UNITED STATES OF AMERlCA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF A1\11ERJCA 

U ITED ST A TES COAST GUARD 

VS. 

MERCHANT MARINER LICENSE 

Issued to: THEODORE DALE HOWELL 

DECISION OF THE 

VlCE COMl\ifANDA1 T 

ON APPEAL 

0. 2654 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. Part 

5, and the procedures set forth in 33 C.F.R. Part 20. 

By a Decision and Order (hereinafter "D&O") dated July 21, 2003, an 

Administrative Law Judge (hereinafter "ALJ") of the United States Coast Guard at 

Portland, Oregon, revoked Theodore Dale Howell 's (hereinafter "Respondent's") 

merchant mariner license upon finding proved a charge of violation of law or regulation. 

The charge was based on two specifications: I) failure to conduct a safety orientation in 

violation or 46 C.F.R. § 26.03-1; and, 2) failure to post safety instructions in violation of 

46 C.F.R. § 26.03-2. 

PROCEDURAL HISTORY 

The Coast Guard filed its Complaint against Respondent on March 11. 2003. 

Respondent filed his Answer to the Complains admitting all jurisdictional and all factual 

allegations, and requesting that a hearing be held on the sanction to be imposed on March 

21, 2003. 
HOWELL NO. 2654 

The Hearing in lhe matter was held on May 28, 2003, at Coasc Guard Marine Safety 

Office, Portland, Oregon. Respondent appeared with counsel and confirmed the 

admissions contained in his Answer. including the following: 

1. He was the holder of the Coast Guard license at issue in the instant proceedings 

and acted under the authority of that license on May 18. 2002, while serving as 

Operator of the Uninspected Passenger Vessel (hereinafter "UPV") TED'S. 

2. On May J 8, 2002, on the Pacific Ocean near Garibaldi, Oregon, he: l) violated 

46 C.F.R. § 26.03-l by not conducting a safety orientation prior to getting 

underway with 2 passengers for hire; 2) violated 46 C.F.R. § 26.03-2 by not 

ensuring that an emergency check off list was posted in a conspicuous place for 

passengers on board the UPV TED'S. 

3. These regulations are intended to promote marine safety or protect navigable 

waters. 

[Transcript (hereinafter "Tr.") at 33-36] 

Based on the foregoing, the ALJ ruled that the allegations in the Coast Guard's 

complaint were proved and that the only question remaining before the court was the 

selection of the appropriate sanction. The evidence at the hearing was limited to 

testimony and exhibits related to the sanction to be imposed, including any mitigating and 

aggravating factors. At the hearing, the Coast Guard called two witnesses and introduced 

14 exhibits into evidence. Respondent called one witness and introduced two exhibits 

into evidence. Al the conclusion of the evidence, the parties waived the filing of 

proposed findings of fact and conclusions of law and made oral closing arguments. A 

2 
!lOWELL NO. 2654 

transcript was ordered to assist the ALJ in rendering a decision and was received by the 

ALJ on July 14. 2003. 

The ALJ issued bis D&O, finding the charges proved and ordering the revocation 

of Respondent's Merchant Mariner License on July 21, 2003. Respondent filed a. otice 

of Appeal on August 5. 2003 and perfected his appeal by filing the required appellate 

brief on September 12. 2003. 

The Coast Guard submitted its "Response to Brief of Appellant" (hereinafter 

"Reply Brief') on October 24, 2003. On October 28, 2003, Respondent submitted an 

objection to the Coast Guard's brief, alleging that the same was untimely. 

APPEARANCES: Craig W. Weston, Esq., Reitsch & Westo ~ P.L.L.C., 

1408 16th Ave., P.O. Box 250, Longview, WA, 98632, for Respondent. The Coast Guard 

was represented by LT Anthony Sellers, LT Marianne Gelakoska, and LTJG Belana 

Audirsch, and CAPT Paul 0. Jewell, USCG, Marine Safety Office Portland, Oregon. 

FACTS 

The facts in this case are not in dispute except to the extent that Respondent takes 

issue with the ALJ's Findings of Fact numbers 6, 7, 2 1and 23 as a basis for this appeal. 

