UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD ) 

) 

vs. ) 

RICHARD EDWIN COOK, 

Respondent 

) Docket No. S&R 00-0366 

) Coast Guard Case No. PA00000989 

) 

) ___________________________ ) 

DECISION AND ORDER 

This proceeding was commenced by the Coast Guard pursuant to the authority 

contained in 46 CFR § 7701-7703(1)(A),(B); 46 CFR Part 5; 33 CFR Part 20 et. seq ... 

The Coast Guard's initial complaint filed May 30, 2000 alleged four violations: 

Violation of Law and Regulation; Misconduct; Negligence; and Incompetence. 

The Complaint was later twice amended. The final amendment filed on April3, 

2001 alleged as follows: 

Violation of Law or Regulation 

FIRST SPECIFICATION (AMENDED): The Coast 

Guard alleges that on or about May 18, 2000, while serving 

as operator on the un-inspected towing vessel BONNIE G. 

SEL VICK (D227498), as required by law, the respondent 

failed to insure that a vessel sailing plan was reported to the 

Vessel Traffic Service (VTS) Saint Marys River, as 

required by Title 33, Code of Federal Regulations, Part 

161.19. This failure involved the entry of the vessel into 

the VTS St Marys River area, defined in 33 CFR Part 

161.45, at approximately 2:30a.m. on May 18,2000. The 

Respondent failed to file a sailing plan until approximately 

4:40a.m. on May 18, 2000, after the vessel had entered and 

traversed within the VTS Saint Marys River area for a 

distance of approximately 18 miles. 

Decision and Order - 1 
Misconduct 

FIRST SPECIFICATION: The Coast Guard alleges that 

on or about May 18, 2000, while serving as operator on the 

uninspected towing vessel BONNIE G SEL VICK 

(D227498), as required by law, the Respondent failed to 

insure the vessel was properly manned as required by Title 

46, Code of Federal Regulations, Part 15.610. This failure 

involved the continuous navigation of the vessel from the 

port of Chicago, Illinois, departing at approximately 12:45 

p.m. on May 15 2000, to the port of Sault Ste Marie, 

Michigan, arriving at approximately 11 :45 am on May 18, 

2000. During this voyage the Respondent was the only 

properly licensed operator on the vessel. 

SECOND SPECIFICATION (AMENDED): The Coast 

Guard alleges that on or about May 18, 2000, while serving 

as operator on the uninspected towing vessel BONNIE G 

SELVICK (D227498), as required by law, the Respondent 

did relinquished [sic] the actual direction and navigational 

control of the vessel to a person not licensed by the Coast 

Guard as a master, mate, operator or second class operator 

of an uninspected towing vessel, while the vessel was 

underway in transit from the port of Chicago, Illinois, 

departing at approximately 12:45 p.m. on May 15, 2000 to 

the port of Sault Ste Marie, Michigan arriving at 

approximately 11 :45 a.m. on May 18, 2000. 

Negligence 

FIRST SPECIFICATION: The Coast Guard alleges that 

on or about May 18, 2000, while serving as operator on the 

uninspected towing vessel BONNIE G SEL VICK 

(D227498), as required by law, the Respondent responsible 

for the material condition of the vessel, allowed the vessel 

to be operated without the required equipment (EPIRB), 

navigation charts, navigation publications, lifesaving 

equipment, anchor ready for letting go, navigation lights, 

VHF FM radio, bell). The vessel was operated underway 

without the required equipment from the port of Chicago, 

Illinois, departing at approximately 12:45 p.m. on May 15, 

2000 to the port of Sault Ste Marie, Michigan arriving at 

approximately 11 :45 a.m. on May 18, 2000. Allowing the 

vessel to operate in this condition without the required 

equipment are actions which a reasonable and prudent 

Decision and Order - 2 
person of the same station, under the same circumstances, 

would not fail to perform. 

Incompetence 

FIRST SPECIFICATION (AMENDED): The Coast 

Guard alleges that on or about May 18, 2000, while serving 

as operator on the uninspected towing vessel BONNIE G 

SEL VICK (D227498), as required by law, the Respondent 

was observed to be physically impaired due to a lack of 

physical dexterity, strength and stamina, that the 

Respondent was observed to experience limitations in 

physically moving about the vessel, was observed to be 

unable to depart the vessel to the dock without falling and 

that after falling was observed to be unable to get up, and 

that the Respondent is still susceptible to this condition. 

