UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD, 

Docket Numbers: 

Case Numbers: 

Complainant, 

vs. 

00-0580, 

00-0581 

P A00001373, 

PA00001374 

DECISION AND ORDER 

~ -~ -------DANNIE-CARD,- - - - --

DOMENIC RIZZO, 

Respondents 

BEFORE: HONORABLE JOSEPH N. INGOLIA 

Chief Administrative Law Judge 

U.S. Coast Guard 

APPEARANCES: 

FOR THE U.S. COAST GUARD 

LCDR John Nadeau and 

L T Russell Bowman 

Activities Baltimore 

2401 Hawkins Point Road 

Baltimore, Maryland 21226 

FOR THE RESPONDENTS 

Geoffrey S. Tobias, Esquire and 

Eric M. V eit, Esquire 

Ober, Kaler, Grimes & Shriver 

120 E. Baltimore Street 

Baltimore, Maryland 21202-1643 
I. PRELIMINARY STATEMENT 

The United States Coast Guard ("Coast Guard") initiated this administrative action 

seeking a two (2) month outright suspension of Merchant Mariner's License Number 770050 

issued to respondent Dannie Card and Merchant Mariner's License Number 776162 issued to 

respondent Domenic Rizzo. This administrative action was brought pursuant to the legal 

authority contained in 46 U.S. C. § 7703 and its underlying regulations codified at 46 C.F .R. 

--- - -- - -- ---------- - - - --

Part 5. The Coast Guard issued two complaints on September 11, 2000, which charged each 

respondent Card and Rizzo with Negligence, resulting from the sinking of the barge, 

PEQUECO II, in the upper Chesapeake Bay on January 30,2000 at approximately 1810. 

The negligence charge against respondent Card is supported by eight (8) factual 

allegations, which read as follows: 

1. The Coast Guard announced the expected ice conditions for the northern Chesapeake 

Bay over the VHF radio on 30 January 2000 in a Broadcast Notice to Mariners 

(BNTM). The broadcast informed mariners that 90% of the C&D Canal was covered 

with ice up to 1' thick. · 

2. At approximately 1130, you were operating the tug JOHN TURECAMO when it 

departed Chester, PA en route Baltimore, MD, pushing the barge PEQUECO II. 

3. When you departed Chester, PA, the barge PEQUECO II had approximately 12" of 

freeboard and was loaded with approximately 1072 tons of sodium silicate, a Category 

C noxious liquid substance. 

4. As you transited, you saw water and ice come over the headlog and onto the deck of the 

PEQUECO II. 

5. At approximately 1545, you woke the captain because you were aware that the 

freeboard at the bow of the PEQUECO II had decreased and the tow was behaving 

abnonnally. 1 

1 Factual allegation 5 contained a typographical error. The Coast Guard inadvertently omitted the word "you" in· 

the factual allegation. In these proceedings, an Administrative Law Judge may, sua sponte, amend charges to 

correct minor errors such as the Coast Guard's omission of the word "you" in factual allegation 5. See generally 

Appeal Decision 2449 (V ANRIGHT). Pursuant to this authority, the factual allegation in this case has been 

amended by the undersigned by adding the word "you." 

2 
6. At approximately 1630, you saw the starboard running light and its stanchion, a pipe 

approximately 1 ~"in diameter, welded to the deck, get knocked off the deck of the 

PEQUECO II. The starboard running light was located approximately 1 0' forward and 

1 0' outboard of the vent for cargo tanks 1 port and starboard. 

7. The vent for cargo tanks 1 port and starboard and the vent for the rake were damaged by 

the ice, allowing the water that was coming over the headlog to flood these spaces. 

8. At approximately 1810, the PEQUECO II sank in the upper Chesapeake Bay, just south 

of Turkey Point, resulting in approximately 100 gallons of diesel oil pollution, a 5 week 

salvage response, and approximately $150,000 in damages. 

The negligence charge againstrespondent Rizzo is supported hy. seven (7) factual _ 

L__ ____ allegations,which-read-as-follows:----------------------------

1. The Coast Guard announced the expected ice conditions for the northern Chesapeake 

Bay over the VHF radio on 30 January 2000 in a Broadcast Notice to Mariners 

(BNTM). The broadcast informed mariners that 90% of the C&D Canal was covered 

with ice up to 1' thick. 

2. When you departed Chester, PA, the barge PEQUECO II had approximately 12" of 

freeboard and was loaded with approximately 1 072 tons of sodium silicate, a Category 

C noxious liquid substance. 

3. As you transited, you saw water and ice come over the headlog and onto the deck of the 

PEQUECO II. 

4. At approximately 1545, you went aboard the PEQUECO II and noticed that: 

a. the freeboard had decreased to approximately 2", 

b. the port and starboard lifeline stanchions were bent and the lifeline was dragging 

in the water, 

c. pieces of ice up to 1' thick were on the deck of the barge, and 

d. approximately 35' aft of the headlog, on the port side, the hull appeared 

breached and a milky-white substance was leaking into the water. 

5. In lieu of seeking safe haven or intentionally grounding the PEQUECO II to prevent it 

from sinking, you chose to continue the voyage to Baltimore. 

6. The vent for cargo tanks 1 port and starboard and the vent for the forward rake were 

damaged by the ice, allowing the water that was coming over the headlog to flood these 

spaces. 

3 
7. At approximately 1810, the PEQUECO II sank in the upper Chesapeake Bay, just south 

of Turkey Point, resulting in approximately 100 gallons of diesel oil pollution, a 5 week 

salvage response, and approximately $150,000 in damages. 

Both respondents filed answers to the Coast Guard's complaints and requested a 

hearing. More specifically, respondent Rizzo admitted all jurisdictional allegations contained 

in the complaint and denied paragraphs 1 and 4 through 7 of the factual allegations; whereas 

respondent Card denied paragraph 1 (concerning his address) of the jurisdictional allegations 

and denied paragraphs 1, 3, ·and 6 through -8 of.the-factual allegations contained-in the 

~----complaint-;----'Fhe-hearing-for-respondenHHzzo-was-initially-set-for-January-1-8,----2001-in---------

Baltimore, Maryland and the hearing for respondent Card was initially set for January 23, 2001. 

Pursuant to the Coast Guard's unopposed Motion to Consolidate Hearings, the hearings for 

both respondents were consolidated into a single proceeding, which did not prejudice the rights 

of the parties. The consolidated case was scheduled for hearing on January 23, 2001. 

The consolidated hearing convened on January 23, 2001 in Baltimore, Maryland before 

the Honorable Joseph N. lngolia, Chief Administrative Law Judge of the United States Coast 

Guard. The hearing was conducted in accordance with the Administrative Procedure Act as 

amended and codified at 5 U.S.C. §§ 551-559, and the Coast Guard procedural regulations 

located at 33 C.P.R. Part 20. Lieutenant Commander John Nadeau and Lieutenant Russell 

Bowman represented the United States Coast Guard at the hearing. Both respondents also 

appeared at the hearing and were represented by the same counsel, Geoffrey S. Tobias, Esq. 

and Eric M. Veit, Esq .. 

A prehearing conference was held before the commencement of the hearing in which 

the parties submitted joint Stipulations of Fact, which were admitted into the record. A total of 

eleven ( 11) witnesses, including respondents Card and Rizzo, testified in this proceeding. At 

the hearing, the Coast Guard introduced ten (10) exhibits into evidence, together with its 

4 
Memorandum ofPoints and Authorities. Likewise, respondents introduced ten (10) exhibits 

into evidence at the hearing. 

On May 16, 2001, the respondents sent a letter to the undersigned in which they 

enclosed newspaper articles describing a recent sinking of a tugboat not connected to this case. 

It is unclear whether respondents are requesting the undersigned to take official notice of this 

event pursuant to 33 C.P.R. § 20.806, or whether their submission is an amendment or 

supplementation for the record submitted pursuant to 33 C;P;R. §§ 20.305(b) and-20.602; 

Regarctless, tne unaersignectfimlsthanne respondents'-letter contains no facts or, foTthat 

matter, any legal argument to support their case. Moreover, correspondence of this nature, 

even when copied to the opposing party, is an improper filing. Motions should be filed in 

accordance with pertinent regulations located at 33 C.P.R. § 20.309(2000). As such, 

respondents' post-hearing submission will not be included as part of the record in these 

proceedings. 

After careful review of the facts and applicable law in this case, I find that the Coast 

Guard has established by a preponderance of reliable and credible evidence that respondents 

Dannie Card and Domenic Rizzo both committed acts of negligence on January 30, 2000 by 

attempting to transport the barge PEQUECO II, a seaworthy vessel, from Chester, 

Pennsylvania to Baltimore, Maryland through the Chesapeake and Delaware Canal ("canal"), 

despite receiving published reports of harsh weather and severe ice conditions. In doing so the 

respondents disregarded the fact that the PEQUECO II was heavily loaded; thus, creating a 

noticeably diminished freeboard of approximately one foot, which, at times, dipped under 

water. 

5 
II. FINDINGS OF FACT 

The Findings of Fact found herein are based on the joint Stipulation of Facts submitted by 

the parties, documentary evidence and the testimony of the witnesses. 

1. This case involves the sinking of an uninspected barge, the PEQUECO II, which was fully 

loaded with over a thousand tons of sodium silicate. The barge was navigated and operated 

by Captain Domenic Rizzo and Mate Dannie Card from its facility at Chester, Pennsylvania 

down the Delaware River to the Chesapeake and Delaware Canal. The barge sank on 

January 30,2000 at approximately 7:10p.m. local time and settled on the western edge of 

the bottom of the Turkey Point to Old Town Point Wharf Channel. At the time of the 

casualty, the U.S. Coast Guard issued a Broadcast Notice to Mariners, indicating that severe 

ice warnings were in effect. (Entire Record). 

