Rivera v. M/T FOSSARINA
| Decision Date | 12 June 1987 |
| Docket Number | Civ. No. 85-0800 GG. |
| Citation | 663 F. Supp. 544 |
| Parties | José RIVERA, Plaintiff, v. M/T FOSSARINA, S/T GUADALUPE, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Harry A. Ezratty, San Juan, P.R., for plaintiff.
Hernando A. Rivera, Dohanie Sepúlveda, San Juan, P.R., Alexis D. Mattei, Hato Rey, P.R., Stephen R. Johnson, Bartlesville, Okl., Cheryl C. Burke, Washington, D.C., for defendants.
Plaintiff brought the present action seeking the payment of fees owed for pilot services allegedly rendered to defendants. Plaintiff asserts an admiralty and maritime claim within the meaning of Rule 9H of the Federal Rules of Civil Procedure. Jurisdiction is invoked pursuant to 28 U.S.C. § 1333.
Now pending are two motions for summary judgment and the replies thereto filed by the various defendants. We will proceed to address each motion individually.
In determining whether summary judgment is appropriate, the court must view the record in the light most favorable to the party opposing the motion, and indulge all inferences favorable to that party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Cía. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404 (1st Cir.1985); Raskiewicz v. Town of New Boston, 754 F.2d 38 (1st Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be granted only "if the pleadings, depositions, answers or interrogatories, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); General Office Products v. A.M. Capen's Sons, Inc., 780 F.2d 1077 (1st Cir. 1986). However, the mere existence of an alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment, the requirement is that there be no genuine issue of fact. Anderson, supra, 477 U.S. at ___, 106 S.Ct. at 2510. If a dispute about a material fact is "genuine", that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party, summary judgment should be denied.
Applying this standard and upon close examination of the record, we find the following facts are uncontested.
1. Defendant Phillips Puerto Rico Core, Inc. (PPRC) time-chartered the M/T FELANIA and M/T FOSSARINA which visited the Port of Las Mareas on the southern coast of Puerto Rico near the city of Guayama on several occasions.
2. Plaintiff, José Rivera, a licensed pilot assigned to the Port of Las Mareas by the Ports Authority of Puerto Rico, provided anchorage instructions to the masters of the M/T FELANIA and M/T FOSSARINA via radio from the Las Mareas dock, or from a tugboat, but did not board either vessel to assist it in anchoring.
3. On each occasion for which plaintiff is claiming pilotage fees, these vessels were anchored approximately 2.5 nautical miles offshore from Las Mareas and .5 nautical miles south of Las Mareas sea buoy.
4. The service for which plaintiff is requesting pilotage fees is the sending, via radio, of anchorage instructions to the vessels from the Las Mareas dock, or from a tugboat, and not from on board the M/T FELANIA or M/T FOSSARINA.
Plaintiff argues that the aforementioned vessels were led by radio to an anchorage point well within the three mile territorial waters of Puerto Rico, and therefore, the vessels owe compulsory pilotage fees regardless of whether a pilot was on board or not. Conversely, defendants PPRC and Phillips Petroleum Company1 argue that the vessels were anchored at a point approximately 2.5 nautical miles offshore and .5 nautical miles east-southeast of the Las Mareas sea buoy where a pilot's services are not required under the compulsory pilotage laws of Puerto Rico. Further, co-defendants contend that plaintiff's actions in sending anchoring instructions to the vessel's masters by radio from ashore or from a tugboat do not constitute pilotage services subject to compensation.
There is no controversy that Puerto Rico is a compulsory pilotage jurisdiction. Pursuant to 23 L.P.R.A. § 2412 (1982 Supp.):
No alien ship nor any ship of the United States navigating under registration may enter or leave a harbor without obtaining pilot service from a pilot licensed by the Authority for the said harbor.
The Puerto Rico Ports Authority controls pilotage service and issues pilot's licenses in Puerto Rico. 23 L.P.R.A. § 2401 and § 2403. Furthermore, every ship subject to pilot service which is offered such service and refuses the service, must nevertheless pay the statutory pilotage fees. 23 L.P.R.A. § 2414.
Plaintiff contends that at the point where the vessels were anchored — approximately 2.5 nautical miles offshore and .5 nautical miles east-southeast of Las Mareas sea buoy — they were in the compulsory pilotage waters of Las Mareas harbor, and thus, were required to pay him pilot fees regardless of whether his anchorage services were accepted or not.
However, pursuant to a letter dated August 9, 1984, Mr. Carlos Soler Aquino, former Executive Director of the Puerto Rico Ports Authority, rendered an official interpretation of the Dock and Harbor Act of 1968, as amended, 23 L.P.R.A. § 2101 et seq., and Regulation Number Three (3) as to the location of the compulsory pilotage waters at the Port of Las Mareas. It was the position of the Ports Authority that the Port of Las Mareas has no designated anchorage area and its limits are where Entrance Buoy Number One is located. Any vessels anchored outside the harbor limits, i.e. seaward of Entrance Buoy Number One, are not required to be assisted by a licensed pilot, and consequently, no pilotage fees need be satisfied. (See Exhibit A of motion for summary judgment which includes sworn statement of Mr. José R. Garcia, the Chief of the Maritime Bureau of the Ports Authority).
It is axiomatic that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Executive Director of the Ports Authority is charged with the regulation of pilot service in the harbors of Puerto Rico to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the interpretation of these laws. Clarke v. Securities Industries, ___ U.S. ___, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). Therefore, the interpretation by officials of the Ports Authority of the Act and regulations is entitled to substantial deference by this court given the Authority's expertise and its regulatory power over pilotage in Puerto Rico. Cf. Campos v. Puerto Rico Sun Oil, 536 F.2d 970, 974 (1st Cir.1976).
Since it is uncontroverted that the point where the vessels were anchored was well seaward of Entrance Buoy Number One, and as such, outside the limits of Port of Las Mareas, the payment of compulsory pilot fees is not warranted.
Also, plaintiff is claiming pilotage fees for the sending of anchorage instructions by radio from the Las Mareas dock, or from a tugboat, and not from on board the M/T FELANIA or FOSSARINA.
Defendants contend that plaintiff's radio instructions from somewhere other than the bridge of the anchoring vessels do not constitute pilotage services for which Rivera is entitled to pilot fees. This position finds substantial support in and is consistent with the language of several provisions of the Ports Authority's Regulation No. 3 (Resolution No. 156 of May 14, 1975) promulgated under the Dock and Harbor Act of 1968.
Section 24(a) of said regulation provides, in part: "The pilot is an advisor who joints (sic) the captain and the crew in their navigational function ... While the pilot is in the command bridge rendering his pilotage and advisory services, his instructions and the Captain's orders, such as speed, bearing, stops, aft movements, anchorage and mooring, shall be obeyed." Section 24(e) states, in part: "Under no circumstances, except in cases of great emergency and while the same is overcome, shall a ship subject to pilot service pursuant to the law and its regulations, enter, leave or move around the harbor without pilot service in the command bridge." Likewise, Section 30 in the pertinent reads: ...
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Rivera v. M/T Fossarina
...rendered in connection with the anchoring of vessels at the port. The district court granted defendants' motions for summary judgment, 663 F.Supp. 544, concluding, inter alia, that the vessels in question had anchored outside compulsory pilotage waters. Rivera now Appellees assert, and we a......