The international shipping industry is responsible for the carriage of around 90% of world trade1. 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 31st October 2010, the world trading fleet was made up of 50,054 ships1, with a combined deadweight tonnage of 1,395,743 103 DWT2. 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.”3
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……………”3.
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 (Genoa 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 that 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.
Port state control inspections are restricted to merchants vessels and do not include fishing vessels, pleasure- and military craft.
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 of the crew 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.4
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.5
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).6 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 to know that the MoU is an agreement between maritime administrations and not governments. This detaches the memorandum of all political responsibilities and consequences.
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 1982.7
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 1: Paris MoU4
At present there are eight regional agreements on port state control and these have a total of 126 member states (as per may 2012). (see figure 2)
These regional agreements are namely;
1) The Paris Memorandum of Understanding on Port State Control 1982 (Paris MoU) (27 members)
2) The Acuerdo De Viña del Mar Agreement on Port State Control 1992 (Latin American Agreement) (13 members)
3) The Memorandum of Understanding on Port State Control in the Asia-Pacific Region 1993 (Tokyo MoU) (18 members)
4) The Memorandum of Understanding on Port State Control in the Caribbean Region 1996 (Caribbean MoU) (10 members)
5) The Memorandum of Understanding on Port State Control in the Mediterranean Region 1997 (Mediterranean MoU) (9 members)
6) The Memorandum of Understanding on Port State Control For the Indian Ocean Region 1998 (Indian Ocean MoU) (19 members)
7) The Memorandum of Understanding on Port State Control for the West and Central Africa Region 1999 (Abuja MoU) (23 members)
8) The Memorandum of Understanding on Port State Control in the Black Sea Region 2000 (Black Sea MoU) (7 members)
Figure 2: Regional memoranda of understanding8
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, it’s 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) (revised by MLC in 2006).
The Maritime Labor Convention (MLC) is bringing together more than 68 different international conventions and recommendations relating to the employment, living and working conditions of seafarers. The Maritime Labour Convention (MLC), developed by the ILO, will enter into force 12 months after 30 countries, representing 33 percent of the world’s gross tonnage, ratify it. It is expected to enter into force in 2012.
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 - is 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.
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.
The port state control officer
A Port State Control Officer (PSCO) carries out port State control. The PSCO is a properly qualified person, authorized to carry out port State control inspections in accordance with the Paris MoU, by the Maritime Authority of the port State and acts under its responsibility. All PSCO’ s carry an identity card, issued by their maritime authorities.4
Various training courses and Seminars for PSCO’ s are organized by national Maritime Authorities, the European Maritime Safety Agency (EMSA) and the Secretariat of the Paris MoU on PSC. This is to ensure effective and harmonized inspection procedures, which are followed throughout the Paris MoU region.
PSC Inspectors are boarding a ship without announcement and primarily check the ship's documents for completeness and validity. If there are any grounds to believe that the ship is substantially not conforming to the international conventions, the inspector will carry out an expanded inspection of the ship's condition and the required equipment. The master will receive an official inspection report consisting of Form A and B. Form A lists the ship's details and the validity of the relevant certificates. Form B shows the list of deficiencies found (if any), with an action code which describes a timeframe for rectification for each deficiency. If clear grounds are established that the ship forms a hazard to safety and/or the environment, the PSCO has the right to detain the ship in port until the respective deficiencies have been rectified and resurveyed. The PSC authority will either resurvey by own inspectors or ask for a survey report from the classification surveyor to verify the rectification. In case of a detention the PSC authority has the right to present a bill about their inspection activities. Any detention has to be reported as soon as possible by the authority to the flag state, the classification society and IMO. The data about the inspection and the given timeframe for rectification are entered in a computer system used by all members of a regional PSC agreement.9
Inspection Efforts by Paris MoU
The number of individual ships inspected in the Paris MoU region 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”.10
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 ‘THETIS’ (replaces ‘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.
The THETIS information system, hosted by the European Maritime Safety Agency, informs national PSC authorities which ships are due for an inspection. Data on ships particulars and reports of previous inspections carried out within the Paris MoU region are provided by the information system as well.4
Each ship in the information system will be attributed a ship risk profile (SRP), in accordance with Annex 7 of the Paris MoU text. This SRP will determine the ships priority for inspection, the interval between its inspections and the scope of the inspection.
Ships are assigned high, standard or low risk. This is based on generic and historic parameters. The next table shows the criteria within each parameter for each ship risk profile.4
A ship’s risk profile is recalculated daily taking into account changes in the more dynamic parameters such as age, the 36 month history and company performance. Recalculation also occurs after every inspection and when the applicable performance tables for flag and recognized organizations are changed.4
- High Risk Ships (HRS) are ships which meet criteria to a total value of 5 or more weighting points.
