UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL WAYNE ROBERTSON 

Respondent 

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) 

) DECISION & ORDER 

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Docket Number: 00-0417 

PA Number: 00000435 

____________________________ ) 

BEFORE: THOMAS E. MCELLIGOTT 

Administrative Law Judge 

I 

PRELIMINARY STATEMENT 

At the signing of the "Complaint," the U.S. Coast Guard was represented by 

Investigating Officer Thomas Allen Johnson, at the time stationed at the U.S. Coast 

Guard Marine Safety Unit, U.S. Post Office Building, 601 Rosenberg, Galveston, Texas 

77550. 

At the hearing held on 20 November 2000, in the port of Houston, Texas, the U.S. 

Coast Guard was represented by Investigating Officer Lieutenant Marie Byrd and 

Investigating Officer Thomas A. Johnson, who actually presented the case with guidance 

~y Lieutenant Byrd, both at the time stationed at the same Marine Safety Unit in the port 

of Galveston, Texas. 

This adversary hearing was initiated by the U.S. Coast Guard in the performance 

of its missions to protect lives and properties at sea, enforce national laws and treaties, 

preserve marine natural resources, and/or promote national security interests. It was 

brought pursuant to the legal authority contained in 46 U.S. Code Chapter 77, including 

46 U.S.C. 7701 through 7705; the U.S. Administrative Procedure Act, 5 U.S.C. 551 

through 559; and 46 C.F.R. Part 5. 
Respondent was duly advised of the hearing date when he was served with a 

"Notice of Continuance" and he chose to be absent and not to send anyone to represent 

him at the hearing. Therefore, he was in default. However, the Investigating Officers 

chose to proceed to offer their evidence. 

Respondent filed his fonnal "Answer" to the Investigating Officer's "Complaint" 

on 30 August 2000, at the Administrative Law Judge (ALJ) Docketing Center in 

Baltimore, Maryland. Respondent wrote on his "Answer": "SET A TRIAL DATE AT 

YOUR CONVENIENCE." Respondent Michael Wayne Robertson, born in Baltimore, 

Maryland, on 30 January 1959, is a 41-year-old American Merchant Seaman. 

The Investigating Officer's case included the testimony of three (3) witnesses. 

The first witness was Samir Rashid, Crewman and Able Seaman (AB), from the S.S. 

FAIRBANKS, on board 28 November 1999, while the vessel was in a port in 

Mozambique, southeast Africa. The second witness was Third Assistant Engineer and 

Respondent's Supervisor, Derek Steven Hooper. The third witness was the vessel's 

Captain and Master, Richard Ronald Cunio. The vessel was in Nacala, Mozambique, on 

28 November 1999, in southeast Africa. 

Respondent was duly notified of the hearing date when he was served with the 

"Notice of Continuance," as attested by its attached "Certificate of Service" at 

Respondent's last known residence address: PMB #79, 2705-61 st St., Ste. B, Galveston, 

TX 77551-1866. 

In addition to the three (3) witnesses testifying under oath listed above, the 

Investigating Officer's case included eight (8) exhibits. (See Appendix A, List of 

Witnesses and Exhibits.) 

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II 

FINDINGS OF FACT BASED UPON THE ENTIRE HEARING RECORD 

CONSIDERED AS A WHOLE 

1. At all times herein mentioned and specifically including the date of 

28 November 1999, the Respondent was serving under the authority of his captioned 

U.S. Coast Guard-issued U.S. Merchant Mariner's Document, as an Oiler on board the 

motor vessel known as the S.S. FAIRBANKS, with Vessel Official Number D559400. 

2. Respondent acted under the authority of that Merchant Mariner's Document 

on or about 28 November 1999, by serving as an Oiler in the vessel's engine room 

aboard a vessel, S.S. FAIRBANKS, Vessel Official Number D559400, as required by 

law or regulation. While the vessel was docked in Nacala, Mozambique, the Respondent 

committed wrongful intimidation and assault by verbally communicating a threat to kill 

the Third Assistant Engineer, a violation of vessel and company policy. Respondent 

secondly committed wrongful discrimination by verbally communicating derogative 

racial and ethnic remarks towards fellow crewmembers, a violation of vessel and 

company policy. Thirdly, Respondent wrongfully destroyed vessel property by 

deforming a mortar trowel and breaking a beverage glass during an episode of rage. 

