M EMORANDA OF U NDERSTANDING ON P ORT S TATE C ONTROL (MOU S ) AND MOU R EGIMES

4. M EMORANDA OF U NDERSTANDING ON P ORT S TATE C ONTROL (MOU S ) AND MOU R EGIMES

MOUs are a series of regional agreements which have a responsibility to ensure compliance with the requirements of international maritime conventions such as those set out by the UN and IMO. MOU regimes are agreements between states which aim to enforce the requirements of the different conventions through the use of vessel inspections, vessel detention, and by ensuring that any remedial work is carried out at the earliest possible opportunity to make vessels comply with the conventions.

Port State Control is a system under which foreign flagged vessels entering a port may be inspected by appointed agencies to ensure that they comply with all relevant international conventions. Inspections, which should normally cause no undue delay to a vessel, are used to ensure that all statutory certificates (for the vessel, its equipment and its crew) are available and are up to date. They can also examine the vessel to ensure that there are no deficiencies with its structure or equipment that would make it unsafe for it to travel to its next port of call or identify where there is a risk of the vessel polluting the sea during its normal operations. A range of selection criteria used to identify which vessels should be inspected, together with more detail on PSC inspections, is provided in Section 4.2.

A major advantage of the MOU agreements is that, when a foreign flagged vessel enters a port within its region, and then sails on to other ports in the same region, the MOU regime

can provide a coordinating body to monitor and track a vessel‟s activities. The result of this is that it helps identify substandard vessels and can also act as a disincentive for intentional pollution by the vessel‟s crew since there is a high risk that such pollution can be identified

and even a suspicion of it taking place can result in even more thorough inspections while it is in a MOU region port. It should also help reduce the risk of accidental pollution incidents by identifying vessel deficiencies. While it is the responsibility of a flag state to ensure that vessels flying its flag meet all the international standards set out in IMO and other Conventions, it is often only when a vessel enters a port state and is inspected that deficiencies are identified and action taken to ensure that these are dealt with.

Between January 1982 and June 2005, nine MOU Regimes were established around the globe and cover all the world‟s oceans 40 . An overview of the geographical coverage of the

MOU regimes, in order of their establishment and including details of signatories to the agreements, appears in Table 4. While the United States is not a signatory to any of the MOU regimes, it does hold observer status with both the Tokyo and Black Sea MOUs and also conducts its own port state control activities and inspections under the aegis of the US Coast

Guard 41 .

40 Additional information is available from the websites of the individual MOU Regimes. The websites are: Paris MOU - http://www.parismou.org/ Acuerdo de Viña del Mar - http://200.45.69.62/ Tokyo MOU - http://www.tokyo-mou.org Caribbean MOU - http://www.caribbeanmou.org/ Mediterranean MOU - http://www.medmou.org/ Indian Ocean MOU - http://www.iomou.org/ Abuja MOU - http://www.abujamou.org/ Black Sea MOU - http://www.bsmou.org/ Riyadh MOU - http://riyadhmou.org/

41 Details of United States Coast Guard port state control activities are available online at:

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Table 4. Overview of Regional MOU Regimes in chronological order of establishment

MOU MOU Region

Signatory Maritime Authorities at July 2010

Regime Date Europe and Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland,

Jan North France, Germany, Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Paris MOU 1982 Atlantic Netherlands, Norway, Poland, Portugal, Romania, Russian Federation,

Region

Slovenia, Spain, Sweden and United Kingdom

Acuerdo de Viña del

Nov Latin American Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, Honduras, Mar

1992 Region

Mexico, Panama, Peru, Uruguay and Venezuela Members : Australia, Canada, Chile, China, Fiji, Hong Kong (China),

Tokyo Dec Asia-Pacific Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Papua New MOU

1993 Region Guinea, The Philippines, Russian Federation, Singapore, Thailand, Vanuatu, Vietnam. Observers : Macao (China), Democratic People‟s Republic of Korea, Solomon Islands, United States of America Members: Antigua & Barbuda, Barbados, Belize, Dominica, Grenada,

Caribbean Feb Caribbean Guyana, Jamaica, the Netherlands Antilles, Suriname and Trinidad & MOU

