STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PILOT ) COMMISSIONERS, )

)

Petitioner, )

)

v. ) CASE NO. 85-2978

)

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 August 28, 1986, in Tampa, Florida. Through apparent inadvertence, the transcript of the hearing was not filed with the Division of Administrative Hearings until December 15, 1986. The issue for determination in this proceeding is whether the respondent's State pilot license should be disciplined on the ground that he negligently caused a vessel to run aground.

APPEARANCES

For Petitioner: David C. Banker, Esquire

David Hanlon, Esquire Shackelford, Farrior,

Stallings and Evans, P.A. Post Office Box 3324

Tampa, Florida 33601

For Respondent: Margaret D. Mathews, Esquire

Staff, Hardy and Yerrid, P.A. Suite 2600

One Tampa City Center Tampa, Florida 33602

INTRODUCTION

By an Administrative Complaint filed on August 7, 1985, petitioner seeks to take disciplinary action against the respondent on the ground that he negligently piloted the M/V

SCANDANAVIAN STAR on December 2, 1984, causing it to ground.

More specifically, it is charged that respondent was negligent in the following practices:

1. Failure to properly ascertain the vessel's position while transiting the Tampa Bay Channel;

   
   

2. Prematurely ordering a course change;

   
   

3. Failure to adequately and efficiently use radar information available to him;

   
   

4. Failure to supplement available radar information with other information available that a prudent mariner would use in similar circumstances of reduced visibility;

   
   

5. Failure to rely on the ship's crew for information or assistance;

   
   

6. Failure to calculate speed and distance to indicate approximate time to turn into Cut "A";

   
   

7. Failure to shift range scales on radar.

In support of the charges, petitioner presented the testimony of John C. Hanson, accepted as an expert in marine investigation; Lawrence E. Worters, accepted as an expert in the use of radar; and Dean Keith Bruch, accepted as an expert in piloting and the use of radar. Received into evidence were petitioner's Exhibits A through M, which included the deposition testimony of Robert P. Rodenboog and William G. Phillips, the Captain and the Staff Captain of the M/V SCANDANAVIAN STAR.

The respondent testified in his own behalf, and also presented the testimony of James Gallagher, a Tampa Bay pilot; Robert Park, accepted as an expert in piloting in Tampa Bay; and Clifford E. Clayton, accepted as an expert in radar and piloting.

Subsequent to the hearing, each party submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed factual findings are not incorporated in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

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

1. Captain Thomas A. Baggett, the respondent, has been a Tampa Bay pilot since 1969. At all times relevant to this proceeding, respondent has held a State pilot's license and is subject to the disciplinary jurisdiction of the Board of Pilot Commissioners.

   
   

2. The M/V SCANDANAVIAN STAR is a Bahamian registered cruise ship which is 465 feet in length and has a beam of 72 feet. Because of its twin screws, twin rudders, twin bow thrusters and controllable pitch propellers, it is one of the most maneuverable ships on Tampa Bay. Its machinery and equipment functioned properly on December 2, 1984.

   
   

3. Prior to making the outbound transit on the morning of December 2, 1984, Captain Baggett communicated with a tug and a dredge down the bay to inquire about the visibility because there was a hint of fog at the dock. It was reported to him that the tug and the dredge had three to four miles visibility.

   
   

4. As respondent was piloting the M/V SCANDANAVIAN STAR toward C Cut, a heavy curtain of fog suddenly appeared near the vicinity of Buoy 17. The speed of the vessel was reduced to approximately ten knots, and respondent determined to proceed to Gadsden Cut. He was concerned that if he attempted to stop and anchor in the 500 foot wide channel, the stern of the ship would swing around, causing the vessel to run aground.

   
   

5. As the vessel proceeded down C Cut, respondent was observing two radars - - a smaller radar set on a three-mile range and a larger radar set on a mile and a half range. On the bridge with him were Captain Rodenboog, Staff Captain Phillips, the Third Officer and the Helmsman.

   
   

6. After respondent visually cited Buoy 13, located about nine-tenths of a nautical mile from Buoy 17, he ordered the vessel to begin making its turn. Several targets in addition to buoys appeared on the radar screen. Upon spotting what he believed to be Buoy 11 on the radar screen, respondent attempted to complete his turn utilizing that target as his turning point. Instead of completing the turn, the vessel ran aground. The only change in speed of the vessel between Buoy 13 and 11 occurred immediately before the grounding when Captain Rodenboog increased the speed to 11 knots to attempt to gain better steerage. After the fog lifted, respondent realized that what he thought was Buoy

   11 was instead an anchored shrimp boat or fishing boat. Buoy 11 was discovered to be about 100 feet from the vessel's port bow.

   There is a distance of about three-tenths of a nautical mile between Buoys 13 and 11.

