UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY. 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs 

THEODORE DALE HOWELL 

Respondent 

Docket Number CG S&R 03-0178 

CG Case No. PA 1750401 

DECISION AND ORDER 

Issued: July 23, 2003 

Issued by: Edwin M. Bladen, Administrative Law Judge 

Appearances: 

For the Coast Guard 

L T Anthony Sellers, 

L T Marianne Gelakoska, 

LTJG Belana Audirsch, 

Marine Safety Office, 

6767 N. Basin Ave 

Portland, OR 97217 

For the Respondent 

Craig W. Weston, Esq. 

Reitsch & Weston, P.L.L.C 

1408 16th Ave. 

P.O. Box250 

Longview, W A 98632 
PRELIMINARY STATEMENT 

The Coast Guard filed a complaint on March 11, 2003 in which it was alleged that 

Respondent while serving as an operator of an Uninspected Passenger Vessel (UPV) 

violated the laws and regulations (1) 46 CFR 26.03-1 by not conducting a safety 

orientation prior to getting underway with 2 passengers for hire, and (2) 46 CFR 26.03-2 

by not ensuring that an emergency check .off list was posted in a conspicuous place for 

passengers on board the uninspected passenger vessel TED'S. The Coast Guard has 

requested that Respondent's operator's license be revoked. 

Respondent through his attorney answered the complaint in which he demanded a 

hearing on the sanction to be imposed, admitted the jurisdiction of the Coast Guard, and 

all the factual allegations. See, Answer, March 21, 2003. 

A hearing was set for May 28, 2003 at the Marine Safety Office, Portland, OR. 

The parties appeared at the hearing and agreed that in light of the Respondent's 

admission of the factual allegations and the violations as alleged in the complaint the 

hearing should be limited to testimony and exhibits related to the sanction to be imposed, 

including any mitigating and aggravating factors. 

The hearing was convened and as required by 46 CFR 5.52l(a) Respondent was 

requested to present his license for verification. I-Ie informed this Judge he only had a 

photo copy and must have lost it. Thus, he was unable to produce the original license for 

verification. A form CG-4363 [lost document affidavit] was executed by the Respondent. 

At the conclusion of the testimony and admission of the documentary materials 

the parties waived any filing of proposed findings of facts and conclusions of law as 

Decision and Order- 2 
provided in the Administrative Procedures Act, and instead agreed to make oral closing 

arguments and thus rely upon the developed record. At the conclusion of oral arguments 

the record was closed, and a transcript of the proceedings was ordered to assist this Judge 

in rendering a decision and order on the sanction to be imposed. 

One ex- parte communication was attempted by the Respondent with the judge 

during the course of this proceeding'. On June 16, 2003, Respondent sent to this judge a 

typewritten statement from a third person apparently in an effort to supplement the record 

with what was assumed to be mitigating evidence. The communication was viewed as an 

ex-parte communication and was returned to Respondent's counsel by letter of June 16, 

2003 with a copy to the Coast Guard representative. Respondent's counsel was informed 

this judge had not reviewed, or considered that document as any further mitigating 

evidence in this matter since the record was closed on May 28, 2003. 

A transcript was prepared and received on July 14, 2003. Thus, from a 

consideration of the transcript, the oral testimony, and a reading ofthe documentary 

material the record is now complete and ripe for a decision and order regarding the 

sanction to be imposed. 

FINDINGS OF FACT2 

1. Respondent's license as an Operator of uninspected passenger vessels as defined 

in 46 USC 21 02( 42B) upon or near coastal waters not to exceed 100 miles 

offshore was renewed on February 13,2001. The license carries an endorsement 

1 See, 5 USC§ 557(d)(l)(C). 2 Respondent has admitted all of the well pled factual allegations in the complaint. 

Decision and Order- 3 
that Respondent wear corrective lenses with spare glasses carried on board? He 

has been so licensed since 1991.4 

2. Respondent is the owner of an uninspected 25 foot passenger and fishing vessel 

named TED'S with registration number WN2966ML. 5 It was custom built in 

1989 with an open aluminum hull and a deep vee design, but recently had ballast 

weight installed in the forward part of the vessel to improve its trim. The ballast 

was comprised of two 45 pound weights one on the port and one on the starboard 

sides.6 It has a 25 HP outboard motor and a 15 HP trolling motor, two fish finders 

and an automatic pilot. 7 It operates as a commercial charter sports fishing vessel. 

