In the previous issue of the newspaper "Marine news" published an interview with Federation Council member Viktor Pavlenko "a Pilot issue should be resolved" on discussion of a legislative initiative, involving the creation of the country's state pilotage service.
In the debate around the future device pilot the Affairs of the country, the editors provide an opportunity for interested parties, independent experts, practitioners and theorists to Express their position on the topic, to give expert assessment and recommendations and to share experiences with one goal: to decide this important question.
Mr egorkin, state marine pilot, pilot, the commander of the SPb, President of the Association of sea pilots of Russia, honored worker of transport of the Russian Federation, candidate of law.N.
The Council of the state Duma of the Russian Federation on 9 April 2020 the decision on the direction of bill No. 889303-7 "On amendments to the merchant shipping Code of the Russian Federation" (the creation of the state pilotage service): "the President of the Russian Federation, committees, Commission and factions of the state Duma, the Federation Council, the Government of the Russian Federation, Accounts chamber of the Russian Federation, Public chamber of the Russian Federation, the constitutional Court of the Russian Federation, legislative (representative) and higher Executive bodies of state power of subjects of the Russian Federation, the Russian tripartite Commission on regulation socially-labour relations for providing feedback, suggestions, and comments and at the conclusion of the Legal Department of the state Duma (p. 1, p. 52 minutes of the Board of the state Duma of the Russian Federation No. 258), and his inclusion in the approximate program of legislative work of the state Duma during the spring session of 2020" (ibid, part 3).
The bill was submitted to the state Duma by the Federation Council members S. G. Mitin, V. N. Pavlenko, L. Z. Talabaeva, T. A. Gigel 27 Jan 2020.
From the history
In the 60-ies of the last century on the basis of statistical data the global Maritime community has identified that of all the accidents of ships in the oceans, 90% takes place in the 50-mile coastal zone, and most of them in the Straits and narrows, of whom about 70% in ports and approaches to them. Considering the danger of Maritime accidents for the environment, the IMO urged governments of coastal States to establish mandatory pilotage in the most dangerous regions in their territorial waters.
Sea countries on 27 November 1968 and on the 4th the IMO Assembly adopted Resolution A. 159 (ES.IV) recommending to provide for compulsory pilotage as the most effective measure for ensuring safety in the most dangerous shipping areas. On November 19, 1981 on the 12 th, the IMO Assembly adopted Resolution A. 485: "Training, qualification and operation of Maritime pilotage, except pilotage on the open sea", which was revised and adopted at the 23rd Assembly of IMO on 5 December 2003 as Resolution A. 960. Considering the special environmental vulnerability of the Baltic sea, 4 December 2013 to the 28th IMO Assembly adopted Resolution A. 1081: "recommendations for the use of properly qualified pilots on the open sea when sailing in the Baltic sea", which replaced Resolution A. 480(XII).
From this it is clear that in international Maritime law to regulate pilot activities in very small quantities, relative to the total volume of relations connected with the international merchant shipping, is given quite a lot attention. All coastal States in the laws governing Maritime activities, a significant place pay the rules ensure the safe pilotage of ships in its internal waters including the activities of pilot organizations. While almost all coastal States have legislated in the field of pilot activities of a monopoly of either the state or national pilot organization operating on non-commercial principles.
Despite the fact that the protection of the environment concerning Maritime transport is governed by international legal, within the boundaries of the state security of merchant shipping is governed primarily by national law. As very aptly put by one of the Vice-presidents of the European Maritime pilots Association (EMPA) in 2011: "the Court's only order and pay for the work of the pilot and beneficiary pilotage services in General is the state and its people." In Russia the monopoly of the state on a pilot activity was destroyed during the perestroika years, and in 2005 there were private pilotage companies and in some ports pilotage was launched on competitive terms.
The necessity of the bill
The concept of the bill is to create a unified state pilotage service. Insufficient and outdated legal regulation pilot activities pilot allows private companies to operate on a commercial basis in the most profitable sectors, pilotage services and to obtain, according to my calculations, almost half of the gross pilotage of the country, which they can dispose at their own discretion and many of whom (500 million rubles) annually derive from the scope of the pilot provision. In my opinion, this leads eventually to degradation of the entire system of pilot schemes in the country.
