Common Position (EC) No 32/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95
Date: 2005-07-18
Institutions: Council of the European Union
Subjects: International Maritime Organisation, drafting of EU law, marine pollution, maritime transport, prevention of pollution, transport safety

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COMMON POSITION (EC) No 32/2005

adopted by the Council on 18 July 2005

with a view to adopting Regulation (EC) No …/2005 of the European Parliament and of the
Council of … on the implementation of the International Safety Management Code within the
Community and repealing Council Regulation (EC) No 3051/95

(2005/C 264 E/03)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(4)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

(5)

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

The International Management Code for the Safe Opera-
tion of Ships and for Pollution Prevention, hereinafter
referred to as ‘the ISM Code’, was adopted by the Inter-
national Maritime Organisation (IMO)
in 1993. This
Code gradually became mandatory for most ships sailing
on international voyages with the adoption in May 1994
of Chapter IX ‘Management for the Safe Operation of
Ships’ of the International Convention for the Safety of
Life at Sea (Solas), 1974.

(6)

(7)

(8)

The ISM Code was amended by the IMO by Resolution
MSC.104(73), adopted on 5 December 2000.

(9)

(1)

(2)

(3)

the ISM Code by
Guidelines on implementation of
Administrations were
adopted by IMO Resolution
A.788(19) on 23 November 1995. These Guidelines
were amended by Resolution A.913(22), adopted on 29
November 2001.

(1) OJ C 302, 7.12.2004, p. 20.
(2) Opinion of the European Parliament of 10 March 2004 ( C 102 E,
28.4.2004, p. 565), Council Common Position of 18 July 2005 and
Position of the European Parliament of … (not yet published in the
Official Journal).

Council Regulation (EC) No 3051/95 of 8 December
1995 on the safety management of
roll-on/roll-off
passenger ferries (ro-ro ferries) (3), made the ISM Code
mandatory at Community level with effect from 1 July
1996 for all ro-ro passenger ferries operating on a
regular service to and from ports of the Member States,
on both domestic and international voyages and regard-
less of their flag. This was a first step towards ensuring
uniform and coherent implementation of the ISM Code
in all Member States.

On 1 July 1998 the ISM Code became mandatory under
the provisions of Chapter IX of Solas for companies
high-speed
ships,
operating
passenger
tankers, gas
tankers,
carriers, bulk carriers and cargo high-speed craft of 500
gross tonnage and upwards, on international voyages.

passenger
craft, oil

including
chemical

On 1 July 2002 the ISM Code became mandatory for
companies operating other cargo ships and mobile
tonnage and
offshore drilling units of 500 gross
upwards, on international voyages.

The safety of human life at sea and the protection of the
environment may be effectively enhanced by applying
the ISM Code strictly and on a mandatory basis.

It is desirable to apply directly the ISM Code to ships
flying the flag of a Member State as well as to ships,
regardless of their flag, engaged exclusively on domestic
voyages or on a regular shipping service operating to or
from ports of the Member States.

The adoption of a new regulation with direct applic-
ability should ensure the enforcement of the ISM Code
on the understanding that it is left to the Member States
to decide whether to implement the Code for ships,
regardless of their flag, operating exclusively in port
areas.

(10)

Consequently, Regulation (EC) No 3051/95 should be
repealed.

(3) OJ L 320, 30.12.1995, p. 14. Regulation as last amended by Regu-
lation (EC) No 2099/2002 of the European Parliament and of the
Council (OJ L 324, 29.11.2002, p. 1).

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(11)

(12)

(13)

If a Member State considers it difficult in practice for
companies to comply with specific provisions of part A
of the ISM Code for certain ships or categories of ships
in that
exclusively engaged on domestic voyages
Member State,
it may derogate wholly or partly from
those provisions by imposing measures ensuring equiva-
lent achievement of the objectives of the Code. It may,
for such ships and companies, establish alternative certi-
fication and verification procedures.

