UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

********************************** 

UNITED STATES OF AMERICA * 

UNITED STATES COAST GUARD * 

* Docket No. 01-0542 

* * Case No. PA01001470 

vs. * 

* 

* 

NEAL E. PARKER * 

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DECISION AND ORDER 

PETER A. FITZPATRICK 

Administrative Law Judge 

United States Coast Guard 

APPEARANCES 

FOR THE COAST GUARD 

LT Edmond G. Miner 

L T Scott A. Klinke 

United States Coast Guard 

Marine Safety Office Portland 

103 Commercial Street 

Portland, Maine 041010-4726 

FOR THE RESPONDENT 

William H. Welte, Esq. 

Welte & Welte, P .A. 

13 Wood Street 

Camden, Maine 04843-2036 
' l 

INDEX 

I. Summary of the Decision 

II. Preliminary Statement 

III. Findings ofFact 

IV. Rulings on Proposed Findings of Fact and Conclusions of Law 

V. Statutes and Regulations Involved 

VI. Opinion 

VII. Conclusion 

VIII. Order 

Appendix A - List of Witnesses and Exhibits 

Appendix B -Rulings on Proposed Facts and Conclusions of Law 

Attachment 1 - Appeals Process 

2 

Page 

3 

4 

6 

11 

11 

17 

27 

27 

30 

32 

57 
I. 

SUMMARY OF THE DECISION 

This case involves a series of charges brought against the Captain of the schooner 

WENDAMEEN resulting from a confrontation initiated by an aggressive and harassing jet ski 

operator. The incident occurred while the crew of the WENDAMEEN, anchored in Pulpit 

Harbor, Maine was about to serve dinner to the seven passengers aboard. The reckless actions of 

the jet ski operator ultimately threatened the safety of the passengers and crew and the Captain 

used an antique replica, single shot, black powder pistol to signal his distress and to cause the jet 

ski operator to desist. The principal culprit in this incident is the jet ski operator. 

With regard to the specific allegations of the complaint, the Coast Guard has failed to 

prove that Captain Parker assaulted the ski operator, Mr. Marves. Indeed, the evidence on this 

record shows that Mr. Marves may have assaulted the Captain and the others aboard the 

WENDAMEEN. Secondly, Captain Parker did not violate the Coast Guard stowage regulations 

governing black powder aboard the WEND AMEEN. Finally, the Coast Guard did prove by a 

preponderance of the evidence that Captain Parker violated other Coast Guard regulations 

requiring the Commandant's prior approval to carry black powder aboard the WEND AMEEN. 

This requirement was not widely known among the vessel owners in the schooner fleet in Maine 

or even to the Coast Guard inspectors at the time of the incident. Accordingly, the Respondent 

will be placed on probation for six months rather than have his license suspended outright. 

3 
II. 

Preliminary Statement 

On August 1 0, 2001 the Investigating Officer filed the Complaint in this case which 

contained in relevant part, the following factual allegations1

: 

FACTUAL ALLEGATIONS- Misconduct 

1. The Coast Guard alleges that on July 25, 2001 at Pulpit Harbor the 

Respondent: 

2. wrongfully committed an assault on Marvin Reyes, by firing a 

black powder pistol during confrontation with Mr. Reyes. 

FACTUAL ALLEGATIONS- Violation of Law or Regulation 

The Coast Guard alleges that on July 25, 2001 at Pulpit Harbor the Respondent: 

1. Violated Title 46 Code ofFederal Regulations 147.40 by having a quantity of 

black powder, which is defined as an explosive in accordance with 49 Code of 

Federal Regulations 173.50, aboard the sailing vessel WENDAMEEN, a 

certificated sailing vessel without the authorization required by the referenced 

regulation. 

2. Violated Title 46 Code of Federal Regulations 147.95 by not storing the black 

powder in an approved magazine in accordance with the referenced regulation. 

3. This regulation was intended to promote marine safety or protect navigable 

waters. 

The Proposed Order sought a Six Months Suspension of Respondent's Merchant 

Mariner's License No. 923467. 

The Respondent's Answer was filed on August 21, 2001 and the Jurisdictional Allegations 

were Admitted. All Factual Allegations were Denied. The Answer also asserts: 

"Respondent affinnatively alleges as a defense: All applicable COLREGS 

including but not limited to Rules 1, 2, 7, 8, 33, 36, and 37. Doctrines of waiver 

1 The Jurisdictional allegations were as follows: 

The Coast Guard alleges that: 

1. Respondent's address is as follows: 548 Old County Road, Rocldand, ME 04841, telephone (207) 594-

1751. 

2. Respondent holds the following Coast Guard-issued credential(s): License Number 923467 

3. Respondent acted under the authority of that license on July 25,2001, by serving as Master aboard the 

vessel, WENDAMEEN O.N. D210173, as required by law or regulation. 

4 
and deniminus. Self defense. Non applicability of sections cited. Respondent 

reserves the right to amend to add additional affirmative defenses." 

The case was assigned to this Judge on August 17, 2001 and was set for hearing at 

Portland, ME on November 7, 2001. (See Order dated August 28, 2001). 

Witness and Exhibit Lists were timely served by both sides and the hearing commenced 

as scheduled. The Respondent and his counsel and the Investigating Officers were present. The 

Coast Guard's case in chief consisted of 9 witnesses and 20 exhibits. The Respondent testified 

and sponsored 12 witnesses and 20 exhibits. A list of all witnesses and exhibits is set out on 

Appendix A. 

At the conclusion of the two-day hearing, I took the case under advisement. Post hearing 

pleadings were scheduled upon receipt of the transcripts. The Coast Guard filed Proposed 

Findings of Fact and Conclusions of Law on January 9, 2002.2 The Respondent's counsel filed 

Proposed Findings of Fact and a Post Trial Brief on January 10, 2002. The Investigating Officer 

submitted the Coast Guard's response (Response to Respondent's Proposed Findings of Fact and 

Conclusions of Law) on January 25, 2002. Respondent's counsel filed his response entitled 

Respondent Neal Parker's Rebuttal on January 25, 2002. A correction to that pleading entitled 

Respondent's Correction to Rebuttal Submission was filed five days later on January 30, 2002. 

