Respondent. )
held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 1, 1993, in Tampa, Florida. The issue for determination in this proceeding is whether disciplinary action should be taken against respondent's certification as a deputy pilot for violations of Section 310.101(5), Florida Statutes, and Rules 21SS-8.01(5) and 21SS-8.07(1)(d), Florida Administrative Code.
For Petitioner: W. B. Ewers, Esquire
For Respondent: J. Michael Shea, Esquire
By an Administrative Complaint filed on June 16, 1983, Respondent is charged with negligently navigating the vessel SUNNY MED outside the prescribed limits of the ship channel in Tampa Bay and striking a submerged barge, resulting in a casualty with damages to the SUNNY MED.
At the hearing, petitioner's Exhibits 1 and 2 were received into evidence.
No witnesses were presented on Petitioner's behalf.
The respondent testified on his own behalf and presented the testimony of James Johnson, the Office Engineer for the Tampa Port Authority; Captain John Leonardi, a tug captain in Tampa Bay for 71 years; Captain Lawrence Le Duc, a tug captain in Tampa Bay for 20 years; Captain Lambert Ware, a Tampa Bay harbor pilot for 13 years; David Rabren, a Tampa Bay pilot for 12 years; and Page Harmon, a tug captain in Tampa Bay.
Subsequent to the hearing, counsel for the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.
In January, 1984, counsel for the respondent moved to reopen this case to include in the record additional documentary evidence. The petitioner opposed the motion. Upon consideration of these pleadings, as well as the fact that the documentary evidence sought to be admitted was in existence almost five months prior to the final hearing, the "Motion to Reopen Case" is denied.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Respondent J. Michael Buffington is a Certified Deputy Pilot for the Port of Tampa and is licensed by the Board of Pilot Commissioners.
On January 16, 1983, respondent was on duty and was assigned to pilot the M/V SUNNY MED on its inbound transit of Tampa Bay. The SUNNY MED is a general cargo vessel of 4908.25 gross registered tonnage. It is 378 feet long and has a beam of 55 feet. The draft of the vessel, then in Ballast, was 5 feet forward, about 10 feet midship and 14 feet 6 inches aft.
Prior to boarding the vessel, respondent checked the board at the pilot's station for notices of hazards to navigation. Upon boarding the vessel at 0550 hours in Egmont Channel, respondent was told by the Captain that the draft of the SUNNY MED was less than 15 feet. At the time of boarding, the 3 to
5 foot seas were somewhat rough and winds were blowing at approximately 15-20 knots. The vessel was not handling well, was yawing considerably and was slow to respond to the rudder. Respondent had to correct the quartermaster on two or three occasions for "chasing the compass."
Respondent approached the Sunshine Skyway Bridge at 0800 hours. There was to be a shift change of crew at about the same time. The 0800 crew is typically the least experienced watch on a vessel and respondent, who had previously encountered difficulties with the quartermaster, was somewhat concerned about the abilities of the new shift Upon approaching the Sunshine Skyway Bridge, respondent observed the outbound DAVID D. ERWIN lining up to go under the bridge.
The Hendry Dredge Number 5, a pipeline dredge, was located in the vicinity of 9 B Cut. On previous occasions, the Dredge captain had requested pilots on board a vessel having a small draft to proceed around the dredge outside the channel if they were able to do so, so as not to interfere with the dredging operation. Respondent was aware of these prior requests, though no such request was made on January 16, 1983. In fact, the dredge was not in operation on this particular morning.
In order to avoid a close situation with the DAVID D. ERWIN in the A Cut, and being concerned with the abilities of the new watch, and also knowing that he would be going outside the channel later to go around the Hendry Dredge at B Cut, respondent left the dredged channel after passing through the Sunshine Skyway Bridge. Respondent then proceeded inbound parallel to the dredged
channel along the "Old Ship Channel," also called the "flats," in an area known to have 18 to 22 feet of water. It has been the custom and tradition for many years to vessels of small draft (less than 18 feet) to use the flats in this area of Tampa Bay. Indeed, it is necessary to leave the marked channel and traverse the flats in order to reach some of the ports in that area of Tampa Bay. Some 500 ships per month utilize the dredged channel area, and it is customary for the smaller draft vessels to give way to the larger draft vessels in the marked, deep draft channel.
As respondent was travelling inbound in the Old Ship Channel near the Hendry Dredge, he was aware of the M/V BERGO travelling outbound and the MARINE FLORIDIAN travelling inbound in the dredged channel. The captains of these two vessels were having radio discussions as to where they would meet, and respondent was listening to the discussions. They were attempting to time their arrival in between the Hendry Dredge Number 5 and the turn into C Cut from B Cut so that they could negotiate their passing in a spot other than a turn in the channel or the location of the dredging equipment. Both the BERGO and the MARINE FLORIDIAN are between 80 and 100 feet wide, were heavily laden at the time, and their drafts were between 32 feet and 33 feet 6 inches. The dredged channel can handle a maximum draft of 34 feet, and is approximately 400 feet wide in this particular area. The two vessels had only about 6 inches of water beneath them and the BERGO was "crabbing" due to the current.
Respondent made the decision to remain outside the dredged channel as the two loaded vessels negotiated their meeting and passing. He knew he had adequate water beneath him and he felt this was the safest and most prudent course of action to follow. Both the captain and the BERGO and the captain of the MARINE FLORIDIAN agreed that it was wise and prudent for respondent to stay out of the dredged channel at that time, though neither had requested respondent to do so.