It is necessary to take into account Council Directive
95/21/EC of 19 June 1995 concerning the enforcement,
in respect of shipping using Community ports and
the
sailing in the waters under
Member States, of international standards for ship safety,
pollution prevention and shipboard living and working
conditions (port State control) (1).

the jurisdiction of

It is also necessary to take into account Council Directive
94/57/EC of 22 November 1994 on common rules and
standards for ship inspection and survey organisations
and for the relevant activities of maritime administra-
tions (2), in order to define the recognised organisations
for the purpose of this Regulation, and Council Directive
98/18/EC of 17 March 1998 on safety rules and stan-
dards for passenger ships (3), for the purpose of estab-
lishing the scope of application of this Regulation as
regards passenger ships engaged on domestic voyages.

HAVE ADOPTED THIS REGULATION:

Article 1

Objective

The objective of
this Regulation is to enhance the safety
management and safe operation of ships as well as the preven-
tion 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
the shipboard and shore-based safety

by companies of
management systems; and

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

Article 2

Definitions

(14)

The measures necessary for amending Annex II should
adopted in accordance with Council Decision
be
1999/468/EC of 28 June 1999 laying down the proce-
dures for the exercise of implementing powers conferred
on the Commission (4).

(15)

Since the objectives of
this Regulation, namely to
enhance the safety management and safe operation of
ships as well as the prevention of pollution from ships,
cannot be sufficiently achieved by the Member States
and can therefore be better achieved at Community
level, the Community may adopt measures, in accord-
ance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle
of proportionality, as set out in that Article, this Regu-
lation does not go beyond what is necessary in order to
achieve those objectives,

(1) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive
2002/84/EC of the European Parliament and of the Council (OJ L
324, 29.11.2002, p. 53).

(2) OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive

2002/84/EC.

(3) OJ L 144, 15.5.1998, p. 1. Directive as last amended by Commis-

sion Directive 2003/75/EC (OJ L 190, 30.7.2003, p. 6).

(4) OJ L 184, 17.7.1999, p. 23.

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 Preven-
tion 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 orga-
nisation or person, such as the manager or the bareboat
charterer, who has assumed responsibility for the opera-
tion 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 submer-
sible craft;

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(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;

Article 3

Scope

This Regulation shall apply to the following types of

1.
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, regard-
less of their flag;

(d) mobile offshore drilling units operating under the authority

of a Member State.

(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;

This Regulation shall not apply to the following types of

2.
ships or to the companies operating them:

(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 consti-

tute a recognisable systematic series;

(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;

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

(d) cargo ships and mobile offshore drilling units of less than

500 gross tonnage;

(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 deter-
mined 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.

(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 oper-
ating them shall comply with the requirements of part A of the
ISM Code.

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Article 6

Certificate shall remain valid for up to five years from the date
of its issue.

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

1.
A Member State may, if it considers it difficult in practice
for companies to comply with paragraphs 6, 7, 9, 11 and 12
of part A of the ISM Code for certain ships or categories of
ships exclusively engaged on domestic voyages in that Member
State, derogate wholly or partly from those provisions by
imposing measures ensuring equivalent achievement of
the
objectives of the Code.

2.
A Member State may, for ships and companies for which
a derogation has been adopted by virtue of paragraph 1, if it
considers it difficult in practice to apply the requirements laid
down in Article 6, establish alternative certification and verifi-
cation procedures.

In the circumstances set out in paragraph 1 and, if applic-

3.
able, 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.

4.
Following a derogation under paragraph 1 and, if applic-
able, paragraph 2, the Member State concerned shall issue a
certificate in accordance with the second subparagraph of
Annex II.5, indicating the applicable operational limitations.

2.
In cases of renewal of the Document of Compliance and
the Safety Management Certificate, the relevant provisions of
part B of the ISM Code shall apply.

3. Member States shall accept Documents of Compliance,
Interim Documents of Compliance, Safety Management Certifi-
cates and Interim Safety Management Certificates issued by the
administration of any other Member State or on behalf of this
administration by a recognised organisation.

