U N I T E D S T A T E S O F A M E R I C A 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

____________________________________ 

UNITED STATES OF AMERICA : 

UNITED STATES COAST GUARD : 

 : DECISION OF THE 

 : 

 vs. : VICE COMMANDANT 

 : 

 : ON APPEAL 

MERCHANT MARINER’S : 

LICENSE NO. 811332 : NO. 2639

 : 

 : 

Issued to William C. Hauck : 

This appeal is taken in accordance with 46 U.S.C. § 7702, 46 C.F.R. § 5.701, and 

33 C.F.R. Part 20. 

By a Decision and Order (D&O) dated October 2, 2001, an Administrative Law 

Judge (ALJ) of the United States Coast Guard suspended Respondent, William C. 

Hauck’s, above-captioned license outright for a period of twelve (12) months based upon 

finding proved one charge of negligence and three charges of violation of law or 

regulation. At the time of the hearing, there was one specification under the charge of 

negligence and one specification under each of three charges of violation of law or 

regulation. Under the charge of negligence, the specification alleged that the 

Respondent, while serving as master of the M/V ST. LUCIE on July 29, 2000, 

negligently operated the M/V ST. LUCIE by failing to navigate the vessel with due 

caution, contributing to an allision with Bethel Bank Daymarker Number 19 (LLNR 

12497), causing substantial damage. Under the first charge of violation of law or 

regulation, the specification alleged that on July 29, 2000, while serving as Master of the 

M/V ST. LUCIE, the Respondent failed to maintain a proper look-out for the prevailing 

circumstances and conditions, by failing to comply with 33 U.S.C. § 2005, Inland 
HAUCK No. 2639 

2

Navigation Rules, Rule 5 – Look-out, resulting in the allision of the M/V ST. LUCIE 

with the charted aid to navigation, causing substantial damage. Under the second charge 

of violation of law or regulation, the specification alleged that on July 29, 2000, while 

serving as Master of the 

M/V ST. LUCIE, the Respondent allided with Bethel Bank Daymarker Number 19 

(LLNR 12497), in Marathon, Florida, in violation of 33 C.F.R. Part 70, Interference with 

or Damage to Aids to Navigation, causing substantial damage to the Daymarker. Under 

the third charge of violation of law or regulation, the specification alleged that on July 

29, 2000, Respondent, as the Marine Employer and owner of Key West Steamboat 

Company, Inc., failed to ensure compliance with 46 C.F.R. Part 16 by failing to enroll 

one of his crew members, Ms. Chatlada Ketkaew, in a chemical testing program. These 

charges were brought on March 20, 2001. 

The hearing was held in Key West, Florida, on June 21, 2001. The Respondent 

appeared without counsel and entered a response denying all the charges and 

specifications. The Coast Guard Investigating Officer introduced into evidence the 

testimony of eight witnesses, including the Respondent, and 13 exhibits. The 

Respondent introduced into evidence his own testimony, one additional witness and three 

exhibits. 

During the hearing, an issue arose as to the exact location of the replaced Bethel 

Bank Daymarker No. 19. In order to settle the controversy, the ALJ ordered the 

Investigating Officer to have the Coast Guard pinpoint the coordinates of the marker and 

submit the results in evidence. On June 29, 2001, a 10-page document was submitted 

and served on Respondent. No objection to that document was received. Accordingly, it 

was marked as Exhibit IO-14 and admitted. 
HAUCK No. 2639 

3

 The ALJ issued his D&O on October 2, 2001. The Respondent filed a Notice of 

Appeal on October 31, 2001. On November 26, 2001, the Respondent sought and was 

granted an extension of time to file his Appellate Brief. The Respondent perfected his 

appeal on January 3, 2002. The Coast Guard submitted a reply brief on February 13, 

2002. This appeal is properly before me. 

Appearance: Respondent, William C. Hauck, pro se. LT Steven R. Keel, LT 

Mark Hammond and Chief Warrant Officer W. L. Wiggins for the Coast Guard. 

