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1 INTRODUCTION

The inspection of ships is the milestone of

seaworthiness. This is the reason why the control of

the ships was firstly regulated by international

conventions, introducing the strong connection that

was necessary between the flag state and the ship.

This connection didn’t serve only in creating a legal

environment within which the legal cases on board a

ship could be resolved, but also served in creating a

stable legal environment for the ship’s control.

However, the needs of the shipping community

industry made it clear that this “genuine link” despite

the fact it was necessary it wasn’t sufficient enough to

dominate the control procedure of ships. More

precisely, the globalization and the phenomenon of

open registries had as a consequence poor or

mismanagement within the scope of cost cutting

priorities and global competition. The states of open

registries and especially those of flags of convenience,

in several occasions, cannot exercise appropriate

administrative control on ships that are registered at

their national registries. As a result, the ships that are

flying their flag do not respect international

regulations as concerns maritime security and safety.

In this reasoning, the procedure of Port State Control

(‘”PSC”) was introduced in order to make the

execution of controls more often and more objective.

Taking into account the fact that PSC is on the road

of its progress, a new model of controlling appeared

in order to affect PSC, the so-called remote

inspections/controls that are already practiced by the

flag states, classification societies and maritime

management companies. The distant control of ships

with the use of new technologies and modern

communication couldn’t leave aside the PSC. This

paper stresses the importance of the remote

inspections of PSC that became a necessity in the

pandemic era of COVID-19 and should continue their

existence in the field of PSC in the new digitalized era

of maritime industry. Some states such as Liberia have

already used the technology in order to response to

the current health guidelines and restrictions due to

COVID-19. Liberia was the first flag state that

introduced the remote vessel closings, instrument

recordation, remote class surveys and remote Annual

Safety Inspection (ASI) program.

The paper is focused on two issues. It concentrates

on the connection of inspections with the flag states,

as the idea of controlling vessels’ seaworthiness was

initially orientated. Secondly, it analyses PSC from the

From The Flag State Duty For Inspections To The

Remote Port State Control. The Necessity For Distant

Controls

D. Kiltidou

Aristotle University of Thessaloniki, Thessaloniki, Greece

ABSTRACT: Inspections are aiming at maritime safety. This paper describes the central role of flag states in

controlling the vessels that are registered at their national register. However, the effectiveness of the inspections

is mainly based on the Port State Control (PSC) inspections that are following the needs of the digital era

introducing the remote controls.

http://www.transnav.eu

the International Journal

on Marine Navigation

and Safety of Sea Transportation

Volume 14

Number 4

December 2020

DOI: 10.12716/1001.14.04.22

964

scope of its digitalization, taking into account the real

progress that has been done in flag states’ inspections,

following the paradigm of Liberia. These two

directions are studied in order to emphasize that

although the flag states’ inspection has the first role in

the control of the seaworthiness of the vessels that are

registered at their national registers, the PSC has

become the key for the global maritime safety. As a

consequence, the shipping community should give

prominence to the issue of the future effectiveness of

the inspections that are exercised from port states by

applying the modern communication and new

technologies of our era. However, it is to be noted that

although the modernization of PSC it is inevitably

necessary, there are a lot of challenges to be faced.

2 THE CONTROL OF SHIPS AS A FLAG STATE

DUTY

The inspection of ships is also a matter of jurisdiction

over ships plying the seas. The flag state jurisdiction

in inspecting the vessels flying their flag is the

evidence of the developments of maritime community

in order to respect safety at sea. More precisely, this

connection between the flag state and the ship sets a

legal framework under which the operation of the

ship is governed. Furthermore, it must be mentioned

that the flag of the ship plays an important role in the

application of international law when the flag states

have implemented international law into their

national legal system (Brownlie, 1998; Tetley, 1993;

Sigh, 1978; Lefrançois, 2010; Meyers, 1967). As a

consequence, international community imposed the

duty of flag state for inspections through international

conventions, such as the Convention on High Seas

1958 (“HSC”) and the United Nations Convention on

law of the Sea 1982 (“UNCLOS”).

