FLAG, COASTAL & PORT STATE CONTROL
Closing the Net on Unseaworthy Ships
and their Unscrupulous Owners
John Hare - Shipping Law Unit Institute of Marine Law
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The sea is its own master. It is frighteningly unforgiving and it gives few second chances.
What follows must be seen in the image of the the immense power of the sea ... for it is that power which dictates the criteria which seafarers must apply in setting standards and norms for the operation of ships.
The grim toll of last winter at the Cape of Good Hope - 36 lives lost with the sinking of the bulk carrier APOLLO SEA; another 24 with the sinking without trace of the IRON ANTONIS; a VLCC and a bulk carrier very badly damaged at sea; and three strandings, one of which resulted in the total loss of a crane barge valued at over $80 million - has once again put into stark relief the importance of the steps the international maritime community is taking to achieve a more acceptable level of safety at sea by the ships of all nations.
It is perhaps no coincidence that two of these casualties, the APOLLO SEA and the SAN MARCO, were 17 and 21 years old respectively. And it is little comfort for the dependents of the APOLLO SEA crew, and the Cape Town community which faced the worst oil pollution yet to occur on their beaches, to hear that the APOLLO SEA was the 90th bulk carrier lost in the past 6 years.
Recent worldwide losses were not limited to cargo ships: the ACHILLE LAURO, built in 1947, caught fire and sank last month in the Indian Ocean - fortunately in calm seas with all but 4 of the 900 passengers and crew on board being rescued by other vessels. 1947? The ship, fully certified for carrying passengers on luxury cruises, was close on 50 years old. So was the OCEANOS, which sank in a bad storm off the South African coast in 1992. Miraculously not a life was lost, due largely to the heroic rescue of over 600 souls by SA Airforce helicopters in appalling conditions.
Younger, but by all indications outdated in certain aspects of her safety design was the ESTONIA, which sank in the Baltic with dreadful loss of life in October last year. The OBO MARIKA 7 sunk without trace in the South China Sea, there were ferry disasters in the Philippines and Bangladesh ... the tragedy is a seemingly endless chapter.
The Cape of Good Hope is particularly vulnerable as what could euphemistically be called a "maritime blind corner" on a busy searoute - although the SA experience is not altogether out of line with that of other coastal states in areas of marine traffic congestion. The English Channel, the Straits of Malacca, the US gulf to name but a few, are faced with similar problems. But the Cape has a sometimes catastrophic combination of a large number of passing ships and stormy weather with very heavy swell conditions - not to mention the so-called "freak waves" for which the eastern SA seaboard is notorious. And by an inexplicable legal fiction, its waters are nevertheless classed as a permanent "Summer Zone" for loadline purposes - entitling vessels to pass the South African seaboard even in mid- winter in a laden condition generally only permitted during the summer.
World ship losses continue to increase annually: For each of the years 1992, 1993 and 1994, there have been close on 100 ships lost at sea [These are the official statistics of the Institute of London Underwriters: cf. the higher figures of the EC report in February 1993 which gives annual losses of about 230 ships a year. See Clarke: Port state control or substandard ships: who is to blame? What is the cure? LMCLQ 1993]. In these and other casualties, over 1 500 lives were lost. The economic loss of these vessels and their cargoes is inestimable: The pollution arising from the grounding of the EXXON VALDEZ, the most costly marine mistake to date, has generated claims now topping $5 billion. And the loss of life is as appalling as it is unnecessary and indefensible.
Yes, people do care - but often with decidedly misdirected priorities. The greatest catalyst of public outcry is oil pollution. The man in the street can come to terms with and is outraged by the mess on his beach following a maritime casualty. Oilstained penguins are tangible and visible. The loss of the TORREY CANYON resulted in the deaths of an estimated 30 000 seabirds. The APOLLO SEA pollution involved the rescue of more than 8 000 seabirds and befouled Cape Town's premier tourist beaches. But the tragic loss of life which all too often accompanies the pollution, is relegated to small print by much of the media in its quest for the most newsworthy elements of a marine disaster - and remains sadly invisible. The reality is that any marine disaster, with or without loss of life or pollution of whatever kind, is an unwelcome addition to already dreadful statistics.
