UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

RICHARD ALBERT CHESBROUGH 

Respondent

_________________________________

Docket Number 2015-0139

Enforcement Activity No. 5066536

REVISED DECISION AND ORDER

Issued: July 26, 2016

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

LCDR Benjamin M. Robinson

Sector Columbia River

For the Coast Guard

Richard A. Chesbrough, Pro se

For the Respondent
TABLE OF CONTENTS

I. SUMMARY OF THE PROCEEDINGS....................................................... 3

II. FINDINGS OF FACT............................................................................ 4

A. General Facts.............................................................................. 4

B. Facts as to Allegation 1- Failure to report a grounding.............................. 4

C. Facts as to Allegation 2- Making a false statement in a casualty investigation 

and Allegation 3 - Attempting to induce a witness, to testify falsely in 

connection with a marine casualty......................................................6

E. Facts as to Allegation 6 - Conviction of an offense that would prevent the 

issuance or renewal of a license, certificate of registry, or merchant mariner's 

document...................................................................................8

III. DISCUSSION......................................................................................8

A. Principles of Law......................................................................... 8

B. Jurisdiction.................................................................................11

1. Allegation One.................................................................. 12

2. Allegations Two and Three....................................................13

3. Allegation Six....................................................................14

C. Misconduct.................................................................................15

1. Failure to report a grounding...................................................15

2. Making a false statement in a casualty investigation....................... 22

3. Attempting to induce a witness, to testify falsely in connection with a 

marine casualty..................................................................... 28

D. Conviction of an offense that would prevent the issuance or renewal of a 

license, certificate of registry, or merchant mariner's document................... 31

1. Respondent’s Conviction Constitutes a “Criminal Conviction” Under 

46 C.F.R. § 10.211...................................................................33

2. Convictions Within the Scope of 46 C.F.R. § 10.211 Would Prevent 

the Issuance or Renewal of an MMC Under 46 USC § 7703(2)............... 35

IV. SANCTION........................................................................................ 41

A. Factors Considered in Determining an Appropriate Order..........................41

B. The Parties’ Arguments Regarding Sanction..........................................43

C. Analysis as to Sanction..................................................................44

D. Conclusions as to Sanction.............................................................. 49

ORDER..................................................................................................50

APPENDIX A: APPEALS........................................................................... 52

APPENDIX B: LIST OF WITNESSES AND EXHIBITS....................................... 55
SUMMARY OF THE PROCEEDINGS

The United States Coast Guard (Coast Guard) has brought this administrative 

action under 46 U.S.C. § 7701 et seq. and its underlying regulations codified at 46 C.F.R. 

Part 5, seeking to revoke Richard Albert Chesbrough’s (Respondent) Merchant Mariner’s 

Credential (MMC or Credential). On May 12, 2015, the Coast Guard filed a Complaint 

against Respondent containing three allegations of misconduct, two allegations of a 

violation of law or regulation, and one allegation of a conviction that would preclude the 

issuance of an MMC. These charges relate to incidents which allegedly occurred on four 

separate occasions. Respondent filed a timely Answer in which he denied certain 

jurisdictional and factual allegations and requested to be heard on the proposed order.

Following several prehearing conferences and the completion of discovery, I held 

a formal hearing on November 3rd and 4th of 2015 at the United States Bankruptcy Court 

in Portland, Oregon. At the beginning of the hearing, the Coast Guard sought to withdraw 

Allegations 4 and 5, both of which alleged a violation of law or regulation. Respondent 

did not object. I permitted the Coast Guard to withdraw these allegations with prejudice, 

as permitted by regulation. 33 C.F.R. § 20.311. The parties offered evidence and 

argument pertaining to the remaining four allegations.

Both parties filed post-hearing briefs containing proposed findings of fact, 

conclusions of law, and argument in support of their positions. I have carefully reviewed 

the entire record in this case, including witness testimony, exhibits, applicable statutes, 

regulations, and case law, and find Allegation one NOT PROVED and Allegations two, 

three and six PROVED.1

 

1 The original Decision and Order in this matter referred to allegation six in the Complaint (Conviction 

which would preclude the issuance of a Merchant Mariner Credential under 46 USC § 7703(2)) as 
I. FINDINGS OF FACT

A. General Facts

1. At all times relevant to the allegations in this matter, Respondent held a Coast 

Guard-issued MMC. (Tr. Vol. 1 p. 26).

2. The M/V WILLAMETTE QUEEN is owned by Respondent’s wife, Barbara 

Chesbrough, under a corporate structure. (Tr. Vol. II pp. 327, 336).

3. Mrs. Chesbrough also owns Sternwheeler Excursions LLC, which operates the 

business side of the enterprise, including hiring and paying employees. (Tr. Vol. 

II p. 336).

4. Sternwheeler Excursions LLC employs Respondent as Master of the 

WILLAMETTE QUEEN. (Tr. Vol. II p. 336).

5. The WILLAMETTE QUEEN is a fiberglass-hulled sternwheeler constructed in 

1990. (Tr. Vol. I p. 22).

6. The WILLAMETTE QUEEN’S length is 87 feet overall; its hull and engine 

comprise 65 feet of that distance while the sternwheel and its protective girder 

make up the remainder. (Tr. Vol. I pp. 22, 30).

7. The WILLAMETTE QUEEN has a three-foot draft. (Tr. Vol. I p. 25).

8. The WILLAMETTE QUEEN is currently certified to carry 101 passengers. (Tr. 

Vol. I p. 22). 

9. The vessel is used for lunch and dinner cruises and private events on the 

Willamette River and Willamette Slough. (Tr. Vol. I pp. 22-23).

10. The cruising route of the vessel is limited by the McLane’s Island gravel bar to 

the north and the Traglio gravel bar to the south. (Tr. Vol. I pp. 23-24).

11. No charts or other navigational aids exist for the Willamette River between 

Newberg and Eugene. (Tr. Vol. I pp. 25-26).

12. Respondent uses a depth sounder and, at nighttime, a spotlight to assist him in 

navigating the vessel. (Tr. Vol. I p. 26).

B. Facts as to Allegation 1- Failure to report a grounding. 

13. Dwayne Harris was the owner and operator of Spirit Expeditions. (Tr. Vol. I pp. 

40, 65).

14. Mr. Harris was also employed as a deckhand on the WILLAMETTE QUEEN for 

several months, starting in approximately March 2012.2(Tr. Vol. I pp. 38-39).

15. On November 16, 2012, Spirit Expeditions chartered the WILLAMETTE 

QUEEN for a ghost tour. (Tr. Vol. I pp. 27-28, 40).

 

allegation four. The renumbering was because the agency withdrew Allegations four and five at the 

beginning of the hearing. However, the Complaint was not amended. As a result, it appears the renumbering has created some confusion for readers. Accordingly, I have issued this revised Decision and 

Order in which all references to allegations reflect the numbering found in the Complaint. 

The Decision and Order remains substantively the same as originally issued. However, all further 

references to the Decision and Order in this matter should be to the revised version.

2 At the hearing, Mr. Harris was unable to remember exactly when he ceased working on the 

WILLAMETTE QUEEN. He believed it was in November 2012. However, the other evidence in the record 

indicates he was still working there until at least February 2013. (EX CG-27; Tr. Vol. I pp. 78, 147-49).
16. Gregg Thompson was a passenger on board the WILLAMETTE QUEEN during 

the ghost tour on November 16, 2012. (Tr. Vol. I p. 89).

17. The first hour of the tour took place while the vessel was tied up at the pier. (Tr. 

Vol. I pp. 26, 65).

18. During this segment, the passengers boarded, had refreshments, and listened to 

Mr. Harris’s presentation about ghost hunting, which included slide projections 

and equipment demonstrations. (Tr. Vol. I pp. 26-27).

19. For the second segment of the tour, Respondent took the vessel on a short trip up 

and down the Willamette Slough. (Tr. Vol. I pp. 27, 42).

20. The vessel stopped in the area where a Civil War skirmish supposedly occurred, 

to allow passengers to use ghost-hunting equipment. (Tr. Vol. I p. 27).

21. At some point in the voyage, Respondent turned off all the vessel’s exterior lights 

and used only his spotlight so the passengers could use night-vision goggles and 

other equipment. (Tr. Vol. I pp. 27, 67).

22. There are many wooden pilings along the banks of the Willamette Slough, 

particularly near the area of the Civil War battlefield. (Tr. Vol. I pp. 27-28).

23. The pilings were originally used to moor riverboats and log rafts in the 1800s and 

early 1900s. (Tr. Vol. I pp. 27-28).

24. A group of pilings is sometimes referred to as a dolphin. (Tr. Vol. I p. 104).

25. There is approximately eight to twelve feet between the pilings and the shore. (Tr. 

Vol. I pp. 33-34, 196).

26. The grade of the bank in the area of the pilings is very steep. (Tr. Vol. I p. 33).

27. Respondent navigated the vessel near the pilings so he could stay as close as 

possible to Minto Island.3(Tr. Vol. I pp. 27-28).

28. When Respondent attempted to turn the vessel around for the return trip, the stern 

struck something. (Tr. Vol. I p. 28).

29. Mr. Harris and Mr. Thompson were standing near the stern at the time. (Tr. Vol. I 

pp. 43-44, 90).

30. Both Mr. Harris and Mr. Thompson felt a sharp but slow stopping motion. (Tr.

Vol. I pp. 44-45, 92).

31. Mr. Harris and Mr. Thompson both looked at the paddlewheels and saw churning 

mud. (Tr. Vol. I pp. 44-45, 93, 102).

32. Mr. Harris believed the vessel had hit ground. (Tr. Vol. I p. 45).

33. The nearest piling Mr. Harris could see was 25 to 30 yards south of the vessel. 

(Tr. Vol. I pp. 45-46).

34. Mr. Harris went to the pilot house and asked Respondent if the vessel had 

grounded. (Tr. Vol. I p. 46).

35. Respondent did not necessarily agree that the vessel grounded, but acknowledged 

something had happened. (Tr. Vol. I p. 46).

36. Mr. Harris then asked if they should report it, and Respondent replied that he’d 

take care of it. (Tr. Vol. I p. 46).

37. Respondent did not report a grounding. (Tr. Vol. I p. 119).

38. The vessel was dry-docked in May 2015 and there was no damage to the bottom 

of the boat. (Tr. Vol. I p. 36).

 

3 Also referred to in the record as Minto-Brown’s Island.
39. Damage was found on a cowling, which was removed and rebuilt. (Tr. Vol. I pp. 

35-36, Vol. II p. 357).

C. Facts as to Allegation 2- Making a false statement in a casualty investigation 

and Allegation 3 - Attempting to induce a witness, to testify falsely in 

connection with a marine casualty.

40. Chief Warrant Officer (CWO) Travis Nolen was, at the relevant times, a Marine 

Inspector in the U.S. Coast Guard. (Tr. Vol. I p. 185).

41. CWO Nolen conducted an inspection of the WILLAMETTE QUEEN on January 

29, 2013.4(EX CG-26 pp. 29-33).

42. While CWO Nolen was there, Mr. Harris mentioned a grounding that occurred in 

November 2012. (Tr. Vol. I pp. 130-31, 186).

43. CWO John Nay was, at the relevant times, a U.S. Coast Guard Marine 

Investigator assigned to Marine Safety Unit (MSU) Portland. (Tr. Vol. I p. 115).

44. On February 4th, 2013, CWO Nolen approached CWO Nay to tell him about that 

conversation with Mr. Harris. (Tr. Vol. I p. 116).

45. Several days later, CWO Nolen informed CWO Nay that he also had another 

witness, Mr. Gregg Thompson. (Tr. Vol. I p. 116).

46. CWO Nay spoke to and received statements from Harris and Thompson. (Tr. Vol. 

I pp. 117-118).

47. CWO Nay conducted a review of Coast Guard databases to see if any report of a 

casualty involving the WILLAMETTE QUEEN was filed for a two week period 

before and after November 15, 2012, and did not find one. (Tr. Vol. I p. 119).

48. CWO Nay contacted Mrs. Chesbrough, stating that the Coast Guard had received 

a confidential report of a grounding. (Tr. Vol. I. p. 118).

49. CWO Nay requested Mr. and Mrs. Chesbrough to come to MSU Portland so a 

formal interview could be conducted. (Tr. Vol. I. p. 118).

50. The Chesbroughs came to the Coast Guard offices at about noon on March 21, 

2013. (Tr. Vol. I p. 118).

51. Prior to their arrival, Mr. Hank Sullivan, a marine inspector at MSU Portland, 

notified CWO Nay that Mr. Harris had just called. (Tr. Vol. I p. 120).

52. Mr. Harris had told Mr. Sullivan that Respondent tried to contact him. (Tr. Vol. I 

p. 120).

