| Related sites for http://www.uct.ac.za/depts/shiplaw/portste.htm |
| Global_Entertainment_Insurance Provides information on their services, comprising the insurance for all kinds of media - film, broadcast, publishing, theatre and music included. The site also offers online applications and industr | | GMT_Studios Independent commercial production facility in Los Angeles with 6 sound stages, standing sets, lighting and grip equipment and an expendables store. | | Gordon_Productions_Video Broadcast production and distribution, as well as multimedia authoring. Includes work samples, rates, and list of clients. | | Gorgeous_Studio San Francisco studio lists its services and a free estimate. | | Gralfilm Film and TV production company in Croatia that also serves as a multimedia center for independent artists from various fields such as video, graphics, music, theater and literature. | | Greenlight_Film_&_Television Packaging, financing, production and distribution of feature and television projects. | | Grounded_4_Life_Productions Commercial video production, training, and multimedia. Includes samples, testimonials, and client list. | | call-centres_com Information site for the global call centre industry. | | Excess_Plumbing Buyers and sellers of surplus plumbing materials. | | Fortuna_Enterprises Wholesale lots of various items. | | HJ_Liquidators HJ Liquidators stocks bulk retail items. | | J&A_Liquidators Supplier of all your Electronics,Cell Phones,and General Merchandise. If you don't see what you want,we can probably get it for you. | | J_G__Resources Buyer and seller of excess assets, specializing in asset management for remodeling projects. | | 1st_Choice_Surplus_Merchandise Surplus merchandise sales of department store, office supply, and hardware store loads. | | Banzai_Sushi Offers frozen sushi products worldwide to distributors, retailers, and food service providers. Company profile and product details. | | Caribbean_Food_Delights Offers Jamaican-style beef patties and other meats. | | Fuqing_Longyu_Foodstuffs_Development Manufacturer and exporter of frozen eels, sausages, hams, shrimp balls, mussels, and oysters. | | Maid-Rite_Steak_Company Manufacturers of frozen meat products. | | Maxi Canadian supplier of processed chicken products to customers in the United States, Canada and Mexico. Located in Montreal. | | Seiko_Marine_Products_Sdn_Bhd Manufactures frozen seafood products and surimi based convenience products such as fish ball and fish roll. Located in Kapar. | | American_Fresh_Foods Supplies ground beef to grocery chains and foodservice operators. Company profile and product details. | | Beef_Products,_Inc_ Large manufacturer of boneless lean beef with a focus on ground beef products. Product and manufacturing details, food safety information, and contact links. | | Bell_Beef Family farm providing naturally raised beef. Calgary, Alberta, Canada. | | Brandt_Beef Producers of naturally raised beef without hormones or antibiotics. Company profile and product details. Located in Brawley, California, USA. | | Consolidated_Meat_Group Australian beef production and export. | | Creekstone_Farms Producers of hormone-free and antibiotic-free natural black angus beef products. Company profile and product details. | | Damar_Farms_Organic_Angus Raises and wholesale of USDA certified and processed 100% organic Angus beef. Sides, quarters and individual cuts delivered direct from the farm. USA. | | Dunedin Offers 100% grass fed and finished beef and free range veal. Hormone and antibiotic free. New Zealand. | | Elysian_Fields Grass-fed, organic livestock farm produces broiler chickens, pork, beef and egs. Includes a farm profile and product details. Located in Sloansville, New York, USA. | | Grand_Western_Brands Produces and delivers meat products, with comprehensive service, to fine restaurants in South Florida. | | Greater_Omaha_Packing_Company,_Inc_ Processors of beef products. Site includes facility photos, food safety information, and contact details. | | Grobbel\'s_Meat Specializing in whole muscle processed beef with emphasis on corned beef, roast beef, and pastrami. Product and contact information. | | Harris_Ranch_Beef Home of the restaurant reserve beef. Free contests, information and recipes. Offers information on beef food safety. | | Imperial_Wagyu_Beef Distributor of quality Wagyu beef to fine restaurants and consumers across the nation. | | Industrial_Comercial_San_Martín Offers Nicaraguan beef products. Details regarding the company and products are presented. | | Jack_Links Producer of beef jerky and kippered beef products. Company profile, jerky production information, and product offered. | | Le_Quebecois Producers of grain-fed veal. Company profile and product details. | | Los_Corrales Specializes in shredded dried beef and dried beef products. Company profile, recipes, and contact details. | | Meyer_Group_of_Agricultural_Companies Producers of skewered, steaks, ground, or tongue beef products, including Meyer Angus, which is hormone and antiobiotic-free. | | Mojo_Jerky Offers certified organic beef jerky. Company profile, and product details. |
|
port state control
FLAG, COASTAL & PORT STATE CONTROL
Closing the Net on Unseaworthy Ships
and their Unscrupulous Owners
This is a re-print of an article published in SEA CHANGES No
16 1994 at page 57, and is based on a talk given to the Admiralty
Institute of Tulane University in February, 1995.
