IN THE MATTER OF MERCHANT MARINER'S DOCUMENT NO. Z-1238223
AND ALL OTHER SEAMAN'S DOCUMENTS
Issued to: Guy T. POUTER
DECISION OF THE COMMANDANT
UNITED STATES COAST GUARD
1857
Guy T. POUTER
This appeal has been taken in accordance with Title 46 United
States Code 239(g) and Title 46 of Federal Regulations 137.30-1.
By order dated 24 July 1969, an Examiner of the United States
Coast Guard at Cleveland, Ohio suspended Appellant's seaman
documents for two months, plus four months on twelve months'
probation
upon finding him guilty of misconduct.
The
specifications found proved allege that while serving as an
ordinary seaman on board SS WASHINGTON under authority of the
document above captioned, Appellant:
1)
from 21 April 1969 through 25 April 1969, while the
vessel was "in a foreign port" wrongfully refused to turn
to, and
2)
on 24 April 1969, at sea, wrongfully disobeyed a lawful
command of the master by refusing to go to his assigned
lifeboat station.
At the hearing, Appellant was represented by professional
counsel. Appellant entered a plea of not guilty to the charge and
each specification.
The Investigating Officer introduced in evidence voyage
records of WASHINGTON.
In defense, Appellant offered in evidence his own testimony,
a written statement of another seaman, and certain stipulations of
fact.
At the end of the hearing, the Examiner rendered an oral
decision in which he concluded that the charge and specifications
had been proved. The Examiner then served a written order on
Appellant suspending all documents issued to Appellant for a period
of two months, plus four months on twelve months' probation.
The entire decision was served on 18 August 1969. Appeal was
scrool down a lot-
also i will attempt to add the info that explains-
parts of a email that was sent- some info was taken out
to protect the enity that it was emailed-
its funny looking back - here i'm am voluntering for covert secret duty (they seem to get the disfunctional inner city youth adults that are seeking love and attention and turn us into killers)
during the vietnam so called war and i can't tell the ship mates that are attacking
my character etc., that i'm a hero or potential hero if i live or a dead hero because of my secret assignment as a civilian - merchant marine is under the treasury dept., u.s. states coast guard - and i have long hair and a beard and they are calling me a hippie anti-war commy amongs other words and that i should cut my hair or they will throw me over the side into the sea -
so i had to survive and protect my self for my country to serve and protect and i refused to turn too in other words i refused to report for duty on the high seas which is desertion etc., - so i was able to make it to inchun, korea, which is the 38 demilitized zone between north and south korea, and over the large hill semi-moutain is north korea and me and the army personnal probably cia etc., was guided through the mine fields to north korea and we planted electronic devices to the under ground communication cables to listen - wire taps -
illegal stuff -
another funny thing one time i was in the toilet taking a leak and this army uniformed person asked me if i wanted to buy some drugs and get high - weather some enity was testing me or not i will never know - i said fuck off soldier - did i state that theres a military base there -
i changed my name to my real dads name legal name change probate court in 1974 - i had my brothers dads name -
unless i get my secret records from the military which i have applied two years ago - i could only prove that i have a pass port with me in army uniform and some other documents that i went to korea -
the one fellow seaman that testified for me was a young college grad and he was my room mate - it turned out that he was a u.s. secret service agent-
years ago it was called mutiny and they could hang you -
i guess thats why i'm so pro-active with anti-crime -
i have faced death a few times and lived -
i googled my guy templeton black and guy templeton pouter and thats how i found this case and many more stuff with g t b and quest ministies -
when i refused to do any more covert stuff over seas - i was told that if i ever
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INDEX
Appeals
Assignment of errors too broad
Examiner's order against weight of evidence, no grounds for
Charges and Specifications
Identification of vessel as place proper for continuing
offense
Sufficient if couched in terms of statute
"wrongfully" not necessary to valid specification of
misconduct
Defenses
Fear for personnel safety as, rejection of
Evidence
Weight assigned by examiner
Findings of fact
Affirmed if supported by substantial evidence
Failure to conform to evidence
Misconduct
Fear for safety not a defense to charge of
Unnecessary to either allege or prove wrongfulness
Offenses
Elements of, not including wrongfulness
Notice
Pleadings provided adequate notice
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1969, is AFFIRMED.
