Criminality in the law of marine pilotage: Barrie Youde

January 26th, 2017 by JCB
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The criminal law has a significant role in the law of marine pilotage, largely because the statute law of pilotage permits the public imposition of compulsory pilotage upon certain vessels in certain areas. It is only the statute law which permits any such imposition; and wherever it does not do so the general international liberty of navigation applies. As a matter of propriety, there is also a public quid pro quo at common law that the highest possible standards are called for wherever pilotage is compulsory (the Sea Empress, 1999), which is fully supported and endorsed by the provisions of the Pilotage Act 1987.

Section 15 of that Act imposes criminal liability upon a shipmaster who might fail to engage the services of an authorised pilot when such services are offered; and Section 17 imposes criminal liability on any unqualified person who might conduct pilotage after an authorised pilot has offered his services. Sections 18 and 19 impose further criminal liability on a shipmaster who might find himself in default; and Section 20 of the Act recites a series of criminal offences which might be committed by an authorised pilot, with imprisonment attaching in default. Overall, Section 2 of the Act imposes upon a Competent Harbour Authority (CHA) the statutory duty to “keep under consideration” relevant matters relating to compulsory pilotage. Very clearly, the CHA is obliged to keep under consideration the statutory criminal provisions outlined above, and has a public function to apply them properly. In the case of a breach of any of the provisions mentioned, it is the function of the CHA to place a prosecution into the Courts. There have been numerous prosecutions under Section 15 or its earlier statutory equivalents, all of which have been put into the Courts either by the Competent Harbour Authorities or their predecessors,
the local Pilotage Authorities.

It follows, likewise, that a CHA today is bound by the same criminal laws. If a CHA might fail to take every proper step to maintain a proper pilotage service it is liable to find itself in breach of both the common law and its Section 2 duty to keep matters under consideration. These obligations are further upheld by the Wednesbury principles of reasonableness as established in the Court of Appeal in 1948. It seems to follow quite clearly, therefore, that criminal liability would attach to any CHA which might provide to a ship an unqualified or under-qualified pilot when a qualified pilot is ready, willing and able to serve and has offered his services. This would be particularly so if the CHA were then to levy a financial charge against the ship in the same circumstances. Such an event is not unknown but has yet to be placed before the Court. The civil law has, however, found very clearly that it is the duty of the CHA to provide to any ship a properly qualified pilot on request (the Cavendish, 1993). Very clearly, a CHA is heavily burdened with public responsibility and public trust. Many CHAs (particularly at the major ports) operate also (at the same time and from the same premises) as commercial bodies and there is therefore a major public concern to ensure the propriety of their activities.

This was reflected in the House of Commons Select Committee on Transport Report on Marine Pilotage published on 7^th March 2013.

Much legality necessarily takes second place behind public safety. Where, however, any breach of public safety occurs, the relevant laws are then of strict application. This is recognised in the Report of the Department of Transport, Local Government and the Regions (“The New Humber Pilot Service” – April 2002) at Paragraph 10.9 thereof. The laws of pilotage are laws of public safety. They exist for no other reason. It should be noted that the power given under Section 2 of the Act to impose compulsory pilotage anywhere is restricted to the imposition on the grounds of safety alone. There is no other justification or warrant for the imposition of
the obligation.

It is also to be noted that although pilotage enjoys an ancient and venerable position at law, all of the authorities cited above are of modern legal application, the oldest being the Wednesbury case of 1948. Many people dismiss the occupation of pilotage as something quaint, picturesque, romantic, historic and otherwise little known; and not of any real modern concern. The Pilotage Act of 1987 declares otherwise.