UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED ST A TES OF AMERICA 

UNITED ST A TES COAST GUARD 

vs. 

MERCHANT MARINER LICENCSE 

and 

MERCHANT MARINER'S DOCUMENT 

ISSUED TO: CLARENCE MARSHALL. Jr. : 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

No.26 7 2 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. 

Part 5, and the procedures set forth in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated October 28, 2004, Judge 

Jeffie J. Massey, an Administrative Law Judge (hereinafter "ALJ") of the United States 

Coast Guard at New Orleans, Louisiana, dismissed a Complaint against the merchant 

mariner credentials of Mr. Clarence Marshall Jr. (hereinafter "Respondent") upon finding 

not proved two charges of misconduct and one charge of violation of Law or regulation. 

PROCEDURAL HISTORY 

On June 24, 2004, the Coast Guard filed a Complaint against Respondent's 

merchant mariner credentials alleging two acts of misconduct (refusal to submit to drug 

and alcohol testing and consuming alcohol while acting under the authority of his mariner 

credentials) and one act of violation of law or regulation (being under the influence of 

alcohol while acting under the authority of his mariner credentials). (Complaint at 2] 

The Complaint was properly served on Respondent via Certified Mail, Return Receipt, 
267 2 

and a copy was duly faxed to the ALJ Docketing Center. [Complaint at 5] Respondent 

filed his Answer to the Complaint on June 30, 2004, therein admitting to all jurisdictional 

allegations and denying all factual allegations. [Answer] Respondent requested a 

hearing in the matter. [Id.] 

The hearing was held on September 30, 2004, in Morgan City, Louisiana. 

Respondent appeared prose, testified on his own behalf, and introduced one exhibit into 

evidence. The Coast Guard Investigating Officers (hereinafter "IOs") called three 

witnesses and introduced four exhibits into evidence. 

On October 28, 2004, the AU issued the D&O, finding the charges not proved 

and dismissing the Complaint. [D&O at 1 7] Thereafter, on November 2, 2004, the Coast 

Guard filed a Notice of Appeal in the matter and subsequently perfected its appeal by 

filing an Appellate Brief on December 27, 2004. Therefore, this appeal is properly 

before me. 

APPEARANCE: Respondent appeared prose. The Coast Guard was represented 

by LCDR Ron Patrick and CWO Jason A. Boyer of U.S. Coast Guard Marine Safety 

Office Morgan City, Louisiana. 

FACTS 

At all times relevant herein, Respondent acted under the authority of Coast Guard 

issued merchant mariner credentials, the holding of which was a condition of his 

employment. [Transcript (hereinafter "Tr.") at 25; D&O at 3] 

At approximately 0130 on May 22, 2004, Respondent was standing bridge watch 

duty as a mate on the M/V ELEFANTE GRANDE, which was moored at the public dock 

in Fourchon, Louisiana. [Tr. At 26; D&O at 3, 7, 73] While on duty, Respondent was 

approached by two fellow crewmembers, Mr. Curtis Ferrill and Mr. Robert Wood. [Tr. 

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at 73, 75] Respondent testified that it appeared that Mr. Ferrill had been drinking based 

on his mannerisms, slurred speech and manner of walking. [Tr. at 92; D&O at 11] 

Moreover, Mr. Robert Wood provided a written statement, which was read into the 

record by the ALJ, indicating that he and Mr. Ferrill were drinking vodka prior to 

confronting Respondent on the bridge. [Id.] 

While on the bridge, Respondent and Mr. Ferrill engaged in a heated argument, 

the subject of which is not clear from the record, which escalated into a physical 

confrontation. [Tr. at 75; D&O at 3] During the confrontation, Respondent suffered 

injuries to his face, lip and eyes while Mr. Ferrill received no injuries. [Tr. at 58; D&O at 

3] A careful review of the record indicates that Mr. Ferrill was the aggressor in the 

situation and that Respondent never fought back. [Tr. at 75; D&O at 1 OJ 

The master of the M/V ELEFANTE GRANDE, Mr. John Ryan, testified that he 

was awakened by the commotion on the bridge and proceeded to investigate. [Tr. at 57-

58] When he arrived on the bridge, Respondent and Mr. Ferrill were no longer engaged 

in a physical confrontation; however, they continued to engage in a heated argument. 

