01/29/2007 16:45 PAX 957 668 5609 ADMZN LAW JUDGE 

76 . < 

UNITED STATES OF .%M.ERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UMETED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOHN C. MCCARTHY I11 

respond en^ 

Docket Number: CG S&R 06-0192 

CG Case No. 2516092 

FLi DECISION AND ORDER ON SANCTION 

Issued: December 28.2006 

Issued by: Peter A. Fitz~atrick, Administrative Law Judge. 

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Appearances: 

For Complainant 

CWO Bernard Tufts 

CWO Terry Roberts 

PO Michael Rohland 

United States Coast Guard 

Marine Safety Unit 

100 W. Oglethorpe Avenue 

Savannah, GA 31401 

For Respondent 

Charles R Raley, Jr. Esquire 

Portman & Raley, UC 

P.O. Box 9087 

Savannah, GA 31412 
01/28/2007 18:46 FAX 757 688 5808 ADMIN LAW JUDGE 

1. 

PROCEDURAL HISTORY 

On September 20,2006, I conducted a hearing in the above-captioned case. The hearing 

concluded immediately after the parties litigated matters relevant to whether or not the charges 

were proved. I indicated to the parties that, if any of the charges were proved, an additional 

session would be reconvened at a later date and that boUl parties would then have a chance to 

offer evidence in aggravation and mitigation. In my Decision and Order dated November 29, 

2006,l found that Respondent was both Negligent and committed Misconduct in passing the 

Liquid Natural Gas ("LNG") terminal with an LNG tankship wilhio its slip at 14.2 knots. The 

Negligence charge was predicated on Respondent's breach of minimum safe speed and the 

Misconduct charge was predicated on his violating 33 CFR 162.65@)(3), which requires vessels 

to proceed at a speed as to not endanger other vessels or structures. 

On December 20,2006, I conducred a second hearing in the above-captioned case. The 

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Coast Guard offered evidence that Respondent has aprior record with the Coast Guard, that 

Respondent's actions resulted damages totaling $109,500.00, and that hb actions could have 

resulted in cataclysmic consequences. Respondent offered evidence that he has a reputation for 

being a conscientious and skilled mariner, that be has a good record, and that he has learned his 

lesson. In this Order, I make a determination as to the appropriate sanction. 

LI. 

AGGRBVATION EWENCE 

A. Prior Disciplinary Record 

In determining an appropriate sanction for acts or offenses for which revocation is not 

mandatory, an Administrative Law Judge rAW") may consider the prior disciplinary record of 
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the Respondent considering the period of time between prior acts and the act or offense at issue 

in the present case. 46 CFR 55.69@)(2), it is important to note that the prior disciplinary record 

of a Respondent only includes acts or offenses less than ten years old. 33 CFR 1315(a). Thus, 

acts or offenses ten years old 01 older are not part of a Respondent's prior disciplinary record and 

thus are not to be considered as aggravating evidence in determining the appropriate sanction. 

At the hearing, the Coast Guard offered into evidence several exhibits regarding 

Respondent's prior disciplinary record. After careful consideration of the aforementioned 

exhibits and of the testimony at the hearing, it is apparent that none of these prior incidents 

regarding Respondent occurred less than ten years ago. The Coast Guard did offer evidence of 

one incident that was less than ten years old. However, it did not involve a charge against 

Respondent. In fact, it did not even name Respondent as sharing the blame for an accident.' As 

such, none ofthe Coast Guard's submissions regarding Respondent's prior disciplinary record 

will be considered as aggravating evidence. i : 

TO the contrary, there was @edible evidence at the hearing indicating that Respondent bas 

not had a marine casualty in the past ten years. Respondent will, therefore, be considered to have 

no prior disciplinary record for rhe st&t puIpose of determining the appropriate sanction in this 

case. 

