every State shall:
(a) maintain a register of ships containing the names and particulars of ships flying its flag, except
those which are excluded from generally accepted international regulations on account of
their small size; and
(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers
and crew in respect of administrative, technical and social matters concerning the ship.
Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea
with regard, inter alia, to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into account the
applicable international instruments;
(c) the use of signals, the maintenance of communications and the prevention of collisions.
21
1.31
1.32
1.33
1.33
1.34
FLAG STATE CONTROL : BACKGROUND
establishes the fundamental principles. It is incumbent upon any State that allows
registration of vessels under its flag to effectively exercise its jurisdiction and control in
administrative, technical and social matter over ships flying its flag. The flag State is
required to take such measures for ships flying its flag as are necessary to ensure safety at
sea with regard to (inter alia) construction; maintenance and seaworthiness; manning,
labour conditions and crew training; and prevention of collisions. With regard to the
monitoring of condition of vessels flying the flag, such measures specifically shall include
those necessary to ensure that each ship is appropriately surveyed as to condition,
equipment and manning. Article 94(5) establishes the link between municipal and
international law. It imposes a duty on flag States to take any steps which may be
necessary to secure observance with generally accepted international regulations,
procedures and practices. These international regulations include the ones concerning
the safety of life at sea, the prevention of collisions, the prevention, reduction and control
of marine pollution, and the maintenance of communications by radio. This is achieved
mainly by the flag State issuing the vessel’s safety certificates indicating compliance with
the main international conventions. By doing periodical surveys and renewal of the
various certificates, the flag State administration ascertains that the ship meets the
requirements laid down in the national legislation. And these certificates are the key
elements for the port State control inspection system.
Similarly, Art. 217 of UNCLOS sets out the obligation on flag States for the effective
enforcement of international rules, standards and regulations, irrespective of where a
violation occurs.53 However, it is not possible for a flag State to exercise jurisdiction over
a foreign vessel which has caused pollution beyond the limits of any State’s territorial
jurisdiction. Therefore, Art. 218 embodies port State jurisdiction to close this gap.
4.
Such measures shall include those necessary to ensure:
(a) that each ship, before registration and thereafter at appropriate intervals is surveyed by a
qualified surveyor of ships, and has on board such charts, nautical publications and
navigational equipment and instruments as are appropriate for the safe navigation of the ship;
(b) that each ship is in 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;
(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and
required to observe the applicable international regulations concerning safety of life at sea,
the prevention of collisions, the prevention, reduction and control of marine pollution, and
the maintenance of communications by radio.
5. In taking the measures called for in paragraphs 3 and 4, each State is required to conform with
generally accepted international regulations, procedures and practices and to take any steps
which may be necessary to secure their observance.
6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a
ship have not been exercised may report the facts to the flag State. Upon receiving such a report,
the flag State shall investigate the matter and, if appropriate, take any necessary action necessary
to remedy the situation.
7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into
every marine casualty or incident of navigation on the high seas involving a ship flying its flag and
causing loss of life or serious injury to nationals of another State or to the marine environment.
The flag State and the other State shall co-operate in the conduct of any inquiry held by that other
State into any such marine casualty or incident of navigation.”
53. UNCLOS 1982, Art. 217(1) states:
“Enforcement by flag States
1.
States shall ensure compliance by vessels flying their flag or of their registry with applicable
international rules and standards, established through the competent international organization
or general diplomatic conference, and with their laws and regulations adopted in accordance with
22
FLAGS OF CONVENIENCE
1.36
Despite the express reference to flag State responsibility in international law, are all
the flag States uniform in their determination or their ability to discharge this duty? In
practice, this is not the case. Some States are not very keen on fulfilling their obligations
with regard to international obligations and substandard shipowners can transfer their
ships to the flags of those States which ignore their international obligations. Here, flags
of convenience assume prominence.
1H FLAGS OF CONVENIENCE
The practice of shifting maritime activity from one flag to another and registering
vessels in States with more convenient laws or policies is not new. In fact, the history of
flags of convenience54 dates back to the Roman Empire, when Roman shipowners
registered their ships under the Greek flag. In the 16th and 17th centuries, English
shipowners transferred their vessels to the French and Spanish flags. The aim of the
transfer was to avoid Spanish monopoly restrictions on trade with the West Indies.
Again, in the 17th century English fishermen off Newfoundland used the French flag in
order to avoid fishing restrictions imposed by Great Britain. In the middle of the 19th
century, many British shipowners sailed their vessels under the Norwegian flag. In the
19th century there were also cases where shipowners changed flags to avoid the
disadvantages of government decrees and protectionist policies and also to gain
protection against piracy and confiscation.
The modern use of flags of convenience started in the 1920s during Prohibition in the
US.55 In 1919, a small cargo vessel, the Belen Quezada, was transferred from the
Canadian to the Panamanian flag and thereafter engaged in rum-running in an effort to
avoid American prohibition laws. Under the 1922 Prohibition Act in the US, the sale or
carriage of alcoholic beverages aboard American-owned vessels was made illegal. As a
result of this Act, an American shipping company, United American Line, transferred
two of its US flag passenger ships, SS Resolute and SS Reliance, to the Panamanian
registry. The aim of the transfer was to avoid the regulations preventing the sale of liquor
on board. In the 1920s, this prohibition caused a considerable number of transfers to the
Panama flag. In America, apart from SS Resolute and SS Reliance, seven other ships were
transferred in 1920 to Panama by a US company under the auspices of the Shipping
this Convention for the prevention, reduction and control of pollution of the marine environment
from vessels and shall accordingly adopt laws and regulations and take other measures necessary
for their implementation. Flag States shall provide for the effective enforcement of such rules,
standards, laws and regulations, irrespective of where a violation occurs.”
54. For detailed information on flags of convenience, see Anderson, H.E., pp.156–168; Özçayir, Z. Oya,
pp.31–50; Osieke Ebere, “Flags of Convenience Vessels: Recent Developments” (1979) 73 American Journal
of International Law, pp.604–627; Metaxas, B.N, Flags of Convenience, A Study of Internationalization (1985);
Tolofari, S.R. (1989).
55. Tolofari summarizes the history of the origin and evolution of the present-day flags of convenience in
five parts:
(i) the 1922 Prohibition Laws;
(ii) rising American labour costs for US-flagged ships and their consequent high operating costs;
(iii) the imminence of World War II in the inter-war years;
(iv) the US Neutrality Laws of 1939; and
(v) competition in the world shipping markets after World War II.
Tolofari, S.R., p.24.
23
1.35
1.36
1.36
1.37
FLAG STATE CONTROL : BACKGROUND
Board. Also, under US maritime law, a large majority of the crew complement (75 per
cent) of a US-flag ship had to be American. In order to avoid being caught by this
condition, and to escape from rising operating costs due to union pressure, in America
the flags of Panama and Honduras became flags of necessity.56
Vessels have been flagged or reflagged for various reasons. In the US, rising operating
costs of US-flag ships were the primary motive for moving towards a recourse to flags of
convenience. In Europe, political instability was the main motivation. The fear of having
their vessels requisitioned and heavy tax burdens led European shipowners to apply for
flags of convenience.57 In 1939, the US Neutrality Act sought to prevent US-owned and
crewed vessels from trading in the European war theatre. The Act aimed to keep US-flag
ships from entangling the US in war. But despite the neutrality laws, the US government
wanted to supply essential war materials. As a solution, a large number of US-owned
vessels, mainly tankers, were transferred to the Panamanian flag under the auspices of
the US government. And the turning point in the evolution of open registries occurred
during the post-war years. The desire and need to be competitive in the world shipping
markets gave rise to the spectacular growth of flags of convenience.
1I THE CREATION OF OPEN REGISTRIES
1.38
The reasons for registering a ship under a flag of convenience country vary from one
owner to another. But the commonest motivation has always been of economic
advantage.58 Flags of convenience have otherwise been called “flags of necessity”,
“shadow flags”, “cheap flags”, “open registries”, “flags of opportunity”, “free flags” and
so on. Each of these terms signifies something which in the view of different national
groups is thought to be dominant characteristics of the institution. However, in nearly all
the definitions of flags of convenience, reference is made to fiscal obligations of the
56. Ibid., pp.24–25.
57. In 1935, the 25 vessels forming the Esso Baltic fleet were transferred from the flag of the Free State of
Danzig to the Panamanian registry.
58. The economic aspect of flags of convenience has been set out as follows:
“A flag of convenience is the flag of a State whose government sees registration not as a procedure
necessary in order to impose sovereignty and hence control over its shipping but as a service which can be
sold to foreign shipowners wishing to escape the fiscal or other consequences of registration under their
own flag.”
Grunsey, K., Flags of Convenience in 1978, Transport Studies Group, Discussion Paper No.8 (1978).
Under Metaxas’s definition, “flags of convenience are the national flags of those States with whom shipping
firms register their vessels with a view to maximizing their private benefits and minimizing their private costs by
avoiding:
(a) the economic and other regulations; and
(b) the conditions and terms of employment of factors of production that would have been applicable if
their vessels were registered in countries of their national origin.” Metaxas, B.N., p.14.
In 1970, the United Kingdom government prepared a report, called the Rochdale Committee Report,
under which six features were identified as being common to such flags:
(i) the country of registry allows ownership and/or control of its merchant vessels by non-citizens;
(ii) access to the registry is easy. A ship may usually be registered at a consul’s office abroad. Equally
important, transfer from the registry at the owner’s option is not restricted;
(iii) taxes on the income from such ships are not levied locally or are low. A registry fee and an annual fee,
based on tonnage, are normally the only charges made. A guarantee or acceptable understanding
regarding future freedom from taxation may also be given;
(iv) the country of registry is a small power with no national requirement under foreseeable
circumstances for all the shipping registered, but receipts from very small charges on a large tonnage
may have a substantial effect on its national income and balance of payments;
24
THE CREATION OF OPEN REGISTRIES
1.40
shipowner’s own State.59 It is believed that taking part in competition in the market has
great importance for a shipowner when considering open registry. But in a maritime
company, all decisions are taken in order to achieve the common goal of minimizing
private costs and maximizing private revenue. Therefore, the choice of flag relates to
investment and to cost/revenue considerations. In this regard, it is not possible for a
shipowner to choose a flag without considering the fiscal advantages. Maritime
companies also consider the political and commercial aspect of the problem. Is the flag
acceptable to potential financiers and/or charterers? If necessary, how quickly would it
be possible to take enforcement action in that country? Are there any trading restrictions
due to the vessel’s flag? Or are there any political risks associated with the flag State?
In general terms, under the flag of convenience system, it is possible for the owner to
avoid taxation and social security requirements, to determine the extent to which the
requirements set out in applicable international instruments are complied with and go to
reductions in manning levels.60 One does not have to visit a flag of convenience nation to
register a vessel. Registration can be done by contacting a consulate. Shares in the
shipping company are often issued in bearer form, which means that whoever possesses
the shares owns the company. Therefore, the actual ownership of a given ship holding
company is not known by the nation of registry. In The Pacific Charger, a formal
investigation was held in New Zealand in 1981 to consider the stranding of the vessel so
named. During the investigation it became clear that there were some 12 companies
(excluding the nominal shipowner in Liberia) involved in the operation and financing of
the ship concerned. Many of the crew did not know who actually owned the ship or who
they actually worked for.61
Since the beginning of flags of convenience, maritime employment has significantly
(v) manning of ships by non-nationals is freely permitted; and
(vi) the country of registry has neither the power nor the administrative machinery effectively to impose
any government or international regulations; nor has the country the wish or the power to control the
companies themselves.
Committee of Enquiry into Shipping-Report, Cmnd 4337, H.M.S.O.
59. The origin of the term “flag of convenience” is not clear but it is believed that its general use started in
1950s. The term was used in 1954 in a report of the Organization of the European Economic Co-operation
(OEEC, now OECD) in relation to the flags of Panama, Honduras and Liberia.
60. ITF, “ITF Fisheries Section: Troubled Waters”, http://www.itf.org.uk/english/fisheries/pdfs/
moretroubledwaters.pdf (August 2002) pp.15–16.
61. The companies involved in this case were as follows: the Pacific Charger was owned by Ocean Chargers
Company Limited; the company and the ship were both registered in Liberia; the company was a wholly
owned subsidiary of Kansai Steamship Company Limited which was incorporated in Japan (where the ship
was built); the ship was time-chartered to the Kansai Steamship Company, which had an operation contract
for the ship with Crusader Swire Container Service Limited, a company incorporated in England; the Ocean
Chargers Company also had a management contract with Harmony Maritime Company Incorporated of
Taiwan; the general agents in Japan for the Harmony Maritime Company were Seiwa Navigation
Corporation; the agents in Taiwan appointed by the Harmony Maritime Company for appointing the Chinese
crew officers to the ship were the Union Maritime Company Incorporated; the agents in Hong Kong
appointed by the Harmony Maritime Company for appointing the Burmese crew ratings to the ship were
Ocean Services Corporation Limited; Far East Division, the general agents in Japan for Crusader Swire
Container Service Limited were John Swire & Sons (Japan) Limited; the agents in New Zealand for Crusader
Swire Container Service Limited were P&O, New Zealand Division; the shipowner’s (Ocean Chargers
Company Limited) agents in New Zealand, appointed after the stranding, were Russell & Somers
(Wellington) Limited; the ship was subject to two mortgages, the first to Sumisho Lease Company Limited
and the second to Kurushima Dockyard Company Limited; the second mortgage was assigned to Sasebo
Heavy Industries Company Limited, the shipbuilder. Pacific Charger—Report of Court (January 1982), and
Annex thereto, of the formal investigation into the shipping casualty of May 21 1981, held in Wellington, New
Zealand, July 7–October 9 1981. Corbet, A.G., “Who is the shipowner?” Seaways, (1993) December, p.16.
25
1.39
1.40
1.40
FLAG STATE CONTROL : BACKGROUND
decreased in developed countries.62 Crewing costs can total as much as half of the
operating costs and, therefore, vessel owners prefer to use flags of convenience in order
to have more profit and remain competitive in the market.63
The first registry which became popular for economic reasons was the Panamanian
registry. In the 1920s and 1930s, US consuls represented Panamanian interests abroad
where there was no Panamanian consulate. A group of leading US entrepreneurs,
multinationals and Edward Stettinius, a former Secretary of State under Franklin D.
Roosevelt, wanted to create a registry with even fewer requirements than the
Panamanian registry. The result was the creation of the Liberian registry. In 1948, the
Liberian government entered into a profit-sharing agreement with Stettinius, enacted
the required legislation, and the Liberian registry was opened in New York, where it has
since had its headquarters.64 After World War II, for a long time, Liberian and
Panamanian fleets were considered “American controlled”, as the ownership of
one-ship Liberian and Panamanian holding companies was largely under the control of
US citizens and corporations. As Anderson points out, the relationships among the open
registry countries and the developed nations should be examined in a larger political and
economic context.65 However, it is beyond the scope of this book to examine this aspect
of flags of convenience in detail.
1J PROBLEMS ARISING FROM FLAGS OF CONVENIENCE
1.41
For years, vessels registered under flags of convenience were involved in maritime
disasters. The reasons cited for these disasters are usually a failure to enforce regulations
and the use of inexpensive, untrained labour.66 The records of open registry fleets show
that the casualty rate for the flag of convenience fleet is substantially higher than that of
the regulated fleet. For instance, for many years Panama had a reputation for permitting
the operation of substandard ships. As a result of this practice Panamanian ships had a
very high accident rate compared with vessels which flew the traditional maritime
countries’ flags. After increasing pressure, in 1997 the Panamanian government enacted
laws and provided for stricter inspection of vessels flying its flag. However, despite this
new legislative improvement in 1997 Panama lost more ships and more tonnage than
any other flag State in the world. In the same year, Panama had the highest number of
62. In June 1981 it is stated by UNCTAD that developing States generate about 60 per cent of the world’s
exports and 40 per cent of the world’s trade, but own and control only 15 per cent of the world’s tonnage.
UNCTAD, TD/B/C.4/L.152 (June 1981)
63. “According to a report in 1977, on board a 50,000 dwt tanker, typical of those bringing oil into US
ports, a 32 man crew would cost $1.7 million a year in US wages. In contrast, by using the Liberian flag, a
shipowner could hire crews of nationalities at the following rates: Italians $600,000 a year; Britons $500,000 a
year; Spaniards $450,000 a year; Greeks $325,000 a year; Chinese $325,000 a year; Filipinos $250,000 a year.
A “motley crew” (one made up of various nationalities) could reduce cost to a mere $200,000 a year.” Recent
Tanker Accidents-Legislation for Improved Safety, Part 2, Committee on Commerce, Science and
Transportation, United States Senate, 95th Congress (1977), pp.673–674 Cited in Kasoulides. George C,
Port State Control and Jurisdiction, Evolution of the Port State Regime (1993), p.77.
64. Anderson, H.E., p.159.
65. Ibid., p.160.
66. In the study made by Metaxas and Doganis it was concluded from the casualty records for 1958–1972
that “the analysis of casualty statistics . . . has shown that the casualty rates of flags of convenience fleets, taken
as a whole, are significantly higher than those of regulated fleets . . . There is clearly a distinct relationship
between casualty rates and flag of registry. The convenience flags all have poor safety records in comparison to
the world average and, more particularly, in comparison to the safety records of major regulated fleets.”
Doganis, S.R. and Metaxas, B.N., The Impact of Flags of Convenience (1976), pp.79, 103.
26
PROBLEMS ARISING FROM FLAGS OF CONVENIENCE
1.43
detentions, with 449 ships detained. And Panamanian-flagged ships have the highest
number of reported deficiencies in certification, safety, navigation, pollution and
operations of all flag States.67
Flags of convenience States accounted for 13 of the 32 countries that suffered ship
losses during 2001. This number accounted for over half (58%) of all ships lost, and
nearly two-thirds (63%) of the gross tonnage. Panama continues to be worst for
casualties.
The best known open registry vessel casualty is the Amoco Cadiz. In this case the US
Court of Appeals for the Seventh Circuit found that the oil spill caused by the grounding
of the Liberian-flagged M/V Amoco Cadiz was due largely to the inadequately trained
crew. The amount of oil spilled into the sea from the Amoco Cadiz was about twice that
spilled from the supertanker Torrey Canyon in 1967 and about six times that spilled from
the tanker Argo Merchant in 1976. Like the Amoco Cadiz, the Torrey Canyon, the Argo
Merchant and the Sea Empress all flew the Liberian flag.68 In the Diamond Grace incident,
the vessel flew the Panamanian flag.69 More recently, on December 12 1999 the
Maltese-registered tanker Erika broke in two in gale force winds in the Bay of Biscay,
some 70 km off the south-west coast of Brittany, France. Cargo on the Erika was 38,000
tonnes of heavy fuel oil. An estimated 10,000 tonnes of oil escaped from the vessel
following its break-up. Pollution caused by the vessel is feared to be the worst oil spill
disaster in European history with many miles of French coast affected and up to 300,000
seabirds feared dead. More recently, in November 2002 a Bahamas-registered
26-year-old single-hull oil tanker, Prestige, carrying 77,000 tonnes of heavy oil, broke up
and sank off the north-west coast of Spain.
As with the stricter inspection rules brought into force in Panama in 1997, under
Malta’s new rules, vessels applying to register for the first time will be required to pass an
inspection from Malta Maritime Authority’s own inspectors, in addition to the
inspection and surveys carried out by the vessel’s classification society. Vessels over 25
years old will not be allowed to join the flag if they have not been flagged in Malta before.
For vessels between 20 and 25 years old, the Maltese inspection will be carried out
before registration is granted. For vessels between 15 and 20 years old, the inspection
must be passed in the first month of registration. Previously, these requirements had
applied to vessels aged over 25 years and between 20 and 25, respectively. The new rules
would have not made any difference in the case of the 1975-built Erika. It had been
registered in Malta since December 5 1990 as Prime Noble.
As the following table demonstrates, flag of convenience countries remain at the top of
the list in port State control detentions.
67. ITF (February 19 1999), “International Transport Workers’ Federation Press Release”, http://
www.itf.org.uk/SECTIONS/MAR/panama2.html (July 27 1999).
68. Critics of this position contend that environmental problems are not necessarily the product of the flags
of convenience regime. They argue that the vast majority of marine oil pollution is not attributable to
catastrophic oil spills, but rather results from operational discharges. They also point out that spills are also
caused by ships registered in closed registry States. In the Exxon Valdez incident, the vessel had a Liberian flag
but was registered in the US. One cannot deny the fact that operational discharges are the main cause of the
marine oil pollution, but oil spills always have more drastic effects than operational discharges. See Anderson,
H.E., pp.162–163.
69. July 2 1997.
27
1.42
1.43
1.43
FLAG STATE CONTROL : BACKGROUND
Inspections
2000–2002
Detentions
2000–2002
Very high risk
Albania
Bolivia*
São Tomé e Príncipe*
Tonga
Lebanon*
Algeria
Korea, Democratic Rep.
Honduras*
Cambodia*
Georgia
Turkey
Syrian Arab Republic
Libyan Arab Jamahiriya
Romania
Belize*
126
76
97
103
237
200
43
226
911
212
2,440
394
57
170
358
69
40
46
41
77
61
16
68
230
56
545
89
16
37
71
High risk
St Vincent and the Grenadines*
Morocco
2,365
201
403
39
Medium to high risk
Ukraine
748
100
Medium risk
Egypt
209
30
Panama*
5,213
541
Malta*
5,000
481
India
209
24
Bulgaria
293
32
Tunisia
44
7
Cyprus*
3,391
347
* Denotes flag of convenience State.
Source: Paris Memorandum of Understanding (MOU) on Port State Control, 2002
Annual Report
1K LABOUR
1.44
After the transfer of US ships to Panama and Honduras flags, organized labour
opposition to flags of convenience began in the 1930s. In 1933, the International
Transport Workers Federation (ITF), which unites more than 400 trade unions and
represents over 5 million transport workers, first raised questions of flag transfers to
Panama. The ITF Congress in Oslo in July 1948 was the beginning of the federation’s
campaign against flags of convenience, in which it threatened to boycott ships
transferred to the Panamanian flag. The ITF Congress in Stuttgart in 1949 refined the
ideas behind the flags of convenience campaign which stay more or less the same today.70
During the campaign, the ITF prepared an agreement called the Collective
Agreement, which contained the terms and conditions for the employment of seafarers.
Shipowners who operate vessels under flags of convenience employ their crews under
70. The sub-standard conditions of ships with regard to labour qualifications caused the loss of a
Liberian-registered cargo ship, Seagull, in 1974. After investigation it became clear that only the ship’s master
had bridge watchkeeping qualifications. The chief officer was a promoted radio officer. There was no second
officer. Due to disqualification of the crew, only the master had enough knowledge and experience to deal with
bad-weather emergency situations.
28
LABOUR
1.44
the ITF Collective Agreement. When a shipowner signs this agreement, he will have a
“blue certificate”. If a shipowner fails to provide such a certificate to an ITF inspector,
industrial action will be taken against the vessel.71
In practice, seafarers who are hired to work on flags of convenience vessels are often
given strict instructions not to make contact with the ITF. There are also a number of
crewing agents and owners who will sign an ITF agreement, and then defraud their
crews by ignoring the agreement, paying lower wages and threatening the seafarers not
to report these practices to the ITF. In such cases, double book-keeping is often used to
force the crew to agree to hand any back wages recovered by the ITF or by crew action to
the company, or to have such amounts deducted from their future wages.
As the ITF boycott campaign grew in strength, the interests of two different groups
started to clash. On the one hand, there was the right of unions and workers to secure
satisfactory working conditions. On the other hand, there was the right of shipowners to
trade their vessels internationally without being detained by extra-legal action in
countries which have no connection with the owner, the crew or the union.72 In most
cases that went to court, the shipowners were trying to find a way to obtain an injunction
to prevent an ITF boycott. If this was not possible, the question would be whether there
was an alternative remedy of damages and/or restitution of what had been paid, after the
boycott had been lifted and the vessel had sailed. In The Saudi Independence73 the
decision was in favour of the shipowners when the court held that, according to Filipino
law, which was the law of the employment contracts, the strike was unlawful so the
injunction could be granted.74 Following the passing in the UK of the Employment Act
1980, which contained legislation to limit secondary industrial action, the shipowners
believed that they were more likely to be successful in litigation in the UK. This belief has
turned out to be wrong in The Evia Luck.75 This case clearly established that when
foreign law is considered under English law, only the foreign domestic law is applied.
Foreign laws’ private international law rules do not have any application. Therefore, in
this case the English court did not consider Swedish private international law rules,
under which the owner’s claim for damages would be successful. In The Nervion,76 the
71. Between 1976 and 1980 the Court of Appeal dealt with five cases about union action against flags of
convenience ships. In the first case, Camellia Tanker Ltd v. International Transport Workers Federation [1976]
I.C.R. 274, the dispute was between the union and the shipowners about the wages being paid on the Camellia.
The tanker was “blacked” and unable to sail as a result of this agreement. In the second case, Star Sea Transport
Corporation of Monrovia v. Slater [1978] I.R.L.R. 507, a bulk carrier, the Camilla M, which flew a flag of
convenience, was blacked under the instructions of the ITF. In NWL Ltd v. Woods [1979] I.C.R. 744 and
NWL Ltd v. Nelson [1979] I.C.R. 755, the ITF sent instructions to black the Nawala, a bulk carrier which flew
a flag of convenience. It was argued that the motive of the ITF was to promote its policy of abolishing flags of
convenience and was not to pursue any legitimate trade object. In other words, the argument was whether in
such a situation the unilateral action of the ITF justified the plea of trade union immunity. In both cases the
Court of Appeal held that the immunity applied, and it suggested that trade unions could lawfully take action
against flags of convenience. This view was also supported in the House of Lords.
72. In order to engineer the boycotts, the ITF requires the co-operation of local or national maritime,
tugboat, or longshore and other dock owners’ unions, national laws which permit boycotts of this nature, and a
crew of inspectors.
73. Hoge Raad, December 16 1983 [1985] Nederlandse Jurisprudentie 311; [1984] Schip en Schade 25.
74. In this case, the conflict was between domestic law pertaining to the legality of strikes and the chosen
foreign law in a contract of employment. The vessel sailed under the Saudi Arabian flag and employed a
Filipino crew under Filipino employment contracts. The contracts were subject to the law of the Philippines.
While the vessel was at a Dutch port, the crew sought the assistance of the ITF and went on strike on its advice.
The owners commenced proceedings against both the ITF and the crew and sought an injunction restraining
the strike.
75. Dimskal Shipping Co., SA v. International Transport Workers Federation [1992] A.C. 152 (H.L.).
76. (H.D. 1987: 152) Swedish Supreme Court, 1987 No. 152 [1987] NJA [Sweden] 885.
29
1.44
FLAG STATE CONTROL : BACKGROUND
Swedish Commercial Court, in the absence of any express stipulation, ruled in favour of
the law of the flag, which was Panama.
1L ECONOMIC CONSIDERATIONS
1.45
A study by the Organization for Economic Co-operation and Development on the
“competitive advantages obtained by some ship owners as a result of non-observance of
applicable rules and standards” clearly shows that there is a positive economic incentive
in not complying with international minimum standards, and the competitive advantages which the substandard operator gains are sizeable. The report makes reference to
the considerable benefits to be obtained by those owners who operate their vessels with a
very low level of compliance. These benefits can average at least 15 per cent of the
vessel’s operating costs. Obviously, this is not an insignificant amount and gives the
operators considerable commercial advantage.
When a vessel is registered under the flag of convenience it is owned by a corporation,
and this corporation is specifically established for that purpose and it does not have any
assets other than the vessel. In cases where the shipowner has more than one ship, a
separate owning company will generally be established in respect of each vessel. The
beneficial ownership also enables the shipowner to escape tax liabilities in the country of
his establishment.
1M HAS THE FLAGS OF CONVENIENCE PROBLEM BEEN
SOLVED?
1.46
For the purposes of the flags of convenience campaign, the ITF Fair Practices
Committee (FPC) decides what is a flag of convenience and what is not. The FPC keeps
a list of countries offering flag of convenience facilities and from time to time adds
countries or deletes them from the list. In the past, the definition was based on a number
of criteria which were outlined by the UK Committee of Inquiry into Shipping in 1970
which was chaired by Lord Rochdale and became known as “Rochdale Criteria”.77 In
1998, during the ITF’s 39th congress in India, the new policy of the ITF was stated under
the heading “From Oslo to Delhi—50 years of fighting flags of convenience”, marking
the 50th anniversary of the launch of the campaign at the ITF’s Oslo Congress in 1948.
Following the adoption of the “Delhi Policy” on minimum conditions on merchant
ships, the ITF accepted a new criterion for determining whether or not a ship register
should be declared as a flag of convenience.
In order to decide whether a register is a flag of convenience, the ITF continues to take
into account the degree to which foreign-owned vessels predominate on the registry. If
the majority of the vessels on the registry are foreign owned and there is no link between
the shipowner and the flag of the country concerned, then the registry will automatically
qualify to be designated as a flag of convenience by the FPC. The ITF also scrutinizes
the performance of ship registers measured against the following criteria. Under this
77. See n.58.
30
HAS THE FLAGS OF CONVENIENCE PROBLEM BEEN SOLVED ?
1.48
practice, national registers which do not meet the ownership criteria may go on the flags
of convenience target list if they reveal serious deficiencies with regard to their:
— ability and/or willingness to enforce international minimum social standards
on their vessels, including respect for basic human and trade union rights,
freedom of association and the right to collective bargaining with bona fide
trade unions;
— social record, as determined by the degree of ratification and enforcement of
International Labour Organization (ILO) Conventions and Recommendations; and
— safety and environmental record as revealed by the ratification and enforcement of IMO Conventions and revealed by port State control inspections,
deficiencies and detentions.
With reference to the early stages of development of flags of convenience, some might
argue that the flag of convenience fleet has brought social benefits as well as additional
social costs. No doubt, the lower freight rates helped the development of dry cargo and
tanker markets. In the flag of convenience countries, there were more employment
opportunities. However, the reverse effects were seen in Europe. The 1980s can be
described as the decade where “flagging out” became common practice. This impelled
European governments to look into the matter in order to overturn the trend. It was
argued that flying open registry flags caused losses in tax and social security revenue; in
other words, that the benefits from the shipping industry were lost. First, politicians tried
to bring regulations in force in order to stop flagging out. In a free shipping market such
an attempt did not work. Following this failed attempt, governments decided that a
better solution to this problem was trying to attract the shipowners back. Then an
attempt to create a European flag of convenience began. In order to retain national
owners from flagging out completely, the following Second Maritime Registries were
created: Germany with the International Ship Register (ISR) 1989; Denmark with the
Danish International Ship Register (DIS) 1988; France with the Kerguelen Island
Register (KER) 1986; Norway with the Norwegian International Ship Register (NIS)
1987, and so on.
For second registers, the ITF states that safety and social security standards should be
retained, and that trade union negotiating rights must be recognized. For instance,
January 30 2004 was set as deadline by the ITF for action to bring the Danish
International Register in line with ILO standards. Starting from February 1 2004, those
vessels covered by Article 10/3 of the DIS Act will be classed on a ship by ship basis as
being under flags of convenience.
On the ITF side, the ITF boycott against flags of convenience has had several
successes, especially on its insistence that shipowners flying flags of convenience become
signatories to agreements that they will adhere to ITF wage agreements and various
other protective measures. However, despite its success, when a collective agreement is
signed it does not drive the ship back to its national flag; it only licenses the owner to
carry on its operations free from any union action. Ships still have multinational crews,
owned by a multinational companies, registered in one country, mortgaged in another
and managed from a third country. Under the Delhi Policy, it has been acknowledged
that the ITF campaign has failed in one of its fundamental objectives: to drive ships back
to their national flags. As stated in the ITF’s Flags of Convenience Campaign Report
2001/02, the number of flag of convenience vessels does not seem to be declining, and
the historically worst-offending registries, including Panama, Cyprus and Liberia,
31
1.47
1.48
1.48
1.49
FLAG STATE CONTROL : BACKGROUND
continue to have poor records in terms of casualties, port State detentions and ageing
“rust-bucket” ships. However, the fact that, out of 18,000 or more flag of convenience
ships, about 30 per cent are covered by ITF-approved agreements—benefiting up to
90,000 seafarers—is highlighted as a remarkable achievement. In terms of reduction of
fleets, Honduras and Belize have been getting rid of some of the worst ships from their
flag, in order to improve their lamentable port State control record. The ITF Flags of
Convenience Campaign has been further developed to include regional and subregional
Weeks of Action, many of them involving unions which had not before been directly
engaged in ITF campaign activity.
Following the tragic events of September 11 2001, the flag of convenience system was
revealed as a place where terrorists, money-launderers and other criminals can operate
in secrecy. The ITF has launched a campaign to persuade shipping companies not to
register under the Liberian flag, in the view of the State’s deplorable human rights
record. The ITF’s proposals on the identification of beneficial ownership and control of
ships received wide support and were included in IMO discussions, but were not
adopted.
The ITF has acknowledged that it is not logical to boycott ships on the basis of the fact
that they are under flags of convenience when they are flagged out. Under the new
policy, there is a requirement that the unions in the country of beneficial ownership must
give their agreement before the ITF will confirm that such vessels are not under flags of
convenience.78 For the first time, there is the prospect that non-flag of convenience
substandard ships will be included in the campaign. This includes negotiating
acceptable wage agreements with shipowners or else targeting their vessels for boycott or
strike action.79 The definition of flag of convenience has also been redefined to introduce
the concept of “control” when establishing whether a ship has a link between its flag and
its country or ownership or management.
In the light of the discussion above, it is possible to say that flags of convenience
constitute a well-established system that will not disappear completely—something that
has been accepted by the ITF after its 50-year campaign against open registry. What is
needed is to improve the standards under these open registry flags by full implementation of the conventions to which the flag of convenience countries are party.
As of July 1 2002, the following 28 countries have been declared flag of convenience
registries by the FPC.80
—
—
—
—
—
Antigua and Barbuda
Bahamas
Barbados
Belize
Bermuda (UK)
78. According to Peter Scrase, such a requirement can create problems where several unions are in fierce
competition with each other but only one is affiliated to the ITF, as in Russia. This will also create pressure on
an owner or crew to switch unions, which may violate their rights under European law and/or human rights
legislation. For further discussion on the Delhi Policy, see Scrase, P., “Legal Implications of the New ITF
Policy”, LLP Ship Registers Conference, September 22 and 23 1999, London.
79. It has been stated by the General Secretary of the ITF, David Cockroft, that “We must accept that ships
on some national registers are worse, in terms of crew and physical conditions, than the better-managed flag of
convenience ships. The Delhi Policy will enable us to target those vessels and to avoid being accused of any
inconsistencies in our campaign on behalf of the world’s seafarers.” ITF Congress No.5, Tuesday November 3
1998.
80. For an updated list contact ITF, ITF House, 49–60 Borough Road, London SE1 1DR.
32
HAS THE FLAGS OF CONVENIENCE PROBLEM BEEN SOLVED ?
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
1.49
Bolivia
Burma/Myanmar
Cambodia
Cayman Islands (UK)
Comoros
Cyprus
Equatorial Guinea
German International Ship Register (GIS)
Gibraltar (UK)
Honduras
Jamaica
Lebanon
Liberia
Malta
Marshall Islands (US)
Mauritius
Netherlands Antilles
Panama
São Tomé e Príncipe
St Vincent and the Grenadines
Sri Lanka
Tonga
Vanuatu
As stated by the ITF, in today’s world, with second registers, bareboat charter
arrangements and other stratagems designed to get around ITF policy, defining a flag of
convenience is becoming more and more difficult. If ships registered in the countries
listed above can demonstrate that they are genuinely owned in that country, they are not
treated as being under flags of convenience. Equally, ships from countries not on the list
will be treated as flag of convenience vessels if the ITF receives information that they are
beneficially owned in another country.
33
CHAPTER 2
The International Maritime Organization (IMO)
2A INTRODUCTION
The sea constitutes the world’s greatest highway and is used by all nations. Therefore,
shipping and many other maritime activities are international in scope. Despite its use by
many nations, shipping has always been one of the world’s most dangerous occupations.
It was assumed that whoever went to sea was aware of the dangers. The power of the sea
and weather were unpredictable; hence not much could be done to make shipping safer.
During the 19th century, this attitude began to change and the need to improve safety at
sea was accepted. The first set of rules to prevent collisions1 at sea, prepared by the
British Board of Trade in consultation with the French government, came into
operation in 1863. By the end of 1864, these regulations had been adopted by more than
30 maritime countries in the world. In 1889 the first Maritime Conference was held in
Washington to consider regulations for preventing collisions at sea. The regulations
agreed at this conference came into force in many countries in 1897. In 1910, a further
maritime conference was held in Brussels and an international agreement was signed.
During this period, maritime commerce was increasing. However, as maritime
commerce increased, so did the impact of disasters at sea on maritime safety. The Titanic
disaster was the most important of these incidents. The world’s newest and largest
passenger ship, the White Star liner Titanic, sank on her maiden voyage in April 1912.
More than 1,500 passengers and crew died. This incident raised many questions about
the safety standards in force.
In 1914, the British government convened a conference to develop international
regulations. This conference was attended by representatives of 13 countries and the
first International Convention for the Safety of Life at Sea (SOLAS) was adopted on
1. The oldest known statement of marine collision law can be found in the “Rhodian Sea Law”, the
maritime code of the later Roman Empire. The Rhodian Sea Law did not specifically deal with cases of
collision; it codified the negligence liability of the cargo owner at fault in shipwrecks. In marine collision law,
fault was first mentioned in the Digest of Justinian and later codes, where the determining question was
whether there was fault on the part of mariners or not. In the Mediterranean city-states there were many
maritime codes, but only three of them dealt with collision. In the Atlantic and North Sea, the Rolls of Oleron
was the most important code in the development of all maritime law and soon became part of English law.
These maritime codes need to be examined in relation to navigational needs. A complete system of collision
law was not needed, as ships were small and navigation and commerce were not developed. The most
important codes were limited to anchored vessels. There were no rules for the prevention of collisions and for
the division of loss. For detailed information on the historical background of collision law see Healy, N.J. and
Sweeney, J.C., “Basic Principles of the Law of Collision” (1991) 22 Journal of Maritime Law and Commerce,
pp.359–404; Owen, D.R., “The Origins and Development of Marine Collision Law” (1977) 51 Tulane Law
Review, pp.759–809.
35
2.1
2.2
2.2
2.3
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
January 20 1914.2 The title of this Convention was quite significant. Until then, the aim
had been basically to protect the value of the vessel and its cargo. Even the insurance
companies established at that time aimed to provide cover for the vessels and their
contents rather than providing cover for the crew. With SOLAS, for the first time in
shipping, the protection of human life became a priority.
Because of the outbreak of World War I, the Convention did not come into force.
However, another conference was held in London in 1929 and a new version of the
Convention was adopted. The new Convention basically followed the same format of
the 1914 Convention, but included several new regulations. The new Convention
entered into force in 1933. The 1929 conference proposed some minor changes to the
collision rules then in force, but they were never ratified. In 1948 the United Kingdom
hosted another international conference which adopted the third SOLAS Convention.
This Convention had the same pattern as the previous SOLAS Conventions but covered
more vessels with more detailed provisions. The collision regulations were also revised
during this conference in 1948 and the revised rules came into force in 1954.
By the 1950s, each shipping nation had its own maritime laws. There were some
international treaties and agreements which developed as a result of accidents, but these
were not accepted or implemented by all maritime States. Therefore, standards and
requirements varied in different countries. There was an attempt to establish a
permanent international body to deal with shipping, but some countries and shipowners
were not very happy with the idea. They believed that such an international organization
might seek to regulate aspects of shipping which were considered to be more suitable for
regulation by national governments or through commercial arrangements. Consequently, no agreement was reached.3
By the end of World War II, there was a general determination that such a conflict
should never happen again. Many governments believed that there was a need for
international cooperation. As a result the United Nations (UN) organization was
established by universal agreement. Apart from the General Assembly in New York,
specialized UN agencies were established to deal with specific subjects such as food and
agriculture, education, science and culture, health, civil aviation and other matters. The
agencies which already existed were brought within the framework of the UN.
2B ESTABLISHMENT OF THE IMO
2.4
In 1948, an international conference was convened by the UN in Geneva to consider
the establishment of a new organization to deal with international shipping. This
conference adopted the Convention establishing the new organization, which was
2. The Convention introduced new international requirements dealing with safety of navigation for all
merchant ships. These requirements included the provision of watertight and fire-resistant bulkheads;
life-saving appliances; fire prevention and firefighting appliances on passenger ships. There were also
requirements for the carriage of radiotelegraph equipment for ships carrying more than 50 persons.
3. In 1889, an international maritime conference was held in Washington to set up a permanent
international body for shipping. But the idea was rejected and the Conference announced that “for the present
the establishment of a permanent international maritime commission is not considered expedient”.
“The reason behind the rejection of this idea, although not stated explicitly, was that the shipping industry
was suspicious of any attempt to control its activities and restrict its commercial freedom.” See IMO, “IMO
1948–1988: a process of change”, Focus on IMO, September 1998, p.1.
36
ESTABLISHMENT OF THE IMO
2.5
originally called the Inter-Governmental Maritime Consultative Organization. The
name was changed to the International Maritime Organization (IMO) in 1982.
The original mandate of the IMO was very wide and was summarized in Art. 1:
(a) To provide machinery for co-operation among Governments in the field of
governmental regulation and practices relating to technical matters of all kinds
affecting shipping engaged in international trade, and to encourage the general
adoption of the highest practicable standards in matters concerning maritime safety
and efficiency of navigation;
(b) To encourage the removal of discriminatory action and unnecessary restrictions by
Governments affecting shipping engaged in international trade so as to promote the
availability of shipping services to the commerce of the world without discrimination;
assistance and encouragement given by a Government for the development of its
national shipping and for purposes of security does not in itself constitute
discrimination, provided that such assistance and encouragement is not based on
measures designed to restrict the freedom of shipping of all flags to take part in
international trade;
(c) To provide for the consideration by the Organization of matters concerning unfair
restrictive practices by shipping concerns in accordance with Part II;
(d) To provide for the consideration by the Organization of any matters concerning
shipping that may be referred to it by any organ or specialized agency of the United
Nations;
(e) To provide for the exchange of information among Governments on matters under
consideration by the organization.
The Convention required for its entry into force the acceptance of 21 States, including
seven with at least 1 million gt of shipping each. It was hoped that the Convention would
enter into force relatively quickly. Because of the continuing suspicion of some
governments about the role of an international organization, it took ten years for the
IMO Convention to receive enough acceptances to enter into force. For some countries
Art. 1 was not acceptable. Some believed that it would interfere with their own national
shipping industry and laws. In other words, for some States the role of the Organization
should be limited to technical matters, while others believed that the Organization
should extend its activities to embrace economic matters.
By the mid-1950s, new problems were arising; the 1948 SOLAS Convention needed
revision, oil pollution was becoming a more and more serious problem. In 1954, the
International Convention for the Prevention of Pollution by Oil was adopted. Article
XXI of this Convention stated that responsibilities for the Convention would be taken
over by the International Maritime Organization as soon as it came into being. On
March 17 1958, Egypt became the 21st State to accept the IMO Convention and the
Convention entered into force.4 But many contracting parties registered declarations or
reservations5 that basically restricted the Organization’s activity areas. By the time the
new Organization met for the first time in 1959, so many reservations had been
submitted that the IMO would not have been able to engage in any activities that might
4. The question of funding was left to the IMO Assembly to decide. During the First Assembly, under
resolution A.20(I) it was agreed that each member should pay a basic assessment to be determined by the
percentage of its contribution to the UN. Each member would additionally have to pay an additional
assessment determined by the gross registered tonnage of its merchant marine. In practice, contributions to
the IMO budget are based primarily on shipping tonnage rather than national wealth.
5. Many countries used identical wording and stated that “it is in the field of technical and nautical matters
that the Organization can make its contribution towards the development of shipping and seaborne trade
throughout the world. If the Organization were to extend its activities to matters of a purely commercial or
economic nature, a situation might arise where the Government (of the country concerned) would have to
consider resorting to the provisions regarding withdrawal.” UN Treaty series for 1958 No.4214.
37
2.5
2.5
2.6
2.7
2.8
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
have been regarded as economic or commercial. Its activities had to be limited mainly to
technical issues, the most important of which was safety.
Because it took so long for the IMO Convention to enter into force, by the time the
Organization met for the first time there was an immediate need for revision. In the
1960s, membership of the IMO began to grow because of the emergence of new nations,
many of them having an interest in maritime affairs. In 1964, at the Second
Extraordinary Session of the Assembly, the IMO adopted an amendment to the
Convention and increased the size of the Council to 18. The amendments entered into
force in 1967. With the amendments in 1965, the membership of the Maritime Safety
Committee increased to 16. The amendment entered into force in 1968. The 1964 and
1965 amendments were particularly important because they acknowledged the fact that
the membership of the IMO was not just growing, but also changing. As more and more
developing countries joined the Organization, the dominance of the traditional maritime
countries started to come to an end. The changes in the nature of member countries of
the IMO have also been reflected in the 1974 amendments. At the Fifth Extraordinary
Session of the IMO in October 1974, the Council membership had been increased to 24
member States. The change in membership was done by the adoption of Resolution
A.316 (ES.V), which stated that “a high number of the members of the Organization is
constituted by developing countries and that such fact has not so far been reflected in the
composition of the governing bodies of the Organization”. The Resolution declares that
the amendments were adopted “as a recognition of the need for wider and more
equitable representation in the Council and all sectors interested in the work of the
Organization, having regard to the increased membership of the Organization and the
need to improve the representation of developing countries in the Council”.
While the attitude towards membership of the IMO was changing, its work
programme had also changed. The Torrey Canyon disaster in 1967 showed that there
was no internationally agreed means of responding to accidents that had environmental
implications, nor for enabling compensation to be paid. Following this incident, the
IMO established a Legal Committee to deal with the deficiencies in the international
system for assessing liability and compensation for oil-spill damage, and a new
subcommittee of the Maritime Safety Committee (MSC) to deal with environmental
issues. By the mid-1970s, both subjects were recognized as important enough to become
a permanent part of the IMO work programme. When Art. 1 of the IMO Convention
(the aims of the Organization) was examined closely, one thing that was noticeable was
the absence of any reference to marine pollution or the environment. Even maritime
safety was mentioned only briefly. The emphasis was on economic action to promote
“freedom” and end “discrimination”. With the 1975 amendments, Art. 1 of the
Convention was changed by adding to the list of purposes “the prevention and control of
marine pollution from ships; and to deal with legal matters related to the purposes set out
in this Article”. A new Marine Environment Protection Committee (MEPC) was
formed by Resolution A.358(IX). The Legal Committee and the new MEPC were
raised to the same status as the Maritime Safety Committee (MSC). The name of the
Organization changed from Inter-Governmental Maritime Consultative Organization
(IMCO) to the International Maritime Organization (IMO). The amendments entered
into force in 1982.
Under the original IMO Convention the functions of the IMO had been stated as
38
STRUCTURE OF THE IMO
2.10
“consultative and advisory”.6 By the 10th Assembly, the changing role of the IMO was
further recognized and Art. 2, which limited the IMO’s role to being consultative and
advisory, was deleted.7 The Technical Co-operation Committee, which was established
in 1969, was raised to the same status as the MSC, Legal Committee and MEPC. This
change showed the importance of technical co-operation activities within the IMO. In
1979 the Assembly adopted further amendments which again increased the size of the
Council, this time to 32. Both the 1977 and 1979 amendments entered into force in
1984.
In 1991, further amendments were adopted to raise the Facilitation Committee to the
same status as other committees. This committee seeks to standardize the documentary
procedures involved in international maritime trade. In 1993, the 18th Assembly
adopted amendments which again increased the size of the Council.
Shipping has changed greatly since the adoption of the IMO Convention and
accordingly the IMO Convention has been revised so many times that it is completely
different from the instrument that was adopted in Geneva in 1948. These changes reflect
the developments in shipping and politics. Amendments were made to open up the
Organization to the participation of all IMO member States. Under the 1948
Convention, only the Assembly was open to all member States. Today only the Council
is an elected body. Without the amendments made to the original Convention the IMO
would not have been able to respond to the changes that have taken place in shipping. At
present, the Organization has 164 member States and three associate members. These
countries control more than 98.48 per cent of the world’s merchant marine tonnage.
2.9
2 C S T R U C T U R E O F T H E I M O8
Article 11 of the IMO Convention states that “The Organization shall consist of an
Assembly, a Council, a Maritime Safety Committee, a Legal Committee, a Marine
Environment Protection Committee, a Technical Co-operation Committee and such
6. Part II, Art. 2 declared: “The functions of the Organization shall be consultative and advisory”.
7. The modified Art. 2 of the Convention on the International Maritime Organization states as follows:
“PART II
Functions
Article 2
In order to achieve the purposes set out in part I, the Organization shall:
(a) Subject to the provisions of Article 3, consider and make recommendations upon matters arising
under Article 1(a), (b) and (c) that may be remitted to it by its members, by any organ or
specialized agency of the United Nations or by other intergovernmental organization or upon
matters, referred to it under Article 1(d);
(b) Provide for the drafting of Conventions, agreements, or other suitable instruments, and
recommend these to Governments and to intergovernmental organizations, and convene such
conferences as may be necessary;
(c) Provide machinery for consultation among members and the exchange of information among
Governments;
(d) Perform functions arising in connection with paragraphs (a), (b) and (c) of this Article, in
particular those assigned to it by or under international instruments relating to maritime matters
and the effect of shipping on the marine environment;
(e) Facilitate as necessary, and in accordance with part X, technical co-operation within the scope of
the Organization.”
8. IMO, “Structure”, http://www.imo.org
39
2.10
2.10
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
subsidiary organs as the Organization may at any time consider necessary; and a
Secretariat”.
The main organs of the IMO consist of an Assembly, a Council and five Committees:
the Maritime Safety Committee; Marine Environment Protection Committee; Legal
Committee; Technical Co-operation Committee; and a Facilitation Committee. The
Facilitation Committee and a number of subcommittees support the work of the main
technical committees.
2C.1 The Assembly
2.11
2.12
The Assembly is the highest governing body of the Organization. It consists of all
member States, and it meets once every two years in regular sessions. If necessary, it also
meets in extraordinary sessions. All 164 member States and three associate members are
entitled to attend the Assembly, as are the inter-governmental organizations with which
agreements on co-operation have been concluded and non-governmental organizations
that have consultative status with the IMO.
The Assembly approves the work programme and all recommendations, votes for the
budget, and determines the financial arrangements of the Organization. It also elects the
Council. It is basically the main legislative organ. It adopts Resolutions which will be
recommended to member States for action and takes decisions with regard to convening
any international conferences.
During its 21st session,9 the 21st Assembly approved the work programme for the next
biennium and long-term objectives for the 2000s, which are identified as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
taking measures to implement the proactive policy agreed in the 1990s more
actively than in the past, so that trends which might adversely affect the safety
of ships and those on board and/or the environment may be identified at the
earliest feasible stage and action taken to avoid or mitigate such effects. In
implementing this directive, Formal Safety Assessment should be used to the
extent possible in any rule-making process;
shifting emphasis onto people;
ensuring the effective uniform implementation of existing IMO standards and
regulations;
developing a safety culture and environmental conscience;
avoiding excessive regulation;
strengthening the Organization’s technical cooperation programmes; and
promoting the intensification by governments and industry of efforts to
prevent and suppress unlawful acts which threaten the security of ships, the
safety of those on board and the environment (in particular, terrorism at sea,
piracy and armed robbery against ships, illicit drug trafficking, illegal migration
by sea and stowaway cases);
continuing to observe Resolution A.500(XII), Objectives of the Organization
in the 1980s, and Resolution A.777(18), Work methods and organization of
work.
The Assembly held its 23rd session at its London headquarters from November 24 to
9. IMO Assembly, 21st session, November 15–26 1999.
40
STRUCTURE OF THE IMO
2.12
December 5 2003. The Assembly was attended by around 1,000 delegates representing
149 member States and three associate members; representatives from the UN and
specialized agencies; and observers from six intergovernmental organizations and 30
non-governmental organizations. During the 23rd session the Assembly adopted 30
resolutions. Other issues covered by resolutions included the Organization’s work
programme and budget for the biennium 2004–2005 and resolutions on technical issues
relating to the Organization’s work on safety and security of shipping and prevention of
marine pollution by ships.
The adopted Resolutions are as follows:
— A.936(23) Appreciation of the services to the Organization of Mr. William A.
O’Neil
— A.937(23) Approval of the appointment of the Secretary-General
— A.938(23) Relations with non-governmental organizations
— A.939(23) Appointment of external auditor
— A.940(23) Arrears of contributions
— A.941(23) Presentation of accounts and audit reports
— A.942(23) Work programme and budget for the 23rd financial period
2004–2005
— A.943(23) Long-term work plan of the Organization (up to 2010)
— A.944(23) Strategic plan for the Organization (for six-year period 2004 to
2010)
— A.945(23) 1991 Amendments to the Convention on the International Maritime
Organization (Institutionalization of the Facilitation Committee)
— A.946(23) Voluntary IMO member audit scheme
— A.947(23) Human Element vision, principles and goals for the Organization
— A.948(23) Revised survey guidelines under the Harmonized System of Survey
and Certification
— A.949(23) Guidelines of places of refuge for ships in need of assistance
— A.950(23) Maritime Assistance Service (MAS)
— A.951(23) Improved guidelines for marine portable fire extinguishers
— A.952(23) Graphical symbols for shipboard fire control plans
— A.953(23) Worldwide radionavigation system
— A.954(23) Proper use of VHF channels at sea
— A.955(23) Amendments to the principles of safe manning (Resolution
A.890(21))
— A.956(23) Amendments to the guidelines for the onboard operational use of
shipborne Automatic Identification Systems (AIS) (Resolution A.917(22))
— A.957(23) Amended Traffic Separation Scheme off Finisterre
— A.958(23) Provision of hydrographic services
— A.959(23) Format and guidelines for the maintenance of Continuous Synopsis
Record (CSR)
— A.960(23) Recommendations on training and certification and operational
procedures for maritime pilots other than deep-sea pilots
— A.961(23) Wider acceptance of the Protocol relating to the International
Convention on Load Lines, 1966
— A.962(23) IMO Guidelines on ship recycling
— A.963(23) IMO Policies and practices related to the reduction of greenhouse
gas emissions from ships
41
2.12
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
— A.964(23) Follow-up action to UNCED and WSSD
— A.965(23) Development and improvement of partnership agreements for
technical co-operation
2.13
2C.1(i) Conferences approved
The Assembly approved the holding of the following Conferences to adopt new or
amend existing regulations:
— Conference to adopt a new International Convention for the Control and
Management of Ships’ Ballast Water and Sediments, to be held February 9–13
2004.
— One legal conference to be held in the biennium 2004–2005—this will adopt
either revisions to the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation 1988, and its Protocol of 1988 relating to
Fixed Platforms Located on the Continental Shelf (SUA Convention and
Protocol), or a new Wreck Removal Convention.
2C.2 The Council
2.14
The Council is the executive organ of the IMO and is responsible, under the
Assembly, for supervising the work of the Organization. Originally, it was composed of
32 member States elected by the Assembly for two-year terms beginning after each
regular session of the Assembly. Following the entry into force on November 7 2002 of
the 1993 amendments to the IMO Convention, eight additional members have taken
their places on the IMO Council and expanded the size of the Council to 40 member
States from 32. The amendments increased the size of the Council to 40, with groups (a)
and (b) increased to 10, and group (c) to 20, member States. The IMO Convention
provides that in electing the members of the Council the Assembly shall observe the
following criteria:
(a) ten shall be States with the largest interest in providing international shipping
services;
(b) ten shall be other States with the largest interest in international seaborne trade;
and
(c) twenty shall be States not elected under (a) or (b) above that have special
interests in maritime transport or navigation and whose election to the Council
will ensure the representation of all major geographic areas of the world.
Between sessions of the Assembly, the Council performs all the functions of the
Assembly, apart from the function of making recommendations to governments on
maritime safety and pollution prevention. This function is reserved for the Assembly by
Art. 15(j) of the IMO Convention.10 The other functions of the Council are to:
(i)
coordinate the activities of the organs of the Organization;
10. Article 15(j) of the Convention on the International Maritime Organization states as follows:
“(j) To recommend to Members for adoption regulations and guidelines concerning maritime safety, the
prevention and control of marine pollution from ships and other matters concerning the effect of shipping
on marine environment assigned to the Organization by or under international instruments, or
amendments to such regulations and guidelines which have been referred to it.”
42
STRUCTURE OF THE IMO
(ii)
(iii)
(iv)
(v)
2.15
consider the draft work programme and budget estimates of the Organization
and submit them to the Assembly;
receive reports and proposals of the committees and other organs and submit
them to the Assembly and member States, with comments and recommendations as appropriate;
appoint the Secretary-General, subject to the approval of the Assembly;
enter into agreements or arrangements concerning the relationship of the
Organization with other organizations, subject to approval by the Assembly.
The members of the Council elected by the 23rd Assembly for 2004 and 2005 are as
follows:
Category (a)
Eight States with the largest interest in providing international shipping services: China, Greece,
Italy, Japan, Norway, Panama, Republic of Korea, Russian Federation, United Kingdom, United
States;
Category (b)
Eight other States with the largest interest in international seaborne trade: Argentina, Bangladesh,
Brazil, Canada, France, Germany, India, Netherlands, Spain, Sweden; and
Category (c)
Sixteen States not elected under (a) or (b) above that have special interests in maritime transport
or navigation, and whose election to the Council will ensure the representation of all major
geographic areas of the world: Algeria, Australia, Bahamas, Chile, Cyprus, Denmark, Egypt,
Ghana, Indonesia, Malta, Mexico, Nigeria, The Philippines, Poland, Portugal, Saudi Arabia,
Singapore, South Africa, Turkey, Venezuela.
2C.3 Maritime Safety Committee (MSC)
The MSC is the highest technical body of the Organization. It consists of all member
States. It considers any matter within the scope of the Organization concerned with aids
to navigation, construction and equipment of vessels, manning from a safety standpoint,
rules for the prevention of collisions, handling of dangerous cargoes, maritime safety
procedures and requirements, hydrographic information, log-books and navigational
records, maritime casualty investigation, salvage and rescue, and any other matters
directly affecting maritime safety. The Committee also provides machinery for
performing any duties assigned to it by the IMO Convention or any duty within its scope
of work which may be assigned to it by or under any international instrument and
accepted by the Organization. It also has the responsibility for considering and
submitting recommendations and guidelines on safety for possible adoption by the
Assembly.11
11. The Maritime Safety Committee and the Marine Environmental Protection Committee are assisted in
their work by nine subcommittees which are open to all member States. They deal with the following subjects:
— Bulk Liquids and Gases (BLG)
— Carriage of Dangerous Goods, Solid Cargoes and Containers (DSC)
— Fire Protection (FP)
— Radiocommunications and Search and Rescue (COMSAR)
— Safety of Navigation (NAV)
— Ship Design and Equipment (DE)
— Stability and Load Lines and Fishing Vessels Safety (SLF)
— Standards of Training and Watchkeeping (STW)
— Flag State Implementation (FSI)
43
2.15
2.15
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
The “expanded MSC” adopts amendments to Conventions such as SOLAS and
includes all member States, as well as those countries which are party to Conventions
such as SOLAS even if they are not IMO member States.
2C.4 Legal Committee
2.16
Following the Torrey Canyon disaster, the Legal Committee was established as a
subsidiary body to deal with legal questions which arose following this incident. It was
not a permanent working body of the IMO. At the same time, some of the international
organizations that had just been established started to contend with or duplicate the
competence of the IMO in matters of legal regulation in the commercial shipping field.
In 1964, UNCTAD was established, and in the following year the Committee on
Shipping was set up. The Working Group on International Shipping Legislation was
established by this committee and its programme included the revision of existing, and
the development of new, international instruments in the commercial shipping field. In
1966, the United Nations Commission on International Trade Law (UNCITRAL) was
established and its programme also included the development of international
agreements in the field of carriage of goods by sea. Following these developments, the
IMO Council adopted a resolution12 that recognized the need for the progressive
harmonization and unification of all aspects of international law in the maritime field
and the necessity to coordinate the efforts of various UN organizations in order to avoid
duplication of work. The resolution also indicated the IMO’s intention to exercise its full
competence by taking part in legal work in the maritime field being carried out within the
UN system.13 In order to ensure enforcement of this resolution, the 9th session of the
Assembly adopted amendments to the IMCO Convention.14 In accordance with these
amendments, the Legal Committee was institutionalized as one of the main working
organs and reference to dealing with legal matters related to the purposes of the
Organization was inserted in Art. 1.15
According to Arts. 32 and 33 of the amended IMO Convention, the Legal Committee
consists of all member States of the IMO and deals with any legal matters within the
scope of the Organization. The Committee also has the power to perform any duties
within its scope that may be assigned by, or under, any other international instrument
and accepted by the Organization.
2C.5 Marine Environment and Protection Committee (MEPC)
2.17
The MEPC was first established as a subsidiary body of the Assembly and gained its
full constitutional status in 1985. It has the power to consider any matter within the
12. Resolution C.44 (XXI) “Activities in the Field of Maritime Law”.
13. Ivanov, G., “The role of IMO in the development of international maritime law”, IMO News, Number
1, 1997.
14. Resolution A.358 (IX).
15. Despite the concern and pleas of the IMO Council, the other international organizations, especially
UNCTAD, continued to develop international rules in maritime law. The problems about duplication of work
and definition of responsibilities between the Legal Committee and appropriate bodies of UNCTAD were
resolved by adopting an agreement during the 50th session of the Council. According to this agreement, issues
which are considered as involving essential technically related matters would be dealt with by IMO with
appropriate cooperation or contribution from UNCTAD. Issues which are considered as involving essential
economic, commercial or related matters would be dealt with by UNCTAD with co-operation and
contribution, as necessary, from IMO. And finally, issues which are considered or agreed as involving
44
STRUCTURE OF THE IMO
2.20
scope of the Organization concerned with prevention and control of pollution from
ships. It is particularly concerned with the adoption and amendment of Conventions
and other regulations and measures to ensure their enforcement. The Committee
consists of all member States.
2C.6 Technical Co-operation Committee
This Committee consists of all member States and was established in 1969 as a
subsidiary body of the Council. It was institutionalized by means of an amendment to
the Convention which entered into force in 1984.
The Committee considers any matter within the scope of the Organization concerned
with the implementation of technical co-operation projects for which the Organization
acts as the executing or co-operating agency and any other matters related to the
Organization’s activities in the technical co-operation field.
2.18
2C.7 Facilitation Committee
This committee is a subsidiary body of the Council. It was established in 1972. All
member States of the IMO can participate in the Facilitation Committee. It deals with
the IMO’s work in eliminating unnecessary formalities and “red tape” in international
shipping.16
When the 1991 amendments to the IMO Convention come into force they will
institutionalize the Facilitation Committee, putting it on the same footing as the other
committees. However, these amendments have not yet received enough acceptances to
come into force.
2.19
2C.8 Secretariat
The Secretariat consists of the Secretary-General and nearly 300 personnel based at
the headquarters of the Organization in London.
significant economic, commercial or related matters as well as significant technical or technically related
matters would be further examined with a view to determining the best modalities for joint or co-operative
action, including agreement on whether IMO or UNCTAD should be the “leading body”. Ivanov, G., pp.4–5.
16. Shipping has always been subject to many regulations because of its international nature. Although the
information sought was often the same, the actual number of separate documents required varied from port to
port. A report, Merchant Shipping on a Sea of Red Tape, prepared by the US Pacific Coast shipping industry in
cooperation with the School of World Business (1959) compared the documentary requirements and
procedures associated with international shipping with those related to the international airline industry.
According to this report, merchant ships were foundering in self-inflicted bureaucracy. The report
recommended that all possible efforts should be directed towards intergovernmental action, preferably
through IMO. In 1961 an Expert Group convened and recommended that an international Convention be
adopted to assist the facilitation of international maritime traffic. The Convention on Facilitation of
International Maritime Traffic (FAL) was adopted in 1965. Under this Convention, the contracting parties
45
2.20
2.21
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
2D FUNCTIONS OF THE IMO
2.21
2.22
The IMO Assembly met for the first time on January 6 1959. The first task of the
Organization was to adopt a new version of the SOLAS Convention.17 The IMO also
accepted responsibilities regarding the International Regulations for Preventing Collisions at Sea, the International Code of Signals and the International Convention for the
Prevention of Pollution of the Sea by Oil (OILPOL). In May 1960, the IMO convened
its first diplomatic conference to consider the new SOLAS Convention. The conference
was attended by delegates from 55 countries and adopted the 1960 SOLAS Convention
to replace the 1948 version. The new Convention entered into force in 1965 and covered
a wide range of measures designed to improve the safety of shipping. The 1960
conference also adopted a new set of International Regulations for the Prevention of
Collisions at Sea to replace the earlier regulations of 1948. It also adopted 56
resolutions. Most of these regulations were calling for action by the IMO, such as
undertaking studies, collecting and disseminating information or taking other actions.
In practice these resolutions provided the work programme of the Organization for more
than a decade.
The success of the IMO in adopting the 1960 SOLAS Convention meant that other
existing agreements could be handed over to the new Organization. In 1962, the IMO
arranged a conference which adopted a number of amendments to the OILPOL
Convention. At that stage, marine pollution from ships was seen as being limited to oil
pollution, which meant operational pollution. And accidental pollution was not
considered at all, mainly because there had never been a major oil spill. During the 1960s
the IMO started to deal with emergencies. In March 1967 the Torrey Canyon ran
aground while entering the English Channel and spilled her entire cargo of 120,000
tonnes of oil into the sea. This incident was the world’s first major oil pollution disaster
and proved to be one of the IMO’s greatest challenges. It adopted the 1969 Intervention
Convention, enabling a government to take action if an accident in international waters
threatened its coastline with pollution. It also developed a two-tier system, in the 1969
Civil Liability Convention and the 1971 Fund Convention, for compensating victims of
pollution. From this point onwards, the protection of the marine environment became a
major objective for the Organization. In 1973, the International Convention for the
Prevention of Pollution from Ships (MARPOL) was adopted to cover pollution by oil,
chemicals, harmful substances in packaged form, sewage and garbage.18 After the Torrey
Canyon incident, the IMO was frequently called upon to respond to emergencies. In
1976–77, a series of tanker accidents off the coast of North America including the
undertake to bring about uniformity and simplicity in the facilitation of international maritime traffic. The
Convention entered into force in 1967 and outlines general principles relating to international maritime
facilitation. See IMO, “Cutting red tape, IMO and the facilitation of maritime travel and transport”, Focus on
IMO, December 1996.
17. It was originally intended that the 1948 SOLAS Convention would be kept up to date by periodic
amendments adopted under the auspices of IMO. However, the ratification of IMO Convention took much
longer than intended and the new Organization could not meet until 1959. Therefore, it was decided that
rather than amend the 1948 Convention, it would be better to adopt a new instrument.
18. The adoption of MARPOL was a significant move, explained by the London-based Oil Companies
International Marine Forum (OCIMF) as follows: “The 1973 Convention represents an historic and major
step forward in the prevention of pollution from ships. It extends the existing restrictions upon operational
pollution by oil and requires both equipment and design features in tankers and other ships, while also
introducing controls against other forms of pollution from ships.” Cited in IMO, “MARPOL—25 years”,
Focus on IMO, October 1998, p.1.
46
FUNCTIONS OF THE IMO
2.23
stranding of the Argo Merchant19 led to changes being made to the SOLAS and
MARPOL Conventions. In response to these accidents, the IMO held a Conference on
Tanker Safety and Pollution Prevention in February 1978. The Conference adopted
measures affecting tanker design and operation, which were incorporated in both the
Protocol of 1978 relating to the 1974 SOLAS Convention and the Protocol of 1978
relating to the 1973 MARPOL Convention.
In March 1987 the ro-ro ferry Herald of Free Enterprise capsized and sank with the loss
of 188 lives.20 Over a year later, a series of amendments to SOLAS 1974 were adopted
and entered into force on October 22 1989. A second group of amendments was
adopted in October 1988 and entered into force in April 1990. Despite all these
amendments, in 1994 another passenger ro-ro ferry, the Estonia, sank with the loss of
more than 900 lives. Following this incident, in 1994, three new chapters were added to
the SOLAS Convention. One of them made the International Safety Management
(ISM) Code mandatory. The Code was first developed as a result of the Herald of Free
Enterprise disaster and designed to make safety the first priority for shipping company
management. In 1995, major changes were made to the 1978 Standards of Training,
Certification and Watchkeeping (STCW) Convention. Under the amendments, which
entered into force on February 1 1997, parties to the Convention were required to
submit information to the IMO concerning their training, certification and other
procedures so that their ability to implement the Convention could be assessed. This
requirement was the most radical feature of the amendments, as it was the first time the
IMO had ever been given such authority over governments. In December 2000 the
so-called “White List” of countries deemed to be giving “full and complete effect” to the
revised STCW Convention was published.
In 1996, the IMO adopted the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances (HNS) by sea, which provides for a compensation and liability regime for
incidents involving these substances. A diplomatic conference held in March 2001
reached agreement on the details of the International Convention on Civil Liability for
Bunker Oil Pollution Damage 2001. The Convention will establish a liability and
compensation regime for spills of oil when carried as fuel in ships’ bunkers. Current
regimes covering oil spills do not include bunker oil spills from vessels other than
tankers. The new Convention applies to ships over 1,000 gt. It will enter into force one
year after the date on which 18 States, including five States each with ships whose
combined gross tonnage is not less than 1 million gt have either signed it without
reservation as to ratification, acceptance or approval or have deposited instruments of
ratification, acceptance, approval or accession with the IMO Secretary-General.21
Following the terrorist atrocities in the US in September 2001, the IMO has seen a
19. The Argo Merchant ran aground off Massachusetts in December 1976. It was a small tanker, carrying
27,000 tonnes of oil, but caused huge public concern because the oil slick threatened New England resorts and
Georges Bank fishing ground.
20. The vessel was lost shortly after leaving Zeebrugge in Belgium. The accident occurred because the bow
door was left open when the ship left port, allowing water to enter and flood the car deck. The first ro-ro ship to
be lost at sea was the Princess Victoria, a rail ferry which sank on a voyage to Belfast in 1953 when heavy seas
stove in the stern door: 133 lives were lost. In 1966 the Greek ferry Heraklion sank in heavy seas on a voyage to
Piraeus: at least 264 people died. The cargo ro-ro Hero was lost in 1977, partly as a result of water entering
through a leaking stern door. See IMO, “IMO and ro-ro safety”, Focus on IMO, January 1997, pp.3–4.
21. See IMO, “IMO adopts Convention on liability and compensation for pollution from ships’ bunkers”,
IMO Briefing, March 23 2001.
47
2.23
2.23
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
renewed focus on security issues. A new, comprehensive security regime for international shipping is set to enter into force in July 2004 following the adoption by a
week-long diplomatic conference in December 2002 of a series of measures to
strengthen maritime security and prevent and suppress acts of terrorism against
shipping.
The IMO’s chief concern, developing treaties and other legislation concerning safety
and marine pollution prevention, had been largely completed by the late 1970s. After
that, it concentrated on keeping legislation up to date and ensuring that it is ratified by as
many countries as possible.
2E TACIT ACCEPTANCE
2.24
2.25
The amendment procedures contained in the first Conventions to be developed under
the auspices of the IMO were so slow that some amendments adopted have never
entered into force.
For instance, the SOLAS Convention could not respond to lessons learnt from major
disasters and keep in line with technical developments because of the nature of the
amendment procedure adopted at the 1960 Conference. The amendment procedure
incorporated in the 1960 Convention stipulated that an amendment would only enter
into force when it had been accepted by two-thirds of contracting governments.
Therefore contracting governments were required to take positive action to accept the
amendment. This procedure was satisfactory when it was adopted; most of the
international treaties were ratified by a small number of countries. When the SOLAS
Convention was adopted it had to be accepted by only 15 countries, seven of which had
fleets consisting of at least 1 million gt of merchant shipping. However, during the 1960s
the membership of the UN and international organizations like the IMO started to grow.
Consequently, the number of parties to the SOLAS Convention grew steadily. By the
late 1960s, the number of parties to the SOLAS Convention had reached 80 and the
total was rising all the time. This increase affected the number of ratifications required to
meet the two-thirds target needed for the entry into force of the SOLAS amendments.
Parties to the Convention were supposed to signify their acceptance of the amendment
by submitting an appropriate legal instrument to the IMO. This usually involved some
form of parliamentary procedure by the government concerned. Depending on the
interest of the relevant government in maritime affairs, this could take years. It became
clear that it would take so long for many amendments, including those to SOLAS, to
enter into force and become international law, that, by the time the process was
complete, the amendment itself would probably be out of date.22 This situation had
serious implications for the IMO and for the shipping industry. The IMO was in the
situation that it could adopt treaties that became out of date within a few years, but could
not amend them according to changes in the shipping world.
By 1968, the 20th anniversary of the adoption of the IMO Convention, many member
States were not happy with the progress that had been made up to that time.23 During the
20th session of the IMO Council in May 1968, Canada submitted a paper and stated
that “the anticipations of 20 years ago have not been fulfilled” and also complained
22. See IMO, “SOLAS: the International Convention for the Safety of Life at Sea, 1974”, Focus on IMO,
October 1998.
23. See IMO, Focus on IMO, September 1998, pp.8–13.
48
TACIT ACCEPTANCE
2.26
about the effort required by the member States in attending meetings and dealing with
technical problems raised by the IMO. During this period, the IMO’s workload was
constantly increasing. The paper was discussed by the Council and a working group,
established to work on the objectives of the IMO, outlined the list of activities which the
Organization could undertake in the field of maritime transport. These were much
broader than the programmes undertaken by the IMO in the past. The working group
reported to the Council again at its 22nd session in May 1969 and made proposals for
improving the IMO’s working methods. The most important of these concerned
procedures for amending the various Conventions that had been adopted under the
IMO’s auspices. As explained above, the main problem facing the IMO was that most of
its Conventions could only be updated by using the “classical” amendment procedure.
The Council approved the working group’s proposal to undertake a comparative study
of the Conventions for which the IMO is depositary and similar instruments for which
other members of the UN are responsible. The study showed24 that these organizations
were able to amend technical and other regulations, and that these amendments became
binding on member States without further act or ratification. Acceptance was not
required either. The main problem for the IMO was that, according to Art. 2 of the IMO
Convention, the IMO’s functions were to be “consultative and advisory”. Therefore, the
IMO had no authority to adopt or to amend Conventions.
Following discussions at the 7th Assembly in 1971, resolution A.249(VII) was
adopted. The resolution referred to the need for an amendment procedure and called for
the Legal Committee and MSC to prepare draft proposals for consideration by the 8th
Assembly.25 The amendment procedure was discussed by the MSC at its 25th session in
1972. The same year, the Legal Committee established a working group to consider the
subject and prepared a preliminary study on the basis of the working group’s report
which referred to the disadvantages of the classical amendment system. The study also
stated that “the remedy for this, which has proved to be workable in practice, in relation
to a number of Conventions, is what is known as the ‘tacit’ or ‘passive’ acceptance
procedure. This means that the body which adopts the amendment at the same time
fixes a time period within which the contracting parties will have the opportunity to
notify either their acceptance or their rejection of the amendment, or to remain silent on
the subject. In case of silence, the amendment is considered to have been accepted by the
party.”26 The idea of tacit acceptance quickly became popular. The International
Chamber of Shipping, which had consultative status with the IMO, gave nongovernmental support to the idea. When the Legal Committee met for its 14th session in
September 1972, it was generally accepted that the tacit acceptance procedure was the
24. The Council examined the procedures of four other UN agencies: the International Civil Aviation
Organization (ICAO), the International Telecommunications Union (ITU), the World Meteorological
Organization (WMO), and the World Health Organization (WHO). Ibid., p.9.
25. There was an urgent need for the revision of the amendment procedure. IMO was preparing a number
of new Conventions for adoption during the next few years and they all needed an easier amendment
procedure rather than the classical amendment procedure. Conferences to consider a new Convention on the
International Regulations for Preventing Collisions at Sea and an International Convention for Safe
Containers were both scheduled for 1972; a Convention dealing with the Prevention of Marine Pollution from
Ships was scheduled for 1973 and a conference to revise SOLAS Convention was scheduled for 1976.
26. LEGXII/8 Annex II, p.8. Cited in IMO, “IMO 1948–1998: a process of change”, Focus on IMO,
September 1998, p.11, n.13.
49
2.26
2.26
2.27
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
best solution.27 Under the new procedure, an amendment to a Convention enters into
force on a specified date unless it is rejected by one-third of contracting parties or by
contracting parties whose combined fleets represent 50 per cent of world tonnage. In
other words, instead of contracting governments having to take positive action to accept
an amendment, it is assumed that governments are in favour of the amendment unless
they take positive action to make their objection known. This procedure had advantages
both for the governments and for the shipping industry. Apart from speed, tacit
acceptance means that everyone involved knows exactly when an amendment will enter
into force. Under the old system, it was not possible to know the date until the final
acceptance was actually deposited with the IMO. Without tacit acceptance, it would not
be possible to keep the Conventions up to date. The IMO’s stature would be reduced to
that of an organization which could adopt treaties, but not amend them according to
changes in the shipping world. This procedure enables the IMO to respond promptly to
urgent matters at international level.
The tacit acceptance procedure28 has now been incorporated into the majority of the
IMO’s technical Conventions and has been extended to some other instruments as well.
The effectiveness of the procedure can be seen most clearly in the case of the SOLAS
Convention 1974. Article VIII of the Convention states that the amendments to the
chapters (other than chapter I) of the Annex, which contain the Convention’s technical
provisions, shall be deemed to have been accepted within two years (or a different period
fixed at the time of adoption) unless they are rejected within a specified period by
one-third of contracting governments or by contracting governments whose combined
merchant fleets represent not less than 50 per cent of world gross tonnage. SOLAS 1974
has been amended on 16 occasions since then. During the amendment process, some
chapters have been updated more than ten times and four completely new chapters have
been added. These amendments have usually entered into force around two years after
being adopted. However, the 1988 (April) amendments to SOLAS, which were adopted
as a result of the Herald of Free Enterprise29 ferry disaster, entered into force in October
1989, only 18 months later. This was the first time that the procedure had been used to
reduce the period before entry into force to less than two years. With regard to
MARPOL 73/78, the Convention allowed for amendments to the certification and
survey requirements to be accepted by tacit acceptance. As a result, MARPOL 73/78
was amended on March 16 1990 to introduce the harmonized system of survey and
certification, with the proviso that the amendments enter into force at the same time as
the entry into force date of the 1988 SOLAS Protocol and the 1988 Load Lines
Protocol. Over the years numerous amendments to various technical Conventions have
been adopted and entered into force under this procedure.
27. During the Legal Committee’s 12th session, the Secretariat prepared a paper and analyzed the entry
into force and amendment processes of various IMO Conventions. The paper referred to two possible
methods for speeding up the amendment procedure. Alternative I was to revise each Convention so that
greater authority for adopting amendments might be delegated to the appropriate IMO organs. Alternative II
was to amend the IMO Convention itself and give IMO the power to amend Conventions.
28. For a detailed discussion on the use of the tacit acceptance procedure, see Shi, Lei, “Successful Use of
the Tacit Acceptance Procedure to Effectuate Progress in International Maritime Law”, University of San
Francisco Maritime Law Journal, 1988–1999, pp.300–331.
29. Shortly after the accident, the UK came to the IMO with a request that a series of emergency measures
be considered for adoption. Most of these consisted of proposed amendments to SOLAS 1974.
50
THE ROLE OF THE IMO
2.30
2F THE ROLE OF THE IMO
As explained above, the IMO is a specialized agency of the United Nations that is
responsible for measures to improve the safety of international shipping and to prevent
marine pollution from ships. One of the most important tasks allocated to the IMO when
it met for the first time was to develop international standards which would replace the
multiplicity of national legislation which then existed. Over the years, most international
Conventions, protocols, codes and Resolutions concerning safety of ships, prevention of
pollution from ships and other areas related to the operation and facilitation of maritime
traffic have been adopted under the auspices of the IMO. As a legislative body, the IMO
uses different instruments. Maritime Conventions are formal instruments of a
multilateral character. Protocols are significant additions and improvements to an
existing Convention, covering new regimes. Codes, if recommended, are not binding on
governments but provide them with guidance when implementing Convention provisions in their domestic regulations. In some cases, important codes may become
mandatory by introducing appropriate references to the codes in a Convention. These
are adopted as integral parts of the relevant Convention. Resolutions are in general
intended to supplement the corresponding Convention or assist governments in their
implementation or interpretation.30 Application of Resolutions, including recommendations, is an effective and speedy way of transferring important information from the
IMO to governments for their consideration.
In practice, the above distinction is not fundamental. Resolutions may carry more
weight than certain Conventions, and some of the codes are incorporated into national
law. An example of this practice is the International Maritime Dangerous Goods
(IMDG) Code. From a legal point of view, the implementation of this code is
recommended by the IMO Assembly purely to ensure compliance with Chapter VII
(Carriage of Dangerous Goods) of the SOLAS Annex. But the IMDG rules have been
incorporated into the national legislation of so many countries that it has become
enforceable worldwide. Since its adoption by the fourth IMO Assembly in 1965, the
Code has undergone many changes both in appearance and content to keep up with the
changing needs of the industry. In 2002, amendments were adopted to SOLAS Chapter
VII to make the IMDG Code mandatory. Following the entry into force on January 1
2004 of the 2002 amendments to SOLAS 1974, the IMDG Code31 became mandatory.
2.28
2.29
2F.1 Adoption of Conventions32
The IMO has six main bodies concerned with the adoption or implementation of
Conventions. The Assembly and the Council are the main organs and the committees
involved are the Maritime Safety Committee, the Marine Environment Protection
Committee, the Legal Committee and the Facilitation Committee. In general,
developments in shipping and other related areas are discussed by the member States in
these bodies. Proposals for a new Convention, or amendments to existing Conventions,
30. During its 21st session, the IMO Assembly adopted 28 resolutions.
31. The Code lays down basic principles and contains detailed recommendations for individual substances,
materials and articles, as well as a number of recommendations for good operational practice including advice
on terminology, packing, labelling, stowage, segregation and handling, and emergency response action.
32. See IMO, “International Conventions”, (http:/www.imo.org; choose “Conventions”); Boisson, P.,
Safety at Sea Policies, Regulations, & International Law (1999), pp.138–147.
51
2.30
2.30
2.31
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
can be made by a State, a group of States, or by an international organization. As the
committees meet more frequently than the main organs, proposals are generally drawn
up by them. The proposal is examined by the working group or subcommittee and if it is
well founded it goes to the Council and, as necessary, to the Assembly. If the Assembly
or the Council, as the case may be, gives the authorization to proceed with the work, the
subcommittee or the working group asks the States and international organizations that
have consultative status at the IMO for any relevant advice or opinion to draw up a draft
instrument.
The final draft is sent to the Council or Assembly with a recommendation that a
Convention can be convened to consider the formal adoption of the proposed
provisions. The time needed to draft a Convention can vary depending on the subject of
the Convention and on the time needed to obtain a consensus.33 In the case of the 1978
STCW Convention, five years were needed to draft the Convention. However, when the
Organization is called upon to respond to emergencies, the time needed for the
completion of the draft Convention gets much shorter. The 1978 SOLAS and
MARPOL Protocols were prepared in eight months following the Argo Merchant
incident.
When the IMO convenes a diplomatic conference to consider a draft Convention for
formal adoption, invitations to attend such a conference are sent to all the IMO and UN
member States, and specialized agencies. All governments participate on an equal
footing and are treated equally. Intergovernmental and non-governmental organizations are also invited to send observers to the conference in order to provide expert
advice to the representatives of governments. Before the conference, the draft
Convention text is sent to the invited governments and organizations for their
comments. Proposals for amendment to the draft Convention are considered in order to
produce a draft acceptable to all or the majority of the States attending the conference.
When the Convention has been agreed, it is adopted by the conference and deposited
with the Secretary-General who sends copies to governments.
2F.2 Entry into force
2.32
The adoption of a Convention can be considered as the first step in a long process.
Before the Convention comes into force, it has to be accepted formally by individual
governments. If certain conditions are laid down in the Convention which have to be
met before it enters into force, these conditions have to be fulfilled as well. The crucial
issue is the number of ratifications required by the Convention. In general, these
conditions are different but they get more stringent depending on the complexity of the
document.34 If the Convention affects few States or deals with less complex matters,
then the entry-into-force requirements may not be so stringent.35 In any case, it is
33. The consensus system means that every IMO member State has the opportunity to put forward its point
of view. This is important because measures adopted by the Organization must achieve as much support as
possible.
34. SOLAS 1974 provided that entry into force required acceptance by 25 States whose merchant fleets
comprise not less than 50 per cent of the world’s gross tonnage; for the International Convention on Tonnage
Measurement of Ships 1969, the requirement was acceptance by 25 States whose combined merchant fleets
represent not less than 65 per cent of world tonnage.
35. The Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material 1971,
came into force 90 days after being accepted by five States; the Special Trade Passenger Ships Agreement
1971, came into force six months after three States (including two with ships or nationals involved in special
trades) had accepted it.
52
THE ROLE OF THE IMO
2.34
necessary that the Convention is accepted and applied by a large section of the shipping
community.
In general, a Convention is open for signature by States for a period of 12 months.
