PANAMA MARITIME AUTHORITY RESOLUTION JD -No (November 24, 2005)

Transcription

1 PANAMA MARITIME AUTHORITY RESOLUTION JD -No (November 24, 2005) THE BOARD OF DIRECTORS OF THE PANAMA MARITIME AUTHORITY USING THE FACULTIES CONFERRED BY THE LAW, CONSIDERING That it is function of the Panama Maritime Authority to recommend policies and actions, to implement administrative actions, and to enforce laws and regulations referring to the Maritime Sector. That within its organic structure, the General Directorate of the Merchant Marine is the organism designated to administrate services and execution of programs related to the operation and internal organization as specified in the Decree Law No.7 of October 10, 1998 and regulations established in its development. That according to article 30 of Decreed Law No. 7 of February 10, 1998, it is the responsibility of the General Directorate of Merchant Marine, among other functions, to perform in a private manner all the administrative acts relating to registration, and licensing of vessels in the National Merchant Marine; to enforce over Panamanian registered vessels, the national laws and regulations specified in the International Conventions ratified by the Republic of Panama regarding navigation safety, maritime safety and security, and the prevention and control of marine pollution; to enforce the national laws and regulations specified in the International Conventions ratified by Panama concerning to Port State Control; and to impose the corresponding sanctions to those who violates the National laws and regulations pertaining to the Merchant Marine. That the Republic of Panama is a State Party without reservations to the International Convention for the Safety of Life at Sea, 1974 as amended by the Protocols of 1972 and 2002; to the International Convention on Load Lines, 1966; and to the International Convention on Tonnage Measurements of Ships, 1969; and to the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocols of 1978 and 1997 related to this Convention. That these Conventions establish that the Maritime Administration may delegate the inspections and surveys, and the issuance of statutory certificates to nominated surveyors for that effect or to Recognized Organizations. 1

2 That through Resolution No ALCN of September 16, 1996, from the former General Directorate of Consular and Maritime Affairs of the Ministry of Finance and Treasury, which has been amended by several resolutions has regulated the performance of the Recognized Organizations acting on behalf of the Republic of Panama to carry out surveys and to issue statutory certificates for vessels of the National Merchant Marine, with the intention of enforcing the regulations specified in the national laws and international conventions, to ensure the integrity and efficacy of surveys and inspections to vessels. That the General Assembly of the International Maritime Organization (IMO) approved the Resolution A.739 (18) of November 4, 1993 which established the guidelines for the authorization of Recognized Organizations acting on behalf of the Administration; encouraging the governments to apply these guidelines as soon as possible, and to review the applicable regulations to existing Recognized Organizations based on the minimum requirements introduced in the Annex of this Resolution. That the General Assembly approved the Resolution A. 789 (19) of November 23, 1995 which adopts the specifications related to the functions of Survey and Certification of Recognized Organizations acting on behalf of the Administration, also encouraging the member states to apply them along with the annex of the Resolution A.739 (18), and to review the applicable regulations to the existing Recognized Organizations based on those specifications. That through Resolution A. 946 of November 23, 2003 the General Assembly of the referred Organization approved the establishment of the Voluntary IMO Member State Audit Scheme with the purpose of measuring the effectiveness of these Members States for implementing and enforcing the most important Conventions of the Organization. That the mentioned audit is expected to take place beginning in the year 2006 and one of the relevant aspects to be measured in the referred audit is the capacity that the Flag State has to control and recognize the process of certification and surveys of vessels performed by its Recognized Organizations. That the International Maritime Organization, through the Flag State Implementation Sub Committee and the Maritime Safety Committee, has initiated the discussion of a new legal instrument, in order to make such audit effective. That to ensure the effectiveness and capability of the Panamanian Maritime Administration in control of the recognition procedures and statutory certification authorizing the Recognized Organizations to act in behalf of the Administration, it is recommended to issue a new regulation to establish mechanisms to verify the effectiveness of duties assigned to them, since the quality of services that these organizations provide are directly related to the maritime safety condition of the 2

