Scope of the ISM Code under EU Regulation 336/2006 and the order of the exclusion test

Say a general cargo ship under the Panamanian flag runs between two Member State ports on a fixed weekly pattern. The flag is not that of a Member State, and the voyages are international. Does the ISM Code bind this ship and the company operating it. Does the answer change if the ship is under 500 gross tonnage.

SOLAS applies the ISM Code to ships engaged on international voyages. EU Regulation 336/2006 did not leave that line where it was. On one side it extends the reach to domestic voyages and regular shipping services. On the other it names the ships that fall out. The extended list and the exclusion list sit side by side inside Article 3.

So testing a ship for scope is an ordered task. First check whether it lands on the extended list, and once it does, check whether its name appears on the exclusion list. Run the two lists in the wrong order and some ships come out the other way.

Article 3 names the ships and the companies operating them together

1. This Regulation shall apply to the following types of ships and to companies operating them: (a) cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages;

The opening sentence names two addressees: types of ships, and the companies operating them. Once a ship lands on the list, the company lands with it. That structure carries through to Articles 4 and 5.

Point (a) restates the ground SOLAS already covers. A Member State flag and international voyages. Both conditions have to hold, so on this point alone the Panamanian ship above stays outside.

Domestic voyages and regular services come in without any question of flag

(b) cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag; (c) cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag; (d) mobile offshore drilling units operating under the authority of a Member State.

Point (b) is cargo ships and passenger ships on domestic voyages only. The condition is exclusively on domestic voyages and the flag is regardless of their flag. The international voyage threshold is gone here.

Point (c) is ships running to and from Member State ports on a fixed service. Flag is not asked here either. The one condition attached is regular shipping service. This is the point that catches the Panamanian ship above.

Point (d) is mobile offshore drilling units operated under the authority of a Member State. It asks about authority, not about flag.

Read the three points together and what the EU did becomes visible. It drops the international voyage threshold and replaces it with three points of contact with a Member State: domestic voyages, a regular service, and the authority of a Member State.

The exclusion list cuts back into what the previous paragraph widened

2. This Regulation shall not apply to the following types of ships or to the companies operating them: (a) ships of war and troopships and other ships owned or operated by a Member State and used only on government non-commercial service; (b) ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes; (c) fishing vessels; (d) cargo ships and mobile offshore drilling units of less than 500 gross tonnage; (e) passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18/EC.

The exclusion cuts off the whole Regulation, because the sentence reads This Regulation shall not apply. A ship named on that list never reaches Articles 4 to 6 either.

Two of the five entries carry a condition that lifts the exclusion again.

Ship excluded	Condition that lifts the exclusion
Ships of war and troopships, and ships owned or operated by a Member State on government non-commercial service	None
Ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and craft	The exclusion lifts once they are crewed and carry more than 12 passengers for commercial purposes
Fishing vessels	None
Cargo ships and mobile offshore drilling units under 500 gross tonnage	None
Passenger ships in sea areas of Class C and D	Ro-ro passenger ferries do not fall out through this entry

Tonnage takes one kind of ship out and sea area takes another

Point (d) of the exclusion list names cargo ships and mobile offshore drilling units only. Passenger ships are not on that line. However small the tonnage, a passenger ship does not fall out on tonnage.

The line that takes passenger ships out is (e), and what it asks about is not tonnage. It asks about sea area class and about whether the ship is a ro-ro passenger ferry. Passenger ships in sea areas of Class C and D fall out, and ro-ro passenger ferries climb back out of that exclusion.

Run the Panamanian ship through the order and it ends like this. It lands on the list through paragraph 1 point (c). Under paragraph 2 it is neither a fishing vessel nor a ship of war. At 500 gross tonnage or above it is not caught by (d) either, so it is inside the Regulation. Under 500 gross tonnage, (d) takes cargo ships out and it is outside. The same route at the same interval splits on one line about tonnage.

Part A binds the company and Part B binds the Member State

Member States shall ensure that all companies operating ships falling within the scope of this Regulation comply with the provisions of this Regulation.

Article 4 puts the duty to secure compliance on the Member State. Enforcement reaching a company comes through the Member State.

The ships referred to in Article 3(1) and the companies operating them shall comply with the requirements of Part A of the ISM Code.

What Article 5 points at is Article 3 paragraph 1, not paragraph 2. The exclusion list cuts off the Regulation as a whole, so a ship on that list never arrives at Article 5 in the first place.

For the purposes of certification and verification, Member States shall comply with the provisions of Part B of the ISM Code.

The addressee of the duty changes here. Part A of the ISM Code is kept by the ship and the company. Part B of the ISM Code is kept by the Member State. The procedure for issuing certificates and verifying them is not something a company selects but something a Member State follows.

Worth confirming

The passages above come from Articles 3 to 6 of the consolidated text of this Regulation. What the provisions settle is which ships land on the list and which fall out. Below that line, the answer moves to other documents.

• What counts as a regular shipping service is not defined inside these four articles.
• How far Class C and D sea areas reach along a given Member State coast is filled in by Article 4 of Directive 98/18/EC and by that State’s designation of sea areas.
• The text of Part A and Part B of the ISM Code is amended by IMO resolutions. The requirements actually binding a ship depend on the version this Regulation refers to.
• Which drilling units operate under the authority of a Member State under point (d) also moves to Member State practice.