ELEMENTS OF THE COMMUNITY PORT STATE INSPECTION SYSTEM(referred to in Article 5) I.Ship risk profile 1.Generic parameters 2.Historical parameters II.Inspection of ships 1.Periodic inspections 2.Additional inspections 2A.Overriding factors 2B.Unexpected factors 3.Selection scheme 3A.Priority I ships shall be inspected as follows: 3B.Where the competent authority decides to inspect a Priority II...NOTIFICATION(referred to in Article 9(1)) LIST OF CERTIFICATES AND DOCUMENTS(referred to in Article 13(1)) EXAMPLES OF ‘CLEAR GROUNDS’(referred to in Article 13(3)) A.Examples of clear grounds for a more detailed inspection 1.Ships identified in Annex I, Part II 2A and 2B....2.The oil record book has not been properly kept. 3.During examination of the certificates and other documentation, inaccuracies have...4.Indications that the crew members are unable to comply with...5.A certificate has been fraudulently obtained or the holder of...6.The ship has a master, officer or rating holding a...7.Evidence of cargo and other operations not being conducted safely,...8.Failure of the master on an oil tanker to produce...9.Absence of an up-to-date muster list, or crew members not...10.The emission of false distress alerts not followed by proper...11.The absence of principal equipment or arrangements required by the...12.Excessively unsanitary conditions on board the ship. 13.Evidence from the inspector’s general impression and observations that serious...14.Information or evidence that the master or crew is not...15.The absence of a table of shipboard working arrangements or...B.Examples of clear grounds for the control of ships on...1.The inspector may establish clear grounds for further control measures...2.If clear grounds as described above are established, the inspector...3.Clear grounds other than those above are a matter for...PROCEDURES FOR THE CONTROL OF SHIPS(referred to in Article 15(1)) EXPANDED INSPECTIONS OF SHIPS(referred to in Article 14) PROVISIONS CONCERNING REFUSAL OF ACCESS TO PORTS AND ANCHORAGES WITHIN THE COMMUNITY(referred to in Article 16) 1.If the conditions described in Article 16(1) are met, the...2.The competent authority shall send a copy of the refusal...3.In order to have the refusal of access order lifted,...4.The request for the lifting of the refusal of access...5.The refusal of access order may be lifted only after...6.If the detention which led to the issue of a...7.The re-inspection shall be carried out by the competent authority...8.The re-inspection shall consist of an expanded inspection that must...9.All costs of this expanded inspection will be borne by...10.If the results of the expanded inspection satisfy the Member...11.The competent authority shall also notify its decision in writing...12.Information relating to ships that have been refused access to...INSPECTION REPORT(referred to in Article 17) I.General 1.Competent authority that wrote the report 2.Date and place of inspection 3.Name of the ship inspected 4.Flag 5.Type of ship (as indicated in the Safety Management Certificate)...6.IMO identification number 7.Call sign 8.Tonnage (gt) 9.Deadweight tonnage (where relevant) 10.Year of construction as determined on the basis of the...11.The classification society or classification societies as well as any...12.The recognised organisation or recognised organisations and/or any other party...13.Name and address of the ship’s company or the operator...14.Name and address of the charterer responsible for the selection...15.Final date of writing the inspection report 16.Indication that detailed information on an inspection or a detention...II.Information relating to inspection 1.Certificates issued in application of the relevant Conventions, authority or...2.Parts or elements of the ship that were inspected (in...3.Port and date of the last intermediate or annual or...4.Type of inspection (inspection, more detailed inspection, expanded inspection) 5.Nature of the deficiencies 6.Measures taken. III.Additional information in the event of detention 1.Date of detention order 2.Date of lifting the detention order 3.Nature of the deficiencies warranting the detention order (references to...4.Indication, where relevant, of whether the recognised organisation or any...5.Measures taken. CRITERIA FOR DETENTION OF A SHIP(referred to in Article 19(3)) INTRODUCTION 1.Main criteria Timing: Criterion: 2.Application of main criteria 3.To assist the inspector in the use of these guidelines,...3.1.General 3.2.Areas under SOLAS 74 1.Failure of the proper operation of propulsion and other essential...2.Insufficient cleanliness of engine room, excessive amount of oily-water mixtures...3.Failure of the proper operation of emergency generator, lighting, batteries...4.Failure of the proper operation of the main and auxiliary...5.Absence, insufficient capacity or serious deterioration of personal life-saving appliances,...6.Absence, non-compliance or substantial deterioration of fire detection system, fire...7.Absence, substantial deterioration or failure of proper operation of the...8.Absence, non-compliance or serious deterioration of lights, shapes or sound...9.Absence or failure of the proper operation of the radio...10.Absence or failure of the proper operation of navigation equipment,...11.Absence of corrected navigational charts, and/or all other relevant nautical...12.Absence of non-sparking exhaust ventilation for cargo pump rooms. 