88 - Pilotage at Sandy Hook, Sands Point or Execution Rocks; rates.

§ 88. Pilotage  at  Sandy Hook, Sands Point or Execution Rocks; rates.  1.   Every foreign vessel  and  every  American  vessel  under  register  entering or departing from the Port of New York by the way of Sandy Hook  or by the way of Sands Point or Execution Rocks, shall take a Sandy Hook  pilot licensed under the authority of this article or of the laws of the  state  of  New  Jersey  or  a  person heretofore licensed as a Hell Gate  pilot.  Whenever the services of such a pilot are refused,  the  master,  owners  or  consignees,  shall pay pilotage as if one had been employed.  Such pilotage shall be paid to the pilot first speaking or offering  his  services  as  pilot  to  such  vessel.  The  pilotage  authorized  to be  collected whenever a pilot shall be refused by a vessel  shall  be  sued  for  and recovered in the name of the pilot tendering such service. Such  pilotage, when recovered, shall belong to and may be  retained  by  such  pilot for his own benefit and use.    2.  It  shall  be unlawful for any person not licensed as a Sandy Hook  pilot under this article, or under the laws of the state of  New  Jersey  or  a person heretofore licensed as a Hell Gate pilot, to pilot or offer  to pilot any foreign vessel or vessel from a foreign port or any  vessel  sailing  under  register  to or from the port of New York, by the way of  Sandy Hook or by the way of Sands Point or Execution Rocks, and it shall  likewise be unlawful for any master or person on board a tug or tow-boat  to tow such a vessel to or from the port of New York by the way of Sandy  Hook or by the way of Sands Point or Execution Rocks unless such  vessel  shall  have  on  board a Sandy Hook pilot licensed under this article or  under the laws of the state of New Jersey.    3. Violation of subdivision two of this section shall be a misdemeanor  punishable  by  a  fine  not  exceeding  one  hundred  dollars   or   by  imprisonment  not  exceeding  sixty  days.  Any person employing such an  unlicensed person to act as pilot shall forfeit and pay the sum  of  one  hundred dollars to the board of commissioners of pilots.    4.  (a)  Every foreign vessel and every American vessel under register  entering or departing from the port of New York by the way of Sandy Hook  or by the way of Sands Point or Execution  Rocks  shall  be  subject  to  pilotage  fees,  at  the rates hereinafter specified, at the time of her  entrance or departure. If such pilot at the request of the master, owner  or consignee of any inbound vessel  or  at  the  request  of  the  agent  entering  such  vessel  at  the  port  of New York anchors or moors such  vessel at any place inside of Sandy Hook or inside  of  Sands  Point  or  Execution  Rocks,  or if such vessel be detained at quarantine, the same  pilotage fees shall be payable and the pilot entitled to his discharge.    (b) The following scale of charges shall be applicable:    (1) Upon the effective date of this paragraph and thereafter:    (i) The following rate table shall be used to calculate pilotage  fees  by multiplying total pilotage units per vessel by the designated factor,  then adding or subtracting the designated adjustment:        PILOTAGE UNITS          FACTOR              ADJUSTMENT        0 to 24.99               0                   +455        25 to 49.99              0                   +568        50 to 99.99              0                   +710        100 to 299.99           7.65                 -55        300 to 474.99           6.89                 +173        475 and over            0.91                 +3014     The  pilotage  fee charged shall be the fee calculated pursuant to the  rate table in this section plus seven and one-half (7.5%) percent of the  calculated fee.(ii) On and after the date of receipt, by the board  of  commissioners  of pilots of a joint request from the united New York Sandy Hook pilots'  benevolent  association  and  the  united  New Jersey Sandy Hook pilots'  benevolent association, pilotage fees shall be  calculated  pursuant  to  this  subparagraph.  Such  request  shall  be  provided  to the board of  commissioners of pilots within ten days of approval by the membership of  the united New York Sandy Hook pilots' benevolent  association  and  the  united   New   Jersey  Sandy  Hook  pilots'  benevolent  association  of  amendments  to  the  articles  of  association  consistent   with   this  subparagraph on or before December thirty-first, two thousand six.    1.    (A) (i) The following rate table shall be used to calculate base  pilotage tariffs:        PILOTAGE UNITS (P.U.)    TARIFF       0 to 24.99               $608       25 to 49.99              $714       50 to 99.99              $883       100 to 499.99            $(8.87 x P.U.)       500 and up               $((P.U. - 500) x 1.18) + 4435     (ii) Effective January first, two thousand eleven, the following  rate  table shall be used to calculate base pilotage tariffs:       PILOTAGE UNITS (P.U.)    TARIFF       0 to 24.99               $626       25 to 49.99              $735       50 to 99.99              $909       100 to 499.99            $(9.14 x P.U.)       500 and up               $((P.U. - 500) x 1.22) + 4570     (iii) Effective January first, two thousand twelve, the following rate  table shall be used to calculate base pilotage tariffs:       PILOTAGE UNITS (P.U.)    TARIFF       0 to 24.99               $651       25 to 49.99              $764       50 to 99.99              $945       100 to 499.99            $(9.51 x P.U.)       500 and up               $((P.U. - 500) x 1.27) + 4755    (B)  i. In addition to the base pilotage tariffs set forth in item (A)  of this subclause, there is hereby  established  a  surcharge  on  every  foreign  vessel  and  every  American  vessel under register entering or  departing from the port of New York by the way of Sandy Hook or  by  the  way  of  Sands  Point  or Execution Rocks. Such surcharge, as determined  quarterly by the Sandy Hook pilot's surcharge board,  shall  be  imposed  for  the  exclusive  purpose of the funding, on a sound actuarial basis,  the retirement benefits for Sandy Hook pilots', described below,  and  a  contribution per active Sandy Hook pilot equivalent to twelve percent of  each  Sandy  Hook  pilot's  earnings  from service as a Sandy Hook pilot  based upon the base pilotage tariffs set  forth  in  item  (A)  of  this  subclause  to  fund  a future pension, in whole or in part, or any other  replacement plan approved by the Sandy Hook pilots' surcharge board  and  established  from time to time for the benefit of Sandy Hook pilots as a  qualified plan under the Internal Revenue Code of 1986, as  amended,  as  more  specifically described in subclause six of this clause. The amount  of the surcharge set forth  herein  shall  not  exceed  the  greater  of  thirty-five percent of the sum of the base pilotage tariffs set forth in  item  (A)  of  this  subclause  and  the  surcharge  set  forth  in this  subparagraph;  or  seven   million   nine   hundred   thousand   dollars  ($7,900,000) in any calendar year.ii.  The  Sandy  Hook  pilots'  surcharge  board shall consist of four  members. Such board shall be composed of the president of the  board  of  commissioners  of  pilots of the state of New York, or his designee from  the board of commissioners, the president of the united New  York  Sandy  Hook pilots benevolent association, or his designee who must be a member  of  such  association,  the  president  of the board of commissioners of  pilots of the state of New Jersey, or his designee  from  the  board  of  commissioners,  and  the  president  of the United New Jersey Sandy Hook  pilots benevolent association, or his designee who must be a  member  of  such  association. The president of the board of commissioners of pilots  of the state of New Jersey and the president of the  United  New  Jersey  Sandy  Hook pilots benevolent association may decline to be part of said  Board, whereupon the position shall be filled by a member of  the  board  of  commissioners  of  pilots of New York so appointed by the president,  and/or a member of the United New York  Sandy  Hook  pilots'  benevolent  association  so appointed by the president of the association. The fifth  member,  if  necessary,  shall  be  appointed  by  a  majority  of   the  aforementioned  four  members  from  a  list  submitted  by the American  arbitration association from its lists of  commercial  arbitrators.  If,  after  submission  of  such  list, a majority of the abovementioned four  members fail to agree upon a single arbitrator as  the  "fifth  member",  then  the American arbitration association shall be authorized to select  and submit the name of the "fifth member" for appointment.  