Respondent answered the amended complaints in which he admitted his residence 

in Sault Ste Marie, Michigan, and he holds Coast Guard License Number 823785. 

Respondent denied he acted under the authority ofthat license on May 18,2000 by 

serving as operator of the uninspected towing vessel BONNIE G SELVICK (D227498) 

as required by law or regulation. Respondent denied all other allegations in the amended 

complaint. 

This matter was ultimately heard in Sault Ste Marie, Michigan on Thursday, May 

31, 2001 and Friday, June 1, 2001. The Coast Guard presented six witnesses and 23 

exhibits were admitted some of which were subject to certain limitations. Respondent 

testified and offered and had admitted 13 exhibits and three witnesses. 

At the close ofthe Coast Guard's case, Respondent moved for a directed verdict 

dismissing the Coast Guard's case. Respondent contended that the Coast Guard had 

failed to meet its burden of proof with respect to the jurisdiction, particularly the failure 

to prove that Respondent was acting under the authority of his license. 

That motion was considered under the standards for such motions in Federal Rule 

of Civil Procedure 41 (b) because the Coast Guard's procedural rules do not address 

directed verdicts. Thus under the authority of 3 3 CFR § 20.103 (c), federal rule 41 (b) was 

applied. Under that rule and the authority of Fullerton v. Monogahela Connecting 

Railroad Company, 242 F.Supp 622 (WD PA, 1965) the evidence to that point was 

considered in a light most favorable to the non-moving party, here the Coast Guard. The 

motion was denied. See Transcript Record at pp. 496-500. 

Considering the testimony of the witnesses and evaluation of the admitted 

exhibits, together with the depositions of various other witnesses, all of which constitute 

the record in this proceeding, I find that no further evidence has been presented which 

contradicts my factual findings and conclusions of law set forth in the transcript at pp. 

Decision and Order - 3 
496-500. I therefore find that the Respondent was acting under the authority of his 

license between 12:45 p.m. on May 15,2000 from the port of Chicago, Illinois to the port 

of Sault Ste Marie, Michigan arriving at approximately 11:45 a.m. on May 18, 2000. I 

thus find the Coast Guard has jurisdiction in this matter. 

Factual Findings 

The BONNIE G SEL VICK [Official Number 227498] is a 95 gross ton, 

80 foot uninspected steel hulled, self propelled towing vessel owned by TNT Dredging, 

Inc. of Grand Rapids, Michigan. See Plaintiffs Exhibit 11 [Certificate of 

Documentation, USCG]. On May 15, 2000 the vessel was employed to tow a 289 ton 

dredge barge LOUISE and another tug WOLVERINE, both of which are also owned by 

TNT Dredging, Inc., from Chicago, Illinois to Sault Ste Marie, Michigan. 

Respondent has been a mariner for more than fifty years. He was most recently 

licensed on August 10, 1998 with a physical waiver. He was licensed as a Master ofNear 

Coastal Motor Vessels of not more than 200 gross tons restricted to uninspected towing 

vessels for domestic voyages. He was also licensed as an operator of uninspected 

Towing vessels upon the Great Lakes and Inland Waters. He is also licensed as an 

unlimited Radar Observer. 

Respondent is 5' 5W' tall, and weighs 200 pounds. His vision uncorrected is 20/30 

in the right eye (corrected 20/25) and uncorrected in the left eye 20/40 (corrected 20/20) 

together with a normal field ofvision (180°). His color vision is normal. See Plaintiffs 

Exhibit 20. 

As early as 1960, Respondent was diagnosed with arthritis and was (and 

continues to be) treated by medication culminating in surgical replacement of his two 

knees due to osteoarthritis [Transcript pp 549 ff.]. Respondent was also treated in 1994 

for coronary artery disease by angioplasty (balloon) and there is no evidence of any 

current ischemia (arterial obstruction). Due to his arthritis, Respondent has some chest 

wall immobility restricting his lungs or breathing [Plaintiffs Exhibit 20]. This judge's 

observations of Respondent during the hearing revealed a man who walked slowly, 

carefully, and with short strides. His finger dexterity is marginal and his grip is weak but 

adequate. 

Respondent was contacted by a Darren "Ted" McCoy of TNT Dredging, Inc. 

inquiring of his likelihood of helping out on a tow from Chicago [Transcript at p 563]. 

