Findings Of Fact This case is promoted based upon the previously mentioned Administrative Complaint and the Respondent's ensuing request for formal hearing pursuant to Section 120.57(1), Florida Statutes. Respondent is licensed by the Board of Pilot Commissioners pursuant to Chapter 310, Florida Statutes. He holds pilot license No. 0000033. Register has served as a licensed pilot in the St. Johns River in the Port of Jacksonville, Florida, for a period in excess of 20 years. Respondent has piloted ships in and out of the Port of Jacksonville on the St. Johns River approximately 20,000 times. One of the assignments which Captain Register had as a pilot pertained to piloting the outbound vessel Oakland on the St. Johns River in Jacksonville, Florida, on March 19, 1983, commencing approximately 2303 hrs when he received the con of the vessel from the dockingmaster. The Oakland is a C-4 type of vessel or container ship which is approximately 685 feet long and 96 feet wide. At the time of these events in March, 1983, the Oakland was sailing under Registry, bound for a foreign port. The vessel was heavily laden, but not in excess of cargo capacity. The trip out the St. Johns on March 19, 1983, is graphically depicted in Petitioner's Exhibit No. 3, admitted into evidence, which is a chart diagram of the river and adjacent shoreline, together with approximate positions of the Oakland and commands given taken from an interview with the Respondent and from the ship's log. The weather on this occasion was not an inhibiting factor in the navigation of the vessel, in fact the weather was "outstanding," with westerly winds of 8 knots. The steering gear on the vessel had been checked at 2130 hrs the day of the scheduled voyage of March 19, 1983, and was found to be in acceptable working order. No problems had been experienced with the steering from mid- January 1983 through the date of the aforementioned check. When Captain Register took over at 2303 hrs, the master of the vessel and other crew members were on the bridge to assist. In addition, the chief mate was on the bow as lookout. The chief mate, serving as anchor watch on the bow, was in communication with the ship's master via walkie-talkie. Once the vessel had been steadied up in the river, upon command of the Respondent, the vessel proceeded at full ahead and reached the approximate velocity of 10 to 12 knots before 2312 hrs. At 2312 hrs, Respondent ordered half ahead to maneuver in the Long Branch Range portion of the St. Johns. Half ahead represents 6 to 8 knots of speed in the water for the Oakland. At 2314 hrs, the command of slow ahead was given to avoid undue suction related to a vessel in a docking area adjacent to the St. Johns, known as the bulk terminal. When that command was given at 2314 hrs, the Oakland was carrying 6 to 8 knots of speed in the water. Also, at 2314 hrs, the chief mate was told to "stand by" the anchors. This command was given by Captain Fisher, the Oakland's ship's master. In this time frame, 2314 hrs through 2316 hrs, the chief mate had some concern that they might have some trouble maneuvering by the Meton, a vessel moored in the St. Johns ahead of the Oakland as it was proceeding outbound. This vessel was a different ship than that found at the bulk terminal. The chief mate expressed the opinion that it looked like they would probably clear the Meton but it would be a close call. Five to ten seconds later, he told the bridge they weren't going to make it. The bow watch was assisting in this regard in view of the fact that the bow is some 600 feet forward of the bridge where the pilot and master were located. Between 2314 hrs and 2316 hrs, Register gave the command half ahead and the speed of the Oakland at that time was approximately 5 to 6 knots. Register also ordered 20 degrees right rudder to negotiate the Chaseville Turn and avoid the moored vessel Meton, a gasoline tanker. The ship did not respond readily to the 20 degree right rudder and immediately thereafter a hard right rudder command was given by Register. At 2316 hrs, a danger signal was sounded upon instigation of the Respondent. At 2317 hrs, Register ordered full astern with a jingle and the command was given to let go of the anchors. This command was relayed by Fisher to the chief mate on the bow. Additionally, the crew member on the bridge at the helm was responding to commands by Register and Register's commands were being communicated to the engine room through the ship's master. When the command to let go of the anchor was received by the chief mate, he went to the brake wheel to comply with the command. A boatswain was there to assist him. Upon reaching that location, the Oakland was approximately 200 feet away from the Meton, too late for the deployment of the anchors to help avoid a collision and the chief mate abandoned his post and moved away from the bow area without dropping the anchors. At that moment, the two ships were approximately 100 feet apart. In effect, there was not enough time to drop and set the anchor from the time the command was given at 2317 hrs and the time of an eventual collision between the Meton and Oakland. The collision occurred in view of the fact that the efforts to turn away from the Meton and avoid the collision, i.e., the 20 degree right rudder, hard right rudder and full astern were not sufficient to avoid that collision. The collision occurred at 2319 hrs when