- Low Risk Ships (LRS) are ships which meet all the criteria of the Low Risk Parameters and have had at least one inspection in the previous 36 months.
- Standard Risk Ships (SRS) are ships which are neither HRS nor LRS.
Table 1 Ship Risk Profile4
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.
The inspection intervals are determined by the time window as per Ship Risk Profile.
High Risk Ship:
- Priority II: between 5-6 months after last inspection in the Paris MoU area, ship may be inspected.
- Priority I: after the 6th month ship must be inspected.
Standard Risk Ship:
- Priority II: between 10-12 months after last inspection in the Paris MoU area, ship may be inspected.
- Priority I: after the 12th month ship must be inspected.
Low Risk Ship:
- Priority II: between 24-36 months after last inspection in the Paris MoU area, ship may be inspected.
- Priority I: after the 36th month ship must be inspected.
Figure 3 New Inspection Regime 1/211
Figure 4 New Inspection Regime 2/211
Overriding and unexpected factors: examples
Overriding factors are Priority I in case of:
- Illegal discharge
- Unsafe manoeuvring
- Suspended or withdrawn class
- No ship’s data in database
Unexpected factors are Priority II in case of:
- Outstanding deficiencies
- Previously detained ships (after 3 months from detention)
- Cargo problems
- Reporting by pilots
Member States if deemed necessary may still inspect a ship before the window opens and if no overriding or unexpected factors are recorded.
The Company Performance Criteria
Is a new criterion within PSC to benchmark shipping companies taking into account the detentions and deficiency history of their entire fleet.
(*) each ISM deficiency counts as 5.
Below Average: >2 below Paris MoU Average
Average: Paris MoU Average ± 2 points
Above Average: >2 above Paris MoU Average
On line are calculators available to estimate the performance of the company
Figure 5: Outcome of an on line calculation of the company performance criteria11
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 ship4:
- 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 however not 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.
Black-Gray-White list of flag status based on a 36 months inspection data are published annually by Paris MoU.
With the New Inspection Regime the Paris MoU has widened the banning for multiple detentions from certain ship types to ALL ship types and extended the flag from the black- listed to include also the grey-listed ones.
Table 2: Black list valid on the 1st July 201112
The banning criteria for the first and second ban are as follows:
- If the ship flies a black listed flag it will be banned after more than 2 detentions in the last 36 months.
- If the ship flies a grey listed flag it will be banned after more than 2 detentions in the last 24 months.
- Any subsequent detention after the 2nd banning will lead to a ban, regardless of the flag.
A time period until the banning can be lifted is introduced, which is as follows:
- 1st ban: after 3 months
- 2nd ban: after 12 months
- 3rd ban: after 24 months
- 4th ban: permanent ban
Note: To lift the 3rd ban more stringent conditions are applied which have to be fulfilled before the 24 months has elapsed.
Banning of ship following other occurrences:
- Any ship that jumps detention
- Any ship that fails to call to agreed repair yard
The list of banned ships is published on the website of Paris MoU.
Does the Port State Control System pay off?
The Paris MoU annual report shows that the number of Port State Control inspection efforts is increasing. The number of recorded deficiencies is steadily growing. This is not alarming but a natural consequence of the increased number of inspections.
The number of detentions is decreasing. This means that more ships satisfy the minimum standards and that the flags of convenience, associated with serious deficiencies, are slowly but surely losing ground.
Major Deficiencies 2010
In 2010 the detention rate of general dry cargo ships (5.47%) is higher than the detention rate of other ship types. Ship types such as refrigerated cargo vessels and bulk carriers have a lower detention rate of 3.09% and 2.77% respectively. The other ship types have even lower detention rates. For more details we see the annual reports.4
Deficiencies per category
% of total number of deficiencies
Equipment, machinery and safety and fire appliances
Ship and cargo operations
Working and living conditions
Stability and structure
Table 6-3: Deficiencies per category. Own work after12
The Medical Aspects of Port State Control13, 14, 15
Quite a lot of organizations are important to shipping and shipping industry. We restrict the scene to the World Health Organisation (WHO), the International Maritime Organisation (IMO) and the International Labour Organisation (ILO)
The world health organisation
The World Health Organization (WHO) is the directing and coordinating authority on international health within the United Nations’ system. The WHO has enacted the International Health Regulations (IHR) besides air- and ground transport also applicable to maritime transportation.
The International Health Regulations (2005) or "IHR (2005)" are an international law which helps countries work together to save lives and livelihoods caused by the international spread of diseases and other health risks. They entered into force on 15 June 2007 and are binding on 194 countries across the globe, including all WHO Member States.16
The IHR are the working tools of recognised port health authorities allowing them to exert inspection on board of foreign vessels entering their ports.
