Findings Of Fact In his application for registration as a real estate salesman submitted August 21, 1972 (Exhibit 1), Respondent, in response to Question 9 which asked if he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, answered yes and listed "1958 W. Va--traffic, 1964 So. Carolina-Traffic, 1/16/70 Fla--Traffic, 6/2/71 Fla--Traffic, and 9/17/71 Fla-- Traffic." In his application for registration as a real estate broker submitted February 4, 1972 (Exhibit 3), Respondent answered the same Question 9 exactly as he had done on his application for salesman. Court records from South Carolina (Exhibit 2) show that Ernest Clyde Bourne, Jr., was arrested on a warrant charging him with stealing a boat and trailer of the value of more than $200; that on November 30, 1964, he posted an appearance bond in the amount of $9,000; that he was indicted on March 3, 1965, on an indictment alleging that Bourne, on August 12, 1964, at Georgetown, S.C., feloniously did steal, take and carry away one 25 foot Bertran boat and one six wheel trailer of the value of more than fifty dollars the proper goods and chattels of Earnest Mohler, Jr.; and that on September 21, 1965, he pleaded nolo contendere to receiving stolen goods, the Court entered judgment that he be confined for six months or pay a fine of $500, and that the fine was paid on September 21, 1965. In his defense, Respondent testified that, prior to acquiring the boat he was charged with stealing, he had owned two or three boats, the last of which was destroyed in a fire while at a Princeton, West Virginia, storage during the winter of 1964; and that he was looking for a replacement for the boat. While enroute from his home in Princeton to Myrtle Beach, South Carolina, he stopped at Columbia, South Carolina, to visit a boat yard and, while looking at a boat, was approached by a person representing himself as a salesman. The salesman told him that he knew of a 25 foot Bertram boat in an estate that may be for sale. When Bourne showed interest, he advised that he would know in about a week and Bourne was to call him. In due course, Bourne called the "salesman" who said he had the boat and arranged for Bourne to pick up the boat at Columbia. The address at which Bourne came for the pick up was a corner containing a Texaco station and a wrecked car lot. After inspecting the boat Bourne paid $5,000 cash and executed a lien on a trailer for $2,300. No record was subsequently found that the lien had been recorded and Bourne retained no copy. Bourne towed the boat and trailer to his home in West Virginia where the boat was registered and used by Bourne during the remainder of the summer. At this time Bourne was enrolled at Stetsen Law School in Florida, where his mother resided. Bourne returned to West Virginia in November, 1974, and enroute back to Florida with the boat in tow, he was stopped by the police and arrested at Orangeburg, South Carolina, and charged with larceny of the boat. The sheriff from Georgetown, South Carolina, picked up and drove Bourne to Georgetown where he spent the weekend in jail awaiting the posting of bond. At his trial in September, 1965, Bourne appeared, represented by his lawyer from West Virginia, and a South Carolina attorney. The attorneys arranged for a nolo contendere plea which Bourne entered under the impression he was pleading to an attempt to commit a misdemeanor. Exhibit 4, the deposition of the attorney who represented Bourne at the trial, confirmed that Bourne pleaded nolo contendere to an attempt to commit a misdemeanor in a negotiated plea worked out with the prosecuting attorney. Although the attorney characterized the charge to which Bourne pleaded as "no offense," the negotiated settlement included a $500 fine. This was described in the deposition as a forfeiture of a $500 bond (apparently connected to the $5,000 appearance recognizance previously entered to get Bourne released from jail) and as "the [law] firm check in the amount of $500 which was left with the clerk of the court when the clerk presented a blank form for Bourne to sign. It is presumed the "blank form" subsequently became the judgment page of Exhibit 2 on which Bourne plead nolo contendere to receiving stolen goods and the judge signed the sentence to be confined at hard labor for six (6) months or pay a fine of five hundred dollars ($500).
