ISM规则下有关船舶适航的法律适用问题

海事司法实务中,作为国际公约的ISM规则在国内适用,势必对船舶适航的认定产生重大影响。肯定了ISM规则对航行于国际航线的我国船舶适用所具备的条件,并阐明在船舶适航方面ISM规则适用的法律依据。     

ISM Code implementation: an investigation of safety issues in the shipping industry

Acknowledging that shipping safety continues to be a major topic of interest in the maritime community, the present study attempts to identify the critical factors of International Safety Management (ISM) Code implementation, to identify the dimensions that describe whether the ISM Code has fulfilled its intended purpose as well as to assess their interrelationships. Moreover, the present study aims to explore whether the fulfillment of the Code’s intended purpose is associated with accident reduction. Evidence was drawn from a sample of 63 masters and chief officers who have hands-on onboard experience on ISM Code implementation and data were analyzed through the use of Exploratory Factor Analysis (EFA), correlation analysis, and binomial logistic regression. Findings indicate that the critical factors of ISM Code implementation can be categorized in the crew-related and the company-related dimensions. Also, the fulfillment of the intended purpose of the ISM Code consists of the factors of safety management system efficiency and increased safety, which were also found to be significantly associated with the crew-related dimension of ISM Code implementation. Finally, results showed that both safety management system efficiency and increased safety increase the probability of accident reduction at the highest level.     

Critical factors for successful implementation of the ISM Code in some Pacific Islands states

Although the International Safety Management (ISM) Code was fully implemented from July 1st 2002, not all countries signatories to the Code, particularly developing countries such as Pacific Islands states, are successful in the introduction and implementation of the instrument. In this paper, we aim to determine factors that facilitate the successful implementation of the ISM Code particularly for the above-named region. Through a thorough literature review, a model of 11 critical factors for the Code implementation success was proposed. These factors were empirically tested using the triangulation of a survey of a group of maritime administration personnel and shipping companies in Fiji and two indepth interviews with senior officers in the Samoa Maritime Administration during the period June–August 2007. The proposed factors were verified by both survey respondents and interview informants, i.e., that maritime safety awareness rooted in a safety culture, senior management commitment and leadership across organisations and the industry, employee involvement and empowerment, enforcement capability of flag state administrations, application of quality management principles in safety management systems, rationalisation of documentation, among others, are essential to the successful implementation of the Code. This research hopes to contribute to the literature and to provide maritime administrations and shipping companies in the Pacific Islands states with additional reference and information that will help expedite the effective implementation of the ISM Code. The need for future research directions is expressed in this paper. Additional investigations, e.g., conducting the same research in other Pacific Islands states as well as in other developing countries in the Asia-Pacific region, would enhance the validity and reliability of this study’s findings.     

海商法的统一化——现状、问题与对策

海商法是随着航海贸易的发展而产生和完善起来的。它的国际性决定了其发展呈现一个总的趋势和原则——海商法的统一化。以国际公约、国际惯例、示范规则等形式表现的国际统一海商法在具有全方位、多领域、内容前瞻性等特点的同时,也存在大统一、小分散、法律冲突仍旧突出等问题。采用“默示承诺程序”,充分发挥海事国际组织的规范协调作用、利用统一冲突法等对策可以弥补缺陷。     

Safety culture in shipping

The emergence of a safety culture in shipping has been promoted, especially by the Secretary General of the International Maritime Organization. However, what is really meant by a safety culture? The adoption of the International Safety Management Code and of the amended International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, STCW 95, together with the introduction of Formal Safety Assessment in the IMO rule making process are considered as the major tools contributing to the emergence of such. This article examines the evolution of the concept of maritime safety concept during the last decades and discusses how the adoption of new international instruments has contributed to improve the maritime safety system. It provides possible definitions of maritime safety and safety culture and discusses how far the maritime safety system is from a culture of safety.     

水上交通事故安全调查独立性的研讨

独立的水上交通事故安全调查是目前世界海事组织推荐的一种事故调查模式。结合我国海事调查的实际情况，从法学理论到海事执法实践，从国际公约要求到社会安全需求等方面说明了事故安全调查独立性的必要性。同时，通过对这种海事调查模式的综合分析，论述了独立性事故安全调查与国际合作调查的关系，并对其未来的发展进行了探讨。     

Maritime safety and the ISM code: a study of investigated casualties and incidents

In 1993, the International Maritime Organization adopted the International Safety Management (ISM) Code which requires all shipping companies operating certain types of vessels to establish safety management systems. Nevertheless, two decades later, maritime safety remains a concern. This article studies 94 maritime cases investigated by the Maritime Accident Investigation Branch in the UK. By providing an analysis of reported casualties and incidents, it highlights current challenges in maritime safety. For each casualty and incident, the study reviews the underlying causal factors. These causal factors are then coded according to the functional sections of the ISM Code, covering various aspects of safety management. To investigate human and organizational factors involved in the casualties and incidents, the human factor analysis and classification system (HFACS) is applied to code the same data. Finally, the relative seriousness of casualties and incidents is considered to discuss the findings from ISM Code and HFACS reviews. The study found that the main challenges pertain to the development of plans for shipboard operations, local shipboard management, and the ability of the company to verify when such practices deviate from best practices or required standards.     

