Vessel detention occurs from time to time without permission in Malaysian and Indonesian waters. This article will try to analyze the direct reasons for ships being detained, sort out the ideas for handling cases, and provide loss prevention suggestions in combination with the reasons for frequent detention of ships.
1. Reasons for the detention of the ship
According to an August 2022 circular from the Singapore Naval Information Fusion Centre (IFC), between January and July this year, 10 foreign merchant ships, including five freighters and five oil tankers, were detained by Indonesian authorities for unauthorized berthing in the eastern part of Tanjung Berakit [1]. In September 2022, the first ship of the association was also detained in Malaysian waters, and it is reported that the ship carried out a ballast voyage to load goods at Kuantan Port in Malaysia. On the way to the port of loading, the vessel temporarily anchored to avoid strong winds and waves, but was then detained by the Malaysian Maritime Enforcement Agency (MMEA) for alleged violation of Section 491B(1) (L) of the Malaysian Merchant Shipping Ordinance 1952 [2].
In terms of nature, the above cases are close to foreign ships suspected of violating the laws and regulations of berthing in the territorial waters of other countries and were required to cooperate with the investigation. This led to the situation in which the original ship certificate was taken away, the crew was taken ashore to cooperate with the investigation, and the ship was detained.
2. Basic ideas for case handling
The authorities will generally make a decision on whether to impose a penalty after completing the investigation process. In Malaysia, some cases are decided by the courts. Unless there are serious violations or several violations, the amount of fines is generally not too high. According to SPICA, a fine of 50,000 ringgit (about $10,700) for a violation in Malaysia is generally fined. In Indonesia, the fine is up to 600 million rupiah (about 39,000 US dollars), and the captain faces up to 5 years in prison; if there are other violations, the shipowner will also face an additional fine of up to 200 million rupiah (about 13,000 US dollars), and the captain will also face 1 year in prison.
After paying the fine, the ship is generally released. Therefore, the speed of the ship’s “undetention” largely depends on the progress of the investigation by the authorities. According to the experience of the association, the investigation by the Malaysian authorities generally lasts 14 working days, and the shipowner can provide a bank guarantee or deposit money to the court to apply for the release of the ship before the amount of the fine is finalized. Indonesia’s law enforcement agency is the Navy, which usually does not start investigations until three days after the ship is detained; Indonesian authorities may agree to the shipowner’s application for speedy closure; If the case goes to court, it can take months or even a year.
In order to shorten the investigation time and reduce the loss of shipping schedules, on the one hand, the shipowner should cooperate with the authorities in the investigation and report truthfully; on the other hand, experienced agents should be appointed to communicate and coordinate with relevant departments. If the member does not have a familiar agent in the local area, the association can ask the general agent to recommend one or two agents for the shipowner to choose; Tongdai can also provide necessary guidance to agents; In the event of a legal dispute (such as an unusually high fine), the association can also recommend a local lawyer to assist in handling it.
3. Loss prevention suggestions
Although the United Nations Convention on the Law of the Sea provides that “all States, whether coastal or landlocked, shall have the right to pass through their territorial waters without harm under the limits of this Convention”, it also specifies the meaning of “passage” in Article 18:
- Passage means navigation through territorial waters for the following purposes: (a) passing through territorial waters without entering inland waters or calling at berths or port facilities other than inland waters; or (b) to or out of inland waters or to call at such berthing or port facilities.
- Adoption should continue non-stop and rapidly. Including docking and anchoring, but only for the purpose of rescuing persons, ships or aircraft incidental to ordinary navigation or necessary for force majeure or distress, or for the rescue of persons, ships or aircraft in distress or distress.
That is, in principle, it should be “continued without interruption and speed”, and only in specific cases “stopping and anchoring” falls under the above-mentioned “pass”, that is, “only to the extent that it occurs incidentally to ordinary navigation or is necessary for force majeure or distress, or for the purpose of rescuing persons, ships or aircraft in distress or distress.” Thus, while a State party’s ship has the right to pass through its territorial waters without harm, it does not necessarily have the right to berth in the territorial waters of other States without permission.
Permission is generally required for berthing in the territorial waters of other countries, and the regulations of different countries vary from country to country: our country’s Maritime Traffic Safety Law stipulates: “Foreign ships temporarily entering non-open waters shall obtain permission in accordance with the provisions of the State Council on the import and export ports of ships.” Section 491B(1) of the Malaysian Merchant Shipping Ordinance 1952 provides that “a vessel engaged in or intending to engage in any of the following activities in Malaysian waters[3] shall notify the Director of Marine: (A) dredging、…… (L) Other activities that the Director of Marine determines need to be notified. “Subparagraph (L) is usually used as the basis for a penalty for unauthorized berthing in Malaysian waters. To avoid penalties, if you need to anchor in the territorial waters of other countries, you should contact the local agent in time to verify whether permission is required, and do not take chances or blindly trust past experience (Malaysia and Indonesia have been strict in recent years).
Sometimes there may be different understandings of whether or not it is in the territorial waters of a country, and the authorities’ determination of the scope of territorial waters sometimes exceeds the understanding of the crew. According to Malaysia’s experience, the so-called “Singapore Port Outer Anchorage (OPL)” no longer exists, and the sea area is located at the junction of Singapore, Malaysia and Indonesia. In addition, in July 2022, Malaysia deposited a table of geographical coordinates with the UN Secretary-General in accordance with the United Nations Convention on the Law of the Sea [4]. According to the coordinate table, the following schematic diagram of the area prone to anchoring is drawn, which is for general reference only and is not used as the basis for selecting the anchorage area.
In addition, according to Indonesia’s Tongdai, there was a ship 60 nautical miles away from the Indonesian coastline, believing that the ship’s position was no longer possible in Indonesian waters, but it was still considered by the Indonesian Navy to be in its territorial waters, because Indonesia is an archipelago country, and it also used some disputed islands as its territory to delineate the baseline, resulting in the sea area that the ship considered to be the “high seas” was also recognized as territorial waters.
In general, ships are exposed to accident-prone areas (e.g., the eastern waters of Johor in Malaysia, around Bintan, Indonesia, etc.). For more areas with a high incidence of penalties, please refer to [Risk Warning] The detention of ships at the East Anchorage outside the port boundary of Singapore continues) Before berthing, you should check with the agent in time whether the ship is in the sea area where the authorities determine that it is necessary to apply for a berthing permit, the latest local requirements for the berthing of foreign ships, and strictly abide by local laws and regulations
4. Conclusion
In view of the time-consuming and unpredictable penalty procedures in Malaysia and Indonesia (for details, please refer to [Risk Warning] Continue to pay attention to the risk of recent detention in Indonesia). Therefore, if a membership is detained locally due to unauthorized berthing, it is recommended that members contact the association in a timely manner.
