FAQs for ISPS

Please also see the following web links for further information: - Maritime Security Main Page - Maritime Security Resources - Maritime Security Links

Q and A

1. Q: Should an owner obey a charterer's instructions to proceed to a port not ISPS certified?
   A: The owner may refuse an order to an unsafe port, but the question of whether a port is prospectively safe when the ship is ordered there (or is actually safe on her arrival there) is a matter of fact, and will not be determinable solely by reference to whether the port is ISPS certified.
   
   An owner whose ship is ordered to a port without ISPS certification therefore could not on that ground alone decline to proceed there, unless the charterparty specifically so provides. The owner in this position will have to make further enquiries locally and in the absence of evidence that the port is unsafe will have to proceed there, taking additional security precautions on arrival. Remember, too, that some States are still not parties to SOLAS and therefore would not operate the ISPS Code certification system.
   
   If the ship is ordered to an ISPS compliant port operating at Security Level 3, it will be known that a security incident is regarded as imminent or probable. An argument that a port operating at this level is unsafe may have better chances of success.
   
2. Q: Does it prejudice P&I cover to trade to a port not ISPS certified?
   A: No. The relevant UK P&I Rule - 5K(vi) - only requires the owner to maintain a valid International Ship Security Certificate (ISSC). There is no restriction on trading. The Ship Security Plan should normally include procedures to be followed if trading to a non-compliant port. These procedures will include special or additional security measures and may include the making of a Declaration of Security.
   
3. Q: What consequences may there be of trading to a non-compliant port?
   A: More rigorous examination/inspection at subsequent ports. Keeping a record of the additional security measures taken at the non-compliant port is therefore important. Members may wish to consider maintaining a security log on board, as a general aide to recording security matters.
   
   For more detailed industry comments on this and related issues, please also see the linked report, recently issued by ICS, of security discussions held at the May meeting of IMO's Maritime Safety Committee.
   
4. Q: Will the Club cover P&I claims arising from security measures imposed on a ship?
   A: Yes, but subject to the usual provisos, conditions, and exceptions in the cover.
   
   - One relevant condition is that the ship must have a valid ISSC if the Flag State requires this - without this certificate claims become discretionary. There has been some speculation as to whether it will become necessary for Flag States to grant extra time for shipowners to become compliant. If the deadline for compliance with ISPS were to be put back by a particular Flag State, then the Club's Rule requiring an ISSC to be maintained would for that reason have delayed effect in relation to ships of that Flag.
   
   - With regard to fines, those that are covered as of right under UK Club's Rule 2 Section 22 are fines in respect of the ship's cargo documentation, fines for smuggling or infringement of customs laws, fines for infringements of immigration laws, and fines for accidental spills.
   
   - A fine for failing to comply with security regulations would fall within para (F) of Section 22, wherein any kind of fine is covered provided that the Directors are satisfied that the Owner took all reasonable steps to avoid the event giving rise to the fine. Under this test, a fine imposed for not having an ISSC where it is clear that this reflects the owner's failure rather than, say, excessive delay by the Flag State administration, is not going to be covered.
   
   - Losses caused by delay consequent on security measures would be treated in the same way as losses caused by delays of more conventional origin. For example, if the carrier is liable for damage to perishable cargo due to delay, P&I cover responds in the usual way.
   
5. Q: Will the Club cover additional operating costs arising from security measures, such as additional discharging or forwarding costs if access to a port is denied?
   A: The Club does not normally cover additional operating costs unless they are incurred solely for the purpose of mitigating or avoiding a liability covered by the Club - in which case with the Club's agreement the additional operating cost can be covered as a sue and labour expense.
   
   Where there is no proper sue and labour argument, the owner can ask the Directors to exercise their discretion under Rule 2 Section 24 (Omnibus Rule) in respect of additional operating costs. In such a scenario one might expect the owner to have a less sympathetic hearing if he is clearly the author of his own misfortune, and a more sympathetic hearing if the additional expense arises despite prudent efforts by the owner to avoid the risk.
   
   The Omnibus Rule can at best provide discretionary cover for additional costs, liabilities or losses not covered elsewhere under the Rules, but it does not provide cover for the shipowner's own loss of profit.