UNITED STATES OF AMERICA 

DEPAItTILIENT OF TUNSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GIJARI); 

Complainant, 

X'S. 

License Number 764942 

Docket Number: 99-0285 

ISSUED TO: 

GARY 13. EVANS 

Respondent 

DECISION AND ORDER 

PETER A. FITZPATNCK 

United States Administrative Law Judge 

APPEARANCES: 

FOR THE COAST GUARD 

1,CDR R.J. Raksnis 

CWO Stephen E. Sattler 

United States Coast Guard 

Marine Safety Office 

1502 23'"treet 

Wilmington. North Carolina 28405 

FOR TI-IE RESPONDENT 

Geoffrey A. Losee, Esq. 

ROUNTREE & SEAGLE, 1,L.P 

24 19 Market Street 

Wilmington. North Carolina 28403 
1. 

STATEMENT OF THE CASE 

On October 19, 1999 the Coast Guard Investigating Officer filed a Complaint 

against the Respondent containing the following pertinent Jurisdictional and Factual 

Allegations: 

JURISDICTIONAL ALLEGATIONS 

The Coast Guard alleges that you failed to report the marine casualty 

following the allision between the barge, MARINERS HARBOR, and 

the Thomas Rhodes Highway Bridge as it was being towed by the 

tug, NEPTUNE, along the North Cape Fear River. This is a direct 

violation of the reporting requirements listed in 46 CFR 4.05-1. 

Additionally, the Coast Guard alleges that you served as Operator of 

the tug NEPTUNE without holding the proper credential in violation 

of 46 CFR 15.40 I. 

1. Respondent's address is as follows: 

2. 

IRespondent holds the following Coast Guard-issued credential(s): 

License Number 764942. 

3. Respondent acted under thc authority of that licensc on December 3 1, 

1998, by: serving as Operator onboard the tug, NEPTUNE (O.N. 

D593075), as required by law.or regulation. 

FACTUAL ALLEGATlONS - MisconductNiolation of Regulation 

1. The Coast Guard alleges that on December 3 1, 1998, the Respondent 

was serving as the Operator onboard the Tug NEPTUNE (Official 

Number D593075) as it was towing the barge, MARINERS 

HARBOR (Official Number D26 1965). northbound atong the North 

Cape Fear River; 

2. The Coast Guard alleges that during the transit, the MARINERS 

HARBOR allided with the Thomas Rhodes Highway Bridge causing 

approximately $7,000 damage to the fendering system; 
3. The Coast Guard alleges that the Respondent failed to report the 

allision with theThomas Rhodes Highway Bridge to the cognizant 

Officer in Charge, Marine inspection as required by the Notice of 

Marine Casualty regulations found in 46 CFR 4.05-1; 

4. The Coast Guard alleges that the Respondent served as Operator 

onboard the NEPTUNE without holding the proper towing 

endorsements and appropriate tonnage allowances. The NEPTUNE 

is a documented towing vessel of 190 gross tons under the laws of the 

United States. The Respondent's license authorizes service as, 

"Master of Near Coastal Steam or Motor Vessels of Not More Than 

100 Gross Tons." 

The proposed order sought was 6 months Outright Suspension of Mr. Evans' 

Coast Guard License. 

Mr. Evans denied all the allegations of the Complaint and requested a hearing. 

The case was assigned to this Judge by Notice of Assignment dated October 21, 1999. 

The hearing was set for Wilmington, NC on December 1, 1999. Subsequently, Mr. 

Evans sought a one-month continuance until January, 2000 and the request was granted. 

His request for a change of venue to Port Canaveral, Florida, however, was denied. 

Subsequently, the hearing was set for January 20,2000 at the Federal Courthouse at 

Wilmington by Order dated November2G', 1999. 

Later, a second continuance was requested by Mr. Evan's counsel on January 10 

and I scheduled a PreHearing Conference by telephone to hear that motion on January 

12,2000. Mr. Losee, Respondent's attorney, and LCDR Raksnis were present. Counsel 

indicated that he had been retained on the loth and needed time to prepare. The Coast 

Guard asserted that the witnesses had already been rescheduled once and that it would be 
diffjcult to reschedule again. I luled that the hearing would proceed as scheduled but that 

I would be receptive to a 30-day continuance for the presentation of the defense. 

