Politicians Fail on Pilotage : Barrie Youde

November 6th, 2011 by JCB
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Questions are now being asked in Parliament as to whether Her Majesty’s government is fulfilling its duty to uphold the laws of pilotage. The questions might well be asked: ‘What on earth has happened to bring about such a state of affairs? Doesn’t the Department for Transport uphold maritime law automatically?’Let us see…

The law of UK pilotage is governed almost entirely by statute -namely the Pilotage Act of 1987. This is but the latest in a series of statutes (or Acts) which have been maintained since the 18th century and before.

In saying that, pilotage is governed almost entirely by statute law but ‘almost’ is, however, a big word. In the case of any parliamentary statute, due interpretation of the precise words set out in the Act is a matter for  the courts.

The introduction of the Act of 1987 brought sweeping changes in pilotage law, while at the same time altering nothing in the Master /pilot relationship. Most of the changes related to shore based administration which is where present concerns lie.

An indication that little, if anything, has changed on the bridge of a ship is found in a study of two leading cases. The first is the Esso Bernicia ,which was heard in the House of Lords in 1988. The facts of the case had arisen as far back as December 1978 -long before the 1987 Act had been conceived -and the case was therefore considered under the Pilotage Act of 1913, which was subsumed temporarily into an Act of 1983 and finally repealed altogether on the enactment of the 1987 Act in October 1988.

The case involved an inward bound tanker under compulsory pilotage with three tugs in attendance. The pilot was, unusually at the time, an employee of the harbour authority. One tug caught fire and her tow-rope was cast off. In consequence, the vessel, instead of berthing safely, struck the berth for which she was making. Damage was caused to both the vessel and the berth.

The shipowners pursued the builders of the tug (alleging a design fault therein). The tug builders sought to hold the harbour authority vicariously liable for the alleged negligence of the pilot. ‘Not so’, said the House of Lords. It was held that even where a pilot might serve under a contract of employment with a harbour authority, the 1913 Act held that a pilot serves a ship as an independent professional who acts as a principal and not as the servant or agent of any general employer; and the harbour authority was therefore not liable for the negligence (if any) of the pilot.

Come 1993, a new case had arisen, namely the Cavendish, in which shipowners sought to hold a harbour authority liable for the negligence of an employed pilot, claiming that the introduction of the 1987 Act had changed the legal position. Owners claimed that because the new Act obliged a harbour authority (for the first time) to offer terms of employment to a pilot, the usual terms of vicarious liability applicable to any employer should now apply in pilotage. Not so, said Mr Justice Anthony Clarke in the High Court. The new Act alters nothing. A pilot remains an independent principal by virtue of the fact that, when engaged in piloting, he serves the ship first and foremost: and (in express terms) no man can serve two masters. (St Matthew, Chapter 6 verse 24.) This rather begs the question of why any pilot should accept the burden of a contract of employment with a harbour authority.

1996 saw the Sea Empress disaster at Milford Haven and the subsequent criminal prosecution of the harbour authority for the pollution of a waterway. The Pilotage Act was considered in great detail, and the harbour authority pleaded guilty to the charge which was before the court in 1999.

The presiding judge of the Admiralty Court (when passing sentence) made the following observations of principle:

‘The significance of these matters is all the greater in the context of a scheme of compulsory pilotage. Shipowners and masters must needs take a pilot. They have to take the training, experience and expertise of the pilot provided at face value. While the master remains nominally in command it has to be accepted that the pilot had the “con” and a master can only intervene when a situation of danger has clearly arisen. The port authority imposes a charge for pilotage but in the same breath has the added advantage of the pilot being treated for purposes of civil liability as an employee of the shipowner. All this calls for the highest possible standards on the part of the port authority.’

It might therefore be thought that the Sea Empress principle (which was acknowledged with approval in the Court of Appeal in April 2000, even though the level of fine upon the harbour authority was reduced substantially) would act as a wake-up call to all harbour authorities, particularly in compulsory pilotage areas. Unfortunately not, which is where the present concerns germinate.

The following year, in June 2001, a harbour authority in a compulsory  pilotage area  gave notice of disqualification to all of its authorised pilots, without exception, to be effective within less than eight months. Regulated standards of experience required at the port prior to qualification for the pilotage of ships of unlimited tonnage were measured (as at most major ports, including Milford Haven) in terms of four years or more and compliance with the regulated standards by replacement pilots within the few months available would clearly be a chronological impossibility. Did the Department for Transport (DfT) intervene in order to uphold the Sea Empress ‘highest possible standards’ in compulsory pilotage areas principle, identified so recently? Er, no. It did not.

In 2003 the International Maritime Organisation (to which the UK is a Signatory) adopted Resolution A960, which provided that in pilotage matters signatory States should ‘enforce the maintenance of developed standards’. Has the DfT yet done so? Answer: No, it has not. A representative of the Department has, however, admitted that if a little more pressure is applied, then it might be moved to intervene in the name of propriety and sanity. And that, dear readers, is the reason why questions are today being asked in the House.

This article has been edited from one which first appeared in the June issue of the Nautilus “Telegraph” and is reproduced with their kind permission.

Barrie Youde is a former Liverpool pilot who is now a specialist pilotage Lawyer. He has undertaken work for the UKMPA and Circle Insurance on behalf of members.

Note: The opinions expressed in this article are those of the author and may not necessarily reflect those of the UKMPA.