At the time of the incident, Respondent had been employed as a commercial 

fisherman and a :fishing guide for approximately 35 years, including the 15 preceding 

years as a fishing guide in and about the Tillamook Bay area off the Oregon coast. [D&O 

at 4; Coast Guard Exhibit 5; Tr. at 165] Respondent first obtained a Coast Guard license 

in 1991 and, thereafter, became the owner and operator of the 25-foot UPV TED'S. 

[D&O at 4; 1.0. Exhibits 1 and 2] Respondent operated the UPV TED'S as a commercial 

3 
HOWELL NO. 2654 

charter sports fishing vessel. At all times relevant to these proceedings. Respondent 

served tmder the authority of his license. 

On May 18, 2002, at about 5: 15 a.m .. the TED'S departed from the Garibaldi Old 

Mill Marina with Respondent and two customers, Messrs. Davies and Campbell. as 

passengers for a two-day fishing trip. (D&O at 4; I.O. Exrubit 7] Both passengers 

appeared to Respondent to be expeiicnced fishem1en in the Tillamook Bay area and each 

owned power boats. [D&O at 4; Tr. at 174] When the vessel departed port, it had seven 

Coast Guard approved life preservers on board, stored in a tower above the center 

console. [D&O at 5; LO. Exrubit 5; Tr. at 216] 

The Tillan1ook Bay Bar ("the bar") is an area between the north and south jetties 

at Kincheloe Point and in Tillamook Bay, Pacific Ocean along the Coast of Oregon. [1.0. 

Exhibit 12 (Portion of NOAA Chart 18558))

1 When the TED's crossed the bar at 

approximately 6:00 a.m., it was unrestricted and open to all vessels. [LO. Exrubit 5: Tr. at 

175] Conditions at the bar later deteriorated. [D&O at 5-6: LO. Exhibit 5, Incident Brief 

at 1] At 7: 15 a.m., a Coast Guard 47-foot motor lifeboat was sent to patrol the bar, and 

the rough bar warning light was activated. [D&O at 6; 1.0. Exhibit 5, lncident Report at 

l] At 9:00 a.m., the bar became restricted to all recreational and Uninspected 

Commercial Passenger Vessel traffic due to unsafe conditions, and it remained restricted 

until the time the UPV TED' S capsized. [Tr. at 91-92; 1.0. Exhibit 14] During this time, 

Respondent was monitoring VHF channel 16 and heard the bar reports. [D&O at 6; LO. 

1 Tillamook Bay Bar is more specifically defined in 33 C.F.R. ~ 177 .08, as folJows: 

Tillamook Bay Bar. Oreg From a point on the shoreline at 45° 35' 15'' .. 123° 57'05" W Lhence westward 

45° 35'15" N .• 124° 00'00" W. thence southward to 45° 30'00" ., 124° 00'00" W. thence eastward to a point 

on the shoreline at 45° 30'00" N., 123° 57'40" W. thence northward along the shoreline to the north end of 

Kincheloe Point at 45° 33'30" N., 123° 56'05" W. thence northward to a point on thi.: north shoreline of lhc 

4 
HOWELL NO. 1654 

Exhibit 5, Incident Report at 1] Although respondent was aware of the worsening 

conditions, he continued his fishing expedition, trolling for salmon off the tip of the 

South Jetty, working the area to the South back and forth. [D&O at 6; Tr. at 176-177; 

1.0. Exhibit 5] 

At approximately I l :50 a.m., Respondent suddenly noticed a 10-foot wave about 

I 00 yards away with about 5 to 6 feet of white water. He navigated the vessel over the 

top of the wave. A second fast moving wave, about J 2-14 feet high followed, and lhc 

Respondent was unsuccessful in his attempt to navigate over it. The vessel capsized 

throwing all passengers and Respondent into the water. The capsizing occurred at 

approximately 12:00 noon. [D&O at 6-7; LO. Exhibit 5, Statement of Ted Howell; Tr. at 

104-105, 179-180] Prior to the date of the casualty, Respondent bad encountered similar 

sudden waves. [Tr. at 180] As be testified, "This is a treacherous locality. This is one of 

the treacherous localities on the Pacific Coast. I fished them all." [Tr. at 180] 

