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State and federal regulation of pilots, piloting, and pilotage: a study in contrasts and conflict.

The navigation of merchant ships within ports and harbors is an activity with important implications for the health of coastal inhabitants, the economic welfare of ports and their hinterlands, the quality of the natural environment, the safety of vessel passengers and crew members, and the interests of shippers and carriers.

In recognition of the difficulties inherent in maneuvering large commercial vessels in ports and inland waterways, qualified pilots are legally required to control the navigation of most seagoing ships entering and leaving American ports, as set forth in 46 U.S.C. Sections 8501-8503.(1) These individuals must formally demonstrate their knowledge and qualifications through a licensing process prior to undertaking the highly specialized and demanding tasks associated with the piloting of merchant ships in confined waterways, and are subject to sanctions for improper performance of their duties.

A sharing of regulatory authority over pilots, piloting, and pilotage(2) between state and federal governments has led to the development of two basic classes of pilots and two general categories of pilot licenses in the U.S.(3) Because of this division, state and federal pilots are in competition in some ports,(4) and gaps in the regulatory system exist in some areas where the requirements for pilotage have not been well defined.(5)

These issues, combined with the fact that the vast majority of marine casualties have been found to be the result of human error, and increased public awareness of the high cost of merchant vessel casualties stemming from recent tanker accidents, have suggested the present analysis. This paper assesses the comparative strengths and weaknesses of two systems of pilot oversight: the federal approach, as administered by the U.S. Coast Guard, and the standards and methods employed by the state of Florida, as implemented by the Florida Department of Professional Regulation. This research addresses several dimensions of pilot regulation: (1) the establishment of standards for entry into the piloting profession, (2) the licensing and certification of pilots, (3) performance monitoring of pilots and disciplinary action against pilots who violate rules and regulations, and (4) the setting of pilotage rates and the regulation of competition among pilots.

BACKGROUND

Ships are generally in greater peril when close to land than they are when under way in the open sea.(6) The danger of collision is understandably greater in the heavier vessel traffic typical of harbors and confined waterways; the probability of grounding obviously rises as a vessel approaches the shoreline and underkeel clearance decreases; and the likelihood of allision is elevated as congested ports and crowded anchorages are transited.(7)

In the last century, merchant vessels have grown dramatically in size and technological sophistication, and the cargoes they carry into and out of ports have come to include an everwidening array of toxic and hazardous substances such as crude oil, refined petroleum products, chemicals, radioactive materials, and liquified gases. The hazards associated with ship accidents in harbor areas were demonstrated as long ago as 1917, when two merchant vessels carrying dangerous cargoes collided in the port of Halifax, Nova Scotia--an accident that resulted in the loss of some 1,600 lives and the ruin of the entire city.(8) More recently, in a disaster that focused public attention on the consequences of task failure in merchant vessel piloting, the crude carrier Exxon Valdez ran aground in pristine Prince William Sound, Alaska, causing an oil spill of catastrophic proportions.

It is widely agreed that the vast majority of marine casualties are the result of human error.(9) The percentage of accidents attributable to this factor has been estimated to be as high as 85 percent.(10) Probably because of the dominant role of judgment in piloting,(11) and the greater hazards associated with inshore navigation, human-error casualties appear to be more frequent in that context than in offshore environments.

Pilots--mariners possessing highly refined shiphandling skills and intimate knowledge of the physical geography and distinctive conditions characterizing the inland and coastal waterways in which they operate--have been employed to conduct the navigation of merchant vessels in ports, harbors, and rivers for at least the past 4,000 years.(12)

In the U.S., the laws of individual states have provided for the regulation of pilots since the 17th century. In 1789, Congress specified that pilots would be subject to state law until such time as the federal government saw fit to exercise its legislative authority in the matter.(13) In 1852, Congress passed the first federal act affecting pilots and pilotage. This act, which decreed that all engineers and pilots of steamships be licensed by federal inspectors, apparently resulted from the desire of legislators to improve marine safety.(14) State pilotage in America was alternately validated and annulled by Supreme Court decisions and Acts of Congress until 1871, when Congress passed legislation returning partial regulatory control over pilotage to the separate states.(15) The ensuing dichotomy of regulation produced gaps and overlaps that have survived to the present day.

Today, federal law contained in 46 U.S.C. Sections 8501 and 8502 mandates that inspected U.S. vessels(16) not sailing under register must be controlled by federally licensed pilots when under way, except on the high seas.(17) U.S. vessels sailing under register and ships of foreign registry are subject to the pilotage laws of individual states when under way upon the waters of those states. 46 U.S.C. Section 8503 addresses the possibility that states may elect not to require state pilots on board certain vessels engaged in foreign commerce, and reserves for the federal government the right to require the use of federal pilots in such cases.

The present dichotomous system of pilotage in the United States has created two basic types of pilot: (1) the state pilot, who operates under a license or commission granted by an individual state, and who generally belongs to a pilot association offering pilotage services in a certain port, and (2) the federal pilot, who serves under the authority of a federal pilot's license or endorsement issued by the U.S. Coast Guard,(18) and who may either belong to an established association or serve as part of a particular merchant ship's regular crew.(19) There are other types of pilots in the U.S., such as the Great Lakes Registered Pilot, who is licensed and registered by the Coast Guard to handle vessels operating in foreign trade (excluding U.S.-Canada intralake routes).(20) However, the majority of U.S. merchant vessel pilots fall into one of the two categories described above.

