Under the Port State Control (PSC), inspection of ships in port is done by the Port State Control Officer(PSCO). Annual data of Paris MoU confirms that a total of 74,713 deficiencies were recorded during port state control inspections in the year 2007. These deficiencies leads to 1,250 detentions in the same year. Detention of the ship is the last action that a PSCO would be taken upon finding deficiencies aboard the vessel.
Action a PSCO may put on a ship with deficiencies are:
Deficiencies can be corrected within 14 days for minor violation
1. Under specific conditions, deficiencies can be rectified when the ship arrives at the next port
2. Deficiencies must be rectified before the ship can depart the port;
3. Detention of the ship
Contract being discharged under detention
Ships visiting to port are generally under a some kind of contract, chartered or responsible for carrying goods as the carrier. Detention means the ship & the cargo would not be able to complete the contract what is agreed. Ships under detention cannot resume the voyage & arrive at the destination port as specified in the contract in the specific time allocated in the contract. As a result of detention the contract is discharged, & it may or may not be discharged by frustration.
Contract discharged by frustration
A contract discharged by frustration is well explained in the Taylor v Caldwell, where the contract between Taylor & Caldwell is held frustrated. It is because of the concert hall which is chartered by the Taylor from Caldwell is destroyed without fault of either party & the contract is discharged by frustration.
Discharged by frustration for being out of control
A voyage contract may be discharged by frustration if the ship is out of control of the party involved in the contract.
According to the Texas Company v. Hogarth Shipping Corporation a voyage charter is carrying out in 1915 while the British government take control of the vessel when the vessel is in the British waters. This request resulted in another vessel being chartered to complete the contract. The court held that the original contract is being frustrated as the original vessel is out of control of the party involved.
This case shows that the contract may be discharged by frustration while the control of the vessel is under control of a third party which has no relation with the contracted parties.
Discharged by frustration for extremely long time delay
The contract can be discharged by frustration if the detention lasts longer enough so that the frustration doctrine to be applied. In Jackson v Union Marine Insurance Co. the contract is sustained frustrated. When the vessel went aground & need a time of 8 months to repair the ship, the delay is long enough, the cargo can be transported by the another charter in a much shorter time. The length of the delay is long enough to evoke the frustration doctrine.
Self-induced detention cannot discharge the contract through frustration
The contract should not be discharged by frustration if it is caused by the self-induced detention.
Criteria for detaining a ship by PSCO
The main basis for the detention is that the ship is considered unsafe to proceed to the sea & that the deficiencies on a ship are observed serious by the inspector. These deficiencies must be corrected before the ship may sail again. In the annual report of the Paris MOU, it stated that the major deficiencies are:
1. Certification of crew
3. Maritime Security
4. Marine Pollution and Environment
5. Working and Living Condition
These deficiencies are the most common affair of the PSCO. When these deficiencies are clearly dangerous to safety, health, or the environment, the PSCO would require the risk to be corrected before the ship can sail or hold up the vessel or even issue a formal ban on the ship to operate. As these defects are self induced by the ship owner detention under PSC for the basis listed above is not able to reach a frustration to discharge the contract on the vessel.
Short time period of detention cannot discharge the contract through frustration
The contract cannot be discharged by frustration if the time under detention is not too long to enrage the frustration doctrine.
PSC requirement upon detaining a ship
The PSC needs a ship being detained to correct the defects which caused the detention. If the defects cannot be corrected in the port of inspection, the port state would permit the ship to proceed further to another port under special condition. The ship become free of detention only when all the fine induced by the inspection & detention is paid by the ship owner.
No party wants a long detention
Logically, both the port state & the ship owner don’t want the ship to be hold up for a long time. For the port state, the danger of the ship might influence the condition of the port, & the shipowner knows that the vessel can only make money when it is sailing. Neither party would have the motive to keep the vessel being detained for long period of time. Therefore, the time of detention is usually not long enough to cause the detention doctrine to discharge a contract.
Discharge of contract under detention in PSC generally do not frustrate the voyage contract
In conclusion, a voyage contract can be frustrated when the ship is out of control of the parties in the contract. The time delayed is long enough to cause the frustration doctrine. Under PSC, detention is mostly caused by self-induced defects which is neither unforeseeable & unexpected, & the time for detention is not likely being long enough to cause the frustration doctrine. Therefore, detention of a ship by the PSC can’t discharge a voyage contract by frustration.