the Oakland's bow struck the Meton's bow. At the point of impact, the Oakland was proceeding at 2 to 3 knots. Structural damage was caused to the vessels. No indication was given as to any injuries of ship personnel or others. From 2303 hrs through 2319 hrs, the critical period in consideration, ample assistance was afforded to Captain Register by members of the Oakland's crew. After disengaging from the collision, the steering gear was checked by the chief engineer on the Oakland with particular emphasis on the rudder response and no abnormalities were detected. Tests by Coast Guard personnel made at dockside at 0930 hrs on March 21, 1983, and again while the ship was underway on March 24, 1983, did not reveal any abnormalities in the steering gear and response time for operation of the rudder was found to be within acceptable time constraints. The repairs that were made to the "key" involved in the steering mechanism, effective March 18, 1983, and repairs to the telemotor subsequent to the accident were routine and not contributors to the collision between the Oakland and Meton. Captain Register and the master expressed surprise at the inability of the Oakland to maneuver by the Meton without collision. Nonetheless, neither of these witnesses or other persons who gave testimony were able to indicate some mechanical malfunction or outside contributing force which would have led to the eventual collision between the ships. Nor were the other witnesses helpful in this regard, to include pilots Steele and Williamson. In essence, no explanation was given to establish why a ship which was shown to be in good repair, sailing in uneventful weather, should collide with a stationary object, the Meton. Consequently, it is determined that negligent judgment in the operation of the ship on the part of the Respondent led to the collision. The testimony by Captains Fisher, Steele and Williamson as to the conduct of the Respondent in his performance do not excuse his negligence. Instead they speak convincingly to Respondent's efforts to mitigate the results of his error in judgment.
Findings Of Fact At the time of the final hearing the parties stipulated in writing as set forth in Hearing Officer Exhibit #1 to certain stipulations of fact refer to certain times a day. The stipulation was entered into between the parties with the state understanding that those times of day are approximate with the exception of Paragraph 7 of Hearing Officer Exhibit #1 (Paragraph 1G of this order) wherein the time recited is deemed to be precise. Those stipulations of fact are set forth below: John Eugene Lerro is a duly licensed deputy pilot pursuant to Chapter 310, Florida Statutes (1979). On June 17, 1980, the pilotage license of Captain Lerro was suspended pursuant to an "emergency order" entered by the Department of Professional Regulation on the grounds that his continued pilotage constituted an immediate danger to the public health, safety, and welfare. On May 9, 1980, Captain Lerro boarded the M/V SUMMIT VENTURE at approximately 6:30 a.m. for the purpose of piloting that vessel into the Port of Tampa Bay. Accompanying Captain Lerro, as an observer, was deputy pilot Bruce Atkins. The M/V SUMMIT VENTURE is a 608 foot (LOA) Phosphate Rock Carrier registered in Monrovia, Liberia. On May 9, 1980, the said vessel was in ballast and drew nine feet six inches forward, twenty-one feet three inches aft. Between 6:30 and 7:30 a.m. on May 9, 1980, the tide in Tampa Bay was at flood with an approximate current of 1 knot. During that time period, maritime traffic in Tampa Bay was normal, with vessels proceeding both inbound and outbound. As the M/V SUMMIT VENTURE proceeded into Tampa Bay, it passed abeam of Buoy 16 in Mullet Key Channel at 7:23 a.m. A lookout (bosun) was ordered forward by Captain Lerro at 7:13 a.m. At approximately 7:15 a.m. Captain Lerro ordered an anchor watch (carpenter) posted on the bow. Both the lookout and anchor watch arrived at the bow of the vessel at 7:23 a.m. The M/V SUMMIT VENTURE collided with the Sunshine Skyway Bridge at approximately 7:34 a.m., May 9, 1980. The M/V SUMMIT VENTURE was equipped with a Sperry Mark IV course recorder. This device, driven by a gyrocompass repeater motor, operates electrically from the ship's master gyrocompass. The recorder is equipped with a clock mechanism which drives a roll of graph paper under a pair of marking pens. Graduated time and heading increments are printed on the paper. The markings on this paper produce a permanent record of the ship's heading with respect to time. The rudder, steering mechanism, engine telegraph and other related mechanical equipment of the M/V SUMMIT VENTURE were in proper working order and functioned normally on May 9, 1980. The rudder of the M/V SUMMIT VENTURE was operated hydraulically and required approximately 22 seconds of time to travel from the hard starboard to hard port position. For the past three and one-half years Respondent has been a certificated deputy pilot at the Port of Tampa, Florida, and at all times material hereto was duly licensed by Petitioner to perform piloting duties. Respondent is a graduate of the merchant marine Academy of the State of New York, and possess an unlimited Master's License for the ports of Tampa, Miami, and Fort Lauderdale. The Respondent served for one year as a pilot in the Panama Canal Zone prior to becoming a certificated deputy pilot