The sea is its own master. It is frighteningly unforgiving and it
gives few second chances.
What follows must be seen in the image of the the immense power
of the sea ... for it is that power which dictates the criteria
which seafarers must apply in setting standards and norms for the
operation of ships.
The Problem
The grim toll of last winter at the Cape of Good Hope - 36
lives lost with the sinking of the bulk carrier APOLLO SEA;
another 24 with the sinking without trace of the IRON ANTONIS; a
VLCC and a bulk carrier very badly damaged at sea; and three
strandings, one of which resulted in the total loss of a crane
barge valued at over $80 million - has once again put into stark
relief the importance of the steps the international maritime
community is taking to achieve a more acceptable level of safety
at sea by the ships of all nations.
It is perhaps no coincidence that two of these casualties, the
APOLLO SEA and the SAN MARCO, were 17 and 21 years old
respectively. And it is little comfort for the dependents of the
APOLLO SEA crew, and the Cape Town community which faced the
worst oil pollution yet to occur on their beaches, to hear that
the APOLLO SEA was the 90th bulk carrier lost in the past 6
years.
Recent worldwide losses were not limited to cargo ships: the
ACHILLE LAURO, built in 1947, caught fire and sank last month in
the Indian Ocean - fortunately in calm seas with all but 4 of the
900 passengers and crew on board being rescued by other vessels.
1947? The ship, fully certified for carrying passengers on luxury
cruises, was close on 50 years old. So was the OCEANOS, which
sank in a bad storm off the South African coast in 1992.
Miraculously not a life was lost, due largely to the heroic
rescue of over 600 souls by SA Airforce helicopters in appalling
conditions.
Younger, but by all indications outdated in certain aspects of
her safety design was the ESTONIA, which sank in the Baltic with
dreadful loss of life in October last year. The OBO MARIKA 7 sunk
without trace in the South China Sea, there were ferry disasters
in the Philippines and Bangladesh ... the tragedy is a seemingly
endless chapter.
The Cape of Good Hope is particularly vulnerable as what could
euphemistically be called a "maritime blind corner" on
a busy searoute - although the SA experience is not altogether
out of line with that of other coastal states in areas of marine
traffic congestion. The English Channel, the Straits of Malacca,
the US gulf to name but a few, are faced with similar problems.
But the Cape has a sometimes catastrophic combination of a large
number of passing ships and stormy weather with very heavy swell
conditions - not to mention the so-called "freak waves"
for which the eastern SA seaboard is notorious. And by an
inexplicable legal fiction, its waters are nevertheless classed
as a permanent "Summer Zone" for loadline purposes -
entitling vessels to pass the South African seaboard even in mid-
winter in a laden condition generally only permitted during the
summer.
World ship losses continue to increase annually: For each of the
years 1992, 1993 and 1994, there have been close on 100 ships
lost at sea [These are the official statistics of the Institute
of London Underwriters: cf. the higher figures of the EC report
in February 1993 which gives annual losses of about 230 ships a
year. See Clarke: Port state control or substandard ships: who is
to blame? What is the cure? LMCLQ 1993]. In these and other
casualties, over 1 500 lives were lost. The economic loss of
these vessels and their cargoes is inestimable: The pollution
arising from the grounding of the EXXON VALDEZ, the most costly
marine mistake to date, has generated claims now topping $5
billion. And the loss of life is as appalling as it is
unnecessary and indefensible.
Yes, people do care - but often with decidedly misdirected
priorities. The greatest catalyst of public outcry is oil
pollution. The man in the street can come to terms with and is
outraged by the mess on his beach following a maritime casualty.
