MarEx Mailbag:
MarEx readers weigh in by the dozens on pilot issues and the COSCO BUSAN. Last week, our lead piece referenced the DOJ’s most recent press release on the COSCO BUSAN allision, the fate of the pilot in that matter, and the potential ramifications for marine pilots everywhere. The article, entitled, “Game Changer: Reflecting Back on the COSCO BUSAN Debacle,” was, far and away, the most widely opened article in this e-newsletter in more than two years. Not surprisingly, the article also triggered a flood of mail in similar volumes; too numerous to put all of them on line this week. Typically, I address each letter with a few notes of my own, but this week, I think I will let the majority of these entries stand on their own merit. You can read our July 30th editorial by clicking HERE. In that editorial, we asked the following question: 1. What is the relationship of the Pilot and his responsibilities to the vessel and the Master? a.) The Pilot is in command of the ship; b.) The Captain and the Pilot share responsibility; c.) The Pilot is an advisor to the Vessel and Master; or d.) None of the above. Our readers weighed in on the matter in substantial numbers. Read on to see what they had to say on that subject:
Good morning, I understand that one of my colleagues has also responded to you, and I now attach some documents that assist in providing answers to the questions you posed in the Cosco Busan article. Regards, Joe Wilson / Chairman / UKMPA
From: John Clandillon -Baker. UK pilot & Editor of The Pilot magazine (UK) Joseph, I refer to your well balanced and informative article regarding the consequences of John Cota's jail sentence. You are entirely correct that this ruling has set a precedent which will impact on pilotage operations, not just in the USA, but also around the world. At the end of your article you pose the question: 1. What is the relationship of the Pilot and his responsibilities to the vessel and the Master? a.) The Pilot is in command of the ship; b.) The Captain and the Pilot share responsibility; c.) The Pilot is an advisor to the Vessel and Master; or d.) None of the above. This question has been the topic of entire seminars so it is almost impossible to answer in a few paragraphs... In my opinion, up until the John Cota verdict, the answer would seem have been (d) because the Captain always has command as such is solely responsible for the safety of his ship. In the Zim Mexico III case in 2006, Captain Schroeder was found guilty because "the judge also instructed the jury, in essence, that the captain of a vessel, under the applicable Code of Federal Regulations provisions, is responsible for the negligence of all his subordinates on the vessel, including the pilot". The Cosco Busan case has overturned that and confirmed a growing opinion that a pilot cannot walk away from an incident with immunity if his actions are deemed to have contributed to the incident. The answer to your question would therefore now seem to be b) but with responsibility for the vessel now placed more on the pilot than the Master. A formal definition of a pilot is contained in the UK merchant Shipping Act : "pilot": any person not belonging to a ship who has the conduct thereof A court ruling (Tactician 1907) defined the word "conduct" with respect to the pilot: The judge 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 Captain always has "command". and the pilot has the "conduct" of the vessel which places an enormous responsibility upon the shoulders of a pilot, far in excess of any "advisor". Ships are designed to make optimum passages between ports. Bridge teams are trained to safely navigate ships between ports and are instructed to give all shipping and land a wide berth of miles. Pilots deal in metres! So, when entering or leaving port, the ship is operating in an environment for which it wasn't designed and the "bridge team" is operating in an environment for which they haven't been trained. The pilot is a specialist, trained to handle ships safely in a specific port and because the Captain and his bridge team are in unfamiliar surroundings it is inevitable that they will find it difficult to challenge the pilot and, as a consequence, risk of an accident is considerably enhanced. Most pilotage investigations now focus on the Master / pilot exchange and it is therefore more important than ever that the pilot, even if he feels that his comments are falling on deaf ears, explains in detail the intended passage and manoeuvre. With respect to this, the ship's Voyage Data Recorder (VDR) can be a pilot's greatest ally, because it will record a pilot's professional approach as well as any failings. A pilot's professionalism generally goes unremarked and when those in offices look out of their windows and see ships safely berthed alongside working cargo it is easy to dismiss the role of the pilot and question the need for paying for his services. The fact is that so long as pilots are invisible, they are doing their highly skilled job well. Every day, the world's trade is kept moving efficiently as thousands of ships enter and leave port, usually running on very tight operating schedules. Many of these ships will have been handled in marginal conditions at the absolute limits of operational parameters. Being fully aware of the commercial consequences of any delay, it is extremely rare for any pilot to refuse to sail a vessel or to abort an approach, but the criminalisation of John Cota will make pilots reassess risks in marginal conditions and the shipping Industry will have to understand and accept delays that will result as a consequence of the Cosco Busan ruling! John Clandillon-Baker