3. The Coast Guard did prove that Respondent did commit wrongful acts of 

misconduct while serving as Oiler on board the S.S. FAIRBANKS, while the vessel was 

in Nacala, Mozambique, on 28 November 1999, in southeast Africa. 

4. The eyewitness testimony proved the Investigating Officer's allegations that 

the Respondent wrongfully intimidated his fellow crewmembers. Respondent also 

appeared to be intoxicated, as evident by the reliable testimony as to his unsteady gate 

and smell of alcohol upon his person, on the date in question. The Master of the S.S. 

FAIRBANKS, Captain Richard Cunio, eventually did receive reports at his request, or 

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after having been directed to do so, from Third Assistant Engineer Derek Hooper and 

Able Seaman Samir Rashid that Respondent did commit these various acts of 

misconduct. Captain Cunio then promptly discharged and dismissed the Respondent 

from employment on board the vessel on 28 November 1999, for numerous wrongful 

violations of company policy, law and regulation. 

5. I find all the witnesses who testified credible, namely, Captain and Master 

Richard Cunio, Third Assistant Engineer Derek S. Hooper, and Crewman and Able 

Seaman Samir Rashid. 

6. There was also admitted into evidence Investigating Officer's Exhibit 2, a 

copy ofthe letter oftermination, issued to the Respondent and dated 28 November 1999, 

signed by the Master ofthe S.S. FAIRBANKS, Captain Richard Cunio. Captain Cunio 

testified that he personally typed up this letter of discharge addressed to the captioned 

Respondent, Michael Wayne Robertson, and either served it on Robertson or had it 

served upon Robertson that same day. He also said that he arranged with the local agent 

for the ship and shipping company to arrange to pay for flight and transportation back 

home to the United States of America, Houston, Texas, for Michael Wayne Robertson, 

since he was being discharged in a foreign port in southeast Africa as a result of his 

misconduct. The Captain entitled his letter of discharge as a "Letter of Termination," 

dated 28 November 1999, to Mr. Michael W. Robertson, listing Michael Robertson's 

Social Security Number, Oiler of the 8- 12 Watch on board the S.S. FAIRBANKS, 

owned or operated at the time by Sabine Transportation Company. The "Letter of 

Termination" stated in relevant part: 

"You are hereby notified in writing that you are guilty of the following offenses 

that constitute cause for immediate discharge. You are being discharged for the 

following causes as per company policy posted in the crew lounge: 

"1. Fighting or attempting bodily injury to another, drunkenness, conduct which 

violates common decency or morality. 

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"2. Intimidating, discriminating, or coercing of one employee by another 

employee or employees, for membership or lack of membership, in any religious 

organization, society, fraternity, or labor organization, or because ofrace, color, 

age, religion, sex, national origin, veteran status, or handicap. 

"3. Insubordination, failure to carry out assigned work or instructions, in a 

reasonable period of time, or defiance of authority. 

"4. Willful neglect in care of use of company's property or equipment. 

"Last month it was reported that while on watch the Third Assistant 

Engineer (Derek S. Hooper) asked you to assist him in his duties. You refused to 

help him. Since this was not a direct order, no action was taken at the time. 

"On 28 November 1999 it was reported that you returned from shore leave 

and entered the mess room and proceeded to yell racial and ethnic connotations 

regarding many of the members of the crew. 

"On 28 November 1999 you threatened to kill the Third Assistant 

Engineer (Derek S. Hooper) while on watch. You also destroyed company 

property in a violent manner. 

"Your wages have been terminated. You will be provided transportation 

to Houston, Texas, In the United States and Re-Patrioted. You will be logged in 

the Official Log book and subsequent reports made to the United States Coast 

Guard." 

This letter was signed and typed Richard R. Cunio, Master. 

