Pilotage has existed since ancient times and is as necessary and important now to commercial shipping as it was when Roman law set forth the obligation on the part of the vessel to take a pilot. A pilot is employed because he is presumed to have knowledge of tides, currents, and their effect upon the ship and all other dangers affecting the safety of the vessel due to local conditions. In the United States, compulsory pilotage laws pre-date the Revolution. Early on, Congress recognized that it would be wiser to leave regulation of local pilotage grounds to the individual states.
What happens, however, if a foreign ship carrying a compulsory pilot allides with your dock and causes damage? Who is responsible—the ship, its master, or the pilot? What should you, as dock owner, do?
The reason that a vessel employs a pilot, whether compulsory or voluntary, is in large measure because such an individual is expected to have expert local knowledge of the navigable waterways. He is charged with knowledge and awareness of local conditions, including both published obstacles and dangers not evident on charts or from outward appearances. The courts have found that pilots may be charged with knowledge of a local condition as a matter of law. As a result, the courts have consistently come to the conclusion that a pilot may be held individually liable for damage caused by his negligent navigation to the vessel which he is piloting or to third parties which is the result of his failure to exercise due care.
Although a pilot might be regarded as an independent contractor as respects the ship he is aboard and its owners, he is at all times subject to the ultimate control of the ship’s master. Even though the pilot is deemed to be an expert in navigation of vessels that he guides over his pilotage grounds, the master of the vessel is still in command of the vessel and must, under appropriate circumstances, intervene, interfere, warn or even take over and relieve the pilot. This duty arises if the master of the vessel observes or discovers incompetency of the pilot or it becomes manifest that the pilot is steering the vessel into danger. Thus, the courts have required the master to carefully observe and monitor the actions of the pilot.
When damage occurs, the prudent dock owner must move quickly, especially when the offending vessel flies a foreign flag. While you may be able to procure jurisdiction over the pilot and, if he is found liable, have judgment rendered against him, this remedy may be mere delusion as he will likely not be able to respond to such a judgment. You may be left with no remedy if the vessel leaves port.
Consequently, the dock owner should look to relief provided by Supplemental Admiralty Rules B and C found in the Federal Rules of Civil Procedure. These rules provide for attachment and seizure, respectively, of the vessel.
Rule C addresses seizure, which allows anyone with a maritime lien against a vessel to arrest the vessel and proceed against it in a so-called in rem action. The in rem action is based on the fiction of the personality of the vessel. When the vessel allided with your dock, the damage it caused immediately gave rise to a maritime lien. In the in rem action, you proceed against the vessel itself, called the res, to satisfy that lien. Rule B, on the other hand, addresses attachment, a procedure in which the property of the vessel owner is held in order to compel the owner to submit to the personal jurisdiction of the court, and in order to provide a fund from which any judgment against the owner may be satisfied. Any property of the owner which can be found in the district, not just the offending vessel, is subject to attachment under Rule B.
By seizing the vessel, the dock owner has security to cover his damages. The vessel owner may post security to cover the dock owner’s claim and the vessel can be released. Mere threat of seizure often results in security being posted, by way of a bond or letter of undertaking from the vessel’s insurer.
At the same time, the dock owner should move the court to require the key members of the vessel’s crew to give their depositions for perpetuation.
In sum, if the vessel owner does not agree to come forward and post security, the dock owner must arrest and/or attach the vessel and proceed both in rem against the vessel and in personam against the owner. If the owner agrees to post security for the value of the claim, the security can be substituted for the vessel, allowing its release, and providing a fund for the satisfaction of any judgment from the claim. On motion, the court may require the crew to be deposed or other discovery taken within a given period of time, although if they have already departed, arranging for their transportation may be the plaintiff’s responsibility.
Rules B and C of the Federal Rules of Civil Procedure allow a party aggrieved by a foreign vessel to force the tortfeasor into court by seizing the offending vessel (or, in the case of attachment, another vessel of the same owner), although recovery may well be limited to the value of the vessel. By acting quickly to arrest and attach the offending vessel, the dock owner can protect himself from damage caused even by a foreign vessel under compulsory pilotage.