UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

2695

UNITED STATES OF AMERICA

UNITED STATES COAST GUARD

vs.

MERCHANT MARINER LICENSE

DECISION OF THE

COMMANDANT

ON APPEAL

NO.

Issued to: WILLIAM DEA AILSWORTH

This appeal is taken in accordance with 46 U.S.c. § 7701 et seq., 46 C.F.R. Part

5, and the procedures set forth in 33 C.F.R. Part 20.

By a decision and order (hereinafter "D&O") dated August 31,2009, Michael J.

Devine, an Administrative Law Judge (hereinafter "ALJ") ofthe United States Coast

Guard, at Norfolk, Virginia, revoked the merchant mariner license of Mr. William Dea

Ailsworth (hereinafter "Respondent"), upon finding proved one charge of negligence and

two charges of violation oflaw or regulation. The first specification found proved

alleged that on January 11, 2009, Respondent, the master of a towing vessel, grounded a

listing barge, the SL-119, and then caused it to sink on January 12, 2009, by negligently

removing it from its beached position on the shore before remedying the cause ofthe list.

The second specification found proved alleged that Respondent violated 46 C.F.R.

§ 4.05-10 by failing to submit a marine casualty report to the Coast Guard within five

days ofthe sinking. The third specification found proved alleged that Respondent

violated 46 C.F.R. § 4.05-1 by failing to notify the Coast Guard immediately of an
AILSWORTH NO. ./ ;.:: () "

-. .... y

occurrence materially affecting a vessel's seaworthiness when he failed to immediately

notify the Coast Guard of the list that caused him to ground the SL-119. The ALJ

dismissed a fourth specification alleging that Respondent wrongfully failed to comply

with a subpoena to appear.

APPEARANCES: Michael L. Donner, Sr., Esq., Hubbard, Terry & Britt, P.e. 293

Steamboat Road, Irvington, VA, 22480, for Respondent. The Coast Guard was

represented by LT Candice Casavant, LT Aidan Van Cleef, and LT Maria Wiener, U.S.

Coast Guard Sector Hampton Roads, 200 Granby Street, Suite 700, Norfolk VA, 23518.

PROCEDURE & FACTS

At all relevant times herein, Respondent was the holder of, and acted under the

authority of, the Coast Guard issued merchant mariner license at issue in this proceeding.

On January 9,2009, Respondent arrived at the south side ofthe Honeywell

International (hereinafter "Honeywell") plant's loading pier in Hopewell, Virginia, to

load the SL-119 and one other barge with fertilizer. [D&O at 6; Transcript (hereinafter

"Tr.") at 217-220; Coast Guard Exhibit (hereinafter "Ex.") 11 at 1] After a Honeywell

employee completed loading the barge on the morning ofJanuary 10, 2009, the SL-119

developed a noticeable list. [D&O at 6; Tr. at 231-32] Respondent believed the barge

was overloaded. [Tr. at 231] Respondent moved the barge to the north side ofthe pier

after Honeywell employees told him that he would need to make space for another vessel

to dock on the south side. [D&O at 6; Tr. at 232-33] Respondent used electric pumps in

an attempt to remove water leaking into two ofthe SL-119's compartments. [D&O at 6;

Tr. at 237-41] Thereafter, Respondent asked a Honeywell employee about offloading

2
AILSWORTH NO. 2695

some ofthe fertilizer, but was infonned that Honeywell did not have the equipment for

offloading. [D&O at 6; Tr. at 117-118, 244-47]

At approximately 9:00 a.m. on January 11, 2009, Respondent grounded the barge

on the shore next to the pier after detennining that the list had become more severe and

that pumping could not relieve a leak in one ofthe compartments. [D&O at 7; Tr. at 246]

Respondent did not contact the Coast Guard at any time on January 11,2009, to infonn

the agency ofthe barge's compromised position. [D&O at 8; Tr. at 264-65,286,288]

However, Respondent did contact Dave Bushy, the president of a diving business, who

agreed to send a crew the next morning to inspect the barge for damage and to bring

additional pumps. [0&0 at 8; Tr. at 170-72, 264] Respondent was also in contact with

an excavator who could offload the barge ifRespondent moved it alongside the pier.

