Flag State Performance

Transcription

1 Flag State Performance Shipping Industry Guidelines on Second edition

2 Flag State Performance Shipping Industry Guidelines on Published by Maritime International Secretariat Services Limited 12 Carthusian Street, London EC1M 6EZ web ag-performance Second edition 2006 These guidelines have been developed using the best information available, but they are intended for guidance only, to be used at the user s own risk. No responsibility is accepted by any fi rm, corporation or organisation who or which has been in any way concerned with the furnishing of data, the compilation, publication or authorised translation, supply or sale of this guidance, for the accuracy of any information or advice given herein, or any omission herefrom or consequences whatsoever resulting directly or indirectly from use of these guidelines or from compliance with or adoption of guidance contained therein.

3 Foreword The Round Table of international shipping associations - BIMCO, INTERCARGO, INTERNATIONAL CHAMBER OF SHIPPING/INTERNATIONAL SHIPPING FEDERATION and INTERTANKO - believe it is essential that standards of safety, environmental and social performance are maintained and enforced by flag states, in full compliance with international maritime regulations. These guidelines on flag state performance have been produced to help the international shipping industry contribute to this objective. The guidelines are addressed to shipping companies owning and/or operating merchant cargo or passenger ships trading internationally. Although developed for shipping companies, they should also be of interest to policy makers involved in maritime safety, and flag administrations themselves. Guidelines such as these can only be recommendatory in nature, and companies may need to adapt them to fit their particular needs and circumstances. On this understanding, the guidelines are intended to provide useful advice on what a shipping company might reasonably expect, in its capacity as a customer, of an administration whose flag it chooses to fly. Note on the Second Edition This is the second edition of the Shipping Industry Guidelines on Flag State Performance, following initial publication in 2003 (although the accompanying Flag State Performance Table has been updated annually). The guidelines have been revised to reflect recent developments including the adoption by the International Maritime Organization (IMO) of the Member State Audit Scheme, and its accompanying Code on the Implementation of Mandatory Instruments, whereby maritime administrations are subject, on a voluntary basis, to external audits by other IMO Member States, in order to identify any shortcomings with regard to the full implementation of IMO regulatory requirements. The Round Table of international shipping associations is a committed supporter of the IMO audit scheme, which it is hoped will eventually become mandatory. These Shipping Industry Guidelines are intended to serve as a complement to the IMO scheme, contributing to the objectives of maintaining safe shipping and clean seas. This latest edition of the guidelines also reflects other important developments, such as the adoption by the International Labour Organization (ILO) of the Maritime Labour Convention, 2006, and the entry into force of Annex VI (prevention of atmospheric pollution) of the IMO MARPOL Convention. This edition also takes account of numerous and helpful comments received from maritime administrations around the world, in order to make the guidelines as relevant and objective as possible. Contents page 3 Purpose and scope 4 Introduction 4 Why produce these guidelines? 4 The role of the flag state 4 Why flag state performance is important 6 Section One Flag state responsibilities 6 Infrastructure 6 International maritime treaties 6 Implementation and enforcement 7 Supervision of surveys 7 International Safety Management Code 7 Maritime security 7 Seafarers competence standards 8 Employment standards 8 Safe manning and seafarers working hours 8 Casualty investigations 8 Movement of ships between flags 8 Repatriation of seafarers 9 IMO Member State Audit Scheme 9 Participation at IMO and ILO meetings 9 Consultation with shipowners 10 Section Two Selected summary data on flag state performance used in the Flag State Performance Table 10 How to use the data 10 Port state control 10 Ratification of major international maritime treaties 11 Use of Recognized Organizations complying with A Age of fleet 12 Reporting requirements 12 Attendance at IMO meetings Insert Table of summary data on Flag State Performance 4

