Management – Maritime Administration
Benefits and Challenges Associated with Port State Control 5
Port State Control MOU 8
Discussion and Comparison of various existing port State control MOUs 11
MOUs and whether they help strengthen Port State Control or just another layer of bureaucracy 12
The International Maritime Organization is one of the many branches formed after the birth of the United Nations. It was originally known as the Inter-Governmental Maritime Consultative Organization when it was first established in Geneva in 1948; the International Maritime Organization (IMO) retained that name until 1982 when several amendments to the organization’s coverage and responsibilities were made. Even though it was first established in 1948, no meetings were held and agreements related to the mandates given to the organization by the United Nations were planned and implemented until 10 years later in 1959. So, even though it has been officially established as a Group in Geneva in 1948, many international sources consider the year 1959 to be the organization’s year of inception. The organization is currently headquartered in London, United Kingdom. It is one of the most active among the many agencies brought about by the formation of the UN. It has over 170 member states, with three associate states .
The International Maritime Organization was formed for the purpose of creating a systematic and regulated maritime framework that will be helpful in managing international shipping lines, focusing on issues such as the safety of the ships, the possible impacts of the ship on its and other ships’ crews, environmental issues, legal issues, maritime security, and even minute concerns such as technical co-operation . In the past years, the agency has increased its focus on environmental issues and on ways how the efficiency of transportation of passengers and commodities through shipping could be improved. A constant issue that never left the IMO’s attention was maritime security. From its inception in 1959 until today, maritime security has been one of the most, if not the most, problematic aspects of maritime organization that IMO focused on .
The objective of this paper is to discuss the IMO in general, what its operations and responsibilities as an official United Nations agency are, and discuss one of its major programs, the Port State Control Program, its benefits and challenges, how PSC MOUs work, a discussion and comparison of various existing port state control MOUs, among others.
The Port State Control Regime in IMO
According to the IMO itself, “because of the international nature of the shipping industry, it has long been recognized that action to improve safety in maritime operations is more effective if carried out at the international level rather than by individual countries acting unilaterally and without coordination” . This is indeed what is happening in the maritime and shipping industry. Since a significant portion of shipping lanes are not just owned or claimed by a single country, in fact, there are international waters that are shared by different countries, it would be harder to address issues pertaining to the shipping industry on a unilateral basis. It has already been proven by time and experiences that doing so (addressing shipping industry issues unilaterally) is an ineffective means of creating a regulated framework in the management of the maritime and shipping industry. Some even claim that a unilateral system is an unsystematic method of addressing such issues, which is counterproductive sine one of the main objectives of international agencies such as the IMO is to create a systematic approach in managing different issues related to the maritime and shipping industry. The establishment of an international organization such as the IMO, apparently, was the answer that the international community came up with. The overall objectives of the IMO can be summed up in their slogan: “Safe, Secure, and Efficient Shipping on Clean Oceans.” Safety, security, efficiency, and environmental preservation are therefore their main concerns, although as proved by its decades of existence, there are other more specific issues related to maritime organization that the IMO has addressed.
The IMO Port State Control program is just one of the tools that the organization uses to legally and formally control the use of international oceans and seas. Another popular example of such tools is the UNCLOS (United Nations Convention on the Law of the Sea). Basically, the main objective of the UNCLOS is to guide nations on how to act and react when it comes issues related to the private, commercial, and military use of national and international seas and oceans.
Benefits and Challenges Associated with Port State Control
A comprehensive background about the mandates and responsibilities of the International Maritime Organization has already been discussed. It is now time to discuss how exactly the IMO fulfills those things. “IMO has promoted the adoption of some 50 conventions and protocols and adopted more than 1,000 codes and recommendations concerning maritime safety and security, the prevention of pollution and related matters” . The IMO Port State Control is one of the many protocols that IMO created to achieve its goal of making shipping lanes safe, secure, and efficient, and keeping the ocean clean despite the volume of operations being performed on it.
There are many benefits of the Port State Control Program. Its implementation is in fact, directly in line with the primary goals and objectives of the IMO. With regards to safety, the Port State Control program is indeed one of the most effective programs that promote safety in maritime and shipping operations. States that are signatories to the Port State Control are, under agreement, required to subject every ship that are about to arrive and leave their respective ports to an inspection headed by the designated Port State Control Officer (PSCO) in their area. The responsibilities of a PSCO include but are not limited to: ensuring that the vessel have the necessary traveling documents according to the state requirements; ensuring that the vessel, together with its crew, are safe and fit to travel; ensuring that the vessel is and would be not a threat to the efficiency and safety of the operations in the port and the next ports where the subject vessel is scheduled to dock; and lastly, in ensuring that the vessel is compliant to internationally agreed policies on environmental protection. In a nutshell, under the details of the Port State Control program, foreign ships that are travelling to another country’s ports will have to undergo and of course, pass a series of inspections conducted by PSC officers first to ensure that the condition of the ship master, the crew, and the ship together with all of its equipment are compliant with the requirements of various international conventions and international laws. Some of the international conventions are the SOLAS (International Convention for the Safety of Life at Sea), MARPOL (International Convention for the Prevention of Pollution from Ships), and STCW (International Convention on Standards of Training, Certification and Watch-keeping for Seafarers) among others.
