The ISM Code

The ISM Code is the maritime industry’s principal regulatory instrument for OHSM on ships (Bhattacharya, 2009; Trafford, 2009; Anderson 2003). Developed as a response to a series of maritime casualties in the 1980s and 1990s, (Table 3.1), the Code is a systems approach to OHSM inspired by such approaches that had developed for land-based enterprises (Walters and Bailey, 2013). Prior to its adoption, the ship-owning community at the time, represented by the International Chamber of Shipping (ICS) and the International Shipping Federation (ISF), developed a voluntary Code of Good Management Practice in Safe Ship Operations for their members.

At that time the UK also issued a number of maritime notices which were presented at the IMO which was discussing mechanisms to address these casualties at sea (Anderson, 2003). After the Herald of Free Enterprise disaster, the UK developed the Merchant Shipping (Operations Book) Regulations 1988. Following the MV Scandinavian Star casualty in 1990, elements of these UK regulations and those voluntary codes developed by shipowners, were formulated into the ISM Code. The ISM was inserted as Chapter IX into the IMO’s Safety at Life at Sea (SOLAS) Convention. It was adopted in 1994 and phased in until it came into effect for all types of vessels in July 2002 (Anderson, 2003). With that, regulated self-regulation of OHS was introduced into the shipping industry (Bhattacharya, 2009).

24 _{One effect of increased technology was to reduce the number of seafarers required to ‘man’}

(crew) a ship. However, with work intensification this reduced manning was offset which the industry has not addressed (eg. Bhattacharya, 2009).

Table 3.1: Selected Maritime Casualties Influencing Development of the ISM

Year Name of Ship Casualties

1987 Herald of Free

Enterprise (ferry)

Capsized off Zeebrugge – 190 persons died

1987 Dona Paz (ferry) Collided with a tanker – Philippines – 4,386 persons died 1989 Exxon Valdez (oil

tanker) Ran aground – Alaska, pollution damage

1990 Scandinavian Star

(ferry) 158 persons died

1991 Agip Abruzzo (oil tanker) Moby Princess (ro-ro-ferry)

Collision - Livorno, Italy - 143 persons died, pollution damage

1991 Haven (oil tanker) Fire and explosion - Genoa, Italy - 6 crew died, pollution damage

1991 Salem Express (ferry) Struck a reef – Egypt – 470 persons died

1992 Aegean Sea (oil tanker) Broke in two off La Coruna, Spain - pollution damage 1993 Braer (oil tanker) Grounding – Shetland Islands - pollution damage 1994 Estonia (ro-ro

passenger ferry)

Sinking - 852 persons died

1996 Sea Empress (oil tanker) Milford Haven, UK – pollution damage

Source: Anderson 2003

The ISM Code focussed on shipowners (or managers) as the main duty holders with legal responsibility for safety but espoused the idea that everyone was responsible for safety, in the spirit of self-regulation. A similar thinking to the land-based self-regulatory regime examined in Chapter 2 (Section 2.3) underpins the ISM Code (Walters and Bailey, 2013: 130-139). The IMO website confirms the ideology of the Code and the self-regulatory thrust:

Effective implementation of the ISM Code should lead to a move away from a culture of "unthinking" compliance with external rules towards a culture of "thinking" self-regulation of safety - the development of a 'safety culture'. The safety culture involves moving to a culture of self-regulation, with every individual - from the top to the bottom - feeling responsible for actions taken to improve safety and performance. Application of the ISM Code should support and encourage the development of a safety culture in shipping.25

25 _{IMO website: Human Element [Available at]:}

http://www.imo.org/en/OurWork/HumanElement/Pages/Default.aspx [Accessed: 16 October 2016].

Ironically, the ISM seems to have led to some amount of “unthinking” compliance in managing safety contrary to the vision outlined by the IMO (Anderson, 2003; Bhattacharya 2012a). For example, Bhattacharya (2012a) found that seafarers tended to rely more on their skills and experiences to manage day- to-day shipboard safety rather than the ISM procedures which, in instances, were found to be unsuited for situations that arose on board. Rather, the ISM was viewed as a paper exercise which was completed to satisfy the shore-based office. The IMO seemed to have promoted self-regulation uncritically and omitted to make allowances for seafarers’ autonomous participation, similar to the experiences on land. But unlike land-based sectors, unions had no influence at the IMO to raise the issue of on board representation to support the ISM requirements. Self-regulation has been criticised for land-based industries as an ineffective paradigm for OHSM owing to the structural conditions in the workplace and workers’ vulnerability due to the unequal power inherent in the employment relationship (Chapter 2, Section 2.3).

This critique is also relevant for the shipboard work environment. The literature shows that self-regulation has its limitations owing to working conditions that militate against seafarers’ participation (Xue et. al., 2017; Walters and Bailey, 2013; Bhattacharya, 2012a; 2012b; Bailey, 2006). Xue et. al., (2017) for example, found that seafarers underreported incidents for fear of losing their jobs. A similar finding emerged in Bhattacharya’s (2012a) study discussed in Section 3.5. A criticism of the ISM Code is that it has no binding provisions for seafarers’ participation although this is presumed under self-regulation.

