C. Douglas Port state control: text

The Port State Control of Human Error: A Feasibility Study

Charles Douglas
Final year LLB research option, 1999

|| Introduction || The Legal Framework ||
|| Feasibility Study || Conclusion ||

1. Introduction:

The safety of ships at sea is a focal point of international maritime law. It is a particularly problematic issue in South Africa, which has long been a favoured destination of unseaworthy ships. This problem has been exacerbated by the infamously wild Cape coastline, which must be breached in order to provide access from west to east.

Over the past 10 years there has been a growing recognition that human error, rather than equipment problems, has been responsible for approximately 80% of pollution and marine accidents. It is perhaps ironic then[1] that most safety organisations have "placed virtually all their resources into equipment or cargo regulations, rather than focusing on the human factor". This is perhaps because the structural safety of a ship is easier to assess because there are objective standards that must be met. On the other hand, the human element is subjective in nature, and thus more difficult to regulate.

However, recent meetings of the IMO[2] have shown an increased commitment to improving the regulation of human factors. The Second Meeting of the Joint IMO/ILO Working Group on Investigation of Human Factors in Maritime Casualties[3] is testament to this fact suggesting that the human factors which need to be taken into account when considering whether an accident was due to human error include fatigue, stress, health, communications, working conditions and skills. As a result, detailed Guidelines on investigation of human factors in maritime casualties and incidents have been developed which promote an interactive investigation of crew skills and reporting procedures. Such measures will require trained officials to investigate in detail the procedures of ships, in order to ascertain whether the human element is being effectively controlled.

The relevant question becomes how these more interactive measures can be most effectively implemented within a South African context. It will be argued that this is best achieved through port state control, which "confers the power to board, inspect and where appropriate, detain a merchant ship".[4] This form of regulation has come to the fore in the past 10 years. However, it must not be seen in isolation, but rather within the context of two other forms of regulation which are charged with the maintenance of safety of ships at sea, but which have proved to be ineffective in establishing comprehensive control.

The first of these is flag state control, which covers the "international and domestic powers and obligations of a state which allows vessels to register under its flag".[5] An example of such an international power appropriate to our present discussion is the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).[6] This Convention gives the flag state the primary responsibility for exercising control, through legislation and penalties, so as to ensure that the provisions of the Convention are complied with. Practically, this involves the issuing of a certificate indicating that the provisions of the Convention have been complied with. Without these certificates, world-wide trade would be near impossible.

This protection offered by the Flag State is, however, unable to provide sufficient regulation. This is particularly true within the field of human error where an interventionist approach to regulation is required. The problem is that it is not feasible for the Flag State to employ a global inspectorate to ensure continued compliance with standards across the globe. The local classification and non-exclusive marine surveyors who are contracted out by the Flag State can only achieve a limited degree of regulation. They work under continuous pressure from the ship owners, often in dangerous conditions. In certain cases, this lack of effectiveness is exacerbated by unscrupulous registers who issue certificates to ships that are clearly unseaworthy. These problems are addressed by port state control, which provides regulation that is more independent and which has the infrastructure needed for any interactive control.

Similarly, the regulation offered by coastal state control is not broad enough to encompass the control of human error. Such control gives to the State certain limited powers under international law to protect its interest along that coastline.[7] Because the interference with ships on the high seas is particularly dangerous and inconvenient, intervention is limited to those cases where the ship is involved in ‘non-innocent passage’. This is defined as passage that is "prejudicial to the peace, good order or security of the coastal state".[8] The regulation of human error can clearly not be effectively implemented within the limited scope of this power.

The question then becomes whether port state control can cure the deficiencies of both flag and coastal state control. The focus of this paper will be two-fold: Firstly, I will discuss the legal grounds for port state regulation of human factors. Secondly, the feasibility of such interactive regulation within the South African context will be assessed.

2. The legal framework:

The powers and obligations of port state control are imposed by international convention, domestic statute, or both. The first recognition was given to port state control by article 25 of UNCLOS,[9] which empowered states to take necessary steps to prevent the breach of conditions by vessels calling at any port. This provided the framework upon which subsequent Conventions and Resolutions of the IMO could hang. Important to our present discussion is Resolution A.596(15)[10] which pointed out that "the great majority of maritime accidents are due to human error and fallibility and that the safety of ships will be greatly enhanced by the establishment of improved working practice". In 1995 Resolution A.742(18)[11] gave content to this by allowing a port state control inspector, who had "clear grounds" for believing that the operational condition of any ship did not meet with the stipulations of Convention, to check on-board procedures. Central to this was an enquiry into whether key crew members could communicate adequately with one another and if the officers in charge of the navigational watch were familiar with bridge control and navigational equipment. Thus, in these Resolutions, we see the beginnings of a focus on the human element, which departed from the previously restricted ambit of port state control inspection that involved checking certificates and documents only. Indeed, the Guidelines on investigation of human factors in maritime casualties and incidents can be seen as an elaboration of these powers, requiring even more input from port state inspectors.