2. Mate Card has primarily worked on the Chesapeake Bay and Delaware River since 1962. 

(Tr. 377, 384-87, 380). He has held a Coast Guard document since 1967, a license since 

1986, and has never previously been involved in a suspension and revocation proceeding. 

(Tr. 385, 389). 

3. On January 30, 2000, Dan Card was serving as operator aboard the tug JOHN 

TURECAMO. During this time period, Mr. Card was the holder of, and serving under the 

authority of, his Coast Guard Issued License (No. 770050). (Stipulation 1). 

4. Captain Rizzo has continuously served in the towing industry since graduating from the 

Maine Maritime Academy in 1986. (Tr. 499). He has held a Coast Guard license since 

1986 and has never previously been involved in a suspension and revocation hearing. (Tr. 

499). 

6 
5. On January 30, 2000, Domenic Rizzo was serving as master aboard the tug JOHN 

TURECAMO. During this time period, Capt. Rizzo was the holder of, and serving under 

the authority of, his Coast Guard issued License (No. 776162). (Stipulation 2). 

6. A Broadcast Notice to Mariners (BAL-BNM-036-00) was broadcast by the Coast Guard 

over channel16 throughout the day on January 30, 2000. (Stipulation 6). 

7. The Broadcast Notice to Mariners: Ice Report as of January 29, 2000 (BAlrBNM-036-00) 

inchrded the following: 

• As ofZOUO on January Z9-;-2UOU;-tlie specificice conditions 

in the Chesapeake and Delaware canal were "90% 

coverage, up to 1 ft," pack ice rafting." 

• As of2000 on January 29, 2000, the specific ice conditions 

from Welch Point to Worton Point were "90% coverage 8", 

pack ice." 

• As of2000 on January 29, 2000, the specific ice conditions 

from Worton Point to Tolchester Beach were "100% 

coverage 4-6", pack ice." 

• As of2000 on January 29, 2000, the specific ice conditions 

from Tolchester Beach to Swan Point were "70% coverage 

1 ft", pack ice." 

• As of2000 on January 29, 2000, the specific ice conditions 

for Patapsco River and Baltimore Harbor were "1 00% 

coverage 1-2", pack ice." 

• A Captain of the Port Baltimore advisory for " ... steel 

hulled vessels only, with a minimum of 2400 horsepower 

twin screw, on waters between Tolchester Beach and Town 

Point in the Elk Neck River upper Chesapeake ... " 

• A general statement indicating, "these are advisories only 

and mariners should remain vigilant for those areas which 

may require greater precaution." 

• A general statement indicating "Mariners are cautioned that 

buoys may be extinguished or dragged off station and 

minor lights and day beacons may be destroyed due to ice." 

7 
(Stipulation 28). 

8. As a result of severe ice conditions in the Chesapeake and Delaware Canal from 

Pennsylvania all the way through Baltimore, Maryland, the Coast Guard had imposed a 

2400-horsepower restriction on vessels operating in those waters, which was in effect on 

January 30, 2000. (Tr. 512-513). 

9. On the morning of Sunday, January 30,2000, the JOHN TURECAMO, an uninspected 

towing-vessel rated at 3000 horsepower, was assigned the movement of the barge 

EQDECOli-from tlie l5arge'sfacil1ty aCCnester, Pennsylvania on tne Delaware River to 

the regular discharge berth at Grace Chemical in Baltimore, Maryland. (Tr. 512-513, 

Stipulation 3). 

10. Captain Rizzo and Mate Card had previously used the JOHN TURECAMO to tow the 

barge PEQUECO II on a prior round trip voyage (Chester-Baltimore-Chester), 

approximately six weeks earlier, in December of 1999. (Tr. 505). 

11. The PEQUECO II is a 170' x 35' x 10'6" barge dedicated to the carriage of sodium silicate, 

a Category C noxious liquid substance, which may be carried by uninspected barges 

operating only on inland routes. The PEQUECO II is not inspected or certified by the 

Coast Guard. (I. 0. Exhibits C, Hand J). 

12. For the transit on January 30, 2000, the barge PEQUECO II was fully loaded with over a 

thousand tons of sodium silicate. (Tr. 34, Stipulation 4). 

13. Per Annex II of the International Convention for the Prevention of Pollution from Ships 

(MAPOL), sodium silicate is classified as a Category C noxious liquid substance, which is 

defined as: 

• Noxious liquid substance which if discharged into the sea 

from tank cleaning or deballasting operations would 

8 
present a minor hazard to either marine resources or human 

health or cause minor harm to amenities or other legitimate 

uses of the sea and therefore require special operation 

conditions. 

(Stipulation 5). 

14. The PEQUECO II has a single skin hull with rakes (voids) fore and aft of the cargo block, 

which has three pairs of cargo tanks .. Each pair of cargo tanks shares one 18" x 30" 

rectangular vent, which is located on the centerline. The deck has some sheer at both rakes, 

gradually increasing the depth of the barge from 10'6" to 11 '6" at the extreme bow and 

stem. The barge also has a 2' headlog. (1.0. exhibits Hand J). 

15. The forward rake tank is a void space between the headlog of the barge and first cargo tank. 

(Tr. 289). The headlog is the most forward part of the barge located in front of the forward 

rake, and it drops down approximately a foot and a half to two feet. (Tr. 396). 

16. Before getting underway on the morning of the incident, Captain Rizzo listened to the 

Coast Guard's broadcast notice and was aware of severe ice warnings in the Chesapeake 

and Delaware Canal. (Tr. 512). He knew there was a front coming in and he anticipated 

problems with ice. (Tr. 593, 597). So, Captain Rizzo wanted to get through the canal 

during daylight hours. (Tr. 595). 

1 7. In addition, Captain Rizzo called the canal dispatcher directly by cell phone to determine 

whether the canal was open. (Tr. 512-13). He also gave a security call on Channel13 to 

inquire whether any vessels in the area had come through the canal and could give an 

eyewitness account of the ice and weather conditions. Captain Rizzo contacted the captain 

of the tug TENACIOUS, who had been through the canal the day before. (Tr. 514). 

Captain Rizzo also spoke with one other person, whose name he could not recall. In 

addition, Captain Rizzo spoke with the deckhand, Vance Holly, who had made a previous 

9 
trip through the canal a few days earlier and was able to get Mr. Holly's eyewitness account 

of the ice and weather conditions at that time. (Tr. 515). 

18. From these sources, Captain Rizzo determined that the conditions were bad but other 

vessels successfully made it through the canal. (Tr. 514). 

19. Although Captain Rizzo was well aware of the ice and weather conditions in the canal, 

Mate Card was not aware of those conditions because he had not listened to the Coast 

·- -- Guard 'soroadcast notice and Captain Rizzo had only informed him thatthe canal wasopen. (Tr. 4To-;4o3). 

20. Captain Rizzo and his crew were not responsible for loading the barge and the crew had no 

knowledge of the cargo's characteristics. (Tr. 34). 

21. Furthermore, none of the fittings on the barge were labeled, no PEQUECO II personnel 

were present at the dock, an infonnation sheet with the ullages to explain the cargo 

calculations was never provided to Captain Rizzo,2 

nor was he given a Material Safety Data 

_ Sheet about the cargo, and no one informed him of how many tanks were on the barge. (Tr. 

519-520). Prior to getting underway, Captain Rizzo never requested the above information 

from the office. (Tr. 634). 

22. Captain Rizzo and Mate Card inspected the barge before leaving Chester, Pennsylvania 

because they had heard that the PEQUECO II had recently undergone extensive metal 

work. Mr. Card noticed that the barge was in excellent condition, expect for the stanchions, 

which he felt were unsafe to hold any weight. (Tr. 395). He did not detect any defects or 

signs ofrustage or wastage. (Tr. 398). However, he was aware that the PEQUECO II was 

loaded differently than on the previous trip taken six weeks earlier. He observed that the 

10 
barge did not have any noticeable rake and the stern was deeper in the water than the bow. 

(Tr. 397). Mr. Card also noticed that because the PEQUECO II was loaded deeper than 

nonnal, there was approximately only one foot of freeboard, which was significantly less 

than on the previous trip. (Tr. 454). 

23. Captain Rizzo also noted the difference in the vessel's freeboard. Captain Rizzo knew that 

on the previous trip in December, the after draft was greater than the forward draft, which is 

- ideal for towing in any mode~ In -January,- however; the-barge was even keeled. -(Tr.-512). 

24-:-CaptaiiiRizzo ana-Mate Cara agreea-to arrange tlle tow so tnanne oarge woula-oe pusnecl 

ahead rather than on the hip or towed astern. (Tr. 517-518, Stipulation 10). Although this 

was the first time they had pushed the PEQUECO II in that configuration, Captain Rizzo 

believed this was the preferred method of towing. (Tr. 503). 

25. On the morning of January 30, 2000, Mr. Holly, the deckhand, noticed the barge was sitting 

considerably lower than usual. Specifically, there was only about three feet of freeboard 

above the waterline. (Tr. 84). 

26. Because the barge was heavily loaded, more water washed across the deck when pushed by 

the JOHN TURECAMO than when fonnerly towed by the barge's usual tug, the 

CYNTHIA MORAN. (Tr. 84-86). 

27. Mr. Edward D. Bishop, the engineer on the JOHN TURECAMO noticed that the amount of 

power pushing behind the barge caused the bow to bury and dip down into the water. Mr. 

Bishop observed ice wash over the bow and accumulate on the barge as it was being pushed 

through the icier areas. This, in turn, caused the bow to grow heavy and eventually cause it 

to draw more water on the deck. (Tr. 3 5 -3 6). 

2 The ullages can be used to gauge the amount of the product in the tank by measuring either the distance from the 

cargo on the top of the tank to the bottom of the tank or the distance from the bottom of the tank to the top of the 

11 
28. Around 11:30 a.m., the JOHN TURECAMO got underway with Mate Card at the wheel of 

the tug and Captain Rizzo alongside ofhim. Mate Card operated the tug from the time it 

departed the PQ corporation facility in Chester, Pennsylvania until the PEQUECO II sank. 

