What is a ‘defect’ in seaworthiness? Shipowners think the government is not being clear enough.By Sunny Um, South Korea correspondent, Maritime Fairtrade
About 80 percent of global trade is conducted through ocean transports. There is no doubt that the seaworthiness of cargo ships is paramount to ensuring the smooth flow of goods. However, some shipowners say the government does not give a clear definition of what constitutes a defect, thus it is hard for them to undertake a thorough safety check to comply with the legal requirements even though they can be held responsible by the authority for any safety mishaps.
Many countries’ maritime laws, including South Korea, stipulate that all shipowners and operators must keep their ships in seaworthy condition. Seaworthiness, according to maritime law, is a measure of whether ships are safe enough to sail at the start of their voyage.
Mandatory periodic surveys and inspections of ships are carried out to ensure safety and seaworthiness. Sea-going ships have to go through a series of inspections in order to meet minimum requirements to continue sailing. Sending unsafe ships out for a voyage is a criminal offense in countries with strict shipping or maritime laws.
However, some South Korean shipowners say that the country’s maritime law does not provide a clear definition of what “defect” is. Recently, the Korea Shipowners’ Association (KSA) has filed a petition with the government to elaborate on the term.
Seaworthiness in South Korean Maritime Law
The term seaworthiness can be found in the Ship Safety Act in South Korea. Article 15 of this Act states that shipowners must keep their ship facilities in the “normal working and operating state so that the seaworthiness of the ship is maintained after it undergoes a shipbuilding survey or ship survey.”
Article 74 in the same Act says that any shipowner, captain, or crew who found “any defect in seaworthiness and safety facilities of a ship should report to the Minister of Oceans and Fisheries”.
If he or she who discovered the defect fails to report it to the government, the government can make it a criminal offense and give a sentence of one year in prison or up to a 10 million fine (US$8,700), according to Article 84.
What is a “Defect”?
KSA said the current law’s definition of the term “defect” is not clear and precise enough for shipowners to act on and comply with.
“The standards and ranges of ‘any defect in seaworthiness and safety facilities of a ship’ are not clearly defined by law,” KSA said in a statement on July 2. “This means people who report or investigate the defect can make a subjective (or opinionated) judgment on relevant cases.”
The association added that innocent shipowners who cannot determine the defect in seaworthiness — due to the absence of a guideline — can get wrongly punished by the government when a maritime accident happens.
“If a mishap occurs, people who did not file a report on such undefined defect get punished,” the association said. “They may get punished based on how the public reacts to the accident rather than the authority’s investigation on the cause (or whose responsibility it may be).”
Maritime Fairtrade has requested KSA for the case files and numbers of shipowners who were wrongly punished due to the unclear definition of the term, but the association did not reply.
The government thinks otherwise
An official of the legal department at the Ministry of Oceans and Fisheries, surnamed Park, said that this is the first time the government received such a petition to elaborate on the term.
“The petition is currently under review by the Constitutional Court,” Park said. “There is nothing the government can say at this stage (until the court makes a decision).”
Still, Park stated that there should not be much confusion in practicing the law as professionals in the field are trained to identify any defect in ships.
“The government does not find the law so problematic to practice,” Park said. “Field managers are properly trained to know what seaworthiness and ship defects are.”
Although there is no clear guideline on identifying defects available for shipowners yet, Park said interested parties can refer to the Enforcement Rule of the Maritime Safety Act for more information.