WHERE’S THE EVIDENCE? 

Written By CDR Mark Hammond

Those of you that have been around for a while might remember the 

popular TV commercials that aired a while back for one of the big 

fast food chains. The ads featured an elderly woman who was so 

shocked by the small size of a competitor’s hamburgers that she 

would exclaim “where’s the beef?” I’m sometimes reminded of those 

ads when I review violation cases that are forwarded to the Coast 

Guard Hearing Office for adjudication. The “small size” of the 

evidence forces one to wonder “where’s the evidence?”; the “beef” if 

you will. 

A common reason for certain violations or even entire cases being 

dismissed by a Hearing Officer is the lack of evidence in the case file 

to support a violation. Without sufficient evidence to support each 

element of a violation as alleged, Hearing Officers cannot proceed 

with the adjudication of the violation. To proceed, the Hearing 

Officer must find a “prima facie case.”

A prima facie case is found when the Hearing Officer determines 

that there is good and sufficient evidence in the case file to support 

each element of a violation. Absent evidence to the contrary, the 

violation can be found “proved” based on the evidence in the case file. 

Evidence to the contrary is typically provided to the Hearing Officer 

by the charged party. 

Remember the Enforcement Summary is simply a summary of the 

violation case. The “evidence” is in the details found in the Activity 

Summary Report (ASR) and / or case exhibits and enclosures. These 

are documents, photographs, and statements of boarding team 

members, investigators, witnesses, etc. It is this evidence that a 

Hearing Officer relies on when determining if there is a prima facie 

case to proceed with adjudication. It is also this evidence that the 
charged party relies on in order to have a meaningful opportunity to 

comment and provide evidence in defense, extenuation, and 

mitigation.

For example, according 46 U.S.C. 2302(a), a person operating a 

vessel in a negligent manner or interfering with the safe operation of 

a vessel, so as to endanger the life, limb, or property of a person is 

liable to the U.S. Government for a civil penalty. For violations of 

this statutory provision, a brief narrative that simply states: “Subject 

operated too fast in a No-Wake Zone” with no other details might be 

insufficient to support a violation for negligent operations. Details 

are important to understanding a violation. In this example, details 

might include how the operator was negligent and how the 

operator’s, actions, or inactions endangered life, limb, or property. 

Details also might include how the boarding officer identified the 

operator, a description of weather conditions, visibility, traffic 

density, hazards in the water (ie, swimmers, paddlers), speed of 

vessel, etc. 

For PFD serviceability violations, simply stating “Vessel’s PFDs 

were found unserviceable” might be insufficient to support all 

elements of the violation. 33 CFR 175.23 sets forth the serviceability 

requirements for PFDs and describes some conditions in which PFDs 

are found to be unserviceable. For these types of violations, a 

description as to the specific discrepancies that caused the boarding 

team to determine that the PFDs were unserviceable would be 

helpful to understanding the violation. For example, where and how 

big was the rip or tear; where and how long were the open seams in 

the fabric or coating of the PFD, and the location, size, and degree of 

any finding of the PFD being water logged, oil-soaked, etc.

Similarly, a case file that included a narrative statement on the ASR 

that says “vessel’s navigation lights were inoperable” could be better 

explained by including the time the vessel was boarded and the time 

of sunset/sunrise on the day of the boarding. 

A clear understanding of the regulation that was violated is helpful 

when determining the details necessary to be documented to 

constitute “good and sufficient” evidence in support of each element 

of the violation. “Good and sufficient” evidence provides the charged 
party with a clear understanding of the alleged violation and a basis 

upon which to make informed decisions regarding their response to 

the Hearing Officer.