Human Element SessionHuman Element Session

Modernising Modernising Marine PilotageMarine Pilotage

Meeting the demands of the working Meeting the demands of the working environmentenvironment

Ravi NijjerRavi Nijjer19th International Maritime 19th International Maritime Pilot’s Association (IMPA) Pilot’s Association (IMPA)

ConferenceConferenceBangkok Bangkok

04 - 08 August 200804 - 08 August 2008

Human ElementHuman Element

Interpreted in the Interpreted in the broadest sense; pilot as broadest sense; pilot as the human element within the human element within the present working the present working environmentenvironment

Working EnvironmentWorking Environment Continuous downward pressure on costsContinuous downward pressure on costs

(Ports seeking greater channel efficiency by (Ports seeking greater channel efficiency by accepting larger and larger ships resulting in accepting larger and larger ships resulting in greater throughput but reduction in safety greater throughput but reduction in safety margins)margins)

Continuous development and availability Continuous development and availability of advanced technologies at lower and of advanced technologies at lower and lower cost that have the potential of lower cost that have the potential of radically transforming the nature of work radically transforming the nature of work including pilotage (GPS, GLONASS, including pilotage (GPS, GLONASS, Electronic Charts, AIS, VDR, e-nav etc)Electronic Charts, AIS, VDR, e-nav etc)

Working EnvironmentWorking Environment Availability & application of sophisticated safety Availability & application of sophisticated safety

management systems for managing critical tasks such as management systems for managing critical tasks such as pilotage (Safety Case – Jens Rasmussen & James pilotage (Safety Case – Jens Rasmussen & James Reason Model; slides 5-9)Reason Model; slides 5-9)

Increasing demands and very high levels of accountability Increasing demands and very high levels of accountability of professionals (Errors of professionals (Errors in professional judgment in professional judgment increasingly viewed as criminal negligence)increasingly viewed as criminal negligence)

Widespread awareness that major accidents in confined Widespread awareness that major accidents in confined waters can cause severe threats not only to ships, crews waters can cause severe threats not only to ships, crews and cargoes but also to the public, environment, property, and cargoes but also to the public, environment, property, and local and regional economiesand local and regional economies Zero tolerance for marine accidents but especially those Zero tolerance for marine accidents but especially those that involve loss of life and environmental pollutionthat involve loss of life and environmental pollution

Increasing criminalization of seafarers including pilotsIncreasing criminalization of seafarers including pilots Security Concerns (Application of ISPS Code in pilotage Security Concerns (Application of ISPS Code in pilotage

domain)domain)

ReasonReason Swiss Cheese Swiss Cheese

ModelModelBasis of IMO Accident Basis of IMO Accident

Investigation Code & also Investigation Code & also widely used in other high widely used in other high

risk industries from risk industries from Aviation to HealthCareAviation to HealthCare

Reason Swiss Cheese Reason Swiss Cheese ModelModel

Defenses

Reason Model of Accident Reason Model of Accident CausationCausation

Organizational Factors

•Communications

•Management Structure

•Incompatible Goals

Local Factors

•Morale

•Fatigue

•Equipment

•BRM, Procedures, etc.

Active Failures

•Mistakes

•Slips

•Lapses

•Violations

Accidents

Organization Task/Environment IndividualsDefenses

Latent Failures

Were the actions asintended?

Unauthorizedsubstance?

Were consequencesas intended?

Sabotage,malevolent

damage,suicide. etc

Medicalcondition

Substance abuse

without mitigation

Substance abuse with mitigation

YesNoYes

YesNoYes

No NoKnowinglyviolating

safe operations

procedures?

Pass substitution

test?

Historyoff

unsafeacts?

Were procedures available, workable,

intelligible and correct

Possible reckless violation

System induced

error

Deficiencies in training &

selection or in experience

Possible negligent

error

System induced

error

Blameless error but

corrective training or counseling indicated

Blameless error

Yes No

No

YesNo

Yes No

No Yes

Yes

Culpability Diagram James Reason

Traditional Pilot Centred Traditional Pilot Centred ApproachApproach

Origins in the notion of the pilot as Origins in the notion of the pilot as ‘an ‘an independent professional* man contracted independent professional* man contracted to navigate the shipto navigate the ship’’ predating modern era of predating modern era of mainly compulsory pilotagemainly compulsory pilotage

This notion reinforced by the perceived need This notion reinforced by the perceived need ‘to remove the pilot’s employer as far as ‘to remove the pilot’s employer as far as possible from all liability for pilot errorpossible from all liability for pilot error’’ after pilots formed associations or became after pilots formed associations or became employees right into the modern eraemployees right into the modern era

