UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA : 

UNITED STATES COAST GUARD : 

 : DECISION OF THE 

 vs. : 

 : VICE COMMANDANT 

LICENSE NO. 713770 : 

 : ON APPEAL 

 : 

: NO. 2642 

Issued To: DOMENIC RIZZO : 

This appeal is taken in accordance with 46 USC § 7703, 46 CFR § 5.701, and 

33 CFR Part 20. 

By a Decision and Order (D&O) dated August 27, 2001, an Administrative Law 

Judge (ALJ) of the United States Coast Guard at Baltimore, Maryland, suspended 

Appellant’s license for two (2) months outright upon finding proved a charge of 

negligence. The specifications found proved alleged that on January 30, 2000, Appellant, 

while serving as operator of the tug JOHN TURECAMO and while acting under the 

authority of the above-captioned license, navigated the tug in such a manner as to cause 

the barge PEQUECO II to sink in the upper Chesapeake Bay, just south of Turkey Point, 

resulting in approximately 100 gallons of diesel oil pollution, a five week salvage 

response and approximately $150,000 in damages. 

PROCEDURAL HISTORY

The hearing in this matter commenced in Baltimore, Maryland, on January 23, 

2001, and re-convened on January 24, 2001 and January 25, 2001. Appellant appeared 

with counsel and “admitted” jurisdiction, but “denied” some of the allegations stated in 

the charge sheet. 
RIZZO NO. 2642 

On January 17, 2001, the ALJ ordered the consolidation of Appellant’s case with 

that of Mr. Dannie K. Card.1 Following the consolidation of the case, Joint Stipulations 

of Fact were submitted by the parties and placed in the record by the ALJ. [D&O dated 

August 27, 2001, page 4] At the Hearing, eleven (11) witnesses were called, including 

Appellant and Mate Card. The Coast Guard introduced ten (10) exhibits into evidence 

and a Memorandum of Points and Authorities. Respondents Rizzo and Card, likewise, 

introduced ten (10) exhibits into evidence. Upon the completion of the hearing, the ALJ 

ordered the submission of post hearing briefs by March 23, 2001, and reply briefs twenty 

days thereafter, by April 13, 2001. The ALJ issued the D&O on August 27, 2001. 

Appellant filed his notice of appeal on September 21, 2001, and requested a 60-day 

extension of time within which to file his appellant brief on September 26, 2001. 

Appellant perfected his appeal by filing a brief on December 19, 2001, within the filing 

requirements set forth at 33 CFR § 20.1003 and the time allotted by the extension. 

Therefore, this appeal is properly before me. 

APPEARANCE: Ober, Kaler, Grimes & Shriver (Geoffrey S. Tobias, Esq. and 

Eric M. Veit, Esq.) for Appellant, 120 E. Baltimore Street, Baltimore, Maryland 

21202-1643. The U.S. Coast Guard was represented by LCDR John Nadeau and LT 

Russell Bowman, U.S. Coast Guard Activities Baltimore, Baltimore, Maryland. 

FACTS

At all times relevant herein, Appellant was the holder of the above-captioned 

license, issued by the United States Coast Guard. Appellant has been the holder of this 

 

1

 Following the loss of the barge PEQUECO II, the Coast Guard brought Suspension and Revocation 

proceedings against both Appellant and Dannie K. Card, who served as Chief Mate of the JOHN 

TURECAMO. The ALJ found both men negligent and ordered two (2) month suspensions of each of their 

licenses. Appellant elected to appeal the decision of the ALJ, while Mr. Card did not. 

2
RIZZO NO. 2642 

license since his graduation from the Maine Maritime Academy in 1986. [Transcript 

(Tr.) at 499] 

On the morning of January 30, 2000, Appellant, while in the employ of Moran 

Towing of Pennsylvania (Moran), was instructed to tow the uninspected barge 

PEQUECO II from the PQ Corporation’s Chester Plant, at Chester, Pennsylvania to 

Grace Chemical’s facility in Baltimore, Maryland, via the Chesapeake and Delaware 

(C&D) Canal. [D&O at 6-8; Tr. at 512-513]. During the voyage, both Appellant and 

Mr. Card operated the JOHN TURECAMO; Appellant served as Master while Mr. Card 

served as Chief Mate. [Tr. at 6-7] 

On January 29-30, 2000, the Coast Guard issued several Broadcast Notices to 

Mariners over VHF Channel 16. [D&O at 7; Stipulation 6] The notices stated that the 

C&D Canal was open to vessel transit, but, depending upon location, between 70 and 100 

percent of the canal was covered with ice and that pack ice of up to one foot thick was 

present in some locations. [Stipulation 28] In addition, the Captain of the Port of 

Baltimore issued an advisory indicating that vessels operating between Tolchester Beach 

and Town Point in the Elk Neck River (near the westernmost portions of the C&D Canal) 

were required to have steel hulls and a minimum of 2400 horsepower twin screw. [Tr. 