13.Serious deficiency in the operational requirements, as described in Section...14.Number, composition or certification of crew not corresponding with the...15.Failure to carry out the enhanced survey programme in accordance...3.3.Areas under the IBC Code 1.Transport of a substance not mentioned in the Certificate of...2.Missing or damaged high-pressure safety devices. 3.Electrical installations not intrinsically safe or not corresponding to code...4.Sources of ignition in hazardous locations. 5.Contraventions of special requirements. 6.Exceeding of maximum allowable cargo quantity per tank. 7.Insufficient heat protection for sensitive products. 3.4.Areas under the IGC Code 1.Transport of a substance not mentioned in the Certificate of...2.Missing closing devices for accommodation or service spaces. 3.Bulkhead not gastight. 4.Defective air locks. 5.Missing or defective quick-closing valves. 6.Missing or defective safety valves. 7.Electrical installations not intrinsically safe or not corresponding to code...8.Ventilators in cargo area not operable. 9.Pressure alarms for cargo tanks not operable. 10.Gas detection plant and/or toxic gas detection plant defective. 11.Transport of substances to be inhibited without valid inhibitor certificate....3.5.Areas under LL 66 1.Significant areas of damage or corrosion, or pitting of plating...2.A recognised case of insufficient stability. 3.The absence of sufficient and reliable information, in an approved...4.Absence, substantial deterioration or defective closing devices, hatch closing arrangements...5.Overloading. 6.Absence of draft mark or draft mark impossible to read....3.6.Areas under MARPOL 73/78, Annex I 1.Absence, serious deterioration or failure of proper operation of the...2.Remaining capacity of slop and/or sludge tank insufficient for the...3.Oil Record Book not available. 4.Unauthorised discharge bypass fitted. 5.Survey report file missing or not in conformity with Regulation...3.7.Areas under MARPOL 73/78, Annex II 1.Absence of the P&A Manual. 2.Cargo is not categorised. 3.No cargo record book available. 4.Transport of oil-like substances without satisfying the requirements or without...5.Unauthorised discharge bypass fitted. 3.8.Areas under MARPOL 73/78, Annex V 1.Absence of the garbage management plan. 2.No garbage record book available. 3.Ship’s personnel not familiar with disposal/discharge requirements of garbage management...3.9.Areas under the STCW 78/95 and Directive 2008/106/EC. 1.Failure of seafarers to hold a certificate, to have an...2.Evidence that a certificate has been fraudulently obtained or the...3.Failure to comply with the applicable safe manning requirements of...4.Failure of navigational or engineering watch arrangements to conform to...5.Absence in a watch of a person qualified to operate...6.Failure to provide proof of professional proficiency for the duties...7.Inability to provide for the first watch at the commencement...3.10.Areas under the ILO Conventions 1.Insufficient food for voyage to next port. 2.Insufficient potable water for voyage to next port. 3.Excessively unsanitary conditions on board. 4.No heating in accommodation of a ship operating in areas...5.Insufficient ventilation in accommodation of a ship. 6.Excessive garbage, blockage by equipment or cargo or otherwise unsafe...7.Clear evidence that watchkeeping and other duty personnel for the...3.11.Areas which may not warrant a detention, but where, e.g....MINIMUM CRITERIA FOR INSPECTORS(referred to in Article 22(1) and (5)) 1.Inspectors must have appropriate theoretical knowledge and practical experience of...2.Inspectors must, as a minimum, have either: 3.The inspector must have: 4.The inspectors mentioned under 2(a) must have gained a maritime...5.The inspectors must have the ability to communicate orally and...6.Inspectors not fulfilling the above criteria are also accepted if...7.Where in a Member State inspections referred to in Article...FUNCTIONALITIES OF THE INSPECTION DATABASE(referred to in Article 24(1)) 1.The inspection database shall include at least the following functionalities:...2.The inspection database shall have the capability to adapt to...3.A deep hyperlink shall be provided from the inspection database...PUBLICATION OF INFORMATION RELATED TO INSPECTIONS, DETENTIONS AND REFUSALS OF ACCESS IN PORTS AND ANCHORAGES OF MEMBER STATES(referred to in Article 26) 1.Information published in accordance with Article 26 must include the...2.For ships which have been detained, information published in accordance...DATA PROVIDED IN THE CONTEXT OF MONITORING IMPLEMENTATION(referred to in Article 29) 1.Every year Member States must provide the Commission with the...1.1.Number of inspectors acting on their behalf in the framework...1.2.Total number of individual ships that entered their ports at...2.Member States must: PART APART B