4 Purpose and scope 1 The common legal understanding of flag state is the administration or the government of the state whose flag the ship is entitled to fly. There is nothing inherently unusual in an international ship registry system in which the owner of a ship may be located in a country other than the state whose flag the ship flies. However, a balance has to be struck between the commercial advantages of selecting a particular flag and the need to discourage the use of flags that do not meet their international obligations. The purpose of these guidelines is twofold: To encourage shipowners and operators to examine whether a flag state 1 has sufficient substance before using it. To encourage shipowners and operators to put pressure on their flag administrations to effect any improvements that might be necessary, especially in relation to safety of life at sea, the protection of the marine environment and the provision of decent working and living conditions for seafarers. Section One of these guidelines contains a list of the responsibilities that a shipping company might reasonably expect of a flag state. For simplicity and practicality, this list is general in nature and makes no claim to be comprehensive. It is nevertheless intended to provide some criteria for determining whether a flag administration takes its responsibilities seriously. Section Two (and the accompanying Flag State Performance Table) summarises some essentially factual information that may be helpful in assessing the performance of flags, derived from data available in the public domain. The format of the table is intended to provide a general appreciation of a flag s performance, and an indication of whether further questions may need to be asked. The conclusions that can be drawn from this data are largely self-explanatory. The performance table is updated annually (see org/flag-performance). 5

5 Introduction Why produce these guidelines? Shipping is one of the safest and most environmentally benign modes of transport, yet several high profile casualties have prompted questions from politicians and the media about the performance of flag states. There is understandable concern about shipping companies use of flags that may not comply fully with international regulations. Moreover, contemporary worries about maritime security have added a new slant to these concerns. While it is shipping companies that have primary responsibility for the safe operation of their ships and the safety and welfare of their crews, the flag state plays a critical role with regard to the safety of life at sea and the protection of the marine environment. It is the flag state that has overall responsibility for the implementation and enforcement of international maritime regulations for all ships flying its flag. Effective regulation by governments of the technical and social aspects of shipping is therefore vital to ensure safe, secure and pollution-free ship operations, and good employment conditions for seafarers. The United Nations International Maritime Organization (IMO) has made considerable efforts to restore confidence in the flag state. But it is also important for the industry to promote satisfactory flag state performance, and for shipping companies to discourage the use of flags that perform poorly. The role of the flag state The flag state, as defined by the United Nations Convention on the Law of the Sea (UNCLOS), has overall responsibility for the implementation and enforcement of international maritime regulations for all ships granted the right to fly its flag. However, the flag state may conduct the larger part of its activities through entities located in other countries. Most national maritime administrations have other roles, in their capacity as port and coastal states, which may involve the enforcement of regulations with regard to visiting foreign ships. However, in the context of the regulation of shipping, it is a nation s role as a flag state that is the first line of defence against potentially unsafe or environmentally damaging ship operations. This is the focus of these guidelines. The enforcement of IMO rules that apply to the operation of ships is, in the first instance, dependent on IMO member governments in their capacity as flag states. Flag states also have responsibility for the implementation and enforcement of rules adopted by other intergovernmental bodies, including the International Labour Organization (ILO) and the International Oil Pollution Compensation (IOPC) Fund. ILO governs standards of seafarers employment. The IOPC Fund ensures that victims of any major maritime oil pollution incident receive adequate compensation without undue delay. Why flag state performance is important The owner of a high quality fleet, operated under one or more flags to a uniform standard in full conformity with international requirements, might well ask why the performance of the flag is relevant to his operation. Since a shipping company has primary responsibility for the safety of its vessels, a ship s quality should ultimately be judged on an individual basis. Indeed, excellent ships may be registered with less effective flags, while some well-administered flags may have some less satisfactory tonnage. 6

