UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

COMPLAINANT, 

vs. 

Docket No. 00-0207 

P A No. 00000537 

License No. 868019 

Issued to: DECISION AND ORDER 

KENNETH J. PICHOFF 

Respondent 

Before: Archie R. Boggs 

Administnitive Law Judge 

PRELIMINARY STATEMENT 

This proceeding is brought pursuant to the authority contained in 5 USC 551-559; 46 

USC Chapter 77; 46 Code of Federal Regulations, Parts 5 and 16; and 33 CFR Parts 20 and 95. 

Kenneth J. Pichoffwas served originally with a Complaint dated 20 March 2000. That 

Complaint alleged statutory authority as "46 USC 7704 (c)" "Use of or Addiction to the Use of 

Dangerous Drugs" and regulatory authority as 46 CFR 5.35. 

The factual allegations read as follows: 

"Use of or Addiction to the Use of Dangerous Drugs" 

"1. The Coast Guard alleges that on March 4, 2000 the Respondent refused to 

submit a post accident urine sample to L&L Marine Transportation personnel in 

violation of company policy." 
2 

· On 13 June 2000 the Investigating Officer amended the Complaint, adding a 

Misconduct allegation with statutory authority listed as "46 USC 7703" and regulatory 

authority as "46 CFR 5.27." 

For the Use of or Addiction to the Use of Dangerous Drugs Complaint the Coast Guard 

"alleges that on March 4, 2000 the Respondent refused to submit a post accident urine sample 

to L&L Marine Transportation personnel in violation of company policy." 

The Misconduct allegation is that "on March 4, 2000 the Respondent wrongfully 

deserted the towboat Jeanne Marine.'' 

LCDR Andrew Norris presented-the-ease for the Coast Guard. Robert K. Lansden, 

attorney at law, 153 W. Pine Street, Suite 2, Pontchatoula, LA 70454, represented the 

Respondent. 

The Respondent, through his attorney filed an answer in which he denied the 

jurisdictional and factual allegations, and he requested a hearing. 

A hearing was held at the Marine Safety Office, 1615 Poydras Street, New Orleans, LA 

70130, on 12 and 19 July and 13 and 27 September 2000. 

In support of the Complaint the Investigating Officer introduced into evidence the 

testimony of Michael Hebert, who is with operations for L&L Marine Transportation, Inc., 

1300 Peters Road, Harvey, LA. 

The Investigating Officer also introduced five (5) exhibits. 

I.O. Exhibit No. 1 -a copy of a page from the daily boat log of the 

Lillie Louise for 3 March 2000. 

I.O. Exhibit No. 2- a copy of a notice to employees of L&L Marine 

Transportation, Inc., which list seven (7) company rules together with 

a signed employee statement by Mr. Pichoff on 6 March 1997, 

acknowledging receipt of the rules. 

I.O. Exhibit No. 3 - a completed application for employment with 

L&L Marine Transportation, Inc., which was executed by Mr. Pichoff 

on 6 March 1997. 
I.O. Exhibit No. 4 - a detail of telephone charges to L&L Marine 

Transportation, telephone number 416-1181, for usage from 28 

February through 9 March 2000. 

I.O. Exhibit No. 5 - additional lists of charges for usage of the same 

telephone for numerous days. 

After Mr. Hebert testified the Respondent moved for a dismissal ofboth charges 

3 

contending that a prima facie case had not been established in connection with either of the 

allegations. The Administrative Law Judge took the matter under advisement and subsequently 

notified the parties that a defense would be required only in connection with the desertion 

charge - a prima facie case not having been made with regard to the use of or addiction to the 

use of dangerous drugs. 

Mr. Pichofftestified in his own defense. He called two witnesses; (1) Arlene Edge, a 

friend ofhis for over 40 years, and (2) Milton Francis Spencer, who also holds a towboat 

Captain's license. He introduced twelve (12) exhibits. 

Respondent Exhibit A- a blank Coast Guard form, CG 2692B, ( 1-91 ), 

"Report of required chemical drug and alcohol testing following a serious 

marine incident." 

Respondent Exhibit B- a one page letter addressed to LT Keene, U.S. 

Coast Guard, New Orleans, dated 9 March 2000 from Mike Hebert "Reincident MN Jeanne Marie and MIT Crudesun D/ A: March 4, 2000" 

together with a completed report of accident form, CG 2692, which was 

filed by Mr. Hebert at an Investigating Officer's direction on 9 March 

2000. 