 FACTS

Respondent served under the authority of his Coast Guard license aboard the M/V 

ST. LUCIE at all relevant times. All of the events relative to the casualty occurred in the 

vicinity of Bethel Bank and the waters north of the city of Marathon, Florida. William C. 

Hauck is the holder of Merchant Mariner’s License Number 811332 issued by the United 

States Coast Guard on April 23, 1997. It authorizes Mr. Hauck to serve as “MASTER 

NEAR COASTAL STEAM OR MOTOR VESSELS OF NOT MORE THAN-100-

GROSS TONS.” 

The M/V ST. LUCIE (D1036416) is 64.5 feet in length and displaces 51 gross 

tons. Exhibit IO-11.1

 The vessel is owned and operated by Key West Steamboat Co. 

Inc., Marathon, Florida. A Certificate of Inspection was issued to the vessel on 

November 9, 1999. The manning requirements set out thereon include a Coast Guard 

licensed Master and two authorized deckhands. The vessel is configured as a paddle 

wheel steamboat and is restricted to operation in the “. . . Atlantic Ocean and Gulf of 

Mexico between Melbourne, Key West and Cape Romano Florida, not more than three 

(3) miles from shore.” Id.

 

1

 All citations to the transcript of the hearing will be reflected at “Tr.” followed by the page number of the 

transcript. Coast Guard exhibits are marked “IO” for Investigating Officer. 
HAUCK No. 2639 

4

 

Mr. Hauck is the owner of Key West Steamboat Co., Inc. and the M/V ST. 

LUCIE. Exhibit IO-13 and Tr. at 176-77, 213.

 On July 29, 2000, at approximately 1905, the M/V ST. LUCIE departed the 

Buccaneer Resort in Marathon, Florida for a two-hour sunset cruise to Moser Channel. 

Tr. at 150 and Exhibit IO-12. The Master of the M/V ST. LUCIE during the excursion 

was the Respondent, William C. Hauck. Tr. at 150. The other members of the crew were 

deckhands Bruce A. Lord and Chatlada Ketkaew. Tr. at 104, 114 and Exhibit IO-1. 

There were six other persons aboard the vessel, including four “paying” passengers and 

two “free” riders. Tr. at 175. 

Captain Hauck was in the wheelhouse and in command of the vessel as it 

proceeded three to four miles toward Moser Channel where the passengers watched the 

sunset. The vessel then turned around and came back. Tr. at 62, 106. During the 

excursion, a squall was encountered and the crew took shelter behind the wheelhouse. Tr. 

105-106. Neither of the two deckhands were called to assist the Respondent in the 

wheelhouse or ordered to act as a lookout prior to the allision. Tr. at 106, 115. 

The weather became windy and rainy and the Respondent closed the pilothouse 

windows on the port side. Tr. at 151. Respondent steered the vessel with his head out 

the starboard window because there were no windshield wipers on the vessel. Tr. at 

152.2

 At that point, the vessel was proceeding at approximately six knots and it hit 

Bethel Bank Daymarker No. 19 on the port bow, causing the vessel to list. Tr. at 73 and 

Exhibit IO-1. The Daymarker was bent over and impaled into the vessel’s hull at a 30 to 

40 degree angle. Tr. at 32-33. 

2

 The Coast Guard regulations do not require windshield wipers on small passenger vessels. 
HAUCK No. 2639 

5

 

The Bethel Bank Daymarker is marked on NOAA Chart 11452, Florida Keys 

Alligator Reef to Sombrero Key, 19th Edition, November 22, 1997. Exhibit IO-2. The 

Daymarker had been on station since at least October 20, 1997, when Officer Stephen 

Golden, Florida Fish and Wildlife Conservation Commission, entered its coordinates into 

his GPS receiver. Tr. at 62. 

Immediately after the allision, the Respondent notified the Coast Guard Station at 

Marathon, Florida. BM2 Bryan McCloskey received the call at approximately 2100. 

