APL Sydney: Another worrying case?

APL Sydney                            Photo: ATSB

As mentioned in my editorial, shore authorities nvestigating maritime incidents are seemingly blurring the delineation between civil & criminal law in seeking to condemn seafarers. Although this case hasn’t led to any criminal proceedings the following article, which has been collated from several press reports of this incident, suggests that pilots need to be very alert to this worrying trend.

In December 2008 a pilot was on board the APL Sydney when the decision was made to abort the berthing and the vessel was instructed to anchor in the Port Phillip Bay anchorage within the Melbourne compulsory pilotage district. With the weather deteriorating, the pilot left the ship before the vessel was fully brought up to the anchor and proceeded ashore. Shortly after anchoring, the APL Sydney started dragging the anchor towards a gas pipeline and, realising the danger, the Captain requested permission from the harbour authority to weigh anchor and move to a safer location in the anchorage.

The harbour authority refused to permit the ship to move without a pilot on board and instructed the Captain to wait for the pilot to return to the ship. By this time the pilot cutter was 45 minutes away from the vessel but turned round and returned to the anchorage with the pilot.

The vessel continued to drag anchor towards the gas pipeline but the harbour authority took no action. Shortly before the pilot re-boarded, the anchor fouled the pipeline and parts of the windlass shattered rendering it unusable. Once he boarded the vessel, the pilot ordered an ahead movement and suggested that the cable be cut. The ahead movement ruptured the pipeline which cut of the ethane supply from Esso’s Bass Strait gas field for four months.

Naturally, the lawyers are having a field day and at the time of writing the claims are approaching $70M and rising. With such a large claim it is inevitable that the actions of all involved are subjected to scrutiny. Referring to the ports actions, the judge criticised the port authority for not having an emergency plan to deal with a gas leak and, despite having been alerted to the risk by the Captain, stated that,  ”…the evidence does not reveal that harbour control took any active step for about 25 minutes to deal with the situation, far less to assist or facilitate the master taking steps to prevent the ship getting too close to the pipeline”.

With respect to the Captain, the judge has sympathised with his predicament at having been placed in a seemingly impossible position without support but hasn’t exonerated him stating that he should have ”ignored the refusal of harbour control at 15:07 to allow him to move the ship  and begun lifting anchor  then and there. It was the time to act. His instinctual reaction to the situation was correct. His primary responsibility was to ensure the safety of his ship, her crew and cargo and to prevent the anchor damaging the pipeline. I do not accept that he was absolved of his right and duty to exercise that responsibility by the unhelpful refusal of harbour control to give its permission”.

With respect to the pilot, the judge considered that his decision to leave the vessel before it was safely at anchor amounted to a breach of his obligations.

‘If anything went wrong with the anchoring, as it did in this case, the master [Xu] would be in the invidious position of potentially breaching the compulsory pilotage requirements of the Port of Melbourne were he to use the engines to manoeuvre the ship or attempt to re-anchor her,.

The judge found that when the pilot returned to the vessel his advice to put the engine ahead ”had no justification in the circumstances’‘ and he ”did not provide the master with the level of advice that a seafarer was entitled to expect from a person with an unlimited pilot’s licence for Port Phillip Bay”. The judge said both the pilot and Captain were ”negligent”.

These judgements are not final and will be subject to appeal and the case is still a civil rather than a criminal one. However, the case again highlights a worrying blurring of the difference between civil and criminal cases when it comes to shipping incidents.

In my opinion the harbour authority have been let off lightly by the judge because since this disaster happened in an area under their jurisdiction, the port control should have noticed that the ship was dragging, immediately recognised the potential risk and instructed the Captain to weigh anchor and move clear of the pipeline. Their decisions on that day are seemingly irresponsible as well as illogical! Despite this, the judge seemingly hasn’t found the port “negligent” along with the pilot and Captain! Whatever the reasoning behind the judgement, the fact that the pilot has been criminalised cannot now be ignored.  The actions of the pilot that day are recognisable as common practice in many ports and therefore serve as a warning that we must carefully review our procedures.


PS: since writing the original article the Australian Transport Safety Bureau (ATSB) have published their full report into the incident which can be accessed by clicking here

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