UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

KEITH W. ELLIOTT, 

Respondent. 

) Docket No. 01-0452 

) 

) CG Case No. PA 01 001227 

) 

) 

) 

) 

) 

DECISION AND ORDER 

Respondent has been charged in an Amended Complaint ofNovember 30, 2001, 

with one count ofNegligence and one count of Misconduct, with four specifications. 

The Negligence count alleged that Respondent, on June 25, 2001 while serving as 

the Operator of the vessel SHARON BRUSCO at Bartlett Landing on the North Shore of 

Government Island on the Columbia River, a navigable waterway of the United States, he 

committed an act or failed to perform an act that contributed to the allision of the Barge 

ZAG-501 (while under the control of the tug SHARON BRUSCO) and the recreational 

vessel INDEPENDENCE and the dock located at Bartlett's Lansing. 

The first Misconduct specification alleged Respondent made a false, fictitious and 

fraudulent representation of the facts regarding the allision between the barge ZAG-50 1, 

the recreational vessel INDEPENDENCE and the dock located at Bartlett's Landing to 

Coast Guard Search and Rescue Coordination Officers in the course of their official 

duties all in violation of 18 USC § 1 001. 

The second Misconduct specification alleged Respondent made a false, fictitious 

and fraudulent representation of the facts regarding the allision between the barge ZAG501, the recreational vessel INDEPENDENCE and the dock located at Bartlett's Landing 

to Coast Guard Boarding Officers in the course of their official duties all in violation of 

18 usc§ 1001. 

The third Misconduct specification alleged Respondent made a false, fictitious 

and fraudulent representation of the facts regarding the allision between the barge ZAG501, the recreational vessel INDEPENDENCE and the dock located at Bartlett's LFmclina 

to Coast Guard Marine Casualty Invest oPTIONAL FORM 99 (7-90) /c(Jr.(--0 ~ 

all in violation of 18 USC§ 1001. FAX TRANSMITTAL \#at pages .. /6 

The fourth Misconduct specific; 

vessel or tug SHARON BRUSCO by fE 

Decision and Order- 1 

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wheelhouse at or about 0410 hours on June 25,2001 as required by Inland Navigation 

Rule of the Road No.5. 

Respondent by his legal counsel, answered the complaint in which he admitted all 

jurisdictional allegations, admitted the Columbia River is a navigable waterway of the 

United States, and that he is a licensed operator of the SHARON BRUSCO. He 

specifically denied each of the remaining factual allegations 'and specifications. 

In turn Respondent demanded a hearing on the matter together with settlement 

discussions. 

After a pre-trial conference, the parties arrived at a stipulation of the facts, which 

included six documentary exhibits (A to F). 

A preheating conference was held in Portland, Oregon on December 20, 2001, 

which included settlement discussion between the parties, which was followed by a 

hearing. An oral decision was rendered at the hearing, which found the Coast Guard had 

proven each ofthe counts of the complaint. The parties then offered statements in lieu of 

· witness testimony in mitigation and aggravation for purposes of this judge determining 

the sanction to be imposed. A formal written decision finding the facts, conclusions of 

law and sanctions now follows. 

Findings of Fact 

The stipulation of facts is accepted and the facts are found to be as follows: 

1. Mr. Keith W. Elliott (Respondent) was aboardthe tug SHARON BRUSCO 

(O.N. 511361) on June 25, 2001. 

2. Respondent was the duly licensed and assigned operator of the SHARON 

BRUSCO on June 25,2001. 

3. Respondent was responsible for the movement and control of the SHARON 

BRUSCO on June 25, 2001. 

4. Respondent was acting under the authority of his U.S. Coast Guard issued 

license (No. 906064) on June 25, 2001. 

5. Brusco Tug and Barge employed respondent on June 25, 2001. 

6. The SHARON BRUSCO was pushing ahead barge ZAG-501, loaded with 

gravel on June 25, 2001. 

7. At approximately 0400 of June 25,2001, Respondent left the operation station 

of the SHARON BRUSCO unattended for the purpose of using the bathroom. 

8. At approximately 0400 of June 25, 2001, Respondent left the port engine 

engaged and left the operating station of the SAHRON BRUSCO for the 

purpose ofusing the bathroom. 

9. There was one other person aboard the SHARON BRUSCO on June 25,2001 

and he was not called to the operating station at or about 0400 for the purpose 

of relieving the Respondent to go to the bathroom. 

Decision and Order- 2 
10. The barge ZAG-501 under the control of the SHARON BRUSCO did leave 

the navigation channel and allided with the recreational vessel 

INDEPENDENCE and the docks at Bartlett's Landing, Oregon. 

11. ZAG-501 under the control of the SHARON BRUSCO caused damage to the 

INDEPENDENCE. 