Findings Of Fact At all times relevant hereto, David E. Rabren was licensed as a Tampa Bay state pilot and was president of the Tricounty Pilot's Association (TRICO). At the time the movement of the OCEAN LORD occurred, there was only one state licensed pilot who was a member of TRICO. That was David E. Rabren. Other members held only federally issued pilot's licenses. Prior to the movement of the VOMAR, a second state licensed pilot joined TRICO. At present, there are four licensed state pilots and one deputy pilot associated with TRICO. The vessel OCEAN LORD arrived in Tampa Bay February 18, 1986, and was piloted by Captain Rabren to its berth at C. F. Industries (CFI). After taking on cargo, the OCEAN LORD was moved the same date to Gadsden Anchorage. During this move, Captain Murphy, a federally licensed, but not state licensed, pilot was on board. Captain Murphy is associated with TRICO. On February 21, 1986, the OCEAN LORD was moved from Gadsden Anchorage to the CSX Transportation dock at Rockport. Again, Captain Murphy was the pilot. On September 21, 1986, the vessel VOMAR was moved from Rockport to a dock at Big Bend with Captain Murphy as the pilot. Anita Rabren determined that the movement could be accomplished with a federally licensed pilot on board. On October 5, 1986, the vessel ASPEN, an American flag vessel, arrived at Tampa Bay, and the ship's agent requested TRICO provide a pilot. Due to a misunderstanding of the agent's statement that the ASPEN was coming from the west coast, Anita Rabren assumed this was from the west coast of the United States. Actually, the ASPEN's last port of call was in Korea. Had the vessel come from a west coast of the United States port, the voyage would have been a coastwise trip, and a federally licensed pilot would be required. A federally licensed pilot was assigned to pilot the ASPEN. The last port of call of the ASPEN was ascertained after the pilotages up Tampa Bay commenced, and the fact that an improperly licensed pilot was used was reported forthwith. TRICO paid a double pilot fee to the Tampa Bay Pilot's Association. Tampa Port Authority has jurisdiction over all of Hillsborough County and establishes rules and regulations for that area. They do not regulate pilotage of vessels. Many of the terminals in Hillsborough County are owned by the Port Authority, but some are privately owned such as Big Bend and Rockport, both of which are in the port of Tampa. The Port Authority controls the allocation of berths at all terminals owned by the Port Authority, but does not control the berths at privately owned terminals. The CFI terminal is owned by the Port Authority who establishes wharfage rates and docking rates at this terminal. The berths at Rockport and Big Bend are privately owned, and tariff rates are not set by the Port Authority. CSX Transportation owns a dock at Rockport where phosphate is loaded onto vessels. No wharfage or dockage charge is levied, but such charges are included in charges for the commodity loaded. Ships can clear customs at any of the terminals above noted. The Big Bend facility is under the jurisdiction of Gulf Coast Transit Company. Vessels bring coal to Big Bend for use by Tampa Electric Company. The AGRICO terminal at Big Bend is used for loading phosphate rock. All of these privately owned terminals are licensed by the Tampa Port Authority to whom they pay a fee and submit reports of their activities. The Tampa Port Authority charges a fee to vessels who load or unload cargo at the Gadsden Anchorage which is also in the port of Tampa. Section 310.002(4), Florida Statutes, defines "port" to mean, any place in the state in which vessels enter and depart. For Tampa Bay, this section lists Tampa, Port Tampa, Port Manatee, St. Petersburg and Clearwater as ports. Of those listed ports, Tampa and Port Tampa are in Hillsborough County and come under the jurisdiction of the Tampa Port Authority. No evidence was submitted showing the areas encompassed by the Port of Tampa and Port Tampa. The Port of Tampa's Terminal and Facilities Map (Exhibit 5) showing the port facilities at Tampa, Florida, does not show the facilities at Port Tampa; it shows only those facilities on the east side of the Tampa peninsula, and does not reach as far south as Big Bend. Presumably, if there are only two ports in Hillsborough County that portion of Hillsborough County west of the Tampa peninsula would comprise Port Tampa, and that portion of Hillsborough County east and south of the Tampa peninsula would comprise the Port of Tampa. If so, all of the movements here complained of occurred in the Port of Tampa. Exhibit 5 supports this conclusion. Finally, no credible evidence was presented that Respondent assigned a federally licensed, but not a state licensed, pilot to the OCEAN LORD, VOMAR and ASPEN as alleged, except Exhibit 3 which states the assignment of a federally licensed pilot to the Aspen was due to an error on the part of Captain Rabren. The direct testimony presented in this regard is that Anita Rabren assigned federally licensed pilots to those ships. Further, this determination that use of a federally licensed pilot for those movements of foreign flag vessels within the Port of Tampa was proper was made by Anita Rabren after receiving legal advice regarding the in-port movements of foreign flag vessels that can be piloted by a federally licensed pilot.
