A.847(20) GUIDELINES TO ASSIST FLAG STATES IN THE IMPLEMENTATION OF IMO INSTRUMENTS

 

Resolution A. 847(20)

GUIDELINES TO ASSIST FLAG STATES IN THE IMPLEMENTATION OF IMO INSTRUMENTS

(Adopted on 27 November 1997)

 

 

THE ASSEMBLY,

 

RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning maritime safety and the prevention and control of marine pollution from ships,

 

RECALLING FURTHER that, at its sixteenth session, it affirmed the contents of resolution A.500(XII) and the assignment of the highest priority to promoting the implementation of relevant international instruments for the improvement of maritime safety and pollution prevention,

 

RECOGNIZING that international law requires flag States to meet the responsibilities set forth in generally accepted international regulations, procedures and practices contained in IMO instruments and other mandatory instruments, and to take any steps which may be necessary to secure their observance,

 

REAFFIRMING its desire that ships comply at all times with maritime safety and pollution-prevention standards laid down in relevant IMO instruments,

 

BEING AWARE of the difficulties some States have in giving full and complete effect to the provisions of IMO instruments,

 

RECOGNIZING the importance of the ratification and implementation by all flag States of relevant instruments adopted by other international bodies,

 

DESIRING to assist Member Governments to ensure achievement of the IMO objectives,

 

HAVING ADOPTED resolution A.739(18) on Guidelines for the authorization of Organizations acting on behalf of the Administration and resolution A.789(19) on Specifications on the survey and certification functions of recognized Organizations acting on behalf of the Administration,

 

NOTING that, while States may realize certain benefits by becoming party to instruments aiming at promoting maritime safety and the prevention of pollution from ships, these desired benefits can only be obtained when all Parties concerned fully carry out their obligations as required by the conventions,

 

NOTING FURTHER that the ultimate effectiveness of any convention depends upon all States:

 

.1 becoming party to the instruments mentioned above;

.2 implementing them widely and effectively;

.3 enforcing them rigorously; and

.4 reporting to the Organization, as required,

 

HAVING CONSIDERED the recommendations made by the Maritime Safety Committee at its sixty-eighth session and by the Marine Environment Protection Committee at its fortieth session,

 

1. ADOPTS the Guidelines to Assist Flag States in the Implementation of IMO Instruments, set out in the annex to the present resolution;

 

2. REQUESTS the Maritime Safety Committee and the Marine Environment Protection Committee to conduct, with the direct participation of Governments concerned, a comprehensive analysis of difficulties encountered by them in the implementation of IMO instruments, with a view to identifying needs and appropriate solutions;

 

3. REQUESTS ALSO the above Committees to keep the Guidelines under continuous review and to update them in the light of the results of the comprehensive analysis referred to above;

 

4. REVOKES resolution A.740(18).

 

Annex

GUIDELINES TO ASSIST FLAG STATES IN THE IMPLEMENTATION OF IMO INSTRUMENTS

 

1. GENERAL

 

1.1 These Guidelines are intended to provide flag States with a means to establish and maintain measures for the effective application and enforcement of the following IMO Conventions:*

 

____________________

*Reference is made to such applicable amendments as may be in force at any time.

 

.1 the International Convention for the Safety of Life at Sea (SOLAS), 1974;

.2 the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78);

.3 the International Convention on Load Lines (LL), 1966; and

.4 the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978.

 

1.2 Under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and of the above IMO conventions, Administrations are responsible for promulgating laws and regulations and for taking all other steps which may be necessary to give these instruments full and complete effect so as to ensure that, from the point of view of safety of life at sea and protection of the marine environment, a ship is fit for the service for which it is intended.

 

1.3 Administrations should improve the adequacy of the measures which are taken to give effect to those conventions and protocols which they have accepted and ensure that they are effectively monitored. Improvement can be made through rigorous and more effective application and enforcement of national legislation. These Guidelines can help to achieve this improvement.

 

1.4 Some flag States have encountered difficulties in fully implementing IMO instruments and in ensuring that prompt and timely surveys are conducted. Reasons for these difficulties include finances, personnel and technical expertise, delegation of authority, division of responsibilities and inadequate supervision of bodies acting on behalf of the flag State.

 

1.5 Technical assistance for flag States experiencing difficulties in meeting their international responsibilities or in complying with these Guidelines is available through IMO.

 

2. INITIAL ACTIONS

 

2.1 When a convention enters into force for a State, the Government of that State must be in a position to implement its provisions through appropriate national legislation and to provide the necessary infrastructure. This means that a Government must have a functioning legislative body to enact laws applicable to ships flying its flag, and to provide for their subsequent enforcement. Consistent with article 94 of UNCLOS and the relevant provisions of the IMO conventions listed in 1.1, this capacity encompasses:

 

.1 the ability of the flag State to promulgate laws which permit effective jurisdiction and control in administrative, technical and social matters over ships flying its flag and, in particular, provide the legal basis for general requirements for registries, the inspection of vessels, safety and pollution-prevention laws applying to such ships and the making of associated regulations;

 

.2 a legal basis for the enforcement of the flag State's national laws, including the associated investigative and penal processes; and

 

.3 the availability in the flag State of sufficient personnel with maritime expertise to assist in the promulgation of the necessary national laws and to discharge the responsibilities of the flag State, including reporting as required by the respective conventions.

