BIMCO has collected statements from a number of flag states, port states and recognised organisations/classification societies (RO) and produced a regulatory analysis concerning COVID-19 and its possible implications on statutory ship certificates, surveys, inspections or audits under relevant International Maritime Organization (IMO) and International Labour Organization (ILO) instruments.
Due to the COVID-19 pandemic, some ships may experience operational challenges such as shipyards or dry docks closing down. In addition, surveys and audits can in some cases not be conducted because surveyors are unable to attend the ships due to travel restrictions or quarantines.
The IMO has issued Circular Letter No. 4204/Add.1, addressed to all its member states. In this circular, the IMO Secretary-General addresses COVID-19’s impacts on the shipping industry, including implementation and enforcement of mandatory IMO requirements. The circular provides encouragement for flexibility. The IMO can only encourage co-operation and a pragmatic approach between flag and port states, and cannot issue a general exemption from the mandatory provisions of the relevant statutory conventions, nor delay implementation of mandatory regulations coming into force - not even in the current uncertain situation.
Furthermore, on 27 March 2020 IMO issued Circular Letter No. 4204/Add.6 reiterating the need for states to keep the flow of commerce by sea without disruption:
“In these difficult times, the ability for shipping services and seafarers to deliver vital goods, including medical supplies and foodstuffs, will be central to responding to, and eventually overcoming, this pandemic.
It is, therefore, crucially important that the flow of commerce by sea should not be unnecessarily disrupted. At the same time, the safety of life at sea, and protection of the marine environment, must also remain paramount.
One of the goals of IMO, as stated in its Convention, is to ensure availability of shipping services to the commerce of the world, for the benefit of humanity. I urge all IMO Member States to bear this in mind when framing their policy decisions with regard to the coronavirus. Defeating the coronavirus must be the first priority, but global trade, in a safe, secure and environmentally friendly manner must be able to continue, too.”
Latest IMO guidance
IMO has on the 22 July 2020, issued Circular Letter No. 4204/Add.19/Rev.2 wherein they provide guidance for flag states regarding surveys and renewals of certificates during the COVID-19 pandemic:
“It is the view of the Secretary-General that the extension of the validity of certificates beyond the statutory maximum should only be considered in extraordinary circumstances and if no other alternative, such as the issuance of a short-term certificate with an appropriate risk-based survey, exists. The issuance of short-term certificates or other measures should be limited to specific situations caused by the COVID-19 pandemic and relevant decisions should be made on a case-by-case basis. Flag States are encouraged to set a limit for such extraordinary certificates or other measures, which should be reviewed periodically, taking into account developments with regard to the pandemic. Certificates must be renewed under existing regulations as soon as possible.”
The majority of the large flag states have already provided initial instructions on possible ways forward in cases where statutory certificates need to be extended beyond the three months already commonly accepted. BIMCO expects that flag states continuously will have to review their instructions to shipowners and ROs to ensure that the world fleet can continue to sail and maintain the flow of commerce by sea.
Annexed to the latest IMO circular letter is ‘Guiding principles for the provision of technical and implementation advice to flag States when considering whether to permit statutory certificate extension beyond 3 months’ developed by the International Association of Classification Societies (IACS) member classification societies, in their role as Recognised Organisation (ROs) authorised by various flag states. But, as emphasised in the IMO circular letter, decisions concerning the issuance of short-term certificates, or the extension of statutory certificates, are in the end the responsibility of flag states.
IACS’s guiding principles is structured in six steps:
Step 1: Have all options for completing the survey and renewing the certificates (using all available means permitted by the Administration) been exhausted?
