UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

RICHARD ALBERT CHESBROUGH 

Respondent 

_________________________________ 

Docket Number 2012-0288 

Enforcement Activity No. 4357261 

DECISION AND ORDER

Issued: September 18, 2013

By Administrative Law Judge: Honorable George J. Jordan

Appearances: 

CWO John E. Nay 

Sector Columbia River 

For the Coast Guard 

Richard Albert Chesbrough and 

Scott Clifford, Esq. 

For the Respondent 

 IT IS ORDERED that service of this Decision and Order upon Respondent will 

serve as notice to Respondent of appeal rights as set forth in 33 CFR Subpart J, Section 

20.1001. 

1 
TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .....................................................................................2 

A. Summary ........................................................................................................2 

B. Procedural History .........................................................................................3 

II. FINDINGS OF FACT......................................................................................................6 

III. DISCUSSION ..................................................................................................................9 

A. Principles of Law ...........................................................................................9 

B. Jurisdiction .....................................................................................................11 

C. Misconduct .....................................................................................................12 

1. Operation Subject to a Certificate of Inspection ......................................13 

2. Coast Guard’s Position ............................................................................15 

3. Respondent’s Defenses ............................................................................15 

D. Conclusion .....................................................................................................18 

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW .........................19 

V. SANCTION .....................................................................................................................20 

A. Factors Considered in Determining an Appropriate Order ............................21 

B. The Parties’ Arguments Regarding Sanction .................................................22 

C. Conclusions as to Sanction ............................................................................25 

ORDER ..................................................................................................................................27 

APPENDIX A: APPEALS ....................................................................................................i 

APPENDIX B: LIST OF WITNESSES AND EXHIBITS ...................................................v 

APPENDIX C: RULINGS ON PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW ...................................................................................................vii 

DECISION AND ORDER

I. PRELIMINARY STATEMENT 

A. Summary 

 The United States Coast Guard (Coast Guard) initiated this administrative action 

seeking revocation of Richard Albert Chesbrough’s (Respondent) Merchant Mariner’s 

Credential (MMC or Credential). This action is brought pursuant to the authority 

contained in 46 U.S.C. § 7701 et seq. and its underlying regulations codified at 46 C.F.R. 

Part 5. 

 Hearings in this matter commenced on December 4, 2012 and February 26, 2013 

at the United States Bankruptcy Court in Portland, Oregon. Following the hearing, both 

2 
parties filed post-hearing briefs containing proposed findings of fact, conclusions of law, 

and argument in support thereof. As detailed below, after careful review of the entire 

record taken as a whole, including witness testimony, exhibits, applicable statutes, 

regulations, and case law, I find the charged violation of Misconduct PROVED and order 

Respondent’s Credential SUSPENDED. 

B. Procedural History 

 On June 27, 2012, the Coast Guard filed a Complaint seeking revocation of 

Respondent’s MMC for Misconduct. Specifically, the Coast Guard alleges that 

Respondent violated the terms of his vessel’s Certificate of Inspection (COI) by 

navigating the vessel, the WILLAMETTE QUEEN, into the Willamette River when the 

river level was higher than allowed by the COI. Respondent filed an Answer to the 

Complaint on July 17, 2012, admitting to the jurisdictional allegations and certain factual 

allegations but denying other factual allegations, specifically the level of the river and 

violating the terms of the vessel’s COI. Respondent also filed a letter setting forth 

affirmative defenses he intended to assert at the hearing. 

After a prehearing conference with both parties on September 20, 2012, I set the 

date of hearing for December 4, 2012. On Sunday, December 2, 2012, two days prior to 

the hearing, Respondent faxed to my office a request for continuance of at least 90 days 

because he wished to obtain counsel. The Coast Guard objected to this request on 

Monday, December 3, 2012. As I was already en route to the hearing location by the time 

my staff received Respondent’s request, I reserved my ruling on this motion until the 

hearing convened. 

3 
 At the hearing, Scott Clifford, Esq. entered his appearance as Respondent’s corepresentative1

 and submitted a Motion to Dismiss. The motion to dismiss was premised 

on the locks on the Willamette River being closed, meaning the WILLAMETTE QUEEN 

can no longer reach downriver areas. Mr. Clifford asserted that the area of the river where 

the vessel operates should therefore not be considered a “navigable water of the United 

States,” depriving the Coast Guard of jurisdiction over the WILLAMETTE QUEEN. I 

held the motion in abeyance to permit the Coast Guard to file a response; however, on 

December 10, 2012, Mr. Clifford filed a notice that he was withdrawing the motion. 

 Mr. Clifford also renewed Respondent’s request for a continuance at the hearing. 

The Coast Guard objected on the grounds that Respondent waited until the last minute to 

obtain counsel, and the Agency was prepared to put on its case. I allowed the Coast 

Guard to put on its witnesses, subject to cross-examination and potential recall at a later 

date. I then granted Respondent’s request for a continuance as to his defense. Following 

the parties’ agreement to certain stipulations, the Coast Guard withdrew several 

witnesses. During the December 4 hearing, the Coast Guard also asked me to retain 

Respondent’s MMC until the conclusion of the second phase of the hearing. (12/4/12 Tr. 

at 53). I denied this request because there was no evidence Respondent posed any definite 

danger to maritime safety. (12/4/13 Tr. at 66). 

 The second phase of the hearing was set for February 26, 2013. On that date, 

Respondent appeared alone and explained that Mr. Clifford had been called out of town 

unexpectedly, but he was prepared to proceed without Mr. Clifford’s assistance. As 

Respondent and Mr. Clifford had been acting as co-representatives, I allowed Respondent 

 

1

 Mr. Clifford was clear that, although he is an attorney, he was not acting as counsel; he and Respondent 

intended to be co-representatives in this matter. 

4 
to proceed and present his defense. Respondent also filed a motion asking that LT Rule 

and CWO Nay be disqualified for prosecutarial [sic] misconduct due to interference with 

the renewal of his MMC. Respondent complained his renewal MMC had been sent to the 

Coast Guard rather than to him, and that the expiration date was moved up. The Coast 

Guard explained the reason this occurred was because Respondent currently has a 

temporary MMC while his appeal in a previous case is pending before the Commandant, 

and therefore his expiring six-month temporary document was being exchanged for a new 

six-month temporary document. The status of Respondent’s renewal application has not 

been affected. (2/26/13 Tr. at 9-17). 

 Respondent also complained that LT Rule had attempted to serve the Complaint 

at a public meeting. The record established LT Rule did not do so. After hearing the 

explanations on the record, I determined that the actions of the Coast Guard did not 

constitute misconduct and denied Respondent’s motion. 

Respondent waived cross-examination of the Coast Guard’s last witness, Mr. 

Kittelson. He testified and presented two witnesses on his own behalf. At the conclusion 

of the hearing, both parties stated that they wished to file Proposed Findings of Fact and 

Conclusions of Law. On March 19, 2013, I issued an Order providing the transcript to the 

parties and allowing 30 days for post-hearing filings. The Coast Guard submitted its brief 

on April 17, 2013. Respondent submitted a non-conforming document entitled 

Respondent’s Post-Hearing Brief (Proposed Findings of Fact, Proposed Conclusions of 

Law, and Argument in Support Thereof) on April 22, 2013.2

 This matter is now ripe for 

decision. 

