Resolution MSC.159(78)
INTERIM GUIDANCE ON CONTROL AND COMPLIANCE MEASURES TO ENHANCE MARITIME SECURITY
(adopted on 21 May 2004)
THE
MARITIME SAFETY COMMITTEE,
RECALLING
that regulation XI-2/9 of the International Convention for the Safety of Life
at Sea, 1974 (hereinafter referred to as the "Convention"), entitled
Control and Compliance Measures, provides for the control of ships already in a
port and for the control of ships intending to enter a port of another
Contracting Government to the Convention,
RECALLING
ALSO that the Conference of Contracting Governments to the Convention which
adopted Special Measures to enhance Maritime Security has also adopted, on 12
December 2002, Conference resolution 3 which in operative paragraph 1(c)
invited the Organization to consider the need and, if necessary, develop
further guidance on control and compliance measures on aspects other than those
already addressed in part B of the International Ship and Port Facility
Security (ISPS) Code (hereinafter referred to as the "ISPS Code"),
ACKNOWLEDGING
the need to supplement the guidance, which is presently provided in paragraphs
B/4.29 to B/4.46 of the ISPS Code in relation to the exercise of control and
compliance measures envisaged in regulation XI-2/9 of the Convention,
RECOGNIZING
that the consistent, uniform and harmonized implementation of the control and
compliance measures will contribute towards the enhancement of maritime
security,
HAVING
CONSIDERED the recommendations of the Sub-Committee on Flag State Implementation
at its twelfth session,
1.
ADOPTS the Interim Guidance on Control and Compliance Measures to enhance
Maritime Security (hereinafter referred to as "the Interim Guidance")
set out in the Annex to this resolution;
2.
INVITES SOLAS Contracting Governments, when exercising control and compliance
measures pursuant to the provisions of regulation XI-2/9 of the Convention to
apply the aforementioned Interim Guidance;
3.
URGES SOLAS Contracting Governments and the industry to submit to the Committee
information, observations, comments and recommendations based on the practical
experience to be gained through the application of the Interim Guidance;
4.
AGREES to review and revise as necessary, at an appropriate time, the Interim
Guidance in the light of the practical experience to be gained through its
application.
INTERIM GUIDANCE ON CONTROL AND
COMPLIANCE MEASURES TO ENHANCE MARITIME SECURITY
1.1
This document is intended to provide basic guidance on the conduct of control
and compliance measures, in accordance with the provisions of regulation XI-2/9
of the International Convention for the Safety of Life at Sea, 1974, as amended
(hereinafter referred to as "SOLAS"), in order to afford consistency.
It is also the goal of this document to assist in the recognition and
rectification of perceived deficiencies in the ship’s security plan, its
security equipment, its interface with the port facility, or the ship’s
personnel. The impact of such perceived deficiencies on the ability of the ship
to conform to its security plan and, where clear grounds exist for suspecting
that such deficiencies exist, to provide guidance concerning the application of
control and compliance measures for ships in port and for ships intending to
enter ports.
1.2
Nothing in this Guidance prejudices Contracting Governments to SOLAS
(hereinafter referred to as "Contracting Government") from taking
measures having a basis in, and consistent with, international law to ensure
the safety or security of persons, ships, port facilities and other property in
cases where the ship, although in compliance with SOLAS chapter XI-2 and part A
of the International Ship and Port Facility Security Code (hereinafter referred
to as the "ISPS Code"), is still considered to present an
unacceptable security risk (ISPS Code paragraph B/4.34).
1.3
This Guidance applies to the exercise of control and compliance measures in
respect of ships that are required to comply with SOLAS chapter XI-2 and part A
of the ISPS Code.
1.4
Contracting Governments should not give more favourable treatment to ships
flying the flag of a State which is not a Contracting Government to SOLAS and
not a Party to the 1988 SOLAS Protocol*. Accordingly, the requirements of SOLAS
regulation XI-2/9, the guidance provided in part B of the ISPS Code and this
Guidance should be applied to those ships, (paragraph B/4.45 of the ISPS Code).
_________________
* Protocol of 1988 relating
to the International Convention for the Safety of Life at Sea, 1974.
INTRODUCTION TO SOLAS REGULATION
XI-2/9
1.5
Under the provisions of SOLAS article I and chapter XI-2 and part A of the ISPS
Code, Contracting Governments are responsible for promulgating laws and
regulations and for taking other steps which may be necessary to give SOLAS
chapter XI-2 and part A of the ISPS Code full and complete effect so as to
ensure that, from the point of view of security, a ship fully complies with the
applicable requirements.
1.6
SOLAS regulation XI-2/9 describes the control and compliance measures
applicable to ships to which SOLAS chapter XI-2 applies. It is divided into
three distinct sections: control of ships already in port; control of ships
intending to enter a port of another Contracting Government; and additional
provisions applicable to both situations (ISPS Code paragraph B/4.29).