States may become parties to the Convention by signature36 in the following cases:
(i)
(ii)
(iii)
2.33
the treaty provides that the signature shall have that effect;
it is otherwise established that the negotiating States were agreed that the
signature should have that effect;
the intention of the State to give that effect to the signature appears from the
full powers of its representatives or was expressed during the negotiations
(Vienna Convention on the Law of Treaties 1969, Art. 12.1).37
It is possible for a State to sign a treaty “subject to ratification, acceptance or
approval”. In such a case, the signature does not signify the consent of a State to be
bound by the treaty. However, it obliges the State to refrain from acts which would
defeat the object and purpose of the treaty until such time as it has made its intention
clear not to become a party to the treaty (Vienna Convention on the Law of Treaties
1969, Art. 18(a)).38
Most multilateral treaties contain a clause providing that a State may express its
consent to be bound by the instrument by signature subject to ratification. In such a
situation, signature alone will not be binding on the State. It must be followed up by the
deposit of an instrument of ratification with the depositary of the treaty. The words
“acceptance” and “approval” basically mean the same as “ratification”, but are less
formal and non-technical. That is why they may be preferred by some States that might
have constitutional difficulties with the term “ratification”. This option has been chosen
by many States, as it provides them with an opportunity to ensure that any necessary
legislation is enacted and other constitutional requirements are fulfilled before entering
into treaty commitments. It is also possible for a treaty to provide for consent to be
expressed by signature subject to acceptance or approval. In such a case the terms have
36. For an explanation of the terms “ratification”, “acceptance”, “approval” and “accession” See IMO,
IMO News (1998) 4, p.11.
37. The Vienna Convention on the Law of Treaties 1969, Art. 12(1) states that:
“Consent to be bound by a treaty expressed by signature
1
The consent of a State to be bound by a treaty is expressed by the signature of its representative
when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that signature should have
that effect; or
(c) the intention of the State to give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiation.”
38. The Vienna Convention on the Law of Treaties 1969, Art. 18 states as follows:
“Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention clear not to become a party to the
treaty . . ..”
53
2.34
2.34
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
similar effect to ratification (Vienna Convention on the Law of Treaties 1969, Art.
14(2)).39
Accession is the method used by a State to become a party to a treaty that it did not
sign while the treaty was open for signature. In technical terms, accession requires the
State in question to deposit an instrument of accession with the depositary.40
2F.3 Implementation
2.35
2.36
As a general rule, the implementation of international Conventions is the responsibility of the States that have ratified them. Governments ratifying the international
instruments are obliged to incorporate the provisions into their national legislation. The
implementation of the requirements of a Convention is obligatory for countries which
are parties to it. This is a fundamental principle of international public law.
Under Art. 26 of the Vienna Convention on the Law of Treaties parties to treaties have
to execute them in good faith. This will also entail the implementation of the treaty.
Obviously, without implementation it is not possible to perform the obligations set out
in the relevant treaties. Therefore, it would seem that the obligation to implement
treaties follows from the general obligation laid down in Art. 26.41 Article 27 also
establishes the priority of international treaties over provisions of internal law.42
The requirements laid down in the Conventions are not always specific; they may
leave it to the administration to specify the required details. However, in some cases the
analysis of Conventions may lead to guiding principles for the implementation of
treaties. For instance, Art. I of the 1974 SOLAS Convention provides:
“(a) The Contracting Governments undertake to give effect to the provisions of the present
Convention and the Annex thereto, which shall constitute an integral part of the present
Convention. Every reference to the present Convention constitutes at the same time a reference to
the Annex.
(b) The Contracting Governments undertake to promulgate all laws, decrees, orders and
regulations and to take all other steps which may be necessary to give the present Convention full
and complete effect, so as to ensure that, from the point of view of safety of life, a ship is fit for the
service for which it is intended.”
Furthermore, Art. III of the Convention reads:
“The Contracting Governments undertake to communicate to and deposit with SecretaryGeneral of the Inter-Governmental Maritime Consultative Organization (hereinafter referred to
39. The Vienna Convention on the Law of Treaties 1969, Art. 14(2) states as follows:
“Consent to be bound by a treaty expressed by ratification, acceptance or approval
2
The consent of a State to be bound by a treaty is expressed by acceptance or approval under
conditions similar to those which apply to ratification.”
40. Article 15 of the Vienna Convention on the Law of Treaties provides that consent by accession is
possible where the treaty so provides, or where it is otherwise established that the negotiating States were
agreed or subsequently agreed that consent by accession could occur.
41. Vienna Convention on the Law of Treaties 1969, Art. 26 states as follows:
“Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
42. Vienna Convention on the Law of Treaties 1969, Art. 27 states as follows.
“Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46.”
54
THE ROLE OF THE IMO
2.39
as “Organization”) . . . the text of laws, decrees, orders and regulations which shall have been
promulgated on the various matters within the scope of the present Convention.”
The implementation of Convention provisions into domestic legislation may be
carried out by different legislative methods. Self-explanatory Convention texts make
implementation procedure easier as they can be included as a whole as an integral part of
domestic legislation. For more complex Conventions, there may be a need to rewrite the
appropriate part of requirements of the Convention into the domestic Regulations.
The obligation on Contracting States is not only to incorporate Convention
provisions into their legislative system. To meet their responsibilities, flag States must
have the means and the will to implement the requirements of international Conventions. They must have an adequate legislative and regulatory apparatus and also a
maritime authority with enough staff to be able to control the enforcement of standards
on board the ships.
The explanation given above outlines what has to be done by the contracting States to
implement a Convention, but in practice States do not always comply properly with
these obligations. The enforcement of international Conventions raises many problems.
They may take a long time to be incorporated into the national legal system of each State.
The way Regulations are implemented varies from country to country. The coming into
force of a Convention does not necessarily mean its effective enforcement. Delays may
occur in transcribing international safety standards into national law.
Adopting Conventions, codes and recommendations is important, but they do not
mean much if they are not enforced. For instance, the measures introduced by the IMO
have provided a framework for reducing marine pollution from ships. It could certainly
be argued that if all these measures were rigorously applied, the problem would already
have been virtually eliminated. Similar statements can be made in the case of the safety
of bulk carriers as well. In 1991–92, the sudden increase in bulk carrier losses caused
considerable alarm in the shipping industry and Resolution A.713(17) (“Safety of Ships
Carrying Dry Bulk Cargoes”) was duly adopted. The Resolution called on the MSC to
develop as soon as possible requirements for the design, construction and operational
maintenance and survey of ships carrying solid bulk cargoes and to specify appropriate
precautionary measures. The International Association of Classification Societies
(IACS) was requested to develop survey and maintenance requirements for ships
carrying solid bulk cargoes as soon as possible and submit them to the MSC. At the same
time, governments, classification societies, shipowners and shipmasters were urged to
take immediate action to implement interim measures contained in an Annex. The
impact of the Resolution and action initiated by major classification societies was
immediately beneficial. The number of bulk carrier losses dropped to just two within the
next year. The most significant thing about this improvement is that the Resolution did
not introduce any new measures but simply stressed the importance of implementing
existing standards. As stated in Focus on IMO, this fact brings us to the conclusion that at
least some of the casualties that occurred in 1990 and 1991 were due not to defects in the
Regulations covering bulk carrier safety but to the ineffective way in which they were
implemented.43
The IMO has produced a mass of legislation over the years but this has not been
adopted and implemented as rapidly and effectively as it should have been. When a
government accepts an IMO Convention, it agrees to make it part of its own national law
43. See IMO, “IMO and the safety of bulk carriers”, Focus on IMO, January 1998, pp.9–10.
55
2.37
2.38
2.39
2.39
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
and to enforce it just like any other law. In some countries, the enforcement of an IMO
Convention is not on the government’s list of priorities. In many cases, lack of financial
resources and expertise is the main problem. The IMO is helping to overcome these
difficulties in many ways. It has developed a technical co-operation programme which
now operates round the world. It provides expert assistance to governments which lack
experience and resources. A major development in technical co-operation is the World
Maritime University, which was opened in Malmö, Sweden in 1983. The main aim of
the university is to provide high-level training for key administrators and others,
primarily from developing countries.
Despite all these efforts, the problem of substandard shipping continues to exist.
While ratifying the IMO’s various safety and pollution Conventions, some flag States are
failing to ensure that vessels flying their flags fully comply with the requirements of such
Conventions. Under MARPOL 73/78, States party to the Convention are required to
comply with the requirement to submit mandatory reports on violations of the
Convention to the IMO. Only 25 parties submitted reports for 1999. From the reports
submitted, it was clear that there are still ships which do not have the International Oil
Pollution Compensation (IOPC) Fund certificate, oil record book or the required
pollution prevention equipment on board. The IMO’s Subcommittee on Flag State
Implementation (FSI) was established in 1992 to assist governments in implementing
Conventions and other instruments they have ratified.
2G THE WORK OF THE SUBCOMMITTEE ON FLAG STATE
IMPLEMENTATION
2.40
Following the highly publicized shipping accidents which occurred in the 1980s,44 the
Maritime Safety Committee, during its 60th session in April 1992, pointed out the
urgent need to improve maritime safety through stricter and more uniform application
of existing Regulations. Subsequently, a joint MSC/MEPC working group on flag State
compliance was established at MSC 60. The purpose of this working group was to
discuss the possible creation of a subcommittee on flag State compliance and to prepare
its terms of reference. A new subcommittee has been created in response to the
unanimous recommendation of the Joint MSC/MEPC working group, with the
agreement of the Marine Environment Protection Committee at its 33rd session
(MEPC 33, October 22–30 1992) and of the Maritime Safety Committee, at its 61st
session (MSC 61, December 7–11, 1992).
As pointed out by Hoppe45 the subcommittee’s work can be grouped under five
general headings: implementation of IMO instruments, port State control,46 survey and
certification, casualty statistics and investigation and technical assistance. The subcommittee’s terms of reference provided that the “work of this subcommittee has a primary
44. Herald of Free Enterprise, Dona Paz, Exxon Valdez, and the Scandinavian Star in 1990.
45. For detailed information on the Subcommittee on Flag State Implementation See Hoppe, H., “The
work of the Subcommittee on Flag State Implementation”, IMO News, (1999) 4, pp.21–27.
46. Under port State control, the FSI subcommittee considers operational matters referred to it by
committees. It also considers continuous items like regional cooperation on port State control.
Some of the important instruments developed by Subcommittee in the field of port State control are:
(i) guidelines for the control of operational requirements;
(ii) training and qualification requirements for PSC officers;
(iii) code of conduct for PSC officers; and
(iv) procedures for port State control.
56
THE WORK OF THE SUBCOMMITTEE ON FLAG STATE IMPLEMENTATION
2.42
objective, the identification of measures necessary to ensure effective and consistent
global implementation of IMO instruments, and also paying attention to the special
difficulties faced by the developing countries”. The goal of the subcommittee was stated
to be “a consistent and effective implementation of IMO instruments globally and
compliance with their requirements”.
Implementation of IMO instruments represents the core of the subcommittee’s work
and a key achievement of the FSI subcommittee has been its development of guidelines
to assist flag States in the implementation of IMO instruments.
The most important instruments developed by the subcommittee in this area are:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
2.41
guidelines for the authorization of organizations acting on behalf of the
administration;
model agreement for the authorization of organizations acting on behalf of the
administration;
guidelines to assist flag States in the implementation of IMO instruments;
specifications for the survey and certification functions of recognized organizations acting on behalf of the administration;
guidelines on the implementation of the ISM Code by administrations;
amalgamation of relevant guidelines, minimum standards, specifications,
model agreements etc. relating to the authorization of recognized
organizations;
self-assessment of flag State performance;
criteria for the self-assessment of flag State performance.
Self-assessment of flag State performance was developed as a part of the subcommittee’s work on the implementation of IMO instruments. After three sessions of the
subcommittee, it became clear that the subcommittee has not been particularly effective
in relation to the central issue of ensuring that flag States fully meet their responsibilities
under the Conventions and a mechanism was required to ensure that flag States met
their responsibilities. At FSI 4, the subcommittee agreed to continue to examine the
details of these and other proposals at its next session; in particular the proposals calling
for the development of a new binding instrument on flag State responsibility.
During its fifth session, the FSI considered various submissions about the responsibilities of governments as flag States, the non-observance of international rules and
standards and criteria for assessing flag State performance. A working group worked on
the requirements for effective flag State implementation and criteria for assessing
performance in meeting such requirements and also reviewed the content of a proposed
draft self-assessment form. After receiving the report of the working group, the
subcommittee agreed to a set of internal and external criteria for assessing the flag State
performance as a starting-point for further consideration. It also reviewed a draft flag
State performance self-assessment form and established a correspondence group to
work on this matter intersessionally.
“Internal criteria” are directly relevant to the operation of the flag State as an
administration and directly reflect the way in which a flag State fulfils its requirements.
Based on international instruments, a flag State has responsibilities relating, in
particular, to setting legal requirements to give national effect to the instruments to
which it is a party; enforcement of those requirements; authorization of organizations
acting on its behalf; and casualty investigation.
57
2.42
2.42
2.43
2.44
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
“External criteria” refer to information, in particular port State control data and
accident data, which are also indicators of the way a flag State is performing.
Throughout the discussions at the sixth session of the FSI, the Secretary-General
stated that a self-assessment scheme would provide a constructive, positive process and
would be a step in the right direction. Because it would be undertaken on a uniform basis
through the use of a prepared questionnaire, it would openly display the factors
analyzed.47 Finally, the Sub-Committee agreed on a flag State performance selfassessment form (SAF) which was approved by the MEPC 42 and MSC 70 in 1998 and
issued as a circular MSC/Circ.889–MEPC/Circ.353.
A draft Assembly resolution on self-assessment of flag State performance was
prepared by the seventh session of the FSI and subsequently approved by MSC 71 in
May 1999 and MEPC 43 in June–July 1999 as Resolution A.888(21); Self-Assessment
of Flag State Performance. The form is intended to establish a uniform set of internal
and external criteria which can be used by the flag States on a voluntary basis to obtain a
clear picture of how well their maritime administrations are functioning and to make
their own assessment of their performance as flag States. It also urged the member
governments to use the self-assessment form for the purpose of identifying their
weaknesses, if any, in discharging their responsibilities as flag States. The Resolution on
self-assessment of flag State performance, A.881(21), has been adopted during the 21st
session of the IMO Assembly in November 1999. The Resolution states that flag States
have the primary responsibility to have in place an adequate and effective system to
exercise control over ships entitled to fly their flags and to ensure they comply with
relevant international rules and Regulations. It encourages member States to use the
self-assessment form when seeking technical assistance from or through the IMO on a
voluntary basis, in order to enable the secretariat better to ascertain what type of
assistance might be required. Flag States are also invited to submit their forms
voluntarily in confidence to the IMO for the purpose of establishing a database. Certain
flag States may fear that their deficiencies might be publicly disclosed; therefore, the
resolution emphasizes that the completed form is confidential and may only be made
public by the express wish of the flag State concerned.
The flag State performance self-assessment form is designed to assist flag States in
evaluating their compliance with obligations relating to ship safety and the protection of
the marine environment. It is expected that if completion of the form reveals some
weakness in implementation or enforcement of existing obligations, the flag State would
take measures to improve its performance. The form has an initial section outlining the
main requirements of IMO instruments and a second section contains a highly
structured set of questions corresponding to internal and external criteria for judging
States’ performance.
During the seventh session of FSI, the criteria for the self-assessment of flag State
performance was also examined. The focus was on identifying principles for the
determination of fair and balanced internal and external criteria. Through the
examination, it became clear that these criteria could not exceed the provisions in IMO
instruments. A working group was established to consider documents submitted on the
matter and to draw up a preliminary list of criteria for the self-assessment of flag State
performance. The eighth session of FSI, in January 2000, agreed on a list of criteria and a
series of performance indicators by which flag State performance could be measured
47. FSI 7/2/1, December 30 1998.
58
THE WORK OF THE SUBCOMMITTEE ON FLAG STATE IMPLEMENTATION
2.45
when complying with the recommendations contained in IMO Assembly Resolutions
A.847(20) Guidelines to assist flag States in the implementation of IMO instruments,
and A.881(21) Self-assessment of flag State performance. FSI 8 also agreed on
performance indicators which should be analyzed against each of the criteria.
The committees were also invited to consider whether Resolution A.881(21) should
be updated to include the criteria and performance indicators and whether guidelines to
assist governments in applying the criteria and performance indicators should be
developed.
The subcommittee agreed the following criteria to be used when States choose to
self-assess their performance:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
the existence of a legal framework and a means of promulgating maritime
legislation which shall satisfy the international maritime obligations of the
State;
ability to demonstrate giving full and complete effect to instruments in force to
which the flag State is a Party;
enforcement of maritime legislation;
responsibility for any Recognized Organization (RO) acting on behalf of the
administration, including authorization and monitoring of any corrective
action against the RO;
ability to investigate the causes of personal injuries, non-compliance, casualties, pollution incidents and ability to take appropriate remedial action;
ability to ensure that a ship, having joined its register, does not operate unless it
complies with applicable requirements;
ability to demonstrate that a policy is in place to promote at all times a safetyand environmentally-minded working culture.
The subcommittee additionally agreed a series of performance indicators to be
analyzed against the each of the above criteria:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
accidents, casualties and incidents reportable to the Organization in terms of
the requirements of the applicable Conventions;
accidents involving personal injuries leading to absence from duty of three days
or more on board ships flying the flag of the State concerned;
lives lost on its ships resulting from the operation of ships flying its flag;
ships lost;
pollution incidents according to MARPOL 73/78 and other applicable
instruments’ reporting standards, as appropriate, including a measure of the
seriousness of the incidents;
information provided by other States under port State control procedures in
accordance with the applicable Conventions;
information provided by statutory surveys, audits and inspections carried out
by, on behalf of, and at the request of, the flag State;
compliance with communication of information requirements of mandatory
instruments, including the serious and very serious incidents reportable to the
Organization;
actions taken against ships flying the flag of the State that have been identified
as not being in compliance with the requirements of mandatory instruments,
including the effects of such actions.
59
2.45
2.46
2.46
THE INTERNATIONAL MARITIME ORGANIZATION
(IMO )
The subcommittee agreed a draft MSC/MSPC Circular, to include the criteria and
performance indicators, for submission to the MSC and MEPC for approval. The
committees requested FSI 9 to amend Resolution A.881(21), Self-assessment of flag
State performance, to include the criteria and performance indicators and to prepare a
draft text approval by MSC 74 and MEPC 46, for submission to the 22nd session of the
IMO Assembly.
During the ninth session, held in February 2001, the subcommittee agreed revised
guidance to assist flag States in the self-assessment of their performance. During its 46th
session, April 23–27 2001, the MEPC approved the draft Assembly resolution on
Revised Self-assessment of flag State performance, which was adopted by the 22nd
Assembly in November 2001 as Resolution A.912(22), Self-assessment of flag State
performance, revoking Resolution A.881(21).
Resolution A.912(22) includes updated guidance to assist flag States in the
self-assessment of their performance and gives criteria and performance indicators
which were issued in June 2000 by means of a circular (MSC/Circ.954-MEPC/
Circ.373). The SAF attached to the guidance is intended to be used by flag States on a
voluntary basis to obtain a clear picture of how well their maritime administrations are
functioning and to make their own assessment of performance as flag States. The
Resolution invites member governments to submit copies of their self-assessment
reports so that a database, which would assist the IMO in its efforts to achieve consistent
and effective implementation of IMO instruments, could be established.48
In order to achieve an effective and consistent implementation of IMO instruments by
flag States, FSI 10 concluded that for a database to be effective and for the questions to
be addressed, information would be required according to the following three levels:49
First level: the database should supply information so that the Organization can answer
whether the IMO instruments are implemented effectively and, if so, whether
they are implemented in a consistent manner;
Second level: the database should supply information to enable the Organization to
identify any possible problems encountered by States in the effective implementation of the IMO instrument because of the way the instrument has been written
or structured; and
Third level: the database should supply information to enable the Organization to
identify failures of effective implementation due to the way the instrument is
administered by the States.
During its 11th session, the FSI50 continued its work in developing the database with
data from the self-assessment of flag State performance.
2G.1 Code for implementation of IMO instruments
2.47
In order to achieve the ultimate effectiveness of instruments adopted by the IMO and
to strengthen the role and responsibilities of flag States, FSI 10 considered and endorsed
a proposal to develop amendments to Resolution A.847(20), Guidelines to assist flag
States in the implementation of IMO instruments, and to introduce transparent criteria
48. Since 1999, the Secretariat has been collecting initial SAFs covering a five-year period, together with
the relevant updates of the information contained therein, and has been entering the related information into
the database. As at November 1 2003, 53 initial SAFs and 18 updates had been received.
49. Sub-Committee on Flag State Implementation, 10th Session: April 8–12 2002.
50. FSI, 11th session, 7–11 April 2003.
60
THE WORK OF THE SUBCOMMITTEE ON FLAG STATE IMPLEMENTATION
2.47
for the proper implementation of IMO instruments by flag States. MEPC 48 and MSC
76 considered a proposal for a four-point plan to develop amendments to those
guidelines in the form of a draft Flag State Implementation Code, to be made, at a later
stage, mandatory.
In parallel with this development, during its 88th session the Council approved, in
principle, the concept of an IMO Model Audit Scheme, to be implemented on a
voluntary basis. Within this context, MSC 76 recognized the need for the proposed draft
flag State Implementation Code and the voluntary IMO Model Audit Scheme to be
compatible. Member States are invited to submit proposals to the subcommittee on the
stakeholders which should be covered by the Code.
During FSI 11, the subcommittee51 agreed that the proposed Code for the
implementation of (mandatory) IMO instruments should cover the responsibilities of
member States, in their roles as flag States, port States and coastal States. It should be
comprised of four parts, including a part dealing with common issue concerning all
stakeholders and three subsequent parts relating to flag, coastal and port states. The
subcommittee also recognized that there might be a need at a later stage to make a
difference between mandatory and recommendatory provisions of the Code,52 if so
decided by the MSC and MEPC.
The section on flag States is based on the original resolution A.847(20). Six areas have
been identified for further reflection and review: security; safe manning; communications and reporting; transfer of ships between flag States; definitions; and obligations
for States to restore the environment following a pollution incident.
FSI 11 also reviewed the initial timetable for the development of the draft Code and
agreed to establish a correspondence group with the primary task of developing the parts
relating to coastal and port States as well as to further consider the part on flag States.
FSI 13 will finalize the draft Code to be considered for approval, together with an
associated draft Assembly resolution by MSC 80 and MEPC 53, and that the 24th
session of the Assembly will be invited to consider the draft Code, with a view to
adoption in November 2005.
51. Ibid.
52. During the discussions in FSI 11, the working title of the Code has been accepted as “Code for the
implementation of [mandatory] IMO instruments”, with the word “mandatory” in square brackets for further
consideration, as the subcommittee did not agree on whether or not to include the word in the title.
61
CHAPTER 3
Port State Jurisdiction
3A JURISDICTION IN GENERAL TERMS
Jurisdiction is one of the most important concepts of international maritime law. It is
basically an attribute of State sovereignty. The term “jurisdiction” describes the power
of a State under international law to exercise its authority over persons and property by
the use of its municipal law. This authority can be exercised by means of legislative,
executive or judicial action. Although jurisdiction is primarily exercised on a territorial
basis, there are exceptions to this principle. In some cases, a State may exercise
jurisdiction outside its territory or there may be people within its territory who will be
immune from jurisdiction.
Under international law there are five generally accepted bases of jurisdiction:1
(i)
(ii)
(iii)
The territorial principle: This is the widely recognized principle under which
every State has jurisdiction over crimes committed in its territory. However, in
some cases a crime may be commenced in one State and completed in another.
In such cases, the subjective territorial principle allows the exercise of
jurisdiction in the State where a crime is commenced. The objective territorial
principle gives jurisdiction to the State in which the crime has been completed
and has effect.2
The nationality principle: Under this principle, jurisdiction is related to the
nationality of the offender. The State can prosecute and punish its nationals on
the sole basis of their nationality.
The protective principle: This principle provides that a State may exercise
1. The first four principles were accepted by the Harvard Research Draft Convention of 1935. Although
some evidence of passive personality was apparent, this principle was not adopted by the Convention. This
Convention was an unofficial work produced by a number of American lawyers.
2. The objective territorial principle received general support in the Lotus case. The French steamer Lotus
collided on the high seas with the Bozkurt, a Turkish collier. The Bozkurt sank with eight sailors and passengers
dying as a result. When the Lotus reached the Turkish port, the French officer of the watch at the time of the
collision was arrested and charged with manslaughter. France protested strongly against this action, alleging
that Turkey did not have the jurisdiction to try the offence. The Permanent Court of International Justice was
asked to decide whether Turkey had acted in conflict with international law by instituting proceedings and
thereby exercising criminal jurisdiction. The court rejected the French claim that the flag State had exclusive
jurisdiction over the ship on the high seas and stated that the damage to the Turkish vessel was the equivalent of
affecting Turkish territory. By so deciding, the majority of the court brought the case under the principle of
objective territorial jurisdiction ((1927) PCIJ Ser. A, No. 10). The Lotus principle as regards collisions at sea
was much criticized and was overturned by the 1952 Brussels Convention for the Unification of Certain Rules
Relating to Penal Jurisdiction. The Brussels rule was adopted both under the 1958 Geneva Convention on
High Seas and the UNCLOS (Art. 11; Art. 97). Both Articles emphasize that only the flag State or the State of
which the alleged offender was a national has jurisdiction over sailors regarding incidents occurring on the high
seas.
63
3.1
3.2
3.2
PORT STATE JURISDICTION
(iv)
(v)
3.3
3.4
jurisdiction in respect of offences committed outside its territory which are
deemed prejudicial to the security, integrity or vital economic interests of the
particular State concerned. Although it is a well-established concept, there are
uncertainties as to how far it extends in practice and it is possible that some
States may abuse the principle by giving a very broad interpretation to the
concept of protection.
The passive personality principle: According to this principle, a State can claim
jurisdiction on the basis of the nationality of the actual or potential victim.
The universality principle: This principle allows States to have jurisdiction to
try particular offences. Universal jurisdiction over piracy and war crimes has
been accepted under international law for many centuries. Jurisdiction under
this principle depends on the nature of the crime rather than its place of
occurrence or the nationality of the person responsible for it or the victim.
The concept of jurisdiction is different under public and private international law.
Private international law consists of the rules developed by States as part of their
domestic law. It operates to resolve problems in cases between private persons which
also involve a foreign element. Under private international law, jurisdiction refers to
procedural private-law principles such as the question of which court in which country
may deliver judgment in a given case and which law is applicable.3 Public international
law governs the relations of States and other subjects of international law among them.
In public international law, jurisdiction refers to assignment and delimitation of national
sovereign powers. In public international law, each State has full jurisdiction to legislate
and enforce legislation on its territory. In exercising its jurisdiction, each State has to
respect the sovereignty of other States and observe the rules of international law. In
general, the scope of legislative and enforcement jurisdiction in public international law
is restricted to the territory of the State according to the territoriality principle, under
which each State may exercise jurisdiction over property and persons, or acts or events
occurring within its territory.4
Maritime law has private and public law aspects. Private maritime law deals with the
legal relations between various entities, public or private, engaged in commercial or
other activities in the maritime area. Public maritime law deals with the rights and
obligations of States in relation to each other and other subjects of international law. The
powers and competences of States to regulate activities within their maritime
jurisdictions are within the concept of public maritime law, as well. Under public
international maritime law, unlike other fields of public international law, scope of
jurisdiction is not limited to a State’s territory.
Traditionally, a vessel on the high seas has been subject to the exclusive jurisdiction of
its flag State. This principle is not based on the doctrine that a ship having the national
flag of a State for the purposes of jurisdiction should be treated as if it were territory of
that State. It is, rather, based on the assumption that a ship is a floating island5 of the flag
3. In general, in maritime transactions the parties involved are of different nationalities and the place where
the contract is made and is to be performed are found in States where different laws are in existence. Therefore,
the problem of the choice of governing law arises.
4. Shearer, I.A., Starke’s International Law (1994), p.183.
5. This expression was criticized in R v. Gordon-Finlayson, ex p. An Officer [1941] 1 K.B. 171. In this case, it
was pointed out that a ship is not part of the territory of the flag State, but jurisdiction is exercisable over the
ship by that State in the same way as over its own territory. Cited in Shearer, I.A., p.246, n.17. For discussions
on theories about flag State jurisdiction, see Bodansky, D., “Protecting the Marine Environment from
Vessel-Source Pollution: UNCLOS III and Beyond” (1991) 18 Ecology Law Quarterly, pp.736.
64
FLAG STATE JURISDICTION
3.6
State’s territory. Under this theory, the ship is to be treated by other States as part of the
territory of the State to which she belongs. Therefore, the jurisdiction of the flag State
follows the ship wherever it goes and is not limited to the territory of the flag State.
However, it has to be remembered that the exclusivity of the flag State’s jurisdiction is
not absolute: it admits of several exceptions. Maritime law also recognizes the concepts
of coastal State and port State jurisdiction. A State’s power to control the activities of
foreign ships in its territorial waters and adjacent zones is called coastal State
jurisdiction. In general terms, under coastal State jurisdiction a State exercises
jurisdiction in its territorial sea and exclusive economic zone. Port State control refers to
a State’s jurisdiction over ships in its ports. In general, it is defined as jurisdiction based
solely on the presence of a vessel in port.
It must also be remembered that maritime law recognizes jurisdiction according to the
universal principle. As explained above, under this principle, offences which are subject
to universal jurisdiction come under the jurisdiction of all States, wherever they are
committed. Such offences are contrary to the interests of the international community
and treated as a delict jure gentium, and all States are entitled to apprehend and punish the
offenders. The purpose of this jurisdiction is to make sure that such offences do not go
unpunished. In the case of piracy,6 all States are entitled to arrest pirates on the high seas,
and to punish them, irrespective of nationality or the place of commission of the crime.
With regard to slaves, Art. 99 of the UNCLOS sets out obligations for every State
regarding the prohibition of the transport of slaves.7 It requires every State to prevent
and punish the transport of slaves in ships authorized to fly its flag, and to prevent the
unlawful use of its flag for that purpose. The Article also declares that slaves taking
refuge on board any ship are considered to be free. War crimes and genocide are now
widely accepted as being susceptible to universal jurisdiction, though of course the issues
involved are extremely sensitive and highly political.
3.5
3B FLAG STATE JURISDICTION
It is an accepted principle of international law that the State whose flag the vessel flies
has jurisdiction over that vessel. The traditional principle of freedom of navigation
implies that flag States should have primary jurisdiction over vessels. This is called flag
6. UNCLOS 1982, Art. 100 states as follows:
“Duty to co-operate in the repression of piracy
All States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in
any other place outside the jurisdiction of any State.”
7. UNCLOS 99, Art. 99 states as follows:
“Prohibition of the transport of slaves
Every State shall take effective measures to prevent and punish the transport of slaves in ships
authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge
on board any ship, whatever its flag, shall ipso facto be free.”
The Slavery Convention, Amending Protocol, and Supplementary Convention do not authorize
non-consensual high seas boarding by foreign-flag vessels. However, Art. 22(1) of the Geneva Convention on
the High Seas 1958 authorizes non-consensual boarding by a warship where there exists reasonable ground for
suspecting that a vessel is engaged in the slave trade. Article 110(1)(b) of the UNCLOS reaffirms this
approach.
65
3.6
3.6
3.7
3.8
PORT STATE JURISDICTION
State jurisdiction. Flag State jurisdiction is necessary; given the principle of freedom of
the high seas, a vessel must be subject to the authority of some State to preserve order.
Although some expansion of coastal and port State jurisdiction has been made under
the UNCLOS, the primacy of flag State jurisdiction has been preserved. Flag State
jurisdiction has been stated under Art. 5 of the 1958 Geneva Convention on the High
Seas and repeated in UNCLOS Art. 92. Article 92(1) sets out the rules that the flag State
has exclusive jurisdiction on the high seas over ships flying its flag, except in “exceptional
cases expressly provided for in international treaties or in this Convention”. As stated by
Brown,8 the UNCLOS leaves it to the flag State to ensure that ships flying its flag comply
with international law through the exercise of what may be described as its “ordinary”
jurisdiction, but empowers other States to exercise an “extraordinary” jurisdiction in
relation to a growing range of abuses of freedom of the high seas, the effective
suppression of which requires a co-operative response from the international
community.
International treaties, whether bilateral between the flag State and another State, or
multilateral to which the flag State is a party, may provide for concurrent jurisdiction in
given circumstances. Treaties that provide exceptions to the general rule of exclusive flag
State jurisdiction on the high seas include the 1969 International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties and the 1988 United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances. The Intervention Convention is designed to enable governments to take
action when a threat occurs near their coastline but outside their territorial waters. Until
the adoption of this Convention, there were considerable legal difficulties for countries
involved in taking such action, as they have always been prevented from acting against
ships of other countries operating on the high seas. The 1988 United Nations
Convention allows a State, with the consent of the flag State, to take enforcement action
against a ship suspected of engaging in such illicit traffic.
Article 94(1) of the UNCLOS sets out a general obligation of the flag State to exercise
its jurisdiction and control effectively over all ships flying its flag. This applies in respect
of all administrative, technical and social matters.9 Article 94, para. 2(a) makes the
principal statement regarding the duty of the flag State, which is to maintain a register of
ships. Under para. 2(b), the flag State assumes jurisdiction under its internal law, in
respect of administrative, technical and social matters, over each ship flying its flag and
also over the master, officers and crew of such ships. Paragraph 3 requires the flag State
to take such measures for ships flying its flag as are necessary to ensure safety at sea with
regard to the matters listed in subparagraphs (a), (b) and (c). The words “inter alia”
indicate that this list is not exhaustive. In taking these measures, each State is required to
conform to generally accepted international regulations, procedures and practices and to take
any steps which may be necessary to secure their observance. This requirement
establishes the link between municipal and international law.
The application of para. 3 is subject to the requirements set out in the paragraph. The
application of para. 3 is also subject to Art. 21, para. (2) (concerning innocent passage
8. Brown, E.D., , Vol. I, p.295.
9. The requirement was originally adopted in the Second Committee at UNCLOS I for the purpose of
strengthening the concept of “genuine link” with regard to the nationality of a ship, by indicating matters over
which the coastal State should exercise its jurisdiction. Paragraphs 2 to 5 of UNCLOS 94 are an elaboration of
that obligation. See A/CONF.13/C.2/L28 (1958), Art. 29, para. 1, UNCLOS I, IV Off. Rec. 123 (Italy); and
A/CONF.13/L.93 (1958), Ibid. 141 (France) Cited in Nordquist, M.H., (ed.-in-chief) United Nations
Convention On the Law Of The Sea 1982, A Commentary, Vol. III (1995), p.144, n.5.
66
FLAG STATE JURISDICTION
3.10
through the territorial sea) which establishes the fundamental rule that a coastal State
may not enact laws and regulations relating to the innocent passage of foreign ships
through its territorial sea which apply to the design, construction, manning or
equipment of foreign ships unless these laws and regulations “are giving effect to
generally accepted international rules or standards”. This primary rule of the Convention is incorporated in Part XII, on the protection and preservation of marine
environment, in Art. 194, para. 3(c), Art. 211, para. 6(c), and Art. 217, para. 2.
Article 94(4) specifies the further measures to be taken by the flag State to ensure
safety at sea. These measures relate to the qualifications of the master, officers and crew
of the ship. They are required to be fully observant with and observe applicable
international regulations concerning the safety of life at sea, the prevention of collisions,
the prevention, reduction and control of marine pollution, and the maintenance of
communications by radio. Each ship must also be surveyed by the flag State to ensure
that it has on board the appropriate charts and other nautical publications and nautical
equipment.
Paragraph 5 refers to the nature of the international instruments to which the flag
State is required to conform in applying paras. 3 and 4. This paragraph empowers the
flag State to take “any steps which may be necessary to secure observance” of the
“generally accepted international regulations, procedures and practices”, including
those relating to the safety of life at sea, the prevention of collisions, the prevention,
reduction and control of marine pollution, and the maintenance of radio communications. This rule is applicable to all ships on the national register.
Article 94 provides for flag State investigation where proper jurisdiction and control
have not been exercised, and for inquiry into every marine casualty or incident of
navigation on the high seas. Under para. 6, it is provided that, if a State other than the
flag State has grounds to believe that proper jurisdiction and control with respect to a
ship have not been exercised, that State may report the facts to the flag State. When the
flag State receives such a report it shall investigate the matter and, if appropriate, take
any action necessary to remedy the situation. This paragraph supports the general
principle stated in para. 1 that the flag State is to exercise effective jurisdiction and
control over ships flying its flag.10
Paragraph 7 requires the flag State to hold an inquiry into every marine casualty or
incident of navigation causing loss of life or serious injury to nationals of another State or
serious damage to ships or installations of another State or the marine environment. The
flag State and the other State concerned are to co-operate in the conduct of any such
inquiry.11
In maritime zones other than the high seas, depending on the circumstances,
jurisdiction may be concurrent between the flag State and the coastal State. Articles 27
and 28 of UNCLOS refer to, respectively, criminal jurisdiction and civil jurisdiction on
board or in relation to a foreign ship exercising its right of innocent passage. Under these
Articles concurrent jurisdiction may be exercised by the coastal State in the territorial
sea. In case of straits used for international navigation, apart from cases when the ship is
10. The application of para. 6 calls for good faith both on the part of the other States and on the part of the
flag State. Disputes regarding the interpretation or application of this provision would come within the scope
of Part XV (Arts. 279–299). Nordquist, M.H., ibid.
11. See Resolution A. 637(16) of the IMO Assembly, adopted on October 19 1989, on “Cooperation in
Maritime Casualty Investigations”. IMO Assembly, Sixteenth Session (1989), Resolutions and Other Decisions,
at 6 (IMO Sales No. 136 90.04.E (1990)). Reproduced in 5 NILOS YB [1989], at 257. Cited in Ibid., p.151,
n.27.
67
3.9
3.10
3.10
PORT STATE JURISDICTION
in a route through the high seas within the strait,12 States bordering the strait have
concurrent jurisdiction with the flag State in respect of matters listed in Art. 42.13
Similarly to Art. 42, concurrent jurisdiction over the same matters applies in
archipelagic waters under Art. 54.14 According to Art. 58(2), Arts. 88–115 and other
pertinent rules of international law apply to exclusive economic zones in so far as they are
not incompatible with Part V of the UNCLOS. Therefore, the flag State and the coastal
State have concurrent jurisdiction over ships (including fishing vessels) in the exclusive
economic zone under Art. 73. There is concurrent jurisdiction for vessels conducting
marine scientific research in the exclusive economic zone under Art. 56, para. 1(b)(ii)
and Art. 246.
Exceptions to exclusive flag State jurisdiction—in other words concurrent jurisdiction, or the possibility of a State other than the flag State exercising jurisdiction over a
ship on the high seas—are stated under the following articles: Arts. 105 and 107 on the
seizure of a pirate ship or aircraft; Art. 109 on authorized broadcasting from the high
seas; Art. 110 on the right of visit and Art. 111 on hot pursuit.
In addition to the exceptions explained above, Arts. 218, 219 and 220 deal with the
enforcement of applicable international rules and standards for the protection of marine
environment by port States and coastal States “when a vessel is voluntarily within a port
or at an offshore terminal” of that State.
In summary, it can be said that, under customary international law, aside from the
limited number of exceptions discussed above, a vessel on the high seas is under the
exclusive jurisdiction of the flag State.15
12. UNCLOS 1982, Art. 36, High seas routes or routes through exclusive economic zones through straits
used for international navigation.
13. UNCLOS 1982, Art. 42(1) states as follows:
“Laws and regulations of States bordering straits relating to transit passage
1.
Subject to the provisions of this section, States bordering straits may adopt laws and regulations
relating to transit passage through straits, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic, as provided in Article 41;
(b) the prevention, reduction and control of pollution, by giving effect to applicable international
regulations regarding the discharge of oil, oily wastes and other noxious substances in the
strait;
(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;
(d) the loading or unloading of any commodity, currency or person in contravention of the
customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.”
14. UNCLOS 1982, Art. 54 states as follows:
“Duties of ships and aircraft during their passage, research and survey activities, duties of the archipelagic
State and laws and regulations of the archipelagic State relating to archipelagic sea lanes passage
Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes passage.”
15. The exception to the flag State jurisdiction on the high seas may be found under US law. Under US law,
the US government may legally exercise law enforcement jurisdiction over a vessel on the high seas under the
following conditions: if the vessel is registered in the US; if the vessel is stateless or if the flag of the State vessel
consents to law enforcement actions by the United Nations. In the case of the F/V Jin Yinn, based on
intelligence information the Coast Guard suspected that the Jin Yinn was involved in alien smuggling. The
vessel was first spotted by the Coast Guard approximately 400 miles off the coast of California. It avoided all
attempts by the Coast Guard cutter on scene to communicate. Based on the name and home port of the vessel,
the Coast Guard believed the vessel to be registered in Taiwan and requested that Taiwan confirm registry of
the vessel and allow it to board and search the vessel. Within 12 hours of the request, Taiwan confirmed the
registry and granted the Coast Guard permission to board and search the vessel. Following Taiwan’s consent,
the Jin Yinn allowed the Coast Guard to board. On board there were many Chinese national aliens and the
crew was composed of both Chinese and Taiwanese nationals. Following diplomatic discussions between the
US and Taiwan and between the US and China, Taiwan agreed to the repatriation of the aliens on board.
68
COASTAL STATE JURISDICTION
3.13
3C COASTAL STATE JURISDICTION
Prior to, and also within the UNCLOS itself, coastal State jurisdiction has been
defined in terms of distinct maritime zones: internal waters; the territorial sea; the
contiguous zone; and the exclusive economic zone.
3.11
3C.1 Internal waters
Internal waters consist of ports, harbours, lakes, rivers, canals and waters on the
landward side of the baselines from which the breadth of the territorial sea is measured.
They are classified as an integral part of the coastal State and the coastal State has full
sovereignty over its internal waters. Consequently, the application of the territorial rules
of jurisdiction would imply that a State is entitled to enforce its laws against all ships and
those on board within its internal waters, subject to the rules of sovereign and diplomatic
immunity.
Sovereignty of a coastal State in its internal waters is not limited by an obligation to
grant a right of innocent passage to foreign ships. In the absence of treaty or other
agreement, no right of passage, innocent or otherwise, exists for foreign vessels in
internal waters. Limitations on sovereignty may only arise under international
customary law or under treaties entered into by the coastal State. When the existence of
sovereignty over internal waters and the absence of any general right of innocent passage
through them are considered together, one can reach the conclusion that in customary
international law there is no right for foreign ships to enter a State’s ports and other
internal waters. The only exception to this rule is contained in Art. 5(2) of the Geneva
Convention on the High Seas and Art. 8(2) of the UNCLOS. Under these provisions,
where a “straight baseline” is established in accordance with the method set out in Art. 7
of the UNCLOS and this has the effect of enclosing as internal waters areas which were
not previously considered as such, a right of innocent passage is preserved in those
waters.
It is clear that a coastal State is entitled to prohibit entry into its ports by foreign
warships, but it is arguable whether it has similar right to forbid foreign merchant ships
from entering its ports. According to Brown,16 a right of access to ports exists under
international customary law and it exists for the parties of the Geneva Convention and
Statute on the International Regime of Maritime Ports 1923, as well as under various
bilateral commerce and navigation treaties.17 In the absence of any clear right of access to
Then the US requested the consent of Taiwan to arrest and prosecute the Taiwanese members of the crew
under US law. The same request was made to the Chinese government regarding those members of the crew
who were Chinese nationals. Both Taiwan and China told the US that they desired to prosecute their nationals
themselves. Although this case is an example of an exception to the flag State jurisdiction on the high seas, this
exception is subject to the consent of the flag State. Under international law, once Taiwan confirmed that the
Jin Yinn was legitimately registered, the US only had authority to take law enforcement actions consented to by
Taiwan. The original communication from Taiwan granted consent for US personnel to board and search the
vessel. If the US at that point had exceeded the consent granted, e.g. had arrested the crew and transported
them to the US for prosecution, the US would have been in violation of international law. “The violation
would have been more flagrant if such actions were taken after Taiwan specifically told the United States that
they wished to prosecute their nationals and therefore explicitly did not consent to the application of U.S. law.”
Canty, R., “Limits of Coast Guard Authority to Board Foreign Vessels on the High Seas” Tulane Maritime Law
Journal (1998) 23, pp.134–136.
16. Brown, E.D., Vol. I, pp.37–40.
17. Under Art. XX(1) of the Treaty of Friendship, Commerce and Navigation Between The United States
Of America And The Federal Republic of Germany (Signed October 19 1954; entered into force July 14 1956,
T.I.A.S. No. 3593; 7 U.S.T. 1839; 273 U.N.T.S. 3) it is provided that:
69
3.12
3.13
3.13
3.14
3.15
PORT STATE JURISDICTION
ports in customary law, most States have such rights under a treaty. Obviously,
developments in international trade and commerce also affect customary international
law.
Freedom of access granted to foreign vessels is not an absolute freedom. States have
the right to nominate ports of theirs which are open to international trade. A State may
also close its international ports to protect its vital interests without violating customary
international law. States also have a right to prescribe conditions for access to their ports.
In cases where freedom of access continued to exist, the coastal State would be under an
obligation to publicize changes in the nature of access channels and ensure that they
were kept safe.
When a ship enters a foreign port or other internal waters, it is under the territorial
sovereignty of the coastal State. However, in the case of warships, the coastal State has
limited jurisdiction. A foreign warship observes the coastal State’s laws about navigation
and health but the authorization of the captain or of the flag State comes before the
coastal State’s jurisdiction. Coastal State authorities cannot board a foreign warship or
carry out any act on board such a vessel without the consent of its captain or other
authority of the flag State. For crimes committed on board the vessel and ashore, the
crew of the vessel are immune from prosecution by the coastal State, provided they were
in uniform and on official business at the time of committing the crime.
The coastal State may exercise its jurisdiction over foreign merchant ships within its
internal waters.18 Although the coastal State may apply and enforce its laws in full against
foreign merchant ships in its internal waters, this principle is subject to a number of
exceptions. For instance, the courts of the flag State may also try people for crimes
committed on board a ship. In such cases there will be concurrent jurisdiction. In R. v.
Anderson19 an American national committed manslaughter on board a British vessel in
French internal waters. It was held by the Court of Appeal in the UK that the American
national was subject to the jurisdiction of the British courts although he was within the
sovereignty of French justice. Another exception to local jurisdiction is where merely
disciplinarian issues related to the ship’s crew are involved. The coastal State will not
interfere with the exercise of disciplinary powers by the captain over his crew. If the
crime committed by a member of the crew does not concern the maintenance of peace
within the territory of the coastal State, it will usually allow the matter to be dealt with by
the authorities of the flag State. Ships in distress are accorded a degree of immunity from
coastal State jurisdiction. The coastal State cannot take advantage of their distress by
imposing harbour duties and taxes in excess of any services rendered. Another important
point about the coastal State’s jurisdiction over foreign ships arises in relation to the right
of exit of foreign ships from their ports. Obviously, the right of access to ports and
“Vessels of either Party shall have liberty, on equal terms with vessels of the other Party and on equal terms
with vessels of any third country, to come with their cargoes to all ports, places and waters of such other
Party open to foreign commerce and navigation. Such vessels and cargoes shall in the ports, places and
waters of such other Party be accorded in all respects national treatment and most-favoured-nation
treatment.”
18. This rule was expressed by Wait C.J. in Wildenhus’s Case in the United States Supreme Court in 1887.
“It is part of the law of civilised nations that when a merchant vessel of one country enters the ports of another
for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise
the two countries have come to some different understanding or agreement . . .. As the owner has voluntarily
taken of his vessels for his own private purposes to a place within the dominion of a Government other than his
own, and from which he seeks protection during his stay, he owes that Government such allegiance for the time
being as is due for the protection to which he becomes entitled.” (1887) 120 U.S.1.
19. R. v. Anderson (1868) L.R. 1 C.C.R. 161, 11 Cox C.C. 198.
70
COASTAL STATE JURISDICTION
3.17
internal waters implies a right to leave. But this right of exit is subject to limitations.
Ships in port are liable to arrest as security in civil actions, such as for customs offences or
in actions in rem against the ship. In cases of pollution offences, coastal State jurisdiction
is considerably extended. Under the Intervention Convention 1969, the right of
intervention of coastal States on the high seas in cases of oil pollution casualties is
expressly recognized, and may be exercised anywhere on the high seas. However, the
right of intervention is limited to a maritime casualty resulting in a case of pollution
involving a privately owned ship of one of the contracting parties.
3C.2 Territorial sea
In the territorial sea, the coastal State enjoys sovereignty, but has to respect the rights
of foreign ships. On the one hand, the coastal State is sovereign in its territorial sea; but
on the other, its authority is restricted by the interests of maritime States in free
navigation. The fundamental restriction upon the sovereignty of the coastal State is the
right of other nations to innocent passage through its territorial sea. Right of innocent
passage distinguishes the territorial sea from the internal waters of the State, where the
coastal State has complete jurisdiction. Articles 17 and 18 of the UNCLOS contain the
right of innocent passage of foreign ships through the territorial sea. Under Art. 24, the
coastal State may not hamper innocent passage. Article 21(2) provides for the legislative
jurisdiction of a coastal State in the territorial sea, and indicates the matters on which a
State may adopt laws and regulations. Ships exercising the right of innocent passage
shall comply with all such laws and regulations. Under Art. 21(2), such laws and
regulations shall not apply to the design, construction, manning or equipment of foreign
ships unless they give effect to generally accepted international rules and standards.
Apart from these limitations the coastal State enjoys full sovereignty in its territorial sea.
In the territorial sea, a coastal State may take steps to prevent passage that is not
innocent. The UNCLOS clarifies the meaning of “innocent passage” by listing those
acts that render passage non-innocent. If a foreign ship is engaged in any of the activities
set out in Art. 19(2) its passage shall be considered prejudicial to the peace, good order
and security of the coastal State. Stopping and inspection of a ship may take place for any
violation of the applicable laws in territorial sea, as provided for in relation to pollution
offences.
Since a State has sovereignty over its territory, this also pertains to foreign ships in
ports on its territory or at offshore terminals in its territorial sea. The specific port State
powers include the inspection of a ship’s certificates, physical inspection of the ship, if
warranted by the evidence, and detention of the ship. The exercise of criminal and civil
jurisdiction on board foreign ships, whether merchant or government ships operated
commercially, in passage through the territorial sea, is dealt with in Arts. 27 and 28 of
UNCLOS.
In its territorial sea, the coastal State has discretion to adopt anti-pollution laws and
regulations applicable to foreign vessels. However, this discretion is subject to some
restrictions. It is not possible for the coastal State to adopt standards incompatible with,
or less effective than, international criteria.20 If the coastal State seeks to regulate
20. Reference to international criteria with regard to coastal State rights and duties is made under the
following articles: Art. 21(1) of the UNCLOS (“The coastal State may adopt laws and regulations, in
conformity with the provisions of this Convention and other rules of international law, relating to innocent
passage through the territorial sea, in respect of all or any of the following . . .”); Art. 22(3) of the UNCLOS
(“In the designation of sea lanes and the prescription of traffic separation schemes under this Article, the
71
3.16
3.17
3.17
PORT STATE JURISDICTION
innocent passage in the territorial sea in order to prevent pollution, the legislation should
not affect innocent passage. It is also not possible for the coastal State to prescribe
national standards of construction, design, equipment or manning of vessels that do not
give effect to generally accepted rules or standards.
3C.3 The contiguous zone
3.18
3.19
Article 24 of the Geneva Convention on the High Seas describes the contiguous zone
as “a zone of the high seas contiguous to its territorial sea”. Under Art. 33 of the
UNCLOS, it is referred to as “a zone contiguous to its territorial sea”. Under Art. 55 of
the UNCLOS, the new concept of the “exclusive economic zone” (EEZ) is introduced
and defined as “an area beyond and adjacent to the territorial sea” and it is open to States
to claim one, although it is not obligatory.
The legal status of the contiguous zone became more complicated under the
UNCLOS. The juridical nature of the contiguous zone may change depending on the
EEZ. For instance, if an EEZ were claimed, the contiguous zone and EEZ areas would
overlap. If an EEZ were not claimed, the contiguous zone would be a zone of the high
seas because the “high seas” part of the UN Convention applies, inter alia, to all parts of
the sea that are not included in the EEZ, territorial sea or internal waters.21 Another
factor which affects the juridical nature of the contiguous zone is its association with the
high seas or the EEZ. If the contiguous zone is accepted as a zone of the high seas, which
was the case under the Geneva Conventions, it will be governed under the principle of
the freedom of the high seas and the coastal State will have exceptional rights or powers
in the zone. If the contiguous zone is accepted as part of the EEZ, there is no legal
presumption in favour of the freedom of the high seas or the coastal State’s sovereignty,
as it is accepted as a zone which is sui generis. Under the UNCLOS, the contiguous zone
falls within the EEZ. As a consequence, the presumption against a coastal State’s
jurisdiction is removed. If a coastal State claims jurisdictional rights that are not
expressly granted under the UNCLOS, the dispute will be resolved on the basis of equity
and taking into account the respective importance of the parties concerned.
A coastal State’s rights in the contiguous zone is a functional and protective measure.
Under Art. 33(1) of the UNCLOS, the coastal State may exercise the control necessary
to prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea. The preventative control authorized
under Art. 33(1) is exercisable only in relation to incoming vessels. And the Article does
not recognize the prescriptive or enforcement authority of the coastal State to protect the
environment of the contiguous zone itself.22 In other words, the coastal State exercises
coastal State shall take into account: (a) the recommendations of the competent international organization
. . .”); Art. 24(1) of the UNCLOS (“The coastal State shall not hamper the innocent passage of foreign ships
through the territorial sea except in accordance with this Convention. In particular in the application of this
Convention or of any laws and regulations adopted in conformity with this Convention, the coastal State shall
not . . .”); Art. 211(5) of the UNCLOS (“Coastal States, for the purpose of enforcement as provided for in
section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention,
reduction and control of pollution from vessels conforming to and giving effect to generally accepted
international rules and standards established through the competent international organization or general
diplomatic conference”).
21. Brown, E.D., Vol. I, p.130.
22. According to Bodansky, the reason behind this restriction is that States are now permitted under the
UNCLOS to prescribe and enforce vessel-source pollution standards in a much broader zone of water.
Therefore, the limited scope of the contiguous zone provision is of relatively little importance. Bodansky, D.,
p.756.
72
COASTAL STATE JURISDICTION
3.21
control and not jurisdiction. The rights of the coastal State in the zone do not amount to
sovereignty.
3C.4 Exclusive economic zone
One of the most important features of the UNCLOS is that it defines a new ocean
zone, the EEZ. Until the entry into force of the UNCLOS, the EEZ was a concept of
customary law alone. The UNCLOS recognizes and affirms a coastal State’s inherent
powers over the natural resources within its EEZ. It also creates legally binding
obligations on States to protect the marine environment. The right to claim an EEZ is
discretionary and not mandatory.
Within an EEZ, the coastal State has sovereign rights for specific purposes but does
not have the sovereignty comparable with that which it enjoys in its territory or in the
territorial sea. The coastal State has sovereign rights “for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether living or non-living,
of the waters superjacent to the sea bed and of the sea bed and subsoil . . .” and
jurisdiction, inter alia, with regard to “(i) establishments and use of artificial islands,
installations and structures; (ii) marine scientific research; (iii) the protection and
preservation of the marine environment”.23
Other States enjoy the right of free navigation, overflight and the laying of submarine
cables and pipelines in the EEZ, provided that they respect the rights and duties of the
coastal State and comply with the laws and regulations of it.
Within an EEZ, the coastal State has competence to legislate for the protection and
preservation of the marine environment, provided it does so without prejudice to the
freedom of navigation. Article 211(5) permits the coastal State to enact rules and
regulations “for the purpose of enforcement”. Only coastal State pollution laws
“confirming and giving effect to” generally accepted international rules and standards
can be accepted.24
3.20
3C.5 High seas
The term “high seas” was defined in Art. 1 of the Geneva Convention on the High
Seas 1958 as “all parts of the sea that are not included in the territorial sea or in the
internal waters of a State”. In relation to the developments in the law of the sea, this
definition has been modified as “all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a State, or in the
archipelagic waters of an archipelagic State” in Art. 86 of the UNCLOS.
The general principle of the high seas is that they are res communis. All states, whether
23. UNCLOS 1982, Art. 56.
24. UNCLOS 1982, Art. 211(5) provides as follows:
“Pollution from vessels
Coastal States, for the purpose of enforcement as provided for in Section 6, may in respect of their
exclusive economic zone adopt laws and regulations for the prevention, reduction and control of pollution
from vessels conforming to and giving effect to generally accepted international rules and standards
established through the competent international organisation or general diplomatic conference.”
73
3.21
3.21
PORT STATE JURISDICTION
coastal or not, have the right to exercise high-seas freedoms.25 The freedom of the high
seas, which may be exercised by both coastal and non-coastal States, is the freedom of
navigation, of fishing, to lay submarine cables and pipelines, the freedom of overflight,
the freedom to conduct scientific research and the freedom to construct artificial
islands.26 All these freedoms must be exercised with due regard to the rights of other
States and to the special regime established for the deep-sea bed. The high seas are not
subject to the sovereignty of any State.27 They are open to all States and no State may
validly claim any part of the high seas under its sovereignty.
The dominant principle on the high seas is the presumption of the exclusivity of flag
State jurisdiction. The flag State’s jurisdiction follows the ship wherever it goes and it is
certainly not restricted to its territory. Therefore, it is essential to know which State is the
flag State. As a general rule, only the flag State may exercise jurisdiction over a ship on
the high seas.28 Ships sail under the flag of one State only and, apart from exceptional
cases provided for in international treaties or in the UNCLOS, they are subject to the
exclusive jurisdiction of that State on the high seas.29 Article 94 sets out duties of the flag
State with respect to its ships on the high seas. According to Art. 94(1), “every State shall
effectively exercise its jurisdiction and control in administrative, technical and social
matters” over its ships.
3D PORT STATE JURISDICTION
3.22
Exclusive flag State enforcement has been reaffirmed over the years in maritime
conventions and bilateral agreements. However, the concept of port State jurisdiction
over the enforcement of applicable international rules and standards for the protection
and preservation of the marine environment is quite new.
In general, the port authorities did not enforce local jurisdiction over foreign ships
which were voluntarily and temporarily present in their ports. The first SOLAS
Convention adopted in 1914 applied, not to all ships present in the port of a State party,
but instead to ships registered in a port of a State party. Under the introduced system of
certificates, flag States issued certificates to vessels flying their flag stating that they
conformed with the requirements of that particular Convention. It was stated in the
Convention that flag States assume full responsibility for the certificates. The powers of
25. UNCLOS 1982, Art. 90 says:
“Right of navigation
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.”
26. UNCLOS 1982, Art. 87.
27. UNCLOS 1982, Art. 89 states:
“Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.”
28. There are certain exceptions to the exclusivity of flag State jurisdiction.
29. UNCLOS 1982, Art. 92(1) states:
“Status of ships
1.
Ships sail under the flag of one State only, and, save in exceptional cases expressly provided for in
international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high
seas. A ship may not change its flag during a voyage or while in port of call, save in the case of a real
transfer of ownership or change of registry.”
74
PORT STATE JURISDICTION
3.25
the port States were to check the certificates and to inform the flag State of any
deficiencies.
Under OILPOL 1954, the enforcement regime is based on flag State jurisdiction. Any
discharge in contravention of the Convention, wherever it occurs, is an offence
punishable under the law of the flag State and any alleged violation detected by a
member State, wherever it occurs, may be reported to the flag State for investigation and
legal action as appropriate. The Torrey Canyon incident highlighted the issue concerning
the extent to which a State directly threatened or affected by a casualty that takes place
outside its territorial sea can or should be allowed to take measures to protect its
coastline. Following deliberations in the IMO’s Legal Committee, a diplomatic
conference met in 1969 to adopt two new instruments. The first of these dealt with the
right to intervene (the Intervention Convention). The second instrument was the Civil
Liability Convention (CLC). Under the Intervention Convention, for the first time the
non-flag States were given the right to take preventative and mitigating action against
vessels posing an environmental threat to their coasts where this threat emanated from
outside territorial waters.
Since the adoption of the Intervention Convention and CLC in 1969, the trend to
impose increasing obligations upon flag and port States became a continuing activity of
the IMO. Most of this activity took place during the same period as the meetings of
UNCLOS III. It became clear that the rules and standards contained in four main IMO
treaty instruments adopted in the 1970s could be implemented only by widening the
powers of the port State. These instruments, listed below, advanced the evolution of the
traditional concepts of State jurisdiction:30
(i)
(ii)
(iii)
(iv)
3.23
3.24
the International Convention for the Prevention of Pollution From Ships
1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);
the International Convention for the Safety of Life at Sea 1974, as amended
(SOLAS 74);
the Protocol of 1978 relating to the International Convention for the Safety of
Life at Sea 1974 (1978 SOLAS Protocol);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 1978).
Port State jurisdiction was first introduced for detailed international consideration at the
1973 IMO Conference on Marine Pollution. During the conference, a proposal was
made for port State enforcement. Although this proposal was not accepted, the
MARPOL Convention strengthened the enforcement system. MARPOL Art. 6(2)
provides that port officials of the contracting parties may inspect a foreign vessel in order
to verify whether it has discharged in any sea area harmful substances in violation of the
regulations annexed to the Convention. Under Art. 6(5), a right of inspection applies to
cases where port officials receive, from any other party to the Convention, a request for
an investigation together with “sufficient evidence that the ship has discharged harmful
substances or effluent containing such substances in any place”.
At the same time as the adoption of MARPOL 73/78, the US introduced to the Sea
Bed Committee, which was preparing for the third UN Conference on the Law of the
30. Blanco-Bazán, A., “Implementation of IMO Conventions by Flag and Port States” in Couper, A. and
Gold, E. (eds.), The Marine Environment and Sustainable Development: Law, Policy and Science: Proceedings, the
Law of the Sea Institute Twenty-fifth Annual Conference, August 6–9 1991, Malmö (Honolulu, 1993),
pp.454–455.
75
3.25
3.25
3.26
PORT STATE JURISDICTION
Sea, a number of draft Articles concerning an independent, permissive port State
control enforcement jurisdiction. In Art. VII, para. 2(a), of the draft Articles submitted
to subcommittee there was no clear distinction between port State jurisdiction and
coastal State jurisdiction.31 The provisions on port State enforcement were initially seen
as the major addition to the primary responsibility of the flag State. Other draft
US-proposed articles extended port State rights and duties to denying vessel entry into
its ports, notifying the State of the next port of call of the vessel, and undertaking
investigations of alleged pollution violations by the vessel. The draft provisions on port
State jurisdiction were rejected during the early stages of the Sea Bed Committee’s
negotiations.32 However, during the negotiations of the UN Conference, several
proposals dealing with port State jurisdiction were developed.33 The first official
proposal for port State enforcement was contained in Art. 3 of the draft Articles
submitted by nine European States34 during the third session in March 1975. Under this
proposal, port State inspection could be conducted irrespective of where the suspected
discharge violation occurred, but only if the offence was committed within the preceding
six months. No duty was imposed on the port State: the port State “may undertake an
immediate and thorough investigation”. However, when information was received from
another party to the Convention or the competent international organization, the port
State was under a duty to undertake such an investigation. Under the proposal, the
enforcement powers of the port State were more restricted.
Countries had different views on this proposal. The US was not happy with the
proposal because it placed too many restrictions on the enforcement of international
rules by port States. Canada welcomed the proposal, with some criticism about the
inspection provisions. India agreed with it in principle, but suggested an extension of the
six-month period for the institution of proceedings and more severe penalties for
culprits. Despite characterizing them as “unduly restrictive”, the New Zealand delegate
also welcomed the provisions. The USSR and Nigeria were in favour of the proposal.
Spain and Liberia rejected them.35
At the fourth session, many important discussions were held; particularly, negotiations on enforcement provisions continued in informal meetings. The main points of
31. The Article read in part as follows:
“2. A State may enforce standards applicable in accordance with the provisions of this Chapter to:
(a) vessels using its ports or offshore facilities irrespective of where the violation occurred . . .
(such State is hereinafter referred to as the “port State”).”
In the same article, paragraph 2(b) dealt with coastal State enforcement jurisdiction with regard to violations
occurring in the territorial sea. Nordquist, M.H., Vol. IV, p.261.
32. According to Keselj, the rejected draft provisions on port State control have undoubtedly influenced the
way in which certain States, parties and non-parties to the UNCLOS, interpret the final provisions of Art. 211,
para. 3, and Art. 218 of the UNCLOS, especially as far as the right to deny access is concerned. See Keselj, T.,
“Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law
of the Sea and the Memoranda of Understanding” (1999) 30 Ocean Development and International Law,
pp.128–131.
33. A working paper by Norway contained two articles on general enforcement obligations. A set of draft
Articles on enforcement was introduced by The Netherlands. The Netherlands’ proposal dealt with the issue
of proceedings, indicating that a State “may cause proceedings to be taken when a ship . . . enters its ports or
offshore terminals”, in respect of violations of established national or international rules concerning the
discharge of harmful substances or effluent into the marine environment. A Greek draft on enforcement of
provisions on the protection of the marine environment contained specific provisions on port State
enforcement. See Nordquist, M.H., Vol. IV., p.26.
34. These states were Belgium, Bulgaria, Denmark, the Democratic Republic of Germany, Greece, The
Netherlands, Poland and the United Kingdom.
35. Kasoulides, George C., pp.119–120.
76
FOREIGN VESSELS ’ ACCESS TO PORTS AND CONDITIONS OF ENTRY
3.27
these discussions were set out in an “Outline of Issues” concerning pollution by vessels.
According to this document, a definition of “port of arrival” was drafted. Following the
preparation of “Outline of Issues”, there was not much informal negotiation, but this
text provided the basis for further work. In fact, in the Revised Single Negotiating Text,
the provision on port State enforcement repeated almost verbatim the text from
“Outline of Issues”. During the following sessions, negotiations on enforcement
continued in informal meetings and several new proposals were introduced. Finally, at
the end of the 7th session, the final text of the provisions on “Enforcement by Port
States” was completed and included in Art. 218 of the UNCLOS.36 During the same
session, a series of amendments were proposed by France following the Amoco Cadiz
incident. The amendments mainly aimed to limit the ability of the port State to institute
proceedings for discharge violations occurring outside its economic zone; such
proceedings could be instituted only at the request of the flag State. At the resumed 7th
session the French proposal was withdrawn. On the basis of the recommendations of the
Drafting Committee the article was put into its final form. However, the reorganization
of the text and its clarification did not affect its substance.37
3E FOREIGN VESSELS’ ACCESS TO PORTS AND CONDITIONS
OF ENTRY
A port is part of internal waters and internal waters are classified as an integral part of
the coastal State, which enjoys full territorial sovereignty over them. In relation to the
sovereignty of the coastal State there is no right of innocent passage through internal
36. UNCLOS 1982, Art. 218 reads as follows:
“218. Enforcement by port States
1.
When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may
undertake investigations and, where the evidence so warrants, institute proceedings in respect of
any discharge from that vessel outside the internal waters, territorial sea or exclusive economic
zone of that State in violation of applicable international rules and standards established through
the competent international organization or general diplomatic conference.
2. No proceedings pursuant to paragraph 1 shall be instituted in respect of a discharge violation in
the internal waters, territorial sea or exclusive economic zone of another State unless requested by
that State, the flag State, or a State damaged or threatened by the discharge violation, or unless the
violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive
economic zone of the State instituting proceedings.
3. When a vessel is voluntarily within a port or off-shore terminal of a State, that State shall, as far as
practicable, comply with requests from any State for investigation of a discharge violation referred
to in paragraph 1, believed to have occurred in, caused, or threatened damage to the internal
waters, territorial sea or exclusive economic zone of the requesting State. It shall likewise, as far as
practicable, comply with the requests from the flag State for investigation of such a violation,
irrespective of where the violation occurred.
4. The records of the investigation carried out by a port State pursuant to this article shall be
transmitted upon request to the flag State or to the coastal State. Any proceedings instituted by
the port State on the basis of such an investigation, may, subject to section 7, be suspended at the
request of the coastal State when the violation has occurred within its internal waters, territorial
sea or exclusive economic zone. The evidence and records of the case, together with any bond or
other financial security posted with the authorities of the port State, shall in that event be
transmitted to the coastal State. Such transmittal shall preclude the continuation of proceedings
in the port State.”
37. Nordquist, M.H., Vol. IV, p.270.
77
3.27
3.27
3.28
PORT STATE JURISDICTION
waters as exists through the territorial sea. When one considers the existence of
sovereignty over internal waters and the absence of any general right of innocent passage
through them, it is possible to reach the conclusion that there is no right under
customary international law for foreign ships to enter a State’s ports. However, a port
State’s right to deny access to its ports used for maritime trade has been the subject of
controversial theories and interpretations.38
The first evidence of the right of access to foreign ports is the 1923 Convention on the
International Regime of Maritime Ports. This Convention confirmed the freedom of
access to maritime ports by foreign vessels on condition of reciprocity. It also allows the
coastal State “in exceptional cases, and for as short a period as possible”, to deviate from
this provision by measures which that State “is obliged to take in case of an emergency
affecting the safety of the State or the vital interest of the country”.39
The arbitral tribunal in the Aramco dispute relied on this Convention.40 In this case, a
concession agreement was made in May 1933 between the government of the State of
Saudi Arabia and the Arabian American Oil Company. In January 1954, the
government of Saudi Arabia concluded an agreement with Mr. Onassis and his
company. Under this agreement he was given a 30-year “right of priority” for the
transport of Saudi Arabian oil. The dispute was whether the Saudi government was
entitled to make concessions of preferential treatment to tankers flying the Saudi
Arabian flag despite the agreement between the State and Aramco. The Aramco tribunal
based its conclusion on Art. 16 of the 1923 Ports Convention and stated that:
“It is indispensable that every sovereign State has the right to control its ports and to regulate as it
deems best, transportation from its territory. International case law and doctrine unanimously
admit that for the purpose of furthering its commercial, fiscal and political interests, a State must
be able to supervise all ships entering, leaving or anchoring in its territorial waters . . .. However,
the territorial sovereignty of the State over its means of maritime communication is not
unrestricted. It can only be exercised within the limits of customary international law, of the
treaties the State has concluded and of the particular undertakings it has assumed. This is clearly
provided for in Art. 16 of the Statute of the International Regime of Maritime Ports of December 9
1923.”
3.29
The right of access to ports has been considered by the Institute of International Law
on different occasions. The statements made by the Institute affirmed access to ports, as
a general rule, but at the same time confirmed that in exceptional cases the State has the
right of denial of access.41 Similarly, in the Nicaragua case, the International Court of
38. See Kasoulides, George C., pp.2–5.
39. The 1923 Convention on the International Regime of Maritime Ports, Art. 2 states as follows:
“Subject to the principle of reciprocity and to the reservation set out in the first paragraph of Art. 8, every
Contracting State undertakes to grant the vessels of every other Contracting State equality of treatment
with its own vessels, or those of any other State whatsoever, in the maritime ports situated under its
sovereignty or authority, as regards freedom of access to the port, the use of the port, and the full
employment of the benefits as regards navigation and commercial operations which it affords to vessels,
their cargoes and passengers. The equality of treatment thus established shall cover facilities of all kinds,
such as allocation of berths, loading and unloading facilities, as well as dues and charges of all kinds levied
in the name or for the account of the government, public authorities, concessionaries or undertakings of
any kind.”
40. Saudi Arabia v. Arabian American Oil Company (Aramco) Arbitration (1963) 27 I.L.R. 117.
41. In 1898, the Institute agreed that, as a general rule, access to ports “is presumed to be free to foreign
ships”, except when a State, “for reasons of which it is sole judge”, declares its ports, or some of them, closed
“when the safety of the State or the interest of the public health justifies the order”, or when it refuses entrance
to ships of a particular nation “as an act of just reprisal”. In 1928, the Institute stated that, as a general rule,
access to ports, “is open to foreign vessels”, but, as an exception, and for a term as limited as possible, “a state
78
GENERAL TERMS
3.30
Justice noted that it is “by virtue of its sovereignty that the coastal State may regulate
access to its ports”.42
In general, it appears that there is no customary international law rule that recognizes
the existence of a right of access to a port for a foreign vessel. There is very little support
in State practice for such a right, except for ships in distress seeking safety. However,
States may create mutual rights of entry by way of a treaty. Many of these rights may be
found in bilateral treaties of friendship, commerce and navigation. For instance, under
the Treaty of Commerce, Establishment and Navigation between the United Kingdom
and Japan 1962, Japanese vessels have “liberty of access to all ports, waters and places
open to international commerce and navigation” in the territory of the UK.
It also has to be remembered that developments in international trade and commerce
affect customary international law; so States which are keen to improve their trade
welcome foreign ships to their ports.
3F GENERAL TERMS
When a foreign vessel is in port it is not subject to the absolute authority of the port
State. Limitations do exist. States do not exercise jurisdiction in respect of the internal
affairs of foreign ships in their ports, although under strict law they would be entitled to
do so because of the voluntary entry of those ships within their territorial jurisdiction.43
There is limitation on port State control authority with regard to sovereign and
diplomatic immunities for State-owned vessels. The foreign vessel must be voluntarily in
the port as opposed to being forced into port by an emergency or weather. If a vessel is
driven to internal waters by force majeure or distress, it is entitled to be excused liabilities
that arise inevitably from its entry in distress. However, the extent of this limitation on
port State authority in customary law is not precise.44 Limitations on port State authority
over foreign vessels in port may be created through bilateral and multilateral treaty
practice regarding access to ports and treatment of vessels in ports. Port State
prescription and enforcement authority can extend only to activities of a foreign vessel
located in a port that occurred while the foreign vessel was in the national domain of the
local authority or where the activities of the foreign vessel affected the local State.
International law does not acknowledge that a State can enforce laws that deal with
activities of foreign nationals that took place beyond a State’s territory.45
may suspend this access by particular or general measures which it is obliged to take in case of serious events
touching the safety of the state or the public health”. In 1957, the Institute distinguished between internal
waters and ports, and pointed out that a coastal State may deny access to internal waters, “subject to the rights
of passage sanctioned either by usage or by treaty”, but should abstain from denying such access to foreign
commercial vessels “save in exceptional cases where this denial of access is imposed by imperative reasons”.
On the other hand, the Institute declared that “it is consistent with general practice of States to permit free
access to ports or harbours by such vessels”. Knight, G., and Chiu, H., The International Law of the Sea: Cases,
Documents and Readings (1991), p.278.
42. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States) [1986] I.C.J.Rep. 14, 111 (June 27).
43. “It is common practice for States to conclude bilateral consular conventions providing for the
reservation of jurisdiction over matters of internal discipline etc. to the authorities of the flag State.” Churchill,
R.R. and Lowe, A.V., The Law of the Sea (1988), p.56.
44. It has been stated in Churchill and Lowe that ships in distress must comply with some laws, which it is
reasonable to expect them to observe once they reach the relative calm of the port. Churchill, R.R. and Lowe,
A.V., p.57.
45. McDorman, T.L., “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea
Convention, Journal of Maritime Law and Commerce (1997) 28, pp.309–310.
79
3.30
3.31
3.31
PORT STATE JURISDICTION
The authority of a port State to enact and enforce regulations respecting foreign
vessels voluntarily in port can be summarized as follows:46
(i)
(ii)
(iii)
Customary and conventional international law, subject to limited exceptions,
allows a port State to enact and enforce regulations against foreign vessels for
actions or inactions that occur or exist while such vessels are in port.
The UNCLOS provides that a port State can enact and enforce regulations
against foreign vessels for actions or inactions that occur or exist while such
vessels were in the territorial sea or the EEZ of the port State.
Customary international law prohibits enforcement of local laws against
foreign vessels for actions or inactions that took place beyond the national
waters of the enforcing country, unless a specific treaty permits the enforcement action, or the activity of a foreign vessel outside national waters has an
effect within the enforcing port State.
3G THE UNCLOS PROVISIONS IN CONNECTION WITH PORT
STATE JURISDICTION
3.32
The UNCLOS has continued to recognize the primacy of the flag State’s jurisdiction
over ships but it also recognizes the increasing role of coastal and port States as they
supervise and ensure conformity with international law. Before the UNCLOS, port
State jurisdiction was permitted with respect to vessels in port for offences committed in
or affecting the port State’s coastal waters. With the UNCLOS, more powers were given
to port States. Port State jurisdiction is dealt with in Arts. 211(3), 218 and 219 of the
UNCLOS.47
Article 211(3) lays the basis for port State jurisdiction, the concept which Art. 218
develops with regard to enforcement. In other words, Art. 211 deals with legislative
jurisdiction—a concept distinct from that of enforcement jurisdiction. Under para. 3 of
this Article, States may establish particular requirements for the prevention, reduction
and control of pollution of the marine environment as a condition for the entry of foreign
vessels into their ports or internal waters or for calls at their offshore terminals. As Art.
211(3) deals with preventing vessel source pollution in areas within the State’s territorial
jurisdiction, the coastal State may, therefore, independently establish these particular
requirements. However, under this Article the coastal State must publicize these
conditions and communicate them to the “competent international organization”. If a
State decides to harmonize its policy with one or more other States then the
communication shall indicate which States are participating in such co-operative
arrangements.48 There are no special requirements regarding the publicity or the
46. Ibid., pp.306–308.
47. The application of these Articles in port jurisdiction cases have been addressed in the decision of the
Court of Appeal of New Zealand in William Rodman Sellers v. Maritime Safety Inspector, CA104/98. This case is
discussed in detail in the following parts of this Chapter.
48. UNCLOS 1982, Art. 211(3) states as follows:
“Pollution from vessels
3.
States which establish particular requirements for the prevention, reduction and control of
pollution of the marine environment as a condition for the entry of foreign vessels into their ports
or internal waters or for a call at their off-shore terminals shall give due publicity to such
requirements and shall communicate them to the competent international organization.
Whenever such requirements are established in identical form by two or more coastal States in an
80
THE UNCLOS PROVISIONS
3.34
communication which Art. 211(3) calls for. As pointed out by the IMO, the objective of
publicity will be effectively achieved only if the information in question reaches the
States, authorities, entities and persons that are expected to be guided by the
information.
While establishing certain State laws with regard to prevention, reduction and control
of pollution, States are under certain obligations as well. The details of Art. 211 give
major emphasis to agreed international rules and standards. While adopting the relevant
State laws relating to the territorial sea, the States are under obligation not to hamper the
right of innocent passage and, similarly, in the exclusive economic zone, the obligation is
to conform and give effect to generally accepted international rules and standards
established through the competent international organization or general diplomatic
conferences.
Traditionally, a vessel on the high seas has been subject to the exclusive jurisdiction of
the flag State. Part XII of the UNCLOS, Protection and preservation of the marine
environment, incorporates flag State enforcement. But if a foreign vessel causes
pollution beyond the limits of a coastal State’s territorial jurisdiction, then the flag State
cannot exercise jurisdiction. This problem has been solved by Art. 218, which embodies
port State jurisdiction. The Article simply enables the coastal State to investigate and, if
appropriate, institute proceedings in its own courts in respect of a vessel voluntarily
within one of its ports relating to discharges from that vessel outside its internal waters,
continental shelf or exclusive economic zone, in violation of applicable international
rules and standards established through the competent international organization or
general diplomatic conference. Once the vessel is in a port, not by reason of distress, but
voluntarily, the port State may enforce its laws against the vessel concerned if such vessel
has committed a breach of applicable international rules and standards. The enforcement authority of the port State depends upon whether the alleged discharge took place
on the high seas or in the national waters of another State. If the discharge incident takes
place on the high seas, Art. 218(1) permits the port State, on its own initiative, to
institute proceedings against the allegedly offending vessel that is voluntarily in port.49
There is an exception to this rule: the port State may enforce discharge standards against
foreign vessels if the discharge incident occurred in another State’s waters and the
“violation has caused, or is likely to cause, pollution” in the waters of the port State.
Proceedings against a foreign vessel for an alleged discharge incident that took place in
the waters of another State can be commenced only if the port State is requested to do so
by either the flag State, the State where the incident occurred, or a State threatened or
endeavour to harmonize policy, the communication shall indicate which States are participating
in such co-operative arrangements. Every State shall require the master of a vessel flying its flag or
of its registry, when navigating within the territorial sea of a State participating in such
co-operative arrangements, to furnish, upon the request of that State, information as to whether it
is proceeding to a State of the same region participating in such co-operative arrangements and, if
so, to indicate whether it complies with the port entry requirements of that State. This Article is
without prejudice to the continued exercise by a vessel of its right of innocent passage or to the
application of Article 25, paragraph 2.”
49. UNCLOS 1982, Art. 218(1) states as follows:
“Enforcement by port States
1.
When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may
undertake investigations and, where evidence so warrants, institute proceedings in respect of any
discharge from that vessel outside the internal waters, territorial sea, or exclusive economic zone
of that State in violation of applicable international rules and standards established through the
competent international organization or general diplomatic conference.”
81
3.33
3.34
3.34
3.35
3.36
PORT STATE JURISDICTION
damaged by the discharge.50 A port State’s jurisdiction is limited, however, by the fact
that a flag State, or the requesting coastal State, could intervene to have the
documentation on any investigation or proceeding the port State conducts transmitted
to it. Consequently, “the evidence and records of the case, together with any bond or
other financial security posted with the authorities of the port State, shall in that event be
transmitted to the coastal State. Such transmittal shall preclude the continuation of
proceedings in the port State”.51 In other words, the enforcement process initiated by the
port State terminates.
Under Art. 218(3), the port State is under obligation to comply not only with the
requests of the flag State but also with requests from all other States for investigation in
respect of possible discharge violations in the internal waters, territorial sea, or exclusive
economic zone of the requesting State.
The concept of port State jurisdiction, as provided under Art. 218, has caused
discussion. As explained above, Art. 218 gives the authority to port States to enforce
discharge standards against foreign vessels for activities on the high seas, or in the waters
of other States. With respect to violations committed on the high seas, international law
recognizes two principles, namely the “effects principle” and the “universality principle”. In order to apply the effects principle, the discharge giving rise to enforcement
authority must have an effect in the port State. Under Art. 218, there is no requirement
that the discharge giving rise to enforcement authority have an effect in the port State. In
practical terms, obtaining evidence in order to establish a connection between the
discharge of polluting substances into the high seas and damage caused to the coasts of
the port State where the vessel has called would be very difficult or impossible. The issue
of the application of the universality principle to justify port State enforcement
jurisdiction on the high seas remains controversial. Some state that “the international
community has yet to recognize the vessel-source marine pollution as an activity
equivalent to piracy or torture that would allow for universal prescription and
enforcement irrespective of the locus of the pollution damage”. There are also contrary
arguments.52
Another issue is whether the obligations and rights under Art. 218 are confined to
“States party to the Treaty”. Under Art. 218, the wording is not restricted to “States
party”. Would this be interpreted as allowing States to apply the rights without
ratification? The use of the term “States” is not limited to Art. 218. Throughout the rest
of the treaty, terms such as “all States”, “any State”, “every State”, “coastal States” and
“flag States” are used. It is not clear from these words whether third States enjoy rights
under the Convention. The only way to ascertain this is by examining the official
statements made by the representatives of States participating in the Third United
Nations Conference on the Law of the Sea. When the delegations’ speeches on the
50. UNCLOS 1982, Art. (218)(2) provides as follows:
“Enforcement by port State
2.
No proceedings pursuant to paragraph 1 shall be instituted in respect of a discharge violation in
the internal waters, territorial sea or exclusive economic zone of another State unless requested by
that State, the flag State, or a State damaged or threatened by the discharge violation, or unless the
violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive
economic zone of the State instituting the proceedings.”
51. UNCLOS 1982, Art. 218(4).
52. See McDorman, T.L., p.318, For contrary arguments, see Bodansky, D., pp.768–770. See also Keselj,
T., pp.135–136.
82
THE UNCLOS PROVISIONS
3.37
subject of third States’ rights are examined, it is possible to argue that the reference to
“all States” or “every State” reflects the assumption that all States would be parties to the
Convention. Another expectation would be that some of the rules of the Convention
would become customary law in the future. As suggested by Lee, the choice of words
used in the Convention reflects the negotiators’ beliefs and hopes that the UNCLOS
would achieve widespread acceptance and that some of the provisions reflected, or
would in time come to reflect, customary international law.53 The wording of Art. 218
suggests that exercising port State jurisdiction is not conditional on the UNCLOS
coming into effect and that foreign vessels against which the port State can exercise
jurisdiction need not be from States that are parties to the UNCLOS. On the basis of the
discussions made on the meaning of the terms used in the Convention, “the best
interpretation of the application of Art. 218 is that States that ratify the UNCLOS can
only enforce international high seas discharge rules and standards that they have
accepted against vessels from States that have also accepted the same international
discharge rules and standards, hence the use of the phrase in Art. 218(1) of ‘applicable
international rules and standards’ ”.54 On the basis of this interpretation, “a flag State
against which port State enforcement is utilized is not required to be a party to the
UNCLOS, although the flag State would have to have accepted the common
international discharge rules and standards applied by the port State”.55
Under Art. 219, where a port State has ascertained that a vessel in one of its ports is “in
violation of applicable international rules and standards relating to seaworthiness of
vessels and thereby threatens damage to the marine environment”, it shall take
administrative measures to prevent the vessel from sailing until the causes of the
violation have been removed or unless the vessel is going to the nearest repair yard.56 The
wording used under Arts. 218 and 219 defines the extent of the legal obligation of the
port State to intervene in respect of discharge violations occurring in the cases discussed
above. Article 218 uses the verb “may” instead of “shall”. Article 219, contrary to Art.