The Issue The issue is whether Florida Administrative Code Rule 61G14-22.012 is an invalid exercise of legislatively delegated authority in violation of section 120.52(8), Florida Statutes (2014).
Findings Of Fact Petitioner BBP is an association of harbor pilots that performs the pilotage services at PortMiami. BBP consists of pilots licensed by the State of Florida in accordance with chapter 310, Florida Statutes. Petitioner PEPA is an association of harbor pilots that performs the pilotage services at Port Everglades. PEPA consists of pilots licensed by the State of Florida in accordance with chapter 310. FHPA is a statewide organization representing the interests of Florida’s approximately 100 state-licensed harbor pilots, the membership of which is comprised of the eleven local pilot associations that serve each of Florida’s 14 deep-water ports. BBP and PEPA are members of FHPA. Chapter 310 governs pilots, piloting, and pilotage in the waters, harbors, and ports of Florida. Section 310.141, Florida Statutes, requires that, except in certain narrow circumstances, all vessels shall have a licensed state pilot or deputy pilot on board to direct the movements of the vessel when entering or leaving ports of the state or when underway on the navigable waters of the state’s bays, rivers, harbors, and ports. Section 310.011 creates the 10-member Board of Pilot Commissioners (“BOPC” or “Board”); each member is appointed by the Governor “to perform such duties and possess and exercise such powers relative to the protection of the waters, harbors, and ports of this state as are prescribed and conferred on it in this chapter.” In addition to other responsibilities, the Board determines the number of pilots in each port (section 310.061) and disciplines licensed pilots when appropriate (section 310.101). Although the BOPC has numerous statutory responsibilities, setting the rates of pilotage in each port is not one of them. Florida Administrative Code Rule 61G14-22.012 (“challenged rule” or “rule”) is entitled “Determination of Disputed Issues of Material Fact; Formal or Informal Hearings.” 5. Rule 61G14-22.012 cites section 310.151(1)(c) as specific authority. The challenged rule lists as “Law Implemented” sections 310.151 and 120.57. The former Pilotage Rate Review Board originally adopted the rule in 1995. When the Legislature amended chapter 310 in 2010, the former Pilotage Rate Review Board’s name was changed to the Pilotage Rate Review Committee (“PRRC” or “Committee”). The Committee consists of seven members, all of whom are also members of the BOPC. The PRRC is responsible for setting rates of pilotage in each port. On November 5, 2014, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” PRRC members voted at that meeting to repeal rule 61G14-22.012, but determined they did not have enough information to know if a Statement of Estimated Regulatory Costs was required. On December 11, 2014, the BOPC/PRRC published a second notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” At that meeting, the PRRC voted to reconsider its original vote to repeal rule 61G14-22.012, but because the issue of potential reconsideration had not been properly noticed, no official vote on reconsideration was taken. On January 7, 2015, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a meeting on January 22, 2015, and January 23, 2015. Among the subjects noticed for consideration was “Reconsideration of Repeal of Rule 61G14-22.012, F.A.C.” This matter was considered by the PRRC on January 23, 2015. By a 5-2 vote, the Committee voted against repealing rule 61G14-22.012. FCCA is a trade association representing cruise lines that are subject to pilotage fees pursuant to chapter 310, Florida Statutes. FCCA has filed petitions to reduce the rates of pilotage in both PortMiami and in Port Everglades.
