Pilotage, negligence and criminalisation

From Lloyds List Thursday 4 February 2010 by Sam Ignarski

AMONG the rules of thumb you are taught in the early months of marine insurance training used to be that the pilots of ships had, under the laws of pilotage, essentially no liability for negligence.

The ship and the master had to answer for faults or negligence in the event of loss or damage, for his role was nothing more than that of an advisor to the bridge, even if the services were compulsory.

Pilots, ex-seafarers themselves, often of great vintage, were not necessarily held in the greatest of esteem.

Take this reference to the pilot in Conrad’s impressive short story Youth: “We worked out of the Thames under canvas, with a North Sea pilot on board. His name was Jermyn, and he dodged all day long about the galley drying his handkerchief before the stove. Apparently he never slept. He was a dismal man, with a perpetual tear sparkling at the end of his nose, who either had been in trouble or was in trouble, or expected to be in trouble — could not be happy unless something went wrong.

“He mistrusted my youth, my common-sense and my seamanship, and made a point of showing it in 100 little ways. I dare say he was right. It seems to me I knew very little then and I know not much more now, but I cherish a hate for that Jermyn to this day.”

And so the tyro marine insurance man would witness the steady trickle of groundings and casualties of ships under pilotage, where the blunders and their consequences were paid for by claims submitted by the ship to the underwriters.

Pilots and their associations therefore have tended over the years not to carry errors and omissions insurance, and few, if any, have had cause to rue the day that their frugality has caused. Trouble has come instead from the modern tendency to apply criminal sanctions against pilots.

The latest manifestation of this tendency comes from the Hong Kong Special Administrative Region.

Readers may recall how on March 22, 2008, the offshore supply ship Neftegaz-67 collided with the panamax bulk carrier Yang Hai near Hong Kong, resulting in the death of 18 Ukrainian crew members on the supply ship following its capsizing.

This was the worst maritime accident locally since the capsize of the Macau ferry Fat Shan , which capsized during Typhoon Rose in August 1971.

The two masters and two pilots involved have all been jailed following a 90-day trial in a Hong Kong district court before Judge Susan D’Almada Remedios.

Yuriy Kulemesin, the Ukrainian master of the supply ship, received a sentence of three years and two months for breaking collision regulation rules five, eight and nine — failure to keep a proper lookout, failure to avoid a collision and failure to navigate properly in a narrow channel.

Tang Dock-wah, the senior pilot on board the bulk carrier was sentenced to three years imprisonment. Yao Hai master Lin Bo and the ship’s junior pilot, Bruce Chun, were both sent down for 30 months, all three for breaking collision regulations five and eight.

By all accounts this was a horrible casualty, duly marked by the judge who imposed a deterrent sentence for serious errors of navigation to mark the loss of 18 lives. It is not surprising that the court gallery was packed with the families of the pilots, for the previous imperviousness of pilots to paying the legal consequences of professional negligence has gone the way of the seafarers in Hong Kong also.

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.

What should today’s pilots — and indeed seafarers in general — do to cover themselves against the day when they are involved in a serious lapse of judgement or skill. Professional negligence insurance does not often encompass the paying of legal fees for defendants in criminal courts.

P&I insurance has visibly struggled with the legal costs and expenses that arise whenever a master or deck officer is in the dock under a criminal indictment. Yet it must be said that the hazard of criminalisation is a very real part of the spectrum of risks facing pilots and seafarers.

For these individuals, the trauma of an operational failure, which in the modern world is often painfully visible and career-threatening in any event, is followed by arrest and submission to the mercies of the criminal law system of the country concerned.

Some have a very rough time of it indeed, stranded far from home, broke and stuck in jail, with or without the help of consular assistance or the full attention of the owners and clubs concerned.

Errors of judgement or even blunders pepper the lives of many if not all of us. By definition, these acts or omissions lack mens rea, that is to say a guilty mind which formed an intention to do the thing complained of. The traditional plea of anyone in the aftermath of such errors or blunders is invariably: “I did not mean to”. It is usually in retrospect that the charge of careless or reckless conduct is made, which is a kind of trade description of the error in the first place.

Is it really beyond the ken of marine insurance to lay on within the spectrum of covers some kind of contingency for fees for the criminalised seafarer? Legal costs insurers do it all the time, which was of some help to the pilot on board the Cosco Busan , though it did not help the unfortunate man’s progress to jail.

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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