pilotage standards barrie youde

7/31/2019 Pilotage Standards Barrie Youde

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TO THEHOUSE OF COMMONS SELECT COMMITTEE ON TRANSPORT

STANDARDSIN THE NATIONAL MARINE PILOTAGE SCHEME

CALL FOR EVIDENCE 10th July 2012. SUBMISSION IN RESPONSE - 14th August 2012

PREAMBLE

I am most grateful to Mr Andrew Miller, Member of Parliament for Ellesmere Port and Neston,for his assistance in drawing this matter to the attention of the Select Committee.

I have known pilotage all my life. My father served as a licensed Liverpool Pilot from 1936 untilhis retirement in 1975. For my own part I was born in 1943 and was educated at LiverpoolCollege. In 1959 I passed GCE O levels (Oxford & Cambridge Board) in Mathematics,Physical Geography, French, German, English Language and English Literature. I then leftschool and joined the Pilot Service at Liverpool as a sixteen-year old apprentice. I was granted

a Third Class pilots licence in 1966, Second Class in 1968, First Class in 1971 and Senior FirstClass (or unrestricted) in 1976. The classifications relate to the size of vessel in respect ofwhich any pilot may become qualified, after due process of examination and experience, toconduct the pilotage.

In the early 1980s, encouraged by my father (who was himself the son of a lawyer) I began totake a closer than usual interest in pilotage law. I enrolled at Liverpool Polytechnic as a part-time student. In 1988 (following a loss of hearing), my licence as a pilot was revoked by thePilotage Authority. I had served for twenty-two years as a licensed pilot. In 1989 I graduatedLLB (Honours 2:1) at Liverpool and in 1990 I was Called to the Bar at the Inner Temple inLondon. Remaining in London I served a pupillage in Admiralty law and then returned to

chambers in Liverpool, from which I practised at the criminal Bar until 1994. Continuing interestin pilotage and commercial matters led me to convert to practice as a solicitor and I wasadmitted to the Law Society Roll in 1995. I have remained as a solicitor in private practice eversince.

In 1994 I wrote a short book entitled Beyond The Bar A Light History of the LiverpoolPilotage Service, published by Laver Publishing (1994). The book has a foreword by SirMalcolm Thornton MP (1979-97). A Second Edition of the book was published in 2004. A copyof the Second Edition appears atAppendix 12. The evidence which appears in the following sixpages has been gathered during all of the above experience.

I make my submissions as a concerned member of the public and in no other capacity.

Barrie Youde

Deva Bank RA Wilkinson & CoParkgate SolicitorsNeston 5, Mortimer StreetCheshire BirkenheadCH64 6RW CH41 5EU

Tel: 0151 647 625914th August 2012

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EVIDENCE

INTRODUCTION

1. The case which gives cause for concern is the abandonment by two designated CompetentHarbour Authorities (CHAs) of regulated standards in compulsory pilotage areas under thePilotage Act of 1987, contrary not only to international law but also in express breach of thecommon law of the Parliamentary jurisdiction. It will be shown also that successive Secretaries ofState have been complicit in the said breaches, and have in consequence failed in their inherentduty to maintain order. Remedial action is therefore called for as a matter of some urgency inorder to prevent further disorder.

2. A compulsory pilotage area may be defined as an area in which a CHA considers, in accordancewith Section 2 of the 1987 Pilotage Act, that pilotage should be compulsory.

3. The motive for the conduct of the two CHAs (first at the Humber and later repeated at the Clyde)is pure commercial greed. There is no other motive. It is otherwise inexplicable why anybody,least of all a CHA, would wish to grant authorisation or promotion to pilots whose qualificationsdo not meet minimum established standards, which is precisely what has happened on a large

scale. All law confirms that the highest possible standards are called for in compulsory pilotageareas.

THE HISTORICAL POSITION

4. Pilotage is one of the oldest and most public of all services, having been governed by commonlaw, Parliamentary statute law (at both primary and secondary level) and international law asdeveloped throughout all history. Records available on the internet today show the state controlof pilotage in the 13th century by the Code of Oleron, which (duly amended with the passage oftime) remains the basis for much commercial maritime discipline and regulation.

