Opinion on the proposal for a Council Directive concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions () (94/C 393/09)

On 30 March 1994 the Council decided to consult the Economic and Social Committee, under Article 84(2) of the Treaty, on the abovementioned proposal.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject, drew up its Opinion on 20 July 1994. The Rapporteur was Mr Whitworth.

At its 318th Plenary Session (meeting of 14 September 1994), the Economic and Social Committee adopted the following Opinion unanimously.

1. Introduction

1.1. This Proposal is one of the more important measures foreshadowed by the Commission in its Communication on a Common Policy on Safe Seas [COM(93) 66] dated 24 February 1993. That Communication was the subject of a Committee Opinion dated 24 November 1993 which supported in principle the action proposed in respect of Port State Control.

2. Background

2.1. International standards for the construction and operation of ships, the training and certification of crews and certain aspects of living and working conditions on board are laid down in a corpus of international Instruments adopted over the years by the International Maritime Organization (IMO) and the International Labour Organization (ILO). These Instruments are binding on those States which ratify them and in such cases the States are responsible for ensuring that ships operating under their flags comply with the standards (Flag State Control).

2.2. In 1981 the IMO introduced the principle that contracting governments should take steps to ensure that ships visiting their ports which were not parties to the Safety of Life at Sea (SOLAS) Convention should be required to conform to standards not lower than those prescribed in the Convention. This principle has been inserted in all subsequent international maritime legislation thus establishing a requirement for ships in international trade to comply with international standards whether or not their country of registry has ratified the relevant convention. This is the legal basis of Port State Control as it is exercised today.

2.3. The Conventions provide, in general, that Port State Control shall in the first instance take the form of the examination of the Certificates which the Conventions require to be on board the ship. Such certificates, if valid, shall be accepted unless there are clear grounds for believing that the condition of the ship or its equipment does not substantially correspond with the particulars of the Certificates. Deficiencies are to be remedied before the ship proceeds to sea. Major deficiencies which could hazard the ship or persons on board may necessitate the detention of the ship till remedied.

2.4. A number of IMO Resolutions adopted since 1975 provide guidelines for Port State Control. IMO Resolution A742(18) adopted on 4 November 1993 extended the scope of Port State Control to cover a number of specified Operational Requirements in respect of the safety of ships and pollution prevention. The relevant Conventions are in the course of revision to embrace the terms of this Resolution (e.g. a new Chapter XI of the SOLAS Convention including a new Regulation on Port State Control operational requirements is due to enter into force on 1 January 1996).

3. The Memorandum of Understanding

3.1. The (maritime) Member States of the Community, together with Finland, Norway, Sweden and latterly Poland and Canada, currently operate a common policy and practice in regard to Port State Control. This is laid down in a Memorandum of Understanding (MOU) which dates from 1982 between the Maritime Authorities of the countries concerned. The Memorandum has been consistently revised to update standards to reflect agreements reached within the IMO and to introduce more effective inspection procedures.

3.2. While acknowledging the value of the Port State Control regime stemming from the Memorandum, the Commission points out that its provisions are not legally binding on the signatory States; further that there is no systematic approach to inspection and detention of ships and a lack of uniformity in the inspection criteria adopted. The Commission also suggests that some Member States apply the terms of the MOU less rigorously than others and that substandard ships can avoid more stringent inspections by selective use of ports of destination. It further takes the view that the MOU regime has failed to reduce the numbers of maritime casualties and pollution incidents in European waters.

4. The Commission's Proposal

4.1. The Draft Directive seeks to establish a uniform Port State Control regime throughout the Community (and hence throughout the EEA) on a mandatory basis. Its requirements will therefore be legally binding on Member States and hence on their surveyors who carry out ship inspections.

4.2. The detailed provisions of the Directive embrace the terms of the current MOU with the addition of quite extensive and detailed new criteria for inspection and detention. In particular it places a somewhat higher emphasis on Detention, institutes an 'Enhanced Control Regime' for certain categories of ships, suggests a 'Special Inspection Regime' for ships of a proven higher standard and lays down minimum qualifications for Port State Inspectors.

4.3. While the Commission apparently intends that continued use should be made of existing MOU resources, the draft Directive nevertheless appears to duplicate the work of the existing MOU Secretariat and controlling Committee by providing that similar functions shall also be carried out by the Commission assisted by a new Advisory Committee.

5. General Comments

5.1. Consistently with the support in principle which it accorded to the proposed action in its Opinion on the Commission Communication on Safe Seas, the Committee welcomes the draft Directive and endorses the objectives which it seeks to meet. In particular it supports the declared strategy of the Commission to strengthen the operation of the MOU by requiring all Member States to apply Port State Control in a uniform manner and to devote sufficient resources to its operation to ensure that minimum inspection targets are met.

