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Alaska Board of Marine Pilots v. Renwick (2/21/97), 936 P 2d 526
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, BOARD OF )
MARINE PILOTS, STATE OF ) Supreme Court No. S-7379
ALASKA, DEPARTMENT OF )
COMMERCE AND ECONOMIC ) Superior Court No.
DEVELOPMENT, DIVISION OF ) 3AN-94-10412 CIV
OCCUPATIONAL LICENSING, )
)
Appellants, )
)
v. )
)
DAVID RENWICK, ) O P I N I O N
)
Appellee. ) [No. 4782 - February 21, 1997]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Mark C. Rowland, Judge.
Appearances: Gayle A. Horetski and Stephen C.
Slotnick, Assistant Attorneys General, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellants. Richard D. Kibby and Dan E.
Dennis, Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
I. INTRODUCTION
The Board of Marine Pilots (Board) appeals the superior
court's reversal of the Board's order summarily suspending David
Renwick's marine pilot's license. We reverse and direct the
superior court to remand the case to the Board.
II. FACTS AND PROCEEDINGS
These are the facts as found by the Board: (EN1)
At approximately 5:30 p.m. on March 21, 1994,
Captain K. Yamaguchi, the master of the M/V REEFER
BADGER, contacted Lynda Smith of ALAMAR [Alaska Maritime
Agencies] by radio requesting the dispatch of a pilot
because the REEFER BADGER was dragging anchor in
Captain's Bay on Unalaska Island near Dutch Harbor,
Alaska. As Captain's Bay is within compulsory pilotage
waters, the Master needed a pilot to reposition the
vessel. (EN2)
Ms. Smith contacted Captain Thomas Dundas, an
Alaskan Marine Pilot, who was the dispatcher on duty for
Alaska Marine Pilots and Dispatching Service (AMP).
Captain Dundas dispatched Captain David Renwick to the
REEFER BADGER, and accompanied by another pilot, Captain
David Sanders, drove Renwick to the OSI Dock Facility at
Captain's Bay where Renwick boarded the pilot boat, the
tug LOWELL S, under the command of Captain Amos
Crauthers.
At all times relevant to the events in question, the
weather in Captain's Bay was severe; the wind was blowing
at 50-60 knots, with greater gusts, and seas were from
five to six feet high. The wind was from the S/SW,
blowing from the head (closed end) of the bay toward the
open end of the bay.
There are three designated anchorages in Captain's
Bay, numbered 1-3 from the head of the bay. Prior to
Renwick's dispatch to the REEFER BADGER, the vessel had
been in the designated anchorage No. 2. The M/V EIYO was
in the No. 3 anchorage to the north of the REEFER BADGER,
west of the OSI dock. The anchorages in Captain's Bay
are at the head (south) end of the bay, as the remainder
of the bay is generally too deep to provide safe
anchorage. Captain's Bay, especially to the south and
the west of the designated anchorages, contains numerous
navigational hazards in the forms of island, reefs and
shoals. Maneuvering room is limited.
When Renwick first boarded the REEFER BADGER, the
vessel was located inshore of anchorage No. 2, southwest
of the South Reef at OSI. The vessel was in danger due
to the proximity of the shoreline. Renwick assumed the
"conn"of the vessel, and was able to maneuver the REEFER
BADGER out of immediate danger at that time.
Renwick inquired as to the situation in regard to
the ship's anchor(s). He was unable to determine the
situation from the Master, in part because of the
Master's limited understanding of English. Consequently,
he made an inquiry of Captain Crauthers of the LOWELL S.
Captain Crauthers informed Renwick that there were two
anchors out, and that these anchors were "wrapped"
(fouled together). From the Second Mate, who spoke
English, Renwick confirmed that the vessel had two
anchors out; seven shackles to starboard, and two
shackles to port.
Renwick next maneuvered the REEFER BADGER out to its
original anchorage, at designated anchorage No. 2, and
proceeded to attempt to unfoul the anchors. Renwick gave
a number of commands in an attempt to free the anchor
chains by slacking one chain and heaving on the other.
