International Safety Management (ISM)

International Safety Management (ISM) Code 2002

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Preamble

1 The purpose of this Code is to provide an international standard for the safe management and operation of ships and for pollution prevention.

2 The Assembly adopted resolution A.443(XI), by which it invited all Governments to take the necessary steps to safeguard the shipmaster in the proper discharge of his responsibilities with regard to maritime safety and the protection of the marine environment.

3 The Assembly also adopted resolution A.680(17), by which it further recognized the need for appropriate organization of management to enable it to respond to the need of those on board ships to achieve and maintain high standards of safety and environmental protection.

4 Recognizing that no two shipping companies or shipowners are the same, and that ships operate under a wide range of different conditions, the Code is based on general principles and objectives.

5 The Code is expressed in broad terms so that it can have a widespread application. Clearly, different levels of management, whether shore-based or at sea, will require varying levels of knowledge and awareness of the items outlined.

6 The cornerstone of good safety management is commitment from the top. In matters of safety and pollution prevention it is the commitment, competence, attitudes and motivation of individuals at all levels that determines the end result.

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 Organization.
1.1.2 "Company" means the owner of the ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all duties and responsibility imposed by the Code.
1.1.3 "Administration" means the Government of the State whose flag the ship is entitled to fly.
1.1.4 "Safety management system" means a structured and documented system enabling Company personnel to implement effectively the Company safety and environmental protection policy.
1.1.5 "Document of Compliance" means a document issued to a Company which complies with the requirements of this Code.
1.1.6 "Safety Management Certificate" means a document issued to a ship which signifies that the Company and its shipboard management operate in accordance with the approved safety management system.
1.1.7 "Objective evidence" means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified.
1.1.8 "Observation" means a statement of fact made during a safety management audit and substantiated by objective evidence.
1.1.9 "Non-conformity" means an observed situation where objective evidence indicates the non-fulfilment of a specified requirement.
1.1.10 "Major non-conformity" means an identifiable deviation that poses a serious threat to the safety of personnel or the ship or a serious risk to the environment that requires immediate corrective action and includes the lack of effective and systematic implementation of a requirement of this Code.
1.1.11 "Anniversary date" means the day and month of each year that corresponds to the date of expiry of the relevant document or certificate.
1.1.12 "Convention" means the International Convention for the Safety of Life at Sea, 1974, as amended.

1.2 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 provide for safe practices in ship operation and a safe working environment;
.2 establish safeguards against all identified risks; and
.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 compliance with mandatory rules and regulations; and
.2 that applicable codes, guidelines and standards recommended by the Organization, Administrations, classification societies and maritime industry organizations 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
Every Company should develop, implement and maintain a safety management system which includes the following functional requirements:

.1 a safety and environmental-protection policy;
.2 instructions and procedures to ensure safe operation of ships and protection of the environment in compliance with relevant international and flag State legislation;
.3 defined levels of authority and lines of communication between, and amongst, shore and shipboard personnel;
.4 procedures for reporting accidents and non-conformities with the provisions of this Code;
.5 procedures to prepare for and respond to emergency situations; and
.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 organization, both ship-based and 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 ensuring 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:

.1 implementing the safety and environmental-protection policy of the Company;
.2 motivating the crew in the observation of that policy;
.3 issuing appropriate orders and instructions in a clear and simple manner;
.4 verifying that specified requirements are observed; and
.5 reviewing the safety management system and reporting its deficiencies to the shore-based management.

5.2 The Company should ensure that the safety management system operating on board the ship contains a clear statement emphasizing the master's authority. The Company should establish in the safety management system 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:

.1 properly qualified for command;
.2 fully conversant with the Company's safety management system; and
.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 familiarization with their duties. Instructions which are essential to 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 safety management system 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 safety management system 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 safety management system 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 safety management system.

