UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

EDMOND J. ORGERON 

Respondent. 

______________________________ Docket Number: CG S&R 04-0382 

CG Case No. 2117441

 

FINAL DECISION AND ORDER ON SANCTION

Issued: October 26, 2005

Issued by: Thomas E. P. McElligott, Administrative Law Judge

Appearances:

Lt. Ian Bird 

MST1 Jacquelyn Plevniak 

U.S. Coast Guard 

2901 Turtle Creek Drive 

Port Arthur, Texas 77640 

For the Coast Guard 

 

 

Michael R. Delesdernier, Esq. 

3632 N. Labarre Road 

Metairie, Louisiana 70002 

 

For the Respondent 
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PROCEDURAL HISTORY

 On November 4, 2004, a hearing was conducted in the above-captioned case. At that 

hearing, the Investigating Officer (hereinafter “IO”) improperly introduced evidence of 

Respondent’s prior Coast Guard record during the IO’s closing argument, after close of 

testimony. Since the IO was giving his final arguments when he made the statements regarding 

Respondent’s prior history, the IO was not placed under oath or subject to cross-examination. In 

my Decision and Order of March 31, 2005, I found the allegations of Misconduct and 

Negligence proved and decided to reconvene the hearing to receive evidence concerning 

Respondent’s prior record. The hearing reconvened on June 21, 2005, in Beaumont, Texas. 

In my Decision and Order dated March 31, 2005, I found that Respondent committed an 

act of Misconduct by operating a vessel beyond the limitations set by his license and three acts of 

Negligence by: (1) negligently performing duties related to vessel navigation by alliding with a 

facility while attempting to moor; (2) negligently performing duties related to vessel navigation 

by attempting to moor a vessel at a facility located 5.5 miles south of Respondent’s employer’s 

intended mooring; and (3) negligently performing duties related to vessel safety by failing to 

have crewmembers on deck for mooring. 

I. RESPONDENT’S PRIOR RECORD 

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

mandatory, an ALJ may consider the prior record of the respondent considering the period of 

time between prior acts and the act or offense at issue in the present case. 46 CFR 5.569(b)(2). 

Under 33 CFR 20.1315, the prior disciplinary record of a respondent includes the following: 

1. Any written warning issued by the Coast Guard and not contested by the 

respondent. 
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2. Final agency action by the Coast Guard on any Suspension and 

Revocation (S&R) proceeding in which a sanction or consent order was 

entered. 

3. Any agreement for voluntary surrender entered into by the respondent. 

4. Any final judgment of conviction in Federal or State courts. 

5. Final agency action by the Coast Guard resulting in the imposition against 

the respondent of any civil penalty or warning in a proceeding 

administered by the Coast Guard under this title. 

6. Any official commendatory information concerning the respondent of 

which the Coast Guard representative is aware. The Coast Guard 

representative may offer evidence and argument in aggravation of any 

charge proved. The respondent may offer evidence of, and argument on, 

prior maritime service, including both the record introduced by the Coast 

Guard representative and any commendatory evidence. 

At the hearing, the Coast Guard offered evidence of several prior incidents involving 

Respondent. (Tr. 4). To properly evaluate Respondent’s prior record, it is useful to consider 

each incident separately. 

On March 4, 2001 (Coast Guard Activity Nos. 228052 and 738991), Respondent failed to 

adequately maneuver his vessel and allided with the F/S NELVANA and the TUG CATHERINE 

B. (IO Ex. A). Subsequently, the Coast Guard filed a Complaint alleging Respondent 

committed an act of Negligence, and Respondent entered into a settlement agreement resulting in 

a two month suspension of his license stayed on twelve months probation. (IO Ex. A). As part 

of the settlement agreement, Respondent agreed to complete a bridge resource management 

course. (IO Ex. A). Respondent successfully completed the terms of the settlement agreement. 

(IO Ex. A). At the hearing, Respondent argued that there were mitigating circumstances, 

because the river was high from the spring thaw and he was underpowered. (Tr. at 6-7; 57-59). 