Respondent Exhibit C- copies of six pages from the daily boat log of the 

Jeanne Marie. 

Respondent Exhibit D- a "Policy Letter" from Commandant, U.S. Coast 

Guard, dated September 1, 2000 with the subject "Watchkeeping and 

Work Hour Limitations on Towing Vessels, Offshore Supply Vessels 

(OSV) and Crew Boats Utilizing the Two Watch System. (5 pages). 
Respondent Exhibit E- a letter dated August 4, 1999 addressed to the 

Officer in Charge, Marine Inspection, New Orleans, signed by Carl 

LeBouef. 

Respondent Exhibit F- two documents from the Louisiana Secretary of 

State entitled "selective business detail data," for L&L Marine 

Transportation, Inc.· 

Respondent Exhibit G - a one page letter from the Marine Safety Office, 

Morgan City, entitled "12 in 24 rules clarified." 

Respondent Exhibit H- a chart of the Mississippi River, No. 11370, from 

New Orleans to Baton Rouge, Louisiana. 

Respondent Exhibit I - copies of 3 more pages from the logbook of the 

Jeanne Marie. 

Respondent Exhibit J - a copy of a AMA Launch Service record showing 

that a Coast Guard person boarded the MN Crudesun at 0900 on 4 March 

2000 and departed the vessel at 1140 on the same day. 

Respondent Exhibit K- a publication entitled "Mariners Speak Out on 

Violation of the 12 hour workday," which is a compilation of numerous 

letters from mariners alleging violations of the 12 hour work rule. 

In rebuttal, the Investigating Officer called Gary Lerille, who is also an 

employee of L&L Marine. 

FINDINGS OF FACT 

4 

1. At approximately 0724 on 4 March 2000 the tugboat Jeanne Marie was up bound on the 

Mississippi River in the vicinity ofiNCP, St. Rose, LA, pushing two loaded hopper barges 

ahead. 

2. Kenneth Pichoff, the Respondent, was the operator in charge of the tow. 

3. A coupling broke on the tow causing one of the barges to slide alongside the MN 

Crudesun, which was at anchorage. 

4. As a result of sliding against the tanker paint scrapings were left on the hull of the 

Crudesun. 
5 

5. Captain Pichoffnotified Michael Hebert, who was on duty at L&L Marine, of the incident. 

6. Mr. Hebert asked Captain Pichoff if the Coast Guard had been notified and he replied in 

the negative stating that after surveying the M/V Crudesun with the pilot of that vessel 

they decided that there was nothing to report so they went on about their business. 

7. Mr. Hebert instructed Captain Pichoff to "log it in his book and wait for his tug service." 

& Mr. Hebert and the Respondent spoke to each other by telephone later on that mornirig at 

which time Mr. Hebrert told Mr. Pichoff to "go back up to the fleet light boat and I'll meet 

you there and assist you in filling out the incident report and we are going to take a drug 

screen." 

9. Mr. Hebert testified that he informed Mr. Pichoff about the drug screen because "the 

incident that led up to that ..... a lot of things just didn't sound right. There was some 

apprehension on my part. Things just weren't being coherent the way I would have 

expected them to be and a lot of things didn't add up." (There is no explanation by Mr. 

Hebert as to what he meant by this testimony.) 

10. Captain Pichoffthen took his vessel to the upper St. Rose Fleet. 

11. He (Pichoff) had been on duty since 1800 on 3 March 2000 and he was scheduled to have 

been relieved at 0600 on the day of the allision. He had been on duty more than 13 hours. 

12. When he arrived at upper St. Rose Fleet he secured the vessel and left, after more than 15 

hours of duty. 

13. Two deckhands were on board. 

OPINION 

There are two sets of regulations governing Coast Guard procedures for drug testing: 

(1) 46 CFR Part 16 entitled "Chemical Testings" and (2) 33 CFR Subchapter F, Part 95, 

entitled "Operating a Vessel while Intoxicated." (N.B.) While 33 CFR, Part 95, is primarily 
6 

directed to intoxication due to excessive use of alcohol as the title indicates, some reference in 

this Part is made to chemical testing for evidence ofuse of prohibited drugs. 