Since 1996, South Africa has become a full member of the IMO and is consequently obliged to implement these guidelines in a manner that is consistent with the domestic legislation. It is thus imperative to enquire whether the South African legislation is broad enough to encompass such wide-ranging powers being conferred on the port state inspectors.

Section 4(b) of the South African Maritime Safety Authority Act[12] gives to SAMSA[13] the authority to "carry out such other duties as are assigned to the Authority by or under any other law". Thus, SAMSA is enjoined by section 7 of the Merchant Shipping Act[14] to

inspect any South African ship wherever she may be or any ship not registered in the Republic while she is within the Republic or the territorial waters of the Republic for the purpose of ascertaining whether she complies with the provisions of [the Merchant Shipping Act]

Section 9(1) elaborates on this by stipulating, inter alia, that authorised surveyors are entitled to "inspect the same or any part" of the ship. It is submitted that this could be argued as including an investigation of human factors as ‘any part’ of the ship encompasses the crews’ various skills. Added to this is section 244 which allows inspection and detention of any ‘unseaworthy" ship. Although this term has not been specifically defined by the Act, it is discussed in the common law. Namaqua Mining Company v Commercial Marine Insurance Company[15] suggested that seaworthiness is:

that standard of readiness of vessel, personnel and equipment which a reasonable, prudent mariner would expect to enable the vessel safely to navigate and carry her personnel and cargo from the intended port of sailing to her envisaged port of discharge.

Again, within this context, it can be argued that a ship whose human element is likely to lead to an accident can be classified as unseaworthy, thereby subjecting it to port state detention and inspection under section 244. Section 240 states that such unworthy are not permitted to leave port until the defects have been rectified.[16]

The legal basis for port state control of human factors is further galvanised by the Merchant Shipping (ISM Code) Regulations.[17] These Regulations apply to passenger ships, oil and chemical tankers, bulk carriers, gas carriers and cargo high speed craft of 500 gross tonnage and above and to other cargo ships and mobile off shore drilling units of 500 gross tonnage.[18] They outline a system of verifications in the form of a Document of Compliance and a Safety Management Certificate, which must be re-validated after differential time periods as specified in the Regulations. The code has been described as "the last chance for the shipping industry to put its house in order, a license to operate ships, a stout cord that will finally lasso the cowboys".[19] It has a focus on the management system of the ship, which includes the control of human factors.[20]

The Merchant Shipping (ISM Code) Regulations only cover specific categories of vessels. More broad ranging authority is given to the port state authorities by the STCW. This Convention was revised in 1995 due to a growing awareness of human factors in shipping casualties. The resultant STCW-95 has a focus on ensuring globally implemented minimum standards for maritime training and control of seafarers competency. The need for such uniformity has been stressed by the IMO, and thus the STCW-95 will become an important focus when addressing the problem of regulating the human factor. Although full compliance with the revised STCW-95 is only required by 1 February 2002, its content is still vital to our present discussion.

As has been mentioned, the STCW-95 saddles primary responsibility with the flag state. Regulation I/4 goes on to prescribe the boundaries of port state intervention. The subordinate position of the port state is highlighted by the fact that subsection 1 of these regulations limits the port state control to the inspection of the "appropriate certificate or a valid dispensation". However, subsection 3 of the same Regulation demonstrates the recognition that the port state must be given a certain degree of flexibility in order to be able to act as an effective safety net. Thus, the subsection allows for an assessment where "there are clear grounds for believing that such standards are not being maintained". Again, several prescribed categories lay out where such ‘clear grounds’[21] exist so as to delineate the boundaries of intervention. Again, however, these boundaries are blurred by the catchall stipulation that intervention is allowed whenever the "ship is otherwise being operated in such a manner as to pose a danger to persons, property or the environment".

It is these broad categories which provide the ‘legal loop-hole’ for port state regulation of human factors in the appropriate circumstances. The Det Norske Veritas Classification Society[22] suggest that this can amount to a demonstration including "performance of duties at the workplace and using the equipment of the ship. This must be interpreted also to include safety drills to demonstrate effective crew co-ordination and communication when there are grounds to believe that ineffectiveness in this relation have been the cause of dangerous operation".

