Port State Control is Necessary or Not ?

Port State Control is Necessary or Not ?

ContentsI.Definition2II.History2III.Detention of Ship Under Port State Control2III.1 Contract being discharged under detention3IV.Contract discharged by frustration3IV.1 Discharged by frustration for being out of control3A voyage contract can be discharged by frustration if the ship is beyond the control of the party involved in the contract.3IV.2 Discharged by frustration for extremely long time delay3V.Self-induced detention cannot discharge the contract through frustration4V.1. Criteria for detaining a ship by PSCO4VI.Short period of detention cannot discharge the contract through frustration4VII.The Port State Control officer Task in Indonesia5VIII.Basic Port state control officer role in Public Ports.6IX.Port State Control Officer Role In Fishing Port7X.Conclusion9

Port State Control is Necessarry or Not ?

I. DefinitionPort State Control(PSC) is the inspection of foreign ships in other national ports by PSC officers (inspectors) for the purpose of verifying that the competency of the master and officers on board, and the condition of the ship and its equipment comply with the requirements of international conventions (e.g.SOLAS,MARPOL,STCW, etc.) and that the vessel is manned and operated in compliance with applicable international law.II. HistoryIn 1978, a number of European countries agreed in The Hague on a memorandum that agreed to audit whether the labour conditions on board vessels were in accordance with the rules of theILO. After theAmoco Cadizsank that year, it was decided to also audit on safety and pollution. To this end, in 1982 theParis Memorandum of Understanding(Paris MoU) was agreed upon, establishing Port State Control, nowadays 26 European countries and Canada. In practice, this was a reaction to the failure of the flag states - especiallyflags of conveniencethat have delegated their task toclassification societies- to comply with their survey and certification duties.Following on the foundation built by the Paris MOU, several other regional MOUs have been signed, Including the Tokyo MOU (Pacific Ocean),Acuerdo Latino or Acuerdo de Via del Mar (South and Central America),the Caribbean MOU,the Mediterranean MOU,the Indian Ocean MOU,the Abuja MOU (West and Central Atlantic Africa), the Black Sea MOU,and the Riyadh MOU (Persian Gulf).TheUnited States Coast Guardverifies that all foreign vessels operating inUnited Stateswaters are in substantial compliance with international conventions, as well as all applicable U.S. laws, regulations and treaties. The U.S. is not a member of any Port State Control MOU.III. Detention of Ship Under Port State ControlUnder Port State Control (PSC), inspection of ships in port would be taken by Port State Control Officer (PSCO). Annual report of Paris MoU reported a total of 74,713 deficiencies were recorded during port state control inspections in 2007. These deficiencies resulted in 1,250 detentions in the same year.Detention of the ship is the last course of action that a PSCO would take upon finding deficiencies aboard the vessel.Courses of action a PSCO may impose on a ship with deficiencies (in order of ascending gravity). 1. Deficiencies can be rectified within 14 days for minor infractions2. Under specific conditions, deficiencies can be rectified when the ship arrives at the next port3. Deficiencies must be rectified before the ship can depart the port;4. Detention of the shipIII.1 Contract being discharged under detentionShips taking visit to port are usually under a certain kind of contract, chartered or responsible for carrying goods as a carrier. Detention means the ship and the cargo would not be able to perform the contract according to what is agreed. Ships under detention cannot continue the voyage and arrive at the destination port as stated in the contract in the specific time assigned in the contract.As a result of detention the contract is discharged, and it may or may not be discharged by frustrationIV. Contract discharged by frustrationA contract discharged by frustration is well defined inTaylor v Caldwell.where the contract between Taylor and Caldwell is held frustrated. It is because the concert hall which is hired by Taylor from Caldwell is destroyed without fault of either partyand the contract is therefore discharged by frustration.IV.1 Discharged by frustration for being out of controlA voyage contract can be discharged by frustration if the ship is beyond the control of the party involved in the contract.According toTexas Company v. Hogarth Shipping Corp,a voyage charter is carrying out in 1915 while the British government take control of the vessel while the vessel is in British waters. This requisition resulted in another vessel being hired to perform the contract. The court held that the original contract is being frustrated as the original vessel is beyond the control of the party involved.The case demonstrated the contract can be discharged by frustration while the control of the subject vessel is under control of a third party which has no relation with the contracted parties.IV.2 Discharged by frustration for extremely long time delay

The contract can be discharged by frustration if the detention lasts long enough for the frustration doctrine to be invoked. InJackson v Union Marine Insurance Co.the contract is held frustrated. When the vessel went aground and require a time of 8 months to repair the ship, the delay is too long, the cargo can be shipped by another charter in a much shorter time. The length of the delay is long enough to provoked the frustration doctrine.