6 However, the performance of a flag being used by a fully compliant shipping company may impinge directly on that company s performance. Ships flying a flag whose vessels have shown higher than average levels of non-compliance during port state control inspections are generally subject to special port state control targeting and thus greater numbers of inspections. For the compliant operator this can mean unnecessary delays, plus greater potential for charterers penalties. Moreover, on ships using flags with a poorer record, port state control inspectors may be more inclined to make an issue of routine non-critical deficiencies caused by genuine wear and tear during the preceding voyage. The shipping company, and not least its charterers, may also have general concerns about the implications for its corporate reputation of being associated with a poorly performing flag, even if the company s ships are fully compliant. But the overriding interest in promoting high performing flag states is that they are less likely to tolerate sub-standard operators. This small minority of shipping companies enjoys an unfair commercial advantage over the vast majority of fully compliant operators, and damages the overall reputation of the industry. A shipping company whose ships comply fully with international standards may still have legitimate reasons for using a flag that has a below average record. The state may be the country in which the company is located, there may be implications for the employment of certain nationalities of seafarers, or else the use of particular flags could be determined by the terms of a ship s charter (eg government contracts). But if there is reason to believe, perhaps from analysis of the data summarised in Section 2, that a flag has a poor performance, then shipowners may wish to consider carefully whether using such a flag is in the interests of either the company or the industry at large. In co-operation, where relevant, with national and international shipowners associations, shipowners who have concerns about the performance of particular flags are strongly encouraged to enter into a dialogue with such administrations, and to urge an improvement in their record. 7

7 Section One Flag state responsibilities Infrastructure A flag state should clearly have sufficient infrastructure, in terms of qualified and competent staff, offices and equipment, to meet its obligations under international treaties. Different flags have different approaches, eg staffing may depend on the extent to which flags delegate certain functions to bodies such as classification societies. But if a flag state does not appear to have separate inspection or crewing departments, for example, it is possible that the flag s only effective function may be the collection of registration fees. International maritime treaties All flag states should endeavour to ratify the principal international maritime treaties, including those adopted by IMO and ILO. As a minimum, flag states should be expected to have ratified the following core international maritime conventions: 1 International Convention for the Safety of Life at Sea, 1974 as amended, including the 1988 Protocol, the International Safety Management (ISM) Code and the International Ship and Port Facility Security (ISPS) Code (SOLAS 74). 2 International Convention for the Prevention of Pollution from Ships,1973 as modified by the Protocol of 1978, including Annexes I - VI (oil, bulk chemicals, dangerous packaged goods, sewage, garbage and atmospheric pollution) (MARPOL 73/78). 3 International Convention on Load Lines, 1966, including the 1988 Protocol (LL 66). 4 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 as amended, including the 1995 amendments (STCW 78). 5 International Labour Organization Merchant Shipping (Minimum Standards) Convention 1976, including the 1996 Protocol (ILO 147), until superseded by the Maritime Labour Convention, International Convention on Civil Liability for Oil Pollution Damage, 1992, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (CLC/Fund 92). A responsible flag state should be able to provide a valid explanation for not having ratified any of the above, and in practice should be expected to implement and enforce national regulations that comply with the vast majority of the detailed requirements contained within these international regulations. In addition to the core maritime conventions mentioned above, and the United Nations Convention on the Law of the Sea (UNCLOS), flag states are particularly encouraged to ratify and implement the following more specific IMO Conventions: Control and Management of Ships Ballast (BWM); Anti-fouling Systems (AFS); Limitation of Liability for Maritime Claims (LLMC) and its 1996 Protocol; Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS); and Civil Liability for Bunker Oil Pollution Damage (Bunkers). However, because these instruments still lack widespread ratification, even amongst what might be regarded as leading flag states, they are not currently referred to in the accompanying Flag State Performance Table. Implementation and enforcement As a minimum, it is reasonable to expect flag states to have implemented the detailed requirements of the international maritime treaties listed above, and to have established 8

