By: Evgeniy Sukachev
Email: e.sukachev@blacksealawcompany.com
Senior Partner in Black Sea Law Company
& Irina Dolya
Associate in Black Sea Law Company
Port State Control in Ukraine: Obstacles and Changes
Every shipper coming to Ukrainian ports faces the bureaucratic and unfair system of the Ukrainian Port State Control.
Maritime Ecological Inspections such as Ecological Inspection of North-West Black Sea region of Ukraine and Ecological Inspection of Azov Sea of Ukraine provide port state control on the ecological security and act on the basis of The Maritime Ecological Inspections Statute.
The Cabinet of Ministers of Ukraine (hereinafter – ‘the Government’) initiated the renewal of ecological control concept in Ukraine. The Method of calculation of damages caused by oil pollution used in Ukraine was recognized inefficient and outdated.
The Government’s Directive enacted on March 10, 2017, that comes in force on May 21, 2017, and through it several significant Instructions shall be invalid: Instruction on the transport nuclear control at the border crossing, Instructions on the waters monitoring provision, unified forms of Examination acts for ecological control provision, approved by the Ministry of Ecology and Resources on the October 02, 2012; and one of the main ones – Method of calculation of damages caused by oil pollution, approved by the Government on April, 26, 2003, shall be invalid from May 21, 2017.
The new Concept of the ecological control provision in ports of Ukraine shall correspond to modern merchant shipping business. The Government directed to remove insufficient procedures that interfere with developing business in Ukraine. At present, the new Concept of ecological control provision in ports of Ukraine is being produced. New projects or concepts of the state control on the ecological security provision are not assigned in public.
The State Service of Ukraine for Transport Safety (hereinafter – SSUTS) provides state control on the land, maritime and water transport. SSUTS acts on the basis of The State Service of Ukraine for Transport Safety Statute approved by the Government on February 11, 2015. SSUTS provides Port State Control on the basis of The Rules on ship control for the Safety of navigation provision approved by the Ministry of Transport of Ukraine on July 17, 2003.
Shipping companies, agents and shipping managers from time to time face illegal procedures and corruption schemes in ports all over the world. Shippers coming to the ports of Ukraine must be aware of illegal demands assigned by the port state institutions.
On December 05, 2016 the Ministry of Infrastructure of Ukraine approved The Instruction on the shipboard arrangements used for discharge of polluting substances sealing (hereinafter – the Instruction). The Instruction gives SSUTS rights to inspect seals on any vessel coming to Ukrainian port. SSUTS may detain any vessel on the ground of an insufficient sealing and occurrence of any other deficiencies.
The cases of illegal vessel detainment are not rare in the ports of Ukraine, even the amount of such illegal inspections has recently increased when some ex-“ecological” workers came to the SSUTS, with the purpose to take care of any “trouble” at the vessel through “good” company.
The illegal structure is very simple: if the agent does not want to have problems with his vessels, the agent should have the Contract with exact Company, that provides services in Ukrainian Sea and River ports.
Here is an example of such a Company: “POSEIDON ENGENEERING” LLC (hereinafter – the Company) is a private company that offers sealing services in The Odesa Sea Port, The Illichivsk Sea Port and others in Odessa, Nikolayev and Kherson regions. The ship’s Crew usually provides sealing by themselves according to MARPOL. Ukrainian Law does not stipulate an obligation to provide sealing by the specific institution or company. However, the founders of the Company are suspected of having family relations with SSUTS’s officials.
Mainly, agents and shipping companies prefer to pay for the Company’s “sealing service”. Therefore, ships that “received” the Company’s service successfully pass through the Port State Control in Ukraine.
Example:
On the April 25, 2017, m/v “GRAND BRIDGE” (IMO 9131046, flag – Belize) (hereinafter – the Ship) was detained at the Illichivsk Sea Port.
According to the Sample Form Notification of Detention issued by the SSUTS, the Ship was detained on the ground of oil leakage, cooling system water leakage and an unsatisfactory state of the engine room.
The Ship’s Crew adjudges detention illegal and groundless. According to the Ship’s Master, SSUTS’s inspection lasted for 10 minutes. The Ship’s Crew shared the video via Internet to show that the shipboard arrangements of the Ship are undamaged. The Ship’s Master insists that the inspection provided was insufficient and detention illegal. The Ship was detained shortly before the weekend and an official holiday in Ukraine – May Day.
The Ship is detained for 9 days, which resulted in severe material damage for the Owner.
Of course, such a situation could not be out of Ship-owners’, Managers’ and Agents’ attention. Before the Ship’s arrival to Ukrainian port, the Master and the Agent must be aware of all demands of port institutions. The Master should have a contact of maritime law specialist to get an immediate consultation in case an incorrect and illegal demand occurs. The Agent should be ready at any time to provide lawyers with all necessary documentation related to the Ship.
Our specialists work to decrease the amount of illegal detentions in Ukraine and improve legal acts and legal culture in Ukraine according to the demands of modern merchant shipping, and so do members of the Ukrainian Maritime Bar Association (hereinafter – UMBA), a public organization that was established with the main purpose being aimed at the development of international maritime law and national Ukrainian legislation in the respective field.
Since 2012, UMBA has been a member of the Committee Maritime International that is an organization that was formally established in 1897 and is currently one of the most authoritative international organizations, which addresses issues of the unification of maritime law. UMBA is aimed to harmonize maritime law practice in Ukraine with international standards and support the merchant shipping business development.
The Ministry of Infrastructure of Ukraine is the main authority that handles transport relations in Ukraine. Common Council by the Ministry of Infrastructure of Ukraine was established on November 3, 2010, according to the Government’s Directive “On the community’s participation in government policy formation and realization provision”.
As members of Common Council by the Ministry of Infrastructure of Ukraine, our Lawyers at Black Sea Law Company act as consultants and observers in the process of Directives and Acts in Transport sphere preparation. The work in the Common Council by the Ministry of Infrastructure of Ukraine gives us opportunities to lead a dialogue with authorities and defend commercial interests of our clients on the national level. We do think that it is necessary to stay up to date with the current changes of Port State control in Ukraine to provide safe and successful business to our clients.
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