Fairness and pilot immunity

In one of my first blogs I wrote: “There was a time when vessel owners hired pilots in unfamiliar ports to help their masters navigate between sea passage and dock. Now pilotage is mandatory and hideously expensive, and it is certainly adding insult to injury when a pilot causes damage to a vessel or dock and walks away scot-free. When the pilot was merely an adviser, such exculpation could be supported. But now a pilot’s instructions are virtually mandatory, and the law of civil liability should reflect this.”

Pilots should be responsible for their negligence. This has been reinforced recently by some cases I’ve worked on that involved clear and unmistakable pilot error — some verging on intentional misconduct — that cost my clients hundreds of thousands of dollars.

In one case, a surly and uncommunicative pilot neglected to request a tug secured to the ship’s stern to slow the ship’s closing with a dock on the Mississippi River. When the ship’s master advised the pilot that the ship was closing too fast and asked him to call the tug, the pilot thrust out the VHF walkie-talkie and barked, “You call him if you want!” But by then it was too late, and the shipowner’s insurance companies were facing a $100,000 claim for dock damage and a $250,000 claim for ship repairs.

I can speak from personal experience as well. As I recounted in my book Freighter Captain, I was once under pilotage in the Calcasieu River when the pilot misjudged the current and smashed my ship’s port stern quarter against a steel dolphin (a three-legged mooring structure), knocking it over and leaving a huge dent in the stern of my ship.

After we were all fast (when the mooring or docking procedure is completed and the vessel is safely tied up or moored), the pilot sauntered over to the port wing and casually examined the smashed dolphin. “Looks like you just bought a dolphin, captain,” he remarked. I was so furious I was unable to speak. What I did about it I can’t say in this law-abiding forum, but what I wanted to do about it went even further.

Another case I recently investigated involved a pilot who, according to the master, was engaged in a heated cellphone discussion as the ship approached a notoriously sharp bend in the Mississippi River. Apparently distracted, he forgot to issue helm orders to the quartermaster and the ship went hard aground. He then departed the ship before Coast Guard investigators came onboard and refused to answer the agent’s questions about the incident.

There may have been some validity in the doctrine that a pilot is merely an advisor to the ship’s master in the beginning of shipping, but there is none today. Only a bold and foolhardy master will disobey or countermand a pilot’s “advice” during a vessel’s navigation under pilotage. If something bad were to happen afterward, no amount of reasonable doubt would absolve the master of blame.

Another argument for pilot responsibility is the ability of the pilot’s association to obtain insurance for negligence, just as drivers today carry liability insurance. The original doctrine came into being before the common availability of insurance, when an individual pilot could be driven into bankruptcy by a single mistake. However, this is no longer the case. It is more fair for the pilots as a group to pay for members’ negligence than to make hapless shipowners bear the cost.

And add insult to injury (or more accurately, injury to injury), owners of ships that navigate the Mississippi pay some of the highest pilotage fees in the world. Mississippi River pilots earn over $400,000 a year, a gift that keeps on giving. The Supreme Court held generations ago that only learning at his pappy’s knee could qualify a man as a river pilot — oh, that unknowable river! — so nepotism in the hiring of Mississippi River pilots was found legal.

Issues of pay and nepotism aside, it may be that the pilots of today are no more incompetent or arrogant than those of ages past, but the arguments for making them immune to responsibility for their mistakes have lost their force. Common fairness demands a change.

About the author

Capt. Max Hardberger

Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.

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