[D&O at 7; Tr. at 254-57,260]

By about 9:00 a.m. on January 12,2009, a high tide threatened to submerge the

barge while it was aground. [D&O at 7; Tr. at 256] Respondent believed that the

excavator was supposed to be at the pier at 9:00 a.m., and, for that reason, a little before

9:00 a.m., Respondent chose to move the boat from the shore back to the pier. [D&O at

7; Tr. at 256, 259, 261] Respondent secured the barge to the pier a little after 9:00 a.m.,

and the barge sank at 9:35 a.m., before the excavator arrived. [D&O at 7; Tr. at 172,261]

Respondent reported the barge's sinking to the Coast Guard about 30 minutes

after it occurred. [D&O at 8; Tr. at 266,286,288] However, Respondent did not submit

a written report ofthe accident until January 23,2009. [D&O at 8; Coast Guard Ex. 1]

Because Respondent left blank certain boxes on that report, he submitted a corrected

version three days later. [D&O at 8; Coast Guard Ex. 2] According to an employee of

3
AILSWORTH NO.

2695

the Virginia Department of Environmental Quality, the sinking released ammonium

sulfate, which can poison aquatic life and cause other environmental hann, into the James

River. [Tr. at 178-81] In addition, Honeywell submitted a report stating that the boat's

sinking cost nearly one million dollars. [Coast Guard Ex. 20.]

The Coast Guard filed its original Complaint in the matter on March 3, 2009, but

amended the complaint several times, until the final amended complaint charged

Respondent with the four violations detailed above. [D&O at 3] Respondent admitted to

the jurisdictional allegations, but denied that he negligently moved the barge from the

beach, denied that he failed to submit a marine casualty report within five days ofthe

sinking, and denied that he failed to immediately notify the Coast Guard of the vessel's

compromised seaworthiness. [Id.]

The hearing in the matter convened on June 9, 2009, in Norfolk, Virginia. [D&O

at 4] The Coast Guard introduced nine witnesses and entered ten exhibits into the record.

[D&O at 4; Tr. at 3-4] Respondent testified on his own behalf and entered four exhibits

into the record. [Id.] The ALJ issued his D&O in the matter on August 31,2009.

Respondent filed a timely notice of appeal on September 22,2009, and perfected

his appeal by filing an appeal briefin the matter on October 30,2009. The Coast Guard

did not reply to Respondent's brief. Therefore, this appeal is properly before me.

BASES OF APPEAL

This appeal is taken from the ALl's D&O finding proved one charge of

negligence and two charges of violation oflaw or regulation. Respondent's appeal

arguments are summarized as follows:

1. The AUerred in finding that Respondent was negligent because he A)

erroneously found that the barge was stable when Respondent

4
AILSWORTH }fO. 2695

removed itfrom the shore; B) erroneously found that Honeywell, the

party responsible for loading the barge, did not cause the list by

overloading the barge; and C) erred in concluding that different

standards ofnegligence govern civil actions and suspension and

revocation proceedings.

II. The AUcommitted an error oflaw by concluding that Respondent

violated 46 CF.R. § 4.05-10 when hefiled an untimely written report

ofthe accident;

III. The AUcommitted an error oflaw by concluding that Respondent

violated 46 CF.R. § 4. 05-1(a)(4) when hefailed to notify the Coast

Guard immediately ofhis grounding ofthe SL-119;

IV The AUcommitted an error oflaw by holding that the Pennsylvania

Rule required a finding ofnegligence unless Respondent produced

evidence that his violation of46 CF.R. § 4. 05-1(a)(4) did not

contribute to the vessel's sinking; and

V The AUerred by imposing a sanction-revocation-that was

unreasonable.

OPINION

Standard ofReview

"On appeal, a party may challenge whether each finding offact rests on

substantial evidence, whether each conclusion oflaw accords with applicable law,

precedent, and public policy, and whether the ALl committed any abuses of discretion."

Appeal Decision 2685 (MATT) citing 46 C.F.R. § 5.701 and 33 C.F.R § 20.1001.

