STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1949

)

FRED F. ENNO, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

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 7 December 1982 at Tampa, Florida.

APPEARANCES

For Petitioner: William B. Ewers, Esquire

2170 South East 17th Street, Suite 204 Fort Lauderdale, Florida 33316

For Respondent: Kenneth E. Apgar, Esquire

Suite 1602, Metro Bank Building

501 East Kennedy Boulevard Tampa, Florida 33602

By Administrative Complaint filed July 7, 1983, the Department of Professional Regulation, Board of Pilot Commissioners, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Fred F. Enno, Jr., as a Tampa Bay pilot. As grounds therefor it is alleged that on February 26, 1982, while piloting the M. T. JUPITER Respondent negligently caused the M. T. JUPITER to strike the Florida Power Corporation dock at Weedon Island in Tampa Bay.

Specifically, it is alleged that Respondent was negligent in use of excessive speed while approaching the dock and in striking a stationary object.

At the hearing Petitioner called ten witnesses; Respondent called two witnesses, including Respondent; and 12 exhibits were offered into evidence. Ruling on the objection to Exhibit 12, an affidavit, on grounds of hearsay, was reserved at the hearing. So much of that affidavit, as corroborates competent evidence received, is now admitted.

Proposed findings and conclusions submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. At all times here relevant Respondent held a Florida license as a pilot for Tampa Bay.

   
   

2. Shortly before midnight on 25 February 1982 Respondent boarded the M.

   T. JUPITER in Cut G, Tampa Bay, to pilot the ship to her destination at Florida Power Corporation's dock on Weedon Island. Two tugs, the BRADENTON and PALMETTO, were available and utilized from Cut G to the entrance to the Florida Power Corporation dock. The BRADENTON was made up on the port bow and the PALMETTO was made up on the starboard bow of the M. T. JUPITER.

   
   

3. Around 4:10 a.m. on 26 February 1982 the M. T. JUPITER had made the last turn toward the Florida Power Corporation dock on Weedon Island and was proceeding westward at dead slow speed in the center of the entrance channel.

   
   

4. The M. T. JUPITER was scheduled to moor port side to at the south dock at the Florida Power Corporation slip. Line handlers were standing by on the dock and the ship's crew had been called to cast the lines from the ship when so directed. The BRADENTON on the port bow was ordered to let go and stand by on the port quarter. Shortly after arriving at the port quarter the BRADENTON was ordered to stand by on the starboard quarter, but was never directed to put a line on the M. T. JUPITER. The PALMETTO remained fast to the starboard bow with her engines in the ahead position. Without having a line on the M. T. JUPITER, the BRADENTON could do nothing to reduce the speed or forward movement of the JUPITER.

   
   

5. At 4:14 a.m. Respondent ordered all engines stopped on the M. T. JUPITER as the ship approached the slip. As the M. T. JUPITER entered the slip several people on the south dock waiting to take the lines from the M. T. JUPITER thought the M. T. JUPITER was moving too fast for a proper mooring. One of these witnesses equipped with a bullhorn yelled to the M. T. JUPITER a couple of times to slow down as he too thought the ship was moving too rapidly.

   
   

6. At 4:20 a.m. Respondent ordered the PALMETTO to push M. T. JUPITER's bow to port and ordered all engines back full. As he did so the bow swung to starboard and at 4:21 a.m. Respondent ordered the engines stopped and the PALMETTO to let go and stand clear as the starboard bow was moving toward the north dock. As soon as the PALMETTO was clear, at 4:22 a.m., Respondent again ordered the engines back full. The M. T. JUPITER collided with the dock at 4:23

   a.m. and Respondent ordered the engines stopped. The tugs secured lines to the

   M. T. JUPITER, pulled her away from the north pier which she had struck, and moored the M. T. JUPITER to the south slip.

   
   

7. At the time of this incident the tide was high, there was no effective tidal current, and the wind was from the east-northeast at 10-15 knots. The effect of the wind, if any, was that to be expected from a following wind which would slightly increase the drift of the ship in a westerly direction.

   
   

8. The south pier where the M. T. JUPITER was ordered to tie up is 1,100 feet long and the distance across the slip between the south and north piers is

   250 feet. The north pier is shorter, just under 800 feet long. At the end of this slip Florida Power Corporation has its cooling water intakes at which are located six pumps with a combined rated capacity of 390,000 gallons per minute. During the time involved in this incident four of these pumps were on the line providing cooling water to the plant.

9. These suction pumps are essential to the power plant's operation. Hence they may be expected to be on at all times. This fact is known to all Tampa Bay pilots and is an item included in the examination for licensure as a Tampa Bay pilot.

   
   

10. No credible evidence was presented as to the actual current generated in this slip by these suction pumps. However, pilots have brought ships into this slip for many years and have generally experienced slight to no effect on the ship from these pumps.

    
    

11. Respondent's testimony, that his first engine command following the 4:14 a.m. stop bell was slow astern, then half astern before the command for full astern was given at 4:20 a.m., is not supported by the bell book, the casualty report Respondent prepared immediately following the casualty (Exhibit 1), or by the statement he gave the U.S. Coast Guard investigator dated 26 February 1982 (Exhibit 11).

    
    

12. Respondent did not know the speed the M. T. JUPITER made through the water with the engines ahead dead slow and no evidence was presented regarding this speed. Nor was any evidence presented regarding the speed imparted to the

    M. T. JUPITER by the tug PALMETTO on the starboard bow after the M. T. JUPITER's engines were stopped. The PALMETTO's captain testified that Respondent ordered him full ahead to push the bow of the M. T. JUPITER toward the south pier and that he responded to that command until told to get his tug out of the way before the M. T. JUPITER collided with the north dock.