Because state pilots often hold federal licenses concurrently with their state certifications or commissions, they sometimes compete with federal pilots for the business of U.S. vessels in the coastwise trades.(21) In the New York-Connecticut port region, this rivalry has led to suggestions that marine safety is being compromised as a result of such competition.(22)

Competition between state and federal pilots, disputes and uncertainties over regulatory jurisdiction between state and federal agencies, and the outcry occasioned by the Exxon Valdez disaster have resulted in recent scrutiny of the safety record of pilots and discussion of a possible need for revision and amendment of current pilotage regulations. Calls for expansion of federal control over all pilots are now emanating from some quarters. For example, the National Transportation Safety Board has recommended that the Coast Guard require all merchant vessel pilots to hold federal licenses that are "legally superior" to state-issued licenses.(23)

A recent study commissioned by the American Pilots Association evaluated the relative incidence of human-error casualties among state pilots and non-state pilots, concluding that-given equivalent conditions--non-state pilots are ten to twenty times more likely to be involved in such accidents than their state pilot counterparts.(24) Because statistics permitting direct comparison of the casualty rates for pilots in each category were not available, the study relied on a methodology that has been strongly criticized by some non-state pilots.(25)

In September 1989, a U.S. Coast Guard "Pilotage Study Group" reported the outcome of its investigation into numerous issues involving pilotage in U.S. waters.(26) The study group's findings are discussed in later sections of this article.

METHODOLOGY

The strengths and weaknesses of the two systems under investigation were assessed through analysis of data obtained from a variety of official and unofficial sources.

On the state level, the Florida Statutes related to pilots, piloting, and pilotage were examined, as were the rules and regulations formulated by the Board of Pilot Commissioners to implement that legislation. These are primarily contained in Chapter 310, Florida Statutes, and 21SS-1, Florida Administrative Code, respectively. Materials customarily provided to prospective candidates for examination as deputy pilot and state pilot such as applications, information on requirements for licensure, examination descriptions, study guides, and delineations of administrative procedures were obtained from the Florida Department of Professional Regulation. Administrative staff members of the DPR contributed details on rates of pilotage and annual pilotage revenues.

Current federal laws, rules, and regulations addressing pilotage were scrutinized, as were Notices of Proposed Rulemaking pertaining to this subject that have been recently promulgated by the Coast Guard. Senior personnel serving in the Commercial Vessel Safety Branch of the Seventh Coast Guard District and in the Merchant Vessel Personnel Division at Coast Guard Headquarters in Washington, DC provided additional information, including unpublished documents related to pilots and pilotage.

Additional material was acquired from the American Pilots Association, the Florida State Pilots Association, active state and federal pilots, and candidates for deputy pilot positions.

The data thus collected were then analyzed with respect to the principal dimensions of pilot regulation previously mentioned: (1) candidate qualification, (2) licensing and certification, (3) performance monitoring and disciplinary action, and (4) rate setting.

FLORIDA STATE PILOTS

Pilotage has been regulated under Florida law since 1839, when the then-territory's legislative council commenced the licensing of pilots. On August 3, 1868 the state's first extensive legislation dealing with Pilot Commissioners, pilots, and pilotage--Chapter 1670--was passed. From 1880 to 1970, legislation concerning pilots and pilotage in the state changed very little, but in the 1970s and 1980s major revisions of the statutes took place, resulting in the centralization of pilot regulation and a tightening of licensing requirements.(27)

The Board of Pilot Commissioners (BPC), which is part of the Division of Professions of the Department of Professional Regulation (DPR), is given the authority to regulate state pilots and pilotage by Chapter 310 of the Florida Statutes. Chapter 310 specifies that the board is to be composed of ten members, five of whom are active, state-licensed pilots, and five of whom are Florida citizens who are not pilots. Of the five non-pilot members, two are to be professionally involved in the maritime industry, and the remaining three are not to have any connection or financial ties to the shipping business. The members of the board are appointed by Florida's governor for a term of four years.(28)

Currently, state pilots in Florida's commercial ports handle a wide variety of merchant vessels, including tankers, car carriers, container ships, dry bulk carriers, and cruise ships. The fifteen Florida ports in which pilots operate, listed in geographic order from east to west, are Fernandina, Jacksonville, Port Canaveral, Fort Pierce, West Palm Beach, Port Everglades, Miami, Key West, Boca Grande, Tampa, Port Manatee, St. Petersburg, Port St. Joe, Panama City, and Pensacola. A recent year saw more than 15,000 vessel arrivals in the state, representing the carriage of over 75 million tons of cargo and nearly 3 million passengers.(29)

Candidate Qualification

The Board of Pilot Commissioners oversees two distinct types of pilot: certificated deputy pilots and licensed state pilots. Certification as a deputy pilot permits entrance into a formal program of apprenticeship supervised by the state pilots in a given port. Section 310.071, Florida Statutes, provides for an initial probationary deputy pilot certificate valid for a period of nine months, and a second certificate good for two years, which is issued only after favorable performance evaluation by the board.

Applicants for certification as deputy pilot must: (1) be at least twenty-one years old, (2) have successfully completed twelve years of formal education or the equivalent thereof, (3) demonstrate good physical and mental health, and (4) have maritime experience that is acceptable to the board. The specifics of this last condition are contained in 21SS-5.0125, Florida Administrative Code, which lists acceptable combinations of maritime experience. The essence of these requirements can be described as two years' sea service, piloting service, or towing experience within the five years immediately preceding the examination, while holding a U.S. Coast Guard license as at least unlimited second mate, or master of ocean freight and towing vessels with a maximum tonnage limitation of not less than 1,000 gross tons. Prior experience in the navigational control of merchant vessels is stressed in the qualification standards.

