Port State Control: Different Interpretations & applications
Maritime shipping is probably one of the oldest businesses in the world. It is also by nature perhaps the most international business. It cannot be regulated by any national law because its activities go far beyond the borders of any nation. There are many international conventions and protocols that regulate safety and security of maritime operations and protection of the marine environment. There is no international police force to ensure compliance of the provisions of these treaties.
Member states of the International Maritime Organization, being parties to the instruments implement them in their role both as flag state of the ship concerned and port state where the vessel may call. The responsibilities are complementary to one another. It is the primary responsibility of the flag state to ensure that ships comply with all international safety requirements no matter where they are. It is the responsibility of the port state to ensure similar compliance by all ships operating within its jurisdiction.
Port State Control (PSC) is done for and on behalf of the flag state. The administration must ensure that the visiting ships maintain the same standard of safety as their own ships. The philosophy is that life and environment are important, irrespective of the ship's ownership. That is why a ship may be detained if, in the opinion of the inspector, allowing the ship to proceed to sea may pose danger to life, property or environment. Unless there is genuine threat to life, property or environment, a foreign flag ship is normally not detained. In case of a detention, the flag and port state administrations work together to rectify the deficiencies to a mutually satisfactory level.
In order that ships are not inspected repeatedly one port after another, member states have formed regional networks (known as memorandum of understanding -- MOU) under IMO guidelines for coordinated inspections. It is all done in the spirit of cooperation for the common cause of safety, security and environmental protection.
Unfortunately, things have changed. Greed has replaced cooperation with corruption, where an inspector finds a number of faults to threaten a ship with detention. A suitable bribe allows the ship to continue for the deficiencies to be rectified in the next port or some time later. There is another way. The inspector finds some defects and then recommends a good local workshop for the job. The inspector gets his reward from the workshop.
Recently, we have been coming across another problem -- state sponsored extortion. The recent economic recession has forced many countries to tighten their belts. The Spanish government instructed the Treasury Office inspectors to increase survey and inspection work to raise an additional €4 billion. The Spanish Law Article 115.3 Law 27/ 92 requires the master of a foreign ship to give truthful declaration of any deficiencies of the ship.
If the PSC inspector finds any fault or deficiency other than what is stated by the master of the ship, then the ship is served with an arrest order by the harbour master. The ship is then fined anything between €60 and 90 thousand. The ship is not released until the money is paid in cash or by bank guarantee. Most owners prefer to pay cash because bank transactions take time and the ship remains stranded. The whole operation in any Spanish port is coordinated by the Government Head Office of PSC in Madrid. We understand that normally non-EU ships are victims of this operation.
The above practice is wrong and unlawful. It is certainly not expected from an EU state. Spain must change its domestic law, which is not consistent with international law. Any state can have standards higher to those specified in international conventions (for its own ships) but cannot apply or impose that to visiting foreign ships. The provision of PSC under SOLAS, LL, MARPOL, STCW and other conventions are for safety, security and protection of environment. PSC provisions are not supposed to be used for raising revenue. This is because fines/ penalty cannot replace safety.
Ships may be detained for safety reasons until the threat is removed. The order of arrest is normally issued by a court against lien or claim and has nothing to do with safety. Besides, PSC is supposed to be exercised by surveyors belonging to the national administrations and not by officials of the port authority, who have vested interest with period of stay of the ship for collection of fees and charges.
The matter, unless immediately rectified by the Spanish government, should be taken up on the floor of the IMO for violation of ethical standards specified in international conventions. European Maritime Safety Agency (EMSA), of which Spain is a member, should also look into the matter. Spain should be suspended from the Paris MOU until it fully respects international law, practice and procedures. The world community of shipping must not remain silent. We have to expose this sort of state sponsored illegal acts. We must name and shame all involved in such activity so that no other state can think of doing such things.