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Policing IMO regulations – the role of Port State Control

Policing IMO regulations – the role of Port State Control
Malcolm Latarche 27 April 2018

At MEPC 72, the IMO agreed to demands from some industry bodies to make illegal the carriage of fuels incompatible with the impending 2020 cap on sulphur. Clearly the bodies concerned were worried about rogue owners undermining them unfairly. However, policing of the new rule will still fall to individual states and not the IMO. In fact, the IMO has no role at all in policing the regulations it makes and to give it that authority would be a major diplomatic undertaking that has no guarantee of success.

The prime policing role of IMO conventions and codes lies with the flag states and the usual year between the IMO making or changing a rule and its coming into force is to permit flag states to enact domestic legislation writing the rule into local law. The 1974 SOLAS Convention requires flag states to ensure that ships flagged by them comply with the minimum safety standards in the construction, equipment and operation of merchant ships.

The laws of the flag states may set penalties and sanctions for non-compliance with the IMO rules but historically enforcement has been lax even among the most diligent of maritime states. The reasons why is quite obvious in that ships mostly operate outside of the flag states’ jurisdictions and unless a contravention is reported to them, the flag state authorities will have no knowledge of any problem that cannot be detected during an annual inspection for issuing or renewing certificates.
Establishing Port State Control

The 1970s was a troubled time for shipping and shipowners with oil crises inflating the costs of operating ships to the point where safety standards were often neglected due to lack of funds. This was the era when the so-called flags of convenience became attractive allowing owners relief from taxation and a lower standard of enforcement on matters relating to maintenance, crew training and operating procedures.

In 1978, the IMO under pressure from member states, amended the SOLAS convention with the addition of a new Regulation titled Control. This new Regulation 19 with its six separate sub-clauses established the basis for Port State Control. The authority given to Port States was important because although any state can set the standards for ships allowed into its ports, the new regulation obliged flag states to recognise this right and the authority of port state authorities to detain ships considered unsafe.

With the new regulation in force, individual port states did begin to apply it but there was no grand aim or strategy in the way it was done and no obvious improvement in ship safety was immediately obvious. In 1982 a group of 14 European nations which had earlier been planning to work jointly to enforce the provisions of the ILO Convention on living and working conditions on board ships, decided instead to work together on port state control. This began with the issue of the ‘Paris Memorandum of Understanding on Port State Control’ in January of 1982 and continued with the coming into effect of the MoU in July of the same year.

It would be some time before the group of nations established the port state control infrastructure and began the systematic inspections of ships that has evolved today but it was a start and proved to be a basis which other nations would later follow. Since the group of 14 nations was comprised mostly of countries within the European Economic Community which would later become the EU in 1993, the Paris MoU can also be seen as one of the first steps in the EU’s ambition to be an influence in maritime regulation.

There was a secondary reason for the Paris MoU that is less often mentioned and that was to avoid distorting competition between ports. If any of the founding nations held back on enforcement, the effect would be for ships to prefer to call at ports there rather than in neighbouring states that applied stricter enforcement. This would have undermined the EEC’s policy on creating an area with common standards and enforcement.

Perhaps because other regions of the globe did not have a supra national authority as existed in Europe, it would be at least a decade before the Paris MoU was emulated. In 1992 a regional body was established in South and Central America and in 1993 the Tokyo MoU brought the regional concept to the Asian Pacific Area. There are now many more regional bodies extending PSC to most of the globe. Some nations with access to more than one area are members of multiple regional bodies. In the US, PSC is managed by the US Coast Guard and although there may be co-operation with other areas, the US is not a member of any regional PSC grouping.
How PSC works

PSC inspectors will make an examination of a vessel that may be quite short or more detailed if events prove necessary. They can list the deficiencies and require that they either be rectified before the vessel leaves the port or deferred for later action. In the event that the ship is considered too great a safety risk, it may be detained until all of the deficiencies are rectified.

Under the SOLAS regulation on control, port states should only make a detailed examination of a vessel if its SOLAS certificates (loadline, safety construction, safety equipment etc) are invalid or if it has clear grounds for believing the ship and its equipment are suspect. This could be by way of a pilot reporting his observations when bringing the ship to the port, a report from PSC authorities at a previous port or even by contact with the crew of the vessel. The result of any inspection and action taken must be reported to the flag state and if a detention occurs also to the IMO. The PSC authorities at the next port of call should also be informed.

Usually when a PSC inspection of a ship takes place, the first visit by the inspector is done at the expense of the PSC authorities. If however, some problems are found that require rectifying before the ship leaves port, then a subsequent visit to confirm that the required action has been taken may well be charged for. There have been accusations that this method can be abused by port states with trivial reasons being found to justify a second chargeable visit.

Few port states have sufficient inspectors to visit every ship calling in their ports so most PSC regional MoUs have established means of targeting vessels in an attempt to identify the most likely risks. Usually this involves assessing vessels by type, flag state, owner or manager, class society and the ship’s own PSC record. The data used in these assessments comes from the records kept by the regional MoUs. Much of the data is accessible to the public allowing potential charterers of ships and others to make decisions about the suitability of vessels for their needs.

There is an argument that targeting allows some unsafe vessels to escape scrutiny while perfectly good vessels are inspected more often than is necessary. Some support for this view comes from the fact that many high profile incidents that are investigated by maritime authorities involve ships that would have been rated as very low risk by the targeting policies of most MoUs.

Another method used by PSC bodies is the Concentrated Inspection Campaign or CIC. Usually these take place when a new regulation has been introduced in SOLAS or MARPOL. Under these CICs inspections will take place on as many ships affected by the regulation as possible regardless of the targeting policies. The most recent CIC was carried out last year by both the Paris and Tokyo MoUs and concentrated on the safety of navigation with particular regard to ECDIS.

CICs are usually announced well in advance and details are given about what inspectors will be looking for. In the CIC mentioned above, a list of 12 questions was used to determine that navigation equipment carried onboard complied with the relevant statutory certificates, the master and navigation officers were qualified and familiar with operation of bridge equipment, especially ECDIS, and that navigation equipment was properly maintained and functioning.

Detaining a ship is not usually done lightly because the shipowner has the right to ask his flag state to intervene and even to challenge the decision using the legal system of the detaining country. If a detention is found to be unjustified the shipowner will be eligible for compensation. Detention is not the ultimate sanction, a ship which is regularly detained or found wanting may be barred from entry to all ports in the regional MoU until such time as the MoU is satisfied that the ship no longer poses a risk to safety and the environment.

While shipowners may have some genuine grievances over the way individual inspections have been carried out, overall the consensus is that PSC has made a significant contribution to the improved safety record of shipping and a reduced casualty rate.