vs. ) CASE NO. 81-2083
WARWICK G. CAHILL, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 27-28 October 1981 at Tampa, Florida.
For Petitioner: William B. Ewers, Esquire
Michael I. Schwartz, Esquire General Counsel
For Respondent: C. Steven Yerrid, Esquire and
Nathaniel G.W. Pieper, Esquire Holland & Knight
By Administrative Complaint filed August 7, 1981, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Warwick G. Cahill as a deputy pilot in Tampa Bay. As grounds therefor, it is alleged that on the morning of February 6, 1981, while piloting the tug TUSKER pushing the barge LIQUILASSIE, Respondent failed to exercise the care required of a pilot in negotiating a turn alongside Gandy Bridge and as a result the barge LIQUILASSIE struck the Gandy Bridge located in Tampa Bay, Florida, thereby seriously damaging the bridge supports. It is specifically alleged Respondent failed to make allowance for wind and tide, proceeded at excess speed, failed to timely reduce speed, failed to commence the turn in a timely manner and failed to wait for slack water.
At the hearing five witnesses were called by Petitioner, five witnesses were called by Respondent and 31 exhibits were admitted into evidence. Exhibits 10, 16 and 24 are depositions and portions of depositions taken of the master and chief engineer of the tug TUSKER.
Proposed findings and conclusions submitted by the parties and not included below were not supported by competent evidence or were deemed immaterial to the results reached. Having considered all evidence presented, the following is submitted.
The tug TUSKER is a 120-foot LOA, 396 DWT riveted and steel hull motor vessel, single screw, single deck design with two Polar Atlas diesel engines each rated at 800 BP at 375 RPM. The TUSKER was built in Scotland in 1956, is registered in Canada and was designed and equipped for ocean towing. On February 6, 1981, her draft was 14'6". The propeller is 11'4" in diameter with an 11'3" pitch righthand and turns in a fixed Kort nozzle. The Kort nozzle can be described as an open-end cylinder or ring around the propeller one of whose functions is to keep towlines from becoming fouled in the propeller. The nozzle increases the propeller's thrust but reduces somewhat the effectiveness of the rudder.
The TUSKER is equipped with a single rudder, conventional type, mounted on centerline, aft of propeller and Kort nozzle. She is also equipped with a Donkin steering engine on which is superimposed a Sperry automatic pilot and remote controlled steering mechanism. The steering system is hydraulic and can be actuated electrically or mechanically. Normal mechanical operation is effected using the steering wheel on the bridge. Electric power is used to actuate the hydraulic system (which moves the rams which in turn move the rudder right or left) in the three other systems by which the vessel may be steered. One is automatic pilot. Another works off the automatic pilot system with the automatic pilot disengaged and the hydraulic system actuated by a remote control dial attached to a flexible cable. With this system the helmsman can move around the bridge carrying his steering mechanism in one hand. This mode operates on a self-synchronous follow-up system where the operator moves the dial on the remote control and a self-synchronous motor causes the hydraulic system to actuate the rudder to follow the dial. This is the system that was in operation at all times here relevant. The third system of steering, which is also electrically actuated, is a toggle switch, or joy stick, near the wheel which the helmsman moves left or right as he wants the rudder to go. When the lever is held to the right, that hydraulic system is actuated to move the rudder to the right until the lever is returned to neutral or a stop is reached. To move the rudder back to midships the lever is held left (if the rudder is right) until the rudder angle indicator shows the rudder to be back where desired.
The barge LIQUILASSIE is a converted tanker 307 feet long with a 60- foot beam and a cargo capacity of 5000 tons. This tank barge can be towed or pushed and is equipped with a notch in her stern to facilitate pushing. Upon entering Tampa Bay on the evening of 5 February 1981 the LIQUILASSIE was in ballast and was drawing six feet forward and nine feet aft. Saltwater was used for ballast.
The tug TUSKER and the tank barge LIQUILASSIE had departed Halifax, Nova Scotia, for Tampa and the trip was uneventful until arrival off Tampa on the evening of 5 February 1981. Shortly before reaching the sea buoy the tug changed position from towing the LIQUILASSIE on a 1200-foot line to the pushing mode with the tug's bow secured in the notch in the stern of the LIQUILASSIE.
