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PORT STATE CONTROL:
STRONG MEDICINE TO CURE A SICK INDUSTRY
John Hare
[* This article first appeared in Volume 26, Issue 3 of the Georgia Journal of International and Comparative Law - Special Admiralty Issue, (1997) and is re-printed by permission.] (Web Page posted: 15 June, 2000)
Preface
In a previous article dealing with flag, coastal and port state control [1], I suggested that the shipping industry was closing the net on unseaworthy ships and their unscrupulous owners. At that time, in early 1994, I shared the shipping industry's hesitancy to acclaim the success of port state control measures which were burgeoning around the maritime states of the world. There are now positive indications that port state control is proving more effective than even its most ardent early proponents would have hoped.
"Port State Control" as a concept, involves the powers and concomitant obligations vested in, exercised by, and imposed upon a national maritime authority (or its delegee) by international convention or domestic statute or both, to board, inspect and where appropriate detain, a merchant ship flying a flag foreign to that state in order to ensure compliance by that ship with all applicable international safety at sea instruments and with any domestic legislative maritime safety requirements.
This article will seek to explore the legal basis of international port state control and the manner in which it has matured over the past fifteen years into what has demonstrably become the most effective cure of the malaise of the maritime industry.[ 2]
In focusing on the legality and operation of port state control, one should however remain conscious of the fact that it is but one of a compendium of three prime jurisdictions which have a collective responsibility to ensure the maintenance of standards at sea; the first is flag state control by which is meant the international and domestic powers and obligations of a state which allows vessels to register under its flag. The birth of port state control is probably to be found in the failure of the majority of flag states (certainly by volume of tonnage registered) properly to carry out their responsibilities in administering their ships registers.[3]
The second of the control measures is the jurisdiction of a coastal state to police the use of its waters by foreign tonnage. This jurisdiction, and its limitations and inadequacies, was also examined in my earlier article.[4]
Port state control as the third jurisdictional regime, should therefore not be viewed in isolation from its two counterparts. But the time has clearly been reached where the maritime industry can embrace and applaud port state control as having been largely instrumental in bringing the industry back from the brink of disgrace upon the edge of which it was surely teetering at the beginning of this decade.
The nature and origins of port state control
The concept of a state exercising its jurisdiction over ships that ply its waters and particularly those that call at its ports, is well established in both history and legal practice.
It is universally acknowledged that once a ship voluntarily enters port it becomes fully subject to the laws and regulations prescribed by the officials of that territory for events relating to such use and that all types of vessels, military and other, are in common expectation obliged to comply with the coastal regulations about proper procedures to be employed and permissible activities within internal waters.[5]
But the practice of the majority of ports, at least until the last decade, was to give scant inspection to calling vessels. A pilot may well have checked whether the vessel was loaded below her marks, but even this was circumvented by the not uncommon but immensely dangerous practice of 'hogging' a ship to bend her load line above the water line. Maritime authorities were concerned almost exclusively with the affairs of their own ships (and then often in a far too lackadaisical manner). With the growth of flags of convenience -- many of whose maritime authorities turned a blind eye to the condition of the vessels whose fees they so readily received -- with the lack of interest by port authorities, and with the inadequacies of general coastal state policing of passing ships, the unseaworthy ship (euphemistically referred to 'sub-standard') abounded. That this slide was hastened by the general decline in world trade in the late 1970's, particularly for non-containerised break bulk cargo vessels, bulk carriers and tankers, cannot be denied. Surplus and superannuated tonnage long overdue for the scrap-yard can only be used to make meagre profits in the hands of marginal and economically stressed ship-owners.
It was in relation to oil tankers (many of which were knocked together with undue haste in the oil boom of the early 1970's) that the international community first sat up and took notice that there was perhaps something untoward going on in the shipping industry. The sad reality of news-making is that it is often easier to galvanise public opinion with a single photograph of three forlorn oil-soiled penguins than with a headline recording the sinking of yet another bulk carrier with all hands lost.
