(Codecision procedure: second reading)

The European Parliament,

-   having regard to the Council common position (5722/3/2008 – C6-0224/2008)(1),

-   having regard to its position at first reading(2) on the Commission proposal to Parliament and the Council (COM(2005)0588),

-   having regard to the amended Commission proposal (COM(2008)0208),

-   having regard to Article 251(2) of the EC Treaty,

-   having regard to Rule 62 of its Rules of Procedure,

-   having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6-0335/2008),

1.  Approves the common position as amended;

2.  Instructs its President to forward its position to the Council and Commission.

(1) OJ C 184 E, 22.7.2008, p. 11. (2) OJ C 74 E, 20.3.2008, p. 584.

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee(1),

Having regard to the opinion of the Committee of the Regions(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1)  Council Directive 95/21/EC of 19 June 1995 on port State control of shipping(4) has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)  The Community is seriously concerned about shipping casualties and pollution of the seas and coastlines of Member States.

(3)  The Community is equally concerned about on-board living and working conditions.

(4)  Safety, pollution prevention and on-board living and working conditions may be effectively enhanced through a drastic reduction of substandard ships from Community waters, by strictly applying Conventions, international codes and resolutions.

(5)   To this end, Member States should endeavour to take the necessary steps to ratify the Maritime Labour Convention, 2006, of the International Labour Organisation, which contains provisions related to port State obligations in regulation 5.2.1.

(6)   Member States should take the necessary measures to adapt their national law to the provisions on limitation of liability of the recapitulative text of the 1976 International Maritime Organisation Convention on Limitation of Responsibility for Maritime Claims, as amended by the 1996 protocol (the 1996 Convention). Regarding the judgement of the Court of Justice of the European Communities in Case C-188/07(5), it appears that compensation to third parties in respect of damage caused by waste falls under the 'polluter pays' principle enunciated in Council Directive 75/442/EEC of 15 July 1975 on waste(6) and in Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage(7), opening up the right to be compensated for the totality of the damage caused, including where there is not complete coverage and beyond the national provisions on incorporation of conventions.

(7)  Responsibility for monitoring the compliance of ships with the international standards for safety, pollution prevention and on-board living and working conditions lies primarily with the flag State. Relying, as appropriate, on recognised organisations, the flag State fully guarantees the completeness and efficiency of the inspections and surveys undertaken to issue the relevant certificates. Responsibility for maintenance of the condition of the ship and its equipment after survey to comply with the requirements of Conventions applicable to the ship lies with the ship company. However, there has been a serious failure on the part of a number of flag States to implement and enforce international standards. Henceforth, as a second line of defence against substandard shipping, the monitoring of compliance with the international standards for safety, pollution prevention and on-board living and working conditions should also be ensured by the port State, while recognising that port State control inspection is not a survey and the relevant inspection forms are not seaworthiness certificates.

(8)  A harmonised approach to the effective enforcement of these international standards by Member States in respect of ships sailing in the waters under their jurisdiction and using their ports should avoid distortions of competition.

(9)  The shipping industry is vulnerable to acts of terrorism. Transport security measures should be effectively implemented and Member States should vigorously monitor compliance with security rules by carrying out security checks.

(10)  Advantage should be taken of the experience gained during the operation of the Paris Memorandum of Understanding on Port State Control (Paris MOU), signed in Paris on 26 January 1982.

(11)  The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002(8), should provide the necessary support to ensure the convergent and effective implementation of the port State control system. The EMSA should in particular contribute to the development and implementation of the inspection database set up in accordance with this Directive and to a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

(12)  An efficient port State control regime should seek to ensure that all ships calling at a port within the European Union are regularly inspected. Inspection should concentrate on substandard ships, while quality ships, meaning those which have satisfactory inspection records or which fly the flag of a State complying with the Voluntary International Maritime Organisation (IMO) Member State Audit Scheme, should be rewarded by undergoing less frequent inspections. Such new inspection arrangements should be incorporated into the Community port State control regime as soon as its various aspects have been defined and on the basis of an inspection-sharing scheme whereby each Member State contributes fairly to the achievement of the Community objective of a comprehensive inspection scheme. Moreover, Member States should recruit and retain the requisite number of staff, including qualified inspectors, taking into account the volume and characteristics of shipping traffic at each port.

(13)  The inspection regime set up by this Directive takes into account the work carried out by the Paris MOU. Since any developments arising from the Paris MOU should be agreed at Community level before being made applicable within the EU, close coordination should be established and maintained between the Community and the Paris MOU in order to facilitate as much convergence as possible. 

(14)  The Commission should manage and update the inspection database, in close collaboration with the Paris MOU. The inspection database should incorporate inspection data of the Member States and all States Parties to the Paris MOU. Until the Community maritime information system, SafeSeaNet, is fully operational and allows for an automatic record of the data concerning ships' calls in the inspection database, Member States should provide the Commission with the information needed to ensure ║proper monitoring of the application of this Directive, in particular concerning the movements of ships. On the basis of the inspection data provided by Member States, the Commission should retrieve from the inspection database data on the risk profile of ships, on ships due for inspections and on the movement of ships and should calculate the inspection commitments for each Member State. The inspection database should also be capable of interfacing with other Community maritime safety databases.

(15)  Member States should endeavour to review the method of drawing the white, grey and black list of flag States in the framework of the Paris MOU, in order to ensure its fairness, in particular with respect to the way it treats flag States with small fleets. 

(16)  The rules and procedures for port State control inspections, including criteria for the detention of ships, should be harmonised to ensure consistent effectiveness in all ports, which would also drastically reduce the selective use of certain ports of destination to avoid the net of proper control.

(17)  ▌ Periodic and additional inspections should include an examination of pre-identified areas for each ship which, will vary according to the type of ship, the type of inspection and the findings of previous port State control inspections. The inspection database should indicate the elements to identify the risk areas to be checked at each inspection.

(18)  Certain categories of ships present a major accident or pollution hazard when they reach a certain age and should therefore be subject to an expanded inspection. The details of such expanded inspections should be specified.

(19)  Under the inspection regime set up by this Directive, the intervals between periodic inspections on ships depend on their risk profile which is determined by certain generic and historical parameters. For high-risk ships this interval should not exceed six months.

▌

(20)  Some ships pose a manifest risk to maritime safety and the marine environment because of their poor condition, flag ▌and history. They should therefore be refused access to Community ports and anchorages, unless it can be demonstrated that they can be operated safely in Community waters. Guidelines should be established setting out the procedures applicable in the event of the imposition of such an access ban and of the lifting of the ban. In the interests of transparency, the list of ships refused access to Community ports and anchorages should be made public.

(21)  With a view to reducing the burden placed on certain administrations and companies by repetitive inspections, surveys under Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services(9), carried out on ro-ro ferries or high-speed passenger craft by a host State which is not the flag State of the vessel, and which include at least all the items of an expanded inspection, should be taken into account when calculating the risk profile of a ship, the intervals between inspections and the fulfilment of the inspection commitment of each Member State. In addition, the Commission should examine whether it is appropriate that Directive 1999/35/EC be amended in the future with a view to enhancing the level of safety required for the operation of ro-ro ferries and high-speed passenger craft to and from ports of Member States.

(22)  Non-compliance with the provisions of the relevant Conventions should be rectified. Ships which need to be the subject of corrective action should, where the observed deficiencies are clearly hazardous to safety, health or the environment, be detained until the shortcomings are rectified.

