STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1330
)
JOHN LERRO, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for final hearing before the undersigned Hearing Officer beginning on October 20, 1980, in Tampa, Florida, and concluding on October 24, 1980.
APPEARANCES
For Petitioner: Kenneth G. Oertel, Esquire
Lewis State Bank Building, Suite 646 Tallahassee, Florida 32301
For Respondent: C. Steven Yerrid, Esquire
Holland & Knight Post Office Box 1288
Tampa, Florida 33601
Kenneth E. Apgar, Esquire de la PARTE & BUTLER, P.A.
403 North Morgan Street, Suite 102 Tampa, Florida 33602
By Administrative Complaint dated June 18, 1980, Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent and his license as a deputy harbor pilot. The Administrative Complaint, in Paragraph 3, alleges that on May 9, 1980, while piloting the M/V SUMMIT VENTURE in Tampa Bay the Respondent failed to act in a prudent manner resulting in the collision between the SUMMIT VENTURE and the Sunshine Skyway Bridge, which actions on the part of the Respondent are alleged to demonstrate him negligent and incompetent in the performance of piloting duties in violation of Section 310.101, Florida Statutes (1979).
At the conclusion of Petitioner's case and again at the conclusion of the evidence, Respondent moved to dismiss the Administrative Complaint based upon the failure of Petitioner to carry its burden of proof. Ruling has been reserved on that motion, and Respondent was allowed to submit that motion in writing which Respondent did on October 31, 1980. That motion shall be disposed of by separate order.
Immediately prior to the beginning of the final hearing, and again during the course thereof, Respondent moved to dismiss the Administrative Complaint on the ground that Petitioner is without jurisdiction under the provisions of Chapter 310, Florida Statutes, to complain against Respondent for "negligence and incompetence" in violation of Section 310.101, Florida Statutes, and that to the extent said complaint rests upon negligence, it is a violation of Respondent's right to equal protection and due process of law. Ruling was also reserved on that motion and Respondent allowed to submit the same in writing, which Respondent did on October 31, 1980. That motion also shall be disposed of by separate order.
Having considered all testimony, evidence and argument of counsel, the Hearing Officer finds as follows:
FINDINGS OF FACT
At the time of the final hearing the parties stipulated in writing as set forth in Hearing Officer Exhibit #1 to certain stipulations of fact refer to certain times a day. The stipulation was entered into between the parties with the state understanding that those times of day are approximate with the exception of Paragraph 7 of Hearing Officer Exhibit #1 (Paragraph 1G of this order) wherein the time recited is deemed to be precise. Those stipulations of fact are set forth below:
John Eugene Lerro is a duly licensed deputy pilot pursuant to Chapter 310, Florida Statutes (1979).
On June 17, 1980, the pilotage license of Captain Lerro was suspended pursuant to an "emergency order" entered by the Department of Professional Regulation on the grounds that his continued pilotage constituted an immediate danger to the public health, safety, and welfare.
On May 9, 1980, Captain Lerro boarded the M/V SUMMIT VENTURE at approximately 6:30 a.m. for the purpose of piloting that vessel into the Port of Tampa Bay. Accompanying Captain Lerro, as an observer, was deputy pilot Bruce Atkins.
The M/V SUMMIT VENTURE is a 608 foot (LOA) Phosphate Rock Carrier registered in Monrovia, Liberia. On May 9, 1980, the said vessel was in ballast and drew nine feet six inches forward, twenty-one feet three inches aft.
Between 6:30 and 7:30 a.m. on May 9, 1980, the tide in Tampa Bay was at flood with an approximate current of 1 knot.
During that time period, maritime traffic in Tampa Bay was normal, with vessels proceeding both inbound and outbound.
As the M/V SUMMIT VENTURE proceeded into Tampa Bay, it passed abeam of Buoy 16 in Mullet Key Channel at 7:23 a.m.
A lookout (bosun) was ordered forward by Captain Lerro at 7:13
a.m.
At approximately 7:15 a.m. Captain Lerro ordered an anchor watch
(carpenter) posted on the bow.
Both the lookout and anchor watch arrived at the bow of the vessel at 7:23 a.m.
The M/V SUMMIT VENTURE collided with the Sunshine Skyway Bridge at approximately 7:34 a.m., May 9, 1980.