In addition to those pleadings, the Respondent filed a Motion for Admission of Written 

Statements to the Record on February 4, 2002. That motion attached the two statements sought 

to be admitted. The first contains the signed statement of Mrs. Elizabeth C. Minot dated January 

2, 2001. The second is a signed statement of Adam Campbell dated January 18, 2002. Neither 

individual appeared at the hearing. The Coast Guard filed a Response to Respondent's Late 

2 An Errata to that pleading was filed the following day on January 10, 2002. 

5 
Submission of Witness Statements and objected to the admission of the statements into the 

record. 

These statements will not be admitted on the record and will not be considered in the 

determination of this case. Neither witness appeared at the hearing and the late submission of 

statements will not be allowed. Otherwise, the Investigating Officer is entitled to the opportunity 

to cross examine and the record would have to be reopened and further hearing set. No reasons 

have been advanced by the Respondent for such reopening and why these potential witnesses 

could not have testified at the original hearing. Accordingly, these statements will be marked for 

identification as Respondent Exhibits V (Minot) and W (Campbell) but NOT ADMITTED. 

III. 

FINDINGS OF FACT 

1. Captain Neal Evan Parker is the holder of Coast Guard License Number 923467, which 

authorizes him to serve as Master of steam, motor or auxiliary sail vessels of not more 

than 100 gross tons upon near coastal waters. (Tr. val. 1: 4). 

2. Captain Parker has held a Coast Guard License for approximately 25 years and has no 

record of previous violations of Coast Guard laws and regulations. He also has a good 

reputation in the Maine maritime community. (Tr. val. 1: 138; Tr. val. 2: 92). 

3. On July 25, 2001, Captain Parker was serving as Master aboard the schooner 

WENDAMEEN, when a jet skier by the name of Ryan Marves began performing high 

speed, unsafe, and harassing maneuvers around the schooner and failed to heed to the 

Captain's signals to slow down. As a result and in order to prevent an impending 

collision, the Captain fired an antique black powder pistol into the air while Mr. Marves 

was approximately 20 feet away from the schooner. (Entire Transcript). 

6 
4. The WENDAMEEN is a small passenger vessel, which is licensed to carry 14 passengers 

within a three-mile radius from shore. (Tr. val. 2: 1 04; Exhibit U). 

5. The vessel is a 67-foot long, 56-ton wooden schooner that was built in 1912 and bears 

official numberD210173. (Tr. val. 2: 103-105, 117; Exhibit J1-7 and M). 

6. On July 25, 2001, Mr. Marves was the owner and operator of a 770 horsepower 

unregistered red jet ski known as the "Tiger Shark 770." (Tr. val. 2: 27; Exhibits A and 

B). 

7. At all relevant times on July 25, 2001, the weather was calm with a southwest wind of 12 

knots and visibilityof3 to 5 miles. (Tr. val. 2: 142; Exhibit K). 

8. On the evening of July 25,2001, the WENDAMEEN was carrying seven passengers who 

were sitting on the aft top deck awaiting dinner while moored in Pulpit Harbor, Maine. 

(Tr. val.1: 147; Tr. val. 2: 48, 87, 106, 108-110, 142; Exhibit K). 

9. The WENDAMEEN's aft top deck sits approximately three feet above the water. (Tr. 

val. 2: 117; ExhibitJ1-7). 

MISCONDUCT --ASSAULT 

10. Sometime between 5:00 and 6:00p.m., while the WENDAMEEN was moored at Pulpit 

Harbor with the passengers and five crew members aboard, Mr. Marves operated his jet 

ski in close proximity to the schooner. (Tr. val. 1: 148-149, 165; val. 2: 37, 48-49, 88, 

90, 93,106,111-115, 160;ExhibitK). 

11. There was only approximately a 15 to 20 feet space between the WENDAMEEN and Mr. 

Marves' jet ski. (Tr. val. 2: 112-113). 

7 
12. Mr. Marves was so close to the WENDAMEEN that he almost sprayed the passengers 

with water, as he performed various maneuvers on his jet ski. (Tr. val. 1: 164-165; Tr. 

val. 2: 112-115). 

13. Previously, Captain Parker noticed Mr. Marves doing so called "donuts" and other 

maneuvers dangerously close to children swimming in the harbor on July 25, 2001. (Tr. 

val. 2: 111-112). 

14. Mr. Marves circled the WENDAMEEN, performed "donuts," "wheelies" and other 

maneuvers on his jet ski, which was operated at speeds of approximately 30 knots. (Tr. 

val. 1:148-149, 165; Tr. val.2: 37, 48-49, 88, 90, 93, 111-115). 

15. Captain Parker motioned for Mr. Marves to slow down by using a universally recognized 

hand signal. (Tr. val.1: 152, 165; Tr. val. 2:37, 114). 

16. Although Mr. Marves saw Captain Parker's hand signal, he continued to circle the 

WEND AMEEN and began shouting profanities at Captain Parker. (Tr. val. 1: 152; Tr. 

val. 2: 38). 

17. Mr. Marves then left Pulpit Harbor; only to return shortly thereafter. (Tr. val. 2: 3 7, 114-

115). 

18. Mr. Marves approached the WEND AMEEN head on at a speed of approximately 20 

miles per hour and when the two vessels were about to collide, he made a sharp tum and, 

thus, avoided a collision. (Tr. val. 1: 148-149, 152-153,· Tr. val. 2: 117). 

19. Captain Parker and his passengers felt threatened by Mr. Marves' actions and believed 

that harm was imminent. (Tr. val. 1:152-153,167-169, 172; Tr. val. 2:38-39,49, 91). 

20. Captain Parker instructed deckhand Daniel Parker to get the single shot antique black 

powder pistol, which Captain Parker previously purchased and which was an antique 

8 
replicaofapistolmadeinthe 1920s-1930s. (Tr. val. 2:37, 120-121;/0Exhibit 11A 

and B). 