5.2. It believes that the criteria for the inspection and detention of vessels should be sufficiently rigorous to ensure that all vessels trading in European waters comply with all aspects of internationally agreed standards and hence that the operation of sub-standard ships is eliminated. These objectives should be achieved without instituting an unduly bureaucratic regime or imposing excessive burdens on the great majority of ships which are properly operated in conformity with their national requirements and international standards. In this context detailed inspection requirements should not prolong a ship's normal turn-round period in port unless clear evidence of potential deficiencies renders this necessary.

5.3. The Committee has noted that the detailed provisions of the existing MOU have been supplemented and strengthened in a number of areas. It welcomes the fact that generally speaking such new criteria correspond with the provisions of IMO and ILO instruments currently or shortly to come into force. This is consistent with the views expressed in a number of earlier Committee Opinions (and particularly in paragraph 3.4.3 of the Opinion of the Common Policy on Safe Seas) that obligations imposed on non-EC ships should be based on internationally agreed standards and requirements. Nevertheless there remain some areas of potential conflict between Community and international law.

5.4. It is recognized that for the Port State Control to be fully effective and consistently applied its essential requirements must be legally binding on the Governments of Member States and reflected in their domestic legislation. However the effectiveness of ship inspections is essentially dependent on the judgement of individual surveyors. Accordingly the wording of the Articles and more particularly the Annexes should be consistent with that of the IMO Instruments [particularly Resolution A742(18)] where the more detailed procedures are expressed as guidelines to be followed at the discretion of the surveyor when he deems them to be necessary or appropriate in the circumstances obtaining on board a particular ship.

5.5. Equally it is important that the specific criteria which surveyors are required to follow should be capable of objective assessment so as to avoid disputes about the outcome of inspections and the pressures to which surveyors may be subjected in this context.

5.6. The draft Directive rightly places considerable emphasis on detention pending rectification as the ultimate sanction when an inspection reveals deficiencies which are clearly hazardous to safety, health or the environment. It is equally important that there should be safeguards against the power of detention being exercised in an arbitrary or capricious manner by an individual surveyor. Accordingly the requirement in Article 9.4 that surveyors should act in accordance with the provisions of Regulation 19(f) of Chapter I to the SOLAS 1974/78 Convention is to be welcomed.

5.7. The Committee is unclear about how the proposed Directive and the current Memorandum of Understanding should continue to co-exist. There are a number of references in the Directive to the on-going function of the MOU and its administration as well as its SIRENAC E database. Yet the detailed inspection criteria which the MOU contains will be superseded by the corresponding provisions of the Directive and thus for practical purposes will be of no effect. It is generally acknowledged that the MOU has performed a valuable and effective role over the past 12 years in coordinating port state control in European waters and has become the model for similar agreements in other parts of the world. There would be widespread concern if the proposed Directive were not to take full advantage of the proven expertise which the MOU has built up during more than a decade of its existence.

5.8. It is clearly desirable that the MOU procedures and those of the Directive in its final form should be brought into line. One way of achieving this would be for the controlling Committee of the MOU (which comprises representatives of each of the participating countries and the Commission) to align the MOU policies and requirements with regard to inspections and detentions with the equivalent provisions proposed in the draft Directive. (The Committee notes with satisfaction that a similar proposal is contained in the draft Final Declaration of the Fifth Ministerial Conference on Port State Control). The Commission could then bring forward a Council Directive making the revised Memorandum, together with such amendments thereto as may be subsequently agreed from time to time, binding on Member States. In this way the accumulated expertise and world-wide influence of the MOU would be retained and duplication of functions between the Commission and the MOU would be avoided, while at the same time enhanced legally-binding criteria would be adopted.

5.9. The Committee recalls advocating a similar approach in its Opinion on the Commission proposal for a Council Directive on the approximation of the laws of Member States with regard to the Transport of Dangerous Goods by Road (CES 1281/93) when it suggested that the Council Directive should require Member States to comply with the ADR Agreement on the International Carriage of Dangerous Goods by Road currently in force.

5.10. This procedure should not be allowed to delay the initial introduction of more stringent and effective Port State Control procedures but once in operation should permit the procedures to be updated more swiftly.

5.11. Since the draft Directive was published a Committee of Inquiry into the prevention of pollution from merchant shipping, set up by the UK government under the chairmanship of Lord Donaldson has issued its Report. It shares the view of the Commission that high priority should be given to strengthening the effectiveness of Port State Control. It makes a number of detailed proposals which it suggests that the UK government should recommend to its MOU partners for incorporation in the MOU procedures. Among these are proposals for self-targeting, saturation inspections and the identification of the owners and managers of ships found to have serious deficiencies. Clearly this Report constitutes a useful contribution to current thinking on Port State Control and the Committee believes that the Commission should give full consideration to its proposals. Other helpful proposals should be similarly considered.