Warwick G. Cahill, Respondent, a licensed Tampa Bay deputy pilot, boarded the TUSKER in Egmont Channel around 10:00 p.m. the evening of 5 February 1981 to pilot the tug and barge to Misener's Marine, a shipyard immediately south of Gandy Bridge on the east side of Tampa Bay.
At this time the weather was clear, the tide was rising, winds were southerly at ten knots or less and the seas were light. No significant change occurred in the weather from the time the pilot boarded the TUSKER until the LIQUILASSIE made contact with Gandy Bridge.
Pilot Cahill assumed the conn of the TUSKER with Captain Sanderson, the master of the tug, steering using the remote control hand-held dial. The engines were controlled directly from the bridge telegraphs. General discussion with Captain Sanderson revealed that the tug was single screw and that the flotilla combination TUSKER-LIQUILASSIE was slow to turn. At this time the rudder angle indicator was inoperative due to a burned out coil and no spare coil was on board. As a result the pilot could not look at the rudder angle indicator to ascertain the position of the rudder at any given moment. The pilot requested a steering light be installed on the bow of the barge so its rate of movement in a turn could be seen against the background lighting ashore. This was done.
Respondent was born in Australia and sailed on foreign flag ships from 1966 until 1970 when he came ashore in the United States and subsequently acquired American citizenship. He resumed maritime employment in 1976 sailing as an ordinary seaman on tugs operated by Gulf Coast Transit Company. He worked his way up from ordinary seaman to master, acquiring his master's license 25 June 1979. From this time until he was appointed a deputy pilot in Tampa Bay in November 1980, he served as master on five tugs operated by Gulf Coast Transit Company. All of these tugs are twin screw vessels varying from 175 gross tons to 435 gross tons. Respondent's master's license authorizes him to sail as master on U.S. vessels up to 1000 gross tons. When he was appointed deputy pilot Respondent was required, as were all other such appointees, to sail as an apprentice with a certified pilot for at least thirty days and thereafter be approved by the Tampa Bay Pilots Association to pilot vessels of not more than
23 feet draft and 500 feet length. After sixty days of piloting this class vessel, a deputy pilot, after approval by the Tampa Bay Pilots Association, is authorized to pilot vessels of not more than 23 feet draft and of unlimited length. Respondent was at this stage as a deputy pilot on 6 February 1981.
During the transit of the lower half of Tampa Bay the tug with 14 feet
6 inch draft and barge with the maximum draft of nine feet were navigated outside the channel and did not enter a cut channel until they reached Cut E channel. From the time the pilot came aboard, the tug was running at full speed with shaft RPM at about 110. At this propeller speed and draft of LIQUILASSIE, Captain Sanderson estimated the speed through the water at eight knots.
Because of the stiff and slow handling of the tug and barge combination Captain Sanderson suggested to Pilot Cahill before reaching Cut F that at the sharp turns in the channels ahead it might be necessary to slow the tug in order to negotiate these turns. Respondent replied that there was plenty
of water outside the channel going into Cut G from Cut F and that they would try that turn without slowing. The turn from Cut F to Cut G is a left turn slightly less than 90 degrees.
As he passed between buoys 5F and 6F the pilot directed the helmsman into a left turn which was negotiated without difficulty. The tug and barge settled on Cut G range.
The turn into Cut J from Cut G is a turn to the right of about 90 degrees. Here, the depth of the water outside the channel is sufficiently shallow that the TUSKER could ground if she got too far out of the channel. Upon approaching this turn Respondent had someone proceed to the bow of the LIQUILASSIE to stand by the anchors. He reduced speed to slow ahead approximately 1400 yards before reaching turn buoys 5G and 6G (Tr. p. 449) and ordered the helmsman to bring the flotilla to the right. The turn started a
little too soon or the flotilla turned too fast, and the helmsman was ordered to slow the rate of turn. As the flotilla straightened the pilot directed more right rudder as the barge and tug were moving into buoy 9J. The flotilla did not respond to the right rudder and the engines were kicked ahead to increase the turning moment. Buoy 9J passed down the side of the flotilla (or was run over by the tug) before the flotilla finally was straightened out in Cut J channel (Tr. p. 451).
