Eurasian Dream, ISM and Seaworthinessby Ian MacLean(published Lloyds List - 22 May 2002 )

Since the first drafts of the ISM Code appeared, there has been much debate and speculation as to what impact the implementation of the Code would have on judicial determination relating to issues of seaworthiness. A recent High Court judgment, (The Eurasian Dream), has provided some insight into this matter.

In July 1998, at the port of Sharjah, the car carrier Eurasian Dream became a constructive total loss and her entire cargo was destroyed after crew were unable to contain a fire that originated in a vehicle aboard the vessel. The fire had started while stevedores were simultaneously refuelling and jump-starting vehicles prior to discharge. At the time of the loss, there was no mandatory requirement for Eurasian Dream to be ISM Certificated. However, the Court found that the Managers had an ISM system in place and that the vessel was subject to the same Safety Management System as other vessels in their fleet.

The issue before the Court was the question of liability for the damage to cargo. It was common ground that the Bill of Lading contracts incorporated either the Hague or the Hague-Visby Rules. Under Article III of the Rules, the carrier is required to exercise due diligence before and at the commencement of the voyage to provide a seaworthy vessel. Furthermore, the vessel must be properly manned, equipped and supplied with cargo compartments, which are fit and safe for the reception, carriage and preservation of cargo.

The Court found that the Eurasian Dream was unseaworthy and that this unseaworthiness was causative of the cargo loss for which the Bill of Lading carrier was liable. The Court held that the vessel was unseaworthy by reason of:

the condition of the vessel's equipment, and the lack of competency / efficiency of the Master & Crew, and the inadequacy of the documentation supplied to the vessel.

The Court held that these deficiencies acted cumulatively to make the vessel unseaworthy. It is debatable whether the individual deficiencies in isolation would have rendered the vessel unseaworthy. In reaching its conclusion, the Court also took into account the special risks presented by car carrier operations.

With regard to the vessel's equipment, there was evidence of defective fire extinguishers, fire hydrants tied with rope and problems with activation of the CO2 extinguishing system. The court was also critical of the number of breathing apparatus sets and walkie-talkies carried although it was acknowledged that the vessel's equipment complied with SOLAS regulations. Clearly then, there may be circumstances where mere compliance with SOLAS regulations may be insufficient for the purposes of establishing seaworthiness. This suggests that it is incumbent on the Manager / Owner to perform a risk assessment to determine safety equipment requirements, having regard to the vessel type, nature of the cargo and trade, rather than merely relying on compliance with SOLAS regulations.

The Eurasian Dream was equipped with four walkie-talkies. At the time of the fire, three of these were being used for bunkering operations. The Court stated that in addition to the sets being used for bunkering, there should have been sufficient sets

for the Master, Chief Officer and all other officers / crew involved in supervising the discharge of cargo to be able to contact each other.

The crew were unaware of the fire hazards presented by carriage of vehicles on a car carrier and were unable to respond appropriately once the fire started. There was criticism that fire drills were undertaken on the first Sunday of each month thereby removing the element of spontaneity. It was accepted by the superintendent responsible for the vessel that these drills should have been conducted weekly and that he should have noted this failure when checking the log abstracts.

It is the Court's comments relating to the documentation supplied to the vessel that will be of the greatest interest to those involved in the implementation of ISM. The Master of the "Eurasian Dream" was new to the vessel, to car carriers in general and to the Managers of the vessel. Despite this, he had only been provided with a standard briefing letter directing him to read the manuals onboard. It was agreed that the Master of the Eurasian Dream would have required two to three weeks to read all manuals. The Managers were found at fault for not providing a briefing letter targeted both at the vessel type and the Master's experience. Such a letter should either have summarised the guidance to be given to a Master in relation to emergency procedures or have directed him to the relevant parts of the manuals.

Additionally, the Managers had provided no documentation relating to the danger of fires on car carriers, the handling of cargo, supervision of stevedores, the use of gas tight doors and CO2 in fighting a car carrier fire or procedures for evacuating personnel, (including stevedores), in the event of a fire. All this information should have been contained in a ship specific manual dealing with fire prevention and control. The Court was critical that there was no such manual. It was further stated that there was too much documentation; much of it was irrelevant and / or obsolete often referring to other vessel types. It was concluded, "For efficiency and competence of response, only one code or set of procedures should have been prescribed for the Master of a pure car carrier."

Those Masters who have been expected to familiarize themselves with a new Safety Management System on joining a vessel will take comfort that the Court found the Eurasian Dream's documentation too voluminous to be digestible and that a Manager does not discharge his responsibility by simply instructing the Master to read the manuals and instructions onboard.

When reviewing the concept of seaworthiness, the Court noted that this must be judged by the standards and practices of the industry at the relevant time. The ISM Code is shortly to become mandatory for all and will consequently become an integral part of "the standards and practices of the industry." Accordingly, it appears likely that in any future dispute over seaworthiness, Managers and Owners should be prepared to be subject to close scrutiny of the implementation and effectiveness of their ISM systems. They should also take note that mere compliance with SOLAS regulations regarding equipment onboard may not always be sufficient for the purposes of establishing seaworthiness. Finally, the case of the "Eurasian Dream" should serve as a warning to those Owners / Managers that have purchased an, "off the shelf" ISM system, that the courts will be prepared to examine the adequacy, relevance, size and "user friendliness" of the manuals as well as the method by which key personnel are familiarized with the system.