(Stipulation 8). 

29. Soon after leaving the pier, Captain Rizzo went to the deck of the barge to assist the 

deckhands. (Tr. 400). When Captain Rizzo returned to the tug's wheelhouse, Mr. Card 

increased the speed through the DelawareRiver to full throttle at 13 knotsandthendropped 

oacKto aoour11-:-6 or 1T:Tlrn.otr(TF.'¥OOt-snoftlytnereafter, Captam Rtzzo retirea-m-n:is 

room in order to rest before taking the second shift. Mate Card remained in the wheelhouse 

for the first watch. (Tr. 522). 

30. During the voyage, ice was encountered in the Delaware River. As a result of the barge's 

wake, ice and water washed on deck. (Tr. 401). Mr. Card did not see large chunks of ice 

strike the barge's vents or light poles. (Tr. 402). 

31. Since the ebb tide was behind it, the JOHN TURECAMO and its tow entered the canal 

from the Delaware River in a little under two hours, which is a slightly faster time than 

normal. (Tr. 403). 

32. When the JOHN TURECAMO and its tow entered the canal, there were moderate patches 

of ice in the water. (Tr. 87). The ice became denser as the vessels traveled further down the 

canal into larger bodies of water. (Tr. 87). As the JOHN TURECAMO, under the direction 

of Mate Card, pushed the barge through thicker patches of ice, specifically between 

Schaefer's and Dan's Yard, ice began to accumulate on the PEQUECO II's bow. (Tr. 87-

88). 

33. Around Chesapeake City, the water started to become solid sheets of ice. (Tr. 87-88). 

cargo. 

12 
34. Around Turkey Point, the canal was packed with solid ice. (Tr. 236). 

35. Around Reedy Point Bridge, between 1330 and 1350, the JOHN TURECAMO and its tow 

passed another tug and tow, the KARA C, operated by John N. DiFranks. (Stipulation 11). 

The vessels came within one hundred feet of each other, allowing Mr. DiFranks to observe 

the condition of the PEQUECO II. Mr. DiFranks noticed that the bow of the barge was 

submerged underwater and ice had accumulated on the deck. (Tr. 237-238). Mr. DiFranks 

also notice that water free;:. flowed overthePEQUECOII's headlog onto-the-bow, about 

twenty or tliirty feefoacK.(Tr:-23;B). 

36. Upon passing the KARA C, the JOHN TURECAMO proceeded to the Railroad Bridge at 

1406. The respondents arrived at Chesapeake City, where the canal dispatcher's office is 

located, around 1442. (Tr. 405). 

37. Mr. Allen M. Dias, the traffic controller at Chesapeake City, looked out ofhis station 

window to see the JOHN TURECAMO and the PEQUECO II pass by on January 30th. He 

noticed the barge had been loaded rather heavily and that there was more than a usual 

amount of ice on the deck. (Tr. 257). When he observed the PEQUECO Il's condition, he 

was a little concerned because the tug and barge were running against the tide. (Tr. 258). 

In addition, it was unusual to see a barge being pushed from behind, as they are usually 

pushed alongside through the canal. (Tr. 262). This was also the first time he had seen the 

PEQUECO II pass through in that configuration. (Tr. 262). 

38. After the vessels entered the canal, Mate Card noticed ice and water wash onto the barge, 

between twenty-five and thirty-five feet from the bow, and free itself off the port and 

starboard sides as they went along. (Tr. 408-09). Because the ice was washing off, Mr. 

Card did not consider the situation dangerous. 

13 
39. When the first patch of heavy ice was encountered, Mate Card noticed the canal was 

seventy-five percent covered with ice. (Tr. 419-20, Stipulation 12). Mr. Card felt that the 

tug and tow were too close to the canal bank to go around so he decreased the speed of the 

vessels. When a field of ice was encountered, which caused the vessels to slow down even 

further, Mr. Card increased the speed so the vessels could run straight and not shear to 

·either side. (Tr. 419-20). Although it was possible to decrease the speed even further, 

MateCard believed the barge-could not push through-and breakthe ice at a slower pace; 

rrr:422-:-23). 

40. After the Chesapeake City Bridge, Mate Card saw a second field of ice at Dan's Yard, 

whereupon he decreased the speed of the vessel before actually hitting the ice. (Tr. 428, 

Stipulation 13). At this point, additional ice settled on the barge's bow. (Tr. 428). When 

Mr. Card passed Dan's Yard his attempts to increase the speed were unsuccessful, as the 

barge was down by the head and lower in the water than normal. (Tr. 428, 430, 480). 

Although the barge was running at a lower speed, the same amount of water was coming on 

deck as when it was running at a higher speed earlier in the voyage. (Tr. 496). 

41. The barge's ride was sluggish and Mate Card thought the barge may have been taking on 

water. (Tr. 496). It was at this moment that he first became concerned and instructed the 

engineer to wake Captain Rizzo. (Tr. 431). 

42. When Captain Rizzo met Mate Card in the wheelhouse, he noticed that the barge was 

taking the same amount of water at her slower speed than when they were coming down the 

Delaware River. (Tr. 431). In addition to the barge's decreased freeboard and sluggish 

movement, Captain Rizzo and his crew noticed a white milky substance in the water, 

14 
seeping out near the forward rake and the No. 1 tank area on the port side. (Tr. 51, 436). 

At that point, they reduced the speed to idle ahead. 

43. Captain Rizzo and Mate Card did not want to reverse the tug and barge and back up to 

Dan's Yard for fear oftripping the vessel. (Tr. 497, 546). They did not believe there was a 

suitable place to tie up the vessels. (Tr. 465, 546). Mate Card disregarded the first clearing 

at Dan's Yard because he thought that it might be too shallow to draw enough water. (Tr. 

-4 &5); ·- However,- no body contacted Dan' sY ard to- actually determine if they could safely -

enter. rrnoo). 

44. Captain Rizzo's first objective was to clear the canal. (Tr. 548). Although it is physically 

possible to beach the barge anywhere, he believed that for safety reasons he needed to clear 

the canal first. (Tr. 546). Similarly, he did not want to stop the vessel in the middle of the 

canal, believing there was a possibility that ice could push them onto the rocks. Captain 

Rizzo felt they needed to maintain at least headway in order to control the steerageway. 

(Tr. 548). 

45. Captain Rizzo immediately contacted the Moran office on his cell phone to infonn them of 

the situation. (Tr. 432, 658). 

46. Thereafter, Captain Rizzo and Mr. Holly, the deckhand, went onto the barge to remove the 

accumulated ice and reduce the amount of weight on the bow. (Tr. 30, 529, Stipulation 16). 

Ice had accumulated on the front and side of the barge and around the forward cargo vent. 

However, Captain Rizzo did not see any ice leaning on the vent. (Tr. 525, 530). Mr. Holly 

noticed the ice had accumulated as far back on the barge as the first cargo hold and ran 

along the side, down past the rake vent. 

15 
47. The ice was approximately 18 inches thick; however, some pieces were up to three-to-four 

inches thick, and a sheet of ice up to one-to-two feet thick. (Tr. 93, 116, 530). Mr. Holly 

and Captain Rizzo chopped the ice with an axe and sledgehammer because the pieces were 

too large and heavy to pick up. (Tr. 89). Although, they managed to remove the majority 

of ice, some ice remained on the rake end. (Tr. 439). 

48. While on the deck of the barge, Captain Rizzo and Mr. Holly discovered that the ice had 

- -caused damage: Several stanchions on the port and starboard bow were tom off-and there 

were safety wires Banging inlne water. (Tr:-6J:5=-6Jo)-:--Tne stancnwns, wnicnnad-oeen 

welded to the deck, were about two inches in diameter. (Tr. 97). The effect of the 

stanchions being pushed off by ice caused the weld in the hold to come loose. (Tr. 1 01). 

Neither Mr. Holly not Captain Rizzo noticed any damage to the vent at that time. (Tr. 117-

118, 635). 

49. Captain Rizzo was never able to determine the exact location ofthe cargo leak. (Tr. l:?J124). 

50. No one attempted to sound the cargo tanks or rakes to determine the level of the tanks by 

gauging. (Tr. 39, 96). 

51. Captain Rizzo did not look into any of the cargo tanks because he was not familiar with the 

characteristics of the product sodium silicate or whether it was toxic. (Tr. 532). 

52. When Captain Rizzo returned to the JOHN TURECAMO, he telephoned the Moran office a 

second time. (Tr. 441). While Captain Rizzo was on the telephone, the barge and tow 

proceeded onward, running .at about 3.5 or 4 knots. When they got to Sandy Point, a third 

field of ice, which stretched across the canal, was encountered. From the wheelhouse, the 

engineer and Mr. Card observed a solid sheet of ice come across the barge's bow. The ice 

16 
broke around and took the starboard running light then fell on top of the running light. Two 

more sheets of ice washed on the deck and fell on top of the first piece of ice like a 

staircase. (Tr. 37, 39, 442). 

53. Captain Rizzo informed the Moran office that there was a problem with the barge and 

something had to be done immediately. Because the PEQUECO II appeared to be sinking, 

Captain Rizzo considered beaching the barge once they cleared the canal. (Tr. 659). 

-caprai11 Rizzo knew-that they could nor continue with-the worsening icEYand weatherconditions. (Tr. 659). Wliile on tlie teleplione, lie collaooratea wiUi tlie Moran office to 

determine what actions should be taken. Captain Rizzo knew, however, that the final 

decision was ultimately his. (Tr. 552-553). 

54. The Moran office informed Captain Rizzo that even with one cargo tank breached, there 

should be enough reserve buoyancy in the remaining tanks to keep the barge afloat. (Tr. 

552). 

