The Minister of Transportation (“MoT”) has issued a new regulation to establish the standardized framework for the issuance of Port Clearance (Surat Persetujuan Berlayar/”Port Clearance”) and Clearance for Vessel’s Activity (Surat Persetujuan Kegiatan Kapal/“Clearance for Vessel’s Activity”) for Indonesian-flagged vessels, foreign vessels, and non-fishing vessels at Indonesian ports, through the MoT Regulation Number 28 of 2022 on the Procedures for the Issuance of Port Clearance and Clearance for Vessel’s Activities at Port (“MoT Reg 28/2022”). The MoT Reg 28/2022 entered into force as of 23 September 2022 and has revoked the MoT Regulation Number 82 of 2014 on the Procedures for the Issuance for Port Clearance (“MoT Reg 82/2014”).
Below are salient points on the new regulation of the Issuance of Port Clearance and Clearance for Vessel’s Activity at Port, as regulated under the MoT Reg 28/2022:
Arrival Notification
Under the previous regulation i.e. the MoT Reg 82/2014, the vessel owners or operators merely oblige to submit the application to the Harbor Master for the issuance of the Port Clearance.
However, the MoT Reg 28/2022 specifically stipulates the obligation for the vessel owners, operators, or the Master to submit arrival notification to the Harbor Master at the latest 24 hours before the vessel’s arrival at the port. The notification should be submitted along with the: (i) vessel’s particulars (i.e. letters of measurement, vessel nationality certificate, vessel safety certificate, load line certificate/sertifikat garis muat, safe manning certificate, cargo documents, and port clearance from previous port/port of departure); and (ii) vessel’s report (Warta Kapal) that provides information regarding the general condition of the vessel, executed by the Master of the vessel with the format in Example A of the MoT Reg 28/2022’s Attachment.[1]
Obligation for Any Sailing Vessel to Possess the Port Clearance
In principle, both the MoT Reg 28/2022 and the MoT Reg 82/2014 obliged any sailing vessel to possess Port Clearance. However, unlike the MoT Reg 82/2014 which specifically regulated the Port Clearance for fishing vessel to be issued by the Harbor Master in the fishing port, the MoT Reg 28/2022 is silent on the issuance of the Port Clearance for fishing vessel.
Based on our consultation with the Directorate of Fishing Vessel and Fishing Equipment of the Ministry of Marine Affairs and Fisheries, we learned that currently, the issuance of Port Clearance for fishing vessels can still be carried out by the regular Harbor Master. Only the fishing port that has a fishing center (sentra nelayan) are allowed and able to issue the Port Clearance for fishing vessels.
Required Documents and Procedures for the Issuance of the Port Clearance
Previously, the MoT Reg 82/2014 merely required the following documents for the application of the Port Clearance: (i) proof of the fulfillment of vessel’s obligations; and (ii) the operational seaworthiness certificate issued by the fisheries supervisor (for fishing vessel).
The MoT Reg 28/2022 provides additional documents that should be submitted along with the application of the Port Clearance, as per below:[2]
- Master sailing declaration;
- Vessel’s manifest;
- Vessel’s crew list;
- Proof of the fulfillment of vessel’s obligations pursuant to the checklist for the fulfillment of vessel’s obligations; and
- Vessel’s particulars and vessel’s report.
The application for the Port Clearance (along with the required documents) can be submitted through the internet-based electronic information system or manually if such electronic system was not available i.e. to the authorized Harbor Master.[3] Upon the submission of the application and documents, the Harbor Master will conduct an administrative examination prior to the issuance of the Port Clearance.
The MoT Reg 28/2022 also provides that the Harbor Master could reject or may not issue the Port Clearance in the event of: (i) non-fulfillment of administrative requirements; (ii) the existence of a written court order; and/or (iii) weather/sea conditions may endanger the vessel with taking into account the vessel’s type and size.[4]
Cancellation, Revocation, and Exemptions of the Port Clearance
Under the MoT Reg 28/2022, the Port Clearance may be canceled, revoked, or exempted, as follows:
a. Cancellation of the Port Clearance
The Master may refuse to sail and cancel the departure of the vessel that has possessed the Port Clearance if any requirement related to the ship’s seaworthiness has not been fulfilled.[5]
b. Revocation of the Port Clearance
The Harbor Master is authorized to revoke the Port Clearance if there is a written order from the court.[6] The revocation of the Port Clearance should be documented in a minutes of revocation with the form in Example 8 of the MoT Reg 28/2022’s Attachment.
c. Exemptions of the Port Clearance
The Port Clearance can be exempted for the following vessels: (i) war vessels; (ii) state vessels used for non-commercial activities; (iii) vessels used for the benefit of the state based on letters of assignment that are addressed to Harbor Master and issued by the head of the government agencies; (iv) vessel which sail to assist other vessels in emergency/SAR situations; (v) vessel that makes emergency stops at the ports; and (vi) sea trial vessel and/or vessel that is conducting maneuver activity (Kegiatan Olah Gerak Kapal).[7]
Clearance for Vessel’s Activity at Port
The Harbor Master shall provide clearance for any vessel that will conduct the following activities at the Port:[8]
- allow persons to or prohibit persons from boarding the vessel;
- engage in maneuver activity;
- conduct vessel repair;
- conduct sea trials;
- conduct transshipments;
- towing activity;
- conduct tank cleaning activities; and
- unload dangerous goods/special goods/waste associated with dangerous and toxic goods.[9]
The Clearance for Vessel’s Activity is only valid for one activity. Thus, in case the vessel will conduct new activity (in addition to the previous activity that has obtained the Clearance), then a new Clearance (specific for such new activity) will then be required.[10] The application of the Clearance for Vessel’s Activity should be submitted by the vessel’s owners, operators, or Master, through the internet-based electronic information system or manually if such electronic system was not available, to the authorized Harbor Master.[11]
Closing remarks
In our view, the MoT Reg 28/2022 aims to unify the process for granting the Port Clearance and Clearance for Vessel’s Activity at Port.
We also observed that under the regulation, the government endeavor to provide technical regulation regarding the procedure to conduct the vessel’s arrest (which regulated under the Law No. 17 of 2008 on Shipping as lastly amended by Law No. 6 of 2023 on Job Creation) i.e. by giving the authority to the Harbor Master to cancel or revoke the Port Clearance. Nonetheless, the regulation does not provide further on the period of revocation or attempt that can be taken by the shipowners to avoid such revocation (e.g. by providing a certain guarantee).
By the issuance of the MoT Reg 28/2022, the following is now clearly regulated: the vessel that is conducting maneuver activity is exempted from the obligation to obtain the Port Clearance and is only required to obtain the Clearance for Vessel’s Activity.
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[1] Article 3 of the MoT Reg 28/2022
[2] Article 11 paragraph (3) of the MoT Reg 28/2022
[3] Article 11 paragraph (1) of the MoT Reg 28/2022
[4] Article 13 paragraph (2) of the MoT Reg 28/2022
[5] Article 14 paragraph (1) of the MoT Reg 28/2022
[6] Article 15 paragraph (1) of the MoT Reg 28/2022
[7] Article 16 of the MoT Reg 28/2022
[8] Article 18 paragraph (1) of the MoT Reg 28/2022
[9] Article 18 paragraph (2) of the MoT Reg 28/2022
[10] Article 18 paragraph (3) of the MoT Reg 28/2022
[11] Article 20 paragraph (3) of the MoT Reg 28/2022