UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

v. 

James David Graves 

Respondent 

_______________________ 

Docket No: 07-0488 

CG Enforcement Activity No: 3066780 

DECISION AND ORDER

Issued: June 9, 2008 

Issued by: HON. BRUCE T. SMITH 

Administrative Law Judge 

Appearances:

For Complainant

LT John R. Luff 

LT(jg) Lincoln Puffer 

Marine Safety Unit Morgan City 

800 David Drive, Room 232 

Morgan City, LA 70380 

For Respondent

James David Graves, Pro se

[REDACTED]
 I. TABLE OF CONTENTS 

I. TABLE OF CONTENTS ............................................................................................... 2 

II. PRELIMINARY STATEMENT................................................................................... 3 

III. FINDINGS OF FACT.................................................................................................. 5 

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW..................... 9 

V. DISCUSSION............................................................................................................. 11 

A. General............................................................................................................ 11 

B. Burden and Standard of Proof......................................................................... 11 

C. Acting Under the Authority............................................................................. 12 

D. Misconduct...................................................................................................... 13 

1. Insufficient Credentials........................................................................ 14 

2. Possession and Use of Counterfeit License ......................................... 18 

3. False Statements to Coast Guard Investigators.................................... 24 

E. Respondent’s Affirmative Defenses................................................................ 26 

1. Reliance on NVIC 4-01 ....................................................................... 26 

2. Mistake of Fact .................................................................................... 28 

VI. SANCTION............................................................................................................... 33 

VII. ORDER .................................................................................................................... 37 

ATTACHMENT A - LIST OF WITNESSES AND EXHIBITS ..................................... 39 

ATTACHMENT B – SUBPART J, APPEALS ............................................................... 40 

Certificate of Service ........................................................................................................ 42 

2
II. PRELIMINARY STATEMENT 

The United States Coast Guard (“Coast Guard”) filed a Complaint dated 

September 27, 2007, against James David Graves (“Respondent”) seeking revocation of 

Respondent’s Merchant Mariner’s License (“MML”) and Merchant Mariner’s Document 

(“MMD”) for violation of law or regulation under 46 CFR 5.33. The case involves Coast 

Guard allegations that Respondent was operating outside the scope of his official Coast 

Guard credentials, possessed a fraudulent MML bearing unauthorized upgrades to his 

official MML, and made false statements related thereto in connection with an ongoing 

Coast Guard investigation. 

The ALJ Docketing Center received Respondent’s Answer on October 12, 2007, 

wherein Respondent generally denied the Complaint’s factual and jurisdictional 

allegations. Respondent defended by stating that he was “operating within the scope of 

NVIC 4-01” and requested a hearing before an Administrative Law Judge. The Coast 

Guard brought this action pursuant to the legal authority contained in 46 U.S.C. 7703, 

and the proceedings were conducted in accordance with the procedural requirements of 5 

U.S.C. 551-59, 46 CFR Part 5, and 33 CFR Part 20. 

On October 30, 2008, the undersigned conducted a pre-hearing telephone 

conference with the parties. The Administrative Law Judge discussed a variety of 

procedural matters with the parties and explained to Respondent the significance of the 

instant proceedings. The undersigned also stressed that Respondent should give serious 

consideration to retaining able legal counsel, given the magnitude of the charges levied 

against him. The undersigned specifically suggested that Respondent might explore state 

3
pro bono legal programs, law school legal clinics, and/or other legal aid resources. 

Despite this suggestion, Respondent chose to proceed pro se. 

Thereafter, on November 2, 2007, the Coast Guard filed a written Motion to 

Amend the Complaint. The Amended Complaint alleged three (3) counts of Misconduct 

under 46 CFR 5.27 defined as behavior that violates some formal, duly established rule. 

Specifically, the Coast Guard alleged that Respondent violated 46 CFR 15.910(a) by 

operating an uninspected towing vessel without proper credentials pursuant to applicable 

regulatory requirements; that Respondent violated 18 U.S.C. 2197 by unlawfully 

possessing a counterfeit Coast Guard MML in his name while on board the UTV MARIE 

M. MORGAN; and that Respondent violated 18 U.S.C. 1001(a) by telling Coast Guard 

investigators that the Coast Guard issued the license in question. The Coast Guard 

proposed revocation on each count. 

On November 13, 2007, the undersigned entered an Order granting the Coast 

Guard’s Motion to Amend the Complaint and directing, inter alia, that Respondent had 

twenty days from his receipt of the Amended Complaint within which to file an Answer 

thereto. On November 19, 2007, Respondent filed an Answer to the Amended Complaint 

generally denying all jurisdictional and factual elements and requesting hearing before an 

Administrative Law Judge. 

On December 12, 2007, this matter came on for hearing in New Orleans, LA, with 

Respondent appearing pro se. After the Coast Guard began the initial presentation of its 

case-in-chief, the undersigned recessed the hearing and asked the Coast Guard to obtain 

forensic evidence pertaining to the authenticity of Respondent’s MML. See 33 CFR 

20.202(f)-(g). 

4
On March 18, 2008, at 10:00 am, the hearing was reconvened in New Orleans, 

LA and, after the presentation of both cases, was recessed on the afternoon of March 18, 

2008. Both parties appeared and presented their respective cases and rested. Six (6) 

witnesses testified as part of the Coast Guard’s case in chief and the Coast Guard offered 

seven (7) exhibits into evidence, all of which where admitted. Respondent testified on 

his own behalf and called four (4) other witnesses. Respondent offered three (3) exhibits 

into evidence, all of which were admitted. 

At the conclusion of the hearing, the undersigned informed the parties that each 

would be entitled to make their respective closing arguments in writing and also to file 

post hearing briefs. The deadline for written closing arguments and post hearing briefs 

was set for close of business on April 2, 2008. 

On March 19, 2007, the undersigned conducted a recorded post-hearing 

conference with the parties and asked for additional evidence and briefing to be filed with 

their written closing arguments. The undersigned also disclosed receipt of an ex parte

communication from a third person not party to the instant litigation and ordered that that 

the record would close on April 2, 2008. Both parties submitted their closing arguments 

as part of their post-hearing written submissions. 

III. FINDINGS OF FACT 

Based upon the totality of the evidence presented and after due consideration, the 

undersigned makes the following findings of fact: 

1. That on September 24, 2007 and at all relevant times, Respondent was the holder 

of Merchant Mariner’s License number 1114246 and a Merchant Mariner 

Document. (Tr. 28-28). 

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2. That Respondent is an experienced mariner and has worked in the marine industry 

for many years. (CG Ex. 3; Tr. 209, 239). 

3. That on September 24, 2007, Respondent was onboard the uninspected towing 

vessel (“UTV”) MARIE M. MORGAN (O.N. 628798). (Tr. 193, 201-203). 

4. That the UTV MARIE M. MORGAN was a 98 GRT vessel, 56.4 feet in length. 

(CG Ex. 5; Tr. 180). 

5. That on September 24, 2007, the UTV MARIE M. MORGAN experienced a 

minor grounding upon a submerged object. (Tr. 35, 46). 

6. That at the time of the minor grounding, Respondent was operating the UTV 

MARIE M. MORGAN alone in the wheelhouse (without the vessel’s master with 

him) and was in charge of navigating and maneuvering the vessel. (Tr. 37, 46). 

7. That shortly after the minor grounding, Coast Guard Lt. John Luff conducted an 

investigation on board the UTV MARIE M. MORGAN. (Tr. 45-55). 

8. That during the investigation, Lt. Luff questioned Respondent about the 

grounding and asked the Respondent to produce his Coast Guard credentials. (Tr. 

49). 

