STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3626

)

EDWARD M. CRAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on March 28, 1988, at Fort Lauderdale, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: H. Reynolds Sampson, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Margaret Mathews, Esquire

One Tampa City Center

201 N. Franklin Street, Suite 2600 Tampa, Florida 33602

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 24, 1987, when the Department of Professional Regulation (Department) filed an Administrative Complaint against Edward M. Cray. This complaint alleged Respondent was negligent or inattentive in the performance of his piloting duties by using excessive speed in an approach to a berth, by failing to observe a dangerous condition developing, by failing to take corrective action in time to avoid a collision, and by implementing a wrong action. Petitioner alleged this conduct fell below the acceptable standard of safe pilotage. On August 4, 1987, Respondent executed an Election of Rights which disputed the allegations of fact and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 20, 1987.

At the hearing, the Department presented the testimony of John C. Hanson, a consultant for the Department and an expert in marine incident investigation; David Therrien, an employee of the harbor master at Port Everglades; John A. Cummings, captain of the tug boat Captain Nelson; and Dr. Thomas Lee, an expert

in marine currents and tides. Petitioner's exhibits 1, 2, and 3 were admitted into evidence. Respondent testified and offered the testimony of William B. Thorup, Jr., an expert captain/pilot for Port Everglades. The transcript of the proceedings was filed on April 18, 1988, and the parties were granted leave until April 28, 1988, to file their proposed findings of fact and conclusions of law. Subsequently, the parties requested an extension of the time to file their proposed recommended orders and such request was granted. The extension gave the parties until 5:00 p.m., May 9, 1988, to file their proposals. The parties then filed proposals which have been carefully considered in the preparation of this Recommended Order. Specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. At all times material to the allegations, Respondent was a licensed pilot in the State of Florida having been issued License No. 0000025.

   
   

2. On January 15, 1986, Respondent boarded the ship Act 5 as her state pilot for approaching an intended berth at Port Everglades.

   
   

3. The Act 5 was over 700 feet long, had a single handed screw, a single rudder and was equipped with bow thrusters. The ship drew 34 feet at her stern on the date in question. The ship had a bulbous bow which protruded outwardly under the forward waterline.

   
   

4. A tugboat, the Captain Nelson, captained by John A. Cummings was beside the Act 5 to assist in the berthing maneuver.

   
   

5. The approach to Port Everglades is negotiated through a narrow canal. Vessels seeking berth proceed through the canal, past a jetties area, and into a turning basin. Once inside the basin a turn is required in order to bring a ship parallel to the intended berth.

   
   

6. On January 15, 1986, the Act 5 was to be berthed at a location on pier

   3 identified as berth 17. In order to approach berth 17 a sweeping turn to port must be made.

   
   

7. On that date the Captain Nelson was positioned off the starboard bow during the Act 5's swing to port. Once this swing had been initiated, the Respondent ordered the tug to proceed to the port stern quarter. It was intended that the tug would assist to breast the ship beside the docking area.

   
   

8. After the tug had begun its trip from starboard bow to stern, Respondent realized that the ship's swing would not be sufficient to bring her parallel to the dock. Accordingly, the Respondent ordered the tug to hook up and to pull at full throttle to slow the ship and bring her parallel. Additionally, since it was apparent the ship might collide with the dock, the despondent ordered the Act 5 to reverse at full throttle.

9. Despite the corrective efforts, the Act 5 did not swing sufficiently to port and her bulbous bow struck the underplatting of the dock at berth 17. The platting cracked and the fill behind it washed out. When the fill washed out, the road built on top collapsed and the dock eroded. Approximately sixty feet of dock surface was destroyed.

   
   

10. Unpredictable surface and subsurface currents in Port Everglades very dramatically affect docking procedures. The tides, which are repetitive, also affect docking maneuvers.

    
    

11. Given the fluctuating tides and currents within the Port Everglades turning basin, it is not uncommon for a ship's handling to be predictable.

    
    

12. Given the tide and current conditions known to Respondent on the date at issue, the collision was unpredictable and unforeseeable by a reasonably prudent pilot.

    
    

13. Given the times and speeds noted in the Act 5's "bell book," the Respondent approached the intended berth under prevailing standards used by other pilots at Port Everglades.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Rule 21SS-8.007(1)(e) and (k) , Florida Administrative Code, provides.

    
    

    1. Any act of misconduct, inattention to duty, negligence or incompetence, or willful violation of any law or regulation including the Rules of the Road, applicable to a licensed state pilot or certificated deputy pilot, or any failure to exercise that care which a reasonable and prudent pilot or deputy pilot would exercise under the same or similar circumstances may result in disciplinary action. Examples of acts which may constitute a violation may include, but are not limited to:

       * * *

       (e) Excessive speed.

       * * *

       (k) Any disregard of safe practice, whether intentional or

       unintentional which does not meet acceptable standards of safe pilotage.

