STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF PILOT )
COMMISSIONERS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3335
)
CLIFTON A. REGISTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated hearing officer on April 21, 1988 in Jacksonville, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: H. Reynolds Sampson, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750 (904) 488-0062
For Respondent: Gary A. Bubb, Esquire
Post Office Box 1500 Jacksonville, Florida 32201
BACKGROUND
This cause arose upon the filing of an administrative complaint by the above-named petitioner against Clifton A. Register (Respondent), a state- licensed harbor pilot. The complaint charges that on February 26, 1987 the respondent was the assigned compulsory state pilot for the purpose of conducting the motor vessel, Fernpasset, through "pilotage waters of the state" into the port of Jacksonville. It is alleged that the vessel, Fernpasset, upon arriving at the sea buoy which marks the entrance to the channel leading to the port of Jacksonville, radioed the pilot station requesting piloting services for her entry into the port of Jacksonville. It is alleged that the Respondent who was to pilot the vessel, or the pilot association dispatcher, advised the vessel that the state pilot would be boarded on the ship inside the jetties or breakwaters where the force of the wind and sea were abated. It is then alleged that while the respondent waited aboard the pilot boat, inside the breakwater, that the Fernpasset entered the channel, passing between buoys number three and four. The vessel then allegedly experienced a "strong southerly set" which deflected its course up the channel such that it struck on the rocks of the south jetty in the vicinity of buoy number seven, suffering extensive damage, including the holding of her fuel tanks causing extensive discharge of fuel oil.
It is thus charged that the respondent's conduct of his piloting responsibilities in this instance exhibited a disregard for safe pilotage practice falling below an acceptable standard for that practice in violation of Section 310.101(1)(k) , Florida Statutes and Rule 21SS-8.00(1)(k) Florida Administrative Code.
The cause came on for hearing as noticed. The Petitioner presented seven exhibits which were admitted into evidence, including the testimony by deposition of Captain Ole Brakstaad, the master of the vessel, and that of Kenneth Oleson, the chief mate of the vessel at the time of the accident in question. Additionally, the Petitioner presented the testimony of John C. Hansen, a private consultant for the Petitioner, regarding pilotage, and Lieutenant Commander Henderson of the Coast Guard. The Respondent presented the testimony of Errol Max Hatton, the dispatcher for the St. Johns River pilot station, Edgar Tuttle, the boatman for the St. Johns Bar Pilots and operator of the pilot boat on the evening in question; and Captain Elija Guillory, a shipmaster. Respondent's exhibits one and two were admitted into evidence.
The parties filed timely proposed Findings of Fact and Conclusions of Law and a Motion to Dismiss and response thereto on or before June 7, 1988. Those proposed findings and the motion are specifically ruled on in the Recommended Order and in the Appendix attached hereto and incorporated by reference in the Recommended Order. The issues to be resolved in this proceeding concern whether the Respondent is guilty of disregarding safe practices and falling below the acceptable standard for safe pilotage in violation of Section 310.101(1)(k), Florida Statutes and Rule 21SS-8.00(1)(k), Florida Administrative Code by waiting to board the vessel he was to pilot into the port of Jacksonville until that vessel had come inside the jetties or breakwater in the vicinity of buoy number seven in the St. Johns River channel, instead of boarding the vessel in the vicinity of the sea buoy, which is slightly less than two miles offshore of the entrance between the two rock jetties.
FINDINGS OF FACT
The Petitioner, the State of Florida, Department of Professional Regulation, filed an Administrative Complaint in prosecution of a probable cause finding by the Board of Pilot Commissioners, an agency of the State of Florida charged with regulating entry into the profession of harbor piloting and enforcing the practice standards for that profession for those already licensed. The Respondent at all times material hereto, was admitted as a licensed pilot in the State of Florida, having been issued license number 0000033. The Respondent resides in Jacksonville, Florida and practices his profession by piloting vessels in and out of the port of Jacksonville.
