UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

JOHN F. KILGROE 

Respondent. 

Docket Number: CG S&R 04-0101 

CG Case No. 2010993 

DECISION AND ORDER 

Issued: October 4, 2004 

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Issued by: HonParlen L. McKenna, Administrative Law Judge 

Appearances: 

For the Coast Guard 

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Petty Officer Collin Croft 

U.S. Coast Guard 

Marine Safety Office I Group 

Los Angeles - Long Beach 

Investigations Department 

1001 S. Seaside Avenue, Building 20 

San Pedro, California 90731-0208 

For the Respondent 

Mr. John F. Kilgroe, prose 
PRELIMINARY STATEMENT 

On March 2, 2004, the Coast Guard filed a Complaint against the Respondent's Coast 

Guard issued Merchant Mariner's Document (hereinafter sometimes referred to as MMD). The 

Coast Guard alleged that the Respondent was incompetent because he was unable to safely 

perform the required duties as wiper while serving aboard the USNS SEA Y. The jurisdictional 

allegations in the Complaint listed Respondent's address, telephone number, and MMD number. 

The Complaint also alleged that the Respondent was acting under the authority of his MMD, by 

serving as a wiper aboard the USNS SEA Y as required by law or regulation. On March 2, 2004, 

the Respondent filed an Answer admitting to the jurisdictional allegations and denying the 

incompetence allegations. The Coast Guard filed a Motion to Amend the Complaint on March 

15, 2004, seeking to change the title of the factual allegation from "Incompetence" to 

"Professional Incompetence." This Motion was the result of the Respondent's prehearing 

complaint that the all inclusive charge of"incompetence" was vague and lacked specificity. The 

undersigned agreed an~ directed the Coast Guard Investigating Officer to amend the complaint. 

On :rv:t:arc~2lJU2J.~e Coast Guard1iieQiisWitness/Exh16ifi:ist, a Motion for 

Telephonic Testimony, and a Motion for Discovery seeking to compel production of documents. 

The undersigned granted the Motions on March 22, 2004. 

A hearing in the above-captioned case was held on March 30, 2004. At the hearing, 

fifteen exhibits.were admitted into evidence, and two witnesses testified as part of the Coast 

Guard's case. The Respondent was the only witness to testify as part of his case, and six exhibits 

were admitted into evidence at Respondent's request. The undersigned admitted one exhibit into 

the record sua sponte. . 

2 
The Respondent's merchant mariner's document was presented at the hearing for review 

by the undersigned. After reading it's information into the record, the Respondent's merchant 

mariner's document was returned to him. (Tr. at 102). Since the conclusion of the hearing, 

several post-hearing motions have been filed. On April 5, 2004, the Respondent filed a Motion to 

Reopen along with a Motion to Dismiss. Therein, the Respondent argued that (1) under 46 CFR 

12.25-10 there is no professional competency requirement for a wiper; (2) the Coast Guard 

stipulated Respondent was professionally competent; (3) Respondent is competent because he 

sailed for 61 days without disciplinary action being taken against him and he was not discharged 

for cause; ( 4) the Coast Guard witnesses lacked credibility; ( 5) if a missing email cannot be 

obtained, testimon)liofMr. Wood should be struck; and (6) Respondent raised objections to 

Coast Guard's exhibits which were admitted at the hearing. In response to this motion, the Coast 

Guard argued: (1) Respondent's motion is untimely since it was not filed before the hearing 

concluded and (2) the maritime industry sets the standards for incompetence. 1 

The Re&pondent filed a Reply to Coast Guards response to his Motion for Dismissal on 

May 12, 2004 basically repeating the above-recited arguments. The Coast Guard filed an 

objection to Respondent's Reply. On May 13, 2004, the Respondent filed a "Supplement Reply 

to the Coast Guard's Response to Motion for Dismissal". On May 12, 2004, the Respondent 

filed a "Motion for Sanctions and Dismissal" in which he sought to dismiss the Complaint 

alleging the Coast Guard failed to provide or permit discovery. The Coast Guard filed an 

objection to this Motion on May 12, 2004. 