at the Port of Tampa. Respondent is of above-average intelligence, mentally competent, and possesses the ability and judgment to make the types of decisions required of a certificated deputy pilot. Respondent has never had a any disciplinary action taken against his maritime licenses other than that which is the subject of this proceeding. At midnight on May 8, 1980, the Respondent, John E. Lerro, (hereinafter referred to as Lerro) was asleep at the pilot's station at Egmont Key. He had been asleep since the night of May 8, 1980, after taking a ship outbound. Between 4:00 a.m. and 4:20 a.m. on May 9, 1980, Lerro was awakened by Steve Pimental, a Tampa Bay pilot boatman. After being awakened Lerro proceded to the pilot station's reading room, arriving there between 4:30 a.m. and 4:35 a.m. on May 9, 1980. While walking to the reading room Lerro could see Buoy #11 and noted that visibility was roughly two miles. Upon arriving at the reading room Lerro instructed the pilot boatman to contact the M/V SUMMIT VENTURE to inquire about the weather. Lerro was scheduled to be transferred to the SUMMIT VENTURE for the purpose of piloting the vessel into Tampa Bay. Based on the SUMMIT VENTURE's reply, Lerro concluded that the visibility was not sufficient to start the vessel inbound to Tampa Bay. Lerro told the Captain of the SUMMIT VENTURE to stay where he was until further instructions. Approximately 30 to 45 minutes later Lerro contacted the tugboat DIXIE PROGRESS inquiring about the weather. The DIXIE PROGRESS, then located in Egmont Channel, reported visibility of approximately three miles. Lerro concluded that visibility was sufficient to transfer to the SUMMIT VENTURE and start her inbound. Lerro and Bruce Atkins were then ferried to the lighthouse by Steve Pimental on the pilot boat TAMPA. Atkins was duly licensed to act as a deputy pilot on Tampa Bay. He had just become a new pilot and as such had to ride for thirty days with an existing pilot. May 9, 1980 was his thirtieth day. The next day he was scheduled to begin work as a deputy pilot on Tampa Bay. Lerro and Atkins transferred from the pilot boat TAMPA to the pilot boat EGMONT at the lighthouse between 5:35 a.m. and 5:45 a.m. on May 9, 1980. At approximately 6:30 a.m. Lerro and Atkins transferred from the EGMONT to the SUMMIT VENTURE near the sea buoy. As Atkins and Lerro boarded the SUMMIT VENTURE a light tanker named the PURE OIL piloted by John G. Schiffmacher, a licensed Tampa Bay pilot, started outbound from the Port of Tampa. At approximately that same time a 7,000 ton motor bulk carrier named THE GOOD SAILOR was passing outbound under the Sunshine Skyway Bridge piloted by Earl G. Evans, also a licensed Tampa Bay pilot. Upon boarding the SUMMIT VENTURE Lerro introduced himself and Atkins to the Captain and told him that Atkins might take the con during the inbound trip. Lerro properly acquainted himself with the vessel's correct draft, radar equipment, engine speed, compass error, and other facts peculiar to that particular vessel. Lerro then took the con and the SUMMIT VENTURE began its inbound trip into Tampa Bay. After ordering the ship to proceed half-ahead to the north of the channel in order to avoid an outbound vessel grounded near Buoy #3, Lerro turned the con over to Atkins. When the SUMMIT VENTURE passed Buoy #3 Lerro sighted the tugboard DIXIE PROGRESS by radar as it neared Buoy #8. Lerro did not have visual contact with the tugboat's running lights. Lerro radioed the DIXIE PROGRESS to make arrangements to overtake and pass her and was told that the tug was in a rain squall. When the DIXIE PROGRESS was halfway between Buoys #8 and #10 Lerro could visually see the range lights and correctly surmised that the rain squall had dissipated, or moved elsewhere. As the SUMMIT VENTURE arrived at Buoy #8 Lerro visually sighted THE GOOD SAILOR which was just passing Buoy #13. By that sighting Lerro estimated that visibility was approximately three miles. The SUMMIT VENTURE passed the lighthouse on Egmont Key at 7:06 a.m. At 7:13 a.m. the SUMMIT VENTURE passed Buoy #11 and Lerro noticed drizzling rain for the first time. Because of the drizzling rain Lerro instructed the ship's captain to place a lookout and anchor watch on the bow. The Captain of the SUMMIT VENTURE complied with Lerro's instructions. As the SUMMIT VENTURE passed Buoy #14 the rain began to fall harder whereupon Lerro relieved Atkins of the con. At that time Lerro had visual contact with the next buoy, Buoy #16. In addition the radar on board the SUMMIT VENTURE was working very well, giving Lerro a clear picture of the buoys ahead. Lerro testified that it was the best radar with which he had ever worked. The radar mast was approximately 500' aft of the bow. Hereafter distances are radar ranges, not distance from the bow. As the SUMMIT VENTURE passed Buoy #14 it made radar contact with the outbound PURE OIL being piloted by Schiffmacher. At that time Lerro contacted Schiffmacher by radio and ascertained that the PURE OIL was 2.3 miles east of the Sunshine Skyway Bridge outbound and that the SUMMIT VENTURE was 3 miles west of the same bridge inbound. Schiffmacher told Lerro that the PURE OIL was making 12 knots. Assuming constant speed thereafter Lerro could reasonably expect that the PURE OIL would reach the Sunshine Skyway Bridge before the SUMMIT VENTURE. At 7:23 a.m. the SUMMIT VENTURE passed Buoy #16. Lerro had noted