1 ISPS and ISM Codes – did they prove the expectations of their drafters or are another time- and paperconsuming bureaucratical task with which crew members have to comply? (word count with the footnotes 7990)
1. INTRODUCTION:
The latest requirements introduced by the international community concerning the safety of seafaring although quite welcome are not n ot only very hard to comply with, but are also defective in certain aspects. Hard to comply with because of the increased amount of ship work – maintenance of the ship as well as paper work that has been substantially increased by the newly-introduced International Safety Management (ISM) and International Ship and Port Security (ISPS) Codes – to the expense of the decreased number of seafarers serving on a vessel. Defective, because these codes apply app ly only to certain types of vessels meaning that the drafters have n eglected the fact that human life has the same value everywhere.
The aim of this research will be directed d irected at the security of ships. However, in dealing with this issue, an attempt will be made to be demonstrated that security issues are indispensably linked to the safety of the vessel. Therefore, in order a full picture to be obtained, a comparative approach between the ISM Code, dealing with the safety at sea, and ISPS code, concerned with security measures aboard and ashore, will be done. I will start with short historical facts to show the origins of the awareness of the people relating to the security at sea issues. Afterwards I will discuss those chapters of the Safety Of Life At Sea Convention (SOLAS) which were and still are directly concerned with the safety and security on board before the introduction of ISM and ISPS Codes. The aims of the two codes will be further discussed. By way of examples1 it will be shown why the ISM and ISPS Codes are very often inapplicable. And finally, it is argued that safety and security concerns are to b e approached not just by giving directives to the crews and ship owners, but bu t that the international community is to be much more active in deciding them.
2. HISTORY OF SECURITY AT SEA:
The issue of piracy and armed robbery relates to the safety and security problems with which a ship is concerned while under un der way, at port or anchor. During the last years this has been the issue of greatest importance in the shipping business. Piracy has been into existence since the first man decided to transport goods by sea, that is about 2000 BC when the first Phoenicians started sailing in the 1
The author of this paper is a Navigating Officer and most of the examples given even though seeming impossible to occur, have actually happened to him or his colleagues.
2 Mediterranean Sea. 2 Later, during the Middle Ages, the most notorious pirates – the Vikings – were famous for their raids on shore-based settlements. At the same time piracy w as developing on the Eastern coast of Asia.3 The third period of the development of the piracy was during the Great Geographical Discoveries – considered to be its golden era. era.4
It is hard to say that the meaning attached to the term ‘piracy’ was the same throughout the centuries. In the beginning, around 60 BC, piracy became a big problem for the Romans’ trade and it had to be fought. All the pirates became outlaws.5 On the other hand, during the 15th – 18th centuries, the pirates were considered by the governments at one and the same time allies in their fights against their enemystates and enemies of their own as well. However, at a later stage, piracy was abolished for state purposes by the Declaration of Paris in 1856, signed by England, France, Spain, and other European countries.6
Probably the best description of piracy in its maritime context was made by Plutarch in about 100 AD – this is an attack on ships and maritime cities without legal authority.7 Maritime context because the piracy as we know it today, exists in various other forms - air or intellectual piracy such as copying and distributing unlicensed software.8 However, this research will focus on how the attacks at sea affect the safety of the sea vessels and the measures taken to counteract them.
Another interesting feature is that piracy cannot be committed within the territorial waters of a state.9 As such attacks on ships occurring within the territorial waters of a state, are considered armed robberies. robberies.10 Even though a broader definition of the meaning of piracy is still not adopted by the international community, it is assumed that the way the International Maritime Bureau uses this term ‘piracy’, best describes the present situation: ‘Piracy is an act of boarding any vessel with the intent to commit crime and with the intent or capability to use force in the furtherance of that act.’11
2
’Legends of Pirates and Piracy’, available on http://www.bbc.co.uk/dna/h2g2/A9734682 http://www.bbc.co.uk/dna/h2g2/A9734682(accessed (accessed on 02.02.2007). Ibid. 4 Ibid. 5 Ibid. 6 Douglas R, ‘THE DREAD PIRATE BIN LADEN-How thinking of terrorists as pirates can help win the war on terror’, available on http://www.legalaffairs. http://www.legalaffairs.org/issues/July-A org/issues/July-August-2005/feature ugust-2005/feature_burgess_julaug05.m _burgess_julaug05.msp sp [accessed on 03.03.2007]. 7 Jones J, ‘Background to Pirates Infest the Roman Seas by Plutarch’, available on http://courses.wcupa.edu/jones http://courses.wcupa.edu/jones/his101%5Cweb%5C /his101%5Cweb%5C09pirate.htm 09pirate.htm (accessed on 02.03.2007). 8 Ibid (n1). 9 UN Convention on the High Seas in force from 30.09.1963, incorporated in Article 101 of the 1982 United Nations Convention on the Law of the Sea. 10 Raymond Z, ‘Piracy in Southeast Asia: New Trends, Issues and Responses’ (2005) IX 2 Harvard Asia Quarterly available on http://www.asiaquarterly http://www.asiaquarterly.com/content/vie .com/content/view/30/ w/30/ [accessed on 03.03.2007]. 11 “Co-operation for Law & Order At Sea", CSCAP Memo 5, p. 14 cited in Raymond Z (n 10). 3
3 3. STEPS TAKEN TO AVOID SEA ACCIDENTS BEFORE THE INTRODUCTION OF ISM AND ISPS CODES.