The hearing convened as scheduled and the Respondent, his counsel, and the 

Investigating Officers were present. The Coast Guard presented seven witnesses 

(including the Respondent, Gary Barton Evans) and sponsored 20 exhibits. The list of 

witnesses and exhibits is set out in Attachment One. 

At the outset, the investigating Officer requested the opportunity to present 

certain distantly located witnesses by telephone. That motion was granted. (Transcript 

of January 20, 2000 (hereinafter referred to as Vol. I) Tr. 9). Also, the Coast Guard's 

motion to allow the submission of the unswom statement of Mr. Vive Griffin, a witness 

who died after the incident involved but before the hearing, was reserved pending the 

proffer of the document. (Vol. I Tr. 10-1 I). There were no other preliminaty matters. 

(Vol, 1 Tr. 11-12). 

At the conclusion of that session I granted Respondent's request for a continuance 

to present the defense. The second session was set for March 8,2000 at Wilmington. 

Another Pre-Hearing Conference by telephone was held the week before the March 8, 

2000 hearing and at that time Mr. Losee Sought leave to file affidavits with a Motion for 

Summary Judgment. That request was opposed by the Investigating Officer and denied. 

(Transcript of March 8,2000: (hereinafter referred to as Vol. 11) Tr. 5-7). 

At the outset I ruled that 10 Exhibits 8 and 9 were not admitted. I continued my 

previous ruling to reserve a decision on the admissibility of 10-7. (Vol. I1 Tr. pp. 13-17). 
I have now examined the law with regard to the unsworn statement of the 

deceased potential witness, Vive Griffin, and found that this issue is addressed Subpart 1-1 

- Evidence in 33 C.F.R. 20.802. In relevant part it states: 

(i '20.802 Adinis$ibility 6f ~Viiiehce. 

(a) The ALJ may admit any relevant oral, documentary, or 

demonslrative evidence, unless privileged. Relevant evidence 

is evidence tending to make the existence of any material fact 

more probable or less probable than it would he without the 

evidence. 

(b) The ALJ may exclude evidence if its probative value 

is substantially outweighed by the danger of prejudice, by 

conhion of the issues, or by reasonable concern for undue 

delay, waste of time, or needless presentation of cumulative 

evidence. 

Mr. Griffin's statement reflects his discussion with Respondent on New Year's 

Eve and is substantiated by testimony of Mr. Harper and Mr. Goff. I find the statement is 

relevant to the material issues in this case. I do not believe the danger of prejudice or 

confusion of the issues outweighs its probative value. Accordingly, 10-7 is admitted. 

See Appeal Decision No. 2603 (HACKSTAFF), pp 4-5 (1998). 

At the second session, Mr. Evans was called by his counsel and resumed his 

testimony. Mr. Darrell Culp also testified for the defense. One exhibit (Respondent's A) 

-. 

was offered and admitted. After both s:des rested and closing arguments were presented, 

1 indicated that I had "grave reservations with respect to the credibility of Captain Evans' 

testimony." (Vol. I1 Tr. 133). I announced that I felt Evans was not telling the truth. I 

also indicated that the evidence in support of the Coast Guard's case was "very powerful" 

and " . . . a very strong case [was] made out here on these matters [sic]." (Vol. I1 Tr. 

134). I took the case under advisement to carefully review the evidence but ordered that 

Mr. Evans' Coast Gwzd License be impounded pending the decision. 
In view of the fact that Evans was alleged to have hit a highway bridge and also 

failed to notify the Coast Guard of the incident, his continued operation under his license 

during the interim, in light of the "powerful" evidence presented, was not appropriate 

since he constituted a danger to life and property. 

The case is now ripe for decision. 

11. 

FINDINGS OF FACT 

1. Gary B. Evans is the holder of United States Coast Guard License No. 764942 which 

authorizes him to serve as Master of Near Coastal Stream or Motor Vessels of Not 

MoreThan 100 Gross Tons. The license was issued at Miami on September 27, 1995 

and expired 5 years from that date. 

2. On December 3 I, 1998 and January I, 1999, the tug NEPTUNE (O.N. D593075) was 

a United States vessel owned by Inter Development Corporation, Miami, Florida. 

