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Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law

International
International
Safety
Safety
Management
Management
Code
Code
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Herald
Herald
of
of
Free
Free
Enterprise
Enterprise
(1987)
(1987)


Scandinavian
Scandinavian
Star (1990)
Star (1990)


Estonia
Estonia
(1994)
(1994)
The
The
background
background
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


International
International
Management
Management
Code
Code
for
for
the
the
Safe
Safe
Operation
Operation
of
of
Ships
Ships
and for
and for
Pollution
Pollution
Prevention
Prevention
(ISM
(ISM
Code
Code
)
)
of
of
1993
1993


First as Guidelines (
First as Guidelines (
non
non
-
-
binding
binding
)
)


Chapter
Chapter
IX
IX
of
of
SOLAS as
SOLAS as
of
of
1994
1994


As
As
of
of
1995 binding
1995 binding
on
on
all
all
ro
ro
-
-
ro
ro
passenger
passenger
ships
ships
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law

Human
Human
factor
factor


is
is
the
the
most
most
common
common
reason
reason
for
for
accidents
accidents
with
with
ships
ships


ISM
ISM
Code
Code
:
:

provide
provide
for safe
for safe
practices
practices
in
in
ship
ship
operation
operation
and
and
a safe
a safe
working
working
environment
environment

establish
establish
safeguards
safeguards
against
against
all
all
identified
identified
risks
risks

continuously
continuously
improve
improve
safety
safety
management
management
skills
skills
of
of
personnel
personnel
ashore
ashore
and
and
aboard
aboard
,
,
including
including
preparing for
preparing for
emergencies
emergencies
related
related
to
to
safety
safety
and
and
environmental
environmental
protection
protection

Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law




Preamble Preamble
The purpose The purpose of of this this Code Code is to is to provide provide an an international international standard for standard for the the safe safe
management management and and operation operation of of ships ships and for and for pollution pollution prevention prevention


Part A Part A Implementation Implementation
Objectives Objectives
Responsibilities Responsibilities and and policies policies of of shipping shipping company company, master , master
Designated Designated persons persons
Preparedness Preparedness
Internal Internal audit audit
Documentation Documentation


Part B Part B Certification Certification and and Verification Verification
Certification Certification and and periodical periodical verification verification
Interim Interim certification certification
Verification Verification
Forms Forms of of certificates certificates
The structure of the ISM Code
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


must be
must be
established
established
by
by
the
the
shipping
shipping
company
company
1.step
1.step

Say
Say
what
what
you
you
do!
do!


Safety Management and
Safety Management and
procedures
procedures
manuals,
manuals,
instructions
instructions
,
,
checklists
checklists
etc
etc
2.step
2.step

Do
Do
what
what
you
you
say
say
you
you
do!
do!


implement
implement
these
these
instructions
instructions
in
in
practice
practice
3.step
3.step

Show
Show
that
that
you
you
do
do
what
what
you
you
say
say
you
you
do!
do!

-
-
ensure
ensure
you
you
have
have
objective
objective
evidence
evidence
of
of
steps
steps
1 and 2
1 and 2
Safety
Safety
management
management
system
system
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


SMS must:
SMS must:


ensure
ensure
compliance
compliance
with
with
mandatory
mandatory
safety
safety
regulations
regulations


Take
Take
account
account
of
of
Codes
Codes
, Guidelines and
, Guidelines and
other
other
non
non
-
-
binding
binding
recommendations
recommendations
of
of
IMO
IMO


ISM
ISM
Code
Code
establishes
establishes
minimum
minimum
requirements
requirements


Up to
Up to
the
the
shipping
shipping
company
company
to
to
implement
implement

shipping
shipping
company
company


is
is
broadly
broadly
defined
defined
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


1. The 1. The obligation obligation to to instruct instruct properly properly the the master and master and the the crew crew


2. The 2. The obligation obligation to to keep keep and and maintain maintain records records and and reports reports
[ [
new
new] ]


3. 3. Designation Designation of of the the responsible responsible person [ person [
new
new] ]


4. 4. Certification Certification ( (Document Document of of Compliance Compliance and Safety and Safety
Management Management Certificate Certificate) )


5. 5. Verification Verification, , review review and and evaluation evaluation [ [
new
new] ]
Main duties of the shipping company
and novelties of the ISM Code
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Flag
Flag
State
State


Reg. 4
Reg. 4
of
of
Chapter
Chapter
IX
IX
of
of
SOLAS; ISM
SOLAS; ISM
Code
Code
para.
para.
13; IMO
13; IMO
Resolution
Resolution
A.788
A.788


Classification
Classification
societies
societies
(
(

recognized
recognized
organization
organization

)
)


Reg. IX.1
Reg. IX.1
of
of
SOLAS
SOLAS


States
States
may
may
delegate
delegate
powers
powers
of
of
supervision
supervision


Port State
Port State
control
control


Reg. IX/6.2
Reg. IX/6.2
of
of
SOLAS
SOLAS
Who supervises
Who supervises
implementation
implementation
?
?
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


ISM
ISM
Code
Code
is
is
very
very
laconic
laconic
and
and
flexible
flexible
,
,
allowing
allowing
individual
individual
SMS
SMS


Is it a
Is it a
good
good
thing
thing
or a bad
or a bad
thing
thing
?
?