In order to increase the safety and security of merchant ships and their crew-members, a number of conventions and regulations were introduced by the international community. The first and broadest in range, the International Convention on the Safety of Life at Sea (SOLAS), has a long h istory. Following the Titanic disaster, it was first first introduced in 1914. The second version was adopted in 1929, the third third – 1948, and the fourth – 1960. 12 The 1960 Convention was wa s the first task of the newly-created International Maritime Organisation (IMO) and presented an attempt to keep in step with the technical developments of the marine industry.13 The Convention was to be updated by amendments, but in fact this amendment procedure appeared to be very slow in implementing the corrections.14 As a result, a new Convention under the same name, SOLAS, was introduced. It not only included all the amendments of the 1960 version, but also allowed for a new amendment procedure, tacit acceptance, in terms of which, unless objections to the amendment are made by an agreed number of states before a certain period of time, the changes would be adopted into the Convention.15 The latter Convention is still in force and is kno wn as SOLAS’74. It consists of 12 chapters. Of greatest importance to the present research are Chapter IV – Radiocommunications, Chapter IX - Management for the Safe Operation of Ships and Chapter XI consisting of 2 parts: the one which is of relevance is Chapter XI-2 - Special measures to enhance maritime security. Chapter XI-2 incorporated the ISPS Code in 2004.
Chapter IV is applicable to cargo ships of 300 gross tonnage and above.16 On 1 February 1992 the socalled Global Maritime and Distress Safety System (GMDSS) was introduced and became fully effective on 1 February 1999.17 Its purpose is to provide a worldwide network of au tomatic emergency communication for ships in state of emergency with ships in vicinity as well as the search and rescue authorities ashore.18 Parts of the GMDSS became compulsory on 1 April 1993. 1993.19
The above factors relating to the SOLAS Chapter IV are stated because the radio equipment is the source by which vessels send information regarding distress situations aboard ships. The information relating to pirate activity is collected by the International Maritime Bureau’s Piracy Reporting Centre in 12
IMO: SOLAS , consolidated edition 2004,Publisher IMO, London, 2004 summary of the Convention available on http://www.oceansatlas.c http://www.oceansatlas.com/unatlas/issues/ om/unatlas/issues/safety_at_sea/ safety_at_sea/solas_convention/solas. solas_convention/solas.htm htm [accessed on 03.03.2007] 13 Ibid. 14 Ibid. 15 Ibid 16 Ch IV-Part A- Reg 1.1 of SOLAS’74. 17 Ch IV-Part A- Reg 1.5.5. 18 ‘Shipping Emergencies Emergencies – Search and Rescue’, available on http://www.oceansatlas.or http://www.oceansatlas.org/unatlas/issues/e g/unatlas/issues/emergencies/gmdss_ mergencies/gmdss_sar/searchrescue.h sar/searchrescue.htm#_Toc515946377 tm#_Toc515946377 [accessed on 03.03.2007]. 19 Ch IV-Part A-Reg 1.4.
4 Kuala Lumpur, Malaysia, established in 1992 whose database is updated regularly.20 The location is not accidental – the Malacca Straits (MAL), the Indian Ocean(IO) and the South China Sea (SCS) are the most dangerous areas for shipping. From the beginning of 2000 till the end of 2004 there have been reported 283 attacks in MAL, 394 in IO, 677 in SCS, compared to 1968 attacks for the same period worldwide.21 However, many people deem that the statistics on the attacks on vessels are below the actual data.22 It is so because ship owners/ charterers are unwilling to report pirate activity and advise their crew not do so. The reasons may be trivial, but they actually show the situation in which the shipping industry is. Some of the reasons are as follows: the authorities themselves are involved in piracy or are unwilling/ unable to fight piracy; the ship owners/ charterers are aware of the fact that should pirate attack be reported, their business is endangered – higher insurance premiums, detention of the attacked ship till investigation is conducted which inevitably leads to demurrage. 23 Another reason for non-reporting might be the fact that the requirements of Chapter IV are applicable o nly for vessels from 300 gross tonnage and above, that is yachts and other small vessels do not fall under its requirements. Not that skippers do not report these acts of violence by other means than radio communication, for instance while they are at port, but due to the same reasons – authorities’ participation in illegal activity – these claims remain unnoticed.
With regards to the above words, further elaboration should be made. It seems from what has been discussed up to this moment, is that the responsible authorities, IMO and UN as well as the states, have only outlawed piracy and have developed grounds for making the communication ship-to-ship and shipto-land easier. But this is not the case. In 1988 IMO adopted the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) which entered into force on 1 March 1992. Its main concern is the undertaking of means to fight unlawful acts threatening the safety of ships, crews and passengers. The Convention Conven tion obliges the 142 contracting governments gov ernments to extradite to a third country or prosecute the alleged offenders.24 However, it seems that SUA did not have h ave the desired effect to decrease the rate of attacks on ships – in 1992 there were 67 reported and attempted attacks, in 1996 – 230, in 2000 – 474.25
20
This information is available on the website of IMB http://www.icc-ccs.org/pr http://www.icc-ccs.org/prc/piracyreport c/piracyreport.php .php [accessed on 04.03.2007] Talley W and Rule E, ‘Piracy in shipping’, available on http://b http ://bpa.o pa.odu.e du.edu/p du/port/ ort/rese research arch//talley tall ey.piracy .pir acy .doc [accessed on 04.03.2007] 21
22
‘The UK Government's strategy for tackling Piracy and Armed robbery at sea from 04.04.2005’, available on
http://www.dft.gov.uk/pgr/security/maritime/piracy/theukgovernmentsstrate http://www.dft.gov.uk/pgr/security/maritime/piracy/theukgovernmentsstrategyfort4906 gyfort4906 [accessed on 05.03.2007]; see also ‘Piracy: Government Response to the Committee’s Committee’s Eighth Report of Session 2005-06, House of Commons – Transport Committee’, available on http://www.publications.parliament.uk/pa/c m200506/cmselect/cmtran/1690/1690.pdf [accessed on 05.03.2007] 23 McDaniel M , ‘Modern high seas piracy’ piracy ’ – – presentation before the PROPELLER CLUB (USA), Port of Chicago’, available on http://www.cargolaw.com/ http://www.cargolaw.com/presentations_pira presentations_pirates.html tes.html [accessed on 05.03.2007]. 24 http://www.imo.org/Convent http://www.imo.org/Conventions/mainfram ions/mainframe.asp?topic_id=259& e.asp?topic_id=259&doc_id=686 doc_id=686 [accessed on 05.03.2007]. 25 Ibid (n 21).
