'The Plot of the Pilot': Pilotage and Limitation of Liability in Maritime Law

• Author: Kerryn Woonings
• Position: LLB. This paper was written as part of the assessment in the unit Admiralty Law at Murdoch University School of Law (2009) and was highly commended by the Morella Calder Prize committee (2010)
• Pages: 126-137

‘THE PLOT OF THE PILOT’: PILOTAGE AND LIMITATION OF LIABILITY IN

MARITIME LAW

Kerryn Woo ning s∗

1 Intro duction

It has been settled that, ultimately, a shipowner is responsible for what happens to his ship.1 But consider the

following scenario. A vessel is heading into a port with compulsory pilotage. The pilot provides an on-shore

direction to the master. The master of the vessel follows that direction, and on ent ry into port, the vessel damages

the wharf. Who is responsible for the damage? If the master, following an on-shore direction, enters a

compulsory pilotage area without a pilot on board, is he guilty of an offence for proceeding without a pilot? Is

the pilot liable for acting outside of pilotage? It is a grey area for many harbour authorities in Australia.2 A

number of important questions remain unanswered. When does pilotage actually commence? Should the

statutory rules regarding limitation of liability for pilots be changed to hold negligent compulsory pilots

individually responsible for actions outside of pilotage? If a master follows a radioed direction provided by an

on-shore pilot, should he be liable for proceeding without a pilot in a compulsory pilotage area? There is a

general assumption that the act of pilotage does not commence until the pilot is on board the vessel.3

Unfortunately, Australia has very limited case authority on these issues, and there is then a tendency to just

throw hands up in the air and leave a two hundred-year tradition alone.

At present there is no case law or statute that provides any assistance with a pilot’s negligence in cases of on-

shore direction. If the legal definition of conduct requires a pilot on board, then on-shore directions are outside of

pilotage. An on-shore direction is simply that - a direction. A master will be held liable for proceeding without a

pilot on board.4

The master is on board the vessel, and remains wholly responsible for its navigation. He can

choose how directions (advice) are complied with.

This paper considers the Australian position on pilotage in an attempt to answer these questions. Discussion will

focus on Australia’s pilotage origins, and the position in the United Kingdom. This is then compared to the

pilotage regimes of the United States and Canada. Finally, the introductory questions will be revisited with a

look at how Australia’s pilotage laws could be changed and the resulti ng ramifications.

2 Marine Pilotage in Austra lia

2.1 When Doe s Pilotage Actually Commence ?

The pilot is the ‘controller of collisions’. A pilot is the person with the best knowledge of the port; better

equipped with requisite local knowledge to get the vessel in and out of port safely. However, this provides no

assistance on the question of when pilotage actually commences. The difficulty is that pilotage in Australia is

steeped in two hundred years of tradition, dating back to the Imperial Statutes.5

Therefore, it is important to first

look at Australian statutory instruments. In particular, we need to determine whether these statutes provide any

clear answer as to when pilotage actually commences, or more specifically, whether a pilot must be on board for

pilotage to be underway.

There is a running theme throughout Australian legislation, which points to pilotage involving conduct of a

vessel. Our analysis will focus on the importance of the meaning of ‘conduct’ and how this affects the various

interpretations of the role of a pilot.

∗ LLB. This paper was written as part of the assessment in the unit Admiralty Law at Murdoch University School of Law (2009) and was

highly commended by the Morella Calder Prize committee (2010).

1 Oceanic Crest Shipping Company v Pilbara Harbo ur Services Pty Ltd (1986) 160 CLR 626, 641 (Gibbs CJ).

2 Email from Susan Fryda-Blackwell to all Australian Port Authorities, 30 July 2009.

3 Michael White, Australian Maritime Law (Federation Press, 2nd ed, 2000) 288. See also Justi ce Hill’s comments in The Andoni [1918] P 14,

18.

4 Rindby v Brewis (1926) 25 Ll. L. Rep. 26, 26.

5 The Merchant Shipping Act 1 854 (Imp) and Merchant Shipping Act 1894 ( Imp) were a result of the contentious first Statute in 1717.

(2010) 24 A&NZ Mar LJ

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