Are shipping
Are shipping
companies
companies
capable
capable
of
of
taking
taking
responsibility
responsibility
of
of
establishing
establishing
a proper
a proper
SMS?
SMS?
Some
Some
practical
practical
problems
problems
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


1.2.2 Safety
1.2.2 Safety
management
management
objectives
objectives
:
:
Establish Establish safeguards safeguards against against all all identified identified risks risks


7
7
Development
Development
of
of
plans for
plans for
shipboard
shipboard
operations
operations
The Company must The Company must establish establish procedures procedures for for the the
preparations preparations of of plans and plans and instructions instructions for for key key shipboard shipboard
operations operations concerning concerning the the safety safety of of ship ship and and the the
prevention prevention of of polution polution. The . The various various tasks tasks involved involved should should
be be defined defined and and assigned assigned to to qualified qualified personnel personnel


How
How
long
long
and
and
detailed
detailed
manuals
manuals
should
should
be to
be to
respond
respond
to ISM
to ISM
Code
Code
?
?
Record
Record
-
-
keeping
keeping
(
(

paperwork
paperwork

)
)
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


How
How
much
much
information
information
should
should
be
be
communicated
communicated
to
to
the
the
senior
senior
management
management
?
?
Designated
Designated
person
person
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Sec. 12
Sec. 12
of
of
the
the
ISM
ISM
Code
Code
:
:
internal
internal
safety
safety
audits
audits


Periodical
Periodical
evaluations
evaluations
of
of
compliance
compliance
by
by
the
the
company
company


Demonstrate
Demonstrate
compliance
compliance
with
with
SMS for
SMS for
themselves
themselves
and
and
opporunity
opporunity
to
to
improve
improve


In
In
addition
addition
to
to
external
external
audits
audits
by FS &
by FS &
R/Os
R/Os


How
How
often
often
?
?
Verification and internal audits
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Civil
Civil
liability
liability


Criminal/administrative
Criminal/administrative
liability
liability


Insurance
Insurance
Legal
Legal
implications
implications
of
of
the
the
ISM
ISM
Code
Code
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Duty
Duty
of
of
the
the
carrier to make
carrier to make
the
the
ship
ship

seaworthy
seaworthy


Hague
Hague
-
-
Visby
Visby
Rules
Rules
, III.1:
, III.1:

exercise
exercise
due
due
diligence
diligence
to make
to make
the
the
ship
ship
seaworthy
seaworthy


HVR, IV.2:
HVR, IV.2:
exception
exception
for
for
damage
damage
resulting
resulting
from
from
act
act
of
of
negligence
negligence
in
in
navigation
navigation
or
or
management
management
of
of
the
the
ship
ship
Carriage
Carriage
of
of
goods
goods
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Brussels
Brussels
convention
convention
on
on
limitation
limitation
, 1957:
, 1957:


Limitation
Limitation
of
of
liability
liability
not
not
available
available
in case
in case
of
of

actual
actual
fault
fault
and
and
privity
privity



1976
1976
Limitation
Limitation
convention
convention
:
:


Limitation
Limitation
of
of
liability
liability
not
not
available
available
in case
in case
of
of
loss
loss
resulting
resulting
from a
from a

personal
personal
act
act
or
or
omission
omission


(Art.
(Art.
4)
4)


ISM
ISM
Code
Code
thus
thus
helps
helps
to
to
define
define
the
the
standard
standard
of
of
managerial
managerial
conduct
conduct
Limitation of liability
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


E.g
E.g
., Sec. 58
., Sec. 58
of
of
the
the
Norwegian
Norwegian
Ship
Ship
Safety
Safety
Act
Act
(Skipssikkerhetsloven)
(Skipssikkerhetsloven)
on
on
breach
breach
of
of
duties
duties
with
with
respect
respect
to SMS:
to SMS:


Any
Any
person
person
who
who
,
,
on
on
behalf
behalf
of
of
the
the
shipping
shipping
company
company
,
,
willfully
willfully
or
or
negligently
negligently
substantially
substantially
fails
fails
to
to
establish
establish
,
,
implement
implement
and
and
develop
develop
a
a
safety
safety
management
management
system in
system in
accordance
accordance
with
with
section
section
7 and
7 and
regulations
regulations
issued
issued
pursuant
pursuant
to
to
the
the
provision
provision
shall
shall
be
be
liable
liable
to fines or
to fines or
imprisonment
imprisonment
for a term not
for a term not
exceeding
exceeding
two
two
years
years
.
.
Criminal
Criminal
liability
liability
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Can
Can
documents
documents
required
required
by ISM
by ISM
Code
Code
be used
be used
against
against
the
the
shipping
shipping
company
company
?
?


Evidence
Evidence
in
in
liability
liability
cases!
cases!


Some
Some
kind
kind
of
of

privileged
privileged


status for
status for
these
these
documents
documents
?
?
Scandinavian Scandinavian Institute Institute of of Maritime Law Maritime Law


Prior to ISM
Prior to ISM
Code
Code
:
:
grounding
grounding
in 1997 [just
in 1997 [just
months
months
before
before
it
it
became
became
binding]:
binding]:


The
The
Torepo
Torepo
[2002] 2
[2002] 2
Lloyd
Lloyd

s
s
Rep. 535
Rep. 535


Unseaworthiness/absence Unseaworthiness/absence of of due diligence ( due diligence (claim claim) v. ) v.
Navigation Navigation error error ( (defence defence) )


US case:
US case:


Eleanor Eleanor Eisenberg Eisenberg v. v. Carnival Carnival Corporation Corporation 2008 WL 2008 WL
2946029 ( 2946029 (S.D.Fla S.D.Fla.) .)
No general No general obligation obligation to to produce produce accident accident reports reports
Work Work product product privilege privilege applies applies
Only Only photos photos taken taken as part as part of of internal internal investigation investigation, ,
though though WPP, WPP, are are critical critical items items of of evidence evidence. Not . Not
otherwise otherwise available available to to the the plaintiff plaintiff. .