4. Member States shall accept Documents of Compliance,
Interim Documents of Compliance, Safety Management Certifi-
cates and Interim Safety Management Certificates issued by, or
on behalf of, the administrations of third countries.

However,
for ships engaged on a regular shipping service,
compliance with the ISM Code by the Documents of Compli-
ance, 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 administra-
tion 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
the
measures necessary to ensure that they are implemented. The
penalties provided for must be effective, proportionate and
dissuasive.

this Regulation and shall

take all

Article 10

Reporting

Article 8

1. Member States shall report to the Commission every two
years on the implementation of this Regulation.

Validity, acceptance and recognition of certificates

1.
The Document of Compliance shall remain valid for up
to five years from the date of its issue. The Safety Management

2.
The Commission shall, in accordance with the procedure
referred to in Article 12(2), establish a harmonised specimen
form for such reports.

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3.
The Commission shall, with the assistance of the Euro-
pean Maritime Safety Agency and within six months of
receiving the reports from Member States, prepare a consoli-
dated report concerning the implementation of this Regulation,
with any proposed measures, if appropriate. This report shall
be addressed to the European Parliament and the Council.

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

3.

The Committee shall adopt its Rules of Procedure.

Article 11

Amendments

1.
Amendments to the ISM Code may be excluded from the
scope of this Regulation pursuant to Article 5 of Regulation
(EC) No 2099/2002 of the European Parliament and of the
Council of 5 November 2002 establishing a Committee on Safe
Seas and the Prevention of Pollution from Ships (COSS) and
amending the Regulations on maritime safety and the preven-
tion of pollution from ships (1).

Any amendment to Annex II shall be made in accordance

2.
with the procedure referred to in Article 12(2).

Article 12

Committee

Article 13

Repeal

Regulation (EC) No 3051/95 shall be repealed with effect

1.
from … (*).

Interim Documents of Compliance,

2.
Interim Safety
Management Certificates, Documents of Compliance and Safety
Management Certificates issued before … (**) shall remain valid
until their expiry or until their next endorsement.

Article 14

Entry into force

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships (COSS)
set up under Article 3 of Regulation (EC) No 2099/2002.

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

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

As concerns cargo and passenger ships, which are not already
required to comply with the ISM Code, this Regulation shall
apply as from … (*).

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

Done at Brussels,

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ L 324, 29.11.2002, p. 1. Regulation as amended by Commission

Regulation (EC) No 415/2004 (OJ L 68, 6.3.2004, p. 10).

(*) The date of entry into force of this Regulation.
(**) Two years after the date of entry into force of this Regulation.

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INTERNATIONAL MANAGEMENT CODE FOR THE SAFE OPERATION OF SHIPS AND FOR POLLUTION
PREVENTION (INTERNATIONAL SAFETY MANAGEMENT (ISM) CODE)

ANNEX I

PART A — IMPLEMENTATION

1. GENERAL

1.1. Definitions

1.2. Objectives

1.3. Application

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

2. SAFETY AND ENVIRONMENTAL PROTECTION POLICY

3. COMPANY RESPONSIBILITIES AND AUTHORITY

4. DESIGNATED PERSON(S)

5. MASTER'S RESPONSIBILITY AND AUTHORITY

6. RESOURCES AND PERSONNEL

7. DEVELOPMENT OF PLANS FOR SHIPBOARD OPERATIONS

8. EMERGENCY PREPAREDNESS

9. REPORTS AND ANALYSIS OF NON-CONFORMITIES, ACCIDENTS AND HAZARDOUS OCCURRENCES

10. MAINTENANCE OF THE SHIP AND EQUIPMENT

11. DOCUMENTATION

12. COMPANY VERIFICATION, REVIEW AND EVALUATION

PART B — CERTIFICATION AND VERIFICATION

13. CERTIFICATION AND PERIODICAL VERIFICATION

14. INTERIM CERTIFICATION

15. VERIFICATION

16. FORMS OF CERTIFICATES

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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 ship-
owner 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 require-
ments 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.

fact
‘Objective evidence’ means quantitative or qualitative information, records or statements of
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. 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.

