Emery 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

COMPLAINANT, 

VS. 

License No. 878949 

Docket No. 00-0514 

PA No. 00001395 

Issued to: 

MICHAEL V. EMERY 

Respondent 

DECISION AND ORDER 

Before: Archie R. Boggs 

Administrative Law Judge 

PRE LIM IN AR Y STATEMENT 

This proceeding is brought pursuant to the authotity contained in 5 L'SC 551-559; 46 

USC Chapter 77; 46 CFR Part 5 and 33 CFR Pmi 20. 

Michael V. Emery was charged with two Complaints-- one dated 15 August 2000, and 

a second dated 20 September 2000 --which were issued by U.S. Coast Guard Investigating 

Officer LTJG L. M. Piazza of the Marine Safety Office, Miami, FL. 

The factual allegations of the first complaint are as follows: 

Negligence 

The Coast Guard alleges that: 

I. On February 25, 2000, Respondent was acting as Master of the \1/V 

WALTER R, the first of a three vessel tandem tow transiting 

westbound on the Saint Lucie River in Stuart, FL. 

2. While transiting through the FEC Railroad Draw Bridge, Respondent 

failed to adequately maintain control of his tow and the tow 
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consequently struck the bridge, resulting in an allision with said 

bridge's fendering system, causing substantial damage. 

Misconduct 

The Coast Guard alleges that: 

1. On March 29, 1996, Respondent signed a Letter of Warning issued by 

Marine Safety Offlce Tampa for failing to safely navigate the M/V 

SALVATION ROSE which resulted in an allision between his vessel 

and two moored fishing vessels. 

2. Respondent did wrongfully indicate on his Application for License as 

Officer, Staff Officer, Operator, and Merchant Mariner's Document, 

signed and dated on March 9, 2000, that he had never been given a 

Coast Guard letter of warning. 

Violation of Law or Regulation 

The Coast Guard alleges that: 

1. After alliding with the FEC Railroad Draw Bridge, Respondent 

continued on with his voyage without having notified the nearest 

Marine Safety Office, Marine Inspection Office, or Coast Guard 

Group Office of the striking. 

2. Respondent failed to repo11 the marine casualty in accordance with 46 

CFR 4.05-1. 

The factual allegations of the second complaint are as follows: 

Negligence 

The Coast Guard alleges that: 

1. On September 14, Respondent was acting as Master of the Tug MN 

BIRDIE B transiting eastbound on the Saint Lucie River in Stuart, 

FL. 

2. While transiting through the FEC Railroad Draw Bridge and the 

Highway U.S. 1 High Rise Bridge, Respondent failed to adequately 

maintain control of his tow and the tow consequently struck the 

bridges, resulting in an allision with said bridges' fendering systems, 

causing substantial damage. 

Misconduct 

The Coast Guard alleges that: 

1. On September 14, 2000. respondent was acting as the operator of the 

Tug BIRDIE B. 

2. The Tug Birdie B is an Uninspected Towing Vessel (UTV), and per 

46 CFR 15.610, must be under the direction and control of an 

individual licensed by the Coast Guard. 

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3. Respondent did wrongfully act under his Coast Guard license by 

operating an Uninspected Towing Vessel without the proper license 

and/or equivalent license 45 CFR 15.910. 

Violation of Law or Regulation 

The Coast Guard alleges that: 

I. After alliding with the FEC Railroad Draw Bridge and the Highway 

U.S. I High Rise Bridge, Respondent continued on with his voyage 

without immediately notifying the nearest Marine Safety Office, 

Marine Inspection Office, or Coast Guard Group Office ofthe 

striking. 

2. Respondent failed to repmi the marine casualty in accordance with 46 

CFR 4.05-1. 

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Mr. Emery filed a two page handwritten answer to the first Complaint. He requested a 

hearing. By letter dated 16 October 2000 addressed to the ALI Docketing Center, Baltimore, 

MD, the Respondent answered as follows: "I) It is understood and agreed that Respondent, 

Michael V. Emery, will be prsent for the hearing of Coast Guard Case No. PA00001395, 

Docket No: 00-0514 at 0930, 09 November, 2000 at the Federal Building, Room 1524, Miami, 

Florida. 2) I intend to contest all Factual Allegations ofNegligence, Misconduct, and any 

Violations of Laws or Regulations at the time of the hearing. 3) A summary of proposed 

defenses and list of witnesses and supporting testimony will be sent prior to the 15 days 

allowed before the heating starts." He did not submit a list of witnesses. 