Thus, the adoption of the ISM Code and STCW-95, supported by sections 9(1) and 244 of the Merchant Shipping Act suggest that the South African legislation is indeed broad enough to encompass the control of human factors through port state control.

3. Feasibility Study:[23]

It remains then only to explore the question of whether it is feasible to regulate human factors through port state control. This enquiry has a particular flavour in South Africa due to it’s third world nature. Thus, the financial feasibility of implementing an effective port state control of human factors must be considered.

In addition to this, there are other more global concerns that need to be addressed. These were outlined by Fernando Plaza as the Senior Deputy Director of the Maritime Safety Division of the IMO:[24]

Is the traditional role of the Flag State, which has the ultimate responsibility for safety, being eroded? Are we promoting yet one more set of already numerous on-board inspections? Is there a danger that some participating countries may use port state control as a trade barrier or as a retaliatory tool? Can the introduction of the International Safety Management (ISM) Code for operational requirements be considered too subjective for disciplined control? Could port state control be abused by unscrupulous port authorities? Will the whole process cause a global delay in shipping movements?

Thus, in these questions we see a tension that exists between the need for global economic development, which must be balanced with the need for the safety of people and the environment.

Plaza suggests that these concerns can be addressed through the adoption of uniform standards, including "common criteria for inspections, harmonised inspection and detention procedures, internationally approved qualification of control officers, an internationally applied Code of Conduct; and transparency through increased information within regions and inter-regionally".

I will attempt to show that both these local and international concerns have been addressed and that the door is indeed open for effective port state control of human factors.

3.1. Footing the bill of port state inspections:

Prior to the formation of SAMSA, the major factor inhibiting the effective implementation of port state control was the fact that it fell under the Chief Directorate of Shipping in the Department of Transport. As one of the seven directorates in the Department, there was no financial independence and a constant wrangle for scarce resources.[25] Often, the concerns of port and harbours were judged to be subservient to other modes of transport.

However, with the formation of SAMSA came financial independence. The means of such independence is laid down in the South African Maritime Safety Authority Levies Act[26] which entitles SAMSA to make determinations "imposing levies and specifying the person by whom, and the times when, such levies are payable".[27] This is subject only to the approval of the Minister of Transport, whose decision whether to approve or disapprove of the proposed levies must have "regard to the objectives and functions of the Authority".[28] An additional safeguard for SAMSA’s financial independence has been built in by section 46(3) of the South African Maritime Safety Authority Act.[29] This section enables SAMSA to recover from the State all "unrecoverable reasonable costs and expenses incurred or to be incurred by the Authority in the carrying out of any duty . . . to prevent or combat pollution of the marine environment by ships".[30]

Thus, we see that a great deal of independence has been statutorily guaranteed for SAMSA. This should enable the Authority to be financially feasible, despite the third-world realities of South Africa. This is perhaps appropriate when one considers that the shipping industry is essentially international in nature, and should thus not be constrained by the economics of a particular country, but rather by the economics of the industry.

However, the imposition of such levies is not uncontroversial. Lord Donaldson[31] has justified the imposition of such levies on the basis that it is the shipping industry that puts sub-standard ships to sea, and therefore it is the shipping industry that should cover the costs of policing these ships.[32] The shipping industry has obvious concerns in this regard. These were articulated by Mr Hunter, Vice President of Administration, Petroleum Shipping, in response to Lord Donaldson’s report:

On the idea that port-state inspections should be funded by a charge on shipping the owners again have their doubts. While there is some sense in questioning why UK taxpayers should foot the bill for the failures of flag states, making the responsible and law-abiding shipowner also has its problems. Current port-state control thinking is that ships should only pay when a discovered deficiency requires a second or further visit. "We see no reason why this basic approach should be changed – innocent until proved guilty and then the guilty must pay," says Mr Hunter.[33]

At present, the South African approach seems to have taken account of these various competing concerns. The Government has put aside funds to finance 700 port state inspections along its coast every year. If, as a result of this inspection, the necessity arises for the detention of the ship, a levy is imposed upon that ship. At present, each subsequent SAMSA inspection is levied at R2400.[34] The detained ship may be subjected to several such inspections until it is adjudged by SAMSA to be in a seaworthy state. Section 46(1) of the South African Maritime Safety Authority Act precludes the possibility of any liability attaching to SAMSA as a result of any "loss of damage" incurred during the detention. This would include any financial loss resulting from delay due to the detention.