While proceeding up Cut J channel at slow speed immediately following this incident, the captain directed the steering gear be checked to see if the rudder was answering the commands given through the remote control steering dial. This was the second time since the tug had assumed the pushing position off Tampa Bay that the steering was checked. The first time was shortly after the tug entered the notch when the captain directed the chief engineer to observe the rams on the rudder stock to see if the rudder was moving right and left as directed. On both occasions the rudder was observed by the chief engineer to move from full left to full right to amidships without apparent difficulty. On both occasions the chief engineer so reported to the captain.
After straightening out in Cut J the flotilla resumed full speed. At this time, and during most of the transit of Tampa Bay, the current was flooding, i.e., was pushing the vessel northward in the general direction of travel.
Misener's Marine is located north of Port Tampa on the east side of Tampa Bay and immediately south of the Causeway approach to Gandy Bridge. To enter Misener's Marine from the south, the preferred course, according to the unrebutted testimony of Respondent, is to continue past Cut K on the same course until the vessel is aligned with the draw span of Gandy Bridge, at which point course is changed to head for the draw span. Before reaching the draw span, course is changed to the right approximately 70 degrees to parallel the bridge as the channel into Misener's Marine is entered. The intended course, after making this turn, as indicated by Respondent on Exhibit 7, is parallel to and
200 yards south of Gandy Bridge.
As the flotilla passed Port Tampa the captain remarked that they were moving at a lively clip. Respondent responded that he would slow down before starting the turn. No effort was made to ensure a crew member was standing by to let go the anchors as had been done when approaching Cut J. When one-half mile from the bridge, as observed on the radar screen, the pilot ordered speed reduced to slow and the captain moved the telegraphs to dead slow.
At this time the flotilla was moving through the water at eight knots and over the ground at approximately 8.5 knots. The current in this part of the bay was setting northerly towards the bridge about 0.5 knots and it was approximately 40 minutes before high tide and slack water. High tide at Gandy Bridge on 6 February 1981 occurred at 3:07 a.m. (Exhibit 13).
When the radar range to the bridge was just over one-quarter mile Respondent directed the helmsman to bring the flotilla to the right. When the response to this command appeared slow and the flotilla was one-quarter mile from the bridge Respondent ordered hard right rudder. Although Respondent testified that at one-quarter mile distance from the' bridge he didn't believe the flotilla would make the turn without hitting the bridge, he ordered the engines ahead full to increase the turning force (Tr. p. 459). When the captain exclaimed they were going to hit the bridge the pilot ordered engines stopped, then full astern. The captain moved the engine controls as directed. As the engines were ordered reversed the pilot left the rudder right full until most of the way had been taken off the flotilla. During this time the bow of the barge continued to move right slowly. As the barge closed on the bridge the pilot shifted the rudder to left full shortly before the bow of the LIQUILASSIE made contact with the third and fourth bridge supports to the east of the center span. At the time of contact at approximately 2:25 a.m., February 6, 1981, the flotilla was making an estimated speed over the ground of approximately one knot. The bow of the barge went under the road span and fetched up on the third and fourth bridge supports to the east of the center span. Continued backing for a few minutes failed to free the barge from the bridge supports.
Respondent's witness, Captain John Graham, predicated his opinion that Respondent committed no error on the assumption that he commenced the turn into Misener's Marine at a distance of one-half mile from Gandy Bridge. His testimony (Tr. p. 337) was that "He [Respondent] ran out of options at a quarter-mile except for what he did: full astern. He was already hard starboard. There was no time--his other option was drop the anchor. That's too late." This assumption of distances from the bridge at which certain events occurred is not supported by the evidence and is in conflict with the findings made above, that the tug reduced speed when one-half mile from Gandy Bridge and the command to change course to the right was given to him just over one-quarter mile from the bridge. This finding is consistent with Respondent's testimony that he started the commencement of the turn approaching Gandy Bridge just before he reached the one-quarter mile point and increased to right full rudder at one-quarter mile. In his report of the accident, CG-2692 (Exhibit 15), Respondent also says that rudder was ordered hard right at a distance of one- quarter mile from the bridge.