       
       

16. Section 310.101(1)(e) and (k) , Florida Statutes, provides:

    
    

    1. Any act of misconduct, inattention to duty, negligence, or

       incompetence; any willful violation of any law or rule, including the rules of the road, applicable to a licensed state pilot or certificated deputy pilot; or any failure to exercise that care which a reasonable and prudent licensed state pilot or certificated deputy pilot would exercise under the same or similar circumstances may result in disciplinary action. Examples of acts by a licensed state pilot or certificated deputy pilot which constitute grounds for disciplinary action include, but are not limited to:

       * * *

       (e) Excessive speed

       * * *

       (k) Engaging in any practice which does not meet acceptable standards of safe piloting.

       
       

17. The parties have not disputed the law to be applied to this case.

    They differ solely as to the facts: whether or not Respondent used excessive speed in the approach to berth 17, whether or not he failed to realize the speed was too great, and whether he delayed and took an inappropriate corrective measure.

    
    

18. Petitioner's expert witness has not piloted vessels of similar size and draft within Port Everglades. Moreover, other than a conclusion that Respondent's excessive speed caused the collision, the expert did not testify that such conduct or a failure to correct such conduct fell below the standard of safe pilotage. Petitioner argues that the collision is, of itself, sufficient to prove negligence on Respondent's part. This presumption has been adequately rebutted. In contrast, Respondent's expert determined Respondent's conduct to be within the standard at Port Everglades and to be appropriate under the circumstances. Moreover, the unpredictable surface and subsurface currents may have interfered with the docking procedure.

    
    

19. Additionally, the tug captain who assisted in the berthing effort and the harbor employee who witnessed the incident, testified the speed of the Act 5 was typical for such maneuvers at Port Everglades. Moreover, the harbor employee testified that until the dock collapsed he did not realize the ship had made contact with the underplatting. This employee had presumed the fenders had absorbed any shock as in routine docking.

    
    

20. Under the circumstances of this case, Petitioner has not proved Respondent used excessive speed or exhibited conduct falling below acceptable standards of safe pilotage.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint against Respondent.

DONE and RECOMMENDED this 26th day of May, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 26th day of May, 1988.

APPENDIX

Rulings on Petitioner's, DPR/Board of Pilot Commissioners, proposed findings of fact:

1. Paragraphs 1, 2, and 3 are accepted.

   
   

2. With regard to paragraph 4, the times and speeds noted in the Act 5's bell book are estimates which are within a reasonable range for approaching berth at Port Everglades. Distances are in unsubstantiated estimates and should not suggest Respondent used excessive speed. Three witnesses testified the ship approached at a reasonable rate. Such direct evidence controls over speculative estimates. Accordingly, paragraph 4 is rejected.

   
   

3. Paragraphs 5 and 6 are accepted.

   
   

4. Paragraphs 7 and 8 are accepted.

   
   

5. With regard to paragraph 9, the cause of the collision is unknown. The ship did not swing to port sufficiently to become parallel to the dock. This lack of swing, coupled with the forward movement of the ship, resulted in the collision. As to why the ship did not continue its swing is speculative. Surface tides and currents as well as subsurface currents interfere with docking maneuvers and may have inhibited the swing.

   
   

6. With regard to paragraph 10, the tides and currents noted were only surface ones. The subsurface currents which run deeper and which might effect a ship the size and draw of the Act 5 were not measured or charted. With that clarification, paragraph 10 is accepted.

   
   

7. With regard to paragraph 11, it logically follows that Respondent's unforeseeable encounter would then serve as a warning to pilots involved in future docking procedures. That such pilots have benefitted from Respondent's incident does not suggest Respondent should have prejudged the problems. Accordingly, paragraph 11 is rejected as immaterial, irrelevant, and unnecessary.

Rulings on Respondent's proposed finding of fact:

1. Paragraphs 1-51 are accepted.

   
   

2. Paragraph 52 is rejected as argumentative.

   
   

3. Paragraph 53 is rejected a unnecessary, irrelevant or immaterial.

   
   

4. Paragraphs 54-58 are rejected as unnecessary, irrelevant, immaterial, or argumentative.

   
   

5. Paragraphs 59-62 are accepted.

   
   

6. With regard to paragraphs 63 and 64, the Act 5 did collide with the underplatting at berth 17. The impact was felt by the tug Captain. Whether the dock was poorly maintained (and should have withstood the impact) or whether the fenders should have absorbed the shock is speculative but the touching was established. However, such touching was not caused by excessive speed or conduct falling below acceptable standards of safe pilotage. With that clarification, the paragraphs 63 and 64 are accepted.

   
   

7. Paragraph 65 is accepted.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Margaret Mathews, Esquire One Tampa City Center Suite 2600

201 N. Franklin Street Tampa, Florida 33602

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Pat Guilford, Executive Director Department of Professional Regulation Board of Pilot Commissioners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 87-003626

Orders for Case No: 87-003626