International Safety Management Ism Code Essay

Pages: 10 (4136 words)  ·  Bibliography Sources: 10  ·  File: .docx  ·  Level: College Senior  ·  Topic: Business - Management

SAMPLE EXCERPT . . .
Exemption from liability by crew negligence

Based on the Hague-Visby Rules, there is possibility of the shipowner exempting himself from liability for damage or loss which has been caused by neglect, act, or default of the mariner, master or the servants of the carrier in the management or navigation of the ship. In case of a loss that tend to be as a result of negligence by the crew and a prove can be given by the ship owner that his crew member were properly certified, they were competent and the owner of the ship exercised reasonable care in the selection of the crew members, but under ISM Code it could not be easy for the shipowner to defend himself under "crew negligence." Here the ISM Code is to lower the proportion of cases where crew negligence is to be regarded as the sole cause of a loss. While under the Hague-Visby Rules the shipowner is obligated to exercise due diligence in making sure that the ship is properly manned, seaworthy, equipped and supplied; the ISM Code acting as a new safety management standards is to explains proper manning in ensuring there is well manned of the ship with qualified, certified and medically fit seafarers.

Question of evidence

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Another impact of ISM Code tend to be that it make it easy for the claimant to get enough documented evidences that establishes if or not the owner could be in breach of his duty of care. As per the Hague-Visby Rules, any other person be it the carrier claiming exemption has to prove due diligence in case of damage or loss that has been caused by unseaworthiness. The requirement of the ISM Code is for the shipowner to produce several written materials like reports, procedures and documents within the SMS. Out of such materials, the claimant could be in a position to find out which systems were in place and whether they were properly operated. On different occasion, when the asked SMS documents are not provided, this could prejudice the shipowner. Maybe the SMS document could act as evidence against the shipowner.

The impact on limitation of shipowner's liability

Essay on International Safety Management Ism Code Assignment

There are two major principles that are accepted in terms of legal limitation of the liability of the shipowner for loss or damage. The first one is the legal limit of liability that varies with the size of the ship. The second one is that the shipowner will never be entitled in case the loss or damage was due to his personal fault or neglect, (Pamborides, GP., 1996).

Actual fault or privity

Based on the 1957 convention, the shipowner might lose the right to limitation on failing to give prove that he was not the cause of the relevant damage through his actual fault or privity. In this case there is likelihood of ISM Code having a great direct effect. At first it will be of importance to verify the organization that the actual fault or privity is to be regarded the shipowner's. Whoever his fault or privity is to be considered the shipowner has to be individual who represent the directing minds and will of the company. Actual fault of a shipowner is seldom in question due to the physical separation between ship and shore. On the other hand in case the fault that has caused the accident is traced back to managerial shortcoming in the manning, maintenance, supplying or training of the vessel, definitely the claimant will be helped by the ISM Code. Acting as a mandatory law, the ISM Code lays down the requirements for maintenance and establishing a SMS in the organization. Therefore any defect within the SMS could be enough to establish the actual fault on the part of the shipowner.

Failing to implement the SMS may result to the allegation that the senior management of the company is a fault. The claimant will be enabled by the ISM Code to acquire good disclosure of the company's SMS that was to be expressly established to protect the shipowner from the failures. For example, privacy can take a form where an individual who is in the high position in an organization had knowledge about the risk but did not do whatever was necessary to stop the risk. Privity is extended from the actual knowledge in catching individuals who turn a blind eye to the circumstance. ISM Code (article 9) will therefore make sure that all non-conformities, hazardous and accidents situation is reported to the company.

Recklessness with knowledge

Based on the LLMC 1976, an individual who is liable is to lose his right to limit liability after it if a prove shows that the cause of the loss was due to personal act or omission that took place with intension of causing such a loss,( Macdonald, C., 1998) . According to the LLMC 1976 Convention, there is a different standard of challenge to the right of limitation of the person liable. It seems to be narrower as compared to the "actual fault or privity" which has been described within the 1957 Convention. Some researches describe the LLMC 1976 Convention to be more favorable to shipowners.

Shipowner finds himself limit liability more easily as compared to previously. All the recklessness, the burden of proof as well as the knowledge has been shifted to the claimants. Therefore, there will be very little significant effects on the right of a shipowner to limit based on the LLMC 1976 Convention. On the other hand what is required for reporting defects that is affecting the safety of the ship from the top most chain of command within a company is likely to raise the risk to the shipowner's right of limitation. ISM Code (article 4) requirement is to establish a link between the safety operation of every ship and the highest management level in the operating company or shipowning.

The status of the designated persons

Based on the article 4 of the ISM Code, any individual ashore is to be designated to have direct access to the highest level of management in ensuring safe operation of every ship and to act as a link between those on board and the company. The responsibilities as well as authorities of designated individuals are to monitor the safety and pollution prevention aspects of the operation of every ship.

Though some argue otherwise, the structure and provisions of the ISM Code do not seem to suggest that the designated individuals should be given access to highest level of management; therefore it is assumed that the designated persons should not be a senior manager himself. Within ISM Code it is specified that the knowledge of designated persons is to be deemed to be in the possession of top management, as well as to the information which the designated persons was to pass properly onto the top management, (Sahatjian, LC., 1998). . Therefore the knowledge of designated person will not have to constitute the knowledge of the shipowner. Whatever omission or action should not necessarily be that of the legal persona of the company, only if the constitution of that company states so.

Shipping industry has its risks. The shipowners could find themselves suffering a loss or damage to their ships as well as becoming liable to pay damages to other ships or to owners of the cargo in addition to have to be answerable for the damage to the marine environment. They might as well be liable to the personal injury or loss of life of passengers or crew members who are onboard. There it is necessary to insure against such perils of the marine. ISM Code has set international standards in making sure there is safety at sea, human injuries or loss of life prevention as well as avoiding damage that is caused to the environment especially the marine environment and to property.

Change of policy

Adjustments have been made by the International Group of P & I Club, Hull and Machinery underwriters' cargo insurer in the conditions of the policies in meeting the introduction of the ISM Code. Some of the provisions within the P & I Clubs rules are that the vessel entered is to comply with the statutory requirements, (Levy, H., 1996). Since ISM Code and its implementation into the national laws of relevant flag states come into force, compliance with the ISM Code has been put to be a must requirement. This has been applied to the Clubs as a policy where they do not allow entry of a vessel that does not comply with the relevant requirements of ISM Code.

Acting as a liability insurance, P & I insurance offer insurance cover to the assured members to cover for omissions and errors that have been made by the employees that a member can be proven liable, and this has never changed even after introduction of ISM Code. But on the other hand as per the rules of Skuld a member… [END OF PREVIEW] . . . READ MORE

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