6. Specific Comments

6.1.

Article 2 - Definitions

6.1.1. The reason given in the Explanatory Memorandum for the addition of the International Convention on Tonnage Measurement of Ships 1969 is not understood since it is not intended that existing ships must be 'upgraded' to comply with the 'additional requirements' after the new gross tonnage arrangements take effect on 18 July 1994.

6.1.2. Nevertheless after 18 July all ships are required to be provided with an International Tonnage Certificate (1969) and inspection of such a Certificate will be an integral part of Port State Control as proposed in the Draft Directive.

6.2.

Article 3 - Scope

6.2.1. The proposed extension of the Port State Control procedures to ships sailing in the territorial waters of a Member State would present insuperable practical difficulties. The Explanatory Memorandum suggests that this is necessary to cover possible intervention on a ship in transit which has been accused of a pollution incident. However the UN Law of the Seas which deals at length with the rights of 'innocent passage' specifies the powers of intervention under international law which are adequate to deal with such incidents. Further, ships in transit are not covered by the Port State Control provisions of the IMO and ILO Conventions on which the Directive is based.

6.2.2. Nevertheless the provisions should be applicable to any (e.g. river) port to which seagoing ships have access and to ships anchored outside port limits.

6.3.

Article 5 - Inspection Commitments

6.3.1. It is clear from the definition of a 'ship' in Article 2 that the 25 % target comprises ships other than those registered in the Member State. The fact that this should be read in conjunction with the priority list in Annex I should ensure that a Member State cannot meet its obligations by merely selecting the easiest ships for inspection. It is noted that the thirteenth Recital states that the target should ensure that about 80 % of the foreign ships operating within the area at a given time should have been subject to an inspection. Possibly Article 5.1 might be expanded to reflect these points.

6.3.2. It should be made clear that the priority list in Annex I is for the guidance of Member States and that the numbering of the criteria is not indicative of the order of their importance.

6.3.3. As the fourteenth Recital points out a Special Inspection Regime could enhance maritime safety by providing an incentive to shipowners to apply standards above those required by the Conventions. The detailed criteria would need to be tightly drawn and should be the subject of detailed consultation prior to adoption. They should not exempt vessels from periodic random inspection.

6.4.

Article 6 - Inspection Procedure

6.4.1. Surveyors should be obliged to 'satisfy themselves' as to crew ability and awareness [paragraphs 1(b) and (c)]; the term 'verification' connotes an unrealistic degree of proof. 'Ability' is not an appropriate word in the context of Articles 7 and 9 of the Training Directive. Ships from outside the EC should be required to comply with the STCW Convention and IMO Resolution 742(18) rather than with a Community Directive which is not binding upon their countries of registration.

6.4.2. Paragraph 1(d) should call on the surveyors to make an initial assessment of the vessel including the living and labour conditions as specified in the relevant ILO instruments.

6.4.3. The reference to the 'related certificate' in paragraph 1(e) is not understood as there is no such requirement in ILO Convention 164 which is shortly to be incorporated in the Appendix to Convention 147. However a requirement for the presence of a ship's Medical Guide would be appropriate.

6.4.4. The investigation of any report or complaint (per item 2 in Annex III) might be added to the minimum elements of inspection in paragraph 1.

6.5.

Article 9 - Rectification and Detention

6.5.1. The requirement of Regulation 19(f) of Chapter I of the SOLAS 1974/78 Convention that all possible efforts should be made to avoid a ship being unduly detained or delayed should be spelled out in this Article as is the case in paragraph 3.11 of the MOU.

6.6.

Article 10 - Follow-up of Inspections and Detentions

6.6.1. The requirement that a ship whose deficiencies cannot be rectified in the port of inspection should only be allowed to proceed to a repair yard 'located in the Community' is queried. The restriction has no basis on safety grounds and indeed the voyage to a non-Community port with appropriate repair facilities could well be shorter and safer. Nevertheless re-inspection after repairs should be by a Community surveyor.

6.7.

Article 11 - Professional Profile of Surveyors

6.7.1. The minimum criteria for surveyors detailed in Annex VII is generally welcomed. The IMO Sub-Committee on Flage State Implementation is developing similar criteria and the two should not be incompatible. A reference might be made to the need for appropriate training and there could be derogations from the two-year qualifying period in such circumstances.

6.7.2. In its earlier Opinion on the Common Policy on Safe Seas the Committee suggested that Community funds could make a significant contribution to the availability and training of surveyors to carry out port state inspections. The Committee welcomes the initiatives already taken under the KAROLUS programme.

