UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

__________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

DENNIS G. CORBELLO, 

Respondent 

___________________________ 

Docket Number: 04-0517 

CG Case No. 2185635 

DECISION AND ORDER 

Issued: March 1, 2006 

Issued by: Thomas E. P. McElligott, Administrative Law Judge

 

Appearance: 

Lt. Ian Bird, Senior Investigating Officer, 

Lt. Ann McSpadden, District Aide and 

First Class Petty Officer and Marine Science Technician Jacqueline Plevniak, 

Investigating Officers 

United States Coast Guard 

Marine Safety Office Port Arthur 

2901 Turtle Creek Drive 

Port Arthur, TX 77642-8056 

For the Coast Guard 

 

Francis J. Gonynor, Esquire 

Captain L. Robert Sadler, Jr. 

Eastham, Watson, Dale & Forney, L.L.P. 

Twentieth Floor 

The Niels Esperson Building 

808 Travis Street 

Houston, TX 77002-5769 

For the Respondent 
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I. PRELIMINARY STATEMENT 

 The United States Coast Guard Investigating Officers (IOs) stationed at the 

Marine Safety Office in Port Arthur, Texas initiated this administrative action and trial-type 

hearing seeking a fifteen month outright suspension and twelve months probation of U.S. Coast 

Guard issued License Number 1049577 issued to Respondent Dennis G. Corbello. This 

administrative action was brought pursuant to the legal authority contained in 46 U.S. Code 

(USC) § 7703 and its underlying regulations codified at 46 Code of Federal Regulations (CFR) 

Part 5. The Coast Guard IOs issued and served personally on Respondent an initial official 

Complaint on October 22, 2004 that charged Respondent Corbello with both Negligence and 

Misconduct, resulting from a collision between the towing vessel, the SAN TOMAS, which 

Respondent Corbello was controlling and navigating, which was pushing the Buffalo Fuel Barge 

405, and the tank ship, the TORM MARY on the Neches River, in East Texas on August 2, 2004 

shortly after midnight. This location is near the USA’s Gulf Coast and port cities of Port Arthur 

and Beaumont, Texas.

The negligence charge against Respondent Corbello was initially supported by one (1) 

factual allegation, which read as follows:

1. The Coast Guard alleges that on 02 August 2004 aboard M/V SAN TOMAS the 

Respondent neglected to properly operate the M/V SAN TOMAS, which resulted in the Buffalo 

Barge 405 alliding with the T/S TORM MARY.

The misconduct charge against Respondent Corbello was supported by one (1) factual 

allegation, which read as follows:

1. The Coast Guard alleges that on 02 August 2004 aboard M/V SAN TOMAS the 

Respondent operated a vessel beyond the limitations set by his Coast Guard issued license. 
3

The Respondent and his captioned attorneys filed an Answer to the Coast Guard’s first 

Complaint in this case in which they admitted all jurisdictional allegations and denied both 

factual allegations. The Respondent’s attorneys also requested a hearing before a U.S. 

Administrative Law Judge. On November 23, 2004, this case was assigned to the undersigned 

judge for the trial-type hearing and adjudication by Decision and Order. 

On December 13, 2004, the Coast Guard filed and served on Respondent’s attorneys its 

first Amended Complaint, which substituted the word “pilot” with the word “master” in the 

jurisdictional allegations, thereby alleging that Respondent served as a master aboard the towing 

vessel SAN TOMAS during these incidents as required by a maritime employer as a condition of 

employment. 

The new Complaint also amended the negligence charge against Respondent Corbello, 

whereby it is supported by two (2) factual allegations, which read as follows:

1. The Coast Guard alleges that on 02 August 2004 aboard M/V SAN TOMAS the 

Respondent failed to take action to avoid collision with T/S TORM MARY in ample time with 

due regard to good seamanship; and

2. Respondent failed to use all available means appropriate to circumstance or condition 

to determine if risk of collision existed. 

On April 6, 2005, the Coast Guard filed and served on Respondent’s attorneys a Second 

Amended Complaint, which substituted the phrase “as required by an employer as a condition of 

employment” with the phrase “as required by law or regulation, 46 CFR 15.805(a)(5)” in the 

jurisdictional allegations, thereby alleging that Respondent served as a master aboard the vessel 

SAN TOMAS as required by law or regulation, 46 CFR 15.805(a)(5). 
4

Respondent Corbello’s attorneys filed an Amended Answer to the Amended Complaint, 

in which Respondent continues to admit all jurisdictional allegations and deny all factual 

allegations. 

The trial-type hearing in this matter convened and commenced on April 20, 2005 at a 

hearing room of the U.S. Attorney’s Office Building in the city and port of Beaumont, Texas 

before Thomas E. P. McElligott, U.S. Administrative Law Judge hearing and deciding cases for 

the Department of Homeland Security and the United States Coast Guard. The hearing was 

conducted in accordance with the U.S. Administrative Procedures Act as amended and codified 

at 5 U.S. Code §§ 551-559, and the Coast Guard procedural regulations located at 33 CFR Part 

20. 

Lt. Ian Bird, Senior Investigating Officer, Lt. Ann McSpadden, and MST1 Jacquelyn 

Plevniak represented the United States Coast Guard at the hearing. Respondent Corbello also 

appeared at the hearing accompanied by attorney and law partner Mr. Francis J. Gonynor, Esq. 

and Captain Robert Sadler of the law firm of Eastham, Watson, Dale & Forney, L.L.P., of 

Houston, Texas. 

A total of seven (7) witnesses, including Respondent Corbello, testified under oath in this 

proceeding. The Coast Guard offered eighteen (18) exhibits that were accepted into evidence by 

the judge; whereas, the Respondent offered forty (40) exhibits that were accepted into evidence 

by the judge. The seven (7) witnesses and fifty-eight (58) exhibits are all listed in Appendix A, 

attached.

Rather than submit proposed findings of fact and conclusions of law, both parties chose 

instead to submit briefs in the form of a memorandum of law. All facts and issues raised in the 
5

parties’ briefs have been addressed throughout the body of this Decision and Order. The briefs 

were filed by May 17, 2005. 

After careful review of the entire record in this matter, I find that the Coast Guard IOs 

established and proved by a preponderance of reliable, probative, substantial and credible 

evidence that Respondent was negligent on August 2, 2004 shortly after midnight when 

Respondent failed to use all available means appropriate to circumstances or conditions to 

determine if a risk of collision existed with the anchoring tank ship TORM MARY. The Coast 

Guard IOs also established and proved by a preponderance of reliable, probative, substantial and 

credible evidence that Respondent committed an act of misconduct when Respondent operated a 

vessel beyond the limitations set by his Coast Guard issued license. However, the evidence does 

not establish and prove that Respondent failed to take action to avoid a collision with the T/S 

TORM MARY in ample time with due regard to good seamanship. 

II. FINDINGS OF FACT

The Findings of Fact and Conclusions of Law are based on a thorough and careful 

analysis of the said exhibits and documentary evidence, the testimonies of witnesses, and the 

entire record considered as a whole. 

1. On August 2, 2003, shortly after midnight a collision occurred in the Neches River, near 

Nederland, Texas, in east Texas between an anchoring tank ship, the TORM MARY, and a 

towing vessel, the SAN TOMAS, which was pushing ahead the Buffalo Fuel Barge 405. At 

and before the time of the collision, the towing vessel SAN TOMAS was navigated, 

controlled and operated by Respondent Denis Corbello, who was attempting to moor 
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alongside the anchoring tank ship (T/S) TORM MARY in order to transfer fuel between the 

fuel barge and the TORM MARY. (Entire Record). 

2. Respondent Corbello is the holder of U.S. Coast Guard issued U.S. Merchant Mariner’s 

License No 1049577. At the time of the incident, Respondent was licensed to operate steam 

or motor vessels of not more than one hundred gross registered tons (GRT) upon inland 

waters of the USA. Respondent’s license also allowed him to serve as mate of steam or 

motor vessels of not more than 200 GRT upon inland waters. (Agency Exhibit 1). 

3. The towing vessel SAN TOMAS is a 54.3 foot long towing vessel with the identifying 

official number 628953. (Tr. 20). The Buffalo Fuel Barge 405 (Buffalo 405) is a 297-foot 

long tank barge or fuel barge with the identifying official number 1144508. (Tr. 20).

4. The TORM MARY is a Danish 600-foot long tank ship with the identifying official number 

D3357. 

5. At approximately 12:01 a.m., the Respondent and towing vessel SAN TOMAS and barge 

Buffalo 405 departed Smith Bluff Docks located on the Neches River, in east Texas. 

