by F R Chowdhury
Diversity of business: Shipping is the most international business in the world. The ship may be built in Korea, owned by the Japanese, financed by a German bank, insured in the London market, registered in the Bahamas and managed by a Hong Kong company. The ship may be manned by Indian officers and Filipino ratings. It may now be on time charter with a Dutch company and carrying wheat from Australia to China. The industry is full of diversity. It has to operate under internationally agreed system and procedures acceptable to every State that the ship happens to pass through.
Administration: Maritime Administration is that branch, department or division of the Government that deals with shipping administration. Amongst other things it shall include registration of ship and any mortgage/ lien on the ship, compliance of international treaties and protocols in respect of safety, security and protection of the marine environment including assessment and certification of seafarers (bearing in mind that training may be provided by institutes approved by the Administration). As stated earlier shipping is a diverse business and the administration that deals with shipping has to be equally diverse.
Primary role and function: The United Nations or any of its agencies cannot take up on itself the role of an Administration which still remains the function of a sovereign independent Member State. It is primarily for this reason that a ship has to be registered in a Member State. Some States have restrictive conditions such as ships owned by its nationals can only be registered. Others are quite open and accept ships on its register provided owned by a company registered in the country. Some States have gone beyond that. They would even register ships owned by foreign nationals or even corporate bodies established in a foreign country so long proof of ownership is provided. These flexibilities provide the ship-owners with a choice. Whereas they would not like to register the vessel in a State burdened with bureaucratic requirements, they would also like to avoid a State that has no credibility in the shipping world.
Relations with Classification Societies: In today’s world it is not possible for any State to ensure necessary survey and certification of the vessel by its own full time surveyors. They have to delegate some of the functions to reputable classification societies commonly referred to as recognised organisations. These organisations have their global net-work and can arrange for survey and inspection almost in all major ports of the world. The State being Party to international instruments remain responsible for compliance of the requirement. In other words it amounts to the fact that functions may be delegated but not the responsibilities. So responsible Flag States have to find some mechanism to retain some degree of direct control over their ships and monitor the work performed by the recognised organisations/ societies. This is normally done by an agreement whereby the relevant society remains answerable to the Administration for all statutory work done on behalf of the Flag State and also remains obliged to have all information available at any time. Some of the Flag States also conduct audit of such organisations. With regard to exercising direct control, certain Administrations keep ISM audit and certification to itself. This gives them an opportunity to see how well other jobs are taken care of by the classification society (since ISM covers compliance of all requirements). There are some Administrations who may delegate all functions to the recognised organisation but will have a system of mandatory annual inspection by its approved inspectors around the world. This will be a national requirement in addition to international Convention requirements. Such national inspection would also include check and inspection of Certificate of Registry, Articles of Agreement (Crew Agreement), Crew Accommodation, Official Log Book and ILO related social aspects of the seafarers about which class societies are normally not much interested.
With international bodies and agencies: The first and foremost link will be with the International Maritime Organisation (IMO) which is the UN specialised agency for safety at sea and protection of the marine environment.
With regard to seafarers rights, privileges and other employer-employee matter the Administration will have its link with the International Labour Organisation (ILO). For radio-telecommunication matters, the link will be with the International Telecommunication Union (ITU). The standards relating to health, hygiene and sanitation etc. rest with the World Health Organisation (WHO). There are several other international bodies/ organisations/ agencies involved in different aspects of this diverse industry.
The maritime administration has to also maintain close link and working relationship with a number of NGOs such as ICS, ISF, IACS, BIMCO, SIGTTO, OCIMF etc.
Ministry of Foreign Affairs: As stated earlier shipping and maritime activities are regulated by international treaties and protocols. Such treaties can only be signed by the Head of the State or Head of the Government or the Foreign Minister. Foreign Ministry is the custodian of all such treaties. It is very important for the Maritime Administration to have a close link with the Foreign Ministry (with specific/ dedicated contact point) in respect of acceptance/ accession/ ratification of such instruments.
Ministry of law: A State is governed by the law of the land (and not by international Conventions). The next step is to transpose the provisions of the Conventions into national legislation. The legislation especially the secondary legislation has to be dynamic – keep pace with changes in the international instruments. Close contact and co-operation with the Ministry of Law is essential so that legislation can be updated promptly.
