PSC and MOU

F R Chowdhury

Shipping is the most international business in the world. It cannot operate globally under any unitary regulatory control of an individual state. It has to comply with common standards developed at international forum; and that forum is now IMO – International Maritime Organization, a specialized agency of the United Nations.

However, IMO is not an international government. It cannot enforce any compliance. That has to be done by the Member States. Once the common standards are adopted on the floor of IMO in the shape of an international convention, it is now for the Member States to accept those conventions by becoming parties to the conventions. It then becomes the legal and moral obligation of the relevant state to transpose the provisions of such conventions into national legislation – that is to give force of law within its jurisdiction. The Member State will then enforce it within their jurisdiction as part of their national law.

Every sea-going ship has to be registered in a country to fly its flag. Through the process of registration it gains its identity. The certificate of registry will have its name, port of registry, flag, IMO number, call sign, MMSI number, dimension and tonnage, name of the owners etc. In old days it was customary to have the name of the master endorsed on COR but it is not necessary now. It is also not necessary to show financial status with respect to any mortgage because the transcript of the ship (obtainable from the registrar) will clearly show this information.

A ship registered in Bangladesh will be referred to as a Bangladeshi ship and shall fly its flag. This ship will comply with Bangladesh rules and regulations for maritime and shipping, no matter where the ship is. In addition, when in a foreign port, the ship shall also comply with the requirements of the host state. This is why the ship flies a courtesy flag of the port state. Hopefully the statutory requirements will be similar as both flag state and the port state will have their requirements derived from common IMO conventions.

By now it is clear that every state will have two different modes of control and enforcement – one as Flag State on its own ships and the other as Port State on visiting foreign ships. Together they create a safety net that rogue ship-owners and sub-standard ships cannot dodge. The port state control (PSC) must be exercised as a hand of cooperation to the flag state. Supposing we board a German ship in Bangladesh to exercise PSC, the underlying message to German Administration will be “Don’t worry, we will ensure safety compliance on your behalf. Your lives are equally important as ours. We will do everything that you would have done”. It is very important to impose equal standards (to own ships as well as foreign ships) so that none can blame you for double standards.

There is another big question. Can a flag state think that it need not comply with the requirements of a particular convention because the state is not a party to the said convention? No, because its ships will be subjected to those requirements when it enters the jurisdiction of a port state that is a party to that convention. This is because the convention requires every party state to enforce the requirements without any favourable treatment to a ship from a non-party state. If a ship is to trade freely around the world it has to comply with the requirements of all conventions in force. It is better to be an active player than sitting on the sidelines – I mean it is better to become a party to the convention if, in any case, I have to meet the requirements. There is no way to operate a sub-standard ship on the plea of not being a party to the convention.

During the PSC, the inspector should explain all deficiencies in a manner that ship can get them rectified. In case of serious deficiency, conditions should be attached for their rectification within a given period. The authorities at next port of call may be alerted where necessary. Ship may be detained only – “when allowing the ship to proceed to sea may mean serious threat to life, property or environment”. Such ships must remove all defects and deficiencies before being allowed to proceed to sea.

PSC inspectors should always remember to make correct reference to each and every deficiency. Such references may normally relate to international conventions for common understanding of all concerned. However, in respect of detention, it is very important to make reference to provisions of national law. This is because if the ship-owner wants to challenge the detention (through local agents) the court shall go by the law of the land.

Another thing must be clearly understood. Detention is not arrest. A ship may be arrested against claims only on the order of a court. It got nothing to do with the safety standard of the ship. Detention is an administrative/ executive function of the Administration and cannot be linked with any commercial outcome. That is why port authority cannot conduct Port State Control (because the port authority collects charges for extra stay even if it is due to detention). It is done by the Administration of the State to which the port belongs.

Now we shall focus on MOU which stands for Memorandum of Understanding. There is no reference to any MOU in any of the international conventions. Such MOUs are normally signed by a group of countries in an area/ region. It is to coordinate PSC inspections in a rational way so that unnecessary repetitions can be avoided. It also keeps Member States informed of status of ships visiting the area so that more specific actions can be taken against rogue ship-owners and sub-standard ships. Paris MOU puts together a large number of European States and this has made life difficult for substandard ships to operate in Europe. Similarly Tokyo MOU puts together a number of states in the Far-East. It is not a must for states to join some MOU. Every sovereign state can exercise its inherent right independently. However, MOU allows regional countries to share each other’s experience to work together for common goals. MOUs utilise common forms and coding system. It is interesting to note that United States has not joined any MOU. They conduct PSC on foreign ships through their Coastguard. Canada is a member of both Paris and Tokyo MOUs (Paris MOU for Atlantic coast and Tokyo MOU for Pacific coast).

Finally we shall talk about Classification Societies/ Recognised Organizations. They are like independent standard institutes. A ship remains classed with a Society so long it meets the laid down standards. In the charter market it matters a lot if the ship is classed with a reputable society. Because these societies are fair and independent, many flag states delegate lot of statutory survey, audit and certification with them. It must be clearly understood that only functions can be delegated and not the responsibility. It is for this reason that flag state must retain a supervisory role to ensure proper compliance of statutory functions. Because Classification Societies would not like to displease their clients, PSC cannot be exercised by Class Societies.

Classification was never a compulsory requirement. Now it has become. Though SOLAS, LL and MARPOL give lot of requirements yet, it does not provide a complete code for construction of ships. Classification Societies also have requirements relating to inspection of every part, component and equipment at least once every five years. IMO has finally done something sensible by introducing in SOLAS-74 Part-A1 Reg. 3-1 that a ship to which the Convention applies shall be designed, built and maintained, including its mechanical and electrical components, in compliance with the requirements of a Recognised Organization.

London, 03-March-2015                                                  <[email protected]>