The control and prevention of oil pollution has long occupied the minds of international maritime legislators.[6] The chapter of major oil tanker casualties, starting with the grounding of the Torrey Canyon in 1967, gave a very conspicuous public face to the vagaries of shipping and the tragedy of what can happen when things go wrong. Less conspicuous was the continuing appalling loss of non-tanker merchant ships, particularly bulk carriers, which remains one of the prime causes of concern of the shipping industry to this day.[7]
Whilst oil pollution casualties may well have highlighted sub-standard shipping as a green issue[8], the continuing loss of seamens' lives is the whole nub of the issue and the catalyst that has given strength to the arms of the ILO, the IMO and the ITF in co-ordinating international reaction.[9]
Not that the international maritime community had not previously sought to establish regimes for self regulation; as early as 1876 the agitation of British MP Samuel Plimsoll led to the UK's Merchant Shipping Act, 1876 which enshrined the requirement of a load-line for all merchant ships. The successor to Plimsoll's Act, the present load-line convention, is one of the package of conventions relied on for port state control.[10]
And it was not only in relation to oil pollution and load-lines that the maritime community addressed issues of safety at sea. As early as 1914, following a conference in London [11], the first SOLAS [12] was concluded. The four subsequent SOLAS conventions [13] have covered most areas of maritime safety and are continually updated under the auspices of the IMO.
Disaster begets action and remedy. It took the loss of the Amoco Cadiz off the coast of Britanny in 1978, with a cargo of 227 000 tons on board, to focus the world's attention on the sea. The Amoco Cadiz spurred the IMO [14] into re-examining the laws of salvage -- an initiative which was then taken over by the CMI [15] in the preparation of the draft Montreal Salvage Convention which in turn led to the 1989 London Convention on salvage. It is beyond the scope of this paper to examine all the international conventions which impact upon the safety of ships at sea. Suffice to state that collectively, as will be pointed out below, they provide the framework for port state control inspections, and without them, and the considerable labours that preceded their conclusion, port state control would have as little direction as it would have teeth.
The role of international organisations
As has been alluded to above, the ILO and the ITF have played significant roles in applying pressure upon maritime states to apply relevant safety conventions and regimes. The CMI has also played its part in addressing salvage and safety issues. But it is upon the IMO that responsibility for the drawing up and implementation of safety standards became focused. The IMO, then as IMCO, was established by UN resolution in 1948, and the 1948 SOLAS convention which followed, took heart from the fact that for the first time there was to be a permanent international authority which could lobby for and enact international conventions to regulate shipping. The IMO, especially during the 1950s, played a leading role in the preparation of UNCLOS [16]. It has since sponsored and spearheaded the various subsequent SOLAS conventions establishing and improving load lines, navigation, watchkeeping, building and registration requirements of all ships.
In addition to the promotion of international conventions, the IMO passes its own assembly resolutions which in turn bind the member states of the IMO. It is these resolutions therefore which, coupled with the international conventions, impose obligations on port states to exercise the controls envisaged by the resolutions.
The IMO has recently consolidated its port state control measures.[17] The consolidated resolution and its annexures set out the procedures for port state control in chapter and verse. Inspections are categorised as initial port state inspections and then more detailed inspections. Guidelines are provided for detention and reporting procedures
Not only do the IMO provisions require surveys and inspections to ensure that vessels comply with the appropriate international conventions, they also now make it possible for port state control officers inspecting foreign ships to check operational requirements 'when there are clear grounds for believing that the master or crew are not familiar with essential ship board procedures relating to the safety of ships'.[18] The resolution makes particular reference to passenger ships and ships which may present a special hazard. 'Clear grounds' are defined in the Annex to the Resolution and include operational shortcomings, cargo operations not being conducted properly, the involvement of the ship in incidents caused by operational mistakes, absence of an up-to-date muster list and indications that crew members may not be able to communicate with each other in a common language. This is a departure from the previous constraints of port state control inspection which was that they should normally be limited to checking certificates and documents, the resolution confirms that if conditions are not valid, or if there are clear grounds (as defined) for believing that the condition of the ship or of its equipment or of its crew are not up to scratch, a more detailed inspection may be carried out. There is considerable focus on the crew's ability to carry out safety functions on board ship.