46 CPR Part 16, which empowers the Coast Guard to conduct chemical testing of 

personnel, lists five (5) different categories for drug testing as follows: 

I) Pre-employment (46 CPR 16.210) 

2) Periodic (46 CPR 16.220) 

J) Random (46 CPR 16.230) 

4) Serious Marine Incident (46 CPR 16.240 and 

5) Reasonable Cause Testing ( 46 GFR 16.250) 

Both the Respondent's counsel and the Investigating Officer acknowledged, and the 

Administrative Law Judge agreed, that the incident involving Mr. Pichoffs operation of the 

Jeanne Marie on 4 March 2000 was not a "serious marine incident" as defined in 46 CPR 

16.240. Mr. Hebert testified that he did not complete form CG 2692 until directed to do so by 

the Coast Guard on 9 March 2000 because there was no ""serious marine incident." 

46_ CPR 16.240 provides as follows: 

"16.240 Serious marine incident testing requirements. 

The marine employer shall ensure that all persons directly involved in a 

serious marine incident are chemically tested for evidenqe of dangerous 

drugs and alcohol in accordance with the requirements of 46 CPR 4.06." 

A serious marine incident" is defined in 46 CPR 4.03-2 as follows: 

"The term serious marine incident includes the following events involving a 

vessel in commercial service: 

(a) Any marine casualty or accident as defined in 4.03-1 which is required 

by 4.05-1 to be reported to the Coast Guard and which results in any of 

the following: 

(1) One or more deaths: 

(2) An injury to a crewmember, passenger, or other person which 

requires professional medical treatment beyond first aid, and, in the 

case of a person employed on board a vessel in commercial service, 

which renders the individual unfit to perform routine vessel duties; 

(3) Damage to property, as defined in 4.05-1(a)(7) of this part, in excess 

of $1 00,000; 
(4) Actual or constructive total loss of any vessel subject to inspection 

under 46 USC 3301; or 

(5) Actual or constructive total loss of any self-propelled vessel, not 

subject to inspection under 46 USC 3301, of 100 gross tons or more. 

(b) A discharge of oil of 10,000 gallons or more into the navigable waters of 

the United States, as defined in 33 USC 1321, whether or not resulting 

from a marine casualty. 

(c) A discharge of a reportable quantity of a hazardous substance into the 

navigable waters of the United States, or a release of a reportable 

quantity of a hazardous substance into the environment oft he United 

States, whether or not resulting from a marine casualty." (emphasis 

supplied) 

7 

It was the Investigating Officer's contention that although there was no "serious marine 

incident," Mr. Pichoffwas required to submit to a "reasonable cause" drug test under the 

provisions of 33 CPR 95.035. 

There are two "reasonable cause" definitions in the regulations. 

(1) 46 CFR 16.250 provides as follows: 

Reasonable cause testing requirements. 

(a) Th~ marine employer shall require any crewmember engaged or 

employed on board a vessel owned in the United States that is 

required by law or regulation to engage, employ or be operated by an 

individual holding a license, certificate of registry, or merchant 

mariner's document issued under this subchapter, who is reasonably 

suspected of using a dangerous drug to be chemically tested for 

dangerous drugs. 

(b) The marine employer's decision to test must be based on a 

reasonable and articulate beliefthat the individual has used a 

dangerous drug based on direct observation of specific, 

contemporaneous physical, behavioral, or performance indicators of 

probable use. Where practicable, this belief should be based on the 

observation of the individual by two persons in supervisory 

positions. 

(c) When the marine employer requires testing of an individual under 

the provisions of this section, the individual must be informed ofthat 

fact and directed to provide a urine specimen as soon as practicable. 

This fact shall be entered in the vessel's official log book, if one is 

required. 

(d) If an individual refuses to provide a urine specimen when directed to 

do so by the employer under the provisions of this section, this fact 

shall be entered in the vessel's official log book, if one is required. 
(2) 33 CFR 95.035(a)(l) provides as follows: 

"(a) Only a law enforcement officer or a marine employer may direct an 

individual operating a vessel to undergo chemical test when reasonable 

cause exists. Reasonable cause exists when: 

( 1) The individual was directly involved in the occurrence of a marine 

casualty as defined in Chapter 61 ofTitle 46, United States Code," 

8 

46 USC 61 01 does not define a "marine casualty." That section provides for "marine 

casualties and reporting." 

