STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1972

)

HOWARD P. KRUEGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 8 December 1982 at Tampa, Florida.

APPEARANCES

For Petitioner: William B. Ewers, Esquire

Suite 204, 2170 Southeast 17 Street Fort Lauderdale, Florida 33316

For Respondent: C. Steven Yerrid, Esquire and

Boyd H. Wolf, Esquire Post Office Drawer 1288 Tampa, Florida 33601

By Administrative Complaint filed 7 June 1982, the Department of Professional Regulation, Board of Pilot Commissioners, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Howard P. Krueger as a licensed pilot in Florida. As grounds therefor it is alleged that on 28 February 1982 while piloting the M. V. SNOWDRIFT outbound from Tampa Respondent negligently increased the speed of the M. V. SNOWDRIFT as it passed the docked tank barge OCEAN 135, thereby creating a large wake and causing two mooring lines of the OCEAN 135 to break. It is alleged that the OCEAN 135 was unloading flammable fuels at the time of the incident.

At the hearing one witness was called by Petitioner; four witnesses, including Respondent, were called by Respondent; and five exhibits were offered into evidence. Ruling on the objection to the admission of Exhibit 3, the deposition of the captain of the OCEAN 135, was reserved at the hearing. This deposition was offered by Respondent and its admission was objected to by Petitioner. Respondent had not subpoenaed this witness, as Respondent expected Petitioner would call this witness. Testimony was received that this witness departed Tampa on the barge OCEAN 135 the morning of the hearing enroute to New Orleans, Louisiana. Without having subpoenaed this witness, this is insufficient to demonstrate the unavailability of this witness pursuant to Rule

1.330(a)(3), Florida Rules of Civil Procedure. The objection to the admissibility of Exhibit 3 is now sustained.

Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the conclusions reached.

FINDINGS OF FACT

1. Howard P. Krueger is a licensed deputy pilot for the Port of Tampa and was so licensed at all times here relevant.

   
   

2. Shortly after 8:00 p.m. on 28 February 1982 the M. V. SNOWDRIFT piloted by Respondent Krueger left her berth at the northeast end of Garrison Channel near Davis Island in upper Tampa Bay, and, with the assistance of two tugs, moved to the center of the turning basin headed south to exit Tampa through Sparkman Channel. When in this position, the two tugs were let go and the M. V. SNOWDRIFT started down Sparkman Channel at slow speed.

   
   

3. At 6:10 p.m. on 28 February 1982 the tank barge OCEAN 135 commenced discharging gasoline to Cities Service Company at the Tampa Electric Company dock, which is located at the northeast side of Sparkman Channel. The pumping from the OCEAN 135 was in progress as the M. V. SNOWDRIFT passed the moored OCEAN 135.

   
   

4. The only evidence presented by the Petitioner was Exhibit 1, a copy of the log of the tank barge OCEAN 135, for February 28, 1982. All entries contained therein are as follows:

   CITCO Tampa, Florida Voyage 505 1650 Arrival

   1710 Secure

   1730 Gauged

   1745 Hose on regular 1800 Hose on no lead 1810 Start regular 1810 Start no lead

   
   

   At app 2030 while the OCEAN 135

   was moored to the dock at T.E.C.O., Hookers Point discharging gaso-

   line to Cities Service Co. the vessel "Snowdrift" got underway on the opposite side of the turning basin - when she got on a sourtherly heading in mid-channel she let go her tugs

   & struck out for sea at an extreme engine order & when she was abeam of the OCEAN 135 she was throwing a wake & did part two of my mooring lines &forced me to shut down.

   /s/ Stevens

   
   

5. No time was entered in the log when the pumping was shut down as the log entry states; nor was the log entered when pumping recommenced, if that occurred on February 28.