It should also be noted that the IMO plays an active role as observer in the activities of the regional port state control co-operation groupings referred to below.
The IMO recognises that it is not the deliberate intent of states to allow substandard ships to operate under their flags. Some states, particularly developing nations with new registers, lack adequate resources for policing their own fleet, yet alone the fleets of other vessels calling at their ports. The IMO has assisted greatly in training governments in improving their own maritime inspectorates, and plays a leading role in maritime education generally through the World Maritime University. Of the IMO's role in relation to port state control, its current Director, Mr William O'Neil, had the following to say on World Maritime Day in 1996:
Shipping is an international industry which is proud of its tradition of freedom of the seas, but that does not mean that ships can sail wherever they like regardless of their condition. The maritime world has the right to expect that ships of all nations meet the levels of safety and environmental protection which have been internationally agreed upon. It is up to shipowners to make sure that their ships are safe, properly manned and do not pollute the seas and it is the duty of governments to make sure that ships which fly their flag comply with the standards laid down in the IMO treaties which they have ratified. If they fail to do so, then IMO -- which has the stewardship of these standards -- has not only the right but the obligation to take further action.
It is thus the IMO which is prescribing the medicine. The IMO's medicine chest will be much strengthened by the coming into effect of the SOLAS requirement for ISM certification. This certification coupled with a Safety Management System (SMS) is due to take effect on July 1st 1998 and will impose upon ship-owners definitive standards of operation and management which will become the benchmarks against which port state control inspectors may in the future assess compliance.
Regional initiatives - the Memoranda of Understanding
Crucial to the success of port state control operations is the sharing of information gained about particular ships or their owners and operators, between jurisdictions in and out of which those ships trade. This for two reasons: first, one would not like unduly to inconvenience ships by inspecting them at each and every port; and second, to give forewarning to maritime states of the delinquents in their midst. The establishment of regional initiatives in which states are tied together in their port state control activities by memoranda of understanding ("MoU's"), are becoming increasingly significant and will no doubt one day encompass most of the world's oceans and ports. With the ease of dissemination of information through the internet, it is also likely to become the norm that the various regional initiatives, set up for geographic convenience, will increasingly share each other's databases, thereby closing the net even more effectively on the unseaworthy ship and its unscrupulous owner seeking to ply a trade into unsuspecting ports.
The first and perhaps most prominent of the regional groupings is the Paris Memorandum of Understanding which was signed in 1982.[19]
The Paris MOU was born of the December 1980 Regional European Conference on Maritime Safety which focused upon the need to increase maritime safety, the protection of the marine environment and the importance of improving living and working conditions aboard ship. The green issues and the human rights issues, at that stage still appallingly neglected were the impetus. It is thus interesting to note the preamble paragraphs of the MOU:
Mindful that the principle responsibility for the effective application of standards laid down in international instruments rests upon the authorities of the state whose flag a ship is entitled to fly;
Recognising nevertheless that effective action by port states is required to prevent the operation of sub-standard ships;
Recognising also the need to avoid distorting competition between ports;
Convinced of the necessity for these purposes of an improved and harmonised system of port state control and of strengthening co-operation and the exchange of information.
