UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

PATRICK BEAU SHEA 

Respondent. 

______________________________ Docket Number: CG S&R 04-0292 

CG Case No. 2026523

 

DECISION AND ORDER

Issued: January 25, 2005

Issued by: Walter J. Brudzinski, Administrative Law Judge

Appearances:

For Complainant 

LT Michael R. Pierno, USCG 

Investigating Officer (I/O) 

USCG Sector Honolulu 

433 Ala Moana Blvd. 

Honolulu, HI 27813-4999 

(808) 522-8266 

For Respondent 

John O'Kane, Esquire 

Frame, Formby and O'Kane 

Four Waterfront Plaza, Suite 4-575 

500 Ala Moana Blvd. 

Honolulu, HI 92813 

(808) 545-3043 

 
2

TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 4 

FINDINGS OF FACT........................................................................................6 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW ...................................... 13 

DISCUSSION............................................................................................................................... 15 

Decision .................................................................................................................................... 16 

Pre-Hearing Brief...................................................................................................................... 22 

Post-Hearing Brief .................................................................................................................... 22 

Incompetence Subsequent to the Fit for Duty Declaration....................................................... 23 

Dismissal of the Misconduct Charge........................................................................................ 25 

Lack of Authentication on the Discharge Summaries .............................................................. 27 

Prejudicial Effect ...................................................................................................................... 30 

SANCTION .................................................................................................................................. 31 

ORDER......................................................................................................................................... 32 

NOTICE OF ADMINISTRATIVE APPEAL RIGHTS............................................................... 33 

WITNESS AND EXHIBIT LISTS............................................................................................... 35 

WITNESS LIST........................................................................................................................ 35 

COMPLAINANT’S WITNESSES....................................................................................... 35 

RESPONDENT’S WITNESSES .......................................................................................... 35 

EXHIBIT LIST......................................................................................................................... 35 

COMPLAINANT’S EXHIBITS........................................................................................... 35 

RESPONDENT’S EXHIBITS.............................................................................................. 36 

JUDGE’S EXHIBITS ........................................................................................................... 36 
3

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ............. 37 

COMPLAINANT’S PROPOSED FINDINGS......................................................................... 37 

Ultimate Findings ..................................................................................................................... 40 

Conclusions of Law .................................................................................................................. 41 

RESPONDENT’S PROPOSED FINDINGS............................................................................ 43 

Conclusions of Law .................................................................................................................. 47 
4

PRELIMINARY STATEMENT

In discharge of its duty to promote the safety of life and property at sea, the United States 

Coast Guard at Honolulu, Hawaii (“Coast Guard” or “Agency”) initiated this administrative 

action on June 3, 2004 against Respondent Patrick Beau Shea seeking to revoke his Merchant 

Mariners license and document. In its Complaint, the Coast Guard charged Respondent with one 

count of Misconduct and one count of Incompetence arising out of incidents occurring on 

December 18, 2003 while serving as Second Assistant Engineer onboard the SS EWA while 

underway from Long Beach, California to Honolulu, Hawaii. 

Specifically, the Complaint, as amended at the hearing and by the undersigned for clarity 

and to conform to the testimony that the vessel involved is a steamship that was transiting from 

Long Beach, California to Honolulu, Hawaii, reads as follows: 

Misconduct

“1. The Coast Guard alleges that on or about December 18, 2003, Respondent was 

employed as Second Assistant Engineer on the SS EWA. 

2. The Respondent did abandon his watch in the engine room, and was observed crawling 

on his hands and knees on the bridge wing, while the vessel was underway. 

3. Respondent was relieved of his duties for failure to maintain his watch.” 

Incompetence

“1. The Coast Guard alleges that on or about December 18, 2003, the Respondent had to 

be relieved of his duties, placed in restraints, and confined to quarters after displaying irrational 

behavior. 

2. The Respondent had packed bags with survival equipment and made it known that he 

intended to leave the ship, while it was underway between Long Beach, CA and Honolulu, HI. 
5

3. The Respondent was admitted to Queen’s Medical Center upon arrival in Honolulu on 

or about December 22, 2003 for a psychiatric evaluation. 

4. On a letter dated March 22, 2004, Dr. Barry Carlton, MD diagnosed the Respondent 

with having Bipolar disorder – manic. 

5. The Respondent had also been diagnosed with Schizopherniform disorder, incipient 

and Bipolar mood disorder, mixed mood state with catatonic features, after he was admitted to 

Lions Gate Hospital on March 3, 2003.” 

The purpose of Coast Guard suspension and revocation proceedings is to ensure the 

safety of life and property at sea.1

 There is strong public policy embodied in Coast Guard law 

and regulations to remove incompetent mariners from serving aboard vessels.2 The regulations 

authorize the Coast Guard to investigate and issue a complaint if reasonable grounds exist to 

believe that the holder of a license may have committed an act of incompetence, misconduct, or 

negligence while acting the authority of his license or document.3 The regulations also authorize 

a mariner to voluntarily deposit a license or document with the Coast Guard when there is 

evidence of mental or physical incompetence.4

The hearing was held on October 6, 2004 at Honolulu, Hawaii. The parties were given 

30 days after receipt of the hearing transcript to file post-hearing briefs and proposed findings. 

The undersigned received the Coast Guard’s proposed findings of fact and conclusions of law on 

November 20, 2004 and the Respondent’s post hearing brief and proposed findings of fact and 

conclusions of law on November 29th and December 2, 2004 respectively. This matter is now 

ripe for decision. 

 

1

 46 U.S.C. 7701(a). 

2

 46 U.S.C. 7703(1)(B) authorizing proceedings against a license or document if the holder commits an act of incompetence, 

misconduct, or negligence. 

3

 46 CFR 5.101(a), 5.105(a). 

4

 46 CFR 5.201. 
6

FINDINGS OF FACT

1. That at all times relevant, Patrick Beau Shea (also referred to as “Respondent”) has been 

the holder of U.S. Coast Guard license number 979580 and a Merchant Mariner’s 

Document bearing his Social Security Number. (Tr. at 12). 

2. That Respondent graduated from the United States Merchant Marine Academy in 1994 

with a class standing of 22 out of 222. (Tr. at 150). 

3. That on December 18, 2003, Patrick Beau Shea was employed as Second Assistant 

Engineer on board the Steamship (“SS”) EWA in charge of the 0400 to 0800 engine 

room watch during the EWA’s voyage from Long Beach, California to Honolulu, 

Hawaii. (Tr. at 2, 46, 51, 52). 

4. Respondent’s working environment requires him to work around heavy machinery and 

temperatures in excess of a one hundred twenty degrees Fahrenheit. (I/O Ex. A; Tr. at 52-

54, 172-175). 

5. That while on watch in the engine room at or around 0630 on December 18, 2003 and 

acting under the authority of his license and document, Respondent left his watch station 

with no relief and was observed crawling on his hands and knees on the bridge wing 

while the vessel was underway. (I/O Ex. 1; Tr. at 20, 32, 33, 177-178). 

6. That after the Chief Officer asked him to come into the wheelhouse so someone could be 

called to resume his engine room watch, Respondent immediately ran down the outside 

ladder from the bridge wing deck, grabbed a life ring with a strobe light attached to it, 

threw it over his shoulder, and then continued down the next ladder. Shortly afterwards, 

the Chief Officer saw two strobe lights flashing in the water off the port quarter of the 

ship. The Chief Officer ultimately had the 3rd Assistant Engineer assume Respondent’s 

watch. (Tr. at 35; Ex 1, p. 1). 
7

7. That Respondent had to be relieved of his duties, placed in restraints, and under a 24-hour 

suicide watch for the remaining three days of the 4 1⁄2 day voyage from Long Beach, 

California to Honolulu, Hawaii because he had filled a couple of large trash bags with his 

clothing and personal items, along with food, water, and reading material, all of which 

was found attached to the life raft that he admitted to dragging and assembling for the 

purpose of leaving the ship. (Tr. at 36, 37, 38, 42, 46, 51, 70; I/O Ex. 1, p. 1, 2; Ex 3). 

8. That in the discharge of his duty to ensure the safety of the vessel, cargo, and crew, 

Captain Thomas M. Stapleton, Master of the SS EWA, interviewed Respondent in 

Respondent’s stateroom. (Tr. at 64, 69, 78). 

9. That Respondent told Captain Stapleton he was concerned about some of the mechanical 

problems in the engine room and that the weather was not going to be very favorable en 

route to Hawaii. As a result of these concerns, Respondent told Captain Stapleton that he 

wanted to get off the vessel. (Tr. at 64, 65, 71, 73, 74). 

10. That in further response to Captain Stapleton’s questions, Respondent voluntarily handed 

over a folder containing his medical records (discharge summaries) for treatment 

received at Lions Gate Hospital in North Vancouver, British Columbia, Canada March 3rd

through the 19th and April 3rd through April 22nd of 2003 saying, “Here, you could hold 

onto these” or words to that effect. (Tr. at 65, 68, 69; I/O Ex 1, p. 1, I/O Ex. 2). 

11. That Captain Stapleton learned shortly after reading the discharge summaries from Lions 

Gate Hospital that Respondent suffered from mental illness. (Tr. at 77). 

12. That Respondent told Captain Stapleton he had taken the life raft out of its cradle and 

dragged it 50 to 60 feet aft and left it in the position where it was found when Captain 

Stapleton photographed it. (Ex. 3; Tr. at 74). 
8

13. That Respondent became very hostile and belligerent towards Captain Stapleton, 

demanding to have his packed bags and survival suit returned immediately. He then 

threatened Captain Stapleton whereupon Captain Stapleton handcuffed Respondent to his 

bunk rail. Respondent continued his rants and threats, locking himself to the toilet 

railing. (Ex. 1, p. 3). 

14. That after Captain Stapleton briefed the company’s contract doctor at Health Force 

Medical concerning Respondent’s condition, the contract doctor advised that Respondent 

be administered Diazepam (Valium) (10 mgs) every 6 hours for its calming effect. 

