UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

DECISION OF THE 

VICE COMMANDANT 

v. 

ON APPEAL 

NO. 

MERCHANT MARINER LICENSE 2 7 0 ' 

Issued to: RICHARD A. CHESBROUGH 

APPEARANCES 

For the Government: 

LT Kimberly D. Rule, USCG 

CWO John Nay, USCG 

Coast Guard Marine Safety Unit Portland 

For the Respondent: 

Mr. Richard Albert Chesbrough 

Co-Representative: Mr. Scott Clifford 

Vancouver, Washington 

Administrative Law Judge: George J. Jordan 

This appeal is taken in accordance with 46 U.S.C. Chapter 77, 46 C.F.R. Part 5 and 

33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated September 18, 2013, an 

Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard suspended the 

Merchant Mariner Credential of Mr. Richard Albert Chesbrough (hereinafter "Respondent") for 

two months upon finding proved one specification of misconduct. 
CHESBROUGH NO. 

27 0 'l 

The misconduct specification alleges that on May 9, 2012, Respondent, while acting under 

the authority of his Coast Guard-issued mariner license, committed misconduct by navigating the 

vessel WILLAMETTE QUEEN from the Willamette Slough into the Willamette River in 

violation of the vessel's Certificate of Inspection, which limited operation of the vessel to the 

Willamette Slough when the river gauge at Salem reads 11 ft or more, as it did on the relevant date. 

FACTS 

At all relevant times, Respondent was the holder of a Merchant Mariner License issued to 

him by the United States Coast Guard. 1 [D&O at 6] 

The WILLAMETTE QUEEN is a small passenger vessel of 62 gross tons, 64.8 feet long. 

[D&O at 6] The WILLAMETTE QUEEN must abide by its Coast Guard-issued Certificate of 

Inspection (hereinafter "COf') whenever it operates with paying passengers aboard. [D&O at 6; 

Stipulation of Facts dated October 7, 2012 (hereinafter "Stipulation")] The Coast Guard issued the 

WILLAMETTE QUEEN a COi on October 29, 2007. [D&O at 6] One of the conditions listed on 

the WILLAMETTE QUEEN's COi provides: "When the river gauge at Salem reads 11 ft or more 

the vessel's operation is limited to the Willamette Slough located behind Minto Browns Island." 

[D&O at 6; Stipulation] 

The Salem gauge is located at river mile 84.2, near Salem, Oregon. [D&O at 7; Transcript 

of December 4, 2012 proceedings (hereinafter "Tr. f') at 81] Gauge readings are recorded in feet; 

readings are updated hourly and made publicly available on the U.S. Geological Survey 

(hereinafter "USGS") website in 15-minute increments. [D&O at 7; Tr. I at 82-83, 88-89] During 

the period from April 5 through June 28, 2012, the gauge was calibrated and found to be giving 

appropriate readings. [D&O at 7; Tr. I at 91] 

On May 9, 2012, Respondent was serving as the Master of the WILLAMETTE QUEEN. 

1 Respondent's Merchant Mariner License expired since the incident giving rise to this case occurred. The Coast 

Guard now issues consolidated Merchant Mariner Credentials rather than issuing separate Merchant Mariner 

Licenses, Certificates and Documents. Aligning with this change in issuance, Respondent was issued a Merchant 

Mariner Credential following the expiry of his Merchant Mariner License. This action is against his current Coast 

Guard-issued Merchant Mariner Credential. See D&O n. 3. 

2 
CHESBROUGH NO. 27 0 z 

[D&O at 8; Transcript of February 26, 2013 proceedings (hereinafter "Tr. II) at 75; Stipulation] 

On May 9, 2012, the office manager for the WILLAMETTE QUEEN misinformed Respondent of 

the river levels, providing him with information showing the projected levels for the river for May 

9 on May 7, 2012, rather than those projected on May 9, 2012. [D&O at 8; Tr. II at 40-41; 

Respondent's Ex. B] Respondent did not know the actual Willamette River level prior to getting 

underway on May 9, 2012. [D&O at 8; Tr. II at 77] 

The vessel got underway at 1900 hours with 66 passengers for hire onboard. [D&O at 8; 

Tr. I at 40-41] At 1900 hours, when the voyage commenced, the Salem gauge read 11.25 feet; 

when the voyage ended at 2000 hours, the gauge read 11.24 feet. [D&O at 9; Tr. I at 83; CG Ex. 1, 

9] Based on his assessment of the May 7 forecast predicting that the river level would be below 11 

feet by 1700 hours, Respondent nonetheless entered the Willamette River during the voyage, a 

violation of the COI condition restricting vessel operation to the Willamette Slough when river 

levels were 11 feet or more. (D&O at 8-9; Tr. II at 40-42] 

PROCEDURAL HISTORY 

On June 27, 2012, the Coast Guard filed a Complaint against Respondent's Merchant 

Mariner Credential. Respondent filed an Answer to the Complaint on July 17, 2012, wherein he 

admitted the jurisdictional allegations but denied some of the factual allegations and set out some 

affirmative defenses. 

