TO THE HOUSE OF COMMONS SELECT COMMITTEE ON TRANSPORT STANDARDS IN THE NATIONAL MARINE PILOTAGE SCHEME

CALL FOR EVIDENCE 10th July 2012. PREAMBLE SUBMISSION IN RESPONSE - 14th August 2012

I am most grateful to Mr Andrew Miller, Member of Parliament for Ellesmere Port and Neston, for his assistance in drawing this matter to the attention of the Select Committee. I have known pilotage all my life. My father served as a licensed Liverpool Pilot from 1936 until his retirement in 1975. For my own part I was born in 1943 and was educated at Liverpool College. In 1959 I passed GCE O levels (Oxford & Cambridge Board) in Mathematics, Physical Geography, French, German, English Language and English Literature. I then left school and joined the Pilot Service at Liverpool as a sixteen-year old apprentice. I was granted a Third Class pilots licence in 1966, Second Class in 1968, First Class in 1971 and Senior First Class (or unrestricted) in 1976. The classifications relate to the size of vessel in respect of which any pilot may become qualified, after due process of examination and experience, to conduct the pilotage. In the early 1980s, encouraged by my father (who was himself the son of a lawyer) I began to take a closer than usual interest in pilotage law. I enrolled at Liverpool Polytechnic as a parttime student. In 1988 (following a loss of hearing), my licence as a pilot was revoked by the Pilotage Authority. I had served for twenty-two years as a licensed pilot. In 1989 I graduated LLB (Honours 2:1) at Liverpool and in 1990 I was Called to the Bar at the Inner Temple in London. Remaining in London I served a pupillage in Admiralty law and then returned to chambers in Liverpool, from which I practised at the criminal Bar until 1994. Continuing interest in pilotage and commercial matters led me to convert to practice as a solicitor and I was admitted to the Law Society Roll in 1995. I have remained as a solicitor in private practice ever since. In 1994 I wrote a short book entitled Beyond The Bar A Light History of the Liverpool Pilotage Service, published by Laver Publishing (1994). The book has a foreword by Sir Malcolm Thornton MP (1979-97). A Second Edition of the book was published in 2004. A copy of the Second Edition appears at Appendix 12. The evidence which appears in the following six pages has been gathered during all of the above experience. I make my submissions as a concerned member of the public and in no other capacity. Barrie Youde Deva Bank Parkgate Neston Cheshire CH64 6RW 14th August 2012 RA Wilkinson & Co Solicitors 5, Mortimer Street Birkenhead CH41 5EU Tel: 0151 647 6259

EVIDENCE INTRODUCTION 1. The case which gives cause for concern is the abandonment by two designated Competent Harbour Authorities (CHAs) of regulated standards in compulsory pilotage areas under the Pilotage Act of 1987, contrary not only to international law but also in express breach of the common law of the Parliamentary jurisdiction. It will be shown also that successive Secretaries of State have been complicit in the said breaches, and have in consequence failed in their inherent duty to maintain order. Remedial action is therefore called for as a matter of some urgency in order to prevent further disorder.

2. A compulsory pilotage area may be defined as an area in which a CHA considers, in accordance
with Section 2 of the 1987 Pilotage Act, that pilotage should be compulsory.

3. The motive for the conduct of the two CHAs (first at the Humber and later repeated at the Clyde)
is pure commercial greed. There is no other motive. It is otherwise inexplicable why anybody, least of all a CHA, would wish to grant authorisation or promotion to pilots whose qualifications do not meet minimum established standards, which is precisely what has happened on a large scale. All law confirms that the highest possible standards are called for in compulsory pilotage areas. THE HISTORICAL POSITION 4. Pilotage is one of the oldest and most public of all services, having been governed by common law, Parliamentary statute law (at both primary and secondary level) and international law as developed throughout all history. Records available on the internet today show the state control of pilotage in the 13th century by the Code of Oleron, which (duly amended with the passage of time) remains the basis for much commercial maritime discipline and regulation.

