1. Factual Background

On 14 July 1887, the squadron ironclad Emperor Alexander II was launched at the New Admiralty in St Petersburg. It was an occasion of both significance and celebration, since the Emperor Alexander II was the first Baltic ironclad to be constructed in fifteen years.

Following the solemn ceremony, the ironclad was towed to the Baltic Shipyard quay, where fitting-out continued, including the installation of boilers and engines, boats, torpedo tubes, and barbette mountings. On 25 August 1889, the Emperor Alexander II entered service for the first time and moved to the Konstantinovsky dock at Kronstadt, later anchoring in the Greater Kronstadt Roads.

A year later, on 28 August 1890, the ironclad became the subject of an incident reported throughout the St Petersburg press. As she was weighing her port anchor, making slow way and turning to port, the Emperor Alexander II collided with the steamship Olaf, which unexpectedly altered course while abeam of the ironclad. The collision resulted in substantial damage to the ironclad’s starboard side, and she was compelled to return to harbour for repairs.¹

Taking the view that the collision was the fault of the master of the steamship Olaf, the Ministry of the Navy filed a claim with the St Petersburg Commercial Court against the master and, should he prove insolvent, against the Danish company Karl, seeking damages in the amount of RUB 3,410.85.

The Commercial Court of St Petersburg dismissed the claim. The court concluded that the steamship Olaf was under the control of the pilot, who should bear full responsibility for the collision.

Dissatisfied with the ruling, the Ministry of the Navy lodged an appeal, thereby bringing the case before the Second General Assembly of the Governing Senate.

Did the Commercial Court of St Petersburg rule correctly? Did the Second General Assembly of the Governing Senate uphold that position? And how would the case be resolved today? Let us consider each question in turn.

2. The Evolution of the Regulation of a Pilot’s Private-Law Liability to Third Parties in Russia

2.1. The Development of Legislation on a Pilot’s Liability in the Eighteenth Century

A pilot is a professional whose role is to guide vessels along fairways whose particular features may pose a danger and be unfamiliar to the master of the vessel. The etymology of the word lotsman (pilot) in Russian is not entirely clear: some sources indicate that it derives from the Dutch loodsman, while others suggest the German lotse, although the term bears the same meaning in either case.

The institution of maritime pilots developed in Russia comparatively late, driven by the growing significance of commercial shipping after Russia gained access first to the Baltic and later to the Black Sea.

For instance, mention of the pilot’s status may be found in the 1722 Regulations on the Administration of the Admiralty and the Shipyard: “The master over the navigators shall keep the fairway, from Kronshlot even unto Varivaldai, ever in his keeping, and shall set beacon marks … He shall likewise have a sufficient number of pilots in all the Russian harbours, where and in such number as may be fitting, for the conducting of ships and the setting of beacons, and therein shall have all care and make answer therefor.”²

For a long time, the regulation of pilots’ activities was administrative in nature and did not address their participation in private-law relations. The first detailed Russian source governing a pilot’s private-law liability may be regarded as the Merchant Shipping Charter of 23 November 1781, in which the pilot’s status and liability were set out in Chapter II, “The Duties of the Owner of a Ship or Other Vessel,” and Chapter XIII, “On Shipwreck or Loss, Salvage Reward, and Pilots.”³

In particular, according to Article 4 of the Merchant Shipping Charter: “… from the time when port or coastal guides, or pilots, take charge of a ship or vessel, they shall be responsible for it until the ship or vessel has reached a safe anchorage, port, or harbour; and if any harm, damage, or loss is caused to the ship or vessel while it remains under the charge of the said port or coastal guides or pilots, a master of the ship or vessel shall be entitled to seek satisfaction from them through their association, or from the proper authority in the land where they are. But if the master of that ship or vessel, or the navigator, should oppose the port or coastal guides or pilots in any matter relating to their duty, or should fail to make or shorten sail, or fail to keep the ship or vessel as directed by them, and the said port or coastal guides or pilots should declare to the master of the ship or vessel that, by reason of such conduct on his part, they relinquish charge of the ship or vessel, then the master of the ship or vessel shall himself remain liable if, by reason of such opposition to the port or coastal guides or pilots, any harm, damage, or loss is caused to the ship or vessel or cargo.”

This substantial extract from the Charter clearly captures the eighteenth-century Russian legal understanding of the pilot’s authority and of the limits of his liability vis-à-vis the shipowner. The pilot (port or coastal) took the vessel under his charge and, by law, was entitled to give directions regarding its navigation within the pilotage area, so far as such directions fell within the scope of their duties. They could not, however, compel the master or the shipowner to obey those directions; instead, he was entitled to relinquish charge of the ship or vessel, thereby freeing himself from liability for the conduct of the pilotage.

It is worth noting, however, that the Charter addresses the pilot’s liability only in respect of the ship or vessel and only as against the master of the ship or vessel. Chapter XII, “On Casualty and Accident,” is entirely silent on the pilot’s liability for damage to the property rights of third parties other than the master of the ship or vessel. Instead, the Charter makes clear, for example, that:

– “The navigator or helmsman steers the ship or vessel upon the water” and “shall obey the master of the ship and vessel and carry out his orders accurately and faithfully” (Arts. 59 and 60 of the Merchant Shipping Charter);

– “Should ship or vessel A, by reason of the negligence, ignorance, or obstinacy of the master of the ship or vessel, or of the ship’s or vessel’s servants or mariners, come together with ship or vessel B, and from such collision there be caused damage or loss to ship or vessel B, or to the goods or cargo laden thereon, then the shipmaster or the servants or mariners of ship or vessel A shall be bound to pay according to the measure of their wages and proportionately to the value of the ship or vessel; and the owners of the ship or vessel shall pay the remaining part in the same proportion” (Art. 263 of the Merchant Shipping Charter).

