HC Deb 05 February 1913 vol 47 cc2337-52
Sir EDWIN CORNWALL

I beg to move, that the following Clause be read a second time:—

  1. (1) Notwithstanding 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 of the navigation of the vessel in the same manner as he would if pilotageo were not compulsory.
    2. 2338
  2. (2) This Section shall not take effect until the first day of January, nineteen hundred and eighteen, or such earlier date as His Majesty may fix by Order in Council, certifying that it is necessary to bring the Section into operation in order to enable His Majesty to comply with an international convention.
  3. (3) As from the date of the coming into operation of this Section, Section six hundred and thirty-three of the Merchant Shipping Act, 1894, shall cease to have effect.
Under the Merchant Shipping Act, 1894, when a vessel is navigating under compulsory pilotage, the owners are not liable for any damage caused by it when in charge of a pilot. This Bill gives power to make areas which are not compulsory pilotage areas into compulsory pilotage areas, thus further relieving shipowners from liability. This question of shipowners' liability is in no sense a new question. It has been the subject of investigation and inquiry for many years past, and whatever inquiry has been held, and whatever investigation has been made, they have always come to the same conclusions, that the exemption for liability on the part of the shipowner is not a justifiable or a defensible position. I would like to quote from two Reports of inquiries held upon this subject. The recent Departmental Committee set up by the Board of Trade reported to this effect:— It is difficult to exaggerate the hardships inflicted on innocent persons whose property has received damage from a vessel in charge of a compulsory pilot. Evidence to this effect has been given by ship, barge, and wharf owners, which confirms the evidence given at previous inquiries, and, in fact, the hardship and injustice inflicted by this law on persons whose property is damaged is so universally admitted as to make it quite unnecessary to multiply evidence on this point. The Select Committee which sat in 1888 reported as follows:— Your Committee are strongly of opinion that the time has arrived when the exemption of the owner from liability for damage done by his ship when the ship is placed in charge of a pilot by compulsion of law should cease to exist. I could quote other Reports of inquiries to show how this hardship and injustice injures innocent people on the Thames and at other ports. The conclusions arrived at by the Committees which have inquired into the subject are in every way sound. I would remind the House that the Board of Trade introduced a Pilotage Bill in the Session of 1911, which, in Clause 45, made the very same proposal as I am making tonight. Looking to the great importance of this question, the House will naturally ask why the Clause which was in the 1911 Bill is not in this Bill. I understand that the reason it was not put in this Bill is not because the Board of Trade has altered its mind, not because anyone thought the circumstances were different, or that the exemption from liability of the shipowners should continue, but because the Board of Trade, as the Committee were informed upstairs, were carrying on international negotiations, and because pending the settlement of these negotiations it was not desirable to put the Clause in this Bill. The House will see that, in Subsection (2) of the new Clause I am moving, the difficulty of the Board of Trade has been met. The first Sub-section is identical with the Clause in the Bill of 1911, but the second Sub-section makes the Clause suspensory until January, 1918, so as to enable the Board of Trade to carry on its international negotiations. If their negotiations are completed before January 1918, they will bring their proposals before the House embodying this question, and other provisions arising out of the negotiations and this question will be settled on lines thought out by the Government and the Board of Trade.

In the event of international negotiations breaking down and no further legislation being proposed by the Government, then the Clause in last year's Bill, the Clause now moved, will become operative in January, 1918. This is not so much my Clause, but is rather the outcome of discussion in Committee, in which the President of the Board of Trade was as anxious to find a riâ media as anyone else. We were all trying to find a way out of the difficulty to do what the Board of Trade admitted to be a proper thing to do, and at the same time to safeguard the position which the Board of Trade was trying to safeguard. The joint wisdom of the Committee in its final sitting, brought us to the idea that some such Clause as this. Since the Committee separated I have been negotiating with the President of the Board of Trade and the members of the Committee whose names appear on the Paper in support of this Clause. We have brought this up with a full belief in its utility and in the hope that the President of the Board of Trade will accept it. The Bill is a very useful measure to codify and simplify the pilotage laws of the country, but without some such provision as is now proposed I do not think that it would have been fair and equitable.