(23)  A right of appeal against detention orders by the competent authorities must be made available, in order to prevent unreasonable decisions which may cause undue detention and delay.

(24)  Authorities and inspectors involved in port State control activities should have no conflict of interests with the port of inspection or with the ships inspected, or of related interests. Inspectors should be adequately qualified and receive appropriate training to maintain and improve their competence in the conduct of inspections. Member States should cooperate in developing and promoting a harmonised Community scheme for the training and assessment of competences of inspectors.

(25)  Pilots and port authorities or bodies should be enabled to provide useful information on apparent anomalies found on board ships.

(26)  Complaints from persons with a legitimate interest regarding on-board living and working conditions should be investigated. Any person lodging a complaint should be informed of the follow-up action given to that complaint.

(27)  Cooperation between the competent authorities of Member States and other authorities or organisations is necessary in order to ensure an effective follow-up with regard to ships with deficiencies, which have been permitted to proceed, and for the exchange of information about ships in port.

(28)  Since the inspection database is an essential part of port State control, Member States should ensure that it is updated in the light of Community requirements.

(29)  Publication of information concerning ships and their operators or companies which do not comply with international standards on safety, health and protection of the marine environment may be an effective deterrent discouraging shippers from using such ships and an incentive to their owners to take corrective action. With regard to the information to be made available, the Commission should establish ║close collaboration with the Paris MOU and take account of any information published in order to avoid unnecessary duplication. Member States should have to provide the relevant information only once.

(30)  All costs of inspecting, which warrant detention of ships, and those incurred in lifting a refusal of access, should be borne by the owner or the operator.

(31)  The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(10).

(32)  In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to Conventions, international codes and resolutions related thereto and to establish the rules of implementation for the provisions of Articles 7 and 9. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing it with new-non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(33)  Since the objectives of this Directive, namely to reduce substandard shipping in waters under Member States' jurisdiction through improvement of the Community's inspection system for seagoing ships and the development of the means of taking preventive action in the field of pollution of the seas, cannot be sufficiently achieved by Member States and may, therefore, on account of their scale and effects, be better achieved at Community level, the Community may take measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(34)  The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 95/21/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(35)  This Directive should be without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

(36)  In accordance with point 34 of the Interinstitutional Agreement on better law-making(11), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(37)  In order not to impose a disproportionate administrative burden on landlocked Member States, a de minimis rule should allow such Member States to derogate from the provisions of this Directive, which means that such Member States, as long as they meet certain criteria, are not obliged to transpose this Directive.

(38)  In order to take into account the fact that the French overseas departments belong to a different geographical area, are to a large extent Parties to regional port State control memoranda other than the Paris MOU and have very limited traffic flows with mainland Europe, the Member State concerned should be allowed to exclude those ports from the port State control system applied within the Community,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

Article 2

Definitions

Article 3

Scope

1.  This Directive shall apply to any ship and its crew calling at a port or at an anchorage of a Member State to engage in a ship/port interface.

▌

France may decide that the ports covered by this paragraph do not include ports situated in the overseas departments referred to in Article 299(2) of the Treaty.

Where a Member State carries out an inspection on a ship in its territorial waters but outside a port, such a procedure shall be deemed to be an inspection for the purposes of this Directive.

Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant international Conventions.

Member States without sea ports may derogate from the application of this Directive, under certain conditions. The Commission shall adopt, in accordance with the regulatory procedure with scrutiny referred to in Article 31(3), the measures for the implementation of this derogation mechanism.

▌

2.  Where the gross tonnage of a ship is less than 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In applying this paragraph, Member States shall be guided by Annex 1 to the Paris MOU.

3.  When inspecting a ship flying the flag of a State which is not a party to one of the Conventions, Member States shall ensure that the treatment of that ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention.

4.  Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.

Article 4

Inspection powers

1.  Member States shall take all necessary measures, in order to be legally in a position to carry out the inspections referred to in this Directive on board foreign ships, in accordance with international law.

2.  Member States shall maintain appropriate competent authorities, to which the requisite number of staff, in particular qualified inspectors, for the inspection of ships is assigned, including through recruitment, and shall take appropriate measures to ensure that inspectors perform their duties as laid down in this Directive and in particular that they are available for carrying out the inspections required in accordance with this Directive.

Article 5

Member States shall take the necessary measures to adapt their national law to the provisions on limitation of liability under the 1996 Convention.

The principle of compensation to third parties in respect of damage caused by waste falling under the 'polluter pays' principle enunciated in Directive 75/442/EEC and in Directive 2004/35/EC opens up the right to be compensated for the totality of the damage caused, including where there is not complete coverage and beyond the national provisions on incorporation of conventions.

Member States may maintain or introduce provisions that are stricter than those of this Article.

Article 6

Inspection regime and annual inspection commitment

1.  Member States shall carry out inspections in accordance with the selection scheme described in Article 12 and the provisions in Annex I.

2.  In order to comply with its annual inspection commitment, each Member State shall

3.  With a view to calculating the share of the total number of inspections to be carried out annually within the Community and the Paris MOU region referred to in point (b) of paragraph 2, ships at anchor shall not be counted unless otherwise specified by the Member State concerned.

Article 7

▌ Compliance with the Community inspection regime

Article 8

Circumstances in which certain ships are not inspected

1.  In the following circumstances, a Member State may decide to postpone the inspection of a Priority I ship:

If an inspection is postponed, but not performed in accordance with points (i) and (ii) and not recorded in the inspection database, it shall be counted as a missed inspection against the Member State which postponed the inspection.

2.  Under the following exceptional circumstances, an inspection ▌ not performed on Priority I ships for operational reasons shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection database, and if in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment.

▌

3.  If an inspection is not performed on a ship at anchor, it shall not be counted as a missed inspection provided that, if point (ii) applies, the reason for missing the inspection is recorded in the inspection database, and if:

4.  The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3).

Article 9

Notification of arrival of ships

1.  The operator, agent or master of a ship which, in accordance with Article 14, is eligible for an expanded inspection and bound for a port of call or anchorage of a Member State shall notify its arrival at the first port of call or anchorage in the Community in accordance with the provisions of Annex III.

2.  On receipt of the notification referred to in paragraph 1 of this Article and in Article 4 of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system(13), the port authority concerned shall transmit such information to the competent authority and to those of the ports of call or anchorages successively reached in the Community.

3.  Electronic means shall be used for the purposes of any communication provided for in this Article. Other means shall be used only when electronic means are not available.

4.  The procedures and formats developed by the Member States for the implementation of Annex III shall comply with ▌ Directive 2002/59/EC ▌. 

Article 10

Ship risk profile

1.  All ships calling at a port or anchorage of a Member State shall, in the inspection database be attributed a ship risk profile which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections.

2.  The risk profile of a ship shall be determined by a combination of generic and historical risk parameters as follows:

3.  The Commission shall adopt, in accordance with the regulatory procedure with scrutiny laid down in Article 31(3), the rules for the implementation of this Article, specifying in particular:

Article 11

Frequency of inspections

Article 12

Selection of ships for inspection

The competent authority shall ensure that ships are selected for inspection on the basis of their risk profile as described in Annex I part I and when overriding or unexpected factors arise in accordance with Annex I part II 2A and 2B.

