STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3935

)

HARRY J. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 31, 1987, in Tampa, Florida. The issue for determination in this proceeding is whether respondent's license as a state pilot should be disciplined for the reasons set forth in the Administrative Complaint filed on July 30, 1986.

APPEARANCES

For Petitioner: David C. Banker, Esquire

Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601

For Respondent: Nathaniel G.W. Pieper, Esquire

Lau, Lane, Pieper & Asti, P.A. Post Office Box 838

Tampa, Florida 33601 INTRODUCTION

By Administrative Complaint filed on July 30, 1986, respondent was charged with violating Section 310.101(5) of the Florida Statutes, (negligence, incompetence, or misconduct in the performance of piloting duties), and the provisions of Florida Administrative Code, Rule 21SS-8.07(I)(e) and (k), (excessive speed, disregard of safe practice, negligence and inattention). The factual bases for such charges are that, while piloting the foreign registered vessel J. LOUIS on November 6 and 7, 1985, respondent caused said vessel to run aground while attempting to make the turn from G cut into J cut in Tampa Bay and later caused it to strike the loading platform and dolphin at the Chevron facility in Port Tampa.

In support of the charges against the respondent, the petitioner presented the testimony of Captain John C. Hanson, accepted as an expert in marine casualty investigations; Captain Reginald Morley Atkins, Captain of the tugboat PALMETTO; Captain George Harrison Reid, accepted as an expert in piloting and

towing; and Captain Henry Wendel, Captain of the tugboat TAMPA. Respondent testified in his own behalf and also presented the testimony of George W. Coleman, accepted as an expert in tow boats and piloting. In addition, Joint Exhibits 1 through 19 were received into evidence, which included the deposition testimony of Robert E. Strickland, skipper on the YVONNE ST. LOUIS; Milladge Harvey, mate on the TAMPA; Yung Peng Tiao, Master of the vessel J. LOUIS; Lui Chan, Chief Officer on the J. LOUIS; Charles Otis Thomas, deck engineer on the TAMPA; Phillip H. Wetherington, deckhand on the TAMPA; James Lowrey, deckhand on the TAMPA; and respondent Harry John Williams, Henry Wendel and Reginald Morley Atkins.

Subsequent to the hearing, the parties submitted proposed findings of fact, proposed conclusions of law and a proposed recommendation. To the extent that the parties' proposed factual findings are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts are found:

1. At all times pertinent to the charges herein, respondent Harry J. Williams was acting under his State pilot's license number 0000047. The J. LOUIS, which respondent was piloting at the time of the subject incidents, is a foreign registered vessel required to be piloted by a State licensed pilot.

   
   

2. Respondent graduated from the Merchant Marine Academy in 1943, and sailed on U.S. merchant ships continuously until 1962. He became a full-time licensed Tampa Bay pilot in 1962, and has never had disciplinary action taken against his license. Over the past three years, respondent has piloted about

   300 ships a year, and about 25 percent of those trips have involved the Port Tampa Canal. The respondent had piloted the vessel J. LOUIS approximately ten to fifteen times prior to the incidents occurring on November 6 and 7, 1985.

   
   

3. The J. LOUIS is a Liberian registered vessel which is 669 1/2 feet in length, with a beam of 90 feet. She was built in 1961, is single screw, steam turbine and backs to port. On November 6 and 7, 1985, the J. LOUIS had a forward draft of 33 1/2 feet and an aft draft of 33 feet.

   
   

4. On November 6, 1985, at 2050 hours, respondent boarded the J. LOUIS off the sea buoy for the purpose of piloting her to the gypsum dock located on the Port Tampa Canal. It was his intent to arrive at the Port Tampa Canal on the high water slack tide which would have occurred between 12:30 and 12:45 a.m. on November 7, 1985. During the evening and morning hours of November 6 and 7, 1985, there were no adverse weather, wind or visibility conditions.

   
   

5. Respondent made arrangements for the harbor tugs YVONNE and PALMETTO to assist him on his journey, and those tugs timely arrived toward the west end of G cut, about 1 1/2 miles from the G cut turn into J cut. The harbor tug PALMETTO is 105 feet in length, has a beam of 26 feet (30 feet with the ship docking tires), a 13 foot draft, and 3,300 horsepower. The dimensions of the harbor tug YVONNE were not described, but it had assisted ships the size of the

   J. LOUIS on prior occasions.

   
   

6. Upon meeting the tugs in G cut, respondent ordered the PALMETTO to make up on the center chock of the stern of the J. LOUIS, and the YVONNE was ordered

   to make up on the port bow. The turn from G cut to J cut is a ninety degree turn from a westerly heading to a northerly heading. The tugs were directed to assist in making the turn. The YVONNE was ordered to come ahead full speed and get out on a ninety degree angle with the port bow. The PALMETTO was directed to push the starboard stern full ahead on a ninety degree angle. A tug is able to provide the greatest amount of assistance to a vessel when it is on a ninety degree angle with the vessel. The maximum vessel speed for a tug to make up at a ninety degree angle, and thereby provide the maximum amount of assistance, is three to four knots.

