North advises on Master/Pilot division of responsibility

North of England Club has updated members on the common entry in a bridge logbook – “Vessel on Master’s orders and Pilot’s advice”.

Although this is a common entry used in the bridge logbook when entering and leaving a port, what it means is often less clear.

Dimitra Capas (Solicitor), and John Southam (Executive (Loss Prevention)) said that it was “well known that in the vast majority of places around the world the presence of pilot on the bridge does not relieve the Master or officer in charge of the watch from their duties or obligations for the safety of the ship”. Yet there were still many cases where the Master appeared to relinquish control to the pilot or failed to challenge a potentially unsafe instruction, and that this sometimes resulted in an incident.

If the pilot informs the Master to conduct a manoeuvre that results in an incident, would that prevent the Master being responsible? The writers said that it would almost certainly not, because ship management and navigation in most cases remained the responsibility of the Master.

In the unsafe berth case The Stork, one of the issues was whether the Master acted reasonably when following the pilot’s advice on anchoring, despite the Master having issues with the instruction. The court noted that pilots possessed intimate local knowledge and concluded, “Of course, the master cannot transfer his responsibility to the pilot, but a master would be very imprudent if in a place of this sort he disregarded the advice of those with local knowledge unless he had very good reason for doing so”, said North.

This meant that the Master – in consultation with the bridge team – should assess any instruction given by the pilot to make sure that, if the pilot’s instruction is carried out, the vessel would be safe.

In another case, The Vine, it was considered whether a terminal had a system to ensure the Master was informed of important features of the berth. The court decided that: “The fact that the pilot may have such knowledge does not detract from the importance of the master having such knowledge. For the master is responsible for the safe berthing of his vessel even though he may be advised by the pilot…Of course, orders will be “advised” by the pilot who in reality will determine the appropriate orders but the master must be in a position to reject the pilot’s advice if he considers it to be unsafe.”

Capas and Southam noted that another common misconception was that the pilot’s suggestion constituted an employment order, which enabled an owner to hold the charterer responsible or be indemnified. Mr Justice Staughton was clear in The Erechthion that, while the orders of a harbour master to proceed to an anchorage were employment orders, the pilot’s suggestion as to where the vessel should anchor was a matter of navigation. Therefore the ultimate responsibility lay with Master. Although the charterer may pay for the pilot, this did not make the pilot the charterer’s servant. Accordingly, this did not mean that the charterer would be responsible to the owner for the pilot’s negligence (Fraser v Bee [1900] 17 T.L.R. 101).

The Club said that disagreeing with a pilot was easier said than done. Commercial pressure often made ignoring the pilot’s instructions very difficult. Masters were only too aware of the commercial consequences of missing a schedule or creating delays. However, North said that it was very important that this was not an overriding factor in the Master’s decision.

Should the Master choose not to follow a pilot’s instruction, and this resulted in a delay or extra expenditure, a dispute would most likely follow. But if the Master chose to follow the instruction and it resulted in an incident, again a dispute would follow.

The Club said that the best way for a Master to equip themselves was to get SOLAS on their side.

SOLAS Chapter V regulation 34-1 states:

“the owner, the charterer, the company operating the ship, or any other person SHALL NOT prevent or restrict the master of the ship from taking or executing any decision which, in the master’s professional judgement, is necessary for the safety of life at sea and protection of the marine environment.”

The Club said that, considering SOLAS chapter V was one of the best tools at a Master’s disposal, “they should ensure they remain in command and make a reasonable choice based on safety alone”.

It was also imperative that the Master gathered relevant contemporaneous evidence to prove that the choice not to follow the pilot’s instructions was reasonable.

North said that courts in the most part would sympathize with a Master who had considered the safety of his crew and the vessel and acted reasonably, even when there was a delay or additional expenditure as a result.

Should the Master follow the pilot’s instruction without thinking fully of the safety factors, and an incident occurred, then SOLAS Chapter V would work against the Master.