Human Element Session Modernising Marine Pilotage Meeting the demands of the working environment

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

2. Human Element Interpreted in the broadest sense; pilot as the human element within the present working environment

3. 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)

4. 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)

5. Reason Swiss Cheese Model Basis of IMO Accident Investigation Code & also widely used in other high risk industries from Aviation to HealthCare

6. Reason Swiss Cheese Model Defenses

8. Reason Model of Accident Causation Organization Task/Environment Individuals Defenses • Organizational • Factors • Communications • Management Structure • Incompatible Goals • Local Factors • Morale • Fatigue • Equipment • BRM, Procedures, etc. • Active Failures • Mistakes • Slips • Lapses • Violations Accidents Latent Failures

9. History off unsafe acts? Knowingly violating safe operations procedures? Pass substitution test? Were the actions as intended? Unauthorized substance? No No No Yes No No Yes Yes Deficiencies in training & selection or in experience Yes Yes No Were procedures available, workable, intelligible and correct Were consequences as intended? Medical condition Yes Blameless error but corrective training or counseling indicated No Blameless error No Yes Yes System induced error No Possible negligent error Yes System induced error Possible reckless violation Substance abuse with mitigation Substance abuse without mitigation Sabotage, malevolent damage, suicide. etc Culpability Diagram James Reason

10. 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

11. 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)

12. 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

13. Sea Empress Milford Haven 15 February 1996

14. 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)

15. 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

16. 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

17. 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

18. 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)

19. 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

20. 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

21. 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)

22. ‘Cosco Busan’ ( November 2007) Strict Liability

23. ‘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.

24. ‘Cosco Busan’

25. 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/VCosco 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/VCosco 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.

26. 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

27. Pilotage Incident Melbourne ‘OOCL Sydney’ collision with recreational vessel on 30 October 2005

28. Pilotage Incident Melbourne ‘OOCL Sydney’ collision with recreational vessel on 30 October 2005

29. Melbourne Pilotage IncidentChronology 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

30. Melbourne Pilotage IncidentChronology 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

31. Prosecution of PilotMelbourne 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

32. Prosecution of PilotMelbourne 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

33. Prosecution of Pilot Acts tending to endanger vessel or crew (1) Any person who, whether wilfully and negligently- • Does an act tending the immediate loss or destruction of, or serious damage to, a vessel or its cargo; or • Does an act tending immediately to endanger anyone belonging to or on board a vessel; or • Fails to do an act that is reasonably necessary to protect a vessel or cargo from immediate loss, destruction or serious damage; or • 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

34. 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)

35. 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

36. 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

37. 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

38. 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

39. Pilotage – Systems Approach Hardware Software (People) Materials, Design, Machinery, Equipment, (Portable Piloting Unit) etc. Human Factors Safety Management System (Organization, Proactive, Reporting) Selection and Training Resource Management Individual Technical Skills and Experience Safety Culture ‘Holy Grail’

40. 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

41. 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

42. 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’

43. 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’

44. 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

45. 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

46. 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

47. 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?

48. 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.

49. 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

50. 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)