The ISM Code system does entertain notions of participation on ships (Bhattacharya, 2012a). OHS committees are to be established and seafarers are encouraged to participate. However, critics of self-regulation have argued that precarious workers do not have the power position for self-regulation to deliver the envisaged outcomes (Lewchuk, 2013a; 2013b; Nichols, 1997). As precarious workers, seafarers for the most part are also not in a position to individually represent their interests (Bhattacharya, 2012b; Kahveci and Nichols, 2006), which is the preferred modus operandi under self-regulation. Studies revealed that the

ISM Code was not implemented as envisaged in many instances and therefore failed to achieve the desired purpose of effective OHSM (Bhattacharya, 2012a; Bailey, 2006; Anderson, 2003).

The ISM is a systems approach where companies develop and implement safety management systems (SMSs) as the core activity in safety management (Trafford 2009; Anderson, 2003). SMSs are described as standardized commercial packages used to manage work processes (Frick et. al. 2000). These are voluntary and driven by documented procedures with audits as the main means of accountability. These systems have not been viewed with much confidence for addressing workplace health and safety issues. However, there are those who argue that SMSs have the potential to encourage positive OHSM practices if effectively implemented and there is management commitment to participation (Gunningham and Johnstone, 1999).

SMSs are contrasted with a systematic approach to OHS, which is regulated management. In distinguishing between these two approaches and their implications for workers’ participation, Frick et. al. (2000) argued that a systematic approach provides for worker participation, while a systems approach emphasises the role of management who are not obligated to consult with workers. Scholars in this field have argued for the importance of workers’ participation and the preconditions to ensure self-regulation serves not only the purpose of management but those of workers (Chapter 2). These conditions were not articulated in the ISM Code (Bhattacharya, 2012a). Figure 3.1 outlines the main distinctions between these two approaches.

Figure 3.1: General Distinctions between Systematic OHSM and OHSM Systems

Systematic OHSM OHSM Systems

• Regulated minimum standards for OHSM

• Applicable to all types of employers • Risk assessment is a key component • Mandated worker participation • (pluralist)

• Voluntary, market-based packages • Highly formalized prescriptions for

OHSM as an integrated element in the business process

• Emphasizes documentation

• Management driven – top-down focus (unitary)

Another concern regarding the ISM system is that its management focus, coupled with a behaviour-based paradigm, might have encouraged a top-down authoritarian approach to OHSM (Walters and Bailey, 2013). In assessing the effectiveness of the ISM Code, Bhattacharya, (2012a; 2012b; 2009) reveal a clear leaning towards a behaviourist approach. The behaviourist approach on the part of the managers in that study echoed the underlying narrative of “human error” in accident causation. Incident reports developed by the companies, listed seafarers’ unsafe behaviour as both immediate and root causes of accidents (Bhattacharya, 2012b: 14). These reports were substantiated by interviews where managers believed that they had to unilaterally manage safety because seafarers were not trusted to act safely. Such perceptions show a persistence of attitudes underlying the regulatory reforms of the 1970s and arguments advocating for self- regulation, where it was said that accidents were a result of apathy on the part of workers (and managers) (Chapter 2, Section 2.3).

Studies on the ISM Code show the negative consequences for OHSM of not including workers, such as mistrust of the system, under-reporting of incidents and a gap between its envisioned purpose and the realities of practice (Bhattacharya, 2012a; Bailey 2006; Anderson, 2003). By contrast, Anderson (2003) found that including seafarers in the development of the SMS, was important in gaining the necessary commitment to the system. In presenting a case study where seafarers were included in the process of developing and implementing the SMS to satisfy the ISM, it was found that those seafarers had a positive perception of the ISM and the SMS. Otherwise unilateral development of the safety system was met with resistance and complaints. In such instances, seafarers viewed the ISM and the attendant SMS as a tool for the shore-based company managers to pass on responsibility and blame to the crew (Bhattacharya, 2012a; Anderson, 2003).

Such outcomes should be unsurprising when one considers the rhetoric of the “human element” driving the thinking behind the ISM. Similar to the critique of self-regulation for land-based industries, those who developed the ISM Code, did not appear to have given adequate consideration to the structural and social issues on board, to make the ISM approach effective. This is perhaps wishful

thinking as the IMO is a technical body that developed a management standard by way of codifying existing voluntary management practices. Although there was some awareness of challenges in the work environment, and attempts were made to address them by providing for a “designated person ashore” (DPA)26 _{to support} seafarers in their work, this operates within the shipowners’ power structures. In the land-based literature, autonomous representation is supported in recognition of the need to have a countervailing force to management power (Walters and Nichols, 2013; Nichols, 1997). Seafarers’ “voice” at the IMO is greatly limited and at the time of the development of the ISM would have been more so.

Further, these mechanisms of the ISM Code do not address the broader political economic conditions driving work intensification and the imperatives of production that have been described for work at sea (Xue et. al. 2017; Walters and Bailey, 2013: 141-145). Nichols (1997) has demonstrated for land-based workers that such business imperatives contribute to workplace risks. Likewise, Nichols’ structures of vulnerability is applicable to what obtains at sea, as studies show that production has taken precedence over seafarers’ health and safety (Xue et. al., 2017; Kahveci and Nichols, 2006; Cutler and James, 1996).