5. Standards of qualification for pilots in compulsory pilotage areas have been required by law for alonger period of time than have standards of qualification for any other class of mercantile

mariner; and pilots have been examined and authorised by licence or other similar instrumentsince the middle ages. By contrast, examinations for Masters and Mates in the Merchant Servicewere not introduced until the middle of the 19 th century. In the late eighteenth century (1797) alicensing authority became empowered to place restrictions on a pilots licence, commensuratewith his knowledge and experience; and the practice thus developed of restricting lessexperienced pilots to the pilotage of vessels of smaller size as a common-sense measure in theinterests of public safety. By 1833, Bye-laws were introduced by Parliamentary Act in order togovern the restrictions (which are otherwise known as classifications or post-qualificationexperience) and other matters more closely.

6. Bye-laws were maintained nationally under Section 18 of the Pilotage Act of 1913, by which time

the standard practice had developed in major ports that, even after due examination as to hisknowledge, post-qualification restrictions would be placed on the licence of any pilot for his firstfour years in practice. The Humber and the Clyde were amongst the many ports which appliedthe four-year restriction as a standard measure.

7. Appendix 1 shows Bye-Laws 65-75 as applicable at Liverpool in substantial detail under the1913 Act. Bye-Laws 16 and 17 as applicable at the Humber at the same time are shown at page61 ofAppendix 2.

8. The Bye-laws introduced the pilot by incremental stages to the pilotage of larger ships until it was- and as a matter of common law still is - adjudged by regulated standard that the pilot would besufficiently experienced to undertake the pilotage of a ship of any size.

9. Prior to the introduction of the 1987 Pilotage Act, pilotage was administered on a port-by-portbasis by Trinity House or other local Pilotage Authorities. The Act of 1987 gives administrativepower for the first time to harbour authorities (CHAs) whose prime motive is to make commercial

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gain rather than to conduct any administration of pilotage. The administration of pilotage had notpreviously rested with any commercial body; and this is the cause of the present mischief.

THE MODERN LAW

10. Most pilots throughout history have served on terms of self-employment as a matter of goodpractice. Many still do so today by the express terms of Section 4(2) (b) of the 1987 Act. There isan obligation under Section 4 (1) of the Act that a CHA must offer terms of employment to pilotsbut there is no power given to any CHA to impose terms of employment on anybody where termsof employment are not wanted.

11. Upon the repeal of the Pilotage Act of 1913 and the Bye-Laws made thereunder, standards ofpost-qualification experience were and still are - maintained by purely ad-hocmeans on a port-by-port basis. (Please see Analysis of present standards maintained at major ports at Appendix2.) It will be seen that in some ports the standard period of restriction on a pilots licence isconfirmed at more than four years.

12. The propriety of the regulated restrictions was confirmed in two cases which came before theCourts at an apparent turning point in the law, on the introduction of the Pilotage Act of 1987which repealed the Act of 1913. In the first case (the Esso Bernicia, which was heard in theHouse of Lords, - report shown at Appendix 3), the facts had arisen during the currency of the

1913 Act. Following a long line of ancient authority, the House of Lords held (at page 2 ofAppendix 3) that a pilot is an independent professional who is engaged by a shipmaster to actas a principal and not as the servant or agent of any harbour authority. The second case (theCavendish report shown at Appendix 4) was heard in the High Court in 1993, when it was heldthat the introduction of the Act of 1987 had changed nothing of any significance; and that the dutyof a CHA in pilotage is (as had been the duty of Trinity House or other Pilotage Authoritybeforehand) limited to maintaining an adequate supply of properly qualified pilots to be engagedby ships navigating in a compulsory pilotage area. The Cavendish case of 1993 is therefore ofhigh significance. It was emphasised in the judgment that a CHA performs no pilotage; and thatany pilotage is necessarily performed by authorised professional pilots. It follows that thefunction of a CHA in pilotage is a purely administrative one.

