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THE ISM CODE The International Management Code for the Safe Operation of Ships and for Pollution Prevention |
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LEGAL AND TECHNICAL REPORTS - Information available on this page |
Legal and Technical Reports and Formal Inquiries
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I have been collecting together both legal and technical reports on issues which are either directly linked to ISM implementation or the operation of Safety Management Systems or at least involved an examination of the way in which safety and / or management systems were conducted and became influential in the conclusions.
These have been separated out into 'Legal Reports', 'Technical Reports and Formal Inquiries' .
I would be most grateful for details of any other judgements or inquiries, from around the world or indeed commentaries on judgements or inquiries or similar critical articles and reports where the legal or technical implications of issues related to the requirements of the ISM Code have been considered. Please send any suitable material, in electronic format, to me at philanderson@consultism.co.uk
It is worth noting that an extensive range of accident and incident reports can be accessed on the 'Accident and Near Miss Reporting' page of this website.
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| Legal Reports There have been surprisingly few cases brought before the Courts post ISM implementation which directly involve ISM issues. However, there have been a number of cases in the past where relevant issues have been considered by the Courts and precedent cases have been established. It maybe that the bench mark for interpreting the evidence in similar cases in the future may have to be reassessed and the legal benchmarks reinterpreted - in light if the requirements of the ISM Code. I have identified a selection of legal cases which I think raised interesting issues at the time they were originally considered and would, possibly, raise even more interesting issues should they have been considered post ISM implementation. I believe there are a number of very important legal issues coming out of the ISM Code which the Courts should address at an early opportunity - subject to a relevant and appropriate cases coming before them for consideration. For example, the actual role of the Designated Person and the concept of attribution with regard to the state of knowledge of the alter ego of the Company. Click on the links underneath each heading of the case to access the full judgement report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Meredith Jones & Co. Ltd. v Vangemar ShippingCo. Ltd. (The Apostolis) [1996] 1 Lloyd's Rep. 475 and [1997] 2 Lloyd's Rep. 241 CA The Apostolis - High Court 1996 BACK TO TOP Davies v. Stena Line Limited [2005] EWHC 420 (QB) - [2005] 2 Lloyd's Rep. 13 A passenger was lost overboard from a high-sided 'ro-ro' ferry Koningin Beatrix in heavy weather. This is an interesting and relevant case in that the Judge was very critical of the Master and the Company in not having conducted a proper risk assessment, not having a properly worked out contingency plan in place for such an eventuality and not providing relevant and appropriate training to deal with such a situation. BACK TO TOP Societe Anonyme Des Mineraio v. Grant Trading Inc. (The 'Ert Stefanie') [1987] 2 Lloyd's Rep. 371 and [1989] 1 Lloyd's Rep. 349 AC The Ert Stefanie - High Court 1987 I find this case quite interesting, and potentially relevant, in that it considered questions of 'privity' and the directing mind of the company within the context of a small company where the technical superintendent was also a director of the company. The question was whether the owner would be entitled to limit liability. This has potential implications for any similar officer of a company who is also a director. The extent to which this may or may not effect the position of the Designated Person is still to be considered. BACK TO TOP Pepera Traders Co. Ltd. and Others v. Hyundai Merchant Marine Co. Ltd. and Another (The 'Eurasian Dream') [2002] EWHC 118 (Comm) - [2002] 1 Lloyd's Rep. 719 This is perhaps the nearest case we have which came close to analysing ISM issues - although the incident occurred on board a Car Carrier prior to the date when it needed to comply with ISM requirements. However, there was a formalised ISM type Safety Management System in operation by the ship management company with the relevant procedure manuals on board. The case involved a total loss of the Car Carrier along with her cargo of motor vehicles. The judge was very critical of the procedures used by the company for the appointment and familiarisation of their Masters, the maintenance of important fire-fighting equipment and the voluminous and irrelevant SMS manuals. The judge found the ship unseaworthy on numerous counts. BACK TO TOP Compania Maritima San Basilio SA v. The Oceanus Mutual Underwriting Association ( Bermuda ) Ltd. (The ' Eurysthenes') [1976] 2 Lloyd's Rep. 171 This case involved a refusal by the liability insurers to indemnify their assured shipowner alleging that the ship had been sent to sea in an unseaworthy condition with the privity of the assured - in breach of Section 39(5) of the Marine Insurance ct 1906. Specifically, they alleged that the ship did not have i) her full compliment of deck officers; ii) proper charts; iii) a serviceable