22 September 2005

The Impact of ISPS Code on Seafarers

by Douglas B. Stevenson, Esq., Director, SCI’s Center for Seafarers’ Rights and presented by Mrs. Maggie Whittingham-Lamont

I appreciate the opportunity to provide comments on the impact of the ISPS Code on seafarers. I am grateful to Mrs. Maggie Whittingham-Lamont’s for her willingness to present this paper in my absence.

My topic is the impact of the ISPS Code on seafarers. I will preface my observations on how the Code has affected seafarers by examining how seafarers are treated by the Code.

As we all know, the International Ship and Port Security Code was created by the International Maritime Organization in response to the September 11, 2001 attacks on the United States of America. Its provisions are very similar to American regulatory requirements implementing the United States’ Maritime Transportation Security Act. The ISPS was very quickly developed after September 11, 2001. When the ISPS was under consideration, expert advice was assembled from both maritime and non-maritime sources. The maritime and non-maritime security concerns were very different in their philosophy regarding ships’ crews.

Although this is a broad generalization that doesn’t apply to all cases, the shore based security interests looked upon seafarers with suspicion. From ashore, seafarers are unknowns. They are strangers. The best way to ensure security is to contain them on their ships. Keep them away from dangerous or sensitive areas. Since you can’t control them off the ship, keep them on the ship. In other words, because you don’t know who they are, they could be dangerous. This view was bolstered by the reality that many shipowners themselves could not vouch for their crews. After years of employing crews through manning agencies and operating their ships through ship management companies, many shipowners’ connections with their crews were quite attenuated.

From a narrow, and shortsighted perspective, this approach of treating the seafarer strangers in our midst as if they were potential terrorists or at least security risks, has some merit. There are also some disadvantages. The costs of hiring security personnel to keep an eye on visiting ships’ crews and ensuring that they remain on board their vessels would be very high. There is no intelligence data that supports the notion that ships’ crews are terrorist or security risks, thereby putting into question the need to guard them. Treating seafarers like suspects effectively deters them from cooperating with authorities or reporting suspicious activity, and it devastates crew morale. Such a shore-based approach does not take into account centuries of maritime law, tradition and practice that ships’ crews are expected to protect their ships and cargos.

Fortunately, maritime security interests prevailed in shaping the ISPS philosophy regarding ships’ crews. Whatever shortsighted shore-based security interests policies might have added to security, they were far outweighed by their disadvantages. The most significant disadvantage is that discouraging seafarers from taking an active role in maritime security seriously reduces security. Security increases when ships crew’s are perceived as security assets rather than liabilities.

The ISPS takes into account the reality of seafaring, that seafarers have traditional roles and duties to protect maritime property. The maritime industry simply cannot afford to hire a policeman (or policewoman) to watch every seafarer. Rather, the concept of “domain awareness” is fundamental to protecting security. In simple terms, domain awareness means: know your environment; recognize suspicious activity and report suspicious activity to the authorities. You might also call this policy “responsible, caring neighbors”. Good neighbors keep an eye on their neighborhoods, and when they see suspicious activity that could be a threat to their neighborhood, they call the police.

The ISPS relies on ships’ crews to be good neighbors in protecting the maritime community from terrorism. Their ability to observe unusual activity onboard their vessel and its surrounding areas is a key element in saving lives and preventing damage and destruction. The ISPS recognizes seafarers’ essential security role by giving them many new responsibilities. Seafarers’ security responsibilities vary from ship to ship and from port to port depending upon the ship’s and port’s particular threat assessment. Security measures also depend upon the designated security level (from normal Security Level One to high Security Level Three) established by the ISPS. At all levels of security, seafarers are required to monitor their ship and surrounding areas and to report dangerous and suspicious activities.

The ISPS recognizes seafarers’ unique role in combating terror. The ISPS also confirms seafarers’ fundamental right to shore leave[i]. An important aspect of the ISPS, which was influenced by port chaplains, is its requirement that shore facility security plans must include provisions for seafarers’ movement through the facilities for shore leave and chaplains’ and unions’ access to vessels[ii]. The ISPS recognizes that security is enhanced when seafarers are perceived as responsible, caring neighbors rather than as suspects in their shared maritime community. Seafarers’ vigilance in noticing and reporting suspicious activities will undoubtedly save lives, as well as enhance a spirit of cooperation between seafarers and port security personnel.