1 On May 3, 2004, the Coast Guard responded to several of Respondent's post-hearing motions in a single brief 

entitled "Reply to Respondent's Motion to Reopen Motion for Dismissal of Charges, Motion to Dismiss or 

Disqualify Judge McKenna, Motion to Subpoena or to Strike the Testimony of Mr. Wood or Mr. Vint, and Request 

(for Lt. Granquist) to call and threaten the shipping Company." This Response is hereinafter referred to as "Coast 

Guard's objections." 

3 
On May 12, 2004, an Order issued directing the parties to notify the undersigned if they 

intended to file proposed Findings of Fact or Conclusions of Law. Both parties filed a Notice of 

their intent to file post-hearing arguments which were subsequently filed. 

On May 18, 2004, the Respondent filed a Motion to Admit certain newly proffered 

Exhibits. In this Motion, the Respondent sought to admit a "Motion for Discovery," a 

"Declaration of Archie Morgan In Opposition for Summary Judgment," various "Certificates of 

Training," "Respondent's Arbitration Brief," and the "Coast [Guard's] Witness and Exhibit 

List." The Respondent filed a Second Motion to Admit on June 1, 2004. In addition to the 

exhibits the Respondent sought to have admitted in his first Motion to Admit, the Respondent 

sought to have the following items admitted into evidence: (1) the Memorandum of 

Understanding :between American Ship Management and Seafarers' International Union; (2) the 

Respondent's "Motion to Dismiss or Disqualify ALJ McKenna;" (3) the Respondent's 

"Supplement to: Motion to Dismiss or Disqualify ALJ McKenna;" (4) the Coast,Quard's Reply 

with Motion for filing Extension; (5) the Respondent's "Second Supplement to Motion to 

Dismiss or Disctuaiify 1?-LJlVlCKei1ffil;"1QJlfie Responelem'S'1V10fion to Clarifytne Recorel";(7 

the Respondent's "Request to Grant Full Disclosure of Ex Parte Communication"; (8) the ,· 

Respondent's "11l~rd Supplement to Motion to Dismiss or Disqualify ALJ McKenna;" (9) the 

Undersigned's Orders of May 11, 2004 and May 12, 2004 ruling on Respondent's "Motion to 

Dismiss or Disqualify ALJ McKenna" and "Supplement to: Motion to Dismiss or Disqualify 

ALJ McKenna;~' .and (10) the Respondent's letter to Petty Officer Croft. 

Since the relevant portion of the Memorandum of Understanding between4American Ship 

Management and Seafarers' International Union was admitted into evidence at the hearing, it is 

already part of the record (See 33 C.P.R. § 20.903). In addition, all Motions and other pleadings 

4 
are also part of the record in this case. Therefore, Respondent's "Motion to Admit and Number 

or Letter Exhibit" and "Second Motion to Admit and Number or Letter Exhibits" are dismissed 

as Moot. 

On June 2, 2004, the Respondent filed a "Brief for Decision, Including a Motion to 

Dismiss under 46 U.S.C. § 11502(d), arguing that the judge has refused to adequately address his 

Motion to disqualify, along with his conditional Motion to reopen."2 In this pleading, the 

Respondent argued that: (1) the evidence from the USNS SEA Y should be excluded because a 

logbook was not kept; (2) the Amended Complaint must allege Respondent did or failed to do 

some act; (3) the court proceeded over Respondent's objections that he did not receive discovery 

and adequate allegations; (5) Respondent properly disembarked the vessel; (6) the Coast Guard 

did not prove incompetence; (7) the Coast Guard's evidence is entitled to no weight or is 

insufficient to establish a prima facie case; (8) the undersigned improperly excluded 

Respondent's l~tterto Petty Officer Croft dated March 22,2004. All of these issues, will be 

addressed herein~ ,'·' 

FINDlNGS-o-F-FA.-eT---------------

1. The United States Congress has passed comprehensive legislation to promote safety of 

life and prope~ at sea. See 46 U.S.C. Subtitle II. 