Such  "fifth  member"  shall  be appointed within ten days of a deadlocked vote of the  Sandy Hook pilot surcharge board. Such aforementioned members shall vote  at meetings called upon written notice mailed  seven  calendar  days  in  advance  of the meeting, to determine the rate of surcharge, assisted as  necessary by qualified actuaries or accountants,  authorized  hereby  in  subitem  i  of this item during each calendar quarter in time sufficient  for such surcharge to be in effect on the following January first, April  first, July first, and October first of each year and as  authorized  in  paragraph  (e)  of  this  subdivision  during each calendar year in time  sufficient for such surcharge to be in  effect  on  the  following  July  first  of  each  year.  When  the  Sandy  Hook  pilot surcharge board is  operating as  authorized  in  paragraph  (e)  of  this  subdivision,  an  additional  member, appointed by the governor to represent the interests  of the shipping industry shall  serve  on  the  board.  Such  additional  member,  upon  appointment by the governor, shall serve in such capacity  at the pleasure of the governor and until a replacement is appointed  by  the  governor.  Written notice of meetings may be waived if done so with  unanimous consent of all board members. Members of the Sandy Hook  pilot  surcharge  board  shall  be  subject  to section seventeen of the public  officers law.    iii. The amount of the surcharge described in subitem i of  this  item  on  the  date pilotage rates are computed pursuant to subitem ii of this  item shall be:             PILOTAGE UNITS                         TARIFF              0 to 24.99                          $150.60              25 to 49.99                         $179.00              50 to 99.99                         $220.50              100 to 299.99                    $((2.37x P.U.)-15              300 to 474.99                    $((2.14x P.U.)+53)              475 and up                       $((0.29x P.U.)+935)     (C) The scale of charges set forth in this clause is deemed a pilotage  fee and shall be subject to the provisions  of  section  ninety-five  of  this article.(D)  Every  foreign  vessel  and  every American vessel under register  entering or departing from the Port of New York by the way of Sandy Hook  or by the way of Sands Point or Execution Rocks  making  more  than  ten  port  calls  per  month shall receive a discount of fifty percent of the  charges  set  forth in items (A) and (B) of this subclause for each port  call in excess of ten. This  discount  is  to  be  calculated  for  each  calendar month.    2. (A) All retirement assets shall be used exclusively to pay a yearly  target  retirement  benefit to (aa) Sandy Hook pilots active on the date  pilotage rates are computed pursuant to this clause and thereafter, upon  retirement on or after the  age  of  sixty,  or  sick  retirement;  (bb)  retired  pilots or pilots receiving sick retirement benefits on the date  of adoption; and (cc) to surviving spouses of pilots,  as  provided  for  below.    (B)  No  individual  other  than  those  specified in item (A) of this  subclause shall be eligible  for  benefits  pursuant  to  the  surcharge  described  in  subitem  i  of  item  (B) of subclause one of this clause  without the approval of the Sandy Hook pilots' surcharge board.    (C) The funds generated by the surcharge imposed by subitem i of  item  (B)  of  subclause  one  of this clause and item (A) of subclause one of  this clause shall be administered by the joint board of trustees, or any  successors thereto, of the united New York Sandy Hook pilots' benevolent  association and the united New  Jersey  Sandy  Hook  pilots'  benevolent  association, or any successors thereto.    (D)  The surcharges pursuant to subitem i of item (B) of subclause one  of this clause and item (A) of subclause one of this  clause,  shall  be  collected  by  the  agent  of the Sandy Hook pilots. Funds generated for  these purposes shall be audited  annually  by  the  Surcharge  Board  to  ensure  proper  funding  for the purposes set forth in subitem i of item  (B) of subclause one of this clause.    3. (A) Each Sandy Hook pilot active on the  date  pilotage  rates  are  computed  pursuant  to  this  clause who retires or becomes eligible for  sick retirement benefits shall receive, a target yearly benefit computed  as a single life annuity, initially equal to fifty percent (50%) of  the  amount  which  is  equal  to the highest earnings from service as a full  branch Sandy Hook pilot based upon the base pilotage tariffs  set  forth  in  item  (A) of subclause one of this clause during the last three full  calendar years of service  as  an  active  Pilot  prior  to  retirement,  reduced  as  provided  in  subclause  six of this clause and adjusted as  provided in subclause seven of this clause.    (B) Each retired Sandy Hook pilot and each Sandy Hook pilot  receiving  sick  retirement  benefits  on  or  after  the  date  pilotage rates are  computed pursuant to this clause shall receive a target  yearly  benefit  computed  as  a single life annuity, initially equal to fifty percent of  the amount which is equal to the highest earnings from service of a full  branch  Sandy  Hook  pilot  during  calendar   year   nineteen   hundred  ninety-four  as  an  active  pilot, reduced by the amount determined for  such year by the joint board of trustees to be set aside for each active  Sandy Hook pilot's retirement, and adjusted  as  provided  in  subclause  seven of this clause.    (C)  Each  Sandy  Hook pilot who first entered service as a Sandy Hook  pilot after the date  pilotage  rates  are  computed  pursuant  to  this  clause,  shall  participate  in  such  qualified  retirement  program as  adopted by each such pilot and funded by such portion of  the  surcharge  allocated thereto by the surcharge board to provide a contribution of an  amount  equivalent  to twelve percent of the earnings from service as an  active Sandy Hook pilot based upon the base pilotage tariffs  set  forth  in  item  (A)  of  subclause  one  of  this clause. Such amount shall betransferred directly by the agent to such pilot's retirement account, it  being understood that such pilot's entire  retirement  benefit  will  be  provided solely by the account balance of such retirement account on the  date  of  retirement.  In  addition,  such  surcharge  shall  be used to  purchase life  and  disability  insurance  coverage  from  an  insurance  company  selected  by  the  joint  board  of  trustees.  Such disability  insurance shall provide a disability benefit computed as a  single  life  annuity,  equal  to  fifty percent (50%) of the amount which is equal to  such pilot's earnings from service as an active Sandy Hook  pilot  based  upon the base pilotage tariffs set forth in item (A) of subclause one of  this  clause  during the last full calendar year of service as an active  Sandy Hook pilot prior to disability, until the age  of  sixty.  In  the  event such disability insurance is unavailable, each such pilot eligible  for  sick  retirement  benefits  shall  receive, a target yearly benefit  computed as a single life annuity equal to the sum of ten percent of the  amount which is equal to the earnings from service as  an  active  Sandy  Hook pilot based upon the base pilotage tariffs set forth in item (A) of  subclause  one  of  this  clause  during  the last full calendar year of  service as an active Sandy Hook pilot prior to disability  and  one  and  sixth-tenth percent (1.6%) for each year of service after the first year  to  a  maximum  of  fifty  percent  of  the amount which is equal to the  earnings from service as an active Sandy Hook pilot based upon the  base  pilotage  tariffs  set forth in item (A) of subclause one of this clause  during the last full calendar year of service as an  active  Sandy  Hook  pilot prior to disability, until the age of sixty.    4.  (A) A Sandy Hook pilot eligible for benefits set forth in item (A)  of subclause three of this clause who retires, shall not be entitled  to  commence  receiving  benefits  until  the  commencement  of  the benefit  payment period next following the date on which such  pilot  retired  or  became  eligible  for sick retirement benefits. For accounting purposes,  the benefit payment periods shall consist of  a  full  calendar  quarter  commencing  on January first, April first, July first, and October first  of each year, but the first payments of benefits shall  be  made  during  the months of March, June, September, and December.    (B)  No  retired  Sandy  Hook  pilot shall commence receiving benefits  until a properly completed resignation as an active pilot  specifying  a  proposed  date  of  retirement  has  been  submitted  in  writing to the  appropriate board of trustees, or successor thereto, prior  to  November  first,  if  retirement  is  to  become effective on the first day of the  following January; prior to February first, if retirement is  to  become  effective  on  the first day of the following April; prior to May first,  if retirement is to become effective on the first day of  the  following  July;  and,  prior to August first, if retirement is to become effective  on the first day of the following October.    (C) For the purpose of the  computations  described  in  item  (A)  of  subclause  three  of  this  clause  service  by a pilot of more than six  months of such pilot's last calendar year as an active  pilot  shall  be  considered a full calendar year.    (D) If a retired Sandy Hook pilot or a Sandy Hook pilot receiving sick  retirement  benefits dies without a surviving spouse, the balance of the  target yearly pension benefit for the remainder of the  benefit  payment  period  shall  be  paid  to  the  deceased  pilot's estate or designated  beneficiary after which all rights to benefits shall terminate.    5. (A) The surviving spouse of a Sandy Hook pilot  described  in  item  (A)  of  subclause three of this clause who dies while in active service  shall receive a target yearly pension benefit equal to fifty percent  of  the  amount which such deceased pilot would have received under item (A)  of subclause three of this clause had  retirement  immediately  precededthe  date  of death, reduced as provided in subclause six of this clause  and adjusted as provided in subclause seven of this clause.    (B)  With  respect to Sandy Hook pilots described in items (A) and (B)  of subclause three of this clause, the surviving spouse  of  a  deceased  retired  Sandy  Hook pilot or a deceased Sandy Hook pilot receiving sick  retirement benefits on the date of death, shall receive a target  yearly  benefit  equal  to the deceased pilot's benefit for the remainder of the  benefit payment period in which death  occurred,  and  thereafter  fifty  percent  (50%)  of the amount received by the deceased pilot on the date  of death, adjusted as provided in subclause seven of this clause.    (C) Upon the death of the surviving spouse of a  deceased  Sandy  Hook  pilot  who  was  receiving  benefits,  the  balance of the target yearly  pension benefit for the remainder of the benefit payment period shall be  paid to the deceased surviving spouse's estate or designated beneficiary  after which all rights to benefits shall terminate.    6. The united New York Sandy Hook pilots' benevolent  association  and  the  united New Jersey Sandy Hook pilots' benevolent association, or any  successors thereto, or the pilots individually shall  adopt  such  other  money  purchase qualified plans under the Internal Revenue Code of 1986,  as amended, as approved by the Sandy Hook pilots' surcharge  board,  the  present  value  of  the aggregate contributions thereto provided through  funding under subitem i of item (B) of subclause  one  of  this  clause,  adjusted  annually  on January first of each year to reflect the average  thirty year treasury bond rate for the prior calendar  year  plus  fifty  basis  points  and  then restated as a single life annuity, shall offset  (but not below zero) upon retiring from service as an active Sandy  Hook  pilot  on  or  after  the  age  of  sixty,  or upon attaining the normal  retirement age  of  sixty  years  for  those  pilots  receiving  a  sick  retirement benefit, the target yearly pension benefits payable under the  plan from time to time to each beneficiary.    7.  The  joint  board  of  trustees or any committee appointed thereby  shall adjust the benefits described in items (A) and  (B)  of  subclause  three  of  this  clause  by  not  more  than  one-half of the cumulative  adjustment in the "Consumer Price Index - All Urban Consumers -  (CPI-U)  N.Y. - Northern N.J. - Long Island, NY-NJ-CT - All Items" on the earlier  of  each  third  anniversary  of  the  date  pilotage rates are computed  pursuant to this subparagraph or the date on which such  consumer  price  index  increases  by an increment of more than twelve percent (12%) from  the level in effect  on  the  date  (aa)  pilotage  rates  are  computed  pursuant to this subclause, or (bb) of any subsequent adjustment to such  rates.  These adjustments shall take place for a period of fifteen years  from  the  date  pilotage  rates are computed pursuant to this subclause  with respect to pilots described in item (B) of subclause three of  this  clause  and  for  a  period of fifteen years from the date of retirement  with respect to pilots described in item (A) of subclause three of  this  clause. Adjustments granted to retired pilots or their surviving spouses  retired less than the full three year interval between adjustments shall  have  such  adjustments pro-rated to the number of months they have been  retired prior to such adjustment. The determination by the  joint  board  of  trustees  or  any  committee appointed thereby of the amount of such  adjustment shall be final.    