9. That upon Lt. Luff’s request for Respondent’s Coast Guard credentials, 

Respondent presented to Lt. Luff a purported 200 GRT license, serial number 

1114246, issue number 3, dated February 22, 2005, and bearing a towing 

endorsement and a 2007 radar endorsement on the reverse side. (CG Ex. 2; Tr. 

37, 47-52). 

10. That during Coast Guard Lt. Luff’s investigation of the minor grounding incident 

and at several points during the Coast Guard investigation, Respondent 

6
represented, by words and actions, to Coast Guard investigators that he was 

entitled to a 200 GRT license, that the purported 200 GRT license in his 

possession was authentic, and that the Coast Guard had issued the purported 200 

GRT license to him. (Tr. 47, 49). 

11. The purported 200 GRT license was counterfeit and had the following 

characteristics: 

a. Was wholly printed with an ink jet printer. (Tr. 117). 

b. Was printed on standard printer paper. (Tr. 49, 117). 

c. Did not have microline printing in key areas. (Tr. 118). 

d. Bore the purported signature of a former Coast Guard employee who had 

retired from the Coast Guard six months prior to the signature date which 

appears on the contested document. (Tr. 141). 

12. By contrast, authentic Coast Guard mariner’s licenses are created in the following 

fashion: 

The process begins at the Federal Bureau of Engraving and Printing 

(“FBEP”) The FBEP creates blank license templates on special paper 

stock and pre-prints them (using special offset lithograph type printing) 

with individual serial numbers; various printed designs and patterns 

around the border of the document; the text “United States Coast Guard;” 

and several other designs and security features. The blank license 

templates are subsequently shipped in batches to the Coast Guard 

Regional Exam Centers (“REC”) for further processing. 

The process continues when the Coast Guard RECs later convert these 

blank templates into official Coast Guard licenses. The REC will then 

generate a license for an individual mariner by loading the blank template 

from the FBEP into a black-ink laser printer to add the mariners’ name 

and other pertinent information. 

(Tr. 117-124). 

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13. At no time did the New Orleans REC possess or use color ink jet printers and 

could only print with black ink using a laser printer. (Tr. 144). 

14. The Coast Guard stopped printing radar endorsements on the reverse side of Coast 

Guard licenses in 2002. (Tr. 140). 

15. On January 10, 2005, Respondent sent a letter to the New Orleans, LA REC from 

his home in Alabama seeking renewal of his 100 GRT “License, MMD and 

STCW” and also seeking information how to upgrade his 100 GRT License to a 

200 GRT license. Respondent also included in that letter several documents 

necessary to the renewal of his 100 GRT license. (CG Ex. 1, p. 27). 

16. That on or about between January 10 and 18, 2005, Respondent tendered a 

personal check, No. 2377, in the amount of $140.00 to the REC as part of his 

application to renew his 100 GRT license. (CG Ex. 1, p. 39; Tr. 260, 262). 

17. That on or about between February 18 and 22, 2005, Respondent was present at 

the New Orleans REC to be fingerprinted as part of the “Renewal License/MMD” 

process and not to apply for a 200 GRT license. (CG Ex. 1, p. 38). 

18. That at all relevant times herein Respondent held a legitimate 100 GRT Coast 

Guard-issued license but did not possess a legitimate 200 GRT Coast Guard 

license, nor a Coast Guard Master of Towing Vessels license, nor a Mate (Pilot) 

of Towing Vessels license, nor or any towing or radar endorsements or 

designations. (Tr. 47-48, 253-254). 

19. The Coast Guard’s records regarding Respondent are complete and not missing 

any pertinent information. (Tr. 146-147). 

8
20. That Respondent has not accomplished the necessary qualifications or 

prerequisites to entitle to him to a 200 GRT license. (CG Ex. 1). 

21. That Respondent attempted to gain employment as a tow operator under his 100 

GRT license by attempting to rely on his reading of Navigation Vessel 

Information Circular (NVIC) 4-01. That Circular does NOT bear the weight of 

any controlling legal authority herein. (Tr. 191). 

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. James David Graves holds a Coast Guard issued Merchant Mariner’s License and 

Merchant Mariner’s Document. 

2. At all times pertinent to this case, James David Graves was acting under the 

authority of his Coast Guard license when operating the UTV MARIE M. 

MORGAN and when participating in and giving statements in connection to an 

ongoing Coast Guard investigation. 

3. At all times pertinent to this case, James David Graves held a 100 GRT license 

and never held a 200 GRT license or a towing or radar endorsements or 

designations. 

4. James David Graves’ 100 GRT license was an insufficient credential to operate 

the UTV MARIE M. MORGAN alone in the wheelhouse or for him to be in 

charge of its maneuvering and navigation. 

5. The charge of Misconduct against James David Graves, based upon his operation 

of the UTV MARIE M. MORGAN with an insufficient credential, is found 

PROVED. 

9
6. The purported 200 GRT license that James David Graves possessed and presented 

to the Coast Guard during its investigation was counterfeit. 

7. James David Graves knew or should have known that the purported 200 GRT 

license was counterfeit. 

8. The charge of Misconduct against James David Graves, based on his possession 

and use of a counterfeit Coast Guard license, is found PROVED. 

9. That by words and actions, James David Graves told Coast Guard investigators 

during an ongoing investigation that he was entitled to hold a 200 GRT license, 

that the purported 200 GRT license was authentic, and that the Coast Guard 

issued the purported 200 GRT license to him. 

10. James David Graves knew or should have known that the statements he made, and 

referenced in paragraph 9, supra, were false. 

11. The charge of Misconduct against James David Graves, based on his false 

statements to the Coast Guard during an ongoing investigation, is found 

PROVED. 

12. The NVIC 4-01 is without binding legal authority and did not authorize James 

David Graves to operate the UTV MARIE M. MORGAN with only a 100 GRT 

license alone in the wheelhouse or to be in charge of its maneuvering or 

navigation on September 24, 2007. 

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V. DISCUSSION 

A. General 

This Suspension and Revocation proceeding is remedial and not penal in nature 

and is “intended to help maintain the standards of competence and conduct essential to 

the promotion of safety at sea.” See 46 CFR 5.5. The Commandant has delegated to 

Administrative Law Judges the authority to suspend or revoke a license, certificate, or 

merchant mariner’s document for violations arising under 46 U.S.C. 7703. See 46 CFR 

5.19. 

It is important to note that determining the weight of the evidence and making 

credibility determinations as to the evidence is within the sole purview of the ALJ. See 

Appeal Decision No. 2640 (PASSARO) (2003). Also, the ALJ is vested with broad 

discretion in resolving inconsistencies in the evidence, and findings do not need to be 

consistent with all of the evidence in the record as long as there is sufficient evidence to 

reasonably justify the findings reached. Id.; Appeal Decision No. 2639 (HAUCK)

(2003). 

B. Burden and Standard of Proof

The Coast Guard has the burden of proving the allegations of the Complaint by a 

preponderance of the evidence. 33 CFR 20.701-02. Appeal Decision Nos. 2468 

(LEWIN); 2477 (TOMBARI); See also, Dept. of Labor v. Greenwich Colleries, 512 U.S. 

267 (1994); Steadman v. SEC, 450 U.S. 91, 101-3 (1981). It is important to note that this 

standard also applies in deciding whether an underlying criminal statute has been violated 

when it has been alleged as an element of a Misconduct charge. Appeal Decision No. 

2346 (WILLIAMS) (1984). To prevail under this standard, the Coast Guard must 

11
establish that it is more likely than not that Respondent committed the violations alleged 

in the Complaint. See 33 CFR 20.701-702(a). See also, Herman & MacLean v. 

Huddleston, 459 U.S. 375, 390 (1983). To satisfy the burden of proof, the Coast Guard 

may rely on direct and/or circumstantial evidence. See generally, Monsanto Co. v. 