(Respondent Exhibit 42). They were en route to the foreign or Danish vessel, TORM 

MARY, which was in the process of anchoring in the Lower Sun Anchorage area just off or a 

part of the Neches River, Texas. (Respondent Exhibit 18, 42).

6. Respondent was on duty that night, serving as the relief captain, operator and lookout 

onboard in charge of the towing vessel SAN TOMAS, from midnight to 6:00 a.m. Mr. 

George Edward Lott served as Respondent’s only deckhand and tankerman during those six 

(6) hours of duty and was the only other person awake and on duty with Respondent at the 

time. (Tr. 40, 63-64, 208, Agency Exhibits 8-10). Respondent was the person in charge of 

navigation and all maneuvers of the towing vessel and pushed barge, and Respondent had the 
7

authority to give orders to Mr. Lott, serving as Respondent’s tankerman and deckhand. 

Respondent at no time ordered Mr. Lott to go to or near the front or bow of the pushed ahead 

fuel barge to act as a lookout for Respondent. 

7. Before departing, Respondent spoke with both the pilot and the master of the tank ship (T/S) 

TORM MARY. (Tr. 208). At which time, they informed Respondent that the tank ship 

TORM MARY was entering the anchorage area and that the Respondent and the SAN 

TOMAS could begin its approach to come and moor alongside this tank ship. (Tr. 206-08).

8. The T/S TORM MARY first dropped its anchor at approximately 12:05 a.m. local time, or 

Central Standard Time. (Tr. 265, 271-72; Respondent’s Exhibit 34). She was anchored with 

one anchor and chain on the forward bow of the tank ship. (Tr. 86). 

9. It took approximately twenty minutes for the Respondent and the towing vessel SAN 

TOMAS pushing the barge ahead at all relevant times to reach the T/S TORM MARY in the 

area of the river called or known as the Lower Sun Anchorage, arriving at approximately 

12:20 a.m. local time or Central Time. (Tr. 216, 264 Respondent Exhibits 18, 42). 

10. Only when the Respondent’s towing vessel SAN TOMAS and pushed ahead barge turned 

starboard into the anchorage, Respondent radioed his deckhand-tankerman Mr. Lott to let 

Lott know they arrived. (Tr. 209, Respondent Exhibit 31). Only at that point, Mr. Lott left 

the towing vessel’s galley and headed towards or walked toward the front of the 297 foot 

long barge where he could help the two vessels safely come alongside the T/S TORM 

MARY and tie off the bow of the barge. (Tr. 38, 41, 46-47, 63-64). The intended purpose 

was to transfer fuel between the pushed ahead barge and the tank ship TORM MARY. 

11. Mr. Lott said he did not witness the collision as he was still proceeding or walking forward 

on the barge when the vessels hit. (Tr. 39-40, 42, 48, 64-65). However, when Mr. Lott first 
8

left the towing vessel’s galley, he observed that the front or bow of the barge being pushed 

ahead by Respondent’s towing vessel was about fifteen to twenty feet away from the tank 

ship TORM MARY. (Tr. 53). At that time, everything looked normal, including the speed 

of the vessel and the angle of approach. (Tr. 48, 54, 56-57, 71, 78). 

12. Similarly, everything appeared normal to Respondent as they approached. In particular, 

Respondent did not notice any movement on the TORM MARY. (Tr. 211, 218). At no time 

did Respondent call the wheelhouse of the T/S TORM MARY to ask if the T/S was still 

moving on its anchor chain or completely still. 

13. As the Respondent’s towing vessel SAN TOMAS approached at approximately 1 mile an 

hour, Respondent attempted to drive along the side of the T/S TORM MARY as close as 

possible, which would enable him to line up beside her in a parallel position about 1 to 5 feet 

away. Ideally, the pushed ahead barge would stop around the mid area of the tank ship for a 

center connection for the fuel transfer. (Tr. 204-05; Agency Exhibit 8).

14. However, when the vessels were about 2 feet apart, Respondent realized that they were going 

to hit or have a collision. (Tr. 224). In particular, Respondent noticed the bow of the barge 

Respondent was pushing ahead drifting towards and underneath the TORM MARY’S stern. 

(Tr. 224-25). As soon as Respondent perceived there was a problem, he immediately revved 

up both engines and steered hard to starboard, attempting to pivot the barge away from the 

TORM MARY. (Tr. 216-18, 228). More specifically, Respondent attempted to maneuver 

the barge full ahead on the port engine, full reverse on the starboard engine, attempting to 

bring the stern of the barge to the portside and the bow to starboard. (Tr. 218-19). But 

despite his efforts, the vessels collided. (Tr. 217).
9

15. At approximately 12:25 a.m., the port bow of the fuel barge Buffalo 405 Respondent was 

pushing struck the aft section of the tank ship TORM MARY. (Tr. 40, 69, 217, 219; 

Respondent Exhibits 18, 31). The barge then bounced off the ship and came back out to 

starboard about twenty to twenty-five feet. (Tr. 65). 

16. The impact fractured the tank ship TORM MARY’S outer metal skin of a fuel oil tank, and 

created a hole approximately 2.5 to 4 feet wide, which allowed approximately 95 metric tons 

of oil to spill into the Neches River in east Texas. (Tr. 66, 70, 219; Agency Exhibit 8, 

Respondent’s Exhibit 42). 

17. As the relief captain in charge of the towing vessel San Tomas between midnight and 6 a.m., 

Respondent Corbello chose to serve as the sole lookout on the night of the collision for the 

towing vessel and pushed ahead barge. (Tr. 220). Respondent did not order or ask his 

deckhand-tankerman Lott to be his lookout and be an extra pair of eyes and ears about 300 

feet forward of Respondent in the wheelhouse at the helm and totally behind the barge. 

18. When the captain of the towing vessel is in the wheelhouse, he has a greater elevation than 

the crewmembers standing on or near the bow of the barge by at least twenty to twenty-five 

feet and, thus, has a greater vantage point in seeing the space between the anchoring vessel 

and tow. (Tr. 59, 221, 274). The barge was 297 feel long and was being pushed ahead by 

Respondent’s towing vessel. (IOs’ color photographs; Agency Exhibits 1A, 3A and 4A).

19. The captain is usually able to safely maneuver the barge from the towing vessel’s 

wheelhouse without the deckhand acting as an additional lookout. (Tr. 52). If the captain is 

able to see properly from the wheelhouse, the deckhand does not always provide additional 

aid to the captain by being a second pair of eyes and ears and with a means of 
10

communicating to Respondent or calling out distances between the two vessels from his 

position on or near the barge’s bow. (Tr. 52, 59). 

20. Although deckhand-tankerman Mr. Lott has served in the past as a “lookout” while on duty 

as a deckhand, those situations were usually limited to conditions of poor visibility such as 

fog or heavy rain. (Tr. 46-47, 225). In particular, other than the rare instance of fog, Mr. 

Lott claimed he has never been asked to serve as a lookout when mooring a ship alongside 

another vessel, even when the mooring occurs in the dark of night. (Tr. 46-47). 

21. In this case, there was no fog on the night of the incident and Respondent claimed a view 

from the towing vessel’s wheelhouse was clear and unobstructed although he was about 300 

feet in back of or aft of the pushed ahead barge’s bow. (Tr. 55, 220-21, 223, 226, 286). 

22. Although it was dark at nighttime shortly after midnight, both Respondent and Mr. Lott 

maintained they were able to see properly from the towing vessel and the barge with the light 

from the tank ship TORM MARY. (Tr. 57-58, 211, 238). 

23. While the lights from the TORM MARY were excessively bright, Mr. Lott was able to see 

the distance between the two vessels and Respondent maintained he had a full visual picture 

of the 600 foot tank ship from its stern to its bow. (Tr. 55-56, 211, 227, 238). 

24. Mr. Richard Frenzel, who has more than forty-five years in the marine industry, was hired by 

Respondent’s attorneys and accepted as an expert witness for the Respondent in this case. 

(Tr. 249-50; Respondent’s Exhibit 41). 

25. In order to form an opinion and conclusion as to what caused the collision, Mr. Frenzel 

evaluated several documents, nautical charts and information, including the tank vessel 

TORM MARY’S logbook and ECDIS printouts. (Respondent’s Exhibit 42).
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26. An ECDIS is an electronic display of a vessel’s movements and positions on a nautical chart. 

(Tr. 122-23). The ECDIS printout tracks and displays the ship’s exact location 

approximately every sixty seconds. (Tr. 252). In this case, the ECDIS printout of the Danish 

tank vessel TORM MARY contains the local time, date and the tank ship’s latitude and 

longitude in degrees, minutes and seconds. (Tr. 254; Respondent’s Exhibit 37). When the 

vessel is stopped, the ECDIS shows the last time any movement was made. (Tr. 255; 

Respondent’s Exhibit 37). 

