The execution of ISM principles; as well as the application of control by PSC, eventually come down to the same result. Thus, whether it is regarding safety of life, navigation, etc or about prevention of marine pollution, both the above stated tools give favourable results. PSC inspection may be defined as ‘an inspection in foreign waters confirming the compliance with the requirements of international conventions’, caused by the Administration of Port State. The ISM on the other hand may be understood as ‘an instrument which allows continuous monitoring of activities on board in compliance of rules.
Origin and Objective
In 1978, a number of European countries in Hague signed a memorandum that agreed to audit whether the labour conditions on board vessels were in accordance with the rules of the ILO. After the Amoco Cadiz sank that year, it was decided to also audit on safety and pollution. In 1982 the Paris Memorandum of Understanding (Paris MoU) was agreed upon, establishing Port State Control. Obviously, this was a reaction to the failure of the Flag States. The flags of convenience are often seen paying required attention in this respect. The classification societies working on behalf of Administrations to comply with their survey and certification duties may be seen operating with extra softness. Favourable treatment to own ships by flag state and genuine non availability of own ships were the other factors. Thus, Port State Control (PSC) inspection became the inspection of foreign ships in other 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. PSC is often referred to as, a tool to identify substandard ships.
The International Safety Management (ISM) Code’s origins go back to the late 1980s, when there was mounting concern about poor management standards in shipping. A leading example being a confusion over the bow doors of HFE. Investigations into accidents revealed major errors on the part of management and apparently no learning of past lessons from various accidents. Cause of several accident was attributed to human error and thus, to lack of proper management. In 1987, the IMO Assembly adopted resolution A.596(15), which called upon the Maritime Safety Committee to develop guidelines concerning shipboard and shore-based management to ensure the safe operation of Ro-Ro passenger ferries.
Some of the IMO works, post accidents are incredible. The ISM Code was evolved through the development of the Guidelines on Management for the Safe Operation of Ships and for Pollution Prevention, adopted in 1989 by the IMO Assembly vide resolution A.647(16), and the Guidelines adopted two years later vide resolution A.680(17). It was revised to its current form, the International Management Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code), which was adopted in 1993 by resolution A.741 (18). Objectives of the ISM were to have international standard for the safe management and operation of ships and for pollution prevention.
Legal Implication
SOLAS Regulation chapter I/11 is ‘Maintenance of condition after survey’. It states that: The condition of the ship and its equipment shall be maintained to conform with the provisions of the present regulations to ensure that the ship in all respects will remain fit to proceed to sea without danger to the ship or persons onboard. The ship’s appearance must reflect the status of the certificates she possesses and their compliance. Necessary maintenance of the ship to keep its standards is essential or else the requirements of SOLAS Reg. I/11 will not be complied with. Lack of maintenance and hence deterioration may be considered clear grounds for the PSCO on the basis of the provisions of SOLAS Regulation I/11, for more detailed inspections or detention.
Original authority regarding a PSC inspection comes from UNCLOS-82, which authorises a State to protect sovereignty over its coast and to make rules in respect of safety, prevention of pollution, etc. Obviously a PSC officer must be allowed to board a foreign ship. The International instruments which authorise a PSC are: SOLAS (Chapter I-Regulation 19, Control; Chapter IX- Regulation 6, Verification and Control; Chapter XI-1; Regulation 4, Port State Control on Operational Requirements; Chapter XI-2-Regulation 9, Control and compliance measures). MARPOL, (Article 5, Certificate and Special Rules on Inspection of Ships; Article 6, Detection of Violations and Enforcement of the Convention; Annex I – Regulation 8A, Port State Control on Operational Requirements; Annex II- Regulation 15, Port State Control on Operational Requirements; Annex III- Regulation 8, Port State Control on Operational Requirements; Annex V- Regulation 8, Port State Control on Operational Requirements). STCW (Article X-Control-Regulation I/4, Control Procedures). INTERNATIONAL LOAD LINE, COLLREG, TONNAGE (Article 12, Inspection), ISM, ILO 147, BCH CODE, IGC CODE, IBC CODE are the instruments which directly or impliedly make similar references. ISM Code is positively legalised by its inclusion in SOLAS.