Renwick failed to effectively communicate his commands to
the Master or to the mate who spoke English. The Master
of the REEFER BADGER was communicating orders to untangle
the anchors in Japanese to the Chief Mate, who was
located on the vessel's forecastle. As corroborated by
Captain Crauthers, who could hear the commands on the
radio, and observe the crew's actions, the crew at times
performed commands contrary to those given by Renwick.
In the course of attempts to untangle the anchors,
after approximately 45 minutes to one hour under Captain
Renwick's direction, the REEFER BADGER was blown
broadside to the wind, with its bow to the east. The
vessel at that time was about one quarter of a mile off
shore.
The REEFER BADGER was set downwind toward the
eastern shore of Captain's Bay, in the vicinity of OSI
Basin. At this point, the REEFER BADGER's bow was about
230 feet from the eastern shore.
Renwick ordered "let go anchor chain,"intending
that the anchor and anchor chain be detached. Instead,
the port anchor was dropped, still attached to the
vessel. "Let go anchor chain"is the command that would
be used when ordering the anchor dropped for the purpose
of anchoring the vessel.
Renwick ordered half astern followed by full astern.
At this time, the M/V EIYO called the REEFER BADGER and
warned them that they were coming too close to the EIYO.
The Master told the second officer to watch out the back,
to check the EIYO's position. The M/V EIYO was located
in the center of the bay, and was swinging or "weaving"
back and forth in the wind. Renwick was not watching the
EIYO, and Captain Yamaguchi notified him of the danger.
Renwick told Captain Sanders the next day that he was not
sure if the REEFER BADGER had cleared the EIYO before he
gave the engine astern order.
The REEFER BADGER reached a state of extremis due to
its proximity to the shore and its movement astern toward
the M/V EIYO. Captain Crauthers testified that if
someone had not taken action, the REEFER BADGER would
have grounded. The Master testified that he was worried
that if he had followed Renwick's astern order, the
REEFER BADGER would have collided with the EIYO.
To avoid a collision with the M/V EIYO, the Master
countermanded Renwick's astern engine order, rang stop on
the telegraph, then rang half ahead, and ordered
starboard rudder. The REEFER BADGER then moved away from
the EIYO, and turned away from the shore and toward the
closed end of the bay.
Renwick testified that he informed the Master that
he was leaving the ship. If this statement was made by
Renwick, it was not effectively communicated to the
Master, who testified that he "did not hear"anything
about Renwick leaving.
Renwick called Captain Crauthers on VHF radio,
stating, "this thing's about to go aground, I'm not going
to be on it when it happens. Come get me." Captain
Crauthers maneuvered the LOWELL S alongside the REEFER
BADGER as Renwick made a "hurried exit,"leaping from the
pilot ladder and landing on his upper chest on the bow of
the tug, where a crew member grabbed him to make sure he
didn't fall overboard.
After his departure from the REEFER BADGER, at
approximately 6:45 p.m., Renwick contacted Lynda Smith of
ALAMAR on the VHF radio to inform her that there was a
problem on the REEFER BADGER. Renwick informed Ms. Smith
that he was on the tug LOWELL S, that the crew was not
listening to him, and that he felt that the ship was
going to ground. Renwick also stated that he "couldn't
risk going through a whole court mess again,"a statement
that was not understood by Ms. Smith at the time. (EN3)
After she spoke with Renwick (on the tug), Ms. Smith
contacted the REEFER BADGER, and asked to speak to the
Master. The second officer told her that the captain was
"very busy"at that time. Shortly after, Ms. Smith was
able to speak to the Master directly. She spoke to the
Master in English, and asked him to please listen to the
pilot; Captain Yamaguchi replied that the pilot was on
the pilot boat. Believing that any misunderstanding
might be cleared up easier if someone spoke to the Master
in Japanese, Ms. Smith called the vessel owners, Ikitsu
Shipping Company in Tokyo, and asked them to call the
REEFER BADGER to find out what was going on. Ms. Smith's
intent was to get a pilot back on the ship so that the
REEFER BADGER would be moving in compliance with the law.
The Master succeeded in averting a collision with
the EIYO and a grounding on the shore of Captain's Bay,
under adverse conditions and in severe weather, while
Renwick was not on board. At Ms. Smith's request,
Renwick reboarded the REEFER BADGER, after it had moved
out of danger.