218, uses the verb “shall” instead of “may”, which implies that States are always obliged
to take the administrative measures mentioned whenever the type of violation outlined
takes place.
53. According to Lee, L.T., “The Law of the Sea Convention and Third States” (1993) 7 American Journal
of International Law 549, the terms “all States” and “every State”, as used in the Convention, may be held to
have any of the following four meanings:
(1) the plain and natural meaning to include all States, whether or not parties to the Convention, as
beneficiaries of rights in the Convention;
(2) as synonyms for “States parties” where the intent of the parties is to that effect, as indicated in
some statements made in Montego Bay;
(3) as a denotation of customary rules, and hence binding upon all states; or
(4) as an intent to generate customary rules.
54. McDorman, T.L., p.319.
55. Ibid.
56. UNCLOS 1982, Art. 219 states as follows:
“Measures relating to seaworthiness of vessels to avoid pollution
Subject to section 7, States which, upon request or on their own initiative, have ascertained that a
83
3.37
3.38
PORT STATE JURISDICTION
3H “APPLICABLE INTERNATIONAL RULES AND STANDARDS”
3.38
The phrase “applicable international standards and practices” occurs frequently and
with some variation in the wording of the UNCLOS.57 This raises the question of which
international rules and standards are applicable.58 Article 218 provides that a port State
may conduct inspections and institute proceedings against vessels for discharges on the
high seas in violation of “applicable international rules and standards”. Similarly under
Arts. 211(2), (5), (6) and 226(1)(a), references have been made to “generally accepted
rules and standards”.
Different comments have been made about the meaning of these terms.59 As a general
rule, if a standard is widely followed and enforced and is incorporated in national laws,
this could constitute evidence of general acceptance. However, if it is accepted that the
reference is made to standards recommended by the IMO and accepted by a majority of
States, then the issue becomes controversial. For instance, the provisions of MARPOL
may be identified as generally accepted international rules and standards because of
their international acceptance and wide applicability. If the State is a party to the
UNCLOS but not to MARPOL, would the latter be binding on that State as a
consequence of signing UNCLOS? Would the standards established by the IMO
include only those contained in Conventions, or do they include those contained in
non-binding IMO Assembly resolutions?60 In more general terms, are States parties to
the UNCLOS bound to implement generally accepted IMO regulations even if they are
not parties to the IMO treaties in which these regulations are contained?61
vessel within one of their ports or at one of their off-shore terminals is in violation of applicable
international rules and standards relating to seaworthiness of vessels and thereby threatens damage to
the marine environment shall, as far as practicable, take administrative measures to prevent the vessel
from sailing. Such States may permit the vessel to proceed only to the nearest appropriate repair yard
and, upon removal of the causes of the violation, shall permit the vessel to continue immediately.”
57. Similar wording can be found in UNCLOS articles that are expressed in a language which varies
depending on subject matter: States parties must “take account of”, “conform to”, “give effect to”, or
“implement” “generally accepted international regulations”, “applicable international instruments”,
“generally accepted international regulations, procedures and practices”, etc.
58. The difficulty in clarification of the term “internationally accepted rules and standards” has been
commented upon by the Legal Committee of the IMO as well.
“It appears to be generally accepted that the international regulations and standards adopted by IMO
constitute a major component of the ‘generally accepted’ international regulations and standards in
matters relating to safety of navigation and the prevention and control of marine pollution from vessels
and by dumping.
However, since there are no express provisions in the Convention identifying the regulations and rules
which may be considered as ‘generally accepted’ or ‘applicable’ in particular contexts, States and other
interested entities will expect some guidance with regard to the status of IMO regulations and standards in
relation to the provisions of the Convention on the Law of the Sea. The need for guidance will apply not
only in respect of the conventions and treaty instruments of IMO, but also in relation to the large body of
important international rules, regulations, standards and recommended practices which have been
adopted by IMO and embodied in Recommendations, Codes, Guidelines, General Principles and
Manuals, etc.”
International Maritime Organization, Implications of the United Nations Convention on the Law of the Sea, 1982
for the International Maritime Organization (IMO): Study by the Secretariat of IMO (IMO Dec. LEG/MISC/1,
February 10 1986), p.2.
59. For the summary of interpretations, see the Draft Interim Report in Preparation for the Helsinki
Meeting of International Law Association by Franck Erik. International Law Association, Committee on
Coastal State Jurisdiction, Draft Interim Report in Preparation for the Helsinki Meeting, (1996), pp.12–14.
60. See Churchill, R.R. and Lowe, A.V., p.256.
61. See Blanco-Bazán, A., , “IMO Interface with the Law of the Sea Convention”, Seminar on current
maritime issues and the work of the International Maritime Organisation, 23rd Annual Seminar of the Center
for Ocean Law and Policy, University of Virginia School of Law, IMO, January 6–9 2000.
84
APPLICATION OF UNCLOS PROVISIONS
3.41
The language used in the UNCLOS is general and has a restrictive operative
character. The Convention is intended to take the form of an umbrella treaty. In a study
carried out by the IMO, “Implications of the entry into force of the United Nations
Convention on the Law of the Sea for the International Maritime Organisation”,62
“UNCLOS is acknowledged to be an ‘umbrella convention’ because most of its
provisions, being of a general kind, can be implemented only through specific operative
regulations in other international treaties”. As stated by Blanco-Bazán, this declaration
implies that IMO rules and standards are very precise technical provisions which cannot
be considered as binding among States unless they are parties to the treaties where these
provisions are contained. UNCLOS provisions aim to provide an effective implementation of substantive safety and anti-pollution rules.63 However, the provisions of the
Convention regulate the features and extent of State jurisdiction but not the
enforcement of measures regulated in other treaties. Consequently, if parties to
UNCLOS are also parties to the IMO conventions under which IMO rules and
standards are contained, then UNCLOS obligations to enforce these rules and
standards should be understood as operative. However, the obligation to apply IMO
rules and standards should be interpreted in accordance with related UNCLOS
provisions on compatibility with other treaties. Through the operation of Art. 311,
Relation to other Conventions and international agreements, and Art. 237, Obligations
under other Conventions on the protection and preservation of the marine environment,
the UNCLOS recognizes the importance of other treaties as a source of international
law.
3.39
3I APPLICATION OF UNCLOS PROVISIONS IN PORT STATE
JURISDICTION CASES
3I.1 William Rodman Sellers v. Maritime Safety Inspector64
In William Rodman Sellers v. Maritime Safety Inspector, the New Zealand Court of
Appeal discussed port State jurisdiction in relation to the relevant areas of the law of the
sea. The case deals with the exercise of jurisdiction over a foreign ship in port and with
the right to detain that foreign ship by refusing its port clearance. In this case, William
Rodman Sellers was the owner and master of the cutter Nimbus registered in the port of
Valletta, Malta. Between April 30 1995 and May 3 1995, he, as the master, permitted
the Nimbus to leave Opua for an overseas port without obtaining the clearances from the
New Zealand Maritime Safety Authority (MSA), as required by the Maritime Transport
Act 1994 (“the Act”). He returned to New Zealand at the end of 1995 and on his return
he was prosecuted for the breach of the Act and convicted. His appeal to the High Court
was dismissed. The case went before the Court of Appeal.65
The reason for Sellers’ conviction was that he refused to carry the radio and
emergency location beacon equipment required by the Director of MSA in guidelines
issued under s.21 of the Act.
The court considered the Lotus case as the Crown attempted to rely upon the effects
62. LEG/MISC/2, October 6 1997.
63. Ibid.
64. New Zealand C.A. 104/98.
65. See Devine, D., “Port State Jurisdiction: a Judicial Contribution from New Zealand” (2000) 24 Marine
Policy, pp.215–219.
85
3.40
3.41
3.41
3.42
doctrine as a basis for the exercise of preventative port State jurisdiction. The punitive
jurisdiction of a port State over a foreign ship in relation to events which had taken place
on the high seas was considered in detail in Lotus. In this case, it was stated that what
occurs on board a vessel on the high seas must be regarded as if it occurred on the
territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the
high seas produces its effects on a vessel flying another flag or in foreign territory, the same
principles must be applied as if the territories of two different States were concerned, and
the conclusion must, therefore, be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken place
belongs from regarding the offence as having been committed in its territory and
prosecuting, accordingly, the delinquent.66
The international community disagreed with the court’s decision in Lotus and the
more limited jurisdiction is now restated in three Conventions: the International
Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in
Matters of Collision or Other Incidents of Navigation 1952; the Geneva Convention on
the High Seas 1958; and the Law of the Sea Convention 1982, Art. 97.
With regard to port State powers, the court referred to the following Conventions:
ILO Convention No. 147 concerning Minimum Standards in Merchant Ships 1976; the
International Convention on Load Lines 1966; the Convention on the International
Regulations for Preventing Collisions at Sea 1972; SOLAS 1974; and STCW 1978. The
powers of port States have four significant features under these Conventions. These are:
(i)
(ii)
(iii)
(iv)
3.43
PORT STATE JURISDICTION
they continue to play a secondary role to that of the flag State;
they only create jurisdiction over ships in a dangerous state;
the determination of danger is on the basis of international standards, the
coastal State has no power to impose any additional requirements;
they do not in general extend to pleasure craft.67
This statement makes it clear that none of the relevant Conventions would have given
detention jurisdiction in the Sellers case. The craft was not in a dangerous state; it was
detained purely on national standards; and the craft was a yacht and, therefore, a
pleasure craft.
It was stated by the Court of Appeal that the lack of unilateral national power to create
safety obligations for foreign ships on the high seas is also to be inferred from the express
denial of any such power of a coastal State in respect of a foreign ship once it has left port
and is passing through the territorial sea to the high seas. The reference has been made to
UNCLOS Art. 21(1) and (2), the latter of which limits the law of coastal States on
design, construction, manning and equipment of foreign ships to giving effect to
generally accepted international rules and standards.
The Maritime Safety Authority argued that customary international law allows the
port State to have control over matters of external effect where that is necessary to
protect an important State interest, even when this means that, in fact, the requirements
imposed by the port State will have effect on the high seas. In order to support this
argument, reference was made to particular provisions of the UNCLOS and the
Canadian Arctic Waters Pollution Act 1970. Under this Act, the powers claimed applied
66. Emphasis added.
67. Some limited provisions of SOLAS relating to safety of navigation, such as the duty to rescue, the duty
to carry charts, and safety routes, do extend to pleasure craft but they do not extend to areas of safety and other
certification, nor to detention.
86
APPLICATION OF UNCLOS PROVISIONS
3.44
to arctic waters within 100 nautical miles of the nearest Canadian land. The statute
prohibited the deposit of waste in the area and provided for the prescribing of shipping
safety control zones. Regulations could be made prohibiting ships from navigating in
those zones unless they complied with certain safety standards relating to construction,
crewing and other matters. Pollution prevention officers were given the power to board
ships in the zones, inspect them and order them out of the zone if they were in breach.
Offences were established and provision was made for forfeiture. The court was sceptical
about this legislation as, when this legislation was introduced, Canada narrowed its
acceptance of jurisdiction of the International Court of Justice by excluding disputes in
respect of the prevention or control of pollution or contamination of the marine
environment in marine areas adjacent to the coast of Canada.68 The US expressed
concern about the precedent that would be established and called for international
solutions rather than national approaches. A major aspect of that resolution is to be seen
in the adoption 12 years later of Art. 234 of the UNCLOS.69 This Article allows coastal
States to adopt anti-pollution laws in ice-covered exclusive economic zone areas, subject
to certain conditions. However, as pointed out by the court, it is the only provision (a lex
specialis) in Part XII on the protection and preservation of the marine environment that
accords a coastal State the right to adopt and enforce within its exclusive economic zone
its own non-discriminatory laws relating to marine pollution. This showed a great
reluctance to recognize or confer coastal State powers to impose national law on foreign
vessels on the high seas, even within the country’s exclusive economic zone, to protect its
coastal interests. Therefore, no general principle was drawn from the existence of such a
lex specialis.
The two provisions of the UNCLOS cited in support of the respondent’s broad
proposition about port State powers are taken from Part XII, Protection and
preservation of the marine environment. Article 211(3) allows States to establish their
own anti-pollution requirements as a condition for entry to their ports. However, the
limit of subject matter, and the limit to rules relating to entry, indicate that no broader
principle of port State power to protect national interests is evidenced by this provision.
In addition, Art. 211(3) deals with entry into internal waters, including ports. It does not
deal with the question of exit from these areas. This is why it cannot be interpreted as
giving any additional competences in relation to exit.70
68. At that time, Prime Minister Trudeau alleged that international law did not sufficiently protect
countries from pollution in international waters. It was important for Canada to take further steps to help
international law develop while looking to the possibility of international action on the matter. As anticipated,
a week later the US rejected the proposed legislation.
69. UNCLOS 1982 Art. 234 states as follows:
“Ice covered areas
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the
prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of
the exclusive economic zone, where particularly severe climatic conditions and the presence of ice
covering such areas for most of the year create obstructions or exceptional hazards to navigation, and
pollution of the marine environment could cause major harm to or irreversible disturbance of the
ecological balance. Such laws and regulations shall have due regard to navigation and the protection and
preservation of the marine environment based on the best available scientific evidence.”
70. It has been stated by Devine that if a ship entered in violation of the entry requirements, a prosecution
might take place and as a result the ship might be detained (or even forfeited). However, in this case, the port
State would be exercising its sovereign jurisdiction over events taking place in its internal waters and it would
be exercising a punitive jurisdiction ex post facto. It would not be exercising a priori jurisdiction with the
objective of preventing probable occurrences in marine areas later. See, Devine, D., p.217, n.7.
87
3.44
3.44
3.45
3.46
PORT STATE JURISDICTION
Article 218 was the second provision cited. It allows a coastal State to investigate and,
if appropriate, institute proceedings in its own courts in respect of a vessel voluntarily
within one of its ports relating to discharges from that vessel outside its internal waters,
continental shelf or exclusive economic zone in violation of applicable international
rules and standards established through the competent organization or general
diplomatic conference. The court held that this Article provides no support for the
proposition advanced, that the coastal States have powers to extend unilateral
requirements protecting an important State interest to foreign ships on the high seas.
Furthermore, the provision makes it plain that the discharge may have had nothing to do
at all with the port State. It might even have occurred in the waters of another State.
Reference was also made to Art. 9871 of UNCLOS and to the 1979 International
Convention on Maritime Search and Rescue. Article 98 and the Convention impose
search and rescue obligations on New Zealand in the vast area of the Pacific Ocean. It
was argued that on the basis of this Article and Convention, New Zealand should be able
to impose radio and locator beacon requirements on ships leaving its ports in order to
protect its interests from the effects of ships leaving without such equipment. The court
interpreted the instruments as imposing obligations on coastal States but not conferring
any rights or powers in support of these responsibilities.
There was also a discussion on whether it would be possible to detain the Nimbus
under general right of detainment contained in Art. 219 of the UNCLOS. In order to use
the right of detention under this Article, the vessel must be in violation of international
standards relating to seaworthiness and thereby threaten damage to the marine
environment. The Article would apply to the yacht as a pleasure craft but it would not be
possible to use the general power of detention, as the yacht was not unseaworthy in terms
of international standards. It also did not present any threat to the marine environment
anywhere. It basically just breached the rules of the New Zealand Maritime Transport
Act 1994.
In its conclusion on the relevant rules of international law, the New Zealand Court of
Appeal stated that a port State has no general power unilaterally to impose its own
requirements on foreign ships relating to their construction, their safety and other
equipment and their crewing if the requirements are to have effect on the high seas. Any
requirements cannot go beyond those generally accepted under maritime Conventions
and Regulations. In this case, the court had not been referred to any generally accepted
requirements regarding pleasure craft. It was also added by the court that any such port
State powers relate only to those foreign ships which are in a hazardous state.
3I.2 The New Zealand Maritime Transport Act 1994 and international law
3.47
For over a century the New Zealand courts have made it clear that legislation
regulating maritime matters should be read in the context of the international law of the
sea and, if possible, consistently with that law. Maritime rules promulgated by the
Minister of Transport must not be inconsistent with international standards relating to
71. UNCLOS 1982, Art. 98(2) provides as follows:
“Duty to render assistance
2.
Every coastal State shall promote the establishment, operation and maintenance of an adequate
and effective search and rescue service regarding safety on and over the sea and, where the
circumstances so require, by way of mutual regional agreements co-operate with neighbouring
States for this purpose.”
88
APPLICATION OF UNCLOS PROVISIONS
3.49
maritime safety and the health and welfare of seafarers to the extent adopted by New
Zealand. The emphasis on compliance with, and implementation of, relevant parts of
international law appears throughout almost every part of the Maritime Transport Act.
Against this background, the Court of Appeal examined s.21 of the Maritime Transport
Act.
Section 21(1), headed “Pleasure craft departing for overseas”, reads as follows:
(1) No master of a pleasure craft shall permit that pleasure craft to depart from any port in
New Zealand for any place outside New Zealand unless:
(a) The Director has been notified in writing of the proposed voyage and the full
name of the person who is in command of the pleasure craft; and
(b) The Director is satisfied that the pleasure craft and its safety equipment are
adequate for the voyage; and
(c) The Director is satisfied that the pleasure craft is adequately crewed for the
voyage; and
(d) The pleasure craft and the master comply with any relevant maritime rules.
The effect of this provision is to place limits on the exercise of the freedom to navigate on
the high seas by reference to the adequacy of the ship, her crew and her equipment for the
voyage.
The discussion about the interpretation of s.21(1) can be summarized under three
points:
(i)
(ii)
(iii)
3.48
Is it possible to interpret the expression “a pleasure craft” in s.21(1) as meaning
only New Zealand registered ships? If the provision appeared alone, such
interpretation might have been possible, but the usage throughout the Act
denies that possibility. The Act distinguishes between different categories of
ships for different purposes, e.g.:
— a ship;
— a New Zealand ship;
— a foreign ship;
— a foreign ship in New Zealand waters.
The Act also carefully identifies foreign ships or “ships other than New
Zealand ships” when they are to be subject to the provision or are to be
excluded from it.
Can the territorial scope of the provision be interpreted in such a way that it
applies only to New Zealand internal waters and does not have effect on high
seas activities or on the exercise of rights of innocent passage through the
territorial sea? The provision is concerned with the adequacy of the ships, the
equipment and the crew “for the voyage”. The “voyage”, as confirmed by
s.21(1), is the journey from the New Zealand port through the New Zealand
territorial sea, over the high seas, into foreign territorial seas and foreign
internal waters to the foreign port.
The powers of the Director of Maritime Safety to make determinations in
respect of the adequacy of the ship, equipment and crew must be exercised in
accordance with the relevant rules of international law. The powers would
develop along with the relevant rules of international law. The international
developments would give the provision an increased content as and when the
internationally accepted standards and port States were enhanced.
The Court of Appeal concluded that, on the substance of s.21(1)(b) and (c) and the
related limits arising from international law, all that the Director would be entitled to be
89
3.49
3.49
3.50
PORT STATE JURISDICTION
satisfied about in relation to the adequacy of a foreign pleasure vessel, its equipment and
its crew would be to ensure compliance with international standards and rules, to the
extent that they allowed that judgement to be made by a coastal State. That extent would
be widened when and to the extent that international law allowed.72 For centuries,
national law in this area has been essentially governed by and derived from international
law, with the consequence that national law is to be read, if at all possible, consistently
with the related international law. That will sometimes mean that the day-to-day (or at
least year-to-year) meaning of national law may vary without formal change. The
Director of Maritime Safety in his procedures for the granting of clearance under s.21(1)
had set minimum requirements that are not permitted by international law. Those
requirements are in breach of the powers conferred by s.21(1), as that provision is to be
understood at present. Therefore the court held that Sellers should not be held to be
committing an offence for not complying with requirements set without lawful
authority. The requirement for vessels to leave port with a radio and emergency locator
beacon was of a purely national character, contrary to international law and beyond the
powers of the MSA.
With the decision of the Court of Appeal in William Rodman Sellers v. Maritime Safety
Inspector, it became clear that the Lotus decision would not establish a basis for a port
State to exercise a priori preventative jurisdiction over foreign ships that would affect
their high seas activities. Port States do not have additional competence to enact purely
municipal legislation on construction, design, crewing or equipment standards for
foreign ships. Port States are given authority under the Conventions in order to ensure
safety, health or environmental interests. This power cannot be used for the purpose of
protecting the port State’s search and rescue team. Search and rescue responsibilities do
not provide a legal basis for the exercise of a priori preventative jurisdiction over foreign
ships by port States. It has been confirmed by the court that, while imposing the power of
detention under UNCLOS Art. 219, the port State may not impose construction,
design, crewing or equipment standards on foreign ships unless these are international
standards. The detention power must only be exercised for environmental reasons.73
72. UNCLOS 1982, Art. 98(2) provides as follows:
“Duty to render assistance
2.
Every coastal State shall promote the establishment, operation and maintenance of an adequate
and effective search and rescue service regarding safety on and over the sea and, where the
circumstances so require, by way of mutual regional agreements co-operate with neighbouring
States for this purpose.”
73. See Devine, D., pp.218–219.
90
CHAPTER 4
Introduction to Port State Control and IMO Guidelines
4A THE SAFETY NET
When one reads the literature about port State control, one comes across statements
to the effect that port State control is the last “safety net” and that, in an ideal world, it
would not be necessary. What is this safety net? And how would the system work in an
ideal world?
The safety net has been created to prevent substandard ships from trading on the high
seas. It consists of six main elements:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
4.1
international Conventions of the IMO;
the Conventions of the ILO;
flag State control;
classification societies;
the marine insurance industry; and
port State control.
The holes in this safety net have been explained in an article in Seatrade Review with
reference to the San Marco case.1 The San Marco, then known as the MV Soral, was a
1968-built Panamax dry bulk carrier. It was owned by a succession of one-ship
brass-plate companies. In March 1991 it was sold to a company named Sea
Management for $3.2 million. The vessel traded as the San Marco under the ownership
of another brass-plate company, Shipping of Nicosia, Cyprus. In May 1993, it was
detained by the Canadian Coast Guard (CCG) for serious structural, firefighting and
lifesaving defects. Following this incident, the vessel’s P&I club withdrew cover. As the
owner would not do immediate repairs, the San Marco’s classification society, Bureau
Veritas, withdrew class after an inspection.
During May 1993, the vessel had been inspected by an Hellenic Register of Shipping
(HRS) surveyor for a class transfer from BV and found to be “in good condition and
well-maintained”. It was issued with clean class certificates, i.e. containing no repair
recommendations. The vessel had BV certificates valid to 1995 and no recommendations. Towards the end of June, at the request of shipowner, the CCG allowed the San
Marco to depart from Vancouver under tow. The interesting point is that, although the
HRS issued a clean class certificate and the vessel had BV certificates valid to 1995, the
CCG only allowed the vessel to be towed unmanned.
The CCG had no legal power to compel the owner to do repairs locally.
1. “Holes in the System”, January 1994, Seatrade Review, pp.6–7.
91
4.2
4.2
4.3
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
Soon after leaving Canadian waters, the tow to the San Marco was cut and a crew put
on board by helicopter.
From then on, the vessel continued to trade, unrepaired, with clean HRS certificates.
Obviously, if Canadian port State control had the legal power to demand repairs before
departure, the vessel would have been prevented from trading in a dangerously
unseaworthy condition. As this was not the case, the San Marco managed to slip through
the safety net.
In November 1993, while she was 150–200 miles off the South African coast on a
voyage from Morocco to Indonesia, she lost some 147 metres of shell plating from both
sides of her No.1 hold and all 5,000 tonnes of cargo in that hold. The ship put into Cape
Town as a port of refuge and was quickly detained by the Department of Transport. As it
was not possible to continue trading her without spending substantial amounts of money
on repairs, the vessel was subsequently sold for scrap at a public auction.
As illustrated in the San Marco case, shipowners, classification societies, insurers and
flag State administrators had failed to do their job properly. If all parties concerned had
acted responsibly and prudently, port State control would not have been necessary. But
the control mechanisms applied by the flag States and classification societies have
proved not to be sufficient in eliminating all substandard vessels from the industry.
Six years after the San Marco case, the Erika incident yet again forced a radical
re-assessment of the industry’s safety net. Shortly after the incident, the IMO’s
Secretary-General, William O’Neil, told an audience of shipowners that “The Erika was
under class and had been inspected by port State control and industry inspectors several
times, yet none of these surveys showed that the ship was about to split in two. We are all
bound to ask why not”.2
Only one and a half years after the Erika incident, the effectiveness of the safety net
came under discussion again with the loss of the Prestige and subsequent oil spill. As
acknowledged by the IMO Secretary-General: “. . . while recognizing that substantial
process has been made, there is still a lot to be done . . ..”3
4 B C O N T R O L P R O V I S I O N S I N I M O C O N V E N T I O N S4
4.4
The provisions for the control of ships in foreign ports originate from the inclusion of a
regulation in the SOLAS Convention. The history of control provisions, aiming at
verifying whether certificates carried on board ships in accordance with the specific
requirements of Chapter I of the SOLAS Convention, are valid or not, goes back to
1914. This was the year in which the first SOLAS Convention was adopted.
In the 1914 Convention, provisions were adopted for the control of ships while they
were in ports of contracting governments. Those provisions formed Art. 61. Although
2. “IMO: building maritime partners”, IMO News (2000) 3, p.16.
3. Speech by William O’Neil, Secretary-General, IMO, “IMO—new developments on the way”, Maritime
Cyprus 2003 Conference, September 22 2003.
4. See Mitropolous, E.E. “The Control of Foreign Ships in Ports and Offshore Terminals According to
IMO Conventions” IMO/UNDP/USSR Seminar on “Ports and Related Maritime Safety and Pollution
Prevention and Combat Aspects”, Odessa, August 16–29 1985.
92
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.6
this Article was vague and general, it has been repeated in a modified and more detailed
form in all SOLAS Conventions following the first one.5
In many IMO Conventions, certificates are required to be carried on board ships to
show that they have been inspected and found to meet the required standards. These
certificates are generally accepted as proof by authorities of other States that the vessel
concerned has reached the required standards. However, if there are clear grounds for
believing that the condition of the ship and its equipment does not correspond
substantially with the particulars of the certificates carried by the ship, or if a certificate
has expired or ceased to be valid, further action can be taken. Therefore, the action
requested by the Conventions is not limited to the port State finding out whether the
inspected ship complies with the particulars of its certificates, but it goes one step
further: the detention or delay of departure of the substandard ship.
In the context of the control requirements, in some IMO Conventions (i.e. SOLAS,
MARPOL, STCW) there is also a provision for adequate safeguards in favour of ships
unduly detained or delayed. The related provision in these conventions states as follows:
4.5
“When exercising control . . . all possible efforts shall be made to avoid a ship being unduly
detained or delayed. If a ship is thereby unduly detained or delayed it shall be entitled to
compensation for any loss or damage suffered.”
In order to encourage wider participation, a number of IMO Conventions provide
that parties to these Conventions shall apply the requirements of the same, with respect
to ships of non-parties, as may be necessary to ensure that “no more favourable
treatment” is given to such ships. SOLAS Protocol 78, Art. II(3); MARPOL 73/78, Art.
5(4) and STCW 78, Art. X(5) state that no more favourable treatment is to be given to
the ships of countries which are not party to the relevant convention.
As ships of non-parties and ships below Convention size are not provided with
SOLAS and Load Line Convention or MARPOL certificates, or the crew members may
not hold valid STCW certificates, the Port State Control Officer (PSCO) should be
satisfied that the ship and crew do not present a danger to those on board or an
unreasonable threat of harm to the marine environment. If the certification of the ship or
crew is in a form that is different from that required by a Convention, the PSCO may
take the form and content of this document into account in the evaluation of that ship.
The conditions of such a ship and its equipment, the certification of the crew and the flag
State’s minimum manning standard, should be compatible with the aims of the
provisions of the Conventions. If this is not the case, the ship should be subject to such
restrictions as are necessary to obtain a comparable level of safety and protection for the
marine environment.
4C RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
Primary statutory responsibility to safeguard against substandard ships lies with the
flag State. Flag State control is the first and most important tier of enforcement.
5. Under Art. 54 of the 1929 SOLAS Convention, intervention is permitted to officers carrying out the
control. But it does not have any provision allowing them to take steps in order to ensure that a ship whose
condition was found not to substantially correspond with the particulars of its certificate would not sail until it
could proceed to sea without danger to its passengers or crew.
93
4.6
4.6
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
International Conventions have been created and developed on the basis of the safety of
ships being regulated by the flag States.
According to Fernando Plaza,6 the IMO recognizes that “absolute safety in any
transportation system is unattainable. Any safety level adopted is always a compromise
based on technology available, operational efficiency, cost-effectiveness, reliability in
the marine environment and social and political safety expectations in the society
concerned”. The IMO aims to adopt the highest practicable safety standards in order to
receive virtual global acceptance within a reasonably short time. IMO Conventions
place the responsibility for technically and environmentally safe ships primarily on the
flag State. However, many IMO Conventions recognize port State control and contain
provisions that allow such control. These include:
— SOLAS 74, reg. I/19, reg. IX/6 and reg. XI/4;
— Load Lines Convention 1966, Art. 21;
— MARPOL 73/78, Arts. 5 and 6, reg. 8A of Annex I, reg. 15 of Annex II, reg. 8 of
Annex III and reg. 8 of Annex V;
— STCW 78, Art. X and reg. I/4;
— Tonnage Convention 1969, Art. 12.
4C.1 International Convention for the Safety of Life at Sea 1974 (SOLAS 74)
4.7
The Convention covers a wide range of measures designed to improve the safety of
shipping. These include subdivision and stability; machinery and electrical installations;
fire protection, detection and extinction; lifesaving appliances; radiotelegraphy and
radiotelephony; safety of navigation; carriage of grain; carriage of dangerous goods; and
nuclear ships.
Under SOLAS, it is the flag States’ responsibility to make sure that ships under their
flag comply with its requirements by a number of certificates prescribed in the
Convention. Under control provisions of the Convention, parties to the Convention
have the right to inspect ships of other contracting States if there are clear grounds for
believing that the ship and its equipment do not substantially comply with the
requirements of the convention.
SOLAS 74 came into force in on May 25 1980. Since then it has been modified by
amendments adopted at regular intervals.
The Convention applies to all passenger ships irrespective of size, and all cargo ships
of 500 gt and over when engaged in international voyages, unless expressly provided
otherwise under the Convention. Ships of war and troopships, cargo ships of less than
500 gt, ships not propelled by mechanical means, wooden ships of primitive build,
pleasure yachts not engaged in trade, and fishing vessels are not covered under the
Convention.
Under reg. 19 of SOLAS Chapter I, PSCOs are given the right to control foreign ships
calling at their ports to make sure that they have valid certificates. These certificates are
normally accepted as proof by authorities of other States that the vessel concerned has
reached the required standards; but in some cases, further action can be taken. The
PSCO carrying out the control shall take steps to ensure that the ship shall not sail until it
6. Plaza, F. (senior deputy director, IMO maritime safety division), “The Importance of Port State
Control. Achieving Consistency For Port State Control System”, Port State Control: Managing Safety and
Quality in Shipping, July 10–11 2000, Lloyd’s List Events, London.
94
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.8
can proceed to sea without danger to its passengers or crew, if there are clear grounds for
believing that the condition of the ship and its equipment does not correspond
substantially with the particulars of the certificate(s) carried by the ship, or if the
certificate has expired or ceased to be valid. In such cases, the facts of the case must be
reported to the IMO and the flag State must be informed of the circumstances.
Regulation 6 of Chapter IX refers to PSC on operational requirements with regard to
the International Safety Management (ISM) Code. Regulation 4 of Chapter XI
describes PSC on operational requirements.
The Convention contains the following chapters:
— Chapter I: General provisions
— Chapter II–1: Construction—Structure, subdivision and stability, machinery
and electrical installations
— Chapter II–2: Construction—Fire protection, fire detection and fire extinction
— Chapter III: Life-saving appliances and arrangements
— Chapter IV: Radiocommunications
— Chapter V: Safety of navigation
— Chapter VI: Carriage of cargoes
— Chapter VII: Carriage of dangerous goods
— Chapter VIII: Nuclear ships
— Chapter IX: Management for the safe operation of ships
— Chapter X: Safety measures for high-speed craft
— Chapter XI: Special measures to enhance maritime safety
— Chapter XII: Additional safety measures for bulk carriers
Following a diplomatic conference in London in December 2002, the IMO made a
number of far-reaching amendments to the SOLAS Convention to strengthen maritime
security. In order to assist the effective implementation of mandatory instruments to
prevent and suppress acts of terrorism against ships, three parts of SOLAS were
amended as follows:
(i)
(ii)
SOLAS Chapter V, Safety of navigation, was amended to provide a new
timetable for the fitting of Automatic Identification Systems (AIS). Ships of
between 300 gt and 50,000 gt, other than passenger ships and tankers, will be
required to fit AIS no later than the first safety equipment survey after July 1
2004 or by December 31 2004, whichever is the earlier. This accelerates the
previous compliance dates. For the smallest vessels, the timetable has been
brought forward by three years.
The existing Chapter XI, Special measures to enhance maritime safety, was
re-numbered Chapter XI-1 and amended. The new Chapter XI-1 requires
ships’ identification numbers to be permanently marked in a visible place on
either the ship’s hull or superstructure. The markings of passenger ships
should be on a horizontal surface visible from the air. All ships must be also be
marked with their numbers internally. The compliance date for existing ships
will be no later than the first scheduled dry-docking after July 1 2004. In
addition, from July 1 2004, vessels are to be issued with a Continuous Synopsis
Record (CSR) to provide an on-board record of the vessel’s history. The CSR
must be issued by the vessel’s flag administration. The information in the CSR
will include the vessel’s name, the flag State, the date of registry with that State,
95
4.8
4.8
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
(iii)
the port of registry, the vessel’s identification number and the name and
address of the registered owner. Any changes in this information are to be
recorded in the CSR in order to ensure that an up-to-date record and history of
the changes is maintained on board the vessel.
A new Chapter XI-2—Special measures to enhance maritime security—
enshrines the new International Ship and Port Facilities Security Code (ISPS
Code). The Code enters into force on July 1 2004 and applies to passenger
ships of any size, cargo ships and high speed cargo craft of 500 gt and upwards,
and mobile offshore drilling units. Part A of the Code is mandatory and
contains detailed requirements for ships, companies, port authorities, flag
administrations and governments. Part B of the Code is advisory and contains
guidelines on how to comply with Part A.
After the conference, MSC 76 instructed the FSI subcommittee to give preliminary
consideration to:
— review of the procedures for port State control (Resolution A.787(19) as
amended by Resolution A.882(21)) and, if found necessary, the development of
appropriate amendments thereto; and
— the need for, and if necessary the development of, any other guidance or
guidelines to ensure the global, uniform and consistent implementation of
Chapter XI-2 of SOLAS and Part A of the ISPS Code.
The subcommittee discussed developing guidelines to assist PSC authorities during
inspections relating to the new Code and concluded that there was a need to develop
such measures. In order to prepare the global guidelines before the entry-into-force date
for the new Chapter XI-2 and the ISPS Code on July 1 2004, the subcommittee invited
members to submit proposals to FSI 12 (which took place on March 15–19 2004).
Although the ISPS Code is not a current port State control provision, it represents a
significant new extension of control.
4.9
4C.1(i) The ISPS Code
The ISPS Code is designed to protect ports and international shipping against
terrorism. As a basis, the Code takes the approach that ensuring the security of ships and
port facilities is basically a risk management activity and a standardized, consistent
framework could evaluate risks and enable governments to offset changes in threat with
changes in vulnerability for ships and port facilities. In other words, the Code has been
developed using a risk management approach establishing how to identify, assess and
manage maritime security risks.
The objectives of the Code are:
— to establish an international framework involving co-operation between governments, government agencies, local administrations, and the shipping and port
industries to detect terrorist threats and take preventative measures to protect
ship and port facilities;
— to establish roles and responsibilities of governments, government agencies,
local administrations, and the shipping and port industries at both the national
and international levels to ensure maritime security;
— to ensure the early and efficient collection and exchange of security-related
information;
96
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.10
— to provide a methodology for security assessments through plans and procedures enabling rapid reaction to changing security levels; and
— to ensure confidence that adequate and proportional maritime security
measures are in place.
The risk management concept will be embodied in the Code through certain
requirements. For ships, these requirements will include:
— ship security plans;
— ship security officers;
— company security officers;
— certain onboard equipment.
For port facilities, the requirements will include:
— port facility security plans;
— port facility security officers;
— certain security equipment.
In addition, the requirements for ships and port facilities include:
— monitoring and controlling access;
— monitoring the activities of people and cargo;
— ensuring security communications are readily available.
REQUIREMENTS FOR COMPANIES AND SHIPS
Under the terms of the Code, shipping companies will be required to designate a
Company Security Officer (CSO) for the company and a Ship Security Officer (SSO) for
each of their ships. Depending on the number or type of ships it operates, a company
may designate several people as CSOs. However, in such a case the company has to
assign responsibility for a particular vessel to a particular person.
The CSO is responsible for ensuring that a Ship Security Assessment is properly
carried out, that Ship Security Plans (SSP) are prepared and submitted for approval by
or on behalf of the flag administration and that, once approved, the plan is placed on
board each ship.
The duties of an SSO include supervising the implementation of the SSP on board,
carrying out regular security inspections of the ship, liaising with the CSO and Port
Facility Security Officer as necessary, reporting security incidents, checking that the
vessel’s security equipment is functioning correctly, and ensuring that crew members are
adequately familiarized with shipboard security and their respective responsibilities.
The Code creates three security levels, 1, 2 and 3, which correspond to normal,
medium and high threat situations. The vessel’s flag administration organizes the
required level of operational security for the ship. During a vessel’s entry and stay in a
port of a contracting government, it must comply with the security level set by that
government. The SSP should indicate the operational and physical security measures
that should be taken by those on board to ensure that the vessel always operates at
security level 1. The plan should also indicate how a ship’s personnel could respond to
security level 2 and security level 3 situations.
By July 1 2004,7 owners are required to obtain an International Ship Security
Certificate (ISSC) issued by the flag administration for each ship indicating compliance
7. The US started a pre-enforcement programme for foreign vessels on January 1 2004. The corresponding
US law is the Maritime Transportation Act of 2002 (MTSA).
97
4.10
4.10
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
with the mandatory sections of the ISPS Code. Passenger ships, cargo ships over 500 gt
and mobile offshore units in international trade must carry an ISSC certificate by that
date. Failure to gain an ISSC means that the vessel cannot trade.
The ISSC indicates that the vessel complies with the requirements of SOLAS Chapter
XI-2 and the mandatory Part A of the ISPS Code. According to the provision in reg. 11
of Chapter XI-2, contracting governments can enter into bilateral or multilateral
agreements on alternative security arrangements in relation to ferry and other regular
services. However, these agreements are subject to regular review and vessels covered by
them are not permitted to undertake ship-to-ship operations with others that are outside
the agreement. Such agreements must also not compromise the security of other vessels
and port facilities that are not covered by them.
PORT FACILITY
4.11
Each contracting government has to complete a Port Facility Security Assessment for
each port facility within its territory that serves ships on international voyages. This
assessment is based on a risk analysis of all aspects of a port facility’s operation in order to
find out which parts of that port are most likely to be the subject of an attack. The
assessment will help to determine which port facilities are required to appoint a Port
Facility Security Officer and prepare a Port Facility Security Plan. The Port Facility
Security Plan must identify the physical and operational security measures that must be
taken to ensure that the facility always operates at security level 1. The plan should also
indicate the additional measures that are necessary to operate at security levels 2 and 3 if
and when required to do so. The contracting government will set the security level at a
port facility.
INFORMATION TO BE MADE AVAILABLE FROM PORT FACILITIES TO SHIPS AND
COMPANIES
4.12
Contracting governments shall make the following information available to companies and ships by July 1 2004:
(i)
(ii)
(iii)
(iv)
(v)
names and contact details of the national authority or authorities responsible
for ship and port facility security;
locations within their territory covered by the approved port facility security
plans;
names and contact details of personnel who have been designated to be
available at all times to receive and act upon the ship-to-shore security alerts;
names and contact details of personnel designated to be available at all times to
receive and act upon communications from contracting governments exercising control and compliance measures; and
names and contact details of personnel who have been designated to be
available at all times to provide advice or assistance to ships and to whom ships
can report any security concerns.
REQUIREMENTS FOR SHIPS ENTERING A PORT OF ANOTHER CONTRACTING
(PORT STATE CONTROL INSPECTIONS )
Under the provisions of reg. XI-2/9 of SOLAS 74, as amended, when a ship is at a port
or is proceeding to a port of a contracting government, that government has the right to
exercise various control and compliance measures with respect to that ship.
The ship is subject to port State control inspections, but such inspections will not
normally extend to examination of the SSP itself except in specific circumstances. If the
GOVERNMENT
4.13
98
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.14
contracting government exercising the control and compliance measures has reason to
believe that the security of the ship has, or the port facilities it has served have, been
compromised, then the ship may be subject to additional control measures. Section
A/9.8.1 of the ISPS Code indicates that, if the officers duly authorized by a contracting
government have clear grounds to believe that the ship is not in compliance with the
requirements of Chapter XI-2 or Part A of the ISPS Code, and the only means to verify
and rectify the non-compliance is to review the relevant requirements of the SSP, limited
access to the specific sections of the plan relating to non-compliance is exceptionally
allowed, but only with the consent of the contracting government of, or the master of,
the ship concerned. Nevertheless, the provisions in the plan relating to section A/9.4
subsections .2, .4, .5, .7, .15, .17 and .18 of the ISPS Code are considered as confidential
information, and cannot be subject to inspection unless otherwise agreed by the
contracting governments concerned.
With respect to ships flying the flag of a State which is not a contracting government to
the Convention and not a party to the 1988 SOLAS Protocol, contracting governments
should not give more favourable treatment to such ships. Accordingly, the requirements
of reg. XI-2/9 and the guidance provided in Part B of the Code should be applied to those
ships.
Ships below Convention size are subject to measures by which States maintain
security. Such measures should be taken with due regard to the requirements in Chapter
XI-2 and the guidance provided in Part B of the Code.
A contracting government may require ships intending to enter its ports to provide
information for the purposes of avoiding the need to impose control measures or other
actions that may lead to undue delays.
Regulation XI-2/9 describes the control and compliance measures applicable to ships
in Chapter XI-2. It is divided into three sections:
(i)
(ii)
(iii)
control of ships already in port;
control of ships intending to enter a port of another contracting government;
additional provisions applicable in both situations.
CONTROL OF SHIPS IN PORT
Every ship to which Chapter XI-2 applies is subject to control when in a port of
another contracting government by officers duly authorized by that government, who
may be the same as those carrying out the functions of reg. I/19.
Such control will be limited to verifying that the ship is carrying an ISSC or a valid
Interim International Ship Security Certificate issued under the provisions of Part A of
the ISPS Code. However, if the contracting government has reason to believe that the
security of the ship has, or the port facilities it has served have, been compromised, then
the ship may be subject to additional control measures. If there are clear grounds for
believing that the ship is not in compliance with the requirements of Chapter XI-2 or
Part A of the ISPS Code, or there is no valid certificate when required, the officers of the
contracting government shall impose one or more of the following control measures
upon the relevant ship:
—
—
—
—
inspection of the ship;
delaying the ship;
detention of the ship;
restriction of operations, including movement within the port; or
99
4.14
4.14
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
— expulsion of the ship from the port.
The control measures may additionally or alternatively include other, lesser,
administrative or corrective measures. The imposed control measures must be
proportionate, taking into account the guidance given in Part B of the ISPS Code.
In cases where the non-compliance leading to the ship’s detention consists of either a
defective item of equipment or faulty documentation, and the non-compliance cannot
be remedied in the port of inspection, the contracting government may allow the ship to
sail to another port, provided that any conditions agreed between the port States and the
administration or master are met.
SHIPS INTENDING TO ENTER A PORT OF ANOTHER CONTRACTING GOVERNMENT
4.15
A contracting government may require that ships intending to enter its ports provide
information to officers duly authorized by that government to ensure compliance with
Chapter XI-2 prior to entry into port, with the aim of avoiding the need to impose
control measures or to take steps as specified in reg. XI-2/9.
The information that a ship is required to provide is:
— evidence that the ship possesses a valid certificate and the name of its issuing
authority;
— the security level at which the ship is currently operating;
— the security level at which the ship has operated during the last 10 port calls;
— any additional measures taken by the ship in any previous port where a
ship-to-shore interface was conducted;
— evidence that appropriate ship security procedures were maintained during any
ship-to-ship activities; and
— other practical security-related information (but not the details of the SSP),
taking into account the guidance given in Part B of the ISPS Code.
If requested by the contracting government, the company owning the ship shall
provide confirmation, acceptable to that contracting government, of the information
required above. The master may decline to provide such information, on the
understanding that failure to do so may result in denial of entry into port.
If the officers duly authorized by the contracting government of the port which the
ship intends to enter have, on the basis of the information provided, clear grounds for
believing that the ship is in non-compliance with the requirements of Chapter XI-2 or
Part A of the ISPS Code, such officers shall attempt to establish communication with
and between the ship and the administration in order to rectify the non-compliance.
If such communication does not result in rectification, or if the officers have clear
grounds otherwise for believing that the ship is in non-compliance with the requirements
of Chapter XI-2 or Part A of the ISPS Code, such officers may take the following steps in
relation to that ship:
— require the rectification of the non-compliance;
— require that the ship proceed to a location specified in the territorial sea or
internal waters of that contracting government;
— inspect the ship, if the ship is in the territorial sea of the contracting government
of the port that the ship intends to enter; or
— deny entry into port.
Before taking any of these steps, the ship shall be informed by the contracting
100
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.16
government of its intentions. Upon receiving this information, the master may
reconsider his wish to enter that port. In such cases, this regulation shall not apply.
Again, any steps taken must be proportionate, taking into account the guidance
provided in Part B of the ISPS Code.
Regulation XI-2/9.2.1 lists the information contracting governments may require
from a ship as a condition of entry into port. One item of information listed is
confirmation of any special or additional measures taken by the ship during its last 10
calls at a port facility. Examples might include:
— records of the measures taken while visiting a port facility located in the territory
of a State which is not a contracting government, especially those measures that
would normally have been provided by port facilities located in the territories of
contracting governments; and
— any declarations of security that were entered into with port facilities or other
ships.
Another item of information listed that may be required as a condition of entry into
port is confirmation that appropriate ship security procedures were maintained during
ship-to-ship activity conducted within the period of the last 10 calls at a port facility. It
would not normally be necessary to include records of transfers of pilots or customs,
immigration, or security officials, nor bunkering, lightering, loading of supplies and
unloading of waste by the ship within port facilities, as these would normally fall within
the auspices of the Port Facility Security Plan. Examples of information that might be
given include:
— records of the measures taken while engaged in ship-to-ship activity with a ship
flying the flag of a State that is not a contracting government, especially those
measures that would normally have been provided by ships flying the flag of
contracting governments;
— records of the measures taken while engaged in ship-to-ship activity with a ship
that is flying the flag of a contracting government but is not required to comply
with the provisions of Chapter XI-2 and Part A of this Code, such as a copy of
any security certificate issued to that ship under other provisions; and
— in the event that persons or goods rescued at sea are on board, all known
information about such persons or goods, including their identities where
known and the results of any checks run on behalf of the ship to establish the
security status of those rescued.
It is not the intention of Chapter XI-2 or Part A of the Code to delay or prevent the
delivery of those in distress at sea to a place of safety.
Examples of other practical security-related information that may be required as a
condition of entry into port in order to assist in ensuring the safety and security of
persons, port facilities, ships and other property include:
—
—
—
—
—
—
information contained in the CSR;
the location of the ship at the time the report is made;
expected time of arrival of the ship in port;
the crew list;
a general description of cargo aboard the ship;
the passenger list; and
101
4.16
4.16
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
— information required to be carried under reg. XI-2/10.
ADDITIONAL PROVISIONS
4.17
In the event:
(i)
(ii)
of the imposition of a control measure, other than a lesser administrative or
corrective measure referred to in reg. XI-2/9, para. 1.3; or
that any of the above-mentioned steps are taken;
an officer duly authorized by the contracting government shall forthwith inform in
writing the administration, specifying which control measures have been imposed or
steps taken and the reasons therefor. The contracting government imposing the control
measures or steps shall also notify the recognized security organization that issued the
certificate relating to the ship concerned and the IMO when any such control measures
have been imposed or steps taken.
When entry into port is denied or the ship is expelled from port, the authorities of the
port State should communicate the appropriate facts to the authorities of the State of the
next appropriate ports of call, when known, and any other appropriate coastal States,
taking into account guidelines to be developed by the Organization. Confidentiality and
security of such notification shall be ensured.
Denial of entry into port, pursuant to reg. XI-2/9, paras. 2.4 and 2.5, or expulsion
from port, pursuant to reg. XI-2/9, paras. 1.1 to 1.3, shall be imposed only where the
officers duly authorized by the contracting government have clear grounds to believe
that the ship poses an immediate threat to the security or safety of persons, ships or other
property and that there are no other appropriate means for removing that threat.
The control measures or steps outlined above shall be imposed only until the
non-compliance giving rise to the control measures or steps has been corrected to the
satisfaction of the contracting government, taking into account actions proposed by the
ship or the administration, if any.
When contracting governments exercise control or take steps:
— all possible efforts shall be made to avoid a ship being unduly detained or
delayed. If a ship is thereby unduly detained, or delayed, it shall be entitled to
compensation for any loss or damage suffered; and
— necessary access to the ship shall not be prevented for emergency or
humanitarian reasons and for security purposes.
In all cases where a ship is denied entry or expelled from a port, all known facts should
be communicated to the authorities of relevant States. This communication should
consist of the following, where known:
— the name of the ship, its flag, the ship’s identification number, call sign, type and
cargo;
— the reason for denying it entry or expelling it from port or port areas;
— if relevant, the nature of any security non-compliance;
— if relevant, details of any attempts made to rectify any non-compliance,
including any conditions imposed on the ship for the voyage;
— past port(s) of call and next declared port of call;
— time of departure and likely estimated time of arrival at those ports;
— any instructions given to the ship, e.g. reporting en route;
— available information on the security level at which the ship is currently
operating;
102
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.18
— information regarding any communications the port State has had with the
administration;
— the contact point within the port State making the report, for the purposes of
obtaining further information;
— the crew list; and
— any other relevant information.
Relevant States to contact should include those along the ship’s intended passage to
its next port, particularly if the ship intends to enter the territorial sea of a coastal State.
Other relevant States could include previous ports of call, so that further information
may be obtained and security issues relating to previous ports resolved.
In exercising control and compliance measures, the duly authorized officers should
ensure that any measures or steps imposed are proportionate. Such measures or steps
should be reasonable and of the minimum severity and duration necessary to rectify or
mitigate the non-compliance.
The word “delay” in reg. XI-2/9.3.3.1 also refers to situations where, pursuant to
actions taken under this regulation, the ship is unduly denied entry into port or the ship is
unduly expelled from port.
“CLEAR GROUNDS ”
“Clear grounds” that the ship is not in compliance means evidence or reliable
information that the ship does not correspond with the requirements of Chapter XI-2 or
Part A of the ISPS Code, taking into account the guidance given in the Code. Such
evidence or reliable information may arise from a duly authorized officer’s observations
while verifying the ship’s ISSC or Interim Ship Security Certificate; but even if a valid
certificate is on board the ship, duly authorized officers may still have clear grounds for
believing that the ship is not in compliance based on their professional judgement.
Examples of possible clear grounds under regs. XI-2/9.1 and XI-2/9.2 may include,
when relevant:
— evidence from review of the certificate that it is not valid or that it has expired;
— evidence or reliable information that serious deficiencies exist in the security
equipment, documentation or arrangements required by Chapter XI-2 and Part
A of the Code;
— receipt of a report or complaint which, in the professional judgement of the duly
authorized officer, contains reliable information clearly indicating that the ship
does not comply with the requirements of Chapter XI-2 or Part A of the Code;
— evidence gathered or observations made by a duly authorized officer using
professional judgement that the master or ship’s personnel is not familiar with
essential shipboard security procedures or cannot carry out drills related to the
security of the ship, or that such procedures or drills have not been carried out;
— evidence gathered or observations made by a duly authorized officer using
professional judgement that key members of ship’s personnel are not able to
establish proper communication with any other key members of ship’s
personnel with regard to security responsibilities on board the ship;
— evidence or reliable information that the ship has embarked persons or loaded
stores or goods at a port facility or from another ship where either the port
facility or the other ship is in violation of Chapter XI-2 or Part A of the Code,
103
4.18
4.18
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
and the ship in question has not completed a declaration of security, nor taken
appropriate, special or additional security measures, or has not maintained
appropriate ship security procedures;
— evidence or reliable information that the ship has embarked persons or loaded
stores or goods at a port facility or from another source (e.g. another ship or a
helicopter) where either the port facility or the other source is not required to
comply with Chapter XI-2 or Part A of the Code, and the ship has not taken
appropriate, special or additional security measures or has not maintained
appropriate security procedures; and
— if the ship holds a subsequent, consecutively issued Interim Certificate as
described in section A/19.4 of the Code, and if, in the professional judgement of
an officer duly authorized, one of the purposes of the ship or a company in
requesting such a certificate is to avoid full compliance with Chapter XI-2 and
Part A of this Code beyond the period of the initial Interim Certificate as
described in section A/19.4.4.
4C.2 International Convention on Load Lines 1966 (LL 66)
4.19
The Convention is designed to establish uniform principles and rules regarding the
limits to which ships on international voyages may be loaded, having regard to the need
for safeguarding life and property at sea.
It applies to all ships engaged in international voyages, except: ships of war, new ships
of less than 24 m (79 feet) in length, existing ships of less than 150 gt, pleasure yachts not
engaged in trade, and fishing vessels. All the vessels to which the Convention applies
should proceed to sea on an international voyage after they have been surveyed, marked
and provided with an International Load Line or an Exemption Certificate. The ship is
marked with a load line on each side of its hull indicating the limit to which it may be
loaded when trading in various world zones.
Under Art. 21 of the Convention, ships holding a certificate issued under Art. 16 or 17
are subject, when in a port of another contracting government, to control by officers duly
authorized by such governments.
4C.3 International Convention for the Prevention of Pollution From Ships,
as modified by the Protocol of 1978 relating thereto (MARPOL 73/78)
4.20
MARPOL 73/78 covers all technical aspects of pollution from ships, except the
disposal of waste into the sea by dumping. It does not apply to pollution arising out of the
exploration and exploitation of sea-bed mineral resources.
The Convention applies to all tankers over 150 gt and all other vessels over 400 gt.
“Ship” includes hydrofoils, air-cushioned vehicles, submersibles, and fixed or floating
platforms, but the Convention excludes warships, naval auxiliaries, and governmentowned vessels on non-commercial service.
The Convention has two Protocols, dealing respectively with reports on incidents
involving harmful substances and arbitration. Technical measures are included in six
Annexes which deal respectively with the following:8
8. Annexes III, IV and V are optional, but governments ratifying the Convention must accept Annexes I and
II.
104
RELEVANT IMO CONVENTIONS AND ILO INSTRUMENTS
4.21
— Annex I: Prevention of pollution by oil, entered into force October 2 1983;
— Annex II: Control of pollution by noxious liquid substances, entered into force
April 6 1987;
— Annex III: Prevention of pollution by harmful substances carried by sea in
packaged form, entered into force July 1 1992;
— Annex IV: Prevention of pollution by sewage from ships, not yet in force;
— Annex V: Prevention of pollution by garbage from ships, entered into force
December 31 1988;
— Annex VI: Prevention of air pollution from ships, adopted in 1997 to enter into
force by tacit acceptance by December 31 2002.
Article 5 of MARPOL 73/78, inter alia, stipulates that a ship which is required to hold a
certificate is subject to inspection in a foreign port by duly authorized officers. In
principle, such inspection should be limited to verifying that there is a valid certificate on
board unless there are clear grounds for believing that the condition of the ship or its
equipment does not correspond substantially with the particulars of that certificate.
Article 6 deals with the detection of violations and enforcement of the Convention. It
allows for inspections to verify whether a ship has discharged any harmful substances in
violation of the Convention.
There are also four regulations in different Annexes authorizing parties to control
operational requirements. Regulation 8A of Annex I has regard to shipboard procedures
relating to the prevention of pollution by oil. Regulation 15 of Annex II addresses
procedures relating to the prevention of pollution by noxious liquid substances.
Regulation 8 of Annex III deals with procedures relating to the prevention of pollution
by harmful substances. Regulation 8 of Annex V concerns procedures relating to the
prevention of pollution by garbage.
4C.4 International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 1978)
The Convention establishes internationally accepted minimum standards of competence for crews. It has extensive certification and qualification requirements,
including syllabuses and sea time for senior officers in charge of watches in the deck,
engine and radio departments and for ratings forming part of the watch. All such
seafarers are required to have a certificate authorized in a uniform manner.
Basic principles to be observed in keeping deck and engine watches, and special
requirements for personnel on board oil, chemical and liquefied gas tankers are also
specified under the Convention.
The Convention applies to seafarers serving on board seagoing ships, except for those
serving on board warships, fishing vessels, pleasure yachts not engaged in trade, and
wooden ships of primitive build.
Under Art. X of the Convention, the PSCO is given the right to verify that all seafarers
serving on board who are required by the Convention to be certified hold the appropriate
certificates.
105
4.21
4.22
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
4C.5 International Convention on Tonnage Measurement of Ships 1969
(Tonnage 69)
4.22
This Convention establishes uniform principles and rules with respect to the
determination of tonnage of ships engaged in international voyages. The importance of
this Convention is that it determines which Conventions apply to a specific ship.
It applies to all ships engaged in international voyages, except ships of war and ships of
less than 24 m (79 feet) in length.
Provisions for confirmation of the Tonnage Certificate are stated under Art. 12. The
latest revised version of Resolution A.787(19),9 Procedures for port State control, added
guidelines for PSC under the Tonnage Convention to the procedures.
4D ILO INSTRUMENTS
4D.1 Convention No.147
4.23
If a port State exercises port State control based on ILO No.147, Merchant Shipping
(Minimum Standards) Convention 1976, guidance on the conduct of such control
inspections is given in ILO publication Inspection of Labour Conditions on Board Ship:
Guidelines for Procedure.
The Convention aims to establish basic minimum standards with regard to safety,
working and labour conditions, including the terms of agreement and association for
seafarers to be achieved through laws and legislation, inspection or, as appropriate,
collective agreements.
In terms of vessels, ILO 147 applies to seagoing ships, public or privately owned,
engaged in passenger or cargo trade, or any other commercial purpose, including
seagoing tugs. The Convention excludes sailing vessels and vessels engaged in fishing or
whaling. Oil rigs and drilling platforms are excluded when they are not engaged in
navigation. Whether small vessels are covered by the provisions is left to national
administrations in consultation with representative organizations of shipowners and
seafarers.
Actions that port States may take against vessels that are in breach of the minimum
standards of the Convention are set out in Art. 4.
4E PROCEDURES FOR PORT STATE CONTROL
(IMO GUIDELINES)
4.24
In the 1981 IMO Assembly, Resolution A.466(XII) on procedures for the control of
ships was adopted and since then a variety of resolutions relating to port State control
have become effective. The IMO’s FSI subcommittee reviewed and amalgamated
existing resolutions and documents on port State control. As a result of this study,
Resolution A.787(19) was adopted by the 19th Assembly of the IMO. The Resolution is
intended to provide basic guidance on the conduct of port State control procedures and
afford consistency in the conduct of such inspections, the recognition of deficiencies of a
9. Resolution A.882(21), Amendment to the procedure for port State control.
106
PROCEDURES FOR PORT STATE CONTROL
(IMO
GUIDELINES )
4.26
ship, its equipment, its crew and the application of control procedures. It is published as
a booklet with the title of Procedures for Port State Control.10
During FSI 6, in 1998, the first amendments to A.789(19) were proposed but could
not be finalized. At FSI 7, in 1999, the subcommittee considered several submissions
proposing amendments and comments on A.789(19) and established a working group
to review it and prepare a relevant draft Assembly resolution for submission to MSC 71
and MEPC 43 for approval, and the 21st Assembly for adoption. The proposed
amendments concerned the establishment of “clear grounds” for more detailed
inspections, accidental damage, reports on remedial action and additions to the list of
certificates and documents. It was also agreed to incorporate the Interim Guidelines for
PSC related to the ISM Code.11
MSC 71 considered the proposed amendments together with further proposals on the
matter. The draft Assembly resolution on Amendments to the procedures for port State
control (Resolution A.787(19)) was approved for submission to the 21st Assembly for
adoption. Consequently, the 21st Assembly, in November 1999, adopted Resolution
A.882(21) Amendments to the procedures for port State control (Resolution
A.787(19)).
Considering the latest developments in the shipping world following recent incidents
such as the Erika, the Castor and the Prestige, there is no doubt that IMO guidelines on
port State control will be amended in the future again.
The following information is based on Resolution A.787(19) as amended by
Resolution A.882(21).
4E.1 Provision for port State control
Regulation 19 of Chapter I, reg. 6.2 of Chapter IX and reg. 4 of Chapter XI of SOLAS
74; Art. 21 of Load Lines 66; Arts. 5 and 6, reg. 8A of Annex I, reg. 15 of Annex II, reg. 8
of Annex III and reg. 8 of Annex V of MARPOL 73/78; and Art. 12 of Tonnage 69
provide for control procedures to be followed by a party to a relevant Convention with
regard to foreign ships visiting their ports. The authorities of port States should make
effective use of these provisions for the purposes of identifying deficiencies, if any, in
such ships, which may render them substandard, and ensuring that remedial measures
are taken.
4.25
4E.2 Definitions
Clear grounds: Evidence that the ship, its equipment, or its crew does not correspond
substantially with the requirements of the relevant Conventions or that the master or
crew members are not familiar with essential shipboard procedures relating to the safety
of ships or the prevention of pollution.
Deficiency: A condition found not to be in compliance with the requirements of the
relevant Convention.
Detention: Intervention action taken by the port State when the condition of the ship or
its crew does not correspond substantially with the applicable Conventions, to ensure
that the ship will not sail until it can proceed to sea without presenting a danger to the
10. IMO, Procedures for Port State Control (2001).
11. Interim Guidelines For Port State Control Related To The ISM Code., MSC/Circ. 890, MEPC/Circ.354,
December 18 1998.
107
4.26
4.26
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
ship or persons on board, or without presenting an unreasonable threat of harm to the
marine environment, whether or not such action will affect the normal schedule of the
departure of the ship.
Inspection: A visit on board a ship to check both the validity of the relevant certificates
and other documents, and the overall condition of the ship, its equipment, and its crew.
More detailed inspection: An inspection conducted when there are clear grounds for
believing that the condition of the ship, its equipment, or its crew does not correspond
substantially with the particulars of the certificates.
Port State Control Officer (PSCO): A person duly authorized by the competent
authority of a Party to a relevant Convention to carry out port State control inspections,
and responsible exclusively to that party.
Recognized Organization: An organization which meets the relevant conditions set
forth by Resolution A.739(18), and has been delegated by the flag State administration
to provide the necessary statutory services and certification to ships entitled to fly its flag.
Stoppage of operation: Formal prohibition against a ship to continue an operation due
to an identified deficiency or deficiencies which, singly or together, render the
continuation of such operation hazardous.
Substandard ship: A ship whose hull, machinery, equipment, or operational safety is
substantially below the standards required by the relevant Convention, or whose crew is
not in conformance with the safe manning document.
Valid certificates: A certificate that has been issued directly by a party to a relevant
Convention, or on its behalf, by a recognized organization and contains accurate and
effective data; meets the provisions of the relevant Convention; and includes accurate
particulars of the ship, its crew and its equipment.
4E.3 Port State inspections
4E.3(i) General
4.27
In accordance with the provisions of the applicable Conventions, parties may conduct
inspections of foreign ships in their ports with PSCOs.
Such inspections may be undertaken on the basis of:
(i)
(ii)
(iii)
the initiative of the party;
the request of, or on the basis of, information regarding a ship provided by
another party; or
information regarding a ship provided by a member of crew, a professional
body, an association, a trade union or any other individual with an interest in
the safety of the ship, its crew and passengers, or the protection of the marine
environment.
Whereas parties may entrust surveys and inspections of ships entitled to fly their own flag
either to inspectors nominated for this purpose or to recognized organizations, they
should be made aware that under the applicable Conventions, foreign ships are subject
to port State control, including boarding, inspection, remedial action, and possible
detention, only by officers duly authorized by the port State. This authorization of these
PSCOs may be a general grant of authority or may be specific on a case-by-case basis.
All possible efforts shall be made to avoid a ship being unduly detained or delayed. If a
108
PROCEDURES FOR PORT STATE CONTROL
(IMO
GUIDELINES )
4.29
ship is unduly detained or delayed, it shall be entitled to compensation for any loss or
damage suffered.
4E.3(ii) Inspections
In pursuance of control procedures under the applicable Conventions, which, for
instance, may arise from information given to a port State regarding a ship, a PSCO may
proceed to the ship and before boarding gain, from its appearance in the water, an
impression of its standard of maintenance from such items as the condition of its
paintwork, corrosion or pitting, or unrepaired damage.
At the earliest possible opportunity, the PSCO should ascertain the year of build and
size of the ship for the purpose of determining which provisions of the Conventions are
applicable.
On boarding and introduction to the master or the responsible ship’s officer, the
PSCO should examine the vessel’s relevant certificates and documents, as listed in
Appendix 4. When examining 1969 International Tonnage Certificates, the PSCO
should be guided by Appendix 4A.12
If the certificates are valid and the PSCO’s general impression and visual observations
on board confirm a good standard of maintenance, the PSCO should generally confine
the inspection to reported or observed deficiencies, if any.
If, however, the PSCO from general impressions or observations on board has clear
grounds for believing that the ship, its equipment or crew do not substantially meet the
requirements, the PSCO should proceed to a more detailed inspection.
In pursuance of control procedures under Chapter IX of SOLAS 74 on the
International Management Code for the Safe Operation of Ships and for Pollution
Prevention (the ISM Code), the PSCO should utilize the guidelines for port State
control related to the ISM Code.
4E.3(iii) List of certificates and documents that, where relevant, should be
checked during the inspection
The certificates and documents that should be checked during the inspection are as
follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
International Tonnage Certificate (1969);
Passenger Ship Safety Certificate;
Cargo Ship Safety Construction Certificate;
Cargo Ship Safety Equipment Certificate;
Cargo Ship Safety Radio Certificate;
Exemption Certificate;
Cargo Ship Safety Certificate;
Document of Compliance (SOLAS 74 Regulation II-2/54)
Dangerous Goods Special List or Manifest, or Detailed Stowage Plan;
International Certificate of Fitness for the Carriage of Liquefied Gases in
Bulk; or the Certificate of Fitness for the Carriage of Liquefied Gases in
Bulk, whichever is appropriate;
12. Guidelines for port State control under the 1969 Tonnage Convention.
109
4.28
4.29
4.29
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
(xi) International Certificate of Fitness for the Carriage of Dangerous
Chemicals in Bulk; or the Certificate of Fitness for the Carriage of
Dangerous Chemicals in Bulk, whichever is appropriate;
(xii) International Oil Pollution Prevention Certificate;
(xiii) International Pollution Prevention Certificate for the Carriage of Noxious
Liquid Substances in Bulk;
(xiv) International Load Line Certificate (1966);
(xv) International Load Line Exemption Certificate;
(xvi) Oil Record Book Parts I and II;
(xvii) Shipboard Oil Pollution Emergency Plan;
(xviii) Cargo Record Book;
(xix) Minimum Safe Manning Document;
(xx) Certificates of Competency;
(xxi) Medical Certificates (see ILO Convention No.73);
(xxii) Stability information;
(xxiii) Safety Management Certificate and copy of Document of Compliance
(SOLAS Chapter IX);
(xxiv) Certificates as to the ship’s hull strength and machinery installations
issued by the classification society in question (only to be required if the
ship maintains its class with a classification society);
(xxv) Survey Report Files (in case of bulk carriers or oil tankers in accordance
with Resolution A.744(18));
(xxvi) For ro-ro passenger ships, information on the A/A max ratio;
(xxvii) Document of authorization for the carriage of grain;
(xxviii) Special Purpose Ship Safety Certificate;
(xxix) High-Speed Craft Safety Certificate and Permit to Operate High-Speed
Craft;
(xxx) Mobile Offshore Drilling Unit Safety Certificate;
(xxxi) For oil tankers, the record of oil discharge monitoring and control system
for the last ballast voyage;
(xxxii) The muster list, fire control plan, and damage control plan;
(xxxiii) Ship’s logbook with respect to the records of tests and drills and the log for
records of inspection and maintenance of lifesaving appliances and
arrangements;
(xxxiv) Procedures and Arrangements Manual (chemical tankers);
(xxxv) Cargo Securing Manual;
(xxxvi) Certificate of Registry or other document of nationality;
(xxxvii) Garbage Management Plan;
(xxxviii) Garbage Record Book;
(xxxix) Bulk carrier booklet (SOLAS Chapter VI, reg. 7); and
(xl) Reports of previous port State control inspections.
4.30
4E.3(iv) Clear grounds
Clear grounds to conduct a more detailed inspection include:
(i)
the absence of principal equipment or arrangements required by the
Conventions;
110
PROCEDURES FOR PORT STATE CONTROL
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(IMO
GUIDELINES )
4.32
evidence from a review of the ship’s certificates that a certificate or certificates
are clearly invalid;
evidence that documentation required by the Conventions and listed in
Appendix 4 is not on board, incomplete, is not maintained or is falsely
maintained;
evidence from the PSCO’s general impression and observations that serious
hull or structural deterioration or deficiencies exist that may place at risk the
structural, watertight or weathertight integrity of the ship;
evidence from the PSCO’s general impressions or observations that serious
deficiencies exist in the safety, pollution prevention, or navigational
equipment;
information or evidence that the master or crew is not familiar with essential
shipboard operations relating to the safety of ships or the prevention of
pollution, or that such operations have not been carried out;
indications that key crew members may not be able to communicate with each
other or with other persons on board;
the emission of false distress alerts not followed by proper cancellation
procedures;
receipt of a report or complaint containing information that a ship appears to
be substandard.
4E.4 More detailed inspection
4E.4(i) General
If the ship is does not carry valid certificates, or if the PSCO, from general impressions
or observations on board, has clear grounds for believing that the condition of the ship or
its equipment does not correspond substantially with the particulars of the certificates,
or that the master or crew is not familiar with essential shipboard procedures, a more
detailed inspection should be carried out.
It is not envisaged that all equipment and procedures outlined in Resolution
A.882(21) would be checked under more detailed inspections during a single port State
control inspection, unless the condition of the ship, or the unfamiliarity of the master or
crew with essential shipboard procedures, necessitated such a detailed inspection. The
stated guidelines for structural and equipment requirements are not intended to impose
the seafarer certification programme of the port State on a ship entitled to fly the flag of
another party to STCW 78, or to impose control procedures on foreign ships in excess of
those imposed on ships of the port State.
4.31
4E.4(ii) Clear grounds
When a PSCO inspects a foreign ship which is required to hold a Convention
certificate, and which is in a port or off an offshore terminal under the jurisdiction of that
State, any such inspection shall be limited first to verifying that there are on board valid
certificates and other relevant documentation and, second, to the PSCO forming an
impression of the overall condition of the ship, its equipment and its crew, unless there
are clear grounds for believing that the condition of the ship or its equipment does not
correspond substantially with the particulars of the certificates.
111
4.32
4.33
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
4E.5 Port State control officers (PSCOs)
4E.5(i) Professional profile
4.33
Port State control should be carried out only by qualified PSCOs.
When the required professional expertise cannot be provided by the PSCO, the PSCO
may be assisted by any person with the required expertise acceptable to the port State.
The PSCOs and the persons assisting them should have no commercial interest, either in
the port of inspection, or in the ships inspected, nor should PSCOs be employed by, or
undertake work on behalf of, recognized organizations. The latter requirement means
that PSCOs should not be involved in the work of any classification society.
A PSCO should carry a personal document in the form of an identity card issued by
the port State and indicating that the PSCO is authorized to carry out the control.
4.34
The PSCO should be an experienced officer qualified as flag State surveyor.
The PSCO should be able to communicate in English with key crew members.
Training should be provided for PSCOs to give the necessary knowledge of the
provisions of the applicable Conventions that are relevant to the conduct of port State
control, taking into account the latest IMO model courses for port State control.
In specifying the qualifications and training requirements for PSCOs, the administration should take into account, as appropriate, which of the internationally agreed
instruments are relevant to the control of the port State and the variety of types of ship
that may enter its ports.
A PSCO carrying out inspections of operational requirements should be qualified as a
master or chief engineer and have appropriate seagoing experience, or have qualifications from an institution recognized by the administration in a marine-related field
and have specialized training to ensure adequate competence and skill, or be a qualified
officer of the administration with an equivalent level of experience and training, for
performing inspections of the relevant operational requirements.
Periodical seminars for PSCOs should be held in order to update their knowledge with
respect to instruments related to port State control.
4E.5(ii) Qualification and training requirements
4E.5(iii) General procedural guidelines for PSCOs
4.35
The PSCO should use professional judgement in carrying out all duties, and consider
consulting others as deemed appropriate.
When boarding a ship, the PSCO should present to the master or to the representative
of the owner, if requested to do so, the PSCO identity card. This card should be accepted
as documented evidence that the PSCO in question is duly authorized by the
administration to carry out port State control inspections.
If the PSCO has clear grounds for carrying out a more detailed inspection, the master
should be immediately informed of these grounds and advised that, if so desired, the
master may contact the administration or, as appropriate, the recognized organization
responsible for issuing the certificate, and invite their presence on board.
In cases where an inspection is initiated based on a report or complaint, especially if it
is from a crew member, the source of the information should not be disclosed.
112
PROCEDURES FOR PORT STATE CONTROL
(IMO
GUIDELINES )
4.37
When exercising control, all possible efforts should be made to avoid a ship being
unduly detained or delayed. It should be borne in mind that the main purpose of port
State control is to prevent a ship proceeding to sea if it is unsafe or presents an
unreasonable threat of harm to the marine environment. The PSCO should exercise
professional judgement to determine whether to detain a ship until the deficiencies are
corrected, or to allow it to sail with certain deficiencies, having regard to the particular
circumstances of the intended voyage.
It should be recognized that all equipment is subject to failure and spares or
replacement parts may not be readily available. In such cases, undue delay should not be
caused if, in the opinion of the PSCO, safe alternative arrangements have been made.
Where the grounds for detention are the result of accident damage suffered on the
ship’s voyage to a port, no detention order should be issued, provided that:
(i)
(ii)
(iii)
(iv)
4.36
due account has been given to the Convention requirements regarding
notification to the flag State administration, the nominated surveyor or the
recognized organization responsible for issuing the relevant certificate;
prior to entering a port, the master or company has submitted to the port State
authority details of the circumstances of the accident and the damage suffered
and information about the required notification of the flag State
administration;
appropriate remedial action, to the satisfaction of the port State authority, is
being taken by the ship; and
the port State authority has ensured, having been notified of the completion of
the remedial action, that deficiencies which were clearly hazardous to safety,
health or the environment have been rectified.
Since detention of a ship is a serious matter involving many issues, it may be in the best
interests of the PSCO to act with other interested parties. For example, the officer may
request the owner’s representatives to provide proposals for correcting the situation.
The PSCO may also consider co-operating with the flag State administration’s
representatives or a recognized organization responsible for issuing the relevant
certificates, and consulting them regarding their acceptance of the owner’s proposals
and their possible additional requirements. Without limiting the PSCO’s discretion in
any way, the involvement of other parties could result in a safer ship, avoid subsequent
arguments relating to the circumstances of the detention, and prove advantageous in the
case of litigation involving “undue delay”.
Where deficiencies cannot be remedied at the port of inspection, the PSCO may allow
the ship to proceed to another port, subject to any appropriate conditions determined. In
such circumstances, the PSCO should ensure that the competent authority of the next
port of call and the flag State are notified.
Detention reports to the flag State should be in sufficient detail for an assessment to be
made of the severity of the deficiencies giving rise to the detention.
The company or its representative have a right of appeal against a detention taken by
the authority of a port State. The appeal should not cause the detention to be suspended.
The PSCO should inform the master of the right of appeal.
To ensure consistent enforcement of port State control requirements, PSCOs should
carry an extract of the General Procedural Guidelines for PSCOs for ready reference
when carrying out any port State control inspections.
During its 9th session, February 19–23 2001, the FSI subcommittee agreed sample
113
4.37
4.37
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
forms for PSCOs to use when notifying detention and release of ships and which should
supplement the port State control procedures set out in Resolution A.787(19) as
amended.
The subcommittee invited port States to try to notify flag States of the detention of one
of their ships in the most timely and expedient manner possible. The port State should
make full use of modern communications facilities, e.g. fax, e-mail, etc., and should also
notify detentions to the relevant recognized organization. The subcommittee agreed
that all forms of PSCO training should explicitly address the requirement for reporting
detentions to the flag State and the relevant recognized organization. The individual
port States and regional agreements on port State control should ensure that explicit
requirements and procedures for the notification of flag States and the recognized
organizations in the event of a detention are included in their instructions for PSCOs,
i.e. in checklists, guidelines and/or manuals for surveyors.
The subcommittee discussed mechanisms for constructive and timely dialogue
between flag States and port States on port State control intervention. The aim is to
improve the communication between the port States and flag States, especially when the
flag State seeks additional information or clarifications regarding detention. Despite the
fact that the majority of detentions were not questioned, the subcommittee felt that it
was important that some sort of a review procedure should be available between the flag
State and the port State. The subcommittee also agreed that there should be a clear
differentiation between a judicial appeal by the owner of a detained vessel and a purely
administrative appeal/review from the flag State, which could take a form of a simple
letter of enquiry in the first instance. The port State should make best efforts to provide
further information for the appeal/review, if requested by the flag State. It was
recommended by the subcommittee that the forwarding of a notification should be
made as soon as is feasible and preferably within 24 hours.
The subcommittee also agreed to draft an MSC/MEPC circular on measures to
improve port State control procedures that would note the subcommittee’s recommendations that the whole concept of port State control of ships would be
significantly improved by:
(i)
(ii)
greater endeavours by port States to notify flag States of any detentions made
by the former in the most timely and expedient manner possible, making to this
effect full use of modern communication facilities, i.e. fax, e-mail, etc.; and
establishing a mechanism for a constructive and timely dialogue between flag
States and port States on port State control interventions through improved
channels of communications between port States and flag States, particularly
in cases where flag States are seeking additional information or clarifications
regarding detentions.
The draft MSC/MEPC13 circular on Measures to improve port State control procedures
was approved by the MEPC during its 46th session, April 23–27 2001, and by the MSC
at its 74th session in May–June 2001.
4.38
4E.5(iv) Identification of substandard ship
In general, a ship is regarded as substandard if its hull, machinery, equipment or
operational safety is substantially below the standards required by the relevant
13. MSC/Circ.1011, MEPC/Circ.383, Measures to improve port State control Procedures, June 26 2001
114
PROCEDURES FOR PORT STATE CONTROL
(IMO
GUIDELINES )
4.40
Conventions or whose crew is not in conformance with the safe manning document,
owing to, inter alia:
(i)
(ii)
(iii)
(iv)
(v)
the absence of important equipment or arrangements required by the
Conventions;
non-compliance of equipment or arrangements with relevant specifications of
the Conventions;
substantial deterioration of the ship or its equipment because of, for example,
poor maintenance;
insufficient operational proficiency, or unfamiliarity with essential operational
procedures, on the part of the crew; and
insufficient manning or insufficient certification of seafarers.
If these evident factors as a whole, or individually, make the ship unseaworthy and put at
risk the ship or the life of persons on board, or would present an unreasonable threat of
harm to the marine environment if it were allowed to proceed to sea, it should be
regarded as a substandard ship.
4E.5(v) Suspension of inspection
In exceptional circumstances, where, as a result of a more detailed inspection, the
overall condition of a ship and its equipment, also taking into account the crew
conditions, are found to be obviously substandard, the PSCO may suspend an
inspection.
Prior to suspending an inspection, the PSCO should have recorded detainable
deficiencies in the areas set out in Appendix I, as appropriate.
The suspension of the inspection may continue until the responsible parties have
taken the steps necessary to ensure that the ship complies with the requirements of the
relevant instruments.
In cases where the ship is detained and an inspection is suspended, the port State
Authority should notify the responsible parties without delay. The notification should
include information about the detention and state that the inspection is suspended until
that authority has been informed that the ship complies with all relevant requirements.
4.39
4E.5(vi) Guidelines for the detention of ships
When deciding whether the deficiencies found in a ship are sufficiently serious to
merit detention, the PSCO should assess whether:
— the ship has relevant valid documents;
— the ship has the crew required in the Minimum Safe Manning Document.
During inspection, the PSCO should further assess whether the ship and/or crew,
throughout its forthcoming voyage, is able to:
— navigate safely;
— safely handle, carry and monitor the condition of the cargo;
— operate the engine room safely;
115
4.40
4.40
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
—
—
—
—
—
—
—
—
4.41
maintain proper propulsion and steering;
fight fires effectively in any part of the ship if necessary;
abandon ship speedily and safely and effect rescue if necessary;
prevent pollution of the environment;
maintain adequate stability;
maintain adequate watertight integrity;
communicate in distress situations if necessary; and
provide safe and healthy conditions on board.
If the result of these assessments is negative, taking into account all deficiencies found,
the ship should be strongly considered for detention. A combination of deficiencies of a
less serious nature may also warrant the detention of the ship.
The lack of valid certificates as required by the relevant instruments may warrant the
detention of ships. However, ships flying the flag of States not party to a Convention or
not having implemented another relevant instrument are not entitled to carry the
certificates provided for by the Convention or other relevant instrument. Therefore,
absence of the required certificates should not by itself constitute a reason to detain these
ships. However, in applying the “no more favourable treatment” clause, substantial
compliance with the provisions and criteria specified in Resolution A.882(21) must be
required before the ship sails.
A list of deficiencies, grouped under relevant Conventions and/or Codes, has been
provided under Resolution A.882(21). This list is not considered exhaustive but is
intended to give examples of relevant items.
4F DEVELOPMENTS IN PORT STATE CONTROL
4F.1 Measures to improve port State control procedures
4.42
MSC 74 and MEPC 46 considered a number of recommendations made by the FSI
subcommittee to improve port State control procedures.
The committees agreed with the recommendations of the FSI subcommittee that the
whole concept of port State control of ships will be significantly improved by:14
(i)
(ii)
greater endeavours made by port States to notify flag States of any detentions
and release of the latter’s ships, using the sample form for notification of
detention of ship and the sample form for notification of release of ship, in the
most timely and expedient manner possible, making, to this effect, full use of
modern communication facilities; and
establishing a mechanism for a constructive and timely dialogue between flag
States and port States on port State control interventions through improved
channels of communication between port States and flag States, particularly in
cases where flag States are seeking additional information or clarifications
regarding detentions.
It has been emphasized by the committees that, in the context of port State control
activities, the mechanism is not, and should not be allowed to become, a profit-making
enterprise.
14. MSC/Circ.1011, MEPC/Circ.383, June 26 2001.
116
DEVELOPMENTS IN PORT STATE CONTROL
4.45
4F.2 Guidelines for ISPS Code
Following the 2002 Diplomatic Conference on Maritime Security that adopted the
ISPS Code in December 2002, MSC 76 instructed the FSI subcommittee to give
preliminary consideration to:
4.43
— review of the procedures for port State control (Resolution A.787(19) as
amended by Resolution A.882(21)) and, if found necessary, the development of
appropriate amendments thereto; and
— the need for, and if necessary the development of, any other guidance or
guidelines to ensure the global, uniform and consistent implementation of the
provisions of SOLAS Chapter XI-2 or Part A of the ISPS Code.
The subcommittee discussed developing guidelines to assist PSC authorities during
inspections relating to the ISPS Code and concluded that there was a need to develop
such guidelines. In order to prepare the global guidelines before the entry-into-force
date for the new SOLAS Chapter XI-2 and the ISPS Code—July 1 2004—the
subcommittee invited members to submit proposals to FSI 12 (March 15–19 2004).
4F.3 Marking of IMO number on ship’s hull
During FSI 1O15 the subcommittee discussed a proposal for mandatory permanent
marking of a ship’s IMO identification number on the ship’s side and on one of the main
bulkheads in the machinery space in order to enhance ship identification and to prevent
the vessels’ being used as “phantom” ships. FSI 1116 agreed on the benefits for maritime
safety and security purposes of marking ships’ plans, manuals and other documents with
the IMO ship identification number and requested the MSC to put this subject on the
FSI sub-committee’s work programme, with a target completion date of 2005, and in
the provisional agenda for FSI 12.
4.44
4F.4 Unique IDs for shipowning and ship management companies
The FSI 1117 subcommittee agreed on the benefits of developing unique IDs for
companies and registered owners (similar to the IMO numbering scheme for ships) for
maritime safety and security purposes, and recommended to MSC 77 that a
high-priority item on “Unique IDs for companies and registered owners” be included in
the subcommittee’s work programme, with a target completion date of 2005, and in the
provisional agenda for FSI 12.
The proposed IMO company number would be issued by Lloyd’s Register-Fairplay
(LRF) free of charge using the same “electronic form” method as for the IMO ship
identification number, and be made available through current data services to maritime
authorities and the relevant authorities of regional PSC agreements.