An empirical assessment of ISM Code effectiveness on performance: the role of ISO certification

ABSTRACT

Although the introduction of the International Safety Management (ISM) Code aimed at increasing the safety standards in the maritime industry, several studies conducted so far argue for its inability to successfully fulfill its goals. The purpose of the current study is to evaluate the ISM Code effectiveness by drawing analogy from similar applications of ISO 9001 effectiveness in service companies. It also aims to determine its impact on firm performance and differentiate between ISO and non-ISO-certified shipping companies. Findings indicate that ISM Code effectiveness consists of two dimensions, namely continuous improvement and customer satisfaction focus, and the significance of its contribution on improving company performance is revealed, especially in the case of ISO-certified shipping companies. Moreover, the continuous improvement dimension was found to affect performance at a greater extent.     

无船承运人民事法律地位的认定

结合《国际海运条例》和《海商法》的规定,分析无船承运人与货主托运人之间的法律关系,指出其与国际船舶运输经营者间的法律关系存在的困惑,并提出解决的基本思路。     

Incident reporting in Finnish shipping companies

The purpose of the International Safety Management Code (the ISM Code) is to promote safety culture in the maritime industry. Learning the lessons from incidents should help to improve safety performance since incidents and accidents can share the same root causes. The aim of this paper is to take a closer look at incident reporting in the Finnish shipping industry, to study the reasons for poor incident reporting and to suggest improvements to increase reporting. The paper consists of a literature study, which focuses on previous studies concerning incident reporting, and an interview study, which focuses on Finnish shipping companies and their personnel. The interview study confirmed that incident reporting does not function properly within the Finnish maritime industry. The maritime personnel have an occupational culture which is incompatible with the rule-based safety management approach provided by the ISM Code. The willingness to report incidents could be increased if all seafarers were involved in the reporting process and the preparation of corrective actions. In addition, the reporting procedures should be streamlined and developed to a more user-friendly direction.     

The place of the ISPS Code in the legal international regime

The adoption of the International Ship and Port Facility Security Code (ISPS Code) is the latest response of the international shipping community to the increasing threat posed by acts of terrorism at sea. The ACHILLE LAURO incident of 1985 showed that the traditional law against piracy was not adequate to deal with new types of unlawful acts against international shipping, especially those involving acts of terrorism. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and the technical and administrative measures adopted by the Maritime Safety Committee of IMO in 1986 and 1996 attempted to develop a broader regime to deal with unlawful acts against international shipping.However, the events of September 11, 2001 showed that additional measures were still needed to prevent terrorist attacks against ships.     

New security measures for the international shipping community

On 1 July 2004 the new maritime security regulatory regime set out in the International Convention for the Safety of Life at Sea (SOLAS), 1974 as amended, namely the new chapter XI-2 on Special measures to enhance maritime security and the International Ship and Port Facility Security (ISPS) Code entered into force only 18 months after adoption by the SOLAS Conference in December 2002. Following the devastating terrorist acts of 11 September 2001 in the United States, the international community recognised the need to protect the international maritime transport sector against the threat of terrorism. IMO responded swiftly and firmly by developing these new requirements, which represent the culmination of co-operation between Governments, Government agencies, local administrations and shipping and port industries.     

The international legal instruments in addressing piracy and maritime terrorism: A critical review

This paper critically reviews four international legal instruments in addressing piracy and maritime terrorism - UNCLOS, SUA, PSI and the ISPS Code. Piracy on high seas is currently becoming key tactics of terrorist groups - many of today's pirates are also terrorists with ideological bents and a broad political agenda. The intertwining of piracy and maritime terrorism poses substantial risks for global markets, understanding that much of the world's energy and cargoes being shipped through pirate-infested regions like Southeast Asia. Through investigating the contributions and limitations of the stated instruments, several constructive recommendations are offered to improve their effectiveness in controlling and deterring piracy and maritime terrorism from threatening the well-being of the maritime industries in the post-2008 world.     