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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, administra-
tions, 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.

2.2.

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

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.

3.2.

3.3.

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.

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.

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.

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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 moni-
toring 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 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.

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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 preven-
tion.

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 provi-
sions 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.

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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.

13.3.

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.

The Document of Compliance is only valid for the ship types explicitly indicated in the document. Such indica-
tion 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 Conven-
tion.

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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 Administration by another
Contracting Government within three months before or after the anniversary date.

the request of

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 Administra-
tion, 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 Administra-
tion 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 Administra-
tion 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 certi-
fied.

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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 demon-
strated 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.

16.2.

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.

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).

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Appendix

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PROVISIONS FOR THE ADMINISTRATION CONCERNING THE IMPLEMENTATION OF THE INTERNA-
TIONAL SAFETY MANAGEMENT (ISM) CODE

ANNEX II

PART A GENERAL PROVISIONS

PART B CERTIFICATION AND STANDARDS

2. CERTIFICATION PROCESS

3. STANDARD OF MANAGEMENT

4. STANDARDS OF COMPETENCE

5. FORM OF DOCUMENT OF COMPLIANCE AND SAFETY MANAGEMENT CERTIFICATE

PART A — GENERAL PROVISIONS

1.1. When carrying out verifications and certification tasks required by the provisions of the ISM Code for ships
falling within the scope of this Regulation, 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 Implementa-
tion of the International Safety Management (ISM) Code by Administrations, adopted by the IMO through Resolu-
tion 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

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 each ship 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 orga-
nisation 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, identification of audit team members, dates and identification of the
company, records of any observations and non-conformities and observations on the effectiveness of the safety
management system in meeting the specified objectives.

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3.

STANDARD OF MANAGEMENT

3.1. Auditors or the audit team managing verification of compliance with the ISM Code shall have competence in rela-

tion to:

1. ensuring compliance with the rules and regulations including certification of seafarers, for each type of ship

operated by the company;

2. 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 indepen-
dence exists between the personnel providing consultancy services and those involved in the certification proce-
dure.

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 section 2 of Annex VII to Directive
95/21/EC.

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:

(a) knowledge and understanding of the ISM Code;

(b) mandatory rules and regulations;

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

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

(e) technical or operational aspects of safety management;

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

(g) 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 each type of ship complies with the requirements of the
ISM Code, in addition to the basic competence stated above, personnel who are to perform initial verifica-
tions or renewal verifications for a document of compliance and a safety management certificate, must
possess the competence to:

(a) determine whether or not the elements of the Safety Management System (SMS) conform with the

ISM Code;

(b) determine the effectiveness of the company's SMS, or that of each type of ship, to ensure compliance

with rules and regulations as evidenced by the statutory and classification survey records;

(c) 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

(d) 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.

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5.

FORM OF DOCUMENTS OF COMPLIANCE AND SAFETY MANAGEMENT CERTIFICATES

When ships operate only in a Member State, Member States 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.

In the event of a derogation under Article 7(1) and, if applicable, Article 7(2), the certificate issued shall be
different from the one referred to above and clearly indicate that a derogation in accordance with Article 7(1)
and, if applicable, Article 7(2) of this Regulation, has been granted and shall include the applicable operational
limitations.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the co-decision procedure (Article 251/TEC), the Council reached, on 9 December
2004, a political agreement on the draft Regulation of the European Parliament and of the Council on
the implementation of the International Safety Management Code (ISM Code) within the Community (1).
Following legal/linguistic revision, the Council adopted its common position on 18 July 2005.

The European Parliament agreed in its opinion in first reading on 10 March 2004 to approve the
Commission's proposal without amendments (2). In taking its position, the Council took account of the
opinion of the Economic and Social Committee (3) (4).

The purpose of this Regulation is to replace and extend Council Regulation (EC) No 3051/95 with a
view to enhancing the safety management, safe operation and pollution prevention. The provisions of
the ISM Code shall apply to all ships flying the flag of a Member State, engaged on international and
domestic voyages, and to all ships falling under the scope of the Solas Convention exclusively engaged
on domestic voyages or operating to or from ports of Member States on a regular shipping service.