Regulation of pilotage in the legislation can not provide adequate state oversight and monitoring of pilot activities. Almost all normative legal acts reglamentary only the activities of Maritime pilot and not reglamentary the process of pilotage, being an inalienable part of the activity "pilot organization". No KTM of the Russian Federation, nor in the subordinate legislation have not been regulated features of pilot organizations in terms of their facilities and equipment in accordance with the purposes of pilotage specified in article 86 of the Russian KTM.
It's a whole layer of technical and legal standards, including requirements for the special pilot boats (including techniques for working on them and training crews) and other means of delivery pilots (helicopters, hovercraft, additional equipment pilot boats), which are currently used, but is not regulated. Refers to this and to ensure safety in delivery/withdrawal of the pilot from the vessel in any weather conditions allowed, which is also not regulated.
The semantic content used in the bill of the term "pilotage organisation" (same as legal) is significantly different from the term "organization, which employee is the pilot exercising pilotage of the ship" approach to pilotage. In almost all Maritime countries pilotage is regulated by a separate law, and to pilot organizations, which have pilotage, as a rule, is the only activity, there are special requirements. This applies also to the control over the collection and the disbursement pilotage that is complicated in those institutions where the main activity is some other economic activity.
In accordance with the rules of the Russian Federation pilotage is performed by sea pilots (article 85), and nowhere in the KTM is not directly said that pilotage is pilotage organizations. However, in the case of guilt of improper pilotage the pilot can only lose a pilot certificate (article 102), and liability for damages imposed on the organization by which employee is a pilot (articles 103-105). Neither article 87 of the Russian KTM delimiting the Maritime pilot, nor any other articles of KTM do not say directly that the pilot must be an employee of some organization. Only of clause 5, article 87 KTM indirectly implies that the pilot is performing pilotage, it is not an independent entity, and must be an employee of some organization. Pilotage dues from ships using pilotage services, is also charged not pilots engaged in pilotage and organizations (article 106 CMW, Art. 19 of the law on sea ports of Ukraine № 261-FZ), and state supervision is carried out to organisations engaged in pilotage (article 88), however, the requirements for such organizations, in fact, no KTM of the Russian Federation, nor in the subordinate legislation.
Thus, in accordance with applicable law, on the one hand, pilotage is carried out by marine pilots, who are unable to charge for their services, and with another – pilotage is carried out by legal entities and their service in the sea port, which is billed as one of the mandatory port fees. But KTM of the Russian Federation does not contain a clarification: neither the legal status of pilot organizations or the relationship of pilots with such organizations that go beyond ordinary relations of employers and employees regulated by the labour code. Probably the 6th head of the KTM should be called "Sea pilotage", as in many Maritime countries, but it is not in the title and in the content of this Chapter, a change which is now a luxury for 20 years, since 1999, even not regulated the activities of the "pilot associations".
Furthermore, the lack of regulation and choice is the basis of corruption risks. Selection of pilot organizations in the port generally depends on the agents and where there is competition, the agents are precisely large vessels, as a rule, make it in favor of private pilotage companies. It is obvious that the establishment of the state pilotage service of Russia, when the expenditure of the pilotage will be controlled by the state and will take the need to solve the problems of the existing competition informal methods, will completely eliminate such corruption risks.
The current legislation does not regulate remote pilotage, which is used in the area of compulsory pilotage in difficult weather conditions. It has long been settled in many Maritime countries of the world and demands the same in our country as it is without legal regulation. Used remote pilotage in difficult weather conditions, "leading method" in Soviet times, but then it allowed compulsory regulations at the port, although it had not been resolved.
Currently remote transaction is in violation of the law (part 3 of article 11.7 of the administrative code), which does not include the absence of a pilot on the ship during pilotage (in accordance with clause 3, clause 14 of the Regulations on Maritime pilots during the pilotage the pilot shall continuously monitor the location of the ship, which means his presence on the ship), and is not settled even as it was in the USSR. In connection with this bill instead of the term in the current KTM of the Russian Federation: the captain can "take the ship to the pilot", is the term captain can "take advantage of pilotage," which more accurately reflects the essence of legal relations in the process of pilotage.
