STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PILOT COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4860

)

HENRY A. STEELE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice in the above-styled case before Stephen F. Dean duly assigned Hearing Officer of the Division of Administrative Hearings on March 18, 1992, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Roberta L. Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Robert E. Warren, Esquire

Taylor, Moseley & Joyner

501 West Bay Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent, while acting as pilot aboard the M/V Itanage in the St.

John's River, Jacksonville, Florida on August 29, 1990, engaged in a practice which did not met acceptable standards of safe piloting. (F.S.A. s.

310.101(1)(k))

PRELIMINARY STATEMENT

Prior to commencement of the hearing, counsel for Respondent advised the Hearing Officer of a potential conflict of interest. Specifically, it was noted that Shell Oil Company is suing Respondent for damages resulting from the incident which is the subject of this hearing. Counsel for Shell Oil, who may have a monetary interest in the outcome of that litigation, is the brother of a member of the Board of Pilot Commissioners, who may be involved in the adjudication of this matter. While this relationship has no bearing on the instant hearing, Respondent preserves the issue in the event the member of the Board of Pilot Commissioners is asked at a future date to recuse himself.

The parties stipulated to the following:

1. From May 1988 to August 1990 the M/V Itanage entered and exited the Port of Jacksonville under pilotage fifteen times without navigational incident.

2. The crew was aboard M/V Itanage at the time of the allision 1/ as was also aboard on the last previous voyage of the M/V Itanage into and out of Jacksonville.

Evidenced received at hearing:

WITNESSES

1. For Petitioner:

   1. Tug Captains Hiram Danforth and Frederick R. Thomas

   2. Shell Oil representative Charles Westmoreland.

   3. Coast Guard investigators Charles A. Howard and Michael J. Kelly

   4. Petitioners experts Captain John C. Hanson and George H. Reid and Captain Worters by deposition

2. For Respondent:

Respondent Captain Henry A. Steele, and Respondent's piloting expert Captain Harry Breitenfeld formerly of the Sandy Hook Pilots, New York. Captain O'Pezio by deposition.

EXHIBITS

1. Petitioner's Exhibits:

   1. U.S. Coast Guard investigation.

   2. Investigation Report of Captain John

      C. Hanson.

   3. Portion of St. John's River Chart.

   4. Resume of Captain John C. Hanson.

   5. Diagram of Courses drawn by Captain John S. Hanson.

   6. Curriculum Vitae of Harry Reid.

   7. Extracts from treatises.

   8. State Disciplinary History of Respondent.

   9. Shell Oil Documents.

2. Hearing Officer's Exhibits:

1. Enlarged portion of St. John's River Chart.

An original and two copies of the transcript of the hearing were prepared. The original was mailed to the Hearing Officer. Copies were provided to counsel on or about March 26, 1992. On April 15, 1992, Petitioner filed a motion to extend the time to file Proposed Recommended Orders. Respondent did not oppose the motion. The Hearing Officer entered an order extending the time for filing Proposed Recommended Orders until May 11, 1992.

Both parties filed proposed findings in the form of Proposed Recommended Orders which were read and considered. The Appendix states which were adopted, and which were rejected and why.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, a licensed pilot in the State of Florida. (Petitioner's Request for Admissions paragraph 1)

   
   

2. Respondent has been issued license number SP0000032. (Petitioner's Request for Admissions paragraph 2)

   
   

3. On or about August 29, 1990, Respondent was piloting the M/V Itanage outbound in Jacksonville, Florida. (Petitioner's Request for Admissions paragraph 4)

   
   

4. The Itanage is a 12,000 gross ton, Brazilian registered diesel powered container vessel. (Transcript p. 164)

   
   

5. From May 1988 to August 1990 the Itanage entered and exited the port of Jacksonville under pilotage fifteen times without navigational incident. (Transcript pp. 21, 22)

   
   

6. The same crew abroad the Itanage at the time of the allision was on the Itanage on its previous voyage of the Itanage. (Transcript p. 22)

   
   

7. Respondent has piloted the Itanage or similar vessels many times previously. (Transcript p. 355)

   
   

8. The Itanage was equipped with an overhead rudder angle indicator which is visible from the bridge wing. The rudder angle indicator exhibits the degree angle of the rudder and is color coded red for port and green for starboard so the pilot can glance up and see whether port or starboard rudder is applied. 2/ (Transcript pp. 166, 167)

   
   

9. Each bridge wing of the Itanage was equipped with an RPM indicator which shows whether the engine was going ahead or astern and the number of revolutions per minute. (Transcript p. 168)

