Read and reply to the below discussion. Do you agree with the discussion or not? Why?
I. Who is liable when a pilot causes damage to a ship?
A pilot is a vessel operator and navigator, hired for his local knowledge and expertise in a specific geographic region. A "Pilot" is defined by Parks and Cattell with reference to Encyclopedia Brittanica as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel or from or into a port.[i] The topic of liability in pilotage is touchy, and traditionally limited in nature. A pilot is not held liable merely because a disaster occurs, providing he or she uses sound judgment¦[t]o hold the pilot liable, it must be shown that he or she was negligent, since negligence is the sine qua non of liability.[ii]
The pilot, however, may either be compulsory, as required by local statutes, or voluntarily hired by the owner. In the case of compulsory pilotage, noted in regional navigational publications, the pilot is not an agent or servant of the vessel owner; hence the owner of a vessel cannot be held liable in personam for damages caused by a compulsory pilot¦A voluntary pilot is considered to be an employee of the vessel owner and, under the rule of respondeat superior, the pilot’s conduct“ including negligent acts“ is attributed to the owner.[iii] While the defined voluntary pilots are considered under hire by the shipowner, many pilot contracts between the pilot, (or pilot association/employer), and the ship include exculpatory clauses to limit or exclude liability on the part of the pilot or pilot association under the pretenses that the pilot (voluntary or compulsory) is in effect a member of the crew and subsequently employed by the shipowner. In most cases, unless negligence of the pilot was the proximate cause of an incident and the pilot is acting as a "servant" but employed by a third party respondent, the pilot is exempt from liability, and the bulk of liability rests on the ship’s Master and owner.
II. Summarize the important facts, issue, holding, and reasons for the decision in the case of United States v. Nielson 349 U.S. 129 (1955) at p. 375 of the casebook. Do you agree or disagree with the decision and why?
The case of United States v. Nielson 349 U.S. 129 (1955), concerns the pilotage clause in the agreement between Danutless Towing Line and the United States. Dauntless Towing Line provided two tugs and one pilot (employed by Dauntless). The ship Christopher Gale was to be shifted from Hoboken to Brooklyn Pier 1 under its own power with the docking assistance of the contracted tugs. The contract stipulated an exculpatory clause which provided that a¦pilot going on board would become the "servant of the owners of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot nor the tugs, their owners, agents, or charterers shall be liable for any damage resulting therefrom."[iv] When the shift occurred, the wind and current conditions were such that the pilot could not safely maneuver the vessel into its pier, even under tug assistance, and the ship ended up crushing one of the tugs on the pier. Dauntless thus sought damages from the United States against their own pilot’s negligence while operating as a "servant" to the United States. While the pilotage clause in the contract looks like an exemption of liability for both the pilot, and Dauntless Towing, the District Court required damages to be paid, the Court of Appeals affirmed, but the Supreme Court granted certiorari to consider the meaning and validity of the pilotage clause.[v]
The Supreme Court reviewed Sun Oil v. Dalzell Towing Co., 287 U.S. 291 (1932), and reversed their decision to accept exemption of liability from a third party employer of a pilot. Although the pilotage clause is written to read "exemption," it would be unfair to the shipowner/operator to utilize a contractor who provides a pilot, and subsequently seeks damages due to their own employee’s negligence, even if under the ship’s hire. I agree with the Court’s decision, that even though the pilot is a "servant" to the ship, a disturbing situation could occur where a pilot is provided, but does not adequately perform and creates damage to his own company’s equipment, thus acting as a means to acquire retribution from the ship.
[i] See Alex L. Parks and Edward V. Cattell, Jr., The Law of Tug, Tow, and Pilotage, 3d Ed., Cornell Maritime Press 1994, p. 983
[ii] Id. p. 1010-1011.
[iii] See Robert Force & Niels F. Johnsen, Admiralty and Maritime Law, Tulane Law School, Federal Judicial Center 2004, p. 149.
[iv] See Robertson, et. al., Admiralty and Maritime Law in the United States: Cases and Materials, Carolina Academic Press 2008, p. 375
[v] Id. p. 375
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