Implementation of international conventions through port state control: an assessment

Marine Policy 1994 18 (5) 379-392

Implementation of international conventions through port state control : an assessment

Peter Bautista Payoyo

The institution of port state control has attracted widespread attention as an effective mechanism for implementing international maritime conventions . The paper examines the implementation of the International Convention for the Prevention of Pollution from Ships and the 1976 Merchant Shipping (Minimum Standards) Convention under the 1982 Paris Memorandum of Understanding on Port State Control . In seekIng to eliminate substandard ships through a regional campaign to enforce relevant conventions, the Paris MOU has been a costly process that has achieved only qualified success . However, the experience of cooperation within the regime has produced remarkable results which demonstrate the broader possibilities of port state control . Peter Payoyo is with the Dalhousie Law School, 6061 University Avenue, Halifax NS, Canada B3H 41-19 . "Implementation of IMO standards-the key to success' (MO News 1993 (3) -XVI . The technical cooperation program of the NO has been reorganized to assist developing countries in adopting and implementing IMO's rules and standards . See IMO News 1993 (2) 14 ; IMO News 1993 (1) 24 ; IMO News 1992 (4) 24 ; 1100 News 1989 (3) 2 . 2 Kasoulides, G 'Port state enforcement regime through international organizations' in Soons, A (ad) Implementation of the Law of the Sea Convention Through International Institutions 187 Law of the continued on page 380

A prominent feature of current policy in the International Maritime Organization (IMO) is its aggressive emphasis on the implementation of international conventions .' Intimately connected with this concern is the growing attention given to the institution of port state control (PSC), whose significance as a regional undertaking has been demonstrated in Europe, 2 and was recently affirmed by the IMO . ; As a technique for implementing various IMO standards in the areas of safety and marine environmental protection, PSC has definitely become an accepted fact in the shipping world of the 1990s . 4 It complements, and in some respects overshadows, the role of the flag state s in the implementation of international maritime legislation . The optimism about the possibilities of PSC is mainly a result of the European experience under the 1982 Paris Memorandum of Understanding on Port State Control (MOU) . ° This regional experiment, which is now being replicated elsewhere in the world, is regarded as an ongoing success that points to a major global strategy in combating substandard ships .' If this is the case, the question of why PSC is indispensable in the drive towards a vision of `safer ships and cleaner seas' deserves close scrutiny . This paper examines the Paris MOU as an operational model for the implementation of international maritime conventions . It confronts the issue of in what concrete way the European experience has proved exemplary, and at what cost . Specifically, an attempt is made to clarify the status of the Paris MOU from the viewpoint of its record in enforcing international standards, particularly those embodied in the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), and the 1976 Merchant Shipping (Minimum Standards) Convention (ILO 147) . This is a necessary first step in the determination of the extent to which the Paris MOU regime has succeeded in the campaign to eliminate substandard ships .' Through the statistics and other empirical data published by the Paris

0308-597X/94/050379-14 © 1994 Butterworth-Heinemann Ltd

379



Implementation of international conventions through port state control: P B Payoyo 12 10 337

111

9842 10101

10 455

9164 8328 7686 N

a c m n 3 0 L F-

Figure 1 . Numbers of individual ships inspected under Paris MOU .

Source: MOU Annual Reports (1983/8492) . continued from page 379 Sea Institute (1990) 187 ;'A European view on port state control . A summary of the history of the Memorandum of Understanding on Port State Control and a view on its future development' Presented at Pacem In Maribus XVIII Rotterdam, Netherlands (1990) (unpublished paper ; copy on file with author) . 'Regional cooperation in the control of 3 ships and discharges' IMO Resolution 682 (6 Nov 1991) 17 : See also IMO Document FSI 1/WP.2 (21 Apr 1993) . 4 Resistance to the European practice of PSC, which was pervasive during PSCs' initial years in the early 1980s, has largely disappeared . See 'The Paris Memorandum - a ten year old adult' Document PSCC20/03A MOU Secretariat (26 May 1992) (copy on file with author) . 5 Because of the ineffective or inconsistent character of flag state control at the global level, the IMO created the Sub-committee on Flag State Implementation, a subcommittee of both the Maritime Safety Committee and the Marine Environmental Protection Committee . See IMO News 1993 (1) 17, 18 . °Original text reprinted in ILM (1982) 21 1 (a copy of the amended Memorandum of Understanding incorporating its 11th Amendment is on file with the author) . For a description of the Paris MOU, see Lowe, A 'A move against substandard shipping' Marine Policy 1982 6 326. 71MO News 1993 (3) II . 9 Schiferli, R W J'Regional concepts of port state control : a regional effort with global effects' Presented at Pacem In Maribus XXI Takaoka City, Japan (8 Sep 1993) (copy on file with author) . 9An evaluation of the two main principles of the Paris MOU regime (control and cooperation) is given in Payoyo, P 'Port state control in the Asia-Pacific : an international continued on page 382

380

1983

MOU MOU

1984

1985

1986

1987 1988

1989

1990

1991

1992

10 one can actually gauge the impact of the Paris relevant instruments being enforced by the regime . Using such data, this paper first characterizes the general trends in PSC inspections under the Paris MOU . Then, the enforcement profile of the two above-mentioned conventions within the MOU framework is Secretariat,

on the

briefly analyzed, keeping in mind the ultimate objective of eliminating

substandard ships . The next section explores the issue of cost, after which some conclusions are drawn about the future of regional cooperation on PSC .

General profile of PSC inspections The Paris MOU Secretariat admits that, in the absence of any better criteria, the quantity of PSC inspections is one indicator that can be relied upon in measuring the impact of PSC in the region ." It should be added that, until recently, the statistical information derived from PSC inspections has provided the basis upon which particular decisions of the PSC Committee 12 were made . For instance, as a result of statistics yielded by the Paris MOU, a recent resolution was adopted to target particular flags for priority inspection . 13 In the future, it may be expected that more reliance will be placed on PSC statistical information, or its interpretation, in the decision-making process under the Paris MOU . Figure 1 shows the number of individual ships that were subject to PSC from the commencement of the regime up until 1992 . 14 Figure 2 shows the number of port state inspections carried out . Figures 1 and 2 show a trend of increasing magnitude over the years . With the growing numbers of individual ships inspected and inspections carried out, one notes the increasing numbers of deficiencies identified during PSC inspections. These numbers are given in Figure 3, which shows that the highest number of deficiencies was recorded in 1992 . Figure 4 is broken down into deficiency categories, and it shows that, over a ten year period, deficiencies relating to life saving and firefighting appliances account for the highest averages of deficiencies

recorded . Marine Policy 1994 Volume 18 Number 5



Implementation of international conventions through port state control : P R Payoyo 18

12 459 740 11451 11224

ur 3 D t I-

Figure 2. Numbers of port state inspections under Paris MOU . Source: MOU Annual Reports (1983/8492) .