5 4. THE INTRODUCTION OF THE ISM CODE AND ITS ROLE IN INCREASING THE AWARENESS AMONG SEAFARERS.
Following the capsize of the ferry Herald ferry Herald of Free Enterprise outside the port of Zeeburge, Belgium on March 6, 1987, the investigation found that the reasons for the accident, causing the death of 193 people, were because of serious negligence on the part of the management. management.26 The company was described by the examiner as being ‘infected with the disease of sloppiness at all levels.’27 As a result the SecretaryGeneral of the IMO proposed that guidelines be developed by the Organisation in order to enhance the safety and improve pollution prevention procedures aboard vessels.28 The guidelines not only proposed for the improvement of the crew training, but it also advised that the companies should implement their management policy regarding these issues.
The guidelines also recognized the constant need for their development by b y way of revision in order to keep them updated in light of the gained experience by way of their implementation.29 However, due to the fact that these guidelines were not mandatory, many companies avoided applying them in their policy which meant that they did not serve their purpose.30 As a result, the SOLAS Convention was amended by adding to it a completely new Chapter IX - Management for the Safe Operation of Ships.31 It became fully operative on July 1, 2002. In terms of this Chapter, the ISM Code became mandatory and obliged every shipping company to implement and maintain a Safety Management System (SMS) which includes procedures for reporting accidents, drills and response to emergency situations.32 In addition, the Code requires that the companies appoint a Designated Person Ashore whose responsibilities are to ensure the safe operation of the ship and to provide a link between the company and the crew. crew.33 The SMS should also regulate the training of the crew 34 and preparation of plans for shipboard operations concerning the safety of the ship.35 Among these operations are those concerning ship security, terrorism and piracy.36 As with the previously discussed Chapter IV – Radiocommunications, Chapter IX is also restricted to certain kind of vessels – it is non-mandatory for towing for towing vessels, barges, vessels solely engaged in domestic trade, domestic passenger vessels carrying fewer than 12 passengers, or fishing vessels.37 26
Rodriguez J & Hubbard M ‘The ISM Code ‘available on http://frc-law.com/files/pub_ISM.pdf [accessed [accessed on 07.03.2007]. 27 ‘ISM Code, 2002’, available on www.imo.org [accessed on 07.03.2007]. 28 Ibid. 29 Rodriguez J (n 26). 30 Ibid. 31 IMO Assembly Resolution A.741(18) from Nov. 1993. 32 Reg 1.4, ISM Code. 33 Reg 4. 34 Reg 5; see also http://www.imo.org/includes/ http://www.imo.org/includes/blastDataOnly blastDataOnly.asp/data_id%3D .asp/data_id%3D6698/623rev3.pdf 6698/623rev3.pdf 35 Reg 7. 36 Reg 7. Interpretatation and application of Reg 7 is available on http://home.pacific.net.sg/~m http://home.pacific.net.sg/~makhdoom/ismcode.ht akhdoom/ismcode.html ml [accessed on 01.03.2007]; See also n 103 (supra). 37 Rodriguez J (n 26).
6
This restriction puts into question the same arguments as with Chap ter IV of the SOLAS Convention – is the life of a person sailing on a smaller vessel not as important as the life of a crew member of a large tanker? Or because her size is small and the expected damages which she may cause to the environment are not worth imposing the obligations of this Chapter. Or, just because the crew of the smaller vessel is less in number, they will not become targets to an attack as the profit from it would be unreasonably small compared to what the criminals could have earned from assaulting a 20 men-managed vessel, and therefore emergency precautions are not necessary to be exercised. A lot of questions, but all of them unanswered.
Although recognized by governments as a step forward to increasing the safety of life at sea and prevention of pollution, many of the people in the shipping business criticise the introduction of the ISM Code. The reason for these words is that the workload of a crew has has already been increased by the decrease of the number of the crew-members operating a ship,38 yet the reduced crew now has also to comply with the newly-introduced requirements of the ISM Code.
Not that the policy for mandatory drills deserves condemnation becau se each and every member of the crew learns what his duties during an emergency are, or that the check-lists check -lists do not assist the crew in a particular situation, but it is submitted that in most of the cases, due to time constraints, the drills are done only on paper and the check-lists filled-in without actual following of the instructions. Take for instance a car-carrier ship visiting 20 ports per month. It means every 36 hours a new port. In the meanwhile there are the mooring operations op erations in which everybody from the ship command takes part. Between the ports, everybody carries his normal watches, prepares ship’s documents for the next port and maintains the ship. In the gap of these 36 hours, in order to comply with the requirements of SOLAS, one must carry out the prescribed number o f emergency drills. However, the time for participation in drills is at the expense of either the time when the crew carries out its duties, that is maintains the ship, or from its rest time. If taken from the former, the maintenance of the ship is “ignored” and then the ship owners might say that the crew does not carry out its duties properly. In addition, when at port – the port authorities might arrest the vessel because a certain item of the equipment does not work properly.
