Pilotage Last updated 28-Jun-2015

Duty and liabilities of pilots were very important legal matters for our ancestors who valued safety of their sea trade so high as to provide in laws of Oleron, art. 25, that "[I]f a pilot undertook to answer for the piloting on his head, and afterwards lost, or even perilled the ship, the seamen or merchant might strike off his head without being liable to any punishment" but, added the law, "before he is killed it is expedient to ascertain that he has not wherewithal to pay".

English law of the nineteenth century regarded pilots as persons who, in consequence of their special knowledge of particular waters, are taken on board to superintend the steering of the vessel where the navigation is difficult and dangerous. Pilots’ special knowledge and their responsibility for the safety of navigation were deemed to be so advantageous to shipowners, that most systems of maritime law have made the employment of pilots compulsory. Such compulsory pilotage was also important from that fact that if the vessel sailed from a port where a pilot may he procured, and the nature of the navigation requires one, without pilot, she would be not seaworthy.

English common law judges were of opinion that compulsory pilot was considered as the ship’s commander so far as his special knowledge for the purpose of the navigation is concerned and only under extraordinary circumstances a master could be justified in interfering with the pilot. In The "Lochlibo” (1850) 3 W Rob 310 by Dr. Lushington called such right to intervene a dangerous doctrine at p.316:

It appears to me that it would be a most dangerous doctrine to hold forth, considering the duties imposed upon pilots, and the experience and local knowledge they are supposed to possess, if I were to sanction the interference of the master in any way in the performance of those duties which the pilot must be considered more peculiarly competent, to discharge, and of which the master, in the majority of cases, must be a very inferior judge. I do not of course in these observations intend to go the extraordinary length of saying that under no possible state of circumstances the master justified in interfering with the pilot if the latter was utterly incompetent to the proper discharge of his duties, it would clearly be incumbent upon the master to interfere for the protection of the lives and of the property on board his vessel.

The Pilot Act provided, that together with conduct of the vessel, during the period of their charge, the whole responsibility was upon pilot: "owners or masters of vessels conducted by pilots shall not be responsible for any damage done by reason of the neglect, default, incompetency, or incapacity of such pilot." Yet in some cases when danger was not related to pilot’s special knowledge of particular waters the rule stated above was subject to some qualifications. In case of collision in fog for example, The "Girolamo" (1834) 3 Hag Adm 169, Sir Nicholl said at p.176:

… but must not [pilot’ liability] be strictly confined to the act of piloting? Is the master or are the owners relieved from all sorts of responsibility, however gross and manifest the misconduct of the pilot may be, whilst the master remains a passive looker-on, without taking any step to guard against damage?

Sect. 633 of the Merchant Shipping Act, 1894 said: An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship. And only by Pilotage Act 1913, § 15, the concept of liability was radically changed:

Liability of owner or master in the case of a vessel under pilotage.

15.—(1) Notwithstanding anything in any public or local Act, the owner or master of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory.

Limitation of pilots’ liability where bond is given.

35.—(1) A licensed pilot, who has given a bond in conformity with byelaws made for the purpose under this Act, shall not be liable for neglect or want of skill beyond the penalty of the bond and the amount payable to him on account of pilotage in respect of the voyage in which he was engaged when he became so liable.

American law also considered pilot, in that part of the voyage which was within his pilotage ground, as the temporary master; "charged with the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew". Admiralty Law handbook of 1920 edition says:

When a pilot comes aboard, it is often a difficult question to say what are his duties and those of the master in connection with the navigation. No ship is large enough' for two captains. It may be said, in general, that the pilot has charge of the navigation, including the course to steer, the time, place, and method of anchorage, and, in general, the handling of the ship. The master must not interfere unless the pilot is plainly reckless or incompetent. Then he must take charge himself.