The Coast Guard lifeboat was nearby and observed the TED'S taking large 

waves, as well as the capsizing, and recovered all three persons fi-orn the water; however, 

only Respondent survived. [D&O at 7; 1.0. Exl1ibit 5; Tr. at 81-84] Neither the 

passengers nor Respondent were wearing life preservers when they were thrown into the 

water. One passenger, Mr. Campbell was clutching a cooler. [D&O at 7; LO. Exhibits 5 

and 8; Tr. at 181 -1 82] Respondent was able to grab a life preserver from ilie vessel and 

had one arm through it when he was recovered by the Coast Guard. [D&O at 7; 1.0. 

Exhibits 5 and 8; Tr. at 181-182] 

harbor at 45° 33'40" '., 123° 55'59" W. thence we;:stward along the non.h shoreline of the harbor then 

nonhward along the seaward shoreline to the beginning. 

5 
HOWELL NO. 2654 

BASES OF APPEAL 

This appeal is taken from the D&O imposed by the AU finding proved the charge 

of Violation of Law or Regulation. Respondent's bases of appeal are summarized as 

follows: 

I. The ALJ erred or was arbitra1y and capricious by entering Findings of 

Fact Nos. 6, 7, 21 and 23 in the written Decision and Order dated Ju(v 21. 

1003, without substantial evidentia1y support. 

II. The ALJ 's Finding of Pact and Conclusion of Law No. 4 is not supported 

by substantial evidence and/or is not in accord with applicable Law, 

precedent and public policy. 

m. The ALJ abused his discretion in ordering that appei/ant 's license be 

revoked as the sanction for violating 46 C.F.R. § 26.03-1 and 

46 C.F.R. § 26.03-2. 

As a preliminary matter, I will address the timeliness of the Coast Guard's Reply 

Brief. The record shows that although the Coast Guard's Reply Brief was due for 

submission on October 14, 2003, the Brief was filed on October 24, 2003. l have held 

that"[ o ]nly in cases of extraordinary or extenuating circumstances will the Coast Guard 

deviate from its practice of strict adherence to the timeliness of procedural requirements. 

Appeal Decisions 2631 (SENGEL) and 2553 (ROGERS). This requirement is as 

applicable to the Coast Guard and its submissions as it is to Respondents. Therefore, in 

the instant case. l will only consider the Coast Guard's Reply Brief. untimely filed, if 

there were extraordinary or extenuating circumstances which prevented the timely 

submission of that document. I believe that such circumstances were, in fact, present in 

this case. The Appeal was sent by regular U.S. mail addressed to the Investigator who 

6 
HOWFLL NO. 2654 

represented the Coast Guard at the hearing. The item was assumed by the distribution 

center to be personal mail and was placed in the Investigator's box. while the Investigator 

was out of state on a two-month temporary assigned duty, a circumstance of military 

exigency. Therefore, although the Coast Guard failed to file its Reply Brief in a timely 

manner, I will consider it because there were extenuating circumstances which prevented 

its timely submission. 

I. 

The ALI erred or was arbitra1y and capricious by entering Findings of Fact Nos. 6, 7, 1 I 

and 23 in the written Decision and Order dated July 21, 2003, without substantial 

evidentiary support. 

With respect to my review of the ALJ's Findings of Fact, the law is well settled. 

See, e.g. Appeal Decision 2450 (FREDERICKS). The duty of the AU, sitting as trier of 

fact. is to evaluate the evidence presented at the hearing. Id. The AU has discretion to 

find the ultimate facts pertaining to the specifications. Id. The findings need not be 

consistent with all evidentiary material contained in the record so long as sufficient 

material exists in the record to justify such a finding. Id. I may only reverse the ALJ 's 

decision if bis findings are arbitrary, capricious, clearly e1Toneous, or based on inherently 

incredjble evidence. Appeal Decisions 2584 (SHAKESPEARE), 2570 (HARRIS), aff'd 

NTSB Order No. EM-182 (1996). 2390 (PURSER), 2363 (MANN), 2344 CKOHAJDA). 