On the other hand, if the time for training is extracted from the rest period – which inevitably happens because during the day there are always crew members who are off-duty and rest – the crew cannot rest adequately. So what appears to be happening – on the one hand, the “safety first” requirementversus requirement versus the 38
Nikolic N, ‘Waterpressure’, available on http://www.marine-societ http://www.marine-society.org.uk/File y.org.uk/Files/12-14_Sea%20St s/12-14_Sea%20Stress.pdf ress.pdf [accessed [accessed on 08.03.2007].
7 “rest first in order to work properly” requirement, on the other. And in order to avoid possibility of being detained while at port39 and neglecting the ship maintenance, it is a well-known secret among all seafarers that only a part of the mandatory number of drills is conducted while the other are conducted only on paper.
However, according to researches, during the last few years it has been established that 70-80% of the sea accidents are caused due to fatigue.40 In the end what appears to be the results of the implementation of the ISM Code, is that accidents occur not due to lack of preparation but due to lack of rest time for the crew. Therefore, it is submitted that the effect of the Code could rather be that ISM measures are directed not at preventing the accident from happening, but at ensuring that the crew knows its duties when it inevitably happens.
Another point of view which deserves attention is how a particular member of the crew carries out his duties. Even though the ship’s papers are in full compliance with the Requirements Requ irements of the SOLAS Convention, and the compulsory number nu mber of drills has been duly carried out and the crew is fully familiarised with their duties, there still might be accidents. Imagine the real-life situation when the Master relieves his Mate of duty in order the latter to g o and do a certain kind of work. During this period, the Master undertakes responsibility to be on watch. Unknown to anybody, the Master leaves the bridge in order to inspect the work w ork process of the crew. Or that the Master orders the duty officer to repaint certain parts of the bridge. In doing what he has been ordered, the duty officer does not keep a close look-out. And this is a time when whe n the inevitable accident might happen. happen . Probably there are many other similar examples which remain unknown to the public at large as they are commented only among colleagues.
Therefore, it would be quite right to say that the reasons for most of the accidents are caused not by the crew’s lack of knowledge, but due to the following factors: the extreme work-load to which they are subjected, the fact that the maintenance of the ship and not her safe passage is of utmost importance, and last but not least – due to the employment of qualified, but not reasonably acting personnel. So what appears to be the outcome from the above reasoning is that in spite of the quite-welcomed function of the ISM Code, it does not serve its purpose.
Why was this elaboration on the ISM Code made? And was it necessary? The reason is that the improvement of the ship safety and security will not be improved by the insurmountable workload that 39
Ch XI/4, SOLAS provides for port State Control officers to detain a ship when it is obvious that the crew is not familiarized familiarized with procedures relating to the safety of the ship. 40 Longborough Sleep Research Centre Report available on http://www.lboro.ac.uk/de http://www.lboro.ac.uk/departments/hu/groups/ partments/hu/groups/sleep/applied.ht sleep/applied.htm m [accessed on 08.03.2007]
8 the crew is obliged to do, but by improvement of the shore-based training and by psychological tests before sign-in and after sign-off. Because those who are on watch are the eyes and ears of the crew – on them depends to warn their colleagues when an accident occurs or when there is an attack and they are the first to take adequate measures to avoid a void the increase of the effect of o f the damage.
5. INTRODUCTION OF THE ISPS CODE
Following the terrorist attacks on the World Trade Centre in the United States on 11 September 2001, the international community became aware that the existing requirements regulating the security on the shipping industry were insufficient in the fight against crime. crime.41 In November 2001, at its 22nd session IMO called for a thorough review of o f the existing legislation relating to the suppression of crimes at sea.42 As a result in December 2002 IMO held a conference on maritime security where the introduction of a new code, the International Ship and Port Security (ISPS) Code, was made. The parties to the conference agreed that the new code should come to force force on 1 July 2004. As a result, the Code was was incorporated in a new chapter chap ter of the SOLSAS Convention, Chapter XI-2 - Special measures to enhance maritime security. However, the Code applies only to certain types of ships engaged on international voyages – such being cargo c argo ships of 500 gross tonnage and above, passenger ships and offshore drilling units.43 In addition, the requirements of the Code must also be met by port facilities servicing the abovementioned vessels and also vessels arriving and de parting on international voyages.44 The Code is mandatory only to those states which are signatories to the SOLAS Convention 45 irrespective of their level of economic development.46
The ISPS Code consists of two parts – (A) and (B). While Part A is mandatory, part B is recommendatory consisting of guidelines as to how the regulations in Part A should be fulfilled. Part A deals with four issues – the responsibilities of the contracting governments, governments,47the responsibilities of the ship-owners/ operators,48 the responsibilities of the ship crews, crews,49 and the responsibilities of the port facilities.50 41
Mitropoulos E, ‘The International International Ship and Port Security Facility Facility Security Code’ (2005) (2005) 76 LNG Review 76. At 77. 43 (A) - 3.1, ISPS Code. 44 (A) - 3.1.2 and 3.2. 45 http://www.imo.org/New http://www.imo.org/Newsroom/mainfram sroom/mainframe.asp?topic_id=897#w e.asp?topic_id=897#who ho [accessed on 11.03.2007]. 46 Report by UNCTAD Secretariat, ‘CONTAINER SECURITY: MAJOR INITIATIVES AND RELATED INTERNATIONAL DEVELOPMENTS’ para 79, available on http://www.unctad.org/en/docs/ http://www.unctad.org/en/docs/sdtetlb20041_en.pdf sdtetlb20041_en.pdf [accessed on 11.03.2007]. 47 (A) - 4. 48 (A) - 6. 49 (A) - 7. 50 (A) - 14 and 18. 42
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5.1 THE DUTIES OF THE CONTRACTING GOVERNMENTS.
