Safety update

January 2011 Exercise of Master’s Pilotage Exemptions under Maritime Rules Part 90 - Pilotage

This safety update is issued to clarify the current and future provisions of Part 90 as they relate to the exercise of master’s pilotage exemptions.

Background

The objective of pilotage is to ensure the safe movement of ships in and out of harbours, or in any waters where navigation may be considered hazardous, or where a ship’s master may be unfamiliar with the area. As such, pilotage is one of the key risk management tools in most commercial ports and harbours in New Zealand. In addition to local knowledge and expertise, pilots provide effective communication with the port to assist in safe manoeuvring and berthing.

When a ship subject to compulsory pilotage is moving within a pilotage area, the master must either take a pilot on board, or the ship must be navigated by someone who holds an exemption from taking a pilot on board that ship. To obtain and exercise an exemption from pilotage, a person must demonstrate the required level of local knowledge and ship handling proficiency and ensure that such knowledge and proficiency remains current for that pilotage area.

The current Part 90 (which remains in force until 31 March 2011) uses the term “master’s pilotage exemption” for exemptions from pilotage. Only the master of a ship can exercise a master’s pilotage exemption under the current rules.

However, under the new Part 90, which comes into force on 1 April 2011, the term “pilotage exemption certificate” (PEC) will be used, and a first mate will be able to exercise a PEC, as will the master.

The differences between the current and new rules are explained in more detail below.

Situation under current Maritime Rules Part 90

The law

Under the current Part 90, clause 90.11 provides for a “master’s pilotage exemption”. This document entitles the holder to navigate specified ships in pilotage waters, provided he or she is the master at the time the privileges are exercised. Rule 90.11(3) states as follows (emphasis added):

“A master’s pilotage exemption may only be exercised while the holder of the exemption is the master of that ship.”

The Maritime Transport Act (MTA) defines a “master” as follows:

“Master means any person (except a pilot) having command or charge of any ship”

Court interpretation of the law

The meaning of the above provisions was central in the prosecution Maritime New Zealand (MNZ) v Birchall (DC WN CRN 0500-6501548 28 May 2007), which resulted in the conviction of Mr Birchall for failing to report an incident on the vessel Santa Regina on 9 June 2005.

The obligation to report arises under section 31 of the MTA and rests with the master of a vessel. While Mr Birchall successfully appealed against the conviction in the High Court, arguing that he was not the master at the time of the incident, MNZ subsequently appealed that decision, seeking clarification of the meaning of “master” for purposes of Part 90 for the wider industry.

On 6 April 2009, the Court of Appeal issued its judgment in MNZ v Birchall [2009] NZCA 119, finding in favour of MNZ as follows (emphasis added):

“In summary on this point, “Master” is defined to mean the person having command or being in charge of a ship. It is not an “includes” definition. It focuses on the functions being fulfilled. Do they amount to “command” of the ship? Do they amount to the person being “in charge of” the ship? If, as a matter of fact they do, then the person fulfilling those functions is the “Master” of the ship at that time and incurs the Master’s statutory obligations, including that of reporting under s 31.”

The facts in the Birchall case (as found by the Court of Appeal) were:

  • The vessel’s ship management manual listed a procedure for “change of command” from the person who had the rank of “master” to the person who had the rank of “first mate/relief master”.
  • The procedure clearly shows that the first mate “remains in command of the vessel until the master resumes command”.

On the day in question, this procedure had been followed and Mr Birchall took command of the vessel. In addition, Mr Birchall, who held a master’s pilotage exemption certificate, had exercised the privileges of that certificate in the Tory Channel pilotage area.

The court therefore concluded that as a matter of law, Mr Birchall was “in command” or “in charge of” the vessel at the time of the incident and met the legal definition of “master” under the MTA.

Consequence of court decision for the maritime sector

The consequence of the court decision was that the test for who was the master of a ship at any given time would be determined by the facts of the situation at the time.

Ultimately a first mate would be the “master” of a ship if the facts showed that he/she was actually “in command” OR “in charge” of the vessel. Evidence to support such a finding could be bolstered by matters such as:

  • Provisions in the ship management manual recording that a change of command in roughly similar terms to those that applied on the Santa Regina in 2005 were in place; and/or
  • If that person held a master’s pilotage exemption and was purportedly exercising it in pilotage waters – to meet the requirement under Rule 90.11(3).

If the operation did not meet this test, then full compliance with rule 90.11(3) would be required, unless the operator had a general exemption from that rule granted by the Director of MNZ under section 47 of the MTA.

Situation under new Maritime Rules Part 90

The situation under the new Part 90 (which comes into effect on 1 April 2011) will allow the first mate to exercise the privileges of a PEC in his or her own right. However, a condition of this is that the master of the ship must also hold a PEC.

To ensure that knowledge and proficiency standards are maintained, a person applying for a PEC must hold a certificate of competency that would enable them to be the master of that ship. Hence a first mate with a PEC must also hold an appropriate master’s certificate.

A definition of first mate is provided in the new Part 90 to avoid ambiguity. It states that this person is the deck officer next in rank to the master. The new rules therefore do not permit others, e.g. a second mate, even if they are a PEC holder, to exercise a PEC.

Hence, within pilotage waters, the PEC can only be exercised by the master or the person with the rank of first mate.

The new rule will not have an impact on the definition of the word “master” under the MTA. This means operators will still need to prepare their ship management manuals clearly to ensure clarity about who is “in command or in charge of” the vessel for purposes such as reporting under section 31 of the MTA and to ensure compliance with crewing and watchkeeping requirements under Part 31A.

Good bridge record keeping will be essential to ensure that the respective roles and responsibilities relating to pilotage, command and watchkeeping are clearly defined and understood. Only one person on a ship can exercise a PEC at any one time, and the bridge log should clearly identify who that person is, so there is no doubt. While that person can also be the master, as a matter of good practice it is not recommended that the person exercising a PEC also fulfils the role of officer of the watch.

For the purposes of maintaining and demonstrating currency, only one person can credit a given vessel movement against their currency requirements. If the conduct of the ship is formally handed over from one PEC holder to another during the vessel’s operation within a pilotage area, this should also be recorded. Where a person is conducting the ship under supervision, is being trained, or is undergoing peer review, this should also be clearly noted.

Key points

Current Maritime Rules Part 90 (until 31 March 2011)

A “master’s pilotage exemption” entitles the holder to navigate specified ships in pilotage waters, but he or she must be the master at the time.

A “master” is defined by law as the person “in command” OR “in charge” of the ship, based on the facts of the situation at the time. This does not change under the new rules.

The first mate can be the “master” of a ship if the facts show that he or she is actually “in command” OR “in charge”. This includes responsibility for discharging all of the normal master’s obligations, such as reporting an accident. This responsibility does not change under the new rules.

New Maritime Rules Part 90 (in force from 1 April 2011)

A “pilotage exemption certificate” (PEC) entitles the holder to navigate specified ships in pilotage waters under certain prescribed conditions.

A “first mate” is defined as someone who is the deck officer next in rank to the master.

Both masters and first mates will be able to exercise a PEC under the new rule. However, only one person can exercise a PEC at any one time.

The rule does not permit others (e.g. a second mate) to exercise a PEC.

Original source content - Guidance Notice Issue 18, January 2011: Exercise of Master’s Pilotage Exemptions under Maritime Rules Part 90 – Pilotage.

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