Article 13

Initial and more detailed inspections

Member States shall ensure that ships which are selected for inspection in accordance with Article 12 are subject to an initial inspection or a more detailed inspection as follows:

1.  On each initial inspection of a ship, the competent authority shall ensure that the inspector, as a minimum:

2.  When, after an inspection referred to in paragraph 1, deficiencies to be rectified at the next port of call have been recorded in the inspection database, the competent authority of that next port may decide not to carry out the verifications referred to in paragraph 1(a) and (c).

3.  A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in paragraph 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of one of the Conventions.

"Clear grounds" shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew.

Examples of "clear grounds" are set out in Annex V.

Article 14

Expanded inspections

1.  The following categories of ships are eligible for an expanded inspection in accordance with Annex I part II 3A and 3B:

2.  The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the expanded inspection to be carried out.

Without prejudice to control measures required for security purposes the ship shall remain in the port until the inspection is completed.

3.  On receipt of a pre-notification provided by a ship eligible for a periodic expanded inspection, the competent authority shall inform the ship if no expanded inspection will be carried out.

4.  The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall, in accordance with the procedures referred to in Article 31(2), adopt measures for the implementation of Annex VII.

Article 15

Safety and security guidelines and procedures

1.  Member States shall ensure that their inspectors follow the procedures and guidelines specified in Annex VI.

2.  As far as security checks are concerned, Member States shall apply the relevant procedures set out in Annex VI of this Directive to all ships referred to in Articles 3(1), 3(2) and 3(3) of Regulation (EC) No 725/2004, calling at their ports, unless they fly the flag of the port State of inspection.

3.  The provisions of Article 14 of this Directive concerning expanded inspections shall apply to ro-ro ferries and high-speed passenger craft, referred to in Article 2(a) and (b) of Directive 1999/35/EC.

When a ship has been surveyed in accordance with Articles 6 and 8 of Directive 1999/35/EC by a host State which is not the flag State of the ship, that specific survey shall be recorded as a more detailed or as an expanded inspection, as relevant, in the inspection database and taken into account for the purposes of Articles 10, 11 and 12 of this Directive and for calculating the fulfilment of the inspection commitment of each Member State in as much as all the items referred to in Annex VII are covered.

Without prejudice to a prevention of operation of a ro-ro ferry or a high-speed passenger craft decided in accordance with Article 10 of Directive 1999/35/EC, the provisions of this Directive concerning rectification of deficiencies, detention and refusal of access, follow-up to inspections, detentions and refusal of access, as appropriate, shall apply.

4.  If necessary, the Commission may, in accordance with the procedure referred to in Article 31(2), adopt the rules necessary to ensure harmonised implementation of paragraph 1 and 2 of this Article.

Article 16

Access refusal measures concerning certain ships

1.  A Member State shall ensure that any ship meeting the criteria specified in this paragraph is refused access to its ports and anchorages, except in the situations described in Article 21(6) if the ship:

For the purposes of this paragraph, the lists defined by the Paris MOU shall enter into force as from 1 July each year.

The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of the order and when the conditions referred to in paragraphs 4 to 10 of Annex VIII are met.

If the ship is subject to a second refusal of access, the period shall be increased to 12 months. Any subsequent detention in a Community port shall result in the ship being permanently refused access to any port or anchorage within the Community.

▌

2.  For the purpose of this Article, Member States shall comply with the procedures laid down in Annex VIII.

Article 17

Report of inspection to the master

On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex IX. The ship's master shall be provided with a copy of the inspection report.

Article 18

Complaints

All complaints shall be subject to a rapid initial assessment by the competent authority. This assessment shall make it possible to determine whether a complaint is justified, concrete and manifestly grounded.

Should that be the case, the competent authority shall take the necessary action on the complaint. It shall, in particular, ensure that the ship's master and owner, as well as anyone else directly concerned by the complaint, including the complainant, can make their views known.

Where the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons therefor.

The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall ensure confidentiality during any interviews of crew members.

Member States shall inform the flag State administration, with a copy to the International Labour Organisation (ILO) if appropriate, of complaints which are not manifestly unfounded and of follow-up actions taken.

Article 19

Rectification and detention

1.  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.

2.  In the case of deficiencies which are clearly hazardous to safety, health or the environment, 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. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed 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.

3.  When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X.

4.  If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, when use of such a recorder is compulsory in accordance with Directive 2002/59/EC, the competent authority shall ensure that the ship is detained.

If that deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the appropriate repair yard nearest to the port of detention where it may be readily rectified or require the deficiency to be rectified within a maximum period of 30 days, as provided for in the guidelines developed by the Paris MOU. For these purposes, the procedures laid down in Article 21 shall apply.

5.  In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the parties responsible║ take the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

6.  In the event of detention, the competent authority shall immediately inform, in writing and including the inspection report║, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of classification certificates or statutory certificates in accordance with the Conventions shall also be notified where relevant.

7.  This Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

8.  When port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.

9.  In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention.

The competent authority shall inform the port authorities or bodies at its earliest convenience when a detention order is issued.

Port authorities or bodies shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships.

Article 20

Right of appeal

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

2.  Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation and shall cooperate in particular in order to ensure that appeals are dealt with in a reasonable time.

3.  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.

4.  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:

Article 21

Follow-up to inspections and detentions

1.  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 directly to the appropriate repair yard nearest to the port of detention where follow-up action can be taken, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. 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.

2.  Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A. 744(18), on Guidelines on the Enhanced Programme of Inspections during Surveys of Bulk Carriers and Oil Tankers, 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 ensured in the port of detention before the ship is allowed to sail.

3.  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.

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

4.  Member States shall take measures to ensure that access to any port or anchorage within the Community is refused to ships referred to in paragraph 1 which proceed to sea:

Such refusal shall be maintained until the owner or operator provides evidence to the satisfaction of the competent authority of the Member State where the ship was found defective, demonstrating that the ship fully complies with all applicable requirements of the Conventions.

5.  In the circumstances referred to in paragraph 4(a), the competent authority of the Member State where the ship was found to be defective shall immediately alert the competent authorities of all the other Member States.

In the circumstances referred to in paragraph 4(b), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States.

Before denying entry, the Member State may request consultations with the flag administration of the ship concerned.

6.  By way of derogation from the provisions of paragraph 4, access 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, or to reduce or minimise the risk of pollution or to have deficiencies rectified, provided that adequate measures to the satisfaction of the competent authority of such Member State have been implemented by the owner, the operator or the master of the ship to ensure safe entry.

Article 22

Professional profile of inspectors

1.  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.

2.  When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise.

3.  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.

4.  Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with Commission Directive 96/40/EC of 25 June 1996 establishing a common model for an identity card for inspectors carrying out port State control(14).

5.  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.

6.  Member States shall ensure that inspectors receive appropriate training in relation to changes to the port State control regime applied in the Community as laid down in this Directive and amendments to the Conventions.

7.  In cooperation with Member States, the Commission shall develop and promote a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

Article 23

Reports from pilots and port authorities

1.  Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

2.  If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State concerned.

3.  Member States shall require pilots and port authorities or bodies to report at least the following information, in electronic format whenever possible:

4.  Member States shall ensure that proper follow-up action is taken on apparent anomalies notified by pilots and port authorities or bodies and shall record the details of action taken.