In Australia & other countries several pilot In Australia & other countries several pilot organizations setup on the above basis organizations setup on the above basis (Australian Reef Pilotage, Sydney Pilot (Australian Reef Pilotage, Sydney Pilot Service, Milford Haven Pilotage Ltd, etc)Service, Milford Haven Pilotage Ltd, etc)**Incompatible with a safety Incompatible with a safety management approach management approach

Traditional Pilot Centred Traditional Pilot Centred ApproachApproach

Structure based on best legal advice despite:Structure based on best legal advice despite:‘‘Nothwithstanding, anything in any public or Nothwithstanding, anything in any public or local act, the Owner, or Master of a vessel local act, the Owner, or Master of a vessel navigating under circumstances in which navigating under circumstances in which pilotage is compulsory shall be answerable for pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any loss or damage caused by the vessel or by any fault in the navigation of the vessel….’any fault in the navigation of the vessel….’ (U.K. (U.K. 1913).1913). Similar legislation in other countries Similar legislation in other countries

(In compulsory pilotage the pilot is in charge of (In compulsory pilotage the pilot is in charge of the navigation but in a legal civil liability sense the navigation but in a legal civil liability sense considered an adviser to the master)considered an adviser to the master)

Immunity of Pilot & Immunity of Pilot & EmployerEmployer

The civil immunity of the pilot and The civil immunity of the pilot and his/her employer withstood numerous his/her employer withstood numerous challenges from 1913 onwards on the challenges from 1913 onwards on the basis of basis of ‘lending certainty to ‘lending certainty to commercial dealingscommercial dealings’’ until the ‘ until the ‘Sea Sea Empress’Empress’ grounding at Milford Haven grounding at Milford Haven on 15 February 1996on 15 February 1996

Sea Empress Sea Empress Milford Haven 15 February 1996Milford Haven 15 February 1996

Sea Empress - Chain of Sea Empress - Chain of EventsEvents Sea Empress grounding Milford Haven - 15 February 1996Sea Empress grounding Milford Haven - 15 February 1996

MAIB Report and Recommendations - 27 March 1997MAIB Report and Recommendations - 27 March 1997 ‘‘Friends of the Earth’Friends of the Earth’ releases comments on MAIB Report releases comments on MAIB Report

and threatens private action against port - September 1997 and threatens private action against port - September 1997 Prosecution of Milford Haven Port Authority by U.K Prosecution of Milford Haven Port Authority by U.K

Environment Protection Agency under Environment Protection Agency under Water Resources ActWater Resources Act. . Port pleads guilty to criminal Port pleads guilty to criminal uninsurableuninsurable ‘strict liability ‘strict liability offence’ offence’

Port fined Port fined £4 million plus costs – 15 January1999. £4 million plus costs – 15 January1999. Deficiencies in port management highlighted in JudgementDeficiencies in port management highlighted in Judgement

Appeal Court reduced fine to £750,000 plus costs – 16 March Appeal Court reduced fine to £750,000 plus costs – 16 March 2000 after port pleaded financial hardship 2000 after port pleaded financial hardship Immunity of pilot and employer & legal barriers bypassed Immunity of pilot and employer & legal barriers bypassed by application of strict liability criminal lawby application of strict liability criminal law

MILFORD Haven Port Authority through its insurers paid MILFORD Haven Port Authority through its insurers paid International Oil Pollution Compensation Fund £20m ($50m) International Oil Pollution Compensation Fund £20m ($50m) over the Sea Empress oil spill, halting civil action brought by over the Sea Empress oil spill, halting civil action brought by the fund and Skuld P&I Club over the accident – 22 October the fund and Skuld P&I Club over the accident – 22 October 2003 2003 (Civil liability follows criminal liability)(Civil liability follows criminal liability)

Sea Empress - Basis of PleaSea Empress - Basis of Plea““The port authority created and then operated The port authority created and then operated a system which resulted in a system which resulted in Sea Empress Sea Empress attempting to enter the Haven… at a time as attempting to enter the Haven… at a time as late or later, in terms of proximity to low water, late or later, in terms of proximity to low water, than any comparable vessel had attempted than any comparable vessel had attempted previously. It thereby put (the pilot) in a previously. It thereby put (the pilot) in a position where as a direct consequence of the position where as a direct consequence of the management system operated by the port he management system operated by the port he could make an error* of navigation.”could make an error* of navigation.”Mr. Justice David Steel 1999Mr. Justice David Steel 1999 **Error seen as a consequence rather than a causeError seen as a consequence rather than a cause

Sea Empress - JudgementSea Empress - Judgement““It was not simply a question of furnishing It was not simply a question of furnishing a pilot who then commits an act of a pilot who then commits an act of negligent navigation dislocated from the negligent navigation dislocated from the system of training and classification of system of training and classification of pilots and from port control of navigation.”pilots and from port control of navigation.”Mr. Justice David Steel 1999Mr. Justice David Steel 1999