The M/V SUMMIT VENTURE was equipped with a Sperry Mark IV course recorder. This device, driven by a gyrocompass repeater motor, operates electrically from the ship's master gyrocompass. The recorder is equipped with a clock mechanism which drives a roll of graph paper under a pair of marking pens. Graduated time and heading increments are printed on the paper. The markings on this paper produce a permanent record of the ship's heading with respect to time.
The rudder, steering mechanism, engine telegraph and other related mechanical equipment of the M/V SUMMIT VENTURE were in proper working order and functioned normally on May 9, 1980.
The rudder of the M/V SUMMIT VENTURE was operated hydraulically and required approximately 22 seconds of time to travel from the hard starboard to hard port position.
For the past three and one-half years Respondent has been a certificated deputy pilot at the Port of Tampa, Florida, and at all times material hereto was duly licensed by Petitioner to perform piloting duties. Respondent is a graduate of the merchant marine Academy of the State of New York, and possess an unlimited Master's License for the ports of Tampa, Miami, and Fort Lauderdale. The Respondent served for one year as a pilot in the Panama Canal Zone prior to becoming a certificated deputy pilot at the Port of Tampa. Respondent is of above-average intelligence, mentally competent, and possesses the ability and judgment to make the types of decisions required of a certificated deputy pilot. Respondent has never had a any disciplinary action taken against his maritime licenses other than that which is the subject of this proceeding.
At midnight on May 8, 1980, the Respondent, John E. Lerro, (hereinafter referred to as Lerro) was asleep at the pilot's station at Egmont Key. He had been asleep since the night of May 8, 1980, after taking a ship outbound. Between 4:00 a.m. and 4:20 a.m. on May 9, 1980, Lerro was awakened by Steve Pimental, a Tampa Bay pilot boatman. After being awakened Lerro proceded to the pilot station's reading room, arriving there between 4:30 a.m. and 4:35 a.m. on May 9, 1980. While walking to the reading room Lerro could see Buoy #11 and noted that visibility was roughly two miles.
Upon arriving at the reading room Lerro instructed the pilot boatman to contact the M/V SUMMIT VENTURE to inquire about the weather. Lerro was scheduled to be transferred to the SUMMIT VENTURE for the purpose of piloting the vessel into Tampa Bay. Based on the SUMMIT VENTURE's reply, Lerro concluded that the visibility was not sufficient to start the vessel inbound to Tampa Bay. Lerro told the Captain of the SUMMIT VENTURE to stay where he was until further instructions. Approximately 30 to 45 minutes later Lerro contacted the tugboat DIXIE PROGRESS inquiring about the weather. The DIXIE PROGRESS, then located in Egmont Channel, reported visibility of approximately three miles. Lerro concluded that visibility was sufficient to transfer to the SUMMIT VENTURE and start her inbound.
Lerro and Bruce Atkins were then ferried to the lighthouse by Steve Pimental on the pilot boat TAMPA. Atkins was duly licensed to act as a deputy pilot on Tampa Bay. He had just become a new pilot and as such had to ride for thirty days with an existing pilot. May 9, 1980 was his thirtieth day. The next day he was scheduled to begin work as a deputy pilot on Tampa Bay. Lerro and Atkins transferred from the pilot boat TAMPA to the pilot boat EGMONT at the lighthouse between 5:35 a.m. and 5:45 a.m. on May 9, 1980. At approximately 6:30 a.m. Lerro and Atkins transferred from the EGMONT to the SUMMIT VENTURE near the sea buoy. As Atkins and Lerro boarded the SUMMIT VENTURE a light tanker named the PURE OIL piloted by John G. Schiffmacher, a licensed Tampa Bay pilot, started outbound from the Port of Tampa. At approximately that same time a 7,000 ton motor bulk carrier named THE GOOD SAILOR was passing outbound under the Sunshine Skyway Bridge piloted by Earl G. Evans, also a licensed Tampa Bay pilot.
Upon boarding the SUMMIT VENTURE Lerro introduced himself and Atkins to the Captain and told him that Atkins might take the con during the inbound trip. Lerro properly acquainted himself with the vessel's correct draft, radar equipment, engine speed, compass error, and other facts peculiar to that particular vessel. Lerro then took the con and the SUMMIT VENTURE began its inbound trip into Tampa Bay. After ordering the ship to proceed half-ahead to the north of the channel in order to avoid an outbound vessel grounded near Buoy #3, Lerro turned the con over to Atkins.