Spray-Rite Serv. Corp., 465 U.S. 752, 764-765 (1984). The proceeding is conducted 

under the provisions in 33 CFR Part 20, 46 CFR Part 5, and the Administrative Procedure 

Act, 5 U.S.C. 551 et. seq. 

C. Acting Under the Authority 

The Coast Guard charged Respondent with three (3) counts of Misconduct under 

46 CFR 5.27. It alleged that on September 24, 2007, Respondent operated an 

uninspected towing vessel without the proper credentials; that he unlawfully possessed a 

counterfeit Coast Guard MML in his name while on board the UTV MARIE M. 

MORGAN; and that he subsequently told Coast Guard investigators that the Coast Guard 

issued to him the license in question – a fact the Coast Guard alleges to be untrue. 

These charges cannot be found proved unless the Coast Guard establishes that 

Respondent was acting under the authority of his Coast Guard license during the alleged 

Misconduct. See 46 U.S.C. 7703(1). “A person employed in the service of a vessel is 

considered to be acting under the authority of a license . . . when the holding of such 

license . . . is [r]equired by law or regulation.” See 46 CFR 5.57(a). Furthermore, “a 

person is considered to be acting under the authority of the license, certificate or 

document . . . while engaged in official matters regarding the license, certificate or 

document. This includes, but is not limited to, such acts as applying for renewal of a 

license, taking examinations for upgrades or endorsements, requesting duplicates or 

12
replacement licenses, certificates or documents, or when appearing at a hearing under this 

part.” See 46 CFR 5.59(b). 

This was not a point of contention at any time during the case and the weight of 

the evidence clearly shows that Respondent was serving on board the UTV MARIE M. 

MORGAN under 46 CFR 15.812 on September 24, 2007 during counts one and two of 

the alleged Misconduct. With respect to the subsequent Coast Guard investigation 

regarding the origin of the license in question, I find that Respondent’s participation 

therein and statements given in connection thereto are within the scope of official matters 

regarding the license, certificate or document. See 46 CFR 5.59(b). Respondent is 

therefore found to have been acting under the authority of his Coast Guard MML and 

MMD at all relevant times.

D. Misconduct 

As discussed below, Respondent is found to have committed three (3) acts of 

Misconduct by operating the UTV MARIE M. MORGAN without sufficient credentials, 

by possessing and using a counterfeit Coast Guard license, and by making false 

statements to Coast Guard investigators in connection with an ongoing investigation. 

Misconduct is defined as a “behavior which violates some formal, duly established rule. 

Such rules are found in . . . statutes, regulations, the common law, the general maritime 

law . . . and similar sources. It is an act which is forbidden or a failure to do that which is 

required.” See 46 CFR 5.27. Each of the three (3) counts of Misconduct is discussed in 

turn. 

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1. Insufficient Credentials 

The Coast Guard alleged that on September 24, 2007, Respondent violated 46 

CFR 15.910(a) by operating the towing vessel UTV MARIE M. MORGAN without 

holding sufficient credentials. 

Title 46 of the Code of Federal Regulations Section 15.910(a) specifies that “[n]o 

person may serve as master or mate (pilot) of any towing vessel without meeting the 

requirements of 46 CFR 15.805(a)(5) or 15.810(d)” 46 CFR 15.805(a)(5) requires that 

“[e]very towing vessel of at least 8 meters (at least 26 feet) or more in length must be 

under the command of a master of towing vessels, or a mariner licensed as a master of 

inspected, self-propelled vessels greater than 200 gross register [sic] tons (GRT) holding 

either: (i) A completed Towing Officer’s Assessment Record (TOAR), bearing the 

signature of a Designated Examiner and stating that the Examiner found the candidate 

proficient; or (ii) a license endorsed for towing vessels.” 

Likewise section 15.810(d) requires, “[e]ach person in charge of the navigation or 

maneuvering of a towing vessel of at least 8 meters (at least 26 feet) in length must hold a 

license authorizing service as either, (1) Mate (pilot) of towing vessels; or (2) Mate of 

inspected self-propelled vessels greater than 200 GRT within any other restrictions on the 

officer’s license, holding either: (i) A completed Towing Officer’s Assessment Record 

(TOAR) bearing the signature from a Designated Examiner found the candidate 

proficient; or (ii)A license endorsed for towing vessels.” 

It is undisputed that the UTV MARIE M. MORGAN was a 98 GRT towing vessel 

and was 56.4 feet in length. (CG Ex. 5; Tr.180). Thus, it fell within the class of vessels 

described in 46 CFR 15.805(a)(5) and 15.810(d) Furthermore, the parties agree that on 

14
September 24, 2007, Respondent was serving as master or mate (pilot) and was in charge 

of navigation and maneuvering of the UTV MARIE M. MORGAN when he was 

operating the vessel alone in the wheelhouse. (Tr. 193, 201, 203). The only issue for 

resolution of this allegation turns on whether Respondent had sufficient credentials to 

serve on the UTV MARIE M. MORGAN in this capacity. 

Respondent testified that he never held a Coast Guard-issued mariner’s master of 

towing vessel license or a mate or pilot of towing vessel license. (Tr. 254). 

 Lt John Luff, the Coast Guard Investigating Officer, testified that on September 

24, 2007, he conducted an investigation into the minor grounding incident involving the 

UTV MARIE M. MORGAN on the Intercoastal Waterway near Houma, LA. During the 

course of his investigation, Lt. Luff interviewed the Respondent who explained how the 

incident had occurred. (Tr. 35). 

During the course of his investigation, Lt Luff received from the Respondent a set 

of documents which the Respondent described as his “TOAR” (Towing Officer’s 

Assessment Record). The Coast Guard did not provide any direct or circumstantial 

evidence regarding the sufficiency of the Respondent’s TOAR. Respondent testified that 

the TOAR documents he provided to Lt Luff were aboard the UTV MARIE M. 

MORGAN per his employer’s guidance. (Tr. 262). 

During the course of his investigation, Lt Luff also received from the Respondent 

a purported 200 GRT license, serial number 1114246, “issue number 3,” dated 22 

February 2005, and bearing a radar endorsement on the reverse side dated 30 May 2007. 

(CG Ex. 2; Tr. 66-67). 

15
Upon receipt of Respondent’s license, Lt Luff noted a discrepancy between the 

200 GRT license he was given and the 100 GRT, “issue number 2” license, which Coast 

Guard records reflect the Respondent was entitled to. Moreover, Lt Luff also testified 

that Coast Guard records reflected that the Respondent’s 100 GRT license (which, 

incidentally, was also dated 22 February 2005) did not include either a towing 

endorsement OR a radar endorsement. (Tr. 47-48). 

Lt Luff testified that based upon his cursory evaluation of the Respondent’s 

license (CG Ex 2), vis a vis Coast Guard records, he believed the document to be a 

forgery. (Tr. 48). 

 The Coast Guard introduced evidence that Respondent was never entitled to hold 

a Coast Guard-issued 200 GRT license or a towing or radar endorsement. Specifically, 

the Coast Guard introduced evidence that Respondent only held a 100 GRT license with 

no towing or radar designations or endorsements whatsoever. (CG Ex. 1; Tr. 47-48). 

The Coast Guard produced Respondent’s entire complete paper file and 

introduced an excerpt of said file as Coast Guard Exhibit 1. This exhibit clearly shows 

that Respondent held a 100 GRT license; that he applied to have the 100 GRT license 

renewed in 2005; that he paid $140.00 dollars for the renewal; and that the Coast Guard 

actually renewed the 100 GRT license in February 2005. (CG Ex. 1, p. 5, 8). The Coast 

Guard’s records relating to Respondent contain no evidence or indicia that Respondent 

was ever issued, or even applied for, a 200 GRT license. (CG Ex. 1). 