The cause of the accident linked to the port The cause of the accident linked to the port bypassing the legal barrier of setting up bypassing the legal barrier of setting up Milford Haven Pilotage Ltd as a separate Milford Haven Pilotage Ltd as a separate company & the pilots direct employercompany & the pilots direct employer

Sea Empress - Strict LiabilitySea Empress - Strict Liability““The danger of oil pollution is so potentially devastating, and so far The danger of oil pollution is so potentially devastating, and so far reaching and so costly to rectify that Parliament attaches a criminal reaching and so costly to rectify that Parliament attaches a criminal penalty to breach of section 85 even where no lack of care or due penalty to breach of section 85 even where no lack of care or due diligence is shown…. diligence is shown…. Strict liability is imposed in the interests of protecting Strict liability is imposed in the interests of protecting controlled waters from pollution.controlled waters from pollution.So although the Port Authority is fully entitled to rely strongly on its So although the Port Authority is fully entitled to rely strongly on its relative lack of culpability… it cannot reasonably hope to escape a relative lack of culpability… it cannot reasonably hope to escape a very substantial financial penalty when its commission of an very substantial financial penalty when its commission of an offence against the section has such serious results.”offence against the section has such serious results.”Mr Justice Alliot and Mr Justice Newman Mr Justice Alliot and Mr Justice Newman Court of Appeal 2000Court of Appeal 2000

Sea Empress - Sea Empress - Compulsory PilotageCompulsory Pilotage

““The significance of these matters is all the greater in the The significance of these matters is all the greater in the context of a scheme of compulsory pilotage. Shipowners and context of a scheme of compulsory pilotage. Shipowners and masters must needs engage a pilot. They have to take the masters must needs engage a pilot. They have to take the training, experience and expertise of the pilot at face value. training, experience and expertise of the pilot at face value. While the master remains nominally in command, it has to be While the master remains nominally in command, it has to be recognized that the pilot had the “con” and a master can only recognized that the pilot had the “con” and a master can only intervene when a situation of danger has clearly arisen. The intervene when a situation of danger has clearly arisen. The port authority imposes a charge for pilotage but in the same port authority imposes a charge for pilotage but in the same breath has the added advantage of the pilot being treated for breath has the added advantage of the pilot being treated for purposes of civil liability as an employee of the shipowner. purposes of civil liability as an employee of the shipowner. All this calls for the highest possible standards on the All this calls for the highest possible standards on the part of the port authority.part of the port authority.”” Mr Justice David Steel (1999)Mr Justice David Steel (1999)

Industry StandardsIndustry Standards Under recent law reform mere compliance with industry Under recent law reform mere compliance with industry

standards may not be sufficient to avoid a conviction. standards may not be sufficient to avoid a conviction. The fact that a given practice is common within a The fact that a given practice is common within a particular industry is a relevant factor for consideration particular industry is a relevant factor for consideration but does not of itself mean that observance of that but does not of itself mean that observance of that practice cannot fall far below what can reasonably be practice cannot fall far below what can reasonably be expected. expected. It will not be a defence if a jury is not It will not be a defence if a jury is not impressed by the standards which the industry has set impressed by the standards which the industry has set for itself.for itself.

A sophisticated human factors based approach is increasingly being used to investigate accidents and incidents in different industries. All aspects investigated and scrutinised from selection, training and operational practices to safety systems. In Australia the universities are also allowed to train surgeons because the profession’s training system was not based on proper scientific principles

Protection of the environmentProtection of the environment An increasing public perception that protection and An increasing public perception that protection and

preservation of the environment is an issue which is preservation of the environment is an issue which is of crucial importance to the future of the human of crucial importance to the future of the human race. race.

International bodies, governments and other public International bodies, governments and other public bodies are pushing through legislation designed to bodies are pushing through legislation designed to achieve the objective of protecting the environment. achieve the objective of protecting the environment.

A widely held belief that the introduction of A widely held belief that the introduction of ‘strict ‘strict liabilityliability’ offences is necessary to achieve the ’ offences is necessary to achieve the objective despite the undesirable consequences for objective despite the undesirable consequences for a particular industry such as shippinga particular industry such as shipping

Strict Liability – Criminal Strict Liability – Criminal AspectAspect

Generally to be guilty of a crime, a person must act Generally to be guilty of a crime, a person must act with ‘criminal intent’with ‘criminal intent’

For health and public welfare violations ‘strict For health and public welfare violations ‘strict liability’ can apply such as an ‘liability’ can apply such as an ‘accidental spill after a accidental spill after a casualty’casualty’

Strict liability means that an individual can be found Strict liability means that an individual can be found criminally liable without having had criminal intent in criminally liable without having had criminal intent in the traditional sense*the traditional sense*

Strict liability is increasingly being applied in cases Strict liability is increasingly being applied in cases of environmental pollutionof environmental pollution