"[G]reat deference is given to the ALl in evaluating and weighing the evidence." Appeal

Decision 2685 (MATT). "The ALl is the arbiter offacts" and it is "his duty to evaluate

the testimony and evidence presented at the hearing." Appeal Decision 2610

(BENNETT). "[T]he findings offact ofthe ALl are upheld unless they are shown to be

arbitrary and capricious or there is a showing that they are clearly erroneous." Appeal

Decision 2610 (BENNETT) citing Appeal Decisions 2557 (FRANCIS), 2452

5
AILSWORTH NO. 2695

(MORGRANDE) and 2332 (LORENZ). Moreover, "the ALJ is vested with broad

discretion in making detenninations regarding the credibility ofwitnesses and in

resolving inconsistencies in the evidence." Appeal Decision 2639 (HAUCK) citing

Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2516

(ESTRADA), 2503 (MOULDS), 2492 (RATH) and 2614 (WALLENSTEIN). See also

2628 (VILAS) ("Ifthe ALl's findings are supported by reliable, credible evidence, they

will be upheld because he saw and heard the witnesses, even ifthere was evidence on

which he (or I sitting in his stead) might reach a contrary conclusion. Stated another way,

I will not substitute my findings offact for the ALl's unless the ALl's [findings] are

arbitrary and capricious."). "The findings ofthe ALJ need not be consistent with all

evidentiary material in the record as long as there is sufficient material in the record to

support their justification." See Appeal Decision 2685 (MATT) citing Appeal Decisions

2395 (LAMBERT) and 2282 (LITTLEFIELD).

I

The AUerred in finding that Respondent was negligent because he A) erroneously found

that the barge was stable when Respondent removed it from the shore; B) erroneously

found that Honeywell, the party responsible for loading the barge, did not cause the list

by overloading the barge; and C) erred in concluding that different standards of

negligence govern civil actions and suspension and revocation proceedings.

The ALJ found, "based on the evidence in the record as a whole" that the Coast

Guard proved "negligence in that (1) Respondent failed to take adequate measures to

obtain assistance after deciding the condition ofthe barge SL-119 required grounding for

stability on January 11, 2009; and (2) actions in moving the SL-119 on January 12, 2009,

were negligent under 46 C.F.R. § 5.29." [D&O at 14] The record reveals that,

throughout the course ofthese proceedings, Respondent has argued that he should not be

6
AlLSWORTH NO. 2695

found negligent because Honeywell personnel overloaded the barge-and in so doing led

to the incidents at issue here--and that Respondent's actions to save the barge, including

moving it from its grounded position, were prudent. With regard to the negligence

charge, itself, the ALJ correctly noted that "[t]he only issue to be determined in this case

is whether Respondent's actions were negligent under the standard provided at 46 C.F.R.

§ 5.29." [D&O at 15] Under 46 C.F.R. § 5.29, negligence "is the commission of an act

which a reasonable and prudent person ofthe same station, under the same

circumstances, would not commit, or the failure to perform an act which a reasonable and

prudent person ofthe same station, under the same circumstances would not fail to

perform." After reviewing the entire record, the ALJ found as follows:

After barge SL-119 was loaded, it began to list. Respondent took action to

dewater the barge with an electric pump after finding water in a compartment,

however, as the problem with the barge SL-ll9 increased, Respondent

intentionally grounded the barge. Respondent's action in partially grounding

the barge on January 11,2009, to maintain its stability, is considered within

the range of actions that a person in a similar situation would take in keeping

with 46 CFR 5.29. Respondent's failure to take sufficient action to obtain

assistance after intentionally grounding the barge SL-119 on January 11,

2009, before moving the barge on January 12, 2009 to the position where it

sank, constitutes negligence under 46 CFR 5.29.

Respondent intentionally grounded barge SL 119 at approximately 0900 on

January 11,2009, and moored it in a stable position. The evidence in the

record demonstrates that there was time to seek additional assistance before

moving the barge back to the Honeywell pier the next day. Respondent

clearly knew the barge had a leak and was not stable. After mooring the

SL-119, Respondent requested a gasoline powered pump from the Honeywell

facility; the Honeywell facility had no gasoline pump. At approximately

noontime on January 11,2009, Respondent contacted Mr. David Bushy of

Pro-Dive and requested additional pumps and requested that divers inspect

the barge. Mr. Bushy informed Respondent they would be unable to get to

the Honeywell facility until the morning ofJanuary 12, 2009. However, prior

to the arrival of Pro-Dive, Respondent directed the movement of barge

SL-119, on the morning ofJanuary 12, 2009, from its grounded position to

the pier at the Honeywell facility where it sank. This action was taken by

Respondent even though he knew the SL-119 had been taking on water, he

had not obtained gas powered pumps, and with the knowledge that the

equipment to offload the cargo from the barge was not present at the dock.