15. Subcommittee on Flag State Implementation, 10th session: April 8–12 2002.
16. Subcommittee on Flag State Implementation, 11th session: April 7–11 2003.
17. Subcommittee on Flag State Implementation, 11th session: April 7–11 2003.
117
4.45
4.46
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
4F.5 Reporting procedures on port State control detentions and analysis and
evaluation of reports
4.46
Starting with FSI 7, the subcommittee reviewed the format of the statistics on port
State control prepared by the Secretariat and identified the following issues that had still
not been properly addressed:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
4.47
development of a common coding system for deficiencies (in co-operation with
the contact group established by the Workshop for PSC Agreement Secretaries
and Directors of Information Centres, which was conducting a review analysis
of the current coding systems in use and seeking possible development of a
common coding system);
the data provided for statistical purposes should be in raw form and the task of
defining how these data should be used in the future was deferred to a
correspondence group to be established by FSI 9. Input from qualified
statisticians would be advisable as the origins of the data were very disparate
and as a result it would be extremely difficult to obtain uniform statistical
analysis;
resumption of the production of PSC statistics and collation of PSC data by the
Secretariat;
further consideration on the use of the data provided and subsequent
development of statistical analysis;
analysis of the annual reports of PSC regimes; and
harmonization of PSC procedures.
FSI 11 discussed the need for collation of PSC data and in-depth analysis of the
annual reports of regional PSC agreements by taking into account the possible future
involvement of PSC data, together with casualty-related data, in the IMO’s voluntary
Model Audit Scheme. The subcommittee recognized that harmonized PSC practices
and enhanced consistency of data would ultimately allow the preparation of global
statistics based on the valuable data collected through PSC activities. It has also been
recognized that such data could be developed as a tool for the conduct of worldwide
analyses and identification of trends. The Subcommittee invited port States and PSC
regimes to continue providing information on a regular basis to the Secretariat on the
total number of inspections conducted per flag per year, and on detentions, including
information on the classification societies involved in ship detentions.
After considering the information contained in the list of contact points nominated by
flag States exclusively for the notification of port State control detentions prepared by
the Secretariat and released on the IMO website, the subcommittee noted that only 13
countries had provided the relevant details. The Secretariat has been instructed to
include information on the “Head Office Ships Inspection” contact details in the list and
member States have been encouraged to provide information on contact points
nominated exclusively for the receipt of PSC detention notifications, with the associated
e-mail addresses.
4F.6 Review/appeal procedure
4.48
Following the detention of a tanker for an undue period due to a leak from its cargo
tank, repeated appeals were made against the port State’s actions, but no response was
118
DEVELOPMENTS IN PORT STATE CONTROL
4.50
given. A submission was made to the FSI subcommittee to look again at the procedure
for review/appeal by the flag State on port State control intervention. The relevant port
State voluntarily informed the subcommittee that the incident had occurred in its port,
and in order to be transparent in any matter or incident concerning PSC interventions
affecting another flag State’s interest but without revealing the identity of private parties
involved, stated that the deficiency—a crack in the hull of a laden tanker, with a
leak—was sufficiently serious to justify the detention of the vessel and consequent PSC
action, in accordance with the IMO Resolution A.787(19), as amended by Resolution
A.882(21) and regional Memoranda of Understanding (MOU).
Following lengthy discussions, the subcommittee agreed that it was not the proper
forum to discuss this particular incident, but recommended that a proper line of
communication and co-operation should be maintained between the port State and flag
State when a ship is detained following a PSC inspection. For this particular incident, it
was suggested that the report on the incident from the Paris MOU Review Panel should
be brought to the IMO.
4F.7 Guidelines for inspection of ships’ anti-fouling systems under the 2001
AFS Convention
Considering the value of providing PSCOs and administrations with examples of
sampling and analysis methodologies, the subcommittee agreed to develop draft
guidelines for inspection of ships’ anti-fouling systems as a new appendix to the existing
guidance for PSC (Resolution A.787(19), as amended by Resolution A.882(21)), and to
consider amending the current text on procedures for port State control.
The FSI 11 subcommittee recognized the fact that the AFS Convention still had to
enter into force, and therefore it could be misleading to include the guidelines for
inspection of ships’ anti-fouling systems as an appendix to present port State guidelines.
Therefore, FSI 11 agreed:
4.49
— to the draft MEPC resolution on guidelines for inspections of ships’ anti-fouling
systems for submission to MEPC 49; and
— to the draft amendments to Resolution A.787(19), as amended by Resolution
A.882(21), for submission to MEPC 49, with the understanding that the
MEPC approve these at a future session, when the AFS Convention has entered
into force, for submission to the Assembly for adoption.
During MEPC 49, the committee adopted the guidelines for inspection of antifouling systems on ships by Resolution MEPC. 105(49), with the understanding that,
once the AFS Convention had entered into force, the Guidelines could form a new
appendix to Resolution A.787(19) as amended by Resolution A.882(21) on Procedures
for port State control, pending decision by the MEPC. The committee decided to put in
abeyance the review and approval of the draft amendments to Resolution A.787(19), as
amended by Resolution A.882(21), contained in Annex 7 of FSI 11/23 until the AFS
Convention had entered into force.
4F.8 PSC officer training for bulk carriers
Port States and the various PSC MOU States are recommended to develop
specialized training for PSCOs in bulk-carrier design and operation, pinpointing the
119
4.50
4.50
INTRODUCTION TO PORT STATE CONTROL AND IMO GUIDELINES
vulnerable areas within the structure, in particular of older ships. FSI 11 deferred
consideration of this matter to FSI 12.
4F.9 Ship recycling—related matters
4.51
FSI 11 was requested by the MEPC to provide input to the relevant parts of the draft
IMO guidelines on ship recycling and advice on possible procedures and requirements
for de-registration of ships before recycling, in particular concerning the port-Staterelated aspects of the draft Guidelines.18
4F.10 Work programme and agenda for FSI 12
4.52
An item on “PSC on seafarers’ working hours” is included in the agenda for FSI 12.
18. In the draft Guidelines the following parts were related to port State control:
“5.2 Port State
The port State functions also in respect of recycling of ships as a supplement to flag State control, when
it executes port State control.
5.2.1 Establishment of port State control routines for ships destined for recycling
The only port State in a position to control issues related to a ship destined for recycling is that of the
final place of arrival for an operational vessel i.e. the port where the recycling operation is to take place or
the port where a vessel, because of the measures taken to prepare it for recycling, is rendered
non-operational and is intended to be towed to the recycling yard.
Ships destined for recycling would still be subject to current port State control procedures, as any other
ship, in accordance with applicable international regulations.
Co-ordination between the port State and the flag State is encouraged to ensure the ship meets all
relevant IMO requirements, and any other applicable requirements.
5.2.2 Implementation
Port States should:
— encourage the widespread use of IMO guidelines within the industry;
— co-operate with flag States and recycling States to facilitate implementation of the guidelines.”
120
CHAPTER 5
Regional Port State Control Agreements
5A THE PARIS MEMORANDUM OF UNDERSTANDING ON
PORT STATE CONTROL 1982 (PARIS MOU)
5A.1 Introduction
Internationally, the control of foreign merchant ships by port States has been a feature
of international maritime Conventions since the 1929 SOLAS Convention. However
the coordinated application of port State control is a relatively recent development. It
was recognized by the drafters of SOLAS that a flag State could not constantly monitor
every ship in its fleet wherever it sails in the world. Therefore, port States were given
power to inspect a vessel’s documentation. If there were clear grounds for suspecting
that the condition of the ship did not meet Convention standards, then an inspection of
the ship could be carried out.
The origins of port State control lie in the Memorandum of Understanding between
eight North Sea States signed in The Hague in 1978. The background of this
Memorandum is that in 1976 a maritime session of the International Labour
Conference adopted the Merchant Shipping (Minimum Standards) Convention, more
commonly known as ILO Convention No.147. This Convention aimed to inspect
vessels that entered the ports of member States. In other words, port States could watch
over and inspect the living and working conditions on board all ships that entered their
ports. Eight European countries decided that this Convention deserved a proper
follow-up. On March 2 1978 the Hague Memorandum was signed by the maritime
authorities of those eight countries, which were Belgium, Denmark, France, West
Germany, The Netherlands, Norway, Sweden and the UK. The Memorandum aimed
at general surveillance of seagoing ships in order to ensure that requirements stated
under the ILO Convention No.147, as well as in other Conventions, were met.
Just as the Hague Memorandum was about to come into effect, in March 1978 the
Amoco Cadiz incident happened and provoked a strong political and public outcry in
Europe for far more stringent regulations with regard to the safety of shipping. As a
consequence of this incident, it was assumed that some flag States were negligent in
respect of exercising proper control over their ships. Therefore it was considered
necessary to upgrade the Hague Memorandum. Apart from working and living
conditions, the new Memorandum would have to cover maritime safety and pollution
prevention.
Following these developments, the ministers responsible for maritime safety of 13
European countries, together with representatives of the Commission of the European
Communities, the IMO and the ILO, met in Paris in December 1980. They agreed that
121
5.1
5.2
5.2
5.3
REGIONAL PORT STATE CONTROL AGREEMENTS
the elimination of substandard shipping would be best achieved by coordination of port
States and based on the provisions of a number of widely accepted international
maritime Conventions, the so-called “relevant instruments”. At a second ministerial
conference, again in Paris, in January 1982, the present Paris Memorandum of
Understanding on Port State Control was adopted and signed by the maritime
authorities of 14 states. The Paris MOU has been in operation since July 1982, when it
took the place of the Hague Memorandum, which had been effective from July 1978,
with more or less the same objectives.
With this Memorandum, for the first time, regular and systematic control of ships was
exercised by a regional group of port States that were parties to the relevant
Conventions. The MOU was initially signed by 14 European countries. The original
group of Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, The
Netherlands, Norway, Portugal, Spain, Sweden and the UK were joined later by
Poland,1 Canada,2 and the Russian Federation3 in 1995; Croatia4 in 1996; and Iceland5
in 2000. The latest State to join the MOU was Slovenia, whose membership took effect
on July 22 2003.
The Paris MOU consists of 20 participating maritime administrations and covers the
waters of European coastal States and the North Atlantic basin from North America to
Europe. It aims to eliminate the operation of substandard ships through a harmonized
system of port State control. Annually, over 18,000 inspections take place on board
foreign ships in Paris MOU ports. These inspections aim to make sure that ships meet
international safety and environmental standards, and that crew members have
adequate living and working conditions.
The Paris MOU has no official status within the IMO. However, this regional
agreement on port State control has certainly had an impact on international
rule-making in the Organization.
As its name already suggests, an MOU is not an international Convention. Why was
there a preference for an MOU rather than a Convention, which from an international
juridical point of view is a more powerful instrument? During the preparation of the
Memorandum, all countries involved showed a distinct political will to see the practical
results of their study. It was realized that Conventions usually require lengthy
ratification procedures and similar problems are faced when Conventions need to be
amended. Therefore, an MOU was established instead of a Convention.
EC Directive 95/21/EC on port State control came into force on July 1 1996 and made
port State control mandatory in States that are members of the European Union. In
1996, the Paris Port State Control Committee completed the necessary amendments in
order to bring the Paris MOU in line with the Directive. An advisory board has also been
established in order to coordinate the legal relationship between the Directive and the
Paris MOU.
1. The maritime authority of Poland acceded to the Memorandum on November 27 1991; for the maritime
authority of Poland the Memorandum took effect on January 1 1992.
2. The maritime authority of Canada acceded to the Memorandum on May 3 1994; for the maritime
authority of Canada the Memorandum took effect on May 3 1994.
3. The maritime authority of the Russian Federation acceded to the Memorandum on November 10 1995;
for the Maritime authority of the Russian Federation the Memorandum took effect on January 1 1996.
4. The maritime authority of Croatia acceded to the Memorandum on November 8 1996; for the maritime
authority of Croatia the Memorandum took effect on January 1 1997.
5. The maritime authority of Iceland acceded to the Memorandum on May 11 2000, for the maritime
authority of Iceland the Memorandum took effect on July 1 2000.
122
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.5
5A.2 Observer status
The Port State Control Committee has adopted provisional criteria for granting
co-operating or observer status to non-member States and newly developed PSC
regions. Specific criteria, including self-evaluation exercises, have to be met before
co-operating status can be granted. If an authority is a member of another regional
agreement, or located in the region of another regional agreement, or located outside the
regional scope of the Paris MOU, it is not eligible for co-operating status. Regional
agreements seeking observer status should demonstrate that their member authorities
have an acceptable overall flag State record and have a similar approach in terms of
commitment and goals to that of the Paris MOU.
5.4
5A.3 Basic principles
The intention of port State control is not to enforce on foreign merchant shipping any
requirement which goes beyond Convention requirements. In other words, the Paris
MOU does not extend the scope of port State control beyond what has been agreed in
international Conventions.
Port State control is not a new concept. It was stated in many international maritime
Conventions. However, the international Conventions do not explicitly impose on
contracting governments the obligation of port State control, but leave this to the
discretion of contracting governments. By participating in the Paris Memorandum, the
member States commit themselves to specified enforcement efforts regarding port State
control:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
The primary responsibility for compliance with the provisions of the relevant
instruments lies with shipowner/operator. The responsibility for ensuring such
compliance remains with the flag State.
Each maritime authority gives effect to the provisions of the Paris
Memorandum.
Each authority has to ensure that foreign merchant ships visiting its ports
comply with the standards laid down in the relevant Conventions and all
amendments thereto in force. In this context, a participating maritime
authority regards a ship flying the flag of another member State as a foreign ship
too.
The member States have agreed to inspect 25 per cent of the estimated number
of individual foreign merchant ships that enter their ports during a 12-month
period. In practice, this will result in an inspection density equivalent to
approximately 90 per cent of all ships using ports in the region.6
IMO and ILO Conventions provide the basis for inspections under the Paris
MOU.
In general, ships will be inspected within six months of a previous inspection in
an MOU port, unless there are clear grounds for inspection. This frequency of
inspection does not apply to ships selected for mandatory inspection or
expanded mandatory inspection. These vessels may be inspected whenever the
authorities deem it appropriate.
6. Huibers, H.E., “Development on Port State Control”, 6th Congress of the European Harbour Masters’
Association, June 17–22 1996, Reykjavik, Iceland.
123
5.5
5.5
REGIONAL PORT STATE CONTROL AGREEMENTS
(vii)
(viii)
(ix)
(x)
All possible efforts are to be made to avoid unduly detaining or delaying a ship.
In principle, there will be no discrimination as to flag.
Inspections are generally unannounced.
Each authority will consult, co-operate and exchange information with the
other authorities in order to further the aims of the Paris MOU.
5A.4 Amendments to Paris MOU
5.6
The Paris Memorandum has been amended several times to accommodate new safety
and marine environment requirements arising from the IMO and other important
developments, such as various EU Directives that have addressed marine safety. Several
of these modifications were necessary to bring the Paris MOU in line with the EC
Directive on Port State Control. It is possible for any authority to propose amendments
to the Memorandum.7
During the 32nd meeting of the Port State Control Committee, which took place in
May 1999, new amendments to the Paris MOU concerning high speed craft were
adopted. The amendments entered into force on December 14 1999.
The amendments include the following new provisions:
(i)
The Permit to Operate for High Speed Craft (POHSC) includes limitations on
the maximum significant wave height (and wind force for hovercraft) within
which craft may operate. When carrying out inspections of HSC, PSCOs may
verify by reference to the logbook and the weather records whether these
limitations have been respected. PSCOs may find that a voyage had to be
completed when worse weather conditions than permitted were encountered,
but a new voyage should not commence in such conditions.
(ii) Procedures for obtaining up-to-date forecasts before every voyage should also
be checked. Forecasts of significant wave heights should cover a relevant
period. When the conditions are marginal, the master should obtain updates
from the port State weather services or ships in the vicinity.
(iii) If procedures are found to be lacking, owners should be required to confirm
their corrective action. PSCOs should question logbook entries which record
conditions significantly below forecasts of conditions above operating limits. If
further evidence is needed, “hindcasts” (i.e. reports of the actual weather over
a given period) may be available from the port weather service, but these
should normally be obtained only when there is significant doubt.
(iv) Where an HSC is found to have breached its weather limitations, action may
include sending a warning letter to the owners with a copy to the flag State.
In 2002 new amendments were adopted to bring the Paris MOU in line with the latest
changes of the EC Directive on Port State Control (the so-called “Erika I” package).
Ships which fly the flag of a State on the blacklist may be banned from the region after
multiple detentions. Under the new amendments, the following new provisions have
been introduced, starting from July 22 2003:
Expanded inspection for older oil tankers, chemical and gas carriers, bulk carriers
and passenger ships will be mandatory after 12 months from the last expanded
inspection.
— In order to target high-risk ships, a ship with a “target factor” (see infra, para.
7. See the Paris MOU 1982, section 7, for the amendment procedure.
124
THE PARIS MEMORANDUM
—
—
—
—
1 9 8 2 (PARIS
MOU )
5.7
5.21) greater than 50 will be inspected after one month from the last inspection
in the Paris MOU.
Banning rules are extended. A ship registered with a flag on the blacklist will be
refused access to ports in the MOU region:
— after the second detention in three years if it is in the “very high risk” or “high
risk” category on the blacklist;
— after the third detention in two years if it is in a lower risk category on the
blacklist.
Detentions from January 22 2002 count towards a ban and in order to lift it the
flag State and, where appropriate, the class must certify that the ship complies
with required standards, and the ship must complete an expanded inspection at
the owner’s expense.
Port State inspectors will record the charterer of a ship carrying liquid or solid
bulk cargoes. Shipowners will need to make sure that the information is
available on board.
If a ship is required to carry a functioning voyage data recorder (VDR), and it is
found not to be functioning properly, the ship may be detained.
5A.4(i) Harmonized action on ship security to start on January 1 2004
Following the adoption of the ISPS Code by the IMO in 2002 and the requirement to
obtain an ISSC by July 1 2004, the Paris MOU advisory board has agreed that ships
visiting ports in the region will be issued with a Letter of Warning (LOW) if the ISSC is
not available on board. The captain will be informed that the ship needs to comply
before July 1 2004 and that, apart from certification, a security system must be
implemented on board. The LOW will be recorded in the information system.
A draft guideline has been submitted to the IMO for discussion in March 2004 and the
Paris MOU Committee will decide in May 2004 on a focused, harmonized action plan
to inspect all ships subject to the Code starting July 1 2004.
Aspects considered by PSCOs conducting inspections will include:
—
—
—
—
—
—
—
—
—
—
whether there is a valid ISSC on board;
control of access to the vessel;
control of access to the sensitive areas of the ship;
that the ship is operating at the same (or a higher) security level as the port
facility;
that records are held of the last 10 ship-to-port or ship-to-ship interfaces;
that security drills and exercises have been carried out at required intervals,
taking account of crew changes;
whether master and ship’s personnel appear to be familiar with essential ship
security procedures;
whether key members of the ship’s personnel are able to communicate
effectively;
if a subsequent interim ISSC has been issued to avoid full compliance with
ISPS;
that the ship identification number is permanently marked in a visible place.
If after July 1 2004 deficiencies are recorded against any of these items, action may be
taken by the PSCO and the competent security authority.
125
5.7
5.8
REGIONAL PORT STATE CONTROL AGREEMENTS
5A.5 Target rate
5.8
Each of the MOU signatories has agreed that the national surveyors of each State will
endeavour to make visits to 25 per cent of the foreign vessels visiting that State. Despite
all the achievements made by the member States of the Paris MOU, the 25 per cent
target has proved to be the most difficult commitment to achieve. Although the Paris
MOU entered into force in 1982, the 25 per cent target was only achieved for the first
time in 1993.
In the first years of the Memorandum, the development of port State control
procedures was different in different member countries. Some maritime authorities did
not have the manpower available to comply with this commitment. In some countries,
maritime authorities had no problem in reaching the 25 per cent inspection rate; in fact,
in some cases they managed to reach percentages exceeding 40 per cent. Other maritime
authorities had immense problems getting hold of the necessary funds to expand their
shipping inspection service for the purposes of port State control. Obviously, these
different developments resulted in different inspection rates in member States. This
situation has started to change since 1986 and most of the member States manage to
provide budgets for their national port State control system.8
The overall funding of the Secretariat of the Paris MOU is met by the member States
on an equal contribution basis. The information bank at St Malo and the computer
serving it are charged out to member States on the basis of the individual time used. All
other costs lie with the State that incurs them. There is no charge upon the shipowner,
ship’s agent or the port authority for the operation of the MOU. There is no charge for
the first inspection of the vessel, even if there are deficiencies. However, if a second visit
is needed by a surveyor to see how the deficiencies have been rectified, then a charge is
made for that visit and subsequent visits where deficiencies continue to be involved.
5A.6 Structure
5.9
5.10
5.11
Port State Control Committee: This is the executive body, composed of representatives
from each maritime authority (originally 14, now 20) and the European Commission.
The IMO and the ILO have participated as observers in the work of the Committee on a
regular basis, and the US Coast Guard is an observer at Paris MOU meetings. Also, two
regional agreements have official observer status with the Paris MOU: the Tokyo MOU
and the Caribbean MOU. The committee carries out specific duties and promotes the
harmonization of procedures and practices relating to inspection, rectification, detention and the application of the “no more favourable treatment” clause, which compels
States to comply with provisions of the Convention whether they have ratified it or not.
The Secretariat: This functions within The Netherlands’ Ministry of Transport, Public
Works and Water Management. It is situated at Rijswijk near The Hague. The
secretariat acts under the guidance of the Port State Control Committee, prepares
meetings and assists the committee in carrying out its functions. The secretariat also
exchanges information and prepares reports.
The computerized information system: This is located in St Malo, France. The member
countries use part of the existing computer centre of the French Maritime Administration, which is called the Centre Administratif des Affaires Maritimes (CAAM). It
8. Huibers, H.E., pp.10–11.
126
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.13
contains results of each port State control inspection conducted anywhere in the region.
The results are immediately available to any partner to the Memorandum through
online terminals. The CAAM also provides the material for the production of statistics,
on the basis of the inspection data stored in the information system. A major revision of
the PSC database of the Paris MOU was completed and came into operation on January
1 1998. In addition to the database, the French maritime authorities developed a
computer system. Under this system all MOU ports could access data on inspections
carried out in other ports and were able to insert their inspections directly into the
Sirenac system. In the spring of 1998, a new Windows-based version of the local
software for use by individual port States was introduced for the new Sirenac system.
This system enables all users to have access to the complete PSC history of each ship, to
target ships using an integrated formula identifying potential substandard ships, and to
send messages to all other MOU ports by using a mailbox system.
5A.7 Relevant instruments
The Paris MOU does not set any new standards. It basically aims to make sure that all
ships operating in the region meet the internationally agreed standards. Only internationally accepted Conventions shall be enforced during the port State control
inspection. The following international maritime Conventions are applied:
5.12
— International Convention on Load Lines 1966, as amended, and its 1988
Protocol (LL 66/88);
— International Convention for the Safety of Life at Sea 1974 (SOLAS), its
Protocol of 1978, as amended, and the Protocol of 1988 (SOLAS 74/78/88);
— International Convention for the Prevention of Pollution from Ships 1973, as
modified by the Protocol of 1978, as amended (MARPOL 73/78);
— International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, as amended (STCW 78);
— Convention on the International Regulations for Preventing Collisions at Sea
1972, as amended (COLREG 72);
— International Convention on Tonnage Measurement of Ships 1969 (Tonnage 69);
— Merchant Shipping (Minimum Standards) Convention 1976 (ILO Convention No.147) and its 1996 Protocol;
— the International Convention on Civil Liability for Oil Pollution Damage,
1992 (CLC 1992).
5A.7(i) ILO Convention No.147 and ILO Protocol 1996
Inspections on board ships under the ILO Convention No.147 and ILO Protocol
1996 relate to:
1.
2.
the Minimum Age Convention 1973 (No.138); or
— the Minimum Age (Sea) Convention (Revised) 1936 (No.58); or
— the Minimum Age (Sea) Convention 1920 (No.7);
the Medical Examination (Seafarers) Convention 1946 (No.73);
127
5.13
5.13
REGIONAL PORT STATE CONTROL AGREEMENTS
3.
4.
5.
6.
7.
8.
the Prevention of Accidents (Seafarers) Convention 1970 (No.134) (Arts. 4
and 7);
the Accommodation of Crews Convention (Revised) 1949 (No.92);
the Food and Catering (Ship’s Crew) Convention 1946 (No.68) (Art. 5);
the Accommodation and Crews (Supplementary Provisions) Convention
1970 (No.133);
the Seafarers’ Hours of Work and the Manning of Ships Convention 1996
(No.180);
the Officers’ Competency Certificates Convention 1936 (No.53) (Arts. 3 and
4).
With respect to ILO 147 and ILO Protocol 1996, each Authority will apply the
procedures referred to in section 7 of Annex I for the application of the ILO publication
“Inspection of Labour Conditions on board Ship: Guidelines for Procedure” and the
IMO/ILO Guidelines for the Development of Tables of Seafarers’ Shipboard Working
Arrangements and Formats of Records of Seafarers’ Hours of Work or Hours of Rest.
Each authority will apply the above-mentioned Conventions that are in force and to
which its State is a Party. The amendments to these Conventions will be applied if they
are in force and accepted by the member States.
5A.8 Port State Control Officer (PSCO)
5.14
Port State control is carried out by a PSCO. The PSCO is a properly qualified person
authorized to carry out port State control inspections in accordance with the Paris
MOU, by the maritime authority of the port State and acts under its responsibility. All
PSCOs carry an identity card, issued by their maritime authorities. The minimum
criteria for PSCOs under the Paris MOU9 are laid down in Annex 7: A PSCO must have
served as a flag State inspector for a minimum of one year, and:
— possess a certificate as master mariner, or
— possess a certificate as chief engineer, or
— have passed an examination as naval architect or mechanical engineer followed
by five years’ practical experience
The two first categories must have at least five years of sea service: or
— hold a university degree with relevant training; and
— have been trained and qualified at a training school for ship safety inspectors;
and
— have served at least two years as a flag State inspector dealing with surveys and
certifications in accordance with the Conventions.
A properly qualified PSCO must be able to communicate orally and in writing in the
English language.
PSCOs not fulfilling the above criteria are also accepted if they were employed for port
State control by the authorities before July 1 1996.
If the required professional expertise can not be provided by the authority, the PSCO
of that Authority may be assisted by any person with the required expertise. “PSCOs and
any persons assisting them will have no commercial interest, either in the port of
9. The Paris MOU 1982, Annex 7.
128
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.16
inspection or in the ships inspected, nor will PSCOs be employed by or undertake work
on behalf of non-governmental organizations which issue statutory certificates or which
carry out the surveys necessary for the issue of those certificates to ships.”10
5A.9 Port State control inspection procedures
5A.9(i) General information
The safe operation of a ship is a combination of shore management, a sufficient
number of competent crew members and a well-maintained and equipped vessel. Until
1991, port State control inspections under the Paris MOU were limited to checking the
“hardware” of the ship. The international Conventions provided only for checking the
certificates and equipment on board. The performance of the crew could not be assessed
even in cases where there were serious doubts. In three serious incidents, the Herald of
Free Enterprise, the Scandinavian Star and the Exxon Valdez, human error caused
considerable loss of lives and damage to the marine environment. Following these
incidents, European ministers responsible for maritime safety met in Paris in 1991. One
of the decisions taken at the ministerial conference was to ensure compliance with
operational requirements regarding marine safety and pollution prevention. Later in
1991, the “Guidelines for control on operational requirements” were adopted by the
Port State Control Committee.11 The guidelines were submitted to the IMO and
adopted as Assembly Resolution A.681(17) in November 1991. This resolution was
revised as Resolution A.742(18), Procedures for the control of operational requirements
related to the safety of ships and pollution prevention. It has been included in and
superseded by IMO Resolution A.787(19), Procedures for port State control, which has
been amended by Resolution A.882(21).
5A.9(ii) No more favourable treatment principle
In applying a relevant instrument for the purposes of port State control, the principle
of “no more favourable treatment” is applied to ships which fly the flag of a State which is
not a Party to that Convention. In such a case ships will be subject to a detailed
inspection and the PSCO will follow the same guidelines as those provided for ships to
which the relevant instruments are applicable. In other words, this principle ensures that
vessels flying the flag of a State which is not party to one or more of the Conventions
listed are not permitted to adopt standards lower than those applied to a vessel flying the
flag of a State that is party to all the relevant Conventions.
This principle has been stated in the Paris MOU, Annex 1, section 3.1, as follows:
“Ships entitled to fly the flag of a State which is not a party to a relevant instrument and thus not
provided with certificates representing prima facie evidence of satisfactory conditions on board, or
manned with crew members who do not hold valid STCW certificates, will receive a more detailed
or, as appropriate, expanded inspection. In making such an inspection, the Port State Control
Officer will follow the same procedures as provided for ships to which the relevant instruments are
applicable.
If the ship or the crew has some alternative form of certification, the Port State Control Officer,
10. The Paris MOU 1982, section 3.8.
11. Schiferli, R.W.J., “Port State Control—Developments in the Paris MOU and Work in Progress”, Port
State Control: Managing safety and quality in shipping conference, July 10–11 2000, London.
129
5.15
5.16
5.16
REGIONAL PORT STATE CONTROL AGREEMENTS
in making this inspection, may take some form and content of this documentation into account.
The conditions of such a ship and its equipment and the certification of the crew and the flag
State’s minimum manning standard must be compatible with the aims of the provisions of the
relevant instruments; otherwise the ship must be subject to such restrictions as are necessary to
obtain a comparable level of safety and protection of the marine environment.”
5.17
5.18
5A.9(iii) Ships below Convention size
Ships below Convention size (those below 500 gt) are subject to port State inspections
under the Paris MOU and inspections are made under the same inspection procedures
set out at Annex 1, section 3.2. In such cases the PSCO’s task will be to assess whether
the ship is of an acceptable standard in regard to safety, health or the environment. In
making that assessment, the PSCO will take into account factors such as the length and
nature of the intended voyage or service, the size and type of the ship, the equipment
provided and the nature of the cargo.
While inspecting a ship below Convention size the PSCO will be guided by any
certificates and other documents issued by or on behalf of the flag State administration.
The PSCO will, in the light of such certificates and documents and in his general
impression of the ship, use his professional judgement in deciding whether and in what
respects the ship will be further inspected. When carrying out a further inspection the
PSCO will, to the extent necessary, pay attention to the items listed in section 3.2.3 of
Annex 1. This list is not considered exhaustive but is intended to give an exemplification
of relevant items.
If during the inspection the PSCO finds deficiencies that are considered hazardous to
safety, health or the environment, the PSCO will take the necessary actions, including
detention, in order to ensure that the deficiency is rectified or that the ship, if allowed to
proceed to another port, does not represent a clear hazard to safety, health or the
environment.
5A.9(iv) Minimum manning standards and certification
The guiding principle for PSC inspection of the manning of a foreign ship is to
establish conformity with the flag State’s safe manning requirements. Where this is in
doubt the flag State will be consulted. Such manning requirements stem from:
— the international provisions as laid down in SOLAS 74, STCW 78 and IMO
Resolution A.890(21).
— the provisions of ILO 147, which inter alia refer to ILO Convention No.53, Arts.
3 and 4.
If the extent of the manning deficiency is such as to render the ship clearly unsafe for
the intended voyage or service, the ship will be detained.
The port State will contact the flag State if:
(i)
(ii)
the actual number or composition of the crew does not conform to the
minimum safe manning document; or
if the ship does not carry a minimum safe manning document or equivalent.
If the actual crew number and composition are not brought into line with the safe
manning document, the ship will probably be detained. If the flag State does not
respond, this will be considered as a clear ground for a more detailed inspection, with a
strong likelihood of detention.
130
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.21
5A.9(v) Operational violations
If it is requested by another authority, the authorities will endeavour to secure
evidence relating to suspected violations of the requirements on operational matters of
r.10 of COLREG 72 and MARPOL 73/78. If suspected violations involve the discharge
of harmful substances then an authority will, upon the request of another authority, visit
the port of the ship suspected of such violation in order to obtain information and where
appropriate to take a sample of any alleged pollutant. Procedures for investigations into
contravention of discharge provisions are listed in Annex 2.12
5A.9(vi) Priority inspections
In selecting ships for priority inspection the criteria indicated in section 1 of Annex I
will be used.
5A.9(vii) Targeting factors for priority inspections
Targeting allows PSC resources to be used more efficiently while rewarding
well-managed vessels with less frequent inspections. To help PSCOs rank priority ships,
the Paris MOU has developed a computerized targeting formula as part of its database
system. This formula resulted in a target factor (TF) for each individual ship. The TF
value of each ship is calculated in the central Paris MOU PSC database (“Sirenac”) on
the basis of the ship’s profile and inspection history.
The target factor assists in establishing a priority for inspection. Basically, it has two
purposes: to help the PSC authorities to assess the risk so that limited resources can be
focused on the worst ships, and to send the message that the number of inspections on
board a ship can be reduced by improving the performance of ship, flag and classification
society.
The target factor combines a weighted value for each of the priority criteria including
the inspection history of the ship.
The following have been stated as relevant elements for the targeting factor under the
Paris MOU:13
(i)
(ii)
(iii)
(iv)
(v)
Ships visiting a port of a State, the authority of which is a signatory to the
Memorandum, for the first time or after an absence of 12 months or more. In
the absence of appropriate data for this purpose, the authorities will rely upon
the available Sirenac data and inspect those ships which have not been
registered in the Sirenac following the entry into force of that database on
January 1 1993.
Ships not inspected by any Authority within the previous six months.
Ships whose statutory certificates on the ship’s construction and equipment,
issued in accordance with the Conventions, and the classification certificates,
have been issued by an organization that is not recognized by the authority.
Ships flying the flag of a State appearing in the black list as published in the
annual report of the MOU.
Ships which have been permitted by the authority to leave a port of its State on
certain conditions:
— deficiency to be rectified before departure;
12. The Paris MOU 1982, section 5.
13. The Paris MOU 1982, Annex 1, section 1.2.
131
5.19
5.20
5.21
5.21
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
REGIONAL PORT STATE CONTROL AGREEMENTS
— deficiency to be rectified at the next port;
— deficiencies to be rectified within 14 days;
— deficiencies for which other conditions have been specified;
— if ship-related action has been taken and all deficiencies have been rectified.
Ships for which deficiencies have been recorded during a previous inspection,
according to the number of deficiencies.
Ships that have been detained in a previous port.
Ships flying the flag of a non-Party to a relevant instrument.
Ships with class deficiency ratio above average.
Ships that are in a category for which expanded inspection has been decided
pursuant to section 8 of Annex I.
Other ships above 13 years old.
The targeting system consists of two modules:
(i)
(ii)
5.22
the generic factor; and
the history factor.
The generic factor for an individual ship is calculated by adding together several
elements forming a generic profile of the ship. These include: flag States on the blacklist,
targeted ship type, non-EU-recognized classification society, age of the ship, aboveaverage class deficiency ratio, and flag. The points system includes the following
features:
(i)
(ii)
On the basis of the detention record, ships flying a certain flag may be labelled
between medium and very high risk. TF values range from four to 20 points.
Certain ships are targeted with a higher priority and receive five TF points.
These include bulk carriers, oil and chemical tankers, gas carriers, passenger
ships, and ro-ro ferry* more than 15 years old, which are liable for an expanded
inspection.
* other than ro-ro ferries and HS passenger craft operating in regular service
under the provisions of Council Dir. 1999/35/EC.
(iii)
(iv)
(v)
(vi)
5.23
Non-EU-recognized classification societies receive three TF points.
Ships of a certain age will receive additional target factor points. Ships between
13 and 20 years receive one point, ships between 21 and 24 years receive two
points and ships older than 25 years receive three points.
When a flag State has not ratified all Conventions in force, one point is added.
If the deficiency ratio of the classification society is 4% or more three points are
added, 2%–4% two points are added, 0%–2% one point is added, 0% or less
there won’t be any extra points.
The generic factor is updated when the particulars of the ship change or the status of
its existing flag or class change.
The history factor is applied to the generic factor to reflect the actual condition of the
ship found during the port State control inspections. The historic element includes:
ships that are entering the region for the first time in the last 12 months; or which have
not been inspected in the last six months; ships with a previous detention in the last 12
months; and those with a number of deficiencies during last 12 months. The following
elements are applied to each PSC inspection of the ship carried out in the last 12 months:
132
THE PARIS MEMORANDUM
(i)
(ii)
(iii)
(iv)
(v)
1 9 8 2 (PARIS
MOU )
5.25
When no PSC inspection has been recorded of a particular ship in the last 12
months, the ship will receive 20 TF points.
If the vessel has not been inspected in the last six months, it will receive ten TF
points.
A ship that has been detained once will receive 15 TF points, twice, 30 points,
and three times, 45 points.
When deficiencies are found during an inspection, the ship will receive
between zero and 15 additional TF points. When no deficiencies are found the
TF will be reduced by 15 points.
The value for the outstanding deficiencies is applied only in respect of the latest
inspection—for each listed action taken “rectify deficiency at next port” or
“master instructed to rectify deficiency before departure” and for every two
listed action taken “rectify deficiency within 14 days” and/or “other (specify in
clear text)” one point is added; in case “all deficiencies rectified” is noted on
the report two points are deducted.
The overall TF is calculated by adding the generic and historic factor. But the total
cannot be lower than the generic factor. All factors are recalculated on a daily basis. The
overall target factors are calculated at the end of each day.
Each State or port may have its own priority list of ships to be inspected depending
on types of vessel visiting their ports. The TF has been incorporated in Directive
98/25/EC.
Reports or complaints from ships’ crews, pilots or port authorities and incidents such
as collision or grounding are priority criteria that override the TF. Under the Paris
MOU, certain ships shall be considered as an overriding priority for inspection
regardless of the value of the target factor. These are ships:14
(i)
(ii)
(iii)
(iv)
(v)
that have been reported by pilots or port authorities as having deficiencies that
may prejudice their safe navigation, or may pose a threat of harm to the marine
environment;
carrying dangerous or polluting goods that have failed to report all relevant
information concerning the ship’s particulars, the ship’s movements and
concerning the dangerous or polluting goods being carried to the competent
authority of the port and coastal State;
that have been the subject of a report or notification by another authority;
that have been the subject of a report or complaint by the master, a crew
member, or any person or organization with a legitimate interest in the safe
operation of the ship, shipboard living and working conditions or the
prevention of pollution, unless the authority concerned deems the report or
complaint to be manifestly unfounded; the identity of the person lodging the
report or complaint must not be revealed to the master or the shipowner of the
ship concerned;
that have been:
— involved in a collision, grounding or stranding on their way to the port;
— accused of an alleged violation of the provisions on discharge of harmful
substances or effluents;
— manoeuvred in an erratic or unsafe manner whereby routing measures,
14. The Paris MOU 1982, Annex 1, section 1.1.
133
5.24
5.25
5.25
REGIONAL PORT STATE CONTROL AGREEMENTS
(vi)
(vii)
adopted by the IMO, or safe navigation practices and procedures have not
been followed; or
— otherwise operated in such a manner as to pose a danger to persons,
property or the environment;
that have been suspended from their class for safety reasons in the course of
preceding six months;
ships which cannot be identified in the SIReNAC information system.
A calculator to establish the TF for a particular ship was added to the Paris MOU
website in 2002.
5A.9(viii) Inspections
INITIAL INSPECTION
5.26
In general: Inspections are normally unannounced. Under international Conventions,
flag States that are party to them are given the right to certify that particular ships comply
with the standards set out in the Conventions. These certificates are to be taken as
conclusive unless there is good reason to doubt that the ship complies with the relevant
standards. The Paris Memorandum adopts the same approach by stating that:
“In fulfilling their commitments the Authorities will carry out inspections, which will consist of a
visit on board a ship in order to check the certificates and documents as referred to in section 2 of
Annex 1 . . .. In the absence of valid certificates and documents, or if there are clear grounds for
believing that the ship does not substantially meet the requirements of a relevant instrument, a
more detailed inspection will be carried out, as referred to in section 5 of Annex 1. Examples of
clear grounds are given in section 4 of Annex 1”.15
5.27
In the past, this has been interpreted to mean that the inspection should stop once the
PSCO has been shown a set of valid certificates. Experience continues to show that valid
certificates are no guarantee of compliance with the Conventions. Control on
compliance with on-board operational requirements will be included in the control
procedures, particularly if the PSCO has reason to believe that the crew demonstrates
insufficient proficiency in that area.
Examining the ship’s certificates and associated mandatory documents is a necessary
part of the inspection.
Examination of certificates and documents at the initial inspection: At the initial inspection,
the PSCO will, as a minimum and to the extent applicable, examine the following
documents:
1.
2.
3.
4.
5.
6.
7.
8.
9.
International Tonnage Certificate (1969);
Passenger Ship Safety Certificate;
Cargo Ship Safety Construction Certificate;
Cargo Ship Safety Equipment Certificate;
Cargo Ship Radio Certificate;
Exemption Certificate and any list of cargoes (as per SOLAS II–2/53.1.3);
Cargo Ship Safety Certificate;
Document of Compliance (SOLAS 74, Regulation II–2/54);
Dangerous goods special list or manifest, or detailed stowage plan;
15. The Paris MOU 1982, section 3.1.
134
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.27
10. International Certificate of Fitness for the Carriage of Liquefied Gases in Bulk,
or the Certificate of Fitness for the Carriage of Liquefied Gases in Bulk,
whichever is appropriate;
11. International Certificate of Fitness for the Carriage of Dangerous Chemicals in
Bulk, or the Certificate of Fitness for the Carriage of Dangerous Chemicals in
Bulk, whichever is appropriate;
12. International Oil Pollution Prevention Certificate;
13. International Pollution Prevention Certificate for the Carriage of Noxious
Liquid Substances in Bulk;
14. International Load Line Certificate (1966);
15. International Load Line Exemption Certificate;
16. Oil Record Book, parts I and II;
17. Shipboard Oil Pollution Emergency Plan;
18. Cargo Record Book;
19. Minimum Safe Manning Document;
20. Certificates issued in accordance with STCW Convention;
21. Medical certificates (See ILO Convention No. 73);
22. Table of shipboard working arrangements (see ILO Convention No. 180 and
STCW95);
23. Records of hours of work or rest of seafarers (see ILO Convention No. 180);
24. Stability information;
25. Copy of Document of Compliance and Safety Management Certificate issued
in accordance with the International Management Code for the Safe Operation of Ships and for Pollution Prevention;
26. Certificates as to the ship’s hull strength and machinery installations issued by
the classification society in question (only to be required if the ship maintains
its class with a classification society);
27. Survey Report Files (in case of bulk carriers or oil tankers);
28. For ro-ro passenger ships, information on the A/A-max ratio;
29. Document of authorization for the carriage of grain;
30. Special Purpose Ship Safety Certificate;
31. High Speed Craft Safety Certificate and Permit to Operate High Speed Craft;
32. Mobile Offshore Drilling Unit Safety Certificate;
33. For oil tankers, the record of oil discharge monitoring and control system for
the last ballast voyage;
34. The muster list, fire control plan, and for passenger ships, a damage control
plan, a decision-support system for the master (printed emergency plan);
35. Ship’s log book with respect to the records of drills, including security drills,
and the log for records of inspection and maintenance of life-saving appliances
and arrangements and fire fighting appliances and arrangements;
36. Reports of previous port State control inspections;
37. Cargo Securing Manual;
38. For passenger ships, list of operational limitations;
39. For passenger ships, a Plan for co-operation with SAR services;
40. Bulk Carrier Booklet;
41. Loading/Unloading Plan for bulk carriers;
42. Garbage Management Plan;
43. Garbage Record Book;
135
5.27
REGIONAL PORT STATE CONTROL AGREEMENTS
44. Certificate of insurance or any other financial security in respect of civil liability
for oil pollution damage;
45. International Ship Security Certificate (ISSC);
46. Continuous Synopsis Record.
5.28
Starting from July 22 2003, the Protocol to ILO 147, which requires checking of new
requirements for seafarers’ hours of work and rest, will be implemented by PSCOs.
After examining the ship’s certificates and associated mandatory documents, the
regulations require the PSCO to be satisfied of the overall condition of the ship including
the engine room and crew accommodation. Therefore, the PSCO conducts a general
inspection of several areas on board to verify that the overall condition of the ship
(including the engine room and accommodation, and including hygienic conditions)
complies with that required by the various certificates.
When an inspection has been completed, the master of the ship is to be issued with a
document setting out the results of the inspection and details of any action taken. If the
ship complies with the requirements, the PSCO will issue a “clean” inspection report
(Form A) to the master of the ship. Production of a “clean” document issued within the
previous six months means that the ship in question is outside the criteria for the
selection of ships for inspection discussed above, unless there are some reasons for
suspecting a deterioration in the vessel or crew. This report must be retained on board
for two years and it should be available for examination by PSCOs at all times. Next, the
data on the respective ship and the inspection result will be recorded on Sirenac. This
information will be processed and every second week the CAAM will send out
alphabetical lists of the ships inspected in the region in the previous six months to each of
the participating maritime authorities, and to the secretariat established under the Paris
Memorandum.
GROUNDS FOR MORE DETAILED INSPECTION
5.29
If valid certificates or documents are not on board, or if there are “clear grounds” to
believe that the condition of a ship, its equipment or its crew does not substantially meet
the requirements of a relevant Convention, a more detailed inspection will be carried
out.16 The Paris Memorandum gives examples of clear grounds for a more detailed
inspection17 which includes the following:
“1. the ship has been identified as a priority case for inspection, under section 1.1 and section
1.2.3, 1.2.4, 1.2.5b, 1.2.5.c, and 1.2.8 of Annex I;
2. during examination of the certificates and documents referred to in section 2 of Annex I,
inaccuracies have been revealed or the documents have not been properly kept or
updated;
3. indications that the relevant crew members are unable to communicate appropriately
with each other, or with other persons on board, or that the ship is unable to
communicate with the shore-based authorities either in a common language or in the
language of those authorities;
4. evidence of cargo and other operations not being conducted safely or in accordance with
IMO guidelines;
16. The Paris MOU 1982, Annex 1, section 5.1.1 provides as follows:
“In the absence of valid certificates or documents or after the establishment of clear grounds, the Port
State Control Officer will:
1. Conduct a more detailed inspection in the area(s) where clear grounds were established;
2. Carry out a more detailed inspection in other areas at random; and
3. Include further checking of compliance with on-board operational requirements.”
17. The Paris MOU 1982, Annex 1, section 4.
136
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.32
5.
failure of the master of an oil tanker to produce the record of the oil discharge monitoring
and control system for the last ballast voyage;
6. absence of an up-to-date muster list, or crew members not aware of their duties in the
event of fire or an order to abandon the ship;
7. the emission of false distress alerts not followed by proper cancellation procedures;
8. the absence of principal equipment or arrangements required by the conventions;
9. evidence from the post State control officer’s general impressions and observations that
serious hull or structural deterioration or deficiencies exist that may place at risk the
structural, watertight or weathertight integrity of the ship;
10. excessively unsanitary conditions on board the ship;
11. information or evidence that the master or crew is not familiar with essential shipboard
operations relating to the safety of ships or the prevention of pollution, or that such
operations have not been carried out;
12. the absence of a table of a shipboard working arrangements or records of hours of work or
rest of seafarers (see ILO 180).”18
MANDATORY INSPECTION
Mandatory inspection is a new requirement starting from July 22 2003 and applies to
all ship types.
A ship with a TF greater than 50 will be inspected if it is at least one month since its last
inspection in the Paris MOU region. A ship is not required to notify the port state of its
arrival.
5.30
MANDATORY EXPANDED INSPECTIONS
Expanded inspection became mandatory for the following ships on July 22 2003.
These ships are eligible for expanded inspection every 12 months. These ships may also
be subject to inspection as provided under section 3.1 of the Paris MOU between two
expanded inspections. This mandatory expanded inspection has to be carried out at the
vessel’s first port visited after a period of 12 months since the last expanded inspection.
The categories of ships subject to expanded inspection are:19
— Oil tankers with a gross tonnage of more than 3,000 gt and older than 15 years of
age, as determined on the basis of the date of construction indicated in the ship’s
safety certificates.
— Bulk carriers older than 12 years of age, as determined on the basis of the date of
construction indicated in the ship’s safety certificates.
— Passenger ships older than 15 years of age other than ro-ro ferries and high speed
passenger craft operating in regular service under the provision of Council
Directive 1999/35/EC.
— Gas and chemical tankers older than 10 years of age, as determined on the basis
of the date of construction indicated in the ship’s safety certificates.
In the case of passenger ships operating on a regular schedule in or out of a port of a
State the authority of which is a signatory to the Memorandum, an expanded inspection
of each ship will be carried out by that authority.
When a passenger ship operates such a schedule between ports of States the
authorities of which are signatories to the Memorandum, the authority of one of these
States will undertake the expanded inspection.20
A ship must give three days’ notice of arrival to the MOU port where it becomes
eligible for an expanded inspection or before leaving the previous port if the voyage is less
18. The Paris MOU 1982, Annex 1, section 4, “Examples of clear grounds for a more detailed inspection”.
19. The Paris MOU 1982, Annex I, section 8.2.
20. Ibid.
137
5.31
5.32
5.32
5.33
REGIONAL PORT STATE CONTROL AGREEMENTS
than three days. Arrangements for notifying the PSC authorities vary between member
States. Therefore, owners are recommended to check with their port agents.
If the ship has a TF of seven or over, the port State is required to complete the
expanded inspection before the ship leaves the port. However, for operational reasons,
such as a ship’s short stay in port, port States may pass an inspection to the next port in
the MOU. A ship with target factor under seven will not normally be subject to an
expanded inspection but should continue to notify subsequent MOU ports until its
target factor reaches seven and a mandatory expanded inspection is carried out.
During mandatory expanded inspection, the following items at least should be
considered.
For ships in general (oil tankers, bulk carriers, passenger ships, and gas and chemical tankers
as described in section 8.2 of Annex I): The following items can be accepted as a general list
to be used for all types of ships that are subject to mandatory expanded inspection. There
are also different lists of items for different vessel types.
1.
2.
3.
black-out and start of emergency generator;
inspection of emergency lighting;
operation of emergency fire pump with two fire hoses connected to the fire
main line;
4. operation of bilge pumps;
5. closing of watertight doors;
6. lowering of one sea-side lifeboat to the water;
7. test of remote emergency stop for e.g. boilers, ventilation and fuel pumps;
8. testing of steering gear including auxiliary steering gear;
9. inspection of emergency source of power to radio installations;
10. inspection and, to the extent possible, test of oily water separator.
5.34
Oil tankers: In addition to the items listed above for ships in general, the following
items are also considered to be part of the expanded inspection for oil tankers.
1.
2.
3.
4.
5.
6.
5.35
fixed deck foam system;
firefighting equipment in general;
inspection of fire dampers to engine room, pump room and accommodation;
control of pressure of inert gas and oxygen content thereof;
ballast tanks: at least one of the ballast tanks within the cargo area to be
examined; from tank manhole/deck access in first instance, and entered if
inspector establishes clear ground for further inspection;
verification that the following documents are on board, review of them and
confirmation that the flag State or classification society has endorsed them:
(1) reports of structural surveys,
(2) condition evaluation reports,
(3) thickness measurement reports,
(4) descriptive document referred to by IMO resolution A.744(18).
Under this list, note should be made of the requirement that at least one ballast tank of
the oil tanker is inspected.
Bulk carriers: In addition to the items listed above for ships in general, the following
items are also considered to be part of the expanded inspection for bulk carriers:
138
THE PARIS MEMORANDUM
1.
2.
3.
4.
5.
1 9 8 2 (PARIS
MOU )
5.37
possible corrosion of deck machinery foundations;
possible deformation and/or corrosion of hatch covers;
possible cracks or local corrosion in transverse bulkheads;
access to cargo holds;
verification that the following documents are on board, a review of them and
confirmation that the flag State or classification society has endorsed them:
(1) reports of structural surveys,
(2) condition evaluation reports,
(3) thickness measurement reports,
(4) descriptive document referred to by IMO Resolution A.744(18).
Gas and chemical tankers: In addition to the items listed above for ships in general, the
following items are also considered to be part of the expanded inspection for gas and
chemical tankers:
1.
2.
3.
4.
5.
cargo tank monitoring and safety devices relating to temperature, pressure and
ullage;
oxygen analyzing and explosimeter devices, including their calibration.
Availability of chemical detection equipment (bellows) with an appropriate
number of suitable gas detection tubes for the specific cargo being carried;
cabin escape sets, giving suitable respiratory and eye protection, for every
person on board (if required by the products listed in the International
Certificate of Fitness or Certificate of Fitness for the Carriage of Dangerous
Chemicals in Bulk or Liquefied Gases in Bulk, as applicable);
verification that the product being carried is listed in the International
Certificate of Fitness or the Certificate of Fitness for the Carriage of Dangerous
Chemicals in Bulk or Liquefied Gases in Bulk, as applicable;
fixed firefighting installations on deck, whether they be foam or dry chemical or
other, as required by the product carried.
Passenger ships: In addition to the items listed above for ships in general, the following
items are also considered to be part of the expanded inspection for passenger ships:
1.
2.
3.
4.
5.
5.36
testing of fire detection and alarm system;
testing of proper closing of fire doors;
test of public address system;
fire drill, where, as a minimum, all sets of firefighting outfits must be
demonstrated and part of the catering crew must take part;
demonstration that key crew members are acquainted with the damage control
plan.
When inspecting passenger ships, the important requirements are that a fire drill and
the lowering of at least one lifeboat take place during the inspection.
All checks are subject to their practical feasibility and safety. If an authority is unable
to carry out an inspection or an expanded inspection for operational reasons, the Sirenac
system must be informed without delay that such inspection did not take place. If
necessary, with the consent of the master or the operator, the inspection may be
continued while the ship is on passage to or from ports of States which are parties to the
Paris MOU.
139
5.37
5.37
REGIONAL PORT STATE CONTROL AGREEMENTS
SUSPENSION OF AN INSPECTION
5.38
“In exceptional circumstances where, as a result of the initial control and a more detailed
inspection, the overall condition of a ship and its equipment, also taking the crew and its living and
working conditions into account, is found to be substandard, the Authority may suspend an
inspection.”21
In order to end the suspension of inspection, the responsible parties must take the
necessary steps to ensure that the ship complies with the requirements of the relevant
instruments.
If a vessel is detained and an inspection is suspended, then the authority must notify
the responsible parties as soon as possible. The notification will include information
about detention and state that the inspection is suspended until the Authority has been
informed that the ship complies with all relevant requirements.
5A.10 Detention
5.39
After the inspection, the PSC completes a Report of Inspection form—listing any
deficiencies found, the action that has to be taken to correct those deficiencies and the
time within which the corrections are to be made—and leaves a copy with the master.
The description of all codes for “action taken” can be found on the reverse side of Form
B of this report. The following possible courses of action may be taken or demanded by
the PSCO conducting the inspection:
— detention;
— rectification of deficiency
— prior to departure;
— at next port;22
— within 14 days;23
— as in the agreed class condition;
— for major non-conformity, in three months;24
— for major non-conformity, before departure;25
— at an agreed repair port;26
— temporary repair to be carried out;
— consultation with flag State;
— issue of letter of warranty;
— withdrawal of letter of warning;
— prohibition from continuing an operation;
— temporary substitution of equipment;
— specification of unusual circumstances.
The Paris MOU does not provide a legal basis for any intervention in respect of a
foreign vessel. It basically specifies the commitments of its subscribers with regard to the
relevant Conventions and notes only the fact that detention of the vessel may be
appropriate. According to the Paris MOU:
21.
22.
23.
24.
25.
26.
The Paris MOU 1982, section 3.9.2.
The Paris MOU 1982, section 3.9.1.
Never with a detainable deficiency.
Only with ISM-defective items and never with a detainable deficiency.
Only with ISM-defective items and always with a detainable deficiency.
Only for a detainable deficiency.
140
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.41
“In the case of deficiencies which are clearly hazardous to safety, health or the environment, the
Authority will, except as provided in 3.11, ensure that the hazard is removed before the ship is
allowed to proceed to sea. For this purpose appropriate action will be taken, which may include
detention or a formal prohibition of a ship to continue an operation due to established deficiencies
which, individually or together, would render the continued operation hazardous.” 27
Even the control regulations of the relevant international Conventions do not provide
a direct basis for legal action. Therefore, the Conventions’ provisions must be
implemented by national laws of the member countries. Such legislation must provide
the basis for legal action such as the detention of the vessel.
The Paris MOU does not explain what deficiencies would be considered “clearly
hazardous”. It leaves this to the professional judgement of the surveyor. To assist the
PSCO further, the members of the Paris MOU have agreed a list of defects which may
constitute grounds for detention. This list is not considered exhaustive, but is intended
to give an illustration of relevant items. However, the detainable deficiencies in the area
of STCW 78 are the only grounds for detention under that Convention.
If the deficiencies found during the detailed inspection are serious, the PSCO has to
decide whether he should prevent the vessel from sailing until they are rectified. This is
the ultimate measure that the PSCO has at his disposal. This is a powerful sanction and
it should not be used lightly. The PSCO will exercise his professional judgement in
determining whether to detain a ship until the deficiencies are corrected, or to allow it to
sail with certain deficiencies without unreasonable danger to the safety, health or the
environment, having regard to the particular circumstances of the intended voyage. The
PSCO has to take into account that an undue detention or delay may lead to legal action
for compensation by the shipowner; therefore, the PSCO must make a careful
assessment of all the aspects involved before using detention.
The Memorandum states that:
5.40
“When exercising his professional judgement as to whether or not a ship should be detained, the
Port State Control Officer will apply the following criteria:
1.
2.
Timing: ships which are unsafe to proceed to sea will be detained upon the first
inspection irrespective of the time the ship will stay in port;
Criterion: the ship will be detained if the deficiencies on a ship are sufficiently serious to
merit a Port State Control Officer returning to the ship to satisfy himself that they have
been rectified before the ship sails.” 28
It is also stated in the Memorandum that the need for the PSCO to return to the ship
classifies the seriousness of the deficiencies. However this does not impose an obligation
of detention for every case. It implies that the authority will verify, preferably by a further
visit, that the deficiencies have been rectified before departure.
“When deciding whether the deficiencies found in a ship are sufficiently serious to merit detention
the PSCO will assess whether:
1.
2.
the ship has relevant, valid documentation;
the ship has the crew required in the Minimum Safe Manning Document.
During inspection the Port State Control Officer will further assess whether the ship and/or
crew is able to:
27. The Paris MOU 1982, section 3.10.1
28. The Paris MOU 1982, Annex 1, section 9.3.2.
141
5.41
5.41
REGIONAL PORT STATE CONTROL AGREEMENTS
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
5.42
5.43
navigate safely throughout the forthcoming voyage;
safely handle, carry and monitor the condition of the cargo throughout the forthcoming
voyage;
operate the engine room safely throughout the forthcoming voyage;
maintain proper propulsion and steering throughout the forthcoming voyage;
fight fires effectively in any part of the ship if necessary during the forthcoming voyage;
abandon ship speedily and safely and effect rescue if necessary during the forthcoming
voyage;
prevent pollution of the environment throughout the forthcoming voyage;
maintain adequate stability throughout the forthcoming voyage;
maintain adequate watertight integrity throughout the forthcoming voyage;
communicate in distress situations if necessary during the forthcoming voyage;
provide safe and healthy conditions on board throughout the forthcoming voyage.
provide the maximum of information in case of accident (as provided by the voyage data
recorder).”
“If the results of any of these assessments is negative, taking into account all
deficiencies found, the ship will be strongly considered for detention. A combination of
deficiencies of a less serious nature may also warrant the detention of the ship.”29
Following a detention, the PSCO is required to inform the flag State and the
classification society (if it has issued statutory certificates) without delay. The harbour
master is customarily contacted at this time. The PSCO will note information on the
owner or operator of the vessel at the time of the detention and the master will be asked
to sign to confirm this information. Detention basically requires the vessel not to go to
sea and should not be confused with arrest. Arrest is associated with legal proceedings
and follows a court order.
A detained ship will be released only once the PSCO is satisfied that the deficiencies
found have been properly rectified. If some repairs cannot be made in the port of
detention, it is possible to allow the ship to proceed to a repair yard. For such permission,
adequate temporary repairs should be done and it should be safe for the vessel to make
such a voyage. In cases where the vessel fails to comply with the conditions of release in
such circumstances, it will be liable to be refused access to all MOU ports.
5A.10(i) Detainable deficiencies
The lack of certificates and documents required by the relevant instruments may be
considered as a reason to detain a ship. However, it has to be remembered that ships
flying the flag of States not a party to a relevant instrument or not having implemented a
relevant instrument are not entitled to carry the certificates provided for by the relevant
instrument. Therefore the absence of the required certificates will not by itself constitute
reason to detain these ships. However, in applying the “no more favourable treatment”
clause, substantial compliance with the provisions of the instruments must be required
before the ship sails.
74
failure of proper operation of propulsion and other essential machinery, as well
as electrical installations;
insufficient cleanliness of engine room, excess amount of oil-water mixtures in
bilges, insulation of piping, including exhaust pipes, in engine room contaminated by oil, improper operation of bilge pumping arrangements;
AREAS UNDER SOLAS
5.44
1.
2.
29. The Paris MOU 1982, Annex 1, section 9.3.3.
142
THE PARIS MEMORANDUM
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
1 9 8 2 (PARIS
MOU )
5.46
failure of the proper operation of emergency generator, lighting, batteries and
switches;
failure of the proper operation of the main and auxiliary steering gear;
absence, insufficient capacity or serious deterioration of personal life-saving
appliances, survival craft and launching arrangements;
absence, non-compliance, or substantial deterioration to the extent that it
cannot comply with its intended use, of fire detection system, fire alarms,
firefighting equipment, fixed fire extinguishing installation, ventilation valves,
fire dampers, quick closing devices;
absence, substantial deterioration or failure of proper operation of the cargo
deck area fire protection on tankers;
absence, non-compliance or serious deterioration of lights, shapes or sound
signals;
absence or failure of the proper operation of the radio equipment for distress
and safety communication;
absence or failure of the proper operation of navigation equipment, taking the
provisions of Reg. V/12(o) of SOLAS 74 into account;
absence of corrected navigational charts, and/or all other relevant nautical
publications necessary for the intended voyage, taking into account that type
approved electronic chart display and information system (ECDIS) operating
on official data may be used as a substitute for the charts;
absence of non-sparking exhaust ventilation for cargo pump rooms (Reg.
II-2/59.3.1 of SOLAS 74);
serious deficiency in the operational requirements listed in section 5.5 of
Annex I;
number, composition or certification of crew not corresponding with safe
manning document;
failure to carry out the enhanced survey programme in accordance with
SOLAS 74, Chapter XI, Reg. 2;
absence or failure of a VDR when its use is compulsory.
In the above list, attention is drawn to the VDR requirement. Starting from July 22
2003, a ship required under international rules to carry a functioning VDR may be
detained if the VDR is not functioning properly.
(REFERENCES ARE GIVEN IN BRACKETS )
transport of a substance not mentioned in the Certificate of Fitness, or missing
cargo information (16.2);
missing or damaged high-pressure safety devices (8.2.3);
electrical installations not intrinsically safe or not corresponding to code
requirements (10.2.3);
sources of ignition in hazardous locations referred to in 10.2 (11.3.15);
contraventions of special requirements (15);
exceeding of maximum allowable cargo quantity per tank (16.1);
insufficient heat protection for sensitive products (16.6).
AREAS UNDER THE IBC CODE
1.
2.
3.
4.
5.
6.
7.
(REFERENCES ARE GIVEN IN BRACKETS )
transport of a substance not mentioned in the Certificate of Fitness or missing
cargo information (18.1);
5.45
AREAS UNDER THE IGC CODE
1.
143
5.46
5.46
REGIONAL PORT STATE CONTROL AGREEMENTS
2.
3.
4.
5.
6.
7.
missing closing devices for accommodation or service spaces (3.2.6);
bulkhead not gastight (3.3.2);
defective airlocks (3.6);
missing or defective quick-closing valves (5.6);
missing or defective safety valves (8.2);
electrical installations not intrinsically safe or not corresponding to code
requirements (10.2.4);
8. ventilators in cargo area not operable (12.1);
9. pressure alarms for cargo tanks not operable (13.4.1);
10. gas detection plant and/or toxic gas detection plant defective (13.6);
11. transport of substances to be inhibited without valid inhibitor certificate
(17/19).
66
significant areas of damage or corrosion, or pitting of plating and associated
stiffening in decks and hull effecting seaworthiness or strength to take local
loads, unless proper temporary repairs for a voyage to a port for permanent
repairs have been carried out;
a recognized case of insufficient stability;
absence of sufficient and reliable information, in an approved form, which by
rapid and simple means enables the master to arrange for the loading and
ballasting of his ship in such a way that a safe margin of stability is maintained at
all stages and at varying conditions of the voyage, and that the creation of any
unacceptable stresses in the ship’s structure is avoided;
absence, substantial deterioration or defective closing devices, hatch closing
arrangements and watertight doors;
overloading;
absence of, or impossibility of reading, draught mark.
AREAS UNDER LL
5.47
1.
2.
3.
4.
5.
6.
AREAS UNDER ANNEX I TO MARPOL
7 3 / 7 8 (REFERENCES
ARE GIVEN IN
BRACKETS )
5.48
1.
2.
3.
4.
5.
absence, serious deterioration or failure of proper operation of the oil-water
filtering equipment, the oil discharge monitoring and control system or the 15
parts per million (ppm) alarm arrangements;
remaining capacity of slop and/or sludge tank insufficient for the intended
voyage;
oil record book not available (20(5));
unauthorized discharge bypass fitted;
survey report file missing or not in conformity with Reg. 13G(3)(b) of the
Convention.
AREAS UNDER ANNEX II TO MARPOL
7 3 / 7 8 (REFERENCES
ARE GIVEN IN
BRACKETS )
5.49
1.
2.
3.
4.
5.
absence of the Procedures and Arrangements Manual;
cargo not categorized (3(4));
no cargo record book available (9(6));
transport of oil-like substances without satisfying the requirements (14);
unauthorized discharge bypass fitted.
144
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.54
73/78
absence of a garbage management plan;
no garbage record book available;
ship’s personnel not familiar with disposal/discharge requirements of garbage
management plan.
AREAS UNDER ANNEX V TO MARPOL
1.
2.
3.
78
failure of seafarers to hold a certificate, to have an appropriate certificate, to
have a valid dispensation, or to provide documentary proof that an application
for an endorsement has been submitted to the flag State administration;
failure to comply with the applicable safe manning requirements of the flag
State administration;
failure of navigational or engineering watch arrangements to conform to the
requirements specified for the ship by the flag State administration;
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.
5.50
AREAS UNDER STCW
1.
2.
3.
4.
5.
6.
5.51
AREAS UNDER ILO CONVENTIONS
1.
2.
3.
4.
5.
6.
insufficient food for voyage to next port;
insufficient potable water for voyage to next port;
excessively unsanitary conditions on board;
no heating in accommodation of a ship operating in areas where temperatures
may be excessively low;
excessive garbage, blockage by equipment or cargo, or otherwise unsafe
conditions in passageways/accommodation;
clear evidence that watchkeeping and other duty personnel for the first watch
or subsequent relieving watches are impaired by fatigue.
5.52
AREAS WHICH MAY NOT WARRANT A DETENTION , BUT WHERE E .G . CARGO
OPERATIONS HAVE TO BE SUSPENDED
Failure of the proper operation (or maintenance) of the inert gas system, cargo-related
gear or machinery will be considered sufficient grounds to stop cargo operation.
5A.10(ii) Accidental damage
If the ground for detention is the result of accidental damage suffered on the ship’s
voyage to a port or during cargo operations, a detention order will not be issued provided
that the following circumstances are present:30
“1. due account has been given to the requirements contained in Regulation I/11(c) of
SOLAS 74 regarding notification to the flag State Administration, the nominated
surveyor or the recognized organization responsible for issuing the relevant certificate;
2. prior to entering a port, the master or shipowner has submitted to the port State control
authority details of the circumstances of the accident and the damage suffered and
information about the required notification of the flag State Administration;
30. The Paris MOU 1982, section 3.10.3.
145
5.53
5.54
5.54
REGIONAL PORT STATE CONTROL AGREEMENTS
3.
4.
appropriate remedial action, to the satisfaction of the Authority, is being taken by the
ship, and
the Authority has ensured, having been notified of the completion of the remedial action,
that deficiencies which were clearly hazardous to safety, health or the environment have
been rectified.”
5A.10(iii) Remedy in the nearest appropriate port
5.55
Taking into account the geographical situation in Europe, where many ports are
within a few hours’ sailing of each other and there are no unreasonable risks to safety,
health or environment, the PSCO may allow a vessel to sail with deficiencies which could
be corrected more effectively in the next port. In such cases, the PSCO notifies the next
port of call about the deficiencies of the vessel and its pending arrival in order to allow the
inspection service in that port to take over where he left off.
If some repairs cannot be made in the port of detention, it is possible to allow the ship
to proceed to an available repair yard, as chosen by the master and the authority. For
such permission, conditions determined by the competent authority of the flag State and
agreed by the authority must be complied with. These conditions may include
discharging of cargo and/or temporary repairs. It should also be safe for the ship,
passengers, crew and the other ships for the vessel to make such voyage. There should
also be no threat of harm to the marine environment.
If the decision to send a ship to a repair yard is taken due to a lack of compliance with
IMO Resolution A.744(18), either
— with respect to ship’s documentation, or
— with respect to ship’s structural failures and deficiencies,
the authority may require that the necessary thickness measurements are carried out
in the port of detention before the ship is allowed to sail.
If the vessel is detained due to lack of a functioning VDR system, and if it cannot be
rectified in the port of detention, the ship may be allowed to proceed to the nearest port
where it can be rectified, or required to rectify it within a maximum of 30 days.
In such cases the authority will notify the following:
— the next port of call;
— the flag State administration;
— the recognized organization that has issued the class certificates or the relevant
certificates on behalf of the flag State administration; and
— any other authority as appropriate.
Notification to authorities must include:
— the final report of inspection; and
— the estimated place and time of arrival.
Additional notification will be through the Sirenac system. The authority receiving
such notification will inform the notifying authority of action taken. In cases where the
vessel fails to comply with the conditions of release to proceed to the nearest port, it will
be liable to be refused access to all MOU ports.
146
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.58
5A.11 Appeal process
While exercising control under the Memorandum, the authorities are supposed to
make all possible efforts to avoid unduly detaining or delaying a ship. Nothing in the
Memorandum affects rights created by provisions of relevant instruments relating to
compensation for undue detention or delay. In any instance of alleged undue detention
or delay, the burden of proof lies with the owner or operator of the ship.
When a ship has been detained, all costs accrued by the port State inspecting the ship
will be charged to the owner or the operator of the ship or to his representative in the port
State. The detention will not be lifted until the full payment has been made or a sufficient
guarantee has been given for the reimbursement of the costs.31 As from July 22 2003 a
PSCO in the Paris MOU region has a new power to issue a refusal of access notice, the
owner or the operator of a ship has a right of appeal against a detention decision and also
against a refusal of access decision taken by the port State authority, and the port State
Control authority should properly inform the master of a ship of the right of appeal.32
However, the phrase “properly inform” is not further specified and it is up to the
discretion of the port State to make such a statement. In general, most of the port States
print a statement on the notice of detention for the master, which is usually followed by a
verbal statement. Appeal notice details can usually be found on the reverse side of
notice-of-detention forms and vary across the Paris MOU member States.
The appeal procedure applying to each country varies, as will the remedies available to
the owner/operator within each jurisdiction. However, an appeal will not result in the
detention being lifted immediately.33
Application for compensation after a detention is lifted following an appeal in the port
State will require another court case in that port State.
5A.11(i) Appeal procedures
Under Paris MOU section 3.16, it is stated that:
5.56
5.57
(a) an owner/operator or his representative in the State concerned has a right of
appeal against a detention;
(b) the appeal process does not cause the detention or refusal of access to be
suspended.
An owner/operator can only submit an official appeal in the port State within the
provided time limits. An allegation that a shipowner missed the time limit for appeal
because the master of the vessel was not aware of the appeal procedure is unlikely to
succeed, as information on appeal procedures is published on the Paris MOU website.
The Paris MOU does not give detailed information about the appeal procedure in any
given country, but has a summary of remedies available to the owner on a country-bycountry basis, as follows.
BELGIUM
1.
Appeal against the decision on account of the Belgian Shipping Act shall be
made by the owner or the master concerned and shall be made to the Maritime
Board of Investigation through the president of the court.
Address:
31. The Paris MOU 1982, section 3.15.
32. The Paris MOU 1982, section 3.16.
33. Ibid.
147
5.58
5.58
REGIONAL PORT STATE CONTROL AGREEMENTS
2.
3.
Voorzitter van de Onderzoeksraad voor de Scheepvaart
Griffie onderzoeksraad Hof van Beroep
Waalse Kaai 37
2000 Antwerpen
Appeal against the decision of detention on account of the Prevention of
Pollution from Ships Act shall be made by the captain or owner, charterer or
operator of the ship. The appeal shall be made to the Minister of Maritime
Affairs and Shipping.
Address:
Minister van Vervoer
Wetstraat 65
1040 Brussel
The appeal shall be made within 14 days after the detention and shall be in
writing.
CANADA
5.59
1.
2
Appeal against the decision of detention on account of the Canadian Shipping
Act shall be made by the owner or master concerned through the Consular
Office of the flag State.
The appeal shall be made within 30 days after the date of detention and in
writing to the Director General Marine Safety, by letter or telefax.
Address:
Director General (AMS)
Marine Safety Transport Canada
Place de Ville, Tower “C”
11th floor, 330 Sparks Street
Ottawa, Ontario K1A 0N5
Fax: (613) 993 8196
CROATIA
5.60
1.
2.
3.
The party referred to in the detention order has the right to appeal to the
Ministry of Marine Affairs, Transport and Communication, within the period
of seven days from the submission of the detention order.
The appeal is to be submitted through this harbour master’s office.
The appeal against this detention order does not suspend its execution.
In accordance with the Law on Administrative Procedure each party is allowed
to submit the appeal on the inspector’s order within the deadline of 15 days.
The party is informed on this right on every administrative order (detention
form). An independent body within the Minister’s cabinet deals, at the second
level, with all appeals received in the Ministry, without any influence from the
Transport Safety inspectorate.
After that, the unsatisfied party has the right to initiate the legal procedure
within the Court, which does not postpone the execution of the administrative
order.
DENMARK
5.61
1.
If the detention is in accordance with the Act of Safety at Sea:
In pursuance of section 21, para 1, of the Danish Act on Safety at Sea, the
owner of the ship may appeal the detention to the Board of Detention,
Vermundsgade 38C, Postboks 2605, DK-2100 Copenhagen.
148
THE PARIS MEMORANDUM
2.
1 9 8 2 (PARIS
MOU )
5.63
If the detention is in accordance with the Act on Protection of the Marine
Environment:
In pursuance of section 51, paras. 5 and 8, of the Danish Act on Protection
of the Marine Environment, the owner of the ship may in writing appeal
the detention to the Board of Detention, Vermundsgade 38C, Postboks
2605, DK-2100 Copenhagen.
The appeal shall be received by the Board of Detention not later than four
weeks after the date of the notice of detention as stated overleaf.
FINLAND
1.
A party may file a claim for the rectification of the supervising authority’s
decision based on the Act on the Supervision of the Safety of Ships (370/1995).
The claim for rectification shall be addressed to the Maritime Safety
Department of the Finnish Maritime Administration and lodged at the
Registrar’s Office of the Finnish Maritime Administration in writing within the
time limit. The supervising authority’s decision may not be appealed. (Act
370/1995, para. 18)
2. The claim for rectification shall be lodged within 30 days of being served with
the notice of the decision. However, the claim for rectification must be lodged
not later than 14 days from the moment the master or shipowner learns of the
decision concerning the detention of the vessel. The day on which the notice is
served will be disregarded when the number of days is calculated. If the time
given ends on a Saturday, Sunday, Independence Day, May 1, Christmas Eve
or on a public holiday, the demand may be lodged on the next working day.
3. The claim document shall indicate:
— the name and domicile of the party lodging the claim;
— the decision being challenged, the specific parts of the decision being
challenged, the amendments demanded on the grounds on which the
claim for rectification is based; and
— if the right of action of the party lodging the claim is exercised by a legal
representative, proxy or other party involved in the drafting document,
said person’s name and domicile should also be indicated.
The document shall be signed by the party lodging the claim or his/her legal
representative or proxy.
4. The claim for rectification should be lodged at:
The Registrar’s Office of the Finnish Maritime Administration
Postal address:
PO Box 171
FIN-00181 Helsinki
Visiting address:
Porkkalankatu 5 Helsinki
Tel: +358 204 48 4108
Fax: +358 204 48 4273
5.62
FRANCE
1.
Appeal procedure
According to French laws, article 41 decret no 84–810, April 30 1984, the
appeal procedure on a PSC officer’s decision is raised to the chief of the safety
vessel centre corresponding.
149
5.63
5.63
REGIONAL PORT STATE CONTROL AGREEMENTS
2.
This appeal carries on a second visit on board for a final decision at this level.
At last the final decision could be contested at the Administrative Court of
Justice during a delay of two months. This delay does not suspend the effect of
the initial decision of the PSC officer.
Complaint
A complaint against the PSC officer’s decision can be sent for investigation to
the Ministry for Infrastructure, Transport and Housing, Direction Affaires
Maritimes et des Gens de Mer, Bureau du Controle des Navires, 3 Place de
Fontenoy, 75700 Paris.
GERMANY
5.64
1.
2.
A written appeal against the detention order may be lodged within one month
of issue. Such appeal should be addressed to the See Berufs Genossenschaft,
Reimerswiete 2, 20457 Hamburg.
In accordance with the provisions of section 80(2)(4) of the Code of
Administrative Procedure, any such appeal will not suspend the detention.
GREECE
5.65
1.
2.
According to the provisions of Art. 10 of Presidential Decree 88/97 which has
implemented the EU Directive on PSC the owner/operator has the right of
appeal against a detention, in accordance with the provisions of Art. 45 of the
Hellenic Code of Maritime Law.
The latter provides that the owner/operator has the right of appeal to the
Minister of Mercantile Marine within 30 days from the date of detention.
Following the decision of the Minister the owner/operator always keeps the
right to address himself to an administrative court for further appeal on his
case.
ICELAND
5.66
1.
2.
The official appeal procedures in Iceland are contained in Arts. 24 and 25 of
the Ship Survey Act No.35/1993, as amended, in Art. 10 Regulation
No.128/1997, as amended. The master of a ship is informed of the right of
appeal on the bottom of the notice of detention.
Such an appeal should be addressed to the Ministry of Transport and
Communications, c/o the detention committee (“Farbannsnefnd”).
IRELAND
5.67
1.
2.
3.
4.
The owner/operator of a ship, or his or her representative in the State, may
appeal against a detention decision taken by the competent authority but the
lodging of such an appeal shall not cause the detention to be suspended.
An appeal under this Regulation shall lie to the judge of the Circuit Court in
whose Circuit the port in which the ship is detained is located and shall be
made within seven days of the commencement of the detention.
On hearing an appeal under paragraph 1, the Court may confirm or vary the
detention to allow the appeal.
A decision of the Circuit Court on an appeal under paragraph 1 shall be final,
save that, by leave of the court, an appeal from its decision shall lie to the High
Court on a specified question of law.
150
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.70
ITALY
1.
2.
Official appeal procedure in case of a PSC detention:
The right of appeal is foreseen by Art. 8.2 of Ministerial Decree 432 of
19/4/2001 transposing EC Directive 95/21/EC on port State control.
This appeal procedure falls entirely under the responsibility of the jurisdictional authority.
By means of the notice of detention the master is informed, in writing, that
the shipowner of the detained vessel or his representative in Italy can appeal
against the detention order.
He is also informed that the appeal has to be addressed to the Tribunale
Administrativo Regionale within 60 days from the date of acknowledgement of
the notice of detention. This time limit is increased of 30 or 90 extra days where
the complainant is located in another European country or outside Europe
respectively.
The decision of the above regional court can be appealed at the Consiglio di
State.
Mechanism for handling complaints on PSC inspections:
Complaints concerning PSC inspections carried out in Italian ports are
considered and replied by the Italian Coastguard, safety of navigation
department.
All interested parties (shipowner, classification society, flag State, etc) can
address their complaint to the PSC authority that carried out the inspection or,
directly, to the main office in Rome at the following address:
Ministry of Infrastructure and Transport
Italian Coastguard Headquarters
Safety of Navigation Department
International Affairs Office
Viale dell’Arte 16–0144 Rome
Fax:+39 06 59084918
E-mail: sicnavi噝libero.it
5.68
THE NETHERLANDS
Appeal against the decision of detention on account of the Port State Control Act may
be made by any person who has been directly affected in his interests by this decision. An
appeal shall not cause the detention to be suspended.
Appeal shall be made to the Minister of Transport, Public Works and Water
Management through the Director of Netherlands Shipping Inspectorate. The appeal
shall be made within six weeks after the date of detention and shall be written in Dutch or
English language by letter, telegraph or telefax.
Address:
Netherlands Shipping Inspectorate
PO Box 8634
3009 AP Rotterdam
Telefax: +31 10 2022400
5.69
NORWAY
According to the Act of June 9 1903, No.7, relating to Public Control of the
Seaworthiness of Ships (the Seaworthiness Act), decisions concerning detention cannot
be appealed.
151
5.70
5.70
REGIONAL PORT STATE CONTROL AGREEMENTS
However, the owner or the master of the ship may bring the matter up for
reconsideration by judicial survey before the country or town court where the ship is
lying.
POLAND
5.71
The appeal against the detention order shall be made by the owner or master of the
concerned vessel to the Director of Maritime Office (as required in Gdynia or Stettin).
PORTUGAL
5.72
1.
2.
3.
The flag State, classification society and company/operator may appeal to the
President of the Instituto Maritimo-Portuário against the grounds of detention. This appeal will not cause the detention to be suspended. The burden of
proof lies with the appealing entity.
A formal appeal against the administrative decision of detention may be
presented to the maritime court of Lisbon, without suspension of the
detention, (23rd article, decree-law No.195/98 of July 10).
All inspections involving the detention will be taxed. The detention will not be
lifted until full payment has been made or s sufficient guarantee has been given.
RUSSIAN FEDERATION
5.73
In accordance with the Russian Constitution any person or company can appeal to the
Civil Court.
Special appeal procedures against detentions are under investigation.
SLOVENIA
5.74
1.
2.
3.
In accordance with the Administrative Procedure Law, each party is allowed to
submit an appeal on the inspector’s decision of detention within a deadline of
15 days. The party is informed of this right on every administrative decision.
The legal department as an independent body within the Ministry of
Transport deals with the appeal on a second level, without any influence from
the Maritime Inspection Division.
The appeal documents shall be submitted through the Slovenian Maritime
Directorate, Maritime Inspection Division.
Address:
Slovenian Maritime Directorate
Maritime Inspection Division
Kidrièeva 46
6000 Kooper
Fax: +386 566 32 145
SPAIN
5.75
An appeal may be presented against the decision of detention, which will not end the
administrative procedure, within one month to the Director General de la Marine
Mercante, within the scope of Art. 114 and the relevant Spanish law (Loy 30/92 de
Regimen Juridico de la Administraciones Publicas y del Procadimiento Administrative
Comùn) to the following official address:
Direccion General de la Marina Mercante
C/Ruiz de Alercón 1
Postal District 20814
Madrid.
152
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.79
Article 114 of Law 30/92 requires the appeal to be presented in Spanish.
SWEDEN
Appeal against the decision of detention may be lodged with the Ostergotland County
Administrative Court, not later than three weeks from the day you were notified of this
decision.
The original appeal documents, duly signed by an authorized person, shall be mailed
to:
5.76
Swedish Maritime Administration
Maritime Safety Inspectorate
S-601 78 Norrköping
UNITED KINGDOM
Summary: UK legislation provides for appeal and compensation for a master or owner
against the issue of a notice of detention. The appeal is referred to an independent
arbitrator for decision. The Maritime and Coastguard Agency (MCA) also operates an
administrative procedure to investigate complaints on any aspect of service provided by
the MCA. The complaint may be referred to an independent adjudicator if necessary.
Appeal and compensation—detention under port State control: A guidance note on appeal
procedure is issued at the time of detention. A master or owner of a ship may appeal
within 21 days against a notice of detention which has been served on the ground that the
ship is dangerously unsafe or fails to comply with UK Merchant Shipping Acts. The
right of appeal is contained in the Merchant Shipping Act 1995 and Merchant Shipping
(Port State Control) Regulations 1995. The appeal does not suspend the detention.
A single arbitrator is appointed by agreement between the parties, or if agreement
cannot be reached, by a judge of the High Court. The arbitrator, who must meet
qualification criteria specified in the Act, is required to decide whether there was or was
not a valid basis for the detention, but may take account of matters not specified in the
detention notice if considered relevant to the detention. The burden of satisfying the
arbitrator that there were no reasonable grounds for detention lies with the owner. If the
arbitrator decides that there was not a valid basis for the inspector’s opinion he must
either cancel the detention or confirm it with a modification. Otherwise he must confirm
it. In claiming compensation for an invalid detention the owner must satisfy the
arbitrator that any matter did not constitute a valid basis for the inspector’s opinion and
there were no reasonable grounds for the inspector to form that opinion. If satisfied the
arbitrator will award the owner compensation for loss arising from detention of the ship
as he thinks fit.