Strict liability offences carry jail sentences and finesStrict liability offences carry jail sentences and fines(*Under strict liability it cannot be said that pilot (*Under strict liability it cannot be said that pilot error leading to a collision or grounding is an error leading to a collision or grounding is an extraordinary event – Sea Empress)extraordinary event – Sea Empress)

‘‘Cosco Busan’Cosco Busan’ ( November 2007)( November 2007)

Strict LiabilityStrict Liability

‘‘Cosco Busan’ allision Cosco Busan’ allision with Bay Bridgewith Bay Bridge

The container ship M/V Cosco The container ship M/V Cosco Busan struck the Bay Bridge in San Busan struck the Bay Bridge in San Francisco Bay at 08:30 on 07 Francisco Bay at 08:30 on 07 November 2007. An approximate November 2007. An approximate 100' gash in the hull of the vessel 100' gash in the hull of the vessel resulted, and 58,000 gallons of fuel resulted, and 58,000 gallons of fuel oil was released into the water.oil was released into the water.

‘‘Cosco Busan’Cosco Busan’

Cosco Busan – Specific Cosco Busan – Specific Charges Charges

1.1. Clean Water Act – Negligent Discharge Clean Water Act – Negligent Discharge of a Pollutantof a PollutantThe Pilot,The Pilot,

did negligently cause the discharge of oil in such quantities as may be did negligently cause the discharge of oil in such quantities as may be harmful from a vessel, the harmful from a vessel, the M/V Cosco Busan,M/V Cosco Busan, into and upon the into and upon the navigable waters of the United States, without a permit. Specifically, navigable waters of the United States, without a permit. Specifically, on or about November 7, 2007, Defendant, while piloting the on or about November 7, 2007, Defendant, while piloting the M/VM/V Cosco BusanCosco Busan, caused approximately 58,000 gallons of heavy oil to be , caused approximately 58,000 gallons of heavy oil to be discharged from the vessel into San Francisco Bay by acting in a discharged from the vessel into San Francisco Bay by acting in a negligent manner, that included the following: negligent manner, that included the following:

(a) failing to pilot a collision free course; (a) failing to pilot a collision free course; (b) failing to adequately review with the Captain and crew of the (b) failing to adequately review with the Captain and crew of the M/VM/V

Cosco BusanCosco Busan prior to departure the official navigational charts of the prior to departure the official navigational charts of the proposed course, the location of the San Francisco Bay aids to proposed course, the location of the San Francisco Bay aids to navigation, and the operation of the vessel's navigational equipment; navigation, and the operation of the vessel's navigational equipment;

(c) departing port in heavy fog and then failing to proceed at a safe (c) departing port in heavy fog and then failing to proceed at a safe speed during the voyage despite limited visibility; speed during the voyage despite limited visibility;

(d) failing to use the vessel's radar while making the final approach to (d) failing to use the vessel's radar while making the final approach to the Bay Bridge; the Bay Bridge;

(e) failing to use positional fixes during the voyage; and (e) failing to use positional fixes during the voyage; and (f) failing to verify the vessel's position vis-à-vis other established and (f) failing to verify the vessel's position vis-à-vis other established and

recognized aids to navigation throughout the voyage.recognized aids to navigation throughout the voyage. All in violation of Title 33, United States Code, Sections 13 19(c)(l)(A) All in violation of Title 33, United States Code, Sections 13 19(c)(l)(A)

and 1321(b)(3), a Class A misdemeanor.and 1321(b)(3), a Class A misdemeanor.

2. Migratory Bird Treaty 2. Migratory Bird Treaty ActAct

The Pilot,The Pilot,without being permitted to do so by regulation without being permitted to do so by regulation as required by law, did take migratory birds, as required by law, did take migratory birds, including at least one Brown Pelican, including at least one Brown Pelican, (Pelecanus occidentalis), Marbled Murrelet, (Pelecanus occidentalis), Marbled Murrelet, Brachyramphus marmoratus), and Western Brachyramphus marmoratus), and Western Grebe, (Aechmophorus occidentalis).Grebe, (Aechmophorus occidentalis).All in violation of Title 16, United States Code, All in violation of Title 16, United States Code, Sections 703 and 707(a), and Title 50, Code of Sections 703 and 707(a), and Title 50, Code of Federal Regulations, Sections 21.1 1,20.71 and Federal Regulations, Sections 21.1 1,20.71 and 20.72, a Class B misdemeanor.20.72, a Class B misdemeanor.The outcome of this case pendingThe outcome of this case pending

