You are on page 1of 12

WIMPY

OVIK SUDIRMAN_4212100022
PORT STATE
CONTROL
IS NECESSARY
IINSTITUT TEKNOLOGI SEPULUH NOPEMBER
SURABAYA
OR NOT
?

PORT STATE CONTROL IS NECESSARY OR NOT ?

Contents
I.

Definition................................................................................................................ 2

II.

History................................................................................................................... 2

III.

Detention of Ship Under Port State Control...................................................................2

III.1 Contract being discharged under detention....................................................................3


IV.

Contract discharged by frustration...............................................................................3

IV.1 Discharged by frustration for being out of control............................................................3


A voyage contract can be discharged by frustration if the ship is beyond the control of the party
involved in the contract.................................................................................................. 3
IV.2 Discharged by frustration for extremely long time delay....................................................3
V.

Self-induced detention cannot discharge the contract through frustration..................................4


V.1. Criteria for detaining a ship by PSCO...........................................................................4

VI.

Short period of detention cannot discharge the contract through frustration............................4

VII.

The Port State Control officer Task in Indonesia.............................................................5

VIII.

Basic Port state control officer role in Public Ports...........................................................6

IX.

Port State Control Officer Role In Fishing Port...............................................................7

X.

Conclusion.............................................................................................................. 9

WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

Port State Control is Necessarry or Not ?

I.

Definition
Port State Control (PSC) is the inspection of foreign ships in other national ports by PSC officers
(inspectors) for the purpose of verifying that the competency of the master and officers on board, and the
condition of the ship and its equipment comply with the requirements of international conventions
(e.g. SOLAS, MARPOL, STCW, etc.) and that the vessel is manned and operated in compliance with
applicable international law.

II.

History
In 1978, a number of European countries agreed in The Hague on a memorandum that agreed to audit
whether the labour conditions on board vessels were in accordance with the rules of the ILO. After
the Amoco Cadiz sank that year, it was decided to also audit on safety and pollution. To this end, in 1982
the Paris Memorandum of Understanding (Paris MoU) was agreed upon, establishing Port State Control,
nowadays 26 European countries and Canada. In practice, this was a reaction to the failure of the flag
states - especially flags of convenience that have delegated their task to classification societies - to comply
with their survey and certification duties.
Following on the foundation built by the Paris MOU, several other regional MOUs have been signed, I
ncluding the Tokyo MOU (Pacific Ocean), Acuerdo Latino or Acuerdo de Via del Mar (South and
Central America), the Caribbean MOU, the Mediterranean MOU, the Indian Ocean MOU, the Abuja MOU
(West and Central Atlantic Africa), the Black Sea MOU, and the Riyadh MOU (Persian Gulf).
The United States Coast Guard verifies that all foreign vessels operating in United States waters are in
substantial compliance with international conventions, as well as all applicable U.S. laws, regulations and
treaties. The U.S. is not a member of any Port State Control MOU.

III.

Detention of Ship Under Port State Control


Under Port State Control (PSC), inspection of ships in port would be taken by Port State Control Officer
(PSCO). Annual report of Paris MoU reported a total of 74,713 deficiencies were recorded during port
state control inspections in 2007. These deficiencies resulted in 1,250 detentions in the same
year. Detention of the ship is the last course of action that a PSCO would take upon finding deficiencies
aboard the vessel.
Courses of action a PSCO may impose on a ship with deficiencies (in order of ascending gravity).
1. Deficiencies can be rectified within 14 days for minor infractions

WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

2. Under specific conditions, deficiencies can be rectified when the ship arrives at the next port
3. Deficiencies must be rectified before the ship can depart the port;
4. Detention of the ship
III.1 Contract being discharged under detention
Ships taking visit to port are usually under a certain kind of contract, chartered or responsible for
carrying goods as a carrier. Detention means the ship and the cargo would not be able to perform the
contract according to what is agreed. Ships under detention cannot continue the voyage and arrive at
the destination port as stated in the contract in the specific time assigned in the contract.
As a result of detention the contract is discharged, and it may or may not be discharged by frustration

IV.