Ministry of Telecommunication: The telecommunication Administration may have different name in different country. In some countries it is known as the Wireless Board and in the UK, it is known as the Radio-communication Authority (RA). They will be the national link with the ITU. They will issue radio licence, allocate call sign, MMSI number and allocate frequencies. They will also examine and issue GMDSS certificates though for its use on merchant ships, an Endorsement by the Maritime Administration will be necessary. Maritime Administration will endorse a GMDSS certificate only when it is satisfied that the holder has the additional knowledge of the Basic Training (STCW), International Code of Signals and Search & Rescue. These two departments will have to maintain very close relationship.
The Radio-telecommunication ministry or department will also maintain and operate coast radio stations (in close co-operation with the maritime administration and the coastguard) to process ships’ radio traffic, operate radio medical service and make meteorological broadcast. The Ministry of Shipping will also have work closely with the Tele-communication Authority on matters relating to AIS and LRIT.
Port authority or Port Department: The operation and management of sea ports will in most cases be within the same ministry as the maritime administration. However, there may be separate authority to run the ports. It is extremely necessary that the two branches of the ministry namely ports and shipping work together in full co-operation. The main function of the port is to provide facilities and sell its services. The ports may be privatised. The maritime administration is essentially a national authority and because of its governmental regulatory functions it has to remain as a Government entity. All marine operations within the port limits have to be in accordance with of the merchant shipping act; and the administration shall oversee such compliance. Now that IMO is dealing with training of pilots and VTS, the port authority will have to work closely with the maritime administration on matters relating to recruitment and training of pilots and VTS operators. The maritime administration has to extend its expertise for handling of IMDG cargoes within the port area. The national port authority or authorities as the case may be will have to work together with the maritime administration to assign places of refuge for ships in distress as required under SOLAS convention. The ministry may assign the head of the port authority as the “Receiver of Wreck” within the port limits but in all likelihood appoint the head of the maritime administration as the “Receiver of Wrecks” in all waters beyond the harbour limits.
The maritime administration may be required to assess and issue security certificate for the port (under ISPS code) on behalf of the Government.
One thing that must be made clear is that inspection of foreign ships under “Port State Control” has nothing to do with the port authority. It is to be undertaken by the administration of the State to which the port belongs. The administration has to receive list of vessel movement from the port authority so that they can plan PSC inspections.
Custom House: Custom House in a sea-port plays a very important role in shipping. All “shipping bills” (for shipment of goods on board a ship) are passed by the Custom House. Similarly all imported cargoes are cleared through the Custom House after payment of necessary duty/ tax. Ships also obtain their inward and outward clearance from the Custom House.
The Coastguard: Most States will have a Coastguard as a paramilitary organisation primarily to carry out the State’s obligation to provide humanitarian search and rescue. The Coastguard will also combat and contain any accidental spillage and damage to the environment. The Coastguard will act on the advice of the maritime administration to enforce the right of intervention beyond its own waters when so required. The Coastguard will patrol and protect the sea resources (including fishing) of the country within the EEZ (Exclusive Economic Zone). In some countries the Coastguard may also be entrusted with the responsibility of maintaining navigational aids (light house, buoy, beacons etc.). The Coastguard in most countries will be under the Department of Transport but in some countries it may be within the Home Ministry or even in the Ministry of Defence. The nature of job requires a close co-operation and co-ordination with the maritime administration.
The Government must have a contingency plan to deal with any marine emergency within its waters or close to the coast that may eventually have an effect on the country. It is quite possible that the head of the maritime administration or the head of the coastguard may be nominated as the person to act on behalf of the Government. Such unified command (with all resources at the disposal of such person) removes all confusion and results into well co-ordinated action. In the UK, such person is known as SOSREP (Secretary of State Representative).
The Government may also utilize their services in matters pertaining to port security.
The Navy and the MOD: It is quite common in many countries for the Navy to conduct hydro-graphic survey of the coast and prepare charts and nautical publications including tide tables. It is quite likely that the meteorological department will be under the MOD who will have to arrange for regular broadcast through the coast stations. These functions are now covered in chapter V of the SOLAS Convention and the maritime administration will have to coordinate all these activities to ensure compliance of SOLAS. The Navy may have to also provide support or assistance to the Coastguard for SAR and also for intervention in high seas when required.
