STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3230

)

ROBERT F. PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 5, 1983, in Tampa, Florida. The issue for determination in this proceeding is whether respondent's license as a pilot should be revoked, suspended or otherwise disciplined on the grounds that he is guilty of negligence in the performance of piloting duties and failure to file a complete report of a marine casualty.

APPEARANCES

For Petitioner: W.B. Ewers, Esquire

Post Office Drawer 9008

Coral Springs, Florida 33075 and

David G. Hanlon, Esquire Post Office Box 3324 Tampa, Florida 33601

For Respondent: C. Steven Yerrid, Esquire

Julia S. Chapman, Esquire Holland & Knight

Post Office Box 1288 Tampa, Florida 33601

PRELIMINARY STATEMENT

By an Administrative Complaint filed on November 4, 1982, respondent is charged with violations of Sections 310.101(4) and (5) and 310.111, Florida Statutes, and Rules 21SS-8.01(5) 21SS-8.05, and 21SS-8.07(1)(f) and (n) (now (1)), Florida Administrative Code. Factually, it is alleged that respondent negligently caused the M/T ZAMORA to strike a dock, thereby causing damage to the dock and the vessel, negligently used excessive speed and failed to file a complete report of the casualty within seven (7) days of the collision.

In support of the charges, petitioner presented the testimony of Frank A. Hanley, a cargo and marine surveyor; John Swope, a terminal operator at the

Florida Power Corporation Terminal at Weedon Island; Richard W. Reed, a supervisor of system fuel operations at the Weedon Island Terminal; Captain Oran

1. Pardo, the captain of the tug YVONNE ST. PHILLIP; and Captain John C. Hanson, a consultant to the petitioner who was accepted as an expert witness in the areas of docking, undocking and vessel handling. Petitioner's Exhibits 1 through 10 were received into evidence.

   
   

   Respondent testified on his own behalf and presented the testimony of Captain Gary Maddox, whose expertise as a Tampa Bay pilot was conceded and accepted. Respondent's Exhibits 1 and 2 were received into evidence.

   
   

   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 included in this Recommended Order, they are rejected as being either 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.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. Respondent Robert F. Park has been a licensed Tampa Bay pilot for some

      26 years. All his piloting experience has been in the Tampa Bay area where he has piloted over 9,000 vessels in and out. He has piloted some fifty vessels in and out of the Florida Power Corporation Terminal at Weedon Island.

      
      

   2. The Florida Power docking facilities at Weedon Island consist of a north and a south pier. The south pier is approximately 1,100 feet long, the north pier is about 700 feet long and the channel or slip in between is approximately 250 feet wide.

      
      

   3. On August 5, 1982, at 1230 hours, respondent boarded the M/T ZAMORA for the purpose of docking it at the Weedon Island facility. The ZAMORA is a large tanker approximately 590 feet long, and, at the time, was carrying 155,000 barrels of oil. Upon boarding the vessel, respondent reviewed posted documents concerning the vessel in the wheelhouse and observed the condition of the vessel and its crew. He does not recall asking the captain whether the vessel had any particular maneuvering problems or characteristics.

      
      

   4. The ZAMORA, with two tugs assisting, was to enter the turning basin of the Weedon Island facility and moor, port side to, at the south pier. The A.P. ST. PHILLIP was positioned on the stern and the YVONNE ST. PHILLIP was placed on the starboard bow. The A.P. ST. PHILLIP, having 2800 horsepower, was made up with one headline to the center chock aft, or the Panama chock, so that it could work either the port or starboard quarter of the ZAMORA. The forward tug, the YVONNE ST. PHILLIP, having 3300 horsepower, was made up to push the bow toward the south pier for docking. The placement of the two tugs in this manner is appropriate and is an effective means of maintaining a vessel's approach in a docking maneuver. The YVONNE ST. PHILLIP and the A.P. ST. PHILLIP are among the most powerful harbor tugs in the Tampa Bay area.

      
      

   5. Two employees of the Weedon Island facility, both of whom had seen over a hundred vessels enter that facility for docking purposes, observed the ZAMORA make its entrance into the slip area between the north and south piers. One of these eye witnesses felt that the arrival of the ZAMORA was unusual because of

      the speed with which it was approaching the dock, and the angle of the vessel gave the appearance that it was a little out of control. The other witness observed that the ZAMORA, as it entered the slip, "was coming faster than what I normally see for a tanker." (TR 47). Neither of these witnesses were able to estimate, in knots or miles per hour, the actual speed of the vessel. According to the respondent and the captain of the YVONNE ST. PHILLIP, the speed of the ZAMORA upon entering the dock area was between one and two knots. This is not an excessive speed when approaching a dock.