1983

1984

1985

1986

1987

1988 1989

1990

1991

1992

30

25

20 N C C N 7 ; L

15

10

5 Figure 3. Numbers of deficiencies . Source: MOU Annual Reports (1983/8492) .

0

Firefighting appliances 17 .08

Figure 4. Categories of major deficiencies as average percentages of total number of yearly deficiencies . Source : MOU Annual Reports (1983/8492) .

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Ship's certificates 8 .11

38 1

Implementation of international conventions through part state control : P B Payoyo

Figure 5. Deficiency rates (see Tables 1 and 2) . Note: A deficiency rate expresses the number of deficiencies in relation to the annual numbers of individual ships and inspections . Rising rates indicate that there are more deficiencies per individual

ship and per inspection . See, for example, MOU Annual Report (1991) 30 . ∎ : ships ; + :inspections .

Source: MOU Annual Reports (1983/8492) . continued from page 380 legal study of port state jurisdiction' LLM Thesis Dalhousie University, Canada (Jul

1993) . 10The Paris MOU Secretarial publishes annual reports from which the statistical information used here is taken .

11 MOU Annual Report (1992) 31 . 12 The committee is the executive body with the task, under the Paris MOU, of overseeing the implementation of the re-

gional agreement. See Section 6.3 of the Paris MOU . t3 The 18 flags involved are those of Romania, St Vincent and Grenadines, Honduras, India, Morocco, Malta, Egypt, Iran, Syrian Arab Republic, Lebanon, Panama, Cyprus, Turkey, Algeria, Liberia, Bahamas, Netherlands' Antilles, and Antigua and Barbuda . The MOU Annual Report (1992) (p 24) states that [ill was considered appropriate to nominate those flag States which had shown an above average detention record in the last three consecutive years. Flag States with an above average detention record over the last two consecutive years should be given notice in advance that

they run the risk of being included in the list of the following year it their current detention record is to continue .

79The Paris MOO Secretariat adopted a calendar year reporting period in 1987 . 15 Bettink, H W 'Open registry, the genuine link and the 1986 Convention on Registration Conditions for Ships' Netherlands Yearbook Int Law 1987 18 69 ; McConnell, M "Business as usual" : an evaluation of

the 1986 United Nations Convention on Conditions for Registration of Ships'

continued on page 383

The MOU annual reports use the concept of 'deficiency rate' to express the relationship between the number of deficiencies on the one hand, and the number of ships and the number of inspections on the other. The rising 'deficiency rates' shown in Figure 5 and Table 1 imply that more deficiencies per inspection and per individual ship have been observed since 1987 . This means that more substandard ships and conditions are discovered every year . Further, the trend suggests that, very roughly, the 'rectification rate' achieved by the Paris MOU is also increasing . (Deficiencies must be rectified before a ship is allowed to leave port . It is assumed that, in most instances in which deficiencies are identified, a rectification follows . The rising deficiency rates thus suggest a corresponding rise in the rectification rate .) With regard to the delays or detentions effected under the Paris MOU, Figure 6 shows that a decreasing number of ships were delayed or detained during the initial years of the Paris MOU regime . However, starting in 1987 the number of delays and detentions consistently rose . The 'detention/delay rate' relating to the ships inspected annually is shown in Figure 7 and Table 2, confirming what has already been shown by the information on deficiency rates : since 1987, the higher the number of ships inspected, the higher the number of the ships that are detained or delayed . The period 1986/87 seems to mark a turning point in the overall outcome of inspections . Although the reasons for this development are not at all clear, it is probable that the increasing trend in substandardness since this time was a consequence of the conclusion in 1986 of the UN Conference on Conditions for Registration of Ships, which is considered as generally having failed to establish adequate measures to confront the problem of flags of convenience and/or substandard ships . 15 In Figure 8, the overall average of delays and detentions is distributed Table 1 . per ency rates (see Figure 5). Year

1984 1985 1986 1987 1988 1989 1990 1991 1992

382

Ships deficiency rates 1 .93 1 .69 1 .80 1 .60 1 .80 2.03 2.30 2 .57 2.60

Inspections deficiency rates

1 .45 1 .28 1 .34 1 .45 1 .35 1 .49 1 .62 1 .80 1 .84

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Implementation of international conventions through port state control: P B Payoyo

88

476

307

Figure 6. detentions . Source: MOU

Numbers

of

delays/ 1983

Year

Delays/detentions (°h)

1982-83 1984 1985 1986 1987 1988 1989 1990 1991 1992

5.61 6 .19 4 .52 3 .52 2 .71 3 .52 3 .75 4AS 5.20 5 .62

continued from

page 382

1 280 11 1

Annual Reports (1983!84-

92) .

Table 2. Delays/detentions as percentage of all Individual ships Inspected (see Figure 7) .

295

984

1985

1986

1987

1988

1989 1990

1991

1992

according to ship types . General dry cargo and dry bulk carriers are the categories of ships most likely to he detained or delayed after a PSC inspection . Of the number of inspections of bulk carriers carried out in 1991 and 1992, a little fewer than 50% (49 .73% and 49 .30%, respectively) of these inspections revealed deficiencies . These were higher percentages than those for other ship types . The poor record of bulk carriers in the Paris MOU has been confirmed by IMO Resolution A .713(l7), which identified bulk carriers as deserving of special attention for PSC . tb As a consequence, an amendment to the Paris MOU 17 was adopted that rendered bulk carriers susceptible to targeting for special attention in relation to PSC inspections under the Paris MOU .

JMLC 1987 18 435; Sturmey, S 'The

United Nations Convention on Conditions for Registration of Ships' Lloyds Maritime and Commercial Law Quarterly 1987 97. t6MOUAnnual Report (1992) 24, 25 .

