MACN Guide – Ukraine

MACN Maritime Anti-Corruption Network MACN Guide – Ukraine

About this guide

The purpose of this guide is to increase awareness of the challenges Captains and crew face in Ukrainian harbours, ports, and terminals, and provide guidance on how to tackle them.

General overview

Ukraine is party to the Black Sea Memorandum of Understanding (BS MOU) on Port State Control signed on 07.04.2000 (come into force on 19.04.2002), along with other Black Sea countries like Bulgaria, Georgia, Romania, Russia and Turkey. Accordingly, if a vessel calls Ukrainian ports, it can be inspected by PSC on the terms and conditions prescribed in the BS MOU.

Ukraine has 13 sea ports (ports located on the temporarily occupied area of Crimea are not included), namely, Odesa, Chernomorsk (ex-Ilichevsk), Pivdenny (ex-Yuzhny), Mykolaiv, Kherson, Ochakov, Izmail, Reni, Belgorod-Dnistrovskiy, Olvia, Skadovsk, Berdyansk and Mariupol. Three ports (Odesa, Chernomorsk, Yuzhny) constitute so-called “ports of Odesa hub”, where substantial volume of bulk cargoes is transshipped.

Corruption Perception Index (CPI) by Transparency International

According to the research conducted by Transparency International for the reported year 2019, Ukraine’s score in Corruption Perceptions Index 2019 is 30/100. As a result, we are back to the level in 2017 and now rank 126th out of 180 countries. Our peers in the index are Kyrgyzstan, Azerbaijan, and Djibouti. Among its peers, Ukraine is ahead of Russia, which maintains its position (28 points, rank 137). Out of the remaining peers, Poland is the leader with 58 points (rank 41), followed by Slovakia (50 points, rank 59). Belarus gained 1 point and now ranks 66th with 45 points. Some of our peers have lost points this year: Romania lost 3 points, Hungary — 2 points, and Moldova — 1 point1 .

In what areas do crews face corruption challenges in Ukrainian ports?

According to specialized electronic media2, shipowners and crewmembers are faced with corruption demands in Ukrainian ports mainly during the following:

Port State Control (PSC) according to the Black Sea Memorandum of Understanding (“Black Sea MoU”) and Guidelines on Vessel’s Clearance (Order of the Ministry of Infrastructure #430 dated 27.06.2013);

Customs control (inspection of ship’s stores declared by the Master to the customs authorities);

Ecological Control (in case of sea pollution due to spills, but mainly focused on ballast waters operations);

Port State Control Inspections

PSC officers often go beyond the verge of powers and issue code “30” (ship’s detention) on contrive pretexts. Rectification of the deficiency usually requires involvement of vessel’s class, which causes delay in vessel’s sailing from the port. Hence, it is extremely important for crewmembers to know basic “deficiencies” detected by Ukrainian PSC inspectors and be aware of relevant reactions on unlawful demands from PSC’s side.

1 http://cpi.ti-ukraine.org/#/ 2 https://www.seafarersjournal.com/ https://ports.ua/ https://en.cfts.org.ua/ 1 CONTROL OF VESSELS BY PSC WITHIN BLACK SEA MOU: TYPICAL DEFICIENCIES WITH CODE “30”

Convention PSC deficiency Deficiency Class remarks Code/Action Taken Code ISPS Code In time ship stay in Port with security 15150/30 Security levels are procedures to respond to security threats or breaches of security, including provisions for level #2 precautions procedures maintaining critical operations of the ship to port facility interface or ship-to-ship interface. Security Level 1 means applicable as per ISPS Code do not the level for which minimum appropriate protective security measures shall be maintained at all times. Security work on board: boarding registration of Level 2 means the level for which appropriate additional protective security measures shall be maintained for visitors passed with major discrepancies a period of time as a result of heightened risk of a security incident. Security Level 3 means the level for which (duty seaman did not check ID of visitor, further specific protective security measures shall be maintained for a limited period of time when a security did not recorded the visitor’s name in incident is probable or imminent, although it may not be possible to identify the specific target. The security level the Visitor’s Log Book, visitor’s card has 1 is continuous, at this level ship normally operate. The ship security plan details the basic security measures for not been issued). security level 1, that will always be in place. Furthermore, the plan details the additional security measures that will allow the ship to progress without delay to security level 2 and, when necessary, to security level 3.