Had Respondent ordered the engine full astern one-quarter mile from the bridge when he realized collision with the bridge was likely, the flotilla would have been stopped before hitting the bridge. Instead of ordering the engines full astern Respondent first ordered full ahead to increase the turning force. Only after he realized this added force would not turn the barge fast enough did he order the engines stopped, then full astern.
Local authorities were notified of the collision and ultimately the Highway Patrol regulated vehicular traffic over the damaged bridge. The damage to the bridge supports and barge was stipulated to be approximately $250,000.
Shortly after the collision, high tide at Gandy Bridge occurred and thereafter the tide began falling. The bow of the LIQUILASSIE was caught on the piling and it was feared that additional damage to the piling would result as the tide receded and more of the weight of the barge was placed on the piling.
The LIQUILASSIE collided with the bridge on a course approximately 30 degrees to the right of normal to the bridge and remained in that position until freed with the assistance of a passing tug at 5:15 a.m. After being freed from the bridge the tug was put on the port bow of the barge to help turn the LIQUILASSIE to the right some 90 degrees to enter Misener's Marine where the flotilla was moored.
Immediately after mooring, Coast Guard investigators, in company with the chief engineer and Respondent, checked the steering gear and found the rudder responded fully to the right and left in response to electrically generated commands from the bridge. The time to go from full left to full right was measured and found to be 25 seconds (Exhibit l) On February 12, 1981, while moored at Misener's Marine, the steering gear was again checked for operation from full right to full left and vise versa (approximately 35 degrees rudder angle) for four cycles and the average time from full right to full left was
24.25 seconds (Exhibit 3).
The radar on the TUSKER is mounted directly over the wheelhouse. While in the notch of the LIQUILASSIE the distance from the radar to the bow of the LIQUILASSIE would be approximately 110 yards. (307 feet, length of the LIQUILASSIE, plus the distance from the bow of the TUSKER to the radar. No evidence of this latter distance was presented.) Accordingly, when hard right rudder was ordered at a radar range from the bridge of one-quarter mile (500 yards) the bow of the LIQUILASSIE was less than 400 yards from the bridge. If the speed of the flotilla was six knots over the ground and the flotilla remained on course towards the bridge at this speed, 400 yards would be traversed in two minutes. For the bow of the flotilla to reach the intended tract 200 yards south of Gandy Bridge at this same speed over the ground would take just under one minute.
Respondent presented an expert witness who testified generally regarding hydraulic steering systems. He had never been aboard the TUSKER to observe the steering mechanism but opined that a leak between the high pressure and low pressure lines could cause what he termed hydraulic stall. This could occur if debris under the valve seat prevented a valve from seating properly and allowed some of the pressure to bleed off from high pressure to low pressure lines. This could reduce the pressure in the high pressure lines, reducing the pressure being applied to the ram to turn the rudder and thereby decrease the force available to turn the rudder. This could result in a rudder not reaching the full right position while the tug was underway when maximum force opposing a rudder turn exists, but allow the rudder to turn to full right or left when dockside in still water. Other witnesses had testified to movement of the large wheel in the wheelhouse while the ship was being steered with the portable steering dial. The expert opined that this movement of the wheel was indicative that oil was leaking from the high pressure lines through the wheel and could cause hydraulic stall. The chief engineer by deposition (Exhibit 16a) testified that in his experience a hydraulic steering system either worked or it didn't and he was unaware of any such system that would one time allow the rudder to go full right or left position and the next time, under the same command, the rudder would go only part way.
In the instructions for the Donkin steering mechanism attached to Chief Engineer Michael Ingham's deposition, which was admitted into evidence as Exhibit 16a-e, the Donkin manual, listed as Exhibit 13 to Ingham's deposition, states in part as follows:
Under the heading STARTING:
2. Put the change-over cock "B" on the bridge in power position. (When moving gear by local power
control the change-over cock should always be in power otherwise the bridge hand wheel will be driven round by the power pump as soon as the control valve is moved.)
Under the list of possible faults which may develop in the steering gear and How to locate them and their remedy, the same Exhibit 13 states:
Steering gear will not work in either Power, Hand or Local Control.
Shortage of oil causing air
locks. (See Charging Instructions)
Non-return valves (shuttle valves) on the telemotor side of the bridge unit not operating through being fouled with foreign matter or faulty. Drain oil out of bridge unit and examine valve.
