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    The impact of Caspian oil and gas development on Turkey and challenges facing the Turkish straits

    The Marmara Hotel, Istanbul, 9 November 2001


Introduction to Port State Control

    Port State Control is the control of foreign flagged ships in national ports. As stated in nearly all the literature about port state control, in an ideal world port state control would not be necessary. Since the control systems used by the other partners in the shipping world have proven ineffective in eradicating all substandard vessels from the seas, port state control stays in practice. However, port state control is not, and can never be a substitute for the proper exercise of flag state responsibility. The primary responsibility to safeguard against substandard ships lies with the flag states. It is when flag states fail to meet their commitments that the port state comes into play.

    When one reads the literature about the port state control, one comes across statements to the effect that port state control is the last safety net and in an ideal world the port state control would not be necessary.

So how would the system work in an ideal world?

    International conventions have been created and developed on the basis of the safety of the ships being regulated by the flag states. The International Maritime Organization (IMO), a specialized agency of the United Nations, started to develop international treaties and other legislation concerning safety and marine pollution prevention in the 1950s in order to develop international standards which would replace the multiplicity of national legislation which then existed. IMO has produced a mass of legislation over the years and majority of countries are members of these conventions. If majority of the countries are members of these conventions, why is it still possible to find shipowners or manning agents who force seafarers to risk their health and lives at sea, or find ships which are unsafe and do not comply with the required technical conditions under the international conventions? Or why are there so many crew members who do not know what to do in case of an emergency?

    Shipping is not failing in ratifying new conventions and international community is not failing in adopting necessary legislation; but shipping is failing in the application and enforcement of international legislation, especially the ones on safety, pollution and crew welfare. As a general rule the implementation of international conventions is the responsibility of the states that ratified them. Governments ratifying the international instruments are obliged to incorporate the provisions into their national legislation. However, in practice enforcement of international conventions raises many problems. They may take a long time to be incorporated into the national legal system of each state. The coming into force of a convention does not necessarily mean its effective enforcement.

    For a considerable period of time, the shipping community relied on the flag states to provide overall control. This has been very difficult to achieve especially with the advent of flags of convenience. Flag states also have gradually relied upon more and more on classification societies to regulate and control the standards laid down by the IMO. However, the control mechanisms applied by the flag state and classification societies have proven be not good enough to remove the all-substandard vessels form the industry.

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The impact of Caspian oil and gas development on Turkey and challenges facing the Turkish straits

    The Marmara Hotel, Istanbul, 9 November 2001 The clear example of failure of this system can be seen in the San Marco case. This case

    is the illustration of the deficiencies in the international safety net. The San Marco then

    known as the MV Soral was a 1968 built panamax dry bulk carrier. It was owned by a

    succession of one ship brass plate companies. In March 1991 it was sold to a company

    named Sea Management for $3.2 million. The vessel traded as San Marco under the

    ownership of another brass plate company, Shipping of Nicosia, Cyprus. In May 1993, it

    was detained by the Canadian Coast Guard (CCG) for serious structural, fire fighting

    and live saving defects. Following this incident the vessel’s P&I club withdrew the cover.

    As the owner would not do the immediate repairs its classification society, Bureau

    Veritas (BV), withdrew class after an inspection.

In May 1993 the vessel had been inspected by an Hellenic Register of Shipping (HRS)

    surveyor for a class transfer from BV and found to be in “good condition and well-

    maintained”. The vessel was issued with clean class certificates, without any repair

    recommendations. She had the BV certificates valid until 1995 and no recommendations.

    Towards the end of June, the same year, the CCG allowed the San Marco to depart from

    Vancouver under tow at the request of the shipowner. However, although the HRS issued

    a clean class certificate and the vessel had BV certificates valid to 1995 the CCG did

    only allow the vessel to be towed unmanned. The CCG had no legal power to compel the

    owner to do repairs locally. Soon after leaving Canadian waters the tow to San Marco

    was cut and a crew put on board by a helicopter. From then on, the vessel continued to

    trade, unrepaired with clean HRS certificates. Obviously, if the Canadian port state

    control had the legal power to demand repairs before departure, the vessel would have

    been prevented from trading in a dangerously unseaworthy condition. As this was not the

    case the San Marco managed to slip through the safety net.