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 Petitioner is a Swiss national, who resides in Jamaica. His business in Jamaica involves water sports and vacation tours, primarily for European tourists. Petitioner attended a boat show in Fort Lauderdale, Florida, in order to locate a suitable boat for entertainment and tour purposes for use by his business in Jamaica. There, he saw The Lady, a vessel being brokered by Anchorline Yacht and Ship Brokerage, Inc., of St. Petersburg, Florida. On February 28, 1980, Petitioner purchased The Lady from Anchorline for $120,000. Prior to that date, a survey was conducted by Wilkinson Company, marine surveyors, and repairs indicated by that survey were completed at South Pasadena Marina, Inc. At the time that Petitioner purchased The Lady from Anchorline, he advised the broker that he was taking the vessel out of the country. Accordingly, the broker required Petitioner to sign an affidavit that Petitioner had read the provisions of Section 212.05, Florida Statutes, and no tax was collected on the sale and purchase of The Lady. As The Lady was journeying from St. Petersburg across the State of Florida to West Palm Beach in order to reach Jamaica, she started taking on water. She was taken to Lantana Boatyard, where another marine survey was conducted. That survey concluded that The Lady was not seaworthy and, therefore, could not be taken to Jamaica at that time. As one of the required repairs, her engines needed to be overhauled by Cummins in Miami. Accordingly, after the repairs to be made at the Lantana Boatyard were completed, The Lady was taken to the Keystone Point Marina in North Miami, Florida, so that the work on her Cummins engines could be undertaken. During this time, Petitioner attempted to register The Lady in Jamaica; however, the Jamaican Government refused to license or register the vessel since she was not in Jamaica but was still physically located within the State of Florida. As a result of discussion between Petitioner and a Mr. Mathews at Anchorline, on September 18, 1980, the Petitioner made application for a Florida boat Certificate of Title at a tag agency. He reported the purchase price as ten dollars and, accordingly, paid forty cents tax on the transaction. Cummins started the repair work necessary on The Lady's engines while she had been docked at the Keystone Point Marina. On occasion, Petitioner has stayed overnight on The Lady for security purposes. He has had a telephone attached to the vessel for his personal use while on board. On January 7, 1981, Respondent Department of Revenue issued a Warrant for Collection of Delinquent Sales and Use Tax against the Petitioner in the total amount of $9,967.37, representing the follows: Tax $4,799.60 Penalty 4,799.60 Interest 350.17 Filing Fee 18.00 $9,967.37 On January 19, 1981, Petitioner made payment to Respondent Department of Revenue in the amount of $5,167.77, which payment was made under protest and which payment represents the amount of tax, interest, and filing fees, but does not include the amount of penalty. Pursuant to its warrant, the Department of Revenue has chained The Lady to the dock at the Keystone Point Marina. Accordingly, the work being performed by Cummins on her engines has not been completed, and no sea trial can be conducted. As stipulated by the parties, since the Petitioner purchased The Lady, she has been under repair and has never left Florida waters.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is therefore, RECOMMENDED THAT: A final order be entered denying Petitioner's claim for a refund, finding the Petitioner liable for a sales tax equal to four percent of the purchase price, together with interest and filing fees, but finding the penalty assessed against Petitioner to be erroneous and therefore invalid. DONE AND ENTERED this 8th day of October 1981 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October 1981. COPIES FURNISHED: Michael Lechtman, Esquire 801 N.E. 167th Street, Suite 301 North Miami Beach, Florida 33162 John Browdy, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301 The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
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
Findings Of Fact The Petitioner, the State of Florida, Department of Professional Regulation, filed an Administrative Complaint in prosecution of a probable cause finding by the Board of Pilot Commissioners, an agency of the State of Florida charged with regulating entry into the profession of harbor piloting and enforcing the practice standards for that profession for those already licensed. The Respondent at all times material hereto, was admitted as a licensed pilot in the State of Florida, having been issued license number 0000033. The Respondent resides in Jacksonville, Florida and practices his profession by piloting vessels in and out of the port of Jacksonville. On February 26, 1987, the motor vessel, Fernpasset, was approaching the port of Jacksonville for the purpose of discharging a load of Volkswagon automobiles. The Fernpasset is a Liberian registered car carrier having a gross tonnage of 9841 tons, a length of 536 feet, with an 89.5 foot beam. The vessel is somewhat unique in that it has a very large "sail area" or wind-affected profile as a necessary part of its structure, which