Respondent insisted, however, that he did apply for an upgrade to a 200 GRT 

license and a towing and radar endorsement and that the Coast Guard subsequently 

granted them. However, the only evidence of this assertion is the counterfeit license 

16
itself. Respondent could not produce a canceled check or any other documentary 

evidence indicating that he ever applied for an upgrade to a 200 GRT license or for a 

towing or radar endorsement. Furthermore, there was no evidence that Respondent 

accomplished any of the necessary prerequisites to be qualified to hold a 200 GRT 

license. It is also noteworthy that the counterfeit 200 GRT, license bearing the 

unauthorized upgrades, is dated February 22, 2005 – the same date that the Coast Guard 

actually renewed Respondent’s legitimate and authorized 100 GRT license. (CG Ex. 2). 

Throughout the hearing Respondent suggested that the counterfeit credential was 

authentic and speculated that the Coast Guard must have lost the records of his purported 

upgrade during Hurricane Katrina. The Coast Guard offered evidence and testimony that 

the Coast Guard fully recovered Respondent’s entire file after the storm. (CG Ex. 1; Tr. 

146-147). 

There was also strong circumstantial evidence that Respondent never applied for a 

200 GRT license that would have authorized him to lawfully operate the UTV MARIE 

M. MORGAN. For instance, there was credible testimony that Respondent went to great 

lengths to convince his former employer, Bayou Tugs, Inc., that a 200 GRT license was 

unnecessary and that his 100 GRT license was sufficient to operate the UTV MARIE M. 

MORGAN, per an interpretation of Navigational Vessel Inspection Circular (NVIC) 4-

01. (Tr. 191). 

 It is counterintuitive that Respondent would have tried to obtain employment 

with an inferior license by relying on a perceived loophole in the NVIC 4-01 if he 

actually held sufficient credentials – specifically the purported 200 GRT license which he 

presented to the Coast Guard. Query: Why would Respondent assert that NVIC 4-01 

17
permitted him to work with a 100 GRT license as he did on September 24, 2007, if he 

actually held a properly endorsed 200 GRT license? 

The great weight of the evidence presented at hearing establishes by a 

preponderance that Respondent did not possess sufficient credentials to operate the UTV 

MARIE M. MORGAN as he did on September 24, 2007 and thereby violated 46 CFR 

15.910(a) Therefore Respondent committed Misconduct by violating this duly established 

rule while acting under the authority of his authentic Coast Guard license. Count 1 is 

found PROVED. 

2. Possession and Use of Counterfeit License 

In the Amended Complaint, the Coast Guard alleged that on September 24, 2007, 

Respondent unlawfully possessed a counterfeit Coast Guard license issued in his name 

while onboard the UTV MARIE M. MORGAN and argued that by doing so he violated 

18 U.S.C. 2197. 

18 U.S.C. 2197, is a federal statute, which prohibits a variety of acts, 

including: 

Whoever, not being lawfully entitled thereto, uses, exhibits, or 

attempts to use or exhibit, or, with intent unlawfully to use the 

same, receives or possesses any certificate, license, or document 

issued to vessels, or officers or seamen by any officer or employee 

of the United States authorized by law to issue the same; or 

Whoever, without authority, alters or attempts to alter any such 

certificate, license, or document by addition, interpolation, 

deletion, or erasure; or 

Whoever forges, counterfeits, or steals, or attempts to forge, 

counterfeit, or steal, any such certificate, license, or document; 

or unlawfully possesses or knowingly uses any such altered, 

changed, forged, counterfeit, or stolen certificate, license, or 

document; or 

18
Whoever, without authority, prints or manufactures any blank form 

of such certificate, license, or document, or 

Whoever possesses without lawful excuse, and with intent 

unlawfully to use the same, any blank form of such certificate, 

license, or document; or 

Whoever, in any manner, transfers or negotiates such transfer of, 

any blank form of such certificate, license, or document, or any 

such altered, forged, counterfeit, or stolen certificate, license, 

or document, or any such certificate, license, or document to which 

the party transferring or receiving the same is not lawfully 

entitled. 

 

(emphasis added). 

The parties are in agreement that on September 24, 2007 Respondent possessed 

and presented to the Coast Guard a purported 200 GRT license, serial number 1114246, 

“issue number 3,” dated 22 February 2005, and bearing a radar endorsement on the 

reverse side dated 30 May 2007. (CG Ex. 2; Tr. 66-67). As previously discussed, 

Respondent was only entitled to carry 100 GRT license with no towing designations or 

radar endorsements and was not authorized to carry a 200 GRT license with purported 

radar and towing endorsements. 

 The outcome of this charge depends upon the authenticity of the purported 

document that Respondent possessed and presented to the Coast Guard on September 24, 

2007. 

The Coast Guard presented compelling evidence and testimony that the purported 

200 GRT license was a forgery, a counterfeit. Coast Guard witness Lt. Luff was the 

Coast Guard investigator who interviewed Respondent on September 24, 2007 and 

thereafter. At the hearing Lt. Luff testified that upon receipt of Respondent’s purported 

license, he noted a discrepancy between the 200 GRT license that Respondent presented 

19
and the 100 GRT, “issue number 2” license, which Coast Guard records reflect 

Respondent was entitled to. (Tr. 47-48). Moreover, Lt Luff noted that Coast Guard 

records did not reflect that Respondent’s 100 GRT license (which, incidentally, was also

dated 22 February 2005) included the radar endorsement displayed on the reverse side of 

the questioned license. (Tr. 47). Lt. Luff testified that based upon his cursory evaluation 

of Respondent’s purported license vis a vis Coast Guard records, he believed the 

document to be a forgery. (CG Ex. 2; Tr. 48-49). 

Pursuant to the Administrative Law Judge’s direction, the Coast Guard submitted 

the Respondent’s questioned license to Mr. George Virgin, Forensic Document 

Examiner, U.S. Department of Homeland Security. Mr. Virgin produced a report of his 

evaluation of the Respondent’s license and the same was admitted into evidence. (CG 

Ex. 9). 

Mr. Virgin’s report, and his subsequent testimony at the hearing, revealed that the 

questioned license was indeed a forgery. (Tr. 117). Mr. Virgin, who was qualified as an 

expert in questioned document evaluation, elaborated on how he formulated his 

conclusion and testified why the questioned license was not authentic. (Tr. 117-131). 

The undersigned found Mr. Virgin’s testimony to be compelling and highly 

persuasive; particularly regarding the procedure and elements inherent to the creation of 

an authentic Coast Guard mariner’s license. 

Mr. Virgin testified that the process begins at the Federal Bureau of Engraving 

and Printing (“FBEP”). (Tr. 123). The FBEP creates blank license templates on special 

and unique paper stock. The FBEP then pre-prints that stock with individual serial 

numbers; various printed designs and patterns around the border of the document; the text 

20
“United States Coast Guard;” and several other designs and security features, including 

microline printing. (Tr. 117-120). The FBEP uses a unique offset lithography type 

printing when generating these blank license templates. (Tr. 118). Mr. Virgin further 

testified that after the FBEP completes the offset lithograph type printing, those license 

templates are then sent in batches to the various Coast Guard Regional Exam Centers 

(“REC”) for further processing. 

Mr. Virgin testified that employees at the Coast Guard RECs later convert these 

blank templates into official Coast Guard licenses. The REC then generates a unique 

individual license for a given mariner by loading the blank FBEP template into a blackink laser printer to add the mariner’s name and other pertinent information. Therefore, an 

authentic Coast Guard license would necessarily be made with the FBEP special paper 

stock, bearing various designs and wording printed with offset lithograph type printing 

technology – then locally detailed using black laser ink technology. 