Pilotage Incident Pilotage Incident MelbourneMelbourne

‘‘OOCL SydneyOOCL Sydney’ collision ’ collision with recreational vessel with recreational vessel

on 30 October 2005on 30 October 2005

Pilotage Incident Pilotage Incident MelbourneMelbourne

‘‘OOCL SydneyOOCL Sydney’ collision ’ collision with recreational vessel with recreational vessel

on 30 October 2005on 30 October 2005

Melbourne Pilotage Melbourne Pilotage IncidentIncident

ChronologyChronology30 October 200530 October 2005 - “At around 8.50 a.m., just south of the Fawkner Beacon, - “At around 8.50 a.m., just south of the Fawkner Beacon, after changing course suddenly in order to avoid a small after changing course suddenly in order to avoid a small recreational vessel, the ‘OOCL Sydney’ collided with another recreational vessel, the ‘OOCL Sydney’ collided with another recreational vessel, forcing its occupants, Robert and Luigi recreational vessel, forcing its occupants, Robert and Luigi Corvetti, to jump into the sea (“the first incident”) The ‘OOCL Corvetti, to jump into the sea (“the first incident”) The ‘OOCL Sydney’ drifted north-west into the Hobson Bay anchorage to Sydney’ drifted north-west into the Hobson Bay anchorage to await confirmation that the Corvettis were safe” await confirmation that the Corvettis were safe”

- “At around 9.15 a.m., as the Sydney turned back towards - “At around 9.15 a.m., as the Sydney turned back towards the Melbourne Channel, it narrowly avoided a third the Melbourne Channel, it narrowly avoided a third recreational vessel occupied by David and Steven Moore, recreational vessel occupied by David and Steven Moore, who had to cut anchor to get away (‘the second incident’)”who had to cut anchor to get away (‘the second incident’)”- Pilot received summons from Water Police- Pilot received summons from Water Police

31 October 200531 October 2005Pilot interviewed by Water PolicePilot interviewed by Water Police

Melbourne Pilotage Melbourne Pilotage IncidentIncident

ChronologyChronology04 January 200604 January 2006Accident Inspector appointed by Director of Marine Safety Accident Inspector appointed by Director of Marine Safety interviewed pilotinterviewed pilot

31 January 200631 January 2006 Accident Inspector submits report Accident Inspector submits report

16 June 200616 June 2006Director of Marine Safety cancelled all pilot licences held by pilot Director of Marine Safety cancelled all pilot licences held by pilot under the under the Marine ActMarine Act 1988 1988 and recommends criminal prosecution to and recommends criminal prosecution to the Director of Public Prosecutionsthe Director of Public Prosecutions

29 June 200629 June 2006Pilot applied to the Pilot applied to the Victorian Civil and Administrative TribunalVictorian Civil and Administrative Tribunal (VCAT) for an order staying the operation of above decision(VCAT) for an order staying the operation of above decision

3 August 20063 August 2006VCAT made an order staying the operation of the decisionVCAT made an order staying the operation of the decision

29 October 200629 October 2006Pilot informed of criminal proceedingsPilot informed of criminal proceedings

19 December 200619 December 2006After hearing from 16-20 October & 25 October VCAT suspends After hearing from 16-20 October & 25 October VCAT suspends pilot’s licence for 3 months - in effect from 18 December to 03 pilot’s licence for 3 months - in effect from 18 December to 03 February 2007February 2007

Prosecution of PilotProsecution of PilotMelbourne Magistrates’ Court Melbourne Magistrates’ Court

- Criminal- CriminalCharges:Charges: Marine Pilot endangering of vessel (2)Marine Pilot endangering of vessel (2) Endangering vessel of crew (1)Endangering vessel of crew (1) Negligently endangering anyone on vessel Negligently endangering anyone on vessel

(2)(2) Operating vessel at speed or manner Operating vessel at speed or manner

dangerously (4)dangerously (4) Operate vessel carelessly (2)Operate vessel carelessly (2)Total: 11 ChargesTotal: 11 ChargesHearing 06 August 2007Hearing 06 August 2007

Prosecution of PilotProsecution of PilotMelbourne Magistrates’ Court Melbourne Magistrates’ Court

- Criminal- CriminalCharges:Charges:Marine Pilot Endangering of vessel (2)Marine Pilot Endangering of vessel (2)A pilot who is in charge of a vessel and A pilot who is in charge of a vessel and who does or omits to do anything, who does or omits to do anything, wilfullywilfully or negligently, that is likely to endanger a or negligently, that is likely to endanger a vessel or its crew is guilty of an indictable vessel or its crew is guilty of an indictable offence and liable to imprisonment for a offence and liable to imprisonment for a term of not more than 2 years or a fine of term of not more than 2 years or a fine of not more that 100 penalty unitsnot more that 100 penalty units

Prosecution of PilotProsecution of PilotActs tending to endanger vessel or crew (1)Acts tending to endanger vessel or crew (1)Any person who, whether Any person who, whether wilfullywilfully and negligently- and negligently-

(a)(a) Does an act tending the immediate loss or destruction Does an act tending the immediate loss or destruction of, or serious damage to, a vessel or its cargo; orof, or serious damage to, a vessel or its cargo; or