Thus, we see that there are sufficient finances to allow for effective port state control of human factors. The only constraining element is the limit set by Government of 700 ships per year. Thus, the SAMSA officials need to be careful about which ships they inspect. In this regard, SAMSA is assisted by two factors — Memoranda of Understanding (MOU) and the ability to target certain obviously sub-standard ships:

3.2. Regional Co-operation through Memoranda of Understanding:

MOU are regional agreements between countries that promote co-operation in a particular field and which allow for uniformity through the sharing of information. In addition, they have implications for the financial feasibility of port state control as they preclude the necessity of inspecting every ship that passes through a particular country’s ports. Instead, a particular port can access a web-site on the Internet and gain access to information about which ships have already been inspected at other ports within the regional group and those that have been detained for deficiencies. This greatly reduces the workload on a particular port authority, as well as reducing the multitude of port inspections that must be endured by the ships. In this way, both money and time are saved and thus, the MOUs are good news for both the port state and the shipping industry.

It is promising then that South Africa signed a MOU on port state control in the Indian Ocean of 5 June 1998.[35] The signatories to the MOU are Djibouti, Eritrea, Ethiopia, India, Iran, Kenya, Maldives, Mauritius, Mozambique, Seychelles, South Africa, Sri Lanka, Sudan, Tanzania and Yemen. Other maritime authorities who meet the criteria of the Memorandum may join the agreement at a later stage. The aim of the MOU is to "prevent the operation of sub-standard ships while harmonising inspections and strengthening co-operation and the exchange of information".[36] The Indian Ocean MOU has set an annual required total of inspections at 10% of the estimated foreign ships entering the ports during the year. This figure is lower than other MOUs which generally set inspection rates at about 25%. However, the figure is perhaps more realistic when considering the infrastructure of the parties to the Memorandum and the fact that the imposition of levies can only overcome financial obstacles to a certain degree. They cannot rectify all the deficiencies in a particular port’s infrastructure.

Plaza’s concern for the uniformity of inspections is achieved through a checklist, entitled Form A — Report of Inspection in Accordance with Indian Ocean Memorandum of Understanding on Port State Control. The Form records the various vital statistics of the ship and lists those certificates that should be checked. In addition, there is a standard form for those ships that are detained. Although these reports do not stand independently as a seaworthiness certificate, they are a means of proving that a particular ship has already undergone an inspection at one of the ports which is party to the MOU. SAMSA authorities can also gain such information via an Internet site, which is accessible to SAMSA only. SAMSA’s policy is to avoid inspecting those ships that have undergone a similar inspection in the previous six months, unless there is an unusual suspicion that the ship remains unseaworthy. Again, these measures serve to prevent the possibility of multiple inspections of the same ship.

3.3. Discrimination:

As has been suggested, a key factor contributing to the feasibility of any port state control is the ability to discriminate between ships. Within the context of the regulation of human error, it is necessary to target those ships that are known to have unsafe crews. Indeed, the rationale behind the publishing of detention lists[37] and regional co-operation through MOU is to facilitate such targeting. The South African Maritime Safety Authority Levies Act makes express, although not exhaustive, provision for such discrimination by stipulating that levies need to be based on one or more of the following criteria:

(i) gross tonnage of ship;
(ii) category of ship;
(iii) category of cargo;
(iv) age of ship;
(v) nationality of ship;
(vi) frequency of port calls by ship.[38]

Such discrimination has not, however, always been permitted. UNCLOS, which gave the initial recognition to port state control, stipulated that the steps taken must be reasonable, public and not discriminatory. Subsequently, the 1982 Paris MOU[39] stipulated that port state control should be implemented "without discrimination as to flag". It also required that equal treatment be given to all states regardless of whether that state was party to the Memorandum or not.

However, the realities of shipping have led to later MOU having made allowance for discrimination "upon the basis of flag, age, type of vessel, loan owner, operator or even known classification society".[40] Despite these developments, it should not be taken for granted that such discrimination will be allowed in South Africa. One must first consider the effect of the entrenchment of the right to equality by section 9 of the Constitution of the Republic of South Africa.[41] Section 6(b) of the South African Maritime Authority Act recognises the predominance of the Constitution within the context of port state control by making reference to section 232 of the Constitution. That section states that "customary international law is law in the Republic unless it is inconsistent with the Constitution".

It is necessary, therefore, to make a determination as to whether the practice of targeting ships in a discriminatory manner for port state inspections is unconstitutional.

