Safety Management System or a Checklist for Negligence?

The latest trend in regulatory schemes is performance based regulations. This type of regulation usually requires the regulated entity to come up with a plan or system which will meet the performance based criteria in the regulations, such as International Safety Management (ISM) and the impending towing vessel inspection regulations. Some organizations also require member companies to implement a Safety Management System (SMS), such as the American Waterways Operators (AWO) Responsible Carrier Program (RCP). Regardless of the source, not fully implementing and complying with these plans can have serious consequences in the event of an accident.A conversation I had with an attorney after a serious accident really drove home the importance of "saying what you do, and doing what you say." I discussed my concerns with some SMSs which can never be complied with due to the way they are written. I explained that some companies seem to have brainstormed with a bunch of "old salts" and come up with every possible thing that could ever go wrong during any one evolution. While this is never a bad idea and produces excellent training material, it was how the information was incorporated into the SMS which created the problem. After the comprehensive list had been compiled, it was entered into the SMS and labeled, "The following items must be checked prior to conducting the following evolution…." I explained that the problem I have found as an auditor is, despite the SMS mandating that the entire extensive comprehensive list be completed every time, the crewmembers can only explain the two or three items they actually check. The attorney was well aware of this problem and explained that is why a company's SMS manual can serve as a "checklist for negligence" during litigation.