Admiralty Law Part 15

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of Admiralty Law will be explored.

Duties and liabilities of ports and pilots

1. Statutory duties and rights of port authorities

   Harbour authorities have the power and the obligation under the Pilotage Act 1987 to decide whether and what type of pilotage services are needed in their area for each type of ship, and whether pilotage should be compulsory. In addition, such harbour authorities are authorised to provide the pilotage services, to set the qualifications of pilots, to authorise pilots and to disqualify incompetent pilots.
   Compulsory pilotage is determined by the issuance of pilotage directions by the harbour authorities, empowered under the Pilotage Act 1987. The competent harbour authority may charge for the pilotage services provided.If a ship is navigated in an area of compulsory pilotage without a pilot or without a master or first mate holding an exemption certificate, then the ship’s master is guilty of an offence and liable on summary conviction.

   A review of the Pilotage Act 1987 undertaken by the UK Department of Transport has led to the development of the Port Maritime Safety Code.

   While the review and the code identified significant improvements that need to be made in respect of the training and licensing of pilots and advocated the use of port passage plans, it did not suggest any changes in the liability regime applicable under the Pilotage Act 1987, except perhaps in clarifying that the performance required by the competent harbour authorities in order to discharge their statutory obligations under the Act must be consistent with the Port Maritime Safety Code.

2. Duties of pilots and liabilities

   Pilots are liable under the Pilotage Act 1987 for acts or omissions which cause ‘loss, destruction or serious damage’ or ‘personal injury or death’ (s.21(1)) only where they act deliberately or under the influence of drugs or drink, or their act or omission amounts to a breach or neglect of duty. In such circumstances fines and prison sentences may be imposed upon pilots. The criminal liability provisions under s.21 are not restricted to authorised pilots.
   The Pilotage Act 1987 limits the civil liability of an authorised pilot to £1,000 plus the pilotage fee. The latter can be up to a few thousand pounds for larger vessels, though this varies between ports.There is no limitation for unauthorised pilots under the Pilotage Act 1987. Presumably unauthorised pilots would be considered as crew and would be protected against third party claims by the 1976 LLMC as amended.

3. Liability of the harbour authority

   The harbour authority is not liable just because it has licensed a pilot whose acts or omissions have caused damage. Fault by the competent harbour authority itself must be demonstrated. Arguably, the fault of the competent harbour authority may be based most probably on a breach of its statutory duties.
   Pilots usually have a contractual arrangement, normally a contract of employment, with the harbour authority. The question then arises whether the negligence of the pilot imposes vicarious liability on the employing harbour authority or on the shipowner, or on both.Up to the coming into force of the Pilotage Act 1913, case-law supported the proposition that in respect of compulsory pilotage the shipowner’s liability was excluded. However, the introduction of s.15(1) of the Pilotage Act 1913 reversed the position (Workington Harbour and Dock Board v Towerfield (Owners) (The Towerfield) [1951] AC 112). The relevant section states:

   “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.”

   Thus in The Esso Bernicia [1989] 1 Lloyd’s Rep 8 the House of Lords held that no vicarious liability attaches to the general employer of a pilot for two reasons:

   1. Because the pilot navigates the ship as a principal, not as a servant of their general employer.
   2. Because of the application of s.15(1) of the Pilotage Act 1913.

   The current relevant provision is s.16 of the Pilotage Act 1987, which states:

   “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.”

   Taken within the historical context of s.15(1) of the Pilotage Act 1913, s.16 of the Pilotage Act 1987 has been held to impose liability for the negligence of a compulsory pilot on shipowners in respect of claims by third parties and make the pilot the servant of the shipowner in all respects, even where this concerns the damage suffered by the shipowner.

   The liability of the competent harbour authority is anyway limited under the Pilotage Act 1987 in respect of loss of or damage to the ship under pilotage and any property on it, loss of or damage to any other ship or property on board such ship as well as to any other property or rights (s.22(3)). The applicable limits of liability are calculated by multiplying the number of authorised pilots employed by the harbour authority by £1,000.

   There is no right to limit liability for loss of life or personal injury under the Pilotage Act 1987. Consequently, for such claims the liability of the harbour authority or any authorised agent is unlimited.

   As explained, s.16 of the Pilotage Act 1987 provides that the liability of the owner and the master of the ship is not affected in any way for ‘any loss or damage caused by the ship or by the manner in which it is navigated’. This provision has been deemed to impose liability on the shipowner in respect of the acts or omissions of the pilot during compulsory pilotage, and to assimilate it to the long-standing position in respect of non-compulsory pilotage that the pilot’s actions make the shipowner vicariously liable (The Cavendish).

If you have any questions or require any additional information, please contact our lawyer that you usually deal with.

This article is written by our Principal Associate, Chakaravarthi