53. CWO Nay then called Mr. Harris. (Tr. Vol. I p. 120).

54. Mr. Harris stated that Respondent called him to ask for a passenger manifest; said 

he was going to tell the Coast Guard the vessel struck a piling; and asked Mr. 

Harris to back him up. (Tr. Vol. I p. 120).

55. CWO Nay, CWO Nolen, and another investigating officer named CWO Michael 

Wireman conducted a forty-five minute recorded interview with Mr. and Mrs. 

Chesbrough. (Tr. Vol. I pp. 235-91).

56. Respondent described the ghost-hunting cruise and the route that he had taken 

that evening. (Tr. Vol. I pp. 240-44).

 

4 During the hearing, Mr. Nolen could not accurately remember the date, and believed it was in October 

2012. (Tr. Vol. I p. 187). I note that Mr. Nolen was aboard the vessel many times and an inspection did take 

place on October 22, 2012. (See EX CG-16). However, that was prior to the incident at issue here, and the 

other evidence in the record establishes that he spoke to Mr. Harris during the January 2013 inspection.
57. Respondent said that at the time of the incident, it was “pitch black, can’t see a 

damn thing.” (Tr. Vol. I p. 248).

58. Respondent told investigators the boat was standing still and he attempted to 

execute a turn using his bow thruster. (Tr. Vol. I p. 248).

59. Respondent showed the investigators photos depicting the pilings in the area of 

the turn. (Tr. Vol. I pp. 126, 244).

60. Respondent specifically identified the dolphin he had hit. (Tr. Vol. I p. 248).

61. Throughout the interview, Respondent maintained that the water was seven to 

eight feet deep in this area. (Tr. Vol. I p. 274).

62. After the interview, CWO Nay received a call from Mr. Harris, who said he just 

received a voicemail from Mr. Chesbrough asking him to call back and to 

corroborate his story about the piling. (Tr. Vol. I pp. 121-22).

63. Lieutenant Commander (LCDR) Anthony Hillenbrand was, at the relevant times, 

the senior investigating officer at MSU Portland. (Tr. Vol. I p. 122).

64. After the interview, CWO Nay told LCDR Hillenbrand that he believed Mr. and 

Mr. Chesbrough had lied throughout the interview and provided false information, 

which was a potential criminal violation of 18 U.S.C. § 1001. (Tr. Vol. I p. 122).

65. LCDR Hillenbrand briefed the commanding officer of Sector Columbia River, 

Captain LeBlanc, and they decided to turn the investigation over to the criminal 

investigators at the Coast Guard Investigative Service. (Tr. Vol. I p. 122).

66. The marine investigators suspended their investigation. (Tr. Vol. I p. 127).

67. On or about March 21, 2013, Mr. Harris received a voicemail from Respondent 

asking him to call back as soon as he could. (Tr. Vol. I p. 55; EX CG-14).

68. Respondent’s message said he was just leaving his Coast Guard interview and that 

he wanted to let Mr. Harris know what he had said “just so that we don't trip each 

other up here.” (Tr. Vol. I p. 55; EX CG-14).

69. Respondent also left a second voicemail message for Mr. Harris. (Tr. Vol. I pp. 

56-57; EX CG-13).

70. Respondent asked Mr. Harris to call back prior to getting in touch with the Coast 

Guard investigator so he could “tell you what -- what came -- what we did 

yesterday so that our stories somewhat match.” (Tr. Vol. I pp. 56-57; EX CG-13).

71. Mr. Harris consented to allow CGIS special agents to listen to and record a 

telephone call between him and Respondent. (Tr. Vol. I pp. 57, 147).

72. On Friday, March 22, 2013 at approximately 9:09 a.m., CGIS Special Agents 

Austin and Lukowiak initiated that call. (EX CG-12; Tr. Vol. I p. 154).

73. Respondent answered and identified himself. (Tr. Vol. I pp. 154-76; EX CG-12).

74. Respondent and Mr. Harris discussed their conflicting versions of events. (Tr. 

Vol. I pp. 154-76; EX CG-12).

75. Respondent told Mr. Harris that “because it was so dark, I couldn't see anything 

from the pilot house, for sure.” (Tr. Vol. I p. 171; EX CG-12).

76. Respondent later said, “let’s keep our stories consistent on that. And, you know, I 

sure the hell don't need another grounding incident against my record, you know.” 

(Tr. Vol. I p. 171; EX CG-12).

77. Mr. Harris asked Respondent what exactly Respondent wanted him to say when 

he spoke to the Coast Guard. (Tr. Vol. I p. 172; EX CG-12).
78. Respondent replied, “Well, basically that --I mean you can either say, ‘I didn't see 

anything,’ which is what I think you just said, you know. You know, you felt 

something, and you don't know what it was, but you definitely felt something.” 

(Tr. Vol. I p. 172; EX CG-12).

79. CGIS agents also interviewed Respondent. (Tr. Vol. I p. 152).

80. Respondent initially stated that the vessel had struck a dolphin. (Tr. Vol. I p. 152).

81. He later changed his story to say he was actually unsure if it was a piling and it 

could have been something else. (Tr. Vol. I p. 152).

82. Respondent also specifically denied that he ever called Mr. Harris or suggested 

they get their stories straight. (Tr. Vol. I pp. 153, 156).

E. Facts as to Allegation 6 - Conviction of an offense that would prevent the 

issuance or renewal of a license, certificate of registry, or merchant mariner's 

document. 

83. In February 2013, U.S. Environmental Protection Agency (EPA) Special Agents 

received information that Respondent was discharging wastewater into the 

Willamette River. (EX CG-27; Tr. Vol. I p. 206).

84. As a result, EPA agents conducted an investigation. (EX CG-27).

85. The agents observed discharges from a pipe at the stern of the WILLAMETTE 

QUEEN into the Willamette River. (EX CG-27; Tr. Vol. I p. 207).

86. The EPA agents recommended bringing charges against Respondent, and the 

Oregon Department of Justice did so. (EX CG-27; Tr. Vol. I p. 124).

87. A violation of O.R.S. 468.943 is a Class A Misdemeanor. (EX CG-28).

88. On May 7, 2015, Respondent pled guilty to two counts of violating O.R.S. 

468.943, Unlawful Water Pollution in the Second Degree, Misdemeanor Class A 

in the Marion County Circuit Court, Marion County, Oregon. (EX CG-08).

89. Respondent was placed on bench probation for 18 months; was required to 

perform 80 hours of community service; and paid a criminal fine of $2,000.00 for 

each count. (EX CG-08).

90. James Crouse is chief of the Safety and Suitability Evaluation Branch at the 

National Maritime Center. (Tr. Vol. II p. 302).

91. Mr. Crouse advised the Coast Guard Investigating Office for this proceeding that 

a conviction for two counts of improper handling of marine pollutants or 

hazardous materials would prevent the issuance of an MMC. (Tr. Vol. II p. 303).

92. At the hearing, Mr. Crouse clarified that the conviction would only prevent the 

issuance of an officer endorsement and not the underlying MMC. (Tr. Vol. II p. 

316).

II. DISCUSSION

A. Principles of Law

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges 
(ALJs) have the authority to suspend or revoke Coast Guard-issued credentials or 

endorsements. See 46 C.F.R. § 5.19(b). These proceedings are conducted under the 

Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. 46 U.S.C. § 7702(a).

Section 7(c) of the APA places the burden of proof on the proponent of a rule or 

order, unless otherwise provided by statute. The fact-finder must consider the “whole 

record or those parts thereof cited by a party and supported by and in accordance with the 

reliable, probative, and substantial evidence” before assessing a sanction. 5 U.S.C. § 

556(d). The standard of proof in administrative proceedings is the “preponderance of the 

evidence” standard, meaning a party must prove that a “fact’s existence is more likely 

than not.” Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich Collieries v. Dir., Office 

of Workers’ Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993).

Evidentiary rules under the APA are less strict than in jury trials, and only 

irrelevant, immaterial, or unduly repetitious evidence need be excluded. See 5 U.S.C. § 

556(d); Gallagher v. Nat’l. Transp. Safety Bd., 953 F.2d 1214, 1214 (10th Cir. 1992); 

Sorenson v. Nat’l. Transp. Safety Bd., 684 F.2d 683, 688 (10th Cir. 1982). Moreover, 

evidence “need not be authenticated with the precision demanded by the Federal Rules of 

Evidence” in order to be admissible in an administrative proceeding. Gallagher at 1218; 

Appeal Decision 2664 (SHEA) (2007).

The Coast Guard bears the burden of proof in a suspension or revocation 

proceeding. 33 C.F.R. § 20.702(a). As these proceedings are conducted under the APA, 

the Coast Guard must prove its case by a preponderance of the evidence. Dir., Office of 

Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994). In this case, the 

Coast Guard alleges that Respondent committed misconduct by failing to report a 
grounding, making false statements during a casualty investigation, and attempting to 

induce a witness to testify falsely. The Coast Guard also alleges that Respondent was 

convicted of a crime that would prevent the issuance of MMC. The Coast Guard thus has 

the burden of proving each of these allegations by reliable, credible, and probative 

evidence showing that Respondent more likely than not committed the violation.

When evaluating the evidence in the record, an ALJ must make determinations as 

to its credibility and reliability. The ALJ “is vested with broad discretion in making 

determinations regarding the credibility of witnesses and in resolving inconsistencies in 

the evidence.” Appeal Decision 2519 (JEPSON) (1991). This is because, as the presiding 

official, the ALJ “can fully observe the response, character and demeanor of the 

witnesses in issue.” Id. “Traditional factors in assessing credibility include such things as 

(1) the demeanor of the witness, (2) the inherent plausibility of the witness's testimony, 

(3) the consistency of the testimony of the witness with prior statements of the witness, 

(4) the internal consistency of the witness's statements, (5) the consistency of the 

testimony with other evidence, (6) the accuracy of the witness's testimony, and (7) the 

interest of the witness in the outcome of the proceeding. Other factors may also apply but 

a credibility assessment is commonly made based on the totality of the circumstances 

after considering any relevant fact that may impact the witnesses [sic] credibility.” St. 

Claire Marine Salvage, Inc. v. Bulgarelli, No. 13-10316, 2014 WL 3827213, at *6 (E.D. 

Mich. Aug. 4, 2014), aff'd (July 22, 2015).

Here, the Coast Guard has raised questions about Respondent’s credibility, while 

Respondent has challenged the credibility of other witnesses who testified at the hearing. 

I note that the salient question in determining a witness’s credibility is whether the 
testimony in the record is well-supported and believable; “[t]he presence of evidence 

which conflicts with the testimony of a witness is not, in itself, enough to conclusively 

show a lack of credibility of that witness when there is substantial evidence that supports 

his account.” Appeal Decision 2017 (TROCHE) (1975).

One piece of evidence in the record is the audio recording and transcript of a 

phone call Mr. Harris made to Respondent. Coast Guard investigators listened to the call 

and recorded it with Mr. Harris’s consent. At the hearing, Respondent asked that this 

evidence be stricken from the record because it was illegally obtained. However, this 

evidence had been pre-admitted at a conference call prior to the hearing and Respondent 

had not objected at that time, thus I found he had waived the issue. In addition, I note 

here that the evidence was indeed lawfully obtained. Under Oregon law, “[n]o violation 

of a defendant’s rights occurs if a telephone recording is made with the consent of one of 

the parties to the conversation. ORS 165.540(1)(a); State v. Lissy, 304 Or. 455, 747 P.2d 

345 (1987) (decided this date).” State v. Dimeo, 304 Or. 469, 473 (1987). 

B. Jurisdiction

Jurisdiction in misconduct cases is established only if the alleged misconduct 

occurred while the mariner was acting under the authority of his MMC. 46 U.S.C. § 

7703; see also Appeal Decision 2615 (DALE) (2000). A mariner acts under the authority 

of a Coast Guard-issued credential or endorsement when the holding of such credential or 

endorsement is required either by law or regulation or by an employer as a condition of 

employment. 46 C.F.R. § 5.57(a). A mariner engaged in official matters regarding the 

credential or endorsement may also act under its authority in situations including, but not 

limited to, applying for renewal, taking examinations for raises of grade, requesting 
duplicate or replacement credentials, or appearing at a suspension or revocation hearing. 

46 C.F.R. § 5.57(b).

Respondent denied jurisdictional element #5 of the Complaint and admitted to the 

remaining jurisdictional elements. Element #5 related to the allegations that were 

withdrawn at the start of the hearing, thus he has admitted to all jurisdictional elements 

relating to the remaining allegations. However, the burden of establishing jurisdiction 

nevertheless remains. See 33 C.F.R. § 20.310(c); Appeal Decision 2656 (JORDAN)

(holding that even though the respondent admitted the charged offense, an appeal must be 

granted where jurisdiction is not established).