   
   

7. While attempting to make the turn from G cut to J cut in Tampa Bay, the

   J. LOUIS ran aground at approximately 2355 hours. While it is impossible to determine the vessel's precise speed near the time of grounding, the average speed of the J. LOUIS from its turn from F cut into G cut until its grounding was somewhere between 8.2 and 12 knots.

   
   

8. Respondent believed that he was going very slow, some 2 knots or less, when the bow of the J. LOUIS went aground. He felt that his vessel was sluggish coming to the right and that he was not getting full power from the tug YVONNE, perhaps because of mechanical problems.

   
   

9. The captains of the YVONNE and the PALMETTO both felt that the speed of the J. LOUIS reduced their ability to get on a ninety degree angle so as to provide maximum assistance during the turn. The Captain of the PALMETTO estimated the speed of the J. LOUIS to be 6 knots when approaching the turn from G cut to K cut. The chief officer of the J. LOUIS felt that the speed of the J. LOUIS was faster than normal under the circumstances. The YVONNE was able to swing out only to a forty- five degree angle due to the speed of the J. LOUIS. The PALMETTO was able to get to a sixty degree angle. At the time of the grounding, and prior thereto, the engine of the YVONNE was working fine. It was only after the YVONNE attempted to unground the J. LOUIS from some eight or nine different positions over a period of several hours that the YVONNE suffered problems with its reduction gear. The reduction gear alarm on the YVONNE came on about 0210 hours.

   
   

10. The evidence supports a finding that the cause of the grounding was the inability of the tugs to provide maximum assistance during the turning maneuver due to the excessive speed of the J. LOUIS. As noted above, tugs are increasingly ineffective as a ship's speed exceeds three knots. The speed of the J. LOUIS prevented the tugs from working on a ninety degree angle, thereby reducing their effectiveness in assisting with the turn.

    
    

11. The J. LOUIS remained grounded at the west end of G cut for about two and a half hours. After the YVONNE developed a problem with its reduction gear, she was replaced by the more powerful tug TAMPA, which released the J. LOUIS within ten minutes by pushing on her stem. The J. LOUIS apparently sustained no damage as a result of the grounding.

    
    

12. The tug TAMPA was christened in October of 1985. She is a twin diesel, 6000 horsepower tug, with twin propellers and ten rudders. The TAMPA is

    100 feet in length, with a beam of 32 or 33 feet, a draft of 13 feet, and is considered the most powerful and maneuverable tug on Tampa Bay.

    
    

13. Having been freed from the bottom at the west end of G cut at 0230 on November 7, 1985, the J. LOUIS, the TAMPA and the PALMETTO proceeded onward northerly up K cut toward Port Tampa. Although intending to arrive at the Port during the high water slack tide, the grounding delayed the arrival to about the

    time of maximum ebb tide. However, the predicted ebb tide of .54 knots was not particularly strong.

    
    

14. The entrance to the Port Tampa Canal is 250 feet wide, and requires an almost ninety degree turn from K cut. Respondent directed the PALMETTO to push on the starboard stern and directed the TAMPA to position itself on the starboard bow of the J. LOUIS. However, the Captain of the TAMPA represented that since the TAMPA had flanking rudders, it could do just as well backing as pushing. He therefore suggested that the TAMPA be positioned on the port bow, thereby removing the necessity of shifting to that side once the ship got up to the slip. Respondent accepted that suggestion and the TAMPA was positioned on the port bow of the J. LOUIS at about 60 feet aft of the stem with one line.

    The line was some 10 inches in circumference and, initially, about 50 feet in length between the vessels.

    
    

15. As respondent made the approach to the Port Tampa Canal, the J. LOUIS was travelling between four and six knots, again making it difficult for the assisting tugs to work on ninety degree angles. Perhaps to compensate for the anticipated ebb current, respondent's approach into the Canal was much closer to the north bank and its caissons than the normal approach. The tug TAMPA pushed on the port bow of the J. LOUIS until it became very close, as close as 10 feet, to the outer caisson (referred to locally as the "can opener"). Fearful that the TAMPA could be crushed between the J. LOUIS and that caisson, the Captain of the TAMPA ordered his crew to slack the line so that the TAMPA could slide back. The evidence is unclear as to whether respondent was informed that the TAMPA's line had been slacked, but respondent was informed by the TAMPA's Captain that the TAMPA was getting very close to the north bank and did not have much room.