8 effective mechanisms for their enforcement. For example, SOLAS, amongst other conventions, provides for regular ship surveys and the issue of certificates of compliance by the flag state, while STCW requires certification of crew competence. A simple means of assessing the extent to which international regulations are being properly enforced is through an examination of externally published data concerning the performance of ships registered with particular flags, not least port state control data (see Section Two and the table accompanying these guidelines). Supervision of surveys In accordance with IMO Resolution A.739, flag states should establish appropriate controls over organisations, such as classification societies, nominated to conduct statutory surveys of ships on their behalf. Such controls should include determining that the organisation has adequate resources for the tasks assigned, and entering into a formal written agreement covering the issues specified in A.739. Flag states should specify instructions detailing actions to be followed in the event that a ship is not found fit to proceed to sea, and provide information concerning national regulations that give effect to international maritime conventions. A verification and monitoring system should also be established to ensure the adequacy of work performed by organisations acting on a flag state s behalf. The delegation of statutory survey work should be restricted to Recognized Organizations that comply with IMO Resolution A.739. In practice this will usually mean internationally recognised bodies, such as members of the International Association of Classification Societies (IACS). International Safety Management Code Flag states should have implemented the requirements of the ISM Code concerning the auditing of safety management systems (SMS), both on ships flying their flag and the shore based companies responsible for their safe operation. Flag states should also have established procedures for the issue and withdrawal of ships Safety Management Certificates (SMCs) and companies Documents of Compliance (DOCs). Flag states should also adhere to the Guidance contained in IMO Resolution A.788 concerning the implementation of the ISM Code. Flag states delegating ISM Code auditing and certification to other bodies should only delegate to organisations that comply with IMO Resolution A.739. Maritime security Flag states should have implemented the relevant requirements of the SOLAS Convention and the International Ship and Port Facility Security (ISPS) Code concerning the approval of Ship Security Plans, the issue of International Ship Security Certificates and the provision to ships of Continuous Synopsis Records. Flag states delegating approval of plans and/or the issue of security certificates to other bodies should only delegate to organisations that comply with the requirements for Recognized Security Organizations as specified by the ISPS Code. Flag states are also encouraged to ratify and implement the ILO Seafarers Identity Documents Convention, 2003 (ILO 185). Seafarers competence standards Flag states should be placed on the IMO STCW white list of governments that have demonstrated compliance with the administrative measures needed to implement the 1995 amendments to the STCW Convention concerning the competence and certification of internationally qualified seafarers. As required by STCW, flag states should submit quality standards reports to IMO at five year intervals, outlining any deficiencies in their training and 9

9 certification systems and measures taken to rectify them, in order to maintain a place on the updated STCW white lists periodically issued by the IMO Maritime Safety Committee. Flag states should issue STCW recognition endorsements to foreign officers serving on ships flying their flag, even when they have been issued with certificates of competence by another country. The flag state should have procedures in place to ensure that the foreign certificate issuing country complies with STCW training and certification standards. Flag states should maintain databases of the certificates they have issued to national seafarers and of STCW endorsements issued to foreign officers, and respond immediately to requests from companies seeking confirmation of the validity of any certificate or flag state recognition endorsement issued by the flag state. Employment standards Flag states should implement the requirements of the ILO Maritime Labour Convention, 2006, including, but not limited to, the inspection and enforcement of ILO standards covering conditions of employment, food and catering, medical care and accommodation; the approval of ships Declarations of Maritime Labour Compliance; and the issue of Maritime Labour Certificates. Safe manning and seafarers working hours Flag states should approve safe manning levels for ships flying their flag and issue safe manning documents, in accordance with the provisions of IMO Resolution A Flag states should strictly enforce minimum seafarers rest hours that comply with the ILO Maritime Labour Convention (MLC 2006) 3 in addition to the IMO STCW Convention. Flag states should require work/rest hours to be recorded in accordance with joint IMO/ILO Guidance 4. Casualty investigations In accordance with IMO Resolution A.849, and taking into account the provisions of SOLAS and MARPOL, a flag state should carry out investigations of any serious and very serious casualty occurring to its ships, as soon as practicable after the casualty. Flag states should also co-operate with other nations investigating casualties in which ships flying its flag may be involved. The relevant findings of such investigations should be forwarded promptly to IMO, and should be made available to the industry and other interested parties. 2 As amended by Resolution A.955 to take account of the ISPS Code. 3 The work/rest hour requirements of the ILO Maritime Labour Convention are essentially the same as the requirements of ILO IMO/ILO Guidelines on Work Hour Record Formats, published by IMO in Movement of ships between flags A flag state accepting a ship transferring from the flag of another state should only accept such a ship when it is satisfied that it is in compliance with international requirements, and has survey reports confirming that the ship is in class. Flag states whose ships transfer to other registers have an obligation to provide all necessary information to the new flag state in which the ship is registered. Repatriation of seafarers In normal circumstances the employer is responsible for the repatriation of seafarers. Nevertheless, as required by the ILO Maritime Labour Convention, a responsible flag state should institute arrangements to ensure that in the rare event of normal procedures failing (eg due to bankruptcy of a shipping company) the seafarers working on board any ships flying its flag, including those that are nationals of other states, are repatriated to their country of residence. 10