3 Panamanian fleet. The goal is to control the delegation of authority with the intention of fomenting uniformity in the inspections and safe- keeping of the established regulations. That it corresponds to the Board of Directors of the Panama Maritime Authority, to adopt the administrative, scientific and technological policies to promote and ensure the competitiveness and profitability of the Maritime Sector. RESOLVES FIRST: ISSUE a new REGULATION that regulates the Recognized Organizations acting on behalf of the Republic of Panama to perform surveys and issuing statutory certificates to the ships of the National Merchant Marine. For the purposes of the present resolution it will be understood by Recognized Organization, all those national and international organizations properly recognized by the General Directorate of Merchant Marine of the Panama Maritime Authority to perform surveys and to issue statutory certificates to the ships of the National Merchant Marine. This regulation applies to the Recognized Organizations that have been authorized or wishes to be, to perform surveys and to issue technical certificates to national vessels as well as to those vessels that international conventions do not apply, but which the Administration shall apply a maritime safety control. SECOND: The General Directorate of Merchant Marine of the Panama Maritime Authority will grant to, national or international Organizations experienced and suitable in the maritime field, the authorization to carry out surveys and to issue technical certificates on behalf of the Republic of Panama, according to the national or international laws, and the requirements indicated in this resolution. For such effect, every delegation of authority to a Recognized Organization should: 1. Determine that the organization has adequate resources in terms of technical, managerial and research capabilities to accomplish the tasks being assigned, in accordance with the Minimum 3

4 Standards for Recognized Organizations acting on behalf of the Maritime Administration, set out in IMO Resolutions A.739 (18) adopted on 4 November, 1993 and A.789 (19) adopted on 23 November Have a formal written agreement between the General Directorate of Merchant Marine and the Recognized Organization which delegates the functions, according to the parameters established in the mentioned Minimum Standards. 3. Provide the organization with all appropriate instruments of national law giving effect to the provisions of the conventions, or specify whether the Administration s standards go beyond convention requirements in any respect. These instructions or instruments could be disclosed to the Recognized Organizations through resolutions or maritime safety circulars of the General Directorate of Merchant Marine. 4. Specify that the Recognized Organizations shall maintain records which can provide the Panama Maritime Administration with data to assist in interpretation of convention regulations. THIRD: FOURTH: REQUIRE that all organizations, until the date this resolution is enforced, are authorized by the Republic of Panama to perform surveys and to issue statutory certificates to ships registered in the National Merchant Marine, based on the international conventions ratified by Panama the fully compliance with the General Assembly of the International Maritime Organization (IMO) Resolutions A.739 (18) adopted 4 November, 1993 and A.789 (19) adopted 23 November The previous requirement also applies to new applications for authorization to perform out surveys and issue statutory certificates on behalf of the Republic of Panama that should be formalized on the brief presented to the General Directorate of Merchant Marine through a local lawyer, which should enclose the documents and evidence to demonstrate the total fulfillment of the indicated resolutions and in particular the following: 1. Power of attorney and Application; 4

5 2. Certificate issued by the Public Registry or equivalent document from the origin state which certifies the existence and legal representation of the society with indication of its date of foundation, the board of directors, dignitaries, legal representative and/or empowered representative in the Republic of Panama. 3. Proof of the warranty bond which the FIFTH article of this resolution refers to. 4. Demonstration of the relative size, structure, experience and capability of the organization commensurate with the type and degree of authority intended to be delegated. 5. Demonstration of the experience in assessing the design, construction and equipment of merchant ships and the technical means to comply with what is required. 6. A report detailing the performed activities or to be performed by the society (tonnage inspected under the control of the society, number and types of certificates issued). 7. Number, technical training, and geographical coverage of the surveyors that the company has. Also, copy of diplomas and certificates that certify the suitability of the technical staff within the company shall be enclosed, and a list of its members with their respective curriculum vitae and the positions that they exercise in the head office. Each organization shall have a Technical Manager with the appropriate capability for that position, and a technical staff that complies with the Minimum Standards required by the International Maritime Organization (IMO). 8. Certification attesting, if the authorizations given to the society by other Maritime Administration exist. 9. Develop, implement and maintain an effective internal quality system, subject to certification by an independent body of internationally recognized auditors, based on appropriate parts of internationally recognized quality standards no less effective than ISO 900:2000 series, and which, inter alia, ensures that: 5