The initial IMO Resolutions in respect of PSC are as follows:
- IMO Resolution A.787(19):Procedures for Port State Control.
- IMO Resolution A.890(21): Principles of Safe Manning URGES Governments.
The International Safety Management (ISM) Code came into force in two implementation phases: For passenger ships, tankers, bulk carriers and cargo high speed craft over 500 gross tonnage on 1st July, 1998 and for other cargo ships and mobile offshore drilling units over 500 gross tonnage on 1st July, 2002. ISM Code is embraced as a positive step towards ensuring a safety culture, welcome by various components of marine activity of which tangible positive benefits are evident.
The different memorandums and the countries thereunder are as follows:
Paris Mou: Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Great Britain, Ireland, Iceland, Italy, Latvia, Lithuania, Malta, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovenia, Sweden, Spain.
Tokyo Mou: Australia, Canada, Chile, China, Fidschi, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Papua New Guinea, Philippines, Russian Federation, Solomon Islands, Singapore, Thailand, Vanuatu, Vietnam, Hongkong (China).
Viña Del Mar Mou: Argentina, Brazil, Chile, Cuba, Ecuador, Colombia, Mexico, Panama, Peru, Uruguay, Venezuela.
Caribbean Mou: Anguilla, Antigua and Barbuda, Aruba, Bahamas, Barbados, Bermudas, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guayana, Jamaica, Monserrat, Netherlands Antilles, Saint Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, Turks and Caicos Islands.
Mediterranean Mou: Algeria, Cyprus, Egypt, Israel, Lebanon, Malta, Morocco, Tunisia, Turkey, Palestine Authority.
Indian Ocean Mou: Australia, Eritrea, India, Iran, Kenya, Maldive Islands, Mauritius, Oman, South Africa, Sri Lanka, Sudan, Tanzania, Yemen.
Abuja Mou: Benin, Cape Verde, Congo, Cote d’Ivoire, Gabon, Gambia, Ghana, Guinea, Liberia, Mauretania, Namibia, Nigeria, Senegal, Sierra Leone, South Africa, Togo.
Black Sea Mou: Bulgaria, Georgia, Romania, Russian Federation, Turkey, Ukraine.
Riad Mou: The United States Coast Guard verifies that all foreign vessels operating in the United States waters are in substantial compliance with international conventions, as well as are applicable to the U. S. laws, regulations and treaties. The U. S. is not a member of any Port State Control MOU.
Application period
The Port State inspection is random whereas The application of ISM is continuous. The Port State authorities ensure that a minimum number of ships are inspected. They use targeting factors to focus inspection on those ships most likely to be substandard.
Port State Control Inspections may be conducted on the following basis:
- Initiative of the Port State Administration;
- The request of, or on the basis of, information regarding a ship provided by another Administration;
- Information regarding a ship provided by a member of the crew, a professional body, an association, a trade union or any other individual with an interest in the safety of the ship, its crew and passengers or the protection of the marine environment.
Immediate loss due to non application
Non application of ISM would imply that the ship is not complying with required regulations and would cause non coverage of insurance. The failure of PSC inspection will cause detention and hence financial losses.
Factors Responsible for Success
The objectives of Port State Control are practically met with great success. There has been a regular, careful and unbiased monitoring of foreign ships. Masters of visiting ships have effectively been arranging the areas of responsibility on the individual person regarding regular inspection, log keeping, etc. Continuous monitoring through various safety procedures and also self surveying before hand has enhanced safety. To be ready for any inspection has caused a safety level much better than yester years.
The awareness level is high. The involvement of all has also played a key role. The success of ISM’s implementation on the other hand depends on the continued commitment, competence, attitudes and motivation of individuals, at all levels, in the company and on board ships to which the ISM Code applies. It can be said that success is due to the commitment from top and involvement of all. If we look back in to past, we will realise that many of the good Indian companies like Scindias, already ran ISM principles but with own style.