Five minutes later, two response vessels got underway. Tr. at 72. McCloskey arrived on 

the scene approximately 13 minutes after he received the call. Tr. at 85. During this 

time, the weather was clear, it was dark and the seas were less than a foot. Tr. at 73. At 

the scene, the Coast Guard took nine people off the vessel while one of the Coast 

Guardsmen boarded the vessel to inspect the damage. Tr. at 73. 

LT Douglas Campbell, Supervisor of Marine Safety Detachment Marathon, 

Florida, was notified of the incident at approximately 2200 and arrived on scene one to 

one and one-half hours later. Tr. 38-39. At that time, the weather was clear with a light 

breeze and intermittent clouds. Evidence of passing thunderstorms could be seen in the 

distance. Tr. at 33. LT Campbell did an inspection of the entire vessel and stated, “...I 

didn’t notice any charts out, I didn’t notice any spotlights, any additional equipment that 

night.” Tr. at 34. The M/V ST. LUCIE did not have a compass on board at any time 

during the excursion prior to the allision. Tr. at 157. 3

As part of the casualty investigation, the Coast Guard determined that Chatlada 

Ketkaew, a member of the crew, did not have a drug free certificate at the time of the 

3

 The requirement for a compass on small passenger vessels is set forth in 46 C.F.R. § 184.402(a); Except 

as otherwise provided in this section every vessel must be fitted with a suitable magnetic compass designed 

for marine use, to be mounted in the primary operating station. A vessel operating on short restricted 

routes on lakes, bays or sounds is not required to be fitted with a compass pursuant to 46 C.F.R. 
HAUCK No. 2639 

6

excursion and had not taken a pre-employment drug test. Tr. at 116. She took the drug 

test a few days later on August 2, 2000, after the subject incident. Exhibit IO-3. 

The vessel was ultimately towed to a shipyard at Ft. Lauderdale, Florida, where 

the damage to the vessel from the allision amounted to $124,458.75. Tr. at 96. The cost 

of replacement of the Bethel Bank Daymarker No. 19 was $12,869.46. Exhibit IO-10. 

No persons were injured in the allision and no oil was spilled into the water. D&O page 

9. 

 BASES OF APPEAL

Respondent asserts the following bases for appeal from the decision of the ALJ: 

I. The ALJ erred in concluding the Respondent failed 

to rebut the presumption of negligence. 

II. The application of the presumption of negligence 

that arises when a moving vessel strikes a fixed 

object is inappropriate in this case. 

III. The ALJ erred in admitting certain evidence and 

basing findings thereon. 

IV. The Coast Guard’s investigating officer failed to 

conduct the investigation of this incident in 

accordance with applicable regulations. 

 OPINION

I 

This appeal has been taken from the D&O imposed by the ALJ. Respondent 

raises four bases of appeal that apply to the charge of negligence and the charge of 

violation of law or regulation for failing to maintain a proper lookout. 

Respondent does not appeal the finding that Respondent’s vessel allided with the 

Bethel Bank Daymarker No. 19 and damaged it in violation of 33 C.F.R. Part 70 or the 

finding that Respondent as the Marine Employer and owner of Key West Steamboat 

 

§ 184.402(b)(3). LT Douglass Campbell testified that the vessel was required to have a compass, although 
HAUCK No. 2639 

7

Company, Inc. failed to ensure compliance with 46 C.F.R. Part 6 by failing to enroll one 

of his crew members, Ms. Chatlada Ketkaew, in a chemical testing program. I will not 

take up these charges in my opinion. Since the period for appeal has run pursuant to 33 

C.F.R. § 20.1001(a), the ALJ’s decision on those issues is final. 

At the outset, a brief discussion of the standard of review is necessary. The ALJ 

is vested with broad discretion in making determinations regarding the credibility of 

witnesses and in resolving inconsistencies in the evidence. Appeal Decisions 2527 

(GEORGE), 2522 (JENKINS), 2519 (JEPSON), 2516 (ESTRADA), 2503 (MOULDS), 

2492 (RATH), and 2614 (WALLENSTEIN). Findings of the ALJ need not be consistent 

with all the evidentiary material in the record as long as sufficient material exists in the 

record to justify the finding. Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 

2519 (JEPSON), 2506 (SYVERSTEN), 2424 (CAVANAUGH), 2282 (LITTLEFIELD), 

and 2614 (WALLENSTEIN). 

