Port State Control

Signatories to the Paris MOU (blue), Tokyo MOU (red), Indian Ocean MOU (green), Mediterranean MOU (dark green), Acuerdo Latino (yellow), Caribbean MOU (olive), Abuja MOU (dark red), Black Sea MOU (cyan) and Riyadh MOU (navy).

Port 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.

History

In 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 the ILO. After the Amoco Cadiz sank that year, it was decided to also audit on safety and pollution. To this end, in 1982 the Paris 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 - especially flags of convenience that have delegated their task to classification 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),[1] Acuerdo Latino or Acuerdo de Viña del Mar (South and Central America),[2] the Caribbean MOU,[3] the Mediterranean MOU,[4] the Indian Ocean MOU,[5] the Abuja MOU (West and Central Atlantic Africa),[6] the Black Sea MOU,[7] and the Riyadh MOU (Persian Gulf).[8]

The United States Coast Guard verifies that all foreign vessels operating in United States waters 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.

Detention of ship under Port State Control

Under 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.[9] 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):[10]

  1. Deficiencies can be rectified within 14 days for minor infractions
  2. Under specific conditions, deficiencies can be rectified when the ship arrives at the next port
  3. Deficiencies must be rectified before the ship can depart the port;
  4. Detention of the ship

Contract being discharged under detention

Ships 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 frustration.

Contract discharged by frustration

A contract discharged by frustration is well defined in Taylor v Caldwell,[11] 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 party [12] and the contract is therefore discharged by frustration.

A voyage contract can be discharged by frustration if the ship is beyond the control of the party involved in the contract.

According to Texas Company v. Hogarth Shipping Corp,[13] 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.

The contract can be discharged by frustration if the detention lasts long enough for the frustration doctrine to be invoked.[10]

In Jackson v Union Marine Insurance Co,[14] 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.

Self-induced detention cannot discharge the contract through frustration

The contract cannot be discharged by frustration if it is caused by self-induced detention.

The 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,[9] it stated that the major deficiencies are:
1. Certification of crew
2. Safety
3. Maritime Security
4. Marine Pollution and Environment
5. Working and Living Condition
6. Operational
7. Management
These 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.[15]

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.

Short period of detention cannot discharge the contract through frustration

The contract cannot be discharged by frustration if the time under detention is not long enough to provoked the frustration doctrine.

The PSC [15] require 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.

Rationally, 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.

Discharge of contract under detention in PSC usually do not frustrate the voyage contract

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 frustration.

References

  1. ↑ "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 (Viña 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.org
  4. ↑ "Memorandum of Understanding on Port State Control in the Mediterranean Region", as amended 27 November 2006. Available from: http://www.medmou.org
  5. ↑ "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.org
  7. ↑ "Black Sea Memorandum of Understanding on Port State Control", as amended 1 January 2006. Available from: http://www.bsmou.org
  8. ↑ "Riyadh Memorandum of Understanding on Port State Control in the Gulf Region", June 2005. Available from: http://www.riyadhmou.org/
  9. 1 2 Paris Mou (2007), "Deficiencies per major category", Annual Report 2007 - Paris MoU on Port State Control, Month Date, pp.22-23.
  10. 1 2 Özçayir, 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, 520-521
  11. ↑ Taylor v Caldwell [1863] 122 ER 309
  12. ↑ Owen, T. (2009), "Contract Law Concept", [LGT4016] Maritime Law Lecture Note, p.61.
  13. ↑ Texas Company v. Hogarth Shipping Corp (1921) 256 U.S. 619
  14. ↑ Jackson v Union Marine Insurance Co (1874) L.R. 10 C.P. 125
  15. 1 2 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].

External links

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