I. Introduction

Clearly stated in Article 94 UNCLOS 1982 that one of the duties of flag state is to take such measures for ships flying its flag as are necessary to ensure safety at sea, which required to conform to generally accepted international regulations (UNCLOS, 1982). Having consider that States should not only become party to the convention, but also fully implemented their obligations, IMO establish Resolution A.996(25) Code for the Implementation of Mandatory IMO Instruments. Based on this code, there are strategies that should be developed by the States in order to achieve objective of the code, which is enhancing global maritime safety and protection of marine environment (IMO, 2007). Indonesia through its maritime administration should establish system which develop this strategy to fulfill their duty as flag state. This paper try to compare four strategies mention in Resolution A.996(25) with system established in Indonesia in general; and specifically explore the consequence of the code for Indonesia in terms of casualty investigation.

II. Strategy for enhancing maritime safety and protection of marine environment

Based on Resolution A.996(25), there are 4 strategies should be developed by the States. First strategy, implementation and enforcement of IMO convention; Implementation of flag state responsibility cover many aspect, such as convention interpretation, education and manning, flag state inspection, certification issues,  authorization and monitoring RO, and casualty investigation. However, these implementation and enforcement are fully depends on ability and willingness of member parties. Contracting Governments enforce the provisions of IMO conventions as far as their own ships are concerned and also set the penalties for infringements, where these are applicable (IMO, 2009). Ratify a Convention and bring it into full and complete effect through internal law is not easy for contracting government. To establish effective maritime legislation, after set it up, it should be easy to change and keep updated with IMO change, set up IMO legislative tracking, attend IMO meeting and maintain effective communication with other parts of government (Belcher, 2009).

Survey and certification is one of the ways to enforce standard developed by administration. In some cases, countries which are lack of expertise and experience have found convenience in delegating their functions to Recognized Organizations (Villanueva, 2004). Many developed administrations also decided to delegate part of their function to RO, in order to effectively expand their capabilities on worldwide basis. RO such as classification society have believed as professional solution for global surveyor network and technical expertise (Schlott, 2009). However, some problems arise regarding statutory work delegation. For example, audit of Denmark shows the needs of more effective monitoring of statutory survey record held by RO (VIMSAS-Denmark, 2007). Therefore in term of authorization, Maritime Administration should fully refer to Resolution A.789(19) “Specifications on the survey and certification functions of recognized organizations acting on behalf of  administrations” and Resolution A.739(18) “Guidelines for the authorization of organizations acting on behalf of the administration” (Schlott, 2009).

Second strategy, adherence to international recommendations; apart from Mandatory instrument such as Load Lines, SOLAS and COLREG, flag state should also refer to international recommendation such as IMO resolution or circular which contain guidelines or other non mandatory code.

Thirdly is continuous review and verification of international obligation compliance effectiveness. One way of review is by evaluating port state control statistics. PSC usually published annual reports that contain statistics on the performance of flag States and RO. Casualty statistics also can give picture of compliance effectiveness. In addition, comprehensive measurement of flag State ability to enact and effectively enforce maritime legislation is through Voluntary IMO Member State Audit Scheme. The importance of VIMSAS in verification of flag State compliance is emphasized by IMO (Mansell, 2009). Purpose of VIMSAS is not to shame or point a finger at a state, but to assist them in fulfilling their duties and obligations which promotes flag State performance. The result of this audit is known only to the State concerned, auditors and IMO secretariat, and reports from audits are published as anonymous (Franson, 2009).

Last strategy is achievement, maintenance and improvement of overall organizational performance and capability. Human resource development will influence organizational performance; and good quality system can assure achievement and maintenance of organization performance. Administration can apply ISO 90001 or other equivalent quality system. Furthermore, improvement can be done through introduce new public management principle. It is move away from administration to achievement of result, change from classic bureaucracy to flexibility and defines organizational and personal objectives through measurable performance indicator (Schröder, 2008). Although almost impossible to implement all of NPM strategies, many administration in developing countries are implementing selected aspects of NPM notably granting more autonomy to public sector organizations, emphasis on results, accountability for performance and results, introduce competition, contracting, and customer orientation (Singh,2001). Multi-state cooperation for capacity-building is one example of new public management implementation to overcome the limitation of organization through international cooperation (Manuel, 2009).

