Legal provisions of COM(1994)73 - 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

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dossier COM(1994)73 - Enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member ...
document COM(1994)73 EN
date June 19, 1995


Contents

Article 1 - Purpose

The purpose of this Directive is to help drastically to reduce substandard shipping in the waters under the jurisdiction of Member States by:

- increasing compliance with international and relevant Community legislation on maritime safety, protection of the marine environment and living and working conditions on board ships of all flags,

- establishing common criteria for control of ships by the port State and harmonizing procedures on inspection and detention, taking proper account of the commitments made by the maritime authorities of the Member States under the Paris Memorandum of Understanding on Port State Control (MOU).

Article 2 - Definitions

For the purpose of this Directive including its Annexes:

1. Conventions means:

- the International Convention on Load Lines, 1966 (LL 66),

- the International Convention for the Safety of Life at Sea, 1974 (Solas 74),

- the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78),

- the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STEW 78),

- the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72),

- the International Convention on Tonnage Measurement of Ships, 1969 and

- the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147),

together with the Protocols and amendments to these Conventions and related codes of mandatory status, in force at the date of adoption of this Directive.

2. MOU means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, as it stands at the date of adoption of this Directive.

3. Ship means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State.

4. Off-shore installation means a fixed or floating platform operating on or over the continental shelf of a Member State.

5. Inspector means a public-sector employee or other person, duly authorized by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority.

6. Inspection means a visit on board a ship in order to check both the validity of the relevant certificates and other documents and the condition of the ship, its equipment and crew, as well as the living and working conditions of the crew.

7. More detailed inspection means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article 6 (3), to an in-depth inspection covering the ship's construction, equipment, manning, living and working conditions and compliance with on-board operational procedures.

8. Expanded inspection means an inspection as specified in Article 7.

9. Detention means the formal prohibition of a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy.

10. Stoppage of an operation means a formal prohibition of a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous.

Article 3 - Scope

1. This Directive applies to any ship and its crew:

- calling at a port of a Member State or at an off-shore installation, or

- anchored off such a port or such an installation.

Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant international Conventions.

2. In case of ships of a gross tonnage below 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In their application of this paragraph, Member States shall be guided by Annex 1 to the MOU.

3. When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment given to such ship and its crew is no more favourable than that given to a ship flying the flag of a State which is a party to that Convention.

4. Fishing vessels, ships of war, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.

Article 4 - Inspection body

Member States shall maintain appropriate national maritime administrations, hereinafter called competent authorities, for the inspection of ships and shall take whatever measures are appropriate to ensure that their competent authorities perform their duties as laid down in this Directive.

Article 5 - Inspection commitments

1. The competent authority of each Member Sate shall carry out an annual total number of inspections corresponding to at least 25 % of the number of individual ships which entered its ports during a representative calendar year.

2. In selecting ships for inspection the competent authority shall give priority to the ships referred to in Annex I.

3. Member States shall refrain from inspecting ships which have been inspected by any Member State within the previous six months, provided that:

- the ship is not listed in Annex I, and

- no deficiencies have been reported, following a previous inspection, and

- no clear grounds exist for carrying out an inspection.

4. The provisions of paragraph 3 shall not apply to any of the operational controls specifically provided for in the Conventions.

5. The Member States and the Commission shall cooperate in seeking to develop priorities and practices which will enable ships likely to be defective to be targeted more effectively.

Any consequent amendment of this Article, except to the figure of 25 % in paragraph 1, shall be made under the provisions of Article 19.

Article 6 - Inspection procedure

1. The competent authority shall ensure that the inspector shall as a minimum:

(a) check the certificates and documents listed in Annex II, to the extent applicable;

(b) satisfy himself of the overall condition of the ship, including the engine room and accommodation and including hygienic conditions.

2. The inspector may examine all relevant certificates and documents, other than those listed in Annex II, which are required to be carried on board in accordance with the Conventions.

3. Whenever there are clear grounds for believing, after the inspection referred to in paragraphs 1 and 2, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention, a more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements.

'Clear grounds' exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew.

Examples of clear grounds are set out in Annex III.

4. The relevant procedures and guidelines for the control of ships specified in Annex IV shall also be observed.

Article 7 - Expanded inspection of certain ships

1. Where there are clear grounds for a detailed inspection of a ship belonging to the categories listed in Annex V, Member States shall ensure that an expanded inspection is carried out.

2. Annex V, section B, contains non-mandatory guidelines for expanded inspection.

3. The ships referred to in paragraph 1 shall be subject to an expanded inspection by any of the competent authorities of the Member States only once during a period of 12 months. However, these ships may be subject to the inspection provided for in Article 6 (1) and (2).

4. In the case of passenger ships operating on a regular schedule in or out of a port in a Member State, an expanded inspection of each ship shall be carried out by the competent authority of that Member State. When a passenger ship operates such a schedule between ports in Member States, one of the States between which the ship is operating shall undertake the expanded inspection.

Article 8 - Report of inspection to the master

1. On completion of an inspection, a more detailed inspection, or an expanded inspection, the master of the ship shall be provided by the inspector with a document in the form specified in Annex 3 to the MOU, giving the results of the inspection and details of any decisions taken by the inspector, and of corrective action to be taken by the master, owner or operator.

2. In the case of deficiencies warranting the detention of a ship, the document to be given to the master in accordance with paragraph 1 shall include information about the future publication of the detention order in accordance with the provisions of this Directive.

Article 9 - Rectification and detention

1. The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection referred to in Articles 6 and 7 are or will be rectified in accordance with the Conventions.

2. In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained, or the operation in the course of which the deficiencies have been revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

3. When exercising his professional judgment as to whether or not a ship should be detained, the inspector shall apply the criteria set out in Annex VI.