27. An evaluation of these documents reveal that the T/S TORM MARY radioed the towing 

vessel SAN TOMAS to come alongside before the tank ship was settled or stopped at anchor 

and, as a result, the tank ship was still moving prior to and at the time of impact and collision. 

(Tr. 256; Respondent’s Exhibit 37, 42).

28. More specifically, the ECDIS report shows that immediately before the collision occurred, 

between 12:17 a.m. and 12:20 a.m., the tank ship TORM MARY moved forward 

approximately thirty feet and west approximately thirty-two feet. (Tr. 267, 269; 

Respondent’s Exhibit 37, 42). 

29. The movement occurred when the tank ship TORM MARY came up out of her anchor and 

then dropped back down. (Tr. 265). More specifically, after the T/S TORM MARY entered 

the anchorage area and dropped anchor, the entire tank vessel continued to swing several 

times, both forward and back, until the ship finally set. (Tr. 258). In addition, because the 

ship is in a floating environment, the incoming tide and current caused her to move forward. 

(Tr. 257-58).

30. A vessel’s anchor typically does not drop straight down. (Tr. 258). Rather, the ship first 

drives forward to the place where it wants to eventually stop. Then the anchor is dropped to 
12

the bottom and the vessel’s engines are placed in reverse to drive the vessel backwards, 

which digs the anchor into the ground and causes it to set. (Tr. 260-61). However, this 

process stretches the anchor chain and removes all slack, which in turn, pulls the vessel 

forward again toward its original position. (Tr. 261-62). Depending on the amount of 

momentum, the vessel could continue to swing forward and back approximately three to six 

times until it finally sets. (Tr. 262-63). 

31. This continued movement is a usual and normal process experienced by all anchoring 

vessels, which may even continue up to twenty or thirty minutes after a vessel first drops its 

anchor. (Tr. 280-81, 290). It should be expected and allowed for by masters and captains 

such as Respondent operating or navigating nearby towing vessels and barges. 

32. At the time of these incidents, Respondent’s license did not authorize him to operate any type 

of towing vessel. (Tr. 20; Agency Exhibit 1).

33. When Respondent filed an application at the U.S. Coast Guard’s Regional Examination 

Center (REC) Houston, Texas for his license in January, 2004, he applied for a master of 

towing vessels, 200 gross registered tons (GRT). (Tr. 229-30). 

34. On February 12, 2004, Respondent received a letter from the U.S. Coast Guard, Regional 

Examination Center, which stated Respondent Corbello was not qualified for master of 

towing under 46 CFR 10.464(h). (Tr. 180; Agency Exhibit 6). The letter explained that 

Respondent did not qualify because he began his towing service after May 21, 2001. 

However, the REC’s letter further explained that a license for master of steam or motor 

vessel 100 GRT inland waters; and mate of steam or motor vessel’s 200 GRT inland waters 

may be issued at any time after Respondent filed another written application with the 

Regional Examination Center (REC) for it. (Tr. 163, 169; Agency Exhibit 6). 
13

35. On February 17, 2004, the Coast Guard REC Houston issued Respondent a license to operate 

steam or motor vessels of not more than one hundred GRT upon inland waters. (Agency 

Exhibit 1; Respondent Exhibit 1). 

36. Despite the letter’s explanation, Respondent said he thought that the license for which he 

qualified allowed him to operate towing vessels of 100 GRT or less. (Tr. 231). More 

specifically, Respondent believed that the license he received was the same as that issued to a 

number of other captains or masters who were authorized to operate towing vessels. (Tr. 

231). In turn, Respondent did not think he needed to also obtain a 100 GRT towing 

endorsement on his Coast Guard issued license in order to operate, navigate and command 

towing vessels pushing or pulling various numbers of barges, in ports, rivers and waterways 

of the USA. (Tr. 231).

37. When Respondent presented his license to Mr. Charles King, of Respondent’s employer and 

vice president of Buffalo Marine Service Company, Mr. King similarly said he believed that 

Respondent was authorized to operate a tugboat or towing vessel like the SAN TOMAS. (Tr. 

132). 

38. As such, Buffalo Marine Service hired Respondent to operate tugboats or towboats similar to 

the SAN TOMAS. (Tr. 131-32). By April, 2004, Respondent was serving as a relief captain, 

alone on duty for about six (6) hours solely in charge of towing vessels navigation. (Tr. 201).

39. Mr. King believed that Respondent had an appropriate license to operate the T/V SAN 

TOMAS because he thought that the master’s license for steam and motor vessels of not 

more than 100 GRT had been historically recognized as a qualifying license for towing 

vessels. (Tr. 143, 147).
14

 

40. In particular, Mr. King referred to what is known as “the grandfather clause”. Mr. King 

believed that under 46 CFR 10.464(h)1, a mariner who began service or training on a towing 

vessel prior to May, 2001, can automatically qualify for a master of towing license. (Tr. 169-

70). However, as this “grandfather clause” was only open for a limited time, mariners who 

met the above criteria must be qualified and approved prior to November, 2004. (Tr. 133, 

170).

2

 

41. As such, Mr. King believed that the master license for steam or motor vessels qualified 

Respondent for service also on towing vessels, and as long as the paperwork was completed 

by November 2004, Respondent would be automatically covered under the grandfather 

clause for a master of towing vessel license. (Tr. 133-34, 149).

42. Similarly, Respondent believed that he qualified under the grandfather clause because he 

worked on boats from 1980 to 1985. (Tr. 243). As such, Respondent believed that he had 

the necessary sea time to upgrade his license before November 2004. (Tr. 233, 243). 

43. However, that information was not included by Respondent in Respondent’s initial license 

application. It was filed with the REC by Respondent. (Tr. 243). In turn, the Regional 

Examination Center did not approve Respondent for a master of towing under 46 CFR 

10.464(h), as his towing service on record began after May 21, 2001. (Tr. 164-65, 170; 

Agency Exhibit 6). 

44. Mr. Stanley Mingus, who testified at this hearing is considered the U.S. Coast Guard’s 

Houston Regional Examination Center’s expert regarding towing licenses and who 

personally signed Respondent’s license, explained that mariners who begin service in the 

1

 In October, 2003, 46 CFR 10.464(h) was revised and redesignated as 46 CFR 10.464(g). 
15

 

towing industry after the closing date of May 21, 2001, can no longer simply apply for a 

master of towing license. (Tr. 159, 161-62, 172). Rather, these mariners are first issued a 

steersman license and must then work using it and progress towards a master of towing. 

Therefore, the original license issued to a U.S. merchant mariner can not be a master of 

towing license. (Tr. 172). 

45. A towing endorsement was issued and added to Respondent’s license on Sept 15, 2004, 

approximately one month after the collision and spill in question. The endorsement now 

authorizes Respondent to serve as master of towing vessels upon Great Lakes and inland 

waters of the USA. (Tr. 166; Respondent Exhibit 1).

III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Dennis G. Corbello and the subject matter of this hearing are properly within the 

jurisdiction of the United States Coast Guard and the U.S. Administrative Law Judge in 

accordance with the U.S. Administrative Procedures Act, 5 U.S.C. 551 to 559; 46 U.S.C. §§ 

6301 and 7703; 46 CFR Parts 5 and 33 CFR Part 20. 

2. At all relevant times, Respondent Corbello was the holder of and acted under the authority of 

his U.S. Coast Guard issued License No. 1049577 while serving as a master or captain 

aboard the towing vessel, SAN TOMAS, pushing ahead the Buffalo Fuel Barge 405 on and 

about August 2, 2004, on and about the Neches River in east Texas, on and after midnight 

local time, or Central Standard Time. 

2

 To qualify under the grandfather clause, mariners initially needed to complete and file with the REC all 

paperwork by May 21, 2004; however, the National Maritime Center extended the deadline until 

November, 2004. (Tr. 133, 170). 
16

3. The evidence in the record considered as a whole demonstrates that Respondent Corbello, 

negligently operated the towing vessel SAN TOMAS on August 2, 2000, which resulted in a 

collision with the T/S TORM MARY and oil spill when he attempted to moor or stop 

alongside the anchoring vessel in order to transfer fuel, between the barge Respondent was 

pushing ahead and maneuvering and the T/S TORM MARY. 

4. The first offense under the charge of Negligence, alleging that Respondent failed to take 

action to avoid collision with the T/S TORM MARY in ample time with due regard to good 

seamanship, is NOT PROVED. 

5. The second offense under the charge of Negligence, alleging that Respondent failed to use all 

available means appropriate to circumstance or condition to determine a risk of collision is 

PROVED by a preponderance of the reliable, probative, substantial and credible evidence 

and testimony as taken from the entire record considered as a whole. 