Oilstained penguins are tangible and visible. The loss of the
TORREY CANYON resulted in the deaths of an estimated 30 000
seabirds. The APOLLO SEA pollution involved the rescue of more
than 8 000 seabirds and befouled Cape Town's premier tourist
beaches. But the tragic loss of life which all too often
accompanies the pollution, is relegated to small print by much of
the media in its quest for the most newsworthy elements of a
marine disaster - and remains sadly invisible. The reality is
that any marine disaster, with or without loss of life or
pollution of whatever kind, is an unwelcome addition to already
dreadful statistics.
What is the maritime community doing about it?
What is the international maritime community doing about this
manifestly unacceptable and lamentable state of affairs? And what
can coastal authorities themselves do to help remedy a situation
which can have such a serious impact on their coastline and their
economies?
Perhaps one should recognise at the outset that the shipping
world has sat up and taken notice. We see that there are a number
of initiatives, driven from within the industry, by NGO's and
governments of coastal states, all designed to address the
malaise.
The most positive recent development yet was itself borne of
disaster: following the loss of the tanker BRAER and her cargo of
84 700 tonnes of crude oil off the Shetland Islands in
January 1993, the UK government appointed an Enquiry into the
prevention of pollution from merchant shipping. That the
commission saw its mandate in broader terms has been welcomed by
the shipping industry, and its report published in May 1994 as
"Safer Ships, Cleaner Seas" is a landmark document
which should be carefully studied by our maritime authorities.
The report deals fully with the state of the international
shipping industry and makes many recommendations, designed to
form the backbone of future maritime policy in Britain. The
Report endorses the enormous efforts of the International
Maritime Organisation (IMO) which is seeking uniformity and
cohesion in international efforts to pull shipping back from what
has been widely perceived as the brink of disaster. And it echoes
the "Ships of Shame" Report compiled by the Australian
maritime authorities after the KIRKI casualty.
All coastal states - especially those like SA with extensive and
particularly vulnerable coastlines - need to ask themselves if
their maritime authorities have enough muscle to flex, and if
they are making full use of those powers. There are two issues
here - the first being supervision and control of one's own
fleet, and the second being the regulation of traffic and
policing of foreign flagged ships which use one's waters.
Can the Law provide the tools for the job
To do the job, the coastal authorities need to rely upon two
tools: their own "domestic" law, and international law.
Domestic SA law consists of statutes passed by parliament (and
regulations promulgated under the authority of those statutes)
and the country's common law - comprising mainly decisions of the
courts and the writings of jurists.
But all states need also to rely upon a perhaps more significant
body of law to come to grips with the problem of the sub-standard
ship: the International Law of the Sea.
International law comprises treaties between states, often
expressed as Conventions to which states may voluntarily bind
themselves by ratification or accession, and international
customary law, a bit like the common law of an individual
country, and requiring widespread adherence by a significant
number of states.
The two systems - domestic law and international law - complement
each other, and to the extent that the SA is a party to any
international convention or treaty, its domestic laws should give
substantial effect to the international law contained in it.
Reliance on international law carries with it also a duty to
observe it.
International law is the source, for example, of the following
"safety conventions":
1. The Convention on the International Regulations for Preventing
Collisions at Sea (COLREGS), 1972
2. The International Convention for the Safety of Life at Sea,
1974 (SOLAS) with its protocol of 1978 and its 13 amendments
3. The International Convention on Load Lines, 1966 and its
protocol of 1988
4. The International Convention for the Prevention of Pollution
from Ships (MARPOL), 1973 with its protocol of 1978
5. The International Convention of Standards of Training,
Certification and Watchkeeping for Seafarers, (STCW), 1978
6. The International Convention on Civil Liability for Oil
Pollution Damage (CLC), 1969
7. The International Convention relating to Intervention on the
High Seas in cases of Oil Pollution (THE INTERVENTION
CONVENTION), 1969 (and its protocol relating to pollution by
substances other than oil)
8. The Salvage Convention, 1989
9. The International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage (THE
FUND CONVENTION), 1971
10. The Convention on Limitation of Liability for Maritime
Claims, 1976
11. UN Convention on the Conditions for the Registration of
Ships, 1986
These Conventions, and the use of their powers, operate to an
extent subject to the United Nations Convention on the Law of the
Sea, (UNCLOS), 1982 of which SA is a signatory, but which it has
yet to ratify. UNCLOS came into effect on 16 November 1994.