1. Allegation One

The WILLAMETTE QUEEN is an inspected vessel in the service of Small 

Passenger Vessel. Its Certificate of Inspection (COI) requires the vessel’s crew to include 

a Master. No vessel may be operated unless the complement required by the COI is in its 

service and on board. 46 C.F.R. § 15.515 (2012). Under 46 U.S.C. § 8902, the operators 

of small passenger vessels must be licensed; similarly, under 46 C.F.R. § 15.805(a)(4) 

(2012), every small passenger vessel must be under the command of an individual 

holding a valid MMC with endorsement as master. Vessels subject to inspection under 46 

U.S.C. § 3301 must be under the direction and control of an individual with an 

appropriate license or officer endorsement while on a voyage. 46 C.F.R. § 15.515. If a 

law or regulation requires a person serving in a position to hold a license, certificate of 

registry, merchant mariner’s document, transportation worker identification credential, 

and/or merchant mariner’s credential, an individual cannot serve in that position unless 

he holds all the credentials required. 46 C.F.R. § 15.401 (2012).
In this case, the evidence clearly establishes that Respondent was the holder of an 

appropriate MMC and was acting as master of the WILLAMETTE QUEEN during its 

excursion on November 16, 2012, as required by law and regulation. The evidence also 

establishes that he is the only master of the WILLAMETTE QUEEN and serves in this 

position as a condition of employment. A casualty occurred during the November 16, 

2012 voyage; the question of whether it was a reportable casualty under 46 C.F.R. § 4.05-

1 is fact-specific and, even if Respondent did not have a duty to report it, he nevertheless 

had a duty as a license holder to cooperate with any ensuing investigation. 46 U.S.C. § 

3315. Jurisdiction attached by his serving as Master of the WILLAMETTE QUEEN on 

November 16, 2012. 

2. Allegations Two and Three

As to allegations two and three, which involve making a false statement and 

attempting to induce a witness to falsely testify, the Coast Guard alleges that Respondent 

acted under the authority of his MMC by engaging in official matters via his participation 

in a Marine Casualty Investigation. Participating in a marine casualty investigation is not 

an enumerated matter under 46 C.F.R. § 5.57(b). However, “46 U.S.C. § 6301 authorizes 

the immediate investigation of marine casualties to determine, among other things, the 

causes of casualties, whether an act of misconduct or negligence occurred, whether 

violations of law occurred, and whether there is a need for new laws or regulations, or 

amendment or appeal of existing laws or regulations, ‘to prevent the recurrence of the 

casualty.’” Credle v. Smith & Smith, Inc., 42 F. Supp. 3d 596, 598 (D. N.J. 2013).

In light of the Coast Guard’s statutory duties to promote safety at sea and to issue 

licenses and other documents indicating a seaman’s qualifications, the Commandant 
concluded that “Congress intended the jurisdictional limitation of ‘acting under authority’ 

only for the purpose of precluding action in cases of negligence, misconduct and 

incompetence which are totally unrelated to a seaman’s profession.” Appeal Decision 

1400 (HUGHES) (1963). Thus, Congress did not intend to limit suspension and 

revocation proceedings only to instances where an MMC is required by federal law or 

regulation. Id.

When the Coast Guard charges misconduct while acting under authority, “the

particular act must be related to the particular document or license and to the person’s 

employment thereunder.” Appeal Decision 2025 (ARMSTRONG) (1975). “The character 

of the particular employment at hand, and its relation to the scope of the license must also 

be examined to determine if jurisdiction lies.” Appeal Decision 2620 (COX) (2001). 

Respondent serves as the Master of the WILLAMETTE QUEEN and is responsible for 

direction and control of the vessel when underway and whenever passengers are aboard. 

He is also responsible for maintaining the vessel and operating in compliance with the 

COI. While not specifically pled, the evidence also establishes that Respondent operated 

as Master as a condition of employment. The acts alleged in allegations two and three 

clearly relate to his function as a credentialed mariner and his employment as Master of 

the WILLAMETTE QUEEN. Therefore, I find Respondent was acting under the 

authority of his MMC all times relevant to these allegations, and find jurisdiction 

established pursuant to 46 C.F.R. § 5.57(a) and (b).

3. Allegation Six

Allegation six does not involve misconduct, but rather a conviction for a violation 

of law that would prevent the issuance or renewal of an MMC. Thus, the “acting under 
the authority” analysis is unnecessary, as being a holder of an MMC is a sufficient nexus 

to establish jurisdiction for this allegation. The record clearly establishes that, at all 

relevant times, Respondent was the holder of a United States Coast Guard Merchant 

Mariner’s Credential with an officer’s endorsement. Jurisdiction is established as to this 

allegation.

C. Misconduct

The Coast Guard has charged Respondent with three counts of misconduct. The 

regulations define misconduct as “human behavior which violates some formal, duly 

established rule . . . found in, among other places, statutes, 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 that which is required.” 46 

C.F.R. § 5.27. 

1. Failure to report a grounding

The basis of this allegation is that Respondent unintentionally grounded the 

WILLAMETTE QUEEN in the Willamette Slough near Minto Island on November 16, 

2012 and failed to notify the Coast Guard. A grounding is a reportable marine casulty, 

which must be timely reported to the Coast Guard in accordance with 46 C.F.R. § 4.05-1. 

I must determine whether the evidence shows it is more likely than not that the 

WILLAMETTE QUEEN grounded on that date, giving rise to a duty to report. If the 

evidence supports a grounding, I must then determine whether Respondent failed to 

report the incident.

United States law requires licensed individuals to report “at the earliest 

opportunity, any marine casualty producing serious injury” to a vessel subject to 
inspection. 46 U.S.C. § 3315. The Coast Guard has promulgated regulations in this area 

at 46 C.F.R. § 4.05-1. These rules require state, in pertinent part: 

a) Immediately after the addressing of resultant safety 

concerns, the owner, agent, master, operator, or person in 

charge, shall notify the nearest Sector Office, Marine 

Inspection Office or Coast Guard Group Office whenever a 

vessel is involved in a marine casualty consisting in—

(1) An unintended grounding, or an unintended strike of 

(allision with) a bridge . . .

The remaining paragraphs in 46 C.F.R. § 4.05-1 deal with intended groundings or strikes 

of bridges that create navigational or environmental hazards or compromise the safety of 

a vessel; loss or reduction of systems related to vessel maneuverability of the vessel; 

incidents such as fire, flooding, or damage to safety systems; loss of life; injury requiring 

medical treatment beyond first aid; property damage in excess of $25,000, including 

labor and material costs; and incidents involving significant harm to the environment. 

This case does not appear to implicate any of these provisions.

The Coast Guard argues that the preponderance of the evidence supports a finding 

that the vessel grounded, stating that both Mr. Thompson and Mr. Harris were on the 

main deck when the incident occurred and could see silt churning up; Mr. Thompson and 

other witnesses also described what the vessel felt like during the incident. (CG PostHearing Brief at 8). CWO Nay also determined, during his investigation, that the vessel 

grounded. (Id.) The Coast Guard discounted the thruster cowl damage, arguing that the 

damage was below the waterline and that any contact with the cowling would have very 

likely been the result of a grounding. (Id. at 10).

Respondent argues that the vessel could not have grounded because it has a 

shallow draft and was in 12 to 14 feet of water. (Resp. Post-Hearing Brief at 3). He 
further asserts that numerous pilings line the bank of Minto Island in the Willamette 

Slough. (Id.)Although he initially indicated a specific piling he believed the vessel had 

hit, he now asserts that it may have struck any of those pilings. Respondent also questions 

the witnesses’ ability to differentiate between an allision and a grounding. (Id. at 4-5). He 

posits that any mud they observed being churned up in the water at the vessel’s stern was 

generated by the thrusters. Respondent says the results of the vessel’s dry-dock 

inspection support his position, since there was no damage on the bottom to indicate a 

grounding but the thruster cowling was damaged. (Id.)

In addition, Respondent has raised particular concerns as to Mr. Harris’s general 

credibility. (Id. at 5-6). These are based on Mr. Harris’s alleged criminal record,

numerous unfavorable reviews of the company he owned from publicly-available 

websites such as TripAdvisor, and personal interactions between Mr. Harris and 

Respondent or other members of the community. The record is clear that Respondent and 

Mr. Harris had, at one time, a cordial employer-employee relationship. It is not clear why 

the relationship soured, but after observing Mr. Harris’s demeanor and hearing his 

testimony, I do not find him to be so biased that it affects his credibility. Any legal 

trouble he may have experienced does not adversely affect his ability to give reliable 

testimony in this case, particularly since his testimony was largely corroborated by other 

witnesses. Insofar as Mr. Harris’s testimony constituted an eyewitness account of the

events of November 16, 2016, I find it credible. I also find the eyewitness testimony of 

Mr. Thompson, which is substantially similar to Mr. Harris’s, to be credible.

At the hearing, Respondent also questioned the source of the report to the Coast 

Guard that a potential grounding had occurred. The Coast Guard stated the report had 
come from Mr. Harris, but Mr. Harris testified that he thought it was from a passenger 

who had been on board that night. (Tr. Vol. I p. 49). Although the record does not clearly 

establish the source, the evidence shows Mr. Harris likely brought it up unintentionally 

during Mr. Nolen’s January 2013 visit to the WILLAMETTE QUEEN. (Tr. Vol. I pp. 49, 

75, 130-31, 186). Mr. Nolen then elicited more information during their conversation and 

initiated the investigation. (Tr. Vol. I pp. 130-31, 186). However, I do not find this issue 

particularly relevant to the question of what actually occurred on the date in question.

It is undisputed that the WILLAMETTE QUEEN struck something during its 

voyage on the evening of November 16, 2012. What is unclear is whether the vessel 

struck the river bottom, a piling, or another unknown object. All witnesses, including 

Respondent, agree they felt something. The incident lasted a few seconds, but the 

WILLAMETTE QUEEN did not strand and continued its voyage after the strike 

occurred.

A “grounding is generally defined as when a vessel contacts the bottom of the sea. 

See Webster's Third New International Dictionary (1976) (‘to place on or cause to touch 

the bottom’); The Marine Encyclopaedic Dictionary, Eric Sullivan, (5th Ed. 1996) (‘when 

a vessel contacts the bottom of the sea or the ground’).” Appeal Decision 2586 (GREEN)

(1997) aff’d sub nom. Commandant v. Scott R. Green, NTSB Order EM-184 (1999). 

Additionally, the USCG Marine Safety Manual (MSM) defines “grounding” as 

the drifting, driving, or running aground of a ship on a shore or a strand. “Accidental 

grounding takes place where a ship is driven on shore by the winds and the waves.” The 

MSM lists in great detail the information IOs should attempt to collect following a 

grounding. This includes, but is not limited to, information about the voyage plan; the 
vessel’s last accurate position and how it was obtained; whether there were opportunities 

to fix position by various means; data about any charts that were used; data about the 

weather, tides, currents, and notices or warnings to mariners; whether magnetic cargo, 

electrical disturbances, or other events could have affected the compass; evidence of 

radar use, depth soundings, or other such data; the draught of the ship before grounding 

and how it was determined; information about equipments and systems aboard the ship 

and whether they functioned properly; the position of the grounding; and resulting 

damage. MSM E.11. Presumably because the investigation was turned over to CGIS, 

most of the above information is not in the record and is therefore not available for me to 

consider.

These waters are uncharted, but the photographs in the record show numerous 

pilings bordering Minto Island and the testimony corroborates this. Some pilings are tall, 

while others are just above the water’s surface. (CG EX-21 though 25; R EX C-1 through 

3). Mr. Harris testified that the pilings are “definitely not all above water.” (Tr. Vol. I p. 

84). Mr. Nolen also testified that some pilings were above water, some were just at the 

waterline, and some were just below the surface. (Tr. Vol. I p. 193). Respondent 

submitted evidence from NOAA that the river height was above nine feet on November 

16, 2012. The WILLAMETTE QUEEN has a three-foot draft. Mr. Nolen testified that the 

water level when the drone photos were taken was within a foot of the level on the date of 

the alleged grounding. (Tr. Vol. I p. 196).

Neither party has presented convincing evidence about what exactly the vessel 

struck. In Appeal Decision 2302 (FRAPPIER) (1983), the Commandant considered a 

similar issue, stating “the shudder and the damage were both equally consistent with 
either grounding or striking of a submerged object. There is also evidence that floating 

debris was common in the area. These facts alone would not support the finding that the 

vessel had grounded.” However, in FRAPPIER, the appellant himself admitted the vessel 

had likely touched bottom and, after the shudder, he drifted the boat until the fathometer 

showed greater water depth. Thus, the totality of the evidence in that case supported a 

finding that the vessel had grounded.

Here, the evidence is inconclusive. At the hearing, Respondent identified a 

particular dolphin consisting of three pilings as the one the vessel struck. (EX CG-24; Tr. 