When the SUMMIT VENTURE passed Buoy #3 Lerro sighted the tugboard DIXIE PROGRESS by radar as it neared Buoy #8. Lerro did not have visual contact with the tugboat's running lights. Lerro radioed the DIXIE PROGRESS to make arrangements to overtake and pass her and was told that the tug was in a rain squall. When the DIXIE PROGRESS was halfway between Buoys #8 and #10 Lerro could visually see the range lights and correctly surmised that the rain squall had dissipated, or moved elsewhere.
As the SUMMIT VENTURE arrived at Buoy #8 Lerro visually sighted THE GOOD SAILOR which was just passing Buoy #13. By that sighting Lerro estimated that visibility was approximately three miles.
The SUMMIT VENTURE passed the lighthouse on Egmont Key at 7:06 a.m. At 7:13 a.m. the SUMMIT VENTURE passed Buoy #11 and Lerro noticed drizzling rain for the first time. Because of the drizzling rain Lerro instructed the ship's captain to place a lookout and anchor watch on the bow. The Captain of the SUMMIT VENTURE complied with Lerro's instructions.
As the SUMMIT VENTURE passed Buoy #14 the rain began to fall harder whereupon Lerro relieved Atkins of the con. At that time Lerro had visual contact with the next buoy, Buoy #16. In addition the radar on board the SUMMIT VENTURE was working very well, giving Lerro a clear picture of the buoys ahead. Lerro testified that it was the best radar with which he had ever worked. The radar mast was approximately 500' aft of the bow. Hereafter distances are radar ranges, not distance from the bow.
As the SUMMIT VENTURE passed Buoy #14 it made radar contact with the outbound PURE OIL being piloted by Schiffmacher. At that time Lerro contacted Schiffmacher by radio and ascertained that the PURE OIL was 2.3 miles east of the Sunshine Skyway Bridge outbound and that the SUMMIT VENTURE was 3 miles west of the same bridge inbound. Schiffmacher told Lerro that the PURE OIL was making 12 knots. Assuming constant speed thereafter Lerro could reasonably
expect that the PURE OIL would reach the Sunshine Skyway Bridge before the SUMMIT VENTURE.
At 7:23 a.m. the SUMMIT VENTURE passed Buoy #16. Lerro had noted no increase in rainfall between Buoys #14 and #16. Upon arriving at Buoy #16 Lerro was unable to visually sight Buoys #1A and #2A, but was able to make radar contact with them. Since he had a clear radar picture of the next buoys, #1A and #2A, he proceeded inbound.
When the SUMMIT VENTURE got within .2 miles of Buoys #1A and #2A the rainfall rate increased suddenly and dramatically as did the wind velocity. Because of the heavy rainfall radar contact with Buoys #1A and #2A was lost. The radar screen was solid yellow and no return could be distinguished on it. Lerro knew that the SUMMIT VENTURE was in extreme difficulty and immediately began reviewing his options.
Lerro's first thought was to turn hard to port. He immediately tried to contact Schiffmacher on the PURE OIL to determine that vessel's position outbound. He knew that if the PURE OIL had continued outbound from her last known position a turn hard to port would take the SUMMIT VENTURE across her path. Because the PURE OIL was light and therefore explosive Lerro was properly concerned about the catastrophic consequences of a collision between the two vessels. Lerro's attempt to communicate by radio with Schiffmacher was unsuccessful. The radio response he received to his call was garbled and he was unable to garner from it any useful information. Therefore, because he reasonably believed the PURE OIL to be outbound in his vicinity Lerro discarded the option of turning hard to port.
When the SUMMIT VENTURE was .1 mile from Buoys #1A and #2A radar contact was momentarily reestablished and Atkins, monitoring the radar, reported sighting the two buoys and further reported that the SUMMIT VENTURE was within the A Cut Channel. This radar contact was maintained for two sweeps of the radar and then lost permanently. At that point an option considered by Lerro was to go hard to starboard into a spoil area. He discarded that option because the depth of the spoil area is unknown and not marked on the charts and he did not wish to expose the vessel broadside to the wind with the potential effect that would have on the control of the vessel. Lerro was concerned that such a turn would result in a collision with the bridge.
In addition to the options of going port and starboard, Lerro considered stopping the vessel by reversing the engines and dropping anchor. He discarded that option because he did not think the ship could stop under control before it hit the bridge.