1.7
SOLAS regulation XI-2/9.1, on control of ships in port, implements a system for
the control of ships while in the port of another Contracting Government where
duly authorized officers of that Contracting Government, have the right to go
on board the ship to verify that the required International Ship Security
Certificate (ISSC) or an Interim International Ship Security Certificate
(Interim ISSC) is in proper order. Then, if there are clear grounds to believe
the ship does not comply with the relevant regulations, control measures such
as additional inspections or detention may be taken. This system corresponds to
the port State control inspections envisaged in SOLAS regulation I/19. SOLAS
regulation XI-2/9.1 builds on these provisions and allows for additional
measures (including expulsion of a ship from a port to be taken as a control
measure) when duly authorized officers have clear grounds for believing that a
ship is in non-compliance with the requirements of SOLAS chapter XI-2 or part A
of the ISPS Code. SOLAS regulation XI-2/9.3 describes the safeguards that
promote fair and proportionate implementation of these additional measures
(ISPS Code paragraph B/4.30).
1.8
SOLAS regulation XI-2/9.2 applies control measures to ensure compliance for
ships intending to enter a port of another Contracting Government and
introduces an entirely different concept of control within SOLAS chapter XI-2,
applying to security only, available to a port State. Under this regulation
measures may be implemented prior to the ship entering port, to better ensure
security. Just as in SOLAS regulation XI-2/9.1, this additional control system
is based on the concept of clear grounds for believing the ship does not comply
with SOLAS chapter XI-2 or part A of the ISPS Code, and includes safeguards in
SOLAS regulation XI-2/9.2.2 and XI-2/9.2.5 as well as in SOLAS regulation
XI-2/9.3 (ISPS Code paragraph B/4.31).
1.9
The international law implications of SOLAS regulation XI-2/9 are particularly
relevant, and the regulation should be implemented with SOLAS regulation
XI-2/2.4 in mind, as the potential exists for situations where either measures
will be taken which fall outside the scope of SOLAS chapter XI-2, or where
rights of affected ships, outside SOLAS chapter XI-2, should be considered.
Thus, SOLAS regulation XI-2/9 does not prejudice the Contracting Government
from taking measures having a basis in, and consistent with, international law
to ensure the safety or security of persons, ships, port facilities and other
property in cases where the ship, although in compliance with SOLAS chapter
XI-2 and part A of the ISPS Code, is still considered to present a security
risk (ISPS Code paragraph B/4.34).
1.10
The establishment of clear grounds for the application of control measures is
based not only on the ship itself but also on interactions with port facilities
or with other ships. A ship otherwise compliant with SOLAS chapter XI-2 and
part A of the ISPS Code may be subject to appropriate control measures if that
ship had interactions with a non-compliant port facility or ship. In deciding
whether to impose control measures in such cases, consideration should be given
to any special or additional security measures the ship implemented and
maintained during the interaction with the non-compliant port facility or ship
to minimize the risk of a security incident (ISPS Code paragraph B/4.33.6).
1.11
It is also possible that, at any time, reliable information may be received
concerning a ship in port which establishes clear grounds and results in
control measures been immediately applied to the ship without undertaking an
inspection of the ship.
1.12
It should be noted that many of the provisions of part A of the ISPS Code
require that the guidance given in part B of the ISPS Code, albeit
recommendatory, be taken into account. It should also be noted that part B of
the ISPS Code is a process that all parties concerned need to go through in
order to comply with part A of the ISPS Code. For example, section A/9.4 of the
ISPS Code requires that in order for an ISSC to be issued, paragraphs B/8.1 to
B/13.8 of the ISPS Code need to have been taken into account (MSC/Circ.1097).
1.13
When a Contracting Government imposes control measures on a ship, the
Administration should, without delay, be contacted with sufficient information
to enable the Administration to fully liaise with the Contracting Government
(ISPS Code paragraph B/4.35).
1.14
This Guidance addresses the following aspects of the control and compliance
measures:
.1 training and
qualification of duly authorized officers;
.2 ships
intending to enter a port of another Contracting Government;
.3 control of
ships in port;
.4 more detailed
inspection where clear grounds exist;
.5 safeguards;
and
.6 reporting.
1.15
For the purpose of this Guidance:
.1 Chapter means
a chapter of the Convention.
