STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-239

)

THOMAS A. BAGGETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 5, 1982, in Tampa, Florida. The issue for determination at the hearing was whether respondent's license as a pilot should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on January 18, 1982.

APPEARANCES

For Petitioner: W. B. Ewers

Special Trial Counsel

2170 Southeast 17th Street, Suite 204 Ft. Lauderdale, Florida 33316

For Respondent: C. Steven Yerrid

Holland and Knight Post Office Box 1288 Tampa, Florida 33601

INTRODUCTION

By an Administrative Complaint filed on January 18, 1982, respondent was charged with violating Sections 310.101(4) and (5), Florida Statutes, and Rules 21SS-8.07(1)(b) and (n) and 21SS-8.01(4), Florida Administrative Code, for which petitioner seeks to revoke, suspend or take other disciplinary action against his pilot's license. In general, it is alleged that respondent, while piloting the vessel IFNI, increased the speed of the IFNI to approximately 15 knots while passing a tug and barge loaded with gasoline, thus creating a large wake that caused the barge to dive, breaking the push wire. It is alleged that such action demonstrates respondent to be guilty of negligence, misconduct and incompetence in the performance of his duties. It is further alleged that respondent violated the terms of a one-year probation imposed by Order of the Board of Pilot Commissioners by having been found by the Board's Probable Cause Panel to have engaged in conduct which constitutes negligence, incompetence or misconduct.

At the hearing, the petitioner presented the testimony of Walter H. Williams, the Captain on the tug DIXIE PROGRESS; Donald L. Hyde, the first mate aboard the tug DIXIE PROGRESS, and Earnest Clothier, a pilot consultant for the State of Florida. Petitioner's Exhibits 1 through 3, 5, 7 and 8 were received into evidence. Respondent presented the testimony of Michael Schwartz, General Counsel for the Department of Professional Regulation, the respondent Thomas A. Baggett and James Gallagher, a harbor pilot in Tampa and President of the Florida State Pilots Association. Respondent's Exhibits 1, 3 and 6 were received into evidence.

Subsequent to the hearing, the parties filed proposed findings of fact and conclusions of law for consideration by the undersigned. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969.

   
   

2. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time.

   
   

3. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle.

   
   

4. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS.

   
   

5. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to

   ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead.

   
   

6. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide.

   
   

7. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke.

   
   

8. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake.

   
   

9. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap.

   
   

10. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors.

    
    

11. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct.

    
    

12. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present

    case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that

    
    

    "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint."

    
    

    In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.

    
    

    CONCLUSIONS OF LAW

    
    

13. The first count of the Administrative Complaint charges the respondent with "negligence, incompetence, or misconduct in the performance of piloting duties," in violation of Section 310.101(5), Florida Statutes, "failure to obtain or properly use information available to the pilot," in violation of Rule 22S-8.07(1)(b), Florida Administrative Code, and "any disregard of safe practice, whether intentional or unintentional which does not meet acceptable standards of safe pilotage," in violation of Rule 22S-8.07(1)(n), Florida Administrative Code. The second count charges respondent with "violating a lawful . . . order of the Board," in violation of Section 310.101(4), Florida Statutes, and the identical language contained in Rule 21SS-8.01(4), Florida Administrative Code.

    
    

14. The burden of proof in this proceeding is upon the petitioner to prove by substantial competent evidence that respondent Baggett engaged in activity which constituted negligence, incompetence or misconduct in the performance of piloting duties. Such violations must be

    
    

    "shown by evidence which weighs as 'sub- stantially' on a scale suitable for evidence as the penalty does on the scale of penal- ties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious." Bowling

    v. Dept. of Insurance, 394 So.2d 165, at 172 (Fla. 1st DCA 1981)

15. Here, there is competent substantial evidence demonstrating that, while at a distance of from 3 to 5 miles away, respondent radioed the tug DIXIE PROGRESS for the purpose of arranging for the meeting and passage of the two vessels. As is customary in the trade, he inquired if there was a pilot aboard the DIXIE PROGRESS. Upon obtaining a negative response, he informed first mate Hyde that he would meet the tug and barge on one whistle in "E" Cut. After stopping his engine twice because of dredging activities in "F" Cut, respondent set his engine at full ahead as he brought the IFNI into "E" Cut. At this point, the two vessels were approximately eight-tenths of a mile apart. The IFNI and the tug and barge passed each other some seven to eight minutes later. Waves approximately five to six feet in height caused the bow of the barge to dive under water. A push wire was broken as the barge came out of the water. These facts were established without conflict at the hearing.