III 

ULTIMATE FINDINGS 

1. The Investigating Officer's "Complaint" is found proved by reliable, 

probative and substantial evidence. This includes all jurisdictional allegations and 

factual allegations. 

IV 

CONCLUSIONS OF LAW 

1. The U.S. Coast Guard and the Administrative Law Judge have jurisdiction 

over the subject matter of this hearing under the provisions of 46 U.S. Code Chapter 77, 

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including 46 U.S. Code 7701 through 7705; the U.S. Administrative Procedure Act, 5 

U.S. Code 551 through 559; 33 C.P.R. Part 20 and 33 C.P.R. Part 95. 

2. The "Complaint" and all its allegations are found proved by a preponderance 

of the reliable, probative and substantial evidence. 

v 

OPINION 

The above Preliminary Statement, Findings of Fact and Conclusions are 

incorporated herein as set forth in full. 

46 U.S. Code 7703 is entitled "Bases for suspension or revocation" and states as 

follows: 

"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; or 

"(B) has committed an act of incompetence, misconduct, or 

negligence; 

"(2) is convicted of an offense that would prevent the issuance or renewal 

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

"(3) within the 3-year period preceding the initiation of the suspension or 

revocation proceeding is convicted of an offense described in section 205(a)(3)(A) or 

(B) of the National Driver Register Act of 1982 (23 U.S.C. 401 note)." 

Misconduct is defined in 46 C.P.R. 5.27 as follows: 

'"Misconduct' is human behavior which violates some formal, duly 

established rule. Such rules are found in, among other places, statutes, regulations, the 

common law, the general 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." 

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The factual allegations of misconduct as found in the "Complaint" are found 

proved by reliable, probative and substantial evidence. 

Respondent's actions as alleged and proved amounted to misconduct which 

violated 46 U.S. Code 7703. 

Specific intent to assault need not be proved where the law does not clearly make 

it an element ofthe offense. Parker v. the United States, 359 F.2d 1009. 1012 (D.C. Cir. 

1966); People v. Rocha, 3 Cal. 3d 893, 92 Cal. Rptr. 172,479 P.2d 372 (1971). Intent to 

injure is not an element of assault or battery. Appeal Decision 2452 (MORGANDE) and 

Appeal Decision 2273 (SIL YERMAN). Appeal Decision 2512 (OLIVO) ( 1990), pages 

8 and 9. 

The "Complaint" and its supporting allegations and paragraphs are ruled proved 

and the findings in this matter have been found to be supported by and in accordance with 

a preponderance of the reliable, probative and substantial evidence. Steadman v. SEC, 

450 US 91, 67 L. Ed. 2d 69, 101 S. Ct. 999 (1981); Commandant's Appeal Decision 2468 

(LEWIN); 46 U.S. Code Chapter 77; 5 U.S. Code 556(d); and Title 46 C.P.R. 5.63. 

The Respondent is advised of the right to appeal in accordance with 33 C.F .R. 

Part 20, which is enclosed herein. 

After findings were made upon the record, Respondent's prior record with the 

Coast Guard was inquired into. Respondent's Merchant Marine Personnel Record was 

entered into evidence as Investigating Officer's Exhibit 8, which shows that within the 

last ten (10) years ofhis service in the American Merchant Marines, Respondent has not 

had any other cases proved against him by an Investigating Officer of the U.S. Coast 

Guard. 

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VI 

CONSIDERATION OF A PROPER ORDER OR SANCTION 

Commandant's Appeal Decision 2193 (WATSON) (1980) involved assault and 

battery with use of a weapon and injury to the victim. On appeal to the Commandant, it 

was held that because ofRespondent's-Appellant's previous unblemished record, his 

family situation and the facts surrounding the incident, the Commandant's Appeal 

Decision reduced a revocation order to a 12-month outright suspension. Here, in 

Respondent Michael W. Robertson's case, we have no weapon and no injury, nor even a 

striking or touching of the master. 

