7 th PAPC CONFERENCE

DJIBOUTI
PORT SECURITY - THE
ISPS CODE
Nancy Karigithu: DG, Kenya Maritime Authority
16/12/08

Background
Ports
Ports provide major national interface between a country and the
outside world.
A vital element in the national economy.
Ports operate within a legal framework
- national maritime policy
- foundation upon which the State addresses matters
maritime safety, security, pollution control and
of the marine environment.
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of
protection
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Background
Two main areas of maritime policy for the Governments
concerns:

(a) Safety, security and the marine environment .

These areas are best suited to international agreement in order to

obtain a level of uniformity.
b) Commercial issues.
A port is a major national interface between a country and the
outside world and as such it is a vital element in the national
economy.
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Regulation
Scope
issues of maritime safety and security;
legal liability for maritime claims;
protection of the marine environment;
facilitation of trade; and
the control of maritime commerce itself.
List is not exhaustive: A common clause in IMO conventions;
all matters which are not expressly provided for in the
present convention remain subject to the legislation of the
contracting
Governments.
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International Basis for Regulation

a) The United Nations (UN)
United Nations Convention on the Law of the Sea
(UNCLOS)
1982
UNCLOS defines the rights and obligations of States with
regard to ships in various maritime zones; ports and inland
waters, territorial waters, straits, exclusive economic zones
and the high seas.
Lays the basis and foundation for coastal, port and flag state
control over ships.
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Port Security Generally

Ports attract industries, tourists and other
undesirable elements
Variety of unlawful acts - ranging from
criminal acts like robbery against ships,
passengers and crew, theft of cargo, to
purposed political acts or terrorist outrages
such as hostage taking, piracy, stowaways.
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Port Security
The IMO International Ship and Port Facility Security
Code (ISPS Code)
Applies to:
Port facilities serving cargo ships including high
speed craft of 500 gross tonnage and above;
Mobile off shore drilling units and such ships
engaged on international voyages.
Duty of Government to determine that port facilities in
its territory Comply with the Code
Port include any place where the ship/port Interface
takes place, including areas such as anchorages,
waiting berths and approaches from seaward, as
appropriate
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Port Security
Requirement for Ports

Appoint PFSO
Undertake PFSA, draw PFSP for various security
levels
Requirements for Governments
Ensure Ports comply
-undertake review of measures in place

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Port Security - Legal Framework

The effective implementation of the ISPS code depends as
much on the operational tasks as in the legal framework
laid down. As a minimum the following should be in law;
an obligation on the Port to take all measures necessary
to prevent unlawful acts against vessels, persons and
property within the area of the ports jurisdiction;
powers of the port to take appropriate measures to
discharge its obligations and the provision of
appropriate personnel for the prevention and detection
of various forms of unlawful activity in the port area;

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Port Security Legal

Framework

-Does the Port have to establish its own special police
force with full law enforcement powers or, alternatively,
the obligation to cooperate with and facilitate the
performance of security functions by the national
security agencies and other law enforcement officers,
with clear provisions on the rights and obligations of the
port vis a vis such agencies;

-Does the Port have power to establish regulations and
procedures for port security and arrangements for
ensuring the effective implementation of these
procedures including the establishment of safety and
security drills and other procedures required by law or
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guidelines;

Port Security Legal

Framework

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- does the port have powers to arrest and detain vessels

and persons attempting to commit offences as defined
by national law or applicable international agreements,
and to submit such persons to the jurisdiction of the
relevant law of enforcement of judicial authorities?
-where the port State is a party to SUA Convention the
law should grant the necessary jurisdiction to the
courts to deal with persons who commit unlawful acts,
even if such acts were committed outside the territorial
jurisdiction of the courts, such jurisdiction will apply
only if the State has jurisdiction under the terms of the
convention;

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Port Security Legal

Framework
-are there penalties for failing to comply with any
regulations made by the port or other persons duly
authorized by law to make such regulations? finally
- what about liabilities of the port for damage or loss or
resulting from such acts done or directions given which
turn out to be unreasonable or improper, including any
exemptions or exclusions from liability, as may be
deemed appropriate?

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Matters not covered by the Code

The ISPS Code is not a panacea - does not deal with all
aspects of ships and port security:
security of ships and facilities not covered under the
Code; and
the security of the cargo/ supply chain.

Whilst it is the duty of the Government to provide for these

matters port authorities must take a proactive role in this
regard because of the potential for contamination and
compromise to their own security arrangements under the
ISPS Code.