Respondent along with his friend Alvin Menard for some twenty or more years, traveled 

to Grand Rapids and from Grand Rapids they traveled by automobile to Chicago to 

commence the voyage aboard the SEL VICK. Neither Respondent nor Menard were a 

full time employee of TNT Dredging. 

Decision and Order - 4 
McCoy informed Respondent that a Charles Hansford would be joining the crew 

for the voyage. McCoy represented to Respondent that Hansford was licensed to operate 

the SELVICK. Hansford is not so licensed by the Coast Guard. 

Respondent was employed for this voyage because of his knowledge and 

experience, as a licensed operator on the Great Lakes [Transcript at pp. 614 ff.]. 

Respondent and Menard joined up with Hansford and James R. Morrison making 

up the crew of the SEL VI CK. They then departed the port of Chicago on May 15, 2000. 

Respondent piloted the SELVICK when it left the dock and Hansford piloted the 

WOLVERINE with the LOUISE in tow. The WOLVERINE and the LOUISE were then 

made up in a tow aft of the SELVICK and the SELVICK then commenced the voyage to 

Sault Ste Marie. See Plaintiffs Exhibit 22 [Deposition of Darren McCoy at p. 35 ff]. 

Respondent selected the SEL VICK because it had hydraulic steering where the 

WOLVERINE had manual steering. He did so because it was easier for him to steer 

[Transcript p. 614]. 

The voyage took a northern direction following the west side of Lake Michigan 

about three to four miles from shore [Transcript p. 583]. The SELVICK had on board a 

new EPIRB which was not mounted but remained in its original container [Transcript at 

p. 587] 

Approximately at 0230 a.m. the morning of May 18,2000, the SELVICK, with 

the LOUISE and WOLVERINE in tow, entered the St. Marys River system enroute to 

Sault Ste Marie. Respondent left the pilot house for some sleep and Hansford took over 

the piloting of the SELVICK. Prior to retiring, Respondent instructed Hansford on the 

proper route up bound in the river in order to avoid the down bound large 1 000' ore 

freighters. Hansford was told to turn at the mid channel buoy and to go up the Round 

Island Course and "keep to the red side." following the red buoys [Transcript p. 590]. 

Hansford was to go up the starboard side of the channel, which comes on to the Winter 

Point Ranges. He was told when he gets to that buoy he was to report to the Coast Guard. 

Instead, Hansford went up the down bound or port side of the channel. Alvin Menard 

awakened Respondent alerting him to a problem in the transit. Respondent immediately 

recognized the error, assumed control and turned the vessel and tow around to exit the 

down bound channel. He then brought the vessel and tow up the correct channel 

[Transcript p. 592]. The Coast Guard Vessel Traffic Service was never informed of this 

error in transit or the tow's location [Transcript pp. 592-593]. 

Later at 0411 hrs, the Coast Guard VTS heard a feint call on the VHS radio 

purporting to be a tug and barge in tow. The tug switched to a different radio and contact 

was lost. The VTS Watchstander made a call on Channel12 for the tug to no avail. 

Shortly thereafter contact was made with the tug by cellular telephone and it was the 

SELVICK reporting that her radio was not properly operating. Coast Guard VTS was 

advised they anticipated arrival at the Sault Ste Marie Carbide Dock around 1200 hrs. 

The SEL VI CK arrived at the Carbide Dock at 1219 hrs. [Plaintiffs Exhibit 2, VTS 

Daily Traffic Summary; Plaintiffs Exhibit 1 VTS Audio Tape]. 

Decision and Order - 5 
After arrival at the dock the Coast Guard commenced an inspection of the vessel. 

Respondent departed the SEL VICK with some assistance from crewmembers. Upon 

departing, Respondent fell and was helped to his feet. 

The Coast Guard inspection revealed that the SELVICK did not have up to date 

navigation charts on board. Nor was it in possession of navigation publications [e.g., 

Coast Pilot], life preservers for each crewmember, personal flotation devises, lights, and 

sound signal devises. 

Respondent has not disputed the fact that Charles Hansford is not licensed by the 

Coast Guard as an operator, master, or mate qualified to operate, operate or pilot the tug 

BONNIE G SEL VICK. 

Violation of Law or Regulation 

Respondent is charged with one count or specification of violation of law or 

regulation as defined in 46 CFR § 5.33 and made punishable by 46 USC§ 7703(1)(A). 