II. ANALYSIS OF THE COMMON POSITION

The International Maritime Organisation (IMO) adopted in 1993 the International Management Code
for the Safe Operation of Ships and Pollution Prevention, the so-called ‘ISM Code’, as part of the Interna-
tional Convention on the Safety of Life at Sea (Solas), in order to promote the development of a wide-
spread safety culture and environmental conscience among the crew and companies operating ships. It
provides guidelines for the management and operation of ships by their respective companies.

The Community anticipated, as a reaction to the tragic accident of the Estonia, the implementation of
this ISM Code by the adoption of Regulation (EC) No 3051/95 applying to ro-ro passenger ferries
engaged on international and domestic voyages within the Community.

The Council supports the principle laid down in the Commission proposal submitted in December
2003 to replace Regulation (EC) No 3051/95 by a new text obliging all companies and ships covered
by Chapter IX of the Solas Convention to apply the ISM Code, taking also into account that the Code
became mandatory at international level in 2002. It shares the view that the new Regulation will facili-
tate the correct, strict and harmonised implementation of the Code in all Member States.

With a view to reflecting in an appropriate way the international provisions, the Council considered it
necessary to go beyond the Commission proposal as indicated below.

The Council agrees that, as a further logical step, the scope of the Regulation should also cover ships,
flying the flag of a Member State, on domestic voyages and ships, regardless of their flag, exclusively
engaged on domestic voyages or operating to or from ports of Member States on a regular shipping
service. For reasons of proportionality, passenger ships, other than ro-ro passenger ferries, operating
less than 5 miles from the coastline as well — in line with the ISM Code — as cargo ships and mobile
offshore drilling units of less than 500 gross tonnage are excluded from the scope.

In order to provide for clear and precise legislation, the definitions have been complemented and,
where appropriate, aligned in accordance with existing international instruments, taking into account
high-speed crafts, passenger submersible crafts, ro-ro passenger ferries and mobile offshore drilling units
as well as particularities in relation to the measurement in gross tonnage.

(1) The Commission presented its proposal on 11 December 2003.
(2) C 102 E, 28.4.2004, p. 565.
(3) OJ C 302, 07.12.2004, p. 20.
(4) The Committee of Regions did not deliver an opinion.

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The Council believes that Community legislation implementing international legal instruments should
be aligned as much as possible to these instruments. Thus the provisions concerning the validity of the
documents to be issued to ships and the companies operating them (Document of Compliance, Interim
Document of Compliance, Safety Management Certificate and Interim Safety Management Certificate)
correspond to those of the ISM Code, providing for a validity of up to five years from the date of issue.

Following the principle of respecting the ISM Code, these documents shall be accepted by Member
States if they are issued by the administration of any other Member State or on behalf of this adminis-
tration by a recognised organisation under Directive 94/57/EC, or if they are issued by, or on behalf of,
the administrations of third countries. In the latter case, Member States shall, for ships engaged on a
regular shipping service, verify, by any appropriate means, the compliance of these documents with the
ISM Code.

The Council is of the opinion that through the extension of the scope of the Regulation to domestic
voyages the necessity arises to take into consideration that situations may differ in Member States. The
Regulation therefore provides for a possible derogation scheme in case a Member State considers it
practicably difficult for companies to comply with specific paragraphs of the ISM Code for certain ships
or categories of ships exclusively engaged on domestic voyages in that Member State. Under this dero-
gation procedure the Member State concerned shall impose measures ensuring an equivalent achieve-
ment of the objectives of the Code, notify the Commission of the derogation and the intended measures
and make the adopted measures public. Consequently, in case of a derogation, the certificate issued to
the ship and the operating company shall be different from the forms of Annex I or II to the Regu-
lation, indicate clearly that a derogation in accordance with the Regulation has been granted and shall
include the applicable operational limitations.

Finally, the common position incorporates a number of mainly technical modifications, which are
necessary in order to bring the new text in line with existing Community legislation.