Legal Aspects of Port State Control
Introduction
1.1 Overview
Shipping is a truly international industry with its uniqueness pertaining tothe fact that a commercial ship plies from one jurisdiction to another.Therefore, there is strong necessity for international cooperation in order toachieve a challenging goal that it is safe ships and crew as well as cleanseas. The part of shipping history is the history of maritime casualties andincidents such as
Titanic, Torrey Canyon, Amoco Cadiz, Erika
and
Prestige,
which caused loss of many lives and significant marine pollution. Thesemarine catastrophes became a catalyst for emergence and development ofthe international maritime regulatory conventions such as InternationalConvention for the Safety of Life at Sea and International Convention forthe Prevention of Pollution from Ships. Elaboration of the internationallyagreed standards with respect to construction, design and equipment ofships, navigatio
n, manning, prevention of pollution, seafarers’ educational
and training qualification through the conclusion of respective conventionsand provisions of United Nations Convention on the Law of the Seascrystallising respective international customary law and evolving them intothe progressive development of international maritime law allowed to makea step further. Inspection regime was embedded into those regulatoryconventions and subsequent regional cooperation on port state controldeveloped. PSC has a number of legal facets to be examined and analysed.First, the international legal foundation of port state jurisdiction with focuson PSC must be examined. Besides the international legal regime on PSC,there is a soft law comprised of the guidelines of the International MaritimeOrganisation and the regional Memoranda of Understanding, whichconstitute the international and regional PSC framework and establish itsmechanism. The regional MoUs play a coordinating role and facilitate thecooperation among whole regions. Nevertheless, legal norms, which governPSC inspections, are found in the national law of a port state. Therefore, it isimportant to understand how the international legal norms and guidelines onPSC are implemented in the national law of a port state.There is also a private law aspect of PSC. Namely, it is legal implicationsarising out of PSC detention. It means that the foreign vessel, being in any port, may be prohibited to proceed to sea, unless those deficiencies, foundduring the PSC inspection, are rectified. Practically, it implies a financialloss for the charterers, deprived of the use of the vessel. Found deficiencies
may be used as an evidence of the vessel’s unseaworthiness, which may
cause damages or even repudiation of the c
ounterparty’s obligations in
relation to the contract of affreightment and marine insurance.In order to understand the contemporary development of PSC, it is alsoimportant to examine affiliated mechanisms for facilitation of observance ofthe IMO regulations since, united by common goal, they start developing intandem. There is possibility to interrelate PSC with flag stateimplementation now. Furthermore, it is possible to assess effectiveness of
8recognised organisations with help of the PSC statistics. However, preliminarily, recent maritime casualties give grounds to consider currenteffectiveness of ROs as rather insufficient. Therefore, the prospects how toreinforce the current international regime on ROs must discussed. In theend, there are academic suggestions that it is a time to construct one globalPSC regime, which must be considered through the prism of the necessityand possibility as it may be a further step in the evolution of PSC.
1.2 Purpose and research questions
The purpose of this thesis is to draw the single picture showing all legalcomponents of PSC and provide an analysis of each of them. There arefollowing research questions to be answered in this thesis:1.
What is the notion, scope and basis for PSJ, which embraces PSC?2.
What triggered the development of PSC?3.
Does the right to access ports exist in international law?4.
What is the international and regional framework of PSC and theircorrelation?5.
What are the national arrangements on PSC?6.
What are the legal implications of PSC?7.
Is there a correlation and interdependence between PSC and FSI?8.
What is the role of ROs with respect to FSI and PSC?9.
What is the current ROs performance measured through PSCstatistics?10.
Is there a possibility to reinforce international legal regime on ROs?11.
Is there a need for establishment of universal PSC regime?12.
Is it possible to establish universal PSC regime
15an annex appears to be in contradiction with the regulation 19, then, thequestion arises whether the regulation 19 will prevail. The immediate
answer might be that “yes”, it will, taking into consideration that the
provision on PSC is placed in the Annex I which is titled
as “General provisions”. The position of this provision indicates on its general nature
and other regulations must be in conformity with it. Therefore, it can beargued that if any provision of SOLAS is not in accordance with theregulation 19, then, the regulation on PSC must prevail. However, thissituation can be seen from a different angle. Namely, if a contradictory provision contains a specific rule then it must prevail, as it is applicable onlyin certain cases or on certain conditions. Although there is a little chance tohappen for such situation, it does not justify its existence.There are several features, pertaining to every regulation on PSC of therespective conventions:
an inspection shall be conducted only by officers duly authorized bythe government of a port state;
an inspection shall be limited to the check of certificates unless thereare clear grounds to consider the ship as substandard;
where the certificate has expired or ceased to be valid, PSCO shalltake steps to ensure that the ship shall not sail until it can proceed tosea without danger to the ship, marine environment or persons on board;
the flag state and RO where appropriate of the ship detained shall benotified;
all possible efforts shall be taken to avoid undue detention or delayof a ship;
unduly detained or delayed ship shall be entitled to compensation forany loss or damage suffered.As Mr. Molenaar states PSJ has become increasingly complex. It is not justa corollary of the updating of the relevant international instruments but alsotheir continuous development into related or entirely new subject areas.