4. In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties have taken the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

5. In the event that the inspections referred to in Articles 6 and 7 give rise to detention, the competent authority shall immediately inform, in writing, the administration of the State whose flag the ship is entitled to fly (hereinafter called flag administration) or the Consul or, in his absence, the nearest diplomatic representative of the State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognized organizations responsible for the issue of the ship's certificates shall also be notified where relevant.

6. The provisions of this Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

7. When exercising port State control under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.

Article 10 - Right of appeal

1. The owner or the operator of a ship or his representative in the Member State shall have a right of appeal against a detention decision taken by the competent authority. An appeal shall not cause the detention to be suspended.

2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.

3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal.

Article 11 - Follow-up to inspections and detention

1. Where deficiencies as referred to in Article 9 (2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed to the nearest appropriate repair yard available, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

2. In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article 9 (5) and any other authority as appropriate of all the conditions for the voyage.

3. The notification of the parties referred to in paragraph 2 shall be in accordance with Annex 2 to the MOU.

The competent authority of a Member State receiving such notification shall inform the notifying authority of the action taken.

4. Member States shall take measures to ensure that ships referred to in paragraph 1 which proceed to sea:

(i) without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or

(ii) which refuse to comply with the applicable requirements of the Conventions by not calling into the indicated repair yard;

shall be refused access to any port within the Community, until the owner or operator has provided evidence to the satisfaction of the competent authority of the Member State where the ship was found defective that the ship fully complies with all applicable requirements of the Conventions.

5. In the circumstances referred to in paragraph 4 (i), the competent authority of the Member State where the ship was found defective shall immediately alert the competent authorities of all the other Member States.

In the circumstances referred to in paragraph 4 (ii), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States.

Before denying entry, the Member State may request consultations with the flag administration of the ship concerned.

6. Notwithstanding the provisions of paragraph 4, access to a specific port may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, or to reduce or minimize the risk of pollution or to have deficiencies rectified, provided adequate measures to the satisfaction of the competent authority of such Member State have been implemented by the owner, the operator or the master of the ship to ensure safe entry.

Article 12 - Professional profile of inspectors

1. The inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex VII.

2. When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise.

3. The inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by or undertake work on behalf of non-governmental organizations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships.

4. Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with the national legislation, indicating that the inspector is authorized to carry out inspections.

A common model for such an identity card shall be established in accordance with the procedure in Article 19.

Article 13 - Reports from pilots and port authorities

1. Pilots of Member States, engaged in berthing or unberthing ships or engaged on ships bound for a port within a Member State, shall immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are deficiencies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

2. If port authorities, when exercising their normal duties, learn that a ship within their port has deficiencies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority shall immediately inform the competent authority of the port State concerned.

Article 14 - Cooperation

1. Each Member State shall make provision for cooperation between its competent authority, its port authorities and other relevant authorities or commercial organizations to ensure that its competent authority can obtain all relevant information on ships calling at its ports.

2. Member States shall maintain provisions for the exchange of information and cooperation between their competent authority and the competent authorities of all other Member States and maintain the established operational link between their competent authority, the Commission and the Sirenac E information system set up in St Malo, France.

3. The information referred to in paragraph 2 shall be that specified in Annex 4 to the MOU, and that required to comply with Article 15 of this Directive.

Article 15 - Publication of detentions

Each competent authority shall as a minimum publish quarterly information concerning ships detained during the previous three-month period and which have been detained more than once during the past 24 months. The information published shall include the following:

- name of the ship,

- name of the shipowner or the operator of the ship,

- IMO number,

- flag State,

- the classification society, where relevant, and, if applicable, any other Party which has issued certificates to such ship in accordance with the Conventions on behalf of the flag State,

- reason for detention,

- port and date of detention.

Article 16 - Reimbursement of costs

1. Should the inspections referred to in Articles 6 and 7 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State.

2. All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Article 11 (4) shall be charged to the owner or operator of the ship.

3. The detention shall not be lifted until full payment has been made or a sufficient guarantee has been given for the reimbursement of the costs.

Article 17 - Data to monitor implementation

1. Member States shall supply the following information to the Commission and the MOU Secretariat:

- number of inspectors working on their behalf on port State inspection in accordance with this Directive. For authorities where inspectors perform port-State inspections on a part-time basis only, the total must be converted into a number of full-time employed inspectors,

- number of individual ships entering their ports in a representative calendar year within the previous five-year period.

2. The information listed in paragraph 1 shall be forwarded within three months following the entry into force of this Directive and thereafter by 1 October once every three calendar years.

Article 18 - Regulatory Committee

The Commission shall be assisted by the Committee set up pursuant to Article 12 of Directive 93/75/EEC in accordance with the procedure laid down in that Article.

Article 19 - Amendment procedure

This Directive may be amended in accordance with the procedure laid down in Article 18, in order to:

(a) adapt the inspection and publication obligations of Member States mentioned in Article 5 (except the figure of 25 % referred to in paragraph 1 thereof), and in Articles 6, 7 and 15 on the basis of the experience gained from implementation of this Directive and taking into account developments in the MOU;

(b) adapt the Annexes in order to take into account amendments which have entered into force to the Conventions, Protocols, codes and resolutions of relevant international organizations and to the MOU.

Article 20 - Implementation

1. Member States shall adopt the laws, regulations and administrative provisions necessary to implement this Directive not later than 30 June 1996 and shall forthwith inform the Commission thereof.

2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.

3. Member States shall communicate to the Commission the text of the provisions of national law which they have adopted in the field governed by this Directive.

Article 21 -

This Directive shall enter into force on the 20th day following that of its publication.

Article 22 -

This Directive is addressed to the Member States.