2. The purpose of suspension and revocation proceedings is to promote safety at sea. See 

46 U.S.C. § 7701 (a); 46 C.P.R.§ 5.5. 

3. The Respondent is a holder of a United States Coast Guard issued Merchant Mariner's 

Document. The Document authorizes the Respondent to engage in the following entry-level 

work activities: Ordinary Seamen, Wiper, Steward's Department (food handler). (10 Ex. 1). 

2 Hereinafter referred to as "Brief for Decision" 

5 
4. The United States Coast Guard has charged the Respondent with "Professional 

Incompetence" while serving on-board the USNS SEA Y because he "was unable to safely 

perform his required duties as a wiper". 

5. Since the factual allegations in the Complaint do not encompass the Respondent's 

endorsements as an Ordinary Seaman or steward's department (F .H.), those endorsements are 

not at issue herein. However, assuming arguendo that such endorsements were subsumed within 

the penumbra of the Complaint, the Coast Guard failed to demonstrate by a preponderance of the 

evidence that the Respondent was "professionally incompetent" to hold such endorsements. 

6. The USNS SEA Y is a vessel operated by American Ship Management I Patriot Contract 

Services for the U.S. Navy Military Sealift Command. (10 Ex. 2). The USNS SEA Y is 69,365 

gross tons. (Resp't Ex. B). The Respondent signed Shipping Articles for a 120 day minimum 

tour of duty. (10 Ex. 2). 

7. Respondent was a wiper on board the USNS SEAY from January 10,2003 to March 11, 

2003 --approximately 61 days. The Respondent was told to either resign or be fired for cause. 

(10 Ex. 2). The fact th1:1t the Respondent sailed for 61 days without discip1.1nary act10n does not 

prove that he was prof~ssionally competent from a safety standpoint given the overwhelming 

evidence of record to the contrary. 

8. This was his first voyage in the engine department after obtaining a Coast Guard issued 

Document. (10 Ex. 3; 10 Ex. 13; Resp't Ex. B). 

9. A wiper is an entry-level position that does basic cleaning and gofer work. A wiper in the 

engine room should be able to perform basic mechanical work and provide assistance to other 

members of the engine department. (10 Ex. 7; 10 Ex. 9). 

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10. On March 11, 2003, the Respondent agreed to resign and a Certificate of Discharge was 

executed. The document was signed by the Respondent and the Captain of the USNS SEAY. 

(10. Ex. 3) 

11. Mr. Bob Vint, First Engineer aboard the USNS SEA Y, prepared a performance 

evaluation for the Respondent from January 10, 2003 to March 11, 2003. Mr. Vint wrote: 

"JOHN IS A WILLING AND PLEASANT WORKER WITH A 

GREAT ATTITUDE. HOWEVER HE DOES NOT POSSESS 

EVEN THE RUDIMENTARY SKILLS NECESSARY TO BE 

EFFECTIVE AS A WIPER. HE CANNOT REMEMBER 

INSTRUCTIONS FROM ONE MINUTE TO THE NEXT 

ALTHOUGH HIS MEMORY OF EVENTS LONG PAST APPEARS 

TO BE EXCELLENT. HE HAS NO UNDERSTANDING OF 

TOOLS AND DOES NOT SEEM TO POSSESS THE MOTOR 

SKILS NECESSARY TO USE THEM PROPERLY. HE CANNOT \ .. 

CLEAN, SWEEP, MOP OR SUGEE EFFECTIVELY. THE ONLY 

THING THAT HE COULD DO WITHOUT HAVING TO BE 

REDONE ONCE COMPLETED WAS HAUL OR MOVE THINGS. 

