Malaysian Shipping Notice MSN 3/2022 - Amendment To Recognised Security Organisation (RSO) Instruction Under Section 249x of the Merchant Shipping Ordinance (MSO 1952) for Ships Verification and Certification
The third Malaysian Shipping Notice of 2022, MSN 3/2022, deals expressly with Recognized Security Organizations (RSOs). The provisions entered into force on 22 April 2022, and revoked the earlier Malaysia Shipping Notice MSN 08/2018. Attached to MSN3/2022 is Instruction 1/2022, also titled 'Instruction to carry out review and approve security plan, verification and certification required under the Merchant Shipping Ordinance (MSO 1952) and International Convention on behalf of Malaysia Government (Revision 1.2022)'. Therefore the content of IMSML Website Article 8/2022 will focus on the salient details of the First Revision of 2022.
A RSO is a ‘Designated Authority’ (DA) empowered to act on behalf of the Marine Department (MARDEPT) to carry out ship security related activities under the statutory authorization of Section 249x Merchant Shipping Ordinance (MSO 1952) and Act A1316, i.e. (Merchant Shipping (Amendment and Extension) Act 2007, see Paragraph 1.1. A DA has the statutory duty to maintain proper communication to complete all verification under the International Ships and Port Facility Security Code (ISPS Code), Part A 19.1, see Paragraph 1.2.1. Note that where there are ships sailing fixed routes between designated marine facilities on (short) international voyages, Regulation 12.1 of Chapter XI-2 will not apply, see Paragraph 6.0 on ‘Equivalent Security Arrangements’.
Although technically dealing with ‘security’, the ISPS Code was implemented through the back-door of a convention dealing specifically with ‘safety’. The ISOS Code was implemented in Malaysia, as Part V of the Merchant Shipping Ordinance 1952 (MSO 1952) and Chapter XI-2 of the International Convention for the Safety of Life at Sea (SOLAS) 1974, see Paragraph 2.1. For compliance with the ISPS Code, Malaysian flagged vessels operating in international jurisdictional waters or international coastal voyage must follow the national regulations of the country where it is operating, see Paragraph 2.2.
In addition to ensuring compliance with the ISPS Code, RSOs are also authorised to carry out the secondary duty of providing assistance to any ship or company on security matters, as defined in Reg IX/1 of SOLAS 74. This includes Ship Security Assessment (SSA) and preparation of the Ship Security Plan (SSP) without any additional authorization by the DA. However, in order to avoid a conflict of interest, where the RSO has provided services to a specific ship, that RSO is not allowed to approve that particular ship’s security plan, or amendments to that ship’s security plans. There is also a further prohibition on issuing the International Ship Security Certificate (ISSC) to that said ship as this would be a case of further conflict of interest by the RSO in its statutory regulatory role of assisting MARDEPT, see Paragraph 3.2.
In summary, this is what a RSO is authorised to do in assisting MARDEPT meet its statutory regulatory obligations under Paragraph 4.1:
[1] Review and approve ship security plans;
[2] Conduct ship security verifications;
[3] Issue International Ship Security Certificate (ISSC). Note that the issuance for a Malaysian flagged ship by the RSO is in accordance with the ISPS Code and MSO 1952 on behalf of the DA.
Both SSP and SSA have to comply with the requirements stipulated in Part A of the ISPS Code. An interim ISSC can be issued when the ship has complied with Section 19.4 of the ISPS Code. The interim ISSC is only valid for 6 months, or until a full-term certificate is issued (whichever comes first), see Paragraph 4.5. The interim certificate can be extended without prior approval from the DA under Paragraph 4.5. However, this extension is subject to 3 conditions:
[1] The operational area of the ship is exclusively with Malaysian waters. For this purpose, this includes the Exclusive Economic Zone (EEZ) or Joint Development Area, see Paragraph 4.5.1;
[2] The extension cannot be given for more than 3 months, see Paragraph 4.5.2;
[3] Only a company’s Authorised Officer or the RSO’s Malaysian Auditor can apply for an extension, see Paragraph 4.5.3.
