Memorandum Of Understanding On Port State Control In The Asia-Pacific Region
Source: Unofficial
The Maritime Authorities of
Australia
New Zealand
Canada
Papua New Guinea
People's Republic of China
Philippines
Fiji
Russian Federation
Hong Kong, China
Republic of Singapore
Indonesia
Solomon Islands
Japan
Thailand
Republic of Korea
Republic of Vanuatu
Malaysia
Socialist Republic of Vietnam
hereinafter referred to as "the Authorities"
Recognizing the importance of the safety of life at sea and in ports and the growing urgency of protecting the marine environment and its resources;
Recalling the importance of the requirements set out in the relevant maritime conventions for ensuring maritime safety and marine environment protection;
Recalling also the importance of the requirements for improving the living and working conditions at sea;
Noting the resolutions adopted by the International Maritime Organization (IMO), and especially Resolution A.682(17) adopted at its 17th Assembly, concerning regional co- operation in the control of ships and discharges;
Noting also that the Memorandum is not a legally binding document and is not intended to impose any legal obligation on any of the Authorities;
Mindful that the principal responsibility for the effective application of standards laid down in international instruments rests upon the administrations whose flag a ship is entitled to fly;
Recognizing nevertheless that effective action by port States is required to prevent the operation of substandard ships;
Recognizing also the need to avoid distorting competition between ports;
Convinced of the necessity, for these purposes, of an improved and harmonized system of port State control and of strengthening cooperation and the exchange of information; have reached the following understanding:
Section 1 General
1.1 Each Authority that has accepted the Memorandum will give effect to the provisions of the present Memorandum.
1.2 For the purposes of the Memorandum, references to the "region", to "regional", to "regional ports" or to "regional port State control" mean the Asia-Pacific region, and references to "port State" means the States, and the territories recognized as Associate Members of IMO in which the ports are located.
1.3 Each Authority will establish and maintain an effective system of port State control with a view to ensuring that, without discrimination, foreign merchant ships calling at a port of its Authority, or anchored off such a port comply with the standards laid down in the relevant instruments as defined in section 2.
1.4 Each Authority, under the coordination of the Committee established pursuant to paragraph 6.1, will determine an appropriate annual percentage of individual foreign merchant ships, hereinafter referred to as "ships", to be inspected. The Committee will monitor the overall inspection activity and its effectiveness throughout the region. As the target, subject to subsequent review, the Committee will endeavour to attain a regional annual inspection rate of 75% of the total number of ships operating in the region. The percentage is based on the number of ships which entered regional ports during a recent base period to be decided by the Committee.
1.5 Each Authority will consult, cooperate and exchange information with the other Authorities in order to further the aims of the Memorandum.
Section 2 Relevant Instruments
2.1 For the purposes of the Memorandum, the following are the relevant instruments on which regional port State control is based:
.1 the International Convention on Load Lines 1966;
.2 the Protocol of 1988 relating to the International Convention on Load Lines, 1966;
.3 the International Convention for the Safety of Life at Sea, 1974 as amended;
.4 the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974;
.5 the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974;
.6 the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto;
.7 the International Convention on Standards for Training, Certification and Watchkeeping for Seafarers, 1978, as amended;
.8 the Convention on the International Regulations for Preventing Collisions at Sea, 1972;
.9 the International Convention on Tonnage Measurement of Ships, 1969; and
.10 the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147).
2.2 With respect to the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No. 147), each Authority will be guided by the instructions in chapter 4 of the Asia-Pacific Port State Control Manual (hereinafter referred to as the "Manual"). The implementation of ILO Convention No. 147 will not require any alterations to structure or facilities involving accommodation for ships whose keels were laid down before April 1, 1994.
2.3 In the application of the other relevant instruments, each Authority will be guided by the standards specified in chapter 3 of the Manual.
2.4 Each Authority will apply those relevant instruments which are in force and are binding upon it. In the case of amendments to a relevant instrument each Authority will apply those amendments which are in force and which are binding upon it. An instrument so amended will then be deemed to be the 'relevant instrument' for that Authority.