512-513; D&O at 7; Stipulation 28]. As a result of this requirement, the tug JOHN 

TURECAMO, an uninspected towing vessel rated at 3000 horsepower, was used to tow 

the barge PEQUECO II, rather than the barge’s normal tug, the CYNTHIA MORAN. 

[Tr. at 512-513; D&O at 8; IO Exhibit H] 

3
RIZZO NO. 2642 

The barge PEQUECO II is a 170’ x 35’ x 10’6” barge used to carry sodium 

silicate, a Category C noxious liquid that uninspected barges may only carry on inland 

routes. [D&O at 8] On January 30, 2000, the barge was loaded with approximately 1072 

tons of sodium silicate. [D&O at 8; IO Exhibit H] 

The PEQUECO II has a single skin hull with rakes fore2 and aft of the cargo 

block and three pairs of cargo tanks, each sharing one 18” x 30” rectangular vent located 

on the centerline. [D&O at 9; IO Exhibits H and J] The deck has some sheer at both 

rakes, which increases the depth of the barge from 10’6” to 11’6” at the extreme bow and 

stern. [D&O at 9; IO Exhibits H, J] 

When Appellant arrived at the barge on January 30, 2000, it had already been 

loaded with sodium silicate. Neither Appellant nor his crew were responsible for loading 

the barge and they were given no information as to the amount of cargo loaded, its 

ullages, its stowage, or any safety information concerning its handling. [D& O at 10; Tr. 

at 34, 519-520] Furthermore, none of the fittings on the barge were labeled and no 

PEQUECO II personnel were present to provide information concerning either the barge 

or its cargo. [D&O at 10; Tr. at 519-520] 

Before getting underway, Appellant listened to a Broadcast Notice to Mariners 

concerning the ice conditions in the C&D Canal. [D&O at 9; Tr. at 512] Upon hearing 

the Notice, Appellant called the canal dispatcher to determine whether the canal was 

open. [D&O at 9; Tr. at 512-13] In addition, he put out a general inquiry on VHF 

 

2

 The barge’s forward rake tank, of particular import in this case, is a void space between the headlog and 

the first cargo tank. [D&O at 9] 

4
RIZZO NO. 2642 

channel 13 to gain first-hand accounts of the conditions in the canal from other vessels 

that had recently transited it. [D&O at 9; Tr. at 514] Appellant spoke with at least three 

people concerning the canal’s condition—the captain of the UTV TENACIOUS, who 

transited the canal the previous day; an unidentifiable captain; and deckhand Vance 

Holly, who had made a trip through the canal a few days earlier—and concluded that 

although the parties consulted agreed that conditions in the canal were “bad”, the vessel 

nonetheless “met all the criteria...[it]...had to meet in order to get underway.” [Tr. at 

514] 

As a further precautionary measure, Appellant inspected the barge before 

departing port. Appellant walked the perimeter of the barge, checked to ensure that all 

hatches were appropriately closed, checked the mooring lines and assisted the deckhands 

in securing the barge for tow. [Tr. at 520-521] While inspecting the barge, Appellant did 

not see any wasted metal or rust streaks around the vents. [D&O at 10; Tr. at 511] 

However, Appellant did note that the barge appeared to be trimmed differently than it 

was when he had moved it six weeks earlier. [D&O at 10; Tr. at 511] During the voyage 

at issue, the barge appeared to have less freeboard than it did in December and although 

it was even keeled for the January trip; in December, the after draft was greater than the 

forward draft. [D&O at 11; Tr. at 511-512] 

Following the inspection of the vessel, Appellant and Mr. Card agreed to arrange 

the tow so that the tug JOHN TURECAMO would push the barge ahead, rather than 

towing it on the hip or astern. [D&O at 11; Tr. at 517-518; Stipulation 10] Both men 

5
RIZZO NO. 2642 

agreed that, under the circumstances of the voyage, this was the “preferred method” of 

towing. [D&O 11; Tr. at 503] 

At approximately 11:30 a.m., on January 30, 2000, the JOHN TURECAMO got 

underway enroute Baltimore, Maryland, under Mr. Card’s operation. [D&O at 12; 

Stipulation 8] Shortly after departing the PQ Facility, Appellant went to his room to rest 

before taking on the second operational shift, while Mr. Card remained in the wheelhouse 

for the first watch. [D&O at 12; Tr. at 522] 

By all accounts, the initial stages of the voyage were uneventful. In fact, transit 

down the Delaware River and into the C&D Canal was faster than normal. [D&O at 11; 

Tr. at 402] The tug and barge (tow) entered the canal at approximately 1:18 p.m. and 

operated under a reduced speed of approximately 7.8-7.9 knots. [Tr. at 403; 

Respondent’s Exhibit 1] Although there were “moderate” patches of ice present as the 

vessels entered the canal and ice and water washed on the PEQUECO II’s deck, transit 

was as anticipated. [D&O at 12; Tr. at 87, 401, 416] The tow encountered its first patch 

of heavy ice just east of the canal dispatcher’s station. [Tr. at 419] Mr. Card reduced 

speed before making contact with the ice and, then, increased speed to make it through 

the ice. [D&O at 14; Tr. at 428] Transit through the initial heavy ice went as expected. 

