EU Shipping Law
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CHAPTER 33
Maritime safety: international safety management code for the safe operation of ships and for pollution prevention
A. Introduction
33.001 This chapter considers the European Union (“EU”) shipping law aspects of the International Management Code for the Safe Operation of Ships and for Pollution Prevention (the “ISM Code”). 33.002 The ISM Code was adopted by the International Maritime Organization (the “IMO”) in 1993. The Code was applied gradually to most ships sailing on international voyages with the adoption in May 1994 of Chapter IX (i.e. “Management for the Safe Operation of Ships”) of the International Convention for the Safety of Life at Sea (“SOLAS”), 1974. The ISM Code was amended by the IMO by Resolution MSC.104(73) which was adopted on 5 December 2000. Guidelines on Implementation of the ISM Code by Administrations were adopted by IMO Resolution A.788(19) on 23 November 1995. These Guidelines were amended by Resolution A.913(22) which was adopted on 29 November 2001.B. Regulation 336/2006 on the implementation of the international safety management code within the Community and repealing Council Regulation 3051/95
Introduction
33.003 On 15 February 2006, the Parliament and Council adopted Regulation 336/2006 on the implementation of the International Safety Management Code within the Community and repealing Council Regulation 3051/95.1 The regulation has been amended by: (a) Commission Regulation 540/2008 of 16 June 2008 amending Annex II to Regulation 336/2006 of the European Parliament and of the Council on the implementation of the ISM Code within the Community, as regards format of forms;2 and (b) European Parliament and Council Regulation 1137/2008 of 22 October 2008 of the European Parliament and of the Council of 22 October 2008 adopting a number of instruments subject to the procedure laid down in Article 251 of the Treaty to Council Decision 1999/468, with regard to the regulatory procedure with scrutiny – Adaptation of the regulatory procedure with scrutiny – Part One.3Page 1445
Background
33.008 Council Regulation 3051/95 of 8 December 1995 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries)4 made the ISM Code mandatory at EU level with effect from 1 July 1996 for all ro-ro passenger ferries operating on a regular service to, and from, ports of the Member States, on both domestic and international voyages and regardless of their flag. This was a first step towards ensuring uniform and coherent implementation of the ISM Code in all Member States. 33.009 On 1 July 1998, the ISM Code became mandatory under the provisions of Chapter IX of SOLAS for companies operating passenger ships, including high-speed passenger craft, oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high-speed craft of 500 gt (gross tonnage) and upwards, on international voyages. 33.010 On 1 July 2002, the ISM Code became mandatory for companies operating other cargo ships and mobile offshore drilling units of 500 gt and upwards, on international voyages. 33.011 If a Member State considers it difficult in practice for companies to comply with specific provisions of Part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, it may derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code. It may, for such ships and companies, establish alternative certification and verification procedures. 33.012 The recitals recall:- “(13) It is also necessary to take into account Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations,5 in order to define the recognised organisations for the purpose of this Regulation, and Council Directive 98/18/EC of 17 March
1998 on safety rules and standards for passenger ships,6 for the purpose of establishing the scope of application of this Regulation as regards passenger ships engaged on domestic voyages.Page 1446
- (14) The measures necessary for amending Annex II should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.7
- (15) Since the objectives of this Regulation, namely to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.”
