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Up-to-date news and information on incidents and developments relating to the ISM Code will be posted on this part of the website. ConsultISM would be most grateful for contributions from around the world. Full acknowledgement will be given with the agreement of the contributor.

Please send any news items or other current / topical information to Dr. Phil Anderson at philanderson@consultism.co.uk

MCA – Human Element Advisory Group
Meeting Number 2 – London Monday 25 September 2006
Key Note – Address
‘The Management of Safety v. Legal Compliance - A bit of a dilemma!'

Dr. Phil Anderson BA(Hons.), D.Prof.,FNI, MEWI,
AMAE, Master Mariner.
Managing Director – Consultism Ltd.
Immediate Past President – The Nautical Institute.

I am perhaps approaching the management of safety and the ISM Code from a slightly different perspective or direction than many of you. My primary involvement these days, wearing my Consultism hat, as opposed to my Nautical Institute Presidential hat, is from a situation where compliance with the ISM Code and / or the management of safety becomes an issue in the Commercial / Civil and indeed Criminal Courts and Maritime Arbitrations and related legal and insurance claims and disputes. And it is from that perspective that I would like to share with you some relevant thoughts – which do have a significant link in with human element aspects of making the Safety Management System work – and also to suggest a couple of ideas which, as a working group, you may care to take on board.

For sure, no-one can deny that just about every Company which requires one does have a DOC and every ship which requires one does have a SMC. At that level it must be correct to say that Compliance with ISM has been achieved. And it has been for the last six or eight years – depending upon the ship type. Should it not follow therefore, ipso facto , that ships are getting safer and seas cleaner?

To be fair there is some indication, particularly with regard to total losses and oil spills that things have improved. However, a study undertaken by an IMO expert group during 2005, with the results being presented to the Maritime Safety Committee in May this year was unable to collect any meaningful objective evidence that accidents and insurance claims really were on their way down. This is not meant in any way as a criticism of that IMO working group, indeed I had the honour to be invited to participate, nor does it necessarily mean that the number and size of accidents and incidents are moving one way or the other – we just do not know.

I do see however, with monotonous regularity, headlines in Lloyds List and Fairplay and other respected shipping newspapers and journals - reports of major casualties; indeed in my professional capacity I am subsequently instructed on many of those incidents by lawyers acting for one party or the other. Each year at the P&I Renewals we see premium increases which are typically in the region of 10% and more with regular warning by Clubs and Brokers that there is worse to come. I am also aware that H&M premiums are too low and have been subject to not insubstantial increases. In part at least this has to be tracking claims.

I don't think you need to be an expert in insurance, shipping, maritime safety or anything else to recognise that something is not quite right. I fully agree that we should not have expected overnight success with the ISM Code or that it was ever going to be a universal panacea which would solve all the ills of the shipping industry – but I would suggest that there are a number of barriers which are still inhibiting the full embracing of the Code by some shipping companies and individuals which really do need addressing if progress is to be made.

I admire greatly the initiative the MCA has taken in setting up this Human Element Advisory Group, and indeed the IMO itself in recognising the importance of the human element in managing safety. There are, however, barriers which, I believe must be recognised and dealt with if other human factor solutions are to stand any chance of getting off the ground.

I think there was a basic dichotomy identified when the idea of the ISM Code was first introduced and which, in my view, is still a major barrier to progress. There is basically one goal of the Code – to make ships safer and seas cleaner. As a direct consequence of achieving that goal accidents, incidents and insurance claims should all reduce – although perhaps it would be unrealistic to expect them to be irradiated completely. A side-effect of the ISM Code is that it introduced not a legal but a practical test with regard to the exercise of due diligence, or what would be now industry accepted practice with regard to exercising reasonable care. That practical test will look at the way in which the particular ship operator managed safety. Hence the Safety Management System comes under the lawyers microscope.

From what I said earlier, would it not be sufficient for the Company to produce its DOC and SMC to demonstrate compliance with all the requirements of the ISM Code? I think that should be prima facie evidence – but open to challenge. If there is a lot of money involved or a potential manslaughter charge against the Chief Executive of the Company then the lawyers will bring out their most powerful microscopes to attack or defend the system with great vigour – depending upon which side of the fence you may be sitting.

What I have seen in practice is that many of the SMS's have been created primarily to provide as strong a defence as possible for the Company if something does go wrong – rather than the practical management of safety as the primary objective. These two objectives should not be in conflict but the way things have developed I fear they are not always in harmony.

What has happened in practice is that the Company has produced many volumes of detailed procedures and guidance on all manner of ship board operations along with numerous checklists, forms and records which have to be completed. It would appear that some Companies believe, and certainly this appears to be the perception of many seafarers, that the Company is somehow creating a shield behind which it can shelter if something goes wrong. The Company has surely done all that it reasonably could – it has given those on board all the detailed guidelines and instructions they could ever need – if something goes wrong it is surely not the ship operators fault – it must be the fault of the Master and those on board who didn't follow the correct procedures – mustn't it? I think any ship operators who believes that is likely to have quite a shock coming to them – the buck stops on the boardroom table!