6 i. The rules and/or regulations of the organization are established and maintained in a systematic manner; ii. The rules and/or regulations of the organization are complied with; iii. Comply with the requirements of the statutory work for which the organization is authorized; iv. Define and document the responsibilities, authorities and interrelation of personnel whose work affects the quality of the organization s services; v. All work is performed under controlled conditions; vi. Establish a supervisory system which monitors the actions and work performed by the organization; vii. Implement a system for qualification of surveyors and continuous updating of their knowledge; viii. Maintain records demonstrating achievement of the required standards in the items covered by the services performed as well as the effective operation of the quality system; and, ix. Implement a comprehensive system of planned and documented internal audits of the quality assurance related activities in all locations. 10. Certified check for the amount of One Thousand Dollars ($ 1, ) to the order of the Panama Maritime Authority in order to pay for the processing expenses of the application. 11. Any other requirements established by the law. 6

7 FIFTH: The organizations who wish to perform surveys and to issue statutory certificates to ships registered in the National Merchant Marine, shall deposit a surety bond for the amount of twenty thousand dollars ($ 20,000.00), to the order of the Panama Maritime Authority/ General Accounting Office, to face damages and payment of penalties issued by the General Directorate of Merchant Marine. Such surety bond could be deposited by: a. Security deposit in cash in the Panama National Bank; b. State Bonds, dully deposited in the Panama National Bank; c. Security Letter from a bank or financial institution authorized by the Panama National Bank; d. Insurance policy issued by an insurance entity dully authorized by the Insurance and Re-insurance Superintendence. Being an international enterprise of recognized reputation in the maritime field, the mentioned requirement will be fulfilled by submitting evidence of the existence of an insurance bond issued by a solid international financial company or P & I Club that secure the damages of the insured company. SIXTH: The security deposits will not be seized and will be available to the General Directorate of Merchant Marine, to grant the payment of obligations of the Recognized Organizations or the payment of the sanctions they may incur in. SEVENTH: The refund of the security bond will be ordered by the General Directorate of Merchant Marine through written determination, after establishing that the authorized entity has finished its activities and has complied with its obligations. The General Directorate of Merchant Marine will take the measures to ensure that the mentioned Recognized Organization keep the security bonds valid. EIGHT: The applications for extension of delegation of authority and those of new Recognized Organizations will be examined by a Technical Consultative Commission that will be integrated by the following members: 7

8 a. The Deputy Director of the General Directorate of Merchant Marine, who will act as the president; b. A technical employee designated by the Administrator of the Panama Maritime Authority; c. The Head of the Resolutions and Consultations Department of the General Directorate of Merchant Marine, who will act as the secretary; d. The Head of the Navigation and Maritime Safety Inspection Department of the General Directorate of Merchant Marine; e. The General Director for Seafarers or the technical employee that he designates. NINTH: Other attributions of the Consultative Commission are as follows: a. Keep track of the acts performed by the Recognized Organizations; b. Recommend the application of applicable sanctions in accordance with requirements of this resolution; c. Analyze and recommend to the General Directorate of Merchant Marine the authorization or revocation of the delegations of authority that it considers justified; d. Recommend the rejection of the applications when it considers that there is no merit for such recognition; e. The others assigned by the General Director of Merchant Marine. TENTH: In those cases when the Recognized Organizations request to be permitted to perform other surveys and issue other certifications different to the previously authorized, they should submit the corresponding application to the General Directorate of Merchant Marine by a legal representative that will be submitted to evaluation of the Consultative Commission, which through written report will request a resolution proposal to the General Director. 8