V. Self-induced detention cannot discharge the contract through frustration

The contract cannot be discharged by frustration if it is caused byself-induced detention.V.1. Criteria for detaining a ship by PSCOThe main criteria for detention is that the ship is deemed unsafe to proceed to sea and that the deficiencies on a ship are considered serious by the inspector. These deficiencies must be rectified before the ship may sail again. In the annual report of Paris MOU,it stated that the major deficiencies are:1. Certification of crew2. Safety3. Maritime Security4. Marine Pollution and Environment5. Working and Living Condition6. Operational7. ManagementThese deficiencies are the most common concern of a PSCO. When these deficiencies are clearly hazardous to safety, health, or the environment, the PSCO would require the hazard to be rectified before the ship can sail or detain the vessel or even issue a formal prohibition of the ship to operate. As these deficiencies are self-induced by the ship operator or the ship owner, detention under PSC for the reasons listed above is not able to reach a frustration to discharge the contract on the vessel.VI. Short period of detention cannot discharge the contract through frustrationThe contract cannot be discharged by frustration if the time under detention is not long enough to provoked the frustration doctrine. PSC requirement upon detaining a shipThe PSCrequire a ship being detained to remedy the deficiencies which caused the detention. If the deficiencies cannot be remedied in the port of inspection, the port state would allow the ship to proceed to another port under special condition. The ship become free of detention only when all the fee induced by the inspection and detention is paid by the ship-owner. No party wants a long detentionRationally, both the port state and the ship-owner do not want the ship to be detained for a long time. For the port state, the hazard of the ship might affect the condition of the port, and the ship-owner understand the vessel can only make money when it is sailing. Neither party would have the intention to keep the vessel being detained for an extremely long period of time. Therefore, the time of detention is normally not long enough to provoke the detention doctrine to discharge a contract.VII. The Port State Control officer Task in Indonesia In conclusion, a voyage contract can be frustrated when: The vessel is beyond the control of the parties in the contract The time delayed is long enough to provoke the frustration doctrine Under PSC, detention is mostly caused by self-induced deficiencies which is neither unforeseeable and unexpected, and the time for detention is not likely being long enough to provoke the frustration doctrine. Therefore, detention of a ship by PSC cannot discharge a voyage contract by frustrationPort state control officer task is not easy. He must be able to ensure that the ship is about to leave the harbor worthy to depart. Sea worhty relating to the safety of passengers and goods during a boat trip. Port state control officer is the official holder of the safety function, said Heru Prasetyo, Head of Legal and Foreign Cooperation, Ministry of Transportation. Ship safety in marine transportation dictionaries are circumstances that ships meet the requirements of material, construction, building, machinery and electrification, as well as the stability of the arrangement of radio and electronic equipment including boats. Continually, the safety of the vessel must be inspected by the harbor master before sailing. Port state control officer professional duties, among others mentioned in PP 81 of 2000 on navigating and PP 69 of 2001 on the port. Both PP is implementing regulations of Law No. 21 of 1992 on Shipping. Under article 40 of the latter wet, every ship that enters the port monitored by the harbormaster. If the ship sailing, the ship must first obtain Sailing Permit from the harbormaster. To issue the Permit, PSC should check Sea worhty ship.In practice, the implementation of transportation safety in the waters have not been implemented optimally. Heru admit it is caused by weak law enforcement by the harbormaster harbormaster and inadequate qualifications. In the case of Levina I, for example, revealed that the number of passengers and vehicles carrying dimanifest not the same as truth. After all, PSC still pass the ship departed. In addition, the safety of the ship is also influenced by shipping lanes. Tests done Port state control officer certainly different between the grooves ship voyage along the coast or out to sea alone. But unfortunately, until now the Government has yet to implement the mandate to form the PP Shipping Law Shipping Channel. According to Heru, this poses a potential dispute between the Department of Transportation to the Department of Marine and Fisheries.Another effort to support the safety of transport in the waters is through the National Transportation Safety Committee (NTSC) and Search and Rescue (SAR). Both are non-structural institution under the Department of Transportation, but NTSC is more often the target of public invective when an accident recurring. The independence of the NTSC One of the issues raised during these is independence. NTSC is a non-structural in the Department of Transportation and is responsible to the Minister of Transportation. Established by Presidential Decree No. 105 of 1999, NTSC task is investigation and research to identify possible deviations towards transport safety. The emphasis of the investigation is on finding the cause of the accident so that in the future the same cause accident does not happen again. NTSC final report must be given to the Minister of Transportation as a recommendation. When participants Tragedy Transport and Role of Insurance, Wednesday (20/6) and asked is there independence NTSC, Zoelkarnain Oeyoeb, Regulatory Affairs Expert Staff of the Minister of Transportation and the Transportation Safety NTSC fully independent states. Nothing can affect the results of the investigation NTSC, said Zoelkarnain. According to him, NTSC status as a non-structural considered sufficient as collateral. Agrees his colleague, Joseph refutes NTSC is not independent because it is under the department of transportation. NTSC can still be independent and to be independent, he cried. Tells of independence NTSC, Joseph recalled since the time of Prof. Oetarjo alone, often set off an investigation NTSC without charge a dime from the government. Therefore, Joseph assured NTSC still be independent. Although considered to be the chairman for life by personnel familiar with the NTSC and ranks of officers from the Ministry of Transportation, Prof. Diran Oetarjo not necessarily softened. Former Chairman of the NTSC is precisely the opposite answer, No! NTSC independence of the investigation stopped after the report is completed, he said. A recognition that the chairman NTSC enviable next.VIII. Basic Port state control officer role in Public Ports.As we have seen together that the harbormaster is a government official at the port who was appointed by the minister and has the highest authority to execute and to supervise compliance with the provisions of the legislation to ensure the safety and