There is normally no appeal against the decision of the arbitrator. However if the
master or owner is concerned that the law was clearly incorrectly applied or the
arbitration conducted unfairly, he may take legal advice on whether the High Court
would overturn the decision on those grounds. A notice of appeal should be sent to the
MCA office issuing the detention order.
Complaints procedure: This is an administrative procedure for dealing with a complaint
from any person dissatisfied with the service provided by the MCA, which may include
inspection and detention. The procedure is set out in Service Standards published in the
MCA Business Plan.
A person dissatisfied with the service received may ask to speak to the regional
153
5.77
5.78
5.79
5.79
REGIONAL PORT STATE CONTROL AGREEMENTS
manager or headquarters branch who will do all they can to resolve it straightaway.
Contact details are available from the MCA website at www.mcga.gov.uk. MCA
headquarters may also be contacted by fax on +44 (0)2380 329104. If not satisfied with
the response, the complaint may be made to the chief executive who will make sure that
the complaint is thoroughly looked into. MCA undertakes to acknowledge a written
complaint within three working days and investigate and provide a full response within
15 days.
If the customer is dissatisfied with the way in which the MCA has handled the
complaint, a request may be made for reference to an independent adjudicator. This
does not remove the right of the customer to refer the complaint to their Member of
Parliament or ask for referral to the national Parliamentary Commissioner for
Administration (Ombudsman).
5.80
5A.11(ii) Appeals in practice
It is not very easy to find successful cases where an owner has successfully recovered
compensation following a wrongful detention by a PSCO. In 1993, the Panamanian
oil/bulk/ore carrier Mostoles was detained by a PSCO for breach of MARPOL while it
berthed in Rotterdam. The owners of the vessel made an application to the Ministry of
Transport against the wrongful arrest.34 Before making a decision, the Ministry asked
the opinion of the Maritime Board. The following statement was submitted by the
Maritime Board:
“1. The Port State Control Officer decided, after several repairs had been effected to the Mostoles,
to maintain the arrest because he could not in any way get an indication as to a possible or
acceptable discharge to a shore facility of the engine room bilge water which had been pumped
into cargo slop tanks.
He decided that it was not justified to authorize the Mostoles to put to sea without having
discharged the slop tanks and he declined an offer by the Owners to have the slop tanks sealed
because no information was forthcoming on the next port of call and consequently no contract
could be made to make sure of a lawful discharge.
2. The owners finally ordered a lighter to receive the slops.
3. On June 25, 1993, the Owners lodged a claim with the Minister of Transport for the delay
incurred by the ship, the loss of the value of the slops and the expenses of discharge of the slops, all
caused, in their mind, by the undue arrest of the ship by the Port State Control. They relied for this
purpose on MARPOL 73/78, Annex I, Chapter II, Regulation 9(6) which provides “The oil
residues which cannot be discharged into the sea . . . shall be retained on board or discharged at
reception facilities.” Such a decision is that of the Master.
Considering that the Port State Control Officer has a certain latitude to act when coming to the
decision to arrest a ship until the cargo is discharged to a shore facility, the decisive factor is
whether he could reasonably come to the conclusion that there was a threat of pollution of the
marine environment if the contents of the slop tanks were kept on board.
The oil record book shows that two illegal discharges occurred in 1993. Also taking into
consideration the fact that the Master of the Mostoles could not supply the name of his next port of
call, with the result that it was impossible to communicate with the Authorities of the following
port to make sure of the lawful discharge of the contents of the slop tanks, the Port State Control
Officer could reasonably come to the conclusion that a threat arose to the marine environment
should the content of the slop tanks be kept on board.
The Port State Control Officer could turn down the offer to seal the relevant tanks and pipe
lines, because the name of the next port of call could not be supplied, with the result that no control
could be exercised over the lawful discharging of the slop tanks.
34. “Port state control—claim for undue detention rejected, The ‘Mostoles’ ”, (1995) 6 Int. M.L.,
pp.148–149.
154
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.82
The Maritime Board advises the Minister of Transport to dismiss the objection of the Owners.”
In 1994 an application was made in The Netherlands in the Pauline Oliveiri case. In
this case the owners finally met the Dutch authorities’ conditions for sailing but the
authorities kept the detention order in force until the owner agreed to put up security for
DFl15,000,000. After weighing up the interests of both parties it was stated by the court
that it was reasonable to demand security for environmental damages on the basis that its
liability insurance was inadequate and the owner lost their claim for compensation.
In both cases the courts concluded that the detentions were justified and ruled in
favour of the port State authority.
5A.12 The Paris MOU review panel35
In general, owners and operators are advised to use the official national procedure if
they wish to appeal against a detention order. However, if the owner or operator misses
the deadlines under the national appeal procedures but still wishes to appeal, or to use
the review procedures as well as, and as an alternative to, the appeal procedures, he may
now seek redress by the review panel procedure.
If an owner wants to have his case submitted for review, the application has to be made
to the flag State (or classification society, if applicable) to take action on his behalf. It is
not possible for an owner to submit a case for review directly. The owner is not a party in
the review; only the flag State or, if relevant, the classification society. There is no
prescribed format other than that all documents have to be submitted electronically by
e-mail in English.
Application for compensation after a detention is lifted following a review is not
possible, as the only possible outcome of a review can be the amendment of inspection
particulars in the public database for the owner and in the annual statistics for the flag
State or the classification society, if relevant.
The procedure works as follows:
1.
2.
3.
4.
5.
The owner or operator complains to his flag State or the classification society
(if authorized to act for the flag State).
The flag State/classification society may then ask the detaining port State to
reconsider its decision.
The port State should investigate the decision and inform the flag State or the
classification society of the outcome. If the port State agrees to reverse its
decision it should inform the Paris MOU database manager and the Paris
MOU secretariat.
If, however, the flag State/classification society disagrees with the outcome of
the detaining port State’s investigation, a request for review may be sent to the
Paris MOU secretariat.
The secretariat will set up a review panel. The panel will comprise of itself and
three MOU authorities requested on an alphabetically rotating basis, excluding the port and flag State (if applicable). The secretariat will also inform the
port State of the request for review and invite the port State to submit relevant
information in electronic format.
35. Based on the information provided in Paris MOU website: “Appeal procedure”, http://
www.parismou.org.
155
5.81
5.82
5.82
REGIONAL PORT STATE CONTROL AGREEMENTS
6.
7.
8.
9.
5.83
The panel will consider the procedural and technical aspects of the inspection
and a unanimous opinion will be prepared.
The secretariat will prepare a summary of the opinions of the review panel and
will inform the flag State or the classification society, as appropriate, the port
state and the MOU Advisory Board.
If the review panel supports the complaint, the detaining port State will be
requested to reconsider the detention.
The review panel’s findings are not binding, but if the detaining port State
cancels the detention it should notify the relevant Paris MOU authority. The
flag State/classification society will then be informed.
The review panel became a permanent feature during 2003. According to the Paris
MOU annual report 2002, in 2001 and 2002 a total of four cases were submitted to the
panel. Three of them involved the flag State and one case was from a classification
society. Each case was administered by the Secretariat and submitted to MOU members
for review. In three cases the review panel considered the complaint justified and
“requested the port State to reconsider its judgment. As evidence of good co-operation
all requests were honoured and the flag or the classification society was informed
accordingly”.36 It is not possible to get further information about these cases, as review is
an internal procedure and the results are not public information. The parties involved
are informed regarding the outcome and the member States receive an annual update on
the number of cases handled and the final results.
5A.13 Banned ships
5.84
5.85
5.86
Under the following circumstances, ships will be refused access to any port in the Paris
MOU region.
5A.13(i) ISM Certificates
In accordance with section 3.10.4 of the Paris MOU, a ship without ISM certificates
on board must be detained. However, if no other deficiencies warranting detention are
found, the detention may be lifted to avoid port congestion. Ships leaving port under
these circumstances are banned until valid ISM certificates have been issued.
5A.13(ii) Refusal of access notices
According to section 3.10.5 of the Paris MOU, some ships are banned after multiple
detentions. In such cases, either the ship:
— flies the flag of a State appearing in the blacklist, as published in the annual
report of the MOU, and has been detained more than twice in the course of the
preceding 24 months in ports within the region of the Memorandum; or
— flies the flag of a State described as “very high risk” or “high risk” in the blacklist,
as published in the annual report of the MOU, and has been detained more than
once in the course of preceding 36 months in ports within the region of the
Memorandum.
If these conditions are met, the authority of the port in which the ship is detained for
36. Paris MOU Annual Report 2002, p.10.
156
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.87
the second or third time, as appropriate, must inform the captain and the owner or the
operator of the ship in writing of the refusal of access order37 served on the ship. The
competent authority must also inform the flag State administration, the classification
society concerned, the Département des Systèmes d’Information (DSI) and the
Secretariat.
The refusal of access shall become applicable immediately the ship has been
authorized to leave the port where it has been the subject of a second or third detention,
as appropriate.
Refusal of access applies to the following ship types:38
—
—
—
—
gas and chemical tankers;
bulk carriers;
oil tankers;
passenger ships.
There is no tonnage or age limitation for such vessels, and detentions from January 22
2002 will count towards a ban.
LIFTING A REFUSAL OF ACCESS ORDER
In order to lift the ban, the owner or the operator must address a formal request to the
authority of the State that imposed the refusal of access order. This must include a
certificate from the flag State (not a recognized organization) conforming that the ship
complies with all Convention requirements. If the ship is classed, the classification
society must inform that the ship complies with its rules.
The order may only be lifted following a re-inspection of the ship at an agreed port by
inspectors of the authority that imposed the order. The authority has to be satisfied that
the vessel fully complies with the applicable requirements of the international
Conventions. If the agreed port is located within the region of the Memorandum, the
competent authority of the State of the port of destination may authorize, with the
agreement of the authority that imposed the refusal of access order, the ship to proceed
to the port of destination in question. The purpose of this permission is to verify that the
ship fully conforms to the applicable provisions of the international Conventions.
The re-inspection shall consist of an expanded inspection which would cover at least
the relevant items listed in section 8.3 of Annex I to the Memorandum. All costs of this
expanded inspection will be borne by the owner or the operator.
If, following the expanded inspection, the refusal of access order is lifted, the owner or
the operator of the ship must be informed thereof in writing. The flag State
administration, the classification society concerned, the DSI and the secretariat must
also be notified in writing.
Information relating to ships that have been refused access to ports within the region
of the Memorandum will be made available in the Sirenac system and published at least
every month.
37. Access to a specific port may be permitted by the relevant authority of that port State in the event of force
majeure or overriding safety considerations, or to reduce or minimize the risk of pollution, provided that
adequate measures to the satisfaction of the competent authority of such State have been implemented by the
owner, the operator or the master of the ship to ensure safe entry. The Paris MOU 1982, section 3.12.3.
38. The Paris MOU 1982, Annex 3, Access refusal measures concerning certain ships.
157
5.87
5.87
REGIONAL PORT STATE CONTROL AGREEMENTS
5A.13(iii) Other reasons
5.88
In accordance with section 3.12 of the Paris MOU ships may be banned if:
— they jump detention; or
— they fail to call at an indicated port yard
The tables below indicate how section 3.12 has been applied.
5.89
Year
Number of banned Reasons for banning
Vessels
Lifted bans
2000
16
Eight failed to call at an agreed
repair yard;
seven jumped detentions; one was
not certified in accordance with the
ISM Code
By the end of 2000 the bans had
been lifted on two ships after
verification that all deficiencies had
been rectified
2001
19
Nine failed to call at an agreed
repair yard; eight jumped
detentions; two were not certified in
accordance with the ISM Code
By the end of 2001 the bans had
been lifted on three ships after
verification that all deficiencies had
been rectified
2002
24
14 failed to call at an agreed repair
yard; two jumped detentions; eight
were not certified in accordance
with the ISM Code
By the end of 2002 the bans had
been lifted on 11 ships after
verification that all deficiencies had
been rectified
At the time of writing, the following cases were given as banned ships:39
Name of ship
IMO number
Banning date
Banning State
Banning reason
Sandra
7336642
Apr 5 2004
France
Multiple
detentions
Marwa B
7501833
Feb 25 2004
Italy
Multiple
detentions
Dr Ahamad
7712030
Feb 16 2004
Slovenia
Jumped detention
Sandra
7919846
Feb 14 2004
Italy
Multiple
detentions
Kinso
7222279
Jan 5 2004
Greece
Failed to call at
indicated repair
yard
Plutonas
7808322
Nov 20 2003
Spain
No valid ISM
certificate
Alexandros S
(ex Vigsnes)
7700544
Nov 4 2003
UK
Failed to call at
indicated repair
yard
Amada
8008840
Oct 31 2003
Spain
Failed to call at
indicated repair
yard
Al Tawfik
7396616
Oct 30 2003
Greece
Failed to call at
indicated repair
yard
Amur 2503
8721296
Oct 8 2003
Greece
Failed to call at
indicated repair
yard
39. The list aims to provide examples of banned-vessel cases. A detailed list of banned ships can be found on
the Paris MOU website http://www.parismou.org.
158
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.89
Name of ship
IMO number
Banning date
Banning State
Banning reason
Jayde (ex Alco)
7233046
Sep 22 2003
Greece
Failed to call at
indicated repair
yard
Maple
7427142
Aug 29 2003
France
Multiple
detentions
Arya
6919045
Aug 08 2003
Russian
Federation
Failed to call at
indicated repair
yard
Manyas
7533094
May 23 2003
Spain
Failed to call at
indicated repair
yard
Salih C
7314589
Mar 27 2003
Italy
Failed to call at
indicated repair
yard
Guller
7702736
Mar 24 2003
Italy
Jumped detention
Pace
7616482
Jan 24 2003
Portugal
Failed to call at
indicated repair
yard
Amir H
7106176
Jan 7 2003
Greece
Failed to call at
indicated repair
yard
Barhoma
7214806
Dec 5 2002
Italy
Failed to call at
indicated repair
yard
Agios Dimitrios 7
7409097
Nov 22 2002
Greece
Failed to call at
indicated repair
yard
Nihat Kalkavan
8107787
Nov 22 2002
Spain
Failed to call at
indicated repair
yard
Haj Ibrahim
7701275
Oct 28 2002
Spain
Jumped detention
Ira (ex Vika)
7027241
Sep 9 2002
Italy
Failed to call at
indicated repair
yard
Oras
7526534
Aug 21 2002
Italy
Failed to call at
indicated repair
yard
Smooth Challenger
7716000
Aug 5 2002
Italy
Failed to call at
indicated repair
yard
Sandra
7627613
Jun 20 2002
Italy
No valid ISM
certificate
Anastasios III
7120794
May 24 2002
Italy
Failed to call at
indicated repair
yard
Mercary (ex
Zanita)
5360572
Jan 21 2002
UK
Failed to call at
indicated repair
yard
Maria (ex
Nordvik)
7315624
May 17 2001
Belgium
Failed to call at
indicated repair
yard
159
5.89
REGIONAL PORT STATE CONTROL AGREEMENTS
Name of ship
IMO number
Banning date
Banning State
Banning reason
Tom T
7310844
Liao Chang Leng II
8843939
May 11 2001
France
Unknown
Mar 12 2001
Spain
Failed to call at
indicated repair
yard
Suloy
7041106
Feb 24 2000
Spain
Jumped detention
Helje
6912059
Feb 17 2000
Spain
Jumped detention
Stroyno (ex
Blestyashchiy)
7943122
Nov 22 1999
Sweden
Jumped detention
Delmar Eagle
6722038
Nov 11 1999
UK
No valid ISM
certificate
Ogan Bey (ex
Funda C)
7106932
Nov 1 1999
Italy
Failed to call at
indicated repair
yard
Dima 3
6708874
Oct 31 1998
Croatia
Jumped detention
Castor (ex
Dynacontainer I)
7035432
Jul 14 1998
Spain
Failed to call at
indicated repair
yard
Ducado (ex Hua
Lung Reefer)
6803313
Mar 15 1998
Spain
Jumped detention
Rina One (ex
Leader)
7329077
Nov 28 1996
UK
Failed to call at
indicated repair
yard
5A.14 The International Safety Management (ISM) Code
5.90
Ships which do not carry the necessary Document of Compliance (DOC) and Safety
Management Certificate (SMC) face a ban from all ports in the Paris MOU region.
Guidelines for the Control on the ISM Code have been adopted by the Port State
Control Committee of the Paris MOU. It has also been decided that the implementation
dates regarding certification will be strictly enforced.
The guidelines, inter alia, include the following procedures:
(i)
(ii)
(iii)
(iv)
5.91
during the initial inspection the DOC and the SMC will be checked—an SMC
is not valid unless the operating company holds a valid DOC for that ship type;
when ISM certification is absent or inaccurate or detainable deficiencies in
other areas are found, the ship shall be subject to a more detailed inspection;
if ISM certification cannot be produced on board, the ship shall be detained
until such certificates have been provided;
however, the detention may be lifted provided there are no other detainable
deficiencies outstanding. Subsequently, the ship shall be refused access to all
Paris MOU ports until valid ISM certificates are provided.
From the last quarter of 1997, PSC inspection included verification of the ISM
implementation process on board. Ships which could not produce any evidence that the
implementation of a safety management system had begun were issued an LOW. The
letter sets out the serious consequences of non-compliance. The master is instructed to
inform his owner of these possible consequences.
160
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.93
In order to simplify the ISM part of PSC inspections, the Paris and Tokyo PSC
regions are using an 11-point questionnaire. If the ship or crew fails one or more of the
points, the master must rectify them before departing port. The 11 points are as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
Is the ISM Code applicable to the ship as of July 1 1998?
Is the proper ISM certification on board?
Are certificates and particulars in order?
Is the safety management documentation available on board?
Is relevant documentation of the Ship Management System in a working
language or a language understood by the ship’s crew?
Can senior officers identify the company responsible for the operation of the
ship and does this correspond with the entry on the ISM Certificates?
Can senior officers identify the “designated person”?
Are procedures in place for establishing and maintaining contact with shore
management in an emergency?
Are programmes for drills and exercises to prepare for emergency actions
available on board?
Can the master provide documented proof of his responsibilities and authority,
which must include overriding authority?
Does the ship have a maintenance routine and are records available?
The procedure that is applicable in the absence of ISM certificates is stated under
section 3.10.4 of the Paris MOU.
If the inspection reveals that the copies of the DOC or the SMC issued in accordance
with the ISM Code are missing on board a vessel to which the ISM Code is applicable at
the date of the inspection, the vessel will be detained.
If there is no other deficiency that warrants detention, apart from the lack of the DOC
or SMC, the authority may lift the detention order in order to avoid port congestion.
Whenever such a decision is taken, the authority will immediately inform all other
authorities thereof. Vessels that leave the port of a member State under such condition
will be refused access to any port within the Paris MOU until the owner or operator of
the vessel has demonstrated, to the satisfaction of the authority in whose State detention
was ordered, that the ship has valid certificates issued in accordance with the ISM Code.
Access to a specific port may be permitted by the relevant authority of the port State in
the event of force majeure, overriding safety considerations or to reduce or minimize the
risk of pollution, provided that adequate measures have been implemented by the
owner, the operator or the master of the ship to the satisfaction of the competent
authority of such State in order to ensure safe entry.
5A.14(i) Concentrated inspection campaigns
Concentrated inspection campaigns were introduced in the Paris MOU in 1995.
These campaigns focus on a particular area on board. They aim to gather information on
compliance with international regulations applicable to that specific area and to help
improve compliance. In general, campaigns are limited to checking a number of specific
items for inspection. They are carried out over a period of three months. The following
concentrated inspection campaigns have been held:
— 1995: pilot ladder;
161
5.92
5.93
5.93
REGIONAL PORT STATE CONTROL AGREEMENTS
—
—
—
—
—
—
—
—
5.94
5.95
5.96
1996: oil record books;
1997: working and living conditions;
1998: ISM implementation;
1999: structural safety of bulk carriers;
2000: structural safety of oil tankers;
2001: security arrangements of cargo ships with freight units;
2002: ISM compliance; and
2003: passenger ships.
In July 1998, the Paris MOU Port State Control Committee started a concentrated
inspection campaign aimed at ships entering its region to which the ISM Code applied.
This campaign, held in conjunction with the Tokyo MOU, ran from July 1 to September
30 1998. During this campaign, a total of 1,575 eligible ships were inspected. A total of
81 ships were detained in port for major non-conformities in their systems. The average
detention percentage was 5.1 per cent. Three ships were banned from the Paris MOU
region for not having ISM certificates on board and a safety management system in
place. These ships were not allowed to enter any of the Paris MOU ports until evidence
was provided that a certified management system was in place. Bulk carriers were the
largest category of ships found not to comply with the international management
standards. Chemical tankers came next, followed by oil tankers. During the campaign,
three passenger ships and one gas carrier were detained for non-compliance.
A campaign took place from April 1–June 30 1999 to target bulk carriers over 30,000
gt and more than 15 years old. A standard questionnaire was used by PSCOs to test key
elements of vessel structure and operations. Inspections included an examination of
cargo holds and ballast tanks. During the campaign, eight of the bulk carriers inspected
had structural deficiencies considered serious enough to detain the ship and prevent it
from sailing until repairs were made. Defects were varied but included: holes in decks
and hatch covers, and badly wasted and cracked longitudinal and transverse stiffeners in
holds and tanks.
In the wake of the Erika disaster, the Paris MOU ran a concentrated inspection
campaign in order to investigate the structural safety of oil tankers of more than 3,000 gt
and more than 15 years old. The campaign also included the operational safety of such
tankers, and ran from September 1–30 2000. During the campaign, in addition to
regular PSC inspections, specific items were also checked. These included the cargo
deck area, ballast tanks, cargo tanks, pump rooms, inert gas systems, and the pressure
relief valves in the engine room. The results of the campaign highlighted an increased
rate of detention in tankers, lack of structural maintenance and defects in firefighting
equipment. Defects were found in 47 per cent of the 205 inspections carried out and 23
ships were detained.
In March 2001, the Paris MOU started a concentrated inspection campaign on cargo
ships with freight units in order to check the security arrangements on these vessels. The
campaign took place across the Paris MOU region from March 1–May 31. All ships that
are normally targeted for a PSC inspection were assessed for compliance with
cargo-securing requirements. The lashing was checked for compliance with SOLAS
Chapter VI, reg. 5.6 or Chapter VII, reg. 6.6. In addition to regular PSC checks, checks
were made on the cargo securing manual, the lashing plan, the cargo deck area, cargo
stowing and securing, and the quality of the lashing material in use. During the
162
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.99
campaign, a total of 1,072 inspections were carried out. Sixteen ships were detained for
deficiencies related to cargo securing. As a further check on operational safety, such
cargo ships were included in the next concentrated inspection campaign on compliance
with the ISM Code in 2002 in order to check whether control and maintenance of the
lashing material was integrated into the safety management system on board.
Starting in July 2002, a campaign on ISM compliance took place and ran until
September 30. The campaign was carried out in co-operation with the Tokyo MOU and
all ships were subject to the control. During the campaign, the PSCOs used a uniform
questionnaire to test key elements of the ship’s safety management system and inspected
a total of 3,846 eligible ships, 163 of which were detained for major non-conformities in
their systems. General cargo ships had the highest rate in failing to comply with the ISM
system. Passenger ships, special purpose ships and high speed craft were rated the best,
with no ISM-related deficiencies. Six ships were banned from the Paris MOU region for
not having ISM certificates on board and safety management systems in place. These
ships were not allowed to enter any Paris MOU ports until evidence was provided that a
certified management system was in place.
In May 2003, the Paris MOU launched a concentrated inspection campaign on
passenger ships. The campaign ran until July 31 2003 in order to cover most of the cruise
season in Europe and Canada. The focus was on the operational aspects of cruise ships
visiting Paris MOU ports, with special emphasis on fire drills and abandon ship drills. As
the campaign was organized in consultation with the cruise industry, as far as possible
the ships were inspected only once unless problems were uncovered. During the
campaign, 147 ships were inspected, 60 of which were registered in the Bahamas.
Deficiencies were found on 69 ships and 41 of them were operational deficiencies.
Thirty deficiencies were found in connection with fire drills, many relating to incomplete
equipment and operation of fire doors and fire dampers. Nearly all of the 30 deficiencies
that were found during abandon ship drills were related to a lack of preparation or
training when preparing the means of evacuation. Two ships were detained; one of them
was detained on operational matters, as simulated casualties were left at the fire scene.
The other one was detained on technical and safe-management reasons, because a large
number of fire dampers failed to close. Neither of these two vessels could perform a
satisfactory fire drill.
The committee will start a campaign on seafarers’ living and working conditions in
autumn 2004 with the addition of the new working time requirements under ILO
Convention 180. Campaigns on the Global Maritime Distress and Safety System
(GMDSS) and MARPOL Annex 1 are planned for 2005 and 2006.
5.97
5.98
5A.15 STCW
With the enforcement of STCW 95 in February 2002, the Paris MOU Committee
confirmed that port State control would focus on new requirements from that date and
provide feedback on the level of compliance. For this purpose, it developed specific
guidelines for assessment of STCW compliance by its PSCOs, including a 10-point
questionnaire based on the following elements:
—
—
—
—
Is the flag state on the white list?
Is the safe manning document on board?
Is the ship manned in accordance with the safe manning document?
Is a watch duty schedule posted?
163
5.99
5.99
REGIONAL PORT STATE CONTROL AGREEMENTS
— Do deck and engineer officers hold appropriate certificates?
— Are certificates issued under the STCW 78/95 amendments?
— Is the number of personnel certified for operating the GMDSS correct for the
sea area the ship is certified for?
— Is the required documentation for personnel with designated duties in order?
— Is dispensation, if issued to any of the required seafarers, valid?
The 33rd meeting of the IMO’s subcommittee on Standards of Training and
Watchkeeping (STW 33) recognized the fact that not all seafarers on board ships may
yet hold their STCW certificates and issued a recommendation (STCW.7/Circ.12) on
January 25 2002 to PSC authorities that, until July 31 2002, PSCOs issue only a warning
in cases where a seafarer’s documentation complied with the requirements immediately
before February 1 2002 but was not in accordance with the requirements of STCW 95.
PSCOs were recommended to issue the warnings to the shipping companies concerned
only and to notify the seafarers and inform the flag State accordingly.40 The Paris MOU
Advisory Board decided on January 28 2002 to take account of the recommendations of
the IMO Subcommittee and decided that “Letters of Warning should be issued and
accepted until 31 July 31 2002.”
Starting on February 1 2002, with the deadline for implementation of the revised
STCW 95, as amended, all inspections included a stringent check on STCW
documentation of seafarers to verify whether the new requirements had been complied
with. Deficiencies in the manning documentation were considered as clear grounds for a
more detailed inspection, which could include operational aspects such as fire and
abandon ship drills.
As indicated above, the master of a ship that had one or more seafarers who did not
comply with STCW 95 was issued with a standard LOW detailing the seafarers who did
not comply. This letter was copied to each seafarer, the company and the flag State. The
details of ships issued with LOWs were posted on the Paris MOU website. The results
showed the industry that the individual administrations and seafarers were not ready for
the implementation of the 1995 amendments to STCW. About 80 per cent of the
inspected flag States had not fully implemented STCW 95, as amended.
5A.16 Codes for actions taken
5.100
The codes for actions taken are as follows:
—
—
—
—
—
—
—
—
—
00 no action taken
10 deficiency rectified
12 all deficiencies rectified
15 rectify deficiency at next port
16 rectify deficiency within 14 days
17 master instructed to rectify deficiency before departure
18 rectify non-conformity within three months
19 rectify major non-conformity before departure
20 grounds for delay
40. Many delegations expressed their disappointment at the measure, but recognized that it was a
pragmatic response to what had become a lengthy administrative process. The Subcommittee recognized that
the 1995 amendments had introduced radical changes to the STCW Convention and that these had been a
significant factor in the delay.
164
THE PARIS MEMORANDUM
—
—
—
—
—
—
—
—
—
—
—
—
—
1 9 8 2 (PARIS
MOU )
5.102
30 grounds for detention
35 ship allowed to sail after detention
36 ship allowed to sail after follow-up detention
40 next port informed
45 next port informed to re-detain
50 flag State/consul informed
55 flag State consulted
70 classification society informed
80 temporary substitution of equipment
85 investigation of contravention of discharge provisions (MARPOL)
95 LOW issued
96 LOW withdrawn
99 other (specify in clear text)
5A.17 Detention information
In the 1980s, the Paris MOU only provided flag States with information on their ships
when so requested. Later, a list of flag States with a consistently poor safety record was
published. These flags were informed that they would be subject to priority inspections.
In 1993, the initiative was taken to publish a list of flag States with a consistently poor
safety record and in the 1993 annual report, a list was published for the first time of the
flag States exceeding the average detention percentage. Ships registered under these
flags would be inspected on a priority basis. Naming ships with a poor safety record was
the next step taken, in 1994. The purpose of publication is to make the maritime
industry aware of the identity of those ships that are repeatedly found in a substandard
condition, assuming that this fact is a possible indicator for the level of compliance of
these ships with international safety standards. Until September 1988, the Paris MOU
published quarterly lists of all ships detained two or more times. Starting from October
1988, the quarterly lists were replaced with monthly lists of all detentions.
In its 32nd meeting in Stockholm, the Port State Control Committee decided to
regularly publish detailed information on ships detained in the Paris MOU region,
including a monthly list of companies responsible for the safe operation of ships that
have been detained more than once, or that have had more than one ship detained within
the previous 12 months.
In its 1999 annual report, the Paris MOU published three lists of flag States:
(i)
(ii)
(iii)
5.101
the “white list”, indicating the high-quality flags;
the “grey list” for flags with an average PSC record; and
the “blacklist” for flags with a consistently poor safety record.
In a further initiative on monitoring the performance of classification societies, the
committee agreed to start publishing data relating to their performance in cases of
detention. These criteria, which were provisional until May 2000, were applied for one
year and the results were entered into the Sirenac database. For the first time, statistics
were generated by the Paris MOU to indicate the performance of a class. According to
the 1999 figures, in 24 per cent of detention cases, one or more deficiencies could be
attributed to the responsibility of the classification society that had issued the statutory
certificates for the ship.
In 1999 the Paris MOU also started to publish a so-called “Rustbucket of the Month”
165
5.102
5.102
5.103
on the internet. Under “Rustbucket”, particular detentions are described in detail and
supported with photographic material to make the general public aware of unsafe ships
that have been caught by port State control.
Under the Paris MOU, each authority agrees to take necessary measures in order to
ensure that information listed in Annex 5 on ships inspected and ships detained is
published at least every month in accordance with the procedures specified in Annex 4.
Information concerning ships inspected will include the following:41
—
—
—
—
—
—
—
—
—
—
—
5.104
REGIONAL PORT STATE CONTROL AGREEMENTS
name of the ship;
IMO number;
type of ship;
tonnage;
year of construction;
name and address of the company of the ship;
in the case of ships carrying liquid or solid cargoes in bulk, the name and address
of the charterer responsible for the selection of the vessel and the type of charter;
flag State;
the classification society or the classification societies and/or any other party that
has/have issued certificates to this ship in accordance with the appropriate
Conventions on behalf of the flag State, stating the certificates delivered;
country, port and date of inspection;
number and date of deficiencies.
Information on ships detained will include the following:
— name of the ship;
— IMO number;
— type of ship;
— tonnage;
— year of construction as determined on the basis of the date indicated in the ship’s
safety certificates;
— name and address of the company of the ship;
— in the case of ships carrying liquid or solid cargoes in bulk, the name and address
of the charterer responsible for the selection of the vessel and the type of charter;
— flag State;
— the classification society or classification societies, where relevant, which
has/have issued to this ship the class certificates, if any;
— the classification society or classification societies and/or any other party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating the certificates delivered;
— port and date of the last expanded inspection stating, where appropriate,
whether a detention was ordered;
— port and date of the last special survey and the name of the organization which
carried out the survey;
— number of detentions during the previous 24 months;
— country and port of detention;
— date when the detention was lifted;
— duration of detention, in days;
41. The Paris MOU 1982, Annex 5, Publication of information related to detentions and inspections.
166
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.105
— number of deficiencies found and the reasons for detention, in clear and explicit
terms;
— description of the measures taken by the competent authority and, where
relevant, by the classification society as a follow-up to detention;
— if the ship has been refused access to any port within the region of the
Memorandum, the reasons for such measure in clear and explicit terms;
— indication, where relevant, of whether the classification society or any other
private body that carried out the survey has a responsibility in relation to the
deficiencies which, alone or in combination, led to detention;
— description of the measures taken in the case of a ship which has been allowed to
proceed to the nearest appropriate repair yard, or which has been refused access
to any port within the region of the Memorandum.
In the above lists, attention is drawn to the requirement on the initial charterer of a
ship carrying liquid or solid bulk cargoes to be included in published information on
inspections and detentions. Port State inspectors will be required to record this
information on their reports of inspection and the shipowners need to make sure that the
information is available on board.
5A.18 Examples of detention cases under the Paris MOU42
5A.18(i) The Binar 4
Flag: People’s Republic of China, then Belize
Name of vessel: M/V Binar 4 (ex Liao Yu Leng 4)
Date of detentions: March 2001; October 10 2003
Place of detention: Las Palmas, Spain
Cause of detention: PSCOs found numerous detainable deficiencies.
The Binar 4 (ex Liao Yu Leng 4), IMO number 8831431, was inspected and detained in
Las Palmas, Spain in March 2001. At that time the ship was under the flag of the
People’s Republic of China. Forty-one deficiencies were detected. After rectifying the
deficiencies, the detention was lifted and the vessel was allowed to sail again. On October
9 2003, the vessel arrived in Las Palmas again. This time the vessel was flying the flag of
Belize. The vessel was inspected on October 10. During this inspection, 71 deficiencies
were discovered by PSCOs. Twenty-one of these deficiencies were considered grounds
for detention. The list of deficiencies included (among others):
—
—
—
—
—
—
—
—
—
—
six expired certificates;
corrosion, cracks and deformations;
nautical publications missing or expired;
several ISM-related issues;
malfunctioning radio equipment;
life-saving appliances not properly maintained;
lifeboats missing;
malfunctioning navigation lights;
unsatisfactory mooring and anchoring arrangements;
missing medical equipment.
42. These cases are based on information in the “Rustbucket” section of the Paris MOU website,
http://www.parismou.org.
167
5.105
5.105
REGIONAL PORT STATE CONTROL AGREEMENTS
The ship was detained until November 12 2003.
5.106
5A.18(ii) The Sammarina 5
Type of vessel: General cargo/multipurpose ship
Flag: Romania
Name of vessel: M/V Sammarina 5
Date of detention: April 1 2003
Place of detention: Oristano, Sardinia
Cause of detention: PSCOs found numerous detainable deficiencies.
The deficiencies found included:
— A structure with a diesel generator inside was found on the funnel deck. This
equipment was totally out of compliance with fire safety regulations.
— No quick-closing valve for the bunker tank was found.
— There were no fire doors or fixed fire-extinguishing systems inside.
— There were no ventilation stops.
— The structure was not found on the fire control plan.
— Limit switches plates, which support both port and starboard sides, were found
completely corroded/cracked by rust and totally unusable.
— Launching arrangements for both port and starboard sides were found out of
order.
— Release gears were found blocked, and during the dropping-out of the port
lifeboat a wire rope was broken.
— Port and starboard lifeboats were found damaged, with holes in several places.
— The abandon ship drill was stopped in order to re-establish safety for the crew
and for operations in general.
— Embarkation ladders for both port and starboard side were found too short and
broken in several places.
— The main fire line was found holed and rusted in several places and some
junction pivots were missing. The main fire line was completely unusable.
— Due to the lack of a main fire line, cargo operations were stopped.
— The emergency fire pump was found out of service.
— The firefighting training manual, firefighting operational booklet and firefighting maintenance plan were missing.
— The aft part of the main deck, under the superstructure, was found to be
completely covered with a 10-cm layer of cement. The upper part of the first
deck lower was found totally cracked, impairing seaworthiness.
— Cargo hatch cover packing rubbers were found damaged, impairing watertightness (expanded polyurethane and rubber belts were being used to keep the
hatch cover watertight).
— Several holes were found on the main deck due to corrosion of deck machinery
foundations.
— In the forecastle, some of the connections between the bulkhead plating and the
side shells were corroded/cracked.
Apart from these deficiencies there were several other problems, including:
— Nautical charts for the next intended voyage were missing or not updated. The
Notice to Mariners was missing.
168
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.107
— Means of escape from the engine room was not indicated. Emergency escape
breathing devices were missing and batteries for the search and rescue radar
transponder were expired.
— Due to the corrosion of the foundation, the oily-water separator was fixed with
falls to the nearest pipeline.
On 18 April 2003 the ship was allowed to sail for a single voyage to Gaeta-Constantia
to a repair yard for permanent repairs.
5A.18(iii) The Laila Queen
Type of vessel: Bulk carrier
Flag: Cambodia
Name of vessel: M/V Laila Queen
Date of detention: December 5 2002
Place of detention: Trieste, Italy
Cause of detention: The vessel was eligible for expanded inspection with a target factor
of 45.
The flag State administration had issued all statutory certificates except the SMC and
DOC. These were both issued by the ship’s classification society, Polski Rejestr Statkow
(Poland).
Deficiencies were found in different areas: STCW, LL:, SOLAS, mooring arrangements, cargo operation and ISM.
STCW: chief engineer’s certificate of competency and flag endorsements were not
found on board. The second mate was not able to provide proof of professional
proficiency for the duty assigned.
LL: None of the hatch covers was watertight. They had defective closing devices and
arrangements and substantial deterioration of reinforcements. Bulwarks, bulwark
plates, air pipes, head of double-bottom tanks Nos.3, 4, 5 on starboard side, and
masthouse handrails were found completely corroded/holed or missing.
SOLAS: The main fire line on the main deck was found corroded/holed, with heavy
water leakage and six fire hoses in poor condition. The engine room was not clean
enough and there was excess amount of leakage from the three diesel generators and
buster pumps. There was substantial deterioration of fire dampers. Updated navigational charts and nautical publications for the intended voyage were missing.
Mooring arrangements: The gearbox of the fore anchor winch was found with heavy
hydraulic oil leakage and two mooring ropes were in poor condition.
Cargo operations: The lining of brakes of all cargo gear winches were found in poor
condition and the aft starboard hydraulic line to the winches of masthouses No.1 and
No.2 were found corroded/holed and temporarily repaired with clamps.
ISM: Failures regarding manning (certificate of competency/endorsement), procedures, familiarization and general maintenance were considered to be major
non-conformities to the ISM Code.
On the evidence of the above deficiencies, the flag State administration and class
representatives inspected the vessel and the following actions were taken:
— some deficiencies were rectified and temporary repairs carried out;
— class certificate was suspended and recommendation for a single voyage was
issued;
169
5.107
5.107
REGIONAL PORT STATE CONTROL AGREEMENTS
— statutory certificates were withdrawn and short-term conditional certificates for
a single voyage were issued by the flag State;
— an additional audit for the SMC was carried out.
On December 12 2002 an “Authorization to proceed to a repair yard” certificate was
issued to permit the ship to sail for a single voyage from Trieste to a shipyard in Tartous,
Syria, for permanent repairs.
5.108
5A.18(iv) The Ramaz
Flag: Togo
Name of vessel: Ramaz
Date of detention: October 4 2002
Place of detention: Las Palmas, Spain
Cause of detention: The ship had been anchored for a undetermined period of time off
the coast of Mauretania with no maintenance at all. She proceeded to the Canary Islands
for repairs. After a long wait, permission was given to enter Las Palmas port when the
master informed authorities about a shortage of bunkers and water.
The most serious deficiencies detected on board were the following:
— There were no papers or documents on board. The master indicated that the
papers were held by the ship’s agent. Following an investigation, it became clear
that the ship had no agent. Then the master indicated that the papers were with
the shipowner, who could not be traced.
— The only instruments found on the bridge in working order were telephony,
GPS, magnetic compass and gyrocompass. Old Russian charts were used to fix
positions and navigate the ship from Mauretania to Las Palmas.
— The electrical power on board was generated by a generator normally used in
shore installations, placed on deck and fuelled by the crew with diesel oil in
portable containers.
— The ship’s generators in the engine room were out of order.
— Steering could only be carried out from a position in the steering gear room.
— Decks and their structure were extremely corroded, with missing material and
holed parts.
— Likewise, cargo gear, mooring arrangements and anchoring devices were in very
poor condition.
— Main and auxiliary engine were very dirty and most related equipment and
services were broken down.
— Life-saving appliances, firefighting equipment and pollution prevention equipment were poorly maintained.
— The ship was not in class.
— The ship’s crew had no certification whatsoever.
The ship remained in port for over two months.
5.109
5A.18(v) The Isparta
Type of vessel: Bulk carrier
Flag: Turkey
Name of vessel: Isparta
170
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.110
Date of detention: June 8 2001
Place of detention: Trieste, Italy
Cause of detention: During an inspection, PSCOs noticed that the Cargo Ship Safety
Construction and SMC certificates had expired and that class had been suspended by
the American Bureau of Shipping.
Main structural deficiencies were as follows:
— Main deck was corroded/holed; hatch brackets were cracked/corroded;
detached deck plate of lifeboats were about to corrode.
— Hatch covers were not weathertight and temporarily repaired with rubber
bands.
— Main fire line on deck was holed.
— Nautical charts were not updated; life-saving appliances showed deficiencies.
— Instructions for the lowering of lifeboats and liferafts were posted far from
emergency lighting. Lifebuoys needed to be renewed.
In the area of fire protection equipment, the following deficiencies were found:
— Mask of fireman outfit out of order.
— Emergency fire pump out of order.
— Main fire line on deck holed.
Apart from these deficiencies, one of the purifiers was out of order due to many oil
leaks and the engine room was too dirty.
According to procedure, the port State control authority informed the flag State, a
representative of which visited the ship on June 9 2001 and issued new interim DOC,
SMC, Safety Construction, IOPP and LL certificates.
At the owner’s request, Turkish Lloyd, the vessel’s new classification society,
inspected the vessel on June 13 2001 and a conditional class certificate was issued for a
single voyage from Trieste to Venice (for the completion of discharge) and finally to
Istanbul repair yard in ballast condition.
On the evidence received from the owner and the Turkish shipyard that the vessel was
scheduled for repairs, and after checking that the deficiencies concerning equipment
had been rectified, the vessel was released on June 13 2001 and authorized to proceed to
the agreed repair yard.
5A.18(vi) The Shiva
Type of vessel: Bulk carrier
Flag: Cambodia
Name of vessel: M/V Shiva
Date of detention: March 8 2001
Place of detention: Amsterdam, The Netherlands
Cause of detention: The ship was sailing under the Cambodian flag. As Cambodia is on
the blacklist of the Paris MOU and the ship had a very high target factor, the vessel was
inspected by the PSC authority of The Netherlands.
On initial inspection, so many deficiencies were found that the vessel was detained on
the first day while the inspection continued for two more days. In the end, about 90
deficiencies were found. These included:
171
5.110
5.110
—
—
—
—
—
—
—
REGIONAL PORT STATE CONTROL AGREEMENTS
holes in several decks;
several “mushroom” ventilators could not be closed;
“Christmas tree” on top deck incomplete, with cables hanging loose;
missing lifeboat equipment;
all stair-railings outside accommodation had corroded spots and holes;
toilets did not flush;
oil-water separator malfunctioning.
In summary, the condition of the vessel was very poor and a danger to safety and the
marine environment. The classification society, Inclamar, was requested to check all the
tanks, which could not be inspected during the PSC inspection. The ship was provided
with valid ISM certification, but there were no signs of a working safety management
system on board. A new audit had to be carried out. Following a lot of work done on
deck, hatches and in the forepeak, on May 1 2001 the detention was lifted. The vessel
was allowed to sail until July 18 2001, before final repairs.
5.111
5A.18(vii) The Nunki
Type of vessel: Oil tanker
Flag: Malta
Name of vessel: Nunki
Date of detention: May 22 2000
Place of detention: Amsterdam, The Netherlands
Cause of detention: During the PSC inspection, more then 90 deficiencies related to
safety, manning, marine pollution and working and living conditions were found.
40 deficiencies were considered to be grounds for detention. These included:
— As the annual survey was not carried out within the allowable time limit, the
Safety Equipment Certificate was expired.
— The endorsement of the certificate of competency of the chief officer had
already expired four months before he joined the vessel.
— Navigation lights were in very poor condition. For example, the port-side
navigation light was full of water due to incorrect drainage of the navigation
platform.
— The electric wiring of both starboard-and port-side navigation lights were in
sub-standard condition. Also, several supports of the “Christmas tree“ on the
top deck were corroded through.
— The starboard window on the bridge deck was broken and several frames of
windows in forward accommodation were loose and/or the coaming was
wasted.
— The emergency lighting was out of order in several places.
— Several ventilation pipes were corroded and holed or could not be closed
properly.
During the initial port State inspection, none of the tanks could be inspected as they
were still filled with cargo. However, there were clear indications that the structural
integrity of the vessel was not up to standard. Therefore the classification society, RINA,
was requested to inspect these tanks. Following the inspection, RINA found a long list of
serious structural deficiencies and class was suspended.
172
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.113
There is no news of the ultimate fate of the Nunki, but at the time of the report, the
owner, flag State and classification society were considering the following options:
— Unmanned towed voyage under strict conditions to a repair yard.
— Unmanned towed voyage under strict conditions to a scrapyard.
5A.18(viii) The Viidu
Type of vessel: General cargo vessel
Flag: Estonia
Name of vessel: Viidu
Date of detention: April 3 2000
Place of detention: Loviisa, Finland
Cause of detention: During initial inspection, PSCOs found a list of deficiencies,
including:
—
—
—
—
—
5.112
holes in bulkheads and decks;
buckled shell plates;
shell frames with fractures;
heavy corrosion all over the vessel;
inoperative fixed firefighting equipment.
These deficiencies were also recorded as grounds for detention. During the continued
inspection, the following new deficiencies were recorded. Some of these were also
grounds for detention:
— the overall condition of the engine room was substandard, not only due to
cleanliness, but also due to leaking pumps and pipelines, defective equipment
etc.;
— the galley, handling room, sanitary facilities and cleanliness of the ship’s laundry
were in a poor condition.
During the detention, a repair plan was set up by the classification society (Russian
Register of Shipping) in co-operation with the flag State (Estonia) and the port State
control administration.
After several repairs, the port State control authorities gave permission to continue
loading. PSCOs visited the vessel seven times, and finally, on May 3 2000, the detention
was lifted.
Temporary repairs were carried out in more than 120 areas and the validity of the
Safety Construction, LL and classification certificates were limited for one voyage and
until June 15 2000. On May 5 2000, the vessel sailed for a single voyage from Finland to
Greece. In Greece the vessel was re-inspected by the Russian Register of Shipping and
permission was issued for a single voyage, in ballast, to India, where the vessel would be
scrapped. The Viidu arrived in Alang, India, and was beached for the scrapping
operation on July 29.
5A.18(ix) The Seerose
Type of vessel: Dry cargo vessel
Flag: Honduras
Name of vessel: MV Seerose
Date of detention: April 3 2000
5.113
173
5.113
REGIONAL PORT STATE CONTROL AGREEMENTS
Place of detention: Poole Harbour, UK
Cause of detention: The vessel was on passage from Germany to Haiti, carrying a cargo
of tyres. She sought shelter from bad weather in Poole Harbour. While the vessel was
attempting to come alongside by going astern, the engine failed to go astern. Although
the engine failed to slow down the vessel and it continued to go ahead, mooring ropes
were secured alongside the vessel. The slack in the remaining rope on deck was taken up
violently and a crew member was caught in a bight of a mooring rope that continued to
pay out. It amputated both his legs. He was rushed to hospital.
The Poole harbour master informed the MCA of the incident. After receiving this
information, a surveyor visited the vessel for a PSC inspection. During the inspection,
the MCA surveyor found major deficiencies that led him to declare the vessel
“dangerously unsafe”.
The main deficiencies found by the surveyor were:
— main engine was unable to go astern;
— the engine room floor and vessel’s deck were covered with excess oil, causing
health, safety and fire risks.
In total, 39 deficiencies were found during the inspection. Apart from the abovementioned deficiencies, the vessel was detained on the following grounds:
—
—
—
—
—
—
the port anchor was seized in the hawse pipe;
there was a hole in the deck between the forecastle and the forepeak tank;
there were holes in the forecastle bulkhead;
the rescue boat davit required overhauling and testing;
the covers were missing from the engine room electrical distribution boxes;
the lights in the engine room were temporary.
The following conditions were also a major cause of concern:
— The chief officer’s and second engineer’s cabins were uninhabitable.
— The ballasted condition of the vessel was problematic. She was very light in
water. All the ballast lines to the tanks had been blanked off, as they were
damaged. Only the forepeak could be ballasted, and this could only be done via
a portable pump through the manhole.
During the course of inspection, the surveyor noted that the vessel had been given an
interim certificate of seaworthiness and an interim LL Certificate for a single voyage with
no commercial cargo. This certificate had been issued by the flag administration,
Honduras, on March 21 2000.
The owner of the vessel did not come forward and effectively “dumped” both the ship
and its crew. The ITF attended the vessel and took further action in order to settle the
crew’s wages dispute and to obtain compensation for the injured man. The vessel was
ultimately abandoned by the crew.
5.114
5A.18(x) The Estela
Type of vessel: Dry cargo vessel
Flag: Belize (now Madeira)
174
THE PARIS MEMORANDUM
1 9 8 2 (PARIS
MOU )
5.115
Name of vessel: MV Estela (now Brigo)
Date of detention: January 17 2000
Place of detention: Alicante, Spain
Cause of detention: The inspection in Alicante was the vessel’s fifth inspection. During
previous inspections, a high number of deficiencies were recorded and these deficiencies
put the vessel in a very high target-factor group.
Except the safe manning document, all certificates of the vessel were issued by Rinave,
the Portuguese classification society, or RINA, on January 12 2000. The expiry date of
all certificates was January 20 2000.
During the PSC inspection the following deficiencies were found:
—
—
—
—
—
—
—
—
—
—
—
The charts were outdated or missing.
The echo sounder was inoperative.
The line-throwing apparatus had expired.
It was not possible to operate the navigation lights on the emergency power
supply.
The emergency fire pump could not provide sufficient pressure.
In the engine room, one of the two auxiliary engines was out of order and the
steering gear was leaking.
The deck was heavily corroded.
Some frames were heavily corroded and/or cracked.
In the mooring equipment, the ropes were broken and in poor condition due to
bad maintenance. It was also not possible to use starboard anchor since the
anchor chain was broken.
Several certificates and documents were expired, such as the Cargo Ship Safety
Equipment Certificate, the safe manning document, the ship station licence and
the fire control plan.
Apart from these expired documents, other documents, such as the cargo
securing manual and garbage management plan, were not even available.
After the inspection and provisional repairs in Alicante, the vessel was allowed to sail
to La Coruña for permanent repairs. Three months after the detention, the vessel
changed owner and flag. The new owner decided to rename the ship Brigo. Currently the
vessel is flying the Madeira flag.
5A.18(xi) The M Trans I
Type of vessel: General cargo
Flag: Cambodia
Name of vessel: MV M Trans I
Date of detention: February 28 2000
Place of detention: Salerno, Italy
Cause of detention: The vessel was unknown in the Paris MOU database; therefore it
was inspected as a priority by the PSC authorities in Italy.
The vessel had certificates on board that indicated that they were issued by the Kingdom
of Cambodia or by the classification society, International Naval Survey Bureau. During
the inspection, it became clear that all certificates had been recently issued, on
December 15 1999.
175
5.115
5.115
REGIONAL PORT STATE CONTROL AGREEMENTS
Despite all these documents, during the inspection numerous deficiencies were
found:
— In the area of fire detection, poorly maintained portable fire extinguishers, not of
the approved type, were found; the fireman’s outfit was incomplete; further
maintenance had to be carried out on the main fire line, the CO2 line, fire
dampers, and other deficiencies.
— Most deficiencies recorded were found in the life-saving appliances. The
liferafts were not properly stowed or marked and the operational instructions
were missing; there was no evidence on board that the liferafts were periodically
surveyed; the embarkation ladders were missing; lifebuoys were missing or
needed to be renewed, and should have been properly marked with the name of
the vessel and the port of registry; and several lifejackets were also missing.
— On the bridge, several nautical publications were missing, such as the current
edition of the List of Lights, the Notice to Mariners, tide tables and nautical
almanac. Other books were not properly approved, such as the Ship Oil
Pollution and Emergency Plan, cargo securing manual and stability information
booklet. The navigational charts were outdated or missing.
— There was no evidence that periodical inspections of the safety equipment or the
safety drills had been performed.
— The load line marks were not visible.
— Emergency lighting was out of order.
— The ship’s deck and structure were heavily corroded.
— The level of dirtiness in the engine room could have created a fire hazard.
According to procedure, the PSC authority informed the flag State—the Kingdom of
Cambodia—and the classification society—International Naval Survey Bureau—which
apparently issued the ship’s certificates. However, both these organizations said that
they had never heard of the M Trans I. The administration of the Kingdom of Cambodia
expressed clearly that the vessel was not entitled to fly the Cambodian flag.
Since the vessel had sailed with fraudulent certificates, the case was investigated by the
Italian PSC authorities, which ascertained that the vessel’s tonnage, IMO number and
date of build were also faked. Salerno Port Control came to believe that the vessel was
really the 1,179 gt, Georgia-flagged Primo (ex M/N Eka, ex M/N Engure under Soviet
Union flag), built in Budapest in 1964.
At the time of the last report—February 28 2000—the M Trans I was still being held in
the port of Salerno, almost a year after first having been detained.
5A.19 Paris MOU on the internet
5.116
At the end of the summer of 1997, the official internet site of the Paris MOU was
launched (www.parismou.org). The site contains:
—
—
—
—
—
—
general information on port State control;
an electronic copy of the annual report;
downloadable text of the Paris MOU;
contact addresses of the participating maritime authorities;
a database of detained ships, including downloadable lists of detentions;
important PSC-related news items.
176
THE ACUERDO DE VIÑA DEL MAR AGREEMENT
1992
5.120
In 2000 and 2001 the Paris MOU website underwent major changes and began to
incorporate a new database for PSC inspections, which is updated every week, and
up-to-date monthly statistics.
In 2002 the following information was added to the site; including:
— appeal procedures of the MOU members, which the owner is entitled to in case
of detention;
— guidance for flag States and classification societies on obtaining review of a
detention;
— a calculator to establish the TF for a particular ship;
— ships that have been banned from the region.
5B THE ACUERDO DE VIÑA DEL MAR AGREEMENT ON PORT
STATE CONTROL 1992 (LATIN AMERICAN AGREEMENT)
5B.1 Introduction
The maritime authorities of the region adopted the Latin American Agreement on
Port State Control of Vessels on November 5 1992. The agreement was signed in Viña
del Mar, Chile.
5.117
5B.2 Member States
The member States are as follows: Argentina, Bolivia, Brazil, Chile, Colombia, Cuba,
Ecuador, Mexico, Panama, Peru, Uruguay and Venezuela.
5.118
5B.3 Basic principles
The agreement aims to prevent the operation of deficient vessels in the region in order
to avoid potential risks. Its goal is to maintain an efficient and harmonized system of
surveys to verify that foreign vessels operating in the region meet safety standards
contained in the IMO Conventions.
The Agreement emphasizes that the maritime authorities have principal responsibility
for the effective application of international standards to ships flying their flag. Like the
other regional agreements, it also recognizes the “need for effective action of Port States
in order to prevent the operation of deficient ships”. The Agreement acknowledges the
objectives of the Operative Network of Regional Maritime Co-operation among the
maritime authorities of South America, Mexico, Cuba and Panama (ROCRAM) and
other South American regional resolutions.
In order to avoid unfair competition between ports, similar treatment is conferred to
all vessels, disregarding flag.
5.119
5B.4 Structure
The executive body of the Latin American Agreement is the Port State Control
Committee, which consists of the maritime authorities of the member States. The
177
5.120
5.120
REGIONAL PORT STATE CONTROL AGREEMENTS
committee adopts policies to achieve the goals of the Agreement and it meets once a
year, or at shorter intervals if necessary.
The Secretariat is permanent and is located at Argentinian Coast Guard
Headquarters.
The Argentinian Coast Guard, based in Buenos Aires, arranges administrative
procedures, coordination and publication of statistics and also the development of a
regional database.
The results of the surveys performed at the region’s ports are processed by the
information centre of the agreement (CIALA). The database’s updated information
allows maritime authorities to know the technical background information of a specific
vessel, in order to decide whether the ship should be surveyed or not. It also offers a
general overview on the condition of the vessels operating in the region.
5B.5 Relevant instruments
5.121
When surveying foreign vessels at ports in the region, maritime authorities require
ships to meet the standards contained in the following Conventions, also known as the
“pertinent instruments”:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
International Convention on Load Lines 1966 (LL 1966);
International Convention for the Safety of Life at Sea 1974 (SOLAS 1974);
1978 Protocol Relating to the International Convention for the Safety of Life at
Sea 1974 (1978 SOLAS Protocol);
International Convention for the Prevention of Pollution from Ships 1973,
amended by 1978 Protocol (MARPOL 73/78);
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW 1978);
Convention on International Regulations to Prevent Collisions at Sea 1972
(COLREG 72);
International Convention on Tonnage Measurement of Vessels 1969 (Tonnage 1969).
Member States will apply the above-mentioned Conventions that are in force and to
which they are a party. The amendments to these Conventions will be applied if they are
in force and accepted by the member States.
5B.6 Target rate
5.122
Every year, maritime authorities survey at least 15 per cent of the total number of
foreign vessels entering ports, as based on a recent representative period of 12 months.
5B.7 Ship selection criteria
5.123
The maritime authorities seek to avoid inspecting ships that have been inspected by
any of the other maritime authorities during the previous six months, unless there is a
report or notification by another maritime authority or any person or organization
interested in maintaining the safety of vessel operations or preventing pollution; or
unless there exist clear indications of the need for an inspection. The frequency of
178
THE ACUERDO DE VIÑA DEL MAR AGREEMENT
1992
5.126
inspections shall not apply to vessels mentioned in section 3.4 of the Agreement. For
these vessels the inspectors carry out inspections as they deem proper.
Section 3.4 states that, when selecting ships for survey, the inspectors should pay
special attention to:
(i)
(ii)
(iii)
passenger ships, ro-ro ships and bulk carriers;
ships that may present a special hazard, for instance oil tankers, gas carriers,
chemical tankers and ships carrying dangerous and/or harmful substances in
packaged form;
ships that have had several recent deficiencies.
Section 3.2 states that, in fulfilling their obligations, the inspectors shall go on board
the ship in order to check the validity of the relevant certificates and documents, as well
as the general condition of the ship, its equipment and crew, including compliance with
operational requirements on board. In the absence of valid certificates or documents, or
if there exist clear indications that lead the inspectors to consider that the ship, its
equipment or crew do not basically meet the provisions of a pertinent instrument, then a
more detailed survey should be carried out. All surveys are carried out in accordance
with the guidelines set out for the inspectors at Annex 1 of the Agreement.
5.124
5B.8 Inspection
In fulfilling their obligations, maritime authorities shall carry out inspections to
foreign vessels calling at their ports, and will employ PSCOs for such ends. These
inspections may be performed according to:
(i)
(ii)
(iii)
5.125
the initiative of the maritime authority;
a report or notification from another maritime authority;
a report or complaint by the master, a crew member or any person or
organization interested in maintaining the safety of the vessel, its crew and
passengers, or protecting the marine environment, unless the pertinent
maritime authority considers that the report or the complaint is clearly
groundless.
Inspections consist of a visit on board the vessel in order to check the validity of the
pertinent certificates and documents, as well as the general condition of the vessel, its
equipment and crew. In the absence of valid certificates or documents, or if there exist
clear indications that the vessel, its equipment or crew do not basically meet the
provisions of a pertinent instrument, a more detailed inspection shall be carried out. The
maritime authorities, in their control procedures, should also include compliance with
operational requirements on board the vessel. Inspections can be carried out pursuant to
Annex 1.
After completion of an inspection, the master will receive a document stating the
results thereof, details on any action taken by the PSCO, and a list of corrective measures
to be implemented by the master.
5B.9 Grounds for a more detailed inspection
Maritime authorities shall consider as “clear indications” to perform a more detailed
inspection, inter alia, the examples detailed in Annex 1. However, none of the provisions
179
5.126
5.126
REGIONAL PORT STATE CONTROL AGREEMENTS
shall be construed as a limitation on maritime authorities’ power to take measures within
their jurisdiction as regards any case connected to the pertinent instruments.
The agreement states that the inspectors shall consider, among others, the following
as “clear grounds”:
— vital equipment is not found on board or it does not comply with the provisions
of the Conventions;
— one or several certificates are found to be clearly invalid;
— evidence that logbook, manuals and other required documents for the vessel are
not on board, are not updated or are improperly updated;
— evidence, from the general appearance of the vessel or remarks by the PSCO,
that serious damage or deficiencies to the hull or structure are found which may
pose a risk to the vessel’s structural integrity, watertightness and
weathertightness;
— evidence, from the general appearance of the vessel or remarks by the PSCO,
that serious deficiencies relating to safety, pollution prevention or navigation
equipment are found;
— information or evidence that the master or crew are not familiar with vital
operations on board in connection with vessel safety or pollution prevention, or
that such operations have not been performed;
— evidence that crew members are unable to communicate between themselves or
with other persons on board;
— lack of updated muster list, firefighting system plan and, in the case of passenger
vessels, damage control plan;
— sending out of a false distress alert not followed by the corresponding
cancellation procedures;
— report or complaint filed stating that the vessel may have deficiencies.
5B.10 No more favourable treatment
5.127
Ships flying the flag of a State that is not a party to the pertinent instruments will be
inspected in the same way as provided for ships to which pertinent instruments are
applicable. The surveyors are asked to enforce the provisions in such a manner that the
ships authorized to fly the flag of a State that is not a party to the Convention concerned
shall not be granted more favourable treatment than ships that are.
5B.11 Ships below Convention size
5.128
The guidelines on ships below 500 gt are stated under Annex 1, sections 4.2 and 4.3 of
the Agreement.
Section 4.2 states:
“Although a relevant instrument is not applicable to a ship below 500 gt, the surveyor’s task will be
to assess whether the ship is of an acceptable standard in regard to safety or the environment. In
making that assessment the surveyor will take due account of such factors as the length and nature
of the intended voyage or service, the size and type of the ship, the equipment provided and the
nature of the cargo.”
Section 4.3 states:
180
THE ACUERDO DE VIÑA DEL MAR AGREEMENT
1992
5.130
“In the exercise of his functions under paragraph 4.2 the surveyor should be guided by any of the
certificates and other documents issued by the flag State. The surveyor will, in the light of such
certificates and documents and in his general impression of the ship, use his professional
judgement in deciding whether and in what respects the ship will receive a more detailed
inspection, taking into account the factors mentioned in paragraph 4.2. When carrying out a more
detailed inspection the surveyor will, to the extent he deems necessary, pay attention to items listed
in paragraph 4.4. The list is not considered exhaustive but is intended to give an exemplification of
relevant items.”
5B.12 Minimum manning and certification requirements
The clauses on manning standards and certification show the relationship between
flag State and port State control. During the inspection of the manning of a foreign ship,
the port State has to take into account the flag State’s minimum manning requirements.
Where this is in doubt, the flag State should be consulted.
Annex 1, section 3.2.1 states:
5.129
“If a ship is manned in accordance with a manning document or equivalent document issued by
the vessel flag State, the surveyor should accept that the ship is safely manned unless the document
has been issued without regard to the principles contained in the relevant instruments and in the
IMO Guidelines for the Application of Principles of Safe Manning. In this last case the surveyor
must consult with the flag State.”
Annex 1, section 3.2.2 states:
“If the crew member or composition does not conform to the minimum manning document, the
port State should request the flag State its opinion whether or not the ship can sail with the actual
number of the crew and its composition. The request should be made as soon as possible. The
reply, if any, from the flag State should be confirmed by telex or fax. If the crew number and
composition is not in accordance with the manning document or the flag State does not confirm
that the ship could sail under such condition, the ship may be detained.”
Annex 1, section 3.2.3 states:
“If the ship does not carry a safe manning document or equivalent, the port State should request
the flag State to specify the required number of the crew and its composition and to issue a
document as soon as possible.
In case the number or composition of the crew does not conform to the directions received from
the flag State, action may be taken pursuant to clause 3.2.2; the ship may be detained. If the flag
State does not respond to the request, this will be considered as a clear ground for a more detailed
inspection to ensure that the number and composition of the crew are in accordance with the
principles laid down in paragraph 3.1. The ship will only be allowed to proceed if it is safe to do so,
taking into account the criteria for detention set out in the agreement.
In any such case, the minimum standards to be applied will be no more stringent than those
applied to ships flying the flag of the port State. The lack of a safe manning document will be
reported as a deficiency.”
5B.13 Detention
Annex 1, section 1.2, sets out the detention criteria. In the case of deficiencies that are
clearly hazardous to safety or the marine environment, inspectors have to ensure that the
hazard is removed before the ship is allowed to proceed to sea. For this purpose, the
inspector will take appropriate action, which may include the ship’s detention.
When deciding whether deficiencies found on the vessel are serious enough to warrant
its detention, the PSCO shall verify that the vessel:
181
5.130
5.130
REGIONAL PORT STATE CONTROL AGREEMENTS
— has the corresponding valid documentation;
— has the manning required by the minimum safety manning document.
During the inspection, the PSCO shall also check whether the vessel or its crew can
perform the following operations throughout the intended voyage:
— navigation under safety conditions;
— cargo handling and transportation, and verification of cargo condition under
safety conditions;
— engine room operations under safety conditions;
— maintaining the vessel’s propulsion and steering;
— efficient firefighting operations in any part of the vessel, if necessary;
— abandonment of ship quickly and safely, and performing salvage operations, if
necessary;
— marine environment pollution prevention;
— maintaining proper stability;
— maintaining proper watertightness;
— communications in dangerous situations, if necessary.
5.131
If the result of any of the above verifications is negative, then the possibility of
detaining the vessel will be considered seriously, taking into account all deficiencies
found. A combination of less serious deficiencies may also warrant the vessel’s
detention.
Lack of valid certificates as set forth in the pertinent instruments may warrant the
vessel’s detention. However, it has to be remembered that vessels flying the flag of States
that are not a party to the Convention or that have not implemented a pertinent
instrument are not required to carry the certificates established by the said Convention
or pertinent instrument. Therefore, the lack of required certificates may not be in itself a
reason to detain the vessel, although according to the “no more favourable treatment”
principle, essential provisions should be complied with before the vessel sails.43
Under the Agreement, a list of deficiencies is provided under Conventions or codes in
order to assist PSCOs during the inspection. These deficiencies are considered serious
enough to warrant the vessel’s detention. The descriptive list provided under Annex 1,
section 1.2.5 includes, without limitation, examples on different aspects to be taken into
account.
Following a detention, the maritime authority must make the necessary communications according to the requirements on port State control notification as detailed in
Annex 3. The flag State will be informed and, if an oral communication is made, written
confirmation should be sent subsequently. If applicable, recognized organizations that
issued pertinent certificates on behalf of the flag State must also be notified.
Where deficiencies cannot be remedied at the port of inspection, the maritime
authority may allow the ship to proceed to another port, subject to any appropriate
conditions determined by that maritime authority with a view to making the ship safe to
proceed without unreasonable danger to safety or the environment. As stated in section
3.9, in such cases the maritime authority will notify the competent maritime authority of
the region State where the next port of call of the vessel is situated, the flag State, and the
recognized organization, if applicable, according to the requirements on port State
control notification and those set forth in Annex 2.
43. Latin American Agreement on Port State Control 1992, Annex 1, section 1.2.4.
182
THE ACUERDO DE VIÑA DEL MAR AGREEMENT
1992
5.134
5B.14 Right of appeal
The Latin American Agreement does not refer to any right of appeal; instead there is a
reference with regard to compensation provided in the provisions of the pertinent
instruments under section 3.11:
5.132
“When exercising control within the framework of the Agreement, Maritime Authorities shall
avoid unduly detaining or delaying a vessel, as far as possible. No provision in this agreement shall
affect the rights set forth in the provisions of the pertinent instruments as regards compensation in
the case of undue detention or delay of a vessel.”
5B.15 Codes for action taken
The codes for actions taken are as follows:
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
5.133
00 no action taken
10 deficiency rectified
12 all deficiencies rectified
15 deficiencies to be rectified at next port
16 rectify within 14 days
17 master instructed to rectify deficiencies before departure
20 ship delayed to rectify deficiencies
25 ship allowed to sail after delay
30 ship retained
35 detention suspended (specify date)
40 next port informed
45 next port informed to re-detain
50 flag State/consul informed
55 flag State consulted
60 region State informed
70 classification society informed
80 temporary substitution of equipment
85 investigation of violations of discharge provisions (MARPOL 73/78)
95 letter of warning issued
96 letter of warning withdrawn
99 others (specify in clear text)
5B.16 Detention information
When a party to a pertinent Convention performs an inspection leading to detention,
reports pursuant to SOLAS 1974, Chapter I, reg. 19; MARPOL 73/78, Chapter 11;
LL66, Chapter 21; or STCW 1978/95, Chapter X, shall be sent to the IMO.
Each message must contain the following information:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
name of the issuing authority;
vessel name;
vessel flag;
type of vessel;
call sign;
IMO number;
gross tonnage;
183
5.134
5.134
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
REGIONAL PORT STATE CONTROL AGREEMENTS
year built;
date of inspection;
place of inspection;
classification society;
type of inspection;
whether the classification society issued any statutory certificates;
deadweight;
company;
relevant certificates;
issuing authority title, issue and expiration date;
deficiencies;
whether ship retained;
supporting documents.
5C THE MEMORANDUM OF UNDERSTANDING ON PORT
STATE CONTROL IN THE ASIA-PACIFIC REGION 1993
(TOKYO MOU)
5C.1 Introduction
5.135
Encouraged by the successful experience of the Paris MOU, the maritime authorities
in the Asia-Pacific region started to work together in 1992 to explore ways to establish a
regional co-operative system on port State control. The first preparatory meeting was
convened at the initiative of the Japanese government on February 13 1992, in Tokyo.
During this meeting, the maritime authorities agreed to co-operate with each other to
promote port State control. However, they did not make any decision about developing
an MOU in the Asia-Pacific Region. At the second meeting in Sydney, Australia, in
November 1992, the authorities agreed to develop an MOU and also to set up an interim
secretariat in Australia. A further preparatory meeting was held in Canada and during
the fourth meeting in Tokyo, Japan, the Memorandum of Understanding on Port State
Control in the Asia-Pacific Region—or, in short, the Tokyo MOU—was concluded.
The Tokyo MOU has been signed by 18 maritime authorities in the Asia-Pacific region.
The Tokyo Memorandum came into effect from April 1 1994. According to its
provisions, those authorities that have signed and formally accepted the Memorandum
become members of the MOU.
Since its adoption, the Tokyo MOU has tended to follow the practices and procedures
of the Paris MOU where it has been considered appropriate to do so in the Asia-Pacific
region. A joint Paris/Tokyo MOU ministerial conference on port State control was held
in Canada in 1988. During the conference, a ministerial declaration was adopted by the
ministers from the Paris and Tokyo MOU regions. This included a commitment of close
co-operation between the two MOUs to achieve the aim of elimination of substandard
ships.
The main areas of co-operation and harmonization of port State control procedures
include the following:
— adoption of common criteria for the assessment of the responsibility of
recognized organizations for deficiencies of ships;
184
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.138
— development of common deficiency codes, lists of recognized organizations and
Convention references;
— harmonization of the criteria for detention;
— exchange of port State control data.
5C.2 Member States
The member States are as follows: Australia, Canada, Chile, China (including Hong
Kong), Fiji, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Papua New
Guinea, Philippines, Russian Federation, Singapore, Solomon Islands,44 Thailand,
Vanuatu and Vietnam.
5.136
5C.3 Basic principles
The main objective of the Memorandum is to establish an effective port State control
regime in the Asia-Pacific region, through co-operation and harmonization, to eliminate
substandard shipping so as to promote maritime safety, to protect the marine
environment and to safeguard working and living conditions on board.
Like the Paris MOU, the Tokyo MOU states that the principal responsibility for the
effective application of standards laid down in international instruments rests upon the
administrations under whose flag a ship is entitled to sail. However, it also recognizes
that effective action by port States is required to prevent the operation of substandard
ships.
5.137
5C.4 Structure
A Port State Control Committee was established to monitor and control the
implementation and ongoing operations of the Memorandum. The Committee consists
of representatives of the maritime authorities that have accepted the MOU and observer
representatives from the IMO, the ILO and the Economic and Social Commission for
Asia and the Pacific (ESCAP). Any other organization or authority which the
Committee may deem appropriate will be invited to participate without vote in the work
of the Committee.
The Tokyo MOU Secretariat, a permanent secretariat, was established in Tokyo as an
independent body to serve the Port State Control Committee. The secretariat became
operational in April 1994.
The Asia-Pacific Computerized Information System (APCIS) was originally located
in Canada and operated by the Canadian Coast Guard. In 1988, the Committee
recognized the need to modernize the system. The new systems were developed by
Canada and the Russian Federation. At its seventh meeting in 1999, the Committee
decided that the new APCIS should be located in Vladivostok, in the Russian
Federation. After preparatory work, APCIS 2000 commenced operation on January 1
2000.
APCIS is established for the purpose of exchanging information on port State
inspections. This information exchange makes information available to authorities on
44. Not yet accepted the Memorandum.
185
5.138
5.138
REGIONAL PORT STATE CONTROL AGREEMENTS
inspections of ships in other regional ports to assist them in their selection of
foreign-flagged ships to be inspected and their exercise of port State control on selected
ships. The system also provides effective information exchange facilities regarding port
State control in the region.
5C.5 Relevant instruments
5.139
For the purposes of the Tokyo MOU, the following are the relevant instruments on
which regional port State control is based:
— the International Convention on Load Lines 1966 (LL 66);
— the Protocol of 1988 relating to the International Convention on Load Lines
1966 (LL PROT 88);
— the International Convention for the Safety of Life at Sea 1974 and its Protocol
of 1978 (SOLAS 74/78);
— the International Convention for the Prevention of Pollution From Ships 1973,
as modified by the Protocol of 1978, as amended (MARPOL 73/78);
— the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978, as amended (STCW 78);
— the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
— the International Convention on Tonnage Measurement of Ships 1969
(Tonnage 69)
— the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147).
With respect to ILO 147, each authority will be guided by the instructions in Chapter
4 of the Asia-Pacific Port State Control Manual. The implementation of ILO 147 will
not require any alterations to structure or facilities involving accommodation for ships
whose keels were laid down before April 1 1994. Other relevant instruments will be
applied under the guidance provided in Chapter 3 of the Manual.
Member States will apply the above-mentioned Conventions that are in force and to
which they are a Party. The amendments to these Conventions will be applied if they are
in force and accepted by the member States.
During port State control, authorities will not impose standards on foreign vessels that
are in excess of standards applicable to ships flying the flag of that port State.
5C.6 Target rate
5.140
Under the Tokyo MOU, the primary target inspection rate was stated as 50 per cent.
In 1994 the overall regional inspection rate was 32 per cent; in 1995 the figure was 39 per
cent; and 1996 and 1997 it reached 50 per cent.
At present, each participating member of the Tokyo MOU must determine an
appropriate annual average percentage of individual foreign merchant ships to be
inspected. As a target, subject to subsequent review, the committee has requested that
each member authority “endeavour to attain” a regional inspection rate of 75 per cent of
the total number of ships operating in the region. The percentage is based on the number
of ships that entered regional ports during a recent base period to be decided by the
Committee.45
45. The Tokyo MOU 1993, section 1.4.
186
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.141
In the beginning, the Tokyo MOU did not have a targeting system. During the 9th
Port State Control Committee meeting, in November 2000, a task group, led by the
authority of the Republic of Korea, was established and requested to develop the MOU’s
ship targeting system, taking into account the targeting system used by the Paris MOU
and the US Coast Guard. During its 11th meeting, in June 2002, the Port State Control
Committee approved the Tokyo MOU ship targeting system. The elements of the
targeting system are basically similar to the targeting factors used by the Paris MOU.
The development of the targeting system will provide an useful tool to assist port State
control officers in making decision for selection of appropriate ships for inspection. The
implementation of the targeting system started on a trial basis at the beginning of 2003.
The Port State Control Committee reviewed the ship targeting system during its 12th
meeting. The committee modified the existing system and agreed to continue the trial
for a longer period, in order to gain more experience and analysis and for appropriate
future improvement. During its 13th meeting in February 2004, the Port State Control
Committee decided to introduce the ship targeting system formally as a tool for
assignment of priority inspection of ships from March 1 2004.
5C.7 Ship selection criteria
The member States of the Tokyo MOU seek to avoid inspecting ships that have been
inspected by any of the other member States within the previous six months, unless they
have clear grounds for inspection. However, the frequency of inspection does not apply
to the ships named in section 3.3. These are the vessels to which the authorities will pay
special attention in selecting ships for inspection:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
passenger ships, ro-ro ships and bulk carriers;
ships that may present a special hazard, including oil tankers, gas carriers,
chemical tankers and ships carrying harmful substances in packaged form;
ships visiting a port of a State, the authority of which is a signatory to the
Memorandum, for the first time or after an absence of 12 months or more;
ships flying the flag of a State appearing in the three-year rolling average table
of above-average delays and detentions in the annual report of the
Memorandum;
ships that have been permitted to leave the port of a State, the authority of
which is a signatory to the Memorandum, on the condition that the
deficiencies noted must be rectified within a specified period, upon the expiry
of such period;
ships that have been reported by pilots or port authorities as having deficiencies
that may prejudice their safe navigation;
ships carrying dangerous or polluting goods that have failed to report all
relevant information concerning the ship’s particulars, the ship’s movements
and concerning the dangerous or polluting goods being carried to the
competent authority of the port and coastal State;
ships that have been suspended from their class for safety reasons in the course
of the preceding six months;
ships proceeding to sea without complying with the conditions set by the port
State; and
types of ships identified by the committee from time to time as warranting
priority inspections.
187
5.141
5.141
REGIONAL PORT STATE CONTROL AGREEMENTS
The authorities will pay special attention to oil tankers and bulk carriers of 10 years of
age and over.
5C.8 Inspection
5.142
Under the MOU, port State control is carried out by inspectors acting under the
responsibility of the participating maritime authority to whom they report. Under
section. 3.1 of the Tokyo MOU, it is stated that the inspector will go on board a ship in
order to check the certificates and documents relevant for the purposes of the Tokyo
MOU. The inspectors will also conduct an inspection to satisfy themselves that the crew
and the overall condition of the ship, its equipment, machinery spaces and accommodation, and hygienic conditions on board, meet the provisions of the relevant
instruments. If valid certificates are not on board, or if there are “clear grounds” to
believe that the condition of a ship, its equipment, its on-board operational procedures
and compliance, or its crew, does not substantially meet the requirements of a relevant
Convention, a more detailed inspection will be carried out.
During its 10th meeting in 2001, the Port State Control Committee approved the
revised Port State Control Manual which provided PSCOs in the region with the
amended IMO Resolution A.787(19), new guidance information and other updated
references and contents. The revised Manual took effect on 1 January 1 2002.
5C.9 First inspection criteria
5.143
As a minimum, the inspectors will review the following relevant documentation
carried by the ship:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
International Tonnage Certificate (1969);
Passenger Ship Safety Certificate;
Cargo Ship Safety Construction Certificate;
Cargo Ship Safety Equipment Certificate;
Cargo Ship Radio Telegraphy Certificate;
Cargo Ship Radio Telephony Certificate;
Cargo Ship Safety Radio Certificate;
Exemption Certificate;
Cargo Ship Safety Certificate;
Document of Compliance (SOLAS 74, Reg. II–2/54);
dangerous goods special list or manifest, or detailed stowage plan;
Certificate of Fitness for the Carriage of Liquefied Gases in Bulk;
Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk;
International Oil Pollution Prevention Certificate;
International Pollution Prevention Certificate for the Carriage of Noxious
Substances in Bulk;
International Load Line Certificate or Exemption Certificate as
appropriate;
Oil Record Book, Parts I and II;
shipboard oil pollution emergency plan;
cargo record book;
188
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
(xxv)
(xxvi)
(xxvii)
(xxviii)
(xxix)
(xxx)
(xxxi)
(xxxii)
(xxxiii)
(xxxiv)
(xxxv)
5.144
minimum safe manning document;
certificate of competency;
medical certificates (see ILO Convention No.73);
stability information;
copy of Document of Compliance and Safety Management Certificate
issued in accordance with IMO Resolutions A.741(18) and A.788(19);
certificates as to the ship’s hull strength and machine installations issued
by classification society;
survey report files (in case of bulk carriers or oil tankers);
for ro-ro passenger ships, information on the A/A max ratio;
Document of Authorization for the Carriage of Grain;
Special Purpose Ships Safety Certificate;
High Speed Craft Safety Certificate and Permit to Operate High Speed
Craft;
Mobile Offshore Drilling Unity Safety Certificate;
for oil tankers, the record oil discharge monitoring control system for
ballast voyage;
the muster list, fire control plan and, for passenger ships, a damage control
plan;
ship’s logbook with respect to the records of tests and drills, and logs for
records of inspection and maintenance of life-saving appliances and
arrangements;
reports of previous PSC inspections.
The inspectors will also conduct an inspection in many areas on board in order to verify
that the overall condition of the ship (including the engine room and accommodation,
and including hygienic conditions, test drills, musters etc.) complies with the standards
required by the various certificates and international Conventions, including the
provisions of ILO 147 with regard to crew and minimum standards and the publication
entitled “Inspection of Labour Conditions on Board Ship: Guidelines for Procedure”.
Upon the request of another authority, any authority will endeavour to secure
evidence relating to suspended violations of the requirements on operational matters to
r.10 of COLREG 72 and MARPOL 73/78.
5C.10 Grounds for a more detailed inspection
Clear grounds for a more detailed inspection are, inter alia:
(i)
(ii)
(iii)
a report or notification by another authority;
a report or complaint by the master, a crew member, or any person or
organization with a legitimate interest in the safe operation of the ship,
shipboard living and working conditions or the prevention of pollution, unless
the authority concerned deems the report or complaint to be manifestly
unfounded;
other indications of serious deficiencies, having particular regard to Annex 1.
For the purpose of compliance with onboard operational requirements specific “clear
grounds” are:
189
5.144
5.144
(i)
(ii)
(iii)
(iv)
(v)
(vi)
REGIONAL PORT STATE CONTROL AGREEMENTS
evidence of operational shortcomings revealed during PSC procedures in
accordance with SOLAS 74, MARPOL 73/78 and STCW 1978;
evidence of cargo and other operations not being conducted safely or in
accordance with IMO guidelines;
involvement of the ship in incidents due to failure to comply with operational
requirements;
evidence, from the witnessing of a fire and abandon ship drill, that the crew are
not familiar with essential procedures;
absence of an up-to-date muster list;
indications that key crew members may not be able to communicate with each
other or with other persons on board.
Similarly to the Paris MOU, the Tokyo MOU, section 3.2.3, states that “Nothing in
these procedures should be construed as restricting the powers of the Authorities to take
measures within their jurisdiction in respect of any matter to which the relevant
instruments relate”.
5C.11 No more favourable treatment
5.145
During the implementation of a Convention standard, the authorities have to make
sure that no more favourable treatment is given to ships entitled to fly the flag of a State
that is not a party to that Convention. Such ships are subject to the same inspections and
the port inspectors follow the same guidelines.
5C.12 Detention
5.146
The main criteria for the detention of a ship under the Tokyo MOU is stated, in
section 3.7, as follows:
“In case of deficiencies which are clearly hazardous to safety, health or the environment, the
Authority will, except as provided in 3.8, ensure that the hazard is removed before the ship is
allowed to proceed to sea. For this purpose appropriate action will be taken, which may include
detention or a formal prohibition of a ship to continue an operation due to established deficiencies
which, individually or together, would render the continued operation hazardous. In the event of a
detention, the Authority will as soon as possible notify in writing the flag State or its consul or, in
his absence, its nearest diplomatic representative of all the circumstances in which intervention
was deemed necessary. Where the certifying authority is an organization other than a maritime
administration, the former will also be advised.”
If deficiencies that caused a detention cannot be remedied in the port of inspection,
the inspector may allow the ship concerned to proceed to the nearest appropriate repair
yard available. The repair yard would be decided by the master and the inspector and,
subject to the appropriate conditions, determined by the maritime authority of the port
of departure. Such conditions should ensure that the ship can proceed without risk to the
safety and health of the passengers or crew, or risk to other ships, or without being an
unreasonable threat of harm to the marine environment. In such circumstances the
inspectors and/or the repair yard will notify, in addition to the authorities mentioned
above, the authorities of the ship’s next port of call and any other authority as
appropriate,46 according to Chapter 7 of the Manual. The purpose of this notification is
46. The Tokyo MOU 1993, section 3.8.
190
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.149
to make sure that the given ship is denied entry throughout the region of the Tokyo
MOU.
If a ship that is allowed to proceed to the nearest repair yard proceeds to sea without
complying with the conditions agreed to by the authority of the port of inspection:
— the authority will immediately alert the next port, if known, the flag State, and all
other authorities it considers appropriate; and
— the ship will be detained at any port of authorities that have accepted the
Memorandum, until the company has provided evidence to the satisfaction of
the authority of the port State that the ship fully complies with all applicable
requirements of the relevant instruments.