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 safety management system should provide for measures ensuring that the Company's organization 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 safety management system 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:

.1 inspections are held at appropriate intervals;
.2 any non-conformity is reported, with its possible cause, if known;
.3 appropriate corrective action is taken; and
.4 records of these activities are maintained.

10.3 The Company should establish procedures in its safety management system to identify equipment and technical systems the sudden operational failure of which may result in hazardous situations. The safety management system 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 into 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 safety management system.
11.2 The Company should ensure that:

.1 valid documents are available at all relevant locations;
.2 changes to documents are reviewed and approved by authorized personnel; and
.3 obsolete documents are promptly removed.

11.3 The documents used to describe and implement the safety management system 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 safety management system.
12.2 The Company should periodically evaluate the efficiency of and, when needed, review the safety management system 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 organization recognized 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 organization recognized 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 organization recognized 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 organization recognized 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 organization recognized 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 dates 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 organization recognized 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 organization recognized 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 6 months by the Administration or an organization recognized 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 6 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 Organization.

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. ____________

                                                           PIC OF A SHIPS MAIN ENGINE

TONNAGE

tonnage

Tonnage is a measure of the size or cargo capacity of a ship. The term derives from the taxation paid on tuns of wine, and was later used in reference to the weight of a ship's cargo; however, in modern maritime usage, "tonnage" specifically refers to a calculation of the volume or cargo volume of a ship. The term is still sometimes incorrectly used to refer to the weight of a loaded or empty vessel.
Measurement of tonnage can be less than straightforward, not least because it is used to assess fees on commercial shipping.

Tonnage measurements

Gross Register Tonnage represents the total internal volume of a vessel, with some exemptions for non-productive spaces such as crew quarters; 1 gross register ton is equal to a volume of 100 cubic feet (2.83 m³). This calculation is complex; a hold can, for instance, be assessed for grain (accounting for all the air space in the hold) or for bales (exempting the spaces between structural frames). GRT (gross registered tons) is now an obsolete term. Gross register tonnage was replaced by gross tonnage in 1994, under the Tonnage Measurement convention of 1969.^[1][2]
Net Register Tonnage is the volume of cargo the vessel can carry; ie. the Gross Register Tonnage less the volume of spaces that will not hold cargo (e.g. engine compartment, helm station, crew spaces, etc., again with differences depending on which port or country is doing the calculations). It represents the volume of the ship available for transporting freight or passengers. It was replaced by net tonnage in 1994, under the Tonnage Measurement convention of 1969.
Gross Tonnage refers to the volume of all ship's enclosed spaces (from keel to funnel) measured to the outside of the hull framing. It is always larger than gross register tonnage, though by how much depends on the vessel design. . It was a measurement of the enclosed spaces within a ship expressed in "tons" – a unit which was actually equivalent to 100 cubic feet.
Tonnage measurements are now governed by an IMO Convention (International Convention on Tonnage Measurement of Ships, 1969 (London-Rules)), which applies to all ships built after July 1982. In accordance with the Convention, the correct term to use now is GT, which is a function of the moulded volume of all enclosed spaces of the ship.
It is calculated by using the formula GT = K * V, where V = total volume in m3 and K = a figure from 0.22 up to 0.32, depending on the ship’s size (calculated by K = 0.2 + 0.02log10V). GT is consequently a measure of the overall size of the ship.
The net tonnage (NT) indicates a vessel’s earning space and is a function of the moulded volume of all cargo spaces of the ship.
A commonly defined measurement system is important as a ship’s registration fee, harbour dues, safety and manning rules etc are based on its gross tonnage GT or net tonnage NT.
Net tonnage is based on a calculation of the volume of all cargo spaces of the ship.
The Panama Canal/Universal Measurement System (PC/UMS) is based on net tonnage, modified for Panama Canal purposes. PC/UMS is based on a mathematical formula to calculate a vessel's total volume; a PC/UMS net ton is equivalent to 100 cubic feet of capacity.^[3]
Thames measurement tonnage is another volumetric system, generally used for small vessels such as yachts; it uses a formula based on the vessel's length and beam.
Many people including those professional people working in maritime industries for many years or even in their lifetime,often confuse "Tonnage" and "Ton" in many countries. Please be noted that "Tonnage" refers to the unit of a ship's volume in measurement for registration and "Ton" refers to the unit of weight. They are totally different in concept.