security of shipping. In accordance with its function Port state control officer duties include overseeing sea worthy ship safety, security, and orderliness at the port. It is appropriate that this harbormaster is an institution that has an important role in the implementation of the fishing port functions. See its function as a watchdog in ensuring the safety and security of shipping. Borne duty was large enough that one of them will be held accountable in the event of shipwreck at sea (human error / act of God). Besides a harbor master must be able to be assertive, Brain has a broad knowledge and understanding of each shipping rules so that in every step taken by the existing regulations.As a maritime country which has an area of sea than land, port state control officer very important presence in the port. Port state control officer professional duties has also been enshrined in Law No. 17 Year 2008 on the voyage, as well as PP 61 Year 2009 concerning Port. However this has not been implemented optimally. Several factors namely: the harbormaster who have qualified in the sense of not yet fully mastered Bandar orderly regulation, law enforcement is not earnest.According to Law number 17 of 2008 Port state control officer perform safety functions and that includes shipping security, implementation, monitoring and enforcement in the field of transport in the waters, port, maritime and environmental protection in the port. In carrying out the functions of safety and security as referred to in Article 207 paragraph (1) the harbor master has the task:A. oversee sea worthy vessel, safety, security and order in the port;B. oversee orderly ship traffic in the waters of the harbor and navigation channel;C. supervise activities over the unloading in the port waters;D. supervise the activities of salvage and underwater works;E. oversees the activities of the delay of the vessel;F. oversee scouting;G. supervise the loading and unloading of dangerous goods and hazardous materials and toxic waste;H. supervise refueling;I. supervise the order of embarkation and disembarkation of passengers;J. supervising dredging and reclamation;K. oversees the activities of construction of port facilities;L. carry out search and rescue assistance;M. lead pollution prevention andN. fire fighting in ports; andO. oversee the implementation of the protection of the maritime environment.IX. Port State Control Officer Role In Fishing PortIndonesia as a country fully maratim run sovereignty marine sector policy. Including in the case, the functioning shahbandar placed in the fishing port. But the existence of this harbormaster has its own uniqueness. Because the world of international shipping in the port only recognizes Port state control officer general.The tasks harbormaster in the fishing port, according to Law 45 of 2009 Article 42, namely: Issue of Approval of Sailing Set the arrival and departure of Fishing Vessels Check the reset completeness of document fishing boat. Technical and nautica double check and inspect fishing vessels fishing gear, fishing and stone tools. examine and certify the employment agreement sea. Check the log book of arrest and transport of fish. Adjusting traffic navigation and fishing boats in the fishing port. Oversee scouting. Supervise refueling. Supervise activities of construction of the facility Carry out search and rescue assistance. Lead pollution prevention and fire fighting in the fishing port. Oversee deploy maritime environmental protection. Checking compliance monitoring fishing boats. Report Publishes Letter Fishing Vessel Arrivals and Departures, and Checking certificate of the fish.He also explained that the removal of personal harbormaster in the fishing port under the authority of the Ministry of transportation. So that the Ministry of Transport (MoU) still provide supervision on understanding aspects of safety of navigation. But technically administration and operations already under the Ministry of Maritime Affairs and Fisheries (MMAF). In an effort to realize the vision of the Ministry of Maritime Affairs and Fisheries (MMAF) to make Indonesia as the country producing the largest marine and fisheries products in 2015, in 2011 the CTF and the Ministry of Transportation (Ministry of Transportation) signed a Memorandum of Understanding on Development of Marine Resources and Fisheries. Joint Agreement signed by the Minister of Marine and Fisheries, Fadel Muhammad and Minister of Transportation, Freddy aims to optimize and enhance the human resource capabilities of marine and fisheries as well as the exchange of data and information especially in the field to Port state control officer. Fishing port that will be assigned in various fishing ports in Indonesia. With the harbormaster in the fishing port, the ship owners, especially fishing boats do not have to bother anymore to take care of all matters relating to the administration before sailing for fishing. But it remains to be pocketed SLO and SIB. The difference, if former owner of the vessel must be to Fisheries and Adpel or Port state control officer to get two letters, it is now quite simply to the fishing port, because the fishing port has been given authority to publish SIB, because now we've got harbormaster himself.Port state control officer presence in the fishing port is a very important thing to remember its duties and functions. In some cases that occurred in the region, the absence Port state control officer in the fishing port often cause delays in the operational activities of fishing vessels. Fishermen and businesses are also often not able to take care of Permit Sailing / Sailing Approval Letter (SIB / SPB) when the letter is one of the obligations that must be owned by a fishing vessel before conducting catching or transporting fish. Appointment of a harbormaster fisheries is also an effort to facilitate fishermen and fisheries entrepreneurs to sell their catch abroad. That is because one of the duties and authority of a harbormaster as stipulated in Law No. 45 Year 2009. On Fishing was Examine the log book catching and transporting fish. Port state control officer existence in the fishing port in addition be responsible for issuing mailing administration for fishing vessels and fish transport, also plays a role in maintaining the safety of shipping and implement the provisions related to responsible fisheries management. Thus Port state control officer Fishing Port indirectly also have an important role in preventing and combating / tackle Illegal Unreported and Unregulated (IUU) Fishing. But now the sheer number of fishing ports Port state control officer very less. Ideally Ministry of Maritime Affairs and Fisheries (MMAF) has 816 harbormaster in the fishing port. In 2011 was inducted 48 people Port state control officer fishing port that will be assigned in various fishing ports in Indonesia by Mr. Freddy as transport minister. So the total number of existing harbormaster 96 people or only about 11.76% only. Expected future Port state control officer number of fishing ports can be added again given the role that is vital for the operation of fishing activities. Not only adds in quantity, but the quality of human resources that become harbormaster later to note, too.