Yet contrary to English common law courts that until the twentieth century based their decision on personal liability of the pilot, the American courts hold that a vessel is responsible to third parties for injuries arising from the negligence of the pilot, who came on board under a state statute of compulsory pilotage. The reason why the vessel is held liable was discussed in "Ship and liability of inanimate things" where it was shown that admiralty looks on the vessel itself as a responsible thing, irrespective of ownership. In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so. Chief Justice Marshall once gave the opinion of the Supreme Court of the United States in the following words:

This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offence. But this body is animated and put in action by the crew, who are guided by the master.

The rationale of the doctrine excludes the idea of any personal liability of the owners for the act of a compulsory pilot, but it leaves a pilot liable to the vessel for any damage caused by carelessness or negligence.

Big battles of the nineteenth and the beginning of twentieth century on liability between the shipowners and the cargo owners came to an end with adoption of The Hague Rules in 1924 later amended by The Hague-Visby Rules. Today shipowner is not liable for navigational mistakes neither master nor pilot.

Article IV of the Hague-Visby Rules: "2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:
(a) Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship."


No ship is large enough for two captains.
Robert M. Hughes, Handbook of Admiralty Law, 1920

 

It might be no so easy to grasp the difference, but when we say that master is always in charge of safe navigation it does not necessarily mean that he is also legally liable for safe navigation.

Legal liabilities of any person are usually governed by that jurisdiction under which his act or fault has been committed and depends on degree of personal undertaking. For example while English courts of the nineteenth century considered pilots wholly responsible for any loss or damage occasioned by their fault or incapacity at the time pilots were conducting compulsory pilotage, their American colleagues held that it was the ship to be prosecuted because an offence resulted from pilot’s mistake was committed by the vessel (See Personal liability of pilot). Therefore it well can be that in two different countries (jurisdictions) same misconduct in one case may and in another may not attach legal liabilities.

Liability is relatively modern legal notion; previously a word ‘obligation’ was used to deliver the sense of legal duty. When we speak about legal duty based on obligation "to do something" or "not to do something" we shall understand that underperformance or misjudgement and mistake will not usually make a person legally liable. To be legally liable for any act or inaction a person first should legally bind himself to do something or refrain from doing, i.e. take on himself a legal obligation. Often such legal promises go together with remedy for their breach, for example in case of mortgage, the house is a remedy which goes to the bank if person stops paying instalments. Simple promise without any intention to create legal relationships brings with it only moral duty.

When one considers master and pilot relationships and their obligations towards safety of the ship it should be remembered that when company’s policy says that master is responsible for safe navigation of the vessel it only means that captain is overall in charge, same as he is in charge of abandon ship drill and many other things. It does not impose any particular legal obligation onto the master apart from his usual duty to navigate vessel with care and skill or without negligence. On the other hand legal liability of compulsory pilot is usually depends on local regulations. In the United Kingdom for example the Pilotage Act 1987 says:

16. Liability for ships under compulsory pilotage.
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 is navigated.
22. Limitation of liability in respect of pilots.
(1)The liability of an authorised pilot for any loss or damage caused by any act or omission of his whilst acting as such a pilot shall not exceed £1,000 and the amount of the pilotage charges in respect of the voyage during which the liability arose.

In simple words, one can safely assume that master and pilot have legal duty to exercise due care and follow the rules of good seamanship. For many countries or jurisdictions it is enough to show that captain was not negligent to avoid liability in case of accident. Question who should have full control over the navigation of the ship and what liability it imposes, depends on the law of country where pilotage is taking place and not on company’s navigational policy. For non-compulsory and deep sea pilotage master retain full control of the vessel as his company’s SMS provides, while pilot acts as his advisor and assist junior officers during master’s hours of rest in areas of dense navigation.