2.5 In applying a relevant instrument for the purpose of port State control, the Authorities will ensure that no more favourable treatment is given to ships entitled to fly the flag of a non-party to that instrument.
2.6 When inspecting ships for provisions of the relevant instruments to which it is a Party, the Authority as the port State will not impose standards on foreign ships that are in excess of standards applicable to ships flying the flag of that port State.
Section 3 Inspection Procedures, Rectification and Detention
3.1 In implementing this Memorandum, the Authorities will carry out inspections, which will consist of at least a visit on board a ship in order to check the certificates and documents, and furthermore satisfy themselves that the crew and the overall condition of the ship, its equipment, machinery spaces and accommodation, and hygienic conditions on board, meets the provisions of the relevant instruments. In the absence of valid certificates, or if there are clear grounds for believing that the crew or the condition of the ship or its equipment does not substantially meet the requirements of a relevant instrument, or the master or crew are not familiar with essential shipboard procedure relating to the safety of ships or the prevention of pollution, a more detailed inspection will be carried out. Inspections will be carried out in accordance with the Manual.
3.2 Clear Grounds
3.2.1 The Authorities will regard as 'clear grounds' inter alia the following:
.1 a report or notification by another Authority;
.2 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, shipboard living and working conditions or the prevention of pollution, unless the Authority concerned deems the report or complaint to be manifestly unfounded; and
.3 other indications of serious deficiencies, having regard in particular to the Manual.
3.2.2 For the purpose of control, specific `clear grounds' include those as prescribed in paragraph 2.3 of IMO resolution A.787(19) as amended and in chapter 7 of the Manual.
3.2.3 Nothing in these procedures should be construed as restricting the powers of the Authorities to take measures within their jurisdiction in respect of any matter to which the relevant instruments relate.
3.3 In selecting ships for inspection the Authorities will give priority to the following ships:
.1 passenger ships, roll-on/roll-off ships and bulk carriers;
.2 ships which may present a special hazard, including oil tankers, gas carriers, chemical tankers and ships carrying harmful substances in packaged form;
.3 ships visiting a port of a State, the Authority of which is a signatory to the Memorandum, for the first time or after an absence of 12 months or more;
.4 ships flying the flag of a State appearing in the three-year rolling average table of above-average detentions published in the annual report of the Memorandum;
.5 ships which have been permitted to leave the port of a State, the Authority of which is a signatory to the Memorandum, on the condition that the deficiencies noted must be rectified within a specified period, upon expiry of such period;
.6 ships which have been reported by pilots or port authorities as having deficiencies which may prejudice their safe navigation;
.7 ships carrying dangerous or polluting goods, which have failed to report all relevant information concerning the ships' particulars, the ships movements and concerning the dangerous or polluting goods being carried to the competent authority of the port and coastal State;
.8 ships which have been suspended from their class for safety reasons in the course of the preceding six months;
.9 ships referred to in paragraph 3.9; and
.10 type of ships identified by the Committee (referred to in paragraph 6.3) from time to time as warranting priority inspections.
The Authorities will pay special attention to oil tankers and bulk carriers of 10 years of age and over.
3.4 The Authorities will seek to avoid inspecting ships which have been inspected by any of the other Authorities within the previous six months, unless they have clear grounds for inspection. The frequency of inspection does not apply to the ships referred to in paragraph 3.3, in which case the Authorities will seek satisfaction whenever they will deem this appropriate.
3.5 Inspections will be carried out by properly qualified persons authorized for that purpose by the Authority concerned and acting under its responsibility, having regard to sections 2.4 and 2.5 of IMO resolution A.787(19) contained in chapter 3 of the Manual.
3.6 Each Authority will endeavour to secure the rectification of all deficiencies detected. On the condition that all possible efforts have been made to rectify all deficiencies, other than those referred to in 3.7, the ship may be allowed to proceed to a port where any such deficiencies can be rectified. The provisions of 3.8 apply accordingly. In exceptional circumstances where, as a result of the initial control and a more detailed inspection, the overall condition of a ship and its equipment, also taking the crew and its living and working conditions into account, are found to be substandard, the Authority may suspend an inspection. The suspension of the inspection may continue until the responsible parties have taken the steps necessary to ensure that the ship complies with the requirements of the relevant instruments. Prior to suspending an inspection, the Authority will have recorded detainable deficiencies in the areas set out in Appendix 1 of IMO resolution A.787(19) and ILO Convention deficiencies (Examples of detainable deficiencies are set out in chapter 7 of the Manual), as appropriate. In cases where the ship is detained and an inspection is suspended, the Authority will, as soon as possible, notify the responsible parties. The notification will include information about the detention. Furthermore it shall state that the inspection is suspended until the Authority has been informed that the ship complies with all relevant requirements.
