Legal: Declaration of Security

Thursday, August 05, 2004

Like most other tasks involving two or more parties, maritime security becomes less difficult if each party understands what the others are going to be doing. The method for achieving this understanding in the marine sector, under both the International Ship and Port Facility Security (ISPS) Code and the U.S. Maritime Transportation Security Act (MTSA), is by means of the Declaration of Security.

Declaration of Security (DoS) is defined by the Safety of Life at Sea (SOLAS) Convention as "an agreement reached between a ship and either a port facility or another ship with which it interfaces, specifying the security measures each will implement". Maritime security regulations promulgated by the U.S. Coast Guard are more specific and provide that Declaration of Security (DoS) means:

An agreement executed between the responsible Vessel and Facility Security Officer, or between Vessel Security Officers in the case of a vessel-to-vessel activity, that provides a means for ensuring that all shared security concerns are properly addressed and security will remain in place throughout the time a vessel is moored to the facility or for the duration of the vessel-to-vessel activity, respectively.

DoS form

Review of the form recommended in the ISPS Code for documenting the DoS between a ship and a port facility reveals that, after identifying the ship and port facility involved, it provides for: (1) the period of validity of the DoS; (2) the activities covered by the DoS (i.e., mooring, loading or discharging cargo, bunkering, etc.); (3) the security levels of the ship and port facility; and (4) the affixing of the initials of the ship security officer and the port facility security officer for a variety of specific activities indicating that each agrees that the relevant activity will be done in accordance with its security plan. Among the specific activities addressed on the DoS form are monitoring restricted areas to ensure that only authorized personnel have access; handling of cargo; delivery of ship's stores; handling of unaccompanied baggage; controlling the embarkation of persons and their effects; and ensuring that security communication is readily available between the ship and the port facility. U.S. Coast Guard maritime security regulations provide that the DoS for U.S. ships and port facilities must include at least the information provided for in the ISPS Code recommended form.

Utilization of the DoS

Use of the DoS may either be mandated by a Contracting Government or requested by a ship. Reasons why a ship may request completion of a DoS include: (a) the ship is operating at a higher security level than the port facility or another ship with which it is interfacing; (b) there has been a security threat or a security incident involving the ship or the port facility; or (c) the ship is at a port facility that is not required to have and implement an approved port facility security plan. A change in security levels by either the ship or the port facility or both may necessitate completion of a new or revised DoS. Retention periods for completed DoS forms are to be specified for port facilities by their Contracting Governments and for ships by their Administrations.

There is one potentially significant gap with regard to use of the recommended DoS form. While the DoS is intended to be used when a ship calls at a port facility that is not required to have and implement an approved port facility security plan and (presumably) when the ship calls at a port facility that does not have an approved port facility security plan even though it is required to under the ISPS Code, there is no obvious place on the DoS form to indicate this situation. In this turn of events, the port facility probably has no security officer and no one at the port facility is likely to be willing to sign or initial the DoS form. There is enough blank space on the form, though, for the ship security officer to fully document the situation, including the additional security measures implemented by the ship to inoculate itself from the lack of documented security at the port facility. It is strongly recommended that the ship security officer clearly document on the DoS form and in the ship's log the additional security measures implemented by the ship during the call at the non-compliant port facility.

Requirements Unique to the United States

In the United States, the Coast Guard requires that each vessel and port facility owner or operator ensure procedures are established for requesting a DoS and for handling DoS requests from the interfacing entity. A DoS must be completed with regard to any interface involving a cruise ship or a manned vessel carrying Certain Dangerous Cargoes in bulk. For interfaces involving a cruise ship or a manned vessel carrying Certain Dangerous Cargoes in bulk, the security needs and procedures are to be coordinated and agreed prior to arrival and the DoS is to be signed by both the ship and the port facility or another vessel prior to commencement of passenger embarkation/disembarkation or cargo operations. At Maritime Security (MARSEC) levels 2 or 3, the security needs and procedures are to be coordinated and agreed prior to arrival and the DoS is to be signed by both the ship and the port facility or another vessel for all interfaces involving a manned vessel and either a port facility or another vessel. The port facility owner or operator must ensure that, in the event of a change in the MARSEC level, any ships moored at the facility and any ships scheduled to arrive within 96 hours are promptly notified of the change and that the DoSs are revised as necessary.

Control Measures

Failure of the ship to complete a DoS when it has interfaced with a port facility or other ship subject to, but in violation of, the ISPS Code or Chapter XI-2 of the SOLAS Convention constitutes clear grounds for a port state control official of a Contracting Government to exercising control measures with regard to the ship. Control measures utilized must be proportionate, but may involve: (1) inspection of the ship; (2) delaying the ship; (3) detention of the ship; (4) restriction of operations, including movement within the port; or (5) expulsion of the ship from port. For ships intending to enter a port of a Contracting Government, where there are clear grounds for believing that the ship is in violation of the ISPS Code or Chapter XI-2 of the SOLAS Convention, the port state control officials may: (a) require rectification of the non-compliance prior to entry; (b) require that the ship proceed to a specified location in the territorial sea or internal waters of the nation; (c) inspect the ship in the territorial sea of the nation; or (d) deny entry into the port. If control measures are exercised, the port state control officials must forthwith inform in writing the flag Administration of the control measures imposed and the reasons thereof. The port state control officials must also inform the recognized security organization (RSO), if any, and the International Maritime Organization (IMO) when control measures have been imposed. Denial of entry into port or expulsion from port may only be imposed where the port state control officials have clear grounds to believe that the ship poses an immediate threat to the security or safety of persons, or of ships or other property and there are no other appropriate means for removing that threat.

Summary

Proper use of the DoS is important, not only as a means of coordinating security arrangements between ships and port facilities, but also as a method of documenting appropriate implementation of the ISPS Code and related maritime security requirements. This becomes crucial when a ship calls at a port facility that is not in full compliance with the ISPS Code and does not have an approved security plan. A ship calling at such a port facility must not only institute additional security measures (as provided for in the ISPS Code and its ship security plan), but it must also be able to demonstrate to port state control officials at subsequent port calls that it took the appropriate steps. The way to demonstrate this full compliance with the ISPS Code is to complete and retain on board a DoS fully documenting the ship's security measures while at this non-compliant port facility. Welcome to the new world of security through paperwork.

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