UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

CHRIS ASSAVEDO 

Respondent. 

· Docket Number: CG S&R 04-0426 

CG Case No. 2141602 

DECISION AND ORDER 

Issued: October 29, 2004 

Issued by: Jeffie J. Massey, Administrative Law Judge 

Appearances: 

LTJG Steve Koch 

LT Boris Towns 

U.S. Coast Guard 

800 David Drive 

Morgan City, LA 

For the Coast Guard 

Chris Assavedo, Pro Se 

For the Respondent 
PRELIMINARY STATEMENT 

On August 12, 2004, the United States Coast Guard ("USCG" herein) initiated an 

administrative proceeding against credentials issued to Chris Assavedo by the USCG. On 

August 16, 2004, Respondent's Answer was received by the Docketing Center. In his Answer 

Respondent denied the bulk of the factual allegations, admitted the jurisdictional allegations, and 

stated the following, as an affirmative defense: "Employer made a clerical error on sea time 

letter." 

A hearing was duly scheduled and convened in New Orleans, Louisiana on October 22, 

2004. Shortly before the hearing date (September 23, 2004 and October 15, 2004) the USCG 

filed two separate Motions to Amend the Complaint. After going on the record, the undersigned 

denied the first Motion to Amend Complaint as moot (it concerned only a proposed change in the 

hearing location, and was superseded by the latter filing). The latter Motion to Amend the 

Complaint was granted. The Respondent was asked to enter an oral answer to the Amended 

Complaint, which he did. The substance ofhis oral answer was the same as his written answer. 

The USCG called one witness, Richard Wells. The Respondent called one witness, Fred 

Willhoft. 

At the end of the testimony, the evidentiary record was closed, and the undersigned 

announced her decision on the record. Further, the undersigned informed the parties that this 

written rendition of the findings of fact and conclusions of law announced on the record would 

be issued. 

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FINDINGS OF FACT 

1. From May 10,2001 to June 10, 2004, Respondent was a holder of a Merchant Mariner's 

License issued by the USCG. 

2. From May 10,2001, to June 10,2004, Respondent was employed by Crescent Ship 

Services, Inc., in compliance with his Merchant Mariner's license. 

3. From May 10,2001 to June 10,2004, Respondent's employment was under the 

authority of and pursuant to the provisions of his Merchant Mariner's license. 

4. During the period May 10, 2001 to June 10, 2004, the Respondent did not serve as 

Captain aboard the vessel MR. LUCIEN for 61 days; did not serve as Captain aboard the 

vessel MR. FATS for 57 days; did not serve as Captain aboard the vessel MR. 

GORDON, JR for 64 days; and, did not serve as Captain aboard the vessel MR. DOC 

for 51 days. 

ULTIMATE FINDINGS OF F'ACT AND CONCLUSIONS OF' LAW 

1. From May 10, 2001 to June 10, 2004, Respondent was employed with Crescent Ship 

Services, during which time he was acting under the authority of his Merchant 

Mariner's License issued by the USCG. 

2. From May 10, 2001, to June 10, 2004, Respondent held a Merchant Mariner's 

License which limited him to serving as a master of steam or motor vessels of not 

more than 50GRT upon inland waters. 

3. During the period May 10, 2001, to June 10, 2004, Respondent did not serve as 

Captain on board any vessel that was greater than 50 GRT. 

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4. The USCG failed to prove by a preponderance of the evidence that sanctions are 

warranted against Respondent's Coast Guard issued license(s) under 46 U.S.C. 7703, 

because the evidence failed to prove a violation oflaw or regulation by the 

Respondent during the period May 10, 2001 to June 10, 2004. 

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 AP A 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) (1998). The burden of proving a claim by a preponderance ofthe 

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 [judge] ofthe fact's existence."' Concrete Ptpe 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)). Under 

Coast Guard procedural regulations, 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 evidence that Respondent more likely than not committed the 

violations charged. 

