Proposed Amendments to the Memorandum

Transcription

1 AMoU/C8/4/2/B 8 th Abuja MoU Committee Meeting October 2012 Brazzaville, Republic of Congo MEMORANDUM OF UNDERSTANDING ON PORT STATE CONTROL FOR WEST AND CENTRAL AFRICA REGION MEMORANDUM D ENTENTE SUR LE CONTROLE DES NAVIRES PAR L ETAT DU PORT DANS LA REGION DE Proposed Amendments to the Memorandum EXPLANATORY NOTES ON PROPOSED AMENDMENTS TO THE MEMORANDUM OF UNDERSTANDING ON PORT STATE CONTROL FOR THE WEST AND CENTRAL AFRICAN REGION, ST AMENDMENT. PAGE 2 i) The list of Maritime Authorities as contained on page 2 of the proposed amended AMOU is to include the following countries omitted from the composition of member states of the AMoU: a) GUINEA BISSAU; 1

2 b) DEMOCRATIC REPUBLIC OF CONGO; and c) SAO TOME AND PRINCIPE. ii) The phrase to increase was deleted and replaced with the word for on the first paragraph of page 2. iii) The inclusion of the second and third paragraphs on page 2 is to lay emphasis on the importance of the relevant conventions. PAGE 3. i) The acronym PSCOs to be added immediately after Port State Control Officers in the first paragraph of page 3 ii) iii) The word particular in the second paragraph was deleted since it is only the works of the IMO and ILO that are referred to. The acronym MOWCA was inserted immediately after MINCONMAR in the fourth paragraph as MINCONMAR has transformed into MOWCA (Maritime Organization of West and Central Africa). iv) Section 1. COMMITMENTS. 1.1 The remaining parts of the sub-section immediately after the word thereto were deleted as they give no extra meaning to the intention of the sub- paragraph. 1.2 Line I - The deletion of the word establish before the word maintain presupposes that an Authority can only seek to maintain its status as a port State having in place the required criteria for such as listed in Section 2 of the Memorandum. 2

3 Line 3 The word calling was used to replace the word visiting as Ships call at ports and not visit, while the words anchored off were inserted to cover ships at anchorage. Line 5 The word listed was used to replace the word define since the instruments in Section 2 were listed and not defined. 1.3 The proposed amendment removes the seeming ambiguity noticed in the 1999 AMOU in that it provides for annual inspections and gives the Committee established under Section 7.1 the power to co-ordinate the inspections. A new Annex 11 has also been included to show the inspection commitments of Authorities. PAGES 4 AND The new subsection 1.5 was included to cover pilot services required under existing conventions to be offered by the Port Authorities to ships calling at their ports. 1.6 The new subsection 1.6 specifies the types of inspections to be carried out as shown in the new Annex The new subsection 1.7 gives the Authorities additional powers to take measures within their jurisdiction in respect of any matter to which the relevant instruments they are parties to apply. 1.8 The new subsection 1.8 recognises that the membership of Abuja MoU on PSC does not cover a specific sub-region or region but the port states of the States that are parties thereto. 3

4 SECTION 2. RELEVANT INSTRUMENTS: 2.1 It is without doubt that since its inception in 1999 the AMoU has not been amended to reflect and capture the relevant international protocols and conventions not considered during the drafting of the MoU. Ever since, a number of international maritime conventions and protocols have also come into force. Thus the following relevant International protocols and conventions have been included: 1. The protocol of 1988 relating to the International Convention on Load Lines, 1966(LL PROT 88); 2. The Protocol of 1988 relating to the International Convention for the Safety of life at Sea, 1974(SOLAS PROT 88); 3. The International Convention on Civil Liability for oil Pollution Damage, 1969(CLC 1969); 4. The Protocol of 1996 to the Merchant Shipping(minimum standards) Convention, 1976( ILO Convention No. 147) (ILO 1 147); 5. The Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLCPROT 1992); 6. International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001(AFS2001); and 7. The International Convention on Civil Liability for Bunker Oil Pollution Damage, This sub-section has been amended to refer to the new Annex 2 as the old Annex 1 previously referred to was misleading. The former Annex 1 relates to List of Maritime Administrations. PAGES And 2.5 These sub-sections address treatments to be given to ships of non-parties and below convention size with the inclusion of an amended Annex 1. 4