ISPS Code Security level on board – 1. Security 16105/30 When entering a port facility, a ship is required to act upon the security level set by the Contracting Government. level at port – 2.

MARPOL As it was declared by PSC, Type 14605/30 Certificate of Compliance for shipboard incinerator was not submitted by crew to PSC officer during inspection. Approval Certificate for ship’s incinerator But despite this circumstance the incinerator is quite clearly identified, namely - marking plate at the incinerator missing on board (detainable deficiency) contains info: “Complied with IMO MEPC.76(40)”. Appropriate Certificate of Compliance No DNV/NMD-2005-04 for shipboard incinerator OG 200 C (as it prescribed by MEPC. 76(40)) has been found on board and available. Taking into account the aforesaid, this deficiency can’t be evaluating as detainable.

MARPOL PSC claimed that oil spill may be 14120/30 Scupper’s plug is the shut-off valve with plate (with rubber ring), screw stem and hand-wheel. It’s designed for possible overboard due to supposedly simple manual operating (closing / opening) without any tools. unreliable condition of scupper’s plug This scupper’s plug has been thoroughly inspected, checked in operation and tested by water filling. Any defects and on upper deck (starboard side, nearby leakages have not been found. Other scupper’s plugs also have been inspected and found without any defects. The cargo manifold). Unreliable condition of trays under cargo manifolds and upper deck also have been inspected, any leakages from the trays or traces of old plug on opinion of PSC officer was that leaks have not been found. This remark is not the deficiency. Rectification is not necessary. it should be tightly closed stronger with tolls but not manually without tools. This remark is declared as grounding for detention and related to ISM. MACN Guide – Ukraine

Members of IACS Group having offices in Ukraine: ABS (Kyiv), Bureau Veritas (Kyiv), DNV GL (Odessa), Polish Register of Shipping (Mykolaiv), RINA (Odessa), Russian Register (Odessa, Izmail, Mykolaiv, Kherson, Mariupol).

IMPORTANT: If your vessel has been detained by PSC inspector and there is no representative office of vessel’s class in Ukraine, please contact any of aforesaid IACS Members for assistance and support.

Customs Control inspections

Are you going to Mykolaiv port? Be ready for comprehensive customs control of ships’ stores

Mykolaiv port is located on the river Pivdenny Bug; however, it is connected to the Black Sea through the Bugsko- Dniprovskiy Limanskiy Channel (BDLC). The following port terminals are located in Mykolaiv port: Mykolaiv Sea Commercial Port, Nibulon, Dnipro-Bugskiy, Olvia (ex-Oktyabr’sk), Nika-Tera, Ochakiv. All these terminals are inspected by customs officers of Mykolaiv customs office who conducts bunker survey and inspection of stores declared by the Master.

CUSTOMS CONTROL OF SHIP’S STORES: BASIC RIGHTS OF THE MASTER

Customs officers usually re-check the following items declared by the Master as ship’s stores:

1. Fuel oil/Diesel oil/Lubrication oil (control method: bunker survey);

2. Vessel’s paints (control method: item-by-item re-count);

3. Vessel’s chemicals like boiler water treatment, carbon remover etc. (control method: item-by-item re-count);

4. Ammunition (body armors, crash helmets);

5. Cash on board (control method: re-count).

Fuel/Diesel/Lubrication oil: Bunker Survey consequences

Bunker surveys conducted by customs officers have resulted in differences between the figures of fuel in the Ship’s Stores Declaration and actual volume of fuel on board. As long as “non-declared” fuel could not be seized from vessel’s tanks into store facilities, customs office asks the agent to put cash deposit equaled to twice amount of “non-declared” bunker value. For example:

Declared by Master: 570 tons of VLSFO;

Found by customs: 592 tons of VLSFO;

Difference (non-declared): 22 tons of VLSFO;

Deposit to be paid: 22*USD 584 = USD 12,848

Vessel’s paints and chemicals: ship’s stores or ship’s spare parts?

