Regulation (EC) No 336/2006 of the European Parliament and of the Council of 15 February 2006 on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95 (Text with EEA relevance)

Article 1

Objective

The objective of this Regulation is to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, referred to in Article 3(1), by ensuring that companies operating those ships comply with the ISM Code by means of:

(a) the establishment, implementation and proper maintenance by companies of the shipboard and shore-based safety management systems; and

(b) the control thereof by flag and port State administrations.

Article 2

Definitions

For the purpose of this Regulation the following definitions shall apply:

(1) ‘the ISM Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation by Assembly Resolution A.741(18) of 4 November 1993, as amended by Maritime Safety Committee Resolution MSC.104(73) of 5 December 2000 and set out in Annex I to this Regulation, in its up-to-date version;

(2) ‘recognised organisation’ means a body recognised in accordance with Directive 94/57/EC;

(3) ‘company’ means the owner of the ship or any other organisation or person, such as the manager or the bareboat charterer, who has assumed responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the ISM Code;

(4) ‘passenger ship’ means a ship, including a high-speed craft, carrying more than 12 passengers, or a passenger submersible craft;

(5) ‘passenger’ means every person other than: (a) the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and (b) a child under one year of age;

(6) ‘high-speed craft’ means a high-speed craft as defined in Regulation X-1/2 of SOLAS, in its up-to-date version. For high-speed passenger craft, the limitations indicated in Article 2(f) of Directive 98/18/EC shall apply;

(7) ‘cargo ship’ means a ship, including a high-speed craft, which is not a passenger ship;

(8) ‘international voyage’ means a voyage by sea from a port of a Member State or any other State to a port outside that State, or vice versa;

(9) ‘domestic voyage’ means a voyage in sea areas from a port of a Member State to the same or another port within that Member State;

(10) ‘regular shipping service’ means a series of ship crossings operated so as to serve traffic between the same two or more points, either: (a) according to a published timetable; or (b) with crossings so regular or frequent that they constitute a recognisable systematic series;

(11) ‘ro-ro passenger ferry’ means a seagoing passenger vessel as defined in Chapter II-1 of SOLAS, in its up-to-date version;

(12) ‘passenger submersible craft’ means a passenger-carrying mobile vessel which primarily operates under water and relies on surface support, such as a surface ship or shore-based facilities, for monitoring and for one or more of the following: (a) recharging of power supply; (b) recharging high pressure air; (c) recharging life-support;

(13) ‘mobile offshore drilling unit’ means a vessel capable of engaging in drilling operations for the exploration for or exploitation of resources beneath the seabed such as liquid or gaseous hydrocarbons, sulphur or salt;

(14) ‘gross tonnage’ means the gross tonnage of a ship determined in accordance with the International Convention on Tonnage Measurement of Ships, 1969 or, in the case of ships engaged exclusively on domestic voyages and not measured in accordance with the said Convention, the gross tonnage of the ship determined in accordance with national tonnage measurement regulations.

Article 3

Scope

This Regulation shall apply to the following types of ships and to companies operating them:

(a) cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages;

(b) cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag;

(c) cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag;

(d) mobile offshore drilling units operating under the authority of a Member State.

This Regulation shall not apply to the following types of ships or to the companies operating them:

(a) ships of war and troopships and other ships owned or operated by a Member State and used only on government non-commercial service;

(b) ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes;

(c) fishing vessels;

(d) cargo ships and mobile offshore drilling units of less than 500 gross tonnage;

(e) passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18/EC.

Article 4

Compliance

Member States shall ensure that all companies operating ships falling within the scope of this Regulation comply with the provisions of this Regulation.

Article 5

Safety management requirements

The ships referred to in Article 3(1) and the companies operating them shall comply with the requirements of Part A of the ISM Code.

Article 6

Certification and verification

For the purposes of certification and verification, Member States shall comply with the provisions of Part B of the ISM Code.

Article 7

Derogation

In the circumstances set out in paragraph 1 and, if applicable, paragraph 2, the following procedure shall apply:

(a) the Member State concerned shall notify the Commission of the derogation and of the measures which it intends to adopt;

(b) if, within six months of the notification, it is decided, in accordance with the procedure referred to in Article 12(2), that the proposed derogation is not justified or that the proposed measures are not sufficient, the Member State shall be required to amend or refrain from adopting the proposed provisions;

(c) the Member State shall make any adopted measures public with a direct reference to paragraph 1 and, if applicable, paragraph 2.

