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.”