77thth PAPC CONFERENCE PAPC CONFERENCE DJIBOUTIDJIBOUTI

“ PORT SECURITY - THE ISPS CODE”

Nancy Karigithu: DG, Kenya Maritime Authority Nancy Karigithu: DG, Kenya Maritime Authority 16/12/0816/12/08

BackgroundBackground

PortsPorts• Ports provide major national interface between a country and the Ports provide major national interface between a country and the

outside world. outside world.

• A vital element in the national economy. A vital element in the national economy.

• Ports operate within a legal framework Ports operate within a legal framework

- national maritime policy- national maritime policy

- foundation upon which the State addresses matters - foundation upon which the State addresses matters of maritime safety, security, pollution control and of maritime safety, security, pollution control and protection of the marine environment.protection of the marine environment.

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BackgroundBackground

• Two main areas of maritime policy for the Government’s Two main areas of maritime policy for the Government’s concerns:concerns:

•   

• (a)(a) Safety, security and the marine environmentSafety, security and the marine environment..

These areas are best suited to international agreement in order to These areas are best suited to international agreement in order to obtain a level of uniformity. obtain a level of uniformity.

• b) b) Commercial issuesCommercial issues..

• A port is a major national interface between a country and the 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 outside world and as such it is a vital element in the national economy.economy.

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Regulation Regulation

ScopeScope

• issues of maritime safety and security; issues of maritime safety and security;

• legal liability for maritime claims; legal liability for maritime claims;

• protection of the marine environment; protection of the marine environment;

• facilitation of trade; andfacilitation of trade; and

• the control of maritime commerce itself.the control of maritime commerce itself.

   

List is not exhaustive: A common clause in IMO conventions;List is not exhaustive: A common clause in IMO conventions;

““all matters which are not expressly provided for in the all matters which are not expressly provided for in the

present convention remain subject to the legislation of the present convention remain subject to the legislation of the

contracting Governments”.contracting Governments”. 04/19/23 4

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International Basis for RegulationInternational Basis for Regulation

a) The United Nations (UN) a) The United Nations (UN) United Nations Convention on the Law of the United Nations Convention on the Law of the Sea Sea (UNCLOS) (UNCLOS) 1982 1982

• UNCLOS defines the rights and obligations of States with UNCLOS defines the rights and obligations of States with regard to ships in various maritime zones; ports and inland regard to ships in various maritime zones; ports and inland waters, territorial waters, straits, exclusive economic zones waters, territorial waters, straits, exclusive economic zones and the high seas.and the high seas.

• Lays the basis and foundation for coastal, port and flag Lays the basis and foundation for coastal, port and flag state control over ships.state control over ships.

Port Security GenerallyPort Security Generally

• Ports attract industries, tourists and other Ports attract industries, tourists and other undesirable elementsundesirable elements

• Variety of unlawful acts - ranging from Variety of unlawful acts - ranging from criminal acts like robbery against ships, criminal acts like robbery against ships, passengers and crew, theft of cargo, to passengers and crew, theft of cargo, to purposed “political” acts or terrorist purposed “political” acts or terrorist outrages such as hostage taking, piracy, outrages such as hostage taking, piracy, stowaways. stowaways.

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Port SecurityPort Security

• The IMO International Ship and Port Facility Security The IMO International Ship and Port Facility Security Code (ISPS Code) Code (ISPS Code) – Applies to:Applies to:

Port facilities serving cargo ships including high Port facilities serving cargo ships including high speed craft of 500 gross tonnage and above;speed craft of 500 gross tonnage and above;

Mobile off shore drilling units and such ships Mobile off shore drilling units and such ships engaged on international voyages.engaged on international voyages.

Duty of Government to determine that port facilities in Duty of Government to determine that port facilities in its territory Comply with the Codeits territory Comply with the CodePort include any place where the ship/port Interface Port include any place where the ship/port Interface

takes place, including areas such as anchorages, takes place, including areas such as anchorages, waiting berths and approaches from seaward, as waiting berths and approaches from seaward, as appropriateappropriate

Port SecurityPort Security

• Requirement for PortsRequirement for Ports– Appoint PFSOAppoint PFSO– Undertake PFSA, draw PFSP for various security levelsUndertake PFSA, draw PFSP for various security levels

Requirements for GovernmentsRequirements for Governments

Ensure Ports complyEnsure Ports comply

-undertake review of measures in place-undertake review of measures in place

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Port Security - Legal FrameworkPort Security - Legal Framework