B. Damage and Potential Damage 

As discussed in my November 29,2006 Decision and Order, Respondent navigated the 

CHARLESTON past the LNG terminal with an LNG tankship within its slip at 14.2 knots. This 

was more than double the proper speed under the circumstances and caused the LNG tankship to 

surge along the dock and damage ensued. Thc Coast Guard offered into evidence a detailed 

1 The Coast Guard offered this as Exhibit 15. This exhibit was not admitted into evidence. 
01/26/2007 16:46 FAX 757 668 5609 AIIIlfIN LAW JUDGE 

report &om Southern LNG regarding the actual damage resulting fiom Respondent's Negligence 

and Misconduct on March 14,2006. The report indicated that Respondent's speed mcl 

corresponding surge caused $75,000.00 worth of damage to the south dock gangway alone. The 

report indicated that the total damage Respondent caused amounted to $109,500.00. Respondent 

did not dispute the validity of this report. While small compared to the potential damage that 

could have resulted from Respondent's conduct, $109,500.00 is sufficient damage to be weighed 

as an aggravating factor in determining the appropriate sanction. 

As discussed in my November 29,2006 Decision and Order, navigating past an active 

LNG transfer with a large ship such as the CHARLESTON at 14.2 knots could have resulted in 

cataclysmic consequences. The potential damage, destruction, injury, or loss of life that could 

have resulted from Respondenr's actions is staggering. This weighs against Respondent. 

III. 

EvnTIGATLATG EVIDENCE ,' j: 

On the other hand, Respondent offered into evidence several affidavits of other pilots 

attesting to Respondent's reputation for safety in the maritime community. Respondent also 

called several witnesses who testified that Respondent is not a danger to life and property at sea, 

but instead that Respondent is and has been a very safety conscious and skilled mariner. One 

witness described Respondent as "second to none." These statements are well talcen on 

Respondent's behalf, but the most compelling mitigating evidence came when Respondent took 

the stand on his own behalf. 

Respondent restified that he has sailed the Savannah River approximarely one hundred 

times per year for the last ten years. He further testified that he has not had a single incident 

during that time and that he has never had a problem with speed. The Coast Guard did not 
01/20/2007 16:47 FAX 757 668 5609 PBEIN LAW JUDGE 

dispute this, and only offered evidence of Respondent's prior disciplinary record for incidents 

ocmning more than ten years ago.' I find that Respondent has, therefore, successfully navigated 

the Savannah River at least one thousand times without a singIe incident. As previously 

discussed, this particular incident is extremely troubling on its face and its potential 

consequences make this a very serious mistake. However, one mistake out of one thousand trials 

is an impressive statistic and is a very strong indicator that Respondent is a very skilled and 

conscientious pilot and mariner. It is conceivable that this incident was an aberration. 

Another fact that weighs in mitigation is that Respondent appears to have a new outlook on 

speed. He showed remorse at the hearing and assured the court that he will never have a speed 

problem again. He also testified that he has a new appredation for the dangers of navigating past 

the LNG terminal at high speeds. This is also weighted in Respondent's favor. 

Iv. 

smm10PJ ' . 

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The selection of an appropriate order is the responsibility of the ALJ. 46 CFR 5.569(a). 

In Chis case, the Coast Guard is seeking revocation. In determining whether revocation is the 

appropriate sanction'for offenses for which revocation is not mandatory, an ALJ should consider 

a Respondent's prior records. 46 CFR 5.569@)(2). As previously discussed, since there was no 

evidence that Respondent has had a prior incident less than ten years ago, he will be treated as a 

first rime offender for the, strict purpose of determining the appropriate sanction in this case. For 

first time offenders and without considering other factors, the Table of Average Orders suggests 

a suspension of up to six months for negligently performing duties related to vessel navigarion 

'The Coast Guard did offer into evidence a case regarding chags against a company Responden! owned a1 the 

time of a marine safety incident. Captain McCarthy was nor named as a Rcspondcn~and there were no allegations 

that Respondent had conrributed in any way to the incident. 
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and up to three months for misconduct predicated on a failure to comply with U.S. law or 

regulations. 46 CFR 5.569. 

In this case, the damage and potential damage that Respondent caused by his actions 

must be weighed against Respondent's good record and apparent remorse for his actions. 

Respondent's actions indeed caused significant damage, and I cannot stress enough that 

Respondent's actions could have resulted in a massive disaster. However, Respondent's good 

track record and apparent remorse are sufficient to convince me that he is not a danger to life and 

property at sea. While not enough to reduce the sanction to a warning as Respondent proposed, 

these mitigating factors are sufficient to keep the sanction within the standard range of sanctions 

for these offenses as contemplated by the Table of Average Orders. Revocation is therefore not 

appropriate in this case. 
01/29/2007 16:47 FAX 757 888 5609 ADHIN LAW JUDGE 

V. 

