Westlaw UK Pilotage Law: Barrie Youde © 2014 Sweet & Maxwell Ltd

August 26th, 2015 by JCB
Posted in Articles, Features, Technical and Training | No Comments »

The Pilot is grateful for the kind permission by Sweet and Maxwell to reproduce the Westlaw UK Insight article on Pilotage, written by Barrie Youde. Barrie is a former Liverpool Pilot and now a solicitor with RA Wilkinson & Co.

Photo: Andy Wallace. Port of London Authority

In strict terms, pilotage and navigation are one and the same thing. By custom in marine terms, pilotage means coastal navigation and includes the skills of ship-handling and manoeuvring at close quarters as might be necessary.

Overview of Topic

Statute Law: The Pilotage Act 1987 by sections makes provision for:

1. The creation of governing bodies (Competent Harbour Authorities) at local level.

2. The determination of services which need to be provided in the public interest.

3. The examination and qualification of pilots by authorisation and the revocation thereof.

4. The employment or self-employment of pilots.

5. (No longer effective).

6. Pilot Boats.

7. Pilotage Directions.

8. Pilotage Exemption.

9. Non-discrimination.

10. Pilotage charges.

11. Delegation of powers.

12. Information as to joint arrangements.

13. Resolution of disputes between harbour authorities.

14. Accounts.

15. Compulsory pilotage.

16. Liability of ships under compulsory pilotage.

17. Right of authorised pilot to supersede unauthorised pilot.

18. Declaration as to draught of ship.

19. Prohibition against over-carriage.

20. Facilities for boarding or leaving ships

21. Misconduct by pilot.

22. Limit of liability of pilot.

23. Deep Sea pilotage certificates.

24-29. No longer effective.

30. Orders and regulations.

31. Interpretation.

32. Transitional and consequential provisions and repeals.

Origins

Pilotage is amongst the oldest of public professions, having records known to exist in pre-Christian times. The 13^th-century Code of Oleron contains numerous significant provisions as to pilotage and is today readily accessible on the internet. Subsequent records, if not quite so readily accessible, are preserved in large quantity. In 1541, compulsory pilotage (of which, more below) was introduced in the approaches to the Humber Estuary by Royal Ordnance of King Henry VIII, who had been an eye-witness to a shipping casualty thereat. In modern times, Halsbury’s Laws of England (4th Ed.) states that pilotage is regulated almost entirely by statute. The governing statute today is the Pilotage Act of 1987.

Local Government

The purpose of all of the foregoing is and always has been the preservation of life and property around the coast of the jurisdiction and in the ports and harbours thereof. In that regard, the public examination and qualification of pilots is older than most if not all other categories of mariner. Today, the examination and qualification of pilots is entrusted to local bodies, each one of which is designated by the Secretary of State as a Competent Harbour Authority (CHA).

Photo: Sweet & Maxwell

4. Legal Status of a Pilot:

The statutory definition of a pilot is “A person not belonging to aship who has the conduct thereof – and ‘pilot’ and ‘pilotage’ shall be construed accordingly” (s.31(1) 1987 Act). When the conduct in question is seen to be imposed upon the ship by compulsion as a matter of public law, the importance of due qualification becomes self-evident. In 1877, in the case of Holman v Irvine Harbour Trustees (1877) 4 R. 406, the Court found that a pilot qualified by statute is a public servant “similar to a Notary Public or a Messenger-at-Arms”. This description was expanded upon in 1989 in Esso Petroleum Co Ltd v Hall Russell & Co Ltd (The Esso Bernicia) (1989) A.C. 643 where the House of Lords found that a pilot is an independent professional who, when serving a ship, acts as a principal and not as the servant or agent of anybody else. This point was of high significance in absolving a harbour authority (as both examiner and general employer of the pilot) from liability for the consequences of the negligence of an otherwise competent pilot.