12. On June 25, 2001, prior to the allision a family (comprised of a man, a 

woman, and three children ranging from 10 years old to 4 years old) was on 

board the INDEPENDENCE. 

13. The owner of the INDEPENDENCE awoke of his own accord and was able to 

get his family off the INDEPENDENCE just prior to the allision with the 

barge ZAG-501. 

14. The SHARON BRUSCO did not use an sound signals as a warning to other 

vessels on or about 0400 June 25, 2001. 

15. ZAG-501 under the control of the SHARON BRUSCO caused damage to the 

docks at Bartlett's Landing. The damage included broken pilings, broken 

dock structures and portions of the dock moving approximately 20 feet 

shoreward. 

16. Respondent departed the scene of the allision without contacting or notifying 

any potential victims, search and rescue agencies or law enforcement 

agencies. 

17. Respondent had turned down the volume of his VHF radio and was not 

monitoring Channel 16. 

18. When Respondent did answer, the Coast Guard Search and Rescue VHF radio 

call he had an exchange with the Coast Guard Search Rescue Coordination 

Officers that is transcribed and is Exhibit A. 

19. At around 0530 on June 25, 2001, the Coast Guard Boarding Officers boarded 

the SHARON BRUSCO. One ofthe boarding officers, BM2 Benjamin 

Myers, had an exchange with Respondent that is accurately reported in Myers' 

report, which is Exhibit B. 

20. After the interview with the Coast Guard Boarding Officers but before being 

interviewed by the Multnomah County Sheriffs Marine Patrol, the Coast 

Guard Marine Safety Accident Investigating Officer who responded to the 

allision, Officer Boucher, interviewed Respondent. During that interview, 

Respondent made the statements reported by Officer Boucher in his report, the 

relevant portion of which is Exhibit C. 

21. At approximately 0930 on June 25, 2001, the Multnomah County Sheriffs 

Marine Patrol Deputy who responded to the allision, Deputy Hefferman, 

interviewed Respondent. During that interview Respondent made the 

statements reported by Deputy Hefferman in his report, the relevant portions 

of which are Exhibit D. 

22. Following the interview referenced in paragraph 21, while Deputy Hefferman 

was returning to the Willamette Patrol Office, he received a page from Mark 

Guinn, Respondent's superior at Brusco Tug and Barge. The deputy 

responded to the page and Mr. Guinn advised him that Respondent wanted to 

tell him "what really" happened. 

Decision and Order- 3 
23. At approximately 1100 on June 25, 2001, LT Regan and PS3 Sawyer 

interviewed Respondent at Respondent's request. During that interview, 

Respondent made the statements reported by PS3 Sawyer in his report, which 

is Exhibit F. 

24. Respondent did not post a lookout when he departed the wheelhouse of the 

SHARON BRUSCO to go to the bathroom. 

Based on the various exhibits the following additional facts are found. 

The following conversation took place between Respondent and the Coast Guard 

Search and Rescue Coordination Officers on June 25, 2001: 

CG: Brusco .... We have a report of tug pushing a gravel 

barge that struck a dock and a vessel in the vicinity of 

Bartlett Island and we're just trying to confirm what that 

vessel's name is, over 

KE:. I didn't get the name of it. I didn't get the name of it, 

it was a tugboat and it pulled right out in front of me. 1 had 

to go full astern to keep from ramming him. He came right 

out of uh, that moorage and we had to ah, I don't know 

how we ever missed him but and he went over on the other 

side ofthe river. 

CG: Roger sir, do you see that vessel right now. 

KE: No we don't we're drawing 15 feet of water we can 

hardly get in that place we're ah, we ah, when the vessel 

came out of there, well, he just backed right out on front of 

us and we had, we had to really dog it to get around him. 

(Exhibit A) 

Respondent represented to BM2 Benjamin B. Myers, a Coast Guard Petty Officer 

in connection with the investigation of the allision at Bartlett's Island dock on June 25, 

2001, the following: That he had not allided with any piers or boats on his trip up the 

nver. (Exhibit B) 

Respondent represented to Samuel Boucher when asked if he knew of an allision 

he said "no, but a small vessel had ran out in front of him, but he couldn't remember what 

it was and could not tell where it went." He further represented to Mr. Boucher that he 

had not hit any pier or small vessel. 

Decision and Order- 4 
Discussion and Conclusions of Law 

Negligence 

Respondent's stipulation of facts is tantamount to an admission that he was 

negligent when he left the wheelhouse of the SHARON BRUSCO at or about 0400 hours 

on June 25, 2001 to go to the bathroom. No other person was left to operate the vessel. 

He left the engine engaged. Simply put, to leave the bridge of the tug SHARON 

BRUSCO that morning unattended, with no lookout, no one navigating the vessel is 

conduct which a reasonable person (operator of an uninspected towing vessel) of similar 

station and circumstance would not commit. This is negligence per se. The negligence 

count is proven. 