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CONTAINER SECURITY
To ensure complete maritime security, port authorities must
address themselves to the weak links of the container
transport chain. The security of a laden container is only as
good as the procedures in place at locations it passes
through.
As gatekeeper to the freight transport market via their
regulatory and licensing oversight, they should therefore
introduce security criteria in the licensing process of
vehicles, operators, personnel and facilities and monitor
whether licensees continue to meet these security
requirements.
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Communicate to Customs information regarding operators

CONTAINER SECURITY
Screen employees according to security criteria; also check
worker identification with other operators in accordance
with national laws and develop protocols regarding access
to containers by high security-risk workers.
Confirm that operators given licences and permits are bona
fide operators without criminal records pertinent to
vehicle/freight crime.
Maintain information on persistent offenders and withdraw
licences or refuse to grant permits to them

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CONTAINER SECURITY
- Provide information and advice to operators on theft
avoidance, safe practices, recommended routes, protected
parking areas and appropriate precautions.
- Encourage the setting up of secure and safe parking areas
and freight traffic centres for trucks and loads (containers,
trailers etc).
Standards of protection for such areas must be defined to
commonly agreed levels or criteria.

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CONTAINER SECURITY

Addressing the security of the container transport chain requires a

comprehensive inter-modal framework integrating measures across the
entire container transport chain.

The WCO ( cradle-to-grave container stuffing and seal

management guidelines) signatory to WCO container initiatives;
-"Framework of Standards to Secure and Facilitate Global
Trade"

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IMO/ILO CODE OF PRACTICE ON

PORT SECURITY
The 2002 security conference also invited IMO and the ILO to establish a
joint Working Group to undertake more detailed work on comprehensive
port security requirements.
Code of Practice on Security in Ports:
extends the consideration of port security beyond the area of the port
facility into the whole port; and
applies security guidelines to all areas and functions of the port, and
those working in, having business with and requiring access to the port or
transiting through the port; i.e. port workers and other port personnel,
seafarers, passengers and passengers baggage, cargo, material and stores,
vehicles and equipment originating from within and outside the port area.
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Complementary Legislation

The Convention for the Suppression of

unlawful Acts against the Safety of
Maritime Navigation (SUA) 1988. It was
intended to improve measures for dealing
with incidents such as terrorists attacks on
commercial shipping. It entered into force in
March 1992.
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Commercial and Insurance

Implications
Non-compliance
Port operators who are non-compliant may face claims from ship operators who
suffer losses as a result of such non-compliance. A ship can be delayed due to
alleged non-compliance with the ISPS Code for a variety of reasons and for
failures on the part of a variety of persons.
Section 14.1 of Part A of the ISPS Code provides that Security

measures and procedures shall be applied at the port

facility in such a manner as to cause a minimum of
interference with, or delay to, passengers, ship, ships
personnel and visitors, goods and services.
A delicate balance
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Contracts of Carriage & ISPS

Code
Maritime contracts for the carriage of goods by sea
accurately document the rights and duties of each party including clearly defining owners and chatterers duties
under the ISPS Code as well as the fair apportionment of
costs.

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Contracts of Carriage & ISPS

Code

ISPS clause all delays, costs and expenses which result from the
ship not being ISPS compliant will be for the owners account, whereas
delays, costs and expenses which result from the port facility not being
ISPS compliant will be for the chatterers account, unless caused by the
owners negligence
All foreseeable costs are covered by the clause: delays, costs &
expenses imposed by a Port Authority under the Code are for the
Chatterers account. The costs of preparing and complying with
the Ship Security Plan are for owners account. The question that
arises is who pays for non-compliant ports?

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Insurance

Marine insurance: breach of an express warranty, such as a failure to

comply with national or international regulations for example, could be
a reason for an insurer to reject a claim that has resulted directly from a
failure to comply with the ISPS Code

unsafe ports clause may impact on the ships calling at

the next port after visiting a port facility that is not
compliant.
The declaration that a ship is unsafe for having come from
an un-compliant port may lead to the no-compliant ship
losing its insurance cover and exposure to third party
claims.
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Insurance
Failure for a port to be compliant may constitute prima
facie proof of negligence and a chatterer may have the
recourse to sue the port for negligence.
The presence of stowaways on a ship could also be proof of
something seriously wrong with security in the port of
origin and thus conclusive proof of negligence.

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Conclusion
Port authorities must acknowledge and observe
international maritime transport conventions.
Port authorities ensure that to the best of their abilities that
real compliance with the ISPS code, rather than superficial
paper compliance, is achieved.

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Conclusion
Ensure that many of the basic provisions of the ISPS extend
to those vessels and ports not covered by the ISPS
They must lobby Governments to ensure that the law keeps
up to date with the international requirements that have a
bearing on port and cargo operations.

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ANY
QUESTIONS

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