6. The charge of MISCONDUCT against Respondent Corbello is found PROVED by a 

preponderance of the reliable, probative, substantial and credible evidence and testimony as 

taken from the entire record considered as a whole. 

IV. DISCUSSION 

A major purpose of suspension and revocation trial-type hearings and judge’s 

written decisions is to protect lives and properties at sea, on USA rivers and ports against actual 

and potential dangers. See 46 U.S.C. § 7701. The purpose is not just to assess blame for marine 

casualties, collisions and sinkings. See Appeal Decision 1755 (Ryan). If it is shown that a U.S. 

license holder has committed an act of negligence or misconduct in performing his duties 
17

relating to the vessel, his U.S. issued license may be suspended or revoked. See 46 U.S.C. § 

7703(1)(B). 

In suspension and revocation proceedings and hearings, the burden of proof is on 

the Coast Guard Investigating Officers to establish or prove a prima facie case of negligence or 

misconduct by a preponderance of the evidence. See 5 U.S.C. § 556(d); 33 CFR 20.701-20.702; 

see also Appeal Decision 2485 (Yates). Misconduct is defined in 46 CFR 5.27 as “human 

behavior which violates some formal, duly established rule,” such as those found in the common 

law, the general maritime law, a ship’s regulation or order, or shipping articles. It is an act that is 

forbidden or a failure to do what is required. See 46 CFR 5.27. In the absence of such a rule, 

misconduct is the human behavior that a reasonable person would consider to constitute a failure 

to conform to the standard of conduct that is required in light of all the existing facts and 

circumstances. See Appeal Decision 2152 (MAGIE). In addition, specific intent is not an 

essential element of the charge of misconduct in these administrative proceedings. See Appeal 

Decision 2607 (ARIES); see also, Appeal Decision 2286 (SPRAGUE). 

Similarly, negligence is defined in 46 CFR 5.29 as “the commission of an act 

which a reasonable and prudent person of the same station, under the same circumstances, would 

not commit, or the failure to perform an act which a reasonable and prudent person of the same 

station, under the same circumstances, would not fail to perform.” This definition includes a 

failure of an individual to exercise the degree of care, vigilance and forethought that a person of 

ordinary caution and prudence ought to exercise. See Appeal Decision 2550 (RODRIQUES). In 

order to prove negligence, the Coast Guard IOs must show that Respondent’s conduct, in some 

manner, failed to conform to the standard of care required of a reasonable prudent mariner under 
18

the same circumstances. See Appeal Decision 2321 (HARRIS); see also Appeal Decision 2282 

(LITTLEFIELD). 

In addition, a mariner is negligent if he failed to take the precautions a reasonably 

prudent mariner would take in the same circumstances, regardless of whether or not his conduct 

or failure to act was the proximate or a contributing cause of the casualty. See Appeal Decision 

1755 (RYAN). As such, contributory negligence is not a defense in these proceedings, and the 

possible fault or negligence of another person or vessel in no way mitigates Respondent’s 

negligence or contribution to the collision and spill. See Appeal Decision 2031 (CANNON); see 

also Appeal Decision 2492 (RATH); Appeal Decision 2380 (HALL). Although the causal 

connection is necessary to establish liability for negligence in a civil proceeding for damages, it 

is not an element of negligence for the purposes of a suspension and revocation action. See

Appeal Decision 2358 (BUISSET); see also Appeal Decision 2438 (TURNER). Therefore, the 

alleged fault or contributory negligence of the tank vessel TORM MARY’S captain or crew 

relating to the marine casualty in this case will not serve to excuse any contributory negligence 

or misconduct on the part of Respondent Corbello. 

However, unlike an allision case where there is a presumption of negligence when 

a moving vessel strikes a fixed object or stopped vessel, the mere fact that a collision occurred 

between two vessels is not sufficient proof that Respondent acted negligently. See Appeal 

Decision 2358 (BUISSET). Rather, a collision is merely an event that prompts the investigation 

into the Respondent’s actions; and while there is sufficient evidentiary material in the record to 

substantiate the occurrence of both a collision and an oil spill, neither of these facts alone, as a 

matter of law, will support a finding of negligence. See Appeal Decision 2277 (Banashak); see 

also Appeal Decision 2057 (Shipp). 
19

In this case, the Agency charged Respondent with failing to take action to avoid a 

collision with the tank vessel TORM MARY on August 2, 2004; however, the Complaint 

contained no additional facts amounting to negligence nor was testimonial and/or documentary 

evidence presented at the hearing to support this allegation. Rather, the Coast Guard merely 

referenced Inland Navigational Rule 8 in its post-hearing brief, which states: “any action taken to 

avoid collision shall, if the circumstances of the case admit, be positive, made in ample time, and 

with due regard to the observance of good seamanship.” See 33 U.S.C. § 2008(a). Inland 

Navigational Rule 8 further states in pertinent part that if necessary to avoid a collision or allow 

more time to assess the situation, “a vessel shall slacken her speed or take all way off by 

stopping or reversing her means of propulsion.” See 33 U.S.C. § 2008(e). After citing Inland 

Navigational Rule 8, the Agency argued that Respondent indicated in his testimony, that he did 

not slacken his speed, stop, or reverse propulsion; and as such, Respondent was negligent. 

Despite the Agency’s contention that Respondent failed to act, a full review of the 

entire hearing record reveals that he took active measures in a failed attempt to avoid a collision 

with the tank vessel TORM MARY. At the hearing, Respondent testified that everything 

appeared normal to Respondent as the towing vessel SAN TOMAS and her pushed barge 

approached. In particular, Respondent did not see or notice any movement on the anchoring T/S 

TORM MARY. (Tr. 211, 218). It was not until the vessels were about 2 feet apart that 

Respondent saw and realized they were going to hit or collide. (Tr. 224). As soon as 

Respondent perceived or saw there was a problem, he immediately revved up both engines and 

steered hard to starboard, attempting to pivot the barge, his towing vessel was pushing ahead, 

away from the TORM MARY. (Tr. 216-18, 228). More specifically, Respondent attempted to 

maneuver the towing vessel and barge full ahead on the port engine, full reverse on the starboard 
20

engine, only attempting to bring the stern of the barge to the portside and the bow to starboard. 

(Tr. 218-19). While the vessels collided despite Respondent’s failed efforts, actions were 

nonetheless taken by Respondent in an attempt to avoid a collision, in compliance with Inland 

Navigational Rule 8. 

It should be additionally noted that Inland Navigational Rule 8(a) provides that 

any action taken to avoid collision is determined in light of whether “the circumstances of the 

case admit.” This case involved a close area approach, where Respondent purposely attempted 

to align the vessels next to each other, approximately one to five feet apart, in order to transfer 

fuel. As such, Respondent’s reaction time and maneuvering must be considered in light of the 

close quarter situation. The IOs presented no evidence that the actions taken by Respondent 

were inappropriate for the situation at hand, nor did the Agency show that Respondent’s 

measures further contributed to the collision. Likewise, the Coast Guard presented no alternative 

actions that if taken by Respondent in ample time would have avoided the collision. Therefore, I 

find that the Coast Guard failed to prove Respondent was negligent in failing to take action to 

avoid collision with the tank vessel TORM MARY in ample time with due regard to good 

seamanship. 

However, the Agency IOs successfully established and proved that Respondent 

Corbello was negligent on the night of the incident by failing to determine a risk of collision 

between the Respondent’s towboat and pushed barge and the anchoring vessel. In particular, 

Respondent should have known that the tank vessel TORM MARY was still swinging and 

moving on her anchor and, in turn, Respondent should have approached with greater caution. 

Likewise, Respondent committed an act of misconduct when he operated a vessel beyond the 

limitations of his license. As such, the actions of Respondent Corbello failed to conform to the 
21

standard of care exercised by a reasonably prudent mariner of the same station under the same 

circumstances. 

In defense of his actions taken on August 2, 2004, Respondent’s attorneys raise 

the following arguments, which will be addressed in further detail. Respondent’s attorneys 

argue: 

I) Respondent Corbello was not negligent in failing to determine a collision 

as he was in the best position from his station at the wheelhouse to act as a 

proper lookout; and 

II) According to the Agency’s interpretations of licensing requirements for 

towing vessel operators published in NVIC 04-01, Respondent was 

properly licensed on the day of the incident. 

For all the reasons stated herein, Respondent’s arguments are rejected. 

