Textbook of Maritime Medicine

14.1      Port State Control

Introduction

The international shipping industry is responsible for the carriage of around 90% of world trade (Key facts, overview of international shipping industry, 2009). Shipping is the blood of the global economy. Without shipping, intercontinental trade, the bulk transport of raw materials, and the import/export of affordable food and manufactured goods would simply not be possible.

As at 1st January 2008, the world trading fleet was made up of 50,525 ships, with a combined tonnage of 728,225,000 gross tonnes. (Key facts, overview of international shipping industry 2009)

Because shipping is inherently international, it is vital that shipping is subject to uniform regulations on matters such as construction standards, navigational rules and standards of crew competence.

The shipping industry is principally regulated by the International Maritime Organization (IMO), which is the London based United Nations agency responsible for the safety of life at sea and the protection of the marine environment. The International Labour Organisation (ILO) is also responsible for the development of labour standards applicable to seafarers worldwide.

IMO has developed an extensive network of international conventions. These conventions are made applicable on board of merchant navy vessels by the flag state.

Ships obtain a nationality by registering in a register of origin. 

“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.” (art. 91 UNCLOS)

The consequence of this nationality is that the ship has to fly the national flag and obtains a homeport in the country of registration.

Since a merchant navy ship has no extra-territoriality the national legislation is applicable on board when the ship is in international waters.

“Ships shall sail under the flag of one State………………….. and shall be subject to its exclusive jurisdiction on the high seas……………. “(art.92 UNCLOS)

This is essential to provide “law and order” in a place without international jurisdiction – “mare liberum – Grotius 1609”.

The nationality of a ship is an indispensable element of the international freedom of shipping and the free use of the seas.

The nationality of a ship is the basis of the inspection and the protection by the flag state. The principal responsibility for enforcing IMO regulations concerning ship safety and environmental protection rests with the flag states as stated in article 1 of the United Nations Convention on conditions for Registration of Ships (Genua 7 February 1986)

“For the purpose of ensuring or, as the case may be, strengthening the genuine link between a State and ships flying its flag, and in order to exercise effectively its jurisdiction and control over such ships with regard to identification and accountability of ship-owners and operators as well as with regard to administrative, technical, economic and social matters, a flag State shall apply the provisions contained in this Convention.”

Flag states enforce IMO requirements through inspections of ships conducted by a network of international surveyors.

Much of this work is delegated to "recognised organisations", often the classification societies

Flag state enforcement is supplemented by what is known as Port State Control, whereby officials in any country which a ship may visit can inspect foreign flag ships to ensure that they comply with international requirements. Port State Control officers have the power to detain foreign ships in port if they do not conform to international standards.

14.1.1               What is Port State Control?

The responsibility for ensuring that ships comply with the provisions of national and international rules rests upon the owners, masters and the flag States. Some flag States fail to fulfil their commitments contained in agreed international legal instruments and subsequently some ships are sailing in an unsafe condition, threatening the lives as well as the marine environment. Port State control is a system of harmonized inspection procedures designed to target sub-standards ships with the main objective being their eventual elimination. (Paris MoU - about us 2009)

Port State Control is the process by which a nation exercises authority over foreign ships when those ships are in waters subject to its jurisdiction. The right to do this is derived from both domestic and international law.

A nation may enact its own laws, imposing requirements on foreign ships trading in its waters. Nations which are party to certain international conventions are empowered to verify that ships of other nations operating in their waters comply with the obligations set out in those conventions (Carrie Greenway 1998) - Port State Control – A guide for members)

The “Memorandum of understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the marine Environment “ (MoU 1982) provides in a co-ordinated check system on the conditions imposed by the most important international conventions (Load line convention 1966/88, SOLAS, MARPOL 73/78, STCW, Collision Rules, ) (Somers E. 2004)  

The final objective is to increase maritime safety and the protection of the marine environment and to improve living and working conditions on board ships.

It is important that the MoU is an agreement between maritime administrations and not governments. This detaches the memorandum of all political responsabilities and consequences.

14.1.2               Paris Memorandum of Understanding

The origins of port state control in Europe lie in the memorandum of understanding between eight North Sea States signed in Hague in 1978.

This agreement dealt mainly with enforcement of shipboard living and working conditions, as required by ILO Convention no. 147. However, just as the Memorandum was about to come into effect, in March 1978, a massive oil spill occurred off the coast of Brittany (France), as a result of the grounding of the super tanker ‘Amoco Cadiz’.

This incident caused a strong political and public outcry in Europe for far more stringent regulations with regard to the safety of shipping.