• The effective implementation of the ISPS code depends as The effective implementation of the ISPS code depends as much on the operational tasks as in the legal framework much on the operational tasks as in the legal framework laid down. As a minimum the following should be in law;laid down. As a minimum the following should be in law;

– an obligation on the Port to take all measures necessary an obligation on the Port to take all measures necessary to prevent unlawful acts against vessels, persons and to prevent unlawful acts against vessels, persons and property within the area of the ports jurisdiction;property within the area of the ports jurisdiction;

– powers of the port to take appropriate measures to powers of the port to take appropriate measures to discharge its obligations and the provision of discharge its obligations and the provision of appropriate personnel for the prevention and detection appropriate personnel for the prevention and detection of various forms of unlawful activity in the port area;of various forms of unlawful activity in the port area;

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Port Security Legal Port Security Legal FrameworkFramework

•   -Does the Port have to establish its own special -Does the Port have to establish its own special police force with full law enforcement powers or, police force with full law enforcement powers or, alternatively, the obligation to cooperate with and alternatively, the obligation to cooperate with and facilitate the performance of security functions by the facilitate the performance of security functions by the national security agencies and other law enforcement national security agencies and other law enforcement officers, with clear provisions on the rights and officers, with clear provisions on the rights and obligations of the port vis a vis such agencies;obligations of the port vis a vis such agencies;

•   -Does the Port have power to establish regulations -Does the Port have power to establish regulations and procedures for port security and arrangements and procedures for port security and arrangements for ensuring the effective implementation of these for ensuring the effective implementation of these procedures including the establishment of safety and procedures including the establishment of safety and security drills and other procedures required by law security drills and other procedures required by law or recommended in relevant international regulations or recommended in relevant international regulations and guidelines;and guidelines;

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Port Security Legal Port Security Legal FrameworkFramework

•   - does the port have powers to arrest and detain - does the port have powers to arrest and detain vessels and persons attempting to commit offences vessels and persons attempting to commit offences as defined by national law or applicable international as defined by national law or applicable international agreements, and to submit such persons to the agreements, and to submit such persons to the jurisdiction of the relevant law of enforcement of jurisdiction of the relevant law of enforcement of judicial authorities?judicial authorities?

•   -where the port State is a party to SUA Convention -where the port State is a party to SUA Convention the law should grant the necessary jurisdiction to the the law should grant the necessary jurisdiction to the courts to deal with persons who commit unlawful courts to deal with persons who commit unlawful acts, even if such acts were committed outside the acts, even if such acts were committed outside the territorial jurisdiction of the courts, such jurisdiction territorial jurisdiction of the courts, such jurisdiction will apply only if the State has jurisdiction under the will apply only if the State has jurisdiction under the terms of the convention;terms of the convention;04/19/23 11

Port Security – Legal Port Security – Legal FrameworkFramework

-are there penalties for failing to comply with any -are there penalties for failing to comply with any regulations made by the port or other persons duly regulations made by the port or other persons duly authorized by law to make such regulations? finallyauthorized by law to make such regulations? finally

- what about liabilities of the port for damage or loss - what about liabilities of the port for damage or loss or resulting from such acts done or directions given or resulting from such acts done or directions given which turn out to be unreasonable or improper, which turn out to be unreasonable or improper, including any exemptions or exclusions from liability, including any exemptions or exclusions from liability, as may be deemed appropriate?as may be deemed appropriate?

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Matters not covered by the CodeMatters not covered by the Code

The ISPS Code is not a panacea - does not deal with all The ISPS Code is not a panacea - does not deal with all

aspects of ship’s and port security:aspects of ship’s and port security:• security of ships and facilities not covered under the Code; andsecurity of ships and facilities not covered under the Code; and• the security of the cargo/ supply chain.the security of the cargo/ supply chain.

  

Whilst it is the duty of the Government to provide for these Whilst it is the duty of the Government to provide for these

matters port authorities must take a proactive role in this matters port authorities must take a proactive role in this

regard because of the potential for contamination and regard because of the potential for contamination and

compromise to their own security arrangements under the compromise to their own security arrangements under the

ISPS Code.ISPS Code.•   

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CONTAINER SECURITYCONTAINER SECURITY

• To ensure complete maritime security, port authorities must To ensure complete maritime security, port authorities must address themselves to the weak links of the container address themselves to the weak links of the container transport chain. The security of a laden container is only as transport chain. The security of a laden container is only as good as the procedures in place at locations it passes good as the procedures in place at locations it passes through. through.

