Sunday, July 21, 2019

OUR SENIOR LEGAL CORRESPONDENT WITH AN ANNOUNCEMENT ON THE INTERNATIONAL SAFETY MANAGEMENT SYSTEM

 
File:Brandeisl.jpg
AAB'S LEGAL CORRESPONDENT, THE GHOST OF LOUIS BRANDEIS, FORMER ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT FROM 1916 to 1939



EDITORS' S NOTE: For those of you who are unfamiliar with our legal correspondent and may wonder how a dead guy came to write for us we link you to his original introduction into these pages: 

https://americanadmiraltybooks.blogspot.com/p/admiralty-law.html (Scroll down until you see the image of Justice Brandeis.)


For Info from a live person and expert contact:

Capt. William H. Toohey
Master Mariner (unlimited)
ISM Lead Auditor (ABS)
IMCA  CMID Vessel Inspector

Cell: 504-432-1958
E-mail: skiffrunner@gmail.com.



 As a long deceased jurists I'm beyond semi retirement. I don't do the professional reading that I once did but my interest in the law and the evolution of the American legal system continues. Any interest that so involved the mind as the law did for me, stays with you in the after life. This is why I was so pleased when the Great Catfish offered me an opportunity to once again write on legal matters for publication. But I must admit I'm a bit tardy in reporting on a development in Admiralty that has actually been decades coming and has now reached fruition. I became moved to write with some alacrity when I recently realized that this development that I had perceived on the far horizon a long time ago had now come to fruition.



 The International Safety Management Code (ISM) first moved from discussions into codified international law, and more recently into United States statutory law and detailed regulation. This changes everything related to limitation of liability and the determination of civil liabilities and even criminal culpability in admiralty tribunals. 



 The ISM Code is a product of the United Nations International Maritime Organization's  (IMO);  Marine Safety Committee (MSC). The formal original name for "the code" is the International Management Code for the Safe Operation of Ships and for Pollution Prevention. It became known as the International Safety Management Code after amendments in May of 2005 by way of MSC .273 (85) and entered into force on July 2006. The Resolution as amended entered into force on July 1, 2010.  Additional amendments followed in 2013. "The code" entered into force at least as codified international law by way of the signatory nations to the International Safety of Life at Sea Convention on January 1, 2015. Some more time would elapse before the signatory nations (66 at my last count, representing about 98% of world shipping by tonnage) would adopt the code into national law or regulation.  The ISM is implemented into US law at 46 USC 3201-3205 and detailed regulations enforceable by the U.S. Coast Guard are found in 33 CFR part 96 , subpart D. 



 This is not just another safety code dealing with shipboard equipment and conditions. This code imposes on ship owners and managers in the international trades the personal and corporate duty to create a "culture of safety" within their company and fleets, My fellow legal practitioners let that sink into the deepest recesses of your admiralty trained minds. The effects of this duty profoundly alter the standing order on limitation of liability as we have known it for better than 200 years.  Even more profoundly does the "code" affect civil liabilities in the now most likely event that limitation is denied , it also extends the potential for criminal culpability into the executive suite. This is serious, the time is short, the danger great . The old days when a ship owner and his executives could point to the Master and claim that the cause of an accident was beyond the privity and knowledge of the shore based corporate officers are over. "The Code" requires management at all levels to participate in the creation of the ship's safety management plan, and take responsibility for its effectiveness. The corporate ISM program, complete with formal periodic auditing and third party periodic over sight is here.  Ship owners you now need legal scholars , lawyers to aid you in the required planning and documentation , you need legal counseling as you put together the required system to help you insure that your efforts will pass the "due diligence test". The "due diligence test" is a very tough standard. The consequences for failure can be very high, in some international jurisdictions , if there is loss of life you could even face a capital charge (there was a reason why that Korean ferry owner committed suicide  in the wake of the passenger school children that died on his ship. His cost savings efforts resulted in a hidden malfeasance and hidden flaw that may have resulted in the removal of the death penalty from the Master's trial). By having a lawyer in your planning team as a counselor vice a litigator you automatically go a long way toward assuring a "good faith effort" at "due dilligence". A "good faith effort" won't clear you of liability or culpability but it is a strong mitigating factor that could keep your company away from enterprize killing penalties, and keep you out of jail or even off the gallows. 



 As a lawyer you don't want to be caught flat footed when the phone rings with your first case under "the Code".  With the able assistance of the AAB I will be posting training aids on "the Code" here on the AAB blog. Resolve today to master "the Code" that forever changes the law of admiralty for limitation, and post accident criminal and civil liabilities. Corporate culture changes slowly. You may have clients even now who having learned of the code are already seeking cost shaving measures. That effort, if unguided, can result in a long fall from "due dilligence". 