According to FAL Convention of 1965, ship’s stores are goods for use on board the ship, including consumable goods, goods carried for sale to passengers and crew members, fuel and lubricants, but excluding ship’s equipment and ship’s spare parts. The ship’s equipment is articles other than the ship’s spare parts, on board of ship for use thereon, which are removable but not of consumable nature. This includes accessories such as lifeboats, life-saving devices, furniture, ship’s apparel, and similar items. The ship’s spare parts include articles for repair or replacement of equipment on board the ship. Although paints and chemicals are used for vessel’s technical maintenance and repair, Ukrainian customs office considers these articles as ship’s stores, and therefore, as subject to declaration.

3 MACN Guide – Ukraine

TOP 5 pieces of advice to the Master in case of potential conflict with Ukrainian customs offices:

1. Notify the vessel’s P&I Club and MACN Local HelpDesk asking for assistance.

2. Inform the customs officer that you would like to use the interpreter for your native language (such right is prescribed by art. 268 of the Code of Administrative Offenses).

3. Inform the customs officer that you would like to use the legal assistance from attorney-at-law and you refrain from giving any statements, documents etc. without a lawyer.

4. Do not submit any documents to the customs officers (like BDNs, fuel analysis reports etc.) based on their verbal request. Ask for a written request with reference to the Customs Code.

5. If you sign any document without a lawyer always sign with the remark: “for receipt only, without recognition of liability”.

Ecological inspections

Ecological control: no inspections of ballast waters in 2020

Attempts of ecologists to control the ballast waters operations in Ukrainian ports in 2020 has not been witnessed. This is due to the liquidation of the Ecological Inspectorate for Black Sea District, whose powers have been transferred to Odesa regional ecological inspectorate

ECOLOGICAL CONTROL: OIL SPILLS AND CONTROL OF BALLAST WATERS

General overview

Ukraine is party to MARPOL 73/78 and not party to the Ballast Waters Management Convention of 2004 (“BWM Convention”), which gained legal force on 8th of September 2017.

Notwithstanding to aforesaid, during 2019 the Ukrainian Government made significant changes to the legislation regulating control of ships by ecological authorities, namely:

1. Rules on Protection of Sea Waters from Pollution3 (it was directly declared that segregated ballast shall not be subject of control by state authorities).

2. Procedure of taking samples of waters and conducting its analysis4 has been approved on 21.08.2019 (before that there was no clear procedure of taking samples and its analysis, which caused numerous irregularities by ecological authorities);

3. Procedure of communication of Ukrainian Sea Port Authority (USPA) and State Ecological Inspectorate in case of detecting of sea pollution by vessels in Ukrainian ports5 (it was prescribed that vessel’s inspection in case of sea pollution could be conducted mutually by PSC inspector and ecological inspector).

In case of oil/palm oil spill

1. If during cargo operations in Ukrainian port the spill has occurred and water area was polluted, immediately notify your P&I Club as this accident is usually covered by the P&I cover.

2. If fines for sea pollution is calculated based on the volume of spilled substance, it is important to invite an independent surveyor for participation in collection of spilled substance, taking samples and making relevant analysis and measurements.

3 https://zakon.rada.gov.ua/laws/show/269-96-%D0%BF#Text 4 https://zakon.rada.gov.ua/laws/show/828-2019-%D0%BF#Text 5 https://zakon.rada.gov.ua/laws/show/670-2019-%D0%BF#Text 4 MACN Guide – Ukraine

3. If port authorities do not allow the Master/Owners to invite the independent surveyor or do not allow the surveyor to participate in the liquidation of spill, issue the letter of protest in the name of USPA copying Maritime Administration of Ukraine and relevant Harbour Master. Ask your agent to assist in delivery of the LOP to the relevant authorities by e-mail and courier.

4. Please be informed that claims based on sea pollution are qualified as maritime claims in Ukraine and could be the legal ground for the vessel’s arrest based on the art. 42 of the Merchant Shipping Code of Ukraine and Brussels Convention on Arrest of Sea-Going Ships of 1952. Therefore, it is recommended to notify your P&I Club for appointment of a local lawyer and readiness to issue the Letter of Guarantee and Undertaking, or the bank’s guarantee.

If ecologists try to control ballast water operations

Segregated ballast shall not be subject of control by Ukrainian ecological or other authorities if it was taken outside Ukrainian territorial waters. Please ensure that BWM Plan is available on board and relevant records are maintained as required by BWM Convention. Crewmembers should be ready to provide the ecologists with vessel’s report proving that ballast has been exchanged outside Ukrainian territorial waters and no clean/dirty ballast is available on board.

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