The main task of the states is to determine the level of security at ports,51 ranging from level 1 – the level at which the ship or port facility usually operates, to level 3 - the highest security level used when an imminent or probable risk to the security of the staff and facilities exists.52 In case of level of level 3 danger, a contracting government is obliged to convey conve y the security information to all vessels flying its flag, to its ports as well as to the ships entering its ports. 53
The state, among its other duties relating to the implementation of the ISPS Code, ought to issue an International Ship Security Certificate either before the ship is put in service or the Certificate is being issued for the first time or its validity has expired.54 The state ought to approve Ship Security Plans carried on all ships that fall under the requirements of the Code and providing p roviding for the three security levels.55 In relation to its ports and their facilities, the administration must approve of Port Facility Security Plans, port facility security assessment as well as determine the port facilities that will be required to designate a Port Facility Security Officer. In addition, the administration has to establish the requirements for completing a Declaration of Security.56 What the Code explicitly excludes from the duties of the duly authorised government officers is that they are not allowed to inspect the ship security secu rity plans.57 The only exception is when there are clear grounds for believing that the ship does not comply with the Code.58 Furthermore, the Code relieves the contracting governments by allowing them to delegate their security certification duties to security companies subject to certain limitations. limitations.59
5.2 THE RESPONSIBILITIES OF THE SHIP-OWNERS/ OPERATORS.
The vessel owners and operators were required to ensure that each ship from their fleet obtain an International Ship Security Certificate by 1 July 2004.60 The certification is conducted by either an administration signatory to the ISPS Code or by an approval from the administration security company.61 51
Ibid (n 45) para 80. (B) – 4.8, ISPS Code. 53 Ibid (n 46) para 80. 54 (A) – 19.1. 55 (A) – 9.1. 56 (A) – 4.3 and 5. 57 (A) – 9.8. 58 (A) – 9.8.1. 59 (A) – 4.3. 60 (A) – 19. 61 (A) – 4.3. 52
10 The shipping company is obliged to appoint a Company Security Officer (CSO) and a Ship Security Officer. CSO’s duties are set out in the Code. These are the ensuring of a Ship Security Assessment (SSA) for each company’s ship,62 preparation and submission for approval of a Ship Security Plan (SSP)63 and assessment of its effectiveness together with the Ship’s Security Officer (SSO).64
SSA is carried out by way of internal, that is company, audits and security drills.65 The objective of the assessment is to ensure that the ship crew is familiar with its duties during the different levels of security as well as to identify any deficiencies that need to be rectified.66 All SSA are to be documented and retained by the company.67 It is so because SSA serves to better any shortcomings of the SSP. SSP.68 SSP must identify the Master’s authority and responsibility in relation to any safety and an d security matter, 69 identify CSO and SSO, provide for all the procedures in relation to the ship’s security and maintenance of security equipment, drills and matters concerning the audits of any security activity. 70 Furthermore, SSP must incorporate a procedure for its revision and update as well as a procedure for reporting to security instructions a contracting government gives at security level 3.71
On 1 July 2004, certain additional requirements were introduced in SOLAS. These concerned the update of the navigational equipment. Chapter V of SOLAS requires that all ships over 300 gross tonnage be equipped also with an Automatic Identification System (AIS). Its purpose is to communicate to other AIS equipped vessels and shore-based facilities the ship’s name, cou rse, speed and position.72 Furthermore, Chapter XI-2 states that all vessels be fitted with Ship Security Alert System (SSAS).73
The way SSAS works is the following: it is activated by a panic button located both on the bridge and at least one more place within the knowledge of the Master and SSO. SSO.74 By pressing the button, the ship transmits a signal to the shore informing the authorities there that the vessel is under threat or has been compromised.75 However, SSAS’s difference from the GMDSS procedures is that while a signal sent via GMDSS is detected by both ship and shore stations, SSAS signal can be detected by shore stations only.
62
(A) – 8.1. (A) – 9.1. 64 (A) – 9.5. 65 (B) – 1.9. 66 (B) – 13.5. 67 (A) – 8.5. 68 (B) – 9.1. 69 (A) – 6.1, read together with para 83 of the UNCTAD Report (n 45). 70 (A) – 9.4. 71 (A) - 9.4. 72 Ibid (n 46) para 83. 73 Ibid. 74 SOLAS, Ch XI-2/6. 75 http://www.satamatics. http://www.satamatics.com/ssas/ssas_ship com/ssas/ssas_ship_security_ale _security_alert_system_regula rt_system_regulations.htm tions.htm [accessed on 13.03.2007]. 63
11
5.3 THE RESPONSIBILITIES OF THE PORT FACILITIES.
The reason why ports are obliged to comply with the requirements of the ISPS Code is because ships’ crews cannot manage themselves with the difficult task to have an extensive control co ntrol over the port staff working in the vicinity of the ship or on board while she is moored. According to the Code everybody who wants to board the vessel, must be issued a boarding pass by the crew, his or her identity recorded in a special book kept on board and that s/he be assisted to the crew member whom s/he wants to visit.76It is done this way because the visitor’s v isitor’s whereabouts must be controlled at all times and not be let to pass through a restricted area unless supervised. Con sider the fact that when the vessel is in a shipyard, the workers boarding her are several times more than the crew. Not only this, but the people working aboard are constantly changing. It is quite likely that even the most careful watchman will miss somebody unattended aboard the ship. The above example is quite possible even when the vessel is at port and shore-gangs work aboard.