The above suggests that the master of the ship or vessel was not deprived of control over the vessel in the presence of a pilot, the navigator or helmsman remained subject exclusively to the master of the ship or vessel, who could, moreover, act contrary to the pilot’s directions and remained liable for so-called average arising from mutual damage, seemingly regardless of whether the vessel had been placed under the pilot’s “charge.”

2.2. The Development of Legislation on a Pilot’s Liability in the Nineteenth and Early Twentieth Centuries

The nineteenth century was a period of significant reform in Russian law. Of particular importance among them was the reform of commercial legislation, embodied in the publication of the Codes of Laws of 1836 and 1842, which included the “Commercial Institutions and Statutes.” From 1857, the commercial statutes were arranged in five books, before being revised in 1887, 1893 and 1903, the last revision consolidating them into three books.

Let us turn to the final revision of the commercial legislation as the pinnacle of nineteenth-century legal thought in the field of maritime law, namely Part 2 of Volume XI of the Commercial Code, 1903 edition:⁴

– “A shipmaster is the person entrusted with the management of a ship (Articles 175 and 182) for an agreed remuneration or a specified share of the profits earned” (Art. 205);

– “The presence of a pilot on board does not relieve the skipper or shipmaster of responsibility for navigating the vessel in accordance with the pilot’s directions” (Art. 359);

– “Where the skipper or shipmaster, having taken a pilot on board, fails to comply with the pilot’s directions or demands that the vessel proceed where the pilot considers obstacles to exist, the latter shall be entitled, in the presence of a third person, to disclaim responsibility for the consequences, but shall, even in such case, be obliged, at the request of the skipper or shipmaster, to furnish all information necessary for safe navigation” (Art. 360);

– “If a collision between vessels occurs through the fault of one of the parties, whether by reason of non-compliance with the established rules and precautions, or by reason of lack of skill, negligence, or obstinacy on the part of the shipmaster or skipper, the pilots [emphasis added], or the ship’s crew, the party at fault shall be bound to compensate for the damage and loss caused by the collision to either vessel, or to the persons and goods on board” (Art. 472).

Although the wording changed over 122 years, the quoted provisions demonstrate that the substance of the legal relationship in this respect remained unaffected: the pilot is entitled to give directions, but the skipper or shipmaster is not obliged to follow them.

The legislation was clarified, for instance, by the introduction of a rule making the skipper and the shipowner responsible for the handling of the vessel even where a pilot was on board, and also in the fact that, unlike the Merchant Shipping Charter of 1781, the law no longer allowed the pilot to order sail to be made or shortened, thus limiting the scope of the pilot’s authority.

Even so, the period still faced a live question as to the extent of the shipowner’s and the master’s liability when a vessel was navigating in pilotage waters with a pilot on board: were the shipowner or the master to bear liability for consequences attributable to matters lying within the pilot’s competence? It was precisely this question that gave rise to the consideration of the present case by the Second General Assembly of the Governing Senate, whose position will be examined below.

Professor G. F. Shershenevich gave a fairly simple answer to this question: the pilot is responsible for deciding where the vessel should go, whereas the master is responsible for how she is taken along that route: “If the vessel goes aground, the pilot is at fault; if, through faulty manoeuvring, the vessel collides with another vessel, the master is at fault,” since “the law continues to hold the master responsible for the management of the vessel even in the presence of a pilot.”⁵

Professor D. K. Lavrentiev held a similar position: “The master is the person responsible for the overall navigation of the vessel; the presence of a pilot on board does not entirely displace that responsibility, but merely qualifies it: the pilot is responsible for the safety of the route he indicates and for its direction (shoals, depths, and the like), while the master is responsible for navigating the vessel along that route (collision with another ship when turning).”⁶

For all its brevity, this formulation found no favour with the St Petersburg Commercial Court, and the 1903 Commercial Code offers scarcely any clear or relevant provisions on the point.

2.3. The Development of Legislation on a Pilot’s Liability in the Twentieth Century

The next legal source of particular significance for this study is the 1929 USSR Merchant Shipping Code.⁷

The radical shift in the economic paradigm, the diminished importance of private property, and the intrusion of meticulous state control into almost every sphere of economic activity might, at first sight, have been expected to alter the course of maritime legislation.