The Certificate of Documentation issued to the vessel on November 19, 1998 and in 

effect on the dates above, shows that the vessel displaces 190 Gross Tons. (10-13). 

3. The Certificate of Admeasurement issued by the Coast Guard to BRENTON (the 

previous name of the NEPTUNE) shows that the vessel by that measurement system, 

displaced 190.97 Gross Tons and 101 Net Tons. (Id). 

4. The barge MARINERS HARBOR is an unmanned, steel, tank barge which displaces 

1278 Gross Tons. It is 229.40 feet in length and 42.9 feet at the beam. It has a draft 

of 14.5 feet. (10-1 5). 

5 On December 3 I. 1998 the NEPTUNE and the MARINERS HARBOR were moored 

at Roderick Marine Terminal at Peter's Point on the Northeast Cape Fear River. (Tr. 
38-39). Coast Guard Chief Petty Officer W.E. Olmstead boarded the MARINERS 

HARBOR on the morning of December 3 1,1948 accompanied by Petty Off~cer 

Chalk. (Tr. 40-41). The barge was inspected to determine ". . . it was not carrying 

any material that it was not supposed to be." (Tr. 42). Olmstead found that all the 

tanks "were very dry." (Id). The barge was "empty and it was very tight." (Tr. 43) 

Chief Olmstead conferred with the on-site representative (Hardin) and was 

advised that the NEPTUNE brought the MARINERS HARBOR to the terminal. 

(Vol. I Tr. 43). The Coast Guard officials departed in mid to late morning on that 

same day (December 3 I). (Vol. I Tr. 44). 

6. The following morning (January l), Chief Olmstead drove past Roderick Terminal on 

his way to work at the Marine Safety Office, Wilmington and observed that the 

NEPTUNE and the MARINERS HARBOR were not there. (Vol. I Tr. 46). Once at 

the office. he called various sources and discovered that the flotilla had been refused 

passage by the bridge tender at the Navassa Railroad Bridge on New Year's Eve. 

(Vol. I Tr. 47). He also determined that it had eventually passed through that draw 

and was moored further up stream at the High Rise Services Terminal. (Vol. I Tr. 47- 

-. 

48). - 

7. The Thomas Roads Highway Bridge spans the North Cape Fear River between Point 

Peter and the Navassa Railroad Bridge. (Vol. I Tr. 159). The only route for a tug and 

barge between Point Peter and the High Rise Services Terminal is up the North Cape 

Fear River and under the Thomas Rhodes Highway Bridge. (See Vol. I Tr. 160-1 61). 

8. On the evening of December 3 I, 1998 at approx~mately 1800, Kenneth Goff was 

serving aboard the tug CAPTAIN JIMMY as Captain. He was downbound from the 
International Paper Plant at Riegelwood . (Vol. I Tr. 162. 178). He was monitoring 

Channels 13 and 16 and overheard the bridge operator on the Navassa Railroad 

Bridge warn another flotilla that it was about to hit the bridge. (Vol. I Tr. 163). 

9. As Goff approached the Navassa Railroad Bridge he observed the NEPTUNE and a 

barge awaii~ng his passage below the bridge at the "old fertilizer dock." (Vol. I Tr. 

164-166). The Captain of the NEPTUNE asked if Goff would assist. (Vol. I Tr. 

166). Goff declined but relayed the request to his supervisor. Kd). At the time the 

NEPTUNE was made up on the barge's "hip." (Vol. I Tr. 164). - 

10. The CAPTIN JIMMY continued down river and approached the Thomas Rhodes 

Bridge. Goff noticed the red fender lights on one end were out. He also observed that 

the handrail and decking on the fender system were damaged. (Vol. I Tr. 169). 

11. During the approximately 18-24 hours on Goff's trip up to the paper plant and retum, 

there was no other river traffic except the NEPTUNE. (Tr. 170-17 1). Very little 

commercial traftlc transits the North Cape Fear River near the High Rise. (Vol. I Tr. 

17 1 ). A dinner boat, the HENRIETTA, is seen in the area "once in a while." (Ld). 

Goff reported the damage he had seen to his supervisor. (Vol. I Tr. 173). 