5 2.6 Mindful of the fact that some state parties may not have ratified a number of the relevant instruments covered by the MoU, the new S.2.6 makes such instruments binding when two or more states have ratified them. SECTION 3 Reporting, Ship Risk Profile, Selection, Inspection and Detention. The 1999 AMoU lacks provisions relating to methods for Reporting, Ship Risk Profile and Selection. Thus the amendments to the entire section seek to align the AMoU with best practices in determining factors for selecting ships for inspection by each Port State Authority. Thus the amendments to the sub-sections are applied to new Annex 7 on ship Risk Profile, Annex 8 on Inspection and Selection scheme and Annex 12 on Reporting obligations for ships. See new Sections 3.1 and 3.2 Under S.3.3 paragraph 3, the old Annex 4 on qualification criteria for Port State Control Officers has been replaced with a new Annex 6 on Minimum Criteria for Port State Control Officers. The new Annex 6 has been expanded to adequately address and emphasis the training, competence and assessment of Port State Control Officers, as well as the adherence to the Code of Good Practice for PSCOs Conducting inspections within the framework of the Abuja MoU. S 3.12 introduces the guidelines for establishing a detention review panel and its procedures provided in AMoU PSC Manual or AMoU Committee instructions. PAGES SECTION 4. BANNING 5

6 Refusal of access to ships following multiple detentions. This is an entirely new section which recognises the need to ensure that sub-standard ships are not allowed access to ports or anchorage. Conditions to be met by such ships are spelt out under the ABUJA MoU COMMITTEE Instructions. PAGES SECTION 5. (Old Section 4) Provision of Information Line 3, Annex 3 replaces the old Annex 8. The old sub-section 4.2 has been replaced with new sub-sections 5.2 to which incorporate a new Annex 4 on publication of information related to detentions and inspections, gives the Secretariat power on behalf of the Abuja MoU to take necessary measures in order to ensure that the information listed in Annex 4 is published at intervals. 5.3 Enjoins the Secretariat to facilitate the publication of data in any electronic or printed format derived unaltered from the information systems mentioned in Annex Sets out to ensure confidentiality of information contained in inspection or detention data. PAGE 12 Section 6 (old Section 5). Operational Violations. The proviso immediately after the words alleged pollutant have been replaced with the following: Procedures for investigations into contravention of discharge provisions are listed in AMoU Manual or AMoU Committee Instruction. 6

7 The AMoU Manual or AMoU Committee Instruction specifies the procedures for carrying out investigations relating to discharge of pollutant. Though the section talks about operational violations it is lacking in the type of procedure Authorities are expected to follow in carrying out investigations into contravention of discharge provisions. Thus the amendment seeks to provide that the procedures are listed in AMoU Manual or AMoU Committee Instruction. Old Section 6 TRAINING PROGRAMMES AND SEMINARS The entire section has been deleted as the new Annex 6 which provides for Minimum Criteria for Port State Control Officers under paragraph 8, directs each Authority to ensure that its Port State Control Officers are trained and accessed to ensure adherence to international best practices. PAGES Section 7. ORGANISATION. 7.1 The sub-section has been amended to include only Authorities which are parties to the AMoU to form part of Committee and others wishing to act as observers and associates but would have no voting rights. 7.2 The words at least was deleted since the Committee is expected to meet at such other time as it may decide within a particular year. 7.3 paragraph 2, the word Surveyors was deleted and replaced with Port State Control Officers since PSCOs are also Surveyors. Paragraph 3 the words and procedures were added immediately after guidelines. Old Paragraphs 6 and 7 were deleted and replaced with new paragraphs 6 and 7. 7

8 New Paragraph 7 establishes AMoU Intersessional Management Working Group (ISMWG) to assist the Port State Control Committee in focusing on key issues. These are modalities used by other regional MoUs such as the Paris MoU which has what is called a MoU Advisory Board. Old 7.4 was deleted. New 7.4 amends the old 7.5 to state that the Secretariat shall be provided by the Federal Ministry of Transport in Nigeria with its office in Lagos. New 7.5 replaces the old paragraph 2, includes Annexes 3 and 4 on information and publication, which replaces the old Annex 2 New S. 7.6, 7.7, 7.8, and 7.9 established the Abuja MoU Bureau and its composition. Also the new Sections 7.10 and 7.11 are intended to highlight the fact that AMoU has established AMoU Information System (AMIS) in the Republic of Congo for the purpose of exchanging information on port State inspections, so as to capture information on inspections carried out on ships within the region and in other regions. The procedure for operating the AMIS is set out in Annexes 3 and 4. Section 8 amends the sub head Financial Mechanism in the old AMoU to read Financial Provisions and creates two sub sections under 8.1 New 8.2 gives the AMoU Committee power to develop and enforce rights and privileges attached to Member States in good financial standing regarding payment of financial dues to the Secretariat. The subsection is expected to encourage member states to promptly meet up with their financial obligations. 8