Directive 2009/16/EC of the European Parliament and of the Council

of 23 April 2009

on port State control

(Recast)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the procedure laid down in Article 251 of the Treaty3, in the light of the joint text approved by the Conciliation Committee on 3 February 2009,

Whereas:

(1)

Council Directive 95/21/EC of 19 June 1995 on port State control of shipping4 has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)

The Community is seriously concerned about shipping casualties and pollution of the seas and coastlines of Member States.

(3)

The Community is equally concerned about on-board living and working conditions.

(4)

Safety, pollution prevention and on-board living and working conditions may be effectively enhanced through a drastic reduction of substandard ships from Community waters, by strictly applying Conventions, international codes and resolutions.

(5)

To this end, in accordance with Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interests of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation5, Member States should make efforts to ratify, for the parts falling under Community competence, that Convention as soon as possible, preferably before 31 December 2010.

(6)

Responsibility for monitoring the compliance of ships with the international standards for safety, pollution prevention and on-board living and working conditions lies primarily with the flag State. Relying, as appropriate, on recognised organisations, the flag State fully guarantees the completeness and efficiency of the inspections and surveys undertaken to issue the relevant certificates. Responsibility for maintenance of the condition of the ship and its equipment after survey to comply with the requirements of Conventions applicable to the ship lies with the ship company. However, there has been a serious failure on the part of a number of flag States to implement and enforce international standards. Henceforth, as a second line of defence against substandard shipping, the monitoring of compliance with the international standards for safety, pollution prevention and on-board living and working conditions should also be ensured by the port State, while recognising that port State control inspection is not a survey and the relevant inspection forms are not seaworthiness certificates.

(7)

A harmonised approach to the effective enforcement of these international standards by Member States in respect of ships sailing in the waters under their jurisdiction and using their ports should avoid distortions of competition.

(8)

The shipping industry is vulnerable to acts of terrorism. Transport security measures should be effectively implemented and Member States should vigorously monitor compliance with security rules by carrying out security checks.

(9)

Advantage should be taken of the experience gained during the operation of the Paris Memorandum of Understanding on Port State Control (Paris MOU), signed in Paris on 26 January 1982.