Steering Gear works in power but not in hand.
Non return valves on hand pump side of bridge not seating through
foreign matter or otherwise faulty. Remove oil from bridge unit, dismantle and clean thoroughly.
Steering gear working erratically. Some- times going hardover, sometimes stopping short and sometimes moving on its own without the hand wheel being moved.
1. Buffer spring connecting the tiller to the hunting gear levers seized
or wrongly adjusted. Dismantle spring, clean the stays and make sure they are free to work in the guide plates, assemble and adjust so that all the nuts just come up to the plates as the shoulders on the stays touch the plates.
These instructions for the Donkin steering mechanism tend to support the testimony of the chief engineer that the steering mechanism doesn't work fully on one rudder change and only partly on another. No evidence was presented that the change-over cock on the bridge was in power position. On the other hand, no evidence was presented that someone had moved this lever from the position in which it was supposed to be set when the steering was placed in the power mode.
Prior to departure from Halifax the Canadian Coast Guard inspected the steering system, particularly the emergency steering, and found it working properly.
For the purpose of determining if the Respondent exercised prudence in piloting the TUSKER as the flotilla approached the Gandy Bridge, it is not essential that the steering be found to be operating correctly or erratically. If the latter, the Respondent was, or should have been, made aware of possible difficulties in making a sharp turn to the right as he had recently experienced that very problem while, making the turn from Cut G into Cut J.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Rules of admiralty are applicable to these proceedings. Board of Pilot Commissioners v. Lerro, 3 FALR 1120A (Final Order entered 3 April 1981). Broadly speaking, admiralty jurisdiction depends on the occurrence of an event on navigable waters. Causes of action arising out of maritime torts are within the jurisdiction of admiralty, and the substantive maritime law is applicable.
7 Fla. Jur. 2d divided by 7, Boats, Ships and Shipping. State courts are required to apply federal maritime law in a case within federal admiralty jurisdiction. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L.Ed.2d 339, 90 S.Ct. 1772 (1970).
As stated by the Court in Still v. Dixon, 337 So.2d 1033 (Fla. 2d DCA 1976):
And, it is maritime law, not state
law, that is the substantive law applied
in maritime torts accruing(sic) on navigable waters in this country, irrespective of whether the action is brought in a state
or federal court.
As a vessel of foreign (i.e., Canadian) registry the TUSKER was required to take a state licensed pilot when entering Tampa Bay on February 5, 1981.
A pilot is bound to exercise ordinary skill and care according to the rules of navigation and he is personally liable to the owner of a ship which suffers damages as a result of his failure to do so. In admiralty, a vessel is liable in rem for damages caused by the negligence of a compulsory pilot, but in an action at law for injuries so caused, neither the master nor the owner is liable, as in such a case the pilot cannot be deemed properly the servant of either of them. 7 Fla. Jur. 2d. divided by 7, Boats, Ships and Shipping.
Here, Cahill is charged with negligence in the piloting of the flotilla TUSKER-LIQUILASSIE which resulted in a collision with and damage to the Gandy Bridge. Section 310.101, Florida Statutes (1979), provides that disciplinary action may be taken against a licensed state pilot upon a finding of guilty of:
(5) Negligence, incompetence or misconduct in the performance of piloting duties.
Only negligence or incompetence is here charged in the Administrative Complaint.
Negligence has been defined in Lerro, supra, in which the board adopted the conclusions of law of the Hearing Officer, as follows:
Black's Law Dictionary, Fourth Edition, defines "negligence" as:
The omission to do something which a reasonable man, guided by those
ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a reasonable and prudent man would not do.
A licensed pilot can be considered an expert. Therefore, in matters involving pilotage of vessels it is reasonable to hold the pilot
to a higher degree of care than
an ordinary person. It is therefore concluded as a matter of law that the word "negligence" as used in Section 310.101(5), Florida Statutes (1979), establishes the following standard of care:
The omission to do something which a reasonable pilot, guided by those
ordinary considerations which ordinarily regulate piloting of vessels or the doing of something which a reasonable and prudent pilot would not do.
There is precedent for a standard of care for a pilot higher than that
of an ordinary person in both maritime literature and case law. * * *See, also, MARIBLANCA NAVEGACION, SA v.
