(.; J KU.t:lt;K::;UN 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

' ' 

United States of America · 

United States Coast Guard 

vs. 

Merchant Mariner's License 954670 

and Merchant Mariner's Document 

No. 056-44-2478 

Issued to: 

ANTHONY PASSARO 

Respondent 

APPEARANCES: 

LTJQ Lance Lindgren, 

LTJG Tim Callister, 

For the Coast Guard 

Anthony Passaro, Pro se 

For the Respondent 

BEFORE: lflon. Parlen L. McKenna 

Administrative Law Judge 

DECISION AND ORDER 

Docket No. 01-0423 

P A Case No. P AO 1 00 1111 

:.·· . .J 

·" J 

'·) 

This suspension and revocation proceeding was instituted by the United States Coast 

lf!JUUl/UlU 

: .' 

Guard in the discharge of its duty to promote the safety of life and property at sea. It was 

brought pursuant to the legal authority contained in 46 U.S. C. § 7701-7705 and was conducted in 

accordance with the procedural requirements of 5 U.S.C. § 551-559, Part 5 of Title 46 and Part 

20 Title 33 ofthe Code ofFederal Regulations (C.F.R.). 

The hearing in this matter commenced in Alameda, CA on Tuesday, November 20, 2001. 

LTJG Lance Lindgren and LTJG Tim Calister, USCG duly authorized Investigating Officers of 

Marine Safety Office, United States Coast Guard, appeared for and represented the Coast Guard. 

Respondent appeared personally and elected to represent himself. A record of the hearing was 

made by Reed & Associates, a certified court-reporting fum. A list of the witnesses who 

testified and the exhibits entered into evidence are set forth in the Attachment A. 

Respondent's Merchant Mariner's License No. 954670 and Merchant Mariner's Document No. 

056-44-2478 issued by the U. S. Coast Guard, was produced for identifi.cation and examination 

afterwhich it was returned to the Respondent (See Government Exhibit No. 1). 
03/19/02 14:57 C J ROBERSON 

On June 19~ 2001,. .;oast Guard filed a Complaint pursua 46 U.S.C. 7703 and 46 

C.F.R 5.27 charging the Respondent with Misconduct as follows: 

FACTUAL ALLEGATION: 

(1) That on the evening of February 8, 2001, while acting as duty engineer, you 

(Resjpondent) responded to an alarm indicating bigh water in the starboard forward 

bilge well at approximately 2245 and later at approximately 2320; 

l4l 002/010 

(2) That in response to each high water alarm, you (Respondent) pumped the bilge water 

directly overboard. Each of the two overboard discharges was a direct violation of 

Liberty Maritime Corporation's company restrictions on pumping bilges as set forth in ., ' ' ' 

· the Vessel Instruction Manual and the Chief Engineer's Standing Order. 

On June 27, 2001, the Respondent filed his Answer admitting to the jurisdictional and 

factual allegations in the Complaint. Respondent further requested to be heard on the Coast 

Guard1s proposed sanction of a twelve (12) months suspension, six (6) months outright, with the 

remaining six (6) months remitted on twelve (12) months probation. 

The fmdings of fact and conclusions of law which follow are prepared upon my analysis 

of the entire tecord, and applicable regulations, statutes, and case law. Each exhibit entered, 

although perhaps not specifically mentioned in this decision, has been carefully reviewed and 

given thoughtful consideration. 

FINDINGS OF FACT 

L Anthony Passaro, the Respondent, was at all times the holder of a duly issued Merchant 

Mariner's License No. 954670 and Merchant Mariner's Document No. 056-44-2478. His license 

was issued at San Francisco Bay, CA on March 26, 2001. It authorizes him to serve as: Chief 

Engineer (Limited-Oceans) Steam, Motor, or Turbine of not more than 1600 gross registered 

tons (Domestic Tonnage), 3000 Gross Tons (ITC Tonnage) of any Horsepower upon oceans; 

Also Chief Engineer of uninspected fishing industry vessels of any horsepower; Also First 

Assistant Engineer of Steam, Motor, or Turbine Vessels of any horsepower; Also designated 

Duty Engineer. (See Additional Endorsements) Steam, Motor, or Turbine Vessels of any 

horsepower. His document was issued at Los Angeles, CA and authorizes bim to serve as: OS, 

Any unlicensed rating in Engineer Department, Wiper, Respondent:s document expires on 

December 10, 2002 (See Government Exhibit No. 1). 