On February 26, 1987, the motor vessel, Fernpasset, was approaching the port of Jacksonville for the purpose of discharging a load of Volkswagon automobiles. The Fernpasset is a Liberian registered car carrier having a gross tonnage of 9841 tons, a length of 536 feet, with an 89.5 foot beam. The vessel is somewhat unique in that it has a very large "sail area" or wind-affected profile as a necessary part of its structure, which extends approximately ninety percent of the vessel's total length and at a height of approximately sixty feet above the water line. This represents a much larger wind-affected profile for this vessel, as compared to more conventional cargo ships.
The Jacksonville Harbor is reached by navigation of the St. Johns River channel inland from the Atlantic Ocean. At the point where the river and river channel reaches the Atlantic Ocean are two jetties, composed of granite rocks,
serving as a breakwater at the entrance to the harbor. The harbor entrance has a north jetty and a south jetty. The north jetty projects waterward from the land for approximately 2,400 yards. The south jetty projects out into the water approximately 1,400 yards. Buoy number seven in the St. Johns River channel is located nine hundred yards inside the jetties.
At approximately 1800 hours on February 26, 1987, the Fernpasset commenced preparation for entering the port of Jacksonville. The chief mate made VHF radio contact with the Jacksonville pilot station at about this time and gave the dispatcher at the pilot station, at his request, his estimated time of arrival at the sea buoy, his deep draft, approximately twenty-two to twenty- four feet, and what the weather conditions were at sea.
During the initial radio contact between the Fernpasset and the pilot dispatcher, Errol M. Hatton, at approximately 1815 hours, the dispatcher asked First Officer (Chief Mate) Oleson whether he wanted to pick the pilot up inside the jetties or at the sea buoy. He replied that it would pick up the pilot inside the jetties. The vessel's master, Ole Brakstaad, agreed to that procedure. After this initial contact, and after the arrangement with the Fernpasset was made that it would pick the pilot up inside the jetties, the dispatcher called the Respondent, Captain Register and informed him of the job and the boarding arrangement.
Prior to the Fernpasset arriving in the port area, the Jacksonville area had experienced moderate to severe weather from the northeast with "northeasters" blowing for approximately a week, with choppy and rough seas. Indeed, the official log of the M/V Fernpasset reveals that wind conditions on February 26, 1987, while at sea, varied from wind force four through wind force six and seas varied from sea scale four through sea scale five. Just two hours before the initial radio contact with the pilot station, at approximately 1600 hours, the Fernpasset was experiencing winds from the Northeast at force five, gusting at six. The sea had a heavy swell running at that time. Wind force six is approximately twenty-two to twenty-seven nautical miles per hour. Sea scale five consists of waves running eight to twelve feet high. See Respondent's exhibit two, (Brakstaad's Deposition).
After Captain Register arrived at the pilot's station, the dispatcher, Mr. Hatton, spoke with the vessel approximately two more times, checking on its estimated time of arrival and having the vessel confirm that it would pick up the pilot inside the jetties. This arrangement had already been made before Captain Register had been called at his home by the dispatcher and told to report for duty to pilot the Fernpasset into the harbor. Captain Register did not participate in the conversation that set up this arrangement because he was at home and not on duty at the time. The evidence does not reflect that this choice was anything but freely made by the master of the Fernpasset and it does not indicate that Captain Register had any reason to believe that the master of the vessel had not freely chosen to pick up the pilot inside the breakwater, especially in view of the fact that inclement weather conditions were prevailing, with the attendant danger involved in boarding a pilot in heavy seas.