5.  The Commission may, in accordance with the regulatory procedure referred to in Article 31(2), adopt measures for the implementation of this Article, including a harmonised electronic format and procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up action taken by Member States.

Article 24

Inspection database

1.  The Commission shall develop, maintain and update the inspection database, building upon the expertise and experience of the Paris MOU.

The inspection database shall contain all the information required for the implementation of the inspection system set up under this Directive and shall include the functionalities set out in Annex XII.

2.  Member States shall take the appropriate measures to ensure that the information on the actual time of arrival and the actual time of departure of any ship calling at its ports is transferred to the inspection database through the national maritime information management systems referred to in Article 25(4) of Directive 2002/59/EC within one hour of the ship's arrival and within three hours of its departure respectively.

3.  Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted.

Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes.

4.  On the basis of the inspection data provided by Member States, the Commission shall be able to retrieve from the inspection database any relevant data concerning the implementation of this Directive, in particular on the risk profile of the ship, on ships' due for inspections, on ships' movement data and on the inspection commitments of each Member State.

Member States shall have access to all the information recorded in the inspection database which is relevant for implementing the inspection procedures of this Directive.

Member States and third States Parties to the Paris MOU shall be granted access to any data they have recorded in the inspection database and to data on ships flying their flag.

Article 25

Exchange of information and cooperation

Article 26

Publication of information

The Commission shall make available and maintain on a public website the information on inspections, detentions and refusals of access in accordance with Annex XIII, building upon the expertise and experience under the Paris MOU.

Article 27

Publication of a list of companies with a low and very low performance

The Commission shall establish and publish regularly on a public website information relating to companies whose performance, in view of determining the ship-risk profile referred to in Annex I part I, has been considered as low and very low for a period of three months or more.

The Commission shall adopt, in accordance with the regulatory procedure referred to in Article 31(2), the rules for the implementation of this Article, ensuring that they take account of companies' fleet size and specifying in particular the modalities of the publication.

Article 28

Reimbursement of costs

1.  Should the inspections referred to in Articles 13 and 14 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State.

2.  All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Articles 16 and 21(4) shall be charged to the owner or operator of the ship.

3.  In the case of detention of a ship, all costs relating to the detention in port shall be borne by the owner or operator of the ship.

4.  The detention shall not be lifted until full payment is made or a sufficient guarantee is given for reimbursement of those costs.

Article 29

Data to monitor implementation

Member States shall provide the Commission with the information listed in Annex XIV at the intervals stated in that Annex.

Article 30

Monitoring of compliance and performance of Member States

In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Community's port State control regime in accordance with Article 2(b)(i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.

Article 31

Committee procedure

1.  The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002(16).

2.  Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.  Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 32

Amendment procedure

Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3).

The amendments to the international instruments referred to in Article 2 may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 33

Implementing rules

When establishing the implementing rules referred to in Articles 8(4), 10(3), 14(3), 15(4), 23(5) and 27 in accordance with the procedures referred to in Article 31(2) and (3), the Commission shall take specific care that these rules take into account the expertise and the experience gained with the inspection system in the Community and in the Paris MOU.

Article 34

Penalties

Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, proportionate and dissuasive.

Article 35

Review

The Commission shall review the implementation of this Directive, in particular with a view to a uniform application of the Community inspection regime, no later than 18 months from ...(17). The review will examine, inter alia, the fulfilment of the overall Community inspection commitment laid down in Article 6, the number of port State control inspectors in each Member State, the number of inspections carried out, and the compliance with the annual inspection commitment by each Member State and the implementation of Articles 7 and 8.

The Commission shall communicate the findings of the review to the European Parliament and the Council and shall determine on the basis of the review whether it is necessary to propose an amending Directive or further legislation in this area.

Article 36

Implementation and notification

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles … and points … of Annexes … [articles or subdivisions thereof, and points of Annexes which have been changed as to their substance by comparison with the earlier Directive] not later than 18 months after the date fixed in Article 38. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

2.  When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

3.  Member States shall communicate to the Commission the text of the main provisions of national law adopted in the field covered by this Directive.

4.  In addition, the Commission shall inform the European Parliament and the Council on a regular basis of progress in the implementation of this Directive within the Member States.

Article 37

Repeal

Directive 95/21/EC, as amended by the Directives listed in Annex XV, Part A, is hereby repealed, with effect from …(18), without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XVI.

Article 38

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Articles … and points … of annexes … [articles or subdivisions thereof, and points of annexes which are unchanged by comparison with the earlier Directive] shall apply from ...(19).

Article 39

Addressees

This Directive is addressed to the Member States.

Done at

For the European Parliament For the Council

The President The President

(1) OJ C 318, 23.12.2006, p. 195. (2) OJ C 229, 22.9.2006, p. 38. (3) Position of the European Parliament of 25 April 2007 (OJ C 74 E, 20.3.2008, p. 584), Council Common Position of 6 June 2008 (OJ C 198E, 5.8.2008, p. 1) and Position of the European Parliament of 24 September 2008. (4) OJ L 157, 7.7.1995, p. 1. ║. (5) Judgement of 24 June 2008 (Commune de Mesquer) - not yet published in the ECR. (6) OJ L 194, 25.7.1975, p. 39. (7) OJ L 143, 30.4.2004, p. 56. (8) OJ L 208, 5.8.2002, p. 1. ║ (9) OJ L 138, 1.6.1999, p. 1. ║ (10) OJ L 184, 17.7.1999, p. 23. ║ (11) OJ C 321, 31.12.2003, p. 1. (12) OJ L 129, 29.4.2004, p. 6. (13) OJ L 208, 5.8.2002, p. 10 (14) OJ L 196, 7.8.1996, p. 8. (15) OJ L 332, 28.12.2000, p. 81. ║ (16) OJ L 324, 29.11.2002, p. 1. ║ (17) * The date referred to in Article 36(1). (18) * OJ: date of entry into force of this Directive. (19) * Date of entry into force of this Directive.

Elements of the Community Port State Inspection Regime

(referred to in Article 6)

The following elements shall be included in the Community Port State Inspection Regime:

I.  Ship risk profile

The risk profile of a ship shall be determined by a combination of the following generic and historical parameters:

1.  Generic parameters

(a)  Type of ship

Passenger ships, oil and chemical tankers, gas carriers and bulk carriers shall be considered as posing a higher risk.

(b)  Age of ship

Ships of more than 12 years old shall be considered as posing a higher risk.

(c)  Flag State performance

(i)  Ships flying the flag of a State with a high detention rate within the EU and Paris MOU region shall be considered as posing a higher risk.

(ii)  Ships flying the flag of a State with a low detention rate within the EU and Paris MOU region shall be considered as posing a lower risk.

(iii)  Ships flying the flag of a State for which an audit has been completed and, where relevant, a corrective action plan submitted, both in accordance with the Framework and procedures for the Voluntary IMO Member State Audit Scheme shall be considered as posing a lower risk. As soon as the measures referred to in Article 10(3) are adopted, the flag State of such a ship shall demonstrate compliance with the Code for the implementation of mandatory IMO instruments. 

(d)  Recognised organisations

(i)  Ships which have been issued with certificates by recognised organisations having a low or very low performance level in relation to their detention rates within the EU and the Paris MOU region shall be considered as posing a higher risk.