The ISPS policy of balancing security needs with human rights and the requirement to maintain ships’ safety and working efficiency by allowing crew shore leave and access to ship support services was emphasized by the International Maritime Organization in its MSC Circular 1112[iii].

ISPS implementation began long before the Code became mandatory on 1 July 2004. The adjustments required of both regulators and the regulated by imposing a security culture on top of a safety culture was immense. As with any new regime that requires humans to change their routines, there were some bumps on the road to full ISPS implementation. When egos and authorities clash there are going to be issues. Some of the episodes were widely reported in the press. Many of the problems, such as requiring authorities to show their credentials to ship security officers, have been resolved. Others, such as crew leaving their ship in violation of immigration laws, remain issues.

Since September 11, 2001 the Center for Seafarers’ Rights (CSR) has monitored security requirements’ effects on mariners. In an attempt to quantify the effects of ISPS on seafarers before and after the Code’s effective date, the Center for Seafarers’ Rights conducted nation-wide surveys of shore leave detentions and chaplains access to ships in United States ports in February 2003, October 2003 and July 2004. In May 2005, the Center conducted a similar survey that included Canadian ports. No Canadian ports reported any problems with shore leave denials or chaplains’ access.

The surveys focused on seafarers’ denial of shore leave and chaplains’ access to vessels because these were the two biggest negative effects of post 9-11 security measures observed by CSR and port chaplains. The U.S. Coast Guard asked the CSR to document these issues in the course of its public hearings on developing post 9-11 maritime security regulations.

The February 2003 and October 2003 surveys were consistent with the data that CSR had already accumulated; that seafarers were denied shore leave in the United States for two reasons:

1. Foreign seafarers who did not possess a crewmember D-1 visa were not allowed shore leave by immigration authorities; and

2. All seafarers, foreign and American, were denied shore leave by private terminal operators irrespective of the seafarers’ immigration status. These private terminal restrictions were typically imposed at petroleum terminals.

The July 2004 and May 2005 surveys showed one positive effect of the ISPS. There were many fewer reported instances of private terminal operators denying shore leave. In the previous two surveys, private terminal operators denial of shore leave to ships’ crews served as one of the most common causes for crew detentions. Lack of crewmember visas provided the other most frequent reason. Only Boston and Philadelphia reported difficulties with private terminal operators denying shore leave to ships’ crews.

Chaplains did not report any instances denial of access to vessels through private terminals, although in some ports, chaplains experience difficulties in being allowed to board cruise vessels. Most private terminals in the United States appear to have implemented the ISPS requirement that facility security plans must contain procedures for facilitating shore leave as well as access to ships by representatives of seafarers’ welfare organizations.

The United States Coast Guard and the Seamen’s Church Institute are cooperating to identify ISPS/MTSA related shore leave and terminal access problems and to seek solutions to them. Early in 2002, RADM Larry Hereth initiated the dialogue with SCI to ensure that seafarers’ concerns were addressed. RADM Craig Bone, who replaced RADM Hereth as the Coast Guard’s Director of Port Security has continued this useful dialogue. The Coast Guard has been very responsive to seafarers’ concerns both in developing and implementing the regulations requiring port facility security plans to address shore leave and visitors’ access.

There are a handful of the 3,000 private terminals in the United States that are still causing problems. Typically these problems involve terminals that follow the word of the ISPS, but not the spirit. For example, a private terminal will have provisions in its facility security plan providing for crew shore leave and chaplains’ access to ships in the terminal, but it will require them to use only the terminal’s security service and charge a prohibitively high fee. The effect is that seafarers and chaplains cannot afford the fee.

The remaining reason why mariners are denied shore leave in the United States is their failure to have a crewmember D-1 visa. This reason existed long before September 11, 2002. United States immigration law requires all crewmembers, both ships’ crews and commercial aircraft crews to possess a crewmember D-1 visa as a condition of applying for shore leave. This visa requirement, that is contrary to customary maritime practice and the Convention on the Facilitation of Maritime Traffic, has been a feature of American immigration law since 1952. Since September 11, 2001, however, American immigration laws have been more stringently enforced and waivers have been rare.