13. The judgment in the Cavendish case was delivered by Mr Justice Anthony Clarke, as he thenwas. Subsequently Mr Justice Clarke became Lord Clarke of Stone-cum-Ebony, Master of theRolls and one of the first judges to be appointed to the recently-created Supreme Court. Where inLord Clarkes judgment it is stated (at page 298 ofAppendix 4) that it is the function of a CHA tomaintain an adequate supply of properly qualified pilots and (at page 301 of Appendix 4) thatthe position is in my judgment the same now as it was under the 1913 Act, the corollary is thatupon the repeal of the Act of 1913 and the Bye-Laws made thereunder, there was noParliamentary intention that any of the standards of post-qualification experience written in theformer Bye-Laws should be abandoned. Manifestly there was no Parliamentary intention that thenew Act of 1987 should be used as an excuse for disorder. Rather, the newly-created CompetentHarbour Authorities were placed in a position of trust to maintain the proper standardsestablished by the former Pilotage Authorities over many years. In the two CHAs which are of

concern today, there has been a clear breach of the Parliamentary trust imposed in them.

14. Of even greater legal significance is the case of the Sea Empress (as reported at Appendix 5)which concluded in the Court of Criminal Appeal in April 2000, where it was shown thatmaladministration had occurred at Milford Haven shortly before the events which are of concerntoday. The vessel Sea Empress was a large oil-tanker and had been under pilotage in acompulsory pilotage area in 1996 when she grounded on rocks at the entrance to the Haven.Widespread pollution, environmental damage and economic loss was caused. It was a majordisaster. The Department for Transport, Local Government and the Regions (DTLR, through itssubsidiary Environment Agency) brought a criminal prosecution in respect of the pollution againstthe authorising body (the CHA) of the compulsory pilot.

15. The case was heard at first instance in Cardiff Crown Court in 1999 before Mr Justice DavidSteel, the presiding judge of the Admiralty Court. The CHA pleaded guilty to the charge. Insummarising the facts prior to passing sentence, the learned judge found that the pilot (as

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provided to the vessel by the CHA) was neither negligent nor incompetent but was specificallylacking in post-qualification inexperience.

16. The express words of the judgment include:- The significance of these matters is all the greaterin the context of a scheme of compulsory pilotage. Shipowners and masters must needs engagea pilot. They have to take the training, experience and expertise of the pilot provided at facevalue. While the master remains nominally in command, it has to be recognized that the pilot hadthe con[duct of the navigation] and a master can only interfere when a situation of danger has

clearly arisen. The port authority imposes a charge for pilotage but in the same breath has theadded advantage of the pilot being treated for purposes of civil liability as an employee of theshipowner. All this calls for the highest possible standards on the part of the port authority. (p.7)

17. The CHA (having pleaded guilty to the criminal charge against it) appealed to the Court ofCriminal Appeal against the severity of the sentence imposed in Cardiff Crown Court. On hearingthe Appeal in April 2000, Lord Bingham the Lord Chief Justice allowed a reduction in thesentence on the grounds (amongst others) that, subsequent to the incident, the CHA had exertedits best efforts to improve the regulated standards of experience amongst the pilots provided forengagement by vessels; and thereby to comply with the obligation to maintain the highestpossible standards in a compulsory pilotage area, as determined at common law. In short, the

classification rules/post-qualification rules at Milford Haven were significantly tightened up.

THE POLICY OF THE DEPARTMENT FOR TRANSPORTTHE HUMBER

18. On 11th June 2001 (barely twelve months later) an extraordinary thing then happened in thecompulsory pilotage area of the Humber. In a contractual dispute, the CHA stated untruthfullythat it had no choice other than to revoke the authorisations of all of its authorised pilots; and, tocompound its impropriety, to do so on Notice (Appendix6) in January 2002, which time-scale ofseven months obviously precluded the maintenance of any of the existing regulated standards ofpost-qualification experience amongst any new pilots who might replace them. By the terms ofthe Notice, which was issued to every authorised Humber pilot, the maintenance of establishedstandards of experience after January 2002 became an obvious chronological impossibility. As all

other ports had done until that time (and as most still do) the Humber CHA had maintainedregulated standards on the basis of a contract with the pilots. In other words, there is and alwayshas been common agreement between pilots and harbour authorities that the maintenance ofstandards is necessary.