Also in connection with the necessity of securing legal provisions for remote pilotage the bill proposes to Supplement the position of the Russian KTM that "...Arrived on the ship the pilot shall present the master of the vessel a pilot certificate", the phrase that "the pilot outside of the vessel shall notify the captain of the vessel data contained in its pilot identity". Before the pilot, carrying out the transaction remotely, there was no obligation to inform the captain of the ship the details of your pilot certificate, although the pilot arrived at the ship, the duty to identify themselves was. Sending the bill to the necessity of adopting a new normative act "Rules pilotage", – governing the process of pilotage, which is not regulated, it contradicts the current legislation allows to regulate remote pilotage and to eliminate other defects.
In the current legislation there are no provisions that allow the transportation Ministry to fully monitor the activities of private pilotage companies. This suggests that the legal regulation of the provision of pilotage services in our seaports is not sufficient to ensure state supervision and control generally for the implementation of the pilotage. The uncertainties, inconsistencies and legal gaps in the legal regulation of pilot activities, some of which are contained in the rules of the Russian Federation since its adoption in 1999, under existing conditions, is really possible only with the adoption of the bill, which eliminates all the contradictions and allows its adoption to establish strict state control over pilotage in all ports. Eliminate all legal gaps without amending the rules of the Russian Federation about creation of the state pilotage service while maintaining a private business in the sphere of a pilot provision of the courts would require a huge number of amendments to existing legal acts, including the civil law, with no guarantee of success.
Market in the Netherlands, where a non-profit monopoly pilot service operating in all ports of the country, the regulation has required over thousands of pages of laws and regulations. In the market of Finland, where the state pilotage organization distributes pilotage dues in ports of profitable (10%) subsidy on pilotage in the ports losing (90%), the decision on its establishment was adopted after conducting several studies. The working group, which conducted the research, the final report expressed the view that "changing the current model based on membership of the state one company at a model with multiple providers of pilotage services operating in market conditions will lead to a stressful situation in the field of official control of the pilot activities to ensure the safety of pilotage services." "There are no legal obstacles to the opening of the market for guide services, but there are a fair number of problems from the point of view of its practical implementation in Finland". And who do we have to do this the legal regulation of the private array "pilot business" and why?!
Abroad there are also state and non-state pilotage organizations, but in world practice there are no private pilotage companies engaged in pilotage in order to obtain benefits. The difference is not determined by form of ownership organization, and the degree of independence of the pilot the choice of solutions in the boundary conditions (weather, sediment) pilotage: in favor of the safety of navigation or for the benefit of commercial gain.
IMO resolution A. 159 (ES.IV), which is based on the obligation of the state to organize a pilot security at the seaports, does not contain mandatory requirements to the system of pilotage service, however, it States on the need to organize in the States-participants of this system the best and most effective way. Acts of UN specialized agencies, which include the resolutions and recommendations of IMO are considered as a source of international law. The IMO is responsible for regulation at the global level, issues of Maritime safety and environmental protection, and Russia, as a member of IMO, has pledged to implement its resolutions and recommendations.
International legal act of higher legal force is the United Nations Convention on the law of the sea 1982, part XII which is dedicated to the protection and preservation of the marine environment and our internal sea waters. In particular, article 192 establishes the obligation of States to protect and preserve the marine environment, article 235 imposes on States fulfilling their international obligations concerning the protection and preservation of the marine environment for which they are responsible in accordance with international law, and article 218 and 219 talking about the fact that the jurisdiction of the port state without affecting other matters relating to the activities of the vessel, is connected exclusively with the preservation and protection of the marine environment.
This Resolution IMO, like many other legal decisions of international organisations concerning the external activities of the state, is not and cannot be an imperative. But ultimately, relying on the voluntary consent of the parties of these organizations, it is the state's obligation and the obligation evidenced by its implementation in the Maritime legislation of the USSR, which sprouted in the legislation of Russia.
