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Let us never forget..... The ISM Code was never intended to create new interparty liabilities. The Code was formulated with the clear purpose of improving and extending standards of maritime safety ! HOWEVER...
The Law
The Tests Exercise of due diligence Duty of care Fault and privity Wilful misconduct Recklessness Utmost good faith
The Tests
In the law of carriage of goods by sea neither seaworthiness nor due diligence is absolute. Both are relative, among other things, to the state of knowledge and standards prevailing at the time Lord Sumner Bradley & Sons Ltd. v. Federal Steam Navigation Co (1926) 24 Ll.L.Rep.446; (1927) 27 Ll.l Rep. 395
The Tests
Seaworthiness must be judged by the standards and practices of the industry at the relevant time, at least so long as those standards and practices are reasonable Mr Justice Cresswell Papera Traders Co Ltd & others v. Hyundai Merchant Marine Co Ltd & Another ( The Eurasian Dream); (2002) 1 Lloyds Rep. 719
INEFFECTIVE DPA
ACCIDENT
FAILURE OF SMS
The DPA is exposed.....BUT... They are not on their own the buck is unlikely to stop at the desk of the DPA...
Issues of Attribution
Issues of Attribution Where does the buck stop? The role of the highest levels of management The role of the Designated Person Who is the alter ego? Does it matter?
If something does go wrong and we find ourselves facing prosecution are we insured for the costs of defending ourselves?
A question of evidence
A Question of Evidence
Should we realistically expect an ex Master or ex Chief Engineer for example to be able to pick up the batten and run with a DPAs job?
Conclusion
Has the ISM Code been high-jacked by the lawyers? Where are all the prosecutions?
If something does go wrong and we find ourselves facing prosecution are we insured for the costs of defending ourselves?
Should we realistically expect an ex Master or ex Chief Engineer for example to be able to pick up the batten and run with a DPAs job?
Conclusion Legal liability will be measured against the ability of ship operators to manage safety. The demonstration of that ability will become evident from the way in which they have set up, implemented and operate their SMS. The focus will quickly fall upon the DPA and how he / she is performing their job! But the buck wont / might not stop there!
The End
Dont Mess With It! YES Did You Mess With It?
YOU IDIOT! NO Anyone Else Knows? YES YES Will it Blow Up In Your Hands?
Youre STUFFED!
NO
Hide It
NO
NO
Look The Other Way
YES
NO PROBLEM!
Dr. Phil Anderson BA (Hons.), D.Prof., FNI, AMAE, MIEW, Master Mariner Managing Director
philanderson@consultism.co.uk www.consultism.co.uk