Shortly thereafter, the tow encountered a second, heavier patch of ice west of the 

Chesapeake City Bridge. [D&O at 14; Tr. at 427-28] Again, Mr. Card reduced speed 

before impacting the ice. [D&O at 14; Tr. at 428] After passing through the ice and 

following an attempt to increase speed, Mr. Card noticed that the barge appeared to be 

down by the head and lower in the water than normal. [D&O at 14; Tr. at 428] Upon 

6
RIZZO NO. 2642 

realizing that the vessel’s trim had changed, Mr. Card became concerned and awakened 

Appellant. [D&O at 14; Tr. at 496] When Appellant arrived at the wheelhouse, he 

noticed both the change in trim and that the barge was taking the same amount of water at 

the lower speed as it had at faster speeds earlier in the voyage. [D&O at 14; Tr. at 431] 

In addition, Appellant noticed a milky white substance, apparently cargo, leaking from 

the barge. [D&O 15; Tr. at 51, 436] Appellant and Mr. Card reduced the tow to idle 

speed. [D&O at 15; Tr. at 431, 524] At this point, the tow was west of Dan’s Yard. [Tr. 

at 428] Appellant did not want to reverse the tow and return to the yard because he was 

afraid that doing so would “trip”3

 the tow and because he did not believe that Dan’s Yard 

was a suitable place to tie up the tow. [D&O at 15; Tr. at 465, 497, 546] Furthermore, 

Mr. Card feared that Dan’s Yard was not deep enough to accommodate the tow. [D&O 

at 15; Tr. at 465] 

After informing Moran of the situation, Appellant, assisted by deckhand Vance 

Holly, went onto the barge and, in an attempt to lessen the weight on the bow, removed 

the ice that had accumulated there. [D&O at 15; Tr. at 30, 529] To remove the heavy 

pieces of ice that had accumulated on the bow, Appellant and Mr. Holly chopped at the 

ice with an axe and sledgehammer. [D&O at 16; Tr. at 89] Appellant looked at the hull, 

vents, running lights, and deck and observed no damage, except that two lifeline 

stanchions and a wire had been washed partially overboard. [Tr. at 94, 117, 531-34] 

Upon further inspection, Appellant determined that although the forward most portion of 

the bow was inaccessible, cargo was leaking from the barge’s port side, approximately 35 

feet aft of the bow. Appellant could not determine the exact location of the leak. [D&O 

 

3

 As used here, “trip” means to capsize. 

7
RIZZO NO. 2642 

at 16; Tr. at 123-24, 530-35] Even after seeing what he believed to be cargo in the water, 

Appellant did not inspect the cargo tanks because he was unfamiliar with the 

characteristics of sodium silicate. [D&O at 16; Tr. at 532] 

Upon returning to the JOHN TURECAMO, Appellant called Moran again. 

[D&O at 16; Tr. at 548-49] Appellant determined that the tow had to proceed forward to 

clear the canal. Although Appellant considered beaching the PEQUECO II, he believed 

that would be more dangerous for the crew than continuing slowly towards Baltimore. 

[D&O at 15; Tr. at 546, 548-53] Therefore, Appellant continued to move the vessel at 

the slowest possible safe speed, 2.5 to 3 knots. [D&O at 16; Tr. at 443] When the tow 

arrived in the area of Sandy Point, it encountered a third “solid sheet” of heavy ice. 

[D&O at 16; Tr. at 442-43, 557] During this encounter, Mr. Card saw a sheet of ice 

come across the barge’s bow and break the PEQUECO II’s starboard running light. 

[D&O at 17; Tr. at 37, 39, 442] Appellant informed Moran of the situation and suggested 

that he was considering beaching the barge when the canal was cleared. [D&O at 17; Tr. 

at 659] Moran informed Appellant that, even with one cargo tank breached, there would 

be enough reserve buoyancy to keep the barge afloat. [D&O at 17; Tr. at 552] 

Ultimately, Appellant decided that the safest option was to continue towards Baltimore, 

at a slow speed and reconfigure the tow when there was sufficient space to do so. [Tr. at 

549-53] 

The first area where Appellant could reconfigure the tow was an area known as 

the “triangle,” near buoys 18-20, near Old Town Point. [D&O at 17] By the time the 

tow arrived there, only a few inches of freeboard remained at the barge’s lowest point. 