We also have the case of Appeal Decision 2452 (MORGANDE) (1987), heard on 

the Pacific Coast, where the Respondent had committed four assaults and batteries on 

four ships, including on a master, on a chief mate, and two others, and the order was 

affirmed on appeal for 18 months' outright suspension and 12 months on 24 months' 

probation. 

Commandant's Appeal Decision 1486 (KNUTSON) states: " ... entries in the 

Official Logbook constitute substantial evidence in support of the offenses alleged since 

the entries were made in substantial compliance with the requirements of 46 U.S. Code 

702." 

It was also well stated in Commandant's Appeal Decision 1473 (NASH): "A 

threat is a declaration of one's purpose or intention to work injury to the person of 

another with a view of restraining such person's freedom of action (Black's Law 

Dictionary). A threat is an avowed present detennination to injure presently or in the 

future, United States v. Metzdorf, 252 Fed. 933 (E.D. Mich. 1918), and even the fact that 

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it is made conditional upon the ability of the defendant to carry it out does not render it 

any the less a threat. United States v. Jasick, 252 Fed. 931 (D. Montana 1918)." 

Black's Law Dictionary, Sixth Edition, gives further infonnation on the definition 

of the word "assault." It defines assault as follows: "Any willful attempt or threat to 

inflict injury upon the person of another, when coupled with an apparent present ability 

so to do, and any intentional display of force such as would give the victim reason to fear 

or expect immediate bodily harm, constitutes an assault. An assault may be committed 

without actually touching, or striking, or doing bodily harm, to the person of another. 

State v. Murphy, 7 Wash. App. 505, 500 P.2d 1276, 1281." Respondent in effect 

assaulted the Third Assistant Engineer by the threat to kill him while the two of them 

were alone in the engine room spaces, while the Third Assistant Engineer was 

Respondent's Supervisor and the Duty Watch Officer. 

VII 

ORDER 

That the captioned Respondent's U.S. Merchant Mariner's Document and all 

other valid licenses and/or documents issued to Respondent by the U.S. Coast Guard and 

now held by the Respondent and valid, be, and the same are hereby suspended 

OUTRIGHT effective immediately on the service hereofupon Respondent of this 

Decision & Order. The said OUTRIGHT suspension shall remain in effect for SIX (6) 

MONTHS after Respondent delivers the valid U.S. Merchant Mariner's Document and 

License, if any, to the nearest U.S. Coast Guard Office, which Respondent is hereby 

directed to do so without delay. Respondent may deliver these documents by hand or by 

mail to the U.S. Coast Guard Marine Safety Office. There is an additional probationary 

period as follows: 

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Respondent's documents are further suspended for an additional SIX (6) 

MONTHS, which additional suspension shall not take effect provided no subsequent 

charge under 46 U.S. Code 7703, 46 U.S. Code 7704, or other navigation or vessel 

inspection law, is later proved against Respondent for acts committed during the 

foregoing period of OUTRIGHT suspension, or for acts committed within SIX (6) 

MONTHS from the date of completion of the said foregoing OUTRIGHT suspension. 

DURING THE FIRST SIX (6) MONTHS, Respondent is to go to Alcoholics 

Anonymous (AA) meetings, at least thirty (30) times in the first thirty (30) days and then 

each month thereafter, for at least two (2) times a week for the next five (5) months. 

Respondent is to file reports establishing that he did attend such meetings by filing a list 

with the date; the meeting or group name; the signature of one member of the group to 

attest to his presence by first name and last initial, so as to keep the other member's name 

anonymous; and the phone number of a witness or organizer or sponsor of the group. 

(See attached "Meeting Attendance Log.") If Respondent fails to file the documents 

showing the proper numbers of attendance, his document will be suspended for a second 

six ( 6) months after the first six ( 6) months. 

If it is later found proved that this probation is violated, the probationary order 

may be added to or fonn a part of an order which is entered by an Administrative Law 

Judge. 

DATED THIS ot'dnAY OF Pe('e)lt bt>Y2000 

HOUSTON, TEXAS 

'2000 

10 

THOMAS E. MC:Ef~ IGOTT 

Administrative LaW Judge 

U.S. Coast Guard