1996 Region Tobago. Observers : Anguilla, British Virgin Islands, St. Kitts & Nevis, St. Vincent & The Grenadines, Turks & Caicos Islands

Mediterran July Mediterrane Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Tunisia, ean MOU 1997 an Region Turkey and the Palestine Authority

Indian Ocean

June Indian Australia, Bangladesh, Djibouti, Eritrea, Ethiopia (Observer), India, Iran, MOU

1998 Ocean Kenya, Maldives, Mauritius, Mozambique, Oman, Seychelles, South Africa, Region

Sri Lanka, Sudan, Tanzania and Yemen

West & Abuja

Oct Central Angola, Benin, Cameroon, Cape Verde, Congo, Cote d‟ Ivoire, Gabon,

MOU 1999 African Ghana, Guinea, Equatorial Guinea, Liberia, Mauritania, Namibia, Nigeria, Region

Senegal, Sierra Leone, South Africa, The Gambia, and Togo Black Sea April Black Sea Members: Bulgaria, Georgia, Romania, Russian Federation, Turkey and

MOU 2000 Region

Ukraine. Observer: United States Coast Guard

Riyadh June Arabian Gulf United Arab Emirates, Kingdom of Bahrain, Kingdom of Saudi Arabia, MOU

2005 Region Sultanate of Oman, State of Qatar and State of Kuwait NOTE: The date in column 2 is the month and year when the MOU was initially finalised, although the

agreements have been amended and additional states have signed up to them at later dates.

In the case of the Tokyo MOU, one of the main seafaring states that had not signed a memorandum of understanding at September 2010 to become a member of that body, and which also does not hold observer status, is Taiwan. In 2003 Taiwan established its own PSC inspection regime, with appropriately trained and certified inspectors in each of its major international ports. Inspectors will normally have held a senior rank (e.g. Master Mariner, Chief Engineer), or have held a lower rank but worked on vessels which operate internationally. As this example illustrates, it is not necessary that a state signatory to international conventions and required to undertake PSC inspections should also be a member of an MOU regime.

Many international conventions contain a requirement that PSC inspections are carried out on foreign flagged vessels to ensure both vessel and crew safety, and to help reduce the

http://www.uscg.mil/hq/g-m/pscweb/index.htm

80 Angela Carpenter

risk of intentional and accidental marine pollution. The first five conventions which appear in Table 5, together with their amendments and Protocols, have been examined in Section 3.3. Four further IMO Conventions requiring inspections are identified in Section 2, Relevant

Instruments, of the Paris MOU Agreement 42 . These are summarised below:

 TONNAGE 1969 was originally introduced as a universal tonnage measurement system. It provides gross and net tonnages for cargo vessels by calculating the

volume of all enclosed spaces on a ship (gross tonnage) and the volume of all cargo spaces of a ship (net tonnage), with gross tonnage being used to calculate manning levels, safety rules and port fees, for example.

 CLC 1969 sets out how compensation is to be paid for damage caused by oil spills from ships which carry more than 2,000 tons of oil as cargo, with most other vessels not being covered by the Convention. Its subsequent Protocols and Amendments mainly set out the monetary value of compensation, including compensation for environmental damage and the cost of reinstating contaminated environments. It

makes a shi p‟s owners liable for any damage caused and also requires them to maintain adequate levels of insurance equivalent to the monetary value of the loss of the ship and its cargo.

 AFS 2001 is concerned with prohibiting the use of anti-fouling paints on ships. These paints are particularly hazardous to the marine environment, with many containing harmful chemicals such as organotin compounds - organic compounds based on tin

such as tributylin (TBT) which can be sprayed on ship‟s hulls to control the growth of barnacles, algae and other organisms. Chemicals such as TBTs can leach into the

marine environment and can be extremely toxic to marine life. Only 45 states had ratified AFS 2001 by June 2010 out of 169 Contracting States to the IMO Convention.

 BUNKERS 2001 is modelled on CLC 1969. It covers vessels not included under that convention and aims to ensure that adequate, prompt and effective compensation is available for damage to a state ‟s territorial seas or EEZ as a result of oil spills from

ships‟ bunkers (or fuel tanks). The owners of ships over 1,000 gross tonnage are required to have mandatory insurance to cover the costs of any pollution incidents.