Mr. Joseph Keefe Dear sir: I am a teacher of Insurance Law in Lima, Perú. I was the founder of this Cathedra back in 1971 at the Catholic University (Universidad Católica) and now in the University of Lima ( Universidad de Lima). I was very interested in this Cosco Busan accident and Captain J. Cota situation. In my class I assume Mr. Cotas’ lawyer position ( Who is completely normal? Taking pills as lorezapan or darvon and others disqualify him to operate in San Francisco Bay?). There were very instructive debates with the students. Now with this resolution sentencing him to 10 months in prison for his part in this disaster, I agree with you that a lot of things have really changed. But to answer your questions, is my opinion that in a case like this, the Pilot is in command of the ship, but at the same time the Captain must share responsibility with him. As in most of situations in life, nothing is completely white or black. Thank you for your opinions, which I follow constantly. Truly yours, Javier Cavero-Egúsquiza
Hello, As a mariner who sailed in different types of vessels as deck officer the answer to your question I believe should be “(c.) The Pilot is an advisor to the Vessel and Master and (b.) The Captain and the Pilot share responsibility.'' How come no one is not taking responsibility of allowing vessels to sail in zero visibility in an area like SF Bay? Who is the authority, USCG? Salih Kocamis C/O / Marine Safety / Security Specialist
I've worked in the maritime industry on and off since 1983, but admittedly have only a few years of sea time, and only as an I.T. officer (i.e., no bridge experience). Nonetheless, having traveled by ship throughout this time, it has always been my understanding that once a harbor pilot took control of a ship, that the pilot had total responsibility for the ship. Perhaps I am mistaken in this impression, so I look forward to seeing the results of your poll, or a definitive answer provided by a maritime lawyer. Either way, I suspect that you are correct that this case will represent a sea change for the industry, one that is likely to see U.S. ports increasingly avoided (or rather more increasingly avoided), and possibly inspire many captains to consider early retirement, while causing many younger officers to reconsider taking on the responsibility (and the catch-22 exposure this ruling creates) of becoming captains. In short, it is likely to drive up the cost of shipping (the primary cost of good officers and the likelihood of bad officers incurring secondary costs), and to damage the U.S. economy specifically. As well, it is likely to make it far more difficult for ports to subcontract harbor mastering, returning that responsibility to marginally-qualified city bureaucrats, and resulting in operations that are both more incompetent and further from accountability. This ruling is likely to result in a loss of jobs, prosperity and result in real safety being thrown out the window, all for the sake of feeling guilty about the death of a few birds. Name withheld Upon Request
The Answer is C Dear Joe Keefe, I wouldn’t call the Cosco Busan Pilot getting jail time a game changer. A wake up call? Yes. I don’t have all of the facts, but from what I read about the actions this pilot took while performing his job, it was a great example of how not to be a pilot. I still hate to see any mariner get jail time over an accident. And I haven’t read anything about the reasons why the prosecutor was out for blood in this instance. Perhaps being unlucky enough to have an accident in the most environmentally regimented state in the union. Good luck getting the Captain out of China to stand trial. Just like the movie says “There Must be Blood”. The Master is responsible, period. Either this guy Cota was hung out to dry by a prosecutor who was schooled in maritime affairs or the law was stacked against him, or both. And he was probably prosecuted under civil law and not admiralty law. And by the way, if you haven’t noticed they’ve been throwing mariners in jail for making false statements and falsifying records for quite a few years now. So this guy isn’t the first mariner to go to jail for falsifying records or making false statements, and he won’t be the last. I take two things away from this trial outcome: 1) By law you are required to use our services. Many pilot organizations have had a legal monopoly on the “ship advisory” business, maintained thru cozy relationships with the local political forces. And of course you have the law on your side. You have to use our service or you can’t come in past the line of demarcation. Well this is a perfect example of the law being a double edged sword. Just when you think you can’t be held liable, BAM you’re in jail. 2) Standards and the upkeep thereof. There are national standards