(b)(b) Does an act tending immediately to endanger anyone Does an act tending immediately to endanger anyone belonging to or on board a vessel; orbelonging to or on board a vessel; or

(c)(c) Fails to do an act that is reasonably necessary to Fails to do an act that is reasonably necessary to protect a vessel or cargo from immediate loss, protect a vessel or cargo from immediate loss, destruction or serious damage; ordestruction or serious damage; or

(d)(d) Fails to do an act that is reasonably necessary to Fails to do an act that is reasonably necessary to protect anyone belonging to or on board a vessel from protect anyone belonging to or on board a vessel from immediate dangerimmediate dangeris guilty of an indictable offence and liable to is guilty of an indictable offence and liable to imprisonment for a term of not more 2 years or a fine of imprisonment for a term of not more 2 years or a fine of not more than 240 penalty units or bothnot more than 240 penalty units or both

Criminal Prosecution of Criminal Prosecution of PilotPilot

Negligently endangering anyone on vessel (2)Negligently endangering anyone on vessel (2)Under ‘Duty of Care’Under ‘Duty of Care’

Operating Dangerously (4)Operating Dangerously (4)A person must not operate a vessel at a speed or in a A person must not operate a vessel at a speed or in a manner in which it is dangerous to the public, having regard manner in which it is dangerous to the public, having regard to all the circumstances of the case.to all the circumstances of the case.

Penalty: 240 penalty units or imprisonment for 2 years or Penalty: 240 penalty units or imprisonment for 2 years or bothboth

Careless Operation (2)Careless Operation (2)(1) A person must not operate a vessel carelessly.(1) A person must not operate a vessel carelessly.

Penalty: 12 penalty units for a first offencePenalty: 12 penalty units for a first offence25 penalty units for a second or subsequent offence25 penalty units for a second or subsequent offenceTotal: 11 Charges (Hearing 06 August 2007)Total: 11 Charges (Hearing 06 August 2007)

Criminal Prosecution of Criminal Prosecution of PilotPilot

06 August 2007 06 August 2007 ““Melbourne pilot is due to be sentenced Melbourne pilot is due to be sentenced tomorrow pleading guilty to one charge under tomorrow pleading guilty to one charge under the Marine Act of negligence, causing serious the Marine Act of negligence, causing serious damage to a vessel or its’ cargo” damage to a vessel or its’ cargo” Lloyd’s DCNLloyd’s DCN

07 August 200707 August 2007““Melbourne pilot was given a criminal Melbourne pilot was given a criminal conviction and fined $AUD5,000 today after conviction and fined $AUD5,000 today after pleading guilty to one charge under the pleading guilty to one charge under the Marine Act of negligence, causing serious Marine Act of negligence, causing serious damage to a vessel or its’ cargo” damage to a vessel or its’ cargo” Lloyd’s DCNLloyd’s DCNIf there had been a death the pilot would have almost If there had been a death the pilot would have almost certainly have faced a manslaughter chargecertainly have faced a manslaughter charge

ResponseResponseHow should pilots respond to this How should pilots respond to this changed working environment?changed working environment?Answer depends on whether pilots feel Answer depends on whether pilots feel they can change the surrounding they can change the surrounding reality and preserve the existing system reality and preserve the existing system (delusional) or make changes and adapt (delusional) or make changes and adapt to the changed working environment to the changed working environment The remaining presentation is based on The remaining presentation is based on making changes and adapting to the making changes and adapting to the working environment – Modernisationworking environment – Modernisation

Traditional Pilot Centred Traditional Pilot Centred ApproachApproach

Has a good record but is not adequate to meet present Has a good record but is not adequate to meet present day demands of safetyday demands of safety

It relies on unrealistic notion of unvarying error free It relies on unrealistic notion of unvarying error free performance by the pilotperformance by the pilot

Experience has shown that human error is inevitable - in Experience has shown that human error is inevitable - in the nature of thingsthe nature of things

‘‘Pilot centred’ approach is susceptible to ‘one person Pilot centred’ approach is susceptible to ‘one person error’ accident. error’ accident.

A ‘Single person error’ accident is no longer acceptable A ‘Single person error’ accident is no longer acceptable in any high risk industry in Australia and increasingly in in any high risk industry in Australia and increasingly in other countriesother countries

Therefore need to shift fromTherefore need to shift from ‘pilot centred’‘pilot centred’ to to human factors based human factors based ‘systems’‘systems’ approachapproach

Systems Approach to Systems Approach to SafetySafety

Is derived from High Reliability Is derived from High Reliability Organizations (HRO’s) such as in Organizations (HRO’s) such as in corporate aviation, military (aircraft corporate aviation, military (aircraft carriers), nuclear power generation etc. carriers), nuclear power generation etc.

