ISPS Code Guidance

Notices 14 June 2004

As members will know from our Circular dated 12 November 2003 and articles in the last 2 issues of Beacon, the ISPS Code is part of amendments made to SOLAS and enters into force on 1 July 2004. In addition to applying to ports, it applies to all cargo ships and passenger ships of 500GT or more and mobile offshore drilling units engaged on international voyages. Both ports and vessels need to be ISPS certified by 1 July 2004 (vessels need an International Ship Security Certificate (ISSC) from their Flag State).

P&I and FDD COVER

We remind members that, as per Rule 29.1, it is a condition of cover that they comply with all statutory requirements of their Flag State which includes the requirements of the ISPS Code.

DELAY

It is not expected that all vessels and ports will have obtained the necessary ISPS certification by 1 July 2004. Nor is it expected, at this time, that any extension period for compliance will be given. This will have major repercussions for the shipping trade as delays whilst awaiting an ISPS examination and/or denial of entry into port can be expected:

• for vessels which are not ISPS certified or
• for vessels which are ISPS certified but whose previous port of call was a non-certified port.

In the U.S., delay may be caused to a vessel which has called at a non-compliant port in one of 5 previous ports of call. Vessels are only required to keep records of past calls at port facilities and ship-to-ship activities taking place on or after 1 July 2004. However, we expect that port state control officers may ask for information on the last 10 ports of call prior to 1 July and may consider what security measures were taken. This may lead to delay.

Members should prepare for this by reviewing the charterparty clauses in operation and by advising the crew of what steps should be taken to minimise delay. Our suggestions are set out below.

Steps to take if vessel not yet received its ISSC :

• Operate the vessel as if the VSP was in place.
• Keep documentation onboard of what steps have been taken, and when, to comply with the ISPS Code e.g. copies of documents submitted/received.
• All crew members should know the name of the Vessel Security Officer and be familiar with security measures, the MARSEC levels 1-3 (normal/heightened/exceptional) and which level is currently in operation.
• Install and operate security equipment.
• Perform drills and exercises as envisaged by the VSP.
• Log all security actions in the ship's logs
• Keep records of the last 10 port calls.
• Keep records of all crew shore leave and all visitors onboard (picture ID) including USCG (United States Coast Guard). Both crew and visitors should have ID badges, preferably colour-coded to indicate the level of authorised access.
• Mark all restricted areas. Locks or escorts should be provided to restrict access or camera (or similar) surveillance used.
• Use a Declaration of Security for all port calls.

If previous port of call not compliant with ISPS Code:

• Operate the vessel at a higher level of security than otherwise (at least MARSEC level 2 and at least as high as at the next intended port of call).
• Restrict access to the vessel and perform drills and exercises as envisaged by the VSP.
• Log all security actions in the ship's logs
• Keep records of all crew shore leave and all visitors onboard (picture ID) including USCG. Both crew and visitors should have ID badges, preferably colour-coded to indicate the level of authorised access.
• Use a Declaration of Security.
• Report the actions taken when arriving at next port of call. For the U.S., report actions taken in the Notice of Arrival or directly to the Captain of the Port (COTP) at the intended U.S. port.

USA

ISPS Pre-enforcement Programme in U.S.
USCG requires all vessels to report their ISSC status in their 96-hour advance Notice of Arrival so that a security examination can be scheduled. Vessels found to be ISPS compliant will be credited with a satisfactory examination. We recommend that all ISPS certified vessels calling at U.S. ports request a security examination under this programme in order to avoid possible delay at their next U.S. port of call on or after 1 July 2004.

A vessel approved under the pre-enforcement programme will not be subject to another security examination on or after 1 July 2004 unless randomly selected or is subject to other targeting criteria e.g. has called at a non-compliant port in one of its last 5 ports of call.

ISPS Compliance in US on or after 1 July 2004
On or after July 1 2004, a vessel’s first visit to a U.S. port will be subject to an ISPS-MTSA security examination if that vessel has not had a compliance examination during the past twelve months.

USCG List of Non-compliant Ports
It is expected that USCG will make available a list of non-compliant countries as soon as possible after 1 July by issuing a Port Security Advisory which will be posted on the MTSA-ISPS Information Site.

Interim ISSCs
ISPS Code provisions relating to interim ISSCs will be recognised by USCG but flag state letters attempting to "approve" the vessel without issuance of the certificate will not be acceptable.

CHARTERPARTY CLAUSES

We also recommend that members address the issue of who will be responsible for any delay arising out of operation of the ISPS Code by inserting an ISPS Clause in their charterparties. Both BIMCO and INTERTANKO have produced suitable clauses for voyage charterparties:

INTERTANKO Maritime Security Clause for Voyage Charters
BIMCO ISPS Clauses for Time and Voyage Charterparties

For tanker operators, INTERTANKO have also published a helpful review of security clauses in voyage charters. BIMCO has produced an ISPS clause for time charterparties which INTERTANKO has also endorsed for use by their members.

These ISPS Clauses basically provide for delay to be for charterers' account, except where caused by owners' negligence. For voyage charters, time will count and compensation will be at the demurrage rate.

Some members, particularly Charterer members, may have individual requirements which they should discuss with their Skuld defence lawyer. We are happy to assist defence members in amending any of the standard charterparty clauses to meet their individual requirements.

CONCLUSION

We remind members that consideration must be given now as to what to do on 1 July 2004. In addition to reviewing charterparty clauses in operation, the vessels' crew will need specific guidance as to what to do and how to minimise delay.

OTHER INFORMATION/USEFUL LINKS

Items of interest/links which members might find useful:

BIMCO
INTERTANKO
INTERTANKO report of USCG Audit under ISPS

IMO:
IMO home page
IMO on Maritime Security
IMO GSIS database for ISPS compliant ports - As yet about 50 countries have named their Single National Point of Contact (for sending/obtaining information) but only a few have so far provided input on compliant ports. It is hoped that more information will be added to the database in the course of June.
IMO Press Briefings
IMO Circulars
IMO MSC/Circular 1111 - provides additional guidance relating to implementation of SOLAS Chapter XI-2 and the ISPS Code.
IMO Report - 78th Session Maritime Safety Committee 12-21 May 2004

USA:
MTSA-ISPS Information Site, to answer queries regarding MTSA (Maritime Transportation Security Act) and the ISPS Code in the U.S.
NVIC page of the MTSA ISPS Information Site - details changes made to Navigational and Vessel Inspection Circulars. Full details of USCG port state control policy are published in NVIC 06-03.
World Shipping Council Update Regarding Coast Guard Enforcement of ISPS Code - a useful summary of USCG policy and recent changes to NVIC 06-03.

Please contact your usual Skuld representative if you need any further advice or information.

Sara Gillingham
Senior Lawyer and Knowledge Management Officer