By virtue of Paragraph 4.8, the RSO is also under a duty to ensure that the Ship Security Alert System (SSAS) is working properly. This has to be confirmed an actual real world test. The results of the test are to be sent to BOTH:
[1] The Malaysia Maritime Communication Centre (MMCC) at mmcc@marine.gov.my ; AND
[2] The DA via the ISPS Unit at isps@marine.gov.my
Either interim certificate or the full term certificate issued by the RSO may be revoked by the DA, at any time, see Paragraph 4.9. Although that provision does not contain 'express direction' for the DA to give reasons for the revocation, it is submitted that if the revocation was made in good faith, reasons in writing would have be given. This would be evidence that the administrative decision taken by the regulatory body was reasonable, ie taking into account only relevant facts. This would therefore satisfy the ‘Wednesbury’ Test, see Associate Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (Court of Appeal) per Lord Greene, Lord Justice Somervell and Justice Singleton, that the decision was made reasonably based on factual evidence.
Any personnel hired to work for the RSO have to perform statutory regulatory work which includes reviewing and making approvals. Therefore, such persons would have to meet the minimum formal education requirements, see Part 2, Section 4.2.5 of the Code for Recognized Organizations, see Paragraph 5.1. In carrying out these statutory duties, RSO personnel have to be independent. Any potential bias or conflict of interest has to be dealt with. For example, RSO personnel that have been involved in the preparation of the SSA or SSP, are prohibited from approval of such documents, see Paragraph 5.2.
A couple of additional skills that would be useful are:
[1] Appropriate of ship operations. The example given is largely operational security knowledge under Chapter XI-2, Part A of the ISPS Code. Another example is legal knowledge of National Legislation and International Conventions on security related matters, see Paragraph 5.3;
[2] Knowledge of equipment for security and surveillance, as well as its operational limitations.This included recognition and detection of weapons, dangerous substances and devices, see Paragraph 5.4.
Note that the details of qualifications and skill set are set out in Appendix I. The list of recognised RSOs are found in Appendix II and include:
[1] Ships Classification Malaysia;
[2] Bureau Veritas (M) Sdn Bhd;
[3] DNV International Sdn Bhd;
[4] ABS Classification Malaysia Sdn Bhd;
[5] Nippon Kaiji Kyokai Class NK (M) Sdn Bhd;
[6] Lloyd’s Register of Shipping (M) Berhad;
[7] Rina Malaysia Sdn Bhd;
[8] China Classification Society (M) Sdn Bhd;
[9] KR Malaysia Classification and Certification Sdn Bhd;
[10] IRCLASS (Malaysia) Sdn Bhd.
Last but not least, a DA may appoint a RSO it deems fit as a security organisation if it has expertise in security matters in the context of ship operations, see Paragraph 7.1. This appointment may be revoked at any time if the conditions imposed upon appointment are not met, see Paragraph 7.4. A DA also has a supervisory role over the RSO. For example, a DA may examine and verify the RSO performance with an Unscheduled Security Verification (USV). This enables a DA to ensure a RSO’s compliance with its instruction(s) given under Section 249x of the MSO 1952, see Paragraph 7.2. Sometimes, working jointly can be more effective for the purposes of verifying work. This is reflected in authorisation for the DA and RSO to conduct joint ship security verification at various stages. For example, during interim, initial intermediate, additional or renewal as a sampling when it is deemed necessary, see Paragraph 7.3.
Thank you for reading IMSML Website Article 8/2022
Stay tuned for the next IMSML Website Article 9/2022:
Malaysian Shipping Notice MSN 9/2022 - Crew Change Instructions (Amendments)
Signing-off for today,
Dr Irwin Ooi Ui Joo, LL.B(Hons.); LL.M (Cardiff); Ph.D (Cardiff); CMILT
Professor of Maritime and Transport Law
Head of the Centre for Advocacy and Dispute Resolution
Faculty of Law
Universiti Teknologi MARA Shah Alam
Selangor, Malaysia
12 October 2022
Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my