As a reaction to an increasing concern with the decreasing of standards in shipping during the 1970s and 1980s the International Maritime Organization adopted the ISM Code, which became mandatory in 1998. This study revisits the ISM Code, firstly exploring the genesis of the code at the international level, and then its operationalization at the national and local level. Based on a three-step case study, the interplay between the essence of the ISM Code and praxis onboard is explored. The study explores the distortion and erosion of the essence of the ISM Code when implemented on the national level in Danish law (step one) and by two Danishbased companies (step two) and finally investigates the local effect of the code as it is displayed onboard (step three).
The study is conducted as an applied socio-legal study; thus, it adopts both an internal (doctrinal) and an external (empirical) approach. It also combines the topdown and bottom-up perspective, consequently applying different methods to fit the content of the different levels examined, while maintaining a qualitative approach.
The research design is inspired by the hermeneutic circle. The first circle (Part I the international level) explores the genesis of the ISM Code, aim to explore the causal explanation for and to determine the essence of the ISM Code. The ‘essence’ is constituted by the ‘principles’ that the regulators intended to be essential to achieve ‘the purpose’. With Santos’s cartographic metaphor as a theoretical analytical framework combined with legal dogmatic method, the first part concentrates on small-scale legality (the international level). The second circle (Part II) is related to medium-scale legality (the national/transnational level). Part II explore the operationalisation of the ISM Code as it is implemented in Danish law, applying legal dogmatic method, combined with analyses of written formal communication to identify the inter-legality that distort the principles when implemented at a national level (step one and two). The third circle (Part III) relates to large-scale legality, applying Goffman’s theoretical framework to analyse the micro level, that constitute the onboard praxis. Praxis is compared with legislation, v revealing a frontstage behaviour that is compliant with regulation and documented by checklists, while in fact praxis deviate, ‘to make it work’ the crew exhibits what Goffman denoted a backstage behaviour.
The ISM Code introduces meta-regulation as a regulatory mechanism. Metaregulation is linked to Santos’s concept of globalization and governance matrix; the study applies Parker’s definition of meta-regulation and the triple loop to study the concept.
The study identifies three principles that constitute the essence of the ISM Code; (1) to establish a genuine link between the company and the flag State; (2) to ensure that the company becomes responsible for the ship’s operation; and (3) to empower the master, ensuring her or his authority. The analyses proved that each of the three principals were distorted at respectively meso and micro level, and that even though the intent was to promote good ship management, in reality it has provided companies the opportunity strut in borrowed plumes.