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Dieselship, Unit #120, The Executive Zone, Shakti Towers, Next to Spencer Plaza, Mount Road, Anna Salai, Chennai 600002, INDIA

PORT STATE CONTROL

• Port Stare Control is a system of harmonized inspection-procedures designed to target substandard vessels with the main objective being their eventual elimination
• In March 1978 the grounding of the supertanker “Amoco Cadiz” off the coast of Brittany (France) resulted in a massive oil spill, causing a strong political and public outcry in Europe, calling for more stringent regulations with regard to the safety of shipping

Basic principle of PSC

• The prime responsibility for the compliance with the requirements laid down in the international maritime conventions lies with the ship-owner/operator; responsibility for ensuring such compliance remains with the flag State;
• The member- countries agree to inspect a given percentage of their estimated number of individual foreign merchant vessels entering their ports;
• As a general rule, ships will not be inspected within six months of a previous inspection in a MOU port, unless there are “clear grounds” for inspection (see “Selection of ships for inspections”);
• All possible efforts are made to avoid unduly detaining or delaying a vessel;
• Inspections are generally unannounced.

RELEVANT INSTRUMENTS

• International Convention on Load Lines 1996, as amended, its 1998 protocol, (LOADLINES 66/88);
• International Convention for the Safety of Life at Sea (SOLAS) 1974, its Protocol of 1978, as amended, and the Protocol of 1998, (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 Watch keeping for Seafarers 1978, as amended (STCW 78);
• Convention on the International Regulations for Preventing Collision at Sea 1972, as amended (COLREG 72);
• International Convention on Tonnage Measurement of Ships 1969 (TONNAGE 1969);
• Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147).
• MLC

“Clear grounds” for a more detailed inspection are:

• Vessels whose statutory certificates on the vessel’s construction or equipment, issued in accordance with the conventions, and the classification certificates have been issued by an organization which is not recognized by the authority;
• Ships that have deficiencies to be rectified in the next port;
• Ships that have deficiencies to be rectified within 14 days;
• Ships flying the flag of a non-Party to a relevant instrument;
• Ships that are in a category for which “expanded inspection” has been decided, i.e.: oil tankers older than 20 years, bulk carriers older than 12 years, gas and chemical carriers older than 10 years, and passenger ships;
• During examination of the certificates and documents inaccuracies have been revealed or the documents have not been properly kept updated;
• Indications that the crew members are unable to communicate with each other, or that the ship is unable to communicate with shore- based authorities;
• Evidence of cargo and other operations not being conducted safely or in accordance with IMO guidelines;
• 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 ship;
• The emissions of false alerts not followed by proper cancellation procedures;
• The absence of principal equipment or arrangements required by the conventions;
• Evidence from the PSCO’s general impression and observations that there are serious hull and structural deteriorations or deficiencies that may jeopardize the structural, watertight or weather tight integrity of the vessel;
• Excessively unsanitary conditions on board the vessel;
• Information or evidence that the master or crew is not familiar with essential shipboard operation relating to the safety of the vessel or the prevention of pollution, or that such operations have not been carried out.

Action codes

• Each deficiency is commonly given in a codified form in the inspection report, called “action code”.
• The action codes most frequently used are:
  • 10 deficiency rectified
  • 15 to be rectified at the next port of call;
  • 16 to be rectified within 14 days;
  • 17 master instructed to rectify deficiency before departure;
  • 30 grounds for detention;
  • 40 next port of call informed;
  • 50 flag State/ consul informed;
  • 70 classification society informed

REGIONAL PSC AGREEMENTS

• In several regions around the world, coastal countries have signed an agreement, “Memorandum of Understanding on Port State Control, often abridged “MOU on PSC”.
• At present there are the following Regional Agreement on PSC
  • Paris MOU for the European Region.
  • The Acuerdo de Viña del Mar (Latin America Agreement),
  • Tokyo MOU for the Asian Region signed in 1993,
  • Caribbean MOU for the Caribbean Region signed in 1996 in Barbados;
  • Mediterranean MOU for the Southern Mediterranean Region
  • Indian Ocean MOU signed in 1998 in Pretoria and comprising:
  • West and Central Africa MOU signed in Abuja (Nigeria).
  • Persian Gulf Region;
  • Black Sea Area,
  • In the United States PSC is carried out by US Coast Guard. Information exchange
    • Whether deficiencies are found or not, all details from each inspection report are entered in an advanced central computer database
    • This database can be accessed by PSC authorities, for consulting inspection files, inserting new inspection reports or using the electronic mail facility
    • A monthly list of detentions is published. This list contains, amongst others, the ship name, the owner, the Classification society and the port and date of detention

SHIP RISK PROFILE

• According to the Ship Risk Profile vessels will be classified as Low Risk Ships (LRS) and High Risk Ships (HRS). If a vessel is neither Low Risk nor High Risk it will be classified as a Standard Risk Ship (SRS).
• The Ship Risk Profile will be based on the following criteria, using details of inspections in the PMoU area in the last 3 years:
  • type of ship
  • age of ship
  • performance of the flag of the ship (including undertaking Voluntary IMO Member State Audit Scheme (VIMSAS)
  • performance of the recognised organisation(s)
  • performance of the company responsible for the ISM management
  • number of deficiencies
  • number of detentions
• HRS: between 5-6 months after the last inspection in the PMoU region
• SRS: between 10-12 months after the last inspection in the PMoU region
• LRS: between 24-36 months after the last inspection in the PMoU region
• The banning criteria for the first and second ban will be amended as follows:
  • If the ship flies a black listed flag it will be banned after more than 2 detentions in the last 36 months
  • if the ship flies a grey listed flag it will be banned after 2 or more detentions in the last 24 months.