2.1 The Duties Of Flag State for Inspections Under

UNCLOS

Each state can determine the conditions under which

a ship can fly its flag. But its jurisdiction does not stop

at this point. The flag state has many duties regarding

the effective jurisdiction and control of ship that is

registered at its national ship register. More precisely,

the article 94 of the UNCLOS elucidates the duties of

the flag states in a separate article. The provisions of

the article are based on the article 5 and 10 of the

Convention HSC. The final form of article 94, and

especially articles 2-5, were based on a working paper

on the high seas stating precisely the obligations of

the flag state (Belgium, Denmark, France, Ireland,

Italy, Luxembourg, Netherlands and United

Kingdom: Working paper on High Seas, 12 August

1974, UNCLOS III, official records, III). The article 94

of UNCLOS lists explicitly flag state requirements

(Franckx, 1997; Kasoulides, 1989). Moreover, article 94

should be read in conjunction with the provisions of

the article 92 of the same convention that stresses that

ships shall sail under the flag of one state only and,

shall be subject to its exclusive jurisdiction on the high

seas. The scope of the article, it can be said that it is to

secure more effective implementation of the duties of

the flag state and not to establish criteria by reference

to which the validity of registration of ships can be

challenged by other states.

The flag state exercises its jurisdiction and controls

in administrative, social and technical issues, as it is

described in par. 1. of the article. This paragraph of

the article has been taken from article 5 of HSC where

it was adopted in order to strengthen the genuine link

with regard to the nationality of the ship and in order

to give further indication to the link between the flag

state and ships flying its flag. However, at this point it

must be stressed that although all the above

mentioned matters such as administrative, social and

technical are strongly linked to the state were the ship

is registered, in article 94 there is absence of a link

between them and the genuine link provision of

article 91, par. 1. This view increases the difficulty of

arguing that a failure by the flag state to perform its

duties could rise evidence of the absence of genuine

link, as it was stated by Brown (Brown, 1994).

Otherwise the failure of a flag state to accomplish

with the requirements of article 94 would render

national registration a nullity. The article 1 of the

United Nations Convention on the Registration of

Ships 1986 (“CRS 1986”) precise the connection

between the flag state and the ship as it mentions that

the effective exercise of the jurisdiction and control

over ships concerns the identification and

accountability of the ship owners and operators as

well as the administrative, technical, social and

economic matters. At this moment this Convention is

not into force, as only 14 countries have become

signatory parties it. In par. 2 of the same article the

duties of the flag state are more concrete and in these

are included the registration of a ship at one country’s

ship register containing the names and “particulars”

of ships flying its flag. Furthermore, the master, the

crew and the officers of the ship have to respect the

law of the country of the ship register and it can be

added that the law of ship’s register is applicable to

all person on board a ship, such as passengers

(Hosanee, 2009). In par. 3 of the article there are

mentioned, not restrictively but inter alia the

measures that the flag state should take necessarily to

ensure the safety at sea concerning the construction,

equipment and seaworthiness of ships, the manning

of ships, labour conditions and the training of crews,

taking into account the applicable international

instruments, the use of signals, the maintenance of

communications and the prevention of collisions. The

seaworthiness as it is prescribed in par. 3 is

supplemented by article 219 which concerns vessels’

obligation to be in seaworthy condition in order to

avoid marine pollution. In par. 4 it is prescribed that

each ship, before registration and thereafter at

appropriate intervals, is surveyed by a qualified

surveyor of ships for the safe navigation of ship. Also,

flag state’s measures shall ensure that the

qualifications of the master and the crew are

appropriate and that these persons are fully

conversant with and required to observe the

applicable international regulations concerning the

safety of life at sea, the prevention of collisions, the

prevention, reduction and control of marine pollution,

and the maintenance of communications by radio. Par.

5 addresses the obligation of the flag state to take any

possible steps in order to ensure the observance of the

ship. The flag state must take all the measures in order

to conform to generally accepted regulations,

965

practices and procedures relating to the safety of life

at sea, the prevention of collisions and marine

pollution and the maintenance of radio

communications. According to par. 6 a flag state must

take all the necessary remedies when a state has clear

grounds to believe that proper jurisdiction and

control with respect to a ship have not been exercised

and reported the facts. In other words, par. 6

supplements par. 1 because it sets the obligation of the

flag state to exercise its jurisdiction and control over

ships flying its flag (Hosanee, 2009). Finally, in par. 7

is stressed the duty of the flag state to set an enquiry

when a marine casualty or incident of navigation

happens to a ship flying its flag on high seas. Τhis

paragraph mainly cultivates the idea of cooperation

between nations in order to clarify incidents which are

taking place on high seas. In this vein, IMO

encouraged cooperation and recognition of mutual

interests of states in marine casualties and incidents’

investigation through resolutions and conventions.

