Transcript How to be a Web Developer

Legal Implications of the ISM Code
Dr. Phil Anderson BA(Hons.) D.Prof.
FNI, MEWI, ACIArb., AMAE, Master Mariner
Let us never forget.....
• The ISM Code was never intended to
create new interparty liabilities. The Code
was formulated with the clear purpose of
improving and extending standards of
maritime safety !
• HOWEVER...
• Has the ISM Code been high-jacked by
the lawyers?
The Law
• Not much new
– Carriage of Goods
– Marine Insurance
– Personal Injuries
– Collisions etc
– Environmental
• Requirement to have DOC and SMC –
H&M and P&I
The Tests
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Exercise of due diligence
Duty of care
Fault and privity
Wilful misconduct
Recklessness
Utmost good faith
The Tests
• ‘…In the law of carriage of goods by sea
neither seaworthiness nor due diligence is
absolute. Both are relative, among other
things, to the state of knowledge and
standards prevailing at the time…’
• Lord Sumner – Bradley & Sons Ltd. v. Federal
Steam Navigation Co (1926) 24 Ll.L.Rep.446;
(1927) 27 Ll.l Rep. 395
The Tests
• ‘…Seaworthiness must be judged by the
standards and practices of the industry at
the relevant time, at least so long as those
standards and practices are reasonable…’
• Mr Justice Cresswell – Papera Traders Co Ltd &
others v. Hyundai Merchant Marine Co Ltd &
Another ( The ‘Eurasian Dream’); (2002) 1
Lloyd’s Rep. 719
Compliance with the Code
• Contractual claims and disputes
• Civil actions
• Criminal actions
The bench mark
The Benchmark
• The way the ship operator manages
safety!
The Benchmark
• The ISM Code / the SMS
– The way it has been developed
– The way it has been implemented
– The way it is operating in the Company and
on board the ship on a day-to-day basis
Bench Mark
• But does such a bench mark actually
exist?
The Causal Chain
INEFFECTIVE
ACCIDENT
DPA
FAILURE OF
SMS
DPA – Superhero or Fall guy??
• The DPA is exposed.....BUT...
• They are not on their own – the buck is
unlikely to stop at the desk of the DPA...
Issues of Attribution
Issues of Attribution
• Where does the buck stop?
• The role of the highest levels of
management
• The role of the Designated Person
• Who is the alter ego?
• Does it matter?
The Designated Person
• The Dilemma…
‘The errant shipowners Achilles heel’
• “The “blind eye” shipowner is faced with a “catch 22” situation. If he
hears nothing from the designated person, he will be bound to call for
reports, for it is inconceivable there will be nothing to report. If the
report is to the effect that all is well in a perfect world, the shipowners
would be bound to enquire how that could be, as the safety
management system is clearly intended to be a dynamic system
which is subject to continuous change in the light not only of the
experience of the individual ship, and of the company as a whole, but
also of the experience of others in the industry.”
• Lord Donaldson – The ISM Code: the road to discovery
The Company Verification,
Review and Evaluation
• All roads lead to the board-room table
• How worried should we be?
The Benchmark
• The ISM Code / the SMS
– The way it has been developed
– The way it has been implemented
– The way it is operating in the Company and
on board the ship on a day-to-day basis
• If something does go wrong and we find
ourselves facing prosecution – are we
insured for the costs of defending
ourselves?
• Is there a difference between:
• A ‘no-blame’ culture
• A ‘just’ culture?
A question of evidence
A Question of Evidence
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Safety Management Manual(s)
Checklists
Records
Reports
– Internal and external audits
– Safety committee meetings
– Company review meetings
• Should we realistically expect an ex
Master or ex Chief Engineer – for example
– to be able to pick up the batten and run
with a DPA’s job?
The Designated Person
• Circular MSC-MEPC.7/Circ5 – ‘Guidelines for the
Operational Implementation of the International
Safety Management (ISM) Code by Companies’
• Circular MSC-MEPC.7/Circ.6 – dated 10 October
2007 and titled ‘Guidelines on the qualifications,
training and experience necessary for undertaking
the role of the Designated Person under the
provisions of the International Safety Management
(ISM) Code’
Conclusion
• Has the ISM Code been high-jacked by
the lawyers?
• Where are all the prosecutions?
Bench Mark
• Does such a bench mark actually exist?
• How worried should we be?
• If something does go wrong and we find
ourselves facing prosecution – are we
insured for the costs of defending
ourselves?
• Is there a difference between:
• A ‘no-blame’ culture
• A ‘just’ culture?
• Should we realistically expect an ex
Master or ex Chief Engineer – for example
– to be able to pick up the batten and run
with a DPA’s job?
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Conclusion
Legal liability will be measured against the
ability of ship operators to manage safety.
The demonstration of that ability will
become evident from the way in which
they have set up, implemented and
operate their SMS.
The focus will quickly fall upon the DPA
and how he / she is performing their job!
But the buck wont / might not stop there!
The End
Flowchart For Problem Resolution
NO
YES
Is It Working?
Don’t Mess With It!
YES
Did You Mess
With It?
YOU IDIOT!
NO
Anyone Else
Knows?
NO
Hide It
YES
You’re STUFFED!
NO
Can You Blame
Someone Else?
YES
NO PROBLEM!
YES
Will it Blow Up
In Your Hands?
NO
Look The Other Way
Dr. Phil Anderson
BA (Hons.), D.Prof., FNI, AMAE,
MIEW, Master Mariner
Managing Director
[email protected]
www.consultism.co.uk