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MarEx Mailbag: Reader Response to Last Week's Editorial

Last week’s editorial entitled, “Uncharted Waters: Criminalizing the COSCO BUSAN incident” attracted some interesting responses from MarEx readers response. More than one “took me school” on a couple of points of accuracy. That piece talked about the inevitable changes in liability that look to be coming down the road, why and more importantly, what that means for maritime commerce. You can read last week’s editorial by clicking HERE. Read on to see what MarEx readers had to say on the subject:
 

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Joe:

That is a good article. I remember as a fledgling Third Mate on my first ship, the Captain told me “The safest thing to do with a ship is tie it up to a dock and take everyone off. As soon as one person steps aboard or the ship is undocked, there is a potential for an accident. Everything we do is a calculated risk.”

Bob in California.

MarEx Remarks: No argument from us there. Read on:
 

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Dear Joseph;

Not pointing specifically at the 'COSCO BUSAN', it appears we have reached a threshold of linking poor human performance (HP) activity with criminal behavioral characteristics and thus the severe consequences in an environment of critical sensitivity.

The job of 'pilotage' by a certified pilot/master or officer of a ship entails having a stringent 'self-awareness' disposition; unfortunately previous studies have found that a person suffering from a diminishment of human performance factors is essentially not capable of 'self-diagnosis'; even for the best of us. In lieu of good BRM, other navigators on the bridge may feel uncomfortable trying to guestimate the pilots 'wakefulness', demeanor or deterioration of HP factors due either to inherent 'peer pressure' or other 'insecurities'. Thus the conundrum prevalent, despite our best intention of prescribed best practices and procedures.

One solution may be, for a person piloting or a person in a critically sensitive position, to have a real-time algorithmic device attached to the wrist/arm, which monitors the blood pressure and heart rate and if it detects a percentage deviation from a calibrated norm of the calibrated state of wakefulness of the person, then a quick set of eye and/or tactile responsiveness tests are initiated which - if the person fails;.... then a substance, which activates the 'Orexin' protein in the brain , which keeps humans awake, could be taken orally or injected. One example of such an agent is Provigil.RTM (Modafinil) , which acts on the central nervous system, and was developed as a treatment for excessive daytime/nightime drowsiness. Upon finding positive results for HP impairment, the person acting as pilot also has the option of standing down from his assignment if he/she wishes not to take any drug/substance in order to maintain his/her 'alertness'.

Cheers

Capt. Gary Kassbaum
Senior Regional Investigator
Transportation Safety Board Of Canada

MarEx Remarks: Okay, all of that is way over my head. But, I thought it interesting, nevertheless. The next item is the official policy of the American Pilots’ Association, sent to me by others, regarding “The Respective Roles and Responsibilities of the Pilot and the Master.” This document was adopted by the Board of Trustees of the America Pilots’ Association on October 8, 1997. So, it would appear that my view of things might be a little dated. To be fair, I think there are more than a few others who were not aware of this policy. Read on:
 

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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.

MarEx Remarks: Read on to see another letter, focused on the same concepts. I don’t mind being taken to school once in a while. I still contend, however, that in the past, the vast majority of prosecutions in these cases tended to focus on the ship and not the pilot. That’s probably going to change.
 

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Dear Mr. Keefe:

It would be inappropriate for me to comment on the Cosco Busan incident as legal proceedings are pending, but I would like to respond to your comments on the change of the” legal status” of pilots. You suggest that pilots’ legal status has changed from mere yet vital adviser to something else. It is true that some state statutes such as the Louisiana statute may support an inference that a pilot’s function is merely as rendering “advice or assistance with respect to pilotage”, but such statements are misleading from a legal point of view. The Federal Statute 46 U.S.C. § 8502 provides in part: “. . . A coastwise seagoing vessel shall be under the direction and control of a pilot . . .” (emphasis added). That is a more accurate statement. Although I do not usually refer to CJS (Corpus Juris Secundum), I will do so because I have read the cases on which its based and which it cites in footnotes. The following is a simple but accurate statement of the legal status of pilots:

“Generally, while exercising the functions of a pilot, a pilot is in sole control of the navigation of the ship, and the pilot's orders must be obeyed as, in effect, the orders of the master. While a pilot who is in charge of a vessel supersedes the master insofar as the navigation of the vessel is concerned, the master does not surrender the vessel to the pilot and the pilot is not the master. Thus, the master is still in command of the vessel, notwithstanding the presence of a pilot.] There are, however, occasions when the master may, and in fact must, interfere with, or even displace, the pilot.