(10)

The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council6, should provide the necessary support to ensure the convergent and effective implementation of the port State control system. EMSA should in particular contribute to the development and implementation of the inspection database set up in accordance with this Directive and of a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

(11)

An efficient port State control system should seek to ensure that all ships calling at ports and anchorages within the Community are regularly inspected. Inspection should concentrate on substandard ships, while quality ships, meaning those which have satisfactory inspection records or which fly the flag of a State complying with the Voluntary International Maritime Organisation (IMO) Member State Audit Scheme, should be rewarded by undergoing less frequent inspections. In particular to this effect, Member States should give overall priority to ships due for inspections with a high risk profile.

(12)

Such new inspection arrangements should be incorporated into the Community port State control system as soon as its various aspects have been defined and on the basis of an inspection-sharing scheme whereby each Member State contributes fairly to the achievement of the Community objective of a comprehensive inspection scheme and the volume of inspections is shared in an equitable manner among the Member States. This inspection-sharing scheme should be revised taking into account the experience gained with the new port State control system with a view to improving its effectiveness. Moreover, Member States should recruit and retain the requisite number of staff, including qualified inspectors, taking into account the volume and characteristics of shipping traffic at each port.

(13)

The inspection system set up by this Directive takes into account the work carried under the Paris MOU. Since any developments arising from the Paris MOU should be agreed at Community level before being made applicable within the EU, close coordination should be established and maintained between the Community and the Paris MOU in order to facilitate as much convergence as possible.

(14)

The Commission should manage and update the inspection database, in close collaboration with the Paris MOU. The inspection database should incorporate inspection data of Member States and all signatories to the Paris MOU. Until the Community maritime information system, SafeSeaNet, is fully operational and allows for an automatic record of the data concerning ships’ calls in the inspection database, Member States should provide the Commission with the information needed to ensure a proper monitoring of the application of this Directive, in particular concerning the movements of ships. On the basis of the inspection data provided by Member States, the Commission should retrieve from the inspection database data on the risk profile of ships, on ships due for inspections and on the movement of ships and should calculate the inspection commitments for each Member State. The inspection database should also be capable of interfacing with other Community maritime safety databases.

(15)

Member States should endeavour to review the method of drawing the white, grey and black list of flag States in the framework of the Paris MOU, in order to ensure its fairness, in particular with respect to the way it treats flag States with small fleets.

(16)

The rules and procedures for port State control inspections, including criteria for the detention of ships, should be harmonised to ensure consistent effectiveness in all ports, which would also drastically reduce the selective use of certain ports of destination to avoid the net of proper control.

(17)

Periodic and additional inspections should include an examination of pre-identified areas for each ship, which will vary according to the type of ship, the type of inspection and the findings of previous port State control inspections. The inspection database should indicate the elements to identify the risk areas to be checked at each inspection.

(18)

Certain categories of ships present a major accident or pollution hazard when they reach a certain age and should therefore be subject to an expanded inspection. The details of such expanded inspection should be laid down.

(19)

Under the inspection system set up by this Directive, the intervals between periodic inspections on ships depend on their risk profile that is determined by certain generic and historical parameters. For high risk ships this interval should not exceed six months.

(20)

In order to provide the competent port State control authorities with information on ships in ports or anchorages, port authorities or bodies or the authorities or bodies designated for that purpose should forward notifications on arrivals of ships, on receipt to the extent possible.

(21)

Some ships pose a manifest risk to maritime safety and the marine environment because of their poor condition, flag performance and history. It is therefore legitimate for the Community to dissuade those ships from entering the ports and anchorages of Member States. The refusal of access should be proportionate and could result in a permanent refusal of access, if the operator of the ship persistently fails to take corrective action in spite of several refusals of access and detentions in ports and anchorages within the Community. Any third refusal of access can only be lifted if a number of conditions designed to ensure that the ship concerned can be operated safely in Community waters, in particular relating to the flag State of the ship and the managing company, are fulfilled. Otherwise, the ship should be permanently refused access to ports and anchorages of the Member States. In any case, any subsequent detention of the ship concerned should lead to a permanent refusal of access to ports and anchorages of the Member States. In the interests of transparency, the list of ships refused access to ports and anchorages within the Community should be made public.