What is the maritime community doing about it?
What is the international maritime community doing about this manifestly unacceptable and lamentable state of affairs? And what can coastal authorities themselves do to help remedy a situation which can have such a serious impact on their coastline and their economies?
Perhaps one should recognise at the outset that the shipping world has sat up and taken notice. We see that there are a number of initiatives, driven from within the industry, by NGO's and governments of coastal states, all designed to address the malaise.
The most positive recent development yet was itself borne of disaster: following the loss of the tanker BRAER and her cargo of 84 700 tonnes of crude oil off the Shetland Islands in January 1993, the UK government appointed an Enquiry into the prevention of pollution from merchant shipping. That the commission saw its mandate in broader terms has been welcomed by the shipping industry, and its report published in May 1994 as "Safer Ships, Cleaner Seas" is a landmark document which should be carefully studied by our maritime authorities. The report deals fully with the state of the international shipping industry and makes many recommendations, designed to form the backbone of future maritime policy in Britain. The Report endorses the enormous efforts of the International Maritime Organisation (IMO) which is seeking uniformity and cohesion in international efforts to pull shipping back from what has been widely perceived as the brink of disaster. And it echoes the "Ships of Shame" Report compiled by the Australian maritime authorities after the KIRKI casualty.
All coastal states - especially those like SA with extensive and particularly vulnerable coastlines - need to ask themselves if their maritime authorities have enough muscle to flex, and if they are making full use of those powers. There are two issues here - the first being supervision and control of one's own fleet, and the second being the regulation of traffic and policing of foreign flagged ships which use one's waters.
Can the Law provide the tools for the job
To do the job, the coastal authorities need to rely upon two tools: their own "domestic" law, and international law.
Domestic SA law consists of statutes passed by parliament (and regulations promulgated under the authority of those statutes) and the country's common law - comprising mainly decisions of the courts and the writings of jurists.
But all states need also to rely upon a perhaps more significant body of law to come to grips with the problem of the sub-standard ship: the International Law of the Sea.
International law comprises treaties between states, often expressed as Conventions to which states may voluntarily bind themselves by ratification or accession, and international customary law, a bit like the common law of an individual country, and requiring widespread adherence by a significant number of states.
The two systems - domestic law and international law - complement each other, and to the extent that the SA is a party to any international convention or treaty, its domestic laws should give substantial effect to the international law contained in it. Reliance on international law carries with it also a duty to observe it.
International law is the source, for example, of the following "safety conventions":
1. The Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), 1972
2. The International Convention for the Safety of Life at Sea, 1974 (SOLAS) with its protocol of 1978 and its 13 amendments
3. The International Convention on Load Lines, 1966 and its protocol of 1988
4. The International Convention for the Prevention of Pollution from Ships (MARPOL), 1973 with its protocol of 1978
5. The International Convention of Standards of Training, Certification and Watchkeeping for Seafarers, (STCW), 1978
6. The International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969
7. The International Convention relating to Intervention on the High Seas in cases of Oil Pollution (THE INTERVENTION CONVENTION), 1969 (and its protocol relating to pollution by substances other than oil)
8. The Salvage Convention, 1989
9. The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (THE FUND CONVENTION), 1971
10. The Convention on Limitation of Liability for Maritime Claims, 1976
11. UN Convention on the Conditions for the Registration of Ships, 1986
These Conventions, and the use of their powers, operate to an extent subject to the United Nations Convention on the Law of the Sea, (UNCLOS), 1982 of which SA is a signatory, but which it has yet to ratify. UNCLOS came into effect on 16 November 1994.
[It is interesting to note that the USA is not yet a signatory to UNCLOS 1982. It was however a signatory to the 1958 Geneva Conventions on the law of the Sea. And it would in all likelihood give recognition to UNCLOS 1982 (minus the seabed provisions) as being close to a compendium of current international maritime customary law In fact President Reagan made such a formal declaration in his statement of United States Ocean Policy when claiming the USA's EEZ [see Schoenbaum 2-2; Burke International Law of the Sea Introduction p. xxiii)].