Step 2: For each case of demonstrated exceptional circumstances and/or force majeure, examine the available information on the ship and its history as a means to considering alternative evidence on the condition of the ship in lieu of completing the survey and offering a recommendation to its flag state
Step 3: Consider how the requirements of the convention and classification rules can be shown to be met in the interim without changing the requirements themselves
Step 4: Use verification requirements which are based on accepted survey procedures (these are bespoke to each classification society/RO)
Step 5: Consider alternative evidence for assessing compliance to account for confidence and durability
Step 6: Concluding with an overall documented evidence on which the extension period and any service restrictions are based
Latest guidance from the International Labour Organization (ILO)
ILO has on 7 April 2020, issued an information note on maritime labour issues and coronavirus (COVID-19). In here, the following guidance is provided concerning maritime labour certificates issued to ships and inspections required in accordance with the Maritime Labour Convention (MLC):
“34. The outbreak of COVID-19 has meant that the shipping industry and maritime authorities are facing challenges in respect of conducting the inspections required in accordance with Title 5 of the MLC, 2006.
35. The Office [ILO Secretariat] recognizes that the current circumstances may at times lead to situations of force majeure in which it becomes materially impossible to conduct the intermediate and renewal inspections required under Title 5 of the MLC, 2006, within the time frame foreseen by the Convention.
36. Some governments and port State control regimes have referred to the possibility to extend the validity of certificates for periods that shall not exceed three months from the date of expiry of the original certificate. Others have opted for the possibility to issue interim certificates when the renewal inspection required under Standard A5.1.3, paragraph 3, cannot take place. While these possibilities are not foreseen in the Convention, the Office is of the view that situations of force majeure created by the pandemic could justify such measures, when and as strictly necessary.
37. The inspections required under Title 5 must be conducted as soon as the situation improves. Maritime administrations are requested to regularly review the evolution of the situation.
38. In their joint statement, the Officers of the STC [Special Tripartite Committee] affirmed that: “It is also important to stress the need for a pragmatic approach and for special consideration in cases where ships cannot undertake vetting and inspection or receive externally provided maintenance and support as a consequence of travel restrictions affecting specialized staff, surveyors and technicians. Similarly, flexibility in ship certification may be necessary, to respond to difficulties in meeting dry-docking intervals.””
Latest Port State Control (PSC) guidance
To facilitate the flow of commerce by sea, the US Coast Guard (USCG) has in their Marine Safety Information Bulletin from 26 March 2020 stated that no deficiencies or detention of ships will be issued for expired certificates, documents or mariner credentials until 1 October 2020. Furthermore, it provides guidance on how the Officer in Charge, Marine Inspection (OCMI) from the USCG should proceed and under which circumstances port state control inspections can be postponed for up to 90 days:
“To facilitate the safe flow of commerce, the Coast Guard will liberally use remote inspection techniques to verify vessel compliance and, if needed, defer inspections.”
The Paris Memorandum Of Understanding Secretariat (Paris MOU) has on 8 May 2020, issued temporary guidance related to COVID-19. As they write in the associated press release:
“It is impossible to predict how long the pandemic will last, nor how a return to ordinary circumstances will be shaped. In view of this, the Paris MoU has considered that a limitation of three months in the guidance may be too short to address the challenges currently being faced and therefore has amended its guidance. Having considered the exceptional circumstances, extensions of the validity of certificates to an appropriate and proportional grace period specific to COVID-19 may be accepted. In addition, alignment with ILO’s “Information note on maritime labour issues and coronavirus (COVID-19)” has been sought in relation to MLC matters.”
The Tokyo Memorandum Of Understanding (Tokyo MOU) has on 10 April 2020 issued guidance stating that:
“Noting that no end sign of the situation can be expected at the moment, the guidance is revised to allow port State Authorities to apply the pragmatic relaxation for an appropriate grace period for delaying periods for surveys, inspections and audits specific to COVID-19 given to ship by the flag State Administration and/or RO.”
Similar guidance has also been released by the other PSC regimes: Caribbean MOU, Indian Ocean MOU, Mediterranean MOU and Viña Del Mar.
Interpretation by BIMCO
The relevant conventions from IMO and ILO have not been worded in such a way that they take a global lengthy uncertain situation, like the current COVID-19 pandemic, into consideration. BIMCO hopes that the information provided herein gives shipowners the needed support to find a suitable solution together with the relevant flag state and RO.
As shown in the links below, several flag state administrations have issued guidance related to the current situation and possible extension of certificates. There are minor variations between the different guidance but in general, flag states seem to show willingness to cooperate and employ a pragmatic approach. Similar to what has been communicated by the USCG and Germany, PSC authorities are encouraged to show a pragmatic approach and clearly communicate that they do not issue deficiencies or detain ships for expired certificates until after the current COVID-19 pandemic has been handled.