5. Limit of Harbour Authority Liability

The point was further underlined in 1993 in the Admiralty Court in Oceangas (Gibraltar) v Port of London Authority (The Cavendish) (1993) 2 Lloyd’s Rep. 292 when a challenge was made following the repeal of the Pilotage Act of 1913 (under which the case of The Esso Bernicia had been considered) and the introduction of the Pilotage Act of 1987. Mr Justice Anthony Clarke (as he then was) found that the introduction of the new Act had not altered the pre-existing law. The key point upon which a harbour authority remains able to escape liability for the negligence of a competent pilot is s.16 of the Act of 1987 (largely repeating a provision in the 1913 Act), which provides that: “The fact that a ship is being navigated in an area and in circumstances in which pilotage is compulsory for it shall not affect any liability of the owner or master of the ship for any loss or damage caused by the ship or by the manner in which it isnavigated.”

Clarke J. cited the biblical principle that no man can serve two masters when identifying the fact that s.16 “makes a pilot the servant of the shipowner for all purposes connected with navigation”; and also confirmed that, because the civil liabilities of any ship remain unaltered when under compulsory pilotage, the liabilities of a harbour authority in those circumstances are satisfied at the moment when a competent pilot is provided to the ship.

Photo: JCB

Standards where Pilotage is Compulsory

Given that pilotage is compulsory in many areas and that the need for due qualification amongst pilots is self-evident, the common-law view as to standards of qualification amongst pilots becomes of high significance. Following the The Sea Empress disaster at Milford Haven in 1996, Cardiff Crown Court found that (i) because the pilot is trusted to take the conduct of the ship, (ii) because the shipmaster (in all probability meeting his pilot for the first time) is obliged to take the pilot’s qualifications at face value and (iii) because in the same breath the harbour authority escapes liability for the pilot’s actions by virtue of s.16 of the Act of 1987, the “highest possible standards” are required of the port authorities and those who administer pilotage in compulsory pilotage areas. The significance of the judgment is all the greater in that (although it was a criminal case and heard in the Crown Court) it was delivered by the Presiding Judge of the Admiralty Court (Mr Justice David Steel). Moreover, the defendant harbour authority (having pleaded guilty to the criminal charge arising from environmental pollution) then appealed against sentence. In the Court of Criminal Appeal, in allowing a reduction in sentence, the Lord Chief Justice Lord Bingham found that one reason (amongst others) for doing so was that, subsequent to the disaster, the harbour authority had taken proper steps to address the principle that the highest possible standards are required.

International Law

Thus it is that the common law follows the overall pattern of development and improvement in pilotage law throughout all history. A similar view is taken in international law by Resolution A960 (2003) of the International Maritime Organisation under the aegis of the United Nations Organisation, which provides that developed standards in pilotage should be maintained.

Exemption from Compulsory Pilotage

The power which is given to the Competent Harbour Authorities extends beyond the mere examination and qualification of pilots and includes the power (and the duty) to determine the limits of the geographical areas in which pilotage ought to be compulsory; within, of course, the limits of the overall jurisdiction of the CHA. Where a CHA has determined that pilotage ought to be compulsory in the interests of public safety in a particular area, the CHA is also granted the power to issue a Pilotage Exemption Certificate, upon application, to certain navigating officers who are able to satisfy the CHA by examination that they are able to conduct the pilotage of a particular ship or ships. As far as can be ascertained, the issue of a Pilotage Exemption Certificate (or PEC) was introduced under the Pilotage Act of 1840, upon not only the development of the steamship but also the substantial increase in maritime coastal traffic. From the introduction of the PEC in 1840, the certificate was available only to the bona fide Master or Mate of the ship for which exemption was sought. By the Act of 1987, the scope of the availability of the PEC was even more strictly determined as that of “bona fide Master or First Mate”. It was surprising, therefore, when the Marine Navigation Act 2013 relaxed the required standard of “bona fide Master or First Mate” by reducing it to “any deck officer”. The reduction in standard for qualification is not merely obvious but is in head-on conflict with the principles of common law and international law that the highest possible standards need to be maintained in compulsory pilotage areas. Quite how the conflict will be resolved remains to be seen.