Apart from the enactment of some of the safety conventions into SA statute law, SA has a parcel of "stand-alone" legislative measures and sources dealing with shipping and the policing of its coastline:
Thus in SA there are:
* The Merchant Shipping Act, 1951 (which has as Schedules, the conventions listed above)
* The Marine Traffic Act, 1981 and the regulations published in terms of that Act
* The Prevention and Control of Pollution of the Sea by Oil Act, 1981 containing much of the CLC Convention and provisions from the Intervention Convention.
* The Maritime Zones Act, 1994, which delimit the internal waters, territorial sea (12 miles to seawrd of the baseline), contiguous zone (24 miles to seward of the baseline) and EEZ and continental shelf zones in accord with UNCLOS.
State power as a flag, coastal & port state control
These collections of international and domestic laws confer significant powers and impose corresponding duties on all states (in SA through the Shipping Directorate of the Department of Transport) in their various capacities as a flag state authority, a coastal state authority and a port state control authority. Regulation of the marine environment must arise from balanced exercise of the powers conferred in each of the above capacities.
The Flag State
In international customary maritime law, it is incumbent upon any state which allows the registration of vessels under its flag to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag [UNCLOS Art 94]. The flag state is required to take such measures for ships flying its flag as are necessary to ensure safety at sea with regard to (inter alia) construction, maintenance and seaworthiness, manning, labour conditions and crew training, prevention of collisions. Specifically in relation to the monitoring of condition of vessels on the flag, such measures shall include those necessary to ensure that each ship is appropriately surveyed as to condition, equipment and manning.
Art 94.5 then imposes a duty on flag states to take any steps which may be necessary to secure observance with generally accepted international regulations, procedures and practices. The obligation is repeated in relation to oil pollution in Art 217.
This is achieved in the main by the flag state issuing the vessel's safety certificates indicating compliance with the main international conventions, without which it is all but impossible to trade the ship world-wide. And it is these certificates which are the key to the port state control inspection system.
The UN Convention on the Conditions for Registration of Ships believing that ... a flag state should have a competent and adequate national maritime administration seeks to compel flag states to ensure .. that ships flying the flag of such State comply with its laws and regulations concerning registration of ships and with applicable international rules and standards concerning ... the safety of ships and persons on board and the prevention of pollution of the marine environment. And further that such ships are periodically surveyed by its authorised surveyors in order to ensure compliance with applicable international rules and standards. [Art 5.3]. Significantly, but sadly largely unsuccessfully, the convention requires identifiability and accountability from shipowners and managers. A vain hope in today's world of one-ship owning companies:
The hard reality is that there is little identifiability and almost no accountability where it is needed most - in relation to the owners of sub-standard ships.
And flag states are not universally doing their duty to regulate and police their own tonnage. That they cannot be expected to have an inspectorate spread across the globe is accepted, but flag states generally contract their surveying out to local classification or non-exclusive marine surveyors. Many flag states, and a few of the classification societies as well, could do a much better job. And there is a potentially unhealthy relationship between the classification societies, the registers for which they survey and the shipowner: it is usually the shipowner who indirectly at least pays the bill of the surveyor who is to decree if a ship is seaworthy or not. Add to this the practical difficulty: can one surveyor, however competent, thoroughly inspect the vast hidden reaches of an aging OBO, under pressure from owners and charterers and often at the risk of being buried under under a relentless rising tide of bulk cargo being disgorged into the very spaces he is trying to inspect? It is the system that needs change. For the system often does not give the surveyor a fair chance.
Lloyds Register and DNV, BV and the Polish Register have in recent months faced (and hotly disputed) allegations that their surveyors sell bogus safety certificates [see eg Lloyds List November 23 1994].