8
RIZZO NO. 2642 

[D&O at 17; Tr. at 489] The tow was reconfigured so that the JOHN TURECAMO 

towed the PEQUECO II astern on a short hawser with the barge’s stern rigged as the 

“working bow”4

. [D&O at 18; Tr. at 560-61, 630] Once the tow was reconfigured, the 

situation appeared to be abated and the barge appeared to tow steadily without any 

further change in draft. [D&O at 18; Tr. at 630] The tow progressed without further 

incident for approximately one hour. [D&O at 18; Tr. at 121, 448] After passing Turkey 

Point, the barge took a sudden list to its starboard that was immediately observed by 

Appellant. [D&O at 18] In an attempt to clear the canal, Mr. Card turned right at 

maximum speed. [Tr. at 666] The tug pulled the barge for approximately fifteen 

minutes, until it disappeared into the water and its towline had to be cut. [D&O at 18; Tr. 

at 667] The PEQUECO II sank at approximately 6:10 p.m. on January 30, 2000, on the 

western edge of Turkey Point—Old Town Point Warf Channel. [D&O at 19] 

BASES OF APPEAL

 This appeal has been taken from the order imposed by the ALJ finding proved the 

charge of negligence and imposing a two (2) month suspension of Appellant’s license. 

Appellant sets forth the following bases of appeal: 

I. The ALJ erred by ruling that Appellant acted negligently in commencing 

the tow and in finding the barge PEQUECO II seaworthy. 

II. The ALJ erred by ruling that Appellant acted negligently in making up the 

tow so that the barge PEQUECO II was pushed by the tug JOHN 

TURECAMO. 

III. The ALJ erred by ruling that Appellant, upon discovering that the barge 

appeared to be leaking, acted negligently in proceeding to the closest port 

when his supervisors had informed him that the barge would remain 

afloat. 

 

 

4

 In this configuration, the tow was arranged so that the barge was towed backwards. 

9
RIZZO NO. 2642 

IV. The ALJ erred by ruling that testimony and findings of surveyor William 

R. Tye were incredible while the testimony and findings of surveyor Kim I. 

Mac Cartney were credible. 

OPINION

I. 

The ALJ erred by ruling that Appellant acted negligently in commencing the tow and in 

finding the barge PEQUECO II seaworthy. 

 As used in 46 CFR § 5.29, negligence is the “commission of an act which a 

reasonable and prudent person of the same station, under the same circumstances, would 

not commit, or the failure to perform an act which a reasonable and prudent person of the 

same station, under the same circumstance, would not fail to perform.” Therefore, in 

order to prove the charge of negligence, it is necessary to prove that Appellant's conduct, 

in some manner, failed to conform to the standard of care required of the reasonably 

prudent master under the same circumstances confronted by Appellant. Appeal Decision 

2321(HARRIS), Appeal Decision 2283 (LITTLEFIELD) 

A. 

 Appellant first contends that the ALJ erred in finding that he acted negligently in 

commencing the tow. Addressing the standard of care applicable to the case at issue, 

Appellant asserts: “[a] prudent mariner would consult every available source in 

ascertaining whether the assigned trip was reasonably safe.” [Brief of Appellant, at 14] 

Appellant contends that, before commencing the tow, he listened to the Broadcast Notice 

to Mariners, spoke with the Moran dispatcher and consulted with vessel captains who had 

recently transited the canal. In so doing, he concludes, “[n]one of these sources gave...a 

reason not to proceed.” [Id., at 15] Furthermore, Appellant notes that the Canal was 

10
RIZZO NO. 2642 

“legally and physically open” and that “it is not the job of the professional mariner to 

wait for perfect, or even better, conditions” when commencing tow. [Id.] 

In holding that Appellant was negligent in commencing the tow, the ALJ 

disagreed with Appellant’s contention that he had no reason to conclude that the barge 

was loaded in an improper or unseaworthy manner. The ALJ found that the “limited 

freeboard combined with the forecasted ice conditions on the morning of January 30, was 

reason enough to refuse the tow.” [D&O at 31] The ALJ further found that Appellant 

was negligent in undertaking the tow without obtaining information as to the cargo to be 

transported or its stowage. [D&O at 32] Furthermore, the ALJ found that Appellant’s 

attempt to contact other sources concerning conditions in the canal, although 

“inadequate,” gave him “sufficient reason not to commence the voyage.” [Id.] 

I may only reverse the ALJ’s decision if his findings are arbitrary, capricious, 

clearly erroneous or based on inherently incredible evidence. Appeal Decisions 2584 

(SHAKESPEARE), 2570 (HARRIS), aff’ NTSB Order No. EM-182 (1996), 2390 

(PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 (DRIGGERS), 

and 2474 (CARMIENKE). 

 It is beyond question that the ultimate decision to proceed with the voyage rests 

with the operator of the vessel. Appeal Decisions 2293(SMITH & RUBY) and 

2321(HARRIS). Furthermore, commentators have noted that: 

courts are inclined to give great weight to the discretion of the tug master 

in deciding whether to depart from port in light of known weather reports, 

or, having departed, in deciding what action should be taken to safeguard 

the tow. His decision should be judged in the light of conditions which 

existed at the time the decision was made to proceed and not by what later 

developed. 