12. The Coast Guard was notified of the damage to the bridge by William Murrell, 

Hanover Towing, on the Tuesday following New Year's Day. (Vol. I Tr. 49). 

Immediately, Chief Olmstead dispatched Petty Officer Meier to the site and he took 

photographs of the damage to the bridge that same day (January 6: 1999). (Vol. I Tr. 

99-1 03). (I0 Exhibits 5, 5). Me~er also visited the High Rise terminal and took 

pictures of the MARINERS HARBOR that same day. (Vol. I Tr. 107) (10-5,6). 
13. On January 27, Chief Olmstead, another Coast Guardsman, and Officer T. Eason of 

the Wilmington Police Department inspected the Thomas Rhodes Bridge and took 

wood and paint samples finm the most heavily damaged area. (Vol. I Tr. 60). Four 

samples were taken, placed in separate envelopes and sealed with tamper-proof tape. 

(Vol. I Tr. 61). Next, the team attempted to get samples from the MARINERS 

HARBOR at the High Rise Terminal but the heavy flotsam and debris in the water 

prevented them from approaching the barge. (Vol. 1 Tr. 61-62). The samples from 

the bridge were brought to the Marine Safety Office and secured in the vault. (Vol. I 

Tr. 62-63). 

14. Over one month later, on February 17, 1999 Petty Officer Meier and Fireman 

Shannon Davis visited the MARINERS HARBOR at the High Rise and took four 

paint samples fiom the bargc. (Vol. I Tr. 1 13-1 14). See I0 Exhibits 2,6-5,6-7). 

Each sample was identified and sealed in a separate envelope and secured at the 

Maine Safety Office. (Vol. 1 Tr. 114-1 16). 

15. Subsequently, all the samples were sent by Certified U.S. Mail to the North Carolina 

State Bureau of Investigation Laboratory with a Request for Examination of Physical 

Evidence. (10-3)(Vol. I Tr. 188-189r There, the material was were received by D. 

Butwell and delivered to Mrs. B. Flanagan; Special Agent and Forensic Chemist. 

) Eight samples were involved - four from the bridge and four from the 

MARINERS HARBOR. (10-3). Each sample was examined by microscope to 

determine the physical characteristics of the material. (Vol. I Tr. 193). Some of the 

material was selected and subjected to a microchemical analysis. Solvents and 

reagcnts are applied to determine if there was a change in physical properties. (Vol. 1 
Tr. 193). Next, three samples (Item Nos. 3,5, and 6) were subjected to infrared 

spectroscopy to dcternline the organic composition. ('Id). Finally, the sanlples were 

subjected to elemental analysis using a scanning electron microscope with energy 

dispersive x-rays. (Tr. 193). After all the tests were completed, Mrs. Flanagan 

described the results as follows (Vol. I Tr. at 198-200): 

"Q Please report the results of your analysis in this case, in the 

analysis of samples three, five and six. 

A The examination on items three, five and six revealed that they 

all thfee consisted of paint chips having a black, dull black, coarse - 

layer, and an orange red, rather coarse layer also. And the testing that I 

performed showed that there were no differences in their physical or 

chemical composition. And so, I concluded that they could have 

originated from the same source. 

Q And, once again, if you could refer to SBI5 form and repeat 

what samples three, five and six are. 

A Item three is wood fragments from the Thomas Rhodes Bridge 

piling. Item five is from the bow of MARINERS Harbor and also item 

six from the boat. 

XXX 

Q Were you able to match the paint samples taken from items 

three. five and six? 

A Yes, 1 determined th& they had the same organic and inorganic 

composition. 

Q Are you confident that your test uras completed in accordance 

with your lab practices? 

A Yes. it was. 

Q Did you complete a written report of your analysis and your 

conclusions? 

A Yes, I did." 
Mrs. Flanagan also observed that the paint chips in sample number 3 (Item 3) were 

imbedded into the wood. (Tr. 199) and it was likely that resulted from an impact. 

16. TheNorth Carolina State Bureau of Investigation Laboratory Report issued on April 

9, 1999, concluded (10-1 I): 

"The paint chips in Item 3 were compared to the first two layers of 

paint in Items 5 and 6 and it was determined that they were physically 

and chemically consistent. Therefore, the paint chips in Items 3, 5: and 

6 could have shared a common origin." 