How to best organize the activities of pilotage services in areas where pilotage is a separate big topic, and here, so as not to "reinvent the wheel", you can use the world experience of sea countries (mainly the market), the right which has long been resolved disputed issues of the state monopoly on the pilot activities. And, of course, this experience would not advise to ensure the profitability of a small number of "pilot business" in a cost-effective ports due to the subsidizing by the state pilotage provision in dozens of unprofitable ports.
The Responsibility Of Russia
In accordance with the Constitution of the Russian Federation published on its basis with laws and international treaties, it is the state Russia ensures the safety of navigation in its territorial waters, is responsible for the organization of pilotage in all ports of the country, including "unprofitable", before the international Maritime community and has a peremptory right to regulate them in a pilot activity.
In 2012, the Ministry of transport of Russia has prepared a bill creating a state pilotage service. In the same year, the Ministry of transport has received a positive approval of all the agencies concerned except the Ministry of economic development and FAS, the process of negotiation which went from 2012 to 2014. In 2014, the bill with the Memorandum of agreement Ministry of economic development and the FAS have been directed to the Government, but had lain there without moving for four years, and in 2018 was returned to the Ministry of transport.
The President of the country Vladimir Putin the decree № 618 on public policies for promotion of competition agreed to consider actively promoting the development of competition, the priority of the authorities of the Russian Federation. However, you must keep in mind that the President has always emphasized the need for a reasonable balance between freedom of the competitive market in the field of small and medium enterprises and strict government regulation of the activities of organizations in the field of national security. In connection with the reform of control and Supervisory activities of the President was urged not to go to extremes: "no less to control the business, not to weaken control. They are both unacceptable."
In addition, the establishment of public service "in a competitive product market" pilotage services does not contain a violation, because there is no market pilot services. Of the 67 sea ports pilotage organizations provide pilotage services on competitive terms only in a dozen ports, and in others they operate as a monopoly for hundreds of years.
The so-called market for pilotage services in the ports covers about 10% of their total number and is not going to expand. In "profitable" ports and terminals, where the monopoly are private pilotage companies, government pilots do not allow their operators to break the monopoly in the ports, where the FSUE "Rosmorport" (more than 50), none of the traders and trying.
Not contrary to the bill and the decree of the President of the Russian Federation from July, 23rd, 2003 № 824 "On measures for conducting administrative reform in 2003-2004", which identified priority directions of administrative reform including the development of a system of self-regulatory organizations. At the mercy of self-regulation around the world have given a vast sphere of activity that are difficult to regulate "on top" except when it concerns issues of national security. We have the same in the provision of pilotage services in General there is no market economy (only 10% of ports where there is competition pilot organizations), and the more extensive the market which should be left to self-regulation.
The introduction of self-regulation in pilot support does not solve the problem of improving the state function of the organization ensure a stable pilot in all sea ports of the country, including the Arctic unprofitable, and the problem of social protection pilots. The owners have repeatedly appealed to the Ministry of transport for support of its law on SRO and not finding her, initiated the introduction of the bill on the establishment of a pilot SRO (No. 639382-6) to the state Duma. This bill was soundly criticized by the Professor of SPb GU Sidorchenko V. F., and rejected by the state Duma on 8 November 2017.
As for the "presidential decree "About modification of the presidential decree of 20 March 2008 No. 369" who allegedly "GK "Rosatom" transferred "Hydrographic enterprise" with the functions of pilotage of vessels in the estuaries of the Siberian rivers (Yenisei, Khatanga, Bykovsky channel, Lena, and Kolyma) as well as in the waters of a number of Siberian sea ports". In paragraph 1 of the presidential Decree of April 1, 2019 No. 141 "About modification of the presidential Decree of 20 March 2008, No. 369" is said that in the "list of FSUEs, in respect of which... the state Corporation "Rosatom" carries out on behalf of the Russian Federation of powers of the owner of property (Annex No. 2), paragraph 107 included "Federal state unitary hydrographic enterprise, Saint-Petersburg", nothing more.
However, this rule does not preclude the creation of a state pilot organizations. First, the decree says nothing about the transfer of Rosatom functions for pilotage of vessels. Second, in accordance with the law of 27 December 2018 No. 525-FZ in item 4 of article 5 of the Russian KTM changes on the delegation of Rosatom authority for the implementation of the navigation-hydrographic support in the water area of the Northern sea route and the seaports on the coast of the Northern sea route water area and on approaches to them together with the Rosmorrechflot. It is obvious that the creation of a unified state pilotage organizations under the jurisdiction of Rosmorrechflot and providing pilotage in all sea ports of the country, will not require the creation of a parallel pilot organizations in the structure of SC "Rosatom" for multiple ports.