11
RIZZO NO. 2642 

[Parks, The Law of Tug, Tow and Pilotage, p. 81 (1982)] The broad scope of the tug 

master’s discretion is well developed in case law. 

In the Imoan, the Second Circuit opined that, in judging a mariner’s decision to 

proceed in the face of inclement weather, “to say that every master must call up the 

Weather Bureau for unpublished news, every time he leaves port...seems to us to 

demand an excessive caution.” The Imoan; The Alice Moran; Frank Jacobus Transp. Co. 

v. Moran Towing & Transp. Co., Inc., 67 F.2d 603; 604; 1933 U.S. App. LEXIS 4563 

(2nd Cir. 1933). Although the court noted that “one of the tug masters called at the trial 

said that he always did call up New York,” it nonetheless found that “no such general 

custom was shown, and in the absence of proof that it had become the practice of careful 

mariners, we think it was unnecessary.” Id., at 604. Although weather warnings were 

not present before the commencement of the Imoan’s voyage, the courts have extended a 

tug master’s discretion to situations where weather warnings are present. In Ocean 

Burning, a tug proceeded with its voyage in the face of weather warnings resulting in the 

loss of its tow. Ocean Burning Inc. v. Moran Towing & Transp. Co., Inc., 1974 A.M.C. 

2307 (S.D.N.Y. 1974). However, even in the face of the weather warnings, the court 

found that the decision to proceed under the weather forecasts given was within the 

master’s discretion. Id. at 2312. Indeed, citing S.C. Loveland Co., Inc., 1995 U.S. Dist. 

LEXIS 2732 (E.D. Pa. 1995), a court determined that the decision to proceed under 

weather forecasts of small craft warnings was, likewise, within the master’s discretion. 

In Cargill, Inc., v. C & P Towing Co., Inc., 1990 U.S. Dist LEXIS 19202; 1991 AMC 

101, (D. Va. 1990), the U.S. District Court, discussing the issue of the tug master’s 

discretion, noted: 

12
RIZZO NO. 2642 

To be held liable the decision of the master must be unreasonable under 

the circumstances. The rationale underlying the rule granting a master 

great discretion rests upon the basic principle that a court reviewing the 

master’s decisions must judge such decisions at the time they were made 

and with consideration for the circumstances that preceded the decisions, 

not by what later developed. 

[citations omitted] [Id. at *13] 

A thorough review of these cases suggests that the ALJ should afford Appellant 

great discretion in his decision to commence a voyage. The record clearly shows that 

Appellant exercised caution in deciding to commence the voyage at issue. Appellant was 

aware of the Broadcast Notice to Mariners and contacted the canal dispatcher as well as 

other vessels that had recently transited the canal in an attempt to ascertain its condition. 

In so doing, he learned that although conditions in the canal were “bad,” other vessels 

had successfully made the voyage. [Tr. at 514] Given the case law noted above, and a 

thorough review of the record, it is clear that the ALJ did not consider the great discretion 

afforded Appellant in determining whether to commence the voyage. Therefore, I find 

the ALJ’s decision in this regard to be clearly erroneous. 

Having said that, I nonetheless agree with the ALJ that Appellant should have 

ascertained information as to the nature of the PEQUECO II’s cargo and its stowage 

before undertaking the voyage at issue. When a barge is carrying a noxious substance, it 

is imperative that the tug master in command of that vessel be aware of both the 

characteristics of the cargo being carried and its stowage.5

 As is evident in this case, that 

information is necessary not only to ensure the safety of the tug’s crew should the barge 

begin leaking the noxious substance, but also to address any situations that have the 

 

5

 This is particularly so in light of today’s current security environment. 

13
RIZZO NO. 2642 

direct ability to affect the seaworthiness of the vessel. Cf. 46 C.F.R. § 153.907 (stating 

that the master of a tankship engaged in cargo operations is required to know specific 

information about the noxious substance or bulk liquid hazardous material being carried 

including, among other things, its name, description, any hazards associated with its 

handling, its quantity, and its location aboard the vessel). 

The record shows that although Appellant was aware that the PEQUECO II was 

loaded with sodium silicate, he did not determine the amount of cargo loaded, its ullages, 

its stowage, or any safety information concerning its handling. [D&O at 8-10; Tr. at 34; 

519-520; IO Exhibit H] Furthermore, when cargo was observed to be leaking from the 

barge, Appellant did not want to investigate the source or extent of the leaking cargo or 

sound the cargo tanks because he was unfamiliar with the characteristics of sodium 

silicate. [D&O at 16; Tr. at 532] Further, the ALJ noted in his D&O, “Captain Rizzo 

admits that information concerning the nature of the product, the barge’s tank 

arrangement, and the vessel’s loading configuration is critical to the decision making 

process and to the safety of his crew.” [D&O at 31-32] [citations omitted] In short, I 

agree with the ALJ that Appellant should have learned more information about the cargo 

carried aboard the PEQUECO II before commencing the voyage at issue, although his 

failure to do so is insufficient to support a legal finding against him in this regard. 