I. While Respondent Corbello was in the Best Position to Act as a Lookout, He 

Failed to Determine a Risk of Collision 

The Coast Guard IOs contended that by Respondent not designating a lookout on 

the bow of the barge Respondent was pushing ahead as Respondent approached the anchoring 

vessel at close range, Respondent violated Inland Navigation Rule 7 in that he failed to use all 

available means to determine if a risk of collision existed. Respondent, on the other hand, asserts 

that there is no absolute duty to maintain a lookout on or near the barge’s bow, and whether this 

precautionary measure is necessary is to be determined from all circumstances on the basis of 

common prudence. Respondent’s attorneys contend that on the night of the incident, 

Respondent’s view from the helm in the wheelhouse of the towing vessel behind the full length 
22

of the 297 foot long barge ahead was unobstructed; therefore, he was in the best position to serve 

as lookout. 

Case law and regulation pertaining to lookout clearly state that a second lookout 

is not always required and the helmsman may serve as lookout if the situation permits. In 

particular, Inland Navigational Rule 5 requires vessels to make a full appraisal of the situation 

and the risk of collision by maintaining a proper lookout by sight, hearing, and all available 

means appropriate in the prevailing circumstances and conditions. See 33 U.S.C. § 2005 

(emphasis added). U.S. Senate Report 96-979, which accompanies the Inland Navigation Rules, 

expresses Congressional intent concerning the helmsman’s ability to safely serve as lookout: 

On vessels where there is an unobstructed all-round 

view provided at the steering station, as on certain 

pleasure craft, fishing boasts, and towing vessels, or 

where there is no impairment of night vision or 

other impediment to keeping a proper lookout, the 

watch officer or helmsman may safely serve as the 

lookout. However, it is expected that this practice 

will only be followed after the situation has been 

carefully assessed on each occasion, and it has been 

clearly established that it is prudent to do so. Full 

account shall be taken of all relevant factors, 

including but not limited to the state of the weather, 

conditions of visibility, traffic density, and 

proximity of navigational hazards. It is not the 

intent of these rules to require additional personnel 

forward, if none is required to enhance safety. 

See S. Rep. No. 979, 96th Cong., 2d Sess. 7-8 

(1980)

Similarly, case law has interpreted this rule as a general guide, to be determined 

by the totality of the circumstances. In particular, Commandant’s Decisions on Appeal have 

repeatedly held that the adequacy of a lookout on board a vessel is a question of fact to be 

resolved under all-existing facts and circumstances of each case. See Appeal Decision 2390 

(Purser); see also Appeal Decisions 2503 (MOULDS); Appeal Decision 2421 (RADER); Appeal 
23

Decision 2414 (HOLLOWELL); Appeal Decision 2319 (PAVELEC). Therefore, each situation 

must be considered independently when determining whether a separate, dedicated lookout is 

also required. See Appeal Decision 2503 (MOULDS). 

While there are some Commandant Decisions on Appeal that have found a 

mariner negligent for failing to use additional personnel as lookout on the bow or forward on a 

vessel, those cases usually pertained to circumstances of restricted visibility where the view from 

the wheelhouse was obstructed. See Appeal Decision 2581 (DRIGGERS) (where it was 

determined that a forward bow lookout was required given the blind spot in front of the flotilla, 

the presence of numerous pleasure boats in the area, and the additional activities performed by 

the lookout stationed at the helm); see also Appeal Decision 2482 (WATSON) (requiring a 

separate lookout at the head of the tow in light of the number of barges in the tow, the length of 

the tow, the density of fog creating restricted visibility, and the congested nature of the river); 

Appeal Decision 2474 (CARMIENKE) (holding that a prudent mariner would have assigned an 

additional lookout given the restricted visibility caused by fog and the density of traffic). 

In this case, Respondent operated the pushing towing vessel SAN TOMAS from 

the helm in the wheelhouse and could clearly see the position of both the towing vessel and 

barge in front relative to the TORM MARY as he approached. More importantly Respondent 

had an unobstructed view of all points necessary to ascertain the distance between the ship, the 

barge, and the tow. Three Respondent’s witnesses at the hearing: Respondent Corbello, Mr. 

George Lott, who served as Respondent’s deckhand and tankerman on the towing vessel SAN 

TOMAS, and Mr. Richard Frenzel, an expert witness for Respondent with over forty-five years 

experience in the merchant marine industry, explained that the pilot has the clearest view of the 

bow of the barge from his position in the wheelhouse of the pushing towing vessel. More 
24

specifically, when the captain of the towing barge is in the wheelhouse, he has a greater elevation 

than the crewmembers standing on or near the bow of the barge by at least twenty to twenty-five 

feet and, thus, has a greater vantage point in seeing the space between the tank vessel and tow. 

(Tr. 59, 221, 274-275). In turn, the captain is usually able to maneuver the towing vessel and 

barge from the wheelhouse without the deckhand acting as an additional lookout. (Tr. 52). In 

fact, Mr. Lott, deckhand and tankerman, further explained that while the deckhand can see along 

the side of the barge from his position on the barge’s bow and observe the distance between the 

two vessels, the deckhand would not benefit the captain by calling out distances if the captain is 

able to see properly from the wheelhouse. Rather, this would be redundant and inefficient. (Tr. 

52, 59). 

While Mr. Lott, deckhand and tankerman, has been asked in the past to serve as a 

lookout, those situations were usually limited to conditions of poor visibility such as fog or 

heavy rain. (Tr. 46-47, 225). In particular, other than the rare instance of fog, Mr. Lott claimed 

he has never been asked to serve as a lookout when mooring the ship alongside another vessel, 

even when the mooring occurs in the dark of night. (Tr. 46-47). In this case, there was no fog 

on the night of the incident and Respondent said his view from the wheelhouse was clear and 

unobstructed. (Tr. 55, 220-221, 223, 226, 286). Moreover, although it was nighttime, both 

Respondent and Mr. Lott testified they were able to see from the pushing towing vessel and 

barge with the ambient light from the TORM MARY. (Tr. 57-58, 211, 238). It is important to 

note that while the lights from the TORM MARY were excessively bright, Respondent said he 

had a full visual picture of the anchoring tank ship from the stern to the bow. (Tr. 211, 227, 236-

37). A review of all existing facts and circumstances in this case reveal that Respondent was in a 
25

position to act as lookout from his station at the helm in the wheelhouse of the pushing towing 

vessel and was not negligent for failing to post a second lookout on or near the bow of the barge. 

However, a full examination of the entire hearing record reveals that Respondent 

was negligent for failing to determine if a risk of collision existed with the tank ship TORM 

MARY, a vessel that had just gone into anchorage and had not yet set or stopped moving. Inland 

Navigational Rule 7 directs that “every vessel shall use all available means appropriate to the 

prevailing circumstances and conditions to determine if a risk of collision exists.” See 33 U.S.C. 

§ 2007(a). A vessel and its navigator at the helm in the wheelhouse must take into consideration 

that such a risk may sometimes exist when an appreciable bearing change is evident, particularly 

when approaching a vessel at such close range. See 33 U.S.C. § 2007(d)(ii). In addition, Inland 

Navigational Rule 2 provides that nothing in the navigational rules exonerates a vessel, master, 

or crew from the consequences of any neglect to comply with any precaution that may be 

required by the ordinary practices of navigators or by the special circumstances of the case. See

33 U.S.C. § 2002(a). In construing and applying the rules, due regard shall be had to all dangers 

of navigation and collision and to any special circumstances. See 33 U.S.C. § 2002(b). 

This case involved a special situation whereby Respondent attempted to come 

alongside a larger tank vessel that had very recently started anchoring. It is basic or common 

knowledge among mariners in the maritime and towing industry that an anchored vessel 

continues to move forward and back until the anchor finally sets. (Tr. 278-80). Respondent’s 

attorneys’ maritime expert witness Mr. Frenzel explained at the hearing that these movements 

are a normal process experienced by all vessels attempting to anchor, which movements may 

even continue up to twenty or thirty minutes after a vessel first drops its anchor. (Tr. 280-81, 
26

290). Depending on the amount of momentum, the vessel could continue to swing forward and 

back approximately three to six times until it finally sets or stops. (Tr. 262-63). 

In this case, when the tank vessel TORM MARY radioed the towing vessel SAN 

TOMAS to come alongside, Respondent was specifically told by the T/V’s pilot or captain that 

the vessel had just completed anchoring. (Tr. 206-08; Agency Exhibit 8). As the operator of a 

towboat or push-boat, Respondent should have known that since the tank vessel TORM MARY 

had only recently just finished anchoring, there was a greater likelihood that the tank vessel 

would still be swinging or moving on its anchor chain when the towboat approached merely 

twenty minutes later. (Tr. 216, 264). With this knowledge, Respondent should have approached 

with greater caution, particularly in light of the fact that this was a close approach situation 

involving the transfer of fuel. The record reveals that Respondent did not know the anchored 

vessel could be swaying nor did he approach with greater caution. As such, the Respondent is 

negligent for failing to use all available means appropriate to the prevailing circumstances and 

conditions to determine if a risk of collision existed with the T/S TORM MARY. 