[Id.] The master testified that he did not smell or detect alcohol on either man, moreover, 

when Respondent relieved the master of the bridge watch, the master did not notice any 

evidence that Respondent had been drinking alcohol. [Tr. at 61, 66-67; D&O at 15] The 

master testified that Mr. Ferrill was yelling racial epithets at Respondent, and fearing that 

the situation could escalate or become more dangerous, the master ordered the two 

crewmembers to be separated and contacted the vessel's owner/operator, Tidewater 

Marine Inc. (hereinafter "Tidewater")), and the local police. [Tr. at 58; D&O at 9] 

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267 2 

Based upon the report of the master, the operations manager in charge of 

personnel for Tidewater, Mr. Charles Portier, dispatched two vehicles to retrieve 

Respondent and Mr. Ferrill and transported them back to Tidewater's "base of 

operation," which was approximately a two hour drive away. [Tr. at 26, 43, 58; D&O at 

7] At approximately 0315, the trucks arrived and transported the two men separately, 

eventually arriving at the ''base of operation" at approximately 0500. [D&O at 7; Tr. at 

43, 76] 

When Respondent arrived at the "base of operation," he was met by Mr. Ira 

Robertson, the personnel crew coordinator for Tidewater. (D&O at 8; Tr. at 43-44] 

Mr. Robertson testified that he smelled a "loud" odor of alcohol coming from Respondent 

and that Respondent's eyes were "glassy." [Tr. at 44, 48] Mr. Robertson also stated that 

Respondent was holding a cold pack on his eye and face, was dripping blood on 

paperwork, and was having difficulty trying to filJ out a written statement. [Id. at 46] 

Mr. Robertson testified that he ordered Respondent to submit to an alcohol and drug 

chemical test and that Respondent subsequently refused. [Tr. at 44; D&O at 8) During 

this questioning, Mr. Robertson was on the phone with Mr. Portier, who testified that he 

heard Respondent refuse to submit to the drug and alcohol tests over the phone. [Tr. at 

33-34; D&O at 7] 

Respondent testified that he was never asked to submit to any type of drug screen 

and flatly denied that he consumed any alcoholic beverages before or during his watch. 

[Tr. at 76; D&O at 1 O] Respondent admitted that he did not submit to any drug or 

alcohol test and added that he drove himself home. [Tr. at 77; D&O at 8] The day after 

the incident, the master of the MN ELEFANTE GRANDE searched the vessel and found 

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a half-gallon bottle of vodka, with three inches of liquid remaining in it, in the crew 

common shower; however, none of the remaining crew claimed ownership of it. (Tr. at 

63-64] 

BASES OF APPEAL 

This appeal is taken from the ALJ's D&O finding all charges not proved and 

ordering the dismissal of the Coast Guard's Complaint. Although the Coast Guard has 

discussed several issues on appeal, the crux of the appellant's argument can essentially be 

pared down to one salient issue, to wit: the ALJ erred by ruling that Tidewater did not 

have "reasonable cause" to order Respondent to submit to a chemical test for alcohol 

pursuant to 33 CFR § 95.035 and that, as a result, Respondent did not "refuse" a chemical 

test under 33 CFR § 95.040(b). 1 [Coast Guard Appellate Brief at 2] The Coast Guard 

urges that the ALJ erred in dismissing the Complaint and that Respondent's merchant 

mariner credentials should be revoked. [Id. at 3] 

OPINION 

On appeal, the Coast Guard asserts that the ALJ erred by ruling that Tidewater did 

not have "reasonable cause" to order the Respondent to submit to alcohol testing as 

required by 33 CFR § 95.035. [Coast Guard Appellate Brief at 2] As a consequence of 

Tidewater lacking "reasonable cause" to order the chemical test, the ALJ determined that 

Respondent did not "refuse" to take a chemical test, and therefore, did not commit an act 

of misconduct. [D&O at 16] 

1 The Coast Guard did not appeal either the ALJ's dismissal of the misconduct charge related to Respondent allegedly 

consuming alcohol while onboard the MN ELEF ANTE GRANDE or the violation of law or regulation charge alleging 

that Respondent operated the MN ELEFANTE GRANDE while under the influence of alcohol; therefore, the 

dismissal of those two charges will not be addressed herein. Accordingly, only the misconduct charge predicated upon 

Respondent's alleged refusal to submit to drug/alcohol testing is addressed in this decision. 

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2672' 

The applicable regulations provide that a marine employer "may direct an 

individual operating a vessel to undergo a chemical test when reasonable cause exists" 

and states that "reasonable cause" exists when "[t]he individual is suspected of being in 

violation of the standards in §§95.020 or 95.025." 33 C.F.R. § 95.035. In addition, the 

applicable regulations make clear that "[w]hen practicable, a marine employer should 

base a determination of the existence of reasonable cause, under paragraph (a)(2) of this 

section, on observation by two persons." Id. 

The standard applicable to the instant case is found at 33 CFR § 95.020(c): "[t)he 

individual is operating any vessel and the effect of the intoxicant(s) consumed by the 

individual on the person's manner, disposition, speech, muscular movement, general 

appearance or behavior is apparent by observation." In the "Findings of Fact" portion of 

her D&O, the ALJ found as follows with respect to the evidence of intoxication 

contained within the record: 

At the time the employer requested Respondent to submit to chemical 

testing, no person had observed evidence that the Respondent's manner, 

disposition, speech, muscular movement, general appearance or behavior 

had been affected by an intoxicant so that it was apparent by observation. 