echo sounder; iv) an operative boiler. Of special interest are the deliberations by their Lordships of, and what has become the classic statement about, the 'turning a blind eye' principle. BACK TO TOP Rey Banano Del Pacifico C.A. and Others v. Transportes Navieros Ecuatorianos and Another (The 'Isla Fernandina') [2000] 2 Lloyd's Rep. 15 This case provides an interesting discussion about negligent navigation, inadequate charts and navigational equipment and the navigational competence of the Master and the Third Officer - and bridge management. The case also examined the competence of the individuals and the equipment in the context of caring for the cargo. Of particular relevance is the establishment of causal connection between any alleged failings and the actual unseaworthiness which led to the losses. However, I would venture to suggest that this case would have resulted in a different conclusion post ISM. BACK TO TOP The 'Lady Gwendolen' [1964] 2 Lloyd's Rep' 99 and [1965] 1 Lloyd's Rep. 335 AC The Lady Gwendolen - High Court 1964 This is quite an old case now but very relevant - particularly within the context of interpreting ISM requirements. The case involved a collision and the Court considered the following allegations by the defendant (who was seeking to break limitation): that the collision did not occur without plaintiffs' actual fault or privity in that the plaintiffs (1) (a) failed to instruct the master to place considerations of safety above those of keeping schedule, or to see that such instructions were observed; and (b) failed to instruct master not to proceed at excessive speed in fog or to see that master complied with that instruction; and (2) (a) failed to ensure that master and / or mate were properly instructed in the use of radar (including the fact that the radar did not entitle them to proceed at full speed in fog); and (b) failed to instruct master as to necessity as to necessity of mate being on bridge when using radar. BACK TO TOP The 'Makedonia' [1962] 1 Lloyd's Rep. 316 The case involved general average, salvage and loss of cargo - which allegedly resulted from problems with contaminated fuel oil which was allegedly caused by the incompetence of the engineers on board. This case is interesting, and does have relevance, in that it examined questions of competence of the personnel on board - in this case engineers - but more so examined whether the ship operators had exercised reasonable care in the recruitment and appointment of the engineers. The issue being considered was whether the vessel was seaworthy at the commencement of the voyage and whether the ship operators had exercised the necessary degree of due diligence to make her seaworthy - specifically with regard to the people on board. BACK TO TOP The 'Marion' [1982] 2 Lloyd's Rep. 52 and [1983] 2 Lloyds Rep. 156 AC and [1984] 2 Lloyd's Rep. 1 HL The Marion - High Court 1982 This case pre-dated ISM by more than 20 years but the whole issue hinged upon whether the ship managers had systems and procedures in place to ensure that their Masters removed out of date charts from use. The Master on board the Marion did have an up to date chart on board but chose to use an old, out of date chart. As a consequence the anchor was dropped on top of an oil pipeline which was not shown on the out of date chart. The ship managers were seriously criticised for failing to monitor what was going on onboard their ships. BACK TO TOP Northern Fishing Company ( Hull ) Ltd v. Eddam and Others (The 'Norman') [1958] 1 Lloyd's Rep. 141 and [1959] 1 Lloyd's Rep. 1 CA and [1960] 1 Lloyd's Rep. 1 HL The Norman- High Court 1958 The Norman was a fishing trawler which struck an uncharted rock and sank. The case involved an attempt by the owners to limit liability. Claimants argued that the owners had received information about the rock and had failed to communicate this to the skipper, failed to provide proper voyage planning and thus the allegation was that their actual fault and privity was involved. BACK TO TOP The Patraikos II [2002] 4 SLR 232 The Patraikos II - Singapore High Court The fully loaded container vessel ran aground on the rocks off Horsburgh Light close to the Singapore Straits. A major salvage operation involved removing much of the cargo from the stranded vessel. The Judge in the Singapore Court was very critical of the ability and competence of the Second Officer who was on watch at the time of the grounding as well as the recruitment practices and procedures of the ship operators. The vessel was found to be unseaworthy on account of the second officers incompetence and the ship operators had failed to demonstrate that they had exercised due diligence based upon their recruiting and vetting procedures. BACK TO TOP Manifest Shipping & Co. Ltd. v. Uni-Polaris Insurance Co. Ltd. and La Reunion Europeene [1995] 1 Lloyd's Rep. 651 and [1997] 1 Lloyd's Rep. 360 AC and [2001] 1 Lloyd's Rep. 389 The Star Sea - High Court 1995 This is quite a controversial case and I for one would seriously question whether the same decision would have been reached by the House of Lords post ISM. The case involved the hull and machinery insurers refusing to pay out under the policy on the basis of a failure by the insured to demonstrate utmost good faith, full disclosure and knowingly sending their ship to sea in an unseaworthy condition. The vessel was lost through a serious fire on board. It was established that the Master and crew were inadequately