Since this incident resulted in a settlement agreement, it is properly considered as part of 

Respondent’s prior record. 33 CFR 20.1315(a)(3). 
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The Coast Guard argues that on November 18, 2003, Respondent while operating the 

towing vessel CAPT. LES BARRIOS misjudged the effect of the wind and collided with a 

mooring dolphin. (Tr. at 4-5, 11-13; IO Ex. B). At the hearing, Respondent stressed that the 

collision resulted in only very minor damage. (Tr. at 14, 60-61, 63). Respondent argued that the 

incident involved a blind landing and the collision was the result of poor information Respondent 

received from his lookout regarding the location of the mooring dolphin and its distance from the 

vessel. (Tr. at 59-60). Respondent also asserted that the light on the mooring dolphin was not 

working. (Tr. at 61, 86). However, this incident only resulted in an investigation by the Coast 

Guard, and the Coast Guard Investigating Officers did not serve a Complaint on Respondent 

regarding this incident. Consequently, no formal disciplinary action was taken against 

Respondent’s license. (IO Ex. B). Since this incident only resulted in an investigation report, 

this incident does not constitute a prior record as provided by 33 CFR 20.1315(a). Consequently, 

this incident will not be considered in determining an appropriate sanction for Respondent’s 

current acts of Misconduct and Negligence. 

The Coast Guard further argues that on February 19, 2004 (Coast Guard Activity Number 

2020428), Respondent was involved in a grounding of the UTB FREEDOM. (IO Ex. C; Tr. at 

14-19). However, whether Respondent was responsible for this incident is unclear. (Tr. at 43-

49, 53). Respondent argues that the other captain on the vessel, Mr. Tommy Purser, was at the 

helm when the grounding occurred and that when Respondent came on duty he found the vessel 

aground and Mr. Purser asleep at the wheel. (Tr. at 43-49, 53). Respondent also testified that 

Mr. Purser is a diabetic who frequently falls asleep at the wheel, and the company had placed a 

deckhand in the pilothouse with Mr. Purser to try to keep Tommy Purser awake. (Tr. at 43-49; 

91-97). Based on the Coast Guard’s reaction to this testimony, the Coast Guard appeared to be 
5

interested in investigating these allegations about Tommy Purser to determine whether any other 

legal action may be appropriate. 

However, for the purposes of this hearing, I do not need to resolve whose version of the 

facts is correct, because again this incident only resulted in an investigation by the Coast Guard 

Investigating Officers and did not result in any served Complaint against Respondent’s license. 

Therefore, this grounding does not constitute a part of Respondent’s prior record as provided by 

33 CFR 20.1315(a). If I were to consider this incident as part of Respondent’s prior record, I 

would be placed in the awkward position of having to make specific findings of fact and 

conclusions of law regarding this incident when a Complaint was never filed and served on 

Respondent against Respondent’s license for this incident. 

The Coast Guard also argues that on February 19, 2004 (Coast Guard Activity Number 

2009614), Respondent was involved in another grounding of the UTB FREEDOM. (Tr. at 25-

30; IO Ex. D). Again, Respondent argues that Captain Tommy Purser was serving at the helm 

controls when the vessel ran aground, and Respondent should not be held responsible for the 

incident. (Tr. at 6, 30, 52-54). As with the previous grounding, this incident again did not result 

in any disciplinary action or Complaint against Respondent’s license and does not warrant 

consideration as part of Respondent’s prior record. (IO Ex. D). See 33 CFR 20.1315(a). 

On April 2, 2004 (Coast Guard Activity Nos. 2037554 and 2040180), Respondent failed 

to report a loss of propulsion on the UTV FREEDOM and failed to comply with Coast Guard’s 

Vessel Traffic Service (VTS) Morgan City, Louisiana’s order for Respondent to wait for an 

assist tug before transiting the VTS zone in an under-powered vessel. (IO Ex. E). Respondent 

was given a letter of warning by the Coast Guard Investigating Officer, which he accepted, for 

violating 33 CFR 161.18 and the VTS User’s Manual. (IO Ex. E). At the hearing, Respondent’s 
6

attorney argued that he was unable to comply with VTS Morgan City’s order, because he lost an 

engine and could not stop the vessel. (Tr. at 36, 64-65). Respondent’s counsel also stressed that 

this incident did not involve a collision, allision, grounding, or unsafe navigation. (Tr. at 33). 

However, the Coast Guard argued that the Vessel Traffic Service (VTS) was intended to help 

prevent or minimize collisions or allisions, and a failure to comply with the VTS Morgan City’s 

orders is a safety issue. (Tr. at 37-38). Under 33 CFR 20.1315(a)(1), this letter of warning 

issued by the Coast Guard and not contested by the respondent is properly considered as part of 

Respondent’s prior record. 

