It is evident from the other chapters of this Guide dealing with the technical aspects of ship berthing that the effective use of pilotage and towage services is crucial in avoiding accidents. It is therefore important to reflect briefly on the legal responsibilities of pilots, those engaged in towage services, and the ships that they assist.
The relationship between the master and the pilot is fraught with potential difficulties and conflict.The pilot directs the navigation of the ship, but the master still retains overall command and control.The freedom that the master gives to the pilot varies from master to master but also depends upon the circumstances in which the pilotage takes place. The master of a large foreign-going ship entering a difficult channel will tend to adopt a more passive attitude to the pilot than a coastal master who knows the area intimately.
The way in which the law interprets this relationship, and the rights and responsibilities of each to the other and to third parties, obviously differs from country to country and the following is therefore offered as a general overview. In many legal systems, the customary rules and statutory enactments provide a confused and sometimes contradictory picture, which tends to the conclusion that a master,when considering how to operate with a pilot, should be guided more by common sense and self-preservation than by precise legal principles.
The pilot owes a professional duty of care to those whom he serves, which assumes a knowledge and awareness of local conditions. The pilot is therefore generally liable to the shipowner, and to third parties, for a failure to exercise such care. In practice, however, such a responsibility is largely illusory since the pilot, as an individual, has few assets with which to satisfy any award of damages. Also the extent of his liability is often restricted at law or limited in amount, although he may also be subject to criminal sanctions under any relevant legislation as a result of his actions.
Where there is injury or damage to the property of a third party caused by the pilot’s negligence, the third party will naturally look to the shipowner for compensation. There may be a possibility of a recourse action against the harbour authority, port commission or canal company that employs the negligent pilot. If, however, the relevant body merely acts as a licensing authority, it will not be liable for pilot error. Pilot associations are also generally immune from liability for the actions of their members.
Given the lack of accountability of the pilot, it is tempting to ignore any detailed legal analysis of the relationship between the master and the pilot. This would be a mistake since the principles which have been articulated in various legal jurisdictions provide a well considered view on the way in which the relationship should operate most effectively. In terms of engagement, the master is only legally bound to employ a pilot in an area of compulsory pilotage. However, the master may be found liable for not employing a pilot where it can be shown that such failure caused or contributed to an accident. Whilst the pilot may assume control of the navigation of the ship, this does not relieve the master of his command of the ship. The master therefore retains both the right and the responsibility to intervene in the actions of the pilot, although it has been stressed on many occasions that the master is only justified in intervening, when the pilot is in charge, in very rare instances; for example, where he perceives the threat of an imminent danger to the ship or when the pilot is obviously incapacitated in some way.
There is therefore a divided authority, with both the master and the pilot continuing to have active roles that may potentially conflict. The pilot is responsible for, and should be left in charge of, navigation in terms of speed, course, stopping and reversing, but the ship’s master is responsible for all other matters such as maintaining a proper lookout. And the pilot is entitled to expect a well-regulated and seaworthy ship, that provides him with proper assistance and information.
Towage has been defined as ‘a service rendered by one vessel to aid the propulsion or to expedite the movement of another vessel’. Towage can take place in many different circumstances and can be part of a salvage or wreck removal operation following a casualty. It can also occur when a ship is in distress in order to avoid a casualty occurring. In the vast majority of cases, however, towage is a routine operation, particularly within the confines of a port. This is referred to as customary towage.
An agent of the ship, or the charterer, usually requests the services of a tug for port towage. Once engaged, however, the tug may take its orders from any pilot on board the towed ship and therefore the presence of tugs adds to the complexities of the relationship between the master and pilot referred to above. The pilot should be fully aware of each tug’s power and handling characteristics but the responsibility for engaging tug assistance, where required, rests with the ship’s master, and the ship’s master may be found negligent in not engaging a tug to assist where the circumstances warrant it and an accident occurs. Every shipowner should leave the question of tug assistance to the discretion of the master who must make a judgment based on the prevailing circumstances.
The rights and responsibilities of the tug and the towed ship, with regards to each other and in relation to third parties, are generally dealt with in the applicable towage contract. In most cases, the contract will be based on industry standard terms that lay down clearly the division of responsibility between the two entities. Specific port user agreements exist, but standard form contracts, such as the UK Standard Towage Conditions, the Netherlands Towage Conditions or the Scandinavian Conditions, are used in most cases. These all favour the tug, although in the USA, the Supreme Court has held that any clauses in a towage contract purporting to relieve the tugowner of liability for negligence are invalid as being against public policy. In Japan, the tugowner must exercise due diligence to make the tug seaworthy at the time she leaves the port and is liable for any damage to the tow caused by any failure to do so. Generally, in the absence of clear wording to the contrary, a court will apply as an implied term of the towage contract that the tug owner warrants to exercise due diligence to make the tug seaworthy at the commencement of the towage.