46 USC 6101 (a) and (b) read as follows: 

"(a) The Secretary shall prescribe-regulations on the marine casualties 

to be reported and the manner of reporting. The regulations shall require 

reporting the following marine casualties: 

( 1) death of an individual 

(2) serious injury to an individual 

(3) material loss ofproperty 

( 4) material damage affecting the seaworthiness or efficiency of the 

vessel 

(5) significant harm to the environment 

(b) A marine casualty shall be reported within 5 days as provided in this 

part and regulations prescribed under this part. Each report filed under 

this section shall include information as to whether the use of alcohol 

contributed to the casualty." 

The incident in which Mr. Pichoffwas involved on 4 March 2000 does not fall within 

any one of the categories listed above to be reported. Furthermore, a question arises as to 

which "reasonable cause" definition should apply. 

It was not until 9 March 2000- 5 days after the incident -- did Mr. Hebert submit a 

completed form CG 2692 at the direction of a Coast Guard Investigating Officer. He had five 

days to investigate the matter and inspect any damage that may have existed to the vessels 

involved. On the form he described the "damage to barge" as "2 to 4 foot of red paint from 

rubbing against the MN Crudesun." (Block 26k). He listed the damage amount to the barge as 
9 

"N/A" (Block 26j). Mr. Hebert testified that several days after the incident he got word from 

a company representative that the damage was insignificant. (Tr. Page 67) 

In section IV number 44 in answer to the instruction "describe how accident occurred, 

damages, information on alcohol/drug involvement and recommendations for corrective safety 

measures," Mr. Hebert's entry is "coupling broke while topping around on barge CC97522 

which laid against the MIV Crudesun (port side)." 

· As heretofore stated, a prima facie case was not established and the Complaint with 

regard to Use of or Addiction to the Use of Dangerous Drugs was dismissed when the 

Investigating Officer rested his case. 

It is important that the federal government's drug testing program be administered so as 

to eradicate the use of drugs in the American workplace. However; it goes without saying, the 

program must be administered with justice and fairness to each person tested, or directed to be 

tested. 

The employer's function in the drug testing procedure is a vital link. The collector's 

function is a vitallinlc The laboratory's function is a vital link. The medical review officer's 

function is a vital link. All of the persons involved in the procedure must strictly abide by the 

regulations. 

Mr. Pichoffholds a sixth issue of a license which he received at the time the Coast 

Guard first required tow boat operators to be licensed. He was "grandfathered in." Obviously, 

he must have taken numerous drug tests during his years of operating tow boats. 

With regard to the misconduct Complaint, alleging desertion of the Lillie Louise on 5 

March 2000, both of the Investigating Officer's witnesses testified that they did not consider 

Mr. Pichoff deserted the vessel, because he had completed his 12 hour watch and the vessel 

was safely secured with a deckhand remaining on board. Both Mr. Hebert and Mr. Lerille 
10 

testified that it is permissible for operators to leave their vessels after completion of 12 hour 

watches. 

In his application for employment with L&L Marine Transportation, Inc,. on 7 March 

1997 (Investigating Officer Exhibit No. 7) the following provision is made. "I understand that 

if employed, my employment will.be for an indefinite period oftime, and that I may terminate 

my employment at any time for any reason, and the company may do likewise. I further 

understand that no representative of the company has authority to enter into any agreement to 

the contrary unless such agreement is in writing and is signed by the President ofthe 

company." (This may not be good policy-but that is the company's decision.) 

ORDER 

The Complaint alleging use of or addiction to the use of dangerous drugs and the 

desertion of the MN Lillie Louise on 5 March 2000 is dismissed. 

RULINGS ON THE COAST GUARD'S 

PROPOSED FINDINGS OF FACT 

AND 

CONCLUSIONS OF LAW 

ACCEPTED 

1. Respondent, Mr. Kenneth Pichoff, is the holder of Coast Guard license number 868019 

(Respond. A). 

ACCEPTED, but both of the Investigating Officer's 

witnesses testified that they did not consider 

Respondent deserted the vessel. 

2. On March 6, 1997 Respondent signed a L&L Marine Transportation "Notice to 

Employees" in which he acknowledged that leaving an assigned vessel at any time 

during a voyage and/or hitch for any reason whatsoever without permission from the 

office is strictly prohibited. This policy applies to the on and off watch. L&L Marine 

Transportation considers adherence to those rules as mandatory and essential for the 

safety of their employees and the safe operation of the vessel to which they are 

assigned. (Govt. 2).\ 
11 

ACCEPTED 

3. Respondent began working a 14 day on I 7 day off hitch onboard the Jeanne Marie on 

February 22, 2000 (KP). 