 (Ex. 1, p. 2; Tr. at 77, 78, 83). 

15. That Captain Stapleton maintained contact with the company’s contract doctor who 

ordered adjustments to Respondent’s medications. The Matson (owner) representative in 

Honolulu told Captain Stapleton to forward Respondent’s discharge summary medical 

records to the attending physician upon arrival Honolulu. (Ex. 1, pp. 3, 4). 

16. That prior to these incidents, Respondent had been a very alert and responsible officer. 

(Tr. at 81). 

17. That Dr. Barry S. Carlton, MD was Respondent’s attending psychiatrist upon his 

admission to Queen’s Hospital in Honolulu on or about December 22, 2003 until his 

discharge on January 6, 2004 and has remained his treating psychiatrist on an out-patient 

basis through the date of this hearing. (Tr. at 89-91; IO Ex. 5 at 2). 

18. That Dr. Carlton received the discharge summaries from Respondent’s two 

hospitalizations at Lions Gate Hospital in Canada in March and April of 2003. (Tr. at 95). 

19. That upon admission to Queen’s Medical Center on or about December 21, 2003, Dr. 

Barry S. Carlton, MD diagnosed Respondent with Bipolar Disorder, current episode 
9

manic, based on the information that was provided both from the emergency 

department’s review of records from the hospitalizations in Canada (I/O Ex. 2) as well as 

from information provided by the ship’s master (Captain Stapleton). (Tr. at 94). 

20. That Dr. Carlton prescribed Olanzapine (generic name for Zyprexa) for treatment of 

acute mania as well as for the prevention of manic or a prophylaxis (prevention) of 

bipolar disorder symptoms. He also prescribed Lorazepam, (Ativan), an anti-anxiety 

agent, and briefly, Fluoxetine (Prozac), an antidepressant. Respondent was discharged on 

Zyprexa. Upon discharge, and on February 13, 2004, Dr. Carlton declared that 

Respondent was fit for duty because his illness was in remission. (Tr. at 98-100; I/O Ex. 

5; I/O Ex 6). 

21. That Dr. Carlton saw Mr. Shea at various intervals from twice each week to bi-weekly 

except when Respondent was out of town or at sea. In September 2004, Dr. Carlton saw 

Respondent twice and found no signs of mood disturbance or thought disorder. (Tr. at 

102). 

22. That Dr. Carlton opined there is no literature to suggest how long medication 

management should be but he anticipates at least a two (2) year, if not a five (5) year 

period of medication management and at least five (5) years of asymptomatic condition 

before he would recommend discontinuing the medication. (Tr. at 105, 106). 

23. That Dr. Carlton opined Zyprexa has been approved by the Federal Drug Administration 

for treatment of acute mania as well as long-term management with prophylaxis and that 

the medication at this point is used to prevent the onset of future episodes of illness. (Tr. 

at 106, 107). 
10

24. That Dr. Carlton further opined “[t]here are patients who go on to maintain remission; 

that is, absence of symptoms for many years. And then there are also those who, despite 

medication, do have breakthrough symptoms. There is no science to suggest what the 

prognosis will be, or whether I could predict a remission....” (Tr. at 107). 

25. That Dr. Carlton opined, “[t]he medicines are helpful. They prevent breakthroughs, but 

you can’t guarantee it...there is always an ongoing risk... there is no evidence at this 

point from Mr. Shea’s either (sic) presentation or current clinical status that 

he...has...frequent episodes of illness...he is on 15 milligrams of Zyprexa ...(has) good 

mood stability, good thought stability, and absence of daytime sedation. At one point he 

was on a higher dose...and the side effect would be daytime sedation. He does have 

sufficient insight...that should there be breakthrough symptoms, he would...increase the 

medicine.” (Tr. at 108, 109). 

26. That Dr. Carlton opined Respondent will more or less remain in remission and not ever 

be “cured” because “...bipolar disorder is a chronic illness that requires long-term 

management. And so I could not say...with certainty that he would not have a 

breakthrough episode.” (Tr. at 109). 

27. That Dr. Carlton opined a patient taking Zyprexa and symptom free for five years 

remains at greater risk for breakdown episodes than one who does not have the illness. 

(Tr. at 112). 

28. That Dr. Carlton opined Respondent has more insight and control of these symptoms 

since he has been taking Zyprexa because it stabilizes his mood. (Tr. at 115-116). 

29. That Dr. Carlton opined Respondent would be more of a threat to himself rather than to 

others in the event of a relapse. (Tr. at 117). 
11

30. That Dr. Carlton opined Zyprexa is a psychotropic medication. (Tr. at 118). 

31. That the Physician’s Desk Reference (PDR) states “Somnolence was a commonly 

reported adverse event associated with Olanzapine (Zyprexa), occurring at an incidence 

of 26 per cent in Olanzapine patients compared to 15 per cent in placebo. This adverse 

event was also "dose related" and somnolence led to continuation in 0.4 percent of 

patients. Since Olanzapine (Zyprexa) has the potential to impair judgment, thinking, or 

motor skills, patients should be cautioned about operating hazardous machinery, 

including automobiles, until they were reasonably certain that Olanzapine therapy does 

not affect them adversely.” (Tr. at 120). 

32. That in his March 3-19, 2003 discharge summary at Lions Gate Hospital in North 

Vancouver, Canada, Dr. Christian H. Schenk, MD diagnosed Respondent with 

Schizophreniform disorder, incipient, and Bipolar mood disorder, mixed mood state with 

catatonic features. On his April 4-22, 2003 discharge summary at Lions Gate, Dr. 

Schenk diagnosed Respondent with Bipolar mood disorder, rule out Schizophreniform 

psychosis. (Ex. 2, p. 6 and p. 9). 

33. Dr. Carlton ruled out Schizophrenia. “[H]is total absence of the symptoms, return of 

mood stability... his very good social functioning, (and) interpersonal skills, would make 

the diagnosis a Bipolar disorder rather than Schizophrenia.” (Tr. at 128, 129). 

34. That Dr. Carlton opined Respondent is able to understand the symptoms and what to do 

about them and that “there is no reason to expect that he would have an exacerbation of 

illness...he also has to use common sense...assure the proper sleep, no drugs or alcohol, 

and to monitor for symptoms.” (Tr. at 130-131). 
12

35. That Dr. Carlton opined to a reasonable degree of medical certainty, Respondent is fit for 

duty at the present time to perform his job as described by the Matson (owner) job 

description in Respondent’s Exhibit “A.” Dr. Carlton previously found Respondent fit for 

duty on February 13, 2004. (Tr. at 133, 134, 135; IO Ex. 5; Respondent’s Ex. “A”). 

36. That Dr. Carlton opined it is not certain that Respondent will remain symptom free, even 

if he takes his medication because the course of the illness is highly variable; however, 

one can expect a sustained remission. (Tr. at 134, 135). 

37. That Dr. Carlton opined a side effect (of Zyprexa) is sedation, which Respondent 

currently does not have and weight gain, which he manages well. Further, there is no 

evidence of cognitive impairment. (Tr. at 141, 142). 

38. That Dr. Carlton opined heat (in the engine room) should not be a problem assuming that 

Respondent hydrates properly. However, rotating shifts could be a problem because he 

needs stability of shifts to maintain a normal sleep pattern. (Tr. at 142-144). 

39. Since being under the care of Dr. Carlton, and returning to work on June 3, 2004, 

Respondent has taken only those jobs that would allow his sleeping patterns to remain 

normal. (Tr. at 158, 159, 161). 

40. That Respondent believes he is capable of performing the duties as a second assistant 

engineer for Matson. (Tr. at 164). 

41. The position and work that the Respondent performs on board a vessel requires him to be 

able to perform during unexpected emergency situations that can occur at any time, day 

or night on any merchant vessel. These unexpected emergency situations inherently carry 

a certain level of stress and can affect the level of sleep that the Respondent is able to get 

when having to address any emergency situation. (Tr. at 173, 174). 
13

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. That Respondent, Patrick Beau Shea and the subject matter of this hearing are within 

the jurisdiction vested in the Coast Guard under 46 U.S.C. 7703. 

2. The Coast Guard is not precluded from issuing a complaint following a period of 

voluntary deposit of license or document and it's return. 

3. That Exhibit 2, hospitalization discharge summaries and laboratory reports from 

Respondent’s hospitalization at Lions Gate March 3 – 19, 2003 and April 4 - 22, 2003 

are admissible as part of Respondent’s medical history. 

4. That Respondent’s argument that he should not have his license and document 

revoked for alleged misconduct that was the result of an illness, and not willful or 

negligent, or even an error in judgment, is rejected. “[W]illfulness is not a necessary 

element of each and every allegation of ‘misconduct,’ and no special willfulness was 

an element of the offense charged here.” Appeal Decision 2136 (DILLON) (1978). 

Therefore, the undersigned cannot find as a conclusion of law that the Respondent’s 

illness either diminished his capacity to form specific intent or rendered him not 

legally responsible for his acts that gave rise to the Misconduct charge. Appeal 

Decision 1677 (CANJAR) (1968). 

5. That the Coast Guard did not violate Chapter 2, Section C, Paragraph 9 of the Marine 

Safety Manual. The above-referenced Marine Safety Manual section deals with 

procedures in lieu of a hearing that are to be followed only if the Coast Guard chooses 

not to initiate suspension and revocation proceedings. That section of the Marine 

Safety is not applicable to suspension and revocation hearings. 
14

6. That Respondent was operating under the authority of his license and document at the 

time of these charges. 

7. That by the preponderance of reliable, probative, and substantial evidence, the 

Misconduct charge is found proved in that at or about 0630 on December 18, 2003, 

Respondent left his watch station in the engine room of the SS EWA while underway 

transiting from Long Beach, California to Honolulu, Hawaii without a relief and was 

seen crawling on his hands and knees on the bridge wing. Respondent had to be 

relieved of his duties for failure to maintain his watch. (IO Ex. 1; Tr. at 20, 32, 33, 

177-178). 