(ii)  Ships which have been issued with certificates by recognised organisations having a high performance level in relation to their detention rates within the EU and the Paris MOU region shall be considered as posing a lower risk.

(iii)  Ships with certificates issued by organisations recognised under the terms of Directive 94/57/EC shall be considered as posing a lower risk.

(e)  Company performance

(i)  Ships of a company with a low or very low performance as determined by its ships' deficiency and detention rates within the EU and the Paris MOU region shall be considered as posing a higher risk.

(ii)  Ships of a company with a high performance as determined by its ships' deficiency and detention rates within the EU and the Paris MOU region shall be considered as posing a lower risk.

2.  Historical parameters

(i)  Ships which have been detained more than once shall be considered as posing a higher risk.

(ii)  Ships which, during inspection(s) carried out within the period referred to in Annex II have had less than the number of deficiencies referred to in Annex II, shall be considered as posing a lower risk. 

(iii)  Ships which have not been detained during the period referred to in Annex II, shall be considered as posing a lower risk. 

In determining these risk profiles greater emphasis shall be given to the parameters for type of ship, flag State performance, recognised organisations and company performance.

II.  Inspection of ships

1.  Periodic inspections

Periodic inspections shall be carried out at predetermined intervals. Their frequency shall be determined by the ship risk profile. The interval between periodic inspections of high risk ships shall not exceed six months. The interval between periodic inspections of ships of other risk profiles shall increase as the risk decreases.

2.  Additional inspections

Ships, to which the following overriding or unexpected factors apply, are subject to an inspection regardless of the period since their last periodic inspection. However, the need to undertake an additional inspection on the basis of unexpected factors is left to the professional judgement of the inspector.

2.A.  2A. Overriding factors 

Ships to which the following overriding factors apply shall be inspected regardless of the period since their last periodic inspection:

–  Ships which have been suspended or withdrawn from their class for safety reasons since the last inspection in the European Union or in the Paris MOU region.

–  Ships which have been the subject of a report or notification by another Member State.

–  Ships which cannot be identified in the inspection database.

–  Ships which have failed to comply with the relevant notification requirements referred to in Article 9 of this Directive, in Directive 2000/59/EC, Directive 2002/59/EC and if appropriate in Regulation (EC) No 725/2004.

–  Ships which have been reported with outstanding deficiencies, except those for which deficiencies had to be rectified before departure.

–  Ships which:

2.B.  2B. Unexpected factors

Ships to which the following unexpected factors apply may be subject to inspection regardless of the period since their last periodic inspection. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority.

–  Ships which have: 

–  Ships carrying certificates issued by a formerly recognised organisation whose recognition has been withdrawn since the last inspection in the European Union or in the Paris MOU region.

–  Ships which have been reported by pilots or port authorities or bodies as having apparent anomalies which may prejudice their safe navigation or pose a threat of harm to the environment in accordance with Article 23 of this Directive.

–  Ships which have failed to comply with the relevant notification requirements referred to in Article 9 of this Directive, in Directive 2000/59/EC, Directive 2002/59/EC and if appropriate in Regulation (EC) No 725/2004.

–  Ships which have been the subject of a report or complaint by the master, a crew member, or any person or organisation with a legitimate interest in the safe operation of the ship, on-board living and working conditions or the prevention of pollution, unless the Member State concerned deems the report or complaint to be manifestly unfounded.

–  Ships which have been previously detained more than three months ago.

–  Ships which have been reported with outstanding deficiencies, except those for which deficiencies had to be rectified within 14 days after departure, and for deficiencies which had to be rectified before departure.

–  Ships which have been reported with problems concerning their cargo, in particular noxious and dangerous cargoes.

–  Ships which have been operated in a manner posing a danger to persons, property or the environment.

–  Ships where information from a reliable source became known, to the effect that their risk parameters differ from those recorded and the risk level is thereby increased. 

3.  Selection scheme 

3.A.  3A. Priority I ships shall be inspected as follows:

(a)  An expanded inspection shall be carried out on:

(b)  An initial or a more detailed inspection, as appropriate, shall be carried out on:

(c)  In case of an overriding factor:

3.B.  3B. If the competent authority selects a Priority II ship for inspection, the following selection scheme shall apply:

(a)  An expanded inspection shall be carried out on:

(b)  An initial or a more detailed inspection, as appropriate, shall be carried out on:

(c)  In case of an unexpected factor:

Design of Ship Risk Profile

(referred to in Article 10(2))

HRS are ships which meet criteria to a total value of 5 or more weighting points.

LRS are ships which meet all the criteria of the Low Risk Parameters.

SRS are ships which are neither HRS nor LRS.

Notification

(referred to in Article 9(1))

Information to be provided in accordance with Article 9(1): 

LIST OF CERTIFICATES AND DOCUMENTS

(referred to in Article 13(1))

1.  International Tonnage Certificate (1969).

2.  – Passenger Ship Safety Certificate,

–  Cargo Ship Safety Construction Certificate,

–  Cargo Ship Safety Equipment Certificate,

–  Cargo Ship Safety Radio Certificate,

–  Exemption certificate, including, where appropriate, the list of cargoes,

–  Cargo Ship Safety Certificate.

3.  International Ship Security Certificate (ISSC).

4.  Continuous Synopsis Record.

5.  International Certificate of Fitness for Carriage of Liquefied Gases in Bulk;

Certificate of Fitness for the Carriage of Liquefied Gases in Bulk.

6.  International Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk;

Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk.

7.  International Oil Pollution Prevention Certificate.

8.  International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk.

9.  International Load Line Certificate (1966);

International Load Line Exemption Certificate.

10.  Oil record book, parts I and II.

11.  Cargo record book.

12.  Minimum Safe Manning Document.

13.  Certificates or any other documents required in accordance with the provisions of the STCW Convention.

14.  Medical certificates, (see ILO Convention No 73 concerning Medical Examination of Seafarers).

15.  Table of shipboard working arrangements (ILO Convention No.180 and STCW 95).

16.  Records of hours of work and rest of seafarers (ILO Convention No.180).

17.  Stability information.

18.  Copy of the Document of Compliance and the Safety Management Certificate issued, in accordance with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (SOLAS 74, Chapter IX).

19.  Certificates as to the ship's hull strength and machinery installations issued by the recognised organisation in question (only to be required if the ship maintains its class with a recognised organisation).

20.  Document of compliance with the special requirements for ships carrying dangerous goods.

21.  High speed craft safety certificate and permit to operate high speed craft.

22.  Dangerous goods special list or manifest, or detailed stowage plan.

23.  Ship's log book with respect to the records of tests and drills, including security drills, and the log for records of inspection and maintenance of lifesaving appliances and arrangements and of fire fighting appliances and arrangements.

24.  Special purpose ship safety certificate.

25.  Mobile offshore drilling unit safety certificate.

26.  For oil tankers, the record of oil discharge monitoring and control system for the last ballast voyage.

27.  The muster list, fire control plan, and for passenger ships, a damage control plan.

28.  Shipboard oil pollution emergency plan.

29.  Survey report files (in case of bulk carriers and oil tankers).

30.  Reports of previous port State control inspections.

31.  For ro-ro passenger ships, information on the A/A-maximum ratio.

32.  Document of authorisation for the carriage of grain.

33.  Cargo securing manual.

34.  Garbage management plan and garbage record book.

35.  Decision support system for masters of passenger ships.

36.  SAR cooperation plan for passenger ships trading on fixed routes.

37.  List of operational limitations for passenger ships.

38.  Bulk carrier booklet.

39.  Loading and unloading plan for bulk carriers.

40.  Certificate of insurance or any other financial security in respect of civil liability for oil pollution damage (International Convention on Civil Liability for Oil Pollution Damage, 1992).