2. Timely and proper notice wa8 given to the Respondent ofthe date, time and place of hearing. 

3. Respondent was fully advised of his right to counsel and stated on the record that he wished to 

proceed pro~ (See November 20, 2001 TR at page 6). 

4. The RespOJldent filed an answer of "admit" to the Misconduct charge and the supporting 

allegations pursuant to 33 C.P.R. § 20.308. 

2 
03/19/02 14:58 C J ROBERSON I4J 003/010 

5. The vessel instructior. . _.ual for the Motor Vessel Liberty Wa, ... ,ecifically provides that 

discharge ofbilge water is prohibited except when the oil content of the effluent without 

pollution does not exceed 15 parts per million. Moreover, company procedures require that any 

pumping of bilge water over the side be accomplished through a completely functioning. oily 

water separator (OWS) (See Government Exhibit Nos. 6 and 7). 

6. The Responde~t was fully aware of this policy at the time he pumped the bilge water over the 

side bypassing the OWS (See November 20,2001 TR at page 94). 

7. The Responden~'s answer of"ad.mit" operates as an admission of all matters of fact as charged 

and constitute!! a waiver of all non-jurisdictional defects and obviates the requirement for 

establishing a prima facie case (AQpeal Decision No. 2363- Arnold; Appeal Decision No. 2376 

-Frank; ~al Decision No. 2458- German; and Appeal Decision No. 2480- Lett). 

8. The Respondent raised an affirmative defense that he was ordered to do the admitted acts ·of . 

misconduct by the frrst assistant engineer-- Mr. Harold Evans (See November 20, 2001 TR at 

page 95). Based on the entire evidence of record, the Respondent's affmnative defense is 

rejected. 

9. Mr. Evans t1::stified that he instructed the Respondent to pump ballast or clean ocean water 

from the duct keel directly over the side (See November 20,2001 TR at page 161). However, Mr. 

Evans emphatically denies ordering the Respondent to pump bilge (dirty water possibly 

containing oil) over the side bypassing the OWS (See November 20, 2001 TR at page 162). 

10. I fmd Mr. JBvans testimony to be credible. 

11. Mr. Evans testimony was supported by the .acting Chief Engineer Mr. Cle Collins(§~ 

November 20, 2001 TR at pages 117-124). 

12. I flnd Mr. Collins testimony to be credible. 

13. Mr. Evans testimony was supported by the Third Mate Mr. Richard Myles (See November 

20, 2001 TR at pages 76-92). 

14. I find Mr. Myles testimony to be credible. 

15. I fmd that 1he Respondent's testimony that he was instructed by the frrst assistant engineer 

Mr. Harold Evans to pump bilge water over the side bypassing the OWS is not credible. 

16. The Respondent has been fired or reprimanded on numerous occasions for failure to follow 

directions, inability to understand how to complete tasks, and failure to follow standard operating 

procedures (See Government Exhibit No. 12). Although the Respondent was not charged rmder 

46 U.S.C. § 7703 (Misconduct) for any of these firings, these actions/omissions sound very much 

like "failure to obey master's/shlp officer's order", "failure to obey master's written 

mstructions", and "improper performance of duties related to vessel safety". Each of these 

offenses carry a recommended sanction of 1-3 months of outright suspension under 46 C.F .R. § · 

5.569. 

3 
03/19/02 14:59 C J ROBERSON 

17. In its Complaint, the Coast Guard proposed a sanction of three (3) months outright 

suspension, plus six (6) months remitted on twelve (12) months probation.· 

[4J 004/010 

18. During the hearing, the Coast Guard requested a proposed sanction of a twelve ( 12) months 

suspension, six (6) months outright, with the remaining six (6) months remitted on twelve (12) 

months probation (See November 20, 2001 TR at pages 270-271). The Coast Guard stated that 

the basis for the increase in the proposed sanction was the Respondent's employment history and 

his unwillingness to accept responsibility for his actions. 