[It is interesting to note that the USA is not yet a signatory to
UNCLOS 1982. It was however a signatory to the 1958 Geneva
Conventions on the law of the Sea. And it would in all likelihood
give recognition to UNCLOS 1982 (minus the seabed provisions) as
being close to a compendium of current international maritime
customary law In fact President Reagan made such a formal
declaration in his statement of United States Ocean Policy when
claiming the USA's EEZ [see Schoenbaum 2-2; Burke International
Law of the Sea Introduction p. xxiii)].
Apart from the enactment of some of the safety conventions into
SA statute law, SA has a parcel of "stand-alone"
legislative measures and sources dealing with shipping and the
policing of its coastline:
Thus in SA there are:
* The Merchant Shipping Act, 1951 (which has as Schedules, the
conventions listed above)
* The Marine Traffic Act, 1981 and the regulations published in
terms of that Act
* The Prevention and Control of Pollution of the Sea by Oil Act,
1981 containing much of the CLC Convention and provisions from
the Intervention Convention.
* The Maritime Zones Act, 1994, which delimit the internal
waters, territorial sea (12 miles to seawrd of the baseline),
contiguous zone (24 miles to seward of the baseline) and EEZ and
continental shelf zones in accord with UNCLOS.
State power as a flag, coastal & port state control
These collections of international and domestic laws confer
significant powers and impose corresponding duties on all states
(in SA through the Shipping Directorate of the Department of
Transport) in their various capacities as a flag state authority,
a coastal state authority and a port state control authority.
Regulation of the marine environment must arise from balanced
exercise of the powers conferred in each of the above capacities.
The Flag State
In international customary maritime law, it is incumbent upon
any state which allows the registration of vessels under its flag
to effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying
its flag [UNCLOS Art 94]. 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, prevention of collisions. Specifically in relation
to the monitoring of condition of vessels on the flag, such
measures shall include those necessary to ensure that each ship
is appropriately surveyed as to condition, equipment and manning.
Art 94.5 then 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. The
obligation is repeated in relation to oil pollution in Art 217.
This is achieved in the main by the flag state issuing the
vessel's safety certificates indicating compliance with the main
international conventions, without which it is all but impossible
to trade the ship world-wide. And it is these certificates which
are the key to the port state control inspection system.
The UN Convention on the Conditions for Registration of Ships
believing that ... a flag state should have a competent and
adequate national maritime administration seeks to compel flag
states to ensure .. that ships flying the flag of such State
comply with its laws and regulations concerning registration of
ships and with applicable international rules and standards
concerning ... the safety of ships and persons on board and the
prevention of pollution of the marine environment. And further
that such ships are periodically surveyed by its authorised
surveyors in order to ensure compliance with applicable
international rules and standards. [Art 5.3]. Significantly, but
sadly largely unsuccessfully, the convention requires
identifiability and accountability from shipowners and managers.
A vain hope in today's world of one-ship owning companies:
The hard reality is that there is little identifiability and
almost no accountability where it is needed most - in relation to
the owners of sub-standard ships.
And flag states are not universally doing their duty to regulate
and police their own tonnage. That they cannot be expected to
have an inspectorate spread across the globe is accepted, but
flag states generally contract their surveying out to local
classification or non-exclusive marine surveyors. Many flag
states, and a few of the classification societies as well, could
do a much better job. And there is a potentially unhealthy
relationship between the classification societies, the registers
for which they survey and the shipowner: it is usually the
shipowner who indirectly at least pays the bill of the surveyor
who is to decree if a ship is seaworthy or not. Add to this the
practical difficulty: can one surveyor, however competent,
thoroughly inspect the vast hidden reaches of an aging OBO, under
pressure from owners and charterers and often at the risk of
being buried under under a relentless rising tide of bulk cargo
being disgorged into the very spaces he is trying to inspect? It
is the system that needs change. For the system often does not
give the surveyor a fair chance.
Lloyds Register and DNV, BV and the Polish Register have in
recent months faced (and hotly disputed) allegations that their
surveyors sell bogus safety certificates [see eg Lloyds List
November 23 1994].