extends approximately ninety percent of the vessel's total length and at a height of approximately sixty feet above the water line. This represents a much larger wind-affected profile for this vessel, as compared to more conventional cargo ships. The Jacksonville Harbor is reached by navigation of the St. Johns River channel inland from the Atlantic Ocean. At the point where the river and river channel reaches the Atlantic Ocean are two jetties, composed of granite rocks, serving as a breakwater at the entrance to the harbor. The harbor entrance has a north jetty and a south jetty. The north jetty projects waterward from the land for approximately 2,400 yards. The south jetty projects out into the water approximately 1,400 yards. Buoy number seven in the St. Johns River channel is located nine hundred yards inside the jetties. At approximately 1800 hours on February 26, 1987, the Fernpasset commenced preparation for entering the port of Jacksonville. The chief mate made VHF radio contact with the Jacksonville pilot station at about this time and gave the dispatcher at the pilot station, at his request, his estimated time of arrival at the sea buoy, his deep draft, approximately twenty-two to twenty- four feet, and what the weather conditions were at sea. During the initial radio contact between the Fernpasset and the pilot dispatcher, Errol M. Hatton, at approximately 1815 hours, the dispatcher asked First Officer (Chief Mate) Oleson whether he wanted to pick the pilot up inside the jetties or at the sea buoy. He replied that it would pick up the pilot inside the jetties. The vessel's master, Ole Brakstaad, agreed to that procedure. After this initial contact, and after the arrangement with the Fernpasset was made that it would pick the pilot up inside the jetties, the dispatcher called the Respondent, Captain Register and informed him of the job and the boarding arrangement. Prior to the Fernpasset arriving in the port area, the Jacksonville area had experienced moderate to severe weather from the northeast with "northeasters" blowing for approximately a week, with choppy and rough seas. Indeed, the official log of the M/V Fernpasset reveals that wind conditions on February 26, 1987, while at sea, varied from wind force four through wind force six and seas varied from sea scale four through sea scale five. Just two hours before the initial radio contact with the pilot station, at approximately 1600 hours, the Fernpasset was experiencing winds from the Northeast at force five, gusting at six. The sea had a heavy swell running at that time. Wind force six is approximately twenty-two to twenty-seven nautical miles per hour. Sea scale five consists of waves running eight to twelve feet high. See Respondent's exhibit two, (Brakstaad's Deposition). After Captain Register arrived at the pilot's station, the dispatcher, Mr. Hatton, spoke with the vessel approximately two more times, checking on its estimated time of arrival and having the vessel confirm that it would pick up the pilot inside the jetties. This arrangement had already been made before Captain Register had been called at his home by the dispatcher and told to report for duty to pilot the Fernpasset into the harbor. Captain Register did not participate in the conversation that set up this arrangement because he was at home and not on duty at the time. The evidence does not reflect that this choice was anything but freely made by the master of the Fernpasset and it does not indicate that Captain Register had any reason to believe that the master of the vessel had not freely chosen to pick up the pilot inside the breakwater, especially in view of the fact that inclement weather conditions were prevailing, with the attendant danger involved in boarding a pilot in heavy seas. In any event, the master of the vessel, Captain Ole Brakstaad, commenced conning his vessel into the entrance to the St. Johns River. He used his radar and the navigational markers to line up the vessel to transit between the north and south jetties. The vessel's master had assumed control of the vessel's movement from the Chief Mate at approximately 1900 hours. At approximately 1943 hours, the vessel passed the sea buoy preparing to enter the entrance channel to the river. At 1944 hours, several rudder commands were given to the helmsman and the vessel "steadied up" on course 278 degrees, lined up to enter the channel. At about this time, the winds had shifted to north- northeast at approximately 16 knots. As the vessel entered the channel, the master and the chief mate were unable to see the range lights. At 1946 hours, the master ordered a slow ahead "bell" to reduce the ship's speed to 10 knots for transiting the channel. The range lights were still not visible to the master or chief mate. As the vessel passed buoys three and four, it was centered in the channel. The wind speed increased to approximately eighteen knots from the northeast. In order to counteract the effect of the wind and strong current, which was in a southerly direction, the master ordered the helmsman to come to starboard to course 283 degrees, in order to remain centered in the channel. The master determined that the vessel was being "set" to the south by the combined forces of the northeast wind and the southerly current and therefore