9 Immediately afterwards, the General Directorate of Merchant Marine should approve or reject the submitted application by a written determination. In case that the application is approved, this resolution will become effective when the new authorizations are included in the corresponding Merchant Marine Circular. This provision also applies to new authorizations. The applications for authorization referred to in this article should contain a description of the activities and the technical means to comply with the requested, and it will enclose the documentation that substantiates the new petition. ELEVENTH: The Consultative Commission could base its recommendations from the results in the audit reports of the Recognized Organizations that the General Directorate of Merchant Marine will perform directly or through persons or suitable entities to basically measure, but not limited to, the aspects related to adequate management, competence, capacity and capability for technical evaluation, research capabilities, and the surveys performed by the organization; to its qualification and training; to its quality assurance standard system; to its knowledge of the applicable legislation to the Panamanian maritime fleet; and generally speaking, to the minimum standards applicable to Recognized Organizations. Also there will take into consideration the reports and/or technical reports issued by Organizations or Specialized Entities, Memorandums of Understanding on Port State Control, Maritime Administrations and precedents and management reports received and/or issued by the General Directorate of Merchant Marine. The recommendations of the Commission will be based on the technical capability of the Organization, always in compliance with the standards contained in the Conventions and in the Regulations applicable to the Panamanian fleet. TWELFH: In order to determine the aspects mentioned in the previous article and to assure being otherwise fully advised of the management performed by the Recognized Organization concerning the delegations of authority that have been issued, or to determine the delegations of authority that could be granted, the General Directorate of Merchant Marine can carry out directly or through person (s) or specialized entities, surveys and audits to the Recognized Organizations. 9

10 These surveys and audits could be carried out within the periods that the General Directorate of Merchant Marine considers suitable, for which purpose the corresponding communication regarding the place and date of the audit will be made a month in advance, directly to the head office of the Organization. The General Directorate of Merchant Marine can order the Recognized Organizations to assume the costs of the survey or audit. PARAGRAPH: With the intention of determining the management, and adequate competence, the capacity and the adequate capability of the Recognized Organizations that are authorized until the date, the General Directorate of Merchant Marine will carry out, from year 2006, audits to the mentioned Organizations, under the parameters of Audits for Quality Management Standards System, of the IMO Resolutions A739 (18) and A 789 (19), of the international conventions ratified by Panama, and of the requirements established by this resolution, and based on such mentioned results; it could revoke the delegations of authority issued and make recommendations to the Recognized Organizations. If it is considered to be necessary, an independent auditor or from a specialized audit entity of quality management system and the others required could be hired, in order to carry out an independent audit to these Organizations, and its cost will be assumed by the Recognized Organizations. The costs of the audits that carry out the General Directorate of Merchant Marine, including professional fees, plane tickets, living expenses and accommodations of the designated employees for the mentioned audit, will be paid by the corresponding Recognized Organization in accordance with the current tariff used by the General Directorate for Seafarers for auditing the seafarers training centers abroad or as established by the General Directorate of Merchant Marine depending on the case. THIRTEENTH: The Recognized Organizations should provide the General Directorate of Merchant Marine and to his offices abroad, access to the database of the Organization, related with the ships and with the statutory certificates issued by virtue of the granted delegation. For this purpose, the corresponding passwords and guidelines shall be 10