41.  Certificates required under Directive 2008/XX/EC of the European Parliament and of the Council of ... concerning civil liability and financial guarantees of shipowners.

42.  Certificates required under Directive 2008/XX/EC of the European Parliament and the Council of … [amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system and a regime for civil liability and financial guarantees for shipowners].

43.  Certificate required under Regulation (EC) No. XXXX/2008 on the liability of carriers of passengers by sea and inland waterways in the event of accidents(1).

44.  International Air Pollution Prevention Certificate.

45.  International Sewage Pollution Prevention Certificate.

(1) Inclusion of items 41║, 42. and 43. pending the adoption of respective legislation contained in the Third Maritime Package.

EXAMPLES OF "CLEAR GROUNDS"

(referred to in Article 13(3)

A.  Examples of clear grounds for a more detailed inspection

1.  Ships identified in Annex I part II 2A and 2B.

2.  The oil record book has not been properly kept.

3.  During examination of the certificates and other documentation, inaccuracies have been revealed.

4.  Indications that the crew members are unable to comply with the requirements related to on-board communication set out in Article 17 of Directive 2001/25/EC of the European Parliament and of the Council of 4 April 2001 on the minimum level of training of seafarers(1).

5.  A certificate has been fraudulently obtained or the holder of a certificate is not the person to whom that certificate was originally issued.

6.  The ship has a master, officer or rating holding a certificate issued by a country which has not ratified the STCW Convention.

7.  Evidence of cargo and other operations not being conducted safely, or in accordance with IMO guidelines, e.g. the content of oxygen in the inert-gas main supply to the cargo tanks is above the prescribed maximum level.

8.  Failure of the master on an oil tanker to produce the record of the oil discharge monitoring and control system for the last ballast voyage.

9.  Absence of an up-to-date muster list, or crew members not aware of their duties in the event of fire or an order to abandon the ship.

10.  The emission of false distress alerts not followed by proper cancellation procedures.

11.  The absence of principal equipment or arrangements required by the Conventions.

12.  Excessively unsanitary conditions on board the ship.

13.  Evidence from the inspector's general impression and observations that serious hull or structural deterioration or deficiencies exist that may place at risk the structural, watertight or weathertight integrity of the ship.

14.  Information or evidence that the master or crew is not familiar with essential shipboard operations relating to the safety of ships or the prevention of pollution, or that such operations have not been carried out.

15.  The absence of a table of shipboard working arrangements or of records of hours of work or rest of seafarers.

B.  Examples of clear grounds for the control of ships on security aspects

1.  The inspector may establish clear grounds for further control measures on security during the initial PSC inspection as follows:

2.  If clear grounds as described above are established, the inspector shall immediately inform the competent security authority (unless the inspector is also an Officer Duly Authorised for Security). The competent security authority shall then decide on what further control measures are necessary taking into account the security level in accordance with Regulation 9 of SOLAS 74, Chapter XI.

3.  Clear grounds other than those above are a matter for the Officer Duly Authorised for Security. 

(1) OJ L 136, 18.5.2001, p. 17. ║

PROCEDURES FOR THE CONTROL OF SHIPS

(referred to in Article 15(1))

Annex I, "Port State Control Procedures", to the Paris MOU and the following instructions from the Paris MOU, in their up-to-date version:

–  Instruction 33/2000/02: Operational Control on Ferries and Passenger Ships,

–  Instruction 35/2002/02: Guidelines for PSCOs on Electronic Charts,

–  Instruction 36/2003/08: Guidance for Inspection on Working and Living Conditions,

–  Instruction 37/2004/02: Guidelines in Compliance with STCW 78/95 Convention as Amended,

–  Instruction 37/2004/05: Guidelines on the Inspection of Hours of Work/Rest,

–  Instruction 37/2004/10: Guidelines for Port State Control Officers on Security Aspects,

–  Instruction 38/2005/02: Guidelines for PSCO's Checking a Voyage Data Recorder (VDR),

–  Instruction 38/2005/05: Guidelines on MARPOL 73/78 Annex I,

–  Instruction 38/2005/07: Guidelines on Control of the Condition Assessment Scheme (CAS) of Single Hull Oil Tankers,

–  Instruction 39/2006/01: Guidelines for the Port State Control Officer on the ISM-Code,

–  Instruction 39/2006/02: Guidelines for Port State Control Officers on Control of GMDSS,

–  Instruction 39/2006/03: Optimisation of Banning and Notification Checklist,

–  Instruction 39/2006/10: Guidelines for PSCOs for the Examination of Ballast Tanks and Main Power Failure Simulation (black-out test),

–  Instruction 39/2006/11: Guidance for Checking the Structure of Bulk Carriers,

–  Instruction 39/2006/12: Code of Good Practice for Port State Control Officers, 

–  Instruction 40/2007/04: Criteria for Responsibility Assessment of Recognised Organisations (R/O),

–  Instruction 40/2007/09: Guidelines for Port State Control Inspections for Compliance with Annex VI of MARPOL 73/78.

EXPANDED INSPECTIONS OF SHIPS

(referred to in Article 14)

In addition, subject to their practical feasibility or any constraints relating to the safety of persons, the ship or the port, an expanded inspection shall include the verification of specific items of risk areas depending on the type of vessel inspected, as established in accordance with Article 14(3). 

PROVISIONS CONCERNING REFUSAL OF ACCESS TO PORTS AND ANCHORAGES WITHIN THE COMMUNITY

(referred to in Article 16)

1.  If the conditions described in Article 16(1) are met, the competent authority of the port in which the ship is detained for the third time shall inform the master of the ship in writing that a refusal of access order will be issued which will become applicable immediately after the ship has left the port. The refusal of access order shall become applicable immediately after the ship has left the port after the deficiencies leading to the detention have been remedied. 

2.  The competent authority shall send a copy of the order of refusal of access to the flag State administration, the recognised organisation concerned, the other Member States, and the other signatories to the MOU, the Commission and the Paris MOU Secretariat. The competent authority shall also update the inspection database with information on the refusal of access without delay.

3.  In order to have the access refusal order lifted, the owner or the operator must address a formal request to the competent authority of the Member State that imposed the access refusal order. This request must be accompanied by a document from the flag State administration issued following an on-board visit by a surveyor duly authorised by the flag State administration, showing that the ship fully conforms to the applicable provisions of the Conventions. The flag State administration shall provide evidence to the competent authority that a visit on board has taken place.

4.  The request for the lifting of the access refusal order must also be accompanied, where appropriate, by a document from the classification society which has the ship in class following an on-board visit by a surveyor from the classification society, showing that the ship conforms to the class standards stipulated by that society. The classification society shall provide evidence to the competent authority that a visit on board has taken place.

5.  The access refusal order may be lifted only, after the period referred to Article 16 of this Directive has elapsed and following a re-inspection of the ship at an agreed port. If the agreed port is located in a Member State, the competent authority of that State may, at the request of the competent authority which issued the access refusal order, authorise the ship to enter the agreed port in order to carry out the re-inspection. In such cases, no cargo operations shall take place at the port until the refusal of access order has been lifted.