This pressure resulted in a more comprehensive memorandum which covered

• Safety of life at sea.
• Prevention of pollution by ships.
• Living and working conditions on board ships.

Subsequently, a new, effective instrument known as the Paris Memorandum of Understanding on Port State Control was adopted in January 1982 and was, initially, signed by fourteen European countries. It entered into operation on 1 July 1982. (Oya Özçayı  Z. 2001)

Since that date, the Paris Memorandum has been amended several times to accommodate new safety and marine environmental requirements stemming from the IMO as well as other important developments such as the various EU Directives which address marine safety.

The Paris MoU consists of 27 participating maritime administrations and covers the waters of the European coastal States and the North Atlantic basin from Canada to Europe, as can be seen on figure 1.

Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovenia, Spain, Sweden and United Kingdom.

Figure 14.1: Paris MoU - The role of port state control - Carin Droppers

14.1.3              Regional MoUs

At present there are eight regional agreements on port state control and these have a total of 123 member states. (see figure 2)

These regional agreements are:

1) The Paris Memorandum of Understanding on Port State Control 1982 (Paris MoU)

2) The Acuerdo De Viña del Mar Agreement on Port State Control 1992 (Latin American Agreement)

3) The Memorandum of Understanding on Port State Control in the Asia-Pacific Region 1993 (Tokyo MoU)

4) The Memorandum of Understanding on Port State Control in the Caribbean Region 1996 (Caribbean MoU)

5) The Memorandum of Understanding on Port State Control in the Mediterranean Region 1997 (Mediterranean MoU)

6) The Memorandum of Understanding on Port State Control For the Indian Ocean Region 1998 (Indian Ocean MoU)

7) The Memorandum of Understanding on Port State Control for the West and Central Africa Region 1999 (Abuja MoU)

8) The Memorandum of Understanding on Port State Control in the Black Sea Region 2000 (Black Sea MoU)

Figure 14.2: Memorandum of understanding - ulh.ans.hive.no/SAFETY-by-Group-5-b-Autumn-2005.ppt

The USCG, though not a signatory to any of the MoUs, carries out port State control for compliance with the US Code of Federal Regulations and other International Maritime Conventions.

The intention of port state control is not to enforce on foreign merchant shipping any requirement which goes beyond international convention requirements. These conventions are called ‘relevant’ instruments in the Memorandum and are:

• International Convention on Load Lines 1966, as amended, and its 1988 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 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 Watch keeping 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 Measurements of Ships 1969 (TONNAGE 1969)
• Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention 147)

14.1.4               Basic Principles

Under the Paris MoU, Member States have agreed to inspect 25% of the estimated number of individual foreign merchant ships which enter their ports during a 12 month period. This percentage - as well as the relevant instruments - are different in other MoU’s. It is very important that these inspections do not cause any economical disadvantage and all possible efforts are made to avoid unnecessary delay of the ship. The inspections are unannounced. In general ships will not be inspected within six months of a previous inspection in a MoU port, unless there are “clear grounds” for inspection.

14.1.5                No more Favourable Treatment Principle

In applying a relevant instrument, the authorities will ensure that no more favourable treatment is given to ships entitled to fly the flag of a state which is not a party to that Convention.

In such a case ships will be subjected to a detailed inspection and the port inspectors will follow the same guidelines as if the flag state was a party to the Convention.

14.1.6              Inspection Efforts by Paris MoU

The number of individual ships inspected in the Paris MoU regio is   increasing yearly and the overall inspection effort, that is the ratio of the number of inspections to the number of individual ship calls in Members’ ports was 30.3% in 2007

All member States reach the 25% inspection commitment of the

Memorandum. The individual efforts of Paris MoU members are published in the “Blue Book”. (Paris MoU – Annual report 2007)

14.1.7             Ships Targeting

Every day a number of ships will be selected for a port State control inspection throughout the region. To facilitate such selection, the central computer database, known as ‘SIRENAC’ is consulted by port state control officers for data on ships particulars and for the reports of previous inspections carried out within the Paris MoU region. If a ship has been inspected within the Paris MoU region during the previous six months and, on that occasion, was found to comply, the ship will in principle be exempted from further inspection, unless there are clear grounds to warrant further investigation.
 
In selecting ships for inspection the Paris MoU Authorities will give priority to (Paris MoU – Targeting);

• Ships visiting the region for the first time in a year
• Ships flying the flag of a State from the black list
• Ships with previous deficiencies;
• Ships which have been reported by pilots or port authorities as having deficiencies;
• Ships whose statutory certificates were not issued by a recognised organisation or class society
• Ships carrying dangerous or polluting goods, which have failed to report all relevant information concerning the ship’s particulars, the ship’s movements and the dangerous or polluting goods being carried to the competent authority of the port - and coastal state;
• Ships which are in a category for which expanded inspection has been decided.
• Ships which have been suspended from their class for safety reasons in the course of the preceding six months.