In November 1993, while she was 150-200 miles off the South African coast on a

    voyage from Morocco to Indonesia, she lost some 14x7 metres of shell plating from both

    sides of her No.1 hold and all 5000 tons of cargo in that hold. The ship was put into

    Cape Town as a port of refuge and quickly detained by the Department of Transport. As

    it was not possible to continue trading her without spending substantial amount of money

    on repairs, the vessel was subsequently sold for scrap at a public auction.

As illustrated in the San Marco case, shipowners, classification societies, insurers, flag

    state administrators have failed to do their job properly. If all parties concerned acted

    responsibly and prudently, port state control would not be necessary. The control

    mechanisms applied by the flag states and classification societies have proven not to be

    sufficient in eliminating all substandard vessels from the industry.

Six years after the San Marco case, the Erika incident yet again forced a radical re-

    assessment of the industry’s safety net.

The Erika

The Erika incident which took place in December 1999 prompted a huge legislation

    overhaul. During the early morning of 12 December 1999 the Maltese registered tanker

    Erika broke in two in gale force winds in the Bay of Biscay approximately 60 miles of

    Britanny Coast. The tanker was carrying 31,000 tonnes of heavy fuel oil.

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In analysing the reasons for the Erika’s disastrous loss, many factors such as flag, class,

    age, charterer came into play. The Erika reflected the polyglot nature of the tanker

    industry. The charterer was French, the owner Italian, the crew Indian, and the flag Maltese. However, the Erika was not the only incident where so many nationalities were

    involved in the management of a vessel. There have been many oil pollution incidents where the vessels were registered under a flags of convenience country, polluted various sea resources but none of them had the same attraction. But the Erika was different from

    many previous incidents as it carried the required certificates, was under class and had been inspected by port states, flag states and industry inspectors on several occasions. The vessel slipped through the whole series of safety nets.

At the time of her sinking all of the Erika’s class and statutory certificates were valid.

    She was classed with RINA (Registro Italiano Navale), a full member of International Association of Classification Societies (IACS). The ship was under the management of an Italian company, which was also ISM certified by RINA. Between 1991 and 1999 she was inspected 16 times by the port state control inspectors and twice by the flag states control inspectors. This figure does not include the vetting inspections undertaken by the oil majors, or the surveys carried out by the classification societies. Several oil companies chartered the Erika throughout the 1990s. The inspectors of Texaco, Exxon’s subsidiary Standard Marine, Repsol and Shell approved her as a fit vessel to carry their cargoes. The vessel was also approved by TotalFina whose cargo she was carrying when she sank. In December 1999, the Erika had the approval of most of the major oil

    companies, which carry out vetting inspections prior to accepting a tanker.

The Memorandum of Understandings (MOUs)

Historical Outlook

    The origins of port state control lie in the memorandum of understanding between eight North Sea States signed in Hague in 1978. The background of this memorandum is that in 1976 a maritime session of the International Labour Conference adopted the Merchant Shipping (Minimum Standards) Convention, more commonly known as ILO Convention

    No. 147. This Convention aimed to inspect vessels that entered the ports of member 1 which decided that this Convention deserved a proper states. On March 2 1978 the Hague Memorandum was signed by the maritime follow up. The aim of the memorandum was to surveillance the seagoing ships generally authorities of eight countriesin order to ensure that requirements stated under the ILO Convention No. 147, as well as

    in other Conventions, were met. Just as the Hague Memorandum was about to come into

    effect, in March 1978 Amoco Cadiz incident happened. This incident caused a strong

    political and public demand in Europe for much more stringent regulations with regard

    to the safety of shipping. Following these developments, the ministers responsible for

    maritime safety of 13 European countries, together with the representatives of the

    Commission of the European Communities, IMO and the International Labour

    Organization (ILO) met in Paris in December 1980. They agreed that the elimination of

    substandard shipping would be best achieved by co-ordination of port states and based on

    the provisions of a number of widely accepted international maritime conventions, the so

    called relevant instruments. At a second ministerial conference, again in Paris, in January

1 These countries were Belgium, Denmark, France, Germany FR, the Netherlands, Norway, Sweden and

    the United Kingdom.