2333 CAY ALA), 2581 (DRIGGERS), and 2474 CCARM1ENKE). 

A. Finding of Fact No. 6 

Respondent contends that the evidence did not support the ALJ's finding that 

Mr. Davies "appeared to Respondent to be concerned about life preservers." The ALJ 

found as follows: "One passenger. a Mr. Davies appeared to Respondent to be concerned 

7 
HOWELL NO. 2654 

about lite preservers and each passenger expressed to Respondent they had the same life 

preservers on board their O\Yn power boats that he had on the TED's.'· [D&O at 4. 

finding of fact no. 6.] Respondent contends that the evidence did not show Mr. Davies to 

be concerned about life preservers, but rather, implied he was ··more of an ·enthusiast' or 

'collector' of life preservers." Upon a thorough review of the record, I do not believe that 

the ALJ based his conclusion, in this regard, on incredible evidence; rather, 1 believe that 

the ALJ's factual conclusion was a reasonable one, supported by the testimony in the 

record. The record shows that Respondent addressed Mr. Davies' posture on life 

preservers during the Hearing: 

Q. Was there any discussion about life preservers, about the use of them. with 

Mr. Davies or Mr. Campbell? 

A. . .. Davies was kind of a life preserver freak almost, because he owned half a 

dozen inflatables for his own operation. But this day he did not bring one ... 

[Tr. at 175]2 In any event, there is no indication in the ALJ's written opinion that he 

relied or placed w1duc emphasis on this particular Finding of Fact in reaching his 

conclusion on the imposition of a sanction; it is not mentioned in the "Discussion" 

portion of the D&O. Moreover, whether the deceased was "concerned" about life 

preservers, or wbetbcr, as Respondent contends he was an "enthusiast" or "collector" of 

them, does not bear on my decision. Most importantly, since the AU's finding, in this 

:i Respondent later in testimony referred to Mr. Campbell as ·'almost a life preserver fanatic." [Tr. at 

192.] It is not clear whether Respondent confused which of the two passengers. or whet11er both of 

them, had I.be interest in life preservers. However, resolution of this lack of clarity is unnecessary to 

my decision. 

8 
HOWELL NO. 2654 

regard. was not material to the imposed sanction. it is harmless error. See Appeal 

Decisions 2572 (MORSE), 2531 (SERREITE). and 2487 {THOMAS). 

B. Finding of Fact No. 7 

The ALJ's Finding of Fact number 7 was as follows: 

Respondent has not, prior to getting underway on a fishing trip, regularly given a 

safety orientation, as required by 46 CFR 26.03-l , nor has he posted on board the 

TED'S any emergency instructions. as specified in 46 CFR 26.03-2, but on this 

fishing trip he d:id discuss with the two passengers the locations of the life 

preservers, fire extinguishers, electronic gear. 

Respondent contends that this Finding of Fact was deficient in that, with respect to the 

safety orientation, the AU did not include a finding (1) U1at the Respondent went through 

the proper method of putting the life preservers on and off, and (2) that he described for 

the passengers the type and location of all life saving devices carried on the vessel. 

Respondent does not take issue with this finding in any other respect. The evidence on 

this point consisted of the examination of the Respondent, as follows: 

Q. Were they shown where they (the life preservers] were on the boat? 

A. Oh. yeah. It's obvious where they were. You couldn't help see them ... 

[Tr. at 175] 

Q. And the type and location of all lifesaving devices carried on the vessel, 

did you describe that to them? 

A. The what? 

Q. Type and location of all lifesaving devices. That's what it says you're 

supposed to do. 

A. Well, the type and location, yeah. That was obvious. 

[Tr. at 184] 

9 
HOWELL NO. 2654 

Q. Why don't you give me the orientation you gave them? Tell me what you 

said ... Tell me exactly as you recall wbat did you tell them? 

t\. l said. Stan, and Mr. Davies. 100 - I can't remember first names - but you 

can see where the life preservers are. To get one. all you got to do is reach 

up and get one. That was probably the extent. 