We often hear that competition leads to higher quality of pilotage services, and the consolidation of monopoly on pilotage services in one organization may lead to increase in rates of pilotage. Just the opposite. World experience shows that lowering the quality of pilotage services due to competition was one of the reasons for its prevention in the scope of a pilot security, and certainly not to speak about the positive impact of the market on the quality of pilotage services from the us, where "the market" only covers a dozen ports. And the idea that the creation of a unified state pilotage service may lead to increase in rates of pilotage, does not hold water because the state, having priority to the market economy, will be fully in control of their public service. Otherwise, you will need to recognize an absurd thing for a market state penny increase in pilotage is more important than the revenues from billions of dollars of revolutions of the port business.
It should be clear that funding for state pilot organizations provided only at the expense of pilotage paid by the shipowners (charterers of ships) in connection with the provision of pilotage services and has nothing to do with the budget funding. The gross pilotage in the country sufficient to cover all costs for the provision of pilotage services in all ports of the country in abundance.
As far as I know, private pilotage companies are not in the ownership of pilot boats, they deliver pilots on a rented craft, and this suggests that the creation of a unified state pilotage service does not require budgetary financing, even at the initial stage. At first the newly established state pilot service will cost the rental of boats within the framework of the received pilot collection, without recourse to the budget, and then of course they will be built. Thus, even if we create a public pilot service in the near future, we grow a few years to the level of equipment and state pilotage services our market neighbors: Finland, Sweden and even recently market of the Baltic countries. But we will never reach that level if we don't create it.
Is not required and compensation from Federal budget of the damage allegedly inflicted by private pilotage companies in connection with the termination of their activities as the provision of pilotage services is just one of many activities in the statutes of all providers of pilotage services, and most of them are not major.
You can argue that the bill contravenes the law on natural monopolies No. 147-FZ (clause 1 and clause 3, article 4) and law on protection of competition No. 135-FZ (paragraph 5 of part 1 of article 15 and clause 1, article 10). This is not so. That is another law to the same extent reflect market relations in the state, and that another form of economic relations reflects the role of the state in a market economy, therefore, the FAS has to be guided by the one and the other equally. Law No. 135-FZ protects competition in General, and law No. 147-FZ determines the policy of the state where the activities of organizations in the status of natural monopolies are more efficient than their competition. Obviously, if the constancy of pilotage of its costs for pilotage organizations in the port will be higher than one, the work one organization is more efficient and, therefore, a pilot port state activity relates to natural monopoly.
Protecting competition between pilot organizations in profitable ports (about 10%), unsuccessfully trying to adjust to the law No. 135-FZ remaining ports (90%), where there is no competition of pilot organizations, and is not engaged in the supervision and control over the natural monopolies in the sphere of a pilot provision of the courts, FAS, in fact, violate their obligations defined by the law No. 147-FZ.
In Sweden, which is an example of a market economy, recognized the Patriarch of the "regulatory guillotine", a pilot service of the state. In almost all Maritime countries of the world, including countries a purely market of the European Union, for example, Sweden, Norway, Finland, Greece, with a long tradition of market economy, government pilots private drive court private ports in the glory of a market economy. Pilots of these countries carry out pilotage as employees of public interest entities (public or private), but there is no private pilotage companies in our understanding.
The essence of the bill is to prevent market relations in a pilot and the establishment of the state pilotage service of Russia, which will include all pilots: those who work in private pilotage companies, and those who work within the divisions of state organizations.
The purpose of the bill is the elimination in the national security interests of the distortions, generated in the 90-ies as a result of reform of Maritime law. The establishment of the state pilot service will provide the necessary level of Maritime security, to raise the world level of technical equipment of pilot organizations in all sea ports of the country and to provide decent working conditions for the building of the Russian Maritime pilots, where the admission ticket is the diploma of the captain.