STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-6170

)

WARWICK G. CAHILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 7, 1994, in Tampa, Florida.

APPEARANCES

For Petitioner: Anthony Cammarata, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: David Pope, Esquire

First Union Center

100 South Ashley Drive, Suite 1700 Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether the Respondent failed to meet acceptable standards of safe pilotage as alleged in the Administrative Complaint and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

In October 1985, the Petitioner filed an Administrative Complaint alleging that the grounding of the M/V Grecian Star, piloted by the Respondent, was due to improper performance of the Respondent's duties. Specifically, it is alleged that the Respondent gave a hand signal which was interpreted by the ship's helmsman as a directional command. The helmsman altered the course of the ship. As the Respondent and the ship's master reviewed navigational charts, the course change went unnoticed until insufficient time remained for course correction and the ship ran aground.

The Respondent requested formal hearing in the matter. The case was referred to the Division of Administrative Hearings which scheduled and noticed the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and offered into evidence exhibits numbered 1-12. Respondent presented the testimony of one witness, testified on his own behalf, and offered into evidence exhibits numbered 1-17. All exhibits were admitted into evidence.

A transcript of the hearing was filed on April 26, 1994. Proposed recommended orders were due to be filed by not later than May 6, 1994. Rule 60Q-2.031, Florida Administrative Code. Filed means received by the Office of the Clerk of the Division of Administrative Hearings. Rule 60Q-2.003, Florida Administrative Code. The Petitioner's proposed recommended order was filed May 6, 1994. The proposed findings of fact contained therein are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

The Respondent's proposed recommended order was filed May 9, 1994. Although the proposed order has been reviewed by the undersigned, the proposed recommended order is rejected as untimely filed. No rulings on proposed findings are set forth herein.

FINDINGS OF FACT

1. Warwick G. Cahill (Respondent) is, and at all times material hereto has been, licensed as a harbor pilot by the State of Florida, license number SP 0000111.

   
   

2. The Department of Business and Professional Regulation, Board of Pilot Commissioners, is the state agency responsible for prosecution of alleged violations of disciplinary rules applicable to harbor pilots.

   
   

3. On July 28, 1993, the M/V Grecian Star (GS) left the dock at the CF Industries Terminal in the Port of Tampa, Florida. The GS is a Cypress flag vessel approximately 656 feet long, with and 81 foot beam and a draft of 32 feet

   11 inches. The equipment and machinery on the GS were in good working condition.

   
   

4. The Respondent piloted the outbound GS from the Port of Tampa, under the authority of his Florida State Pilot's license. He had boarded the ship at approximately 1:50 PM.

   
   

5. Although the ship's Master is ultimately responsible for the safety of the ship, the Master will defer to the local pilot's knowledge and directional skills in navigating local waters.

   
   

6. The ship departed from the dock approximately ten minutes after the Respondent boarded. The weather was good, with visibility of approximately eight miles. The sea was slick calm. Winds were from the northwest at not more than four knots. The port tide was at ebb. The current was variable but less than one-half knot.

   
   

7. As the GS transited Tampa Bay, the Respondent made several slight course corrections due in part to drift, but the ship's travel was uneventful as it entered Egmont Channel.

   
   

8. In the area of Egmont Channel buoys 11 and 12, the pilot boat arriving to permit the Respondent to disembark from the GS contacted the GS bridge by radio and requested that the placement of the port side pilot ladder be raised.

9. The Respondent directed the third mate of the ship to attend to the placement of the pilot ladder. The third mate left the bridge.

   
   

10. On of the responsibilities of the third mate is to monitor orders given by the pilot to the helm and to ascertain whether the orders have been followed.

    
    

11. At all times during the transit of the GS, the Respondent gave verbal orders regarding the pilotage of the ship. The Respondent expected that such orders would be repeated to him. Orders which were not repeated would be delivered again.

    
    

12. At no time during the GS transit of Tampa Bay into Egmont Channel did the Respondent give orders to the helmsman by hand motion or by any other gesture. All orders were delivered verbally to the helmsman by the Respondent and were repeated by the helmsman.

    
    

13. At the time the ship was in the area of Egmont Channel buoys 11 and 12, the Respondent stood in front of the helmsman. At some point while still in the position, the helmsman and the Respondent briefly looked at each other. At or about the same time as the two looked at each other, the Respondent moved his left hand or arm. The evidence is clear that the Respondent gave no verbal order to alter the ships course at that point.