7
AILSWORTH NO. 2695

I find a reasonable and pmdent person with the knowledge and experience of

the Respondent would not have moved the barge from its grounded position

without first obtaining assistance in some form, including but not limited to

contacting the Coast Guard for support and assistance from the Captain ofthe

Port, Coast Guard Sector Hampton Roads or other Coast Guard entity;

obtaining gas powered pumps that may have been able to pump out the

compartments with water in them; waiting until a diver could arrive and

assess the condition ofthe barge; and/or waiting for the offloading equipment

to be present at the dock prior to moving the barge.

[D&O at 15-16] (citations omitted) On appeal, Respondent argues that ALJ erred in

finding that Respondent was negligent because the ALJ erred in: finding that the barge

was stable while it was aground, finding that Honeywell did not overload the barge, and

in finding that different standards of negligence govern civil actions and suspension and

revocation proceedings. If Respondent's assertions are not persuasive, the ALl's finding

of negligence, which is supported by evidentiary material, will not be disturbed.

A.

In finding the negligence charge proved, the ALl erroneously found that the barge was

stable when Respondent removed itfrom the shore.

On appeal, Respondent notes that his "entire defense rested on his position that he

had to pull the SL-119 offthe beach on January 12,2009, to prevent it from being sunken

by the rising tide." [Respondent's Appeal Brief at 4] Respondent insists that none ofthe

Honeywell employees whose testimony the ALJ cited to support this finding stated

clearly that the boat was stable after Respondent pushed it aground, and he further points

out that neither described the condition ofthe boat on the morning ofthe sinking. [Id. at

13-16]

I will overturn the ALl's factual finding that the SL-119 was not in immediate

danger ofsinking on the morning ofJanuary 12, 2009, only ifit was arbitrary and

capricious, clearly erroneous, or based on inherently incredible evidence. See e.g.,

8
AlLSWORTH NO. 2695

Appeals Decisions 2685 (MATT) and 2654 (HOWELL). In this respect, "[t]he findings

ofthe ALl need not be consistent with all evidentiary material in the record as long as

there is sufficient material in the record to support their justification." Appeal Decision

2685 (MATT) citing Appeal Decisions 2395 (LAMBERT) and 2282 (LITTLEFIELD).

A review ofthe record shows that there is testimony to support the ALl's

conclusion that the SL-119 was stable while it was beached. Mr. Herman Schlimmer, the

leader for marine operations at Honeywell's Hopewell plant, who observed the barge

while it was sitting on the beach, testified that the barge "appeared to be stable where it

was sitting." [Tr. at 148] Mr. Schlimmer further testified that he would not have

recommended that the barge be moved away from the shore, again, because "[i]t

appeared to be stable where it was sitting." [Tr. at 151] Given both the great deference

afforded to the AU's findings and the fact that there is evidence in the record to support

the ALl's conclusion that the barge was in a stable condition while it was beached,

Respondent's argument regarding the barge's lack ofstability is not persuasive.

B.

The AUerroneously found that Honeywell, the party responsible for loading the barge,

did not cause the list by overloading the barge.

Respondent takes issue with the AU's decision to refrain from finding that

Honeywell caused the list by overloading the barge. [Respondent's Appeal Brief at 3,

8-10, 16-17; D&O at 14-15] Respondent seems to argue that the evidence shows that his

decision to move the barge back to the pier was reasonable because he deduced that he

could correct the list only by unloading the barge. [Respondent's Appeal Brief at 3,

8-10] Ultimately, as Respondent concedes, this argument is rendered irrelevant by my

conclusion that the ALl acted within his discretion by finding that the barge was stable

9
AILSWORTH NO.

2695

while it was aground. [Respondent's Appeal Brief at 16, note 4] Since the barge was not

in danger ofsinking while it was aground, the ALl reasonably concluded that Respondent

negligently moved the barge back to the pier before obtaining a diagnosis as to the cause

ofthe list.

C.

The ALJ erred in concluding that different standards ofnegligence govern civil actions

and suspension and revocation proceedings.