19. The Humber CHA was under no obligation at all to behave as it chose to do.The statutory powerto revoke the authorisation of any pilot is discretionary and is not obligatory in any circumstances(Section 3 of the 1987 Act). Moreover, the power is in any event secondary to the obligation tokeep under consideration matters relating to compulsory pilotage, which is regulated by Section2 of the Act. The untruthful statement that the CHA had no choice was a disingenuous andobvious attempt to persuade authorised pilots to accept the terms of employment which arereferred to in the Notice-letter of 11th June 2001; under threat of disqualification if unwilling. The

DTLR was warned many times and by many different voices (including Members of Parliament)as to the impropriety and the likely consequences of the Notice which the CHA had issued.Nevertheless, the DTLR refused to intervene.

20. In consequence and as threatened, on 26th January 2002 the CHA abandoned all regulatedstandards of experience, executed its Notice as delivered, de-authorised all of its pre-existingauthorised pilots and granted authorisations to new pilots whose experience fell far, far short ofthe previously regulated standards. Standards of experience were not maintained at all.

21. The DTLR, for its part, in April 2002 then published a Report (Appendix 7) entitled The NewHumber Pilot Service which confirmed that the new arrangement (adopted in January 2002) had

abandoned not merely some but all regulated standards of experience for authorised pilots; andtherefore did not comply with the principle identified in the Sea Empress case. The DTLR madeno effort to address the obligation that all relevant standards need not only to be maintained inany and every compulsory pilotage area, but maintained at the highest possible level. The

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abandonment of standards of experience was confirmed by a Pilotage Direction issued in July2002, which stated that the authorisation of Humber pilots would henceforward be merely on therecommendation of the Harbour Master; and that any standard or regulated measure ofexperience for pilots would therefore no longer apply. (The Pilotage Direction is shown at page80 ofAppendix2.)

22. To make matters substantially more dangerous, in a major port it is unusual for a Harbour Masterto hold any authorisation in pilotage at all. For that reason, specifically regulated standards of

post-qualification experience are particularly important in pilotage anywhere. It is grosslyimproper that an authorisation in the name of the state for the purposes of safe navigation shouldoccur on the mere recommendation or judgment of any one person alone; particularly when thatperson is not (or might not be) himself authorised in any relevant way. The grant of anauthorisation is a grant of power; and it is not open to anybody to grant a power which he doesnot himself possess. (Nemo dat quod non habet.)

23. The DTLR Report confirms (at Paragraph 10.9) that the obligations of a CHA in a compulsorypilotage area are strict and onerous. The entire Report, however, represents an open travestyof any compliance with those obligations. The Report shows a carefully detailed catalogue of thedisorder and impropriety which had arisen; which is not a thing which Parliament ever intended

should happen, quite regardless of any case law. The Report refers (at Paragraph 7.7) to acrisis which had arisen, following a lawful strike by the pilots which began (with the approval ofthe Court of Appeal) on 12 th December 2001 in protest at the behaviour of the CHA; and (in atable at Paragraph 7.15) to the 946 occasions on which the CHA was unable to provide any pilotat all (whether experienced or otherwise) to ships in want in a compulsory pilotage area. Of those946 occasions, the same table shows that no fewer than 444 of them arose after 23 rd January2002, when the pilots strike ended, three days before the de-authorisation en masse on 26 th

January 2002. After 26th January 2002, the sole cause of the acute shortage of pilots whichexisted was the mass de-authorisation which the CHA carried out that day by its own choice.Plainly, Parliament never did intend (nor even contemplate) that such a thing might happen. Thatextraordinary event, in a major port on a hazardous estuary (at one of the largest ports inEurope), was beyond the contemplation of any responsible person.

24. In October 2001 the pilots under Notice of de-authorisation had themselves given Notice to theCHA of their intention to stage a strike in protest. In November 2001 the CHA (in response to thestrike-Notice) obtained a restraining injunction against the pilots in the High Court. The validity ofthe restraining injunction was over-ruled in the Court of Appeal on 11th December 2001, when theCourt determined that a strike by the pilots would be wholly lawful in the circumstances. Thecrisis then facing the CHA was so great that it even went to the extent of suspending compulsorypilotage altogether, not because the Humber estuary and its approaches had become any lesshazardous (manifestly they had not) but because the CHA knew full well that it had placed itselfin a position where it simply could not provide an adequate number of pilots. The CHA wasclearly aware that it had acted improperly. It is inconceivable that the CHA ever contemplated,when it issued the mass de-authorisation Notice in June 2001, that compulsory pilotage in the

Humber should perhaps be suspended. Nor should it have done so. It clearly ought never to haveissued the Notice which it chose to issue, with or without the clear untruth contained within theNotice.

