The Issue Whether the Respondent failed to meet acceptable standards of safe pilotage as alleged in the Administrative Complaint and, if so, what penalty is appropriate.
Findings Of Fact Warwick G. Cahill (Respondent) is, and at all times material hereto has been, licensed as a harbor pilot by the State of Florida, license number SP 0000111. The Department of Business and Professional Regulation, Board of Pilot Commissioners, is the state agency responsible for prosecution of alleged violations of disciplinary rules applicable to harbor pilots. On July 28, 1993, the M/V Grecian Star (GS) left the dock at the CF Industries Terminal in the Port of Tampa, Florida. The GS is a Cypress flag vessel approximately 656 feet long, with and 81 foot beam and a draft of 32 feet 11 inches. The equipment and machinery on the GS were in good working condition. The Respondent piloted the outbound GS from the Port of Tampa, under the authority of his Florida State Pilot's license. He had boarded the ship at approximately 1:50 PM. Although the ship's Master is ultimately responsible for the safety of the ship, the Master will defer to the local pilot's knowledge and directional skills in navigating local waters. The ship departed from the dock approximately ten minutes after the Respondent boarded. The weather was good, with visibility of approximately eight miles. The sea was slick calm. Winds were from the northwest at not more than four knots. The port tide was at ebb. The current was variable but less than one-half knot. As the GS transited Tampa Bay, the Respondent made several slight course corrections due in part to drift, but the ship's travel was uneventful as it entered Egmont Channel. In the area of Egmont Channel buoys 11 and 12, the pilot boat arriving to permit the Respondent to disembark from the GS contacted the GS bridge by radio and requested that the placement of the port side pilot ladder be raised. The Respondent directed the third mate of the ship to attend to the placement of the pilot ladder. The third mate left the bridge. On of the responsibilities of the third mate is to monitor orders given by the pilot to the helm and to ascertain whether the orders have been followed. At all times during the transit of the GS, the Respondent gave verbal orders regarding the pilotage of the ship. The Respondent expected that such orders would be repeated to him. Orders which were not repeated would be delivered again. At no time during the GS transit of Tampa Bay into Egmont Channel did the Respondent give orders to the helmsman by hand motion or by any other gesture. All orders were delivered verbally to the helmsman by the Respondent and were repeated by the helmsman. At the time the ship was in the area of Egmont Channel buoys 11 and 12, the Respondent stood in front of the helmsman. At some point while still in the position, the helmsman and the Respondent briefly looked at each other. At or about the same time as the two looked at each other, the Respondent moved his left hand or arm. The evidence is clear that the Respondent gave no verbal order to alter the ships course at that point. The helmsman interpreted the "look" and the movement of the Respondent's left arm to indicate an order to turn the ship ten degrees to port. There is no evidence as to how the helmsman determined from a "look" and a gesture that the ship's course was to be altered by ten degrees. The helmsman testified that he verbally stated "port ten" prior to altering the ship's course. There is no evidence that any person on the bridge heard the helmsman repeat the supposed command. There is no evidence that, at any other time during the Respondent's pilotage of the GS, there was any difficulty in hearing any orders given by the pilot or repeated by the helmsman. The greater weight of the evidence fails to establish that the supposed command was verbalized by the helmsman. After standing in front of the helmsman, the Respondent walked to the chart table on which a chart of lower Tampa Bay was displayed and began to respond to questions of the GS Master. The chart table is located aft and on the starboard bulkhead of the wheelhouse. The conversation between the Respondent and the Master lasted between one and two minutes and consisted of a discussion related to the vessel's position, the disembarkation of the pilot, reported traffic, water obstructions, range markers and the monitoring of radio channels. At the time the Respondent walked to the chart table, the ship was on course in the center of the channel. No command was given to alter the course. No command was repeated by the helmsman. Based on the lack of command or response, and on the fact that the ship was on course and centered in the channel, it was reasonable for the Respondent and the Master to conduct their discussion. Based on the estimated speed of the ship at the time of the grounding, the ship moved no more than 1600 to 2000 feet during the conversation between the Respondent and the Master. Based on the beam of the boat and the width of the channel, the ship could move 300 feet to either side without incident. Upon completion of the discussion, the Respondent and the Master simultaneously noticed that the ship's course was incorrect and that buoys 9 and 10 were positioned off the starboard bow rather than dead ahead. The Respondent immediately stated "hard starboard rudder," directing the helmsman to take corrective action, but the ship ran aground on the south bank of Egmont Channel approximately two ship lengths past buoys 11 and 12. The accident caused no injury to person or cargo. No pollution resulted from the grounding. The next day, the GS was re-floated. Although the ship grounded while the Respondent was responsible for the navigation of the ship, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint filed against Warwick G. Cahill in this case. DONE and RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6170 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, not supported by the greater weight of credible and persuasive evidence. The evidence fails to establish that the Respondent intentionally "made" a gesture with his hand. 18. Rejected, not supported by the greater weight of credible and persuasive evidence. 22. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the conversation was initiated by the Master. 28-31. Rejected, subordinate. Rejected, irrelevant. There is no credible evidence that any crew member accept the "unusual movement of the vessel without question, though it is actually a result of pilot error." Rejected, irrelevant. There is no credible evidence that any crew member had only a rudimentary understanding of the English language or that such contributed to this incident. 37-38. Rejected, contrary to the weight of the evidence which fails to establish that the Respondent's "inattention" permitted the ship to ground. Respondent The Respondent's proposed findings of fact are rejected as not timely filed. COPIES FURNISHED: Susan J. Foster, Executive Director Board of Pilot Commissioners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Dept. of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 David Pope, Esquire Suite 1700 First Union Center 100 South Ashley Drive Tampa, Florida 33602
The Issue Whether Broward County should issue an Environmental Resource Permit (the "ERP" or "Permit") to Palm Beach Polo Holdings, Inc., for the construction of five finger piers as sized, configured, located and approved by Broward County's Proposed Permit issued in 2007?
Findings Of Fact The Port Laudania Property Port Laudania is a privately-owned marina basin (the "Marina Basin" or the "Basin") in Broward County. Located just off the Dania Cut-off Canal south of Port Everglades, the Marina Basin is not far from the Atlantic Ocean and the Intra-coastal Waterway that lies along all of Florida's east coast. There are no fixed bridges or other impediments to the passage of large sea-going boats and ships between the Basin and the Atlantic. The Marina Basin is an ideal spot to berth large vessels such as yachts and those used in the ocean-freight shipping business. PBPH owns the submerged lands in the western approximate two-thirds of the Basin as well as adjacent uplands. Together, these submerged lands and uplands constitute the parcel located at 750 N.E. 7th Avenue in the City of Dania (the "PBPH Parcel"). Immediately adjacent is a parcel owned by C-Term, a Florida general partnership. Located at 760 N.E. 7th Avenue in Dania, the uplands at the address and the approximate eastern one-third of the Marine Basin (the part not owned by PBPH) comprise the "C-Term Parcel." The PBPH Parcel and the C-Term Parcel make up the Port Laudania Property. Prior to a conveyance in 1987 that divided the Port Laudania Property into two parcels, the property had been under common ownership. The entire property was owned in fee simple by Dennison Marine, Inc. ("DMI"). Just prior to the division of the property into two parcels, DMI conveyed an easement that would ensure that owners and lessees of both parcels would have unhindered access from the Dania Cut-off Canal to their respective parcels: a Cross-use Easement of Ingress and Egress (the "Cross-use Easement"). The Cross-Use Easement for Ingress and Egress On June 29, 1987, DMI executed the Cross-Use Easement.2/ Earlier, DMI had divided the Port Laudania Property into two parcels (Parcel I and Parcel II in the Cross-use Easement, referred-to in this order mainly as the C-Term Parcel and the PBPH Parcel, respectively) and had entered into an Agreement for Deed and Lease with Port Denison, Inc., for the purchase and sale of one of the two parcels. The transaction subject to the agreement had not yet occurred so that DMI remained the sole owner of the Port Laudania Property on the date the Cross-Use Easement was established. The Cross-Use Easement contains the following: WHEREAS, both Parcel I and Parcel II share an inlet off of Dania cut-off Canal, . . . WHEREAS, it is to the mutual advantage of the present and future owners, tenants, invitees, etc. of both Parcel I and Parcel II that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress; NOW THEREFORE, . . . Denison Marine, Inc., with the consent of Port Denison, Inc., does hereby for itself and its successors and assigns, give and grant to the future owners, tenants and future tenants of all or any portion of the Property, their respective customers, employees, agents, invitees, successors and assigns, a non-exclusive easement for ingress and egress over and across the inlet as described in Composite Exhibit "C" hereto. This non-exclusive easement shall run as a covenant with the land and constitute [sic] an appurtenance thereto. Petitioners' Ex. 1 at 0164-0165. Composite Exhibit "C" of the Cross-Use Easement contains sketches and descriptions of both the "Easterly Portion of the Marina," see id. at 170-171, (the C-Term Parcel) and the "Westerly Portion of the Marina," see id. at 172-173 (the PBPH Parcel.) The descriptions include the entire Basin except for that occupied by the boat lift in the northern end of the Basin.3/ Neither the legal descriptions nor the surveys attached to the Cross-Use Easement depict any finger piers, docks or pilings in the Basin. Under the Cross-Use Easement, the ability of the parties to amend the rights granted therein is governed by the following: This Agreement may be altered, amended or terminated by written document executed by all the then fee simple title holders of all portions of the Property and then record holders of any first mortgages then encumbering any of said lands and recorded in the public records of Broward County, Florida. Petitioners' Ex. 1, second page, BK 1490 PG0165. C-Term has not agreed to amend the Cross-Use Easement to permit construction of the docks contemplated by the 2007 Notice of Intent and Proposed Permit. The rights conferred by the Cross-Use Easement are property rights that govern the use of the Basin. The Basin and the Cut-off Canal The Basin is man-made and frequently referred-to in documents that relate to it as an "inlet" off the Dania Cut-off Canal. Small and medium-sized pleasure crafts, large yachts, mega-yachts,4/ and commercial cargo vessels, some of which are as lengthy as 250 feet regularly pass through The Dania Cut-off Canal in the area of the Basin immediately south of its mouth. Aerial photographs show that the Basin was excavated in the early 1960's. Shortly after excavation, the Port Laudania Property was used as a commercial cargo terminal. Since at least 1967, the Basin has accommodated cargo vessels with lengths up to 250 feet give or take 15 feet. Petitioners' Exhibit 145 is an aerial photograph that shows vessels of approximately 250 feet on both sides of the Basin. For the approximately 250-foot vessel on the east side of the Basin (the C-Term side), the margin of error in measuring the vessels from the aerial is "[p]robably 10 feet, plus or minus." Tr. 1049. G&G has operated numerous vessels in the Basin at lengths of over 200 feet. Of the seven vessels that G&G owned or operated at the time of hearing the maximum length is 234 feet. From April 1999 to March 2006, vessels owned or operated by G&G have struck finger piers or docks on the PBPH side of the Basin "a handful of times." Tr. 893. None of the details of these collisions was produced at hearing. Standard procedure for such incidents would have been to file an internal report or a captain's report, but Mr. Ganoe could not remember whether a report was filed.5/ For his part on the PBPH side of the Basin, Mr. Straub is not aware of any G&G vessels hitting boats moored at the finger piers on the PBPH side of the Basin, indicating that the collisions were not serious. In contrast to evidence that collisions have occurred is evidence from one frequent navigator of the Basin, Jim Steel of Steel Marine Towing. With the exception of the years in college, Mr. Steel has towed vessels in the area of Broward County consistently since 1988 when he began towing with his father at the age of 12. The range in length of the vessels, both commercial and private, that Mr. Steel has towed is from 120 to 250 feet. Mr. Steel has towed hundreds of vessels in and out of the Basin. During those times, he has observed various dock and finger pier configurations. He never collided with the docks on the PBPH side of the Basin with his tugboat or the vessels he towed even when the fifth finger pier was 150 feet long during the time period from 1995-96. Mr. Steel described the Dania Cut-off Canal in the vicinity of the Basin as a congested area with a number of facilities that cater to marine traffic. Large motor yachts (100 feet to 150 feet in length), mega-yachts (longer than 150 feet), commercial vessels (up to 250 feet), smaller pleasure craft as well as other smaller boats comprise the traffic seeking access to facilities along the canal. The facilities include Harbortown Marina across the canal from the Basin, which has some spots for large motor yachts and berths for hundreds of smaller boats up to 90 feet. Facilities in the area that serve mega- yachts are Director's Shipyard, Powell Brothers, and Playboy Marine. In the last five years, new facilities have been opened along the canal for smaller pleasure craft: American Offshore, Dania Beach Club and Dusty's. Mr. Steel described their function, "[t]hey are . . . what you would call rack and stack," (tr. 1562) storing boats sized from 20 to 40 feet pulled in an out of the water and stacked with a forklift. There are eight or nine such facilities west of the Basin. Mr. Steel estimated each of these facilities house at least several hundred boats. Mr. Steel summed up the traffic in the canal: "Some bright sunny days, it is extremely congested, some days it is not as congested, but there's always traffic there." Tr. 1550. 