21. While Mr. Marves was approximately 20 feet from the WENDAMEEN, Captain Parker 

fired a shot to signal to Mr. Marves to slow down. (Tr. va/.1: 149, 166; Tr. val. 2: 116, 

117; Exhibit G). 

22. Captain Parker never aimed the pistol at Mr. Marves. (Tr. val. 1: 149, 166; Tr. val. 2: 

38, 45, 49, 116, 120; Exhibit G). 

23. When Captain Parker discharged the pistol into the air, Mr. Marves desisted and then 

Captain Parker contacted the Coast Guard at approximately 6:15 p.m. to report the 

incident. (Tr. val. 1: 57-60, 76; Tr. val. 2:159). 

24. Because of the noise from his jet ski, Mr. Marves never heard Captain Parker fire the 

antique black powder pistol. (Tr. val. 1: 54). 

25. Mr. Marves only noticed that Captain Parker was holding an object, which he believed 

was a flare gun. It was not until one week before the November 7, 2001 hearing in this 

case, that Mr. Marves became aware that Captain Parker had fired a pistol on July 25, 

2001. (Tr. val. 1: 48, 49, 68). 

26. Mr. Marves' testimony that he saw three puffs of smoke is not credible. Captain Parker 

was incapable of firing 3 shots in quick succession with the single shot antique black 

powder pistol. (Tr. val. 1: 22; Tr. val. 2: 42, 123). 

27. After Captain Parker fired the pistol, Mr. Marves turned, stopped his jet ski and 

positioned himself ten feet from the WENDAMEEN's stern and made verbal threats of 

bodily hann to Captain Parker and his passengers. (Tr. val. 2: 90, 132). 

9 
28. Mr. Marves' jet ski is gasoline powered and posed a significant risk of explosion if it had 

collided with the WENDAMEEN. Thus, a jet ski can be used as a dangerous weapon. 

(Tr. val.1: 131; ExhibitS). 

SELF-DEFENSE 

29. Captain Parker used a reasonable amount of force to cause Mr. Marves to desist from 

maneuvering his jet ski in an unsafe manner when the Captain fired the antique black 

powder pistol. (Tr. val. 1: 57-60). 

NAVIGATION RULES DEFENSE 

30. Mr. Marves' close maneuvers put the anchored and sail powered WENDAMEEN in 

distress. (Tr. val.1: 148-149, 152-153; Tr. val. 2: 112-114). 

31. Captain Parker used the antique black powder pistol as a signaling device pursuant to the 

International Rules, commonly known as and hereinafter referred to as the "COLREGS." 

(Tr. val. 2: 127-128). 

32. Captain Parker used the antique black powder pistol as a means of averting immediate 

danger. (Tr. val. 1:148-149, 152-153; Tr. val.2: 117). 

VIOLATION OF LAW--STOWAGE 

33. When Captain Parker fired the antique black powder pistol, the black powder was being 

used as a warning device. (Tr. val. 2: 127-128). 

34. The black powder was stored in a watertight container aboard the WENDAMEEN in 

accordance with applicable regulations. (Exhibit E). 

VIOLATION OF LAW--MATERIALS REQUIRING COMMANDANT APPROVAL 

35. The black powder is classified as Division 1.1D explosive as defined in 49 CFR §173.2 

(a). (10 Exhibit 16). 

10 
36. Since the black powder is classified as a Division l.lD explosive, it is not subject to 

reclassification under Division 4.1. (49 C.P.R. §173.2; 10 Exhibit 16). 

37. The Commandant's approval was required for Captain Parker to carry the black powder 

aboard the WENDAMEEN. (Tr. vol. 2: 5-6, 56; 10 Exhibit 15). 

38. Captain Parker failed to obtain the Commandant's approval to carry black powder aboard 

the WENDAMEEN. (Tr. vol. 1: 242). 

39. The Coast Guard did not waive Commandant approval requirement. 3 

40. The stowage and Commandant approval requirements regarding black powder are 

important in ensuring marine safety. (Tr. vo/.2: 6-8). 

IV. 

RULINGS ON PROPOSED FINDINGS 

OF FACT AND CONCLUSIONS OF LAW 

Both sides filed pleadings setting out numerous proposed findings. Due to the number of 

rulings involved, the specific proposals and the rulings are set out in Appendix B. 

v. 

STATUTES AND REGULATIONS INVOLVED 

1. The Administrative Procedure Act is incorporated by reference in 46 U.S.C.§ 7702, which 

governs this proceeding and reads as follows: 

§ 7702. Administrative Procedure 

(a) Sections 551-559 oftitle 5 apply to each hearing under this chapter [46 U.S.C. 

§§ 7701 et. seq.] about suspending or revoking a license, certificate of registry, or 

merchant mariner's document. 

2. The general procedures governing suspension and revocation or merchant mariners' licenses 

and documents are set out in 46 U.S.C. §§ 7701-7705 and provides in pertinent part: 

3 However "[w]hether an alleged waiver is expressed or implied, it must be intentional. Mere negligence, oversight, 

or thoughtlessness does not create a waiver." 28 AM JUR 2d. Estoppel and Waiver§ 158, at 842-843 (1964). 

11 
§ 7703. Bases for suspension and revocation 

A license, certificate of registry, or merchant mariner's document issued by the 

Secretary may be suspended or revoked if the holder 

(1) when acting under the authority of that license, certificate or document 

(A) has violated or fails to comply with this subtitle [citation omitted], 

a regulation prescribed under this subtitle [citation omitted], or any other 

law or regulation intended to promote marine safety or to protect 

navigable waters; or 

(B) has committed an act of incompetence, misconduct, or 

negligence; 

46 u.s.c. §7703. 

3. The charge of Misconduct is defined at 46 C.P.R. § 5.27 as follows: 

§ 5.27 Misconduct. 

Misconduct is 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 articles and 

similar sources. It is an act, which is forbidden or a failure to do that, which is 

required. 