   
   

10. The Itanage was equipped with an engine room telegraph which was operated by the second mate to communicate engine commands to the engine room. 3/

    
    

11. On August 29, 1990, the docking master, Captain Meers, undocked the vessel from Jacksonville Port Authority berths 3 and 4, turned, headed down the river on slow ahead, and disembarked around Coastal Petroleum. (Statement of Captain Steele; DPR Report, p. 2)

    
    

12. Respondent assumed responsibility for directing the ship at 1454 hours with the vessel parallel to and favoring the west bank of the river. (Statement of Captain Steele; DPR Report, p. 8; engine bell book, Transcript p. 175)

    
    

13. It was a clear day, the ride was at or near slack water, the weather was perfect. (Transcript pp. 92. 169, 170, 198)

    
    

14. Respondent gave commands to the second mate who remained positioned by the engineroom telegraph on the bridge. The second mate repeated the commands in English then repeated the commands to the helmsman in Portuguese.

    (Transcript pp. 195, 337); Statement of Second Mate)

15. The second mate spoke very little English and the helmsman did not speak any English. (Transcript p. 331)

    
    

16. At 1454 the Respondent ordered course 320 degrees and slow ahead, which was executed. At approximately 1456, Respondent ordered a course of 310 degrees and full speed ahead. (Transcript pp. 82, 83, 191, 192; DPR Report p. 8; engine bell book; Statements of the Second Mate, Helmsman, Master, and Chief Mate; Statement of Captain Steele)

    
    

17. Respondent's orders issued at 1456 were executed, and the engine speed was set at full ahead and the Helmsman steered 310 degrees. (Transcript p. 186; DPR Report p. 8; Statements of the Second Mate, Helmsman, Master, and Chief Mater; engine bell book; Statement of Captain Steele; Petitioner's Request for Admissions paragraph 8)

    
    

18. Respondent was in the wheelhouse and observed the master-gyro-compass. (Transcript p. 331; Statement of Captain Steele)

    
    

19. Because the view forward was blocked by the deck cargo, Respondent went to the starboard wing to observe Buoy 71. (Statement of Captain Steele)

    
    

20. At 1455 Respondent ordered "10 degrees port" from the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman)

    
    

21. The helmsman steered 10 degrees to port (left). (Transcript p. 192; Statements of the Second Mate, Helmsman)

    
    

22. After the order of "10 degrees port", Respondent remained on the starboard wing and had a radio conversation using a hand held marine radio with the master of the tug "Ann Moran" which took approximately 45 seconds about a ship they had handled the previous day. (Transcript pp. 338, 340, 247)

    
    

23. At 1456 as Itanage approached Buoy 71, at point "D" on Hearing Officer Exhibit 1, from the starboard bridge wing, Respondent ordered hard right (starboard) rudder and engine ahead full. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395)

    
    

24. After a few seconds, Captain Steele observed the bow of the vessel swinging to port (left) not to starboard (right). (Transcript p. 345) He immediately rushed to the pilot house, repeating his hard starboard (right) rudder order as he did so. (Transcript p. 345) The rudder angle indicator in the pilot house, however, indicated the actual position of the rudder was passing from port (left) 20 degrees to starboard when Captain Steele entered the pilot house. (Transcript p. 345) Captain Steele did not alter the prior order for ahead full.

    
    

25. Captain Steele reached the helm console and grabbed the helm. By that time, the helm was already in the hard starboard position.

    
    

26. The only explanation as to how the rudder got to 20 degrees port (left) was that when Captain Steele gave the command hard to starboard, the helmsman actually went hard to port (left), then the helmsman realized his error and was correcting it when Captain Steele entered the pilot house. No one

    suggests that any other command was given which would account for the port swing of the vessel. (Transcript p. 235)

    
    

27. Captain Steele again went to the wing to observe the response of the vessel. When it became apparent the vessel would not make the turn, Steele ordered full astern and ordered both anchors dropped. The vessel continued to make way in a sweeping curve alliding with the Shell Oil Terminal on the western edge of the Chaseville turn at approximately 1459 hours.

    
    

28. The allision was not caused by a mechanical failure, weather, or tide. (Transcript p. 69). The allision was set up by the helmsman's turning the ship to port (left) instead of starboard (right). However, the Respondent contributed to this error by failing to give the steering command, "Right, full rudder," as required by the Rules of Road. See 33 USC 232.