Weight measurements

While not "tonnage" in the proper sense, the following methods of ship measurement are often incorrectly referred to as such:
Displacement is the actual total weight of the vessel. It is often expressed in long tons or in metric tons, and is calculated simply by multiplying the volume of the hull below the waterline (ie. the volume of water it is displacing) by the density of the water. (Note that the density will depend on whether the vessel is in fresh or salt water, or is in the tropics, where water is warmer and hence less dense.) For example, in sea water, first determine the volume of the submerged portion of the hull as follows: Multiply its length by its breadth and the draft, all in feet. Then multiply the product thereby obtained by the block coefficient of the hull to get the hull volume in cubic feet. Then multiply this figure by 64 (the weight of one cubic foot of seawater) to get the weight of the ship in pounds; or divide by 35 to calculate the weight in long tons. Using the SI or metric system : displacement (in tonnes) is volume (in m³) multiplied by the specific gravity of sea water (1.025 nominally).
The word "displacement" arises from the basic physical law, discovered by Archimedes, that the weight of a floating object equates exactly to that of the water which would otherwise occupy the "hole in the water" displaced by the ship.
Lightship measures the actual weight of the ship with no fuel, passengers, cargo, water, etc. on board.
Deadweight is the displacement at any loaded condition minus the lightship weight. It includes the crew, passengers, cargo, fuel, water, and stores. Like Displacement, it is often expressed in long tons or in metric tons.^[4]

Origins

Historically, tonnage was the tax on tuns (casks) of wine that held approximately 252 gallons of wine and weighed approximately 2,240 pounds. This suggests that the unit of weight measurement, long tons (also 2,240 lb) and tonnage both share the same etymology. The confusion between weight based terms (deadweight and displacement) stems from this common source and the eventual decision to assess dues based on a ship's deadweight rather than counting the tuns of wine. In 1720 the Builders Old Measurement Rule was adopted to estimate deadweight from the length of keel and maximum breadth or beam of a ship. This overly simplistic system was replaced by the Moorsom System in 1854 and calculated internal volume, not weight. This system evolved into the current set of internationally accepted rules and regulations.
When steamships came into being, they could carry less cargo, size for size, than sailing ships. As well as spaces taken up by boilers and steam engines, steamships carried extra fresh water for the boilers as well as coal for the engines. Thus, to move the same volume of cargo as a sailing ship, a steamship would be considerably larger than a sailing ship.
"Harbour Dues" are based on tonnage. In order to prevent steamships operating at a disadvantage, various tonnage calculations were established to minimise the disadvantage that the extra space requirements of steamships presented. Rather than charging by length or displacement etc, charges were calculated on the viable cargo space. As commercial cargo sailing ships are now largely extinct, Gross Tonnage is becoming the universal method of calculating ships dues, and is also a more straight-forward and transparent method of assessment.

References

1. ^ CWP Handbook of Fishery Statistical Standards. Retrieved May 10, 2006.
2. ^ International Convention on Tonnage Measurement of Ships, 1969, International Maritime Organisation. Retrieved May 10, 2006.
3. ^ Panama Canal Tolls, from the Panama Canal Authority. Retrieved May 10, 2006.
4. ^ Ton types, by Gregory M. Walsh, Ocean Navigator. Retrieved May 10, 2006.

• The Oxford Companion To Ships & The Sea, by I. C. B. Dear and Peter Kemp. Oxford University Press, 1979. ISBN 0-19-860616-8
• Ship Design and Construction, Volume II; Thomas Lamb, Editor. Society of Naval Architects and Marine Engineers, 2004. ISBN 99909-0-620-3

MARITIME LAW

Seamen's Personal Injuries

Anyone who has ever worked aboard a vessel knows that the marine environment is hazardous. Marine employment requires training, skill, and care. However, even the most careful and experienced seaman cannot always guard against equipment failure or the negligence of others.