2001: The Delegation Agreement On May 22, 2001, an agreement was entered by three parties. Entitled "Delegation Agreement Among the Florida Department of Environmental Protection, The South Florida Water Management District and Broward County" (the "Delegation Agreement"), it delegated to Broward County's EPD "the authority for permitting, compliance, and enforcement on behalf of the Florida Department of Environmental Protection and the South Florida Water Management District programs." Joint Pre-hearing Stipulation, para. 1, at 11, 12. "Section 11E. of the Delegation Agreement provides that permits issued by the County under the Delegation Agreement 'shall consolidate in a single document the permit under part IV of Chapter 373 of the Florida Statutes, and any required Environmental Resource License' ("ERL") required under Chapter 27 of the Broward County Code of Ordinances ("BCC" or "Code").[']" Joint Pre-hearing Stipulation, para. 2, at 12. In April of 2002 or thereabouts, Broward Yachts submitted an after-the-fact application to EPD for an ERP and an Environmental Resource License (the "Dock Application"). "The Dock Application sought approval to install six total docks [finger piers] comprised of five [finger piers composed of] floating docks in the Basin, with lengths ranging from 150 feet to 190 feet, and one dock, in the canal parallel to the seawall, with a length of 240 feet." Joint Pre-hearing Stipulation, para. 4, at 12. Although the docks were on the PBPH Parcel of the Port Laudania Property, the application was not PBPH's, the owner; instead it was submitted by Broward Yachts, a PBPH tenant. PBPH and C-Term Tenants From November of 1998 to March of 2005, Broward Yachts, Inc. ("Broward Yachts")6/ leased the PBPH Parcel from PBPH for the purpose of manufacture and sale of private yachts and boat dockage. Broward Yachts sold certain of its assets to Lewis Property Investors, Inc., under an Asset Purchase Agreement dated March 2, 2005. On March 8, 2005, Lewis Property Investors' assigned its interest in the Asset Purchase Agreement to Broward Marine. Broward Marine is a Florida limited liability company, formerly engaged in the business of manufacturing, selling and servicing private yachts and activities that constituted operation of a marina on the PBPH Property. Broward Marine leased the PBPH Property starting in March of 2005. It continued to occupy the property under a lease-purchase option agreement with PBPH until June of 2009. C-Term's Property is the subject of a tenancy with G&G, an ocean-freight shipping company. G&G, therefore, has shared the Marina Basin with Broward Marine in recent years. Broward Marine's Departure In March 2009, Broward Marine signed an early termination of its lease with PBPH caused by Broward Marine's failure to pay rent. Broward Marine has not been a tenant or otherwise in possession of the PBPH Property since approximately November, 2009.7/ The termination of Broward Marine's lease was effective on June 15, 2009. After termination of the Broward Marine lease, the PBPH Property was re-let to Broward Shipyards, Inc., an entity that is not a party to this proceeding. At the time of the termination, Broward Marine's interests in the 2002 Dock Application and a revision of the application in 2003 (the "2003 Revised Application") were assigned to PBPH.8/ In the meantime, PBPH has pursued the application which had its origin in a complaint about the unpermitted structures and a warning notice issued by the County in 2002. See paragraph 35., et seq., below. The application for the license and permit was for floating docks. Floating Docks The floating docks used by Broward Yachts and others on the PBPH side of the Basin generally come in sections of 8-10 feet. They are secured to existing pilings in the Basin by a collar which slides up and down the piling or, as Mr. Lewis put it at hearing, "[t]hey float up and down . . . as the tide comes in and goes out." Tr. 204. The top of the piling emerges from the water and the rest of the piling extends downward generally into the bedrock at the bottom of the Basin. A series of floating docks make up a finger pier. Finger piers, the structures authorized by the Proposed Permit, can be lengthened or shortened by adding or removing floating docks based on business needs.9/ The ability to easily lengthen or shorten a finger pier in response to the business needs of PBPH or its tenants accounts for one of the main evidentiary features in this proceeding: the many finger pier configurations that appear in aerial photographs over the years and, in particular, since 1998 when PBPH came into ownership of the PBPH Parcel. The floating docks have been constructed of wood and Styrofoam. Those that PBPH seeks to install under the Proposed Permit will be "concrete bathtubs," tr. 580, which "work just as well and are a lot more permanent." Id. Structures made of concrete are of much likely to cause damage in the event of a collision with a vessel than are floating docks made of wood and Styrofoam. Warning Notice and 2002 Dock Application On January 22, 2002, the EPD visited the PHPB Property in response to a complaint about unlicensed docks. Julie Mitchell (then known as "Julie Karczyk"), a Natural Resources Specialist with the County was present on the property during the visit to conduct an inspection. In a Case Summary admitted into evidence, Ms. Mitchell documented the visit with an employee of the State Department of Environmental Protection. The two visitors asked the manager of the property to provide a copy of permits and licenses for the docks on site. If he could not provide them he was advised of the necessity to apply for them. At the time of visit, there were four finger piers composed of floating docks on the PBPH side of the Basin. The four piers protruded into the Basin at an angle similar to the angle of the finger piers shown in the drawings approved by the Proposed Permit. These four docks (from north to south) had lengths of 117, 130, 150 and 150 feet respectively and were each 7.5 feet wide. The northernmost dock was separated from the second dock (the dock immediately to its south) by 52 feet; the second dock was separated from the third by 60 feet; and the third from the fourth by 55 feet. There was also a fifth structure. It may have been a fifth finger pier, but, because of its width which is substantially more than the 7.5 feet, see Petitioners' Ex. 114F (an aerial photograph with a "fly date" of January 2002), it is more likely to have been "work platforms to construct the docks." Tr. 114. Whatever its function, the fifth structure did not protrude into the Basin as far the four others. It was "[r]ight up against the seawall." See id., Petitioners' 125 at 5, and tr. 114. Ms. Mitchell checked the County records and could not locate a license or permit for finger piers or other structures in the Basin. No evidence of a license or permit was provided by either PBPH or any of its tenants. The status of the finger piers and floating docks today remains the same: unlicensed and unpermitted. The County required Broward Yachts as the tenant of the PBPH Property to submit an after-the-fact permit and license application if it wished to keep the structures. Broward Yachts submitted its application for an ERP and Environmental Resource License ("ERL") to the County (the "2002 Dock Application") on April 16, 2002. In the meantime, Broward Yachts installed an additional finger pier in the Basin angled from the seawall just as the four piers observed by Ms. Mitchell. The installation occurred without County authorization. On May 2, 2002, the County issued Warning Notice No. WRN02-0125 (the "Warning Notice"). Directed to both Broward Yachts and PBPH, the Warning Notice contains one count. See Petitioners' Ex. 7. The count reads as follows (bold type in original): Respondent: Broward Yachts, Inc. Respondent: Palm Beach Polo Holdings, Inc. Violated section 27-333(a)(1), BCC, which states: "No person shall conduct or cause to be conducted mangrove alteration, construction, demolition, dredging or filling in regulated aquatic or wetland resources, except in accordance with a currently valid environmental resource license issued by DPEP and all general and specific license conditions therein." By: constructing docks and installing pilings without a valid DPEP Environmental Resource License. Corrective Action: The respondent must apply for an after- the-fact license from the Department for the dock construction and piling installation. The license will not be issued until the respondent obtains a South Florida Water Management District Right-of-Way permit for the pilings located within the Dania Cut-off Canal. Correct within 14 days of this notice. Id. The 2002 Dock Application was filed on April 16, 2002 (prior to the Notice of Warning.) In the meantime and subsequent to the Notice of Warning, the County conducted a review of the 2002 Dock Application. The 2002 Dock Application The 2002 Dock Application was signed by Paul Bichler of Tri County Marine. Mr. Bichler and his company are listed on the application as the "Entity to Receive Permit," see Respondents' Ex. 3 at 3-4, and Bill Thomas of Approved Permit Services, Inc., is listed as the "Agent Authorized to Secure Permit." Id. The owner of the land is shown as Richard Arnold, General Manager of Broward Yachts. Mr. Arnold signed the application in order to give Mr. Thomas the authority to act as the agent of Broward Yachts in securing the permit. There is no mention of PBPH in the application. Part 8 of the 2002 Dock Application requires the applicant to describe in general terms the proposed project, system or activity. Filled in is: "Install Floating Docks!" Id. at 3-5. No other description is offered. The application contains as attachments a map of the site showing the Port Laudania Property and a drawing of Parcel A at the site (the PBPH Parcel.) The drawing shows six finger piers to be installed. Five are attached to the western seawall of the Port Laudania Property at such an angle so that they lie in the Basin in a southwesterly direction (much the same as the four finger piers observed in January of 2002 by Ms. Mitchell). The lengths of the five range from 150 to 190 feet. The fourth and fifth finger piers are proposed to be 180 feet and 155 feet in length, respectively. The sixth pier lies roughly parallel to the southern terminus of the bulkhead on the PBPH Parcel and extends into the mouth of the Basin. Unlike the other five, the sixth structure is not attached to the western seawall. To the south of the bulkhead and with no attachment to the bulkhead, it runs 240 feet in length. At its eastern end, it overlaps the boundary between the Basin and the Dania Cut-off Canal and protrudes into the canal. Id. at 3-9. The drawing also depicts pilings associated with each of the six structures. The floating docks applied for in the 2002 Dock Application were to be made out of Styrofoam and wood. Permitting Criteria/County Review The County's evaluation and processing of the 2002 Dock Application was conducted appropriately pursuant to the Delegation Agreement. Section (1) of Florida Administrative Code Rule 40E-4.30210/ (the "ERP Additional Conditions Rule") requires an applicant to "provide reasonable assurances that the construction, alteration, operation, maintenance, removal, and abandonment of a system" will meet conditions contained in subsections (a) through (d).11/ For systems located in, on, or over surface waters that are not Outstanding Florida Waters, such as the finger piers and floating dock systems proposed by PBPH, reasonable assurances must be provided that the activity "will not be contrary to the public interest [the "Public Interest Test"] . . . as determined by balancing"12/ seven criteria listed in the ERP Additional Conditions Rule: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangerment or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Of the seven criteria, above, the two deemed most relevant and determinative for the EPD in processing the 2002 Dock Application were 1., and 3., that is, whether the activity will adversely affect public safety, the property of others, and navigation. The County considered the proposed sizes, locations and configuration of the docks as shown in the drawing attached to the application. It had no navigational experts on staff and did not consult with outside navigational experts. Nonetheless, the County considered the nature of the use and whether it would adversely affect safety and navigation. The County also considered an objection to the location of certain pilings and a "future floating pier along the south edge of the basin at Port Laudania." Petitioners' Ex. 8 at 4. The objection had been lodged by the Port Everglades Pilot's Association in a letter dated May 1, 2002: Port Everglades Pilots are responsible for insuring the maximum level of safety of commercial vessels transiting the water of Port Everglades and Port Laudania. * * * I am writing to you in reference to some pilings that have been driven by Broward Marine for what appears to be a future floating pier along the south edge of the basin at Port Laudania in Broward County, Florida. This is the basin that is shared by Broward Marine and G&G Shipping and located within the City of Dania Beach. These pilings are affecting the safe navigation of commercial vessels that have already been using the basin at Port Laudania for many years. Vessels docked at this new pier will pose additional risk to navigation. * * * I would like to go on record stating that the location of these pilings and potential pier is not satisfactory as it