ACCEPTED 

4. Respondent worked days (the 0600 - 1800 watch) from February 22-28. Respondent 

worked nights (the 1800 - 0600 watch) from February 29 -March 4 (KP). 

ACCEPTED 

5. Respondent was twelve days into his fourteen-day hitch by March 4, 2000 (KP). 

ACCEPTED 

6. Respondent claims that he worked beyond twelve hours during three of the five days 

preceding March 4, 2000 and on numerous other occasions while employed by L&L 

Marine Transportation (KP). 

ACCEPTED 

7. Respondent had never quit working for L&L Marine Transportation before, despite 

being forced to work more than twelve hours in a 24-hour period on numerous 

occasions (KP). 

ACCEPTED 

8. The entire crew of the Jeanne Marie quit on March 3, including the captain Respondent 

relieved and who in tum was supposed to have relieved Respondent at 0600 on March 

4, 2000. 

ACCEPTED 

9. Respondent knew that the previous crew, including the captain who was supposed to 

have relieved him at 0600 on March 4, 2000 had quit when he assumed his duties 

aboard the Jeanne Marie on March 3, 2000- 1800 (Govt. 1, T105-106). 

Mr. Mike Hebert 

ACCEPTED 

1. Mr. Mike Hebert works in operations at L&L Marine and his duties include "hiring and 

firing of crews, physicals, and drug screens" (T6). 
12 

ACCEPTED 

2. Mr. Mike Hebert stands "duty" for L&L Marine every third weekend (T107,GL). 

ACCEPTED 

3. Mr. Mike Hebert was on duty on March 4, 2000 (T7). 

ACCEPTED 

4. During duty weekends, Mr. Hebert is not only authorized, but also expected to handle 

all crises that arise (Tl07). 

Mr. Gary Lerille 

-AGCEF-'1'-ED 

1. Mr. Gary Lerille did not have a title for his position with L&L Marine Transportation 

but stated that he did "everything" from ensuring towboats were adequately crewed to 

dispatching vessels and payroll. 

ACCEPTED 

2. Mr. Gary Lerille stands duty for L&L Marine Transportation every third weekend (GL). 

ACCEPTED 

3. Mr. Gary Lerille was on vacation in Disneyland- Orlando, Florida, from March 2-7, 

2000 (GL). 

ACCEPTED 

4. Mr. Gary Lerille did not initiate or receive any work related phone calls while he was 

on vacation (GL). 

ACCEPTED 

5. Mr. Gary Lerille did not make any phone calls at a:ll from his mobile phone on March 4, 

2000 (Govt. 4). 

ACCEPTED 

6. Mr. Gary Lerille did not speak with Respondent at all while he was on vacation from 

March 2-7, 2000. 
13 

Jeanne Marie 

ACCEPTED 

1. The Jeanne Marie is a 55~ft., 98 gross ton towboat owned by L&L Marine 

Transportation (Resp. B). 

ACCEPTED 

2. The Jeanne Marie is equipped with NEXTEL radio/cellular phone set (GL). 

ACCEPTED 

3. The radio function is the preferred method to communicate to or from the Jeanne Marie 

since L&L Marine pays a flat rate for this function (GL). 

ACCEPTED 

4. The effective range of the NEXTEL radio function from L&L Marine Transportation's 

dispatch office is to Pascagoula, Mississippi (GL). 

ACCEPTED 

5. The cellular phone function must be used whenever the Jeanne Marie, or its intended 

recipient is further east than Pascagoula, MS (GL). 

ACCEPTED 

6. The cellular phone records from the Jeanne Marie confirmed that no phone calls were 

made from the Jeanne Marie to Mr. Gary Lerille while he was on vacation· at 

Disneyland- Orlando, Florida, from March 2~7 (Govt.5). ' 

March 4, 2000 

ACCEPTED 

1. On March 4, 2000 Respondent worked for L&L Marine Transportation Incorporated 

under the authority of his license as a relief pilot onboard the towboat Jeanne Marie 

(Resp. A, Govt. 1). 

ACCEPTED 

2. On March 4, 2000 at approximately 0724, the Respondenl was at the helm of the 

towboat Jeanne Marie and pushing two barges headlong, in the vicinity of IMTT St. 

