Captain Kenneth Macinnes For Judicial Review Of Decisions Of Forth Ports Limited And Answers For Forth Ports Limited
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2014] CSOH 92 |
| Date | 28 May 2014 |
| Year | 2014 |
| Docket Number | P883/13 |
| Court | Court of Session |
| Published date | 28 May 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 92 | |
| P883/13 | OPINION OF LORD BANNATYNE in the Petition of CAPTAIN KENNETH MACINNES Petitioner; for Judicial Review of decisions of Forth Ports Limited and Answers for FORTH PORTS LIMITED Respondents: ________________ |
Petitioner Ellis QC; Mackinnons
Respondents: J Cormack, Solicitor Advocate; Pincent Masons LLP
28 May 2014
Introduction
[1] This judicial review came before me for a first hearing. Mr Ellis QC appeared on behalf of the petitioner. Mr Cormack, solicitor advocate, appeared for the respondents.
[2] The petitioner is a self-employed pilot authorised in terms of section 3 of the Pilotage Act 1987 ("the 1987 Act"). He has been authorised within the respondents' area since 17 January 1996. The respondents are Forth Ports Limited. They are the competent harbour authority within the meaning of section 1 of the 1987 Act for the River Forth. They have authorised the petitioner to act as a pilot within their area of jurisdiction as a harbour authority. The petitioner is authorised as a senior first class pilot.
[3] The pilotage authorisation issued by the respondents and accepted by the petitioner is dated 17 and 24 January 1996. The authorisation is subject to the terms and conditions of (i) the conditions of pilotage authorisation and (ii) the Pilotage Code of Practice ("the Code"). The Code may be amended from time to time by agreement between the respondents and the Association which is appointed to act on behalf of pilots in this regard. The Forth Pilots Association is the representative body of the pilots on the Forth. The Code as amended from time to time therefore has effect as between the petitioner and the respondents as a matter of contract by virtue of the agreement contained in the authorisation and the agreement as to the terms of the Code reached from time to time between the respondents and the Association acting on behalf of the petitioner.
The Legislative and Contractual Framework
[4] The provisions of the 1987 Act so far as relevant to the present matter are:
Provision of pilotage services
"Authorisation of pilots
3.-(1) ...a competent harbour authority may authorise such persons to act as pilots in or in any part of the area in relation to which its duty under section 2(1) above is exercisable as it considers are suitably qualified to do so; and such an authorisation shall specify the area within which it has effect and may specify that it only has effect in relation to ships of a particular description...
(5) A competent harbour authority may suspend or revoke an authorisation granted by it under this section if it appears to it -
(a) that the authorised person has been guilty of any incompetence or misconduct affecting his capability as a pilot;
(b) that the authorised person has ceased to have the qualifications required from persons applying for authorisation by it under this section or has failed to provide evidence that he continues to have those qualifications...
(6) Before suspending or revoking an authorisation under subsection (5)(a) or (b) above, a competent harbour authority shall give written notice of its intention to do so to the authorised person, stating the reasons for which it proposes to act, and shall give him a reasonable opportunity of making representations."
The Code
CODE OF PRACTICE
"6. DISCIPLINARY/REVOCATION PROCEDURE
6:1 SURRENDER/SUSPENSION/REVOCATION OF AUTHORISATION AND SUSPENSION OF PILOTAGE DUTIES
The efficiency of pilotage services in the Forth depends to a large extent on a high standard of service, co-operation and discipline. Forth Ports and the Pilots recognise that it may become necessary from time to time to take action towards individual Pilots whose performance or conduct is unacceptable or contrary to the efficiency of pilotage services.
The aims of this procedure are as follows:-
(a) To clarify the rights and responsibilities of Forth Ports and the Pilots in respect of actions resulting from breaches of rules and expected standards of (a) competency and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot.
(b) Consistency and fairness of application.
(c) To provide the basis of an agreement between the Pilots and Forth Ports as to the circumstances in which the suspension and/or revocation of a pilotage authorisations may be appropriate by defining standards of (a) competence and/or (b) character and/or (c) conduct affecting or which may affect capability as a Pilot and by setting out circumstances in which both parties are agreed that a Pilot is no longer suitably qualified to be authorised under the Pilotage Act 1987 ("the 1987 Act").
(d) Without prejudice to the provisions of the 1987 Act, to set out a procedural framework which provides for suspension and/or revocation of a pilotage authorisation in circumstances, which have been defined and agreed by Forth Ports and the Pilots...