Misconduct 

Misconduct is defined in the Coast Guard regulations as follows: 

Misconduct is human behavior, which violates some 

formal, duly established rule. [46 CFR § 5.27] 

Respondent is alleged to have engaged in three distinct acts of misconduct by 

making three false statements in violation 18 USC § 1001. 

The first Misconduct specification alleged Respondent made a false, fictitious and 

fraudulent representation of the facts regarding the allision between the barge ZAG-501, 

the recreational vessel INDEPENDENCE and the dock located at Bartlett's Landing to 

Coast Guard Search and Rescue Coordination Officers in the course of their official 

duties all in violation of 18 USC § 1001. 

The second Misconduct specification alleged Respondent made a false, fictitious 

and fraudulent representation of the facts regarding the allision between the barge ZAG501, the recreational vessel INDEPENDENCE and the dock located at Bartlett's Landing 

to Coast Guard Boarding Officers in the course of their official duties all in violation of 

18 usc·§ 1001. 

The third Misconduct specification alleged Respondent made a false, fictitious 

and fraudulent representation of the facts regarding the allision between the barge ZAG501, the recreational vessel INDEPENDENCE and the dock located at Bartlett's Landing 

to Coast Guard Marine Casualty Investigating Officer in the course of his official duties 

all in violation of 18 USC § 1 001. 

The facts demonstrate there was an allision between the barge ZAG-501 which 

was under the control of the tug SHARON BRUSCO, and which tug was operated (or 

supposed to be operated) by Respondent and the dock at Bartlett's Landing and the 

recreational vessel INDEPENDENCE. 

Decision and Ordyr- 5 
The facts also demonstrate that Coast Guard Search and Rescue Coordination 

Officers asked Respondent 'about that allision in the course of their official duties. 

The questions asked of Respondent required specific answers, ·which he gave. All 

of which were objectively false. 

A formally established rule governing human behavior is found in the federal 

false statement statute, 18 USC § 1001. In order to violate that statute the Respondent 

had to knowingly and willfully made a material false statement or representation in any 

matter within the jurisdiction of the executive branch of the United States. 

The Coast Guard is, of course, a part of the Department of Transportation an 

executive branch department. It is within the jurisdiction of the Coast Guard to conduct 

investigations into matters, which involve safety of life and property at sea including ports 

and waterway safety. See, e.g., 33 USC§ 1221 et. seq. 46 USC§ 2103; 46 CFR Subpart 

4.01 et. seq. · 

The first alleged false statement: "I didn't get the name of it. I didn't get the name 

of it, it was a tugboat and it pulled right out in front of me. I had to go full astern to keep 

from ramming him. He came right out ofuh, that moorage and we had to ah, I don't 

know how we ever missed him but and he went over on the other side ofth~ river", was 

very material to the Coast Guard's inquiry regarding an allision, a matter of safety of life 

and property at sea. It was clearly false, and Respondent knew it was false. I, thus find 

he made that statement knowingly and willfully. 

The second alleged false statement: Respondent represented to BM2 Benjamin B. 

Myers (a Coast Guard Petty Officer) in connection with the investigation of the allision at 

Bartlett's Island dock on June 25, 2001 the following: That he had not allided with any 

piers or boats on his trip up the river. (Exhibit B) 

This statement was very material to the Coast Guard's inquiry regarding an 

allision, a matter of safety of life and property at sea. It was clearly false, and 

Respondent knew it was false. I thus find he made that statement knowingly and 

willfully. 

The third alleged false statement: Respondent represented to Samuel Boucher (a 

Coast Guard Petty Officer) when asked if he knew of an allision he said "no, but a small . 

vessel had ran out in front of him, but he couldn't remember what it was and could not 

tell where it went." He further represented to Mr. Boucher that he had not hit any pier or 

small vessel. It was clearly false, and Respondent knew it was false. I thus find he made 

that statement knowingly and willfully. · 

I, therefore, conclude Respondent engaged in three separate acts of misconduct as 

defined in 46 CFR § 5.27 by knowingly and willfully making three separate false 

statements which involved material information essential to the Coast Guard's 

investigation of an allision between the barge ZAG-501 under the control of the 

Decision and Order- 6 
SHARON BRUSCO and the recreational vessel INDEPENDENCE and the docks at 

Bartlett's Landing, Oregon on June 25, 2001. 

Finally, the fourth Misconduct specification alleged Respondent wrongfully 

operated the vessel or tug SHARON BRUSCO by failing to post a lookout when he 

departed the wheelhouse at or about 0410 hours on June 25,2001 as required by Inland 

Navigation Rule of the Road No.5. 