Y7See Section 3 .3 of the Paris MOU . '$See, for example, Brownlie, I 'The human environment : problems of standards setting and enforcement' Nat Res J 1972 continued on page 384

Enforcement of MARPOL 73178 standards under Paris MOU The jurisdictional issues pertaining to the power of the port state in relation to marine environmental protection has been sufficiently elaborated in the literature .' 8 Although there is a consensus that port state enforcement (under the framework of either the 1982 Law of the Sea 7

5 4 3

Figure 7 . Delays/detentions as percentages of number of all individual ships inspected (see Table 2) . Note : ∎ : ships ; + : inspections . Source: MOU Annual Reports (1983!84-

92) .

Marine Policy 1994 Volume 18 Number 5

1 0 1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

383

implementation of international conventions through port state control: P B Payoyo

General dry cargo 53%

Figure 8 . Categories of ship delays/ detentions as approximate ten-year average percentages of total number of delays/detentions . Note: Actual averages may slightly exceed indicated figures . Inspection reporting commenced in the MOU Annual Report (1983/84) . Earlier MOU Annual Reports included 'unitized vessels', and 'supply ships' . 'Passenger ships and ferries' was included as a ship category in 1987, and 'ro-rolcontainer/vehicle carriers' in 1988 . Source: MOU Annual Reports (1983/8492) .

continued from page 383 12 187 ; Lowe, A 'The enforcement of marine pollution regulations' San Diego Law Review 1975 12 624 ; Brown, E D'The

prevention of marine pollution by oil from ships : competence to establish standards and competence to enforce standards' Current Leg Problems 1975 28 199 : Legatski, R 'Port state jurisdiction over vessel-source pollution' Harvard Environmental Law Review 1977 2 448 ; Bern-

hardt, J 'A schematic analysis of vesselsource pollution : prescriptive and enforcement regimes in the Law of the Sea Conference' VA J Int Law 1980 20 265; Timagenis, G R International Control of Marine Pollution - Part Ill and Part IV (1980) (two volumes) ; Cycon, D 'Calming

troubled waters : the developing international regime to control operational pollution' J MLC 1981 13 35 ; Dempsey, P 'Compliance and enforcement in international law - oil pollution of the marine environment by ocean vessels Northwestern J lot Law & Business 1984 6 459 ;

Valenzuela, M 'IMO : public international law and regulation' in Johnston, D and Letalik, N (eds) The Law of the Sea and Ocean Industry: New Opportunities and Restraints Law of the Sea Institute (1984) 141 ; Abecassis, D and Jarashow, R (eds) Oil Pollution from Ships 1985 11-114 ;

Boyle, A 'Marine Pollution under the Law of the Sea' A J int Law 1985 79 347 ; Sohn, L 'Implications of the Law of the Sea Convention regarding protection and preservation of the marine environment' in Krueger, R and Riesenfeld, S The Developing Order of the Oceans Law of the Sea Institute (1985) 103 ; Valenzuela, M 'International maritime transportation : selected issues of the Law of the Sea' in Soons, A led) Implementation of the Law of the Sea Convention Through International Institutions Law of the Sea Institute (1990) 187 ; McConnell, M and Gold, E 'The modern Law of the Sea : framework for protection and preservation of the marine environment?' Case Western Res J lot Law 1991 83 ; Churchill, R and Lowe, continued on page 386 384

Passenger/ferries 1% Chemical carriers 5 Tankers/combn carriers

11

RO-RO/container/ vehicle 4%

Convention in general, or MARPOL 73/78 in particular) is a promising solution to the problem of ship-source pollution, little evidence has been offered to corroborate this claim . Moreover, in spite of empirical studies on the favorable enforcement of MARPOL 73/78 by port states, 19 the impact of the Paris MOU on the implementation of MARPOL 73/78 has never been exactly determined . The 1992 MOU annual report'-" includes, for the first time, MARPOL as one major category in the chart showing major deficiency categories as a percentage of the total number of deficiencies . In this scheme, the overall MARPOL 73/78 deficiencies were calculated by adding together the number of deficiencies specified under the `Marine pollution Annex I' and `Marine pollution - Annex II' deficiency categories . This method is followed in the current study, but there arc two caveats . First, MARPOL 73/78 violations can also be found under other specific deficiency categories listed in the annual reports, such as `ship's certificates', or `deficiencies specific to tankers' . It is understood, therefore, that the 1992 MOU annual report and this assessment reveal only the minimum number of MARPOL 73/78 deficiencies . Second, the enforcement of Annex I (prevention of pollution by oil) and Annex II (pollution by noxious liquid substances in bulk) standards, as reported, refers merely to the discovery of deficiencies in the normal course of Paris MOU inspections, and it does not exhaust all the forms of PSC action under MARPOL 73/78 . 21 In this sense, the reported MARPOL 73/78 enforcements are again a minimum . Figure 9 shows the absolute numbers of MARPOL 73/78 deficiencies classified as Annex I, Annex II and certificates 22 deficiencies . Figure 10 shows the relationship of these aggregate MARPOL 73 .78 deficiencies to the total number of deficiencies in terms of the percentage share of these minimum MARPOL 73/78 deficiences . From these figures, it can be maintained that, although the deficiencies related to certificates and Annex II have relatively decreased, Annex I deficiencies have been increasing in absolute and relative terms . The trend in Annex I deficiencies can be confirmed by comparing the MARPOL 73/78 deficiency 23 rates with the total number of ships and the total number of annual inspections . This is shown in Figure 11 and Table 3 . With more individual ships being inspected and inspections being carried out, an increasing number of MARPOL 73/78 deficiencies are detected under PSC . This follows the general pattern of overall deficiency rates described above .

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Implementation of international conventions through port slate control : P 8 Payoyo 1600 1368

1400 1200 986

1000 800 652 578572 553

600

571

427 400 313 Figure 9 . MARPOL 1973/1978 numbers of deficiencies .

200

Source : MOO Annual Reports (19838492) .

0

i11 1984

1985

1986

1987

1988

1989

1990

1991

1992

Figure 10 . MARPOL 1973/78 Annex I and Annex II deficiencies as percentages of total number of deficiencies . Source : MOU Annual Reports (1983/84-

984

92) .