 

2

 This document does not conform to the requirements of 33 C.F.R. § 20.303 because it was not filed by an 

authorized representative, nor was it signed. Additionally, the document contains unsworn statements by 

5 
II. FINDINGS OF FACT 

 The following Findings of Fact are based on a thorough and careful analysis of 

the documentary evidence, testimony of witnesses, stipulations made by the parties, and 

the entire record taken as a whole. 

1. The P/V WILLAMETTE QUEEN is a Small Passenger Vessel regulated under 46 

CFR Subchapter T. (10/7/12 Stipulation of Facts). 

2. The WILLAMETTE QUEEN is an officially documented vessel of the United 

States, O.N. 959851. Its gross tonnage is 62 tons and length is 64.8 feet. (10/7/12 

Stipulation of Facts). 

3. The Coast Guard issued a COI to the WILLAMETTE QUEEN on October 29, 

2007. The vessel is required to abide by the COI whenever it is operating with 

paying passengers aboard. (10/7/12 Stipulation of Facts). 

4. One of the conditions listed on the COI is: “When the river gauge at Salem reads 

11 ft or more, the vessel’s operation is limited to the Willamette Slough located 

behind Minto Browns Island.” (10/7/12 Stipulation of Facts). 

5. On May 9, 2012, Respondent was the holder of Merchant Mariner License 

(MML) No. 1215480.3

 (10/7/12 Stipulation of Facts). 

 

Respondent’s wife as to how they ascertained river levels and what occurred on May 9, 2012. To the extent 

that this document contains testimony by Respondent’s wife, who was not called as a witness or placed 

under oath at any time during this proceeding and has not been subject to cross-examination, it is rejected. 

Although Mrs. Chesbrough has not entered an appearance as Respondent’s representative, I have 

nevertheless considered the arguments presented in the remainder of the document, as they purport to be 

made on Respondent’s behalf. 

3

 This license expired since this incident. The Coast Guard now issues Merchant Mariner Credentials 

(MMCs) instead. The MMC combines the individual merchant mariner's document, license and certificate 

of registry as well as the STCW endorsement into a single credential that serves as the mariner's 

qualification document, certificate of identification and certificate of service. Respondent currently holds 

MMC No. 000211487 with an appropriate officer endorsement authorizing service as master of vessels 

100GT or less on inland waters. The current issue is a temporary MMC. The Coast Guard will continue to 

issue such credentials until Respondent’s pending appeal is finalized. 

6 
6. The Salem Gauge is located on the Willamette River about 300 feet upstream 

from the Center Street Bridge at river mile 84.2, near Salem, Oregon. (12/4/12 Tr. 

at 80-81). 

7. The river gauge at Salem consists of a pressure transducer in a fixed position in 

the river that measures the amount of head above the fixed position. (2/26/13 Tr. 

at 142). 

8. The pressure transducer is calibrated by comparison to outside staff gauges, and 

this occurs about every six to eight weeks. (2/26/13 Tr. at 142). 

9. On May 9, 2012, the U.S. Geological Survey (USGS) took gauge readings of the 

Willamette River at Salem, Oregon every 15 minutes. (Ex.CG-1; 12/4/12 Tr. at 

82). 

10. The gauge readings are recorded in feet. (12/4/12 Tr. at 83). 

11. These readings are updated hourly and are made publicly available on the USGS 

website. Each hourly update shows the most recent gauge readings in 15-minute 

increments. (12/4/12 Tr. at 88-89). 

12. The USGS uses a hydrologic instrumentation facility to calibrate its gauges. They 

are calibrated to be accurate to within 1/100 of a foot. (12/4/12 Tr. at 90-91). 

13. During the period from April 5th to June 28, the gauge was calibrated and giving 

appropriate readings. (Ex. CG-2, 3; 12/4/12 Tr. at 91). 

14. USGS personnel checked the gauge on May 8, 2013; the pressure transducer gave 

exactly the same reading, 11.97 feet, as the staff gauge in the river. (2/26/13 Tr. at 

174-76). 

7 
15. A staff gauge is one of a series of sticks placed along the river bank that show 

depth measurements. (2/26/13 Tr. at 175-76). 

16. On May 9, 2012, Respondent was the Master onboard the WILLAMETTE 

QUEEN, operating the vessel as required by law. (10/7/12 Stipulation of Facts). 

17. Karen Burkholder is the office manager for the P/V WILLAMETTE QUEEN. 

(Stipulations, 12/4/12 Tr. at 40-41). 

18. Ms. Burkholder misinformed Respondent of the river levels on May 9, 2012, and 

inadvertently provided him with the May 7, 2012 projection levels instead of 

those from the correct date. (Ex. R-B; 2/26/13 Tr. at 40-41). 

19. Respondent did not know what the actual river levels were on the Willamette 

River before getting underway on May 9, 2012. (2/26/13 Tr. at 77). 

20. The only source for determining river level that Respondent had available to him 

when he got underway was the Advance Hydrologic Prediction Service forecast, 

entered as Exhibit R-A. (2/26/13 Tr. at 77). 

21. Respondent used the National Weather Service’s forecast prediction dated May 7, 

2012 to plan his journey for May 9. (Ex. R-A; 2/26/13 Tr. at 38-40). 

22. On May 9, 2012, there were 66 passengers for hire (60 teens and 6 adults from 

Chemawa Indian School) onboard the P/V WILLAMETTE QUEEN. 

(Stipulations, 12/4/12 Tr. at 40-41). 

23. A witness, Weisha Mize, saw the WILLAMETTE QUEEN enter the Willamette 

River on May 9, 2012. (Stipulations, 12/4/12 Tr. at 40-41). 

24. The WILLAMETTE QUEEN was underway at 19:00 hours on May 9, 2012. 

(12/4/12 Tr. at 82). 

8 
25. The WILLAMETTE QUEEN does not have any on-board computers or internet 

service. (2/26/13 Tr. at 40). 

26. Respondent read the forecasts as predicting the water level would still be below 

11 feet at 1700 hours on May 9, 2012. (2/26/13 Tr. at 42). 

27. At 1700 hours, the actual gauge reading at Salem was 11.33 feet. (Ex. CG-1). 

28. The excursion in question was scheduled to commence at 1900 hours, when the 

river height reading at the Salem gauge was 11.25 feet, and conclude at 2000 

hours, when the river height reading was 11.24. (Ex. CG-1, CG-9; 12/4/12 Tr. at 

83). 

29. Every reading taken at the Salem River gauge on May 9, 2012 was above 11 feet, 

and the river did not fall below 11 feet until 0245 hours on May 10, 2013. (Ex. 

CG-1). 

30. USGS measures and reports actual river height while the National Weather 

Service provides a prediction and forecast of what the river might be in the future. 

(2/26/13 Tr. at 94). 

III. DISCUSSION 

A. Principles of Law 

The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. 46 U.S.C. § 7701(a). In furtherance of this goal, Administrative Law Judges 

have the authority to suspend or revoke Coast Guard-issued credentials or endorsements. 

See 46 C.F.R. § 5.19(b). These proceedings are conducted under the Administrative 

Procedure Act (APA). 46 U.S.C. § 7702(a). 