But as regards the pilot’s private-law liability, these changes affected the legal form of the relationship rather than its substance, as reflected in the 1929 USSR Merchant Shipping Code and Appendix V thereto:

– “The presence of a pilot on board does not relieve the master of responsibility for the navigation of the vessel” (Appendix V, para. 19);

– “Should the master, having received a pilot on board, fail to act in accordance with the latter’s directions, or require the vessel to be navigated when the pilot considers that impediments exist, the latter shall be entitled, in the presence of a third person, to renounce responsibility for the consequences. In such a case as well, the pilot shall, at the master’s request, communicate all information necessary for the safety of navigation” (Appendix V, para. 22);

– “If the collision was caused by the wrongful acts or omissions of one of the vessels, the loss shall be borne by the party at fault” (Art. 157);

– “The liability provided for in arts. 156–159 shall likewise arise where the collision occurred through the fault of a pilot (Appendices V and VI to this Code), notwithstanding that recourse to the latter’s services was compulsory” (Art. 159);

– “Liability for casualties caused through the fault of state maritime pilots shall rest with the State, subject, however, to the limitation that such liability shall extend only to the amounts of the casualty funds for the individual seas” (Appendix V, para. 8).

Almost all the above provisions repeat the previously existing regulations on the shipmaster’s responsibility for the managing of the ship, on the pilot’s right in certain circumstances to disclaim responsibility, and the shipowner’s liability in the event of a collision causing mutual damage, even “where the collision occurred through the fault of the pilot [emphasis added].”

The quoted wording of Article 159 conceals a broader legislative approach to the substance of the legal relations arising from pilotage: the pilot’s actions may be the cause of a collision between vessels. Put differently, the wording suggests that the pilot is vested with an exclusive competence that falls outside the scope of the master’s responsibility and, accordingly, the shipowner’s liability.

The last provision quoted (para. 8 of the Appendix), when interpreted literally, falls outside the general concept of regulation. The case law, however, indicates that this rule governed the pilot’s liability as against the shipowner, rather than as against third parties

An illustration of the application of the above provisions may be found in the case concerning the collision between the steamship Sørborg and barges Nos. 3 and 82, heard by the Maritime Arbitration Commission at the All-Union Chamber of Commerce.⁸

According to the Commission’s award, during the proceedings counsel for the owner of the steamship Sørborg applied to have the Northern Steamship Company joined to the case as a third party on the defendant’s side. The motion was justified on the basis that the shipowner could not be held liable for the collision with the barges, because at that moment the steamship was under the pilotage of the Port of Arkhangelsk.

Referring to Article 157 of the 1929 USSR Merchant Shipping Code and Article 5 of the Convention of 23 September 1910, the Commission dismissed the motion, explaining that: “even had it been established that the collision resulted from the pilot’s improper acts [emphasis added], liability to Eksportles would in that case still rest exclusively with the owner of the steamship Sørborg, and, for the purpose both of determining whether such liability exists and of assessing its extent, the question whether the pilot’s conduct was proper or improper is of no significance whatever.”

The quote above implies that not only the legislator but also the law enforcement authorities proceeded on the assumption that a pilot’s acts might cause not only a collision between vessels, but also loss to third parties.

The next source of law to which reference may be made is the 1968 USSR Merchant Shipping Code.⁹ There is, however, no need to reproduce its provisions, as, in the part relevant to the present analysis, they repeat those of the 1929 Code.

The fact that the regulation remained unchanged is also borne out by practice, for example by the award of the Maritime Arbitration Commission at the USSR Chamber of Commerce and Industry in the case concerning the collision between the motor vessel Ivan Kulibin of the Latvian Shipping Company and BMRT-0319 Rudolf Blaumanis of the Riga Trawler and Refrigerated Fleet Base.¹⁰

According to the text of the Commission’s judgment, the collision occurred in the outer roads of the port of Ventspils: as she was entering the port, Rudolf Blaumanis struck the starboard side of Ivan Kulibin with her stem, the latter being at the time awaiting bunkering.

In the course of the proceedings, the Riga Base stated that it was prepared to compensate 50 per cent of the loss, on the view that the remaining half should be borne by the Ventspils Commercial Sea Port, whose pilot was conducting BMRT-0319 (large freezer fishing trawler) Rudolf Blaumanis at the time of the collision.

The Commission refrained from considering the issue of the pilot’s fault and recovered the loss from the Riga Base in full, reasoning that: “pursuant to Article 258 of the USSR Merchant Shipping Code, the shipowner is liable for loss caused by a collision even where the collision occurred through the fault of the pilot [emphasis added].”

2.4. The Development of Legislation on a Pilot’s Liability in the Twenty-First Century

The 1999 Merchant Shipping Code now constitutes the principal legislative instrument governing the pilot’s private-law liability and contains the following relevant provisions:¹¹

– “For the purposes of the safe navigation of the ship, the master of the ship and the external master of a fully autonomous ship shall follow the reasonable recommendations of the pilot and shall not interfere with his work without sufficient grounds” (Art. 96);

– “The presence of a pilot aboard a ship shall not absolve the shipmaster’s responsibility for the management of the ship. In the presence of sufficient grounds for doubts about the pilot’s recommendations, the shipmaster shall have the right to renounce the services of this pilot to ensure the safe management of the ship. If pilotage is compulsory, the shipmaster shall demand that the pilot should be replaced” (Art. 102);

– “The organisation employing the pilot who carried out the vessel’s pilotage shall bear liability for loss caused to the vessel as a result of improper pilotage through the fault of the pilot” (Art. 103);

– “The organisation employing the pilot who carried out the vessel’s pilotage shall not bear liability to third parties for losses caused as a result of improper pilotage” (Art. 105);

– “The liability established by Articles 312 and 313 of this Code shall also fall due in case if the collision of ships took place through the fault of the pilot, even if pilotage was compulsory” (Art. 314).