    
    

29. The Coast Guard conducted an investigation and prepared a report (Petitioner's Exhibit 1), the second page of which is a data sheet taken from the ship's bridge. This data sheet contains a diagram of the ship's turning circle to both port (left) and starboard (right) at half and full speeds. An overlay in proper scale was prepared and attached to Hearing Officer Exhibit 1 at the point where the turn was executed, Point D. The scaled extract of the Coast Guard report is attached to the back of Hearing Officer Exhibit 1.

    
    

30. The overlay reveals that the vessel could not make the turn at full speed from Point D because the vessel's course takes it almost exactly to the point of allision. If the vessel's course is offset slightly to the left due to the helmsman's mistake and the vessel's turning circle adjusted for less speed, as would have occurred if the vessel went from half speed to full speed when the order for the turn was given, the vessel's projected track would again place the vessel at the point of the allision.

    
    

31. The primary cause of the allision was Respondent's use of full speed in the turn. Although there was controversy about whether the vessel proceeded north the entire way at full speed or whether full speed was ordered as the turn was ordered approaching Buoy 71 (Point D on Hearing Officer Exhibit 1), there is no controversy that Captain Steele intended to execute the turn at full speed.

    
    

32. The distance from where Captain Steele assumed control of the ship to where it came to rest is approximately 1 and 1/8 nautical miles. According to the logs, the vessel covered this distance in between four and five minutes. In order to cover that distance in that time, the ship was at or close to its full speed, adjusted for a dirty hull, of 15 knots.

    
    

33. The advance and transfer of the ship was extended at full speed in such a way that the vessel could not make the turn in the sea room available. Referring again to the overlay, the vessel could have turned within the searoom available from Point D at half speed. The ship might have completed the turn at half speed from a point left of and forward of Point D, its track as the result of the helmsman's error, particularly with the reserve of thrust available to assist in turning after the emergency developed.

    
    

34. The Chaseville turn is a tight turn without a great amount of sea room, and requires care to be exercised by pilots. (Transcript pp. 354, 362, 170, 171).

    
    

35. The Respondent's failure to maintain proper speed caused the allision with the Shell Oil Terminal.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over this cause pursuant to Section 120.57(1), Florida Statutes.

    
    

37. Petitioner contends Respondent violated Florida Statutes 310.101(1)(k), by engaging in a practice which did not meet acceptable standards of safe piloting. Specifically, Petitioner contends Respondent was inattentive to duty; failed to prudently monitor the progress and behavior of the vessel; and operated the vessel at excessive speed.

    
    

38. Petitioner has the burden of proving its allegations with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). I find Petitioner has failed to do so.

    
    

39. As to the allegations the Respondent was inattentive, there was no substantial competent evidence to establish Captain Steele was inattentive. Talking on the radio is a normal activity for pilots.

    
    

40. A contributing factor in the incident was the helmsman applying full port rudder when Captain Steele ordered full starboard rudder. This was done by the helmsman contrary to the order given by Captain Steele. However, Captain Steele contributed to this error by giving orders in a manner contrary to that required by the Rules of the Road. See 33 USC 232.

    
    

41. The configuration of the containers on deck made it necessary for Captain Steele to pilot from the starboard wing. There was no reason for Captain Steele to anticipate that the helmsman would turn the wheel the wrong way. It was necessary for Captain Steele to remain on the wing to observe the swing of the vessel as the turn was being made. He could not detect helmsman's mistake until the vessel actually responded. All indications are that as soon as the error was observable to Captain Steele, he immediately did every thing within his power to rectify it. However, Captain Steele could not correct the course within the searoom available at the speed the vessel was traveling.

    
    

42. The speed used by Captain Steele was not necessary to overcome tides, winds, or traffic. The speed used by Captain Steele was excessive given the sea room available and given the turning characteristics of the vessel. The excessive speed was the proximate cause of the allision. At one-half speed, the vessel would have made the turn in the absence of the helmsman's error; and might have made the turn in spite of the helmsman's mistaken turn to port. Captain Steele was responsible for ordering the vessel's excessive speed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Board of Pilot commissioners issue a final order suspending Captain Henry A. Steele for three (3) months and levying a civil penalty of

$5,000 against him.

DONE and ENTERED this 3rd day of June, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1992.

ENDNOTES

1/ An allision is a collision between a moving object and a stationary object.

2/ Additionally, there is another rudder angle indicator to the right of the helmsman. (Transcript p. 166)

3/ The second mate rings up a command to the engine room by moving a handle on the telegraph to align an arrow to correspond with the engine speed as ordered. The engine room answers by aligning a second arrow to correspond with the ordered engine speed so that both arrows are aligned. (Transcript p. 169)

APPENDIX TO RECOMMENDED ORDER

Both parties filed proposed findings which were read and considered. The parties' findings were adopted, or rejected for the reason stated:

Petitioner's Findings:

Paragraphs 1-22 Adopted.