1985

1986

1987

1988

1989

1990

1991

1992

20

15

Figure 11 . MARPOL 1973/78 deficiency rates (see Table 3) . Note : Each of these deficiency rates expresses the number of MARPOL 1973/78 deficiencies in relation to the total numbers of ships and inspections . ∎ : ships ; + : inspections . Source : MOU Annual Reports (1984/85-

92) .

Marine Policy 1994 Volume 18 Number 5

10

5

0 1984

1985

1986

1987

1988

1989

1990

1991

1992

385



Implementation of international conventions through port state control : P B Payoyo Table 3. Year 1984 1985 1986 1987 1988 1989 1990 1991 1992

continued from page 384 A V The Law of the Sea (2nd ad) (1991) 245-260 (Chapter 13) . i9See, for example, Operational Discharges from Ships. An Evaluation of the Application of the Discharge Provisions of the MARPOL Convention by its Contracting Parties AIDEnvironment, Netherlands (1992) ; Titz, M 'Port state control versus marine environmental protection' Maritime Pot & Management (1989) 189. The latter study concludes that PSC 'has been effective in preventing marine environmental pollution but could improve its performance marginally' . This article does not, however, make an extensive intrinsic analysis of the statistical data on PSC, inasmuch as the period covered by the study is limited to 1982-86 . By establishing correspondences between 'environmentally relevant deficiencies' under the PSC database and external data from a 'pollution likelihood analysis' file, Titz argues that PSC partly succeeds in identifying potential polluters . Methodologically, while the study offers a broad statisticsbased argument on why PSC is effective, it lacks explanations, or an explanatory background, specifically linking PSC with marine environmental protection . One wonders why the 'versus' in the article's title is never explained . See also Ijlstra, T 'Enforcement of MARPOL : deficient or impossible?' Marine Pollution Bulletin 1989 20 596 . Cf. Kasoulides, G 'Paris Memorandum of Understanding : a regional regime of enforcement' in Freestone, D and Ijlstra, T The North Sea : Perspectives on Regional Environmental Cooperation (1990) 180 . 20 See p 46 of MOU Annual Report (1992) . 21 Allowable forms of enforcement action that can be attributed to port states under MARPOL 73/78, which can be conveniently described as the definition of port state jurisdiction under MARPOL 73/78, are the following :

• Causing proceedings to be taken in accordance with the law of the port state party to MARPOL 73/78, when any violation of the requirements of the convention occurs within its jurisdiction (see Article 4(2)(a) of MARPOL 73/78) or furnishing the administration of the ship with such information and evidence as may be in its possession that a violation of MARPOL 73/78 has occurred (see Article 4(2)(b) of MARcontinued on page 387

3 86

MARPOL 1973-78

deficiency rates (see Figure 11).

Ships deficiency rates 14.85 13 .66 13.19 10.65 12.55 12 .58 14.10 14.68 17.22

Inspections deficiency rates 11 .16 10 .36 9 .80 9 .62 9 .31 9 .25 9 .92 10 .31 12 .18

What the above inspection results reveal with respect to the effectiveness of the Paris MOU is fairly straightforward . The fact that more and more MARPOL 73/78 deficiencies are being discovered by PSC proves that the regime has sustained its ability to enforce MARPOL 73/78 standards . However, the institution of concerted PSC has not obviously led to a reduction in MARPOL 73/78 violations in the region . Instead, one observes the rise of MARPOL 73/78 infractions . If this deterioration exists in a region which is already rigorously policing MARPOL 73/78 violations, it is not difficult to imagine the magnitude of MARPOL violations occurring in the rest of the world . It will be recalled that MARPOL 73/78 is the most important international convention on marine pollution to date that is in effect . 24 The special type of jurisdiction allocated to the port state in this convention, whose exercise was made compulsory under the Paris MOU, 25 has definitely allowed a glimpse of the extent to which MARPOL 73/78 standards are being breached . From the standpoint of the implementation of MARPOL 73/78, the Paris MOU has not induced a reduction in the number of substandard ships operating in the region, but it has certainly confirmed an aggravation of the regional, if not global, situation in terms of ships' compliance with MARPOL 73/78 .

Enforcement of ILO 147 standards under Paris MOU To determine the extent of the enforcement of ILO 147 26 in the Paris MOU, it is necessary to examine some historical details . The appendix to ILO 147 lists 11 regulatory areas for compliance that define the standards for social and working conditions on board ship . 27 In the original Paris MOU text, as well as in the 1978 Hague Memorandum, only six of these have been considered for enforcement under port state control : minimum age, medical examination, food and catering, crew accommodation, accident prevention and occupational health, and .28 officers' competency certificates Sometime in 1987, against the background of the Ministerial Declaration the previous year that made reference to the 1987 Maritime Session of the ILO' and growing public interest in the working conditions of seafarers, the Netherlands Government invited the PSC Committee to re-examine ILO 147 `to see whether requirements, subject to objective inspection, could be added to Annex 1 to the memorandum' . 30 As a result of the review, amendments to the Paris MOU were introduced, and became effective on 11 May 1989 . 31 These amendments were again amended the following year as a result of developments in the ILO . The October 1989 ILO Meeting of Experts on the Procedures for Inspection of Labour Conditions on Board Ships32 saw the adoption of the document Inspection of Labour Conditions on Board Ship .' Guide-

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implementation of international conventions through port state control : P B Payoyo

continued from page 386

lines for Procedure . 33 At its November 1990 meeting, the PSC Commit-

• Inspecting a ship required to hold a certificate under the convention while this ship is in any of its ports or offshore terminals . This inspection is 'limited to verifying that there is on board a valid certificate, unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that certificate . In that case, or if the ship does not carry a valid certificate, the Party carrying out the inspection shall take steps as will ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment . That Party, may, however, grant such a ship permission to leave the port or off-shore terminal for the purpose of proceeding to the nearest appropriate repair yard available' (see Article 5(2) of MARPOL 731