Contract discharged by frustration


A contract discharged by frustration is well defined in Taylor v Caldwell. where the contract between
Taylor and Caldwell is held frustrated. It is because the concert hall which is hired by Taylor from
Caldwell is destroyed without fault of either party and the contract is therefore discharged by
frustration.

IV.1 Discharged by frustration for being out of control


A voyage contract can be discharged by frustration if the ship is beyond the control of the party
involved in the contract.
According to Texas Company v. Hogarth Shipping Corp,a voyage charter is carrying out in 1915 while
the British government take control of the vessel while the vessel is in British waters. This requisition
resulted in another vessel being hired to perform the contract. The court held that the original contract
is being frustrated as the original vessel is beyond the control of the party involved.
The case demonstrated the contract can be discharged by frustration while the control of the subject
vessel is under control of a third party which has no relation with the contracted parties.

IV.2 Discharged by frustration for extremely long time delay

The contract can be discharged by frustration if the detention lasts long enough for the
frustration doctrine to be invoked.

In Jackson v Union Marine Insurance Co. the contract is held frustrated. When the vessel
went aground and require a time of 8 months to repair the ship, the delay is too long, the

WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

cargo can be shipped by another charter in a much shorter time. The length of the delay is
long enough to provoked the frustration doctrine.

V.

Self-induced detention cannot discharge the contract through frustration

The contract cannot be discharged by frustration if it is caused by self-induced detention.

V.1. Criteria for detaining a ship by PSCO


The main criteria for detention is that the ship is deemed unsafe to proceed
to sea and that the deficiencies on a ship are considered serious by the
inspector. These deficiencies must be rectified before the ship may sail again.
In the annual report of Paris MOU, it stated that the major deficiencies are:
1. Certification of crew
2. Safety
3. Maritime Security
4. Marine Pollution and Environment
5. Working and Living Condition
6. Operational
7. Management

These deficiencies are the most common concern of a PSCO. When these deficiencies are
clearly hazardous to safety, health, or the environment, the PSCO would require the
hazard to be rectified before the ship can sail or detain the vessel or even issue a formal
prohibition of the ship to operate.
As these deficiencies are self-induced by the ship operator or the ship owner, detention
under PSC for the reasons listed above is not able to reach a frustration to discharge the
contract on the vessel.
VI.

Short period of detention cannot discharge the contract through frustration


The contract cannot be discharged by frustration if the time under detention is not long enough to
provoked the frustration doctrine.

WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

PSC requirement upon detaining a ship


The PSC require a ship being detained to remedy the deficiencies which caused the detention. If the

deficiencies cannot be remedied in the port of inspection, the port state would allow the ship to proceed to
another port under special condition. The ship become free of detention only when all the fee induced by
the inspection and detention is paid by the ship-owner.

No party wants a long detention

Rationally, both the port state and the ship-owner do not want the ship to be detained for
a long time. For the port state, the hazard of the ship might affect the condition of the port,
and the ship-owner understand the vessel can only make money when it is sailing. Neither
party would have the intention to keep the vessel being detained for an extremely long period
of time. Therefore, the time of detention is normally not long enough to provoke the
detention doctrine to discharge a contract.
VII.

The Port State Control officer Task in Indonesia


In conclusion, a voyage contract can be frustrated when: The vessel is beyond the control
of the parties in the contract The time delayed is long enough to provoke the frustration
doctrine Under PSC, detention is mostly caused by self-induced deficiencies which is neither
unforeseeable and unexpected, and the time for detention is not likely being long enough to
provoke the frustration doctrine. Therefore, detention of a ship by PSC cannot discharge a
voyage contract by frustration
Port state control officer task is not easy. He must be able to ensure that the ship is about to
leave the harbor worthy to depart. Sea worhty relating to the safety of passengers and goods
during a boat trip. Port state control officer is the official holder of the safety function, said
Heru Prasetyo, Head of Legal and Foreign Cooperation, Ministry of Transportation. Ship
safety in marine transportation dictionaries are circumstances that ships meet the
requirements of material, construction, building, machinery and electrification, as well as the
stability of the arrangement of radio and electronic equipment including boats. Continually,
the safety of the vessel must be inspected by the harbor master before sailing. Port state
control officer professional duties, among others mentioned in PP 81 of 2000 on navigating
and PP 69 of 2001 on the port. Both PP is implementing regulations of Law No. 21 of 1992
on Shipping. Under article 40 of the latter wet, every ship that enters the port monitored by
the harbormaster. If the ship sailing, the ship must first obtain Sailing Permit from the
harbormaster. To issue the Permit, PSC should check Sea worhty ship.
In practice, the implementation of transportation safety in the waters have not been
implemented optimally. Heru admit it is caused by weak law enforcement by the
harbormaster harbormaster and inadequate qualifications. In the case of Levina I, for
example, revealed that the number of passengers and vehicles carrying dimanifest not the
WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