The final convention appearing in Table 5 is a convention of the International Labour Organisation (ILO), the UN specialized agency which seeks to promote social justice and

internationally recognised human and labour rights. ILO Convention C147 of 1976 43 and its Protocol of 1996 set out to ensure the safety of seafarers, particularly those working on

substandard vessels and which are registered under flags of convenience. It is applicable to the vast majority of sea-going vessels, with limited exclusions including sailing vessels, fishing and whaling vessels and some other small vessels. It requires those states which have ratified the Convention to have in place regulations or laws for ships that are registered in that state, and sets out that those regulations or laws should cover aspects such as safety standards,

42 Relevant Instruments list available from the Paris MOU website. Available online at: http://www.parismou.org/ParisMOU/Organisation/About+Us/Instruments/default.aspx

43 Convention C147 Merchant Shipping (Minimum Standards) Convention 1976 of the International Labour Organization. Full text available online at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C147

International Protection of the Marine Environment

hours of working, and the provision of adequate social security for crew members. ILO C147 is open for ratification by states which are also parties to SOLAS, LL and COLREG.

In the case of vessel inspections conducted under the aegis of the Paris MOU, specific Appendices of ILO C147 are identified as requiring vessel inspections and these sections are:

 Minimum Age Convention, 1973 (No. 138);  Minimum Age (Sea) Convention (Revised), 1936 (No. 58);  Minimum Age (Sea) Convention, 1920 (No. 7);  Medical Examination (Seafarers) Convention, 1946 (No. 73);  Prevention of Accidents (Seafarers) Convention, 1970 (No. 134, Articles 4 and 7);  Accommodation of Crews Convention (Revised), 1949 (No. 92);  Food and Catering (Ships‟ Crews) Convention, 1946 (No. 68, Article 5); and  Officers Competency Certificates Convention, 1936 (No. 53, Articles 3 and 4).

The Paris MOU also has a responsibility to ensure vessel compliance with a range of EU Directives and Regulations in the area of Marine Safety. Examples of these measures include:

 Directive on requirements for vessels carrying dangerous of polluting goods (93/75/EEC and amendments)  Directive on common rules and standards for ship inspection (94/57/EC and amendments)  Directive on Port State Control (95/21/EC and amendments)

 Directive on safe loading and unloading of bulk carriers (2001/96/EC)  Segregated ballast oil tankers: tonnage measurements (Regulation (EC) No. 2978/94)  Safety management of ro-ro passenger vessels (Regulation (EC) No. 3051/95 as

amended)

 Directive on mandatory surveys of ro-ro ferry etc. (1999/35/EEC and amendments)  Directive on marine equipment (96/98/EC and amendments)  Directive on safety rules and standards for passenger ships (98/18/EC and

amendments)  Directive on registration of persons sailing on board passenger ships etc. (98/41/EC and amendments)  Directive on port reception for ship-generated waste and cargo residues etc.

(2000/59/EC) – previously discussed in Section 3.3.3.

Similarly, signatories to the Mediterranean MOU and Black Sea MOU that are also EU Member States will also have to ensure compliance with relevant EU Directives which may

be applicable to the whole of the EU or for a specific region such as the Mediterranean. In the case of other MOU regimes such as Tokyo MOU, Caribbean MOU, there will similarly be a range of regional agreements, treaties or regulations for which port state control inspections will be required and which will be conducted by the inspectors for that regime.

82 Angela Carpenter

4.2. Ensuring Compliance through Vessel Inspection

In order to ensure that vessels comply with the requirements of the various Conventions and other legal instruments, a system of vessel inspections is in place for each MOU Regime. Each MOU regime sets out a minimum number of vessels to be inspected each year. In the case of the Paris MOU, this is 25% of the estimated number of foreign flagged merchant ships entering a member state ‟s ports. The level of vessel inspections differs widely between the different MOU regimes, with the Tokyo MOU indicating that it will endeavour to inspect 80% of the total number of ships operating within its region each year (both foreign flagged and MOU member flagged vessels), while the Indian Ocean and Riyadh MOUs specify 10%. Of the other MOUs, Viña del Mar specifies 20% and the Mediterranean, Abuja and Black Sea regimes specify 15%.