海事公约对第三国产生效力之原理

“条约不约束第三国”是一项古老的国际习惯法规则，亦称为“条约的相对效力原则”。即条约只约束缔约国，未经第三国同意，条约既不能为第三国创设权利，也不能为第三国施加义务。这一原则早就得到众多国际法学者的肯定，并被国际司法实践所接受和确认。国际海事公约在明确这一原则的同时，规定了“不优惠条款”，     

论《国际海运固体散装货物规则》的实施

文中就《国际海运固体散装货物规则》生效后,根据交通运输部海事局《关于执行<国际海运固体散装货物规则>有关事项的通知》要求,结合国内固体散装货物运输的现状,就海运固体散装货物申报、载运固体散装货物船舶申报进行了细致分析。对载运固体散装货物船舶提出了具体要求。针对检测机构,固体散装货物装、卸作业单位和海事机构监管工作提供了具有可操作性的参考。     

EU maritime transport

The purpose of this paper is to summarize the European maritime transport policy within the context of maritime politics at large. At the outset the legal framework conditions and supportive instruments for the shipping and port industries are presented. Against the background of recent accidents at sea, such as the sinking of ERIKA and PRESTIGE, the EU legislation on maritime safety is of particular interest as it is both complex and rapid in reaction to environmental needs and political pressure. Finally, the sensible relationship between the EU as a regional organization and the IMO as “the competent international organization” is discussed with a view to reconcile possible rivalry and to suggest a complementary cooperation between the two organizations.     

基于ISM规则的安全文化建设

ISM规则提供的是体系化的科学管理方法,总结和借鉴了世界许多领域现代化的管理经验,特别是航运安全管理的经验,是对国际航运安全文化的重大发展。通过ISM规则对安全文化建设的分析,提出航运企业安全文化建设的途径。     

重视《NSM规则》管理船舶安全实施科学有效监管

随着《NSM规则》的全面实施,,一些游离在《NSM规则》管理之外的船舶,呈现出掉队、淘汰的趋势或成为安全管理的难点。本文结合在海事行政执法过程中的工作体会,从坚持科学发展观出发,通过对非公司化管理船舶的形成原因、发展趋势和安全现状的分析,提出实施科学有效监管的措施,以期达到推进船公司规范、健康和好中加快发展的目的。     

Some unsettling maritime terms: the interpretation of found, cargo, ballast and voyage

This paper examines the meaning of four common maritime and admiralty terms: found, cargo, ballast and voyage . These terms are problematic because their definitions are elastic which makes application of the terms difficult. The four terms are important because significant legal consequences are attached to each of them, particularly for seamen on flags of convenience (FOC) and crews of convenience (COC) vessels in US ports. The findings of the author are based on personal experience as well as research conducted in preparation as an expert witness in several maritime cases in both the US District Courts and in Louisiana State Courts, personal interviews with seamen on FOC/COC vessels, interviews with legal and economic experts on the international maritime industry and officials of national and international labour organizations.     

The jurisdictional challenges to the prosecution of piracy cases in Kenya: mixed fortunes for a perfect model in the global war against piracy

Since 2008 Kenya has distinguished itself in the global war against piracy by undertaking prosecutions in the national courts of suspected pirates arrested in the high seas and handed over by navies of leading maritime nations under bilateral agreements (MOUs) entered into between Kenya and these leading maritime nations. As of July 2011, Kenya had over 20 convicted pirates serving jail terms ranging between 7 and 20 years and over 100 suspected pirates awaiting trial in national courts. This is the largest number of suspected pirates held and tried in any one state at any given time in modern history. To achieve this, Kenya had to effect far reaching changes in the law. In the initial stages, suspected pirates were charged under Kenya’s Penal Code (Cap 63 Laws of Kenya). However, the high court in the case of Re Mohamud Mohamed Dashi and eight others [2010] eKLR, ruled that Kenya had no jurisdiction to try suspected pirates under that law. In September 2009, Kenya passed a new law (the Merchant Shipping Act), which not only defined more comprehensively and extensively the offence of piracy, but also extended the jurisdiction of Kenyan courts to try piracy committed by non-nationals. Though the law gives Kenya a very broad jurisdiction to try suspected pirates, the process is still fraught with challenges due to lack of financial and human resources. In the case of Republic vs Hassan Jama Haleys Alias Hassan Jamal and five others [2010] eKLR, the court commented thus:

“… I must note that the ‘piracy trials’ have presented a unique challenge to the Kenyan legal system. We cannot ignore the fact that these are suspects who having been arrested by foreign naval forces on the High Seas are brought to Kenya for trial. They are strangers in the country, do not understand the legal system, may not know what their rights are and do not understand the language… the Kenyan Government and the International partners supporting these trials put in place a system to provide free legal representation for the suspects…”