3. Respondent has been a commercial fisherman, and guiding fishing for 

approximately 35 years and for the preceding 15 years has fished for salmon in 

and about the Tillamook Bay area off the Coast of the State of Oregon.8 

4. On May 18,2002 at about 5:15AM PDT the vessel TED'S left the Garibaldi Old 

Mill Marina with Respondent and two passengers for the purposes of a two day 

fi l . . 9 IS 1111g trtp. 

5. Both passengers appeared to Respondent to be experienced fishermen in the 

Tillamook Bay area and each owned power boats. 10 

6. One passenger, a Mr. Davies appeared to Respondent to be concerned about life 

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

preservers on board their own power boats that he had on the TED'S. 11 

'Coast Guard Exhibit 2 4 Coast Guard Exhibit I 5 Coast Guard Exhibit 4 6 Coast Guard Exhibit 5 7 Coast Guard Exhibit 4; Transcript 5/28/03 p. 169 8 Coast Guard Exhibit 5; Transcript 5/28/03, p. 165. 9 Coast Guard Exhibit 7 [Respondent's handwritten statement] 

Decision and Order- 4 
7. Respondent has not, prior to getting underway on a fishing trip, regularly given a 

safety orientation, as required by 46 CFR 26.03-1, nor has he posted on board the 

TED'S any emergency instructions, as specified in46 CFR 26.03-2, but on this 

fishing trip he did discuss with the two passengers the locations of the life 

preservers, fire extinguishers, electronic gear.

12 

8. The vessel had on board, seven (7) Coast Guard approved life jackets stored in a 

tower above the center console. 13 

9. The National Weather Service Coastal Weather Forecast for May 18,2002 was 

for a West swell of 8 to 9 feet, subsiding to 7 to 8 feet with periods of 11 to 13 

seconds. These forecasts cover the coastal waters from Cape Shoalwater, 

Washington to Florence, Oregon. 14 

10. Respondent was aware of the weather forecasts and tide predictions for May 18, 

2002. 15 

11. On the morning of May 18, 2002 at 4:33 AM PDT a motor lifeboat from Coast 

Guard Station Tillamook Bay conducted a "first light" bar report, and later 

broadcast it over channels 16 and 22. The report recommended to leave the bar 

unrestricted and open to all vessels. 16 

12. The "bar" is an area between the north and south jetties at Kincheloe PT and in 

Tillamook Bay, Pacific Ocean along the Coast of0regon. 17 

10 Transcript 5/28/03 p. 174 11 Transcript 5/28/03 p. 175 12 Coast Guard Exhibit 5 [Incident Investigation Report]; Transcript 5/28/03 at p.l75 13 Coast Guard Exhibit 5 14 Coast Guard Exhibit 5 15 Coast Guard Exhibit 5. 16 Coast Guard Exhibit 5. 17 Coast Guard Exhibit 12 [Portion ofNOAA Chart 18558] 

Decision and Order- 5 
13. Another bar report was made at 6:18 AM PDT with waves of 4-6 feet between 

jetty tips, 4-6 feet in the area just beyond the jetty tips, 6-8 feet on the series with 

a long ocean swell, and 4-6 feet at the south hole. The bar remained 

unrestricted. 18 

14. Respondent together with his passengers crossed the bar at approximately 6:00 

AM PDT which then had no restrictions. 19 

15. Continuing bar reports were conducted and at 7: 15 AM a deteriorating bar report 

was broadcast on VHF channels 16 and 22, together with a Coast Guard 4 7 foot 

motor lifeboat being sent out to patrol the bar. The rough bar warning light was 

activated.20 

16. Respondent was monitoring VHF channel 16 and heard these bar reports? 1 

17. Respondent started fishing off the tip ofthe South Jetty working the area to the 

South, back and forth. 22 

18. From the time of entering the Pacific Ocean, Respondent navigated the vessel 

trolling for Salmon in the area South ofthe South Jetty and in 30-45 foot water 

with 1 0-15 foot swells. 23 

19. At about 11:50 AM PDT on May 18, 2002 the vessel encountered a 10 foot 

wave about 100 yards away showing indications of 5-6 feet of "white" water. 