The regulation which Respondent is alleged to have violated is 3 3 CFR § 161.19 relevant 

to the VTS area for the St Marys River [33 CFR § 161.45] which provides as follows: 

Unless otherwise stated, at least 15 minutes before 

navigating a VTS area, a vessel must report the: 

(a) Vessel name and type; 

(b) Position 

(c) Destination and ETA 

(d) Intended Route 

(e) Time and point of entry, and 

(f) Dangerous cargo on board or in its tow, as 

defined in§ 160.203 ofthis chapter, and other 

required information as set out in§ 160.211 and 

§ 160.213 of this chapter, (if applicable). 

Respondent contends this charge should be considered in light of the mechanical 

deficiencies of the SELVICK's radiotelephone equipment. Respondent relies upon 33 

USC§ 1205 incorporated into 33 CFR § 26.06 which provides inter alia that whenever a 

radiotelephone ceases to operate properly, the master of the vessel shall exercise due 

diligence to restore it to its proper operating condition. 

Respondent says that the evidence clearly shows that the SELVICK's 

radiotelephone was inoperable and was repaired as soon as possible once arriving at the 

Carbide Dock in Sault Ste Marie. 

While all of that is true, it ignores the dictates of the regulation and the facts 

relevant to the SELVICK's entry into the VTS area of the St Marys River. 

Decision and Order - 6 
At the outset of this analysis, I must reiterate that I have found that Respondent 

was operating the SEL VI CK under the authority of his license and thus I must conclude 

here that he was for the purposes of this charge the Master of the BONNIE G SELVICK 

at all relevant times. As the Master he was charged with the duty of compliance with 33 

CFR § 161.19. 

Just after entering the VTS area of the St Marys River at 0230 hrs on May 18, 

2000 Respondent left the bridge of the SELVICK to sleep. He left in charge, Charles 

Hansford; a man who Respondent knew had no knowledge of the St Marys River system. 

Respondent knew Hansford had never navigated the area before. He knew Hansford 

lacked sufficient skills plotting a course. Respondent even left instructions with 

Hansford when to call in to the VTS. Which was not done. 

A completely unqualified person was piloting the SELVICK. And, Respondent's 

decision proved potentially fatal by Hansford's navigating the down bound channel 

where the SEL VICK could have collided with a 1 000' ore freighter in the dark hours of 

the early morning. 

Moreover, Respondent knew or should have known (given his many years of 

experience) the regulation required that within 15 minutes after entering the VTS area a 

sailing plan was to be called into the VTS. No call was even attempted until about 0411 

hrs, more than an hour and half after entering the VTS area. 

I must conclude that Respondent violated 33 CFR § 161.19 and thus 46 USC 

§7703(1)(A). 

Misconduct 

Respondent is charged with two counts or specifications of misconduct as defined 

in 46 CFR § 5.27 and made punishable by 46 USC§ 7703(1)(B). 

The first specification alleges that the respondent failed to insure the vessel 

BONNIE G SELVICK was properly manned as required by 46 CFR § 15.610 which 

provides in relevant part as follows: 

Every towing vessel ... must be under the direction 

and control of a person licensed as master or mate (pilot) of 

towing vessels or as maser or mate of vessels of appropriate 

gross tonnage holding an endorsement on his or her license 

for towing vessels ..... 

The Coast Guard's Investigating Officer (IO) alleges that the violation of this 

regulation involved the continuous navigation of the vessel from the port of Chicago, 

Illinois, departing at approximately 12:45 p.m. on May 15 2000, to the port of Sault Ste 

Marie, Michigan, arriving at approximately 11:45 am on May 18, 2000. The IO further 

Decision and Order - 7 
alleges during this voyage the Respondent was the only properly licensed operator on the 

vessel. 

Respondent has not seriously contested this specification. Or, at least no closing 

argument has been filed addressing the charge. 

The IO argues that the Respondent had relinquished control of the BONNIE G 

SEL VICK, the relevant vessel, to Charles Hansford an unlicensed person. Since 

Respondent was the only licensed person on board the vessel during its entire voyage his 

permitting Hansford to assume actual direction and control of the vessel is the essence of 

this violation. 