Different methodologies but same core objective
At ISM implementation stages, the ISM deficiencies were targeted by the PSC inspectors. The deficiencies did diminish with time. In other words one tool helped the other. Let us take an example of a ship found with safety items that are overdue for maintenance and servicing. This is:
1. A deficiency in complying with the life-saving appliances regulations in SOLAS, straightaway.
2. A breach of the SMS. A properly implemented SMS should result in safer shipboard practices and would have discovered, say a life raft that is overdue for servicing. SMS would have ensured that life raft servicing is scheduled and undertaken well in advance of the expiry date. Thus, the two different instruments shake hands and work together on safety.
Procedure of Inspection / Audit
PSC inspection is done by a surveyor well conversant with the subject matter unlike an ISM auditor, who must better know the ISM principles. A PSC inspection involves following steps:
[A] Preparation before a vessel enters port
The process begins before a vessel enters port with the scheduling of the boarding of the vessel. Information on scheduled ship arrivals are obtained from port authorities, vessel traffic services, or local shipping agents. Depending on the volume of ship arrivals and the availability of PSC inspectors, a targeting system may be applied. A targeting system allows PSC authorities to determine which ships should be given priority for inspection.
[B] Gathering information regarding the vessel.
Detailed information such as ship type, tonnage, age and outstanding deficiencies help optimise the inspection process by establishing which areas on board the ship deserve greater focus. In addition, detailed information about the ship also helps determine the composition of the team of properly qualified PSC inspectors.
[C] Gauging general condition of the hull
The actual PSC inspection begins with viewing things that can be observed from outside the ship such as the general condition of the hull, draft marks, moorings, means of access, and cargo handling operations can give clues as to the level of safety being maintained on board. The PSC inspector(s) will identify themselves when they board the vessel and brief the ship’s Master or his representative on the nature of the visit.
[D] Documents
Inspector(s) verify certificates and documents that serve as prima facie evidence that the vessel complies with relevant IMO and ILO conventions. PSC inspector satisfies himself with the possession of the required certificates and documents.
[E] Detailed Inspection
If suspicion is raised, or if someone files a report alleging that the ship does not comply with regulations, then a more detailed inspection is carried out. A more detailed inspection could lead to the identification of deficiencies that would be noted on the inspection report. If deficiencies are found, the inspector decides on the appropriate actions or sanctions. These could be on-the-spot corrections, corrective measures prior to departure from the port, corrective measures within a specified period, corrective measures prior to cargo operations or allowing the vessel to proceed to another port for repairs. Follow-up inspections either in the same or in a future port of call are conducted to verify that the mandated correction of deficiencies has been made.
[F] Detention
When serious deficiencies are found that confirm and establish clear grounds for detention, PSC authorities can prevent the vessel from departing until those deficiencies are rectified. The PSC authorities within the main MOU regions use deficiency codes for the various defects they list in the inspection.
Various terms used to point out flaws noticed under an ISM audit are as follows:
Objective evidence means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified.
Observation means a statement of fact made during a safety management audit and substantiated by objective evidence.
Non-conformity means an observed situation where objective evidence indicates the non-fulfillment of a specified requirement.
Major non-conformity means an identifiable deviation that poses a serious threat to the safety of personnel or the ship or a serious risk to the environment that requires immediate corrective action or the lack of effective and systematic implementation of a requirement of this Code.
Procedure for safety management audits
[A] Application for Audit
The Company should submit a request for audit to the Administration or to the organization recognized by the Administration for issuing a Document of Compliance or a Safety Management Certificate on behalf of the Administration.
[B] Preliminary review
As a basis for planning the audit, the auditor should review the safety management manual to determine the adequacy of the safety management system in meeting the requirements of the ISM Code.
[C] Preparing the audit
The nominated lead auditor should liaise with the Company and produce an audit plan. The auditor should provide the working documents which are to govern the execution of the audit. The audit team should be able to communicate effectively with auditees.