In addition to meeting the above criteria, candidates for licensure as state pilot in a Florida port must: (1) have completed a two-year deputy pilot training program in that port, (2) hold a U.S. Coast Guard license or endorsement as unlimited First Class Pilot for the waters of the port, and (3) possess a valid U.S. Coast Guard deck officer's license of a grade equal to or higher than the lowest Coast Guard license held by any licensed state pilot in the port.(30) The most stringent example of this last provision is found in the Port of Jacksonville, where each state pilot and deputy pilot must hold a U.S. license as master of ocean steam or motor vessels of any gross tons.

Licensing and Certificating

Separate examinations have been developed by the Florida Department of Professional Regulation for deputy pilot certification and state pilot licensure. The subjects covered in deputy pilot examinations include: (1) International Rules of the Road, (2) Inland Rules of the Road, (3) seamanship and shiphandling, (4) aids to navigation, (5) local knowledge of the port area involved, (6) chartwork of the particular port, and (7) general information concerning pilotage, including federal and state pilotage laws and regulations, and other related matters such as may be deemed pertinent to the examination process. Judgments have been made by the board regarding the relative importance of these subject areas in the examination; scores on sections involving Rules of the Road, seamanship, and chartwork are weighted by a factor of 1.5 as compared to 1.0 for others. Passing scores are 90 percent or better on sections concerned with Rules of the Road and 75 percent or higher on all other subjects.(31)

In a recent administration, candidates for declared deputy pilot openings in four Florida ports were given an eight-hour exam consisting of two sections. The first part contained 175 multiple-choice questions on subjects other than local knowledge and chartwork. Four hours were allowed for completion of this portion of the exam. A second four-hour session incorporated an unknown number of multiple-choice items pertaining to local knowledge of individual port conditions, and drawing of the port area and its features in the form of a nautical chart.(32)

The local knowledge portion of the deputy pilot examination covers courses to steer in navigable channels; channel characteristics; navigational hazards; tides and tidal currents; dimensions and particulars of berths and wharves; prohibited, restricted, and security areas; local weather; and other features and procedures unique to the specific ports for which candidates seek certification as deputy pilots. Sources of information for this section of the exam are official publications such as the U.S. Coast Guard Light List and Local Notices to Mariners; National Ocean Survey Tide Tables, Tidal Current Tables, and United States Coast Pilot, and nautical charts of the ports and their approaches.(33)

Perhaps the most demanding portion of the deputy pilot certification exam is the chart drawing. Candidates are provided with a scale tracing derived from the chart(s) of the area for which they are being examined that includes the general outline of the land mass, latitude and longitude scales, and basic directional indications. Examinees are then expected to draw in all relevant features of the port and harbor area covered by the chart from memory. The level of accuracy and degree of detail expected in the chart drawing is high. Items to be depicted include navigable channels and their true courses; restricted areas; anchorages; spoil areas; shoal areas; security areas; regulated areas; cable crossings; pipelines; vertical clearances of bridges and power lines; depths of water and the year when each was charted; positions and characteristics of all buoys, lights, and other aids to navigation, including color, shape, type, number, height, light and sound characteristics, etc.; contours of turning basins and fairways; and any other details having a bearing on the navigation of commercial vessels.(34)

Examinations for licensure as a state pilot include: (1) International Rules of the Road, (2) Inland Rules of the Road, (3) local knowledge, and (4) a general examination similar in content to (7) above. The local knowledge section for state pilots contains items that are intended to assess knowledge acquired through personal experience in specific ports. These four areas are to be given equal weight in the grading of the exam. Passing scores are 90 percent and higher on the first two sections and 75 percent or more on the third. The minimum passing score for the fourth section is not defined in the rules.(35)

Performance Monitoring and Disciplinary Actions

Chapter 21SS-8 of the Florida Administrative Code provides that:

All collisions, groundings, strandings, or other marine perils sustained by vessels on which there was employed a licensed state pilot or certificated deputy pilot shall be reported to the office of the board or the piloting consultant within 48 hours of the occurrence...(36)

There is no minimum dollar value of damage specified above which the reporting requirement takes effect; the implication appears to be that all marine incidents involving vessels aboard which state pilots are employed must be reported, no matter how minor. Further, incidents which result in oil discharge, other pollution, physical injury, or death must be reported within twenty-four hours by telephone or telegram to the office of the board or the piloting consultant employed by the board.(37)

The monitoring of practitioner performance by the state is accomplished by the investigation of reported violations of established rules and deviations from standards of performance that result in complaints or casualties. Section 21SS-8.001 of the Florida Administrative Code clarifies the power of the Board of Pilot Commissioners to discipline or suspend state pilots and deputy pilots, and to revoke their licenses or certificates. Such actions can be taken after a hearing has found a pilot or deputy pilot guilty of: (1) failure to demonstrate the qualifications or standards for a license or certificate; (2) using narcotics or other type of chemical substance that impairs the ability to act as pilot or deputy pilot with reasonable skill and safety; (3) using alcohol to an extent that impairs the ability to fulfill the obligations of a pilot or deputy pilot, or that impairs the ability to act as pilot or deputy with reasonable skill and safety; (4) violating a lawful rule or order of the Board of Pilot Commissioners; or (5) negligence, incompetence, or misconduct in the performance of piloting duties.