9 
 Section 7(c) of the APA requires the proponent of a rule or order to bear the 

burden of proof unless otherwise provided by statute. The trier of fact must consider the 

“whole record or those parts thereof cited by a party and supported by and in accordance 

with the reliable, probative, and substantial evidence” before assessing a sanction. 5 

U.S.C. § 556(d). The standard of proof in administrative proceedings is the 

“preponderance of the evidence” standard, under which a party must prove that a “fact's 

existence is more likely than not.” Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich 

Collieries v. Dir., Office of Workers’ Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993). 

 Evidentiary rules under the APA are less strict than in jury trials and only 

irrelevant, immaterial, or unduly repetitious evidence need be excluded. See 5 U.S.C. § 

556(d); Gallagher v. Nat’l. Transp. Safety Bd., 953 F.2d 1214, 1214 (10th Cir. 1992); 

Sorenson v. Nat’l. Transp. Safety Bd., 684 F.2d 683, 688 (10th Cir. 1982). Moreover, 

evidence “need not be authenticated with the precision demanded by the Federal Rules of 

Evidence” in order to be admissible in an administrative proceeding. Gallagher at 1218; 

Appeal Decision 2664 (SHEA) (2007). 

 The Coast Guard bears the burden of proof when seeking suspension or 

revocation of a merchant mariner’s credentials. 33 C.F.R. § 20.702(a). As these 

proceedings are conducted under the APA, this means the Coast Guard must prove its 

case by a preponderance of the evidence. Dir., Office of Workers' Comp. Programs v. 

Greenwich Collieries 512 U.S. 267 (1994). In this case, the Coast Guard alleges that 

Respondent committed misconduct by operating a vessel outside the conditions listed on 

its inspection certificate and seeks revocation of Respondent’s MMC. The Coast Guard 

had the burden of proving each of these allegations by reliable, credible, and probative 

10 
evidence showing that it was more likely than not that Respondent had committed the 

violation. 

B. Jurisdiction 

Jurisdiction in misconduct cases is established only if the misconduct occurred 

while the mariner was acting under the authority of his MML or MMC. 46 U.S.C. § 

7703; see also Appeal Decision 2615 (DALE) (2000). The conditions under which a 

mariner acts under the authority of a Coast Guard-issued credential or endorsement are 

found at 46 C.F.R. § 5.57 and include when the holding of such credential or 

endorsement is: (1) required by law or regulation; or (2) required by an employer as a 

condition for employment. 46 C.F.R. § 5.57(a). Additionally, a mariner who is engaged 

in official matters regarding the credential or endorsement may act under the authority of 

such credential or endorsement in situations including, but not limited to, applying for 

renewal, taking examinations for raises of grade, requesting duplicate or replacement 

credentials, or appearing at a suspension or revocation hearing. 46 C.F.R. § 5.57(b). 

While Respondent admitted to the jurisdictional elements of the Complaint, the 

burden of establishing jurisdiction nevertheless remains. See 33 C.F.R. § 20.310(c); 

Appeal Decision 2656 (JORDAN) (stating that, irrespective of Respondent's admission of 

charged offense, appeal must be granted where jurisdiction is not established). 

 The record clearly establishes Respondent was the holder of a United States 

Coast Guard Merchant Mariner’s License and served as Master at all times relevant to 

these allegations. The evidence establishes the WILLAMETTE QUEEN is an inspected 

vessel in the service of Small Passenger Vessel and that its Certificate of Inspection 

requires the vessel’s crew to include a Master. Title 46 U.S.C. § 8902 requires that a 

11 
“small passenger vessel shall be operated by an individual licensed by the Secretary to 

operate that type of vessel in the particular geographic area, under prescribed 

regulations.” 

Title 46 C.F.R. § 15.515 requires that vessels subject to inspection under 46 

U.S.C. § 3301 must, while on a voyage, be under the direction and control of an 

individual who holds an appropriate license or appropriate officer endorsement on their 

MMC and that no vessel may be operated unless it has in its service and on board, the 

complement required by the COI. If a law or regulation requires a person serving in a 

position to hold a license, certificate of registry, merchant mariner's document, 

transportation worker identification credential, and/or merchant mariner credential, an 

individual cannot serve in that position unless he holds all the credentials required. 46 

C.F.R. § 15.401. 

In this case, the weight of the evidence clearly establishes Respondent was the 

holder of an appropriate MML and was acting as master of the WILLAMETTE QUEEN 

during its excursion on May 9, 2012, as required by law and regulation. Therefore, I find 

Respondent was acting under the authority of his MML all times relevant to these 

allegations and, accordingly, find jurisdiction established pursuant to 46 C.F.R. § 

5.57(a)(1). 

C. Misconduct 

 The Coast Guard has charged Respondent with misconduct, which is defined in 

the regulations as: 

[A] human behavior which violates some formal, duly 

established rule. Such rules are found in, among other 

places, statutes, regulations, the common law, the general 

maritime law, a ship’s regulation or order, or shipping 

12 
articles and similar sources. It is an act which is forbidden 

or a failure to do that which is required. 

46 C.F.R. § 5.27. The basis of this charge is that Respondent operated the P/V 

WILLAMETTE QUEEN in violation of the conditions listed on its COI. 

1. Operation Subject to a Certificate of Inspection 

United States law requires certain vessels to undergo safety inspections conducted 

by the U.S. Coast Guard. 46 U.S.C. § 3301. Small passenger vessels, meaning those of 

less than 100 gross tons that carry 150 or fewer passengers or have overnight 

accommodations for 49 or fewer passengers, are included in the categories of inspected 

vessels if they carry more than six passengers, including at least one for hire. Id.; 46 

C.F.R. § 175.110. 

Under 46 C.F.R. § 175.400, the term Passenger means any “individual carried on 

a vessel, except: (1) The owner or an individual representative of the owner, or in the 

case of a vessel under charter, an individual charterer or individual representative of the 

charterer; (2) The master; or (3) A member of the crew engaged in the business of the 

vessel who has not contributed consideration for carriage and who is paid for on board 

services.” The term Passenger for hire means “a passenger for whom consideration is 

contributed as a condition of carriage on the vessel, whether directly or indirectly flowing 

to the owner, charterer, operator, agent, or any other person having an interest in the 

vessel.” Id.

The WILLAMETTE QUEEN is a vessel under 100 gross tons that carries more 

than six passengers and therefore is subject to inspection. (10/7/12 Stipulation of Facts). 

The WILLAMETTE QUEEN was issued a COI on October 29, 2007 which was valid 

through October 29, 2012. (10/7/12 Stipulation of Facts; 46 C.F.R. § 176.107(b)). A COI 

13 
describes the vessel, the route(s) that it may travel, the minimum manning requirements, 

the survival and rescue craft carried, the minimum fire extinguishing equipment and 

lifejackets required to be carried, the maximum number of passengers and total persons 

that may be carried, the number of passengers the vessel may carry in overnight 

accommodation spaces, the name of the owner and managing operator, any equivalencies 

accepted or authorized by the Commandant or any Officer in Charge, Marine Inspection 

(OCMI), and such other conditions of operations as determined by the OCMI. 46 C.F.R. 

§ 176.103. 