The hearing took place on December 4, 2012, and February 26, 2013, at Portland Oregon. 

The Coast Guard offered the testimony of one witness and entered thirteen exhibits into the record. 

Respondent testified on his own behalf, presented the testimony of two other witnesses, and 

entered nine exhibits into the record. 

The ALJ issued his D&O on September 18, 2012. Respondent filed his Notice of Appeal 

on September 19, 2012 and his Appeal Brief on November 17, 2013, thus perfecting his appeal. 

The Coast Guard filed a Reply on December 24, 2013. This appeal is properly before me. 

BASES OF APPEAL 

3 
CHESBROUGH NO. 

2701, 

Respondent appeals from the ALJ' s D&O, which found one charge of misconduct proved. 

A thorough and careful review of Respondent's appellate filing reveals that he raises two issues: 

I. Whether the ALI was correct to find the misconduct charge proved even though the 

charge resulted from an arbitrarily placed CO/ restriction; and 

II. Whether the ALI abused his discretion in assessing a two-month suspension. 

OPINION 

I. 

Whether the AL.I was correct to find the misconduct charge proved even though the charge 

resulted from an arbitrarily placed CO/ restriction 

On appeal, Respondent does not deny that he committed the act of misconduct charged in 

this case. He acknowledges, as the facts show, that he operated the WILLAMETTE QUEEN on 

May 9, 2012, on the Willamette River when the gauge at Salem read in excess of 11 feet, a 

violation of a restriction placed on the vessel's COL Since Coast Guard case law precedent 

provides that a mariner who operates a vessel in violation of the conditions of its COI commits 

misconduct, the ALJ clearly did not err in finding the misconduct charge proved. See, e.g., Appeal 

Decisions 2299 (BLACKWELL) (1983) and 715 (ROLL) (1953). 

Despite the clear evidence of misconduct contained in the record, Respondent contends 

that the ALJ should not have found the violation proved because the COI restriction, itself, was 

arbitrarily placed by the Coast Guard, is unsupported by any facts, is unlike any COI restriction 

placed on any other vessel by the Coast Guard, and is likely to be removed soon. 

The ALJ addressed the COi amendment during discussion of the misconduct charge: 

The question of whether the 11-foot restriction on the COI is arbitrary 

and/or unfair is not properly before me. Under Coast Guard regulations, "[a ]ny 

person directly affected by a decision or action taken under this subchapter 

[subchapter T], by or on behalf of the Coast Guard, may appeal therefrom in 

accordance with [46 C.F.R.] § 175.560. The procedures for requesting an amended 

COi are at 46 C.F.R. § 176.120, and a vessel is bound by the existing conditions 

4 
CHESBROUGH NO. 

until such time as the COi is amended again or a new COi is issued. 

(citations omitted) [D&O at 18] 

A review of the applicable regulations shows that appeals taken under 46 C.F.R. § 175.560 

are conducted in accordance with 46 C.F.R. § 1.03. This process is distinct from suspension and 

revocation proceedings and involves review by the Coast Guard personnel best suited to make 

determinations as to specific vessel operating requirements. As the ALJ properly concluded, 

suspension and revocation proceedings, such as this one, are not the appropriate forum in which to 

question the conditions of a vessel's COi. Just as the issue was not properly before the ALJ, it is 

not properly raised here. Irrespective of whether the restriction on the vessel's COi may, could, or 

should be removed, the fact remains that the COi restriction was properly in place at the relevant 

time and Respondent was required to ensure compliance with any and all terms of the vessel's 

COi. Because the record shows that Respondent failed to do so, the ALJ neither erred nor abused 

his discretion in finding the misconduct charge proved. 

Respondent refers to statements of a Coast Guard inspector who, he claims, originated the 

COi restriction, to argue that the restriction was not intended to be strictly construed. That Coast 

Guard inspector was not a witness in this proceeding and any statements he made are not a part of 

this record. Accordingly, they will not be considered. Even if they were considered, the intentions 

of a former official do not bind his superiors' and successors' prosecutorial decisions. The Coast 

Guard is entitled to enforce the clear language of the COi. 

Respondent also argues that, according to a witness, "there can be inaccuracies on both 

streamflow and gage height because one feeds into the other," and therefore the restriction cannot 

be enforced within 5%. This argument mischaracterizes the witness's testimony. The COi 

restriction refers to the gauge reading; how the predicted gauge reading relates to other stream 

variables is irrelevant to the question of whether the COi restriction is being complied with. 

