Port State Control: The Paris Memorandum of Understanding and the European Directive 2009/16/EC

Port State Control: The Paris Memorandum of Understanding and the European Directive 2009/16/EC

1 Introduction

Although compliance with the compulsory provisions of the Conventions and Codes previously considered ought to be enforced by the States in the registers of which the ships are registered, it has been established that a great contribution in this respect could be provided by the competent authorities of the ports at which the ships are calling during their operation. The first initiative worldwide to organise such control on an international plane was made with the adoption in January 1982 by the Maritime Authorities of 14 European States of an administrative agreement, named the Paris Memorandum of Understanding on Port State Control (the Paris MoU), pursuant to which they undertook to carry out inspections on board the merchant ships calling at their ports with a view to establishing whether they complied with the standards laid down in compulsory provisions of the principal instruments on safety of life at sea, maritime labour and protection of the environment adopted by IMO and ILO. As of 31 December 2013, 27 Maritime Authorities were signatories of the Paris Memorandum.¹ The purpose of the inspections is stated in the first paragraph of the introduction, which stresses the need ‘to increase maritime safety and the protection of the marine environment and the importance of improving living and working conditions on board ships’. Reference to the protection of the marine environment is also made in section 1(5), in which it is stated that port authorities must immediately inform the Authority of the port State or the coastal State, as appropriate, ‘whenever they learn … that there are apparent anomalies which may prejudice the safety of the ship, or which may pose a threat of harm to the marine environment’.

Similar regional Port State Control Agreements are at present in force in the Asia/Pacific Region,² the Latin America Region,³ the Caribbean,⁴ West and Central Africa,⁵ the Black Sea Region,⁶ the Mediterranean Region⁷ and the Gulf Region.⁸ A Directive on Port State Control was adopted on 23 April 2009 by the European Parliament.⁹ There follows a commentary of the Paris MOU and of the European Union Directive.

I — The Paris Memorandum of Understanding on Port State Control¹⁰

1 The Criteria for Adherence to the Memorandum

The first basic criterion indicated in section 9.2 of the Memorandum is geographic. Section 9.2 so provides:

A Maritime Authority of a European coastal State and a coastal State of the North Atlantic basin from North America to Europe, which complies with the criteria specified in Annex 5, may adhere to the Memorandum with the consent of all Authorities participating in the Memorandum.

Several other criteria are set out in Annex 5 to the Memorandum, entitled ‘Qualitative Criteria for Adherence to the Memorandum’, and among them it is worth mentioning paragraph 2 which provides:

Such Maritime Authority will have ratified all relevant instruments in force, before adherence shall be accomplished.

Of course, ratification is made by the State to which the relevant Maritime Authority belongs and the Memorandum binds the States to which the Authorities belong, as is made clear by Annex 11, which in its first heading refers to ‘Inspection commitments of Member States’ and then in the text of paragraph 1 sets out the ‘inspection commitments of each Authority’.

The ‘relevant instruments’ are enumerated in section 2 of the Memorandum which provides in section 2.1:

For the purposes of the Memorandum ‘relevant instruments’ are the following:

1. the International Convention on Load Lines, 1966 (LOAD LINES 66);
   
2. the Protocol of 1988 relating to the International Convention on Load Lines, 1966 (LL PROT 88);
   
3. the International Convention for the Safety of Life at Sea, 1974 (SOLAS);
   
4. the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS PROT 78);
   
5. the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS PROT 88);
   
6. the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, and as further amended by the Protocol of 1997 (MARPOL);
   
7. the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78);
   
8. the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG 72);
   
9. the International Convention on Tonnage Measurement of Ships, 1969 (TONNAGE 69);
   
10. the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) (ILO 147);
    
11. the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147) (ILO P147);
    
12. the Maritime Labour Convention, 2006 (MLC, 2006);
    
13. the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC1969);
    
14. Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC PROT 1992);
    
15. International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (AFS2001);
    
16. the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001;
    
17. the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM).

Such instruments apply to the extent to which they are in force in the State to which each Maritime Authority belongs. This is expressly stated in section 2.3:

Each Authority will apply those relevant instruments which are in force and to which its State is a Party. In the case of amendments to a relevant instrument each Authority will apply those amendments which are in force and which its State has accepted. An instrument so amended will then be deemed to be the ‘relevant instrument’ for that Authority.

2 The Organisational Structure of the Paris MoU

In section 7 of the MoU it is provided that a Committee would be established, consisting of representatives of each of the Authorities and of the European Union and that a secretariat provided by the Netherlands’ Ministry of Infrastructures and the Environment would be set up. From the Annual Report for 2013 it appears that the MoU has a President and a Secretary General, an Advisory Board whose task is to advise the Port State Control Committee consisting of delegates of the Maritime Authorities of the European Commission and of observers nominated by IMO, ILO and other MoUs and a Staff. There is also a Paris Secretariat and a Technical Evaluation Group.

