Sailing conditions for unrectified PSC deficiencies and the repair yard notification (EU Directive 2009/16 Article 21)

Say a ship inspected in an EU port is found to have a structural deficiency. It cannot be fixed in that port. May the ship leave, and if it does, what happens to the deficiency?

Directive 2009/16 splits this across Article 19 and Article 21. The answer lies in separating the ship leaving from the deficiency being closed. The ship leaves and the deficiency travels with it. This article follows the path the deficiency takes.

A deficiency is closed by having been fixed, or by being about to be fixed

The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection are, or will be, rectified in accordance with the Conventions.

The authority has to be satisfied in two tenses. Already fixed (are), or going to be fixed (will be). The second one is open, so a ship can leave the port carrying the deficiency.

The second tense has a price. When and where the fix will happen has to be settled before the ship leaves. Article 21 is the provision that settles it.

The deficiencies Article 21 deals with are not just any deficiencies. They are the deficiencies of Article 19(2), the ones clearly hazardous to safety, health or the environment that grounded the detention.

The next destination is not the next port of call but the nearest repair yard

Where deficiencies referred to in Article 19(2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed without undue delay to the appropriate repair yard nearest to the port of detention, as chosen by the master and the authorities concerned, where follow-up action can be taken, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with.

Three things are settled inside that one sentence.

What has to be settled	Who settles it
Which repair yard the ship goes to	The master and the authorities concerned choose it together
On what conditions it goes	The flag State authority determines them and the inspecting Member State agrees
The test the conditions must meet	The provision sets it

The destination is not the next port on the cargo schedule. It is the appropriate repair yard nearest to the port of detention, and follow-up action has to be possible there.

The conditions are determined by the competent authority of the flag State, and the inspecting Member State has to agree to them. Where the two States do not arrive at the same conditions, the ship does not move. The test those conditions must meet is written into the provision.

Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

This is not a test about one ship’s own safety. It has to clear three things at once: passengers and crew, other ships, and the marine environment.

Something else may have to be measured in the port of detention before sailing

Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A. 744(18), either with respect to a ship’s documentation or with respect to a ship’s structural failures and deficiencies, the competent authority may require that the necessary thickness measurements be carried out in the port of detention before the ship is allowed to sail.

This is where the decision to send the ship to a yard comes out of non-compliance with A. 744(18). Documentation that is not in order and structural failures of the hull are treated alike. The necessary thickness measurements may be required in the port of detention first.

The verb is may require. Whether to require them is for the authority in that port. What divides here is sequence. The repairs happen at the yard, but the measurements may have to be finished in the port of detention.

The conditions reach the next authority on paper, not on the ship

In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article 19(6) and any other authority as appropriate of all the conditions for the voyage.

It is shall notify. Not a discretion. What is notified is all the conditions for the voyage, and the provision names three recipients.

• The competent authority of the State where the repair yard is
• The parties listed in Article 19(6)
• Any other authority as appropriate

Article 19(6) is what lists those parties. On a detention the authority immediately informs the flag State administration in writing, with the report of inspection attached. Where the flag State cannot be reached it is the Consul, and in his absence the nearest diplomatic representative. Nominated surveyors or recognised organisations that issued the statutory or classification certificates are notified as well where relevant.

The notification does not run one way only.

The competent authority of a Member State receiving such notification shall inform the notifying authority of the action taken.

The receiving authority tells the notifying authority what it did. Two ports end up holding the same case from either end. When the ship’s schedule changes, the number of authorities that know is not one but two.

The port of departure hears back whether the ship arrived

In the circumstances referred to in paragraph 4, first subparagraph, point (b), the competent authority of the Member State in which the repair yard lies shall inform the authority of the Member State where the ship was found to be defective whether the ship has arrived.

Arrival travels back to the port of departure. Where the authority of the Member State in which the ship was found to be defective becomes aware that the ship did not call at that yard, it immediately alerts the authorities of all the other Member States. The same holds where the yard lies outside the EU. Sailing without complying with the conditions runs the same path.

Article 21(4) is where it ends. A ship that proceeds to sea without complying with the conditions, and a ship that fails to call at the yard it was sent to, are refused access to any port or anchorage within the Union. What makes this structure work is that the place the ship is stopped is not that one port but every port it next tries to enter. Before refusing access, though, a Member State may request consultations with the flag State administration of the ship.

Even with the door shut, there is still a way in to have the deficiency fixed

By way of derogation from paragraph 4, access by a ship as referred to in that paragraph to a specific port or anchorage may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, to reduce or minimise the risk of pollution or to have deficiencies rectified in accordance with paragraph 1, provided that the owner, operator or master of the ship has implemented adequate measures to ensure the safe entry of the ship concerned to that port or anchorage to the satisfaction of the competent authority of that Member State.

There are four grounds on which the exception opens. Force majeure, overriding safety considerations, reducing or minimising the risk of pollution, and having deficiencies rectified in accordance with paragraph 1.

The fourth one comes back to where this article started. A ship under a refusal of access may still enter if it is going in to have the deficiency fixed. The owner, operator or master has to have already implemented adequate measures for a safe entry, and the authority of that Member State has to be satisfied with them. The side that opens the door is the authority in that port, and the side that brings the key is the ship.

Worth confirming

The passages above come from Article 19 and Article 21 of EU Directive 2009/16. What the provisions fix is the skeleton of the procedure. The actual content of the sailing conditions is determined by the competent authority of the flag State, so it varies from flag to flag. How far a yard still counts as the nearest appropriate one, whether thickness measurements are required, and which items are attached as conditions are settled by the authority in that port together with the flag State. Paris MOU guidelines and successive amendments to the Directive fill in the detail, so the actual judgement starts from the version that port applies.