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).
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:
Some of the flag state responsibilities, which they may delegate to the ROs are as follows:
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.
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.
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:
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:
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.
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.
Some of the major causes or reasons for the detention of the authorized ROs are as follow:
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:
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.
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).
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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