Liability of Classification Societies Assignment Sample

• Subject Name : Law

Analysis of The Delegation of Authority to Recognised Organisations in The Tuvalu Ship Registry

The legal aspect of delegation of authority to the recognised organisations (ROs) to perform their general duties of flag states is contained in international and national legal instruments. The international conventions and instruments that deal with the delegation of authority to recognised organisations (ROs) are included in the IMO (International Maritime Organization) instruments, all under the UNCLOS 1982.

The United Nations Convention on the Law of the Sea (UNCLOS) 1982, is a convention which considers the various elements of the sea and guidelines for its uses, like guidance for giving the grant for registration of a ship by a State. After the registration of a ship, the flag State is entitled to perform certain duties laid down by the UNCLOS. According to Article 94 para 4(a) of the UNCLOS, the flag States needs to take necessary measures to ensure the survey of the ships at appropriate intervals is carried out, before and after their registration by qualified surveyors of ships (Tuvalu Ship Registry). Generally, this practice is delegated to recognised organizations (ROs), because of less number of qualified staff for the flag administrations (Tuvalu Ship Registry).

SOLAS and other such International Conventions of the shipping industry allow the flag state to administer and delegate the authority for statutory services like inspection and survey of ships to a Recognised Organization (RO). This delegation of authority to Recognised Organizations (ROs) is necessary as usually many flag states or administrations do not possess sufficient technical expertise and experience, staff or a global reach to conduct all the essential statutory processes like inspections and surveys with the help of its resources. The authorized RO is responsible for the work that it undertakes on behalf of the flag state or administration. The inspection and survey work principles are quite similar to the classification surveys, thus the verification by the RO ensures that a ship complies with applicable requirements. The inspections and surveys scopes are given by the relevant national laws. These laws are developed from the International Conventions and the Government is a signatory to this convention. Along with these laws, some additional instructions may also be issued by the flag State (Tuvalu Ship Registry).

4.1 Delegation of Authority by Tuvalu Flag State to ROs:

The Tuvalu Ship Registry is appointed by the Government of Tuvalu as an authority to issue all certificates necessary for the vessel and ship to sail and trade under the flag of Tuvalu (Tuvalu Ship Registry).

A flag State may delegate authority to an organization recognized as complying with the provisions of the RO Code to perform, on its behalf, statutory certification and services under mandatory IMO instruments and its national legislation (International Maritime Organization). The flag State shall not authorize functions beyond RO's capabilities. In this respect, the flag State shall take into consideration part 2 of the RO Code for authorization. Flag States should cooperate to ensure that ROs to whom they delegate authority to adhere to the provisions of the RO Code.

To effective performance of responsibilities and duties the flag States shall:

• through the issue of national legislation employ policies, to ensure enforcement of the requirements of all safety and pollution prevention procedure
• Assignment of duties within their administrations for updating and revising any related policies adopted, as essential.
• A flag State needs to develop resources and processes which can administer a safe environment and other such environmental protection schemes.
• Flag state must ensure communication of instructions for the implementation of all international and national rules and regulations that are mandatory to include in certificates issued by a classification society, which is recognized by the flag State by the provisions of SOLAS regulation (International Maritime Organization)
• The flag state should comply with the international standards of training, certification and watchkeeping of seafarers.
• Flag states should prevent fraud by withdrawing, suspending or cancelling the certificates issued by the State
• Making administrative arrangements, for training, assessment and certification activities conducted under the purview of another State, which are such that the flag State accepts its responsibility for ensuring the competence of masters, officers and other seafarers serving on ships entitled to fly its flag
• A flag State must make sure that the ships are allowed to fly its flag have sufficient and efficient personnel, taking into account relevant and existing measures such as the Principles of Safe Manning adopted by the Organization.

Some of the flag state responsibilities, which they may delegate to the ROs are as follows:

• The competent authority shall establish an effective system for the inspection and certification of maritime labour conditions.
• The competent authority may, where appropriate by Regulations 22.2 below, authorize public institutions or other organizations which it recognizes as competent and independent to carry out inspections or to issue certificates or to do both.
• The competent authority shall establish clear objectives and standards covering the administration of the inspection and certification system referred to paragraph 1 above, as well as adequate overall procedures for its assessment of the extent to which those objectives and standards are being attained.
• Ships must have a copy of the Convention available on board.