Nonetheless, I will reverse the decision if the findings are arbitrary, capricious, 

unsupported by law, clearly erroneous, or based on inherently incredible evidence. 

Appeal Decisions 2570 (HARRIS), aff’d, NTSB Order No. EM-182 (1996), 2390 

(PURSER), 2363 (MANN), 2344 (KOHAJDA), 2333 (AYALA), 2581 (DRIGGERS), 

2474 (CARMIENKE), 2607 (ARIES), and 2614 (WALLENSTEIN). 

Respondent contends that, assuming the presumption of negligence applies, the 

ALJ erred in concluding the Respondent failed to rebut the presumption. I disagree. 

The ALJ found that, the investigating officer established a prima facie case of 

negligence, resulting in a presumption of negligence, by showing that the M/V ST. 

LUCIE struck a stationary navigational aid. The ALJ correctly stated that a presumption 

of negligence, once established, requires Respondent to produce evidence to rebut it. 

 

this requirement may have been overlooked during the vessel’s last marine inspection. Tr. at 41. 
HAUCK No. 2639 

8

D&O page 11. The Respondent can rebut the presumption by showing a “creditable, 

non-fault explanation” for the allision, which “defeats the presumption and obligates the 

Coast Guard to go forward with evidence to counter the seaman’s explanation or to show 

that he was, nevertheless, guilty of some specific act of negligence.” Commandant v. 

Murphy, NTSB Order No. EM-139 (1987) pg. 2., reconsideration denied, NTSB Order 

No. EM-144 (1987), See also, Appeal Decision 2588 (LASCORA). 

In an attempt to rebut the presumption, Respondent argues that the rain squall 

arose so quickly and was so intense that the accident was inevitable. In similar 

circumstances, the Commandant has stated: 

An accident is said to be "inevitable" not merely when 

caused by vis major or the Act of God, but also when all 

precautions reasonably to be required have been taken and 

the accident has occurred notwithstanding. Appeal 

Decision 2419 (MURPHY), Appeal Decision 2217

(QUINN)

GILMORE AND BLACK, THE LAW OF ADMIRALTY, 2ND EDITION, 

p. 486. 

 The burden of establishing inevitable accident is a heavy one. Boudin v. J. Ray 

McDermott & Co., 281 F.2d 81 (5th Cir. 1960) (unexpected severity of forecast hurricane 

does not establish inevitable accident). Parties claiming the accident was inevitable must 

show that they did all that reasonable care required. Id. at 88. The burden of persuasion 

is on the party against whom the presumption operates. James v. River Parishes Co., 686 

F. 2d 1129, 1132-1133 (5th Cir. 1982). 

 Respondent implies that no reasonable action could have been taken to avoid 

this casualty. However, the ALJ found that the Respondent did not do all that reasonable 

care required. The Coast Guard showed that the Respondent continued to make way at 

six knots under conditions where visibility was near zero; and he did so without posting a 

dedicated lookout. He navigated with only dead reckoning, which proved to be 
HAUCK No. 2639 

9

inadequate under the circumstances. He attempted to maintain his course even though 

the vessel did not have a compass, GPS or loran to assist with navigation. While 

underway during reduced visibility, the Respondent was unable to accurately determine 

the vessel’s course or position. When asked: “What were you navigating with? What 

were you using to guide you, to navigate, while you were making your voyage?” 

Respondent stated: “Flat seat of the pants, as it said in my answer to you.” Tr. at 157. 

When asked if he had a chart, Respondent replied: “ Yes, I had a chart in front of me. 

But I don’t have any GPS or loran that’s required to be on the boat, or a compass for that 

matter to aid me in utilizing the chart.” Tr. at 157. 