If you are a member of a crew of a vessel, whether that vessel is a cargo ship, a ferry, a casino boat, a long-liner, a tug, a jack-up rig, a drilling ship, or any other means of carrying persons or freight across water, you could be a seaman who is entitled to the benefits that Congress and the General Maritime Law provide.

Seamen are not covered by any type of Workers Compensation statutes like those that exist for land-based workers. To compensate seamen and their families for a seaman's personal injuries or death, the Courts and Congress have developed a patchwork of remedies available to seamen who become sick or injured during their employment aboard vessels. Maintenance and Cure, the Jones Act, and the Unseaworthiness doctrine are laws and legal concepts that require specialized knowledge of maritime law.

Seamen can also obtain the protection of maritime law for illnesses developed after their employment for exposure to asbestos or hazardous chemicals.

Seamen's Wages:

Seamen aboard ships and other vessels earn wages that are protected by a maritime lien of the highest order. Typically, an owner is obligated to pay the seaman's wages upon completion of the voyage or within certain time frames thereafter. Often, due to financial situations, the owner will delay payment to the seaman despite his obligation to timely pay wages due. In some cases, this results in a penalty that is paid to the seaman by the vessel owner that compensates the seaman for the delay and augments the underlying wages that are due.

When seamen aboard foreign-flag vessels are in American ports, the penalty wage statute applies to them despite the flag their vessel may be flying. Often this particular type of seafarer is unfamiliar with the law and is somewhat hesitant to contact an attorney to assist him in protecting his valuable rights to the wages to which he is entitled. One organization that helps seafarers make contact with the appropriate attorneys to assist them is the ITF. Maritime Legal Resources works closely with the ITF and their network of attorneys to protect seafarersí right to prompt payment of wages in ports throughout the United States.

A seaman who is overdue for payment of wages earned aboard a vessel, regardless of flag, should contact Maritime Legal Resources to have his case evaluated. There is no time like the present because an owner who does not pay his sailors on time is often running into financial difficulties. With the passage of time, the financial difficulties increase. It then becomes more difficult to realize and satisfy the lien for wages as the value of the vessel is further eroded due to Collision and Wake Damage

Vessel Arrest and Maritime Liens

Members of the maritime community often find that a vessel owner or charterer refuses to pay for services or supplies provided to a vessel or has defaulted on a promissory note. The failure on the part of the vessel owner or charterer to pay for dockage, supplies, repairs, labor, materials, gas, oil, food, etc., results in the marina operator, marine supplier, vessel repairer, seaman, salvor, preferred ship mortgage holder, or other supplier having a maritime lien against a vessel. A maritime lien is an established maritime law principle, which is enforced by procedures unique to maritime law. The existence of the maritime lien permits the lien holder to have the vessel arrested or seized by the U.S. Marshal to enforce its lien. Due to the unique and complicated nature of enforcing maritime liens, maritime lien holders need the experience of Maritime Legal Resources when they have an unpaid maritime debt and need to assert their rights to collect upon it.

Charter Parties

The term "charter party" stands for the contract between the owner of a vessel and the charterer, that is the one that takes over the vessel for a certain amount of time or voyage. Three are the main types of charter:

1) The Voyage Charter. The charterer hires the vessel for a single voyage. The owner and his crew manage the vessel;
2) The Time Charter. Here the vessel is hired for a specific amount of time. The owner still manages the vessel but the charterer selects the ports of destination and controls the operation of the ship. It is a more permanent arrangement than the voyage charter and more representations are made about the ship to the charterer;
3) Demise or Bareboat Charters. This arrangement is completely different from the previous two. The charterer takes full control of the vessel along with the legal and financial responsibility for it. The demise shifts the control and possession of the vessel

General Average

A legal principle which traces its origins in ancient maritime law, general average is still part of the admiralty law of most countries. General average requires three elements which are clearly stated by Mr. Justice Grier in Barnard v. Adams:

"Ist. A common danger: a danger in which vessel, cargo and crew all participate; a danger imminent and apparently 'inevitable,' except by voluntarily incurring the loss of a portion of the whole to save the remainder.