55. The Moran Company suggested reconfiguring the tow. (Tr. 659). Although the tow could 

be reconfigured, Captain Rizzo's concerns were not abated because beaching the barge 

would not be possible if it continued to lose freeboard once it was out of the notch. (Tr. 

660). The office assured Captain Rizzo that two tugs were being immediately dispatched, 

one from Philadelphia and one from Baltimore. Whereupon, Captain Rizzo chose to tow 

the barge astern rather than beach her. (Tr. 552-553). 

56. The JOHN TURECAMO and PEQUECO II continued on to the triangle in the Old Town 

Point, the first clearing where they could reconfigure the barge. By this time, only a couple 

of inches offreeboard remained at the lowest point on the barge's bow. (Tr. 489). Captain 

Rizzo and Mate Card felt it would have been impractical and unsafe to reconfigure the 

17 
barge at an earlier point because the channel was too narrow. (Tr. 446, 559). Specifically, 

the tug, which was 100 feet long, and the barge, which was 170 feet long, totaling 270 feet 

in length. The channel was 450 feet long. (Tr. 23). 

57. it was getting late in the day and it started to get dark by the time they reconfigured the 

barge. (Tr. 58). Snow began to fall, which turned into freezing rain. (Tr. 446). 

58. After they rearranged the tow, the barge was placed on a hawser about eighty to one 

liundred feet in length. (Tt. 630): CaptainRizzo monitored-the barge from the galley-on--

the stern by lookmg tliougli a portliole. (Tr:-60o)-:-Tlie oarge appearedtol5e towing steadi1y 

with no noticeable change in the draft. (Tr. 630). 

59. Captain Rizzo's objective was to keep the barge afloat until the second tug arrived. (Tr. 

562). He estimated that it would take about three to four hours for the tugs to reach them 

and did not anticipate any help before then. (Tr. 650). Although the company informed 

Captain Rizzo that the tugs were coming from both directions; east and west, he did not 

inquire how long it would take for help to arrive. (Tr. 652-653). 

60. The ice west of the canal was about eighty-percent coverage. (Tr. 447). The barge and tow 

increased speed to about 4.5 to 5 knots. (Tr. 467). As the Respondents started towing, the 

four-to-five feet high mound of ice, which had previously accumulated on the deck, washed 

off. This appeared to have very little effect on the barge. (Tr. 43). They towed the barge 

astern for about one hour. (Tr. 121). Suddenly, the barge rolled over onto its starboard side 

and heeled. When the barge began to sink, Captain Rizzo attempted to maneuver the barge 

out of the channel so it would not interfere with the shipping traffic. (Tr. 121). They pulled 

for about fifteen minutes, until the barge disappeared and they eventually had to cut the 

line. (Tr. 667). 

18 
61. At approximately 1810 on January 30,2000, the PEQUECO II sank and settled on the 

western edge of the bottom of the Turkey Point to Old Town Point Wharf Channel. 

(Stipulation 9). 

62. The PEQUECO II was raised on March 5, 2000. (Stipulation 17). 

63. After five weeks ofbeing underwater, a joint survey was conducted on March 15, 2000 in 

the Lyons Shipyard in Norfolk, VA. Those present where Mr. Kim I. MacCartney, the 

--principal survey of for lrtamar~ a company that had been insuring the-Pequeco II· Corporation -

since the early 1980's, ana-lVIr:-WiUiam R-:--Tye, an inaepenaent surveyor nire<tto represent 

Moran Company. (Tr. 155-56, 284, Stipulation 18). 

64. The nature of damages to the PEQUECO II consisted of the following: 1) extensive 

damage to the structure on the deck; 2) the edges ofthe No.1 vent were ragged and rusted, 

which showed the vent had been impacted and ripped from the deck where it has previously 

been welded; 3) there was minimal damage to the plating and knuckle of the barge; 5) the 

only damage found below the waterline was caused by the brackets used to lift the barge; 

and 6) it was determined that there was no damage to the barge that would have impacted 

the watertight integrity below deck level. (Tr. 157-59). 

65. The damage to the vents was consistent with what the surveyors would have expected to 

find on a light-gauge metal vent that had been impacted by a heavy piece of ice. (Tr. 162-

163). The vents had been subjected to severe external forces sufficient to rip the steel and 

CCI;USe the vent to open. (Tr. 189). The evidence shows that the damage was caused by 

pushing the barge into ice and allowing the ice to roll over the headlog and down the deck 

of the barge. (Tr. 166). 

19 
66. The cost to repair the damages observed was estimated at approximately $149,790. 

(Stipulation 19). 

67. There was no measured or objective evidence of pollution by sodium silicate as a result of 

the PEQUOCO II sinking. (Stipulation 5). However, as a result of the marine casualty, oil 

was discharged from the barge's five hundred gallon deck tank, which contained 

approximately two hundred gallons of fuel oil. (Tr. 580). 

III. 

1. Respondents, Dannie K. Card and Domenic Rizzo, and the subject matter of this hearing 

are properly within the jurisdiction of the United States Coast Guard and the Administrative 

Law Judge in accordance with 46 U.S.C. §§ 6301 and 7703(1)(B) (West Supp. 2000); 46 

C.P.R. Part 5 (2000); and 33 C.P.R. Part 20 (2000). 

2. At all relevant times, respondent Domenic Rizzo was the holder of and acted under the 

authority ofhis U.S. Coast Card issued License, No. 776162 while serving as master aboard 

the tug JOHN TURECAMO. 

3. At all relevant times, respondent Dan Card was the holder of and acted under the authority 

ofhis U.S. Coast Card issued License, No. 770050 while serving as operator aboard the tug 

JOHN TURECAMO. 

4. The testimony of Mr. William R. Tye that the cargo tank vents were severely corroded 

before the barge sank, which compromised the watertight integrity of the main deck, is not 

deemed credible. The testimony of Mr. MacCartney, who surveyed the PEQUECO II for 

20 
I --

condition and valuation at least three times prior to the joint survey, is considered a more 

accurate representation of the facts. 

5. Dan Card and Domenic Rizzo were both responsible for the safe passage ofthe PEQUECO 

II, a seaworthy vessel, on January 30, 2000. In performing their duties relating to the 

vessel's navigation, the respondents failed to conform to the standard of care required of 

reasonably prudent mariners under the circumstances surrounding the voyage. Appropriate 

- action Taken byeither-respondentatnumerousdecisionpoinnnllong the voyage could-have--

reasonably prevented the barge's sinking. 

6. The Complaints of"NEGLIGENCE" against both respondents are found PROVED by a 

preponderance of the reliable and credible evidence and testimony as taken from the record 

considered as a whole. 

IV. OPINION 

The purpose of Coast Guard suspension and revocation proceedings is to promote safety 

at sea. See 46 U.S. C. § 7701 (West Supp. 2000). If it is shown that a holder has committed an 

act of negligence in perfonning his duties relating to the vessel, his license may be suspended 

or revoked. See 46 U.S.C. § 7703(1)(B) and 46 C.P.R. § 5.569. 

In suspension and revocation proceedings, the burden of proof is on the Coast Guard to 

establish a prima facie case of negligence by a preponderance of the evidence. See 46 C.P.R. § 

7703; 33 C.P.R.§ § 20.701-02 (2000); see also Appeal Decision 2485 (Yates). Negligence is 

defined in 46 C.P.R.§ 5.29 as " 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 

21 
perform an act which a reasonable and prudent person of the same station, under the same 

circumstances, would not fail to perform." In order establish negligence, the Coast Guard 

must show that the respondents' conduct, in some manner, failed to conform to the standard of 

care required of reasonably prudent mariners under the same circumstance. See Appeal 

Decision 2321 (Harris); see also Appeal Decision 2282 (Littlefield). 

Here, the Coast Guard has established that both respondents committed acts of 

negligence on January 30, 2000, which-resulted inthesinkingofthe-bargePEQUECO·ILlVlore specifically, responaent Cara-is negligentoecause ne allowecnce to accumulate on tile 

deck of the barge and water to wash on to the bow, which ultimately flooded the cargo vents, 

and he did not promptly notify respondent Rizzo of the existing barge and weather conditions. 

Likewise, respondent Rizzo is negligent because after he was notified of the deteriorating 

conditions ofthe barge, he decided to rearrange the tow and continue the voyage to Baltimore 

and he failed to initiate a reasonable emergency response, such as beaching the barge, pumping 

the tanks, or reversing the vessel to the nearest port. The actions of both respondents failed to 

confonn to the standard of care exercised by reasonably prudent mariners of the same station 

under the same circumstances. Because of the respondents' failure to navigate the vessel 

JOHN TURECAMO and its tow with due caution, the barge PEQUECO II sank at 1810 on 

January 30, 2000 and settled on the western edge bottom of the Turkey Point to Old Town 

Point Wharf Channel. 

In defense of their actions taken on January 30, 2000, the respondents raise the 

following arguments, which will all be addressed in further detail. The respondents argue that: 

I) They operated the vessel with the amount of skill and care required under the 

special circumstances; 

22 
II) They were unaware that the PEQUECO II was unseaworthy and the corroded 

state of the barge's tank vents compromised the watertight integrity of the main 

deck; thus, allowing the forward cargo rake to flood, which decreased the 

freeboard and ultimately caused the barge to sink; 

III) Based on the legal presumption of seaworthiness, Captain Rizzo had no reason 

to refuse the tow; 

· IV} · Pushing the barge-ahead was th-e ·safest course; - -

-J--Mate Cara committea neitlier negligence nor an error injuagmenCiifllis care 

and navigation of the barge; 

VI) Captain Rizzo's decision to continue the voyage was prudent; and 

VII) The Coast Guard's involvement in the casualty was significant. 

For the reasons stated herein, all of the respondents' arguments are rejected. 

