According to Dimitra Capas (Solicitor), North P&I Club, and John Southam (Executive (Loss Prevention), North P&I Club, if the pilot informs the Master to perform a manoeuvre that results in an incident, will that prevent the Master being responsible? Almost certainly not, as ship management and navigation in most cases remain the responsibility of the Master.
This is showcased by lines 170 and 171 of the New York Produce which reads:
The owners to remain responsible for the navigation of the vessel ... same as when trading for their own account
For example, in the un-safe berth case The Stork, one of the issues was if the Master acted reasonably when following pilot’s advice on anchoring, in spite of the fact that the Master had issues with the instruction. The court said that pilots possess intimate local knowledge and concluded that 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 to do so.
This practically means that the Master, along with the bridge team, must assess any instruction given by the pilot to ensure that if the pilot's instruction is carried out, the ship will be safe.
Another common misconception is that the pilot's suggestion constitutes an employment order which allows an owner to hold the charterer responsible or be indemnified. Justice Staughton was clear in The Erechthion that while the orders of a harbour master to continue to an anchorage were employment orders, the pilot's suggestion as to where the vessel must anchor was a matter of navigation so the ultimate responsibility lies with Master. Despite the fact that the charterer may pay for the pilot, this does not make the pilot the charterer's servant. In addition, this also does not mean that the charterer will be responsible to the owner for the pilot’s negligence.
However, disagreeing with a pilot is easier said than done. According to North Club, commercial pressure often makes ignoring the pilot's instructions very difficult. Masters are only too aware of the commercial consequences of missing a schedule or creating delays. Nevertheless, it is very important that this is not an overriding factor in the Master's decision.
If the Master decides not to follow a pilot's instruction, and this leads to a delay or extra expenditure, a dispute will most likely follow. But if the Master does not follow the instruction and this leads to an incident, again a dispute will follow.
What is more, SOLAS Chapter V regulation 34-1 states that:
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
Furthermore, Ms. Capas and Mr. Southam , note that SOLAS chapter V is one of the best tools at a Master’s disposal, if they want to ensure that they will remain in command and make a reasonable choice based on safety alone.
It is also crucial that the Master gains relevant evidence to prove that the choice not to follow the pilot's instructions was reasonable. This can include:
- Risk assessments;
- Tidal data;
- Passage plans;
- Navigation warnings;
- Echo sounder records;
- VDR data;
- Master pilot exchanges;
- The bridge logbook entries.
In the most part, courts will sympathise with a Master who has considered the safety of his crew and the vessel and acted reasonably, despite a delay or additional expenditure. On the other hand, if the Master follows the pilot's instruction without thinking fully of the safety factors, and an incident takes place, then SOLAS Chapter V will work against the Master.