In any event, the master of the vessel, Captain Ole Brakstaad, commenced conning his vessel into the entrance to the St. Johns River. He used his radar and the navigational markers to line up the vessel to transit between the north and south jetties. The vessel's master had assumed control of the vessel's movement from the Chief Mate at approximately 1900 hours. At approximately 1943 hours, the vessel passed the sea buoy preparing to enter the
entrance channel to the river. At 1944 hours, several rudder commands were given to the helmsman and the vessel "steadied up" on course 278 degrees, lined up to enter the channel. At about this time, the winds had shifted to north- northeast at approximately 16 knots. As the vessel entered the channel, the master and the chief mate were unable to see the range lights. At 1946 hours, the master ordered a slow ahead "bell" to reduce the ship's speed to 10 knots for transiting the channel. The range lights were still not visible to the master or chief mate. As the vessel passed buoys three and four, it was centered in the channel. The wind speed increased to approximately eighteen knots from the northeast. In order to counteract the effect of the wind and strong current, which was in a southerly direction, the master ordered the helmsman to come to starboard to course 283 degrees, in order to remain centered in the channel. The master determined that the vessel was being "set" to the south by the combined forces of the northeast wind and the southerly current and therefore had to steer further north to compensate for the set. He ordered courses of 285 degrees, 290 degrees and finally 295 degrees. At 1953 hours, he increased the vessel's speed from slow ahead to half speed ahead to provide for greater maneuverability. At approximately 1954 hours, he ordered full speed ahead, with an emergency bell, to the engineer after realizing that his ship was sideways in the channel and still being set to the south. At 1955 hours, however, the Fernpasset grounded on her port side on the St. Johns River entrance channel south jetty. Before he could contact the pilot, however, he received a call from the pilot boat stating that the Captain should proceed into the channel at a speed of 10 knots. The master informed the pilot that his vessel had run aground and that he needed tug assistance. At approximately 2015 hours, Captain Register boarded the grounded vessel. Captain Register was only able to board the vessel after great difficulty because of the rough weather.
After he got aboard, he assisted in towing the vessel off the breakwater and out to sea and in assessing damages.
The practice of boarding a pilot requires the vessel being boarded to slow down and make a "lee" or sheltered area on one side of the vessel, sheltered from winds and waves, to help the pilot boat approach and place the pilot aboard the ship. The pilot boat is a fifty-two foot boat, specially designed, with a platform over the deckhouse or cabin upon which the pilot stands in order to catch a rope ladder thrown over the side of the ship to be boarded. The ladder must be caught on the up-roll of the pilot boat so as to avoid the pilot's being crushed between the pilot boat and the side of the ship while he is on the rope ladder. Boarding a pilot is dangerous under any circumstances, and especially so during heavy, severe weather. Weather conditions off the mouth of the St. Johns River are usually much worse as to the wind and rough waves than inside the jetties.
Captain Elija Guillory is a shipmaster who has an unlimited Master's License for any type of vessel. He has been a master mariner for twenty-five years. He is currently the master of the tanker, Neches. He has entered and exited the port of Jacksonville many times. In fact, he enters the Jacksonville port approximately one and one-half times per month on trips between Houston and Corpus Christi, Texas and Jacksonville. He is also a licensed pilot for the port of Houston, Texas. Captain Guillory was accepted as an expert in shipmaster's duties and practices. Captain Guillory's testimony establishes that the master of a vessel always makes the final decision about when and where to pick up a pilot. He is the person best able to, and responsible for, determining the safety of a given situation, both as to his vessel and the pilot's safety. Captain Guillory testified that, if it be assumed that a northeast wind of Beaufort force five or six, with a heavy swell, was operating that it would be a "borderline situation" as to the safety of picking up a pilot
outside the jetties under those conditions. He testified that it would depend on the characteristics of the vessel and circumstances aboard the vessel. On his own ship, which has about thirty-five feet of free-board, (less area exposed to the northeast wind), he felt he would be able to have boarded the pilot outside. A car carrier, however, has a large "sail area" of approximately sixty feet above the water line extending approximately ninety percent of the length of the vessel. This might have made it risky to slow or stop a ship with that much sail area, with a strong wind blowing, in order to pick up a pilot outside the jetties in view of the southerly set caused by both the wind and current.