Seconds after Atkins reported radar contact on the buoys at .1 mile, the bow lookout reported a buoy on the starboard bow. That buoy was 1A or 2A and probably 2A. It was not positively identified by the bow lookout. Having discarded the above three options Lerro waited no more than 15 seconds after the bow lookout reported "buoy starboard bow" and started a turn to port to the next course which he thought would successfully bring the SUMMIT VENTURE underneath the Sunshine Skyway Bridge. A normal turn was made using port 10 degrees rudder. Lerro made a normal turn from a late turning point because on the trip up the Bay the prevailing wind had been from the southwest which, during the turn, would push the vessel to port. Further, Lerro wanted to stay on the right side of the channel to clear Schiffmacher in the PURE OIL which Lerro believed to be outbound. During the turn Lerro maintained the ship's speed at half- ahead, approximately 11 knots, so as not to jeopardize control of the vessel in
the high wind. After completion of the turn Lerro changed the speed of the vessel from half-ahead to slow-ahead.
When Lerro saw the Sunshine Skyway Bridge he immediately realized he was not in the proper position in the channel and put the engines on double- full-astern while ordering both anchors dropped, and the helm hard to port. The port anchor was dropped but, through no fault of Lerro, the starboard anchor was not dropped. Lerro made visual contact with the Sunshine Skyway Bridge more than a ship's length from the bridge. At 7:34 a.m. the starboard bow of the SUMMIT VENTURE impacted the Sunshine Skyway Bridge. Within seconds after the SUMMIT VENTURE struck the bridge Lerro broadcast a mayday call over the radio to the Coast Guard. He then had the captain of the vessel get the crew on deck to look for survivors.
Prior to boarding the SUMMIT VENTURE Lerro obtained all information normally obtained concerning the weather conditions then existing and which he would confront during his transit into Tampa Bay. He reasonably concluded that the weather conditions were such that the SUMMIT VENTURE could successfully transit the Bay to its destination. The heavy storm that hit the SUMMIT VENTURE as it approached Buoys #1A and #2A was not reasonably foreseeable in its intensity. Several ships and smaller vessels on the Bay were also caught unaware by the sudden and intense storm.
Captain Earl G. Evans, a Tampa Bay pilot for twenty-three years, was piloting the vessel THE GOOD SAILOR outbound between the Sunshine Skyway Bridge and the sea buoy. When THE GOOD SAILOR was in the vicinity of Buoy #10 off Egmont Key heading into the direction from which the storm came, Captain Evans was hit unexpectedly by the storm. According to his testimony he had no warning that the storm was coming until it was actually upon him and his visibility was reduced to zero. He also lost the use of his radar because of the rain clutter. Captain Evans reported that when the storm hit his ship there was an explosion sounding like the firing of a high powered rifle in a closed room which occurred in the wheel house of THE GOOD SAILOR. He assumed the explosion was caused by a lighting strike, though he was not able to confirm that supposition.
The SUMMIT VENTURE's inbound transit on the morning of May 9, 1980 was normal with weather conditions commonly encountered and normal traffic on the Bay until the vessel reached a point in Mullet Key Channel .9 miles from the Sunshine Skyway Bridge, and .2 miles from the turning buoys #1A and #2A which mark the entrance to A Cut Channel. At that point the SUMMIT VENTURE and Lerro encountered a sudden, unexpected and intense storm which reduced visibility to zero. Prior to that storm the prevailing wind throughout the ships's transit had been from the southwest at 15 to 20 miles per hour. This caused Lerro to steer several degrees to the right of the normal couse in Mullet Key Channel to compensate for the effect of the wind on the vessel which was setting the SUMMIT VENTURE to the north. At the onset of the storm the wind velocity rapidly increased to approximately 50 to 60 miles per hour and possibly reached 70 miles per hour. Between 7:00 a.m. and 8:00 a.m. on the morning of May 9, 1980 the prevailing wind direction shifted from predominantly southwest through west to northwest.
Several witnesses for Petitioner who experienced the storm pertinent to this proceeding estimated that the winds from the storm were westerly to northwesterly. One person testified that the winds at one time during the storm were predominantly out of the south. One of those witnesses, a bridge tender located on the Sunshine Skyway less than three nautical miles from the point of the collision, estimated the winds of the storm to be out of the northwest. The
manager of the toll booth located on the northern end of the Sunshine Skyway less than six nautical miles from the point of collision estimated the winds of the storm to be out of the west. A third witness of Petitioner was a commuter who came to a stop within several hundred feet of the point of collision on the Sunshine Skyway Bridge. He also estimated the winds to be out of the west. A fourth witness for Petitioner was a pilot boat captain inbound from Buoy #8 outside Egmont Key who testified that at one point during the storm, as he headed his vessel into the wind, the wind was predominantly out of the south.