The losses speak for themselves: Consider the five year average
from 1988-1992 when the highest percentage of total losses of
ships (ranging from 1,06% to 0,5% of the total tonnage on the
respective registers) were lost from the registers of Malta,
Turkey, Cyprus, South Korea, St Vincent & the Grenadines,
Vanuatu and Panama - all of which are expanding registers,
attracting more tonnage each year. And compare this to the world
average of 0,27%. There are clearly good and bad register states;
and bad registers attract the worst shipowners with the worst
ships.
The more unscrupulous convenience registers take on tonnage which
should not put to sea; they issue certificates riding on the back
of previous certificates without adequate or at times any
inspection; and, perhaps more seriously, most registers are too
quick to issue conditional reservations against class with
extensions to manifestly defective vessels, thereby allowing them
to put to sea again without repairs.
And the industry continues to hide its head in the sand about
ships long past the end of their safe natural working lives. One
reads frequent protestations from shipowners and surveyors that
old is not necessarily substandard [see eg a spokesperson for
Intertanko, Lloyds List Nov 29 1994]. Again the statistics speak
loud and clear: in the first six months of 1994, a full 92,2% of
losses involved ships aged 15 years or older. 1993's percentage
was 91,3%. The percentage is even more dramatic when one realises
that some 47% of the world's ships are 15 years old or more,
whereas 90% of the losses fell within this category (1993
figures). The oil majors continue to use the "oldest
VLCC's", with an average age of 14 years being revealed by
an Intertanko analysis of 689 charters published in August 1994.
All the top VLCC charterers, found the survey, were prepared to
use 20 year old vessels. The MD of Shell tankers had difficulty
explaining Shell's policy recently when trying (totally
unconvincingly) to justify on British TV last year the company
fixing the "KIRKI" which unceremoniously lost her bow
off the coast of Australia - immediately after being cleared by
the company's surveyors. The shipping industry must get real and
face the facts: it too often sacrifices safety to serve
economics.
Clearly not all old ships are bad ships. Lloyds List editor says
It is ridiculous to suggest that old ships are automatically
worse than newer vessels and that a charterer should be
castigated as environmentally irresponsible for the high average
age of the ships he is working.
Ships are not pots of yogurt, liable to cause serious harm if
used after a specified sell-by date.
Quality is nothing whatever to do with the age of a ship.
[Editorial August 18 1994]
But the editor speaks here of tankers - generally better
maintained vessels plying a trade with cargoes kinder to the
ships which carry them. Of other trades he writes
There are some disgusting wrecks afloat, which have been lurking
around in the Far East for years waiting for a demolition buyer,
which have been sold on and are now being prepared for, of all
things, iron ore voyages across the Pacific.
Forget the environmental sensitivity of employing old tankers.
It's men's lives at stake here.
Prophetic words indeed: A fortnight later the IRON ANTONIS,
another iron ore OBO, sank with another 24 more lives needlessly
lost.
As Fairplay's Editor points out:
Age and safety are inextricably entwined. The statistics are
the great leveller. They reflect what is happening as a rule, not
the exception. There are conscientious operators of
well-maintained old tonnage with outstanding loss records. But
they are not the rule. The disturbing fact is that, since 1989,
the proportion of older ships within the world fleet has been
growing steadily, and the proportion of older ships subject to
total loss is on the increase .....
[Fairplay Editorial 20 October 1994]
That the squeeze is being put on some of the worst offenders,
most being flag of convenience register states, is to be
welcomed. In the words of the Donaldson Report, they should be
rooted out, (though it is arguable that there remains a place for
certain so-called convenience registers which rigidly enforce
safety measures though offer fiscal advantage to already
hardpressed shipowners who might otherwise not survive were they
to be tied to their own national registers).
But it is high time also that consumer action be taken against
owners who continue to ply the seas with ships which should long
have been sent to the scrapyard (and play with the lives of their
crews in the process): and against shippers who procure tonnage
at bargain freight rates particularly for low value bulk cargoes;
against charterers who pay lower daily hire for what are little
more than deathtraps for the crews who sail them; and against
insurers who turn a blind eye and issue cover without inspection
in the knowledge that the ship insured is over the hill. The
industry should cast its vested interests aside and declare that
enough is enough. Shipping is, after all, in disrepute largely as
a result of its own lassitude.
