Human Element Session

Modernising
Marine Pilotage
Meeting the demands of the working environment
Ravi Nijjer
19th International Maritime Pilot’s
Association (IMPA) Conference
Bangkok
04 - 08 August 2008
 Human Element

Interpreted in the broadest sense;

pilot as the human element within
the present working environment
 Working Environment
 Continuous downward pressure on costs
(Ports seeking greater channel efficiency by
accepting larger and larger ships resulting in
greater throughput but reduction in safety
margins)
 Continuous development and availability
of advanced technologies at lower and
lower cost that have the potential of
radically transforming the nature of work
including pilotage (GPS, GLONASS,
Electronic Charts, AIS, VDR, e-nav etc)
 Working Environment
 Availability & application of sophisticated safety
management systems for managing critical tasks such as
pilotage (Safety Case – Jens Rasmussen & James
Reason Model; slides 5-9)
 Increasing demands and very high levels of accountability
of professionals (Errors in professional judgment
increasingly viewed as criminal negligence)
 Widespread awareness that major accidents in confined
waters can cause severe threats not only to ships, crews
and cargoes but also to the public, environment, property,
and local and regional economies
Zero tolerance for marine accidents but especially those
that involve loss of life and environmental pollution
 Increasing criminalization of seafarers including pilots
 Security Concerns (Application of ISPS Code in pilotage
domain)
 Reason
Swiss Cheese Model
Basis of IMO Accident
Investigation Code & also widely
used in other high risk industries
from Aviation to HealthCare
Reason Swiss Cheese Model

Defenses
 Reason Model of Accident Causation

Organization Task/Environment Individuals

Defenses
Organizational Local Factors Active Failures
Factors
•Mistakes
•Morale Accidents
•Communications
•Slips
•Fatigue
•Management Structure
•Lapses
•Equipment
•Incompatible Goals
•Violations
•BRM, Procedures, etc.

Latent Failures
 History
Knowingly off
Were the Unauthorized Pass unsafe
No No violating
actions as substance? No substitution Yes acts?
safe
intended?
operations test?
procedures?

No

No Yes
Yes Deficiencies
Yes Yes No
in training &
selection or in
Were procedures
experience
available,
Were Medical workable,
consequences condition intelligible and Yes Blameless
No
as intended? correct error but Blameless
corrective error
No training or
Yes Yes System counseling
No Possible
Yes induced indicated
negligent error
System error
Possible induced
Substance reckless
Substance error
abuse with violation
Sabotage, abuse mitigation
malevolent without
damage, mitigation
suicide. etc
Culpability Diagram
James Reason
 Traditional Pilot Centred Approach
 Origins in the notion of the pilot as ‘an
independent professional* man
contracted to navigate the ship’ predating
modern era of mainly compulsory pilotage
 This notion reinforced by the perceived need
‘to remove the pilot’s employer as far as
possible from all liability for pilot error’
after pilots formed associations or became
employees right into the modern era
 In Australia & other countries several pilot
organizations setup on the above basis
(Australian Reef Pilotage, Sydney Pilot
Service, Milford Haven Pilotage Ltd, etc)
*Incompatible with a safety management approach
 Traditional Pilot Centred Approach
 Structure based on best legal advice despite:
‘Nothwithstanding, anything in any public or
local act, the Owner, or Master of a vessel
navigating under circumstances in which
pilotage is compulsory shall be answerable for
any loss or damage caused by the vessel or by
any fault in the navigation of the vessel….’ (U.K.
1913). Similar legislation in other countries