At 7:00 p.m., Renwick contacted AMP President
Captain Tom Dundas, who was acting as dispatcher for the
pilot association, from the REEFER BADGER by VHF radio.
During the radio conversation between Captain Dundas and
Renwick, Renwick stated that he was not going to be
aboard the vessel if it grounded because "he couldn't
afford it with his license problem." Captain Dundas
asked Renwick if he would guarantee that he would stay
with the vessel if it again moved into danger. Renwick
replied that he would not guarantee that he would stay
with the vessel. Captain Dundas decided to send another
pilot to the REEFER BADGER to relieve Renwick, and
dispatched himself to the vessel.
Upon his arrival at the REEFER BADGER, aboard the
tug LOWELL S, Captain Dundas decided that the best course
of action was for him to stay aboard the tug, to direct
the efforts to unfoul the anchors. Renwick agreed to
remain aboard the REEFER BADGER on the condition that,
should the vessel again move into danger, Captain Dundas
would immediately board the ship so that Renwick could
depart. Renwick testified that he intended to leave the
ship if it moved into danger again, whether Captain
Dundas relieved him or not.
By working together, Captain Dundas and Renwick
eventually were able to untangle the fouled anchors, and
the REEFER BADGER proceed to sea, escorted by the tug
LOWELL S with Captain Dundas aboard.
In May 1994 the Division of Occupational Licensing
(Division) petitioned the Board for an immediate suspension of
Renwick's marine pilot license. The Board granted the petition,
finding that Renwick's continued licensure "posed a clear and
immediate danger to the public health and safety." See
AS 08.01.075(c). (EN4) Renwick appealed the suspension and
requested a hearing. Testimony was taken and evidence introduced
at several hearings. In December 1994 the Board issued a decision
in which it found the facts referenced above. The Board upheld the
suspension, finding that Renwick violated applicable statutes and
regulations by abandoning the REEFER BADGER in mandatory pilotage
waters when it was in extremis.
Renwick appealed the Board's suspension order to the
superior court. (EN5) The superior court held that Renwick had no
duty to remain on board the REEFER BADGER after the master of the
vessel countermanded Renwick's orders. The court reversed the
Board's order and directed the Board to vacate its finding that
Renwick failed in his duty aboard the Reefer Badger. (EN6)
The Board appeals.
III. DISCUSSION
This court gives no deference to the decision of the
superior court when it acts as an intermediate court of appeal.
Usibelli Coal Mine, Inc. v. State, Dep't of Natural Resources, 921
P.2d 1134, 1141 (Alaska 1996). We review the Board's decision
using the reasonable basis standard and defer to the Board's
interpretation of its own regulations. Rose v. Commercial
Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982) ("[W]here
an agency interprets its own regulation . . . a deferential
standard of review properly recognizes that the agency is best able
to discern its intent in promulgating the regulation at issue.").
The Alaska Marine Pilotage Act (Act) requires vessels
traveling through Alaska's inland or coastal waters to employ
state-licensed marine pilots for safe navigation. AS 08.62.160.
A pilot so employed "has a primary duty to safely navigate vessels
under the pilot's direction and control and to protect life and
property and the marine environment while engaged in the provision
of pilot services." AS 08.62.157(a). The Act gives the Board
broad authority to adopt regulations providing for "proper and safe
pilotage . . . ." AS 08.62.040(b). Among other regulations, the
Board has promulgated 12 AAC 56.960(a), which provides that pilots
"shall be on duty piloting the vessel at all times when the vessel
is in transit in compulsory pilotage waters." Another regulation,
12 AAC 56.990(14), defines "on duty"to mean "being on the
navigating bridge of the vessel and having control of the vessel,
or being on the navigating bridge of the vessel and assisting the
master or navigational officer." In the present case, the Board
concluded that Renwick's "decision to abandon the REEFER BADGER
while it was in extremis was in violation of AS 08.62.157, and 12
AAC 56.960(a) as defined by 12 AAC 56.990(14) . . . ."
In reversing the Board, the superior court stated that
the legislative history of AS 08.62.157(a) "does not suggest the
legislature intended to change the duties of pilots at common law."