.2 Clear grounds
that the ship is not in compliance means evidence or reliable information that
the security system and any associated security equipment of the ship does not
correspond with the requirements of SOLAS chapter XI-2 or part A of the ISPS
Code, taking into account the guidance given in part B of the ISPS Code. Such
evidence or reliable information may arise from the duly authorized officer’s
professional judgment or observations gained while verifying the ship’s
International Ship Security Certificate or Interim International Ship Security
Certificate issued in accordance with part A of the ISPS Code or from other
sources. Even if a valid certificate is on board the ship, the duly authorized
officers may still have clear grounds for believing that the ship is not in
compliance based on their professional judgment (ISPS Code paragraph B/4.32).
.3 Convention
means the International Convention for the Safety of Life at Sea, 1974 as
amended.
.4 Duly
authorized officer means an official of the Contracting Government duly
authorized by that Government to carry out control and compliance measures in
accordance with the provisions of SOLAS regulation XI-2/9.
.5 ISPS Code
means the International Ship and Port Facility Security (ISPS) Code as defined
in regulation XI-2/1.1.12.
.6 Organization
means the International Maritime Organization.
.7 Regulation
means a regulation of the Convention.
1.16
Terms not otherwise defined in this part shall have the same meaning as the
meaning attributed to them in chapters I and XI-2 and in part A of the ISPS
Code.
1.17
The Organization has adopted various performance standards, guidelines,
directives and interpretations relating to chapter XI-2 and the ISPS Code which
are listed in Appendix 1 and it is recommended that duly authorized officers
familiarize themselves with their contents.
CHAPTER 2.
QUALIFICATIONS AND TRAINING OF DULY AUTHORIZED OFFICERS
2.1
Duly authorized officers are appointed by a Contracting Government to exercise
control and compliance measures under the provisions of regulation XI-2/9.
2.2
It is certain that the professional backgrounds of duly authorized officers
will vary. However, duly authorized officers need to have appropriate knowledge
of the provisions of chapter XI-2 and of the ISPS Code, of shipboard operations
and need to be appropriately qualified and trained to the level required by the
functions that they are authorized to carry out.
2.3
Duly authorized officers should also be able to communicate with the master,
the ship security officer and other officers on the ship in English.
2.4
Duly authorized officers should receive appropriate training to ensure
proficiency in safety procedures when boarding or on board a ship, particularly
if at sea, including emergency evacuation procedures and procedures for
entering enclosed spaces.
2.5
Duly authorized officers when on board a ship should comply with the security
measures and procedures in place on the ship unless such measures are
incompatible with the specific control measures or steps.
2.6
Duly authorized officers should refrain from attempting to breach the security
of a ship.
2.7
Duly authorized officers should carry, and present when boarding a ship, a
photographic identification document indicating their authorization. Procedures
should be in place to allow verification of the identity of those who have been
appointed as duly authorized officers.
2.8
Duly authorized officers should periodically undergo training in order to
update their knowledge. Training seminars or courses should be held with such
frequency so as to ensure the update of their knowledge with respect to legal
instruments related to control and compliance measures to enhance maritime
security.
2.9
Duly authorized officers may be assisted, when appropriate, by persons with
specialized expertise appointed by the Contracting Governments. Such persons
should receive appropriate training, as outlined above.
CHAPTER 3.
SHIPS INTENDING TO ENTER A PORT OF ANOTHER CONTRACTING GOVERNMENT
INFORMATION TO BE PROVIDED BY SHIPS
PRIOR TO ENTRY INTO PORT
3.1
The Contracting Government may, in ensuring compliance with chapter XI-2,
require that ships intending to enter its ports provide the following
information (regulation XI-2/9.2.1):
.1 confirmation
that the ship possesses a valid ISSC or a valid Interim ISSC and the name of
its issuing authority (regulation XI-2/9.2.1.1);
____________________
* Issuing authority means the
Administration, the recognized security organization who acting on behalf of
the Administration, or the Contracting Government who at the request of the
Administration, has issued the certificate.
.2 the security
level at which the ship is currently operating (regulation XI 2/9.2.1.2.);
.3 the security
level at which the ship operated in the previous ten* calls at port facilities
(regulation XI-2/9.2.1.3);
____________________
* The Maritime Safety
Committee, at its seventy-eighth session, agreed that the requirements under
regulations XI-2/9.2.1.3 to .5 to keep records of past calls at port facilities
and ship-to-ship activities should commence on 1 July 2004 and only apply to
calls made, or activities undertaken, on or after that date (MSC/Circ.1111).
.4 any special
or additional security measures that were taken by the ship in any previous
port where it has conducted a ship/port interface within the timeframe
specified paragraph 3.1.3 above (regulation XI-2/9.2.1.4). For example, a ship
may provide, or be requested to provide, information, that might be recorded in
the ship’s log book or in another document such as the ship’s security log
book*, related to:
_____________________
* Industry practices
recommend that Ship Security Officers maintain a ship’s security log book
wherein, inter alia, security incidents, ship-to-ship activities and other
pertinent security related information is recorded.