IF WE HAD A POSTION AVAILABLE FOR AN ENTERTAINER, 

JOHN WOULD BE OUR CHOICE BUT HE IS ABSOLUTELY NO 

l;JSE IN A MECHANICAL ENVIROMENT. SINCE HE SEEM~ TO 

HAVE NO AWARENESS OF THE DANGERS OF WORKING 

AROUND MOVING MACHINERY, I AM CONCERNED FOR HIS 

SAFETY AND THAT OF HIS FELLOW CREWMEMBERS. JOHN 

WAS ASKED TO GET OFF AT THE END OFVUYAGEA.~ITHE _______ _ 

AGREED". See IO Ex. 4. 

12. Mr. Vintrated the Respondent in the lowest category in skill, knowledge, work habits, 

ability as a supervisor, and administrative ability. See 10 Ex. 4. 

13. The Respondent filed a grievance against Maritime Fireman's Union (and others) 

alleging a violation of his rights under a collective labor agreement with respect to not granting 

him membership in the Union. The Union argued that it's actions were based onMr. Kilgroe's 

failure to satisfactorily perform his duties as a wiper. The Arbitrator ruled that Mr. Kilgroe's 

7 
performance on-board the ship was unsatisfactory and denied the grievance. In so doing, the 

Arbitrator stated: 

"If the Grievant [Mr. Kilgroe] believed Respondent's [Employer] did 

not have a valid basis to ask him to leave the voyage, he could have 

simply refused to leave. At that point, Respondent would have had 

the option of terminating his services, an action he could have 

challenged through the grievance procedure, or of following some 

other path. As it happened the Grievant voluntarily opted to leave the 

voyage, and no further action was taken. See IO Ex. 5. 

14. Importantly, the Arbitrator found that Mr. Kilgroe does not rebut the Unions claim that he 

was "absolutely not" a satisfactory employee. Indeed, the "Grievant does not challenge the 

actual assertions of Respondents [Union, Employer, etc.] so much as he does their right to assert 

them in the first. place." See IO Ex. 5. 

15. The Respondent filed an unfair labor complaint with the National Labor Relations Board. 

The Respondent';s complaint was not acted upon. Mr. Kilgroe filed an appeal therefrom which 

was denied. SeeiO. Ex's 10 and 11. 

16. The USNS SEA Y has a massive engine room space which contains numerous pieces of 

heavy machinery. Thi~ ship has four main diesel engines, each approximately 14,000 

horsepower, with associated clutches and reduction gears, driving two propeller shafts each of 

which are over a foot in diameter. The engine room of the ship is actually a serie~ of 

interconnected rooms containing the main engines, generators, steam generating equipment, 

pumps and mant other pieces of machinery, superheated surfaces, electrical equipment, and 

high-pressure f~el and hydraulic oil pipelines. As a consequence of this potentially dangerous 

environment, anyone working in an engine room must be constantly aware of what is going on 

around them, and they must be concerned with safety at all times. Someone who is not 

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sufficiently safety-conscious or aware of his surroundings poses a danger not just to himself, but 

also to the other members of the engine crew and to the vessel itself. See IO Ex. 6. 

17. Mr. Robert Barret Wood, Jr., was the Chief Engineer aboard the USNS SEAY at all 

relevant times. See IO Ex. 8. 

18. Mr. Woods stated that during "the first few days of the voyage, Mr. Kilgroe was assigned 

jobs where there was no direct supervision. It became evident during this period that he was 

incapable of performing these tasks on his own, and I elected to have supervision provided. I 

was concerned that he might injure himself or one of his shipmates." See IO Ex. 8. 

19. Mr. Woods also stated "that the engineering plant on board the USNS SEA Y is a 

complicated medium speed diesel installation consisting of four 10 cylinder main engines, four 

diesel generator sets, and myriad of supporting equipment such as pumps, compressors, collars, 

and boilers, evaps and the like. There is hot, rotating equipment running at any given time on 

four levels throughout the plant. Mr. Kilgroe's job requirements placed him in close proximity 

to this equipment throughout his workday. I became concerned for Mr. Kilgroe's safety after 

observing him upon several occasion out in the engine room in an apparent stupor and seemingly 

oblivious to his surroundings." See IO Ex. 8. 

