FOOTNOTES

1. Flag, Coastal and Port State Control - Closing the Net on Unseaworthy Ships and their Unscrupulous Owners published in "Sea Changes" [Institute of Marine Law, University of Cape Town] Vol 16, 1994 at p.57. Also on the UCT Marine & Shipping Law Website at http://www.uctsshiplaw.com/portstat.htm
2. See also generally the unpublished 1995 LLM dissertation of Grant Clark The Sub-Standard Ship and Port State Control in South Africa available via the UCT Marine & Shipping Law website supra.
3. The international obligations applicable to flag state jurisdiction, and the failure of the flag state system generally was highlighted in my Sea Changes article Id at page 61 et seq.
4. Id. at page 65.
5. McDougall & Burke The Public Order of the Oceans, 1987 para 156, in which the authors refer also to the US prohibition laws which were applied to foreign vessels calling at US ports (see e.g. Cunard SS Co v Mellon 262 US 119 (1922) and US v Bevans Three Wheat 336-390).
6. As early as 1916 South Africa followed the lead of Australia in passing a act which prohibited the discharge of oil into navigable waters. This lead was followed by the UK in its 1922 Oil in Navigable Waters Act. Apart from a draft convention prepared in 1926 in Washington, there was no international oil pollution control until the 1954 International Convention for the Prevention of Pollution of the Sea by Oil. This Convention took up the proposals of the 1952 Faulkner Committee and was in turn used to found the oil pollution prevention provisions of the 1958 Law of the Sea Convention.
7. The most recent being the loss of the bulker Leros Strength which went down with all hands in February this year, in circumstances which point to the vessel being well past her safe working life. See also the Institute of London Underwriters' Casualty Returns below.
8. See Clarke id at page 209.
9. The International Labour Organisation, the International Maritime Organisation and the International Transport Workers' Federation respectively.
10. See below.
11. It is interesting to note that this conference followed the loss of the Titanic on her maiden voyage across the Atlantic in April 1912 - a disaster which prompted the UK government to call a conference to discuss safety issues.
12. International Convention for the Safety of Life at Sea.
13. Adopted in 1929, 1948, 1960 and 1974.
14. Then known as the International Maritime Consultative Organisation.
15. Comite Maritime International, the international association of maritime law associations.
16. The United National Convention on the Law of the Sea, 1958. UNCLOS art 25 may be seen as the first international legal basis for port state control. The article empowered states to take necessary steps to prevent any breach of conditions to which the call of any vessels at its ports may be subject. Arts 216 and 218 enable a port state to enforce international anti-dumping and anti-pollution measures, with art 219 giving states power to take administrative measures to prevent errant vessels from leaving port. To the extent that an unseaworthy ship may, at least through her bunkers, present an oil pollution threat, authority may be found in these articles for the intervention of a port state authority in most instances. The only limitation was that steps taken be reasonable, public and not discriminatory.
17. Resolution A787(19): Procedures for Port State Control. The full text of this important document is reproduced with the permission of the IMO on the UCT Marine & Shipping Law website at http://www.uct.ac.za/depts/shiplaw/marconv.htm
18. Resolution A742(18) adopted November 1993.
19. The Paris MOU binds the maritime authorities of Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Netherlands, Norway, Portugal, Spain, Sweden, UK and Northern Ireland. The Russian Federation became a member on 1st January 1996 and the MOU also admits `co-operating authorities' (e.g. US Coast Guard of Croatia and Japan).
20. The effectiveness of the Paris MoU resulted in the IMO passing Resolution A.682(17) on "Regional Co-operation in the Control of Ships and Discharges", and inviting governments to form regional initiatives for port state control in co-operation with IMO.
21. The relevant instruments are listed as follows:
    * International Convention on Load Lines, 1966 (with 1988 Protocol).
    * International Convention for the Safety of Life at Sea, 1974 (with 1978 and 1988 Protocols).
    * International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) with its 1978 Protocol.
    * International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 ("STCW").
    * Convention on the International Regulations for Preventing Collisions at Sea, 1972.
    * International Convention on Tonnage Measurement of Ships, 1969.
    * Merchant Shipping (Minimum Standards) Convention, 1976 (ILO Convention No 147).