10 IMO Member State Audit Scheme Flag states should participate in the IMO Member State Audit Scheme in order to identify areas for possible improvement with regard to the implementation of IMO instruments, and which may benefit from IMO technical assistance programmes. In the interests of transparency and continuous improvement, the industry organisations believe that flag states should publish the results of the IMO audits for the benefit of the industry as a whole. Participation at IMO and ILO meetings In order to keep appraised of the latest international maritime regulatory developments (and contribute to the decisions made by IMO), flag states should be expected to attend all meetings of the following IMO committees: Maritime Safety Committee (MSC) Marine Environment Protection Committee (MEPC) Legal Committee (LEG) Biennial meetings of the IMO Assembly. If possible, flag states should also participate in IMO Diplomatic Conferences and relevant technical sub-committees of IMO, including the Sub-Committee on Flag State Implementation, as well as major maritime meetings of the International Labour Organization. All flag states, particularly those from developing countries which might benefit from technical assistance programmes, should also be encouraged to attend meetings of the IMO Technical Co-operation Committee. Consultation with shipowners Flag states should have some form of consultative process to enable ship operators to engage in discussions about maritime regulatory developments and other issues relevant to the safe operation of ships flying their flag, for example, through the mechanism of a national shipowners association. 11

11 Section Two Selected summary data on flag state performance used in the Flag State Performance Table (To be read with accompanying inserted table) How to use the data Summary data on certain aspects of flag state performance, derived from information available in the public domain, are shown in the inserted table accompanying these guidelines. This Flag State Perfomance Table is updated annually (see Like all statistics, the data shown need to be used with care. A single indicator may provide an unreliable measurement of performance (eg although a flag state might be unable to ratify a convention due to conflict with domestic law, it may nevertheless implement its main requirements). However, when a variety of indicators suggests that a flag may suffer from unsatisfactory performance, shipping companies using, or considering using, that flag should ask further questions of the administration concerned. Port state control A simple means of assessing the effective enforcement of international rules is to examine the collective port state control record of ships flying a particular flag. The three principal regional Port State Control (PSC) authorities 5, which maintain comprehensive statistics, are the countries of the Paris Memorandum of Understanding (MOU), the Tokyo MOU and (though a single country) the United States. All three authorities target particular flags on the basis of deficiencies and detentions recorded for ships flying that flag. The targeting methods differ slightly, and some poorly performing flags may be omitted because the number of their ships trading to particular PSC regions is too small to be statistically significant. However, the table identifies flag states that appear on the Paris MOU, Tokyo MOU and United States Coast Guard (USCG) target lists of flag states 6. As a further indication of performance, the tables also identify those flags which, though not necessarily performing poorly, are not included on the Paris MOU white list, the Tokyo MOU white list or in the US Coast Guard Qualship 21 programme, and whose ships may therefore be subject to a greater likelihood of inspections 7. Ratification of major international maritime treaties Ratification of international maritime conventions does not necessarily confirm whether the provisions of these global instruments are being properly enforced. However, a flag state should be able to provide good reason for not having ratified any of the instruments referred to in the table. The list of conventions referred to in the Performance Table is not as extensive as that contained in Section One of these guidelines, the Performance Table including only those core conventions, relevant to flag state responsibilities, which already enjoy widespread ratification and enforcement. For this reason, because the ILO Maritime Labour Convention (MLC 2006) was adopted as recently as February 2006, the table still refers to the ILO Merchant Shipping (Minimum Standards) Convention (ILO 147) as the main maritime labour convention that flag states should reasonably be expected to have ratified. However, the Maritime Labour Convention 2006 supersedes ILO 147 and will therefore replace it in the Performance Table in due course, once states have had sufficient time to ratify it. 5 There are various other regional and national PSC regimes worldwide, but in the interests of simplicity the performance table only uses data from the three principal regional PSC authorities. 6 The Paris and Tokyo MOU data relates to their black lists, but not their grey lists of flags whose record is worse than average but better than those on the black list. 7 Some flags may not be included on regional PSC white lists because the low number of port calls by their ships may make them ineligible to qualify. The fact remains, however, that ships flying such flags will be more likely to be subject to inspection. 12