    
    

14. The helmsman interpreted the "look" and the movement of the Respondent's left arm to indicate an order to turn the ship ten degrees to port.

    
    

15. There is no evidence as to how the helmsman determined from a "look" and a gesture that the ship's course was to be altered by ten degrees.

    
    

16. The helmsman testified that he verbally stated "port ten" prior to altering the ship's course. There is no evidence that any person on the bridge heard the helmsman repeat the supposed command. There is no evidence that, at any other time during the Respondent's pilotage of the GS, there was any difficulty in hearing any orders given by the pilot or repeated by the helmsman. The greater weight of the evidence fails to establish that the supposed command was verbalized by the helmsman.

    
    

17. After standing in front of the helmsman, the Respondent walked to the chart table on which a chart of lower Tampa Bay was displayed and began to respond to questions of the GS Master. The chart table is located aft and on the starboard bulkhead of the wheelhouse.

    
    

18. The conversation between the Respondent and the Master lasted between one and two minutes and consisted of a discussion related to the vessel's position, the disembarkation of the pilot, reported traffic, water obstructions, range markers and the monitoring of radio channels.

    
    

19. At the time the Respondent walked to the chart table, the ship was on course in the center of the channel. No command was given to alter the course. No command was repeated by the helmsman. Based on the lack of command or response, and on the fact that the ship was on course and centered in the channel, it was reasonable for the Respondent and the Master to conduct their discussion.

20. Based on the estimated speed of the ship at the time of the grounding, the ship moved no more than 1600 to 2000 feet during the conversation between the Respondent and the Master. Based on the beam of the boat and the width of the channel, the ship could move 300 feet to either side without incident.

    
    

21. Upon completion of the discussion, the Respondent and the Master simultaneously noticed that the ship's course was incorrect and that buoys 9 and

    10 were positioned off the starboard bow rather than dead ahead.

    
    

22. The Respondent immediately stated "hard starboard rudder," directing the helmsman to take corrective action, but the ship ran aground on the south bank of Egmont Channel approximately two ship lengths past buoys 11 and 12.

    
    

23. The accident caused no injury to person or cargo. No pollution resulted from the grounding. The next day, the GS was re-floated.

    
    

24. Although the ship grounded while the Respondent was responsible for the navigation of the ship, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties.

CONCLUSIONS OF LAW

25 The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

1. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has not been met.

   
   

2. The Administrative Complaint filed in this cases alleges that the Respondent violated Section 310.101(1)(k), Florida Statutes, which provides as follows:

   
   

   1. Any act of misconduct, inattention to duty, negligence, or incompetence; and willful violation of any law or rule, including the rules of the road, applicable to a licensed state pilot or certified deputy pilot; or any failure to exercise that care which a reasonable and prudent licensed state pilot or certified deputy pilot would exercise under the same or similar circumstances may result in disciplinary action. Examples of acts by a licensed state pilot or certified deputy pilot which constitute grounds for disciplinary action include, but are not limited to:

      (k) Engaging in any practice which does

      not meet acceptable standards of safe piloting.

3. The Administrative Complaint filed in this cases alleges that the Respondent violated Rule 21SS-8.007(1)(k), Florida Administrative Code. The rule, subsequently renumbered as 61G14-17.003(1)(k), provides as follows:

   
   

   Any act of misconduct, inattention to duty, negligence, or incompetence; and willful violation of any law or rule, including the Rules of the Road, applicable to a licensed state pilot or certified deputy pilot; or any failure to exercise that care which a reasonable and prudent pilot or deputy pilot would exercise under the same or similar circumstances may result in disciplinary action. When an individual holding a state license or certificate as a pilot or deputy respectively, is engaged in directing the movements of a vessel subject to state pilotage, whether movement in or out of

   port, to or from a dock or berth, or any other movements undertaken in the furtherance of his piloting duties, such a individual is operating under the authority of his state license or certificate and is accountable to the Board for his actions.

   Examples of acts which may constitute a violation may include, but are not limited to:

   (k) Any disregard of safe practice, whether intentional or unintentional, which does not meet acceptable standards of safe pilotage.

