The ISM Code in Maritime Litigation: What the Safety Management System Must Show

Every ship that falls under the International Safety Management Code carries a safety management system, and most of them look impressive. Thick manuals. Numbered procedures. Checklists for everything from bunkering to man overboard. Audit certificates in a frame on the bulkhead.

In litigation, the question is never whether the binder exists. It is whether anything in the binder actually happened on the deck.

What the Code requires

The ISM Code is part of SOLAS, the International Convention for the Safety of Life at Sea, under Chapter IX. In the United States it is implemented through 33 CFR Part 96. It applies to passenger ships and to cargo ships of 500 gross tons and up on international voyages, along with some other vessels that adopt it.

The Code does not tell a company how to load cargo or rig a gangway. It tells the company to decide how it will do those things safely, write it down, train people on it, check that it is happening, and fix it when it is not. The main elements are:

• A safety and environmental protection policy
• Defined responsibilities and authority, ashore and aboard
• A designated person ashore with direct access to top management
• The master's responsibility and his overriding authority on safety
• Qualified, trained personnel who understand the system
• Written procedures for key shipboard operations
• Emergency preparedness and drills
• Reporting and analysis of accidents, hazardous occurrences, and nonconformities
• Maintenance of the ship and equipment
• Document control
• Internal audits, management review, and corrective action

Why it matters so much in a lawsuit

A safety management system is the company describing its own standard of care, in writing, before anything went wrong. That is valuable to both sides.

For a plaintiff, a procedure that was not followed, a required risk assessment that was never done, or an audit finding that sat open for a year is evidence the jury can hold in its hands. For a defendant, a system that was followed, documented, audited, and corrected when needed is the strongest answer there is to a negligence claim.

The records I ask for

• The full SMS manual in effect on the date of the incident, not the current version
• Procedures and checklists for the specific operation involved
• Training and familiarization records for the people involved
• Drill records
• Near-miss and accident reports for the vessel, and often for the fleet
• Internal audit reports, nonconformity reports, and how they were closed
• The master's review of the system
• Communications with the designated person ashore
• Safety meeting minutes

The date matters. Companies revise procedures after accidents. That is good practice, but it means the version in the binder today may not be the one the crew was working under.

How a system fails without anyone noticing

The failures I see repeat.

Generic manuals. A procedure written for a different vessel or a different trade, adopted wholesale. It reads well and fits nothing.

Paper drills. Drill logs that are filled in every week with identical entries, sometimes in the same handwriting, on days the vessel was busy with other work.

Reports that go nowhere. Crew members report a hazard. The report is logged. Nothing changes, and nobody tells the crew why.

Open findings. An internal audit identifies a problem. The corrective action is "to be addressed." It is still open when someone gets hurt.

Training by signature. A familiarization form signed on the first day aboard, covering forty items, with no evidence that any of them were actually shown to the new crew member.

What a working system looks like

The opposite is easy to recognize once you have seen enough of them. Procedures that match the vessel. Drills that vary and record what went wrong. Near-miss reports that lead to visible changes. Audit findings closed with evidence, not just a signature. A master who uses his review to push problems up the chain, and a company that answers.

Keeping the opinion in bounds

An expert can explain what the ISM Code and the company's system required, and compare that with what the records show. Whether that amounts to a legal violation, and what it means for liability, is for the court. Opinions that stay on the operational side of that line are much harder to attack.

I have spoken on the ISM Code and risk assessment to the American Association for Justice and at admiralty law conferences, and I worked inside a major fleet's safety system as an officer and as a master. The binder matters. The deck matters more.

About the author

Captain Mitchell S. Stoller is a Master Mariner Unlimited, former Exxon tanker master, and former Los Angeles Harbor pilot. About Captain Stoller