Another witness for Petitioner, Earl G. Evans, a Tampa Bay pilot who was piloting THE GOOD SAILOR in the vicinity of Buoy #10 off the tip of Egmont Key, testified that he headed his ship into the wind and that by his compass the wind was out of 280 degrees. Evans and THE GOOD SAILOR were approximately five and one-half nautical miles from the point of collision at that time. In addition, a witness for the Respondent, Judge Mark McGarry, Circuit Judge for the Sixth Judicial Circuit, State of Florida, was camping at Fort DeSoto, approximately four nautical miles west of the point of collision at the time of the storm. He accurately estimated that the winds of the storm at his location were out of 330 degrees. It is therefore concluded as a matter of fact that at the time of the storm that struck the SUMMIT VENTURE approximately .9 miles from the Sunshine Skyway Bridge, the prevailing winds moved very quickly, in more than a few minutes, from the southwest to westerly to northwest a velocity of 50 to 60 miles per hours, perhaps reaching as high as 70 miles per hour.
Of the several expert pilots who testified on the question, all agree that when Lerro lost visibility and radar contact at the onset of the storm approximately .9 miles from the Sunshine Skyway Bridge, his choice to attempt to navigate through the bridge as opposed to turning port, starboard, or going
full-astern was a reasonable, prudent choice. Further, at least one expert pilot with twenty-three years experience testified that in his opinion Lerro's choice to attempt to navigate through the bridge was the only reasonable, prudent choice to make. The Petitioner's consultant, Ernest Clothier, an expert pilot with twenty-six years experience in New York Harbor, testified that in his opinion when Lerro lost radar contact with the buoys, he only had three viable options. In Clothier's opinion Lerro had the option of going hard port, hard starboard, or of going through the bridge. These are the same three options considered by Lerro. Clothier emphatically testified that going full-astern and attempting to stop the ship was not a viable option because in that attempt all control of the ship would have been lost, and Lerro would have had no idea where he was going or where he would end up. All of the other expert pilots testifying on the question agreed with Clothier that going full-astern was not a viable, reasonable, prudent option. Clothier further testified on behalf of Petitioner that he did not think Lerro's choice of the option of going through the bridge was wrong. Rather than being critical of Lerro's choice of options Clothier was critical of the manner in which Lerro executed what Clothier considered a valid option. Clothier felt that Lerro should have initiated his turn through the bridge approximately 600 feet earlier than the turn was initiated, and he was critical of Lerro for making a normal rate turn. In Clothier's opinion Lerro should have made a faster-than-normal rate turn. It is concluded as a matter of fact that upon losing visibility and radar contact in the storm Lerro had three reasonable options in trying to avoid an accident.
Those three options included turning hard port, turning hard starboard, and attempting to steer successfully through the bridge. The options chosen by Lerro, steering through the bridge, was a reasonable, prudent option. Further, the evidence does not establish that Lerro, in deciding to make a late, normal rate turn failed to do or consider those things which any reasonable, prudent pilot under similar circumstances would have done or considered. Neither does
the evidence establish that Lerro did or considered things which any reasonable, prudent pilot would not have done or considered under similar circumstances.
Petitioner presented the testimony of Anthony Suarez, a collision analyst who by discipline is a hydrodynamicist. Suarez presented several calculations he had made for the purpose of showing that the SUMMIT VENTURE, as it was steered by Lerro, could not have successfully navigated under the Sunshine Skyway Bridge. However, Suarez testified that his calculations were based on the assumption that the wind remained constantly astern of the SUMMIT VENTURE. He further testified that if in fact the wind was out of the southwest or the northwest his calculations would not be representative of the trajectory of the SUMMIT VENTURE in those conditions. Since it has been concluded as a matter of fact that the winds were initially out of the southwest, swinging to the northwest, the testimony of Suarez, with regard to his calculations projecting a trajectory over the ground of the SUMMIT VENTURE purporting to show that it could not have been steered safely beneath the Sunshine Skyway Bridge, is rejected for the purposes of this proceeding because of its failure to be based on the facts as they occurred.