Factors to be considered while delegating authority to recognized organizations:

(1) The competent authority may recognize public institutions or other organizations as competent and independent, to carry out inspections or certification of ships to determine compliance with the provisions of this Merchant Shipping (Maritime Labour Convention 2006) Regulations.

(2) Before recognizing an organization review of their competency should be carried out

(3) The organization should be reviewed for the necessary knowledge of the requirements of the Convention as well as of applicable national laws and regulations and relevant international instruments

(4) The organization should be checked for possessing the necessary expertise for the required services and adequate knowledge of ship operations, like knowing the minimum requirements for maritime staff to work on a ship, conditions of employment, accommodation, recreational facilities, food and catering, accident prevention, health protection, medical care, welfare and social security protection;

 (5) The organization must be reviewed for having adequate technical, managerial support and adequate number of qualified professional staff to provide the required service, representing an adequate geographical coverage;

(6) That organization should be considered which can provide a timely service of satisfactory quality and the one who is independent and accountable in its operations

(7) The flag state usually recognizes those organizations who have systems to timely update the knowledge and expertise of their staff.

4.1.1 Requirement of The Formal Agreement Between the Flag State and The Recognised Organisation

The formal agreement between the flag State and the recognised organisation is given and mentioned by the Code for Recognized Organizations (RO Code). The Code for Recognized Organizations (RO Code) was adopted by the Organization by resolutions MSC.349(92) and MEPC.237(65).

According to this code, it provides the flag states with a standard that helps them in achieving global implementation which is collaborated and consistent, of requirements that are established by the instrument of the International Maritime Organization (IMO), for the evaluation of recognized organizations (ROs) and its authorization.

This code also provides the Flag States with transparent, independent and harmonized mechanisms, which help the recognized organizations (ROs) in their consistent oversight in a manner which is efficient and effective manner. This code also helps to provide a clarification about the responsibilities of organizations which have authorization as recognized organizations (ROs) for a flag State and also gives the overall scope of authorization.

The purpose of the code is to serve as the international standard and the consolidated instrument which contains a minimum criteria against the organizations which are assessed towards recognition and authorization and also gives the guidelines for the oversight by flag States. This code can be applied to all the organizations which are to be taken into account for recognition or the organizations that are recognized by the flag State to perform, on its behalf, statutory certification and services under mandatory IMO instruments and national legislation. It also applies to all the flag States that have an intention to recognize an organization to perform, on their behalf, statutory certification and services under mandatory IMO instruments. The Code establishes and outlines all the mandatory requirements that an organization shall fulfil to be recognized by a flag State (part 1). The code also establishes the mandatory requirements that recognized organizations (ROs) must meet while performing all the statutory certification and services on the behalf of its authorizing flag States. The code gives the mandatory requirements that flag States must abide to when authorizing a recognized organizations (ROs). Part 3 of the code also gives the guidelines for oversight of the flag State of ROs.

4.1.2 Minimum Requirements To Be Met by The Recognised Organisation

The Code gives the functional, organizational and control requirements that apply to the recognized organizations (ROs) for undertaking the statutory certification and services performed under mandatory IMO instruments, such as, but not limited to, SOLAS, MARPOL and the Load Lines Conventions (Maritime Labour Convention Tuvalu, 2006).

Some minimum requirements shall be met by the recognized organizations (ROs). These minimum requirements can be given as follows:

• The recognized organizations (ROs) must develop and systematically maintain its rules or regulations. One version of these ruled and regulations must be given in the English language, for the design, construction and certification of ships and the related significant engineering systems and should also provide for adequate research capability to update the published criteria appropriately.
• The RO and its staff must not get involved in any activities that may be conflicting with their independence of judgement and integrity about their statutory certification and services.
• The recognized organizations (ROs) and its employees who are responsible to carry out the statutory certification and services should not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of the item which is being considered for statutory certification and services, nor the authorized representative of any of these parties.
• The RO should not only substantially be dependent on a single commercial enterprise for its revenue.
• All ROs shall be governed by the principles of ethical behaviour, which are described in a Code of Ethics. The Code of Ethics recognizes the inherent responsibility of ROs associated with a delegation of authority to the inclusion of assurance of adequate performance of services.
• The RO performing statutory certification and services must ensure the presence of competent surveyors and auditors who are duly qualified, trained and authorized to execute all duties and activities incumbent upon their employer, within their level of work responsibility.
• All ROs needs to define and document the responsibilities, authorities, qualifications and interrelation of personnel whose work affects the quality of its services.
• All ROs should meet the requirement of following transparency. Transparency is disclosing and providing access to all information related to the statutory certification and services carried out by the RO on behalf of a flag State.
• The ROs shall meet the requirement of availability of sufficient resources
• Having a quality management system in place is another important requirement that shall be fulfilled by the ROs
• Along with these the ROs should also meet some important documentation requirements of quality policy and quality objectives, maintaining quality manual, maintaining the documents containing a list of ships for which statutory certification and services are provided, Pro-forma reports, checklists and certificates appropriate to the activities covered by this certification, documents and data submitted to the RO for verification and/or approval, etc.

4.2 Requirement of Oversight of Flag State Administration on the ROs Activities

Part 3 of the recognized organizations (ROs) code outlines the guidelines of oversight of flag state administration on the ROs activities. These activities include the statutory certification and services on which the ROs perform on behalf of flag State. Oversight can be described as any activity carried out by a flag State to ensure that the authorized ROs services complies with IMO and national requirements of the recognizing flag State. This part of the code also provides the guidelines on the principles of this oversight like guidelines are given for activities like inspection of ships, auditing activities, and other monitoring activities.

This part of the code applies to all flag States that have authorized ROs to perform statutory certification and services on their behalf. It includes all provisions for oversight of flag States and defines the guidelines, which are non-essential, to help the flag States in the development and implementation of an effective oversight programmes of the recognized organizations (ROs).

The requirements of oversight of flag State administration on the ROs activities can be given as follows:

• Communicate the oversight programme objectives to relevant parties
• Selection and appointment of the necessary staff, and also established procedures for evaluating the appointed personnel
• Maintaining the documentation of the ROs quality management system
• Having access to internal instructions, circulars and guidelines, RO's documentation relevant to the flag State's fleet
• The oversight programme should meet the statutory, regulatory and contractual requirements
• The flag State is required to establish the objectives and extent of the oversight programme, responsibilities and procedures
• They must ensure that sufficient resources are provided like financial resources, auditing techniques, staff and other technical experts, etc.

4.2.1 Necessity for The Directorate of Maritime Affairs to Monitor the Activities of the ROs

After delegating authority to an RO by a flag State, the flag state needs to administer its supervision on the activities of the RO who act on behalf of it. This responsibility of monitoring the activities of the RO lies with the administration of flag state like the Directorate of Maritime Affairs. The Directorate of Maritime Affairs needs to regulate the authorisation and monitor the RO activities. This monitoring by the flag state administration is necessary for ensuring compliance with international policies and regulations. The monitoring regulation will also include detaining and adopting corrective measures in instances where is ship flying its flag is detained by a port State (Santa, 2018). Once the ROs are delegated the authority to carry out the assigned statutory services, the flag State should be capable and have the sufficient resources, to implement a monitoring programme. Such programmes are employed to ensure that the ROs are effectively performing their services and the delegated duties, like inspecting the vessels under its flag, and ensuring that it exercises an efficient jurisdiction in administrative, environmental and other technical aspects in functioning. The flag State of Tuvalu must fulfil its international obligation and maintain its effective control over ships flying its flag. The flag State should participate in the oversight programme with monitoring and communication resources. It should monitor and supervise its recognised organisation (ROs) and confirming that all the international obligations are fulfilled and also supervise the duties delegated to ROs and maintain systems for efficient statutory certification and services provided.

4.2.2 Issues of The Required Personnel

The shipping industry of Tuvalu is facing some major challenges presently and the challenges are increasing day by day. One of the major issues faced by the shipping industry is the issues with the required personnel or staff. The number of efficient personnel in this industry with the required expertise is declining. Due to many changes in the maritime regulations and policies many maritime personnel now are considering leaving their home country and taking up job opportunities in the overseas shipping industry. Also, the increasing international competition in the shipping industry due to the global pressures is making maritime personnel job more difficult, resulting in dissatisfaction among these employees. As per some experts, maritime personnel of the Tuvalu are compelled to lengthy work periods at sea to remain competitive. Being away from home for long periods, and operating in a constrained and remote spaces with multinational crews under security controls and speedy turnarounds, long duty hours with sleep deprivation and decreased shore time have negative impacts on the physical and emotional health of these personnel and also on their safety.