3 The Ships to which the Paris MoU Applies

There does not appear to be too much consistency in the terminology used throughout the Memorandum and its Annexes. In section 1, reference is made to ‘foreign merchant ships’; in section 3, which deals with the reporting requirements, reference is made to ‘each ship’ and subsequently to ‘ship’; in section 4.1, reference is made again to ‘foreign merchant ship’ and then to ‘ship’; in section 4.2, reference is made to ‘foreign ship’; in the heading of Annex 1 reference is made to ‘ships of non-Parties’; in Annex 3.1 reference is made to the selection of ‘foreign flag ships’ and in other Annexes reference is mainly made to ‘ship’ or ‘ships’. Perhaps definitions might have been helpful. In any event it is suggested that the only basic distinction that must be made is between ‘ships’ and ‘foreign ships’, in that when the term used is ‘ship’ the provisions apply to all ships, of any nationality, including that of the State to which the relevant Authority belongs; while when reference is made to ‘foreign ships’ the intention is to refer to ships of any nationality except that of the State to which the relevant Authority belongs. The distinction between ships of States Parties and ships on non-Parties appears to apply only to the specific provisions in connection with which that term is used.

4 The Inspection Commitments of the Maritime Authorities¹¹

Section 1.3 states:

Each Authority will carry out an inspection on every foreign merchant ship of Priority I calling at one of its ports or anchorages, subject to the flexibility and regional commitment as described in Annex 11. Each Authority will carry out a total number of inspections of foreign merchant ships of Priority I and Priority II which corresponds at least to its annual inspection commitment determined in accordance with Annex 11. Authorities should refrain from selecting Priority II periodic inspections when these are not required in order to meet their annual commitment.¹²

Pursuant to Annex 11(1) the inspection commitments of each Maritime Authority are the following:

(a) to carry out an inspection on every ship calling at one of its ports and anchorages with a Priority I status; and

(b) to carry out a number of inspections on Priority I and Priority II ships which corresponds at least to its annual inspection commitment.

The basis of the priority is indicated in Annex 8(6) which states:

The selection scheme is divided into two priorities:

Priority I: ships must be inspected because either the time window has closed or there is an overriding factor.

Priority II: ships may be inspected because they are within the time window or the port State considers an unexpected factor warrants an inspection.

The ‘time window’ indicates the frequency of the inspections to which ships must be subject by the Maritime Authorities of the States members of the Paris Memorandum, that varies according to the risk profile of the ships, established on the basis of the criteria set out in Table 1 of Annex 7. Ships are consequently classified as ‘High Risk Ships (HRS)’, ‘Low Risks Ship (LRS)’ and ‘Standard Risk Ships (SRS)’. The time window is set out in Annex 8(6) as follows:

Ships become due for periodic inspection in the following time windows:

For HRS — between 5–6 months after the last inspection in the Paris MoU region.

For SRS — between 10–12 months after the last inspection in the Paris MoU region.

For LRS — between 24–36 months after the last inspection in the Paris MoU region.

5 The Duties and Powers of the Port Authorities when Deficiencies are Detected

Section 3.4 provides that Port Authorities will endeavour to secure the rectification of all deficiencies that have been detected. A distinction is then made between deficiencies which are or are not ‘clearly hazardous to safety, health or the environment’. In the negative, on condition that ‘all possible efforts have been made to rectify the deficiencies’ the ship may be allowed to proceed to another port where they can be rectified; in the affirmative the Port Authority will, ‘except as provided in 3.8’, ensure that the hazard is removed ‘before the ship is allowed to proceed to sea’.

Since even if the deficiencies are not hazardous, it is required that all possible action be made to rectify them, there will be situations in which the requirement that they be removed will be impossible to comply with. This is precisely what section 3.8 considers in the first place, since it provides that where the deficiencies cannot be remedied in the port of inspection, the Maritime Authority may allow the ship to proceed to the nearest appropriate repair yard available. Since, where all possible efforts have been unsuccessful in rectifying the deficiencies, the conclusion must be that the deficiencies cannot be remedied in the port where the ship lies, it may appear questionable whether a distinction between hazardous and non-hazardous deficiencies was really necessary. But that solution has probably been chosen since in section 3.8 there are included other specific situations, the first relating to the decision to send the ship to a repair yard due to lack of compliance with IMO Resolution A.1049(27)¹³ and the