In cases of reported marine casualties involving licensed state pilots or certificated deputy pilots, a probable cause panel of the Board of Pilot Commissioners determines whether there is sufficient evidence to indicate that violations of rules and regulations have occurred. This panel consists of three members, at least two of whom are to be state pilots.(38)

In the six-year period from 1978 to 1983, there were no complaints filed against any Florida state pilot or deputy pilot. Yet, during this time, there were 219 marine casualties reported involving state pilots and deputy pilots. Presumably, parties affected by casualties involving pilots (vessel owners, masters, port authorities, etc.) have not needed to file complaints because of the stringent state requirements for reporting even the most minor incidents and accidents. Table 1 summarizes the casualty reports received by the board and disciplinary actions taken against pilots and deputy pilots during this time span.(39)

Table 1. Casualty Reports and Disciplinary Actions Involving Florida State Pilots and Deputy Pilots, 1978-83
Casualty Reports
Year Number of Reports Most Common Type
1978 56 Grounding
1979 48 Grounding
1980 22 Grounding
1981 37 Grounding
1983 16 Grounding
 Total: 219
Disciplinary Actions
Type Number
Dismissal without prosecution 1
Letter of caution sent 9
Reprimand 3
Probation 2
Dismissed (prosecuted case) 8
Suspension 1
License reinstated after suspension 1
 Total: 25
Source: Staff of the Senate Economic, Community, and Consumer
Affairs Committee, A Review of Chapter 310, Florida Statutes
Relating to Pilots, Piloting, and Pilotage (|Tallahassee~:
Office of the Secretary of the Senate, 1983), pp. 36-37.


The small number of disciplinary actions reported in Table 1 belies the fact that very serious consequences have sometimes resulted from the negligence or poor judgment of state pilots.

On January 28, 1980, the U.S. Coast Guard Cutter BLACKTHORN and the U.S.-flag tanker CAPRICORN collided in Tampa Bay, an accident that resulted in the capsizing and sinking of the BLACKTHORN, and the deaths of twenty-three of her crew. The National Transportation Safety Board (NTSB) sited the failure of the cutter's commanding officer and the state pilot aboard the tanker to arrange a safe passing between the two vessels by radio or whistle signals as a contributing factor in this casualty.(40)

On May 9, 1980, the Liberian-flag bulk carrier M/V SUMMIT VENTURE struck the Sunshine Skyway Bridge in Tampa Bay in a heavy squall, destroying a support pier and causing some 1,297 feet of bridge deck and superstructure to collapse. A passenger bus, six cars, and a pickup truck fell 150 feet into the bay below, killing 35 people. The NTSB listed the failure of the pilot to abandon his transit of the span when a heavy rain squall obscured visual and radar bearings on the bridge and other navigational references as one of the probable causes of this disaster.(41)

Rate Setting and Regulation of Competition

Rates charged by pilots in the State of Florida are fixed by a subgroup of the Board of Pilot Commissioners in formal hearings. According to the provisions of Section 310.151, Florida Statutes, this subgroup is to be composed of one of the pilot members of the full board, one of the regular members who is professionally involved in the maritime industry, and the three regular members who have no official connection with the piloting profession or the shipping industry.(42)

Factors to be taken into account by the board when setting rates of pilotage include: (1) length, net tonnage, gross tonnage, deadweight tonnage, freeboard, and other dimensions of the vessels to be piloted; (2) draft of the vessels to be piloted; (3) the supply of, and demand for, pilotage services; (4) the public interest in maintaining safe, efficient, and reliable pilotage service; and (5) other relevant factors.(43)

The gross revenues from state pilotage are substantial. In fiscal year 1990, Florida pilots collected $20,442,847.78 from shipping companies for pilotage services rendered. The DPR currently assesses state pilots and deputy pilots 1.7 percent of their receipts to help defray the cost of its regulatory activities.(44)

The number of state pilots and deputy pilots is limited by the Board of Pilot Commissioners, which is empowered to determine how many of each will serve in individual ports on the basis of "the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services."(45)

Control of the number of practicing state pilots and certificated deputy pilots is accomplished by issuing licenses only where positions have been declared open; in this way, the state virtually eliminates competition among pilots. In Florida, receipt of a deputy pilot certificate or state pilot license is synonymous with appointment to the open position for which the candidate has been examined. Of those candidates who achieve passing scores in all sections of an exam, the one with the highest overall score is granted the license or certificate. Reports concerning a recent exam for two deputy pilot openings suggest that only two or three candidates out of approximately thirty Coast Guard-licensed deck officers were successful in passing all sections of the exam.

FEDERAL PILOTS

Candidate Qualification

Federal law does not provide for an apprentice or trainee class of pilot license. 46 C.F.R. Part 10 requires that a candidate for a license or endorsement as First Class pilot must: (1) be at least twenty-one years of age, (2) be a U.S. citizen, (3) demonstrate sound health, (4) complete first aid and CPR courses, (5) pass a character check, (6) fulfill established service requirements, and (7) meet route familiarization requirements.(46)

Under Coast Guard rules, service and route familiarization requirements are dependent upon the waterways involved and the type and size of vessels using them, and whether the candidate seeks an original license or endorsement of a license as master or mate of inspected vessels. The basic requirement for an original license as First Class Pilot is thirty-six months service in the deck department of steam or motor vessels, eighteen months of which must have been as quartermaster, wheelsman (helmsman), able seaman, apprentice pilot, or the equivalent. The required number of round trips over the route for which the license is sought ranges from twelve to twenty for an original license and eight to fifteen for an endorsement. For an unlimited license or endorsement, at least two-thirds of the qualifying round trips must have been aboard vessels of 1,600 gross tons or over. One of these round trips must have been made within the six months immediately preceding the date of application.(47)

Licensing and Certificating

On the federal level, examination subjects for an original license as First Class Pilot encompass many of the same subjects that are required for Coast Guard-issued master's and mate's licenses in the lower tonnage categories, especially those limited to inland and coastal waters.