19. 46 C.F .R. § 5.569 provides for a suggested range of sanctions based upon specific charges. 

For the type of misconduct proven herein, the range calls for a 1-4 months suspension. However, 

this regulation is only a guide and the ultimate sanction may be increased or decreased by the 

judge based upon the facts of each case. 

20. Based upon all of the record evidence, I flnd that the Coast Guard's proposed sanction is 

reasonable and is hereby adopted. I fmd the Respondent's employment history to be quite 

troubling. Moreover, the Respondent's justification for his actions leads me to wonder whether 

he has willfully lied in this proceeding or is incapable of performing his job duties properly or 

both. Either way, there can be no doubt that the Respondent must complete assigned tasks as 

ordered, follow directions, and employ standard operating procedures or risk losing his 

profession. 

21. Duriri.g the hearing, I asked the Coast Guard to provide a diagram of the ship which included 

the duct keel, bilge tanks and pumping systems. That diagram was provided post-hearing and is 

hereby admitted into evidence (without objection) as Government Exhibit No. 14 (See November 

20, 2001 TR at pages 30 and 39). 

CONCLUSIONS OF LAW 

1. The Respondent and the subject matter of the hearing are within the jurisdiction vested in the 

United States Coast Guard by 46 U.s.c·. § 7703; the United States Administrative Procedure, 5 

U.S.C 551 et §lg.; 46 C.P.R. Part 5; and 33 C.P.R. Part 20. 

2. The charge and the underlying specification is proved by plea and separately by the 

preponderanc1~ of the evidence submitted at the hearing. 

3. The appropriate sanction in this case is a twelve (12) month suspension, six (6) months· 

outright, with the remaining six (6) months remitted on twelve (12) ·months probation. 

4. The Respondent's affirmative defense is hereby rejected based upon the weight of the record 

evidence. 

4 
03/19/02 14:59 C J ROBERSON 

DISCUSSION 

The Respondent was charged in this case with "Misconduct 11 which is deflned for the purposes of 

these remedial suspension and revocation proceedings in 46 C.P.R. § 5.27 as follows: 

""Misconduct" is human behavior which violates some formal, duly established 

rule. Such rules are found in, among other places, statutes, regulations, the 

common law, the general maritime law, a ship's regulation ·or order, or shipping 

articles and similar sources. It is an act which is forbidden or a failure to do that 

which is required. 11 

It was convincingly established by plea and separately by the preponderance of the evidence that 

on the evening of February 8, 2001, while acting as duty engineer, Respondent responded to an 

alarm indicat1ing high water in the starboard forward bilge well at approximately 2245 and later 

at approximately 2320. That in response to each high water alann, Respondent pumped the bilge 

water directly overboard. Each of the two overboard discharges was a· direct violation of Liberty 

Maritime Corporation's company restrictions on pumping bilges as set forth in the Vessel 

Instruction Manual and the Chief Engineer's Standing Order. 

The Respondent's prior disciplinary record, maintained by the U.S. Coast Guard, indicates a 

negative prior record. However, the Coast Guard submitted into evidence a summary of letters 

concerning Respondent's history of employment terminations (See Government Exhibit No. 12). 

As noted above, this history is quite troubling to say the least. 

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it 

is 

ORDERED 

THAT Merchant Mariner's License No. 954670 and Merchant Mariner's Document 

No. 056·44-2478 issued to Anthony Passaro, the Respondent herein, and all other 

valid licenses and/or documents issued to him by the United States Coast Guard, or 

any predecessor authority, now held by him, are hereby suspended for twelve (12) 

months, six: ( 6) months outright (effective the date of the issuance of this Decision 

and Order) with the remaining six (6) months remitted on twelve (12) months 

probation. 

Done and Dated this 19h day of March, 2002 

Alameda, California 

Copy: 

Hon. PARLEN L. MCKENNA 

Administrative Law Judge 

MSO SF Bay 

CGDll(m) 

.-... · .. 

' ... , ... 

ALJ Docketing Center 

s