8. In the event that in any calendar year the surcharge  described  in  subitem  i of item (B) of subclause one of this clause is subject to the  limitation set forth in such subitem i the benefits payable under  items  (A),  (B)  and (C) of subclause three of this clause, items (A), (B) and  (C) of subclause five of this clause and subclause six  of  this  clause  and  the  portion  of  the surcharge allocable thereto, shall be reduced  pro-rata. However, in the event of such pro-rata  reduction,  the  jointboard of trustees shall arrange to fund out of the base pilotage tariffs  set forth in item (A) of subclause one of this clause the twelve percent  contribution  level  contemplated  in subitem i of item (B) of subclause  one  of  this  clause.  The  joint board of trustees shall determine the  amount of such reductions and the amount of such  funding  out  of  base  pilotage tariffs, which determinations shall be final.    9.  The  joint  board  of  trustees may, from time to time, adopt such  regulations as are deemed appropriate to  implement  the  provisions  of  this clause.    (2)  "Pilotage  Units" as used in this subdivision shall be determined  by multiplying the overall length of the vessel by the  extreme  breadth  by  the depth to the uppermost continuous deck and dividing the total by  ten thousand, as expressed by the following formula:                   Overall Length x Extreme Breadth x Depth                        to Uppermost Continuous Deck                  ________________________________________                                   10,000                            equals Pilotage Units     (c) Definitions. "Overall length" is the distance between the  forward  and after extremities of the vessel.    "Extreme  breadth"  is the maximum breadth to the outside of the shell  plating of the vessel.    "Depth" is the vertical distance at amidships from the top of the keel  plate to the uppermost continuous deck, fore and aft, and which  extends  to  the  sides  of  the  vessel.  The  continuity of a deck shall not be  considered to be affected by the existence of  openings,  including  but  not limited to tonnage openings, engine spaces or a step in the deck.    All measurements shall be in feet and inches (U.S.).    The  board  of  commissioners of pilots shall be the sole arbiter with  respect to a question concerning these definitions. The decision by  the  board shall be final.    (d) The measurements of overall length, extreme breadth, and depth, as  previously  defined,  shall be made available to the pilot by the master  or his agent for the purpose of computation of pilotage fees. Failure to  provide the measurements so required shall subject  the  vessel  to  the  maximum pilotage charge.    (e)  There  is  hereby  created  a  segregated fund to be known as the  capital expense fund. Such segregated fund shall be initially funded  by  the  increase  in  the  base pilotage tariff as set forth in item (A) of  subclause one of clause (ii) of subparagraph one  of  paragraph  (b)  of  this  subdivision  by  not more than seventy-five dollars per ship. Such  surcharge, upon annual review and approval  of  the  Sandy  Hook  pilots  surcharge  board, shall be imposed and used for the purposes of funding,  after  the  payment  of  reasonable  and  necessary  expenses,   capital  expenditures  including:  the payment of outstanding debt related to the  reengining of the pilot boat Sandy Hook; the payment of outstanding debt  related to the rebuilding of the bulkhead and pier  at  the  Sandy  Hook  Pilot  base  at Staten Island, New York; the payment of outstanding debt  related to and the extraordinary repairs to the pilot boat New York;  to  secure  four  new  pilot launches; and to fund all extraordinary capital  expenses (those  beyond  normal  operating  expenses)  approved  by  the  surcharge  board  along  with  portable  DGPS  pilot  units,  if  deemed  appropriate by the surcharge board.    Such surcharge may fund similar future expenditures upon annual review  and approval of the Sandy Hook  pilot  surcharge  board.  The  surcharge  board may set the rate not to exceed one hundred twenty-five dollars pership.  The  surcharge  board  is  hereby authorized to reduce or suspend  payment of the surcharge set forth  herein  to  take  into  account  any  monies  dedicated  or  awarded  to  the pilot capital needs from sources  other than the tariff and surcharges set forth in this article.