The report describes Item 3 as a sample taken from the bridge piling. Item Nos. 5 

and 6 are paint samples from the barge. (10-1 1). 

17. James Harper is a Bridge Operator for the CSX Railroad. On the night of December 

31, 1998 and early morning of January 1, 1999, he was operator of the Hilton 

Railroad Bridge and overheard the conversation between the Navassa bridge operator 

and the Respondent on the NEPTUNE. (Vol. I Tr. 143-144). Vive Griffin was the 

operator of the Navassa Railroad Bridge during those same hours. (Vol. I Tr. 145). 

Mr. Griffin died in the interim between the incident on December 31, 1998 and the 

date of the hearing on January 20,2000. (Vol. I Tr. 147). 

18. Darrell Culp was serving as an unlic2nsed engineer aboard the NEPTUNE on 

December 31, 1998 and January 1, 1999. (Vol. I1 Tr. 77-78). Mr. Culp, who was in 

the engine rooln of the NEPTUNE during the flotilla's transit under the Thomas 

Rhodes Bridge, did not feel the vessel hit anything. (Vol. I1 Tr. 81-82). The engine 

log maintained by Culp may not contain accurate data. (Vol. 11 Tr. 99-1 00). 
Ill. 

U1,TIMATE FINDINGS OF PACT AND CONCLUSIONS OF LAW 

1. The Respondent, Gary B. Evans and the subject matter of this hearing are properly 

within the jurisdiction of the United States Coast Guard in accordance with 46 U.S.C. 

5 7703 (West Supp. 1999). 

2. On December 3 I, 1998 and January I, 1999 the NEPTUNE was owned by Inter 

Development Corporation, Miarni Florida and was endorsed for both the Coastwise 

Trade and for Registry. The vessel displaces 190 Gross Tons. 

3. Gary B. Evans was required to hold a Coast Guard License to operate the NEPTUNE. 

He held such license but it was limited to 100 Gross Tons. 

4. While he was serving as Operator of the NEPTUNE, Gary B. Evans negligently 

allided with the Thomas Rhodes Highway Bridge on the North Cape Fear River. 

5. Gary B. Evans failed to notify the cognizant Officer in Charge, Marine Inspection as 

required by 46 C.F.R. 9 4.05-1 

6. Gary B. Evans operated the NEPTUNE without holding proper authority in that his 

license was limited to vessels of 100 Gross Tons. The NEPTUNE displaces 190 

Gross Tons - 

-. 7. All Jurisdictional and Factual Allegations asserted against Gary B. Evans in the 

Complaint filed on October 19, 1999 are PROVED by a Preponderance of the 

Evidence 

IV. 

OPINION 

1. The Coast Guard has jurisdiction of Respondent and this matter pursuant to 46 

U.S.C.$ 7703, which states that a Merchant Mariner's document may be suspended or 

revoked for Misconduct or Negligence. The Coast Guard has the burden of proving 
the allegations of the Complaint by a preponderance of the evidence or "by 

substantial, reliable and probative evidence." See 33 C.F.R. 20.701, 702; Appeal 

Decisions No. 2468 (LEWIN), 2477 (TOMBARI), 2603 (supra). See also, Dept. of >-- 

Labor v. GreenWidh Colleries, 51 2 U.S. 267 (1994); Steadman v. SEC, 450 U.S. 91, 

100- 103 (1981). The proceeding is conducted under the Coast Guard Rules of 

Practice at 33 C.F.R. Part 20 and the Administrative Procedure Act, 5 U.S.C. (j 55 1 et 

seq. 

The allegations are that the Respondent allided with the Thomas Rhodes - 

Highway Bridge, on December 3 1, 1999; that he failed to notify the Coast Guard of 

the incident as required by regulation; and that he was not properly licensed to 

operate the NEPTUNE in that his license was limited to vessels of not more than 100 

Gross Tons (the NEPTUNE displaces 190 Gross Tons). The allegations are 

PROVED by a Preponderance of the Evidence. 