    
    

13. The lighting on the south pier of the docks provided good illumination in the area, resulting in good visibility for all witnesses.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. Section 310.101, Florida Statutes (1981), provides the Board of Pilot Commissioners has authority to revoke or suspend the license of a licensed state pilot or a certified deputy pilot who has been adjudged guilty of, inter alia:

    
    

    Negligence, incompetence, or misduct in the performance of piloting duties.

    
    

16. Negligence has been defined in Board of Pilot Commissioners v. Lerro,

    3 FALR 1120A (Final Order entered 3 April 1981), in which the Board adopted the conclusions of law of the Hearing Officer as follows:

    
    

    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 follow- ing 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.

    
    

17. Pilots are held to a higher standard of care than that of an ordinary mariner. See, Mariblanca Navegacion S.A. v. Panama Canal Company, 298 F.2d 729 (5th DCA 1962)

    
    

18. When a moving vessel strikes a fixed object, there is a presumption that the moving vessel is at fault. Woods v. U.S. Department of Transportation, Case No. 81-3212, U.S. Court of Appeals, Fifth Circuit, August 4, 1982.

    
    

19. The burden of disproof of fault by the moving vessel requires demonstration that its operation did all that reasonable care requires. Id.

    
    

20. It is here contended that Captain Enno was negligent in entering the slip at excessive speed and of failing to have the tug BRADENTON in a position to give assistance if needed. With respect to excessive speed, the evidence was in conflict. If the testimony of Captain Enno is believed, the M. T. JUPITER entered the slip at a speed through the water of one knot or less. The circumstances do not support such a finding. The evidence was uncontradicted that the M. T. JUPITER's engines were stopped at 4:14 a.m. and remained stopped for some six minutes as the M. T. JUPITER entered the slip. Numerous witnesses on the dock, while unable to estimate the speed of the M. T. JUPITER in knots as it entered the slip, testified they thought the ship was going "very fast."

    That message was passed to the M. T. JUPITER by the man with the bullhorn. Shortly thereafter the engines were ordered full astern. Captain Enno testified that he initially gave the command "back slow" then "back one-half" before ordering the engines full astern. The statement he gave to the Coast Guard and the casualty report he submitted shortly after the incident make no mention of any backing command before the order "full astern" was given.

    
    

21. Respondent had some six minutes to judge his speed relative to the dock as the M. T. JUPITER entered the slip with good lighting conditions. Prudence requires Respondent to decelerate the M. T. JUPITER long before an extremis situation dictated the full astern order. Failing to commence backing the engines before the M. T. JUPITER reached an in extremis situation constitutes failure to exercise reasonable care under the circumstances and constitutes negligence as above defined.

    
    

22. Respondent's failure to direct the tug BRADENTON to tie up to the M.

    T. JUPITER's starboard quarter deprived Respondent of another aid that should have been available to stop the forward movement of the M. T. JUPITER. However, this omission is not deemed significant in view of Respondent's delay in attempting to stem the advance of the M. T. JUPITER. Since the tug PALMETTO was unable to stop the bow of the M. T. JUPITER from swinging to starboard when the engines were backed full and backing the engines full was insufficient to stop the M. T. JUPITER before she struck the dock, it is difficult to see how the situation would have been changed had the tug BRADENTON been made up on the starboard quarter. Of course, had the BRADENTON been made up on the starboard quarter and properly used by Respondent, the accident could have been avoided. Similarly, had the engines been backed sooner to reduce the way on the ship the accident could have been avoided.

    
    

23. Respondent contends that the current generated in the slip by the plant's intake pumps at the end of the slip was unexpected and was the proximate cause of the accident. That position is not well taken. In the first place these pumps run continuously while the power plant is in operation and

    Respondent was aware of this fact. While suction pumps such as those here involved will create some movement in the water in the slip, this is a factor a prudent pilot must consider just as he must consider the effect of wind and current on the ship. This was not a sudden, unanticipated force of which Respondent was unaware. He had docked numerous ships at this pier and was well aware that he needed to anticipate water movement in the slip generated by these suction pumps.

    
    

24. From the foregoing it is concluded that Respondent, while piloting the

M. T. JUPITER, entered the slip at Florida Power Corporation's plant on Weedon Island at excessive speed and failed to order the engines backed until the M. T. JUPITER was in extremis. By this time it was too late to avoid the collision with the north pier which resulted. In failing to back the engines sooner so as to kill the way on the ship as it approached the dock, Respondent failed to exercise the standard of care required of a pilot. It is

RECOMMENDED that a Final Order be issued finding Captain Fred F. Enno, Jr., guilty of negligence in piloting the M. T. JUPITER on 26 February 1982 which resulted in a collision with a dock at Florida Power Corporation's plant. It is further

RECOMMENDED that Captain Fred F. Enno, Jr., be issued a letter of reprimand.

DONE AND ENTERED this 7th day of February, 1983, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1983.

COPIES FURNISHED:

William B. Ewers, Esquire

2170 S.E. 17th Street, Suite 204 Fort Lauderdale, Florida 33316

Kenneth E. Apgar, Esquire

Suite 1602, Metro Bank Building

501 East Kennedy Boulevard Tampa, Florida 33602

Jane Raker, Executive Director Board of Pilot Commissioners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001949

Orders for Case No: 82-001949