11 given to the General Directorate of Merchant Marine for his effective consultation. Also, the Recognized Organizations dully authorized, will cooperate with the Administration in technical matter, consultative, training and others services related to the obligations acquired by the State based on the International Conventions ratified and delegated to them. FOURTEENTH: The authorization to perform surveys and to issue statutory certificates on behalf of the Panamanian Maritime Administration can be revoked in the following cases: a. If the organization commits serious irregularities in the functions that have been delegated or seriously infringes the legal standards currently enforced regarding the activity for which has been authorized; b. If in the constitution of the Company, in its personnel or in the method of operations, it demonstrates to be incompatible with the activities that it performs or has a conflict of interests with the current legal dispositions; c. If the inaccuracy or falsity of the documentation submitted is confirmed; d. If it does not initiate operations within the six (6) months after the notification of the Resolution by which is authorized to carry out surveys and to issue statutory certificates on behalf of the Panamanian Maritime Administration; e. If after initiating operations, the organization keeps inoperative regarding the authorizations issued for a period of six, (6) months; f. If it is determined that the Recognized Organization does not fulfil the Minimum Standards contained in the Resolutions A 739(18) of November 4, 1993 and A 789 (19) of November 23, 1995 of the General Assembly of the International Maritime Organization (IMO). 11

12 g. If they do not comply with the guidelines issued by the General Directorate of Merchant Marine. FIFTEENTH: SIXTEENTH: The Organizations that are authorized in accordance with the established in this Resolution should coordinate with the General Directorate of Merchant Marine everything related to the surveys of ships and to the issuing of statutory certificates. The Recognized Organizations should inform the General Directorate of Merchant Marine, annually or when it is required, the list of its inspectors by means of a directory, and they will facilitate the General Directorate the complete information regarding the number of certificates issued, surveys carried out, and technical information regarding the certified ships. SEVENTEENTH: The Recognized Organizations should also submit to the International Office of the Panama Maritime Authority in New York, United States, a monthly report by category, of the certificates issued during the previous month and it will be sent in the first fifteen (15) days of the next month. The General Directorate of Merchant Marine could instruct the Recognized Organizations to adopt control measures for issuing the above mentioned certificates. EIGHTEENTH: NINETEENTH: The Recognized Organizations could not perform the Annual Safety Inspections (A.S.I) that is referred to in the Law 39 of July 8, 1976, for being incompatible and a conflict of interest with the purpose of the above mentioned Flag State Inspections. Therefore, the General Directorate of Merchant Marine could not assign the annual safety inspections of ships, to inspectors who work for a Recognized Organization that has intervened in the recognition and statutory certification of the same ship, unless there are reasons to justify such authorizations. The violations to the dispositions contained in this resolution and in the national law and International Conventions in force ratified for the Republic of Panama on the matter, will be sanctioned by the General Directorate of Merchant Marine, as established by the numeral 8 of the article 30 of the Decree Law No. 7 of February 10, 1998 by written determination, which could be subject to a motion for reconsideration before this General Directorate or of appeal before the Administrator of the Panama Maritime Authority. 12

13 Either of them, or both, could be filed in accordance with the procedures established in the law, within five (5) days after the notification of the corresponding resolution. TWENTIETH: This resolution revokes in all his parts the Resolution Not ALCN of September 16, 1996 issued by the General Director at that time of the Directorate General of Consular and Maritime Affairs; and the resolutions No ALMM of May 4, 1999, No DGMM of June 9, 2000 and No DGMM of April 1, 2003 of the General Directorate of Merchant Marine. TWENTIETH FIRST: This resolution will become enforced upon its publication in the Official Gazette. LEGAL FOUNDATION: Law N 2 of January 17, 1980; Law N 20 of October 23, 1975; Law N 39 of July 8, 1976; Law N 6 of October 27, 1977; Law N 7 of October 27, 1977; Law N 8 of November 9, 1978; Law N 12 of November 9, 1981; Law N 17 of November 9, 1981; Law N 10 of October 25, 1963; Executive Decree 56 of October, 1976; Law Decree 7 of February 10, Given in the city of Panama, on the twenty-four (24) days of November of two thousand five (2005). NOTIFY, PUBLISH AND COMPLY THE PRESIDENT THE SECRETARY UBALDINO REAL MINISTER OF THE PRESIDENCY CARLOS RAUL MORENO DAVILA ADMINISTRATOR IN CHARGE OF THE PANAMA MARITIME AUTHORITY Vielka Zurita de Landron, MA R.U.C Traductor Público Autorizado, Resuelto 641 de 26 de junio de