If you have serious questions contact our resident ISM expert via E-mail or phone


File:Supertanker AbQaiq.jpg

William H. Toohey III AFNI
Toohey Marine LLC
Master Unlimited
ISO 9001:2015 Lead Auditor Class
(Bureau Veritas)
ISM Lead Auditor (ABS Certified)
IMCA CMID Vessel Inspector
Vessel Compliance/Training/Safety Officer
Cell: 504-432-1958
_______________________________________
ISM PART 2:
INTRODUCING THE INTERNATIONAL SAFETY MANAGEMENT CODE FOR LAWYERS


The ISM applies globally to ocean going ships. 



by Capt. William H. Toohey, Master Mariner and ISM Lead Auditor (ABS)
The United States signed the treaty but made an exception for its Jones Act or domestic fleets  such as ferries, excursion boats, tugs, tow boats, and supply boats


Despite the exception we believe that once the courts get involved this changes every thing.
The book imaged above is for sale at Walmart .com 


BACKGROUND: The ISM Code is a system for the management of safety aboard ships mandated by the International Maritime Organization (IMO), a body within the United Nations focused on maritime safety. The detailed code was authorized to be developed by article nine of the Safety of Life at Sea Convention (SOLAS)The United States is signatory to the SOLAS Convention and has specifically adopted the ISM Code into U.S law and regulation (46 USC 3201-3205 and 33 CFR Part 96, subpart D. The implementation and enforcement of the code is expected over time to have profound effects on admiralty adjudication in the United States and other western nations.
The code is not another set of detailed technical safety requirements for compliance by the ship board officers. It is a general admonition to ship owners / managers to "establish a culture of safety" with some details as to the how and why. Once the courts become aware of this code through motions and memorandums in support of motions by lawyers seeking to defeat limitation of liability much new precedent is probable in the future. Much of this precedent will be quite different from the days when limitation of liability of a ship owner only required that the proximate cause of an accident was not within his "privity and knowledge". It is now national law and regulation that ship owners / managers create a corporate culture of safety that fully supports the Master's efforts at maintaining safety aboard. The new international convention, national statute, and related regulations place upon shore side management the duty to provide  the master with a ship safety plan, and to assist in every way possible to aid the master in implementation.
Lawyers who represent injured seamen, or defend assurers or owners must at least be aware of the impact of this legal development on litigation. Lawyers who hope to counsel clients on the implementation and administration of this new legal regime must have a more detailed understanding. However, since this is not a detailed equipment regulation scheme, lawyers do not need extensive training in the nautical arts, sciences and technologies to counsel clients. Where lawyers are needed is in helping owners and management in assuring that they are exercising due diligence in implementing and administering the code. Moreover, we believe that lawyer presence as counselors regarding due diligence is bound to be considered a factor in court determination of good faith effort. Where due diligence is not judged completely present, a good faith effort possibly could be a mitigating factor when the court considers criminal culpability or civil liabilities
We believe that there is an immediate need for such information to be disseminated within the Admiralty Bar. Presently, most ISM training is provided by Classification societies to compliance surveyors most of whom are licensed merchant marine officers. The Code itself seems to anticipate that such technical types may not be well suited to assist management in their nontechnical attempt at "establishing a culture of safety". There is a requirement for third party auditing by knowledgeable persons not connected to the parties issuing compliance documents. In the United States the ABS, a classification society and provider of most of the existing ISM related training is the issuing authority for issuance of compliance documents. In conjunction with the Marine Division of Helios Ruehls, Inc. we have prepared an introductory course  expressly for lawyers by ISM trained Merchant Marine Officers and taught without CLE credit to lawyers providing input before the course being finalized for CLE credit application.  Our lead instructors have been trained and credentialed as auditors of ISM by classification Societies. In the United States  the ABS ( American Bureau of Shipping) , is the  the compliance certificate issuing authority. Our planned courses in ISM familiarization for lawyers are not prepared by the ABS , the U.S. compliance certificate issuing
authority, This considers the provision in the ISM code that at least one advisor or external auditor should have no connection to the certificate of compliance issuing authority (ABS), When offered as a class to the admiralty bar the course will offer CLE credit, We believe that the outside auditor or consultant described in the code free of connection to the certificate of compliance granting authority should be a lawyer well familiar with the ISM system. The other auditors will look at the management system, safety plans. and even shipboard equipment requirements. The final independent auditor should be able to evaluate and advise whether or not the ship owning company is making progress  towards "creating a corporate culture of safety" and doing so within the meaning of "due diligence" as required by the code. We think that only by exerting "due diligence" can a ship owner or CEO protect himself from personal liability and even criminal prosecution under the code. We believe the best counsel to have when trying to evaluate your required "due diligence is a lawyer
 .
CLE CREDIT SOUGHT: We seek 1 hour of CLE credit for the described course which is actually lesson one of a more detailed course for which we will seek additional CLE credit hours  as we continue to test teach this course with various participating law firms. We seek approval of this lesson as a stand-alone course as we feel it represents the minimum knowledge that any admiralty lawyer should have concerning the code immediately. Every maritime lawyer should have the level of detailed awareness of the code represented in this course immediately. Such an awareness should temper any initial opinions the lawyer may have regarding limitation, and trigger research before offering opinion. This is vital at this moment in the history of the development of the code as the code has such a serious effect on centuries old precedent relative to maritime limitation of liability.
When CLE credit is awarded and classes are scheduled we will announce all relevant information in these pages
For more information on the ISM Code E-mail 
File:Supertanker AbQaiq.jpg
William H. Toohey III AFNI
Toohey Marine LLC
Master Unlimited
ISO 9001:2015 Lead Auditor Class 
(Bureau Veritas)
ISM Lead Auditor (ABS Certified)
IMCA CMID Vessel Inspector
Vessel Compliance/Training/Safety Officer
Cell: 504-432-1958