The Respondent testified that on the return voyage, the weather got lousy with 

gusts to 40-plus knots. Tr. at 151. Visibility was reduced to 50 feet in squalls. Tr. at 

152. Just before the allision, the vessel was making about six knots, as well as being 

blown sideways at about 10 to 12 knots. Tr. at 153. The ALJ evaluated the 

Respondent’s testimony and description of the weather along with the testimony of other 

witnesses and the evidence presented. Where there is conflicting testimony, it is the 

function of the ALJ, as fact-finder, to evaluate the credibility of witnesses and resolve 

inconsistencies in the evidence. See Charles A. Grahn, Respondent, 3 N.T.S.B. 214 

(Order EA-76, 1977); Appeal Decisions 2424 (CAVANAUGH), 2386 (LOUVIERE), 

2340 (JAFFEE), 2333 (AYALA), 2302 (FRAPPIER), 2116 (BAGGETT), and 2460

(REED). The premise that it is exclusively within the province of the fact-finder to 

weigh the credibility of witnesses is well accepted. See United States v. Oregon State 

Medical Soc., 343 U.S. 326, 72 S. Ct. 690, 96 L. Ed. 978 (1952); Pennsylvania R. Co. v.

Chamberlain, 288 U.S. 333, 53 S. Ct. 391, 77 L. Ed. 819 (1933); Chesapeake & O. R. 

Co. v. Martin, 283 U.S. 209, 51 S. Ct. 453, 75 L. Ed. 983 (1931); United States v. 
HAUCK No. 2639 

10

Caldwell, 820 F.2d 1395 (5th Cir. 1987); United States v. Bales, 813 F.2d 1289 (4th Cir. 

1987); Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). 

Furthermore, an appellate reviewing body should not substitute its own 

determination of credibility for that of the fact finder. See Martin v. American Petrofina 

Inc., 779 F.2d 250 (5th Cir. 1985); Knapp v. Whitaker, 757 F.2d 827 (7th Cir. 1985); 

Government of Virgin Islands v. Gereau, 502 F.2d 914 (3rd Cir. 1974), cert. denied 420 

U.S. 909, 95 S. Ct. 829, 42 L.Ed.2d 839 (1975); Wilkin v. Sunbeam Corp., 466 F.2d 714, 

717 (10th Cir. 1972), cert. denied, 409 U.S. 1126 (1973). 

The underlying rationale for these rules is that the fact-finder can be influenced 

by the witness's demeanor, his tone of voice, his body language, and other matters that 

are not captured within the pages of a cold appellate record. See Charles A. Grahn, 

Respondent, 3 N.T.S.B. 214 (Order EA-76, 1977); Reagan v. United States, 157 U.S. 

301, 15 S. Ct. 610, 39 L. Ed. 709 (1895); Government of Virgin Islands v. Gereau, 502 

F.2d 914 (3rd Cir. 1974), cert. denied 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed.2d 839 

(1975). The fact-finder can also balance the bias or interest of a witness in determining 

credibility. Sonnentheil v. Christian Moerlein Brewing Co., 172 U.S. 401, 19 S. Ct. 233, 

43 L. Ed. 492 (1899); Reagan v. United States, 157 U.S. 301, 15 S. Ct. 610, 39 L. Ed. 

709 (1895). 

The ALJ found the Respondent did not produce sufficient creditable evidence to 

show that the allision was inevitable. Nor did the Respondent show that his vessel was 

without fault or that the incident was occasioned by the fault of a third party. Thus, in 

light of the rules concerning credibility of witnesses, the finding that Respondent did not 

rebut the presumption of negligence is supported by substantial evidence of a reliable and 

probative nature and will not be reversed on appeal. 
HAUCK No. 2639 

11

Respondent was also charged with a violation of law or regulation, for failing to 

maintain a proper look-out for the prevailing circumstances and conditions. I will discuss 

the charge here because the ALJ found that Respondent’s failure to post a lookout and to 

proceed blindly ahead constituted negligence under the circumstances. D&O page 12. 

