MERCHANT SHIPPING (ISM CODE) REGULATIONS, 1998
The Minister of Transport has, under section 356 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), made the regulations in the Schedule.
Interpretation
1. (1) In these regulations, any word or expression given a meaning in the Act has that meaning and, unless the context indicates otherwise—
"1974 SOLAS Convention" means the International Convention for the Safety of Life at Sea, 1974, and the 1978 Protocol;
"Authority" means the South African Maritime Safety Authority established by section 2(1) of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998);
"bulk carrier" means a ship that is constructed generally with single deck, top-side tanks and hopper side tanks in cargo spaces, and is intended primarily to carry dry cargo in bulk, and includes such types of ore carriers and combination carriers; and "in bulk" means directly and without intermediate form of containment in a tank forming a structural part of or permanently attached to a ship;
"certifying authority" means the Authority and any other organisation or person duly authorised to act on its behalf for the purposes of these regulations;
"chemical tanker" has the meaning given in regulation 1(1) of the Merchant Shipping / Marine Pollution (IBC Code) Regulations, 1998, published by Government Notice No. R. 133 of 23 January 1998;
"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 operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all duties and responsibility imposed by these regulations;
"document of compliance", in relation to—
(a) the company of a South African ship, means a document issued in pursuance of regulation 5; and
(b) the company of any other ship, means a document issued in conformity with paragraph 13.2 of the ISM Code by or on behalf of the government of the state whose flag the ship is entitled to fly;
"gas carrier" has the meaning given in regulation 1(1) of the Merchant Shipping (IGC Code) Regulations, 1998, published by Government Notice No. R. 132 of 23 January 1998;
"high speed craft" means a craft capable of a maximum speed in metres per second (m/s) equal to or exceeding 3×7 Ñ 0×1667, where Ñ = displacement corresponding to the design waterline (m²);
"IMO" means the International Maritime Organisation;
"implemented effectively" means ensuring that the objectives mentioned in paragraph 1.2.3 of the ISM Code are met;
"ISM Code" means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by IMO by resolution A.741(18), as amended from time to time;
"major non-conformity" means an identifiable deviation that poses a serious threat to the safety of a ship or its crew, or to the environment, and includes failure to implement effectively a requirement of the ISM Code;
"oil tanker" has the meaning given in regulation 1 of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the 1978 Protocol, and set out in the Schedule to the Marine Pollution (Prevention of Pollution from Ships) Act, 1986 (Act No. 2 of 1986);
"safety management audit" means an examination carried out in accordance with the Guidelines to determine whether safety management system activities and related results comply with planned arrangements and whether these arrangements are implemented effectively and are suitable to achieve objectives;
"safety management certificate", in relation to—
(a) a South African ship, means a certificate issued in pursuance of regulation 6; and
(b) any other ship, means a certificate issued in conformity with paragraph 13.4 of the ISM Code by or on behalf of the government of the state whose flag the ship is entitled to fly;
"safety management system" means a structured and documented system enabling company personnel to effectively implement the company safety and environmental protection policy referred to in paragraph 2 of the ISM Code;
"surveyor" has the meaning give in section 2(1) of the Act;
"the Act" means the Merchant Shipping Act, 1951 (Act No. 57 of 1951);
"the Guidelines" means the Guidelines on implementation of the International Safety Management (ISM) Code by Administrations adopted by IMO by resolution A.788(19), as amended from time to time;
(2) In interpreting the ISM Code—
(a) the requirements of the Code having been made mandatory under regulation 3, the language thereof must be construed accordingly;
(b) the definitions set out in paragraph 1.1 of the Code apply;
(c) the provisions of the Code must be construed in accordance with the Guidelines and any other relevant guidelines that may be adopted by IMO from time to time and notified by marine notice;
(d) references to the Administration are, in relation to South African ships and their companies, references to the Authority.
Application
2. (1) Subject to subregulations (2) and (3), these regulations apply to the following ships, regardless of their date of construction:
(a) All passenger ships; and
(b) oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high speed craft of 500 gross tons or more.
(2) These regulations apply to all ships referred to in subregulation (1) that are South African ships, wherever they may be, and to other such ships while they are in the Republic or its territorial waters; but in the case of a ship registered in a state not party to the 1974 SOLAS Convention, the regulations do not apply by reason of the ship’s being in the Republic or its territorial waters if it would not have been there but for stress of weather or any circumstances that could not have been prevented by the owner, the master or the charterer (if any).
(3) These regulations do not apply to ships operated by the government of another state and used solely for non-commercial purposes.
Compliance with ISM Code
3. Every ship to which these regulations apply and every company must comply with paragraphs 1.2, 1.4 and 2 to 12 inclusive of the ISM Code.
Verification requirements
4. (1) For the purpose of the issue of a document of compliance to a company, the company’s compliance with the requirements of the ISM Code must be subjected to the following verifications:
(a) An initial verification before the document of compliance is issued for the first time, which must ensure that the company’s safety management system complies with the requirements of the ISM Code and is implemented effectively;
(b) a renewal verification at intervals not exceeding five years, within three months before or after the anniversary date of the document of compliance, which must ensure that all elements of the company’s safety management system are effectively implemented, and that any modifications made to the safety management system comply with the requirements of the ISM Code;
(c) an annual verification within three months before or after the anniversary date of the document of compliance, which must confirm the effective functioning of the safety management system; a record of such verification in the form entitled Endorsement for Annual Verification set out in appendix 2 to the Guidelines must be endorsed by the surveyor on the document of compliance;
(d) an additional verification must be made when application is made under regulation 7(2) for the extension of a document of compliance to cover additional ship types; such verification must ensure that the company is capable of complying with the requirements of the ISM Code for such ship types.