8. That by the preponderance of reliable, probative, and substantial evidence, the 

Incompetence charge is found proved in that Respondent had to be relieved of his 

duties, placed in restraints, and confined to his quarters after displaying irrational 

behavior by packing bags with survival equipment and making it known that he 

intended to leave the ship while the ship was underway. Having been previously 

diagnosed with Schizopherniform disorder, incipient, and Bipolar mood disorder, 

mixed mood state with catatonic features, Respondent was diagnosed with Bipolar 

Disorder, current episode manic, upon admission to Queens Medical Center on or 

about December 22, 2003. Therefore, he was incompetent at the time of the incident 

on December 18, 2003. Currently taking Zyprexa, a psychotropic medication, his 

treating psychiatrist found him found fit for duty on February 13, 2004 and at the time 

of the hearing because his bipolar disorder was in remission. However, he is still a 

greater risk than the general population for breakdown symptoms. Therefore, 

Respondent is presently suffering from a mental impairment of sufficient disabling 
15

character to support a finding that he is not competent to perform safely his duties 

aboard a merchant vessel. 

9. That Respondent is not competent and fit for duty. Although Dr. Carlton opined that 

Mr. Shea’s is competent and fit for duty because, among other things, his mental 

illness is in remission, that opinion is based on Respondent continuing his 

psychotropic medication for at least 5 years, maintaining normal sleep patterns, 

controlling his weight, continuing regular contact with a psychiatrist, avoiding drug 

and alcohol abuse, using common sense, and monitoring for symptoms. Further, 

Respondent is not cured. These factors, plus the fact that Respondent still remains at 

greater risk than the general population, comprise sufficient evidence of incompetence 

subsequent to his fit for duty declaration. 

DISCUSSION

“Incompetence is the inability on the part of a person to perform required duties, whether 

due to professional deficiencies, physical disability, mental incapacity, or any combination 

thereof.” 5

 “No one who is suffering from a psychiatric disability should be permitted to serve 

aboard any vessel...in a capacity in which he could cause serious harm to himself, to others, or 

the vessel itself.”6

 Dr. Carlton opined that Respondent would be more of a threat to himself than 

to others in the event of a relapse. However, judging from Respondent’s acts aboard EWA on 

December 18, 2003, his acts of attempting to abandon ship and disturbing the ship’s safety gear 

also present potential danger to the vessel and its crew. 

 

5

 46 CFR 5.31.

6

 Appeal Decision 2417 (YOUNG) (1985) citing Appeal Decision 2181 (BURKE) (1980), modified sub nom. 

Commandant v. Burke, 2 NTSB 2784 (Order EM-83, (1980). 
16

The regulations authorize the Coast Guard to investigate and issue a complaint if 

reasonable grounds exist to believe that the holder of a license may have committed an act of 

incompetence while acting under the authority of the holder’s license or document.7 At a 

hearing, a finding of mental incompetence must rest upon substantial evidence of a reliable and 

probative nature that the person charged suffers from a mental impairment of sufficient disabling 

character which renders the person unable to safely perform his duties aboard a merchant vessel.8

At a revocation hearing, “ordinarily, any allegation of incompetence must be based on sufficient 

evidence subsequent to any fit for duty declaration by the USPHS (U.S. Public Health Service) 

or it should not be proved.”9

 “The only proper order for a charge of incompetence if found 

proved (by the preponderance of the evidence) is revocation.”10 

Decision

By the preponderance of reliable, probative, and substantial evidence I find that the 

Incompetence and Misconduct charges are proved. It is clear from the evidence in this case that 

the Respondent, Patrick Beau Shea, currently suffers from a psychiatric condition that would 

affect adversely his ability to serve at sea. Subsequent to the incidents that gave rise to the 

incompetence charge, Mr. Shea was hospitalized and diagnosed with Bi-polar Disorder – current 

episode manic. 

He has been taking Zyprexa, a psychotropic drug, and according to Dr. Carlton his illness 

is currently in remission. As such, Dr. Carlton opines that Respondent is now competent and fit 

for duty. However, Dr. Carlton also states that bipolar disorder is a chronic illness that requires 

long-term management and could not say with certainty that Mr. Shea would not have 

 

7

 46 CFR 5.101(a)(1) and 5.105(a). 

8

 Appeal Decision 2417 (YOUNG) (1985). 9

 Appeal Decision 2417 (YOUNG) (1985) citing Appeal Decision 2280 (ARNOLD) (1982). 1046 CFR 5.569(d); 46 CFR 5.61(a)(9); 33 CFR 20.701). 
17

breakthrough episodes because it is difficult to judge the illness’ course. Dr. Carlton expects a 

sustained remission but, even so, one who is in remission still has a greater risk of breakthrough 

episodes than someone who does not have bipolar disorder. Moreover, it is not certain that 

Respondent will remain symptom free even if he is compliant and takes his medication because 

the course of the illness is highly variable. In accordance with 46 CFR 5.569(d), 5.61(a)(9) and 

33 CFR 20.701, the only proper order for a charge of incompetence if found proved (by the 

preponderance of the evidence) is revocation. 

The credible testimony of the SS EWA’s Chief Officer Jeff Hood and the Master, 

Captain Thomas M. Stapleton, together with his log,11 comprises the preponderance of reliable, 

probative, and substantial evidence to prove the factual incidents of the Misconduct and 

Incompetence charges. Also, the credible testimony of Dr. Barry S. Carlton, MD, plus the 

exhibits, comprise the preponderance of medical evidence to prove that Respondent currently 

suffers from a mental impairment of sufficient disabling character that renders him unable to 

perform his duties safely aboard a merchant vessel. Moreover, Dr. Carlton’s prognosis that 

Respondent sill poses a greater risk for breakthrough episodes than the general population 

comprises sufficient evidence of incompetence subsequent to his finding Mr. Shea fit for duty. 

Because Respondent remains at greater risk than the general population for having 

breakthrough episodes even if fully compliant, I cannot accept Dr. Carlton’s opinion that 

Respondent is competent and fit for duty. “[T]he administrative law judge is not bound by the 

recommendations of the psychiatrist or even the medical findings and opinion...the ultimate 

finding as to fitness of the person is a function of the Administrative Law Judge.”12 

 

11 (I/O Ex. 1). 

12 Appeal Decision (2191) BOYKIN (1980). 
18

Dr. Carlton’s opinion that Respondent is fit for duty opinion is not unqualified. It carries 

many caveats or warnings: Dr. Carlton anticipates at least five years of asymptomatic condition 

before he would even consider recommending discontinuing the medication.13 The course of 

Respondent’s remission and the chances that he will have breakthrough episodes cannot be 

predicted and it cannot be said with certainty that he will not have a breakthrough episode.14 The 

medicines are helpful in preventing breakthroughs but it (absence of breakthrough episodes) 

cannot be guaranteed. There is always an ongoing risk.15 Respondent will not be cured but will 

remain in remission because Bipolar disorder is chronic that requires long-term management.16 

The National Institutes of Mental Health recommend medication maintenance and ongoing 

regular psychotherapeutic contact. In addition, he must avoid substance and alcohol abuse and 

focus on wellness (exercise and weight control), plus he must use common sense stress 

management.17 Maintenance of normal sleep patterns is also important in symptom 

management.18 Even if Respondent remains in remission; that is, symptom free, for five years 

and continues to take Zyprexa for that period of time, he still remains at greater risk than the 

(general) population for an exacerbation of illness. The inference from Dr. Carlton’s caveats is 

that no matter how compliant Respondent is with his regimen of medication and lifestyle 

practices, at best, his illness still puts him at greater risk than the general population for 

breakthrough episodes. 

Dr. Carlton testified that there are patients who maintain remission for many years19 and, 

to that extent, there is no evidence from Mr. Shea of rapid cycling or frequent episodes of illness. 

 

13 Tr. at 105. 

14 Tr. at 107, 109. 

15 Tr. at 108. 

16 Tr. at 109. 

17 Tr. at 110. 

18 Tr. at 113. 

19 Tr. at 107. 
19

Dr. Carlton says Mr. Shea has good mood stability, good thought stability, and absence of 

daytime sedation (sleepiness). There is no evidence of abnormal thinking, either logic or odd 

ideas, and no evidence of abnormal mood stability, elevation, or depression that cause problems 

with behavior. Further, Dr. Carlton says that with Mr. Shea’s insight and medication 

management, Mr. Shea can increase the medicine himself if he has breakthrough symptoms.20

His opinion on Respondent’s insight is based on when Mr. Shea was initially discharged from 

Queen’s Medical Center, he was able to report symptoms and he sought advice as to how to 

manage them. Respondent believes he has the ability to self medicate if necessary. Further, he 

must keep track to make sure that he doesn’t have any odd ideas or odd behaviors that would 

signal the beginning of another illness episode, plus he must manage his weight since weight 

gain is one of the side effects of Zyprexa.21 

In reviewing Respondent’s course of treatment starting with the discharge summaries 

from Lions Gate Hospital in March and April of 2003 through his inpatient treatment at Queen’s 

Medical Center from on or about December 22, 2003 through January 6, 2004 and the present 

outpatient treatment, there is no question that Dr. Carlton’s treatment is responsible for Mr. 

Shea’s favorable prognosis and it appears that Respondent may very well continue to remain 

symptom free as long as he is compliant with his medication and properly manages lifestyle 

issues, including weight control and normal sleep patterns. Or, he may not. The only thing that 

is known for sure is that despite his insight and efforts in lifestyle management and sleep 

patterns, he still remains at greater risk for breakthrough symptoms than the general population. 