And why do passengers book luxury cruises on vessels nearly 50
years old - regardless of how many "refits" they have
had?
The Coastal State
A state having a coastline is entitled under international law
to take certain limited steps to protect its own interests.
UNCLOS recognises four main zones of varying jurisdiction:
internal waters - bays ports and similar enclosed areas of the
sea; territorial waters - extending 12 miles to seaward of
defined "baselines" along the shore; a contiguous zone
- covering the territorial waters and a further 12 miles to
seaward; and the exclusive economic zone - extending to 200
miles. A state's powers range from full sovereign powers within
internal waters, to rights limited to the exploitation of natural
resources on and above the EEZ.
But there are limitations on the seemingly wide power of the
coastal state: first, Art 94.5 imposes an obligation on
inspecting authorities to conform to generally accepted
international regulations, procedures and practices. Second,
there must be no discrimination against any one state by another
[UNCLOS Art 227].
And third, the flag state must not violate one of the
cornerstones of international maritime law - the right of
merchant ships to innocent passage across the seas. All states
have the right of free passage of their ships through the high
seas, the continental shelf zone and the EEZ. A similar right is
enjoyed for the outer 12 miles of the contiguous zone. In the
territorial sea, the sovereignty of the shore state is subject to
the right of innocent passage by foreign ships: Coastal states
are required by UNCLOS Art 24 not to hamper the innocent passage
of foreign ships through the territorial sea.
Innocent passage is defined by UNCLOS as navigation through the
territorial sea whether or not actually entering internal waters
or calling at a roadstead or port facility. To be innocent a
ship's passage must not be prejudicial to the peace, good order
or security of the coastal State. Outlawed thus are inter alia
the threat or use of force, use of weapons, spying or propaganda
dissemination affecting the defence or security of the coastal
state, launching or landing any aircraft, loading or unloading of
anything which may contravene fiscal, immigration or sanitary
laws of the coastal State, wilful and serious pollution, fishing,
research and survey activities, and a catch-all of any other
activity not having a direct bearing on passage. Vessels engaged
in innocent passage may anchor and stop, but only if incidental
to ordinary navigation or beset by extraordinary circumstances.
But international law, through UNCLOS Art 21, allows states
specific powers to adopt laws and regulations in conformity with
international laws which limit the right of innocent passage
through the territorial sea (though by implication therefore not
beyond into the EEZ). They may thus regulate maritime traffic,
protect navigational aids cables and pipelines, conserve living
resources and protect the environment generally, prevent reduce
or control pollution, and prevent the infringement of customs,
fiscal, immigration or sanitary laws. States may not however
impose conditions relating to the design, construction, manning
or equipment of foreign ships unless they are giving effect to
internationally accepted international rules or standards. And
they must give due publicity to measures being taken by them to
enable foreign ships to comply.
And where a ship is to call at its ports, a state may in the
territorial sea take necessary steps to prevent any breach of the
conditions to which admission of those ships to internal waters
or her call to the port is subject.
As far as pollution is concerned, UNCLOS Art 211 sets out the
state's authority: in the exercise of their sovereignty within
their territorial sea coastal states may adopt laws and
regulations for the prevention, reduction and control of
pollution, provided they do not hamper innocent passage of
foreign vessels. They may include the EEZ in these measures,
provided they conform to and give effect to generally accepted
international rules and standards.
A coastal state needs to ensure that it does not reach beyond
internationally accepted norms of interference with foreign
vessels, both from a perspective of comity (what is done by one
state can be done to its own flag vessels by other countries) and
to remain within the bounds of reality and practicality. Stopping
a vessel en passage through territorial seas is a drastic and
potentially dangerous exercise.
[In the USA, the Coast Guard in December 1994 announced that it
would begin boarding potentially substandard vessels at sea buoys
rather than wait for them to enter port and thereby sustain
possible delays. [Lloyds List Dec 5 1994] It is doubtful whether
this could be construed as an interruption of innocent passage
because by stopping at the buoys (even if the buoys be outside
internal waters), and to the extent that such stop is not
incidental to navigation, the ship is no longer on voyage and her
passage is therefore no longer "innocent" (see below).