12 The criteria for the conventions listed in the table are as follows: International Convention for the Safety of Life at Sea, 1974 as amended (SOLAS 74) - includes the 1988 Protocol. International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 (MARPOL 73/78) - the table includes one column for the ratification of MARPOL and its mandatory Annexes I (oil) and II (bulk chemicals); and a second column for the remaining Annexes III (dangerous packaged goods), IV (sewage), V (garbage) and VI (atmospheric pollution). International Convention on Load Lines, 1966 (LL 66) - includes the 1988 Protocol. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 as amended (STCW 78) - includes the 1995 amendments. International Labour Organization Merchant Shipping (Minimum Standards) Convention, 1976 (ILO 147) - excludes the 1996 Protocol. International Convention on Civil Liability for Oil Pollution Damage, 1992, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (CLC/Fund 92) - includes the 1992 Protocols.. Use of Recognized Organizations complying with A.739 There are no published data for determining whether each of the various Recognized Organizations conducting survey work on behalf of flag states complies with IMO Resolution A.739. For the purpose of these guidelines it is assumed that IACS members comply. Nevertheless, there are several other organisations that are not members of IACS that meet the standards required by IMO, and the fact that a flag administration may recognise a non- IACS member does not therefore mean that the flag is deficient. However, if a flag state recognises large numbers of organisations that are not IACS members, there may be reason to doubt whether all of the bodies conducting surveys on behalf of the flag state actually comply with IMO requirements. The table therefore indicates the number of organisations that are not members of IACS which are recognised by different flag states. The table also identifies those flag states that have not submitted their Recognized Organization data to IMO in line with A

13 Age of fleet It must be emphasised that the age of a ship is not an indicator of quality and the condition of a ship is ultimately determined by the standard of its maintenance. That said, a fl ag which has a concentration of older tonnage is likely to attract poorer quality vessels, and a fl ag state that has a very high age profi le may prompt further analysis. The table therefore shows the 25% of fl ags whose ships have the highest average age amongst those listed, in terms of both numbers of ships and tonnage. Reporting requirements To encourage implementation of international instruments, there are various reporting requirements, both mandatory and recommendatory, concerning the submission of information by fl ag states to bodies such as IMO and ILO. Information covering the extent to which fl ags have complied with certain reporting requirements is not always available in the public domain. However, as an indicator, the table shows fl ags that have failed to submit adequate reports of independent evaluations to IMO confi rming continuing compliance with the STCW Convention, and have thus failed to maintain a place on the most recent STCW white list. The table also shows fl ag states which have failed to submit compliance and practice reports required by ILO. Attendance at IMO meetings Although in itself not an indicator of their safety and environmental record, fl ag states that do not attend the major IMO meetings (Maritime Safety Committee, Marine Environment Protection Committee, Legal Committee and Assembly) may be thought unlikely to be seriously committed to the implementation and enforcement nt of IMO rules. Attendance at these meetings is also important to keep abreast of regulatory developments. The table identifi es fl ag states that have not been represented at all meetings of these three major IMO committees or the biennial meeting of the IMO Assembly during the previous two years. 14

14 BIMCO Bagsvaerdvej Bagsvaerd Denmark Tel: Fax: Web: Intercargo 9th Floor St Clare House Minories EC3N 1DD Tel: Fax: Web: International Chamber of Shipping / International Shipping Federation 12 Carthusian Street London EC1M 6EZ Tel: Fax: ics@marisec.org isf@marisec.org Web: Intertanko Bogstadveien 27B PO Box 5804 Majorstua N-0308 Oslo Norway Tel: Fax: postmaster@intertanko.com Web:

15 Published by Maritime International Secretariat Services Ltd 12 Carthusian Street London EC1M 6EZ Telephone Fax