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Security

The ISPS Code and security levels

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The ISPS Code is the reason there is a line called “ISPS” on almost every port disbursement account, and the reason a charterparty has a clause about security levels. It is also routinely confused with war risk, which is a different regime, priced by different people, and answering a different question. Getting the two apart is most of what a commercial desk needs from it.

Where it came from

The International Ship and Port Facility Security Code was adopted at a diplomatic conference on 12 December 2002, in the aftermath of the attacks of September 2001, and entered into force on 1 July 2004 under a new SOLAS chapter XI-2. That is unusually fast for an IMO instrument and the speed shows in how prescriptive it is.

It applies to passenger ships and cargo ships of 500 gross tonnage and upwards, including high speed craft and mobile offshore drilling units, engaged on international voyages, and to the port facilities serving them. Part A of the code is mandatory. Part B is guidance, although a number of administrations have made parts of it mandatory in their own law, which is why two flags can both be compliant and require different things.

What it puts in place

The regime works by requiring an assessment, then a plan, then a named person responsible for it, at both ends of the port call.

Two smaller items turn up in operational correspondence. The Declaration of Security is an agreement between a ship and a port facility, or between two ships, setting out which security measures each will take when the situation calls for one. The continuous synopsis record, required by SOLAS chapter XI-1, is the ship’s running history of flag, name, registered owner and DOC holder, kept on board, and it is the single document that resists a hull being quietly re-presented as something newer than she is.

The three security levels

Security level is the operative concept and the code defines all three.

LevelMeaningWhat it looks like
1, normalThe level at which a ship or port facility normally operates, with minimum appropriate protective measures maintained at all times Gangway watch, access control, identity checks. The default everywhere
2, heightenedAdditional protective measures maintained for a period, because there is a heightened risk of a security incidentMore searches, restricted areas, additional patrols, often additional shore guards
3, exceptionalFurther specific measures for a limited period, when an incident is probable or imminentRare. Effectively a direction from the state to the ship

The level is set by a contracting government, for its own port facilities and for ships flying its flag. It is not set by the owner, the charterer, the terminal or the underwriter. The ship then has to operate at the higher of her own flag’s level and the level the port facility is at, which is the mechanism that pushes cost onto a ship that has done nothing at all.

Why it is not war risk

This is the distinction worth carrying away. ISPS is a regulatory regime: a state declares a level and specified measures follow. War risk is an insurance regime: underwriters list areas, charge additional premium for entering them, and require notice. Neither one causes the other.

A port can sit at security level 1 and still be inside a listed war risk area, in which case there is additional premium and crew war bonus to pay and no additional ISPS measure at all. A port can go to level 2 for a state visit or a local threat with no insurance consequence whatever. The clauses are different, the payers are different, and an argument that mixes them will be settled against whoever mixed them.

Where the money is

Two separate lines, and they are worth separating on the disbursement account.

The first is the ISPS charge levied by the terminal or the port authority, a standing fee for maintaining its own security arrangements. It is a normal port cost and it is almost always there whatever the level.

The second is the cost of complying at a raised level: extra guards, extra searches, escort, and above all extra time. That is what the charterparty clause is for. The BIMCO ISPS/MTSA clauses for voyage and time charter parties, published in 2005 and still the common wording, set out who does what and who pays. Their practical content is worth knowing even in outline: the owner is to comply with the code and, on request, provide the ISSC and the full contact details of the Company Security Officer; the charterer is to provide information about the ports and the preceding cargo; costs and delays caused by measures the ship must take are allocated one way, and costs caused by requirements peculiar to the charterer’s ports and cargo the other.

Whether time counts is the live question, and it is charterparty drafting rather than convention. Under a voyage charter, waiting caused by a security requirement at the charterer’s nominated berth is ordinarily on the charterer’s time if the clause says so, and on the owner’s if it does not. Under a time charter the ship is on hire throughout unless the delay falls within an off hire event, so the argument moves to whether an ISPS delay is one. Read the clause before arguing the principle.

What an inspector checks

Port state control officers verify the ISPS side as well as the safety side. What they can do is bounded: the ship security plan is confidential and is not handed over for reading, so the check is of the certificate, the records of drills and training, the access control actually in force at the gangway, and the ship’s ability to describe what she does at each level. The last ten port calls and their security levels are recorded and an inspector may ask for them.

Findings are recorded against the ISPS category and they can be detainable, which is the commercial consequence. A ship stopped for a security deficiency is as stopped as one held for a lifeboat, and the entry stays on the record the next charterer reads.

References

War risk areasAn underwriters’ list of water, not a report of what happened last week. What being inside one does to the premium, the crew, the route and the rate. Port agency and disbursementsSomebody has to meet the ship. Who appoints the agent, who the agent answers to, and how a PDA becomes an FDA. SOLAS explainedThe safety convention every merchant ship is certified under. What is actually in it, and the handful of chapters a broker meets by name. Port state control and detentionsA detained ship cannot perform. What an inspection actually records, and how to read a hull's record without over-reading one bad day.

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