The losses speak for themselves: Consider the five year average from 1988-1992 when the highest percentage of total losses of ships (ranging from 1,06% to 0,5% of the total tonnage on the respective registers) were lost from the registers of Malta, Turkey, Cyprus, South Korea, St Vincent & the Grenadines, Vanuatu and Panama - all of which are expanding registers, attracting more tonnage each year. And compare this to the world average of 0,27%. There are clearly good and bad register states; and bad registers attract the worst shipowners with the worst ships.
The more unscrupulous convenience registers take on tonnage which should not put to sea; they issue certificates riding on the back of previous certificates without adequate or at times any inspection; and, perhaps more seriously, most registers are too quick to issue conditional reservations against class with extensions to manifestly defective vessels, thereby allowing them to put to sea again without repairs.
And the industry continues to hide its head in the sand about ships long past the end of their safe natural working lives. One reads frequent protestations from shipowners and surveyors that old is not necessarily substandard [see eg a spokesperson for Intertanko, Lloyds List Nov 29 1994]. Again the statistics speak loud and clear: in the first six months of 1994, a full 92,2% of losses involved ships aged 15 years or older. 1993's percentage was 91,3%. The percentage is even more dramatic when one realises that some 47% of the world's ships are 15 years old or more, whereas 90% of the losses fell within this category (1993 figures). The oil majors continue to use the "oldest VLCC's", with an average age of 14 years being revealed by an Intertanko analysis of 689 charters published in August 1994. All the top VLCC charterers, found the survey, were prepared to use 20 year old vessels. The MD of Shell tankers had difficulty explaining Shell's policy recently when trying (totally unconvincingly) to justify on British TV last year the company fixing the "KIRKI" which unceremoniously lost her bow off the coast of Australia - immediately after being cleared by the company's surveyors. The shipping industry must get real and face the facts: it too often sacrifices safety to serve economics.
Clearly not all old ships are bad ships. Lloyds List editor says
It is ridiculous to suggest that old ships are automatically worse than newer vessels and that a charterer should be castigated as environmentally irresponsible for the high average age of the ships he is working.
Ships are not pots of yogurt, liable to cause serious harm if used after a specified sell-by date.
Quality is nothing whatever to do with the age of a ship.
[Editorial August 18 1994]
But the editor speaks here of tankers - generally better maintained vessels plying a trade with cargoes kinder to the ships which carry them. Of other trades he writes
There are some disgusting wrecks afloat, which have been lurking around in the Far East for years waiting for a demolition buyer, which have been sold on and are now being prepared for, of all things, iron ore voyages across the Pacific.
Forget the environmental sensitivity of employing old tankers. It's men's lives at stake here.
Prophetic words indeed: A fortnight later the IRON ANTONIS, another iron ore OBO, sank with another 24 more lives needlessly lost.
As Fairplay's Editor points out:
Age and safety are inextricably entwined. The statistics are the great leveller. They reflect what is happening as a rule, not the exception. There are conscientious operators of well-maintained old tonnage with outstanding loss records. But they are not the rule. The disturbing fact is that, since 1989, the proportion of older ships within the world fleet has been growing steadily, and the proportion of older ships subject to total loss is on the increase .....
[Fairplay Editorial 20 October 1994]
That the squeeze is being put on some of the worst offenders, most being flag of convenience register states, is to be welcomed. In the words of the Donaldson Report, they should be rooted out, (though it is arguable that there remains a place for certain so-called convenience registers which rigidly enforce safety measures though offer fiscal advantage to already hardpressed shipowners who might otherwise not survive were they to be tied to their own national registers).
But it is high time also that consumer action be taken against owners who continue to ply the seas with ships which should long have been sent to the scrapyard (and play with the lives of their crews in the process): and against shippers who procure tonnage at bargain freight rates particularly for low value bulk cargoes; against charterers who pay lower daily hire for what are little more than deathtraps for the crews who sail them; and against insurers who turn a blind eye and issue cover without inspection in the knowledge that the ship insured is over the hill. The industry should cast its vested interests aside and declare that enough is enough. Shipping is, after all, in disrepute largely as a result of its own lassitude.
