Introduction and Historical Back Ground of Port State Control
The deliberations at the United Nations conference on Trade and Development (UNCTAD) in the 1970s which called for a fairer terms of trade and development financing for under developed and developing countries influenced the adoption of the United Nations Convention on the Law of the Sea 1982, also known as UNCLOS111 . Prior to 1982, there have been the 1958 and 1960 treaties which were believed to be inadequate at the time of the conference. The new Treaty was passed with the aim of replacing the previous Treaties, establishing a comprehensive set of rules governing the ocean, facilitate international communication and promote peaceful uses of the seas and ocean, the equitable and efficient utilization of their resources, conservation of their living resources and the study protection and preservation of marine environment .
The Treaty gave every Nation Coastal or Land locked the right to register ships that will have a right to the use of their flags and be subject to their regulations and control with the condition of a genuine link between the state and the ship . Genuine link could be in form of nationality of the owner(s) of the ship or by ownership of a registered company in that Nation. Such Nations shall also issue to the ships documents to that effect; this is the concept of flag state. Under this Treaty, Ships registered with flag states are bound by the domestic laws of that state and the state is saddled with the responsibility of exercising its jurisdiction over such ships. This jurisdiction is inclusive of civil, criminal and social .
It is generally believed that most flag states have failed in the administration of their duties- to monitor ships flying their flag and insist on the obligations and requirements under international maritime conventions. The failure of flag states and that of other associated organisation such as the classification society and the insurers has lead to grievous maritime disasters , loss of life, property and pollution of the maritime environment not leaving economic loss out of the analysis. It is this and other antecedents’ failure such as the problem associated with flag of convenience that became a challenge for major maritime Nations. This situation arose as a negative economic reaction to effective flag state. Ships registered under this head (flag of convenience) enjoy the laxity in such ports of registration on international regulations matter. They rarely ever visit their home Nation during the whole of their service life, thus making the enforcement of international standard uneven . More overtly put by Aleka Sheppard in her book Modern Maritime Law and Risk Management
“The failure of some flag States to exercise effective control on the enforcement of international safety regulations, the slackness of some shipping companies to observe safety issues, the poor performance of some classification societies…coupled with the increased public interest…led to measures to counterbalance these deficiencies…”
These challenges became a source of concern for maritime Nations (mainly Coastal States) thus, for example, the European Maritime Nations in a bid to overcome these worrisome situations teamed into a group and developed the concept of a regional port state control to serve as a second defence line for the safety and security of their coast . This move produced the European Memorandum of Understanding popularly known as the Paris MOU. This idea has since been supported by the International Maritime Organisation (IMO), the United Nations agency responsible for the regulation and support of International Maritime activities including development of Laws, Treaties, Conventions, Regulations and Codes. It has further lead to the establishment of 8 (eight ) other MOU’s which includes Latin America MOU, Asia- Pacific MOU, Caribbean MOU, Indian Ocean MOU, Mediterranean MOU, Abuja MOU for West and Central Africa, Black Sea MOU and Riyadh MOU for the Gulf Region. The United States of America is not a member of any MOU but has the United State Coast Guide (USCG) which carries out Port State Control activities in accordance with the US Code of Federal Regulations and other International Conventions.
The ultimate responsibility for implementing conventions lies with the flag state; while sovereign and other self governing states have the right to control any activity within their own borders including those of visiting ships. The control by these sovereign and self governing states over foreign flagged ships in their ports, verifying compliance with the requirement of the international marine conventions on the basis of the above philosophy is called port state control . This control is authorised by the provisions of certain International Laws, Conventions, Protocols, Regulations, Codes, treaties and are exercised through inspections as specified under these Laws amongst which are Regulation 19, Chapter 1 and Regulation 4, Chapter xi of The International Convention for the Safety of Life at Sea (SOLAS 74) 1974, and its protocol of 1978, Article 4 - 7 and 10, Regulation 8A+ of Annex 1, Regulation 15+ of Annex 11, Regulation 8+ of Annex 111 and Regulation 8+ of Annex v of The International convention for the Prevention of Pollution from Ships (MARPOL 73/78) 1973 and its protocol of 1978, Article 10 of The International Convention on Standards of Training, Certificating and Watch Keeping of Seafarers 1978 (STCW 78) and Article 20 and 21 of The International Convention on Load Lines 1966 (Load Line 66). Others include the Convention on the International Regulations for Preventing Collision at Sea 1972 (COLREG 72), International Convention on Tonnage Measurement of Ships 1969 (TONNAGE 69), Merchant Shipping (Minimum Standards) Convention 1976 (ILO convention No 147), IMO Resolution A797 (19) on procedure for port state control, International Maritime Dangerous goods Code, ILO Publication ‘Inspection of Labour Conditions on Board Ship Guidelines for Procedure and European Union Directives on Port State Control .