5C.13 Right of appeal
Under section 3.15 of the Memorandum it is stated that:
5.147
“The company of a ship or its representative will have a right of appeal against a detention taken by
the authority of the port State. Initiation of the appeal process will not by itself cause the detention
to be suspended. The port State control officer should properly inform the master of the right of
appeal.”
5C.14 Codes for action taken
The codes for actions taken are as follows:
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
5.148
00 no action taken
10 deficiencies rectified
15 rectify deficiency at next port
16 rectify deficiency within 14 days
17 master instructed to rectify deficiency before departure
30 ship detained
35 detention raised
40 next port informed
50 flag administration/consul/flag maritime authority informed
55 flag administration/maritime authority consulted
60 region authority informed
70 classification society informed
80 temporary substitution of equipment
85 investigation of contravention of discharge provisions (MARPOL)
99 other (specify in clear text)
5C.15 Detention information
Under the Tokyo MOU, each authority undertakes to report on its inspections and
their results, under the procedures specified in the Memorandum.
At its 6th meeting in June 1998, the Port State Control Committee of the Tokyo
MOU decided to publish information on ships’ detentions on a quarterly basis,
commencing from the third quarter (July–September 1998). However, at its 7th
191
5.149
5.149
REGIONAL PORT STATE CONTROL AGREEMENTS
meeting in April 1999, the committee decided to publish ships’ detention information
every month.
Detention information published under this section includes the following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
5.150
IMO number;
ship’s name;
flag;
year of build;
type of ship;
classification society;
owner/operator;
place of detention;
date of detention;
date of release;
nature of deficiencies;
port authority
In the case of deficiencies not fully rectified or only provisionally repaired, a message
will be sent to the authority of the ship’s next port of call. Each message must contain the
following information:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi)
date;
from (country or region);
port;
to (country or region);
port;
a statement of deficiencies to be rectified;
name of ship;
IMO identification number (if available);
type of ship;
flag of ship;
call sign;
gross tonnage;
year of build;
issuing authority of relevant certificate(s);
date of departure;
estimated place and time of arrival;
nature of deficiencies;
action taken;
suggested action;
suggested action at next port of call;
name and facsimile number of sender.
During its 13th meeting in February 2004, the Tokyo MOU and the international
Equasis maritime database (see infra, Chapter 8) reached an understanding on a method
of publication of Tokyo MOU port State inspection data on the Equasis website. The
hyperlink between APCIS and Equasis will be developed and implemented in the near
future.
192
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.151
5C.16 Concentrated inspection campaigns
The first concentrated inspection campaign of the Tokyo MOU targeted ships to
which the ISM Code was applicable. The campaign was held concurrently with a similar
one run by the Paris MOU and covered the period from July 1 to September 30 1998.
During the campaign, a total of 1,820 inspections were carried out on ships to which the
ISM Code was applicable. A total of 63 detentions were made on 61 ships which were
either found without proper ISM Code certification or with major non-conformities in
ships’ safety management systems.
In order to facilitate and ensure implementation of GMDSS requirements, the Tokyo
MOU chose GMDSS compliance as the subject for its second concentrated inspection
campaign. The campaign ran from October 1 to December 31 1999. During the
campaign period, a total of 2,707 inspections were carried out by member authorities. A
total of 60 detentions were ordered on ships that had failed to comply with the GMDSS
requirements or where personnel lacked the necessary knowledge to operate the
GMDSS equipment.
A concentrated campaign on bulk carriers was held between September 1 and
November 30 2003. During the inspections, PSCOs used a standard questionnaire to
verify the main elements related to the structure and operation of bulk carriers. The
inspections were conducted in conjunction with routine PSC inspections and a total of
396 individual bulk carriers were inspected during the three-month campaign. A total of
18 bulk carriers meeting the relevant criteria were detained during the campaign.
Thirteen of the vessels detained (3.3 per cent) had structural or load-line-related
deficiencies that were considered serious enough to prevent sailing until remedial
actions were taken. The defects found were wide-ranging but included corrosion holes
in side shell frames and hatch covers; badly corroded bulkheads and deck longitudinals
in ballast tanks; and cracks in transverse webs and stiffeners. PSCOs further found
several hatch-cover securing cleats and air-pipe closing devices deficient. The remaining
five vessels were detained for non-compliance with Chapter VI and XII of SOLAS and
for miscellaneous firefighting and pollution-prevention deficiencies.
During its 13th meeting in February 2004, the Tokyo Port State Control Committee
considered and confirmed the guidelines and checklist for a concentrated inspection
campaign on operational requirements, scheduled for 2005. Starting from April 1 2004,
a letter of warning will be issued to ships to which the ISPS Code is applicable and which
are found not ready for compliance with the requirements of the Code. A concentrated
inspection campaign will also be carried out from July 1 to 30 September 30 2004,
simultaneously with the Paris MOU, using the same questionnaire.
193
5.151
5.151
REGIONAL PORT STATE CONTROL AGREEMENTS
5C.17 Examples of PSC inspection cases in different maritime authorities of
the Tokyo MOU
5C.17(i) Australia47
5.152
Type of vessel
Flag
Date of inspection
Port of inspection
Deficiencies
Action
Bulk carrier
Panama
Dec 1 2003
Port Lincoln
Unable to transmit
test call on MF/HF
DSC installation;
unit failed on
internal and
external test modes
Radio technician
attended. Master
to forward copy of
service report to
classification
society, Det
Norske Veritas, for
follow-up survey at
next port
Bulk carrier
Korea (South)
Nov 23 2003
Dampier
Cargo hold No.4
hatch covers
unable to seal.
Approximately 60
per cent of hatchcover cleats
defective or
missing
Classification
society surveyor
attended.
Deficiencies
rectified
Bulk carrier
Russian
Federation
Oct 22 2003
Bunbury
Top side tank
No.3 port ballast
tank aft bulkhead
holed and leaking
water from top side
tank No.4.
Oil pollution
prevention
equipment
defective. Fixed
CO2 fire
extinguishing
installation
defective
Classification
society surveyor
attended.
Condition of Class
issued for
permanent repairs
to be completed at
next port. Oil
pollution
prevention
equipment
deficiency rectified
General cargo/
multipurpose
ship
Netherlands
Sep 22 2003
Port Adelaide
MF/HF radio
installation
defective. Firerated door from
paint locker to
emergency fire
pump space access
trunkway removed
and missing. Steel
plating of
accommodation
structure holed
above main deck
level in way of
engine room
emergency escape
trunkway
Flag
administration
allowed vessel to
proceed to
Newcastle for
permanent repairs
to MF/HF radio.
Other serious
deficiencies
rectified
47. For
Detention.
more
examples,
see
http://www.amsa.gov.au/Shipping Safety/Port State Control/Ship
194
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.152
Type of vessel
Flag
Date of inspection
Port of inspection
Deficiencies
Action
Bulk carrier
Cyprus
Aug 20 2003
Newcastle
(The deficiencies
noted below were
evidence that the
vessel’s safety
management
system failed to
satisfy the
requirements of the
ISM Code.)
Emergency fire
pump not
pressurizing fire
main. Engineroom ventilation
fan dampers
defective. Engineroom fuel tank
remote closing
valves inoperable.
Engine-room oil
storage tank gauge
glass valves secured
open. Fire doors
throughout
accommodation
and engine room
secured open.
Forepeak ballasttank air-pipe
closing devices
broken
Classification
society surveyor
attended.
Deficiencies
rectified
General cargo/
multipurpose
ship
Papua New
Guinea
Jul 4 2003
Townsville
Flag State
endorsements not
held by all officers
required to meet
the minimum safe
manning specified
by flag State
Classification
society surveyor
attended.
Deficiencies
rectified
195
5.152
REGIONAL PORT STATE CONTROL AGREEMENTS
Type of vessel
Flag
Date of inspection
Port of inspection
Deficiencies
Action
General cargo/
multipurpose
ship
St Vincent and
the Grenadines
Jun 25 2003
Newcastle
Numerous water
ballast tank airvent-pipe closing
devices defective.
Numerous fuel/
lubrication/diesel
oil air-vent-pipe
closing devices
defective.
Company ISM
procedures not
adhered to due to
crew
incomprehension
of documented
working language
as noted at the
time of PSC
inspection.
Deck officers
unable to
satisfactorily
demonstrate
operation of
GMDSS
equipment
Classification
society surveyor
and ISM surveyor
attended.
Deficiencies
rectified
Bulk carrier
Cyprus
May 8 2003
Port Adelaide
Lifeboat launching
arrangements
defective. Leakage
from No.4 portside double bottom
tank into engine
room.
Maintenance of
ship and
equipment not in
accordance with
the ISM Code.
Main-deck
weathertight doors
defective.
Numerous loadline items, air-pipe
heads and
sounding-pipe
covers defective.
Hot water services
not available.
Drainage from
washbasins
disconnected.
Some toilets
without flushing
water.
Wet areas leaking
into living
accommodation.
Bathrooms and
alleyway scuppers
blocked. (cont.)
Classification
society surveyor
and ISM issuing
authority attended.
ISM deficiency to
be rectified within
three months. All
other serious
deficiencies
rectified
196
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
Type of vessel
Flag
Date of inspection
Port of inspection
Deficiencies
5.152
Action
Overloaded power
points and
dangerous
electrical fittings/
modifications
Bulk carrier
Turkey
Apr 21 2003
Port Hedland
Emergency fire
pump unable to
pressurise fire
main. No.3 engineroom ventilation
fire damper
inoperable
Deficiencies
rectified
Bulk carrier
Italy
Mar 14 2003
Newcastle
Water ballast tank
air-pipe closing
devices defective.
Port lifeboat
launching
arrangement
defective. Engineroom ventilation
fire dampers
defective. Engineroom fire escape
doors at steering
flat level secured
open
Classification
society surveyor
attended.
Temporary repairs
carried out on
lifeboat launching
arrangement and
one engine-room
ventilation fire
damper. Other
serious deficiencies
rectified
Refrigerated
cargo vessel
Singapore
Feb 27 2003
Port Lincoln
Port lifeboat
keel-plate shoe
attachments
heavily wasted.
Fire main holed in
two places along
foredeck. Majority
of float valves for
water ballast
double-bottom
tanks broken or
seized.
Classification
society surveyor
attended.
Deficiencies
rectified
197
5.152
REGIONAL PORT STATE CONTROL AGREEMENTS
Type of vessel
Flag
Date of inspection
Port of inspection
Deficiencies
Action
Bulk carrier
Taiwan
Jan 20 2003
Dampier
Ballast water
discharge
contaminated with
oil
Classification
Society surveyor
attended.
Condition of Class
issued for ballast
piping in bilge well
at forward engineroom bulkhead to
be specially
examined and dealt
with at next port of
cargo discharge
5C.17(ii) Hong Kong48
5.153
Type of vessel
Flag
Place of detention
Date of detention
Date of release
Deficiencies
Oil tanker
Republic of
Sierra Leone
Hong Kong
Dec 17 2003
Dec 23 2003
Ship’s certificates
and documents: all
Convention
certificates issued
without IMO
number; IOPP
certificate found
without Form B.
STCW: certificates
of master and
officer, all deck
officers and chief
engineer
certificates of
competency found
valid for nearcoastal operation.
However,
according to
minimum safe
manning
certificate, vessel
was for worldwide
trade.
MARPOL Annex I:
oil record book and
cargo record book
not on board.
(cont.)
48. For more examples see http://www.mardep.gov.hk/en/others/dlist.html.
198
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
Type of vessel
Flag
Place of detention
Date of detention
Date of release
5.153
Deficiencies
ISM:
documentation and
ISM manuals not
found on board.
Life-saving
appliances:
lifejackets found
without light/
whistle; one
liferaft’s service
date found expired,
two other liferafts
found missing;
most other
appliances found
expired and not
ready for
inspection, e.g.
smoke signals,
parachutes signals,
line-throwing
apparatus etc.;
rescue boat found
without engine and
in very poor
condition, and
rescue-boat
equipment not
ready for
inspection.
Firefighting
measures: partition
between engine
room and
accommodation
found with
opening.
LL: railing,
catwalks, ship side
railings detached;
forecastle at
starboard forward
found holed;
forecastle
watertight doors
(two) and access
hatch on forecastle
deck found holed/
with opening.
Radiocommunications:
EPIRB battery
found expired and
test certificate not
available for
inspection
199
5.153
REGIONAL PORT STATE CONTROL AGREEMENTS
Type of vessel
Flag
Place of detention
Date of detention
Date of release
Deficiencies
General cargo/
multipurpose
ship
Panama
Hong Kong
Nov 27 2003
Nov 28 2003
ISM:
documentation,
filing system poor;
various service
reports/records
related to ship’s
safety equipment
not properly filed
at relevant
location.
SOLAS: GMDSS
officers not familiar
with setting of
AVTEX receiver,
procedures to
cancel false distress
alert, and function
tests on GMDSS
equipment.
Firefighting
measures: oil-tank
air pipes’ wire
mesh missing
Cement carrier
Taiwan
Hong Kong
Oct 7 2003
Oct 7 2003
Life-saving
appliances:
lifeboats.
Stability, structure
and related
equipment:
emergency
lighting, batteries
and switches
Container ship
Singapore
Hong Kong
Sep 10 2003
Sep 10 2003
SOLAS: abandon
ship drills,
dangerous goods or
harmful substances
in packaged form.
ISM: emergency
preparedness
Life-saving
appliances: stowage
of rescue boats.
Firefighting
measures:
ventilation, fire
dampers, valves,
quick-closing
devices, mean of
control.
Radiocommunications:
functional
requirements
Gas carrier
Philippines
Hong Kong
Aug 22 2003
Aug 22 2003
Radiocommunications: functional
requirements.
Safety of
navigation: nautical
publications
200
PORT STATE CONTROL IN THE ASIA -PACIFIC REGION
5.153
Type of vessel
Flag
Place of detention
Date of detention
Date of release
Deficiencies
General cargo/
multipurpose
ship
Thailand
Hong Kong
Jul 31 2003
Aug 1 2003
Safety of
navigation: lights,
shapes, soundsignals.
Life-saving
appliances:
lifeboats.
Radiocommunications: MF/HF radio
installation
General cargo/
multipurpose
ship
Panama
Hong Kong
Jun 5 2003
Jun 6 2003
Life-saving
appliances: linethrowing appliance
Cement carrier
Belize
Hong Kong
May 4 2003
May 5 2003
STCW: certificates
for radio
personnel.
Radiocommunications: functional
requirements.
Firefighting
measures:
ventilation, fire
dampers, valves,
quick-closing
devices, means of
control
Container ship
Malta
Hong Kong
Apr 15 2003
Apr 16 2003
Life-saving
appliances: lifeboat
inventory, port
non-propelled
lifeboat mast did
not have securing
arrangement.
Radiocommunications: GMDSS
MF/HF radio
equipment
displayed error
messages 7.1 and
7.8 during DSC
coast station test
using 8414.5 &
6312 MHz
Container ship
Singapore
Hong Kong
Mar 1 2003
Mar 1 2003
Radiocommunications: MF/HF radio
equipment failed to
send DSC test to
coast station, with
indication tuner
error and “error
(90) — modern
circuit error”
Chemical tanker
Korea (South)
Hong Kong
Feb 27 2003
Feb 28 2003
Firefighting
measures:
emergency fire
pump could not be
readily started
within reasonable
time. (cont.)
201
5.153
Type of vessel
REGIONAL PORT STATE CONTROL AGREEMENTS
Flag
Place of detention
Date of detention
Date of release
Deficiencies
Propulsion and
auxiliary machinery:
emergency air
compressor could
not be started.
Safety of
navigation: Charts
1918, 1919, 3280
on board were not
the latest editions.
ISM: essential
instructions prior
to sailing were not
given to chief
officer, third officer
or first able
seaman; it was not
evident that the
Master was fully
conversant with
company’s safety
management
system
General cargo/
multipurpose
ship
Russian
Federation
Hong Kong
Jan 21 2003
Jan 21 2003
MARPOL Annex I:
oil filtering
equipment alarm
inoperative
5D MEMORANDUM OF UNDERSTANDING ON PORT STATE
CONTROL IN THE CARIBBEAN REGION 1996 (CARIBBEAN
MOU)
5D.1 Member States
5.154
The member States are as follows: Anguilla, Antigua and Barbuda, Aruba, Bahamas,
Barbados, Bermuda, British Virgin Islands, Cayman Islands, Dominica, Grenada,
Guyana, Jamaica, Montserrat, Netherlands Antilles, St Kitts and Nevis, Saint Lucia, St
Vincent and the Grenadines, Suriname, Trinidad and Tobago, Turks and Caicos
Islands.
5D.2 Basic principles
5.155
Like other regional agreements, the Caribbean MOU emphasizes that the principal
responsibility for the effective application of standards laid down in international
instruments rests upon the authorities of the State whose flag a ship is entitled to fly. It
also states that effective action by port States is required to prevent the operation of
substandard ships.
202
PORT STATE CONTROL IN THE CARIBBEAN REGION
5.158
5D.3 Structure
The Caribbean Port State Control Committee consists of the representatives of the
participating maritime authorities. It meets once a year, or at more frequent intervals if
necessary.
Representatives of the IMO, the ILO and the Caribbean Community Secretariat
participate as observers at the meetings of the committee.
A secretariat has been established in Barbados, and the Caribbean Information
Centre (CMIC) was established in Curaçao, Netherlands Antilles. In 2003, Surinam
became a full member of Caribbean MOU and during its 8th meeting in October 2003
the Caribbean MOU committee agreed to relocate the information centre from Curaçao
to Surinam following agreement to accept an offer from Transport of Canada to
implement and host the Caribbean information system within the existing Canadian
port State control system.
5.156
5D.4 Code of safety for cargo ships operating in the Caribbean
During the development of the Caribbean MOU it was recognized that the majority of
substandard ships operating in the region were less than 500 gt and that there was no
detailed international standard for this class of ship, as they fell mainly outside the ambit
of the international conventions. Consequently, the Code of Safety for Caribbean Cargo
Ships (CCSS Code) was adopted by the third preparatory meeting on port State control
for the Caribbean Region on February 5–9 1996. The Code provides guidelines for
inspections to be carried out on Caribbean cargo ships below 500 gt. The CCSS Code is
in principle applicable to new ships, and is to be applied by the administration as far as is
practicable and reasonable to existing ships. The provisions specified in the Code take
into account, as far as reasonable and practicable, the provisions under the Conventions
set out below, which, together, are called the “relevant instruments”.
The CCSS Code can be thought of as SOLAS Regulations for small ships, and it is
laid out in the same way as the Regulations annexed to the SOLAS Convention.
Throughout the development of the Code, it was recognized that it must be based
upon the principles laid down in international Conventions; and furthermore that
international safety standards were rapidly evolving and that the Code should not
remain static. The Code will be reviewed periodically, taking into account both
experience and developments in international maritime safety standards. On January 29
1997, the Caribbean Port State Control Committee adopted amendments to the CCSS
Code. During its 8th meeting in October 2003, the committee discussed further
amendments to the Code and reached an agreement.. The inclusion of the Code as a
relevant instrument of the Memorandum of Understanding was also agreed. The
committee also discussed the adoption of a Maritime Security Code for cargo vessels
with a gross tonnage of between 100 and 500 gt, operating in the Caribbean region.
The provisions specified in the Code take into account, as far as it is reasonable and
practicable, the provisions specified in the Conventions listed in the following section.
5.157
5D.5 Relevant instruments
For the purposes of the Memorandum, “relevant instruments” are the following
instruments:
203
5.158
5.158
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
REGIONAL PORT STATE CONTROL AGREEMENTS
the International Convention on Load Lines 1966 (LL 66);
the International Convention for the Safety of Life at Sea 1974 (SOLAS
1974);
the Protocol of 1978 Relating to the International Convention for the Safety of
Life at Sea 1974;
the International Convention for the Prevention of Pollution From Ships
1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 1978);
the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147).
5D.6 Target rate for inspection
5.159
Each participating maritime authority is asked to reach, within a period of three years
from the coming into effect of the Memorandum, a minimum annual total of inspections
of 15 per cent of the estimated number of individual foreign merchant ships that entered
its ports during a recent representative period of 12 months.
5D.7 No more favourable treatment
5.160
Ships entitled to fly the flag of a State that is not a party to a relevant Convention and,
therefore, not provided with certificates representing prima facie evidence of satisfactory
conditions on board, shall receive a detailed inspection. In making such an inspection,
the surveyor should follow the same guidelines as provided for ships to which the
relevant Conventions are applicable.
The condition of such a ship, its equipment, and the certification of the crew and its
number and composition shall be compatible with the aims of the provisions of relevant
instruments. Otherwise, the ship shall be subject to such restrictions as are necessary to
obtain a comparable level of safety.
5D.8 Ships for inspection
5.161
The participating members of the Caribbean MOU seek to avoid inspecting ships that
have been inspected by any of the other authorities within the previous six months,
unless they have clear grounds for inspection or they fall into the categories of ships listed
at section 3.3 of the MOU, to which they are asked to pay special attention. These vessels
are:
(i)
(ii)
(iii)
(iv)
passenger ships, ro-ro ships, bulk carriers, ships of traditional build and ships
below 500 gt;
ships that may present a special hazard, for instance oil tankers, gas carriers,
chemical tankers and ships carrying harmful substances in packaged form;
ships flying the flag of a State appearing in the three-year rolling average table
of above-average detentions in the annual report of the Memorandum;
ships that have had several deficiencies.
204
PORT STATE CONTROL IN THE CARIBBEAN REGION
5.163
5D.9 First inspections
Under section 3.1, the inspector’s survey consists of a visit on board a ship in order to
check the certificates and documents in respect of those instruments relevant for the
purposes of the Memorandum. In the absence of valid certificates or documents, or if
there are clear grounds for believing that the condition of a ship or of its equipment or its
crew do not substantially meet the requirements of a relevant instrument, a more
detailed inspection will be carried out. In these initial review and control procedures, the
inspectors include compliance with on-board operational requirements.
The initial surveys are carried out in accordance with the guidelines specified in
Annexes 1A and 1B:
5.162
“In taking a decision concerning the rectification of a deficiency or detention of a ship, the
surveyor shall take into consideration the results of the detailed inspection carried out in
accordance with Section 3.
The surveyor shall exercise his professional judgements in determining whether to detain the
ship until the deficiencies are corrected or to allow it to sail with certain deficiencies without
unreasonable danger to safety, health, or the environment, having regard to the particular
circumstances of the intended voyage. As regards minimum manning standards and the
provisions of ILO Convention No.147, special procedures shall be observed set out in sections 3
and 4 of Annex 1A.”
5D.10 Clear grounds
Clear grounds for a more detailed inspection are, inter alia:
— a report or notification by another authority;
— a report or complaint by the master, a crew member, or any person or
organization with a legitimate interest in the safe operation of the ship,
shipboard living and working conditions or the prevention of pollution, unless
the authority concerned deems the report or complaint to be manifestly
unfounded; or
— other indications of serious deficiencies, having regard in particular to Annexes
1A and 1B.
For the purposes of compliance with on-board operational requirements, specific clear
grounds are the following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
evidence of operational shortcomings revealed during port State control
procedures in accordance with SOLAS 74, MARPOL 73/78 and STCW
1978, as amended;
evidence of cargo and other operations not being conducted safely or in
accordance with IMO guidelines;
involvement of the ship in incidents due to failure to comply with operational
requirements;
evidence, from the witnessing of a fire and abandon ship drill, that the crew are
not familiar with essential procedures;
absence of an up-to-date muster list;
indications that crew members may not be able to communicate with each
other or with other persons on board.
205
5.163
5.163
REGIONAL PORT STATE CONTROL AGREEMENTS
Like other regional agreements, the Caribbean MOU states that “nothing in these
procedures should be construed as restricting the powers of the authorities to take
measures within its jurisdiction in respect of any matter to which the relevant
instruments relate”.
As with the Latin American Agreement, under the Caribbean MOU the relationship
between flag State and port State control is evidenced under sections 3.2 and 3.3.
5D.11 Detention
5.164
In the case of deficiencies posing a clear risk to safety, health or the environment,
inspectors have to ensure that the risk is eliminated before authorizing the ship to sail.
For this purpose, appropriate action will be taken, which may include detention.
5D.12 Detention information
5.165
In the case of deficiencies not fully rectified or only provisionally repaired, a message
shall be sent to the competent authority of the region State where the next port of call of
the ship is situated.
Each message must contain the following information:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
date;
from (country);
port;
to (country);
port;
a statement of deficiencies to be rectified;
name of ship;
IMO identification number (if available);
type of ship;
flag of ship;
call sign;
gross tonnage;
year of build;
issuing authority of relevant certificate(s);
date of departure;
estimated place and time of arrival;
nature of deficiencies;
suggested action;
suggested action at next port of call;
name and facsimile number of sender.
5D.13 Codes for actions taken
5.166
The codes for actions taken are as follows:
— 00 no action taken
— 10 deficiency rectified
206
PORT STATE CONTROL IN THE MEDITERRANEAN REGION
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
5.169
12 all deficiencies rectified
15 rectify deficiency at next port
16 rectify deficiency within 14 days
17 master instructed to rectify deficiency before departure
20 ship delayed to rectify deficiencies
25 ship allowed to sail after delay
30 detainable deficiency
35 detention raised (and date specified)
36 ship allowed to sail after re-detention
40 next port informed
45 next port informed to re-detain
50 flag State/consul informed
55 flag State consulted
60 region State informed
70 classification society informed
80 temporary substitution of equipment
85 investigation of contravention of discharge provisions (MARPOL)
99 other (specify in clear text)
5E THE MEMORANDUM OF UNDERSTANDING ON PORT
STATE CONTROL IN THE MEDITERRANEAN REGION 1997
(MEDITERRANEAN MOU)
5E.1 Member States
The member States are: Algeria, Cyprus, Egypt, Israel, Lebanon, Malta, Morocco,
Tunisia, Turkey and the Palestinian Authority.
5.167
5E.2 Basic principles
Like other regional agreements, the Mediterranean MOU states that the principal
responsibility for the effective application of standards laid down in international
instruments rests upon the authorities of the State whose flag a ship is entitled to fly.
Similarly, it recognizes the need for effective action by port States to prevent the
operation of substandard ships.
5.168
5E.3 Relevant instruments
“Relevant instruments” under the Mediterranean MOU are as follows:
(i)
(ii)
(iii)
(iv)
the International Convention on Load Lines 1966 (LL 66);
the International Convention for the Safety of Life at Sea 1974 (SOLAS
1974);
the Protocol of 1978 relating to the International Convention for the Safety of
Life at Sea 1974;
the International Convention for the Prevention of Pollution from Ships 1973
as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);
207
5.169
5.169
(v)
(vi)
(vii)
REGIONAL PORT STATE CONTROL AGREEMENTS
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 1978);
the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147).
With respect to ILO 147, each authority will apply the instructions in Annex I for the
application of the ILO publication “Inspection of Labour Conditions on board Ship:
Guidelines for Procedure”.
Each and every maritime authority is under obligation to apply the Conventions that
are in force and to which its State is a party. If there are amendments to these
Conventions, each maritime authority shall apply those amendments in force which
have been accepted by its State. An instrument so amended shall be deemed a “pertinent
instrument” by the said maritime authority.
5E.4 Target rate for inspection
5.170
Each participating maritime authority is asked to achieve, within a maximum
three-year term as from the date of enforcement of this agreement, a survey minimum of
15 per cent of foreign ships that may have entered the ports of its State during a recent
representative period of 12 months.
The Port State Control Committee will monitor the overall inspection activity and its
effectiveness throughout the region and adjust the target inspection rate based on
experience gained and progress made in the implementation of the MOU.
5E.5 Ship selection criteria
5.171
In implementing the Mediterranean MOU, inspectors carry out inspections that
consist of a visit on board a ship in order to check the validity of certificates and
documents relevant for the purposes of the Memorandum, as well as the condition of the
ship, its equipment, its crew, and the living and working conditions of the crew.
The inspector, as a minimum, should check the certificates and documents listed in
Annex 2 to the extent applicable and satisfy himself of the overall conditions of the ship,
including the engine room and the accommodation, and hygienic conditions.
The maritime authorities should try to avoid surveying ships inspected by any of the
other participating maritime authorities during the preceding six months unless there
are clear grounds for inspection, or if the ships are of the type mentioned in section 3.3 of
the Memorandum. In such a case, the inspectors shall carry out surveys as they deem
proper. These are the ships to which the authorities will give priority in selecting ships for
inspection:
(i)
(ii)
(iii)
ships visiting a port of a State, the authority of which is a signatory to the
Memorandum, for the first time, or after an absence of 12 months or more;
ships that have been permitted to leave the port of a State, the authority of
which is a signatory to the Memorandum, on the condition that the
deficiencies noted must be rectified within a specified period, upon expiry of
such period;
ships that have been reported by pilots or port authorities as having deficiencies
which may prejudice their safe navigation;
208
PORT STATE CONTROL IN THE MEDITERRANEAN REGION
(iv)
(v)
(vi)
5.173
ships whose statutory certificates on the ship’s construction and equipment
have not been issued in accordance with the relevant instruments;
ships carrying dangerous or polluting goods that have failed to report to the
competent authority of the port and coastal State all relevant information
concerning the ship’s particulars, the ship’s movements and details relating to
the dangerous or polluting goods being carried;
ships that have been suspended from their class for safety reasons in the course
of the preceding six months.
5E.6 Grounds for a more detailed inspection
Clear grounds for a more detailed inspection are, inter alia:
5.172
— a report or notification by another authority;
— a report or complaint by the master, a crew member, or any person or
organization with a legitimate interest in the safe operation of the ship,
shipboard living and working conditions or the prevention of pollution, unless
the authority concerned deems the report or complaint to be manifestly
unfounded—the identity of the person lodging the report or the complaint must
not be revealed to the master or the shipowner of the ship concerned;
— other indications that may warrant a more detailed or expanded inspection,
having regard in particular to Annex 1.
For the purposes of compliance with on-board operational requirements, specific “clear
grounds” are:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
evidence of operational shortcomings revealed during PSC procedures in
accordance with SOLAS 74, MARPOL 73/78 and STCW 1978;
evidence of cargo and other operations not being conducted safely or in
accordance with IMO guidelines;
involvement of the ship in incidents due to failure to comply with operational
requirements;
evidence, from the witnessing of a fire and abandon ship drill, that the crew are
not familiar with essential procedures;
absence of an up-to-date muster list;
indications that the relevant crew members are unable to communicate
appropriately with each other, or with other persons on board, or that the ship
is unable to communicate with the shore-based authorities either in a common
language or in the language of those authorities.
Similar to other regional agreements, the Mediterranean MOU states, at section 3.2.3,
that “nothing in these procedures should be construed as restricting the powers of the
authorities to take measures within its jurisdiction in respect of any matter to which
relevant instruments relate”.
5E.7 No more favourable treatment
During the implementation of a Convention standard, the authorities have to make
sure that no more favourable treatment is given to ships entitled to fly the flag of a state
209
5.173
5.173
REGIONAL PORT STATE CONTROL AGREEMENTS
that is not a party to that Convention. Such ships are subject to the same inspections, and
the port inspectors follow the same guidelines.
5E.8 Ships below Convention size
5.174
For vessels whose dimensions are smaller than those set forth in the Conventions, the
maritime authorities shall enforce the applicable provisions of the pertinent instruments
and, to the extent they are not applicable, they shall take the necessary measures to
ensure that said vessels do not pose an obvious hazard to safety or the marine
environment.
5E.9 Operational violations
5.175
If requested by another authority, an authority will endeavour to secure evidence
relating to suspected violations of the requirements on operational matters of r.10 of
COLREG 72 and MARPOL 73/78. If suspected violations involve the discharge of
harmful substances, then an authority will, upon the request of another authority, visit
the port of the ship suspected of such violation in order to obtain information and, where
appropriate, to take a sample of any alleged pollutant. In such cases, the requesting
authority should state that the flag State of the ship has already been notified of the
alleged violation.
5E.10 Detention
5.176
In the case of deficiencies that are clearly hazardous to safety, health or the
environment, the authority will detain the ship or will stop the operation in the course of
which the deficiencies have been revealed.49 When a vessel is detained, the authority will
immediately inform the administration of the State whose flag the vessel is entitled to fly
and the consul, or, in his absence, its nearest diplomatic representative, of the action
taken. Where relevant, the organization responsible for the issue of the certificates shall
also be informed.50 According to section 3.8.1, if the deficiencies cannot be remedied in
the port of inspection, the inspector may allow the ship to proceed to another port, or the
nearest repair yard, subject to any appropriate conditions determined by that authority
with a view to ensuring that the ship can so proceed without danger to safety, health or
the environment. In such cases, the authority will notify the competent authority of the
region State where the next port of call or the repair yard is situated, the administration
of the State whose flag the ship is entitled to fly, and the consul, or, in his absence, its
nearest diplomatic representative, of the action taken. Where relevant, the organization
responsible for the issue of the certificates shall also be informed. Notification to
authorities will be made in accordance with Annex 7.
When a vessel is detained following an inspection, all costs relating to inspections
subsequent to the first shall be covered by the shipowner or the operator. The detention
shall not be lifted until full payment has been made or a sufficient guarantee has been
given for the reimbursement of the costs.
49. The Mediterranean MOU on Port State Control 1997, section 3.6.3.
50. The Mediterranean MOU on Port State Control 1997, section 3.7.
210
PORT STATE CONTROL IN THE MEDITERRANEAN REGION
5.180
5E.11 Accidental damage
If the master, owner or agent of the ship notifies the port State control authorities,
prior to or upon arrival of the vessel at the port, of any damage, breakdown or deficiency
to the ship or its machinery or equipment that is intended to be repaired or rectified
before the ship sails from that port, the detention should be recorded only if deficiencies
justifying detentions are found after the master has given notification that the ship was
ready for inspectors.
The same procedure applies when PSC authorities are notified that the ship is
scheduled to be surveyed at the port with respect to flag, statutory or class requirements.
5.177
5E.12 Right of appeal
The owner or operator of a ship will have the right of appeal against a detention
decision to a higher administrative authority or to the court of competent jurisdiction,
according to the law in each country. However, an appeal shall not cause the detention to
be suspended.51
5.178
5E.13 Codes for actions taken
The codes for actions taken are as follows:
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
5.179
00 no action taken
10 deficiency rectified
12 all deficiencies rectified
15 rectify deficiency at next port
16 rectify deficiency within 14 days
17 master instructed to rectify deficiency before departure
20 ship delayed to rectify deficiencies
25 ship allowed to sail after delay
30 ship detained
35 detention raised (and date specified)
40 next port informed
45 next port informed to re-detain
50 flag State/consul informed
55 flag State consulted
60 region State informed
70 classification society informed
80 temporary substitution of equipment
85 investigation of contravention of discharge provisions (MARPOL)
99 other (specify in clear text)
5E.14 Detention information
Each authority will report on its inspections under the Memorandum and their results
in accordance with the procedures specified in Annex 8.
51. The Mediterranean MOU on Port State Control 1997, section 3.13.
211
5.180
5.181
REGIONAL PORT STATE CONTROL AGREEMENTS
5F MEMORANDUM OF UNDERSTANDING ON PORT STATE
CONTROL FOR THE INDIAN OCEAN REGION 1998 (INDIAN
OCEAN MOU)
5F.1 Introduction
5.181
The first preparatory meeting on the developing of flag and port State control
capabilities in the Indian Ocean area was held from October 13–17 1997 at Mumbai.
During this meeting, a draft Memorandum was drawn up. It was subsequently finalized
in June 1998 in Pretoria, during a second preparatory and signatory meeting hosted by
the government of South Africa.
The Memorandum was kept open for signature at the headquarters of the secretariat
in Goa, India from June 5 1998 to January 22 1999. The first committee meeting of the
MOU took place at Goa on January 20–22 1999.
5F.2 Member States
5.182
The member States are as follows: Australia, Bangladesh, Djibouti, Eritrea, Ethiopia,
India, Iran, Kenya, Maldives, Mauritius, Mozambique, Myanmar, Oman, Seychelles,
South Africa, Sri Lanka, Sudan, Tanzania and Yemen.
5F.3 Basic principles
5.183
Like other regional agreements, the Indian MOU recognizes that the principal
responsibility for the effective application of standards laid down in international
instruments rests upon the authorities of the State whose flag a ship is entitled to fly. It
also accepts the need for effective action by port States in order to prevent the operation
of substandard ships.
5F.4 Relevant instruments
5.184
“Relevant instruments” under the Indian Ocean MOU are as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
the International Convention on Load Lines 1966 (LL 66);
the International Convention for the Safety of Life at Sea 1974 (SOLAS 74);
the Protocol of 1978 Relating to the International Convention for the Safety of
Life at Sea 1974;
the International Convention for the Prevention of Pollution From Ships
1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 78);
the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
the International Convention on Tonnage Measurement of Ships 1969
(Tonnage 69);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147);
212
PORT STATE CONTROL FOR THE INDIAN OCEAN REGION
5.186
together with the protocols and amendments to these Conventions and related codes of
mandatory status as and when they are in force.
With respect to ILO Convention 147, each authority will apply the instructions in
Annex 2 for the application of the ILO publication “Inspection of Labour Conditions on
board Ship: Guidelines for Procedure”.
Each and every maritime authority is under an obligation to apply the Conventions
that are in force and to which its State is a party. If there are amendments to these
Conventions, each maritime authority shall apply those amendments in force that have
been accepted by its State. An instrument so amended shall be deemed a relevant
instrument by said maritime authority.
5F.5 Target rate
Each authority will achieve, within a period of three years from the coming into effect
of the Memorandum, annual total inspections corresponding to at least 10 per cent of
the estimated number of individual foreign merchant ships that entered the ports of its
State during the previous calendar year.
5.185
5F.6 Inspection criteria
In implementing the Memorandum, the inspectors carry out inspections that will
consist of at least a visit on board ship in order to check certificates and documents and to
satisfy themselves that the crew and the overall condition of the ship, its equipment,
machinery, accommodation and hygienic conditions, meet the provisions of the relevant
instruments.
The maritime authorities should try to avoid surveying ships inspected by any of the
other participating maritime authorities during the preceding six months, unless there
exist clear indications of the need for surveying them, or if the ships are of the type
mentioned in the section 3.3 of the Memorandum, in which case the inspectors shall
carry out surveys as they deem proper. These are the ships to which the authorities will
give priority in selecting ships for inspection:
(i)
(ii)
(iii)
(iv)
(v)
ships visiting a port of a State, the authority of which is a signatory to the
Memorandum, for the first time, or after an absence of 12 months or more;
ships which have been permitted to leave the port of a State, the authority of
which is a signatory to the Memorandum, on the condition that the
deficiencies noted must be rectified within a specified period, upon expiry of
such period;
ships which have been reported by pilots or port authorities as having
deficiencies that may prejudice their safe navigation;
ships whose statutory certificates on the ship’s construction and equipment
have not been issued in accordance with the relevant instruments;
ships carrying dangerous or polluting goods that have failed to report to the
competent authority of the port and coastal State all relevant information
concerning the ship’s particulars, the ship’s movements and details relating to
the dangerous or polluting goods being carried;
213
5.186
5.186
(vi)
REGIONAL PORT STATE CONTROL AGREEMENTS
ships that have been suspended from their class for safety reasons in the course
of the preceding six months.
5F.7 Grounds for a more detailed inspection
5.187
Clear grounds exist when the PSCO finds evidence that in his professional judgement
warrants a more detailed inspection of the ship, its equipment and/or its crew.
Annex 3 sets out the circumstances regarded as clear grounds. The inspectors shall
consider as “clear indications” for a more detailed survey various factors, including the
following:
— a report or notification by another authority;
— report or complaint by the master, a crew member, or any person or
organization with a legitimate interest in the safe operation of the ship,
shipboard living and working conditions or the prevention of pollution, unless
the authority concerned deems the report or complaint to be manifestly
unfounded—the identity of the person lodging the report or the complaint must
not be revealed to the master or the shipowner of the ship concerned;
— other indications that may warrant a more detailed or expanded inspection,
having regard in particular to Annex 2.
For the purposes of control on compliance with on-board operational requirements,
specific clear grounds are the following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
evidence of operational shortcomings revealed during PSC procedures in
accordance with SOLAS 74, MARPOL 73/78 and STCW 1978;
evidence of cargo and other operations not being conducted safely or in
accordance with IMO guidelines;
involvement of the ship in incidents due to failure to comply with operational
requirements;
evidence, from the witnessing of a fire and abandon ship drill, that the crew are
not familiar with essential procedures;
absence of an up-to-date muster list;
indications that the relevant crew members are unable to communicate
appropriately with each other, or with other persons on board, or that the ship
is unable to communicate with the shore-based authorities either in a common
language or in the language of those authorities.
5F.8 No more favourable treatment
5.188
During the implementation of a Convention standard, the authorities have to make
sure that no more favourable treatment is given to ships entitled to fly the flag of a State
that is not a party to that Convention. Such ships are subject to the same inspections and
the port inspectors follow the same guidelines.
5F.9 Ships below Convention size
5.189
For vessels whose dimensions are smaller than those set forth in the Conventions, the
maritime authorities shall enforce the applicable provisions of the relevant instruments
and, to the extent they are not applicable, they shall take the necessary measures to
214
PORT STATE CONTROL FOR THE INDIAN OCEAN REGION
5.191
ensure that said vessels do not pose an obvious hazard to safety or the marine
environment.
5F.10 Operational violations
If requested by another authority, an authority will endeavour to secure evidence
relating to suspected violations of the requirements on operational matters of r.10 of
COLREG 72 and MARPOL 73/78. If suspected violations involve the discharge of
harmful substances then an authority will, upon the request of another authority, visit
the port of the ship suspected of such violation in order to obtain information and where
appropriate to take a sample of any alleged pollutant. In such cases, the requesting
authority should state that the flag State of the ship has already been notified of the
alleged violation.
5.190
5F.11 Detention
In the case of deficiencies that are clearly hazardous to safety, health or the
environment, an authority will detain the ship or will stop the operation in the course of
which the deficiencies have been revealed.52 The PSCO will exercise his professional
judgement in determining whether to detain the ship until the deficiencies are corrected
or to allow it to sail with certain deficiencies, without unreasonable danger to safety,
health or the environment, having regard to the particular circumstances of the intended
voyage. When exercising his professional judgement as to whether or not a ship should
be detained, the PSCO will be guided by the criteria set out in Annex 2.
When a vessel is detained, the authority will immediately inform the administration of
the State whose flag the vessel is entitled to fly and the consul or, in his absence, its
nearest diplomatic representative, of the action taken. Where relevant, the organization
responsible for the issue of the certificates shall also be informed.53
The detention order or the stoppage of the operation shall not be lifted until the
hazard is removed, except in cases where the authority allows the ship concerned to
proceed to the nearest appropriate repair yard available.
According to section 3.8.1, if the deficiencies cannot be remedied in the port of
inspection, the inspector may allow the ship to proceed to another port, or the nearest
repair yard, subject to any appropriate conditions determined by that authority with a
view to ensuring that the ship can so proceed without risk to the safety and health of the
passengers and crew, or risk to other ships, or without being an unreasonable threat of
harm to the marine environment.
If such a vessel proceeds to sea without complying with the conditions agreed to by the
authority of the port of inspection:
— that Authority will immediately alert all other authorities; and
— the ship will be detained at any port of the authorities which have accepted the
Memorandum, until the master has provided evidence to the satisfaction of the
authority of the port State that the ship fully complies with all reasonable
requirements of the relevant instruments.
52. The Indian Ocean MOU on Port State Control 1998, section 3.6.3.
53. The Indian Ocean MOU on Port State Control 1998, section 3.7.
215
5.191
5.191
REGIONAL PORT STATE CONTROL AGREEMENTS
If the vessel does not proceed to the nominated repair port, the authority of the repair
port will immediately alert the port of inspection and it will inform the Indian Ocean
MOU secretariat to relay this information to other regional MOU secretariats.
5F.12 Accidental damage
5.192
If the master, owner or agent of the ship notifies the PSC authorities before arrival,
upon arrival or when the vessel is in port, of any damage, breakdown or deficiency to the
ship, its machinery and equipment that is intended to be repaired or rectified before the
ship sails from that port, a detention should be issued only if deficiencies justifying
detention are found after the master has given notification that the ship is ready for
inspections. The same procedure applies when the PSC authorities are notified that the
ship is scheduled to be surveyed at the port with respect to flag, statutory or class
requirements.
5F.13 Right of appeal
5.193
The owner or operator of a ship will have a right of appeal against a detention to a
higher administrative authority or to the court of competent jurisdiction, according to
the law in each country. However, an appeal shall not cause the detention to be
suspended.54
5F.14 Detention information
5.194
On completion of an inspection, the master of the ship will be provided by the PSCO
with a document in the form specified in Annex 6 of the Memorandum, giving the results
of the inspection and details of any decisions taken by the PSCO and of the corrective
action to be taken by the master, owner or operator.
5F.15 Codes for actions taken
5.195
The codes for actions taken are as follows:
—
—
—
—
—
—
—
—
—
—
—
—
—
—
00 no action taken
10 deficiency rectified
15 rectify deficiency at next port
16 rectify deficiency within 14 days
17 master instructed to rectify deficiency before departure
30 ship detained
35 detention raised
36 ship allowed to sail
40 next port informed
45 next port informed to re-detain
50 flag administration/consul/flag maritime authority informed
55 flag administration/maritime authority consulted
60 region authority informed
70 classification society informed
54. The Indian Ocean MOU on Port State Control 1998, section 3.13.
216
PORT STATE CONTROL FOR THE WEST AND CENTRAL AFRICA REGION
—
—
—
—
—
5.199
80 temporary substitution of equipment
85 investigation of contravention of discharge provisions (MARPOL)
95 letter of warning issued
96 letter of warning withdrawn
99 other (specify in clear text)
5G THE MEMORANDUM OF UNDERSTANDING ON PORT
STATE CONTROL FOR THE WEST AND CENTRAL AFRICA
REGION 1999 (ABUJA MOU)
5G.1 Member States
The Abuja MOU was signed on October 22 1999 in Abuja, Nigeria, by the following
maritime authorities: Benin, Cape Verde, Congo, Côte d’Ivoire, Gabon, Gambia,
Ghana, Guinea, Liberia, Mauretania, Namibia, Nigeria, Senegal, Sierra Leone, South
Africa and Togo.
The interim secretariat is established in Lagos, Nigeria.
5.196
5G.2 Relevant instruments
Relevant instruments are as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
5.197
the International Convention on Load Lines 1966 (LL 1966);
the International Convention for the Safety of Life at Sea 1974 and its Protocol
of 1978, as amended (SOLAS 74/78);
the International Convention for the Prevention of Pollution From Ships
1973, as modified by the Protocol of 1978, as amended (MARPOL 73/78);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 78);
the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
the International Convention on Tonnage Measurement of Ships 1969
(Tonnage 1969);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147).
5G.3 Target rate
Each participating maritime authority is asked to make efforts, within a period of three
years, from the Memorandum coming into effect, to achieve a minimum annual total of
inspections of 15 per cent of the estimated number of individual foreign merchant ships
that entered the ports of its State during a recent representative period of 12 months.
5.198
5G.4 Ship selection criteria
The authorities will pay special attention to the following ships for inspection:
(i)
ships visiting a port of a State for the first time or after an absence of 12 months
or more;
217
5.199
5.199
(ii)
(iii)
(iv)
(v)
(vi)
REGIONAL PORT STATE CONTROL AGREEMENTS
ships that have been permitted to leave a port of a State with deficiencies to be
rectified;
ships that have been reported by pilots of port authorities as being deficient;
ships whose certificates are not in order;
ships carrying dangerous or polluting goods not reporting all information;
ships suspended from class.
During its third meeting in October 2003, the Abuja Port State Control Committee
approved the relocation of the Abuja MOU information centre from the Maritime
Organization of West and Central Africa (MOWCA) secretariat in Abidjan, Côte
d’Ivoire, to Pointe Noire, Republic of Congo.
5H THE MEMORANDUM OF UNDERSTANDING ON PORT
STATE CONTROL IN THE BLACK SEA REGION 2000 (BLACK
SEA MOU)
5H.1 Member States
5.200
A first preparatory meeting for the establishment of a PSC system in the Black Sea
region took place in Varna, Bulgaria, on September 4–17 1999.
The Black Sea MOU was signed in April 2000 by six maritime authorities in the
region. These are: Bulgaria, Georgia, Romania, the Russian Federation, Turkey and the
Ukraine.
The interim secretariat was established in Istanbul by the Turkish Maritime
Administration.
5H.2 Relevant instruments
5.201
Relevant instruments are as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
the International Convention on Load Lines 1966 (LL 1966);
the International Convention for the Safety of Life at Sea 1974 (SOLAS), and
its Protocol of 1978, as amended (SOLAS 74/78);
the International Convention for the Prevention of Pollution From Ships
1973, as modified by the Protocol of 1978, as amended (MARPOL 73/78);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 78);
the Convention on the International Regulations for Preventing Collisions at
Sea 1972 (COLREG 72);
the International Convention on Tonnage Measurement of Ships 1969
(Tonnage 1969);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO 147).
5H.3 Target rate
5.202
Each participating maritime authority is asked to make efforts, within a period of three
years from the Memorandum coming into effect, to achieve a minimum annual total of
inspections of 15 per cent of the estimated number of individual foreign merchant ships
that entered the ports of its State during a recent representative period of 12 months.
218
REGIONAL AGREEMENT UNDER DEVELOPMENT
5.204
5H.4 Ship selection criteria
The authorities will pay special attention to the following ships for inspection:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
5.203
ships visiting a port of a State for the first time or after an absence of 12 months
or more;
ships that have been permitted to leave a port of a State with deficiencies to be
rectified;
ships that have been reported by pilots of port authorities as being deficient;
ships whose certificates are not in order;
ships carrying dangerous or polluting goods not reporting all information;
ships suspended from class;
ships that have been subject of a report or notification by another authority.
The Port State Committee, the executive body under the Black Sea MOU, met in
Istanbul, Turkey on November 13–15 2000 for its first session. The Committee
considered and adopted several amendments to the Memorandum, including a
declaration providing for the exchange of information with other similar regional
agreements on PSC. It was agreed to consider the Paris MOU as a basis for further
developments.
The Black Sea Information System (BSIS) became operational on January 1 2003 and
during its fourth meeting the Committee agreed to establish a link in order to exchange
information between BSIS and APCIS.
5I REGIONAL AGREEMENT UNDER DEVELOPMENT
In July 1999, a first draft of a regional PSC agreement for the ROPME (Regional
Organisation for the Protection of the Marine Environment) sea area and complementary training programmes for its implementation was discussed in Manama, Bahrain.
The meeting was organized by the Maritime Agency Mutual Aid Centre (MEMAC)
Bahrain, in co-operation with the Gulf Co-operation Council (GCC) and the IMO.
The meeting was attended by delegates from Bahrain, Kuwait, Oman, Qatar, Saudi
Arabia and the United Arab Emirates, with the United Nations Environment
Programme Regional Office for West Africa (UNEP/ROWA) as observer.
219
5.204
CHAPTER 6
Port State Control in the UK
6A INTRODUCTION
In the UK, the historical and legal background of port State control goes back to the
Merchant Shipping Act 1876 and probably before then.
In the cases that follow, the main aspects of port State control have been discussed
with regard to the relevant Merchant Shipping Acts. The points examined include
detention of an unsafe ship, the meaning of “unsafe ship”, the history of the vessel and
compensation for the detention of a ship by the Board of Trade.
In Thompson v. Farrer1 there was an action against the Secretary of the Board of Trade
to recover compensation under s. 10 of 39 & 40 Vict. c.80 (the Merchant Shipping Act
1876) for the provisional detention of the vessel City of Limerick.
The City of Limerick was preparing to proceed with an ordinary cargo to the US and
return with a cargo partly consisting of cattle. During this preparation, the vessel was
provisionally detained under the Merchant Shipping Act 1876 by an order of the Board
of Trade. Afterwards, a court of survey was held under the same statute and it was stated
that the vessel was not unfit to proceed to sea without serious damage to human life,
having regard to the nature of the service for which she was intended, and that,
consequently, the Board of Trade officers had no right to detain her. Therefore, the
vessel was released. Then an action was brought by the plaintiff in order to recover
compensation for the loss to him by reason of the provisional detention.
The first section that needs to be dealt in this case is s. 6 of the 1876 Act. It was stated
by the court that this section gives power to the Board of Trade to interfere with the
rights of private subjects over their private property. This power is not given in respect of
every British ship, but only where certain conditions exist. Under s. 6 of the Merchant
Shipping Act 1876 it was stated:
6.1
“Where a British ship, being in any port of the United Kingdom, is by reason of the defective
condition of her hull, equipments, or machinery, or by reason of overloading or improper loading,
unfit to proceed to sea without serious danger to life, having regard to the nature of the service for
which she is intended, any such ship may be provisionally detained for the purpose of being
surveyed and either finally detained or released.”
This part of the enactment gives the power; the remainder of the section deals with the
manner in which the given power is to be exercised: “The Board of Trade, if they have
reason to believe, on complaint or otherwise, that a British ship is unsafe, may
provisionally order the detention of the ship for the purpose of being surveyed”. Under
this section there is a power given to the Board to order provisional detention, if they
1. (1882) 4 Asp. M.L.C. 562.
221
6.2
6.2
6.3
PORT STATE CONTROL IN THE UK
have reason to believe that the ship is unsafe. The only way to read the two enactments
together, so as to give effect to both, is to say that the Board may detain a ship if they have
reason to believe she is unsafe.
The ship that may be detained is a ship satisfying the conditions mentioned in the first
part of s. 6. Therefore, the conditions in the first part of the section are precedent to a
perfect right to detain a ship provisionally or finally. But these are not conditions
precedent to a duty on the part of the Board of Trade to provisionally detain.
The court also stated that the true interpretation of s. 10 of the Act was as follows. If,
on the evidence given at the trial of what might have been made known to the Board of
Trade by all means of examination possible under the circumstances in which the ship
then was, and all reasonable inquiries, a person of ordinary skill would have had
reasonable and probable cause to suspect the safety of the ship so far as to make it
reasonable to detain it for the purpose of inquiry, the shipowner has no remedy given to
him, even though his ship may in fact be a safe ship. However, if upon such evidence a
person of ordinary skill would have had no reasonable and probable cause to suspect the
ship, then compensation would be given to the shipowner; although the facts that were
erroneously stated to the Board of Trade in this case would, if correct, have given to a
person of ordinary skill reasonable and probable cause to suspect, and consequently
detain the ship. Liability clearly depended upon the result in fact, and not upon any
statements or appearances of fact.2
The court also made reference to the antecedent behaviour of the ship. “The previous
behaviour of the ship under the same conditions as would affect her on her proposed
going to sea, would, in my mind, be an obvious and necessary fact to be considered in
determining whether she would be safe or unsafe.”3
The Court of Appeal held that:
— the proper question for the jury was whether a reasonable man with a competent
knowledge of ships would have believed from the actual condition of the ship
that she was unsafe, the question of reasonable and probable cause under the
Merchant Shipping Act 1876 depending, not on what representations are made
to the Board of Trade, but on what the actual condition of the vessel is;
— the question of reasonable and probable cause was one for the jury;
— evidence as to the history of the vessel is admissible upon that question;
— where the contemplated employment of a vessel is for a purpose which involves
more than the outward voyage, the employment after the end of the outward
voyage is part of “the service for which she is intended”, and must be taken into
consideration in deciding whether there was reasonable and probable cause for
believing the ship to be unsafe.
In Lewis v. Gray,4 an action was brought against the Board of Trade by the shipowner
for damages said to have occurred to him in consequence of the Board having detained
his ship when not warranted to do so. This case raised the question as to the true
construction of the Merchant Shipping Act 1873 (36 & 37 Vict. c.85). This Act creates a
duty incumbent upon the Board of Trade. The first duty of the Board under this Act, if it
is satisfied that human life is in danger, is to endeavour to protect life, so far as the statute
2. (1882) 4 Asp M.L.C. at 565–566.
3. Ibid., at 566.
4. Lewis v. Gray (1876) 3 Asp. M.L.C. 136 (C.P.).
222
UK PORT STATE CONTROL LEGISLATION
6.4
gives it power to interfere. It has been stated that it is not necessary that the complaint
made to the Board of Trade as to the condition of a ship under s. 12 of the Merchant
Shipping Act 1873 should state that the ship “cannot proceed to sea without serious
danger to human life”, but it is sufficient if by reasonable inference it can be ascertained
from the wording of the complaint that this in fact is the case. It has also been stated that
neither is it necessary that the report made upon a survey ordered by the Board should so
state, but it is sufficient if it can be ascertained by reasonable inference therefrom that
this is in fact the case.
6B UK PORT STATE CONTROL LEGISLATION
6B.1 Background
A major development in the operation of PSC in Europe was the adoption by the EU
Council in June 1995 of a Directive on port State control, Directive 95/21/EC. This
Directive provides a legal framework to make mandatory the existing practice of
member States acting under their voluntary commitment to the Paris MOU.5 At the
same time, the system of the Paris MOU remains in place. Under the Directive, all EU
member States were obliged to implement the provisions of the Directive in their
national legislation by July 1 1996.6
In the UK, the Merchant Shipping (Port State Control) Regulations 1995, S.I. 1995
No. 3128, laid before Parliament on December 11 1995, came into effect on January 1
1996. The regulations implement Directive 95/21/EC concerning the enforcement, in
respect of shipping using EU ports and sailing in waters under the jurisdiction of
member States, of international standards for ship safety, pollution prevention and
shipboard living and working conditions.
Directive 95/21/EC, which originated in the European Commission’s Communication A Common Policy on Safe Seas, has since been amended by:
— Directives 96/40/EC and 98/25/EC, passed into UK law by the Merchant
Shipping (Port State Control) (Amendment) Regulations, S.I. 1998 No. 1433,
with effect from July 1 1998;
— Directive 98/42/EC, passed into UK law by the Merchant Shipping (Port State
Control) (Amendment No.2) Regulations 1998, S.I. 1998 No. 2198, with
effect from September 30 1998;
— Directive 99/97/EC, passed into UK law by the Merchant Shipping (Port State
Control) (Amendment) Regulations 2001, S.I. 2001 No. 2349, with effect from
July 31 2001; and
— Directives 2001/106/EC and 2002/84/EC, implemented by the Merchant
Shipping (Port State Control) (Amendment) Regulations 2003, S.I. 2003 No.
1636, with effect from July 22 2003.
The Merchant Shipping (Port State Control) (Amendment) Regulations 2003 (MSN
5. See Chapter 5, section 5A
6. Article 20(1) of Directive 95/21/EC provides as follows:
“Member States shall adopt the laws, regulations and administrative provisions necessary to implement
this Directive not later than June 30 1996 and shall forthwith inform the Commission thereof.”
223
6.4
6.4
6.5
PORT STATE CONTROL IN THE UK
1775(M)) consolidates guidance on the Merchant Shipping (Port State Control)
Regulations 1995 and subsequent amendments, and contains all technical Annexes to
Regulations I to XIII. It supersedes MSN 1725(M) and MSN 1753(M).
Part I of the Merchant Shipping (Port State Control) Regulations applies to ships
which are not British ships, calling at, or anchored off, UK ports and offshore
installations. It does not apply to fishing vessels, ships of war, naval auxiliaries, wooden
ships of primitive build, government ships used for non-commercial purposes or
pleasure yachts not engaged in trade. It provides for the Maritime and Coastguard
Agency to inspect at least 25 per cent of such ships entering its ports in a year, to check
the certificates required by a number of Conventions concerning ship safety and marine
pollution.
Where there are clear grounds, by reason of non-compliance with the Conventions or
the nature or type of a ship, a more detailed inspection is to be carried out. In the case of
passenger ships operating on a regular service to or from the UK, an expanded
inspection is to be carried out annually by the Maritime and Coastguard Agency, subject
to consultation with the administration of other port States on the service. Other
specified types of ship are also subject to expanded inspections.
Parts II and III of the Regulations contain provisions which are not directly related to
implementation of the Directive but which deal with rights of appeal and compensation
in respect of detained ships and inspection and operational requirements.
Rights of appeal and compensation in respect of detained ships are stated under Part I
and are applicable in respect of detention of any ship, including a British ship, which is
detained by virtue of powers in merchant shipping legislation.
Part III implements the new Chapter XI of SOLAS adopted by the conference of
contracting governments to SOLAS 74 by Resolution 1 on May 24 1994. Under this
Part, an additional power to existing ships, their equipment and documents have been
covered. This Part allows inspection of the familiarity of the crew with essential
procedures and operations relating to the safety of the ship.
6B.2 The Merchant Shipping (Port State Control) Regulations 1995 (S.I.
1995 No. 3128), as amended
6.6
6B.2(i) Application
Part I of the Regulations applies to any seagoing ship:
(i)
(ii)
in a port in the UK or at an offshore installation; or
anchored off such a port or such an installation (except in waters which are
neither UK waters nor designated waters), and its crew.
Part I of the Regulations does not apply to:
—
—
—
—
—
—
—
a British ship;
a fishing vessel;
a ship of war;
a naval auxiliary;
a wooden ship of a primitive build;
a government ship used for non-commercial purposes; or
a pleasure yacht not engaged in trade.
British ships are not covered by the port State control provisions of the Port State
224
UK PORT STATE CONTROL LEGISLATION
6.9
Control Regulations but British ships are subject to the implementation of the Port State
Control Directive by other EU coastal states.
Under Sch. I of the 1997 Merchant Shipping and Maritime Security Act, amendments have been made to the Merchant Shipping Act 1995 (MSA) relating to inspection
and detention of ships. An amendment to the MSA (s. 95) has since extended the
powers of inspection and detention to a ship “at sea in UK waters”, except for those on
innocent passage.7 In practice, most inspections will be carried out on vessels when they
are alongside.
6B.2(ii) Competent authority
Under S.I. 1995 No. 3128, the Marine Safety Agency was designated as the
competent authority for the UK for the purpose of the Council Directive and Part I of
the Port State Control Regulations. The Marine Safety Agency was replaced by the
Maritime and Coastguard Agency as a result of the Port State Control (Amendment)
Regulations, S.I. 1998 No. 1433, which came into force on July 1 1998.
6B.2(iii) The Maritime and Coastguard Agency (MCA)
The Maritime and Coastguard Agency is an executive agency of the Department of
Transport. It was established in April 1998 following the merger of the Marine Safety
Agency and the Coastguard Agency. The responsibilities of the MCA are to:
(i)
(ii)
(iii)
(iv)
6.8
develop, promote and enforce high standards of marine safety;
minimize loss of life amongst seafarers and coastal users;
respond to maritime emergencies 24 hours a day;
minimize the risk of pollution of the marine environment from ships and,
where pollution occurs, minimize the impact on UK interests.
6B.2(iv) Conventions
Relevant Conventions are as follows:
(i)
6.7
6.9
the International Convention on Load Lines 1966 (LL 66);
7. The Merchant Shipping Act 1995, s.95 provides as follows:
“Power to detain dangerously unsafe ship
Section 95 of the 1995 MSA, power to detain dangerously unsafe ship, is amended as follows.
(1) Where a ship which is—
(a) in a port in the United Kingdom, or
(b) at sea in United Kingdom waters,
appears to a relevant inspector to be a dangerously unsafe ship, the ship may be detained.”
The power of detention conferred by subsection (1) above is subject to subsection 2(A).
Under subsection 2(A) it has been provided that:
“the power of detention conferred by subsection (1)(b) is not exercisable in relation to a
qualifying foreign ship while the ship is exercising—
(a) the right of innocent passage, or
(b) the right of transit passage through straits used for international navigation.”
The officer detaining the ship shall serve on the master of the ship a detention notice which
shall—
(a) state that the relevant inspector is of the opinion that the ship is a dangerously unsafe ship;
(b) specify the matters, which, in the relevant inspector’s opinion, make the ship a dangerously
unsafe ship; and
Under subsection 3(c) instead of “prohibiting the ship from going the sea” the detention notice
shall “require the ship to comply with the terms of the notice until it is released by a competent
authority”.
225
6.9
PORT STATE CONTROL IN THE UK
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
the International Convention for the Safety of Life at Sea 1974 (SOLAS 74);
the International Convention for the Prevention of Pollution From Ships,
1973, and the 1978 Protocol relating thereto (MARPOL 73/78);
the International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1978 (STCW 78);
the International Regulations for Preventing Collisions at Sea 1972 (COLREG 72);
the International Convention on the Tonnage Measurement of Ships 1969
(Tonnage 69);
the Merchant Shipping (Minimum Standards) Convention 1976 (ILO
No.147);
the International Convention on Civil Liability for Oil Pollution Damage 1992
(CLC 92);
together with the Protocols and amendments to these Conventions and related codes of
mandatory status, in force at July 22 2003, and thereafter in their up-to-date versions in
so far as those versions:
(a) relate to all or any of the purposes set out in s. 85(1) of the Merchant Shipping
Act 1995,
(b) are considered by the Secretary of State to be relevant from time to time, and
(c) are specified in a Merchant Shipping Notice.
6.10
6B.2(v) Publication of detentions
The MCA was required, as a minimum, to publish quarterly information concerning
ships to which Part I of the Regulations applies detained during the previous
three-month period and which have been detained more than once during the past 24
months. Since June 1994, the MCA has published a list each month of all foreign ships
under detention in UK ports.
Following the amendment made to the Merchant Shipping (Port State Control)
Regulations 1995 to implement Directive 99/97/EC, the range of information on
inspections of foreign ships that the MCA was required to make public was extended. In
accordance with the Directive, the MCA must ensure that the following details8 are
published each month in respect of ships detained or subject to a refusal of access to UK
ports in the previous months:
—
—
—
—
—
name of the ship;
IMO number;
type of ship;
tonnage;
year of construction as determined on the basis of the date indicated in the ship’s
safety certificates;
— name and address of the shipowner or the operator of the ship;
— in the case of ships carrying liquid or solid cargoes in bulk, the name and address
of the charterer responsible for the selection of the vessel and the type of
charterer;
— flag State;
8. Annex IX, Part I of MSN 1775.
226
UK PORT STATE CONTROL LEGISLATION
6.10
— the classification society or classification societies, where relevant, which
has/have issued to this ship class certificates, if any;
— the classification society or classification societies and/or any other party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating the certificates delivered;
— port and date of the last expanded inspection, stating, where appropriate,
whether a detention was ordered;
— port and date of the last special survey and the name of the organization which
carried out the survey;
— number of detentions during the previous 24 months;
— country and port of detention;
— date when the detention was lifted;
— duration of detention in days;
— number of deficiencies found and the reasons for detention, in clear and explicit
terms;
— description of the measures taken by the competent authority and, where
relevant, by the classification society as a follow-up to detention;
— if the ship has been refused access to any port within the MOUs, the reasons for
such a measure in clear and explicit terms;
— an indication, where relevant, of whether the classification society or any other
private body that carried out the survey has a responsibility in relation to the
deficiencies which alone or in combination led to detention;
— a description of the measures taken in case of a ship which has been allowed to
proceed to the nearest appropriate yard, or which has been refused access to any
port in the MOU.
Information from the Sirenac reporting system9 on port State inspections carried out
in the UK is listed in Annex IX Part II of MSN 1775. This information will be made
public through the Equasis database (see Chapter 8). Details of the charterer
responsible for the selection of a ship carrying liquid or solid cargoes in bulk will be given
in both cases.
Information from Sirenac on ships inspected made public through Equasis will
include the following details:
—
—
—
—
—
—
—
name of the ship;
IMO number;
type of ship;
tonnage;
year of construction;
name and address of the shipowner or the operator of the ship;
in the case of ships carrying liquid or solid cargoes in bulk, the name and address
of the charterer responsible for the selection of the vessel and the type of
charterer;
— flag State;
— the classification society, or classification societies, where relevant, which
has/have issued to this ship class certificates, if any;
9. The Sirenac reporting system is the central information system for the port inspection records
established in accordance with the Paris MOU.
227
6.10
PORT STATE CONTROL IN THE UK
— the classification society or classification societies, and/or any party which
has/have issued to this ship certificates in accordance with the Conventions on
behalf of the flag State, stating the certificates delivered;
— the country, port and date of inspection;
— number and nature of deficiencies.
6.11
6.12
6B.2(vi) Reports from pilots and port authorities
Under Part I, reg. 15(1), a pilot authorized pursuant to the Pilotage Act 1987 and
engaged in the berthing or unberthing of a ship to which Part I applies in the UK, or
engaged on a ship bound for a port within a member State of the European Union, who
learns in the course of his normal duties that there are deficiencies which may prejudice
the safe navigation of the ship or which may pose a threat of harm to the marine
environment, must immediately inform the port authority who authorized him—who, in
turn, must immediately inform the MCA.
In similar circumstances, a pilot, other than one authorized under the Pilotage Act
1987, must inform the MCA or the competent authority for another member State.
Under Part I, reg. 15(3), if a port authority (a harbour authority as defined in the
Harbours Act 1964), when exercising normal duties, learns that a ship within its port has
deficiencies which may prejudice the safety of the ship or pose an unreasonable threat of
harm to the marine environment, the authority must immediately inform the MCA.
Outside normal working hours, unless the deficiencies require urgent inspection, reports
should be faxed to the marine office. In urgent cases, local authorities should inform an
MCA surveyor through locally agreed channels, or contact the duty officer at MCA
headquarters. Marine Office telephone and facsimile numbers are obtainable from the
MCA website at www.mca.gov.uk and are also provided under MSN 1775.
Pilots and port authorities are not expected, nor empowered, to carry out inspections.
Ships reported in this way are given high priority for inspection. A port authority or pilot
failing to comply with reg. 15(1) or (3) is guilty of an offence and liable on summary
conviction to a fine not exceeding level 3 on the standard scale.
6B.2(vii) Inspections
Under the Paris MOU, each signatory to the Paris MOU agrees to inspect an annual
total number of inspections corresponding to at least 25 per cent of the number of
individual ships to which the Port State Control Regulations apply and which entered its
ports during a representative calendar year. The UK has set itself a target of between 25
per cent and 30 per cent. The total number of mandatory inspection of high-risk ships
and mandatory expanded inspection of ships that shall be carried out annually by the
Maritime and Coastguard Agency shall correspond to at least 25 per cent of the average
annual number of individual ships which entered UK ports, calculated on the basis of
the three most recent calendar years for which statistics are available.
Port State control inspections are usually unannounced, except for mandatory
expanded inspection under reg. 7. A ship not subject to an expanded inspection with a
target factor10 greater than 50 on Sirenac must be inspected if one month has passed
since the last inspection in the Paris MOU region.
10. The target factor is a system developed by the Paris MOU to prioritize inspection of ships. It assigns a
“score” to each vessel on the database according to a variety of factors, outlined infra, para. 6.14.
228
UK PORT STATE CONTROL LEGISLATION
6.13
If it is not possible for operational reasons to carry out a mandatory inspection of a ship
with a target factor over 50, or a mandatory expanded inspection, the MCA must inform
Sirenac without delay, and the next port if it is within the Paris MOU. “Operational
reasons” will include conditions or operational constraints imposed on the ship under
which inspection is impossible or would involve excessive risk to the safety of the ship,
personnel or the port. The MCA is under an obligation to report these cases to the
European Commission every six months, together with the reasons for not inspecting
the ships concerned. The number of vessels which cannot be inspected for operational
reasons shall not exceed five per cent of the average annual number of individual ships to
which the Port State Control Regulations apply and which entered UK ports within
three most recent calendar years for which information is available.
In selecting other ships for inspection, the MCA shall determine the order of priority
as follows:
(i) The first ships to be selected for inspection shall be those qualifying under the
factors listed in Annex I, Part I of MSN 1775, irrespective of their target factor.
(ii) The ships listed in Annex I, Part II of MSN 1775 shall be selected in decreasing
order, depending on the order of priority resulting from the value of their target
factors as given on the Sirenac information system.
While carrying out the above-mentioned inspections, the inspector will consult the
public and private database relating to ship inspection accessible through the Equasis
information system.
SHIPS TO BE CONSIDERED FOR PRIORITY INSPECTION
11
Overriding factors: Regardless of the value of the target factor, the following ships shall
be considered as an overriding priority for inspection:
(i)
(ii)
(iii)
(iv)
(v)
ships which have been reported by pilots or port authorities as having
deficiencies which may prejudice their safe navigation (pursuant to Council
Directive 93/75/EEC and reg. 15 of the Port State Control Regulations);
ships which have failed to comply with the obligations laid down in Council
Directive 93/75/EEC;12
ships which have been the subject of a report or notification by another
member State;
ships which have been the subject of a report or complaint by the master, a crew
member, or any person or organization with a legitimate interest in the safe
operation of the ship, shipboard living and working conditions or the
prevention of pollution, unless the member State concerned deems the report
or complaint to be manifestly unfounded. The identity of the person lodging
the report or complaint must not be revealed to the master or to the shipowner
of the ship concerned;
ships which have been:
— involved in collision, grounding or stranding on their way to the port;
— accused of an alleged violation of the provisions on discharge of harmful
substances or effluents;
11. Annex I of Council Directive 95/21/EC as amended by Commission Directive 98/42/EC, Commission
Directive 1999/97/EC and Directive 2001/106/EC of the European Parliament and of the Council.
12. Directive 93/75/EEC concerning minimum requirements for vessels bound for and leaving
Community ports and carrying dangerous and polluting goods.
229
6.13
6.13
PORT STATE CONTROL IN THE UK
—
(vi)
6.14
Target factor: The following elements are relevant for establishing the “target factor”
displayed on the Sirenac information system for prioritizing inspection of ships:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
6.15
manoeuvred in an erratic or unsafe manner whereby routing measures
adopted by the IMO or safe navigation practices and procedures have not
been followed; or
— otherwise operated in such a manner as to pose a danger to persons,
property or the environment.
ships which have been suspended from their class for safety reasons in the
course of the preceding six months.
ships visiting a port in the MOU region for the first time or after an absence of
12 months or more. The MCA shall rely upon available Sirenac data and
inspect those ships which have not been recorded in the Sirenac database
following the entry into force of that database on January 1 1993;
ships not inspected by any member State within the previous six months;
ships whose statutory certificates on the ship’s construction and equipment,
issued in accordance with the Conventions, and the classification certificates,
have been issued by organizations which are not recognized under the terms of
Council Directive 94/57/EC;
ships flying the flag of a State appearing in the blacklist published in the annual
report of the MOU;
ships which have been permitted to leave the port of a member State on certain
conditions, such as:
— deficiencies to be rectified before departure;
— deficiencies to be rectified at the next port;
— deficiencies to be rectified within 14 days;
— deficiencies for which other conditions have been specified;
if all deficiencies have been rectified this is taken into account;
ships for which deficiencies have been recorded during a previous inspection,
according to the number of deficiencies;
ships which have been detained in a previous port;
ships flying the flag of a country which has not ratified all relevant international
Conventions referred to in reg. 2 of the Regulations;
Ships classed with a classification society with a deficiency ratio above average;
Ships in a category for which an expanded inspection is required by reg. 7 of the
Regulations;
Other ships above 13 years old.
In determining the order of priority for inspection of the ships listed above, the
competent authority shall take into account the overall target factor shown on the
Sirenac database, according to Annex 1 Section 1 of the MOU. A higher target factor is
indicative of a higher priority. The overall factor is the sum of the applicable target factor
values as defined within the framework of the MOU. Items (v), (vi) and (vii) shall apply
only to inspections carried out in the last 12 months. The overall target factor shall not be
less than the sum of the values of items (iii), (iv), (viii), (ix), (x) and (xi).
For the purpose of reg. 7(4) the overall target factor shall not take into account item
(x).
The MCA shall refrain from inspecting a ship which has been inspected by the
230
UK PORT STATE CONTROL LEGISLATION
6.16
competent authority of any member State in accordance with the Council Directive
within the previous six months, provided that:
(i)
(ii)
(iii)
(iii)
the ship is not in a category listed in Annex I of MSN 1775;
no deficiencies have been reported following a previous inspection in an MOU
port;
the target factor is not greater than 50; and
no clear grounds exist for carrying out an inspection.
However, in case of operational controls which are specifically provided for in the
Convention enactments, there will not be any time restriction for the MCA.
6B.2(viii) Inspection procedure
Inspections are normally unannounced, except for mandatory expanded inspection.
However, when carrying out inspections, PSCOs have to be careful not to endanger the
safe operation of the ship. Therefore, in some cases, e.g., where a drill is required on a
ferry, the operator will be given advance notice of the inspection. Inspections may be
carried out by a single PSCO or a team of PSCOs, depending to some extent on the size
and type of ship and the resources available on any particular day. When inspections
include consideration of working and living conditions, the MCA PSCOs may use the
services of a specialist MCA food and hygiene inspector.
In general, before boarding the vessel, the PSCO will look at the external condition of
the ship and check the ship’s marks. Before getting to the master’s cabin he looks at the
general state of the deck, mooring arrangements and the accommodation. As a general
rule, when a ship is selected for inspection, the surveyor will, as a minimum, check the
certificates and documents listed in Annex II of MSN 177513 and satisfy himself of the
overall condition of the ship including the engine room, crew accommodation and
hygienic conditions.14
Certificates and documents listed in Annex II are as follows:
(i) International Tonnage Certificate (1969);
(ii) Passenger Ship Safety Certificate;
13. Annex II of Council Directive 95/21/EC as amended by Commission Directive 98/42/EC, Commission
Directive 1999/97/EC and Directive 2001/106/EC of the European Parliament and of the Council.
14. Under S.I. 1995 No. 3128, as amended, the inspection procedure has been explained as follows:
6. “Inspection procedure
(1) In carrying out an inspection the inspector shall as a minimum:
— check the certificates and documents listed in Annex II of M. 1775, to the extent applicable;
and
— satisfy himself of the overall condition of the ship, including the engine room and
accommodation and including hygienic conditions.
(2) The inspector may examine all relevant certificates and documents, other those listed in Annex
II of M. 1775, which are required to be carried on board in accordance with the Convention
enactments.
(3) Whenever there are clear grounds for believing, after the inspection referred to in paragraph (1)
and (2), that the condition of a ship or of its equipment or crew does not substantially meet the
relevant requirements of a Convention enactment, a more detailed inspection shall be carried
out, including further checking of compliance with onboard operational requirements.
(4) The inspector shall also observe the relevant procedures and guidelines for control of ships
specified in Annex IV of M. 1775.”
231
6.16
6.16
PORT STATE CONTROL IN THE UK
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
(xxv)
Cargo Ship Safety Construction Certificate;
Cargo Ship Safety Equipment Certificate;
Cargo Ship Safety Radiotelegraphy Certificate;
Cargo Ship Safety Radiotelephony Certificate;
Cargo Ship Safety Radio Certificate;
Exemption Certificate;
Cargo Ship Safety Certificate;
International Certificate of Fitness for Carriage of Liquefied Gases in
Bulk;
Certificate of Fitness for the Carriage of Liquefied Gases in Bulk;
International Certificate of Fitness for the Carriage of Dangerous
Chemicals in Bulk;
Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk;
International Oil Pollution Prevention Certificate;
International Pollution Prevention Certificate for the Carriage of Noxious
Liquid Substance on Bulk;
International Load Line Certificate (1966);
International Load Line Exemption Certificate;
Oil Record Book, parts I and II;
Cargo Record Book;
Minimum Safe Manning Document;
Certificates of Competency including dangerous goods endorsement;
medical certificates (See ILO Convention No.73 concerning Medical
Examination of Seafarers);
stability information including grain loading information and document
of authorization;
Document of Compliance and Safety Management Certificate issued in
accordance with the International Management Code for the Safe
Operation of Ships and for Pollution Prevention (SOLAS Chapter IX);
certificates as to the ship’s hull strength and the machinery installations
issued by the classification society in question (only to be required if the
ship maintains its class with a classification society);
document of compliance with the special requirements for ships carrying
dangerous goods;
high speed craft safety certificate and permit to operate high speed craft;
dangerous goods special list or manifest, or detailed stowage plan;
ship’s logbook with respect to the records of tests and drills and the log for
records of inspection and maintenance of lifesaving appliances and
arrangements;
special purpose ship safety certificate;
mobile offshore drilling unit safety certificate;
for oil tankers, the record of oil discharge monitoring and control system
for the last ballast voyage;
the muster list, fire control plan, and, for passenger ships, a damage
control plan;
shipboard oil pollution emergency plan;
survey report files (in case of bulk carriers and oil tankers);
reports of previous port State control inspections;
232
UK PORT STATE CONTROL LEGISLATION
6.18
(xxvi)
(xxvii)
(xxviii)
(xxix)
(xxx)
(xxxi)
for ro-ro passenger ships, information on the A/A maximum ratio;
document of authorization for the carriage of grain;
cargo securing manual.
garbage management plan and garbage record book;
decision support system for masters of passenger ships;
search and rescue co-operation plan for passenger ships trading on fixed
routes;
(xxxii) list of operational limitations for passenger ships;
(xxxiii) bulk carrier booklet;
(xxxiv) loading and unloading plan for bulk carriers;
(xxxv) certificate of insurance or any other financial security in respect of civil
liability for oil pollution damage (CLC 1992).
The PSC inspector may examine all relevant certificates and documents, other than
those listed in Annex II of MSN 1775, which are required to be carried on board in
accordance with the Convention enactments.
Valid certificates are no guarantee of compliance with the Conventions. Therefore if,
after a preliminary inspection, there are “clear grounds” for believing that the condition
of a ship or its equipment or crew does not meet Convention requirements, a more
detailed inspection shall be carried out. This inspection includes further checking of
compliance with onboard operational requirements. Annex III of MSN 177515 lists
examples of clear grounds that include ships that are in the priority categories. The
inspection may cover any aspect of the ship’s structure, equipment, manning, operation
and living and working conditions covered by the Conventions.
During the inspection the inspector will use the following procedures and guidelines
for the control of ships:
—
—
—
—
6.17
principles of safe manning (IMO Resolution A.481(XII) and its Annexes,
which are Contents of Minimum Safe Manning Document (Annex 1) and
Guidelines for the Application of Principles of Safe Manning (Annex 2);
the provisions of the IMDG Code;
ILO publication “Inspection of Labour Conditions on Board Ship: Guidelines
for procedures”;
Annex 1 to the Paris MOU.
6B.2(ix) Mandatory expanded inspection of certain ships
The following categories of ships may be subject to an expanded inspection after 12
months from the last expanded inspection in the Paris MOU region by one of the
competent authorities of the member States:16
15. Annex III of Council Directive 95/21/EC as amended by Commission Directive 98/42/EC and
Directive 2001/06/EC of the European Parliament and of the Council.
16. S.I 1995/3128, reg. 7, as amended, provides as follows:
“7. Mandatory Expanded Inspection of Certain Ships
(1) A ship in one of the categories in Annex V, section A of MSN 1775 may be subject to an
expanded inspection after a period of 12 months following the last expanded inspection carried
out in a port of a State signatory to the MOU.
(2) If such a ship is selected for inspection in accordance with regulation 5(2)(b)—
(a) an expanded inspection shall be carried out; and
(b) an inspection in accordance with regulation 6 may be carried out in the period between two
expanded inspections.
233
6.18
6.18
(i)
(ii)
(iii)
(iv)
PORT STATE CONTROL IN THE UK
gas and chemical tankers older than 10 years of age, as determined on the basis
of the date of construction indicated by the ship’s safety certificates;
bulk carriers older than 12 years of age, as determined on the basis of the date of
construction indicated in the ship’s safety certificates;
oil tankers with a gross tonnage of more than 3,000 gt and older than 15 years
of age, as determined on the basis of the date of construction indicated in the
ship’s safety certificates;
passenger ships older than 15 years of age other than the passenger ships
referred to in Art. 2(a) and (b) of Council Directive 1999/35/EC of 29 April
1999 on a system of mandatory surveys for the safe operation of regular ro-ro
ferry and high speed passenger craft services.17
If these vessels have a target factor of 7 or more, the expanded inspection must be
carried out at their first visit to a port in the UK after a period of 12 months since the last
expanded inspection carried out in a port of a State signatory to the MOU.
When calculating the target factor of 7, the value awarded to ships in a category
subject to expanded inspection (+5 points) will not be included. However, the value
displayed in Sirenac or in the Paris MOU website calculator will include this element
and the corresponding target factor will therefore be shown as 12 or more.
In order to allow arrangements for expanded inspection to be made, the owners and
masters of the above-mentioned vessels are required to pass all the information listed in
Annex V, section B of MSN 1775 to the MCA before each call at a port in the UK after
12 months from the last expanded inspection in the Paris MOU region. This
information must be provided at least three days before the expected time of arrival, or
before leaving the previous port if the voyage is expected to take less than three days.
After receiving this information, the MCA will advise whether the target factor of the
ship requires an expanded inspection to be carried out at the port of destination or not. If
(3) (a) After a period of 12 months since the last expanded inspection of a ship, the owner or master
of a ship to which paragraph (1) applies shall communicate to the Maritime and Coastguard
Agency all the information listed in Annex V, section B of MSN 1775 before each call at a
port in the United Kingdom.
(b) This information shall be provided at least three days before the expected arrival time of
arrival in the port or before leaving the previous port if the voyage is expected to take fewer
than three days.
(c) Any ship not complying with the requirements of subparagraph (a) shall be subject to an
expanded inspection at the port of destination.
(4) Subject to regulation 7A, the Maritime and Coastguard Agency shall ensure that an expanded
inspection is carried out in respect of a ship to which paragraph (1) applies and which has a target
factor of 7 or more at its first visit to port in the United Kingdom after a period of 12 months since
the last expanded inspection carried out in a port of a State signatory to the MOU.