As established by the testimony of the expert pilots appearing in this cause, the speeds maintained by Lerro on the SUMMIT VENTURE during her approach to the Sunshine Skyway Bridge were reasonable and prudent under the existing weather conditions. Slower speeds on the vessel would have risked control problems.
No evidence was presented in this proceeding from which it could be concluded as a matter of fact that Lerro lacks either the ability, legal qualifications, or fitness to discharge the duties of a pilot. Respondent's Exhibit #5 is a summary of marine casualties or accidents in the Port of Tampa between October 1, 1975 and October 2, 1980, involving the pilots of the Port of Tampa. The twenty-one pilots working the port during that time averaged six accidents. Lerro had seven accidents. No evidence was presented which would show that any of the accidents in which Lerro was involved caused significant damage or any injury. Lerro's record with regard to the number of accidents was about average for the pilots of the Port of Tampa. With regard to Lerro's past experience as a pilot, he was employed by the Panama Canal Company from January 6, 1976 to November 12, 1976. During that time he served as a pilot in training and, upon completion of the normal training period, as a vessel pilot with that agency's Marine Bureau. At no time during his employment with the Canal Company was any adverse or disciplinary action taken against him and none was pending at the time he voluntarily terminated his service with the company. He terminated his service in Panama to accept a better position as a pilot in the Port of Tampa. During the course of his employment with the Panama Canal Company Lerro was not involved in any marine accidents investigated by the Canal Zone Government Board of Local Inspectors, the local organ responsible for such investigations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this cause.
By an Administrative Complaint dated June 18, 1980, the Petitioner, Department of Professional Regulation, seeks to suspend, revoke, or take other disciplinary action against the Respondent and his license as a deputy harbor pilot. The Administrative Complaint alleges that Respondent has been " . . . guilty of negligence and incompetence in the performance of piloting duties in
violation of Section 310.101, Florida Statutes (1979)." The facts alleged to support that conclusion of Petitioner are contained in Paragraph 3 of the Administrative Complaint and are as follows:
On May 9, 1980 John Lerro boarded the Motor Vessel Summit Venture and proceeded to pilot that vessel into Tampa Bay, Florida. In the course of acting as pilot for the Motor Vessel Summit Venture John Lerro, encountered weather conditions which afforded him low visibility and subjected the Summit Venture to high winds. At approximately one mile west of Skyway Bridge in Tampa Bay, the weather conditions surrounding Summit
Venture deteriorated to the point that Lerro had no visibility and no means by which to safely navigate beneath the Skyway Bridge.
During this time John Lerro made no effort to halt the way of the Motor Vessel Summit Venture or otherwise act prudently to avoid a collision. Lerro attempted to navigate blindly through the weather and as a result of his failure to act in a prudent manner the Motor Vessel Summit Venture collided with the Skyway Bridge and caused great loss of life and property damage.
Section 310.101 Florida Statutes (1979) in subsection (5) provides that the State Board of Pilot Commissioners has the
. . . authority to discipline or suspend a licensed state pilot or certificated deputy pilot or to revoke the license or certificate of either, . . . who . . . has been adjudicated . . . guilty of
* * *
(5) Negligence, incompetence, or misconduct in the performance of piloting duties.
In this cause Petitioner seeks to take disciplinary action against Respondent on the first two grounds of negligence and incompetence. The Administrative Complaint contains no allegation of misconduct in the performance of piloting duties.
The words "negligence" and "incompetence" are not defined by statute, nor is the Hearing Officer aware of any interpretation of those words as used in Chapter 310, Florida Statutes by any court. In order to properly adjudge the actions of the Respondent in this cause it is necessary to determine the standard of care imposed on a licensed pilot by the word "negligence" as used in Chapter 310. It is similarly necessary to define the word "incompetence" as used, to determine whether Respondent is in violation of the statute in a manner sufficient to warrant penalization.
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 piloting of vessels it is reasonable to hold a 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 would do, 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 A. Parks, The Law of Tug, Tow, and Pilotage (1971). See also Mariblanca Navegacion, S.A. vs. Panama Canal Company, 298 F.2d 729, (5th Cir. 1962). Having articulated the standard of care imposed by the word "negligence" as used in the statute, its application will be discussed below.