Any vessel that has failed to prove the worthiness of their sea travel by having failed at least one aspect of the PSC inspection would be temporarily disallowed to travel to their next destination. The protocols being implemented with regards to this action is not that rigid though. The PSC officers have the prerogative what type of restrictions would be imposed on a non-compliant vessel and the duration by which such restrictions would be applied. In worst cases wherein a vessel undoubtedly violated numerous international conventions and laws, the designated PSC officer reserves the right to detain the vessel until all conditions set have been made and issues resolved. To give the PSC program some form of flexibility is only right since not all ships and shipmasters and crews share the same circumstances and or deficiencies. There are however courses of action that the IMO has provided that PSC officers may follow in making decisions related to temporary ship holding and detention. The following is a list of such actions in order of ascending gravity .
- Ship deficiencies can be corrected within 14 days for minor violations of international laws and conventions.
- Ship deficiencies can be corrected when the ship arrives at its next point of destination, under specific conditions—which will be decided by the PSC officer.
- Ship deficiencies must be corrected before the ship can be allowed to leave the port and travel to its next destination
- The Port State Control authorities will detain the ship until further notice
Based on this information, it can be asserted that the implementation of the PSC protocol can indeed be an effective tool in ensuring the safety, security, efficiency, and environment-friendliness of every ship that travels to and fro the ports of countries that are signatories to IMO’s PSC program. It gives the port authorities the ability to filter every ship that passes through their port and ensure that every ship that passes is compliant with the international laws and conventions. This protocol indeed goes in line with the goals and mandates of the International Maritime Organization.
One of the hardest challenges of this program however, is the fact that the inspection of the ships can be time consuming . Conducting a meticulous inspection such as the type the IMO suggests PSCO should do may be a good idea if the number of ships passing to and from the ports only hover around several hundreds. The goodness of this idea may change if we are already talking about thousands of ships docking at and leaving the ports—a scenario which perfectly describes the situation in today’s busiest ports. In that case, the PSCO authorities have two options to choose to successfully adapt to this challenge. They can either increase the number of PSC officers performing the inspections—an action which may convert to additional financial burden to an international organization with a relatively low amount of funding; or they can just stick with their numbers, and just deal with how lax their inspection procedures can become as the number of ships they have to inspect rises.
Port State Control MOU
Port State Control was originally intended to be implemented on a state-basis. However, after years of implementation on a per-state basis, it has been proven that the implementation of the program can be more effective when implemented on a regional basis . However, changing the coverage of operation of the PSC program from a national to an international basis would also mean that they have to deal with more parties simultaneously and that they also have to make and set agreements that all countries in a particular region would agree to. This is where the purpose of the Port State Control Memorandum of Understanding enters.
The purpose of the PSC MOU is to serve as a guide or reference to all parties that are signatories to the MOU—meaning, they have agreed to abide by the agreements and perform all actions and provide resources that are expected of them based on details of the agreement they signed . MOUs or (aka Memorandum of Understanding or Memorandum of Agreement) are non-legally-binding form of agreements that are more formal than a verbal agreement but less formal than a legal contract. Port State MOUs are often very detailed because its objective is to outline the expectations of IMO from the state whose ports would be controlled and the expectations of the port state from the IMO. A Port State Control MOU does not carry the legal ramifications of a legal contract in case a party decides to or accidentally breaches the agreement; it cannot also be enforced by a judge.
Additionally, in a rapidly globalizing world, a lot of things can change so easily. Changing things in a legal contract that has already been approved by the court can easily take months, depending on the degree of change and amendments being proposed. Changing things in a MOU does not usually take a lot of time as long as all involved parties can easily arrive at a final agreement. After the amendments to the agreement have been settled, the parties can finally put the revised agreement into writing for everyone to review and once everything is clean, that is it, the amendments are finished. This should be one of the reasons why in creating treatises, MOUs are the preferred tool over legal contracts. In international transactions that involve operations that generate revenue however, legal contracts would still remain the safest and the overall preferred choice as it offers the highest form of legal protection should a signatory party accidentally or intentionally breach some or all the details in the contract.