Examination topics for an original First Class Pilot's license include piloting; aids to navigation; charts and navigational publications; seamanship; inland and international navigation rules (as appropriate); radar theory and observation; magnetic and gyro compass principles and use; meteorology and oceanography; ship maneuvering and handling; maritime law and regulations; and radiotelephone communications. Examinations for an original federal pilot's license also contain local knowledge and chart sketch sections.(48)

For endorsement of an existing license as master or mate of inspected vessels of 1,600 gross tons or over, the examination is limited to subjects pertaining to the specific route involved. These have historically been: (1) International and Inland navigation rules, (2) chart sketch, (3) local knowledge, and (4) such further examination as is deemed necessary by the examining Officer in Charge. The information required on the chart sketch is similar in nature to that previously described for the Florida deputy pilot exam. The Coast Guard's Pilotage Study Group found that Regional Examination Centers consistently expect an almost exact facsimile of area charts to be produced by candidates for federal pilot's licenses or endorsements; the group concluded that -- while the chart sketch requirement is an important part of the examination and should be retained--a less precise sketch should be accepted as evidence of local knowledge.(49)

The Pilotage Study Group also determined that exam questions on local knowledge contained in examinations for federal pilot's licenses and endorsements appear to be derived almost exclusively from material in the United States Coast Pilot. Because the exam items developed using this source as a basis are often quite general, they may fail to adequately assess a candidate's direct, personal knowledge of the special conditions and distinctive features of the port or route for which he or she is being examined.(50)

Coast Guard statistics suggest that the level of difficulty in examinations for First Class pilot licenses and endorsements has not been particularly high. In 1986, there were 741 such credentials issued and 23 failures, a pass rate of 97 percent.(51) 1987 figures show 558 issuances and only 4 failures, resulting in a pass rate of over 99 percent.(52) The Coast Guard has made major revisions in its licensing regulations and procedures in the past few years; perhaps later statistics will reveal a greater stringency in examinations for federal pilot's licenses and endorsements.

Performance Monitoring and Disciplinary Actions

46 CFR Section 4.05-1 addresses the requirements for reporting marine casualties as they relate to the "owner, agent, master, or person in charge of a vessel." The section provides that notice shall be given as soon as possible to the nearest Coast Guard Marine Safety or Marine Inspection Office in cases of casualty involving: (1) accidental groundings; (2) intentional groundings that meet other reporting criteria or create a hazard to navigation, the environment, or the safety of the vessel; (3) loss of main propulsion or steering, or any associated component or control system, the loss of which causes a reduction in the maneuvering capabilities of the vessel; (4) an occurrence materially and adversely affecting the seaworthiness of the vessel or her fitness for the route; (6) loss of life; (7) injury that requires medical treatment beyond first aid, or that renders a crew member unfit for normal duties; or (8) damage to property in excess of $25,000.(53)

In addition to the above-described notice, the owner, operator, charterer, agent, master, or person in charge of a vessel involved in a reportable marine casualty is required to submit a written report of the incident to the Coast Guard Officer in Charge, Marine Inspection, at the port in which the casualty occurred or at the nearest port of first arrival within five days.(54) Depending on the severity of a reported marine casualty, the Coast Guard proceeds with an investigation and--if appropriate--license suspension and revocation hearings. The details of these procedures are fully enumerated in 46 CFR Parts 4 and 5. A Coast Guard investigating officer may, at his or her discretion: prefer charges against the license-holder; close the case; refer the case to other Coast Guard officials for administrative action; accept the voluntary deposit of the license where there is evidence of mental or physical incompetence; accept voluntary surrender of the license where the individual wishes to avoid a hearing; or issue a written warning, which--if not rejected--becomes part of the mariner's record.(55)

Should a reported marine casualty result in suspension or revocation proceedings against a licensed federal pilot, the case is handed over to a civilian administrative law judge, who has for guidance the scale of "appropriate orders" contained in 46 CFR Section 5.569. This scale is a guideline for the imposition of penalties in cases of violation of law or regulation; the judge is not bound by the range of penalties suggested therein.(56)

The Coast Guard's marine casualty data base indicates that there were 460 "dynamic" ship accidents reported in the internal waters of the United States involving non-state pilots from 1983 to 1987.(57) A dynamic casualty is defined here as one in which the cause is other than system failure or a malfunction beyond the control of the pilot. Thus, human error plays a dominant role in the dynamic type of vessel casualty. The incidence of these casualties by year is shown in Figure 1.

It should be noted that the incidents represented by Figure 1 do not include towboats, fishing vessels, and non-self-propelled craft (e.g., barges); these often operate without pilots of the type being considered here. Further, although the legal requirements for reporting are clear, it is probable that a certain percentage of minor casualties go unreported, and therefore the number of actual casualties may be somewhat higher than that indicated by the figure.

Rate Setting and Regulation of Competition

Section 8501 of the United States Code, which addresses the state regulation of pilots, prohibits the charging of discriminatory rates of pilotage based on the port of origin and destination, means of propulsion, or public ownership of merchant vessels. This section also contains a proscription against the adoption of regulations by a state that would require coastwise vessels to take state pilots where they are exempted by federal law.(58)

According to Section 8502, United States Code, where federal pilots are required by law, they may not charge higher fees for their professional services than those rates that have been "customarily or legally established" by the states in which the pilotage services are being conducted. Section 8502 also provides that states may not impose upon federal pilots an obligation to obtain a state or other license; states are also forbidden to exact charges for pilotage where one is required by law.(59)

With the exception of these constraints, the federal government appears to have little interest in the rates charged by pilots for pilotage; nor does it seem to be particularly concerned with competition among pilots for business. There are no declarations of openings for federal pilot positions, simply because such formal positions do not exist. Generally, those applicants who satisfy the Coast Guard as to their fitness in terms of age, citizenship, character, professional experience, etc. and who are able to pass the requisite examination, are granted the appropriate pilot's license or endorsement. Thus certified, they are able to practice the piloting profession on board vessels that require federal pilots or that have the option to take state or federal pilots.