Paragraphs 23-25 Rejected in favor of Respondent's

restatement of these facts.

Paragraph 26 Rejected as speculative.

Paragraphs 27-32 Rejected in favor of Respondent's

restatement of these facts.

Paragraph 33 Irrelevant.

Paragraph 34 Adopted.

Paragraph 35 Adopted in part, rejected re: in- attention.

Paragraph 36 Subsumed in other findings.

Paragraph 37 Adopted.

Paragraphs 38,39 Adopted.

Paragraph 40 Rejected as Conclusion of Law.

Paragraphs 41-43 Subsumed in other findings. Respondent's Findings:

Paragraphs 1-3 Rejected in favor of Respondent's restatement of these facts.

Paragraph 4 Rejected in favor of Hearing Officer's

graphic presentation of these facts by overlay.

Paragraphs 5-6 Irrelevant.

Paragraph 7 Irrelevant.

Paragraphs 8-13 Rejected in favor of Respondent's restatement of these facts.

Paragraphs 14-19 Adopted.

Paragraph 20 Rejected as contrary to more credible evidence regarding speed of the vessel.

Paragraph 21 Irrelevant.

COPIES FURNISHED:

Anna Polk, Executive Director DPR-Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0792

Roberta L. Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert E. Warren, Esquire Taylor, Moseley & Joyner

501 West Bay Street Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

PILOT COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4860

)

HENRY A. STEELE, )

)

Respondent. )

)

ORDER ACCEPTING JURISDICTION FOR THE PURPOSE OF AMENDING RECOMMENDED ORDER

On November 10, 1992, the Board of Pilot Commissioners filed a Order of Remand in this case. The Order of Remand was accompanied by letter from the Board's attorney, Mr. Bayo, stating that a transcript of the Board's deliberations in the matter had been included to assist the hearing officer in understanding the Board's concerns.

The Board may remand a case for clarification of what is included in a Recommended Order; and the Board may remand a case to consider added matters not addressed in a Recommended Order which are necessary to the Board's decision.

The Board may not remand a case with instruction to the Hearing Officer to reconsider findings, included in the order and supported by the record, to which the Board takes exception.

Having reviewed the Order of Remand and the Recommended Order entered on June 3, 1992, the Hearing Officer sees the ambiguity caused by general statement made in the Conclusions of Law that the Petitioner failed to prove its allegations followed by a discussion of the specific allegations in which two of the allegations were found to have been proven; and in the Findings of Fact relating to the times and the import of the turning circle diagrams. Therefore, the Hearing Officer accepts jurisdiction for the purpose of clarifying the Recommended Order.

It is therefore ORDERED:

1. The Findings of Fact in the Recommended Order entered June 3, 1992 are amended as follows:

   
   

   1. (Paragraph 13) It was a clear day, the tide was at or near slack water, the weather was perfect. (Transcript pp. 92, 169, 170, 198)

      
      

   2. (Paragraph 20) When the Respondent ordered "10 degrees, port" at approximately 1456, he was on the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman.)

      
      

   3. (Paragraph 23) Shortly after the course correction "10 degrees, port" was given and while still standing on the starboard bridge wing, the Respondent

      ordered hard right (starboard) rudder and engine ahead full as the vessel reached Point "D" on Hearing Officer Exhibit 1. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395)

      
      

   4. (Add Following Footnote to Paragraph 23) Orders to the helm and the time an order was given were recorded in the deck log. Engine speed orders and the time they were given were recorded in the engine room log. Those log entries which can be correlated reflect that both logs were not kept using synchronized time pieces, and the entries in both logs do not state the time to the second. The times in the engine room log are considered more credible than the times maintained by the deck crew. After the ship got underway, the events occurred in rapid succession in the order in which they are reported in the Recommended Order.

      
      

   5. (Paragraph 30) The overlay reveals that the vessel could not make the turn at full speed from Point "D" because the vessel's course takes it almost exactly to the point of allision.

      
      

   6. (Paragraph 33) The information contained in the overlay and diagram of the St. John's River support the findings in Paragraph 32, above, that the Respondent had ordered full speed ahead shortly after starting up river, and the vessel had accelerated to or close to her full speed before commencement of starboard turn during which the allision occurred. The overlay and diagram support the finding that the allision was caused by excessive speed because the vessel could not have turned within the searoom available from Point "D" at full speed. Further, the vessel might have completed the turn from the position it was in as the result of the helmsman's error had it been traveling at half speed approaching the turn and used the added thrust available at full speed to assist in turning the vessel.