Respondent navigated the vessel over the top of the wave. A second fast moving 

wave, about 12-14 feet high followed, and when attempting to maneuver over 

18 Coast Guard Exhibit 5. 19 Coast Guard Exhibit 5; Transcript 5/28/03 at p. 175. 2

° Coast Guard Exhibit 5. 21 Coast Guard Exhibit 5; 22 Transcript 5/28/03 at p. 176 23 Coast Guard Exhibit 7, p 5 of8.; Coast Guard Exhibit 5, and 6 [Statement of BM I Speer]; Transcript 

5/28/03 at p. 176-177. 

Decision and Order- 6 
this wave the vessel was capsized throwing all passengers and Respondent into 

the water. The capsizing occurred approximately at 12:00 Noon PDT.24 · 

20. The tide and wave conditions encountered by the UPV on May 18, 2002 were not 

abnormal, and a series of large waves are observed and recorded regularly in this 

area of Tillamook Bay. This area is known for breaking surf on an ebb tide. 25 

21. The Coast Guard lifeboat was nearby and observed the UPV taking large waves 

and was in the process of coming to it in order to orally instruct them to leave the 

area, which enabled the Coast Guard crew to promptly respond and recover all 

three persons, however, only Respondent survived?6 

22. Neither of the two passengers, nor was Respondent wearing life preservers when 

thrown into the water. One passenger, Mr. Campbell was clutching a cooler. 

However, Respondent was able to grab a life preserver and when recovered by the 

Coast Guard he was clutching that pre.serverP 

23. Respondent claims that a "life preserver is not the only solution on big high sea 

breaks", and are of little value and does not believe in wearing them or instructing 

his passengers to do so.

28 

24. Since this incident Respondent has posted an Emergency Check-Off List, 

conducted safety orientations, including location of life preservers, the method of 

putting them on and taking them off, and type and location of other life saving 

devises on the fishing vesse1. 29 

24 Coast Guard Exhibit 3 [CG-2692], 5, and 7; Transcript 5/28/03 at pp 179-180. 25 Coast Guard Exhibit 5. 2

<> Coast Guard Exhibit 5. 27 Coast Guard Exhibit 8 [The Daily News story of February 25, 2003]; Transcript 5/28/03 at p.l82. 28 Transcript 5/28/03 at p. 181 29 Transcript 5/28/03 pp 183- 184. 

Decision and Order- 7 
ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW · 

1. The Coast Guard has jurisdiction of this matter. Respondent was acting under and 

pursuant to the authority of his license when he guided and took two passengers 

out into Tillamook Bay for fishing. Respondent has also admitted the Coast 

Guard's jurisdiction in this matter. 

2. Respondent has violated 46 CFR 26.03-1 and 46 CFR 26.03-2 by failing to 

conduct a safety orientation prior to embarking on the fishing trip on May 18, 

2002 and failing to post safety instructions on the UPV TED'S. 

3. The allegations of violation law and regulation are thus found proved. 

4. At the closing of the record, as provided by 46 CFR 5.521 (b) a prima facie case 

was established by reason ofthe admissions of Respondent together with the 

testimony and exhibits presented at the hearing which showed Respondent had 

and appears to continue to have a cavalier approach to safety orientations together 

with an unusually idiosyncratic view about the use of life preservers which 

demonstrated to me that Respondent's service on an uninspected passenger vessel 

would constitute a definite danger to public health, interest or safety at sea. Thus, 

his license was not returned to him during the pendency of the written Decision 

and Order. 

DISCUSSION 

Respondent has admitted that he has violated the cited regulations. There is no dispute 

on that score. The question before me has thus come down to what sanction should be 

imposed? The Coast Guard says that his license should be revoked because of his cavalier 

attitude toward safety orientations, and his unusually idiosyncratic and abiding belief that 

Decision and Order- 8 
lifejackets are without value. Of significance, this incident resulted in the unfortunate death 

of two passengers, neither wearing life preservers. 

The Respondent, however, says that he was not found negligent and indeed has not been 

so charged. His failures to conduct the safety orientation and post emergency instructions 

are minor violations which should only carry a one or two month suspension. 

Two people died, in my view, likely because they were not wearing lifejackets. This 

capsizing was in an area known generally, and particularly to Respondent, for its surging 

surf and wave conditions. Respondent's knowledge of the area and the usual difficult surf 

conditions is obvious from his many years of guiding others in the area. 