II. Respondent Corbello was not Properly Licensed to Operate a Towboat on the Day of the 

Incident 

Respondent argues that the requirements in 46 CFR 10.464, which regulate the 

licensing of towing vessel personnel, are confusing, susceptible to various interpretations, and 

have caused general problems with the towing industry since their inception. Therefore, 

Respondent contends that the requirements in 46 CFR 10.464 should be void for vagueness. 

Despite the confusion, Respondent additionally asserts that he was authorized to operate a 
27

towing vessel at the time of the incident according to the Agency’s own interpretation in its 

Navigation and Vessel Inspection Circular (NVIC) 04-01, published in May, 2001. 

More specifically, Respondent refers to an email circulated by Mr. Larry Griffin, 

the Coast Guard Senior Personnel Inspector at the Houston Texas Regional Examination Center 

(REC), in which Mr. Griffin acknowledges that there was still some confusion regarding the 

licensing credentials of towboat operators. While Mr. Griffin advises industry representatives to 

review in its entirety this NVIC 04-01, he provides in his email a brief extraction of the NVIC, 

which refers to the licensing and manning requirements for officers of towing vessels. 

(Respondent Exhibit 38). From that extraction, Respondent focuses on section 7(m)(1)(b)(5) of 

NVIC 4-01, which provides in part that, between May 20, 2001 and May 21, 2006, any towing 

vessel that requires a second licensed officer maybe under the direction and control of another 

officer holding a “mate of inspected self-propelled vessels with any restrictions on that license, 

until the first renewal or upgrade of the license.” 

On the day of the incident, another crewmember aboard the towing vessel SAN 

TOMAS, Mr. Shawn Conger, held a Master’s license for towing vessels. While Mr. Conger was 

relieved of all duties by Respondent for six hours (12 midnight to 6 a.m.) and therefore off duty 

at the time of the collision, the tug SAN TOMAS nevertheless required two licensed officers on 

board as per Coast Guard regulation. Therefore, Respondent argues that he was authorized to be 

in charge in the wheelhouse at the helm of the pushing vessel SAN TOMAS, serving as a second 

licensed officer, on the day of the incident. 

A Navigation and Vessel Inspection Circular provides detailed guidance about the 

enforcement or compliance with a particular federal marine safety regulation or Coast Guard 

marine safety program. See Navigation & Vessel Inspection Circulars (NVICs), at
28

http://www.uscg.mil/hq/g-m/nvic/ All NVICs are indexed and available to the public and the 

marine industry; however, they do not have the force of law. While NVICs are not regulations, 

they are important tools for interpreting a regulation and complying with the law. In this case, 

Respondent’s understanding of NVIC 04-01 and the correlating regulations at 46 CFR 10.464 is 

in error. In particular, Respondent narrowly focuses on a single section of NVIC 04-01 in an 

attempt to understand the totality of statutes, regulations and guidelines pertaining to licensing 

and personnel manning requirements for towing vessel operators. As also directed by Mr. Larry 

Griffin in his email to the industry representative, NVIC 04-01 must be read in its entirety. 

(Respondent’s Exhibit 38). 

To begin with, the Coast Guard revised the rules for licensing of all operators or 

navigators of towing vessels, which became effective on May 21, 2001 and applied to all 

mariners in the towing industry. See NVIC 04-01 §§ 4 and 6(a). The purpose of this revision 

was to improve licensing, training, and qualifications of operators of uninspected towing vessels 

and to improve navigational safety on towing vessels. See NVIC 04-01 § 4. In turn, NVIC No 

4-01 was published to clarify and provide specific guidance on the licensing and manning of 

towing vessel operators. See NVIC 04-01 § 1. 

Before the revision, the primary license issued to towing vessel operators and 

captains was the OUTV (operation uninspected towing vessel). The license structure, 

effectively, contained only a single grade of license, which resulted in a limited license 

progression. See NVIC 04-01 § 4(c). However, under the new licensing plan or scheme, a 

progression was established in which mariners would progress through several grades after 

service on towing vessels, training, and examination before qualifying for their master and 

captain of towing vessel license. More specifically, a mariner would first receive a license as an 
29

apprentice mate (steersman); then after training and assessment, a mariner would receive a 

license as a mate (pilot). After further experience, a mariner would finally receive a license as 

master of towing vessels. See NVIC 04-01 § 4(f). 

However, maritime officers who operated towing vessels before the revised rules 

took effect, did not have to convert their licenses under the new system until their old licenses 

required a renewal on or after May 21, 2001. See NVIC 04-01 §§ 4(g), 6(b) and 7(l); see also

Enclosure (1) to NVIC 04-01, page 1. Similarly, mariners who began training or service on a 

towing vessel before May 21, 2001, may also be “grandfathered” into the new system, whereby 

they would immediately qualify for a master’s license rather than progressing through the 

various grades. See NVIC 04-01 § 4(g); 46 CFR 10.464(g). Yet, the allowance for those 

mariners who began training or service before May 21, 2001 is not automatic. Rather, those 

mariners must receive a license with a towing endorsement, which will only be issued after a 

mariner has served the required amount of sea time and passes an examination. See 46 CFR 

10.464(g). 

It is important to note that all license transactions after May 21, 2001, whether 

issued for the first time, upgraded, or renewed, must contain a towing endorsement. See NVIC 

04-01 § 7(i)(2). Section 7 of NVIC 04-01 provides an in depth discussion of the various 

licensing requirements and the progression steps undertaken by mariners that enable them to 

operate towing vessels. In particular, a distinction between the licensing requirements for 

officers who held towing vessel licenses before the revision date of May 21, 2001 and the 

requirements for all other licenses issued or endorsed after that date is clarified in Section 7(i)(1) 

and (2). Specifically, section 7(i)(1) provides a list of licenses that authorize a mariner to operate 

a towing vessel, if that license was issued before May 20, 2001. If a mariner holds one of these 
30

listed licenses, he may continue to operate a towing vessel up to May 21, 2006, unless there is 

any type of license transaction, such as a license renewal or upgrade, during that period. See

NVIC 04-01 § 7(i)(1). If there is any type of license transaction, the license must contain one of 

the endorsements listed in 7(i)(2). Similarly, all new licenses for service on towing vessels that 

are issued or endorsed after May 21, 2001 must contain one of the endorsements listed in 7(i)(2). 

See NVIC 04-01 § 7(i)(2). 

When reviewing NVIC 04-01 in its entirety, it becomes clear that the provisions 

pertaining to the manning of a towing vessel by a second licensed officer, must reflect the above 

stated requirements. More specifically, any towing vessel that requires a second licensed officer 

may be under the direction and control of another officer holding a “mate of inspected selfpropelled vessels with any restrictions on that license,” if that license was issued before May 21, 

2001. See NVIC 04-01 § 7(m)(1)(b)(5). That license will authorize the mariner to operate a 

towing vessel up to May 21, 2006, unless there is any type of license transaction, such as a 

renewal or upgrade, during that period. See NVIC 04-01 § 7(m)(1)(b)(5). After which time, the 

mariner’s new license must have one of the endorsements listed in section 7(i)(2). 

Because Respondent Corbello received his mate license in February, 2004, well after the 

fundamental date of May 21, 2001, Respondent was not authorized to operate a towing vessel as 

a second officer under the criteria established in NVIC 04-01 § 7(m)(1)(b)(5). 

At the time Respondent’s initial license was issued, the new regulations were in 

effect requiring a license endorsement for service on towing vessels. In this case, Respondent 

was initially hired by Buffalo Marine Service Company as a deckhand, and after an appropriate 

length of time, he began training as a tanker man. After additional service, Respondent went to 

school to become a master of towing vessels based on his experience and service at sea. (Tr. 
31

131-32). Because Respondent’s training began in the 1980’s, he applied for a master of towing 

license under the allowances provided in 46 CFR 10.464(g). (Tr. 131-32, 229-30, 243). 

However, Respondent still needed to complete an examination and show that he possessed the 

required amount of training and time at sea. See 46 CFR 10.464(g). The relevant and important 

information pertaining to Respondent’s service and training was not included by Respondent in 

his initial written and filed application; therefore, the Coast Guard Houston Regional 

Examination Center (REC) did not issue Respondent an endorsement to operate towing vessels. 

(Tr. 164-65, 170, 243; Agency Exhibit 6).