(In compulsory pilotage the pilot is in charge of

the navigation but in a legal civil liability sense
considered an adviser to the master)
Immunity of Pilot & Employer
The civil immunity of the pilot and
his/her employer withstood numerous
challenges from 1913 onwards on the
basis of ‘lending certainty to
commercial dealings’ until the ‘Sea
Empress’ grounding at Milford Haven
on 15 February 1996
 Sea Empress
Milford Haven 15 February 1996
 Sea Empress - Chain of Events
 Sea Empress grounding Milford Haven - 15 February 1996
 MAIB Report and Recommendations - 27 March 1997
 ‘Friends of the Earth’ releases comments on MAIB Report
and threatens private action against port - September 1997
 Prosecution of Milford Haven Port Authority by U.K
Environment Protection Agency under Water Resources Act.
Port pleads guilty to criminal uninsurable ‘strict liability
offence’
 Port fined £4 million plus costs – 15 January1999.
Deficiencies in port management highlighted in Judgement
 Appeal Court reduced fine to £750,000 plus costs – 16 March
2000 after port pleaded financial hardship
Immunity of pilot and employer & legal barriers bypassed
by application of strict liability criminal law
 MILFORD Haven Port Authority through its insurers paid
International Oil Pollution Compensation Fund £20m ($50m)
over the Sea Empress oil spill, halting civil action brought by
the fund and Skuld P&I Club over the accident – 22 October
2003 (Civil liability follows criminal liability)
Sea Empress - Basis of Plea
“The port authority created and then operated
a system which resulted in Sea Empress
attempting to enter the Haven… at a time as
late or later, in terms of proximity to low
water, than any comparable vessel had
attempted previously. It thereby put (the pilot)
in a position where as a direct consequence
of the management system operated by the
port he could make an error* of navigation.”
Mr. Justice David Steel 1999
*Error seen as a consequence rather than a
cause
Sea Empress - Judgement
“It was not simply a question of
furnishing a pilot who then commits an
act of negligent navigation dislocated
from the system of training and
classification of pilots and from port
control of navigation.”
Mr. Justice David Steel 1999

The cause of the accident linked to the port bypassing

the legal barrier of setting up Milford Haven Pilotage
Ltd as a separate company & the pilots direct employer
Sea Empress - Strict Liability
“The danger of oil pollution is so potentially
devastating, and so far reaching and so costly to
rectify that Parliament attaches a criminal penalty to
breach of section 85 even where no lack of care or
due diligence is shown….
Strict liability is imposed in the interests of
protecting controlled waters from pollution.
So although the Port Authority is fully entitled to rely
strongly on its relative lack of culpability… it cannot
reasonably hope to escape a very substantial
financial penalty when its commission of an offence
against the section has such serious results.”
Mr Justice Alliot and Mr Justice Newman Court of Appeal 2000
Sea Empress - Compulsory Pilotage

“The significance of these matters is all the greater in the

context of a scheme of compulsory pilotage. Shipowners
and masters must needs engage a pilot. They have to
take the training, experience and expertise of the pilot at
face value. While the master remains nominally in
command, it has to be recognized that the pilot had the
“con” and a master can only intervene when a situation of
danger has clearly arisen. The port authority imposes a
charge for pilotage but in the same breath has the added
advantage of the pilot being treated for purposes of civil
liability as an employee of the shipowner. All this calls
for the highest possible standards on the part of the
port authority.” Mr Justice David Steel (1999)
 Industry Standards
 Under recent law reform mere compliance with industry
standards may not be sufficient to avoid a conviction.
The fact that a given practice is common within a
particular industry is a relevant factor for consideration
but does not of itself mean that observance of that
practice cannot fall far below what can reasonably be
expected. It will not be a defence if a jury is not
impressed by the standards which the industry has set
for itself.
 A sophisticated human factors based approach is
increasingly being used to investigate accidents and
incidents in different industries. All aspects investigated
and scrutinised from selection, training and operational
practices to safety systems. In Australia the universities
are also allowed to train surgeons because the
profession’s training system was not based on proper
scientific principles
Protection of the environment
 An increasing public perception that protection and
preservation of the environment is an issue which is
of crucial importance to the future of the human
race.
 International bodies, governments and other public
bodies are pushing through legislation designed to
achieve the objective of protecting the environment.
 A widely held belief that the introduction of ‘strict
liability’ offences is necessary to achieve the
objective despite the undesirable consequences for
a particular industry such as shipping
Strict Liability – Criminal Aspect
 Generally to be guilty of a crime, a person must act
with ‘criminal intent’
 For health and public welfare violations ‘strict
liability’ can apply such as an ‘accidental spill after a
casualty’
 Strict liability means that an individual can be found
criminally liable without having had criminal intent in
the traditional sense*
 Strict liability is increasingly being applied in cases
of environmental pollution
 Strict liability offences carry jail sentences and fines
(*Under strict liability it cannot be said that pilot
error leading to a collision or grounding is an
extraordinary event – Sea Empress)
‘Cosco Busan’
( November 2007)