C. R. BENDER
Admiral, U. S. Coast Guard
Commandant
Signed at Washington, D. C., this 22nd day of September 1971.
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"at sea" or in a certain port when the offense, as here, is
continuing, is a shipboard offense, and would be an offense
wherever the vessel was. It is enough, in such cases, merely to
allege that the person for a period of five days refused to perform
his duties aboard the vessel.
With the dates sufficiently
identified, it would not matter that the vessel had been in four
different ports and had made three transits during the period.
In the instant case the Examiner was correct in seeing that
the dates covering the sea periods were included within the dates
covered by the "in port" allegations. The Examiner need not have
considered the "at sea" allegations as "waived" but he could have
accomplished by proper findings what the Investigating Officer
should have accomplished by a properly worded notice.
All that was initially required was that Appellant be placed
on notice that his refusal to perform duties on the vessel from 21
through 25 April 1969 was in question. For this continuing offense
allegation of location of the vessel was unnecessary.
In view of the Investigating Officer's statement that the
distinction between the two specifications was intended only to
distinguish between the place of offenses, i.e. at sea or "in a
foreign port", it is difficult to see why different language was
used in framing the specifications. The "in port" specification
used the language of failure to "turn to" while the "at sea"
specification used the language of "refusal to perform the duties
of ordinary seaman". The language used should have been the same
in both cases, if it were correct in the first place to sever the
specifications only on the basis of location of the ship. The
distinction forced by the change of language required the
additional step in the OPINION, Section III, to show that a refusal
to "turn to" is a refusal to perform "duties".
The identification of place of an offense is adequately made,
if the offense is one identifiable with shipboard activity, by an
assertion that the offense occurred aboard the vessel.
A
specification covering thirty days of refusal to perform duties
need not link the refusal to a multitude of ports or a multitude of
periods at sea.
In the instant case it would have been enough if the original
specification covering 21 through 25 April 1969 had alleged that
Appellant had refused to perform duties aboard the vessel which was
"variously at sea or in port" during the period of time involved.
ORDER
Order of the Examiner dated at Cleveland, Ohio on 24 July
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to turn to; and
2)
did "on or about 22 April 1969, 24 April 1969, and 25
April 1969, while said vessel was at sea, wrongfully
refuse to perform your duties as Ordinary Seaman".
The Examiner noted that all dates in the specification
covering matters "at sea" were embraced by the dates of the
specification which alleged offenses "import". The log entries
mentioned above show that on some occasions the vessel was at sea
and that it was in at least two foreign ports. The Investigating
Officer explained that the specifications were separated because at
times during the period involved the vessel was at sea while at
other times the vessel was in different foreign ports.
The Examiner attempted to cope with the problem presented by
declaring that the specification which covered dates already
included within the 21-25 April 1969 period would be considered as
waived. He made no finding that the specification was proved or
not proved. In considering that specification "waived", the
Examiner found, ultimately, that Appellant refused to turn to at "a
foreign port.
Technically, Appellant was not found to have
committed misconduct (except for the lifeboat drill offense) "at
sea". Thus, the solution sought by the Examiner to the difficulty
posed to him by the two specifications was not correct because it
narrowed his ultimate findings on evidence that a continuing
offense had taken place at sea and in two foreign ports to a
finding that the continuing offense had occurred in one single
foreign port. Since there was adequate evidence introduced, and
litigation was involved, the Examiner could have correctly disposed
of the problem by making his findings conform to the evidence
rather than trying them in a strait-jacket of the pleadings. Kuhn
v. C.A.B., CA D.C., (1950) F. 2nd. 839. The Examiner could have
deleted the words "in a foreign port" in making his findings.