Instead, Respondent received a license to operate steam or motor vessels of not 

more than one hundred GRT and to operate steam or motor vessels as a general mate of not more 

than 200 GRT. Respondent’s license was accompanied with a letter from the REC, explaining 

that Respondent did not qualify for the master of towing license because he did not begin his 

towing service before May 21, 2001. However, the letter also informed Respondent that he was 

approved to test for the steersmen of towing vessel license; he just needed to schedule an 

appointment in advance. (Agency Exhibit 6). There is no indication in the record that 

Respondent ever applied for and received the steersman license. 

At the time of the incident, Respondent’s license was limited to the operation of 

only steam or motor vessels. As this license was issued after May 21, 2001, Respondent needed 

one of the endorsements listed in NVIC 04-01 § 7(i)(b) before he could serve as master or 

captain on a towing vessel. On the date charged, he did not hold any one of these endorsements. 

It is noted that Respondent subsequently was issued a license allowing service on towing vessels 

and that it is likely he qualified for such an endorsement when he initially filed his incomplete 

application and at the time of the incident. However, Respondent was not properly endorsed; 
32

therefore, on the face of the license that he possessed on the date of the collision and spill, 

Respondent should not have been performing the duties of a master or mate of a towing vessel. 

Admittedly, both 46 CFR 10.464 and the accompanying NVIC instructions are 

daunting and confusing. However, I find that the relevant sections pertaining to the issuance of 

licenses after May 21, 2001 are clear. All license transactions occurring after May 21, 2001 must 

have a printed or written endorsement on them to authorize service on towing vessels. Nothing 

in the applicable regulation, the NVIC, or letter from REC supports Respondent’s conclusion 

that his general mate license authorized him to operate towing vessels without such an 

endorsement. Rather, it is unsound to argue or conclude that the operation of towing vessels by 

Respondent was permissible at the time of the incidents in question. Respondent Corbello 

received a license to operate steam or motor vessels, and the accompanying letter from REC 

informed him that he could apply and test for steersman of towing vessels, which is the lowest 

grade license for the operation of towing vessels. It is, therefore, unreasonable to conclude or 

argue that a general mate’s license for steam or motor vessels would authorize a mariner to act as 

master of towing vessels, for which the highest grade license is required. As such, I find that 

Respondent Corbello committed an act of misconduct on August 2, 2004 when he wrongfully 

exceeded the scope of his license by operating and navigating a towing vessel. 

V. CONCLUSION

The preponderance of evidence in the entire record supports a finding that Respondent 

acted negligently on August 2, 2004 shortly after midnight local time when he failed to use all 

available means appropriate to circumstances or conditions to determine if a risk of collision 

existed between Respondent’s towboat and its pushed ahead barge and the anchored tank vessel, 
33

the TORM MARY. The preponderance of evidence in the record further supports a finding that 

Respondent committed an act of misconduct on the day of the incident when he operated a vessel 

beyond the limitations set by his Coast Guard issued license. However, the evidence does not 

prove or establish that Respondent failed to take action to avoid a collision with the TORM 

MARY in ample time with due regard to good seamanship. 

It is well within the power or authority of the undersigned judge to order any of a variety 

of sanctions, including suspension. See 46 CFR 5.569; see also Appeal Decision 2569 (Taylor). 

The Table of Suggested Range of an Appropriate Order codified in 46 CFR 5.569(d) 

recommends an order of 2 to 6 months suspension for negligence related to vessel navigation and 

1 to 3 months suspension for misconduct related to compliance with U.S. law or regulation. In 

this case, the U.S. Coast Guard IOs have proposed that Respondent receive a fifteen (15) month 

outright suspension of Respondent’s license and also a twelve months probation. The 

undersigned judge, however, is not bound by the Table of an Appropriate Order. See (Taylor). 

The Table of an Appropriate Order merely serves as general guidance to an Administrative Law 

Judge, and consideration of mitigating or aggravating factors may justify a lower or higher order 

than the range suggested in the order table. See 46 CFR 5.569(d). 

 In this case, Respondent should have known that the tank vessel TORM MARY was 

swinging or could well be moving on her anchor chain and, in turn, approached with greater 

caution. However, it is important to note that the TORM MARY radioed the towboat and 

informed Respondent that it was safe to some alongside to transfer fuel. Although Respondent 

testified that he could have asked if the anchored vessel was moving before approaching, he 

claimed this is not the customary practice among mariners in the towing industry. (Tr. 229). 

Rather, it was explained at the hearing that when an anchored vessel requests an approach and 
34

informs the towboat operator that it is safe to come alongside, the towboat operator typically 

approaches without inquiring when the vessel dropped anchor or how long it’s been in 

anchorage, or whether the anchoring or anchored vessel is fully stopped. (Tr. 280, 288-289). 

Similarly, there is no requirement or rule that such action be taken. Nor is there any rule 

forbidding the careful marine operator or navigator to ask if the anchoring vessel is still moving 

or completely stopped in the water As such, Respondent is not required to exercise extraordinary 

diligence to avoid collision, but only that degree of care that, in similar situations, would 

ordinarily be sufficient to the safety of lives and properties. See Appeal Decision 544 (LEE). 

Similarly, no evidence was presented that a prudent mariner under the same circumstances would 

have operated the towboat in a manner different than that performed by the Respondent. 

However, Respondent was negligent on the day of the incidents. 

 It should additionally be noted that the Coast Guard could have presented documentary 

exhibits and evidence and/or witnesses in aggravation involving the oil spill caused by this 

collision. While a brief discussion of the spill was presented in the Agency’s post hearing brief, 

no actual evidence was submitted on the size, scope and significance of the oil spill, caused by 

Respondent’s navigation of the towing vessel and barge. 

 In consideration of mitigating factors, there is some evidence that reasonable steps were 

taken to contain the spill in that it was quickly boomed off and the appropriate authorities were 

notified of the incident. In addition, while Respondent operated a vessel beyond the scope of his 

license, I find that he did so without intent. Rather, Respondent acted with a good faith belief 

that the license he possessed at the time of the incident authorized him to operate a towboat. 
35

 In light of all the totality of circumstances and facts surrounding this case, a more 

appropriate sanction is deemed to be a six (6) month outright suspension with additional twelve 

(12) months probation. WHEREFORE, 

It is hereby further, 

ORDERED that the service of this Decision on Respondent’s attorneys will serve as 

notice to Respondent and his attorneys of his right to appeal, the procedure for which is set forth 

in 33 CFR 20.1001-20.1003. (Attachment A) 
36

VI. ORDER

IT IS ORDERED that the charge of Negligence against Respondent Dennis G. Corbello 

and the supporting offense thereunder that he failed to use all available means appropriate to 

circumstance or condition to determine a risk of collision is PROVED; it is further, 

ORDERED that the charge of Misconduct against Respondent Corbello and the 

supporting offense thereunder that he operated a vessel beyond the limitations set in his Coast 

Guard issued license is PROVED; it is further 

ORDERED that the U.S. Coast Guard License, No 1049577 issued to the Respondent is 

hereby SUSPENDED outright for a period of six (6) months to begin upon delivery of 

Respondent’s license to the Investigating Officers at the Marine Safety Office in Port Arthur, 

Texas. A PROBATIONARY PERIOD will follow of twelve (12) months probation on six (6) 

months suspension. If in another suspension and revocation proceeding it is proved, or admitted 

to, for violations during the twelve-month period of probation following the six (6) months 

outright suspension, Respondent’s Coast Guard issued credentials would then be suspended for 

an additional six (6) months. Respondent is ordered to deliver his U.S. Merchant Mariner’s 

License to the Investigating Officers at the Marine Safety Office Port Arthur, Texas by mail or in 

person. 