Vol. I p. 32). He had identified the same large dolphin during his interview with Coast 

Guard investigators. However, Mr. Harris and Mr. Thompson both testified that this large 

dolphin was some distance away from the stern at the time of the strike. On the other 

hand, there is no evidence the vessel was positioned such that, in nine-foot waters with a 

three-foot draft, it could have struck bottom.

Mr. Harris and Mr. Thompson believed the vessel grounded because they felt a 

jolt and observed muddy water, but this evidence is not determinative of a grounding. 

Witness accounts of what the jolt felt like are mixed, with Respondent saying it was sharp 

and sudden while Mr. Harris said it was a jerking motion leading to a slow stop. (Tr. Vol. 

I p. 85). Mr. Thompson described it as akin to when “you’re coming up to a stop sign and 

you hit the brakes, it’s a little hard, just kind of that nudge stop . . . It wasn’t a big jostle.” 

(Tr. Vol. I p. 92). Mrs. Chesbrough testified that it did not feel like other groundings she 

had experienced; it was a sideways motion and caused coffee she was pouring to slosh. 

(Tr. Vol. II p. 333). Other witnesses interviewed during the CGIS investigation described 

the sensation as shaking a little bit or wiggling. (Tr. Vol. I. pp. 150-51). These 
observations could either indicate a strike of a partially- or fully-submerged object or a 

grounding.

Likewise, I cannot conclude that the vessel grounded from the damage observed 

when the vessel was dry-docked. Indeed, I have no way of knowing whether that damage 

was sustained on November 26, 2012 or on some other date. 

While the totality of the evidence does not establish whether the casualty was a 

grounding or an allision, it does lead to the conclusion that the vessel did not allide with 

the dolphin Respondent claimed many times to have hit. The strike occurred at night and 

Respondent was in the wheelhouse. Respondent even stated, “[i]t is impossible to know 

exactly which piling/dolphin was struck or even whether it was above or below the 

surface as there are many of each along this bank.” (Resp. Post-Hearing Brief at 4). 

Given Mr. Thompson’s and Mr. Harris’s position at the stern of the vessel, their 

testimony that the dolphin was actually several yards away is more credible than 

Respondent’s. Nevertheless, based on the depth of the water and the number of pilings in 

the area, I find it probable that the WILLAMETTE QUEEN allided with one of the low 

pilings in the area.

Accordingly, based on the evidence in the record, I find Respondent negligently 

allided with a fixed object that he knew or should have known was located off Minto 

Island. The Coast Guard has not charged Respondent with negligence in connection with 

the November 16, 2012 incident, only with the failure to report a grounding.5 As the 

“agent, master, operator, or person in charge,” Respondent was required to report an 

unintended grounding or an unintended strike of a bridge in accordance with 46 C.F.R. § 
4.05-1.6 Here, there is no credible evidence that the vessel struck bottom, and it clearly 

did not allide with a bridge. The reporting requirement in 46 U.S.C. § 3315 is a separate 

duty, but is limited to marine casualties producing serious injury to inspected vessels. The 

record does not show that the WILLAMETTE QUEEN suffered such injury. By his own 

admission, Respondent could not see the pilings at the time of this incident and thus he 

did not know with certainty what had happened. The prudent course for a master of an 

inspected passenger vessel would have been to report the casualty. However, on the facts 

of this case and given the specific language of 46 C.F.R. § 4.05-1(a)(1), I cannot find that 

a reportable casualty occurred. I therefore find Allegation One NOT PROVED. 

2. Making a false statement in a casualty investigation

The Coast Guard has also alleged that Respondent committed misconduct by 

making a false statement in a casualty investigation. According to the Coast Guard, on 

March 21, 2013 Respondent was interviewed by U.S. Coast Guard Investigating Officers 

who were investigating the alleged November 16, 2012 grounding of the WILLAMETTE 

QUEEN. The interview was conducted under the authority of 46 U.S.C. Chapter 63. 

During the interview, the Coast Guard alleges, Respondent willfully and knowingly made 

false, fictitous, and fraudulent statements to Investigating Officers by stating the 

WILLAMETTE QUEEN struck pilings and did not run aground. The making of false, 

fictitous, and fraudulent statements to an Investigating Officer is a violation of 18 USC 

§1001(a)(2) and consitutes an act of misconduct as described by 46 USC §7703(1)(B) 

and defined in 46 CFR §5.27. The Coast Guard argues that Respondent was acting under 

 

5 Respondent made admissions in the investigation that he unintentionally struck a piling. “No person may 

testify regarding admissions made by the respondent during an investigation under 46 C.F.R. Part 4, except 

to impeach the credibility of evidence offered by the respondent.” 33 C.F.R. § 20.1311.
the authority of his MMC by engaging in official matters regarding that license when he 

was interviewed by the Investigating Officers.

In support of its position, the Coast Guard points to voicemail messages 

Respondent left for Mr. Harris. In these recordings, Respondent said he did not need 

another grounding on his record and “made assurances that the investigators would not be 

verifying their statements such that their false statements would be caught.” CG PostHearing Brief at 10. He also told Mr. Harris that “the investigator would be ‘satisfied’ 

and assured [him] the investigators were ‘not going to interview all the passengers or 

anything like that,’” and said Mr. Harris’s statement would be the end of it. Id. at 10-11.

Respondent adamantly denies that he made any false statement. He says he 

simply reported, truthfully, that his vessel had only experienced a minor striking of a 

piling/dolphin while he was turning it, and that the vessel never grounded. (Resp. PostHearing Brief at 5).

To prove misconduct, the Coast Guard must show that Respondent behaved in a 

way that violated a “formal, duly established rule,” committed a forbidden act, or failed 

to do something that was required. See 46 C.F.R. § 5.27. The Complaint expressly 

alleged that Respondent violated 18 U.S.C. § 1001 by making of false, fictitous, and 

fraudulent statements in a casualty investigation. This statute reads: 

Statements or entries generally

(a) Except as otherwise provided in this section, whoever, 

in any matter within the jurisdiction of the executive, 

legislative, or judicial branch of the Government of the 

United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or 

device a material fact;

 

6 As the owner of the vessel, Respondent’s wife, Barbara Chesbrough, was also required to report these 

types of incidents. See 46 C.F.R. § 4.05-1.
(2) makes any materially false, fictitious, or fraudulent 

statement or representation; or

(3) makes or uses any false writing or document knowing 

the same to contain any materially false, fictitious, or 

fraudulent statement or entry;

18 U.S.C.A. § 1001.

The Commandant has held that a “plain-language reading of the definition of 

‘misconduct’ shows that it includes behaviors that violate statutes.” Appeal Decision 

2658 (ELSIK) (2006). Title 18 U.S.C. § 1001 “is an appropriate source of a ‘formal, duly 

established rule’” that may form the basis for a misconduct allegation. Appeal Decision 

2610 (BENNETT) (1999); see also Appeal Decisions 2570 (HARRIS). The fact that the 

Coast Guard could have sought criminal penalties for the charged offenses does not 

preclude a suspension or revocation action for those same offenses. See ELSIK.

During the marine casualty investigation, Respondent told the investigators he 

was “just laying right up alongside of one of those [pilings], just standing still,” when Mr. 

Harris asked him to reposition the vessel. Respondent continued, “keep in mind it’s pitch 

black, can’t see a damn thing, so when I pulled away I used my bow thruster, and --and 

like I said, the boat was absolutely still, and when I pulled the bow thruster out, the stern 

of the boat swung in and -- and just bumped that piling right there, that dolphin...” (Tr. 

Vol. I p. 248). After the strike occurred, Respondent asked Mr. Harris if any of the 

passengers noticed and if he needed to explain it. According to Respondent, Mr. Harris 

told him they did not, since “nobody's -- you know, nobody's upset about it or anything.” 

(Tr. Vol. I p. 254).

In addition to making these statements, Respondent brought photographs of the 

area and pointed out a particular large dolphin as the one he had hit. At the hearing, even 
after Respondent had admitted that he could have bumped other pilings instead, he 

continued to identify the large dolphin as the one the vessel bumped. (EX CG- 24; Tr. 

Vol. I p. 32). However, he also told Harris in the recorded phone call, “I couldn't see 

anything from the pilot house, for sure.” (Tr. Vol. I p. 170).

After Respondent’s interview with Coast Guard investigators, he recorded 

voicemail messages to Mr. Harris saying, “because it was so dark, I couldn’t see anything 

from the pilot house, for sure.” (Tr. Vol. I at 170). He also said, “And that's honestly what 

I -- what I believe really happened that night. I – I know the two, but it -- it definitely felt 

like the piling, because I couldn't see anything, neither, from the pilot house, but I -- but I 

know I was right up alongside of that piling on the -- on the starboard side.” (Tr. Vol. I 

pp. at 175-76). Respondent’s own words are inconsistent with the statement he had just 

given to the Coast Guard. He also was recorded saying “So, you know, let's keep our 

stories consistent on that. And, you know, I sure the hell don't need another grounding 

incident against my record, you know.” (Tr. Vol. I p. 171).

Testimony regarding admissions made by a respondent during an investigation 

under 46 CFR part 4, such as the statements Respondent made to the Investigating 

Officers here, is usually prohibited in suspension or revocation proceedings. The 

exception is when it is used to impeach the credibility of evidence offered by the 

respondent. 33 C.F.R. § 20.1311. This policy is intended to “promote the cooperation of 

those who are best able to contribute to the investigation.” In this fashion, as a public 

policy, the Coast Guard has somewhat subordinated the proving of charges at a 

suspension or revocation proceeding to the more important goal of promoting marine 

safety. Appeal Decision 2174 (TINGLEY) (1980). 
However, this case involves statements that the Coast Guard alleges are not 

credible and do not assist in promoting marine safety. Since testimony regarding 

admissions made by a respondent during an investigation under 46 C.F.R. Part 4 may be 

used to impeach the credibility of evidence offered by the respondent, it is logical and 

consistent with public policy that such testimony may be used to prove that a mariner 

gave a false statement. 

The Commandant has held that if a respondent “had reason to know that the 

representation he made ... was false, then he may be considered to have constructive 

knowledge of the falsity of the statement made.” See Appeal Decision 809 (MARQUES)

(1955). Specific intent to make a fraudulent statement is not required; rather, the focus is 

on whether the person making a statement knows it is likely to be false. Id. “Whether 

Respondent had reason to know, or should have known, that the statement was false, is a 

determination driven by the specific facts of the case.” Appeal Decision 2663 (LAW) 

(2007) (internal citations omitted).

In this case, Respondent gave Coast Guard investigators a self-serving 

explanation for the incident that occurred on November 16, 2012. He continually

identified a specific group of pilings as the object the vessel struck, provided photos of 

the area to the Coast Guard, and marked a particular piling on a hearing exhibit consisting 

of photo of the area as the one he had hit. (EX CG-24). However, the evidence firmly 

establishes that he could not see the pilings in question, both because it was dark and 

because his vantage point would not have given him a clear view. Therefore, Respondent 

had reason to know or should have known that the statement he gave was false. Even if 

he had a good-faith belief he hit that specific piling, he could not have been certain about 
it and should have disclosed that to the Coast Guard. Instead, he positively identified the 

piling and gave unqualified statements about what happened that night.

Other statements Respondent made to Coast Guard investigators appear to be 

untrue. For example, Respondent told Mr. Austin that he never called Harris or suggested 

they get their stories straight. (Tr. Vol. I p. 153). Mr. Austin said Respondent specifically 

denied having done so and was lying about it. (Tr. Vol. I p. 156). Since the voicemails 

and recorded phone call are a matter of record, it is clear that such statements were false. 

Respondent also gave testimony at the hearing that was untrue, such as when he said not 

a single person on board approached him about the jolt. (Tr. Vol. I p. 37). However, other 

testimony shows that Mr. Harris did speak to him about it in the pilot house immediately 

after it occurred. (Tr. Vol. I pp. 46, 254, Vol. II p. 349). Although the discrepancies in his 

hearing testimony are not a charged offense, they nevertheless reflect poorly on his 

credibility and willingness to give an accurate account of the incident.

The evidence shows that Respondent has given statements to Coast Guard 

investigators, as well as testimony under oath at the hearing, that he knew or should have 

known were false. I find his statement to Mr. Harris that he could not see what he hit but 

merely assumed it was a piling more credible than his statements to Coast Guard 

investigators that he definitely hit a specific dolphin. He also falsely represented to Coast 

Guard investigators that he had not attempted to contact Mr. Harris. I find that 

Respondent was well aware that the statements he gave to the Coast Guard investigator 

were not entirely true, and I do not find Respondent’s hearing testimony to be fully 

credible. Accordingly Allegation Two is found PROVED.
3. Attempting to induce a witness, to testify falsely in connection with a marine

casualty

The Coast Guard’s third allegation is that Respondent attempted to induce Mr. 