A hearing was held at Claude Pepper Federal Building, Room 1524, 51 SW First 

Avenue, Miami, 33130, on 9 November 2000. 

Although all of his rights were fully explained to him, including his right to be 

represented by professional counsel, Mr. Emery elected to represented himself. 

ln support of the Complaints the Investigating Officer introduced in evidence the 

testimony of: (I) the Respondent, Mr. Emery; (2) Joseph L. Schonder, office engineer for the 

Florida East Coast Railway; (3) Steven A. Krivdo, Chief Petty Officer, U.S. Coast Guard, who 

is stationed at the Marine Safety Detachment, West Palm Beach, FL; ( 4) LT Michael Lingatis, 
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supervisor of the Marine Safety Detachment, West Palm Beach; and (5) Gladys Hernandez, 

senior license evaluator for the Regional Exam Center, Miami. 

In addition to the testimony oft he five (5) aforementioned witnesses the Investigating 

Officer introduced in evidence seven (7) exhibits. 

!.0. Exhibit No. I -a copy of license No. 878949 which authorizes Michael 

Vincent Emery to serve as "Master of steam or motor vessels of not more 

than l 00 gross registered tons (domestic tonnage) upon near coastal waters; 

also, authorized to engage in commercial assistance towing." 

I.O. Exhibit No. 2- a copy of a license renewal application (form CG 7198) 

which was executed by Michael V. Emery on 9 March 2000. 

l.O. Exhibit No. 3- a copy of a Coast Guard "Letter of Warning" which is 

dated 29 March 1996, and which Mr. Emery accepted and acknowledged 

with his signature. 

l.O. Exhibit No.4- a letter from Mr. I. L. Schonder, which indicates that 

the estimated cost to repair bridge 260.93 over the St. Lucie River due to the 

allision of25 February 2000 is $86,932.85. 

I.O. Exhibit No. 5- a second letter from Mr. Schonder with an estimate to 

repair the damage to the same bridge as a result of the all ision of 14 

September 2000 as $25,068.10. 

I.O. Exhibit No. 6- a completed marine accident form (CG 2692) repotiing 

the allision of the towing vessel Dorothy Ann with the Roosevelt Bridge on 

25 February 2000 together with (a) a handwritten statement from Captain 

Michael Zarr, (b) a sketch ofthe scene ofthe allision by Captain Zan, (c) a 

three page handwritten statement dated 29 February 2000 by Mr. Emery, (d) 

a one page statement dated 29 February 2000 by James D. Addision II, (e) a 

handwritten statement from Martin Wells and (f) a report of marine accident 

(Form CG 2692) for the Tug Walter R concerning the allision of25 

February 2000. 

!.0. Exhibit No.7- a copy of the radio log of the U.S. Coast Guard Station, 

Ft. Pierce, FL, for the 0400-0800 watch on 14 September 2000. 

At the conclusion of the heating the Administrative Law Judge took the matter under 

advisement. 

It is now concluded that both Complaints are proved. 
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FINDINGS OF FACT 

I. On 29 March 1996 the Respondent signed an acknowledgment of a "Letter of Warning" 

which was issued by the U. S. Coast Guard Marine Safety Office, Tampa, FL. for 

failing to safely navigate the MN Salvation Rose (ON 0531297) resulting in an 

allision between his vessel and two moored fishing vessels in the vicinity of Tarpon 

Springs fuel dock in the Anclote River. 

2. On 9 March 2000 the Respondent submitted an application for renewal of his license. 

3. On the form which he completed (CG 719B) he was asked the question "Haw you ever 

been given a Coast Guard letter of warning or been assessed a civil penalty for violation 

of maritime or environmental regulations?" Mr. Emery answered by placing his initials 

in the "No" block on the form. 