5. Standards of qualification for pilots in compulsory pilotage areas have been required by law for a
longer period of time than have standards of qualification for any other class of mercantile mariner; and pilots have been examined and authorised by licence or other similar instrument since the middle ages. By contrast, examinations for Masters and Mates in the Merchant Service were not introduced until the middle of the 19th century. In the late eighteenth century (1797) a licensing authority became empowered to place restrictions on a pilots licence, commensurate with his knowledge and experience; and the practice thus developed of restricting less experienced pilots to the pilotage of vessels of smaller size as a common-sense measure in the interests of public safety. By 1833, Bye-laws were introduced by Parliamentary Act in order to govern the restrictions (which are otherwise known as classifications or post-qualification experience) and other matters more closely.

6. Bye-laws were maintained nationally under Section 18 of the Pilotage Act of 1913, by which time
the standard practice had developed in major ports that, even after due examination as to his knowledge, post-qualification restrictions would be placed on the licence of any pilot for his first four years in practice. The Humber and the Clyde were amongst the many ports which applied the four-year restriction as a standard measure.

7.

Appendix 1 shows Bye-Laws 65-75 as applicable at Liverpool in substantial detail under the 1913 Act. Bye-Laws 16 and 17 as applicable at the Humber at the same time are shown at page 61 of Appendix 2. - and as a matter of common law still is - adjudged by regulated standard that the pilot would be sufficiently experienced to undertake the pilotage of a ship of any size.

8. The Bye-laws introduced the pilot by incremental stages to the pilotage of larger ships until it was

9. Prior to the introduction of the 1987 Pilotage Act, pilotage was administered on a port-by-port
basis by Trinity House or other local Pilotage Authorities. The Act of 1987 gives administrative power for the first time to harbour authorities (CHAs) whose prime motive is to make commercial

gain rather than to conduct any administration of pilotage. The administration of pilotage had not previously rested with any commercial body; and this is the cause of the present mischief. THE MODERN LAW 10. Most pilots throughout history have served on terms of self-employment as a matter of good practice. Many still do so today by the express terms of Section 4(2) (b) of the 1987 Act. There is an obligation under Section 4 (1) of the Act that a CHA must offer terms of employment to pilots but there is no power given to any CHA to impose terms of employment on anybody where terms of employment are not wanted.

11. Upon the repeal of the Pilotage Act of 1913 and the Bye-Laws made thereunder, standards of
post-qualification experience were and still are - maintained by purely ad-hoc means on a portby-port basis. (Please see Analysis of present standards maintained at major ports at Appendix 2.) It will be seen that in some ports the standard period of restriction on a pilots licence is confirmed at more than four years.

12. The propriety of the regulated restrictions was confirmed in two cases which came before the
Courts at an apparent turning point in the law, on the introduction of the Pilotage Act of 1987 which repealed the Act of 1913. In the first case (the Esso Bernicia, which was heard in the House of Lords, - report shown at Appendix 3), the facts had arisen during the currency of the 1913 Act. Following a long line of ancient authority, the House of Lords held (at page 2 of Appendix 3) that a pilot is an independent professional who is engaged by a shipmaster to act as a principal and not as the servant or agent of any harbour authority. The second case (the Cavendish report shown at Appendix 4) was heard in the High Court in 1993, when it was held that the introduction of the Act of 1987 had changed nothing of any significance; and that the duty of a CHA in pilotage is (as had been the duty of Trinity House or other Pilotage Authority beforehand) limited to maintaining an adequate supply of properly qualified pilots to be engaged by ships navigating in a compulsory pilotage area. The Cavendish case of 1993 is therefore of high significance. It was emphasised in the judgment that a CHA performs no pilotage; and that any pilotage is necessarily performed by authorised professional pilots. It follows that the function of a CHA in pilotage is a purely administrative one.