The groundwork was laid for effective international co-operation [20]. The key to the Paris MOU (and indeed to others and to port state control itself), is a requirement that each contracting state will ensure through an effective system of port state control, that foreign merchant ships calling in its ports, comply with the international instruments listed in the MOU.[21]
The MOU requires each contracting authority, within three years, to inspect an annual total of 25% of foreign merchant ships calling at its ports. And each authority will 'consult, co-operate and exchange information' with other authorities'. Authorities should "seek to avoid inspecting ships which have been inspected by any of the other authorities within the previous six months unless they have clear grounds for inspection."[22]
The 1982 Paris MOU required that port state control would be conducted 'without discrimination as to flag'. It also required that each state will ensure that no more favourable treatment is given to ships flying the flag of a state not party to the memorandum. As will be seen below, port state control has matured to the stage where it now recognises the need to accept the stark reality that some ships pose more of a problem than others: most MOUs now allow (indeed require) discrimination upon the basis of flag, age, type of vessel, loan owner or operator or even known classification society.[23]
The Paris memorandum sets out detailed guidelines as to inspection procedures and detention. The prime purpose of detention is to ensure rectification of defects in the vessel. Thus the Paris MOU provides [24]
In the case of deficiencies which are clearly hazardous to safety, health or the environment, the Authority will ... ensure that the hazard is removed before the ship is allowed to proceed to sea.
For this purpose, appropriate action may be taken which may include detention or stopping the ship from continuing an operation by reason of established deficiencies which, individually or together, would render the continued operation hazardous. Exceptions are allowed where a ship needs to proceed to a repair port. To prevent errant ship owners from running a detention, the MOU stipulates that such ships will be refused access to any port within other party states, until the owner or operator has provided evidence of rectification of the defects.[25]
One of the most important and effective provisions of the Paris MOU is the obligation imposed upon each authority to publish quarterly information about detentions under PSC procedures. This information is required not only to contain the name of the ship, but also the name of her owner and operator, her flag state and her classification society. The reasons for the detention are then given.
Initially port states were reluctant to publish detention information, particularly where owners were identified. They feared a rash of damages suits by irate ship-owners. Indeed there have been a number of protests at the content of detention publications. But publication has in the past three years become the norm. Let the brokers of the world know what ships have been detained and why. Let the world's insurers know who the miscreants are. Let the consumer, passenger or cargo shipper, know who the delinquents are and let them avoid using substandard ships as an effective means of ridding the oceans of their scourge. So comfortable have the port state authorities become with the publication of detention lists that you will now find them regularly in Lloyds List (UK, Australia, Canada and the US, on a monthly basis) and even on the internet.[26] Indeed the internet is likely to be a very valuable co-ordinating tool in the administration of port state control procedures in the future. It is the easiest way to access detention data bases and will certainly become the prime means of publication of detained ships in the future.
Following the lead (and largely also the letter) of the Paris MOU, can the Tokyo MOU for the Asian-Pacific Region 1993,[27] The Tokyo MOU is up-and-running although many of the participating states have yet to establish effective port state control facilities and procedures.
The Vina del Mar MOU, 1992, covers the Latin American maritime authorities.[28] This MOU recognises the objectives of a further regional maritime co-operation scheme [29] and then again repeats, largely to the letter, the provisions of the Paris MOU. An interesting addition to the Vina del Mar MOU however is Annex IV and Appendix I which seek to establish a 'Trade data interchange director' and a computer system to in the data base records of the participating states.
The most recent port state control system is that set up in the Caribbean on 9 February 1996 in terms practically identical to the Paris MOU.[30] The United Kingdom is expected to sign the MOU on behalf of its dependent territories in the Caribbean and the MOU takes effect upon signature of each participating country.
Other regional initiatives are on the way: the Mediterranean region has already had preparatory meetings, and there are discussions for West and Central African and Persian Gulf region, piloted largely by the Iranian Maritime Administration, for a further initiative for an Indian Ocean rim. Clearly, the success of these regional MOU's is interdependence upon the efforts of each other.
Domestic enabling measures
Armed with this formidable array of international instruments and bolstered by the resolutions of both the ILO and IMO, it is up to port states to exercise port state control in a manner consistent with their own domestic legislation. It is suggested that port state control is not an option: it is, at least for parties to SOLAS, UNCLOS, regional initiatives, and even by virtue of their membership of the IMO alone, an obligation in international law.