3.7 In the case of deficiencies which are clearly hazardous to safety, health or the environment, the Authority will, except as provided in 3.8, ensure that the hazard is removed before the ship is allowed to proceed to sea. For this purpose appropriate action will be taken, which may include detention or a formal prohibition of a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous. In the event of a detention, the Authority will as soon as possible, notify in writing the flag State or its consul or, in his absence, its nearest diplomatic representative of all the circumstances in which intervention was deemed necessary. Where the certifying Authority is an organization other than a maritime administration, the former will also be advised.
3.8 Where deficiencies which caused a detention as referred to in paragraph 3.7 cannot be remedied in the port of inspection, the Authority may allow the ship concerned to proceed to the nearest appropriate repair port available, as chosen by the master and agreed to by the Authority, provided that the conditions determined by the Authority and agreed by the competent authority of the flag State are complied with. Such conditions will ensure that the ship shall not sail until it can proceed without risk to the safety and health of the passengers or crew, or risk to other ships, or without being an unreasonable threat of harm to the marine environment. Such conditions may include discharging of cargo, temporary repairs and/or confirmation from the flag State that remedial action has been taken on the ship in question. In such circumstances the Authority will notify the Authority of the ship's next port of call, the parties mentioned in paragraph 3.7 and any other authority as appropriate. Notification to Authorities will be made in accordance with chapter 7 of the Manual. The Authority receiving such notification will inform the notifying Authority of action taken in accordance with chapter 7 of the Manual.
3.9 If a ship referred to in paragraph 3.8 proceeds to sea without complying with the conditions agreed to by the Authority of the port of inspection: .1 that Authority will immediately alert the next port, if known, the flag State and all other Authorities it considers appropriate; and .2 the ship will be detained at any port of the Authorities which have accepted the Memorandum, until the company has provided evidence to the satisfaction of the Authority of the port State, that the ship fully complies with all applicable requirements of the relevant instruments.
3.10 If a ship referred to in paragraph 3.8 does not call at the nominated repair port, the Authority of the repair port will immediately alert the flag Sate and detaining port State, which may take appropriate action, and notify any other Authorities it considers appropriate.
3.11 The provisions of this section are without prejudice to the requirements of relevant instruments or procedures established by international organizations concerning notification and reporting procedures related to port State control.
3.12 The Authorities will ensure that, on the conclusion of an inspection, the master of the ship is provided with a document, in the form specified in chapter 7 of the Manual, giving the results of the inspection and details of any action taken.
3.13 When exercising control under the Memorandum, the Authorities will make all possible efforts to avoid unduly detaining or delaying a ship. Nothing in the Memorandum affects rights created by provisions of relevant instruments relating to compensation for undue detention or delay.
3.14 In the case that an inspection is initiated based on a report or complaint, especially if it is from a crew member, the source of the information must not be disclosed.
3.15 The company of a ship or its representative will have a right of appeal against a detention taken by the Authority of the port State. Initiation of the appeal process will not by itself cause the detention to be suspended. The port State control officer should properly inform the master of the right of appeal.
Section 4 Provision of information
4.1 Each Authority will report on its inspections under the Memorandum and their results, in accordance with the procedures specified in the Manual.
4.2 Arrangements will be made for the exchange of inspection information with other regional organizations working under a similar memorandum of understanding.
4.3 The Authorities will, upon the request of another Authority, endeavour to secure evidence relating to suspected violations of the requirements on operational matters of Rule 10 of the International Regulations for Preventing Collisions at Sea, 1972 and the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto. In case of suspected violations involving the discharge of harmful substances, an Authority will, upon the request of another Authority, visit in port the ship suspected of such a violation in order to obtain information and, where appropriate, to take a sample of any alleged pollutant.