13. The judgment in the Cavendish case was delivered by Mr Justice Anthony Clarke, as he then
was. Subsequently Mr Justice Clarke became Lord Clarke of Stone-cum-Ebony, Master of the Rolls and one of the first judges to be appointed to the recently-created Supreme Court. Where in Lord Clarkes judgment it is stated (at page 298 of Appendix 4) that it is the function of a CHA to maintain an adequate supply of properly qualified pilots and (at page 301 of Appendix 4) that the position is in my judgment the same now as it was under the 1913 Act, the corollary is that upon the repeal of the Act of 1913 and the Bye-Laws made thereunder, there was no Parliamentary intention that any of the standards of post-qualification experience written in the former Bye-Laws should be abandoned. Manifestly there was no Parliamentary intention that the new Act of 1987 should be used as an excuse for disorder. Rather, the newly-created Competent Harbour Authorities were placed in a position of trust to maintain the proper standards established by the former Pilotage Authorities over many years. In the two CHAs which are of concern today, there has been a clear breach of the Parliamentary trust imposed in them.

14. Of even greater legal significance is the case of the Sea Empress (as reported at Appendix 5)
which concluded in the Court of Criminal Appeal in April 2000, where it was shown that maladministration had occurred at Milford Haven shortly before the events which are of concern today. The vessel Sea Empress was a large oil-tanker and had been under pilotage in a compulsory pilotage area in 1996 when she grounded on rocks at the entrance to the Haven. Widespread pollution, environmental damage and economic loss was caused. It was a major disaster. The Department for Transport, Local Government and the Regions (DTLR, through its subsidiary Environment Agency) brought a criminal prosecution in respect of the pollution against the authorising body (the CHA) of the compulsory pilot.

15. The case was heard at first instance in Cardiff Crown Court in 1999 before Mr Justice David
Steel, the presiding judge of the Admiralty Court. The CHA pleaded guilty to the charge. In summarising the facts prior to passing sentence, the learned judge found that the pilot (as

provided to the vessel by the CHA) was neither negligent nor incompetent but was specifically lacking in post-qualification inexperience.

16. The express words of the judgment include:- 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 provided at face value. While the master remains nominally in command, it has to be recognized that the pilot had the con[duct of the navigation] and a master can only interfere 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. (p.7)

17. The CHA (having pleaded guilty to the criminal charge against it) appealed to the Court of
Criminal Appeal against the severity of the sentence imposed in Cardiff Crown Court. On hearing the Appeal in April 2000, Lord Bingham the Lord Chief Justice allowed a reduction in the sentence on the grounds (amongst others) that, subsequent to the incident, the CHA had exerted its best efforts to improve the regulated standards of experience amongst the pilots provided for engagement by vessels; and thereby to comply with the obligation to maintain the highest possible standards in a compulsory pilotage area, as determined at common law. In short, the classification rules/post-qualification rules at Milford Haven were significantly tightened up. THE POLICY OF THE DEPARTMENT FOR TRANSPORT THE HUMBER 18. On 11th June 2001 (barely twelve months later) an extraordinary thing then happened in the compulsory pilotage area of the Humber. In a contractual dispute, the CHA stated untruthfully that it had no choice other than to revoke the authorisations of all of its authorised pilots; and, to compound its impropriety, to do so on Notice (Appendix 6) in January 2002, which time-scale of seven months obviously precluded the maintenance of any of the existing regulated standards of post-qualification experience amongst any new pilots who might replace them. By the terms of the Notice, which was issued to every authorised Humber pilot, the maintenance of established standards of experience after January 2002 became an obvious chronological impossibility. As all other ports had done until that time (and as most still do) the Humber CHA had maintained regulated standards on the basis of a contract with the pilots. In other words, there is and always has been common agreement between pilots and harbour authorities that the maintenance of standards is necessary.

19. The Humber CHA was under no obligation at all to behave as it chose to do. The statutory power
to revoke the authorisation of any pilot is discretionary and is not obligatory in any circumstances (Section 3 of the 1987 Act). Moreover, the power is in any event secondary to the obligation to keep under consideration matters relating to compulsory pilotage, which is regulated by Section 2 of the Act. The untruthful statement that the CHA had no choice was a disingenuous and obvious attempt to persuade authorised pilots to accept the terms of employment which are referred to in the Notice-letter of 11th June 2001; under threat of disqualification if unwilling. The DTLR was warned many times and by many different voices (including Members of Parliament) as to the impropriety and the likely consequences of the Notice which the CHA had issued. Nevertheless, the DTLR refused to intervene.