After the Coast Guard determines the area of operation, referred to as a route, for 

each inspected vessel, as well as any necessary operational limits and/or extensions, the 

route is described by reference to bodies of waters, geographical points, distance from 

geographical points, distances from land, depths of channel, seasonal limitations, and 

similar factors. 46 C.F.R. § 176.110(a). When designating a route or imposing 

operational limits on a vessel, the Coast Guard may consider the performance capabilities 

of the vessel based on design, stability, propulsion, speed, operating modes, 

maneuverability, and other characteristics. 46 C.F.R. § 176.110(d)(2). 

Vessels must comply with any conditions listed on the COI, unless relieved by a 

suspension or an exemption granted under section 46 U.S.C. § 3306(e). 46 U.S.C. § 3313. 

Whenever passengers are on board, a small passenger vessel must operate in full 

compliance with the terms of a COI. 46 C.F.R. § 176.100(b). A mariner who operates a 

vessel in violation of the COI commits misconduct. See, e.g., Appeals Decisions 715 

(ROLL) (1953); 2308 (GRAY) (1983); 2299 (BLACKWELL) (1983). 

14 
Here, the COI states and the parties have stipulated that the WILLAMETTE 

QUEEN’s route of operation is restricted when the Salem River Gauge reads 11 feet or 

more. When the river height measured at the Salem River Gauge is over 11 feet, the 

vessel’s operation is limited to the Willamette Slough located behind Minto Browns 

Island. 

2. Coast Guard’s Position 

The Coast Guard has charged Respondent with committing an act of Misconduct 

for violating an operating condition listed on the P/V WILLAMETTE QUEEN’s COI. 

The operating condition states, “When the river gauge at Salem reads 11ft or more, the 

vessel’s operation is limited to the Willamette Slough located behind Minto Browns 

Island.” This operational condition was added to the vessel’s COI in November 2009 and 

was in effect on May 9, 2012. The Coast Guard asserts that on May 9, 2012, the 

Willamette River gauge at Salem was above 11 feet for the entire day and that in his 

testimony, Respondent admitted to not checking the Salem River Gauge on May 9, 2012 

and to entering the Willamette River that day. (CG Closing Brief). 

3. Respondent’s Defenses 

 Respondent attempted to rebut the Coast Guard’s case in three ways: first, by 

showing the gauge was inaccurate; second, by showing there was a reasonable alternate 

method on which he could rely to judge the level of the river; and third, by raising the 

argument that the conditions of the amended COI are arbitrary and unfairly restrict his 

ability to operate. For the following reasons, Respondent’s three arguments fail. 

 Respondent attempted to call the Salem River Gauge’s accuracy into question 

through the testimony of Philip Pasteris, a hydrologist and meteorologist who had 

15 
previously worked at the River Forecast Center for NOAA. (2/26/13 Tr. at 79). Mr. 

Pasteris stated that various river events can affect the river height and cause predictions to 

be off when they are derived from ratings tables and streamflow measurements. (2/26/13 

Tr. at 83). He opined that “a strict interpretation of the 11-foot restriction on navigation 

cannot be enforced based on the best available information available to the public” due to 

inherent inaccuracies in both streamflow measurements and the Northwest River Forecast 

Center model calibration, and uncertainties in Corps of Engineers forecast reservoir 

releases. (2/26/13 Tr. at 86-87). He suggests that instead “an upper and lower gauge 

height range centered on 11 feet should be used using the USGS quality code as guidance 

in partnership with local navigation expertise.” (Id.) 

 Respondent also attempted to show the gauge at Salem was giving measurements 

that were, in and of themselves, inaccurate. The Coast Guard is charged with determining 

the area of operation for each inspected vessel and establishing any necessary operational 

limits. Here the Coast Guard used the river level as a measure, instead of streamflow or 

current. Part of Respondent’s expert’s testimony was based on the use of a stilling well 

gauge to measure river height, but the evidence established USGS measures the actual 

height of the river by using a pressure transducer, which gives real-time readings and 

displays them in 15-minute increments on the agency’s website. (2/26/12 Tr. at 142). Use 

of the stilling well had been discontinued around 2006. (2/26/13 Tr. at 150). The 

evidence also showed the pressure transducer gauge had recently been calibrated and was 

giving accurate readings at the relevant time. 

 In his closing brief, Respondent argues that, due to the fact the gauge data is 

considered accurate if it is within 5% of the true reading, he would not be out of 

16 
compliance with the COI unless the river height was above 11.82 feet. This appears to 

stem from a misreading of the hearing testimony. All discussion of a 5% margin of error 

at the hearing related to stream discharge flow measurements and ratings table 

development, not to actual gauge height measurements made using a pressure transducer. 

No testimonial or documentary evidence has established that the 5% margin of error does 

or should apply to the height rather than flow of the river. Moreover, the plain language 

of the COI states that the WILLAMETTE QUEEN’s operation is restricted “when the 

river gauge at Salem reads 11 ft or more,” and a mariner would have no way of knowing 

whether the precise accuracy of the measurement at any given time. Respondent’s 

position is both unsupported by the evidence and not a reasonable reading of the COI, 

and I therefore reject it. 

 While I accept as true that forecasts of river height are likely to become inaccurate 

due to rain, runoff, releases from upriver dams, or other such events, Respondent did not 

show any of these events caused the pressure transducer gauge to give inaccurate 

readings, nor did he show the Coast Guard’s reliance on river height as a measure of 

operating limitations was erroneous. 

 Respondent attempted to show the NOAA forecast was a reasonable alternate way 

of determining river level. I do not find this argument persuasive. He testified his 

secretary obtained the NOAA forecast online and the WILLAMETTE QUEEN has no 

internet service onboard. (2/26/13 Tr. at 40-41). However, he did not explain why his 

secretary could not have accessed the USGS data as easily as the NOAA data. Nor did he 

explain why he failed to notice the information he relied on to plan his voyage was 

outdated. Although the NOAA data is predictive and the USGS website only shows 

17 
readings that have already been obtained, Respondent should have ensured he was using 

the most recent and accurate data available before undertaking any excursion. 

 Finally, Respondent raised the argument that the conditions of the amended COI 

are arbitrary and unfairly restrict his ability to operate. (5/16/13 Tr. at 121). He believes 

the granting of exemptions for particular journeys is confusing, as the COI was put in 

place because the Coast Guard does not think the vessel can safely operate in waters 

above 11 feet but is nevertheless willing to issue a temporary permit for the vessel to sail 

in waters up to 18 feet. (5/16/13 Tr. at 123-24). 

 The question of whether the 11-foot restriction on the COI is arbitrary and/or 

unfair is not properly before me. Under Coast Guard regulations, “[a]ny person directly 

affected by a decision or action taken under this subchapter, by or on behalf of the Coast 

Guard, may appeal therefrom in accordance with [46 C.F.R.] §1.03...” 46 C.F.R. § 

175.560. The procedures for requesting an amended COI are at 46 C.F.R. § 176.120, and 

a vessel is bound by the existing conditions until such time as the COI is amended again 

or a new COI is issued. BLACKWELL, supra; see also USCG v. Chesbrough, 2011-0224 

(ALJ Decision 7/25/12). 

D. Conclusion. 

The WILLAMETTE QUEEN was required to comply with the conditions listed 

on its COI at any time it operated with at least six passengers, including at least one 

paying passenger, aboard. 46 C.F.R. § 176.100(b). On May 9, 2012, the vessel was 

carrying sixty-six paying passengers. (12/4/12 Tr. at 40). There is no evidence in the 

record that the WILLAMETTE QUEEN had been granted a suspension or exemption 

18 
from its COI on May 9, 2012.4

 I find the WILLAMETTE QUEEN was bound by law to 

operate in accordance with the conditions listed on its COI during its May 9, 2012 

excursion. 