I The Respondents were Entrusted with the Vessel's Safety and were Required to 

Perform Their Duties with the Reasonable Care and Skill Necessary for the Given 

Situation 

It is well-established law that the operator of a vessel is the person in command and, 

therefore, has the responsibility to ensure the safety of the vessel and its crew. See, Appeal 

Decision 2293 (SMITH & RUBY); see also, Appeal Decision 2321 (HARRIS). In order to 

ensure proper management and safety of the vessel and its crew, the operator is required to be 

aware of any serious defects in the vessel and to keep himself well informed of any hazardous 

conditions that may pose a significant danger to life or property. See (HARRIS). In addition, 

an operator is under a continuing duty to know where his vessel is at all times, and he should be 

in possession of all other pertinent facts relating to the voyage. See Appeal Decision 2416 

23 
(MOORE). Specifically, an operator is responsible for knowing how the tug and barge will 

cope with any particular set of navigational conditions considering its horsepower, handling, 

his own experience, and the size and configuration of the barge. See Appeal Decision 2367 

(SPENCER). 

In this case, Captain Rizzo and Mate Card were both responsible for knowing the 

characteristics of the PEQUECO II, as well as those of the canal. Therefore, they each had an 

--independenrduty to-insp·e·cnhe b-arge and keep~itunder dose-supervision during the towing~­

operations. See AipieTowillgY.LYNNEE-:--QDTNN~534-F~Supp. zro9~4-n-(n:-c:-nrl982). 

Likewise, both respondents had an independent obligation to monitor the available weather 

reports in order to operate the vessels in a manner consistent with the foreseeable risks and both 

respondents are chargeable with knowledge of the weather forecasts, regardless of whether they 

were aware of the weather conditions. See Aiple Towing v. LYNNE E. QUINN, 534 F. Supp. 

at 411. 

Although the influence of a senior official within a mariner's company may place that 

mariner in a difficult situation, it is the licensed mariner who must make situational decisions as 

to safety of the vessel and its crew on the water. Therefore, orders from an employer will not 

excuse the negligent operation of a vessel. See (SPENCER); see also Appeal Decision 2325 

(PAYNE). By the same token, reliance on an employer's assurances concerning operation of a 

vessel will not excuse a licensed mariner from the ultimate responsibility for the safe 

navigation of the vessel, including the mariner's duty to make a reasonable effort to become 

aware of any deficiencies in the vessel or to discover other potential hazards. See (SPENCER); 

see also (PAYNE). 

24 
Finally, the undersigned recognizes that, even with the proper navigation and towing of 

a vessel, known risks are involved. Therefore, when faced with navigational challenges, such 

as preventing the barge from overtaking and "tripping the tug when reversing or towing 

astern," the respondents in this case were obligated to perform their duties with such reasonable 

care and maritime skill as prudent mariners usually employ in similar undertakings and with 

such consideration as the special circumstances required. See Curtis Bay Towing Co. ofVa. v. 

SouthernTighterage-corp.,-200 F.2d 33, 35-(4th Cir1952);-Hartv.-Blakemore,-410 F.2d 218, 

221 (5th Cir. 1969); McDermott Inc. v. Amclyde,-T9-nA.rvr:-c-:--692~7DT;T99o-wc-875074 

(B.D. La 1996). 

II PEQUECO II was a Seaworthy Vessel to the Degree that Any Corrosion Found on the 

Vents Did Not Jeopardize the Watertight Integrity of the Barge 

In the instant case, the respondents argue that the forward tank vents on the PEQUECO 

II were severely wasted where welded to the deck, and this weakening and corrosion was not 

visible on the day of the voyage as the vents were recently painted. Respondents' expert 

witness, Mr. Tye, an independent marine surveyor, testified that corrosion of the tank vents 

seriously deteriorated the watertight integrity of the main deck. According to Mr. Tye, the 

PEQUECO II sank as a result ofthe combination of severe ice conditions, ice coming on the 

deck, and the deterioration of the vents, which sheared when struck by ice. Mr. Tye's opinion 

that the wasted conditions existed before the barge sank was based on the vast amount of 

corrosion found on the forward tank vents during a joint survey conducted by PQ Corporation 

and Moran Towing, approximately five weeks after the barge san1c. 

Captain Rizzo and Mate Card both had an opportunity to inspect the PEQUECO II on 

two separate occasions prior to the sinking of the barge. The first occasion was during towing 

25 
operations using the JOHN TURECAMO in December 1999. The second occasion was on 

January 30, 2000, approximately six weeks later, on the morning of the voyage in question. 

The respondents argue that they acted reasonably in inspecting the PEQUECO II during those 

two separate occasions, but they did not notice any defects. The respondents contend that, 

based on applicable case law, competent mariners in their position are not responsible for latent 

defects in the barge and competent mariners could reasonably presume that the barge was in a 

-- --sufficienntateoftepainn-make the intended trip~- See-Ingram·Ind.-v: EagleTowing;-1986--

AlVIC-r4T4~rzrr8-(S~rr:-A.ra:-T9K5);IVIassman v. SiouxCily&-NewOrleansBarge,-4-6TF. 

Supp. 1362, 1369 (W.D. Mo. 1979); see also, A.S. Wikstrom v. Julia C. Moran, 190 F. Supp. 

250,251 (S.D.N.Y. 1960). 

Respondents are correct in their position that competent mariners may reasonably 

presume a barge is in a sufficient state of repair to make the intended trip. Indeed, a tugboat 

master/operator is not responsible for latent defects in the tendered barge. See Massman, supra; 

and A.S. Wikstrom, supra. However, the evidence introduced at this hearing does not indicate 

that the PEQUECO II was anything less than a seaworthy vessel on the day it sanlc. Moreover, 

even though the respondents may have acted reasonably in inspecting the PEQUECO II for 

defects prior to the voyage at issue, caution and preparation exercised by an operator before a 

voyage does not absolve the operator from liability resulting from negligent operation and 

navigation of a vessel once underway. 

The evidence in this case shows that the respondents were aware that the PEQUECO II 

had recently undergone extensive metal work just prior to the January 30, 2000 voyage. As a 

matter of fact, the respondents commented about the barge's vast improvements following the 

repairs. Mr. Card even testified at the hearing that the barge was "in beautiful condition" with 

26 
the exception of the stanchions, which he felt were unsafe to hold any weight. (Tr. 395). He 

further stated that he did not notice any defects or signs of rustage or wastage. (Tr. 398). Mr. 

MacCartney, the principal surveyor of the PEQUECO II, provided additional information 

concerning the barge's condition prior to the incident. Mr. MacCartney surveyed the vessel for 

condition and valuation at least three times prior to March 15, while the barge was dry-docked 

at Lyons Shipyard in Norfolk, Virginia after being raised.- In Mr. MacCartney's expert opinion, 

· ·the ba:tge was extremely well maintained. 

Suggestions tliat tlie PEQDECUli was unseawortliy at tlie time of1lie voyage stem only 

from the testimony of respondents' expert witness, Mr. Tye. However, given the discrepancies 

in Mr. Tye's report and his admitted unfamiliarity with the barge, his opinion is viewed as 

inaccurate and unreliable. First, Mr. Tye testified that water in the forward rake 'ht some point 

in time" was one factor, which contributed to the sinking of the barge. (Respondents' Exhibit 

3, pg. 9). This conclusion was solely based on his observation of a water level tidemark stain 

on the bulkheads inside the forward rake. Mr. Tye also admitted that the water level tidemark 

stain could have existed prior to the voyage. (Tr. 290, 327-328). Based on Mr. Tye's 

testimony, it is unclear whether he believed that the rake contained water prior to the voyage 

and thus reduced the vessel's buoyancy, or whether he simply meant to imply that, on the day 

of the voyage, water flooded the vent, thus contributing to the casualty. 

Second, Mr. Tye testified at the hearing that the tank vents were severely corroded and 

wasted before the casualty occurred, but he failed to document this in the survey report. ( Tr. 

285). According to Mr. Tye, this issue was discussed with the Moran Company and the parties 

agreed to remove and repair the vents. (Tr. 286-287). However, assuming that a discussion 

about the preexisting corrosion of the tank vents occurred, it seems implausible that no 

27 
indication of the preexisting condition was ever noted in the survey report. At the very least, 

Mr. Tye had a responsibility to his client to make a written notation somewhere in the survey 

report that the vents, which were to be repaired, had been corroded prior to the marine incident. 

In addition, Mr. Tye's opinion as to the cause, nature, and extent of damage to the 

PEQUECO II was based solely on his observations of the barge after its exposure to the canal's 

environment for five weeks. In his report, Mr. Tye listed several items that he needed in order 

- - -to ascertain thecause ofthe incidertcan:d fendet-opiftioruf.(Respondents 'Exhibit 3, pg. 12). 

However, on cross-examination, Mr. Tye testrfied that he never determmedvffill-facts, sucli as 

the departure drafts or speed of the tow, and he never interviewed any of the crewmembers. 

(Tr. 319). Because Mr. Tye's expert opinion was rendered without this vital information, his 

conclusions as to the ultimate causes. of damage are of little weight. 

At the hearing, Mr. Tye reviewed photographs of the PEQUECO II and described the 

wasted condition of the lower part of the No. 1 cargo tank vent pipe as razor blade thin. He 

further stated that the original metal of the tank vent was gone. (Tr. 281-82). Because the vent 

was severely corroded, Mr. Tye believed that the wasted condition existed before the barge 

sank. However, this conclusion is incorrect as it is based on the amount of material left after 

the barge remained underwater for five weeks. Mr. Tye admitted that he did not know how 

thick the metal was in its original state but speculated that the original thickness of the vent was 

5/16" (0.3125"). Mr. Tye also admitted that he had no knowledge of the barge prior to the 

survey, nor had he ever seen the·PEQUECO II in its original condition. (Tr. 319, 334-35). 

Accordingly, Mr. Tye's conclusions as to the original thickness of the material and the vent's 

condition before the casualty are viewed as mere conjecture and speculation when viewed in 

the light of additional information provided by more informed and reliable sources. 

