When a vessel’s insurer sought to hold a Massachusetts marine pilots association vicariously liable for the alleged navigational negligence of one of its member pilots, AP&S attorneys, Joshua S. Parks and Colten H. Erickson, relied on more than a century of maritime precedent to defend the association’s long-recognized immunity from such claims. After the district court dismissed the tort claims against the association at the pleading stage, AP&S successfully defended that ruling before the U.S. Court of Appeals for the First Circuit.
Resolving an issue of first impression in the First Circuit, under the Supreme Court’s decision in Guy v. Donald, 203 U.S. 399 (1906) (Holmes, J.), the court affirmed, holding that a pilots association may not be held vicariously liable for the navigational negligence of a member pilot unless the association controls the manner in which the pilot performs his navigational duties. Codan Forsikring A/S v. Bogus, No. 25-1770, ___ F.4th ___ (1st Cir. 2026) https://www.courtlistener.com/opinion/11053179/codan-forsikring-as-v-bogus/
The Challenge:
In May 2020, a 3,424-ton foreign-flagged research vessel allided with the New Bedford Hurricane Barrier during her departure passage from the Port of New Bedford under the direction of a compulsory state pilot. The vessel’s insurer paid more than $750,000 to resolve the U.S. Army Corps of Engineers’ claim and repair the vessel. It then brought suit, as subrogee, against both the pilot and Northeast Marine Pilots, Inc. (“Northeast Pilots”), the pilots association that, by operation of Massachusetts law and regulation, facilitates all compulsory pilotage services in Massachusetts Pilot District Three.
The insurer asserted negligence, indemnity, and contribution claims against Northeast Pilots on a theory of vicarious liability. To avoid Guy and its progeny, the insurer attempted to recast Northeast Pilots as an ordinary employer. It argued that Northeast Pilots is a closely held, for-profit corporation, rather than the voluntary, unincorporated association at issue in Guy and which was common in 1906 when the case was decided; that membership in Northeast Pilots is mandatory; that the pilot was an employee and shareholder who could not refuse assignments; and that vessels allegedly contract with and pay Northeast Pilots rather than the pilot.
On that basis, the insurer urged the courts to apply general maritime law’s multi-factor test for distinguishing employees from independent contractors: a fact-intensive inquiry that does not readily lend itself to dismissal at the Rule 12(b)(6) stage of litigation.
The Solution:
AP&S grounded its defense in Guy v. Donald, in which Justice Oliver Wendell Holmes penned the genesis of pilots associations’ immunity from vicarious liability. As Justice Holmes explained, even if one were to imagine “a pilot performing his duties within sight of the assembled association, he still would be sole master of his course. If all of his fellows passed a vote on the spot that he should change, and shouted it through a speaking trumpet, he would owe no duty to obey, but would be as free as before to do what he thought best.” AP&S traced more than a century of precedent applying Guy in courts across the country and argued that, for pilots associations, the ability to control the manner in which a member pilot navigates a vessel is a necessary element, not merely a factor, for vicarious liability to attach.
The team also elucidated how Massachusetts’ regulatory scheme confirms pilots’ traditional independence. In Massachusetts, state-appointed pilot commissioners—not Northeast Pilots—commission, regulate, and discipline pilots. Pilots’ navigational duties are prescribed by regulation, not by the pilots association. Pilots—and not pilots associations—must post bonds conditioned on the payment of damages accruing from their own negligence, and Massachusetts law expressly provides that a pilot “shall be liable for all damages accruing from his negligence, unskillfulness or unfaithfulness.”
Northeast Pilots, by contrast, is a creature of regulation. Its role is limited to ministerial, land-based functions that facilitate the provision of pilotage services: providing pilot boat services, staffing a dispatch office, and assigning pilots according to a fixed rotation over which it has no discretion.
Against that backdrop, AP&S emphasized that the insurer did not, and could not, plausibly allege that Northeast Pilots exercised any control over the manner in which the pilot navigated the vessel, as required by Guy. AP&S further showed that, under Guy’s progeny, a pilots association’s incorporation, and a pilot’s ownership share in it, are distinctions without a difference, as the rule applies without regard to organizational structure.
The U.S. District Court for the District of Massachusetts agreed and dismissed the negligence, indemnity, and contribution claims against Northeast Pilots, and the insurer took an interlocutory appeal. Joshua S. Parks argued the appeal, and Colten H. Erickson was on brief. The American Pilots’ Association filed an amicus brief in support of Northeast Pilots.
The Result:
The First Circuit affirmed, in a unanimous opinion penned by Circuit Judge Lynch, holding that, under well-settled federal maritime law, a pilots association is not liable for a member pilot’s actions in piloting a vessel unless the association exercises control over the pilot’s performance of his navigational duties. In so holding, the court:
- rejected the insurer’s invitation to apply the general employee/independent-contractor test, explaining that, whatever a pilot’s employment relationship with the association, a plaintiff must plausibly allege that the association controls the pilot’s performance of his navigational duties;
- declined to limit Guy to voluntary, unincorporated associations, concluding that allegations of employment, shareholder status, mandatory membership, corporate form, dispatching, and fee collection do not support an inference of navigational control required by Guy; and
- recognized that federal maritime law may look to state law to determine who controls pilots, concluding that Massachusetts’ regulatory scheme is consistent with pilots’ historic navigational independence.
The court likewise rejected the insurer’s analogies to law firms and hospitals, because pilotage “is a unique institution and must be judged as such,” and refused to permit the insurer to salvage an implausible claim through discovery to which it was not entitled.
For pilots associations and the broader maritime industry, the decision brings the First Circuit in line with the long-standing rule recognized by the Supreme Court, and carries Guy into the twenty-first century. It also confirms that such vicarious liability claims may be resolved at the pleading stage—without costly and burdensome discovery into a pilots association’s corporate structure. Simply put, under recent First Circuit precedent, the rule Justice Holmes pronounced in Guy more than a century ago remains good law.