The evidence clearly establishes Respondent was the master of the 

WILLAMETTE QUEEN on May 9, 2012 and was responsible for determining the 

vessel’s operating plan. After reviewing the NOAA forecasts for river stage, Respondent 

decided to navigate the WILLAMETTE QUEEN into the Willamette River without first 

determining that, in doing so, he would remain in compliance with the vessel’s COI. The 

terms of the COI clearly state the river gauge at Salem is the mechanism used for 

determining the river’s height for purposes of compliance with the COI, and 

Respondent’s decision to rely on an alternate method of calculating river level was at his 

own risk. 

 The evidence also establishes that the water level in the Willamette River was at 

all relevant times above 11 feet, and the vessel was not permitted to operate in the main 

stem of the river unless the water level was below 11 feet. I find the preponderance of the 

evidence establishes that Respondent operated the WILLAMETTE QUEEN in violation 

of its COI on May 9, 2012. I therefore find the factual allegation of misconduct 

PROVED. 

 

4

 Respondent indicated that he had been granted an exemption from the 11-foot restriction on the COI at 

one point and was permitted to carry 80 passengers in levels up to 18 feet on a voyage to Portland. (Tr. at 

122; R EX M). However, he did not argue that there was any exemption in place during the May 9, 2012 

excursion. 

19 
20 

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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

jurisdiction of the United States Coast Guard and the undersigned in accordance 

with 46 U.S.C. § 7703, 46 C.F.R. Part 5, and 33 C.F.R. Part 20. 

2. Respondent was the holder of a United States Coast Guard-issued Merchant 

Mariner’s License, which has since expired and been replaced by a Merchant 

Mariner’s Credential with endorsements. 

3. On May 9, 2012, Respondent was acting under the authority of his MML as the 

captain of the small inspected passenger vessel WILLAMETTE QUEEN. 

4. On May 9, 2012, the water level in the Willamette River was at 11.17 feet as 

measured at the Salem River Gauge. 

5. The Certificate of Inspection for the WILLAMETTE QUEEN restricts the vessel 

to the Willamette Slough when the river is above 11 feet, as measured at the 

Salem River Gauge. 

6. On May 9, 2012, Respondent maneuvered the WILLAMETTE QUEEN into the 

Willamette River when the river was above 11 feet as measured at the Salem 

River Gauge in violation of the COI. 

7. The factual allegation of “misconduct” against Respondent for operating the 

WILLAMETTE QUEEN in violation of its conditions of inspection is found 

PROVED by a preponderance of the evidence.

V. SANCTION 

Having found the allegations proved, I must now issue an appropriate order in this matter. 

33 C.F.R. § 20.902(a)(2). “An Administrative Law Judge has wide discretion to formulate an 
order adequate to deter the [a mariner’s] repetition of the violations he was found to have 

committed.” Appeal Decision 2475 (BOURDO) (1988). 

A. Factors Considered in Determining an Appropriate Order 

Coast Guard regulations detail the factors to be considered in determining an appropriate 

order. 46 C.F.R. § 5.569. “The selection of an appropriate order is the responsibility of the 

Administrative Law Judge, subject to appeal and review. The investigating officer and the 

respondent may suggest an order and present argument in support of this suggestion during the 

presentation of aggravating or mitigating evidence.” 46 C.F.R. § 5.569(a). I am not bound by the 

Coast Guard’s recommendations. 

In determining an appropriate sanction, an ALJ may consider the following factors: (1) 

remedial actions which have been undertaken independently by Respondent; (2) the prior record 

of Respondent, considering the period of time between prior acts and the act or offense for which 

presently charged is relevant; and (3) evidence of mitigation or aggravation. See 46 C.F.R. § 

5.569(b). 

These rules include a Table entitled “Suggested Range of an Appropriate Order,” stating 

Table 5.569 “is for the information and guidance of Administrative Law Judges and is intended 

to promote uniformity in orders rendered. This table should not affect the fair and impartial 

adjudication of each case on its individual facts and merits.” 46 C.F.R. § 5.569(d). 

In Coast Guard suspension and revocation cases, “[t]he sanction imposed in a particular 

case is exclusively within the authority and the discretion of the ALJ,” who is not bound by the 

scale of average orders. Appeal Decision 2628 (VILAS) (citing Appeal Decisions 2362 

(ARNOLD) and 2173 (PIERCE)). “In the absence of a gross departure from the Table of 

Recommended Awards, the order of the ALJ will not be disturbed on review.” Appeal Decision 

2628 (VILAS) (citing Appeal Decision 1937 (BISHOP)). 

21 
However, in Coast Guard v. Moore, NTSB Order No. EM-201 (2005), the National 

Transportation Safety Board (NTSB) disapproved a license revocation order in a refusal to test 

case because the Coast Guard neither proved, nor did the ALJ find, specific factors in 

aggravation sufficient to depart from the guidance provided in 46 C.F.R. Table 5.569. The NTSB 

stated that “unless and until the Coast Guard changes its regulation, we will not uphold an 

upward departure from the policy currently embodied in the Coast Guard's regulation without a 

clearly articulated explanation of aggravating factors.” The Commandant has recognized that 

policy in Appeal Decision 2694 (LANGELY) (2011) and the NTSB has reiterated its position in 

Commandant v. Ailsworth, NTSB Order No. EM-211 (2012). 

B. The Parties’ Arguments Regarding Sanction. 

 The Coast Guard has requested that Respondent’s MMC be revoked. The Coast Guard 

argues Respondent “was fully aware of the conditions set forth on the Certificate of Inspection 

and consciously violated it by operating the vessel in the Willamette River with the Salem river 

gauge reading over 11 feet” and “has shown a clear historical pattern of not abiding by 

conditions and restrictions contained in his vessel's Certificate of Inspection.” The Coast Guard 

also pointed out that over sixty paying passengers were aboard, most of whom were children. 

 The Coast Guard points to two previous matters as aggravating factors: first, Respondent 

settled with the Coast Guard in June 2003 in Docket Number CG S&R 03-0371 (Ex. CG-11), 

and second, a recent decision from July 2012, Docket # 2011-0224 (Ex. CG-12). The prior 

disciplinary record of a respondent comprises certain items less than 10 years old including 

“[f]inal agency action by the Coast Guard on any S&R proceeding in which a sanction or consent 

order was entered.” 33 C.F.R. § 20.1315(a)(2). The consent order issued in CG S&R 03-0371 

was just less than 10 years old at the hearing in May. The decision in Docket # 2011-0224 was 

appealed on August 6, 2012. According to 33 C.F.R. § 20.1101(b), until the Commandant issues 

22 
an appeal decision in this matter, that decision is not final agency action. Accordingly, I cannot 

consider that decision as prior disciplinary record. 