hinders the navigation of commercial vessels using the basins at Port Laudania. Id. The letter is signed by Captain James J. Ryan, Managing Pilot for the Port Everglades Pilots' Association. The County acknowledged receipt of the application in a letter dated August 16, 2002, and informed Broward Yachts' agent that the "application for license is incomplete." Petitioners' Ex. 8. The letter requested prompt submission of the information listed on an attached sheet and warned that failure to submit it within 60 days of the request could result in denial. Two items were found omitted or incomplete in the application. The first was a "South Florida Water Management District right-of-way permit for the pilings located within the Dania Cut-off Canal." Petitioners' Ex. 8 at 2 of 3. The second was a response to the navigation issue posed by the Port Everglades Pilot Association. Id. The County's letter advised that upon a showing of resolution of issues posed by the omissions, the Department would process the application as an ERP since the applicant was allowed by a state administrative rule to apply for an ERP concurrently with an ERL. To that end, the letter requested payment of an additional $700 fee. Id. Four other items were also requested for submission. Five months later, Broward Yachts' agent wrote Ms. Mitchell listing seven responses as "the additional information you requested." Petitioners' Ex. 9. With regard to Item 2, the letter states: 2. I am working with Dan Boyer who is handling the Right of Way permit @ SFWMD, I am also addressing same issue with him, if I can demonstrate that a boat when moored at the proposed dock will not extend more than 25% into the canal, he will recommend to the Board of Governors that the project be approved. I am waiting for a signed and sealed survey to show the exact width of the waterway at this location. Petitioners' Ex. 9. With regard to Item 3, the agent responded, "[c]heck enclosed." The letter did not respond to all the requested information. For example, with regard to requested information concerning the anticipated use of the dock proposed within the Dania Cut-off Canal, whether boats would be moored on both its sides, and the anticipated length and draft of the boats, the agent responded, "I will need to get back to you about this one!" Id. Together with a memorandum dated July 21, 2003, the agent submitted revised drawings for the permit (the "2003 Revised Dock Application" or the "Revision"). The Revision removed any portion of the structures or pilings from the Dania Cut-off Canal in order to avoid the requirement for a SFWMD Right-of-Way Permit. Instead of the six finger piers shown in the 2002 Dock Application, the Revision showed seven. Six were similar to the five that angled into the Basin in a southwesterly direction from where they touched the western seawall. The six piers ranged from 120 feet in length to 150 feet in length. The seventh was similar to the sixth finger pier in the 2002 Dock Application but was depicted as being only 60 feet in length. It no longer protruded into the Dania Cut-off Canal. See Petitioners' Ex. 10 at 2. A memorandum to the file dated August 11, 2003, shows that Ms. Mitchell faxed the drawings in the 2003 Revised Dock Application to the Port Everglade Port Association. The memorandum reported that Captain Ryan responded by saying "he no longer had any objections to the project because the structures had been removed from the ROW [of the Dania Cut-off Canal]." Petitioners' Ex. 11. The memorandum also reported that Captain Ryan stated that there still may be navigational and safety concerns with the proposed pier lengths and locations, and that there may be special circumstances for ships wanting to use the basin such as, navigation during slack tide only, daylight only, and other factors that would exacerbate the concerns. Six weeks or so later, Ms. Mitchell signed a letter from the County. The letter, dated September 29, 2003, advised Broward Yachts that the additional information submitted in response to the January 2002 request had been received. It also advised that the project required an Environmental Resource License (in addition to the ERP) and that the application for such a license had been received. To fully evaluate the project, additional information was needed. This second request for additional information consisted of one item: [1] A Cross Access Agreement (attached), recorded on October 27, 1987, states that "the entire inlet be available to the owners of the other parcel for the purposed (sic) of ingress and egress." The Department has received objections from the adjacent property owner that the proposed docks, specifically the most southern 150-foot-long dock, may hinder the navigation of commercial vessels using the basin. Please provide evidence that the proposed docks will not negatively affect the safety and navigation of vessels using the basin. Petitioner's Ex. 12, Completeness Summary, Environmental Resource License Application at 2 of 2, (emphasis added.) The additional information requested was not provided by Broward Yachts or any other party. On October 6, 2003, Ms. Mitchell forwarded a copy of the Cross-use Easement to the County Attorney's Office and asked for it to be reviewed "to confirm that the [easement] pertains to both facilities [the applicant's and G&G's] and that G&G has a basis for their objection." Petitioners' Ex. 13. The objection by G&G was expressed as: "the most southern proposed finger pier will hinder [G&G's] ability to safely navigate their vessels." Id. Attached is a drawing that depicts seven docks. Opinion of the Broward County Attorney's Office In response to Ms. Mitchell's request, an opinion of the Broward County attorney's office was issued on October 31, 2003. The opinion addresses two questions: first, does the Cross-use Easement pertain to both facilities operated by Broward Yachts and G&G; and, second, does G&G have a basis for its objection. Both questions were answered in the affirmative with the following elaboration on the second question: The Easement includes granting a non- exclusive right to the successors of Port Denison, Inc. to use "all or any portion of the Property . . . for ingress and egress over and across the inlet as described in Composite Exhibit C. . ." The Property referred to in Exhibit A includes all of Parcels I and II. Composite Exhibit C is made up of a sketch and legal description of the easement area, with each Parcel having its own description and sketch. The physical structures referred to that limit the easement are the wetface of the bulkhead and the boat hoist structure. The easement rights granted are not similarly limited by reference to docks or piers that may have existed around the time that the easement was granted. This reading of the easement is consistent with the intent of the parties, as clearly reflected in the last "Whereas" clause which reads: " . . . it is to the mutual advantage of the present and future owners, tenants, invitees, etc. that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress." Since G&G Shipping's objection is related to the use of the inlet for ingress and egress with reasonable reference to navigation safety, and G&G Shipping accommodates uses that it does not anticipate will interfere with such activities, its objection to the license application has a basis in its easement rights. While the additional correspondence from Broward Yachts dated October 11, 2003, refers to an undated photo showing floating docks that are asserted to exist "around the time that the agreements were drawn-up for cross access," this photo doesn't control or limit the terms of the Easement, which grants the use of the entire inlet to both parties. Petitioners' Ex. 16 at 1-2. Another RAI On December 16, 2003, the County sent another request for information (RAI) to Broward Yachts (the "December 16, 2003 RAI." The request stated, "[y]our response dated October 14, 2003, does not adequately address the navigational and safety concerns stated in our letter [of September 29, 2003]." Petitioners' Ex. 17. The December 16, 2003, RAI referenced the County attorney's October 31, 2003, Opinion which "concluded that G & G Marine, Inc., does have a legal basis for their objection to the docks." Id. The December 16, 2003, RAI concluded: [T]he Department has not received reasonable assurances that the proposed docks will not negatively affect navigation and safety, nor have we received a response regarding the objections. It is the intent of this letter to inform Broward Yachts, Inc. (applicant) and Mr. Bill Thomas (agent) that the license application will be closed, pursuant to Section 27- 55(d)(4), if all requested information is not provided within ten (10) days of the receipt of this letter. Id. Broward Yachts requested an additional 90 days to provide the information. The request was granted. A second request to extend the time for providing the information another 90 days was denied by the County. The County Holds its Position Correspondence dated July 8, 2004, from Larry Zink, Esquire, requested reconsideration of the County's October 31, 2003, Opinion. The County responded in a letter dated July 21, 2004. See Petitioners' Ex. 22. The July 21, 2004, letter refers to "additional information, such as Mr. Denison's Affidavit and references to Florida case law," id. and then concludes: After consideration and based upon the Easement, Broward Yachts' letter of October 11, 2003, [Mr. Zink's] letters of May 5, 2004, May 21, 2004, and July 8, 2004, Mr. Denison's affidavit, Florida law, and G&G Shipping's objections dated November 5, 2003 and April 13, 2004, the conclusion that G&G has a basis for its objection to the Project is still correct . . . . Id. The July 21, 2004, letter addresses Florida Law with regard to the Cross-Use Easement: Florida Law: You have asserted that "[t]he Florida Court's have held that to determine the scope of an easement the Court's attempt to ascertain the intent of the parties in light of the surrounding circumstances at the time the easement was created," referencing the cases of Hillsborough County vs. Kortum and Florida Power Company vs. Silver Lake Homeowners Assn. However, the following more completely summarizes the relevant case law standards: The construction or interpretation of an easement is not evidentiary; it is a matter of law. Hillsborough Co. v. Kortum, 585 So.2d 1029 (Fla. 2nd DCA 1991), rev. denied, 598 So.2d 76 (Fla. 1992). The determination of the extent and nature of an easement granted or reserved in express terms by deed depends upon a proper construction of the language of the instrument, for an examination of all of the material parts thereof, and without consideration of extraneous circumstances. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (1940). An easement holder has the right to do what is reasonably necessary for the full enjoyment of the easement, but the right must not be increased to any greater extent than reasonably necessary and contemplated at the time the easement was created. Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328 (Fla. 1954). However, rights of the owners of an easement are not absolute and unlimited. The owner of the servient estate may use [the] land, including the easement, in such a way that will not interfere with the easement owner's right of passage. Tortoise Island Communities, Inc. v. Roberts, 394 So.2d 568 (Fla. 5th DCA 1981). (String citations have been omitted for brevity.) As you may know, the Circuit Courts of Florida have exclusive original jurisdiction over all actions involving title and boundaries of property. See Section 26.012(2)(g), Florida Statutes. Therefore, it is the Seventeenth Judicial Circuit Court that has jurisdiction and authority to determine the relative title interest rights of Broward Yachts and G&G in relation to the Project. The Office of the County Attorney respectfully declines to act in a role which is the proper jurisdiction of that Court. Within the limited scope of the previous and instant reviews, it is merely apparent that G&G objects to the Project and holds a title interest which, on its face, could be negatively affected by the Project. Therefore, it has a basis for its objection. Id., paragraph 2, at page 2 of 3 (emphasis added.) The County determined that Broward Yachts had not provided reasonable assurances that the Project would not adversely affect safety and navigation and would not violate the Cross-Use Easement. In light of the determination, the County sent a memorandum on July 21, 2004, see Petitioners' Ex. 23, requesting such assurances (the "July 21, 2004, RAI"). The July 21, 2004, RAI recognized that the issue with regard to the Cross-Use Easement was the subject of litigation between Broward Yachts and G&G Marine, but in the meantime requested reasonable assurances with regard to the navigation and safety issues or "have your client amend its application to resolve this concern." Id. As with the December 16, 2003, 10 RAI, the July 21, 2004, RAI was required to be answered in 10 days. The County hoped that a response would provide guidance from a navigational expert that the new docks would not affect the ability of other vessels to come in and out of the Basin. Denial and Petition for Review By the end of January 2005, the ten-day period for submitting additional information relative to the 2003 Revised Dock Application had expired. No information relative to safety and navigation concerns or compliance with the Cross-Use Easement had been submitted. By letter dated January 31, 2005 (the "Application Denial"), the Broward County EPD announced its decision to deny the application based on a lack of "reasonable assurance that the proposed docks will not negatively affect navigation and safety, nor violate the Cross-Use Easement . . . ." See Joint Pre-hearing Stipulation, para. 7 at 13. The County's intent in issuing the Application Denial was to deny both the ERL and ERP. The parties stipulated to what happened next: Broward Yachts filed a Petition for Review of Final Administrative Determination, Environmental Resource License Application No. DF03-1121, Environmental Resource Permit Application No. 06-0194386-001 (the "Administrative Review Petition") with EPD on February 7, 2005, challenging the denial of its "license and permit applications." The Administrative Review Petition invoked the procedures of Chapter 27, BCC. Joint Pre-hearing Stipulation, para. 8 at 13. The Administrative Review Petition did not invoke the procedures of Chapter 120, Florida Statutes. Pursuant to an internal procedure, the Administrative Review Petition was reviewed by the Department Director. After an independent review, the Department Director upheld