The Inland Navigation Rules, Rule 5 [33 USC § 2005] "Look-out" provides as 

follows: 

Every vessel shall at all times maintain a proper look-out 

by sight and hearing as well as by all available means 

appropriate in the prevailing circumstances and conditions 

so as to make a full appraisal of the situation and the risk of 

collision. 

Respondent left the bridge or wheelhouse of the SHARON BRUSCO to go to the 

lavatory. No one was left on the bridge- no one. The tug and barge left the channel and 

allided with the recreational vessel INDEPENDENCE and the docks at Bartlett's 

Landing. The fault of the SHARON BRUSCO and the barge was due to a most serious 

defect of lookout on board her, amounting to a complete abdication of responsibility by 

her master, the Respondent, who was absent from the bridge for however short a period. 

This is a clear violation of Rule 5. Compare to The Sea Star [1976], 2 Lloyd's Reporter 

478; Farwell's, Rules ofthe Nautical Road, p. 237. 

SANCTION 

I am concerned when the Coast Guard conducts investigations and seeks 

information from persons who are involved in serious marine incidents, such as the 

allision here, that the officers receive truthful information. And, to the extent that 

persons don't tell the Coast Guard investigators the truth, the ability of the Coast Guard 

to effectively do their job protecting the safety of our waterways is undermined. 

I am also concerned that merchant mariners not believe that misleading or lying to 

a Coast Guard officer or investigator is something that can be lightly tolerated, because 

there are serious implications that flow from making false statements in the course of an 

investigation. 

And I am also concerned about the ethics of merchant mariners. Whether or not 

they believe or think leaving a bridge totally without anyone at the helm, let alone anyone 

as a lookout, is something that can be tolerated. How do we cure that? A message has to 

be sent that no one will lie or mislead a Coast Guard officer in the course of an 

investigation or engage in such serious misconduct. 

Decision and Order- 7 · 
But, vindication of the public's interest here is not necessarily revocation. That 

does not necessarily achieve the education of the merchant mariner community, or 

vindicate the public's interest in the integrity of Coast Guard investigations, as well as 

compliance with the rules of the road. · 

If Respondent has learned from this experience, and I believe he has, removing 

him does not achieve the further goal of education of the mariner community to know the 

implications of misconduct of this type. 

Moreover, the table of suggested or recommended sanctions m: orders, 46 CFR 

Table 5.569 shows that failure to comply with U.S. law or regulation only has a 

recommended sanction of a one to three month suspension. 

Here however, a family nearly missed potential serious injury. They escaped the 

seconds before the barge allied with the INDPENDENCE. Fortunately, no one was 

injured. This factor suggests an enhancement ofthe sanction. 

Consequently, I will suspend Respondent's license for a period of two [2] years 

with a one year probation included. During the one year period, I will expect that 

Respondent will educate the mariner community, other licensees, other tug operators, 

mates and the like about what occurred. 

I direct that Respondent appear before other captains, masters, pilots and 

operators in the geographic area covered by the Portland Oregon Coast Guard Marine 

Safety Office to inform them about the implications of what he had done in this matter. I 

direct that a minimum of six [6] such appearances be made during this one year period. 

For further explanation see Transcript of Proceedings, December 20, 2001 pp. 32 ff. 

I further direct that Respondent report to the Coast Guard Marine Safety Office, 

Portland on the progress of these appearances. 

NOW THEREFORE IT IS ORDERED Respondent's License No. 906064 

currently in the possession of the Coast Guard Marine Safety Office, Portland is 

suspended for a period of two [2] years commencing on December 20, 2001 together 

with a period of one year probation to run concurrently with the suspension. 

. . IT IS FURTHER ORDERED, Respondent shall arrange for and appear a 

minimum of six [6] times during a one year period before other licensed or documented 

captains, masters, and operators for the purposes of explaining the circumstances of this 

matter and the implications and sanctions involved. Respondent shall report to the Coast 

Guard on the progress of these efforts so ordered. 

Decision and Order- 8 
Service of this s Decision upon you serves to notify you of your right to appeal as 

set forth in 33 CFR Subpart J, §20.1001. (Attachment A) 

Dated: January 29, 2002. 

Edwin M Bladen 

Administrative Law Judge 

Certificate of Service 

I hereby certify that I have this day delivered the foregoing Order upon the 

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

proceeding, at the address indicated as follows: 

MSO Portland, Oregon 

Attn: L T Sean Regan 

Telefax: 503-240-9345 

Mr. Marc D. Blackman 

Attorney at Law 

Telefax: 503-227-5984 

ALJ Docketing Center, Attn: George Jordan 

E-mail 

Dated at Seattle, WA this 29111 day of January, 2002. 

Decision and Order - 9 

'-.... / /) 1\_..(.lv'-' /} '"itql~vLLfJl~·yt. ,_.. • /v (j 

MARY P~ EERST 

Legal Assistant to 

Administrative Law Judge