With respect to the consent order issued in CG S&R 03-0371, the record shows 

Respondent settled with the Coast Guard in June 2003, agreed to a suspension of 50 days, and 

agreed to complete a course during the suspension period. The regulations limit the amount of 

time in which prior cases may be introduced to ten years; at the time of the hearing in this matter, 

the prior settlement was nearly ten years old. The substance of the allegations in that case was 

not introduced into evidence,5 and pursuant to the agreement the Respondent did not admit or 

deny the allegations. I do not see a sufficient nexus with this case to give it significant weight. I 

will consider it only for the fact that Respondent credentials were previously suspended for 50 

days. 

 The Coast Guard also points to statements made during the 2011 Suspension and 

Revocation hearing (Docket # 2011-0224). At the September 20, 2011 hearing in that matter, 

both Mr. and Mrs. Chesbrough stated they had changed their pre-voyage procedures to ensure 

they would be in compliance regarding the Salem river gauge in the future. (Ex. CG-13; 2/26/13 

Tr. at 116-20 and 154). While the procedures Respondent followed on May 9, 2012 do differ 

from those at issue in the previous case, they were still insufficient to ensure compliance. 

Moreover, even though Respondent has denied the allegations, he asserts any violation in this 

case would be minimal. Respondent likens the violation here to driving 55.83 miles per hour in a 

zone marked 55. (2/26/13 Tr. at 204). He contends this analogy shows how nonsensical the Coast 

Guard’s argument is. (Id.) 

 

5

 The Coast Guard did describe the underlying violations in its Post-Hearing Brief, however, the documentation 

submitted into evidence during the hearing does not contain any of that detail. As the information supplied in the 

Post-Hearing Brief is argument, not evidence, it would not be appropriate for me to accept it as fact or consider it 

when reaching my decision. If the Coast Guard wished me to consider the substance of the 2003 violation in 

addition to the existence of a Settlement Agreement and Consent Order, it should have submitted sufficient 

documentation into evidence. 

23 
 The Coast Guard is seeking revocation in this matter. Coast Guard regulations include 46 

C.F.R. 5.61 entitled acts or offenses for which revocation of credentials is sought. The act found 

proved here is not among the 11 enumerated offenses for which revocation is routinely sought. 

The rules also state that an “investigating officer may seek revocation of a respondent's 

credential or endorsements when the circumstances of an act or offense found proved or 

consideration of the respondent's prior record indicates that permitting such person to serve 

under the credential or endorsements would be clearly a threat to the safety of life or property, or 

detrimental to good discipline.” 46 C.F.R. § 5.61(b). 

Passenger safety is of paramount concern, and a mariner should act with the highest level 

of care when transporting passengers. Appeal Decisions 2698 (HOCKING) (2012) and 2618 

(SINN) (2000); see also Huron Portland Cement Co. v. City of Detroit, Mich. 362 U.S. 440, 445. 

However, in this case, there was no evidence that Respondent’s decision to operate when the 

water level was slightly above the height permitted by the COI placed any passengers, crew, or 

other vessels on the river in any degree of danger. The streamflow between 11.0 and 11.05 feet is 

not significantly different. (Ex.CG-14). In the absence of such evidence, I cannot consider this to 

be a credible aggravating factor for purposes of the sanction. 

In contrast, the Commandant found revocation appropriate in Appeal Decision 2654 

HOWELL for failing to give a safety orientation before departure where the Respondent's 

cavalier attitude towards safety contributed to the deaths of passengers. While the record 

establishes that this Respondent has a significant and continuing disagreement with the Coast 

Guard over the need for the current operating restriction on his vessel, the record does not 

demonstrate that Respondent has such an cavalier attitude or total disregard for safety that 

warrants revocation. 

The Commandant also found revocation to be appropriate in Appeal Decision 2524 

(TAYLOR) (1991) where the “record clearly reflects an intentional, calculated course of conduct 

24 
to circumvent or disregard a previous suspension order of the Administrative Law Judge.” As 

noted above, while I have issued a previous order relating to Respondent, it was issued in July 

2012 and the incident at issue here took place in May 2012. Moreover, the order is currently 

under appeal and not in effect. Since the incident predated my order and the order has not taken 

effect even now, Respondent could not have undertaken an intentional and calculated course of 

conduct to circumvent or disregard it. Accordingly, I do not find TAYLOR to be controlling 

here. 

Here, the Coast Guard has not introduced sufficient evidence to support the aggravated 

sanction it seeks. I cannot find that this Respondent clearly presents a threat to the safety of life 

or property, or that his continued service under his credential or endorsements is necessarily 

detrimental to good discipline. 

However, I am concerned with the disparity between Respondent’s statements about 

complying with the COI and his actions. Despite his earlier assurances, he has not demonstrated 

he takes the restriction on the COI seriously enough that he will use the best available measures 

to ensure compliance. This is considered an aggravating circumstance. 

C. Conclusions as to Sanction 

 The proposed sanction in this case is premised on one allegation of misconduct for 

violating the vessel’s COI, as well as several factors articulated by the Coast Guard to be 

aggravating. In the Table entitled “Suggested Range of an Appropriate Order,” codified at 46 

C.F.R. § 5.569, the suggested penalty range for misconduct for “Failure to comply with U.S. law 

or regulations” is 1-3 months suspension. The regulations explain how an ALJ may apply the 

“Suggested Range of an Appropriate Order” Table, noting that: 

The orders are expressed by a range, in months of outright suspension, 

considered appropriate for the particular act or offense prior to considering 

matters in mitigation or aggravation. For instance, without considering 

other factors, a period of two to four months outright suspension is 

25 
considered appropriate for failure to obey a master’s written instructions. 

An order within the range would not be considered excessive. Mitigating 

or aggravating factors may make an order greater or less than the given 

range appropriate. Orders for repeat offenders will ordinarily be greater 

than those specified. 46 C.F.R. § 5.569(d) 

 As I have found the allegations proved but have not found the aggravating factors 

articulated by the Coast Guard sufficient to warrant an increased sanction beyond the Table, the 

most severe sanction the Table of Appropriate Orders supports is 3 months. Respondent operated 

outside the scope of the route allowed in the COI. Respondent was well aware of the limitations 

placed on the WILLAMETTE QUEEN but chose not to verify the official gauge reading prior to 

boarding his vessel. Instead, Respondent chose to rely on a NOAA forecast which was both 

outdated and inaccurate. Still, the river level was only slightly above the limit. Normally, such a 

circumstance would warrant a sanction at the low end of the range. 

 The decision to undertake a voyage or stay at the dock is the responsibility of the Master. 

Likewise is the decision whether the voyage should continue or whether the vessel should return 

to the dock. Respondent’s actions operating in violation of the COI could potentially have 

compromised the safety of the vessel and the passengers. Fortunately, in this case there was no 

evidence the passengers were actually endangered and the excursion concluded safely. However, 

as a prudent mariner Respondent should have recognized the regulations and the conditions of 

his vessel’s operation do not allow for flexibility and the laws must be obeyed. Respondent had 

previously stated he would comply with the river gauge readings rather than his visual 

observations. Instead, he relied on NOAA river forecasts that are not as reliable as the USGS 

gauge. 

 In light of the evidence presented, I find the aggravated sanction sought by the Coast 

Guard clearly inappropriate. Nevertheless, given the single aggravating circumstance discussed 

above and the fact that Respondent was once assessed a prior sanction of 50 days, a higher 

26 
sanction than the minimum one month penalty suggested in the Table is warranted here. I 

therefore assess a sanction of two months outright Suspension.6

ORDER

IT IS HEREBY ORDERED that the Allegations in the Complaint are found PROVED; and 

IT IS HEREBY FURTHER ORDERED that Respondent’s Mariner’s Credential is 

SUSPENDED for two months. 

