Scope of the right of appeal against a PSC detention and the professional profile of inspectors (EU Directive 2009/16)

A master who has just received a detention notice calls the office. One of the deficiencies looks wrong to him. If he appeals, can the ship sail.

Article 20 of EU Directive 2009/16 answers in two sentences. The first grants the right of appeal. The second states that the appeal does not suspend anything. The sentence that grants the right and the sentence that takes its force away sit inside one paragraph.

That arrangement moves the weight of practice. This article follows the structure, and at the end it looks at what the directive places on the person making the decision.

The provision grants the right of appeal and removes suspensive effect in the same paragraph

The owner or operator of a ship or the owner or operator’s representative in the Member State shall have a right of appeal against any detention or refusal of access by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended.

Three people hold the right of appeal. The owner of the ship, the operator, and their representative in the Member State. What it runs against is detention and refusal of access.

The second sentence fixes the nature of the right. Appealing does not suspend the detention or the refusal of access. There are legal systems where a measure is held in abeyance while it is contested, and this provision closes that road.

So an appeal is not a way to get the ship out. The route out sits outside this provision.

Even an appeal that succeeds restores the record and nothing else

When, as a result of an appeal or of a request made by the owner or the operator of a ship or his representative, a detention order or a refusal of access order is revoked or amended:

Where the detention order or the refusal of access order is revoked or amended, on appeal or on a request by the owner, the operator or the representative, two things follow. One is amending the inspection database without delay. The other carries a deadline.

the Member State where the detention order or refusal of access order is issued shall, within 24 hours of such a decision, ensure that the information published in accordance with Article 26 is rectified.

The Member State that issued the order has 24 hours from the decision to rectify the information published under Article 26.

Looking at what is restored shows where the value of an appeal lies. The hours the ship spent held in port do not come back. What comes back is the entry in the database and the published information. An appeal is not a procedure for sailing sooner. It is a procedure for correcting a record.

Member States build the procedure and the notice goes to the master

Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.

The procedure is built by national legislation, not by the directive. Where to file, what to file and by when differ from State to State. What the directive makes uniform is not the procedure but the notice.

The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal and the practical arrangements relating thereto.

The person informed is the master. The right belongs to the owner, the operator and their representative, while the person told that the right exists and how it works is the master on board. The detention notice is served on the ship, so the arrangement is natural. It does add a step in practice. The notice the master receives has to reach the office for the procedure to be filed in time.

So the material to contest with is made before the inspection ends

The one sentence about suspensive effect sets the order. When the ship sails is decided apart from the appeal, and the outcome of the appeal reaches only the record. Sailing sooner and protecting the record become two different jobs.

The first job ends in port while the inspection is running, and the second is decided by what was left behind at that moment. What can be drawn on later in an appeal is the document made during the inspection. The wording on the report of inspection, the certificates and records shown to the inspector, and the reply given on the spot.

One thing separates them. An account written up after the detention is lifted is a document made then. Only what was left before the inspection ended is a record of that moment. Since the provision withholds suspensive effect, the material the later procedure works with is made earlier.

The provision puts qualification and an interest ban on the person deciding

Inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex XI and who are authorised to carry out port State control by the competent authority.

Two conditions narrow down who may inspect. Meeting the qualification criteria in Annex XI, and being authorised by the competent authority. One alone is not enough to inspect. Where the port State authority lacks the required expertise, the inspector may be assisted by a person who has it, and the assistant does not become an inspector but helps one.

The competent authority, the inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by, or undertake work on behalf of, non-governmental organisations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships.

no commercial interest runs against two places. The port of inspection and the ships inspected, and the ban covers the authority, the inspectors and the assistants alike. One further condition falls on inspectors only. They may not be employed by, or work on behalf of, non-governmental organisations issuing statutory and classification certificates or carrying out the surveys needed to issue them. An inspector also carries an identity card issued by the competent authority, on the common model laid down by Commission Directive 96/40/EC.

Member States shall ensure that the competence of inspectors and their compliance with the minimum criteria referred to in Annex XI are verified, before authorising them to carry out inspections and periodically thereafter in the light of the training scheme referred to in paragraph 7.

Qualification is not checked once and left. It is verified before an inspector is authorised, and periodically after that in the light of the training scheme. Member States also have to provide training on changes to the EU port State control system and on amendments to the Conventions. The Commission, with the Member States and the Paris MoU signatory States, develops a programme to support the training of inspectors.

This is where the section joins the earlier one. No suspensive effect means the judgement made on the spot runs on as it is, and the provision layers qualification, authorisation, an interest ban, an identity card and periodic verification onto that judgement.

Worth confirming

The passages above come from Articles 20 and 22 of EU Directive 2009/16. The time limit for an appeal, where it is filed and what has to be filed are set by national legislation. The qualification criteria for inspectors are in Annex XI, and the publication referred to in Article 20(4) is in Article 26. On what conditions a detention is lifted sits outside these two provisions, so it has to be checked separately. Where the authority at that port receives an appeal is where the actual judgement starts.