Rose (Lower Mississippi River Ml18.5), when a coupling broke on the barge 97522 

9Govt. 1). 
ACCEPTED. However the Investigating Officer's 

principal witness, Mr .. Hebert did not categorize 

the incident as a collision. He described it as 

"coupling broke while topping around on 

Barge CC97522 which laid against 

The MN Crudeson (port side)." 

14 

3. The broken coupling caused the barges to "top around" out of Respondent's control and 

collide with the TIS Crudeson (Govt. 1, KP). 

ACCEPTED as to (1) and (2) 

with regard to (3) Mr. Hebert's words were 

"we are going to take a drug screen." 

4. Respondent and Mr. Hebert spoke about the collision between the tow of the Jeanne 

Marie and the T/S Crudeson between 1000-J030 the morning of March 4th. During the 

conversation, Mr. Hebert told Respondent to do the following three things. 

(1) drop off the barges 95522 and the 9555B at GNOTS Fleet as·planned. 

(2) Take the Jeanne Marie lightboat to the Upper St. Rose Fleet and 

(3) Wait for him there so he can assist him in filling out an accident report and be 

administered a drug test (Tl 0). 

NOT ACCEPTED. Mr. Hebert didn't see the log 

until long after the conversation 

5. Mr. Hebert ordered Respondent to be drug tested in good faith based upon his: 

(1) understanding of the incident as related by Respondent, who with his own hand 

logged "damaged tie mark on" Crudeson in the official log (Govt. 1), and 

(2) general uncertainty about the actual extent of damage done as a result of this 

collision (T18, 64-65). 

ACCEPTED, but Mr. Hebert made no effort 

on his own to ascertain if there was any damage. 

6. Mr. Hebert did not know the true extent of the damage to the Crudeson until several 

days later (T67). 

ACCEPTED 

7. Respondent delivered the barges 97522 and the 9555B to GNOTS Fleet as he was 

directed to do by Mr. Hebert (KP). 

ACCEPTED 

8. Respondent departed GNOTS Fleet at 1000 the morning of March 4th (KP). 

9. 
15 

ACCEPTED 

10. The Upper St. Rose Fleet is located at Lower Mississippi River M127, eight miles 

upriver from GNOTS Fleet (Resp. G). 

ACCEPTED 

11. Respondent arrived at the Upper St. Rose Fleet, as he was directed to do by Mr. Hebert, 

some time before 1200 on March 4th (T14-16). 

ACCEPTED 

12. Mr. Hebert arrived at the Upper St. Rose Fleet at approximately 1200 the moming of 

March 4th (T14-16). · 

ACCEPTED 

13. Mr. Hebert did not find Respondent at the Upper St. Rose Fleet when he arrived (T14-

16). 

ACCEPTED in part. Paragraph (1) not accepted. 

14. Mr. Hebert fully expected to meet Respondent at the Upper St. Rose Fleet since 

Respondent 

(1) agreed to wait for him there and be drug tested (T17). 

(2) Lived aboard the Jeanne Marie during his hitch, both on and off duty (T14-15). 

(3) Never informed him that he intended to quit the service ofthe Jeanne Marie (T105) 

and 

(4) Was never granted permission to leave the Jeanne Marie (T104). 

ACCEPTED. 

15. Mr. Hebert searched the Jeanne Marie and discovered that Respondent took his 

belongings with him (T12). 

ACCEPTED 

1.6. Mr. Mike Hebert called Respondent numerous times on March 4, 2000 in an effort to 

determine his whereabouts. Respondent did not answer any of these calls (T12-14). 

ACCEPTED 

17. Mr. Mike Hebert continued attempting to contact Respondent through March 9, 2000 

with no scucess (T12-14). 
16 

ACCEPTED 

18. Respondent departed his home for Texas early in the morning of March 5th and signed 

on as captain of the towboat Big Jo at 1200 (KP). 

ACCEPTED 

19. Respondent never returned to work at L&L Marine Transportation after March 4, 2000 

(KP). 

ACCEPTED that he didn't take a drug test 

19. Respondent never took the drug test as ordered as a result of this incident (KP). 

RULING S ON RESPONDENT'S 

PROPOSED FINDINGS OF FACT 

AND 

CONCLUSIONS OF LAW 

ACCEPTED 

46 U.S.C. §7703 under the regulatory authority 46 C.P.R. 5.27 Misconduct. 

The Coast Guard alleges that on March 4, 2000, the wrongfully deserted the towboat 

Jeanne Marie. 