[D] Executing the Audit
The audit should start with an opening meeting in order to introduce the audit team to the Company’s senior management, summarise the methods for conducting the audit, confirm that all agreed facilities are available, confirm time and date for a closing meeting and clarify possible unclear details relevant to the audit. The audit team should assess the safety management system on the basis of the documentation presented by the Company and objective evidence as to its effective implementation. Evidence should be collected through interviews and examination of documents. Observation of activities and conditions may also be included when necessary to determine the effectiveness of the safety management system in meeting the specific standards of safety and protection of the environment required by the ISM Code. Audit observations should be documented. After activities have been audited, the audit team should review their observations to determine which are to be reported as non-conformities. Non-conformities should be reported in terms of the general and specific provisions of the ISM Code.
At the end of the audit, prior to preparing the audit report, the audit team should hold a meeting with the senior management of the Company and those responsible for the functions concerned.
[E] Audit report
The audit report should be prepared under the direction of the lead auditor and should include the audit plan, identification of audit team members, dates and identification of the Company, observations on any non-conformities and observations on the effectiveness of the safety management system in meeting the specified objectives.
[F] Corrective action follow-up
The Company is responsible for determining and initiating the corrective action needed to correct a non-conformity or to correct the cause of the non-conformity. Failure to correct non-conformities with specific requirements of the ISM Code may affect the validity of the Document of Compliance and related Safety Management Certificates.
Notice for Inspection (PSC), Audit (ISM)
Vessels arriving in Paris MOU ports which are due for an expanded inspection must give a 72 hours pre-arrival notification. Other vessels must give a 24 hours pre-arrival notification. Details of the reporting requirements for different MOUs can be found in their respective websites or in other maritime sites.
Extra Inspections / Audits
There are no documentary or periodical requirements for a PSC inspection but same is not the case with ISM. The Company should carry out internal safety audits on board and ashore at regular intervals to verify whether safety and pollution – prevention activities comply with the safety management system.
Types of PSC inspection
PSC inspections may be on random, targeted or periodical basis. The following types of PSC inspections are used in PSC:
- Initial Inspection (random)
- More detailed inspection (escalated)
- Expanded inspection (targeted/periodical)
The types of Verification / Audits
The certification process relevant to a Document of Compliance for a Company and a Safety Management Certificate to a ship will normally involve initial verification, annual / intermediate verification, renewal verification and additional verification.
The audits are basically internal or external. The internal auditors’ are part of the organization. Their objectives are determined by professional standards, the board, and management. Their primary clients are management and the board. External auditors are not part of the organization, but are engaged by it. Their objectives are set primarily by statute and their primary client – the board of directors.
Let us look at the various types of PSC inspections in more detail.
- Initial Inspection
The PSCO will normally examine the vessel’s relevant certificates and documents etc. and the overall condition of the ship. - More Detailed Inspection and Clear Grounds
This is inspection conducted when there are clear grounds for believing that the condition of the ship, its equipment, or its crew does not comply with the requirements of the relevant conventions. The inspection may focus on one area or be across various areas.
The following may be considered to be clear grounds for more detailed inspections by a PSCO:
- The absence of principle equipment or arrangements.
- Evidence that a certificate is clearly invalid.
- Evidence that the ship’s logs, manuals or other documentation are not on board, are not maintained, or are falsely maintained.
- A general impression and observation that a serious hull or structural deterioration or deficiencies exists affecting watertight or weathertight integrity of the ship.
- A general impression or observation that serious deficiencies exist in the safety, pollution prevention or navigational equipment.
- Information or evidence that the Master or crew is not familiar with essential shipboard operations.
- Indication that key crew members may not be able to communicate with each other.
- Absence of an up-to-date muster list, fire control plan, and for passenger ships, a damage control plan.
- Receipt of a report or complaint containing information that a ship appears to be substandard.
- Reporting of ship by pilots or port authorities about unsafe practice.
- Ships whose statutory certificates have been issued by an organisation which is not recognised.
- The ship has been involved in a collision on its way to the port.
- The ship is in a category for which expanded inspection has been decided.
- The ship has been suspended from their class for safety reasons in the preceding six months.