(5) For the purposes of calculating the target factor in paragraph (4) the target factor does not
include the value applicable to ships of the categories referred to in Annex V, section A of MSN
1775.
(6) An expanded inspection shall be carried out in accordance with the procedures set out in Annex
V, section C of MSN 1775.
(7) For the purposes of carrying out an expanded inspection, the inspector shall consult the public
and private databases relating to ship inspection accessible through the Equasis information
system.
(8) This regulation shall not apply to a ship which to the satisfaction of the Maritime and Coastguard
Agency has within the previous 12 months has been subject to an initial specific survey in
accordance with Article 6 of Council Directive 1999/35/EC on a system of mandatory surveys
for the safe operation of regular ro-ro ferry and high speed passenger craft services or specific
survey in accordance with Article 8 of that Directive.”
17. O.J. L 138, 1.6.1999, p.1.
234
UK PORT STATE CONTROL LEGISLATION
6.19
there is no need for an expanded inspection, then the owner or master is required to
provide the next port of call in the MOU with the information in Annex V, section B.
Information to be notified to the competent authority includes the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
name;
flag;
IMO identification number, if any;
deadweight tonnage;
date of construction of the ship, as determined on the basis of the date
indicated in the ship’s safety certificates;
for tankers—
— configuration (single hull, single hull with segregated ballast tanks, double
hull);
— condition of the cargo and ballast tanks (full, empty, inerted);
— volume and nature of cargo;
probable time of arrival at the port of destination or pilot station, as required by
the competent authority;
planned duration of the call;
planned operations at the port destination (loading, unloading, other);
planned statutory survey inspections and substantial maintenance and repair
work to be carried out whilst in the port of destination.
If the necessary information has not been provided in advance then the ship will be
subject to expanded inspection at the port of destination and may risk delay.
The procedure for expanded inspection is set out in Annex V, section C of MSN 1775
and must be followed. If an expanded inspection cannot be carried out for operational
reasons, the procedure in case certain ships cannot be inspected (reg. 7A) applies. An
initial or more detailed inspection may be carried out in the period between expanded
inspections.
On ro-ro ferries or high speed passenger craft, an expanded inspection is not required
if an initial survey or specific survey under the provisions of Directive 1999/35/EC has
been carried out to the satisfaction of the MCA in the previous 12 months.
Guidance is available on what to inspect under Annex V of the MSN 1775.18 It serves
as a consistent reference point; but, ultimately, professional judgement is used in
selecting areas for inspection.
6B.2(x) Inspection report
Following the completion of an inspection, the PSCO completes a Report of
Inspection as specified in Annex X of MSN 177519 This report will be given to the master
of the inspected ship. The master should retain the report on board for future
inspections for two years.
The inspection report must contain at least the following items:
I. General:
1. competent authority that wrote the report;
18. Annex V of Council Directive 95/21/EC as amended by Directive 2001/106/EC of the European
Parliament and of the Council.
19. Annex IX of Council Directive 95/21/EC as amended by Directive 2001/106/EC of the European
Parliament and of the Council.
235
6.19
6.19
PORT STATE CONTROL IN THE UK
2.
3.
4.
5.
6.
7.
8.
9.
10.
II.
III.
6.20
date and place of inspection;
name of the ship inspected;
flag;
type of ship;
IMO number;
call sign;
tonnage (gt);
deadweight tonnage (where relevant);
year of construction as determined on the basis of the date indicated in the
ship’s safety certificates;
11. the classification society or classification societies, where relevant, which
has/have issued to this ship the class certificates, if any;
12. the classification society or classification societies and/or any other party
which has/have issued to this ship certificates in accordance with the
applicable Conventions on behalf of the flag State;
13 name and address of the ship’s owner or the operator;
14. name and address of the charterer responsible for the selection of the
vessel and type of charterer in the case of carrying liquid or solid cargoes in
bulk;
15. final date of writing the inspection report;
16. an indication that detailed information on an inspection or a detention
may be subject to publication.
Information relating to inspection:
1. certificates issued in application of the relevant international Conventions, authority or organization that issued the certificate(s) in question,
including the date of issue and expiry;
2. parts or elements of the ship that were inspected (in the case of more
detailed or expanded inspection);
3. type of inspection (inspection, more detailed inspection, expanded
inspection);
4. nature of deficiencies;
5. measures taken.
Additional information on detention:
1. date of detention order;
2. date of lifting the detention order;
3. nature of deficiencies warranting the detention order (references to
Conventions, if relevant);
4. information on the last intermediate or annual survey;
5. indication, where relevant, of whether the classification society or any
other private body that carried out the survey has a responsibility in
relation to the deficiencies which, alone or in combination, led to
detention;
6. measures taken.
6B.2(xi) Detention
If the deficiencies found are serious, the PSCO has to decide whether the vessel should
be prevented from sailing until they are rectified. As stated under S.I. 1995 No. 3128,
236
UK PORT STATE CONTROL LEGISLATION
6.21
reg. 9, “in case of deficiencies which are clearly hazardous to safety, health or the
environment, the inspector shall detain the ship, or require the stoppage of the operation
in the course of which the deficiencies have been revealed, using powers of detention in
Convention enactments as appropriate, or issuing a prohibition notice under s. 262 of
the Merchant Shipping Act 1995, as the case may be”.
Other sanctions available to the inspector are Improvement Notices20 and Prohibition
Notices21 under the MSA 1995. These Notices require that a particular defect is repaired
within a stated period or that a particular activity ceases. These notices only apply to a
foreign ship while the ship is in the UK. Therefore, their effect on foreign vessels is
limited, apart from those that have regular trade with the UK. They can also be used
where a dangerous activity needs to be stopped.22
In order to assist the PSCO, the members of the Paris MOU have agreed a list of
deficiencies which may constitute grounds for detention. This so-called “no-go list” is
included in Annex VI of MSN 1775. The list is only a guide and it should not be seen as a
definitive list of detainable items.23 However, the detainable deficiencies listed in the
area of STCW are the only grounds for detention under this Convention.
(VDR)
A ship shall be detained if it is not equipped with a functioning VDR system when its
use is compulsory in accordance with Annex XIII of MSN 1775.
Under Annex XIII of MSN 1775, the following classes of ships must be fitted with a
VDR system meeting the performance standards of IMO Resolution A.861(20) and the
testing standards set by Standard No.61996 of the International Electronics Commission (IEC) when calling at EU ports:
VOYAGE DATA RECORDER
—
—
—
—
passenger ships built on or after July 1 2002;
for ro-ro passenger ships built before July 1 2002, by not later than the first
survey on or after July 1 2002;
for passenger ships other than ro-ro passenger ships built before July 1 2002, by
not later than July 1 2004;
ships other than passenger ships of 3,000 gt and upwards built on or after July 1
2002.
The following classes of ships, where built before July 1 2002, must be fitted with a
VDR system meeting the relevant IMO standards when calling at a EU port:
— for cargo ships of 20,000 gt and upwards, not later than the date fixed by the
IMO or, in the absence of a decision in IMO, not later than January 1 2007;
— for cargo ships of 3,000 gt and upwards but less then 20,000 gt, not later than
the date fixed by the IMO or, in the absence of a decision in IMO, not later than
January 1 2008.
If a ship is detained because it is not fitted with a functioning VDR and the defect
cannot be rectified in the port of detention, the ship may be allowed to sail to the nearest
port that can rectify it, or be asked to rectify it within 30 days.
20. MSA 1995, s. 261.
21. MSA 1995, s. 262.
22. Owen, Paul, “Port State Control in Europe” in The Work of the Harbourmaster, A Practical Guide,
London, 1998. p.224.
23. Annex VI of Council Directive 95/21/EC as amended by Commission Directive 98/42/EC and
Directive 2001/106/EC of the European Parliament and of the Council.
237
6.21
6.21
PORT STATE CONTROL IN THE UK
In the case of accidental damage sustained during a ship’s voyage to a port, the ship
will not be detained provided that:
(i)
(ii)
(iii)
(iv)
6.22
The PSCO is required to follow two basic criteria for detention of a ship. First, the
PSCO should consider detaining the ship if deficiencies are sufficiently serious to
require checking before the ship sails. The need for the inspector to return to the ship is a
measure of the seriousness of the deficiencies. It implies that the MCA must verify one
way or another, preferably by a further visit, that the deficiencies have been rectified
before departure. However, it does not impose an obligation of detention for every case.
Secondly, if a ship is going to be detained, it should be detained following the first
inspection irrespective of length of the ship’s stay. Under Annex VI of MSN 1775, a
number of questions have been provided to assist the PSCO in reaching the decision on
detention. The answers to these questions will help the PSCO to find out whether the
deficiencies found would prevent the ship from carrying out its essential safety and
pollution prevention functions during the forthcoming voyage.
In case of a detention, the detention notice may:
(i)
(ii)
6.23
due account has been given to the requirements contained in reg. I/11(c) of
SOLAS 74 regarding notification to the flag State administration, the
nominated surveyor or the recognized organization responsible for issuing the
relevant certificates;
prior to entering a port, the master or shipowner has submitted to the port
State control authority details of the circumstances of the accident and the
damage suffered and information about the required notification of the flag
State administration;
appropriate remedial action, to the satisfaction of the authority, is being taken
by the ship; and
the authority has ensured, having been notified of the completion of the
remedial action, that deficiencies which were clearly hazardous to safety,
health or the environment have been rectified.
include a direction that a ship shall remain in a particular place, or shall move
to a particular anchorage or berth; and
specify circumstances when the master of the ship may move his ship from a
specified place for reasons of safety or prevention of pollution.
The detention order may also specify the circumstances when a master may move his
ship from the place of detention for reasons of safety or prevention of pollution. In order
to make such a decision to direct a ship the harbour authorities need to be consulted.
The detention notice or stoppage of an operation shall not be lifted until the MCA
establishes that the ship can, subject to any necessary conditions, proceed to sea or the
operation be resumed without risk to the safety and health of passengers or crew, or risk
to other ships, or without there being unreasonable threat to or harm to the marine
environment. In other words, a detained ship will only be released once the PSCO is
satisfied that the deficiencies found have been properly rectified. If some repairs cannot
be made in the port of detention, the ship may be allowed to proceed to a repair yard
provided adequate temporary repairs are made and it is safe for the ship to make the
voyage. Weather limitations and other conditions may be placed on the ship.
If a ship leaves a port of a member State to proceed to a repair yard without complying
with the conditions imposed, or does not call into the specified repair yard, the ship is not
238
UK PORT STATE CONTROL LEGISLATION
6.25
permitted to enter any port of a member State until the owner has provided evidence to
the satisfaction of the detaining port State that the ship fully complies with the applicable
requirements of the Conventions. In the UK, harbour authorities are notified of banned
ships in writing by the Maritime and Coastguard Marine Office in their area. If a ship
proceeds to sea from a port in the UK without complying with the conditions
determined by the MCA, and fails to proceed to the nearest appropriate repair yard
available, the MCA shall immediately alert the competent authorities of all the other
member States.
A banned ship seeking entry to a port should be informed that, under S.I. 1995 No.
3128, reg. 13(5), it is not permitted to enter. An owner or master contravening a ban is
liable to a fine and up to two years’ imprisonment. In the event of force majeure or
overriding safety or pollution prevention considerations, access may be permitted by the
Secretary of State, but, even in such a case, only when the MCA is satisfied it is safe to
enter. In such cases, it is essential that there has been consultation and co-operation with
the harbour authorities.
On September 20 1999, the MCA banned the Nigerian-flagged oil tanker Delmar
Eagle from entering any European port under the Paris MOU after the vessel left
Penzance on September 16 while still under detention and did not return.24 The ban will
be lifted if the vessel presents itself for a complete survey and inspection. This is the
second ship to be banned by the UK since the port State control procedure came into
effect in 1995.
In exceptional circumstances, where the overall condition of a ship is obviously
substandard, the inspector may, in addition to detaining the ship, suspend the
inspection of that ship until the responsible parties have taken the steps necessary to
ensure that it complies with the relevant requirements of the Conventions.
When a ship is detained, the MCA is required to inform immediately and in writing
the ship’s flag administration, or if this is not possible the consul, or, in his absence, the
nearest diplomatic representative of the State of the flag administration (and where
relevant to also notify nominated surveyors or recognized organizations responsible for
the issue of class and other certificates on behalf of the flag administration) of all the
circumstances relating to the decision to detain the ship. This notification will include
the inspection report. Customarily, the harbourmaster is also contacted at this time. The
reason for such a contact is to enable the harbourmaster to plan his shipping movements
and berthings.
6.24
ACCESS REFUSAL NOTICES
Since July 22 2002, PSCOs in the Paris MOU region have had a new power to issue
access refusal notices. This power derives from EC Directive 2001/106/EC and is
reflected in the Paris MOU. The Directive has been implemented in the UK by S.I. 2003
No. 1636.
This Regulation applies to a ship falling within one of the following categories:
—
gas and chemical tankers;
24. The Delmar Eagle was originally detained on February 11 1999 at Falmouth due to a number of serious
deficiencies including no crew certificates of competency on board, master and mate not on board, steering
gear inoperative, liferaft hydrostatic release unit not correctly rigged, flares out of date and defective lifejackets.
The vessel had been on route to Lagos in Nigeria when she experienced problems with her steering gear
approximately 20 miles west of Land’s End and was detained following a routine inspection after she had been
towed into port. See MCA Press Notice MCA 368/99.
239
6.25
6.25
PORT STATE CONTROL IN THE UK
—
—
—
bulk carriers;
oil tankers;
passenger ships.
Under this new power, the PSC has the right to serve an access refusal notice on a
vessel falling within one the categories if:
— the vessel is registered in a state which is on the blacklist in the annual Paris
MOU report and has been detained more than twice in the last 24 months in a
Paris MOU port; or
— the vessel is registered in a state which appears as “high risk” or “very high risk”
in the blacklist in the annual Paris MOU report and the vessel been detained
more than once in the previous 36 months in a Paris MOU port.
A ship registered with a “very high risk” or “high risk” flag is banned after a second
detention in the MOU region in the last three years. A ship registered with a flag in a
lower risk category on the blacklist is banned after a third detention in the MOU region
in the last two years.
A ship must call at a port and be detained before an access refusal notice may be
issued. The notice may be served after the vessel is authorized to leave the second or
third detaining port, as the case may be. The ban takes effect when the ship is authorized
to leave the port of detention.
The Paris MOU blacklist takes effect from July 1 in the year that it is published in the
Paris MOU annual report. In calculating the number of detentions, detentions from
January 22 2002 are taken into account.
The competent authority of the port in which the ship is detained for the second or
third time, as appropriate, must inform the master and the owner or the operator of the
ship in writing of the access refusal order served on that ship. The competent authority
must also inform the flag State administration, the classification society concerned, the
other member States, the Commission, Sirenac and the MOU Secretariat. The access
refusal order will take effect as soon as the ship has been authorized to leave the port after
the deficiencies leading the detention have been remedied.
The refusal of access notice carries a right of appeal and compensation.
In order to have an access refusal order lifted, the owner or the operator must address a
formal request to the competent authority of the member State that imposed the access
refusal order. The request must be accompanied by a certificate from the flag State
administration showing that the ship fully conforms to the applicable provisions of the
international Conventions. The request for the lifting of the access refusal order must
also be accompanied, where appropriate, by a certificate from the classification society
that has the ship in class showing that the ship conforms to the class standards stipulated
by that society.
The order may only be lifted following a reinspection of the ship at an agreed port by
the inspectors of the competent authority of the member State that imposed the access
refusal order and if evidence is provided to the satisfaction of this member State that the
vessel fully complies with the applicable requirements of the international Conventions.
The reinspection will consist of an expanded inspection and all costs of this inspection
will be covered by the owner or the operator of the ship.
If the member State is satisfied with the results of this expanded inspection, then the
240
UK PORT STATE CONTROL LEGISLATION
6.28
access refusal order must be lifted and the owner or the operator of the ship must be
informed thereof in writing.
6B.2(xii) Procedure applicable in the absence of ISM certificates
With the amendment made to S.I. 1995 No. 3128 by S.I. 1998 No. 1433, if an
inspection reveals that a copy of the document of compliance or the safety management
certificate required by the ISM Code is not on board a vessel to which the ISM Code is
applicable at the date of inspection, the inspector shall detain the ship.25
Despite the absence of the documentation required by the ISM Code, if the inspection
reveals that there are no other deficiencies warranting detention, the MCA may lift the
detention order for the purpose of avoiding port congestion. Whenever such a decision is
taken, the MCA shall immediately alert the competent authorities of the member States.
Where deficiencies which are clearly hazardous to safety, health and the environment are
found and cannot be rectified in the port of detention, the relevant provisions of S.I.
1995 No. 3128, reg. 13, apply.
A ship that, in order to avoid port congestion, proceeds to sea from any port in any
member State following a release, shall not enter any port in the UK or in the Paris MOU
region until the owner has provided evidence to the satisfaction of the competent
authority of the member State where the ship was detained that the ship fully complies
with the requirements of the ISM Code.
Despite the above provision, access to a specific port may be permitted by the
Secretary of State in the event of force majeure or overriding safety considerations, or to
reduce or minimize the risk of pollution or to have deficiencies rectified, provided
adequate measures to the satisfaction of the MCA have been implemented by the owner
or the master of the ship to ensure safe entry.
(ISPS ) CODE
The UK fully supports the July 1 2004 deadline for the full implementation of the
ISPS Code. All commercial, non-passenger ships and companies have been directly
advised by the MCA of the requirements for compliance with the ISPS Code. January 31
2004 was given as a deadline for the submission of non-passenger SSPs. The gap
between this and the implementation date of the ISPS Code will provide enough time for
the approval of the plan and its implementation on the ship before a verification audit
takes place and an ISSC issued. The effect of not having an ISSC after July 1 2004 will be
to seriously hamper the trading ability of any ship.
Like other Paris MOU authorities, since January 1 2004 the MCA’s PSCOs have been
asking ships’ masters whether a valid ISSC is on board. Ships without an ISSC are issued
with a letter of warning advising that the ISPS Code will be enforced from its
implementation date, and of the likely consequences of not having a valid ISSC on board
and not operating an effective security system.
6.26
INTERNATIONAL SHIP AND PORT FACILITY SECURITY
6B.2(xiii) Costs
In accordance with the Merchant Shipping (Fees) Regulations 1995, as amended, a
fee will be charged for any inspection that results in detention and any re-visits to check
25. S.I. 1998 No. 1433, reg. 6.
241
6.27
6.28
6.28
PORT STATE CONTROL IN THE UK
that deficiencies have been rectified. All costs relating to follow-up inspections and
detention shall be charged to the owner or his representative in the UK. The MCA
charges an hourly rate for surveyor time from the point of detention.
Any detention made pursuant to S.I. 1995 No. 3128 shall not be lifted until fees
payable under the Merchant Shipping (Fees) Regulations 1995, as amended, in respect
of any inspection leading to it or arising from it have been paid, or the Secretary of State
has been provided with sufficient security for the fees.
6.29
6B.2(xiv) Appeal procedures
UK legislation provides for appeal and compensation for a master or owner against
the issue of a notice of detention. The appeal is referred to an independent arbitrator for
decision.
The rights of appeal and compensation for an owner or master relating to a detention
notice or access refusal notice are provided in regs. 10–12 of S.I. 1995 No. 3128, as
amended and in MSA 1995.
The master of a ship issued with a detention notice or access refusal notice will be
informed of the appeals procedure and separate guidance notes on the appeals
procedure will be given to the master or owner on request.
In order to appeal for an arbitrator, the Notice of Reference form, or a letter giving the
same information, has to be sent by post or facsimile to the Inspector within 21 days from
receipt of the detention notice. The 21 days time-limit will be strictly applied.
Regulation 11(1) of S.I. 1995 No. 3128 states:
“Any question as to whether any of the matters specified in relation to a ship in a detention notice
in pursuance of a power of detention or refusal of access to which this regulation applies in
connection with any opinion formed by the inspector constituted a valid basis for that opinion
shall, if the master or owner of the ship so requires by a notice given to the relevant inspector within
21 days from the service of the detention notice, be referred to a single arbitrator appointed by
agreement between the parties for that question to be decided by him.”
Although there is no clear guidance about the wording of the notice to be given by the
owner, it is suggested that in the notice the owner/operator must make it clear that the
aim of the notice is to challenge the detention notice with full details and to express a
wish for the referral of the issue to arbitration.
A notice of appeal should be sent to the MCA office issuing the detention order.
6.30
The provisions of S.I. 1995 No. 3128 are similar to those provided under MSA 1995
as amended. The MSA gives specific power to a variety of people to issue detention or
prohibition notices where the inspector believes that the ship is “dangerously unsafe”.26
26. Under the modified s.94 of MSA 1995 the meaning of “dangerously unsafe ship” is amended as follows:
“(1) For the purposes of ss.95, 96, 97 and 98 a ship in port is ‘dangerously unsafe’ if, having regard to
the nature of the service for which it is being used or is intended, the ship is, by reason of the matters
mentioned in subsection (2) below, unfit to go to sea without serious danger to human life.
(1A) For the purposes of those sections a ship at sea is ‘dangerously unsafe’ if, having regard to the
nature of the service for which it is being used or is intended, the ship is, by reason of the matters
mentioned in subsection (2) below, either—
(a) unfit to remain at sea without serious danger to human life, or
(b) unfit to go on a voyage without serious danger to human life.
(2) Those matters are—
(a) the condition, or the unsuitability for its purpose, of—
(i) the ship or its machinery or equipment, or
(ii) any part of the ship or its machinery or equipment;
(c) undermanning;
242
UK PORT STATE CONTROL LEGISLATION
6.32
Similar appeal provisions apply to detention or prohibition notices as well. However, the
powers of the PSCO are wider, not being limited to serious danger to human life. The
PSCO can detain a vessel when the vessel is hazardous to safety, health or the
environment.
The qualifying criteria for the arbitrator are set out in reg. 11(6) of S.I. 1995 No. 3128.
The person must:
(i)
(ii)
(iii)
(iv)
hold a certificate of competency as a master mariner or as a marine engineer
officer class 1 or a certificate equivalent to any such certificate;
be a naval architect; or
be a barrister or solicitor-advocate of at least 10 years’ standing; or
be a person with special experience of shipping matters, of the fishing industry,
or of the activities carried on in port.
When the Notice of Reference is sent to the inspector, a name of an arbitrator can be
given provided that he has the qualifications given above. Under the Regulations, there
is no requirement for the arbitrator to be a professional, or a member of the London
Maritime Arbitrators’ Association or equivalent. There is also no list of approved or
qualified arbitrators. If an agreement cannot be reached between the parties on a name
of a single arbitrator then an arbitrator can be appointed by a judge of the High Court.
Section 96 of the Merchant Shipping Act 1995 (arbitration) shall apply in relation to
an access refusal notice as it applies to a detention notice under s. 95(3) of the Act.
The appeal can be stopped at any time, including when the arbitration is already
under way. In such cases, costs have to be paid, even if the appeal is stopped before the
arbitrator has started to hear it.
Making a Notice of Reference will not suspend the detention. The arbitrator also has
no power to suspend the detention itself.
The arbitrator is required to make a decision whether any matter specified in the
detention notice or access refusal notice constituted a valid basis for the PSCO’s
decision to detain the vessel or to ban access from Paris MOU ports.
Under reg. 11(3) of S.I. 1995 No. 3128, it is possible for the arbitrator to take into
account “any other matters not specified in the detention notice or access refusal notice
which appear to him to be relevant as to whether the ship was or was not liable to be
detained”. Under the normal rules of evidence, it is possible for the inspector to
introduce further evidence of deficiencies in the vessel. These deficiencies need not be
mentioned in the original notice of detention. Further deficiencies discovered after
issuance of the original order can be used to justify the original detention order and can
be accepted by the arbitrator.
During the course of arbitration, the arbitrator has the same power as an inspector
appointed under MSA 1995.27 Therefore, the arbitrator may at any reasonable time
board the vessel, take samples of any articles or substances found in the premises of the
ship, require interviews with officers and crew or anyone whom he believes may have the
relevant information. He may require the production of, and inspect and take copies of,
any other documents in the owners’ possession.
It is a criminal offence to intentionally obstruct an inspector or arbitrator or to make a
(d) overloading or unsafe or improper loading;
(e) any other matter relevant to the safety of the ship;
and are referred to in those sections, in relation to any ship, as ‘the matters relevant to its safety’.”
27. Under s. 259, Powers of inspectors in relation to premises and ships.
243
6.31
6.32
6.32
PORT STATE CONTROL IN THE UK
false statement. Such an offence carries a maximum sentence of two years’ imprisonment and/or a £50,000 fine. However, the right to legal representation and legal
privilege is preserved.
The arbitrator will give his decision and his reasons for it in writing. It will be binding
upon the inspector and the applicant. The cost of arbitration up to and including the
arbitrator’s written decision will be divided between the applicant and the Department
for Transport by the arbitrator. Normally:
— if the arbitrator does not cancel or modify the detention notice, the applicant will
pay its own costs and the reasonable costs of the Department for Transport, and
of the arbitrator;
— if the detention notice is cancelled, the Department for Transport will pay its
own costs plus the applicant’s reasonable costs and the costs of the arbitrator;
— if the detention notice is simply modified to a lesser or greater extent by the
arbitrator, the above costs will be divided as the arbitrator deems reasonable.
However, it is possible to ask the inspector to agree to different rules or the
arbitrator to change them.
The inspector is a public officer and the MCA is a public office which is vicariously
liable for the actions of the inspector. Under reg. 2(2) of S.I. 1995 No. 3128, an
inspector has been defined as “a person duly authorized by the Secretary of State to carry
out inspections required by these Regulations”. Under S.I. 1995 No. 3128, reg. 14(4),
as amended, the PSCO is required to carry an identity card containing specific
information.
The statutory power of detention must be exercised with honesty and in good faith. It
must not be used for another purpose. Therefore, port State control inspectors must act
within their statutory power and must not have any direct financial or proprietary
interest in the outcome of the proceedings. This principle has been stated under reg.
14(3) of S.I. 1995 No. 3128, which states that the PSCO should have no commercial
interest in the port or the ship and should not be doing work for one of the classification
societies.
Regulation 14(3) provides as follows:
“An inspector and any person assisting him shall have no commercial interest either in the port of
inspection or in the ships inspected, nor shall an inspector be employed by or undertake work on
behalf of non-governmental organizations which issue statutory and classification certificates or
which carry out the surveys necessary for the issue of those certificates to ships.”
The arbitrator has to decide whether the PSCO was justified in reaching his
conclusions on the information available to him. The owner bears the burden of proof of
satisfying the arbitrator that the PSCO’s conclusions were invalid.
Under the Arbitration Act 1996, it is generally difficult to appeal against an
arbitrator’s award; however, if the master or owner is concerned that the law was clearly
incorrectly applied or the arbitration conducted in an unfair way, then legal advice may
be taken on whether the High Court would overturn the decision on those grounds.
6.33
6B.2(xv) Compensation
Apart from the power to cancel the detention notice, the arbitrator has a power to
award compensation.
244
UK PORT STATE CONTROL LEGISLATION
6.34
Under reg. 12 of S.I. 1995 No. 3128, it is stated that, if on a reference under reg. 11
relating to a detention notice or access refusal notice:
(i) the arbitrator decides that the owner has proved that any matter did not
constitute a valid basis for the inspector’s opinion; and
(ii) it appears to him that the owner has proved that there were no reasonable
grounds for the inspector to form that opinion,
the arbitrator shall award the owner of the ship such compensation in respect of any loss
suffered in consequence of the detention of the ship or the service of the access refusal
notice as the arbitrator thinks fit. Compensation for the owner’s lost freight, port
expenses, detention and legal costs could be included in the compensation.
The award of compensation must be in respect of loss suffered in consequence of the
detention and the owner has to satisfy the arbitrator that the claimed losses have been
incurred as a result of the detention. If the losses include expenditures which would have
been incurred in any event, these would not be recoverable as compensation. There is no
minimum or maximum level of compensation stated in the Regulations.
If an inspector unreasonably detains a vessel, the right of the vessel owner may be
restricted to the compensation provided under regs. 11 and 12 of S.I. 1995 No. 3128. In
other words, if the inspector acts within his powers but only misinterprets or misapplies
them, the shipowner’s right of compensation would be limited to the compensation
provided under those two regulations. However, if the inspector exceeds the rights
granted to him then it may be possible for the shipowner to pursue his rights of action
under common law, i.e. negligence.
COMPLAINTS PROCEDURE
The MCA operates an administrative procedure to investigate complaints on any
aspects of the services provided by the MCA, which may include inspection and
detention. The procedure is set out in service standards published in the MCA Business
Plan.
A person dissatisfied with the service received may ask to speak to the regional
manager or headquarters branch, which will help to sort out the problem immediately.
Contact details are available from the MCA website at www.mcga.gov.uk. MCA
headquarters may also be contacted by fax on +44 (0)2380 329104.
If the response is not satisfactory, then a complaint may be made to the chief
executive, who will make sure that the complaint is thoroughly investigated. The MCA
undertakes to acknowledge a written complaint within three working days and
investigate and provide a full response within 15 days.
If the customer is dissatisfied with the way in which the MCA has handled the
complaint, a request may be made for reference to an independent adjudicator. This
does not remove the right of the customer to refer the complaint to their Member of
Parliament or ask for referral to the national parliamentary commissioner for
administration.
245
6.34
6.35
PORT STATE CONTROL IN THE UK
6B.3 Examples of Detention Cases Under UK Port State Control28
6.35
Type of vessel
Flag
Date of detention
Cause of detention
Place of detention
Ro-ro cargo
Spain
Dec 16 2003
Detained for two
days
11 recorded
deficiencies, 15
ppm alarm and
interface
inoperative
Southampton
General cargo
Russia
Nov 3 2003
Detained for five
days
7 recorded
deficiencies.
Master unable to
provide any
evidence that
cargo was loaded
and secured in
accordance with
Cargo Securing
Manual
River Tees
General cargo
Norway
Oct 11 2003
Detained for five
days
8 recorded
deficiencies. Airstart system fault
in main engine
affecting safe
starting and
manoeuvring of
vessel
Avonmouth
General cargo
Turkey
Sept 8 2003
Detained for three
days
20 recordable
deficiencies.
Anchor lights not
as required. Doors
to steering gear
and engine room
incapable of
closure. Fire and
boat drill
unsatisfactory
River Crouch
General cargo
Albania
Aug 4 2003
Detained for four
days
34 recorded
deficiencies. ISM
and Document of
Compliance
certification
expired. Charts
and nautical
publications
expired. Magnetic
compass
unreadable
Harwich
28. A full list of foreign-flagged ships detained following inspections by surveyors from the MCA is placed
on the internet at www.mcga.gov.uk. This table is based on the information given on that website.
246
EXAMPLES OF DETENTION CASES UNDER UK PORT STATE CONTROL
6.35
Type of vessel
Flag
Date of detention
Cause of detention
Place of detention
Oil tanker
Poland
Jul 24 2003
Detained for three
days
28 recorded
deficiencies. No
valid Cargo Ship
Safety Radio
Certificate. No
Procedure &
Arrangements
manual on board
— ship carrying
noxious liquid
cargo. Both radars
inoperative. No
large-scale chart
for intended
voyage.
Ship ran aground
on Jul 23 2003
while using smallscale chart
No.2182A for the
North Sea. No
sailing directions
for intended
voyage. Fire and
Abandon Ship
drills
unsatisfactory.
Key personnel
unable to
communicate
effectively in
English. Released
for single voyage
in ballast
condition to a
Polish port for flag
State survey and
ISM audit
Great Yarmouth
Oil tanker
Malta
Jun 24 2003
Detained for four
days
28 recorded
deficiencies.
Lifeboats not
operationally
ready. Abandon
Ship drill poor.
Emergency
lighting not as
required. Lifeboats
not properly
maintained.
Lifeboat davits/
rollers seized.
Quick-closing
valves leaked fuel
when shut. Safety
Management
System failed to
ensure adequate
maintenance of
ship and its
equipment
Belfast
247
6.35
PORT STATE CONTROL IN THE UK
Type of vessel
Flag
Date of detention
Cause of detention
Place of detention
General cargo
Hong Kong
May 2 2003
Detained for 20
days
25 recorded
deficiencies.
Duct keel access
corroded through.
Port and starboard
engine room fire
dampers badly
wasted.
Maintenance
procedures failed
to ensure
compliance with
SOLAS and LL
requirements.
Crew showed lack
of familiarity with
self-contained
breathing
apparatus during
fire drill. Vessel
further detained
by harbour master
in respect of a
pollution incident
Blyth
Ro-ro cargo Vessel
Ukraine
April 11 2003
(at last report,
vessel was still
under detention at
end April)
37 deficiencies
recorded before
inspection
suspended.
Shore-based
maintenance
contract and
Safety Radio
Certificate
expired.
Machinery spaces
littered with
rubbish. Excessive
oil in engine room.
Bunker tunnel
filthy. Soundingtube closures kept
open or missing.
Ship also placed
under Admiralty
Marshal arrest
Sheerness
248
EXAMPLES OF DETENTION CASES UNDER UK PORT STATE CONTROL
6.35
Type of vessel
Flag
Date of detention
Cause of detention
Place of detention
General cargo
Norway
Mar 11 2003
Detained for seven
days
Runcorn
General cargo
Thailand
Feb 25 2003
Detained for four
days
14 recorded
deficiencies. Air
vents corroded
and seized.
Starboard engine
room vent
corroded and
holed at deck.
Structural integrity
of hatch covers
compromised.
Oily water
separator
inoperative. Main
(port) fire pump
missing
15 recorded
deficiencies.
Engine room very
oily. INMARSAT
C inoperative.
GPS receiver
inoperative. Fire
door blocked.
Breakdown in
maintenance of
ship and
equipment
Bulk carrier
Turkey
Jan 6 2003
Detained for a
total of 24 days
54 recorded
deficiencies.
Several ventilators
on poop deck
incapable of
weathertight
closure. Port
engine room vent
corroded through
below damper.
Engine room
casing corroded
through. No.4
FOT vent
corroded through
at main deck level.
No. 2 masthouse
corroded through.
Numerous deck
longitudinals
corroded through
and detached.
Tees Dock and
(Jan 22 2003)
Ipswich
249
Immingham
6.35
Type of vessel
PORT STATE CONTROL IN THE UK
Flag
Date of detention
Cause of detention
2MF/HF radio
defective, and
radio battery
reserve supply
defective. Pilot
book and several
charts for intended
voyage out of date.
ISM system failed
to maintain
compliance with
SOLAS and LL
requirements.
Vessel released for
single voyage to
Ipswich where
inspection of hold
framing to be
carried out.
A further 14
deficiencies
recorded during
the Ipswich
inspection. LL,
SOLAS safety
construction and
safety equipment
certificates expired
(22/01/03).
Anchor and notunder-command
lights wrong type.
Sidelight fixing
brackets corroded.
Lights misaligned.
Released from
detention on Jan
31 for single
unloaded voyage
to repair yard
250
Place of detention
CHAPTER 7
The EU Directive on Port State Control
7A INTRODUCTION
Maritime transport has vital importance to Europe’s economy. Thirty per cent of
trade within the Community and 90 per cent of its external trade is carried by sea.
Therefore, the promotion of activities to increase the strength of Europe’s maritime
industry is a necessary part of the EU’s Common Transport Policy.1
Shipping safety is a concern extending far beyond the EU. The sea and activities
connected with it are of interest to the whole international community. The IMO is the
prime source of regulations relating to shipping industry. The European Commission
sits as an observer on the work of the IMO. In practice, despite all the international
Conventions laying down “worldwide” safety Regulations, the safety regimes actually
attained vary widely. The EU devises common approaches for implementation and
practical application of IMO rules by all vessels sailing in Community waters.2 However,
following the Erika incident, it has been stated by the Commission that the pressure of
public opinion has prompted it to propose action at Community level. According to the
Commission, this action “is designed to bring about a change in the prevailing mentality
in the seaborne oil trade. More powerful incentives are needed in order to persuade the
carriers, charterers, classification societies and other key bodies to give a higher profile to
quality considerations. At the same time, the net should be tightened on those who
pursue short-term personal financial gain at the expense of safety and the marine
environment”.3
In the field of maritime transport, the EU has the competence to make legislation and
to create a legal order that pre-empts national law. In the 1960s, the Community did not
take any action towards addressing the safety and the protection of marine environment
issues. However, in the 1970s, major oil pollution disasters such as the Amoco Cadiz,
prompted the Community to deal with the problems of the shipping industry in a more
systematic manner. Following the Amoco Cadiz disaster, the European Council called
on the Commission to come forward with proposals to control and reduce pollution
caused by oil spills. However, in practice little has been done. Once the momentum
generated by an accident has subsided, member States have tended to avoid binding
measures at Community level as unanimity used to be required for decision-taking.
With the advent of qualified majority voting, the Council started to build up a common
1. Speech by Neil Kinnock to the Dublin Maritime Conference, “Is the European Union Seafarer an
Endangered Species?”, Dublin, December 17 1996, p.1.
2. European Union, “Transport. Background, Summary and Notes on Maritime Safety and Pollution
Prevention Legislation”, Background and Summary (October 11 1999) p.1.
3. European Union, “Maritime Safety, Safety of the Seaborne Oil Trade” (January 10 2001) p.1.
251
7.1
7.2
7.2
THE EU DIRECTIVE ON PORT STATE CONTROL
maritime safety policy including the adoption of Directives on port State control and
classification societies, and a package of texts on the safety of passenger vessels, transport
of dangerous goods, and waste reception facilities. All these major achievements in EU
maritime safety law started in 1993.
Following the grounding of the oil tanker Braer off the Shetland Islands, the Council
held a special meeting on transport and the environment in Brussels in January 1993.
During this meeting, an agreement was reached on the measures to be taken at various
levels (member State, Community and the IMO) on maritime safety and pollution
prevention. Following this meeting, the Commission submitted a communication on a
“common policy on safe seas”4 on which the Council in turn adopted a Resolution on
June 8 1993. The Commission communication proposed a consistent programme for
harmonized implementation of the existing international rules in the Community;
uniform application by coastal States of the international rules to vessels of all flags when
operating in Community waters; coordinated, harmonious development of navigational
aid and traffic surveillance facilities; and new initiatives by the international authorities
to improve shipping safety. The Council Resolution in turn stressed that the objectives
of the Community’s further action on shipping safety should be:5
(i)
(ii)
(iii)
7.3
to tighten up ship inspections and withdraw substandard vessels from
Community waters;
to improve shipping safety;
to identify environmentally sensitive areas, on the basis of current legislation
and international guidelines, and to propose specific measures for those areas
to the IMO.
In the first three years of the implementation of the policy on safe seas, several
measures were adopted that bind member State administrations, as well as the private
sector, to effective compliance. These measures establish a set of basic rules to be
respected by all suppliers of maritime transport services.
Further measures have been proposed in the 1996 policy document “Towards a New
Maritime Strategy”. Under this “Quality Shipping Campaign”, the Commission
proposed to implement the future maritime strategy on safety. The campaign tackled
mainly the following areas:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
pursuit of a policy based upon a convergent application of internationally
agreed rules—as far as possible, this policy should be applied to all flags;
a joint effort by the EU and the member States in the IMO to agree on a
worldwide basis certain conditions for flag administrations and their ship
registers;
an EU legal instrument, most likely a Directive, laying down certain principles
for member States’ shipping registers;
to strengthen port State control through operational links with third countries;
to promote self-regulatory codes of behaviour in shipping;
to encourage operators to achieve high quality standards;
to consider legislative action on financial sanctions for cargo owners who
knowingly or negligently use substandard shipping;
4. “A Common Policy on Safe Seas” (COM (93) 66 final, February 24 1993).
5. European Union, “Transport. Background, Summary and Notes on Maritime Safety and Pollution
Prevention Legislation”, Background and Summary, (October 11 1999) p.2.
252
PORT STATE CONTROL IN THE EU
(viii)
(ix)
7.4
to examine the question of mandatory third-party liability coverage in shipping
as a condition for entry into Community ports;
to consider legislative action to support any agreement made between carriers
and unions on terms and conditions of work on board ferries providing regular
services to and from Community ports.
Following these developments in EU maritime safety law, there came three measures
designed to drastically reduce the number of substandard ships in EU waters. These are:
(i)
(ii)
(iii)
the Directive concerning the enforcement, in respect of shipping using EU
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 (the port State control Directive);
the Directive on common rules and standards for ship inspection and survey
organizations and for the relevant activities of maritime administrations (the
classification societies Directive);
the Directive on the Minimum Level of Training of Seafarers.6
7B PORT STATE CONTROL IN THE EU
The core Commission policy in enforcing international rules is the 1995 Directive,
95/21/EC, on port State control. This Directive is designed to eliminate or deter
substandard operators from trading in European waters.
When one considers the existence of the Paris MOU on Port State Control, the
necessity of a European Directive on the same subject is questionable.
The Paris MOU was set up in 1982 in response to a proposal of the Commission. The
member States set up an MOU without the involvement of the Community. The
Commission accepted the memorandum with the provision that member States should
succeed in drastically reducing substandard shipping operating to and from Community
ports. However, ten years after the establishment of the Paris MOU, in its annual report
it was clear that the number of substandard ships trading to European ports had again
dramatically increased. Despite the efforts of many port State control authorities and
officers, the memorandum did not achieve the intended goals. The examination of
MOU data illustrated a number of significant facts:7 For example, in some member
States the number of ships detained was ten times lower than in those with the highest
detention rate. During the entire first ten years of the Paris MOU, the detention rate
6. The aim of this Directive is to remove substandard crews by providing for the strict enforcement of
training standards:
— All operational crews working on a member State ship are required to meet the current training
standard set by the IMO STCW Convention;
— On oil, chemical and liquefied gas tankers the operational crew are additionally required to speak
a common working language and for other types of ship they are required to be able to
communicate at least on safety matters;
— On passenger ships, the crew dealing with the safety of passengers are required to speak the
language or languages of the principal nationalities of passengers carried on board or English
where appropriate;
— Ships inspected under port State control rules are also required to satisfy these standards and
ships flying the flag of a country which has not ratified the STCW Convention will be inspected as
a priority.
7. Salvarani, R., “The EC Directive on Port State Control: A Policy Statement”, (1996) 11 International
Journal of Marine and Coastal Law, p.228.
253
7.4
7.4
7.5
THE EU DIRECTIVE ON PORT STATE CONTROL
ratio varied between 1:10 and, in certain years, 1:30. This showed that member
countries of the Paris MOU were not applying the memorandum correctly. Therefore,
the first objective of the Directive was to make the commitments of the memorandum
binding and uniform. The second objective was to improve the MOU’s targeting
system. The third objective was to harmonize the rules on detention of substandard
vessels. Through these objectives the Directive aims drastically to reduce the number of
substandard vessels in EU waters.
In 1995, the European Community incorporated the Paris MOU into its own
legislation as Directive 95/21/EC. The full title of the Directive is “Directive 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”.
The Directive was adopted on June 19 1995 and it has been fully operational since July
1996. The adoption of this Directive and its implementation by the member States have
greatly strengthened the provisions of port State control in the Community and in the
whole Paris MOU region.
Although the subject-matter of other Directives8 relate to the problem of substandard
shipping, the Directive is the first comprehensive response on the part of the EU to the
issue of port State control. By this specific action, the Directive responds to requests laid
down in the above-mentioned Council Resolution on a Common Policy on Safe Seas of
June 8 1993.
The Directive addresses the imbalance caused by the failure on the part of certain flag
States to implement and enforce international standards. The use of a Directive implies
that member States have to implement the contents thereof, but it is up to the member
States to choose the form and method of implementation.
When one compares the Directive on Port State Control with the Paris MOU, some
differences arise.9 For instance, the Directive is aimed at the member States of the EU:
the Paris MOU is an agreement between several maritime authorities. The Directive is
legally binding and, therefore, the wording of the Directive leaves less discretion to the
member States10 than the Paris MOU to the maritime authorities participating in it. As
stated under Art. 20(1) of the Directive, each member State is required to implement the
Directive by introducing the domestic legislation. As the Paris MOU is not legally
binding, it leaves more discretion to member States. The approach taken under the
Directive in the determination of the body of Conventions, protocols and amendments
is different to that of the Paris MOU. Article 2(1) of the Directive refers to “the Protocols
and amendments to these Conventions and related codes of mandatory status, in force
at the date of adoption of this Directive under the definition of Conventions”. The Paris
MOU, s. 2.1, lists each particular Convention falling under the term “relevant
instrument”. Section 2.3 of the MOU determines that only Conventions, protocols and
8. For instance, Art. 12(1)(a) of Directive 94/57/EC of November 22 1994 ((1994) O.J. L 319/20), states
that the non-fulfilment of the criteria for classification societies “shall be taken as one of the primary criteria for
selecting ships for inspection”; and Art. 10 of Directive 94/58/EC of November 22 1994 (1994) O.J. L 319/28)
obliges member States to give priority to the inspection of certain ships with respect to the level of vocational
training and competence of their crews.
9. Molenaar, E.J., “The EC Directive on Port State Control in Context”, (1996) 11 International Journal of
Marine and Coastal Law 2, pp.258–259.
10. See Art. 20(1) of the Directive, which provides that “Member States shall adopt the laws, regulations
and administrative provisions necessary to implement this Directive not later than June 30 1996 and shall
forthwith inform the Commission thereof”. (Emphasis added.)
254
PORT STATE CONTROL IN THE EU
7.7
amendments “in force” will be applied. The inclusion of the clause “in force at the date
of adoption” indicates that protocols, amendments and related mandatory codes which
should be applied by the member States need to be continuously updated and specified.
The Paris MOU depends on political pressure to ensure compliance with the rules set
out under it; the EU has the right to start judicial proceedings before the European
Court of Justice (ECJ) against member States on the ground of non-compliance with
their obligations under the EC Treaty. For instance, the Commission started
proceedings against Belgium for failure to implement a Directive which, inter alia,
required standardization of identity cards for its PSCOs.
The ECJ has ruled against Italy for failing to comply with Directive 95/21/EC, which,
inter alia, requires a member State to formulate common rules and standards for ship
inspections. In Case C-315/98, having received no information concerning the
implementation of Directive 95/21/EC by Italy, the Commission requested the Italian
government to submit its observations in accordance with Art. 169 of the EC Treaty
(now Art. 226) on January 16 1997. By reply dated April 30 1997, the Italian
government informed the Commission that Directive 95/21/EC was listed in Schedule
D to the draft Community Law for 1995–1996. Considering that no measures had been
adopted to implement the Directive on November 24 1997, the Commission sent the
Italian government a reasoned opinion in accordance with Art. 169 of the EC Treaty,
calling on it to adopt such measures within two months. On February 13 1998, the
Italian authorities sent the Commission a draft regulation implementing the Directive;
on May 26 1998, they informed it that Law No.128 had been adopted on April 24 1998.
Directive 95/21/EC was included in Sch. D to that law, in a list of Directives yet to be
implemented by ministerial regulation. On August 12 1998, the Commission brought
court proceedings and asked the court to declare that, by not adopting the laws,
regulations and administrative provisions necessary to implement Directive 95/21/EC,
the Italian Republic had failed to fulfil its obligations under that Directive and the EC
Treaty, and to order the Italian Republic to pay the costs. In its defence, the Italian
government argued that the obligations arising under the MOU on port State control
signed in Paris on January 26 1982 and the Resolutions of the IMO relating thereto,
which the Directive in fact embodied, had been complied with in Italy by means of a
series of circulars from the Ministry of the Mercantile Marine and the Ministry of
Transport and Shipping dating from 1977 to 1998. It further stated that the procedure
for adopting the draft Regulation implementing Directive 95/21/EC was an advanced
stage.
It was stated by the court that mere administrative practices, which by their nature are
alterable at will by the administration and are not given the appropriate publicity, cannot
be regarded as constituting the proper fulfilment of obligations under the Treaty. The
circulars referred to by Italian government were considered as falling within this
category and therefore could not be relied upon by the Italian government in its defence.
The defence with regard to the draft Regulations implementing the Directive and the
fact that Directive 95/21 is listed in Sch. D to Law No.128 was not taken into
consideration in this case and would not have been even if they had implemented the
Directive to any degree. The court held that the question whether a member State has
failed to fulfil its obligations must be determined by reference to the situation prevailing
at the end of the period laid down in the reasoned opinion.
On the basis of the above reasons the court concluded that, by not adopting the laws,
Regulations and administrative provisions needed to implement Directive 95/21/EC,
255
7.6
7.7
7.7
THE EU DIRECTIVE ON PORT STATE CONTROL
the Italian Republic had failed to fulfil its obligations under that Directive and under the
EC Treaty. The Italian Republic was ordered to pay costs.11
7C MAIN POINTS OF DIRECTIVE 95/21/EC
7C.1 Purpose
7.8
The purpose of the Directive is to improve safety in Community waters by attempting
to ban substandard shipping from them. Article 1 of the Directive states the purpose of
the Directive as follows:
“The purpose of this Directive is to help drastically to reduce substandard shipping in
the waters under the jurisdiction of Member States by:
— increasing compliance with international and relevant Community legislation
on maritime safety, protection of the marine environment and living and
working conditions on board ships of all flags,
— establishing common criteria for control of ships by the port State and
harmonizing procedures on inspection and detention, taking proper account of
the commitments made by the maritime authorities of the member States under
the Paris Memorandum of Understanding on Port State Control.”
7C.2 Scope
7.9
The Directive applies to any ship and its crew calling at a port of a member State or at
an offshore installation or anchored off such a port or such an installation. Under the
Directive, “ship” has been defined as any seagoing vessel to which one or more of the
Conventions apply, flying a flag other than that of the port State. It extends to cover all
vessels calling at Community ports (or offshore installations), irrespective of their flags
and irrespective of whether the flag States are contracting parties to the Convention
being applied.
In the case of ships below 500 gt, member States shall apply those requirements of a
relevant Convention that are applicable and shall, to the extent that a Convention does
not apply, take such action as may be necessary to ensure that the ships concerned are
not clearly hazardous to safety, health or the environment. In their application of this
action, member States shall be guided by Annex 1 to the Paris MOU.
The rights of intervention available to a member State under the relevant international
conventions are not affected.
Fishing vessels, ships of war, naval auxiliaries, wooden ships of a primitive build,
government ships used for non-commercial purposes and pleasure yachts not engaged
in trade are excluded from the scope of the Directive.
When inspecting a ship flying the flag of a State which is not a party to a Convention,
member States shall ensure that the treatment given to such ship and its crew is no more
favourable than that given to a ship flying the flag of a State which is a party to that
Convention.
11. Case C–315/98, Commission of the European Communities v. Italian Republic.
256
MAIN POINTS OF DIRECTIVE
9 5 / 2 1 /EC
7.12
7C.3 Obligations
Pilots and port authorities are under an obligation to report any deficiencies which
they detect.
There is an obligation on member States to ensure that their competent authorities
co-operate with their counterparts in other member States. Each competent authority is
also under an obligation to publish, once every quarter, details of detentions ordered.
Owners or operators of defective vessels warranting detention are under an obligation
to pay a fee covering the inspection costs.
Member States are under an obligation to supply, every year, details of the number of
surveyors working on their behalf and of the number of ships entering their ports.
7.10
7C.4 Targets of the Directive
Under the Directive, member States are required to inspect at least 25 per cent of
foreign ships entering their ports during a representative calendar year. Selection criteria
are laid down under the Annexes of the Directive for deciding which vessels to inspect.
No further inspections will be carried out on vessels which have been inspected within
the previous six months, provided that:
7.11
— the ship is not listed in Annex I; and
— no deficiencies have been reported, following a previous inspection; and
— no clear grounds exist for carrying out an inspection.
This provision is not applicable in cases of operational controls specifically provided
for in the Conventions.
The Directive has introduced the mandatory targeting of blacklisted flags and of
certain ships potentially more unsafe than others. For high-risk ships, specified in Annex
V of the Directive, it is obligatory to carry out an expanded inspection once a year. These
ships are:
—
—
—
—
oil tankers within five years or less of the date of phasing out;
bulk carriers older than 12 years of age;
passenger ships;
gas and chemical tankers over 10 years old counting from the date of
construction shown on the ship’s safety certificates.
7C.5 Inspection body
An obligation is placed on the member States to establish and maintain national
maritime administrations, “competent authorities”, for the inspection of ships in their
ports or in the waters under their jurisdiction.
Article 12 of the Directive describes the professional profile of the inspector. The
inspectors carrying out port State control and the persons assisting them shall have no
commercial interest either in the port of inspection or in the ships inspected, nor shall the
inspectors be employed by, or undertake work on behalf of, non-governmental
organizations which issue statutory and classification certificates or which carry out the
surveys necessary for the issue of those certificates to ships.
257
7.12
7.13
THE EU DIRECTIVE ON PORT STATE CONTROL
7C.6 Inspection procedure
7.13
The inspection procedure is quite similar to that adopted by Paris MOU inspectors.
An appointed inspector is required to review the certificates held. As a minimum, the
inspector must check the certificates and documents of the relevant vessel and satisfy
himself of its overall condition. The inspector has to make sure that the ship complies
with a number of Conventions regardless of whether the country of registration of the
vessel is a signatory to these Conventions. If there are “clear grounds” for believing that
the conditions of a particular ship are below the standards set by the Conventions, the
inspector may proceed to check on-board operational requirements.
According to Art. 6(3), clear grounds “exist when the inspector finds evidence which
in his professional judgement warrants a more detailed inspection of the ship, its
equipment and its crew”.
A non-exhaustive list of examples of clear grounds is set out in Annex III to the
Directive.12
Annex V identifies certain categories of vessels which are to be subject to an expanded
inspection if the first stage of inspection provides the authority with clear grounds for a
more detailed inspection.13
7C.7 Detention
7.14
If a vessel fails any of the inspection criteria, it may be detained until the safety and/or
environmental threats identified by the PSC inspectors have been remedied and the
inspection costs have been paid or a sufficient guarantee has been provided. If the
contingency justifies it, such as a lack of repair facilities in the port of detention, the ship
may be permitted to proceed to the nearest repair yard. If the ship does not call at the
agreed yard, it will be prohibited further entry to all European ports. Penalties may be
imposed in the event of a refusal to comply with the competent authorities’ requests,
including refusal of access to any port within the Community.
If the ship wants to operate again in Europe, it has to demonstrate fully to the authority
which first detained it, that it has been repaired in compliance with the particular cause
of the detention and in full compliance with all the international Conventions
applicable.
If the ship is inspected and detained, all costs met by the authority in order to inspect
and re-inspect the ship until its release have to be paid by the owner of the ship. As stated
above, if the fees are not paid or a guarantee provided for payment, the ship will not leave
the port.
7C.8 Right of appeal
7.15
The Directive provides for the right of the owner or operator to compensation for any
loss or damage suffered by an unjust detention or delay, and institutes a right of appeal
against detention decisions.14 The burden of proof is on the owner or operator, not on
12. As amended by Directive 98/42/EC.
13. Ibid., Art. 7.
14. Directive 95/21/EC, Art. 9(7), states as follows:
“When exercising port State control under this Directive, all possible efforts shall be made to avoid a ship
being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be
entitled to compensation for any loss or damage suffered. In any incidence of alleged undue detention or
delay the burden of proof shall lie with the owner or operator of the ship.”
258
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.18
the port State control administrator and, in any case, introducing an appeal is not a cause
for suspending the detention.15
7C.9 Publication of detentions
All information concerning vessels which have been detained more than once in a
period of 24 months is to be published every three months. This information will
include, apart from particulars of the vessel, a specific reference to the classification
society (or other organization) which has issued statutory certificates to the detained
vessel on behalf of the flag State. Further, it will include:
— the name of the ship;
— the name of the shipowner or the operator;
— IMO number;
— flag State;
— the classification society, where relevant, and, if applicable, any other party
which has issued certificates to such ship in accordance with the Conventions on
behalf of the flag State;
— the reason for detention; and
— port and date of detention.
7.16
7C.10 Amendment procedure
Article 19 of the Directive provides for an amendment procedure that is clearly
influenced by the tacit acceptance procedure contained in the IMO Conventions. Under
Art. 19, it is provided that certain technical aspects of the Directive, such as the figure of
25 per cent which constitutes the minimum target for inspections, may be amended by
the Regulatory Committee, whenever this is deemed necessary.
7.17
7D AMENDMENTS TO THE PORT STATE CONTROL
D I R E C T I V E16
7D.1 Council Directive 98/25/EC of April 27 1998
After the adoption of Directive 95/21/EC, amendments to certain Conventions have
entered into force. Following these developments, the Port State Control Directive was
amended by Council Directive 98/25/EC of April 27 1998. This Directive provides for
an applicable procedure in the absence of ISM Directives.
The developments which have led to the adoption of Directive 98/25/EC are as
follows:
(i)
amendments to the SOLAS 74 Convention, amendments to the MARPOL
15. Directive 95/21/EC, Art. 10, states as follows:
“The owner or the operator of a ship or its representative in the member State shall have the right of appeal
against the detention decision taken by the competent authority. An appeal shall not cause the detention
to be suspended.”
16. See Appendix D2.
259
7.18
7.18
(ii)
(iii)
(iv)
(v)
(vi)
THE EU DIRECTIVE ON PORT STATE CONTROL
73/78 Convention and amendments to the STCW Convention entering into
force;
the latest developments to the Paris MOU entering into force on January 14
1998;
the entry into force of the ISM Code at international level on July 1 1998 for all
passenger ships and for oil tankers, chemical tankers, gas carriers, bulk carriers
and cargo high-speed craft with a tonnage of 500 gt or more;
the fact that delays in implementing the provisions of the ISM Code at
international level by companies and administrations would create cause for
concern from the point of view of marine safety and protection of the
environment;
the necessity to establish specific EU-wide measures to deal with cases where
no ISM certificates are on board;
that it should be possible to adapt Directive 95/21/EC to take account of
amendments to international Conventions and the Paris MOU by a simplified
procedure.
On the basis of the reasons given above, the procedure applicable in the absence of
ISM certificates has been inserted in Art. 9A of the Directive. The amendment
procedure under Art. 19 has been amended in order to take into account amendments
which have entered into force to the international Conventions and to the Paris MOU,
with the exceptions of protocols to such Conventions.
7.19
7D.1(i) Procedure applicable in the absence of ISM certificates
Where the inspection reveals that the copy of the document of compliance or the
safety management certificate issued in accordance with the ISM Code are missing on
board a vessel to which, within the Community, the ISM Code is applicable at the date
of the inspection, the competent authority shall ensure that the vessel is detained.
However, if the inspection finds no other deficiencies warranting detention, the
competent authority may lift the detention order in order to avoid port congestion.
Whenever such decision is taken, the competent authority shall immediately inform the
competent authorities of the other member States thereof. In such a case member States,
in conformity with Art. 11 of the Directive (follow-up to inspections and detention),
need to take well-coordinated measures to ensure that ships which have been authorized
to leave port without proper ISM certification are refused access to all ports within the
Community until valid certificates have been issued under the ISM Code, without
prejudice to para. 6 of the Article.17 It is only the member State that can lift the refusal of
access to ports within the EU, but if the State so wishes it can accept any information
from another member State as proof that a ship has valid certificates issued in
accordance with the ISM Code.
7D.2 Council Directive 98/42/EC of June 19 1998
7.20
Directive 98/42/EC amends the Annexes of Directive 95/21/EC. It basically deals
with the amendments made to the Conventions, Protocols, Codes and Resolutions of
17. Directive 95/21/EC, Art. 11(6), provides as follows:
“6. Notwithstanding the provisions of paragraph 4, access to a specific port may be permitted by the
relevant authority of that port State in the event of force majeure or overriding safety considerations, or to
260
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.22
the IMO and developments and considerations within the Paris MOU. As with
Directive 98/25/EC, a number of factors have led to the adoption of Directive 98/42/EC
of June 19 1998. The factors are as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
the necessity to take account of amendments that have entered into force to the
various Conventions, Protocols, Codes and Resolutions of the IMO, and
developments and considerations within the Paris MOU;
the target factor (TF) system developed in the framework of the Paris MOU
needed to be incorporated into Directive 95/21/EC;
the list of certificates and documents referred to in Annex II to Directive
95/21/EC had to be modified in order to take into account amendments which
have entered into force to international legislation;
the list of “clear grounds” for a more detailed inspection given in Annex III to
Directive 95/21/EC had to be amended in the light of a more complete list as
given by IMO Resolution A.787(19);
according to Annex IV to Directive 95/21/EC, the procedures and guidelines
for the control of ships to be observed by the inspector are those described in
IMO Resolutions A.466(XII) as amended, A.542(13), MEPC.26(23) and
A.742(18); this Annex needed to be amended in order to take account of the
revocation of those Resolutions by IMO Resolution A.787(19); the procedures
described in Resolution A.787(19) have been incorporated into Annex 1,
“Port State Control Procedures”, to the Paris MOU;
in order to decide whether or not a ship should be detained, the inspector shall
apply the criteria set out in Annex VI of Directive 95/21/EC; however it would
be inappropriate to detain a vessel on the grounds of damage accidentally
suffered, provided certain conditions are met;
Annex VI also had to be amended in the light of the provisions included in IMO
Resolution A.787(19), in particular with regard to the STCW Convention.
Under Directive 98/42/EC, Annexes I, II, III, IV and VI of Directive 95/21/EC are
amended.
In selecting ships for inspection the competent authority shall give overriding priority
to ships referred to in Annex I, Part I. Under Annex I, Part II an overall target factor has
been introduced. The target factor (TF) means the numerical value allocated to an
individual ship in accordance with the provisions of Annex I and displayed on the
Sirenac information system. In determining the order of priority of ships listed in Annex
I, the competent authority shall take into account the order indicated by the overall TF
displayed on the Sirenac information system, according to Annex I, section 1 of the Paris
MOU. By attributing to each ship a TF value calculated on the basis of certain
parameters, such as the flag, the classification society, the age, and previous inspections
and deficiencies found on board, the TF system aims at ensuring that the worst ships are
inspected as a priority and consequently provides an instrument for punishing operators
that persistently ignore safety, environmental and social standards.
Under Annex II the following documents have been added to the list of certificates
and documents to be inspected by the PSC inspector (referred to in Art. 6(1)):
reduce or minimize the risk of pollution or to have deficiencies rectified, provided adequate measures to
the satisfaction of the competent authority of such member State have been implemented by the owner,
the operator or the master of the ship to ensure safe entry.”
261
7.21
7.22
7.22
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
7.23
THE EU DIRECTIVE ON PORT STATE CONTROL
copy of Document of Compliance and Safety Management Certificate issued,
in accordance with the International Management Code for Safe Operation of
Ships and Pollution Prevention (SOLAS, Chapter IX);
document of compliance with the special requirements for ships carrying
dangerous goods;
high-speed craft safety certificate and permit to operate high-speed craft;
dangerous goods special list or manifest, or detailed stowage plan;
ship’s logbook with respect to the records of tests and drills and the log for
records of inspection and maintenance of lifesaving appliances and
arrangements;
special purpose ship safety certificate;
mobile offshore drilling unit safety certificate;
for oil tankers, the record of oil discharge monitoring and control system for the
last ballast voyage;
the muster list, fire control plan and, for passenger ships, a damage control
plan;
shipboard oil pollution emergency plan;
survey report files (in case of bulk carriers and oil tankers);
reports of previous port State control inspections;
for ro-ro passenger ships, information on the A/A maximum ratio;
document of authorization for the carriage of grain;
cargo securing manual.
Under Annex III, examples of clear grounds for a more detailed inspection (as
referred to in Art. 6(3)) were laid out. This Annex has been replaced by the following
criteria:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
ships identified in Annex I, Part I and Part II, paras. II–3, II–4, II–5b, II–5c,
II–8 and II–11;
if the oil record book has not been properly kept;
if, during examination of the certificates and other documentation (see Art.
6(1)(a) and (2)), inaccuracies have been revealed;
indications that crew members are unable to comply with the requirements of
Art. 8 of the Council Directive 94/58/EC of November 22 1994 on the
minimum level of training of seafarers;18
evidence of cargo and other operations not being conducted safely or in
accordance with IMO guidelines, e.g. if the content of oxygen in the inert gas
main supply to the cargo tanks is above the prescribed maximum level;
failure of the master of an oil tanker to produce the record of the oil discharge
monitoring and control system for the last ballast voyage;
absence of an up-to-date muster list, or crew members not aware of their duties
in the event of fire or an order to abandon the ship;
the emission of false distress alerts not followed by proper cancellation
procedures;
the absence of principal equipment or arrangements required by the
Conventions;
excessively unsanitary conditions on board the ship;
18. O.J. L 319, 12.12.1994, p.28.
262
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
(xi)
(xii)
7.25
evidence from the inspector’s general impression and observations that serious
hull or structural deterioration or deficiencies exist that may place at risk the
structural, watertight or weathertight integrity of the ship;
information or evidence that the master or crew is not familiar with essential
shipboard operations relating to the safety of ships or the prevention of
pollution, or that such operations have not been carried out.
The relevant procedures and guidelines for the control of ships were specified in
Annex IV. This Annex has been replaced by the following:
7.24
Annex IV: Procedures For The Control of Ships (as referred to in Art. 6(4))
1.
2.
3.
4.
Principles of safe manning (IMO Resolution A.481 (XII)) and Annexes, which
are contents of the Minimum Safe Manning Document (Annex 1) and
Guidelines for the Application of Principles of Safe Manning (Annex 2).
The provisions of the IMDG Code.
The ILO publication “Inspection of Labour Conditions on Board Ship:
Guidelines for procedures”.
Annex I, “Port State Control Procedures”, to the Paris MOU.
Under Annex VI—Criteria For Detention of a Ship (as referred to in Art. 9(3))—the
following amendments have been made. Within these, some protection has been given
to the owner where the ship is damaged on the way to the port but where the flag and port
States have been notified and remedial work is being carried out.
The amendments are as follows:
“Where the ground for detention is the result of accidental damage suffered on the ship’s voyage to
a port, no detention order shall be issued, provided that:
1. due account has been given to the requirements contained in Regulation 1/11(c) of
SOLAS 74 regarding notification to the flag State administration, the nominated
surveyor or the recognized organization responsible for issuing the relevant
certificate;
2. prior to entering a port, the master or shipowner has submitted to the port State
control authority details on the circumstances of the accident and the damage
suffered and information about the required notification of the flag State
administration;
3. appropriate remedial action, to the satisfaction of the Authority, is being taken by the
ship; and
4. the authority has ensured, having been notified of the completion of the remedial
action, that deficiencies which were clearly hazardous to safety, health or the
environment have been rectified.”
In order to assist the port State control inspector in the use of the guidelines, Annex VI
provides a list of deficiencies grouped under relevant Conventions and/or Codes. These
deficiencies are considered so serious that they may warrant the detention of the ship
involved. It is not intended to be exhaustive. However, with the amendment made under
Directive 98/42/EC it is stated that the detainable deficiencies in the area of STCW 78
listed under item 3.8 are the only grounds for detention under this Convention. These
deficiencies are:
(i)
failure of seafarers to hold a certificate, to have an appropriate certificate, to
have a valid dispensation or to provide documentary proof that an application
for an endorsement has been submitted to the flag State administration;
263
7.25
7.25
(ii)
(iii)
(iv)
(v)
(vi)
7.26
THE EU DIRECTIVE ON PORT STATE CONTROL
failure to comply with the applicable safe manning requirements of the flag
State administration;
failure of navigational or engineering watch arrangements to conform to the
requirements specified for the ship by the flag State administration;
absence in the watch of a person qualified to operate equipment essential to
safe navigation, safety radio communications 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.
The following deficiencies have been added as detainable deficiencies under the
SOLAS Convention:
(i)
(ii)
serious deficiency in operational requirements, as described in section 5.5 of
Annex I to the Paris MOU; and
number, composition or certification of crew not corresponding with the safe
manning document.
7D.3 Commission Directive 99/97/EC of December 13 1999
7.27
The following issues led to the adoption of Commission Directive 99/97/EC:
(i)
(ii)
(iii)
(iv)
(v)
the need to expand the list of information to be published concerning ships
detained in Community ports according to Directive 95/21/EC;
better transparency on the data related to inspections of vessels is a necessary
and important element for the promotion of quality in shipping both within the
Community and worldwide;
that member States should take all necessary measures to remove any legal
obstacle to the publication of the list of ships inspected, detained or being
refused access to any port of the Community, in particular through the
modification, where appropriate, of their national legislation concerning the
protection of data;
the overall targeting factor described in Annex I, Part II, to Directive 95/21/EC
needed to be improved in the light of experience gained in its implementation;
the list of certificates and documents referred to in Annex II to Directive
95/21/EC needed to be modified in order to take into account amendments
which had entered into force to international legislation.
Under Directive 99/97/EC, Art. 15 on publication of detentions was replaced by a
new Art. 15 on release of information. The new Annex VIII provides the necessary
information that needs to be published on detentions and inspections in ports of
member States. With regard to improvement of the overall targeting factor, it was stated
that it is sufficient to consult the Sirenac database to know the value of the TF of a vessel
and it appears, consequently, unnecessary to incorporate this value into Directive
95/21/EC. Therefore Annex I, Part II has been replaced with an overall targeting factor
without TF values.
264
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.29
7D.4 Directive 2001/106/EC of December 19 2001
The most comprehensive amendment to the Directive was prompted by the Erika
incident. This incident focused attention on several weaknesses in the current system of
port State control and made it clear that inspections made by PSC authorities and
classification societies, as well as the oil companies’ private inspection systems, were
insufficient to detect failures in the “safety net” system. Particularly, the Erika incident
made clear that vessels were showing a statistically higher level of risk on account of their
age or the polluting nature of their cargo.
Since the adoption of the port State control Directive, efforts have been made to
improve the uniformity and efficiency of inspection procedures. However, this target has
not been achieved and the following factors have led the Commission to propose
amendments to the Directive:
(i)
(ii)
(iii)
7.28
several member States are still failing to comply with the 25 per cent threshold
laid down in the Directive for inspections of individual ships;
the TF system developed in the framework of the Paris MOU and made
mandatory by the Directive is not being applied in a satisfactory manner;
examination of the reports on the inspections conducted in the application of
the Directive were not always performed with the necessary rigour. Furthermore, it has not been possible from this examination to verify the extent to
which the guidelines in Annex V were followed and what checks were made.
The amendment aims at making inspections mandatory, depending on the targeting
system for identifying ships representing high risks established by the Paris MOU.
Stricter measures have been proposed for older ships. These measures include
mandatory expanded inspections in order to detect possible risks and the refusal of
access to Community ports of old ships having the worst safety records. The proposal
also provides for a wider divulging of information between port States, the Commission
and the general public and an improved monitoring of the application of the Directive.
7D.4(i) Banning manifestly substandard ships from European waters
According to the Commission, if a ship has a history of posing a manifest danger to
maritime safety and the marine environment, it should not continue to sail in
Community waters unless it can be demonstrated that the vessel can be operated safely.
Therefore the Commission proposed banning such ships from European waters; these
vessels should no longer be admitted to Community ports. The amendments made to
the Directive 95/21/EC in response to the Erika accident introduced a procedure for
banning vessels that have been detained repeatedly over the last two or three years and
are on the “blacklist” of flags with an above-average number of detentions. Guidelines
established the procedures applicable in the event of the imposition of an access ban and
the lifting of such a ban.
This new measure concerns ships in the risk categories referred to in the new Annex
XI, Section A of Directive 95/21/EC. Under the new Art. 7b of the Directive, a member
State shall ensure that a ship in one of the following categories:
—
—
gas and chemical tankers;
bulk carriers;
265
7.29
7.29
THE EU DIRECTIVE ON PORT STATE CONTROL
—
—
oil tankers;
passenger ships;
is refused access to its ports if the ship:
—
—
—
—
flies the flag of a State appearing in the blacklist as published in the annual
report of the MOU; and
has been detained more than twice in the course of the preceding 24 months in
a port of a State signatory to the MOU, or
flies the flag of a State described as “very high risk” or “high risk” in the
blacklist as published in the annual report of the MOU; and
has been detained more than once in the course of the preceding 36 months in a
port of a State signatory to the MOU.
The criteria mention in Art. 7b of the Port State Control Directive concerning refusal of
access are based on:
—
—
—
7.30
the category of the vessel: gas and chemical tankers, bulk carriers, oil tankers and
passenger ships;
the flag: vessel flying the flag of a State appearing in the blacklist published by
the Paris MOU;
the number of detentions in the course of the preceding 24 or 36 months.
The refusal of access can be imposed only after the vessel has been released from the last
detention.
Guidelines have been drawn up for the application of the refusal of access measure
under Annex XI. If the conditions for refusal of access are met, the competent authority
of the port in which the ship is detained for the second or third time, as appropriate, must
inform the captain and the owner or the operator of the ship in writing of the access
refusal order served on the ship. The competent authority must also inform the flag State
administration, the classification society concerned, the other member States, the
Commission, the CAAM in St Malo, which houses the computer centre managing the
French maritime information system, and the Paris MOU Secretariat.
The access refusal order will take effect as soon as the ship has been authorized to leave
the port after the deficiencies leading to the detention have been remedied.
In order to have the access refusal order lifted, the owner or operator must address a
formal request to the competent authority of the member State that imposed the access
refusal order. This request must be accompanied by a certificate from the flag State
administration showing that the ship fully conforms to the applicable provisions of the
international Conventions. Where appropriate, this request must also be accompanied
by a certificate from the classification society that has the ship in class showing that the
ship conforms to the class standards stipulated by that society.
The refusal of access may only be lifted following a re-inspection of the ship at an
agreed port by inspectors of the competent authority of the member State that imposed
the access refusal order. The evidence provided has to satisfy this member State that the
vessel fully complies with the applicable requirements of the international Convention.
All the costs of expanded inspection will be borne by the owner or the operator.
If the results of the expanded inspection satisfy the member State, the access refusal
order must be lifted and the owner or operator of the ship must be informed by the
member State in writing. The parties that are informed when an access refusal order is
served must also be informed when this order is lifted.
266
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.32
This measure may be seen as a penalty for “re-offending” shipowners and for flag
States that demonstrate persistent negligence in monitoring the vessels which fly their
flag. In other words, “repeated sinners” will be prevented from entering EU ports.
The Commission will publish the list of banned ships every six months.
FIRST LIST OF SHIPS DEFINITELY BANNED FROM EU PORTS
On December 14 2003, one year after the Prestige incident, the Commission
published the first list of ships definitely banned from EU ports. The Commission has
published the blacklist of ships refused access to EU ports between July 22 and
November 1 2003 in the Official Journal. The Commission is also publishing on its
website an indicative list of ships that may be banned if they are detained in an EU port
again.
Since July 22 2003, when the amendments to the Port State Control Directive
adopted as a part of the “Erika II” package entered into force, ten ships have been
banned from EU ports. Between them they fly the flags of seven different States:
Cambodia (4), Cyprus (1), Honduras (1), Lebanon (1), Panama (1), St Vincent and the
Grenadines (1) and Turkey (1). Most of the ships listed are bulk carriers (seven out of
ten), but there are also two chemical tankers and one oil tanker.
The list of ships that were refused access to Community ports between July 22 and
November 1 2003 under Art. 7b of Directive 95/21/EC is as follows:
Name of ship
IMO number
Type of ship
Age
Flag
Alexander K
7703584
Bulk carrier
25
Lebanon (very high risk)
Belize City
7630141
Bulk carrier
28
Cambodia (very high risk)
Capetan Giorgis I*
7613105
Bulk carrier
26
Cyprus (average risk)
Mamry*
7365954
Chemical tanker
29
Panama (average risk)
Mistral II*
5322415
Oil tanker
46
Honduras (very high risk)
Pursat
5410860
Bulk carrier
40
Cambodia (very high risk)
Selin (ex Maple)
7427142
Chemical tanker
28
St Vincent and the Grenadines
(high risk)
Sohret*
7227009
Bulk carrier
31
Turkey (very high risk)
Star
7392880
Bulk carrier
27
Cambodia (very high risk)
Trinity
7614965
Bulk carrier
26
Cambodia (very high risk)
7.31
Ships for which an access refusal order was subsequently lifted in accordance with the
procedures described in part B of Annex XI to the Directive are marked with an asterisk.
INDICATIVE LIST OF VESSELS WHICH MAY BE BANNED FROM EU PORTS IF THEY
ARE DETAINED ONE MORE TIME
In addition to the list of ships that have been refused access to EU ports in accordance
with the new provisions on port State control, the Commission also identified a list of
vessels that might be banned from EU ports if they were detained one more time. It has
been published for indicative purposes only. The identification of the vessels is based on
information available on Sirenac 2000 considering the new list of blacklisted flags
published by the Paris MOU for 2002.
267
7.32
7.32
THE EU DIRECTIVE ON PORT STATE CONTROL
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Tedi
5116464
Bulk carrier
42
2
Albania (very high
risk)
Setif II
8106020
Bulk carrier
21
2
Algeria (very high
risk)
Amira
9142887
Oil tanker
7
2
Algeria (very high
risk)
Hoggar
7046821
Ro-ro passenger
32
2
Algeria (very high
risk)
Ain Temouchent
8110447
Bulk carrier
21
1
Algeria (very high
risk)
Ain Oussera
8220321
Bulk carrier
20
1
Algeria (very high
risk)
Blida
7705635
Bulk carrier
25
1
Algeria (very high
risk)
Nedroma
7708182
Bulk carrier
25
1
Algeria (very high
risk)
Nemencha
7708194
Bulk carrier
25
1
Algeria (very high
risk)
Sersou
8103822
Bulk carrier
21
1
Algeria (very high
risk)
El Djazair
7116080
Ro-ro passenger
32
1
Algeria (very high
risk)
Zeralda
7043570
Ro-ro passenger
32
1
Algeria (very high
risk)
Gabrielle
6500296
Ro-ro passenger
38
4
Bolivia (very high
risk)
Alkyon
6510253
Ro-ro passenger
38
2
Bolivia (very high
risk)
Europa I
5405542
Ro-ro passenger
40
1
Bolivia (very high
risk)
Sandra
7336642
Chemical tanker
29
1
Bolivia (very high
risk)
Santos C
7214363
Chemical tanker
31
1
Bolivia (very high
risk)
Ald I
6409208
Oil tanker
41
1
Bolivia (very high
risk)
Trinity
7614965
Bulk carrier
26
3
Cambodia (very high
risk)
Banam
6404442
Bulk carrier
40
2
Cambodia (very high
risk)
Belize City
7630141
Bulk carrier
27
2
Cambodia (very high
risk)
Corton
7519024
Bulk carrier
26
2
Cambodia (very high
risk)
Laila Queen
7525865
Bulk carrier
26
2
Cambodia (very high
risk)
268
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.32
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Pursat
5410860
Bulk carrier
40
2
Cambodia (very high
risk)
Star
7392880
Bulk carrier
28
2
Cambodia (very high
risk)
Belmopan
7361568
Bulk carrier
27
1
Cambodia (very high
risk)
Fort George
7630139
Bulk carrier
28
1
Cambodia (very high
risk)
Handy Ocean
7533056
Bulk carrier
26
1
Cambodia (very high
risk)
Legend 1
7223132
Bulk carrier
31
1
Cambodia (very high
risk)
Med Bulker I
7433323
Bulk carrier
25
1
Cambodia (very high
risk)
Med General IV
7108681
Bulk carrier
31
1
Cambodia (very high
risk)
Nicolo Elisa
7341934
Bulk carrier
28
1
Cambodia (very high
risk)
Ronga
7223144
Bulk carrier
31
1
Cambodia (very high
risk)
Cem Trader
7614147
Bulk carrier
28
2
Georgia (very high
risk)
Oruba
7403055
Oil tanker
28
2
Georgia (very high
risk)
Al Khaled
7405481
Bulk carrier
28
1
Georgia (very high
risk)
Iuliana T
7358092
Bulk carrier
29
1
Georgia (very high
risk)
Meltem G
7009988
Bulk carrier
33
1
Georgia (very high
risk)
Agios Dimitrios
7409097
Bulk carrier
28
2
Honduras (very high
risk)
Mistral II
5322415
Oil tanker
46
2
Honduras (very high
risk)
Archon
7012480
Oil tanker
33
1
Honduras (very high
risk)
Blue Sea
7526534
Bulk carrier
26
1
Korean Democratic
Republic (very high
risk)
Alexander K
7703584
Bulk carrier
25
2
Lebanon (very high
risk)
Maria K
7511204
Bulk carrier
27
1
Lebanon (very high
risk)
Frina
7392660
Bulk carrier
30
2
Romania (very high
risk)
Valeria
7512090
Bulk carrier
27
2
Romania (very high
risk)
269
7.32
THE EU DIRECTIVE ON PORT STATE CONTROL
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Histria Topaz
8501189
Bulk carrier
19
1
Romania (very high
risk)
Sabina
7806893
Bulk carrier
25
1
Romania (very high
risk)
Talia S
7806908
Bulk carrier
25
1
Romania (very high
risk)
Tigra
7734674
Bulk carrier
26
1
Romania (very high
risk)
Captain Yamak
7371367
Bulk carrier
29
1
Syrian Arab Republic
(very high risk)
Hasan S
7501857
Bulk carrier
27
1
Syrian Arab Republic
(very high risk)
Mai-S
7501807
Bulk carrier
27
1
Syrian Arab Republic
(very high risk)
Samali S
7501871
Bulk carrier
27
1
Syrian Arab Republic
(very high risk)
Stari Grad
6704397
Oil tanker
36
2
Tonga (very high risk)
Slunj
8943533
Oil tanker
43
1
Tonga (very high risk)
Salih C
7314589
Bulk carrier
30
3
Turkey (very high
risk)
Berrak N
7632541
Bulk carrier
25
2
Turkey (very high
risk)
Gokhan Kiran
7433696
Bulk carrier
18
2
Turkey (very high
risk)
Gulluk
8009557
Bulk carrier
23
2
Turkey (very high
risk)
Hereke 4
7404633
Bulk carrier
27
2
Turkey (very high
risk)
Hilal I
7405819
Bulk carrier
26
2
Turkey (very high
risk)
Odin Bey
7916727
Bulk carrier
24
2
Turkey (very high
risk)
Sapanca
7416777
Bulk carrier
28
2
Turkey (very high
risk)
Sohret
7227009
Bulk carrier
31
2
Turkey (very high
risk)
Golden S
7000243
Chemical tanker
33
2
Turkey (very high
risk)
Metin Kalkavan
7383592
Chemical tanker
29
2
Turkey (very high
risk)
Alemdar 1
8836983
Oil tanker
13
2
Turkey (very high
risk)
Alfa Star
8312629
Bulk carrier
20
1
Turkey (very high
risk)
Barbaros Kiran
7433684
Bulk carrier
21
1
Turkey (very high
risk)
270
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Bolkar
8014382
Bulk carrier
22
1
Turkey (very high
risk)
Bolu
7389833
Bulk carrier
20
1
Turkey (very high
risk)
Burdur
7389845
Bulk carrier
21
1
Turkey (very high
risk)
C Filyos
8811792
Bulk carrier
13
1
Turkey (very high
risk)
Duden
8005226
Bulk carrier
22
1
Turkey (very high
risk)
Erkan Mete
7527461
Bulk carrier
27
1
Turkey (very high
risk)
Gokcan
8124802
Bulk carrier
19
1
Turkey (very high
risk)
Gulser Ana
8418289
Bulk carrier
18
1
Turkey (very high
risk)
Haci Resit Kalkavan
7640316
Bulk carrier
25
1
Turkey (very high
risk)
Hakki Deval
7433347
Bulk carrier
24
1
Turkey (very high
risk)
Kaptan Nevzat Kacar
8325896
Bulk carrier
19
1
Turkey (very high
risk)
Kiran Pacific
7713149
Bulk carrier
17
1
Turkey (very high
risk)
Manyas 1
7533094
Bulk carrier
27
1
Turkey (very high
risk)
Muzeyyen Ana
8109034
Bulk carrier
18
1
Turkey (very high
risk)
Osman Mete
7380485
Bulk carrier
28
1
Turkey (very high
risk)
Tahir Kiran
7433713
Bulk carrier
16
1
Turkey (very high
risk)
Serra Deval
7433426
Bulk carrier
23
1
Turkey (very high
risk)
Soli
7600079
Bulk carrier
26
1
Turkey (very high
risk)
Zeynep Ana
7531242
Bulk carrier
26
1
Turkey (very high
risk)
Esin S
7024354
Chemical tanker
33
1
Turkey (very high
risk)
Habas
8208426
Gas carrier
19
1
Turkey (very high
risk)
Emre Bener
7401514
Oil tanker
27
1
Turkey (very high
risk)
Kaptan Veysel
7721847
Oil tanker
25
1
Turkey (very high
risk)
271
7.32
7.32
THE EU DIRECTIVE ON PORT STATE CONTROL
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Veli Alemdar
7326166
Oil tanker
29
1
Turkey (very high
risk)
Ankara
7615672
Ro-ro passenger
22
1
Turkey (very high
risk)
Derin Deniz
6905446
Ro-ro passenger
35
1
Turkey (very high
risk)
Kaptan Burhanettin
Isim
8818300
Ro-ro passenger
13
1
Turkey (very high
risk)
Arrazi
7925704
Chemical tanker
21
1
Morocco (high risk)
Al Wahda
9044073
Oil tanker
11
1
Morocco (high risk)
Johanna Kathrina
7368293
Chemical tanker
29
2
St Vincent and the
Grenadines (high
risk)
Elena B
7721330
Bulk carrier
25
1
St Vincent and the
Grenadines (high
risk)
Cora
7395234
Bulk carrier
26
1
St Vincent and the
Grenadines (high
risk)
Fivos
7625720
Bulk carrier
25
1
St Vincent and the
Grenadines (high
risk)
J Safe
8118803
Bulk carrier
21
1
St Vincent and the
Grenadines (high
risk)
Koro
7029421
Bulk carrier
33
1
St Vincent and the
Grenadines (high
risk)
Lepetane
8126367
Bulk carrier
19
1
St Vincent and the
Grenadines (high
risk)
Nestor C
7739985
Bulk carrier
24
1
St Vincent and the
Grenadines (high
risk)
Pakrac
7601633
Bulk carrier
25
1
St Vincent and the
Grenadines (high
risk)
Sea Bright
7641073
Bulk carrier
26
1
St Vincent and the
Grenadines (high
risk)
Titan
8117146
Bulk carrier
20
1
St Vincent and the
Grenadines (high
risk)
Giovanna
7434145
Chemical tanker
25
1
St Vincent and the
Grenadines (high
risk)
Rhone
7361685
Chemical tanker
29
1
St Vincent and the
Grenadines (high
risk)
272
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.32
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Tavira
7716115
Oil tanker
25
1
St Vincent and the
Grenadines (high
risk)
Fedra
7350088
Ro-ro passenger
30
1
St Vincent and the
Grenadines (high
risk)
Paloma I
7625794
Ro-ro passenger
23
1
St Vincent and the
Grenadines (high
risk)
Superferry
7210305
Ro-ro passenger
31
1
St Vincent and the
Grenadines (high
risk)
Bulgaria
7740831
Bulk carrier
25
2
Bulgaria (medium
risk)
Capetan Giorgis I
7613105
Bulk carrier
26
3
Cyprus (medium risk)
Apollonia Star
7531187
Bulk carrier
27
2
Cyprus (medium risk)
Bulk Diamond
8822818
Bulk carrier
17
2
Cyprus (medium risk)
Konstantinos
7632448
Bulk carrier
26
2
Cyprus (medium risk)
Mighty Confidence
9052721
Bulk carrier
8
2
Cyprus (medium risk)
Princess Ilaria
7720714
Bulk carrier
25
2
Cyprus (medium risk)
Tamyra
8008761
Oil tanker
20
2
Cyprus (medium risk)
Gina M
7353092
Bulk carrier
28
2
Malta (medium risk)
Seeder Stream
8113140
Bulk carrier
19
2
Malta (medium risk)
Tiarella
7526170
Bulk carrier
26
2
Malta (medium risk)
Kalymnos
7901590
Oil tanker
20
2
Malta (medium risk)
Grain Trader
7636781
Bulk carrier
24
4*
Panama (medium
risk)
Costanza
7624415
Bulk carrier
23
2
Panama (medium
risk)
Irene Ve
7514244
Bulk carrier
25
2
Panama (medium
risk)
Ocean Surf
80006270
Bulk carrier
22
2
Panama (medium
risk)
Pandora P
8100870
Bulk carrier
20
2
Panama (medium
risk)
Rodin
7334046
Bulk carrier
29
2
Panama (medium
risk)
Tradco I
7501338
Bulk carrier
27
2
Panama (medium
risk)
Sark Trader
8011550
Chemical tanker
22
2
Panama (medium
risk)
Sadalsuud
7123992
Oil tanker
22
2
Panama (medium
risk)
Dolfijn II
5404586
Passenger ship
40
2
Panama (medium
risk)
273
7.32
THE EU DIRECTIVE ON PORT STATE CONTROL
Name of vessel
IMO number
Type of vessel
Age
Detentions
Flag
Golfinho Azul
6922341
Ro-ro passenger
34
2
Panama (medium
risk)
Olympic Pride
8009131
Oil tanker
21
2
Panama (medium
risk)
Detentions considered from January 22 2002 to November 1 2003
* Vessel apparently detained four times without having been banned; case under investigation by EMSA.