4. The "COLREGS" demarcation lines are discussed in 33 C.P.R. §80.105 in pertinent part, as 

follows: 

§ 80.105 Calais, ME to Cape Small, ME 

The 72 COLREGS shall apply on the harbors, bays, and inlets on the east coast from 

International Bridge at Calais, ME to the southwestern most extremity of Bald Head at 

Cape Small. 

5. The 1972 Convention on the International Regulations for Preventing Collisions at Sea 

formalized the 72 COLREGS, which became effective on July 15, 1977, and is located at 28 

U.S.C. 3549 providing in pertinent part as follows: 

RULEl 

Application 

(a) These Rules shall apply to all vessels upon the high seas and in all waters connected 

therewith navigable by seagoing vessels. 

12 
(b) Nothing in these Rules shall interfere with the operation of special rules made by an 

appropriate authority for roadsteads, harbours, rivers, lakes or inland waterways connected with 

the high seas and navigable by seagoing vessels. Such special rules shall conform as closely as 

possible to these Rules. 

(c) Nothing in these Rules shall interfere with the operation of any special rules made by the 

Government of any State with respect to additional station or signal lights or whistle signals for 

ships of war and vessels proceeding under convoy, or with respect to additional station or signal 

lights for fishing vessels engaged in fishing as a fleet. These additional station or signal lights or 

whistle signals shall, so far as possible, be such that they cannot be mistaken for any light or 

signal authorized elsewhere under these Rules. 

RULE2 

Responsibility 

(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, 

from the consequences of any neglect to comply with these Rules or of the neglect of any 

precaution which may be required by the ordinary practice of seamen, or by the special 

circumstances of the case. 

(b) In construing and complying with these Rules due regard shall be had to all dangers 

of navigation and collision and to any special circumstances, including the limitations of the 

vessels involved, which may make a departure from these Rules necessary to avoid immediate 

danger. 

RULE7 

Risk of Collision 

(a) Every vessel shall use all available means appropriate to the prevailing circumstances 

and conditions to determine if risk of collision exists. If there is any doubt such risk shall be 

deemed to exist. 

RULES 

Action to avoid collision 

(a) Any action taken to avoid collision shall, ifthe circumstances of the case admit, be 

positive, made in ample time and with due regard to the observance of good seamanship. 

RULE34 

Maneuvering and warning signals 

d) When vessels in sight of one another are approaching each other and from any cause 

either vessel fails to understand the intentions or actions of the other, or is in doubt whether 

sufficient action is being taken by the other to avoid collision, the vessel in doubt shall 

immediately indicate such doubt by giving at least five short and rapid blasts on the whistle. 

Such signal may be supplemented by a light signal of at least five short and rapid flashes. 

13 
RULE36 

Signals to attract attention 

If necessary to attract the attention of another vessel any vessel may make light or sound 

signals that cannot be mistaken for any signal authorized elsewhere in these Rules, or may 

direct the beam ofher searchlight in the direction of the danger, in such a way as not to 

embarrass any vessel. 

RULE37 

Distress signals 

When a vessel is in distress and requires assistance she shall use or exhibit the signals 

prescribed in Annex IV to these Regulations. 

ANNEX IV 

DISTRESS SIGNALS 

1. The following signals, used or exhibited either together or separately, indicate 

distress and need of assistance: 

(a) a gun or other explosive signal fired at intervals of about a minute; 

6. Firearm is defined in 26 U.S.C. §5845 as follows: 

§ 5845, Definitions 

For purposes of this chapter------

(a) Firearm.---The term "firearm" shall not include an antique firearm or any device 

(other than a machine gun or destructive device) which, although designed as a 

weapon, the Secretary finds by reason of the date of its manufacture, value, design, 

an other characteristics is primarily a collector's item and is not likely to be used as 

a weapon. 

7. Violation of law or regulation is defined at 46 C.F.R. § 5.33 as follows: 

§ 5.33 Violation of law or regulation. 

Where the proceeding is based exclusively on part of title 46 U.S.C. section 7703, which 

provides as a basis for suspension or revocation a violation or failure to comply with 46 

U.S.C. subtitle II, a regulation prescribed under that subtitle, or any other law or 

regulation intended to promote marine safety or protect navigable waters, the complaint 

must state the specific statute or regulation by title and section number, and the particular 

manner in which it was allegedly violated. 

14 
8. Authorization for particular materials is discussed in pertinent part in the following 

regulations of 46 C.P.R. Parts A and B: 

§ 147.1 Purpose and applicability 

(b) This part applies to all vessels listed in 46 U.S.C. 3301 as subject to inspection 

under part B ofU.S.C. Subtitle II. 

§ 14 7.3 Definitions 

As used in this part: 

Hazardous material means hazardous material as the term is defined in 49 CPR 1 71.8. 4 

Hazardous ships' stores means ships' stores that are hazardous materials. 

§ 147.40 Materials requiring Commandant (G-MSO) approval. 

(a) Commandant (G-MSO) approval is required before the following 

hazardous materials may be on board a vessel as ships' stores: 

* * * 

(2) Explosives of Divisions 1.1 or 1.2 

* * * 

(4) Forbidden materials listed in 49 C.P.R. 172.101. 

(b) Request for approval must be submitted to the Commandant (GMSO), identify the material, and explain the need for its use. 

§147.95 Explosives 

(a) Explosives-general. Except as provided for elsewhere in this subchapter, 

explosives, as defined in 49 C.P.R. 173.50, which are hazardous ship stores must 

be stowed in a magazine which is constructed and located in accordance with 49 

CPR 172.122through 176.138. 

(b) Small arms ammunition. 

(c) Ships' signals and emergency equipment. 

4 Hazardous material means a substance or material, which has been detennined by the Secrctaty of Transportation 

to be capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and 

which has been so designated. The term includes hazardous substances, hazardous wastes, marine pollutants, and 

elevated temperature materials as defined in this section, materials designated as hazardous under the provisions of 

Sect. 172.101 of this subchapter, and materials that meet the defining criteria for hazard classes and divisions in part 

173 ofthis subchapter. 49 CFR 171.8 

15 
(1) Explosive ship signals and emergency equipment, including pyrotechnic distress signals and line throwing equipment, must be stowed 

in watertight containers or wood lined magazine chests. 