had to steer further north to compensate for the set. He ordered courses of 285 degrees, 290 degrees and finally 295 degrees. At 1953 hours, he increased the vessel's speed from slow ahead to half speed ahead to provide for greater maneuverability. At approximately 1954 hours, he ordered full speed ahead, with an emergency bell, to the engineer after realizing that his ship was sideways in the channel and still being set to the south. At 1955 hours, however, the Fernpasset grounded on her port side on the St. Johns River entrance channel south jetty. Before he could contact the pilot, however, he received a call from the pilot boat stating that the Captain should proceed into the channel at a speed of 10 knots. The master informed the pilot that his vessel had run aground and that he needed tug assistance. At approximately 2015 hours, Captain Register boarded the grounded vessel. Captain Register was only able to board the vessel after great difficulty because of the rough weather. After he got aboard, he assisted in towing the vessel off the breakwater and out to sea and in assessing damages. The practice of boarding a pilot requires the vessel being boarded to slow down and make a "lee" or sheltered area on one side of the vessel, sheltered from winds and waves, to help the pilot boat approach and place the pilot aboard the ship. The pilot boat is a fifty-two foot boat, specially designed, with a platform over the deckhouse or cabin upon which the pilot stands in order to catch a rope ladder thrown over the side of the ship to be boarded. The ladder must be caught on the up-roll of the pilot boat so as to avoid the pilot's being crushed between the pilot boat and the side of the ship while he is on the rope ladder. Boarding a pilot is dangerous under any circumstances, and especially so during heavy, severe weather. Weather conditions off the mouth of the St. Johns River are usually much worse as to the wind and rough waves than inside the jetties. Captain Elija Guillory is a shipmaster who has an unlimited Master's License for any type of vessel. He has been a master mariner for twenty-five years. He is currently the master of the tanker, Neches. He has entered and exited the port of Jacksonville many times. In fact, he enters the Jacksonville port approximately one and one-half times per month on trips between Houston and Corpus Christi, Texas and Jacksonville. He is also a licensed pilot for the port of Houston, Texas. Captain Guillory was accepted as an expert in shipmaster's duties and practices. Captain Guillory's testimony establishes that the master of a vessel always makes the final decision about when and where to pick up a pilot. He is the person best able to, and responsible for, determining the safety of a given situation, both as to his vessel and the pilot's safety. Captain Guillory testified that, if it be assumed that a northeast wind of Beaufort force five or six, with a heavy swell, was operating that it would be a "borderline situation" as to the safety of picking up a pilot outside the jetties under those conditions. He testified that it would depend on the characteristics of the vessel and circumstances aboard the vessel. On his own ship, which has about thirty-five feet of free-board, (less area exposed to the northeast wind), he felt he would be able to have boarded the pilot outside. A car carrier, however, has a large "sail area" of approximately sixty feet above the water line extending approximately ninety percent of the length of the vessel. This might have made it risky to slow or stop a ship with that much sail area, with a strong wind blowing, in order to pick up a pilot outside the jetties in view of the southerly set caused by both the wind and current. Captain Guillory established that it is regular practice for him and other shipmasters to tell the pilot where he will pick the pilot up during episodes of rough weather. In nice weather, he gives the pilots a choice about where they are to be picked up. He established that that is the standard practice between shipmasters and pilots for East coast United States ports. Finally, Captain Guillory opined that the Captain of the vessel should not have decided to enter the port without a pilot. In any event, it is the practice of master mariners to make the decision at sea, before entering the port, as to the safety of the vessel, the crew and the boarding pilots. It is customary and common for the master to make a decision that, due to bad weather conditions, he will pick the pilot up inside the jetties at the port of Jacksonville. This is decided after the master has made an independent evaluation of all the safety factors to consider. Although the United States Coast Pilot, volume four, states that the pilot boarding area for Jacksonville is between the sea buoy and the outermost entrance channel buoy, this is merely a guide for optimum conditions. Pilots are normally and customarily boarded where ever the master feels it is safe to do so under then-prevailing conditions. In this instance, the master of the vessel made the final decision as to where to board the pilot. That decision was made before the pilot had been informed that the vessel to which he was assigned was approaching the sea buoy and that it was time for him to go on duty and prepare to board the vessel. He did not participate in the decision about picking up the pilot inside the jetties.