ISPS and ISM Codes – did they prove the expectations of their drafters or are another time- and paper-

consuming 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 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 only to certain

types of vessels meaning that the drafters have neglected the fact that human life has the same value

everywhere.

The aim of this research will be directed 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 be approached not just by giving directives to

the crews and ship owners, but 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 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.

1

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 was 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.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 enemy-

states 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.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 (accessed on 02.02.2007).3 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.org/issues/July-August-2005/feature_burgess_julaug05.msp [accessed on 03.03.2007].7 Jones J, ‘Background to Pirates Infest the Roman Seas by Plutarch’, available on http://courses.wcupa.edu/jones/his101%5Cweb%5C09pirate.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.com/content/view/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).

2

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 history. Following

the Titanic disaster, it was first introduced in 1914. The second version was adopted in 1929, the third –

1948, and the fourth – 1960. 12 The 1960 Convention was 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 known 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 so-

called 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 automatic 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 1993.19

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.com/unatlas/issues/safety_at_sea/solas_convention/solas.htm [accessed on 03.03.2007]13 Ibid.14 Ibid.15 Ibid16 Ch IV-Part A- Reg 1.1 of SOLAS’74.17 Ch IV-Part A- Reg 1.5.5.18 ‘Shipping Emergencies – Search and Rescue’, available on http://www.oceansatlas.org/unatlas/issues/emergencies/gmdss_sar/searchrescue.htm#_Toc515946377 [accessed on 03.03.2007].19 Ch IV-Part A-Reg 1.4.

3

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 only 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 ship-

to-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 obliges the 142 contracting governments to extradite to a third

country or prosecute the alleged offenders.24 However, it seems that SUA did not have 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/prc/piracyreport.php [accessed on 04.03.2007]21 Talley W and Rule E, ‘Piracy in shipping’, available on http://bpa.odu.edu/port/research/ talley . piracy .doc [accessed on 04.03.2007]

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/theukgovernmentsstrategyfort4906 [accessed on 05.03.2007]; see also ‘Piracy: Government Response to the 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’ – presentation before the PROPELLER CLUB (USA), Port of Chicago’, available on http://www.cargolaw.com/presentations_pirates.html [accessed on 05.03.2007].24 http://www.imo.org/Conventions/mainframe.asp?topic_id=259&doc_id=686 [accessed on 05.03.2007].25 Ibid (n 21).

4

4. THE INTRODUCTION OF THE ISM CODE AND ITS ROLE IN INCREASING THE

AWARENESS AMONG SEAFARERS.

Following the capsize of the 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.26 The company was described by the

examiner as being ‘infected with the disease of sloppiness at all levels.’27 As a result the Secretary-

General 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 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.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 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 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/blastDataOnly.asp/data_id%3D6698/623rev3.pdf35 Reg 7.36 Reg 7. Interpretatation and application of Reg 7 is available on http://home.pacific.net.sg/~makhdoom/ismcode.html

[accessed on 01.03.2007]; See also n 103 (supra). 37 Rodriguez J (n 26).

5

This restriction puts into question the same arguments as with Chapter 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 because each and every member of the

crew learns what his duties during an emergency are, or that the 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 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 of 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” requirement versus the

38 Nikolic N, ‘Waterpressure’, available on http://www.marine-society.org.uk/Files/12-14_Sea%20Stress.pdf [accessed on 08.03.2007].

6

“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 of the SOLAS

Convention, and the compulsory number 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 go 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 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 the inevitable accident might 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 with procedures relating to the safety of the ship.40 Longborough Sleep Research Centre Report available on http://www.lboro.ac.uk/departments/hu/groups/sleep/applied.htm [accessed on 08.03.2007]

7

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 the increase of the effect of 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.41 In November 2001, at its 22nd session

IMO called for a thorough review of 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 on 1 July 2004. As a result, the Code was

incorporated in a new chapter 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 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 above-

mentioned vessels and also vessels arriving and departing 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,47the responsibilities of the

ship-owners/ operators,48 the responsibilities of the ship crews,49 and the responsibilities of the port

facilities.50

41 Mitropoulos E, ‘The International Ship and Port Security Facility Security Code’ (2005) 76 LNG Review 76.42 At 77.43 (A) - 3.1, ISPS Code.44 (A) - 3.1.2 and 3.2.45 http://www.imo.org/Newsroom/mainframe.asp?topic_id=897#who [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/sdtetlb20041_en.pdf [accessed on 11.03.2007].47 (A) - 4.48 (A) - 6.49 (A) - 7.50 (A) - 14 and 18.

8

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 3 danger, a

contracting government is obliged to convey 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 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

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.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. 52 (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.

9

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.68 SSP

must identify the Master’s authority and responsibility in relation to any safety and 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, course, 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.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) – 8.1.63 (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.com/ssas/ssas_ship_security_alert_system_regulations.htm [accessed on 13.03.2007].

10

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 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 whereabouts must be controlled at all times and not be let

to pass through a restricted area unless supervised. Consider 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 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 ulterior 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) – 9.11.77 (A) – 15.78 (B) – 15.

11

likelihood of their occurrence; identification of the weaknesses 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 be wrong to consider PFSO as a

manager of a port with a highly restricted access.

In order all the requirements of the Code to be met, the contracting 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 entry 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) – 15.80 (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/Newsroom/mainframe.asp?topic_id=897#whoimplement [accessed on 15.03.2007].

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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.92

6. WILL THE ISPS CODE AND THE EXISTING 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 authorities 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, convention93 even though meeting the

basic requirements for identity documents, is outdated and cannot 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 No 185. Two member states had to ratify it before it came into

87 (A) – 1.3.1.88 (A) – 5.2.89 Memorandum of the World Shipping Council from 29.06.2004, available on http://www.evergreen-marine.com/tbn1/html/ISPS_CodeFAQs.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.

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force. These were France and 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.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 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. 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 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’.98 ILO press release No ILO/03/25 – ‘ILO Conference opens talks on new seafarer identity cards: Initiative 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].

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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 greater

part of the crew is unlicensed. But the greater part of pirate attacks is caused mainly by the use of small

and maneuverable 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 acquires a target on the radar which 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 part of the attacks occur night

time102 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 and

use them against 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 - 06.11.2002.102 Ibid.103 Shipping companies such as NAVIBUL, STAMCO and OCEAN 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/includes/blastDataOnly.asp/data_id%3D6698/623rev3.pdf [accessed on 18.03.2007].105 Nikolic N (n 38).

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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 about 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 any

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).107 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/publications/commentaries2005.html [accessed on 17.03.2007].111 Ibid.

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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 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 condition 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 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 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.113Chandrasekaran, ‘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 in Southeast Asia: Between a rock and a hard place?’, BISA Conference at 7, available on www. bisa .ac.uk/2006/pps/liss.pdf [accessed 20.03.2007].115 These are the ISPS Code, the ISM Code, Ch IV & V of SOLAS.

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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).

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