A major purpose of this bulletin is to ensure that the
officers and crews of the Vanuatu fleet are familiar with the country's national
legislation in accordance with the requirements of the 1995 Amendments to the
STCW Convention. The bulletin is also intended to outline some of the
responsibilities of individuals and organizations within the shipping industry
with whom fleet personnel have contacts in the course of their duties.
In meeting these objectives, every attempt at clarity has
been made but the situation is complicated since the individuals and
organizations have responsibilities to more than one other individual or
organization. Furthermore, there are two sides to every contract and
relationship and in each case, these responsibilities are mutual. For example, a
shipowner has responsibilities to various individuals and organizations but they
have reciprocal responsibilities to him.
A major purpose of this bulletin is to ensure that the
officers and crews of the Vanuatu fleet are familiar with the country's national
legislation in accordance with the requirements of the 1995 Amendments to the
STCW Convention. The bulletin is also intended to outline some of the
responsibilities of individuals and organizations within the shipping industry
with whom fleet personnel have contacts in the course of their duties.
In meeting these objectives, every attempt at clarity has
been made but the situation is complicated since the individuals and
organizations have responsibilities to more than one other individual or
organization. Furthermore, there are two sides to every contract and
relationship and in each case, these responsibilities are mutual. For example, a
shipowner has responsibilities to various individuals and organizations but they
have reciprocal responsibilities to him.
The Republic of Vanuatu's maritime legislation is contained
in the Maritime Act Cap 131 and the Maritime Regulations Order No.25. Copies of
these instruments have been made available to all shipowners and to each newly
registered ship since 1991. Additional copies are available on request.
Authority for its implementation is vested in the Commissioner of Maritime
Affairs based in Vanuatu and Deputy Commissioners based in England, Greece,
Japan, Hong Kong, Singapore, Vanuatu and the USA. However, the immediate day to
day responsibility for the safety and pollution matters covered in this bulletin
rests with the Vice President Maritime Safety (VPMS)/Deputy Commissioner, based
in New York where the 24 hour rollover contact telephone number for all
incidents including port State control interventions is:
Deputy Commissioner of Maritime Affairs c/o Vanuatu
Maritime Services Ltd. 42 Broadway, Suite 1200-18 New York, New York
10004 email:
In explanation of (a)
above, Conventions are treaties between countries who mutually agree to observe
the regulations and other provisions prescribed in them. The most important
safety (e.g. SOLAS) and pollution prevention (e.g. MARPOL) instruments fall
under the auspices of the International Maritime Organization (IMO). Each
signatory to these Conventions is responsible to other signatories collectively
(i.e., to IMO) for complying with their provisions. A list of the instruments
applicable to Vanuatu ships is given in the Annex.
These instruments are being continually amended and the
legislation includes the reciprocal responsibility for Vanuatu to periodically
publish details of the amendments to these Conventions and Agreements in order
that the ships can be maintained in accordance with all updated requirements.
This information on future requirements is published in Vanuatu's system of
circulars, safety bulletins and newsletters which include an IMO Calendar of
future legislation.
A list of all the ship
certificates which the Conventions require according to the type of ship was
included in Vanuatu Maritime Bulletin VMS MB 107 on Port State Control. These
certificates, if valid, should be sufficient for a vessel to trade since under
the Convention system, every country's ships should comply with the requirements
of the Conventions according to the size, type and age of the ship. Countries
should not apply requirements above those of the Conventions to foreign ships
although they may do so for their own fleet. However, some countries, ostensibly
with the objective of providing additional security for their citizens but at
the expense of their adherence to the Conventions, impose additional
requirements. In most cases, these additional requirements are well publicized
and owners can act accordingly. Unfortunately, this is not always so. In such a
case, the VPMS/Deputy Commissioner should be informed immediately in order that
the matter may be taken up with the relevant authority and other ships informed
of the practice.
Regarding the seaworthiness requirement of (b) above,
classification with one of the full members of the International Association of
Classification Societies (IACS) together with compliance with the instruments
referred to in (a) is accepted as a satisfactory standard of seaworthiness under
Vanuatu legislation. Additionally, when an owner requests a waiver of age for
registration of a vessel, a general condition survey is mandatory.
Vanuatu ensures that
the standards are being maintained by employing over 250 inspectors world wide
to conduct non-mandatory inspections. During 1995 approximately 90% of all
internationally trading vessels, excluding offshore supply vessels, were
inspected. Under Vanuatu's legislation, shipowners and ships' personnel are
required to present their ships for inspection and afford full assistance to the
inspectors.