CRITIQUE

Candidate Qualification

It is evident that current Florida standards surpass federal standards in stringency and selectivity where candidate qualification is concerned. Because a candidate for licensure or certification as pilot or deputy pilot in the state of Florida is required to have a U.S. Coast Guard Merchant Marine Officer's license of relatively high order as a fundamental condition of eligibility, he or she has already met or exceeded the basic requirements established for licensure as a federal pilot.

The disparity between the two systems is most readily apparent when the threshold requirements for entry into the profession are examined. Under Florida rules, a candidate seeking certification as a deputy pilot must document a minimum of one year's experience as an officer in charge of a navigational watch on board a commercial vessel before he or she can compete to enter a carefully supervised apprenticeship. By contrast, an individual can qualify for a federal First Class Pilot's license or endorsement having sailed in no higher capacity than helmsman or able seaman, assuming he or she meets all other requirements. This suggests the real possibility that an individual with no experience of maritime command or even supervision of a navigational watch could legally assume control of a large vessel carrying hazardous cargo for its transit through a treacherous waterway or crowded harbor--a frightening prospect indeed!

In this connection, it is encouraging to note that the U.S. Coast Guard Pilotage Study Group has recommended that additional sea service be required of candidates for federal pilot licenses and endorsements. Specifically, the group suggested that six months of sea service under the authority of a mate's license or documented service in a formal apprentice pilot program would be a reasonable addition to the existing standards of pilot qualification.(60)

The system presently in operation in Florida ensures that deputy pilots have the benefit of a gradual and progressive increase in the magnitude of their piloting responsibilities, a strategy that may help to avoid the danger of a major mismatch between a pilot's developing skill and the difficulty of the task with which he or she is confronted. This scheme also permits the constant evaluation of a deputy pilot's proficiency by the state pilots in the port. While federal pilots working within associations may benefit from similar policies in some cases, there is at present no regulatory incentive for non-state pilots in Florida to follow this sort of incremental and controlled progression in their handling of larger and larger ships.

Licensing and Certificating

The evidence concerning license examination difficulty suggests a distribution of rigor similar to that apparent in the standards of candidate qualification for pilots in the state and federal systems. Although exam content appears not to diverge greatly between the two structures, the degree of difficulty built into tests formulated by each licensing authority seems to differ considerably, with the state standard being more exacting.

It appears that Coast Guard examinations for pilot licenses and endorsements are not particularly challenging, judging by the high pass rate on these exams. Although the fact that it is possible to retake Coast Guard license exams in the event of failure undoubtedly elevates the percentage of successes somewhat, the previously cited pass rates of 97 and 99 percent for the years sampled would seem to imply either that the majority of applicants are exceptionally knowledgeable and prepared, or that the examinations are not very demanding.

The ostensible objective of the Florida examinations for license as state pilot or certificate as deputy pilot is to select the most qualified candidates for open positions. By making these examinations difficult to pass, and by licensing only the candidate achieving the highest score, the DPR may accomplish this goal, but it also excludes other qualified candidates from entry into the profession. It seems clear, however, that the state of Florida standards for pilot licensing examinations are more rigorous than those of the federal government.

Performance Monitoring and Disciplinary Actions

Both Florida and federal systems have well articulated mechanisms for the disciplining of pilots. Both systems monitor performance on the basis of exceptions; that is, violations of rules and regulations are observed primarily when casualty reports and complaints are processed.

There is a significant anomaly in the fact that pilots serving under the authority of state licenses are virtually immune to prosecution by the Coast Guard against their federal licenses in the event of casualty. When a pilot who is handling a vessel that is subject to state pilotage is involved in a maritime accident, only the pilot's state license is vulnerable to suspension or revocation, and these actions can be taken only by the state that issued the license. This is true even when the federal license is a "condition of employment" for the state pilot. Although the Coast Guard can seek civil penalties for negligent operation in such cases, the courts have consistently held that the Coast Guard may not proceed against the federal license of a state pilot unless the pilot was operating under the authority of his federal license at the time of a casualty.(61)

The Coast Guard Pilotage Study Group has recognized the possibility that a negligent pilot could have his state license or certificate suspended or revoked as a result of his involvement in marine casualties, yet continue to operate under the authority of his federal license. The group recommended that "legislation be sought to extend the Coast Guard's authority over licenses which it issues to any employment which is directly related to the qualifications of that license."(62) This recommendation was made with an explicit disavowal of any intention to make the federal license superior to state licenses; the Coast Guard's objective is evidently to obtain control over negligent or incompetent pilots who are currently not subject to federal sanctions in cases involving the kind of scenario described above.

Rate Setting and Regulation of Competition

The system of pilotage oversight in effect in the state of Florida results in tight control of both the rates charged by state pilots and deputy pilots and competition among them.