22. Paris MoU para 3.4. "Clear grounds" include notification by another authority or complaint of the ship's master, crew or any person "with a legitimate interest in the safe operation of the ship
23. See the US Coastguard prioritisation of vessels referred to infra.
24. Paris MoU para 3.7.
25. Running a detention order, or failing to comply with it, remains a real possibility: The Cypriot panamax bulk carrier San Marco (35538 grt, built in1968 ) was detained by Vancouver port authorities in 1993 after which BV withdrew her class. She was allowed to proceed under tow, unmanned, for repairs in Mexico. But no repairs were undertaken, the vessel slipped her tow, took her crew back on board, and proceeded to load a full cargo of fertiliser. During this voyage, she hit heavy weather off Cape Town and lost shell plating 14x7m in the way of number 1 cargo hold. That the vessel reach the safety of Cape Town and did not sink with all hands, was nothing short of a miracle. The San Marco was as substandard a ship as one could find, yet the Hellenic Register issued a full suite of classification certificates after BV had withdrawn theirs.
26. See the following websites for monthly detention lists:
    The UK at http://www.detr.gov.uk/msa/det97/det97.htm
    Australia at http://www.amsa.gov.au/sp/shipdet/stat9612.htm
    The USA Coastguard at http://www.uscg.mil/hq/g-m/psc/detained.htm
27. This binds the maritime authorities of Australia, Canada, People's Republic of China, Fiji, Hong Kong, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Papua New Guinea, Philippines, Russian Federation, Republic of Singapore, Solomon Islands, Thailand, Republic of Vanuatu, Socialist Republic of Vietnam.
28. Binding Argentina, Brazil, Chile, Columbia, Equador, Mexico, Panama, Peru, Uruguay and Venezuela.
29. Rocram, 1989.
30. The Caribbean MOU binds Antigua and Barbuda, Barbados, Dominica, Grenada, Guyana, Jamaica, Netherlands and Belise, Surinam and Trinidad & Tobago.
31. The public face of USA port state control may be viewed at its comprehensive website at http://www.uscg.mil/hq/g-m/psc.htm from which much of the material used in this précis has been taken.
32. Paragraph C13 of the US CG' s Instruction Procedures defines the `Sub-standard Ship' as follows:
    In general a vessel is regarded as sub-standard if the hull, machinery, or equipment, such a life-saving, fire fighting and pollution prevention, are substantially below the standards required by US laws or international conventions owing to: (a) the absence of required principle equipment or arrangement; (b) gross non-compliance of equipment or arrangement with required specification; (c) substantial deterioration of the vessel structure or its essential equipment; (d) non-compliance with applicable operation and/or manning standards; or (e) clear lack of appropriate certification or demonstrated lack of competence on the part of the crew. If these evident factors as a whole, or individually endanger the vessel, persons on board, or present an unreasonable risk to the marine environment, the vessel should be regarded as a sub-standard ship.
33. Oil Pollution Act, 1991
34. Title 46, Chapter 33.
35. There is a proposal under discussion at present to reduce the tonnage to 300 GRT. 33 USC 1221-1232.
36. The Lloyds List publications do not unfortunately give owners particulars - see for e.g. Lloyds List April 29 1997 page 13. It would appear that Lloyd's List is reluctant to put owners' and classification societies' names to print?
37. See the publication of the lists at the USCG website.
38. The May 1977 targeted flag state list is headed by Honduras, followed by Belize, Morocco, Ukraine and Romania.
39. Honduras' detention ratio was 56% of all flag vessels inspected.
40. The May 1997 figures based upon 1996 inspections give the Romanian Registrar of Shipping first place (39%), followed closely by the Hellenic Register (27%).
41. The Report of the Enquiry into the Prevention of Pollution from Merchant Shipping presented by Lord Donaldson and published by HMSO as CM2560. This report should be essential reading for any person interested in maritime safety. For a follow-up by Lord Donaldson, see his Wakeford Memorial Lecture delivered at Southampton on February 26 1996, published at http://www.tcp.co.uk/~glang/wakeford.html#sites
42. Established in 1st April 1994 in anticipation of the publication of the Donaldson report.
43. The site is at http://www.open.gov.uk/dot/msa/msa.htm
44. See for instance the Donaldson Commission paragraph 5.79.
45. These are passenger and ro-ro ships; specialised carriers such as chemical or gas carriers; ships known from Paris MOU data bases to have had recent reported deficiencies; ships of specified flag states that have a poor safety record as assessed by their detention ratio within other Paris MOU members; bulk carriers.