Adding to this uncertainty is the reasonably foreseeable likelihood of emergency situations 

arising aboard ship creating stress and unpredictable sleep patterns. Moreover, the greater 

 

20 Tr. at 108, 109. 

21 Tr. at 113-115, 162 . 
20

likelihood of other circumstances such as having to stand additional watches for another 

engineer, as when the Third Assistant Engineer had to take over Respondent’s watches, 

inadvertently may place Respondent at greater risk for breakdown episodes despite his insight 

and perceived ability to adjust his medication. It is no reflection on this Respondent, but all 

other qualifications being equal, his illness leaves him less than fully qualified compared to his 

peers who do not have Bipolar disorder. 

I find Dr. Carlton a very credible witness and accord great weight to his opinions except 

for his opinion that Respondent is competent and fit for duty. Less weight is accorded that 

opinion because it is based on the premise that Respondent will control his symptoms by being 

compliant with his medications and properly manage lifestyle issues and sleep patterns because 

he has sufficient insight to identify symptoms and take appropriate and timely action. Although 

Dr. Carlton’s fit for duty opinion is based on a review of Matson’s Second Assistant Engineer 

job description,22 it is reasonable to infer that prolonged exposure to heat,23 rotating shifts that 

disrupt sleep patterns,24 and emergency situations,25 are unpredictable and would tend to impact 

adversely on Respondent’s ability to manage lifestyle issues. This greater risk for breakthrough 

episodes is sufficient evidence subsequent to his treating psychiatrist finding him fit for duty to 

find the Incompetence charge proved. As noted above, the only sanction for a proved finding of 

Incompetence is revocation. 

 “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 

 

22 Respondent’s Ex. “A” 

23 Tr. at 142 

24 Tr. at 143, 158, 159. 

25 Tr. at 172-174. 
21

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.” 26 

Abandoning his watch station in the engine room at 0630 without a relief on December 

18, 2003, being observed crawling on his hands and knees on the bridge wing of the SS EWA 

while it was underway, and having to be relieved of his duties for failure to maintain his watch 

comprises the preponderance of reliable, probative, and substantial evidence to find the 

Misconduct charge proved. Respondent’s inability to resume his watch created a situation on 

EWA in which the Third Assistant Engineer took over Mr. Shea’s duties, in addition to his own, 

thereby reducing the number of qualified personnel available for other shipboard duties as well 

as reducing the ship’s ability to adequately respond to emergencies. 

Affirming a hearing examiner’s (now ALJ) finding of guilt on three counts of 

Misconduct involving failure to stand watch and Unauthorized Absence, the Commandant held 

that “[w]hen an able bodied seaman wrongfully fails or is unable to perform his duties there is 

‘harm done.’ The ship’s organization and operations are affected. Someone else must be used to 

perform his duties. In the event that the master is forced to use a less qualified person, or an 

equally qualified person who is overtired, the additional, potential danger is great.” 27 With the 

exception of Misconduct for wrongful possession, use, sale, or association with dangerous drugs, 

revocation is not a mandatory sanction if Misconduct is found proved. “When the finding (of 

Misconduct) is proved, the Administrative Law Judge may order an admonition, suspension with 

or without probation, or revocation.” 28

 

26 46 CFR 5.27. 

27 Appeal Decision 1731 MILLS (1968). 28 46 CFR 5.567 
22

Pre-Hearing Brief

On September 30, 2004 counsel for Respondent filed a pre-hearing brief. Since there was 

not sufficient time for the Coast Guard to respond in writing and for the undersigned to issue a 

written Order prior to convening the October 6th hearing, the issues raised in counsel’s prehearing brief, except item “C”, were argued and ruled on at the beginning of the hearing. Item 

“C” could not be ruled on pre-hearing because testimony from Respondent’s treating psychiatrist 

had not yet been heard. In item “C”, Respondent argues that if there is sufficient evidence 

subsequent to the “fit for duty” declaration that the mariner is competent and can safely perform 

his duties aboard a merchant vessel; the mariner should retain his license and document. 

Post-Hearing Brief

In his post hearing brief, Respondent made the following arguments: that he was 

competent when his voluntarily deposited documents were returned to him by the Coast Guard; 

that he was competent subsequent to the fit for duty declaration; that the Misconduct charge 

should be dismissed; that there is lack of authentication and/or certification (on the discharge 

summaries from Lions Gate Hospital); and that admitting only a portion of the unauthenticated 

discharge summary records from Lions Gate Hospital is prejudicial. 

The item “C” argument in Respondent’s pre-hearing brief in which he argues that if there 

is sufficient evidence subsequent to the “fit for duty” declaration that the mariner is competent 

and can safely perform his duties aboard a merchant vessel, the mariner should retain his license 

and document, will be discussed together with the post-hearing brief argument that he was 

competent when his voluntarily deposited documents were returned to him and that he was 

competent subsequent to the fit for duty declaration. 
23

Incompetence Subsequent to the Fit for Duty Declaration

 “[A] finding of incompetence due to mental incapacity must rest upon substantial 

evidence of a reliable and probative character showing that the person charged suffers from a 

mental impairment of sufficient disabling character to support a finding that he is not competent 

to perform safely his duties aboard a merchant vessel.”29 “[O]rdinarily, any allegation of 

incompetence must be based on sufficient evidence subsequent to any fit for duty declaration by 

the USPHS (United State Public Health Service) or it should be found not proved.30 Respondent 

argues that if subsequent to the fit for duty declaration there is sufficient evidence that the 

mariner is competent and can safely perform his duties aboard a merchant vessel, the mariner 

should retain his license and document. Respondent also argues that since being declared fit for 

duty, he has ably and safely performed his duties aboard the vessels to which he has been 

assigned. In addition, he has taken his medications as ordered and has not suffered a relapse. 

Clearly, Respondent adds, when the I/O returned his documents he must have reasonably 

believed that Shea was fit for duty; otherwise returning his license and document was 

irresponsible and a dereliction of duty. Respondent urges that when a seaman has shown that he 

is fit for sea duty at the time of the hearing, he should be allowed to resume his duties. 

Respondent’s argument that when the I/O returned his license and document he must 

have believed Shea was fit for duty; otherwise returning them was irresponsible and a dereliction 

sounds compelling but it is misplaced. When the I/O returned Mr. Shea’s license and document, 

that act did not constitute a belief that the Coast Guard agreed with Dr. Carlton’s opinion that 

Respondent was fit for duty because Respondent was simultaneously served with the instant 

Complaint. After a Complaint is served and the Respondent requests a hearing, the decision on 

 

29 Appeal Decision 2417 (YOUNG) (1985) citing 46 CFR 5.31; Appeal Decision 2181 (BURKE) (1980). 30 Appeal Decision 2417 (YOUNG) (1985) citing Appeal Decision 2280 (ARNOLD) (1982). 
24

fitness to hold a license rests with the administrative law judge and until Respondent is accorded 

his full due process rights, his license and document cannot be involuntarily taken away from 

him. 

Respondent’s argument that if subsequent to the fit for duty declaration there is sufficient 

evidence that the mariner is competent and can safely perform his duties aboard a merchant 

vessel, the mariner should retain his license and document is also misplaced. The legal standard, 

as set forth in Appeal Decision 2417 (YOUNG) (1985) citing Appeal Decision 2280 (ARNOLD)

(1982) is that “ordinarily, any allegation of incompetence must be based on sufficient evidence 

subsequent to any fit for duty declaration by the USPHS or it should be found not proved.” The 

standard in YOUNG and ARNOLD is different from what Respondent is arguing. Respondent 

seems to be saying that all he needs to show is that he has been compliant with his medication 

management and has not had any breakdown symptoms; therefore, it must be inferred that he is 

competent and can safely perform his duties aboard a merchant vessel. As stated in ARNOLD

and YOUNG, the standard is that there must be sufficient evidence (of incompetence) 

subsequent to any fit for duty declaration. If Respondent’s argument were the legal standard, 

evidence of a seaman’s mental illness in remission could never prevail over a showing that there 

have not yet have been any breakdown symptoms since the incident because one who is in 

remission experiences an absence of symptoms. As a result, any mental illness for which one is 

taking psychotropic medication to maintain remission would not be disqualifying unless and 

until the seaman has breakdown symptoms. 

While Respondent is free to “prove” that since the fit for duty declaration he has been 

compliant and has not had any breakthrough symptoms, “any allegation of incompetence must be 
25

based on sufficient evidence subsequent to any fit for duty declaration ....”31 In response to 

counsel’s question, “[i]f he continues to take his medication, to a reasonable degree of medical 

certainty, will he remain symptom free?” Dr. Carlton replied, “I could not say with certainty.” 32 

As stated, I find Dr. Carlton’s opinion expressing qualifiers and caveats on his fit for duty 

declaration to comprise “sufficient evidence” of incompetence at the time of the hearing. 