What about the fact when the ship is repaired by being moored alongside another vessel and the access to that other vessel is only possible by passing through the first one? The watchman will have to issue passes, take down their identities, accompany them till they disembark the ship. In addition, when accompanying somebody, he must be substituted by his colleague in order to keep ke ep an uninterrupted watch – quite strange a reasoning, but this seems to be the reality nowadays if the requirements of the ISPS code are to be observed. Therefore, the presence of the Port Security staff is more than useful – to relieve the vessel crew of this cumbersome bureaucratic procedure and let it do its job relating to the maintenance of the ship. In addition, by this double sieve, that is the port security and the ship security control, potential criminals will be less likely to succeed in their u lterior motives. Furthermore, the link between the port security staff and the state law enforcing authorities is strong enough to ensure that any information, vital for the integrity of the state, is less likely to be lost somewhere in the “corridors of power”.
Having recognized the importance of port facilities, this paper will proceed with the requirements which the Code imposes on them. The first is the existence of the Port Facility Security Plan (PFSP). It is issued by the state government or by an endorsed security agency on completion of a Port Facility Security Assessment (PFSA). 77 However, the PFSP issued by a security agency becomes valid only after it has been approved by the state government.78 Among the things which the PFSA must include are the identification of vital objects relating to the port security; identification of possible threats and the 76
(B) – 9.11. (A) – 15. 78 (B) – 15. 77
12 likelihood of their occurrence; identification of the we aknesses of human factors and port infrastructure.79
Section 16 in Part (A) of the Code lists the minimal requirements which a PFSP must meet in order it to be approved by the government. However, the section is not a closed list and the imposition of additional requirements depends on the specifics of the port facility, the vulnerability of the country to be subjected to attacks and most of all - by the PFSA which addresses the issues met during the assessment of the port facility.80
For each port facility, a Port Facility Security Officer (PFSO) must be appointed. 81 The part of the Code dealing with PFSO’s duties is also not a closed list and relates to inspection and maintenance of the port facility, that adequate training of the security staff is carried out, that the PFSP is constantly updated and that reports to the government authorities of events threatening the security of the state/ port facility are done.82 Furthermore, the PFSO coordinates the implementation of the PFSP aboard vessels which happen to be within the area of the port facility. By serving as a link between the state and the ship and the state and the company owner of the ship, it seems that it will not b e wrong to consider PFSO as a manager of a port with a highly restricted access.
In order all the requirements of the Code Cod e to be met, the contracting con tracting governments are obliged to exercise the relevant control over ships entering the ports of their jurisdiction. It is so because different and stricter measures must be taken with regard to ships whose state of registry is not bound by the Code or Chapter XI-2 of SOLAS.83 These include delaying, detention, restriction of operations including movement within the port.84 Furthermore, the ship may even be refused en try or expulsed from the port facility as an utmost security measure. 85 All these measures mean one and the same thing – provided that a company does not comply with the Code, it will lose its market due to the cargo-handling delays. Therefore it is quite right to say that “market forces and economic factors will drive compliance” with the new regulations.86
However, a problem arises when an ISPS compliant vessel enters a non-ISPS certified port. How to reconcile the interests of the carrier whose cargo has to be discharged in an ISPS Code compliant state as quick as possible, the crew which has carried out its duties in accordance with the Code in the loading 79
(A) – 15. (A) – 16.1. 81 (A) – 17.1. 82 (A) – 17.2. 83 (B) – 4.30. 84 (B) – 9.1. 85 Ibid. 86 http://www.imo.org/New http://www.imo.org/Newsroom/mainfram sroom/mainframe.asp?topic_id=897#w e.asp?topic_id=897#whoimplement hoimplement [accessed on 15.03.2007]. 80
13 port and the ISPS port-of-call? ISPS code does not give an answer to this problem. It only specifies the basic requirements which states must comply with and leaves to their discretion the determination of issues not dealt with in the Code.87However, the Code is to be read together with Chapter XI-2 which says that in situations like the discussed one, the ship can request the completion of a Declaration of Security. 88 However, it seems that this regulation is written in non-mandatory terms which means that it is up to the Ship Security Officer to decide whether to execute such a declaration. However, USA, for example, requires that an ISPS Code compliant ship whose last port-of-call was non-ISPS Code compliant, has to increase its level of security while there, prepare a Declaration of Security and inform the relevant US port security authorities about the measures undertaken by the crew.89In addition, the undertaken procedures providing higher level of security are to be logged in the ship’s log-book .90 If the above requirements are neglected, it means that in USA the vessel will be treated as a vessel whose security has been undermined.91 It means that the crew runs the risk of being detained, the cargo not handled, and as a result the ship-operator would suffer losses. losses.92
6. WILL THE ISPS CODE AND THE EXISTING INTERNATIONAL INTERNATIONAL LEGISLATION HELP IN THE FIGHT AGAINST SHIP INCIDENTS?
It was clear that even with the introduction of the ISPS Code, the task of the au thorities to fight crime happening at sea would be impossible without making amendment to the existing legislation relating to seafarers’ identification documents. The existing, 49 year old, co nvention93 even though meeting the basic requirements for identity documents, is outdated and ca nnot meet the conditions of today’s much higher security needs.94 Both the ship owners and seafarer organizations welcome the idea of a new document overtaking the old International Labour Organisation’s (ILO) 1958 Seafarer’s Identity Document Convention.95
Negotiations for a new convention started in 2002,96 and during the ILO Conference in June 2003 the result was at hand – ILO Convention Conv ention No 185. Two member states had to ratify it before it came into
87
(A) – 1.3.1. (A) – 5.2. 89 Memorandum of the World Shipping Council from 29.06.2004, available on http://www.evergreenmarine.com/tbn1/html/ISP marine.com/tbn1/html/ISPS_CodeFAQs. S_CodeFAQs.doc doc [accessed on 16.03.2007]. 90 Ibid. 91 Ibid. 92 Ibid. 93 ILO Seafarers’ Identity Documents Convention, 1958 (C108). 94 Zarocostas J ‘US diplomatic push for seafarer’s ID document’, release date 30.10.2002 available on http://www.lloydslist.com [accessed 20.03.2007]. 95 Ibid. 96 Ibid. 88
14 force. These were France and Jordan. Jordan.97 However, even though today the new Convention is in operation, it has not fully substituted its predecessor. The reason is twofold - the first is that many of the ILO member states still have not ratified it; the second – the substitution of the old identity documents with the new ones is a costly procedure. procedure.98 Furthermore, the new Convention is non-mandatory, that is no state that is a member to ILO violates the international regulations when it keeps on issuing the old documents.