Mr. GEORGE TERRELL

The hon. Member has repudiated this Clause as his handiwork. My name is put down as the Seconder. I also wish very respectfully to repudiate it as being in any way my handiwork. We have both taken a very active part in the Committee stage of this Bill. Some Clause of this character has, in the interests of common justice, become absolutely necessary. There is the case of the 1,900 barge owners wbo suffer material damage from the action of the compulsory pilots. Their case must be taken into consideration, and the relief which this Clause will give of throwing responsibility of damage on the shipowner has really become necessary. On the other hand, it may be argued from the shipowner's point of view that the compulsory pilot supersedes the master in command of the ship, and the master, who is the owner's agent, being superseded, the owner should be under no further liability. That, to some extent, has been the law of the land in the past. In the Committee stage of this Bill I suggested a solution of the difficulty, making the compulsory pilot the adviser of the master, and leaving the master in command of the ship, but there were difficulties in the way of adopting that point of view, and we have been thrown back, after a great deal of discussion and negotiation, on this solution of the difficulty. Unless some international agreement is arrived at by the date named in this new Clause, then this new Clause should take effect, and I think it will be necessary as the only ultimate solution of a great difficulty.

Mr. HOLT

I should like to put a few reasons before the House why this Clause should not be read a second time. I must say frankly that I find it very difficult to understand how any persons can be found to support this proposal. What are the reasons for compulsory pilotage? A pilot is not put on board a ship compulsorily in the interests of the ship, the owners of the ship, or the owners of the cargo, who are capable of taking care of themselves, and a voluntary pilot is quite sufficient in the interests of the ship. Compulsory pilotage is not substituted in the interests of the ship, but in the interests of the craft on the river and of the harbour authorities. A compulsory pilot is put on board for their protection. Shipowners do not want compulsory pilots; they want voluntary pilots, and they will pay any damage they cause. When you Substitute for the master a compulsory pilot, you are not at liberty to reject that man; and when you put him in charge of the ship, in the place of the master, owners are entitled to say, in the event of damage, that they should not be asked to pay for the misdeeds of that particular person. The ordinary Common Law never makes a person financially responsible for the misdeeds of a man over whom he has no control. But my hon. Friend says there is a certain amount of hardship on innocent persons. Surely the owner is just as much an innocent person; he is not the employer of the man who has done the wrong. If the Clause is passed no doubt the position of the compulsory pilot will be materially changed; he will not have any effective control over the management of the ship. If you take away the control of the pilot, the man might be put on one side, or ordered into the saloon, though his fees have to be paid. He really comes as a man who has the right to work, or to have his pay, if his services are not used.

Sir GILBERT PARKER

Am I to understand the hon. Gentleman to say that the pilot on a compulsory ship has an authority which neither the master nor anyone else can supersede, and that the pilot on a non-compulsory ship has no such advantages, but the shipowner or the shipmaster has always control of the pilot, whether non-compulsory or compulsory?

Mr. HOLT

If the pilot is a voluntary pilot, the master at any time can say, "We do not want you. Get out of the way." But the compulsory pilot has real authority on the ship, and if his orders are not correctly carried out the ship has to pay the damage. That is the whole basis of the pilot's authority on the ship.

Directly you carry out these orders you strike a blow at the very foundation of compulsory pilotage, and he becomes a person of no real importance, and must inevitably, in the course of time, be struck off the list of compulsorily employed persons, because he ceases to serve any useful purpose. We heard something about this international bargain, and as I understood an agreement has been come to or is in course of being arrived at by which it is proposed that shipowners on the other side shall give up this legal defence of compulsory pilotage in exchange for certain considerations which the authorities of this country are more or less ready to give with regard to limitations of liability. The Board of Trade stayed their hands in this matter in order that we may try to negotiate a settlement, but is it not perfectly obvious that if you put into an Act of Parliament a Clause stating that the legal difference of compulsory pilotage is to come to an end in five years, your weapon for negotiations is perfectly worthless, as the people have only got to sit tight for five years and they get everything. I think that is a very serious reason why this Clause should not be put into the Bill. Even if it were thought right to abolish the legal defence and compulsory pilotage, I submit at the present time it would be extremely unwise to put a definite date at which that defence is to come to an end. I think shipowners have some just ground of complaint of the way in which they have been treated in this matter. The Clause was not put in the Bill on Second Reading, and for that reason they did not oppose the Bill. They were unable to be represented directly on the Committee, and upstairs. They had no proper opportunity of making their views known. Therefore I do submit with very great confidence that the proposal of my hon. Friend is not fair, and that the House ought not to accept it.