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    1982, the present Paris MOU on Port State Control was adopted and signed by the maritime authorities of 14 states.

    2Although Paris Memorandum of Understanding on Port State Control (Paris MOU) -the the International Convention on Load Lines 1966 (LL 66); the earliest regional agreement of this kind- was signed in 1982, maritime authorities of most International Convention for the Prevention of Pollution From Ships, as modified by the states already had specific powers to exercise port state control under the conventions to Protocol of 1978 relating thereto (MARPOL 73/78) and the International Convention on which they became parties. These include the International Convention for the Safety of Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW Life at Sea (SOLAS);1978). Therefore, the powers used by Port State Control Officers (PSCOs) are not new; it is the willingness to use these powers and the coordinated application of port state control which are new. However, it has to be kept in mind that a port state can only apply those conventions which have entered into force, and which it has implemented for its own ships. Ships that fly the flag of a state which is not a party to that convention or below convention size would not be exempt from inspection because the principle of no

    more favourable treatment would be applied.

    The Paris MOU has been in operation since July 1982. With this memorandum, for the first time, a regular and systematic control of ships was exercised by a regional group of port states which are parties to the relevant Conventions. The Paris MOU is the model upon which other regions of the world base their agreements on port state control. Since its entry into force the number of states in the Paris MOU has grown. This has mainly been due to the increase in the number of member states of the EU. Now EC Directive 95/21/EC on port state control places a legal requirement on all EU member states to carry out port state control inspections.

    As its name already suggests, a memorandum of understanding is not an international convention. It is an administrative agreement that has been subscribed and executed in the framework of the co-operation among the maritime authorities of the states party to them. Why was there a preference for a memorandum of understanding rather than a convention, which from an international juridical point of view is a more powerful instrument? During the preparation of the memorandum all countries involved showed a political will to see the practical results of their study. It was realised that conventions usually require lengthy ratification procedures and similar problems will be faced when conventions need to be amended.

    3Therefore, a memorandum of understanding has been

    established instead of a convention.

    At present there are eight regional agreements on port state control and these have a total of 123 member states.

These regional agreements are namely;

    2 It was recognised by the drafters of the 1929 SOLAS Convention that a flag state could not constantly monitor every ship in its fleet wherever it sails in the world. Therefore, the states were given power to inspect a vessel’s documentation. If there were clear grounds for suspecting that the condition of the

    ship did not meet the Convention standards, then an inspection of the ship could be carried out.

     3 Since 1982, the Paris MOU has been subject to 20 amendments.

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    1) The Paris Memorandum of Understanding on Port State Control 1982 (Paris MOU) 2) The Acuerdo De Viña del Mar Agreement on Port State Control 1992 (Latin American Agreement)

    3) The Memorandum of Understanding on Port State Control in the Asia-Pacific Region 1993 (Tokyo MOU)

    4) The Memorandum of Understanding on Port State Control in the Caribbean Region 1996 (Caribbean MOU)

    5) The Memorandum of Understanding on Port State Control in the Mediterranean Region 1997 (Mediterranean MOU)

    6) The Memorandum of Understanding on Port State Control For the Indian Ocean Region 1998 (Indian Ocean MOU)

    7) The Memorandum of Understanding on Port State Control for the West and Central Africa Region 1999 (Abuja MOU)

    8) The Memorandum of Understanding on Port State Control in the Black Sea Region 2000 (Black Sea MOU)

    There is also a regional agreement under development. In July 1999 a first draft of a regional PSC agreement for the ROMPE ((Regional Organisation for the Protection of the Marine Environment) sea area and the complementary training programmes for its implementation was discussed in Manama, Bahrain. The meeting was organized by the Maritime Agency Mutual Aid Centre (MEMAC) Bahrain, in co-operation with the GCC (Gulf Co-operation Council) and IMO.

    The meeting was attended by the delegates from Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates, with UNEP/ROWA (Regional Office for West Africa) as observers.