Mr. Virgin specifically noted that the Respondent’s purported license was printed 

entirely with a color ink jet printer on standard printer paper. (Tr. 117). Notably, the 

markings which should have been printed with special offset lithograph technology were 

printed with only color ink jet printing technology on the questioned document. 

Mr. Virgin also testified that the questioned license lacked a “letter press printed 

serial number” and that the serial number on the questioned document had also been 

created by a color ink jet printer. (Tr. 117). Mr. Virgin further noted that genuine Coast 

Guard licenses contain microline printing in several key areas, which the license in 

question lacks. (Tr. 118). Mr. Virgin testified that even the signature on the front of the 

questioned license (ostensibly that of a “B.A. Cordero”) was printed using ink jet 

21
technology and was not created by a writing instrument, such as a hand-held pen. (Tr. 

118-122). 

Coast Guard witness Mr. Wells, director of the New Orleans REC, testified as an 

expert in Coast Guard licensing procedure and testified that the New Orleans REC never 

possessed or used color ink-jet printers and that the REC can only print in black ink using 

a laser printer. (Tr. 144). 

There was other considerable evidence supporting the conclusion that the 

questioned document was a counterfeit. For instance, the questioned license displayed a 

radar endorsement on the reverse side. Mr. Wells testified that the Coast Guard stopped 

printing radar endorsements on the reverse sides of such documents in 2002. (Tr. 140). 

It is additionally instructive that Lt. John Luff also testified that after 2002, the 

Coast Guard no longer printed radar endorsements on the reverse side of mariner’s 

licenses and that radar endorsements are separate documents, distinct and apart from the 

Mariner’s License. (Tr. 54). This, in stark contrast to Respondent’s purported license 

which shows a reverse-side radar endorsement dated 2007. 

Respondent admitted that, apart from the alleged endorsement on the reverse side 

of the document in question, he never possessed or was issued a separate radar 

endorsement from the Coast Guard. (Tr. 254). 

 Of great interest in this case are the discrepancies between the purported 200 

GRT license that Respondent submitted to his employer on September 17, 2007 and the 

200 GRT license recovered by the Coast Guard only one week later. 

Mr. Sean Naquin of Bayou Tugs, Inc. testified that on or about September 17, 

2007, the Respondent applied for a job with Mr. Naquin’s company. Mr. Naquin testified 

22
that as part of Respondent’s job application, the Respondent produced copies of both the 

front and back sides of his purported 200 GRT mariner’s license. Mr. Naquin testified 

that when he received Respondent’s license, there was NO radar endorsement typed or 

printed on the reverse side of the document. (Tr. 184). An examination of CG Ex. 3, p. 

5-6 plainly reveals the absence of a radar endorsement on the reverse side of the 

questioned license as that document appeared on September 17, 2007. 

The undersigned then compared CG Ex. 3, p. 5-6 to CG Ex 2 is the document 

recovered from the Respondent on September 24, 2007. It plainly shows a radar 

endorsement dated 30 May 2007. The undersigned notes that the May 30, 2007 date is 

nearly four months before the same document was e-mailed to Mr. Naquin without a 

radar endorsement. The radar endorsement was absent from the document sent to Mr. 

Naquin. 

Clearly, the forged Mariner’s License at issue had been altered from the time 

Respondent applied for a job with Bayou Tugs on September 17, 2007 to the time he 

presented the document to Coast Guard investigators on September 24 2007. Moreover, 

the alteration was done in a manner wholly inconsistent with current Coast Guard 

practice regarding radar endorsements. (TR 140). 

Most damning to Respondent’s case is that the controverted radar endorsement on 

the license at issue bears the signature of a “Jessie Bilbo” and is dated “30 May 2007.” 

Per the testimony of the New Orleans REC director, Mr. Richard Wells, the very same 

Jessie Bilbo retired from the Coast Guard in December, 2006—and could NOT have 

signed or issued the radar endorsement in May 2007. (TR 141). 

23
The undersigned notes that the Coast Guard need not prove who forged the 

document or who altered the document, only that it was a counterfeit and/or the 

Respondent used the document in its forged or adulterated condition. See Appeal 

Decision No. 2346 (WILLIAMS) (1984). 

It is abundantly clear from the evidence and testimony that the questioned 

document was entirely counterfeit. Furthermore and as previously discussed, Respondent 

was only entitled to carry a 100 GRT license and he therefore knew or should have 

known the purported 200 GRT license bearing unauthorized upgrades was a counterfeit. 

The weight of the evidence presented at hearing establishes by a preponderance 

that the purported license Respondent offered to the Coast Guard on September 24, 2007 

was a counterfeit and that Respondent thereby violated 18 U.S.C. 2197. Therefore 

Respondent committed Misconduct by violating this duly established rule while acting 

under the authority of his authentic Coast Guard license. Count 2 is found PROVED. 

3. False Statements to Coast Guard Investigators 

In the Amended Complaint, the Coast Guard alleged that on September 24, 2007 

while onboard the UTV MARIE M. MORGAN, Respondent told a U.S.C.G. 

Investigating Officer from MSU Morgan City, LA that the counterfeit license in his 

possession was issued to him by the Coast Guard. The Coast Guard alleged that 

statement to be false and argues that Respondent violated 18 U.S.C. 1001(a) by making 

such a statement. 

18 U.S.C. 1001(a) provides in relevant part: “whoever . . . knowingly and 

willfully . . . makes any materially false, fictitious, or fraudulent statement or 

representation; or . . . uses any false writing or document knowing the same to contain 

24
any materially false, fictitious, or fraudulent statement or entry shall be fined or 

imprisoned.” 

As previously discussed, the weight of the evidence clearly establishes that 

Respondent was only entitled to carry a 100 GRT license and that the 200 GRT license in 

question was a counterfeit. Respondent made affirmative representations that he was 

entitled to the credentials displayed on the counterfeit license during the Coast Guard 

investigation. He used the counterfeit license when he applied for a job with Bayou 

Tugs, Inc. Thus, proof of his Misconduct turns on whether the Respondent knowingly 

made materially false statements or knowingly used or possessed a false document. 

 The undersigned rejects the suggestion that the counterfeit license came from the 

Coast Guard. There is extensive evidence that the document and its purported upgrades 

were forged. To believe that the counterfeit license came from the Coast Guard would 

require cognizable proof, beyond mere suggestion or conjecture, that a rogue employee 

generated an obviously false license, was personally motivated to sabotage the 

Respondent, and then sent him a counterfeit license bearing improper upgrades. 

Respondent is presumed to know that he was only entitled to carry a 100 GRT 

license. As an intelligent and experienced mariner, he is appropriately versed in Coast 

Guard licensing procedures. It is improbable that the Respondent actually believed the 

affirmations he made to Bayou Tugs, Inc. and to the Coast Guard investigators regarding 

the validity of the illegitimate 200 GRT license. 

The weight of the evidence presented at hearing establishes by a preponderance 

that Respondent violated 18 U.S.C. 1001(a) by knowingly and willfully making 

materially false, fictitious, or fraudulent statements to the Coast Guard during an ongoing 

25
investigation. Furthermore, the weight of the evidence presenting at hearing also 

establishes by a preponderance that Respondent also violated 18 U.S.C. 1001(a) by 

making use of a false writing or document knowing the same contained materially false, 

fictitious, or fraudulent statements or entries when he presented the counterfeit license to 

Bayou Tugs, Inc. and to the Coast Guard on September 24, 2007. Therefore Respondent 

committed Misconduct by violating this duly established rule while acting under the 

authority of his authentic Coast Guard license. Count 3 is found PROVED. 

E. Respondent’s Affirmative Defenses

Respondent essentially asserts two alternative affirmative defenses. The first 

affirmative defense is in regard to the first count of Misconduct. Respondent argues that 

his properly-issued 100 GRT license was sufficient under NVIC 4-01. 