If compared to the ISM Code in its earliest, non-mandatory form – the period before it became a part of SOLAS – a person is quite correct in saying that the new ILO Convention does d oes not serve any purpose. Even though it is mandatory for the states which have ratified it, worldwide there are 1.2 million seafarers from various countries. 99 It means that the crew members with old documents will much easier evade justice should occasion occur. occ ur. Assume that a tanker vessel complies with the ISPS Code. However, a terrorist with ideally credible seafarer documents embarks her. At a certain stage the vessel will become not only the source for committing a terrorist attack, but it can also cause a huge ecological catastrophe. An example which one is quite likely to happen in future.
Therefore, what is suggested is that Convention No 185 becomes 185 becomes mandatory to all ILO member states without them ratifying it in order it to be binding on them, that is the rule of silent consent should apply. The result will be that the new requirements will decrease the bureaucratical burden of filling hundreds of security papers off the shoulders of crew and port security staff. The reason for believing so is because the forgery of the new documents would be very difficult which in turn will decrease the number of people using them to gain access to vessels. In addition, the security measures to which ports are subjected today will become a sufficient tool for meeting the requirements of fight against organized crime. Furthermore, it will also allow ship crews focus on more pressing necessities. Another aspect which deserves attention is that with the new IDs, crew members will not be treated as criminals while at port and will not be denied shore leaves by the port authorities arbitrarily.100 Furthermore, by changing the specifics of the identity documents, the level of control over transnational criminal organisations in the sea business will be increased.
97
ILO press release No ILO/04/37 – ‘New ratification opens the way for ILO Convention on seafarers’ ID card’. ILO press release No ILO/03/25 – ‘ILO Conference opens talks on new seafarer identity cards: Initiative receives receives new impetus from G8’. 99 Ibid. 100 Osler D, ‘Where is evidence for terrorist crews?’, release date 21.10.2002 available on http://www.lloydslist.com [accessed 25.03.2007]. 98
15 7. FURTHER MEASURES UNDERTAKEN BY STATES
Are the suggested reforms in the existing legislation sufficient to increase the safety at sea? Many people may say this is the case. However, there are additional factors to be taken in consideration. First of all, the requirements of SOLAS discussed above do apply only to certain types of vessels. Nevertheless, it is accepted that the ship crews will be more controlled with the new regulations in force. However, it is strange how those who sail small unregistered vessels who are released from the requirements of SOLAS are to be controlled. The difficulty comes from the fact that they are used locally and g reater part of the crew is unlicensed. But the greater part of pirate attacks is caused mainly by the use of small and maneuverable motorboats. motorboats.101 What appears to happen is that a compliant with the requirements of SOLAS ship, will still be an easy prey to the will-be attackers. For instance, the purpose of the AIS, required by the ISPS Code, is to provide data to the duty officer about the vessel traffic in the vicinity. But in order AIS to serve its purpose, AIS from the other vessels is also necessary. And because the attacking boat is not equipped with such a system, it remains unnoticed. In addition, it is ridiculous to assume that when the navigating officer o fficer acquires a target on the radar which wh ich does not supply its ISPS Code details, he will raise the alarm. It is so because in most of the cases, the acquired “target” is either a cloud or rain or a small craft. Another relevant factor is that a greater p art of the attacks occur night time 102 when the crew on duty are the only people who do not rest and it is a time when the visibility is restricted.
By enacting the ISPS Code, The International Maritime Organisation introduced three levels of security. Therefore, it is possible to argue against the above reasoning that when the ship is engaged in sailing through areas prone to attacks, the SSO is obliged to raise the security level from one to two and follow the instructions per SSP in order the vessel to be ready to repel any attacks. Yes, but similar actions serving the purpose to avoid acts of piracy were introduced by the ISM Code in the form of drill exercises.103 Furthermore, the IMO strongly discourages that crew members have firearms aboard an d use them against attackers. attackers.104 On the one hand, it is well not to have weapons on board. It is so because in a small social group such as the crew in circumstances of high level of stress105 most of the conflicts arise from trivial circumstances. Presence of a weapon in the hands of the one of the conflicting parties may lead to lethal consequences to anybody aboard. In addition, even if the firearms are kept in a special
101
Abhyankar J, ‘Piracy and Maritime Violence. A Continuing Threat to Maritime Industry’, Hong Kong - 06.11.2002. Ibid. 103 Shipping companies such as NAVIBUL, STAMCO and OCEAN STAR STAR have incorporated as a part of their SMS drills for fighting piracy (see also n 36). 104 IMO circular (Ref. T1/13.01 from 29.05.2002) – ‘Piracy and Armed Robbery Against Ships’ para 54, available on http://www.imo.org/includ http://www.imo.org/includes/blastDataO es/blastDataOnly.asp/data_i nly.asp/data_id%3D6698/623rev3.pdf d%3D6698/623rev3.pdf [accessed [accessed on 18.03.2007]. 105 Nikolic N (n 38). 102
16 locker, they might become an easy game to the pirates while at the hands of the untrained crew trying to ward off the assailants.106
What it means is that the crews, taking into consideration the high risks of their lives, are better to defend themselves before the attackers have embarked the vessel and report the attack. After that, the only means available is to inform the nearby states ab out the violation of the ship security. But factors such as the great distance between the location of the attack and the shore107 or that the state which is nearest to the incident site does not have the means to maintain its fleet updated and hours of precious time pass till whatever actions are undertaken to rescue the crew, lead to the conclusion that the new requirements may only be abided by the developed states – states where crimes against ships are very rare - while the most vulnerable territories, such as the shores of Somalia, Nigeria and the Malacca Strait will keep on to be known as the most dangerous areas of shipping even when the highest level of security is maintained.
