Sea change

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Marine pilots enjoy a unique position in many world ports as they are immune to litigation over marine claims, leaving the master of the vessel vulnerable. Eric Alexander asks whether a change in law is required or if better training is needed

On average there is one substantial marine claim reported per week somewhere in the world that is blamed on pilot error. That is according to a report recently issued by the International Group of Protection and Indemnity Clubs. This followed an agreement by the group's pilotage sub-committee in October 2004 that clubs should pool information on 'pilot error'-related claims in excess of $100,000 (£52,000) for policy years 1999 to 2003 to determine whether such claims were increasing in frequency and cost.

Commenting on the report's findings, Mark Williams, loss prevention director of the West of England P&I Club, says: "It should be remembered that the number of major claims caused by pilot error is comparatively small when the number of pilotage movements around the world is taken into account."

Supporting that view, Tony Goldsmith, partner in the London law firm Hill Dickinson and a master mariner, adds: "Statistically there may be considered a relatively high number of casualties each year involving pilots. Whilst statistics relating to safety are important, and a responsible industry should focus on trying to reduce the numbers of casualties, statistics of this nature should be considered in context. The services of pilots are only called upon when vessels are in relatively close proximity to land and dangers. It is therefore not surprising that a high proportion of casualties occur in these waters, and thus involve pilots."

Large claims not increasing

According to the International Group's database for the period under survey, a total of 262 claims over $100,000 believed to be caused by pilot error were reported. Over the five-year period, two incidents involved fatalities. The number of incidents showed an upward trend, rising to a peak in 2001 followed by a levelling off, giving an overall average number of incidents per year as 52 (see graph right).

For the time being, the report concludes that pilot error-related claims exceeding $100,000 are not increasing in frequency, and with the overall average cost of each claim over the period being $850,000 it suggests either that the average cost is not increasing (see graphs p29). However, Mr Williams says: "It should be remembered that the database currently contains only a small number of claims caused by pilot error. It is therefore not possible to draw any firm conclusions at this stage. This may change over the coming years once the amount of information in the database has increased."

In the key incident areas the report recommends better or further training or briefing in bridge team management with the pilot on board. This is especially required in relation to passage planning and the ability of the bridge team to be in a position to judge when there has been a departure from the passage plan when berthing and unberthing. Meanwhile the database is being updated and continued with data from 2004 to the present. The report has been forwarded to a number of interested parties including the International Maritime Pilots Association.

Mr Williams adds that this is not a new issue for the International Group. The group's pilotage sub-committee was formed many years ago and has been involved in a number of inter-industry projects on pilotage issues in the past. The sub-committee is also in favour of International Maritime Organisation's resolution A.960(23) titled Recommendations on Training and Certification and Operational Procedures for Maritime Pilots other than Deep-Sea Pilots. However, since these are simply guidelines at present, resolution A.960 may not be followed in all cases. Mr Williams states: "The issue is therefore not necessarily one of higher standards, but about the universal adoption of the existing ones."

As to whether it would be possible to introduce mandatory qualifications for pilots as is the case for seafarers is unclear at present. It would only be possible to propose such at change at IMO if an administration can be found that is willing to sponsor such a move and the outcome is impossible to predict at this early stage. Moreover, the process is likely to be very lengthy with no guarantee of success.

Master and commander

Mr Goldsmith points out that pilots enjoy a unique status in almost every jurisdiction in the world, except for Panama (where the Panama Canal Authority will compensate if a casualty is the fault of the pilot). The universal rule is that the master remains in command of the vessel, and the pilot an adviser.

He says: "Pilots board a vessel, provide advice and co-ordinate operations. However, they never (apart from in Panama) take responsibility for the vessel. In England, they are considered the servant of the ship owner, who cannot, therefore, sue the pilot's underlying employers, and they are able to limit their own liability to £1000 plus the cost of the particular pilotage service in the event they are sued.

"Many people feel that this is unfair, and in today's environment, where the spectre of criminal sanctions including imprisonment are always present, that the status quo is no longer tenable. It is true that under English law, the Merchant Shipping Act 1995 does not provide a ready method of prosecuting a pilot for their failures. Whether in relation to pollution or navigation generally, the Act focuses on the prosecution of the master or owners. While this probably does not prevent a prosecution from being brought under the general law of the land in circumstances where there is a fatality, it clearly does distinguish pilots from those they serve."

Mr Goldsmith says that, leaving aside the wider and important debate of whether criminalisation of seafarers is right or wrong, there is clearly a dichotomy that many in the industry feel is unfair and unworkable. The master is required to take a pilot, and rely upon that pilot's local knowledge - often knowledge that the master simply does not have. But it will not always be immediately apparent to the master that something is going wrong, and often it might be too late once it has become apparent for the master to take control of the situation and avoid a casualty. In his view: "In these circumstances, it is clearly unfair that the master might be prosecuted, while the pilot is not.