20. The "Act of Professional Incompetence" committed by the Respondent is that he could 

not safely perform his duties as a wiper from January 10, 2003 to March 11, 2003. 

21. The fact that the Coast Guard stipulated to the ability of the Respondent to sweep or mop 

a floor is of no moment. The Respondent's presences in the engine department created a safety 

threat to himself, his crewmate's and the vessel. 

9 
22. The Respondent's request for discovery under 33 C.F.R. § 20.309 and 33 C.F.R. § 20.607 

was untimely and procedurally improper. 

23. The fact that the Respondent received an Expeditionary Award for serving during 

Operations Enduring Freedom and Iraqi Freedom does not prove that he could perform the job of 

wiper safely. (See Respondent's Ex. D). 

24. On April 26, 2000, the Respondent submitted to a physical examination. As a result 

thereof, Dr. Perez found that "the applicant has the strength, agility, and flexibility to climb steep 

or vertical ladders; maintain balance on a moving deck; pull heavy fire hoses; rapidly don an 

exposure suit; step over door' sills of24 inches in height; and open or close watertight doors that 

may weigh up to, 56 pounds. See IO. Ex 12. 

25. On more than one occasion, a deck that Respondent had mopped would be clean on one 

side and dirty on the other side, because the Respondent did not change the water in the mop 

bucket. (IO Ex.J3). 

26. When sweeping, the Respondent would leave piles of dirt and would not go back and use 

the dustpan to get the piles. (IO Ex. 13). 

2 7. In the process 9f cleaning the machine shop and disposing of scrap metal, the Respondent 

threw a bucket of tools and drill bits over the side into the ocean. (IO Ex. 13). 

28. On one occasion, the Respondent slipped and fell on some oil. (10 Ex. 13). 

29. Respon<lent's supervisors believed he did not have a mechanical aptitude to perform the 

duties of a wiper. In this regard, testimony was given that when the Respondent first came on 

board he was unable to identify a crescent wrench. Additionally, Respondent had to be given 

instructions several times. (IO Ex. 13). 

10 
30. During two abandon ship drills, the Respondent was not at his assigned lifeboat station. 

(IO Ex. 13). Onboard the USNS SEAY, there was a watch bill where everybody from the 

captain to the wipers were assigned emergency duties in the event of an emergency such as a 

fire, man overboard, or abandon ship. (IO Ex. 13). However, Respondent could not fit into the 

damage control suit and had to switch positions with the other wiper, causing confusion about 

who was supposed to be at which lifeboat. (Tr. at 74, 96-101) During the drill, Respondent and 

the other wiper ended up at the same lifeboat. (Tr. at 96-97). Respondent went back to the piece 

of paper listing crewmembers' stations, and after consulting the list, he again ended up at the 

same station. (Tr. at 100-101). Respondent subsequently clarified which boat he was supposed 

to be on with th~ offict(r in charge, and there were no further problems. (Tr. at 74, 96-101 ). 

·.· , .. 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The C~o.ast Guard proved by a preponderance of the evidence that Respondent, while 

acting under the authority of his Merchant Mariner's Document, was ~;professionally ., 

incmnpetent" to hold a "wiper" endorsement; as it relates to his safety and the safety 

of the crew,and vessel; 

2. Assuming arguendo that the "Ordinary Seaman" and "Steward's Department" 

endorsement are at issue herein, the Coast Guard has not proven by a preponderance '" ''• ·.I . 

of the evidence that the Respondent is "professionally incompetent" to hold these 

endorsements as it relates to his safety and the safety of the crew and vessel; and 

3. The Respondent's Merchant Mariner Document shall be re-issued with the following 

endorsements-- "Ordinary Seaman, Steward's Department (F.H.)." 