Q. Nothing more? 

A. No. 

[Tr. at217-218] 

Respondent's testimony supports the ALJ 's conclusion that the safety orientation 

consisted of discussing with the two passengers the locations of the life preservers, fire 

extinguishers, and electronic gear. I have long held that a finding of fact, supported by 

evidence should not be disturbed. Appeal Decision 2279 (LEWIS). Because theAU's 

Finding of Fact number 7 is well-supported by the evidence, there is no basis for 

disturbing his determination regarding the content of the safety orientation given by the 

Respondent. 

C. Finding of Fact No. 21 

Respondent contends that the ALJ 's finding that " [t]he Coast Guard lifeboat ... 

was in the process of coming to it in order to orally instruct lhem to leave the area" is not 

supported by the evidence. I disagree. Coast Guard BMl Kevin Spears, who testified at 

the hearing, was the duty surlinan for Station Tillamook Bay on the date of the incident. 

[Tr. at 79] He testified that although Respondent had been fishing outside the bar that 

morning, at the time of the capsizing, his vessel was inside the bar. [Tr. at 126-127. 132] 

He further testified that Respondent s vessel should not have been in that location 

because the area was restricted at that time. [Tr. at 126-127, 132] BM I Spears stated 

10 
HOWELL NO. 2654 

that when he saw Respondent navigate the first large wave. he did not have time to radio 

the TED'S and ··was already clipping in and had my belt on" (preparing to get 

underway). [Tr. at 106] His testimony was that, after seeing the TED'S take the first 

wave. he prepared to get underway in order to approach the vessel and tell the 

Respondent to leave the area [Tr. at 106. I 13, 132, 136] As 1 have already noted, I 

have held in the past that a finding of fact that is well-supported by the evidence should 

not be disturbed. Appeal Decision 2279 (LEWIS). As a rcsu1t, because there is 

substantial evidence in the record to support a conclusion that the ALJ's Finding of Fact 

number 21 is well-supported by the evidence, l will not disturb that finding OD appeal. 

D. Finding of Fact No. 23 

Respondent contends that the evidence does not support the AU's finding that the 

Respondent ''does not believe in wearing them [life preservers] or instructing his 

passengers to do so." [D&O at 7, finding of fact no. 23) He further contends that the 

finding was a matter of "personal bias" on the part of the ALJ. [Brief of Appellant at 6] 

I do not find Respondent's argument's with respect to Finding of Fact number 23 

to be persuasive. The record is replete with evidence to support the ALJ's finding 

regarding Respondent's opinions on life preservers, all in the form of Respondent's own 

statements OD the subject. [LO. Exhibits 8 and 13; Tr. at 195-199: see also, Tr. at 180-

181, 219. 225-226] indeed, while being cross-examined as to his views on the topic11 
HOWELL NO. 1654 

views that were discussed in a newspaper article examining the aftennath of the 

incident3-Rcspondent testified as follows: 

Q. \Vhat I was trying lo address with the statemenl in paragraph 4 of Mr. 

Apalategurs affidavit.a is why you would make a statement such as that after 

the experience that you had been through with -

A. l made that for one reason. I made it for the reason that not wearing a life 

preserver probably saved my life. 

r think it would be a whole lot better if all the people practiced more 

expertise in swimming. That's the statement l was trying to make. 

When these seas are traveling at 25 miles an hour and they're 5 to 6 foot 

with white water on them, the battling and roughing up you take, I figure that 

was problematic in the drowning of the two people that I had. 

Q. So you think if they had been better swimmers, they would have lived? 

A. I think they would have had a far better chance. 

[Tr. at l 97-199) As a result, I believe that Finding of Fact number 23 is wcl I-supported 

by the evidence and should not be disturbed. Appeal Decision 2279 CLEWIS). 

TT. 

The Al.J's Finding ofrczct and Conclusion of Law No. 4 is not supported by substantial 

evidence and/or is not in accord ·with applicable lcn-v. precedent and public policy. 