the denial. That decision was communicated to Broward Yachts in a letter dated March 11, 2005, signed by Eric Myers, Director of the Broward County EPD. See Petitioners' Ex. 41. The March 11, 2005, letter proposed a compromise that related to an aerial photograph taken at roughly the time of the submission of the 2002 Dock Application. The photograph showed four finger piers ranging in length from 130 to 150 feet. The County offered to permit such a configuration if Broward Yachts modified its application. Broward Yachts was apparently unwilling to do so. Broward Marine Involvement The denial of the 2002 Dock Application was directed only to the application filed by Broward Yachts. Likewise, the Administrative Review Petition was filed solely by Broward Yachts. In March of 2005, however, Broward Marine took over the possession and operation of the PBPH Property from Broward Yachts. It also purchased the assets of Broward Yachts, including the 2002 Dock Application and the 2003 Revised Application. Response to the County's Proposal In June of 2005, the County met with representatives of Petitioners to discuss acceptable dock configurations. Petitioners advised that they would accept a configuration consisting of four docks extending into the Basin at a southeasterly angle and that they would be amenable to a fifth dock parallel and immediately adjacent to the southern portion of the PBPH bulkhead. The County presented the proposal to Mr. Zink, counsel for Broward Yachts, Broward Marine and PBPH in a letter dated July 11, 2005. Mr. Zink responded by letter dated July 14, 2005. The letter references: "Broward Yachts, Inc. - Floating Docks" even though at the time the 2002 Dock Application and the 2003 Revised Dock Application had been assigned to Broward Marine. The one paragraph letter reads: I am in receipt of Michael Owens July 11, 2005 letter regarding the above matter. Though my client does not agree the 2002 aerial photos are historically representative of the number of floating docks, Broward Yachts is submitting herewith a revised drawing dated July 13, 2005 which accepts what is proposed in paragraph two (2) of Mr. Ownens July 11, 2005 letter. Petitioners' Ex. 54, (emphasis added.) The revised drawing, that was neither signed nor sealed, was attached to Mr. Zink's letter. It shows five floating docks "ALL 7'6" WIDE," id. at second page, four of which are angled into the Basin in a southeasterly direction, none of which are more than 150 feet in length. It also shows a fifth dock that lies immediately adjacent to the eastern seawall of the bulkhead on the PBPH property so that it does not angle into the Basin at all. It is 200 feet long and stops short of the south end of the bulkhead so as to be well clear of the Dania Cut-off Canal. Mr. Zink's acceptance of the proposal on behalf of Broward Yachts did not, however, lead to a resolution. The County asked for two additional matters: signed and sealed drawings from an engineer and that PBPH, as the owner of the property, become the applicant. PBPH Steps In Through a letter dated October 20, 2005, Mr. Zink agreed to the two additional demands of the County. The letter enclosed "sealed drawings for the above applications." Respondents' Ex. 6. The applications were referenced in the letter as ERL and the ERP for "Broward Yachts - Floating Docks," but the letter stated, "[a]s per your E-mail of August 25, 2005, a Revised Application identifying Palm Beach Polo Holdings, Inc. as the property owner will be submitted to you directly by my client." Id. The signed and sealed drawings that were submitted did not reflect the proposal made by the County and agreed to by Mr. Zink on behalf of his client in July of 2005. The drawings showed one finger pier immediately alongside the western seawall of the bulkhead and five finger piers composed of floating docks that angled into the Basin. The signed and sealed drawings showed six finger piers instead of five and five finger piers that angled into the Basin instead of the four envisioned by the agreement finalized by Mr. Zink's letter on July 14, 2005. In a letter dated November 11, 2005, and received on November 16, 2005, that was characterized by Mr. Zink as "a follow up on my October 20, 2005, letter to [the County]," Petitioner's Ex. 7, Mr. Zink enclosed two documents: "1) Original executed Application on behalf of Palm Beach Polo Holdings, Inc. 2) Drawing prepared by Frank L. Bennardo, P.E., depicting the docks." Id. The letter dated November 11, 2005, was not accepted for reasons outlined in an e-mail message from Julie Mitchell to Eric Myers. See Petitioners' Ex. 69. In the wake of the message, the County continued to process the 2003 Revised Dock Application. In a letter dated December 16, 2005, with the same reference line used in his earlier correspondence ("Re: Broward Yachts, Inc. - Floating Docks"), Mr. Zink submitted "(2) Revised Drawings prepared by Frank L. Bennardo, P.E., Inc. dated 11/30/05 depicting the five (5) finger piers as per the July 13, 2005, conceptual drawing approved by DPEP." Petitioners' Ex. 75. As represented by Mr. Zink, the drawings matched the configuration proposed by the County in its letter of July 11, 2005. At this point in the series of events initiated by the Notice of Violation in 2002, the parties would have been justified in thinking that an agreement had been reached, that the ERL and ERP could be issued and that all files on the matter of the Broward County EDP could be successfully closed. Mr. Lewis on behalf of Broward Yachts expressed the sentiment at hearing: [I]n the course of that same period, [Mr. Ganoe] was concerned about turning vessels where the fifth dock was. And we put a buoy in the basin where the length of a boat extending beyond that pier would be, he had given us a radius of what he wanted. We had McLaughlin Engineering take that, and I can't remember how many feet that he wanted clear in that area, plotted it on a drawing, went over it with him, thought we had an agreement. Tr. 181 (emphasis added.) Between the County's July 2005 proposal and Mr. Zink's December 16, 2005, letter that appears to have finalized the proposal's acceptance, however, a disruptive event occurred. The event caused destruction in the Basin, halted businesses on both of its sides and stressed the resources of the County: Hurricane Wilma. Hurricane Wilma Hurricane Wilma destroyed most of the docks and pilings in the Basin. In the wake of the destruction, Broward Marine submitted an application to the County for the issuance of a general license (the "General License") to repair and re- install pilings and ramps. The difference between projects that require an ERL, such as the project at issue in this proceeding (which required both an ERL and an ERP), and those that require only a general license was explained by Ms. Mitchell at hearing: "A general license is for smaller projects, specifically for docks where the total overwater area is less than 500 feet . . . ." Tr. 386. A Broward County general license was also distinguished from the ERP at issue in this case. Projects for which the overwater area is less than 1,000 feet are not subject to ERPs. The general license was approved in a letter issued by EPD's Wetlands/Uplands Resources Section: This letter is to inform you that your request for a General License has been granted. General License No. GL- DAN0512-029 authorizes the installation of ten (10) pilings and five (5) floating ramps, adjacent to 750 NE 7th Avenue, in the City of Dania Beach. Respondents' Ex. 9 at 9-2. The General License authorized pilings and ramps only; it did not authorize floating dock structures such as finger piers. The approved project description was attached to the January 6, 2006, letter. It shows the approved project to be pilings installed within the Basin at certain distances from the seawall. For the northernmost four set of pilings the distances range from 115 feet to 150 feet. The distance from the seawall of the fifth set of pilings (the southernmost set that corresponds to the fifth finger pier applied for in the ERP application) is 75 feet, a distance significant to safety and navigability. Notwithstanding that the General License did not authorize finger piers, Broward County installed finger piers in the Basin. The installation of finger piers was done without an ERL or an ERP. When asked why a Notice of Intent was not issued that reflected the parties' putative agreement at the end of 2005, Ms. Mitchell replied, "To be honest, I don't recall because there was so much settlement going on outside of our department with the attorneys, I don't remember exactly why it ended up going [to hearing.]" Tr. 397. The record is unclear as to why a Notice of Intent was not issued. It may have been because of the interruption and destruction of Hurricane Wilma and the confusion it caused when country resources were diverted to other pressing matters. It may have been because of lack of communication between all of the parties and their attorneys. Or, it may have been because of objections from Broward Marine that are referenced in Petitioners' Ex. 69 as to the November 16, 2005, submission of information. The objections are counter to Mr. Zink's letter of December 16, 2005, and inconsistent with Mr. Lewis' recall of having reached an agreement in mid-2005. Whatever the reason, a Notice of Intent for an ERL and an ERP authorizing finger piers and floating docks as referenced in Mr. Zink's December 16, 2005, letter was not issued. In March of 2006, the 2002 Dock Application and the amendment to it in the 2003 Revised Application proceeded to hearing before a Broward County Hearing Examiner because of their denial by the County. The March 2006 Hearing, the Final Order and the Omnibus Order The hearing was held on March 30, 2006. There were two parties to the proceeding: Broward Yachts, Inc., as the Petitioner, and Broward County Environmental Protection Department. Aside from the County, none of the parties to this proceeding13/ (DOAH Case No. 08-1393) were parties to the proceeding before the Hearing Examiner. In his Final Order, the Hearing Examiner described those who participated or were present: At the hearing, the Environmental Protection Department was represented by Michael Owens, Esquire, who presented the testimony of Julie Krawczyk, Natural Resource Specialist II. The Petitioner was represented by Larry Zink, Esquire, who presented the testimony of Glenn Straubb [sic], the President of Palm Beach Holdings, Inc. Also in attendance at the hearing was Steve Ganoe, President of G&G Marine, Inc. ("G&G") Respondents' Ex. 10. The Hearing Examiner entered the Final Order on June 5, 2006. The Final Order found that "these docks, is some shape or form, have existed in this area for over twenty one years and have been used for substantially the same purpose for those years." Id. at 10-2. The order further found "that no competent substantial evidence was presented that would support or warrant the denial of the license and permit sought by the Petitioner [Broward Yachts] to maintain its existing docks." Id. at 10-3. The order concluded, "The administrative decision denying the license/permit to maintain the docks is quashed and the matter is remanded to EPD to take appropriate action in accordance with the terms of this Final Order." Id. The order is based on the following finding: The only relevant standard to this proceeding . . . is . . . whether the docks will adversely affect public safety or welfare or the property of others. No evidence was presented that the docks, which have been in existence since 1985, have ever caused an accident or that they impede G&G's reasonable use of the easement. Moreover, while the EPD does have the right to regulate these docks and the navigable water upon which the docks rest, the easement area is not generally travelled by the public and more or less serves as an entrance to only two businesses, G&G and that of the Petitioner. Id. Broward County filed a motion for reconsideration of the Final Order. G&G filed a motion for rehearing and/or reconsideration as a "nonparty." See Respondents' Ex. 11. Both motions were considered in an order entitled "Omnibus Order Granting in Part and Denying in Part Post Hearing Motions." Respondents' Ex. 12. The County's motion was denied. The motion of G&G's was granted in part. The motion was found to request relief not inconsistent with the Final Order. "Specifically, G&G requests that the Final Order prohibit the installation of additional docks and prohibit increasing the size of the existing docks." Id. at 12-2. The Omnibus Order grants the following relief: Petitioner may maintain the five existing docks and repair and replace them, but may not do so in a manner that causes any of the docks to protrude at a greater length or distance into the waterway. Additionally, Petitioner may not construct or maintain any docks other that the five existing docks. Id. at 12-2, 12-3. Neither the Final Order nor the Omnibus Order contains a finding of fact as to the configuration of docks at the time of the hearing conducted by the Hearing Examiner. There is evidence in the record of this case (DOAH Case No. 08-1393) that the five docks existing on March 30, 2006, were configured consistently with the pilings authorized by the General License, that is, they had lengths beginning with the northernmost dock of 135, 135, 150, 150 and 75 feet, respectively. At the time of the final hearing in this proceeding, moreover, the docks were present in the Basin in approximately the same configuration as existed in March of 2006. The 2006 and the 2007 NOIs On October 23, 2006, the County issued a Notice of Intent (the "2006 Notice of Intent") to issue a combined permit/license for the construction of the five docks ranging from 132 feet to 192 feet in length. The 2006 Notice of Intent was issued solely because the County believed it was required by the Hearing Examiner's Final and Omnibus Orders. See Tr. 405. The configuration of docks authorized by the 2006 Notice of Intent resembled the July 2005 Proposal accepted by Mr. Zink on behalf of Broward Yachts: four docks angled into the Basin in a southwesterly direction with one additional dock parallel and adjacent to the seawall. The County did not conduct any evaluation of its own between the dates of the Hearing Examiner's Final and Omnibus Orders as to whether the configuration authorized by the 2006 Notice of Intent had unacceptable impacts to navigation and safety. The draft permit attached to the 2006 Notice of Intent contains several sets of conditions. DEP General Conditions, Broward County EPD General Conditions and ERP and ERL Specific Conditions ("Specific Conditions"). The Specific Conditions were