Maritime safety and security regulations affects every aspect of marine activities including the marine environment, life at sea, the working conditions of the seafarers, piracy, terrorism and the physical and working structure of the ship. These various Laws and Conventions are geared towards the regulation of all marine concerns. Since most of the rules of port state in the various conventions are similar, the legal regimes to be investigated will be limited to three to avoid repetition.
The International convention for the Prevention of Pollution from Ships (MARPOL 73/78) 1973 and its protocol of 1978 is geared towards the safety of the marine environment which is one of the aims of IMO in its safety and security regime. The Convention encourages Nations to preserve, protect, maximise, reduce and control pollution of the maritime environment from ships flying their flags or foreign ships operating within their jurisdiction from operational or accidental cause . The convention uses inspection and certification method to achieve its aims. Relevant to Port State Control are Articles 5 and 6 of the convention which makes ships subject to inspection from appointed or authorised port state officers of party states where they visit or of their own home port if their home ports are party states for the purpose of verifying whether they have discharged any harmful substance in violation of the provisions of the convention and its amendments.
The convention sets standards and procedure for port state control which must be obeyed by the ships. Monetary sanctions may be imposed save wilful and serious discharge in violation of the convention occurs in the territorial water of the affected state. Whatever decision the port state takes on the ship, the flag state must be informed for appropriate action. In addition to the power of the port state under the convention is a right to investigate and initiate proceedings for discharge violations wherever they have taken place, be it the internal territorial seas and Exclusive Economic Zone of any other state although this may only be done by a request from such state or the flag state. However, both the coastal and flag state have a right of pre emption and once this is invoked, the port state suspends all investigations and proceedings; the state taken over investigation and proceedings must continue the proceedings else loses its right to pre emption subsequently.
The stability of ships on water is as important as the safety of the maritime environment for there to be any successful voyage. The stability of the ship on water can seriously be affected by over loading the ship which may cause the cargo to shift in the cause of the voyage resulting in serious loss of property even life; thus the evolution of this practice that ships indicate how low they may safely rest on the water . The convention is concerned with the over loading and material alteration of a ship that makes it unfit and unsafe to withstand the ordinary peril of the sea. Most merchant ships today are covered under The International Load Line Convention 1966 (LoadLine66) and its amendments which contains detailed regulations on the assignment of the freeboard and the specific limitation to which different types of ships may be loaded as ships may either be loaded to a greater or lesser degree depending on the zone and season, as potential hazards varies too.
Accordingly, the main purpose of the convention is to make sure international voyage are loaded to a limit that ascertains safety of life and property in a uniformed manner. Article 20 of the convention makes ships covered by it subject to port state control and Article 21 authorises port state control to board foreign ships to check the validity of the ships certificate and the position of the load line marks, to verify that the ship is not over loaded and that the ship has not been materially altered to make it unsafe. The port state is authorised also to take actions that ensures ships do not sail until they can do so without causing danger to themselves or persons on board them .
The International Convention for the Safety of Life at Sea (SOLAS 74) 1974 in its successive form has been regarded generally as the most important international treaties on the safety of life of merchant ships . Its main aim is to specify minimum standards for the construction, equipment and operation of ships compatibility with their safety. In doing this, the convention provides that contracting governments should inspect ships of other contracting states if there are clear grounds for believing that the ships and its equipments do not comply with the requirements of the convention. Regulation 19 Chapter 1 and Regulation 4 Chapter ix are material to port state control. While chapter 1 provides generally for the survey of various types of ships and significant documentation of them to ensure they meet the requirement of the convention and the control of ships in ports of other states, SOLAS adopted the International Security Management (ISM) Code 1994 and incorporated it into chapter ix with the aim of imposing a risk management regime upon the ship owners and managers through a Safety Management System (SMS) since lack of risk management was identified as the Achilles’ heel of port state control. This Code has changed the structure and focus of marine security and safety from being State and Government sole responsibility to incorporate the ship owners and managers; this has been an overdue concept and the final arrival is very welcomed. Unlike other Conventions and Laws, the ISM Code is non prescriptive, but requires ship owners and managers to develop for their ship a safety management system which will help them manage their ships in a safe and fit manner as required by other Conventions.
Although all the conventions and Laws are directed towards different aspect of maritime security and safety, they all have a common pattern for enforcement under the port state control which is the inspection of the various certificates relating to the numerous aspects of safety and security and if need be an inspection of the ship which may sometimes lead to the detention of the ship.
Although the maritime industry has other regulators and auxiliary organisations aiding its successful operations, only the flag state as the primary operator and regulator is being held and criticised for the failure of maritime safety and security. The Classification Society, Insurance Company, Shipowner, Charterer, Protection and Indemnity Clubs are other organisations which owe responsibility no matter how small to the maritime industry. Under the current safety and security regime, efforts have been made by every organisation to restore sanity to the industry.