20. In consequence and as threatened, on 26th January 2002 the CHA abandoned all regulated
standards of experience, executed its Notice as delivered, de-authorised all of its pre-existing authorised pilots and granted authorisations to new pilots whose experience fell far, far short of the previously regulated standards. Standards of experience were not maintained at all.

21. The DTLR, for its part, in April 2002 then published a Report (Appendix 7) entitled The New
Humber Pilot Service which confirmed that the new arrangement (adopted in January 2002) had abandoned not merely some but all regulated standards of experience for authorised pilots; and therefore did not comply with the principle identified in the Sea Empress case. The DTLR made no effort to address the obligation that all relevant standards need not only to be maintained in any and every compulsory pilotage area, but maintained at the highest possible level. The

abandonment of standards of experience was confirmed by a Pilotage Direction issued in July 2002, which stated that the authorisation of Humber pilots would henceforward be merely on the recommendation of the Harbour Master; and that any standard or regulated measure of experience for pilots would therefore no longer apply. (The Pilotage Direction is shown at page 80 of Appendix 2.)

22. To make matters substantially more dangerous, in a major port it is unusual for a Harbour Master
to hold any authorisation in pilotage at all. For that reason, specifically regulated standards of post-qualification experience are particularly important in pilotage anywhere. It is grossly improper that an authorisation in the name of the state for the purposes of safe navigation should occur on the mere recommendation or judgment of any one person alone; particularly when that person is not (or might not be) himself authorised in any relevant way. The grant of an authorisation is a grant of power; and it is not open to anybody to grant a power which he does not himself possess. (Nemo dat quod non habet.)

23. The DTLR Report confirms (at Paragraph 10.9) that the obligations of a CHA in a compulsory
pilotage area are strict and onerous. The entire Report, however, represents an open travesty of any compliance with those obligations. The Report shows a carefully detailed catalogue of the disorder and impropriety which had arisen; which is not a thing which Parliament ever intended should happen, quite regardless of any case law. The Report refers (at Paragraph 7.7) to a crisis which had arisen, following a lawful strike by the pilots which began (with the approval of the Court of Appeal) on 12th December 2001 in protest at the behaviour of the CHA; and (in a table at Paragraph 7.15) to the 946 occasions on which the CHA was unable to provide any pilot at all (whether experienced or otherwise) to ships in want in a compulsory pilotage area. Of those 946 occasions, the same table shows that no fewer than 444 of them arose after 23 rd January 2002, when the pilots strike ended, three days before the de-authorisation en masse on 26 th January 2002. After 26th January 2002, the sole cause of the acute shortage of pilots which existed was the mass de-authorisation which the CHA carried out that day by its own choice. Plainly, Parliament never did intend (nor even contemplate) that such a thing might happen. That extraordinary event, in a major port on a hazardous estuary (at one of the largest ports in Europe), was beyond the contemplation of any responsible person.

24. In October 2001 the pilots under Notice of de-authorisation had themselves given Notice to the
CHA of their intention to stage a strike in protest. In November 2001 the CHA (in response to the strike-Notice) obtained a restraining injunction against the pilots in the High Court. The validity of the restraining injunction was over-ruled in the Court of Appeal on 11th December 2001, when the Court determined that a strike by the pilots would be wholly lawful in the circumstances. The crisis then facing the CHA was so great that it even went to the extent of suspending compulsory pilotage altogether, not because the Humber estuary and its approaches had become any less hazardous (manifestly they had not) but because the CHA knew full well that it had placed itself in a position where it simply could not provide an adequate number of pilots. The CHA was clearly aware that it had acted improperly. It is inconceivable that the CHA ever contemplated, when it issued the mass de-authorisation Notice in June 2001, that compulsory pilotage in the Humber should perhaps be suspended. Nor should it have done so. It clearly ought never to have issued the Notice which it chose to issue, with or without the clear untruth contained within the Notice.

