Grounds for detention and the rungs of the access refusal ladder (EU Directive 2009/16)

Being held alongside in an EU port and being kept out of EU ports altogether are different events. They are joined by a ladder. Directive 2009/16 sets the threshold for detention, sets how many detentions carry a ship over into refusal of access, and lengthens the wait each time a refusal repeats. This article climbs the ladder from the bottom.

The first rung is detention, and the threshold splits in two

Deficiencies clearly hazardous to safety, health or the environment mean the ship is detained or the operation in the course of which they were revealed is stopped. The order lifts when the hazard is removed, or when the authority establishes that the ship can proceed, subject to any necessary conditions, without risk.

Living and working conditions have a paragraph of their own.

In the case of living and working conditions on board which are clearly hazardous to the safety, health or security of seafarers or deficiencies which constitute a serious or repeated breach of MLC 2006 requirements (including seafarers’ rights), the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped.

One further route to lifting opens here. Either the deficiencies are rectified, or the competent authority accepts a plan of action to rectify them and is satisfied it will be implemented in an expeditious manner. Before accepting such a plan, the inspector may consult the flag State.

A non-functioning voyage data recorder is written in separately. Where its use is compulsory and this is found, the ship is detained. Where it cannot be readily rectified in the port of detention, the ship may be sent to the nearest appropriate repair yard or required to rectify within a maximum of 30 days.

The second rung is the detention count, and it differs by flag performance list

The trigger for refusal of access is the detention count, and the length of the counting window depends on which list the flag State sits on.

Performance list of the flag State	Counting window	Trigger
Low performance list	Preceding 36 months	More than two detentions inside it
High or medium performance list	Preceding 24 months	More than two detentions inside it

The same third detention can land or not land depending on the flag State’s list. And the count reaches beyond EU ports: ports and anchorages of States signatory to the Paris MoU are inside it.

The moment it applies is written in too.

The refusal of access shall be applicable as soon as the ship leaves the port or anchorage where it has been the subject of a third detention and where a refusal of access order has been issued.

From the moment the ship leaves the port where that third detention happened. This is not a structure where the ship is told on arrival at the next port.

The third rung is the wait before it lifts

A refusal order lifts only with the passage of time, and that time grows with each order.

The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of that order and when the conditions listed in points 3 to 6 of Annex VIII are met.

Order	Time before it can lift	Further condition
First	Three months	Conditions in Annex VIII met
Second	12 months	Conditions in Annex VIII met
Third	24 months	All four below met

At the third order the conditions change. Time passing is no longer enough; four things are required together.

• The flag State’s detention rate appears on neither the low nor the medium performance list.
• The statutory and classification certificates are issued by an organisation recognised under EU law.
• The ship is managed by a company classified as high performance.
• The conditions in Annex VIII are met.

The door closes at the last rung

Any ship not meeting the criteria listed in the first subparagraph, after a period of 24 months has passed from the date of issue of the refusal of access order, shall be permanently refused access to any port or anchorage within the Union.

A ship under a third refusal that does not meet those four passes into permanent refusal once 24 months have run. And where a ship is detained again after a third refusal, a flag State on the medium or low performance list means permanent refusal on its own.

Ships flying the flag of a State on the high performance list have their own route. Refused access three or more times and then detained at the first inspection in the Union since that refusal, the outcome splits between a 24-month refusal and a permanent one, depending on whether the certificates were issued by an EU recognised organisation.

Leaving in breach of the conditions leads to the same place

Where a detained ship is sent to a repair yard, conditions determined by the flag State and agreed by that Member State attach to the voyage. Proceeding to sea without complying with them, or being permitted to sail on condition of calling at the indicated repair yard and failing to do so, means access to every port and anchorage in the Union is refused. That order applies from the date of issue and lifts only after 12 months have passed and the conditions in Annex VIII are met.

Worth confirming

The passages above come from Directive 2009/16. The performance lists are adopted under the Paris MoU and published annually, so which list a flag State sits on can change from year to year. How many detentions fall inside the preceding 24 or 36 month window, which bands the flag State and the company are classified in, and whether a repair yard condition is still outstanding are where the actual judgement starts.