 

2.2 A possible framework for national legislation implementing the SOLAS, MARPOL, Load Line and STCW Conventions is given in the appendix.

 

3. IMPLEMENTATION

 

3.1 In order to effectively discharge their responsibilities, flag States should:

 

.1 implement policies through the issuance of national legislation and guidance which will assist in the implementation and enforcement of the convention requirements;

 

.2 assign responsibilities within the Administration to update and revise the policies as necessary;and

 

.3 formally adopt the above within a long-term strategic planning document.

 

3.2 Flag States should seek to establish a support infrastructure capable of administering a safety and environmental protection programme which, as a minimum, should consist of the following:

 

.1 personnel with appropriate technical expertise and background, qualified to guide, direct and manage the programme, as well as providing the continuity in service. Flag States should recruit and train suitable applicants, taking full advantage of existing training and technical assistance offered by IMO;

 

.2 administrative instructions to implement applicable international regulations as well as any interpretative national regulations that may be needed;

 

.3 facilities and personnel commensurate with the number, type and tonnage of ships flying their flag. In determining the number and location of offices needed, flag States should consider data collected from the oversight and control programmes below and the amount of work delegated to recognized organizations. It should be noted that evidence of non-compliance may indicate the need for greater focus on those areas to ensure compliance and/or an increase in programme resources;

 

.4 resources to ensure compliance with basic MARPOL, SOLAS and LL requirements using an audit and inspection programme independent of the entities which have been delegated authority by the flag State to issue the required international certificates and documentation;

 

.5 resources to ensure compliance with the requirements of the STCW Convention, as amended. This includes resources to ensure, inter alia, that:

 

.5.1 training, assessment of competence and certification of seafarers are in accordance with the provisions of the Convention;

 

.5.2 STCW certificates and endorsements accurately reflect the competencies of the seafarers serving on board each ship flying its flag, using the appropriate STCW terminology as well as terms which are identical to those used in the safe manning document issued to the ship;

 

.5.3 impartial investigation of any reported incompetency, act or omission, that may pose a direct threat to safety of life or property at sea or to the marine environment, by the holders of certificates or endorsements issued by that Party, can be held;

 

.5.4 certificates or endorsements issued by the flag State can be withdrawn, suspended or cancelled when warranted, and when necessary to prevent fraud;

 

.5.5 administrative arrangements, including those involving training, assessment and certification activities conducted under the purview of another State, are such that the flag State accepts its responsibility for ensuring the competence of masters, officers and other seafarers serving on ships flying its flag. In this regard, particular reference is made to regulations 1/2, 1/9, 1/10 and 1/11 of the STCW Convention as amended; and

 

.6 resources to ensure that investigations into casualties are conducted and to ensure adequate and timely handling of cases of deficient ships.

 

4. DELEGATION OF AUTHORITY

 

4.1 Many flag States authorize organizations to act on their behalf in conducting the surveys and inspections required under the IMO conventions. Such delegation of authority must be regulated in order to promote uniformity of inspections and maintain established standards. Any delegation of authority to recognized organizations should therefore follow the Guidelines for the authorization of organizations acting on behalf of the Administration (resolution A.739(18))* and the Specifications on the survey and certification functions of recognized organizations acting on behalf of the Administration (resolution A.789(19))** and, in particular, should:

 

_______________

* Resolution A.739(18) became mandatory under SOLAS regulation XI/1 on 1 January 1996.

** Resolution A.789(19) is scheduled to become mandatory under SOLAS regulation XI/1, as amended, on 1 July 1998.

 

.1 determine that the recognized organization has adequate resources in terms of technical, managerial and research capabilities to accomplish the tasks being assigned, in accordance with the Minimum standards for recognized organizations acting on behalf of the Administration set out in appendix 1 to resolution A.739(18);

 

.2 have as its basis a formal written agreement between the Administration and the recognized organizations which should as a minimum include the elements as set out in appendix 2 to resolution A.739(18) or equivalent legal arrangements, and may be based on the Model Agreement for the authorization of recognized organizations acting on behalf of the Administration (MSC/Circ.710/MEPC/Circ.307);

 

.3 specify instructions detailing actions to be followed in the event that a ship is found not fit to proceed to sea without danger to the ship or persons on board, or is found to present an unreasonable threat of harm to the marine environment;

 

.4 provide the recognized 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; and

 

.5 specify that the recognized organization must maintain records which will provide the Administration with data to assist in


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