My belief is that if a ship operator develops, implements and maintains its SMS as it was intended by the ISM Code – to help make the ship safer and protect the environment – then the requirements to satisfy a Court or Arbitration tribunal will already have been produced coincidentally as a by-product.

The problem is that in many Companies they still appear to be top heavy with paper – with voluminous procedure manuals, instruction manuals, with record keeping – the reality is that the crew on board are often struggling to keep up and it is not at all unknown for records to be fabricated or for people to spend time completing bits of paper rather than actually performing the tasks which the bits of paper are supposed to be verifying!

The IMO report recommends, amongst other things, a reduction in the amount of paperwork on board – yet every day ships are having non-conformities raised against them because, according to the interpretation of a particular PSC authority or even the interpretation of an individual Inspector, the ship should have generated additional pieces of paper – even though the Flag State – who verified and approved the SMS didn't require such things. A typical example which I have come across on a number of occasions is the use of laminated checklists – the documented procedure requires the laminated checklist to be completed as the particular tasks are completed – a record is then entered in the Log Book to confirm that the particular checklist had been completed. Along comes a PSC Inspector and declares that he is not satisfied with that and requires paper copies of the checklists to be completed and preserved. To ensure that there is no risk of a delay to the vessel the Master / ship operators submits and agrees to comply with the demands of that particular PSC Inspector – which results in the ships officers now having to complete their laminated sheets, to comply with their own documented SMS and which they find most appropriate for the way they want to run their SMS, but now they also have to copy everything onto a piece of paper, create a file into which they can put these additional pieces of paper, and find space on an already creaking bookshelf for yet another file.

As I am becoming more and more involved in legal and insurance claims and disputes, as well as manslaughter and corporate killing cases, I am becoming increasingly concerned as to exactly how much documentary evidence may have to be produced to demonstrate that a particular ship operator really did exercise the necessary degree of due diligence in the operation of the management of its ship which of course includes, to a very high degree, the operation and management of safety.

There have, so far, been surprisingly few cases which have got as far as the Courts where the implications of the ISM Code have appeared as an issue. However, I know for sure – because I am instructed as an ISM Expert in so many pending cases in this Country and many other Countries – that they do exist and it is just a matter of time before the proverbial hits the fan!

The real problem is, when I try and interpret the requirements of the ISM Code in giving advice to my lawyer clients – that it is very much down to my own subjective interpretation of what constitutes a compliant system. There is no one, universally accepted interpretation of what the ISM Code actually requires or what actually constitutes compliance – indeed paragraph 4 of the Preamble to the Code provides great latitude for each ship operator to develop their own system to suit their own organisation – provided they meet the general principles and objectives of the Code.

I believe that the regulators and the industry must address this problem as a matter of urgency. Whilst in many ways it grieves me to say so – I have now started to arrive at the conclusion that the IMO should produce specimen examples of what constitutes an acceptable documented system to support an SMS. These can then be referred to as authoritative sources when Flag State Administrations, R/O's, PSC Inspectors, the Commercial, Civil and Criminal Courts and Arbitration tribunals around the world deliberate upon whether or not a particular SMS was compliant.

I believe that the IMO report into ISM implementation did throw down a gauntlet and we must not allow the report to disappear into the archives. The next stage must be to take objective measurements as to where we are – and I do believe that the relevant information must be there within the P&I Clubs, the H&M insurers, the Flag States and Classification Societies and within the PSC and MOU's. Simultaneously we must search out systems which have really worked in practice – identify industry best practice - analyse those systems and draw up a series of potential blue prints which others can emulate.

However, that conveniently brings me onto the other point which I would like to make. Even if we can identify documented systems which have worked extremely well for one organisation – it does not necessarily mean that the very same system would work at all for another organisation. There is clearly another factor which needs to be built in – the human factor. We must achieve buy-in by our people – without that buy-in even the best documented system would be little more than a pile of paper with lots of words written on it!

I have seen and heard much about the development of a safety culture – of training, rewarding and motivating people. From my own experience and observations I think a lot of hard work, effort and indeed money is being wasted. I strongly believe that the only meaningful way to achieve ‘buy-in' is to first create a Company Culture – create a situation whereby your people really feel and believe that they are part of the family – a sense of ownership and belonging – once that is achieved such things as a safety culture will flow as a natural consequence. I have not yet seen a successful ‘safety culture' or efficient working SMS where there has not been a strong sense of Company Culture amongst the sea and shore staff. Of course within the Company there must be strong and clear leadership – from the top.

