Legal Alert: New Implementing Regulation for the Supervision of Foreign Vessels in Indonesian Ports
Author: Bama Djokonugroho, Stefanny Oktaria Simorangkir
On March 2018, the Directorate General of Sea Communication (Seacom) issued Seacom Regulation No. HK.103/1/9/DJPL-18 regarding the Implementation of Safety and Seaworthiness of Foreign Vessel Inspection (“Seacom Regulation 103-2018”). The Seacom Regulation is intended to serve as the implementing regulation for Ministry of Transportation Regulation No. PM 119 of 2017 regarding Port State Control Officer (PSCO) of Safety and Seaworthiness of Foreign Vessel (“PM 119/2017”) which was enacted in December 2017.
As reflected in its consideration, PM 119/2017 may serve as a guideline for the implementation of IMO Resolution A. 1052 (27) concerning Procedures for Port State Control (IMO Resolution), in connection with the Memorandum of Understanding on Port State Control in the Asia-Pacific Region dated 1 December 1993 (Tokyo MoU). Further, the regulation is also part of Indonesian compliance to several conventions (related to safety and seaworthiness of vessels) that has been ratified by the Indonesian government, including inter alia International Convention on Load Lines 1966, Convention on the International Regulations for Preventing Collisions at Sea, Convention for the Safety of Life at Sea 1974 and International Convention on the Control of Harmful Anti-fouling System on Ship 2001 (collectively referred to as “Convention”).
In principle, Seacom Regulation 103-2018 set out the guidelines of procedure for inspection and certification for the PSCO.
Who is the PSCO?
A Port State Control Officer (PSCO) is an official/officer at Seacom who has the obligation to supervise the safety and seaworthiness of foreign vessels in accordance with the Convention’s regulation.
The PSCO is appointed by the Harbor Master and will be inaugurated by Seacom.
PSCO’s obligation is delegated from the Harbor Master’s obligation to supervise the safety and seaworthiness of vessels, as stipulated under Article 208 of Indonesian Law No. 17 of 2008 concerning Shipping (“Shipping Law”).
Article 8 of PM 119/2017 regulates that a PSCO shall provide an inspection report/result to the Master and within 2×24 hours after the PSCO has concluded the inspection, PSCO shall provide the inspection result to the Directorate of Sea and Coast Guard of Seacom. PM 119/2017 also regulates the code of conduct and qntlistration sanction for the PSCO in conducting its authorities.
What type of vessels are subject to the Regulations?
PM 119/2017 and Seacom Regulation 103-2018 regulates that a PSCO has the authority to supervise and conduct inspections over any type of foreign vessel at any port in Indonesia.
Specifically, under Article 28 of PM 119/2017 in certain circumstances, the Harbor Master is authorized to conduct safety and seaworthiness inspections over Indonesian flagged vessels at Indonesian ports. Such circumstances include: (1) report from crews of the vessels, pilotage officer, or other states; (2) clear indication that the safety and seaworthiness of equipment is non-functional and/or the vessel’s condition does not meet the standards of the Convention’s regulation; (3) request from the owner/operator/Master of an Indonesian vessel that will engage in an international voyage; and (4) the Harbor Master’s consideration in the issuance of Port Clearance for the Indonesian vessel that will engage in an international voyage.
What are grounds for inspection (conducted by a PSCO) to ensure safety and seaworthiness of foreign vessels?
The inspection shall be conducted pursuant to the convention that regulates Port State Control (PSC) which is based on New Inspection Regime (NIR) and Clear Grounds.
- Inspection based on NIR
Under the Tokyo MoU, the vessels will be classified into the following (three) ship risk profiles: Low Risk Ships, Standard Risk Ships and High Risk Ship, based on the elements and using historical data of inspection in the region over a three-year period, including inter alia Performance of the (state) flag of the ship (e.g. Black or White List of flags, status of completion of the Voluntary IMO Member State Audit Scheme [VIMSAS]), type of ship, age of ship, and number of detention(s).
Pursuant to Article 4 paragraph (3) of PM 119/2017 and in accordance with the Tokyo MoU, a vessel is due for periodic inspection based on the following schedule from its previous/latest inspection: (a) 9 to 18 months for Low Risk Ships, (b) 5 to 8 months for Standard Risk Ships, and (c) 2 to 4 months for High Risk Ships.
Article 5 paragraph (1) of PM 119/2017 regulates that an inspection based on NIR will include an initial inspection and a follow up/reinspection.
2. Inspection based on Clear Grounds
Article 4 paragraph (4) of PM 119/2017 stipulates that a PSCO may conduct an inspection based on the following:
- report from the crew of the vessels, pilotage officer, or other countries;
- request/information from organization and/or interest country; and/or
- physical inspection by the Harbor Master and/or PSCO over the general condition of the vessel.
Additionally, according to our consultation with a relevant official at Seacom, based on findings from a PSCO at a previous country/port regarding deficiency issues of the condition of a vessel (with requirements stipulated under the Convention’s regulation), an Indonesian PSCO may conduct inspection based on Clear Grounds.
Inspection based on Clear Grounds shall be conducted with verification of facts to the Master. In case the facts are verified, the examination will subsequently proceed with the initial inspection.
What are the steps/procedures of inspection conducted by a PSCO?
- Initial Inspection
The initial inspection includes both qntlistrative and physical inspections. An qntlistrative inspection will be conducted by PSCO under the presence of the Master, which includes opening meetings with the Master or Substitute Master and validation of a vessel’s certificates and its particulars based on the type of vessel and crew certificates, as listed in the form of Notification of Orderly Inspection attached in Appendix I of PM 119/2017. Furthermore, a physical inspection will be conducted by PSCO to ensure the information, as stipulated under the vessel’s certificates and its particulars, are in accordance with the conditions of ship construction, operation of vessel’s tools and equipment, and crew’s safety/well-being. Master or Crew of the vessel may also attend the physical inspection.
Seacom Regulation 103-2018 further stipulates details of items that will be inspected during qntlistrative and physical inspections.
The results of qntlistration and physical inspections will be presented at the closing meeting and provided to the Master of the vessel. The following actions may be implemented based on the results of the inspections:
- in case the results of the inspection showed that the vessel has properly fulfilled its requirements, as stipulated under the Convention’s regulation, the results of the examination will be stated as No Deficiency and the PSCO will submit the result in the Form A PSC report, as attached in Appendix I of PM 119/2017;
- in case the results indicate that there is deficiency in meeting the requirements, as stipulated under the Convention’s regulation, the results of the examination will be stated as Deficiency;
- in case the results indicate that there is deficiency in meeting the requirements, as stipulated under the Convention’s regulation, IMO Resolution, and the Tokyo MOU, the results of the examination will be stated as Detainable Deficiency. Results of inspections stated as Detainable Deficiency will also be provided to the flag state of the vessel.
2. Follow up/re-inspection
In the event the results of the inspection is stated as Deficiency and Detainable Deficiency, the PSCO may conduct a follow up/re-inspection to ensure elements of deficiency and detainable deficiency cited in the results of the inspection are rectified and/or fulfilled in accordance with the Convention’s regulation.
The follow up/re-inspection of vessels with Deficiency-related results can be conducted based on (1) findings from other ports that have not been rectified and/or fulfilled and/or (2) findings from an initial inspection that should be rectified and/or fulfilled before the vessel departed from the port.
The follow up/re-inspection of vessels with Detainable Deficiency-related results can be conducted based on findings in the initial inspection that must be rectified and/or fulfilled before the vessel departed from the port.
To ensure the rectification of deficiencies during the follow up/re-inspection, the PSCO may request validation from a Recognized Organization or from the flag state.
What are the consequences for results of inspections citing Detainable Deficiency? Is there a right of complaint against the PSCO’s decision to stated Detainable Deficiency to the results of the inspection?
The consequences for Detainable Deficiency is the detention of the vessel by a PSCO.
In the event the results of the inspection indicates Detainable Deficiency, a PSCO will issue an inspection report in the Form A PSC Report, Form B PSC Report, and Notification of Detention to the Master, as well as Subject Information Detained of the Vessel to the flag state. Template for the mentioned documents are attached in Appendix I of PM 119/2017.
The vessel (its owner or operator) has the right to submit a complaint against the PSCO’s decision pertaining to Detainable Deficiency. Such actions can be completed by requesting a follow up/re-inspection, as regulated under Article 7 paragraph (5) of PM 119/2017. In such case, the vessel (its owner or operator) will be imposed with a Non-Tax State Revenue tariff to proceed with the follow up/re-inspection process in the amount of USD350 pursuant to Government Regulation No. 15 of 2016 regarding Type and Tariff of Non-Tax State Revenue at Ministry of Transportation.
In case the follow up/re-inspection related to Detainable Deficiency has been concluded and/or fulfilled in accordance with the Convention’s regulations, the PSCO will submit the report in the Form Release of Detention, as attached in Appendix I of PM 119/2017.
Additionally, pursuant to Article 11 paragraph (2) of PM 119/2017, the flag state may submit a report to the panel of Tokyo MoU’s state to conduct a review (Detention Review Panel) in order to obtain clarity with regard to the procedure and technical aspect used by the PSCO in stating the results of the inspection.
The website of Tokyo MoU stated that a request for review may be sent to the secretariat ([email protected]) within 120 days from the date of release of detention (i.e. from the date the PSCO issued the Notification of Detention to the Master).
We noted that PM 119/2017 and Seacom Regulation 103-2018 aims to develop safety in the shipping industry, as well as improve the quality of public services for the user of transportation services – specifically shipping companies – by providing clear regulation regarding the PSC and PSCO. PM 119/2017 and Seacom Regulation 103-2018, which adopts the inspection procedures as regulated under the Tokyo MoU, also reflects Indonesia’s compliance with the Tokyo MoU and Convention’s regulations and its commitment to strengthen cooperation in the Asia-Pacific region.
However, based on our consultation with a relevant official at Seacom, we were advised that currently the implementation of inspection by the PSCO is prone to intervention from a third party, e.g. intervention from an agent of the foreign vessel in the enforcement of inspection and its results/findings from the PSCO.
In order to minimize such problems, Seacom may want to increase the socialization of PM 119-2017 and Seacom Regulation 103-2018 to the stakeholders in the shipping industry (shipowners, ship agents, ship operator, P&I) for them to better understand the standards and mechanisms of inspection applied by the PSCO as a key part of the effort by the Indonesian government to improve compliance with the Convention and implementation of the Tokyo Mou. Moreover, the inspection will be conducted professionally by competent officers/PSCO in accordance with procedures and requirements under PM 119-2017 and Seacom Regulation 103-2018.
Lastly, the stakeholders should also comprehend that the port state control is an internationally agreed regime. Therefore, ports in other countries also have their own respective PSCO and the vessels’ data are compiled using computer-based systems (e.g. the Asia Pacific Computerized Information System/APCIS). In this regard, if the agent of a foreign vessel refuses/declines the inspection based on NIR or Clear Grounds by the PSCO at any port in Indonesia, the vessel will still be subject to the inspection conducted by the PSCO at ports in other countries that are parties to the Convention.