The contemporary provisions lend even greater clarity to the regulation of the pilot’s private-law liability: they expressly provide that neither the pilot nor the organisation employing him is liable to third parties (Art. 105), that the pilot’s recommendations are advisory only (Art. 96), and that control of the vessel rests entirely with the master (Art. 102).

In other words, the current position treats the pilot as an adviser to the master, so that any mistake by the pilot is imputed to the master. At the same time, the pilotage organisation incurs liability for that mistake only vis-à-vis the shipowner under the contract for pilotage services.¹² This concept has likewise been endorsed in contemporary, albeit limited, judicial practice.

For example, reference can be made to the ruling of the Commercial Court of the North-Western District of 20 June 2014 in case No. A56-32342/2013, which amended the ruling of the court of appeal, which had held the pilot responsible for the management of the ship. “The presence of a pilot on board does not displace the master’s responsibility for the navigation of the vessel and, accordingly, the shipowner’s liability for loss caused by the wrongful acts of one of the vessels,” the court of cassation explained.

Similarly, the ruling of the Commercial Court of the North Caucasus District dated 13 July 2015 in case No. A32-303/2014 states that: “the master’s entrusting of the vessel’s navigation to pilot A.I. Ilchenko does not relieve the shipowner of liability.”

Yet the current Russian Merchant Shipping Code still contains the wording contemplating the possibility that “the collision between vessels occurred through the fault of the pilot” (Art. 314). That wording revives the question of the limits of the pilot’s liability to third parties, as well as the conceptual basis on which the shipowner bears liability for the pilot’s acts.

3. Civil Law Analysis of Current Provisions on a Pilot’s Liability as Applied to the Case in Question

The question of the shipowner’s liability for loss resulting from a collision between vessels, where the collision was caused by the pilot’s fault, should be approached by first examining the nature of the legal relationship between the pilot and the shipowner, and then tracing, step by step, the conceptual basis on which liability is placed specifically on the shipowner.

3.1. The Foundations of the Legal Relationship Between the Pilot and the Shipowner

The Russian Merchant Shipping Code recognises two forms of pilotage: compulsory pilotage (Art. 90) and non-compulsory pilotage (Art. 91), otherwise termed optional pilotage. In either case, the shipowner is required to pay a pilotage due, the amount of which is determined by the competent state authority (Art. 106).

Analysing these provisions, Professor V.V. Vitryansky concluded that the legal relationship arising between the shipowner and the pilotage organisation, acting through the pilot, is contractual in nature and mediates the provision of pilotage services for remuneration.¹³

A few years later, G. V. Ivanov likewise concluded in his Candidate of Sciences dissertation in law that pilotage is effected on the basis of a contract for the provision of specialised services.¹⁴

At the same time, neither Professor V.V. Vitryansky nor G. V. Ivanov called into question the contractual nature of the legal relationship between the shipowner and the pilotage organisation.

Yet it is plain that not only the amount of the pilotage due, but virtually all the other elements of the contract with the pilot as well, apart perhaps from the parties to the contract and certain organisational conditions, are imperatively defined.

Thus, the pilot’s rights and duties are laid down by the Russian Merchant Shipping Code and the Regulations on Maritime Pilots,¹⁵ and cannot be altered by the will of the parties to the contract. The rights and duties of the master in his dealings with the pilot are regulated in the same way. Likewise, the limits of the liability of the pilot and the pilotage organisation are prescribed in mandatory terms.

In other words, what remains for the shipowner and the pilotage organisation to regulate is limited to matters of organisation: they may settle the time of pilotage, the particular vessel to be piloted, the destination, and the like.

Article 2 of the Russian Civil Code provides that civil-law relations, including contractual relations, comprise property and non-property relations based on the equality, autonomy of will, and property autonomy of the participants.

Professor S.V. Sarbash notes that the principle of freedom of contract constitutes a manifestation of the autonomy of will, involving, first, freedom to define the terms of the contract and, secondly, freedom to conclude it.¹⁶

The provisions set out above make clear that the autonomy of will of both the pilotage organisation and the shipowner is substantially limited when it comes to determining the terms of the pilotage contract. At the same time, as regards the conclusion of a contract in cases of compulsory pilotage, freedom of contract is limited for both the shipowner and the pilotage organisation.

The foregoing seriously calls into question the contractual nature of the relationship under examination. The mandatory regulation of much of that relationship reflects the fact that, under Articles 86 and 92 of the Russian Merchant Shipping Code, the pilot in fact performs a public function aimed at ensuring the safety of merchant shipping.

In these circumstances, it is rather controversial to ascribe a contractual character to the legal relationship between the pilotage organisation and the shipowner. For the purposes of the present study, however, what is of practical significance is precisely this dual nature of the relationship between the pilotage organisation and the shipowner.

3.2. Ships as a Source of Increased Danger

Under paragraph 1 of Article 1079 of the Russian Civil Code, the operation of a vessel constitutes a source of increased danger.

The law provides only limited guidance as to the category of a “source of increased danger,” offering little more than a list of examples, whereas Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated 26 January 2010 provides more substantive guidance: “According to Article 1079 of the Russian Civil Code, any activity that leads to an increased likelihood of harm due to the impossibility of exercising full human control over it should be recognised as a source of increased danger” (para. 18).¹⁷

Notably, as the case under consideration shows, the impossibility of exercising full control over the steamship Olaf is illustrated by the fact that, however much he may have wished to do so, the master had no power to stop the multi-ton vessel immediately as it was heading directly towards the ironclad Emperor Alexander II.