Also, ROs such as ABS, Bureau Veritas, DNV GL, Indian Register of Shipping (IRClass) and Lloyd’s Register have issued guidance for shipowners on how to apply for extension of statutory certificates or, if possible, remote surveys.
In BIMCO’s view, as clarified in the regulatory analysis, due to the prevailing force majeure, flag states should be able to extend the validity of all statutory certificates for a period of three months – including the Safety Management Certificate, the International Ship Security Certificate and the Maritime Labour Certificate.
If the pandemic continues to hinder the normal operation of shipyards or dry docks and restricts surveyors from travelling, it can become necessary to find additional commonly supported ways forward, especially as a bottleneck may be expected after the current COVID-19 pandemic has been handled. This could for instance be to issue ‘Short Term Certificates’ based on confirmations such as statements, photos and/or remote surveys, with an additional validity. This may be done on a case-by-case basis, based on a planned approach using alternative solutions. These may include alternative dry docks or survey locations subject to availability of surveyors.
In the end, and in line with IMO regulatory instruments such as regulation 14(e) of SOLAS Chapter I, when a renewal survey is completed, the new certificate shall be valid:
(i) for a passenger ship, a date not exceeding 12 months from the date of expiry of the existing certificate before the extension was granted.
(ii) for a cargo ship, a date not exceeding 5 years from the date of expiry of the existing certificate before the extension was granted.
Companies and crews are struggling with an increasing number of operational and time demanding challenges because of COVID-19. At the same time, they are trying to keep their crews protected from the COVID-19 infection by minimizing interaction with shore, while also keeping the ship in operation and thereby maintaining the flow of commerce by sea. It is therefore vital, in the mitigation of the COVID-19 pandemic, that flag states, port states and ROs do not make the extension of certificates an additional administrative burden in these challenging times.
Regulatory analysis of statutory IMO Conventions and mandatory IMO Codes
According to article 19 of the International Load Line Convention, regulation 14(e) of SOLAS Chapter I, regulation 10.5 of MARPOL Annex I and II, regulation 8.5 of MARPOL Annex IV, regulation 9.5 of MARPOL Annex VI and regulation E-5.5 of the Ballast Water Management Convention, the flag state may extend the period of validity of relevant certificates for up to three months.
When it comes to the ISM Code, under SOLAS Chapter IX, a Safety Management Certificate (SMC) shall according to regulation 6.2 of SOLAS Chapter IX be treated as a certificate issued under regulation I/12 or I/13 (Ship Safety Construction/Equipment/Radio Certificates).
Furthermore, in accordance with the International Code for the Security of Ships and of Port Facilities (ISPS Code), under SOLAS Chapter XI-2, an International Ship Security Certificate (ISSC) shall be issued, and in accordance with section 19.3.5 of the ISPS Code, the flag state may extend the period of validity of the ISSC for up to three months.
However, neither the SMC nor the ISSC are mentioned in the IMO’s Survey Guidelines under the Harmonized System of Survey and Certification (HSSC Survey Guidelines), since these guidelines focus on surveys and not audits.
According to the current version (2019) of HSSC Survey Guidelines (Res. A.1140(31)), the general approach allowing flag states to extend the period of validity of relevant certificates for up to three months is widened to also include mandatory IMO Codes, and applies to the following 13 types of certificates:
- International Load Line Certificate,
- Ship Safety Construction Certificate,
- Ship Safety Equipment Certificate,
- Ship Safety Radio Certificate,
- International Oil Pollution Prevention Certificate (IOPP),
- International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk,
- International Sewage Pollution Prevention Certificate,
- International Air Pollution Prevention Certificate (IAPP),
- International Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk,
- International Certificate of Fitness for the Carriage of Liquefied Gases in Bulk,
- International Ballast Water Management Certificate,
- Polar Ship Certificate,
- Passenger Ship Safety Certificate
“5.9.1 In SOLAS 74/88 and other mandatory IMO instruments the following provision applies: If a ship at the time when a certificate expires is not in a port in which it is to be surveyed, the Administration may extend the period of validity of a certificate but this extension should be granted only for the purpose of allowing the ship to complete its voyage to the port in which it is to be surveyed, and then only in cases where it appears proper and reasonable to do so. No certificate should be extended for a period longer than three months, and a ship to which an extension is granted should not, on its arrival in the port in which is to be surveyed, be entitled by virtue of such extension to leave that port without having a new certificate.”
In line with SOLAS and the above quote from the HSSC Survey Guidelines, IMO has in 2005 issued circular MSC-MEPC.5/Circ.1 containing recommended conditions for extending the period of validity of a certificate, which include eight considerations which flag states should take into consideration. The circular can be downloaded here.
“If a ship is in a port where the required survey cannot be completed, and where the Convention allows the Administration to extend the certificate when it is proper and reasonable to do so, the Administration should be guided by the following:
- an additional survey, equivalent to at least the same scope of an annual survey required by the relevant certificate(s) should be carried out;
- the renewal survey should be progressed to the maximum extent possible;
- in cases where a dry docking is required, but cannot be carried out, an underwater inspection of the ship’s bottom should be carried out;
- in cases where an underwater inspection is not possible (e.g. poor water visibility, draft restrictions, excessive current, refusal by the port Authority), an internal inspection of the ship’s bottom structure, to the maximum extent practicable, should be carried out;
- the ship should be allowed to sail directly to a named final agreed cargo discharge port and then directly to a named agreed port to complete the survey and/or dry docking;
- the extension period should be for the minimum amount of time needed to complete the survey and/or dry docking under the relevant certificate(s);
- the condition of the ship found by the surveys indicated above should be considered in determining the duration, distance and operational restrictions, if any, of the voyage needed to complete the survey and/or dry docking; and
- the extension period of the relevant statutory certificate(s) should not exceed the period of validity of the certificate which may be issued to document compliance with the structural, mechanical and electrical requirements of the recognized classification society.”
IACS’s Recommendation on duties of surveyors under statutory conventions and codes (Rec no.98 Rev.3) specifies that a ‘Interim certificate’ can be valid for up to five months and a ‘Conditional certificates’, also known as ‘Short Term certificates’, is valid only for a period long enough to permit the ship to proceed to the port or dry dock:
“2.2. An ‘Interim certificate’ is a certificate issued by the attending surveyor upon satisfactory completion of a survey in order to permit the ship to trade while the permanent/full term certificate is prepared. An interim certificate is usually valid for five months from the date of issuance.
2.3. ‘Conditional certificate’ or a “conditionally issued certificate” is a certificate with the appropriate expiry dates that is issued by the attending surveyor when deficiencies/defects exist which cannot be corrected in the port of survey. A conditional certificate is valid only for a period long enough to permit the ship to proceed to the port where the correction will be made.”
Regulatory analysis of the statutory ILO Maritime Labour Convention (MLC)
According to paragraph 4 in Standard A5.1.3 of the MLC Convention, the competent authority of the flag state may extend the validity of the Maritime Labour Certificate for a period not exceeding five months:
“4. Notwithstanding paragraph 1 of this Standard, where, after a renewal inspection completed prior to the expiry of a maritime labour certificate, the ship is found to continue to meet national laws and regulations or other measures implementing the requirements of this Convention, but a new certificate cannot immediately be issued to and made available on board that ship, the competent authority, or the recognized organization duly authorized for this purpose, may extend the validity of the certificate for a further period not exceeding five months from the expiry date of the existing certificate, and endorse the certificate accordingly. The new certificate shall be valid for a period not exceeding five years starting from the date provided for in paragraph 3 of this Standard.”
Links to additional guidance and instructions
The views and opinions expressed in this article are solely those of the BIMCO secretariat. The interpretation and enforcement of international regulatory instruments is the responsibility of national administrations and may vary from country to county. While every care has been taken in the preparation of this article, BIMCO accepts no liability or responsibility for any business, legal or other decisions made on the basis of the information provided or the views and opinions expressed.