And why do passengers book luxury cruises on vessels nearly 50 years old - regardless of how many "refits" they have had?
The Coastal State
A state having a coastline is entitled under international law to take certain limited steps to protect its own interests. UNCLOS recognises four main zones of varying jurisdiction: internal waters - bays ports and similar enclosed areas of the sea; territorial waters - extending 12 miles to seaward of defined "baselines" along the shore; a contiguous zone - covering the territorial waters and a further 12 miles to seaward; and the exclusive economic zone - extending to 200 miles. A state's powers range from full sovereign powers within internal waters, to rights limited to the exploitation of natural resources on and above the EEZ.
But there are limitations on the seemingly wide power of the coastal state: first, Art 94.5 imposes an obligation on inspecting authorities to conform to generally accepted international regulations, procedures and practices. Second, there must be no discrimination against any one state by another [UNCLOS Art 227].
And third, the flag state must not violate one of the cornerstones of international maritime law - the right of merchant ships to innocent passage across the seas. All states have the right of free passage of their ships through the high seas, the continental shelf zone and the EEZ. A similar right is enjoyed for the outer 12 miles of the contiguous zone. In the territorial sea, the sovereignty of the shore state is subject to the right of innocent passage by foreign ships: Coastal states are required by UNCLOS Art 24 not to hamper the innocent passage of foreign ships through the territorial sea.
Innocent passage is defined by UNCLOS as navigation through the territorial sea whether or not actually entering internal waters or calling at a roadstead or port facility. To be innocent a ship's passage must not be prejudicial to the peace, good order or security of the coastal State. Outlawed thus are inter alia the threat or use of force, use of weapons, spying or propaganda dissemination affecting the defence or security of the coastal state, launching or landing any aircraft, loading or unloading of anything which may contravene fiscal, immigration or sanitary laws of the coastal State, wilful and serious pollution, fishing, research and survey activities, and a catch-all of any other activity not having a direct bearing on passage. Vessels engaged in innocent passage may anchor and stop, but only if incidental to ordinary navigation or beset by extraordinary circumstances.
But international law, through UNCLOS Art 21, allows states specific powers to adopt laws and regulations in conformity with international laws which limit the right of innocent passage through the territorial sea (though by implication therefore not beyond into the EEZ). They may thus regulate maritime traffic, protect navigational aids cables and pipelines, conserve living resources and protect the environment generally, prevent reduce or control pollution, and prevent the infringement of customs, fiscal, immigration or sanitary laws. States may not however impose conditions relating to the design, construction, manning or equipment of foreign ships unless they are giving effect to internationally accepted international rules or standards. And they must give due publicity to measures being taken by them to enable foreign ships to comply.
And where a ship is to call at its ports, a state may in the territorial sea take necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or her call to the port is subject.
As far as pollution is concerned, UNCLOS Art 211 sets out the state's authority: in the exercise of their sovereignty within their territorial sea coastal states may adopt laws and regulations for the prevention, reduction and control of pollution, provided they do not hamper innocent passage of foreign vessels. They may include the EEZ in these measures, provided they conform to and give effect to generally accepted international rules and standards.
A coastal state needs to ensure that it does not reach beyond internationally accepted norms of interference with foreign vessels, both from a perspective of comity (what is done by one state can be done to its own flag vessels by other countries) and to remain within the bounds of reality and practicality. Stopping a vessel en passage through territorial seas is a drastic and potentially dangerous exercise.
In the USA, the Coast Guard in December 1994 announced that it would begin boarding potentially substandard vessels at sea buoys rather than wait for them to enter port and thereby sustain possible delays. [Lloyds List Dec 5 1994] It is doubtful whether this could be construed as an interruption of innocent passage because by stopping at the buoys (even if the buoys be outside internal waters), and to the extent that such stop is not incidental to navigation, the ship is no longer on voyage and her passage is therefore no longer "innocent" (see below). There is no question of the USCG boarding a vessel while under way en voyage.
It may also be agruable that a substandard ship is violating its rights of innocent passage by being prejudicial to the peace, good order and security of the coastal state.]