- The ship has been accused of an alleged violation of provisions on discharge of harmful substances or effluents.
- The ship flying the flag of a State appearing in the three-year rolling average table of above average detentions in the annual report of MOU.
3. Expanded inspection
This is an inspection conducted according to non-mandatory guidelines. Oil tankers, bulk carriers, gas and chemical carriers and passenger ships are subject to expanded inspections once during a period of 12 months. These inspections could be carried out in accordance with number of provisions relevant to the ship types.
Expanded inspections include; execution of black-out and start of emergency generator; inspection of emergency lighting and back up sources including batteries; etc.
Additional expanded inspections, which might be carried out for oil tankers are in respect of; fixed-deck foam system; etc. Additional expanded inspections, which might be carried out for bulk carriers are in respect of; corrosion of deck machinery foundations; etc.
As said earlier, the control procedure and the regulations in respect of the what must be stated has been stated in various conventions. It is interesting to note that there can be many questions in respect of ISM code which can be asked by a PSCO.
- Is the ISM Code applicable to the particular ship as of 1st July, 1998?
- Is the ISM certification available on board?
- Are the certificates and other particulars in order?
- Is the relevant Safety Managements documentation (e.g. manuals) readily available on board? (Ref.: Section 1.4 of the ISM Code)………
Documentation in PSC / ISM
The two certificates issued under ISM code are DOC and SMC. In certain situations interim certificates may be carried for the time being. After a PSC inspection, detention, repairs, rectification, etc special forms are issued to ship with copies to Flag State and IMO. Thus, in case of a PSC inspection, the Master will receive an official inspection report consisting of Form A and B. Form A lists the ship’s details and the validity of the relevant certificates. Form B shows the list of deficiencies found (if any), with an action code which describes a time frame for rectification for each deficiency.
Interim DOC is Issued to facilitate initial implementation of the Code, implementation when a Company is newly established or new ship types added to existing DOC. An interim DOC is valued for maximum 12 months. Thus, an Interim SMC is issued for new ship on delivery and when companies takes on the management of a ship new to the company.
An Interim SMC is valid for 6 months. In special cases the issuing body may extend the validity of the Interim SMC for further six months.
Reporting, Corrective action and close loop system
The Safety Management System should include procedures ensuring that non-conformities, accidents and hazardous situations. These are reported to the Company, investigated and analysed with the objective of improving safety and pollution prevention. The Company should establish procedures for the implementation of corrective action, including measures intended to prevent recurrence.
In respect of a Port State detention, at least an initial notification should be made to the flag State Administration as soon as practicable. If such notification is made verbally, it should be subsequently confirmed in writing. As a minimum, the notification should include details of the ship’s name, the IMO number, copies of Forms A and B, time of detention and copies of any detention order. Likewise, the recognized organisations which have issued the relevant certificates on behalf of the flag State should be notified, where appropriate.
The parties above should also be notified in writing of the release of detention. As a minimum, this information should include the ship’s name, the IMO number, the date and time of release and a copy of Form B. If the ship has been allowed to sail with known deficiencies, the authorities of the Port State should communicate all the facts to the authorities of the country of the next appropriate port of call, to the Flag State and to the recognised organisation, where appropriate.
Parties to a relevant convention, when they have exercised control giving rise to detention, should submit to the Organisation reports in accordance with SOLAS regulation I/19, article 11 of MARPOL, article 21 of Load Lines, or article X(3) of STCW. Such deficiency reports should be made in accordance with the form given in appendix 13 or 16, as appropriate, or may be submitted electronically by the Port State or a regional PSC regime.
Copies of such deficiency reports should, in addition to being forwarded to the Organisation, be sent by the Port State without delay to the authorities of the Flag State and, where appropriate, to the recognised organisation which had issued the relevant certificate.
Deficiencies found which are not related to the applicable conventions, or which involve ships of non-convention countries or below convention size, should be submitted to flag States and/or to appropriate organisations but not to IMO.