Article 8

Validity, acceptance and recognition of certificates

However, for ships engaged on a regular shipping service, compliance with the ISM Code by the Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued on behalf of administrations of third countries shall be verified, by any appropriate means, by or on behalf of the Member State(s) concerned, unless they were issued by the administration of a Member State or by a recognised organisation.

Article 9

Penalties

Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Article 10

Reporting

Article 11

Amendments

Article 11a

Exercise of the delegation

Article 12

Committee procedure

The period provided for in Article 5(6) of Decision 1999/468/EC shall be set at two months.

Article 13

Repeal

Article 14

Entry into force

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

As concerns cargo and passenger ships, which are not already required to comply with the ISM Code, this Regulation shall apply as from 24 March 2008.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

INTERNATIONAL MANAGEMENT CODE FOR THE SAFE OPERATION OF SHIPS AND FOR POLLUTION PREVENTION

(INTERNATIONAL SAFETY MANAGEMENT (ISM) CODE)

PART A — IMPLEMENTATION

The following definitions apply to Parts A and B of this Code.

1.1.1.‘International Safety Management (ISM) Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the Assembly, as may be amended by the organisation.

1.1.2.‘Company’ means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who on assuming such responsibility has agreed to take over all the duties and responsibility imposed by the Code.

1.1.3.‘Administration’ means the government of the State whose flag the ship is entitled to fly.

1.1.4.‘Safety management system’ means a structured and documented system enabling company personnel to implement effectively the company safety and environmental protection policy.

1.1.5.‘Document of Compliance’ means a document issued to a company which complies with the requirements of this Code.

1.1.6.‘Safety Management Certificate’ means a document issued to a ship which signifies that the company and its shipboard management operate in accordance with the approved safety management system.

1.1.7.‘Objective evidence’ means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified.

1.1.8.‘Observation’ means a statement of fact made during a safety management audit and substantiated by objective evidence.

1.1.9.‘Non-conformity’ means an observed situation where objective evidence indicates the non-fulfilment of a specified requirement.

1.1.10.‘Major non-conformity’ means an identifiable deviation that poses a serious threat to the safety of personnel or the ship or a serious risk to the environment that requires immediate corrective action and includes the lack of effective and systematic implementation of a requirement of this Code.

1.1.11.‘Anniversary date’ means the day and month of each year that corresponds to the date of expiry of the relevant document or certificate.

1.1.12.‘Convention’ means the International Convention for the Safety of Life at Sea, 1974 as amended.

1.2.1.The objectives of the Code are to ensure safety at sea, prevention of human injury or loss of life, and avoidance of damage to the environment, in particular, to the marine environment, and to property.

1.2.2.Safety management objectives of the company should, inter alia:

1.2.2.1.provide for safe practices in ship operation and a safe working environment;

1.2.2.2.establish safeguards against all identified risks; and

1.2.2.3.continuously improve safety management skills of personnel ashore and aboard ships, including preparing for emergencies related both to safety and environmental protection.

1.2.3.The safety management system should ensure:

1.2.3.1.compliance with mandatory rules and regulations; and

1.2.3.2.that applicable codes, guidelines and standards recommended by the organisation, administrations, classification societies and maritime industry organisations are taken into account.

The requirements of this Code may be applied to all ships.

Every company should develop, implement and maintain a safety management system (SMS) which includes the following functional requirements:

1.4.1.a safety and environmental protection policy;

1.4.2.instructions and procedures to ensure safe operation of ships and protection of the environment in compliance with relevant international and flag State legislation;

1.4.3.defined levels of authority and lines of communication between, and amongst, shore and shipboard personnel;

1.4.4.procedures for reporting accidents and non-conformities with the provisions of this Code;

1.4.5.procedures to prepare for and respond to emergency situations; and

1.4.6.procedures for internal audits and management reviews.

2.1.The company should establish a safety and environmental protection policy which describes how the objectives, given in paragraph 1.2, will be achieved.

2.2.The company should ensure that the policy is implemented and maintained at all levels of the organisation both ship-based as well as shore-based.

3.1.If the entity who is responsible for the operation of the ship is other than the owner, the owner must report the full name and details of such entity to the administration.

3.2.The company should define and document the responsibility, authority and interrelation of all personnel who manage, perform and verify work relating to and affecting safety and pollution prevention.

3.3.The company is responsible for ensuring that adequate resources and shore-based support are provided to enable the designated person or persons to carry out their functions.

To ensure the safe operation of each ship and to provide a link between the company and those on board, every company, as appropriate, should designate a person or persons ashore having direct access to the highest level of management. The responsibility and authority of the designated person or persons should include monitoring the safety and pollution prevention aspects of the operation of each ship and to ensure that adequate resources and shore-based support are applied, as required.