The Board of Pilot Commissioners, in exercising its authority to set rates of pilotage and determine the number of pilots who are licensed for each port, has displayed no interest in open competition where pilots are concerned. The 1983 review of Chapter 310 by the Staff of the Senate Economic, Community, and Consumer Affairs Committee was generally critical of this anti-competitive regulatory system. The report recommended that the statutory authority of the board to determine the number of pilots in each port be removed, that the Department of Professional Regulation be required to issue licenses and certificates to all candidates who achieve passing scores on licensing examinations, and that the power of the board to set pilotage rates be revoked.(63) To date, none of these recommendations have been adopted by the Florida legislature.

Aside from the legal stipulation that rates charged by a federal pilot may not be higher than those that have been "customarily or legally established" by the state in which the pilot operates, the federal government seems content to let competition among pilots determine the rates they are able to charge, and to issue licenses to all who qualify for them. In this sense, the Florida and federal systems differ dramatically.

At the present time, the only semblance of competition among state pilots in Florida is in Tampa Bay, where a state pilot who formerly belonged to what was then the only pilot association in the port formed his own association of state and federal pilots in the early 1980s. This entrepreneur has faced numerous legal challenges in his attempts to compete with the original pilot's association, some of which have resulted from his exploitation of an imprecise statutory specification of the geographic areas in which state pilots are required. Despite these difficulties, the renegade's enterprise appears to be thriving.(64)

CONCLUSION

The two regulatory systems of pilot oversight under consideration clearly differ on important dimensions. The first disparity, and probably the most critical one, is the variation in the amount and quality of maritime service required to qualify for a license or certificate to pilot merchant vessels. It seems indisputable that federal standards are deficient in this respect--a point that has fortunately been noted by the Coast Guard itself. State standards, on the other hand, would appear to be more than adequate to ensure that only experienced and qualified individuals are eligible for licensure or certification as pilots or deputy pilots.

The difference between the state and federal systems in standards of qualification and the rigor of licensing examinations can probably be attributed to one major factor. While the Coast Guard attempts to ascertain that candidates possess at least the minimum level of knowledge and competence necessary to safely perform the duties of the station for which they seek licensure, the state of Florida--though obviously concerned with selecting the best qualified candidates for open positions--evidently uses exams and eligibility criteria as a means of limiting the number of active state pilots and certificated deputy pilots, thereby controlling competition.

Little justification exists to support proposals that federal pilot licenses be made "legally superior" to state licenses. However, the Coast Guard's pursuit of increased authority over the licenses it issues is based on a legitimate concern. No pilot should be able to cause a major marine casualty through negligence or incompetence and be permitted to continue practicing the profession with impunity, shielded from possible action against the credential that gave him or her access to employment as a pilot in the first place.

It is important to note that this paper's assessment of the strengths and weaknesses of two systems of pilotage oversight in no way implies any qualitative superiority of one type of pilot over another. Although the Florida system may be more effective in selecting the most qualified candidates for initial entry into the profession, this does not mean that practicing pilots in that system are necessarily more qualified or proficient than non-state pilots. Until a study is undertaken that permits a direct comparison of pilot-induced casualty rates, any such judgment is unwarranted.

The piloting of merchant vessels is an activity fraught with danger and pervaded by the constant threat of disaster. The piloting profession is a demanding one; it is a calling that allows little tolerance for mistakes. The consequences of error in the practice of piloting can be catastrophic. For these reasons, the selection, licensing, training, and performance monitoring of pilots are very important tasks. The deficiencies noted in the pilotage oversight schemes examined here deserve the most careful scrutiny by the architects of public policy, regulatory authorities, and others concerned with marine safety.

ENDNOTES

1 Merchant vessels entering or leave U.S. ports may be exempted from pilotage requirements as a result of their small tonnage, shallow draft, or non-self-propelled status.

2 The term "piloting" implies the act of conducting a vessel through pilot waters. "Pilotage" is variously used to describe this same function, or to describe the compensation paid by a vessel for professional services rendered by a pilot.

3 Pilotage Study Group, Report of the Pilotage Study Group, unpublished document, United States Coast Guard, 1989, p. 11.

4 D. F. White, "Stiff Competition on Long Island Sound Held Inducing Pilots into Taking Risks," Journal of Commerce and Commercial, November 13, 1989, p. 8B.

5 Same reference as note 3, p. 27.

6 E. A. Turpin and W. A. McEwen, Merchant Marine Officer's Handbook, 4th ed. (Centreville: Cornell Maritime, 1965), pp. 1-12.

7 Strictly speaking, the term "collision" in admiralty is defined as contact between two or more vessels that are under way, while "allision" refers to contact between a moving vessel and one that is not under way, or the striking of a fixed object such as an aid to navigation. In common usage, "collision" is used to described any of these events.

8 Panel on Human Error in Merchant Marine Safety, Human Error in Merchant Marine Safety, (Washington: National Academy of Sciences, 1976), p. 1.

9 Same reference as note 8, p. 2.

10 G. N. Naccara, "Putting Logic into Licensing," Proceedings of the Marine Safety Council, Vol. 40, No. 2 (1983), p. 36.

11 M. Grabowski, "Decision Support to Masters, Mates on Watch, and Pilots: the Piloting Expert System," Journal of Navigation, Vol. 43, No. 3 (1990), p. 364.

12 W. Bartlett-Prince, "Pilot--Take Charge," (Glasgow: Brown, Son & Ferguson, 1970), p. 13.

13 A. L. Parks, The Law of Tug, Tow, and Pilotage, 2nd ed. (Centreville: Cornell Maritime, 1982), p. 1012.

14 Same reference as note 13, p. 1013.

15 P. E. Kent and J. A. Binkley, "State Oversight of Pilotage in the United States: Louisiana as a Case Study," Transportation Quarterly, Vol. 44, No. 1 (1990), pp. 88-90.