15
Indeed, PSC is internationally introduced through the earlier SOLAS safety provisions and then institutionalised by UNCLOS with MARPOL in view.
However, now PSC embraces much more areas such as seafarers’ labour
conditions under ILO 147 and soon MLC, mandatory marine insurance ofoils spills through CLC and BUNKER, which are applicable instrumentsunder Paris MoU. It indicates that PSJ is an evolving concept and perhaps,now it is not possible to deduce those areas as international customary law,however we are, definitely, witnessing the progressive development of PSJ.
2.2 The right of merchant vessels toaccess foreign ports
There are speculations on the academic ground and international forumabout the issue whether merchant ships are entitled to access foreign ports
15
Molenaar,
supra
note 13, 202
16according to international law.
16
It must be analysed as it, definitely,constitutes a part of port state regime. Furthermore, a consequence of PSCmay be possible the denial of a port access to the particular vessel becauseof their substandard condition. Paris MoU exercises the right belonged to port states to control access to their ports. If a vessel is found to besubstandard for several times in connection with flying the flag of poor performing state it will be banned to call the ports in Paris MoU region.As it was explained in the previous subchapter, the distinctive feature ofinternal waters from other maritime zones (territorial sea, contiguous zone,exclusive economic zone) is that a state has, in general, full sovereignty overit. However, it was states in the
Saudia Arabia v. Aramco
case that:
“according to a great principle of public inte
rnational law, the ports of everystate must be open to foreign merchant vessels and can only be closed whenthe vital interests of the s
tate so require.”
17
Lately, ICJ in the
Nicaragua
case asserted that it is “by virtue of its sovereignty that the coastal
state mayregulate access to its port.
18
It is possible to say that customary internationallaw does not recognize the existence of the right of access to a port by aforeign vessel. However, it presumed that ports are open unless a stateindicates otherwise, so it is a presumption only and not a legal obligation.1923 Convention and Statute on the International Regime of Maritime Ports provide that vessels, except fishing vessels, of contracting parties have aright of port access. It has been asserted that the convention was acodification of international customary law respecting port access. However,it is not in consistency with
Nicaragua
case.Besides the convention, there are some bilateral agreements between states providing for the reciprocal right to access the ports for the ships flying theirflag.
19
It is again demonstrates that this right is not within generally provided.There are certain limitations of port state jurisdiction to deny access toforeign ships. According to the international trade law principal of the mostfavourable nation, if the state A grants access to the state B, the other statesshall enjoy the same regime of access to the ports of state A as the state Bhas, provided that all states are party to the General Agreement on Tradeand Tariffs. However, this does not constrain the state A from denyingaccess to the particular ship of the state B or other states if it is found to besubstandard. Therefore, this limitation does not interfere with PSC. Anotherlimitation is that according to UNCLOS and international customary law, aship in distress shall be granted access to foreign ports. However, thecatastrophe of
Prestige
showed that this right may be neglected, that is, infact, a very negative practice and it was highly criticised by the internationalcommunity. Hence, there is no a general right of access to foreign ports.
16
George C. Kasoulides,
Port State Control and Jurisdiction
(Martinus Nijhoff publishers,London 1993) 2-5
17
Saudi Arabia v. Arabian American Oil Co., 27 I.L.R. 117, 212 (Arb. Trib. 1958)
18
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. UnitedStates of America), Order of 26 September 1991, I.C.J. Reports 1991, 111
19
Gero Brugmann, ‘Access to Maritime Ports’ (Dr. jur. thesis, The University of New
South Wales 2003) 35
17
3 The PSC framework andmechanism
There are several layers of norms of different nature with respect to PSC,which constitute its organisational and legal framework as well as itsmechanism. The first level, which was discussed in previous chapter,establishes general universal principals of PSC, mainly contained inUNCLOS and its legal foundation through international maritime regulatoryconventions. The next level lies within IMO guidelines, which provideinternationally recommended framework on which, further, regional MoUs
are based. The last level in this chain is particular state’s arrangements on
PSC. Each level has own peculiarities: scope, legal nature, application, etc.Therefore, the left two levels must be studied in detail and that is a purposeof this chapter.
3.1 IMO guidelines on PSC
The first IMO endeavour to bring the recommendatory framework of PSCoccurred in 1981.
20
Since that, there were few amending resolutions
21
withthe current version adopted in 2011.
22
Gradually, the IMO PSC guidelineshave been becoming well elaborated and sophisticated.The current resolution provides for the basic guidance (although it is quitethorough) for conduction of PSC inspections, encourages consistency in theconduction of such inspections and brings clarity for the procedure ofdeficiencies assessment. While discussing the issue of the IMO resolutionson PSC, the most important to highlight is their non-obligatory nature. Incontrast to some other IMO resolutions, which are made mandatory throughdirect reference to them in the IMO regulatory conventions such as SOLASand MARPOL,
23
the procedures for PSC has only persuasive character.