"2nd. There must be a voluntary jettison, jactus, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole.

"3rd. This attempt to avoid the imminent common peril must be successful".

The first codification of the general average principle were the York-Antwerp Rules of 1890 which were supplemented and amended in 1924, in 1949 and in 1974. While the Rules never had the force of law, American commercial concerns seem to have accepted the 1949 version in its entirety and bills of lading incorporate them verbatim.
Rule I of the 1974 version provides that no jettison of cargo can be made good as general average, unless such cargo is carried in accordance with the recognized custom of the trade. It should be noted that damage done to the ship in accomplishing a jettison of cargo is a general average sacrifice as Rule II states: "Damage done to a ship and cargo, or either of them, by or in consequence of a sacrifice made for the common safety, and by water which goes down a ship's hatches opened or other opening made for the purpose of making a jettison for the common safety, shall be made good as general average."

Rule G clearly states that general average is to be adjusted as regards both loss and contribution on the basis of values at the time and place where the voyage ends.

Claims for general average can either be asserted in ordinary state courts or in admiralty. Most litigation on this subject, however, tends to be in the admiralty court.

Salvage

The formal requisites of an act of salvage, in a way similar to those required for general average, are the following:
1) there must be a serious peril from which the vessel or property could not have been rescued without the salvor's assistance;
2) the salvor's act must be voluntary (no legal or official duty to render assistance);
3) the act must be successful in saving all or part of the property at risk.

When the property has been abandoned, anyone may become a salvor and if the owner later wants to reclaim his property, he would take it subject to a lien for the salvage claim. The owner in possession of the property, however, does not have to accept an offer of salvage. While the typical act of salvage involves the rescue and tow of a vessel at sea, the range of situations which can constitute salvage is quite broad. Among examples of salvage are the following: the escorting of a distressed ship to a position where aid can be rendered; giving information on how to avoid an obstruction such as an ice floe or to avoid running aground; carrying a message which results in the provision of emergency assistance. In general, it can be said that, so long as a vessel is in danger, almost any voluntary act which contributes to its ultimate safety or rescue may qualify as an act of salvage.

As was noted earlier, certain tests must be met for an act to qualify for salvage. For property to become subject to salvage it must be on the water or on a beach or reef. It was also mentioned that since the act of salvage must be voluntary, a person who is under a duty to provide assistance cannot claim as a salvor. A crew member, for example, would not qualify under any circumstance. The same goes for passengers. Public employees such as firemen or even licensed pilots are not entitled to an award for saving property if it was their duty to do so. On the other hand, a salvage claim is not defeated by the fact that the salving vessel is professionally equipped to render assistance or engage in salvage operations. It should be noted that, while nothing prevents a government from claiming salvage,

The items taken into account in assessing the value of the property are the ship, freight and cargo. The salvage award can never be greater than the value of the salved property and will always be substantially lower except in the case of abandoned or derelict property. Where substantial values are involved, awards tend to be under 20% of the value of the property.

Salvage awards are for salvage of property, not life.The 1912 statute does not provide for awards for the pure salvage of life unaccompanied by salvage of property. Salvors of human life, however, who have taken part in the services rendered on the occasion of the accident giving rise to salvage, are entitled to a fair share of the remuneration awarded to the salvors of the ship, her cargo and accessories. In other words, the trial court will also consider moral as well as economic issues.