no increase in rainfall between Buoys #14 and #16. Upon arriving at Buoy #16 Lerro was unable to visually sight Buoys #1A and #2A, but was able to make radar contact with them. Since he had a clear radar picture of the next buoys, #1A and #2A, he proceeded inbound. When the SUMMIT VENTURE got within .2 miles of Buoys #1A and #2A the rainfall rate increased suddenly and dramatically as did the wind velocity. Because of the heavy rainfall radar contact with Buoys #1A and #2A was lost. The radar screen was solid yellow and no return could be distinguished on it. Lerro knew that the SUMMIT VENTURE was in extreme difficulty and immediately began reviewing his options. Lerro's first thought was to turn hard to port. He immediately tried to contact Schiffmacher on the PURE OIL to determine that vessel's position outbound. He knew that if the PURE OIL had continued outbound from her last known position a turn hard to port would take the SUMMIT VENTURE across her path. Because the PURE OIL was light and therefore explosive Lerro was properly concerned about the catastrophic consequences of a collision between the two vessels. Lerro's attempt to communicate by radio with Schiffmacher was unsuccessful. The radio response he received to his call was garbled and he was unable to garner from it any useful information. Therefore, because he reasonably believed the PURE OIL to be outbound in his vicinity Lerro discarded the option of turning hard to port. When the SUMMIT VENTURE was .1 mile from Buoys #1A and #2A radar contact was momentarily reestablished and Atkins, monitoring the radar, reported sighting the two buoys and further reported that the SUMMIT VENTURE was within the A Cut Channel. This radar contact was maintained for two sweeps of the radar and then lost permanently. At that point an option considered by Lerro was to go hard to starboard into a spoil area. He discarded that option because the depth of the spoil area is unknown and not marked on the charts and he did not wish to expose the vessel broadside to the wind with the potential effect that would have on the control of the vessel. Lerro was concerned that such a turn would result in a collision with the bridge. In addition to the options of going port and starboard, Lerro considered stopping the vessel by reversing the engines and dropping anchor. He discarded that option because he did not think the ship could stop under control before it hit the bridge. Seconds after Atkins reported radar contact on the buoys at .1 mile, the bow lookout reported a buoy on the starboard bow. That buoy was 1A or 2A and probably 2A. It was not positively identified by the bow lookout. Having discarded the above three options Lerro waited no more than 15 seconds after the bow lookout reported "buoy starboard bow" and started a turn to port to the next course which he thought would successfully bring the SUMMIT VENTURE underneath the Sunshine Skyway Bridge. A normal turn was made using port 10 degrees rudder. Lerro made a normal turn from a late turning point because on the trip up the Bay the prevailing wind had been from the southwest which, during the turn, would push the vessel to port. Further, Lerro wanted to stay on the right side of the channel to clear Schiffmacher in the PURE OIL which Lerro believed to be outbound. During the turn Lerro maintained the ship's speed at half- ahead, approximately 11 knots, so as not to jeopardize control of the vessel in the high wind. After completion of the turn Lerro changed the speed of the vessel from half-ahead to slow-ahead. When Lerro saw the Sunshine Skyway Bridge he immediately realized he was not in the proper position in the channel and put the engines on double- full-astern while ordering both anchors dropped, and the helm hard to port. The port anchor was dropped but, through no fault of Lerro, the starboard anchor was not dropped. Lerro made visual contact with the Sunshine Skyway Bridge more than a ship's length from the bridge. At 7:34 a.m. the starboard bow of the SUMMIT VENTURE impacted the Sunshine Skyway Bridge. Within seconds after the SUMMIT VENTURE struck the bridge Lerro broadcast a mayday call over the radio to the Coast Guard. He then had the captain of the vessel get the crew on deck to look for survivors. Prior to boarding the SUMMIT VENTURE Lerro obtained all information normally obtained concerning the weather conditions then existing and which he would confront during his transit into Tampa Bay. He reasonably concluded that the weather conditions were such that the SUMMIT VENTURE could successfully transit the Bay to its destination. The heavy storm that hit the SUMMIT VENTURE as it approached Buoys #1A and #2A was not reasonably foreseeable in its intensity. Several ships and smaller vessels on the Bay were also caught unaware by the sudden and intense storm. Captain Earl G. Evans, a Tampa Bay pilot for twenty-three years, was piloting the vessel THE GOOD SAILOR outbound between the Sunshine Skyway Bridge and the sea buoy. When THE GOOD SAILOR was in the vicinity of Buoy #10 off Egmont Key heading into the direction from which the storm came, Captain Evans was hit unexpectedly by the storm. According to his testimony he had no warning that the storm was coming until it was actually upon him and his visibility was reduced to zero. He also lost the use of his radar because of the rain clutter. Captain Evans reported that when the storm