6. The captain of the tug, Evon St. Phillip, who assisted the M. V. SNOWDRIFT away from the dock and positioned her in the turning basin on February 28, 1982, testified that when he let go he proceeded south through Sparkman Channel alongside the M.V. SNOWDRIFT, that the speed of the SNOWDRIFT as they passed the OCEAN 135 was between one and 1.5 knots, and that he saw no wake of the M. V. SNOWDRIFT hit the OCEAN 135.

   
   

7. Captain Krueger testified that he saw the OCEAN 135, knew she was discharging dangerous cargo (by the red lights shown) and that when the M.V. SNOWDRIFT passed the OCEAN 135 she was making between 1.5 and 2.0 knots.

   
   

8. Because the log of the OCEAN 135 is incomplete in not logging the time when the Dumping operations were shut down, because I do not believe the "extreme engine order" logged could be heard (or observed by Stevens) the 250 to

   300 yards he was distant from the M. V. SNOWDRIFT when the SNOWDRIFT's engines were ordered ahead, and because ships do not accelerate rapidly from a stopped position, the live testimony, that the M. V. SNOWDRIFT was proceeding at 1.5 to

   2.0 knots when she passed the OCEAN 135, is deemed more credible than the inference that could be drawn from Exhibit 1, that the M. V. SNOWDRIFT was making excess speed as she passed the OCEAN 135.

   
   

9. The speed limit in Sparkman Channel as established by the code of she City of Tampa is 4.0 knots.

   
   

10. The M. V. SNOWDRIFT was light when she departed Tampa on 28 February 1982 with a draft of about 12 feet forward and 22.5 feet aft. This vessel is

    570 feet in length and is over 11,000 gross registered tons.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Section 310.101, Florida Statutes (1981), provides disciplinary action may be taken against a licensed state pilot or a certificated deputy pilot upon a finding he was guilty of, inter alia,

    
    

    (5) Negligence, incompetence or misconduct in the performance of piloting duties.

    
    

13. The allegations of negligence here involved are predicated solely upon the charge that the M. V. SNOWDRIFT was proceeding at excessive speed on 28 February 1982 when she passed the moored tank barge OCEAN 135 in Sparkman Channel.

    
    

14. An administrative tribunal measures proof presented to it by a preponderance of the evidence standard, Florida Department of HRS v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974), and the burden of proof is on the parties asserting the affirmative, Balino v. Department of HRS, 348 So.2d 347 (Fla. 1st DCA 1977)

    
    

15. Here the burden is on the Petitioner to establish, by a preponderance of the evidence, that Respondent was proceeding at excessive speed while piloting the M. V. SNOWDRIFT down Sparkman Channel on 28 February 1982, and this excessive speed generated a wake that caused the OCEAN 135 to break two mooring lines. This burden is not satisfied by proof creating an equipoise, but it does

    not require proof beyond a reasonable doubt, Department of HRS v. Career Service Commission, supra. Even if the evidence is considered in the light most favorable to Petitioner, at best an equipoise would be created. For the reasons expressed in Findings of Fact 8 above, Petitioner has here failed to reach the required plateau of proof or a reasonable facsimile thereof.

    
    

16. From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that Respondent is guilty of negligence in the piloting of the M. V. SNOWDRIFT on 28 February 1982 by making excess speed while headed south in Sparkman Channel.

It is RECOMMENDED that the Board of Pilot Commissioners enter a Final Order finding Howard P. Krueger not negligent on 28 February 1982 while piloting the

M. V. SNOWDRIFT down Sparkman Channel and dismiss all charges alleging such negligence.

ENTERED this 6th day of January, 1983, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1983.

COPIES FURNISHED:

W. B. Ewers, Esquire

2170 S.E. 17th Street, Suite 204 Fort Lauderdale, Florida 33316

C. Steven Yerrid, Esquire HOLLAND & KNIGHT

Post Office Drawer 1288 Tampa, Florida 33601

Jane Raker, Executive Director Board of Pilot Commissioners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001972

Orders for Case No: 82-001972