Opinion on the proposal for a Council Regulation on the Safety Management of Ro-Ro Passenger Vessels (95/C 236/12)

On 13 March 1995 the Council decided to consult the Economic and Social Committee, under Article 84-2 of the Treaty establishing the Community, on the abovementioned proposal.

The Section for Transport and Communications, which was responsible for drawing up the Committee's work on the subject, adopted its Opinion on 10 May 1995. The Rapporteur was Mr Whitworth.

At its 326th Plenary Session (meeting of 31 May 1995), the Economic and Social Committee adopted the following Opinion unanimously.

1. Introduction

1.1. This draft Regulation is the first item in a programme of proposals for Council decisions designed to enhance the safe operation of roll-on/roll-off passenger ferries which was set out in the Resolution of the Council on this subject dated 22 December 1994.

1.2. The Resolution also called on the Member States and the Commission to support a number of continuing initiatives in the International Maritime Organization (IMO) and on the Commission to develop a number of other relevant initiatives contained in its action programme.

1.3. These continuing activities all form part of the development of the Common Policy on Safe Seas to which the Economic and Social Committee gave an overwhelming endorsement in its Opinion on the Commission Communication on the subject (CES 1170/93 dated 24 November 1993). The relevant elements of this Policy were given added urgency by the sinking of the Estonian Ro-Ro ferry Estonia on 28 September 1994.

2. The Commission Proposal

2.1. The Draft Regulation seeks to make compliance with the IMO's International Management Code for the Safe Operation of Ships and for Pollution Prevention (the ISM Code) mandatory for all companies operating seagoing Ro-Ro passenger ferries on a regular service to or from ports in the Community with effect from 1 July 1996.

2.2. This Code was adopted by the IMO in May 1994 as part of the Safety of Life at Sea Convention, with implementation dates ranging from July 1998 to July 2002, depending on the type of ship. Thus the Commission is seeking to bring forward the implementation date for Community Ro-Ro ferries by two years and to apply it on domestic as well as foreign-going services.

3. The ISM Code

3.1. Essentially the Code requires shipping companies to develop and apply high-quality standards for the management and operation of their ships. This involves the development of detailed written policies, as well as operating and emergency procedures and the precise definition of areas of responsibility both ashore and afloat. There is a requirement for verification on a continuing basis once the initial standards have been set and the necessary procedures put in place.

3.2. Governments are obliged to satisfy themselves that the requirements of the Code are met by those shipping companies which conduct their business in their territories. Compliance will be evidenced by a Document of Compliance (DOC) issued by their Administration to a shipping company once it is satisfied that the company's procedures comply and by a Safety Management Certificate (SMC) for each individual ship verifying that those procedures are in force in the ship concerned.

3.3. The Code will be accompanied by detailed IMO Guidelines for Administrations on its implementation.

4. General comments

4.1. The Committee unreservedly supports the proposal to make the ISM Code mandatory for passenger ferries at the earliest practicable date. It emphasizes that this is just one step in the overall programme set out in the Council Resolution of December 1994 which includes both technical and social aspects. It urges the Commission to develop as soon as possible its proposals to give effect to the other elements in the programme and Member States to give their full support to the various initiatives to enhance ferry safety which are being developed in the IMO.

4.2. The fact that the Commission's proposal for this EC Regulation adopts an IMO instrument at its base is entirely consistent with the policy endorsed by the ESC in a whole series of its Opinions on Community legislation in the maritime field. The Committee once again endorses this approach.

4.3. It is recognized a vast amount of work will need to be done if ferry companies and Member States' Administrations are to be in a position to comply with the draft Regulation by 1 July 1996. Unless companies already have detailed written procedures in place and Administrations have qualified staff to verify compliance with the requirements of the Code at both shore management and shipboard level, the fourteen months which now remain will be barely adequate, particularly as the IMO Guidelines require that at company's Safety Management System shall have been in operation for three months before a DOC can be issued.

4.4. Some Member States are already querying the July 1996 date. Nevertheless, the Committee believes that any derogations from this time-scale should be kept to an absolute minimum and limited to small companies operating domestic services in sheltered waters for a period of short duration.