• As “gatekeeper” to the freight transport market via their As “gatekeeper” to the freight transport market via their regulatory and licensing oversight, they should therefore regulatory and licensing oversight, they should therefore introduce security criteria in the licensing process of introduce security criteria in the licensing process of

vehicles, operators, personnel and facilities and monitor vehicles, operators, personnel and facilities and monitor whether licensees continue to meet these security whether licensees continue to meet these security requirements. requirements.

• • Communicate to Customs information regarding Communicate to Customs information regarding operators under their jurisdiction that might be useful in the operators under their jurisdiction that might be useful in the container screening process. container screening process.

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CONTAINER SECURITYCONTAINER SECURITY

• Screen employees according to security criteria; also check Screen employees according to security criteria; also check worker identification with other operators in accordance worker identification with other operators in accordance with national laws and develop protocols regarding access with national laws and develop protocols regarding access to containers by high security-risk workers. to containers by high security-risk workers.

• Confirm that operators given licences and permits are bona Confirm that operators given licences and permits are bona fide operators without criminal records pertinent to fide operators without criminal records pertinent to vehicle/freight crime. vehicle/freight crime.

• Maintain information on persistent offenders and withdraw Maintain information on persistent offenders and withdraw licences or refuse to grant permits to them licences or refuse to grant permits to them

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CONTAINER SECURITYCONTAINER SECURITY

• - Provide information and advice to operators on theft - Provide information and advice to operators on theft avoidance, safe practices, recommended routes, protected avoidance, safe practices, recommended routes, protected parking areas and appropriate precautions. parking areas and appropriate precautions.

• - Encourage the setting up of secure and safe parking areas - Encourage the setting up of secure and safe parking areas and freight traffic centres for trucks and loads (containers, and freight traffic centres for trucks and loads (containers, trailers etc). trailers etc).

• Standards of protection for such areas must be defined to Standards of protection for such areas must be defined to commonly agreed levels or criteria. commonly agreed levels or criteria.

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CONTAINER SECURITYCONTAINER SECURITY

• Addressing the security of the container transport chain requires a Addressing the security of the container transport chain requires a comprehensive inter-modal framework integrating measures across the comprehensive inter-modal framework integrating measures across the entire container transport chain. entire container transport chain.

• The WCO ( “cradle-to-grave” container stuffing and seal The WCO ( “cradle-to-grave” container stuffing and seal

management guidelines) – signatory to WCO container initiatives;management guidelines) – signatory to WCO container initiatives;

--"Framework of Standards to Secure and Facilitate Global "Framework of Standards to Secure and Facilitate Global Trade"Trade"

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IMO/ILO CODE OF PRACTICE ON IMO/ILO CODE OF PRACTICE ON PORT SECURITYPORT SECURITY

• The 2002 security conference also invited IMO and the ILO to establish a The 2002 security conference also invited IMO and the ILO to establish a joint joint Working GroupWorking Group to undertake more detailed work on comprehensive to undertake more detailed work on comprehensive port security requirements. port security requirements.

Code of Practice on Security in PortsCode of Practice on Security in Ports::– extends the consideration extends the consideration of port security beyond the area of the port of port security beyond the area of the port

facility into the whole port; andfacility into the whole port; and

– applies security guidelines to all areas and functions of the 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 those working in, having business with and requiring access to the port or transiting through the port; i.e. port workers and other port or transiting through the port; i.e. port workers and other port personnel, seafarers, passengers and passengers’ baggage, cargo, personnel, seafarers, passengers and passengers’ baggage, cargo, material and stores, vehicles and equipment originating from within material and stores, vehicles and equipment originating from within and outside the port area.and outside the port area.

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Complementary LegislationComplementary Legislation

• The Convention for the Suppression of The Convention for the Suppression of unlawful Acts against the Safety of unlawful Acts against the Safety of Maritime Navigation (SUA) 1988. Maritime Navigation (SUA) 1988. It was It was intended to improve measures for dealing intended to improve measures for dealing with incidents such as terrorists’ attacks on with incidents such as terrorists’ attacks on commercial shipping. It entered into force in commercial shipping. It entered into force in March 1992.March 1992.

