McDonald v. Department of Professional Regulation, Bd. of Pilot Com'rs, No. 89-246

CourtFlorida District Court of Appeals
Writing for the CourtERVIN; ZEHMER; WENTWORTH; ZEHMER; WENTWORTH
PartiesGeorge H. McDONALD, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PILOT COMMISSIONERS, Appellee. 582 So.2d 660, 16 Fla. L. Week. D1591
Decision Date13 June 1991
Docket NumberNo. 89-246

Page 660

582 So.2d 660
George H. McDONALD, Appellant,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PILOT
COMMISSIONERS, Appellee.
No. 89-246.
582 So.2d 660, 16 Fla. L. Week. D1591
District Court of Appeal of Florida,
First District.
June 13, 1991.

Page 661

Earl R. McMillin, Cape Canaveral, for appellant.

Lisa S. Nelson, H. Reynolds Sampson, Charles F. Tunnicliff and Kenneth E. Easley, Dept. of Professional Regulation, Tallahassee, for appellee.

ERVIN, Judge.

Appellant, George McDonald, a licensed harbor pilot, appeals from a final order of the Department of Professional Regulation (DPR), Board of Pilot Commissioners (Board), assessing a $500 fine for appellant's negligence in allowing the stern of the vessel he was piloting to be towed into the bank of the channel. Because the Board erroneously applied an evidentiary presumption in order to prove negligence on the part of McDonald, we reverse and remand for further proceedings.

On October 29, 1986, appellant undertook to pilot the Kalliope II, a Liberian flag vessel, from the Port of Tampa, where it was docked, out to Tampa Bay. The vessel is 584 feet in length, and, at the time of its departure, had a maximum draft (depth of the keel below the water line) of 34 feet 9.7 inches. The ship was docked bow (front) in with its starboard (right) side to the dock at berth 223.

In order to pilot the vessel out to sea, it was necessary for it to be backed out of its berth while the stern (rear) of the ship was pulled toward the north. As the channel was only 400 feet wide, the maneuvering of the ship was a difficult task, however, two tugs assisted in the undocking, one on the port (left) side and one at the stern. Captain McDonald chose not to use the ship's own engines or steering during the undocking, because of the deep draft. Twice during the undocking, the captain of the tug pulling the stern of the Kalliope warned McDonald that the ship appeared to be getting too close to the Davis Island seawall, which is located on the west side of the channel. When the Kalliope II was aligned in the channel heading south, appellant for the first time ordered the engines ahead slow. Almost immediately problems were detected with the steering mechanism and shortly afterward the steering failed completely. Tugs were called and the Kalliope was again docked.

Underwater divers surveyed the vessel and found heavy damage to the ship's rudder. The trailing edge of the rudder was bent toward the starboard and there were horizontal streaks of clay on the lower edge of the port side of the rudder, indicating that the rudder had been struck on the port side. Examination of the steering gear inside the steering compartment revealed that the steering equipment had been seriously damaged and was inoperable. The damage to both the rudder and the steering equipment was consistent with damage that would be expected if a ship struck the edge of the channel with its rudder while backing.

Divers searched the west side of the channel in the vicinity of berth 223 and discovered an impact area approximately forty feet long parallel to the channel with clay substrata welled upwards, giving the appearance that the embankment had been struck by a large, heavy force. This impression was found outside the channel proper at a depth of approximately twenty-two feet at low tide. The clay substrata found in the impression was consistent with the streaks of mud found on the rudder.

On November 5, 1986, McDonald filed a marine casualty report with the Board, indicating that he had experienced a steering gear malfunction while piloting the ship. McDonald reported that at no time did he feel that the ship was grounded or that it had struck any object that could have contributed to the damage sustained by the steering gear.