   
   

7. There was no damage to the vessel M/V SCANDANAVIAN STAR as a result of the grounding. After the tugs were alongside, the vessel was refloated in a short period of time and continued on its voyage. Respondent brought the vessel back into port on the evening of December 2, 1984, without difficulty.

   
   

8. There was some confusion as to the exact location of the grounding and the proper numbering of the buoys visually sited prior to and after the grounding. This resulted from the fact that the vessel's charts had not been updated with Local Notice to Mariners 20-84, which renumbered certain buoys, including Buoys Numbers 13 and 11. While this confusion contributed to discrepancies in reports and descriptions of the casualty during the investigation, it is specifically found that the actual numbering of the buoys had no causal effect in the grounding episode.

   
   

9. When visibility is impaired by fog, there are various means for a pilot to properly determine his location. One, of course, is to stop the vessel and anchor until the fog lifts. It was not unreasonable for the respondent to discard this alternative due to the configuration of the channel and the length of the M/V SCANDANAVIAN STAR. Another means of determining location is "dead reckoning", or timing. This method involves several mathematical calculations of time, speed and distance, and is the most accurate when the speed of the vessel remains constant. Given the fact that there was a short period of time between the onset of heavy fog and the turns required, as well as the fact that there had been an adjustment in the speed of the vessel, it was not unreasonable for respondent not to utilize dead reckoning in determining the vessel's exact location before turning on what he believed to be Buoy 11.

   
   

10. A functioning, properly adjusted, and appropriately interpreted radar picture provides a means of identifying a channel and determining a vessel's location with respect thereto. Proper utilization of a radar allows a turn from one channel to another to be accomplished with safety despite the presence of heavy fog. A reasonable and prudent pilot should look ahead and anticipate when using radar. Even if other contacts, such as pleasure boats or fishing boats, appear on the radar screen, a prudent pilot should be able to determine the pattern of buoys denoting the channel by taking into account other known landmarks in the vicinity. An alteration in course, such as a turn, should never be made on the basis of a single contact or scanty information. If the picture on the radar screen does not provide sufficient information, the range can be adjusted to provide

    further information. When operating with a single radar, some pilots consider it bad practice to shift the radar range or scale during a turn because of the possibility of losing the picture completely or having the previous range's targets continue to appear as "ghosts" on the new scope.

    
    

11. As mentioned above, the M/V SCANDANAVIAN STAR had two operating radars at the time respondent's visibility was impaired by fog. One of the radars was set at a three-mile range and the other was set at a range of a mile and a half. It was therefore not necessary to shift the range of either radar to receive the information required to properly make the turn from C Cut to A Cut. Indeed, respondent admits that there were many contacts on the radar screen, that he could see the buoys into Gadsden and Big Bend Terminal and that he took them into account when he made his decision to turn on the target which he believed to be Buoy 11, but which in fact turned out to be a fishing boat. A forty- foot long, anchored fishing boat can resemble a buoy on a radar screen.

    
    

12. Respondent simply mistook the fishing boat for Buoy 11 on the radar screen. This caused him to turn too soon, thus grounding the vessel. As a pilot, it was his responsibility to utilize his knowledge of known landmarks and determine which contacts on the radar screen denoted the channel and which contacts did not. If there were any doubt, respondent should have reduced the speed of the vessel and attempted to place the various contacts on the radar screen into context prior to making an alteration in course.

    CONCLUSIONS OF LAW

    
    

13. The Board of Pilot Commissioners has the authority to discipline a licensed State pilot found guilty of negligence in the performance of piloting duties. Section 310.101(5), Florida Statutes. Likewise, any act of negligence or any failure to exercise that care which a reasonable and prudent pilot would exercise under the same or similar circumstances may result in disciplinary action. Rule 21 SS-8.07(1), Florida Administrative Code. As construed by the Board of Pilot Commissioners, negligence is

    
    

    "the omission to do something which a reasonable pilot, guided by those ordinary considerations which ordinarily regulate piloting of vessels would do, or the doing of something which a reasonable and prudent pilot would not do."

    
    

    DPR v. John E. Lerro, 3 FALR 1120A (1981).

14. Contrary to the specific charges in the Administrative Complaint, the evidence in this proceeding does not demonstrate that respondent negligently failed to rely upon his crew for information or assistance, negligently failed to shift range scales on the radar or negligently failed to perform time, speed or distance calculations. What the evidence does demonstrate is that respondent did not properly utilize the available radar equipment in combination with his own knowledge of landmarks in the area to pick up the pattern of buoys denoting the channel. Prior to negotiating a turn in circumstances of low or no visibility, a prudent pilot should take all navigational aids, radar contacts and known landmarks into consideration to determine the boundaries of the channel and his vessel's location with respect thereto. Had respondent reduced the speed of his vessel between Buoys 13 and 11, he would have gained more time to determine which of the radar contacts was the proper target for the ship's turning point. At either the one and a half or the three mile range set for the two operating radars, the screens depicted the intersection of Cut C with Cut A, and all of Cut A. The fact that a forty-foot fishing boat may be similar to or even indistinguishable from a buoy on a radar screen does not negate a reasonable and prudent pilot's duty and responsibility to ascertain which of two similar contacts is the proper target for turning. A reasonable and prudent pilot should be able to locate a channel by considering many targets and their relationship to each other. This, respondent failed to do. Such failure to adequately utilize the radar information available to him, resulting in a premature course change and a grounding, constitutes an omission to do something which a reasonable pilot would do, and is negligence for which disciplinary action is warranted.