28 
The testimony of the Coast Guard's expert witness, Mr. MacCartney, is more credible. 

According to Mr. MacCartney, the thickness of the vents on a barge like the PEQUECO II 

should actually be 14 gauge galvanized (or .0747"). (Tr. 191). Although, there are no Coast 

Guard standards for the construction and maintenance of vents on inland uninspected barges, 

such as the PEQUECO II, metal with a thickness of 14 gauge is in line with common good 

marine practice. (Tr. 161, 190). Moreover, 14 gauge is consistent with the vents' intended 

- purpose:- Me MacCartney explained that vents are only thereto allowairto-comein;airto go -

out, ancttokeep fne ram ofrtne cargo, as well as tile normal splash of sea water, whfuhlira:y 

wash over the barge during normal operation. (Tr. 162). 

Mr. MacCartney further described the condition of the vents as he observed them on 

March 15th during the joint survey. Specifically, the edges of the No 1 cargo vents were ragged 

and rusted, evidencing that the vents had been impacted and ripped from the deck where it was 

previously welded. According to Mr. MacCartney, the damage was consistent with what one 

would have expected to find on a light-gauge metal vent, which had been impacted by a heavy 

piece of ice. (Tr. 162-63). The damage was not consistent with damage resulting from the 

salvage operation or the flow of water over the deck. (Tr. 164). In his expert opinion, Mr. 

MacCartney stated that the damage was caused by pushing the barge into ice and the ice rolling 

over the headlog and down the barge's deck. (Tr. 166). This opinion was supported by the fact 

that the vents had been subjected to severe external forces sufficient to rip the steel and cause 

the vents to open. (Tr. 189). 

It is undisputed that damage to the cargo tank vents allowed water to enter the rake and 

ultimately caused the PEQUECO II to sink. Respondents' own expert, Mr. Tye, testified that 

there were no holes in the body ofthe barge and that the vessel san1( as a result of water 

29 
washing over the deck and invading the forward rake tank. (Tr. 332). Mr. Card and Mr. Rizzo 

. also agree that the PEQUECO II sank because the damaged vents allowed water to enter into 

the cargo compartment. (Tr. 495, 657). The parties also agree that the PEQUECO II would not 

have sunk, had it not been for the ice. (Tr. 166, 331, 495, 657). This evidence establishes that 

the casualty did not occur because of an unseaworthy vessel, but rather, was the result of 

pushing the PEQUECO II into ice and allowing the ice to roll up over the headlog and down 

the-barge's-deck.-(Tr. 166). 

III. Captain Rizzo had Sufficient Reason to Refuse the Tow on the Morning of the Voyage 

The Respondents' argument that they had no barge-related reason to refuse the tow is 

untenable. In support of their argument, Captain Rizzo contends that he had no frame of 

reference or other experience with the PEQUECO II, which would indicate that the barge was 

loaded in an improper or unseaworthy fashion. According to the respondents, the barge was 

loaded essentially as it had been during the December 1999 trip. Since the PEQUECO II is an 

"uninspected" barge, there was no "load line" to indicate a maximum safe load or draft. 

Furthermore, the respondents were not provided any documentation containing relevant 

information about the barge or its cargo, nor is this material typically given to tug captains. 

However, Captain Rizzo argues that he acted as a prudent mariner by consulting every 

available source in ascertaining whether the assigned trip was reasonably safe given the 

reported ice conditions. The respondents further argue that when a reasonable mariner learns 

that the waters to be transited are legally, practically, and physically open, they have no reason 

not to proceed with the voyage. 

Captain Rizzo's contention that there was no frame of reference or indication that the 

barge was loaded in an improper or unseaworthy fashion is incorrect. The respondents' 

30 
assertion that the barge was loaded essentially as it had been during the December 1999 trip is 

in direct contradiction with their testimony where they described the barge's diminished 

freeboard. More specifically, Mate Card testified that on the morning ofthe January 30, 2000 

voyage, he noticed that the PEQUECO II was loaded differently. The barge was carrying a 

heavier load than usual and there was approximately one foot of freeboard visible, which was 

significantly less than the previous trip where the freeboard was set between three to five feet. 

·- -(Tf. '154r-Tlie barge also.did norhave anoticeablerake;wh~rebythe stern-was-deeper in the 

water tlian tlie l:Jow. (Tr:-3317)-:--CaptainR:izzo also noticeallieclifference inllie ffeeooard. 

Captain Rizzo testified that on the previous trip in December, the after draft was greater than 

the forward draft, which is ideal for towing in any mode. In January, however, the barge was 

even keeled. (Tr. 511-12). The record does not indicate that any previous trip involved 

pushing a barge with approximately one foot of freeboard through an area forecasted to have a 

minimum of one foot of ice. Therefore, Respondents' argument that the voyage in question 

was identical to the December 1999 trip is rejected. The undersigned finds that the limited 

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

reason enough to refuse the tow, or at least consider an alternate towing configuration to 

pushing ahead (e.g. towing astern with an assisting tug to prevent "tripping"). 

In addition, Captain Rizzo's assertion that no documentation containing relevant 

information about the barge or its cargo was provided is unsubstantiated and does not relieve 

him of a duty to know such pertinent facts. Although information concerning the barge or its 

cargo is typically not given to tug captains, the evidence shows that Captain Rizzo never even 

attempted to ascertain such information from his employer before undertaking the voyage. (Tr. 

634). Instead, Captain Rizzo relied on the assurances of his employer, who told him that it was 

31 
not his duty to be familiar with the barge's characteristics and loading conditions. (Tr. 616-17). 

In hindsight, 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. (Tr. 625). To proceed without this information 

or any effort to attain it prior to getting underway was negligent. 

Moreover, Captain Rizzo's position that he consulted every available source in 

· - ascertaining\vlietlier tlie--assigne<ftripwas reasonablysafegivernherepottea ice conditions is 

inaccurate. Captain Rizzo asserts tn:at, in aaoifion to listening to tlie Broaacast NOfice to 

Mariners, he consulted the three "live" and most current sources of information available to 

him concerning ice. These sources included the Moran dispatcher, the canal dispatcher and 

those inland vessel captains who had just completed the eastbound canal transit. According to 

Captain Rizzo, none of these sources gave him a reason not to proceed. In actuality, Captain 

Rizzo's attempt to ascertain the severity of the ice conditions is inadequate, and contrary to his 

assertion, the sources he did consult provided him sufficient reason not to commence the 

voyage. 

By listening to the Coast Guard Broadcast Notice to Mariners, Captain Rizzo became 

aware of the severe ice conditions, up to twelve inches thick and up to 90 percent coverage, in 

the northern bay, all the way down to Baltimore. In his conversation with the Moran office, 

Captain Rizzo also learned that a 2400-horsepower restriction had been imposed on vessels 

transiting the canal. With the information obtained from these two sources, Captain Rizzo 

should have been concerned about the vessel's horsepower, the extreme ice conditions, and the 

barge's cargo and its loading conditions. However, Captain Rizzo disregarded these concerns 

because he believed it was not a part of his duty. 

32 
Captain Rizzo also contacted the canal dispatcher to relieve any doubts regarding the 

horsepower restriction. (Tr. 513). In this conversation, Captain Rizzo learned that although 

the canal was open, the ice conditions were heavier towards the western end; thus, confirming 

the Broadcast Notice to Mariners' report. In support of the decision to proceed with the 

voyage, Respondents argue that when reasonable mariners learn the waters to be transited are 

legally and physically open, they have no reason not to proceed with the voyage. This 

· assui1lption is incorrect and unsound: -AlthouglrCaptaitrRizzo believes that the dispatcher-will 

close the canal if he determmes tlie conditions are impassiole(Tr.D4o)~liis proceoure, lilretlie 

Coast Guard-imposed restrictions, is not a guarantee of transit safety. It is the professional 

mariners who must make situational decisions as to safety on the water. These decisions 

include, among other considerations, towing configurations and speed, which are uniquely 

within the mariner's purview. 

Captain Rizzo's final inquiry about the canal's condition was to inland vessel captains 

who had recently transited the canal. The accounts from these mariners, however, are 

unreliable. First, while Captain Rizzo testified that he spoke directly to the captain of the tug, 

TENACIOUS, he is uncertain whether the captain of the TENACIOUS had been through the 

canal the previous day or on the morning of the incident in question. (Tr. 514, 603). Second, 

Captain Rizzo's conversation with a mariner who had only completed the eastern half of the 

canal approximately five to ten hours before Captain Rizzo's voyage (Tr. 598-599) is 

insufficient. According to all reported sources, the severity of ice conditions began at the 

western end. Therefore, the reports from the TENACIOUS and the unidentified captain who 

had only completed the eastern half of the canal could not have provided the respondents with 

an accurate account of the most recent weather and ice conditions to be expected. This is 

33 
especially true in light of the fact that the severity of the ice conditions changed for the worse 

with each passing hour. 

Finally, Captain Rizzo failed to inquire about the towing configurations or loading 

conditions of the vessels he contacted. As such, he did not know whether they faced the same 

challenges under the exact or similar combination of horsepower, barge construction, towing 

method, freeboard, and product characteristics. Regardless, the custom of operators who transit 

·· -tlitfate-a-u!fder sifuilar circufustarrcesaoe-s -riot provide-evidence of reasonable care-ami will-not 

serve to justify the neghgence of another mariner accountalJTein a suspension ana revocation 

proceeding. See Appeal Decision 2416 (MOORE). Accordingly, the fact that other vessels 

may have transited through the ice in the Chesapeake and Delaware Canal without incident 

cannot excuse the actions of the respondents in this case. 

