Commission Regulation (EC) No 1970/2002

of 4 November 2002

amending Council Regulation (EC) No 3051/95 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries)

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EC) No 3051/95 of 8 December 1995 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries)(1), as amended by Commission Regulation (EC) No 179/98(2), and in particular Article 9 thereof,

Whereas:

(1) Regulation (EC) No 3051/95 provides that companies and Member States shall comply with the provisions of the International Safety Management Code adopted by the International Maritime Organisation (IMO) through Assembly Resolution A.741 (18) of 4 November 1993, in respect of ro-ro ferries operating to or from ports of the Member States of the Community.

(2) With a view to ensuring uniform implementation of the ISM Code, Regulation (EC) No 3051/95 contains provisions for administrations, based upon the Guidelines on implementation of the International Safety Management Code (ISM) by Administrations, adopted by the International Maritime Organisation (IMO) through Assembly Resolution A.788 (19) of 23 November 1995.

(3) These IMO Resolutions have been amended by the International Maritime Organisation (IMO) through Resolution MSC.104 (73), adopted on 5 December 2000, and Resolution A.913 (22), adopted on 29 November 2001.

(4) It is necessary to take account of developments at international level by introducing detailed rules concerning certification and verification.

(5) The measures provided for in this Regulation are in accordance with the opinion of the Committee provided for in Article 12 of Council Directive 93/75/EEC(3), as last amended by Commission Directive 98/74/EC(4),

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 3051/95 is amended as follows:

1. Article 2(e) is replaced by the following: "(e) 'ISM Code' means the International Management Code for the Safe Operation of Ships and for Pollution Prevention, adopted by the International Maritime Organisation (IMO) through Assembly Resolution A.741 (18) of 4 November 1993, as amended by IMO Resolution MSC.104 (73) of 5 December 2000 and annexed to this Regulation.";

2. Article 2(h) is replaced by the following: "(h) 'safety management certificate' means the certificate issued to ro-ro ferries in conformity with paragraph 13.7 of the ISM Code.";

3. Article 4(1) is replaced by the following: "1. All companies shall comply with all the provisions of paragraphs 1.2 to 13.1 and of paragraph 13.6 of the ISM Code, as if the provisions thereof were mandatory, as a requirement for their vessels to provide regular services to or from a port of a Member State of the Community.";

4. Article 5(1) is replaced by the following: "1. Member States shall comply with the provisions of paragraph 13.2, 13.3, 13.4, 13.5, 13.7 to 13.11, 14 and 16 of the ISM Code as if the provisions thereof were mandatory, in relation to companies and ro-ro ferries.";

5. the Annex is replaced by the Annex to this Regulation.

Article 2

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

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

Done at Brussels, 4 November 2002.

For the Commission

Loyola De Palacio

Vice-President

(1) OJ L 320, 30.12.1995, p. 14.

(2) OJ L 19, 24.1.1998, p. 35.

(3) OJ L 247, 5.10.1993, p. 19.

(4) OJ L 276, 13.10.1998, p. 7.

ANNEX

"ANNEX

CONTENTS

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TITLE I

International Management Code for the safe operation of ships and for pollution prevention (International Safety Management (ISM) Code

PART A - IMPLEMENTATION

1. General

1.1. Definitions

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 an 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-fulfillment 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. Objectives

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.

1.3. Application

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

1.4. Functional requirements for a safety management system (SMS)

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. Safety and environmental protection policy

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. Company responsibilities and authority

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.

4. Designated person(s)

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. Master's responsibility and authority

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. Resources and personnel

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 are essential to be provided 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.

7. Development of plans for shipboard operations

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. Emergency preparedness

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. Reports and analysis of non-conformities, accidents and hazardous occurrences

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. Maintenance of the ship and equipment

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. Documentation

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. Company verification, review and evaluation

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

13. Certification and periodical verification

13.1. The ship should be operated by a company which has been issued with a Document of Compliance or with an Interim Document of Compliance in accordance with paragraph 14.1, relevant to that ship.

13.2. The Document of Compliance should be issued by the Administration, by an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government to the Convention to any Company complying with the requirements of this Code for a period specified by the Administration which should not exceed five years. Such a document should be accepted as evidence that the Company is capable of complying with the requirements of this Code.

13.3. The Document of Compliance is only valid for the ship types explicitly indicated in the document. Such indication should be based on the types of ships on which the initial verification was based. Other ship types should only be added after verification of the Company's capability to comply with the requirements of this Code applicable to such ship types. In this context, ship types are those referred to in Regulation IX/1 of the Convention.