.1 measures
taken while visiting a port facility located in the territory of a State which
is not a Contracting Government, especially those measures that would normally
have been provided by port facilities located in the territories of Contracting
Governments (ISPS Code paragraph B/4.37.1);and
.2 any
Declarations of Security that were entered into with port facilities or other
ships (ISPS Code paragraph B/4.37.2);
.5 confirmation
that appropriate ship security procedures were maintained during any
ship-to-ship activity during the period covered by its previous ten calls at
port facilities (regulation XI-2/9.2.1.5). For example, a ship may provide, or
be requested to provide, information related to:
.1 measures
taken while engaged in a ship-to-ship activity with a ship flying the flag of a
State which is not a Contracting Government, especially those measures that
would normally have been provided by ships flying the flag of Contracting
Governments (ISPS Code paragraph B/4.38.1);
.2 measures
taken while engaged in a ship-to-ship activity with a ship flying the flag of a
Contracting Government but not required to comply with the provisions of
chapter XI-2 and part A of the ISPS Code, such as a copy of any security
certificate issued to that ship under other provisions (ISPS Code paragraph B/4.38.2.);
and
.3 in the event
that persons or goods rescued at sea are on board, all known information about
such persons or goods, including their identities when known and the results of
any checks run on behalf of the ship to establish the security status of those
rescued. It is not the intention of chapter XI-2 or part A of the ISPS Code to
delay or prevent the delivery of those in distress at sea to a place of safety.
It is the sole intention of chapter XI-2 and part A of the ISPS Code to provide
States with enough appropriate information to maintain their security integrity
(ISPS Code paragraph B/4.38.3);
.6 other
practical security related information (but not details of the ship security
plan) (regulation XI-2/9.2.1.6). For example, a ship may provide, or be
requested to provide, information related to:
.1 information
contained in the Continuous Synopsis Record (CSR) (ISPS Code paragraph
B/4.39.1);
.2 location of
the ship at the time the report is made (ISPS Code paragraph B/4.39.2);
.3 expected time
of arrival of the ship in port (ISPS Code paragraph B/4.39.3);
.4 crew list*
(ISPS Code paragraph B/4.39.4);
.5 general
description of cargo aboard the ship**; (ISPS Code paragraph B/4.39.5);
.6 passenger
list*** (ISPS Code paragraph B/4.39.6);
__________________
* IMO Crew List – IMO FAL Form 5
** IMO Cargo Declaration – IMO FAL Form 2
*** IMO Passenger List – IMO
FAL Form 6
.7 information
regarding who is responsible for appointing the members of the crew or other
persons currently employed or engaged on board the ship in any capacity on the
business of that ship (ISPS Code paragraph B/4.39.7 and regulation XI-2/5);
.8 information
regarding who is responsible for deciding the employment of the ship (ISPS Code
paragraph B/4.39.7 and regulation XI-2/5); and
.9 in cases
where the ship is employed under the terms of charter party(ies), who are the
parties to such charter party(ies). (ISPS Code paragraph B/4.39.7 and
regulation XI-2/5).
ASSESSMENT OF INFORMATION RELATED TO
SHIPS PRIOR TO ENTRY INTO PORT
3.2
Every ship to which chapter XI-2 applies intending to enter the port of another
Contracting Government shall provide the information described in regulation
XI-2/9.2.1 on the request of a duly authorized officer of that Government. The
master may decline to provide such information on the understanding that
failure to do so may result in denial of entry into port (regulation
XI-2/9.2.2). In the event that the entry of a ship into port is denied, the
Contracting Government shall forthwith inform in writing the Administration
specifying that the entry of the ship into port has been denied and the reasons
thereof. The Contracting Government shall also notify the recognized security
organization, which issued the certificate relating to the ship concerned and
the Organization (regulation XI-2/9.3.1).
3.3
If the assessment of the available information related to the ship does not
establish clear grounds for believing that the ship is in non-compliance with
the requirements of chapter XI-2 or part A of the ISPS Code, the Contracting
Government may allow the ship to enter port.
CLEAR GROUNDS ESTABLISHED FROM THAT
ASSESSMENT
3.4
If the assessment of the available information relating to the ship establishes
clear grounds for believing that the ship is in non-compliance with the
requirements of chapter XI-2 or part A of the ISPS Code, the Contracting
Government shall attempt to establish communication with and between the ship
and the Administration and/or the recognized security organization in order to
rectify the non-compliance (regulation XI-2/9.2.4).
3.5
If communication under paragraph 3.4 above does not result in rectification, or
if the Contracting Government has clear grounds otherwise for believing that
the ship is in non-compliance with the requirements of chapter XI-2 or part A
of the ISPS Code, the Contracting Government may:
.1 allow the
ship entry into port knowing that clear grounds