[D&O at 3) The Coast Guard contends, in effect, that the ALJ's conclusion, in this 

regard, is not supported by the evidence contained in the record 

In cases like this one, the determination as to whether reasonable cause exists to 

support a request for the administration of chemical testing is a factual determination 

made by the AU based upon all the evidence available. See Appeal Decisions 2625 

(ROBERTSON) and 2624 (DOWNS). Thus, if an ALJ found evidence in the record to 

support a conclusion that a marine employer had reasonable cause to justify ordering an 

employee to submit to a chemical test, the employee's subsequent refusal of such a test 

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would be admissible as evidence of misconduct in any administrative hearing. 33 CFR 

§ 95.040. 

Prior Commandant Decisions on Appeal make clear that questions of fact are to 

be decided by the ALJ and will not be overturned unless they are arbitrary, capricious, 

clearly erroneous, or based on inherently incredible evidence. See, e.g., Appeal 

Decisions 2621 (PERIMAN), 2614 (WALLENSTEIN), 2608 (SHEPHERD), 2584 

(SHAKESPEARE), 2581(DRIGGERS),2570 (HARRIS), 2474 (CARMIENKE), 2390 

(PURSER), 2363 (MANN), 2344 (KOHAJDA) and 2333 (AYALA). A review of the 

record in this case shows that the ALJ carefully considered and weighed all of the 

relevant evidence relating to whether the marine employer had reasonable cause to direct 

Respondent to undergo alcohol testing. 

In her D&O, the ALJ stated that the testimony of Respondent, the master, and the 

statement provided by Mr. Woods were probative as to the question of intoxication. 

[D&O at 13-15] The ALJ further found that the testimony of the master was the most 

relevant to the issue. [Id. at 15] To that end, the ALJ noted that the master testified that 

when the Respondent relieved him of the watch at 2400, he did not notice any signs that 

the Respondent had been consuming alcohol or was intoxicated. [D&O at 15] In 

addition, the ALJ noted that the master testified that when he was separating Respondent 

and Mr. Ferrill in close quarters after the physical confrontation, he did not notice any 

signs of intoxication from Respondent. [D&O at 15] Finally, the ALJ found: 

In this case, I find Respondent is credible, and the record as 

a whole supports the key elements of his testlmony. There 

are significant conflicts in the evidence of record, and there 

are significant deficiencies in the evidence presented by the 

USCG, both of which have resulted in my conclusion that 

the allegations against the Respondent have not been 

7 
[D&O at 6-7] 

proved by the required level of evidence so that I am not 

convinced it is more likely than not that the Respondent 

committed the charged violations. 

2672 

Respondent testified that he had not consumed alcohol before or after being on 

watch, and had not refused to submit to a chemical test because he claims he was never 

offered one. [Tr. at 76; D&O at IO] Moreover, the statement provided by Mr. Woods 

indicates that he and Mr. Ferrill had been drinking, but did not suggest that Respondent 

was drinking. [Tr. at 92; D&O at 15] Finally, the ALJ notes that the only person who 

claimed to have observed that Respondent was intoxicated or appeared to be intoxicated 

was Mr. Robertson, who did not observe Respondent until nearly four hours after the 

assault by Mr. Ferrill. [D&O at 15] The ALJ determined that Mr. Robertson's testimony 

was not entirely credible and that, perhaps, he was mistaken in his observations. [D&O 

at 14-15] In particular, the ALJ attributed Mr. Robertson's observation that Respondent's 

eyes were "glassy" to the fact that Respondent was previously involved in a significant 

altercation. [D&O at 15] 

The trier of fact, by virtue of her unique opportunity to observe witnesses and 

weigh their testimony, is assigned the duty of assessing the evidence adduced and making 

credibility determinations. See, e.g., Appeal Decisions 2654 (HOWELL) and 2279 

(LEWIS). The ALJ's conclusions on the weight to be given any particular evidence and 

the ultimate findings of fact deserve a degree of deference. Appeal Decision 2214 

(CHRISTENSEN). A review of the record shows that there was evidence in the record to 

support the ALJ's conclusion that Tidewater did not have reasonable cause to direct 

Respondent to undergo chemical testing for alcohol use. The ALJ's approach to 

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resolving conflicts in the evidence were reasonable, justified, and well articulated in her 

D&O. 

CONCLUSION 

The findings of the ALJ had a legally sufficient basis. The ALJ's decision was 

not arbitrary, capricious, or clearly erroneous. Because competent, substantial, reliable, 

and probative evidence existed to support the ALJ's Decision and Order, I find 

Respondent's basis of appeal to be without merit. 

ORDER 

The order of the ALJ, dated at New Orleans, Louisiana, on October 28, 2004, is 

AFFIRMED. 

)o_ ·--· - S. CJ~ 

V.S.CREA 

Vice Admiral, U.S. Coast Guard 

Vice Commandant 

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