Page 662

Thereafter an administrative complaint was filed against McDonald, alleging that he had been negligent or inattentive by failing to exercise due care to ensure that the vessel did not overstand sternward to the point of crossing out of the channel and coming in contact with the west embankment of the channel. The matter proceeded to hearing at which DPR presented the testimony of Captain Hanson, a consultant retained by DPR to investigate the matter; Vincent Straigis, the pilot who docked the Kalliope II in berth 223 before this incident; Ray Odor, the diver who surveyed the damaged rudder and the impact area on the west side of the channel; Captain Rabren, who was piloting his own ship in the channel at the time the Kalliope was being backed into the channel and who had both visual and audio contact with the vessel and its tugs; Anthony Lubrano, the Kalliope's agent; and John McKay, a surveyor employed by the American Bureau of Shipping who surveyed the damaged steering gear. McDonald, who represented himself at the hearing, testified in his own behalf. It was his theory that the vessel was damaged either while still at dock due to overloading of cargo or when Straigis docked the ship.

The hearing officer entered an order recommending that McDonald be found negligent. In reaching his decision, the hearing officer applied the following evidentiary presumption borrowed from federal admiralty cases: evidence that the vessel was navigated outside the channel in the absence of severe weather conditions or mechanical difficulties is prima facie evidence of negligence in piloting the vessel. Woods v. United States Dep't of Transp., 681 F.2d 988, 990 (5th Cir.1982). However, due to the difficulty of the maneuver attempted, the hearing officer recommended a $500 fine, rather than suspension or revocation of McDonald's license. The Board basically adopted the recommended order as its final order, but concluded that other exigent circumstances besides equipment malfunction or severe weather conditions could cause a ship to be navigated outside the channel. Therefore, it modified the presumption set forth in the hearing officer's conclusions of law to state as follows:

Evidence that a vessel was navigated outside the channel where no malfunction of the vessel's equipment is involved, severe weather conditions are not involved, and in the absence of any exigent circumstances, is prima facie evidence of negligence in piloting a vessel.

(Emphasis added.) The Board agreed, however, that appellant was negligent in piloting the vessel and assessed a $500 fine. It is from this final order that McDonald appeals.

Although McDonald raises numerous points on appeal, we consider that only those points relating to the requirement that he file a marine casualty report and the use and application of the prima facie negligence presumption warrant discussion. Turning first to the marine casualty report, Section 310.111, Florida Statutes (Supp.1986), requires a pilot to report each collision, grounding, or other marine peril to the Board within forty-eight hours, and Section 310.101(1)(g), Florida Statutes (Supp.1986), provides that failing to file the report or making a false report constitute grounds for disciplinary action. While an argument might be made that these statutes have the effect of compelling a licensee to "testify" by filing the marine casualty report and that such reporting requirement, in effect, raises the threat of economic sanctions (deprivation of his license and thus livelihood) in the event he fails to file the report, 1 there is no provision in the statutes calling for the imposition of a sanction for assertion of the privilege not to make self-incriminating statements. 2 Thus, if appellant had filed the report and asserted therein his privilege at whatever

Page 663

time he believed a truthful statement would be self-incriminating, he would have complied with the reporting requirement under section 310.111 and would not be subject to disciplinary proceedings under section 310.101(1)(g). As this avenue was available to him, his fifth amendment right was not self-executing. See Minnesota v. Murphy, 465 U.S. 420, 434-39, 104 S.Ct. 1136, 1146-48, 79 L.Ed.2d 409, 424-27 (1984). Thus, appellant forfeited his fifth amendment privilege, because he failed to timely assert it.

The department and Board's use and application of the prima facie negligence presumption raises a more troublesome question. The disciplinary action was brought against appellant based upon violations of Section 310.101(1), Florida Statutes (Supp.1986), particularly subsections (b), (c), and (k) thereof. Those sections provide as follows:

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

* * *

(b) Failure to obtain or properly use information available to the pilot.

(c) Failure to navigate with caution in restricted visibility.

* * *

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

Both parties agree that DPR had the burden of proving the violations by clear and convincing evidence, rather than by a mere preponderance of the evidence. See Ferris v. Turlington, 510 So.2d 292, 294-95 (Fla.1987) (revocation of teaching certificate). In proving its case, however, DPR relied upon the prima facie negligence presumption arising from the evidence showing that the Kalliope II was navigated outside the channel where no equipment malfunction, severe weather, or other exigent circumstances were involved.