same as truth. After all, PSC still pass the ship departed. In addition, the safety of the ship is
also influenced by shipping lanes. Tests done Port state control officer certainly different
between the grooves ship voyage along the coast or out to sea alone. But unfortunately, until
now the Government has yet to implement the mandate to form the PP Shipping Law
Shipping Channel. According to Heru, this poses a potential dispute between the Department
of Transportation to the Department of Marine and Fisheries.
Another effort to support the safety of transport in the waters is through the National
Transportation Safety Committee (NTSC) and Search and Rescue (SAR). Both are nonstructural institution under the Department of Transportation, but NTSC is more often the
target of public invective when an accident recurring. The independence of the NTSC One of
the issues raised during these is independence. NTSC is a non-structural in the Department of
Transportation and is responsible to the Minister of Transportation. Established by
Presidential Decree No. 105 of 1999, NTSC task is investigation and research to identify
possible deviations towards transport safety. The emphasis of the investigation is on finding
the cause of the accident so that in the future the same cause accident does not happen again.
NTSC final report must be given to the Minister of Transportation as a recommendation.
When participants Tragedy Transport and Role of Insurance, Wednesday (20/6) and asked is
there independence NTSC, Zoelkarnain Oeyoeb, Regulatory Affairs Expert Staff of the
Minister of Transportation and the Transportation Safety NTSC fully independent states.
Nothing can affect the results of the investigation NTSC, said Zoelkarnain. According to him,
NTSC status as a non-structural considered sufficient as collateral. Agrees his colleague,
Joseph refutes NTSC is not independent because it is under the department of transportation.
NTSC can still be independent and to be independent, he cried. Tells of independence NTSC,
Joseph recalled since the time of Prof. Oetarjo alone, often set off an investigation NTSC
without charge a dime from the government. Therefore, Joseph assured NTSC still be
independent. Although considered to be the chairman for life by personnel familiar with the
NTSC and ranks of officers from the Ministry of Transportation, Prof. Diran Oetarjo not
necessarily softened. Former Chairman of the NTSC is precisely the opposite answer, No!
NTSC independence of the investigation stopped after the report is completed, he said. A
recognition that the chairman NTSC enviable next.
VIII.

Basic Port state control officer role in Public Ports.


As we have seen together that the harbormaster is a government official at the port who
was appointed by the minister and has the highest authority to execute and to supervise
compliance with the provisions of the legislation to ensure the safety and security of
shipping. In accordance with its function Port state control officer duties include overseeing
sea worthy ship safety, security, and orderliness at the port. It is appropriate that this
harbormaster is an institution that has an important role in the implementation of the fishing
port functions. See its function as a watchdog in ensuring the safety and security of shipping.
Borne duty was large enough that one of them will be held accountable in the event of
shipwreck at sea (human error / act of God). Besides a harbor master must be able to be
WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