Paris Port State Control MOU
The Paris PSC MOU is one of the major PSC MOUs that the IMO oversees. There are currently 27 countries that are a signatory to this PSC MOU. These countries are: Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Slovenia, Spain, Sweden, and the United Kingdom. The main focus of the Paris PSC MOU, aside from the standard focus on maritime security, is to eliminate, and not just minimize the operation of ships that would not pass the inspection standards of the PSCO officers, through a harmonized system of Port State Control. This particular PSC MOU covers the waters of the North Atlantic basin and the European coastal states from North America to Europe. It is estimated that there are over 18,000 ship inspections that take place in the 27 participating maritime administrations’ ports. This PSC MOU is guided by the principle that it is the responsibility of the ship owner or operator to ensure that the ships are in compliance with the requirements laid down by the IMO laws and conventions; and that it is the responsibility of the flag State whether to fully or partially enforce the inspected ships’ compliance.
Abuja MOU on West and Central Africa
As the name of the PSC MOU implies, this MOU covers the waters of West and Central Africa. Currently, there are 22 countries that are signatories to the MOU, which are collectively referred to as “the Authorities.” The Abuja MOU covers the Maritime Authorities of: Angola, Benin, Cameroon, Cape Verde, Congo, Cote d’Ivoire, Democratic Republic of Congo, Equatorial Guinea, Gabon, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mauritania, Namibia, Nigeria, Sao Tome and Principe, Sierra Leone, Senegal, South Africa, and Togo. The Abuja MOU focuses on: recognition of the need for maritime safety at sea and in ports; and protection of the marine environment and the importance of improving living and working conditions on board ship; recognizing the importance of the requirements set out in the relevant maritime conventions for ensuring maritime safety and protection of the marine environment; noting the established training methods and programs for PSCO and the urgent need to implement a training program for PSCOs in the region; noting with appreciation the progress achieved in these fields by the IMO and ILO; and noting all resolutions specified in the MOU; and recognizing that effective actions by the flag states are required to finally prevent and eliminate the operation of substandard ships in the region .
Discussion and Comparison of various existing port State control MOUs
Currently, the IMO has managed to establish PSC organizations and agreements covering all of the world’s oceans. The European and North Atlantic Oceans are covered by the Paris MOU; the Asia and the Pacific oceans by the Tokyo MOU; Latin American oceans by the Acuerdo de Vina del Mar; the Caribbean oceans by the Caribbean MOU; the West and Central African oceans by the Abuja MOU; the area of the Black Sea by the Black Sea MOU; the Mediterranean ocean by the Mediterranean MOU; the Indian Ocean by the Indian Ocean MOU; and lastly, the area of Saudi Arabia by the Riyadh MOU.
The only common thing about all of these MOUs is the fact that they are all regulated by the International Maritime Organization. These MOUs have the same purpose and that is to serve as a reference or guide for signatory countries and IMO authorities to use in case any issue or confusion about the enforcement of PSC protocols arises. Naturally, these MOUs differ in terms of the area they cover. Some have larger areas of coverage than the others while some have a smaller one. The Latin American Agreement on Port State Control of Vessels, for example, covers 13 countries while the Black Sea MOU covers 5 countries. Some aspects of one MOU may also not be present in other MOUs because not all ports share the same circumstances and conditions and the same is true for all the ships that pass through these ports.
MOUs and whether they help strengthen Port State Control or just another layer of bureaucracy
Memorandums of Understanding or simply MOUs are basically a formal form of agreement, naturally more formal than a gentleman’s agreement or what is more commonly known as a verbal agreement . MOUs are different from contracts as the former is a less formal, technical, and legal form of agreement than the latter. Additionally, MOUs, unlike contracts, are not legally binding. Meaning, in general, the statements and agreements detailed in a MOUs in which two or more parties may be involved cannot be used to prosecute an individual or an organization on court .
However, there may be cases wherein the points of agreement in an MOU were intentionally made like the points of agreement in a contract. If this is indeed the case, the non-legally-binding feature of MOUs may be dismissed by the court provided that the court considers the specific points in the MOUs were indeed made in a legally-binding way .
There can be a lot of uses of MOUs. From mutual agreements between two or more parties to an international treaty between one and hundreds of multinational organizations or even states, anyone can make use of an MOU in formally setting up an agreement.
When making agreements with another party or with other parties, an individual or a group usually has three choices: a gentleman’s or a verbal agreement, a Memorandum of Understanding (in some cases, the term Memorandum of Agreement is used), or a legal contract.
Obviously, a verbal agreement is the easiest one to make. However, unlike the two more advanced agreement options, no one among all the parties involved in the agreement can really be so sure that the other entities involved would honor their words because verbal agreements are not usually legally-binding. Meaning, anyone who would happen to violate or breach some or worse, all terms of the agreement, has got nothing to lose in case the issue gets into court.