2. Turning first to the limitations of the Respondent's license, the evidence reveals that 

the Coast Guard issued a Certificate of Documentation to the NEPTUNE on 

November 19, 1998. (10-1 3). That document described the vessel's tonnage as 190 

Gross and 101 Net Tons. (Id). - ThaJGertificate was on the NEPTUNE at the time of 

the incident here. (Vol. I Tr. 244-245). Indeed, the Respondent himself 

acknowledged that fact (Id) and testified that he did not really dispute that he was 

wrong in this regard. (Vol. I Tr. 238). 

in tiew of the express limitation on Coast Guard License No. 764942, issued to 

the Respondent on September 27, 1995 restricting service to vessels of not more than 
100 Gross Tons, and the NEPTIJNE'S Certificate of Documentation indicating that 

the vessel's Gross Tonnage is 190, this allegation is clearly PROVED. 

3. The principal dispute at the hearing involves the allegation that the Respondent 

allided with the Thomas Rhodes Highway Bridge on the evening of Decemher 3 1, 

1998 causing $7,000 to the fendering system. Mr. Evans denies that the NEPTUNE 

hit the bridge while under his command on the 31". (Vol. I1 Tr. 28). Indeed, Evans 

testified at the hearing that earlier that morning a Coast Guard boarding team 

approached the tug and barge by patrol boat and asked us "when we came in." (Vol. 

I1 Tr. 2 1). "1 gave them that infonnation." (Id). Evans also stated that the Coast 

Guard team (including BM2 Meier) requested infonnation on a bridge (Thomas 

Rhodes Highway Bridge) which they noticed had been damaged that morning. (Vol. 

11 Tr. 21-22). Moreover, Evans also testified that he noticed the damage when he 

went under that bridge later that same evening. (Vol. I1 Tr. 23). 

The evidence in support of the allegation is described below. First, it is 

undisputed that the NEPTUNE, with the MARINERS HARBOR on the hip, departed 

Peter's Point at approximately 1700 on December 3 1, 1998, bound for~i~h Rise 

Terminal Service on the North Cape.Eear River. (Vol. I1 Tr. 19,251. That route 

required the flotilla to pass under the Thomas Rhodes Highway Bridge. (Vol. I Tr. 

160- 162). When the flotilla approached the Navassa Railroad Bridge, which is the 

next bridge upstream from the highway bridge, the Bridge Tender refused to allow 

the flotilla to pass since he perceived that the flotilla would hit the bridge. He becane 

very agitated and was afraid for his own safety. He had to be calmed down by 
another bridge tender (James Harper) on duty at the nearby Hilton Railroad Bridge. 

(See Vol. 1 Tr. 147-148). 

That exchange was also overheard by Kenneth Goff who was operating another 

tug (CAPTAIN JIMMY) with a barge downstream from the International Paper Plant 

at Riegelwood. (Vol. I Tr. 162). Goff testified that he heard the Bridge Tender say, 

"You're gonna hit the bridge, you're gonna hit the bndge." (Vol. I Tr. 153). 

Moreover, Mr. Harper (the Bridge Tender at the Hilton Bridge) testified that he had 

been stationed at the Navassa Bridge at one time and had never seen a tug try to 

navigate through the Navassa Bridges with a barge on the hip. Mr. Harper testified 

that when he worked on the Navassa Railroad Bridge he had 40-50 tug and barge 

movements per month. "None of them are on the hip, and none of them are towing. 

It's just a normal hookup with the tugboat in behind the barge." (Vol. 1 Tr. 156). 

Also, Captin Goff test~fied that the round trip from the Thomas Rhodes Bridge to 

the paper plant at Reigilwood and return takes about 18-24 hours. During the trip 

involved here he had not seen any traffic (other than the NEPTUNE with 

MARINERS HARBOR) on the river. (Vol. I Tr. 170) I-Ie also testified that he did 

not notice any damage to the highway bridge on the transit upstream. (Vol. I Tr. 

170). 

Mr. Goff also testified that Hanover Towing, his employer, has the only 

colnmercial traffic that he knows of that transit9 the area. Infrequently another tug 

will go to the High Rise Terminal and the dinner boat, HENRIETTA, occasionally 

will ply those waters. @). However, tug and barge traffic not operated by Hanover 

to supply the paper plant is not common. 
Finally, the Coast Guard introduced the results of the North Carolina SBI 

Laboratory Report which concluded that the paint chips (Item #3) taken from the 

bridge piling (damaged area ofthe fendering system at the Thomas Rhodes Highway 

Bridge) was physically and chemically consistent with the paint chips (Items #5 and 

6) taken from the barge (MARINERS HARBOR). Those paint chips, the report 

concluded, "could have shared a common origin." 