hit his ship there was an explosion sounding like the firing of a high powered rifle in a closed room which occurred in the wheel house of THE GOOD SAILOR. He assumed the explosion was caused by a lighting strike, though he was not able to confirm that supposition. The SUMMIT VENTURE's inbound transit on the morning of May 9, 1980 was normal with weather conditions commonly encountered and normal traffic on the Bay until the vessel reached a point in Mullet Key Channel .9 miles from the Sunshine Skyway Bridge, and .2 miles from the turning buoys #1A and #2A which mark the entrance to A Cut Channel. At that point the SUMMIT VENTURE and Lerro encountered a sudden, unexpected and intense storm which reduced visibility to zero. Prior to that storm the prevailing wind throughout the ships's transit had been from the southwest at 15 to 20 miles per hour. This caused Lerro to steer several degrees to the right of the normal couse in Mullet Key Channel to compensate for the effect of the wind on the vessel which was setting the SUMMIT VENTURE to the north. At the onset of the storm the wind velocity rapidly increased to approximately 50 to 60 miles per hour and possibly reached 70 miles per hour. Between 7:00 a.m. and 8:00 a.m. on the morning of May 9, 1980 the prevailing wind direction shifted from predominantly southwest through west to northwest. Several witnesses for Petitioner who experienced the storm pertinent to this proceeding estimated that the winds from the storm were westerly to northwesterly. One person testified that the winds at one time during the storm were predominantly out of the south. One of those witnesses, a bridge tender located on the Sunshine Skyway less than three nautical miles from the point of the collision, estimated the winds of the storm to be out of the northwest. The manager of the toll booth located on the northern end of the Sunshine Skyway less than six nautical miles from the point of collision estimated the winds of the storm to be out of the west. A third witness of Petitioner was a commuter who came to a stop within several hundred feet of the point of collision on the Sunshine Skyway Bridge. He also estimated the winds to be out of the west. A fourth witness for Petitioner was a pilot boat captain inbound from Buoy #8 outside Egmont Key who testified that at one point during the storm, as he headed his vessel into the wind, the wind was predominantly out of the south. Another witness for Petitioner, Earl G. Evans, a Tampa Bay pilot who was piloting THE GOOD SAILOR in the vicinity of Buoy #10 off the tip of Egmont Key, testified that he headed his ship into the wind and that by his compass the wind was out of 280 degrees. Evans and THE GOOD SAILOR were approximately five and one-half nautical miles from the point of collision at that time. In addition, a witness for the Respondent, Judge Mark McGarry, Circuit Judge for the Sixth Judicial Circuit, State of Florida, was camping at Fort DeSoto, approximately four nautical miles west of the point of collision at the time of the storm. He accurately estimated that the winds of the storm at his location were out of 330 degrees. It is therefore concluded as a matter of fact that at the time of the storm that struck the SUMMIT VENTURE approximately .9 miles from the Sunshine Skyway Bridge, the prevailing winds moved very quickly, in more than a few minutes, from the southwest to westerly to northwest a velocity of 50 to 60 miles per hours, perhaps reaching as high as 70 miles per hour. Of the several expert pilots who testified on the question, all agree that when Lerro lost visibility and radar contact at the onset of the storm approximately .9 miles from the Sunshine Skyway Bridge, his choice to attempt to navigate through the bridge as opposed to turning port, starboard, or going full-astern was a reasonable, prudent choice. Further, at least one expert pilot with twenty-three years experience testified that in his opinion Lerro's choice to attempt to navigate through the bridge was the only reasonable, prudent choice to make. The Petitioner's consultant, Ernest Clothier, an expert pilot with twenty-six years experience in New York Harbor, testified that in his opinion when Lerro lost radar contact with the buoys, he only had three viable options. In Clothier's opinion Lerro had the option of going hard port, hard starboard, or of going through the bridge. These are the same three options considered by Lerro. Clothier emphatically testified that going full-astern and attempting to stop the ship was not a viable option because in that attempt all control of the ship would have been lost, and Lerro would have had no idea where he was going or where he would end up. All of the other expert pilots testifying on the question agreed with Clothier that going full-astern was not a viable, reasonable, prudent option. Clothier further testified on behalf of Petitioner that he did not think Lerro's choice of the option of going through the bridge was wrong. Rather than being critical of Lerro's choice of options Clothier was critical of the manner in which Lerro executed what Clothier considered a valid option. Clothier felt that Lerro should have initiated his turn through the bridge approximately 600 feet earlier than the turn was initiated, and he was critical of Lerro for making a normal rate turn. In Clothier's opinion Lerro should have made a faster-than-normal rate