Our friends over at Maritime Executive have a well-stuffed mailbag following a thoughtful article by Joe Keefe, “Game Changer: Reflecting Back on the COSCO BUSAN Debacle”, which had MAC mulling over Texas Chicken, Suez pilots and courtesans.
Says MarEx editor Joe Keefe: “ (The article) 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.”
MAC was reminded of a complaint by a pilot about the IDESSIT/American Club produced series of pilotage videos Stranger on the Bridge which strongly recommends that a master monitor the pilot. The complainant said, dismissively “What? is the master supposed to jump on the pilot when he makes a mistake?”
The answer is “Yes, absolutely”. One MarEx correspondent quotes a New Zealand Pilot Card: “‘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’”, so MAC, and the great majority of masters he’s spoken with aren’t alone.
In fact, if being conducted by a Pascagoula pilot it is vital to monitor because, under the term of the Pascoula Bar Pilot’s contract with vessels the master and shipowner accept full liability for any damage caused by a pilot’s error, the pilot bears no liability, which of course means he, or she, bears no responsibility.
The essence of responsibility is liability, hence MAC’s reminder of the courtesan’s privilege – influence without responsibility.
Pilot and master do not, therefore share responsibility because they do not share liability.
A letter from another good friend of MAC’s, Pilot Mag editor John Clandillon-Baker says: “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.”
Newspaper editors and ships’ masters share a common legal oddity. In most jurisdictions a company employee is not personally liable and cannot be sued for the outcome of their decisions. Masters and editors are personally liable for the outcome of their decisions and the decisions made by their subordinates. The essence of the Pascagoula Bar Pilots is that the pilot is not an independent professional but a servant of the company which contracts him for his professional services. As such, he is subservient to the master of the vessel and the master much accept responsibility for the expertise of a pilot whom he may not know in waters he doesn’t know and if anything goes wrong the master pays.
This would appear to conflict with the best practices advice of the American Pilots Association, APA, which states that a pilot is not part of the bridge team because: “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.”
Therefore, in the APA’s view, a bridge team’s duties conflict with maritime safety. It is also implicit in that statement that the pilot is not a subordinate of the master.
Although the APA states “If the role of the pilot is an unclear issue, it is only because some people want it to be unclear or confused” it does nothing to clarify the issue in its best practices.
APA seems not to understand the concept of a bridge team. Anyone on the bridge participating in, and with the objective of, safe navigation of the vessel is a de facto member of the bridge team because safe navigation is the objective of the bridge team.
Also implicitit the APA best practices is that the pilot only need tell the master what he thinks the master should know, not what the master wants to know. The pilot is not required to tell the master his intentions until and unless he choses to do so.
Repeatedly pilots’ organisation state that a master may dismiss a pilot and ask for another one if a pilot is deemed to be incompetent or incapable of carrying out his duties. In the case of Cosco Busan, and several others, a pilot’s fatigue or the influence of medication, has not been readily apparent. A master also has the right to dismiss a pilot if the vessel is put into a situation of extreme danger. This latter point might have been workable in the age of sail when 5 knots was good speed but given modern speeds by the time a vessel is in danger it’s too late to fire the pilot and, indeed, may make matters worse.
Not a single American pilot organisation has suggested at which point the master of the Cosco Busan should have dismissed John Cota as pilot. When they identify that moment is when they should stick their heads above the parapet, yet they place the blame on the master for the contact, allision, with the San Francisco-Oakland Bay Bridge.
A stroke of common sense comes from a legal analysis forwarded by the chairman of the UK Pilots Association, John Wilson.
To cut to the chase, a pilot is given a special privilege and licence to conduct his profession. With that privilege comes a duty and responsibility to the client and to society as a whole. As a professional, a pilot is liable for the errors he makes.
A pilot is, therefore,in the same position as a doctor. A doctor is only an advisor, the patient can chose to accept or dismiss the doctor’s advice, but if the patient chooses to accept it then the doctor is liable for any negative outcome.
Pilots are given special and exclusive privileges and are well paid for their services, in return they should be held liable for their professional advice in pursuit of those privileges. You expect the same of your dentist and optician.
Then there is the issue of intimidation. What counts as intimidation depends upon culture. One of MAC’s British clients tell the story of a Suez Canal pilot who spent the entire passage telling him that he, the pilot, could cause as much damage as he liked to the vessel or the canal infrastructure, and get away with it – the master and the shipping company would be held to blame in much the same way as in same in Pascagoula.
A MarEx correspondent tells this story: : “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.
The Chinese master of the Cosco Busan behaved in exactly the same way. The pilot,the American professional, gave his professional advice that it was safe to depart the berth at Oakland. The master accepted that advice in the same way a patient would accept the advice “take two asprin and call me in the morning”.
Which gets me to Texas Chicken, sometime called the Texas Two-step on the Houston ship canal. It is a scary procedure for a master and quite fun for the pilot. When two ships are to pass the pilots on each ship aim at each other’s bow and, at apparently the last moment give a starboard 20 order. Pressure from the bows keep the vessels apart but, as the pass go on, another order is given to avoid suction from the stern of the vessels. It’s an impressive manoeuvre. But…
But, as can be found on the internet, pilots tell of occasions when the master has asked ‘did you see that ship?’ and the pilot has mischievously said ‘what ship?’. Should the master now relieve the pilot? And at which point in that manoeuvre, since the pilot did not brief the master adequately, should the master have relieved the pilot?
Pilots need to be taught how to deal with other cultures in a non-intimidating way. If American pilots are going avoid responsibility for their actions then “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” should be given verbally and on every pilot’s card. None do so, and, indeed, the San Francisco Bar Pilots card makes it clear that the pilot is in charge.
American pilots should also learn to accept responsibility for their own actions. Until they are liable for those actions, and while they continue to make the master liable for the pilot’s incompetence or inability then no master should trust them.