25. The DTLR, however, openly approved the crisis and disorder which the CHA had created by itsown Notice as issued. As the executive arm of Parliament, the DTLR expressed no syllable ofdisapproval and was very clearly complicit in the disorder. Where the DTLR Report asserts (atParagraph 5.25 of its Report) that the arrangements newly put in place were fit for purpose, it isno more legally correct or proper than would be an assertion that any other legally non-compliantarrangement might be fit for purpose. Fitness for purpose and compliance with legally-requiredminimum standards are plainly two different things. The former is a matter of mere opinion

whereas the latter is a matter of fact and strict law.

26. The author of the Report is fastidious in his avoidance of any suggestion that there might havebeen compliance with any relevant law. Plainly there was none, as the author makes clear that

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he knew perfectly well. It is clear beyond a doubt that the DTLR intended to turn a blind eye tothe impropriety of the CHA; and in fact did so. The Report properly makes the point that there aremore methods than one to train a pilot; but, playing fast and loose with the common law,dismisses altogether the need to comply with the legal obligation to maintain establishedminimum standards of post-qualification experience, particularly so where pilotage is compulsory.In that regard, there was no compliance whatsoever.

27.As to the 133 authorised pilots who were de-authorised en-masse on 26th January 2002, 88 of

them (two thirds of their number) sued the CHA in a group action in the High Court in the matterof misfeasance in public office. Their action was settled on terms out of Court, in April 2008,shortly before it was listed to be heard at trial in the Admiralty Court.

INTERNATIONAL LAW

28.As if in confirmation of the improper nature of the behaviour of the Humber CHA and theinadequacy of the DTLR to keep it in check, in 2003 the International Maritime Organization (themaritime arm of the United Nations Organization, to which the United Kingdom is a signatorystate) issued its Resolution A960 in which it is declared (at Paragraph 2.3.2) that developedstandards in pilotage should not only be maintained but should be enforced. (Appendix 8.)Incompulsory pilotage areas this international obligation is clearly much the greater, for all of the

reasons identified by Mr Justice Steel in the SEA EMPRESS case.

THE CLYDE

29. In December 2007, the large vessel Red Jasmine was navigating in the Clyde under pilotage in acompulsory pilotage area inward-bound in dense fog, assisted by two tug-boats. The head-tugFlying Phantom, attached by a tow-wire to the ships bow, suffered a capsize with the loss ofthree lives. Subsequently the pilot ofRed Jasmine suffered mental stress and has since retired.

30. Between 2008 and 2010, having got away scot-free with its inadequacy in 2002, the Departmentfor Transport (DfT) (as the DTLR had become) then turned a blind eye to events as they weredeveloping on the Clyde, where (notwithstanding the Red Jasmine/Flying Phantom incident) theCHA had chosen to revoke the authorisations of so many of its senior authorised pilots that it

could no longer provide any pilot (not a single pilot) whose post-qualification experience compliedwith the regulated standards applicable on the Clyde. (Clyde standards as at July 2009 areshown at pages 42, 43 and 57 ofAppendix 2.)

31. On 9th May 2008 in the Scottish Parliament, Mr Salmond the First Minister referred to theobvious risk of extreme damage which arises when any standards in pilotage are notmaintained.

32. By a letter of 3rd April 2009 (Appendix 9) the shortage of properly qualified Clyde pilots wasalready so acute that the Clyde Harbour Master on behalf of the CHA ordered the pilot ofRedJasmine to report for duty, notwithstanding the fact that the medical advisor to the CHA had long-previously certified that the pilot was psychiatrically unfit. Between 13th September 2011 and 28th

October 2011, the CHA on the Clyde was invited to indicate how many of its serving pilots heldexperience in accordance with the Clyde Regulations; and it simply declined the invitation.Appendix 9 comprises a clip of the above correspondence with the Clyde CHA in which therefusal (and therefore the failure) to show any compliance with any standards is clearly shown.