As the SUNNY MED proceeded outside but parallel to the dredged channel, it struck an uncharted and unmarked submerged barge, causing extensive damage to the SUNNY MED. The collision occurred approximately 1500 feet southwest of Buoy
1 D and about 200 feet outside of the marked channel. The barge, owned by the Hendry Corporation, was sunk in June of 1982 during a tropical storm. It was submerged in approximately 22 feet of water with 7 feet of water covering it from visibility. No Notice to Mariners advising of this obstruction had been issued. Mishap reports filed by the Hendry Corporation with the United States Army Corps of Engineers in July of 1992 stated that the sunken stern nipple barge was recovered and salvaged in July 1982. While the respondent knew that the Hendry Corporation had lost some equipment in the tropical storm occurring in June of 1982, he was not aware that any vessel had sunk.
CONCLUSIONS OF LAW
The Board of Pilot Commissioners has the authority to discipline a certified deputy pilot found guilty of negligence in the performance of piloting duties. Section 310.101(5), Florida Statutes. According to the Board's rules, an example of an act
"which may constitute a violation may include. . .
. . .
(d) Failure to navigate within the prescribed limits of a channel, and a casualty
results .. . Rule 21SS-8.07(1)(d), Florida Administrative Code.
In order to prove respondent's guilt of negligence, petitioner relies solely upon the established fact that respondent's vessel struck an object while navigating outside the limits of a channel. No further facts or evidence were offered by the petitioner. Instead, petitioner urges that two presumptions attach the existence of the casualty, thus shifting the burden to the respondent to proceed and prove that he was not negligent in this incident.
The first presumption relied upon by the petitioner is the presumption of fault that arises against a moving vessel which strikes a stationary object. A review of the case law clearly reveals that such a presumption of fault only attaches when the moving vessel strikes a known or charted fixed object, such as a dock, pier, bridge or navigational aid. The presumption of fault has not and should not be applied in a case where the stationary object is unknown, uncharted, unmarked, submerged and not visible. Here, the submerged barge struck by the SUNNY MED was covered by approximately seven feet of water and was not visible. Its presence was not marked, was not part of local knowledge and was not recorded in a Notice to Mariners. The existence of this unmarked, unnoticed artificial obstruction in the navigable waters of Tampa Bay cannot form the sole basis for a presumption of negligence against the respondent.
The petitioner next urges that respondent's navigation of the SUNNY MED outside the prescribed limits of the channel creates a presumption of negligence. For this proposition, petitioner relies upon Rule 21SS-8.07(1)(d), cited above, as well as the case law holding that a vessel which leaves the channel does so at its own peril. The Rule itself creates no presumption of negligence. It merely states an example of what could be negligent conduct if the pilot does not exercise the reasonable and prudent care that is required. Failure to navigate within the prescribed channel may also, under the Rule, constitute an example of misconduct, inattention to duty, incompetence or willful violation of a law or regulation. The pertinent inquiry is whether the pilot acted in a reasonable and prudent manner using due care. As held in the case of Board of Pilot Commissioners v Lerro, 3 FALR 1120A (Final Order, April 3, 1981), negligence is defined as:
The omission to do something which a reason- able pilot, guided by those ordinary consider- ations which ordinarily regulate piloting of vessels would do, or the doing of something which a reasonable and prudent pilot would
not do.
In this case, the petitioner has failed to demonstrate that the respondent was negligent in navigating his vessel outside the deep draft channel or in striking the submerged barge. There has been no proof that respondent had any knowledge of the existence of the submerged barge or that it was not otherwise safe and prudent for the respondent to remain outside the marked channel on this particular occasion. Instead, the evidence presented at the hearing by the respondent and his witnesses establishes that it was wise, reasonable and prudent for respondent to leave the channel after passing under the Sunshine Skyway Bridge and to remain outside pending the passage of the BERGO and the MARINE FLORIDIAN. Respondent knew the "Old Ship Channel" or "flats" contained sufficient water to support his less than 15 foot draft vessel. He knew that that area had traditionally been used for navigation by shallow draft vessels. The SUNNY MED was a poor handling vessel, with an
unpredictable response. He was concerned with the abilities of the crew before approaching the Skyway Bridge and knew the shift would be changing to an even more inexperienced crew. The existence of the Hendry Dredge Number 5 and the pending passage of two large, heavily laden vessels in the deep draft channel were additional causes for concern. While it may not have been absolutely necessary for safety purposes for respondent to remain outside the channel, it cannot be concluded that respondent's decision to do so was negligent or constituted an act which a reasonable and prudent pilot would not do.
In disciplinary proceedings, the burden is upon the regulatory agency to establish the facts upon which its allegations of negligence are based. The only facts established by the petitioner are that respondent struck a submerged barge outside a deep dredged channel. The facts established by the respondent with regard to the depth of the water outside the channel, the custom and tradition of use of that water by vessels of shallow draft, the abilities of the crew and the SUNNY MED, the presence of the barge and two passing large vessels within the channel and the unknown and unmarked existence of the sunken barge clearly demonstrate that respondent was not negligent in his pilotage of the M/V SUNNY MED at the time of its collision with the submerged barge.