      
      

2. The Conclusions of Law in the Recommended Order entered June 3, 1992 are amended as follows:

   
   

   1. (Page 11, third unnumbered paragraph) Petitioner has the burden of proving its allegations with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Bowling v. Dept. of Insurance, 394 So.2d

      165 (Fla. 1st DCA 1981). The Petitioner failed to prove the first allegation that the Respondent was inattentive.

      
      

   2. (Page 12, fifth unnumbered paragraph) A contributing factor in the incident was the helmsman applying full port rudder when Captain Steele ordered full starboard rudder. This was done by the helmsman contrary to the order given by Captain Steele. However, Captain Steel contributed to this error by giving orders in a manner contrary to that required by the Rules of the Road. See USC 232. Captain Steele's giving the helm orders contrary to the manner required by the Rules of the Road contributed to the allision, and constitutes engaging in a practice which does not meet acceptable standards of safe piloting.

      
      

   3. (Page 12, second unnumbered paragraph) The speed used by Captain Steele was not necessary to overcome tides, winds, or traffic. The speed used by Captain Steele was excessive given the sea room available and given the turning characteristics of the vessel. The excessive speed was the proximate cause of the allision. Had Captain Steele proceeded up river at one-half speed, the vessel might have made the turn in spite of the helmsman's mistaken turn to

      port. The Petitioner proved its allegation that the Respondent operated the vessel at excessive speed.

3. The Recommendation in the Recommended Order is amended as follows: That the Board of Pilot Commissioners issue a final order suspending

Captain Henry A. Steele for four (4) months and levying a civil penalty of

$1,000.

DONE AND ORDERED this 30th day of November, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989.

COPIES FURNISHED:

Anna Polk, Executive Director DPR-Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0792

Roberta L. Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert E. Warren, Esquire

501 West Bay Street Jacksonville, FL 32202

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

=================================================================

AGENCY REMAND

=================================================================

Stephen F. Dean

OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL

November 10, 1992

Division of Administrative Hearings DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Re: Department of Professional Regulation, Board of Pilot Commissioners v. Henry A. Steele, Case No. 91-4860

Dear Mr. Dean:

Enclosed please find the Board's Order of Remand in the above captioned action. I have also taken the liberty of including a copy of the transcript of the Board's deliberations in this matter, to assist you in understanding the Board's concerns. If I can be of any further assistance, please let me know.

Sincerely, Edwin A. Bayo

Assistant Attorney General Counsel to the Board of Pilot Commissioners

cc: Board Office

Robert Warren, Esquire

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PILOT COMMISSIONERS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF

PILOT COMMISSIONERS

Petitioner,

vs. CASE NO. 91-4860

HENRY A. STEELE,

Respondent.

/

ORDER OF REMAND

THIS MATTER came before the Board of Pilot Commissioners on September 16, 1992, in West Palm Beach, Florida, for consideration of the Recommended Order entered in this cause by the Honorable Stephen F. Dean, Hearing Officer, dated June 3, 1992, as well as the exceptions thereto filed by the parties.

After a lengthy discussion, the Board voted to REMAND this matter to the hearing officer for review and clarification of his factual findings and conclusions of law. Specifically, the Board finds that the hearing officer's conclusions of law are ambiguous and inconsistent in that he concludes that Petitioner failed to meet the burden of proving a violation of Section 310.101(1)(k), which included, inter alia, excessive speed, but then goes on to conclude Respondent was operating at excessive speed.

To assist the hearing officer on REMAND the Board further concludes as follows:

1. The hearing officer's reliance on the ship's turning circle diagram was inappropriate in that said diagram does not reflect how the ship will turn in any particular circumstance or case.

   
   

2. The hearing officer's reliance on the "Rules of the Road" 33 U.S.C. Section 232 was inappropriate in that this was a foreign flag vessel wherein commands of port and starboard are more commonly used and understood.

As a final matter, the Board requests that the recommended penalty be clarified and would point out that pursuant to Section 310.101(2)(d) of the Florida Statute, the maximum fine that may be imposed is $1,000.00 for each count or separate offense.

DONE and ORDERED this 10th day of November, 1992, by the Florida Board of Pilot Commissioners.

GARY MADDOX CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to Robert E. Warren, Esquire, Counsel for Respondent, 501 W. Bay Street, Jacksonville, Florida 32202, this 10th day of November, 1992.

Docket for Case No: 91-004860

Orders for Case No: 91-004860