As noted previously, all of the events relative to the casualty occurred in the vicinity of 

Bethel Bank and waters north of the city of Marathon, Florida. This body of water is 

subject to the International Regulations for Preventing Collisions at Sea, 1972 (72 

COLREGS) pursuant to 33 C.F.R. § 80.740. As such, the applicable statute under the 

first violation of law or regulation is 33 U.S.C. § 1602, et seq. Although not addressed in 

the briefs, the Coast Guard charged this violation under Inland Rule 5 rather than the 

applicable 72 COLREGS Rule 5 at 33 U.S.C. § 1602. I find that this error is harmless 

because the text of both rules is identical and the Respondent was fully informed of the 

nature of the charge in order to prepare his defense. 

 Suspension and revocation proceedings are intended to be remedial in nature. 

They affix neither criminal nor civil liability. These proceedings are intended to help 

maintain standards for competence and conduct essential to the promotion of safety at 

sea. See 46 C.F.R. § 5.5. Administrative pleadings in these matters are not rigidly bound 

by the procedural rules governing criminal and civil trials. Kuhn v. CAB, 183 F.2d 839 

(D.C. Cir. 1950). "It is sufficient if the [Appellant] 'understood the issue' and 'was 

afforded full opportunity' to justify [his] conduct.” Citizens State Bank of Marshfield, MO 

v. FDIC, 752 F.2d 209 (8th Cir. 1984); NLRB v. MacKay Radio & Telegraph Co., 304 

U.S. 333, 58 S. Ct. 904, 82 L.Ed. 1381 (1938); Aloha Airlines v. CAB, 598 F.2d 250 

(D.C. Cir. 1979). I find that in this case, the specification set forth the facts that formed 

the basis of the charge and enabled the Respondent to identify the act or offense so that a 

defense could be prepared. 
HAUCK No. 2639 

12

The Coast Guard showed that the Respondent did not post a dedicated look-out. 

The ALJ found that a dedicated look-out should have been posted. Respondent argues 

that under the circumstances of this case, as watch officer and helmsman, he could 

properly serve as lookout. I disagree. Rule 5 of the International Regulations for 

Preventing Collisions at Sea, 1972 (72 COLREGS), 33 U.S.C.§ 1602, requires that: 

"Every vessel shall at all times maintain a proper look-out by sight and hearing as well as 

by all means appropriate in the prevailing circumstances and conditions so as to make 

full appraisal of the situation and of the risk of collision." The adequacy of a look-out on 

board a vessel underway is a question of fact to be determined in light of the existing 

facts and circumstances. See Appeal Decisions 2421 (RADER) and 2319 (PAVELEC). 

See also Appeal Decisions 2390 (PURSER) and 2046 (HARDEN). The ALJ considered 

whether the facts and circumstances of the case permitted Respondent to serve as a 

proper look-out. 

A review of the legislative history shows that Congressional intent when writing 

this rule, as expressed in Senate Report No. 96-979 (1980), which accompanies Rule 5, 

was to permit the watch officer or helmsman to serve as the sole look-out in certain 

circumstances. However, the report states in pertinent part: 

On vessels where there is an unobstructed all-round view 

provided at the steering station, as on certain pleasure craft, 

fishing boats, and towing vessels, or where there is no 

impairment of night vision or other impediment to keeping a 

proper lookout, the watch officer or helmsman may safely 

serve as the lookout. However, it is expected that this 

practice will only be followed after the situation has been 

carefully assessed on each occasion, and it has been clearly 

established that it is prudent to do so. Full account shall be 

taken of all relevant factors, including but not limited to 

the state of the weather, conditions of visibility, traffic 

density, and proximity of navigational hazards. It is not 

the intent of these rules to require additional personnel 

forward, if none is required to enhance safety. 
HAUCK No. 2639 

13

 S. Rep. No. 979, 96th Cong., 2d Sess. 7-8 (1980), reprinted in 

1980 U.S. CODE CONG. & ADMIN. NEWS 7068, 7075. 

(Emphasis added). 

