Port Phillip sea pilot’s conviction sets worrying precedent

December 2007

Anyone who has been a watchkeeper at sea knows only too well the problems that arise when a ship is confronted with a fleet of fishing boats or recreational craft. Perhaps you encountered the fishing fleet off Cape Finisterre or in the South China Sea, or you gingerly negotiated your way through the hundreds of small canoes that string from horizon to horizon on the traditional convergence point off Dakar on the longitude 17° 45’ west.

Every navigator has a tale to tell and every single one will carry a lingering thought in the back of their mind that maybe, just maybe, they may have hit one that they failed to detect.

Of course, the closer you come to shore, the greater your chances of encountering heavy non-commercial traffic – and the numbers are growing each year. Also, while this may induce duodenal ulcers in the deepsea mariner, local pilots through day-to-day familiarity with such events tend to take such challenges in their stride.

Paying the price

One should always remember that familiarity can breed contempt. And some might say this was at the root of a recent case in Melbourne, which saw a Port Phillip sea pilot fined $5,000 and have his licences suspended for three months.

The decision by the state authority, Marine Safety Victoria, to press for criminal charges to be brought against the pilot is being viewed with concern in the pilotage profession in the region as it has the potential to set a very worrying precedent. They argue that the decision to introduce criminal sanctions into the equation may well have introduced an element of fear into the system, and as a consequence there may be a reluctance on the pilots’ part to report incidents, or fully and frankly disclose pertinent information.

The pilot has been with Port Phillip Sea Pilots for 27 years and is the second longest serving pilot in Melbourne. On October 30, 2005, while he was piloting a containership, the OOCL Sydney, into the port of Melbourne, the vessel was involved in two incidents with recreational craft.

In the first, the ship collided with a 5.5 m runabout, which had been anchored very close to a transit-only zone within the shipping channel established some months earlier to restrict recreational boats. The two occupants of the boat were forced to jump overboard just before the collision.

It was estimated that at the time of the incident there were 200 such craft in the area. Half an hour later, as the ship started to proceed into port, the ship was involved in a close quarters incident with another recreational vessel. The boat’s occupants saw the OOCL Sydney drifting about 1 km away, and then saw its bow point towards them. One of them decided that the ship was getting too close and started to pull the vessel’s anchor in. When he felt that the ship was moving towards his boat too quickly for him to retrieve all the anchor rope, he obtained a knife from his brother, cut the anchor rope and motored out of the path of the ship.

The Melbourne Magistrates Court was told that the containership did not slow down and continued on. Both incidents were subsequently investigated by an inspector appointed by the director of Marine Safety Victoria. As a result of the investigation, some eight months later, the Director of Marine Safety determined to cancel all pilot licences held by the pilot pursuant to Section 85 of the Marine Act 1988.

Catalogue of failures

More controversially, the director recommended that criminal action be taken against the pilot on the grounds that he had:

l Operated the OOCL Sydney at a speed and in a manner which was dangerous to the public;

l Failed to slow down and use appropriate and/or any sound signals;

l Failed to take into account traffic density and the OOCL Sydney’s manoeuvrability when steaming towards and then through a large number of anchored vessels;

l Failed to use all available means appropriate to the prevailing circumstances and conditions to determine if a risk of collision exists;

l And, being a pilot in charge of a vessel, did anything, whether wilfully or negligently, that was likely to endanger a vessel or its crew.

Accident investigation focuses on identification of error – all errors, both personal and latent – with a view to reducing the risk of repeats. In contrast, prosecution of persons at fault for breaches of the law could be interpreted as a very blunt instrument for the effective management of error. There are competing public interests at stake – full and frank disclosure assists effective accident investigation, but at the same time renders an individual involved more liable to be convicted.

This case has left pilots with the belief that in future it will be necessary for them to seek their own legal advice when involved in an incident. They now realise that their interests may not be the same –and indeed may be adverse – to those of their employer or the licensing authority.