The utility and life saving properties oflifejackets is so well known that I feel very 

comfortable in recognizing that as a given fact. Yet, people, choose for whatever reason to 

ignore that and Respondent in particular allow them to board small vessels like TED'S and 

go to sea in an area which is known for breaking surf and high waves without safety 

orientation. 

Consultation with the Table of Suggested Range of Appropriate Orders, 46 CFR 

§ 5.569 is not helpful since it does not provide any suggestion for a violation of rules and 

regulations. The rule does allow me to take into consideration mitigating and aggravating 

circumstances. 

Are the deaths ofthe two passengers taken together with the Respondent's long standing 

cavalier approach to safety orientations, and idiosyncratic view of the utility oflifejackets 

such aggravating circumstances to justifY a revocation as the TO requests? 

Decision and Order- 9 
Is Respondent's claim of posting an emergency check list, giving safety orientations, 

showing location of life jackets, fire extinguishers and other safety equipment remedial 

actions undertaken by him since the incident which justify a lessening of any sanction? 

I have considered both the aggravating and mitigating circumstances presented. The 

aggravating circumstances of Respondent's cavalier attitude toward safety orientations, and 

his long standing idiosyncratic belief that life preservers serve no useful function in the 

kinds of surf and waves encountered in the Tillamook Bay area outweigh the mitigation 

presented by Respondent. 

In my view the Respondent's attitudes and beliefs orient his conduct and thus have 

serious adverse implications for the safety of life at sea. 

Respondent, of course, contends the request for revocation of his license is too severe a 

sanction. The regulations governing this proceeding provide that the Administrative Law 

Judge may consider "evidence of mitigation or aggravation." 46 CPR 5.569(b)(3). 

Aggravation is not defined in the regulations, but the amount of injury, damage or potential 

deaths occurring may properly be considered as a matter in aggravation. This is not to say 

these factors are determinative of the proper order; they are merely factors to consider. See, 

Appeal Decision 2455 (Wardell); Appeal Decision 2486 (Van Goetz); Appeal Decision 

2226 (Davis); Appeal Decision 2539 (Harrison); Appeal Decision (Mark E. Davis). I have 

considered the deaths along with the attitude of Respondent toward the safety orientation 

and his apparent clean disciplinary record of over 35 years together with his 

cooperation with the Coast Guard where he cancelled fishing trips afta- being told in an 

informal inspection of a cracked life ring and the need to replace outdated lifejackets 0 

30 Transcript 5/28/03 at pp. 167-168. 

Decision and Order- I 0 
Respondent's view ofthe utility oflifejackets suggests to me that he has lifejackets on 

board his charter fishing vessel as a tolerated nuisance. I also see his idiosyncratic view 

contributing to his historical avoidance of the safety orientation requirements. The irony in 

all of this is shown by the fact that when Respondent was plucked from the surging waves 

and surf he was clinging to a life preserver. 

For all these reasons a sanction other than a mere one to two month suspension is 

appropriate. 

SANCTION 

This administrative proceeding has as its dominant purpose to maintain standards of 

competence and conduct essential to the promotion of safety at sea. 5 CFR §5.5. Those 

policies are not fostered and respected by Respondent's cavalier approach to safety 

orientations and an unusually idiosyncratic view oflife preservers. Revocation is an 

appropriate sanction in such circumstances. 

ORDER 

IT IS THEREFORE ORDERED Respondent's license is REVOKED. 

NOTICE OF APPEAL RIGHTS 

You have a right to appeal this Decision and Order by filing a notice of appeal with 

the U.S. Coast Guard Administrative Law Judge Docketing Center, Attention: Hearing 

Docket Clerk, Room 412,40 S. Gay Street, Baltimore, MD 21201-4022, within 30 days of 

the issuance date ofthis decision. See, 33 CFR § 20.1001 et seq.; 46 CFR § 5.701 et seq .. 