14.1.8            Initial Inspection

Every selected ship has to pass at least an initial inspection. This includes a check of the relevant certification and documentation of the ship and its crew, as well as a check of the overall condition of the ship including the bridge, the accommodation, the main deck and the engine room. A „paper check“ alone is not sufficient.
If “clear grounds” are assessed, as defined in the Paris MoU, a more detailed inspection will be carried out.

14.1.9            Clear Grounds – Overriding Priority

Clear grounds for a more detailed inspection are, amongst others (Paris MoU – Port State Control Inspection procedures):

• Evidence of operational shortcomings revealed during port State control procedures in accordance with SOLAS 74/78/88, MARPOL 73/78 or STCW 78;
• Evidence of cargo operations or other procedures 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 fire or abandon ship drills, 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.
• 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, unless this complaint is clearly deemed to be unfounded;
• Other indications of serious deficiencies.

Furthermore, control on compliance with on board operational requirements may be included in the control procedures, particularly if the port state control officer has reason to believe that the crew demonstrates insufficient proficiency in that area.

In addition there are requirements for expanded inspections for bulk carriers and tankers above a certain age and for passenger ships.
With regard to complaints received from masters or crew members the port State control authority receiving such complaint has the obligation not to disclose the source of information. In other words masters or crew members will not face risk of reprisal.

14.1.10          Deficiencies, Detentions and Rectifications

When deficiencies are found during the inspection, the nature of the deficiencies and the corresponding action taken are filled in on the inspection report.
In principle, all deficiencies must be rectified before departure of the ship.
The following are the main criteria for the detention of a ship (Paris MoU – detentions):

• A ship which is unsafe to proceed to sea will be detained upon the first inspection, irrespective of the time the ship is scheduled to stay in port;
• The deficiencies on a ship are so serious that they will have to be rectified before the ship sails.

In case of detention the flag State and the owner or operator will be notified as soon as possible.
If deficiencies cannot be remedied in the port of inspection, the maritime authority may allow the ship to proceed to another port, subject to any appropriate conditions determined by the maritime authority of the port of departure, with a view to ensuring that the ship can so proceed without unreasonable danger to safety, health or the environment. In this case a follow-up inspection will normally be carried out in this respective port.
The owner or the operator of a ship has a right of appeal against a detention decision taken by the port state authority. An appeal will not however result in the detention being immediately lifted.
 
On the conclusion of an inspection, the master of the ship will be provided with a document, which will indicate the results of the inspection and details of any action required to be taken.

14.1.11        Banning of Ships

Certain ships will be banned from the region if they jumped detention, failed to produce valid ISM certificates or did not call at the indicated repair yards.

Gas and chemical tankers, bulk carriers, oil tankers and passenger flying the flag of a state appearing on the Black List will be banned when they collected 3 detentions within the preceding 24 month period. For the same  group of ships flying a flag considered as “very high risk” or “high risk” on the black list 2 detentions within preceding 36 months will be sufficient to be banned. The refusal of access will be applicable immediately after leaving port.

The list of banned ships is published on the website of Paris MoU.

14.1.12        SIRENAC Operational Database

The results of each inspection are recorded in the central database, which is located in Saint Malo, France.

The Sirenac database is used as an operational database to store data regarding the targeting of ships, the collection of inspection data and the exchange of information within the Paris MoU. The collected data is also used for statistical purposes and the publication of monthly and/or yearly reports.

14.1.13        Does the Port State Control System pay off?

The Paris MoU annual report teaches us that the numberof Port State Control inspection efforts are increasing. We also note that the number of recorded deficiencies is steadily growing. This is not alarming but a natural consequence of the increased number of inspections.

The positive news is that the number of detentions is decreasing. This means that more ships satisfy the minimum standards and that the flags of convenience are slowly but surly losing ground.

14.1.14        Major Deficiencies over the last Years
 (Paris MoU – annual report)     

An increase in deficiencies is seen in all major categories and in ISM, SOLAS and certification categories in particular. Ships older than 15 years

show substantially more deficiencies than ships of less than 5 years.

Safety remains THE weak point. Deficiencies in vital safety areas

such as life saving appliances, fire fighting equipment, alarm signals, structural safety, radio communication and navigation accounted for about 44% of the total.

Other sensitive areas are ship – and cargo operations, structural and stability shortcomings and working and living conditions responsible for respectively 13%, 12.8% and 11.2% of the non-conformities.

