PORT STATE CONTROL - YACHTS
I am writing to you about recent changes which have taken place relating to Port State Control (PSC) inspections in Europe, and to which your yacht may be subject. Port State Control is administered in Europe through the Paris Memorandum of Understanding (Paris MOU) - some detailed information about Port State Control administration is included at Attachment 1. The Paris MoU has issued guidance to Port State Control Officers (PSCOs) on how to identify yachts which fall within the "New Inspection Regime" (NIR- see Attachment 1). We recognise that this is causing, or is likely to cause, some concern amongst yacht owners and managers and therefore this letter is intended to give you some background information,to set out the United Kingdom position, and to provide advice on what action you need to take.
CURRENT GUIDANCE, PSC CIRCULAR 56; AND UNITED KINGDOM POSITION
In summary, the guidance issued to PSCOs, Port State Circular 56, suggests that the flag State should determine the status of a yacht. (i.e. whether it is "engaged in trade" or not). This is because "a pleasure yacht engaged in trade" falls within the scope of International Conventions.
lt is the view of the United Kingdom that the Certificate of Registry should be accepted as conclusive evidence of the yacht's status. Unfortunately, the guidance goes on to suggest that if a yacht is issued with a certificate under the International Load Line Convention (ILLC) or is marked according to the Convention with Load Line marks on the sides, then this indicates or implies that the vessel may be "engaged in trade". This is because the ILLC applies to "pleasure yachts engaged in trade". We recognise that many pleasure yachts have been issued Large Commercial Yacht Code and Convention Certificates on a voluntary basis.
The United Kingdom disagrees with the current PSC guidance, with respect to the link between the use of the yacht and the Convention certificate(s) and the implication that a vessel issued with a Convention certificate must in consequence be "engaged in trade". Although the Conventions may require vessels to comply if they fall within the scope of the applicable Convention, in our opinion, there is no legal basis to prevent a vessel being surveyed and issued certificates if it complies with the requirements, and no inferences should be drawn from the fact that it does so on a voluntary basis.
In any event, there should be nothing to fear from a Port State Control inspection. If the yacht has been surveyed and issued with certificates, the PSCO will ask to see the original certificates and carry out a simple initial inspection, a "walk around", of the yacht and may carry out a few simple checks. Only if they have clear grounds will a more detailed inspection be carried out after the simple initial inspection.
We believe it appropriate to consider two categories of yachts, identified by their use.
1. COMMERCIAL YACHTS : i.e.used as part of a business or otherwise "engaged in trade".
In theory , if a yacht is engaged in trade (even only occasionally) , then it will be liable to inspection, according to the NIR.
As flag State, we are responsible for ensuring yachts have the right documentation. This includes clarification as to whether the yacht is engaged in trade or is a pleasure yacht. Currently,we use the same certificates for both; which mean that regardless of what the Certificate of Registration may say, the certificate issued under the Code states it is "commercial" and if applicable an International Load Line Certificate will be issued by Class.
lt should be noted that a yacht which is sometimes engaged in trade and sometimes not, could be considered to be engaged in trade (with down time periods between charters for example when laid up or in use privately as a "pleasure yacht"). Therefore , such yachts must continue to operate with the certificates as a "Commercial Yacht",and will be subject to PSC inspection .
Issue of such certificates does not in itself provide evidence for other purposes, for example tax status, or that the yacht is always used commercially.
In order to maintain validity of the Code and Convention certificates , surveys are to be carried out in accordance with the Code or Convention requirements, even during periods when operating as a Pleasure Yacht.
2. PLEASURE YACHTS: i.e. used exclusively as pleasure vessels by the owner, family and friends. (or Pleasure Yachts- Not Engaged in Trade)
The UK and other Red Ensign States, have encouraged (on a voluntary basis) pleasure yachts to be surveyed and issued with certificates according to the Large Commercial Yacht Code and Conventions. In our opinion it would be a backward step for these yacht owners to feel that they should abandon the standards now widely adopted in order to avoid inspection.