Title 46 U.S. C. §7703(1)(a) provides that a license, certificate of registry, or merchant 

mariner's document may be suspended or revoked if the holder when acting under the authority 

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of his license, certificate, or document violates or fails to comply with subtitle II of Title 46 of 

the United States Code, a regulation prescribed under subtitle II of the Title 46 of the United 

States Code, or any other law or regulation intended to promote marine safety or to protect 

navigable waters. 

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 CPR 

§5.57(a). !flaw, regulation, or condition of his employment did not require the Respondent to 

have a license or MMD, then the Coast Guard does not have jurisdiction under 46 CPR §5.57(a) 

over the alleged violation oflaw. See Appeal Decision 2620 (COX) (2001). Therefore, the 

Coast Guard must prove Respondent was employed in the service of a vessel when he committed 

a violation of law and Respondent's merchant mariner's credentials were either (1) required by 

law or regulation or (2) as a condition ofhis employment. 

In this case, the evidence clearly showed that during the period May 10, 2001 to June 10, 

2004, Respondent was acting under the authority of his Merchant Mariner credentials because he 

was employed by Crescent Ship Services, Inc. in a position that required him to hold such a 

license. In this case, the issue in dispute revolves around what kind of vessels the Respondent 

worked on during the above-referenced period. The witness presented by the USCG· did not 

have personal knowledge as to what kind of vessels the Respondent Captained during this 

period. Mr. Wells' testimony was limited to events that occurred at the Regional Exam Center, 

and an explanation ofthe processes by which the Respondent sought to (1) renew his license as a 

master of steam or motor vessels of not more than 50 GRT upon inland waters; and (2) raise the 

grade of his license to the level of master of steam or motor vessels of 100 GRT (See Exhibit 10-

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8). Mr. Wells' testimony was very helpful in that he was able to complete the record in this case 

as to these key aspects ofthe renewal process. While I find his testimony entirely credible, it 

simply was not dispositive ofthe ultimate issue before me. 

This case would not have been brought but for the issues raised by a "sea time letter" 

submitted by the Respondent's employer, in conjunction with Respondent's January 2004 

application for renewal and upgrade ofhis license (See Exhibit 10-09). On its face, that letter 

indicates that during the period May 10, 2001 to January 12, 2004 (the date of this sea time 

letter), the Respondent was employed outside ofthe purview of his license. Despite the fact that 

Respondent's employer contacted the USCG by way ofletter dated July 30, 2004, and explained 

that he had made a clerical error when he wrote the January 12, 2004, letter (Exhibit 10-11), the 

USCG decided to proceed with the initiation of this administrative action against the 

Respondent's license. 

Respondent chose not to testify in his own behal£ Instead, his employer, Fred Willhoft, 

the author of the letters in question testified. I find Mr. Willhoft's testimony to be entirely 

credible. I find that his January 12, 2004, letter was factually mcorrect. I find that his 

subsequent written attempts to clarify the issue to the satisfaction of the USCG (Exhibits 10-11 

and Respondent's Exhibit 1, another letter from Mr. Willhoft dated July 26, 2004) are entirely 

corroborated by his testimony at the hearing. 

Finding Mr. Willhoft's testimony to be entirely credible leads me to the conclusion that, 

at no time during the period in question, did Mr. Willhoft assign the Respondent to work, or 

allow him to work, on any vessel that was in violation of his license. Accordingly, I find that the 

USCG failed to prove, with reliable and probative evidence, that Respondent more likely than 

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not committed a violation oflaw or regulation by operating a vessel outside of the purview of his 

license during the period May 10, 2001 to June 10, 2004. 

ORDER 

IT IS HEREBY ORDERED that the administrative action against Respondent Chris 

Assavedo's Coast Guard issued licenses shall be dismissed and removed from the docket. 

PLEASE TAKE NOTICE that service ofthis 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 October 29,2004 

New Orleans, Louisiana 

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