Ministry of Health or Port Health Department: Normally the Ministry of Health will have a special wing known as the Port Health Department. The maritime administration will have to work in close co-operation with the Port Health Department on the following matters:
i) Checking shipboard health, hygiene and sanitation; Ascertain need for deratting or fumigation (ILO-147 & 164);
ii) Issue of Ship’s Sanitation Control or its Exemption Certificate; (International Health Regulations 2005);
iii) Issue of Seafarer’s Medical Fitness Certificate; (Set standards for medical test and approve a panel of authorised doctors) – ILO-73, STCW-I/9 and MLC-2006;
iv) Approve a panel of marine pharmacist to check and refurbish medical stores on board and issue certificates (ILO-164).
Ministry of Food and Agriculture: In some countries fisheries may be a separate ministry by itself or may be with livestock. In most other countries fishery will be a part of the ministry of food and agriculture. It is sea fishing with which the maritime administration will have lot to do.
Fishing as a resource is a policy matter for the FAO (Food and Agriculture Organisation) at international level. At national level fisheries as a policy for preservation, protection and planned exploitation will be looked after by the ministry in charge of fisheries. They will also fix the TAC (Total Allowable Catch) from time to time to ensure healthy growth of fishing stock within the EEZ (Exclusive Economic Zone). The size of the national fishing fleet will be determined accordingly. It is for this reason that the maritime administration will register fishing vessels that are licensed by the fisheries department. The maritime administration shall also be responsible for safety at sea and protection of the marine environment through usual process of survey and certification of the fishing vessels.
In respect of training and certification of sea-going fishermen, the maritime administration is concerned with the subjects of Navigation, Engineering, Seamanship, Stability, Communication, Safety and Environment. The professional aspect of fishing such as the recognition of fishing grounds, use of fishing gears and equipment, fishing techniques, fish processing, preservation and hygiene are matters for the fishery department. The examination and certification may be jointly conducted by the two departments (with the Maritime Administration playing the dominant role) or first by the fisheries department on the art and skill of fishing and then the final part of the examination by the marine department. In some cases the mandatory sea-service on fishing vessels will be considered to have met the fishing part of the examination and the rest will be conducted solely by the maritime administration.
Ministry of Interior/ Home Affairs (Registrar of Birth, Death and Marriages): There was a time when children born on a ship used to get the nationality of the Flag of the vessel. That is no more the case. The nationality is now based on parental root. However, a ship is expected to fill in the form with details (on ships under certain Flags it is also necessary to make entries in the OLB – Official Log Book) and forward (through the maritime administration) the same to the RBDM of the Flag State who in turn shall forward the documents to the RBDM of the country of nationality of the parents. Copies of documents made on the ship are also given to the parents of the new born child so that they can pursue the matter on their own.
In case of a death on board a vessel entries are made in relevant forms (also in OLB) and forwarded to the RBDM of the Flag State who in turn will forward the same to RBDM of the nationality of the deceased person. It is also necessary for the ship to notify the nearest diplomatic mission of the country concerned that their national died on board. On a passenger ship where there is a doctor on board, a death certificate may be issued by the doctor. In other cases the body should be retained on board until arrival next port where a post-mortem should be conducted. In case of the deceased being a seafarer, subsequent actions should be taken in accordance with the provisions of the Agreement (Article of Agreement/ Crew Agreement) and in consultation with ship’s P&I Club.
Most countries do not allow conduct of marriages on board ships and the master of the ship will have no role in this respect. Because young people in love look for exotic places, there is good demand for such facilities on board cruise ships and some countries do allow such ceremonies to be conducted on board. The national RBDM may authorise the ship-master to act as a registrar and the ship issues the marriage certificate (copies given to married persons and main copy forwarded to national RBDM. The ceremony on board will not involve any religious rituals but simple pledges and declarations in front of witness.
Ministry of Interior/ Home Affairs (Law enforcement – Police): Any crime committed on board will be considered to have been committed in the Flag State (the ship being the extended floating territory). However, any serious crime committed on a ship in a port, in all likelihood the Port State will take direct action. In other cases the master will be required to inform authorities in the Flag State who may request the next Port State to take action or to assist in extradition of the suspected criminals. In some countries the law may allow jurisdiction over crimes committed at sea if that port happens to be the first port of call (unless the Flag State expresses its interest to deal with the matter) in which case the master should co-operate in the greater interest of justice.
National Merchant Shipping legislation should have clear provisions on all matters discussed above.