This qualification implies two outcomes: the owner of the source of increased danger is liable for the damage caused by it; liability does not arise if the damage was caused by force majeure or by the victim’s intentional conduct.

This is explained by the fact that the law operates as a system of risk allocation, as Professor Y.M. Magaziner observed,¹⁸ and that the owner of a source of increased danger bears the risk of liability for the harm caused because, as Professor S.N. Bratus noted, “he has consciously chosen a course of conduct for which he bears responsibility for its undesirable consequences, although he is not at fault.”¹⁹

In the present case, however, by virtue of paragraph 2 of clause 3 of Article 1079 of the Russian Civil Code, the special rule laid down in paragraph 1 of Article 1079 of the Russian Civil Code did not apply, since the damage to the ironclad Emperor Alexander II arose from the interaction of two sources of increased danger: both vessels were in operation.

3.3. Identifying the Concept Governing the Allocation of Liability Between the Shipowner and the Pilot Under Russian Law

The inapplicability of paragraph 1 of Article 1079 of the Russian Civil Code means that the obligation to compensate for damage shall be imposed on the party causing the damage, considering its fault (Art. 1064 of the Russian Civil Code). The relevant regulation is also set out in Article 312 of the Russian Merchant Shipping Code: the losses shall be borne by the ship at fault for the collision.

Consequently, the key question is who is the party responsible for the damage caused by the collision between the steamship and the ironclad?

In principle, given the composition of the legal relationship and the parties involved, three answers to this question may be posited:

– the person liable in tort is the organisation by which the pilot is employed (Art. 87 of the Russian Merchant Shipping Code; Art. 1068 of the Russian Civil Code);

– the person liable in tort is the shipowner, by whom the vessel’s master is employed (Art. 52, Art. 57 of the Russian Merchant Shipping Code, Art. 1068 of the Russian Civil Code);

– owner employing the master bear joint and several liability (Art. 1080 of the Russian Civil Code).

As a matter of civil law (disregarding Art. 105, Art. 314 of the Russian Merchant Shipping Code, and related provisions) the choice between these alternatives depends on whose unlawful conduct caused the collision between the vessels: that of the pilot or that of the master.

The legislation currently in force (Arts. 105 and 314 of the Russian Merchant Shipping Code) answers this question quite plainly. Were the case concerning the collision between the steamship Olaf and the ironclad Emperor Alexander II to be decided today, the answer would be as follows:

– the tortfeasor is the shipowner, whose employee is the master of the vessel (Arts. 52 and 57 of the Russian Merchant Shipping Code; Art. 1068 of the Russian Civil Code).

In doctrinal terms, attributing liability to the shipowner through the person of the vessel’s master presupposes proof that the vessel had not ceased to be under the shipowner’s control (entailing an analysis of the limits of the powers of the pilot and the master), and that the shipowner, acting through the master, had not lost the factual ability to control the vessel (entailing an analysis of the respective competences of the pilot and the master).

3.3.1. The evolution of the limits of a pilot’s authority

The issue of the limits of the pilot’s authority is rooted in the fundamental problem of a divisum imperium–a conflict of authority capable of producing confusion and manifold mischief. Hence, in accordance with the well-known maxim that “There cannot be two masters on one ship,” the legislature was required to designate a single person to command the vessel during pilotage.

The preceding analysis of the evolution of Russian legislation on pilotage shows that the pilot’s responsibilities have been progressively severed from the vessel’s operational management.

Thus, while the provisions of the Merchant Shipping Charter of 23 November 1781, granting the pilot the right to give orders to the vessel’s master, in matters falling within their duty, whether to make more sail, or shorten sail, or keep the ship or vessel on such course as they should direct, may still permit the inference that the pilot exercised control over the vessel, later legal sources leave no room for that proposition:

1) From the eighteenth century onwards, and throughout the Soviet period, the master’s failure to comply with the pilot’s directions entitled the pilot to disclaim responsibility;

2) Similarly, from the eighteenth century onwards, the law conferred on the pilot no mechanism by which to compel the master to follow those directions;

3) From the nineteenth century onwards, the instruments examined contain a rule that the presence of a pilot does not relieve the master of responsibility for the navigation of the vessel;

4) The most marked development in this respect came with the Russian Merchant Shipping Code, under which the pilot’s orders were, even in terminological terms, recast as recommendations.

At the heart of these provisions lies the rule that the shipowner remains liable in tort even where the collision between vessels occurred through the pilot’s fault (Art. 472, Part II, Vol. XI of the 1903 Commercial Code; Art. 159 of the 1929 USSR Merchant Shipping Code; Art. 258 of the 1968 USSR Merchant Shipping Code; Art. 314 of the Russian Merchant Shipping Code).

In light of the foregoing, the navigation of the vessel during pilotage does not fall within the pilot’s employment-related duties (whether service or official), but remains within the master’s domain. A literal reading of the Russian Merchant Shipping Code points the same way, since it provides that the shipowner is liable for a collision even where it occurred through the pilot’s fault. That formulation, however, creates a degree of terminological confusion, which will be noted below.