Respondent’s second affirmative defense is in regard to Counts 2 and 3. 

Respondent essentially argues that the counterfeit license was sent to him by the Coast 

Guard, or an employee thereof, and that he should not be held accountable for using it or 

making false statements related to the document if the license is a forgery. 

 Both of Respondent’s affirmative defenses are rejected as discussed below. 

1. Reliance on NVIC 4-01

NVICs are not controlling legal authority but are, instead, merely advisory in 

nature and serve as guidance regarding implementation of statutory or regulatory law. 

See Queen of Hearts Cruises v. U.S., WL 195298 S.D.N.Y. (1999).

Here, NVIC 4-01 is Navigation and Vessel Inspection Circular No. 4-01, issued 

by the U.S. Department of Transportation as COMDTPUB 16700.4 and dated May 21, 

2001. The “subject” of the circular is “Licensing and Manning for Officers of Towing 

26
Vessels.” A copy of the regulation was admitted as Respondent’s Exhibit A, of which the 

undersigned took judicial notice. 

Respondent argues that at the time he applied for work with Bayou Tugs and at 

the time of the September 24, 2007 grounding, he was “operating within the scope of 

NVIC 4-01” in that: 

The NVIC 4-01, dated May 21, 2001 entered into evidence as 

Respondents exhibit A, on page nine (9), (1),(d), in very plain 

English state, ‘between May 20, 2001 and May 21, 2006, and 

BEFORE any license transaction during this period, any of the 

following licenses will serve as adequate evidence on a vessel 

operating within the limitations of their faces.’ And then down to 

paragraph (d), it states ‘Master of inspected self-propelled vessels 

within any restriction on the license (issued before May 21, 2001)’ 

the Respondent was issued a one hundred ton license on August 1, 

2000 by the Regional Exam Center, NOLA and according to Lt 

Luff’s testimony, was renewed in February 2005 and is shown on 

the U.S.C.G computer as valid today. [sic] 

See Graves, written closing arguments @ 3. 

When Respondent applied for a job with Mr. Naquin and Bayou Tugs, Inc., see 

supra, he asserted that NVIC 4-01 created a “loophole” that allowed him to work for 

Bayou Tugs without possessing a 200 GRT license with the appropriate endorsements. 

(Tr. 191).

Respondent’s argument that NVIC 4-01 fails for three reasons. 

First, NVIC 4-01 is not controlling legal authority and does NOT supersede 46 

CFR 15.805(a)(5) or 15.810(d). 

Second, I note that NVIC 4-01 defines the time period of “Between May 20, 2001 

and May 21, 2006” as the applicable life-span of the circular. The incident at issue 

occurred on September 24, 2007, more than a year beyond the effective dates of the 

27
circular. Respondent received the second issue of his 100 GRT license after May 21, 

2006. Hence, even if the NVIC 4-01 was controlling legal authority, Respondent’s 

second-issue license AND the events of September 24, 2007 fall outside the circular’s 

effective dates. 

Third, assuming that Respondent genuinely believed that NVIC 4-01 relieved him 

of the need to possess a 200 GRT license, then why did he apply for one or have one in 

his possession on September 17, 2007 (the day he applied for a job with Bayou Tugs) or 

September 24, 2007 (the day of the grounding)? Conversely, if the Respondent possessed 

a legitimate 200 GRT license on September 17, 2007, why did he feel the need to rely 

upon the NVIC 4-01 when he applied for the job with Bayou Tugs, Inc.? Finally, if 

Respondent had possessed a legitimate 200 GRT license since February 22, 2005 (See

CG Ex. 2) why did he affirmatively defend, here, that NVIC 4-01 relieved him of the 

obligation to hold a 200 GRT license? 

2. Mistake of Fact

Respondent’s second affirmative defense is that he was relying on what he 

believed to be an authentic Coast Guard license and that he believed the Coast Guard sent 

him this license. This argument is analogous to a mistake of fact defense in a criminal 

prosecution. Even though the instant proceedings are remedial and not criminal in 

nature, the framework for a legal analysis of a defense based upon a “mistake” is helpful 

here. 

The essence of this defense is that in a criminal proceeding, an accused might 

assert a “mistake of fact” defense where the mistake negates the existence of a mental 

state essential to a material element of the offence. Com. v. Lopez, 745 N.E.2d 961 

28
(2001). This defense is not available, however, where the mistake arises from the 

defendant’s own negligence or deliberate ignorance. See US v. Gaines, 690 F2d 849 

(11th Cir. 1982); People v. Dillard, 201 Cal. Rptr 136 (1984). Instead, the mistake must 

have been both honest and reasonable and the conduct of others will only be considered 

to the extent that it contributes to the defendant’s mistaken belief. The validity of this 

defense, here, turns on whether Respondent was in fact mistaken and the extent to which 

his mistake was objectively reasonable. 

The facts adduced at the hearing reveal that on January 10, 2005, Respondent sent 

a letter to the REC asking how to upgrade his license to 200 GRT. (CG Ex. 1 p. 27). 

Further, in February, 2005, Respondent was working in the waters off of Brazil and that 

he made a brief return to the United States. (Tr. 242-243). 

Respondent testified that on or about February 18, 2005, he presented himself to 

the New Orleans REC for the expressed purpose of applying for a 200 GRT license. (Tr. 

255-261). He testified that he paid, by check, the $140.00 fee for processing his 

application for the 200 GRT license. (Tr. 260, 262). It is noteworthy that the Respondent 

could not produce any evidence of a check written by him to the New Orleans REC in 

February 2005. (Tr. 260-261). While it is true that documents from Respondent’s file 

reveal his presence at the New Orleans REC on or about between February 18 and 22, 

2005, it appears that he presented himself to be fingerprinted as part of the “Renewal 

License/MMD” process and not for the purpose of obtaining a 200 GRT license. (CG 

Ex. 1, p. 34-38). 

The undersigned notes that the counterfeit 200 GRT license bore an issue date of 

February 22, 2005. That is only four days from when Respondent claims that he applied 

29
for the upgraded license on February 18, 2005. REC director Richard Wells testified it 

takes between two and six months from the time a mariner applies for a 200 GRT 

upgrade to the time when he or she actually receives the upgraded license. (Tr. 195-196). 

It is a practical impossibility that Respondent applied for a 200 GRT upgrade on or about 

February 18, 2005, and that the Coast Guard issued it only four days later on February 

22, 2005. 

What is more likely is that Respondent applied for a renewal of his existing 100 

GRT license on or about January 18, 2005. The evidence clearly reflects that Respondent 

applied for a renewal of his 100 GRT license and paid that entity $140.00 with a personal 

check on January 18, 2005 -- not February 18, 2005. (CG Ex. 1, p. 39). Indeed, 

Respondent admitted that the only evidence of a check written to the New Orleans REC 

is dated January 18, 2005. (Tr. 260). 

Also suspicious is the entry pertaining to “issue date” on Respondent’s 100 GRT 

renewal application. The Coast Guard issuing official entered “2.22.05” as the issuing 

date for Respondent’s 100 GRT renewal. (CG Ex. 1, p. 5, 8). This is the exact same 

issue date displayed on the counterfeit 200 GRT license at issue in this case. 

Furthermore, Respondent’s REC file, contained at CG Ex. 1, contains NO 

indication that he ever filed an application or paid a fee for a 200 GRT license (Tr. 150-

151) despite his testimony that he had paid an application fee for a 200 GRT license, by 

check, in February 2005. (Tr. 258). 