X. Conclusion

From the above explanation, it was concluded that the PSC is indispensable in Indonesia. because its contribute very important in world shipbuilding and marine transportation. However, its performance is still very need to be addressed, because there are many cases that hit the PSC itself. for the advancement of Indonesian maritime world needs the cooperation of many parties to improve and enhance the performance of PSC Indonesia, due to good supervision will reduce the amount of fraud and accidents that sometimes still occur Indonesian maritime business world.So, The Port State Control is Necessary.

References1. "Memorandum of Understanding on Port State Control in the Asia-Pacific Region", as amended 20 November 2008. Available from:http://www.tokyo-mou.org/2. "Latin American Agreement on Port State Control of Vessels (Via del Mar, 1992)", as amended 2008. Available from:http://www.acuerdolatino.int.ar/3. "Caribbean Memorandum of Understanding on Port State Control", 1996. Available from:http://www.caribbeanmou.org4. "Memorandum of Understanding on Port State Control in the Mediterranean Region", as amended 27 November 2006. Available from:http://www.medmou.org5. "Indian Ocean Memorandum of Understanding on Port State Control", as amended October 2003. Available from:http://www.iomou.org.6. "Memorandum of Understanding on Port State Control for the West & Central African Region", 30 October 1998. Available from:http://www.abujamou.org7. "Black Sea Memorandum of Understanding on Port State Control", as amended 1 January 2006. Available from:http://www.bsmou.org8. "Riyadh Memorandum of Understanding on Port State Control in the Gulf Region", June 2005. Available from:http://www.riyadhmou.org/9. Paris Mou (2007), "Deficiencies per major category", Annual Report 2007 - Paris MoU on Port State Control, Month Date, pp.22-23.10. zayir, Z.O. (2004), "Practical Implication of Port State Control: The Contractual Effect of Port State Control Detentions". In Mitropoulos, E.E. Port State Control, 2nd ed, LLP, London, pp.509, 520-52111. Taylor v Caldwell [1863] 122 ER 30912. Owen, T. (2009), "Contract Law Concept", [LGT4016] Maritime Law Lecture Note, p.61.13. Texas Company v. Hogarth Shipping Corp (1921) 256 U.S. 61914. Jackson v Union Marine Insurance Co (1874) L.R. 10 C.P. 12515. Paris Mou (2009), The Paris Memorandum of Understanding on Port State Control. Deficiencies, detentions and rectifications. Available from:http://www.parismou.org/ParisMOU/Organisation/About+Us/Detention/xp/menu.3961/default.aspx[Accessed: March 11, 2009].

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