In addition to monitoring shore leave and chaplains’ access in the United States, the CSR is monitoring, on behalf of the International Christian Maritime Association, problems with ISPS implementation from port chaplains’ perspective, worldwide. There have been few reported problems. Examples of some of the specific problems reported include:

• The old Port of Recife, Brazil, handling mostly general cargo and bulk cargo vessels, did not allow chaplains access through the port or allow seafarers’ to walk 50 meters from their ships to the terminal gate, citing ISPS requirements. Ironically, the modern port of Suape, just outside of Recife, which handles container ships, tankers and LNG carriers encourages chaplains to visit ships in its terminals and makes accommodations for seafarers’ shore leave through their terminals.
• Port chaplains in Manila, Philippines reported being refused access to vessels because of “security regulations”. They also report that security regulations are interpreted differently from port to port making ship visiting difficult and complicated.
• Some berths at Eastham Lock on the Manchester Ship Canal, UK are fenced off and locked, thereby preventing chaplains’ access to ships and seafarers’ access to shore.
• Chaplains in a number of ports have described tensions between ships’ crews attempting to enforce their ships’ security plans and port workers who don’t want to be bothered by them. Some examples are port workers demanding that secure areas of the ship remain unlocked (such as engine rooms) and port workers refusal to show identification and sign in and off the ship.

The ISPS has had a significant impact on seafarers and the ways they go about their work. They have new security duties. They have new training requirements. They have new controls on their movements. On a brighter note, I am pleased to report that restrictions on merchant mariners access to shore leave and welfare facilities have improved in some ports following the ISPS’s implementation. Many countries are taking seriously the principles contained in the ISPS and the International Maritime Organization’s MSC Circular 1112 that maritime security is enhanced when merchant mariners’ fundamental rights are protected.

From the data that we have collected at the CSR, the main sources of problems related to ISPS that affect seafarers could be summarized as follows:

• Transitional implementation difficulties in seafarers and regulators confronting changes. Such human traits as egos, personalities and authority often contributed to the problems.
• Lack of understanding the ISPS. Some difficulties arose from authorities misunderstanding the ISPS requirements.
• Costs. A major factor in ISPS implementation is related to the costs of implementation. For example, who is going to pay for providing seafarers and chaplains security escorts through sensitive terminals?
• Residual shore-based security trepidations restricting seafarers’ and chaplains’ movements.
• Rigid enforcement of port state immigration laws that restrict seafarers to their ships.

We can predict with some certainty that the ISPS and its maritime security measures are not going to go away, and that its enforcement will continue to have impacts on seafarers’ lives. Many of the problems related to implementing the ISPS will go away over time. However, some issues will recur and others need new solutions. Our challenge, and a challenge for the entire maritime community is to find reasonable measures that provide security for ships, their crews and ports without unreasonably burdening seafarers or restricting the flow of commerce. Some steps to that end include:

• Port chaplains should participate in port security committees. Port chaplains can provide port security committees invaluable insights into seafarers’ contributions to the port’s security and to the ports’ policies that might discourage seafarers from cooperating with security authorities. Port chaplains’ participation in the committees will also acquaint contingency planners with the vital resources chaplains can bring to a crisis situation.
• Countries should establish high-level lines of communication to respond to ISPS implementation problems affecting seafarers on their ships and in their ports such as the one established between the Seamen’s Church Institute of NY & NJ and the U.S. Coast Guard.
• Encourage all maritime nations, especially the United States, to ratify and implement the International Labour Organization’s Seafarers’ Identity Document Convention (ILO-185). Widespread ratification of ILO-185 would enhance security by requiring all seafarers to have positive identification that would establish that they are legitimate professional mariners and not others posing as mariners. Shore leave opportunities would be increased for mariners holding an ILO-185 seafarers’ identity document because the ILO-185 identity document would be a substitute for a visa.

Thank you for giving me the opportunity to address how the ISPS affects seafarers. I am sorry that I could not be with you today to respond to any questions or comments. I am happy to respond to any question or comment you might have by email or telephone. Finally, I am grateful to Ms. Maggie Whittingham-Lamont for filling in for me again this year.


[i] ISPS Code Preamble 11. “Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965, as amended, provides that foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order, Contracting Governments, when approving ship and port facility security plans, should pay due cognizance to the fact that ship’s personnel live and work on the vessel and need shore leave and access to shore-based seafarer welfare facilities, including medical care.”

[ii] ISPS Code Part A 16.3.15 Port facility security plans must address “procedures for facilitating shore leave for ship’s personnel or personnel changes, as well as access of visitors to the ship, including representatives of seafarers’ welfare and labour organizations.”