Dismissal of the Misconduct Charge

The undersigned rejected Respondent’s argument made at the beginning of the hearing 

and in part “B” of his pre-hearing brief that he should not have his license and document revoked 

for alleged misconduct that was the result of an illness, and not willful or negligent, or even an 

error in judgment. The same argument is made in part B of his post hearing brief. As cited and 

argued by the I/O, Appeal Decision 1677 (CANJAR) (1968) stands for the proposition that a 

misconduct charge need not be dismissed merely because the examiner finds that at the time of 

the act’s omission, the party was not mentally competent to hold the seaman’s license or 

document. In CANJAR the Commandant stated, “[t]hat a condition of mental incompetence, 

such as to disqualify a person from holding a seaman’s license or document, is not ‘equatable’ to 

a state of legal insanity, which is to constitute a defense against a criminal charge incident. The 

tests are entirely different...that I so wish to make it clear that there is no compulsion on an 

examiner to dismiss a charge of misconduct merely because he finds that at the time of 

commission of the act the party was not mentally competent to hold the seaman’s license or 

document.” 33 After acknowledging the holding in CANJAR concerning legal insanity and 

 

31 Appeal Decision 2280 (ARNOLD) (1982). 32 Tr. at 134, 135. 

33 Tr. at 15, 16 quoting CANJAR). 
26

further stating that these are not specific intent type crimes, (wherein a defense of diminished 

capacity could be used to negate intent), I denied the motion to dismiss the Misconduct charge.34 

In Appeal Decision 1466 (SMITH) (1964), the Coast Guard charged Respondent with 

Misconduct and Incompetence for killing another member of the ship’s crew while in Africa. A 

Congolese court had previously found that the homicide was proved but that it was excusable by 

reason of insanity. The Examiner found both the misconduct and the incompetence charges 

proved but on appeal, the Commandant opined that the findings of Examiner were inconsistent 

and the misconduct charge must yield to the incompetence charge because the Examiner 

specifically found that the homicide was committed during the period of mental insanity. In the 

instant case, there was no evidence presented that Respondent was insane. In SMITH, the 

Commandant recognized “that in proceedings looking to the preservation of safety at sea the test 

of incompetence is not such as is required to establish a defense to a criminal charge. In many 

instances one act may be an act of misconduct for which the party is responsible and may also 

demonstrate a degree of incompetence for sea service.” Applying SMITH and CANJAR to the 

instant case, absent a finding by a court of competent jurisdiction that Respondent was insane at 

the time of the incidents and remained so at the time of the hearing, there is no legal basis to 

dismiss an otherwise proved misconduct charge. 

Respondent also argues that like his mental illness, diabetes is a chronic, incurable 

disease but symptoms can be ameliorated by proper therapy, medication, and diet. He cites 

Appeal Decision (2547) (PICCIOLO) (1992) in which the Commandant remanded the ALJ’s 

decision directing the ALJ to permit evidence of the mariner’s recent medical condition, 

prognosis, and impact that any medical monitoring program will have on his ability to perform 

his job. Implicit in this argument is that some sort of accommodation should be made for the 

 

34 Tr. at 18. 
27

mariner to minimize the effects of diabetes. While this might be true for physical illness, the 

Commandant has made it clear that “no one who is suffering from a psychiatric disability should 

be permitted to serve aboard any vessel...in a capacity in which he could cause serious harm to 

himself, to others, or the vessel itself.”35 Dr. Carlton has opined that even with proper 

medication management and adherence to lifestyle issues, Respondent is still vulnerable to 

breakdown symptoms more so than the general population. 

Lack of Authentication on the Discharge Summaries

In considering whether the photocopies of the Lions Gate medical records were authentic, 

I used the framework of Federal Rule of Evidence (FRE) 901 “Requirement of Authentication 

and Identification” which states in paragraph (a) “The requirement of authentication or 

identification as a condition to admissibility is satisfied by evidence sufficient to support a 

finding that the matter in question is what its proponent claims.” Section (b)(1) of FRE 901 

provides that by way of illustration only, and not by way of limitation, testimony of a witness 

with knowledge that the matter is what it is claimed to be is an example of authentication or 

identification conforming with the requirement of this rule. The records were in Respondent’s 

possession and were relied upon by Respondent in support of his claim to MEBA.36 An 

examination of the discharge records reveals that they were dictated and accepted by Dr. 

Christian H. Schenk, MD, Respondent’s treating psychiatrist at Lions Gate. At the top of each 

page is the name, “Lions Gate – Health Record,” a machine made printing consistent with a 

facsimile machine stamp of origin. Additionally, the lab reports attached to the discharge 

records also carry the name, “Lions Gate Hospital.” Attached to the records is a cover letter with 

the letterhead reading, “C.H. Schenck, MD, PRCP(C) Psychiatry.” The subject line reads “Re: 

 

35 Appeal Decision 2417 (YOUNG) (1985) citing BURKE. 36 I/O Ex. 2 at 4. 
28

Patrick Shea.” It also contains a signature block reading, “Dr. Chris Schenck, MD” and a 

signature that clearly reads, “C Schenck.” The letter is addressed “Dear Colleague” and 

summarizes Respondent’s course of treatment. The summary in the letter is consistent with the 

contents of the attached discharge records. Attached to the cover letter is a letter from MEBA 

Medical & Benefits Plan stating additional information is required to process Respondent’s claim 

for medical care payment for treatment provided from March 3, 2003 to April 16, 2004 (the start 

and end dates of Respondent’s medical care received at Lions Gate Hospital). The letter asks 

four questions and contains a notation in the above right hand corner that reads, “Called Nancy 

@ 10:35 AM 8/19/03 Gave Requirements 1-4.” Respondent also handed these discharge 

summaries to Captain Stapleton on December 18, 2003 as an explanation of his conduct. 

Additionally, Captain Stapleton, the company’s doctor, and Respondent’s current treating 

psychiatrist, relied upon these documents. 

In his post-hearing brief, Respondent cites Appeal Decision 903 MAHOOD (1956) that 

the records must be certified or authenticated as true and accurate copies before being introduced 

into evidence. In MAHOOD, the Respondent was charged with Misconduct based on assault 

and battery with a knife. Failing to appear for his hearing, Mahood was tried in absentia and the 

charges were found proved based largely on entries made in the master’s logbook. On appeal, 

Mahood argued, among other things, that the logbook evidence submitted was entirely hearsay 

and therefore not sufficient to support the findings. The Commandant found that the log entry 

was made in the regular course of business and is admissible as an exception to the hearsay rule 

on the principle of necessity and in accordance with the Official Records Statute (28 U.S.C. 

1733) as an official document since it is an entry required by law. The Commandant went on to 

say that, “[i]t has been the consistent position of the Commandant that copies of such documents, 
29

when certified in proper form by Coast Guard officers performing investigating duties under the 

delegated authority of the Commandant, meet the requirements of authentication for the 

admission of copies in evidence in these administrative proceedings where the technical rules of 

evidence are not strictly applied.” Unlike the records in MAHOOD, the discharge records in 

question came into possession of the government through Respondent. He used these them in his 

request to MEBA that the hospital bill be paid and he also tendered them to Captain Stapleton as 

his implicit explanation for his conduct during the incidents that gave rise to these charges. 

Captain Stapleton did not question the authenticity of these medical records in his conversations 

with the company doctor. Finally, neither the emergency room personnel nor Respondent’s 

treating psychiatrist questioned the records’ authenticity in the course of providing medical care 

to Respondent. These records were an integral part of Respondent’s medical history and were 

relied upon by him and others in the course of his illness. In MAHOOD, the log entries 

comprised the only direct evidence used in finding the charge proved. In this case, the Lions 

Gate discharge summaries help form an integral part in the longitudinal history of Respondent’s 

illness and are not relied upon solely as the basis for proving the charges, as was the case in 

MAHOOD. 

Respondent also cites Appeal Decision 1579 (HARRISON) (1966) that evidence received 

in lieu of witness testimony, which cannot be authenticated by a witness as records kept in the 

regular course of business, cannot provide the sole basis for findings of fact. As in MAHOOD

above, Harrison failed to appear and the hearing proceeded with Respondent in absentia. Also, 

as in MAHOOD, all of the evidence was documentary. On appeal, the Commandant found that 

“[t]he evidence which was received by the Examiner in lieu of testimony of witnesses, 

documents which are not part of the official Log Book and which, while not identified in any 
30

way by any competent witness, do not purport to be records kept in the regular course of 

business, is pure hearsay. As such it cannot be the sole predicate for findings of fact.” Unlike 

MAHOOD and HARRISON, the records in the instant case do not comprise the sole predicate 

for findings of fact. Everyone having anything to with Respondent’s treatment since the incidents 

on December 18, 2003, has referred to or relied upon these records. They form the necessary 

background and starting point for Respondent’s medical history and do not constitute the sole, 

dispositive evidence on the charges as in MAHOOD and HARRISON, above. 

Prejudicial Effect

Respondent argues that the discharge summaries are incomplete and that there must be 

relevant records still extant that should accompany those introduced. Further, he urges that the 

missing records would help explain the conclusions and assertions made in the discharge 

summaries. In addition, he cites FRE 106 as authority. FRE 106 states “[w]hen a writing or 

recorded statement or part thereof is introduced by a party, an adverse party my require the 

introduction at that time of any other part or any other writing or recorded statement which ought 

in fairness to be considered contemporaneously with it.” Respondent states that FRE 106 was 

drafted because of concern that the court not be misled because portions of a statement are taken 

out of context thereby creating prejudice. 

I reject these arguments.39 I found no evidence to question to accuracy, authenticity, or 

completeness of the discharge summaries. They are clear and unambiguous on their face. There 

is no evidence that any of medical personnel involved in Respondent’s treatment who referred to 

these records requested the underlying treatment notes. In addition, Respondent never 

 

39 To meet the FRE 106 standard, the other writings must be relevant to the issues and must be necessary to (1) 

explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) 

insure a fair and impartial understanding. United States v. Soures, 736 F.2d 87, 91 (3rd Cir, 1984), cert. denied, 469 

U.S. 1161, 105 S. Ct. 914, 83 L.Ed, 2d 927 (1985). Accord, United States v. Glover, 101 F.3d 1183, 1190 (7th Cir. 
31

questioned these records. The addition of the underlying treatment notes absent a compelling 

reason to question the discharge summaries’ accuracy amounts to a needless presentation of 

cumulative evidence. 40

SANCTION

There is no evidence that Respondent has any previous disciplinary actions. The Master 

of the SS EWA testified that that prior to these incidents, Respondent had been a very alert and 

responsible officer. (Tr. at 81). Regardless of Respondent’s prior history, however, the only 

proper order for a proved charge of Incompetence is Revocation. 46 CFR 5.569(d), 5.61(a)(9) 

and 33 CFR 20.701. 

 1996); United States v. Branch, 91 F.3rd 699, 727-29 (5th Cir. 1996), cert. denied, 520 U.S. 1185, 117 S.Ct. 1467, 

137 L.Ed.2d 681 (1997). 

40 33 CFR 20.802(b). 
32

ORDER

IT IS HEREBY ORDERED that the license and document issued to Respondent, Patrick 

Beau Shea, be and hereby is, REVOKED. Respondent is to turn over his license and document 

to the Investigating Officer at Coast Guard Sector Honolulu, Hawaii immediately. 