    
    

16. The TAMPA's deckhands slacked out approximately 150 feet of line to enable the TAMPA to clear the outermost caisson. This action positioned the TAMPA close to the midship house of the J. LOUIS. After clearing the caisson, the TAMPA crew began retrieving the line. It was impossible to manually retrieve the ten inch line, so the crew used the bow capstan. This was the first time it had been used and the line was new. About 50 feet of the line was retrieved when the TAMPA received an emergency order from the respondent to start backing full astern. The TAMPA began backing full astern. Although the TAMPA deckhands had taken four turns around the capstan drum and put two figure- eights on the H-bitts up front, the line slipped about four or five feet. The TAMPA had to then slow down while another figure-eight was placed on the bitt. The line then being secured, the TAMPA began backing again, but the J. LOUIS struck the Chevron dock. While the dock sustained substantial damage, the vessel J. LOUIS was not damaged as a result of the collision.

    
    

17. There is no doubt that the slack in the line between the tug TAMPA and the J. LOUIS rendered the TAMPA less effective to assist in stopping the bow of the J. LOUIS from swinging starboard to the south. However, the evidence demonstrates that the TAMPA slacked the line in order to avoid hitting the caisson or being squashed between the caisson and the J. LOUIS. While there may have been other options available to the TAMPA, slacking the lines to avoid a collision with the caisson was not inappropriate or unreasonable given the close proximity of the caisson at the time that action was taken.

    
    

18. At least five experienced crew members on the TAMPA, the PALMETTO and the J. LOUIS, all of whom had entered the Port Tampa Canal on previous occasions, believed that the J. LOUIS, piloted by the respondent, entered the Canal with more speed and closer to the north than is normal. The Master of the

    J. LOUIS was satisfied with respondent's piloting.

    CONCLUSIONS OF LAW

    
    

19. The Board of Pilot Commissioners has the authority to discipline licensed State pilots for acts of misconduct, negligence, inattention to duty, or any failure to exercise that care which a reasonable and prudent pilot would exercise under the same or similar circumstances. Examples of such acts include excessive speed and any disregard of safe practice. Section 310.101(5), Florida Statutes; Rule 21SS-8.007(1)(e) and (k), Florida Administrative Code.

    
    

20. Here, the respondent is charged with negligently piloting the J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and, later, to strike the loading platform and dolphin at the Chevron facility in Port Tampa. There is no dispute over the facts that the vessel J. LOUIS, while under the pilotage of the respondent, did run aground and did strike the dock on the dates specified. The only dispute is whether such occurrences provide grounds for disciplinary action against the respondent's license as a State pilot.

    
    

21. The initial burden of proof in disciplinary actions against professional licenses lies with the regulatory agency to establish the factual allegations of the complaint. That burden has been satisfied in this proceeding due to the presumption of fault which attaches when a moving vessel runs aground or strikes a stationary object. Bunge Co. v. M/v Furness Bridge, 558 F. 2nd 790 (5th Cir. 1977); Woods v. United States, Department of Transportation, 681 F. 2d 988 (5th Cir. 1982). The burden thus shifted to the respondent to demonstrate either that he was without fault, that the grounding or collision was occasioned by the fault of another or that the grounding or collision was the result of inevitable accident. The respondent failed to so demonstrate in this proceeding.

    
    

22. The respondent attempted to explain the grounding which occurred while making the turn from G cut to J cut by stating that the J. LOUIS was "sluggish" and that the tug YVONNE experienced mechanical difficulties rendering it unable to fully assist during the turning maneuver. The evidence does not substantiate such explanations. Respondent had been on the J. LOUIS on prior occasions and for approximately three hours prior to the grounding occurrence. Any problems with sluggishness should have been discovered prior to the time of the grounding. The evidence supports a finding and conclusion that the tug YVONNE did not develop mechanical problems with its reduction gear until over two hours after the J. LOUIS ran aground. While it is true that neither the YVONNE nor the PALMETTO were able to provide the J. LOUIS with maximum torque or assistance while making the turn, the evidence supports the finding that this was due to the excessive speed at which the J. LOUIS was travelling. Attempting a turn with excessive speed falls below the acceptable standard of care for a reasonable and prudent pilot and is grounds for disciplinary action.