(2) All pyrotechnic distress signals, rockets, and line throwing guns must be 

stowed in accordance with the requirements of 49 C.P.R. 176.140 through 

49 C.P.R. 176.146. 

9. Forbidden materials listed in 49 C.P.R. 172.101 is attached in Appendix B. 

10. Small passenger vessels are subject to inspection pursuant to 46 U.S.C. §3301(8), which 

reads as follows: 

§ 3301. Vessels subject to inspection 

(8) small passenger vessels. 

11. The definition of small passenger vessel is discussed in 46 U.S.C. §2101(35) in pertinent 

part: 

§ 2101. General definitions 

In this subtitle------

(35) "small passenger vessel" means a vessel ofless than 100 gross tons as 

measured under section 14502 of this title, or an alternate tonnage measured 

under section 14302 of this title as prescribed by the Secretary under section 

14010 of this title------

( A) carrying more than 6 passengers, including at least on passenger for 

hire; 

(B) that is chartered with the crew provided or specified by the owner or 

the owner's representative and carrying more than 6 passengers; 

12. Shippers requirements for certain materials is discussed in 49 CFR § 173.50 in pertinent part 

as follows: 

§ 173.50 Class 1 Definitions 

Explosives in Class 1 are divided into six divisions as follows: 

(1) Division 1.1 consists of explosives that have a mass explosion hazard. A mass 

explosion is one which affects almost the entire load instantaneously. 

16 
13. Classifications of a material having more than one hazard are discussed in pertinent part in 

49 C.P.R. § 173.2a as follows: 

§173.2a Classification of a material having more than one hazard. 

(c) The following materials are not subject to the provisions of paragraph (a) of 

this section because of their unique properties: 

( 1) A Class 1 (explosive) material that meets any other hazard class or 

division as defined in this part shall be assigned a division in Class 1. 

14. The applicable procedural regulations governing this matter are codified at 33 C.P.R. Part 

20. 

VI. 

OPINION 

A. General 

This matter is within the jurisdiction of the Coast Guard pursuant to 46 U.S.C. § 7703, 

which authorizes the Coast Guard to suspend or revoke a license or Merchant Mariner's 

document for Misconduct or Violation of Law or Regulation. In these proceedings, the Coast 

Guard has the burden of proving the allegations in the complaint by a preponderance of the 

evidence. 33 C.P.R. §§20.701 and 20.702; Appeal Decisions 2468 (LEWIN), 2477 

(TOMBARI). See also Dept. of Labor v. Greenwich Colleries, 512 U.S. 267 (1994); Steadman 

v. SEC, 450 U.S. 91, 100-103 (1981). This proceeding was conducted under the provisions of33 

C.P.R. Part 20 and the Administrative Procedure Act, as amended and codified in 5 U.S.C. § 551 

et seq. 

In a complaint dated August 9, 2001, the Coast Guard charged Captain Parker with 

Misconduct resulting from the alleged assault of Mr. Marves. Also, Respondent was charged 

with two counts of Violation of Law or Regulation. The first alleges that Parker violated 

stowage laws by improperly storing black powder on the WEND AMEEN. The second count 

17 
alleges that the Respondent failed to obtain the required approval from the Commandant for the 

black powder. Each of the Coast Guard's allegations will be discussed in turn. 

B. Misconduct 

(1) Assault 

Misconduct is defined as human behavior that violates a fonnal duly established 

rule. 46 C.P.R. § 5.27. It is well settled that assault is a form of misconduct. Appeal Decision 

2561 (CARTER); 2198 (HOWELL); 1218 (NOMIKOS); Ladner v. United States, 358 U.S. 169, 

177 (1958), Guarro v. United States, 237 F.2d 578, 580 (D.C. Cir. 1956). Assault is a willful 

attempt or threat to inflict injury upon the person of another, when coupled with the apparent 

ability to do so, and any intentional display of force such as would give the victim reason to fear 

or expect immediate bodily harm. !d. An assault may be committed without actually touching, 

or striking, or doing bodily harm to a person. State v. Murphy, 500 P.2d 1276, 1284 (Wash. Ct. 

App. 1972); BLACK'S LAW DICTIONARY, 114 (61

h ed. 1990); Appeal Decision 2561 (CARTER); 

2198 (HOWELL); 1218 (NOMIKOS). 

In the instant case, the Coast Guard failed to prove that Captain Parker assaulted Mr. 

Marves. The Coast Guard's assault allegation heavily rests on Mr. Marves' testimony, which is 

not credible. Moreover, Captain Parker has established that the black powder antique replica 

pistol was fired in self-defense and as a navigational signal to alert Mr. Marves of impending 

collision. 

(a) Willful Attempt or Threat 

The first element of assault is that there must be a willful attempt or threat to inflict 

bodily injury on a person. Appeal Decision 2561 (CARTER); 2198 (HOWELL); 1218 

(NOMIKOS). Mr. Marves' testimony failed to establish that Captain Parker willfully attempted 

18 
or threatened him with bodily harm. Mr. Marves testified that Captain Parker pointed and fired a 

pistol at him while standing on the top deck of the WENDAMEEN. (Tr. val. 1:22). Yet Mr. 

Marves also testified that he saw the profile of the gun, when Captain Parker discharged it. (Tr. 

val. 1:22, 68-69). Mr. Marves also testified that he saw three puffs of smoke when Captain 

Parker discharged the antique black powder pistol. (Tr. val.1 :22). However, the facts show that 

there was only one puff of smoke since the antique black powder pistol is a single shot pistol. 

(Tr. val. 2:121-123). Also, based on the configuration ofthe schooner and the fact that dinghies 

or life boats are located on either side in the middle of the top deck, it would have been virtually 

impossible for Mr. Marves to see Captain Parker admidships or aft midships from 20 feet away. 