When we look at the ship types we see that general dry cargo ships and reefers are situated very high on the detention list while oil and chemical carriers pose the least problems.   

For more details we can recommend the annual report  http://www.parismou.org/upload/anrep.

14.1.15        The Medical Aspects of Port State Control
 (Janssens, 2009 &  www.ILO.org & Ludwiczak, 2006)

The “medical” inspection of ships by the port state control officer is based on 2 legislations, the Memorandum of Understanding (MoU) and the ILO convention No 147.

The MoU has 3 goals. Besides the improvement of the safety of life at sea and the prevention of the pollution by ships , the amelioration of the working and living conditions on board of ships is mentioned as a third objective.

The ILO convention is more specific and prescribes a set of standards relating to the minimum age and the medical examination of seafarers, the prevention of accidents, social security, shipboard conditions of employment and living arrangements to be observed in merchant shipping registered under any signatory flag state. ILO covers also the officer’s STCW certificates of competence.

Any port state control inspection starts with a verification of the documentary state of the ship. These documents include, amongst others, the certificates of medical fitness of the crew, vaccination lists, de-ratting certificate and the certificate of yearly inspection of the medicine and medical equipment.

When the ship passes the documentary test the port state control officer conducts a general inspection of several areas on board to verify that the overall condition of the ship (including hygienic conditions) complies with what is required by the various conventions.

Special attention is given to the condition and use of the shipboard hospital, state and settings of the refrigerators and deep freezers, the hygienic condition of the galley and the condition of the sanitary provisions.

All deficiencies regarding conditions on board will be checked thoroughly and action will be taken as deemed necessary by the port state control officer. If necessary, the ship will be detained until appropriate corrective action is taken.

At this moment ILO inspections are problematic because the ILO tool is outdated and consists out of too many incoherent instruments that do not reflect the current working & living conditions on board of ships.

ILO is facing important improvements through the maritime labour convention 2006. (ratification expected by 2011)

All ILO maritime conventions will be grouped into a single “super-convention”

The inspection of ships will be enhanced with the introduction of a “maritime labour certificate” (MLC).

This MLC will be issued by the flag state or its recognised organisation. It verifies that labour conditions on board comply with national legislation, will have a validity of 5 years and identifies the “ship-owner” as responsible to satisfy the obligations of the Convention.

A second certificate, declaration of maritime labour compliance, covers the national law and the owners plan to implement 14 areas of standards regarding minimum age, medical certification, qualifications of seafarers, seafarer employment agreements, use of a recruitment and placement services, hours of work or rest, manning levels, accommodation, on board recreational facilities, food and catering, health and safety and accident prevention, on board medical care, on-board complaint procedures and the payment of wages.

Port state control is indicated as the first instrument to verify compliance with the 2006 convention.

Possession of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance is prima facie evidence of compliance

More detailed inspection are conducted if there are “clear grounds” or “reasonable grounds” that the ship has been re-flagged to avoid compliance or there are complaints alleging non-conformance.

Non-conformities can result in detention.

Up till now the “no more favourable treatment” principle was not applicable for ILO violations.

This will change. ILO states: "The practical consequence of the port state control provisions of Title 5, are that ships of all countries, irrespective of ratification, will be subject to inspection in any country that has ratified the Convention, and to possible detention if they do not meet the minimum standards of the Convention“

All ships, weather or not their flag state has signed the ILO convention, can be inspected by port state control inspectors and will be treated likewise

Literature – Port State Control

Written sources

De Baere, K. (2009), ship’s administration – unpublished course

Droppers C.(2002), The role of port state control

Greenway, Carrie (1998), Port State Control – A Guide for members

Ludwiczak, Joseph (2006), Maritime Labour Convention 2006

Oya Özçayı, Z. (2001), The impact of Caspian oil and gas development on Turkey and challenges facing the Turkish straits

Somers, E. (2004), Inleiding tot het internationaal zeerecht

Nippon Kaiji Kyokai (2008), Annual Report on Port State Control

Paris MoU (2007), Annual report

United Nation (2007), United Nations Convention on conditions for Registration of Ships

On line sources

Key facts, overview of the international shipping industry - www.marisec.org/shippingfacts

www.imo.org

www.medmou.org

Paris MoU – About us – www.parismou.org

Paris MoU – Port State Control Inspection procedures -  www.parismou.org

Paris MoU – Targeting – www.parismou.org

Paris MoU – Detentions – www.parismou.org

Guidelines for port State control officers carrying out

inspections under the Maritime Labour Convention, 2006 – www.ilo.org

Interviews

Janssens,P. - PSCO Antwerp – 09/06/2009