Respondent contends that the ALl erred in concluding that different standards of

negligence govern civil actions and suspension and revocation proceedings.

[Respondent's Appeal Brief at 7-8] It is my responsibility to review whether an ALl's

legal conclusions comply with applicable law and precedent. See e.g., Appeal Decisions

2685 (MATT) and 2646 (McDONALD). Contrary to Respondent's assertion, a review of

the record shows that the ALl did not state that different negligence standards govern

suspension and revocation proceedings and civil actions. Instead, the ALl merely made

the accurate comment that the contributory negligence of another actor, is not a valid

defense in a suspension and revocation proceeding. See D&O at 14-15; see also Appeal

Decision 2639 (HAUCK), Appeal Decision 2520 (DAVIS), Appeal Decision 2492

(RATH), Appeal Decision 2474 (CARMIENKE), Appeal Decision 2421 (RADER),

Appeal Decision 2402 (POPE), Appeal Decision 2400 (WIDMAN), Appeal Decision

2380 (HALL), and Appeal Decision 2319 (PAVLEC). Accordingly, Respondent's

argument is not persuasive.

10
AILSWORTH

II.

NO. 2695

The AUcommitted an error oflaw by concluding that Respondent violated 46 C.P.R.

§ 4.05-10 when hefiled an untimely written report ofthe accident.

Respondent argues that the AU committed an error oflaw by concluding that

Respondent violated 46 C.F.R. § 4.05-10 by filing an untimely written report ofthe

accident. [Respondent's Appeal Brief at 23-24] Respondent concedes that he filed an

initial written report six days late, and a corrected report three days later, but contends

that his filings contained sufficient information to "constructively comply" with the

regulation and that there is no evidence that his tardiness caused any further damage.

[!d.]

46 C.F.R. § 4.05-10 requires the owner of a vessel to file a written report of a

marine casualty with the Coast Guard Sector Office or Marine Inspection Office within

five days ofthe occurrence of a marine casualty. Respondent's concession that he filed a

tardy written report (six days late) dooms his argument. Given Respondent's own

admission, the ALl did not err in finding that the violation occurred.

III.

The AUcommitted an error oflaw by concluding that Respondent violated 46 C.P.R.

§ 4.05-1(a)(4) when hefailed to notify the Coast Guard immediately ofhis grounding of

the SL-119.

Respondent argues that the ALl committed an error oflaw by concluding that

Respondent violated 46 C.F.R. § 4.05-1(a)(4) when he failed to notify the Coast Guard

immediately of his grounding ofthe SL-119. [Respondent's Appeal Brief at 22-23]

Respondent insists that he fulfilled his duties by notifying the Coast Guard ofthe sinking

shortly after it occurred. [Id.] He further contends that, in any event, his failure to notify

the Coast Guard ofthe grounding was harmless because, he insists, the record shows that

11
AILSWORTH NO. 2695

the Coast Guard would not have been able to mitigate the damage to the barge before the

high tide forced Respondent to move it. [Id. at 22]

46 C.F.R. § 4.05-l(a) states, in relevant part, as follows:

Immediately after the addressing ofresultant safety concerns,

the...master. ..shall notify the nearest Marine Safety Office, Marine

Inspection Office or Coast Guard Group Office whenever a vessel is

involved in a marine casualty consisting in-

* * * (2) An intended grounding...that creates a hazard to navigation,

the environment, or the safety of a vessel, or that meets any criterion of

paragraphs (a) (3) through (8);

* * *

(4) An occurrence materially and adversely affecting the vessel's

seaworthiness or fitness for service or route, including but not limited to

fire, flooding, or failure of or damage to fixed fire-extinguishing systems,

life saving equipment, auxiliary power generating equipment, or bilge

pumping systems.

Pursuant to 46 C.F.R. § 4.03-l(b), "[t]he term marine casualty or accident applies

to events caused by or involving a vessel and includes, but is not limited to ... any

occurrence involving a vessel that results in...Grounding... [or]...Flooding." In this

case, the record shows that Respondent intentionally grounded the SL-119 because the

vessel was taking on water and listing. [D&O at 6-7] Respondent does not dispute the

ALl's finding that the list that forced him to ground the SL-119 constitutes a marine

casualty materially affecting the SL-119's seaworthiness, nor does he dispute that he

failed to contact the Coast Guard immediately regarding the SL-119's compromised

seaworthiness after grounding the barge. Moreover, while Respondent asserts that he

informed the NRC ofthe sinking ofthe barge, he does not argue, nor can he show, that he

informed the "nearest Marine Safety Office, Marine Inspection Office or Coast Guard

12
AILSWORTH NO. 2695

Group Office that the vessel was in extremis. Thus, the ALJ correctly concluded that

Respondent violated 46 C.F.R. § 4.05-1 (a)(4).