administered by the USCG for becoming a licensed pilot and physical standards as well. But most of the pilot organizations get to set their own standards as far as who is qualified to be considered to join the only organization that can provide pilotage in their respective ports. The biggest qualification for some pilot organizations is “who are you related too”. So when it comes time to tell a fellow pilot that his physical condition may be endangering the safety of a vessel, you may be telling your son or nephew or cousin or brother’s cousin’s niece, that they’re out of a $400k per year gravy train. That can be a problem for most folks. If you ask me the next big news to come out of this trial is that the bar pilots association is now exposed to civil damage lawsuits from the oil spill and bridge damage. Where’s your friends now? I’ll tell you where. They’re the kind of friends who hide behind rocks when the going gets tough. Can’t lose that next election. And besides there’s only a few dozen votes in the pilots association. I hope that what this trial does is demonstrate to pilots associations around the country that you better sort out your personnel standards and update medical records on all of your associates. And you better send them to your doctor. When I apply for jobs in the offshore industry I have to go to their doctor. And the physical is demanding. Lawsuits convinced the industry that you had better be subjective in your physical standards analysis and not some doctor’s objective opinion. Today you get to perform tricks in front a physical therapist who evaluates your body motion. Can the applicant pick up a 50lb load and carry it up stairs? Check. And we can see this coming in the new USCG physical examination form and standards. Another type of federally licensed pilot has to obtain a medical from an approved doctor, bi-annually. That would be airline pilots from an FAA approved doctor. Talk to the airline industry and see what they’ve learned about pilots and their physical condition. Except those pilots actually are in command. Best Regards, Tim Axelsson
Mr. Keefe; In answer to the question that you raise at the end of your editorial this week, I have previously sent you the statement of the American Pilots' Association on the Respective Roles and Responsibilities of the Pilot and the Master. I have attached that statement. Since 1997 it has represented the official position of the piloting profession in the United States. It is well-known and recognized as an accurate description of not only what actually happens on the bridge of a ship but also of what pilotage law in this country expects from the pilot. If the role of the pilot is an unclear issue, it is only because some people want it to be unclear or confused. Paul G. Kirchner Executive Director - General Counsel American Pilots' Association MarEx Editor’s Note: I said that I would not comment too much on what our readers had to say this week. I do feel compelled to make one point here, however: Just because the APA says that it is “policy,” does not make it law. I see nothing here that is codified. But, the next letter does include language that IS law. Mr. Kirchner presumably speaks for a significant portion of America’s marine pilots and he deserves to be heard. Nevertheless, I wonder how APA policy squares with the new Pascagoula “Terms and Conditions” letter or, for that matter, the policies of the state of Oregon, as set forth by Oregon Board of Maritime Pilots. Read on to see that position:
Mr. Keefe: In response to your question: what is the relationship of the pilot and his (her) responsibilities to the vessel and the master? Under Oregon state law, a licensee (pilot) is at all times the servant of the vessel being piloted and its owners and operators (ORS 776.405). Such services are advisory in nature only, the master of the vessel remaining at all times in full command of the vessel and empowered to relieve the licensee of duties (ORS 76.520). The master or person in charge of any vessel may refuse to accept the services of any particular licensee and shall call for another licensee, in which case the vessel and the owners, operators and agents of the vessel are liable only for the services of the licensee employed (ORS 776.435). Susan Johnson, Administrator Oregon Board of Maritime Pilots
Dear Mr. Keefe, Good Day, I read your article ‘Game Changer: Reflecting on the COSCO BUSAN Debacle’ with interest & must admit that I absolutely agree with your conclusion about the game having changed. I am a Merchant Marine myself & have called several ports in various parts of the world including the United States. I have been in command of VLCCs/ULCCs for the past 3 years now & felt like sharing my experiences, especially from an Asian’s perspective, due to the ‘High Power Distance’ societies that exist in Asia. Even though we all know that during the vessel’s pilotage, the Pilot works only in advisory capacity & the vessel’s command actually lies with the Master (the only exception being Panama Canal), there are some influencing factors however, that turn this Master-Pilot relationship the other way around! In most countries, ie; Singapore, Japan, India, Saudi Arabia, Indonesia, UAE, etc., the Pilots are