Ministry of Energy: Offshore exploration for oil and gas is comparatively a new development that started about 50 years back. It was about the same time that IMO came into being. Because there was no other UN agency or inter-governmental body to look after or regulate this new industry, IMO conveniently took over the role as it does for safety at sea, prevention of pollution to sea and protection of marine environment. Today IMO got safety guidelines for construction of rigs, offshore supply vessels, drilling and other Mobile Offshore Units (MOU), their safe operation and protection of the environment. Most countries have also developed code of construction and operation of “Stand-by Vessels” which remain within vicinity of such rigs or units for possible evacuation of personnel in an emergency. IMO has even adopted a resolution A-891 that deals with manning and training of all MOUs. The national maritime administrations of coastal states have automatically inherited additional responsibilities that fall within IMO remit. The industrial and economic aspects of exploration will still remain a matter for the ministry in charge of energy but they will have to ensure that those licensed to conduct the exploration and production comply fully with safety and environmental standards set by the IMO and enforced by the coastal state’s maritime administration. Now there are MOUs registered in one country and operate in another coastal state. The IMO standards are primarily enforced by the Flag State and the Port State Control (PSC) is exercised by the coastal state. The Flag State Administration in all likelihood utilise the services of the reputable international classification societies to carry out most of the functions related to offshore industry. This is another case for co-operation amongst the three parties – ministry of energy, maritime administration and the classification societies.
Ministry of industry: The ship building and repair facilities will fall into this group. For integrated development of maritime activities to make a centre of maritime excellence it will be necessary for the maritime administration to provide all the technical support for growth of the industry in its right perspective. The marine engineering training programme (under the approval of the maritime administration) for the future sea-going engineers will have to be conducted in close co-operation with the shipyards and workshops.
The maritime administration will also have to work in close co-operation with the ministry of industry to ensure that ship breaking is conducted in compliance with internationally agreed guidelines.
Ministry of Labour and Social Welfare: Most of the developing countries are likely to have a ministry to protect the rights of the working people and look after their welfare. In the labour (seafarers) supplying countries within this particular ministry they are also likely to have a Directorate of Seafarers’ Employment and Welfare. This is that organ of the Government with responsibilities to implement the ILO provisions (Conventions and Recommendations) relating to social aspects, rights and welfare of the seafarers.
However, most countries have now brought this section of the Government (dealing with seafarers’ employment and welfare) within the Maritime Administration. This is a convenient way of dealing with all matters in an integrated way. In other cases it is very important for the Maritime Administration to work in close co-operation with the department dealing with seafarers’ welfare (including boarding/ hostel facilities, recreational facilities, pension benefits and implementation of other labour conditions etc.). The ILO tri-partite meetings should be attended accordingly (representing the Administration, the Employers i.e. the Association of Ship-owners and the Employees i.e. Seafarers’ Union). The Collective Bargaining Agreement must be signed by the union that represents the highest number of seafarers.
The ILO-MLC-2006 Convention is a single document taking on board almost all matters within the domain of the ILO. Since maritime administration is the national governmental agency to ensure compliance of all international standards by national ships, it makes sense to put this matter also with maritime administration for necessary survey and certification. However, compliance status report must be forwarded to ministry of labour who can transmit the same to ILO.
Ministry of Environment: In the international sector the International Maritime Organisation (IMO) looks after marine environment. However, to the global context, it is the Nairobi based UNEP (United Nations Environment Programme) that looks after the global environment. The UNEP has drawn up some “Regional Seas Programme” in which it works in close co-operation with the IMO. Though there is a separate secretariat at IMO for the London Dumping Convention, still both IMO and UNEP work together on these matters. Development of ship-breaking facilities must take place within the safety and environmental limits permissible for any shore-based industry. It must not endanger environment. Obviously the national maritime administration has to maintain its national link with the ministry or department for environment.
Ministry of Education: Maritime education and training is nothing other than learning and skill which comes within the broader domain of education. One might call it vocational education or professional training but the fact remains that the custodian of the shipping industry that is the maritime administration has to set the standards and ensure its compliance. It is done in conformity with the provisions of the International Convention on the Standards of Training, Certification and Watch-keeping for Seafarers 1978 as amended. This is an international instrument adopted through the IMO and the Member States have to submit report to the IMO.
Maritime training institutes could be specific and exclusive for maritime training. They could also be part of multi-discipline Polytechnic institutes. In either case the maritime training have to be supervised, monitored and approved by the maritime administration because the administration has to issue or endorse the final document. It is also quite common in many countries to include the IMO-STCW syllabus as part of a technical education (along with a few other essential elements) leading to a degree or diploma awarded through a University or a Technical Board. The close working relationship between the maritime administration and the education department is vital.