Although the ALJ did not err in finding the violation proved, I feel it necessary to

briefly address Respondent's contention that this violation was harmless. Respondent

asserts that, had he alerted the Coast Guard ofthe list immediately after grounding the

barge, the Coast Guard still would not have had time to respond during the 24 hours

between the grounding at approximately 9 a.m. on January 11,2009, and 9 a.m. on

January 12,2009, the time Respondent insists that he needed to move the barge to

prevent it from sinking on the shore as the tide came in. Respondent points out that

Lieutenant Patrick Burkett, an Investigating Officer for the Coast Guard, testified that the

Coast Guard "would have had somebody in place to mitigate the situation before it led to

the vessel sinking had we known 48 hours in advance as opposed to after it sunk."

[Respondent's Appeal Brief at 19; Tr. at 74] He also points out that another Coast Guard

witness, Lieutenant Saladin Shelton, a Command Duty Officer, could only speculate on

the Coast Guard's response-and the amount oftime it would have taken for the Coast

Guard to implement that response-had it been notified ofthe list. [Respondent's Appeal

Brief at 20]

Even assuming that the barge was sinking while it was aground on the morning of

the 12th (and, as I previously discussed, the ALJ was within his discretion to reject that

assumption), the record shows that the Coast Guard may have been able to assist the

Respondent by that time had he expedited notice of the grounding. Lieutenant Shelton

testified that, had he been notified ofthe grounding ofthe morning ofJanuary 11'\ a

response team may have been at the site in as little as four to six hours, and that,

13
AILSWORTH NO. 2695

depending on the circumstances, he may not have recommended moving the barge even

if it were about to sink while grounded. [Tr. 88-93] Thus, it is quite possible that

Respondent's compliance with 46 C.F.R. § 4.05-1 (a)(4) may have enabled the Coast

Guard to provide assistance or advice that would have prevented the sinking, or at a

minimum, mitigated its damages. As such, Respondent's arguments concerning the

reporting ofthe marine casualty are not persuasive.

IV.

The ALJ committed an error oflaw by holding that the Pennsylvania Rule required a

finding ofnegligence unless Respondent produced evidence that his violation of46

CPR. § 4.05-1 (a)(4) did not contribute to the 8L-119 's sinking

Respondent asserts that the ALl erred by applying the Pennsylvania Rule to the

specification of negligence, which, he claims, improperly shifted the burden of proofto

Respondent. Respondent's assertion to this end fails to acknowledge that prior to

discussing the application ofthe Pennsylvania Rule to Respondent's case, the ALl found

Respondent negligent by direct evidence. [D&O at 14, 19] Irrespective ofthat fact, the

ALl also found that Respondent was negligent under the Pennsylvania Rule.

"Under the Rule of The Pennsylvania, a party who fails to observe a safety

regulation has the burden ofshowing 'not merely that [its] fault might not have been one

ofthe causes [ofthe loss], or that it probably was not, but that it could not have been. '"

us. v. Nassau Marine Corp., 778 F.2d 1111, 1116 (5th Cir. 1985) quoting The

Pennsylvania, 86 U.S. 125, 136 (1873). In his D&O, the ALl offered the following

analysis regarding the application of the Pennsylvania Rule:

The application ofthe Pennsylvania Rule is an available means to

prove negligence in Coast Guard suspension and revocation cases. Appeal

Decision 2412 (LOUVIERE). The Pennsylvania Rule is not limited to

regulations or rules regarding collisions but may also be applied to

14
AILSWORTH NO. 2695

violations ofregulations intended to prevent the injury that actually

occurred. United States v. Nassau Marine Corp., 778 F.2d 1111 (5th Cir.