Harris to falsely report that the WILLAMETTE QUEEN had struck a dolphin piling, not 

grounded, on November 16, 2012. Attempting to coerce a witness, or to induce a witness 

to testify falsely in connection with a marine casualty, is a violation of 46 U.S.C. §6306 

and constitutes an act of misconduct.

The Coast Guard argues that Respondent’s intent to coerce Mr. Harris’s testimony 

is evident in his two voicemail messages and the recorded phone call with Mr. Harris. 

Respondent was particularly concerned that Mr. Harris would tell the Coast Guard that 

the boat struck gravel or something similar, since that would be a reportable marine 

casualty. (Tr. Vol. 1 p. 175). The Coast Guard believes Respondent made efforts to 

ensure that Mr. Harris gave statements consistent with his own, or at least not contrary to 

Respondent’s interests, even if Mr. Harris did not concur with Respondent.

Respondent argues that he was within his rights to discuss the incident with his 

employee, particularly since he believed Mr. Harris would be a defense witness. 

Respondent argues he never asked Mr. Harris to lie. He also says the recordings show he 

told Mr. Harris what he truly believed had happened. (Resp. Post-Hearing Brief at 6).

As noted above, misconduct includes behaviors that violate statutes. Here, the 

statute in question is 46 U.S.C. § 6306, which requires in pertintent part that a “person 

attempting to coerce a witness, or to induce a witness, to testify falsely in connection with 

a marine casualty, or to induce a witness to leave the jurisdiction of the United States, 

shall be fined $5,000, imprisoned for one year, or both.” In the complaint, the Coast 
Guard alleged that Respondent attempted to “induce” Mr. Harris to falsely report. 

However, the statute does not define either “coerce” or “induce.”

“In the absence of legislative guidance, a principle canon of statutory construction 

is that words in a statute are to be interpreted as having their ordinary, contemporary or 

common meaning. Perrin v. United States, 444 U.S. 37 (1979), Sutherland's Statutory 

Construction, 47.28 (1973).” Appeal Decision 2375 (CLEMENT) (1985). The meaning 

of “induce” was interpreted by United States v. Anyanwu, 598 F. App'x 618, 621 (11th 

Cir. 2015), to mean “to influence or persuade. So induced would mean influenced or 

persuaded.” In United States v. McQueen, 670 F.3d 1168, 1170 (11th Cir. 2012), the 

court examined numerous English-language dictionaries and held that “[t]o ‘induce’ 

means ‘[t]o lead (a person), by persuasion or some influence or motive that acts upon the 

will, to ... some action, condition, belief, etc.’ or ‘[t]o bring about, bring on, produce, 

cause, give rise to.’”

The record includes recordings of two voicemail messages from Respondent to 

Mr. Harris and one phone call between the two men that was observed by Coast Guard 

personnel. In the first voicemail, Respondent said:

Hey, Dawane, Richard here. Give us a call as soon as you 

can. The -- just wanted to let you know, we just left the Coast 

Guard up here in Portland and they are going to be calling 

you, and I just wanted to let you know what -- what we told 

them about the course we took that evening and stops we 

made, and -- just so that we don't trip each other up here.

And, you know, like I told them, we -- we were --

(unintelligible) right there in the -- in the slough, and I was 

using my bow thruster to turn from one side, the -- the MintoBrown Island side over to the – to the other side, and -- when 

we bumped that – that dolphin right there. So at any rate, I 

just wanted to go over that stuff with you just so that we're 

both in sync. So give me a call as soon as you can. Thanks, 

Marine, bye-bye.
(Tr. Vol. I p. 55; EX CG-14) (emphasis added).

In the second voicemail, Respondent said, “Hey, Dawane, it's Richard again. 

Good morning, Friday morning here. Just wanted to touch base with you. Give me a call 

before you call that Coast Guard investigator back, you know, Okay, Dawane, thanks, 

bye-bye.” (Tr. Vol. I p. 56-57; EX CG-13).

During the recorded phone call, Mr. Harris asked Respondent what he was 

supposed to say when he spoke to the Coast Guard investigators. Respondent replied, 

“Well, basically that --I mean you can either say, ‘I didn't see anything,’ which is what I 

think you just said, you know. You know, you felt something, and you don't know what it 

was, but you definitely felt something.” (Tr. Vol. I p. 172; EX CG-12). Respondent then 

told Mr. Harris to “just, you know, play dumb.” (Tr. Vol. I p. 173; EX CG-12). Later, 

Respondent said, “certainly don't tell them that you think we struck, you know, gravel or 

anything. That -- that's the -- that's the big thing, and you -- and -- and if I'd have thought 

I'd have done that, I certainly would have reported it, not that it's any big deal, but it --

that is a reportable marine casualty, they call it. . . . But bumping a – bumping a piling is 

not.” (Tr. Vol. I p. 175; EX CG-12).

The evidence clearly shows that Respondent wanted to speak to Mr. Harris in 

advance of Mr. Harris’s interview with Coast Guard investigators. While Respondent 

never outright stated that he wanted Mr. Harris to lie to the investigators, he did 

specifically suggest that Mr. Harris say he hadn’t seen anything and did not know what 

caused the jolt he had felt. He also specifically told Mr. Harris not to tell the Coast Guard 

that he suspected a grounding.
At the hearing, Mr. Harris stated, “It seemed to me at that point that the captain 

had a different view of what happened that night. And it also seemed like he wanted me 

to kind of follow his lead on -- on what had happened.” (Tr. Vol. I p. 52). Later, when 

asked whether he felt Respondent wanted him to lie about the incident, Mr. Harris said, “I 

-- I feel that I was trying to be pushed to say something that I didn’t believe was true, yes. 

‘Lie’ is a -- if you want to use the word ‘lie,’ yeah I feel like that was the case from the 

phone calls and the voice mails that I received.” (Tr. Vol. I p. 59).

In reviewing the statements Respondent made to Mr. Harris, I find that they were 

intended to induce Mr. Harris to testify in a manner inconsistent with his own beliefs as 

to what happened that night. It is clear from Mr. Harris’s testimony that he felt pressured 

by Respondent to present a certain version of events he felt was inaccurate. Respondent’s 

actions do not rise to the level of coercion, but certainly demonstrate his attempts to 

influence or persuade Mr. Harris to provide only the information Respondent wanted the 

Coast Guard to have. I therefore find this allegation PROVED.

D. Conviction of an offense that would prevent the issuance or renewal of a 

license, certificate of registry, or merchant mariner's document

The final allegation concerns whether Respondent has been convicted of an 

offense that would prevent the issuance or renewal of a Merchant Mariner Credential, as 

described in 46 USC § 7703(2). There is no dispute that, on May 7, 2015, the Marion 

County Circuit Court convicted Respondent of two counts of violating Oregon Revised 

Statute 468.943, Unlawful Water Pollution in the Second Degree, a Misdemeanor Class 

A. That statute reads as follows:

468.943. Unlawful water pollution, second degree

(1) A person commits the offense of unlawful water 

pollution in the second degree if the person with criminal 

negligence violates ORS chapter 468B or any rule, 
standard, license, permit or order adopted or issued under 

ORS chapter 468B.

(2) Subject to ORS 153.022, unlawful water pollution in 

the second degree is a Class A misdemeanor. 

Notwithstanding ORS 161.635, the maximum fine for a 

violation is $25,000.

Or. Rev. Stat. Ann. § 468.943 (West)

ORS 468B.025 prohibits any person, with certain exceptions, from causing pollution of 

any state waters; placing waste (or causing waste to be placed) in a locations where it is 

likely to enter the waters of the state by any means; or discharging any wastes into state 

waters if the discharge causes the water quality to fall below the standards set by the 

Environmental Quality Commission.

The Coast Guard argues that Respondent’s pollution conviction would prevent the 

issuance of an MMC, even if aggravating and mitigating factors were taken into 

consideration in a reconsideration appeal. (Tr. Vol. 2 pp. 9, 12). The Coast Guard’s 

expert witness, James Crouse, made this determination based on the state court judgment 

documenting the conviction. (Tr. Vol. 2 pp. 14, 22). Mr. Crouse opined that “[i]f 

additional factors were considered, they would demonstrate that Respondent’s criminal 

conduct included acts more egregious than the conduct generally described in the 

judgment. There was significant evidence that Respondent discharged sewage into the 

water, including evidence that his sewage tank was not discharged ashore for a period of 

one year.” (CG Post-Hearing Brief at 12).

Respondent does not deny the conviction, but maintains that he chose to plead 

guilty to the charges for financial reasons and not because he actually committed the acts. 

He stated that the discharges were dishwater, not sewage, and offered evidence that 

minor discharges of dishwater from an overflow pipe were environmentally safe and not 
pollutants. He also represented that he has taken precautions to prevent a repeat overflow 

from occurring. (Resp. Post-Hearing Brief at 6-7).

The issues presented here are whether (1) a violation of Oregon Revised Statute 

468.943, Unlawful Water Pollution in the Second Degree, a Misdemeanor Class A, 

constitues a “criminal conviction” as contemplated by 46 C.F.R. § 10.211 and its 

accompanying Table, and (2) such convictions are of a nature that that would prevent the 

issuance or renewal of a license, certificate of registry, or merchant mariner’s document

as described in 46 USC § 7703(2).

1. Respondent’s Conviction Constitutes a “Criminal Conviction” Under 46 

C.F.R. § 10.211

Title 46 C.F.R. § 10.211, entitled “Criminal Records Review,” is used to evaluate 

whether applicants for an MMC are safe and suitable to hold the credential and any 

endorsements thereto. If an applicant fails the criminal record review set out in 46 C.F.R. 

§ 10.211, the Coast Guard will not issue a new MMC, reissue an MMC with a new 

expiration date, or issue a new officer endorsement. 46 C.F.R. § 10.209(e)(1). The Coast 

Guard may decline to renew an MMC “[w]hen a criminal record review leads the Coast 

Guard to determine that an applicant is not a safe and suitable person or cannot be 

entrusted with the duties and responsibilities of the MMC or endorsement applied for . . . 

” 46 C.F.R. § 10.211(d). A person is considered “safe and suitable” for an MMC when a 

review of his or her character and prior record, including by not limited to any criminal 

activity, does not indicate that the person would be “a threat to the safety of life or 

property, detrimental to good discipline, or adverse to the interests of the United States.” 

46 C.F.R. § 10.107(b); see also Cota v. United States, 2013 WL 6234574, at *5 (N.D. 

Cal. Dec. 2, 2013), aff'd, 2015 WL 9584400 (9th Cir. Dec. 31, 2015).
Table 1 of 46 C.F.R. § 10.211(g) is entitled “Guidelines for Evaluating Applicants 

for MMCs Who Have Criminal Convictions.” It lists major categories of criminal 

activity, along with the minimum and maximum assessment periods for each. One of the 

listed categories is “criminal violations of environmental laws involving improper 

handling of pollutants or hazardous materials.” Id. The minimum assessment period for 

such offenses is one year. 

An assessment period commences when an applicant is no longer incarcerated, 

and may include supervised or unsupervised probation or parole. If a person with a 

criminal conviction chooses to apply before the minimum assessment period has elapsed, 

the applicant must provide evidence of suitability for service in the merchant marine. 46 

C.F.R. § 10.211(i). The Coast Guard will consider the evidence submitted with the 

application and may issue the MMC and/or endorsement in less than the listed minimum 

assessment period if satisfied that the applicant is suitable to hold the MMC and/or 

endorsement for which he or she has applied. Id.

The word “conviction” encompasses any situation where a person is found guilty 

of a felony, misdemeanor, or offense described in section 205 of the National Driver 

Register Act of 1982, as amended (49 U.S.C. 30304), either by judgment or plea, in a 

federal, state, territorial, foreign, or military court. 46 C.F.R. § 10.107. The regulations 

specifically state that the Coast Guard considers it a conviction if a person pleaded guilty 

or no contest to a charge, was granted deferred adjudication, or was “required by the 

court to attend classes, make contributions of time or money, receive treatment, submit to 

any manner of probation or supervision, or forgo appeal of a trial court's conviction.” Id.
Even if a conviction is later expunged, the Coast Guard will still consider it a conviction 

unless there is satisfactory evidence that the original conviction was in error. Id.

Respondent does not dispute that he was convicted of these charges pursuant to a 

plea arrangement. In a proceeding under Part 20, a judgment of conviction is conclusive 

in a suspension and revocation proceeding if it alleges an offense that would prevent the 

issuance or renewal of an MMC. 33 C.F.R. § 20.1307. While the Part 20 rules do not 

define “conviction,” the Commandant has held that 33 C.F.R. § 20.1307 and 46 C.F.R. § 

10.107 “substantially mirror each other, with minor exceptions. The regulatory history set 

forth above strongly suggests they should be read consistently.” Appeal Decision 2699 

(MAXWELL) (2012). 