Many states have promulgated domestic legislation to give effect to the notions of port state control. We shall examine briefly the jurisdictions of the USA, the UK, Australia, South Africa and New Zealand.
1) The USA
The USA has, since 1st May 1994, promoted a rigorous and public policy of foreign vessel inspection.[31] Port state control in the USA is conducted by the US Coast Guard (USCG), which, prior to 1994, concerned itself mainly with limited aspects of navigation safety and pollution prevention, particularly in relation to tanker and passenger vessels. It was unusual for the coast guard to intervene to enforce the compendium of international instruments embraced by port state control.
In three years, the USCG has established a probing port state control system over the approximately 8 000 foreign flag ships which use US ports each year. The aim of the programme is clearly to eradicate the presence of substandard ships in US waters [32], and to this extent its aim parallels that of the American OPA.[33]
Legislative authority is given to the US Coast Guard under the US Code.[34] The chapter gives reciprocity to other parties to the SOLAS convention, which is a step in the direction of an international initiative which would be welcomed. The USCG requires all vessels of 1600 GRT or more to give advanced notice of their arrival.[35] The USCG then checks the vessel's details against its own records and that of its register and assigns points to each ship for compliance with international conventions, previous track records and those of sister ships in the same ownership or management, and the rating of the flag and classification of society involved. This is a clear departure from the initial 'no discrimination' provisions of early port state control measures. Indeed the purpose of USCG port state control is to recognise high risk vessels, their owners and their classification societies and to take appropriate action.
Upon the points rating, the ship is then categorised as Priority I, II or III. Priority I high risk vessels require inspection before they are even allowed into port limits, often at the buoys. Defects must be rectified before the vessel enters port if at all possible.
USCG Regulations set out detailed guidelines for port state control examinations. The proviso is given that:
PSC examinations are not intended nor desired to be analogous to an inspection for certification of a US flag vessel. Rather they are intended to be sufficient breadth and depth to satisfy a boarding team that a vessel's major systems are in compliance with applicable international standards and domestic requirements, and that the crew possess sufficient proficiency to safely operate the vessel. The examinations are designed to determine that required certificates are aboard and valid, and that a vessel conforms to the conditions required for the issuance of required certificates.
This is accomplished by a walk-through examination and visual assessment of a vessels relevant components, certificates and documents, and may be accompanied by limited testing of systems and the crew. When the examination reveals questionable equipment, systems or crew incompetence, the boarding team may expand the examination to conduct such operational tests or examinations as deemed appropriate.
What is most significant about the US Coast Guard's port state control policy, is the publication of lists of owners & operators flag states and classification societies which have fallen foul of USCG port state control procedures during the past twelve months. The USCG diligently publishes monthly detention records, giving full details of the vessel and the defects both on its website and in Lloyds List.[36]
Flags, owners & operators and classification societies are assessed to help assign the priority rating to a vessel under inspection upon the declared policy that 'if any of these entities fails to fully undertake its responsibilities for a ships safe operation, then the ship is likely to be considered a sub-standard vessel by the USCG.[37] A percentage rating is then given to both flags and classification societies.[38] The list and the detention ratio is constantly updated.[39] And the flags and classification societies themselves are categorised for priority status.[40]
2) The United Kingdom
The UK has suffered the exposure of two major maritime casualties having a bearing on the issue of sub-standard ships in recent times. The first was the tragic capsizing of the ferry Herald of Free Enterprise and the second the grounding of the tanker Braer off the Shetland Islands in 1993. Both gave rise to extensive and critical self examination of the UK's maritime safety measures, and the Braer disaster led to the most comprehensive enquiry into maritime pollution and safety yet undertaken in the form of the 'Safer Ships Cleaner Seas Report'.[41]
The port state control function is deputised to the Maritime Safety Authority.[42] The MSA undertakes survey, inspection and certification to ensure compliance with domestic and international marine standards by both UK registered and foreign vessels. The MSA has also recently also taken on a public face with an internet site giving details of its operation and publishing monthly detention lists.[43] In addition to publication its website, the MSA publishes monthly detention lists in Lloyds List. Like the USA, they too do not publish owners and classification society details in Lloyds List, though such details do appear on the website.