(Tr. val. 2:120; ExhibitJ1-7). 

The evidence in this case shows that Captain Parker's intention in discharging the pistol 

was to cause Mr. Marves to desist from operating his jet ski in a threatening manner and to avoid 

an impending collision. (Tr. val. 2:114-119, 132-133). Captain Parker testified that only a 

percussion cap was in the pistol and he did not have a projectile in it, which lends further support 

to a finding that Captain Parker did not willfully attempt or threaten Mr. Marves with bodily 

harm. (Tr. val. 2:122). 

(b) Apparent Ability 

The second element of assault is that there must be an apparent ability to inflict bodily 

harm. Appeal Decision 2561 (CARTER); 2198 (HOWELL); 1218 (NOMIKOS). An objective 

standard is used in determining whether there was an apparent ability to inflict bodily harm. The 

inquiry is whether a reasonable person would think that there is an apparent ability to inflict 

harm. Bauer v. Sampson, 261 F.3d. 775 (9th Cir. 2001). The circumstances in this case fail to 

establish that the Respondent had an apparent ability to inflict injury on Mr. Marves. 

19 
Mr. Marves testified that he saw Captain Parker's pistol as an object, which he assumed 

was a flare gun. (Tr. val. 1:68). Even given that Mr. Marves thought that the antique black 

powder pistol was a flare gun, a reasonable person would see that Captain Parker could not 

readily move the sail powered and moored WENDAMEEN, while Marves' could leave the socalled "threatening" situation on his very fast jet ski. (Tr. va/.2:36, 48-49, 87, 108-110, 142; 

Exhibit D). Thus, Mr. Marves was unreasonable in detennining that Captain Parker had an 

apparent ability to harm him. 

Mr. Marves also testified that he thought Captain Parker fired a flare gun at him. 

(Tr.val.1:48-49). Given that Mr. Marves was 15-20 feet away from the sail-powered and moored 

WEND AMEEN and given that Mr. Marves was on a fast-moving jet ski, he was unreasonable in 

determining that Captain Parker had an apparent ability to harm him. (Tr. val.2:36, 48-49, 87, 

108-110, 117,142; Exhibit D). 

(c) Reasonable Expectation of Immediate Bodily Harm 

The third element of assault is there must be a reasonable expectation of immediate 

bodily harm is an element of assault. Appeal Decision 2561 (CARTER); 2198 (HOWELL); 

1218 (NOMIKOS). Here, the Coast Guard failed to establish that Mr. Marves had a reasonable 

expectation of immediate bodily hann from Captain Parker. As a matter of fact, the evidence 

shows that Mr. Marves did not fear immediate bodily harm from Captain Parker. Mr. Marves 

mistakenly believed that he was approximately 90 feet away from Captain Parker when the pistol 

was discharged. (Tr. val. 1:49-50). Mr. Marves did not even hear the pistol being discharged. 

(Tr. val. 1:54). All Mr. Marves observed was that Captain Parker was holding an object, which 

he assumed was a flare gun. (Tr. val. 1: 68). It was not until one week before the November 7, 

2001 hearing in this matter that Mr. Marves became aware that Captain Parker had discharged a 

20 
pistol. (Tr. val. 1: 48-49,68). Given the facts that Mr. Marves did not hear the pistol being 

discharged and he did not even know that Captain Parker had a pistol, Mr. Marves could not 

have reasonably feared immediate bodily harm. 

Mr. Marves' actions following the alleged assault lend further support to a finding that he 

did not possess a reasonable expectation of immediate bodily harm from Captain Parker. The 

facts show that after Captain Parker fired the pistol, Mr. Marves turned and stopped his jet ski 

and positioned himself 10 feet from the WENDAMEEN's stem and verbally threatened to inflict 

bodily harm on Captain Parker and his passengers. (Tr. val. 2:89-90, 132). These actions fail to 

show that Mr. Marves expected immediate bodily harm or even had reason to expect immediate 

bodily hann from Captain Parker. 

(2) Self-Defense 

Assuming, arguendo, that Mr. Marves was assaulted by Captain Parker, self-defense 

justifies an assault in these cases so long as it is defensive and not retaliatory. Appeal Decision 

2391 (STUMES). Self-defense is only that amount of force sufficient to cause the assailant to 

desist. !d. See also Appeal Decision 2163(WITTCH); 1803 (PABON); 1975 (GRADDICK); 

2193 (WATSON); 2290 (DUGGINS). The evidence establishes that Captain Parker acted in 

self-defense. 

In the instant case, Mr. Marves operated his gasoline powered and potentially dangerous 

jet ski at a speed of about 35 miles per hour in Pulpit Harbor. (Tr. val. 1: 148-149, 160-165; Tr. 

val. 2: 48-49, 88, 90, 93,111-115).5 Mr. Marves began doing "donuts," wheelies and other high5 Based on accident data compiled by the U.S. Coast Guard, jet skies are disproportionately involved in 30 percent 

of all boating accidents and nearly 40 percent of all boating injuries. Although 40 mph might not appear fast, at this 

speed a jet ski will travel almost 60 feet per second. According to the National Transportation Safety Board 

(NTSB), while most conventional boating deaths result from drowning. The leading cause of death in jet ski 

accidents is blunt-force trauma. The top four cause of jet ski accidents are: 

1. careless/reckless operation 

2. operator/inexperience 

21 
speedmaneuversincloseproximitytotheWENDAMEEN. (Tr. vo/.1:48-50, 148-149,160-165; 

Tr. vo/.2: 88, 90, 93, 111-115). Mr. Marves was so close to the WENDAMEEN that he almost 

sprayed the passengers with water, as he performed his jet ski maneuvers. (Tr. vol. 1: 164-165; 

Tr. vol. 2:112-115). When Captain Parker motioned for Mr. Marves to slow down, Mr. Marves 

ignored Captain Parker. (Tr. vol.l:l52, 165; Tr. vol. 2:37, 114). Instead, Mr. Marves continued 

to circle the WEND AMEEN and began shouting profanities at Captain Parker. (Tr. vol. I: 152). 