assertive, Brain has a broad knowledge and understanding of each shipping rules so that in
every step taken by the existing regulations.
As a maritime country which has an area of sea than land, port state control officer very
important presence in the port. Port state control officer professional duties has also been
enshrined in Law No. 17 Year 2008 on the voyage, as well as PP 61 Year 2009 concerning
Port. However this has not been implemented optimally. Several factors namely: the
harbormaster who have qualified in the sense of not yet fully mastered Bandar orderly
regulation, law enforcement is not earnest.
According to Law number 17 of 2008 Port state control officer perform safety functions and
that includes shipping security, implementation, monitoring and enforcement in the field of
transport in the waters, port, maritime and environmental protection in the port. In carrying
out the functions of safety and security as referred to in Article 207 paragraph (1) the harbor
master has the task:
A. oversee sea worthy vessel, safety, security and order in the port;
B. oversee orderly ship traffic in the waters of the harbor and navigation channel;
C. supervise activities over the unloading in the port waters;
D. supervise the activities of salvage and underwater works;
E. oversees the activities of the delay of the vessel;
F. oversee scouting;
G. supervise the loading and unloading of dangerous goods and hazardous materials and
toxic waste;
H. supervise refueling;
I. supervise the order of embarkation and disembarkation of passengers;
J. supervising dredging and reclamation;
K. oversees the activities of construction of port facilities;
L. carry out search and rescue assistance;
M. lead pollution prevention and
N. fire fighting in ports; and
O. oversee the implementation of the protection of the maritime environment.
IX.

Port State Control Officer Role In Fishing Port


Indonesia as a country fully maratim run sovereignty marine sector policy. Including in the
case, the functioning shahbandar placed in the fishing port. But the existence of this
harbormaster has its own uniqueness. Because the world of international shipping in the port
only recognizes Port state control officer general.
The tasks harbormaster in the fishing port, according to Law 45 of 2009 Article 42, namely:

Issue of Approval of Sailing


WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

Set the arrival and departure of Fishing Vessels


Check the reset completeness of document fishing boat.
Technical and nautica double check and inspect fishing vessels fishing gear, fishing
and stone tools.
examine and certify the employment agreement sea.
Check the log book of arrest and transport of fish.
Adjusting traffic navigation and fishing boats in the fishing port.
Oversee scouting.
Supervise refueling.
Supervise activities of construction of the facility
Carry out search and rescue assistance.
Lead pollution prevention and fire fighting in the fishing port.
Oversee deploy maritime environmental protection.
Checking compliance monitoring fishing boats.
Report Publishes Letter Fishing Vessel Arrivals and Departures, and
Checking certificate of the fish.

He also explained that the removal of personal harbormaster in the fishing port under the
authority of the Ministry of transportation. So that the Ministry of Transport (MoU) still
provide supervision on understanding aspects of safety of navigation. But technically
administration and operations already under the Ministry of Maritime Affairs and Fisheries
(MMAF). In an effort to realize the vision of the Ministry of Maritime Affairs and Fisheries
(MMAF) to make Indonesia as the country producing the largest marine and fisheries
products in 2015, in 2011 the CTF and the Ministry of Transportation (Ministry of
Transportation) signed a Memorandum of Understanding on Development of Marine
Resources and Fisheries. Joint Agreement signed by the Minister of Marine and Fisheries,
Fadel Muhammad and Minister of Transportation, Freddy aims to optimize and enhance the
human resource capabilities of marine and fisheries as well as the exchange of data and
information especially in the field to Port state control officer. Fishing port that will be
assigned in various fishing ports in Indonesia. With the harbormaster in the fishing port, the
ship owners, especially fishing boats do not have to bother anymore to take care of all
matters relating to the administration before sailing for fishing. But it remains to be pocketed
SLO and SIB. The difference, if former owner of the vessel must be to Fisheries and Adpel or
Port state control officer to get two letters, it is now quite simply to the fishing port, because
the fishing port has been given authority to publish SIB, because now we've got harbormaster
himself.
Port state control officer presence in the fishing port is a very important thing to remember its
duties and functions. In some cases that occurred in the region, the absence Port state control
WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