15. Fortunately, the grounding for which respondent was responsible on December 2, 1984, was not a serious casualty. No damage was done to the M/V SCANDANAVIAN STAR or its passengers or crew. The undersigned has taken official notice of other disciplinary actions against respondent's license as a State Pilot.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of negligence in piloting the M/V SCANDANAVIAN STAR on the morning of December 2, 1984, and that an administrative fine of

$500.00 be imposed.

Respectfully submitted and entered this 21st day of Januray, 1987, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21 day of January, 1987.

APPENDIX

The proposed findings of fact submitted by the petitioner and the respondent have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below.

Petitioner

1. Second sentence partially rejected, as the evidence demonstrates that speed was reduced at the initial onset of fog.

2. Last sentence partially rejected insofar as it infers that only a single contact appeared on the radar screen.

17. Rejected as unsupported by competent, substantial evidence.

19. Rejected as irrelevant and immaterial. See Findings of Fact Number 8 in Recommended Order.

Respondent

21. Partially rejected. Insufficient evidence to demonstrate that the shrimp boat was anchored "in the line of the buoys."

39. Rejected as contrary to the respondent's testimony that he visually spotted Buoy 13.

51-53. Accepted as correct recitation of testimony, but irrelevant to ultimate issue in dispute.

64. Rejected as irrelevant to the facts established.

66 & 67. Rejected as contrary to the greater weight of the evidence.

81. Rejected. The issue is not whether the vessel should have turned, but whether the location of the turning was appropriate.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF PILOT COMMISSIONERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 85-2978

THOMAS A. BAGGETT,

Respondent.

/

FINAL ORDER OF THE BOARD OF PILOT COMMISSIONERS

This matter came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9), Florida Statutes, on March 17, 1987, May 5, 1987, June 20, 1987, September 1, 1987 and November 10, 1987, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner, Department of Professional Regulation, was represented by H. Reynolds Sampson, Esquire. Respondent was present at all but the November 10, 1987 meeting and was represented by Margaret D. Mathews, Esquire. Respondent filed Exceptions to the Recommended Order and Supplemental Exceptions to the Recommended Order. Petitioner filed a Response to the Respondent's Exceptions.

Upon review of the Recommended Order, the arguments, and the complete record in this case, the Board makes the following determinations, findings, and conclusions.

EXCEPTIONS

The exceptions, numbered l-4, are rejected.

FINDINGS OF FACT

The findings of fact in paragraphs one (1) through eleven

(11) of the Recommended Order are adopted. The findings of fact in the first three sentences of paragraph twelve (12) of the: Recommended Order are adopted. The finding of fact in the final sentence of paragraph twelve (12) is rejected because the record reflects that Captain Baggett was not at the conn at the time. Rather, Captain Rodenboog was at the cone. Captain Rodenboog increased the speed; therefore, Captain Rodenboog overruled the Respondent regarding the speed of the vessel.

CONCLUSIONS OF LAW

The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 460, Florida Statutes.

The conclusions of law of the Recommended Order are adopted with the exception of the conclusion that: "Such failure to adequately utilize the radar information available to him, resulting in a premature course change and a grounding, constitutes an omission to do something which a reasonable pilot would do, and is negligence for which disciplinary action is warranted."

DISPOSITION

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be rejected and no further action be taken in the matter.

THEREFORE IT IS SO ORDERED.

THIS ORDER TAKES EFFECT UPON FILING with the Clerk of the agency.

THE PARTIES ARE NOTIFIED, pursuant to Section 120.59, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

ORDERED this 26th day of January, 1988.

BOARD OF PILOT COMMISSIONERS

William Henry Young Chairperson

CERTIFICATE OF SERVICE

I CERTIFY that a copy of this Final Order was provided by Certified Mail to Thomas A. Baggett, 14107 Cypress Circle, Tampa, Florida 33624; Margaret D. Mathews, Esquire, Post Office Box 1288, Tampa, Florida 33601; and by hand delivery to H. Reynolds Sampson, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, this 4th day of February, 1988.

Patricia B. Guildford Executive Director

Board of Pilot Commissioners

cc: Diane D. Tremor Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 85-002978

Orders for Case No: 85-002978