included under the County's authority to impose conditions necessary to carry out the intent of the ERP and ERL permitting regulations. Specific Condition 18 is "Mooring of vessels with lengths exceeding the length of the permitted structures is prohibited." Respondents' Ex. 13 at 13-17. The purpose of including Specific Condition 18, as testified by Eric Myers, Director of the Broward County EPD at the time the 2006 Notice of Intent was issued, "was to make sure that . . . adequate navigation was maintained within the Basin." Tr. 560. G&G challenged the 2006 Notice of Intent by filing a petition for formal proceedings with EPD seeking a clarification in interpretation with regard to the lengths of vessels to be moored in the PBPH side of the Basin vis- à-vis the length of the permitted structures. Broward Marine also filed a Petition for Formal Proceedings challenging the 2006 NOI. In furtherance of discussions with the County, Broward Marine, by letter dated June 26, 2007, submitted four surveys for consideration by the County. The first purported to show the dock configuration existing after Ms. Mitchell's January 2002 visit but before the submission of the Permit Application; the second purported to show the dock configuration on December 11, 2003; the third showed the dock configurations sought by Broward Marine; and the fourth showed all configurations overlapping. None of the surveys depicted the dock configuration existing on January 22, 2002, the date of the Ms. Mitchell's visit, which was the configuration the County had requested Broward Yachts to submit for approval. The County did not transmit the G&G petition or the Broward Marine petition to DOAH. Instead, on or about August 23, 2007, EPD issued another Notice of Intent to Issue Permit/License (the "2007 NOI") to PBPH. The 2007 NOI identifies the proposed project as the Broward Yachts Marine Facility, with permit No. 06-0194386-001 and License No. DF03-1121 and lists the Permittee/Licensee as "Palm Beach Polo Holdings, Inc." Respondents' Ex. 14 at 14-9. With respect to the factors considered by the County in issuing the 2007 NOI, it provides: The Department reviewed the information presented in the petitions, the Hearing Examiner's Final Orders, and surveys provided by Broward Marine with a letter dated June 25, 2007, and as a result has reformulated the draft permit and agency action. Respondents' Ex. 14 at 14-3. The 2007 NOI also referred to an earlier NOI and draft permit issued on August 2, 2007. On August 8, 2007, EPD was notified of typographical errors in the August 2, 2007, NOI. As a result of the typographical errors and other previous errors, the 2007 NOI stated, "this Notice hereby supersedes the October 23, 2006, and August 2, 2007, Notices of Intent to Issue and draft permits/licenses." Id. The Proposed Permit and the draft Environmental Resource License attached to the 2007 NOI allows PBPH to construct five floating finger piers as detailed in a section of the Proposed Permit entitled "PROPOSED PROJECT DESIGN," as follows: The proposed project is to construct five (5) floating finger piers in an existing privately-owned marina basin. From north to south, the finger piers shall have the following sizes: (1) 7.5-foot-wide by 122-foot-long pier; (2)7.5-foot-wide by 135.8-foot-long pier; (3) 7.5-foot-wide by 150.5-foot- long pier; (4) 7.5-foot-wide by 150.5- foot-long pier; and (5) 7.5-foot-wide by 152.6-foot-long pier. All five (5) finger piers shall be placed sixty-five (65) feet apart and angled in a southeasterly direction from the existing seawall, as depicted on the attached drawing. The total over-water area of the structures shall be 5,378.25 square feet Respondents' Ex. 14 at 14-10. The dock configuration authorized in the Proposed Permit is the same dock plan depicted in Exhibit C to the June 25, 2007, letter from Broward Marine to the County. The County issued the 2007 NOI, revising the dock configuration from what it had authorized in the 2006 NOI, due to objections from Broward Marine that the configuration in the 2006 NOI was not consistent with the Final Order and the Omnibus Order. The Proposed Permit also eliminated Specific Condition 18 that was in the 2006 NOI. It did not impose any restriction or limitation on the length of vessels that may be moored at the proposed finger piers, and PBPH indicated at hearing that it would moor vessels alongside the finger piers whose lengths exceeded the piers.14/ In addition to elimination of Specific Condition 18, there were other significant differences between the 2006 NOI and the 2007 NOI. For example, the 2007 NOI allows all five finger piers to be placed 65 feet apart and angled in a southeasterly direction from the seawall. In contrast, the 2006 NOI provided that the southernmost pier of the five would be placed immediately parallel to the seawall so that it did not jut out at all into the Basin. The 2007 NOI contemplates that the structure of the finger piers would be more permanent. The 2003 Revised Application had sought floating docks, of the type existing at the time made of Styrofoam and wood, as opposed to fixed piers. The concrete pilings and the concrete tub floating docks contemplated by the 2007 NOI are more permanent than the existing wood pilings and the wood and Styrofoam docks. Eric Myers, Director of EPD at the time, signed the 2007 NOI. When he did so on August 26, 2007, he believed that the issues regarding safety and navigation that had been raised by G&G and C-Term had been resolved "based on the advice of staff." Tr. 529. Historical Configuration of Docks in the Basin PBPH contends that the finger pier and dock configuration authorized by the 2007 NOI is consistent with historical lengths and configurations of piers and docks in the Basin. The evidence establishes that the length, number, configuration and locations of docks within the Basin varied greatly over time. As Mr. Straub testified in response to a question about the dock configuration when the property was acquired by PBPH, "Whatever we wanted them to be. It could change from day-to-day and month-to- month." Tr. 582. Aerials taken by Broward County dating back to 1998 demonstrate that the docks in the Basin ranged in number, length and location until 2006 when docks were installed following issuance of the General License. Until 1998, there were many different configurations. Since 2006, the number, lengths, and sizes of the docks have remained fairly consistent to the time of hearing. In the January 2007 Broward County aerial photograph, the five docks (from north to south) have lengths of 151.5, 136, 156, 156 and 88 feet, respectively. These lengths are roughly similar to the piling configuration authorized by the General License.15/ Safety and Navigation16/ The multiplicity of factors that affect navigation in the Dania Cut-off Canal "makes maneuvering extremely tricky" in the canal. Tr. 1574. These same factors affect Basin ingress and egress of G&G vessels and other vessels that have access to the Basin. Wind near the Basin comes from any direction. The predominant wind in the area of the Basin is out of the east/southeast at average speeds of 10-12 knots. From time-to-time, of course, the wind shifts. When cold fronts come through the area, for example, they generally come from the west/northwest and the wind blows mainly from the north. Strongest winds associated with a cold front are usually "anywhere from 20 to 30 knots. Constant winds with a good cold front, usually 15 to 20 knots." Tr. 1260. Direction and strength of wind affects stability and handling capacity of vessels entering and exiting the Basin. The bow of the vessel is affected the most. In the front, it is the narrowest part of the vessel, the least heavy, and has the least draft (depth in the water). Vessels entering and exiting the Basin are affected by leeway defined by Mr. Danti at hearing: "[L]eeway is the physical amount of sideways motion that is going to be activated on a vessel by the wind. It is the amount of side motion created by the wind on a vessel." Tr. 1268-9. Leeway varies depending on a number of factors, among them, the strength and direction of the wind, the angle of the vessel, and its draft. Ocean-freight shipping vessels have different handling characteristics from yachts. The effect of leeway on vessels in the Basin varies from vessel to vessel. Typically, the effect of leeway is greater on G&G vessels than on the PBPH vessels. The current in the Dania Cut-off Canal is 2.0 to 2.5 knots. The current in the canal in the immediate vicinity of the Basin has significant effects on the maneuverability of vessels. Because of the current in the canal, it is advisable for vessels entering and exiting the Basin to perform the majority of turns and other maneuvers in the Basin rather than in the canal. Another factor that makes turning maneuvers by G&G vessels safer in the Basin is boat traffic in the Dania Cut-off Canal. That traffic has increased greatly in recent years, as Mr. Steele testified. Vessels exiting the Basin, furthermore, must yield to vessels in the canal. Boat traffic is not visible to the typical G&G vessel until the vessel has committed to exiting the canal. Once committed, the G&G vessel cannot stop and wait for traffic to pass. It must complete the exit maneuver. It is much better, therefore, for the G&G vessel to turn in the Basin before committing to an exit so that it can emerge bow-first with a better view of canal traffic rather than emerge by backing out. Another factor that makes turning in the Basin safer is the Harbortown Marina, located directly across the canal from the Basin. There is a greater chance for collision the farther the G&G vessels must go into the Dania Cut-off Canal before beginning maneuvers necessary to head out to sea. Vessels will have to go closer to the southern side of the canal, that is, farther into the canal, when emerging from the Basin if they back out and turn in the canal rather than turn in the Basin before heading out toward the Atlantic Ocean. The Basin has a width of 320 feet at the north end and a width of 323 feet at the south end. Mr. Danti fashioned an "Unobstructed Line," depicted on Petitioners Ex. 114A and superimposed on Exhibits 114B through 114"O", fourteen aerial photographs of the Basin taken between 1998 and 2008.17/ The line commences at the north end of the Basin 162' from the Basin's western seawall and runs to the south with two "jogs" to the west before it ends at a projected bulkhead line in the mouth of the Basin just north of the Dania Cut- off Canal. The two jogs run perpendicular to the western seawall; the first, to the tip of the fourth finger pier allowed by the 2007 NOI and the second to a point 59.90 feet east of the western seawall in the approximate middle of the fifth and southernmost finger pier allowed by the 2007 NOI. The part of the Basin to the east of the Unobstructed Line is a navigational safe area (the "Safety Zone") created by Mr. Danti in which it is safe, in his opinion, for G&G vessels to turn and take maneuvers necessary to safely enter and exit the Basin. The Unobstructed Line and the Safety Zone were determined by Mr. Danti in a calculation that took into consideration factors including wind, current and tide, as well as the length, width, draft, maneuverability and handling characteristics of the bulk of G&G vessels and the fact that G&G vessels entering and exiting the Basin need the use of a minimum amount of space in the southern part of the Basin to initiate and complete safe entry and exit navigation maneuvers. Ultimately, the Safety Zone provides a minimum distance for a vessel 190 feet in length determined as half the beam of a vessel18/ from the bow, stern or either side of a vessel to any other vessel, dock, piling or seawall. It does not take into account factors that may require a greater distance such as wind, current and traffic under conditions that are less desirable than the best conditions experienced in the area of the Basin ("Best Conditions"). In order for vessels of the size and character that enter and exit the Basin to do so safely under Best Conditions, no finger piers, docks or moored vessels should protrude from the PBPH side of the Unobstructed Line into the Safety Zone. Under ideal wind, current, and weather conditions, the lengths of the first four finger piers from north to south as authorized by the Proposed Permit will not result in adverse effects to safety and navigation of vessels in and around the Basin. The fifth finger pier, however, is another matter. Authorized to be 152.60 feet in length as depicted in the Proposed Permit, it will protrude by more than 77 feet into the Safety Zone developed by Mr. Danti. Put another way, the fifth finger pier will adversely affect safety and navigation unless it is 75 feet or less in length given its southeasterly angle depicted in the Proposed Permit.19/ The authorized length of the fifth finger pier is not the only navigation and safety issue about which Mr. Danti testified. The length of vessels moored at the finger piers in the Proposed Permit, if too long, can present safety and navigation issues, as well, for G&G's vessels coming in and out of the Basin. With respect to the three northernmost finger piers, moored vessels should not extend past the Unobstructed Line, that is, they should not extend more than 162 feet measured perpendicularly from the Basin's western seawall. With respect to the fourth finger pier, vessels moored there should not extend past the 150.50 feet allowed for the length of the pier as depicted in the Proposed Permit. Similarly, no vessels moored at the fifth finger pier should extend past the end of a longest possible safe fifth finger pier, that is, one that is no more than 75 feet in length at the angle depicted in the 2007 NOI. The adverse affects on safety and navigation caused by the fifth finger pier at the length and as configured in the Proposed Permit would not be alleviated by G&G's use of tugboats to assist vessels entering and exiting the Basin. Tugboats are connected to the vessels they tug by tow lines at the bow and stern of the vessels. Such an arrangement adds approximately 85 feet to a typical G&G vessel of 190 feet, thereby requiring more room in the Basin for maneuvering than the vessel would need under its own power. The use of tugboats would require an even more expansive Safety Zone than was developed by Mr. Danti.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Broward County: modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or absent such a modification, deny the issuance of the Proposed Permit as applied for by PBPH. DONE and ENTERED this 14th day of October, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2010.