11 
DISCUSSION 

The Administrative Procedure Act (APA), 5 U.S.C. 551-59, governs Coast Guard 

suspension and revocation hearings. 46 U.S.C. 7702(a). The APA only authorizes sanctions to 

be imposed if, upon consideration of the record as a whole, the charges are supported by reliable, 

probative, and substantial evidence. 5 U.S.C. 556(d). "The term substantial evidence is 

synonymous with preponderance of the evidence as defined by the Supreme Court." Appeal 

Decision 2477 (TOMBARI) (1988). The burden of showing something by a preponderance of 

the evidence "simply requires the trier of fact 'to believe that the existence of a fact is more 

probable than its nonexistence before [he] may find in favor of the party who has the burden to 

persuade the Uudge] of the fact's existence."' Concrete Pipe and Products of California, Inc. v. 

Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993) (citing In 

re Winship, 397 U.S. 358,371-72 (1970) (Harlan, J., concurring) (brackets in original)). The 

Coast Guard bears the burden of proving the charges by a preponderance of the evidence. 33 

CFR 20.701, 20.702(a). Therefore, the Coast Guard must prove with reliable and probative 

ev1dence that Respondent, more likely than not, committed the violation so charged. 

Before ,aqdressil}g the merits of this case, I will first address Respondent'~ objections to 

the Coast Guard's witnesses and exhibits. The Respondent argues that the Coast Guard's 

witnesses are not 9redible. In these proceedings, the Administrative Law Judge is vested with 

broad discretion to determine witness credibility and resolve inconsistencies in the evidence. The 

findings of the Administrative Law Judge are not required to be consistent with all the evidence 

in the record as long as there is sufficient evidence to justify the finding. Appeal Decision 2639 

(HAUCK) (2003). After carefully listening to the testimony of Steven Robert Callahan and 

Archie Morgan, I specifically find that they were credible. Additionally, I find that the 

12 
Respondent's testimony lacked credibility as to the issue of his ability to adequately perform the 

job duties of a wiper in the engine department from a mechanical and safety point of view. The 

Respondent is a convicted felon (mail fraud). (TR at 78-79). The Chief Engineer of the USNS 

SEA Y indicated that Mr. Kilgroe was a lawyer in his other life. (See IO Ex. 8, pg 7). Whether 

this statement is true or not, the record does so indicate. This issue is important since this 

Respondent failed to properly defend himself and upon realizing his dilemma, has unjustly 

attacked this Judge in an attempt to somehow receive a new trial with a different Judge. Thus, 

the Respondent's credibility concerning his ability to safely perform the duties of a wiper must 

be viewed with a jaundiced eye. 

After the conclusion of the hearing, Respondent filed a "Motion to Reopen to File Motion 

to Dismissal, Motion to Dismiss" objecting to the exhibits admitted into evidence as part of the 

Coast Guard's case. In response, the Coast Guard argued that Respondent's objections were 

untimely. The Respondent filed a Reply arguing that his objections were timely, because the 

Administrative Law Judge assumed all of Respondent's objections went to the wyight of the 

evidence. Under 33 CFR 20.202, the Administrative Law Judge has the power to rule on 

motions and regulate the course of a hearing. In this case, Respondent had an opportunity to 

object to the Coast Guard's exhibits at the hearing and in fact did so. (Tr. at 19-22). Indeed, the 

Respondent made his objections to the Coast Guard's evidence at the hearing, and I do not see 

any legitimate basis upon which to allow Respondent to raise additional objections now that 

could have been raised at the hearing. Therefore, the Respondent's wholesale objections are 

denied. 

In Respondent's "Brief for Decision," he argues that the undersigned shouJd refuse 

evidence of the alleged offenses occurring on the USNS SEA Y, because a log book was not 

13 
produced at the hearing as required by 46 U.S.C. § 11502(d). Section 11502(d) of Title 46 of the 

United States Code provides that the court may refuse to receive evidence if entries required by 

this section are not produced or proved in a subsequent legal proceeding. However, 46 U.S.C. § 

11502(a) provides that entries shall be made in a vessel's logbook when an offense listed in 46 

U.S.C. § 11501 is committed. Since incompetence is not one of the offenses listed 46 U.S.C. § 

11501, an entry in the vessel's logbook was not required by section 11502(a). Th,erefore, 

Respondent's motion to exclude evidence from the USNS SEAY is denied. 

