Tariel Khadzhishvili: “You have to struggle for every ship again”
25 February 2019 Valentyna Mykhailova
Corrupt officials are struggling again trying to restore schemes of exactions during ballast water control and invent new ways, Tariel Khadzhishvili, Vice-President of the Maritime Chamber of Ukraine, Director of “Novikъ” company tells in his interview to the “Ports of Ukraine.
We met with Tariel Khadzhishvili, the Vice-President of the Maritime Chamber of Ukraine, Director of the agent company “Novikъ”in a very difficult moment. Ecologists of the State service on safety on transport, after their second attempt and without the captain of the ship being aware of that, managed to come aboard the ship and sample ballast water, which constitutes violation of the relevant law. The “Novikъ”company is the agent of the ship in question. The situation when civil servants get secretly onto the ship by any means could be comical, if it didn’t mean real financial loss for the ship-owner.
This is more than three years already that in Ukraine, like in the other civilized world, a mandatory control of isolated ballast has been abolished. Ecologists are no allowed to independently come aboard a ship for sampling. However, when such a decision was made in 2015, GOST indices for ballast water had not been abolished. And the requirements to it were made stricter than for drinking water yet at the beginning of the 90s, when a corrupt scheme on ballast water check was developed. Therefore, any penetration by the ecologists to the sweet tanks, let it even be an illegal one, can result in the victory of corrupt officials. At times, the quality of water can be below standards. Ship owners will either be doomed to pay a fine, or they may get rid of it with a cheaper bribe, or, as in this particular case, to challenge the fine in court.
– You have to struggle for every ship again, – says Tariel Khadzhishvili. – Ecologists have no official permission for sampling, there exists no sampling procedure. In principle, they do not have any right to come aboard a ship on their own. Control functions are vested with State Port Control only. In the Administration of maritime ports of Ukraine people say that ecologists have no official access to a port, they do not even have any pass. Nevertheless, whenever any ship arrives in port, those unofficial people somehow manage to be in port, this strategic and protected object, and easily gain access to ships.
The latest case occurred on the vessel Manzanillo. Unknown persons came aboard, took samples, imposed a fine. We did not manage to identify them: in the board records they are marked as nameless ecological inspectors, at the bottom of the order there unreadable surnames. The fine amounted to $10 thousand. The vessel, in order not to waste money because of demurrage, left the port under the guarantee to pay the fine. This way we escaped the necessity to pay a bribe. We filed a suit in court where we will defend our position that the fine is illegal.
Pumping out of isolated ballast water is not practically controlled in any port of the world. In all civilized world these functions are performed by PSC. An agent requests ballast water records from a captain and from a ship-owner where one can see in what points ballast was pumped out. If the records are filled out correctly, the stated data does not violate maritime conventions, MARPOL, then there is no sense in any additional check.
Everything starts from a seal worth of $50 each
– Exactly three years ago cancellation of a mandatory isolated ballast control was declared by the country’s maritime community among main achievements of 2015 on the water transport. Experts called it a “victory over malpractice of illegal exactions disgracing Ukraine in the whole world”. According to their estimated, the annual amount of unofficial reward in favour of ecological inspectors reached $30 million. How did it become possible that the governmental decree is not fulfilled again?
– Struggle against this corruption feeder has its own history and its own heroes. It was selflessly started by the “Transship” company. After the Revolution of Dignity the maritime community became more active and made the Cabinet of Ministers pass the required decisions. Gradually all the details how the corrupt value chain was formed and the names of its initiators became clear. For instance, the name of a particular person from the State Service for Ecology, who had ordered severe norms for ballast water, is known. It is also known why the control was given to a particular laboratory rather than to independent experts. It became clear how the scheme was formed by stage. For example, in the 90s the ballast subject started from the demand for a ship-owner to pay $50 for each seal, and then they gradually moved to sampling and control of ballast water.
Today the corrupt ecologists act within the structure of “Ukrtransbezpeka”, which, according to our opinion, was created in order to restore the former source of exactions. It is interesting that in 2018 the scheme started to be renewed exactly in the same order as it had appeared back in the 90s – from the payment for a seal. And within a year the scheme was exactly the same. They are trying to reinforce it on a legislative level. Our task is to prevent it any means.