Compulsory pilots act under direction of local rules and legislation they are not BTM members. See for example America Pilots’ Association letter on The Respective Roles and Responsibilities of the Pilot and the Master:

Navigation of a ship in United States pilotage waters is a shared responsibility between the pilot and the master/bridge crew. The compulsory state pilot directs the navigation of the ship, subject to the master’s overall command of the ship and the ultimate responsibility for its safety. The master has the right, and in fact the duty, to intervene or displace the pilot in circumstances where the pilot is manifestly incompetent or incapacitated or the ship is in immediate danger ("in extremis") due to the pilot’s actions. With that limited exception, international law requires the master and/or the officer in charge of the navigational watch to "cooperate closely with the pilot and maintain an accurate check on the ship’s position and movement."

State licensed pilots are expected to act in the public interest and to maintain a professional judgment that is independent of any desires that do not comport with the needs of maritime safety. In addition, licensing and regulatory authorities, state and federal, require compulsory pilots to take all reasonable actions to prevent ships under their navigational direction from engaging in unsafe operations. Because of these duties, a compulsory pilot is not a member of the bridge "team." Nevertheless, a pilot is expected to develop and maintain a cooperative, mutually - supportive working relationship with the master and bridge crew in recognition of the respective responsibility of each for safe navigation.
Adopted by the Board of Trustees of the America Pilots’ Association on October 8, 1997.

See also extract from written evidence from John Clandillon-Baker FNI, MP [Member of Parliament] about Marine Pilotage. Original is here: www.parliament.uk

1. What is a pilot?
The following definition was established by the Merchant Shipping Act 1894 which states that:
"Pilot means any person not belonging to a ship who has the conduct thereof.

2. What does a pilot do?
Basically the pilot is a seafarer who has detailed knowledge of a port approach or dangerous navigational area and who uses that knowledge to ensure the safe passage of a vessel through the pilotage district.

3. What is the difference between a Captain and a pilot? The Captain (Master) always has command of the ship and thus has ultimate responsibility for the safety of the ship, its cargo and crew. The pilot has the conduct of the ship in the pilotage district and upon boarding a vessel agrees a passage plan for the transit with the master but is then responsible for directing the course and speed of the vessel to execute the passage plan.

4. Two Court cases have defined the term "conduct": The Tactician (1971): In this case the judge considered the meaning of the word "conduct". And stated: "it is a cardinal principle that the Pilot is in sole charge of the ship, and that all directions as to speed, course, stopping, and reversing, and everything of that land, are for the Pilot".
The Mickleham (1918): This case also considered the meaning of the word "conduct" and again concluded that if a ship is to be conducted by a pilot it "does not mean that she is to be navigated under his advice: it means that she must be conducted by him".

5. Why is a pilot required Ships are designed to proceed fast and efficiently on passages between ports so when operating in a port they are operating in an environment for which they weren’t designed.
Likewise, ships’ Captains and officers are trained and qualified to navigate ships between ports but cannot be trained for every port so in a port and its approaches they are working in an environment for which they haven't been trained.

Unfortunately I have only American and British sources on this issue. If someone has documents on legal liabilities of pilots and master under European or any other jurisdiction, I will be very glad to publish them here.


If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shah not be eaten; but the owner of the ox shall be quit.
Exodus, xxi.28

Short excurse into history of Maritime Law is necessary to understand how liability for damage caused by ship was apportioned by our ancestors.

Ancient law considered man responsible for his own wrongs and for crimes or damages caused by his slaves. When his horse or cattle injured or damaged someone or someone’s property that horse and cattle was subject to forfeiture to the benefit of injured person. The owner himself had no blame . Similar rule was applicable to inanimate things. For example in Edward the First’s (King of England from 1272 to 1307) time some of the rules were close to barbarian laws at their rudest stage. If a man fell from a tree and was injured or died, the tree was to be punished and it was called deodand. In books we can find the following definition to deodand:

If an animal or some inanimate thing killed or injured a person, as where a horse threw a man, or a wheel came off a wagon, or by the action of the wind a tree fell on him, the animal or thing became, somewhat on the principle of a scapegoat, a devoted thing, a deodand,…

The most striking example of application of this rule was a ship. If due to the rolling man fell overboard and drowned, then the motion of the ship was considered to be the cause of death and the ship was forfeited to the admiral upon a proceeding in the admiral’s court, and subject to release by favour of the admiral or the king.

