By Emeka Akabogu
The flag of a ship refers to its nationality. The essence of ascribing nationality to a ship is to identify it with a particular country as its country of origin, just like individuals have a country of citizenship. Thus by flying a country’s flag, a ship may seek the protections afforded by that country against third states, and associated benefits of flagging. It also confers jurisdiction over the ship on the flag state, by which it can exercise supervisory and regulatory control over the ship. Flag State administration relates to the totality of actions taken by a state authority towards regulating the ships which are under its control.
In pre-formal times, the nationality of a ship was largely determined by the nationality of its owners. Thus where a ship is owned by somebody or a preponderance of persons from Country A, then the nationality of that ship is automatically Country A. In modern times however , nationality is acquired by registration of a ship in the national ship registry of the relevant country. States typically give conditions on which a ship may fly their flag, and the UNCLOS requires that there must be a genuine link between the ship and the state for the ship to fly the state’s flag.
The responsibility of Flag State - Every state is to exercise jurisdiction and control in administrative, technical and social matters over ships flying its flag. Towards this, it is required not only to maintain an efficient registry of ships, but also to take such measures as are necessary to ensure safety at sea for ships flying its flag with regard to construction, manning and operation of the ships.
Given the international nature of shipping which implies that ships will be calling at multiple ports across diverse jurisdictions, the International Maritime Organisation (IMO) has led and continues to facilitate the development of a uniform set of rules applicable globally. These include such significant Conventions like the International Convention on Safety of Life at Sea (SOLAS) and the International Convention on the Prevention of Marine Pollution (MARPOL).
It is the responsibility of the flag state to ensure that ships under its regulatory control comply with these conventions. Among key flag state responsibilities should include:
•Provision of infrastructure (qualified and competent staff, offices and equipment to meet obligations under international treaties),
•Ratification of international treaties (including core conventions - SOLAS, MARPOL, CLC, LL, STCW),
•?Implementation and enforcement of the treaties (in terms of the detailed requirements including development of regulations, surveys and certifications, supervision of the surveys);
•Supervision of employment standards (per ILO Maritime Labour Convention 2006); casualty investigation;
•Participation at IMO and ILO meetings; and
•Consultation with shipowners.
Flag Administration in Nigeria - The flag state administrator in Nigeria is the Nigerian Maritime Administration and Safety Agency (NIMASA). The NIMASA Act of 2007 specifically includes port and flag state duties amongst the functions of the Agency[v], and further provides generally for the carrying out of flag state related duties under provisions on ship safety and security (Part IX), marine pollution (Part X), in addition to marine casualty investigations and ship detentions (Part XI).
Thus NIMASA maintains a Register of Nigerian ships under its Ship Registry Unit, and has a team of staff and consulting surveyors whose work is to undertake the various flag state duties. It also liaises with international classification societies in maintaining the required standards. It issues certificates of compliance as required by the various international maritime conventions, and supervises certification of seafarers under the STCW Convention.
Port State Control - Port State Control (PSC) is the inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations and that the ship is manned and operated in compliance with these rules. The primary responsibility for ensuring that ships comply with international legal regimes rests with the owners and masters of the ships in addition to the flag states.
Port states however , provide an important safety net, and are in the nature of a last line of defence against unscrupulous and/or negligent shipping practices. The idea of port state control recognises that it may not be possible for flag states to fully ensure that international stipulations are met. While the expense of flag state administration is an important factor, the popularity of flags of convenience no doubt renders international shipping more vulnerable to poorly regulated ships.
Most international maritime conventions contain provisions which stipulate inspections of ships by third nations when such ships call at the relevant ports. See Article 5, MARPOL. In addition, the UNCLOS provides authority for states to undertake investigations and institute proceedings against foreign vessels in their jurisdiction in respect of violation of applicable international rules.
PSC Implementation Framework - Port State Control is carried out largely under the framework of regional cooperative agreements, the pioneer of which was the Paris Memorandum of Understanding of 1982. The Paris MOU currently has 27 participating maritime administrations and conducts 24,000 inspections annually. Nearer home, the Abuja MOU entered into force in 1999 and has sixteen participating countries covering the West and Central African Region.
Port State Control MOUs ideally work by selective inspection of ships. This is facilitated by the MOUs central computer data-base for data on ships’ particulars and for the reports of previous inspections carried out within the region. If a ship has been inspected within the MOU’s region during the previous six months and, on that occasion, was found to comply, the ship will in principle be exempted from further inspection, unless there are clear grounds to warrant further investigation.
In selecting ships for inspection the MOU Authorities will give priority to: Ships visiting a port of a State, the Authority of which is a signatory to the Memorandum, for the first time or after an absence of 12 months or more. In the absence of appropriate data for this purpose, the Authorities will rely upon the available data in the information system and inspect those ships which have not been registered in that information; Ships flying the flag of a State appearing in the three-year rolling average table of above-average detentions and delays published in the annual report of the MOU’s; Ships which have been permitted to leave the port of a State, the Authority of which is a signatory to the Memorandum, on the condition that the deficiencies noted must be rectified within a specified period, upon expiry of such period; Ships which have been reported by pilots or port authorities as having deficiencies which may prejudice their safe navigation; Ships whose statutory certificates on the ship’s construction and equipment, issued in accordance with the relevant instruments and the classification certificates, have been issued by an organization which is not recognized by the Authority; Ships carrying dangerous or polluting goods, which have failed to report all relevant information concerning the ship’s particulars, the ship’s movements and concerning the dangerous or polluting goods being carried to the competent authority of the port and coastal State; Ships which are in a category for which expanded inspection has been decided; Ships which have been suspended from their class for safety reasons in the course of the preceding six months.
The importance of flag and port state administration to shipping is best appreciated by noting the potential economic impact of waters infested with unseaworthy vessels. International trade will be at the mercy of greedy and unscrupulous shipowners, while the marine environment and economy could collapse from serial contamination.