ORDER 

?X IS HEREBY ORDERED that Respondent's Coast Guard issued License is suspended 

outright for eight (8) months followed by a suspension of twelve (12) months stayed on twelve 

(12) months probation. This sanction will take effect immediately. 

PLEASE TAKE NOTICE that service of this Decision on the parties andlor parties' 

representative(s) serves as notice of appeal rights set forth in 33 CFR Part 20, Subpart J. A copy 

of Subpart J is provided as an Attachmenr. 

United States Coast Guard 

Done and Dated on December 28,2006 at 

Norfolk, VA 
01/29/2007 16:48 FAX 757 668 5600 ADliIN LAW JUDGE 

T A - mDITION& WITNESS BMB E IT LIST 

A. Witness Lists 

I. Agency's Witnesses 

The Coast Guard did not call. any witnesses. 

II. Respondent's Witnesses 

1. Captah Samuel J. Meyer 

2. Captain Carl mth 

3. Captain John C. McCarthy 111 

B. Exhibit Lists 

1. Agency Exhibits 

13. Decision and Order for USCG v. McCarthy. Case no.: 16722/0013/90 

14. Coast Guard Report of Investigation 

15. Decision and Order for USCG v. McCarthy. Case no. PA95001668 

16. Aupeal Decision 2601 (McCarthv'1(1996) 

17. Case of Ingraham v. Citgo 

18. Report of accident to Patrick Ingraham (not admitted) 

19. Outcome of charges against Respondent 

20. Damage report from Southern LNG 

11. Respondent's Exhibits 

R. Marine Safety and Security Bulletin 21-06 

S. Letter from Randy Cornwell 

T. Affidavit of Captain Richard Wigger 

U. Affidavir of Captain Arthur Kirk 

V. Letter froin Scot A. Couturier 

W. Letter from Captain Russell Gregg 
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_/ . I .. 

33 CFR 20.1001 General. 

(a), Any party may appeal the AU's decision by filing a notice of appeal. The parry 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Bal.timore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

@) No party may appeal except on the followingissues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. t a 

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(4) The AW's denial of a mofion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALT did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal 
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-: . .. .. 

@) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the W's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Battimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objection+ to the 

i, 

decision or ruling. The brief must set forth, in detail, the -- 

(i) Basis for the appeal; 

(ii) Reasons supporting th;! appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

sfinrice of the AU's decision. Unless filed within this time, or within another 

time period authorized in wriring by the Docketing Center, the brief will be 

untimely. 
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@) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the parry to file that brief. 

(dl The Commandant may accept an amicus curiae brief from any person in an appeal of. 

an AIJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall, review the record on appeal to determine whether {he ALJ 

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committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the Am's decision or should remand the case for further 

proceedings. 

@) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person. 
01/29/2007 16:49 FAX 757 668 5609 ADMIN LAW JUDGE El012 

I 

Certificate of Servlce 

I hereby certify that I have this day sewed the foregoing Order by Fed Ex upon the 

following parties and limited participants (or designated representatives) in this proceeding at the 

address indicated: 

CWO Tufts 

United States Coast Guard 

Marine Safety Unit 

100 W. Oglethorpe Avenue 

Savahnah, GA 31401 

Em: 912-652-4052 

Charles H. Raley, Jr. Esquire 

Porcman & Raley, LLC 

P.O. Box 9087 

Savannah, GA 31412 

Fax: 912-234-6430 

(Attorney for Respondent) 

David F. Sipple, Esquire 

Hunter, MacSean, Exley & Dunn, P.C. 

200 E. St. Julian Street 

P.O. Box 9848 

Savannah, GA 31412 

Fax: 912-232-3253 

(Attorney for witness Southern LNG, Inc.) 

T. Langston Bass, Jr. 

Brennh, Harris & Rominger LLP 

2 East Bryan Street, Suite 1300 

P.O. Box 2784 

Savannah, GA 31402 

Fax: 912-236-4558 

(Attorney for witness Captain Tommy Parker) 

~drninistrative Law Judge 

United States Coast Guard 

Done and Dated on December 28,2006 at 

Norfolk, VA