From this premise, and from the unsupported assumption that at
common law pilots had no duty to remain on board a vessel after the
master had reasserted command, the superior court concluded that 12
AAC 56.990(14) was "at variance"with AS 08.62.157(a):
The Board [] has construed [12 AAC 56.990(14)]
to impose a duty upon a marine pilot to remain
on board even when, as here, the master has
rightfully or wrongfully reasserted his
command authority over the vessel. By the
same reasoning, one might argue that this
definition allows the pilot to meet his
obligation to the vessel, its owners and the
State of Alaska, by simply standing by and
assisting. It is erroneous to do so. That
portion of 12 AAC 56.990(14) which reads
"being on the navigating bridge of the vessel
and assisting the master or navigational
officer"is at variance with [AS 08.62.157(a)]
and 12 AAC 56.960 if so interpreted.
Consistent with the superior court's reasoning, Renwick argues
that the Board's definition of "on duty"in 12 AAC 56.990(14)
contravenes AS 08.62.157(a).
Administrative agencies are given wide latitude when they
are interpreting statutes they have been charged to administer.
Whaley v. State, 438 P.2d 718, 722 (Alaska 1968) ("[T]he well
settled rule [] requires courts to give consideration and respect
to the contemporaneous construction of a statute by those charged
with its administration, and not to overrule such construction
except for weighty reasons."); Kelly v. Zamarello, 486 P.2d 906,
911 (Alaska 1971) ("[W]hen a regulation has been adopted under a
delegation of authority from the legislature to the administrative
agency to formulate policies and to act in the place of the
legislature, we should not examine the content of the regulation to
judge its wisdom, but should exercise a scope of review not unlike
that exercised with respect to a statute.").
Regulations are presumptively valid, State, Dep't of
Revenue v. Cosio, 858 P.2d 621, 624 (Alaska 1993), and will be
upheld as long as they are "consistent with and reasonably
necessary to implement the statutes authorizing [their] adoption."
Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 927 (Alaska 1983).
We explained in Cosio, however, that reasonable necessity is not a
requirement separate from consistency. If it were, courts would be
required to judge whether a particular administrative regulation is
desirable as a matter of policy. We stated in Cosio:
If we find the proper nexus between the
challenged regulation and the statutory
purpose (i.e., the regulation is consistent
with the statutory purpose), we do not
generally require a separate showing of
reasonable necessity. Strictly applied,
inquiry into whether a regulation is necessary
as a means to a legislative end would mire
this court in questions of public policy and
the advisability of possible alternatives.
Such a searching inquiry is beyond our
authority and expertise. It is a rare case
where a regulation, although not inconsistent
with the purpose of the statute, is wholly
superfluous to the achievement of that
purpose.
Cosio, 858 P.2d at 624 n.1. Thus the review we conduct in this
case is a review for consistency with the authorizing statute.
12 AAC 56.960(a) and 12 AAC 56.990(14), when read
together, require a pilot to remain on board a vessel and assist in
its navigation even if the master of the vessel countermands the
pilot's orders. These requirements are consistent with the purpose
of the Act. The Act is designed to insure "safe and proper
pilotage"upon Alaska's inland and coastal waters.
AS 08.62.040(b). Marine pilots are employed because of their
"particular knowledge of local conditions." Barbey Packing Co. v.
S.S. Stavros, 169 F. Supp. 897, 903 (D. Or. 1959). Because of
their familiarity with local conditions, marine pilots are
"indispensable"to a vessel's safe passage. Bach v. Trident
Steamship Co., Inc., 947 F.2d 1290, 1293 (5th Cir. 1991) (Brown,
J., dissenting). If pilots were at liberty to jump ship at their
choosing, the Board could reasonably conclude that vessels would be
left to navigate Alaska's inland waters at their peril, without the
valuable knowledge of local conditions pilots offer. The Board's
rule arguably furthers the Act's goal of providing safe and proper
pilotage by requiring compulsory pilots to remain on the navigating
bridge of vessels at all times.
Renwick argues that the Board's rule creates an
unacceptable division of authority aboard ship and contravenes the
common law rule that a compulsory pilot's orders must be obeyed.
It is true that in the ordinary course a compulsory pilot "is in
supreme command of the vessel while he is navigating it." Evans v.
United Arab Shipping Co. S.A.G., 4 F.3d 207, 218 (3d Cir. 1993).