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that the Administrative Complaint against the Respondent, Captain Clifton A. Register, should be dismissed in its entirety. DONE AND ORDERED this 9th day of December, 1988, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1988. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT: Accepted Accepted Accepted Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Reject as subordinate to the hearing officer's findings of fact on this subject matter. Accepted in part, but not as dispositive of any material issue presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Accepted, but not in and of itself dispositive of any material issues presented. Accepted, but not in and of itself dispositive of any material issues presented. Accepted. Rejected as not supported by the evidence of record, with the exception of the similarity consisting of the sea buoy being one and one-half miles from the entrance to the port between two rock jetties or breakwaters, which is not in and of itself dispositive of any material issues presented. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Even if Port Everglades was a port of essentially the same configuration as the Port of Jacksonville, which the record does not establish, the weather and sea conditions and condition and configuration of the vessel involved at the particular day and time in question has a great deal to do with consideration of what safe piloting practices are for such conditions. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as having little or no weight in finding facts and concluding the law applicable to this case, because of the subjective circumstances involved in deciding whether safe piloting practices have been observed, as delineated above. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 (904) 488-0062 Gary A. Bubb, Esquire Toole, Bubb, & Beale, P.A. 25th Floor Southern Bell Tower Post Office Box 1500 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Louella Cook, Executive Director Board of Pilot Commissioners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Michael D. Perez took the competitive examination in March 1990 and failed to obtain an overall passing grade, having obtained a failing grade in Inland Rules of the Road and Federal and State Laws and Rules. The deputy pilot examination given in Florida differs from most examinations given to determine minimum competency in that this examination is a selective type examination to select the best qualified, i.e., the one or two receiving the highest grade on the examination to fill existing vacancies. 2 3. Even if Petitioner succeeds in receiving a corrected grade for all three questions here challenged, he would obtain an over all passing grade on the examination but would not receive a grade high enough to result in his selection for a vacancy. Question 57 is intended to test the applicant's knowledge of the inland rules of the road. The sketch accompanying the question shows two sailing vessels in a crossing situation with the wind blowing in the direction vessel A is heading and on the port beam of vessel B. Both vessels show two sails (no masts) with the forward sail on the stem of the vessels with the second sail emanating near the vessels' midships. On vessel A the midships sail extends over the starboard side while the forward sail extends to port. On vessel B both sails extend over the starboard side of the vessel. Rule 12 of the inland rules of the road covers the conduct of sailing vessels in sight of each other in a crossing situation and provides: When each has the wind on a different side, the vessel which has the wind on the portside shall keep out of the way of the other; When both have the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel which is to leeward; and If a vessel with the wind on the portside sees a vessel to windward and cannot determine with certainty whether the other vessel has the wind on the port or the starboard side, she shall keep out of the way of the other. (b) For the purpose of this Rule the windward side shall be deemed to be the side opposite to that on which the mainsail is carried or, in the case of a vessel, the side opposite to that on which the largest four-an-aft sail is carried. Petitioner contends that because the diagram accompanying question 57 shows sails emanating from both the port and starboard side he was uncertain which was the main sail and therefore he marked answer C which says "B is the stand-on vessel because she is crossing from starboard to port." The correct answer is D which says "B is the stand-on vessel because A is to windward." The hand-drawn diagram showing one sail bottomed at the stem of the vessel can depict only a sloop-type vessel and this sail is a jib. Accordingly, the sketch showing the midship sail over the starboard side would indicate this sail is the mainsail and the vessel is deemed to have the wind to port. Accordingly, both vessels have the wind on the same side which makes the leeward vessel the stand-on vessel. Furthermore, answer C selected by Petitioner that B is the stand-on vessel because she is crossing from starboard to port would be correct for power