The UK is a party to the Paris MOU, and its detention procedures are thus regulated the MOU and its guidelines. UK law recognises is own inherent jurisdiction to exercise full domestic control over foreign flag vessels voluntarily using its ports.[44] The UK has reportedly set itself a 30% inspection target (see the 25% target set by the Paris MOU) and the MSA has succeeded in achieving a target in excess of that figure. In accordance with an agreement between the Paris MOU states, discrimination is now allowed to pay particularly attention to vessels considered to present special risks.[45]
That the UK is 'doing its bit' to make port state control public and to make it work, is clear from the review of its 1996 detentions.[46] There were 184 foreign flag detentions during the 1996 year which reflected an overall detention rate of 8.4% of all inspections carried out for 1996. This compares to the detention rate of 11.6% of 1995.
It is also significant to note that five flag states accounted for over half the ships detained. Let us not bluff ourselves that certain registers are themselves substandard.[47] Perhaps Panama's situation should be viewed in the light of its register containing the bulk of the world's merchant fleet and with recognition of its efforts to improve the safety record of its vessels.
3) Australia [48]
It is perhaps to Australia that one should look for an indication of the most conspicuously effective port state control programme. Australia too needed a catastrophic catalyst for its maritime authorities to sit up and take notice of the malaise which was permeating the shipping industry by the end of the 1980s: following the loss in relatively unexplained circumstances of six bulk carriers off the Australian coast between January 1990 and August 1991 an enquiry was convened 'to enquire into and report on the issue of ships safety at the national and international level' with particular concentration on bulk carrier vessels and foreign flag vessels plying Australian ports. The report of chairman Peter Morris titled 'Ships of Shame' did more perhaps to highlight the plight of the industry than any other initiative before or since. It makes riveting and chilling reading. It records a roll of neglect, inefficiency, corruption and tragedy. It is sadly a roll which, although substantially under check largely through the effectiveness of international port state control measures, has yet to have its last entry posted. Bulk carriers continue to sink in unexplained circumstances with appalling loss of life. But the port state control initiative which flowed from the Morris Report in Australia has sent a strong message to substandard operators to keep their ships away from Australian waters.
Port state control in Australia is conducted by the Australian Safety Maritime Authority (AMSA) it to has adopted a public face and complies with its publications to make its detentions known by publishing monthly statistics in the local and international shipping media and on its website.[49] As a member of the Asia-Pacific MOU, Australia more than complies with its 25% inspection target and in 1996 inspected 2901 vessels of which 248 were detained. Like the UK, Australia has no qualms about publishing delinquent flags and substandard classification societies, and these may be found on the AMSA website on a monthly basis. The site also gives details of detentions by ship type, an interesting addition.
The domestic legislative basis of AMSA's inspections is found in the Commonwealth Navigation Act 1912 (as amended) sec 210.[50]
In terms of that section, if it appears to AMSA that a ship is unseaworthy or substandard, the AMSA may order the ship to be provisionally detained, and shall immediately give the master of the ship notice of the provisional detention, with a statement of the grounds of the detention. AMSA must then commission a report as to whether the ship is unseaworthy or substandard -- a distinction which I have previously argued should be one of semantics only. [51] The Master of the ship must be given a copy of the report upon the strength of which a decision is taken whether to order the ship to be finally detained; or release her unconditionally (or on such conditions that the AMSA considers appropriate. If an order for the final detention of the ship is made, the ship shall not be released until AMSA is satisfied that her further detention is no longer necessary and orders her released.