The Rules That Govern Port State Control Activities

    In November 1995, IMO adopted resolution A.787(19)-Procedures for Port State Control. The resolution was amended in 1999 by resolution A.882(21) and will no doubt be further amended in the future. The resolution is intended to provide basic guidance on the conduct of port state control procedures and afford consistency in the conduct of such inspections, the recognition of deficiencies of a ship, its equipment, its crew and the 4 application of control procedures. It is published by IMO as a booklet with the title of “Procedures for Port State Control”.The procedures are not mandatory and only offer guidance to port states.

Basic Principles

    The intention of port state control is not to enforce on foreign merchant shipping any requirement which goes beyond convention requirements. In other words, the MOUs do not extend the scope of port state control beyond the international convention requirements.

4 IMO, Procedures for Port State Control (IMO, 1997). New edition published in 2001.

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    The prime responsibility for compliance with the requirements laid down in the

    international maritime conventions lies with the shipowner/operator. The

    responsibility for ensuring such compliance remains with the flag state. Each maritime authority gives effect to the provisions of the relevant MOUs.

    Each authority has to ensure that foreign merchant ships visiting its ports comply

    with the standards laid down in the relevant conventions and all amendments

    thereto in force. In this context, a participating maritime authority regards a ship

    flying the flag of another member state as a foreign ship too.

    The MOUs provide for a total number of inspections, expressed in terms of a

    percentage, that each of the states party to the relevant MOU shall conduct.

    Under the Paris MOU the member states have agreed to inspect 25% of the

    estimated number of individual foreign merchant ships which enter their ports

    during a 12 month period. This percentage is different in other MOUs. The

    Tokyo MOU refers to a 75% value and the Indian Ocean MOU refers to 10%

    value while Viña del Mar, Caribbean, Mediterranean, West and Central African

    and the Black Sea MOUs mention a minimum of %15 annual inspections.

    IMO and ILO conventions provide the basis for inspections under the MOUs.

    All possible efforts are made to avoid unduly detaining or delaying a ship.

    In principle, there will be no discrimination as to flag.

    Inspections are generally unannounced.

    In general ships will not be inspected within six months of a previous inspection in a

    MOU port, unless there are “clear grounds” for inspection.

Under the MOUs, the “clear grounds” justifying the undertaking of further

    inspections are defined as;

    a report or notification by another authority;

    a report or complaint by the master, a crew member, or any person or

    organization with a legitimate interest in the safe operation of the ship, the

    shipboard living and working conditions, or the prevention of pollution,

    unless the authority deems the report or complaint to be manifestly

    unfounded; and

    other indications which may warrant a more detailed or an expanded inspection.

    In addition to this list, there is a second series of specific “clear grounds” concerning the

    compliance of vessels with on-board operational requirements. These are;

    evidence of operational shortcomings revealed during port state control

    procedures in accordance with the 1974 SOLAS Convention, MARPOL

    73/78, and the 1978 STCW Convention;

    evidence of cargo and other operations not being conducted safely or in

    accordance with IMO guidelines;

    involvement of the ship in incidents due to failure to comply with operational


    evidence, from the witnessing of a fire or abandoned ship drill, that the crew are

    not familiar with essential procedures;

    absence of up-to-date muster list; and

    indications that the relevant crew members are unable to communicate

    appropriately with each other, or with other persons on board, or that the ship

    is unable to communicate with the shoe-based authorities either in a common

    language or in the language of those authorities;

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International Instruments

The MOUs invoke international instruments that are legally binding for states parties.

    They do not set any new standards. They basically aim to make sure that all ships

    operating in the region meet the internationally agreed standards. Only internationally

    accepted conventions shall be enforced during the port state control inspections. For

    instance under the Paris MOU states parties to the Paris MOU commit themselves to

    enforce the conventions listed in Section 2 of the Paris MOU which are referred to as the relevant instruments:

    International Convention on Load Lines 1966, as amended, and its 1988 Protocol

    (LOADLINES 66/88);

    International Convention for the Safety of Life at Sea 1974 (SOLAS), its Protocol of

    1978, as amended, and the Protocol of 1988, (SOLAS 74/78/88);

    International Convention for the Prevention of Pollution from Ships 1973, as

    modified by the Protocol of 1978, as amended (MARPOL 73/78);

    International Convention on Standards of Training, Certification and Watchkeeping

    for Seafarers 1978, as amended (STCW 78);