Major GUEST

I also desire to express my opposition to the Clause, though not quite for the same reasons as those just advanced but for the reason that this question of compulsory pilotage is raised at the last moment on this Bill by a side wind. It is a complete reversal of the policy which has previously been pursued, and in fact before the owner can claim immunity from liability for damage he has got to prove that the pilot was at fault when the damage took place. That is an additional difficulty that the owner is in. With regard to the actual case, I think between shipowner and shipowner it is not a very vital question, because one day the shipowner may be the cause of the damage, and another day his ship may be damaged. I quite admit with regard to the question of shipowner and dock owner that the dock owner is at a disadvantage, and I admit also that in the Departmental Committees that have been held a case for the consideration of these conditions has been made out, but not, I contend, in the present Bill. In the first place, when the Bill was presented for Second Reading these provisions were entirely omitted. In answer to the hon. Member for Thanet (Mr. Norman Craig) on the 19th December, the President of the Board of Trade stated that international considerations made it inadvisable to include this Clause in the Bill. Moreover, when the Clause was discussed upstairs, the right hon. Gentleman gave us to understand that either he or some future President of the Board of Trade would have to introduce legislation to remedy this condition of affairs, but I certainly never understand that a Clause of this kind, would be introduced into the Bill. I sincerely hope that the right hon. Gentleman will not accept the Clause. It would have the effect of prejudging the case, and would not on any future occasion give the shipowners an opportunity to put their side of the question, which in justice they should be allowed to do, although there is much to be said against it. If my hon. Friend divides against the Clause I shall support him.

Mr. WATSON RUTHERFORD

I object to this Clause for many of the reasons stated by the hon. Member for Hexham (Mr. Holt), but my principal reason is that there are in the Bill five Clauses dealing with compulsory pilotage, everyone of which contemplates that compulsory pilotage as it has existed in the past is to be continued. We are now suddenly brought face to face with a Clause, apparently the production of private Members, which in effect completely abolishes compulsory pilotage at the expiry of five years. To make such a complete alteration of the law of the land in a matter of this kind in such a way upon the Report stage is, to my mind, a very irregular proceeding, and one calculated to do a great deal of harm. The Bill has been carefully examined by a large number of interested parties. The pilots of the United Kingdom have studied it, and by communicating with various Members, have been able to put forward their views. Shipowners, dock authorities, and other interested parties have done the same. But they have not been able to say anything about this Clause, because they knew nothing about it. What is this important proposition? It is that the question of the liability of compulsory pilotage is to be abolished in five years.

It has been fairly and clearly stated by a shipowner opposite who understands the subject and who to-morrow may be interested one way or the other—for it cuts both ways—what the position of the law is in the matter. It is this, that there are two absolutely different kinds of pilotage—the voluntary and the compulsory. In places where pilotage is voluntary the shipowner, or the master of the vessel, takes on the pilot if he wants one, and the master pleases himself to what extent he avails himself of that pilot's recommendations. But there are places, harbours, entrances where in the interests of all the traffic—of the barges and so on—every ship that navigates these particular waters is bound to take a pilot; not of the shipowner's choosing, but chosen by that particular authority. The law always practically has been, and is today, that having taken the pilot on board, that pilot has absolute control of the ship. As a consequence the law very properly says, if any accident happens to the ship the master is not to be liable so long as the pilot is on board and his orders are carried out.

This new Clause, if passed, will absolutely wipe out that state of affairs at the end of five years. What will be the consequence? It will be that if a shipowner is to be liable for whatever accident or damage may occur in consequence of the navigation of the vessel under the circumstances, having been obliged to take a pilot on board, the shipmaster will take jolly good care that if the pilot tells him to do anything likely to cause an accident he will not do it, because he will be liable. The pilot's authority will be set aside. The effect of that will be that all the benefits of compulsory pilotage will be done away with. What I invite the Government to do, if they seriously consider that this is a proper position to arrive at, is to abolish compulsory pilotage altogether. That is the solution in the case of every craft that comes into a tidal harbour where a pilot is wanted—to leave the master at liberty to take a pilot or not, and to leave him responsible for any damage he may do. That is the straightforward, reasonable solution.