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 January 25, 2005 

New York, New York 

________________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD 
33

ATTACHMENT A

NOTICE OF ADMINISTRATIVE 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 -- 
34

(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. 
35

ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST 

COMPLAINANT’S WITNESSES 

1. Jeff Hood, Chief Officer, SS EWA. (Tr. 28-50). 

2. Captain Thomas M. Stapleton, Master, SS EWA. (Tr. 51-89). 

3. Dr. Barry S. Carlton, MD, Respondent’s treating psychiatrist. (Tr. 89 – 148). 

RESPONDENT’S WITNESSES 

1. Dr. Barry S. Carlton, MD, Respondent’s treating psychiatrist (Tr. 89 – 148). 

(Judicial economy and convenience of the witness necessitated Respondent examining 

Dr. Carlton during I/O’s case in chief). 

2. Patrick Beau Shea, Respondent (Tr. at 148 – 180). 

EXHIBIT LIST 

COMPLAINANT’S EXHIBITS 

I/O Ex. 1 Statement of Captain Thomas M. Stapleton, Master, SS EWA. 4 pages. (Tr. at 61) 

I/O Ex. 2 Discharge Summaries from Lions Gate Hospital, North Vancouver, British Columbia, 

Canada handed to Captain Stapleton by Respondent. 21 pages. (Tr. at 68). 

I/O Ex. 3 Photograph of a life raft and two bags dragged aft by Respondent. Photo taken by 

Captain Stapleton. 1 page. (Tr. at 75). 

I/O Ex. 4 Resume/CV of Dr. Barry S. Carlton, MD. 6 pages. (Tr. at 93). 

I/O Ex. 5 Counsel for Respondent’s letterhead and handwritten “fit for duty” letter from Dr. 

Carlton. 2 pages. (Tr. at 100). 

I/O Ex. 6 Counsel for Respondent’s letterhead and “diagnosis” and prognosis by Dr. Carlton. 2 

pages. (Tr. at 104). 
36

RESPONDENT’S EXHIBITS 

Respondent Ex. “A” Second Engineer Job Description from Respondent’s employer – Matson. 

 

JUDGE’S EXHIBITS 

None. However, official notice was taken of the following: 

Appeal Decision (1677) CANJAR (1968) during the hearing. (Tr. at 16). 

Chapter 2, Section C, Paragraph 9 of the Marine Safety Manual. (Tr. at 17). 

The Physician’s Desk Reference – used by the I/O when questioning Dr. Barry S. Carlton, MD. 

(Tr. at 119). 

The undersigned took official notice of all the cases cited by the parties, in addition to the 

regulations found at 33 CFR Part 20 as well as 46 CFR Part 5. 

 
37

ATTACHMENT C

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

COMPLAINANT’S PROPOSED FINDINGS 

1. On December 18, 2003, Patrick Beau Shea was employed on board the Steamship 

EWA as the Second Assistant Engineer. (Tr. at 31). (Accepted and incorporated). 

2. The Respondent did leave his station in the engine room, and was observed crawling 

on his hands and knees on the bridge wing, while the vessel was underway (I.O. 

Exhibit 1, Statement by Captain Tom Stapleton, Master of the SS EWA; Statement by 

Mr. Hood). (Accepted and incorporated). 

3. Respondent was relieved of duty and confined to quarters during the remainder of the 

vessel’s voyage. (I.O. Exhibit 1, Statement by Captain Tom Stapleton and Chief Mate 

Hood). (Accepted and incorporated). 

4. The Respondent had packed bags with survival equipment and made it known that he 

intended to leave the ship while it was underway between Los Angeles, CA and 

Honolulu, HI (I.O. Exhibit 1, Statement of Captain Stapleton; I.O. Exhibit 3 Picture 

of life raft and bags of survival equipment found; Mr. Hood’s statement). (Accepted 

and incorporated). 

5. During the time that the Respondent was first confined to quarters, he gave Captain 

Stapleton, Master of the SS EWA, a copy of discharge summaries from Lion’s Gate 

Hospital, Vancouver, Canada. These discharge summaries showed that the 

Respondent had been admitted in March and again in April of 203. During which 
38

time he had been diagnosed with bipolar mood disorder (I.O. Exhibit 1, Statement of 

Captain Stapleton; I.O. Exhibit 2, Discharge summaries from Lion’s Gate Hospital; 

(Captain Stapleton’s testimony). (Accepted and incorporated). 

6. After the SS EWA docked in Honolulu, HI, the Respondent was admitted to Queen’s 

Medical Center from December 21, 2003 and was discharged on January 6, 2004. 

While at Queen’s Medical Center, Barry S. Carlton, M.D. evaluated the Respondent 

and diagnosed him with bipolar disorder – manic (Exhibit 4, Curriculum Vitae of 

Barry Stuart Carlton, M.D.; I.O. Exhibit 5 Handwritten letter from Dr. Carlton; I.O. 

(Exhibit 6 Letter from Mr. O’Kane with notes from Dr. Carlton; Dr Barry S. 

Carlton’s testimony). (Accepted and incorporated). 

7. The respondent’s bipolar disorder is a chronic disorder that requires long-term 

management. Dr. Carlton couldn’t be certain that the Respondent wouldn’t have a 

breakthrough episode. (Dr. Carlton’s testimony). (Accepted and incorporated). 

8. Dr. Carlton prescribed the Respondent Zyprexa, a psychotropic drug, with no 

indication as to if or when it would be discontinued. He also anticipated a five-year 

medication management and follow-up evaluation. This will aid in keeping the 

Respondent’s disorder in remission but there is no cure for this disorder. It is also 

difficult to judge the course of the illness. “There are patients who go on to maintain 

remission; that is, absence of symptoms for many years. And then there are also those 

who, despite medication, do have breakthrough symptoms.” (Dr. Barry S. Carlton’s 

testimony). (Accepted and incorporated). 

9. The Respondent is also required to self-monitor and maintain a life style that requires 

exercise, stress management and a normal sleep pattern. Dr. Carlton should monitor 
39

the Respondent on a regular basis to ensure that there is no relapse. During times 

when Dr. Carlton cannot monitor the Respondent, the Respondent will have to rely on 

self-monitoring to try and identify any possible relapse symptoms. (Dr. Carlton’s 

testimony; Patrick Shea’s testimony). (Accepted and incorporated). 

10. The position and work that the Respondent performs on board a vessel requires him 

to be able to perform during unexpected emergency situations that can occur at any 

time, day or night on any merchant vessel. These unexpected emergency situations 

inherently carry a certain level of stress and can effect the level of sleep that the 

Respondent is able to get when having to address any emergency situation. (Patrick 

Shea’s testimony). (Accepted and incorporated). 

11. There are certain side effects associated with Zyprexa, such as the potential to impair 

judgment, thinking, or motor skills. Patients are cautioned about operating hazardous 

machinery. Patients taking this medication are also advised about exposure to extreme 

heat and being exposed to dehydration. (Physicians Desk Reference; Dr. Carlton’s 

testimony). (Accepted but not incorporated. Dr. Carlton opined that Respondent has 

taken Zyprexa for a sufficient period of time that those side effects would have 

manifested by now; however, Dr. Carlton opined that extreme heat is managed with 

proper hydration and that was incorporated). 

12. The Respondent’s working environment requires him to work around heavy 

machinery and temperatures in excess of a one hundred twenty degrees Fahrenheit. 

(Captain Stapleton’s testimony; Patrick Shea’s testimony). (Accepted and 

incorporated). 
40

13. Should Respondent remain symptom free and continue to take Zyprexa for five years, 

he remains at a greater risk than the population for an exacerbation of illness. (Dr. 

Carlton’s testimony). (Accepted and incorporated). 

14. Psychiatric illness has a pattern of behavior, making it possible to anticipate that the 

Respondent would display the same type of thinking and behavior during a relapse. 

(Dr. Carlton’s testimony). (Accepted to the extent that Dr. Carlton opined that 

Respondent has had this pattern – odd ideas about religiosity and about being 

anointed. He would now recognize these behaviors). 

Ultimate Findings

1. Patrick Beau Shea, being the holder of U.S. Coast Guard license number 879580 and 

merchant mariner’s document number [REDACTED], on December 18, 2003, was 

working on board the SS EWA as the Second Assistant Engineer. While on board Mr. 

Shea abandoned his post in the engine room and was witnessed crawling on his hands 

and knees around the vessel’s bridge. Concern for Mr. Shea’s behavior and crew 

safety that day caused him to be restrained by the crew and confined to quarters for 

the remainder of the vessel’s voyage. (Accepted and incorporated). 

2. After the SS EWA docked in Honolulu, Hawaii, Mr. Shea was removed from the 

vessel and admitted to Queen’s Medical Center in Honolulu, Hawaii. Mr. Shea was 

psychiatrically evaluated by Dr. Barry S. Carlton, M.D. Dr. Carlton diagnosed Mr. 

Shea with Bipolar disorder, and subsequently prescribed Zyprexa, a psychotropic 

drug, with continued psychiatric monitoring and life-long maintenance. (Accepted 

and incorporated). 
41

Conclusions of Law

1. The United States Department of Transportation (DOT) and the Coast Guard is 

charged with enforcing the United States Law or regulations intended to promote 

marine safety or to protect navigable waters against the holder of a license or 

merchant mariner’s document, if the holder is found to have “committed an act of 

incompetence.” (46 U.S.C. 7703). (Accepted and incorporated to the extent that the 

Coast Guard is now under the Department of Homeland Security). 