Real support from the Associationof maritime agents
– Is it a real task to stop a bribery scheme on ballast at all? It seems like an endless game – one has cut one head and there appears a new office…
– The experience shows that the efforts by some fighter can bring particular results but it is far more efficient to get united. If in 2015 all the players in the industry united their forces in the struggle for the real elimination of the ballast water scheme, then everyone could see the results, while the corrupt officials wouldn’t be able to re-write the situation anew.
But the reason does not lie in the official from the state structures only. They are easy to change. The reason lies in the mentality of the participants of the process, and the Ukrainian society in general. It is those who demand bribes, and those who pays them, and also those who are intermediaries, and those who just put up with this. Foreign ship-owners, to avoid demurrage and any trouble, include the cost of exactions in the Ukrainian ports into expenses right from the start.
And, of course, a big role is played by those who act as intermediaries between the ship-owners and port authorities, - agency companies. If the majority of agents took a strong ground regarding even minor violation from the very beginning, and protected the interests of their principals, we wouldn’t have the today’s outrage. Alas, the agents themself horn in on the money of their principals – that’s the trouble.
The system works in a simple way: they throw a small hook for a check. If the market participants have easily got it which would mean that it is possible to launch a more sophisticated scheme. For example, to exact money they created “Poseidon” company at first. Everyone understood that was the purpose and who stood behind. But it’s peanuts, the cost of seal wasn’t big, therefore nobody argued. But then they created a mooring team and made everyone sign agreements. The cost demonstrably grew. Should the agency businesses be united then, today they would consider us more.
Unfortunately, not everyone is ready to unite. Someone is interested in the exaction schemes of their very principals, other just lack resources to stand against the system. In fact, today in the market of Ukraine there operate nearly 100 agency companies. Some of them are big and well to do. And there small ones who can’t resist on their own. And there are those who just got tired of fighting on their own and spend enormous efforts. We need a single centre which would integrate resources for the struggle.
The Association of maritime agents of Ukraine has been actively acting as a strong and uniting force during the previous year. Operational exchange of views and information has been arranged and the agents started communicating more often. They keep the statistic which helps to clear the real situation up. There exists consultancy support. AMAU teaches the clients, including harbor masters, how to act correctly in certain situations.
So today business has a single civilized way of struggle with the system of exactions and corruption and this is maximum publicity and consolidation of all participants of maritime business who are ready and are willing to change something. Therefore, the Association involves a maximum wide range of specialists, non-governmental organizations in the country and abroad, press. Recently AMAU became a member of Fonasba Federation.
Creation of the Maritime Chamber of Ukraine made it easier to bring the problems to public and to involve international organizations for solving a difficult situation in Ukraine.
Real support inspires and unites. The more agents see the results of the efforts, the bigger are the chances to change the bad statistic. The process has started. In AMAU, there appear new members, people got interested in terms and conditions and ask for legal support.
How the case won in court has not become the victory of agents
– As far as I know, AMAU has successfully challenged a new wording of the contract offered to maritime agents by the Administration of maritime ports of Ukraine. An agent was vested with obligations that he could not bear and so on. Can we speak of the victory?
– It is too early to speak about the victory. AMPU interprets the decision by court in a specific way. The Administration, using its monopoly, unilaterally passed the so-called contract of adhesion at the end of the year. The access in ports for those agents who did not sign it was refused. On the last working day in the year you had to accept the document.
This is the story about integrity and clarity of position. The only task for a contract between an agency company and AMPU is execution of a currency transaction between the banks to pay for arrival of ship. The AMPU employees have transformed a financial document into a 10 page collection of clauses to regulate the activity of agent. The contract makes agent liable for all actions and violations by a ship-owner, charterer, captain, for example, for oil leaks, incidents and other.
Firstly, these regulations just don’t correspond to reality.. Secondly, such position is not correct. In fact, the administration has told the representatives of ship-owners: you are within my sphere of control, you are my subordinates, in I am control, I determine the range of your actions and increase the tariffs for you.
Agents suggested getting the contract its initial sense. They have tried to day that they do not agree with a number of clauses. The dialogue failed. AMPU has set a unilateral condition – if you do not sign our version of the contract, the agent will not be allowed into the port territory. Then the AMAU lawyers have challenged the contract of adhesion legality. The court has agreed that the contract is illegal. AMPU said they have a special understanding of the decision by court. There was no time left for further litigation.
As the result, the case was won but it has not become a victory. But a real step was taken to protect our rights. Now legal consultations are under way to elaborate further strategy. We keep our chins up.