Is the ships register or ship registry liable for containers falling off a ship.

Recent news reports of 83 containers falling off a ship off the coast of Australia in heavy seas seems to have triggered a question in the minds of some people. “Is the ship register or ship registry liable for containers falling off a ship”.

The article from several sources which are part of the shipping fraternity reported “A Yang Ming container ship has lost more than 80 containers overboard while battling heavy swells off the east coast of Australia.“

Whereas the second article from a local news channel in Australia reported “Heavy seas hit the fully-loaded Liberian freight ship, YM Efficiency, when the containers fell like dominoes into the water 30 kilometres off the coast of Port Stephens.“

All sources, refer to the ship as a Yang Ming container ship obviously in reference to the operator of the ship “YANG MING” emblazoned on the side of the ship and the funnel, whereas others local news channels refer to it as a Liberian freight ship based on the port of registration “Monrovia” visible on the stern of the ship.

While this was just an observation it is natural for people to assume that the ship register may have some liability for the containers falling off a ship.

Why this question may be important? Well, the flag state or the state registering the ship (ship register) has a duty among other things to take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

Ø  the construction, equipment and seaworthiness of ships;

Ø  the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;

Ø  the use of signals, the maintenance of communications and the prevention of collisions

Ø  that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship

Ø  that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship

Ø  that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.

So, is the ship register or ship registry liable for containers falling off a ship? If we examine the question a bit deeper, particularly in relation to this ship, Liberia is the 2nd largest ship registry in the world in terms of tonnage and it is an Open ship register which is also referred to as a Flag of Convenience in certain quarters.
These FOCs have certainly had some bad press due to alleged flexible to loose maritime safety policies and registration conditions, unfair competition with the traditional registers by avoiding the expenditures needed to maintain safety and labor standards, substantially lower administrative fees which result in lower costs for the ship owners..

In the case of bareboat charters (which is one of the common type of charters for container ships), it is common that the operator of the container ship who is responsible for both technical and commercial management of the ship, can
choose the register that they want to flag the ship under.

In such cases, the operator may naturally go for the ship register that offers the best trading advantages, cost benefit and ease of operation. The ship register is in no way connected to or responsible for the commercial or technical operation of the ship.

The port of registration of the ship has no bearing or liability on the containers falling off a ship unless it is proven otherwise in terms of the ship certifications or lack of maintenance thereof.

Here are some highlighted points from Rogers, Rhea, “Ship registration : a critical analysis” (2010). World Maritime University Dissertations. 447 in relation to open registers and their responsibilities when it comes to following the international conventions.

Open registries, like other registers, contain a wide variety of tonnage, of different ages and construction; some vessels are operated by large multinational corporations, like the major oil companies. Some of the most modern ships are being operated under open registers and the more responsible open register States have taken steps to exclude old and aging tonnage from their register.

Panama requires vessels over 20 years of age to undergo a special inspection before the Permanent Certificate of Registry can be issued. Liberia generally requires that vessels seeking registration (or re-registration) are not more than 20 years old and Bahamas generally applies a 12 year age limit.

All the major open registers are parties to the generally accepted international maritime safety conventions and the more responsible registries have a network of worldwide inspectors to ensure compliance. Liberia and Panama even make annual levies on ships in their registers, based on net tonnage, for casualty investigation and international participation.

In the December 2007 UNCTAD annual statistical entitled “Review of Maritime Transport”, there were no generally distinguishing conclusions that could be drawn with regards to the comparison of the safety of foreign flagged versus nationally flagged vessels. In other words, there were no significantly distinguishing differences between the safety records of national and open register ships. So, couldn’t it just simply be another case of the weather wreaking havoc on a container ship?

Well at the risk of repeating the issue containers do not just fall off a ship. While a lot of containers may be lost at sea or fall off a ship due to weather conditions, several instances are manmade, such as negligence, container weight misdeclaration, cutting corners to save costs, improper packing of cargo inside the containers, improper stowage planning etc.
Stack collapse on board a ship may happen due to the failure to comply with limits for stack or tier weights or stack heights stipulated in the ship’s CSM or due to the misdeclaration of container weights. All it takes is just one container to start a stack collapse if not properly lashed. Gard also notes that the CSM itself may not have catered for different stability conditions or the use of non-standard containers, such as high cubes.

Added to this, the sheer scale of the lashing arrangements required on Panamax or larger container ships poses quite a challenge for the ship’s crew to check against the CSM to ensure compliance. The larger the ship, naturally the more lashing equipment is required and in some cases in the hope of reducing costs, some ships may cut corners with this.

But also be aware that such maintenance is not an easy task and incidents may also occur due to defective equipment.