25. The DTLR, however, openly approved the crisis and disorder which the CHA had created by its
own Notice as issued. As the executive arm of Parliament, the DTLR expressed no syllable of disapproval and was very clearly complicit in the disorder. Where the DTLR Report asserts (at Paragraph 5.25 of its Report) that the arrangements newly put in place were fit for purpose, it is no more legally correct or proper than would be an assertion that any other legally non-compliant arrangement might be fit for purpose. Fitness for purpose and compliance with legally-required minimum standards are plainly two different things. The former is a matter of mere opinion whereas the latter is a matter of fact and strict law.

26. The author of the Report is fastidious in his avoidance of any suggestion that there might have
been compliance with any relevant law. Plainly there was none, as the author makes clear that

he knew perfectly well. It is clear beyond a doubt that the DTLR intended to turn a blind eye to the impropriety of the CHA; and in fact did so. The Report properly makes the point that there are more methods than one to train a pilot; but, playing fast and loose with the common law, dismisses altogether the need to comply with the legal obligation to maintain established minimum standards of post-qualification experience, particularly so where pilotage is compulsory. In that regard, there was no compliance whatsoever.

27. As to the 133 authorised pilots who were de-authorised en-masse on 26th January 2002, 88 of
them (two thirds of their number) sued the CHA in a group action in the High Court in the matter of misfeasance in public office. Their action was settled on terms out of Court, in April 2008, shortly before it was listed to be heard at trial in the Admiralty Court. INTERNATIONAL LAW 28. As if in confirmation of the improper nature of the behaviour of the Humber CHA and the inadequacy of the DTLR to keep it in check, in 2003 the International Maritime Organization (the maritime arm of the United Nations Organization, to which the United Kingdom is a signatory state) issued its Resolution A960 in which it is declared (at Paragraph 2.3.2) that developed standards in pilotage should not only be maintained but should be enforced. (Appendix 8.) In compulsory pilotage areas this international obligation is clearly much the greater, for all of the reasons identified by Mr Justice Steel in the SEA EMPRESS case. THE CLYDE 29. In December 2007, the large vessel Red Jasmine was navigating in the Clyde under pilotage in a compulsory pilotage area inward-bound in dense fog, assisted by two tug-boats. The head-tug Flying Phantom, attached by a tow-wire to the ships bow, suffered a capsize with the loss of three lives. Subsequently the pilot of Red Jasmine suffered mental stress and has since retired.

30. Between 2008 and 2010, having got away scot-free with its inadequacy in 2002, the Department
for Transport (DfT) (as the DTLR had become) then turned a blind eye to events as they were developing on the Clyde, where (notwithstanding the Red Jasmine/Flying Phantom incident) the CHA had chosen to revoke the authorisations of so many of its senior authorised pilots that it could no longer provide any pilot (not a single pilot) whose post-qualification experience complied with the regulated standards applicable on the Clyde. (Clyde standards as at July 2009 are shown at pages 42, 43 and 57 of Appendix 2.)

31. On 9th May 2008 in the Scottish Parliament, Mr Salmond the First Minister referred to the
obvious risk of extreme damage which arises when any standards in pilotage are not maintained.

32. By a letter of 3rd April 2009 (Appendix 9) the shortage of properly qualified Clyde pilots was
already so acute that the Clyde Harbour Master on behalf of the CHA ordered the pilot of Red Jasmine to report for duty, notwithstanding the fact that the medical advisor to the CHA had longpreviously certified that the pilot was psychiatrically unfit. Between 13 th September 2011 and 28th October 2011, the CHA on the Clyde was invited to indicate how many of its serving pilots held experience in accordance with the Clyde Regulations; and it simply declined the invitation. Appendix 9 comprises a clip of the above correspondence with the Clyde CHA in which the refusal (and therefore the failure) to show any compliance with any standards is clearly shown. THE ROLE OF THE SHIPPING MINISTERS 33. The DfT has been challenged repeatedly to explain its lack of interest in the maintenance of pilotage standards in the two major ports of Humber and Clyde, particularly in light of the untruth and secrecy which has taken place at those two ports respectively. It is alarming that the DfT has stated that it does not accept the common law position. Still less does it accept the international law position. Appendix 10 is a copy of a letter of 29th June 2009 signed by Paul Clark MP, the Shipping Minister at the time, setting out the Departmental position. It is no exaggeration to suggest that the Department for Transport has cocked snooks at the laws of pilotage within its own jurisdiction, as clearly have the two CHAs in question. It appears quite clear that the Department has held in contempt the very law which it is its function to administer.