There is no question of the USCG boarding a vessel while under
way en voyage.
It may also be agruable that a substandard ship is violating its
rights of innocent passage by being prejudicial to the peace,
good order and security of the coastal state.]
In short, coastal state intervention is limited in scope, and
should be limited in use.
Port State Control
It is in the concept of port state control that the maritime
community worldwide has seen a possible solution to the problem
of the substandard ship. Not the solution, but rather one
of the more positive steps which can be taken - and necessary
because the prime obligation of the shipowner and his register
have been too often neglected.
The concept is not new: UNCLOS Art 25 empowered states whose
ports were used by vessels to take necessary steps to prevent any
breach of the conditions to which the call at its ports by such
vessels may be subject. Arts 216 and 218 enable a port state to
enforce international anti-dumping and anti-pollution measures.
And states are required by Art 219 to take administrative
measures to prevent errant vessels from sailing. Legitimacy for
port state control inspections may be found in these Articles of
UNCLOS because it is usual for there to be an oil pollution
threat, albeit only bunkers, from any unseaworthy ship. The only
limitation is that the steps taken be reasonable, public, and not
discriminatory.
It is axiomatic [say McDougall & Burke The Public Order of
the Oceans, 1987 para 156/7] that the coastal state has fully
comprehensive authority to prescribe policy regarding the use of
its ports and other areas of internal waters. It is ancient
authority which has much precedent in areas outside ship safety:
Enforcement of US law in its adjacent waters ... over which it
exercises dominion and sovereign power has its roots in
prohibition [See eg Cunard SS Co v. Mellon 262 US 119
(1922) and US v. Bevans 3 Wheat 336,390].
But most maritime authorities now have more modern, effective and
direct powers of port state control inspection: SOLAS, MARPOL,
the Loadline Convention, the Registration of Ships and the STCW
Convention all give powers (and duties) of inspection to ensure
compliance. And most states give themselves extensive powers in
relation to prevention of oil pollution.
South Africa
The SA Marine Traffic Act (sec 9) allows the SA Department of
Transport to require a ship master to give details of his ship
and cargo, produce all papers and documents relative to the ship
and to allow authorised person on board the ship to inspect the
ship, its equipment and cargo. It relies upon UNCLOS to detain
offending ships. The SA DoT surveyors have achieved an inspection
rate of about 5% of all vessels calling at SA ports - somewhat
higher if one considers bulk carriers alone. But they have an
uphill battle to face: there are 27 surveyors serving the SA
coasts, and they have to do a multiplicity of Merchant Shipping
Act related tasks concerning ships on our own register, small
vessels, certification of crew and pollution monitoring.
[See eg SA Shipping News Feb 1995 reporting a meeting between the
SA Master Mariners and the DoT. Saldanha inspects 26,5% and
Richards Bay 10% of bulk carriers 15 years old and older, but
inspections of other vessels are on the decline because of
manpower shortages and employent on other more urgent statutory
requirements - UK surveyors are reported to spend some 25% of
their time on port state control inspections)..]
The USA
The US Code (ibid) has empowered USCG to board and inspect
all vessels entering US ports to ensure that safety and pollution
standards are met. The Coastguard's powers are wide, and by all
accounts effective. Whilst reciprocity is allowed to vessels
certified by countries having inspection laws and standards
similar to those of the US, even those vessels are subject to
being checked to ensure that the condition of the vessel is as
stated in its current certificate of inspection. This is laudable
empowerment, but its effectiveness depends upon the extent to
which vessels are indeed inspected.
The USA embarked upon a rigorous policy of Port State Control
inspections with effect from May 1 1994: Boarding and inspection
procedures are laid down in the USCG Port State Control
Initiative which aims to drive substandard ships out of US
waters.
All ships entering US ports are assigned points for their
compliance with international safety conventions, their previous
track records and those of sister ships in the same ownership or
management, and the rating of their flag and classification
society.
A ship's points rating will determine its categorisation as
Priority I, II or III. The worst offenders, Priority I, require
inspection before they enter port (hence the buoy procedure
referred to above) and any defects must be rectified before port
entry where possible.
Priority II ships must be inspected before they load cargo or
embark passengers, and must be rectified before proceeding.