tee decided to have the guidelines referred to or reflected in the Paris MOU . 34 The redrafting of the Paris MOU to take account of the guidelines led to the current text of the Paris MOU relating to the scope of ILO 147 in the Paris MOU . Note that the final text of the most recent amendments 35 do not incorporate, in a legal sense, the guidelines in the Paris MOU . The latest Paris MOU provisions on ILO 147 simply make reference to the guidelines, and clarify the position of a surveyor, and therefore the Paris MOU, in relation to these guidelines . 36 As it now stands, the Paris MOU ranks or classifies the ILO 147 appendix conventions or standards into two groupings, depending on whether violations of or deficiencies related to a particular convention can lead to the delay or detention of a ship . Convention provisions which, with respect to the control functions of the surveyor, can be enforced on a ship with the threat of delay or detention for noncompliance with their standards are those dealing with minimum age, medical examinations, the prevention of accidents, crew accommodation, food and catering, and officers' competency certificates . 17 In this respect, the Paris MOU provides that the surveyor shall `use his professional judgment to determine whether the conditions on board give rise to a hazard to the safety or health of the crew which necessitates the rectification of conditions, and may if necessary detain the ship until appropriate corrective action is taken' . 38 On the other hand, the conventions/standards in ILO 147 for which enforcement under PSC does not palpably require the immediate rectification of relevant deficiencies, or lead to the delay or detention of a ship (and that are, therefore, excluded from the main sanctioning procedure, or the control regime, of the Paris MOU) are as follows :

POL 73178) .

78) .

• Inspecting a foreign ship 'for the purpose of verifying whether the ship has discharged any harmful substances in violation of the provisions of the Regulations. If an inspection indicates a violation of the Convention, a report shall be forwarded to the Administration for any appropriate action' (see Article 6(2) of MARPOL 73/78). • Inspecting a foreign ship upon request by any party to the convention (see Article 6(5) of MARPOL 73/78). • Denying a foreign ship entry into its ports or offshore terminals for the reason that the ship does not comply with the provisions of MARPOL 73/78 (see Article 5(3) of MARPOL 73/78) . 22That is, the International Oil Pollution Prevention-certificate and the Noxious Liquid Substance-certificate. These deficiency items are not listed under the MARPOL 73/78 Annex I and Annex II deficiency categories . 23That is, those relating to Annex l, Annex II and the certificates . 24Gold, E Handbook on Marine Pollution (1985) 39.

25The significance of mandatory PSC under the MOU regime, as opposed to the permissive regime of PSC defined in the relevant international instruments providing for PSC, is described in Payoyo, P, op cit, Ref 9. 26For a discussion of the port state control provision in ILO 147, see Osieke, E 'The International Labor Organization and the Control of Substandard Merchant Vessels IC Law Quarterly (1981) 30 479 .

27That is, (a) a minimum age, (b) sickness and medical care, (c) medical examination, (d) the prevention of accidents, (e) crew accommodation, (f) food and catering, (g) officers' competency, (h) seamen's articles of agreement, (i) the repatriation of seamen, (j) freedom of association, and (k) the right to organize and collective barcontinued on page 388

Marine Policy 1994 Volume 18 Number 5

• the Seamen's Articles of Agreement Convention 1926 ; • the Repatriation of Seamen Convention 1926 ; • the Shipowners' Liability (Sick and Injured Seamen) Convention 1936 or the Sickness Insurance (Sea) Convention 1936 or the Medical Care and Sickness Benefits Convention 1969 ; • the Freedom of Association and Protection of the Right to Organize Convention 1948 ; • the Right to Organize and Collective Bargaining Convention 1949 . 39

This Paris MOU provision, and the next one quoted below, are new in the context of the Paris MOU . In the 1982 Paris MOU text, no reference was made to the above conventions ; their status in the Paris MOU was thus unknown . With the amendments, a control action is ascertained that relates to the standards involved : If the surveyor receives a complaint to the effect that the standards laid down in the conventions listed in paragraph 4 .3 are not met, the matter should he reported to the nearest maritime, consular or diplomatic representation of the flag state for further action . If deemed necessary, the appropriate authority may prepare a report to the flag state, if possible with evidence, with a copy to the ILO . 40 It is clear that the latest elaboration of ILO 147 in the Paris MOU has not changed the situation which existed since 1982, or, for that matter, since 1978 . 41 Note that the control action for the conventions outside the sanctioning process of the Paris MOU is passive : it does not entail any initiative or active investigation on the part of the surveyor, and there is 387



Implementation of international conventions through port state control,' P B Payoyo

no directive to inspect relevant standards or labor conditions defined in these conventions . Even cognizance of deficiencies or violations of these

continued from page 387

gaining-

28Except for the last, the five subjects are standards, suspected or real, can only be taken after a complaint is

subsumed under the section on accident received . A complaint then leads, ostensibly but not compulsorily, to prevention, health and hygiene . Officers' certificates of competence are treated the filing of a report for proper follow-up action by the flag state . In under the section on minimum manning short, there is a renvoi, as it were, of the locus of enforcement back to standards The . See Annex s of the Paris i the flag state . As a consequence of the amendments, the Paris MOU 2eThe The text of declaration is reproduced in adopts a more liberal position vis-a-vis the guidelines, the latter the1985/86MOUAnnual Report Annex 7 . 30MOU Annual Report (1987) 9, 10 . implying the possibility of not only delay or detention, but also active Annual Report Ann 10 . The inspection of all the labor standards involved, including direct port state appropriate appropriate section title in Annex 1 was a changed to 'Accident prevention, health action to rectify deficiencies when these are confirmed as existing . 42

and hygiene, and guidance regarding anticles of agreement, repatriation, shipown-

Three points must be emphasized . First, with the bifurcation of social

Labour Office (1990) (abbreviated to Guide-lines hereafter) .

or dignity of the port/coastal state, are better left to the flag state to

ers' liability in cases of sickness, injury or and labor standards on board ship into those that are enforceable b y death of seafarers, and trade union rights' ; port states and those that are not, the Paris MOU imputes a concrete ibid, 27. meaning to the `internal economy' rule relating to the assertion of port 32As reported in the 1989 MOU Annual state jurisdiction over ships in port under customary law . The principle, Report. See the introduction to Inspection of Labour Conditions on Board Ship : it may be recalled, states that matters that relate to the internal Guide-lines for Procedure international economy of a ship, ie those that do not affect the local peace, tranquility 33MOU Annual Report (1990) 14, 15 . For resolve . 41 With respect to social and working conditions on board ship, text, see Guide-lines, op cit Ref 32 . the Paris MOU takes the position that the standards in ILO 147 are 34MOU Annual Report (1990) 15, 351he amendments took effect on 8 De- divisible into those the violation of which must he redressed by the port cember 1991 . See MOU Annual Report states, and those the infraction of which are better referred to the flag (1991) 20 . The new section title is 'Mer- state for resolution or appropriate action ."