Section 5 Training Programs and Seminars
The Authorities will endeavour to establish training programs and seminars for port State control officers.
Section 6 Organization
6.1 A Committee composed of representatives of each of the Member Authorities, defined in Annex 1 of the Memorandum, will be established. An Observer from each of the International Maritime Organization, the International Labour Organization, the Economic and Social Commission for Asia and the Pacific and any other intergovernmental organization or Maritime Authority recognized as observer referred in Annex 1 to the Memorandum will be invited to participate without vote in the work of the Committee.
6.2 The Committee will meet once a year and at such other times as it may decide.
6.3 The Committee will:
.1 carry out the specific tasks assigned to it under the Memorandum;
.2 promote by all means necessary, including training and seminars, the harmonization of procedures and practices relating to inspection, rectification and detention whilst having regard to paragraph 2.4;
.3 develop and review guidelines for carrying out inspections under the Memorandum;
.4 develop and review procedures for the exchange of information; and
.5 keep under review other matters relating to the operation and the effectiveness of the Memorandum.
6.4 A Secretariat will be established in accordance with the following principles:
.1 the Secretariat is a non-profit making body located in Tokyo;
.2 the Secretariat will be totally independent from any maritime administration or organization;
.3 the Secretariat will be governed by and be accountable to the Committee;
.4 the Secretariat will have a bank account into which all dues and contributions are made; and
.5 the Secretariat will operate from the established bank account in accordance with the budget determined by the Committee.
6.5 The Secretariat, acting under the guidance of the Committee and within the limits of the resources made available to it, will:
.1 prepare meetings, circulate papers and provide such assistance as may be required to enable the Committee to carry out its functions;
.2 facilitate the exchange of information; and
.3 carry out such other work as may be necessary to ensure the effective operation of the Memorandum.
6.6 The Asia-Pacific Computerized Information System (APCIS) in the Russian Federation is established for the purpose of exchanging information on port State inspections, in order to:
.1 make available to Authorities information on inspections of ships in other regional ports to assist them in their selection of foreign flag ships to be inspected and their exercise of port State control on selected ships; and
.2 provide effective information exchange facilities regarding port State control in the region.
Section 7 Amendments
7.1 The Memorandum will be amended by the following procedure:
.1 any Authority that has accepted the Memorandum may propose amendments to the Memorandum;
.2 the proposed amendment will be submitted through the Secretariat for consideration by the Committee;
.3 amendments will be adopted by a two-thirds majority of the representatives of the Authorities present and voting in the Committee, each Authority exercising one vote. If so adopted an amendment will be communicated by the Secretariat to the Authorities for acceptance;
.4 an amendment will be deemed to have been accepted either at the end of a period of six months after adoption by the representatives of the Authorities in the Committee or at the end of any different period determined unanimously by the representatives of the Authorities in the Committee at the time of adoption, unless within the relevant period an objection is communicated to the Secretariat by an Authority;
.5 any such objection will be considered by the Committee at its next meeting, and the amendment will be confirmed if it is accepted by a two- thirds majority of the representatives of the Authorities present and voting in the Committee at such meeting. In these circumstances, a quorum of more than half of the total number of representatives of the Authorities that comprise the Committee is required. In the event that the amendment is confirmed, the date of its deemed acceptance will be either at the end of a period of six months after being confirmed or any different period determined unanimously by the representatives of the Authorities in the Committee at the time of confirmation; and
.6 an amendment will take effect 60 days after it has been deemed accepted, or at the end of any different period of deemed acceptance as determined unanimously by the representatives of the Authorities in the Committee.
7.2 The Manual will be amended by the following procedure:
.1 the proposed amendment will be submitted through or by the Secretariat for consideration by the Authorities;
.2 the amendment will be deemed to have been accepted at the end of a period of three months from the date on which it has been communicated by the Secretariat or at the end of any different period determined unanimously by the Authorities, unless an Authority requests in writing that the amendment should be considered by the Committee. In the latter case the procedure specified in paragraph 7.1 will apply; and
.3 the amendment will take effect 60 days after it has been accepted or at the end of any different period determined unanimously by the Authorities.