While on the face of it this might be right, it should be borne in mind that it would be a defence for a master to show that he had exercised reasonable care. Accordingly, the master might, particularly in a sensible jurisdiction such as England, successfully defend a prosecution if he can show that he had been properly monitoring the pilot and, when it became clear that something was wrong, did all he could to prevent the casualty."

The International Union of Marine Insurance identifies one of the big problems facing the marine industry as the growing shortage of trained and experienced personnel, including crew, pilots and vessel managers, which has resulted in a noticeable increase in both the frequency and severity of large claims, particularly groundings and collisions, which are generally directly linked to human error.

Fred Robertie, chairman of IUMI's ocean hull committee and chairman of the American Hull Insurance Syndicate, says that underwriters are paying more attention to the crewing, training and crew retention practices of their insureds as a way to minimise the negative impact of this trend. But unfortunately, pilot error is often an area where even the most diligent shipowner has little control.

The greater level of maritime trade has brought traffic bottlenecks in many ports and other key areas, resulting in more challenging situations for pilots. Add to this an apparently increasing number of pilots who are not adequately trained or who do not possess the required experience, and the danger becomes obvious.

Mr Robertie, an ex-mariner himself, says: "The pilot is the recognised expert for local waters. Even the most experienced and competent master is put in a very difficult position when a pilot gives him questionable advice. The master is typically in a no-win situation when faced with the choice of whether or not to countermand a pilot's directive, and generally will do so only as a last resort."

A large part of the solution, he argues, must lie with improved training and, ideally, internationally recognised criteria for the training and competence of all pilots. This, coupled with an understanding that pilots should conform to a single bridge language (similar to airline pilots and air traffic controllers), would go a long way to minimise the current rash of pilot errors leading to accidents.

Marine pilot training

One P&I mutual that is very active in loss prevention and risk management is the New York-based American Club. At the end of 2004 it launched training courses on marine pilotage for deck officers after reaching an innovative agreement with the Odessa National Maritime Academy. The first seminar was held for 16 officers, who came from a broad range of vessels owned by members of the club.

The courses, which have been ongoing and are now organised in other maritime centres, are aimed particularly at reducing contact damage-related claims. The primary objective of the training is to remind members' senior officers that they have the responsibility and authority for the ship, and need to be diligent at all times when the vessel is under pilotage.

Mr Goldsmith recalls that things today have changed considerably from the historical position when pilots were local men with local knowledge providing a service, which a shipowner could either accept or decline. Pilots are now compulsory in most ports, vessels are far bigger, and there is far more onus placed on a pilot to control tugs and to co-ordinate matters with third parties. Masters do, and are required to, place heavy reliance upon pilots.

He says: "If these were the only considerations, then there might be a good argument for saying that pilots should be far more accountable. However, there are other considerations, at least one of which is insurance. From a practical standpoint, a pilot does not have advance notice of the values of the vessels that he might be piloting. He would need to obtain insurance to cover any potential liability, the cost of which could be high, and would have to be factored into pilotage dues. There would also be a practical problem whenever an incident occurred. Who would a claimant sue? The vessel owner, the pilot, or both? All that would result is additional litigation, additional costs and additional uncertainty."

Mr Goldsmith also notes that with increased emphasis on safety, ship owners are required to send masters out to vessels well in advance so that they can spend time with their outgoing counterpart before taking over command and being fully conversant with the vessel. He says it would seem ironic if having improved safety on the one hand in relation to the master's hand-over, pilots were then expected to take over a vessel with little more than a cursory glance at the vessel on their way up to the bridge. Therefore, if a pilot were expected to take on additional burdens of responsibility, then they would also be advised to ensure that they had satisfied themselves with the fabric of the vessel in all respects before so doing.

Mr Goldsmith says: "On balance therefore, particularly in relation to civil liabilities, it does not seem unreasonable to keep the status quo. Unfortunately, with the criminalisation of seafarers, and the public's thirst for finding a scapegoat, it is perhaps unfair that the pilot is able, in large part, to escape criminal liability.

"In a sensible jurisdiction however, one would hope that the court would be influenced by practical considerations onboard the vessel, and would recognise when an incident was truly caused by a third party and not the master. That said, I am only too aware that there are many jurisdictions where such niceties are overlooked."

He concluded: "However, to advocate that the status quo should change seems to me to be putting the cart before the horse. The problem is not that pilots should be treated with the same status as the masters to whom they serve, but that the courts should be less keen on criminalising those onboard the vessel in circumstances where conduct falls below par, but where there is no true criminal intent."

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