I will now turn to the substantive issues of the case. The Coast Guard's Amended 

Complaint alleges that the Respondent is "Professionally Incompetent" to properly and/or safely 

perform his duti~sas a wiper. The United States Congress has passed comprehensive legislation 

to promote safety of life and property at sea. See 46 U.S.C. Subtitle II. The purpose of 

suspension and revocation proceedings is to promote safety at sea. See 46 U.S.C. § 7701 (a); 46 

C.F.R. § 5.5. Title 46 U.S.C. 7703(1)(B) provides, in pertinent part, that a merchant mariner's 

document may be suspended or revoked if the holder, when acting under the aut~9rity that 

document, commits an act of incompetence. 

A person employed in the service of a vessel is considered to be acting under the 

authority of his/her license, certificate, or MMD when the holding of that license, certificate, or ' . ; 

MMD is required by law, regulation, or by the employer as a condition of employment. 46 CFR 

5.57(a). 

Incompetence is defined as "the inability on the part of a person to perform required 

duties, whether due to professional deficiencies, physical disability, mental incapacity, or any -. ,,· 

combination thereof." 46 CFR 5.31. "The duties required are those which are inherent in the 

license or document at issue." Appeal Decision 2547 (PICCIOLO) (1992); See also Appeal 

14 
Decision 328 (SKJA VELAND) (1949) (Incompetence should be based on a license or certificate 

holder's inability to perform duties required by license or certificate.). For the Coast Guard to 

prove its case, there must be evidence that tends to prove Respondent is unable to perform the 

required duties expected of a holder of a document with a "wiper" endorsement. Appeal 

Decision 2547 (PICCIOLO) (1992). 

On February 23,2004, the Coast Guard served a Complaint against the Respondent under 

46 C.F .R. § 5.31 alleging "Incompetence". The factual allegations assert that 1) the Respondent 

was dispatched to serve as a Wiper onboard the USNS SEA Y for a period of 4 to 6 months; and 

2) from January 10, 20p3 to March 10, 2003, the Respondent was unable to safely perform his 

required duties as ,a Wiper while onboard the USNS SEA Y. 

Pursuant to a preheating objection by the Respondent that the Complaint was vague and 

lacked specificity, the undersigned directed the Coast Guard to amend its Complaint. By Motion 

filed on March ;ll,. 2004, the Coast Guard moved to amend the original charge from 

"Incompetence" to "Professional Incompetence". The factual recitation did not qhange which 

argued that "the. Respondent was unable to safely perform his required duties as a-wiper". 

46 C.F.R. § 12.,25-10 (a) provides that "merchant mariner's documents shall be issued 

without professional e~aminations ... and shall be endorsed for one or more ratings ... ". Thus, a 

merchant mariner document may be issued with only one endorsement, some combination 

thereof, or all of the following: Ordinary seaman, wiper, or steward's department (food handler). ' . ~ ~ ' 

Given this fact,, I find that the only endorsement at issue in this proceeding is the endorsement of 

"Wiper". However, even assuming arguendo that that Coast Guard's Complaint was sufficiently 

inclusive so as to encompass all three endorsements, there is clearly a lack ofpro<;>fthat the 

15 
ordinary seaman and/or steward's department (F.H.) endorsements should be revoked for 

"Professional Incompetence" because of safety considerations. 

This is a case of first impression. Ordinarily, a case of"Professional Incompetence" 

would not lye for a person holding an entry-level merchant mariner's document. This is because 

the duties inherent are minimal and the document is mainly issued for identification purposes. 

