Opinion
A147046
10-02-2018
CRAIG E. REEDER, Plaintiff and Appellant, v. BOARD OF PILOT COMMISSIONERS FOR THE BAYS OF SAN FRANCISCO, SAN PABLO, AND SUISUN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CPF-14-514043)
Craig E. Reeder, a retired inland pilot, appeals from the denial of his petition for a writ of mandate seeking to set aside a decision of the Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun (the board) denying his application for a pension. The board found that appellant failed to satisfy the final two of the five eligibility requirements for a pension specified in Harbors and Navigation Code section 1164, subdivision (c), which reads as follows: "Except as provided in subdivision (d) [which is inapplicable], an inland pilot shall be eligible for the pension provided in Section 1163 if the inland pilot meets all of the following requirements: [¶] (1) Held a license as an inland pilot and served at least 10 years in that capacity after January 1, 1987, or has attained 62 years of age, whichever occurs first. [¶] (2) Retired after January 1, 1987. [¶] (3) Is at least 60 years of age. [¶] (4) Since January 1, 1987, has held himself or herself out as providing pilotage assistance to the entire shipping industry consistent with the inland pilot's license. [¶] (5) For services provided after January 1, 1994, performs a minimum of 75 assignments per calendar year unless excused from performance of that requirement due to medical needs satisfactory to the board." The trial court held that the board's "decision was not arbitrary, capricious or entirely lacking in evidentiary support" and that "no writ of mandate is warranted." We conclude that the writ petition was properly denied.
All statutory references are to the Harbors and Navigation Code unless otherwise noted.
Discussion
Appellants' submissions to this court are deficient in several respects. His opening brief fails to contain record citations, in violation of California Rules of Court, rule 8.204(a)(1)(C), prompting the board to argue that his contentions may be disregarded. The clerk's transcript on appeal omits numerous relevant documents including appellant's very petition, and no portion of the administrative record except the board's decisions have been provided to this court. Nonetheless, from the included decisions of the board together with the parties' briefing, we are able to decide the issues on appeal on their merits and shall do so.
The board's decision dated March 28, 2011, confirming the determination made on February 24, 2011, and reconfirmed on administrative appeal on July 24, 2014, sets forth what appear to be undisputed facts relevant to whether appellant held himself out as providing pilotage assistance to the entire shipping industry, as required by section 1164, subdivision (c)(4). We take the following substantially verbatim from the board's March 28, 2011 findings.
Appellant was licensed continuously as an inland pilot from February 17, 1998 through February 16, 2001. He performed piloting services under his inland pilot's license after January 1, 1994, and ceased piloting on or about February 2000. Throughout his period of licensure as an inland pilot, he was employed as a master by Exxon Shipping Company and later by SeaRiver Maritime, a successor company to Exxon Shipping. He received six months vacation each year from Exxon Shipping and later SeaRiver Maritime. During vacation periods, he did some piloting under his inland pilot's license for Exxon Shipping and later SeaRiver Maritime. With the exception of one occasion where he provided volunteer piloting services on a historical paddle-wheel tugboat during a Maritime Day cruise, all of his piloting was done on vessels of these two companies during periods of vacation.
Appellant stated that he had an oral contract with an agent, Bill Capasso, to assist him in finding work as an inland pilot. He says he did not make any payments under the contract because Mr. Capasso never found him any work. Mr. Capasso could not remember the precise times that he had inquired on appellant's behalf about work, but said he was available for that purpose up until the time appellant quit working in 2000, and that when he and appellant would occasionally run into each other they would discuss possible piloting employment. Mr. Capasso stated that he never thought he would be able to find jobs providing income of more than about $2,000 a year for appellant because appellant had not, prior to the amalgamation of the bar pilots and the inland pilots in 1985, acquired a reputation with ship owners and ship's agents and because he had not worked with inland pilots, which would have provided a mechanism for trading overflow work back and forth among the few remaining inland pilots.
The yearly renewal of appellant's inland pilot license by the board under section 1142, subdivision (b) is a reflection of his piloting work for his employer during vacation periods. It does not imply a Board determination that he was piloting vessels for more than one company.