Evidentiary presumptions arise as a matter of law, therefore, "the power to establish them is reserved solely to the courts and the...

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9 practice notes
  • Osborne Stern and Co., Inc. v. Department of Banking and Finance, Div. of Securities and Investor Protection, No. 91-488
    • United States
    • Court of Appeal of Florida (US)
    • November 18, 1994
    ...or revocation of the respondent's harbor pilot license was a potential penalty. McDonald v. Department of Professional Regulation, 582 So.2d 660, 663 (Fla. 1st DCA 1991). 6 We have likewise applied that standard to the suspension of a real estate broker's license, Munch v. Department of Pro......
  • K.M.T. v. Department of Health and Rehabilitative Services, No. 91-2622
    • United States
    • Court of Appeal of Florida (US)
    • October 22, 1992
    ...the period of time during which L.B. was left unattended was, at most, 7 minutes. 5 See McDonald v. Dept. of Professional Regulation, 582 So.2d 660 (Fla. 1st DCA1991) (Zehmer, J., concurring) ("Whether McDonald's conduct deviated from the standards of care required of a licensed pilot under......
  • Turbeville v. Dep't of Fin. Servs., No. 1D17–221
    • United States
    • Court of Appeal of Florida (US)
    • May 3, 2018
    ...suspension proceedings are penal in nature, the fifth amendment right to remain silent applies." McDonald v. Dep't of Prof'l Regulation , 582 So.2d 660, 662 n.2 (Fla. 1st DCA 1991). Appellant argues that even though section 626.621(13), Florida Statutes, does not expressly subject him to di......
  • Golfcrest Nursing Home v. State, Agency for Health Care Admin., No. 94-4077
    • United States
    • Court of Appeal of Florida (US)
    • November 14, 1995
    ...See Young v. Dep't of Community Affairs, 625 So.2d 831 (Fla.1993); McDonald v. Dep't of Professional Regulation, Bd. of Pilot Com'rs, 582 So.2d 660, 670 (Fla. 1st DCA 1991). Further, the buyer is in the best position to show the reasonableness of its proposed purchase price, reflected in an......
  • Request a trial to view additional results
9 cases
  • Osborne Stern and Co., Inc. v. Department of Banking and Finance, Div. of Securities and Investor Protection, No. 91-488
    • United States
    • Court of Appeal of Florida (US)
    • November 18, 1994
    ...or revocation of the respondent's harbor pilot license was a potential penalty. McDonald v. Department of Professional Regulation, 582 So.2d 660, 663 (Fla. 1st DCA 1991). 6 We have likewise applied that standard to the suspension of a real estate broker's license, Munch v. Department of Pro......
  • K.M.T. v. Department of Health and Rehabilitative Services, No. 91-2622
    • United States
    • Court of Appeal of Florida (US)
    • October 22, 1992
    ...the period of time during which L.B. was left unattended was, at most, 7 minutes. 5 See McDonald v. Dept. of Professional Regulation, 582 So.2d 660 (Fla. 1st DCA1991) (Zehmer, J., concurring) ("Whether McDonald's conduct deviated from the standards of care required of a licensed pilot under......
  • Turbeville v. Dep't of Fin. Servs., No. 1D17–221
    • United States
    • Court of Appeal of Florida (US)
    • May 3, 2018
    ...suspension proceedings are penal in nature, the fifth amendment right to remain silent applies." McDonald v. Dep't of Prof'l Regulation , 582 So.2d 660, 662 n.2 (Fla. 1st DCA 1991). Appellant argues that even though section 626.621(13), Florida Statutes, does not expressly subject him to di......
  • Golfcrest Nursing Home v. State, Agency for Health Care Admin., No. 94-4077
    • United States
    • Court of Appeal of Florida (US)
    • November 14, 1995
    ...See Young v. Dep't of Community Affairs, 625 So.2d 831 (Fla.1993); McDonald v. Dep't of Professional Regulation, Bd. of Pilot Com'rs, 582 So.2d 660, 670 (Fla. 1st DCA 1991). Further, the buyer is in the best position to show the reasonableness of its proposed purchase price, reflected in an......
  • Request a trial to view additional results

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