I must agree with the IO. Respondent's most serious relinquishment of direction 

and control of the vessel occurred when it entered the VTS area of the St Marys River 

system. Respondent knowing that Hansford had no knowledge of the area, was not 

particularly skilled in plotting a course, turned the helm over to Hansford and retired to 

sleep. This proved seriously mistaken. Again, Hansford went up the wrong channel (up 

the down bound channel). Upon discovery and awakening, Respondent had to resume 

control, reverse the vessel's course, exit the area, and return to the proper channel. 

I find this specification proven. 

The second specification appears to be a duplication of the first specification but 

with greater specificity regarding the voyage to Sault Ste Marie. Given the duplicity of 

this specification it is hereby joined together with the first specification. The second 

specification is struck as duplicitous. 

Negligence 

Respondent is charged with a single count or specification of negligence as 

defined in 46 CPR§ 5.29 and made punishable by 46 USC§ 7703(1)(B). 

It was alleged that Respondent as the master or operator ofthe BONNIE G 

SELVICK was responsible for the material condition ofthe vessel, and allowed the 

vessel to be operated without required equipment (EPIRB, navigation charts, navigation 

publications, lifesaving equipment, anchor ready for letting go, navigation lights, VHF 

FM radio, bell). The allegation asserts the vessel was operated underway without the 

required equipment from the port of Chicago, Illinois, departing at approximately 12:45 

p.m. on May 15, 2000 to the port of Sault Ste Marie, Michigan arriving at approximately 

11 :45 a.m. on May 18, 2000. It also alleges that allowing the vessel to operate in this 

condition without the required equipment are actions, which a reasonable and prudent 

person of the same station, under the same circumstances, would not fail to perform. 

Again Respondent has not seriously contested this charge, or least has not filed 

any closing argument addressing these allegations. In short, Respondent's failure to 

address or defend these allegations tacitly admit them. 

Decision and Order - 8 
The record evidence is quite plain that the BONNIE G SEL VICK did not have the 

proper navigation charts and publications. It did not have various life saving equipment, 

such as personal flotation devices, or sufficient life preservers on board. The EPIRB 

devise was on board but still in the original container and thus not mounted and ready for 

deployment in the event of a capsize of the vessel. 

I have found that Respondent was in reality the master of the BONNIE G. 

SELVICK. He was placed on that vessel because the owner of the vessel had confidence 

in him to see that its voyage and tow to its destination would run smoothly. As the 

master he is the individual primarily charged with the care and safety of the vessel and 

crew. Commandant Decision on Appeal (CDOA) 2098 (Cordis h). In order to ensure the 

proper management and safety of his vessel, and crew, the master must keep himself well 

informed of any defects in the vessel, which could pose a significant hazard to life or 

property. CDOA 2307 (Gaboury). Absence of proper personal flotation devices, 

mounted EPIRB when more than four miles off shore as this vessel was at time, poses 

significant hazards which cannot be overlooked. 

I find this specification proven. 

Incompetence 

The Respondent is charged with being physically incompetent to serve as a master 

or operator of a towing vessel. Incompetence is defined in 46 CFR § 5.31 and is subject 

to sanction by reason of 46 USC§ 7703(1)(B). 

The Coast Guard alleges that on or about May 18, 2000, while serving as operator 

on the uninspected towing vessel BONNIE G SEL VICK (D227498), as required by law, 

the Respondent was observed to be physically impaired due to a lack of physical 

dexterity, strength and stamina, that the Respondent was observed to experience 

limitations in physically moving about the vessel, was observed to be unable to depart the 

vessel to the dock without falling and that after falling was observed to be unable to get 

up, and that the Respondent is still susceptible to this condition. 

I am not persuaded that Respondent is physically incompetent to serve as a master 

or operator of an uninspected towing vessel on the Great Lakes. I base this conclusion on 

my personal observations ofthe Respondent and after consideration of the testimony of 

each of the physicians presented in this case. I also considered results of Respondent's 

physical examination and his various medical records. 

I considered the testimony and findings of Captain Edwin L Jones III M.D. 

Captain Jones is assigned as the Senior Medical Officer, Coast Guard Personnel 

Command, Washington, D.C. Captain Jones reviews requests for medical waivers for 

merchant mariners who do not meet the standards under the Navigation and Vessel 

Inspection Circular No. 2-98 (NVIC). Captain Jones had not actually conducted any 

physical examination of Respondent. He relied completely upon his years of experience 

Decision and Order - 9 
of reviewing medical records of mariners who seek medical waivers in connection with 

their licensure. Moreover, I am not bound by medical findings and opinions. The 

ultimate finding as to fitness are mine alone. CDOA 2191 (Boykin); CDOA 1720 

(Howell) affirmed National Transportation Safety Board No. 2165, and CDOA 

1466(Smith). 