3.3.2. Delineating the competences of the pilot and the master

The second stage of the analysis in this respect arises from the need to reconcile the provisions of the Russian Merchant Shipping Code with those of the Russian Civil Code: if Article 314 of the Russian Merchant Shipping Code proceeds on the footing that a collision between vessels may occur through the pilot’s fault, even in cases of compulsory pilotage (Art. 90 of the Russian Merchant Shipping Code), on what conceptual basis, then, is the shipowner held liable to third parties for the pilot’s acts (Arts. 105 and 314 of the Russian Merchant Shipping Code)? And if the vessel never leaves the master’s control, in what sense can such a collision be said to occur through the pilot’s fault?

To answer these questions, it is necessary to distinguish between the respective competences of the master and the pilot.

In particular, Article 96 of the Russian Merchant Shipping Code provides that the master is required to follow the pilot’s reasonable recommendations and may not interfere with the pilot’s work without sufficient grounds. As the foregoing analysis of the development of maritime legislation has shown, these formulations first appeared in the current Merchant Shipping Code.

The provisions cited contain two evaluative standards: reasonableness and sufficiency, which presuppose an evaluating subject. It is the master of the vessel who acts as the evaluating subject in assessing both the reasonableness of the pilot’s recommendations and the adequacy of the grounds for intervening in the pilot’s work. In other words, this means that the master must possess the knowledge necessary to make such an assessment in a meaningful way. It is therefore necessary to turn to the legal rules governing the competence of the master and the pilot.

3.3.2.1. The competence of the pilot

Under Article 87 of the Russian Merchant Shipping Code, pilotage is carried out by pilots holding pilotage certificates issued by harbour masters authorising them to conduct vessels in specified areas.

Under paragraph 2 of the Regulations on Maritime Pilots,²⁰ a pilot must possess the knowledge and skills required by the relevant professional standard.

According to the professional standard Pilot, the pilot is required, inter alia, to:²¹

– provide the master of the vessel with information on the navigational, hydrographic, and hydrometeorological conditions of the intended voyage, the state of navigation, the hazards and particular features along the route, and the characteristics of navigation equipment and navigational landmarks;

– know the boundaries and pilotage description of the pilotage area, together with those features of the area that bear upon the safety of navigation.

3.3.2.2. The competence of the master

Under Article 54 of the Russian Merchant Shipping Code, only persons holding the diplomas and certificates of competency prescribed by the Regulations on the Certification of Ships’ Crew Members, approved by the federal executive authority in the field of transport, may hold positions as members of a vessel’s crew.

The Regulations on the Certification of Crew Members of Seagoing Vessels were approved by Order No. 378 of the Ministry of Transport of Russia of 8 November 2021.²² An analysis of those Regulations shows that attaining the status of master of a vessel presupposes a lengthy course of education and professional advancement.

Among other things, a person seeking to obtain a master’s certificate for a seagoing vessel is expected to complete professional training in navigation, then obtain certification as an officer of the watch and/or first mate, accumulate the requisite sea service, and so forth.

It follows from the educational standard for Speciality 26.05.05 Navigation²³ and the professional standard Navigator²⁴ that the master of a vessel must be able to use charts and nautical publications, such as sailing directions, tide tables, notices to mariners, and radio navigational warnings; to use the functions of the Electronic Chart Display and Information System for route overview and voyage planning; and to operate navigational instruments, technical means of navigation, and satellite navigation equipment, among other things.

Taken together with the fact that the master of a vessel will generally possess considerable maritime experience, and in light of the contemporary level of technical and cartographic development, the master’s competence implies an ability to navigate through pilotage areas without assistance.

It is precisely this that explains the master’s ability to assess both the reasonableness of the pilot’s recommendations and the sufficiency of the grounds for intervening in the pilot’s work.

3.3.2.3. The necessity of compulsory pilotage

In light of the foregoing, the natural question arises whether compulsory pilotage remains necessary today.

The answer to this question lies not so much in the extent of the pilot’s competence as in the need to mitigate the adverse impact of the human factor. A pilot who possesses the knowledge necessary for safe navigation in a particular area, who is a native speaker of the local language and understands the local culture, and who is physically present on board is capable of reducing the influence of that human factor.

That same logic is carried through into the latest amendments to the Russian Merchant Shipping Code, under which the pilot is treated as an adviser to the master: he may give recommendations, but may not insist that they be followed.

3.3.3. The concept governing the allocation of liability between the shipowner and the pilot under Russian law

In light of the foregoing, the proposed concept governing the allocation of liability between shipowner and pilot is based on the premise that the master remains responsible at all times for the navigation of the vessel, even in the presence of a pilot, and retains the factual ability to control the vessel even within an area of compulsory pilotage.

Accordingly, once the Russian Merchant Shipping Code is read in harmony with the Russian Civil Code, the shipowner’s liability to third parties under Article 314 of the Russian Merchant Shipping Code can be sustained only on the footing that the pilot’s fault in the collision is excluded.

This approach corresponds to the prevailing position that the pilot serves as an adviser to the vessel’s master.

3.4. The Concept of Allocation of Liability Between the Shipowner and the Pilot Under English Law

3.4.1. Setting out the concept governing the allocation of liability between the shipowner and the pilot under English law

Given the similarity between the legal regimes governing pilotage in Russia and the United Kingdom, it is possible to undertake a comparative analysis of the limits of the pilot’s liability to third parties under English law.