4. On 14 September 2000 when Mr. Emery was serving as operator of the Tug Birdie B he 

held a license v.-hich authorized him to serve as "Master of steam or motor vessels of 

not more than I 00 gross registered tons (Domestic tonnage) upon near coastal waters, 

and also authotized to engage in commercial assistance towing." The Tug Birdie B is 

an uninspected towing vessel. 

5. The regulations require uninspected towing vessels to be under the direction and control 

of an individual licensed by the Coast Guard in accord with 46 CFR 15.610. A proper 

license for operating the Birdie B would have been "operator of uninspected towing 

vessel" or its equivalent, which would be "Master of steam or motor vessels of not more 

than 200 gross tons." 

6. On 25 February 2000 Mr. Emery was relief operator on the tug Walter R. The vessel 

was westbound on the St. Lucie River in Stuart, FL. The Walter R was the lead vessel 

in a three vessel tow when it approached the "Roosevelt Triple Set" of bridges. The 
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Walter R was pulling the barge Santa Lucia while the Dorothy Ann was pushing the 

barge from astern. The barge was being relocated from Ft. Pierce tenninal to Maritime 

Tug and Barge. 

7. When transiting from east to west the bridges are encountered in the following order: 

(a) Highway U.S. 1 Highrise (Roosevelt Bridge); (b) the Florida East Coast Railway 

Drawbridge; and (c) the Old Roosevelt drawbridge. 

8. Just prior to approaching the bridges Mr. Emery stopped the tandem tow to shorten the 

tow line between he Walter Rand the barge Santa Lucia. The tow then continued 

forward. As the Dorothy Ann (the stern tug) approached the railroad bridge 

approximately halfway into the fendering system the starboard side of the barge Santa 

Lucie slid to the notih side of the trestle and levered itself against the fendering system. 

The Dorothy Ann then backed down until the barge was freed. 

9. Once clear of the FEC Railway bridge the Respondent contacted the bridge tender and 

the tender infonned him that there was damage to the fender systems, and several 

boards had fallen into the water as a result of the allision. 

10. No notification was given by the Respondent to any Coast Guard facility with regard to 

the all ision. 

11. 46 CFR 4.05-1 provides as follows: "(a) Immediately after the addressing of resultant 

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

nearest Marine Safety Office, Marine Inspection Office or Coast Guard Group Office 

whenever a vessel is involved in a marine casualty consisting in-

(1) An unintended grounding, or an unintended strike of (allision with) a bridge." 

12. The Coast Guard Marine Safety Detachment in West Palm Beach was notified of the 

striking by the Florida East Coast Railw·ay. 

13. An estimate to repair the damage to the bridge was $86,932.85 
14. On 14 September 2000 when Mr. Emery was operating another vessel, the tug Birdie 

B, the Roosevelt and FEC Railway drawbridge were struck again. 

15. The tug Birdie B, like the passing of the Walter Ron 25 February 2000, was westbound 

on the St. Lucie River. Mr. Emery was the relief operator who was at the helm at the 

time ofthe allision. The tow consisted of a barge followed by a dredge, then a crane 

barge followed by three sets of dredge piping. The entire tow was approximately 1200 

feet in length. In addition to the Birdie B there were two other tugs, the Cheyenne and 

the E. R. Adams, which were assisting in the passage through the bridges. 

16. Before passing under the bridges Mr. Emery broke the tow into two sections. The first 

section consisted of the barge and the dredge. The remaining section was anchored. 

The Respondent contacted all ofthe operators and instructed them on how to position 

themselves for making the transit-- the Cheyenne to the north and the E. R. Adams to 

the south. The Birdie B took the first half of the tow through the three bridges. The 

Birdie B passed through the highway U.S. 1 High Rise Bridge without incident, but 

when the tow began to transit through the FEC Railway drawb1idge, the tow shifted 

from north to south, causing the last pari of the tow, which was the dredge, to be set to 

the south and its port bow hit the south fendering system of the bridge. The same 

situation repeated itself as the tow passed through the third bridge, the old Roosevelt 

Bridge. 

1 7. Once through the three bridges the partial tow was anchored and the tugs headed back 

east through the bridges in order to pick up the second half of the tow. 