6:1.2 INCOMPETENCE/MISCONDUCT
In accordance with the terms of Section 3(5)(a) of the 1987 Act, a pilot's authorisation is liable to suspension and/or revocation if Forth Ports is satisfied that the pilot has been guilty of any incompetence or misconduct affecting his capability as a pilot. In this Clause 6, all references to "incompetence" and "misconduct" shall be construed accordingly.
Without prejudice to the provisions of the 1987 Act and for the purposes of illustration only, the following may be treated as matters of incompetence or misconduct:
(i) failure to exercise proper skill, care, attention and diligence;
(ii) violating a safety rule, which endangers the pilot or other people and causes damage to vessels, goods and/or equipment;
(iii) where a pilot gives up pilotage duty and/or leaves a vessel whilst on duty while the vessel is within the pilotage area and thereby endangering the safety or persons and property, unless the Master of the vessel gives the pilot express permission to do so or at the approved landing area to which he has been engaged to pilot the ship;
(iv) misconduct in accordance with the provisions of Section 21 of the 1987 Act or attending for or being on duty under the influence of alcohol and/or drugs;
(v) endangering the safety of persons and property by failing to comply with directions, bye-laws and procedures specified in this Code of Practice as may be amended from time to time between Forth Ports and the Association of Forth Pilots which Association shall act in this capacity on behalf of the pilots.
In the event that Forth Ports reasonably considers that a case does not involve incompetence or misconduct affecting the capability of a pilot, it shall refer the matter to the Association of Forth Pilots to be dealt with as such Association may think fit.
Following an initial review of the facts (as referred to in 6:2.3) by the Chief Harbour Master and a pilot member of the Pilotage Management Committee and taking into account comments from the pilot concerned, it may be decided that a letter from the Chief Harbour Master advising of concerns raised by the incident is sufficient...
6:2 PROCEDURES IN ALL CASES OF INCOMPETENCE/MISCONDUCT
Except where the alternatives are specifically stated below, the following procedure shall apply in all cases of incompetence or misconduct:-
6:2.1 In serious cases Forth Ports may require a pilot to immediately cease pilotage duties under his authorisation pending a formal inquiry to consider the representations of the pilot concerned by giving written notice to the pilot stating:-
(i) he is suspended from carrying out pilotage duties with effect from the date of receipt of such notice;
(ii) details for the reasons for the immediate suspension of pilotage duties; and
(iii) that Forth Ports may suspend/revoke the authorisation.
Forth Ports may immediately suspend a pilot from carrying out pilotage duties in the event of Forth Ports, in good faith, considering it necessary to preserve safety of navigation in the Forth or for any other reason where Forth Ports, in good faith, considers it necessary having regard to its own statutory duties.
Immediate suspension of pilotage duties will not prejudice the rights of a pilot to make representations in terms of Section 3(5) of the 1987 Act.
6:2.2 In cases where a pilot is involved in any collision, grounding or accident or significant incident involving a vessel under pilotage the pilot shall be obliged to deliver to Forth Ports' Chief Harbour Master a written report providing the information requested on the form agreed between Forth Ports and The Golden Lion Pilotage and Marine Services Company Limited within 24 hours of such accident and/or incident...
6:2.3 In all cases where the Forth Ports' Chief Harbour Master acting reasonably considers appropriate he, together with one of the pilots from the Pilotage Maintenance Committee, will investigate the circumstances of the alleged incompetence or misconduct without delay.
6:2.4 In all cases a preliminary inquiry will take place as soon as practically possible and the pilot involved will receive written notification from Forth Ports requiring him to attend and stating the following:-
(i) the date, time and place of the inquiry,
(ii) that he may be accompanied by another pilot or in cases, which are reasonably capable of resulting in legal proceedings, by a legal adviser.
The inquiry shall also be attended by Forth Ports Chief Harbour Master and the Pilot from the Pilotage Management Committee who investigated the circumstances of the incident. The inquiry will be in accordance with the requirements of natural justice and will be fact-finding and informal. As soon as possible after the inquiry its findings will be passed to the Convenor of the Disciplinary Committee.
6:2.5 If the Convenor considers it appropriate a disciplinary hearing will be convened and the following procedure shall apply:-
(i) Forth Ports shall given [sic] written notice by recorded...
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