employed directly by the Marine Authority, ie; MPA (Maritime Port Authority) in case of Singapore. The same authority also has the mandate to ensure compliance with Port State Control requirements. Consequently, the Pilots are also authorized to act as PSC inspectors, if required. This special authority of the pilots automatically demands that extra ‘respect’ from the Master, which dilutes the original Master-Pilot relationship. This argument may not be valid for a country like the United States where the Port State Control is the US Coast Guard, an organization that is totally disconnected from the Pilotage Authorities or Private Companies providing pilot services. Another factor to consider, I feel, is the timid attitude of Masters & Ship’s Officers, who mostly come from the third world countries & are not bold enough to point out the errors during the Pilotage passage. I have personally observed an Asian Master, who wouldn’t leave anything to chance with Asian Pilots when in Asian / Middle Eastern Ports, however was reluctant in pointing out the pilot’s minor errors during a river passage in the United States, where two pilots on the wheelhouse were going on chatting endlessly, discussing personal & social issues with an immensely complacent attitude towards the job they actually came for. In fact, most of their helm orders sounded so seamless with their personal conversation, that it was extremely difficult for the helmsman to figure out where the ‘PORT TWENTY’ was concealed between his wife’s shopping & his son’s new boat with the Yamaha outboard! It was indeed surprising to see a Ship’s Master with over 2 decades of command experience under his belt, act in that intimidating manner, putting the safety of his vessel & crew at risk. When asked for a clarification by me after berthing, his explanation was equally shocking! “We must be courteous & extend hospitality to all Port Officials” was his answer. Having said that, it is worth mentioning here that the New Zealand Pilots follow one of the best Master-Pilot exchange procedure that I have seen, which includes discussion on the entire passage from pilot station to berth, with details on extraordinary helm orders to be used for certain sharp turns, strengths & limitation, of the tugs & tug masters and an explicit request; Quote ‘I am just the pilot & am here in an advisory capacity. Please feel free to bring any error of judgment, helm or engine order, to my notice’. Unquote This statement goes a long way in making the bridge atmosphere unintimidating for the third world officers, & enhances the overall effectiveness of the bridge team. There is more emphasis on safety of the passage rather than on maintaining berth schedules. In fact, on one occasion, our vessel, a 50K DWT Product Tanker was drifting off the Dunedin Pilot Station for over an hour, because the pilot boat went back to base to fetch the Master-Pilot information exchange forms, Passage Plan & checklists. Regards, Manbir Waraich Candidate, MBA in Global Management
I think given the ISM and "Bridge Team Management" is there any doubt that everyone and ANYONE is equally responsible for ANYTHING that happens? Government and Civil lawyering have taken any semblance of reasonable incident analysis and thrown it out the window. I am surprised the Chief Steward was not brought up on charges for feeding triptofane laced turkey to the crew! Mark VandenBerg
1. What is the relationship of the Pilot and his responsibilities to the vessel and the Master? a.) The Pilot is in command of the ship; b.) The Captain and the Pilot share responsibility; c.) The Pilot is an advisor to the Vessel and Master; or d.) None of the above. Dear sir, In regards to the discussion above and the subject I think that it is a very difficult query. Since always the captain has been responsible for the vessel an the pilots have been advisors only. The area of responsibility differs of course because very often the pilot has the Conn on the vessel. I think that in the first case we have to refer to ISM Code element 5.2. (Masters responsibility and authority) which defines Masters overriding authority to decide on the safety of the vessel. In this case we can say that the word of the master is for sure the last word and there is no pilot, procedure or superintendent who can override it. I think that our answer lays over there. However, we as a ship managers will have to implement that policy on board our vessels, and masters should keep in mind the same. The relationship between the master and the pilot I think should be the same as the relationship between the master and the officer in charge. OOW has the Conn until the master takes over and the same is with a pilot I would say. If the master says to pilot I am in charge, I think then the pilot is not conning the ship any more. Master can do that by his own decision while the pilot can take the Conn only if the master is "on board with that". However if it comes to an incident and following the practice of DOJ, we as managers will try to put as much responsibility on the pilots as possible. Maybe this approach is not fair but in any case this is how will it happen. Brgds Marko Marko Sandalic Marine HSE Advisor Jan De Nul Group, INTERNATIONAL OPERATIONS