III. Flag state implementation in Indonesia

Indonesia is a huge Archipelago country comprised of 17508 islands, with 5.8 million square kilometres total area of sea and 95181 km length of coast line (Indonesian Maritime Committee, 2008). This given condition generates high dependency on maritime transportation and also obstacle to develop high qualified and reliable maritime transportation system. Three main strategies in maritime transportation development of Indonesia for 2009 are improvement of national transportation service, improving safety and security of maritime transportation and improving quality of human resources (Ministry of Transportation, 2009). Indonesia also published long term development strategies 2005-2025 for maritime safety, inter alia, maintain traffic scheme, monitoring seaworthiness and vessel status regularly, assessment of technical aspect and operational of vessel, controlling implementation of planned maintenance systems, developing crew career, monitoring environmental protection and improving SAR operation (Ministry,2008a). Specific short term target are explained in roadmap of maritime transportation safety improvement for 2006-2009 plans which include facilities, law enforcement, regulation, restructure organization, human resource, institution revitalization and community socialization (Ministry,2008b).

Specifically as a flag state, Indonesia is bound to the obligation of flag state duties as mention in UNCLOS. Based on Transportation Information Book 2007, Indonesia has 7,237 national fleets in 2007 (Ministry, 2008c). Compare to the world, Indonesia is in number 11 in merchant marine with 971 vessels in 2008 (CIA,2009). To maintain and assure that all vessels have fully complied with regulation is not easy task for Indonesia. As 4 strategies mentioned in Resolution A.996(25) which should be established, some are fulfilled and some are not yet accomplished.

a. Implementation and enforcement

Indonesia already ratify several conventions such as SOLAS 74 protocol 78, Load Line 66, Tonnage 69, COLREG 72, STCW 78, MARPOL 73/78 Annex I/II and some other convention such as CSC, STP, Facilitation and INMARSAT (IMO,2009a). Ratification processes are take time since it has to be legalizing through parliaments. However, although there are some conventions, protocol or annex not yet ratified, Indonesia always try to keep in track to recent important regulation development. For example, as mention in roadmap of maritime transportation safety improvement, Indonesia has continuous improvement in ISPS and ISM implementation (Ministry, 2008b).

In terms of classification, Directorate General of Sea Transportation give authority to Biro Klasifikasi Indonesia regards hull construction, electrical and machinery. Other aspect such as radio communication and safety equipment are inspected by Directorate through their Marine Inspector (Rusdi,2009). This multiple classifications should not be a problem if every part of regulation is strictly implemented. However, often people argue that BKI’s position is not helped by its close links with the Ministry of Transportation, where decisions are often described as politically-motivated (Indonesian Class, 2007).

Indonesia also tries to improve law enforcement such as technical audit to passenger vessel and ro-ro ferry, sanction for careless harbourmaster and marine inspector, licence revocation for negligent operator and condition assessment survey for safety requirement in ro-ro ferry which older than 25 years. In 2007, there are 4 official and 1 operator were sanctioned (Ministry, 2008b). Unfortunately, in several cases, inadequate safety equipments are still founded. For example, in KM Levina accident case, it was proved that the sprinkle can not work. Ironically, for safety equipment certificate, the ship have complete certificate. There are possibilities that safety equipment not carefully inspected (Rusdi, 2009). As Gunther, chairman of interferry, comments that many problem are caused by poor operator administration (High waves, 2009). This problem should be cover by port clearing requirement; therefore, law enforcement should be much stricter.

b. Adherence to international recommendations

Overall, Indonesia has trying to implement and enforce mandatory instrument; however, Indonesia should more pay attention to international recommendation. Although ISPS are not cover in Resolution A.996(25), ISPS code including Part B which is not mandatory is one example of recommendation that already implemented in Indonesia.  Indonesia already established International Ship and Port Facilities Security since 1st July 2004 (Ministry, 2008a).

c. Review and verification of the effectiveness

Port state control data, accident statistics and audit are the ways to review and verify flag state implementation effectiveness.  Unfortunately, port state control statistic for Indonesian vessel not gives good news. In Tokyo MoU annual report 2008, Indonesia is in 6th place in highest detention report with 19.14% or 40 detentions. With 634 inspections from 2006 to 2008 there are 123 detentions which put Indonesia in black list.  However, Biro Klasifikasi Indonesia can prove that they have better performance, which in Tokyo MoU, BKI has medium performance level (Tokyo MoU, 2009).

Number of vessel accident in Indonesia also relatively high. Figure 1 shows the statistics from 2003 to 2008. It tends to increase from 2003 to 2007 and the highest number occurs in 2007 with 145 accidents. However it shows good progress when in 2008, number of accident sharp decrease to 44 accidents. This probably prove that after second biggest ferry disaster in Indonesia, Senopati  Nusantara, happened at the end of 2006, government trying hard to improve vessel safety in Indonesia.