PANAMA CANAL COMPANY, 298 F.2d 729
(5th CCA 1962).
* * *
Black's Law Dictionary defines "incompetency" as Lack of ability, legal qualifications, or fitness to discharge the required duty."
In admiralty law there is a presumption of negligence when a vessel runs into a fixed object attached to land. 7 Fla. Jur. divided by 24, Boats, Ships and Shipping, refers to this as the doctrine of res ipsa loquitur by which the collision itself supplies the inference of lack of due care in the absence of explanation by the defendant. This presumption has been followed for many
years in admiralty. State Road Dept. v. United States, 85 F.Supp. 489 (1949) aff'd 189 F.2d 591, cert. den. 342 U.S. 903, 96 L.Ed. 676, 72 S.Ct. 291;
American Oil Company M/V Lacon, 398 F.Supp. 1181 (DC Ga. 1973) aff'd 496 F.2d 1405 (5th CCA 1973).
Respondent attempts to rebut this presumption of negligence by evidence that the rudder did not respond to the commands given by the pilot. The operation of the rudder was checked twice by the chief engineer during the night of 5-6 February and found operating properly each time. The operation of the rudder was checked again by the Coast Guard investigators following the collision while the TUSKER was moored at Misener's Marine. Again, the steering mechanism worked properly. The second time the rudder operation was checked while the TUSKER was transiting Tampa Bay occurred immediately following the turn into Cut J while under the conn of Respondent. When this turn was approached speed was reduced and the turn started either too soon or with too much rudder. When the rate of turn was slowed and it became necessary to increase this rate of turn the flotilla did not respond in a timely fashion and Tampa Bay Lighted Buoy 9"F" was run over, or nearly so, before the flotilla was properly positioned in the channel. This experience, coupled with a report immediately following the incident that the rudder was responding to the commands to move full right, plus the information received from the master of
the TUSKER that the flotilla was sluggish in turn, should have put Respondent on notice that the flotilla might not respond rapidly to the turn into Misener's Marine from a position just south of Gandy Bridge.
With this knowledge and the knowledge that the current was flooding, Respondent departed Cut K at some 8.5 knots over the ground and maintained this speed until the bow of the LIQUILASSIE was less than 900 yards from Gandy Bridge. The order to commence the turn was given when the bow of the LIQUILASSIE was approximately 400 yards from Gandy Bridge and the current was setting the flotilla towards the bridge at 0.5 knots. When approaching the turn near Gandy Bridge no one was directed to proceed forward to stand by the anchors on the LIQUILASSIE and no communication was established to ensure a command to let go the anchors would be received and carried out. The course parallel to Gandy Bridge to enter Misener's Marine was some 70 degrees to the right of the course on which the flotilla approached the bridge. This 70-degree turn to the right to enter Misener's Marine was comparable to the turn into Cut J which had caused much difficulty one hour earlier.
Options available to the pilot to safely complete this maneuver were:
(a) to reduce speed sooner than he did which would have resulted in the flotilla moving slower as the turn was approached, thereby giving more time to make the turn; (b) start the turn long before the bow of the LIQUILASSIE was within 400 yards of the bridge; (c) wait approximately 40 minutes for slack water; and (d) ensure that someone was standing by to drop the anchor in case the flotilla risked collision with the bridge. With the current setting the flotilla towards the bridge it would have been simple and safe to start the turn a distance of at least one-half mile from the bridge. If this maneuver placed the flotilla inside (or south of) the desired track to Misener's Marine, Respondent could have stopped the engines and the current would have set the flotilla north to the desired track.
The burden is on Petitioner to establish by a preponderance of the evidence the facts upon which the allegations of negligence are based. Florida Department of Transportation v. JWC Corporation and Department of Environmental Regulation. 396 So.2d 778 (Fla. 1st DCA 1981). This "ultimate" burden always remains with the Petitioner. However, a burden of proof, in the sense of the
duty of providing evidence, passes from party to party as the case progresses even though the ultimate burden remains with the party asserting the affirmative. Id. at p. 787. When Petitioner presented evidence that the flotilla collided with Gandy Bridge the burden of proceeding shifted to Respondent to show that the collision occurred even though he had acted with prudence and due care under the circumstances while conning the TUSKER immediately prior to the collision.