9 PAGES Section 9. AMENDMENTS. ( SAME AS THE ORIGINAL TEXT) Section 9 deals with procedures for amendment of provisions of the AMoU and Annexes thereto. The subsections under S.9 of the original text have been rearranged accordingly. A new paragraph 4 to subsection 9.2 has been included and it deals with steps to be taken when an objection to a proposed amendment is raised by any Authority which has accepted the Memorandum. Section 9.3 replaces 9.6 of the original text. PAGES SECTION 10 ORIGINAL TEXT) ADMINISTRATIVE PROVISIONS (SAME AS THE 10.1 Line 2 the phrase or relevant national legislation has been included to cover those international instruments that have been ratified and domesticated by Member States The sub-section has been amended to apply the AMoU to other countries which are not in the West and Central African Subregion as the original name applies, particularly countries within the South Atlantic and South Pacific Regions. Annex 5 therein has replaced Annex 9 in the original text This sub-section replaces subsection 10.4 in the original text A new sub-section replaces 10.7 in the original text This sub-section replaces sub-section 10.8 in the original text The new sub-section is to provide for the revocation of membership of a member Authority or observer status of an observer. 9

10 10.7 This subsection amends the original 10.6 which states that the Memorandum will take effect for each Authority ninety days from the date of acceptance or accession. By this sub section States wishing to accede to the MoU would now have to meet the criteria laid down in Annex This subsection replaces the old subsection This subsection slightly amends the previous 10.9 to show that the MoU come only in two versions. PAGE 18 This page contains the names of all the member States that have signed and accepted the AMoU since PAGES A new ANNEX 1 on Ships of non parties and below convention size The Annex specifies the need for more detailed inspections for Ships of non- parties and assessment of ships below convention size. The Annex also spells out items of general importance and what is expected of PSCOs in cases of deficiencies. The Annex replaced Annex1 in the original text which deals with lists of Maritime Administrations. PAGES ANNEX 2 deals with Merchant Shipping (Minimum Standards) Convention, 1976 (No.147) and ILO l47,1996 on maritime Labour inspections. 10

11 The provisions of the Annex were contained as part of Annex 2 of the original text. PAGES Annex 3 on Information System on inspections is the same as Annex 8 in the original text PAGES ANNEX 4- This is a new Annex dealing with Publications of Information related to Detentions and Inspections PAGES ANNEX 5 on Membership of the Memorandum replaced Annex 1 in the original text and Annex 9 thereof on Qualitative Criteria for Adherence to the Memorandum. This Annex also deals with status of an Observer. PAGES ANNEX 6 deals with Minimum Criteria for Port State Control Officers which contains amendments to Annex 4 of the original text. PAGES ANNEX 7 deals with Ship Risk Profile PAGES ANNEX 8 deals with Inspection and Selection Scheme which is based on Ship s risk profile. 11

12 PAGES ANNEX 9 deals with Inspection Types and Clear Grounds. The types of inspections to be carried out, and what constitutes clear grounds for inspection. PAGES ANNEX 10 deals with Examination of certificates and documents. This Annex spells out the kinds of certificates and documents that are required to be inspected. PAGES ANNEX 11 deals with Inspection Commitments of Authorities. PAGES ANNEX 12 deals with Reporting obligation for ships. PAGE 51- ANNEX 13 deals with Member States and Dates of Accession. (It also shows States that are yet to accept.) There is no doubt that the AMoU is long overdue for amendment and update of relevant provisions, in order to bring it at par with other similar MoUs. With the inclusion of three members States,namely; DR Congo, Sao-Tome & Principe and Guinea Bissau the membership of AMoU has risen to 22 Countries spread across West, Central and Southern African regions. The following countries fall within West African Region: 1. Benin; Cote d Ivoire; The Gambia; Ghana; Guinea, Guinea Bissau, Liberia; Mauritania, Nigeria, Senegal, Sierra Leone and Togo. 2. Central African Region: Cameroon, Cape Verde, Congo, Equatorial Guinea and Gabon. 3. Southern African Region. Angola, Namibia and South Africa. 12

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