If you insist upon a pilot being taken on board and having absolute control of the ship, then the master ought not to be responsible. The suggestion about international negotiation ought to be put off for five years. The very fact of passing this Clause, if we are foolish enough to do it to-night, would be that the very weapon our people might have with a view to international negotiations and making a decent bargain would be gone. You are putting your cards on the table for them to be trumped! It is an exceedingly stupid thing in every direction to pass a Clause like this. A great new principle, which was not contemplated when this Bill was read a second time, is now sought to be introduced at the last moment without the opportunity for the interested parties to express their views, and this is so objectionable in itself that I join with my hon. Friends in opposing the insertion of this Clause.

Mr. LESLIE SCOTT

I think there are one or two aspects of this particular question which I might usefully put before the House and which I am in a position to put before it. I had the honour of representing His Majesty's Government at the diplomatic conference abroad at which the Convention on Collisions at Sea was agreed: that was a Convention which contained the provision for the abolition of the defence of compulsory pilotage. It was discussed for a matter of ten years, and was finally agreed in October, 1910 at Brussels. The proposal for the abolition of the defence of compulsory pilotage was considered at very great length, by a large number of interested bodies in this country and also in foreign countries. It was the subject of discussion in that year and also in previous years on the Continent at International Conferences. The position was that we, and I think one, or it may be two other countries had the defence. All the other countries of the world which enforced compulsory pilotage regarded that fact as no defence to an action brought, against the shipowner whose pilot had been in fault. The view taken by those nations is that the pilot is put there by compulsion of law in order that the master of the ship may have the best possible advice in local waters, and the object of the compulsion is to make certain that the local knowledge is on board the ship. The pilot remains an adviser.

And from that point of view there is an advantage in compulsion even although the master be not obliged to take the advice of the pilot, and the view was entertained by a large number of leading shipowners that it makes on the whole for the interest of safe navigation that the responsibility for what happens should not be entirely taken from the master. Under our present system whereever the pilot makes a mistake and the master does not interfere, the shipowner is free from liability. So the master necessarily to some degree loses that sense of responsibility which after all is ultimately the greatest safeguard for the good navigation of a ship. That view is taken by many leading shipowners in this country to-day who, from some points of view recognise the advantage of the defence of compulsory pilotage. The chairman of the Cunard Company, one of the best shipowners in this country, I know personally takes that view—he told me so himself—and it is a view frequently entertained. Therefore I ask the House to bear in mind that you may have advantage from compulsion by the presence of the pilot as an adviser, and yet there may be an advantage to consider in the balance of considerations in leaving the master responsible and keeping the pilot merely as an adviser. After all it is not to be ignored by any means that many other great Shipowning nations take that view—Germany, United States, Norway, Sweden, Italy, Spain—and have acted on that view in their legislation.

It was upon those considerations and upon one other consideration that we came to the conclusion we did at the International Conference. The other consideration was this. It is quite true that the shipowner, when he is defendant, may sometimes get off on the plea of compulsory pilotage; he is sometimes the plaintiff and fails to recover when his ship is damaged because the other ship is in charge of a compulsory pilot, and from this point of view it may be said the risk is averaged, and that it is as broad as it is long, and the practice of insurance averages the risk still further, nevertheless there is one point of view from which the shipowner stands to gain. In a collision the shipowner may be either plaintiff or defendant. The cargo may be equally damaged with the ship but the cargo owner is always plaintiff. In the total money bill to be paid by shipowners that part paid in respect of cargo is one in which the advantage of the defence is always on the side of the shipowner. At the International Conference we did what we could after the most careful consideration to protect all interests. The agreement we came to was not made to protect the interests of shipowners, but in order to unify maritime law, having the same sea law all over the world, getting other nations to make alterations in their law while this country undertook to make certain alterations to meet them. We did try to get a sound system of law of the sea, and we came to the conclusion that this alteration in British law was one which ought to be made. Our Government having taken that view the shipowners of this country said we recognise the justice of that position, but there is another branch of maritime law which is now in process of negotiation in which we are greatly interested, and that is the question of the limitation of shipowners' liability. As this House knows all those acquainted with maritime law have recognised the necessity for the sake of encouraging commerce of limiting the risk incurred by shipowners who put their fortunes on the sea in charge of servants who pass entirely out of their control while at sea.

