The Safety Management of Ships

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 71-130

7171

CHA PTER 3

THE SAFETY

MANAGEMENT OF SHIPS

A. INTRODUCTION

Like any other business, shipping depends on proper management and

competent staff. As ships operate in the marine environment, with its in-

herent dangers and commensurate problems, crewing and management

become especially critical. Accordingly, the prof‌itable performance of a

ship’s voyage is closely linked to adequate maritime safety and security.

In the modern context this linkage is closely monitored by internation-

al law, regional controls, national regulatory systems, and industry re-

quirements. This legal regime is designed not only to protect ships and

those who sail on them from maritime and other dangers, including

terrorism, but also the marine environment from the dangers that ships

may represent. For shipowners this regime has become as important as

the commercial basis on which the shipping industry depends. In other

words, valuable ships and equally valuable cargoes have to be managed

in terms of safety and security as well as commercial viability.

Maritime risks from both perils of the sea and pirates have been

present since the sea was f‌irst used for transportation and communi-

cation.1 The use of the sea has always resulted in signif‌icant loss of

life, injury, and loss of ships and cargo. However, for much of its long

1 See Philippe Boisson, Safety at Sea: Policies, Regulations and International Law

(Paris: Bureau Veritas, 1999) ch 2, for a thorough discussion of the history of

safety at sea.

PART I: INTRODUCTION TO M ARITIME L AW AND THE SHIPPING INDUSTRY72

history, maritime law appears to have been more concerned with the

preservation of maritime property than specif‌ically with maritime safety.

In earlier times, the absence of safety concerns ensured that maritime

commerce was mainly the preserve of adventurers. Safety concerns were

partially captured in law as part of the shipowners’ obligation to furnish

a “seaworthy” ship. The legal notion of “seaworthiness” arose sometime

around the seventeenth century and generally requires a shipowner to

provide a ship that is reasonably f‌it to confront the perils of the sea.2

The notion of seaworthiness now underlies almost all aspects of private

maritime law.3 As such, it provided and continues to provide an incen-

tive to shipowners to furnish a ship that meets minimum safety stand-

ards by attaching economic consequences (beyond the loss of the ship

itself) to those who fail to do so. However, as will be seen, seaworthi-

ness is a much narrower concept than safety as addressed in the current

international conventions and domestic legislation.

The safety regime that forms the basis of modern ship operations

addresses the ship’s technical construction and equipment standards;

cargo safety; the conditions of employment for seafarers; the stand-

ards of training, competence, and wellness of seafarers; the shipown-

er’s organizational framework for the management of maritime safety;

maritime search and rescue; and accident investigations. In addition,

there is a signif‌icant implementation component that includes f‌lag state

2 William Tetley, Glossary of Maritime Law Terms, 2d ed (Montreal: International

Shipping Publications, 2004). Seaworthiness is a relative or “dynamic” term and

is def‌ined with reference to the vessel’s cargo, its intended voyage, hazards likely

to be encountered, and the vessel’s ability to withstand those hazards (Laing v

Boreal Pacif‌ic, (1999), 163 FTR 226 (TD), aff’d (2000), 188 FTR 160 (CA)).

3 This is seen, for instance, in the law of carriage of goods by sea as the obligation

of the carrier to exercise due diligence to provide a seaworthy ship (International

Convention for the Unif‌ication of Certain Rules of Law relating to Bills of Lading, 25

August 1924, 120 LNTS 155, as amended by the Protocol to amend the Interna-

tional Convention for the Unif‌ication of Certain Rules of Law Relating to Bills of Lad-

ing, 23 February 1968, 1412 UNTS 121, English text at 128 [together known as

Hague-Visby Rules], art 3); a warranty in tug and towage contracts (The West Cock,

[1911] P 23 at 31, aff’d [1911] P 208 (CA)); an implied warranty in marine insur-

ance contracts (UK: Marine Insurance Act, 1906 (UK), 6 Edw VII, c 41, s 39(1));

Canada: Marine Insurance Act, SC 1993, c 22, s 37); an implied warranty in the

hire of seafarers (Canada Shipping Act, 2001, SC 2001, c 26, s 85 [CSA, 2001]); an

implied or contractual obligation in charterparties (UK: Steel v State Line Steam-

ship Co (1877), 3 App Cas 72 at 86 (HL)); United States: Morales v Galveston, 370

US 165 at 169 (1962); as part of the implied warranty of “merchantability” in the

sale of ships (e.g., Rasbora Ltd v JCL Marine Ltd, [1977] 1 Ll LR 645 at 650 and

652); and in limitation of liability actions (The Marion, [1984] 2 Lloyd’s Rep 1;

The Tasman Pioneer, [2003] 2 Lloyd’s Rep 713 (NZHC)).

The Safety Mana gement of Ships 73

control, port state control, classif‌ication societies, and self-implemen-

tation. These developments have had a signif‌icant impact on maritime

law practice, which now responds as much to “public” maritime law

aspects as it does to the more traditional “private” law areas. This also

means that anyone practising in the area today must have a good base

of knowledge in both areas. Accordingly, this chapter will examine the

def‌inition and historical regulation of safety and the three main areas

of safety regulation, (1) technical construction and safety standards, (2)

the human element, and (3) the organizational element, under both the

international regime and Canadian domestic legislation, followed by a

discussion of the implementation of the regulatory regime. The chapter

concludes with a short review of the responses to current threats to

maritime security as a complementary aspect of the regulatory regime

for maritime safety.

B. SAFETY AT SEA: DEFINITION

Safety at sea includes the material state resulting from the absence of

exposure to danger, as well as the regime designed to create or perpet-

uate such a situation.4 Maritime safety is regarded as one of the essen-

tial elements for protecting human life at sea, for protecting maritime

property, and for protecting the marine environment. This is considered

important enough to permit a departure from the generally overriding

principle of freedom of the seas. More specif‌ically, safety at sea includes:

• Safety of navigation, involving the protection and saving of human

life at sea, providing a defence against the perils of the sea arising

from weather and sea conditions, collision, stranding, f‌ire, and any

other danger that may be encountered during the voyage by a vessel.

• Safety of trading, involving the protection of the ship against risks

that may arise from unlawful acts, such as piracy, terrorism, maritime

fraud, restraint by states, and barratry.

In other words, safety at sea is designed to protect ships and those who

sail them from two broad categories of maritime risks: personal risks,

including injuries and death resulting from accidents on board ships,

and collective risks that are specif‌ically related to the ship, its cargo, and

its navigation.5 Maritime risks are generally set out under seven princi-

pal casualty categories:

4 Boisson, above note 1 at 31.

5 Ibid.