 

The ALJ addressed the factors that supported his conclusion that under the 

circumstances, a look-out other than the Respondent was required to enhance safety. The 

ALJ's findings concerning Respondent's failure to maintain a proper look-out as required 

by Rule 5 are supported by reliable, probative, and substantial evidence and will not be 

disturbed on appeal. See Appeal Decisions 2468 (LEWIN), 2420 (LENTZ), 2421 

(RADER), and 1758 (BROUSSARD). 

Respondent argues that the Coast Guard did not prove that failing to post an 

additional lookout caused the allision. A specification supporting a charge of violation of 

law or regulation must adhere to the guidelines set forth in 46 C.F.R. § 5.33, as follows: 

Where the proceeding is based exclusively on that 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 to 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. 

Likewise, a specification supporting a charge of negligence must adhere to 46 C.F.R. 

§ 5.29, as follows: 

Negligence is the commission of an act which a reasonable 

and prudent person of the same station, under the same 

circumstances, would not commit, or the failure to perform 

an act which a reasonable and prudent person of the same 

station, under the same circumstances, would not fail to 

perform. 

 The assertion in each specification that Respondent’s action contributed to the 

allision is not a necessary element to support a finding of proved, but rather an 

aggravating circumstance. In Appeal Decision 2415 (MARSHBURN), the 
HAUCK No. 2639 

14

Commandant concluded: "It is not, however, improper to allege and prove the 

consequence of a negligent act. The consequence, such as a collision or an allision, 

though unnecessary to support a decision finding negligence, may be an aggravating 

factor, or the lack thereof may be a mitigating factor, and hence it may be proved 

whether or not it is alleged.” See also, Appeal Decisions 2515 (COUSINS) and 2129 

(RENFRO). Failure to prove such an aggravating circumstance does not render the 

specification defective, nor does it create a defense to the charge and specification. 

Appeal Decision 2319 (PAVELEC). Therefore, it is not necessary that the Coast Guard 

prove that the failure to post a look-out “caused” the allision, only that it was negligent 

under the circumstances to fail to do so. 

Respondent argues that the position of Bethel Bank Daymarker No. 19 was 

uncertain since various charts and reports indicate different coordinates and that therefore 

actions and omissions of the Coast Guard caused the collision. Contributory negligence 

is not a defense in suspension and revocation proceedings pursuant to 46 U.S.C. § 7701. 

These proceedings are remedial in nature. See 46 CFR § 5.5. The only issue is whether 

Respondent's actions and omissions were negligent. See Appeal Decisions 2415 

(MARSHBURN), 2380 (HALL), 2175 (RIVERA), 2096 (TAYLOR/WOODS), and 1670 

(MILLER). Furthermore, the ALJ determined that there was no indication prior to the 

allision that the daymarker was off station. Nor was there any reliable evidence 

submitted at the hearing that the location of the Daymarker on NOAA Chart 11452 was 

incorrect. D&O page 17. 

II 

The Respondent challenges the presumption of negligence which arises when a 

moving vessel allides with a fixed object. Respondent contends that such a presumption 
HAUCK No. 2639 

15

is inappropriate in this case because the allision was caused by an unpredictable storm 

and the result of an unavoidable accident or act of God. This argument is without merit. 

It is well settled that a presumption of negligence may be invoked in Suspension and 

Revocation proceedings. Appeal Decisions 2373 (OLDOW), aff’d sub nom. 