Table 1 to 46 C.F.R. § 10.211(g) specifically includes criminal violations of 

environmental laws involving improper handling of pollutants or hazardous materials. 

After carefully considering the language of Oregon Revised Statute 468.943, Unlawful 

Water Pollution in the Second Degree, I conclude that Respondent’s conviction qualifies 

as a listed violation with a minimum assessment period of one year.

2. Convictions Within the Scope of 46 C.F.R. § 10.211 Would Prevent the 

Issuance or Renewal of an MMC Under 46 USC § 7703(2).

One basis for suspension or revocation is if the holder “is convicted of an offense 

that would prevent the issuance or renewal of a license, certificate of registry, or 

merchant mariner's document.” 46 U.S.C. § 7703(2). Although 46 U.S.C. § 7703(2) has 

been the law since 1990, the Coast Guard has not yet issued any implementing 

regulations. The Coast Guard Marine Safety Manual (MSM) Vol. V does contain some 

relevant policy provisions; in particular, section A.2.b. states:
46 USC 7703(2) authorizes S&R action if the holder of a 

MMC was convicted of an offense that would prevent the 

issuance or renewal of the MMC. The Commandant 

considers convictions for offenses detailed in 46 CFR 5.59 

and 5.61 to be convictions that would preclude the issuance 

or renewal of MMCs. The Commandant also considers a 

conviction for an offense listed in tables 46 CFR 10.201(h) 

or 46 CFR12.02-04(c), to be a conviction that would 

prevent the issuance or renewal of a MMC. See section B.9 

for guidance on appropriate sanctions.

For offenses similar to those contained in 46 C.F.R. §§ 5.59 and 5.61, or if the offense is 

listed in the tables of 46 C.F.R. Subchapter B7and the minimum assessment period is 

more than one year, the appropriate sanction is revocation. However, “[w]hen the 

minimum assessment period in the tables of 46 CFR Subchapter B is 1 year, IOs may 

propose a sanction of a reasonable number of months based on the overall conviction 

record of the mariner.” 

Title 46 C.F.R. § 20.211, which falls under 46 C.F.R. Subchapter B, implements 

three separate statutory requirements: 46 U.S.C. § 7101(h) (the Secretary may review the 

criminal record of an individual who applies for a license or certificate of registry under 

this section); 46 U.S.C. § 7109 (the Secretary may review the criminal record of each 

holder of a license or certificate of registry issued under this part who applies for renewal 

of that license or certificate of registry.); and 46 U.S.C. § 7302(d) (the Secretary may 

review the criminal record of an individual who applies for a merchant mariner's 

document under this section). 

All of these requirements were enacted as part of the Oil Pollution Act of 1990 

(OPA), PL 101–380, August 18, 1990, 104 Stat 484. In particular, they implicate sections 

 

7

I note that the specific tables referenced in the MSM (46 C.F.R. Parts 10 and 12) have been replaced by 

Table 1 to 10.211(g), Guidelines for Evaluating Applicants for MMCs Who Have Criminal Convictions, 

which was discussed above. See 46 C.F.R. § 10.211.
4101, 4102, and 4103 of the OPA. 8

Sections 4101 and 4102 dealt primarily with the need 

to discover alcohol-related convictions. As to a general criminal record review, the 

Conference Report stated, “[t]he Coast Guard is currently checking Federal Bureau of 

Investigation records. This provision codifies existing procedure.” H.R. CONF. REP. 

101-653, 129, 1990 U.S.C.C.A.N. 779, 807.

As to the provisions regarding 46 U.S.C. § 7703(2), the conference report stated:

Subsection 303(b) of the Senate amendment permits the 

Coast Guard to suspend or revoke a license or document if

it is shown after an opportunity for hearing that the holder 

was convicted of a serious criminal offense that would 

reflect adversely on the offender's character and fitness to 

serve consistent with the interest of safety at sea; ...; or 

fails to meet the standards for issuance of the license or 

document.

Section 4103(b) of the House bill has similar provisions.

Section 4103(b) of the Conference substitute combines 

provisions of both bills. It expands the existing bases in law 

for suspending or revoking a license, certificate, or 

document by adding two new grounds: (1) the individual is 

convicted of an offense that would prevent the issuance of 

the license, certificate, or document; or (2) the individual is 

convicted of an offense described in the National Driver 

Register Act (such as driving under the influence of alcohol 

or dangerous drugs, reckless driving, or leaving the scene 

of an accident), within the three-year period immediately 

before the suspension or revocation

H.R. CONF. REP. 101-653, 130-31, 1990 U.S.C.C.A.N. 779, 809.

The rules in 46 C.F.R. Subchapter B specifically contemplate new MMC 

applications, renewals, and requests for upgrade; there is no discussion about the effect 

on existing credentials. However, based on the clear language of the rules and the Coast 

Guard MSM policy provisions, criminal convictions for certain offenses can form the 

basis for a suspension or revocation proceeding. See 46 C.F.R. § 10.209(e)(1) (“No 

 

8 Codified as 46 U.S.C. § 7101(h) and 46 U.S.C. § 7302(d); 46 U.S.C. § 7109; and 46 U.S.C. § 7703(2).
MMC will be issued as an original or reissued with a new expiration date, and no new 

officer endorsement will be issued if the applicant fails the criminal record review”); 

(“The Commandant considers convictions for offenses detailed in 46 CFR 5.59 and 5.61 

to be convictions that would preclude the issuance or renewal of MMCs. The 

Commandant also considers a conviction for an offense listed in tables 46 CFR 10.201(h) 

or 46 CFR12.02-04(c), to be a conviction that would prevent the issuance or renewal of a 

MMC”). Even in the absence of specific regulations implementing 46 USC § 7703(2), the 

agency has made adequate policy statements in this area.

The Commandant has previously considered the deference due to an agency’s 

construction of a statute it administers. Quoting Chevron U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837, 842-43 (1984), the Commandant stated, “when a reviewing 

court considers an agency’s construction of a statute which it administers, the court is 

confronted with two questions: (1) whether ‘Congress has directly spoken to the precise 

question at issue;’ and (2) if ‘the statute is silent or ambiguous with respect to the specific 

issue, the question for the court is whether the agency's interpretation is based on a 

permissible reading of the statute.’” Appeal Decision 2678 (SAVOIE) (2008). 

Congress has not specifically detailed what convictions would prevent issuance of 

a credential, but 46 U.S.C. § 7101 grants the Coast Guard broad-based authority to 

promulgate regulations and requirements for credentialing mariners:

The Coast Guard’s regulation interpreting Section 7101 is 

clearly entitled to Chevron deference. Because Congress 

did not explicitly speak to the requirements for licensing, 

the Court proceeds to step two in the Chevron analysis. As 

the Supreme Court held in Mead, Chevron deference is 

warranted “when it appears that Congress delegated 

authority to the agency generally to make rules carrying the 

force of law, and that the agency interpretation claiming 
deference was promulgated in the exercise of that 

authority.” 533 U.S. at 226–27, 121 S.Ct. 2164. Here, the 

statute states that the agency shall issue licenses “[u]nder 

regulations prescribed by the Secretary,” and more 

importantly, that “the Secretary shall establish ... other 

qualifying requirements” when issuing licenses for masters. 

46 U.S.C. § 7101. Because Congress explicitly delegated 

authority to the agency to promulgate regulations and 

requirements for licensing masters, this Court “is obliged to 

accept the agency's position” as long as “the agency's 

interpretation is reasonable.” Mead, 533 U.S. at 229, 121 

S.Ct. 2164.

Clifford v. U.S. Coast Guard, 915 F. Supp. 2d 299, 309 (E.D.N.Y.), aff'd 548 F. App’x 23 

(2d Cir. 2013).

Likewise, the Coast Guard has broad authority to promulgate regulations and 

requirements for suspending or revoking credentials under 46 U.S.C. §§ 7701-7705. 

Although the statute does not specifically define “conviction” and the Coast Guard has 

not promulgated regulations on point, they have made policy statements and issued rules 

at 46 C.F.R. Part 10 that address convictions and whether a mariner is a safe and suitable 

person who can be entrusted with the duties and responsibilities of the MMC.

“A similar deference [to the Chevron standard] applies when an agency interprets 

its own regulations.” Auer v. Robbins, 519 U.S. 452 (1997). More specifically, “[t]hat 

interpretation, regardless of the formality of the procedures used to formulate it, is 

‘controlling unless plainly erroneous or inconsistent with the regulation [s].’” Id. at 461. 

Also, an agency’s interpretation is still entitled to respect if there is evidence of 

thoroughness in its consideration, validity in its reasoning, consistency throughout time, 

and other factors “which give it power to persuade.” Clifford v. U.S. Coast Guard, 915 F. 

Supp. 2d 299, 306 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
The Commandant has not directly addressed this issue by regulation, but has 

made clear policy provisions in directives that are binding on Coast Guard investigating 

officers. Added to the clear regulatory statements in 46 C.F.R. § 10.107(b) and 46 C.F.R. 

§ 10.209(e)(1), these establish reasoned consideration in interpreting 46 USC § 7703(2). 

Several other ALJs have reached similar conclusions; while these decisions are not 

binding on me, they are certainly persuasive. See, e.g., U.S.Coast Guard v. Neil, SR2005-21; U.S.Coast Guard v. Ryerse, SR-2010-4; U.S.Coast Guard v. Garcia, SR-2011-

16; and U.S.Coast Guard v. Blackwell, SR-2011-20.

Accordingly, I find that offenses listed in table 1 of 46 C.F.R. § 10.211 are 

convictions that would preclude the issuance or renewal of MMCs. As noted above, the 

purpose of 46 U.S.C. § 7703(2) is to permit the Coast Guard to suspend or revoke an 

MMC if it proves, after opportunity for a hearing, that the holder was convicted of a 

serious criminal offense that would reflect adversely on his or her character and fitness to 

serve consistent with the interest of safety at sea. Most ALJ decisions in this area concern 

felony convictions rather than misdemeanors, but the regulations do encompass both 

felonies and misdemeanors, as well as offenses described in section 205 of the National 

Driver Register Act of 1982. 46 C.F.R. § 10.107. 

Respondent was convicted of Class A misdemeanors. In Oregon, a Class A 

misdemeanor can subject a defendant to twelve months imprisonment and a $25,000 fine. 

An offense other than a petty offense gives rise to a right to jury trial. Under federal law, 

a Class B misdemeanor—which carries a penalty of up to six months incarceration or a 

$5,000 fine—or any lower offense is considered a petty offense. An Oregon Class A 
misdemeanor clearly carries more substantial penalties than a federal Class B 

misdemeanor, and I therefore find it qualifies as serious offense.

Here, the record contains a copy of the Judgment in Case No 15CR10554, dated 

May 7, 2015, in which it is adjudged that the defendant Richard A. Chesbrough has been 

convicted on two counts of Unlawful Water Pollution in the Second Degree. Under 33 

C.F.R. § 20.1307(c), this is conclusive evidence of a conviction. However, I do not agree 

with the Coast Guard’s position that each count constitutes a separate conviction. Rather, 

this is a single conviction encompassing two counts of violating ORS 468.943; it is clear 

from the judgment that these two counts were considered collectively and the penalty the 

court assessed took both counts into consideration. This allegation is PROVED.

III.SANCTION

Having found the allegations proved, I must now issue an appropriate order in this 

matter. 33 C.F.R. § 20.902(a)(2). “An Administrative Law Judge has wide discretion to 

formulate an order adequate to deter the [a mariner’s] repetition of the violations he was 

found to have committed.” Appeal Decision 2475 (BOURDO) (1988).

A. Factors Considered in Determining an Appropriate Order

Coast Guard regulations detail the factors to be considered in determining an 

appropriate order. 46 C.F.R. § 5.569. “The selection of an appropriate order is the 

responsibility of the Administrative Law Judge, subject to appeal and review. The 

investigating officer and the respondent may suggest an order and present argument in 

support of this suggestion during the presentation of aggravating or mitigating evidence.” 

46 C.F.R. § 5.569(a). I am not bound by the Coast Guard’s recommendations.
In determining an appropriate sanction, an ALJ may consider the following 

factors: (1) remedial actions which have been undertaken independently by Respondent; 

(2) the prior record of Respondent, considering the period of time between prior acts and 

the act or offense for which presently charged is relevant; and (3) evidence of mitigation 

or aggravation. See 46 C.F.R. § 5.569(b).

These rules include a Table entitled “Suggested Range of an Appropriate Order,” 

stating Table 5.569 “is for the information and guidance of Administrative Law Judges 

and is intended to promote uniformity in orders rendered. This table should not affect the 

fair and impartial adjudication of each case on its individual facts and merits.” 46 C.F.R. 

§ 5.569(d). 