That is a broad policy recognised by all nations, but the systems by which that limitation has been affected have varied greatly and at the present time there is very great divergence. Under existing circumstances British shipowners as compared with foreign competitors suffer a very considerable handicap. I need not go into details, but I may just say that the shipowners of this country say we want to come to an arrangement with regard to the limitation of liability, so that we may have the same law and be put on the same footing as our foreign competitors. They want us to give up the defence of compulsory pilotage, and we say we will do it if they will agree to a limitation of liability. With regard to the abolition of the defence of compulsory pilotage we reserved our right to postpone the change in our law. That was the course we adopted at Brussels. That is the present position, and it was for that reason that this Clause was not inserted in the Pilotage Bill when it was first introduced, and for that reason the shipowners did not take any particular steps to be represented on the Committee stage of the Bill by anybody conversant with their particular point of view. To that extent the shipowners have a strong case in saying that this Clause ought not to be added to the Bill at this stage. But in spite of that I want to say that we on behalf of the British Government did definitely inform the foreign nations in 1910 that we were of the opinion that the change of law contemplated by the Convention ought to be made and was a just change, and other Governments are anxious that it should be carried out as soon as possible. It is quite true that if we had not had that Clause we should have had a more potent bargaining weapon than if we only had the delay of five years. If we go, as we are intending to go at Easter, to Brussels to deal with limitation of liability, we shall then be able to say with very great force to the delegates of foreign nations we have made arrangements for carrying out the Treaty in regard to collisions made in 1910, as you asked us, and you must now meet us in the spirit in which we have met you, and help us to come to the arrangement we want over the limitation of liability. I agree it is a trustful attitude. All I can say is I believe we shall be met in that spirit. Though of course it is a matter upon which it is impossible to express an opinion with certainty, on the whole I believe it is better to allow the Clause to go through in the Bill as it is proposed.

Sir J. COMPTON-RICKETT

My name is connected with this Clause, not because I am advocating one side or the other, but because in Committee I was partly responsible for a compromise. There are difficulties on both sides. There is some hardship, I admit, if this Clause becomes an operative one. Five years lie between the operation of the Clause and its passing, and we have heard sufficient from the last speaker to indicate that it is only a crude way of expressing an opinion that persons who are injured by ships should not suffer that injury and have no redress save the redress for damages up to £100 from the pilot. Owners of small craft are frequently men of small means. The owners of docks have a right to compensation in case of blundering navigation causing damage to their docks, and the evil which owners of small vessels in rivers and dock owners suffer is an evident and a practical one. Cases are continually occurring of damages to the extent of thousands of pounds entirely falling upon the owners of small craft and of the docks, and no kind of remedy has been found for it. These people are compelled even under this Bill to suffer for at least five years, should no arrangements be made in the meantime.

It is impossible for the thing to be settled at the present time; negotiations are going on. An international agreement is required. We have much more at stake than other nations, and we cannot settle it on one side or the other, but we can indicate both to the shipowners of this country and other shipowners that this is not simply for the protection of shipowners as a class or to give a remedy to one shipowner as against another. We can indicate that a modification of the law is necessary. A Departmental Committee has recommended quite lately that this change should be made, so that the whole thing has been inquired into on evidence, and all the directions and instructions seem to point in this way. The addition of this Clause has not been concocted by two or three members of the Committee in the interests of one particular class. It has come out of the general consideration of the Committee. Those on one side and those on the other have agreed to this Clause, and it has the sanction of the Board of Trade, so it is a matter of compromise and of agreement, and not of sectional triumph. I believe there is every reason for allowing it to go through, although I quite admit it requires revision and some consideration as to the status of the pilot and his responsibility, and there are other considerations which were mentioned in the speech on the hon. Member opposite who represents Liverpool (Mr. Leslie Scott).