34. On 29th September 2010 I met the then-new Shipping Minister, Mike Penning MP. I was
presented to him at a meeting that day on another matter at Hope Cove, South Devon. Mr Penning indicated that he shared my concerns for the matters raised here. Accordingly he has encouraged me to ventilate them, as have many others including Andrew Miller MP, Sir Malcolm Thornton (MP 1979-1997) and Lord Hunt of Wirral in more open and express terms.

35. At a public meeting in Liverpool in January 2011, Mr Ian Timpson of the DfT was present. Mr
Perry Glading of Forth Ports Plc was in the Chair. Also present were Sir Alan Massey, Chief Executive of the Maritime and Coastguard Agency and Captain Stephen Clinch, Her Majestys Chief Inspector of Marine Accidents. In response to a question from me, Mr Timpson had the good grace to admit that in due course the DfT might become obliged to take action to restore order in pilotage.

36. There exists no authority, as far as I know, above or higher than the common law as determined
in the Courts when called upon to interpret the true meaning of the 1987 Pilotage Act as intended by Parliament.

37. The implementary power given by Section 32 (1) of the Act has not been exercised by any
Secretary of State since its enactment on 1st October 1988. CONCLUSION 38. The experience of the last ten years has shown that where post-qualification standards are maintained merely by ad-hoc means, they are not in fact maintained at all. In those ports where standards have been properly maintained as required at law, the standards have been maintained as minimum standards. It could not be, therefore, in the public interest nor in compliance with the law in any way, to allow those standards to be diminished by choice; which clearly is what has happened on a large scale in the cases of the two CHAs mentioned.

39. In both cases CHA has chosen to disregard established standards for reasons better known to
itself, contrary to the common law. Parliament has never intended that the public pilotage service should be administered either by untruth or by secrecy on the part of any CHA, nor by efforts to impose terms of employment on pilots where pilots did not require them, nor by inadequacy on the part of the DfT, all of which unedifying things have happened in the United Kingdom on a gross and obvious scale.

40. In light of the acknowledgment by the DfT that the laws of pilotage in any compulsory pilotage
area are strict and onerous; and in light of the consistent failure of successive Secretaries of State to uphold those laws, it is submitted most respectfully in the public interest that it is now the function of the Select Committee to take steps to ensure that the failures and the large-scale disorder which is inevitably caused thereby - continue no longer.

41. A simple, inexpensive and effective first-remedial step would be the re-introduction of the terms
of Section 22 of the 1913 Pilotage Act, whereby a CHA would be obliged to furnish to the Secretary of State returns on all pilotage matters at regular intervals. A copy of the Section is shown at Appendix 11. Public propriety calls for nothing less. It would be a very mild obligation.

42. Even better would be the re-introduction of the Bye-Laws which regulated the relevant standards
with complete and simple success under Section 18 of the 1913 Act. It is unclear why this provision was ever discontinued. The international obligations of the United Kingdom in safe pilotage remain undiminished in any way. In light of the ever-increasing use of foreign-flag tonnage (which seems unlikely to be reversed in the foreseeable future) those obligations are clearly greater than ever before.

43. It is perfectly clear that any Competent Harbour Authority remains accountable to Parliament,
because it is from Parliament alone that any CHA is granted power. It is equally clear that statutory power has been abused to date by two CHAs acting in their own interests and with

complete impunity. That is a state of affairs which I trust that the Select Committee will find intolerable. Barrie Youde 14th August 2012