Public consultation – union/ association etc.: For a healthy integrated development of the maritime and shipping industry it is necessary that all players within the industry must be consulted from time to time. In all secondary legislation in the UK, the Secretary of State has to make a declaration that s/he has consulted all concerned. The International Convention on Freedom of Association and Protection of the Right to Organise (ILO No. 87 of 1948) and the Right to Organise and Collective Bargaining Convention (ILO No. 98 of 1949) are relevant. There will be seafarers union and yet there may be separate officers’ association. There may be national ship-owners’ association and even association of training centres. They all should be consulted before important changes are made.
Law of the Sea Convention (UNCLOS-82): The reason it is written separately as a Convention is because it is the paramount umbrella convention on all sea related matters. This is a Convention that can, not only be signed by States, but also by other UN organs and agencies including regional organisations. In most countries the ultimate responsibility in respect of this Convention will probably be in the President’s Secretariat or the Prime Minister’s Secretariat (depending on who is the head of the government). This is because of the diversity of the Convention where it will be necessary for all other ministries or departments to follow the guidelines given by the Government. UNCLOS-82 deals with: Territorial sea, Contiguous zone, Straits used for international navigation, Transit passage, Innocent passage, Exclusive economic zone and Continental shelf, Archipelagic States, Status of Artificial Islands, High seas, Role and jurisdiction of Flag State/ Port State, Conservation and management of the living resources of the high seas, Right of access of land-locked states to and from the sea and freedom of transit, The area – development of the resources of the area – common heritage of mankind, The authority and its operation, Settlement of disputes – International Tribunal for the Law of the Sea, Protection and preservation of marine environment, Marine scientific research – regional and international co-operation, Basic conditions of prospecting, exploration and exploitation and many other subjects in detail. Two important institutions have already been set-up. The International Tribunal for the Law of the Sea is located at Hamburg, Germany and the International Sea-bed Authority is located at Jamaica.
Some of the provisions relate directly to national interest. Every coastal state is expected to determine a base line at the low water mark along its coast and declare its territorial water limit 12 miles seaward from the base line. It can also declare a Contiguous zone for another 12 miles seaward. However, the most important thing a coastal state should be concerned with is the declaration of its EEZ (200 miles) or Continental shelf because it gives the sole right to coastal state to harness all economic resources that includes fishing, oil and gas exploration, extraction of mineral resources from the sea-bed within the EEZ and even using and making electricity out of water waves or extracting any valuables from the water or sea-bed within the EEZ. However, where such delimitation overlaps a neighbouring coastal state’s similar claim the matter is normally resolved by drawing a line that would equally divide the overlapped part. In some cases this may also be based on equity (further guidance given in the Convention).
States being Parties to the Convention are required to publish maps and charts and, give wide publicity of their respective jurisdiction. As a matter of fact the process of ratification requires transposing the provisions of the Convention into national legislation (primary or secondary). The charts and maps (with geographical coordinates) should provide back-up support to such legal claim. A copy of such chart or map should be officially deposited with the Secretary General of the United Nations (official depositor for the Convention). Any dispute with neighbouring states should be resolved mutually in accordance with the guidelines provided in the Convention. Failure to resolve the dispute, it could be heard in the International Tribunal for the Law of the Sea within a period of ten years when the Convention enters into force for the respective state.
“Area” is the term used to define sea areas beyond territorial or economic jurisdiction of any state. Any activity of commercial benefit (such as exploitation of resources of deep sea-bed) has to be licensed by the “Authority” (International Sea-bed Authority).
Conclusion: There are lot of matters that cannot be put into legislation but there should be documented system and procedures for the same. In some countries these are referred to as “Rules of business”. Every ministry or department should have permanent instructions as to how it should co-ordinate various matters with other ministries, departments or directorates. The channel of communication can be simplified by a number of direct contact points. The new concept of governance requires direct contact and action instead of age-old bureaucratic system. It is important to know and understand that the IMO audit team (for Flag State audit) will not go to ten different ministries but would like to know from the Administration (that deals with maritime affairs) as to how the obligations of a Flag State are complied with. In other words the Maritime Administration will have to be the focal point for all maritime related activities.
The Government should create a number of autonomous bodies and authorities with permanent delegation of all operational functions so that highest degree of operational efficiency can be achieved. In case of maritime administration such delegation should also include powers to grant exemption or determine equivalence or similar other functions. However, the heads of such bodies or authorities must be accountable and answerable to the Government (relevant minister). All matters beyond the scope of normal operational duties that require policy decision must be referred to the Government (minister).
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