HFW’s Joseph Botham explains why proposed UK pilotage changes have global influence
[Originally published in Port Strategy, 2013.03.29. Comments within brackets]
As the UK-Government supported Marine Navigation Bill (No.2) comes under close scrutiny by the national Parliament, there are wider implications for the Bill than its UK-centric focus implies.
Although comments, contributions and discussions surrounding the Bill are primarily UK directed, it would seem that the Bill is providing a platform for the consideration of issues which are of interest and of relevance to the industry internationally.
In the words of the International Marine Pilots Association, “…shipping is a global business and the position in the UK in terms of pilotage has to be considered in this international setting”.
Against this backdrop, the outcome of the consultation of the Bill may prove very interesting and influential in the call for a review and the shaping of international standards, regulation and requirements in respect to pilotage.
The Bill makes provisions in relation to marine navigation and harbours in the UK by proposing amendments to the current UK legislation relating to pilotage, harbour authorities, the general lighthouse authorities, the manning of ships, marking of wrecks, as well as extending the powers of port police in the UK.
A previous draft marine navigation bill was presented to the UK Parliament by the UK Department of Transport and consulted on in 2008. The current Bill revives much of the contents and scope of this 2008 draft bill. Most importantly it revives certain provisions which came under close scrutiny during the previous consultation and the discussions which remained open. These relate largely to the levels of training and proficiency, and the standards required for pilotage in UK harbours in respect to the holding of a Pilot Exemption Certificate.
The Bill aims to reduce the burden on ports and the shipping industry while reducing regulation and improving safety for ships navigating in and out of harbours and the seas around the UK.
In particular, the Bill seeks to reduce the risk of potentially expensive accidents involving the improper use of PECs and providing ports with new powers to help implement their safety responsibilities under the UK’s Port Marine Safety Code which establishes an agreed national standard for port safety in the UK.
Under the current regime, only the Master or First Mate of a ship may hold a PEC.
A PEC effectively allows a Master or First Mate of a ship to act as his own pilot. Without any PEC holder onboard, a ship would need to make use of a pilot provided by the relevant competent harbour authority, which would involve the payment of pilot’s fees to the harbour authority providing such service – qualified pilots provide their services to ships for a fee, calculated in relation to the ship’s tonnage, draught and other criteria.
Both a pilot’s expertise and that of a PEC holder relate to the specific navigational conditions in relevant specified harbours. This means that in order to be granted a PEC the applicant Master or First Mate must satisfy the relevant competent harbour authority of their experience and knowledge of the particular waters in respect to which they are applying for a PEC. It also means that PECs are not transferable between harbours/harbour authorities.
The Bill seeks to make the process of granting PECs more flexible by proposing to: (i) remove the restriction on the granting of PECs to exclusively the Master or First Mate of a ship; and (ii) extend the eligibility criteria and process for the granting of a PEC.
[The result would be that someone less prepared and probably more fatigued than a pilot could do his or her job, corroding the layer of safety represented by the pilots. This is mediocracy in action.]
Initially, it was proposed that any bona fide crew member may hold a PEC. However, following certain comments and stages of consultation in the UK Parliament this wording of ‘bona fide crew member’ has since been amended to the now agreed term of ‘deck officer’.
This amendment of the wording sheds light on the central point of concern – the rank and level of experience that must be met for the granting of a PEC. There has been much discussion as to whether the pilotage of any ship might now be placed ‘in the hands of a deck boy, the cook or the man on the street’.
In order to grant a PEC, the relevant competent harbour authority must be satisfied that the applicant has the skill, experience, local knowledge and sufficient knowledge of English to be capable of safely piloting one or more specified ships within its harbour without a qualified pilot onboard.
[The level the applicant would have to attain must be at least as high as the one where the pilot is. Will it?]
The supporters of the Bill argue that this shift from the level of rank to the level of experience will ensure enhanced security while promoting efficiency and cost savings in respect to the execution by harbour authorities of their legal obligations.
[Nobody is in favour of inefficiency. Too much protection, and bankruptcy results. But one should not ignore that more efficiency often comes at the expense of ‘thoroughness’, as Erik Hollnagel puts it. In other words, there will be (over)simplifications, shortcuts and other actions that tend to erode safety.]
This proposed relaxation and widening of the requirements for the granting of a PEC has proved to be controversial. It has paved the way for an industry discussion in respect to the position onboard ship of a PEC holder and, the level of expertise and experience required by a PEC holder to navigate the passage of a ship in or out of a harbour both in the UK and internationally.
In particular, the level of personal knowledge and expertise of the local safe routes and hazards has been discussed and it is feared that the proposal could result in a reduction in pilotage standards among ships using UK ports.
Some commentators see the changes as threatening safety in complex and often congested waters. In their view, the standard of training and examination of the PEC holder should be no more or less onerous than that of the pilot replaced. Others expect that the proposals would amount to a ‘dumbing down’ of pilotage capability and, in turn, increase the risk of accidents in UK coastal and restricted waters.
These concerns are not new; during the consultation of the 2008 draft bill it was also argued that pilotage requires experience, skills and professional judgment at a level which staff of lower ranks are unlikely to possess. One view was that a level of qualification for PEC holders should be set rather than empowering individual harbour authorities to assess each individual applicant’s merits.
In response, the UK Government has confirmed in the current consultation, that PEC regulation exemptions would only be made on the basis of demonstrable pilotage skill – harbour authorities will only be empowered under the Bill to award PECs to those who have the skill, experience and local knowledge sufficient to pilot a ship in the relevant harbour waters.
The UK Government has also emphasised that, as a result of the proposed amendments, it would be easier for Harbour Masters to revoke PECs from individuals found to be lacking in ability.
Whatever the outcome of the consultation on the Bill, it has thrown an uncomfortable spotlight on the UK pilotage industry, one that has drawn global attention.
Joseph Botham is an associate at Holman Fenwick Willan, a law firm advising businesses engaged in international commerce.