HRO’s operate in a high risk environment HRO’s operate in a high risk environment where accidents can have very serious where accidents can have very serious consequences and cannot be hidden. consequences and cannot be hidden. Marine pilotage is also an area where Marine pilotage is also an area where accidents can have very serious accidents can have very serious consequences and cannot be hiddenconsequences and cannot be hidden

Pilotage – Systems Approach

Hardware Software(People)

Materials, Design,Machinery, Equipment,

(Portable Piloting Unit) etc.Human Factors

Safety Culture‘Holy Grail’

Selection and Training

Safety ManagementSystem

(Organization, Proactive, Reporting)

Individual Technical Skills and Experience

ResourceManagement

Modern Justification for Modern Justification for PilotPilot

Up to date knowledge of fairways and conditionsUp to date knowledge of fairways and conditions Expert shiphandler in port conditions Expert shiphandler in port conditions Knowledge of regulations and by-lawsKnowledge of regulations and by-laws Port/State/National Representative involved in protection Port/State/National Representative involved in protection

of port/public/state interests such as infrastructure and of port/public/state interests such as infrastructure and waterwayswaterways

National SecurityNational Security Independent Judgement Independent Judgement

Must work with bridge team but also exercise independent judgement Must work with bridge team but also exercise independent judgement if necessary. if necessary.

Expert in development & application of systems approach Expert in development & application of systems approach to safety in piloting conditions to safety in piloting conditions

Systems ApproachSystems Approach Pilot is now joint manager of a high risk operationPilot is now joint manager of a high risk operation Acknowledgement of pilot as manager of high risk operation Acknowledgement of pilot as manager of high risk operation

raises application of human factors based systems raises application of human factors based systems approach to prime importance. approach to prime importance.

Requires development of ‘Requires development of ‘selection criteria’selection criteria’ and proper and proper training in:training in:

- Shiphandling (manned model, on the job and simulator based) using a competency based approach

- Passage planning (Piloting to a passage plan) - Application of modern technology (Instrument Application of modern technology (Instrument

piloting)piloting) - Application of error management (BRM) principles

and techniques in pilotage

in addition to local knowledgein addition to local knowledge

VisionVisionPiloting within a BRM framework Piloting within a BRM framework to a proper passage plan with a to a proper passage plan with a reserve of practiced and reserve of practiced and regularly validated skills to deal regularly validated skills to deal with abnormal and emergency with abnormal and emergency situationssituations

‘‘Truly superior pilots are those who use their Truly superior pilots are those who use their superior judgement to avoid those situations superior judgement to avoid those situations where they might have to use their superior skills’where they might have to use their superior skills’

Modernisation – Modernisation – Implementation IssuesImplementation Issues

Involves shift from Involves shift from ‘pilot centred’‘pilot centred’ to a to a human factors based human factors based ‘systems’‘systems’ approachapproach

Shift to Shift to ‘systems’‘systems’ approach implies ‘ approach implies ‘radical radical change’change’ in in ‘‘professional culture’professional culture’ of pilots of pilots

Very difficult task and should not be under-Very difficult task and should not be under-estimated. ‘estimated. ‘Equivalent to trying to change Equivalent to trying to change the framework of a building and at the the framework of a building and at the same time fixing the foundations while still same time fixing the foundations while still living in the house and for public living in the house and for public appearances pretending that nothing appearances pretending that nothing unusual is happening’ unusual is happening’

TransitionTransition Pilots need to understand the reasons for changePilots need to understand the reasons for change During the critical transition phase from the During the critical transition phase from the

‘pilot centred’ to ‘systems approach’ informed ‘pilot centred’ to ‘systems approach’ informed understanding by Regulators and Accident understanding by Regulators and Accident Investigators is requiredInvestigators is required

Change of this magnitude requires regulators Change of this magnitude requires regulators and accident investigators to provide and accident investigators to provide encouragement and adopt a supporting and encouragement and adopt a supporting and nurturing rolenurturing role

Proper accident investigation is Proper accident investigation is critical for improving safetycritical for improving safety

Strong role for retraining and continuous Strong role for retraining and continuous professional development in implementing professional development in implementing systems approach systems approach

Access to a proper simulator can be very helpful Access to a proper simulator can be very helpful in accelerating transition in accelerating transition

Modernisation - Modernisation - AustraliaAustralia

Modernisation (systems approach) an Modernisation (systems approach) an AMPA initiativeAMPA initiative

Understanding has now achieved critical Understanding has now achieved critical mass mass

Blueprint has been developed and is in Blueprint has been developed and is in various stages of implementation in various stages of implementation in AustraliaAustralia

With ready access to a proper simulator we With ready access to a proper simulator we can look forward to rapid implementationcan look forward to rapid implementation

Michael Grey on Michael Grey on ‘Acceptable Risk’‘Acceptable Risk’