5.1.The company should clearly define and document the master's responsibility with regard to:

5.1.1.implementing the safety and environmental protection policy of the company;

5.1.2.motivating the crew in the observance of that policy;

5.1.3.issuing appropriate orders and instructions in a clear and simple manner;

5.1.4.verifying that specified requirements are observed; and

5.1.5.reviewing the SMS and reporting its deficiencies to the shore-based management.

5.2.The company should ensure that the SMS operating on board the ship contains a clear statement emphasising the master's authority. The company should establish in the SMS that the master has the overriding authority and the responsibility to make decisions with respect to safety and pollution prevention and to request the company's assistance as may be necessary.

6.1.The company should ensure that the master is:

6.1.1.properly qualified for command;

6.1.2.fully conversant with the company's SMS; and

6.1.3.given the necessary support so that the master's duties can be safely performed.

6.2.The company should ensure that each ship is manned with qualified, certificated and medically fit seafarers in accordance with national and international requirements.

6.3.The company should establish procedures to ensure that new personnel and personnel transferred to new assignments related to safety and protection of the environment are given proper familiarisation with their duties.

Instructions which must be provided prior to sailing should be identified, documented and given.

6.4.The company should ensure that all personnel involved in the company's SMS have an adequate understanding of relevant rules, regulations, codes and guidelines.

6.5.The company should establish and maintain procedures for identifying any training which may be required in support of the SMS and ensure that such training is provided for all personnel concerned.

6.6.The company should establish procedures by which the ship's personnel receive relevant information on the SMS in a working language or languages understood by them.

6.7.The company should ensure that the ship's personnel are able to communicate effectively in the execution of their duties related to the SMS.

The company should establish procedures for the preparation of plans and instructions, including checklists as appropriate, for key shipboard operations concerning the safety of the ship and the prevention of pollution. The various tasks involved should be defined and assigned to qualified personnel.

8.1.The company should establish procedures to identify, describe and respond to potential emergency shipboard situations.

8.2.The company should establish programmes for drills and exercises to prepare for emergency actions.

8.3.The SMS should provide for measures ensuring that the company's organisation can respond at any time to hazards, accidents and emergency situations involving its ships.

9.1.The SMS should include procedures ensuring that non-conformities, accidents and hazardous situations are reported to the company, investigated and analysed with the objective of improving safety and pollution prevention.

9.2.The company should establish procedures for the implementation of corrective action.

10.1.The company should establish procedures to ensure that the ship is maintained in conformity with the provisions of the relevant rules and regulations and with any additional requirements which may be established by the company.

10.2.In meeting these requirements the company should ensure that:

10.2.1.inspections are held at appropriate intervals;

10.2.2.any non-conformity is reported with its possible cause, if known;

10.2.3.appropriate corrective action is taken; and

10.2.4.records of these activities are maintained.

10.3.The company should establish procedures in the SMS to identify equipment and technical systems the sudden operational failure of which may result in hazardous situations. The SMS should provide for specific measures aimed at promoting the reliability of such equipment or systems. These measures should include the regular testing of stand-by arrangements and equipment or technical systems that are not in continuous use.

10.4.The inspections mentioned in 10.2 as well as the measures referred to in 10.3 should be integrated in the ship's operational maintenance/routine.

11.1.The company should establish and maintain procedures to control all documents and data, which are relevant to the SMS.

11.2.The company should ensure that:

11.2.1.valid documents are available at all relevant locations;

11.2.2.changes to documents are reviewed and approved by authorised personnel; and

11.2.3.obsolete documents are promptly removed.

11.3.The documents used to describe and implement the SMS may be referred to as the ‘safety management manual’. Documentation should be kept in a form that the company considers most effective. Each ship should carry on board all documentation relevant to that ship.

12.1.The company should carry out internal safety audits to verify whether safety and pollution prevention activities comply with the SMS.

12.2.The company should periodically evaluate the efficiency and when needed review the SMS in accordance with procedures established by the company.

12.3.The audits and possible corrective actions should be carried out in accordance with documented procedures.

12.4.Personnel carrying out audits should be independent of the areas being audited unless this is impracticable due to the size and the nature of the company.

12.5.The results of the audits and reviews should be brought to the attention of all personnel having responsibility in the area involved.

12.6.The management personnel responsible for the area involved should take timely corrective action on deficiencies found.

PART B — CERTIFICATION AND VERIFICATION