18. The second half of the tow passed through the bridges without incident. The 

Respondent reunited both sections of the tow and proceeded on. 

19. Again. Mr. Emery gave no notification to the Coast Guard regarding this second 

allision. 
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20. Coast Guard Station Ft. Pierce was notified of the casualty at 0500 on 14 September 

2000 by the Roosevelt bridgetender, approximately two hours after the casualty. 

21. An estimate to repair the FEC Railway Bridge was $25,068.10 

CONCLUSIONS OF LAW 

The Respondent and the subject matter of this hearing are within the jurisdiction vested 

in the U.S. Coast Guard under the provisions of 46 USC Chapter 77. 

First Complaint, proved. Second Complaint, proved. 

OPINION 

The evidence clearly supports the allegations of the Complaints. 

As indicated in the findings of fact, on 29 March 1996 the Respondent signed an 

acknowledgment of a letter of warning which was issued to him by the U.S. Coast Guard 

Marine Safety Office, Tampa, FL.. However, when he submitted an application for renewal of 

his license he indicated that he had never been given a letter of warning by the Coast Guard. 

18 USCIOOI, which is cited on form CG 719B, reads as follows: 

"Whoever, in any manner within the jurisdiction of any department or 

agency of the United States knowingly and wilfully falsifies, conceals or 

covers up by any trick, scheme, or device a material fact, or makes any 

false, fictitious or fraudulent statements or representations, or makes or 

uses any false writing or document knowing the same to contain any false, 

fictitious or fraudulent statement or entry, shall be fined not more than 

$10,000 or imprisoned not more than five years, or both." 

Mr. Emery holds a license which does not authorize him to operate either of the 

uninspected towing vessels- the M/V Walter R or the M/V Birdie B. His license authorizes 

him to serve as "Master of steam or motor vessels of not more than I 00 gross registered tons 

(domestic tonnage) upon near coastal waters; also, authmized to engage in commercial 

assistance towing." He was in violation of the law when he operated both of those vessels. 
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A license as Master of I 00 gross tons does not authorize a person to serve as 

operator of uninspected towing vessels. 

46 CFR figure I 0.403 shows that a license for operator of an uninspected towing vessel 

is higher than that of a license for Master of a l 00 gross ton vessel. The equivalent license for 

an operator of an uninspected towing vessel is a license as Master of steam or motor vessels of 

not more than 200 gross tons. Mr. Emery's license authorizes him to serve as Master of steam 

or motor vessels of not more than I 00 gross tons. The endorsement for commercial assistance 

towing does not apply to an operator of an uninspected towing vessel ( 46 CFR I 0.482) 

Captain Emery indicated that he did not know that his license did not qualify him to 

serve as operator ofuninspected towing vessels. 

A holder of a license is, of course, required to know the limitations of that license. 

Furthennore, the application for renewal·of his license, which he executed on 9 March 2000, 

indicates that he was applying for ("Master near coastal 100 gt"). However, there also appears 

on the application the following wording: "Renewal license issued first but want(s) eligibility 

for 200 T." This would indicate that Mr. Emery wished to be issued a 200 gross tons license 

which would authorize him to serve as operator of uninspected towing vessels. 

With regard to the allisions themselves the Commandant of the Coast Guard has 

repeatedly ruled that when a moving vessel all ides with a bridge there is a presumption of 

negligence on the part of the operator of the vessel. 

In CDOA 2524 (David A. Taylor) the Commandant ruled as follows: 

"Appellant asserts that the Administrative Law Judge erred in 

finding him negligent in alliding with N&W Railroad Bridge 

No. 5. I do not agree. 

Appellant acknowledges that the allision with the bridge 

created a presumption of negligence. However, he claims that 

the presumption was rebutted by the evidence. Specifically, 

Appellant stresses that, having never before moved a barge as 

large as the MORIANA 450, Appellant took adequate, 
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overcome it, a mariner must "produce more than cursory evidence" 

to show that "the moving vessel was without fault or that the 

allision was occasioned by the fault of the stationary object or ... 

was the result of inevitable accident." Appeal Decision No. 2173 

(PIERCE). He may rebut the presumption by such evidence as 

will show his due care under the circumstances. Appeal Decision 

No. 221 I (DUNCA~J 

Second, an "unrebutted presumption suffices to establish a prima 

facie case of negligence." McKnight, supra. An Administrative 

Law Judge may conclude that negligence was proved on this basis 

alone. McKnight and Duncan, supra. 