13.4. The validity of a Document of Compliance should be subject to annual verification by the Administration or by an organisation recognised by the Administration or, at the request of the Administration by another Contracting Government within three months before or after the anniversary date.

13.5. The Document of Compliance should be withdrawn by the Administration or, at its request, by the Contracting Government which issued the document, when the annual verification required in paragraph 13.4 is not requested or if there is evidence of major non-conformities with this Code.

13.5.1. All associated Safety Management Certificates and/or Interim Safety Management Certificates should also be withdrawn if the Document of Compliance is withdrawn.

13.6. A copy of the Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in Regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified.

13.7. The Safety Management Certificate should be issued to a ship for a period which should not exceed five years by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. The Safety Management Certificate should be issued after verifying that the Company and its shipboard management operate in accordance with the approved safety management system. Such a certificate should be accepted as evidence that the ship is complying with the requirements of this Code.

13.8. The validity of the Safety Management Certificate should be subject to at least one intermediate verification by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. If only one intermediate verification is to be carried out and the period of validity of the Safety Management Certificate is five years, it should take place between the second and third anniversary date of the Safety Management Certificate.

13.9. In addition to the requirements of paragraph 13.5.1, the Safety Management Certificate should be withdrawn by the Administration or, at the request of the Administration, by the Contracting Government which has issued it when the intermediate verification required in paragraph 13.8 is not requested or if there is evidence of major non-conformity with this Code.

13.10. Notwithstanding the requirements of paragraphs 13.2 and 13.7, when the renewal verification is completed within three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of expiry of the existing Document of Compliance or Safety Management Certificate.

13.11. When the renewal verification is completed more than three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of completion of the renewal verification.

14. Interim certification

14.1. An Interim Document of Compliance may be issued to facilitate initial implementation of this Code when:

(1) a Company is newly established; or

(2) new ship types are to be added to an existing Document of Compliance,

following verification that the Company has a safety management system that meets the objectives of paragraph 1.2.3 of this Code, provided the Company demonstrates plans to implement a safety management system meeting the full requirements of this Code within the period of validity of the Interim Document of Compliance. Such an Interim Document of Compliance should be issued for a period not exceeding 12 months by the Administration or by an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. A copy of the Interim Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified.

14.2. An Interim Safety Management Certificate may be issued:

(1) to new ships on delivery;

(2) when a Company takes on responsibility for the operation of a ship which is new to the Company; or

(3) when a ship changes flag.

Such an Interim Safety Management Certificate should be issued for a period not exceeding six months by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government.

14.3. An Administration or, at the request of the Administration, another Contracting Government may, in special cases, extend the validity of an Interim Safety Management Certificate for a further period which should not exceed six months from the date of expiry.

14.4. An Interim Safety Management Certificate may be issued following verification that:

(1) the Document of Compliance, or the Interim Document of Compliance, is relevant to the ship concerned;

(2) the safety management system provided by the Company for the ship concerned includes key elements of this Code and has been assessed during the audit for issuance of the Document of Compliance or demonstrated for issuance of the Interim Document of Compliance;

(3) the Company has planned the audit of the ship within three months;

(4) the master and officers are familiar with the safety management system and the planned arrangements for its implementation;

(5) instructions, which have been identified as being essential, are provided prior to sailing; and

(6) relevant information on the safety management system has been given in a working language or languages understood by the ship's personnel.

15. Verification

15.1. All verifications required by the provisions of this Code should be carried out in accordance with procedures acceptable to the Administration, taking into account the guidelines developed by the Organisation(1).

16. Forms of certificates

16.1. The Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate should be drawn up in a form corresponding to the models given in the appendix to this Code. If the language used is neither English nor French, the text should include a translation into one of these languages.

16.2. In addition to the requirements of paragraph 13.3 the ship types indicated on the Document of Compliance and the Interim Document of Compliance may be endorsed to reflect any limitations in the operations of the ships described in the safety management system.

(1) Refer to the Guidelines on Implementation of the International Safety Management (ISM) Code by Administrations adopted by the Organisation by Resolution A. 913(22).

Appendix

Forms of the Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate

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TITLE II

Provisions for the Administration concerning the implementation of the International Safety Management (ISM) Code

PART A - GENERAL PROVISIONS

1.1. When carrying out verifications and certification tasks required by the provisions of the ISM Code for ro-ro ferries Member States shall comply with the requirements and standards laid down in Part B of this Title.