Captain Guillory established that it is regular practice for him and other shipmasters to tell the pilot where he will pick the pilot up during episodes of rough weather. In nice weather, he gives the pilots a choice about where they are to be picked up. He established that that is the standard practice between shipmasters and pilots for East coast United States ports. Finally, Captain Guillory opined that the Captain of the vessel should not have decided to enter the port without a pilot.
In any event, it is the practice of master mariners to make the decision at sea, before entering the port, as to the safety of the vessel, the crew and the boarding pilots. It is customary and common for the master to make a decision that, due to bad weather conditions, he will pick the pilot up inside the jetties at the port of Jacksonville. This is decided after the master has made an independent evaluation of all the safety factors to consider.
Although the United States Coast Pilot, volume four, states that the pilot boarding area for Jacksonville is between the sea buoy and the outermost entrance channel buoy, this is merely a guide for optimum conditions. Pilots are normally and customarily boarded where ever the master feels it is safe to do so under then-prevailing conditions. In this instance, the master of the vessel made the final decision as to where to board the pilot. That decision was made before the pilot had been informed that the vessel to which he was assigned was approaching the sea buoy and that it was time for him to go on duty and prepare to board the vessel. He did not participate in the decision about picking up the pilot inside the jetties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. See Section 120.57(1), Florida Statutes (1987).
The Respondent is charged with violating Section 310.101(1)(k), Florida Statutes, and Rule 21SS-8.007(1)(k), Florida Administrative Code, which provide respectively as follows:
. . . "(k) engaging in any practice which does not meet acceptable standards of safe piloting and
"(k) any disregard of safe practice, whether intentional or unintentional which does not meet acceptable standards of safe piloting."
The Respondent has moved to dismiss the complaint on grounds that the Respondent, at times pertinent hereto, leading up to and including the grounding of the vessel, was not engaged in "pilotage" because he was not aboard the vessel and not exercising his responsibilities in taking the "conn" of the
vessel and otherwise guiding it safely into port. The point of the motion is that the pilot had not yet become engaged in piloting at the time the incident giving rise to this proceeding occurred. Indeed, Subsection 310.002(6), Florida Statutes states that the term "piloting" "means the acts of pilots in conducting vessels through the pilotage waters of the state." "Pilotage waters of the state" are defined at paragraph (5) of that section as meaning "the navigable waters within the boundaries of the state." It is clear, as Respondent maintains, that the legislative intent concerning the term "piloting" was that pilots should be regulated as to their acts involved in conducting vessels through pilotage waters of the state in and out of the state ports as they are defined in that section. It is equally without dispute that Captain Register was not aboard the M/V Fernpasset at the time she struck the rocks. It is not clear, however, that Captain Register was not engaged in any act of "piloting" as defined above or contemplated by the legislature in its enactment of Chapter 310, Florida Statutes. In fact, the meaning of the pertinent provisions of Chapter 310, cited above, should not be interpreted so restrictively as to include in the "acts of conducting a vessel through pilotage waters of the state" as being only those acts when a pilot is on the bridge of the ship, handling the wheel or otherwise directing the movements of the vessel. Indeed, safe practice of piloting might as easily be interpreted to mean the timeliness of a pilot getting aboard a vessel needing to make ingress or egress from one of the ports of the state. The legitimacy of this broader interpretation is borne out by the purpose behind Chapter 310 regulating pilots and piloting, stated at Section 310.001 as follows:
"Purpose. - The legislature recognizes that the waters, harbors and ports are important resources, and it is deemed necessary in the interest of public health, safety, and welfare to provide laws regulating the piloting of vessels utilizing the navigable waters of the state in order that such resources, the
environment, life, and property may be protected to the fullest extent possible. To that end, it is the legislative intent to regulate pilots, piloting, and pilotage to the full extent of any congressional grant of authority, except as limited in this chapter."
