STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, BOARD ) OF PILOT COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2014

)

CLIFTON A. REGISTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on Wednesday, October 26, 1983, in the Richard P. Daniel Building, Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed on November 9, 1983. Proposed Recommended Orders by the parties have also been considered. Those proposals were filed November 30, 1983. To the extent that the proposals are consistent with this Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they have been rejected as being irrelevant, immaterial, contrary to facts found, contrary to conclusions of law reached or contrary to the recommended disposition in this cause.

APPEARANCES

For Petitioner: W. B. Ewers, Esquire

Post Office Drawer 9003 Coral Springs, Florida 33075

For Respondent: Boyd Wolf, Esquire

Steve Yerrid, Esquire Holland & Knight Post Office Box 1288

Tampa, Florida 33601 ISSUE

The issues concern the matters raised by the Administrative Complaint in which the Petitioner accuses the Respondent of negligence in the piloting of the M/V Oakland, a vessel outbound in the St. Johns River at Jacksonville, Florida. For these events, Petitioner seeks to discipline the license of Respondent. In particular, it is alleged that the Respondent violated Section 310.101(5), Florida Statutes, and Rule 2155-8.07 (1)(b) and 8.07(1)(f), Florida Administrative Code.

FINDINGS OF FACT

1. This case is promoted based upon the previously mentioned Administrative Complaint and the Respondent's ensuing request for formal hearing pursuant to Section 120.57(1), Florida Statutes. Respondent is licensed by the Board of Pilot Commissioners pursuant to Chapter 310, Florida Statutes. He holds pilot license No. 0000033. Register has served as a licensed pilot in the St. Johns River in the Port of Jacksonville, Florida, for a period in excess of

   20 years. Respondent has piloted ships in and out of the Port of Jacksonville on the St. Johns River approximately 20,000 times.

   
   

2. One of the assignments which Captain Register had as a pilot pertained to piloting the outbound vessel Oakland on the St. Johns River in Jacksonville, Florida, on March 19, 1983, commencing approximately 2303 hrs when he received the con of the vessel from the dockingmaster. The Oakland is a C-4 type of vessel or container ship which is approximately 685 feet long and 96 feet wide. At the time of these events in March, 1983, the Oakland was sailing under Registry, bound for a foreign port. The vessel was heavily laden, but not in excess of cargo capacity.

   
   

3. The trip out the St. Johns on March 19, 1983, is graphically depicted in Petitioner's Exhibit No. 3, admitted into evidence, which is a chart diagram of the river and adjacent shoreline, together with approximate positions of the Oakland and commands given taken from an interview with the Respondent and from the ship's log. The weather on this occasion was not an inhibiting factor in the navigation of the vessel, in fact the weather was "outstanding," with westerly winds of 8 knots.

   
   

4. The steering gear on the vessel had been checked at 2130 hrs the day of the scheduled voyage of March 19, 1983, and was found to be in acceptable working order. No problems had been experienced with the steering from mid- January 1983 through the date of the aforementioned check.

   
   

5. When Captain Register took over at 2303 hrs, the master of the vessel and other crew members were on the bridge to assist. In addition, the chief mate was on the bow as lookout. The chief mate, serving as anchor watch on the bow, was in communication with the ship's master via walkie-talkie. Once the vessel had been steadied up in the river, upon command of the Respondent, the vessel proceeded at full ahead and reached the approximate velocity of 10 to 12 knots before 2312 hrs. At 2312 hrs, Respondent ordered half ahead to maneuver in the Long Branch Range portion of the St. Johns. Half ahead represents 6 to 8 knots of speed in the water for the Oakland. At 2314 hrs, the command of slow ahead was given to avoid undue suction related to a vessel in a docking area adjacent to the St. Johns, known as the bulk terminal. When that command was given at 2314 hrs, the Oakland was carrying 6 to 8 knots of speed in the water. Also, at 2314 hrs, the chief mate was told to "stand by" the anchors. This command was given by Captain Fisher, the Oakland's ship's master.

   
   

6. In this time frame, 2314 hrs through 2316 hrs, the chief mate had some concern that they might have some trouble maneuvering by the Meton, a vessel moored in the St. Johns ahead of the Oakland as it was proceeding outbound. This vessel was a different ship than that found at the bulk terminal. The chief mate expressed the opinion that it looked like they would probably clear the Meton but it would be a close call. Five to ten seconds later, he told the bridge they weren't going to make it. The bow watch was assisting in this regard in view of the fact that the bow is some 600 feet forward of the bridge where the pilot and master were located. Between 2314 hrs and 2316 hrs,

   Register gave the command half ahead and the speed of the Oakland at that time was approximately 5 to 6 knots. Register also ordered 20 degrees right rudder to negotiate the Chaseville Turn and avoid the moored vessel Meton, a gasoline tanker. The ship did not respond readily to the 20 degree right rudder and immediately thereafter a hard right rudder command was given by Register. At 2316 hrs, a danger signal was sounded upon instigation of the Respondent. At 2317 hrs, Register ordered full astern with a jingle and the command was given to let go of the anchors. This command was relayed by Fisher to the chief mate on the bow. Additionally, the crew member on the bridge at the helm was responding to commands by Register and Register's commands were being communicated to the engine room through the ship's master. When the command to let go of the anchor was received by the chief mate, he went to the brake wheel to comply with the command. A boatswain was there to assist him. Upon reaching that location, the Oakland was approximately 200 feet away from the Meton, too late for the deployment of the anchors to help avoid a collision and the chief mate abandoned his post and moved away from the bow area without dropping the anchors. At that moment, the two ships were approximately 100 feet apart. In effect, there was not enough time to drop and set the anchor from the time the command was given at 2317 hrs and the time of an eventual collision between the Meton and Oakland.