Then, Mr. Marves left Pulpit Harbor only to quickly return. (Tr. vol.2:37, 114-115). 

Upon return, Mr. Marves' maneuvers became more intimidating. Mr. Marves 

approached the WENDAMEEN head on, turning away from the WENDAMEEN just in time to 

avoid a collision. (Tr. vol.J: 148-149, 152-153,· Tr. vol. 2: l13). Thesemaneuversmade 

Captain Parker and his passengers feel threatened that harm was imminent. (Tr. vol.l: 152-

153,167-169, 172; Tr. vol. 2:38-39, 49, 90). 

In order to warn Mr. Marves of the imminent collision and to cause him to slow down, 

Captain Parker fired the antique black powder pistol that was aboard the WEND AMEEN while 

Mr. Marves was approximately 20 feet away. (Tr. vol. 1:166; Tr. vol. 2:116,117). Captain 

Parker did not aim the pistol at Mr. Marves. (Tr. vol. 2:38, 45, 49, 116, 120, 162; Exhibit G). 

When Captain Parker discharged the pistol into the air, Mr. Marves desisted and then Captain 

Parker contacted the Coast Guard at approximately 6:15p.m. to report the incident. (Tr. vol. 1: 

60, 76; Tr. vol. 2: 159). Based on the facts of this case, I find that Captain Parker used a 

sufficient amount of force to cause Mr. Marves to desist from assaulting him and the 

WENDAMEEN and thus acted in self-defense. 

3. operator inattention, and 

4. excessive speed. 

These factors cause 78 percent of all jet ski accidents. UNITED STATES COAST GUARD, UNITED STATES 

DEPARTMENT OF TRANSPORTATION, BOATING STATISTICS---- 1999. (See Respondent ExhibitS, p. I). 

22 
(3) Discharge of a Pistol as a Warning Device 

Since the events in this matter occurred in Pulpit Harbor, ME, the COLREGS apply. 33 

C.P.R.§ 80.105; 28 U.S.C. § 3459. The COLREGS apply to vessels, such as the 

WENDAMEEN, which is a small passenger vessel, and Mr. Marves' jet ski, which is personal 

watercraft vessel. 28 U.S.C. § 3459; 46 U.S.C. § 2101; 1 U.S.C. § 3; Keys Jet Ski, Inc. v. Kays, 

893 F.2d 1225 (11th Cir. 1990); Complaint ofDillahey, 733 F.Supp. 874 (D. NJ 1990); In re 

Royal Carribean Cruises, Ltd., 55 F. Supp.2d. 1367 (S.D.Fla. 1999). The applicable rules in this 

case are located in Rule 2, 7, 8, 34 and 37 ofthe COLREGS. 28 U.S.C. § 3459. 

Rule 2 of the COLREGS requires a mariner to exercise due regard with respect to all 

dangers of navigation and collision and to any special circumstances. !d. Rule 2 also requires a 

mariner to exercise precaution, which may be required by the ordinary practice of seamen, or by 

the special circumstances of the case. !d. With respect to navigation, Rule 7 requires a vessel 

operator to assume that a risk of collision exists ifthere is any doubt that collision exists and 

Rule 8 requires a vessel operator take prompt and sufficient action to avoid a collision. !d. 

In order to avoid or otherwise warn of collision, mariners may use various signals. 

Under Rule 34, a vessel master may blast its whistle or flash his light five times when he fails to 

understand the intention of another vessel. !d. In addition, Rule 36 allows a seaman to use a 

light or sound signal to attract attention. !d. A pistol is classified as a warning device under the 

Sounds and Light section of the COLREGS. !d. (Annex IV). Rule 37 specifically allows a 

vessel to use a gun or explosive, such as a pistol, to warn another vessel of the risk of collision 

when said vessel is in distress. 28 U.S.C. § 3459. 

Here, Captain Parker gave due regard to Mr. Marves' dangerous maneuvers around the 

WENDAMEEN. (Tr. vol. 2:110-117). Captain Parker observed Mr. Marves doing donuts and 

23 
other maneuvers around children swimming in the Pulpit Harbor earlier that evening. (Tr. val.2: 

111-112). Captain Parker invoked his 25 years of experience as a sea captain to determine that 

a risk of collision existed as required by Rule 7 of the COLREGS. 28 U.S.C. § 3459; (Tr. val. 

2:101, 117). By operating his jet ski at speeds between 25 to 35 miles per hour within 15 to 20 

feet of the WENDAMEEN, Mr. Marves placed the moored and sail-powered vessel in distress. 

(Tr. val. 2:112-115). Since Mr. Marves' jet ski was being operated in dangerously close 

proximity to the moored WEND AMEEN and Pulpit Harbor was crowded, Captain Parker could 

not maneuver the vessel and avoid an imminent collision. Doing so would have required Captain 

Parker to draw up the anchor to unmoor the WEND AMEEN and operate and steer the sail 

powered vessel, which would have resulted in an unreasonable delay. Thus, I find that Captain 

Parker acted prudently in using and discharging the pistol as a warning device of the risk of 

collision in accordance with Rule 37 of the COLREGS. 

C. Violation of Law 

(1) Stowage Laws 

Since the WEND AMEEN is a vessel that weighs less than 100 gross tons and carries 

more than 6 passengers and is chartered with a crew, the WENDAMEEN is a small passenger 

vessel subject to Coast Guard inspection laws and regulations. 46 U.S.C. § 2101(35); 46 U.S.C. 

§ 3301(8). Coast Guard inspection regulations require proper stowage of hazardous materials. 

46 C.F.R. § 147.95. The black powder used by Captain Parker on board the WENDAMEEN is 

classified as a Division 1.1D explosive. 46 C.F.R. § 147.3; 49 C.F.R. §§ 172.101(a) table; 

173.50. Captain Parker primarily used the black powder for his antique black powder pistol as a 

signaling device/explosive. 46 C.F.R. §147.95(c); (Tr. val.2: 127-128, 136). 

