Ship security requirements
Friday 27 June 2008
The US Coast Guard recently imposed new conditions of entry on ships calling on the United States after port calls in Cuba, Iran, or other ports that it has determined do not maintain effective maritime security/anti-terrorism measures. These conditions will have a particular impact on ships engaged in authorised: (1) transportation of licensed medicine, medical supplies, food, and agricultural commodities to countries subject to US trade embargoes; or (2) responses to ship casualties in the waters of such countries.
Background and Implications
The Maritime Transportation Security Act of 2002 (MTSA) authorised the Secretary of the Department of Homeland Security to impose conditions of entry on ships requesting entry into the United States arriving from ports that are not maintaining effective anti-terrorism measures. The Secretary then delegated this authority to the Coast Guard. Cuban ports are the most recent addition to the list of ports that the Coast Guard believes maintain insufficient maritime security or anti-terrorism measures. The Coast Guard has identified ports in the following countries as not maintaining effective antiterrorism measures:
- Cuba
- Cameroon (with certain exceptions)
- Equatorial Guinea (with certain exceptions)
- Guinea-Bissau
- Indonesia (with certain exceptions)
- Iran
- Liberia (except the Firestone Facility)
- Mauritania (except Chinguetti Terminal)
- Syria
The conditions of entry for ships calling on these ports, in general, require that any ship calling on the United States after visiting such ports during its last five port calls must:
- implement certain measures under the ship’s security plan required by MTSA and the International Ship and Port Facility Security (ISPS) Code (equivalent to Maritime Security Level 2) while in one of these ports
- ensure that each access point to the ship is guarded and that the guards have total visibility of the exterior (both landside and waterside) of the ship while the ship is in such ports (although guards may be provided by the ship’s crew, in some instances additional crewmembers or an outside security force may be required to ensure that limits on maximum hours of work/minimum hours of rest are honoured)
- attempt to execute a Declaration of Security pursuant to the ISPS Code while in such ports
- log all security actions in the ship’s log
- report actions taken to the cognizant Coast Guard Captain of the Port prior to arrival in US waters (this could be done in the ship’s advance notice of arrival)
- ensure, while in US ports, that each access point to the ship is guarded by armed, private security guards (in a number acceptable to the Captain of the Port) who have total visibility of the exterior (both landside and waterside) of the ship.
Recent Port Security Advisories issued by the Coast Guard indicate that the Coast Guard will board any vessel entering US waters at sea if it recently visited one of the targeted ports (other than Monrovia, Liberia in certain circumstances) to ensure that the ship undertook the required security measures. If the Coast Guard determines that the ship failed to properly implement the measures required to be taken while in the targeted port (i.e., the first five measures listed above), then the ship may be denied entry into the United States. For those ship that can demonstrate and document the required security compliance while in the targeted port, the Coast Guard may waive the requirement for armed security while in US ports. Regardless, however, boardings at sea are likely to cause ship delays that may have been unanticipated. One impact of the new Coast Guard requirements will be increased security costs and delays for ships returning to or entering the United States after engaging in transportation of authorised exports of medicine, medical supplies, food and agricultural commodities to countries such as Cuba, Iran and Syria that are otherwise subject to US trade embargoes. US persons and ships engaging in such trade must be licensed by the Office of Foreign Assets Control (OFAC) and the Bureau of Industry and Security (BIS), and in certain circumstances foreign-flag vessels also must obtain such licenses. Ships engaged in licensed emergency towage and salvage operations or other authorised casualty response in these countries likewise will be affected by the new Coast Guard requirements, which apply in addition to existing Coast Guard permit requirements for US-flag ships, and ships without nationality, less than 100 meters in length, located within US territorial waters and intending to engage in such activities in Cuban waters.
Conclusions and Recommendations
Owners and operators of ships trading into the United States must be aware of these security measures and take the appropriate actions identified in this advisory to ensure that their ships avoid unnecessary delays and expenses. Owners and operators seeking BIS or OFAC authorisation for transportation transactions involving US embargoed countries subject to the new Coast Guard requirements should understand that the BIS and OFAC licenses are required in addition to, and do not constitute a waiver of, any applicable Coast Guard security and permit requirements.
Source of information: |
Blank Rome LLP
Maritime Developments Advisory No. 15 issued June 2008
www.blankrome.com |
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