Le pilotage maritime dans l'Union Européenne: statuts, organisations et responsabilités civiles des pilotes en 2010( Télécharger le fichier original )
par Pierre CASTETZ
Université du Havre faculté des affaires internationales - Master 2 droit de la mer et des activités portuaires 2009
Pilotage is one of the oldest, and least-known maritime profession, but it is one of the most important link in maritime safety. Nowadays, the actual economic and environmental risks, involving large ships, make the role of the pilot really essential.
A pilot is an mariner adviser who guides a ship through dangerous waters, fairways, harbours and river approaches. His role is to assist the master by bringing local expertise, and pieces of advice during the ship's passage at arrival, anchorage, or departure. The pilots provide a local knowledge to make the safe passage of the ship safe, and to protect the environment. They have an overall review of local regulations, port activities, customs of the harbour and effect of the current or sounding. Also, they provide communications with port authorities, Vessel Trafic System, tugs, and other piloted ships.
Nowadays, in order to protect the environment and to improve the safety of life at sea, pilotage services are mostly regulated in all the European countries.
Firstly, pilotage is widely compulsory, each state being entitled to define the limit of ships which need to be piloted. Most maritime countries have areas designated as compulsory pilotage districts where ships are not allowed to navigate unless licensed pilot. The reason of such a decision is based on the needs of national public interest, keeping the safety level and environment protection at his maximum.
Secondly, safe and efficient marine pilotage requires that marine pilots operate in an independant environment which allows them to exercise their professional judgement in an independant manner, without competition or arrangements with shipowners.
Lastly, most jurisdictions in the European Union, have concluded that the public interest, the marine safety and the necessity to protect the environment and nearby populations, are best served through pilotage services being provided on an exclusive basis, by a single group of pilots, which take advantage of a monopolize position, in any given compulsory area.
In order to exercise their functions, pilots may be self-employed, or employed by a port, with different degrees of privatization, or may be employed by a state, as public servants. But all the time, pilots are organized as independant economic entities, grouping together in association, or partnership, and are always subject to the government control.
However, the pilot is legally, only an advisor, as the master remains in legal, overriding command of the vessel, keeping the ultimate responsibility of the ship.
But the pilot executes the pilotage on his own civil liability, as defined in the national pilotage legislation, called Pilotage Act, but, according to the same principle, as the possibility for the shipowners to limit their own liability, in accordance with LLMC 76 Convention, the Pilotage Acts usually give the right to limit their civil liability. In such a case, the civil pilot liability is largely limited to a certain amount of money, because of the mere reason that a pilot has personal limited resource, he may not be able to support the financial consequence of an accident, and couldn't recover the large amounts of money incurred today.
Nevertheless, pilot limitation or exemption of liability are waived when the court evaluate that there is a intent or gross negligent from the pilot, but the burden of the proof rests on the person who attributes legal consequences to these acts.
Consequently, the claims are mainly engaged against organizations employing the pilots, or against the shipowner himself. Speaking about the pilot civil liability, regarding the institution organizing the pilotage service, some few problems may happened.
It is in the public interest for pilots to be able to not commence, or to stop an unsafe operation without apprehension of adverse consequences to their careers or livelihood, but their decision may affect their relation with the organization employing them, leading sometimes to severe reprimand.
Also, some few court cases shown the last years that the harbour authority is not liable for the negligence of a pilot because a pilot is a independent professional who navigates as a principal and not as the servant or agent of his general employer
On the contrary, in some countries, some few cases of pursuit were engaged against the state regulating the pilot services employing the pilots, the claimers performing the pursuit as the pilot is an only a servant of his general employer.
Last but not least, According to the Pilotage Acts, the liability limits are some times so high, (as in Spain, or Italy) that pilots are obliged to be insured against civil claims.