В статье поставлена чрезвычайно важная проблема – ответственность судовладельца за вину лоцмана. Проблема усугубляется тем, что лоцманы во многих странах являются государственными служащими, так что можно ставить вопрос об ответственности судовладельца за вину государства, служащим которого является лоцман. Эти тонкие проблемы, имеющие место, практически, в любой юрисдикции, детально исследуются авторами настоящей публикации на примере Норвегии. В частности, авторы приводят условия ответственности государства за вину лоцмана, находящегося на государственной службе.
Introduction
In Norway, as in many other countries, a pilot is considered the servant of a shipowner, and the shipowner is held responsible for any loss or damage arising as a result of the pilot’s negligence. Notwithstanding this general principle, some grey areas exist where the rationale for holding the shipowner responsible can be called into question.
Pilotage services in Norway are operated by the Coastal Administration. In addition to supplying pilotage to vessels in Norwegian waters, the Coastal Administration is also responsible for recruiting, educating and certifying all state-employed pilots.
Although the rule on liability relating to pilots is relatively clear, the waters may be muddied where the loss or damage results from:
- an error that the pilot committed before boarding the vessel; or
- a failure by the state to organise and operate the pilotage services in a safe manner.
In such cases questions arise as to whether the shipowner can hold the state liable.
Legal basis for state liability
The legal basis for state liability is Section 2(1) of the Tort Act. According to this provision, the state is liable for public servants’ negligent or wilful acts or omissions occurring in the performance of their duties. This includes pilots employed by the Coastal Administration. However, the state will not be considered responsible for errors that the pilots commit while piloting the vessel, because during this period pilots are considered to be the shipowners’ servants (Section 24 of the Pilotage Act).
There has been only one significant case in Norway where liability was imposed on the state for loss or damage caused by the pilot services – the Supreme Court decision in Stella Altair. In this case, British trawler Stella Altair grounded north of Harstad, Norway on February 2 1964. The incident occurred because the pilot dispatcher had neglected to inform the vessel that the pilot that it had sent onboard was in fact only a local mariner, lacking the necessary qualifications to conduct pilotage. The shipowner and insurers filed a claim for damages against the state. The majority of the Supreme Court found that unless otherwise informed, the shipowner had a right to expect that the pilot was fully qualified. Consequently, the Supreme Court held the state liable (however, the damages were reduced by half due to contributory negligence on the shipowner’s part).
The most recent court decision concerning state liability for pilotage is the Borgarting Court of Appeal’s decision in Rocknes. In this case, the rock-dumping vessel Rocknes hit a shallow and capsized in Vatlestraumen near Bergen, Norway on January 19 2004; 18 seamen lost their lives. The shallow had been discovered by the Norwegian Hydrographic Service several years before, but had not been notified to vessels (or pilots) through the ordinary channels (by issuing a notice to mariners). The question was whether the state could be held liable for negligent acts or omissions on part of the Hydrographic Service, the Coastal Administration (as the pilot’s employer) and/or the pilot himself.
The shipowner argued that:
- the Hydrographic Service was negligent by not issuing a notice to mariners about the newly discovered shallow;
- the Coastal Administration was negligent in failing to ensure that the pilot had sufficient knowledge of the relevant fairway to pilot the vessel safely (including by using the latest chart on which the shallow was drawn); and
- the pilot was negligent by failing to update his knowledge of the fairway based on the latest chart before boarding the vessel.
Although the court of first instance held the state liable, the appeal court dismissed the claim and found in favour of the state. The appeal court held that neither the Hydrographic Services, the Coastal Administration nor the pilot had been negligent. In particular, it was not considered negligent to omit the notice to mariners and merely update the chart eight years later, without specifically highlighting the new shallow, although on the chart (1:50,000) the new shallow was difficult to notice. It was not considered relevant that the failure to issue the notice to mariners resulted in the shallow not being marked in the latest chart used by the vessel, which based its changes on notice to mariners. Further, it was not considered relevant that the lack of a notice to mariners had caused the pilot to be unaware of the shallow before boarding the vessel, since the Hydrographic Service had failed to inform the Coastal Administration of its findings.
The appeal court held that the Coastal Administration could not be expected to instruct pilots on how to update their knowledge or to provide them with the latest charts, as this was a matter for each individual pilot. The appeal court also held that the pilot was fully qualified and therefore any errors that he made during pilotage were the vessel’s responsibility. It did not matter that the underlying root cause had occurred before he boarded the vessel.
The Rocknes case suggests that shipowners are responsible for all errors in pilotage, even those that can be attributed to the pilot having insufficient knowledge to navigate the vessel safely in a manner to be expected. Such a state of affairs places an unreasonable burden on the shipowner, since it assumes liability for risks outside its control. The shipowner pays a fee for pilotage and cannot choose which pilot to use. It is not unreasonable for the shipowner to expect that the pilot is not only formally qualified, but that he or she also has the necessary and updated knowledge about the relevant navigable waters.
However, as this case was decided by the appeal court and as there is no judgment yet from the Supreme Court, the issue is still up for debate.
Авторы: Gaute Gjelsten, Ingrid Larsen (Wikborg Rein)