2. The Coast Guard met its burden of proof by reliable, probative and substantial 

evidence as required under 33 CFR 20.702, that the Respondent is incompetent to hold 

any Coast Guard issued Merchant Mariner’s Credentials (i.e. Coast Guard issued 

License and Coast Guard issued merchant mariner’s Document). (Accepted and 

incorporated by the preponderance or reliable, probative, and substantial evidence). 

3. An order of revocation was affirmed in Commandant’s Decision on Appeal (CDOA) 

BURKE 2182, when it was “established that the Appellant has suffered what 

apparently were “psychotic breaks,” severe enough to require hospitalization on two 

occasions and to require his relief from duty aboard a vessel...” Also it was 

determined that, “the diagnosis of current remission is said to mean “that the psychotic 

state is inactive at the present time, but the psychotic episodes have a tendency to 

recur in this patient. [Appellant’s] risk of a future psychotic break cannot be stated n 

percentage form but it can be said to be greater than that of a person who has no 

history of mental illness.” (Accepted and incorporated). 

4. The Commandant affirmed an order of revocation for incompetence in CDOA 

BOYKIN 2191, whereby the Administrative Law Judge (ALJ), “concluded that 
42

Appellant was mentally incompetent at the time of the assault. He additionally 

concluded that Appellant was not fit for duty because he was required to remain on 

medication.” It was also noted that, “appellant’s psychiatrist opined that while 

Appellant was mentally incompetent during the alleged assault, he is fit for duty as a 

merchant seaman.” With (sic) the Commandant acknowledged that ALJ, “concluded 

that Appellant was not fit for duty” and that the ALJ, “is not bound by the 

recommendations of the psychiatrist or even by the medical findings and opinion.” 

(Accepted and incorporated). 

5. Commandant noted in CDOA WILLIAMS 1502 the following, “I am convinced that 

Appellant’s failure to do his job properly was due to his mental illness which cannot 

be blamed on other conditions on the ship. Appellant’s fears, suspicions and other 

signs of his emotionally disturbed state of mind were symptoms of this mental 

illness.” The Commandant concludes, “...in the absence of any showing his condition 

has been cured, Appellant is mentally incompetent to perform duties on a vessel at 

sea.” (Accepted and incorporated to the extent that in the absence of any showing that 

Mr. Shea’s condition has been cured, he is mentally incompetent to perform duties on 

a vessel at sea). 

6. The Coast Guard is seeking revocation of the Respondent’s U.S. Coast Guard license 

number 879580 and merchant mariner’s document number 394869310, the only 

available sanction for incompetence under 46 CFR 5.569. (Accepted and 

incorporated). 
43

RESPONDENT’S PROPOSED FINDINGS 

1. Shea is the holder of U.S. Coast Guard (“USCG”) license number 879580 and 

Merchant Mariner’s Document number (Redacted). (Accepted and incorporated). 

2. On December 18, 2003, Shea was working as Second Assistant Engineer aboard 

the SS EWA. (Tr. at 31, 51-52). (Accepted and incorporated). 

3. While on duty, Shea suffered the onset of a debilitating illness that caused him to 

abandon his post in the engine room. (Tr. at 32, 33, and 178). (Rejected). 

4. Prior to the incident aboard the M/V EWA, Shea received advice from a 

naturopathic physician that he could treat his illness through naturopathic therapy. 

(Tr. at 133-34, 153-56). (Accepted but not incorporated as irrelevant on the issue 

of competency). 

5. The initial results were encouraging. Consequently, Shea believed his illness was 

under control. (Tr. at 133-34, 153-56). (Accepted but not incorporated). 

6. Around 0630, Shea was seen crawling on his hands and knees near the vessel’s 

bridge. (Tr. at 32-33, and 178). (Accepted and incorporated). 

7. Later, it was discovered Shea had packed bags with survival equipment and was 

preparing to abandon ship because he believed the vessel was in danger. (Ex. 1, 3; 

Tr. at 71, 75, 76, and 178). (Accepted and incorporated). 

8. Because of his behavior, Shea was put under restraints and confined to his quarters 

for the remainder of the voyage. (Ex. 1 Tr. at 46, 70). (Accepted and 

incorporated). 
44

9. On December 22, 2003, after the EWA docked in Honolulu, Hawaii, Shea was 

taken to Queens Medical Center where he was examined by Barry S. Carlton, M.D. 

(Tr. at 91). (Accepted and incorporated). 

10. Dr. Carlton diagnosed Shea as having bi-polar disorder, and treated Shea through 

psychotherapy and medication. (Tr. at 94). (Accepted and incorporated but with 

the addition of the term “Manic.”) 

11. Bi-polar disorder is a chronic illness that requires long-term management. (Tr. at 

109. (Accepted and incorporated). 

12. Naturopathic medicines cannot treat bipolar disorder. (Tr. at 133-34, 153-56). 

(Accepted but not incorporated as irrelevant on the issue of competency). 

13. On December 22, 2003, the day he was admitted to Queen’s Medical Center, Shea 

voluntarily surrendered his merchant mariner’s documents and license to the 

USCG investigating officers. (Tr. at 101). (Accepted with the exception that 

Respondent actually voluntarily deposited his license and document in accordance 

with 46 CFR 5.201. A voluntary surrender under 46 CFR 5.203 is made in 

preference to appearing at a hearing. Unlike a voluntary deposit, a voluntary 

surrender permanently relinquishes all rights to the license, certificate or 

document). 

14. Dr. Carlton was Shea’s physician while he was inpatient in Queen’s Medical 

Center, and after his discharge on or around January 6, 2004, continued to see Shea 

on an outpatient basis. (Tr. at 91). (Accepted and incorporated). 
45

15. At the current time, Shea is taking Zyprexa, a medication approved by the FDA for 

treatments of bi-polar disorder and as a prophylaxis to prevent future episodes. (Tr. 

at 99). (Accepted and incorporated). 

16. Sedation is a side effect of Zyprexa. Shea, as an outpatient, initially reported some 

sedation at the 20 milligram dose, but at this current dosage of 15 milligrams, he 

has not reported sedation. (Tr. at 212). (Accepted and incorporated). 

17. Shea has been on Zyprexa long enough that the side effects should be predictable. 

Shea’s initial difficulty with sedation has not been a recent problem and he as 

managed the larger side effect of weight gain quite well. (Tr. at 139-40). 

(Accepted and incorporated). 

18. Dr. Carlton has not seen any clinical evidence of cognitive impairment or excessive 

sedation resulting from the medication. (Tr. at 141). (Accepted and incorporated). 

19. In Dr. Carlton’s medical opinion, the heat of the engine room should not be a 

problem if Shea hydrates properly. (Tr. at 142-43). (Accepted and incorporated). 

20. Although Zyprexa acts as a prophylaxis to prevent future episodes, Shea could 

suffer a relapse, even while taking his medication. (Tr. at 106-07). (Accepted and 

incorporated). 

21. However, provided proper medical medication management, Shea has sufficient 

insight to increase his medication as needed should there be breakthrough 

symptoms. (Tr. at 109). (Accepted only to the extent that it is Dr. Carlton’s 

opinion. To accept Dr. Carlton’s opinion as an ultimate fact is to conclude that 

Respondent possesses the ability to control any future breakdown symptoms). 
46

22. There is a medical officer on board the vessels trained to a level slightly higher 

than that of an emergency medical technician. (Tr. at 84). (Accepted only to the 

extent that it applies to the SS EWA and that the medical officer, who is not a 

trained physician, may distribute non-controlled medications. There is no 

evidence that there are medical officers on board other vessels on which 

Respondent might serve or that said medical officers actually have received 

training greater than emergency medical technicians). 

23. The medical officer could administer Shea’s medication and help monitor his 

condition. (Tr. at 86). (Accepted, to the extent that there is a process aboard the 

Matson vessels where the medical office or some person, maybe the master, could 

control (the medication) and ensure that it (the dosage) was followed, but not 

incorporated). 

24. If Shea remains asymptomatic for a period of five years, he could possibly 

discontinue medication. (Tr. at 105). (Accepted to the extent that Dr. Carlton 

would anticipate at least five years of asymptomatic condition before he would 

even consider recommending discontinuing the medication). 

25. Early treatment, good return to function, continued insight would help predict that 

Shea would have a good outcome. (Tr. at 108). (Accepted as Dr. Carlton’s 

opinion). 

26. Dr. Carlton has stated that given Shea’s course of illness you would expect a 

sustained remission. (Tr. at 135). (Accepted as Dr. Carlton’s opinion). 

27. On February 13, 2004, based on his examination and treatment of Shea, and after 

reviewing a job description of the Second Assistant Engineer’s position provided 
47

by Matson navigation, Shea’s employer, Dr. Carlton declared Shea “fit-for-duty.” 

(No reference provided but this evidence is found in I.O. Exhibit 5 and the 

transcript at 133). (Accepted as Dr. Carlton’s opinion). 

28. On June 3, 2004, the USCG met with Dr. Carlton and Patrick Shea, questioned 

them extensively, and returned Shea’s documents without restrictions. (Tr. at 13, 

158). (Accepted and incorporated). 

29. Since being declared fit for duty, Shea has taken his medications as ordered and 

has not suffered a relapse. Shea has returned to work as a ship’s engineer and has 

ably and competently performed his duties aboard the vessels to which he has 

been assigned. (Tr. at 161). (Accepted to the extent that Respondent testified that 

had has had no problems at al with his illness since he returned to work June 3, 

2003). 

30. At the October 6, 2004 hearing, Dr. Carlton reaffirmed his belief Shea is fit for 

duty and stated that to a reasonable degree of medical certainty, Shea is able to 

perform the job of ship’s engineer without difficulty. (Tr. at 133). (Accepted only 

as Dr. Carlton’s opinion). 