3 THE EMPOWERMENT OF PORT STATE

CONTROL

The flag state control on vessels that are registered on

the national register is an inevitable duty of the flag

state (Brownlie, 1998). Nevertheless, many flag states

are not able or they are reluctant to practice controls

on their ships or there is a serious failure on the part

of many flag states to implement and enforce

international standards. Whereas, henceforth the

global community tried to find out a more effective

way of controls on ships regarding maritime safety,

the protection of maritime environment and the

respect of decent shipboard living and working

conditions, as it is clearly stated in the Directive

95/21/EC. As it was clearly said by scholars, the first

line of defense of eliminating substandard vessels is

the flag state and the second line is the PSC (Knapp, S.

and Franses, P.H., 2007). However, as it will be

analyzed below, it is evident that there is need for PSC

inspections to improve the inspection efficiency and

accuracy. PSC is becoming the essential and

appropriate guardian of maritime safety. Last but not

least, the digitalization of PSC was found in the

agenda of international organizations and flag states

far before the appearance of the pandemic

phenomenon of COVID-19. However, although it

started as an urgent necessity in this period of time, it

is going to stay in maritime industry.

3.1 A General Approach Of Port State Control

In 1982 fourteen European states conceived the first

regional agreement on inspections system with Paris

Memorandum of Understanding on PSC (Paris MOU)

in order to stem the proliferation of substandard

vessels across European waters (Graziano, 2018). It is

also to be noted that Paris MOU in which 27

participating maritime authorities agree to implement

a harmonized system of PSC.

Since the Hague Memorandum in 1978, PSC is the

basic global strategy for fighting substandard

shipping. Furthermore it improved the coordinated

ship safety inspections regarding safety of ships and

the crew and the protection of maritime environment

and living and working conditions. The evident role

of PSC was that many flag states couldn’t fulfill their

obligation on their vessels (Ozçayir, 2004, 2009;

Anderson, 2002). In Europe, it seems to be the most

efficient and reliable regional agreement, although

there are a lot of differences at the inspector and

member state level.

At European level, relevant Directives aimed to

help drastically to reduce substandard vessels in the

waters of jurisdiction of member states. The European

Directives aimed at ensuring a harmonized approach

to the effective enforcement of international standards

by member states when performing control to all the

ships calling at their ports. In that respect, Directive

1995/21/EC stressed the increasing compliance with

international and relevant community legislation on

maritime safety, protection of the marine environment

and living and working conditions on board a ship of

all flags. Moreover, it focuses on establishing common

criteria for control of ships by the Port State and

harmonizing the procedures of detention and

inspection taking into account Paris MOU. This

Directive has been replaced by the Directive

2009/16/EC (article 1) as amended by the Directive

2013/38/EU. More precisely, Directive 2009/16/EC

introduces the SafeseaNet inspection database as it is

described by Directive 2002/59/EC. Moreover,

Directive 2009/16/EC and Directive 2013/38/EU

improved the first Directive in general and especially

Directive 2013/38/EU enforced the application of the

Maritime Labour Convention 2006 (MLC 2006) during

PSC procedure.

Moreover, it is also to be noted that IMO’s

initiative enforced the contribution of regional co-

operations. Many of the IMO’s conventions contain

provisions for ships to be inspected when they

approach foreign ports in order to ensure that they

comply with IMO requirements. With the Resolution

A.682(17) the Organization promoted regional co-

operations in the control of ships in order to render

the inspections more coordinated and effective. The

initiative of IMO concluded to 9 regional MOUs on

PSC that have been signed. These MOUs are: Europe

and the north Atlantic (Paris MoU); Asia and the

Pacific (Tokyo MoU); Latin America (Acuerdo de

Viña del Mar); Caribbean (Caribbean MoU); West and

Central Africa (Abuja MoU); the Black Sea region

(Black Sea MoU); the Mediterranean (Mediterranean

MoU); the Indian Ocean (Indian Ocean MoU); and the

Riyadh MoU. The United States Coast Guard maintain

the tenth PSC regime.

