A dogged win for transparency should help masters and crew comply with port state control regulations on the control of ships in Europe and the UK, Nautilus member and Maritime Consultant Ulrich Jurgens, writes
Port State Control (PSC) inspections are frequently considered by affected masters and crews to be a pain. If, however, you consider them to be free health- and safety checks, inspections might be more appreciated. Although, some will probably say, 'free' depends on where you are in the world.
The International Maritime Organisation (IMO) currently reports nine signed PSC agreements, with the US maintaining the tenth regime and the IMO listing 11 PSC websites. The UK is a member of the Paris Memorandum of Understanding (Paris MoU), which is part of the group of nine.
PSC inspections are supposed to be conducted by following the rule of law. The applicable law is the law of the State carrying out the inspection with the purpose of increasing compliance. The law to be complied with in the UK and the Paris MoU Member States is a mixture of international conventions and European Union legislation. The latter is set out in EU Directive 2009/16/EC.
The great change in those legal requirements after the UK has left the EU and has 'taken back control' is that there is no change. The UK PSC Regulations still incorporate the same EU law as prior to Brexit. In Regulation 12 a reference to the Directive is even to be read as if a reference to a Member State includes a reference to the UK.
To comply, it may come in handy for master, crew and owner to know what to comply with. That does not only apply to knowing the legislation but also to how it is interpreted. If going by the saying that two lawyers mean three opinions every little bit of clarity would help.
The procedures for the control of ships are laid down in Annex VI of the aforementioned EU Directive. It incorporates, and thereby in my understanding make them statutory law, 17 instructions from the Paris MoU but does not reproduce them. The Paris MoU, however, in its online library keeps these instructions confidential. Information is power.
This has bugged me for years – even when I was still working at the Maritime and Coastguard Agency (MCA). If I don't tell you what you must comply with, how are you then going to do just that?
On 11 June 2020 I made a UK Freedom of Information (FOI) Act request to MCA for a copy of the instructions.
The MCA responded on 12 June 2020 that the documents are not available to the general public and I should approach the Paris MoU. Being trained to comply I did just that, on the same day, and asked the Paris MoU by forwarding the MCA answer, but also requested an internal review of the MCA decision.
The Paris MoU informed me on 16 June 2020 that, as the MCA had explained, the instructions were not intended for the general public. The MCA internal review confirmed on 9 July 2020 the confidential character of the incorporated EU legislation.
I also took my case to the European Commission. The Directorate General for Mobility and Transport said on 8 July 2020, with regret, that the disclosure is prevented because the originator of the documents (the Paris MoU) has objected. International relations would not benefit from a decision by the European Commission to release the documents, it said.
The final step before asking Nautilus International and through it the European Transport Workers' Federation (ETF), for official help was to make a so-called 'affirmatory application' to the European Commission's Transparency Unit.
This is where my cynicism was blown out of the water. Despite the time it took to eventually receive copies of the instructions, on 31 March 2021, the democratic system worked. The Transparency Unit even kept me – Mr general public – in the loop throughout the rather lengthy process and apologised for the delay.
Can you now also obtain the PSC instructions? Of course, you can download the Paris MoU documents in the member resources section of the Nautilus website or try the above-mentioned institutions on the way. The Paris MoU has unfortunately still not made the instructions public on its website, but I bet the MCA or the Dutch Inspectie Leefomgeving en Transport will be delighted to satisfy your request.
Knowledge is power. Use it.