The presumption of negligence which resulted from the collision with Gandy Bridge was not rebutted by Respondent. Even if the rudder was operating erratically, as contended by Respondent, this information is imputed to the pilot by the events which occurred while entering Cut J, and should have been taken into consideration by a prudent pilot approaching a turn near Gandy Bridge on a flood current.
If one, through lack of due care, places himself in a position of jeopardy he cannot then escape liability for injuries caused even though he exerts heroic, but unsuccessful, efforts to extricate himself from the position. By his failure to prepare for the possibility of a difficult turn when approaching Gandy Bridge, and to act accordingly, Respondent was negligent. By ordering the engines ahead full to increase the turning moment when heading for the bridge at a distance of less than one-fourth mile, Respondent virtually eliminated any chance of avoiding the collision if this maneuver didn't succeed. This, too, constitutes negligence.
Respondent contends that disciplinary action against a regulated professional cannot be based upon negligence alone. The basis for this contention is that if disciplinary action is authorized by Section 310.101, Florida Statutes, this statute unconstitutionally denies equal protection to Respondent because [it is alleged] other professions may not be disciplined for acts constituting simple negligence. While it is beyond the jurisdiction of this tribunal to rule upon the constitutionality of the statute, Respondent's position does not appear supported by the cases. In Bryan v. State Board of Medical Examiners of Fla., 398 So.2d 1354 (Fla. 1981), the Supreme Court upheld the constitutionality of Section 458.1201(1)(p), Florida Statutes, which authorizes the Board of Medical Examiners to revoke, suspend, or otherwise discipline the license of a physician found guilty of "immoral or unprofessional conduct or willful misconduct or negligence by the person in his capacity as a physician licensed by this chapter." Respondent is here charged with negligence while performing the functions of a pilot.
Respondent submitted proposed findings that Captain Sanderson refused to allow Respondent to steer the tug when he requested to do so and that Sanderson did not tell Respondent the rudder was already hard right before that order was given one-quarter mile from Gandy Bridge. Those facts are undisputed but are not significant and contributed nothing to the collision. Respondent had a light marking the bow of the LIQUILASSIE and he could readily observe this light move against the distant background to tell how fast the flotilla was turning. When commencing his turn at Gandy Bridge his order to the helm was to come right slowly. The helmsman's duty is to do just that--bring the flotilla slowly to the right, regardless of the amount of rudder required. If the bow is not turning at the speed desired by the pilot he should direct the helmsman to come right faster. To this command the helmsman can only add rudder until the rudder reaches the stop, at which time he should advise the pilot the rudder is right full. This was done by the captain who was the helmsman during this
maneuver. By having the captain on the wheel Respondent undoubtedly had the most qualified man on the TUSKER as helmsman. He was the individual most likely to know how much rudder would be required to come right slowly and the one most knowledgeable about the ship-handling characteristics of the flotilla.
From the foregoing it is concluded that Warwick J. Cahill failed to exercise the care required of a pilot on the morning of 6 February 1981 and, as a result, the TUSKER-LIQUILASSIE flotilla piloted by Cahill, collided with Gandy Bridge in Tampa Bay, Florida, causing approximately $250,000 damage to the bridge and to the bow of the tanker LIQUILASSIE. It is further concluded that these negligent acts demonstrate incompetence.
The negligence here found is not gross negligence or conduct demonstrating Respondent to be unfit to continue as a licensed State pilot. It is rather that negligence stemming from judgmental errors due to inexperience, particularly with single screw tugs, and failure to take those precautionary steps a more experienced pilot would have taken. It would be expected that Respondent acquired valuable experience as a result of this mishap and that he will be a better pilot and exercise greater prudence in the future as a result thereof. It is
RECOMMENDED that the license of Warwick G. Cahill, as a licensed deputy pilot, be suspended for a period of one hundred twenty (120) days.
ENTERED this 8th day of December, 1981, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1981.
William B. Ewers, Esquire 2170 Southeast 17th Street Suite 204
Michael I. Schwartz, Esquire General Counsel
C. Steven Yerrid, Esquire Nathaniel G. W. Pieper, Esquire Holland & Knight