IV. The Tug and Tow were in an Improper Towing Configuration 

Captain Rizzo and Mate Card mutually agreed to place the PEQUECO II in a pushing 

configuration because both men believed that this was the best arrangement for the expected ice 

and weather conditions. It is important to note the difference between a tow that is properly · 

made up under normal conditions and the level of care that is required when faced with the 

special circumstances encountered by the respondents on the day of the voyage in question. In 

this case, severe ice and harsh weather was reported and the barge was heavily loaded with a 

diminished freeboard. Therefore, in the case at hand, the respondents' use of an uninspected 

barge with minimal design and manufacturing standards as a de facto icebreaker for the tug 

was, in itself, negligent. Although the tow itself was properly made up before undertaking the 

voyage, negligence has been found in cases where a barge is pushed through heavy ice, rather 

than "towing astern." See Consolidated Grain & Barge Co., Inc. v. Consolidated Towing Co., 

34 
404 F. Supp. 634 (D.C. Mo 1975); see also, Conners-Standard Marine Corp. v. Oil Transfer 

Corp., 120 F. Supp. 180 (E.D.N.Y. 1953). Here, by pushing the tow, sheets of ice were 

allowed to wash across the bow and cause extensive damage to the barge. This was a breach of 

the respondent's duty of care as prudent mariners. 

While respondents argue that the best arrangement for the PEQUECO II was a push 

gear configuration, the custom and practice of tug operators and the towing history of this 

· -- - ----------barge; irrdicate-tlfe-opp-crsite~--Tht:rCoast-ouard's -e-xp-ert-witness,- Mr.--Fredrick--Christian Berg;-a 

I tugooat operator of twenty years, testifie<ltliarit was not pru<lenCfor a mariner to get underway 

with a tow pushing a barge, given the predicted ice and weather conditions because it was too 

much power for such a little barge. (Tr. 204). Although Mr. Berg indicated that when towing a 

barge in ice it is possible for the momentum of a loaded barge to overtake and literally ride up 

on the tug (Tr. 216-17, 221), and Mr. Berg admitted that he would have pushed the barge 

through the thicker ice, as respondents did on January 30, 2000 --he stressed that he would not 

have proceeded to Baltimore if he noticed the bow was dipping and the barge was losing 

clearance. (Tr. 229-230). 

In addition, the traffic controller at Chesapeake City, who had witnessed thousands of 

tugs and commercial vessels travel in and out of the canal, testified that barges are usually 

pushed when they are heavily loaded. However, he did not specify whether the barges are 

pushed from behind or alongside. This distinction is crucial as the dispatcher noted earlier in 

his testimony that it was unusual to see the PEQUECO II pass through in a push gear 

configuration. In fact, he stated that this was the first time he had ever known it to travel 

through the canal like that, as it was always arranged alongside. (Tr. 262). 

35 
As a matter of fact, the deckhand, Vance Holly, made a previous trip, towing the 

PEQUECO II on the hip through the canal and successfully made it to Baltimore despite harsh 

weather and thick ice. On the return trip, the barge was put on a hawser and towed astern so 

the tugboat could break the ice. Despite a brief setback where the vessels were stuck in ice, the 

tug and tow ultimately completed the transit without sinking and without damage. 

V. Mate Card Failed to Operate the Tug and Tow with Reasonable Skill 

and Navigation 

The respondents argue that Mate Card acted in an appropriate manner on January 30, 

2000, while transiting the Chesapeake and Delaware Canal, and his operation and navigation of 

the vessels constitute neither negligence nor an error in judgment. The respondents 

characterize the events that occurred during Mate Card's watch as uneventful. The respondents 

assert that when Mate Card turned into the canal to proceed westbound, there was light to 

moderate ice, as expected. Respondents further claim that the amount of water and ice that 

washed over the deck was not uncommon on a fully loaded barge and the vents were expected 

to withstand it. According to the respondents, Mate Card proceeded westbound in the canal 

with appropriate speed and course, and he did not observe any accumulation of ice around the 

vents or resulting damage. The respondents believe that stopping in the middle of the canal 

when there was no detection of a hazardous condition would have been inappropriate and 

unwise. The respondents claim that the problems with the barge did not occur until after they 

encountered the second patch of heavy ice, at which time, Captain Rizzo was immediately 

notified. 

The respondents' claims are inconsistent with the preponderance of evidence contained 

in the record that supports a finding of negligence. First, to support their position, respondents 

36 
point to witness and expert testimony throughout the record, which indicates that water and ice 

are expected on deck. However, it is important to distinguish between the expected bow wash 

and ice buildup that occur during the normal course of towing a barge with adequate freeboard 

and the vast amount of water and ice that was allowed to accumulate on the deck in this case. 

In severe weather conditions, water that washes over the deck may freeze to the bow of the 

vessel and accumulate over time. In turn, the added weight and the free surface of moving 

· -· water· have a detrimental-effect on the vessel's stability: Therefore, a prudent mariner must·· 

carefully mom tor tnis conattwn. 

In this case, the barge's minimal freeboard allowed water and ice to come across the 

bow and accumulate to such a degree as to create concern in the minds of a passing mariner and 

the canal operator. Once in the canal, the JOHN TURECAMO passed another barge and tow, 

the IZARA C, operated by John N. DiFranks, who testified for the Coast Guard at the hearing. 

According to Mr. DiFranks, the vessels came within one hundred feet of each other. Mr. 

DiP ranks recalled that water was running over the bow of the PEQUECO II and ice had 

accumulated on the deck. (Tr. 237). Mr. DiFranks described the water as free-flowing over 

the barge's headlog to the bow, about twenty or thirty feet back. He observed that the bow was 

underwater. (Tr. 238). The canal dispatcher at Chesapeake City described the condition of the 

PEQUECO II on January 30, 2000 in a similar fashion. The canal dispatcher testified that the 

PEQUECO II was heavily loaded and there was more than the usual amount of ice on the deck. 

(Tr. 257, 270). This testimony directly refutes respondents' assertion that Mate Card did not 

observe an unusual amount of water and ice accumulation on the bow. As such, the transit 

down the bay to the canal cannot be considered as uneventful. Mate Card should have 

observed this accumulation of ice and he should have recognized the risks associated with 

37 
allowing ice to accumulate on deck. Prudent action would have included, at a minimum, 

reassessing the risk of proceeding to push the barge, already laden with an unusual amount of 

ice on the bow, into known heavier ice conditions. 

Moreover, the undersigned is not convinced that at the time of the first ice encountered 

at Chesapeake City, no problems or noticeable change in trim had been observed to justify 

Mate Card's lack of concern. The record indicates that as early as the entrance into the eastern 

-side of the-canal, the amount of ice buildup and-level-of freeboard had reached an alarming and--

excessive rate. .At approxunatelyt330, wnen tne tug ana-tow passed-the I~AR1\-e;-t1Te-b-zy 

was awashed and ice had accumulated on the deck. Mate Card proceeded to operate the vessels 

into Chesapeake City, where the canal dispatcher noted their arrival at approximately 1440. As 

the respondents continued to transit down the canal, the tug and tow encountered two separate 

incidents where heavy sheets of ice washed onto the deck, the latter causing noticeable damage. 

At this point in time, well over an hour later, Mate Card notified Captain Rizzo of the situation. 

A reasonable and prudent mariner placed in a similar situation, as Mate Card would have 

slowed down and notified the captain as soon as water and ice began to wash over the headlog 

and free flow across the deck. 

Next, the nature and design of the deck vents are inconsistent with respondents' 

expectation as to their perfonnance. The vents were not designed to withstand the excessive 

amount of water and ice encountered during the transit in question. Rather, they are intended 

only to keep rainwater and spray out, while allowing air to freely flow in and out of the cargo 

tanks. Given the purpose and construction of these vents, any action or inaction in the course 

of navigation that permitted ice to damage these vents, thereby allowing water to flood the 

forward rake and ultimately cause the PEQUECO II to sink, is negligent. 

38 
Mr. Card's actions and negligent operation of the PEQUECO II created a reasonably 

foreseeable situation and, therefore, cannot be considered simply an error in judgment. An 

error in judgment arises and a person is not considered negligent when the individual is placed 

in a position not of his own making where he must decide between two apparently reasonable 

alternatives and chooses an alternative using prudent judgment at the time that later proves to 

be a poor choice under the circumstances. See Appeal Decision 2366 (MONAGHAN). In this 

-case; however, Mr; Card placed himself-in a position-ofhis own making through a series of 

conscious decisions regarding tl'I:emamrerin--wlrich-th-e-PE~tmee-n-was-rravigated-through------­

severe ice conditions. 

VI. Captain Rizzo's Decision to Continue the Voyage After Assessing the Nature of the 

Barge's Condition was Negligent 

Respondents argue that Captain Rizzo's decision to continue the voyage after being 

notified of the situation was prudent based on the information provided him. Respondents 

further contend that this decision should be viewed in light of the facts available to Captain 

Rizzo on the day in question. However, an evaluation of Captain Rizzo's decisions and 

actions pertaining to the incident cannot be based solely on this factor 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. Such information includes, among other things, the characteristics 

of the product aboard the PEQUECO II, its loading condition, and any serious defects in the 

barge. 

Respondents argue that Captain Rizzo complied with the requirement to keep himself 

informed by inspecting the barge on three separate occasions, including the time he and the 

deckhand went aboard the vessel's bow after product was seen leaking into the water. 

39 
Respondents assert that after each of these inspections, no problems with th~ watertight 

integrity of the deck were observed. According to the respondents, significant damage was 

noticed for the first time only after they encountered the third patch of heavy ice at Sandy 

Point, near the western end of the canal. However, the record of this case viewed as a whole, 

as well as the testimony of both respondents describing the extent of damages, reveals an 

awareness of the barge's deteriorating state well before the third encounter of heavy ice. 