    
    

23. Respondent's attempt to rebut the presumption of fault regarding the dock collision likewise fails. It is true that had the tug TAMPA been able to provide proper assistance in preventing the starboard swing of the vessel's bow, the collision would not have occurred. However, it is also true that the respondent's manner of entrance into the Port Tampa Canal prevented helpful assistance from the tug TAMPA. The TAMPA, being within ten feet of the caisson due to the respondent's northerly position in the Canal, was justified in slacking the line in order to avoid endangering the tug and its crew. Once that danger passed, the crew of the TAMPA attempted to regain both the slacked line and its proper position on the port bow of the J. LOUIS. It was not able to do this in time to prevent the collision. There has been no showing that the crew

of the TAMPA acted inappropriately in retrieving the line. Likewise, there was no showing that the slight slippage of the line was the cause of the collision. Instead, the evidence supports the conclusion that had the respondent entered the Canal at a slower rate of speed and in a less northerly position, the J. LOUIS would have received the proper assistance from the tugs and the collision could have been avoided. The respondent has failed to demonstrate that he was without fault in the collision.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT respondent, Harry J. Williams, be found guilty of negligently piloting the vessel J. LOUIS on November 6 and 7, 1985, so as to cause it to run aground and to strike the Chevron loading facilities, and that, for such offenses, an administrative fine in the amount of $1,000.00 be imposed.

Respectfully submitted and entered this 10th day of July, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 10th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3935

The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below.

Petitioner

13. Partially rejected as contrary to the evidence.

The tugs were unable to carry out respondent's orders due to the speed of the J. LOUIS.

30. Rejected as contrary to the evidence. Circumstances created by the respondent prevented respondent's orders from being carried out.

Respondent

13, third sentence.

Rejected as contrary to the evidence.

14 - 16. Rejected as contrary to the evidence.

1. Partially rejected as contrary to the evidence. The tug TAMPA obviously encountered problems.

2. Partially rejected. The greater weight of the evidence

supports a finding that the initial entrance into the Canal was at a speed greater than normal.

37. Rejected as contrary to the evidence. 40, second sentence.

Rejected. See Finding of Fact 15.

53. Accepted as being Coleman's testimony, but opinion rejected as contrary to the greater weight of the evidence.

1. Rejected as contrary to competent, substantial evidence.

2. Rejected; not supported by competent, substantial evidence.

58. Rejected as contrary to competent, substantial evidence.

60. Rejected as contrary to the greater weight of the evidence.

COPIES FURNISHED:

David C. Banker, Esquire Shackleford, Farrior,

Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601

Nathaniel G. W. Pieper, Esquire Lau, Lane, Pieper & Asti, P.A. Post Office Box 838

Tampa, Florida 33601

Linda Biedermann, Executive Director Board of Pilot Commissioners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PILOT COMMISSIONERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH NO.: 86-3935

DPR CASE NO.: 64821

HARRY J. WILLIAMS, LICENSE NO.: 47

Respondent.

/

FINAL ORDER OF THE BOARD OF PILOT COMMISSIONERS

This matter came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9), Florida Statutes, on November 10, 1987, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by H. Reynolds Sampson, Esquire. Respondent was present and was represented by Nathaniel G. W. Pieper, Esquire. Respondent filed Exceptions to the Recommended Order. Petitioner filed a Response to the Respondent's Exceptions.

Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following determinations, findings and conclusions.

EXCEPTIONS

The exceptions (1-3) filed by the Respondent to the findings of fact are rejected because the facts in question are supported by competent substantial evidence. Specifically, regarding exception one, competent substantial evidence appears at page 25 of the transcript of the hearing; regarding exception two, competent substantial evidence appears at page 50 of the transcript; regarding exception three, competent substantial evidence appears at page 22 of the deposition of Milladge Harvey. The exception four filed by the Respondent to the conclusion of law is rejected because the conclusion in question is a correct application of the law.

FINDINGS OF FACT

The findings of fact in the Recommended Order are adopted without modification.

CONCLUSIONS OF LAW

The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 310, Florida Statutes.

The conclusions of law in the Recommended Order are adopted without modification.

DISPOSITION

Upon review of the complete record in this case, the Board determines that the penalty recommended by the Hearing Officer is modified in that the $1,000.00 fine is rejected for the reason that Respondent has been licensed since 1962 and has never had a probable cause finding against him in 25 years (transcript of the hearing at 114-115).

THEREFORE IT IS ORDERED that:

The recommendation of the Hearing Officer, as modified above, is adopted. THIS ORDER TAKES EFFECT UPON FILING with the Clerk of the agency.

THE PARTIES ARE NOTIFIED, pursuant to Section 120.59, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

ORDERED this 26th day of January 1988.

BOARD OF PILOT COMMISSIONERS

William Henry Young Chairperson

CERTIFICATE OF SERVICE

I CERTIFY that a copy of this Final Order was provided by Certified Mail to Harry J. Williams, Post Office Box 10667, Tampa, Florida 33629; Nathaniel G. W. Pieper, Esquire, Lau, Lane, Pieper & Asti, P.A., Post Office Box 838, Tampa, Florida 33601-0838; and by hand delivery to H. Reynolds Sampson, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, this 4th day of February 1988.

Patricia B. Guilford Executive Director

Board of Pilot Commissioners

cc:

Diane D. Tremor Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 86-003935

Orders for Case No: 86-003935