Editorial 07/05

July 15th, 2005 by JCB
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EDITORIAL

At the time of writing this editorial the EU is in turmoil following the rejection of the proposed constitution. Having been over in France at the time the electorate decided “Non” it was interesting to note that almost immediately the unelected and unaccountable Commissioners decided that because the vote had not gone as anticipated then it should be ignored and that ratification should continue regardless! This arrogant attitude reveals the detachment of the Commissioners from the reality of the situation that many of the arguments that convinced the French and Dutch to vote against the constitution were based on concerns that the Commissioners were becoming too powerful and ignoring fundamental democratic principles.

For pilots such rejection of democracy has been in evidence since the MEPs and

the EU Parliament overwhelmingly rejected the Ports Directive and the

Commissioners decided to ignore the reasoning and re-introduce it again virtually unchanged as PP2 in anticipation that they would be able to force it through with the votes from the new member States. Fortunately the “No” vote has resulted in such antics being exposed to greater scrutiny and there are signs that in the face of potentially damaging headlines over threatened strike action in EU ports, when the Directive was re-submitted on the 15^th June, the Commissioners decided that the imperative need for this directive may not be so pressing after all and have accepted in principle that member states are best placed to decide their ports’ policy!

The UKMPA as part of the EMPA lobby group were present in Brussels and the safety arguments against PP2 have been coherently presented and should this directive be finally buried then your subscriptions will have helped to defeat the greatest threat to pilots’ livelihoods since the 1987 Pilotage Act.

John Clandillon-Baker

Following my April 2005 editorial, I received some feedback questioning the validity and accuracy of my statement regarding the out of court settlement between Milford Haven and the International Oil Protection Compensation Fund 1971. Although I

am a volunteer editor with a zero research budget (cue for sympathetic violins!) I do try to ensure accuracy and in this case the source of the information was a press release from the IOPCF which can be read (and is well worth reading!) in full at the

following web address:

www.iopcfund.org/pr-pdf/sea_empress.pdf

Editorial 04/05

April 15th, 2005 by JCB
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EDITORIAL

As all pilots know there are frequently occasions where a pilotage act is undertaken which utilises all the skills and experience accrued during a pilot’s career.  I recently undertook such an act and whilst unwinding after its successful conclusion there were two key elements that occurred to me. Firstly, having transited the approach channel constantly adjusting for leeway of between 4 and 8 degrees depending on wind gusts and also passing other vessels at close range this transit underlined what all pilots know in that such a passage would be impossible to conduct from a VTS centre no matter how sophisticated the equipment or how experienced the VTS operator might be.  The other point was to question why on earth the shipping and ports representatives are putting up such a strong resistance to the incorporation of pilotage qualifications and standards into the PMSC. Under BPIT, pilots produced the necessary National Occupational Standards and all that is required is for these to be formally integrated into the Code. With the insurers highlighting the escalating level of claims allegedly resulting from pilot error (see page 10) one would expect that ports and shipowners would wish to ensure that pilots are recruited and trained to the highest standards especially since it was only through an out of court settlement that Milford Haven avoided a court action brought by the Oil Pollution Compensation Fund for failing to train the pilot of the Sea Empress to an acceptable standard of competence. Regrettably the risks of another major pilotage incident in a UK port are seemingly being trivialised. With the pilot standards document effectively shelved by the apparently dormant port run body of Port Skills and Safety Ltd. (PSSL) there now also appears to be a growing movement to kill off the Education, Training, Certification & Standards (ETCS) programme for maritime pilots currently running in Europe. The old insurance adage of “if you think safety is expensive, try having an accident” has never been more relevant!

Editorial 01/05

January 15th, 2005 by JCB
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EDITORIAL

During a time normally reserved for festivities, the end of 2004 and the opening of 2005 was a tragic period with distressing images of death and destruction from Asia (and perhaps we should not forget Iraq) severely dampening the holiday mood. Our thoughts are with all those who may have suffered the loss of family or close friends.  In the world of pilotage the end of 2004 saw the decision by the unelected EU commissioners overturn the democratic vote of the Parliament and permit the outgoing transport commissioner Loyola de Palacio to reintroduce the previously rejected Ports Directive. The fight against this has already begun but the EU enlargement may mean that this is going to be a more difficult battle to win this time around. At least in this uphill battle we are supported by the UK Major Ports Group who are also vehemently opposed to the directive.

In the UK the Reviews of the Port Marine Safety Code and the 1987 Pilotage Act continue with the UKMPA representing the interests of pilots with the new team at the DfT. The MCA in its new role as the operational arm of the DfT in matters concerning maritime safety are also now involved.