    Convention on the International Regulations for the Preventing Collisions at Sea

    1972, as amended (COLREG 72);

    International Convention on Tonnage Measurement of Ships 1969 (TONNAGE


    Merchant Shipping (Minimum Standards) Convention 1976 (ILO Convention


Inspections on board ships under the Merchant Shipping (Minimum Standards)

    Convention 1976 (ILO Convention No.147) relate to:

    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) (Arts. 4 and 7);

    Accommodation of Crews Convention (Revised) 1949 (No. 92);

    Food and Catering (Ship’s Crew) Convention 1946 (No.68) (Art.5);

    Officer’s Competency Certificates Convention 1936 (No.53) (Arts. 3 and 4).

Who boards a ship to carry out port state control?

Port state control is carried out by a Port State Control Officer (PSCO). The PSCO’s

    powers derive solely from the sovereign state which employs him and is subject to the

    national laws of the jurisdiction in which he is operating. The PSCO should be an

    experienced person qualified as a flag state surveyor and able to communicate with the

    master and key crew members in English. However, the PSCO need not have sailed as

    master or chief engineer or have had any seagoing experience. In principle, he should not

    have any commercial interest in the port, the ship or be employed by or on behalf of a

    classification society.

All PSCOs carry an identity card issued by their maritime authorities as evidence of the

    authority to carry out inspections. Inspections may be carried out by a single PSCO or a

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    team of PSCOs depending to some extent on the size and type of ship and the resources

    available on any particular day.

The inspection process

The port states authorities set overall percentage inspection rates to ensure that a

    minimum number of ships are inspected. They use targeting factors to focus inspection

    effort on those ships most likely to be substandard. Ships of a certain age and type are

    specifically selected for the purpose of conducting expanded inspections. Concentrated

    inspection campaigns are conducted to check on special matters or areas of concern.

Certain selection criteria such as the ship’s flag, age and type, are believed to directly

    influence how well a ship is likely to be operated and in what condition a ship is likely to

    be found. To help PSCOs rank priority ships, the Paris MOU has developed a

    computerised targeting formula as part of its database system. This formula resulted in a

    target factor (TF) for each individual ship. By allocating points to each criteria a scoring

    system is employed and a ship is assigned a targeting factor. The target factor value of

    each ship is calculated in the central Paris MOU PSC database (SIRENAC) on the basis

    of ship’s profile and inspection history.

The targeting system consists of two modules:

    the generic factor and

    the history factor.

The generic factor for an individual ship is calculated by adding together several

    elements forming a generic profile of the ship. These include: flag states on black list,

    targeted ship type, non EU recognised classification society, age of the ship, above

    average class deficiency ratio and flag. The generic factor is updated when the particulars

    of the ship change or the status of its existing flag or class change. The historic element

    includes; ships which are entering the region for the first time in the last 12 months; or

    which have not been inspected in the last six months; ships with a pervious detention in

    the last 12 months, and those with a number of deficiencies during last 12 months. The

    overall TF is calculated by adding the generic and historic factor. The targeting factor is

    only a guideline for selecting ships. Each state or port may have its own priority list of

    ships to be inspected depending on the type of vessels visiting their ports.

Irrespective of the targeting factors and concentrated inspection campaigns there are a

    number of circumstances or overriding factors that would take a ship to the top of

    inspection list. These include:

    Ships that have been reported;

    Ships reported as having outstanding deficiencies;

    Where operational concerns about a ship exist;

    Ships suspended from class.

If a ship has been inspected during the previous six months, and on that occasion, was

    found to comply with the port state control requirements, it will, in principle, be

    exempted from further inspection, unless there are clear grounds to warrant further

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    investigation. However, in practice evidence shows that ships are often re-inspected at intervals of less than six months especially when a ship moves between port state regions.

    In general the inspection should be limited to check of ship’s certificates unless there are clear grounds for believing that the condition of the ship does not substantially reflect those certificates. In the past, this has been interpreted to mean that the inspection should stop once the PSCO has been shown a set of valid certificates. Experience continues to show that valid certificates are no guarantee of compliance with the conventions. Control on compliance with on board operational requirements may be included in the control procedures, particularly if the PSCO has reason to believe that the crew demonstrates insufficient proficiency in that area.