Respondent’s REC records also do not reflect either a Coast Guard-issued test for 

a 200 GRT license or that Respondent had taken the Coast Guard-required courses which 

can serve in lieu of the test as preconditions to the issuance of a 200 GRT license. In 

30
fact, Respondent’s own January 10, 2005 letter to the REC (CG Ex. 1, p. 27) indicates the 

Respondent was unaware of the needed prerequisites to obtain a 200 GRT license. This 

undercuts the notion that the Respondent had gathered and submitted sufficient 

documentation in time to be granted a 200 GRT upgrade on February 22, 2005. 

To reiterate: Respondent testified that in February, 2005, he had paid for his 200 

GRT application with a personal check. (Tr. 258). At the conclusion of the hearing, the 

undersigned specifically asked Respondent to contact his bank to obtain a copy of that 

check that he supposedly wrote to the Coast Guard in early February, 2005 for the 200 

GRT license. (Tr. 261). 

Despite the undersigned’s request, Respondent produced no other documents that 

might substantiate a claim that he ever applied or paid for a 200 GRT license or that he 

ever wrote a check in any amount for any purpose in February 2005. 

As previously discussed, Respondent argues that during Hurricane Katrina, 

thousands of mariner’s records normally maintained at the New Orleans REC were lost. 

He argues that even though his file was located and restored during the recovery process, 

several key documents -- those related to his 200 GRT upgrade -- were lost. The 

undersigned finds it odd that only those documents pertaining to his alleged 200 GRT 

upgrade, and no others, are missing from CG Ex. 1. The “Katrina” argument is entirely 

too convenient to be persuasive. 

Curiously, Respondent testified that he did not personally maintain or possess any 

documents pertaining to his application for the 200 GRT license. He further testified that 

he never maintained copies of ANY applications for ANY Coast Guard licenses. (Tr. 

254, 255). The undersigned finds this odd, inasmuch as a reasonable person would 

31
maintain any and all communications, documents, copies, etc., which relate to one’s 

professional licensure and livelihood. 

Respondent’s testimony (Tr. 257) and his closing argument suggests that he had 

an unfortunate confrontation with an REC employee and speculated that the disgruntled 

REC employee might have created and mailed the counterfeit license to Respondent in 

reprisal for the unhappy encounter. 

There is no evidence that proves a conspiratorial effort on the part of a disgruntled 

REC employee beyond Respondent’s suggestions. Respondent did provide 

circumstantial information from a source not party to the instant proceedings that suggest 

a history of poor internal practices and strained customer relations between REC staffers 

and the maritime public. Assuming, arguendo, that these allegations may be true: It is 

too great of a stretch to connect these vague allegations with any specific evidence that 

has probative bearing on these proceedings. Anecdotes of poor customer relations may 

be true and, perhaps, are worthy of investigation, but the undersigned Administrative 

Law Judge is not thusly empowered to carry out this task. The “evidence” of a 

conspiracy is too tangential to the issues at bar to be of value here. 

All of the above-mentioned factual determinations and analysis render it highly 

unlikely that Respondent, who demonstrated that he is intelligent and knowledgeable as 

to Coast Guard licensing procedure, could have actually believed that the counterfeit 

license was authentic or that the Coast Guard issued this license to him. 

Even if Respondent actually and honestly believed these facts, this mistake would 

be far from reasonable. On the contrary, there exists a substantial body of proof that 

Respondent was never entitled to the upgraded license, was never issued said license, and 

32
never even applied for these upgrades. These facts, together with the fact that the 

purported 200 GRT license was such an obvious counterfeit, make it wholly 

unreasonable for anyone (not to mention an experienced mariner such as Respondent) to 

believe that the license was authentic or issued by the Coast Guard. 

Respondent’s mistake of fact defense is therefore rejected because the alleged 

mistake of fact was neither honest nor reasonable. 

VI. SANCTION 

The selection of an appropriate sanction is the responsibility of the ALJ, per 46 

CFR 5.569(a). As discussed above, Respondent committed three distinct acts of 

Misconduct while acting under the authority of his document by operating the UTV 

MARIE M. MORGAN without sufficient credentials; by possessing and using a 

counterfeit Coast Guard license; and by making materially false statements to Coast 

Guard investigators during an ongoing investigation. 

The Amended Complaint seeks revocation of the Respondent’s Mariner’s License 

and Documents per 46 U.S.C. 7703. That Code section provides in relevant part: 

A license, certificate of registry, or merchant mariner's document issued by the 

Secretary may be suspended or revoked if the holder - 

(1) When acting under the authority of that license, certificate, or 

document 

(A) has violated or fails to comply with this subtitle, a regulation 

prescribed under this subtitle, or any other law or regulation 

intended to promote marine safety or to protect navigable waters. 

(emphasis added) 

Respondent argues that revocation is only appropriate if the he has committed one of the 

eleven enumerated acts listed in 46 CFR 5.61(a). However, Respondent fails to note (b) of the 

33
same regulation which provides that an investigating officer may seek revocation of a 

respondent’s license, certificate or document: 

when the circumstances of an act or offense found proved or 

circumstances of the respondent’s prior record indicates that permitting 

such person to serve under the license, certificate or document would be 

clearly a threat to the safety of life or property, or detrimental to good 

discipline. 

 In its post-hearing submission, the Coast Guard cites Appeal Decision No. 2346

(WILLIAMS) (1984), for the proposition that revocation is the appropriate sanction in a case 

involving forgery or alteration of a mariner’s document. In Williams, the Commandant 

approved revocation as a sanction for a mariner’s falsification of an endorsement on his MML, 

saying: 

A person with a false endorsement on his document may be placed 

in a critical position aboard ship, although he is, in reality, 

unqualified. The entire ship and crew could well be endangered by 

such a person. Because of the serious threat to safety posed by 

alteration of documents, I believe revocation is appropriate. 

Williams at 2. 

Williams, a 1984 decision, was followed by a pronouncement from a superior 

appellate body, the NTSB, in Coast Guard v. Moore, NTSB Order No. EM-201 (2005). 

There, in an action brought against a mariner for misconduct (refusal to submit to a drug 

test), the NTSB disapproved of a license revocation order because the Coast Guard 

neither proved, nor did the ALJ find, specific factors in aggravation sufficient to depart 

from the guidance provided in 46 CFR Table 5.569. The NTSB clearly explained that the 

guidance contained in the Table is “for the information and guidance of Administrative 

Law Judges and is intended to promote uniformity in orders rendered.” 

34
While it is true that 46 CFR 5.569(d) ALSO says: This table should not affect the 

fair and impartial adjudication of each case on its individual facts and merits, it is not 

for the undersigned to speculate what those individual aggravating facts and merits are 

relative to this Respondent, absent some proof. 

With the exception of Misconduct for wrongful possession, use, sale, or 

association with dangerous drugs, revocation is not a mandatory sanction for Misconduct. 

Allen v. Shae, NTSB Order No. EM-204 (2008). In determining whether revocation is 

the appropriate sanction for offenses for which revocation is not mandatory, an ALJ 

should consider: any remedial actions undertaken by the respondent; respondent’s prior 

records; and evidence of mitigation or aggravation. See 46 CFR 5.569(b)(1)-(3). 

Remedial Action: Respondent did not provide any evidence of any independent, remedial 

action undertaken by him which might mitigate the sanction here imposed. See 33 CFR 

5.569(b)(1). 

Respondent’s Prior Records: The undersigned does note that the Respondent did 

lawfully have a 100 GRT license which had never been the subject of previous disciplinary 

action. See 33 CFR 5.569(b)(2). 

Mitigation or Aggravation: By way of mitigation, Respondent’s evidence and witnesses 

indicated he is a man of generally good character and is an able and experienced seaman. (Tr. 

233-238); See, 33 CFR 5.569(b)(3). 