"A ship is the most living of inanimate things … every one gives a gender to vessels", said famous American jurist Oliver Wendell Holmes observing that only fact that the ship was always treated as if endowed with personality helps to understand many seeming peculiarities of the maritime law. It must also be remembered that all through the ages the ship was the only moving construction which required numerous crew and captain to operate. Being often geographically detached from her owner on the long trips or leased to another person by way of charterparty, the ship was to answer by her value for any wrong done by the master or crew. The owner, therefore, was not personally to blame, and when vessel was bareboat chartered, he cannot even be charged on the ground that the damage was done by his servants. It was, therefore settled that the vessel may be arrested and sold to pay the loss in any admiralty court whose process will reach her.

In practical terms the ship was the only security available when claim was brought up in foreign port. Instead of looking for a remedy abroad, seizure of vessel was usually the only way to satisfy local claim, leaving the foreign owners to get their indemnity from their insurers at home. Black Book of The Admiralty says: "The ship has to pay for it," which had a meaning that shipowner’s property was to be sold, and the proceeds applied to pay for a wrong committed by ship’s master or crew.

By the maritime law the ship was not only the source, but the limit, of the owner’s liability. The owner was discharged from responsibility for wrongful acts of a master appointed by him upon surrendering his interest in the vessel and the freight which she had earned. Lord Mansfield said in Abernethy v Landale (1780) 2 Doug 539 at p.542 that "freight is the mother of wages, and the safety is the mother of freight". It may look strange for seafaring people today but in the eighteenth century it was the best way to encourage sailors to save their ship or all they could. Because as another famous English judge stated "if sailors were in all events to have their wages, and in times of danger entitled to insist on an extra charge on such a promise as this, they would in many cases suffer a ship to sink, unless the captain would pay any extravagant demand they might think proper to make." The ship was generally considered to be the debtor, if the debtor perished, there was an end of the matter.

From all the above one can see that maritime law from as far back as documents permit us to judge for many practical and legal reasons treated the ship as inanimate thing but endowed with personality, which usually was by itself the only asset available "at the far side of the world" to settle any claim and therefore was represented in the courts instead of the owner and was answerable for faults of her master and crew.

It must be said here that English judicial system was very complex and all above said was applicable to the Admiralty court of England who applied maritime law rules, while English common law courts who considered many commercial cases could not proceed the same way because in simple words only personal liability on the owner could bind a particular chattel (the ship in our case) to answer for his wrong. This personal liability was difficult to find when damage was done to third parties or when there was no negligence on the part of owner/master.


The pilot’s liability is for ordinary care, but that means the ordinary care of an expert in his profession.
Handbook of Admiralty Law, R.Hughes, page 34.

 

List of publications

Black Book of Admiralty

Handbook of Admiralty Law, R.Hughes, 2nd edition, 1920

Law Dictionary, Mozley and Whiteley’s, 2nd edition, 1904

Oxford Dictionary of English, 3rd Edition, 2010

The Common Law, O.W.Holmes

The Deodand Act, 9 & 10 Victoria, Chapter 62

The Merchant Shipping Act, 1854

The Merchant Shipping Act, 1894

The Pilotage Act, 1913

Tort, Crime and Police in Medieval Britain (A Review of Some Early Law and Custom, J. W. Jeudwine, 1917

Webster’s dictionary, 2001 edition

List of cases

Abernethy v Landale (1780) 2 Doug 539

Harris v Watson (1791) Peake NP 72

Clay v Snelgrave [1796] EngR 837; 12 Mod 405;

Phillips v Headlam (1831) KB 238

The "Girolamo" (1834) 3 Hag Adm 169

Cooley v Board of Wardens of Port of Philadelphia, 12 How. 316, 13 L. Ed. 1003

The "Lochlibo" (1850) 3 W Rob 310


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