Dated: July 23, 2003 

Edwin M Bladen 

Administrative Law Judge 

Decision and Order- II 
ATTACHMENTS 

Witnesses 

1. BM-1 Kevin Speer 

2. Lt. John Ditmar 

3. Respondent Theodore Dale Howell 

Coast Guard Exhibits 

1. Application for Respondent's Operator Coast Guard License dated February 4, 

1991, 

2. Coast Guard Operators License Number 905960 

3. Coast Guard Form CG-2692 

4. Coast Guard Situation Report 

5. Investigating Officer's Statement 

6. Copies of Four Coast Guard Rescue Crews' written statements 

7. Respondent's written statement 

8. Longview Daily New Article February 25, 2003 

9. Coast Guard Boarding Report May 25, 2001 

1 0. Coast Guard Operator Licensing Test for un-Inspected towing Vessels 

11. Oregon Marine Board Website Description of Tillamook Bay, Oregon 

12. National Oceanic and Atmospheric Administration Chart #18558 with hand 

written notations 

13. Sworn Affidavit from Eric Apalategui, Reporter for the Longview Daily News 

14. Coat Guard form CO 4380-A Log Remark Sheet for Saturday May 18,2002 for 

Station Tillamook Bay 

Respondent's Exhibits 

A. Photograph of Respondent's fishing boat view from stern with outlay of 

electronics when new. 

B Photograph of Respondent's fishing boat showing location of electronics, life 

ring, location of life preservers and placement of seating 

Decision and Order- 12 
Certificate of Service 

I hereby certify that I have this day delivered foregoing Order upon the following parties 

and limited participants (or designated representatives) in this proceeding, at the address 

indicated as follows: 

Marine Safety Office, Portland 

Attn: L T Sellers, L T Gelakoska and LTJG Audirsch 

6767 North Basin Avenue 

Portland, OR 97217 

(Gov't Federal Express) 

Mr. Craig Weston 

Attorney for Respondent 

1408 16111 Avenue 

Longview, W A 98632 

(Gov't Federal Express) 

Dated at Seattle, WA this 21st of July, 2003. 

Decision and Order- 13 

MARY 

'·~~ IWFEER~ Paralegal Specialist to 

Administrative Law Judge 
33 CFR PART 20- APPEALS 

SUBPART J 

§ 20.1001 -General 

(a) Any party may appeal the ALJ's decision by filing a notice of Appeal. The pmiy shall file the notice 

with the U.S. Coast Guard Administrative Law Judge Docketing Center, Attention: Hearing Docket 

Clerk, Room 412,40 S. Gay Street, Baltimore, MD 21201-4022. The party shall file the notice thirty 

(30) days or less after issuance of the decision and shall serve a copy of it on the other party and each 

interested person. 

(b) No party may appeal except on the following issues: (I) Whether each finding of fact is supported by 

substantial evidence. (2) Whether such conclusion of law accords with applicable law, precedent, 

and public policy. (3) Whether the ALJ abused his or her discretion. ( 4) The ALJ's denial of a 

motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no hearing was held or 

that in the issuance of the decision the ALJ did not consider evidence that that person would have 

presented. 

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

§ 20. 1002 - Records on Appeal 

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

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

then,- (I) Ifthe hearing was recorded at Federal expense, the Coast Guard will provide the 

transcript on payment of the fees prescribed in 49 CFR 7.45; but, (2) If the hearing was recorded by 

a Federal contractor, the contractor will provide the transcript on the terms prescribed in 49 CFR 7.45. 

§ 20. 1003 - Procedures for Appeal 

(a) Each party appealing the AL.J's decision or ruling shall file an appellate brief with the Commandant at 

the following address: U.S. Coast Guard Administrative Law Judge Docketing Center, Attention: 

Hearing Docket Clerk, Room 412, 40 S. Gay Street, Baltimore, MD 21201-4022 and shall serve a 

copy of the brief on every other party. (I) The appellate brief must set forth the appellant's specific 

objections to the decision or ruling. The brief must set forth, in detail, the- (i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and (iii) Relief requested in the appeal. 

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

specifically refer .to the pertinent parts of the record. (3) The appellate brief must reach the Docketing 

Center sixty (60) days or less after service of the ALJ's decision. Unless filed within this time, or 

within another time period authorized in writing by the Docketing Center, the brief will be untimely. 

(b) Any party may file a reply brief with the Docketing Center thirty-five (35) days or less after service of 

the appellate brief. Each such party shall serve a copy on every other party. If the party filing the 

reply brief rei ies on evidence contained in the record. for the appeal, that brief must specifically refer 

to the pertinent parts of the record. 

(c) No party mail file more than one appellate brief or reply brief, unless - (I) The party has petitioned 

the Commandant in writing; and (2) The Commandant has granted leave to file an added brief, in 

which event the Commandant will allow a reasonable time for the patiy to file that brief. 

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of an ALJ's 

decision. 

ATTACHMENT A