Findings Of Fact Respondent, Thomas A. Baggett, was at all times material hereto licensed by the State of Florida as a pilot in Tampa Bay. On May 15, 1984, Captain Baggett was employed to undock the M/V Hybur Tropic (Tropic) from Berth 264, Port of Tampa, and to pilot her outbound through Tampa Bay. The Tropic is 238 feet long, with approximately a 32 foot beam, and a draft of over 7 feet. She is powered by a direct drive diesel engine and backs to port. Because the Tropic is direct drive, it takes a minute to a minute and a half to shift the direction of the engine; and another minute to a minute and a half to make headway in the opposite direction. At slow astern, the Tropic will achieve a speed of 2-3 knots in less than two ships' lengths. At or about 1820 hours, May 15, 1984, Captain Baggett ordered the Tug Dorothy to make up a hawser to the center chock aft of the Tropic and pull the stern of the Tropic, which was moored port side to Berth 264, away from the dock. Captain Baggett maneuvered the Tropic's stern around the bow of the M/V Carib Haven which was moored within 100 to 150 feet of Berth 264 on the south side of the slip, and positioned the Tropic in the center of the west end of the slip. Captain Baggett then ordered the Tug Dorothy to pull the Tropic backward out of the slip and ordered the Tropic's engine to slow astern. As the stern of the Tropic exited the slip into Ybor Channel, Captain Baggett ordered the Tug Dorothy to pull the stern of the Tropic to the north, but did not order any engine change. Finally, as the bow of the Tropic cleared the slip, and was in the Ybor Channel, Captain Baggett ordered the Tropic's engines to slow ahead. When she entered the Ybor Channel the Tropic was making a minimum of 2-3 knots, and with the assist provided by the Tug Dorothy more probably 4-5 knots. Captain Baggett's handling of the Tropic placed the Tug Dorothy in a position of peril, and rendered her ineffectual. By continuing slow astern, after ordering the tug to pull the Tropic's stern to the north, the Tropic's tendency to back to port worked against the tug's efforts. By continuing to back the Tropic's engine until her bow had cleared the slip, the Tropic backed past the tug and began to trip her. With water coming over the tug's port side, and the danger of tipping over imminent, the tug's deckhand released the hawser to the Tropic, and the Tropic backed past her into the side of the barge IOS 3301, which was moored on the east side of the Ybor Channel immediately east of the slip the Tropic exited. Captain Baggett's assertion that a collision would have been avoided if the Tug Dorothy had not released the hawser is unpersuasive. At the time the hawser was released, Captain Baggett's handling of the Tropic had already rendered the tug ineffectual, and a collision with the barge 105 3301 inevitable. When Captain Baggett finally ordered the Tropic's engine slow ahead, her bow had cleared the slip and she was moving astern at a minimum of 2 knots. By that time, the Tropic's stern was only 180 feet from the side of the barge 105 3301. At 2 knots the Tropic would cover 200 feet in one minute. Accordingly, before the Tropic's engine could even start ahead, she had backed into the barge. Captain Baggett sought to justify his backing of the Tropic through testimony that he used the Tropic's tendency to back to port to keep her bow from falling down on the M/V Carib Haven. However, by the time the Tropic's stern exited the slip, her bow was already clear of the M/V Carib Haven. Further, Captain Baggett conceded that the Tug Dorothy, even with existing shipping in the slip, was capable of safely towing the Tropic into the Ybor Channel without any assist from the Tropic's engine. Captain Baggett failed to offer any persuasive evidence which would exculpate him. 1/ Wind, weather and current conditions were not unfavorable at the time of the collision, and the Tropic did not experience any mechanical problems.
The Issue The issue presented is whether the Respondent, David Hirshberg acted as a yacht salesman without being licensed in accordance with Chapter 326, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was not licensed as a yacht broker or as a yacht salesman in accordance with Chapter 326, Florida Statutes, commonly referred to as the "Yacht and Ship Broker's Act". The Division is the state agency statutorily authorized to regulate yacht and ship brokers and salesmen. At all times material to this proceeding, the Respondent was employed by Tampa Bay Marine Repossession Center (Center). Respondent's main responsibility was the sale of new Chris Craft boats and occasionally used boats. However, other than giving directions or explaining procedures at the boat show as set out in Finding of Fact 11 the Respondent was not involved with the sale of yachts. The Center is a division of Hirsh Marine, Inc., and acts as the showing agent between banks owning the repossessed boats and the boat buyer. At all times material to this proceeding, Center was not licensed as a yacht broker in accordance with Chapter 326, Florida Statutes, but was licensed as a boat dealer. On Sunday, March 10, 1991, the Center maintained a display booth at the Ninth Annual Suncoast Boat Show (Show) at Sarasota, Florida. The Center's display booth at the Show on March 10, 1991 contained listings offering boats for sale which had been repossessed by banks. One of those listings was for a 34-foot Mainship Trawler (Trawler). Listing of boats on a display board at boat shows is a common method of offering brokerage boats for sale. At the time Center was offering the Trawler for sale on March 10, 1991, the Center did not own, hold title to or have a secured interest in the Trawler. On March 10, 1992, the Trawler was owned by a lending institution that had foreclosed its security interest in the Trawler. The Trawler had been delivered to the Center by the lending institution to be offered for sale. The Trawler was held for sale by the Center for the owner in expectation of compensation for the sale. Ron Hirshberg testified that after the Center negotiated the sale of a repossessed boat with a buyer, the Center paid the lending institution off and title to the boat was transferred to the Center which in turn transferred title to the buyer. Based on material available at Center's display booth, this does not appear to be the procedure used by the Center in handling a sale. The material available at the Center's display booth advises the potential buyer, among other things, that: (a) Center acts as the showing agent between the boat owner (bank) and buyer; (b) certain guidelines are imposed by the bank; (c) no offers will be submitted to the bank without a 10% refundable deposit on initial offer; (d) offers are subject to bank's acceptance; and (e) if repairs are needed, this will be negotiated between bank and buyer. Respondent had his business cards on the table at the display booth which indicated he was associated with the Center. Also, on the display board was a notice that read "Any questions, come out to Chris Craft in-water display and ask for Dave". Dave is the Respondent herein. Upon inquiry, Respondent would direct the person to the marina where the repossessed boats were stored and explain the procedure on how to make an offer or purchase a repossessed boat. There was insufficient competent substantial evidence to establish facts to show that the Respondent was employed by the Center as a yacht salesman or that the Respondent acted as a yacht salesman on behalf of Center as the term "salesman" is defined in Section 326.082(4), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly, RECOMMENDED: That Petitioner, Department of Business Regulation, Florida Land Sales, Condominiums and Mobile Homes enter a final order dismissing the order to show cause. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 6 and 7. Adopted in substance as modified in Finding of Fact 8. - 5. Adopted in substance as modified in Finding of Fact 9. Adopted in substance as modified in Findings of Fact 3 and 11. Rejected as not being supported by competent substantial evidence in the record. Adopted in substance as modified in Finding of Fact 11. Adopted in substance as modified in Findings of Fact 1 and 5. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any Proposed Findings of Fact. COPIES FURNISHED: Mark Henderson, Esquire Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 David R. Hirshberg 6035 30th Avenue West Bradenton, Florida 34209 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On March 5, 1981, at approximately 6:00 or 7:00 p.m., Captain Thomas A. Baggett, a licensed Tampa Bay pilot, boarded the tug SHIELA MORAN, for the purpose of piloting it and the barge CARIBBEAN from the Big Bend Electric Power Plant, where it had discharged its load of coal, to the Eastern Associated Terminal, where it was to pick up a load of phosphate. The SHIELA MORAN is a 126 foot long, 4800 horse-power offshore tug boat. The barge CARIBBEAN is 480 feet long and 75 feet wide. At the time of the transit, the barge was light and had a freeboard of approximately 12 feet. Both vessels were federally enrolled. After respondent introduced himself to the Master, Captain Andrea Bicchiera, and the First Mate, Ronald DeMello, a discussion ensued between the Master and the respondent as to the appropriate method of pilotage. Bicchiera inquired as to whether respondent would be piloting the vessels from the barge. Respondent told Bicchiera that he would not be going on the barge and would pilot the vessels from the wheelhouse of the tug. A heated debate on this issue followed and respondent refused to pilot the vessels from the barge. The Master thereafter instructed First Mate DeMello to go up on the barge. Because the barge was unloaded and light, visibility to the port side of the barge was obstructed. The deck of the barge was four to five feet above eye level from the wheelhouse. It was the Master's opinion that proper navigation could only be accomplished by respondent from the barge. From the wheelhouse of the tug, respondent was able to see forward, aft and to the right. He could also see the ranges in the channel at three miles forward and less than a half mile aft. He felt that he had no real problem with visibility and that he needed to stay in the wheelhouse near the controls to properly navigate the vessels. He therefore remained on the tug SHIELA MORAN during the voyage between the two ports. It is not the custom in Tampa Bay for a harbor pilot to leave the wheelhouse or pilot house of the tug and go up on the barge, since the pilot would have no control of the vessels from the barge. It is common practice for Tampa Bay pilots to remain on the tug even when their vision is restricted on one side. Another tug (the A.P. ST. PHILLIP) was assisting at the bow of the barge. Near the turning basin, respondent instructed First Mate DeMello and a deckhand to release the stern line of the tugs so that they could swing around. As they attempted to release the stern line, the line fell over and got caught in the propeller of the assist tug. This rendered the assist tug inoperable. Respondent was required to reduce the speed of his tug in order to allow the assist tug time to get out of the way. The loss of the use of the assist tug, the reduced speed of the SHIELA MORAN and the current (ebb tide) caused the barge to set to the port (South) side of the channel. Three or four minutes after the assist tug became inoperable, the vessels went outside the channel and the tug bumped or touched the bottom. Shortly after this episode, the barge scraped a buoy. While the First Mate observed that a buoy went under the barge, no further evidence of a damaged buoy or a damaged barge was presented. It is not unusual for a tug boat to touch bottom during a transit through Tampa Bay. No report of the tug grounding or buoy incident was made. There was no evidence that the SHIELA MORAN was damaged in any manner from the grounding incident. While the respondent's tug and the barge were in "C" Cut, another vessel piloted by Captain O'Connell overtook them on the starboard side. Prior to the overtaking, Captain O'Connell called the wheelhouse of the tug SHIELA MORAN to arrange for the passage. Respondent answered the call and instructed O'Connell, in very clear and distinct words, to pass him very slowly because the tug and the barge were not made up too well. Further on the passage to the Eastern Associated Terminal, and at the time of final docking, there was some dispute between the respondent and the Master as to the proper method of maneuvering the tug, a new assist tug and the barge. The barge was docked without incident. After docking, respondent disembarked by climbing over the barge and crawling down through small hand holes from the barge to the dock. Captain O'Connell, who shared transportation with respondent back to their vehicles, observed nothing abnormal about respondent's behavior or speech during this ride. First Mate DeMello believed that respondent "smelled of alcohol" when he first boarded the SHIELA MORAN, and felt that respondent slurred his speech, was argumentative and was not cooperative. Respondent has been working on tugboats since 1945 or 1946, and has been a Tampa Bay harbor pilot since 1969. It was respondent's testimony that he had had no alcoholic beverages on March 5, 1981, prior to boarding the SHIELA MORAN. The First Mate never told the Master or the respondent that respondent should not be piloting the vessels because of intoxication or incapacitation. At the conclusion of the voyage, the Master signed respondent's pilotage slip.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint filed against the respondent on November 9, 1981, be DISMISSED. Respectfully submitted and entered this 3rd day of May, 1983, 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 3rd day of May, 1983. COPIES FURNISHED: W. B. Ewers, Esquire Post Office Drawer 9008 Coral Springs, Florida 33075 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: 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. 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. 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. 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. 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. 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. 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. 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. 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.