4 THE REMOTE PSC AS A SOLUTION

It seems that a new era of challenges has started. In

the shadow of the last pandemic, such as the long

period of COVID-19, a new model of flag states’

inspections was formed on ships in order to control

ships’ safety (for example, Liberia exercised distant

inspections). It can be said that the distant controls

will overwhelm the difficulties of inspections with

physical presence, however careful steps must be

taken in order facilitate and ameliorate these controls.

In this vein, it will be described below why the

966

digitalization of our era could be useful in inspections

through PSC.

4.1 The Problems Of The Port State Control That Create

The Necessity For Remote Inspections

The port state control does not appear any

genuineness of a link between the flag state and the

vessel. Instead, it is practiced by port states to any

vessel that enter them no matter of their flag. In other

words, PSC is the international regime of inspection

of foreign ships that enter the port state and aims to

ensure that the inspected vessels are compliant with

international conventions. Its success is found upon

its distinction from the patchy implementation of flag

state control as it is regulated by international

conventions and guidelines (Gauci, 2017). The

deficiencies of the way that inspections are conducted

have raised complaints from the part of ship owners

as they were represented in Intertanko and ICS

(Knudsen and Hassler, 2010). Although the MOU

1982 has set the harmonization of standards on the

inspection of vessels within the region where MOU

was established this goal faced several problems. The

main reason of developing PSC was the need about

sharing information on safety records of vessels and

to avoid the inspection of a vessel at every port within

a region. However, these harmonized rules didn’t face

the same practice as the discrepancies in every state

could affect the performance of the controls (Ozçayir,

2004, 2009). Also, insufficient funds for the exercise of

PSC and lack of appropriate personnel should be

taken into account, for example in some states

inspections are subject to budgetary restraints.

Moreover, inspections are exercised by national

inspectors who are supposed to be qualified

according to international standards. However, in EU

level, for example the problem of different inspection

approaches is evident within each member state

creating a substantial heterogeneity even between

ports of the same country (Graziano, 2008). Although

international standards are setting the qualification of

inspectors, differences among MOU states concerning

inspectors’ knowledge, have raised doubts

encompassing the PSC system as a whole (Graziano,

2008). Moreover, a set of skills is necessary by the part

of inspectors and the crew. This does not mean that

the crew must be qualified in order to exercise a

control but only to be qualified in a manner that can

ameliorate the control and state any false evaluation

during the control. Despite the fact that important

steps have been made to this direction maritime

companies do not qualify appropriately their crews

and as a result inspectors’ qualifications show

deficiencies. Another issue of PSC is that the number

of inspectors has been strongly connected with the

decision of the inspectors to detain a ship (Graziano,

2007). As a consequence, the inspections that are

controlled by shore and by digital systems, provide a

safe decision regarding to the detention of ships.

Furthermore, some PSC are dangerous and for this

reason are exercised in deficient way or are not able to

be exercised at all. In line with this, remote PSC could

be a safer manner of practicing controls in a safer

environment. The subjectivity of the inspectors and

their different level of education still create problems

at the result of the inspections.

4.2 Thoughts On The Advantages And The Challenges Of

The Remote PSC

In the modern era of digitalization remote inspections

are exercised in all the kinds of controls and

inspections on ships, by classification societies,

maritime companies, flag states (such as Liberia) and

by port states. However, careful steps should be taken

in order to strengthen inspections and transfigure the

disadvantages of the on-site inspections with physical

appearance of inspectors to advantages of remote

inspections. At this point, it is essential to be noted

that the IMO tried first through the code International

Safety Management Code for the safe Operation of

Ships and for Pollution Prevention (“ISM Code”) to

ensure maritime safety and security by creating

special obligations to shipping companies. The Safety

Management System (“SMS”) which is part of ISM

Code, consists a system ensuring the maritime safety

on board a ship and it is installed by the company

providing shore-based support. Also, it creates direct

responsibility on shore side management. However,

although maritime safety is ensured within the

framework of the shipping company that operates the

vessels, it is important to study further than the

distant and shore-based control and support from the

company, and focus on more objective inspections

that are exercised by the port state.