In the instant case, the Government established by substantial 

evidence that the allision occurred and that Appellant was directing 

the vessel's navigation. The presumption arose, therefore, and 

Appellant then had the burden of going forward with evidence 

sufficient to rebut it. 

II 

Mr. Emery was clearly negligent in his operations of both vessels. In addition to the 

negligent operation of the vessels Mr. Emery further violated the law when he did not 

immediately report the allisions to the Coast Guard. 

46 CFR 405- I provides as follows: 

"(a) Immediately after the addressing of resultant safety concems, the 

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

nearest Marine Safety Office, Marine Inspection Office or Coast 

Guard Group Office whenever a vessel is involved in a marine 

casualty consisting in-

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

with) a bridge:" 

In both instances the Coast Guard investigators contacted the Respondent concerning 

the allisions. It was the duty of the operator of the vessels to contact the investigators. 

ORDER 

License No. 878949 and any other valid license issued to you by the United States 

Coast Guard, now held by you, be and the same are hereby REVOKED; and upon service of 
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pr-udent precautions by posting two lookouts on the barge and 

an extra crewmember in the wheelhouse as a lookout. 

Appellant urges that he received favorable information from 

his lookouts in positioning the M/V JENNA Band its tow for 

transit under the bridge. Appellant claims that he did 

everything a prudent mariner could have done to safely 

navigate through the area. 

The guiding precedent in such negligence cases is Commandant v. 

Murphy, NTSB Order No. EM-139 (February 3, 1987) and Order 

Denying Reconsideration, NTSB Order No. EM-144 (July 21, 

1987). See also, Appeal Decisions 2500 (SUBCLEFF); 250 I 

(HAWKER); 2492 (RATH); 1200 (RICHARDS). In Murphy, 

supra, the following criterion was pronounced in detennining 

whether the presumption of negligence has been rebutted: 

Since the ultimate burden of proof on its charge 

against a seaman remains continuously with the Coast 

Guard notwithstanding any presumption of 

negligence, a credible, non-fault explanation for a 

collision defeats the presumption and obligates the 

Coast Guard to go forward with evidence to counter 

the seaman's explanation or to show that he was 

nevertheless guilty of some specific act of negligence. 

(emphasis supplied) 

In the instant case the Respondent has not offered a no fault explanation in 

connection with either of the allisions. 

Also, in CDOA 2368 (Madji Walker) the Commandant ruled as follows: 

Appellant generally asserts that the Administrative Law Judge 

erred by inferring negligence from the occurrence of the allision. 

do not agree. 

It is well settled that a rebuttable presumption of negligence arises 

when a moving vessel strikes a fixed object such as a bridge. 

Appeal Decisions No. 2284 (BRAHN) and 2264 (MCKNIGHT). 

Past decisions and case law fully develop the presumption's 

rationale, applicability and effect. Appeal Decisions Nos. 2325 

(PAYNE) and 2288 (GA YNEAUX), and Patterson Oil Terminals 

v. The Port of Covington, 109 F. Supp. 953 (E.D. PA. 1952), affd, 

208 F.2d 694 (3d Cir. 1953). Only the effect is at issue here. It is 

two-fold. 

First, Appellant had the burden of going forward with rebuttal 

evidence once the presumption was established. Brahn, supra. 

This is a "heavy" burden, Patterson, 109 F. Supp. at 954. To 

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this order upon you, you are directed to forthwith deliver your license to the Coast Guard 

Marine Safety Office, I 00 McArthur Causeway, Miami Beach, FL 33139. 

The rules goveming appeals are attached hereto. 

Dated 7 March 200 1 

New Orleans, Louisiana 

ARCHIE R. BOGGS 

ADMINISTRATIVE LAW JUDGE