7.33
7D.4(ii) Obligation to inspect ships posing a high risk to maritime safety and the
marine environment
The present form of Directive 95/21/EC does not stipulate an obligation to inspect a
ship. The decision to inspect a ship is always initially based on a prior selection made by a
port State control inspector on the basis of his professional judgement, whatever the
potential hazard posed by a ship.
The TF introduced by Directive 98/42/EC has been considered as an important step
towards harmonizing the selection criteria. However, the Commission considered that
the inspector’s margin of discretion in selecting the ships to be inspected should in
certain cases be considerably reduced in the interests of achieving truly uniform and
efficient practices. Therefore, with the amendment, inspection becomes obligatory in
the following cases:
(i)
(ii)
7.34
If the TF exceeds a certain limit: The targeting system established by the
Directive and the Paris MOU is not working completely satisfactorily. Ships
with the highest TF are not in practice systematically assigned the highest
priority. Therefore under Art. 5, Inspection commitments, a specific obligation is brought to inspect systematically any ships whose TF exceeds 50,
according to the procedure laid down in the Paris MOU, each time they call at
a port of the Community, provided that at least one month has elapsed since
the last inspection carried out in a port in the Paris MOU region.19
If the ships concerned are classed in a category justifying expanded inspection: It is
believed that the provisions of the Directive relating to the expanded
inspection regime for “high risk” ships gives inspectors too wide a margin of
discretion to decide which ships to inspect and what is to be included in the
inspection. Recent events have shown that the structural defects affecting
certain types of ships and oil tankers in particular may lead to accidents with
dramatic consequences for the environment. It has been stated by the
Commission that without questioning the basic responsibility of the classification societies to detect such faults, it is important that the port State
authorities equip themselves with the means to assess the satisfactory
structural condition of a ship (particularly as regards corrosion of the tanks).
Therefore, the expanded inspection regime for ships referred to in Art. 7 and Annex V
to the Directive has been changed as follows:
19. According to the estimates made in the context of the Paris MOU based on the number of ships
inspected in 1999, the percentage of ships affected is likely to be less than 2.5 per cent of the vessels recorded in
the Sirenac database.
274
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
(i)
7.34
Article 7 is amended to establish a clear obligation to inspect the following
ships:
— gas and chemical tankers older than 10 years of age, as determined on the
basis of the date of construction indicated in the ship’s safety certificates;
— bulk carriers older than 12 years of age, as determined on the basis of the
date of construction indicated in the ship’s safety certificates;
— oil tankers with a gross tonnage of more than 3,000 gt and older than 15
years of age, as determined on the basis of the date of construction
indicated in the ship’s safety certificates;
— passenger ships older than 15 years of age other than passenger ships
referred to in Art. 2(a) and (b) of Council Directive 1999/35/EC of April 29
1999 on a system of mandatory surveys for the safe operation of regular
ro-ro ferry and high speed passenger craft services.20
Whenever one of the above-mentioned ships calls at a port of the Community after a
period of 12 months, it must without exemption be subjected to an expanded inspection.
(ii) Annex V, section C contained non-mandatory guidelines for expanded
inspection. With the amendments, these optional guidelines are made
mandatory. The inspection must at least cover the general or specific checks
for the categories of ships concerned. If they are not practically feasible (e.g.
inspection of the tanks on a loaded oil tanker) or if they are likely to create
particular hazards (e.g. explosion) for the ship, its crew or the port, it is
permissible not to carry out certain checks.
(iii) Under item 2 of the current Annex V, section B, with regard to oil tankers,
structural matters are addressed in the form of a check of the survey report.
According to the Commission, it is essential that the structural inspection
should encompass more than a check of the documents on board and be based
on a direct, visual examination by the inspector of the structural condition of
the ship. However, cargo tanks are not normally accessible during a port call;
therefore the inspector must carry out a visual examination of at least one of the
ballast tanks in order to gain a general impression of its possible degree of
corrosion. If the ship does not have segregated ballast tanks, the inspector
should attempt to carry out such an assessment on the basis of any tank or
empty space normally accessible.
(iv) Under the new section B of Annex V, an advance notification obligation is
introduced to facilitate the subsequent conduct of the inspection once the ship
enters port. In principle, an expanded inspection must be prepared in advance.
The shipowner or ship’s master will be obliged to communicate the following
operational information directly to the inspector 48 hours before arrival at the
port or from the port of departure:
(a) name;
(b) flag;
(c) IMO identification number, if any;
(d) deadweight tonnage;
(e) date of construction of the ship;
(f) for tankers:
20. O.J. L 138, 1.6.1999, p.1.
275
7.34
(g)
(h)
(i)
(j)
(v)
7.35
7.36
THE EU DIRECTIVE ON PORT STATE CONTROL
(i) configuration (single hull, single hull with segregated ballast tanks,
double hull);
(ii) condition of the cargo and ballast tanks (full, empty, inerted);
(iii) volume and nature of the cargo;
probable time of arrival at the port of destination or pilot station, as required by
the competent authority;
planned duration of the call;
planned operations at the port of destination (loading, unloading, other);
date and place of the last inspection carried out in the framework of port State
control.
Specifically with regard to oil tankers, the age from which expanded
inspections have to be carried out will be reduced to 15 years. At present this
age limit is 20 to 25 years, depending on the type of tanker, in accordance with
the progressive phase-out dates laid down in reg. 13 G of Annex I of the
MARPOL Convention. The vessels concerned are single hull tankers, whether
or not they have segregated ballast tanks.
7D.4(iii) Follow-up on the result of inspections
The Commission believes that the follow-up of inspections between ports is not ideal.
It is also extremely difficult to ascertain, from the information in the Sirenac system,
which parts of the ship inspected were checked in the previous port or ports. Therefore,
there is a risk that the inspection authority in a given port will inspect again the parts of
the ship that have already been checked in the previous port. The Commission aims to
avoid the possibility of such duplications and to optimize the overall cost-effectiveness
ratio of the port State control system. Consequently, with the amendment, in the case of
more detailed or expanded inspection, it has become obligatory to state which parts of
the ship have been inspected in the inspection report.21 This will prevent the inspector in
the next port of call carrying out the same inspection.
7D.4(iv) Informing the flag State and the classification societies
Under the present form of Directive 95/21/EC, the flag State and the classification
societies are informed only of the detention of a ship by the port State inspection
authorities. It was believed that information on completion of each inspection would be
extremely useful in permitting more efficient monitoring of the evolution and possible
deterioration of the condition of a ship by the administration of the flag State, or by the
classification society acting on its behalf. Therefore, the Commission proposed
amending Art. 9 of the Directive to stipulate the transmission of a copy of the inspection
report to the flag State and to the classification society concerned.22 More transparency
21. The inspection report is kept on board and must be examined by the inspector of the next inspecting
port. Article 8 of the Council Directive 95/21/EC is replaced by the following text:
“Report of inspection to the master
8. On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector
shall draw up a report in accordance with Annex IX. A copy of the inspection report shall be provided to
the ship’s master.”
22. Article 9(5) of the Council Directive 95/21/EC is replaced by the following text:
“9.5. In the event that the inspections referred to in Article 5(2) and Article 7 give rise to detention, the
competent authority shall immediately inform, in writing, and including the report of inspection, the
administration of the State whose flag the ship is entitled to fly (hereinafter called ‘flag administration’) or
276
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.39
and information exchange is imposed on, and between, port State inspectors,
classification societies and flag States through mandatory information exchange. With
the amendment, the flag State and the classification society will be informed of the
results of the inspections. Having access to this information will enable them to
intervene more rapidly in the event of a vessel’s condition deteriorating. Inspectors will
also have extra information on the vessels they inspect through compulsory consultation
of the Equasis database on vessel condition.
7D.4(v) Verification of the financial guarantee covering pollution risk
Oil tankers can cause considerable damage in the event of an oil spill; therefore, as the
Erika incident has shown, appropriate cover of these risks is extremely important. Under
the 1969 CLC and the 1992 Protocol thereto, it has been stated that the owner of a ship
registered in a State party to the Convention and carrying more than 2,000 tonnes of oil
in bulk must take out an insurance or other financial guarantee to cover its liability for
pollution damage. These documents23 have been added to the list of certificates in
Annex II to the Directive to be verified by inspectors. The absence of these documents
should be taken as justifying a more detailed inspection of the ship, and constitutes a
ground for detention.
7D.4(vi) Transparency of information on the ships inspected or detained in
accordance with the Directive
Article 15 of the Directive deals with publication of certain information on the ships
detained in the ports of the Community. The aim of this publication is to punish
operators who bear part of the responsibility for failure to comply with safety standards
and to give those who take decisions (charterers, insurers, etc.) and the European public
a fuller and more user-friendly picture of the inspections carried out in Community
ports.
It is stated by the Commission that additional information on more detailed
inspections should be made available both by the port State authorities (expanded
inspections within the meaning of Art. 7) and by the classification societies (special
surveys). There is also a need for information to be made available regarding the
follow-up by the port State authorities or the classification societies to a detention
ordered under the Directive.
With the amendment, the following information will be published related to
detentions and inspections in ports of member States:
“I. Information published in accordance with Art. 15(1) must include the following:
—
—
—
—
name of the ship;
IMO number;
type of ship;
tonnage;
when this is not possible the Consul or, in his absence, the nearest diplomatic representative of the State,
of all the circumstances in which the intervention was deemed necessary. In addition, nominated surveyors or recognized organizations responsible for the issue of class certificates or certificates issued on behalf
of the flag State in accordance with the international conventions shall also be notified where relevant.”
23. Certificates of Insurance or any other Financial Security in respect of Civil Liability for Oil Pollution
damage (CLC 1992).
277
7.37
7.38
7.39
7.39
THE EU DIRECTIVE ON PORT STATE CONTROL
— year of construction as determined on the basis of the date indicated in the ship’s
certificates;
— name and address of the shipowner and the operator of the ship;
— in the case of ships carrying liquid or solid cargoes in bulk, the name and address
of the charterer and the type of charter;
— flag State;
— the classification society or classification societies, where relevant, which
has/have issued to this ship class certificates, if any;
— the classification society or classification societies and/or any other party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating the certificates delivered;
— port and date of the last expanded inspection stating, where appropriate,
whether a detention was ordered;
— port and date of the last special survey and the name of the organization which
carried out the survey;
— number of detentions during the previous 24 months;
— country and port of detention;
— date when the detention was lifted;
— duration of detention, in days;
— number of deficiencies found and the reasons for detention, in clear and explicit
terms;
— description of the measures taken by the competent authority and, where
relevant, by the classification society as a follow-up to detention;
— if the ship has been refused access to any port within the Community, the
reasons for such measure in clear and explicit terms;
— indication, where relevant, of whether the classification society or any other
private body carried out the survey has a responsibility in relation to the
deficiencies which, alone or in combination, led to detention;
— description of the measures taken in the case of a ship which has been allowed to
proceed to the nearest appropriate yard, or which has been refused access to a
Community port.
II. Information concerning ships inspected made public in accordance with Art. 15(2)
must include the following:
—
—
—
—
—
—
—
name of the ship;
IMO number;
type of ship;
tonnage;
year of construction;
name and address of shipowner or operator of the ship;
in the case of ships carrying liquid or solid cargoes in bulk, the name and the
address of the charterer and the type of the charter;
— flag State;
— the classification society or classification societies which has/have issued to this
ship class certificates, if any;
— the classification society or classification societies and/or any other party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating the certificates delivered;
278
AMENDMENTS TO THE PORT STATE CONTROL DIRECTIVE
7.41
— country, port and date of inspection;
— number of deficiencies, by category of deficiency.
7D.4(vii) Monitoring application of the Directive and assessing the performance
of Member States
Under Art. 17 of the Directive, Data to monitor implementation, member States are
required to provide certain information on the number of inspectors allocated to port
State control and the number of individual ships entering their ports in a representative
calendar year.
With this information, the Commission verifies compliance with the 25 per cent
threshold for inspections laid down in Art. 5(1). However, it has been stated that the
information provided is not enough for the Commission to carry out a detailed
examination of the proper application of the Directive’s provisions, which is a duty
under the Treaty, or to initiate, where necessary, infringement proceedings against
defaulting member States. Therefore, it is not possible to detect lax practices in certain
Community ports, and the risk of varying safety standards and distortion of competition
between ports persists.
On the basis of these reasons, the Commission proposed increasing the frequency for
transmission of these data (annually rather than every three years as at present) and
adding new items to the list of information to be transmitted to the Commission. A new
Annex to the Directive has been added, requiring member States to provide detailed
information to the Commission on the movements of ships in ports, classified according
to various criteria (age, flag, size, etc.).
Under the new Annex X, member States must either:
7.40
— provide the Commission every six months with a list of movements of individual
ships, other than regular ferry services, that entered their ports, containing the
IMO number of the ships and the date of arrival; or alternatively
— provide to Sirenac the IMO numbers and the date of arrival of ships, other than
regular ferry services, that daily entered their ports.
Member States must provide the Commission with the list of regular ferry services not
later than six months following the implementation of the Directive, and thereafter each
time changes take place in such services.
7D.4(viii) International and community requirements concerning VDR systems
Essential technological progress has been made in the field of on-board equipment
that enables voyage data to be recorded by means of VDR systems or “black boxes” in
order to facilitate post-accident investigations. In view of the importance of such
equipment in the prevention of accidents at sea, it should be made obligatory for vessels
operating domestic and international services within Community waters to be fitted
with such equipment. It is therefore appropriate that lack of a required VDR on board is
a serious deficiency to merit the detention of the ship. A new Annex, Annex XII, has also
been added to the Directive to describe the types of vessels which must be fitted with a
VDR system meeting the performance standards of IMO Resolution A.861(20) and the
testing standards set by Standard No.61996 of the IEC.
279
7.41
7.41
THE EU DIRECTIVE ON PORT STATE CONTROL
In order to avoid detention, after 2007/2008 (or, in the case of new ships, from July
2002), all vessels calling at European ports must carry a VDR.
7.42
7D.4(ix) Inspection body
Under Art. 4, member States are required to maintain an appropriate national
maritime administration with the requisite number of staff, in particular qualified
inspectors for the inspection of ships, and to take whatever measures are appropriate to
ensure that their competent authorities perform their duties as laid down in the
Directive. These national maritime administrations are to be called “competent
authorities”.
7D.5 Directive 2002/84/EC of November 5 2002
7.43
The Directives on maritime safety and the prevention of pollution from ships lay down
the minimum requirements that member States will have to impose on masters or
operators of vessels bound for or leaving a Community port and carrying dangerous or
polluting goods in bulk or in packaged form. The Directives in force in the field of
maritime safety make reference to the committee set up by Council Directive 93/75/EC
on minimum requirements for vessels bound for or leaving Community ports and
carrying dangerous or polluting goods, and, in certain cases, to an ad hoc committee set
up by the pertinent Directive.
EC Regulation 2099/2002 of November 5 2002, establishing a Committee on Safe
Seas and the Prevention of Pollution from Ships (COSS), centralizes the tasks of the
committees established under the pertinent Community legislation on maritime safety,
the prevention of pollution from ships and the protection of shipboard living and
working conditions. Therefore, certain Directives in the field of maritime safety,
including those on port State control, should be amended in order to replace references
the existing committees with COSS. These Directives should also be amended in order
to apply to them the amendment procedures laid down by Regulation 2099/2002 and
the relevant provisions of that Regulation designed to facilitate their adaptation to take
account of changes to the international instruments referred to in Community
legislation on the field of maritime safety.
With Directive 2002/84/EC, the Port State Control Directive has been amended as
follows:
— The date reference given for Paris MOU has been changed to read “in its
up-to-date version”.
— Assistance to the Commission will be provided by COSS.
— The list of international Conventions that are relevant for the purposes of the
Port State Control Directive is included in the amendment procedure.
However, the amendments to these instruments may be excluded under the
procedure according to Art. 5 of Regulation 2099/2002.
280
CHAPTER 8
Equasis1
8A INTRODUCTION
One of the main consequences of the Erika incident was the establishment of a new
international database, Equasis, to achieve “greater transparency and timeliness of data
in the maritime industry”. Although Equasis was launched on May 23 2000, it started
three years before. In November 1997, the Quality Shipping Campaign was initiated by
the European Commission and the UK government. The aim of the campaign was to
engage those involved in maritime transport in an effort to improve maritime safety. It
was based upon a dialogue between all parties and public authorities. The tools of the
campaign were primarily voluntary measures. This campaign clearly highlighted the fact
that the lack of transparency of information relating to the quality of ships and their
operators was impeding the emergence of a genuine quality culture in shipping. Despite
the collection of much relevant information, it was scattered and often difficult to access.
Therefore, one of the main conclusions of the Quality of Shipping Conference in Lisbon
in June 1998 was a unanimous call from all the participants, representing the whole
range of the industry (including shipowners, cargo owners, insurers, brokers, classification societies, agents ports and terminals) to make such information more accessible.
Recognizing this fact, the European Commission and the French Maritime Administration decided to co-operate in the development of a data system to collect existing
safety-related information on ships from both public and private sources and make it
available on the internet. On May 17 2000, the text founding Equasis, the “Memorandum of Understanding on the Equasis Information System”, was signed at the IMO
by seven maritime administrations: Japan, Singapore, Spain, the US Coast Guard, the
UK, France and the European Commission. The IMO appointed the director of the
maritime safety division to follow Equasis’s work.
The main principles taken into account in the setting-up of Equasis are stated as
follows on its website:
“Equasis should be a tool aiming at reducing substandard shipping, and it should be limited to
safety related information on ships.
Equasis has no commercial purpose; it addresses a public concern and should act accordingly.
Equasis should be an international database covering the whole world fleet.
Active cooperation with all players involved in the maritime industry is needed.
Equasis will be a tool used for a better selection of ships, but it will be used on a voluntary basis;
there will be no legal pressure for industry to use Equasis.”
1. The information provided in this chapter can be found on Equasis website: http://www.equasis.org.
281
8.1
8.2
8.3
EQUASIS
8B ORGANIZATION
8.3
The MOU founding the Equasis information system sets up a three-tier organization.
The Supervisory Committee consists of the parties to the Equasis MOU. As the main
international regulator, the IMO participates in this Committee. The Committee
supervises the management of Equasis and decides on policy matters related to the
operation and future development of the system.
The consultative body is referred to as the Editorial Board. All data providers, such as
maritime administrations, classification societies, insurers’ organizations, shipowners’
organizations, commercial data providers, etc., are represented in this body. The
Editorial Board advises the management unit on all aspects related to the best possible
presentation of the available data, including aspects of quality control and updating.
The daily operation of Equasis, including financial and marketing aspects, is
performed by the Management Unit. This unit has the capacity to conclude agreements
on behalf of Equasis with data providers, users, consultants and providers of IT services,
staff, etc. It also acts as secretariat of the Committee.
The director is appointed by the Supervisory Committee and leads the Management
Unit. A technical unit is in charge of the technical operation and maintenance of the
system. The functions of the technical unit are performed by the Centre Administratif
des Affaires Maritimes (CAAM) in St Malo.
8 C C O N T E N T2
8.4
Equasis does not produce new information on ships. Its aim is to collect information
from existing sites or information systems; its data are already accessible on the internet.
But by presenting existing information and making it accessible in one single platform,
Equasis aims to provide a comprehensive picture of safety-related matters for each
individual ship. However, the system does not provide or propose a rating of, or make a
judgement about, ships. It is up to the users to form their own judgements depending on
experience, professional judgement, etc.
The Equasis website is divided into two main parts. General information about
Equasis—background, organization, funding, etc.—are provided in the information
module. The ship search module provides data on ships. It displays information on a
ship’s basic characteristics, management and history. Management information on a
specific ship includes a list of all ships operated by the same manager, and allows the user
to access other ships in the same way he accessed the first ship.
Equasis has been designed to answer two types of question. The first type is directed at
those who intend to do business with a specific ship: what information is available on that
ship to help them to make the right decision? The second question is directed at PSCOs
who are ready to perform an inspection: which ships calling presently in their harbours
will they choose for inspection as a matter of priority, in order to optimize their limited
means?
Only factual data related to the safety of ships are displayed. If data are missing the
corresponding item is completely withdrawn from the page. The frequency of updating
2. Marchand, P., (Director, Equasis), “Equasis and Quality Shipping Initiative: Examining the real impact
on shipping”, Port State Control: Managing Safety and Quality in Shipping Conference, July 10–11 2000,
London.
282
LIST OF DATA DISPLAYED ON EQUASIS
8.5
the data varies on a case-by-case basis, depending on the technical capacity of each
provider. The validity of data can be assessed by checking the recording date of the data
that appears on the pages. The provider of each item of data is indicated, as well as the
date of the data. By clicking on any heading of the pages related to a ship, it is possible to
access a short description of the context from which the data were elaborated and some
explanation about its meaning. In principle, this information is supplied by the data
provider. Such information should enable the user to make an assessment of the value he
attaches to each piece of data according to his own experience and professional
judgement.
Decisions based on information contained in Equasis are the sole responsibility of the
user.
8D LIST OF DATA DISPLAYED ON EQUASIS
Following the amendment of Directive 95/21/EC on port State control3 by Directive
2001/106/EC, there have been two major changes with regard to Equasis:4
— Paris MOU PSC officers are under an obligation to consult Equasis before
going on board a ship;
— new data has to be supplied to Equasis.
3. Articles 14 and 15 of Directive 95/21/EC (as amended by Directive 2001/106/EC) read as follows:
“14. Cooperation
1.
2.
3.
Each Member State shall make provision for cooperation between its competent authority, its
port authorities and other relevant authorities or commercial organizations to ensure that its
competent authority can obtain all relevant information on ships calling at its ports.
Member States shall maintain provisions for the exchange of information and cooperation
between their competent authority and the competent authorities of all other Member States and
maintain the established operational link between their competent authority, the Commission
and the Sirenac information system set up in St Malo, France.
For the purposes of carrying out the inspections referred to in Articles 5(2) and 7, inspectors
shall consult the public and private databases relating to ship inspection accessible through the
Equasis information system.
The information referred to in paragraph 2 shall be that specified in Annex 4 to the MOU, and
that required to comply with Article 15 of this Directive.
15. Release of information
1.
The competent authority of each Member State shall take necessary measures in order to ensure
that information listed in Annex VIII, Part I, concerning ships which have been detained in, or
which are subject to refusal of access to, a port of this Member State during the previous month, is
published at least every month.
2. The information listed in Annex VIII, Parts I and II, and the information on changes,
suspensions, and withdrawals of class referred to in Article 15(3) of Directive 94/57/EC shall be
made available in the Sirenac system. It shall be made public through the Equasis information
system, as soon as possible after the inspection has been completed or the detention has been
lifted.
3. Member States and the Commission shall cooperate in order to establish the appropriate
technical arrangements referred to in paragraph 2.
4. Where appropriate, the Sirenac information system is amended in order to implement the
above-mentioned requirements.
5. The provisions of this Article do not affect national legislation on liability.”
4. Bergonzo, A., (deputy director, Equasis), “Equasis Update”, Port State Control: Understanding current
developments in port State control, including the impact of implementation of the ISPS Code in 2004,
conference, September 29–30, London.
283
8.5
8.5
EQUASIS
Under the new arrangement, the information listed in Annex VIII of Directive
95/21/EC has to be recorded in Sirenac and then passed on to Equasis “as soon as
possible” after completion of the inspection report or after the lifting of the detention.
When information is needed about a ship, the hyperlink from the Sirenac database can
be used by a PSCO in order to get the information from the Equasis database.
Under Art. 15 of Directive 95/21/EC, three types of information have to be made
available in Equasis:
(i)
(ii)
(iii)
charterer data;
class information;
port State control data.
8D.1 Charterer data
8.6
This information has to be supplied only for liquid and bulk cargoes. The name and
address of the charterer is required.
With regard to charterer data, a couple of practical problems were pointed out by the
Equasis deputy director during the Port State Control Conference in 2003.5 The first
problem is related to the format in which the information is provided for Sirenac and
then transmitted to Equasis. There is no codification system for charterers; therefore the
name and address of the charterer have to be inserted manually, in free text, which opens
up the possibility of typographical mistakes. The type of charterer can be coded,
however. Secondly, the information will reflect only the situation at the date when the
PSCO was on board. If the details of the charterer change after the inspection the
charterer details will no longer be relevant. Therefore the information will show only the
situation at the time of the relevant inspection.
8D.2 Class-related information
8.7
Under this section there are three issues relating to the information that has to be
handled by Equasis.
(i)
(ii)
(iii)
Data on the classification society surveying the ship and the status of the class
(i.e. whether it has been delivered, suspended, withdrawn, reinstated or
reassigned) are currently received from the International Association of
Classification Societies (IACS) or LRF; therefore this does not need further
work.
Some technical study has to be done with regard to the class information that
Equasis expects from Sirenac. For data about the classification society that has
issued statutory certificates, and the list of statutory certificates delivered by
the classification society, Equasis has to put in place hyperlinks to all IACS
member society websites.
Certain pieces of class information that are required by the Directive may not
be recorded by Sirenac. These are: overdue recommendations of class (by a
combination of Directive 95/21/EC, Art. 15.2 and Directive 94/57, Art, 15/3);
port and date of the last special survey; and measures taken by the classification
society as a follow-up to detention.
5. Ibid.
284
LIST OF DATA DISPLAYED ON EQUASIS
8.9
8D.3 Port State control data
According to the Directive, the type of inspection carried out has to be indicated on
Equasis. Equasis has also to provide information relating to the assessment of class
responsibility for deficiencies in the inspection report.
In detention cases, the following details must be provided:
8.8
— while assessing deficiencies in order to make a decision about detention,
whether the classification society’s responsibility has been taken into account or
not;
— type of actions taken by the maritime authorities as a follow-up to detention.
As stated by Albert Bergonzo, the deputy director of Equasis, the problem with
consistency of data is a long-standing one. Equasis displays information as updated by
LRF and the IACS, but the information received from MOUs is relevant at the time of
the inspection. With regard to information on sensitive issues, changes such as
corrections of errors, and notes of reversals of decisions that may occur following
detentions, must be followed closely. Presently, all changes that take place less than
three years after the inspection should be modified in Equasis a week later; however, the
process is not infallible.
8D.4 Publication of information related to detentions and inspections in
ports of member States6 as referred to in Art. 15
I.
Information published in accordance with Art. 15(1) must include the
following:
— name of the ship;
— IMO number;
— type of ship;
— tonnage;
— year of construction as determined on the basis of the date indicated in the
ship’s safety certificates;
— name and address of the shipowner or operator of the ship;
— in the case of ships carrying liquid or solid cargoes in bulk, the name and
address of the charterer responsible for the selection of the vessel and the
type of charter;
— flag State;
— the classification society or classification societies, where relevant, which
has/have issued to this ship class certificates, if any;
— the classification society or classification societies and/or any party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating the certificates delivered;
— port and date of the last expanded inspection, stating, where appropriate,
whether a detention was ordered;
— port and date of the last special survey and the name of the organization
which carried out the survey;
— number of detentions during the previous 24 months;
— country and port of detention;
6. Annex VIII, Directive 95/21/EC, as amended by Directive 2001/106/EC.
285
8.9
8.9
EQUASIS
II.
— date when the detention has been lifted;
— duration of detention, in days;
— number of deficiencies found and the reasons for detention, in clear and
explicit terms;
— description of the measures taken by the competent authority and, where
relevant, by the classification society as a follow-up to detention;
— if the ship has been refused access to any port within the Community, the
reasons for such measure in clear and explicit terms;
— indication, where relevant, of whether the classification society or any other
private body that carried our the survey has a responsibility in relation to the
deficiencies that, alone or in combination, led to detention;
— description of the measures taken in the case of a ship which has been
allowed to proceed to the nearest appropriate repair yard, or which has
been refused access to a Community port.
Information concerning ships inspected made public in accordance with Art.
15(2) must include the following:
— name of the ship;
— IMO number;
— type of ship;
— tonnage;
— name and address of the shipowner or operator of the ship;
— in the case of ships carrying liquid or solid cargoes in bulk, the name and
address of the charterer responsible for the selection of the vessel and the
type of the charter;
— flag State;
— the classification society or classification societies, where relevant, which
has/have issued to this ship class certificates, if any;
— the classification society or classification societies and/or any party which
has/have issued to this ship certificates in accordance with the applicable
Conventions on behalf of the flag State, stating certificates delivered;
— country, port and date of inspection;
— number and nature of deficiencies.
286
CHAPTER 9
The Erika, The Prestige and their effects on International
Legislation
9A INTRODUCTION
Soon after the Erika incident the shipping industry was facing another major pollution
incident and the same question again, i.e.: what more should be done to make ships safer
and less prone to structural failure leading to pollution?
The loss of, and oil pollution from, the Erika produced substantially greater effect
than any other previous oil pollution incident. Following the incident, the EU put
pressure on the international community for regulation, particularly with regard to the
present oil pollution civil liability and compensation Conventions. Until the Erika
incident, the Conventions had seemed to be working well. However the Erika incident
showed that the 1992 CLC and the 1992 Fund Convention could not deal with the
compensation claims. After the incident, the French government has been quite
effective in its efforts to produce a more effective policy on tanker shipping and pollution
prevention in EU waters. With the so-called “Erika packages”, the EU threatened the
IMO with unilateral action with regard to liability and compensation, together with
measures such as banning single hull tankers from EU waters.
The Erika incident took place on December 12 1999. Two months after the incident,
the Commission prepared its first legislative package; the Erika I package (March 2000),
and following that the Erika II package (December 2000).
In November 2002 the oil tanker Prestige, carrying 77,000 tonnes of heavy fuel oil,
broke in two and sank off the north-west coast of Spain. After this incident, the response
from the EU came even faster. The Commission adopted a Communication on
improving safety at sea on December 3 2001, only two weeks after the incident. The
Commission has called on the Council and the European Parliament to examine this
proposal urgently in order to get it adopted at the Transport Council on 27 March 2003.
In the aftermath of the Prestige accident, EU member States were urged by the
Commission and the European Parliament to speed up the implementation of the Erika
packages. The speed of the EU legislative process following the Erika and Prestige
incidents show that, since the Erika incident, the EU has decided to take a more active
role.
However, the EU has not been completely satisfied with the speed of the legislation
process in the IMO and the content of its adopted legislation. For instance, the
Commission regrets that the timetable it originally proposed for the phasing-out of
single-hull tankers was not accepted. The Commission initially proposed that Category
1 single-hull tankers such as the Erika or Prestige should be phased out once they became
23 years old. If this provision had been in force, the Prestige would have been prohibited
287
9.1
9.2
9.2
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
from entering an EU port after September 1 2002 (the application date of the Regulation
as finally adopted), as it was more than 23 years old on that date.
9B THE ERIKA, DECEMBER 1999
9.3
During the early morning of December 12 1999, the Maltese registered tanker Erika
broke in two in gale-force winds in the Bay of Biscay, off the south-west coast of Brittany,
France. It was reported that the crew detected cracks forming in the deck and that the
ship developed a significant list, but the master was refused shelter in a French harbour.
The ship altered its course but the hull broke in two and the ship sank, after the crew had
been rescued by helicopter. The tanker was travelling from Dunkerque, France to
Livorno, Italy, with a cargo of approximately 30,000 tonnes of heavy fuel oil. The bow
section of the vessel floated vertically above the waves throughout the day but sank
during the night in a depth of about 120 metres. During the morning of December 13,
the stern section also sank. About 20,000 tonnes of the heavy fuel oil cargo washed
ashore and polluted a stretch of about 400 km of the Atlantic coast of France.
Oil started to come ashore on December 24. On December 25, the first of the thick
fuel oil cargo hit the French Atlantic coast and washed up at dozens of points
simultaneously. About 400 km of beaches, including many popular holiday resorts, were
polluted by the oil, and thousands of seabirds were covered in it. The French Navy was
in charge of the clean-up operations at sea and mobilized vessels for offshore recovery.
The governments of Germany, The Netherlands, Spain and the UK also provided oil
recovery vessels to assist in the response. Over 5,000 people were engaged in shoreline
clean-up.
9 C H I S T O R Y O F T H E E R I K A1
9C.1 Background
9.4
The Erika was first registered under the Maltese flag in 1990. At the time of the
incident, it was classed with RINA, a full member of the IACS. The ship was under the
management of an Italian company, which was also ISM-certified by RINA.
It was one of a batch of eight sisterships built with successive yard numbers from
283–290 at Kasasdo Dockyard, Kudamatsu, Japan in 1974–76.2 It was a 19,666 gt
conventional steel single-hull oil tanker with segregated ballast tanks (SBTs). When it
was built, in 1975, the vessel was originally named Shinsei Maru. It was first assigned
class by NKK, also a full member of the IACS. During the same year it was renamed
Glory Ocean.
In October 1977, it grounded in the Orinoco River in Venezuela. In October 1979,
during an initial survey for transfer of class to ABS, it was examined in dry dock and
1. This summary of the history of the Erika is based on the “Report of the Investigation into the loss of the
motor tanker the Erika on Sunday December 12 1999”, Malta Maritime Authority, Merchant Shipping
Directorate, September 2000, pp.22–30.
2. See Middleton, I., “Erika . . . a key issue”, Seatrade Review, February 2000, pp.20–21; “Was the Erika
flawed right from the start?” Seatrends Web, Issue 1, January 2000, 7, pp.1–2.
288
HISTORY OF THE ERIKA
9.6
issued with recommendations, as a result of the grounding. The classification society
considered the indentations minor and repairs were deferred.
In December 1979, the ship ran aground again. In 1980, it changed its name to
Intermar Prosperity, and transferred class to ABS. In 1981 it was examined in dry dock
and recommendations were made for the repair of damages sustained in the two
groundings. Because of their minor nature, the repairs were deferred again.
In December 1983, it was dry docked at Curaçao in the Netherlands Antilles, where
repairs were undertaken. ABS issued an International Oil Pollution Prevention (IOPP)
certificate, which indicated that the No.3 centre cargo-only tank (COT) was being used
as a dedicated ballast tank. Nos.1, 3 and 4, port and starboard COTs were used as cargo
or ballast tanks.
In 1985, the ship was renamed South Energy. In January and February 1985, an ABS
surveyor examined and reported on damage. Repairs were carried out in March 1985, at
the Jacksonville Shipyard, Florida, USA.
In 1985, the ship again ran aground in the Orinoco river in Venezuela. There was no
pollution and no heavy damage was sustained. There was some minor damage to No.3
centre COT. Repairs were carried out in April 1986 at the Jacksonville Shipyard. At that
time, the ship was renamed Jahre Energy.
In March 1990, ABS attended the ship to examine and report on damage which was
said to have been caused by heavy weather. Repairs were carried out at Puerto Miranda,
Venezuela, in August 1990. Modifications were carried out to the ship’s ballast system:
Nos.2 and 4 port and starboard tanks were converted to dedicated clean ballast tanks
and No.3 centre tank reverted to a COT.
On December 5 1990, the ship was registered in Malta under the name of Prime Noble.
Between April and June 1993, it was dry docked at Sebutal, Portugal and surveyed by
BV. Following repairs, BV issued new statutory certificates on behalf of the flag State,
without any exemptions or recommendations.
In December 1994, registered ownership was transferred to Tevere Shipping
Company Ltd of Valletta, Malta, and the ship changed name to Nobless.
In July 1996, the ship was renamed Erika. The registered address of the registered
owners was changed to 13/16 Vincenti Buildings, Strait Street, Valletta, Malta. The
shareholders of Tevere Shipping Company Ltd are Agosta Investments Corporation
and Financiers Shipping Corporation, both of Liberia. Agosta Investments Corporation
is the sole director of the company.
In August 1996, oil contamination was discovered in No.2 port and starboard water
ballast tanks (WBTs) and recommendations were issued for the hydrostatic testing of
Nos.2 and 4 port and starboard WBTs, and of the cargo and ballast lines.
In September 1996, the ship ran aground on a sand bank in the approaches to
Sebutal, Portugal. An occasional survey of the hull afloat, and an underwater bottom
inspection, were carried out. Except for some areas with scratched paint on the
starboard side, the bottom of the vessel was reported to be undamaged.
In April 1997, No.2 port and starboard WBTs were converted to SBTs in accordance
with MARPOL 73/78 Annex I, Reg. 13, and No.4 port and starboard tanks reverted to
COTs. Thickness measurements were taken of suspect areas and No.2 port and
starboard SBTs showed considerable deterioration of the web frames. According to the
attending BV surveyor’s report, the necessary repairs had then been carried out.
In June 1997, Panship Management and Services srl assumed the technical
289
9.5
9.6
9.6
9.7
9.8
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
management for the purposes of ISM Code para. 3.1 and, following satisfactory audits,
RINA issued the relative DOC on behalf of the flag State.
In February 1998, a pre-entry survey of the ship was carried out by RINA at Aliaga,
Turkey. During this survey, No.2 port and starboard SBTs were found to be
contaminated with oil. Corrosion and wastage were noted in several places in No.2 port
SBT. Deficiencies in the pipelines on the main deck and heavy localized pitting on the
main deck were also reported. The survey was carried out during the cargo operations,
and the surveyor considered the ship unsuitable for classification with RINA unless the
necessary repairs were completed.
In May 1998, the owner asked for a short postponement of the vessel’s special survey
until June. BV agreed to grant an extension to cover a single voyage in ballast from
Naples to Montenegro. The vessel was scheduled to arrive in Montenegro on June 23
1998 where a special survey would be carried out. However, soon after the Erika left
Naples, BV was informed by RINA in Italy that the owner had requested a transfer of
class. Under the IACS agreement, the society “losing” the ship must reveal all surveys
and recommendations relating to the ship, and the “gaining” society must agree to make
the changes. RINA agreed to perform the special survey and there were no
recommendations.
In June 1998, RINA issued the ship’s SMC on behalf of the flag State. During the
same month the process for the transfer of class from BV to RINA was formally initiated.
Between June and August 1998, the Erika underwent substantial repairs, under
RINA’s supervision, at the Adriatic Shipyard in Bijelo, Montenegro. The survey report
indicated that the hard coating in Nos.2 and 4 port and starboard SBTs, and on the
forepeak, was in poor condition. At that time, RINA conducted the first entry survey and
the special survey, under the enhanced survey programme.
As part of the special survey, ultrasonic thickness measures were taken. Consequently
steel renewal was carried out in the forepeak, in No.2 port and starboard SBTs and on
the main deck. Repairs and other work were also carried out on the pipelines on deck, the
propeller, the emergency towing arrangement and the main engine. Modifications were
made to the ship’s piping system. No.4 port and starboard tanks were converted to
segregated ballast tanks.
In August 1998, following the completion of the special survey at Bijelo, the ship was
assigned class by RINA, which also issued the relevant statutory certificates.
In November 1998, a report was issued by RINA which stated that the ship did not
suffer from defects affecting the integrity of the hull or the structure, that there were no
outstanding recommendations affecting class, and that material wastage was within the
class requirements.
In September 1999, the Erika was time chartered to Selmont International Inc. of the
Bahamas.
Inspections were carried out and the vessel approved for use by Standard Marine and
Texaco in Sicily, less than a month before it sank. A few days before, RINA had
completed its annual survey and duly endorsed the Erika’s class certificate. The only
person who had spotted that something could be wrong with the state of the ship’s
structure was the surveyor from RINA. He expressed doubts about the thickness of the
longitudinal deck structures close to the port and starboard ballast tanks during an
inspection in Augusta, Italy. In his report, he underlined “thinnings to the deck
longitudinally” in the areas of the ballast tanks where the vessel was eventually believed
to have broken in two. The report recommended that thickness measurements should
290
9.10
HISTORY OF THE ERIKA
be taken and safety certificates were endorsed. He recommended a thickness measurement to be carried out by January, but the Erika sank before the work could be carried
out.
On December 8 1999, the Erika left Dunkirk, France, on a voyage charter to the Total
Transport Corporation of Panama.
On Sunday, December 12 1999, it broke into two and sank.
9C.2 Names, registrations, and classification societies of the Erika3
9.9
Year
Name
Registration
Classification society
1975
Shinsei Maru
Japan
NKK
1975
Glory Ocean
Panama
NKK
1977
Intermar Prosperity
Liberia
NKK
1980
Intermar Prosperity
Liberia
ABS
1985
South Energy
Liberia
ABS
1986
Jahre Energy
Liberia
ABS
1990
Prime Noble
Malta
ABS
1993
Prime Noble
Malta
BV
1994
Nobless
Malta
BV
1996
Erika
Malta
BV
1998
Erika
Malta
RINA
9C.3 Inspections
At the time of its sinking, all of the Erika’s class and statutory certificates were valid.
Between 1991 and 1999, it was inspected 18 times by flag State control and port State
control inspectors. This figure does not include the vetting inspections undertaken by
the oil majors, nor the surveys carried out by the classification society. According to the
report prepared by Malta Maritime Authority, none of the flag or port State control
inspection reports made mention of any inspectors having actually entered the ballast
tanks. During this period the ship was detained five times as a result of port State control
inspections and the last detention was precisely two years before its sinking, at
Rotterdam. The deficiencies noted at that time were not related to structural faults and
were rectified immediately.
In the summer of 1998, the Erika underwent substantial repairs under the supervision
of RINA. Between the completion of these repairs and its sinking it was inspected five
times. In three of these inspections, no deficiencies were reported. In the other two, four
minor deficiencies were noted.
Several European oil companies chartered the Erika throughout the 1990s. The
inspectors of Texaco, Exxon’s subsidiary Standard Marine, Repsol and Shell approved
it as a fit vessel to carry their cargoes. The vessel was also approved by TotalFina, whose
cargo it was carrying when it sank. In December 1999, the Erika had the approval of
3. The Report of the Malta Maritime Authority, p.30, Table 2.31.
291
9.10
9.10
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
most major oil companies, which carry out vetting inspections prior accepting a tanker.
The reports of these inspections do not mention any deficiencies in the hull, apart from a
split and corroded port-side scupper plate, recorded the month before the casualty.
9C.3(i) Port State control inspections4
9.11
No
Country
Port
Date
Deficiencies
Comments
1
Ukraine
Novorossisyk
11.12.99
Immersion suit
without light and
batteries;
freeboard marks not
painted;
lifebuoy light not
working;
fireman’s outfits stored
together
To be rectified within
14 days/next port
2
Ukraine
Odessa
07.08.99
3
Ukraine
Odessa
06.05.99
The only deficiency
noted was the DOC
endorsement
anniversary date
February 3 1998
(range from November
3 1998 to May 3
1999)
To be rectified within
14 days.
The annual
verification at the
company’s office was
carried out and the
DOC endorsed on
April 13 1999. A copy
of this endorsement
had not yet been
placed on board
4
Sardinia
Porto Torres
04.08.99
5
Georgia
Batumi
10.11.98
6
Norway
Stavanger
05.20.98
Sanitary facilities;
lifeboat platforms,
floating blocks and
sheaves corroded;
fire boxes to repair;
davit for
accommodation
ladder, blocks and
wires corroded;
lifeboat engines to be
overhauled;
freeboard marks to be
painted;
to repair insulation in
cargo pump room;
platforms, ladders,
drip trays, fish plates
and electric conduit
pipe on main deck
corroded and to be
repaired;
stowage of gas
cylinders; freon bottles
in the engine room to
be secured
permanently;
To be rectified within
14 days. The ship was
allowed to sail to
Naples and BV carried
out surveys.
Conditional LL, IOPP
and Safety
Construction
Certificates were
issued, valid for a
single voyage in ballast
to a shipyard in
Montenegro
4. The Report of the Malta Maritime Authority, p.153, Annex 6.
292
9.11
HISTORY OF THE ERIKA
No
Country
Port
Date
Deficiencies
Comments
thickness measurement
to be provided on
board
7
Netherlands
Rotterdam
12.11.97
IOPP Certificate
incorrect entries; no
records of lifeboats
lowered in water in the
previous three months;
radio clock not
working; some ITU
publications not
updated; some
lifejacket lights not
working; dirty galley
floor; emergency fire
pump insufficient
suction; small hole on
the outside bulkhead
of crew’s toilet
8
USA
New Orleans
01.16.97
Faults related to the
firefighting system
9
Portugal
Ponta Delgada
08.22.96
Recurrent engine
faults; winches/
windlass
10
Poland
Gdynia
06.05.96
Auxiliary engines out
of order; invalid liferaft
certificates
Vessel detained. The
ship had called at
Gdynia, Poland to
carry out repairs and
change of name. At the
time of inspection the
ship was already
undergoing repairs and
both generator engines
were dismantled.
Following class survey
all class and statutory
certificates were
amended and placed
on board. Both
generators were
reported to be in
satisfactory condition
by BV. (A flag State
inspection was carried
out on July 15 1996)
11
UK
Avonmouth
08.17.94
12
USA
Portland
04.28.94
Leaks in deck fire and
foam lines due to
deterioration/poor
maintenance
Vessel detained. The
ship was released
following temporary
repairs carried out
under the supervision
of BV. The ship sailed
directly to Freeport,
USA, where
permanent repairs
were completed on
June 6 1994
293
Vessel detained.
Between December 11
and 13 1997, BV
attended on board and
confirmed that the
deficiencies noted by
the PSC had been
rectified
9.11
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
No
Country
Port
Date
Deficiencies
Comments
13
Italy
Milazzo
04.17.94
Defects on lifeboats
14
Spain
Santander
01.26.94
15
Canada
Newfoundland
04.03.92
Defects in life-saving
and firefighting
equipment
Vessel detained
16
USA
Savannah
04.11.91
Inflatable liferafts
annual service
overdue; inoperative
inert gas system
Vessel detained. ABS
attended on board and
confirmed that the
deficiencies noted by
the PSC had been
rectified
Apart from port State control inspections, two flag State inspections were carried out
on the Erika. In 1996 inspection was carried out in Gdynia, Poland, followed an earlier
PSC inspection. During the inspection it was reported that certain publications were not
found on board. The second flag State inspection took place in 1999 in Porto Torres,
Sardinia, where it was reported that the radio station licence was not found on board,
and that records of the man overboard drills were not being kept.
9C.4 Sisterships
9.12
As stated above, the Erika was one of a batch of eight sisterships built with successive
yard numbers from 283–290 at Kasasdo Dockyard, Kudamatsu, Japan in 1974–76. All
the vessels appear to have been built for Japanese owners or for Japanese charterers and
then sold on after a few years. Half of the sistership vessels experienced significant
structural deck failure due to heavy corrosion when they were between 10 and 15 years of
age, from the late 1980s to 1991–92. These structural failures occurred before the
implementation of the Enhanced Survey Programme (ESP) in 1993 by the IACS.5 The
ships were registered under different flags, classed with different classification societies,
under different ownership, and examined by different surveyors. Severe corrosion
featured strongly and was common to all.
In April 1990, one of the sister vessels, then Green King, sagged and buckled right
across the deck while it was on a laden voyage to San Vicente and Valparaiso. The vessel
limped to Valparaiso for temporary repairs before going into dock. The vessel is still in
service and is now known as the Mutank Vision.
In December 1999, another sister vessel, the New Venture, hogged and fractured right
across the deck while it was ballasting back across the Atlantic to Rotterdam in heavy
weather after a difficult voyage to Montreal. The vessel managed to reach the UK and
laid up in the River Fal. However, the classification society, ABS, wanted several
5. In 1992, the IACS introduced a unified requirement, URZ10.1 (revised in 1994 and 1996), which offers
guidelines for the technical assessment of a ship’s structure, and for the planning of enhanced surveys for those
bulk carriers and oil tankers assigned the class notation ESP (Enhanced Survey Programme). In November
1993, the IMO adopted Resolution A.744(18), which provides guidance on the enhanced programme of
inspections during the surveys of bulk carriers and oil tankers. This became effective in July 1995, in line with
the new requirements for single hull tankers. This resolution was incorporated in SOLAS 1974 Chapter XI,
reg. 2. The requirements apply to all surveys, beginning with the first special survey, and continuing with each
annual, intermediate and renewal survey.
294
THE PRESTIGE , NOVEMBER
2002
9.14
hundred tonnes of steel renewal done and money was not raised for the repair. After a
while, the vessel was bought for a scrap value of $1.35m and repaired in Piraeus. Today,
the vessel trades as the Patriot.
A third sister vessel, which was not identified, had to turn back on a transatlantic
voyage after similar severe structural problems.
At the time of writing, the names and flags of the Erika’s seven sisterships were as
follows:
—
—
—
—
—
—
—
Mariner A (Malta flag);
Yasmeen (Liberia flag);
Mutank Vision (Liberia flag);
Patriot (Panama flag);
Seacross (scrapped in March 1999);
Siena (Malta flag);
Fenerbahce 1 (Turkey flag).
9D THE PRESTIGE, NOVEMBER 2002
On Wednesday November 13 2002, a Bahamas-registered 26-year-old single hull
tanker, the Prestige, suffered hull damage in heavy seas some 30 miles off Cape
Finisterre, Spain, and developed a severe list. It was carrying a cargo of some 77,000
tonnes of heavy fuel oil, a quantity of which was lost at the time of the initial damage and
more thereafter. The vessel drifted to within five miles of the coast before salvage vessels
were able to make fast towlines to the vessel on November 14 2002. The Spanish
government refused the request of the salvors to allow them to bring the casualty to a
sheltered location. The vessel was ordered to be held more than 60 miles offshore. Six
days later, the vessel was still at sea, having been refused for port of refuge. By the
morning of Tuesday November 19 it had reached a position some 170 miles west of
Vigo, Spain. Despite the salvors’ attempt to minimize the stresses on the vessel, it broke
in two early that day and the two sections sank some hours later in water some two miles
deep. At the time of the sinking, it was reported that a substantial further quantity of oil
was released.
The west coast of Spain was polluted with oil to varying degrees. No oil was reported
to have come ashore in Portugal, but some clean-up operations at sea were carried out by
the Portuguese authorities.
As with the Erika, the oil involved in the Prestige incident was heavy fuel oil. This
highly viscous product does not easily break down and dissipate naturally, even when
wave action is severe. Its highly persistent nature therefore means that it can travel long
distances, threatening coastlines and sensitive resources many hundreds of miles from
the original spill site.
9.13
9D.1 Ship’s history6
IMO number: 7372141
Built: 1976 at Hitachi Shipbuilding & Engineering Co. Japan
6. The summary of the history of the Prestige is based on an ABS Press Release of November 20 2002,
http://www.eagle.org/news/press/nov202002.html.
295
9.14
9.14
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
Owner: Mare Shipping Inc., registered in Liberia
Manager: Universe Maritime Ltd, Greece
Class: ABS built and maintained to ABS class
Flag: Bahamas
MARPOL 13G phase-out date: March 11 2005
Design deadweight: 81,589 dwt
Gross tonnage: 42,820
Sister vessels: None in service
Statutory certification: ABS on behalf of Bahamas with the exception of ISM certification,
which was issued by BV
P&I coverage: London Steamship Owners Association
Pollution liability coverage: The operators state that Mare Shipping is fully covered for
shipowner’s pollution liability within the IOPC Fund
Notes: The vessel was constructed of mild steel; the vessel was subject to the IACS ESP.
The vessel was a Category 1 vessel under MARPOL 13G requirements, approved for
either hydrostatic balanced loading (HBL), as a crude oil tanker, or in clean ballast tank
(CBT) mode with 30% side or bottom protection as a product tanker. According to the
information provided by the operator, at the time of the casualty the vessel was loaded in
conformance with CBT requirements. Under the US Oil Pollution Act of 1990, single
hull tankers of 30,000 gt and larger without either double sides or double bottoms were
not permitted to trade in US ports after January 1 2000. However, the Prestige would
have been permitted to carry cargo to the US until January 1 2015 provided it was
offloaded either at a licensed deepwater port (e.g. the Louisiana Offshore Oil Port), or at
any one of four established offshore lightering zones. These are located more than 60
miles offshore (Southtex, Gulfmex No.2, Offshore Pascagoula No.2 and South Sabine
Point).
9D.2 Class survey history
9D.2(i) Special Survey No.5: conducted in Guangzhou, China, May 2001
9.15
This survey covered the following areas:
Class: Dry docking survey, tailshaft survey, annual and special periodic survey of hull,
automation & inert gas system, annual survey of machinery, special continuous
survey machinery, boiler surveys, damage/repair survey, gauging survey and review;
Statutory: Annual load line inspection, load line renewal, safety radio (SLR), safety
equipment (SLE), safety construction (SLC) and IOPP renewal surveys, survey for
compliance with SOLAS regs. II-1/3.3 and II-2/59, and cargo gear re-testing
surveys.
Two ABS surveyors with appropriate qualifications attended. The gauging firm used
was Dimitros Thomas Marine Ltd, whose certification was issued 12 October 1998 with
a validity of three years.
The vessel was first visited on April 2 2001. Overall inspection, close-up survey and
thickness measurements were carried out together with the hydrostatic testing of the
tank boundaries as required by the rule requirements afloat at anchorage in Guangzhou
296
THE PRESTIGE , NOVEMBER
2002
9.17
between April 2–10 2001. Thickness measurements were taken in accordance with the
rule requirements during the close-up survey and witnessed by the surveyors. The
certificate for the gauging technician and the calibration records were reviewed and
found in order, the equipment was also verified to be in order before the thickness
measurements commenced.
Upon completion of the above examinations, the vessel was moved to Guangzhou
Cosco Shipyard for repair on April 10 2001. Before commencement of the repair, the
material for repair was verified against the mill certificate, the material was also selected
for confirmatory testing and all was shown to be in order. The welding procedures and
the welders’ qualification records, the non-destructive testing equipment records and
the operators’ qualifications were verified. The welding sequence and gauging process
were also discussed with the shipyard’s quality control department and the shipowner’s
representative.
Major repairs were undertaken in the side ballast/cargo No.3 tanks, port and
starboard, and concentrated mostly on the transverse bulkheads and frames at the upper
levels within the tank. Accordingly, the tanks were fully staged at frames 61 and 71 and
between frames 65–70. Staging was also extended to various areas for the repair of shell
and bulkhead longitudinals.
In particular, in the area of side ballast/cargo tanks No.2 (aft) and No.3, the shell
plates were close-up surveyed internally and externally examined. There was no area of
concern noted on the shell plate. Thickness measurement results showed that the
average wastage on the shell plate was less than 10 per cent. No repair was considered
necessary on the shell plate at the time. The starboard shell longitudinals were found to
have less than 10 per cent wastage at side ballast/cargo tank No.2 (aft) and the starboard
shell longitudinals were found to have mostly between 10–15 per cent wastage at side
ballast/cargo tank No.3 at the time of the survey.
The repair works on board were divided into three stages: fit-up, gauging and final
examination. They were carried out under supervision of the attending surveyors and
found satisfactory.
Upon completion of the repair, confirmatory non-destructive testing by radiographic
and ultrasonic methods was selectively carried out; confirmatory hydro-tests and
air-tests were also carried out; and all was found satisfactory. The repairs and testing
were completed on May 19 2001.
Total steel replaced was estimated at 362 tonnes. The repairs that were required were
in accordance with those that could reasonably be expected on a vessel of this type at fifth
special survey.
9.16
9D.2(ii) Annual survey: conducted in Dubai, UAE
The vessel’s last annual class survey and statutory surveys were carried out by the
Dubai office of ABS while the vessel was in the Fujairah anchorage in the UAE in May
2002. The survey was commenced on May 15. All repairs were completed to the
surveyor’s satisfaction and the appropriate certificates were issued on May 25 2002. The
matters covered were as follows:
Class surveys: annual surveys of hull, machinery, automation and inert gas system.
Damage/repair survey.
297
9.17
9.17
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
Statutory surveys: annual load line inspection, SLR (periodical), SLE (annual), SLC
(annual), IOPP (annual), annual cargo gear.
9.18
9D.2(iii) Port State control inspections
According to the Equasis database, the following PSC inspections were undertaken:
Date
September 1999, Rotterdam
June 25 1999, Baltimore
May 19 1999, Long Island
April 19 1999, New York
April 15 1999, Long Island
November 28 1998, Port Hawksbury
Deficiencies/detentions
No detentions; two life-saving-related
deficiencies, one general deficiency
No detentions, no deficiencies
No detentions, no deficiencies
No detentions, one navigation-related
deficiency
No detentions, no deficiencies
No detentions, no deficiencies
Lloyd’s Seasearcher database reports one previous casualty, in 1991, involving a fouled
propeller.
9D.3 The cargo
9.19
The operators of the vessel state it was carrying a cargo of 76,972 tonnes of heavy fuel
oil, typically used as bunker fuel. The cargo was distributed as per the loading plan, by
which the No.2 (aft) port and starboard and No.3 port and starboard wing tanks were
left empty.
According to the loading configuration provided to ABS by the owner, the vessel
appeared to have been loaded properly, in conformance with the loading manual, and
with a maximum bending moment of 43 per cent of the maximum allowable still-water
bending moment, on departure from Latvia.
9E OTHER INCIDENTS
9E.1 The Castor, December 2000
9.20
The Castor, a tanker of 30,068 dwt, was in the course of a voyage from Black Sea ports
when it developed a crack in the main deck during a storm in the western Mediterranean
off the coast of Morocco. It was loaded with 8.7 million gallons of unleaded gasoline. It
was taken in tow by a salvor on the terms of Lloyd’s Standard Form of Salvage
Agreement. (Comprehensive oil spill and blast assessment analyses have been conducted by different authorities, and according to all of them the risk of environmental
damage would have been greater if the vessel had remained at sea, in the open ocean,
rather than in a more sheltered area.) Salvors requested the authorities of several
Mediterranean countries to allow the casualty to be brought into a sheltered place of
refuge for cargo transhipment to take place. However, despite the risk of marine
pollution and loss of life if deep-sea transhipment were attempted, none of the coastal
States offered the vessel-owner or the salvors a protected area closer to shore. The Castor
was unable to find a sheltered place to effect cargo transfer and repairs for some 35 days.
298
THE COMPENSATION SYSTEM
9.22
The authorities of Morocco and Gibraltar prohibited the vessel’s entry into waters or
ports under their jurisdiction. The vessel then sailed towards the vicinity of the
south-east coast of Spain. However, the Spanish Maritime Authority requested the
vessel to keep its distance from the Spanish coast. The crew was evacuated during this
waiting period. Finally the vessel was towed to the coast of Tunisia where the salvors
were obliged to perform a ship-to-ship transfer on the high seas after towing the vessel
over 2,000 miles around the western Mediterranean. Fortunately its cargo was safely
unloaded.
9E.2 The Tasman Spirit, July 2004
The Tasman Spirit, carrying 67,000 tonnes of crude oil destined for the Pakistan
National Shipping Corporation (PNSC), ran aground near Karachi port on July 27
2004. Three attempts were made to tow it away; all failed. On August 14, cracks
appeared in the hull of the tanker. The vessel had four tanks. One tank contained 20,000
tonnes of oil, which was saved. The second tank held about 12,000 tonnes of oil which
leaked into the sea. The remaining tanks contained about 37,000 tonnes of oil.
On August 18, the tanker broke into two pieces and the oil spread to the coastline of
Clifton Beach, Karachi. Port authorities brought a suit against PNSC, claiming
damages of up to $1 billion. In turn, PNSC sued the vessel’s owner.
9.21
9F THE COMPENSATION SYSTEM
9F.1 In general7
The present international regime of compensation for damage caused by oil pollution
is based on two international Conventions adopted in 1992 under the auspices of the
IMO—the 1992 CLC and the 1992 Fund Convention, which establishes the IOPC
Fund. The Conventions have been implemented into the national law of the States
which have become parties to them.
The maximum amount of compensation payable by a shipowner’s insurer and by the
IOPC Fund 1992 was fixed by governments at the diplomatic conference that adopted
the 1992 Conventions. The maximum sum payable by the 1992 Fund for any incident
occurring on or after November 1 2003 is 203 million Special Drawing Rights (SDR)
(approximately $300 million). The maximum payable by the 1992 Fund for any
incident occurring before November 1 2003 is SDR 135 million. The maximum payable
under the earlier 1971 Fund Convention for an incident is only SDR 60 million. These
amounts are less the compensation paid by the shipowner.
Additional compensation is likely to be available in future for victims in States that are
Members of the 1992 Fund and join the IOPC Supplementary Fund.8 The maximum
7. See http://www.iopcfund.org/npdf/brochure–2002en.pdf and http://www.iopcfund.org/FAQs.htm.
8. A Protocol establishing an IOPC Supplementary Fund was adopted by a diplomatic conference held at
the headquarters of the IMO in London in May 2003. The aim of the Supplementary Fund is to supplement
the compensation available under the 1992 Civil Liability and Fund Conventions with an additional third tier
of compensation. Membership of the Supplementary Fund is optional and any State that is a member of the
1992 Fund may join the Supplementary Fund. The Protocol will enter into force three months after it has been
ratified by at least eight States which have received a combined total of 450 million tonnes of contributing oil in
a calendar year. The Supplementary Fund will only pay compensation for pollution damage in States that are
Members of the Supplementary Fund for incidents occurring after the Protocol has entered into force.
299
9.22
9.22
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
payable by the Supplementary Fund for one incident would then be SDR 750 million,
less the compensation paid by the shipowner and the 1992 Fund.
Any person or company that has suffered pollution damage in a member State of the
IOPC Fund 1992 caused by oil transported by ship can claim compensation from the
shipowner, his insurer and the Fund. This applies to individuals, businesses, local
communities or States. To be entitled to compensation, the damage must result from
pollution and have caused a quantifiable economic loss. The claimant must substantiate
the amount of its loss or damage by producing accounting records or other appropriate
evidence.
An oil pollution incident can give rise to claims for damage of four main types:9
—
—
—
—
property damage;
costs of clean-up operations at sea and on shore;
economic losses by fishermen or those engaged in mariculture;
economic losses in the tourism sector.
Financially speaking, the fourth type of claim is the most important, as such incidents
have a serious negative impact on the tourism industry in the affected area, and the
greatest uncertainty relates to the claims in the tourism sector. Claims assessment is
carried out according to criteria laid down by representatives of the governments of
member States.
9F.2 Payments for the Erika and the Prestige
9F.2(i) The Erika10
9.23
The shipowner’s liability insurer, the Steamship Mutual P&I club, and the 1992 Fund
established a claims office in Lorient on January 12 2000 to assist claimants wishing to
make a claim for compensation for pollution damage under the 1992 Conventions, and
to receive and examine compensation claims.
Compensation was available to any individual, business, private organization or
public body that suffered pollution damage as a result of the Erika incident.
Compensation was payable under the 1992 CLC and Fund Convention as enacted into
French law.
Approximately FFr84 million, or c13 million, compensation was available from the
shipowner’s liability insurer, Steamship Mutual. Additional compensation of up to
approximately FFr1,128 million, or c172 million, was available from the IOPC Fund.
In other words, a total of FFr1,212 million, or c185 million was available for
compensation payments. However, the total amount of the claims by far exceeded that
amount. In order to enable the 1992 Fund to make substantial payments to claimants,
the French government and Total Fina Elf undertook to pursue their claims only if and
to the extent that all other claimants were compensated in full, the claim by Total Fina
9. The 1992 Fund pays for what is defined as “pollution damage”. This covers the cost of clean-up
operations and property damage, as well as claims for consequential loss and pure economic loss. For example,
fishermen whose nets have become polluted are entitled to compensation for cleaning or replacing nets, and
compensation for loss of income while they are unable to fish. Hotel owners at seaside resorts are entitled to
compensation for loss of tourism income resulting from an oil spill. Compensation is also paid for measures
taken to prevent or minimize pollution.
10. http://www.iopcfund.org/erika.htm.
300
THE COMPENSATION SYSTEM
9.24
Elf to rank after the government’s claim. As there was no certainty about the total
amount of admissible claims, the executive committee had decided to limit provisionally
the payments to 80 per cent of the loss or damage actually suffered by an individual
claimant, as agreed with the claimants on the basis of assessment by the 1992 Fund’s
experts. Following this reduction, the level of payments to claimants other than the
French government and Total Fina Elf was increased to 100 per cent in April 2003.
Since April 2003, uncertainty as to the total amount of the established claims has been
reduced further. As a result, in October 2003 the Fund executive committee authorized
the director to make payments in respect of the French government’s claim to the extent
that he considered there was a sufficient margin between the total amount of
compensation available and the Fund’s exposure in respect of other claims. Accordingly, on December 29 2003, the 1992 Fund paid c10.1 million to the State of France
for the French government’s subrogated claim in respect of the supplementary
payments it made to claimants in the toursism sector.
If there has been no agreement between a claimant and the Fund within three years of
the date on which the damage occurred, the claim becomes time-barred. In order to
retain their rights to compensation, claimants had to take legal action against the
shipowner, his liability insurer and the 1992 Fund before the end of the three-year
period. The fact that legal action has been taken does not, however, prevent negotiations
continuing with the aim of reaching an amicable settlement. In respect of the Erika
incident, the exact date of the damage has varied according to the geographical area and
the type of damage suffered. December 12 2002 was set as the date by which legal
actions should have started.
As at April 1 2004, 6,908 claims for compensation had been submitted for a total of
c207 million. About 6,523 claims had been assessed by the experts engaged by the 1992
Fund and Steamship Mutual. A total of c83 million had been paid out in respect of
5,488 of those claims. A further 385 claims, totalling c25 million, were either in the
process of being assessed or were waiting for claimants to provide further information
required for the completion of the assessment.
9F.2(ii) The Prestige11
Following the Prestige incident, the 1992 Fund and the shipowner’s P&I insurer
established a claims office in La Coruña to assist claimants wishing to make claims for
compensation for pollution damage in Spain.
Again, compensation was available to any individual, business, private organization or
public body that suffered pollution damage as a result of the Prestige incident.
Compensation was payable under the 1992 CLC and Fund Convention, which form
part of Spanish, French and Portuguese law.
It is estimated that the total losses caused by the incident in Spain, France and
Portugal could be as high as c1,100 million, which is well in excess of the amount
available under the 1992 Conventions. Approximately c22 million compensation is
available from the shipowner’s liability insurer, the London P&I Club. Additional
compensation of up to approximately c150 million is available from the 1992 Fund. In
other words, a total of c172 million is available.
About 505 claims totalling c588 million had been presented to the claims office in La
11. http://www.iopcfund.org/prestige.htm.
301
9.24
9.24
9.25
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
Coruña by April 1 2004. The biggest claim is that by the Spanish government, for c428
million, relating to clean-up operations and to payments made by the government to
individuals and businesses affected by the oil spill. A claim for c131 million has been
submitted by various groups of fishermen, representing some 13,600 fishermen and
shellfish harvesters. As regards France, some 212 compensation claims totalling c13
million have been received by another claims office set up in Bordeaux. These claims
relate to clean-up and to losses in the fishing, mariculture and tourism industries.
Further claims are expected in Spain and France. In Portugal, a claim has been received
for the cost of clean-up operations incurred by the Portuguese Navy amounting to c3.3
million. No claims have been received so far in respect of the United Kingdom.
In May 2003, the executive committee considered the estimates of the economic
consequences of the incident made by the Spanish, French and Portuguese governments and the uncertainties in respect of these estimates, in particular as regards the
potential losses in the tourism sector. The committee decided to fix, for the time being,
the level of payment at 15 per cent of the actual loss or damage suffered by the respective
claimants. This decision enabled the 1992 Fund to start payments to claimants. The
committee decided in October 2003 to maintain the level of payments at 15 per cent. At
the October 2003 session, the Spanish government requested that the 1992 Fund
should make advance payments on account, subject to certain conditions.
The assembly decided that the Fund should, in accordance with normal procedures,
make a preliminary assessment of the claim submitted in October 2003 by the Spanish
Government for c383.7 million and pay 15 per of the assessed amount. In view of the
exceptional circumstances of the Prestige incident, the committee further decided to
authorize the director, subject to a general assessment of the total admissible damage in
Spain arising from the incident, to make a further payment of the balance between 15 per
cent of the assessed amount of that claim and 15 per cent of that claim as submitted. The
assembly further decided that before such a further payment was made, the Spanish
government should provide a guarantee, from a financial institution with the financial
standing laid down in the 1992 Fund’s internal investment guidelines, so as to protect
the 1992 Fund if an overpayment situation were to arise.
9G REACTIONS
9G.1 General
9.26
The loss of, and pollution from, the Erika, produced a substantially greater effect than
the Braer, the Sea Empress or the Aegean Sea.12 The volume of oil lost from the tanker was
less than seven per cent of that spilled when Amoco Cadiz grounded on the rocks of
nearby Brittany in 1978. But the Erika has stirred at least as much, if not more, media
interest and industry repercussions than the Amoco Cadiz. One of the reasons for such
major media attention was that the ship broke up at sea. Such occurrences are rare. But
as such incidents prompt accusations of poor hull conditions, they cause deep concerns
as to how a ship safety regime allowed such an incident to happen. Secondly, the cargo
was residual fuel oil rather than crude oil—more toxic, more viscous when unheated,
with little or no evaporation, and slower to break down. The third factor was the
12. See Box, B., “The Erika effect”, Seatrade Review, March 2000, pp.19–21.
302
REACTIONS
9.27
exposure and involvement of the tanker’s well-known voyage charterer TotalFina.
Fourthly, the incident happened in TotalFina’s homeland, France.
With the Prestige incident, the industry was faced with the same questions. The Prestige
had Greek officers and a Filipino crew. It was Bahamas-flagged, American-classified,
Greek-owned, managed by a company registered in Liberia—and chartered by a
Russian business with Swiss interests. And this is not the worst example of a shipping
business; there are much worse examples of shipping companies with multinational
involvements. However, rather like the Erika, the Prestige went through port State
control inspections six times since 1998 with a record of zero detentions and only four
minor deficiencies. It was built to ABS class requirements and at the time of the incident
was in full compliance with all ABS classification requirements, including the IACS
ESP. The Prestige was a Category 1 vessel under the MARPOL 13G requirements.
Although the tanker was not configured for protectively located segregated ballast tanks
(PLSBT) it was approved for HBL, and ABS had initiated a comprehensive review of
sloshing and other analyses undertaken as a part of that approval. The vessel’s phase-out
date under MARPOL would have been 2005. The Prestige was also subject to a
comprehensive regime of safety and environmental regulations including those of the
main IMO Conventions such as SOLAS and MARPOL, to both of which its flag state of
the Bahamas is a party.
9G.2 Post-Prestige Response in Spain
9G.2(i) Royal decrees
BAN ON SINGLE HULL TANKERS
In December 2002, a Royal decree-law was published by the Spanish government
which bans all single hull tankers, regardless of flag, carrying heavy fuel, tar, asphaltic
bitumen and heavy crude entering Spanish ports, terminals or anchorages. The
legislation was effective from January 1 2003.
The reasons for the early application of this ban were explained by the Spanish
authorities as follows. They referred to the draft Regulation presented by the European
Commission in February 2000—supported by, among others, the Spanish delegation—in connection with the withdrawal of single hulled tankers. The draft
Regulation was as follows: “Crude oil tankers of 20,000 tonnes deadweight or more and
those cargo vessels of 30,000 tonnes or more . . . may not operate if the vessel is 23 years
old or on 1st June, 2005 if this date falls first”. This issue was debated at the IMO in April
2001, but in the end was not included in the wording of Regulation 417/2002 regarding
the speeded-up introduction of rules on double hulls or equivalent designs for tankers.
Spanish authorities believed that, if the Commission’s proposal had been approved, the
Prestige would not have sailed at all in 1999, the date when it reached 23 years of age.
In December 2002 the EU Council of Ministers of Transport, Telecommunications
and Energy adopted a series of measures for the safety of marine transport and the
prevention and fighting of ecological catastrophes like those arising from the sinking or
running aground of vessels such as the Aegean Sea, Erika or Prestige and in this regard it
was decided that heavy oil must only be transported in double hulled tankers, carrying
this cargo into their ports, terminals or anchorages. Member States were also urged to
adopt these measures to allow maritime States to check and, if necessary, restrict the
movement of vessels carrying dangerous and contaminating cargoes within a limit of 200
miles of their coasts.
303
9.27
9.27
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
With these initiatives in mind, the Spanish government proceeded to apply these
provisions immediately and therefore approved 24343 Royal decree-law 9/2002 of
December 13. Punishment for failure to comply with the ban will be a fine of up to
c3,000,000.
9 9 5 / 2 0 0 313
This Royal decree was published in July 2003 in order to regulate the requirements
and proceedings for loading and unloading operations for bulk carriers in Spanish ports.
This regulation incorporates Directive 2001/96/EC. The aim of the decree is to enhance
the safety of bulk carriers calling at Spanish terminals in order to load or unload solid
bulk cargoes by reducing the risks of excessive stresses and physical damage to the ship’s
structure during loading or unloading operations through the establishment of
harmonized suitability requirements for those ships and terminals, and harmonized
procedures for co-operation and communication. It will be applicable to all bulk carriers
berthed in a Spanish terminal for loading/unloading purposes. It makes compulsory
certain elements of the Safe Loading and Unloading of Bulk Carriers (BLU) Code 1998.
Under this legislation, terminal operators shall satisfy themselves as to the operational
suitability of bulk carriers for the loading or unloading of solid bulk cargoes by checking
that bulk carriers comply with the requirements stated in the Annex I of the decree.
Terminal operators also have to make sure that terminals comply with the provisions of
Annex II.
Responsibilities of a master under the decree include the following:
ROYAL DECREE
9.28
— To be responsible at all times for the safe loading and unloading operations of
the bulk carrier under his command.
— Before any solid bulk cargo is loaded, to ensure that he has received the required
cargo information and, where required, a solid bulk cargo density declaration.
This information shall be contained in a form for required cargo information as
set out in Annex 5 of the BLU Code.
— To sign a loading plan with the representative of the terminal before starting
loading operations.
— To state in writing to the representative of the terminal after completion of
operations that the vessel has been loaded/unloaded according to the plan,
mentioning all modifications that have been agreed, which will have previously
been agreed with the terminal in a reviewed plan.
Information to be provided by the master to the terminal includes:
— The ship’s ETA off the port as early as possible. This advice shall be updated as
appropriate.
— At the time of the initial time of arrival, the name, call sign, IMO number, flag,
and port of registry.
— The loading or unloading plan, stating the quantity of cargo, stowage by
hatches, loading or unloading order, and the quantity to be loaded in each pour
or unloaded in each stage of the discharge.
— Arrival and proposed departure draughts.
— Time required for ballasting or de-ballasting.
13. Indian Mariner’s News Desk press release, “New Spanish regulation for safe loading/unloading of bulk
carriers”, October 6 2003: http://www.indianmariner.com/spain–bulk.htm.
304
REACTIONS
9.30
Prior to and during loading or unloading operations, the master has to ensure that:
— The loading or unloading of cargo and the discharge or intake of ballast water is
under the control of the ship’s officer in charge.
— The disposition of cargo and ballast water is monitored throughout the loading
or unloading process to ensure that the ship’s structure is not overstressed.
— The ship shall be kept upright or, if a list is required for operational reasons, that
the list shall be kept as small as possible.
— The ship remains securely moored, taking due account of local weather
conditions and forecasts.
— Sufficient officers and crew are retained on board to attend to the adjustment of
the mooring lines or for any normal or emergency situation, being aware of the
need of the crew to have sufficient rest periods to avoid fatigue.
— The terminal representative is aware of the cargo trimming requirements, which
shall be in accordance with the procedures of the IMO Code.
Non-compliance with the requirements of the decree are to be considered as an
administrative infraction of Law 27/1992 on Spanish Ports and Merchant Marine. The
sanction against the vessel will depend on the type of infringement. Together with the
decision to initiate sanctioning proceedings, the harbour master will usually adopt
detention of the vessel as a preventative measure to guarantee the payment of any
sanction. The only way to release the vessel will be by providing a guarantee.
This decree came into force on August 8 2003; however, the harmonized proceedings
and requirements rules will apply as from March 1 2004.
2 1 0 / 2 0 0 414
This decree was enacted on February 6 2004 and came into force on February 15
2004. It mainly applies to vessels of 300 gt or more carrying dangerous goods and/or
pollutants within Spanish waters. It also contains some general provisions for places of
refuge and criteria for establishing whether a vessel is eligible for refuge or shelter.
The following information summarizes the most relevant provisions of the decree:
Information to be provided to the Authorities: Twenty-four hours before entering a
Spanish port, the operator, master or agent of the vessel must provide the local port
authority (“entidad gestora del puerto”) with the information listed in Annex 1, Part 1 of
the decree:
ROYAL DECREE
—
—
—
—
—
—
vessel’s complete identification;
port of origin;
next port of call;
ETA and ETS;
number of persons on board;
copy of the SMC.
The carrier, operator, master or agent of a vessel sailing from a Spanish port and carrying
dangerous goods and/or pollutants must provide the harbour master (“capitanía
marítima”) at the port with the information listed in Annex 1, Parts 2 and 3:
14. The information on Royal Decrees 210/2004 and 253/2004 is based on Gard Loss Prevention Circular
No. 04–04 “New Spanish regulations—Navigation and the Environment: Two Royal Decrees enacted in
Spain.
305
9.29
9.30
9.30
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
— technical description of the cargo, using numbers and sections of the relevant
UN codes (UN codes, IMO Gas code, IMO Chemical code, IMDG and INF);
— quantity of cargo;
— if carried in consolidated units (except tanks), the identification number of these
units;
— details of the company able to provide more detailed information about the
cargo, where it needed.
The above information must also be provided when a vessel loads dangerous cargo15 at a
port in a non-EU country and intends to call at a Spanish port or anchor within Spanish
waters. The information must be provided to the relevant harbour master’s office in
Spain at the time of departure from the non-EU loading port.
The master of a vessel must immediately notify the port authority of any incident,
accident, casualty, technical breakdown, cargo shifting, spillage etc., which could
endanger the safety of navigation or affect the marine environment. This message must
contain the following information:
—
—
—
—
—
9.31
9.32
complete identification of the vessel;
port of origin and destination;
number of persons on board;
details of the casualty;
full details of the company able to provide more detailed information about the
cargo.
Tracking maritime traffic: The decree provides for the implementation of systems for
supplying routeing information as per EU Directive 2002/59/EC.
The Directorate General of Mercantile Marine will provide a system to facilitate the
use of the IMO Automatic Identification System (“AIS”) (SOLAS Chapter V, reg. 11).
In converging areas, established pursuant to SOLAS Chapter V, reg. 10, the
Directorate General of Mercantile Marine will adopt the reporting parameters and
specific rules established by the IMO for that particular area.
The Directorate General of Mercantile Marine will, through the harbour master’s
offices in each port, control and inspect the implementation of VDRs on board within
the time limits provided by Annex II, Part II of the Decree, in accordance with IMO
Resolution A.861(20).
Measures adopted in case of accidents at sea: In case of an accident, casualty, technical
breakdown, cargo shifting or spillage which compromises the safety of navigation or
affects the marine environment, the Directorate General of Mercantile Marine may
adopt the following measures:
— limit the movements of the vessel and compel it to follow a specific route;
— order the master to rectify the situation giving rise to the risks to the safety of
navigation or the environment;
— place personnel on board to evaluate the risks, assist the master and report to the
authorities;
— order the master to a port of refuge, to use the services of a pilot on board or
15. Dangerous goods for the purposes of the decree are the substances listed in the IMDG Code, IMO Gas
Code (Art. 19), IMO Chemical Code (Art. 17), INF Code, BC Code (App. B). Polluting substances are oil (as
defined in Annex I MARPOL), noxious liquid substances (Annex II MARPOL) and harmful substances
(Annex III MARPOL).
306
REACTIONS
9.36
direct the vessel to be towed. All expenses relating to such measures will be for
the account of the carrier or operator.
Places of refuge: The Directorate General of Mercantile Marine will provide a plan for
sheltering vessels in distress in Spanish waters. However, the Directorate General of
Mercantile Marine is not under any obligation to grant permission of access to a port of
refuge or sheltered area. If access is denied, the authorities must provide the reasons
behind such refusal. Life-saving will be carried out immediately by the authorities.
Protocols of action are to be provided for casualties such as fire, collision, grounding,
structural damage, explosion and spillage. Measures to deal with these types of
casualties must take into account the safety of life and the potential for damage to natural
resources and the environment. These protocols will also be consulted before granting
shelter to any vessel.
Access to a place of refuge may be conditional upon the posting of financial security,
which can only be provided through a bank located in Spain.
Sanctions: The decree provides for specific sanctions in case of non-compliance.
Where there is non-compliance with the decree, access to the port will be denied and the
maritime authority of the vessel’s flag state informed.
The general infractions and sanctions contained in the Spanish Ports Act 1992 (as
amended in 1997 and 2003) will apply.
253/2004
This decree, enacted on February 13 2004, comes into force on August 15 2004.
The decree adopts measures for the prevention of maritime pollution (including in
port areas) during loading, discharging and handling of fuel and bunkers.
The decree provides for the implementation of local safety plans to be adopted jointly
by the authorities and private companies in the area prior to February 2005.
As of February 2005, bunker suppliers will be required to provide their own cleaning
material or subcontract cleaning operations. They must also provide the harbour master
with a contingency plan, which includes plans for the prevention of pollution and
measures to be taken in case of spillage.
9.33
9.34
ROYAL DECREE
9.35
9G.2(ii) Other measures taken
POLLUTION FINES
16
Incidents involving alleged pollution are often categorized by the authorities as
administrative infringements. There are three different categories, each of which
provides for a different level of penalty. These are:
— minor infringement: fines up to c60,101;
— severe infringement: fines up to c601,010;
— very severe infringement: fines up to c3,005,060.
Such fines can be imposed on the vessel’s owner, manager, operator, master, or P&I
Club/liability insurer.
Vessels suspected of having caused pollution are routinely detained or arrested for the
purpose of obtaining security not just for the potential fine but also for clean-up costs.
16. Gard News 173, “The pain in Spain—Post Prestige, pollution response is now even tougher”,
February/April 2004.
307
9.36
9.36
THE ERIKA , THE PRESTIGE AND INTERNATIONAL LEGISLATION
Following changes made in the legal system in 1997, letters of undertaking from P&I
Clubs are not acceptable. The