ACCEPTED 

At the hearing, the Investigating Officer presented the witness, Mike Herbert, an 

employee of L&L Marine. After Respondent presented his case, a rebuttal witness, Gary 

Lerille, was presented. The hearing was completed on 27 September 2000. During the course 

of several hours of testimony, both employees confirmed the following: 

Testimony of Mike Hebert on July 19, 2000, while under oath. 

ACCEPTED 

1. Page 16, Line 5 

Administrative Law Judge: 
17 

Q. Do licensed officers ordinarily leave the vessel when they're not on duty? 

A. We have a policy with out(r) captains. As long as they have dependable 

transportation. 

2. Page 90, Line 22 

Mr. Lansden: 

ACCEPTED 

Q. When a man has worked past his 12 hours, which was the case for Mr. 

Pichoff on March 3 and March 4, what is your company policy? 

A. Well the fact that.:Mr-.-·Pichoff didn't actually go to work until10:30 that 

night, I didn't consider itQ. I'm confused. You earlier stated that he went to workA. He came on watch at 6:00 that afternoon. 

Q. Are you contending to the Court that from 1800 to 10:30 a man on watch 

is not work? 

A. When the vessel's tied up, no, sir, I don't consider that work. 

Q. So, isn't it true, then, that if the vessel is safely tied up, that man doe~n 't 

need to be aboard the vessel? 

A. Yes, sir. 

ACCEPTED 

3. Page 133, Line 17 

Administrative Law Judge: 

Mr. Hebert, getting back to the Application for Employment, second to 

last paragraph, it states that I- this is the employee talking. "I may terminate 

my employment at any time for any reason, and the company may do likewise." 

What does that mean? 
18 

The Witness: 

It means he can quit anytime he wants. 

ACCEPTED 

4. From the USCG Exhibit No. 3: 

I understand that if employed, my employment will be for an indefinite period of time, 

and that I may terminate my employment at any time for any reason, and the company may do 

likewise. I further understand that no representative of the company has authority to enter into 

any agreement to the contrary unless such agreement is in writing and is signed by the 

President of the company. 

ACCEPTED 

5. Captain Kenneth Pichoffboarded the Jeanne Marie at 1800 3 March 2000. 

ACCEPTED 

6. At the time of the allison on 4 March 2000 at 0720, Captain Kenneth Pichoffhad 

been on watch for over 13 hours. 

ACCEPTED 

7. By 1300 hours 4 March, the Jeanne Marie was safely moored at Upper St. Rose. 

ACCEPTED 

8. That by 1300 hours 4 March, Captain Kenneth Pichoff had worked 18 hours 

with no relief. 

ACCEPTED 

9. That no relief was available for Captain Kenneth Pichoff. 
19 

ACCEPTED 

10. The allision on 4 March 2000 was not a serious marine incident. On September 

13, 2000, Captain Kenny Pichofftook the stand. The facts presented were as follows: 

ACCEPTED 

1. He had been forced to work in excess of 12 hours for several days. 

ACCEPTED 

2. The company failed to provide him a relief. 

ACCEPTED 

3. On 4 March, he was due a..relief at 0400. 

ACCEPTED 

4. The allison occurred on or about 0720. 

ACCEPTED 

5. At the time of the allision, he had been working over 13 hours. 

ACCEPTED 

6. After being directed to tie the vessel up safely at Upper St. Rose, he had been on 

watch for 18 hours with no relief. 

ACCEPTED 

7. The vessel was safely moored at Upper St. Rose. 

ACCEPTED 

8. He had reliable transportation. 

ACCEPTED 

9. He left the vessel safely moored with a deckhand aboard. 

ACCEPTED 

10. He understood he was an "at will" employee and had a right to quit after safely 

mooring the vessel. 
20 

On September 27, 2000, a rebuttal witness was brought forward, Mr. Gary 

Lerille, an employee of L & L Marine. The key facts presented in his testimony were 

the following: 

ACCEPTED 

1. The vessel was safely moored at Upper St. Rose fleet. 

ACCEPTED 

2. Leaving one deck hand aboard was acceptable. 

Dated __}_tL_ April 2001 

New Orleans, Louisiana 

ARCHIE R. BOGGS 

ADMINISTRATIVE LAW JUDGE