Webster's New Collegiate Dictionary defines "incompetent" as: "1: lacking the qualities needed for effective action 2: not legally qualified 3: inadequate to or unsuitable for a particular purpose." Black's Law Dictionary, Fourth Edition defines "incompetency" as "Lack of ability, legal qualification, or fitness to discharge the required duty." As can readily be seen from the two foregoing definitions, the concept of incompetence is a separate and distinct concept from that of negligence. It is also readily apparent that the two definitions are quite similar. It is concluded as a matter of law, that the proper definition of "incompetence" as used in Section 310.101(5), Florida Statutes (1979) is that definition used in Black's Law Dictionary.
In applying the definition of incompetence to the acts of Respondent alleged in the Administrative Complaint it is further concluded as a matter of law that the factual allegations of the Administrative Complaint are directed to the concept of negligence and not the concept of incompetence as those two terms are used in Section 310.101(5) Florida Statutes (1979). There are no factual allegations in the Administrative Complaint purporting to demonstrate lack of ability, legal qualifications, or fitness to discharge his required duty on the part of Respondent. Rather, the factual allegations are directed toward showing that Respondent failed to meet the standard of care required of pilots in a particular factual situation, and in so failing, was negligent. Construed in their most liberal light neither the allegations of the Administrative Complaint nor the evidence presented in this proceeding established any facts from which it can be concluded as a matter of law that the Respondent lacks ability to be a pilot, the legal qualifications to be a pilot, or the fitness to discharge the duties required of a pilot. Indeed, the evidence presented establishes the converse, that Respondent has sufficient ability, is legally qualified, and is fit to discharge the duties of a pilot.
In determining whether Lerro was negligent in the performance of his duties as alleged it is necessary to look at the factual allegations of the Administrative Complaint and determine to what extent they were proven. Lerro's
actions, as proved by the evidence, must then be measured against the standard of negligence articulated in Paragraph 10 above.
Certainly the evidence establishes that on May 9, 1980, Lerro boarded the M/V SUMMIT VENTURE and piloted her into Tampa Bay. It is not disputed that he encountered weather conditions which afforded him low visibility and subjected the SUMMIT VENTURE to high winds. It is further not disputed that approximately one mile west of the Skyway Bridge in Tampa Bay the weather conditions deteriorated to the point Lerro had no visibility. Up to this point in the factual allegations contained in Paragraph 3 of the Administrative Complaint, there is no dispute.
The Administrative Complaint then alleges, with the implication of fault on the part of Lerro, that he had no means by which to safely navigate beneath the Skyway Bridge. It also alleges that he made no effort to halt the forward motion of the ship and that he attempted to navigate blindly through the weather colliding with the Skyway Bridge. Petitioner's own witnesses contradict the implications of those allegations. Petitioner's own witnesses testified that up to the point the storm hit, Lerro had done nothing wrong in the conduct of his duties as a pilot. Petitioner's primary expert witness further testified emphatically that for Lerro to have attempted to halt the way of the ship would have seriously risked loss of control and collision with the bridge and was not a viable option. That same witness for Petitioner testified that Lerro's only choices after the storm reduced visibility to zero and eliminated radar contact was to continue to navigate blindly through the weather and that the attempt to navigate beneath the bridge was a reasonable choice.
Thus, construing the Administrative Complaint strictly, the Petitioner's own evidence establishes that up to the point of the storm Lerro had properly performed his duties as a pilot, that he should not have attempted to halt the way of the vessel, and that his only choice was to navigate blindly through the existing weather which he found himself in though no fault of his own. When the facts established by this strict view of the Administrative Complaint are measured against the standard of care required of a pilot it must be concluded that Petitioner has failed to prove that Lerro's actions were negligent.
Even when one broadly construes the Administrative Complaint using the allegations that Lerro failed to "otherwise act prudently to avoid a collision" it must be concluded that Petitioner has failed to prove Lerro negligent. The most damaging evidence presented against Lerro by Petitioner is the testimony of Petitioner's expert pilot witness Clothier who strongly felt that Lerro should have made the turn in A Cut sooner and at a more rapid rate of turn. It is concluded, however, that Clothier's testimony, rather than establishing negligence on the part of Lerro, is simply the well-considered differing opinion of an expert with the luxury of time and hindsight. Clothier does not express the opinion that had the turn been made sooner and at a more rapid rate the bridge would not have been struck. Rather, it is his professional judgment that in deciding to attempt navigating through the bridge Lerro should have made the final turn in a different manner. As emphasized by the testimony of other expert pilots, some appearing on behalf of Petitioner, who did not quarrel with the manner in which Lerro made the turn, rather than demonstrating negligence on the part of Lerro, Clothier's testimony illustrates reasonable difference of professional opinion. With the further consideration that Lerro, of necessity, had to exercise his professional judgment in a very short period of time under the pressure of an emergency situation, the differing opinion of Clothier does not establish negligence on the part of Lerro.