SO ORDERED. 

__________________________________________________ 

George J. Jordan 

US Coast Guard Administrative Law Judge

Date: September 18, 2013

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 C.F.R. § 20.1001 – 20.1004. 

 

6

 Normally, I would also assess a probationary order to deter future violations, but since I have issued such an order 

in Docket # 2011-0224which is currently under appeal, a further probationary order at this time would serve little 

purpose. Therefore a simple outright suspension for this violation is appropriate.

27 
APPENDIX A: APPEALS

Procedural Rules for Appeals

33 C.F.R. § 20.1001 General. 

(a) Any party may appeal the ALJ’s decision by filing a notice of appeal. The 

party shall file the notice with the U. S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022. The party shall file the notice 30 days or less after 

issuance of the decision, and shall serve a copy of it on the other party and each 

interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, 

precedent, and public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ’s denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that 

no hearing was held or that in the issuance of the decision the ALJ did not 

consider evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 C.F.R. § 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the 

record of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast 

Guard will provide the transcript on payment of the fees prescribed in 49 

CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 C.F.R. § 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ’s decision or ruling shall file an appellate brief 

with the Commandant at the following address: U.S. Coast Guard Administrative 

Law Judge Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. 

Gay Street; Baltimore, MD 21201-4022, and shall serve a copy of the brief on 

every other party. 

(1) The appellate brief must set forth the appellant's specific objections to 

the decision or ruling. The brief must set forth, in detail, the -- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the 

appellate brief must specifically refer to the pertinent parts of the record. 

i 
(3) The appellate brief must reach the Docketing Center 60 days or less 

after service of the ALJ’s decision. Unless filed within this time, or within 

another time period authorized in writing by the Docketing Center, the 

brief will be untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less 

after service of the appellate brief. Each such party shall serve a copy on every 

other party. If the party filing the reply brief relies on evidence contained in the 

record for the appeal, that brief must specifically refer to the pertinent parts of the 

record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which 

event the Commandant will allow a reasonable time for the party to file 

that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an 

appeal of an ALJ’s decision. 

33 C.F.R. § 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the 

ALJ committed error in the proceedings, and whether the Commandant should 

affirm, modify, or reverse the ALJ’s decision or should remand the case for 

further proceedings. 

(b) The Commandant shall issue a decision on every appeal in writing and shall 

serve a copy of the decision on each party and interested person 

Additional Rules Concerning Appeals from 46 C.F.R. Part 5

46 C.F.R. § 5.701 Appeals in general. 

A party may appeal the decision of an ALJ under the procedures in subpart J of 33 

CFR part 20. A party may appeal only the following issues: 

(a) Whether each finding of fact rests on substantial evidence. 

(b) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(c) Whether the ALJ committed any abuses of discretion. 

(d) The ALJ’s denial of a motion for his or her disqualification. 

46 C.F.R. § 5.707 Stay of effect of decision and order of Administrative Law Judge 

on appeal to the Commandant; temporary credential or endorsement. 

(a) A person who has appealed from a decision suspending outright or revoking a 

credential or endorsement, except for revocation resulting from an offense 

enumerated in §5.59, may file a written request for a temporary credential or 

endorsement. This request must be submitted to the Administrative Law Judge 

ii 
who presided over the case, or to any Officer in Charge, Marine Inspection for 

forwarding to the Administrative Law Judge. 

(b) Action on the request is taken by the ALJ unless the haring transcript has been 

forwarded to the Commandant, in which case, the Commandant will make the 

final action. 

(c) A determination as to the request will take into consideration whether the 

service of the individual is compatible with the requirements for safety at sea and 

consistent with applicable laws. If one of the offenses enumerated in § 5.61(a) has 

been found proved, the continued service of the appellant will be presumed not 

compatible with safety at sea, subject to rebuttal by the appellant. A temporary 

credential or endorsement may be denied for that reason alone. 

(d) All temporary credentials or endorsements will provide that they expir4e not 

more than six months after issuance or upon service of the Commandant’s 

decision on appeal, whichever occurs first. If a temporary credential expires 

before the Commandant’s decision is rendered, it may be renewed, if authorized 

by the Commandant. 

(e) If the request for a temporary credential or endorsement is denied by the 

Administrative Law Judge, the individual may appeal the denial, in writing, to the 

Commandant within 30 days after notification of such denial. Any decision by the 

Commandant to deny is the final agency action. 

(f) Copies of the temporary credential issued become a party of the record on 

appeal. 

§ 5.713 Appeals to the National Transportation Safety Board. 

(a) The rules of procedure for appeals to the National Transportation Safety Board 

from decisions of the Commandant, U.S. Coast Guard, affirming orders of 

suspension or revocation of credentials or endorsements are in 49 CFR part 825. 

These rules give the party adversely affected by the Commandant’s decision 10 

days after service upon him or his attorney of the Commandant’s decision to file a 

notice of appeal with the Board. 

(b) In all cases under this part which are appealed to the National Transportation 

Safety Board under 49 CFR part 825, the Chief Counsel of the Coast Guard is 

designated as the representative of the Commandant for service of notices and 

appearances. Communications should be addressed to Commandant (CG–094), 

U.S. Coast Guard, 2100 2nd St. SW., Stop 7121, Washington, DC 20593–7121. 

(c) In cases before the National Transportation Safety Board the Chief Counsel of 

the Coast Guard may be represented by others designated of counsel. 

§ 5.715 Stay of effect of Decision of the Commandant on Appeal: Temporary 

credential and/or endorsement pending appeal to National Transportation Safety 

Board. 

(a) A Decision of the Commandant on Appeal affirming an order of revocation, 

except a revocation resulting from an offense enumerated under § 5.59 or 

suspension that is not placed entirely on probation, which is appealed to the 

National Transportation Safety Board, may be stayed if, in the Commandant’s 

iii 
iv 

opinion, the service of the appellant on board a vessel at that time or for the 

indefinite future would be compatible with the requirements of safety at sea and 

consistent with applicable laws. If one of the offenses enumerated in § 5.61(a) has 

been found proved, the continued service of the appellant will be presumed not 

compatible with safety at sea, subject to rebuttal by the appellant; in cases of 

offenses under § 5.61(a), a temporary credential and/or endorsement may be 

denied for that reason alone. 

(b) A stay of the effect of the Decision of the Commandant on Appeal may be 

granted by the Commandant upon application by the respondent filed with the 

notice served on the Commandant under 49 CFR 825.5(b). 