B. 

 Appellant next contends that the ALJ erred in finding that the barge PEQUECO II 

was seaworthy. I do not agree. 

14
RIZZO NO. 2642 

 Appellant notes, citing Massman v. Sioux City & New Orleans Barge, 462 F. 

Supp. 1362, 1980 AMC 1164 (W.D. Mo. 1979), that a barge owner has a duty to furnish 

a seaworthy vessel and, as a consequence, a master is entitled to assume that the tendered 

barge was seaworthy. To that end, he contends that Appellant was not provided a 

seaworthy barge and, as such, Appellant was not responsible for latent defects therein. 

Appellant’s surveyor, Mr. Tye asserts that the PEQUECO II’s “vents were severely 

wasted [and] where welded to the deck, but that this weakening and corrosion was not 

visible on January 30.” [Brief of Appellant, at 12] While Appellant acknowledges his 

own inspection of the barge, he nonetheless asserts that, because the vents were freshly 

painted, the wasted condition of the PEQUECO II was hidden and “[t]he negligence of 

PQ in concealing the wasted condition of the vents is no basis for finding...[Appellant] 

...at fault.” [Id.] 

 In holding that the PEQUECO II was seaworthy, the ALJ found Mr. Tye’s 

testimony “inaccurate and unrealiable” and, instead, accepted the testimony of the Coast 

Guard’s expert, Mr. MacCartney. Mr. MacCartney determined that the damage to the 

forward rake tank, which ultimately caused the flooding of that tank and subsequent 

sinking of the barge, was the result of the barge being pushed through the ice, thereby 

allowing large sheets of ice to come over the barges deck, damaging the vents. [Tr. at 

166] 

A careful review of the record shows that the issue of seaworthiness centers on 

which expert the ALJ deemed credible. 

15
RIZZO NO. 2642 

Determining the weight of evidence and making credibility determinations is 

within the sole purview of the ALJ. Appeal Decisions 2156 (EDWARDS), 2116 

(BAGGETT), and 2472 (GARDNER). In the instant case, it is true that conflicting 

testimony and findings exist; however, the conflicting evidence was sufficiently 

addressed by the ALJ in his D&O. I do not find the ALJ’s determinations, in this regard, 

to be arbitrary, capricious, or an abuse of his discretion. 

Only in exceptional circumstances, will I disturb the ALJ’s resolution of 

conflicting evidence. The rule in this regard is well established: 

[w]hen...an Administrative Law Judge must determine what events 

occurred from the conflicting testimony of several witnesses, the 

determination will not be disturbed unless it is inherently incredible. 

Appeal Decisions 2472 (GARDNER), 2390 (PURSER), aff’d sub nom Commandant v. 

Purser, NTSB Order No. EM-130 (1986), 2356 (FOSTER), 2344 (KOHAJDA), 2340 

(JAFFE), 2333 (AYALA), 2302 (FRAPPIER), and 2275 (ALOISE). In fact, I have long 

held that the findings of the ALJ need not be completely consistent with all the evidence 

in the record as long as sufficient evidence exists to reasonably justify the findings 

reached. Appeal Decisions 2492 (RATH) and 2282 (LITTLEFIELD). Therefore, upon a 

thorough review of the record, I find that the ALJ’s findings are sufficiently supported by 

evidence in the record and I will not disturb them. 

II. 

16
RIZZO NO. 2642 

The ALJ erred by ruling that Appellant acted negligently in making up the tow so that the 

barge PEQUECO II was pushed by the tug JOHN TURECAMO. 

Appellant asserts that the ALJ erred by rejecting “all the evidence, both the Coast 

Guard’s and that of the Respondent, that pushing [the barge] ahead was the safest 

course.” [Brief of Appellant, at 16] Appellant further asserts that the ALJ erred in 

concluding that the PEQUECO II had a “diminished freeboard,” stating that there was 

simply no evidence in the record to support such a conclusion. [Id. at 16-17] Finally, 

Appellant asserts that “[t]he cases cited by the Administrative Law Judge add no support 

to a finding of negligence...[because]...[d]ecisions addressing different barges, different 

tugs and different ice conditions can hardly overcome the direct testimony of the three 

experienced mariners, Messrs. Berg, Card and Rizzo.” [Id. at 18] I do not agree. 