In Coast Guard suspension and revocation cases, “[t]he sanction imposed in a 

particular case is exclusively within the authority and the discretion of the ALJ,” who is 

not bound by the scale of average orders. Appeal Decision 2628 (VILAS) (citing Appeal 

Decisions 2362 (ARNOLD) and 2173 (PIERCE)). “In the absence of a gross departure 

from the Table of Recommended Awards, the order of the ALJ will not be disturbed on 

review.” Appeal Decision 2628 (VILAS) (citing Appeal Decision 1937 (BISHOP)). 

However, in Coast Guard v. Moore, NTSB Order No. EM-201 (2005), the 

National Transportation Safety Board (NTSB) disapproved an order of revocation in a 

refusal to test case because the Coast Guard did not prove, and the ALJ did not find, 

specific aggravating factors sufficient to depart from the guidance in 46 C.F.R. Table 

5.569. The NTSB stated that “unless and until the Coast Guard changes its regulation, we 

will not uphold an upward departure from the policy currently embodied in the Coast 

Guard's regulation without a clearly articulated explanation of aggravating factors.” The 
Commandant recognized this policy in Appeal Decision 2694 (LANGELY) (2011), and 

the NTSB reiterated its position in Commandant v. Ailsworth, NTSB Order No. EM-211 

(2012). 

B. The Parties’ Arguments Regarding Sanction.

The Coast Guard seeks revocation of Respondent’s MMC, arguing that this is an 

appropriate sanction not only based on the charges found proved here, but also in light of 

Respondent’s extensive prior record. This includes two suspension and revocation 

proceedings, USCG v. Richard Chesbrough, SR-2012-12, Docket Number 2011-0224, 

aff’d by Appeal Decision 2706 (2015) and USCG v. Richard Chesbrough, SR-2013-12, 

Docket Number 2012-0288, aff’d by Appeal Decision 2707 (2015), and a 2013 civil 

penalty for violating the vessel’s COI. The Coast Guard argues that “suspension is an 

inappropriate means of ensuring safe operation by the Respondent in the future as he has 

been suspended in the past, without an apparent remedial change in behavior.”

The Coast Guard advances two additional arguments as to why revocation is 

appropriate. First, by coercing a witness in violation of § 6306, Respondent demonstrated 

a willingness to circumvent the regulatory system put in place to establish minimum 

levels of safety on commercial vessels. The Coast Guard also argues that a finding of 

proved to allegation six (conviction preventing the issuance of Respondent’s license) is 

alone sufficient to justify revocation. They point to Coast Guard policy set out in 

Paragraph B.9.g. of Chapter 4 of the MARINE SAFETY MANUAL VOLUME 5. This 

paragraph states that revocation is the appropriate sanction for cases involving a 

conviction wherein the assessment period is greater than one year. According to the Coast 

Guard licensing regulations, the “assessment period for officer endorsements” for 

criminal violations of environmental laws is a minimum of one year and a maximum of 
10 years. 46 C.F.R. § 10.211(g). The Coast Guard contends that Respondent was 

convicted on two counts of environmental law violations, which would result in an 

assessment period of two years.

Respondent has denied the allegations, asserting that the Coast Guard is taking 

extreme measures in an attempt to force a small company into financial bankruptcy and 

to take his MMC away after 33 years of hard work in the industry. He points to testimony 

in mitigation from just a few of the many people who know their reputation and argues 

that over the past 17 years, they have built a wonderful reputation in the community. 

Citing 46 C.F.R. § 5.61, he argues that the Coast Guard has failed to prove with any 

preponderance of evidence any of these allegations as required, and that he committed no 

act or offense that justifies a sanction of revocation or even suspension.

C. Analysis as to Sanction

The initial issue I must address is the probationary order I imposed on Respondent 

as a result of my decision in USCG v. Richard Chesbrough, SR-2012-12, Docket No. 

2011-0224, affirmed by Appeal Decision 2706 (2015). To deter repeat violations, I 

ordered Respondent to serve a probationary period of eighteen months after completion 

of his outright suspension, and any violation of the conditions of probation would result 

in an additional two month suspension. Probationary violations that would trigger the 

two-month additional suspension included failing to operate the WILLAMETTE QUEEN 

in accordance with its COI or committing a violation of 46 U.S.C. §§ 7703 or 7704, or 

any other navigation or vessel inspection law during the period of suspension for eighteen 

months thereafter.

The probationary order went into effect upon completion of the outright 

suspension assessed in SR-2012-12, Docket No. 2011-0224, which went into effect upon 
the issuance of Appeal Decisions 2706 and 2707 on February 25, 2015. Only allegation 

six in the current proceeding triggers the probationary order because the conduct that 

formed the basis for the other allegations occurred before the effective date of that order.

The minimum suspension that I can issue, therefore, is two months outright. I 

must also issue sanctions for Allegations 2, 3, and 6, all of which I have found proved. 

Two of these allegations involve truthfulness. The Coast Guard relies on credentialed 

mariners to be truthful in the performance of their duties, including reporting casualties 

and operating vessels in accordance with all applicable rules and regulations. Here, 

Respondent represented to Coast Guard investigators, as well as at the formal hearing, 

that he knew the precise circumstances of a casualty in which his vessel supposedly 

allided with a piling. As previously discussed, he knew at the time he made these 

statements that he had not actually seen the vessel allide with a piling and did not know 

with certainty which piling he had hit. Nevertheless, he affirmatively identified a 

particular group of pilings and made unqualified statements about what had occurred.

In my decision in SR-2013-12, Docket No. 2012-0288, I noted that I was 

“concerned with the disparity between Respondent’s statements about complying with 

the COI and his actions. Despite his earlier assurances, he has not demonstrated he takes 

the restriction on the COI seriously enough that he will use the best available measures to 

ensure compliance.” I considered that to be an aggravating circumstance when 

determining the sanction in that case. Likewise, I continue to be very concerned with 

Respondent’s attitude towards regulation. Here, he only had to tell the truth during the 

Coast Guard investigation, which was that the vessel hit something he believed to be a
piling, but he was not certain. Instead, he concocted a story and attempted to induce a 

witness to support that story.

Although the Coast Guard is seeking revocation in this matter, none of the 

offenses as charged are enumerated offenses for which revocation of credentials is sought 

under 46 C.F.R. § 5.61. Arguably, making false statements in a Coast Guard investigation 

or inducing a witness to witness to testify falsely could constitute interference with 

government officials in performance of official duties, which may qualify as an 

enumerated offense under 46 C.F.R. § 5.61(a)(10) (interference with the master, ship’s 

officers, or government officials in performance of official duties). The Commandant has 

considered the meaning of “interference,” holding that it is “generally intended to 

encompass affirmative acts (e.g., a physical motion or verbal pronouncement) . . .” 

Appeal Decision 2608 (SHEPHERD) (1999). In the context of a false statement on a 

mariner’s license renewal application, the Commandant did not find interference. 

However, he left open the possibility that under a different factual scenario, a written 

falsification might be considered interference with a government official in his official 

duties. Id.

Here, The Coast Guard has not specifically raised interference with a government 

official in his official duties under 46 C.F.R. § 5.61(a)(10) as grounds for revocation. 

Additionally, the false statements did not significantly hamper the Coast Guard’s 

investigation. Accordingly, I do not believe the facts in this case establish interference.

In addition to the 11 enumerated offenses for which revocation is routinely 

sought, however, the rules also permit an investigating officer to “seek revocation of a 

respondent’s credential or endorsements when the circumstances of an act or offense 
found proved or consideration of the respondent’s prior record indicates that permitting 

such person to serve under the credential or endorsements would be clearly a threat to the 

safety of life or property, or detrimental to good discipline.” 46 C.F.R. § 5.61(b). Here, 

the Coast Guard has articulated why it considers the combination of Respondent’s prior 

record and the acts found proved here poses a threat to safety at sea.

Passenger safety is of paramount concern, and a mariner should act with the 

highest level of care when transporting passengers. Appeal Decisions 2698 (HOCKING)

(2012) and 2618 (SINN) (2000); see also Huron Portland Cement Co. v. City of Detroit, 

Mich. 362 U.S. 440, 445 (1960). Effective investigation of marine casualties is an 

essential part of the Coast Guard’s duty to maintain and improve the safety of the 

nation’s waterways. Appeal Decision 2261 (SAVOIE) (1981). In particular, Congress 

mandated such investigations in 46 U.S.C. § 6301, which requires “immediate 

investigation of marine casualties under this part to decide, as closely as possible:

(1) the cause of the casualty, including the cause of any 

death;

(2) whether an act of misconduct, incompetence, 

negligence, unskillfulness, or willful violation of law 

committed by any individual licensed, certificated, or 

documented under part E of this subtitle has contributed to 

the cause of the casualty, or to a death involved in the 

casualty, so that appropriate remedial action under chapter 

77 of this title may be taken;

(3) whether an act of misconduct, incompetence, 

negligence, unskillfulness, or willful violation of law 

committed by any person, including an officer, employee, 

or member of the Coast Guard, contributed to the cause of 

the casualty, or to a death involved in the casualty;

(4) whether there is evidence that an act subjecting the 

offender to a civil penalty under the laws of the United 

States has been committed, so that appropriate action may 

be undertaken to collect the penalty;

(5) whether there is evidence that a criminal act under the 

laws of the United States has been committed, so that the 
matter may be referred to appropriate authorities for 

prosecution; and

(6) whether there is need for new laws or regulations, or 

amendment or repeal of existing laws or regulations, to 

prevent the recurrence of the casualty.

46 U.S.C. § 6301.

False statements in casualty investigations and inducing false testimony are not 

among the enumerated offenses in Table 5.569. Of the listed offenses, “Failure to comply 

with U.S. law or regulations” and “Failure to perform duties related to vessel safety” are 

closest to the facts of this case. Given the respondent’s prior record and the impact of his 

actions on the Coast Guard’s marine safety mission, allegations two and three would each 

warrant at least a six-month outright suspension.

The Coast Guard argues that revocation is appropriate for allegation six, citing its 

policy—set out in the MSM—that revocation is the appropriate sanction where the 

assessment period is greater than one year. First, the MSM is not binding on ALJs. 

Second, the two year assessment period cited by the Coast Guard applies only to multiple 

convictions. As stated previously, I have found that Respondent’s guilty plea constituted 

a single conviction encompassing two counts. The relevant assessment period for such a 

conviction is one year. Thus, I do not accept the Coast Guard’s argument that revocation 

is warranted for allegation six.

The table of average orders does not reflect specific recommendations for a 

conviction of this type. Based on the MSM, the convictions here do not relate to 46 

C.F.R. § 5.61 offenses, and the Commandant has not yet issued any binding guidance in 

this area. I have reviewed other ALJ decisions involving similar issues and note that the 

sanctions assessed run from a two-month suspension to revocation. I have considered 
Table 5.569, as well as whether Respondent failed to comply with U.S. law or regulations 

and/or failed to perform duties related to vessel safety. I have further considered the fact 

that the convictions are misdemeanor convictions and did not result in Respondent being 

incarcerated. However, this conviction was the result a plea bargain and could have 

carried a far more serious penalty. Moreover, the $4,000 fine is not insubstantial and is 

particularly significant for the owner/operator of a small business.9 Respondent has not 

shown any remorse for allowing the discharges, stating that it was cheaper to pay the fine 

than to contest the case. Considering all these factors, I would assess at a minimum a sixmonth suspension for this allegation.

D. Conclusions as to Sanction

At a minimum, any suspension assessed in this case would be 20 months (a 

minimum of six months each for allegations two, three, and six, plus two months based 

on the earlier probationary order). However, in considering the lengthy minimum 

suspension plus the aggravating and mitigating factors in this case, I have determined that 

revocation is more appropriate.

The Commandant found revocation to be appropriate in Appeal Decision 2524 

(TAYLOR) (1991) where the “record clearly reflects an intentional, calculated course of 

conduct to circumvent or disregard a previous suspension order of the Administrative 

Law Judge.” Additionally, the Commandant approved revocation in Appeal Decision 

2593 (MOWBRAY) (1997), where a mariner who has not and will not abide by the 

fundamental rules of good seamanship and the requirements of federal law and regulation 

was considered unfit for service under a Coast Guard license on any vessel, and Appeal 

 

9

I note that Respondent’s wife, through a LLC, is actually the owner of the business. However, the record 

is also clear that Respondent often represents himself as owner of the WILLAMETTE QUEEN, and that 
Decision 2654 (HOWELL) (2005), where a mariner’s cavalier attitude or total disregard 

for safety warranted revocation. 