    Guidelines on what to inspect are available in IMO Guidelines on port state control procedures (Res. A.882(21)), in the Paris MOU’s Manual for Surveyors and in the Annexes to the EC Directive on port state control. Although these documents serve as a consistent reference point ultimately professional judgment is used in selecting areas for attention.

    The regional PSC MOU members from time to time agree to carry out special inspection campaigns for a period of generally 3 months. Within such campaigns special attention is laid on certain details during the regular inspections held on board.


A PSCO may impose the following courses of action on a ship:

    Rectification of deficiencies prior to departure;

    Rectification of deficiencies in the next port, under specific conditions;

    Rectification of (minor) deficiencies (only) within 14 days;

    Detention of the ship.

    Following an inspection the PSCO has to decide which action has to be taken to correct the deficiencies found and the time within which the corrections are to be made. If the deficiencies found are serious the PSCO has to decide whether he should prevent the ship from sailing until they are rectified.

    The role of a PSCO, in deciding on the detention of a ship, is very delicate. The decision to detain a vessel is based on the professional judgment of the PSCO. If deficiencies are revealed on a PSCO inspection, which are “clearly hazardous to safety, health or to the environment” the PSCO must ensure that those deficiencies are removed before the

    vessel is allowed to sail. The authority may, in practice will, detain the vessel in order to ensure that deficiencies are rectified. Despite the guidelines provided to assist PSCO to make that judgement there is a subjective element in a PSCO’s judgement that

    deficiencies are so clearly hazardous to warrant a detention.

    A PSCO may detain a vessel if there is one deficiency of such serious nature that it warrants the vessel’s detention; or if there is a combination of deficiencies which may not

    warrant detention if viewed individually but when viewed together with other

    deficiencies, they are seriously sufficient to warrant a vessel’s detention.

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    The Paris MOU gives a list of defects which may constitute grounds for detention. But this is only a guide and it should not be seen as the definitive list of detainable items. The decision to detain requires the PSCO’s professional judgment that is why the knowledge, experience, integrity and independence of PSCO is particularly important.

    The non-exhaustive list of examples of deficiencies provided by the Paris MOU is as follows:

    Lack of valid certificates;

    SOLAS Convention deficiencies;

    International Bulk Cargo Code deficiencies;

    International Gas Carrier Code deficiencies;

    Load Line Convention Deficiencies;

    MARPOL Convention, Annex I deficiencies;

    MARPOL Convention, Annex II deficiencies;

    Standards of Training, Certification and Watchkeeping Convention-STCW-


    ILO Convention deficiencies.

    Under each category, there is a list of specific deficiencies. When a PSCO decides on the detention of a ship, he will immediately inform the master accordingly and advise him to seek assistance and to arrange remedial action in order not to delay his ship. Following a detention the PSCO officer is required to inform the flag state and the classification society (if it has issued statutory certificates) without delay. This notification includes the PSCO’s report of inspection.

    A detained ship will only be released once the PSCO is satisfied that the deficiencies found have been properly rectified. In cases where some repairs cannot be carried out in the port of detention, the PSCO may allow the ship to proceed to a repair yard as long as adequate temporary repairs are made and it is safe for the ship to make the voyage.

    If the vessel does not comply with the conditions of the release, it will be liable and refused to access to all Paris MOU ports. In order to lift the ban, the vessel needs to be re-inspected to confirm that the ship complies with the conventions. The banning provision has also been extended to cover ships which are required to comply with the ISM Code. The absence of valid ISM certification might also lead to a ship being detained.

    In exceptional circumstances, where the overall condition of a ship, its equipment or the working conditions of the crew are found to be obviously substandard, the PSCO may suspend an inspection. In such a case the port state should notify the flag state of the suspension without delay. The suspension would continue until the deficiencies identified by the PSCO have been rectified, as instructed.

Inspection Charges

    The port state should not charge the ship for any general inspection. However, charges can be expected if the ship invites a port state to undertake inspection, or if the ship is detained and the PSCO has to return to the vessel for a re-inspection. That’s why it is

    important that the ship should ensure that all deficiencies are properly rectified before asking for a re-inspection. It is also possible that there may be charges if there are overriding factors.

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