However, at common law, the master of the vessel retained the
authority to countermand a pilot's orders in limited circumstances.
Delta Transload, Inc. v. The Navios Commander, 818 F.2d 445, 451
n.17 (5th Cir. 1987) ("[T]he master retains authority to
countermand the pilot's orders which would place the vessel in a
position of apparent and avoidable danger."); Avondale Indus. v.
Int'l Marine Carriers, 15 F.3d 489, 493 (5th Cir. 1994) (the master
of the vessel "has a responsibility to monitor the pilot's decision
making."); Hercules Carriers, Inc. v. State, 768 F.2d 1558, 1576
(11th Cir. 1985) ("[A] pilot's presence on board a vessel does not
relieve the master or watch officer of their duties and
obligations."); Barbey, 169 F. Supp. at 902 ("[S]hould it be
apparent to the master that his vessel is entering a zone of danger
and . . . the pilot fail[s] to . . . respond to the situation in a
manner which will insure the safety of the vessel, then the master
should and must relieve the pilot."); Camp v. The Marcellus, 4 F.
Cas. 1141, 1145 (D. Mass. 1860) ("[T]he power of the pilot does not
so far supersede the authority of the master, that the latter may
not, in case of obvious and certain disability, or gross ignorance
and palpable and imminently dangerous mistake, disobey his orders
and interfere for the protection of the ship and the lives of those
on board.").
While the Board's decision that Renwick was not relieved
of responsibility to remain "on duty"by the master's countermand
is consistent with the common law, the Board's decision need not
mirror the common law to be valid. The relevant inquiry is whether
12 AAC 56.990(14), which the Board applied to reach its decision,
is consistent with the Act. The Board could reasonably decide that
life, property, and the marine environment are better served by a
rule requiring pilots to remain on duty even if their orders are
countermanded. While "[d]ivided authority in a ship with reference
to the same subject-matter is certainly not to be encouraged,"The
Marcellus, 4 F. Cas. at 1145, the fact that a pilot's orders are
countermanded does not mean that the pilot is at liberty to leave
the ship. 12 AAC 56.990(14), which recognizes this rule, is
consistent with the Act's goal of promoting safe pilotage.
IV. CONCLUSION
We REVERSE the judgment of the superior court, and direct
that it REMAND the case to the Board for such further proceedings
as may come before it.
ENDNOTES:
1. "Respondent"has been changed to "Renwick." Paragraph numbers
and record citations have been deleted.
2. AS 08.62.160 provides:
A vessel subject to this chapter navigating
the inland or coastal water of or adjacent to
the state as determined by the board in
regulation shall employ a pilot holding a
valid license under this chapter. The board
shall define the mandatory pilotage water of
the state.
3. Pursuant to the terms of an agreement which settled a prior
licensing action against Renwick, if Renwick became subject to
sanction again the Board could take into account "the fact that
Captain Renwick was the pilot when the President Madison grounded
in Dutch Harbor in 1984, when the Kyokushin Maru grounded in Sand
Point in February 1991, and when the Kyokushin Maru grounded in
Popof Strait in March 1991."
4. AS 08.01.075(c) provides in part:
A board may summarily suspend a licensee
from the practice of the profession before a
final hearing is held or during an appeal if
the board finds that the licensee poses a
clear and immediate danger to the public
health and safety.
5. The superior court and the parties treated the proceeding as
an administrative appeal from a final judgment of the Board.
Because the Board addressed only the issue of the propriety of the
summary interim suspension, and a proceeding to revoke Renwick's
pilot's license was still pending before the Board, Renwick's
appropriate remedy was to petition the superior court for
discretionary review under Appellate Rule 401. See Appellate Rule
601(c). However, since the judgment of the superior court directed
the Board to dismiss the proceeding pending against Renwick, the
Board was required only to perform a ministerial act to dispose of
the case. Hence, the judgment of the superior court can be deemed
a "final judgment"for the purposes of appeal to this court.
Municipality of Anchorage v. Coffey, 893 P.2d 722, 725 n.6 (Alaska
1995) (remand ordering agency to perform purely ministerial act
qualified as final judgment for purposes of supreme court review).
6. On motion of the State, this court stayed the judgment of the
superior court pending resolution of this appeal.
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