Considering the question of a pilot’s liability where a vessel has suffered loss or caused damage while under compulsory pilotage, M. Tsimplis and R. Shaw have suggested, hypothetically, that liability might be imposed not on the shipowner, but rather on the authority that compels the shipowner to take a pilot.²⁵

Prior to 1913, English law resolved the issue in exactly these terms: the shipowner’s liability was excluded. In common law, the maxim respondeat superior operated where pilotage was voluntary, since the pilot was chosen by the shipowner, or on the latter’s behalf, and contractual relations existed between the shipowner and the pilot. Where, however, pilotage was compulsory, no such relationship existed, and for that reason the shipowner was not liable for the pilot’s acts.

O. A. de Castro Jr and C. L. Pasold have observed that this rule gave rise to considerable injustice as regards injured parties, who were unable to recover compensation for their loss from the shipowner; this, in turn, prompted a change in the rules.²⁶

The change was introduced by the Pilotage Act 1913, section 15(1) of which provided that the shipowner bore liability for any loss or damage arising at a time when the vessel was under compulsory pilotage, as though the pilotage had not been compulsory.²⁷

Equivalent provisions are now reflected in section 16 of the Pilotage Act 1987: the fact that a ship is navigating in an area and under conditions in which pilotage is compulsory for that ship does not affect the liability of the owner or master of the ship for any damage or loss caused by the ship or by the manner in which it is navigated.²⁸

It should be noted, however, that under section 31(1) the term “pilot” denotes any person, not being a member of the ship’s crew, who has the conduct of the ship.²⁹ The conduct of the ship is to be understood here not as mere assistance in navigation, but as the actual navigation of the vessel / the setting of its course.³⁰

Read against the historical background of section 15(1) of the Pilotage Act 1913, section 16 of the Pilotage Act 1987 has been interpreted as imposing on the shipowner liability for the negligence of a compulsory pilot upon the shipowner in respect of claims by third parties, and as treating the pilot as the shipowner’s employee for all purposes, even where the loss is suffered by the shipowner himself.³¹

In other words, English law places liability for the pilot’s acts upon the shipowner as though the pilot were the shipowner’s servant. This is because the pilot is regarded not as an adviser to the master, but as the person to whom the conduct of the vessel is entrusted. As O. A. de Castro Jr and C. L. Pasold put it, the shipowner is required to take the pilot’s competence, experience, and knowledge at face value.³²

3.4.2. Analysis of whether this concept can be applied in Russian law

The rule offered by English law as its conceptual solution would, in Russian law, be seen as an exception to Article 1064 of the Russian Civil Code, which provides that the person causing harm is bound to compensate it in full.

That exception is embodied in the principle Qui facit per alium facit per se – he who acts through another does the act himself, which is reflected in Articles 402, 403, and 1068 of the Russian Civil Code.

The effect of this principle is that a debtor’s entrusting performance of an obligation to a third party cannot discharge the debtor of liability for the performance of that obligation (Art. 308(3) of the Russian Civil Code).

The application of this concept in Russian law may nevertheless prove difficult for a number of reasons.

3.4.2.1. The mandatory character of pilotage calls into question the applicability of the principle Qui facit per alium facit per se

The first challenge arises from the fact that, where the shipowner is under a duty to resort to the services of a pilot, and non-compliance with that duty entails a sanction, the application of the principle Qui facit per alium facit per se is limited by the fact that the shipowner has not voluntarily entrusted any duties to the pilot: the pilot’s presence on board is compelled rather than chosen.

Meanwhile, Russian law stipulates that the master may require the pilot to be replaced if there are sufficient grounds to doubt the reliability of their recommendations. (Art. 102(1), para. 2 of the Russian Merchant Shipping Code), and may even acquire the right to navigate in compulsory pilotage areas without a pilot (Art. 90(1) of the Russian Merchant Shipping Code)

Nevertheless, unlike under English law, the Russian Merchant Shipping Code treats the pilot as an adviser to the master, not as a person who assumes control of the vessel. Nor can the pilot’s acts, as such, give rise to loss to third parties, since final decisions concerning the navigation of the vessel must be taken by the master. Accordingly, there is no true entrustment of duties as a whole.

3.4.2.2. The pilot is not the shipowner’s employee under Russian law, thereby precluding the application of Article 1068 of the Russian Civil Code

The second challenge arises from the fact that, unlike Article 403, Article 1068 of the Russian Civil Code allows tort liability to be attributed to a person only for the acts of those third parties who are that person’s employees.

As explained above, English law treats the pilot as the shipowner’s servant even where pilotage is compulsory. Russian law contains no comparable rule.

Moreover, Russian law does not provide for any transfer of control of the vessel to the pilot.

3.4.2.3. The pilot’s duty in an area of compulsory pilotage is imposed by law

The third challenge arises from the fact that, as shown above, at least in an area of compulsory pilotage the pilot acts pursuant to law, discharging a public function of ensuring the safety of navigation.

To reconcile the public and private dimensions of the relationship between pilotage organisation and shipowner, one would therefore need a carefully reasoned basis for treating the pilot as the shipowner’s servant.

3.4.2.4. Conclusion on the applicability of the English law concept

The challenges analysed above indicate that the concept elaborated in English law, under which the pilot is treated as the shipowner’s servant, cannot be applied in Russian law.