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INTRODUCTION TO THE ISM CODE FOR LAWYERS:  INITIAL CLASS MEETING HAND OUT CLE COURSE LESSON NO. 1 ( Please note contact Capt. William Toohey of Helios Ruehls for attendance at  the next publicly offered CLE course presently under development. Down loading or copying and printing this hand out does not provide anything in terms of CLE credit. 
(C) 2019 by Helisos Ruehls , Inc.
WHAT IS THE ISM CODE?
The "ISM" Code refers to the "International Safety Management Code" promulgated by the International Maritime Organization (IMO) of the United Nations. It is a detailed code of safety management that describes how vessel owners, operators and management are to "establish a culture of safety" in ship operations.
DOES THE ISM CODE HAVE THE FORCE OF LAW IN THE UNITED STATES?
Yes, internationally it is an outgrowth of the Safety of Life at Sea (SOLAS) Convention, a
multilateral maritime safety treaty that the United States is signatory to. This convention was amended starting in the late 1990s and continuing into 2017, and anticipated to be periodically amended beyond, to provide for a code that the current and anticipated future ICM Codes model. By our last count in addition to the United States 63 other seafaring nations representing approximately 99% of the world's shipping by tonnage are signatory to the convention and are actively engaged in enforcement of the code. By virtue of the US
Constitution, such international treaties as the U.S. is signatory to are part of the "law of the land". In addition, the U.S. has adopted most elements of the treaty into statutory law and detailed regulation. The U.S. adopts most of the "code" by Federal Statute at 46 USC 32013205 and detailed Coast Guard enforced regulations may be found in 33 CFR Part 96 Subpart D. The U.S. Coast Guard is the "Responsible Administration" as suggested in the Code. However, the USCG relies mostly on its "Trusted Agent" the American Bureau of Shipping (ABS) for the day to day administration of the Code including issuance of the various "documents of compliance" and the routine performance of certain of the required "third party audits" of the ship owner's resulting Safety Management Program.
NOTE: It may be useful at times to be able to cite to the elaborate history of the Code's development much as it is occasionally desirable to bring into pleadings and memorandums in support, the legislative history of a statute or the evolutionary process of detailed regulations. The vocabulary and citation system of the IMO and its related Marine Safety Committee (MSC) are different from, but bears some similarity to the American system of legal citation. A few noteworthy points follow:
  1. Adoptions by the IMO Assembly are a bit like the enabling statutes in U.S. admiralty law that direct the U.S. Coast Guard (USCG) to promulgate detailed safety related regulations. The sub body that the IMO Assembly usually addresses is their own MARINE SAFETY COMMITTEE (MSC). The MSC generally does the work of generating technically detailed codes. The IMO Assembly sometime also addresses national governments and their maritime safety administrations or agencies in a general way advocating state action in pursuit of compliance with IMO/ MSC generated safety codes. Adoptions by the IMO Assembly are cited by the letter "A" followed by a numeric part and section identifier. An example of an Assembly citation would be "A.596 (15)" which called on the MSC to develop guidelines for shipboard and shore based management to ensure safe operation of RoRo ferries. Marine Safety Committee "resolutions" are often reflected in resulting nation state detailed regulations verbatim. An example of an MSC Resolution citation would be MSC. 353 (92) which describes amendments entered into force for the Code on 1 January 2018.
  2. THE ISM CODE is codified "International law" and has been adopted into statute and regulation by most of the 63 nations signatory to the SOLAS Convention.
OBSERVABLE RESULTS OF THE WIDE SPREAD INTERNATIONAL ADOPTION OF THE CODE:
  1. While not a lot of case law and related precedent has emerged yet, there is an observable trend towards the Code being an instrument for defeating actions in limitation of liability. The requirement of the Code for ship owning /operating companies to create a "culture of safety" has a natural inhibiting effect on the ability of management and owners to claim that an accident was due to actions or conditions "beyond the "probity and knowledge" of the owner.
  2. There is a growing trend in the U.S. and internationally to hold various levels of management individually civilly liable and / or criminally culpable for a growing number of accidents.
IS THERE A CONCISE GUIDE TO THE ISM CODE AVAILABLE IN PRINT?
"THE ISM CODE, International safety Management Code With Guidelines For
Implementation (last edition at this writing 2018) ,
IMO Publication Sales Number: ID117E
ISBN Number (978-92-801-1696-0
This is an 84-page complete guide including citations and many direct quotes from the code meant as a hand book for all those involved in the Code compliance effort. REMEMBER THAT THE CODE FOR MANAGEMENT DOES NOT CONTAIN MUCH IN THE WAY OF EQUIPMENT RELATED TECHNICAL DATA. THE REQUIRED SYSTEM IS A MANAGEMENT SYSTEM SUBJECT TO FREQUENT PERIODIC PERFORMANCE AUDITING.
LAWYERS HAVE A ROLE TO PLAY IN THE DEVELOPMENT OF EACH CORPORATE CODE AND SUBSEQUENT PERFORMANCE AUDIT PROGRAMS. THE CODE MUST
BE DESIGNED WITH "DUE DiLLlGENCE" IN MIND. SHOULD DUE DILLIGENCE BE FOUND WANTING SUBSEQUENT TO AN ACCIDENT; PROVING A GOOD FAITH
EFFORT MAY BE THE DEFENSE THAT REDUCES JUDGEMENT AMOUNTS OR
CRIMINAL PENALTIES IMPOSED. 02019 Inc
OBSERVATION: Both the ISM Code and U.S. detailed regulations require periodic corporate internal and third party ISM program performance audits. The ABS offers services for most of these but THE ABS is the compliance document issuing authority. The convention provides at article 2.3:
"Any organization performing verification of compliance with provisions of the ISM Code should ensure that the personnel providing consulting services and those involved in the certification procedure are independent of one another. " [See MSC. 208 (81)].
Admiralty lawyers aren't quite in a compliance market for their services relative to the code but they can cite to the above section in soliciting counseling roles at both the original design of the corporate Code compliance system and during the continuing auditing processes. THE CODE IS ABOUT '{DIJE DILLIGENCE" and that is the only thing that will keep corporate income intact and managers out of prison in the wake of serious, especially death dealing accidents. In the event that due diligence is found wanting in a particular instance A GOOD FAITH EFFORT appears to have an effect in reducing the severity of consequences for managers.