4) South Africa
South Africa, like Australia, has for too long been a favoured destination for unscrupulous ship-owners. It suffers the additional risk of being on the most economical geographical route between the west and the east, and having a foul coastline with seasonal rough seas to boot. It is scarcely surprising therefore that South Africa has suffered more than its fair share of casualties, many involving sub-standard ships. It is salutary to note that of the world's ten largest VOC losses, the South African coastline has hosted three -- one being the second largest oil tanker ever lost.[52] South Africa has sufficient domestic legislative muscle to give full effect to port state control procedures. It has recently brought its accession to international instruments up to date, having become a full member of the IMO during the course of 1996. The new South African government, shortly after attaining power in April 1994, commission a full enquiry into maritime transport policy including matters of maritime safety which resulted in the publication of a white paper in September 1996 which recognised the importance of bolstering the SA port state control procedures.[53]
In addition to its international obligations and their concomitant powers, South Africa's main authority for inspection is found in the Marine Traffic Act, 1981 and the regulations published in terms of that Act.[54] South Africa is at this stage not a party to any regional initiative but is looking both west and east to align itself with initiatives in Latin America and in the Indian Ocean Rim. The officials in the Department of Transport are actively engaged in an on-going review of their port state control capability, and international co-operation. There is little doubt that regional initiatives covering the oceans to the west and east of South Africa will be formed. It would also make sense for South Africa to join the Asia-Pacific MOU as much of its passing traffic is destined for the Far East or Australia. It should apply for the status of "co-operating authority" from all the other MoU's -- not just those covering ports from which SA trade originates: SA's geographical location makes her particularly susceptible to passing tramp shipping from any part of the world.
South Africa has however a long road to travel to reach internationally accepted levels of inspection: owing to under-manning, the current overall inspection rate is below 5% although a higher percentage is achieved for bulk carriers and other high risk vessels. It is to be hoped that the initiative to form a South African Maritime Safety Authority [55] to which most of the maritime powers of the Ministry of Transport are to be delegated, will vastly improve South Africa's port state control focus and capability. It is an initiative which deserves the highest priority in the wake of the continued presence of substandard vessels in South African ports.[56] It is envisaged that SAMSA could be in operation by the beginning of October 1997.
5) New Zealand [57]
South Africa has taken much encouragement for the proposed establishment of its semi-privatised, fee-levying safety authority from the successful metamorphosis of New Zealand's state maritime transport authority. In 1994 New Zealand vested most state maritime authority in its newly established Maritime Safety Authority.[58]
New Zealand Maritime Transport Act, 1994, empowers the authority to detain any ship and impose conditions for its release inter alia where the "operation or use of (the ship) endangers or is likely to endanger any person or property, or is hazardous to the health of safety of any person"; or where "the appropriate prescribed maritime document is not for the time being in force in respect of the ship, or the master of any member of the crew of that ship."
There is a more general ground for the exercise of powers where "the Director is satisfied, on clear grounds, that the master is not, or crew are not, familiar with essential shipboard procedures for the safe operation of the ship."[59]
New Zealand, like Australia, has taken steps to absolve port state control officials from liability for actions taken in good faith.[60]
As has been seen above, New Zealand is a party to the Asia-Pacific MoU, 1993.
Appeal Procedures, Costs and Wrongful Detention
If there is an Achilles heel in current international port state control practice it is that authorities may be concerned by their possible exposure to actions for wrongful detention where a ship is detained for what subsequently and in retrospect turns out to be insufficient cause. If a chartered vessel is facing cancellation dates and is unable to complete loading or discharge by reason of a port state control detention, her owners would clearly suffer considerable financial losses. These losses may be mirrored down the charter party chain, and could be compounded by publicised allegations that the owner's hitherto good trading name has been tarnished.