If a yacht is a "pleasure vessel not engaged in trade", the owner must declare as such on the application for registration. The MCA will then provide a Certificate of Registry as a "Pleasure Yacht (not engaged in trade)" .
We recognise that owners of pleasure yachts have good reasons to request surveys and certificates to the Code standards. This could include;
- seeking assurance that their yacht is built to a recognised standard ;
- be capable of being offered for charter in the future , or;
- to maintain a higher re-sale value.
We wish to continue to offer this service, because it also enhances safety.
Action required for "Pleasure Vessels not Engaged in Trade" is provided in Attachment 2
SUMMARY OF ACTIONS
In September 2012, MCA submitted a paper to the Paris MOU to propose changes to its guidance . The Paris MOU Advisory Board considered this paper and comments from other Members. A paper will be prepared for consideration at the next Committee meeting in May 2013, but in the meantime PSCOs will be guided by the current guidance to avoid unnecessary inspection of pleasure yachts. lt was also agreed that the Paris MOU Secretariat should meet representatives of industry to discuss their concerns. This meeting took place on 8 January 2013 which resulted in MCA writing this letter and requesting the Paris MOU to consider the points made before amending the PSCO guidance.
Commercial Yachts "engaged in trade" will continue to be issued with Certificates in accordance with the Large Commercial Yacht Code, including any relevant Convention Certificates. Certificates of Registry should be issued as "Yacht engaged in trade."
For Pleasure Yachts currently registered as commercial (i.e. "engaged in trade"), where the owner requests a change to pleasure vessel status, a new "Statement of Compliance for a Large Pleasure Yacht" and a new Certificate of Registry as a "Pleasure Vessel (not engaged in trade)" will be issued. In addition, a letter clearly indicating that the yacht is a pleasure vessel and explaining the rationale behind issuing Convention Certificates on a voluntary basis will be issued. Further details are provided in Attachment 2.
For yachts which change their status from commercial to pleasure or vice versa, an entry should be made in the ship's log book to indicate the date when such a change took place.
Should you require further clarification, please contact the undersigned.
M. J. Sanderson
The Paris Memorandum of Understanding and PSC activity in Europe Control, Port State Control, Paris MoU and EU Directive
Individual port States may exercise "Control" in ports under their jurisdiction according to the provisions of Conventions; typically , SOLAS 74, as amended, Regulation 1/19. Since 1982 this activity has been co-ordinated in European ports, and the east coast of Canada, through the Paris Memorandum of Understanding (Paris MoU). Such MoU provide for common local practice and avoids duplication of effort by neighbouring States1
Since1995 Port State functions have been subject to an EU Directive. The current directive is 2009/16/EC "On Port State Control"
New Inspection Regime (NIR), Risk and Inspection
The latest European Union Port State Control Directive uses the expression the "New
Inspection Regime (NIR)".
The purpose of the NIR is to ensure that all ships "engaged in trade" operating within Europe will be inspected, to make sure that none slip through the net. The inspection schedule is determined according to the estimated risk. For example a;
- High Risk ship must be inspected every 6 months,
- Standard Risk ship must be inspected every year and
- Low Risk Ship must be inspected every three years .
When the above period of time· is exceeded the ship is identified as a Priority I (PI) for inspection purposes and MUST be inspected immediately.
The "window of opportunity for inspection" opens;
- at 5 months for a High Risk Ship,
- at 10 months for Standard Risk, and;
- 2 years for Low Risk.
When the "window of opportunity" opens the ship becomes eligible for inspection and is referred to as a Priority· 11 (PII), changing to PI when the above mentioned periods have elapsed.
All ships of 300GT and over, including pleasure yachts, must report their arrivals and departures according to the Vessel Traffic Monitoring Directive 2002/59/EC, as amended by 2009/17/EC, and this information is entered through SafeSeaNet to THETIS (PSC database) .. This means that every ship, including yachts, of 300GT and over will be reported and it is then up to the PSCO to determine if the ship is required to be inspected under the PSC Directive (NIR) or not.
lt should be noted that Port States always have the right to inspect ANY ship within their jurisdiction, including pleasure vessels of ANY size, although these would not fall within the scope of the NIR.