      
      

   6. Respondent maintained constant radio contact with both tug captains whom he had worked with previously over a long period of time. The initial entry into the Weedon Island facility was without incident. Tidal and weather conditions were good. Respondent intended to head the ZAMORA toward the south dock on a slight angle. It is typical for a vessel's stern to veer to port during a backing maneuver, thus causing the bow to move to the right. The first time respondent backed the ZAMORA was during the entrance to the slip area.

      When he did so, the vessel backed very strongly to port. At that time, he instructed the A.P. ST. PHILLIP (the aft tug) to swing around and come ahead on the port. At all times, the YVONNE ST. PHILLIP was applying momentum to the starboard bow of the ZAMORA, which had the effect of slowing down the bow's swing to the right. The A.P. ST. PHILLIP was coming ahead and applying force to the stern of the ZAMORA. At some point after the vessel's bow began veering to the right, the line parted on the aft tug A.P. ST PHILLIP. The captain of the YVONNE ST. PHILLIP noticed no difference in the movement or rate of swing of the ZAMORA after the aft tug's line was parted. The ZAMORA's bow continued to veer to the right and ultimately, at approximately 1530 hours, struck the north pier of the Weedon Island facility, causing extensive damage to the pier and damage to the ZAMORA.

      
      

   7. The annunciator tape or telegraph on the ZAMORA reveals that respondent gave the following engine commands:

      
      

      1520.5	half	speed
      1521	slow	ahead
      1525	stop
      1526	dead	slow ahead
      1526.5	stop
      1528	slow	astern
      1529	stop
      1529.5	full	astern
      1530	full	astern
      1531.5	stop

      
      

      The second "full astern" command at 1530 constitutes a "jingle" and signifies an emergency situation. Respondent was attempting to get enough sternway on the vessel to swing clear of the north pier and to give the stern tug time to get another line up and proceed onto the dock. This did not occur.

      
      

   8. It was the opinion of Captain Park that the cause of striking the north pier was the loss of the assistance of the aft tug. It was the opinion of the petitioner's expert witness, based upon his review of the investigative file and the testimony of the forward tug captain, that the casualty would have occurred whether or not the aft tug's line had parted. There was also testimony that, depending upon the actual positioning and movement of the A.P. ST. PHILLIP, the parting of its line could have been beneficial to the ZAMORA in counteracting the vessel's veer to the right.

   9. A Marine Casualty Report was filled out by the respondent on August 5, 1982, the same day as the incident. It was received by the Department of Professional Regulation on August 16, 1982. The form provided for such reports advises that the law requires the reporting of a casualty within seven days of the casualty and that failure to fully and accurately complete the report will result in disciplinary action against the licensed State pilot. The form also provides that responses to any question of "not available" are not acceptable responses. The form requires the attachment of a copy of the bell book or ship's log entries covering the casualty and an additional page containing remarks or additional comments concerning the casualty. To the bottom of the form, respondent printed the words "NOTE -- Additional report will follow." It was respondent's intent to obtain a translation of the log book entries written in Spanish. An investigator with the Department of Professional Regulation interviewed respondent concerning this incident on September 9, 1982. Counsel for the respondent informed the investigator that he was making efforts to obtain and supply a translated version of the log book, and that once respondent had that information and the results of an underwater survey, respondent would be fully apprised of the facts and would supplement the Marine Casualty Report. The evidence in this proceeding does not reveal that an additional or supplemental report was ever filed with the petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Board of Pilot Commissioners has the authority to revoke, suspend or otherwise discipline the license of a State pilot who has been found guilty of negligence in the performance of piloting duties and/or violating a lawful rule promulgated by the Board. Section 310.101(4) and (5), Florida Statutes.

       
       

   11. Here, Captain Robert F. Park is charged with negligence in the performance of his piloting duties in that he caused his vessel to collide with the Florida Power Corporation dock and fendering system, a stationary object, and in the use of excessive speed. Negligence, as used in Section 310.101(5),

       Florida Statutes, has been defined as

       
       

       "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." Board of Pilot Commissioners v.

       Lerro, 3 FALR 1120A (Final Order, April 3, 1981.)

       
       

   12. In disciplinary proceedings, the burden is upon the regulatory agency to establish the facts upon which its allegations of negligence are based. Here, the record clearly establishes the fact that the M/T ZAMORA, while being piloted by the respondent, struck the north pier of the Weedon Island Florida Power Corporation facility. When a moving vessel runs into a fixed object attached to the land, there is a presumption of negligence. 7 Fla. Jur. 2d "Boats, Ships and Shipping," Section 24; Bunge Co. v. M/V FURNESS BRIDGE, 558 F.2d 790 (5th Cir. 1977). The existence of such a presumption requires the

       respondent to illustrate that he was without fault or that the collision was the result of inevitable accident.