HELIOS RUEHLS. INC. MOST URGENTLY SUGGESTS TO ALL SHIPPING COMPANY EXECUTIVES AND MANAGEMENT TO BRING SKILLED ADMIRALTY LAWYERS FAMILIAR WITH THE CODE INTO THE EARLY PLANNING STAGES AS COUNSELORS AND TO CONTINUE TO BRING THEM INTO THE CORPORATE INTERNAL AUDITING PROCESSES AT LEAST ANNUALLY.

If you have serious questions contact our resident ISM expert via E-mail or phone:


William H. Toohey III AFNI
Toohey Marine LLC
Master Unlimited
ISO 9001:2015 Lead Auditor Class (Bureau Veritas)
ISM Lead Auditor (ABS Certified)
IMCA CMID Vessel Inspector
Vessel Compliance/Training/Safety Officer
Cell: 504-432-1958
. or E mail to aabmain@aol.com or leave comment at the end of this scroll. 

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Watch this space for additional information on ISM as we continue to develop our CLE course in ISM and adapt it for non credit delivery over the Internet. Check out our other content for lawyers such as our ADMIRALTY LAW SECTION and our AUTHORITATIVE LITERATURE SECTION
If you have serious questions contact our resident ISM expert via E-mail or phone

File:Supertanker AbQaiq.jpg
William H. Toohey III AFNI
Toohey Marine LLC
Master Unlimited
ISO 9001:2015 Lead Auditor Class
(Bureau Veritas)
ISM Lead Auditor (ABS Certified)
IMCA CMID Vessel Inspector
Vessel Compliance/Training/Safety Officer
Cell: 504-432-1958


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