THE ROLE OF THE SHIPPING MINISTERS

33. The DfT has been challenged repeatedly to explain its lack of interest in the maintenance ofpilotage standards in the two major ports of Humber and Clyde, particularly in light of the untruthand secrecy which has taken place at those two ports respectively. It is alarming that the DfThas stated that it does not accept the common law position. Still less does it accept theinternational law position. Appendix10 is a copyof a letterof 29th June 2009 signed by Paul

Clark MP, the Shipping Minister at the time, setting out the Departmental position. It is noexaggeration to suggest that the Department for Transport has cocked snooks at the laws ofpilotage within its own jurisdiction, as clearly have the two CHAs in question. It appears quiteclear that the Department has held in contempt the very law which it is its function to administer.

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34. On 29th September 2010 I met the then-new Shipping Minister, Mike Penning MP. I waspresented to him at a meeting that day on another matter at Hope Cove, South Devon. MrPenning indicated that he shared my concerns for the matters raised here. Accordingly he hasencouraged me to ventilate them, as have many others including Andrew Miller MP, Sir MalcolmThornton (MP 1979-1997) and Lord Hunt of Wirral in more open and express terms.

35.At a public meeting in Liverpool in January 2011, Mr Ian Timpson of the DfT was present. Mr

Perry Glading of Forth Ports Plc was in the Chair. Also present were Sir Alan Massey, ChiefExecutive of the Maritime and Coastguard Agency and Captain Stephen Clinch, Her MajestysChief Inspector of Marine Accidents. In response to a question from me, Mr Timpson had thegood grace to admit that in due course the DfT might become obliged to take action to restoreorder in pilotage.

36. There exists no authority, as far as I know, above or higher than the common law as determinedin the Courts when called upon to interpret the true meaning of the 1987 Pilotage Act as intendedby Parliament.

37. The implementary power given by Section 32 (1) of the Act has not been exercised by any

Secretary of State since its enactment on 1st October 1988.

CONCLUSION

38. The experience of the last ten years has shown that where post-qualification standards aremaintained merely by ad-hocmeans, they are not in fact maintained at all. In those ports wherestandards have been properly maintained as required at law, the standards have beenmaintained as minimum standards. It could not be, therefore, in the public interest nor incompliance with the law in any way, to allow those standards to be diminished by choice; whichclearly is what has happened on a large scale in the cases of the two CHAs mentioned.

39. In both cases CHA has chosen to disregard established standards for reasons better known toitself, contrary to the common law. Parliament has never intended that the public pilotage service

should be administered either by untruth or by secrecy on the part of any CHA, nor by efforts toimpose terms of employment on pilots where pilots did not require them, nor by inadequacy onthe part of the DfT, all of which unedifying things have happened in the United Kingdom on agross and obvious scale.

40. In light of the acknowledgment by the DfT that the laws of pilotage in any compulsory pilotagearea are strict and onerous; and in light of the consistent failure of successive Secretaries ofState to uphold those laws, it is submitted most respectfully in the public interest that it is now thefunction of the Select Committee to take steps to ensure that the failures and the large-scaledisorder which is inevitably caused thereby - continue no longer.

41.A simple, inexpensive and effective first-remedial step would be the re-introduction of the termsof Section 22 of the 1913 Pilotage Act, whereby a CHA would be obliged to furnish to theSecretary of State returns on all pilotage matters at regular intervals. A copy of the Section isshown at Appendix11. Public propriety calls for nothing less. It would be a very mild obligation.

42. Even better would be the re-introduction of the Bye-Laws which regulated the relevant standardswith complete and simple success under Section 18 of the 1913 Act. It is unclear why thisprovision was ever discontinued. The international obligations of the United Kingdom in safepilotage remain undiminished in any way. In light of the ever-increasing use of foreign-flagtonnage (which seems unlikely to be reversed in the foreseeable future) those obligations areclearly greater than ever before.

43. It is perfectly clear that any Competent Harbour Authority remains accountable to Parliament,because it is from Parliament alone that any CHA is granted power. It is equally clear thatstatutory power has been abused to date by two CHAs acting in their own interests and with

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complete impunity. That is a state of affairs which I trust that the Select Committee will findintolerable.

Barrie Youde 14th August 2012

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