officer in the fishing port often cause delays in the operational activities of fishing vessels.
Fishermen and businesses are also often not able to take care of Permit Sailing / Sailing
Approval Letter (SIB / SPB) when the letter is one of the obligations that must be owned by a
fishing vessel before conducting catching or transporting fish. Appointment of a
harbormaster fisheries is also an effort to facilitate fishermen and fisheries entrepreneurs to
sell their catch abroad. That is because one of the duties and authority of a harbormaster as
stipulated in Law No. 45 Year 2009. On Fishing was Examine the log book catching and
transporting fish. Port state control officer existence in the fishing port in addition be
responsible for issuing mailing administration for fishing vessels and fish transport, also
plays a role in maintaining the safety of shipping and implement the provisions related to
responsible fisheries management. Thus Port state control officer Fishing Port indirectly also
have an important role in preventing and combating / tackle Illegal Unreported and
Unregulated (IUU) Fishing. But now the sheer number of fishing ports Port state control
officer very less. Ideally Ministry of Maritime Affairs and Fisheries (MMAF) has 816
harbormaster in the fishing port. In 2011 was inducted 48 people Port state control officer
fishing port that will be assigned in various fishing ports in Indonesia by Mr. Freddy as
transport minister. So the total number of existing harbormaster 96 people or only about
11.76% only. Expected future Port state control officer number of fishing ports can be added
again given the role that is vital for the operation of fishing activities. Not only adds in
quantity, but the quality of human resources that become harbormaster later to note, too.
X.

Conclusion
From the above explanation, it was concluded that the PSC is indispensable in Indonesia.
because its contribute very important in world shipbuilding and marine transportation.
However, its performance is still very need to be addressed, because there are many cases
that hit the PSC itself. for the advancement of Indonesian maritime world needs the
cooperation of many parties to improve and enhance the performance of PSC Indonesia, due
to good supervision will reduce the amount of fraud and accidents that sometimes still occur
Indonesian maritime business world.
So, The Port State Control is Necessary.

WIMPY OVIK SUDIRMAN_4212100022

PORT STATE CONTROL IS NECESSARY OR NOT ?

References
1. "Memorandum of Understanding on Port State Control in the Asia-Pacific Region", as amended
20 November 2008. Available from:http://www.tokyo-mou.org/
2. "Latin American Agreement on Port State Control of Vessels (Via del Mar, 1992)", as amended
2008. Available from:http://www.acuerdolatino.int.ar/
3. "Caribbean Memorandum of Understanding on Port State Control", 1996. Available
from:http://www.caribbeanmou.org
4. "Memorandum of Understanding on Port State Control in the Mediterranean Region", as
amended 27 November 2006. Available from:http://www.medmou.org
5. "Indian Ocean Memorandum of Understanding on Port State Control", as amended October 2003.
Available from:http://www.iomou.org.
6. "Memorandum of Understanding on Port State Control for the West & Central African Region",
30 October 1998. Available from:http://www.abujamou.org
7. "Black Sea Memorandum of Understanding on Port State Control", as amended 1 January 2006.
Available from:http://www.bsmou.org

WIMPY OVIK SUDIRMAN_4212100022

1
0

PORT STATE CONTROL IS NECESSARY OR NOT ?

8. "Riyadh Memorandum of Understanding on Port State Control in the Gulf Region", June 2005.
Available from:http://www.riyadhmou.org/
9. Paris Mou (2007), "Deficiencies per major category", Annual Report 2007 - Paris MoU on Port
State Control, Month Date, pp.22-23.
10. zayir, Z.O. (2004), "Practical Implication of Port State Control: The Contractual Effect of Port
State Control Detentions". In Mitropoulos, E.E. Port State Control, 2nd ed, LLP, London, pp.509,
520-521
11. Taylor v Caldwell [1863] 122 ER 309
12. Owen, T. (2009), "Contract Law Concept", [LGT4016] Maritime Law Lecture Note, p.61.
13. Texas Company v. Hogarth Shipping Corp (1921) 256 U.S. 619
14. Jackson v Union Marine Insurance Co (1874) L.R. 10 C.P. 125
15. Paris Mou (2009), The Paris Memorandum of Understanding on Port State Control. Deficiencies,
detentions and rectifications. Available
from:http://www.parismou.org/ParisMOU/Organisation/About+Us/Detention/xp/menu.3961/defa
ult.aspx[Accessed: March 11, 2009].

WIMPY OVIK SUDIRMAN_4212100022

1
1