(22)

With a view to reducing the burden placed on certain administrations and companies by repetitive inspections, surveys under Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services7, carried out on ro-ro ferries or high-speed passenger craft by a host State which is not the flag State of the vessel, and which include at least all the items of an expanded inspection, should be taken into account when calculating the risk profile of a ship, the intervals between inspections and the fulfilment of the inspection commitment of each Member State. In addition, the Commission should examine whether it is appropriate that Directive 1999/35/EC be amended in the future with a view of enhancing the level of safety required for the operation of ro-ro ferries and high-speed passenger craft to and from ports of Member States.

(23)

Non-compliance with the provisions of the relevant Conventions should be rectified. Ships which need to be the subject of corrective action should, where the observed deficiencies are clearly hazardous to safety, health or the environment, be detained until the shortcomings are rectified.

(24)

A right of appeal against detention orders by the competent authorities should be made available, in order to prevent unreasonable decisions which may cause undue detention and delay. Member States should cooperate in order to ensure that appeals are dealt with in a reasonable time in accordance with their national legislation.

(25)

Authorities and inspectors involved in port State control activities should have no conflict of interests with the port of inspection or with the ships inspected, or of related interests. Inspectors should be adequately qualified and receive appropriate training to maintain and improve their competence in the conduct of inspections. Member States should cooperate in developing and promoting a harmonised Community scheme for the training and assessment of competences of inspectors.

(26)

Pilots and port authorities or bodies should be enabled to provide useful information on apparent anomalies found on board ships.

(27)

Complaints from persons with a legitimate interest regarding on-board living and working conditions should be investigated. Any person lodging a complaint should be informed of the follow-up action taken with regard to that complaint.

(28)

Cooperation between the competent authorities of Member States and other authorities or organisations is necessary to ensure an effective follow-up with regard to ships with deficiencies, which have been permitted to proceed, and for the exchange of information about ships in port.

(29)

Since the inspection database is an essential part of port State control, Member States should ensure that it is updated in the light of Community requirements.

(30)

Publication of information concerning ships and their operators or companies which do not comply with international standards on safety, health and protection of the marine environment, taking account of the companies’ fleet size, may be an effective deterrent discouraging shippers from using such ships and an incentive to their owners to take corrective action. With regard to the information to be made available, the Commission should establish a close collaboration with the Paris MOU and take account of any information published in order to avoid unnecessary duplication. Member States should have to provide the relevant information only once.

(31)

All costs of inspecting, which warrant detention of ships, and those incurred in lifting a refusal of access, should be borne by the owner or the operator.

(32)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission8.

(33)

In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to Conventions, international codes and resolutions related thereto and to establish the rules of implementation for the provisions of Articles 8 and 10. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(34)

Since the objectives of this Directive, namely to reduce substandard shipping in waters under Member States’ jurisdiction through improvement of the Community’s inspection system for seagoing ships and the development of the means of taking preventive action in the field of pollution of the seas, cannot be sufficiently achieved by the Member States and can, therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(35)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 95/21/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(36)

This Directive should be without prejudice to the obligations of Member States relating to the time limits for transposition into national law of the Directives set out in Annex XV, Part B.

(37)

The port State control system established in accordance with this Directive should be implemented on the same date in all Member States. In this context, the Commission should ensure that appropriate preparatory measures are taken, including the testing of the inspection database and the provision of training to inspectors.

(38)

In accordance with point 34 of the Interinstitutional Agreement on better law-making9, Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(39)

In order not to impose a disproportionate administrative burden on landlocked Member States, a de minimis rule should allow such Member States to derogate from the provisions of this Directive, which means that such Member States, as long as they meet certain criteria, are not obliged to transpose this Directive.

(40)

In order to take into account the fact that the French overseas departments belong to a different geographical area, are to a large extent Parties to regional port State control memoranda other than the Paris MOU and have very limited traffic flows with mainland Europe, the Member State concerned should be allowed to exclude those ports from the port State control system applied within the Community,

HAVE ADOPTED THIS DIRECTIVE: