MCA on Port State Control

PORT STATE CONTROL - YACHTS

Dear Sirs,

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. 

YACHT CATEGORIES

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

Attachment 1

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.

Attachment 2

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.