4.3 Reasons for Detention of Authorized ROs

Some of the major causes or reasons for the detention of the authorized ROs are as follow:

• ROs causing delays in the services due to incorrect documentation. Due to incorrect documentation, the major processes of statutory certifications and services can come to halt which results in great losses (Dalida, 2019).
• Major detention is also possible when are ROs are accountable to maintain the most important documents, are unable to do so, and thus are detained (Dalida, 2019).
• The ROs not fulfilling all the minimum requirements and guidelines laid down by the IMO, may put the industry at risk and are thus detained and their authorization is ceased.
• The ROs are also detained when these ROs are involved in the fraudulent practices such as manipulating certificates or fake certificates, and other documents important and legal documents (Dalida, 2019).

4.3.1 Analysis of The Detainable Deficiencies Attributable to ROs

The detainable deficiencies are the deficiencies that are a reason for detention of a ship during a port state control. An RO attributable or related deficiency is simply described as the deficiency about the RO who has undertaken the service. This implies that the RO that has undertaken the relevant survey or that issued certification has a responsibility in connection with the deficiencies that caused the ship detention (Santa, 2018).

According to Paris MoU, some of the detainable deficiencies associated with RO can be described as:

• A serious structural deficiencies like corrosion, wastage, cracking and buckling unless it is clear that the deficiency has occurred since the last survey conducted by the RO
• A serious deficiency in equipment or non-structural fittings like of fire main, air pipes, cargo hatches, rails, masts, ventilation trunks/ducts, accommodation and recreational facilities etc. and it is less than 90 days since the last survey conducted by the RO
• A serious deficiency associated with out-of-date equipment which was out-of-date at the time of the last survey.
• Approval or endorsement of plans and manuals missing, if required to comply with the provisions for issuance of statutory certificates

4.3.2 Analysis of The Performance of ROs in the Tuvalu Ship Registry

Analysis of performance of ROs at regular intervals is essential for assessing the performance of a flag State. This analysis is also an indicator for the health of the flag State. The regular analysis helps to control and take preventive measure in response to the detainable deficiencies concerning the ROs. The higher the performance of the RO less number of detainable deficiencies are expected to occur.

4.3.3 Relationship Between Type of ROs Detain-Able Deficiencies and Age of Ships

One important factor to be considered while taking into account the selection and considering the risk factors to assess the performance of a flag is the age of the ship or the vessel. The age of the ship or the vessel affects the performance of the flag State. The age of the ship or the vessel also acts as an indicator of good performance of the flag State. A flag State with a higher number of younger ships can get more quality tonnage than compared to a flag State with higher number of old ships (Santa, 2018). Also, a higher number of detainable deficiencies are expected in ships which are old above 10 years (Santa, 2018).

References for Liability of Classification Societies

Dalida, M. (2019). ROs, forgery, and fraud in the context of Honduran ship certificates. World Maritime University Dissertations, 1210, 1-109.

IMO instruments implementation code (n.d). Resolution A.1070 (28) (adopted on 4 December 2013). Retrieved from: http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions.

International Maritime Organization (IMO) (n.d). IMO: our work. Retrieved from: http://www.imo.org/en/OurWork/MSAS/Pages/RecognizedOrganizations.aspx

Maritime Labour Convention Tuvalu (2006). Merchant Shipping Regulations. Retrieved from: https://tuvalu-legislation.tv/cms/images/LEGISLATION/SUBORDINATE

Santa, N. (2018). An analysis of the delegation of authority to the recognised organisations acting on behalf of the flag state: a case study on the Togolese flag. World Maritime University Dissertations, 622, 1-93.

Tuvalu Ship Registry (n.d). Marine circular (MC-2/2005/12/2) of Tuvalu Ship Registry. Retrieved from: https://www.classnk.or.jp/hp/pdf/statutory/ism/flag/tuvalu/ism_tuvalu_

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