Sweden
Hopefully the USA (and SA) will enjoy the same success as
Sweden: when approached at the CMI conference in Sydney in
October 1994 for his comment upon the effectiveness of Sweden's
policy of port state control inspection, Mr Lars Lindgren, MD of
The Swedish Club retorted "We have no problem. No
substandard ships come to Swedish ports because their owners know
well what is in store for them".
Paris MoU States
In recent years, the international maritime community has
built upon the foundations of UNCLOS and has formed regional
co-operation groups such as the states now party to the Paris
Memorandum of Understanding ("Paris MOU"), first signed
in 1982.
The Paris Memorandum recognised the prime obligations of the
owner and flag state, but recognised also that "effective
action by port states is required to prevent the operation of
sub-standard ships". The Paris MOU required each state party
to inspect a minimum of 25% of all foreign ships entering its
ports in a year. There is agreement not to reinspect ships in any
participating port within 6 months. Somewhat idealistically,
initially there was to be no discrimination against either owners
or flags (in conformity with the Convention on the Conditions for
the Registration of Ships). In July 1993 however an amendments
was signed requiring port states to target specifically bulk
carriers, passenger ships, roll-on, roll-off ships, tankers or
gas carriers, and ships or their owners with a known poor
history. Certain flags were also targeted for special attention
by means of a 3 year "rolling average" table of above
average delays and detentions in the (MOU's) annual report.
Regional databases have been set up to monitor details of
detained ships, and port states should establish their own
blacklists and subscribe to those of others. Other regional port
state control organisations have been set up - A Tokyo MOU now
covers much of the Far East and the Pacific and MoU's are in the
pipeline for the Indian Ocean basins and for the South Atlantic.
The UK
The UK has taken embraced port state control inspections,
supported by most factions, including Lloyds Register [See eg
Beaumont, Lloyds List 11 November 1994:
We (Lloyds) view with concern any LR classed ship appearing on
any Port State detention list, or indeed any ship anywhere found
to be below the technical and safety standards expected of the
industry. We always have and always will take action against
owners when we discover that they failed to maintain their ships
to those standards if necessary by removing such ships from
class. In this context we remain fully committed to the concept
of Port State Control and welcome the contribution it makes
The UK DoT has achieved a 30% overall inspection rate, and it is
estimated that up to 80% of ships entering Paris MOU ports per
year are now being inspected at least once a year. In the first
10 years of the Paris MOU, its secretariat reports 125 000
inspections leading to over 4 000 detentions. Canada has
recently joined the Paris MOU, and in September 1994 the 15 MOU
states agreed to tighten inspections even further.
The IMO
In 1991 the IMO gave official recognition and encouragement
to the Paris MOU, in a Resolution which recognised the
"important contribution to maritime safety and pollution
made through regional co-operation ... in preventing, without
discrimination as to flag, the operation of substandard
ships".
Perhaps the most encouraging recent development in the battle
against the unseaworthy ship was the publication in Lloyds List
of 5 August 1994, of the UK's list of ships detained for the
month of June under its port state control inspections. Reasons
for detentions were given (and subsequently debated in the press)
and owners and manager were named. The UK has continued to
release a monthly list, though somewhat in arrears. Australia,
South Africa, Canada and the USA have followed suit - with
Australia absolving itself legislatively from liability for
naming or detaining vessels if done in good faith. Even this
though is losing its clout:
Just as there is such a phenomenon as "compassion
fatigue" when pictures of the world's suffering are paraded
endlessly on television screens, so the senses become dulled by
the parade of deficiencies which have resulted in ships being
kept in custody.
[Lloyds List Editorial: 23 February 1995]
Port state control is an international initiative. It requires
regional and international co-operation.
There is no "quickfix" - the solution is long-term at
best. But the effect must surely be that the message will filter
up the line to unscrupulous shipowners, cut rate charterers,
hull, P&I and cargo insurers, CIF shippers seeking lower
freight rates, coastal states, the industry at large (and not
least the seamens' unions and Missions to Seamen who struggle to
protect the rights and lives of seamen):
Substandard ships (or lets throw the euphemism aside and call
them unseaworthy ships) have no place in our
ports. They belong only in the scrapyard.
February 1995
John Hare
Shipping Law Unit
Institute of Marine Law
Faculty of Law
UNIVERSITY OF CAPE TOWN
|
|
