Grounds for detention

On the other, you have the probability that some are going to drill down and interpret the rules in quite different ways, especially when it comes to the ILO Maritime Labour Convention (ILO MLC). Nick Whitear of Thomas Miller P&I says owners should engage in compliance now and prevent the new regulations becoming another reason for Port State Control (PSC) detentions. Certainly the reason for the pocket guides (and now an app), compiled in conjunction with Lloyds Register is to help vessels avoid detention.

However, despite the fact that it’s become almost standard practice to use the number of detentions as a benchmark to see how well any owner or section of the industry is doing, “you may get situations where detentions are not consistent as port states develop their interpretation of the rules”, adds Mr Whitear.

David Pascoe of the Liberian Registry says: “There is always the potential for more detentions when a new convention enters into force, especially an ILO convention where there is limited guidance…. We expect that some of these detentions will be unjustified due to lack of familiarity with convention regulations and standards.”

It’s a concern shared by others. At the recent launch of the ILO MLC pocket checklist and app, most of the questions centred on how the ports states may interpret the new rules, especially since when the Convention comes into force in 2013 things might get a little more complex and as many point out, some port states have shown themselves to be “overzealous”.

Natalie Shaw of the ISF and ICS points out that although these checklists seem like a very worthy idea, and that it is useful to have something to act as an ‘aid memoire’ so that ships don’t fall foul of avoidable shortcomings, she is keen that the more complex issues aren’t overlooked.

The first thing to note, says Ms Shaw, is that the Maritime Labour Convention is a very different kettle of fish to most IMO regulations: firstly because unlike the IMO, the International Labour Organisation from which is springs is a tripartite body drawing on shipowners and seafarers unions as much as government representatives.

Ms Shaw points out that the MLC’s application depends on the flag state of the vessel and explains that it is based on a review of 65 existing conventions and recommendations: these had their existing levels of ratification scrutinised by the ILO and were deliberately adapted to be “very flexible”.

“Historically, some conventions have been better ratified than others,” Ms Shaw says. “So when they talked about combining it into one superconvention, they were also keen to get various states to sign up.” This meant a compromise: where certain items were not consistent with national practices, some elements were softened into recommendations – even though they are still mandatory for those states that have ratified the original article which the MLC draws on.

There are other anomalies. For example, some flag states including the UK have not actually ratified the treaty yet, and the UK probably won’t do so before next summer so it will only make its way onto the books a year later. This could cause issues at ports which have the convention in place: as these ports are under agreement to accept certificates as evidence that everything is in order it may place more emphasis on those flags which are not ratified.

While Mr Pascoe said he has not heard that port states might be looking harder at vessels from flag states which have not yet ratified, he does say: “Ships without MLC certificates or other evidence of compliance should expect to be subjected to close inspection by PSC.”

However, some might dispute equating MLC certification with ‘other evidence’.

“Put it this way, where you have a limited number of Port State Control inspectors, you are going to concentrate on those flags that have not ratified the conventions, leaving such ships potentially exposed,” says Ms Shaw.

Janet Ching of HFW points out that it’s an issue that might not stop with the ILO MLC convention, but could also grow in relation to the new environmental standards. She says: “Port states will have a role ensuring compliance of ships under the Green House Gas (GHG) contribution fund scheme, as port state control procedures will be used as an anti-avoidance measure.”

So, compliance will be verified by the inspection of Bunker Delivery Notes by PSC officers performing spot checks during their regular vessel inspections. The likelihood is that vessels will eventually be subject to Port State Control inspections of their fuel purchase records, oil record book and machinery logbooks.

While this sounds somewhat clearer on first pass, it may be that closer to implementation a range of interpretive issues will arise in relation to these rules too.

By Stevie Knight