I am of the opinion that the collection, preservation, and testing of the samples 

was done properly and that the results do support the conclusion as reported . Chief 

Olmstead testified that a Coast Guard team with Officer Eason from the Wilmington 

Police Department took wood and paint samples at the Thomas Rhodes Highway 

Bridge on January 27, 1999. (Vol. I Tr. 59). The samples were taken from the 

damaged area of the fender where the impact appeared to have been most severe. 

(Vol. I Tr. 60). Four specimens were taken and sealed in plastic or ziplock bags. (Ld 

at 61). They were wrapped with tamper-proof tape and later deposited in the vault at 

the Marine Safety Office. (Vol. I Tr. 61-63). 

Four more samples were taken by another Coast Guard team including Petty 

Officer Meier and F~rernan Davis og-Eebruary 17, 1999 from the MARINERS 

HARBOR at the High Rise Terminal. Again, the samples were placed in separate 

envelopes and sealed. 

Subsequently, all samples were went to the SBI Laboratory where they were 

subjected to a series of tests. Mrs. Flanagan described the four tests applied to the 

selected samples. She also confirmed that the laboratory report accurately reflected 

the results of those tests. (Vol. I Tr. 201). The North Carolina SBI Laboratory is a 
laborato~y accredited by the Association of Crime Laboratory Directors and has not 

lost that stature since it was acquired. (Vol. 1 Tr. 198). At the time the tests here were 

preformed the laboratory was fully accredited. (Id). - 

I have reviewed this evidence and the claims of the Respondent. With regard to 

his statement that the Coast Guard already knew of the damage to the Thomas Rhodes 

Highway Bridge on the morning of December 3 1, 1998 before he transited that draw, 

1 reject his statement as lacking in credibility. It directly conflicts with Olmstead's 

testimony that the first notification the Coast Guard had of the damage was the report 

by Mr. William Mursell of Hanover Towing who, in turn, related the report of the 

damage Erom Mr. Goff. (Vol. l Tr. 48-50). That was "early the week following . . . 

New Year's Day . . . ." (Vol. I Tr. 49) 

Moreover, Captin Goff testified that he had not seen any damage to the bridge on 

his passage upstream within 18-24 hours of his return on the evening of December 

31, 1998. 

Moreover, 1 do not believe the statements of Mr. Culp who was in the engine 

room of the NEPTUNE on the passage under the bridge. He claims he did not feel 

any impact resulting from an allision:.(Vol. -. I1 Tr. 81-82). 1 have grave severvations 

about the accuracy and credibility of his assertions. First, as brought out by the 

Investigating Officer, Culp was serving as Engineer aboard the NEPTUNE without a 

Coast Guard license or document. (Vol. I1 Tr. 83-84). Yet the vessel exceeded 100 

Gross Tons as reflected on the Certificate of Documentation (10- 13). 46 U.S.C. 6 

8701 specifically requires that at least a Merchant Mariner's Document is required for 

service aboard a vessel of that tonnage. (Vol. I1 Tr. 84-86). 
Moreover, Culp did not know whether the information in his log entries was 

either accurate or complete. (Vol. I1 Tr. 98-101). Sometimes he made a log entry 

when the engines were lit md shut down and other times he didn't. a). Also, he 

himself, was not sure as to whether the log entries he made were accurate. (Id). On 

thu whole, I do not believe his testimony is trustworthy. 

Reviewing all of the evidence on this issue, 1 believe the Coast Guard has 

established by a preponderance of the evidence that the MARINERS HARBOR under 

the command of the Respondent hit and damaged the fendering system of the Thomas 

Rhodes Highway Bridge on December 3 1, 1998. 1 do not believe the Respondent's 

denial to the contrary. The law is well settled that a presumption of negligence arises 

where a moving vessel hits a fixed object, such as a bridge. See Appeal Decision No. 