Section 8 Administrative Provisions
8.1 The Memorandum is without prejudice to rights and obligations under any international instrument.
8.2 Any Maritime Authority meeting the criteria established in Annex 1 to the Memorandum may, with the unanimous consent of the Authorities present and voting at the Committee meeting, become a Member Authority of the Memorandum. For such an Authority, the Memorandum will take effect upon such date as may be mutually determined.
8.3 Any Maritime Authority or an intergovernmental organization wishing to participate as an observer as defined in Annex 1 to the Memorandum will submit in writing an application to the Committee and will be accepted as an observer subject to the unanimous consent of the representatives of the Authorities present and voting at the Committee meeting.
8.4 Any Authority may withdraw from the Memorandum by providing the Committee with 60 days notice in writing.
8.5 The Memorandum is signed at Tokyo on December 1, 1993 and will remain open for signature until the signing during the first meeting of the Committee to be held in 1994.
8.6 The Memorandum will be available for acceptance from April 1, 1994, and will take effect for each Authority, which has signed the Memorandum, on the date its acceptance is duly notified to the Secretariat.
8.7 The English text is the official version of the Memorandum.
This Memorandum is signed at Tokyo on December 1, 1993 by the following Authorities:
Australia
New Zealand
Canada
Papua New Guinea
Fiji
Philippines
Hong Kong, China
Russian Federation
Indonesia
Singapore,
Republic of
Japan
Solomon Islands
Korea,
Republic of
Thailand
Malaysia
Vietnam,
Socialist Republic of
This Memorandum is signed at Beijing on April 11, 1994 by the following Authorities:
China
People's Republic of
Vanuatu, Republic of
ANNEX 1
CRITERIA FOR MEMBERS AND OBSERVERS OF THE MEMORANDUM
1 Introduction
The present Criteria are established to define members and observers of the Memorandum and to determine terms and conditions of participation in the Memorandum by them.
2 Definitions
In the Memorandum the following two categories of participants are prescribed:
2.1 A Member Authority any Maritime Authority located in the region as defined in 1.2 of the Memorandum that has duly signed and accepted, and adheres to all the terms and conditions of the Memorandum is considered to be a Member Authority of the Memorandum, provided that the qualitative criteria set out in section 3 have been met; and
2.2 An Observer - any Maritime Authority or an intergovernmental organization wishing to participate in the Memorandum is considered to be an observer, provided that it has been accepted in accordance with 8.3 of the Memorandum.
3 Qualitative Criteria for a Member Authority
A Member Authority of the Memorandum as referred to in 2.1 of the present Criteria will:
3.1 explicitly subscribe to the commitments under the Memorandum with a view to contributing to the common endeavour to eliminate the operation of sub- standard ships;
3.2 take all necessary measures to encourage the ratification of all relevant instruments in force;
3.3 provide sufficient capacity, logistically and substantially, to appropriately enforce compliance with international maritime standards regarding maritime safety, pollution prevention and living and working conditions on board with regard to ships entitled to fly its flag, which includes the employment of properly qualified inspectors acting under the responsibility of its Administration, to be demonstrated to the satisfaction of the Committee referred to in 6.1 of the Memorandum;
3.4 provide sufficient capacity, logistically and substantially, to comply in full with all provisions and activities specified in the Memorandum in order to enhance its commitment, which include the employment of properly qualified port State control officers acting under the responsibility of its Administration, to be demonstrated to the satisfaction of the Committee referred to in 6.1 of the Memorandum;
3.5 as of its effective date of membership, establish a connection to the information system referred to in 6.6 of the Memorandum;
3.6 sign a financial agreement for paying its share in the operating cost of the Memorandum and will pay its financial contribution to the budget of the Memorandum;
3.7 take part in the activity of the Committee referred to in 6.1 of the Memorandum; and
3.8 take all necessary efforts as a flag State body to decrease their detention rate.
Assessment of compliance with the above conditions will only be valid for each individual case and will not create a precedent for any future cases, either for the Authorities present under the Memorandum, or for the potential new signatory.