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
Findings Of Fact The tug TUSKER is a 120-foot LOA, 396 DWT riveted and steel hull motor vessel, single screw, single deck design with two Polar Atlas diesel engines each rated at 800 BP at 375 RPM. The TUSKER was built in Scotland in 1956, is registered in Canada and was designed and equipped for ocean towing. On February 6, 1981, her draft was 14'6". The propeller is 11'4" in diameter with an 11'3" pitch righthand and turns in a fixed Kort nozzle. The Kort nozzle can be described as an open-end cylinder or ring around the propeller one of whose functions is to keep towlines from becoming fouled in the propeller. The nozzle increases the propeller's thrust but reduces somewhat the effectiveness of the rudder. The TUSKER is equipped with a single rudder, conventional type, mounted on centerline, aft of propeller and Kort nozzle. She is also equipped with a Donkin steering engine on which is superimposed a Sperry automatic pilot and remote controlled steering mechanism. The steering system is hydraulic and can be actuated electrically or mechanically. Normal mechanical operation is effected using the steering wheel on the bridge. Electric power is used to actuate the hydraulic system (which moves the rams which in turn move the rudder right or left) in the three other systems by which the vessel may be steered. One is automatic pilot. Another works off the automatic pilot system with the automatic pilot disengaged and the hydraulic system actuated by a remote control dial attached to a flexible cable. With this system the helmsman can move around the bridge carrying his steering mechanism in one hand. This mode operates on a self-synchronous follow-up system where the operator moves the dial on the remote control and a self-synchronous motor causes the hydraulic system to actuate the rudder to follow the dial. This is the system that was in operation at all times here relevant. The third system of steering, which is also electrically actuated, is a toggle switch, or joy stick, near the wheel which the helmsman moves left or right as he wants the rudder to go. When the lever is held to the right, that hydraulic system is actuated to move the rudder to the right until the lever is returned to neutral or a stop is reached. To move the rudder back to midships the lever is held left (if the rudder is right) until the rudder angle indicator shows the rudder to be back where desired. The barge LIQUILASSIE is a converted tanker 307 feet long with a 60- foot beam and a cargo capacity of 5000 tons. This tank barge can be towed or pushed and is equipped with a notch in her stern to facilitate pushing. Upon entering Tampa Bay on the evening of 5 February 1981 the LIQUILASSIE was in ballast and was drawing six feet forward and nine feet aft. Saltwater was used for ballast. The tug TUSKER and the tank barge LIQUILASSIE had departed Halifax, Nova Scotia, for Tampa and the trip was uneventful until arrival off Tampa on the evening of 5 February 1981. Shortly before reaching the sea buoy the tug changed position from towing the LIQUILASSIE on a 1200-foot line to the pushing mode with the tug's bow secured in the notch in the stern of the LIQUILASSIE. Warwick G. Cahill, Respondent, a licensed Tampa Bay deputy pilot, boarded the TUSKER in Egmont Channel around 10:00 p.m. the evening of 5 February 1981 to pilot the tug and barge to Misener's Marine, a shipyard immediately south of Gandy Bridge on the east side of Tampa Bay. At this time the weather was clear, the tide was rising, winds were southerly at ten knots or less and the seas were light. No significant change occurred in the weather from the time the pilot boarded the TUSKER until the LIQUILASSIE made contact with Gandy Bridge. Pilot Cahill assumed the conn of the TUSKER with Captain Sanderson, the master of the tug, steering using the remote control hand-held dial. The engines were controlled directly from the bridge telegraphs. General discussion with Captain Sanderson revealed that the tug was single screw and that the flotilla combination TUSKER-LIQUILASSIE was slow to turn. At this time the rudder angle indicator was inoperative due to a burned out coil and no spare coil was on board. As a result the pilot could not look at the rudder angle indicator to ascertain the position of the rudder at any given moment. The pilot requested a steering light be installed on the bow of the barge so its rate of movement in a turn could be seen against the background lighting ashore. This was done. Respondent was born in Australia and sailed on foreign flag ships from 1966 until 1970 when he came ashore in the United States and subsequently acquired American citizenship. He resumed maritime employment in 1976 sailing as an ordinary seaman on tugs operated by Gulf Coast Transit Company. He worked his way up from ordinary seaman to master, acquiring his master's license 25 June 1979. From this time until he was appointed a deputy pilot in Tampa Bay in November 1980, he served as master on five tugs operated by Gulf Coast Transit Company. All of these tugs are twin screw vessels varying from 175 gross tons to 435 gross tons. Respondent's master's license authorizes him to sail as master on U.S. vessels up to 1000 gross tons. When he was appointed deputy pilot Respondent was required, as were all other such appointees, to sail as an apprentice with a certified pilot for at least thirty days and thereafter be approved by the Tampa Bay Pilots Association to pilot vessels of not more than 23 feet draft and 500 feet length. After sixty days of piloting this class vessel, a deputy pilot, after approval by the Tampa Bay Pilots Association, is authorized to pilot vessels of not more than 23 feet draft and of unlimited length. Respondent was at this stage as a deputy pilot on 6 February 1981. During the transit of the lower half of Tampa Bay the tug with 14 feet 6 inch draft and barge with the maximum draft of nine feet were navigated outside the channel and did not enter a cut channel until they reached Cut E channel. From the time the pilot came aboard, the tug was running at full speed with shaft RPM at about 110. At this propeller speed and draft of LIQUILASSIE, Captain Sanderson estimated the speed through the water at eight knots. Because of the stiff and slow handling of the tug and barge combination Captain Sanderson suggested to Pilot Cahill before reaching Cut F that at the sharp turns in the channels ahead it might be necessary to slow the tug in order to negotiate these turns. Respondent replied that there was plenty of water outside the channel going into Cut G from Cut F and that they would try that turn without slowing. The turn from Cut F to Cut G is a left turn slightly less than 90 degrees. As he passed between buoys 5F and 6F the pilot directed the helmsman into a left turn which was negotiated without difficulty. The tug and barge settled on Cut G range. The turn into Cut J from Cut G is a turn to the right of about 90 degrees. Here, the depth of the water outside the channel is sufficiently shallow that the TUSKER could ground if she got too far out of the channel. Upon approaching this turn Respondent had someone proceed to the bow of the LIQUILASSIE to stand by the anchors. He reduced speed to slow ahead approximately 1400 yards before reaching turn buoys 5G and 6G (Tr. p. 449) and ordered the helmsman to bring the flotilla to the right. The turn started a little too soon or the flotilla turned too fast, and the helmsman was ordered to slow the rate of turn. As the flotilla straightened the pilot directed more right rudder as the barge and tug were moving into buoy 9J. The flotilla did not respond to the right rudder and the engines were kicked ahead to increase the turning moment. Buoy 9J passed down the side of the flotilla (or was run over by the tug) before the flotilla finally was straightened out in Cut J channel (Tr. p. 451). While proceeding up Cut J channel at slow speed immediately following this incident, the captain directed the steering gear be checked to see if the rudder was answering the commands given through the remote control steering dial. This was the second time since the tug had assumed the pushing position off Tampa Bay that the steering was checked. The first time was shortly after the tug entered the notch when the captain directed the chief engineer to observe the rams on the rudder stock to see if the rudder was moving right and left as directed. On both occasions the rudder was observed by the chief engineer to move from full left to full right to amidships without apparent difficulty. On both occasions the chief engineer so reported to the captain. After straightening out in Cut J the flotilla resumed full speed. At this time, and during most of the transit of Tampa Bay, the current was flooding, i.e., was pushing the vessel northward in the general direction of travel. Misener's Marine is located north of Port Tampa on the east side of Tampa Bay and immediately south of the Causeway approach to Gandy Bridge. To enter Misener's Marine from the south, the preferred course, according to the unrebutted testimony of Respondent, is to continue past Cut K on the same course until the vessel is aligned with the draw span of Gandy Bridge, at which point course is changed to head for the draw span. Before reaching the draw span, course is changed to the right approximately 70 degrees to parallel the bridge as the channel into Misener's Marine is entered. The intended course, after making this turn, as indicated by Respondent on Exhibit 7, is parallel to and 200 yards south of Gandy Bridge. As the flotilla passed Port Tampa the captain remarked that they were moving at a lively clip. Respondent responded that he would slow down before starting the turn. No effort was made to ensure a crew member was standing by to let go the anchors as had been done when approaching Cut J. When one-half mile from the bridge, as observed on the radar screen, the pilot ordered speed reduced to slow and the captain moved the telegraphs to dead slow. At this time the flotilla was moving through the water at eight knots and over the ground at approximately 8.5 knots. The current in this part of the bay was setting northerly towards the bridge about 0.5 knots and it was approximately 40 minutes before high tide and slack water. High tide at Gandy Bridge on 6 February 1981 occurred at 3:07 a.m. (Exhibit 13). When the radar range to the bridge was just over one-quarter mile Respondent directed the helmsman to bring the flotilla to the right. When the response to this command appeared slow and the flotilla was one-quarter mile from the bridge Respondent ordered hard right rudder. Although Respondent testified that at one-quarter mile distance from the' bridge he didn't believe the flotilla would make the turn without hitting the bridge, he ordered the engines ahead full to increase the turning force (Tr. p. 459). When the captain exclaimed they were going to hit the bridge the pilot ordered engines stopped, then full astern. The captain moved the engine controls as directed. As the engines were ordered reversed the pilot left the rudder right full until most of the way had been taken off the flotilla. During this time the bow of the barge continued to move right slowly. As the barge closed on the bridge the pilot shifted the rudder to left full shortly before the bow of the LIQUILASSIE made contact with the third and fourth bridge supports to the east of the center span. At the time of contact at approximately 2:25 a.m., February 6, 1981, the flotilla was making an estimated speed over the ground of approximately one knot. The bow of the barge went under the road span and fetched up on the third and fourth bridge supports to the east of the center span. Continued backing for a few minutes failed to free the barge from the bridge supports. Respondent's witness, Captain John Graham, predicated his opinion that Respondent committed no error on the assumption that he commenced the turn into Misener's Marine at a distance of one-half mile from Gandy Bridge. His testimony (Tr. p. 337) was that "He [Respondent] ran out of