Objective of the regulation
33.013 Article 1 provides that the objective of the regulation is to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, referred to in Article 3(1), by ensuring that companies operating those ships comply with the ISM Code by means of: (a) the establishment, implementation and proper maintenance by companies of the shipboard and shore-based safety management systems; and (b) the control thereof by flag and port State administrations.Concepts in the regulation
33.014 Article 2 sets out some definitions for the purpose of the regulation. The term the “ISM Code” means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organization by Assembly Resolution A.741(18) of 4 November 1993, as amended by Maritime Safety Committee Resolution MSC.104(73) of 5 December 2000 and set out in Annex I to this regulation, in its up-to-date version. The phrase “recognised organisation” means a body recognised in accordance with Directive 94/57.8 The term “company” means the owner of the ship or any other organisation or person, such as the manager or the bareboat charterer, who has assumed responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the ISM Code. The phrase “passenger ship” means a ship, including a high-speed craft, carrying more than 12 passengers, or a passenger submersible craft. The word “passenger” means every person other than: (a) the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and (b) a child under one year of age. The phrase “high-speed craft” means a high-speed craft as defined in Regulation X-1/2 of SOLAS, in its up-to-date version. For high-speed passenger craft, the limitations indicated in Article 2(f) of Directive 98/18 shall apply. The phrase “cargo ship” means a ship, including a high-speed craft, which is not a passenger ship. The term “international voyage” means aPage 1447
Scope of regulation 336/2006
33.015 Article 3(1) provides that the regulation shall apply to the following types of ships and to companies operating them: (a) cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages; (b) cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag; (c) cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag; and (d) mobile offshore drilling units operating under the authority of a Member State. 33.016 Article 3(2) provides that the regulation shall not apply to the following types of ships or to the companies operating them: (a) ships of war and troopships and other ships owned or operated by a Member State and used only on government non-commercial service; (b) ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes; (c) fishing vessels; (d) cargo ships and mobile offshore drilling units of less than 500 gt; and (e) passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18.Compliance
33.017 Article 4 of Regulation 336/2006 provides that Member States shall ensure that all companies operating ships falling within the scope of this regulation comply with the provisions of the regulation.Page 1448
Safety management requirements
33.018 Article 5 of Regulation 336/2006 provides that the ships referred to in Article 3(1) of Regulation 336/2006 and the companies operating them shall comply with the requirements of Part A of the ISM Code.Certification and verification
33.019 Article 6 of Regulation 336/2006 provides that for the purposes of certification and verification, Member States shall comply with the provisions of Part B of the ISM Code.Derogation
33.020 Article 7 of Regulation 336/2006 provides for some derogation. Article 7(1) provides a Member State may, if it considers it difficult in practice for companies to comply with paragraphs 6, 7, 9, 11 and 12 of Part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code. Article 7(2) provides that a Member State may, for ships and companies for which a derogation has been adopted by virtue of paragraph 1, if it considers it difficult in practice to apply the requirements laid down in Article 6, establish alternative certification and verification procedures. Article 7(3) provides that in the circumstances set out in paragraph 1 and, if applicable, paragraph 2, the following procedure shall apply: (a) the Member State concerned shall notify the Commission of the derogation and of the measures which it intends to adopt; (b) if, within six months of the notification, it is decided, in accordance with the procedure referred to in Article 12(2), that the proposed derogation is not justified or that the proposed measures are not sufficient, the Member State shall be required to amend or refrain from adopting the proposed provisions; and (c) the Member State shall make any adopted measures public with a direct reference to paragraph 1 and, if applicable, paragraph 2. Article 7(4) provides that following a derogation under paragraph 1 and, if applicable, paragraph 2, the Member State concerned shall issue a certificate in accordance with the second subparagraph of Annex II, Part B, Section 5, indicating the applicable operational limitations.Validity, acceptance and recognition of certificates
33.021 Article 8 of Regulation 336/2006 deals with the validity, acceptance and recognition of certificates:- “1. The Document of Compliance shall remain valid for up to five years from the date of its issue. The Safety Management Certificate shall remain valid for up to five years from the date of its issue.
- 2. In cases of renewal of the Document of Compliance and the Safety Management Certificate, the relevant provisions of Part B of the ISM Code shall apply.
- 3. Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by the
administration of any other Member State or on behalf of this administration by a recognised organisation.Page 1449
- 4. Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by, or on behalf of, the administrations of third countries.
However, for ships engaged on a regular shipping service, compliance with the ISM Code by the Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued on behalf of administrations of third countries shall be verified, by any appropriate means, by or on behalf of the Member State(s) concerned, unless they were issued by the administration of a Member State or by a recognised organisation.”