Finally, a plea to this Human Element Advisory Group, please – when introducing concepts involving human element, ergonomics and psychology and the like – please go easy on the jargon and ensure that explanations are pitched at a level which can be easily understood by the non-specialist – keep to the KISS principle – Keep it simple sailor!

The Nautical Institute and Lloyds Register – under the Editorship of Commodore David Squire has produced an excellent series of introductions to the concepts underpinning human element and related concepts – in the ‘Alert' pamphlets and we must ensure, if we can, that this excellent work is fully utilised in any future endeavours in introducing these concepts into the shipping industry.

Dr Phil Anderson BA (Hons.), D.Prof., FNI, MEWI, AMAE, Master Mariner.
Managing Director - ConsultISM Ltd

32 Bishops Hill,
Acomb,
Hexham,
Northumberland,
NE46 4NH

Phone +44 (0)1434 600839
email philanderson@consultism.co.uk
Mobile : +44 (0)7963 864155.

The London Shipping Law Centre reports - With the ISM documentation and the Safety Management System, it is not so much what the ship-owner or ship manager has documented in his files, but how far the ship and shore personnel have familiarised themselves with the procedures, training and implementation of instructions in compliance with the requirements of both the Code and the STCW convention. Conflicts in the recording systems, or inaccurate recording, will expose the company and its officers to scrutiny by claimants’ lawyers and the court. In this mock trial of the ISM documentation it will be revealed how lawyers can bring weaknesses of the ISM into light, how factual witnesses can cope in cross-examination and how an expert witness can become the best friend a defendant could ever wish for, or the worst enemy he could ever imagine, – all depending upon how well the ISM systems had been implemented.

Apart from the actual performance of cross-examination of witnesses, judgment will be delivered at the end. The issues to be explored during the forum/panel discussion will include:

All the available places at the first Mock Trial were allocated well ahead of the event taking place – so book early to avoid disappointment.

For registration and further details visit www.london-shipping-law.com or email shipping@ucl.ac.uk

- From Lloyds List 7 th January 2004
Casualty

GERMAN owners of the general cargoship RMS Mulheim, which ran aground on the Cornish coast in March, 2003, have been fined £20,000 ($38,000) plus costs for two incidents in two days on different ships, writes Sandra Speares.

Rhein Maas Shipping, owner of the RMS Mulheim and RMS Ratingen, pleaded guilty to two breaches of collision regulations and two breaches of the International Safety Management Code.

Cambourne magistrates fined the German operator the maximum of £5,000 on the four counts with costs of a further £22,227.

In the first incident the chief officer of the the Antigua and Barbuda flagged RMS Mulheim was alone on the bridge when he became unconscious.

A Marine Accident Investigation Branch report found that he was knocked out after catching his trousers in a footplate control lever. His state went undiscovered until the vessel ran aground.

In the second incident the following day a pilot seeking to board RMS Ratingen, having failed to gain a response by radio, found the master asleep in the pilot chair when he arrived on the bridge.

The chairman of the bench said: “This was a very serious offence and in the RMS Ratingen case it took place in a very busy shipping lane. If both masters had ensured that there were two people on watch in both cases these incidents would not have occurred.”

ReportISM is a regular electronic newsletter providing news and opinion from around the world on ISM related issues. Previous issues can be accessed above. Copies of ReportISM will be published on this part of the website but if you would like a copy emailed to you automatically please complete the following form.

An opportunity to obtain this unique set of up-to-the-minute speakers papers covering some of the most topical issues involving the ISM debate.

Page 9 of ReportISM contained a brief report of the Nautical Institute ‘Seaworthiness and the ISM Code’ Seminar which had been held in Southampton on 29th October 2005. . A full set of the Speakers Papers and Proceedings are now available from the Head Office of the Nautical Institute:

The Publications Department
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SE1 7LQ

Phone 020 7928 1351
Fax 020 7401 2817
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Price £30.00 Non-Members
£21.00 Members

‘An Introduction to the ISM Code’ By. Ian MacLean, Solicitor, Bentley Stokes & Lowless

‘The Marine Insurance Act 1906 - Seaworthiness’ By Andrew Fox, Solicitor - Barrister, Davies Johnson & Co

'Seaworthiness and the ISM Code in the Institute Time Clauses' By Charles Davies, Barrister, Stone Chambers

‘Contracts of Carriage - The role of Seaworthiness and the ISM Code’ By Richard Gunn, Solicitor, Richards Butler

‘Seaworthiness and the ISM Code in P&I Insurance’ By Rod Lingard, The UK P&I Club

‘The ISM Code in Legal Proceedings’ By Ian MacLean, Solicitor, Bentley Stokes and Lowless

‘The Eurasian Dream’ - A Review By Simon Kverndal Q.C. Barrister, Quadrant Chambers