Following the success of my decision last year to make the January issue the conference issue, this will now become a regular feature even though it means that I have to spend Christmas transcribing the conference tapes!!

Already, following the conference, there are indications that there is going to be resistance from the ports, not just in against legislation that may underpin the PMSC or the 1987 Act but also to the incorporation of pilotage standards into the Code. All the above topics are dealt with in detail in the magazine with latest news updates. 2005 is going to be another very challenging year for the Association so all members should pay careful attention to the debates.

Editorial 10/04

October 15th, 2004 by JCB
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EDITORIAL

Reading press releases and browsing through maritime journals it is easy to gain the impression that every new vessel is fitted out with the latest in hi-tech systems and equipment but as any pilot knows this image is totally false and thus dangerously deceptive. Regrettably, these images are those that are seen by the armchair “experts” who question why a pilot is needed in addition to this apparent seamless interface between the crew and their ship. The reality of this false image was brought home to me the other day whilst piloting a new 40,000 dwt tanker.  Built in Korea the bridge layout was indistinguishable from a wheelhouse from the 1970s with the row of pale green instrument over the top of the central bridge windows and the helm indicator directly over the top of the pilot conning position between the “standard” console and the central gyro repeater on the bridge front. We are all familiar with the contortions required by this layout to verify that engine and helm orders are being correctly executed and of course the wheelhouse contained none of the exciting integrated products and even the daylight (green on black invisible in sunlight) radars were housed in the traditional green casings!

This traditional design had also encompassed the deck machinery where half the required moorings had to be secured by turning up on the bitts. The mooring was handled by one officer and two crewmen (apparently legal manning) each end resulting in the operation taking 11/2 hours! Thirty years ago there would

have been an officer plus 6-8 men and the same operation would have taken one third of the time. This is a major problem for pilots since during mooring and unmooring we have to hold the vessel in position on the berth, often in strong winds and tide.  Such a situation is always inherently dangerous since even a minor error can result in damage, injury or death and this minimum manning vastly enhances the risks. We all know that such vessels have filing cabinets full of compliance documentation to reassure all the inspectors and armchair wallahs but in the event of an accident the Master and pilot will be subjected to an intense interrogation and will inevitably found to have done something wrong and most alarming is the increasing tendency to bring criminal charges against seafarers. The impact of minimum manning on pilots will not be addressed and their value will continue to be undervalued unless we continue to raise issues such as this at the highest levels.  Despite progress being slow there is evidence that the campaigning by the UKMPA, EMPA and IMPA is now changing opinions. Membership of the UKMPA ensures that your concerns are not only heard but also effectively raised at national and international fora and its insurances also ensure that pilots are fully supported should the unthinkable happen.

John Clandillon-Baker

Editorial 08/04

August 15th, 2004 by JCB
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EDITORIAL

In June I attended a Nautical Institute Seminar in Bristol entitled the Master/Pilot Relationship: A training need? Organised by Bristol pilot Avald Wymark it brought together a full spectrum of maritime experts to explore various problem areas of the Master pilot relationship. The seminar con.rmed what most of us are aware of in that the law covering pilotage is far from clear cut. The seminar explored typical scenarios where the Master/Pilot relationship may become strained and the outcome from the legal and P&I clubs was very informative. The most interesting fact to emerge was that in the case when damage is done whilst manoeuvring with a pilot embarked. Both the legal and P&I Club representatives present con.rmed that when it came to apportioning blame there was no real interest in who was responsible for the damage since the P&I Club picked up the bill regardless of who caused it. This has long been of concern to pilotage organisations since when the Master submits a report following damage in pilotage waters, human nature dictates that he will naturally blame the pilot and this obviously distorts the statistics! P&I Clubs are publishing statistics revealing that “pilot error” is responsible for 30% of port damage claims and expressing deep concern at the escalating costs of each claim and statistics are being used by the anti-pilot lobby to depict us as an unnecessary and expensive (even dangerous!) accessory to the bridge team. IMPA has calculated that a more accurate .gure is 7%-10% which is a vast difference. However, care is needed in challenging the status quo since one of the reasons that the P&I Clubs don’t feel the need to delve too deeply into apportioning blame is a result of the limitation of liability covering pilots. This historical limitation is also starting to be questioned and indeed challenged and there is an increasing lobby to get the legalities covering pilots “modernised”. The Master/Pilot relationship is therefore a debate that pilots need to be fully involved with.