II. 

Whether the ALJ abused his discretion in assessing a two-month suspension. 

5 
CHESBROUGH NO.' 2. 7 0 z 

The bulk of Respondent's appeal is argument in mitigation, meant to support elimination 

of the two-month suspension assessed by the ALJ. Respondent urges mitigation because: ( 1) he 

did not intend to knowingly violate the COI restriction "even by an inch or two" [Appeal Brief at 

1]; (2) the ALJ found that Respondent's operation of the vessel in violation of the COI on the 

relevant day amounted to nothing more than a "trivial infraction" that did not place any 

passengers, crew or other vessels on the river in any degree of danger [Id. at 3]; and (3) "The 

approval of a temporary credential by Judge Jordan further indicates that he does not feel that 

Respondent's continued employment as master does not [sic] pose any danger to passenger 

safety." [Id.] 

The ALJ has wide discretion to choose the appropriate sanction based on the individual 

facts of each case. Appeal Decision 2695 (AILSWORTH) (2011 ), slip op. at 16 (citing 2654 

(HOWELL) (2005)). "The AU may consider the sanction recommended by [ 46 C.F .R. Table 

5.569], but Respondent's remedial actions, his prior record, and other aggravating and mitigating 

factors may justify a tougher or more lenient order." Id. 

The record shows that the ALJ carefully considered all aggravating and mitigating 

evidence in assessing the two-month sanction at issue. Although the ALJ found the misconduct 

allegation proved, he did not find the aggravating factors articulated by the Coast Guard sufficient 

to warrant a sanction beyond that articulated in the "Suggested Range of an Appropriate Order" 

Table, at 46 C.F.R. § 5.569. However, given what the AU deemed the "single aggravating 

circumstance" (Respondent's operation of the WILLAMETTE QUEEN beyond the conditions of 

its COi based upon reliance on outdated and inaccurate information) and Respondent's prior 

history, the ALJ found it appropriate to assess a sanction beyond the one-month minimum set out 

in the Table. [D&O at 26-27] In so doing, the ALJ did, as Respondent asserts, note that the river 

level was "only slightly above the limit" and that there was no evidence presented to indicate that 

passengers were actually endangered by Respondent's operation of the vessel. [D&O at 26] The 

ALJ's thorough and thoughtful discussion of these factors demonstrates that his decision to 

suspend Respondent's license for two months was not an abuse of discretion. 

Respondent also complains that the Coast Guard's action in this case was motivated by 

6 
CHESBROUGH NO. 

• 

"pure vindictiveness to unfairly restrict our ability to operate and thus cause severe financial losses 

to our small business and not because of passenger safety concerns." [Appeal brief at 3] This 

complaint is utterly unsubstantiated by the record of the proceedings and need not be addressed. 

Respondent's assertion that a suspension is inappropriate because the AU obviously did 

not find Respondent's continued service as a master inconsistent with safety at sea, as he issued a 

Temporary Mariner Credential to Respondent, is wholly unpersuasive. 

Coast Guard Suspension and Revocation actions are ''remedial and not penal in nature. 

These actions are intended to help maintain standards for competence and conduct essential to the 

promotion of safety at sea." 46 C.F.R. § 5.5. An order of suspension levies accountability on a 

mariner and deters that mariner and others from similar conduct, without permanently removing 

that mariner from service at sea. By contrast, an order of revocation permanently removes a 

mariner from service at sea in addition to its accountability and deterrence effects, presumably 

because the conduct found proved is at least potentially inconsistent with safety at sea. 

Under the regulations, mariners whose credentials have been suspended or revoked may 

seek issuance of temporary mariner credentials, except for an offense in a category for which 

revocation is mandatory or presumptively appropriate. See 46 C.F.R. § 5.707. Respondent did so 

in this case, and was granted a temporary credential. "A determination as to the request will take 

into consideration whether the service of the individual is compatible with the requirements for 

safety at sea." 46 C.F.R. § 5.707(c). The issuance of a temporary credential is not, as Respondent 

suggests, inconsistent with suspension of a mariner's Coast Guard-issued Mariner Credential, 

which contemplates that the mariner will again serve at sea after the suspension period. 

CONCLUSION 

The AU's findings and decision were lawful, based on correct interpretation of the law, 

and supported by the evidence. The AU did not abuse his discretion on sanction. There is no 

reason to disturb the AU's Order. 

7 
CHESBROUGH NO. 

2701 

ORDER 

The ALJ's Decision and Order dated September 18, 2013, is AFFIRMED. 

(;;J 

Peter V. Ne enger 

Vice Admiral, U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C., this 2~ 1 ayof T~'1 , 2015. 

8