“If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly. Thus, a vessel's master is entitled to assume that a compulsory pilot is an expert on local conditions and practices, until it becomes manifest that the pilot is steering the vessel into danger.

“In order to be justified in displacing a pilot, the master must be certain that the pilot is, for some reason, incompetent. The master or other officer is generally not bound to interfere with, or to displace, the pilot, if the pilot is not making an obvious mistake, or danger from the pilot's acts is not imminent, and has no discretion in selecting or firing a pilot, or taking control from him or her, absent an extraordinary situation. Accordingly, only if the pilot displays gross negligence does the master have the authority to remove a compulsory pilot from the helm or to countermand the pilot's orders. Where the master does so, the master acts at the risk of penalty for a violation of applicable regulatory provisions. In some jurisdictions, even where the master deems a compulsory pilot incompetent, the master is not under an absolute duty to displace the pilot.” (footnotes omitted)


This statement is supported by a leading treatise, A Parks & E. Cattell,Jr., The Law of Tug, Tow and Pilotage (1994) at p. 1007 where the authors state:

“Even though the pilot has ‘charge of’ the ship and to him belongs the whole conduct of the navigation of the ship, the owners of the vessel are responsible for the sufficiency of the ship and it equipment, the competency of the master of the crew and their obedience to the pilot’s orders, which under ordinary circumstances, must be obeyed.”

The classic old cases of the Oregon and the China decided by the Supreme Court make it clear that pilot is not a mere “adviser” but is in charge subject to the ultimate duty of the master in intervene in unusual situations. I have purposely omitted excessive legal citations to keep this response simple.

By the way, I really enjoy your publication. It is not only interesting but very informative to an academic maritime lawyer.

Robert Force
Niels F. Johnsen Professor of Maritime Law
Director Emeritus, Tulane Maritime Law Center
Tulane Law School / rforce@tulane.edu
www.law.tulane.edu

MarEx Remarks: The author gave me permission to use his remarks online. The Tulane Law School is a leading authority on admiralty issues. I think MarEx readers -- and this writer -- can take guidance from them on this one. Read on for one more:
 

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Mr. Keefe:

I fully agree with your assessment of the changing waters of pilot responsibility, however, you are missing an entire sector of the industry when you talk about the deep draft vessels. This would be the coastal and brown water fleets of tugs and barges. I am the captain on an ATB that typically carries about 100,000 bbls. of black oil, and have worked units that carry upwards of 370,000 bbls. For the most part, the captain of these vessels acts as his or her own pilot and assumes both the responsibility of captain and pilot. We feel all the economic pressures that a ships captain or pilot does, to go out in all conditions of weather, but we also have the pressure of being a direct employee of the company which adds fear of employment to the mix. Between the Coast Guard, terminal, customer, and the sales department, the pressure to go in fog or poor weather is ever increasing and getting to the point of diminishing returns on the career. Thank you for the informative articles and please try not to forget those of us that aren't in the sector of ships. We too have an impact on the economy and environment, and play a vital role in our industry afloat. Thanks,

Name withheld

MarEx Remarks: I withheld the gentleman’s name -- to be fair, he gave me permission to do so -- but he also gave his vessel’s name, etc. I’d hate to be the one to cost him his job. Still, he brings up an excellent point: typically, these Masters make considerably less than their pilot counterparts, with commensurate responsibilities and endure pressure directly from their employers. More than one person has said to me over the years, “If I don’t get the ship underway, they’ll bring someone down who will.” On the other hand, that’s getting a bit harder with today’s maritime manpower shortages.

Link to newsletter article: http://www.newsletterscience.com/marex/readmore.cgi?issue_id=292&article_id=3075

Link to newsletter archive: http://www.newsletterscience.com/marex/archive_view.cgi?issue_id=292