turn. It is concluded as a matter of fact that upon losing visibility and radar contact in the storm Lerro had three reasonable options in trying to avoid an accident. Those three options included turning hard port, turning hard starboard, and attempting to steer successfully through the bridge. The options chosen by Lerro, steering through the bridge, was a reasonable, prudent option. Further, the evidence does not establish that Lerro, in deciding to make a late, normal rate turn failed to do or consider those things which any reasonable, prudent pilot under similar circumstances would have done or considered. Neither does the evidence establish that Lerro did or considered things which any reasonable, prudent pilot would not have done or considered under similar circumstances. Petitioner presented the testimony of Anthony Suarez, a collision analyst who by discipline is a hydrodynamicist. Suarez presented several calculations he had made for the purpose of showing that the SUMMIT VENTURE, as it was steered by Lerro, could not have successfully navigated under the Sunshine Skyway Bridge. However, Suarez testified that his calculations were based on the assumption that the wind remained constantly astern of the SUMMIT VENTURE. He further testified that if in fact the wind was out of the southwest or the northwest his calculations would not be representative of the trajectory of the SUMMIT VENTURE in those conditions. Since it has been concluded as a matter of fact that the winds were initially out of the southwest, swinging to the northwest, the testimony of Suarez, with regard to his calculations projecting a trajectory over the ground of the SUMMIT VENTURE purporting to show that it could not have been steered safely beneath the Sunshine Skyway Bridge, is rejected for the purposes of this proceeding because of its failure to be based on the facts as they occurred. As established by the testimony of the expert pilots appearing in this cause, the speeds maintained by Lerro on the SUMMIT VENTURE during her approach to the Sunshine Skyway Bridge were reasonable and prudent under the existing weather conditions. Slower speeds on the vessel would have risked control problems. No evidence was presented in this proceeding from which it could be concluded as a matter of fact that Lerro lacks either the ability, legal qualifications, or fitness to discharge the duties of a pilot. Respondent's Exhibit #5 is a summary of marine casualties or accidents in the Port of Tampa between October 1, 1975 and October 2, 1980, involving the pilots of the Port of Tampa. The twenty-one pilots working the port during that time averaged six accidents. Lerro had seven accidents. No evidence was presented which would show that any of the accidents in which Lerro was involved caused significant damage or any injury. Lerro's record with regard to the number of accidents was about average for the pilots of the Port of Tampa. With regard to Lerro's past experience as a pilot, he was employed by the Panama Canal Company from January 6, 1976 to November 12, 1976. During that time he served as a pilot in training and, upon completion of the normal training period, as a vessel pilot with that agency's Marine Bureau. At no time during his employment with the Canal Company was any adverse or disciplinary action taken against him and none was pending at the time he voluntarily terminated his service with the company. He terminated his service in Panama to accept a better position as a pilot in the Port of Tampa. During the course of his employment with the Panama Canal Company Lerro was not involved in any marine accidents investigated by the Canal Zone Government Board of Local Inspectors, the local organ responsible for such investigations.
Recommendation Petitioner having failed to establish the allegations of the Administrative Complaint that Respondent was guilty of negligence and incompetence in the performance of his piloting duties on May 9, 1980, it is therefore RECOMMENDED that: The Respondent, John Lerro, be found not guilty of negligence and incompetence and that the Administrative Complaint be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1981. CHRIS H. BENTLEY 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 2nd day of January, 1981. COPIES FURNISHED: Kenneth G. Oertel, Esquire Lewis State Bank Building, Suite 646 Tallahassee, Florida 32301 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Kenneth E. Apgar, Esquire de la PARTE & BUTLER, P.A. Suite 102 403 North Morgan Street Tampa, Florida 33602 Michael Schwartz General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Notices to Show Cause were issued by the Department against Roy D. Mathew, and William Gannaway on April 9, 1976. (See: Agency Exhibits 1 and 2). The final hearing was scheduled by notice dated May 12, 1976. (See: Agency Exhibit 3). Roy D. Mathew, d/b/a Anchorline Yacht Brokerage holds Yacht and Ship Broker License No. 12433, issued by the Department on December 18, 1975. (See: Agency Exhibit 5). Mathew has at all material times held a yacht and ship broker license issued by the Department. William G. Gannaway holds Yacht and Ship Salesman License No. 12657, issued by the Department on December 18, 1975. (See: Agency Exhibit 4). Gannaway has at all material times held a yacht and ship salesman license issued by the Department. Gannaway has at all material times served as a yacht and