Strict Liability
‘Cosco Busan’ allision with Bay
Bridge

The container ship M/V Cosco Busan

struck the Bay Bridge in San Francisco Bay
at 08:30 on 07 November 2007. An
approximate 100' gash in the hull of the
vessel resulted, and 58,000 gallons of fuel
oil was released into the water.
‘Cosco Busan’
 Cosco Busan – Specific Charges
1. Clean Water Act – Negligent Discharge of a Pollutant

The Pilot,
did negligently cause the discharge of oil in such quantities as may be harmful from a
vessel, the M/V Cosco Busan, into and upon the navigable waters of the United States,
without a permit. Specifically, on or about November 7, 2007, Defendant, while piloting
the M/V Cosco Busan, caused approximately 58,000 gallons of heavy oil to be discharged
from the vessel into San Francisco Bay by acting in a negligent manner, that included the
following:
 (a) failing to pilot a collision free course;
 (b) failing to adequately review with the Captain and crew of the M/V Cosco Busan prior
to departure the official navigational charts of the proposed course, the location of the
San Francisco Bay aids to navigation, and the operation of the vessel's navigational
equipment;
 (c) departing port in heavy fog and then failing to proceed at a safe speed during the
voyage despite limited visibility;
 (d) failing to use the vessel's radar while making the final approach to the Bay Bridge;
 (e) failing to use positional fixes during the voyage; and
 (f) failing to verify the vessel's position vis-à-vis other established and recognized aids to
navigation throughout the voyage.
 All in violation of Title 33, United States Code, Sections 13 19(c)(l)(A) and 1321(b)(3), a
Class A misdemeanor.
 2. Migratory Bird Treaty Act
The Pilot,
without being permitted to do so by regulation as
required by law, did take migratory birds, including at
least one Brown Pelican, (Pelecanus occidentalis),
Marbled Murrelet, Brachyramphus marmoratus), and
Western Grebe, (Aechmophorus occidentalis).
All in violation of Title 16, United States Code, Sections
703 and 707(a), and Title 50, Code of Federal
Regulations, Sections 21.1 1,20.71 and 20.72, a Class B
misdemeanor.
The outcome of this case pending
Pilotage Incident
Melbourne
‘OOCL Sydney’ collision with
recreational vessel on 30 October
2005
Pilotage Incident
Melbourne
‘OOCL Sydney’ collision with
recreational vessel on 30 October
2005
 Melbourne Pilotage Incident
Chronology
30 October 2005
- “At around 8.50 a.m., just south of the Fawkner Beacon, after changing course
suddenly in order to avoid a small recreational vessel, the ‘OOCL Sydney’
collided with another recreational vessel, forcing its occupants, Robert and Luigi
Corvetti, to jump into the sea (“the first incident”) The ‘OOCL Sydney’ drifted
north-west into the Hobson Bay anchorage to await confirmation that the
Corvettis were safe”

- “At around 9.15 a.m., as the Sydney turned back towards the Melbourne
Channel, it narrowly avoided a third recreational vessel occupied by David and
Steven Moore, who had to cut anchor to get away (‘the second incident’)”
- Pilot received summons from Water Police

31 October 2005
Pilot interviewed by Water Police
 Melbourne Pilotage Incident
Chronology
04 January 2006
Accident Inspector appointed by Director of Marine Safety interviewed pilot
31 January 2006
Accident Inspector submits report
16 June 2006
Director of Marine Safety cancelled all pilot licences held by pilot under the Marine Act
1988 and recommends criminal prosecution to the Director of Public Prosecutions
29 June 2006
Pilot applied to the Victorian Civil and Administrative Tribunal (VCAT) for an order staying
the operation of above decision
3 August 2006
VCAT made an order staying the operation of the decision
29 October 2006
Pilot informed of criminal proceedings
19 December 2006
After hearing from 16-20 October & 25 October VCAT suspends pilot’s licence for 3
months - in effect from 18 December to 03 February 2007
 Prosecution of Pilot
Melbourne Magistrates’ Court - Criminal
Charges:
 Marine Pilot endangering of vessel (2)
 Endangering vessel of crew (1)
 Negligently endangering anyone on vessel (2)
 Operating vessel at speed or manner dangerously (4)
 Operate vessel carelessly (2)
Total: 11 Charges
Hearing 06 August 2007
 Prosecution of Pilot
Melbourne Magistrates’ Court - Criminal
Charges:
Marine Pilot Endangering of vessel (2)
A pilot who is in charge of a vessel and who does or
omits to do anything, wilfully or negligently, that is
likely to endanger a vessel or its crew is guilty of an
indictable offence and liable to imprisonment for a
term of not more than 2 years or a fine of not more
that 100 penalty units
 Prosecution of Pilot
Acts tending to endanger vessel or crew (1)
Any person who, whether wilfully and negligently-
(a) Does an act tending the immediate loss or destruction of, or serious
damage to, a vessel or its cargo; or
(b) Does an act tending immediately to endanger anyone belonging to or
on board a vessel; or
(c) Fails to do an act that is reasonably necessary to protect a vessel or
cargo from immediate loss, destruction or serious damage; or
(d) Fails to do an act that is reasonably necessary to protect anyone
belonging to or on board a vessel from immediate danger
is guilty of an indictable offence and liable to imprisonment for a term
of not more 2 years or a fine of not more than 240 penalty units or
both
 Criminal Prosecution of Pilot
 Negligently endangering anyone on vessel (2)
Under ‘Duty of Care’