24 
Under 46 C.P.R. § 147.95(c)(l), explosive ships' signals, such as the black powder, are 

required to be stowed in a watertight container. In this case, Captain Parker properly stowed the 

black powder in a watertight container aboard the WENDAMEEN pursuant to 46 C.P.R. 

§147.95(c)(l). (Exhibit E). Accordingly, the Coast Guard failed to establish by a 

preponderance of reliable and credible evidence that Captain Parker violated Coast Guard 

stowage laws and regulations. 

(2) Commandant Approval to Store the Black Powder Aboard 

While Captain Parker properly stowed the black powder aboard the WEND AMEEN, he 

failed to secure Commandant approval prior to carrying the black powder aboard the vessel as 

required by 46 C.P.R. § 147.40. Under 46 C.P.R. § 147.40(a)(2), Commandant approval is 

required before a Division l.lD explosive can be stored aboard a vessel. The mere fact that 

Captain Parker removed the black powder from the WEND AMEEN after the Coast Guard cited 

him for carrying the black powder without Commandant approval does not absolve him from the 

violation of46 C.P.R.§ 147.40. See (Tr. vol. 1:131, 237-238; Tr. vol. 2:153-154). 

Moreover, while there are several exceptions to the Commandant approval requirement, 

none of these exceptions apply in this case. Since the black powder is a Division 1.1 explosive, 

the small quantity exception for Division 4.1 explosives is inapplicable. See 49 C.F .R. § § 

173.2a(c) and 173.4(a). Furthermore, the exception under 46 C.P.R. § 147.9 also does not apply 

because Captain Parker never submitted a written request to the Coast Guard seeking a waiver of 

the Commandant approval requirement with respect to the black powder. In fact, prior to the 

Coast Guard issuing the citation for violating 46 C.P.R. § 147.40, Captain Parker was unaware 

that he needed Commandant approval to carry the black powder aboard the WENDAMEEN. 

(Tr. vol 2: 154). Last, Captain Parker's argument that the Coast Guard waived the requirement 

25 
that a mariner obtain Commandant approval prior to carrying an explosive ships' signal, such as 

the black powder, is untenable. Captain Parker's constructive waiver argument is flawed 

because waiver requires a showing of intent. 28 Am. Jur. 2d., Estoppel and Waiver § 158, at 

842-843 (1964). While the Coast Guard may have overlooked its regulation with respect to the 

black powder, the Coast Guard never exhibited any intent to waive the black powder regulation.6 

Thus, I find that the Coast Guard did not impliedly or constructively waive the Commandant 

approval requirement as it relates to carrying black powder aboard the WEND AMEEN. 

(3) De minimis Defense 

Captain Parker's alternative defense is that the regulations requiring Commandant 

approval prior to carrying the black powder aboard a vessel are de minimis. This argument is 

rejected. The term "de minimis" also known as "de minimis non curat lex" refers to an 

unimportant or trifling matter. BLACK'S LAw DrcnoNARY, 431 (6th ed. 1990). Contrary to the 

inference derived from Captain Parker's argument, violating a hazardous material regulation by 

failing to secure Commandant approval is not an unimportant or trifling matter. The Coast 

Guard regulates the carriage of black powder for several reasons. First, black powder is 

classified as an explosive under 49 C.P.R. § 173.50(b)(l). Second, requiring prior Commandant 

approval allows the Coast Guard to ensure that mariners fully understand the dangers and risks 

involved in maintaining black powder on board a vessel. (Tr. vol. 2: 7). Third, by regulating the 

carriage of black powder on board a vessel, emergency response personnel are notified of 

hazardous materials aboard a vessel before boarding said vessel. Id. 

6 See footnote no. 2 

26 
VII. 

CONCLUSION 

The preponderance of evidence in the record does not support a finding that Captain 

Parker assaulted Mr. Marves when he fired an antique black powder pistol on July 25, 2001 in 

Pulpit Harbor, ME. The preponderance of evidence in the record also does not support a finding 

that Captain Parker improperly stowed black powder aboard the WENDAMEEN. However, the 

Coast Guard has established by a preponderance of evidence in the record that Captain Parker 

failed to obtain Commandant approval to carry black powder aboard the WEND AMEEN. Thus, 

Captain Parker is subject to an appropriate sanction. 

Given the facts and circumstances of this case, a one month suspension of Captain 

Parker's license remitted on six months probation is appropriate. Additionally, Captain Parker is 

prohibited from carrying black powder aboard the WEND AMEEN until he obtain the required 

approval of the Commandant of the Coast Guard. The maritime community where Captain 

Parker operates the WEND AMEEN and passengers of the WEND AMEEN highly regard 

Captain Parker. Moreover, he does not have a record of prior violations. He appears to be a 

responsible mariner who was not aware of the black powder regulations regarding Commandant 

approval 

WHEREFORE, 

VIII. 

ORDER 

IT IS ORDERED that the charge of Violation of Law for failure to obtain Commandant 

approval for the carriage of black powder aboard the WEND AMEEN is PROVED. 

IT IS FURTHER ORDERED that the charge of Misconduct for Assault is NOT 

PROVED and is hereby DISMISSED. 

27 
IT IS FURTHER ORDERED that the charge ofViolation of Law for improper stowage 

of black powder aboard the WEND AMEEN is NOT PROVED, and it is hereby DISMISSED. 

IT IS FURTHER ORDERED that, if the Respondent wishes to carry black powder 

aboard any vessel subject to Coast Guard inspection, he must first obtain Commandant approval. 

Should he fail to obtain Commandant approval to carry black powder or any other material 

requiring Commandant approval under Part 47 of Title 49 C.P.R., Respondent will be in direct 

violation of this Order. 

ORDERED that the service of this Decision on the Respondent's counsel will serve as 

notice to the Respondent of his right to appeal, the procedure for which is set forth in 33 C.P.R. 

20.1001-20.1003. (Attachment 1). 

Done and Dated this March 4, 2002 at 

Norfolk, VA 

PE .-

Administrative Law Judge 

United States Coast Guard 

28