Vessel inspections are conducted by recognised organisations or private bodies which are able to carry out surveys and issue or verify Certificates such as those required under SOLAS, MARPOL etc. discussed previously. In the example of the Paris MOU, inspections in the United Kingdom are conducted by the Maritime and Coastguard Agency while in Sweden they are conducted by the Swedish Maritime Authority. In the example of the Tokyo MOU region, inspections in China are conducted by its Maritime Safety Authority. The case of Taiwan with its own PSC inspection system separate from the Tokyo MOU has been discussed previously.

Vessels are selected for inspection under a set of criteria which are normally set out in the text of the MOU. The Paris MOU provides a comprehensive list of criteria and target factors

for selecting vessels for inspection and the full list is available in the MOU Text (2009 44 , Annex 1, Section 1, page 2) and there is a degree of similarity between the various MOU

regimes. Table 6 sets out the most common selection criteria for identifying vessels for inspection but excludes the Caribbean and Black Sea MOUs for which this information is unavailable.

The use of selection criteria such as those set out in Table 6 have the advantage of reducing the opportunity for vessel owners or captains to claim that they have been unfairly targeted in a port or region.

Vessels can be inspected in a port and may be detained for rectification of any deficiencies identified during those inspections and where the vessel is deemed unsafe to travel on to its next port of call. Vessels with more minor deficiencies may be allowed to proceed but will be given a deadline by which any repairs should be undertaken and can then

be inspected once that deadline has elapsed and the next time it enters a member state ‟s port, to ensure that work has been undertaken. The Paris MOU provides details of its Port State

Control inspection procedures 45 which identifies as a minimum requirement the examination of some 46 different certificates (as they apply to the type of vessel being inspected), and

these include certificates covering safety equipment and radio equipment, showing that the vessel is in compliance with the requirements of SOLAS, and has an International Ship

44 Paris Memorandum on Port State Control (2009). Full Text of the Paris MOU, including its 31st Amendment,

adopted 21 May 2009 (effective date: 1 July 2009) is available online at: http://www.parismou.org/ParisMOU/ Organisation/Memorandum+of+Understanding/xp/menu.3945/default.aspx

45 Paris MOU – Port State control inspection procedures. Available online at: http://www.parismou.org/ParisMOU/

Organisation/About+Us/Inspection/xp/menu.4424/default.aspxhttp://www.parismou.org/ParisMOU/Organisati on/About+Us/Inspection/xp/menu.4424/default.aspx

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Security Certificate, a Minimum Safe Manning Document and Medical Certificates. Additionally, inspections will examine the vessel to check its engine room, crew accommodation and other areas to ensure they meet the standards set out in the relevant certificates.

Table 5. International Conventions against which ships may be inspected for compliance

Main International Conventions for Compliance Inspection n

ar M

n nean cea

ea ea O MOU Regime

kyo ribb editerra ack S yadh

To Ca M Indian Abuja Bl Ri Load Lines (LL 1966)

Paris

Viña del

/ / / / / / / / / Load Lines 1988 Protocol

/ / / / Safety of Life at Sea 1974 (SOLAS 1974)

/ / / / / / / / / Safety of Life at Sea 1974, Protocol of 1978

/ / / / / Safety of Life at Sea Protocol of 1988

/ / / / Prevention of Pollution from Ships 1973, and Protocol of 1978 / / / / / / / / / (MARPOL 73/78) Standards of Training, Certification and Watch Keeping for / / / / / / / / / Seafarers 1978 (STCW 1978) Regulations for Preventing Collisions at Sea 1972 (COLREG / / / / / / / / / 197272) Tonnage Measurement of Ships 1969 (TONNAGE 1969)

/ / / / Merchant Shipping (Minimum Standards) Conv.1976 (ILO /

/ / / / / / / 147) and Protocol of 1996 Civil Liability for Oil Pollution Damage 1992 (CLC 1992)

Control of Harmful Anti-Fouling Systems on Ships 2001 (AFS /

/ 2001) Civil Liability for Bunker Oil Pollution Damage 2001 /

/ (BUNKERS 2001) NOTE: Blank cells indicate where Memorandum of Understanding does not explicitly state that all

amendments and protocols to the relevant instruments will be adhered to

Deficiencies against which vessels can be detained include: lack of necessary certificates or out of date certificates on board; structural problems with the vessel including corrosion or cracks in the vessels hull; deficiencies in equipment such as fire suppression systems or damaged cargo hatches which may affect the vessel‟s buoyancy in the event of bad weather

(as outlined in the LLC discussed in Section 3.3.1); out of date equipment; and the failure to adequately undertake operational drills such as fire drills or abandon ship drills where an inspector witnessing those drills sees that the crew does not understand what they should do.