 Operating Dangerously (4)

A person must not operate a vessel at a speed or in a manner in which it is
dangerous to the public, having regard to all the circumstances of the case.

Penalty: 240 penalty units or imprisonment for 2 years or both

 Careless Operation (2)

(1) A person must not operate a vessel carelessly.

Penalty: 12 penalty units for a first offence

25 penalty units for a second or subsequent offence
Total: 11 Charges (Hearing 06 August 2007)
 Criminal Prosecution of Pilot
 06 August 2007
“Melbourne pilot is due to be sentenced tomorrow
pleading guilty to one charge under the Marine Act of
negligence, causing serious damage to a vessel or its’
cargo” Lloyd’s DCN
 07 August 2007
“Melbourne pilot was given a criminal conviction and
fined $AUD5,000 today after pleading guilty to one
charge under the Marine Act of negligence, causing
serious damage to a vessel or its’ cargo” Lloyd’s DCN
If there had been a death the pilot would have
almost certainly have faced a manslaughter
charge
 Response
How should pilots respond to this changed
working environment?
Answer depends on whether pilots feel they can
change the surrounding reality and preserve the
existing system (delusional) or make changes
and adapt to the changed working environment
The remaining presentation is based on making
changes and adapting to the working
environment – Modernisation
 Traditional Pilot Centred Approach
 Has a good record but is not adequate to meet present
day demands of safety
 It relies on unrealistic notion of unvarying error free
performance by the pilot
 Experience has shown that human error is inevitable - in
the nature of things
 ‘Pilot centred’ approach is susceptible to ‘one person
error’ accident.
 A ‘Single person error’ accident is no longer acceptable
in any high risk industry in Australia and increasingly in
other countries
 Therefore need to shift from ‘pilot centred’ to
human factors based ‘systems’ approach
 Systems Approach to Safety
 Is derived from High Reliability Organizations
(HRO’s) such as in corporate aviation, military
(aircraft carriers), nuclear power generation etc.
 HRO’s operate in a high risk environment
where accidents can have very serious
consequences and cannot be hidden.
Marine pilotage is also an area where
accidents can have very serious
consequences and cannot be hidden
 Pilotage – Systems Approach

Hardware Software
(People)

Materials, Design,
Machinery, Equipment,
(Portable Piloting Unit) etc.
Human Factors

Safety Management
Selection System
and Training (Organization, Proactive,
Resource Reporting)
Management
Individual
Technical Skills Safety Culture
and Experience ‘Holy Grail’
 Modern Justification for Pilot
 Up to date knowledge of fairways and conditions
 Expert shiphandler in port conditions
 Knowledge of regulations and by-laws
 Port/State/National Representative involved in protection
of port/public/state interests such as infrastructure and
waterways
 National Security
 Independent Judgement
Must work with bridge team but also exercise independent judgement
if necessary.
 Expert in development & application of systems approach
to safety in piloting conditions
 Systems Approach
 Pilot is now joint manager of a high risk operation
 Acknowledgement of pilot as manager of high risk
operation raises application of human factors based
systems approach to prime importance.
 Requires development of ‘selection criteria’ and proper
training in:

- Shiphandling (manned model, on the job and

simulator based) using a competency based
approach
- Passage planning (Piloting to a passage plan)
- Application of modern technology (Instrument
piloting)
- Application of error management (BRM) principles
and techniques in pilotage

in addition to local knowledge

 Vision
Piloting within a BRM framework to a
proper passage plan with a reserve of
practiced and regularly validated skills to
deal with abnormal and emergency
situations

‘Truly superior pilots are those who use their

superior judgement to avoid those situations
where they might have to use their superior
skills’
 Modernisation – Implementation
Issues
 Involves shift from ‘pilot centred’ to a human
factors based ‘systems’ approach
 Shift to ‘systems’ approach implies ‘radical
change’ in ‘professional culture’ of pilots
 Very difficult task and should not be under-estimated.
‘Equivalent to trying to change the framework of a
building and at the same time fixing the
foundations while still living in the house and for
public appearances pretending that nothing
unusual is happening’
 Transition
 Pilots need to understand the reasons for change
 During the critical transition phase from the ‘pilot
centred’ to ‘systems approach’ informed understanding
by Regulators and Accident Investigators is required
 Change of this magnitude requires regulators and
accident investigators to provide encouragement and
adopt a supporting and nurturing role
 Proper accident investigation is critical for
improving safety
 Strong role for retraining and continuous professional
development in implementing systems approach
 Access to a proper simulator can be very helpful in
accelerating transition
 Modernisation - Australia
 Modernisation (systems approach) an AMPA
initiative
 Understanding has now achieved critical mass
 Blueprint has been developed and is in various
stages of implementation in Australia
 With ready access to a proper simulator we can
look forward to rapid implementation
Michael Grey on ‘Acceptable Risk’
“We can laugh about our risk averse society, and the
high priests of “elf’n Safety”*, but you do not argue
with prosecutors bearing charges and demanding heavy
sentences if things go wrong.
…And it is us, not society who will have to change
our notions about risk…”
The precautionary principle defines the risk-
averse society
Lloyd’s List, 19 February 2007
(Article following Judgement on ‘Zim Mexico III’)

* elf’n Safety = Health and Safety

 Acceptable Risk
 Where do we get our ideas/beliefs on
‘acceptable risk’?
 After recent pilotage accidents and increasing
criminal prosecutions do we need to change our
ideas on ‘acceptable risk’?
 Why is it important to get a ‘fix’ on ‘acceptable
risk’ in pilotage in what is now a ‘risk averse’
society?
 What can be be done?
 Food for thought
The late great US Coast Guard Captain Dominic
Callichio, who reformed American maritime law…,
theorised that so many maritime
rules were created so that no rules
were clear. This led to confusion in
operation and policy but complete
clarity in hindsight and
prosecution.
 Conclusion
“As the world’s population becomes more
environmentally aware and sensitive, tolerance for
marine accidents resulting in pollution of the seas
and environs… becomes less and less. As a result
and because of enormous popular demand and
support, prosecution of pollution incidents and
polluters, even innocent ones does not appear to
offend anyone’s sensibilities, other than those in
the maritime industry.”
Michael G. Chalos
 Conclusion
“Under the circumstances, the industry
needs to carefully implement and monitor
procedures, practices and regulations to
minimize the risk of maritime accidents and
pollution.”
Michael G. Chalos

(In terms of pilotage this implies developing and

implementing a transparent safety management
system that includes operating procedures and the
selection and training of pilots)
 Conclusion
“At the same time the industry through its various trade
organizations, must actively petition the governments
and regulatory bodies around the world to de-
criminalize maritime accidents in the absence of
criminal behavior”
Michael G Chalos* ‘The Criminalization of
MARPOL violations and maritime accidents in the
United States
*Leading US maritime lawyer/attorney who defended
Captain Hazelwood of the ‘Exxon Valdez’
 Finally
 We are now faced with new realities and problems for
which there are no ready made solutions.
 Pilotage is located at a strategic point in the shipping
industry. With the right mindset pilots are in a position
to provide the leadership in helping the shipping
industry in understanding and properly implementing a
systems approach

I hope this presentation helps in providing the

stimulation for seeking, developing and implementing
new solutions.
 END
Thank You
Ravi Nijjer
Principal Consultant
Marine Consultancy Group Pty Ltd
Tel: + 61 3 9830 0649
Mobile: + 61 419 565 860
ravi.nijjer@marcon.com.au