ship salesman for Roy D. Mathew and Anchorline Yacht Brokerage. Prior to July, 1975, R. A. McKenzie, the owner of a yacht called The Anokone, decided to sell the yacht. The yacht was housed at Anchorline Yacht Brokerage in St. Petersburg, Florida, and McKenzie agreed to pay Anchorline a commission for selling the yacht. On or about July 8, 1975, Jean C. Noll, a resident of Jacksonville, Florida, saw the yacht, and believed that it was the sort of vessel that she and her husband had been looking for. She entered into a purchase agreement with the understanding that her husband, the Reverend Joseph E. Noll, Jr., would have the opportunity to make a personal inspection. William G. Gannaway represented Anchorline Yacht Brokerage in the transaction, and received a deposit from Mrs. Noll. (See: Agency Exhibit 6). On or about July 15, 1975 Reverend Noll came to St. Petersburg from Jacksonville and inspected the yacht. Gannaway at that time advised Reverend Noll that the starboard engine on the yacht was broken down and would require extensive repairs. Reverend Noll liked the yacht, and hired the Wilkinson Company to conduct a survey of the yacht. Dean Greger conducted the survey on behalf of the Wilkinson Company. A very thorough inspection was performed by Greger. He made 24 recommendations respecting & repairs, some of which were significant, and some of which were minor. He was not able to conduct a sea test of the vessel because of the broken down engine. His report was issued on July 22, 1975. (See: Agency Exhibit 7). McKenzie was somewhat disturbed about the large number of discrepancies, and he offered the following alternatives to the Nolls: He would sell the boat "as is" for $15,000; he would sell the boat "as is" with a new starboard engine installed for $17,000; or he would sell the boat for $19,500 with a new engine, with him making all additional repairs up to $1,000 and with all remaining repairs being split evenly three ways between the Nolls, McKenzie, and Anchorline. The Nolls accepted the latter option, and a contract reflecting it was signed. (See: Agency Exhibit 28). All work was to be performed at Whistlers Yacht Service, Inc., which was located adjacent to Anchorline. Shortly after July 22, 1975, it became apparent that a new replacement starboard engine could not be obtained, because the engine was no longer in production. Gannaway advised the Nolls that Whistlers indicated to him that they could replace the "shortblock" of the engine, rebuild the engine, and that they would stand by their work. Gannaway told the Nolls that he thought the rebuilt engine would carry a one year guarantee. Reverend Noll believed that the guarantee would be for no more than 90 days, and he agreed to a rebuilt engine rather than a new engine. Extensive work was performed by Whistlers Marina, and more than $2,100 was paid to Whistlers to perform the repairs. (See: Agency Exhibits 14, 22, 23, 24, 25). Dean Greger conducted a supplemental survey, including a sea test of the vessel on or about August 14, 1975. Fourteen of the 24 discrepancies noted in the original report were found to have been satisfactorily corrected. It was noted that the generator, the depth sounder, the auto pilot, the signal horn, the marine air conditioning, and the docking lights were not performing properly. (See: Agency Exhibit 8). The Nolls were aware of these problems when they closed the transaction and purchased the yacht on approximately August 20, 1975. The closing took place at a Federal Credit Union in Jacksonville. No representative of Anchorline was present at the closing. Following the closing the Nolls took possession of the yacht, and renamed it "Escape Hatch II". The Nolls were advised by several persons, including personnel at Whistlers Yacht Basin, and personnel at Anchorline, that they should familiarize themselves with the vessel in the immediate area prior to their taking any long excursions. The Nolls nonetheless left St. Petersburg in early September to return to Jacksonville. On this return trip the Nolls experienced many mechanical difficulties. Major repairs needed to be performed on the vessel in Ft. Myers (See: Agency Exhibit II), and minor repairs were performed in Stuart and Melbourne (See: Agency Exhibits 12 and 13). Upon return to Jacksonville major repairs were required and are continuing to be performed. (See: Agency Exhibits 16, 17, and 27). It is apparent that the starboard engine was not properly repaired, and that considerable dry rot remained on the vessel. The Nolls are presently engaged in litigation respecting their liabilities in connection with the vessel. Whistlers disclaimed any liability for making repairs, but Mrs. Coe, the general manager at Whistlers testified that she would have performed any repairs within 90 days if the vessel had been returned to the yacht basin. Mr. Gannaway and Mr. Mathew had sound reason to believe that there were no discrepancies respecting the operability of the yacht other than those set out in the marine surveys. Mathew and Gannaway had sound reason to believe that all of the repairs required to rectify these discrepancies had been performed at Whistlers. There was no evidence offered to show that either Gannaway or Mathew intentionally misstated any facts to the Nolls, or that they knew or should have known that any statements they made to the Nolls were false. There was no evidence to establish that Mathew had any personal knowledge of any of the dealings or discussions between Gannaway and the Nolls.