·····--··Testimony at-the hearing indicatesthatbothrespondents·observedthesame amount of · 

water was washing over the deck at a slower speed-througlrtlre-camri-tlran-wh-en-tlrey-were 

coming down the Delaware River. (Tr. 431, 496). In addition to the barge's decreased 

freeboard and sluggish movement, Captain Rizzo and his crew noticed a white milky substance 

in the water, seeping out near the forward rake on the port side. (Tr. 51, 431, 565). Thereafter, 

they reduced the speed to idle ahead, while Captain Rizzo and the deckhand went onto the 

barge to remove pieces of ice up to 18 inches thick and to assess the situation. Considerable 

damage to the vessel's deck was observed at this point, including holes in the deck, 

approximately two inches in diameter, where several stanchions had been tom off by ice and 

safety wires hanging in the water. (Tr. 635-636). 

Expert 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. Mr. Fredrick 

Christian Berg, a tugboat operator of twenty years, testified at the hearing for the Coast Guard 

and stressed that a change in the freeboard, causing it to get closer to the water, becomes a 

matter of life and death. Mr. Berg listed several emergency actions that could have been 

perfonned by Captain Rizzo in lieu of traversing another 45 miles through the thickening ice. 

40 
Among them included finding a port or beaching the vessel to keep it from sinking. (Tr. 206-

207). 

Similarly, the undersigned is not convinced that there was no immediate danger of the 

barge sinking or that the only viable option was to clear the canal and reconfigure the tow. 

First, Captain Rizzo's own testimony demonstrates that the respondents were in fact concerned 

that the barge appeared to be sinking. (Tr. 658-59). Specifically, Captain Rizzo informed the 

Moran office-tliartlievoyageccmld rror-cont:i:nue-with the worsening-ice and weather - -- - -- --

conditions, as tliere was a proolem wiUillie oarge, and furtner stressed-mat sometnmg l:iacttoo"'e _____ _ 

done immediately. (Tr. 658). The first clearing at Dan's Yard was disregarded because 

respondents believed the port might be too shallow to draw enough water and serve as a 

suitable place to tie up the vessel. (Tr. 464-65, 546). However, the record indicates that 

nobody contacted, or even attempted to contact, Dan's Yard to actually determine ifthey could 

safely enter. 

Further, Captain Rizzo's conversations with his company, as documented throughout 

the record, clearly contributed to his decision to continue the voyage toward Baltimore. First, it 

appears that Captain Rizzo blindly relied on his company's assurances that the barge would 

continue to float with one tank breached. Although the respondents believed the hull had been 

breached, they did not undertake any action to ascertain the gravity of the situation. No one 

attempted to sound the forward rakes in order to detennine the level of the tanks by gauging. 

Similarly, Captain Rizzo purposely chose not to look inside the cargo tank, stating that he was 

unfamiliar with the characteristics of the product sodium silicate or whether it was toxic. (Tr. 

32). Captain Rizzo made no attempt to alleviate this concern by inquiring about the product 

characteristics in any ofhis numerous phone conversations with the company. 

41 
The record further indicates that pressure from the employer influenced Captain Rizzo's 

decision to reconfigure the tow once the vessels cleared the canal. According to Captain 

Rizzo's testimony the Moran office did not want him to beach the barge and suggested the 

vessels be rearranged instead. (Tr. 658, 659). Captain Rizzo further stated that although the 

tow could be reconfigured, his concerns were not abated because it would be impossible to 

beach the barge once it was out of the notch if it continued to lose freeboard. (Tr. 660). In 

--addition; although Captain Riz-zo wasnotifiedlhanwcnagswer{foeing-immediately -

dispatched~is assurance slioula not fi.ave fieen utilizea-in aeciaing wlietlier to tow tlie fiarge 

astern, especially since Captain Rizzo had no indication of how long it would take for 

assistance to arrive. (Tr. 652-53). 

Finally, the new arrangement placed the damaged bow of the sinking barge 

approximately 250 feet behind the tug, without proper supervision. By the time the tow was 

rearranged and placed on a hawser, the bow of the barge was submerged and no freeboard 

remained. (Tr. 665). The limited visibility was further hindered by darkness and snow that 

soon turned into freezing rain. Captain Rizzo claims to have been monitoring the barge from 

the galley on the stem by looking through a porthole. (Tr. 666). Although, Captain Rizzo 

alleges the barge stabilized fifteen to thirty minutes after the tow was reconfigured, a proper 

lookout could not possibly have been maintained given the stated impediments. 

VII. The Coast Guard's Passive Involvement is not a Factor in Assessing the 

Blameworthiness oflndividuals Placed in a Situation of Their Own Making 

Although the respondents do not contend that the Coast Guard caused the casualty, the 

respondents argue that the agency's involvement was more than passive and must be 

considered in assessing the blameworthiness of individuals placed in a situation not of their 

42 
own making. The respondents further contend that they acted in a manner consistent with the 

Coast Guard's own participation. Specifically, the Coast Guard did not require a safe minimum 

freeboard, or load line, upon which operators of a towing vessel could rely, nor did the agency 

require an inspection of certain appurtenances, like vents, which respondents believe are 

essential to the vessel's watertight integrity. The PEQUECO II is not certified by the U.S. 

Coast Guard, as it is an uninspected barge to be operated only on inland routes. However, even 

-- ---- - witfioursuch-standards-the fespondentsol5servea -tlie-diminisnea freeooara ofapproximately ---

one foot, which was significantly less than the freeboard visible on tlie Decemoer 1999 trip. 

Although the Coast Guard did not require a minimum load line for this uninspected barge, the 

respondents could reasonably determine that the vessel was heavily loaded before getting 

underway. Likewise, the Coast Guard does not require an inspection of the vents as they are 

not a struCtural part of the barge and are only there to ventilate the cargo rake and to and keep 

rain water out. 

Respondents also argue that the Coast Guard declared the canal open for vessels with a 

minimum horsepower of 2400, and, therefore, respondents' employment of a towing vessel 

rated at 3000 horsepower was consistent with the agency's involvement. Respondents, 

however, inappropriately rely on this restriction and cannot reasonably expect that their 

compliance would ensure a successful passage. The Coast Guard-imposed restriction is not an 

absolution of transit safety. 

Respondents further assert that the Coast Guard was timely apprised of the developing 

problems, yet did not offer an alternate suggestion as to how the situation should be contained. 

The record, however, is devoid of any evidence of either respondent personally consulting the 

Coast Guard or ever attempting to do so. With limited second hand information, the Coast 

43 
Guard is not in a position to make the crucial decisions properly entrusted to the license 

mariners on scene. 

Furthermore, contributory negligence, even if alleged as being that of the Coast Guard, 

is not a valid defense. The sole issue in a Coast Guard suspension and revocation proceeding is 

the negligence of the individual[s] charged without respect to the involvement, if any, of others. 

See Appeal Decision 2492 (RATH)(held that the negligence ofthe individual charged is the 

- -u onlyissue) ;-Eree-~Llso-Ap·p-eal-ne-cts1mr23 80-(HAtt)(to-prevail;--the-irrdi vidual charged must--

sliow tliat tlie solefault of1lie casualty rests witli anotlier party); AppearDecisimf203-l 

(CANNON)( the possible fault or negligence of another person in no way mitigates the 

Appellant's negligence or contribution); Appeal Decision 2021 (HERRINGTON)(the fault of 

another can not be used to excuse fault on the part of the party charge). 

In separate complaints, both respondents are charged with negligence stemming from 

the same incident. The factual allegations arise from the circumstances surrounding the same 

marine casualty and the actions of the respondents while serving together aboard the tug JOHN 

TURECAMO on January 30,2000. Respondents can neither look to the negligence of the 

other as a defense nor to the possible involvement of the charging agency in assessing blame. 

Lastly, the evidence viewed as a whole supports a finding that the casu~lty involved in 

this case was avoidable at numerous decision points, starting with the decision to get underway, 

and, therefore, must be considered ofboth the Respondents' making. 

VI CONCLUSION 

The preponderance of evidence in the record supports a finding that both respondents 

acted negligently with respect to the navigation and operation of the PEQUECO II. This 

44 
incident was foreseeable and could have been avoided by the actions of either respondent at 

numerous decision points throughout the voyage. 

It is well within the power of the undersigned to order any of a variety of sanctions, 

including suspension. The U.S. Coast Guard has recommended that the respondents received a 

two (2) month outright suspension. In light of all the circumstances and facts surrounding this 

case, a two (2) month outright suspension is deemed an appropriate sanction. In so holding, the 

-- - -- -- -understgned-would note that this-case-does not involve-respondents who have a prior record ofviolations. Ratlier, iris an unfoftunate,lsolatea mstance wnerem ootn acted in a negligent 

manner that the undersigned feels will not again be repeated. WHEREFORE, 

VI. ORDER 

IT IS ORDERED that the charges ofNegligence against both Dannie Card and Domenic 

Rizzo and the supporting factual allegations thereunder are PROVED, and it is further, 

ORDERED that the Merchant Mariner's License No. 776161, issued to Respondent 

Domenic Rizzo, is hereby SUSPENDED for a period oftwo (2) months to begin upon 

surrender. Likewise, Merchant Mariner's License No. 770050, issued to Respondent Dan 

Card, is hereby SUSPENDED for a period of two (2) months to begin upon surrender. 

Respondents are ordered to immediately surrender their respective Merchant Mariner's 

Licenses to the Investigating Officers at Activities Baltimore, Maryland. It is hereby further, 

45 
ORDERED that the service of this Decision on the Respondents' counsel will serve as 

notice to the Respondents of their right to appeal, the procedure for which is set forth in 33 

C.F.R. §§ 20.1001-20.1003. (Attachment A) 

Dated this 2ih day of August, 2001 

Baltimore, MD 

Copy: 

Activities Baltimore, Attn: Investigations Department 

Geoffrey S. Tobias, Esq., Counsel for Respondent 

Eric M. Veit, Esq., Counsel for Respondent 

46 

Chief Administrative Law Judge 

U.S. Coast Guard