I rejected the testimony and written statement of PO WilliamS. Barton as 

incredible. His observations are gross exaggerations of the physical condition of 

Respondent. For example, his representations that Respondent's arms shook while 

reaching are not credible. My personal observations of Respondent clearly contradict the 

representations contained in that testimony and written statement. 

Nevertheless, the Respondent's own physician, Robert Graham D.O. could not 

conclude Respondent lacked sufficient physical dexterity or was otherwise incapable of 

performing any of the physical tests prescribed by the IO. 

However, simply identifying a condition and its potential debilitating effects does 

not prove physical incompetence. Furthermore, the physical evaluation guidelines of 

Navigation and Inspection Circular 2-98 do not establish absolute standards of physical 

incompetence. See CDOA 2547 (Picciolo)[NVIC 6-89]. There must be evidence on the 

record that tends to prove that the Appellant is unable to perform the required duties 

expected of a holder of a license or document. 

The evidence on this record is insufficient for me to conclude Respondent is 

physically incompetent. 

This charge and specification is not proven and is therefore dismissed. 

Conclusion and Sanction 

I have concluded that all of the charges in the complaint except for the allegation 

of physical inc01;npetence have been proven. Given the nature and severity of the charges, 

I conclude Respondent's License is to be suspended for a minimum of six (6) months. 

Respondent's License will be forwarded to the Marine Safety Office, Sault Ste 

Marie for safe keeping during the period of suspension. 

Service of this Decision upon Respondent serves to notify you of your right to 

appeal as set forth in 33 CFR Subpart J, §20.1001. (Attachment I) 

Dated: July 11, 2001. 

Decision and Order - 10 

EDWIN M. BLADEN 

Administrative Law Judge 
UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD ) Docket No. S&R 00-0366 

vs. 

RICHARD EDWIN COOK, 

Respondent. 

) Coast Guard Case No. P A 00 000989 

) 

) 

) 

) 

) 

ORDER REOPENING THE RECORD AND 

AMENDING THE DECISION AND ORDER 

Respondent has petitioned this Court to amend the Decision and Order in this 

matter to provide for a sanction, which takes into account the earlier eleven month 

voluntary deposit of his license with the Court. Essentially, Respondent seeks to offset 

the six month outright suspension with credit for the time his license was held by the 

Court and unavailable to him for employment. The petition was filed on July 17, 2001 

and the Decision and Order was entered on July 11, 2001. 

Respondent rests his request upon Federal Rule of Civil Procedure 60(b )

1 which 

sets forth "a general, flexible standard for all petitions brought under its equity provisions 

in sub-rule (5). See Rzifo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). 

Respondent says it is only fair and equitable to take this time into account because he has 

been deprived of his license and the coincident inability to work at his profession as a 

master of uninspected towing vessels on the Great Lakes. 

The Coast Guard strongly objects to the request arguing that much of the time 

between when Respondent's license was deposited and the time of the decision in this 

case, were his own fault and thus he should not be accordingly rewarded. Moreover, it is 

argued that for the disciplinary proceedings of this type to have any meaning, a mariner 

found responsible for misconduct, negligence and violation of law or regulation should 

have an appropriate sanction imposed and it be served. The disciplinary system would 

break down and become meaningless if mariners such as Respondent could essentially 

get away with it. And, finally, they say that Respondent was not deprived of any ability to 

earn a livelihood since he could have and likely did work during this time but not as a 

Master. 

1 Respondent relies upon 30 CFR §20.103(c) wh 

Federal Rules of Civil Procedure apply. 

Order Reopening the Record and 

Amending the Decision and Order - 1 

OPTIONAL FORM 99 (7-90) 

FAX TRANSMITTAL 

From 

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GENERAL SERVICES ADMINISTRATION 
Fed. R. Civ. P. 60[b] is inapplicable. Under Rufo, in order to grant a Rule 

60(b)(5) motion to modify a court order, a district court must find "a significant change 

either in factual conditions or in law." 502 U.S. at 384. Modification "may be warranted 

when changed factual conditions make compliance with the decree substantially more 

onerous." 