Classification society play very important role in the maritime safety net. They were established in 1968 when marine insurers started demanding an independent inspection of the hull and equipment of a ship requiring insurance cover . It services are required by all stake holders in the industry save for the cargo owner who does not have a direct relationship with it. The ship owners, insurance companies and the flag state that do not have the finances or administrative capacity to carry out its function relies on classification societies to carry out survey of ships on their behalf. Also, ship builders rely on their technology for ship designs hence, most of the merchant ships where built to their specification. These importances have earned it recognition with international conventions such as SOLAS and LOAD LINE.
The international association of classification societies which has a consultative status within the IMO develops rules and guidelines called code of ethics and a system certification scheme which its members are guided by for the maintenance of a uniformed standard. However, not all classification society are members of this association and it is believed that the non members are those favourable to the lax flag states and compromised shipowners in the violation of international and domestic rules and standards as regards marine safety and security. The aim of the society with regards to port state control according to the code is to verify that the structure, strength and integrity of the ship’s hull; and its appendages are reliable and functioning in order to maintain essential services on board for the benefit of all stake holders. It achieves this by using its developed rules to verify compliance with international standards or domestic statutory regulation. Thus, the industry in general relies on their activities and judgements.
However, the society (IACS) has disclaimed the use of its issued certificate as a warranty of safety, fitness for purpose or seaworthiness of the ship; it rather requires that
“it should be seen as an attestation of the ships compliance with the developed and published rules issued by the society”.
Its ratio is that the decision to survey a ship and keep it in a standard and worthy state is voluntary of the ship owner and not the society. In essence, the society is not a guarantor of safety at sea or seaworthiness as they are not in charge of the manning, operation or maintenance of the ship between its periodic surveys.
This disclaimer is unfounded as the reason given does not flow from the disclaimer. It cannot possibly be argued that a society or an association who prescribes a regulation of such impotence should deny reliability on such regulation for the sole purpose of denying future liability. This disclaimer has raised international curiosity as to the true purpose of the society and in turn has attracted a lot of law suit from owners and third party interest of ships which failed after a survey by the society and as expected different decisions were reached by the Judges. In the American case of “the Sundancer” , per G. C. Pratt J. it was held that the purpose of classification certificate is not to guarantee safety, but merely to allow “the sundancer” take advantage of the insurance rate available to a classified ship. However, in the later case of “Nicholas H” the court per Lord Steyn held that the society is to promote safety of life and property at sea in public interest. However, presently, there is no uniformity as to the purpose of the society which makes accountability from its member almost impossible and renders its implementation a futility especially for the commercial ship owner. However, classification is required by most insurers before insurance policy are being granted thus, this may be one good reason for classifying ships.
As important as insurance is to shipping, some ship owners will not insurer their ship in extreme economic situation. These classes of ships are suspected of been without most or any valid certificate and are prime target for port state control inspection . The insurer is in a unique position in the maritime industry as it can influence decision made by any of its sectors as well as put pressure on the ship owners to promote quality shipping and to marginalise the operation of substandard ships. The majority of ship owners are open to influence by adjustment of the conditions of insurance cover and depending on the type of cover the insurer will be interested in the ships management. Previously, this demand was thought to be impossible but with the introduction of the ISM Code its impossibility has become a thing of the past. Thus, some insurers request the ISM Code certificate as a condition for compliance .
Usually, the conditions imposed by the insurers are closely related to the actual risk insured against. Insurers will not impose extreme conditions due to the competitive nature of the business. That notwithstanding, some have more business weight than others and are able to influence practice and management within the industry. Leading in this categories are the protection and indemnity clubs whose members are both insurers and insured. Hence, they have taken the lead on issues which directly influence safety standards and advising members of the need to take reasonable steps to avoid data recognition problems in electronic systems. Although the insurers are in commercial business, they have a shared interest in removing substandard ships and their operations from the industry, both to improve safety and provide a level playing field for responsible owners.
The eradication of substandard shipping is the responsibility and for the benefit of all stake holders in the industry the shipowners not excluded . Been that shipowner have the primary responsibility to maintain the ship and ensure they are in compliance with all regulations international and domestic, the competitive nature of the business should not be an excuse to compromise standards. Unfortunately, this is not so as in a bid to maximise profit, the shipowners cut cost to the detriment of lives and property at sea, even the environment.
With the introduction of port state control especially the adoption of the ISM Code which has introduced a safety management system for shipowners, changes has began to emerge as the shipowners are left with no other choice than detention and possible ban from a lucrative region on failing to oblige its ship with the provision of the International regulations. The decision of a region may also affect the inspection targeting rate for the ship at other port of call since the exchange of information system amongst operators through the IMO regulation is operative. It is also worthy of` note that the court of a port state do not interfere in port state detention thus, in the event of detention, the ship owner is again only left with a choice which is to put the ship in a seaworthy state according to the rules and regulations of a detaining port.
Presently, the effectiveness of international and domestic maritime regime is made practicable by the introduction of regional port state controls, which are operative via the different memoranda of understandings. Relevant to this essay are the European Memorandum of Understanding (Paris MOU) and West and Central Africa Memorandum of Understanding (Abuja MOU).