See 46 U.S.C. §§ 7302-3. However while the duties inherent in a merchant's mariner's 

document with Respondent's endorsements are minimal, the holder of an MMD must be able to 

safely perform those duties, and if the holder poses a danger to himself, his shipmates or the 

vessel, then the public policy embodied in 46 U.S.C. § 7703(1)(8), 46 CFR 5.31, and 46 CFR 

5.61(a)(9) clearly dictate that such a safety risk be removed. All arguments of the Respondent to 

the contrary are hereby rejected. Importantly, the above-recited Findings of Fact unequivocally 

establish that this Respondent is a danger to himself, his shipmates and the vessel when working 

as a "wiper" in the engine department. Indeed, 46 C.F.R. § 12.25-10 provides, in pertinent part, 

that a "wiper endorsement" authorizes a mariner to serve "in any unqualified rating in the engine 

department". Thus, if the Respondent is a danger in the engine department, the Coast Guard is 

required to REVOKE said endorsement. 

The Coa~t Guard's argues that under Appeal Decision 1636 (MOZIER) (1967), the 

maritime industry sets the competency standards for entry-level personnel, such as a wiper. 

However, neither MOZIER nor any other Appeal Decisions support the Coast Guard's position. 

MOZIER involved a licensed engineer and did not state that incompetence standards are 

determined by the maritime industry. If the Coast Guard's argument were correct and 

incompetence standards for entry-level personnel were established by marine employers, every 

time a mariner was fired from a job, his/her Coast Guard credentials would be subject to 

16 
revocation proceedings. It is only where a "safety" issue is involved for an entry-level merchant 

mariner document position that the Coast Guard has a duty to inject itself into a employeremployee job performance dispute. 

The Commandant has held that, "there is certainly a difference between the ability to 

perform work, and negligence in performing it." Appeal Decision 328 (SKJAVELAND) (1949). 

Negligence and incompetence are not convertible terms, since one may be thoroughly 

competent and be negligent and while a series of acts of negligence or even a single act 

may so indicate the character and mental disposition as to prove incompetency, a well 

qualified and entirely competent person may be negligent on occasion without being 

incompetent. Appeal Decision 328 (SKJA VELAND) (1949). 

While, the Coast Guard proved that the Respondent was a danger to himself, his shipmates and 

the vessel when working as a "wiper" in the engine department, there is no such proof as to his 

performance as an "ordinary seaman" or steward's department (F.H.). Indeed, the Coast Guard 

did not levy cha~ges against the "Ordinary Seaman" and "Stewards Department" endorsements. 

Moreover, the Coast Guard has not submitted evidence of record that the Respondent's work as a 

"wiper" shouldbe_used to fatally impugn his privilege to hold "ordinary seaman" and steward's - ~--~- --------· ·-------·------- ---------------------- -------------------------------.---- ----------------- -- --- - -- ------- ---

department (F.H.) endorsements. It is clear tfiat tfie Responaent's worl<(excludingthe-safe-1~------

component in the engine department) was sloppy and on occasion may have been performed in a 

negligent manner. In this case, proof that Respondent's sweeping and mopping left room for 

improvement is not proof that he is unable to perform the duties required of a holder of an MMD 

with ordinary seamen, or, steward's department (food handler) endorsements. A~though there 

was testimony that Respondent was unable to identify a crescent wrench when he first came on ,_l 

board the USNS SEAY, this was Respondent's first voyage as a wiper in the engine department 

17 
and testimony that when Respondent first came aboard he could not identify a crescent wrench 

implies Respondent's mechanical aptitude improved during the voyage.3 

ORDER 

IT IS HEREBY ORDERED that the "wiper" endorsement for John F. Kilgroe's Coast 

Guard issued Merchant Mariner's Document be, and it herby is, REVOKED; and 

IT IS HEREBY FURTHER ORDERED, that the Coast Guard re-issue the Respondent's 

Merchant Mariner's Document with "Ordinary Seaman" and "Stewards Department" (F.H) 

endorsements. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties' 

representative(s) serves as notice of appeal rights set forth in 33 CPR 20.1001-20.1004. 

(Attachment A).; 

Done and dated on this 41

h day of October, 2004 

Alameda, California 

~ i. ' •• 

Administrative Law Judge 

United States Coast Guard 

3 Additionally, under 46 U.S.C. 7313(b), the ratings of Ordinary Seaman and Stewards Department (F.H.) are entry 

ratings and are not ratings as a qualified member of the engine department. 

18