India: Keeping Wind In The Sails During The COVID-19 Pandemic
India: On 23rd March 2020, Prime Minister Narendra Modi’s announcement of a 21-day nation-wide lockdown for breaking the chain of infection resulting from the coronavirus disease (COVID-19) created confusion as to its nature and triggered a nation-wide panic to buy essentials. The mass flocking of people around shops prompted the Prime Minister and the Ministry of Home Affairs to clarify that the lockdown was not to affect, inter alia, the transportation of all goods, essential and non-essential.
Interestingly, this pandemic has brought forth solidarity and gratitude towards the courageous and selfless work of the healthcare professionals and law enforcement officers, but little or no admiration has been extended to the crucial role of the shipping industry in ensuring the availability of essential goods to sustain the national and international needs.
Impact of COVID-19 on the shipping industry
The shipping industry is critical to the global supply chain due to its efficiency and cost-effectiveness in facilitating the carriage of over 80 per cent of the global trade. Besides, the shipping industry tends not only to the transportation of goods but also to the transit of passengers. Also, the industry is among the most regulated, where ships are subject to the mandate and inspection of the Flag State, Coastal State, and Port State—albeit in differing proportions and on a myriad of issues, including public health.
The impact of COVID-19 on the shipping industry is not negligible. It has been over three months since COVID-19 originated in China, yet China continues to face a reduction in the movement of cargo between the rest of the world and itself, declining freight rates for big crude tankers and the threat of repudiation of a substantial number of ship deliveries—an economic blow to the world’s largest shipbuilding nation.
The alarming escalation COVID-19 cases specifically placed suspicion on cruise ships, such as MSC Lirica, MS Braemar and La Romana, which faced the adverse situation of being turned away from disembarking passengers and crew. Several ports around the world were influenced to restrict cruise ship arrivals. As a result of being denied entry into ports, these ships became ‘floating quarantine zones,’ where a large number of passengers have been stranded and some have even died aboard.
Mr Kitack Lim, the Secretary-General of International Maritime Organisation—a United Nations specialised agency responsible for global standard-setting for the safety, security and environmental performance of international shipping—has stressed on the ability of shipping services and seafarers to deliver vital goods to tackle the COVID-19 pandemic. Mr Lim has rightly remarked that the seafarers tending to the needs of the world during this health crisis are in the “frontline of this calamity” and has recommended Governments and relevant national authorities to designate professional seafarers and marine personnel, regardless of nationality when in their jurisdiction, as “key workers” providing an essential service.
India’s position and approach
India has a coastline of 7517 kilometres and houses 12 major ports and 187 minor ports. Since shipping and navigation and major ports fall under the Union List of the Seventh Schedule of the Constitution of India, the power to legislate on these subjects lies exclusively with the Parliament of India. The Ministry of Shipping is responsible for formulating policies and programmes related to the shipping and port sector of India, while its attached office, the Directorate General of Shipping (DGS), deals with the implementation of shipping policy and legislation. Unlike the major ports, the administration, operation and management of minor ports lies with various State Governments.
The different administration in the different ports of India, particularly in situations such as the threat of COVID-19, raises concerns of uniformity of measures taken to ensure safety, hygiene and sanitation of the ports themselves and ships calling therein. Item 28 of the Union List of the Constitution of India strives to address these concerns by placing the subject of ‘port quarantine, including hospitals connected therewith; seamen’s and marine hospitals’ under the ambit of Central legislation.
Section 6(1)(p) of the Indian Ports Act, 1908, vests the Central Government with the power to make necessary rules to prevent the danger to public health by the introduction, spread and conveyance of any infectious or contagious disease from ships arriving at, or being in, or sailing from any port. Exercising this power, the Central Government promulgated the Indian Port Health Rules, 1955 (IPHR), which require the master of any ship fitted with a suitable wireless transmitting apparatus to send the applicable information, including cases of sickness or death, within 4 to 12 hours before the arrival of the ship, to the Health Officer of the port to which the ship is proceeding. Also, the IPHR mandates all ships leaving any port of India to possess the “Deratting Certificate” (DC) or the “Deratting Exemption Certificate” (DEC) issued by the Health Authority of the port, as approved for that purpose by the International Sanitary Regulations, 1951(ISR).
The ISR was succeeded by the International Health Regulations, 2005 (IHR). India, a Member State of the World Health Organisation, has adopted the IHR, which seeks to protect global public health and strengthen the response to the international spread of disease. In 2007 when the IHR entered into force, its provisions replaced the DC or DEC with the ‘Ship Sanitation Control Certificate'(SSCC) or ‘Ship Sanitation Control Exemption Certificate’(SSCEC). The SSCC is issued on detection of evidence of a public health risk on board a ship and after required control measures have been satisfactorily completed, while the SSCEC is issued in the absence of any such evidence onboard.
The value of SSCC or SSCEC is accounted by the Maritime Declaration of Health (MDH), which is required to be completed and submitted by a master of a ship to the concerned Health Authorities of the port and the port authorities, at least 72 hours before arrival at its first port of call in India. Importantly, the master is liable for prosecution under applicable laws in case the information provided in the MDH is incorrect or does not reflect the factual conditions of health of persons on board. This obligation flows from the instructions to all minor and major ports to deal with the COVID-19 pandemic, as issued by the DGS.
Indian ships undertaking international voyages have been advised to develop a written outbreak management plan considering the requisites of isolating suspected cases on board. Though India has not completely banned the entry of ships into Indian ports, any international cruise ship or any member of its crew or any passenger therein having travel history to any COVID-19 affected countries—which include almost all countries presently—are not permitted to enter any Indian Port. Besides, the quarantine period of 14 days is only imposed on ships arriving from any port in China, while those ships which arrive from ports of infected countries within 14 days of departure are subject to certain specified additional measures.
As seafarers remain among the most affected, the DGS has instructed them to avoid shore leave in infected regions and to use shore leave only in exigencies with necessary precautions. Seafarers who travelled to infected regions are advised to self-quarantine for at least 14 days. Seafarers belonging to countries to which travel has been restricted by the Ministry of External Affairs are not to sign-off. While no such restriction applies to Indian seafarers in ports in India, they continue to face the precarious condition of being trapped at sea due to borders being shut in other countries amidst the growing demand for supplies.
Besides, the lockdown caused delays in the evacuation of the goods from ports and detention of containers. Hence, the Ministry of Shipping has advised the shipping lines to not impose any container detention charges on import and export shipments till 14th April 2020, in addition to free time arrangements agreed and availed as part of any negotiated contractual terms.
Balancing the scales
The lockdown has reinstated the importance of having endless access to essential commodities, such as food and medical supplies, and the indispensable role of the shipping sector in meeting the multiplying need for them. Though the lockdown, as a precautionary measure to contain the community spread of COVID-19 while allowing shipping operations, may be reasonable, the prohibitions on crew changes and seafarers leaving ships must be balanced with easing the process of disembarkation of seafarers. In that regard, balancing the scales are essential for keeping up the sails through the COVID-19 pandemic!
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Sindhura Natesha Polepalli is a Maritime Legal Consultant at the Directorate General of Shipping (Ministry of Shipping, Government of India). She holds a Master of Laws (LL.M.) with distinction in International Maritime Law from the IMO-International Maritime Law Institute, Malta.