6.8.

Article 14 - Publication of Detentions

6.8.1. The proposal that details of detentions should be published is welcomed as incentives for shipowners, flag state administrations and classification societies to ensure compliance with international standards. Publication could be effected through the MOU Secretariat.

6.8.2. However the commercial damage occasioned by such publication could be considerable. Hence publication should exclude detentions for deficiencies which have arisen through no fault of the shipowner - e.g. heavy weather damage or accidental machinery failure. The intention to publish should be notified at the time of detention so that representations to the contrary can be made.

6.9.

Article 15 - Fee for reinspection

6.9.1. The heading of this Article makes clear, though the text does not, that the fee is chargeable only for second and subsequent inspections to ensure that deficiencies revealed on the first inspection have been rectified.

6.10.

Articles 17 and 19 - Advisory Committee and Procedure

6.10.1. The necessity for these provisions would not arise if the procedure suggested in paragraph 5.8. of this Opinion is followed.

6.11.

Annex I - Priority List

6.11.1. Average detentions (referred to in paragraph 2) should be assessed on both a percentage and numerical basis.

6.11.2. A new paragraph should be added 'Ships flying the flag of a State which has failed to ratify the main body of applicable IMO and ILO Conventions'.

6.12.

Annex III - Clear Ground for more Details

6.12.1. Item 2 - a report or complaint - might equally appear in Annex I as a prima facie reason for inspection. It is implicit that surveyors should respect the anonymity of the source of the complaint.

6.13.

Annex IV - Procedures and Guidelines

6.13.1. ILO publication 'Inspection of Labour Conditions on Board Ships' constitutes the sole reference in the Directive to the corpus of ILO Conventions governing shipboard living and working conditions comprised in ILO Convention 147.

6.13.2. As indicated in its earlier Opinion on the Common Policy for Safe Seas the Committee attaches considerable importance to this aspect of Port State Control and recommends that the Conventions contained in the Appendix to Convention 147 should also be listed in the Annex. Reference should also be made to the application of new and additional ILO Conventions as they come to be added to the Appendix.

6.14.

Annex V - Enhanced Control

6.14.1. The enhanced control requirements for certain categories of ships which warrant such detailed examination are welcomed. Clearly close attention needs to be paid to older ships. However, as was pointed out in paragraph 3.7.1 of the Committee's Opinion on the Commission Communication on Safe Seas, 'age itself is not an efficient criterion of the quality of a vessel if it is built, operated and maintained in accordance with international standards'. Accordingly, it is difficult to justify a ship's age as a rigid criterion, hence the specific figures proposed for oil tankers and bulk carriers for the application of the listed Guidelines should permit divergences where justified in individual cases.

6.14.2. The same room for discretion should be allowed for enhanced control of passenger ships. Nevertheless the suggested criteria are of the utmost importance and the capability of the crew in these respects is an important consideration.

6.15.

Annex VI - Deficiencies which may warrant Detention

6.15.1. An additional example should be added as paragraph 11: 'Deficiencies arising from non-compliance with the requirements of ILO Convention 147 when these are clearly hazardous to the safety of the ship or to the safety and health of the crew.'

7. Summary and Conclusions

7.1. The Committee welcomes the draft Directive and endorses the objectives which it seeks to meet.

7.2. While recognizing the considerable achievements of the MOU regime in the twelve years of its existence it acknowledges that Port State Control inspection requirements should have the force of Community law and be applied in a uniform manner.

7.3. It reiterates the views expressed in its previous Opinions that Community requirements should be based on international instruments adopted by the IMO and the ILO and welcomes the fact that this situation generally underlies the requirements of the present Directive.

7.4. It is important that the Port State Control regime should be sufficiently rigorous to ensure the effective application of internationally agreed standards in all vessels calling at Community ports, without at the same time penalising those ships which are properly operated and maintained. Generally speaking the draft Directive achieves a proper balance in this respect.

7.5. The Committee is concerned that full advantage should be taken of the proven expertise which the MOU has built up. An effective means must be found for the Community and the MOU regimes to co-exist: the requirements of each should be brought into line with the other and unnecessary duplication of functions avoided.

7.6. The Commission should examine the suggestions in regard to Port State Control made in the recent UK Report of the Inquiry into the prevention of pollution from merchant shipping before finalizing the present draft Directive.

7.7. The present Opinion makes a number of specific comments designed to further the accuracy and effectiveness of the Commission's proposals.

Done at Brussels, 14 September 1994.

The President

of the Economic and Social Committee

Susanne TIEMANN

() OJ No C 107, 15. 4. 1994, p. 14.