In his D&O. the ALJ stated, in finding off act and Conclusion of Law No. 4, as 

follows: 

3 See 1.0. Exhibit 8 (Eric Apalategui, Report clearsfishing guide of neglige11ce, Washington Daily News, 

February 25. 2003) (stating: "Although the [Coast Guard] repon said that wearing a Life jackeL greatly 

increases the chance of survival in a boating accident, Howell remained unpersuaded: "1 've fished for 60 

years on the high seas and rve never worn one. They're uncomfonable. They're big and cumbersome." 

The article concluded that "Howell said he continues to guide angler.; off Tillamook Bay and elsewhere 

with his remaining boats. He still doe::.'Tl 't wear a life jackeL himself. Nor does he require or suggest that 

his customers wear life jackets in most situations.") 

12 
HOWELL NO. 2654 

[t]he Respondent had and appears to continue to have a cavalier approach 

to safety orientation together with an unusually idiosyncratic view about 

the use of life preservers which demonstrated to me that Respondent's 

service in an uninspccted passenger vessel would constitute a definite 

danger to public health, interest or safety at sea. 

Respondent ar.s>ues that his violation of the re,gulations consisted solely of failing 

to post an Emergency Checkoff List, rendering him in violation of both 46 C.F.R. §§ 

26.03-2 and l. He asserts that he was, however, in compliance with the latter regulation, 

which requires a passenger safety orientation, except to the extent that he did not acquaint 

the passengers with an Emergency Checkoff List. On the same bases that suppo1is the 

ALJ's finding of fact number 7 as discussed above, I do not accept these assertions. 

Furthermore, Respondent is not aided in his appeal by his attempt to parse the elements 

of the safety orientation required by regulation. Respondent's argument comparing the 

elements that he did not violate to those he did is without merit. The regulation in its 

entirety is intended to promote safety with a view towards preventing the type of events 

that gave rise to this case. 

Respondent additionally takes issue with the ALJ's conclusion on the grounds 

that: he now posts the Checkoff List; he has many years experience; he has fished the 

Tillamook Bay for many years without incident; he only received one prior citation, 

which was dismissed after prompt correction of the violation; and p1ior to the incident in 

question, he rescued fishermen whose boat had capsized near the same location. Even 

assuming that these contentions are factually co1Tect, they are not determinative of the 

ultimate finding of fact and conclusion oflaw reached by the ALJ, which is supported by 

separate and additional facts in evidence. 

4 See I.O. Exhibit 13 (Affadavit of Mr. Eric Apalategui) (Quoting Respondent as stating that he's "never 

worn" life preservers because "[t]hey're uncomfortable" and " [t]hey're big and cumbersome." In addition, 

13 
HOWELL NO. 2654 

Respondent admitted that he had carelessly viewed his obligation to be aware of 

Coast Guard safety regulations in the past. [Tr. at 225) He was the only survivor of the 

capsizing and the onJy one of the three persons thrown into the water to have gotten hold 

of a lifo preserver after the capsizing. Yet, he still does not wear a life preserver, nor 

does be require or suggest that his customers wear life preservers in most situations. 

[Tr. at 196; I.O. Exhibit 8 and 13] Respondent believes that a person's expertise in 

swimming is a superior means of boating safety to life preservers. [Tr. at 197-199] He 

believes that one survives an incident like the capsizing by going underwater. [Tr. at 

198) He believed the victims wouJd have had a better chance of surviving if they bad 

been better swinuners, although he did not know their level of swimming skills. [Tr. at 

197-199, 225-226] 

The trier of fact, by virtue of his unique opportunity to observe witnesses and 

weigh their testimony. is assigned the duty of assessing the evidence adduced and making 

credibility determinations. Appeal Decision 2279 (LEWIS). His conclusions on the 

weight to be given any particular evidence and ultimate findings of fact deserve a degree 

of deference. Appeal Decision 2214 (CHRISTENSEN). The evidence was sufficient to 

support the ALJ's conclusion that the Respondent had a cavalier approach to assuring his 

passengers were oriented to safety matters and equipment, and that he had an 

idiosyncratic bias against life preservers. These findings were not arbitrary. capricious, 

clearly erroneous, or based on inherently incredible evidence; thus, there is no basis for 

disturbing them. Appeal Decision 2584 (SHAKESPEARE). 

Mr. Apalat.egui stated lhat Respondent does not think he '·committed any errors" in the incident. 