   
   

7. The collision occurred in view of the fact that the efforts to turn away from the Meton and avoid the collision, i.e., the 20 degree right rudder, hard right rudder and full astern were not sufficient to avoid that collision. The collision occurred at 2319 hrs when the Oakland's bow struck the Meton's bow. At the point of impact, the Oakland was proceeding at 2 to 3 knots. Structural damage was caused to the vessels. No indication was given as to any injuries of ship personnel or others. From 2303 hrs through 2319 hrs, the critical period in consideration, ample assistance was afforded to Captain Register by members of the Oakland's crew.

   
   

8. After disengaging from the collision, the steering gear was checked by the chief engineer on the Oakland with particular emphasis on the rudder response and no abnormalities were detected. Tests by Coast Guard personnel made at dockside at 0930 hrs on March 21, 1983, and again while the ship was underway on March 24, 1983, did not reveal any abnormalities in the steering gear and response time for operation of the rudder was found to be within acceptable time constraints. The repairs that were made to the "key" involved in the steering mechanism, effective March 18, 1983, and repairs to the telemotor subsequent to the accident were routine and not contributors to the collision between the Oakland and Meton.

   
   

9. Captain Register and the master expressed surprise at the inability of the Oakland to maneuver by the Meton without collision. Nonetheless, neither of these witnesses or other persons who gave testimony were able to indicate some mechanical malfunction or outside contributing force which would have led to the eventual collision between the ships. Nor were the other witnesses helpful in this regard, to include pilots Steele and Williamson. In essence, no explanation was given to establish why a ship which was shown to be in good repair, sailing in uneventful weather, should collide with a stationary object, the Meton. Consequently, it is determined that negligent judgment in the operation of the ship on the part of the Respondent led to the collision. The testimony by Captains Fisher, Steele and Williamson as to the conduct of the Respondent in his performance do not excuse his negligence. Instead they speak convincingly to Respondent's efforts to mitigate the results of his error in judgment.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action per Section 120.57, Florida Statutes.

    
    

11. In keeping with Section 310.101(5), Florida Statutes, the Respondent's actions in piloting the Oakland on March 19, 1983, are said to constitute negligence in the performance of those piloting duties. That claim of negligence has been proven. Using the reasoning expressed in American Oil Company v. M/V Lacon, 398 F.Supp. 1181 (DCCA 1973) and Wood v. United States, No. 81-32212, U.S., 5th Cir. (Aug. 4, 1982), that states there is a presumption of negligence when a moving vessel strikes a moored or fixed object, the pilot in performing his duties at the con of the moving vessel is likewise subject to such presumption. When the Oakland struck the moored vessel Meton, this created the presumption of negligence on the part of Respondent. The explanation given by Respondent for such action is in the way of expression of surprise by the Respondent and the master of the vessel at the handling of the Oakland at the time the right turn was attempted in the vicinity of the Meton and assertion on the part of Fisher and those pilots who gave testimony for Respondent that the actions by Respondent were appropriate. The Respondent's explanation, while acceptable as an indication of mitigation of his negligence, does not excuse the negligence. The Respondent has not shown by competent evidence that the handling characteristics of the vessel Oakland were so extraordinary that he could not have anticipated the problems which arose and thereby be excused from what otherwise would have been a negligent act. A mere statement of surprise as to the vessel's handling characteristics does not constitute the quality of evidence which would tend to demonstrate problems over which Respondent had no control. Likewise, there is no indication of any "Act of God" or intervening circumstance external to the ship which would explain the collision. The expression of approval by his peers related to his performance is unconvincing, for while they look with favor on his tactics in ship command, the evidential facts point out a flaw in these command duties. In summary, he has failed to overcome the presumption of negligence.

    
    

12. In the alternative, if the concept of presumed negligence in the piloting of a ship which collides with a moored vessel is set aside, Respondent is still found to be negligent. In addition to the fact of the collision itself, there is substantial proof which shows that the steering gear in various pre and post collision inspections was in proper order. (Repairs effected to the steering device during this time sequence do not lead to a contrary conclusion). The ship was not over laden and all appropriate support was afforded the Respondent in the execution of his piloting duties, that is to say, assistance by ship's personnel on the Oakland. Moreover, the weather was favorable. This proof, considered in the context of Respondent's statement of surprise at the ship's handling and the general comment about his exemplary tactics in ship command, leads to the conclusion that Petitioner has successfully borne its burden of proof and has shown Respondent to be negligent.

    
    

13. Respondent is also accused pursuant to Rule 21 55-8.07 (1)(b) Florida Administrative Code, of the failure to obtain or properly use information available to the pilot. That allegation has not been proven. Nor has it been proven as alleged in the Administrative Complaint that Respondent was piloting the Oakland at excessive speed, per Rule 21 55-8.07(1)(f) Florida Administrative Code. Although speed entered into the negligence in Respondent's performance, it was not shown that the problem with speed was necessarily that of excessive speed.

14. Based upon a full consideration of the findings of fact and conclusions of law, it is

RECOMMENDED:

That a final order be entered which takes disciplinary action against Respondent by imposing a 30-day suspension.

DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 18th day of January, 1984.

COPIES FURNISHED:

Jane Raker, Executive Director Board of Port Pilots

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

Boyd H. Wolf, Esquire Holland & Knight

P.O. Box 1288

Tampa, Florida 33601

W. B. Ewers, Esquire

P.O. Drawer 9008

Coral Springs, Florida 33075

Joseph W. Lawrence, II, Esquire Department of Professional Regulation Tallahassee, Florida 32301

Docket for Case No: 83-002014

Orders for Case No: 83-002014