[iii] Ref.T2-NAVSEC/2.11 MSC/Circ.1112

7 June 2004

SHORE LEAVE AND ACCESS TO SHIPS UNDER THE ISPS CODE

[1] The Conference of Contracting Governments to the International Convention for the Safety of Lives at Sea (SOLAS), 1974 (London, 9 to 12 December 2002), adopted, inter alia, amendments to the Annex to the Convention, as amended, in particular new chapter XI-2 on Special measures to enhance maritime security and the new International Code for the Security of Ships and Port Facilities (ISPS Code).

[2] The Conference also adopted Conference resolution 11 on Human-element-related aspects and shore leave for seafarers which, inter alia, urged Contracting Governments to take the human element, the need to afford special protection to seafarers and the critical importance of shore leave into account when implementing the provisions of SOLAS chapter XI-2 and the ISPS Code.

[3] The Maritime Safety Committee, at its seventy-eighth session (12 to 21 May 2004), recognizing and considering the need for additional information to assist Contracting Governments and the industry to comply with the spirit of Conference resolution 7, while at the same time meeting their obligations under SOLAS chapter XI-2 and the ISPS Code, directed its Maritime Security Working Group to examine and provide additional guidance on specific aspects of shore leave and access to ships under the ISPS Code.

[4] The Guidance relating to shore leave and access to ships, as approved by the Committee, is given at annex.

[5] Member Governments and international organizations are invited to bring this circular to the attention of national Designated Authorities, Administrations, port facility security officers, maritime industry and all other parties concerned responsible for the implementation of maritime security measures.



SHORE LEAVE AND ACCESS TO SHIPS UNDER THE ISPS CODE

[1] The 2002 SOLAS Conference that adopted SOLAS chapter XI-2, the ISPS Code, and associated conference resolutions, was aware of potential human aspect problems affecting the fundamental human rights of seafarers with the imposition of a security regime on international shipping on a global basis. It was recognized that seafarers would have the primary duties and responsibilities for implementing the new security regime for ships. At the same time, there was concern that the emphasis on port facility security may result in the ship and seafarers being viewed as a potential threat to security rather than partners in the new security regime.

[2] In this regard, it was recognized that there may be conflicts between security and human rights, as well as between security and the efficient movement of ships and cargoes in international trade that is essential to the global economy. There must be a proper balance between the needs of security, the protection of the human rights of seafarers and port workers, and the requirement to maintain the safety and working efficiency of the ship by allowing access to ship support services such as the taking on of stores, repair and maintenance of essential equipment, and other vital activities that are appropriately undertaken while moored at port facilities.

[3] The 2002 SOLAS Conference incorporated the protection of the fundamental human rights of seafarers into SOLAS chapter XI-2 and the ISPS Code. The Preamble to the ISPS Code clearly states that the Code shall not be interpreted in a manner that is inconsistent with existing international instruments protecting the rights and freedoms of maritime and port workers. The Preamble also called to the attention of Contracting Governments that in approving security plans they should be aware of the need for seafarer's shore leave and access to shore-based welfare facilities and medical care.

[4] To address these concerns and principles, section A/16.3.15 of the ISPS Code provides that a port facility security plan (PFSP) must contain procedures for facilitating shore leave, crew changes and access for visitors including representatives of seafarers' welfare and labour organizations. This should be construed as including shore-based ship support personnel and the taking onboard of ship's stores. The guidance contained in paragraph B/16.8.14 of the ISPS Code reinforces this requirement by providing that the PFSP should contain such procedures relating to all security levels.

[5] In approving PFSPs, Contracting Governments must ensure that PFSPs address the procedures described in section A/I 6.3.15 of the ISPS Code, taking into account the guidance in paragraph B/16.8.14 of the ISPS Code.

[6] From a practical perspective, it is also important that port facilities seek a balance between the needs of security and the needs of the ship and its crew. A port facility operator should ensure co- ordination of shore leave for ship personnel or crew change-out, as well as access through the port facility for visitors to the ship, including representatives of seafarers' welfare and labour organizations and those concerned with the maintenance of ships' equipment and safe operation, with ship operators in advance of the ship's arrival. A singular focus on the security of the port facility is contrary to the letter and spirit of the ISPS Code and will have serious consequences for the international maritime transportation system that is a vital component of the global economy. It is further noted that the ILO/IMO Code of Practice for Port Security recommends that all port stakeholders work co-operatively to make such arrangements and advance plans.