Modification is also appropriate when a decree proves to be unworkable because 

of unforeseen obstacles, or when enforcement of the decree without modification would 

be detrimental to the public interest. Rufo (citations omitted). In addition, an order must 

be modified if compliance becomes legally impermissible. Rufo. at 388. Relief from a 

court order should not be granted, however, simply because a party finds it inconvenient 

to live with. Even if this rule were applicable, which I find it is not, I must also say I am 

not persuaded by the claimed equities given the Respondent's refusal to comply with a 

previous Court request to undergo a medical evaluation. That refusal not only 

complicated the hearing but delayed it as well. I thus turn to my authority under the 

Coast Guard administrative and procedural rules. 

At first, I was unsure of my authority and had requested the parties suggest to me 

appropriate citations of my powers to do what was requested. After closer examination 

of the rules I found that an Administrative Law Judge [ALJ] was granted broad powers 

pursuant to 33 CFR §20.904 with respect to reopening the record. A fair reading of that 

rule compels me to conclude I may address Respondent's request as one to reopen the 

record for the purposes of taking information regarding the appropriate sanction to be 

imposed. Since Respondent's request was made within 30 days or less following 

issuance of the Decision and Order, I believe I retain power and jurisdiction to modify, 

revise, or rescind the Decision and Order once the record is reopened. 

Consequently, the record is reopened for that limited purpose. 

Because 46 CFR §5.567(a) authorizes an ALJ to issue an order of suspension 

upon finding the Coast Guard's allegations proved, the time of the period of outright 

suspension is normally to commence upon surrender of the license, certificate or 

document to the Coast Guard. See 46 CFR § 5.567(e). In this case, the license was 

deposited 11 months ago, so the question before me is whether Respondent should have 

received credit for the time period in which he did not have use of his license based on 

the voluntary deposit. In short, the suspension under a fair reading of the rule suggests 

that the suspension commenced on August 15, 2000, the date of the deposit. 

Additionally, this deposit appears to have been compelled by the previously 

assigned ALJ pursuant to his order of August 2, 2000. The Coast Guard admits as much 

in its submission of August 6, 2001 when reference is made to the direction to 

Respondent to undergo a medical evaluation. Thus, the deposit was not entirely 

voluntary. 

Order Reopening the Record and 

Amending the Decision and Order - 2 
The Coast Guard's argument that Respondent was found responsible for 

violations of the disciplinary rules should serve the appropriate sanction is 

understandable, but fails to take into account for the time this particular mariner has been 

without a license. 

Even though much of the delay to a final decision was brought about by 

Respondent's recalcitrance to agree to a settlement, it was his right to do so. In effect he 

suspended himself. He took himself away from commanding a towing vessel on the 

Great Lakes. I am sure it did not go unnoticed among his fellow mariners that he could 

not serve as a master and presumably was not employed as such during that time. But he 

had no special right to decline the ALJ' s suggested medical evaluation. 

In sum, Respondent has served only some of the time of the suspension. Credit 

cannot be given for the delay occasioned by the refusal to undergo a medical examination 

requested by the previous ALJ. To do so would countenance disrespect of an ALJ, which 

only encourages other mariners to think they "can get away with it. ,,2. 

I am therefore amending the Decision and Order in this cause to provide that 

Respondent's six-month suspension shall commence 0001, April15, 2001 and continue 

to and through 2400, October 14, 2001. I am also imposing a two month probationary 

period to commence at 0001 hours October 15, 2001 conditioned on Respondent 

providing to this judge no later than 1700, December 14, 2001 a certification from a duly 

licensed and competent physician knowledgeable in maritime medical matters that 

Respondent is physically capable of performing the duties of a master of uninspected 

towing vessels on the Great Lakes. Provision of such a certification shall terminate the 

probationary period. Failure to provide such a certification shall result in Respondent's 

license being suspended for three months commencing on April1, 2002 through June 30, 

2002. 

Respondent's license is currently in the possession of the MSO Sault Ste Marie. 

The MSO is directed to return the license to Respondent upon completion of the 

suspension periods and satisfactory compliance with the probation conditions set forth in 

this order. 

IT IS SO ORDERED. 

Dated: August 7, 2001. 

Edwin M Bladen 

Administrative Law Judge 

2 The fact that the Respondent followed the advise of counsel only makes more poignant the measure of the 

disrespect 

Order Reopening the Record and 

Amending the Decision and Order - 3