““We can laugh about our risk averse society, We can laugh about our risk averse society, and the high priests of “elf’n Safety”*, but and the high priests of “elf’n Safety”*, but you do not argue with prosecutors bearing you do not argue with prosecutors bearing charges and demanding heavy sentences if charges and demanding heavy sentences if things go wrong.things go wrong.……And it is us, not society who will have And it is us, not society who will have to change our notions about risk…”to change our notions about risk…” The precautionary principle defines The precautionary principle defines the risk-averse societythe risk-averse societyLloyd’s List, 19 February 2007Lloyd’s List, 19 February 2007(Article following Judgement on ‘Zim Mexico III’) (Article following Judgement on ‘Zim Mexico III’)

* * elf’n Safetyelf’n Safety = Health and Safety= Health and Safety

Acceptable RiskAcceptable Risk Where do we get our ideas/beliefs on Where do we get our ideas/beliefs on

‘acceptable risk’?‘acceptable risk’? After recent pilotage accidents and After recent pilotage accidents and

increasing criminal prosecutions do we increasing criminal prosecutions do we need to change our ideas on need to change our ideas on ‘acceptable risk’?‘acceptable risk’?

Why is it important to get a ‘fix’ on Why is it important to get a ‘fix’ on ‘acceptable risk’ in pilotage in what is ‘acceptable risk’ in pilotage in what is now a ‘risk averse’ society?now a ‘risk averse’ society?

What can be be done?What can be be done?

Food for thoughtFood for thoughtThe late great US Coast Guard Captain The late great US Coast Guard Captain Dominic Callichio, who reformed American Dominic Callichio, who reformed American maritime law…, maritime law…, theorised that so theorised that so many maritime rules were many maritime rules were created so that no rules were created so that no rules were clear. This led to confusion in clear. This led to confusion in operation and policy but operation and policy but complete clarity in hindsight complete clarity in hindsight and prosecutionand prosecution..

  

Conclusion Conclusion ““As the world’s population becomes more As the world’s population becomes more environmentally aware and sensitive, tolerance environmentally aware and sensitive, tolerance for marine accidents resulting in pollution of the for marine accidents resulting in pollution of the seas and environs… becomes less and less. As a seas and environs… becomes less and less. As a result and because of enormous popular demand result and because of enormous popular demand and support, prosecution of pollution incidents and support, prosecution of pollution incidents and polluters, even innocent ones does not and polluters, even innocent ones does not appear to offend anyone’s sensibilities, other appear to offend anyone’s sensibilities, other than those in the maritime industry.”than those in the maritime industry.”Michael G. Chalos Michael G. Chalos

ConclusionConclusion““Under the circumstances, the Under the circumstances, the industry needs to carefully implement industry needs to carefully implement and monitor procedures, practices and monitor procedures, practices and regulations to minimize the risk and regulations to minimize the risk of maritime accidents and pollution.”of maritime accidents and pollution.”Michael G. Chalos Michael G. Chalos

(In terms of pilotage this implies (In terms of pilotage this implies developing and implementing a transparent developing and implementing a transparent safety management system that includes safety management system that includes operating procedures and the selection and operating procedures and the selection and training of pilots)training of pilots)

ConclusionConclusion““At the same time the industry through its At the same time the industry through its various trade organizations, must actively various trade organizations, must actively petition the governments and regulatory bodies petition the governments and regulatory bodies around the world to de-criminalize maritime around the world to de-criminalize maritime accidents in the absence of criminal behavior” accidents in the absence of criminal behavior” Michael G ChalosMichael G Chalos** ‘ ‘The Criminalization of The Criminalization of MARPOL violations and maritime accidents MARPOL violations and maritime accidents in the United States in the United States *Leading US maritime lawyer/attorney who *Leading US maritime lawyer/attorney who defended Captain Hazelwood of the ‘Exxon Valdez’defended Captain Hazelwood of the ‘Exxon Valdez’

FinallyFinally We are now faced with new realities and We are now faced with new realities and

problems for which there are no ready made problems for which there are no ready made solutions. solutions.

Pilotage is located at a strategic point in the Pilotage is located at a strategic point in the shipping industry. With the right mindset shipping industry. With the right mindset pilots are in a position to provide the pilots are in a position to provide the leadership in helping the shipping industry in leadership in helping the shipping industry in understanding and properly implementing a understanding and properly implementing a systems approachsystems approach

I hope this presentation helps in providing the I hope this presentation helps in providing the stimulation for seeking, developing and stimulation for seeking, developing and implementing new solutions.implementing new solutions.

ENDENDThank YouThank You

Ravi NijjerRavi NijjerPrincipal Consultant Principal Consultant

Marine Consultancy Group Pty LtdMarine Consultancy Group Pty LtdTel: + 61 3 9830 0649Tel: + 61 3 9830 0649

Mobile: + 61 419 565 860Mobile: + 61 419 565 860ravi.nijjer@marcon.com.au