4.5. The Committee believes that Member States' Administrations should scrutinize rigorously Documents of Compliance and Safety Management Certificates issued to non-EU flag ships by their flag Administrations or Classification Societies and only accept these if they are satisfied that the issuing Authority requires standards of compliance similar to their own.

4.6. In this context the Committee attaches particular importance to compliance with Part 6 of the Code concerning Resources and Personnel and especially with its provisions concerning the qualifications of the master and crew. Member States' Administrations must ensure that the crews of all ships subject to the Regulation meet the requirements of Council Directive 94/58 on Minimum Levels of Training and ability to communicate. Special attention should be paid to ships of whatever flag crewed by non-EU seafarers, and their ability to communicate with passengers in an emergency situation.

4.7. A further important point concerns the relationship between the 'Designated Person' specified in Part 4 of the Code and the Masters of the Company's ships whose responsibility and authority is spelt out in Part 5. The former should be a suitably qualified individual and capable of commanding the confidence of the sea-going personnel.

5. Specific comments

5.1. Title

5.1.1. The title of the proposed Regulation is misleading in that it indicates a much more comprehensive approach embracing the full range of activities contained in the Council Resolution. A better title might be 'On the Mandatory Application of the ISM Code to Ro-Ro Passenger Vessels'.

5.2. Article 2

5.2.1. The definition of 'RO-RO ferry' should be amended so as to make it clear that it covers vessels carrying road or rail vehicles.

5.2.2. The term 'regular service' used in Article 3 needs to be defined.

5.3. Article 5

5.3.1. The Committee attaches particular importance to the provision in Article 5.2 that where DOCs or SMCs are issued by a Classification Society, Member States may only rely upon those which meet the criteria laid down in Council Directive 94/57.

5.3.2. Article 5.4 should be amended to reflect the relevant provisions of the IMO Guidelines (which were adopted after the proposed Regulation was drawn up) concerning the periods of validity and verification for the DOCs and SMCs. It will then be necessary to bring the ninth recital into line. The Guidelines should be reproduced as Annex 2 to the Regulation.

5.4. Article 6

5.4.1. Article 6.3 permits Member States to recognize DOCs and SMCs issued by third countries - i.e. the Flag States of non-EU flag ferries operating regular services to and from Community ports. The Committee is anxious that this should not permit the recognition of substandard operators. The Article should be permissive and not mandatory. Further emphasis should be given to the proviso 'if it is satisfied that they guarantee the observance of the provisions of the Regulation' and recognition should be conditional upon it. Further the Article should contain a particular reference to compliance with Part 6 of the Code - see paragraph 4.6 above.

5.5. Article 7

5.5.1. The provision that a Member State may require the suspension of the operation of a company's entire service expands the power under the Port State Control provisions to detain a particular ship. Clearly it would only be exercised if a situation of major danger had arisen since the DOC and SMCs were issued or recognized. The Article should provide that the suspension should be revoked once the danger was removed and that the detailed procedure should only be applicable if the suspension was disputed.

5.5.2. Further, the power given to the Commission in Article 7(c) to countermand a decision of a Member State in this respect could force a Member State to permit a company to operate when it considered aspects of its operation to be dangerous and runs counter to the principle of subsidiarity. It would be better if the view of the Commission resulting from the comitology procedure were relayed to the Member State in the form of a request.

5.6. Article 8

5.6.1. It should be made clear that it is the IMO Guidelines which are referred to.

6. Summary and Conclusions

6.1. The Committee unreservedly supports the proposal to make the ISM Code mandatory for passenger ferries with effect from 1 July 1996. It believes that any derogation from this requirement should be kept to an absolute minimum and limited to small companies operating domestic services in sheltered waters for a period of short duration.

6.2. Particular importance is attached to compliance with Part 6 of the Code concerning Resources and Personnel.

6.3. Before accepting Documents of Compliance and Safety Management Certificates issued by non-EU Administrations or Classification Societies, Member States' Administrations should be entirely satisfied that the issuing authority requires standards of compliance similar to their own.

Done at Brussels, 31 May 1995.

The President

of the Economic and Social Committee

Carlos FERRER