Conclusions of Law

1. Ordinarily, an allegation of incompetence must be based on sufficient evidence 

subsequent to any fit for duty declaration or it should be found not proved. Appeal 

Decision 2417 (YOUNG) (1985) citing Appeal Decision 2280 (ARNOLD) (1982). Since 

being placed under the care of Dr. Carlton and declared fit for duty, Shea has taken his 

medications as ordered, has not suffered a relapse, and has safely and competently 

performed his duties aboard the vessels to which he has been assigned. At the October 6, 
48

2004 hearing, Dr. Carlton confirmed that Shea is fit for duty. There is not sufficient 

evidence subsequent to either fit for duty declaration to find Shea incompetent. (Rejected 

as per discussion above. The sufficient evidence is that Respondent Bipolar disorder – 

manic is currently in remission and is therefore subject to breakdown symptoms). 

2. Although “[a] n Administrative Law Judge is not bound by the recommendations of the 

psychiatrist or even by the medical findings and opinion[,]” he or she should carefully 

consider the expert’s medical opinion. Appeal decision 2191 (BOYKIN) (citing Appeal

Decision 2021 (BURKE) (1975). Dr. Carlton is an expert in the field of psychiatry, and 

has repeatedly examined Shea and declared him competent. (Accepted to the extent that 

Dr. Carlton’s opinion has been given thoughtful consideration; however, as noted above, 

the Administrative Law Judge is not bound by medical findings and opinions. The 

ultimate finding as to fitness is his alone. Appeal Decision 2547 (PICCIOLO) (1992) 

citing Appeal Decisions 2191 (BOYKIN) (1980), 1720 (HOWELL) (1968) (aff’d 1 

NTSB 2165); 1466 (SMITH) (1964)). 

3. In Appeal Decision 2191 (BOYKIN) (1980), the seaman was diagnosed with acute 

paranoia. Shea suffers from bipolar disorder, one of the most treatable of psychic 

disorders and has demonstrated his ability to self-monitor his illness and competently 

handled the responsibilities of the ship’s engineers since his license and documents were 

returned. (Rejected. There is no evidence that bipolar disorder is the most treatable of 

psychic disorders. Dr. Carton has opined, “[I]t is difficult to judge the course of the 

illness. There are patients who remain in remission, that is, absence of symptoms for 

many years. And then there are also those who, despite medication, do have breakthrough 

symptoms. “(Tr. at 107). It is not a fact that Respondent will always remain in remission). 
49

4. Appeal Decision 2021 (BURKE) (1975) was modified by 2 NTSB 2784 (1976) and 

remanded to the Administrative Law Judge (“ALJ”) for a re-hearing. Appeal Decision 

2181 (BURKE) (1980) is the Commandant’s decision on the appeal filed after the ALJ’s 

decision on remand. (Accepted. On February 11, 1980 the remanded 2181 (BURKE)

Decision on Appeal was issued. That decision held that, 

“[T]he record contains evidence sufficient to establish that Appellant currently 

suffers from what is diagnosed as ‘paranoid schizophrenia, in remission.’ It is 

further established that Appellant has suffered what apparently were ‘psychotic 

breaks,’ severe enough to require hospitalization on two occasions and to require 

his relief from duty aboard a vessel on a third occasion. Lastly, the diagnosis of 

current remission is said to mean ‘that the psychotic state is inactive at the present 

time, but the psychotic episodes have a tendency to recur in this patient. 

[Appellant’s] risk of a future psychotic break cannot be stated in percentage form 

but it can be said to be greater than that of a person who has no history of mental 

illness.”). 

5. In Appeal Decision 2181 (BURKE) (1980) the psychiatrist’s opinion was that the seaman 

“was not fit for service at sea.” Unlike the seaman in Appeal Decision 2181, Shea has 

been declared fit for duty. Moreover, the seaman in Appeal Decision 2181 (BURKE)

(1980) was diagnosed with paranoid schizophrenia, a far more serious illness than Shea’s 

bipolar disorder. (Accepted to the extent that it was Appeal Decision 2021 (BURKE)

(1975) that references the psychiatrist letter declaring Respondent Burke unfit. The 

assertion that paranoid schizophrenia is a far more serious illness than Shea’s bipolar 

disorder is rejected because Dr. Carlton did not discuss the differences between the two 

illnesses in his testimony. The possibilities that Respondent can have another breakdown 

are greater than those of the general population. Therefore, I am not prepared to find as a 

fact that the conduct displayed by Respondent is less a threat to maritime safety than 

conduct that might obtain from a schizophrenic breakdown). 
50

6. In Appeal Decision 1502 (WILLIAMS) (1965), the Commandant ordered “[t]he 

suspension of all licenses and other documents issued to the Appellant by the United 

States Coast Guard shall remain in effect until such time as Appellant produces a 

certificate issued by the United States Public Health Service stating that Appellant’s past 

medical history has been studied and that he is mentally fit to (sic) sea duty, but the final 

determination as to whether or not Appellant is considered to be cured and fit for sea duty 

shall rest with the Commandant.” Unlike the mariner in Appeal Decision 1502 

(WILLIAMS) (1965), Shea has been declared fit for duty and there has been no evidence 

of incompetence since Dr. Carlton declared him fit for duty on February 13, 2004. 

(Rejected because it would require the trier of fact to give controlling weight to the 

opinion of Respondent’s treating psychiatrist on the ultimate issue – incompetence when 

the issue of competence is for the administrative law judge to make). 

7. In Appeal Decision 2417 (YOUNG) (1985), the Commandant found the charges were not 

supported by the evidence because there was no diagnosis of the Appellant’s mental 

condition at the time of the hearing, and remanded the case to the ALJ to order a 

psychiatric evaluation of the mariner. Shea was evaluated by Dr. Carlton on September 

30, 2004, six days before the hearing, and at the October 6, 2004 hearing, he was 

declared competent. (Rejected. To accept Dr. Carlton’s opinion that Respondent is 

competent is contrary to Commandant policy as stated in the Appeal Decisions 1502 

WILLIAMS (1965) and 2547 (PICCIOLO) (1992) line of cases that a mariner’s fitness is 

determined by the Commandant as delegated to the administrative law judge). 

8. The ultimate issue is whether the mariner can perform the functions expected of him. 

Appeal Decision 2547 (PICCIOLO) (1992). Shea has proven that he can. (Rejected. The 
51

ultimate issue is whether Respondent suffers from an impairment of sufficiently disabling 

character to support a finding that he is not competent to perform safely duties aboard a 

merchant vessel of the United States. If the answer to this question is “yes,’ then 

revocation of all licenses and documents is the only proper sanction. (Appeal Decision 

2118 (BURKE) (1980)). 

9. The USCG has not met its burden of proof as required under 33 CFR 20.702. Therefore, 

Patrick Beau Shea is competent to hold his Merchant Mariner’s Credentials and continue 

his career as a shop’s engineer. (Rejected. The burden is not to rebut or to disprove a 

treating psychiatrist’s opinion that a mariner is fit for duty, as fitness is the final decision 

of the Commandant. The burden of proof is to establish that Respondent suffers from an 

impairment of sufficiently disabling character to support a finding that he is not 

competent to perform safely duties aboard a merchant vessel of the United States. If the 

answer to this question is “yes,’ then revocation of all licenses and documents is the only 

proper sanction. (Appeal Decision 2181 (BURKE) (1980)). 

10. 46 CFR 5.27 (2004) states that ‘[m]isconduct is human behavior which violates some 

formal, duly established rule. Such rules are found in, among other places, statues, 

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 an 

act which is required.” (Accepted and incorporated). 

11. Although 46 CFR 5.27 (2004) does not require willful intent to violate a duly established 

rule, or reckless disregard of or even knowledge of a rule, courts have interpreted similar 

statutes to require willful or negligent acts or omissions. See e.g. Rechany v. Rowland, 

235 F. Supp. 79, 84 (S.D.N.Y. 1964) (defining misconduct under 46 CFR 137.05-
52

20(a)(1), the statute replaced by 46 CFR 5.27, as a willful or negligent act or omission, an 

act or omission beyond a mere error during judgment). (Rejected for the reasons 

discussed above. The standard for finding a seaman not competent to hold a merchant 

mariners license is not the same as finding a criminal defendant not legally responsible 

for the crime. The evidence shows that Respondent intended to leave his watch. He 

acknowledged as much when he told the Chief Officer that it was “stuffy down there” or 

words to that effect). 

12. “[P]roof of the ‘mental incompetence’ charge...[d]oes not automatically necessitate 

dismissal of the misconduct charge,” however, an ALJ may dismiss a misconduct charge 

because of the particular circumstances of a case. Appeal Decision 1677 (CANJAR) 

(1968). An ALJ should consider the events surrounding the misconduct charge and make 

a decision based on whether a preponderance of the evidence shows the respondent’s 

incompetence caused an isolated incident of misconduct for which he was not legally 

responsible. In this case, Shea sought treatment to correct his illness and unfortunately 

chose the wrong therapeutic remedies. Although Shea left his workstation as alleged, his 

actions were not willful or negligent, or even an error in judgment. Shea did not 

knowingly neglect his duty to the vessel, its Master or his fellow crewmembers. He 

should not be penalized for an incorrect assessment of the nature of his illness and for the 

resulting actions that eventually led to his receiving the care and help he needed. The 

misconduct charge is dismissed. (Rejected for the reasons discussed above). 
53

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Decision and Order was sent to the following parties 

and limited participants by Federal Express: 

USCG Sector Honolulu 

Attn: LT Michael R. Pierno, USCG 

433 Ala Moana Blvd. 

Honolulu, HI 27813-4999 

(808) 522-8266 

John O’Kane, Esquire 

Frame, Formby and O’Hare 

Four Waterfront Plaza, Suite 4-575 

500 Ala Moana Blvd. 

Honolulu, HI 82813 

(808) 545-3043 

ALJ Docketing Center 

40 S. Gay Street, Room 412 

Baltimore, MD 2122-4022 

(410) 962-7434 

Done and dated January 25, 2005 

New York, NY 

 ____________________________________ 

 Shaniqua G. Jenkins 

 Paralegal Specialist, Assistant to the 

 Administrative Law Judge