EDITORIAL 10/03

October 15th, 2003 by JCB
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One of the lessons learned by pilots following the 1987 Pilotage Act is that wording is all important in drawing up legislation and if the text is not exact then an ambiguity can arise that can effectively render the legislation worthless. Since 1987 there have been many examples of how such ambiguity has worked against pilots’ interests and the Port Marine Safety Code was introduced to provide some form of  acountability of CHAs to the Secretary of State. Whilst undertaking the Review of the 1987 Act the DfT recognised the need to draw up a new Pilotage Act to provide this missing accountability and to underpin the PMSC.
Regrettably the proposed legislation is not planned for this Parliament and seems to have been quietly dropped from the Government’s agenda. However, changes have been made to the 1987 Act in order to bring the Act into compliance with EU legislation on recognition of qualifications. This amendment was incorporated into the Act on 30th May this year and whilst on the surface it appears to be a straightforward administrative amendment upon closer scrutiny it appears to grant CHAs the powers to recruit non UK pilots from the EU without any formal qualifications whatsoever! It takes a legal mind to analyse such documents and the implications of the amendments have been brought to my attention by Kevin Austin, ex Humber Pilot and now of City law firm Constant & Constant. In Kevin’s opinion the new amendment not only opens the door for recruitment of cheap pilotage personnel from the enlarged EU but also grants CHAs the right to employ unqualified pilots from the EU but not from the UK!! The final irony is that the legislation would now appear to grant the right of appeal to the Secretary of State to an unqualified EU pilot applicant whose application is rejected by a CHA on the grounds that he is insufficiently qualified. There is no right of appeal available to qualified UK serving pilots even if they are de-authorised by a CHA! The statement that “imperfect legislation generates legal nihilism” is most appropriate!

Kevin Austin’s legal interpretation is reproduced below                     John Clandillon-Baker

LEGAL OPINION: The Pilotage (Recognition of Qualifications and Experience) Regulations 2003

 Statutory Instrument 2003/1230 establishes a framework for the recognition of European pilots qualifications and experience by UK Competent Harbour Authorities (CHAs), by amendment of the Pilotage Act 1987. A new schedule (A1) appears in the Pilotage Act which explains the procedure to be adopted by CHAs in determining whether an applicant for appointment as a UK pilot has the relevant qualifications and/or experience.

Qualified Applicants – Applicants’ rights, CHAs discretion

Section 2 applies where a CHA has determined a requirement for its pilots to have some formal qualification (for example a UK Master’s Certificate of Competency). As this is the case in practically all CHAs, section 2 is likely to be the most commonly relied upon provision. Under this section a CHA is required to compare an applicant’s European qualification against the Authority’s UK qualification benchmark. Section ((2(2)) is uncontroversial and deals with the case where the applicant’s qualifications correspond to or exceed the required level. In these circumstances the CHA is prevented from refusing to authorise the applicant, (or refusing to consider his application) simply on the basis that he does not hold the required formal qualifications. Simply stated, and with the advent of STCW, somewhat obviously, a CHA has to recognise a Class 1 Certificate issued in any European country as being equivalent to the UK version. The applicant may, however, still be refused authorisation by the relevant CHA if he fails to complete the required training programme, is unsuccessful in the examinations or is otherwise deemed by the CHA not to be suitably qualified to act as a pilot. Section 2(3) is rather more contentious, providing that where the applicant’s formal qualifications show a level of knowledge and skill substantially below the level required by the authority (say a Class 2 rather than a Class 1), the CHA is required to allow the applicant to undergo an adaptation period or an aptitude test to demonstrate that he has acquired the knowledge and skills which were lacking. The following points are of note:

_ The Schedule uses mandatory not discretionary language (“shall” not “may”) granting the applicant a

right to an adaptation period/test.

_ The Schedule does not specify a minimum or maximum period for adaptation, and one must assume

that it is for the CHA to determine under their statutory

powers conferred by Section 3 of the Pilotage Act. _ This Section’s reference to the applicant’s level of

knowledge and skill being “substantially” below that required by the authority implies that there is no

minimum standard of qualification envisaged.

_ The Schedule only appears to require a CHA to facilitate adaptation or a test. No doubt the CHAs will

have noticed there is nothing in the Schedule, which imposes a requirement for them to pay for these

facilities.