 __________________________ 

 THOMAS E. P. MCELLIGOTT 

 U.S. Administrative Law Judge 

 U.S. Department of Homeland Security 

 U.S. Coast Guard 

Dated this 1st day of March, 2006 

Houston, Texas 
37

APPENDIX A

UNITED STATES COAST GUARD v. DENNIS G. CORBELLO

DOCKET NUMBER: 04-0517 

CG Case No. 2185635 

LIST OF WITNESSES AND EXHIBITS

INVESTIGATING OFFICER (IO) EXHIBITS 

1. Copy of Merchant Mariner’s License, Serial Number 1049577 (introduced and accepted as 

Agency Exhibit 1) 

2. Application for Original License on January 26, 2004 (introduced and accepted as Agency 

Exhibit 2) 

3. Coast Guard Form 2692, Report of Marine Accident, Injury or Death from SAN TOMAS 

(introduced and accepted as Agency Exhibit 3) 

4. Copy of Certificate of Documentation for towing vessel and tug SAN TOMAS (introduced and 

accepted as Agency Exhibit 4) 

5. Copy of Certificate of Documentation for barge BUFFALO 405 (introduced and accepted as 

Agency Exhibit 5) 

6. Letter from Regional Examination Center to Dennis Corbello (introduced and accepted as 

Agency Exhibit 6) 

7. Apprentice Mate (Steersman) of Towing Vessel Sheet (introduced and accepted as Agency 

Exhibit 7) 

8. Written Statement from Mr. Stephen Mills (introduced and accepted as Agency Exhibit 8) 

9. Written Statement from Shawn Conger (introduced and accepted as Agency Exhibit 9) 

10. Written Statement from deckhand and tankerman George Lott (introduced and accepted as 

Agency Exhibit 10) 

11. Written Statement from Amador Pena (introduced and accepted as Agency Exhibit 11) 

12. Email from Charles King to Larry Griffin, dated November 19, 2004 (introduced and accepted as 

Agency Exhibit 12) 
38

13. Blown up Photograph of the anchored tank vessel TORM MARY (introduced and accepted as 

Agency Exhibit 1A) 

14. Blown up Photograph of the TORM MARY (introduced and accepted as Agency Exhibit 2A) 

15. Blown up Photograph of the TORM MARY (introduced and accepted as Agency Exhibit 3A) 

16. Blown up Photograph of the TORM MARY (introduced and accepted as Agency Exhibit 4A) 

17. Blown up Photograph of the Neches River Waterway and Banks in East Texas (introduced and 

accepted as Agency Exhibit 5A) 

18. Blown-up Navigational Chart of the Neches River and the McFadden Bend Cutoff (introduced 

and accepted as Agency Exhibit 6A) 

19. Nautical Chart 11343 of the Sabine and Neches Rivers (introduced and accepted as Agency 

Exhibit 7A) 

INVESTIGATING OFFICER (IO) WITNESS LIST 

1. Mr. George Lott

2. Mr. Stephen Mills

3. Mr. Stanley Mingus

4. Mr. Larry Griffin

RESPONDENT EXHIBIT LIST 

1. Captain/Mate license, and Back of License with Towing Endorsement Attached (introduced and 

accepted as Respondent Exhibit 1) 

2. Copy of Dennis Corbello’s U.S. Merchant Mariner’s License (introduced and accepted as 

Respondent Exhibit 2) 

3. Letter from Commanding Officer MSO-Houston to Dennis Corbello, Dated February 12, 2004 

(introduced and accepted as Respondent Exhibit 3) 

4. Letter from Buffalo Marine Service, Charles King to Commanding Officer U.S. Coast Guard, 

dated November 12, 2003 (introduced and accepted as Respondent Exhibit 4) 

5. Letter from Officer in Charge, Marine Inspection to Dennis Corbello, dated October 22, 2004 

(introduced and accepted as Respondent Exhibit 5) 
39

6. E-mail Communication from Stanley Mingus to Lt. Ian Bird and Larry Griffin, dated August 16, 

2004 (introduced and accepted as Respondent Exhibit 6) 

7. Email Message from Lt. Ian Bird to Larry Griffin, dated August 16, 2004 (introduced and 

accepted as Respondent Exhibit 7) 

8. Email Message from Larry Griffin to Stanley Mingus, dated August 12, 2004 (introduced and 

accepted as Respondent Exhibit 8) 

9. Email Message from Martin Bryant to Larry Griffin, dated August 12, 2004 (introduced and 

accepted as Respondent Exhibit 9) 

10. Email Message from Stanley Mingus to Martin Bryant, dated August 12, 2004 (introduced and 

accepted as Respondent Exhibit 10) 

11. Email Message from Larry Griffin to Stanley Mingus, dated August 12, 2004 (introduced and 

accepted as Respondent Exhibit 11) 

12. Email Message from Martin Bryant to Larry Griffin, dated August 12, 2004 (introduced and 

accepted as Respondent Exhibit 12) 

13. Letter from Buffalo Marine Service, Charles King, to Investigating Officer U.S. Coast Guard 

MSO-Port Arthur, dated August 11, 2004 (introduced and accepted as Respondent Exhibit 13) 

14. Letter from Buffalo Marine Service, Charles King, to Commanding Officer, Regional Exam 

Center Houston, dated November 12, 2003 (introduced and accepted as Respondent Exhibit 14) 

15. First Aid/CPR Certificate for Dennis Corbello (introduced and accepted as Respondent Exhibit 

15) 

16. Radar Observer Unlimited Certificate from Dennis Corbello (introduced and accepted as 

Respondent Exhibit 16) 

17. 82-Hour Master Not More Than 100 Gross Tons Certificate from Louisiana Technical College 

for Dennis Corbello (introduced and accepted as Respondent Exhibit 17) 

18. Daily Log Sheet for the Tug SAN TOMAS, dated August 1, 2004, August 2, 2004 and August 3, 

2004 (introduced and accepted as Respondent Exhibit 18) 

19. Navigation Vessel Inspection Circular No. 4-01 published by Commandant U.S. Coast Guard, 

May 21, 2001 (introduced and accepted as Respondent Exhibit 20) 

20. Enclosure No. 1 of NVIC 4-01 (introduced and accepted as Respondent Exhibit 21) 

21. Enclosure No. 2 of NVIC 4-01, pages 9 through 18 (introduced and accepted as Respondent 

Exhibit 22) 
40

22. Chart Excerpt of Neches River East Texas (introduced and accepted as Respondent Exhibit 23) 

23. Copy of Inland Navigational Rule 3, continued page only (introduced and accepted as 

Respondent Exhibit 24) 

24. Letter from Training Officer, U.S. Coast Guard, National Maritime Center, William St. J. Chubb 

to Capt. Robert L. Sadler, Jr. (introduced and accepted as Respondent Exhibit 25) 

25. Enforcement Summary for Activity No. 2185670, proceeding against Shawn Conger, 6 pages 

(introduced and accepted as Respondent Exhibit 27) 

26. Letter from Investigating Officer MSO Port Arthur to Shawn Conger, dated September 27, 2004 

(introduced and accepted as Respondent Exhibit 28) 

27. Photocopy of Various Photographs of Hull Damage Sustained by the M/V TORM MARY 

(introduced and accepted as Respondent Exhibit 29) 

28. Coast Guard 2692 Report of Marine Accident, Injury or Death, Submitted by the SAN TOMAS, 

including barge addendum and written statement of Dennis Corbello (introduced and accepted as 

Respondent Exhibit 31) 

29. Coast Guard 2692 Report of Marine Accident, Injury or Death, Submitted by the TORM MARY, 

including additional statements and additional witness list (introduced and accepted as 

Respondent Exhibit 32) 

30. Vessel Particulars for the M/V TORM MARY (introduced and accepted as Respondent Exhibit 

33) 

31. Deck Log for the M/V TORM MARY, July 31, 2004, August 2, 2004, and August 4, 2004 

(introduced and accepted as Respondent Exhibit 34) 

32. Fathometer Excerpts from the M/V TORM MARY (introduced and accepted as Respondent 

Exhibit 35) 

33. Course Recorder Excerpts from the M/V TORM MARY (introduced and accepted as 

Respondent Exhibit 36) 

34. ECDIS Printout for the M/V TORM MARY (introduced and accepted as Respondent Exhibit 37) 

35. E-mail from Larry Griffin to Dave Foreman, et al, sent Friday, January 7, 2005 (introduced and 

accepted as Respondent Exhibit 38) 

36. Consolidated Discovery Responses from the Coast Guard to Dennis Corbello’s Attorney’s 

Requests for Production and Interrogatories (introduced and accepted as Respondent Exhibit 39) 
41

37. Letters from Industry Representatives Submitted by Charles King Regarding Coast Guard 

Licensing Procedures (introduced and accepted as Respondent Exhibit 40) 

38. Curriculum Vita and additional Coast Guard credentials for Richmond L. Frenzel (introduced 

and accepted as Respondent Exhibit 41) 

39. Expert Report from Richard Frenzel (introduced and accepted as Respondent Exhibit 42) 

40. Memorandum from Jennifer Carpenter, of American Waterways Operators, to Common Issues 

Council Members regarding CIC meeting agenda items for April 21, 2005 (introduced and 

accepted as Respondent Exhibit 43) 

RESPONDENT WITNESS LIST 

1. Mr. Charles King 

2. Mr. Dennis Corbello 

3. Mr. Richard Frenzel 
42

ATTACHMENT A

TITLE 33 - NAVIGATION AND NAVIGABLE WATERS 

CODE OF FEDERAL REGULATIONS 

PART 20 RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR 

FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD 

SUBPART J - APPEALS 

[REDACTED]