Shipping is the most
international business in the world. It cannot operate globally under any
unitary regulatory control of an individual state. It has to comply with common
standards developed at international forum; and that forum is now IMO –
International Maritime Organization, a specialized agency of the United
Nations.
However, IMO is not an
international government. It cannot enforce any compliance. That has to be done
by the Member States. Once the common standards are adopted on the floor of IMO
in the shape of an international convention, it is now for the Member States to
accept those conventions by becoming parties to the conventions. It then
becomes the legal and moral obligation of the relevant state to transpose the
provisions of such conventions into national legislation - that is to give
force of law within its jurisdiction. The Member State will then enforce it
within their jurisdiction as part of their national law.
Every sea-going ship has to be
registered in a country to fly its flag. Through the process of registration it
gains its identity. The certificate of registry will have its name, port of
registry, flag, IMO number, call sign, MMSI number, dimension and tonnage, name
of the owners etc. In old days it was customary to have the name of the master
endorsed on Certificate of Registry but it is not necessary now. It is also not
necessary to show financial status with respect to any mortgage because the
transcript of the ship (obtainable from the registrar) will clearly show this
information.
A ship registered in Pakistan
will be referred to as a Pakistani ship and shall fly its flag. This ship will
comply with Pakistan rules and regulations for maritime and shipping, no matter
where the ship is. In addition, when in a foreign port, the ship shall also
comply with the requirements of the host state. This is why the ship flies a
courtesy flag of the port state. Hopefully the statutory requirements will be
similar as both flag state and the port state will have their requirements
derived from common IMO conventions.
By now it is clear that every
state will have two different modes of control and enforcement - one as Flag
State on its own ships and the other as Port State on visiting foreign ships.
Together they create a safety net that rogue ship-owners and sub-standard ships
cannot dodge. The port state control (PSC) must be exercised as a hand of
cooperation to the flag state. Supposing we board a German ship in Pakistan to
exercise Port State Control the underlying message to German Administration
will be “Don’t worry, we will ensure safety compliance on your behalf. Your
lives are equally important as ours. We will do everything that you would have
done”. It is very important to impose equal standards (to own ships as well as
foreign ships) so that none can blame you for double standards.
There is another big question.
Can a flag state think that it need not comply with the requirements of a
particular convention because the state is not a party to the said convention?
No, because its ships will be subjected to those requirements when it enters
the jurisdiction of a port state that is a party to that convention. This is
because the convention requires every party state to enforce the requirements
without any favorable treatment to a ship from a non-party state. If a ship is
to trade freely around the world it has to comply with the requirements of all
conventions in force. It is better to be an active player than sitting on the
sidelines – I mean it is better to become a party to the convention if, in any
case, I have to meet the requirements. There is no way to operate a
sub-standard ship on the plea of not being a party to the convention.
During the Port State Control the
inspector should explain all deficiencies in a manner that ship can get them
rectified. In case of serious deficiency, conditions should be attached for
their rectification within a given period. The authorities at next port of call
may be alerted where necessary. Ship may be detained only – “when allowing the
ship to proceed to sea may mean serious threat to life, property or
environment”. Such ships must remove all defects and deficiencies before being
allowed to proceed to sea.
Port State Control inspectors
should always remember to make correct reference to each and every deficiency.
Such references may normally relate to international conventions for common
understanding of all concerned. However, in respect of detention, it is very
important to make reference to provisions of national law. This is because if
the ship-owner wants to challenge the detention (through local agents) the
court shall go by the law of the land.
Another thing must be clearly
understood. Detention is not arrest. A ship may be arrested against claims only
on the order of a court. It got nothing to do with the safety standard of the
ship. Detention is an administrative/ executive function of the Administration
and cannot be linked with any commercial outcome. That is why port authority cannot conduct Port State Control (because
the port authority collects charges for extra stay, even if it is due to
detention). It is done by the Administration of the State to which the port
belongs.
Now we shall focus on Memorandum
of understanding which stands for Memorandum of Understanding. There is no
reference to any Memorandum of understanding in any of the international
conventions. Such Memorandum of standings are normally signed by a group of countries
in an area/ region. It is to coordinate Port State Control inspections in a
rational way so that unnecessary repetitions can be avoided. It also keeps
Member States informed of status of ships visiting the area so that more
specific actions can be taken against rogue ship-owners and sub-standard ships.
Paris Memorandum of standing puts together a large number of European States
and this has made life difficult for substandard ships to operate in Europe.
Similarly Tokyo Memorandum of standing together a number of states in the
Far-East. It is not a must for states to
join some Memorandum of standing. Every sovereign state can exercise its inherent
right independently. However, Memorandum of understanding allows regional
countries to share each other’s experience to work together for common goals.
Memorandum of understandings utilise common forms and coding system. It is
interesting to note that United
States has not joined any
Memorandum of understanding. They conduct Port State Control on foreign ships
through their Coastguard. Canada is a member of both Paris and Tokyo Memorandum
of understandings (Paris Memorandum of understanding for Atlantic coast and
Tokyo Memorandum of understanding for Pacific coast).
Finally we shall talk about Classification
Societies/ Recognized Organizations. They are like independent standard
institutes. A ship remains classed with a Society so long it meets the laid
down standards. In the charter market it matters a lot if the ship is classed
with a reputable society. Because these societies are fair and independent,
many flag states delegate lot of statutory survey, audit and certification with
them. It must be clearly understood that only functions can be delegated and
not the responsibility. It is for this reason that flag state must retain a
supervisory role to ensure proper compliance of statutory functions. Because Classification Societies would not
like to displease their clients, Port State Control cannot be exercised by
Class Societies.
Classification was never a
compulsory requirement. Now it has become. Though SOLAS, LL and MARPOL give lot
of requirements yet, it does not provide a complete code for construction of
ships. Classification Societies also have requirements relating to inspection
of every part, component and equipment at least once every five years. IMO has
finally done something sensible by introducing in SOLAS-74 Part-A1 Reg. 3-1
that a ship to which the Convention applies shall be designed, built and
maintained, including its mechanical and electrical components, in compliance
with the requirements of a recognized organization.
In Pakistan, Director General of
Ports & Shipping is the focal point of U.N. International Maritime
Organization, thus incumbent on them to participate in Maritime Safety
Committee meetings twice a year and Assembly too, enable remain aware of new
convention of IMO and ratify them through MOFA note of verbally. Pakistan has
yet to ratify many IMO conventions.