It is incumbent upon the Coast Guard to prove matters in aggravation if it desires 

revocation. Here, the Coast Guard did not present any matters in aggravation that would 

support revocation. The Coast Guard might have presented expert testimony from an 

experienced master or a safety investigator to explain how Respondent’s conduct posed a 

35
threat to life, property or good discipline, but it did not. The Coast Guard provided no 

evidence, beyond mere speculation, regarding the threat Respondent may pose to the 

safety of life or property on the waterways. See 33 CFR 5.569(b)(3). 

Therefore, absent evidence in either aggravation or mitigation, I am constrained by the 

guidance contained in 46 CFR 5.569 and its attendant table. There the suggested range of 

appropriate orders suggests a suspension for 1-3 months for misconduct; occasioned by a 

respondent’s failure to comply with US laws or regulations. 

The Coast Guard has proved that the Respondent did operate a vessel in violation 

of 46 CFR 15.805(a)(5) and 15.810(d). The table indicates that this particular act of 

misconduct warrants a suspension of up to three months. 

Also, the Coast Guard has proved that the Respondent possessed and used a 

forged mariner’s document. The table indicates that this unique act of misconduct also 

warrants an additional suspension of up to three months. 

Likewise, the Coast Guard has proved that the Respondent knowingly made 

materially false statements to Coast Guard investigators regarding that document. Again, 

the table indicates that this unique act of misconduct warrants an additional suspension of 

up to three months. 

Proof of the underlying infractions, however, does not constitute proof of 

aggravation. They are separate and distinct burdens borne by the Coast Guard. 

Intuitively, all of the charges found proved are serious and relate directly to safety 

on the waterways. The charges are unique and not multiplicious. A distinct societal and 

maritime interest is served by a sanction for each. Here, Respondent served in a critical 

position aboard the vessel, although he was unqualified to do so. If it were not for an 

36
accidental grounding, it is likely that Respondent would have continued to operate 

beyond the scope of his expertise, thus risking safety on the waterways. The mendacity 

reflected in his use of a forged mariner’s document, together with his false statements to 

investigators, weigh in favor of a more severe penalty vice the recommendations 

contained in Table 5.569. However, absent proof of independent aggravating factors

offered by the Coast Guard and absent more stringent regulatory sanctions, I am 

constrained by the guidelines contained in Table 5.569. Therefore, a suspension of three 

months apiece for each of the three proved infractions is the very least I can impose and 

the very most the law seems to allow. 

WHEREFORE, 

VII. ORDER

IT IS HEREBY ORDERED THAT all elements of the Complaint filed against 

James David Graves on September 27, 2007 and amended on November 13, 2007 are 

found PROVED. 

IT IS FURTHER ORDERED THAT the Merchant Mariner’s Documents, 

Merchant Mariner’s Licenses, and all other credentials issued by the U.S. Coast Guard to 

James David Graves are SUSPENDED OUTRIGHT for NINE (9) months commencing 

on the date they are in the possession of the Coast Guard. This will be followed by a 

suspension of twelve (12) months stayed on twelve (12) months probation. 

IT IS FURTHER ORDERED THAT James David Graves is to tender his valid 

Merchant Mariner’s Documents, Merchant Mariner’s Licenses, and all other credential 

issued by the Coast Guard immediately to the nearest Coast Guard Marine Safety Office 

37
or mail those credentials to the following office: Marine Safety Unit Morgan City, 800 

David Drive, Room 232, Morgan City, LA 70380. 

IT IS FURTHER ORDERED THAT James David Graves is hereby prohibited 

from serving aboard any vessel requiring a Merchant Mariner’s Document or Merchant 

Mariner’s License issued by the U.S. Coast Guard until the suspension described herein 

is served in full. 

PLEASE TAKE NOTE that issuance of this Decision and Order serves as the 

parties’ right to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart J is provided 

as Attachment B. 

Done and dated this ____ of June, 2008 at 

New Orleans, LA 

______________________________ 

 Honorable Bruce T. Smith 

 Administrative Law Judge 

 United States Coast Guard 

38
ATTACHMENT A - LIST OF WITNESSES AND EXHIBITS

I. Coast Guard’s Exhibits. IO Ex. 1 through IO Ex. 9.

1. Purported 200 GRT Coast Guard License. 

2. Excerpt from Coast Guard’s record of Respondent’s license file. 

3. September 25, 2007 email from Sean Naquin to Lt. John Luff, with attachments. 

4. Document entitled Application for Employment for Bayou Tugs, Inc. 

5. Certificate of Documentation for UTV MARIE M. MORGAN. 

8. Curriculum Vitae of George Virgin. 

9. December 27, 2007 letter from George Virgin to Richard Wells. 

II. Respondent’s Exhibits. R Ex. A through R Ex. C. 

A. Navigation Vessel Information Circular 4-01. 

B. Report of Marine Accident Injury or Death. 

C. Report of Marine Accident Injury or Death. 

III. Judge’s Exhibit. 

1. March 19, 2008 email from Richard Block to Hon. Bruce T. Smith. 

IV. Coast Guard’s Witnesses 

1. Boatswain Mate 1 Stuart Stryker 

2. Coast Guard Lt. John Luff 

3. Richard Wells 

4. George Virgin 

5. Sean Naquin 

6. Jesse Pierre 

7. Marcus Broussard 

V. Respondent’s Witnesses 

1. Coast Guard Lt. John Luff 

2. Jim Wilson 

3. Daniel Wray 

4. Mary Jane Graves 

5. James David Graves 

39
 ATTACHMENT B – SUBPART J, APPEALS

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The 

party shall file the notice with the U. S. Coast Guard Administrative Law 

Judge Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. 

Gay Street; Baltimore, MD 21201-4022. The party shall file the notice 30 

days or less after issuance of the decision, and shall serve a copy of it on the 

other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, 

and public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that 

no hearing was held or that in the issuance of the decision the ALJ did not 

consider evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If Respondent requests a copy of the transcript of the hearing as part of the 

record of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will 

provide the transcript on payment of the fees prescribed in 49 CFR 

7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief 

with the Commandant at the following address: U.S. Coast Guard 

Administrative Law Judge Docketing Center; Attention: Hearing Docket 

Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022, and shall 

serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to 

the decision or ruling. The brief must set forth, in detail, the -- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

40
(2) When the appellant relies on material contained in the record, the 

appellate brief must specifically refer to the pertinent parts of the 

record. 

(3) The appellate brief must reach the Docketing Center 60 days or less 

after service of the ALJ's decision. Unless filed within this time, or 

within another time period authorized in writing by the Docketing 

Center, the brief will be untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less 

after service of the appellate brief. Each such party shall serve a copy on every 

other party. If the party filing the reply brief relies on evidence contained in 

the record for the appeal, that brief must specifically refer to the pertinent 

parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event 

the Commandant will allow a reasonable time for the party to file that 

brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an 

appeal of an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the 

ALJ committed error in the proceedings, and whether the Commandant should 

affirm, modify, or reverse the ALJ's decision or should remand the case for 

further proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall 

serve a copy of the decision on each party and interested person. 

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Certificate of Service

 I hereby certify that I have this day served the foregoing document(s) upon the 

following parties and limited participants (or designated representatives) in this 

proceeding at the address indicated by Federal Express: 

LT John R. Luff 

Marine Safety Unit Morgan City 

800 David Drive, Room 232 

Morgan City, LA 70380 

Facsimile: 985-380-5379 

 

I hereby certify that I have this day served the foregoing document(s) upon the 

following parties and limited participants (or designated representatives) in this 

proceeding at the address indicated by Federal Express: 

James David Graves 

[REDACTED]

 

Done and dated this ____ of June, 2008 at 

New Orleans, LA 

 Lauren M. Meus 

 Paralegal Specialist 

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