   
   

4. The Petitioner asserts that the Respondent has violated the aforementioned statute and rule by "failing to notice the swing of the vessel's bow until the vessel was in extremis and failing to properly utilize information available to him."

   
   

5. The evidence fails to establish that the Respondent failed "to properly utilize information available to him."

   
   

6. Clearly, the evidence establishes that the Respondent failed to notice the swing of the GS's bow until the vessel was in extremis. However, the ship's course was changed by an unwarranted and unreasonable decision by the ship's helmsman to alter the direction of the ship.

   
   

7. The evidence fails to clearly and convincingly establish that the grounding of the GS was due to an act of misconduct, inattention to duty, negligence, or incompetence on the Respondent's part or the failure to exercise that care which a reasonable and prudent pilot would exercise under the same or similar circumstances. Further, the evidence fails to clearly and convincingly establish that the Respondent was engaged in any practice which does not meet acceptable standards of safe piloting.

8. Witnesses for the Petitioner opined that the Respondent's "inattention" permitted the ship to ground. The testimony would appear to suggest that the Respondent should be held strictly liable for any avoidable incident which may occur during his pilotage and therefore a pilot must continuously monitor a ship's course to guard against the unreasonable and unanticipated actions of a helmsman.

   
   

9. In this case, the evidence fails to establish that the Respondent was "inattentive." The ship was on proper course and was stable in it's movement. The weather was clear, seas were calm and no channel traffic was in the vicinity. No command was given to change course. With the ship steady in its course, and at the request of the Master, the Respondent engaged in a brief informational discussion with the Master.

   
   

10. Absent command, knowledge, consent or approval of the Respondent, the helmsman altered the ship's course. The action of the helmsman could not have been reasonably anticipated by the Respondent. The Respondent took appropriate action as soon as the brief discussion with the Master had concluded.

    
    

11. The testimony suggesting that the Respondent was negligent in failing to continuously monitor the ship's course is not credible given the circumstances of this case and is rejected.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint filed against Warwick G. Cahill in this case.

DONE and RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6170

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

16. Rejected, not supported by the greater weight of credible and persuasive evidence. The evidence fails to establish that the Respondent intentionally "made" a gesture with his hand.

18. Rejected, not supported by the greater weight of credible and persuasive evidence.

22. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that the conversation was initiated by the Master.

28-31. Rejected, subordinate.

1. Rejected, irrelevant. There is no credible evidence that any crew member accept the "unusual movement of the vessel without question, though it is actually a result of pilot error."

2. Rejected, irrelevant. There is no credible evidence that any crew member had only a rudimentary understanding of the English language or that such contributed to this incident.

37-38. Rejected, contrary to the weight of the evidence which fails to establish that the Respondent's "inattention" permitted the ship to ground.

Respondent

The Respondent's proposed findings of fact are rejected as not timely filed.

COPIES FURNISHED:

Susan J. Foster, Executive Director Board of Pilot Commissioners Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Acting General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles F. Tunnicliff, Esquire Dept. of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

David Pope, Esquire Suite 1700

First Union Center

100 South Ashley Drive Tampa, Florida 33602

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 ten days in which to submit written exceptions. Some agencies allow a larger period within 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.

================================================================= AGENCY ORDER ON REMAND

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

STATE OF FLORIDA

BOARD OF PILOT COMMISSIONERS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Petitioner,

vs. BPC CASE NO. 93-13662

DOAH CASE NO. 93-6170

WARWICK G. CAHILL

Respondent.

/

ORDER ON REMAND

Pursuant to the May 25, 1995 mandate of the District Court of Appeal of Florida, First District, in the case of Department of Business and Professional Regulation vs. Warwick G. Cahill, Case No. 94-2701, it is

ORDERED that the Final Order filed herein on July 25, 1994 is hereby vacated and it is further,

ORDERED that the Administrative Complaint filed against Warwick G. Cahill on October 5, 1993 be and the same is hereby dismissed.

This order takes effect upon filing with the Clerk of the Agency.

DONE and ORDERED this 16, day of June, 1995.

Board of Pilot Commissioners

John T. "Jack" Zapf Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order on Remand has been sent by U.S. Mail to Captain Warwick G. Cahill c/o David F. Pope Attorney at Law, Suite 1700, First Union Center, 100 South Ashley Drive, Tampa, Florida 33602, and to Charles F. Tunnicliff, Attorney at Law, Department of Business and professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, this 12th day of July, 1995.

