7th PAPC CONFERENCE DJIBOUTI

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7th PAPC CONFERENCE DJIBOUTI

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PORT SECURITY - THE ISPS CODE Nancy
Karigithu DG, Kenya Maritime Authority 16/12/08
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Background

• Ports
• Ports provide major national interface between a
  country and the outside world.
• A vital element in the national economy.
• Ports operate within a legal framework
• - national maritime policy
• - foundation upon which the State addresses
  matters of maritime safety, security, pollution
  control and protection of the marine
  environment.

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Background

• Two main areas of maritime policy for the
  Governments concerns
•  
• (a) Safety, security and the marine environment.
• These areas are best suited to international
  agreement in order to obtain a level of
  uniformity.
• b) Commercial issues.
• A port is a major national interface between a
  country and the outside world and as such it is a
  vital element in the national economy.

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Regulation

• Scope
• issues of maritime safety and security
• legal liability for maritime claims
• protection of the marine environment
• facilitation of trade and
• the control of maritime commerce itself.
•  
• List is not exhaustive A common clause in IMO
  conventions
• all matters which are not expressly provided for
  in the
• present convention remain subject to the
  legislation of the
• contracting Governments.

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International Basis for Regulation

• a) The United Nations (UN)
• United Nations Convention on the Law of the
  Sea (UNCLOS) 1982
• UNCLOS defines the rights and obligations of
  States with regard to ships in various maritime
  zones ports and inland waters, territorial
  waters, straits, exclusive economic zones and the
  high seas.
• Lays the basis and foundation for coastal, port
  and flag state control over ships.

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Port Security Generally

• Ports attract industries, tourists and other
  undesirable elements
• Variety of unlawful acts - ranging from criminal
  acts like robbery against ships, passengers and
  crew, theft of cargo, to purposed political
  acts or terrorist outrages such as hostage
  taking, piracy, stowaways.

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Port Security

• The IMO International Ship and Port Facility
  Security Code (ISPS Code)
• Applies to
• Port facilities serving cargo ships including
  high speed craft of 500 gross tonnage and above
• Mobile off shore drilling units and such ships
  engaged on international voyages.
• Duty of Government to determine that port
  facilities in
• its territory Comply with the Code
• Port include any place where the ship/port
  Interface takes place, including areas such as
  anchorages, waiting berths and approaches from
  seaward, as appropriate

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Port Security

• Requirement for Ports
• Appoint PFSO
• Undertake PFSA, draw PFSP for various security
  levels
• Requirements for Governments
• Ensure Ports comply
• -undertake review of measures in place

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Port Security - Legal Framework

• The effective implementation of the ISPS code
  depends as much on the operational tasks as in
  the legal framework laid down. As a minimum the
  following should be in law
• an obligation on the Port to take all measures
  necessary to prevent unlawful acts against
  vessels, persons and property within the area of
  the ports jurisdiction
• powers of the port to take appropriate measures
  to discharge its obligations and the provision of
  appropriate personnel for the prevention and
  detection of various forms of unlawful activity
  in the port area

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Port Security Legal Framework

•  
• -Does the Port have to establish its own special
  police force with full law enforcement powers
  or, alternatively, the obligation to cooperate
  with and facilitate the performance of security
  functions by the national security agencies and
  other law enforcement officers, with clear
  provisions on the rights and obligations of the
  port vis a vis such agencies
•  
• -Does the Port have power to establish
  regulations and procedures for port security and
  arrangements for ensuring the effective
  implementation of these procedures including the
  establishment of safety and security drills and
  other procedures required by law or recommended
  in relevant international regulations and
  guidelines

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Port Security Legal Framework

•  
• - does the port have powers to arrest and detain
  vessels and persons attempting to commit offences
  as defined by national law or applicable
  international agreements, and to submit such
  persons to the jurisdiction of the relevant law
  of enforcement of judicial authorities?
•  
• -where the port State is a party to SUA
  Convention the law should grant the necessary
  jurisdiction to the courts to deal with persons
  who commit unlawful acts, even if such acts were
  committed outside the territorial jurisdiction of
  the courts, such jurisdiction will apply only if
  the State has jurisdiction under the terms of the
  convention

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Port Security Legal Framework

• -are there penalties for failing to comply with
  any regulations made by the port or other persons
  duly authorized by law to make such regulations?
  finally
• - what about liabilities of the port for damage
  or loss or resulting from such acts done or
  directions given which turn out to be
  unreasonable or improper, including any
  exemptions or exclusions from liability, as may
  be deemed appropriate?

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Matters not covered by the Code

• The ISPS Code is not a panacea - does not deal
  with all
• aspects of ships and port security
• security of ships and facilities not covered
  under the Code and
• the security of the cargo/ supply chain.
•  
• Whilst it is the duty of the Government to
  provide for these
• matters port authorities must take a proactive
  role in this
• regard because of the potential for contamination
  and
• compromise to their own security arrangements
  under the
• ISPS Code.
•  

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CONTAINER SECURITY

• To ensure complete maritime security, port
  authorities must address themselves to the weak
  links of the container transport chain. The
  security of a laden container is only as good as
  the procedures in place at locations it passes
  through.
• As gatekeeper to the freight transport market
  via their regulatory and licensing oversight,
  they should therefore introduce security criteria
  in the licensing process of
• vehicles, operators, personnel and facilities
  and monitor whether licensees continue to meet
  these security requirements.
• Communicate to Customs information regarding
  operators under their jurisdiction that might be
  useful in the container screening process.