14 
HOWELL NO. 2654 

11 I. 

The ALI abused his discretion in ordering the revocation of Respo11de111 's license as the 

sancrionfor violating 46 C.F.R. § 16.03-1 and ./6 C.F.R. § 26.03-2. 

Respondent contends that the AU abused his discretion in dctennining that 

revocation was the appropriate sanction in this case. He specifically complains that the 

ALJ did not adopt the suggested range of order contained in 46 C.F.R. § 5.569 with 

respect to failure to comply with U.S. Jaw or regulations (suspension of one to three 

months) or failure to perfonn duties related to vessel safety (three to six months). He 

argues that, in his written decision, the ALJ incorrectly stated: "Consultation with the 

Table of Suggested Range of Appropriate Orders, 46 C.F.R. §5.569 is not helpful since it 

docs not provide any suggestion for a violation of rules and regulations." [Brief of 

Appellant at 9: D&O at 9] I do not find Respondent's final assertion of error to be 

persuasive. 

The selection of an appropriate order is the responsibility of the AU, who has 

wide discretion as to the choice of the appropriate sanction. See 46 C.F.R. § 5.569(a); 

Appeal Decisions 2640 (PASSARO), 2609 (DOMANGUE), 2618 (SINN), and 2543 

(SHORT). While the ALJ may look to the Suggested Range of an Appropriate Order 

Table, 46 C.F.R. Table 5.569, for information and guidance with respect to a particular 

violation, he is not required to do so, and he may increase or decrease the suggested 

sanction as he sees fit. 46 C.F.R. § 5.569~ Appeal Decisions 2640 (PASSARO) and 2618 

(SINN). To that end, I have long held that an AU's order will only be modified on 

appeal if it is clearly excessive or an abuse of discretion. Appeal Decisions 2640 

(PASSARO), 2422 (GIBBONS), 2391 CSTUMES), 2362 (ARNOLD), 2313 (STAPLES), 

2256 CBURKE) and 2245 (MA THIS ON). 

15 
IIOWELL NO. 2654 

ln this case, the record shows that the A LJ gave thoughtful consideration to the 

evidence and applied the factors, as set forth in 46 C.F.R. § 5.569, which may affect the 

order: ( 1) remedial actions which have been undertaken independently by the respondent: 

(2) prior record of the respondent; and (3) evidence of mitigation or aggravation. Indeed, 

the record shows that the ALJ specifically acknowledged those factors favorable to the 

Respondent, as well as those to the contrary in reaching his decision. [D&O at 1 O] 

Based on the Findings of Fact, as supported by the evidence, the ALJ concluded that 

Respondent's attitude toward safety, along with his idiosyncratic belief that life 

preservers serve no useful function in the kinds of hazards encountered in the Tillamook 

Bay area, posed adverse implications for safety at sea 

l may only reverse the ALJ's decision if his findings are arbitrary, capricious, 

clearly erroneous, or based on inherently incredible evidence. Appeal Decisions 2584 

(SHAKESPEARE), 2581(DRIGGERS),2570 CHARRJS), a.ff'NTSB Order No. EM-182 

( 1996), 2474 (CARMIENK.E), 2390 (PURSER), 2363 (MANN), 2344 (KOHAJDA), and 

2333 (A Y AL./\). Since there is ample evidence in the record to support the ALJ's 

conclusion in this regard, including the fact that two persons lost their li ves due-in large 

part- to Respondent's cavalier attitude towards safety, r find that the ALJ did not abuse 

his discretion in ordering revocation on those grounds. 

CONCLUSION 

The actions of the AU had a legally sufficient basis and his decision was not 

arbitrary, capricious, or clearly erroneous. Competent, reliable, probative, and substantial 

evidence existed to support the findings and order of the Administrative Law Judge. 

Therefore, I find Respondent's bases of appeal to be without merit. 

16 
HOWELL NO. 2654 

ORDER 

The Decision and Order of t.'1~ve Law Judge is AFFIRMED. 

J . I . ) TERRY M er-'"'~--~ / ~ ~ ce Ad ..... U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C., this~day of (/../'~2005.