(c) An Officer in Charge, Marine Inspection, on presentation of an original stay 

order, issues a temporary credential and/or endorsement as specified in the stay 

order. This credential and/or endorsement is effective for not more than six 

months, renewable until such time as the National Transportation Safety Board 

has completed its review. 
APPENDIX B: LIST OF WITNESSES AND EXHIBITS

Witnesses:

For the Coast Guard:

 Richard Kittelson 

For the Respondent:

 Richard Chesbrough, Respondent 

 Phillip Pasteris 

 Paul Simonis 

Exhibits:

For the Coast Guard:

CG-1 USGS Table of Gauge Heights for May 9-10, 2012 

CG-2 USGS Discharge Measurement and Gauge Inspection Notes from 

April 5, 2012 

CG-3 USGS Discharge Measurement and Gauge Inspection Notes from 

May 8, 2012 

CG-4 USGS Discharge Measurement and Gauge Inspection Notes from 

June 28, 2012 

CG-5 NWS Willamette River Gauge Readings at Salem for May 7, 2012 

CG-6 NWS Willamette River Gauge Readings at Salem for May 9, 2012 

CG-7 Willamette River Gauge Readings from Statesman Journal for 

May 9, 2012 

CG-8 Email Correspondence from Karen Burkholder to Coast Guard 

dated May 18, 2012 

CG-9 Dinner Cruise Booking Log for Willamette Queen, May 9, 2012 

CG-11 Coast Guard Letter of Warning dated April 29, 2002 issued to 

Respondent 

CG-12 Decision and Order dated July 25, 2012, Docket No. 2011-0224 

(Cover Page Only) 

CG-13 Excerpts from September 20, 2011 Hearing Transcript in Docket 

No. 2011-0224 

CG-14 USGS Expanded Rating Table Updated April 4, 2012 

CG-15 Gauge Height vs. Discharge Chart for Willamette River at Salem 

Starting January 3, 2013 

v 
vi 

For Respondent:

R-A USGS Table for Salem Gauge, May 3-12, 2012 

R-B Email from Karen Burkholder to Coast Guard dated May 18, 2012 

R-C Email from Karen Burkholder to Chief Collins dated May 18, 

2012 

R-D Email from Andy Bryant to Respondent dated Jan. 3, 2013 

R-E Comparative Analysis of Gauge and Stream Flow Readings 

R-I Excerpts from Sept. 20, 2011 Hearing – Testimony of Paul 

Thunberg 

R-L Copy of 46 C.F.R. 176.110 

R-M Jan. 25, 2010 Letter from Capt. F.G. Myer to Respondent 

Regarding Excursion Permit 

R-O Resume of Philip Pasteris 
APPENDIX C: RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS 

OF LAW

The Coast Guard’s Proposed Findings of Fact 

1. The WILLAMETTE QUEEN is a Small Passenger Vessel regulated under 46 CFR Subchapter 

T. (1) (2) 

Accepted and incorporated. 

2. On May 09, 2012, the P/V WILLAMETTE QUEEN’s conditions of operation section on the 

COI stated the following: “When the river gauge at Salem reads 11 feet or more, the vessels 

operation is limited to the Willamette Slough located behind Minto Browns Island”. (1) 

Accepted and incorporated. 

3. Captain Chesbrough was aware of the condition of the river stage height on the vessel’s COI. 

(16) 

Accepted and incorporated. 

4. On May 09, 2012, prior to getting the P/V WILLAMETTE QUEEN underway for the evening 

dinner cruise, Mr. Chesbrough checked the NOAA printout dated May 07, 2012. The NOAA 

printout that he had in his possession was the one that his secretary had provided to him. (5) & 

(15) 

Accepted and incorporated. 

5. The NOAA reading that the Respondent utilizes for Salem River level readings was 11.58 feet 

on May 09, 2012. (CG Exhibit 06) 

Accepted as to what the document says, but noted that this forecast was for 1000 hours, 

not the relevant time of 1800-2000 hours. 

6. The P/V WILLAMETTE QUEEN was captained by Mr. Richard Albert Chesbrough as 

required by law or regulation. (12) 

Accepted and incorporated. 

7. On May 09, 2012, Mr. Richard Albert Chesbrough acted under the authority of Merchant 

Mariner License # 1215480. (4) & (13) 

Accepted and incorporated. 

8. On May 09, 2012, there were 66 passengers (60 teens & 6 adults from Chemawa Indian 

School) for hire onboard the P/V WILLAMETTE QUEEN. (4) 

Accepted and incorporated. 

9. On May 09, 2012, at approximately 1900 hrs, the P/V WILLAMETTE QUEEN, entered into 

the Willamette River. (2) & (3) 

 Accepted and incorporated. 

10. On May 09, 2012, at 1900 hrs, the Willamette River gauge reading was 11.25 feet. (7) 

Accepted and incorporated.

vii 
11. The dinner cruise ran from approximately 1800 hrs until 2000 hrs. There was approximately 

one hour that the P/V WILLAMETTE QUEEN was dockside. During the dinner cruise at 

approximately 1900 hrs, on May 09, 2012, Mr. Chesbrough navigated the P/V WILLAMETTE 

QUEEN into the Willamette River. (3) 

Accepted and incorporated.

12. Salem River gauge readings for the Willamette River on May 09, 2012 were above 11 feet. 

(6) & (7). 

Accepted and incorporated.

13. The Salem River gauge is the only accurate way of checking the actual river height. There 

are no other river gauges in Salem, OR. (10) 

Accepted and incorporated.

14. The U.S. Geological Survey provides updates and accurate real time river guage readings 

every 15 minutes on USGS’ website. (9) 

Accepted and incorporated.

15. USGS conducted an accuracy check on the Salem River in April, May and June 2012 with no 

discrepancies identified. (8) 

Accepted and incorporated.

16. Upon entering the Willamette River, Mr. Chesbrough committed an act of mariner 

misconduct by operating the P/V WILLAMETTE QUEEN in violation of a condition of the 

vessel's COI. (5) & (14) 

Rejected as a proposed conclusion of law rather than finding of fact. 

The Coast Guard’s Proposed Conclusions of Law 

1. On May 09, 2012, the Respondent had knowledge of the river stage and the restrictions on the 

vessels COI; and he made the decision to enter the river in violation of the COI. Based on the 

definition of Misconduct in 46CFR5.27, the respondent violated a formal duly established rule. 

Accepted and incorporated. 

The Respondent previously violated the 11 ft amendment of his Certificate of Inspection (Docket 

# 2011-0224- D & O is on appeal). 

Rejected. Docket #2011-0224 is not yet final agency action, thus I cannot conclude that 

the findings made in the Decision in that case constitute evidence of a previous violation. 

Respondent’s Proposed Findings of Fact and Conclusions of Law 

 As stated in the Decision, a document entitled Respondent’s Post-Hearing Brief 

(Proposed Findings of Fact, Proposed Conclusions of Law, and Argument in Support Thereof) 

was submitted on the behalf of the Respondent. The cover sheet states the sender’s name as 

Richard Chesbrough, but the document was apparently prepared by Barbara Chesbrough, the 

owner of the WILLAMETTE QUEEN. She is also Respondent’s wife. This document does not 

conform to the regulations found at 33 C.F.R. § 20.303(c) in that it was filed by a person other 

than the respondent or an authorized representative and it is not signed. This non-conforming 

viii 
ix 

document contains testimony of an unsworn person who was not designated as a witness and 

additional argument. The testimonial content has been rejected and the argument considered to 

the extent relevant to the Decision. As the document does not comport with the regulations, I will 

not rule on the proposed findings of fact and conclusions of law. However, I note that proposed 

findings 1-13 correspond to stipulations of fact already entered into the record. I also note that 

the remaining proposals are primarily in the nature of argument and would not be accepted as 

proposed findings of fact or conclusions of law in any event. I have, however, considered the 

arguments contained in this filing in preparing my decision.