chant shipping (Minimum Standards) ConThis leads to the second point . The Paris MOU's definition of a vention, 1976 (No . 147)', Annex 1 . See Paris MOU, substandard ship does not include a vessel which may have substandard 36The International Labour Office takes the conditions with respect to those ILO 147 appendix conventions that are view that 'the guide-lines should not be seen as an interpretation of the provisions not subsumed under the main control regime of the Paris MOU .

of the ILO instruments to which they refer' . Inasmuch as delay or detention, or threat thereof, as a consequence of See Guide-lines, op cat, Ref 32, 6 . 37Sectionh 4 .1, Annex 1 in the amended

identified deficiencies relating to these ILO appendix conventions is not MOU . This list is practically the same as foreseeable, there is no ipso facto imputation of substandardness . The the original list in the Paris MOU, question thus arises of whether there are standards in the relevant 38 lbid. This provision is more restrictive instruments whose breach does not render a ship substandard . 45 Convide than the Guide-lines, op tit, Ref 32, 16, versely, does a substandard condition necessarily make a ship which provide that

substandard?'

The inspector should not unreasonably detain or delay a ship owing to its failure to meet the required standards. Consideration should be tgiven

detaining a ship a to corrective e is only ty when the failure satisfy the required

The third and last point is that it may be asked what percentage of all

ILO 147 standards violations at any given time is accounted

for by those appendix conventions that are not actively enforced by Y the Paris MOU aPlf

standards poses clear hazards to the safety of regime . No numbers are available for this type of `allowable substanthe vessel or to the safety or health

of

the crew .

dardness', but the literature strongly suggests that overwhelming num-

The guidelines are, apparently, more consistentwiththetanguageoflLO 147, which bets of seafarers' problems, especially those associated with the hulk uses the phrase 'clearly hazardous to trades, are concerned with wages, repatriation, and wrongful safety or health' to qualify the condition dismissal . 47 These are the seafarers' issues that, having been marginalrequiring port state intervention measures, iced, in effect, in the control regime of the Paris MOU, are still by and See Article 4 .1 of ILO 147 . 39See Section 4 .3, Annex t of amended large within the exclusive domain of flag state control . If this is the case, MOU . the statistical information on the enforcement of ILO 147 through PSC Section 4 .4, Annex 1 of amended reveals that the Paris MOO has adequately canvassed extensively ILO MOU 41 The predecessor of the Paris MOU, the 147 violations in respect of the workplace, ie with respect to safety and Memorandum of Understanding Between hygiene, but not quite with respect to the worker . 48

Certain Maritime Authorities on the MainteFigure 12 shows the number of ILO 147 deficiencies as a percentage nance of Standards on Merchant Ships, signed on 2 March 1978 (the Hague of the total number of annual deficiencies . This is accompanied by a Memorandum), had as its object the en- methodological note on . how the percentages were derived . The speciforcement of ILO 147 standards . See Guide-lines, op tit, Ref 32 . Even continued on page 390

388

fication of the deficiency Y type P e in absolute numbers, using b ILO 147 standards categories, is shown in Figure 13 . Finally, Figure 14 and Table

Marine Policy 1994 Volume 18 .Number 5



Implementation of international conventions through port state control: P B Payoyo Figure 12. ILO 147 deficiencies as percentage of total number of yearly deficiencies .

12

8 .57

Note: The following reported categories of deficiencies have been considered in computing the above percentages : crew, accommodation, food and catering, working spaces, and accident prevention . These figures thus reflect the enforcement of the STCW Convention aspect of ILO 147 . It is, of course, not possible to isolate the laborlsafety standards under ILO 147 from the safety standards under relevant IMO conventions 09 Overall average : 8 .12 . Source : MOU Annual Reports (1983/8492) .

7 .9

8 .04

8 .22 7 .57

7 .35

7 .51

6 .57

1982

1 11111111 1983

1984

1985 1986

M Working spaces

Figure 13. Numbers of ILO 147 deficiencies of various types. Source: MOU Annual Reports (1983/8492) .

1987

1988 1989

1990

1991 1992

.0 :I Accident prevention

1982 1983 1984 1985 1986

1987 1988 1989 1990 1991

1992

25

20

15 Figure 14 . ILO deficiency rates (see Table 4) . Note : Each of these deficiency rates expresses the number of identified ILO 147 deficiencies in relation to the total numbers of ships and inspections . ∎ : ships ; + : inspections . Source : MOU Annual Reports (1983/8492) .

Marine Policy 1994 Volume 18 Number 5

10

5

0 1 1 I I t 1 1 1 1 1983 1984 1985 1987 1988 1989 1990 1991 1992 1986

389

Implementation of international conventions through port state control : P B Payoyo Table 4. ILO 147 1982-92 deficiency rates (see Figure 14) . Year 1982-83 1984 1985 1986 1987 1988 1989 1990 1991 1992 continued from page 388 detention on the basis of the Recommendation (!) on Vocational Training is allowed in the guidelines . Ibid, 24, 25 . 43 See, for example, Jessup, P The Law of Territorial Waters and Maritime Jurisdiction (1927) 145 et seq ; Churchill, R and Low, A V, op cit Ref 18, 54-57 . 44 Perhaps this is the right context in which to appreciate the statement made in the most recent MOU Annual Report (1992) 7, 8: PSC is an instrument exclusively intended to foster maritime safety in the widest sense which, of course, includes prevention of marine pollution and securing acceptable living and working conditions on board ships . Any development that could be misconstrued by the outside world as an attempt to apply port State control as an instrument to promote maritime economy should be avoided . Irrespective of how legitimate endeavors to enhance maritime economy may be, the Pans Memorandum should not be seen as an appropriate tool to accomplish such endeavors and it should therefore not be placed in that context. Mention should also be made of the ongoing UN Conference on Straddling and Highly Migratory Fish Stocks, which is exploring the prospects of PSC in the matter of enforcement and compliance of conservation and management measures . See Hayashi, M 'United Nations Confercontinued on page 391

Inspections deficiency rates 8 .86 13 .40 10 .97 9 .83 9 .51 10 .64 12 .01 13 .29 13 .65 13 .79

Ships deficiency rates 12 .38 17 .83 14.47 13 .23 10 .54 14.34 16.33 18 .90 19.43 19.49

4,

by showing increasing ILO deficiency rates relative to the total number of ships and the total number of inspections, confirm the trends identified above : the more individual ships that are inspected, or the more inspections that are undertaken, the more ILO 147 related deficiencies are seen .