1985). In this case, the regulation that was violated provides that the

master of a vessel shall provide immediate notice to the Coast Guard of a

marine casualty that results in "[a]n occurrence materially and adversely

affecting the vessel's seaworthiness or fitness for service...." 46 CFR

4.05-1(a)(4).

After a tragic incident arising from an allision with a railroad

bridge that caused the derailment ofthe Amtrak Sunset Limited in

September 1993 ...this regulation was updated to clarify which marine

casualties require immediate notice so prompt corrective or investigative

efforts can be initiated. See 59 Fed. Reg. 39469-02 (August 3, 1994). The

regulation was specifically updated to ensure immediate notice to the

Coast Guard to avoid dangerous situations and provide the opportunity for

response....Since the regulation is designed to require immediate notice to

allow corrective measures to be taken, application ofthe Pennsylvania

Rule would require Respondent to demonstrate [that] his failure to comply

with the regulation was not a cause ofthe negligent sinking ofthe barge.

...I find Respondent did not demonstrate a basis to rebut the application of

the Pennsylvania Rule since there was no persuasive evidence that

providing notice to the Coast Guard on January 11, 2009 would not have

resulted in corrective action being initiated by the Coast Guard that could

have prevented the sinking. Therefore, Respondent is also found negligent

on that alternative basis. Even where not applied to establish negligence,

the Pennsylvania Rule applies to demonstrate as a matter of aggravation

that Respondent's negligent actions in this case caused the sinking ofthe

barge SL-119 and resulting harm from the sinking.

[D&O at 19-21] (footnotes omitted)

In this case, Respondent was charged with negligence with regard to the sinking

ofthe barge SL-119. Although application ofthe Pennsylvania Rule was not necessary

to establish negligence, the ALJ properly applied the Pennsylvania Rule to establish the

causal link between Respondent's negligence and the resulting sinking ofthe barge-a

matter in aggravation. Accordingly, Respondent's assignment of error regarding the

application ofthe Pennsylvania Rule is not persuasive.

15
AILSWORTH

v.

NO. 2695

The ALI erred by imposing a sanction-revocation-that was unreasonable.

Respondent argues that the ALl's revocation of his merchant mariner license was

an abuse of discretion. [Respondent's Appeal Brief at 24-25] He contends that 46 C.F.R.

Table 5.569 recommends only a one to three month sanction for violating a United States

regulation, that his violations of 46 C.F.R. §§ 4.05-1 (a)(4), 4.05-10 were "de minimis,"

and that he took immediate and well-intentioned steps to rectify the list and prevent the

SL-119 from sinking. [Id.]

The ALl has wide discretion to choose the appropriate sanction based on the

individual facts of each case. See Appeal Decision 2654 (HOWELL) citing 46 C.F.R.

§ 5.569(a) and Appeal Decisions 2640 (PASSARO), 2609 (DOMANGUE), 2618 (SINN)

and 2543 (SHORT). The ALl may consider the sanction recommended by the table in

46 C.F.R. § 5.569(d), but Respondent's remedial actions, his prior record, and other

aggravating and mitigating factors may justify a tougher or more lenient order. [Id.]

In this case, the ALl considered a wide variety of aggravating factors, including

Respondent's conviction in the present case ofthree separate offenses, his 2007

conviction for reckless driving, the property and environmental damage caused by the

barge's sinking, and, most importantly, Respondent's violation ofthe requirement to

notify the Coast Guard ofthe SL-1l9's grounding despite testimony that he had

previously been informed of his duty to do so. [D&O at 29-34] In mitigation, the ALl

considered Respondent's actions to determine the source ofthe list, but determined that

they did not compensate for Respondent's repeated poorjudgment. [Id. at 32] The

16
AILSWORTH NO. 2695

ALl's thorough and thoughtful discussion ofthese factors demonstrates that his decision

to revoke Respondent's license was'not an abuse of discretion.

CONCLUSION

The actions ofthe ALl accord with applicable law, and were not arbitrary,

capricious, or clearly erroneous. Furthermore, the record shows that competent,

substantial, reliable, and probative evidence existed to support the findings and order of

the ALl. Therefore, I find Respondent's bases of appeal to be without merit.

ORDER

Accordingly, the Decision and Order ofthe ALl, dated August 31, 2009, is

hereby AFFIRMED.

lIMA1 ~~-D~ V~

Signed at Washington, D.C. this l~r dayOf~Oll.

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