6.  If the detention which led to the issue of a refusal of access order included deficiencies in the ship's structure, the competent authority which issued the refusal of access order may require that certain spaces, including cargo spaces and tanks, are made available for examination during the re-inspection.

7.  The re-inspection shall be carried out by the competent authority of the Member State that imposed the refusal of access order, or by the competent authority of the port of destination with the agreement of the competent authority of the Member State that imposed the refusal of access order. The competent authority may require up to 14 days notice for the re-inspection. Evidence shall be provided to the satisfaction of this Member State that the ship fully complies with the applicable requirements of the Conventions.

8.  The re-inspection shall consist of an expanded inspection that must cover at least the relevant items of Annex VII.

9.  All costs of this expanded inspection will be borne by the owner or the operator.

10.  If the results of the expanded inspection satisfy the Member State in accordance with Annex VII, the access refusal order must be lifted and the company of the ship informed thereof in writing.

11.  The competent authority shall also notify its decision in writing to the flag State administration, the classification society concerned, the other Member States, the other signatories to the Paris MOU, the Commission and the Paris MOU Secretariat. The competent authority must also update the inspection database with information on the removal of the access without delay. 

12.  Information relating to ships that have been refused access to ports within the Community must be made available in the inspection database and published in conformity with the provisions of Article 26 and of Annex XIII.

Inspection report

(referred to in Article 17)

The inspection report must contain at least the following items.

I.  General

1.  Competent authority that wrote the report

2.  Date and place of inspection

3.  Name of the ship inspected

4.  Flag

5.  Type of ship (as indicated in the Safety Management Certificate) 

6.  IMO identification number

7.  Call sign

8.  Tonnage (gt)

9.  Deadweight tonnage (where relevant)

10.  Year of construction as determined on the basis of the date indicated in the ship's safety certificates

11.  The classification society or classification societies as well as any other organisation, where relevant, which has/have issued to this ship the classification certificates, if any

12.  The recognised organisation or recognised organisations and/or any other party which has/have issued to this ship certificates in accordance with the applicable Conventions on behalf of the flag State

13.  Name and address of the ship's company or the operator

14.  Name and address of the charterer responsible for the selection of the ship and type of charter in the case of ships carrying liquid or solid cargoes in bulk

15.  Final date of writing the inspection report

16.  Indication that detailed information on an inspection or a detention may be subject to publication.

II.  Information relating to inspection

1.  Certificates issued in application of the relevant Conventions, authority or organisation that issued the certificate(s) in question, including the date of issue and expiry

2.  Parts or elements of the ship that were inspected (in the case of more detailed or expanded inspection)

3.  Port and date of the last intermediate or annual or renewal survey and the name of the organisation which carried out the survey

4.  Type of inspection (inspection, more detailed inspection, expanded inspection)

5.  Nature of the deficiencies

6.  Measures taken.

III.  Additional information in the event of detention

1.  Date of detention order

2.  Date of lifting the detention order

3.  Nature of the deficiencies warranting the detention order (references to Conventions, if relevant)

4.  Indication, where relevant, of whether the recognised organisation or any other private body that carried out the survey has a responsibility in relation to the deficiencies which, alone or in combination, led to detention

5.  Measures taken.

CRITERIA FOR DETENTION OF A SHIP

(referred to in Article 19(3))

INTRODUCTION

Before determining whether deficiencies found during an inspection warrant detention of the ship involved, the inspector must apply the criteria mentioned below in points 1 and 2.

Point 3 includes examples of deficiencies that may of themselves warrant detention of the ship involved (see Article 19(4)).

1.  MAIN CRITERIA

When exercising ║professional judgement as to whether or not a ship should be detained the inspector must apply the following criteria:

Timing:

Ships which are unsafe to proceed to sea must be detained upon the first inspection irrespective of how much time the ship will stay in port.

Criterion:

The ship is detained if its deficiencies are sufficiently serious to merit an inspector returning to satisfy himself that they have been rectified before the ship sails.

The need for the inspector to return to the ship is a measure of the seriousness of the deficiencies. However, it does not impose such an obligation in every case. It implies that the authority must verify one way or another, preferably by a further visit, that the deficiencies have been rectified before departure.

2.  APPLICATION OF MAIN CRITERIA

If the answer to any of these assessments is negative, taking into account all deficiencies found, the ship must be seriously considered for detention. A combination of deficiencies of a less serious nature may also warrant the detention of the ship.

3.  To assist the inspector in the use of these guidelines, there follows a list of deficiencies, grouped under relevant Conventions and/or codes, which are considered of such a serious nature that they may warrant the detention of the ship involved. This list is not intended to be exhaustive.

3.1.  General

The lack of valid certificates and documents as required by the relevant instruments. However, ships flying the flag of States not party to a relevant Convention or not having implemented another relevant instrument, are not entitled to carry the certificates provided for by the Convention or other relevant instrument. Therefore, absence of the required certificates should not by itself constitute reason to detain these ships; however, in applying the "no more favourable treatment" clause, substantial compliance with the provisions is required before the ship sails.

3.2.  Areas under SOLAS 74

1.  Failure of the proper operation of propulsion and other essential machinery, as well as electrical installations.

2.  Insufficient cleanliness of engine room, excessive amount of oily-water mixtures in bilges, insulation of piping including exhaust pipes in engine room contaminated by oil, improper operation of bilge pumping arrangements.

3.  Failure of the proper operation of emergency generator, lighting, batteries and switches.

4.  Failure of the proper operation of the main and auxiliary steering gear.

5.  Absence, insufficient capacity or serious deterioration of personal life-saving appliances, survival craft and launching arrangements.

6.  Absence, non-compliance or substantial deterioration of fire detection systems, fire alarms, firefighting equipment, fixed fire-extinguishing installation, ventilation valves, fire dampers, quick-closing devices to the extent that they cannot comply with their intended use.

7.  Absence, substantial deterioration or failure of proper operation of the cargo deck area fire protection on tankers.

8.  Absence, non-compliance or serious deterioration of lights, shapes or sound signals.

9.  Absence or failure of the proper operation of the radio equipment for distress and safety communication.

10.  Absence or failure of the proper operation of navigation equipment, taking the provisions of SOLAS 74, Regulation V/16.2 into account.

11.  Absence of corrected navigational charts, and/or all other relevant nautical publications necessary for the intended voyage, taking into account that a type approved electronic chart display and information system (ECDIS) operating on official data may be used as a substitute for the charts.