There are two types of salvage contracts. One is the agreement in extremis entered into by the master of a vessel in danger under the stress of circumstances. The second type can be entered into by the owner and a professional salvage team after the immediate peril has ceased. The in extremis agreement will be enforced only if the court finds that it has been fairly negotiated and not entered into under duress with the result of an extortionary bargain for the salvor. If the court finds that a form of extortion was attempted, it may reduce the award or forfeit it entirely.

A suit to enforce a maritime lien for salvage can be brought both in rem against the vessel or in personam against any person who may be liable. The trend for the resolution of salvage disputes, however, seems to be arbitration even if extrajudicial resolutions are not necessarily binding on crews of salving vessel.

Liens

A maritime lien is a very different concept from a consensual land lien. The maritime lien arises out of contract or tort. Only certain types of maritime claims can give rise to a lien and the parties cannot by agreement modify the status of a claim. The maritime lien can only be foreclosed, or "executed" in maritime parlance, by an admiralty court acting in rem. Priority among the same class of competing maritime liens is determined by the time of their attachment but in inverse order: last in time is first in right. The maritime lien is often referred to as "secret" or "hidden" because it depends neither on possession nor notice through filing (with the exception of the preferred ship mortgage which is statutory). It is also said to be "indelible" because since it can only be executed by an admiralty court acting in rem it is valid against the whole world, including a bona fide purchaser of the vessel without regard to even bankruptcy or reorganization.

As we have seen earlier, the demise charter places the ship in the custody and control of the charterer. The question then arises as to the effect on the ship of actions by the charterer which may or may not be authorized by the owner. The law seems to be settled on this point in that the ship itself is to be treated as a principal, and as personally liable for the negligence of anyone who is lawfully in possession of her.

a claim needs to be maritime in nature to give rise to a lien. This brings us back to the section on jurisdiction, i.e. what types of structures are deemed vessels, which contracts are maritime, which torts are maritime. Once again, it must be stated that it is not possible to provide an exhaustive list. A tentative rank of liens, however, can be the following:
1) Seamen's claims for wages. As Justice Gray wrote in the John G. Stevens, "sacred liens, and, so long as a plank of the ship remains, the sailor is entitled, against all other persons, to the proceeds as a security for his wages.";
2) Salvage;
3) Tort. This includes both collision and personal injury claims;
4) General Average. The lien can be in favor of the vessel against cargo or the other way around;
5) The preferred ship mortgage. As we have seen, lien status is given by statute;
6) Supplies and repairs;
7) Towage, wharfage, pilotage, stevedoring and related services;
8) Cargo damage caused by improper loading, stowage and custody;
9) Ship's claims against cargo for unpaid freight;
10) Charter party breach either by the owner or the charterer;
11) Claims for marine pollution.

Marine Insurance

The general principles of marine insurance are the same as with other types of insurance in that there are two parties: the assured and assurer (or carrier). The assured or insured agrees to pay a premium and the insurer agrees that, if certain losses or damage occurs to certain interests of the insured, the insurer will indemnify the insured. The similarities pretty much end here. The complex circumstances involved in sea voyages require very specific arrangements for the provision of marine insurance. The fixing of rates and special conditions, for example, requires a vast knowledge of the nature of vessels and cargos and of the conditions of navigation.

The marine policy may cover the risks of a single voyage, or may insure for a certain period of time. Cargo is almost always insured by voyage. Vessels are usually insured for a certain duration of time, usually year by the year. Cargo policies may be on a single lot or may be open to cover cargo as shipped by the insured. Hull insurance, or vessel insurance, may cover a ship or a whole fleet.

Typical of marine insurance is the principle that no contract of marine insurance is valid unless the insured has an insurable interest in the subject matter at the time of loss. The term insurable interest has been variously defined. According to the English Marine Insurance Act of 1906, "every person has an insurable interest who is interested in a marine adventure.... a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or damage thereto, or by the detention thereof, or may incur liability in respect thereof".