46. To be found at http://www.open.gov.uk/dot/msa/det96/det9612.htm
47. The delinquent registers (with detentions) are Cyprus (32) Russia (19) Malta (18), Panama (13) Turkey (12).
48. I am grateful to Capt Peter Murphy for information given to me confirming the legislative provisions of Australian port state control. At http://www.gov.au/sp/shipdet/stat9612.htm
49. Sec 210: Detention of unseaworthy and substandard ships.
50. See my previous article referred to in footnote 1 above.
51. The Spanish tanker Castillo de Bellver, carrying 276 000 tons of light Arabian crude oil, in 1983 suffered a crack amidships, caught fire, broke in half and sank 12 miles off the South African western seaboard. The bulk of the oil was contained in the aft section which was towed out 300 miles, there to sink in 3 000 meters with no significant coastal pollution.
52. The policy report of the Committee chaired by the author can be found on the UCT Marine & Shipping Law website at http://www.uct.ac.za/depts/shiplaw/marpol.htm  The government White Paper is at http://www.uct.ac.za/depts/shiplaw/witpaper.htm
53. Act 2 of 1981 of which section 9 allows the SA Department of Transport to require a shipmaster to give details of his ship and cargo, produce all papers and documents relative to the ship and allow authorised persons on board the ship to inspect the ship, its equipment and cargo.
54. For the text of the Marine Traffic Act see the UCT site Id. at http://www.uct.ac.za/depts/shiplaw/martraf2.htm
55. The proposed legislation to give effect to SAMSA can be found on the UCT Marine and Shipping Law website at http://www.uct.ac.za/depts/shiplaw/marleg.htm
56. On 18 April 1997 the MV Neamt, 5931 grt, was detained by the SA Department of Transport under port state control measures. She had taken 48 days to sail from West Africa with a cargo of cashew nuts. Lloyds List Africa Weekly, May 9 reports: With no radar, no navigation lights and a useless compass, the crew found their way to Cape Town by asking passing vessels on their VHF radios where they were. On the way, the vessel's engines caught fire seven items, as the pistons have no rings and blowbacks caused small fires throughout the voyage. Of her three generators, only one worked sporadically. The Chief Engineer reported that all the carbon dioxide fire-fighting cylinders were empty and the engine's cooling systems were completely broken down, as water supply pipes had rusted through from the inside. Inside the vessel is constantly dark because all the light bulbs have blown, and there are no spares. The vessel's crew have not been paid for four months, and there is no food on board. The refrigerators are not working …
57. I am grateful to Mr Tony Martin of the NZ MSA for his useful input.
58. Sec 55 of the Maritime Transport Act, 1994.
59. Id. Sub-sec (d)
60. See below.
61. The authority must authorise "properly qualified persons" for inspections, but may be assisted by "any person with the required expertise" provided they have no commercial interest in the ship or in the port. See futher para 3.5 of the Paris MoU.
62. See for eg. The Paris MoU para 3.13.
63. See for eg. New Zealand's Maritime Transport Act, 1994 sec 55(7) which allows port state control decisions to be taken on appeal to a District Court.
64. See for e.g. the South African Admiralty Jurisdiction Regulation Act, 1983, sec 5(4) "Any person who … without reasonable and probable cause obtains the arrest of property … shall be liable to any person suffering loss or damage as a result thereof for that loss or damage."
65. Section 384(1).
66. Maritime Transport Act, 1994 - sec 34.
67. See for eg Paris MoU para. 3.12 which upon revelation of deficiencies allows all inspection costs (by implication the revealing inspection and all subsequent measures) to be recovered from the deficient vessel's owners. The ship need not be released from detention until such costs are paid. A similar provision is found in the New Zealand Maritime Transport Act, 1994, sec 56.
68. Published monthly by Lloyd's List - see the 1996 cumulative returns in Lloyd's List April 19 at p. 9
69. See Lloyd's List April 19 at p 8: "The Leros Strength sank in heavy seas about 30 miles west of Stavanger on February 8. Master had reported leakage to the bow causing navigational problems. 20 crew missing. Oil spillage occurred."
70. Imposing improved standards of training and watchkeeping and in effect from 1 February 1997.
71. See above.
72. Lloyd's List March 27 1977.
73. See the ITF website at http://www.itf.org.uk for details of its campaign.

Updated 15 June 2000