Cost of PSC under Paris MOU How

much does the Paris MOU regime cost?' 0 The Paris MOU Secretariat reports that, in the ten years of operation of the Paris MOU, approximately US $25M was spent to conduct about 125 000 inspections on 95 000 individual ships . 51 The amount represents the cost to the Paris MOU parties 'in footing the bill for negligence on the part of flag states' . 52 Whether or not the benefits derived from the Paris MOU experiment have been worth the investment of US $25M cannot be finally determined . What can be shown, however, is that the regional character of PSC makes its cost much less than it appears to be . Tables 5 and 6 show the performances of Paris MOU states in terms of their own ships being subject to PSC . The figures reveal that, during 1990-93, the 15 full members of the Paris MOU accounted for around 35% of all the ships inspected, and approximately 35% of all the inspections carried out under the Paris MOU . About 30% of the total number of inspections which yielded deficiencies in 1991-93 were inspections conducted on the ships of Paris MOU partners, and about 19% of detentions involved ships flying the flag of a Paris MOU state . Table 5 . Inspections performance of MOU full member states (as flag states) under Paris MOU Paris MOU countries

' Adherence to the Paris MOU took effect on January 1992. For overall totals, see Figures 1 and 2 .

390

1

Belgium Denmark Finland France Germany Greece Ireland Italy Netherlands Norway Poland' Portugal Spain Sweden UK Totals 1 Totals 2° Totals 1/Totals 2 (%)

Number of individual ships inspected 1990 1991 39 22 317 343 76 77 74 83 574 698 400 408 63 58 173 158 353 344 649 673 215 246 20 32 129 105 196 211 222 205 3 480 3 683 9 842 10 101 35 .36 36 .46

1992 10 363 81 82 650 390 60 155 377 657 218 27 86 225 189 3 570 10 455 34 .15

Number of Inspections 1990 53 440 94 92 900 538 115 212 514 900 314 36 181 283 289 4 961 13995 35 .45

1991 26 488 107 110 1 080 535 136 216 551 949 350 48 150 303 272 5 321 14 379 37 .01

1992 12 496 119 109 937 491 121 195 558 885 317 43 114 318 246 4 961 14 783 33 .56

Marine Policy 1994 Volume 18 Number .5

Implementation of international conventions through port state control : P B Payoyo Table 6- Detentions performance of MOU full member states (as flag states) under Paris MOU Paris MOU countries

a For overall totals, see Figure 6 for detentions, and MOU Annual Report (1991) 61 and MOU Annual Report (1992) 67 for inspections with

deficiencies . Source: 1991 and 1992 MOU Annual Report (1991) and MOU Annual Report (1992) .

continued from page 390 ence on Straddling and Highly Migratory Fish Stocks : an analysis of the 1992 sessions' Presented at Pacem In Maribus XXI Takaoka City, Japan (7 Sep 1993) (copy on file with author) . 45The ILO position is unambiguous : 'a ship with substandard labour standards is a substandard ship' . See 'The International Labour Organization and inspection of foreign registered ships (port state control)' Maritime Industries Branch, International Labour Office (20 Oct 1992) (mimeographed paper) (copy on file with author) . ae This question is, by implication, being discussed in the PSC Committee which has recently commenced deliberations on the problem of defining a substandard ship, 'bearing in mind that a detention did not automatically imply that the ship was to be seen as "sub-standard" since the detention could also relate to a "substandard" condition' . See MOU Annual Report (1992) 22. 47Wong, S L H 'The legal rights of sea-

farers from engagement to discharge' Proc Legal Rights of Seafarers Conference Nautical Institute and University of Wales, UK (1985) 33 68; Napier, C and Matthews, A'Litigation relating to seafarers' contracts of employment' ibid, 74, 76, 78 ; Smith, C 'Human rights violations at sea - the tip of the iceberg : Part II' The Oceans - An International Workplace: Proc Oceans 87 Conference Halifax (28 Sep-1 Oct 1987) 820, 821 ; see Chapman, P Trouble on Board - The Plight of International Seafarers (1992) 145, 146 on his proposals for reform 'to greatly improve the life of seafarers', which touch on matters such as the right of self organization, wages and social security. See also Report of the House of Representatives Standing Committee on Transport, Communications, and Infrastructure: Inquiry Into Ship Safety Parliament of the Commonwealth of Australia, continued on page 392

Marine Policy 1994 Volume 18 Number 5

Number of Inspections with deficiencies

Number of detentions

Belgium Denmark Finland France Germany Greece Ireland Italy Netherlands Norway Poland Portugal Spain Sweden

1990 1 5 2 2 11 12 1 12 4 23 1

1991 3 3 2 15 19

1992 1 5 2 1 6 18

7 4 6

7 12 20 3 3 3 5 6

1991 8 144 35 48 342 275 68 102 194 443 149 21 78 113 74

1992 9 166 29 54 260 238 59 77 226 359 109 24 48 98 70

5 8 25 2

3 4 4 85 441

109 525

92 588

2086 6 554

1 826 6 688

19 .27

20 .76

15 .65

31 .83

27 .30

UK

Totals 1 Totals 2a Totals 1/7otals 2 (%)

Therefore, about

65%

of ships and inspections and 80% of detentions

relate to the rest of the world, If the entire Paris MOU region were considered to be one port state, the `port state of Europe', it would be fair to say that about 65% of the total cost of the MOU for ten years would have been devoted to PSC inspections . The remaining

35%

would have been the cost to each

partner of inspecting its own ships, ie regional flag state control . In reality, therefore, the true cost the delinquency of flag states' 53

$16 250 000 .

of PSC is 65%

MOU that is `paying for $25M, which is about US number of Paris MOU states,

for the of US

Dividing this amount by the

the cost to each Paris MOU port state is, on average, a little less than $1M per port state per year. This means that, given that basically six relevant instruments are enforced under PSC, the average cost of implementing a relevant instrument per year per port state is about

US

$170 000! This amount is the true cost of PSC, in the sense that it represents the cost of inspecting ships from outside the region . The difference between this sum and the other cost of intra-regional PSC inspections is that the former cannot be rationalized, ie there is no mechanism for the Paris MOU states to shift this cost back to the flag states . In intra-regional PSC, the cost of inspections can, at least in theory, be rationalized such that the region states with the most ships or detentions can be made to invest more in flag state control to improve their records in regional

PSC .