Another issue important in the marine insurance area is misrepresentation or concealment. The marine insurance contract is one which requires the highest degree of good faith. Any misrepresentation of a fact which is material to the underwriter will void the policy. In addition, a policy can be void for breach of any of the warranties implied by law or expressed in the policy. The most common is the implied warranty of seaworthiness of the insured vessel or of the vessel carrying insured goods. Seaworthiness is a general term but is has been narrowed by case law. A ship which is seaworthy for a southern voyage may not be so for a transatlantic crossing in winter. Similarly, in cargo policies, the warranty of seaworthiness of the vessel includes fitness to carry a particular cargo.

In voyage policies, the doctrine of deviation states that the underwriter is deemed to have intended to accept only that risk that inheres in the expeditious prosecution of the voyage by the usual commercial route. If, without justification, the vessel departs from the route, or delays unreasonably in pursuing the voyage, the policy will be voided. Once voided by a deviation, the insurance contract is canceled for good and not restored by a return to the proper course. Whether or not a ship has deviated is a question which is either settled by the policy or by usage.

The main risks insured against in a marine policy are stated in the "perils" clause which is often supplemented by the "specially to cover" clauses, or restricted by provisions eliminating one or more of the insured risks.

More recently, war risks have been removed from ordinary marine policies and are covered by separate war risk policies. Ordinary marine policies no longer mean what they state and only cover those risks which are not excluded by the F.C. & S. (Free of capture and seizure) clause. Among the perils "of the seas" that are deemed to be covered under a marine policy are the extraordinary action of the wind and waves, collision, foundering, stranding, striking on rocks and icebergs. Not covered are ordinary wear and tear and losses which can be anticipated as regular incidents of sea carriage or navigation.

Hull policies, that is policies insuring ships, used to be quite specific as the risks they covered. Modern policies are written to cover most forms of liability. A "collision and running down" provision is contained in the standard hull policy to cover liability incurred for damage to another vessel or structure, and sometimes even personal injuries incurred. The protection and Indemnity policy covers against collision liability not covered by the "collision and running down" clause, as well as against all other liability exposure.

Under a marine policy a loss can be partial or total. Total losses can be actual or constructive. Actual total loss can be defined as the situation in which a ship or its goods can no longer arrive at their destination in specie. Actual total loss can also be found where the goods are so damaged in the course of the voyage that, while they still exist in specie at that time and can be sold where they are, there is no reasonable possibility that they can be transported to their destination without complete destruction or change. Constructive total loss is distinguished from actual total loss in that no formal abandonment need be made in respect of the actual total loss whereas the tender of abandonment is a prerequisite of a claim under constructive loss.

Most marine insurance policies are "agreed value" policies which means that the insured and the underwriter have already set a value for the insured vessel.

Limitation of Liability

An owner of a vessel is sometimes permitted to file for limitation of liability with regard to an event which may expose him to a claim or suit for damages. The institution of limitation of liability has its roots in medieval sea codes to encourage maritime activities and protect vessel owners at a time when corporate entities were not yet in existence. The institution, however, with some modifications, is still very much alive.

Normally, the vessel owner will institute limitation proceedings without admitting liability. He must do so within six months of the event or accident giving rise to the claims. He must also turn over to the court the ship or the equivalent value of it, whatever it might be after the event giving rise to the claims. Notice must also be given to the known claimants and is to be published. Once the limitation is in place, if the trial exonerates the vessel owner, he will owe nothing. If he is found at fault, he may be able to limit his liability to the value of the ship. A part owner of a vessel may limit his liability to his share in the vessel.

An additional bonus to vessel owners, and the subject of some controversy, is the insurance issue. An insurance company is apparently subrogated to the vessel owner and enjoys the same limitation of liability. If a yacht, following a maritime disaster, is worth $5,000 that would be the maximum the insurance would have to pay to the claimants if the limitation of liability is granted. On the other hand, because the hull insurance (which, as we have seen, is the portion of the policy which covers the vessel itself) does not go to the limitation fund, the vessel owner may collect the proceeds of such insurance, while the claimants are limited in their recovery to the value of the vessel.