Appellant concedes "that to become a pilot one needed to make one's self known to the local industry . . . . There was a lot of hand shaking, introduction and reputation. A new entrant had to become known, experienced and proven." One means of becoming known and networking is membership in the Marine Exchange. The Marine Exchange facilitates marine commerce in various ways. During appellant's period of licensure, the Exchange published in alternate years the Golden Gate Atlas and Marine Exchange Membership Directory and Service Guide. Both publications listed the members and also the names of persons providing various types of maritime services, including piloting. Appellant never joined the Maritime Exchange, and his piloting services were not listed in the Exchange's publications.
Appellant states that he sought work from four entities: Westar Marine Services, a company whose work towing barges does not require a pilot's license; Williams Diamond, a ship's agent; Union Oil and Chevron Shipping. None of these four contacts resulted in piloting work. Another inland pilot, Captain Willy Slough, invited appellant on a river piloting trip and offered to share river piloting work. Appellant never responded to Captain Slough's offer. Appellant's piloting work while on vacation for his employers, Exxon Shipping and SeaRiver Maritime was intermittent.
The above facts—particularly appellant's failure to join the Maritime Exchange or to list his availability to provide piloting services in its publications—provide substantial evidence supporting the board's finding that appellant did not hold himself out to the entire shipping industry as a provider of piloting assistance. The board also included the following in its findings: "Had [appellant] made a diligent and good faith effort to hold himself out as an inland pilots available to the entire shipping industry over the 13 years he was licensed as an inland pilot, the board concludes that such an effort would have resulted in at least some piloting assignments from companies other than his employer." In response, appellant argues that holding out "does not mention or imply actual accomplishment. . . . [T]he fact that no one hired me was out of my control." But the board did not, as appellant implies, hold that "actual accomplishment"—i.e., performing piloting services for other employers—is a statutory requirement under subdivision (c)(4). The board simply considered appellant's failure to obtain any such employment over a 13-year period as a further indication that he was not in fact holding himself out to provide such services, a conclusion fully supported by the other evidence described above. The board's conclusion was neither unsupported nor arbitrary and independently justifies the denial of the requested pension.
Moreover, in the board's decision rejecting his administrative appeal, the board pointed out that appellant acknowledged "that he was employed by Exxon/SeaRiver Maritime for 29 years, that there was a defined-benefit pension plan that covered him, [and] that he had been and was now receiving pension benefits from Exxon." The board undoubtedly was correct that "[t]he persons whom the Legislature targeted for receipt of inland pension benefits were those state-licensed independent pilots who provided piloting services to the entire shipping industry. The Legislature did not intend to supplement the retirement benefits of pilots who were full-time employees of a single shipping company and who provided piloting services exclusively for that one company."
Because appellant's failure to meet the requirements of section 1164, subdivision (c)(4) alone requires affirmance of the trial court order upholding the denial of appellant's application for a pension, we need not address the second ground on which the board relied, that for services provided after January 1, 1994, appellant failed to perform a minimum of 75 assignments per calendar year (§ 1164, subd. (c)(5)). Suffice it to state that the board undoubtedly was correct that services performed for Exxon Shipping and SeaRiver Maritime did not apply against the minimum 75 assignments required, as appellant himself had originally agreed. Appellant's alternative contention that he is at least entitled to a pension calculated on his years of service before 1994 turns on the resolution of a statutory ambiguity: Is compliance with subdivision (c)(5) a condition for entitlement to any pension, as the board held, or does the provision simply limit the years of employment to be considered in calculating the amount of pension benefits under section 1163? Given the present state of the record and briefing before us, we need not answer that question.
Finally, there is no merit to appellant's contention that the denial of his application for a pension to which he was not entitled constitutes an unlawful forfeiture (e.g., Malone v. Western Conference of Teamsters Pension Trust (1980) 110 Cal.App.3d 538, 552 (con. opn. of Grodin, J.)) or that he was denied due process of law because he "never had a full administrative hearing" at which witnesses were examined and cross-examined. Not only does it appear that this argument was not developed in either the superior court or before the board, but appellant received notice and the opportunity of which he availed himself to present evidence and to be heard on the merits of his claim. There was no due process violation. (E.g., Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1188-1189.)
Disposition
The judgment is affirmed.
Pollak, Acting P.J. We concur: Jenkins, J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------