The Issue Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant. On the license renewal card Respondent submitted conflicting answers. To question (3) which read: Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure? Respondent answered "Y." To question (4) which read: Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing? Respondent answered "N." An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida." Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Florida Land Sales, Condos, Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Scott K. Edmonds, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tracy J. Sumner, Esquire Tracy J. Sumner, P.A. 1330 Thomasville Road Tallahassee, Florida 32303
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
The Issue The issue presented is whether Rule 61E13-2.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact l. Petitioner South Florida Cargo Carriers Association, Inc., is a Florida not-for-profit corporation with its principal office in Miami, Florida. Petitioner's purpose is to promote, advance, and secure laws, rules and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the State and the environment, life, and property of all persons be protected to the fullest extent possible consistent with sound financial principles. Petitioner consists of the following companies: members of the Florida-Caribbean Cruise Association; Maersk, Inc.; Seaboard Marine; Kirk; SeaLand; Zim; Cari Freight; Thompson Shipping, and Burmuth. Intervenor Florida State Pilots Association, Inc., is a Florida not-for-profit corporation. It is a voluntary organization whose membership is comprised of all individual pilot associations serving the various ports of the State of Florida, as well as approximately 100 pilots licensed by the State of Florida. Among other things, Intervenor advances and defends the interests of its membership on the state level. The Port Everglades Pilots' Association (hereinafter "PEPA") is an association composed of present and retired harbor pilots that is treated as a partnership for tax purposes and which performs the pilotage services at Port Everglades. PEPA and its affiliates Port Everglades Pilots, Inc., and PEP, Inc., are located in Fort Lauderdale. The purpose of PEPA is to provide pilotage services in Port Everglades in a safe and efficient manner and in compliance with the provisions of Chapter 310, Florida Statutes, the rules promulgated thereunder, and any other provisions of law governing the provision of pilotage services. As such, PEPA is entitled to charge pilotage rates as provided in Section 310.151, Florida Statutes, and, as further provided therein, to seek rate changes by filing a petition with the Department of Business and Professional Regulation, Pilotage Rate Review Board. A number of Petitioner's members are affected by the rates of pilotage set for Port Everglades, inasmuch as they are required by Chapter 310, Florida Statutes, to utilize and compensate the pilots whose rates are established by the Board, and they are utilizing and compensating pilots in accordance with the rates currently established for Port Everglades. In January 1997 PEPA submitted to the Board an application for an increase in the pilotage rates for Port Everglades. In February 1997 Petitioner submitted its own application for a decrease in the rates of pilotage for Port Everglades. On May 20, 1997, the Board held a public hearing on both applications. At the conclusion thereof, the Board preliminarily determined to grant PEPA's application for a rate increase in its entirety and to deny Petitioner's application for a rate decrease. The Board's preliminary determination was reduced to writing on July 3, 1997. On July 28, 1997, Petitioner filed with the Board a Petition for Formal Administrative Hearing challenging the Board's decision to grant PEPA's application and to deny Petitioner's application. The Board thereafter transmitted that Petition to the Division of Administrative Hearings. The Board's transmittal letter filed August 7, 1997, cautioned the Division not to carry out its full statutory functions because: it is the Board's position , as expressed in rule 61E13-2.012(3), F.A.C., that the resolution of any disputed issue of fact by an [Administrative Law Judge] cannot result in a recommendation from that ALJ as to what the rate should be. The ALJ's recommendation should only extend to resolving the disputed issues of material fact. Subsequently, and based upon the resolved issues of fact, the Pilotage Rate Review Board will set the appropriate rates. On August 18, 1997, Petitioner filed its Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule, challenging Rule 61E13-2.012(3), Florida Administrative Code, pursuant to Section 120.56(3), Florida Statutes. Petitioner has standing to file and maintain this rule challenge proceeding. Intervenor has standing to intervene in this rule challenge proceeding. Rule 61E13-2.012(3), Florida Administrative Code, was adopted before October 1, 1996. It was included on a list submitted by the Pilotage Rate Review Board in accordance with Section 120.536(2), Florida Statutes. It was subsequently amended by the Board, effective October 14, 1997, so as to delete all portions of the Rule except for Subsection (3) which is now the entire Rule.