Editorial 04/04

April 1st, 2004 by JCB
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The last few years has seen an increasing tendency to criminalise the mariner and pilots should be aware of the latest piece of legislation to be slipped quietly in by the Government which makes “professional mariners” subject to the same alcohol limits as drivers. As of 30th March 2004 “professional mariners” will be declared over the limit if they have more than 80 milligrams of alcohol in 100 millilitres of blood. The testing regime is also the same as on the road which means that the police will be able to use the same equipment and follow the same procedures as they do with motorists.
The announcement means that the Government is fulfilling its pledge to implement Lord Justice Clarke’s recommendation in his report into the Marchioness disaster to introduce alcohol limits and tests for mariners. Marine officials have been given powers to detain vessels pending the arrival of the police if they have reason to suspect that an offence is being committed. In order that all may be clear as to whom the regulations apply the official DfT press release states: “The law will apply to professional mariners on UK registered vessels around the globe and to those serving on foreign vessels while in UK waters and on un-registered vessels in UK waters”. An early indicator that police and Magistrates will impose maximum penalties on mariners was revealed prior to the legislation being introduced when the Master of the dredger Donald Redford, which collided with Hythe pier in Southampton Water, was charged under the Merchant Shipping Act for the offence of conduct endangering ships, structures and individuals. In that case the Master was found to be 2.5 times over the road drivers’ limit and was sentenced to two eight month custodial terms to run concurrently which is a very severe penalty rarely, if ever, imposed on similarly “over the limit” road drivers involved in non fatal accidents. All pilots should therefore be fully aware of the implications of the new legislation and this court case which means that if a pilot is involved in any notifiable incident he will be arrested by the police, breathalysed and judged in court rather than the matter being dealt with internally by their CHA. You have been warned!
PS The legislation currently only applies to professional mariners. However there are plans to extend the legislation to leisure users as well but in this case the DfT are undertaking a consultation process and details are available on the DfT website (consultation) at: www.dft.gov.uk

John Clandillon-Baker

Editorial 01/04

January 15th, 2004 by JCB
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UKMPA Chairman Norman McKinney Retires

UKMPA Chairman Norman McKinney stood down as Chairman in November at the Liverpool Conference following a sixyear term at the helm. He is replaced by Les Cate who was duly elected unopposed at the Conference. It is appropriate here to pay tribute to Norman’s achievements as Chairman during a term that has probably seen more problems and upheavals than any other period in our association’s history. In November 1997 when Norman was elected, the public image of pilots was at rock bottom following the negative press coverage over the Sea Empress grounding.  He was thrown into the deep end by the new Labour Government’s decision to undertake a review of the 1987 Pilotage Act which resulted directly from the Sea Empress disaster. During the next three years Norman gained the respect of the DfT and this was reflected by the considerable influence that the UKMPA was able to have over the production of the Port Marine Safety Code. However, despite this respect, many pilots will have forgotten how, during the drafting process, other interested parties attempted to water down the safety and accountability content of the Code.  Reviewing all these drafts with their subtle amendments provided hours of painstaking reading by all the Section committee but it was Norman’s refusal to be brow beaten that provided the necessary stimulus to all those involved. Unfortunately, possibly as a result of industry lobbying, the government apeared to lose interest in underpinning the PMSC with legislation after its publication and Norman suffered the frustration of seeing much valuable work on pilot standards, training and qualifications sidelined with the demise of the British Ports Industry Training (BPIT) group. The Humber dispute provided a double challenge for Norman’s leadership. Despite the dispute initially being handled internally by HPL members, it immediately set the DfT against the UKMPA whose support for HPL resulted in an overt support for the employers position by the supposedly neutral DfT officials. Regrettably the subsequent requirement for full T&G and UKMPA involvement on behalf of HPL caused a total breach in contact with the Department. Despite this hostile atmosphere Norman realised the importance of maintaining relations with the DfT and sought meetings with them and the shipping minister in order that other outstanding items could be dealt with. It is a credit to Norman that after two difficult years, contact with the Minister and DfT has been re-established and the UKMPA is now in a position to move forward on amending the 1987 Act under the leadership of Les Cate.

As if this was not sufficient turmoil for a Chairman, Norman also had to deal with the EU Ports Directive which, by considering pilotage as a commercial operation, was set to introduce competition into pilotage. The intense lobbying of MEPs by Norman, Simon Davey and Les Cate in support of the EMPA opposition campaign eventually led to the Directive being rejected by the European Parliament.  This was a significant victory since it represented the first occasion whereby a directive had been totally thrown out in the history of the EU.

All these were the major battles dealt with by Norman during his Chairmanship

but excludes the considerable everyday, behind the scenes dealings, which although largely unacknowledged have served to raise the profile of the UKMPA and enhance its reputation as a professional organisation. I am sure that you will all join me in wishing Norman a long, happy and relaxing retirement.

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.