The problem need not have been posed to the Examiner in the
first place if the specifications had been properly drawn. It has
been a common practice to allege that a certain act of misconduct
occurred "at sea" or "in a foreign port". Since national security
is not involved, there is no longer a reason not to identify the
foreign port is identifiable; but the drafter of the specifications
was faced here with the fact that the continuing offense occurred
in more than one port and at sea as well.
It is repeated that the purpose of the written allegations is
notice. For many acts of misconduct cognizable under R.S. 4450 it
is immaterial whether the acts were committed at sea or in this or
that port. While time and place are elements in the notice of the
misconduct to be inquired into, the place need not be identified as
-7-
I agree with one contention in Appellant's argument: The
Examiner's suggestion that Appellant could have removed his danger
by getting a haircut is irrelevant. If there was a real danger
there was no obligation on Appellant to do or cease to do anything
which he had a right not to do or to do so as to protect himself.
If a reasonable merchant seaman could believe that he would be
thrown overboard if he did not cut his hair at the behest of his
fellow seamen, it is no solution to say that he could avert the
danger by cutting his hair, which, under law, the custom of the
sea, and his shipping agreement, he had the right to wear to any
length he wished so long as it did not interfere with the
performance of his duties.
The comment of the Examiner and the issue urged by Appellant
are not important in this case.
IX
The important thing here is whether the defense offered by
Appellant in this case was so overwhelming as to have required the
Examiner to reject the voyage records as not constituting
substantial evidence. I have analyzed Appellant's evidence only to
show that if this were an initial decision in the case his defense
should be rejected. The Examiner has already rejected it.
I find that as a matter of law Appellant's defense offered at
hearing would not authorize a finding that he was justified in
refusal to work. I find further that the Examiner's findings are
based on substantial evidence, the voyage records of WASHINGTON
which show the Appellant refused to perform his duties.
X
There is one question not specifically raised by Appellant
which intrudes itself as I look at the record of this case. The
evidence contains a log entry dated 21 April 1969 which shows that
Appellant refused to turn to at Tobata, Japan, at 1310 that date.
Another entry dated 24 April 1969, made at sea, shows that
Appellant failed to perform duties on 22 and 23 April 1969. A
third entry, dated 24 April 1969, records the failure of Appellant
to participate in the fire and lifeboat drill. The fourth relevant
entry, of 26 April 1969, made in Yokohama, Japan deals with refusal
to turn to and perform duties on 24 and 25 April 1969.
The original specifications on which this case went to hearing
contained these:
1)
did "on or about 21 April 1969 through 25 April 1969
while said vessel was in a foreign port, wrongfully fail
-6-
It might be argued, however, that if conditions would change
an apparent desertion into a justifiable departure (noting that
desertions usually occur in port), the same conditions would
justify a failure to work while the vessel was at sea until the
vessel reached a place at which the aggrieved seaman could depart
the vessel. I am not prepared to accept this argument as a general
proposition.
It is not as though Appellant could have retired to a
hermetically sealed compartment, sound-proof, so that he could hear
no derogatory remarks or threats, until such time as he could
exercise his right to leave the ship. During the four days he
refused to work he was not exposed to any real danger that would
have justified leaving the ship in port.
VII
Ultimately, the appeal here fails, as the defense failed
before the Examiner, because what had happened to Appellant did not
come within those conditions which cause such fear as to justify a
seaman in leaving his ship. In Appellant's own words, the episode
occurred thus: "I got up to leave and he grabbed me, half hit me
and pushed me against a table. I fell down, received bruises, torn
shirt, no permanent damage that I know of. Of course, I got up and
left at that point without anything further being said. I made a
statement, if we were aboard land you couldn't get away with this."
R-14.
Even in Appellant's own description there is nothing to
justify a reasonable fear of such harm as would authorize him to
leave the ship, much less to refuse to work.