Put quite simply, the act or inaction of a pilot in timely getting aboard a vessel at a point where he is best able to conduct that vessel through channels, currents and other intricacies involved in safely reaching port should clearly be interpreted to be an "act of piloting" in view of the strong legislative purpose of protecting life and property "to the fullest extent possible. . . . ". Whether or not a pilot timely boards a vessel at the propitious location for safely conducting it through the pilotage waters of the state, would certainly seem to involve a consideration of whether he had "disregarded safe piloting practices" or observed them correctly, or "engaged in any practice which did not meet acceptable standards of safe piloting" or, on the other hand, observed acceptable standards of safe piloting. In short, questions like those raised in this case, concerning when the pilot should board the vessel and at what point and under what weather and sea conditions, and so forth are, under the statute and rule under which the Respondent is charged, relevant considerations. This is without speaking to the merits of whether or not the Respondent properly observed those practice standards. Thus, it is concluded that the Motion to Dismiss should be DENIED.
Concerning the question of whether the Respondent failed to observe proper standards of safe piloting in the subject incident wherein he was to be
picked up by vessel inside the jetties at the mouth of the river as opposed to offshore in the vicinity of the sea buoy, it should first be pointed out that the record is not unequivocal concerning how the question of the pilot boarding point was suggested. The dispatcher, Mr. Hatton, testified that he asked the vessel and the first officer where they wanted to pick up the pilot and they replied "inside the jetties", or words to that affect. The testimony of the First Officer, taken by deposition, seems to indicate that the pilot station radio operator requested that the vessel pick the pilot up inside the jetties, instead of asking, in a neutral vein, where the vessel's master wished to pick the pilot up. In large part, however, this is a distinction without a difference because, as unequivocally established by Captain Guillory's expert testimony, it is always the master of the vessel who has the ultimate responsibility for its safety and who has the ultimate decision-making authority concerning where and when to board a pilot with a view toward best protecting the safety of his vessel. Here the record reflects, in the testimony of the First Officer himself, that the master of the Fernpasset readily assented to picking up the pilot inside the jetties and made no argument or other comment opposed to that procedure. Further, the record shows that as the pilot was preparing to take Captain Register to the agreed-upon boarding point, that the vessel twice more confirmed its agreement to pick the pilot up inside the jetties. The point is, regardless of who suggested the arrangement, the vessel's master agreed without protest to pick up the pilot inside the jetties and there is no evidence of record to reveal that the Respondent, Captain Register, had any inkling that any question concerning the pick-up point had come up. The record reflects that, as far as he knew, the arrangement could have been suggested entirely by the master of the vessel. In any event, the Respondent knew that the boarding point inside the jetties had been agreed upon by the master of the vessel and had no reason to believe that that decision had not been entirely of the master's own volition. The Respondent had nothing to do with making the arrangements for where the pilot should board because he was off duty at home when the dispatcher of the pilot station called the vessel and the arrangement was made. Upon arriving at the station and learning of the boarding point, the evidence indicates that the Respondent had no reason to question that choice and the master's decision to pick up the pilot inside the mouth of the river.
The testimony of Captain Guillory was unrefuted in establishing that the ultimate responsibility for the safety of the ship falls upon the master and not on the pilot. Due to the rough weather conditions prevailing on February 26, 1987, the master of the M/V Fernpasset, made the decision to pick up the pilot inside the jetties, which he was entitled to do considering his legal duty to observe the safety of his vessel. See Hercules Carriers, Inc. v. Claimant, State of Florida, 768 F.2nd 1558 (11th Cir. 1985) Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2nd 1001, 1007 (4th Cir. 1968); Bunge Corporation v. M/V Furness Bridge, 558 F.2nd 790, 798, N.6, (5th Cir. 1977).