Standards of Competence PSC / ISM
A properly qualified Port State control officer must have completed a minimum of one year’s service as a flag State surveyor dealing with surveys and certification in accordance with the relevant instruments and be in possession of; a certificate of competency as Master, chief engineer; a naval architect, mechanical engineer or an engineer related to the maritime field and work in that capacity for at least 5 years; or has equivalent qualifications as determined by the Administration. A minimum service at sea is normally prescribed as officer in the deck or engine department. Alternatively, a Port State control officer may holds a relevant university degree or an equivalent training, has been trained and qualified and has served at least 2 years as a flag State control surveyor dealing with surveys and certification.
ISM auditor should have practical knowledge of ISM Code certification procedures and practices. Personnel who are to participate in the verification of compliance should have a minimum of formal education comprising; the qualifications from a tertiary institution recognised by the Administration or by the recognised organisation within a relevant field of engineering or physical science (minimum two years programme); or qualifications from a marine or nautical institution and relevant seagoing experience as a certified ship officer. They should have undergone training to ensure adequate competence and skills for performing verification of compliance with the requirements of the ISM Code, particularly with regard to, ISM Code, mandatory rules and regulations, participation in at least one marine-related management system audit, etc. Personnel who are to perform annual, intermediate and interim verifications should satisfy basic requirements for personnel participating in verifications and should have participated in a minimum of two annual, renewal or initial verifications.
Ownership under PSC / ISM
Under ISM company means the owner of the ship or any organisation or person such as the manager, or the bare boat charterer, who has assumed the responsibility for the operation of the ship from the owner of the ship. The Company has agreed to take over all the duties and responsibilities imposed by the ISM Code.
Under PSC there is the concept of owner rather than the company. The legal accountability, penal losses, coordination with the other entities in industry, ownership as required under CSR, etc.
Designated Person Ashore (DPA)
ISM incorporates a unique concept of officially delegated DPA. Other responsible officers should also be aware of the identity and role of DPA. The Master should be able to explain the cause of non-conformities that the DPA will be seeing. The DPA is the ‘manager’ of the system ashore. In PSC inspections the two entities in front of PSCO are the ship and the ship owner. There is no individual like DPA as in case of ISM.
Emergency preparedness
A programme of drills and exercises required by SOLAS Chapter III and plan as per SOPEP, should be in place. This will be confirmed by a PSCO. The crew response to potential emergencies should be practiced in drills. These drills should cover all documented responses to critical and emergency situation. Records should be maintained and available for verification of both, the PSCO as well as an ISM auditor. One would see the compliance with the rules whereas the other with the written procedures. Procedures however must be written with the objectives of the basic regulations. With no records an auditor will assume that the task was never performed.
EMERGENCY PREPAREDNESS is an important feature of SMS and hence ISM. The Company should establish procedures to identify, describe and respond to potential emergency shipboard situations. The Company should establish programmes for drills and exercises to prepare for emergency actions. A PMS is in a way an ISM tool. It would ensure identifying the shortcomings from the standard required by the major IMO conventions.
Detention
A PSC detention order can be issued at the sole discretion of a PSCO. An unduly detained ship will be entitled to compensation and can appeal against the detention if the detained ship can prove the wrongful detention. Under different jurisdictions, there are limited rights of appeal against a Port State detention order. However, appeal against a detention order takes quite a long time and does not stop the process of detention. A letter of guarantee from a P&I club would really not help. Cancellation of ISM certificates would involve serious repercussions including loss of business and inability to sail.
Cancellation of Certificates
The rules about cancellation of the statutory certificates will be as per the relevant convention and under the authority of Flag State. The certificates should be withdrawn by the Administration which issued the certificate when the annual verification required by the rules is not requested or if there is evidence of continued major non-conformities with this Code. PSC inspections do not cause cancellation of certificates but may ensure the necessary changes are done to continue the validity of a certificate.
Thus, where the Port State control poses and equivalent control and powers of flag state in deciding the safety and seaworthy aspects, the ISM code has its network extending to almost all the walks of legal world. PSC is the flag state operating in foreign country, for all practical purposes. Each has worked very well practically, complementing each other ensuring a safety culture.
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