He says only that he was "half-hit". He says that he fell
down. He does not say that his assailant tore his shirt. Although
he says that nothing further was said, he did have the last work,
and he left the scene without further harm or threat of harm. If
Appellant would have had the Examiner believe that the conditional
threat of his going overboard if he did not get a haircut justified
his leaving the vessel, he would have to persuade the Examiner that
this cutting must be done "right now" or he would have been thrown
overboard.
This was obviously not the case. Assuming that the
threat was real it obviously, from the fact that Appellant was not
disturbed again, meant that it would not be enforced until the
vessel had reached a port. Appellant was under no threat until a
port was reached, even on the most favorable interpretation of his
testimony possible, and therefore should have worked until then.
VIII
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without merit. What his argument ultimately resolves itself to is
that his failure to work and his failure to obey the order to
participate in the boat drill were so convincingly explained by him
that as a matter of law they cannot be found to be failures to
"turn to" or to "obey a lawful order".
IV
The only thing to be considered on this appeal is whether
Appellant's evidence should necessarily have convinced the Examiner
that he had the right not to work and the right not to attend the
boat drill. The work "necessarily" is used here advisedly. The
evidence did not convince the Examiner or the case would not be
here in the first place.
On the other hand, if there is
substantial evidence to support the findings they will be upheld.
Only if there is no substantial evidence to support the findings
should I disturb the Examiner's findings. The official log entries
are substantial evidence upon which to predicate the Examiner's
findings and, on review, I need go no further, but to clarify some
points the affirmative defense will be considered.
V
Appellant's claim is that he was so fearful for his safety
that he was justified in not working. This claim must be summarily
rejected as to his failure to participate in a boat drill.
Even if one accepted that a reasonable fear for personal
safety existed by reason of the antagonism of fellow seamen, this
would not excuse deliberate absence from an emergency drill. There
is no need to go into details of drills, e.g., how they are
supervised by officers, such as to remove the possibilities that
Appellant says he feared.
Appellant's failure to attend the drill is as bad as a failure
to perform assignments in an actual emergency. Drills are held to
train for and provide for emergencies. As it appears now only
physical disability could discharge one from a duty during actual
emergencies or drills.
VI
There remains then, on the merits of this appeal, only the
consideration of whether the fear of bodily harm was such as to
discharge Appellant's refusal to perform work. There are court
decisions in which a seaman's leaving his vessel were held not to
be desertion because of conditions on the vessel. I am aware of no
case in which conditions aboard a vessel justified a seaman in
refusing to perform a day's work.
-4-
statutes, to customs of the sea, and to the everyday meaning of
certain words.
46 U.S.C. 701, for example, spells out certain offenses for
which a seaman may be penalized, confined aboard ship, or subjected
to fine or imprisonment.
Any such offense is obviously
"misconduct" under R.S. 4450. If the statement of the allegation
in the specification is couched in the language of the statute it
is clearly sufficient in the administrative proceeding where the
purpose of the pleading is notice, not niceties of common law
distinctions or of criminal indictments.
Thus, the first offense enumerated in 46 U.S.C. 701 is
"desertion". The statute does not speak of "wrongful desertion".
It is enough to allege that a seaman deserted. While the elements
of desertion must be proved, it need not be alleged that a
desertion was wrongful.
When substantial evidence has been
introduced to establish the elements, it is for the respondent to
persuade that an element is actually missing and that he did not in
fact "desert".
To look at a specification in the instant case, it is seen
that Appellant was declared to have disobeyed a lawful order.
Disobedience to a lawful order is an offense in any kind of
jurisprudence. If there is an order, and if there is disobedience,
the only defense can be that the order was not lawful. The
unlawfulness may be established by evidence that the person who
gave the order had no authority to give it or that the
circumstances of the person who was given the order were such as to
make performance impossible. These defense show the unlawfulness
of the order. There need be no allegation that the disobedience of
the order was wrongful for if the order was lawful its disobedience
was wrongful.
