State can't be sued for pilot license

Judge rules in ship-grounding case

Posted: Wednesday, February 07, 2001

A judge has ruled Princess Cruises cannot sue the state for failing to discover that a marine pilot was taking an antidepressant medication when he grounded the Star Princess near Juneau in 1995.

Princess Cruises and two of its insurers claimed Alaska regulators were negligent in not learning about Capt. Robert Nerup's use of Effexor. They believe the prescription medicine may have impaired the pilot, contributing to an accident that caused about $27 million in damages.

The cruise line argued the state Board of Marine of Pilots should have learned about Nerup's medication before the 1995 grounding on Poundstone Rock, through additional medical standards during earlier license renewals and stricter investigations of his previous mishaps in Southeast Alaska.

While Juneau Superior Court Judge Patricia Collins agreed the standards urged by Princess are reasonable, she also said state procedures for licensing and investigations are policy decisions shielded by statutory immunity.

"Given the discretionary latitude afforded each of the above issues under Alaska law, this court is satisfied that the above issues are grounded in policy decisions that are not jury questions," Collins wrote.

In a summary judgment issued Feb. 1, the judge also questioned the assumption that knowledge of Nerup's medical history would have resulted in his Alaska pilot's license being revoked.

"There is no regulation, policy, or other limitation that prohibits a pilot from obtaining professional mental health treatment," Collins said.

Nerup was also the pilot of two commercial vessels in 1987 during separate accidents in Hobart Bay as well as the Island Princess in 1991 when it collided with another cruise ship, the Regent Sea, in Skagway's harbor.

The state disciplined him twice, suspending his license until he satisfied additional requirements and completed probation.

"It's our theory that pilot Nerup has a fairly extensive record of bad piloting in Alaska waters," Princess attorney Al Peacock said Tuesday from his office in Long Beach, Calif. "From our standpoint, the state had ample opportunity on prior casualties and investigation of those casualties to discover that pilot Nerup was suffering from depression and using antidepressant drugs that render him unfit to pilot vessels."

State Assistant Attorney General Susan Cox countered that Nerup's mental health was not an issue until after the 1995 grounding of the Star Princess. His use of Effexor was disclosed during the subsequent investigation by the National Transportation Safety Board.

Cox called it "disingenuous" for Princess to describe Nerup as incompetent for years when the cruise line stood by him after the 1991 Skagway accident.

"Princess and all its officers maintained that Capt. Nerup had done everything he could to avoid a collision and that the collision was the fault of the Regent Sea," Cox said this week. "One Princess captain called Nerup an excellent pilot. No one was concerned about a medical impairment issue."

The 805-foot, 63.5-ton Star Princess was traveling southbound from Skagway with more than 2,200 passengers and crew when it hit the submerged Poundstone Rock on June 23, 1995. The rock, about 15 miles northwest of Auke Bay, is marked by a flashing red light. The grounding cut two holes in the ship's hull and punctured 22 ballast and fuel tanks.

The ship made it to Auke Bay under its own power. Company officials estimated losses of $7 million from damage to the Star Princess and $20 million due to canceled sailings.

Nerup submitted new evidence after the accident that he suffered from a sleep disorder.

In her ruling, Collins referred to the NTSB investigation, which found Nerup's use of the drug Effexor probably did not affect his performance as a pilot.

"The safety board concluded that Capt. Nerup was probably 'chronically fatigued' as a result of obstructive sleep apnea, probably contributing to the grounding," Collins pointed out.

While the judge said Effexor was not a controlled substance, Princess hoped to prove the medication could have impaired Nerup.

"It's interesting that the anti-depressant he was on at the time of grounding warns that people shouldn't be operating heavy equipment, yet here he was in command of a cruise ship with 2,000 people on board," Peacock said.

Nerup, however, told the NTSB that his medication did not impair him and that his psychiatrist had not warned him to stay away from any activities while taking Effexor.

Alaska requires all large cruise and commercial ships traveling in state waters to have a pilot on board in the sometimes dangerous coastal conditions.

Nerup surrendered his Alaska pilot's license after the Poundstone Rock accident, promising never to apply for reinstatement.

Peacock, who had not seen the ruling, was unsure about further action.

"It would not surprise me if a decision was made to appeal," he said. "These types of discretionary immunity cases seem to be the type appealed to the Alaska Supreme Court for a final decision."

Mike Sica can be reached at msica@juneauempire.com.



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