It is the responsibility of the ALJ to weigh the evidence presented and to 

determine the weight given to conflicting evidence. Appeal Decisions 2421 (RADER)

and 2319 (PAVELIC). I will not reweigh conflicting evidence on appeal when the ALJ’s 

determinations can be reasonably supported by the record. Appeal Decisions 2504 

(GRACE), 2468 (LEWIN), and 2356 (FOSTER). In the same vein, the ALJ’s findings 

must be supported by reliable, probative, and substantial evidence. See 46 C.F.R. § 5.63; 

Appeal Decisions 2420 (LENTZ) and 2421 (RADER). Furthermore, the findings of the 

ALJ need not be consistent with all evidentiary material in the record. Appeal Decisions 

2424 (CAVANAUGH), 2282 (LITTLEFIELD), 2519 (JEPSON), 2492 (RATH), and 

2546 (SWEENEY). Again, I will reverse the findings of the ALJ only if they are 

arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. See

Appeal Decisions 2570 (HARRIS), aff’d NTSB Order No. EM-182 (1996), 2390 

17
RIZZO NO. 2642 

(PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 (DRIGGERS), 

and 2474 (CARMIENKE). 

Upon a thorough review of the record, I find that the ALJ’s conclusion that 

Appellant acted negligently in making up the tow is supported by substantial evidence in 

the record. 

There is sufficient evidence in the record to allow the ALJ to determine that the 

PEQUECO II was loaded heavier than normal on January 30, 2000. Mr. Bishop testified 

that the PEQUECO II was “loaded deeper than normal” and agreed with Appellant’s 

counsel that it had “about one to two feet of freeboard.” [Tr. at 47-48, 63] The deckhand 

of the tug JOHN TURECAMO also testified, when asked about the barge’s freeboard, 

“the barge was sitting a lot lower than it usually [was].” [Tr. at 84] Furthermore, 

Mr. Card testified that, on the day of the incident, “she [the PEQUECO II] had about a 

foot, foot and a half...of freeboard midships.” [Id. at 396] Finally, in his testimony, 

Appellant admitted that, on the day of the incident, the PEQUECO II was “trimmed 

differently” than it had been during his previous experience with the vessel. [Id. at 511] 

In addition to the fact that the PEQUECO II had a decreased freeboard on January 

30, 2000, the record also shows that the barge was not normally pushed through the 

canal. Discussing the typical towing configuration of the PEQUECO II, Mr. Holly 

testified that “we always towed the barge on the hip” and that only due to weather 

conditions, was that configuration changed on January 30. [Tr. at 80] Furthermore, 

Mr. Allen M. Dias, the traffic controller for the C&D Canal indicated, “usually always 

that barge [the PEQUECO II] goes through there [the canal] alongside.” [Tr. at 262] 

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RIZZO NO. 2642 

Indeed, with specific reference to the voyage of January 30, 2000, Mr. Dias testified as 

follows: 

Q. So it was unusual to see it [the PEQUECO II] being pushed? 

A. Yeah. That’s the only time [January 30, 2000] I ever know of it to 

go through there [the canal] like that. Usually they always have it 

alongside. 

[Id.] Furthermore, Mr. Edward D. Bishop, Chief Engineer of the JOHN TURECAMO, 

testified that “when you put a lot of power behind a barge, it tends to cause the barge, you 

know, the bow of the barge to go down in the water...from time to time.” [Tr. at 35] 

 In light of the evidence present in the record, the ALJ did not err in concluding 

that Appellant was negligent when he configured the tow in a pushing configuration. 

Finally, I do not agree with Appellant’s contention that the decisions cited by the 

ALJ do not support a finding of negligence. In citing Consolidated Grain & Barge Co., 

Inc. v. Consolidated Towing Co., 404 F. Supp. 634 (D.C. Mo 1975) and ConnersStandard Marine Corp. v. Oil Transfer Corp., 120 F. Supp. 180 (E.D.N.Y. 1953), the ALJ 

sought precedent for the notion that “negligence has been found in cases where a barge is 

pushed through heavy ice, rather than ‘towing astern.’” [D&O at 34] In ConnorsStandard, the court noted: 

Although it may not be negligent under all circumstances for a tug to push 

a barge ahead of it through ice, there is authority for the view that ‘towing 

astern is the preferred and usual method to be employed’...Here, in view 

of the evidence of the extremely heavy ice conditions existing on the 

Hudson River at this time, it was in my judgment negligent for the tug 

Matton to attempt to push this loaded barge ahead of it through extremely 

heavy ice. [Citations omitted] 

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RIZZO NO. 2642 

[120 F. Supp 180; 182 (E.D.N.Y 1953)] It is beyond question that the facts of the cited 

cases are directly on point to those of the instant case. In this case, the heavily loaded 

barge PEQUECO II was pushed through ice, resulting in the catastrophic loss of the 

barge. Therefore, I find, that the cases cited by the ALJ support his conclusion of 

negligence in that regard. 

III. 

The ALJ erred by ruling that Appellant, upon discovering that the barge appeared to be 

leaking, acted negligently in proceeding to the closest port when his supervisors had 

informed him that the barge would remain afloat. 

A. 