It is settled policy that the ALJ has wide discretion to choose the appropriate 

sanction based on the individual facts of each case. See Appeal Decision 2695 

(AILSWORTH) (2011) at 16. “The ALJ may consider the sanction recommended by [46 

C.F.R. Table 5.569], but Respondent's remedial actions, his prior record, and other 

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

In Appeal Decision 2708 (TROSCLAIR) (2015), the ALJ had found two 

negligence charges and one misconduct charge proved. Although none of these charges, 

standing alone, would warrant revocation, the totality of the facts showed that revocation 

was an appropriate sanction. This case involves violation of a probationary order, two 

proved misconduct charges, and one proved allegation of conviction of an offense that 

would prevent the issuance or renewal of credential. Additionally, Respondent’s prior 

record consists of two previous suspensions and a civil penalty. At this time, permitting 

Respondent to continue serving under his credential or endorsements would be contrary 

to the Coast Guard’s mission to ensure safety at sea.

In light of the evidence presented, I find the aggravated sanction sought by the 

Coast Guard clearly appropriate. I therefore assess a sanction of REVOCATION.

ORDER

IT IS HEREBY ORDERED that the Allegation numbered one in the Complaint is 

found NOT PROVED; and 

IT IS HEREBY FURTHER ORDERED that the Allegations numbered two, three and 

six in the Complaint are found PROVED; and 

 

his decision to accept a plea agreement was based on both family and business finances.
IT IS HEREBY FURTHER ORDERED that the Allegations numbered four and five in 

the Complaint have been WITHDRAWN WITH PREJUDICE; and 

IT IS HEREBY FURTHER ORDERED that Respondent’s Mariner’s Credential is 

REVOKED. In accordance with 5 C.F.R. § 5.567(d), Respondent should surrender his 

MMC to the Coast Guard immediately.

__________________________________________________

George J. Jordan

US Coast Guard Administrative Law Judge

Date: 

July 26, 2016

Originally issued July 6, 2016/revised July 26, 2016.

The parties have a right to appeal this Decision and Order, as set forth in 33 C.F.R. §§

20.1001 – 20.1004 (Attachment A). If Respondent chooses to appeal, he may file a 

request for a temporary credential pursuant to 46 C.F.R. § 5.707.

Respondent should be aware that an order of revocation may be modified within three 

years of the date of the order if the mariner properly files a motion for reopening and 

provides sufficient justification for modification, as described in 33 C.F.R. § 20.904(f). 

Alternatively, he may seek administrative clemency under the provisions of 46 C.F.R. 

Subpart L (46 C.F.R. §§ 5.901-5.905).
APPENDIX A: APPEALS

Procedural Rules for Appeals

33 C.F.R. § 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 C.F.R. § 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 C.F.R. § 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 --

(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 C.F.R. § 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

Additional Rules Concerning Appeals from 46 C.F.R. Part 5

46 C.F.R. § 5.701 Appeals in general.

A party may appeal the decision of an ALJ under the procedures in subpart J of 33 CFR 

part 20. A party may appeal only the following issues:

(a) Whether each finding of fact rests on substantial evidence.

(b) Whether each conclusion of law accords with applicable law, precedent, and public 

policy.

(c) Whether the ALJ committed any abuses of discretion.

(d) The ALJ’s denial of a motion for his or her disqualification.

46 C.F.R. § 5.707 Stay of effect of decision and order of Administrative Law Judge on 

appeal to the Commandant; temporary credential or endorsement.

(a) A person who has appealed from a decision suspending outright or revoking a 

credential or endorsement, except for revocation resulting from an offense enumerated in 

§5.59, may file a written request for a temporary credential or endorsement. This request 

must be submitted to the Administrative Law Judge who presided over the case, or to any 

Officer in Charge, Marine Inspection for forwarding to the Administrative Law Judge.

(b) Action on the request is taken by the ALJ unless the haring transcript has been 

forwarded to the Commandant, in which case, the Commandant will make the final 

action.

(c) A determination as to the request will take into consideration whether the service of 

the individual is compatible with the requirements for safety at sea and consistent with 

applicable laws. If one of the offenses enumerated in § 5.61(a) has been found proved, 

the continued service of the appellant will be presumed not compatible with safety at sea, 

subject to rebuttal by the appellant. A temporary credential or endorsement may be 

denied for that reason alone.
(d) All temporary credentials or endorsements will provide that they expir4e not more 

than six months after issuance or upon service of the Commandant’s decision on appeal, 

whichever occurs first. If a temporary credential expires before the Commandant’s 

decision is rendered, it may be renewed, if authorized by the Commandant.

(e) If the request for a temporary credential or endorsement is denied by the 

Administrative Law Judge, the individual may appeal the denial, in writing, to the 

Commandant within 30 days after notification of such denial. Any decision by the 

Commandant to deny is the final agency action.

(f) Copies of the temporary credential issued become a party of the record on appeal.

§ 5.713 Appeals to the National Transportation Safety Board.

(a) The rules of procedure for appeals to the National Transportation Safety Board from 

decisions of the Commandant, U.S. Coast Guard, affirming orders of suspension or 

revocation of credentials or endorsements are in 49 CFR part 825. These rules give the 

party adversely affected by the Commandant’s decision 10 days after service upon him or 

his attorney of the Commandant’s decision to file a notice of appeal with the Board.

(b) In all cases under this part which are appealed to the National Transportation Safety 

Board under 49 CFR part 825, the Chief Counsel of the Coast Guard is designated as the 

representative of the Commandant for service of notices and appearances. 

Communications should be addressed to Commandant (CG–094), U.S. Coast Guard, 

2100 2nd St. SW., Stop 7121, Washington, DC 20593–7121.

(c) In cases before the National Transportation Safety Board the Chief Counsel of the 

Coast Guard may be represented by others designated of counsel.

§ 5.715 Stay of effect of Decision of the Commandant on Appeal: Temporary credential

and/or endorsement pending appeal to National Transportation Safety Board.

(a) A Decision of the Commandant on Appeal affirming an order of revocation, except a 

revocation resulting from an offense enumerated under § 5.59 or suspension that is not 

placed entirely on probation, which is appealed to the National Transportation Safety 

Board, may be stayed if, in the Commandant’s opinion, the service of the appellant on 

board a vessel at that time or for the indefinite future would be compatible with the 

requirements of safety at sea and consistent with applicable laws. If one of the offenses 

enumerated in § 5.61(a) has been found proved, the continued service of the appellant 

will be presumed not compatible with safety at sea, subject to rebuttal by the appellant; in 

cases of offenses under § 5.61(a), a temporary credential and/or endorsement may be 

denied for that reason alone.

(b) A stay of the effect of the Decision of the Commandant on Appeal may be granted by 

the Commandant upon application by the respondent filed with the notice served on the 

Commandant under 49 CFR 825.5(b).

(c) An Officer in Charge, Marine Inspection, on presentation of an original stay order, 

issues a temporary credential and/or endorsement as specified in the stay order. This 

credential and/or endorsement is effective for not more than six months, renewable until 

such time as the National Transportation Safety Board has completed its review.
APPENDIX B: LIST OF WITNESSES AND EXHIBITS

Witnesses:

For the Coast Guard:

Richard Chesbrough, Respondent

Dawane Harris

Gregg Thompson

John Edward Nay

Daniel C. Austin

Travis Nolen

James Crouse

For the Respondent:

Barbara Chesbrough

Michael Pearson

Larry McDonald

Timothy King

Terry Sol

Noel Grefenson

Exhibits:

For the Coast Guard:

CG-01 Statement by Mr. Dawane Harris

CG-02 Statement by Mr. Gregg Thompson, passenger

CG-03 Drawing of the incident submitted by Mr. Harris

CG-04 Passenger list provided by Cindy Myers

CG-05 Audio recording of Respondent’s interview conducted on March 

21, 2013 at MSU Portland

CG-06 Documents used during Respondent’s interview, including a 

Google Map printout of the Willamette Slough

CG-07 Evidence relating to withdrawn allegations four and five

CG-08 Judgment of Marion County Circuit Court in State v. Chesbrough, 

dated May 7, 2015

CG-09 

through 11

Evidence relating to withdrawn allegations four and five

CG-12 Audio of recorded telephone call between Respondent and Mr. 

Harris

CG-13 Audio of second voicemail from Respondent to Mr. Harris

CG-14 Audio of first voicemail from Respondent to Mr. Harris

CG-15 Civil Penalty Documents for EA 4756817

CG-16 Record of deficiencies for PV WILLAMETTE QUEEN

CG-17 Memorandum 16722/1941831 dated October 21, 2015
CG-18 River gauge chart for 15-17 November 2012

CG-19 River gauge chart for 27-29 October 2015

CG-20 Willamette Slough photo (DJI_0044.jpeg)

CG-21 Willamette Slough photo (DJI_0048.jpeg)

CG-22 Willamette Slough photo (DJI_0049.jpeg)

CG-23 Willamette Slough photo (PA290516.jpeg)

CG-24 Willamette Slough photo with markings made by Respondent at the 

hearing

CG-25 Willamette Slough photo with markings made by Mr. Harris at the 

hearing

CG-26 Coast Guard Activity Summary Reports, various dates

CG-27 EPA-CID Summary of Investigation

CG-28 Marion County Circuit Court Amended Information for Case No. 

15CG10554, State v. Chesbrough

For Respondent:

R-A Instructions for Completion of Form CG-2692 Report of Marine 

Casualty and Form CG-2692A, Barge Addendum, 1 page

R-B Copy of National Weather Service Advanced Hydrologic Prediction 

Service, dated September 14, 2015, 2 pages 

R-C Pictures – C 1 of 3 aerial picture of pilings that were struck, C 2 of 

3 picture of river bank and pilings, and C 3 of 3 picture of river 

bank and pilings, 3 pages

R-D Pictures – D 1 of 3 picture of pilings, D 2 of 3 up close picture of 

pilings, D 3 of 3 picture of fathometer reading next to pilings, 3 

pages 

R-E Picture of starboard stern thruster cowling showing damage from 

striking piling, 1 page

R-F Summary of findings from Abegweit Marine Surveyors, 1 page

R-G G 1 of 9 Cruise of the Dead, G 2 of 9 Cruise of the Dead 

advertisement from internet, G 3 – 6 of 9 e-mails btw R & 

customer, G7 -8 of 9 e-mails btw R & customer, G 9 of 9 e-mail 

btw R & customer, 9 pages

R-H Information regarding Dawane Harris , 2 pages

R-I I 1 of 15 Information from Groupon, I 2 -15 reviews of ghost tour, 

15 pages

R-J Copy of The Tombstone News, dated September 10, 2015, 2 pages

R- K Customer Reviews of Spirit Expeditions, 4 pages

R-L Facebook posts from Spirit Expeditions pulled June 26, 2015, 10 

pages

R-M Spirit Expeditions Reviews, 3 pages

R-N Trip Advisor Reviewer Highlights, 7 pages

R-O Criminal Records of Dawane Harris, dated Sep 10, 2015, 17 pages

R-P Criminal print out on Dawane Harris, dated Sep 10, 2015, 6 pages

R-Q Manifest, dated Mar 17, 2015, 1 page
R-R E-mail from Office Manager, Karen Landers, dated Feb 24, 2015, 1 

page

R-S Statement from Karen Landers, dated Sep 4, 2015, 1 page

R-T Letter from LCDR B.P. Russell, dated Mar 17, 2015, 1 page

R-U Statement signed by 6 passengers , 1 page

R-V Statement from Sonya Goldman, dated Sep 15, 2015, 1 page

R-W Statement from Gary & Karen Smith, dated Oct 31, 2015, 1 page

R-X X 1-5 of 9 Letters from R to Noel Grefenson, X 6-9 R’s court 

documents, 9 pages 

R-Y Pictures showing dishwasher plumbing overflow system, 5 pages

R-Z Pictures showing common occurrence of scum around vessel and 

dock caused by back flowing river hydrology due to location of 

function of Willamette slough & river itself, 11 pages

R-AA Photos of homeless camps adjacent to boat dock, 3 pages

R-AB Newspaper article about contamination in park, 2 pages.

R-AC Photo of sign near boat dock warning of contaminated water, 1 

page

R-AD Google search for E. Coli, 1 page 

R-AE Information from Autochlor, dated Sep 17, 2015, 5 pages

R-AF EPA report, 1 page

R-AG Inspection logs, 16 pages

R-AH Legislative Report article, dated May 16, 2015, 4 pages

R-AI Exhibits presented as mitigation, 4 pages

R-AJ Profit & Loss 2014 records, 2 pages

R-AK Letters presented as mitigation, 8 pages

R-AL Two articles, 1 page

R-AM NMA Report #R-448, Revision 1, 10 pages

R-AN Letter to Commandant from Ron Wyden, Jeffrey A. Merkley, and 

Kurt Schrader, 1 page

R-AO Draft Legislative Language, 2 pages

R-AQ Picture of Willamette Queen on land, 1 page

R-AR Newspaper articles, 2 pages & 2 pictures of river, 4 pages

R-AS Salem Magazine article, 3 pages