Commercial and Insurance Commercial and Insurance ImplicationsImplications

Non-complianceNon-compliance• Port operators who are non-compliant may face claims from ship operators Port 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 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 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. for failures on the part of a variety of persons.

• Section 14.1 of Part A of the ISPS Code provides that Section 14.1 of Part A of the ISPS Code provides that “Security “Security measures and procedures shall be applied at the port measures and procedures shall be applied at the port facility in such a manner as to cause a minimum of facility in such a manner as to cause a minimum of interference with, or delay to, passengers, ship, ship’s interference with, or delay to, passengers, ship, ship’s personnel and visitors, goods and services.”personnel and visitors, goods and services.”

• A delicate balanceA delicate balance04/19/23 20

Contracts of Carriage & ISPS Contracts of Carriage & ISPS CodeCode

• Maritime contracts for the carriage of goods by sea Maritime contracts for the carriage of goods by sea accurately document the rights and duties of each party - accurately document the rights and duties of each party - including clearly defining owners and chatterers duties including clearly defining owners and chatterers duties under the ISPS Code as well as the fair apportionment of under the ISPS Code as well as the fair apportionment of costs.costs.

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Contracts of Carriage & ISPS Contracts of Carriage & ISPS CodeCode

• ISPS clause – “ISPS clause – “all delays, costs and expenses all delays, costs and expenses which result from the which result from the ship not being ISPS compliant will be for the owners’ account, whereas ship not being ISPS compliant will be for the owners’ account, whereas delays, costs and expenses which result from the port facility not being delays, costs and expenses which result from the port facility not being ISPS compliant will be for the chatterers’ account, unless caused by the ISPS compliant will be for the chatterers’ account, unless caused by the owners’ negligence” owners’ negligence”

•

• All foreseeable costs are covered by the clause: All foreseeable costs are covered by the clause: delays, costs & delays, costs & expenses imposed by a Port Authority under the Code are for the expenses imposed by a Port Authority under the Code are for the Chatterers’ account.Chatterers’ account. The costs of preparing and complying with The costs of preparing and complying with the Ship Security Plan are for owners’ account.the Ship Security Plan are for owners’ account. The question that The question that arises is arises is who pays for non-compliant ports?who pays for non-compliant ports?

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InsuranceInsurance

• Marine insurance: breach of an express warranty, such as a failure to Marine insurance: breach of an express warranty, such as a failure to comply with national or international regulations for example, could be 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 a reason for an insurer to reject a claim that has resulted directly from a failure to comply with the ISPS Codefailure to comply with the ISPS Code

• ““unsafe ports”unsafe ports” clause may impact on the ships clause may impact on the ships’’ calling calling at the next port after visiting a port facility that is not at the next port after visiting a port facility that is not compliant. compliant.

• The declaration that a ship is unsafe for having come The declaration that a ship is unsafe for having come from an un-compliant port may lead to the no-compliant from an un-compliant port may lead to the no-compliant ship losing its insurance cover and exposure to third ship losing its insurance cover and exposure to third party claims.party claims.

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InsuranceInsurance

• Failure for a port to be compliant may constitute prima Failure for a port to be compliant may constitute prima facie proof of negligence and a chatterer may have the facie proof of negligence and a chatterer may have the recourse to sue the port for negligence. recourse to sue the port for negligence.

• The presence of stowaways on a ship could also be proof of The presence of stowaways on a ship could also be proof of something seriously wrong with security in the port of something seriously wrong with security in the port of origin and thus conclusive proof of negligence.origin and thus conclusive proof of negligence.

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ConclusionConclusion• Port authorities must acknowledge and observe Port authorities must acknowledge and observe

international maritime transport conventions. international maritime transport conventions.

Port authorities ensure that to the best of their abilities that Port authorities ensure that to the best of their abilities that real compliance with the ISPS code, rather than superficial real compliance with the ISPS code, rather than superficial “paper” compliance, is achieved. “paper” compliance, is achieved.

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ConclusionConclusion

Ensure that many of the basic provisions of the ISPS Ensure that many of the basic provisions of the ISPS extend to those vessels and ports not covered by the ISPSextend to those vessels and ports not covered by the ISPS

• They must lobby Governments to ensure that the law keeps They must lobby Governments to ensure that the law keeps up to date with the international requirements that have a up to date with the international requirements that have a bearing on port and cargo operations.bearing on port and cargo operations.

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ANYANY QUESTIONSQUESTIONS