WHO IS LIABLE WHEN A MARINE PILOT CAUSES A CRASH LANDING?

By Berning Robertson Sunday, May 21, 2017
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Steering vessels safely into Durban Port – who is liable when a marine pilot causes a crash landing?

Last weekend’s cold front and the ensuing strong winds and high swells caused the brief closure of the port of Durban for incoming vessels.  Tsunami-like waves also battered the Durban beach front in mid-March this year, leading to beaches being closed, after a similar spell of bad weather. Immediately after the inclement weather of March a video circulated on social media which attracted many views, showing Durban marine pilot Rainer Rauntenberg, steering a RO-RO vessel (i.e. roll on roll off ships designed to carry wheeled cargo such as automobiles), at times rocking severely from side to side, safely into port during the rough seas of middle March.  Rauntenberg was praised for his skill and calmness under pressure and led the Port of Durban Harbour Master to state that {this] “proves that the Port of Durban is always ready to service its customers and will not let adverse weather conditions delay vessel turnaround time, while adhering to maritime safety precautions”. The fact that the port closed for incoming vessels this past week is an indication of just how severe the conditions were.

Earlier this month, a Durban marine pilot was aboard the MV “Julian” when the vessel overshot its berth and crashed at the bulk terminal, seriously damaging a bulk ship loader, near the port’s entrance on the Bluff.  News reports speculated that the damage to the bulk ship loader was in the region of ZAR 100 million.  This does not take into account the subsequent loss of business.  The heroics of Rautenberg and the collision of MV “Julian” have cast the spotlight on the role of marine pilots, especially in Durban, and more importantly who will be liable in the event of damage caused by the negligence of marine pilots.

A marine pilot is someone, usually a local expert in navigation (such as an ex-ship’s master) and the marine characteristics of the port, who is employed by the local port authority and, in that capacity, renders a service, known as “pilotage” to a vessel owner, which entails the pilot assuming brief control of the navigation of the vessel, usually in waters that require familiarity with the area and local conditions, such as currents, tides and shifting sandbanks, in return for a fee payable to the port authority.  This is in contrast to the master of the vessel whose navigation experience and knowledge of the subject vessel equip the master to navigate the vessel on the open seas.  The pilot assumes control of the vessel from the time of arriving on the bridge, usually just before entering port, until handing control back to the master after docking.

In the South African context, a pilot’s services are compulsory and must be accepted by foreign vessels as a condition for navigating the vessel within port precincts such as Durban.  A pilot must navigate every vessel entering, leaving or moving in any of our ports.  The compulsory pilot’s functions are statutorily determined, and the incidence and extent of the pilot’s and a relevant authority’s liability for actionable wrongs are statutorily regulated.  The National Ports Authority is responsible for providing or procuring pilotage services, licensing pilots and regulating the safe provision of pilotage service by licensed pilots.

With regards to the question of liability, the National Ports Act provides that:

  1. Neither the Authority nor the pilot is liable for loss or damage caused by anything done or omitted by the pilot in good faith whilst performing his or her functions in terms of the Act.
  2. Notwithstanding any other provision of this Act, the pilot is deemed to be the servant of the owner or master of the vessel under pilotage and such owner or master is liable for the acts or omissions of the pilot.

 

In light of clause 1 above, in the event of damage caused to a vessel or by a vessel whilst under the control of a pilot, the pilot’s liability, and the National Ports Authority’s vicarious liability (i.e. liability on account of its employee’s actions), is limited to situations where the causal action or omission was committed in bad faith.  This exclusion from liability, however, only applies where the pilot’s acts or omission were made in good faith and are the sole proximate cause of the damage.  If the National Ports Authority is itself (or another employee is) negligent or contributes to the damage, then the exclusion should not apply.  In such a scenario the National Ports Authority will be tempted to hold the pilot solely responsible for any damage caused to take advantage of the exclusion.   As long as the pilot acts in good faith, albeit negligently, the National Ports Authority and the pilot would be able to escape liability.

Having said that, there are some decided Municipality cases with similar limitations of liability on the Municipality where the courts have found that an act or omission which is carried out negligently is not one which could have been carried out in good faith. This has never been tested in the context of the National Ports Act, but will be one of the arguments used by the owners of the MV “Smart”, a vessel which ran aground whilst exiting from the port of Richards Bay, against the National Ports Authority.

The effects of clause 2 above are even more intriguing.  In terms thereof the compulsory pilot is deemed the employee of the vessel owner notwithstanding that the preceding clause indicates that the pilot is to be employed by the National Ports Authority.  This means that the owners of the vessel are vicariously liable for the pilot’s negligent actions notwithstanding that the owners were compelled to employ the pilot.  On the positive side, this leaves a third party, such as the owners of another ship, whose ship is damaged by the ship under pilotage with a remedy should the exclusion referred to be applicable.

In the event that the exclusion does not apply, a situation may arise where the National Ports Authority and the owners of the vessel under pilotage are jointly liable.

More bizarrely, clause 2 opens an avenue of recovery for the National Port Authority to recover damages from the owner of the vessel under compulsory pilotage for damage to the National Port Authority’s property caused by the acts or omissions of the compulsory pilot the National Port Authority has licensed, compelled the vessel owner to take on board and for whose services it has charged a fee. As an example, in the incident referred to above with the MV “Julian”, in over-shooting its berth the ship damaged not only the bulk terminal ship loader, but also caused some damage to the quay wall. Theoretically the port authority now has a claim against the ship if it is shown that the port authority’s pilot was negligent. Try and figure that one out!

This article first appeared in the Sunday Tribune.