driven vessels, but is not applicable to sailing vessels which are covered by Rule 12. For sailing vessels, the stand-on and give-way vessel in a crossing situation is determined by the wind direction in relation to the vessel's heading and not on whether one is to starboard or to port of the other. Question 82 involved the application of two signals required by the Inland Rules of the Road. This question, with accompanying diagram, involved a vessel backing from a slip into the channel and calls into play Rule 34 of the Inland Rules. Rule 34(g) states "When a power-driven vessel is leaving a dock or berth, she shall sound one prolonged blast." Rule 34(a) provides: "When power driven vessels are in sight of one another and meeting or crossing at a distance within half a mile of each other, each vessel underway, when maneuvering as authorized or required by these rules: (1)(i) shall indicate that maneuver by the following signals on her whistle: one short blast to mean "I intend to leave you on my port side;" two short blasts to mean "I intend to leave you on my starboard side;" and three short blast to mean "I am operating astern propulsion." Question 82 states: As shown in figure 208, vessel A is backing from a slip into the channel. Vessel B is one-half mile away and is approaching. She cannot be seen because of warehouse C. Both vessels are power driven. As A backs from the slip, she must sound: One prolonged blast only. One prolonged blast followed immediately by three short blasts. One prolonged blast and, when in sight of B, sound 3 short blasts. The correct answer is C. Petitioner gave answer A. A careful reading of question 82 shows a developing situation. A is backing from a slip into the channel. B is not in sight because of an obstruction. B later comes into view. The rule above quoted requires A to sound a prolonged blast when she starts from the slip into the channel and to sound 3 short blasts to notify B that she is going astern as soon as B comes into view. Accordingly, answer A is correct only during the initial stage of the maneuver. Question 173 involves a knowledge of requirements placed on foreign vessels entering U.S. ports and states: The radar installation aboard a foreign flag tank vessel of 38,000 GRT must have: At lest two marine radar systems far surface navigation which operate independently of each other. Short range and long range capability. Only one radar with true north features consisting of a display that is stabilized in azimuth. Only I is a correct statement. Only I and II are correct statements Only I and III are correct statements. I, II, and III are all correct statements. The correct answer is B. Petitioner selected D. Petitioner contends that since the question does not state the vessel was proceeding to or from a U.S. port the question is irrelevant as the federal code requirements are not applicable unless the vessel is destined for or departing from a port or place subject to the jurisdiction of the United States. However, on cross-examination Petitioner acknowledged that he was not aware of any question not relevant to a vessel coming into Florida waters, and he would assume there would be no questions testing an applicant's knowledge of statutes or not applicable to Florida ports. Nevertheless, since the question did not specify the vessel was subject to United States jurisdiction, he deemed all of the answers incorrect. He acknowledges that had the question included information the vessel was proceeding to or entering a United States port then answer B is correct.
Recommendation It is recommended that a final order be entered affirming the grades given to Michael D. Perez on the March 1990 examination and that this petition be dismissed. DONE and ENTERED this 5th day of February 1991, in Tallahassee, Florida. K.N. AYERS 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 5th day of February 1991. APPENDIX Respondent's proposed findings are accepted. Petitioner's proposed findings are accepted except: 10. Rejected. Accepted that Crawford based his opinion on his conclusion that the drawing is ambiguous; however it is no reasonable for an experienced seaman to confuse the main sail for the jib. Although Crawford testified that Rule 12 states in effect "if you are in doubt, assume you are the give-way vessel and keep out of the way," this ignores the entire philosophy of the rules to require the stand-on vessel to maintain course and speed so the give-way vessel can know what maneuver to expect. 20. Rejected. While the question states the vessels are not in sight of each other initially, since vessel A is backing from a slip, not the channel, it is so obvious that as soon as vessel A clears the warehouse obstruction Vessel B will be in sight. Then the requirement to sound the short blasts arises and failure to sound those blasts violates the rule, the rule requiring a backing vessel to notify ships in sight of her course. 24. Rejected. The diagram accompanying the question shows the two vessels in a crossing situation. 32. Rejected. COPIES FURNISHED: Margaret Matthews, Esquire Post Office Box 959 Tampa, Florida 33601-0959 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Anna Polk Acting Executive Director Board of Pilot Commissioners Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