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CONTAINER SECURITY

• Screen employees according to security criteria
  also check worker identification with other
  operators in accordance with national laws and
  develop protocols regarding access to containers
  by high security-risk workers.
• Confirm that operators given licences and permits
  are bona fide operators without criminal records
  pertinent to vehicle/freight crime.
• Maintain information on persistent offenders and
  withdraw licences or refuse to grant permits to
  them

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CONTAINER SECURITY

• - Provide information and advice to operators on
  theft avoidance, safe practices, recommended
  routes, protected parking areas and appropriate
  precautions.
• - Encourage the setting up of secure and safe
  parking areas and freight traffic centres for
  trucks and loads (containers, trailers etc).
• Standards of protection for such areas must be
  defined to commonly agreed levels or criteria.

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CONTAINER SECURITY

• Addressing the security of the container
  transport chain requires a comprehensive
  inter-modal framework integrating measures across
  the entire container transport chain.
• The WCO ( cradle-to-grave container stuffing
  and seal
• management guidelines) signatory to WCO
  container initiatives
• -"Framework of Standards to Secure and
  Facilitate Global Trade"

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IMO/ILO CODE OF PRACTICE ON PORT SECURITY

• The 2002 security conference also invited IMO and
  the ILO to establish a joint Working Group to
  undertake more detailed work on comprehensive
  port security requirements.
• Code of Practice on Security in Ports
• extends the consideration of port security beyond
  the area of the port facility into the whole
  port and
• applies security guidelines to all areas and
  functions of the port, and those working in,
  having business with and requiring access to the
  port or transiting through the port i.e. port
  workers and other port personnel, seafarers,
  passengers and passengers baggage, cargo,
  material and stores, vehicles and equipment
  originating from within and outside the port area.

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Complementary Legislation

• The Convention for the Suppression of unlawful
  Acts against the Safety of Maritime Navigation
  (SUA) 1988. It was intended to improve measures
  for dealing with incidents such as terrorists
  attacks on commercial shipping. It entered into
  force in March 1992.

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Commercial and Insurance Implications

• Non-compliance
• Port operators who are non-compliant may face
  claims from ship operators who suffer losses as a
  result of such non-compliance. A ship can be
  delayed due to alleged non-compliance with the
  ISPS Code for a variety of reasons and for
  failures on the part of a variety of persons.
• Section 14.1 of Part A of the ISPS Code provides
  that Security measures and procedures shall be
  applied at the port facility in such a manner as
  to cause a minimum of interference with, or delay
  to, passengers, ship, ships personnel and
  visitors, goods and services.
• A delicate balance

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Contracts of Carriage ISPS Code

• Maritime contracts for the carriage of goods by
  sea accurately document the rights and duties of
  each party - including clearly defining owners
  and chatterers duties under the ISPS Code as well
  as the fair apportionment of costs.

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Contracts of Carriage ISPS Code

• ISPS clause all delays, costs and expenses
  which result from the ship not being ISPS
  compliant will be for the owners account,
  whereas delays, costs and expenses which result
  from the port facility not being ISPS compliant
  will be for the chatterers account, unless
  caused by the owners negligence
• All foreseeable costs are covered by the clause
  delays, costs expenses imposed by a Port
  Authority under the Code are for the Chatterers
  account. The costs of preparing and complying
  with the Ship Security Plan are for owners
  account. The question that arises is who pays for
  non-compliant ports?

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Insurance

• Marine insurance breach of an express warranty,
  such as a failure to comply with national or
  international regulations for example, could be a
  reason for an insurer to reject a claim that has
  resulted directly from a failure to comply with
  the ISPS Code
• unsafe ports clause may impact on the ships
  calling at the next port after visiting a port
  facility that is not compliant.
• The declaration that a ship is unsafe for having
  come from an un-compliant port may lead to the
  no-compliant ship losing its insurance cover and
  exposure to third party claims.

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Insurance

• Failure for a port to be compliant may constitute
  prima facie proof of negligence and a chatterer
  may have the recourse to sue the port for
  negligence.
• The presence of stowaways on a ship could also be
  proof of something seriously wrong with security
  in the port of origin and thus conclusive proof
  of negligence.

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Conclusion

• Port authorities must acknowledge and observe
  international maritime transport conventions.
• Port authorities ensure that to the best of
  their abilities that real compliance with the
  ISPS code, rather than superficial paper
  compliance, is achieved.

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Conclusion

• Ensure that many of the basic provisions of the
  ISPS extend to those vessels and ports not
  covered by the ISPS
• They must lobby Governments to ensure that the
  law keeps up to date with the international
  requirements that have a bearing on port and
  cargo operations.

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ANY QUESTIONS