In spite of the
foregoing comments, the primary responsibility for ship safety rests with the
shipowner exactly as it did before international regulations were introduced.
Every new regulation introduced gives him a more prescribed manner in which he
must maintain or enhance the safety of his ship. Compliance with the regulations
does not guarantee safety. A seaworthy ship will be safe if the hatches are open
in fair weather but unsafe with them open in heavy weather. Hence, the shipowner
must employ seafarers competent to operate his ships safely. As in the case of
ships' structures and equipment, IMO's requirements are also becoming more and
more prescriptive in the case of personnel education and training e.g. under the
1995 Amendments to the Standards of Training, Certification and Watchkeeping
Convention (STCW 95). In addition, non-prescriptive legislation is being
introduced through the International Safety Management (ISM) Code which was the
subject of Vanuatu Bulletin VMS MB 106. Whilst the ISM Code is intended to
represent good management practice (including anticipation of all possible
eventualities) it poses implementation difficulties and potential legal problems
for the shipowner in the event of a casualty.
In respect of the prescribed reports referred to under (c)
above, the shipowner or master is required to immediately inform the VPMS/Deputy
Commissioner whenever a casualty results in: loss of life; injury causing any
persons to remain incapacitated for a period in excess of 72 hours; stranding or
grounding; material damage affecting the seaworthiness or efficiency of a ship;
or actually physical damage to property in excess of US $50,000.
The legislation also prescribes that the owner and his
representatives must co-operate fully in any marine investigation. Failure to do
so may result, in respect of the ship directly involved or any other ship of the
same owner, in penalties which include: monetary fines; revocation or suspension
of the Certificate of Registry; or refusal to accept registration or
re-registration. Furthermore, the legislation also requires licensed officers or
certificated personnel to co-operate (see "Investigations and the Obligation to
Co-operate").
Vanuatu gives every
assistance and encouragement to its shipowners to meet its standards and their
responsibilities and the great majority respond positively. Non-compliance risks
fines and other penalties with the ultimate sanction of deletion from the
register. The need to impose penalties is rare but, in 1995, two ships were
deleted from the register whilst one additional vessel responded positively
during a one year probationary period.
Shipowners may employ Classification Societies to conduct
surveys for statutory and non-statutory (i.e. practical) purposes. The practical
purposes include "classing" the ship as meeting the society's standards to
facilitate insurance and to obtain expert services to maintain the ship's
performance and protect their assets.
For statutory purposes,
i.e. surveys for issue of a statutory certificate (International Load Line
Certificate, Cargo Ship Safety Construction Certificate, Cargo Ship Safety
Equipment Certificate, etc.), shipowners may only employ those Classification
Societies approved by the flag State. This restriction is because, under the IMO
Conventions, flag States may (all do so) delegate survey functions to
"recognized organizations" (generally classification societies) but neither they
nor their shipowners may delegate their responsibilities for safety.
Consequently, Vanuatu is selective and recognizes only those societies which
meet IMO's Guidelines.
From the above
discussion, it will be noted that the society has responsibilities to both the
flag State and to the shipowner but this should not result in a conflict of
interests. It is, however, essential that the responsibilities of, and the
responsibilities to, the societies are clearly defined. In Vanuatu's case, the
authorization to carry out functions is included in a comprehensive formal
agreement which specifies its policy of ensuring that its ships are both safe
and seaworthy and defines how its surveyors can assist in carrying out this
policy and meet the requirements of the Conventions. To enable the surveyors to
fulfil their responsibilities they are: empowered to board any ship to undertake
a general inspection without permission; given clear guidance regarding
interpretations of the regulations, equivalent solutions and provision of advice
to the Commissioner in the event of an application for an exemption; authorized
to take action whenever the ship does not comply with its certificates or its
manning is deficient in respects required by its Safe Manning Certificate; and
to verify that all personnel hold the certificates prescribed by the
Commissioner.
The responsibilities to
the classification society include, where relevant, those of the master,
shipowner, port State control officers, to call in a surveyor whenever either
classification or appropriate statutory requirements are not met. Vanuatu's
Deputy Commissioners have also accepted the duty of regularly consulting the
societies and inviting their surveyors to Vanuatu's Safety Seminars held in New
York and overseas.
As indicated earlier, under the Convention system the flag
State is responsible for enacting national legislation which covers the
Conventions' requirements and for ensuring that its shipowners comply with this
national legislation. The flag State is assisted in this task by the
classification societies who may be authorized to conduct surveys and issue
statutory certificates on its behalf.
It is recognized by IMO
that a flag State cannot maintain a presence in all foreign ports - in fact most
flag States have no overseas representation. Consequently, the Conventions
provide that ships in a foreign port may be subject to inspections by Officers
duly authorized by the port State (see Vanuatu Bulletin VMS MB 107 on Port State
Control). In brief, the responsibility of the port State control officer (PSCO)
is to follow the provisions of the Conventions. If the port State decides to
conduct an inspection, this should be limited to document examination (e.g.
statutory certificates, oil record book, officers' certificates) unless the PSCO
has "clear grounds" for believing either that the condition of the ship and its
equipment are not in accordance with the certificates or, due to specified
reasons, the ship's personnel may not be competent to perform their duties.
In such cases, the
Conventions require that the PSCO informs the shipowner forthwith. Bringing the
defects to the shipowner's notice relieves the PSCO of responsibility for the
ship's subsequent safety. Conducting a full inspection in the absence of "clear
grounds" (and thus deciding that the certificates issued by, or on behalf of,
the flag State do not represent that ship complies with the Conventions)
immediately incurs responsibility. For this reason experienced PSCOs inform the
shipowner and, if the defects involve class items, the classification society
surveyor.
To ensure that all concerned are aware of their mutual
responsibilities, Vanuatu's legislation requires that Articles of Agreement
between the master and other ship's personnel are signed and adhered to by both
parties to the Agreement. In view of their respective responsibilities, the
Articles provide that the shipowner and master may issue such rules and
regulations as may be necessary for the safe and proper operation of the ship.
The Articles and the maritime legislation include reciprocal responsibilities to
the ship's personnel who "shall conduct themselves in an orderly, faithful,
honest and sober manner, and shall at all times be diligent in their respective
duties and obedient to the lawful commands of the master, or of any person who
shall lawfully succeed him, and their superior officers, in everything relating
to the vessel, its stores and cargo, whether on board, in boats or on shore. In
consideration of this service, the master agrees to pay the undersigned seamen
the wages expressed herein and/or set forth in supplemental provisions and/or
agreements".
In brief, the Maritime
Regulations and the Articles cover the rights and obligations of all the ship's
personnel and their conditions of employment. In particular, in the event of a
marine casualty, marine pollution incident or offence, the Commissioner or
Deputy Commissioner will institute an investigation and all personnel are
obliged to co-operate. Failure to do so may result in any or all of the
following consequences: suspension or revocation of licences or other
certification held, before or after expiration; at the discretion of the
Commissioner or Deputy Commissioner, a monetary penalty not exceeding US
$10,000. If the investigation reveals that the cause or any contributory causes
of the casualty or circumstances of the offence reveal any act of misconduct,
inattention to duty or negligence, or violation of any law or regulation,
appropriate action will be taken.
The fair minded reader will probably be surprised at the
extent of the shipowners' responsibilities and liabilities for the actions of
other parties in the responsibility network It seems unjust that the courts
should, for example, hold them responsible for the consequences of, say, the
failure of a shipyard fitter to correctly assemble a piece of equipment or a
failure on the part of one of his employees or agents. In such cases, shipowners
generally find it impossible to invoke the defence of "due diligence" as the
courts appear unwilling to diminish the shipowners' non-delegable duty to
maintain the seaworthiness of their vessels.
It seems similarly unjust that the whole of a flag State's
fleet may be considered substandard because a single ship incurs three PSC
detentions or that all the ships of a certain type must be re-designed because
the crew of one such ship failed to follow good seamanship procedures. In this
imperfect world, responsibilities and legislation are inextricably linked.
Although the owner may
be thousands of miles away, his responsibility is held to be undiminished on the
grounds that his masters, crews and agents should be competent and act
responsibly on his behalf. Legislation has long been in place to penalize
irresponsible or unseamanlike behaviour but, at best, this is a post accident
procedure which may deter others. Consequently, recent legislation (e.g. STCW
95) is aimed at prescribing higher standards of training and certification in an
attempt to reduce the very high proportion of accidents due to human error,
although it is recognized that in many accidents very highly trained personnel
were involved.
Similarly, such a
continual volume of legislation applicable to ships and their equipment is being
enacted in an attempt to reduce or mitigate the effects of casualties that the
law of diminishing returns must be applicable. Yet, in most cases, the causes
are the failure of individuals to meet their responsibilities and so long as
this situation prevails, casualties will occur and legislation will follow
(conversely - no casualties, no legislation). If we are to benefit from past
experience, all concerned must be aware of relevant legislation and their
responsibilities thereunder. It is hoped that this Bulletin has assisted in that
objective.