Appellant contends that the ALJ “should have compared what information the 

Respondent [Appellant] had that Sunday afternoon with the options that were available, 

rather than placing undue weight on the information compiled and the arguments refined” 

during the aftermath of the incident. [Brief of Appellant at 20] To that end, Appellant 

asserts that the actions taken to save the barge were proper and in accordance with the 

principals of good seamanship. Appellant contends: 1) that he acted appropriately by 

reducing the speed of the vessel when he observed what appeared to be cargo in the 

vicinity of the PEQUECO II; 2) that he was not negligent in failing to communicate with 

Dan’s Yard regarding the mooring of the apparently damaged PEQUECO II; 3) that a 

sounding of the barge’s tanks would have “served no purpose;” 4) that his decision not to 

beach the barge was “not ‘blindly’ made, but consisted of brainstorming among the 

Respondent [Appellant], the Moran office and the Coast Guard;” and, 5) that the Coast 

Guard’s involvement in Appellant’s decision to continue the voyage to Baltimore was 

“significant.” [Id. at 19-27] 

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RIZZO NO. 2642 

 The ALJ found Appellant’s decision to continue the voyage, following his 

assessment of the PEQUECO II’s condition, to be negligent. The ALJ noted that “an 

evaluation of Captain Rizzo’s decisions and actions pertaining to the incident cannot be 

based solely on...[the facts available to Appellant on the relevant day]...and must 

include the information he should have known in order to properly make the critical 

decisions entrusted to him as master of the vessel.” [D&O at 39] Further, the ALJ found 

that “[e]xpert witness testimony presented at the hearing supports a finding that Captain 

Rizzo’s ultimate decision to continue the voyage to Baltimore, despite the myriad of 

observed problems and his feelings that the hull was breached, constitutes negligence.” 

[Id. at 40] With respect to the Coast Guard’s involvement in the incident, the ALJ found 

that “[w]ith limited second hand information, the Coast Guard is not in a position to 

make the crucial decisions properly entrusted to the license[d] mariners on scene.” [Id. at 

43-44] Finally, after citing specific facts developed in the record, the ALJ determined 

that “the evidence viewed as a whole supports a finding that the casualty involved in this 

case was avoidable at numerous decision points...and...must be 

considered...[Appellant’s]... making.” [Id. at 44] 

In essence, Appellant asks that I abandon the factual findings of the ALJ in favor 

of his view of the incident. Because I find that there is sufficient evidence in the record 

to support the ALJ’s determination that Appellant was negligent in continuing the voyage 

to Baltimore after learning of the barge’s distress, I will not do so. 

As I have previously noted, it is the duty of the ALJ to evaluate the evidence 

presented at the hearing and to make ultimate findings of fact pertaining to each 

specification. Appeal Decisions 2156 (EDWARDS), 2116 (BAGGETT), 2472 

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RIZZO NO. 2642 

(GARDNER), and 2395 (LAMBERT). Therefore, I may only reverse the ALJ’s findings 

when they are arbitrary, capricious, clearly erroneous or based on inherently incredible 

evidence. Appeal Decisions 2584 (SHAKESPEARE), 2570 (HARRIS), aff’ NTSB 

Order No. EM-182 (1996), 2390 (PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 

(AYALA), 2581 (DRIGGERS), and 2474 (CARMIENKE). Finally, the findings of the 

ALJ need not be consistent with all evidentiary material in the record as long as there is 

sufficient material in the record to support their justification. Appeal Decisions 2492 

(RATH), 2282 (LITTLEFIELD), and 2395 (LAMBERT). 

While Appellant’s interpretation of the evidence may differ from that of the ALJ, 

he has not sufficiently shown that the ALJ’s findings are arbitrary, capricious, clearly 

erroneous, or based on inherently incredible evidence. Therefore, I will not overturn the 

decision of the ALJ. 

IV 

The ALJ erred by ruling that testimony and findings of surveyor William R. Tye were 

incredible while the testimony and findings of surveyor Kim I. Mac Cartney were 

credible. 

 Appellant contends that there was no foundation for the testimony of the Coast 

Guard’s surveyor, Mr. McCartney, and concludes that his findings with respect to the 

barge’s corrosion were “patently absurd.” [Brief of Appellant at 27] Appellant, 

discussing the content of Mr. McCartney’s testimony, contends that the testimony of his 

surveyor, Mr. Tye, was “more credible” and, concludes that the ALJ “misconstrued” his 

testimony. [Id.] For the same reasons noted in Opinion I, Part B, I do not find 

Appellant’s arguments persuasive. 

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23

CONCLUSION

 The findings of the ALJ, except as modified herein, are supported by substantial 

evidence of a reliable and probative nature. The hearing was conducted in accordance 

with the requirements of applicable regulations. Although I have determined that 

Appellant was not negligent in commencing the voyage in issue, given that I have found 

sufficient evidence to support a conclusion of negligence following the commencement 

of the voyage, I find the order of the ALJ to be appropriate. 

ORDER

 The Administrative Law Judge’s Decision and Order dated August 27, 2001, is 

AFFIRMED. 

 //S// 

 T. J. BARRETT 

 Vice Admiral, U.S. Coast Guard 

 Vice Commandant

Signed at Washington, D.C. this 29th of August, 2003.