Because many yachts will now potentially fall within the NIR, most of which have never previously been inspected, the Paris MOU have developed guidance Port State Circular 56 for their PSCOs on how to determine if a yacht is eligible or not.
Action required for "Pleasure Vessels not Engaged in Trade"
1. A new "Statement of Compliance for a Large Pleasure Yacht" , specifically for "Pleasure Yachts not Engaged in Trade", has been produced by MCA for vessels where the owners wish to comply with the Code on a voluntary basis.
2. If an owner wishes and the yacht complies with the Code;
a. it will require surveys and certificates according to the requirements of the Code and the appropriate Conventions.
b. we will continue to require such yachts to be issued with Convention Certificates (at least those relating to the construction of the yacht)
c. other certificates for Safety Management or Security will remain voluntary .
3. lt will be the responsibility of the owner to maintain the yacht , arrange for the conduct of relevant surveys and have the certificates issued or endorsed.
4. If the surveys are not carried out we will cancel certificates and request their return, to the issuing office.
5. A ''Statement of Compliance for a Large Pleasure Yacht" would be issued and the MCA would also provide an official letter stating clearly that the yacht is registered as a pleasure vessel and is not engaged in commercial operations. In the letter we would also explain the rationale behind the issuing of Convention Certificates.
6. If a Port State Control Officer boarded the vessel to carry out an inspection, the Captain of the yacht would be able to show that officer the Certificate of Registry and if applicable the "Statement of Compliance for a Large Pleasure Yacht". This would clearly indicate that the yacht was a pleasure vessel. There is no need to show the other Convention certificates which are issued on a voluntary basis (other than those applicable to pleasure yachts, such as those issued under the MARPOL Convention) . The additional letter could be used, only if found necessary.
7. lt is equally important that if a yacht is used commercially at any time, that it is in possession of the appropriate certificates and that the Certificate of Registry correctly identifies the yacht as either a "Pleasure Yacht" or a commercial "Yacht engaged in Trade".
8. Where a pleasure yacht is currently registered as a commercial vessel, the following procedure should be adopted.
a. For a yacht where all the requirements are complied with (including surveys) , an application should be made to the MCA for a Statement of Compliance for a Large Pleasure Yacht to be exchanged for the current Certificate of Compliance.
b. On receipt the MCA will provide the new Statement of Compliance for a Large Pleasure Yacht and the letter mentioned above.
c. When this has been received on board the current Certificate will need to be returned to the MCA for cancellation.
9. lt should be emphasised that a pleasure yacht need not comply with the Code, but will need to comply with certain international requirements depending on the vessel size; for example;
- the International Convention for the Prevention of Pollution from Ships (MARPOL), for oil, garbage ,sewage and air;
- the International Regulations for Preventing Collisions at Sea, and;
- Chapter V of the Safety of Life at Sea Convention (SOLAS).
10. MCA recognise that the Class notation could be different for a pleasure yacht and a commercial yacht. In the former, the standard of construction or survey requirements may be more relaxed than for a commercial yacht. For example, for a pleasure yacht , standards of construction may be according to the Society's "Rules for Yachts" and surveys may be carried out every two years. For a commercial yacht the standards of construction should be appropriate for the issue of an International Load Line Certificate which may mean that the Class Society as the Load Line Assigning Authority would chose their "Rules for Ships" rather than their "Rules for Yachts", and annual surveys would be required. For this reason the survey and certification regime for the Classification Societies will still require annual surveys, as these are linked to the requirements of the Conventions.
Reverting back to a Commercial Yacht:
11. If the owner subsequently wishes to operate the yacht as a commercial yacht engaged in trade, provided all survey requirements are continued as if the yacht was operating as a commercial vessel , the yacht can be issued with a Statement of Compliance for a Large Pleasure Yacht and Certificate of Registration as a commercial yacht. The yacht will then be subject to Port State Control inspection.
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