An Important Difference Between an Authorised Pilot and the Holder of a PEC

The difference between an authorised pilot and the holder of a PEC is of significance, not least because the statute provides in express terms that the examination required of a PEC-holder “must not be unduly onerous” and, further “must not be more onerous” than that required for qualification as an authorised pilot. A further significance arising is that it is a statutory impossibility for anybody to be both a shipmaster and an authorised pilot at one and the same time. The point arose in 2002 in the unusual case of the Anna Merryl in Grimsby Magistrates’ Court (unreported). An authorised Humber pilot of some years’ standing had taken leave of the pilotage service and had taken employment as Master of the vessel Anna Merryl. Upon informing the Humber port authority (as he was obliged to do) that he intended to proceed outward-bound to sea, he received a direction that he must take an authorised pilot on board. Insisting that he was in any event an authorised pilot for the Humber, the Master refused to comply and proceeded to sea. The port authority then brought a prosecution at which the Master pleaded guilty, having by then been advised that because any Master by definition “belongs” to his ship and because a pilot by definition is “a person not belonging to a ship”, no man can be both a shipmaster and a pilot simultaneously.

The General Employment, or Otherwise, of Pilots

Until the advent of the Pilotage Act 1987 most, if not all, pilots were self-employed. In the case of the Esso Bernicia (above) the position of the pilot as an employee of the harbour authority was unusual. The Pilotage Act 1983, however, provided that a harbour authority should be deemed to have the power (and always to have had the power) to employ pilots. The Act of 1983 was a consolidating Act and was effectively a prelude to the Act of 1987 which provides at s.4 that a CHA “shall offer to employ under a contract of employment any person it authorises” to act as a pilot.

Under the 1987 Act offers of employment were accepted in some cases and rejected in others where, under s.4(2)(b) of the Act, “a majority of the relevant authorised pilots haveagreed” that terms of employment need not be offered. In simple terms, a pilot may serve either under a contract of employment with the CHA or may remain self-employed, subject only to the agreement of the majority of the relevant authorised pilots (which in more simple terms means the majority of the pilots of the port). Where in days gone by the legal right of a pilot to serve on terms of self-employment was absolute (and largely unquestioned), today that right is subject to the agreement of the majority of the pilots of the port.

A further unusual feature of the Act of 1987 is that a CHA is given the power under s.4(4) “to refuse to authorise any person who is not willing to provide his services in accordance with the arrangements made”. The anomaly is that by s.2 of the Act the CHA is obliged to “keep under consideration” and “shall provide” the services which it deems necessary. It follows that if a CHA might seek to impose terms of employment which are unacceptable; and if it might then refuse to authorise any person unwilling to provide services in accordance with the arrangements made; the CHA might well find itself in default of its own superior duty to provide pilotage services. In consequence, in order that pilotage services may be provided anywhere, due agreement between pilots and the CHA is a sine qua non.

Photo: JCB

Legal Protection of Pilots

At the High Court in Belfast in 2011, Mr Justice McCloskey accepted a submission from Leading Counsel that “We are an island nation. We need a proper pilotage service and the pilots need the protection of the law”. As long ago as the 18^th century, pilots enjoyed a statutory right of appeal to a county court or to a magistrates’ court against any authority which might seek to disqualify or otherwise to penalise him improperly. This right continued under the Pilotage Act of 1913 until its repeal under the 1987 Act, upon its enactment in 1988. In consequence, the legal protection of the authorisation of any pilot now lies solely by way of Judicial Review. In recent years the Courts have become notoriously overloaded by applications for Judicial Review (although happily not from pilots) and a real consequence is that the statutory pilots of the jurisdiction have been deprived of a most useful and economical protection which once was theirs by statutory right. Precisely what purpose was served by the removal of that right in the Act of 1987 is difficult to see.

Key Acts

Pilotage Act 1987

Merchant Shipping Act 1995

Marine Navigation Act 2013

Key Subordinate Legislation

Pilotage Directions as published by Competent Harbour Authorities.

Key Quasi-legislation

Port Marine Safety Code

Key European Union Legislation

None

Key Cases

Holman v Irvine Harbour Trustees (1877) 4 R. 406

Fowles v Eastern & Australian Steamship Co Ltd (1916) 2 A.C. 556

Esso Petroleum Co Ltd v Hall Russell & Co Ltd (The Esso Bernicia) (1989) A.C. 643

Oceangas (Gibraltar) v Port of London Authority (The Cavendish) (1993) 2 Lloyd’s Rep. 292

Environment Agency v Milford Haven Port Authority (The Sea Empress) (1999) 1 Lloyd’s Rep. 673

The Anna Merryl (2002) Unreported

Key Texts

None

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