Sue Foster, Executive Director Board of Pilot Commissioners

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

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

STATE OF FLORIDA

BOARD OF PILOT COMMISSIONERS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Petitioner,

vs. BPC CASE NO. 93-13662

DOAH CASE NO. 93-6170

WARWICK G. CAHILL

Respondent.

/

FINAL ORDER

Respondent, Warwick G. Cahill is licensed as a harbor pilot by the State of Florida under license number SP 0000111. Petitioner filed an Administrative Complaint seeking revocation or suspension of Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, restriction: Respondent's practice and/or any other relief that the Board deems appropriate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on May 24, 1994, was forwarded to the Board pursuant to Section 120.51(1), F.S. (copy attached to and made a part or this Order.)

The Board met on June 22, 1994 at Wakulla Springs Conference Center, Wakulla County, Florida, to take final agency action. Petitioner was represented by Charles F. Tunnicliff, Attorney at Law. Respondent was represented by David Pope, Attorney at Law. The Board reviewed the entire record in this case.

FINDINGS OF FACT

The Board adopts, as its findings of fact, those parts of the hearing officer's recommended findings of fact which are set forth in paragraphs 1 through 23 of the Recommended Order. Additionally, the Board adopts, as its finding, that part of paragraph 24 of the hearing officer's binding of fact which reads, the ship grounded while the Respondent was responsible for the navigation of the ship.

The Board determined that the part of said paragraph 24 which reads, the weight of the evidence fails to establish that the grounding was due to any error or omission in the Respondent's performance of his duties constitutes a conclusion of law with which the Board disagrees and that portion is, therefore, rejected.

CONCLUSIONS OF LAW

The Board adopts, as part of its Conclusions of Law, the following paragraphs and parts of paragraphs from the hearing officer's recommended conclusions of law:

paragraphs 25, 27, 28, 29 and 31. The first sentence of paragraph 26. The first sentence of paragraph 35.

The remainder of the hearing officer's recommended conclusions of law are rejected.

Additionally, the Board makes the following conclusion of law:

The facts, as found, support the conclusion that Respondent, by not timely observing the helmsman's erroneous change of course, engaged in a practice which does not meet acceptable standards of safe piloting.

Based upon the foregoing, Respondent is guilty of violating the provisions of Section 310.101(1)(k), Florida Statutes and Rule 21SS-8.007(1)(k) (subsequently renumbered as Rule 61G14- 17.003[1][k]), Florida Administrative Code.

PENALTY

Because the Board has rejected the hearing officer's conclusions of law which conclude that Respondent was not guilty of any violation of law or rule and because, the Board has made the legal conclusion that the facts show that Respondent has violated the statute and rule cited above, the Board is justified in imposing a penalty rather following the hearing officer's recommendation that the charges be dismissed.

It is therefore ORDERED as follows:

1. Respondent's Florida harbor pilot's license is hereby retroactively suspended for a period of six months beginning September 9, 1993.

   
   

2. Respondent shall, on or before December 31, 1994 pay to the Board of Pilot Commissioners at its Tallahassee office, an administrative fine in the amount of one thousand dollars ($1,000.00).

   
   

3. Respondent is hereby placed on probation for a period of twelve months from the date of this order. The terms of probation are:

1. Respondent will timely pay the above administrative fine

   
   

2. Respondent shall not violate any provision of Chapter 310.101, Florida Statutes.

This order takes effect upon filing with the Clerk of the agency. Done and ordered this 21st day of July, 1994.

BOARD OF PILOT COMMISSIONERS

ROBERT SWINDELL CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to Captain Warwick G. Cahill, c/o David Pope, Attorney at Law, Suite 1700, First Union Center, 100 South Ashley Drive, Tampa, Florida 33602, and by interoffice mail to Charles F. Tunnicliff, Attorney at Law, Department of Business and professional Regulation, 940 North Monroe Street, Tallahassee, Florida 32399-0773 on this

day of , 1994. (filed with DOAH undated)

(filed with DOAH unsigned) Sue Foster, Executive Director Board of Pilot Commissioners

Docket for Case No: 93-006170

Orders for Case No: 93-006170