Piloting vessels outside your CHA: Ken Pound

On 27th June 2017 many witnessed the departure of the aircraft carrier HMS Queen Elizabeth from Rosyth Dockyard, a pretty impressive sight as she passed through the lock gates into the Firth of Forth. The departure was only made possible under the conduct of three Forth Pilots. It was an extremely slick and trouble free act of pilotage or should this more correctly be called an act of navigation? The fact is the three pilots were not performing an act of pilotage within the meaning of the Pilot Act 1987 because Rosyth Dockyard does not enjoy Competent Harbour Authority status, it is a Statutory Harbour Authority.

Now what impact did this have on the pilot(s)? The Forth of Firth falls under Compulsory pilotage and therefore the pilot and the act of pilotageis protected under the Pilot Act along with Statutory limitation. The pilot(s) likewise enjoy the indemnity provided under the policy of insurance.However, any vessel navigating within a Statutory Harbour Authority (for example Rosyth Dockyard), the pilot or better the navigator ceases to enjoy the benefit of the Act and limitation, nor does the pilot enjoy the benefit
of insurance. There was a point at which the committee of The Association of Forth Pilots were steadfast in their refusal to commit the 3 pilots until the status of the pilot(s) was resolved and, until such times this was overcome the carrier was destined to remain trapped in the dockyard. The prospect of the vessel being trapped in the dockyard certainly engaged some lengthy dialogue between AFP and Rosyth Dockyard and finally agreement was reached that each party would enter into a legally binding contract which had the effect of absolving the pilot(s) from any liability whatsoever. The contract not only provided for the departure of the carrier but is now binding upon all and any traffic, naval or commercial, entering or departing Rosyth.

It might be considered AFP-Rosyth to be an exceptional circumstance – it is not. It is a problem that appears to be far more widespread than ever imagined. During the past 6 months or so it has been reported or discovered that the practice of pilotage undertaken beyond CHA port limits is quite common place. What is particularly alarming is the practice has been going on throughout the country for many years and in some instances with the blessing of the CHA and in a few instances with the blessing of
the CHA and the Pilot Association. In all fairness the majority of cases have been, in part, with the ignorance of the CHA and to the total ignorance of the Pilot Association. Ignorance, of course, offers no protection to the pilot.

It matters not whether these practices have been overlooked or ignored by a CHA’s and it is right to say they may have other agendas but it is vital to the UK pilot membership that all understand their own legal position should they engage in pilotage beyond the port limits. Not only do they forsake the benefit of the Pilot Act and the benefit of limitation they also forsake the benefit of indemnity provided under the policy of insurance. To put it in a nutshell they are pursuing a practice contrary to the provisions of the Act, a practice which is unlawful within the meaning of the Act and consequently avail themselves to personal liability should loss or damage result.

AFP–Rosyth is a perfect example of the potential risk to which a pilot is exposed and it is as well each pilot and his or her respective Association review and ensure that, if likewise they are engaging in acts of pilotage beyond the port limits, they too should seek a contractual remedy with the Statutory Harbour Authority.

These parties might well operate as a Trust port or as a Government authorised body such as the Canals and River Trust or as a commercial port where each may enjoy only Statutory Harbour Authority status. So, how can a pilot or pilot association protect their lawful status as a pilot? Simple, they cannot. The fact remains that at the moment a vessel departs the CHA port limits, he or she no longer is the pilot within the meaning of the Act, they become the navigator of the vessel and avail themselves to personal liability for loss or damage to the vessel, her crew and any third parties.

How then can the pilot seek protection? The options are few and of these few two are highly questionable. The SHA may offer to indemnify the pilot against loss or damage but this is a poor instrument as it can only offer a safeguard against loss or damage to owned and operated vessel(s), equipment or property of the SHA, it cannot indemnify a pilot for loss or damage to a third party vessel(s), equipment or property. A “hold harmless” has always been recognised as a more robust instrument but similarly this offers little more protection than an indemnity. The only instrument available that provides a pilot with fullest protection is a legally binding contract of service between a Pilot Association and the SHA.

If I were to offer any recommendation, I would urge all Pilot Associations who engage in this practice to seek a legal binding contractual remedy and if not cease navigating vessels beyond the port limits altogether.

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