options at a quarter-mile except for what he did: full astern. He was already hard starboard. There was no time--his other option was drop the anchor. That's too late." This assumption of distances from the bridge at which certain events occurred is not supported by the evidence and is in conflict with the findings made above, that the tug reduced speed when one-half mile from Gandy Bridge and the command to change course to the right was given to him just over one-quarter mile from the bridge. This finding is consistent with Respondent's testimony that he started the commencement of the turn approaching Gandy Bridge just before he reached the one-quarter mile point and increased to right full rudder at one-quarter mile. In his report of the accident, CG-2692 (Exhibit 15), Respondent also says that rudder was ordered hard right at a distance of one- quarter mile from the bridge. Had Respondent ordered the engine full astern one-quarter mile from the bridge when he realized collision with the bridge was likely, the flotilla would have been stopped before hitting the bridge. Instead of ordering the engines full astern Respondent first ordered full ahead to increase the turning force. Only after he realized this added force would not turn the barge fast enough did he order the engines stopped, then full astern. Local authorities were notified of the collision and ultimately the Highway Patrol regulated vehicular traffic over the damaged bridge. The damage to the bridge supports and barge was stipulated to be approximately $250,000. Shortly after the collision, high tide at Gandy Bridge occurred and thereafter the tide began falling. The bow of the LIQUILASSIE was caught on the piling and it was feared that additional damage to the piling would result as the tide receded and more of the weight of the barge was placed on the piling. The LIQUILASSIE collided with the bridge on a course approximately 30 degrees to the right of normal to the bridge and remained in that position until freed with the assistance of a passing tug at 5:15 a.m. After being freed from the bridge the tug was put on the port bow of the barge to help turn the LIQUILASSIE to the right some 90 degrees to enter Misener's Marine where the flotilla was moored. Immediately after mooring, Coast Guard investigators, in company with the chief engineer and Respondent, checked the steering gear and found the rudder responded fully to the right and left in response to electrically generated commands from the bridge. The time to go from full left to full right was measured and found to be 25 seconds (Exhibit l) On February 12, 1981, while moored at Misener's Marine, the steering gear was again checked for operation from full right to full left and vise versa (approximately 35 degrees rudder angle) for four cycles and the average time from full right to full left was 24.25 seconds (Exhibit 3). The radar on the TUSKER is mounted directly over the wheelhouse. While in the notch of the LIQUILASSIE the distance from the radar to the bow of the LIQUILASSIE would be approximately 110 yards. (307 feet, length of the LIQUILASSIE, plus the distance from the bow of the TUSKER to the radar. No evidence of this latter distance was presented.) Accordingly, when hard right rudder was ordered at a radar range from the bridge of one-quarter mile (500 yards) the bow of the LIQUILASSIE was less than 400 yards from the bridge. If the speed of the flotilla was six knots over the ground and the flotilla remained on course towards the bridge at this speed, 400 yards would be traversed in two minutes. For the bow of the flotilla to reach the intended tract 200 yards south of Gandy Bridge at this same speed over the ground would take just under one minute. Respondent presented an expert witness who testified generally regarding hydraulic steering systems. He had never been aboard the TUSKER to observe the steering mechanism but opined that a leak between the high pressure and low pressure lines could cause what he termed hydraulic stall. This could occur if debris under the valve seat prevented a valve from seating properly and allowed some of the pressure to bleed off from high pressure to low pressure lines. This could reduce the pressure in the high pressure lines, reducing the pressure being applied to the ram to turn the rudder and thereby decrease the force available to turn the rudder. This could result in a rudder not reaching the full right position while the tug was underway when maximum force opposing a rudder turn exists, but allow the rudder to turn to full right or left when dockside in still water. Other witnesses had testified to movement of the large wheel in the wheelhouse while the ship was being steered with the portable steering dial. The expert opined that this movement of the wheel was indicative that oil was leaking from the high pressure lines through the wheel and could cause hydraulic stall. The chief engineer by deposition (Exhibit 16a) testified that in his experience a hydraulic steering system either worked or it didn't and he was unaware of any such system that would one time allow the rudder to go full right or left position and the next time, under the same command, the rudder would go only part way. In the instructions for the Donkin steering mechanism attached to Chief Engineer Michael Ingham's deposition, which was admitted into evidence as Exhibit 16a-e, the Donkin manual, listed as Exhibit 13 to Ingham's deposition, states in part as follows: Under the heading STARTING: 2. Put the change-over cock "B" on the bridge in power position. (When moving gear by local power control the change-over cock should always be in power otherwise the bridge hand wheel will be driven round by the power pump as soon as the control valve is moved.) Under the list of possible faults which may develop in the steering gear and How to locate them and their remedy, the same Exhibit 13 states: Steering gear will not work in either Power, Hand or Local Control. Shortage of oil causing air locks. (See Charging Instructions) Non-return valves (shuttle valves) on the telemotor side of the bridge unit not operating through being fouled with foreign matter or faulty. Drain oil out of bridge unit and examine valve. Steering Gear works in power but not in hand. Non return valves on hand pump side of bridge not seating through foreign matter or otherwise faulty. Remove oil from bridge unit, dismantle and clean thoroughly. Steering gear working erratically. Some- times going hardover, sometimes stopping short and sometimes moving on its own without the hand wheel being moved. 1. Buffer spring connecting the tiller to the hunting gear levers seized or wrongly adjusted. Dismantle spring, clean the stays and make sure they are free to work in the guide plates, assemble and adjust so that all the nuts just come up to the plates as the shoulders on the stays touch the plates. These instructions for the Donkin steering mechanism tend to support the testimony of the chief engineer that the steering mechanism doesn't work fully on one rudder change and only partly on another. No evidence was presented that the change-over cock on the bridge was in power position. On the other hand, no evidence was presented that someone had moved this lever from the position in which it was supposed to be set when the steering was placed in the power mode. Prior to departure from Halifax the Canadian Coast Guard inspected the steering system, particularly the emergency steering, and found it working properly. For the purpose of determining if the Respondent exercised prudence in piloting the TUSKER as the flotilla approached the Gandy Bridge, it is not essential that the steering be found to be operating correctly or erratically. If the latter, the Respondent was, or should have been, made aware of possible difficulties in making a sharp turn to the right as he had recently experienced that very problem while, making the turn from Cut G into Cut J.
Findings Of Fact At all times relevant hereto George H. McDonald was licensed as a Tampa Bay pilot by the State of Florida and issued license number 0000074. On October 29, 1986, Respondent boarded the vessel, Kalliope II, at berth 223, GATX dock, to undock the vessel and pilot it out of Tampa Bay. Kalliope II is a Liberian registered vessel of some 17,000 gross tons, 584 feet in length, and at the time of departure from berth 223, had a maximum draft of 34 feet, six inches. The Kalliope II was moored starboard side to berth 223, and two tugs were available to assist in the undocking. Prior to undocking, the steering gear was tested and performed satisfactorily. A physical check of the steering engine room was not conducted. The bow of the Kalliope was swung out in a pivot test to insure the bow was not aground. This was accomplished by slacking the bow lines and taking in on the stern lines. A similar pivot to ensure the stern was not aground was not accomplished. In undocking the Kalliope II, Respondent had the tug Tampa on the stern on a hawser and the tug Orange on the port bow. As the vessel cleared the slip, the Orange was cast off and stood by with the Tampa towing the Kalliope II into Cut D Channel. Because of the deep draft of the Kalliope II, Respondent did not use the vessel's engines in this maneuver. The Kalliope II as noted above, is 584 feet long and Cut D Channel is 400 feet wide. In order to keep the stern from striking the west bank of the channel while backing out of berth 223, it is necessary to pivot the vessel to move the stern northward while keeping the bow clear of the docks. While backing away from berth 223, the only control of the movement used was that supplied by the tug Tampa. Twice the captain of the Tampa advised Respondent that the stern of the Kalliope II appeared to be getting too close to the Davis Island seawall just west of Cut D Channel. The first time this information was passed to Respondent, he directed the tug to come ahead slow, and the second time the tug was directed to come ahead full. Thereafter, the Kalliope II was aligned in cut D channel. At this time, Respondent ordered the engines ahead slow and had the Tampa cast off. The weather was not a contributing factor at this time. At no time between 2200 hours, the time the Kalliope II left berth 223, until the Kalliope II was finally aligned with Cut D Channel, did Respondent feel the Kalliope II touch bottom. While proceeding down Tampa Bay, Respondent noticed the helmsman was using 200 rudder to keep the vessel in the channel, and directed one of the ship's crew to check the steering engine room. When this was done, it was discovered that the steering mechanism had suffered considerable damage, and the vessel could no longer be controlled with the steering gear. Tugs were again called, and the Kalliope II was returned to a dock. Underwater divers surveyed the damage to the rudder, and other surveyors checked the damage to the gear in the steering engine room. Examination of the rudder showed heavy damage with the trailing edge of the bottom of the rudder bent some 25 degrees from the top of the rudder. Build up of streaks of clay on the port side of the rudder, with the rudder damage sustained, is indicative of the rudder striking the bank while the ship was backing down. (Exhibit 5) Examination of the steering gear inside the steering engine room revealed the steering equipment had been seriously damaged and was inoperable. The damage was consistent with damage to be expected if a ship struck the edge of the channel with the rudder while backing down. Divers searched the west bank of Cut D Channel in the vicinity of berth 223 and found an impact area opposite and just north of berth 223. The impact area was approximately 40 feet long parallel to the channel with clay substrata welled upwards through the sand and mud giving the appearance of the embankment having been struck by a large heavy force. (Exhibit 6) Damage to the Kalliope II's steering equipment was in excess $100,000. Respondent has been a licensed deputy pilot and pilot in Tampa Bay since 1980, has an excellent record, and this is the first time that charges have been brought against him.