Legal contracts, just like a verbal agreement and an MOU, can involve two or more parties. It is the most formal of all agreement and it is also the only form of agreement that one can consider as absolutely legally-binding which means that any party who is a signatory to the legal contract who happened to violate one or more aspect of contract may be punishable by law, provided that the claimant can prove that it was indeed the defendant’s fault why the breach occurred. However, this absolutely legally-binding feature does not come without a fee. Among the three forms of agreement, legal contracts are the most complex. It is the hardest to prepare. Parties who want to be signatories of a legal contract are often required to have their own lawyers participate in writing the conditions of the contract, in reading the final contract manuscript, and most importantly, in ensuring that all details of the contract are accurate before everyone and the court acknowledges the presence and the validity of that contract. Drafting and getting approval for a contract may easily take months, depending on the type of agreement being processed. Aside from the time, one can almost be sure that legal contracts are the most costly of all forms of agreement. All, and not just one part, have to pay for the services of their lawyer for the entire time the contract is being drafted, and depending on the state which they are filing the contract in, some legal processing fees may apply. According to literatures, with all the certifications, licenses, and redundant and often unneeded procedures, many individuals are getting discouraged of being a part of contracts. Now, those individuals would only be left with two choices: a verbal agreement, which in most cases, especially if it involves reputation and money are not enough to seal an agreement between parties, and an MOU. The red tape present in most countries bureaucratic system such as in the U.S. for example, is often so long that people tend to sacrifice the formality of their agreements, which, if legal experts would be asked, should not be the case, because legal contracts were practically made to protect all (and not just one) signatories to an agreement. If it is the amount of red tape present in the bureaucratic system that prevents people, organizations, and governments from deciding to protect their rights in an agreement, then by all means, it can be said that there is something wrong with the legal system.
Some examples of red tapes include but are not limited to redundant certifications, licenses, and approvals that government bureaucratic agencies require an individual or a corporation filing for approval of documentation to possess. In most cases, these examples are not really necessary. If at all necessary to the documentation or approval process, most red tape examples exhibit redundancy.
In summary, MOUs, particularly Port State Control MOUs are not just another layer of bureaucracy that increases the amount of red tape in a flag state or region. It has its purpose and as far as other methods of creating an agreement is concerned; it does not involve or encourage any form of duplication. It does not promote redundancy unlike any other government protocol that does—a classic representation of red taping. Its purpose is to serve as an agreement guide or reference between two or more parties, nothing more and nothing less. It does not have or require the nitty-gritty things involved in a legal contract and in most cases, its articles are also not legally-binding and are therefore not enforceable by a court or judge. It is easier to process and does not involve that large of a payment compared to a legal contract. Overall, it is an effective tool for managing treaties and deals like a country’s involvement with IMO’s PSC program and it certainly is not just another layer of bureaucracy or another roll of red tape.
Characteristic of a Good MOU
MOUs are written to fulfill one general purpose and for that one general purpose only and that are to serve as a formal (more formal than a general agreement) but a non-legally-binding form of agreement between two bilateral or multilateral parties. These parties can be individual persons who are planning to work together for something; organizations that aim to collaborate on a project; or countries that aim to setup a non-legally-binding code or mode of conduct on a specific region, on a specific area of interest. What makes a good MOU is its ability to make all parties that are signatories to it comply with the details outlined in it, preferably to the dot, despite the fact that in general—which means not in all cases, going against or breaching any given article or group of articles in an MOU would not lead to any legal repercussions.
In conclusion, the International Maritime Organization has done a good job in creating and maintaining the effectiveness of a tool that directly addresses its goal of providing a safe, secure, efficient, and environment-friendly international maritime and shipping system. Thanks to their Port State Control program, every signatory country can be assured that all ships and vessels that come to and from their respective ports are qualified and compliant with all the international protocols, conventions, and laws, designed to make the lives of seafarers and businesses and individuals who rely on the maritime and shipping industry easier and safer. The creation of the MOUs in every region covered by their PSC program was also a good idea as it is a good way of clearly outlining the expectations of the IMO from signatory countries and then vice versa in a non-legally binding way. Also, should any one party wish to request for an amendment, the process would not be that expensive nor take that long a time to complete compared to legal contracts. The Port State Control regime is just one of the many tools that the International Maritime Organization has developed and uses to ensure an organized and systematic regulation of international seas and oceans. After years of existence, different state maritime authorities from different PSCO MOUs have reported the PSC regime’s effectiveness in bringing member countries closer to the ultimate goal of eliminating the operation of substandard ships in international waters.
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