In short, coastal state intervention is limited in scope, and should be limited in use.
Port State Control
It is in the concept of port state control that the maritime community worldwide has seen a possible solution to the problem of the substandard ship. Not the solution, but rather one of the more positive steps which can be taken - and necessary because the prime obligation of the shipowner and his register have been too often neglected.
The concept is not new: UNCLOS Art 25 empowered states whose ports were used by vessels to take necessary steps to prevent any breach of the conditions to which the call at its ports by such vessels may be subject. Arts 216 and 218 enable a port state to enforce international anti-dumping and anti-pollution measures. And states are required by Art 219 to take administrative measures to prevent errant vessels from sailing. Legitimacy for port state control inspections may be found in these Articles of UNCLOS because it is usual for there to be an oil pollution threat, albeit only bunkers, from any unseaworthy ship. The only limitation is that the steps taken be reasonable, public, and not discriminatory.
It is axiomatic [say McDougall & Burke The Public Order of the Oceans, 1987 para 156/7] that the coastal state has fully comprehensive authority to prescribe policy regarding the use of its ports and other areas of internal waters. It is ancient authority which has much precedent in areas outside ship safety: Enforcement of US law in its adjacent waters ... over which it exercises dominion and sovereign power has its roots in prohibition [See eg Cunard SS Co v. Mellon 262 US 119 (1922) and US v. Bevans 3 Wheat 336,390].
But most maritime authorities now have more modern, effective and direct powers of port state control inspection: SOLAS, MARPOL, the Loadline Convention, the Registration of Ships and the STCW Convention all give powers (and duties) of inspection to ensure compliance. And most states give themselves extensive powers in relation to prevention of oil pollution.
The SA Marine Traffic Act (sec 9) allows the SA Department of Transport to require a ship master to give details of his ship and cargo, produce all papers and documents relative to the ship and to allow authorised person on board the ship to inspect the ship, its equipment and cargo. It relies upon UNCLOS to detain offending ships. The SA DoT surveyors have achieved an inspection rate of about 5% of all vessels calling at SA ports - somewhat higher if one considers bulk carriers alone. But they have an uphill battle to face: there are 27 surveyors serving the SA coasts, and they have to do a multiplicity of Merchant Shipping Act related tasks concerning ships on our own register, small vessels, certification of crew and pollution monitoring.
[See eg SA Shipping News Feb 1995 reporting a meeting between the SA Master Mariners and the DoT. Saldanha inspects 26,5% and Richards Bay 10% of bulk carriers 15 years old and older, but inspections of other vessels are on the decline because of manpower shortages and employent on other more urgent statutory requirements - UK surveyors are reported to spend some 25% of their time on port state control inspections)..]
The US Code (ibid) has empowered USCG to board and inspect all vessels entering US ports to ensure that safety and pollution standards are met. The Coastguard's powers are wide, and by all accounts effective. Whilst reciprocity is allowed to vessels certified by countries having inspection laws and standards similar to those of the US, even those vessels are subject to being checked to ensure that the condition of the vessel is as stated in its current certificate of inspection. This is laudable empowerment, but its effectiveness depends upon the extent to which vessels are indeed inspected.
The USA embarked upon a rigorous policy of Port State Control inspections with effect from May 1 1994: Boarding and inspection procedures are laid down in the USCG Port State Control Initiative which aims to drive substandard ships out of US waters.
All ships entering US ports are assigned points for their compliance with international safety conventions, their previous track records and those of sister ships in the same ownership or management, and the rating of their flag and classification society.
A ship's points rating will determine its categorisation as Priority I, II or III. The worst offenders, Priority I, require inspection before they enter port (hence the buoy procedure referred to above) and any defects must be rectified before port entry where possible. Priority II ships must be inspected before they load cargo or embark passengers, and must be rectified before proceeding.
Hopefully the USA (and SA) will enjoy the same success as Sweden: when approached at the CMI conference in Sydney in October 1994 for his comment upon the effectiveness of Sweden's policy of port state control inspection, Mr Lars Lindgren, MD of The Swedish Club retorted "We have no problem. No substandard ships come to Swedish ports because their owners know well what is in store for them".