16 Inspected vessels are those that, by virtue of their tonnage, cargo, or passenger capacity, are subject to examination and certification by the U.S. Coast Guard.

17 Generally, a U.S.-flag merchant vessel sailing under register is one that is engaged exclusively in foreign trade; a ship under enrollment is licensed for coastwise routes only.

18 An "endorsement" in this context is a written notation on a Coast-Guard-issued merchant marine officer's license granting authority in addition to that conferred by the basic license, or providing an increase in scope with respect to restrictions that may have been placed on the license at the time of issuance.

19 Aboard coastwise U.S. vessels, especially those operating on regular routes, the master and/or one or more of the deck officers may obtain pilotage endorsements on their federal licenses for the pilotage waters routinely transited by the vessel, thereby gaining the authority to serve as pilot during such passages. This practice can result in substantial savings for the ship owner, who is thus freed from the financial burden of pilotage assessments.

20 Same reference as note 3, p. 12.

21 A. R. Wastler, "Pilots Dispute Study's Findings," Journal of Commerce and Commercial, September 12, 1989, p. 3B.

22 Same reference as note 4, p. 8B.

23 Same reference as note 15, p. 86.

24 R. D. Leis, A Comparative Assessment of State Pilot Safety (Columbus: Battelle, 1989), p. 8.

25 Same reference as note 21, p. 3B.

26 Same reference as note 3.

27 Florida State Pilots Association, Piloting. Providing Safe Passage. Throughout Time. (Miami: Media/vision, 1987), N. page.

28 Division of Statutory Revision, Official Florida Statutes, 1989, Section 310.021 (Tallahassee: State of Florida, 1989).

29 Same reference as note 27.

30 Board of Pilot Commissioners, Florida Administrative Code, Section 21SS-5.0125 (2), (3) (Tallahassee: State of Florida, 1990).

31 Section 21SS-5.013, Florida Administrative Code.

32 Office of Examination Services, Deputy Pilot Candidate Information Booklet (|Tallahassee~: Florida Department of Professional Regulation, 1988), pp. 8-9.

33 Same reference as note 32, p. 10.

34 Same reference as note 32, pp. 10-11.

35 Section 21SS-5.014 (1)-(3), Florida Administrative Code.

36 Section 21SS-8.005 (1), (2), Florida Administrative Code.

37 Section 21SS-8.005 (1), (2), Florida Administrative Code.

38 Section 21SS-8.006, Florida Administrative Code.

39 Staff of the Senate Economic, Community, and Consumer Affairs Committee, A Review of Chapter 310, Florida Statutes Relating to Pilots, Piloting, and Pilotage, (|Tallahassee~: Office of the Secretary of the Senate, 1983), pp. 36-37.

40 National Transportation Safety Board, Marine Accident Report: Collision of U.S. Coast Guard Cutter BLACKTHORN and U.S. Tankship CAPRICORN, Tampa Bay, Florida, January 28, 1980, Report no. NTSB-MAR80-14, (National Transportation Safety Board, Bureau of Accident Investigation, 1980).

41 National Transportation Safety Board, Ramming of the Sunshine Skyway Bridge by the Liberian Bulk Carrier SUMMIT VENTURE, Tampa Bay, Florida, May 9, 1980, Report no. NTSB-MAR-81-3 (National Transportation Safety Board, Bureau of Accident Investigation, 1981).

42 Section 310.151 (1), Florida Statutes.

43 Section 310.151 (4) (a)-(e), Florida Statutes.

44 E. Rice, State of Florida Department of Professional Regulation, personal communication, July 1, 1991.

45 Section 21SS-5.009 (1), Florida Administrative Code.

46 46 Code of Federal Regulations, Sections 10.205, 10.701-10.713 (Washington: Office of the Federal Register, 1990).

47 46 CFR, Section 10.701-10.713.

48 46 CFR, Section 10.910.

49 Same reference as note 3, p.22.

50 Same reference as note 3, p. 31.

51 "1986 Merchant Marine Officer Licenses Issued," Proceedings of the Marine Safety Council, Vol. 45, No. 6 (1988), p. 195.

52 "1987 Merchant Marine Officer Licenses Issued," Proceedings of the Marine Safety Council, Vol. 47, No. 1 (1990), p. 17.

53 46 CFR, Section 4.05-1 (a)-(f).

54 46 CFR, Section 4.05-10.

55 46 CFR, Sections 5.105-5.203.

56 46 CFR, Section 5.569.

57 Same reference as note 24, p. 34.

58 46 United States Code Annotated, Section 8501 (c), (d), (St. Paul: West, 1990).

59 Section 8502 (b)-(d), United States Code Annotated.

60 Same reference as note 3, p. 21.

61 "Coast Guard Docket," Soundings (newsletter of the Professional Mariners Alliance), July 7, 1986, pp. 3-4.

62 Same reference as note 39, p. 28.

63 Same reference as note 39, pp. 64-74.

64 W. T. Miller, "Pilot Association Encountering Rough Waters," The Professional Mariner, Vol. 1, No. 2 (1987), pp. 26-27.

Mr. Helmick is a master mariner holding a U.S. Coast Guard license as master of ocean steam, motor, auxiliary sail, and sail vessels of any gross tons, and is presently a Ph.D. candidate and research assistant in the School of Business Administration, University of Miami, Coral Gables, Florida 33124. Mr. Glaskowsky, EM-AST&L, is professor of management and logistics in the School of Business Administration, University of Miami.
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Author:Helmick, Jon S.; Glaskowsky, Nicholas A., Jr.
Publication:Transportation Journal
Date:Jun 22, 1992
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