Measures for deratting and disinfecting are to be implemented. The health measures called for are the maximum measures that a state may apply for the protection of its territory against cholera, plague and yellow fever.
Within this working frame every master of a ship coming from abroad and entering a port must supply public health information required by the competent authority as to health conditions on board during the international voyage. He does so by filling in the 'Maritime Declaration of Health'.
The form, standardised by the IMO facilitation committee, contains 6 questions.
- Has there been on board during the voyage any case or suspected case of plague, cholera, yellow fever, typhus or relapsing fever?
- Has plague occurred or been suspected among the rats or mice on board during the voyage, or has there been an abnormal mortality among them?
- Has any person died on board during the voyage otherwise than as a result of accident?
- Is there on board or has there been during the voyage any case of disease which you suspect to be of an infectious nature?
- Is there any sick person on board now?
- Are you aware of any other condition on board which may lead to infection or the spread of disease?
These questions can be answered via radio or, in most cases, via the pilot.
If all of the questions are answered negative the ship receives “free pratique” if a question is answered positive the ship is quarantined and any further contact is regulated by the port health authorities.
As of 15 June 2007 the International Health Regulations (2005) have introduced new certification procedures for ships. The new certificates are entitled Ship Sanitation Control Exemption Certificate/Ship Sanitation Control Certificate ("Ship Sanitation Certificates" or "SSC"). These SSC replace the previous Deratting/Deratting Exemption Certificates ("DC/DEC") provided for under the IHR (1969).
The scope of the SSC is to identify and record all areas of ship-borne public health risks (not limited to rodents), together with any required control measures to be applied.
- Preventing the international spread of food-borne and vector-borne disease.
- Preventing the international spread of contamination or infection from cargo.
- Preventing person-to-person spread of disease internationally.
- Potable water.
- Preventing international disease spread from discharge and contamination of crew members through leaks or overflows.
- Preventing international disease spread through discharge of ballast water.
- Preventing international disease spread through discharge of Solid and medical waste.
- Standing water: preventing international transport of insect vectors.
- Engine rooms: preventing international transport of vectors and hosts.
- Medical facilities: preventing person-to-person spread of disease.
The validity of the certificate is limited to 6 months (the same as the deratting certificate).
The IMO STCW 199517
Section A/VI-4 of the STCW Convention provides mandatory minimum requirements relating to first aid and medical care.
It distinguishes between seafarers designated to provide medical care and first aid on board and those to take charge of medical care on board ship.
Employers should ensure that all seafarers are medically examined to the applicable international or national medical standards before they are first engaged for service in the company. A medical examination should be undertaken by a medical practitioner recognised by the competent authority in the seafarers ‘country of residence in accordance with that country’s standards and where applicable with the medical standards required by the flag state. Employers should encourage the medical examinations to be conducted in accordance with the ILO guidelines and to incorporate the IMO recommended physical ability standards for seafarers.
If the seafarer satisfies all criteria he receives a certificate of medical fitness with a validity of maximum 2 years.
The ILO maritime labor convention 200618
The ILO's Maritime Labour Convention (MLC), 2006 provides comprehensive rights and protection at work for the world's more than 1.2 million seafarers.
The Convention sets out seafarers' rights to decent conditions of work on a wide range of subjects, and aims to be globally applicable, easily understandable, readily updatable and uniformly enforced. It has been designed to become a global instrument known as the "fourth pillar" of the international regulatory regime for quality shipping, complementing the key Conventions of the International Maritime Organization (IMO).
The decision by the ILO to move forward to create this major new Maritime Labour Convention was the result of a joint resolution in 2001 by the international seafarers’ and ship owners’ organizations, also supported by governments. They pointed out that the shipping industry is “the world’s first genuinely global industry” which “requires an international regulatory response of an appropriate kind – global standards applicable to the entire industry”.
The “medical” inspection by PSC officers
The “medical” inspection of ships by the port state control officer is based on 2 legal instruments, 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 making important improvements through the Maritime Labour Convention 2006. (may 2012, not yet into force18). This will group all ILO maritime provisions 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 for implementing 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 the main means to be used to verify compliance with the 2006 convention.
Possession of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance will be prima facie evidence of compliance.
More detailed inspection are conducted if there are “clear grounds” or “reasonable grounds” for suspecting that the ship has been re-flagged to avoid compliance or there are complaints alleging non-conformance. Non-conformities with the relevant international conventions may 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, whether or not their flag state has signed the ILO convention, can be inspected by port state control inspectors and will be treated likewise.