Paris MoU States
In recent years, the international maritime community has built upon the foundations of UNCLOS and has formed regional co-operation groups such as the states now party to the Paris Memorandum of Understanding ("Paris MOU"), first signed in 1982.
The Paris Memorandum recognised the prime obligations of the owner and flag state, but recognised also that "effective action by port states is required to prevent the operation of sub-standard ships". The Paris MOU required each state party to inspect a minimum of 25% of all foreign ships entering its ports in a year. There is agreement not to reinspect ships in any participating port within 6 months. Somewhat idealistically, initially there was to be no discrimination against either owners or flags (in conformity with the Convention on the Conditions for the Registration of Ships). In July 1993 however an amendments was signed requiring port states to target specifically bulk carriers, passenger ships, roll-on, roll-off ships, tankers or gas carriers, and ships or their owners with a known poor history. Certain flags were also targeted for special attention by means of a 3 year "rolling average" table of above average delays and detentions in the (MOU's) annual report.
Regional databases have been set up to monitor details of detained ships, and port states should establish their own blacklists and subscribe to those of others. Other regional port state control organisations have been set up - A Tokyo MOU now covers much of the Far East and the Pacific and MoU's are in the pipeline for the Indian Ocean basins and for the South Atlantic.
The UK has taken embraced port state control inspections, supported by most factions, including Lloyds Register [See eg Beaumont, Lloyds List 11 November 1994:
We (Lloyds) view with concern any LR classed ship appearing on any Port State detention list, or indeed any ship anywhere found to be below the technical and safety standards expected of the industry. We always have and always will take action against owners when we discover that they failed to maintain their ships to those standards if necessary by removing such ships from class. In this context we remain fully committed to the concept of Port State Control and welcome the contribution it makes.
The UK DoT has achieved a 30% overall inspection rate, and it is estimated that up to 80% of ships entering Paris MOU ports per year are now being inspected at least once a year. In the first 10 years of the Paris MOU, its secretariat reports 125 000 inspections leading to over 4 000 detentions. Canada has recently joined the Paris MOU, and in September 1994 the 15 MOU states agreed to tighten inspections even further.
In 1991 the IMO gave official recognition and encouragement to the Paris MOU, in a Resolution which recognised the "important contribution to maritime safety and pollution made through regional co-operation ... in preventing, without discrimination as to flag, the operation of substandard ships".
Perhaps the most encouraging recent development in the battle against the unseaworthy ship was the publication in Lloyds List of 5 August 1994, of the UK's list of ships detained for the month of June under its port state control inspections. Reasons for detentions were given (and subsequently debated in the press) and owners and manager were named. The UK has continued to release a monthly list, though somewhat in arrears. Australia, South Africa, Canada and the USA have followed suit - with Australia absolving itself legislatively from liability for naming or detaining vessels if done in good faith. Even this though is losing its clout:
Just as there is such a phenomenon as "compassion fatigue" when pictures of the world's suffering are paraded endlessly on television screens, so the senses become dulled by the parade of deficiencies which have resulted in ships being kept in custody.
[Lloyds List Editorial: 23 February 1995]
Port state control is an international initiative. It requires regional and international co-operation.
There is no "quickfix" - the solution is long-term at best. But the effect must surely be that the message will filter up the line to unscrupulous shipowners, cut rate charterers, hull, P&I and cargo insurers, CIF shippers seeking lower freight rates, coastal states, the industry at large (and not least the seamens' unions and Missions to Seamen who struggle to protect the rights and lives of seamen):
Substandard ships (or lets throw the euphemism aside and call them unseaworthy ships) have no place in our ports. They belong only in the scrapyard.
Shipping Law Unit
Institute of Marine Law
Faculty of Law
UNIVERSITY OF CAPE TOWN
This is a re-print of an article published in SEA CHANGES No 16 1994 at page 57, and is based on a talk given to the Admiralty Institute of Tulane University in February, 1995.