Commandant v. Oldow, NTSB Order EM-121 (1985); 2368 (MADJIWITA), aff’d sub 

nom. Commandant v. Madjiwita, NTSB Order EM-120 (1985); 2272 (PITTS), modified 

sub nom. Commandant v. Pitts, NTSB Order EM-98 (1983); 2174 (TINGLEY), aff’d sub 

nom. Commandant v. Tingley, NTSB Order EM-86 (1981); 2173 (PIERCE), aff’d sub 

nom. Commandant v. Pierce, NTSB Order EM-81 (1980); and Woods v. United States, 

681 F.2d 989 (5th Cir. 1982). As Judge Rubin, writing for the Fifth Circuit in Woods, 

stated: 

When a moving vessel collides with a fixed object there is 

a presumption that the moving vessel is at fault, and this 

presumption suffices to make out a prima facie case of 

negligence against the vessel. Brown and Root Marine 

Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 

726 (5th Cir. 1967). The burden of disproof of fault by the 

moving vessel requires demonstration that its operator did 

all that reasonable care required. Id. The presumption of 

negligence applies to the operator as well as to the vessel. 

It works against all parties participating in the management 

of the vessel at the time of contact. (Citations omitted.) 

Id at 990. 

III 

 Respondent argues that the ALJ improperly admitted certain evidence and 

based his findings thereon. The argument is without merit. Respondent did not specify 

what evidence was improperly admitted in his appeal brief, however, he did object to the 

admissibility of witness testimony and documentary evidence in his hearing reply brief. 

Respondent objected to the testimony of Officer Steven Golden and LT Douglas 

Campbell. In the D&O, the ALJ determined that both Officer Steven Golden and 
HAUCK No. 2639 

16

LT Douglas Campbell were on the Coast Guard’s witness list and their testimony was 

admissible. D&O page 16. Respondent also objected to the admission of NOAA Chart 

11452, Alligator Reef to Sombrero Key, 19th edition, printed 1997. The chart was 

admitted on motion at the hearing. The Respondent did not object during the hearing. 

Tr. at 184. When the Respondent subsequently objected to the chart in his hearing reply 

brief, the ALJ found that the objection was untimely. Relevant and material evidence is 

admissible in suspension and revocation proceedings. 46 C.F.R. § 5.20-95(a). Appeal 

Decision 2288 (GAYNEAUX). "It is the duty of the Administrative Law Judge to 

evaluate the evidence and testimony presented at the hearing." Appeal Decision 2378

(CALICCHIO). Where the ALJ's determination as to the admissibility and relevance of 

evidence is not clearly erroneous or arbitrary and capricious, it will not be disturbed on 

appeal. See CALICCHIO, supra. See also O'Kon v. Roland, 247 F. Supp. 743 (S.D.N.Y. 

1965). 

IV 

The Respondent contends that the ALJ erred in refusing to consider evidence of 

alleged misconduct on the part of the Coast Guard investigating officer who investigated 

this casualty and who subsequently preferred the charge and presented the Coast Guard's 

case before the ALJ. The Respondent alleges that the investigating officer failed to abide 

by the rules and regulations pertaining to the investigation of marine casualties. The 

Respondent did not specify what rules and regulations were allegedly violated and did 

not otherwise describe the alleged misconduct in his appeal. I have reviewed the record 

and find that this argument is without merit. 

 Suspension and revocation proceedings are procedurally distinct from prehearing investigations. Appeal Decision 2216 (SORENSON). Concerning this issue, the 

Commandant has held: 
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[W]hen a party has been accorded all his rights in a Part [5] 

proceeding, when evidence properly excludable has been 

excluded, and when the procedural requirements for a 

hearing under the part have been met, no alleged error in a 

proceeding under Part [4], nakedly and without more, 

constitutes a bar to hearing under Part [5]. 

Appeal Decision 2004 (LORD), See also Appeal Decision 

2158 (MCDONALD). 

CONCLUSION 

 The actions of the Administrative Law Judge had a legally sufficient basis. The 

Administrative Law Judge’s decision was not arbitrary and capricious and was not 

clearly erroneous. Competent, substantial, reliable and probative evidence existed to 

support the findings and order of the Administrative Law Judge. I find the Respondent’s 

bases of appeal are without merit. 

 

 ORDER

 The Decision and Order of the Administrative Law Judge, dated October 2, 2001, 

is AFFIRMED. 

 //S// 

THOMAS J. BARRETT 

 Vice Commandant 

Signed at Washington, D.C., this 10th day of March, 2003. 
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