7th PAPC CONFERENCE DJIBOUTI

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PORT SECURITY - THE ISPS CODE

Nancy Karigithu: DG, Kenya Maritime Authority 16/12/08

Background

PortsPorts 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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BackgroundTwo 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.**

Regulation

Scopeissues of maritime safety and security; legal liability for maritime claims; protection of the marine environment; facilitation of trade; andthe 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 Regulationa) 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.

Port Security GenerallyPorts attract industries, tourists and other undesirable elementsVariety 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. **

**Port SecurityThe 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 CodePort include any place where the ship/port Interface takes place, including areas such as anchorages, waiting berths and approaches from seaward, as appropriate

Port SecurityRequirement for PortsAppoint PFSOUndertake PFSA, draw PFSP for various security levels

Requirements for GovernmentsEnsure Ports comply-undertake review of measures in place**

Port Security - Legal FrameworkThe 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;**

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;**

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;**

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 CodeThe 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; andthe 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 SECURITYTo 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 SECURITYScreen 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 **

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 SECURITYAddressing 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"**

IMO/ILO CODE OF PRACTICE ON PORT SECURITYThe 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.**

**Complementary LegislationThe 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.

Commercial and Insurance ImplicationsNon-compliancePort 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**

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?**

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.**

InsuranceFailure 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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ConclusionPort 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. **

ConclusionEnsure 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.**

**ANY QUESTIONS

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