This can be done directly through the machinery

of

the PSC

Committee or, indirectly, through the ratification of relevant instruments by a region state . A regional scheme of PSC allows for indispensable cost-sharing arrangements with respect to intra-regional inspections . To the extent that the cost of PSC for ships from outside the region cannot be rationalized, the Paris

MOU

becomes a truly expensive venture . This

becomes even more true given the increasing numbers of ships, inspections, and detentions undertaken in the region . The port state of Europe will continue to shoulder the cost of inspecting ships which should have been the burden of the flag states concerned . However, the MOU regime has no way, institutionally, of forcing or persuading these flag states from outside the region to take back the cost shifted to the Paris

391

Implementation of international conventions through port state control : P B Payoyo continued from page 391 Australia (Dec 1992) 36, 37 (copy on file with author) . "The interwoven character of ILO standards and general human rights standards is explained in' Jenks, W 'The ILO approach to human rights' in Jenks, W Social Policy in a Changing World (1976) 11 . a9When ILO 147 was negotiated, it was recognized that social and labor standards laid down in ILO 147 could not be dissociated from basic safety standards contained in IMO conventions . See International Labor Office, Maritime Industries Branch, op cit, Ref 45 . See also Osieke, E, op cil, Ref 26, 479, 509 . 50The cost implications of port state control are said to be problematic. See Gold, E Handbook on Marine Pollution (1985) 41 . 51 MOU Annual Report (1992) 4 . This report further adds that, assuming a 2-3 h time for inspection, around 315 000 man/h were invested in ten years of PSC . The figures cited suggest that the price tag for each ship inspection is US$200 . ~Ibid. The Paris MOU Secretariat further maintains that far heavier costs were incurred by non-conforming shipowners : Based on the average running cost of a ship, this implies that shipowners whose ships faced a detention in the past ten years were deprived of revenue accumulating to approximately 120 ECU IUS $150], excluding investment cost for replacing detective equipment . Considering that the vast majority of detained vessels fly a flag of convenience, the speculative cost to shipowners of registering their ships under less reputable flags amounts to some 12 million ECU each year. Parenthetically, one observes the antediluvian prejudice against flags of convenience, as opposed to substandard ships, that runs through this quoted statement. See 'Re-evaluating the status of flags of convenience under international law' VA J Trans L 1991 23 1017 . poMOU Annual Report (1992) 4 . "Operational control' does not have any express basis in the relevant instruments enumerated under the Paris MOU . It is, however, being justified with reference to 'Procedures for the control of operational requirements related to the safety of ships and pollution prevention' IMO Resolution A .681 (17) (6 Nov 1991) . For a discussion of the background and implications of operational control in the context of the Paris MOU, see Payoyo, P 'ILO 147, port state control, and the human element in shipping' Presented at Round-Table on Philippine Seafarers and New Developments in International Maritime Law University of Philippines, Philippines (25 May 1993) . "See 'The geographical scope of operation of the Memorandum of Understanding on Port State Control and its consequences for the access of potential new signatories' (adopted by the PSC Committee, Antwerp, Belgium (31 May 1990)) (document on file with author) .

392

MOU region . It is clear that the challenge to the MOU port states is that of how to rationalize PSC costs not only intra-regionally, but also, more importantly, globally as well . Keeping in mind the possibilities of reducing these costs, there is a basis for expanding the geographical scope of the Paris MOU regime on a global scale, or enlarging the cooperative phase of cost sharing among port states and PSC regions .

Conclusions In response, therefore, to the question of whether the control regime under the Paris MOU has succeeded in achieving its aim of eliminating substandard ships, one can say that the Paris MOU has been only a conditional success . Growing numbers of substandard ships and deficiencies have been revealed by PSC inspections, and substandardness has not been eliminated in any way . On the contrary, there has been an increase in substandardness! What the Paris MOU has unquestionably accomplished, however, is significant . First, the Paris MOU has succeeded in identifying the quantitative and qualitative extent of substandardness in the region . This has not only disclosed the seriousness of substandardness as a European Community problem, but also enabled the PSC Committee to take decisions and develop strategies, on the basis of its experiences, to address this worsening problem at the regional and global levels . Second, the Paris MOU has succeeded in enforcing international maritime standards . The cost, discussed above, to shipowners of rectifying deficiencies demonstrates how the resources of the industry have been mobilized to effect compliance with international safety and environmental standards . Similarly, the feedback given to the IMO about the implementation, monitoring and/or amendment of relevant instruments is an essential element in this process of enforcement . Third, the Paris MOO has proved that regional cooperation to combat suhstandardness, although not without cost, allows for the rational and efficient use of resources . The Paris MOU organization has certainly been effective in mobilizing and allocating regional efforts with certain priorities, such as the targeting of particular ship categories or flag states for special attention, or the selective enforcement of ILO standards, or the institution of control of operational requirements- 54 Last, the experience of the control regime of the Paris MOU has allowed the MOU states to cooperate more successfully . Cooperation in this sense has proceeded in two directions, increasing the functional scope of cooperation among the MOU countries, and extending the geographic coverage of the regime to include more port states . More intensive cooperation has been seen, for instance, in the decision to target particular flags, and the implementation of control of operational requirements, notwithstanding objections to or reservations expressed about these moves . The geographic extension of the Paris MOD's cooperative regime, which has rendered it much more inclusive, has been demonstrated by the accommodation of 'co-operating states' in the PSC framework of the Paris MOU, and its support of similar PSC regions around the world .' 5 Indeed, one can expect these aspects of port state cooperation to have truly dramatic results in the years to come .

Marine Policy 1994 Volume 18 Number 5