Therefore, only two of the five incidents above meet the requirements of 33 CFR 

20.1315(a). As such, only the settlement agreement resulting from the allision with the F/S 

NELVANA and the TUG CATHERINE B and the letter of warning dated April 8, 2004 can be 

considered as Respondent’s prior record in determining an appropriate sanction in this matter. 

II. MITIGATING EVIDENCE 

Following the incident in the case at hand, Respondent did not work for a period of 

three months. (Tr. at 74). Although evidence at the first hearing indicated the Coast Guard 

advised Respondent that he should not work under his license until the case at hand was 

resolved, it is now clear that the Coast Guard did not so advise Respondent, but rather 

Respondent misunderstood the Coast Guard’s instruction not to operate vessels beyond the scope 

of his license. (Tr. at 75, 100-101). 

 Respondent is on the tenth issue of his license and until the last few years has had a clear 

and good record with the Coast Guard (Tr. at 88; Resp’t Ex. E). Additionally, Respondent has 

received good reviews from his employers. (Resp’t Ex, F, G, and J). 
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Respondent also presented evidence that his family would experience financial hardship 

if he was unable to work under his Coast Guard license. (Tr. at 40-42; 76-82; Resp’t Ex. K). 

Specifically, Respondent’s wife had a stroke and as a result Respondent and his wife fell behind 

in their mortgage, lost their house, and are currently living in a hotel. (Tr. at 39-41). 

III. SANCTION 

The selection of an appropriate order is the responsibility of the Administrative Law 

Judge (ALJ). 46 CFR 5.569(a). In accordance with 46 CFR 5.569(b)(2), an ALJ should 

consider a respondent’s prior records when determining whether revocation is the appropriate 

sanction for offenses for which revocation is not mandatory. For first time offenders, 46 CFR 

5.569 suggests a suspension of one to three months for Misconduct by failing to comply with a 

U.S. law or regulation, a suspension of two to six months for negligently performing duties 

related to vessel navigation, and a suspension for one to three months for negligently performing 

non-navigational duties related to vessel safety. Therefore, if Respondent had been a first time 

offender, the guidance would have suggested a total suspension between six to eighteen months. 

However, Respondent is not a first time offender, and under 46 CFR 5.569(d), orders for repeat 

offenders will ordinarily be greater than those specified in the Table of Suggested Orders. 

 The Investigating Officer argues that in the interest of public safety revocation is the 

appropriate sanction, because Respondent has had a number of accidents and over time the 

incidents have become more serious. (Tr. at 101). In response, Respondent requests the 

undersigned consider the time in which Respondent did not work under his license as part of his 

suspension time and a probationary period is appropriate. (Tr. at 101). Although I think 

revocation is too harsh in this particular case, I note that in the two prior records that I have 
8

considered the Coast Guard has attempted to remediate Respondent with measures such as 

probation, completion of a bridge management course, and a letter of warning, and these efforts 

have not had the desired effect. I believe the facts of this case demonstrate that Respondent has 

continued to make imprudent decisions and has not learned lessons from the prior incidents 

despite the Coast Guard’s efforts. Additionally, in the two prior incidents, Respondent took out a 

vessel he knew was under powered and luckily the incidents were not more serious. Following 

these incidents, Respondent then chose to operate a vessel that was beyond the scope of his 

license and he did so negligently. Therefore, a sanction more than probation is required. 

However, I acknowledge that Respondent is on the tenth issue of his license, for many years had 

an excellent clear record with the Coast Guard, and has received good reviews from his 

employers. (Tr. at 88; Resp’t Ex. E, F, G, and J). 

 At the hearing on the sanction, Respondent also presented evidence that his family would 

experience financial hardship if he was unable to work under his Coast Guard license. (Tr. at 40-

42; 76-82; Resp’t Ex. K). Although Respondent’s wife’s recent illness and his financial situation 

are relevant to determine how severely the sanction will impact Respondent and I have done so 

in this case, financial hardship alone cannot excuse Respondent from a remedial sanction. See

Appeal Decision 2618 (SINN) (2000) (“Financial hardship is considered subservient to the 

remedial purpose of these proceedings to promote safety at sea.”); Appeal Decision 2346 

(WILLIAMS) (1984) (“The need for a seamen to support his family must be considered 

subservient to the remedial purpose of these proceedings to promote safety at sea.”). 

