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Legal Aspects of Port State Control

Kulchytskyy, Anton LU (2013) JASM01 20121
Department of Law
Abstract
Port state control plays a central role in maritime safety and protection of marine environment and it becomes more significant in protection of seafarers’ rights. This thesis integrates discussion and consideration of different legal aspect of PSC in order to present a comprehensive view on it. First, the legal foundation of port state jurisdiction is examined. It is explored through its elements where PSC is a considerable part. Provisions, instituting the international legal regime on PSC are looked in greater detail. The question, whether there is a right of merchant vessels to access foreign ports, is answered.
Second part of the thesis examines the international and regional PSC framework and its mechanism. The essence of guidelines... (More)
Port state control plays a central role in maritime safety and protection of marine environment and it becomes more significant in protection of seafarers’ rights. This thesis integrates discussion and consideration of different legal aspect of PSC in order to present a comprehensive view on it. First, the legal foundation of port state jurisdiction is examined. It is explored through its elements where PSC is a considerable part. Provisions, instituting the international legal regime on PSC are looked in greater detail. The question, whether there is a right of merchant vessels to access foreign ports, is answered.
Second part of the thesis examines the international and regional PSC framework and its mechanism. The essence of guidelines of the International Maritime Organisation on PSC and their comparison with the regional Memoranda of Understanding has been provided. The significant incorporation of the provisions of the IMO guidelines into the regional MoUs has been exhibited. Analysis and comparison of the regional MoUs among each other have been made, which indicate some degree of similarity among certain groups of the regional MoUs on one side and uniqueness of other MoUs on the other side. National legal arrangements of PSC has been shown on two different jurisdiction, namely UK and Ukraine.
Besides the side of public law, which PSC has arisen out of, PSC detention has legal implications for private law. Therefore, third part of the thesis discusses such issues as undue delay, effect of PSC detention on the contracts of affreightment and marine insurance, and allocation of the risk of PSC detention in time charter parties. PSC detention may cause damages or repudiation of the counterparty’s obligations in relation to contracts of affreightment and marine insurance. It also may trigger to go the vessel off-hire in time charterparties.
The last part of the thesis focuses on contemporary development on PSC. The need and possibility for establishment of universal PSC regimes are discussed. The main problems of current PSC regimes and obstacles in establishment of one global PSC regime are identified. Although it was concluded that for the moment universal PSC regimes is not possible, the contemporary development of cooperation among the regional MoUs and even with a private sector has been exposed. Interrelation between PSC and flag state implementation has been shown through the use of the PSC statistics in Voluntary IMO Member State Audit Scheme and, in its turn, the relevance VIMSAS for assessment of ship’s risk profile in Paris MoU. Distinctive features of PSC and flag state control are also explained. Taking into consideration that recognised organisations play a significant role for facilitation of shipping safety and protection of marine environment in general and PSC in particular, the possibility to reinforce the IMO regulation on ROs is discussed. The current regime on ROs has been examined, and effectiveness of ROs has been assessed with help of the PSC statistics. The thesis suggests an idea how to upgrade recently elaborated IMO code on ROs in order to strengthen the international regime on ROs. (Less)
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@misc{3800028,
  abstract     = {Port state control plays a central role in maritime safety and protection of marine environment and it becomes more significant in protection of seafarers’ rights. This thesis integrates discussion and consideration of different legal aspect of PSC in order to present a comprehensive view on it. First, the legal foundation of port state jurisdiction is examined. It is explored through its elements where PSC is a considerable part. Provisions, instituting the international legal regime on PSC are looked in greater detail. The question, whether there is a right of merchant vessels to access foreign ports, is answered.
Second part of the thesis examines the international and regional PSC framework and its mechanism. The essence of guidelines of the International Maritime Organisation on PSC and their comparison with the regional Memoranda of Understanding has been provided. The significant incorporation of the provisions of the IMO guidelines into the regional MoUs has been exhibited. Analysis and comparison of the regional MoUs among each other have been made, which indicate some degree of similarity among certain groups of the regional MoUs on one side and uniqueness of other MoUs on the other side. National legal arrangements of PSC has been shown on two different jurisdiction, namely UK and Ukraine.
Besides the side of public law, which PSC has arisen out of, PSC detention has legal implications for private law. Therefore, third part of the thesis discusses such issues as undue delay, effect of PSC detention on the contracts of affreightment and marine insurance, and allocation of the risk of PSC detention in time charter parties. PSC detention may cause damages or repudiation of the counterparty’s obligations in relation to contracts of affreightment and marine insurance. It also may trigger to go the vessel off-hire in time charterparties. 
The last part of the thesis focuses on contemporary development on PSC. The need and possibility for establishment of universal PSC regimes are discussed. The main problems of current PSC regimes and obstacles in establishment of one global PSC regime are identified. Although it was concluded that for the moment universal PSC regimes is not possible, the contemporary development of cooperation among the regional MoUs and even with a private sector has been exposed. Interrelation between PSC and flag state implementation has been shown through the use of the PSC statistics in Voluntary IMO Member State Audit Scheme and, in its turn, the relevance VIMSAS for assessment of ship’s risk profile in Paris MoU. Distinctive features of PSC and flag state control are also explained. Taking into consideration that recognised organisations play a significant role for facilitation of shipping safety and protection of marine environment in general and PSC in particular, the possibility to reinforce the IMO regulation on ROs is discussed. The current regime on ROs has been examined, and effectiveness of ROs has been assessed with help of the PSC statistics. The thesis suggests an idea how to upgrade recently elaborated IMO code on ROs in order to strengthen the international regime on ROs.},
  author       = {Kulchytskyy, Anton},
  keyword      = {contract of affreightment,flag state control,recognised organisations,flag state implementation,port access,ship’s nationality,port state jurisdiction,seafarers’ right,protection of marine environment,shipping safety,port state control,international law,Maritime law,marine insurance,undue detention,time charter parties,off-hire clause,UNCLOS,SOLAS,MARPOL,STCW,MLC},
  language     = {eng},
  note         = {Student Paper},
  title        = {Legal Aspects of Port State Control},
  year         = {2013},
}