(2) For the purpose of the issue of a safety management certificate to a ship, the ship’s compliance with the requirements of the ISM Code must be subjected to the following verifications:
(a) An initial verification before the safety management certificate is issued for the first time, which must ensure that the company and its shipboard management operate in accordance with the safety management system approved under regulation 5(1); that the document of compliance issued to the company is applicable to the particular ship, and that the shipboard safety management system complies with the requirements of the ISM Code and is implemented effectively;
(b) a renewal verification at intervals not exceeding five years, within three months before or after the anniversary date of the safety management certificate, which must ensure that all elements of the safety management system pertaining to the ship are implemented effectively, and that any modifications made to the safety management system comply with the requirements of the ISM Code;
(c) a minimum of one intermediate verification during the period of validity of the safety management certificate; in cases where only one such verification is carried out in any one certificate validity period, it must be carried out not before six months prior to, nor later than six months after, the half-way date of the certificate’s period of validity; intermediate verifications must ensure the effective functioning of the safety management system pertaining to the ship, and must ensure that any modifications to the safety management system made since the previous verification comply with the requirements of the ISM Code; a record of such verification in the form entitled Endorsement for Periodical Verification and Additional Verification (If Required) set out in appendix 2 to the Guidelines must be endorsed by the surveyor on the safety management certificate;
(3) Every such verification in relation to a South African ship or its company must—
(a) include a safety management audit of the company or the ship, as the case may be, which must include an assessment of—
(i) the safety management system’s compliance with the requirements of the ISM Code; and
(ii) the extent to which the safety management system is implemented effectively; and
(b) be carried out by a qualified surveyor in the service of a certifying authority.
(4) Application for verification under this regulation must be made by or on behalf of the company as follows:
(a) For an initial or a renewal verification, to any certifying authority;
(b) for an annual, intermediate or additional verification, to the certifying authority that issued the document of compliance or the safety management certificate, as the case may be.
Issue of document of compliance
5. (1) Upon satisfactory completion of an initial or renewal verification under regulation 4(1) the certifying authority must issue to a company that complies with the requirements of the ISM Code a document of compliance in the form so entitled set out in appendix 2 to the Guidelines. Such document must be issued for a period not exceeding five years beginning on the date of completion of the verification in question and is valid for the types of ships on which the initial verification or renewal verification, as the case may be, was based.
(2) A document of compliance ceases to be valid—
(a) if any verification required by regulation 4(1)(c) is not completed within the period specified for that verification; or
(b) if the Authority is satisfied that there is evidence of a major non-conformity with the ISM Code.
(3) In each of the cases specified in subregulation (2)(a) and (b) the company must surrender the document of compliance to the Authority on demand.
(4) A copy of the document of compliance must be carried on board every ship to which it relates, and must be kept available for inspection at all reasonable times.
Issue of safety management certificate
6. (1) Upon satisfactory completion of an initial or renewal verification under regulation 4(2) the certifying authority must issue to a ship that complies with the requirements of the ISM Code a certificate called a safety management certificate in the form so entitled set out in appendix 2 to the Guidelines. Such certificate must be issued for a period not exceeding five years beginning on the date of completion of the verification in question.
(2) A safety management certificate ceases to be valid—
(a) if any verification required by regulation 4(2)(c) is not completed within the period specified for that verification;
(b) if the relative document of compliance ceases to be valid;
(c) if the Authority is satisfied that there is evidence of a major non-conformity with the ISM Code; or
(d) upon transfer of the ship to registry in another state or to another company.
(3) In each of the cases specified in subregulation (2)(a), (b), (c) and (d) the company must surrender the safety management certificate to the Authority on demand.
(4) The safety management certificate must be carried on board the ship, and must be kept available for inspection at all reasonable times.
Maintenance of conditions after verification
7. (1) The safety management system must be maintained so as to conform to the requirements of the ISM Code.
(2) Subject to regulation 4(1)(d) and (4), a company may apply to a certifying authority for extension of a document of compliance issued to it under regulation 5 to cover additional ship types; and if the application is granted the certifying authority must either endorse or re-issue the document of compliance accordingly.
Exemptions and transitional arrangements
8. (1) The Authority may, with or without conditions, exempt any company or ship from any of the requirements of these regulations, provided such exemption is not inconsistent with the provisions of the ISM Code, and it may, after reasonable notice, amend or cancel any exemption so granted.
(2) Without limiting the generality of subregulation (1), an exemption under that subregulation may require the obtaining of an interim document of compliance or an interim safety management certificate in the circumstances mentioned in paragraph 3.3 of the Guidelines; and whenever such a document or certificate is required, it must be issued in the form so entitled set out in appendix 2 to the Guidelines.
Ships not to proceed to sea without ISM Code certificates
9. (1) No ship to which these regulations apply may proceed to sea from any port, unless—
(a) there is on board and in force in respect of that ship a valid safety management certificate; and
(b) a copy of a valid document of compliance issued in respect of that ship’s company and covering the type of ship concerned, is carried on board the ship.
(2) The master of a ship that is at a port in the Republic must produce to the officer of customs from whom a clearance for that ship is requested, the documents referred to in subregulation (1); and if those documents are not produced, the ship may (without prejudice to any other provision of the Act authorising same) be detained in accordance with section 335 of the Act until the documents are produced.
Penalties
10. If there is a breach of—
(a) regulation 3, 5(4), 6(4), 7(1) or 9(1) then the company and the master of the ship are each guilty of an offence punishable on conviction by a fine or by imprisonment for a period not exceeding 12 months;
(b) regulation 4(3)(b), 5(3) or 6(3) then the company is guilty of an offence punishable on conviction by a fine or by imprisonment for a period not exceeding 12 months.
Short title
11. These regulations are called the Merchant Shipping (ISM Code) Regulations, 1998.