The testimony of Captain Guillory established further that rough weather conditions such as those prevailing on February 26, 1987 at the time the pilot boarding question arose, renders the boarding of a pilot offshore, under conditions prevailing at the mouth of the port of Jacksonville, hazardous. The pilot is required to board the vessel from the top of the cabin roof and catch a rope ladder on the up-roll of the pilot boat. If he grabs it on the down-roll and is hanging on the rope ladder when the vessel rises with the next swell, there is a great danger of being crushed by the two vessels. This is especially aggravated when there is a heavy sea running such as was the prevailing condition at the time in question. Captain Guillory's vessel, with approximately thirty-five feet of free board, might successfully board a pilot
under those conditions, if one were careful and made a lee for the pilot boat, especially if the master steered a more northerly course into the channel so that there would be more time to pick up a pilot before the southerly "set" bore the vessel down toward the rocks. A vessel of the Fernpasset's type, however, with a sixty-foot free-board extending approximately ninety percent of the vessels length, a much larger wind "sail area", can be set toward the rocks much quicker, thus making it risky to slow down to the four or five knot speed necessary to safely board the Pilot. Such speed reduction may give the strong southerly current, combined with the northeast wind, time to set the vessel sufficiently southward in order to place the vessel in danger of the rocks on the south jetty. Captain Guillory thus established that it was a prudent decision to elect to pick the pilot up inside the jetties but, as it happened, the master's handling of his vessel was faulty in that he came in from a position and course too far south (down-wind and down-current) so that he was not able to compensate for the southerly set in time to avoid the rocks. He should have approached the entrance channel from a more northerly course in order to compensate for the "set" condition.
In any event, based especially upon Captain Guillory's testimony, there is no evidence to indicate that the pilot, Captain Register, should have foreseen that the decision to board the pilot just inside the jetties was anything but a prudent one under the rough weather conditions prevailing at the time in question, given especially the configuration of the ship involved. The totality of the evidence does not reveal that the grounding of the ship resulted directly from the failure of a pilot to be aboard at the time, as opposed to the ship handling of the master of the vessel. In short, there has been no clear and convincing evidence presented that the Respondent, Captain Register, engaged in any unsafe piloting practice or disregarded safe piloting practices on the occasion in question.
Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore
RECOMMENDED that the Administrative Complaint against the Respondent, Captain Clifton A. Register, should be dismissed in its entirety.
DONE AND ORDERED this 9th day of December, 1988, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1988.
APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT:
Accepted
Accepted
Accepted
Rejected as subordinate to the hearing officer's findings of fact on this subject matter.
Reject as subordinate to the hearing officer's findings of fact on this subject matter.
Accepted in part, but not as dispositive of any material issue presented.
Rejected as subordinate to the hearing officer's findings of fact on this subject matter.
Rejected as subordinate to the hearing officer's findings of fact on this subject matter.
Accepted, but not in and of itself dispositive of any material issues presented.
Accepted, but not in and of itself dispositive of any material issues presented.
Accepted.
Rejected as not supported by the evidence of record, with the exception of the similarity consisting of the sea buoy being one and one-half miles from the entrance to the port between two rock jetties or breakwaters, which is not in and of itself dispositive of any material issues presented.
Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Even if Port Everglades was a port of essentially the same configuration as the Port of Jacksonville, which the record does not establish, the weather and sea conditions and condition and configuration of the vessel involved at the particular day and time in question has a great deal to do with consideration of what safe piloting practices are for such conditions.
Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as having little or no weight in finding facts and concluding the law applicable to this case, because of the subjective circumstances involved in deciding whether safe piloting practices have been observed, as delineated above.
RESPONDENT'S PROPOSED FINDINGS OF FACT
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
COPIES FURNISHED:
H. Reynolds Sampson, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750 (904) 488-0062
Gary A. Bubb, Esquire Toole, Bubb, & Beale, P.A.
25th Floor Southern Bell Tower Post Office Box 1500 Jacksonville, Florida 32201
Bruce D. Lamb, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Louella Cook, Executive Director Board of Pilot Commissioners Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Dec. 09, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 09, 1988 | Recommended Order | Dismissal recommended where no clear and convincing evidence presented that respondent engaged in unsafe piloting practices on the date in question. |