• Any subsequent detention after the second banning will lead to a ban, irrespective of the flag.
• Moreover, a time period until the banning can be lifted will be introduced as follows:
  • 3 months after the first ban
  • 12 months after the second ban
  • 24 months after the third ban
  • permanent ban.

PORT STATE CONTROL- THE FUTURE

• The prospect of global port State control, with exchange of information and harmonization of procedures and training, has even more exciting implications
• As more and more statistics and data are gathered and exchanged by the different PSC Secretariats, that will result in a huge increase in knowledge about sub-standard shipping.
• The development of PSC gives us the possibility to change that culture and replace secrecy with transparency and openness.
• Although the efforts to improve flag State performance remain a top priority, effective regional agreements, including harmonized inspection and detention procedures, internationally approved qualifications of inspectors and transparency through increased information within regions and inter-regionally, will play an essential role for both flag and Port State responsibilities

CIC

• Concentrated inspection campaigns focus on specific areas where high levels of deficiencies have been encountered by PSCOs, or where new convention requirements have recently entered into force.
• Paris MoU Jointly with the Tokyo MoU a CIC on Crew Familiarisation for Enclosed Space Entry is scheduled from September to November, this year
• The Indian Ocean Memorandum of Understanding (IOMOU) will embark on a concentrated inspection campaign (CIC) on Cargo Securing Arrangements. The three-month campaign will start on September 1, 2016 and end on November 30, 2016.

Port State Jurisdiction

Port state jurisdiction is not covered by UNCLOS directly, but UNCLOS provisions confirm this practice, indicative of residual jurisdiction in relation to port state-control.A port state enjoys limited jurisdiction over a foreign-flagged vessel in its port. Foreign vessels calling at ports are subject to the coastal state’s criminal laws, civil laws, and regulations, yet the coastal state has discretion as to whether jurisdiction will be exercised in each instance. This means it is up to the coastal state to decide if, how, and when to exercise its jurisdiction (enforcement.)

Such types of jurisdictional enforcement powers are typically considered Port State Control (PSC). PSC allows port states to inspect and verify that foreign vessels are compliant with international standards for ship condition (including vessel source pollution), equipment, manning and operation on three grounds:
1. Own initiative (non-compliance with domestic or regional regulations)

2. At the request of the flag state or another coastal state (for infractions against their legislation)

3. After a third party complaint (specifically working conditions provided by crew, a trade union, etc.)

These enforcement powers are, of course, restricted to a reasonable extent for foreign sovereign immune vessels such as warships, vessels owned and operated by a sovereign foreign state entity, and vessels which may be cont rolled, owned, or operated by diplomatic missions.

Voluntary entry to port entitles a vessel to less freedoms (more port state jurisdiction) than if a vessel has entered port under force majeure or other conditions of distress such as severe weather, mechanical or structural integrity problems, etc. Such reasons for entering a port, without earlier intended plans, usually grant a vessel limited immunity from prosecution in matters specifically related to the coastal state’s jurisdiction (violations of coastal I port state’s civil laws, and domestic environmental regulations) as the vessel in distress could not take appropriate measures to avoid entering the waters I port and hence avoid non-compliance. In particular, they are generally considered exempt from non-malicious breaches of marine pollution laws and regulations. Under extreme circumstances and violations of international law (unacceptable pollution, suspected IUU Fishing, suspected piracy, etc) the port state may impose jurisdiction on the basis of preventative measures for the benefit of the international community (generally the same policies as if they encountered the vessel on the high seas).

However, if while the vessel is in port, and the vessel (including members of the crew) violate the laws of the coastal state they may be subject to the jurisdiction of the local authorities (i.e. committing crimes while in port, etc). This is a grey area in the law which is often debated and open to interpretation depending on specific circumstances. Generally, the vessel and crew which operate it are not given a ‘carteblanche’ to do as they please while in port and ashore in the coastal state. If the authorities are under the impression the vessel or members of the crew may currently be engaging in activities which violate the laws or regulations of t he coastal state they may increase their jurisdiction, including enforcement powers, and even prosecut ion. Again, this is a grey area in the law, and the coastal state has discretion to enforce or not enforce certain laws and regulations.

Additionally, under SOLAS vessels having conducted search and rescue missions at sea are permitted to disembark persons at the nearest available port. Jurisdiction of the port state should not, under standard circumstances, apply to the vessel engaged in such operation or the subjects of the rescue. Worthy of mention as well is the unique gap in UNCLOS legislation which does not flatten the regulations for vessel construction, manning, and equipment across the maritime zones of a coastal state besides being in line with GAIRS. This has opened a unique loophole for coastal states to apply more stringent requirements for ships in their internal waters, and subsequently ports, than in their territorial sea. This right does come with the responsibility, however, of providing appropriate publicity of the specific requirement and advising the IMO. Along with genuine use of this inconsistency for safety and environmental management, it also allows states to use such construction, manning, and equipment regulations for governing internal water I port access as a political tool under the guise of safety and I or pollution prevention jurisdiction.