Firstly, it is necessary to be stressed that in the case

of remote PSC new operational functions will be

possible, such as the web-based video communication

that offers the ability to liaise the inspector with the

ship’s crew. Moreover, the remote PSC surveys can

minimize the subjectivity of the inspections’ surveys,

provided that the surveys are transparent and liable to

be reviewed from the ship owner, the crew, the flag

state and the classification society. As a consequence,

all the mentioned participating parties could

participate in the procedure, answer immediately to

any question of the inspector or correct directly any

deficiency that will be probably found on the vessel.

This participation could ensure the transparency of

the procedure, offer a more simple and

comprehensive way of exercising the PSC and lead to

more safe and accurate conclusions. However, it

should be underlined that there is a need for a

regulatory framework for remote controls with the

initiative of international organizations and the

participation of port states and flag states. Moreover,

it could be discussed whether robots could exercise

the inspections instead of humans. In this case, it

could be supported that artificial intelligence and

appropriate software could take the place of human

competences and conception. Nevertheless, the

replacement of inspectors with robots must be done

carefully and be scheduled in a way that software

takes into account different circumstances that are

happening on board a ship. Furthermore, a

comprehensive remote inspection PSC checklist and

procedure should be planned by port states in order

to ensure the framework of the procedures of PSC.

Furthermore, measures of digital secure also must

be taken so that the risk assessment in PSC will be

967

minimized. In this context, databases of PSC could be

easily used during the inspections so that the risk

assessment from the part of the inspector will be

minimized. The white list has also set a global

instrument of information regarding the application

of international conventions concerning maritime

safety, decent living and working conditions on board

a ship and the protection of maritime environment.

Hence, it could be said that in the case of a remote

PSC it will be easier to have access in the inspection

database, such as the SafeseaNet or the

white/grey/black list which is published in the Paris

MOU annual report and exercise the inspection at the

same time of regarding at the information provided

by these lists.

Finally, in remote PSC the deficiencies of the

inspections could be easily detected as far as all the

information of an inspection can be controlled at the

real time of the inspection. In this vein, it could be

stressed that probable deficiencies of the inspections

could be corrected at the real time of the inspection.

Moreover, with distant inspections it is easy to

construct combined databases that will lead to the

harmonization of the PSC authorities’ databases.

Nevertheless, despite the advantages of remote PSC,

the international maritime community should focus

on maintaining some advantages of PSC with physical

presence such as the consultative role of the inspector

during the inspection.

5 CONCLUSION

The control of the ships is firstly a duty of the flag

state. However, PSC seems to be the solution to the

ambivalent surveys and ensure maritime safety.

Despite the fact that there are many deficiencies in the

PSC procedure such as the lack of uniform application

of inspection standards, lack of appropriate

personnel, problems due to subjective opinion of PSC

officers in case of vessel detention, differences in

training of inspectors, asymmetrical inspecting

behavior, motivated the international shipping

community to look for effective efforts in order to

correct the deficiencies of PSC. Recently, urgent

situations such as COVID-19 imposed the necessity of

remote controls at the level of classification societies’

control and flag states’ control. In this vein, it could be

sustained that the key to the PSC fulfillment is the

application of modern technologies on PSC

procedures. For this reason, international maritime

community should enhance the ways of practicing

PSC by distance and with the help of digitalization.

For this purpose, the relevant international

organizations and all the parties of shipping industry

should attempt to regulate the remote PSC procedures

at international level. For example, it could be

supported that the participation of more parties could

ensure the objectivity of controls and better results on

maritime safety because multidisciplinary teams that

exercise the PSC can lead to more structured

inspection procedures.

From one side it seems that the deficiencies in PSC

procedures overwhelm the aims of this international

regime, and from the other side it appears that the

regression in control procedures is a part of the past

and that new technologies and computing will

demand its place in the inspections’ procedure. It

could be noted that the era of smart ships and smart

ports is demanding for “smart controls” too. Above

all, it must be noted that remote PSC became a

necessity and the shipping world cannot ignore it but

focus on the better way of exercising these controls

under an internationally accepted legal framework

that will be based on the experience of the past and

the challenges of the future.

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