LIABILITIES: Barrie Youde

June 30th, 2008 by JCB
Posted in Articles | No Comments »

Since I joined the pilotage service I have been in possession of a copy of the 1987 Pilotage Act and have occasionally attempted to examine the relevance of the clauses to a certain situation but not having a legal mind I fail to comprehend the “legalese”! The following is an edited version of an opinion on liabilities written by Barrie Youde for EMPA which provides important clarifications of civil and criminal liabilities of UK pilots. Ed.

Civil liability may be described as the liability of a civil wrongdoer (or tortfeasor) to pay a sum of money to any person who has suffered loss or damage in consequence of the civil wrong or tort which has been
done. Criminal liability is the liability of a criminal wrongdoer to pay a penalty to the public purse (a fine) or to serve a term of imprisonment in consequence of his crime. Save for the removal of a pilot’s professional
qualification (ie his authorisation or licence) there are no other penalties which apply in pilotage. The law of pilotage in the United Kingdom is governed almost entirely by statute law, namely the Pilotage Act of 1987
– and by its interpretation in the Courts. CIVIL LIABILITY The leading modern case in pilotage is Esso Petroleum v Hall Russell (The Esso Bernicia, 1989). The case was heard in the House of Lords and arose during the currency of the 1913 Pilotage Act. A vessel under pilotage caused damage to a berth when the head-tug lost all power. The pilot of the vessel was unique in that he was directly employed by his Competent Harbour Authority (CHA) at a time when all other UK pilots were selfemployed. The owner of the damaged berth claimed against the shipowner; and the shipowner in turn claimed liability vicariously against the CHA (in its capacity as the employer of the pilot) for the alleged negligence of the pilot, in appreciation of the obvious fact that the recovery of substantial damages against the (relatively wealthy) CHA was far more likely than the recovery of financial damages against the (relatively impecunious) pilot. The House of Lords conducted an extensive review of relevant pilotage law and found no liability against the Harbour Authority on the grounds that a pilot “is an independent professional man who navigates the ship as a principal and not as a servant of his general employer.” Following the introduction of the 1987 Pilotage Act, another challenge was made by a shipowner against a CHA in 1993 in respect of the negligence of an employed pilot. When under pilotage, the gas tanker Cavendish was in allision with a structure and suffered damage. The legal challenge was made in the Admiralty Court but was dismissed when the Court ruled that the provisions of the 1987 Act had not altered the relevant position as stated under the terms of the 1913 Act. Referring to the Esso Bernicia case, the Cavendish Judge observed (i) “No man can serve two masters”; and (ii) “the purport and effect of Section 2 [of the 1987 Act] was not to impose duties on CHAs to pilot ships but to require them to supply properly authorised pilots for ships.” It has therefore been established that when a pilot is navigating a ship, even if he is engaged by a contract of employment to his CHA, the CHA is not liable for any negligence of the pilot; for the simple reason that a pilot when navigating, “is an

independent professional” who cannot serve two masters at the same time. The law which governs this is Section 16 of the 1987 Act which provides that:- “The fact that a ship is being navigated in an area and in circumstances in which pilotage is compulsory for it shall not affect any liability of the owner or master of the ship for any loss or damage caused by the ship or by the manner in which it is navigated.” This establishes that, for all purposes connected with navigation, the pilot is the servant of the ship-owner and not the servant of the CHA and it is therefore extremely difficult to establish civil liability against a pilot in matters of civil negligence. A further particular difficulty for those who might wish to seek to recover civil damages from a pilot is Section 22(1) of the 1987 Act which provides that: “The liability of an authorised pilot for any loss or damage caused by any act or omission of his while acting as such a pilot shall not exceed £1,000 and the amount of the pilotage charges in respect of the voyage during which the liability arose.” In commercial ter s, £1,000 is not a sum which would be worth a legal fight. The combined effect of Section 16 of the 1987 Act and the two leading cases produce the result that, for a professional pilot, a
contract of employment with a CHA is superfluous and creates nothing other than a rod for his own back.

CRIMINAL LIABILITY

Fortunately it is rare for criminal liability to be established against a UK pilot. Liability does, however arise under Section 21 of the Act which provides:-
21(1) If the pilot of a ship-
(a) does any act which causes or is likely to cause the loss or destruction of, or serious damage to, the ship or its machinery, navigational or safety equipment, or the death of, or serious injury to a person on board the ship; or

(b) Omits to do anything required to preserve the ship or its machinery, navigational equipment or safety equipment from loss, destruction or serious damage or to preserve any person on board the ship from death or serious injury And the act or omission is deliberate or amounts to a breach or neglect of duty or he is under the influence of drink or a drug at the time of the act or omission, he shall be guilty of an offence.
Section 21(2) provides for a maximum penalty of two years imprisonment or an unlimited fine.
In a recent case the prosecuting authorities gave notice that they had it in mind to prosecute the pilot of a ship which had been in collision with a ferry under the command of a PEC holder. The ferry had suffered
much damage, fortunately without loss of life. It was then pointed out to the prosecuting authorities that although the ferry had suffered substantial damage, (a) The pilot had caused no loss or damage to his own ship and (b) Was not under the influence of drink or drugs. No prosecution was started. The incident
did, however, identify the fact that Section 21 applies only to a case where a pilot causes damage to his own ship, either deliberately or by drink or drugs. The Section does not apply to a pilot when a ship other than his
own suffers damage; and, rather more significantly, it does not apply to a PECholder at all. Shipmasters (including shipmaster-PEC holders) are of course subject to other legislation. An interesting criminal prosecution of a pilot did occur in 2002 under Section 15(2) of the Act. The pilot (who at the time was on

strike!) had been appointed to the command of a vessel which was about to transit his own compulsory pilotage area. The pilot/shipmaster reported to the CHA that he did not wish to engage another pilot, for the fairly obvious reason that his own pilotage qualification remained fully valid and he duly put to sea, performing his own pilotage. The CHA took a strict line and prosecuted the pilot/shipmaster for failing to
take a pilot when he was obliged to do so. At Court, on taking legal advice, the pilot/shipmaster pleaded guilty to the offence in the light of the statutory definition of a pilot which provides that “Pilot” means
“any person not belonging to ship who has the conduct thereof” and “pilotage” shall be construed accordingly. Because a master plainly “belongs” to his ship, this provision means that no man can
be both master and pilot of the ship at the same time. The penalty imposed by the Court was nominal and the CHA was obliged to pay an overwhelming portion of the costs of the prosecution.

CIVIL AND CRIMINAL LIABILITIES IN UK PILOTAGE
Since I joined the pilotage service I have been in possession of a copy of the 1987 Pilotage Act and have occasionally attempted to examine the relevance of the clauses to a certain situation but not having a legal mind I fail to comprehend the “legalese”! The following is an edited version of an opinion on liabilities written by Barrie Youde for EMPA which provides important clarifications of civil and criminal liabilities of UK pilots. Ed.