    
    

16. What was not clearly established at the hearing, either because of unresolved conflicts in the testimony or because of a complete lack of evidence, was the speed at which the IFNI was travelling as it approached and passed the DIXIE PROGRESS and its barge and whether or not the incident -- the diving of the barge and the breaking of the push wire -- occurred as a direct result of either the speed at which the IFNI was travelling or the waves created from the passage. Respondent Baggett believed that he was travelling at a speed of some

    7.5 knots as he passed the other vessel. This would be within the average rate of speed of the IFNI travelling eight-tenths of a mile within seven or eight minutes. Those aboard the DIXIE PROGRESS estimated that the IFNI was travelling at 15 knots when the vessels passed each other. The facts underlying such an estimation of speed were not adduced. There was no evidence adduced as to the speed required by the IFNI to produce five to six foot waves. There was no evidence adduced that a reasonable and prudent pilot would be aware that a five to six foot wave would place the DIXIE PROGRESS and its barge in danger. There was no clear proof of the fact that it was the IFNI's passage that caused the five or six foot wave action. There was no evidence adduced as to the weather conditions existing on August 6, 1981, at approximately 1500 hours. There was no evidence as to the weight or specific configuration of the IFNI at that time. There was no evidence presented as to the proper speed at which the IFNI should have travelled when passing the tug and barge on this particular occasion. Instead, the petitioner's own witness testified that a reasonable and proper speed would be dependent upon all the circumstances. While that witness did opine that a speed of 15 knots would not be reasonable and prudent, it was not clearly demonstrated that the IFNI was travelling at that speed. Also, that opinion must be weighed against the testimony of Captain Williams that he often "pushed out" in six foot seas, that vessels often passed him at a speed of full ahead and that he considered this to be a "minor incident" and harbored no fears at the time of a loss of property or life. There is simply not enough evidence in the record of this proceeding to establish that respondent Baggett was guilty of negligence, incompetence or misconduct in piloting the IFNI at the time of the meeting with or passage between that vessel and the DIXIE PROGRESS with its barge.

    
    

17. Petitioner has also failed to prove that respondent violated a lawful order of the Board of Pilot Commissioners as charged in Count II of the Administrative Complaint. The "Final Order" of the Board dated July 28, 1981, approves and incorporates a Stipulation in an unrelated case and places the respondent Baggett on probation for a year. The Stipulation simply states that the order of probation will be deemed to have been violated, "subject to proving the allegations," if respondent is found to have engaged in conduct which constitutes negligence, incompetence or misconduct. It then goes on to provide what will occur in the event of such a violation; to wit: the filing of a new

    complaint and the waiver of any procedural objections on respondent's behalf to the reinstitution of the proposed Complaint which formed the basis for the Stipulation.

    
    

18. The only manner in which respondent could have violated the "Final Order" dated July 28, 1981, was to be found guilty as charged in the instant case and to object on procedural grounds to either the filing of the instant Complaint or to reinstitution of the Complaint in the Board's Case No. 0007227. The petitioner having failed to prove the allegations of the instant Administrative Complaint and there otherwise being no demonstration that respondent has violated any terms of the "probation," Stipulation or Final Order dated July 28, 1981, the respondent is not guilty of violating a lawful order of the Board as charged in Count II.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED.

Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.

COPIES FURNISHED:

C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601

W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204

Ft. Lauderdale, Florida 33316

Jane Raker, Executive Director Board of Pilot Commissioners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000239

Orders for Case No: 82-000239