The PRESIDENT of the BOARD of TRADE (Mr. Buxton)

Perhaps the House will allow me to explain my position in regard to this matter as the Minister in charge of the Bill. A Departmental Committee was appointed to consider the pilotage question, and it was agreed by that Committee that the legal defence of compulsory pilotage should be abolished. After consideration of that Report, I introduced a Bill in 1911 and I introduced a Clause under the operation of which the legal defence of compulsory pilotage would be abolished. That Bill disappeared and a difficulty then arose. This International Conference to which the hon. Member for Liverpool has referred and at which he represented the shipowners took place and in view of what had already occurred it was agreed that the International Conference should continue its labours until it arrived at the conclusion to which the hon. Member for Liverpool referred, and as this question of the abolition of compulsory pilotage formed an integral part of these negotiations it was suggested that the matter should be postponed until the Conference had met. That appeared to me to be a not unreasonable proposition on the part of the shipowners, and I agreed to it. The result was that a Clause abolishing the defence of compulsory pilotage did not appear in the first instance in this Bill. I took care to state that if the Committee put this or a similar Clause into the Bill I could not be held responsible for taking it out on Report.

That was the position when we went into Committee. In the course of the discussion in Committee several Members raised this question of the abolition of the defence of compulsory pilotage. I was successful in resisting the proposal in the early stages of the Committee on the ground to which I have referred, which has been clearly stated by the hon. Member for Liverpool, the question of awaiting the decision of the International Conference. But what was put to me was this: "Supposing the International Conference comes to nothing or through some misfortune that part of the programme is not dealt with? Was I not to include the abolition of the defence of compulsory pilotage supposing the liability of the shipowner was dealt with by the International Conference? and I was bound to state my view, in answer to that, that having introduced a Bill for the abolition of the defence of compulsory pilotage in the year before it was my own opinion that the question could not be held up indefinitely and that if the International Conference came to nothing, the question of the abolition of the defence of compulsory pilotage must be dealt with on its merits and apart from the other question altogether. I was not unnaturally pressed in the course of further discussion in Committee to give a more precise statement in the matter of time.

I think every member of the Committee was in favour of the abolition of the defence of compulsory pilotage, but they were willing that the International Conference should have an opportunity of settling the question if possible in that way. But they were also clear that there must be some fixed limit beyond which that question could not be postponed, and in the course of various discussions the hon. Member from one of the Yorkshire divisions suggested that the Board of Trade should undertake to deal with the question within a year after the Conference, and the hon. Member for Falmouth suggested that it might be left to be done by Order in Council. Various other suggestions were made. I think that every Member of the Committee will endorse this view, that if I had raised the matter on its merits I should have been defeated, and the Committee would have insisted on putting into the Bill the Clause my hon. Friend has referred to which abolishes the defence of compulsory pilotage at once. It was suggested in various quarters that some compromise might be made, and considerable negotiations took place, and the parties expressed their willingness among themselves to allow this suspensory Clause for a period of five years to be inserted, but that it should come into operation at an earlier time if an international agreement was reached. That is the position and that is the reason why this Clause is now before the House.

I do not feel that I ought to make this matter a Government question. I think it would be fairer to the House and to the Members of the Committee to leave it an open question to the House. That is the position in which the Bill now stands, and undoubtedly the feeling of the Committee was that it is a matter which ought to be settled at an early date, and that it ought not to be hung up indefinitely. At the same time full opportunity ought to be given to the International Conference to settle the question in connection with the other matter, and I hope they will be able to do so. So far as I am concerned I shall give them every support in my power as representing the Board of Trade, in order to enable them to arrive at a satisfactory solution, and an international agreement. If the suspensory Clause is now inserted I think the Members of the Committee and the House will feel that they ought to give a sympathetic reception to the other Bill which will be necessary to carry out the International Convention when it comes into being. They will then have dealt with the question with due consideration from the point of view of the shipowners. That remark also applies to the dockowners, bargeowners and others interested in the matter. I hope that the House, looking at the matter all round, especially after the speech of the hon. Member for Liverpool, will allow this Clause to be inserted in the Bill. I do not think it will prejudice the International Convention, which I hope will be brought to a satisfactory conclusion within a short time.

Proposed Clause read a second time and added to the Bill.