VMS MB 108 NOVEMBER 1996
LEGISLATION AND
RESPONSIBILITIES - ANNEX By Dr. James Cowley
Vanuatu's legislation is contained in the Maritime Act Cap
131 and the Maritime Regulations Order No.25. Copies of these instruments have
been made available to all shipowners and to each ship registered since 1991.
Additional copies are available on request. An outline of the varying
responsibilities of organizations and individuals under these instruments is
provided in Vanuatu Maritime Bulletin VMS MB 108.
The legislation prescribes that shipowners must comply with
the provisions of all international safety and pollution prevention Conventions
in force and that its ships must be classed by one of the full members of the
International Association of Classification Societies. To assist shipowners in
meeting their responsibilities, Vanuatu is required to provide information on
future and current international regulations.
In addition to the above requirements, Vanuatu's legislation
requires that all casualties involving: loss of life; injury causing absence
from duty for over 72 hours; groundings and collisions; and material damage
affecting seaworthiness; be immediately reported in order that investigations
may be promptly conducted.
The rights and responsibilities of ships' personnel are
included in the Articles of Agreement which must be signed when joining a ship.
Ships' personnel are required to co-operate with Vanuatu's inspectors conducting
non-mandatory inspections; classification surveyors operating under its formal
Agreement; casualty investigations; port State control (PSC) officers and any
person having legitimate business on board their ship.
Any defect affecting the safety or seaworthiness of a ship
must be reported in the first instance to the Vice President - Maritime Safety*
and, if it involves an item subject to classification society survey, to the
relevant society.
The 24 hour contact number for such
reports, and in case of PSC interventions, is: Tel: +1 212 425
9600 Fax: +1 212 425 9652 E-mail:
INTERNATIONAL CONVENTIONS AND
INSTRUMENTS RATIFIED BY THE REPUBLIC OF VANUATU.
Convention on the
International Regulations for Preventing Collisions at Sea, 1972 as amended
(COLREG 72);
International
Convention for the Safety of Life at Sea, 1974, as amended (SOLAS (amended)
1974);
Protocol of 1978
relating to International Convention for the Safety of Life at Sea, 1974, as
amended (SOLAS PROT (amended) -1978);
Protocol of 1988
relating to International Convention for the Safety of Life at Sea, 1974, as
amended (SOLAS PROT (HSSC) 1988);
International
Convention on Standards of Training, Certification and Watchkeeping for
Seafarers, 1978, as amended (STCW ( amended) 1978);
International
Convention on for the Prevention of Pollution from Ships, 1973 as modified by
the Protocol of 1978 relating thereto (MARPOL (amended) 73/78);
Optional Annexes III
and V of MARPOL 73/78;
International
Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC 1969);
Protocol to the
International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC
PROT 1976) ;
Athens Convention
relating to the Carriage of Passengers and their Luggage by sea, 1974 (PAL
1974);
Protocol to the
Athens Convention relating to the Carriage of Passengers and their Luggage by
Sea, 1974 (PAL PROT 1976);
International
Convention for Safe Containers, 1972, as amended (CSC (amended) 1972);
International
Convention on Load Lines, 1966 (LL 1966);
Protocol of 1988
relating to the International Convention on Load Lines, 1966 (LL PROT ( HSSC)
1988);
International
Convention on Maritime Search and Rescue, 1979 (SAR 1979);
International
Convention on Tonnage Measurement of Ships, 1969 (TONNAGE 1969);
Convention on
Facilitation of International Maritime Traffic, 1965, as amended (FAL (amended)
1965);
International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage, 1971, (FUND 1971);
Protocol to the
International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971 (FUND PROT 1976);
Convention on
Limitation of Liability for Maritime Claims, 1976 (LLMC 1976);
International
Convention relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties, 1969 (INTERVENTION 1969);
Protocol relating to
Intervention on the High Seas in Cases of Pollution by Substances other than
Oil, 1973, as amended (INTERVENTION PROT (amended) 1973).
Convention on the
Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972, as
amended ( LC (amended) 1972);
The Convention on the
International Regime of Maritime Ports (1923);
The International
Convention relating to the Limitation of Liability of Owners of Seagoing Ships
(Brussels), 1957.
The information
in this publication is provided for the sole use of selected clients of VMS Ltd.
While every care has been taken in preparation, no warranty is given as to the
correctness of the information contained herein and no liability is accepted by
VMS Ltd. for any statement, opinion, error or omission. Contact VMS Limited.
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