The maritime pilot: untouchable no more?

The article below was originally published by Bob Couttie in http://maritimeaccident.org/2010/02/05/paying-the-pilot/#more-6510 under the title “Paying for The Perilous Pilot”. I reproduce it here because I believe there are important issues in the text that need further debate and deserve more awareness from the maritime industry — some of them I will write about pretty soon.

For now, let Couttie speak:

Thou­sands of acts of pilotage are car­ried out every year with­out a prob­lem but who pays his or her lawyers on the odd occa­sion when some­thing does go wrong? In Cal­i­for­nia and Ore­gon, appar­ently, it’s the owner of the ship.

One of MAC’s favourite legal eagles, Denis Bryant reports on his blog:

 “The US Dis­trict Court for the North­ern Dis­trict of Cal­i­for­nia ruled that a state statute immu­niz­ing pilots from lia­bil­ity for dam­ages caused by their neg­li­gence in pilot­ing ves­sels is not pre­empted by fed­eral law. In the instant case, the insur­ance com­pany that ini­tially appointed defense coun­sel for the pilot on the Cosco Busan when it allided with a pier of the San Francisco-Oakland Bay Bridge on Novem­ber 7, 2007 brought suit against the pilot, ship owner, and oth­ers to recover its expenditures.

“The insur­ance com­pany moved for par­tial sum­mary judg­ment on its right to recover, rely­ing on a Cal­i­for­nia statute which pro­vides that a ves­sel shall either pur­chase trip insur­ance from the pilot or defend, indem­nify, and hold harm­less the pilot if an acci­dent occurs due to the pilot’s neg­li­gence. The ship owner and oth­ers opposed the motion, con­tend­ing that that the Cal­i­for­nia statute is pre­empted by fed­eral mar­itime law. The court rejected the ship owner’s argu­ment, find­ing that fed­eral law grants states broad author­ity over state pilotage mat­ters. Con­ti­nen­tal Insur­ance Co. v. Cota, No. 08–2052 SC (N.D. Cal., Jan­u­ary 27, 2010). Note: This deci­sion was brought to my atten­tion by my friend Charles M. Davis.”

So, you have to pay to defend the com­pul­sory pilot who bumped your boat, along with all the other stick.  You might mut­ter: “Well, of course it’s to mas­ters orders on pilot’s advice…” but read this thought-provoking extract of a rather thought­ful arti­cle on the Inter­na­tional Pilots Asso­ci­a­tion web­site, by George A. Quick:

“Con­fus­ing the issue on checks and bal­ances in the rela­tion­ship is the mis­taken per­cep­tion that the pilot is aboard in an advi­sory capac­ity. This is not true in actual prac­tice in pilotage waters or in the law as applied in North Amer­ica. The pilot “con­duct­ing” the ship gives all the direc­tions con­cern­ing the ships move­ment and it is the mas­ter who may advise the pilot as to the capa­bil­i­ties of the ship or its equip­ment or crew. If the mas­ter was actu­ally giv­ing the direc­tions with the pilot’s advice the ship would not be under pilotage and in com­pli­ance with the local laws.

”The dis­tinc­tion is impor­tant because if the pilot were merely an advi­sor whose assess­ment could be accepted or rejected at will he could not ful­fil his role as an inde­pen­dent judge of accept­able risks. He might be per­suaded to go along con­trary to his per­sonal judg­ment under the belief that the mas­ter would have the final or ulti­mate respon­si­bil­ity for accept­ing the pilot’s advice in the event of an accident.

”Although no Amer­i­can legal deci­sion has ever held that com­pul­sory pilotage was advi­sory in nature, con­fu­sion on this issue could under­mine the pilot’s per­cep­tion of his role. The “pilot as advi­sor” myth per­sists rein­forced by the entry in some log books “Pro­ceed­ing to master’s orders and pilots advice” that could have its basis out­side our legal sys­tem in some deci­sions of the courts in Con­ti­nen­tal Europe.”

So the Euro­peans have got it all wrong.

Sam Ignarski, writ­ing in Lloyd’s List, says: “Word in the small world of marine should go out that, as in San Fran­cisco, so also in Hong Kong and, we can imag­ine, any mature mar­itime juris­dic­tion cen­tre in today’s envi­ron­ment, the untouch­able sta­tus of pilots is no more.”

It is true that John Cota, pilot of Cosco Busan is doing time, and Hong Kong has fol­lowed suit by jail­ing the two pilots aboard the off­shore sup­ply ship Neftegaz-67 and the pana­max bulk car­rier Yang Hai which col­lided off Hong Kong with the deaths of 18 sea­far­ers. Evi­dently the untouch­able sta­tus is fray­ing at the edge.

We’ll leave these mus­ing with the words of Ignarski: “Of one thing we can be sure. The mod­ern need for an indi­vid­ual cul­prit in many soci­eties is not going to go away very soon and the crim­i­nal law can be a rather way­ward and blunt instru­ment in itself.

“So cer­tain is the progress of the crim­i­nal­i­sa­tion of sea­far­ers in our times that a per­fectly good case can be made for it as a marine peril.” 

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