1.2. In addition Member States shall take due account of the provisions of the Revised Guidelines on the Implementation of the International Safety Management (ISM) Code by Administrations, adopted by the IMO through Resolution A.913 (22) of 29 November 2001, as far as they are not covered under Part B of this Title.

PART B - CERTIFICATION AND STANDARDS

1. Acceptance and recognition of an interim document of compliance and interim safety management certificate

1.1. An interim document of compliance and an interim safety management certificate complying with the provisions of this Regulation and issued by the administration of any other Member State or by a recognised organisation acting on its behalf shall be accepted by each Member State.

1.2. An interim document of compliance and an interim safety management certificate issued by, or on behalf of, the administrations of third countries shall be recognised by a Member State if it is satisfied that they demonstrate compliance with the provisions of this Regulation.

2. Certification process

2.1. The certification process relevant for the issuance of a document of compliance for a company and a safety management certificate to a ro-ro ferry shall be performed taking account of the provisions set out below.

2.2. The certification process shall normally involve the following steps:

(1) initial verification;

(2) annual or intermediate verification;

(3) renewal verification; and,

(4) additional verification.

These verifications are carried out at the request of the company to the administration or to the recognised organisation when acting on behalf of the administration.

2.3. The verifications shall include a safety management audit.

2.4. A lead auditor and, if relevant, an audit team, shall be nominated to perform the audit.

2.5. The nominated lead auditor shall liaise with the company and produce an audit plan.

2.6. An audit report shall be prepared under the direction of the lead auditor, who is responsible for its accuracy and completeness.

2.7. The audit report shall include the audit plan, the identification of audit team members, dates and identification of the company, records of any observations and non-conformities issued and observations on the effectiveness of the safety management system in meeting the specified objectives.

3. Standard of management

3.1. Auditors or the audit team managing verification of compliance with the ISM Code shall have competence in relation to:

(1) ensuring compliance with the rules and regulations including certification of seafarers, for the ro-ro ferries operated by the company;

(2) the approval, survey and certification activities relevant for the maritime certificates;

(3) the terms of reference that must be taken into account under the safety management system as required by the ISM Code; and

(4) practical experience of ship operation.

3.2. In performing verification of compliance with the provisions of the ISM Code it shall be ensured that independence exists between the personnel providing consultancy services and those involved in the certification procedure.

4. Standards of competence

4.1. Basic competence for performing verification

4.1.1. Personnel who are to participate in the verification of compliance with the requirements of the ISM Code shall fulfil the minimum criteria for inspectors as laid down in Annex VII, paragraph 2, to Council Directive 95/21/EC(1).

4.1.2. They shall have undergone training to ensure adequate competence and skills for performing verification of compliance with the requirements of the ISM Code, particularly with regard to:

(1) knowledge and understanding of the ISM Code;

(2) mandatory rules and regulations;

(3) the terms of reference which the ISM Code requires that companies should take into account;

(4) assessment techniques of examining, questioning, evaluating and reporting;

(5) technical or operational aspects of safety management;

(6) basic knowledge of shipping and shipboard operations; and

(7) participation in at least one marine related management system audit.

4.2. Competence for initial verification and renewal verification

4.2.1. In order to assess fully whether the company or the ro-ro ferry complies with the requirements of the ISM Code, in addition to the basic competence stated above, personnel who are to perform initial verifications or renewal verifications for a document of compliance and a safety management certificate, must possess the competence to:

(1) determine whether the SMS elements conform or do not conform to the requirements of the ISM Code;

(2) determine the effectiveness of the company's SMS, or that of the ro-ro ferry, to ensure compliance with rules and regulations as evidenced by the statutory and classification survey records;

(3) assess the effectiveness of the SMS in ensuring compliance with other rules and regulations which are not covered by statutory and classification surveys and enabling verification of compliance with these rules and regulations; and

(4) assess whether the safe practices recommended by the IMO, administrations, classification societies and maritime industry organisations have been taken into account.

4.2.2. This competence can be accomplished by teams which together possess the total competence required.

5. Form of Documents of Compliance and Safety Management Certificates

When ro-ro ferries operate only in a Member State, Member Sates shall either use the forms attached to the ISM Code or the Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate drawn up in the form set out below.

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(1) OJ L 157, 7.7.1995, p. 1."