In most jurisdictions, the actions of port state authorities, which are required by the MoU's to have either direct or delegated state powers [61], would be treated as the actions of the state and would be subject to ordinary administrative review procedures. The regional MoU's provide appeal procedures.[62] And some countries provide specific appeal procedures in their domestic enabling legislation.[63]
But what of the actions of the officials concerned, and of the liability of the authorities as their employers? Port state inspectors are required by the MoU's and by the IMO to be vested with delegated state powers. Being state employees, inspectors and their authority employers could find their actions under the same scrutiny as applied to an arrest of persons without good cause.[64]
Both the Australian and the New Zealand domestic legislation have taken a proactive stance in relation to liability of their port state control officers: the Australian Commonwealth Navigation Act, 1912 contains recent amendments which absolve officials from liability for 'anything done under the provisions of (the Navigation Act) unless direct proof of corruption or malice be given'. [65]
The New Zealand statute absolves members and employees of the authority from personal liability for acts done "in good faith in pursuance or intended pursuance of the functions or powers of the authority or of the Director".[66]
It is suggested that to give full effect to port state control, all states should follow the Australian and New Zealand leads and enact an indemnification of officials for actions taken in good faith. The Australian requirement that "corruption or malice" must be proved in order to found the claim makes sense: to allow damages to be claimed against the port state control authority because good cause is not subsequently shown with the wisdom of hindsight would unduly inhibit port state control. If a few ships are detained for insufficient reason and commercial losses are suffered thereby, it would be a small price to pay to ensure the efficacy of port state control and its resultant saving of life and property.
The costs of port state control inspections are borne by the port state authority, although it has become relatively common practice for states to levy a maritime safety charge upon vessels calling at their ports. Thus for example, the various maritime safety authorities are able to fund their operations to an extent on the "user pays" principle. Once a vessel is detained for non-compliance however, provision is usually made for all costs to be borne by the ship-owner.[67]
The measure of success
How does one measure the success of an international initiative such as port state control? Ideally, the first prize would be a significant drop in the number of seamen's lives lost at sea owing to the foundering of their ships. Sadly we are not yet seeing such tangible results. The losses continue, apparently unabated. Particularly of obo's and other bulk carriers which, having endured a long and hard-working life loading and carrying unforgiving cargoes such as iron ore, are then extended into overtime by marginal operators who can only afford minimum maintenance and below basic crew wages.
The Institute of London Underwriters' monthly casualty returns [68] almost each month record another bulker lost at sea with all hands. [69] On the positive side, there is a trend emerging which shows at least a levelling out of losses: The Institute's confirmed total losses for each year were 1993 (140 ships); 1995 (112 ships); 1996 (111 ships). 1997 saw 20 ships lost in January and February alone.
But there is little doubt that those jurisdictions who are taking their Port State Control obligations seriously (and who are fortunate enough to have the means to do so) are narrowing the trading options of the substandard ship. The new STCW provisions [70], the ISM standards [71] and novel and necessary measures such as ship identification devices similar to those employed on aircraft which coastal and port states are now authorised by IMO resolution to make mandatory, are all an indication that the maritime industry is taking the problem seriously.
Of Australia, once a favoured destination for sub-standard ships, and of the US (both of whose programs are relatively new) Lloyds List editor recently wrote:
You would have to be mad or terminally ignorant to fix a marginal ship out of an Australian port, and if you have an oil cargo to ship to the US you would need quality tonnage operated by demonstrably high quality managers.[72]
The New Zealand Maritime Safety Authority seems to be getting a similar message across. And the ITF earlier this year embarked on a program of targetting certain European ports to ensure that calling vessels demonstrated required safety standards. The ITF's campaign against flags of convenience, waged for over 40 years, has surely reinforced the message. The ITF's battle is not just against unfair wage and labour conditions: it aims to root out flags of convenience and the substandard ships they so often allow.[73]
Conclusion
Port state control internationally has come of age. With its roots founded in necessity bred of successive maritime casualties, it has come into its own as the most effective means of ridding the world's ports and oceans of sub-standard, unseaworthy and dangerous ships. This is not to say that international pressure on flag states, owners and classification societies to do their jobs properly and responsibly should be in any way relaxed: but the reality remains that there are good and bad ship-owners. There are good and bad classification societies. And there are good and bad ship registers. Let the international message of port state control be loud and clear: bad ships, bad owners, bad flag states and bad classification societies are pariahs for which there should be no place in the shipping industry of the future.