       
       

   13. Here, the respondent attempts to rebut the presumption of negligence by evidence that the parting of the line between the aft tug and the ZAMORA

       resulted in the loss of one-half of his assistance in the docking maneuver, that his event constituted an unexpected surprise or circumstance and that he was thereby unable to avoid the collision with the pier. The evidence in this record does not support respondent's theory as to the cause of the collision.

       Vessels such as the ZAMORA have a tendency to back to port. When respondent attempted to back the vessel, the swing to port was more severe than he anticipated it would be. Neither the exact timeing of the parting of the A.P. ST. PHILLIP's line nor the exact position and function of that tug were clearly established at the hearing. Nevertheless, the forward tug captain observed no further swing of the starboard bow to the right after the A.P. ST. PHILLIP's line parted than was occurring prior to the parting of the line. Respondent offered no evidence to contradict this observation. Prior to entering the rather narrow slip and entrance way of the Florida Power Corporation facility, respondent made no attempt, either through inquiry of the ZAMORA's crew or by prior maneuvers during the journey, to ascertain the ZAMORA's backing abilities. Insufficient evidence was presented to illustrate that had the A.P. ST PHILLIP's line not parted, the accident would not have occurred. It cannot be concluded that the collision was a result of inevitable accident or unexpected surprise.

       Rather, it appears that the collision occurred as a result of the swing of the starboard bow toward the north pier, an event which should have been anticipated by the respondent given the tendency of vessels like the ZAMORA to back to port. It is concluded that the respondent has failed to rebut the presumption of negligence which attached when his moving vessel struck a stationary object.

       
       

   14. Petitioner has also charged the respondent with negligence in the use of excessive speed. This factual allegation had not been sustained. The only evidence offered by the petitioner to establish the ZAMORA's speed was the eyewitness testimony of two shoreside personnel and the bell logs of engine commands. It was not established that the Florida Power Corporation personnel had any sea experience, and they were unable to give any specific estimation of the vessel's speed, either in terms of knots or miles per hour. No evidence correlating the engine commands to speed was adduced. Instead, the testimony indicates that the two full astern commands constituted an evasive measure to avoid the collision and were appropriate in an emergency situation. Both the tug captain and the respondent estimated the speed of the ZAMORA to be between one an two knots. This is not an excessive speed for a docking maneuver.

       
       

   15. Finally, respondent is charged with failure to file a complete report of a marine casualty within seven days of the collision, in violation of Section 310.101(4), 310.111, Florida Statutes, and Rule 21SS-8.05, Florida Administrative Code. The statutes and rule require that the reporting occur, on forms provided, within seven days. The form provided requires full and accurate completion of the report and advises that "'Not Applicable' or 'N/A' is not an acceptable response to any question." Here, while respondent filled out the form on August 5, 1982, the date of the collision, the casualty was not "reported" until August 16, 1982, eleven days afterwards. The report was not complete in that it did not attach a copy of the bell book or ship's log entries nor did it attach the remarks or additional comments concerning the casualty. While noting on the form that an additional report would follow, respondent never honored that notation. His interview with the Department of Professional Regulation investigator occurring over a month subsequent to the casualty, does not cure his failure to provide a full and complete report within seven days of the casualty. It should be noted, however, that there was no evidence that Captain Park was attempting to conceal the casualty of otherwise mislead the petitioner with regard to the incident.

   16. In recommending a penalty for the violations found, the undersigned is mindful of the fact that respondent has been a licensed Tampa Bay pilot for over twenty-five years. The conclusion of negligence with respect to the collision is not one of gross negligence or one of conduct demonstrating respondent to be unfit to continue as a licensed State pilot. Instead, it is a finding that respondent failed to exercise the care required of a reasonable and prudent pilot and, as a result, the ZAMORA struck the north docking facility. It would be expected that respondent would exercise greater prudence and care in the future as a result of this incident.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of negligence in the performance of piloting duties and failure to file a complete written report of the casualty within seven days in violation of Sections 310.101(4) and (5), 310.111, Florida Statutes, and Rules 21SS-8.01(4) and (5) and 21SS-8.07(1)(n) (currently numbered (1)(l), Florida Administrative Code. For such violations, it is RECOMMENDED that the Board impose an administrative fine against respondent in the amount of

$1,000.00.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1984.

DIANE D. TREMOR

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 30th day of March, 1984.

COPIES FURNISHED:

W. B. Ewers, Esquire Post Office Drawer 9008

Coral Springs, Florida 33075

David G. Hanlon, Esquire Post Office Box 3324 Tampa, Florida 33601

C. Steven Yerrid, Esquire Julia S. Chapman, Esquire Holland & Knight

Post Office Box 1288 Tampa, Florida 33601

Joe W. Lawrence, II Director

Division of Regulation

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jane Raker Executive Director

Board of Pilot Commissioners Deapartment of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-003230

Orders for Case No: 82-003230