Security - BIMCO Bulletin

security

SECURITY The severe risks and repercussions of switching off the AIS. By Mette Kronholm Frænde, Communications Manager and Editor at BIMCO. Many shipowners, operators and crews are unaware that a small security risk is not a valid reason for switching off the ship’s Automatic Identification System (AIS). Even more are oblivious to the consequences of doing so – which range from heavy fines to detention – if smuggling is suspected, vessels pose a safety risk in a high-traffic area, a charter party has been breached, or there has been non-compliance with individual country requirements. According to the International Convention for the Safety of Life at Sea – SOLAS – a commercial ship’s AIS should be on at all times, except if the ship is in imminent security danger and if, for example, the Master perceives there is a threat of piracy, hijack, kidnapping or similar. If this action becomes necessary, it should be recorded in the ship’s logbook along with reasons for making the decision. However, switching off the AIS is a relatively common occurrence in the industry. As a result, an increasing number of nations and ports are issuing circulars underlining the SOLAS requirement that ships’ AIS must never be switched off in their territorial waters or ports, and that they will implement fines for doing so. Countries including Singapore, Indonesia, Hong Kong and Panama have already issued such circulars. Ashok Srinivasan, Manager, Maritime Safety and Security at BIMCO, says: “Switching off the AIS is inviting a risk of a fine, as you are potentially breaching the national requirements. But even worse, you are increasing the risk of collision. AIS greatly assists the bridge team and a target without AIS information can send confusing signals to the other ships.” While the AIS is not designed as a navigation tool for collision avoidance, many ships do use it in this way, says Srinivasan. Therefore, in a busy lane, if 20 ships are passing through and using AIS for tracking each other, if one ship suddenly switches it off while another is in the middle of the lane, the risk of collision is high. “Added to this, you may be breaching the charter party if it includes a clause saying the AIS must not be switched off. And lastly, you may be detained, as the nation in question might suspect that you are engaging in illegal activity.” Heavy fines to combat smuggling Srinivasan believes that to comply with the regulations, the AIS should be left on for likely 99% of the time. “A rising number of national governments are currently issuing circulars alerting ships to not switch the AIS off. Switching it off could send a signal that the ship is seeking to hide an activity such as illegal fishing, dealing with a sanctioned country, carrying Iranian oil to North Korea or smuggling other contraband, and therefore wishing to hide the ship’s location and route,” he says. “It’s a big dilemma for both shipowners and crew that many are unaware of and switch it off at the smallest perceived risk. Many crews have simply not really thought about the fact that the threat in Singapore and Indonesian waters, for example, is just not big enough to justify the action.” Indonesia is currently fighting the illegal smuggling of goods. Small ships involved in such activity load crude oil or other contraband in the country with the aim of selling it heavily below market prices in Singapore or Malaysia. In the process, the ships switch off the AIS to go unidentified and “disappear” while engaging in the activity. To combat the smuggling, the authorities have issued circulars saying that ships must keep the AIS on at all times when transiting Indonesian waters, as they believe that the threat of piracy or risk of hijack, or kidnapping of the crew, is not big enough. There is a threat, but it usually extends to thieves boarding the ship to steal equipment. “Failing to keep the AIS on could lead to heavy fines,” says Srinivasan. “While the authorities do not specify the size of the fines, according to reports, they could go up to 20,000 US dollars.” BIMCO AIS clause will ensure fairness The Office of Foreign Assets Control (OFAC), the financial intelligence and enforcement agency of the US Treasury Department, has also recently issued guidelines backing the SOLAS position that ships must keep the AIS on at all times, unless in immediate danger. Based on US foreign policy and national security goals, OFAC enforces economic and trade sanctions against targeted foreign countries and regimes, terrorists, international narcotics traffickers and those engaged in activities that pose a threat to the national security, foreign policy or economy of the United States; guidelines from OFAC are taken very serious by the industry. As a consequence, the shipping industry has seen a surge in contracts that include an AIS clause. While it could be argued that such a clause states the obvious – that the AIS should not be switched off – in many instances, it gives the charterer the ability to terminate a contract if the AIS is switched off even for a moment. Grant Hunter, Head of Contracts and Clauses at BIMCO, says: “The problem we have seen emerging is that the AIS clauses that many have started adding to the contracts are badly drafted.” From the charterers’ point of view, he says, if it is discovered that the shipowner has switched off the AIS, or if the signal drops from the AIS system on a ship, they have the right to terminate the contract. “This is fairly draconian, as there are circumstances when the ship could legitimately switch it off, such as entering high pirate-risk areas. Moreover, there are also many occasions where the system does not properly transmit or the signal is not properly received, for all sort of technical reasons.” To counter the use of poorly worded AIS clauses that may expose owners to the risk of contractual termination even in cases where a ship’s AIS has been turned off for legitimate reasons, BIMCO has drafted an AIS “Switch Off” Clause which is expected to be published in July. “What we are trying to achieve is to make sure we carve out the procedures so – whatever we have in the AIS clause – they properly address the rights an owner has to legitimately switch off an AIS, but also recognising that sometimes the signal does not transmit, which should not be a reason for the charterer to be able to terminate the agreement,” says Hunter. “This way, the clauses that are not fair and balanced can be replaced with something that is properly worded and fair to both parties, while preventing contracts being terminated for unjustifiable reasons.” What is AIS? As per SOLAS Chapter V, regulation 19, all ships of 300 GT and more on international voyages, cargo ships of 500 GT and more not engaged on international voyages and all passenger ships, must be equipped with an operational Automatic Identification System (AIS). The AIS must transmit and receive information including the ship’s identity, type, position, course, speed, navigational status and other safety-related information. It must also monitor and track other ships using the information provided by them. As per SOLAS, ships fitted with AIS must always maintain it in operation except where international agreements, rules or standards provide for the protection of navigational information.