2594 (GOLDEN) p. 4 (1997). That presumption applies here and has not been 

rebutted by Respondent as discussed above. 

4. The remaining allegation is that Respondent failed to report the allision with the 

Thomas Rhodes Highway Bridge as required by 46 C.F.R.5 4.05-1. That section 

reads: 

Subpart 4.05 -Notice of M.arine Casualty and Voyage Records 

8 4.05-1 Notice of marine casualty 

(a) Immediately after the addressing of resultant safety concerns, the 

owner, agent, master; operator, or person in charge, shall notify the 

nearest Marine Safety Oflice, Marine Inspection Office or Coast 

Guard Group Offtce whenevcr a vessel is involved in a marine 

casualty consisting in --- 

(I) An unintended grounding, or an urnntended strike of (allision 

with) a bridge; 
No notice ofthe allision with the highway bridge by the NEPTLJNE or its tow 

was ever made lo any office of the Coast Guard by the Respondent, or for that 

matter, by anyone else representing the vessel. The damage to the bridge was 

brought to the attention of the Coast Ciuard by William Munell from EIanover 

'rowing. (Vol. I Tr. 49-50). Indeed, the Respondent has continued to this day 

to deny that he hit the bridge despite the preponderance of evidence to the 

contrary. 

In view of my findings above regarding tl~e aatlision between the flotilla 

under Respondenfs command and the highway bridge involved here, I find 

that this allegation of failure to notify the Coast Guard is PROVED by a 

Preponderance of the Evidence. 

v. 

ORDER 

?'he parties will have 14 days from service of this Decision to submit evidence in 

mitigation or aggrievation of the sanction to be imposed. The Respondent's Merchant 

MARINERS Personnel Record or record of past offenses is to be submitted by the 

Investigating Officer. - 

-. 

Also, recomn~endations regarding the proposed sanction in light of the evidence 

submitted at the hearing will be received. 

United States ~dministrativGfaw Judge 

Done and dated May $5-2000 at 

Norfolk, Virginia 
ATTACHMENT ONE 

LIST OF WITNESSES AND EXHIBITS 

WITNESS LIST 

Coast Guard Witnesses: 

I. Walter Eugene Olmsted 

2. Matthew Meier 

3. James Harper 

4. Kenneth off 

5. Beth O'Quinn Flanagan 

6. Timothy E. Dickerson 

7. Gary Barton Evans 

Respondent's Witnesses: 

I. Gary Barton Evans 

2. Darrell W. Culp 

EXHIBITS 

Coast Guard Exhibits: 

1. Digital photograph of the Thomas Wdes Highway Bridge 

2. Sample Transmittal to NC SBl Lab 

3. Request for Examination of Physical Evidence to N.C. State Bureau of Investigation 

4. Estimate for repairs to bridge 

5A, SB, 5C, 5D, 5E, 5F, 5G, 5H - photographs 

6-1,6-2,6-3,6-4,6-5,6-6,6-7, 6-8,6-9 -photographs 

7. Statement of Vive Griffin 
8. Statcment of James Harper 

9. Statement of Kenneth Gaff 

10. C.V. of Belh O'Quinn Flanagan 

1 1. Lab report 

12. Copies of log book entries 

13. Documentation info on tug 

14. Vessel description summary on tug 

15. Vessel descri$tion summary on barge 

16. Copy of Captain Evans' license 

17. Engineer Culp's log 

18. Chart drawn in court 

19. Drawing by Mr. Meier 

20. Drawing by Mr. Meier 

For the Respondent 

A. Drawing by Captain Evans 
CERTIFICATE OF SERVICE 

1 hereby certify that 1 have served the foregoing DECISION AND ORDER upon 

the following parties to this proceeding at the address indicated by federal express: 

LCDR R.J. Raksnis 

Marine Safety Office WiI~ningtotl 

1502-23'" Street 

Wilmington, NC 28405 

Phone: 910-772-2230 

Geoffrey A. Losee, Esq. 

ROUNTREE & SEAGLE; LLP 

2419 Market Street 

Wilmington, NC 28403 

Phone: 9 10-763-3404 

~dinda H. Shinault, CLA 

Legal Assistant to the Administrative Law Judge 

Done and dated May A (2000 at 

Norfolk, Virginia