Furthermore, Indonesia has not yet volunteered for VIMSAS. Apart of realizing that some obligation not yet fulfilled, one of the problems is probably cost which should be afforded for the audit. However this problem should not be as a reason to refrain from applying the audit. Integrated Technical Co-operation Programme (ITCP) can provide assistance to prepare audits and/or implement corrective measures in response to audit findings and, if necessary, funding part of the cost for the audit (Franson, 2009). Considering benefit of this audit, applying VIMSAS could be the starting point for Indonesia to find the right solution.

d. Achievement, maintenance and improvement of overall organizational performance and capability

In order to ensure achievement and maintenance of organizational performance, Indonesia realized urgency of improving human resource development. Since 2006, each year Indonesia trained approximately 600 people in various training such as marine inspector, hydrographic, Global Marine Distress Safety System, SAR, ISPS-Code, Port State Control Officer, Advance Fire Fighting, ISM Code and Radar Simulator Arpa Simulator. In terms of organization improvement, Directorate General of Sea transportation determined tasks based on competence based evaluation. Indonesia also planned to restructure and reform Biro Klasifikasi Indonesia to be more independent and professional (Ministry, 2008b).

Although we can categorized Indonesian Maritime administration has traditional public administration style with its classic bureaucracy, Indonesia has implemented some element of new public management. Authorization of Biro Klasifikasi Indonesia for ISM audit also shown Maritime administration orientation in result, with realized their limited capability for doing too much task. Directorate has also published minimum standard of services which mention performance indicator (Directorate, 1999).

Certainly, all deficiency should be overcome, one of the solution is by implementing the code in Resolution A.996(25). However, there are many possible consequences have to be faced by Indonesia in order to fully implement the code. One example of important parts is regarding casualty investigation.

IV. Consequence of the code for casualty investigation in Indonesia

As part of the strategy, casualty investigation is one of flag state responsibility that should implement.  Resolution A.996(25) point out that flag state should carried out investigation following a marine casualty or pollution incident. Three consequences that should considered regarding casualty investigations are provide qualified investigators, publish the result for certain cases, and report to IMO according to the guidelines (IMO,2007).

Wherever the location of casualty or incident, flag State should be prepared to provide qualified investigators. Individual investigators should have working knowledge and practical experience in those subject areas pertaining to their normal duties. Additionally, in order to assist individual investigators performing duties outside their normal assignments, flag State should ensure ready access of various expertise such as expertise in navigation and Collision Regulations, causes of marine pollution, interviewing techniques, evidence gathering, and evaluation of the effects of the human element (IMO,2007). High qualified investigator can conduct good investigation which finds not only the direct causes but also the root causes to avoid the reoccurrence. In terms of investigator, Indonesia only has 6 individual investigators. As Karmoyono, head of maritime transportation sub committee NTSC said, to promptly deal with all accident happen in Indonesia at least 30 individual investigators is needed, with 1 investigator for each province (Yunita,2008). Addressing this problem, Indonesia can try to develop its capability through program offered in UNDP; as long as conform to UNDP global mandate and follow the process, Common Country Assessment, United Nations Development Assistance Framework and Common Country Programme Action Plan (Jopap,2009). Along with developing internal capability, Indonesia can also explore possibility to take advantage of multi state cooperation with get professional expert from other country.

Moreover, the investigation result should be informed to every party involved as input for improvement.  According to Smith and Schmidt, “When investigating accident, success is measured by the degree to which the party efficiently receives the information it needs and is able to act in its own best interest based on that knowledge” (Smith & Schmidt, 2005, p.210). It is fits to requirement of the code, which is to publish the result of investigation to the public, especially any accidents involving personal injury necessitating absence from duty of three days or more and any deaths resulting from occupational accidents and casualties to ships. In 2008, among 44 accidents, 4 accidents which considered as major accident were investigated by National Transport Safety Committee, and 40 were investigated by Directorate General of Sea Transportation (NTSC, 2009a). Among this 4 major accident only 2 of the report are published in NTSC website (NTSC, 2009b).

Last consequence is requirement to report in accordance with MSC/Circ.953-MEPC/Circ.372, Reports on marine casualties and incidents, and revised harmonized reporting procedures which is reports required under SOLAS regulation I/21 and MARPOL 73/78 articles 8 and 12.

V.Conclusion

Strategies mentioned in Resolution A.996(25) has give comprehensive measure to implement IMO convention. Indonesia as flag state has developed short term and long term strategic plans which in line with some part of the code. Indonesia also conducted the strategy; however, there are still many deficiencies occurred, especially in enforcement, adherence to the international recommendation, and verification of effectiveness. Realizing the benefit of the code, it is every hope that all possible consequences which arise from implementing the code in Indonesia can be managed.