After considering the severity of the violations at hand, all of the aggravating and 

mitigating evidence, and how severely the sanction will impact Respondent, I 

believe an outright suspension of nine months followed by a twelve month 
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suspension stayed on twenty-four months probation is appropriate in this case. If 

Respondent does not commit any violations during the 24 months of probation, 

his license will not be suspended for the twelve months. 

ORDER

IT IS HEREBY ORDERED that Respondent’s Coast Guard issued license is suspended 

outright for nine months followed by a suspension of twelve months stayed on twenty-four 

months probation. Respondent is further ordered to immediately deliver his license to the Coast 

Guard, and the sanction will take effect on the date Respondent delivers his license to the Coast 

Guard Investigating Officers in Port Arthur, Texas. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001 – 20.1004. 

(Attachment A). 

Done and dated October 26, 2005 

Houston, Texas 

` 

________________________________________ 

THOMAS E. P. McELLIGOTT 

U.S. COAST GUARD 

ADMINISTRATIVE LAW JUDGE 
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ATTACHMENT A

NOTICE OF APPEAL RIGHTS

33 CFR 20.1001 General. 

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

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; Baltimore, 

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. 

(b) No party may appeal except on the following issues: 

(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. 

(4) The ALJ's denial of a motion 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 ALJ did not consider 

evidence that that person would have presented. 

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

33 CFR 20.1002 Records on appeal. 

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

(b) 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 ALJ'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; 

Baltimore, 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 objections to the 

decision or ruling. The brief must set forth, in detail, the -- 
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(i) Basis for the appeal; 

(ii) Reasons supporting the 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 

service of the ALJ's decision. Unless filed within this time, or within another 

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

untimely. 

(b) 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 party to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of 

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

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

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

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

proceedings. 

(b) 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. 
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ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST 

RESPONDENT’S WITNESS 

1. Edmond J. Orgeron (Respondent) 

EXHIBIT LIST 

COAST GUARD’S EXHIBITS 

IO Ex. A – Case Report No. 32332 

IO Ex. B – Case Report No. 154721 

IO Ex. C – Case Report No. 211778 

IO Ex. D – Case Report No. 164169 

IO Ex. E – Case Report No. 169239 

RESPONDENT’S EXHIBITS 

Resp’t Ex. E –Coast Guard License 

Resp’t Ex. F – Letter from Floyd Barrois of Five B’s, Inc. to the Coast Guard 

Resp’t Ex. G – Sea Service Form 

Resp’t Ex. H – Merchant Mariner Physical Examination Report 

Resp’t Ex. I – Drug Test Results from Heinen Medical Review 

Resp’t Ex. J – Proficiency Evaluation 

Resp’t Ex. K – Letter from Respondent to Judge McElligott 
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ATTACHMENT C

RULINGS ON OUTSTANDING PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW

COAST GUARD’S PROPOSED FINDINGS

1. Captain Orgeron’s Coast Guard record showed numerous previous violations. Per the 

Coast Guard Marine Information for Safety and Law Enforcement (MISLE) system, 

Captain Orgeron was directly involved in the following acts: 

a. March 4, 2001, (activity numbers 228052 & 738991) Captain Orgeron had an 

allision with the F/S NELVANA and the towing vessel CATHERINE B. For this 

incident, his license was suspended for 2 months and he was put on probation for 

12 months. 

b. November 18, 2003, (activity number 1950770) While operating the towing 

vessel CAPT LES BARRIOS, Captain Orgeron allided with a fixed mooring 

dolphin. 

c. February 19, 2004 (activity number 2020428) Captain Orgeron, while operating 

the towing vessel FREEDOM, ran aground with barge AX 3202 in the Marianne 

Channel at 0600. 

d. February 19, 2004 (activity number 2009614) Captain Orgeron ran the towing 

vessel FREEDOM aground in the Marianne Channel at 1416. 

e. April 2, 2004 (activity numbers 2037554 & 2040180) Captain Orgeron failed to 

report a loss of propulsion on the towing vessel FREEDOM. Captain Orgeron 

failed to comply with orders from VTS Morgan City requiring him to wait for 

assist tugs before transiting the Morgan City zone with an underpowered vessel. 

Captain Orgeron was issued a Letter of Warning for failure to comply with the 

VTS Morgan City order. 

ACCEPTED IN PART AND REJECTED IN PART. Under 33 CFR 20.1315, only 

the incidents of March 4, 2001 and April 2, 2004 are properly considered as 

Respondent’s prior record in these proceedings.