Fitzgerald v. Davis

160 So. 2d 345, 1964 La. App. LEXIS 1274
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1964
DocketNo. 1262
StatusPublished

This text of 160 So. 2d 345 (Fitzgerald v. Davis) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzgerald v. Davis, 160 So. 2d 345, 1964 La. App. LEXIS 1274 (La. Ct. App. 1964).

Opinion

REGAN, Judge.

Plaintiff, Peter Fitzgerald, instituted this suit to be reinstated as a New Orleans-Baton Rouge Steamship pilot, alleging that his Commission had been wrongfully revoked by Governor Jimmie H. Davis on December 12, 1960, after the Board of Commissioners of the New Orleans-Baton Rouge Steamship Pilots Commission had illegally recommended the revocation thereof without affording him a hearing, contrary to the statutory law of this state. In addition thereto, he prayed for a money judgment in the amount of $1,700.00 per month from the date of his dismissal until the rendition of a judgment ordering his reinstatement.

The defendants cited herein were Jimmie H. Davis, individually, and as governor of the State of Louisiana; Joseph A. Lennox, Jr., Ruel Reichert, Jr., and Charles H. Hough, individually, and as president of the New Orleans-Baton Rouge Steamship Pilots Commissioners and as members of the New Orleans-Baton Rouge Steamship Pilots Association; S. K. Sprada, individually, and as President of the New Orleans-Baton Rouge Steamship Pilots Association and the association itself.

All of the foregoing defendants, but the Governor, pleaded the exceptions of no right or cause of action, asserting that the plaintiff’s only remedy was a review of the Governor’s action so as to determine whether he acted arbitrarily or capriciously.

The defendants then answered and explained therein that the plaintiff’s commission as a river pilot was revoked because he was involved in numerous accidents as a pilot, and he was afforded a full hearing to disprove his alleged incompetency before the board recommended his dismissal.

From a judgment dismissing plaintiff’s suit, he has prosecuted this appeal.

The record reveals that the plaintiff was issued a commission as a New Orleans-Baton Rouge Steamship Pilot by Governor Earl K. Long on October 30, 1956. The certificate made him eligible for membership in the New Orleans-Baton Rouge Steamship Pilots Association, a private organization to which all river pilots commissioned to operate ships in the Mississippi River between Baton Rouge and New Orleans belong. Each member thereof is issued' a certificate of stock, entitling him to participate monthly in a proportionate share of the earnings of the association.

To reiterate, plaintiff received his commission on October 30, 1956, and between that date and December 8, 1960, a period of approximately four years, plaintiff, in the course of piloting various ships, became involved in fourteen marine accidents, which included collisions with other ships, with the Baton Rouge dock, and the grounding of several vessels.

In view of his record, the Standard Oil Company informed the association that under no circumstances would it permit the plaintiff to act as a pilot aboard one of its ships.

The monetary damages caused by the accidents referred to hereinabove, in which, [347]*347the plaintiff was involved, exceeded $250,-000.00, and by the fall of 1960, the pilots’ association and the Commission became alarmed relative to the plaintiff’s ability to act in the capacity of a pilot.

The association of pilots is a private group. However, the commission was created in conformity with the provisions of LSA-R.S. 34:1042 which authorizes the governor to “ * * * appoint, by and with the advice and consent of the senate, three citizens who shall form the Board of New Orleans and Baton Rouge Steamship Pilot Commissioners.”

One of the obligations of the Commission is set forth in LSA-R.S. 34:1049, which provides in part:

“The board of commissioners shall report immediately to the governor all cases of incompetency, or carelessness, especially charges of incompetency or carelessness in connection with damages caused to or by the ship of which the pilot had charge, as well as all cases of neglect of duty, habitual drunkenness and gross violations of its rules. The governor shall, thereupon, refer the same for investigation to the board of commissioners, the members of which shall sit as investigators and report their findings to the governor, recommending, if justified, a penalty. Whereupon, the governor may remove, suspend, or reprimand in his discretion.”

In the fall of 1960, the Board of Commissioners was then composed of Captain Charles Hough, Captain Joseph A. Lennox, Jr., and Captain Ruel Reichert, Jr.

In view of the Commission’s growing concern resulting from the plaintiff’s accident prone record, Captain Lennox met with the attorney general in October of 1960 to discuss the case, and he was referred to Mr. Ware, the executive counsel to the Governor. Thereafter, Ware informed him that the Governor wanted Lennox to conduct a more complete investigation.

On October 3, 1960, Captain Lennox addressed the following letter to the plaintiff:

“It has come to the attention of the New Orleans and Baton Rouge Steamship Pilots Commissioners, that while acting in your official capacity as a pilot of the New Orleans and Baton Rouge Steamship Pilots Association, the ships SS Producer, and the SS Sigvick were involved in accidents on September 13, 1960 and September 25, 1960, respectively. In said accidents there was considerable damage to the ships involved, and in one accident to the dock of the Port of Baton Rouge.
“Under the circumstances, this Commission feels that it has the obligation and duty to investigate the facts and circumstances surrounding the said accidents, and make such recommendations as it in its judgment deems advisable and proper, all in accordance with Louisiana Revised Statutes 34:1049.
“You are hereby notified that this Commission will hold a hearing on Tuesday, October 18, I960, at 3 o’clock P.M. at 929 National Bank of Commerce Building, at which time you will be given an opportunity to present all the facts pertinent to the occurrence of said accident.
“The investigation and hearing will include all matters including previous accidents insofar as they might touch upon your competency as a pilot.
“You may, if you so desire, be represented by a counsel of your own choice at said hearing.” (Emphasis ours.)

Plaintiff appeared at this meeting together with his attorney, Donald Lindquist, at which time all of the Commissioners were present. The negligence attributed to the [348]*348plaintiff, which involved five maritime accidents, was discussed on this occasion, and finally written questions were propounded to him directed to one particular accident. Plaintiff was also informed that Standard Oil of New Jersey told the association that it did not want him to act as a pilot on any of its ships.

A second meeting was convened on November 8th, at which time the plaintiff submitted his answers to the written interrogatories. With reference to Standard’s objections to the plaintiff’s ability as a pilot, Lindquist informed the Commissioners that he had endeavored to influence the Standard officials to change their decision to eliminate the plaintiff as a pilot of their ships, but his efforts proved to be unsuccessful.

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160 So. 2d 345, 1964 La. App. LEXIS 1274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-davis-lactapp-1964.