The right to equality has received considerable jurisprudential scrutiny by the Constitutional Court. An in depth discussion of these cases is beyond the scope of this paper. What can be said with some certainty is that the targeting of particular types of ships would be classified as discriminatory in terms of section 9. The relevant question is whether the discrimination is unfair,[42] as it is only in this case that the section is said to be violated. Although no precise test has been laid down in this regard, the case of President of the Republic of South Africa v Hugo[43] gives some guidance:

To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.[44]

This broad enquiry gives us the scope to take into account the fact that SAMSA is attempting to protect a broad range of interests, including those of the crew members, through its port state measures. The possible positive repercussions for the environment and the preservation of human lives point to the discrimination indeed being fair. Added to this is the fact that the power is not exercised in an arbitrary manner, but is designed to be regulated regionally by MOU and detention lists. In some sense, the focus on the nature of the power here mirror the concerns of Plaza that port state control must be underpinned by uniformity. In both cases there is a sense that port state control can be open to abuse and that, in order to be fair, it must be controlled in some way. It is submitted that the various structures that have been outlined in this paper do set the framework for a uniform and fair system of port state control. Thus, the targeting of ships for inspection, which is pivotal to the effectiveness of this system can be seen to be fair because it operates within an effectively regulated arena.

Even if the targeting procedures of SAMSA did fall foul of section 9, the action may still be saved by the limitations clause[45] of the Constitution. The enquiry here is ostensibly the same as the enquiry into fairness, and has generally been avoided by the courts in their section 9 analysis. However, it remains the final means by which the targeting of ships can be justified.

3.4. The Scope of Port State Intervention:

The financial implications of the port state control of human factors is also impacted by the degree to which SAMSA will be actively involved in the actual investigation of these factors. It is undesirable to place too much responsibility with SAMSA, due to both the cost involved and the delays that will result from in-depth investigations at every port. Again, we are dealing here with the tension that exists between global economic development and the safety of ships. It is encouraging then that there are factors that serve to decrease the burden upon SAMSA:

3.4.1 The ISM Code and STCW-95 focus on Self-Regulation:

The ISM Codes stipulates that a Safety Management System (SMS) must be established by "the Company", being that body which has assumed responsibility for the ship. The SMS must be designed to ensure complete compliance with all mandatory regulations, as well as taking account of the codes and guidelines of the IMO and other bodies. In addition, the Code outlines several functional requirements that focus upon the importance of training crew members both for the prevention or cure of emergencies. To this end, the Code stipulates that a policy must be implemented to give teeth to the SMS by providing the necessary resources and shore-based support.[46]

These procedures as outlined in the SMS are then recorded in a Safety Management Manual. This gives SAMSA something tangible to inspect when deciding whether or not to issue the Document of Compliance or the Safety Management Certificate. Important for the present discussion is the fact that the function of SAMSA is greatly reduced to merely an overseeing role, with the major responsibility being saddled with the company. Section 9 of the Merchant Shipping (ISM Code) Regulations stipulates that "no ship to which these regulations apply may proceed to sea from any port" unless the various certificates have been issued by SAMSA. Thus, although the responsibility to regulate the human factors may be given to the shipping company, the ultimate decision as to whether such regulation is sufficient lies in the hands of SAMSA.

The STCW-95 will extend the ambit of this self-regulation to all ‘Companies’. This is defined in Regulation I/1.24 as "the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed on the company by these regulations." The responsibilities of the Company are similar to that those outlined in the IMO Regulations. Important to note is Regulation I/8 which provides for uniformity through ‘Quality Assurance’. This requires the Company to set up a ‘quality standards system’ similar to the SMS which has the aim of helping to achieve the defined objectives of the Convention. Point 16.8 of SAMSA’s Form A for Port State Control makes provision for checking the resultant Safe Manning certificate.

4. Conclusion:

When these strings are drawn together, we see that an effective framework has been designed which allows for the port state control of human factors. It is thus submitted that the trend, which has been advocated by recent IMO meetings, could and should be implemented within the South African context. This would mean a boosted attempt by SAMSA to regulate human factors and thus to make real contributions to the safety of ships at sea. This paper has attempted to highlight those factors that are imperative to a feasible port state control. It should be noted, however, in the final analysis, that the various Regulations that have been outlined are extremely in depth. This paper is only a starting point and cannot even begin to explore the complexities of these Regulations and how they suggest that such regulation should take place. All that has been established is that an extended control of human factors is both desirable and feasible.