trained as far as fire fighting was concerned, there were serious defects on board - specifically with regard to important fire fighting appliances and equipment and there was serious lack of maintenance. Even more damning was the fact that the same ship management company had lost two other vessels just the year before in very similar circumstances. The case provides a very interesting consideration of the whole question of privity and blind eye knowledge. At the end of the day the insurers did have to pay out. BACK TO TOP The 'Teledo' [1995] 1 Lloyd's Rep. 40 Although predating the ISM Code by a few years, this case is relevant and interesting because the Judge severely criticised the ship operators for failing to have proper systems in place with regard to inspection and maintenance of the ships structure. The ship was an aging bulk carrier which had been suffering the consequences of a hard working life loading and discharging bulk cargoes. However, the allegation was that the maintenance was not keeping on top of the damage. Through serious structural failure the ship was deliberately beached and the cargo lost. BACK TO TOP The 'Torepo' [2002] EWHC 1481 (Admlty) [2002] 2 Lloyd's Rep. 535 This is a case which came very close to having ISM issues formally considered by the Court. The incident occurred early in 1998 in the run up to Phase 1 ISM implementation deadline. Torepo was a tanker which did have a SMS in place and was in the final stages of preparation for ISM certification. However, it is quite clear from the judgement that the judge did have ISM principles in mind when considering the evidence in this case. The incident involved an error of navigation resulting in the ship grounding and having to be salvaged. Whilst the claimants tried to attack the whole of the SMS - the Judge insisted upon remaining focussed on navigation and bridge management procedures. |
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| Technical Reports and Formal Inquiries Click on the main heading of the case to access the full judgement report The Herald of Free Enterprise - Capsize 6 th March 1987 http://www.maib.gov.uk/publications/investigation_reports/herald_of_free_enterprise.cfm Whilst departing the Belgium port of Zeebrugge at 06:30 hrs on Friday 6 th March 1987 , the cross-Channel roll-on-roll-off ferry Herald of Free Enterprise , operated by Townsend Thoresen, capsized in shallow water outside the harbour entrance. 193 people perished in the United Kingdoms worst peacetime marine tragedy since the 'Titanic' in 1912. It transpired that the ship had put to sea with its outer and inner bow doors fully open. As speed built up, a flood of water entered the vehicle deck which resulted in a loss of stability. A formal inquiry was commissioned by the British Government under the chairmanship of Judge Barry Sheen. The origins of the ISM Code can be traced back to this formal inquiry. The full report can be accessed clicking the above link.BACK TO TOP The Bowbelle collision with Matchioness - 20 th August 1989 www.maib.gov.uk/publications/investigation_reports/1990_to_1998/marchioness.cfm On the evening of 20 th August 1989 the dredger 'Bowbelle' and the pleasure boat 'Marchioness', which was full of party goers, were involved in a collision on the River Thames. As a result of the collision the Marchioness sank and 51 of the party goers lost their lives. BACK TO TOP The Bow Mariner - Explosion and Sinking 28 th February 2004 The Bow Mariner was a chemical tanker which exploded and sank off the eastern seaboard of the United States . Most of the crew lost their lives and there was resulting pollution. The US Coast Guard conducted a formal inquiry on behalf of various interested parties. Their findings and conclusions were very critical of the ship owners, ship managers, Master and senior officers - specifically on a whole range of ISM related issues. The USCG report setting out their findings and conclusions can be accessed through the above link. BACK TO TOP The Athos 1 - Striking of Submerged Object Resulting in Major Discharge of Oil The Athos 1 was a fully loaded, and deeply ladened, oil tanker which entered the Delaware River on the 26 th November 2004 . Whilst approaching the discharging terminal she made contact with two submerged objects which punctured the hull resulting in a significant quantity of oil being discharged into the Delaware River -causing extensive pollution damage. The US Coast Guard conducted a detailed investigation which included a close examination of the relevant ISM Safety Management Systems of the vessel. The full USCG report can be accessed through the above link.BACK TO TOP The Erika - Major Pollution 12 December 1999 The tanker Erika broke up and eventually sank in two sections off the Brittany coast on 12 December 1999 . The Bureau d'enquêtes sur les événements de mer BEAmer (French Marine Accident Investigation Office) have published their final report which can be accessed through the above link.BACK TO TOP The Estonia - Sinking - 28 th September 1994 The bow door of the Ro Ro ferry Estonia became detached on the night of 28 th September 1994 whilst she was on a regular passage across the Baltic. As a consequence the Estonia capsized and sank with considerable loss of life. The final report of the Government of the Republic of Estonia into the incident can be accessed through the following link: www.onnettomuustutkinta.fi/estonia/ |
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