It is not that the more strict requirements to which a ship crew is subjected today serve no purpose at all, but it is submitted that crime should be eradicated from within the country before embarking on an y international arena such as shipping. That is why, the increase of sea and air control in the most dangerous areas is to be seen as a primary duty of the international community. Such efforts were undertaken on 13 September 2005 between Malaysia, Singapore, Indonesia and Thailand by introducing a joint air-patrol venture called ‘Eye in the Sky’ (EiS).108 In addition the first three countries and IMO signed a memorandum which focuses on monitoring the ships passing through the Malacca Strait, enhancing security and supervising the environment.109
The purpose of EiS patrols is to survey the waterway from air while the naval patrols of the three littoral states – Malaysia, Singapore and Indonesia – are to physically exercise control over their domains, respectively.110 However, it has been quite correctly commented that the efforts of these countries suffer certain deficiencies – it is impossible for EiS to operate on a 24 –hour basis due to lack of financial resources. Problems also arise with whether the radar system controlling the Malacca Strait traffic is sensible enough to acquire small boats which are normally used as a source of committing acts of piracy. 111
Furthermore, even if EiS is capable of detecting small suspicious crafts and report them to the
106
Ibid (n 104). Vessels passing through the Gulf of Aden are advised to sail 100 miles off the Somalian coast. 108 Ocean Policy Research Foundation (OPRF) MARINR Monthly Report, September 2005 at 4 citing VOA’s September 8 Report – ‘Southeast Asian Countries to begin Air Patrols over the Malacca Strait’. 109 OPRF MARINR Report (Ibid) at 4 citing VNA’s September 9 Report – ‘Malacca security conference ends with statement’. 110 Gerald Ong and Ho Joshua, ‘Maritime Air Patrols – the New Weapon Against Piracy in the Malacca Straits” from 13.10.2005 available on http://www.ntu.edu.sg/rsis/ http://www.ntu.edu.sg/rsis/publications/comme publications/commentaries2005.html ntaries2005.html [accessed on 17.03.2007]. 111 Ibid. 107
17 authorities, it is uncertain how one can tell that these ‘suspicious’ vessels are actually involved in pirate activity.112 Therefore, in order to fight these crimes more effectively, the help of the international community should be recognized. Fighting crime at sea is not a concern of o f one or two states. Considering that about 90% of the world-wide transport of goods is done by sea,113 it is not necessary to elaborate on how many states are affected by the accidents at sea.
Furthermore, the participation of the international community is to be recognised by having regard to one more factor – the fight against corruption among state officials. What is the link between corruption and ISPS Code requirements? The common between them is that the law enforcement agencies are sometimes engaged in illegal activities.114An ISPS Code complying vessel has to restrict unauthorised access to the ship in order to maintain its security. However, on the other hand, the crew must comply with the orders of the ‘authorised’ government officials coming to inspect the vessel. And again – useless and falsified filling in of security papers showing that the inspection was carried out with due regard, that no faults were noticed during the inspection and that the ship’s integrity has at all times been compliant with the ISPS Code. Compliant - on cond ition that the Trojan horse has been let in the ship.
8. CONCLUSION:
This paper tried to show that even though the latest amendments in the SOLAS Convention115 are quite welcome, their implementation is defective. SOLAS does not apply to vessels of certain dimensions and sailing within certain areas. In addition, what the IMO missed considering when drafting the ISPS Code is that most of the attacks are done do ne by way of small and maneuverable crafts. It means that the lesser the control over non-SOLAS vessels, the higher the risk that their crews be either injured more easily by attacks or that their participation in illegal activity remain unnoticed by the authorities. Furthermore, the uselessness of the extreme amount of paper-work which the crew members have to complete co mplete in order to comply with the requirements of ISM and ISPS Codes distracts their awareness from more important issues relating to the safety of the ship.
In addition, it was shown that a stricter control on the crew members is to be made – not only their qualifications are to be considered, but also whether they are psychologically fit. Finally, in order to prevent more casualties at sea arising from safety/ security failures, the international community ought to participate 112
Ibid.
113
Chandrasekaran, ‘Anarchy ‘Anarchy on the Seas - Pirates Flourishing in Asia’, available on http://www.cdnn.info/news/article/a010618.html [accessed 19.03.2007]. 114 Liss C, ‘ The Privatisation of Maritime Security: Maritime Security Security in Southeast Asia: Between a rock and a hard place?’, BISA Conference at 7, available on www.bisa www.bisa.ac.uk/2006/pps/lis .ac.uk/200 6/pps/liss.pdf s.pdf [accessed [accessed 20.03.2007]. 115 These are the ISPS Code, the ISM Code, Ch IV & V of SOLAS.
18 much more actively than before. Because, it is very clear that even with the strictest obligations imposed on the shipping companies and the most sophisticated devices of control with which the ships are equipped, there will still be accidents. And such measures have already been undertaken.116 However, amendments should also be made of the SOLAS requirements because it is useless, as was indicated, to introduce legislation hard to comply with. ‘Compliance’ meaning either neglecting the most important duties of the crew to the expense of complying with the conventional requirements or doing what is relevant and ‘complying’ with the requirements only on paper.
116
Eg EiS (n 108).