Similarly an allegation that one failed to perform a duty need
not be alleged as wrongful. A duty, once it exists, must be
performed.
A valid defense which would justify or explain
non-performance would not prove that a failure to perform a duty
was not wrongful but circumstances have rendered the "duty" no
longer a duty. Looking to the specification which covered the
dates 21-25 April 1969, one sees that it alleges a "failure to turn
to". In the parlance of the sea "turn to" does not mean merely "to
work" but it does mean to perform a duty or to perform required
work. In these proceedings it is enough to allege that a person
failed to "turn to". It is not necessary that the failure be
alleged as wrongful. The burden is upon the person charged to show
that his failure to work was not a "failure to turn to".
Appellant's semantic argument, then, must be rejected as
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More detailed attacks mounted on the Examiner's action will be
discussed in the OPINION below.
APPEARANCE:
Harvey L. Luchans, Esq., Legal Aid Society,
Cleveland, Ohio.
OPINION
I
Appellant's assignments of error are so broadly stated as not
to be truly assignments of error. No specific unreasonability is
asserted, and no law is asserted to have been violated. To say
that an Examiner's decision is against the weight of the evidence
can mean, in administrative law, if there is to be found meaning,
only that there is no substantial evidence to support the findings.
An Examiner's Order, by itself cannot be against the weight of the
evidence in any case.
To ascertain Appellant's real grounds for appeal his
"Argument" must be analyzed.
II
One argument given is that the Examiner misconstrued the law
in thinking that if the operative facts of the specifications were
proved
the wrongfulness of those acts was automatically
established. Appellant argues:
(1) That the wrongfulness of the acts must be affirmatively
proved, and
2)
His defense proves that the acts were not wrongful.
There is an implicit inconsistency here, for if it was only
the defense that proved the acts not to be wrongful there was
already an apparent wrongfulness to be rebutted. There is also a
fundamental misconception here.
III
While the word "wrongfully" is often almost mechanically
inserted into specifications in these proceedings it is not always
a necessary term for a valid allegation of misconduct. We are not
concerned here with whether a naked allegation of "homicide" is
enough to support an action under R.S. 4450 to suspend or revoke a
seaman's document. We may look here to the language of certain
timely filed on 20 August 1969, and perfected on 5 November 1969.
FINDINGS OF FACT
On all dates in question, Appellant was serving as an ordinary
seaman on board SS WASHINGTON and acting under authority of his
document.
On 24 March 1969, Appellant signed aboard WASHINGTON for his
first voyage as a merchant seaman. Appellant was then 27 years
old, and wore his hair extremely long, with a long full beard and
mustache. He became the target of abuse by his fellow sailors who
impugned his character, integrity, and manhood.
Appellant
complained to the second mate about this treatment. On 17 April
1969 Appellant complained to the master who took no action. When
the vessel arrived at Seoul, R.O.K., Appellant registered a
complaint with State Department officials who said that they would
refer the matter to the U. S. Coast Guard office at Yokohama,
Japan.
On the morning of 21 April 1969, a seaman accosted Appellant
in the messroom, complained of his inefficient work, used vulgar
and abusive language, and stated that if Appellant did not get a
haircut he might end up over the side. The other seaman then
pushed Appellant down. Appellant's shirt was torn and he suffered
some non-disabling bruises. Appellant then picked himself up and
walked out with no further violence offered.
Appellant took to his fo'c'sle and did not work again until
the vessel arrived at Yokohama on 25 april 1969. During this
period Appellant disobeyed an order to appear at a lifeboat drill.
At Yokohama, a Coast Guard officer interrogated members of the
crew. Appellant went back to work and had no further difficulties
to the end of the voyage at Seattle, Washington.
BASES OF APPEAL
This appeal has been taken from the order imposed by the
Examiner.
It is contended that as to each conclusion of the
Examiner and as to the order the Examiner's action is
1)
unreasonable,
2)
contrary to law, and
3)
against the weight of the evidence.