Petitioner argues that the opinion of the expert pilots supporting the actions of Lerro should be tempered because they might be expected to speak favorably of the actions taken by a pilot whose conduct has been brought to question. First, it should be noted that nothing was presented in this cause to demonstrate prejudice or perjury on the part of the expert pilots testifying. Second, it is worthy to note that most of the expert pilots who testified that Lerro behaved in a prudent manner were witnesses of the Petitioner. They were not called as adverse or hostile witnesses and surely Petitioner believe them credible or they would not have been presented on behalf of Petitioner's case.
Petitioner argues that Lerro violated an Inland Rule which provides in part that:
Every vessel shall, in a fog, mist, falling snow, or heavy rainstorm, go at a moderate speed, having careful regard to the existing circumstances and conditions.
Inland Rules Article 16, Title 33 USC Section 192. This Inland Rule has been adopted as part of the Pilot Rules for Inland Waters in 33 CFR 80.13(a)(1).
Petitioner further argues that the courts have interpreted moderate speed to mean that speed to mean that speed at which a vessel may stop in one-half the distance of the existing visibility. See Union Oil Company of California vs. The Tugboat San Jacinto, 409 US 140 (1972). The evidence certainly establishes that at the time Lerro lost all visibility the vessel was traveling at a speed greater than that at which she could stop in half the distance of the visibility. Visibility being nonexistent, the only way Lerro could have complied with this rule was to bring the ship to a halt. That option was ruled out as a reasonable option by every expert pilot testifying in this cause, including Petitioner's primary expert, Clothier. Thus, Lerro's failure to adhere to this rule cannot be deemed negligence. Adherence to it was impossible.
Petitioner argues that in admiralty there is a rule of law known as The Pennsylvania Rule wherein it is held that if a vessel involved in a collision is in violation of a rule of the road the burden to show that the vessel was not at fault for the collision is on the vessel. The Pennsylvania,
86 US (19 WALL) 125 (1873). Petitioner argues a similar doctrine in admiralty wherein there is a presumption of fault applied against a pilot where the piloted vessel has struck a stationary object. This presumtion of fault, argues Petitioner, shifts the burden to Respondent to prove innocence. This cause is not one in admiralty. Rather, it is a license disciplinary proceeding arising in the State of Florida under the law of Florida. It is penal in nature and burden of proof is upon the regulatory body, Petitioner herein, seeking to discipline a licensee. Therefore, the rules of law argued by Petitioner which may be applicable in judicial proceedings to determine monetary liability for an accident are not applicable in this proceeding to the extent that those rules of law would require the shifting of the burden from that party in the prosecutorial role to that party being charged. The burden of proof is upon Petitioner to prove the allegations of the Administrative Complaint. Withers v. Metropolitan Dade County, 290 So.2d 573 (Fla. 3 DCA 1974); Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3 DCA 1975).
To the extent that the Findings of Fact proposed by the parties in this cause have not been adopted in this Recommended Order they have been deemed
to be not supported by competent substantial evidence of record or irrelevant to the determination of the issues in this cause.
It is concluded as a matter of law that Petitioner has failed to prove Respondent guilty of negligence or incompetence in violation of Section 310.101(5) Florida Statutes (1979).
Petitioner having failed to establish the allegations of the Administrative Complaint that Respondent was guilty of negligence and incompetence in the performance of his piloting duties on May 9, 1980, it is therefore RECOMMENDED that:
The Respondent, John Lerro, be found not guilty of negligence and incompetence and that the Administrative Complaint be DISMISSED.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1981.
CHRIS H. BENTLEY
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1981.
COPIES FURNISHED:
Kenneth G. Oertel, Esquire
Lewis State Bank Building, Suite 646 Tallahassee, Florida 32301
C. Steven Yerrid, Esquire Holland & Knight
Post Office Box 1288 Tampa, Florida 33601
Kenneth E. Apgar, Esquire de la PARTE & BUTLER, P.A.
Suite 102
403 North Morgan Street Tampa, Florida 33602
Michael Schwartz General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jan. 02, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 02, 1981 | Recommended Order | Petitioner failed to show Respondent negligent or incompetent in trying to bring his vessel under the bridge in heavy rain. |