12.  Absence of non-sparking exhaust ventilation for cargo pump rooms.

13.  Serious deficiency in the operational requirements, as described in Section 5.5 of Annex I to the Paris MOU.

14.  Number, composition or certification of crew not corresponding with the safe manning document.

15.  Failure to carry out the enhanced survey programme in accordance with SOLAS 74, Chapter XI, Regulation 2.

3.3.  Areas under the IBC Code

1.  Transport of a substance not mentioned in the Certificate of Fitness or missing cargo information.

2.  Missing or damaged high-pressure safety devices.

3.  Electrical installations not intrinsically safe or not corresponding to code requirements.

4.  Sources of ignition in hazardous locations.

5.  Contraventions of special requirements.

6.  Exceeding of maximum allowable cargo quantity per tank.

7.  Insufficient heat protection for sensitive products.

3.4.  Areas under the IGC Code

1.  Transport of a substance not mentioned in the Certificate of Fitness or missing cargo information.

2.  Missing closing devices for accommodation or service spaces.

3.  Bulkhead not gastight.

4.  Defective air locks.

5.  Missing or defective quick-closing valves.

6.  Missing or defective safety valves.

7.  Electrical installations not intrinsically safe or not corresponding to code requirements.

8.  Ventilators in cargo area not operable.

9.  Pressure alarms for cargo tanks not operable.

10.  Gas detection plant and/or toxic gas detection plant defective.

11.  Transport of substances to be inhibited without valid inhibitor certificate.

3.5.  Areas under the Load Lines Convention

1.  Significant areas of damage or corrosion, or pitting of plating and associated stiffening in decks and hull affecting seaworthiness or strength to take local loads, unless proper temporary repairs for a voyage to a port for permanent repairs have been carried out.

2.  A recognised case of insufficient stability.

3.  The absence of sufficient and reliable information, in an approved form, which by rapid and simple means, enables the master to arrange for the loading and ballasting of his ship in such a way that a safe margin of stability is maintained at all stages and at varying conditions of the voyage, and that the creation of any unacceptable stresses in the ship's structure are avoided.

4.  Absence, substantial deterioration or defective closing devices, hatch closing arrangements and watertight doors.

5.  Overloading.

6.  Absence of draft mark or draft mark impossible to read.

3.6.  Areas under the MARPOL Convention, Annex I

1.  Absence, serious deterioration or failure of proper operation of the oily-water filtering equipment, the oil discharge monitoring and control system or the 15 ppm alarm arrangements.

2.  Remaining capacity of slop and/or sludge tank insufficient for the intended voyage.

3.  Oil Record Book not available.

4.  Unauthorised discharge bypass fitted.

5.  Survey report file missing or not in conformity with Regulation 13G(3)(b) of the MARPOL Convention.

3.7.  Areas under the MARPOL Convention, Annex II

1.  Absence of the P&A Manual.

2.  Cargo is not categorised.

3.  No cargo record book available.

4.  Transport of oil-like substances without satisfying the requirements or without an appropriately amended certificate.

5.  Unauthorised discharge bypass fitted.

3.8.  Areas under the MARPOL Convention, Annex V

1.  Absence of the garbage management plan.

2.  No garbage record book available.

3.  Ship's personnel not familiar with disposal/discharge requirements of garbage management plan.

3.9.  Areas under the STCW Convention and Directive 2001/25/EC.

1.  Failure of seafarers to hold a certificate, to have an appropriate certificate, to have a valid dispensation or to provide documentary proof that an application for an endorsement has been submitted to the flag State administration.

2.  Evidence that a certificate has been fraudulently obtained or the holder of a certificate is not the person to whom that certificate was originally issued. 

3.  Failure to comply with the applicable safe manning requirements of the flag state administration.

4.  Failure of navigational or engineering watch arrangements to conform to the requirements specified for the ship by the flag State administration.

5.  Absence in a watch of a person qualified to operate equipment essential to safe navigation, safety radio communications or the prevention of marine pollution.

6.  Failure to provide proof of professional proficiency for the duties assigned to seafarers for the safety of the ship and the prevention of pollution.

7.  Inability to provide for the first watch at the commencement of a voyage and for subsequent relieving watches persons who are sufficiently rested and otherwise fit for duty.

3.10.  Areas under the ILO Conventions

1.  Insufficient food for voyage to next port.

2.  Insufficient potable water for voyage to next port.

3.  Excessively unsanitary conditions on board.

4.  No heating in accommodation of a ship operating in areas where temperatures may be excessively low.

5.  Insufficient ventilation in accommodation of a ship.

6.  Excessive garbage, blockage by equipment or cargo or otherwise unsafe conditions in passageways/accommodation.

7.  Clear evidence that watch keeping and other duty personnel for the first watch or subsequent relieving watches are impaired by fatigue.

3.11.  Areas which may not warrant a detention, but where e.g. cargo operations have to be suspended.

Failure of the proper operation (or maintenance) of inert gas system, cargo-related gear or machinery are considered sufficient grounds for stopping cargo operation.

MINIMUM CRITERIA FOR INSPECTORS

(referred to in Article 22(1) and (5))

1.  Inspectors must have appropriate theoretical knowledge and practical experience of ships and their operation. They must be competent in the enforcement of the requirements of the Conventions and of the relevant port State control procedures. This knowledge and competence in enforcing international and Community requirements must be acquired through documented training programmes.

2.  Inspectors must, as a minimum, have either:

3.  The inspector must have:

4.  The inspectors mentioned under 2(a) must have gained maritime experience of at least five years including periods served at sea as officers in the deck- or engine- department respectively, or as a flag state inspector or as an assistant port State control inspector. Such experience shall include a period of at least two years at sea as a deck or engine officer.

5.  The inspectors must have the ability to communicate orally and in writing with seafarers in the language most commonly spoken at sea.

6.  Inspectors not fulfilling the above criteria are also accepted if they are employed by the competent authority of a Member State for port State control at the date of adoption of this Directive.

7.  Where in a Member State inspections referred to in Article 15(1) and (2) are performed by port State control inspectors; those inspectors shall have appropriate qualifications, which shall include sufficient theoretical and practical experience in maritime security. This shall normally include:

FUNCTIONALITIES OF THE INSPECTION DATABASE

(referred to in Article 24(1))

1.  The inspection database shall include at least the following functionalities:

2.  The inspection database shall have the capability to adapt to future developments and to interface with other Community maritime safety databases, including SafeSeaNet, which shall provide data on ships' actual calls to ports of Member States and, where appropriate, to relevant national information systems.

3.  A deep hyperlink shall be provided from the inspection database to the Equasis information system. Member States shall encourage the consultation of the public and private databases relating to ship inspection accessible through Equasis║ by the inspectors. 

Publication of information related to inspections, detentions and refusals of access in ports of Member States

(referred to in Article 26)

1.  Information published in accordance with Article 26 must include the following:

2.  For ships which have been detained, information published in accordance with Article 26 must also include:

Data provided in the context of monitoring implementation

(referred to in Article 29)

1.  Every year Member States must provide the Commission with the following data for the preceding year by 1 April at the latest.

1.1.  Number of inspectors acting on their behalf in the framework of port State control

This information must be communicated to the Commission using the following model table (1)(2).

(1) Where the inspections carried out in the context of port State control represent only part of the inspectors' work, the total number of inspectors must be converted to a number equivalent to full-time inspectors. Where the same inspector works in more than one port or geographical area the applicable part-time equivalent must be counted in each port.

(2) This information must be provided at national level and for each port of the Member State concerned. For the purposes of this Annex, a port is taken to mean an individual port or the geographical area covered by an inspector or team of inspectors, comprising several individual ports where appropriate.

1.2.  Total number of individual ships that entered their ports at national level. The figure shall be the number of ships covered by this Directive that entered their ports at national level counted only once. 

2.  Member States must:

Part A

Repealed Directive with its successive amendments

(referred to in Article 37)

Part B

List of time-limits for transposition into national law

(referred to in Article 37)

CORRELATION TABLE

(referred to in Article 37)