The decisive obstacle is that current Russian law conceives of the pilot as an adviser to the master, rather than as a person to whom control of the vessel is transferred.

3.5. Under Contemporary Russian Law, Liability for the Collision Between the Steamship Olaf and the Ironclad Emperor Alexander II Would Fall on the Shipowner

Getting back to the initial question of how the case concerning the collision between the steamship Olaf and the ironclad Emperor Alexander II would be resolved today, one must conclude that liability for the collision would in any case be attributed to the shipowner.

4. The Position of the Second General Assembly of the Governing Senate

It is now time to turn to the judgment adopted by the Second General Assembly of the Governing Senate.

The Assembly did not agree with the position taken by the St Petersburg Commercial Court and held the claim of the Ministry of the Navy to be well founded, stating in terms as follows:

“Pursuant to Articles 216 and 218 of the Commercial Code, the management of a ship is entrusted to the shipmaster or skipper. The law obliges the shipmaster to take a guide or pilot wherever the law, custom or necessary precaution so requires (Art. 245 of the Commercial Code), under penalty of civil (Art. 246 of the Commercial Code) and criminal (Art. 1242 of the Penal Code) liability.

By imposing on the shipmaster the obligation to comply with the instructions of the pilot who takes responsibility for the ship (Art. 247 of the Commercial Code), the legislation also stipulates what exactly these compulsory instructions from the pilot to the skipper should cover and what the limits of responsibility of both parties are for any unfortunate consequences of the voyage.

Thus, pursuant to Articles 320 and 321 of the Commercial Code, from the moment coastal or port pilots take a ship under their responsibility, they are liable for any harm, damage or loss that may occur through their fault until the ship is in a safe place, in a port or at a pier.

The limits of liability are objectified by two rules: the pilot is liable if the ship runs aground, or on a shoal, or on the shore (Art. 1255 of the Penal Code), but if this happens because the shipmaster has not provided or has provided the pilot with false information about the draught, length, width and capacity of the ship, the responsibility lies with the shipmaster.

The content of these provisions indicates that the pilot is only required to have a thorough knowledge of local fairways and currents, as well as other features that may affect the success of the voyage.

The pilot’s job isn’t to manage the ship in the true sense of the word or to replace the skipper, but just to guide the ship along the fairway, as clearly stated in Article 14 of the Regulations on Pilots. Accordingly, without removing the skipper from the control of the ship, but merely acting as an authoritative guide to the course that the ship should follow within the local fairway, the features of which may not be known to the skipper, the pilot is only obliged to point out to the skipper the features of the given water area and warn him about those that may pose a danger to the ship.

And since the features of the local fairway can only be understood to mean those that are hidden under water and invisible to the eye (shoals, rocks, etc.: Art. 321 of the Commercial Code, Art. 1255 of the Penal Code), only those instructions given by the pilot that are determined by the features of the fairway are binding on the skipper and are the sole responsibility of the pilot.

As for hazards that are not related to the characteristics of the fairway and therefore do not require special knowledge on the part of the pilot, they cannot fall within the pilot’s area of responsibility. Avoiding such dangers is the sole responsibility of the skipper, who oversees the ship even in the presence of the pilot (Art. 62 of the Regulations on Pilots) and who is informed about the characteristics of his ship.

Consequently, the pilot is solely responsible for unfortunate consequences arising from the hazards of the fairway itself, while responsibility for any misfortune not dependent on the characteristics of the fairway (in particular, a collision between vessels) lies entirely with the skipper.

Taking into account these rules, as well as the fact that the collision of the ships did not occur due to the characteristics of the fairway, but due to the violation by Skipper Jurgenson of the rules on speed and minimum distance between ships, the Second General Assembly of the Governing Senate finds that responsibility for the collision between the ships should be borne entirely by Skipper Jurgenson–the judgment of the St Petersburg Commercial Court is overturned, and the claim of the Maritime Department is upheld.”³³

The foregoing position points to a further model of liability allocation, one likewise described by Professors G.F. Shershenevich and D. K. Lavrentiev: the master answers for how the vessel is taken through the pilotage area, while the pilot answers for where it is taken.

In the current Russian legal context, however, that model cannot be applied, since the legislation in force treats the pilot as an adviser to the master rather than as a person to whom part of the master’s powers is delegated. It should be added that this model is itself rather controversial, as it leads back to the problem of a divisum imperium discussed earlier.

5. Conclusion

In harmony with international rules, Russian legislation limits the pilot’s liability by providing that responsibility for the navigation of the vessel lies at all times with the master.

The conceptual basis of that solution is that the pilot is treated as the master’s adviser, not as a person to whom control of the vessel is transferred; there is therefore no need to adopt the fiction that the pilot is the shipowner’s employee.

That outcome was the endpoint of a long evolution in Russian maritime law governing pilotage relations. This development manifested itself, for example, in the fact that what were once the pilot’s orders later became his directions and are now termed recommendations. With that shift in wording came a corresponding shift in legal status: as the pilot’s authority was progressively narrowed, so too was his liability.

In light of the foregoing, were the matter to be decided today, the final judgment of the Second General Assembly of the Governing Senate would be correct, although its reasoning would be inconsistent with the text of the law. ■

Notes