As noted in Section 3, when looking at the number of states which have ratified the various IMO (and ILO) Conventions and the coverage of those states in terms of world shipping fleet tonnage, the vast majority of vessels entering ports should already be adhering to the terms of those conventions.

84 Angela Carpenter

Table 6. Main Selection Criteria and Target Factors for Vessel Inspections by MOU Region

MOU Region

Most common selection criteria set out in MOU

ar M

nean cea

documents for selection of vessels for inspection.

Inspections should take place where the vessel:

kyo editerra yadh Paris Viña del

To M Indian Abuja Ri has been reported by pilots or the Port Authority as having

1 / / / / / deficiencies prejudicial to safe navigation

is carrying dangerous or polluting goods where all relevant information (e.g. ships particulars, movements, types of

Selection

dangerous goods) have not been fully provided Criteria for is subject of a report/notification by another Authority

Inspections

is subject of a report or complaint by the master, a crewman or other relevant persons unless any such report has been

deemed to be unfounded has been suspended or withdrawn from its class for safety reasons in the last 6 months

6 / / / / has not visited port in a member state of an Agreement

within last 12 months, or where data on the vessel is not

1 / / / / available from regional database

has not been inspected by any Authority within the last 6

Target

2 / / / / / / Factor for inspection) conducting has statutory certificates on construction and equipment that inspections have been issued by an organisation not recognised by the

months (which can be less if there are clear grounds for

MOU authority (or not issued in accordance with relevant 3 / / / instruments) has been permitted to leave port with deficiencies under

5 / / / / / certain conditions*

Despite measures taken over many years, there are still a small minority of vessels, some sailing under flags of convenience but also some sailing under the flags of countries that have ratified conventions, that continue to hold invalid or out of date certificates, that fail to meet the required standards for their crewmen, and that have significant deficiencies with either the vessel itself of the equipment on board. To illustrate this, three examples of deficiencies identified by Paris MOU inspections in the first 9 months of 2010 are outlined below:

 Vessel 1: Panama-registered Chemical Tanker – 15 deficiencies of which 9 resulted in 4 days detention. Included operational deficiencies with MARPOL, lifeboats not

ready to use, problems with fire safety equipment, electrical equipment, radar, and out of date charts

 Vessel 2: German-registered Passenger Ship – 17 deficiencies, 8 of which resulted in

9 days detention. Included a range of fire safety issues, problems with life-saving appliances, out of date charts, and a lack of emergency lighting

 Vessel 3: Bulgarian-registered Bulk Carrier – 17 deficiencies, 7 of which resulted in

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9 days detention. Included life saving appliances, load lines issues, abandon ship drill, structural safety with corroded beams and floors, missing documentation.

Approximately 70 ships were also banned from entering the region‟s ports in September 2010. These vessels sailed under the flags of countries around the world including Turkey, Cambodia, Sierra Leone, Panama, Nigeria, Tonga and the Russian Federation. All of these

vessels had either failed to call into a specified repair yard, had multiple detentions which had not been adequately dealt with, had invalid certificates or had previously jumped detention.

4.3. Summary

This section has set out how a system of vessel inspections (PSC) and inspection regimes (MOUs) play a key role in helping to ensure that a range of international conventions are correctly adhered to by vessels sailing all around the globe. However, despite this, there is evidence that substandard ships continue to operate around the globe and to enter the ports of MOU regime member states. However, even for those vessels which fully adhere to all the relevant legislation, hold all the correct certificates and are fully up to standard in terms of the vessel, its equipment and its crew, it is important to understand that once a vessel sails into international waters, or outside specific limits set for certain types of pollution, such as the example of sewage from ships set out in Annex IV of MARPOL (see Table 3), then are still able to discharge wastes into the marine environment, should they choose to do so.