UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

DONALD NIHIPALI, 

Respondent. 

Docket Number CO S&R 01-024 7 

CO Case No. PA1000440 

DECISION AND ORDER 

Issued: September 26, 2002 

Issued by: Thomas E. McElligott, Administrative Law Judge 

APPEARANCES: 

FOR THE U.S. COAST GUARD 

LCDR Craig A. Petersen, 

LTJG James Stellflug, and 

BM1 Tony Leiato 

United States Coast Guard 

Marine Safety Office 

433 Ala Moana Boulevard 

Honolulu, Hawaii 96813 

FOR THE RESPONDENT 

Robert Frame, Esquire and 

Randall Geuy, Esquire 

Frame, Formby & O'Kane 

547 Halekauwila Street, Suite 119 

Honolulu, Hawaii 96813 
I. PRELIMINARY STATEMENT 

The United States Coast Guard Investigating Officers (lOs) initiated this 

administrative action against License Number 779470 issued to the captioned Respondent 

Donald Nihipali. This administrative action was brought pursuant to the legal authority 

contained in 46 U.S.C. Chapter 77, including 7703 and its underlying regulations codified 

at 46 C.F.R. Part 5, and 33 C.F.R. Part 20. The Coast Guard issued a Complaint on or 

about April6, 2001, which was then served personally on Respondent. It charged 

Respondent Nihipali with a total of four (4) counts, including Misconduct, Negligence, 

and two (2) counts ofViolation of Law or Regulation. It resulted from a close quarters 

situation created by Respondent (R) between R's motorized tour boat, the MANA 0 

KALAN! (hereinafter usually "MANA"), operated and maneuvered by Respondent, and 

a kayak on the Wailua River, Island ofKauai, Hawaii, containing three members of the 

Webb family from Riverbank, California. 

The Misconduct charge against Respondent Nihipali is supported by two (2) factual 

allegations, which read as follows: 

1. The Coast Guard alleges that on December 21, 2000 at approximately 12:35 PM, 

while operating the vessel MANA 0 KALAN! on the Wailua River, the 

Respondent wrongfully assaulted Darren, Evelyn and Xavier Webb by 

maneuvering the MANA 0 KALAN! towards the kayak carrying the Webb 

family. 

2. As a result of the Respondent's actions, the Webb family feared that the MANA 

0 KALAN! would collide with their kayak and cause bodily harm. 

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The additional Negligence charge against Respondent Nihipali is supported by one 

(1) factual allegation, which reads as follows: 

1. The Coast Guard alleges that on December 21, 2000 at approximately 12:35 PM, 

while operating the vessel MANA 0 KALANU on the Wailua River, the 

Respondent knowingly and willfully turned the MANA 0 KALAN! toward a 

kayak carrying Darren, Evelyn, and Xavier so as to endanger the Webb family. 

The first violation oflaw or regulation charge or count against Respondent Nihipali is 

supported by one (1) factual allegation, which reads as follows: 

1. The Coast Guard alleges that on December 21, 2000 at approximately 12:35 PM, 

while operating the vessel MANA 0 KALAN! on the Wailua River, the 

Respondent neglected to comply with the Inland Navigation Rules by turning the 

MANA 0 KALAN! around, navigating toward the self-propelled kayak carrying 

the Webb family, and creating a close quarters situation with said kayak, a 

violation of33 U.S.C. 1602, Rule 2- Responsibility (commonly known as the 

rule of good seamanship). 

The additional second violation of law or regulation charge or count against 

Respondent Nihipali is supported by one (1) factual allegation, which reads as follows: 

1. The Coast Guard alleges that on December 21, 2000 at approximately 12:35 PM, 

while operating the vessel MANA 0 KALAN! on the Wailua River, the 

Respondent failed to navigate with due caution and failed to sound one prolonged 

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blast as he approached a bend in a narrow channel where other vessels may have 

been obscured, a violation of33 U.S.C. 1602, Rule 9(f)- Narrow Channels. 

The Respondent filed a formal written Answer to the Investigating Officer's 

(IO's) Complaint in which he admitted all jurisdictional allegations and denied all factual 

allegations. The Respondent also requested a hearing before a U.S. Administrative Law 

Judge. This case was originally assigned to Administrative Law Judge (ALJ) Parlen L. 

McKenna, stationed in Alameda, California, for its adjudication. The hearing was 

initially scheduled on May 31, 2001, in Hawaii, by Judge Parlen McKenna. 

Exactly one week before the hearing was to commence, Respondent's counsel 

filed a motion for continuance, as well as a motion for Disqualification or Recusal of 

Judge Parlen McKenna because of Judge P. McKenna's personal bias arising from the 

prior association of Respondent's attorney Robert Frame with a particular law firm in 

Honolulu, Hawaii. Following a pre-hearing conference held on May 29, 2001, Judge 

Parlen McKenna granted both Respondent's attorney's motions and disqualified himself 

as the judge from adjudicating this captioned case. 

Later on June 12, 2001, this case was reassigned to the undersigned judge for 

adjudication. The hearing was later held on November 14, 2001 in Lihue, Island of 

Kauai, Hawaii before Thomas E. McElligott, U.S. Administrative Law Judge deciding 

cases brought by the United States Coast Guard Investigating Officers and by other U.S. 

government agencies. The hearing was conducted in accordance with the U.S. 

Administrative Procedure Act, as amended and codified at 5 U.S.C. 551-559, 46 U.S.C. 

Chapter 77, and the Coast Guard procedural rules located at 33 C.F.R. Part 20 and 46 

C.F.R. Part 5, and the Inland Navigation Rules at 33 U.S. Code Sections 2001 through 

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2038, plus five Annexes; effective since about 01 March 1983; e.g., 33 U.S.C. Section 

2001 includes Rule 1, Section 2034 includes Rule 34. 

The International Navigations Rules are found at 33 U.S. Code Sections 1602 and 

following. The three relevant Rules ofNavigation referred to and discussed during this 

hearing, both International and Inland, and their paragraphs are worded exactly the same, 

i.e., Rule 2 "Responsibility," Rule 9 "Narrow Channels," and Rule 34 "Warning Signals," 

per Commandant Instruction M16672.2D, dated March 25. 1999, and 33 U.S. Code 2001 

through 2038. 

Investigating Officers Lieutenant Commander Craig A. Petersen, Lieutenant 

Junior Grade James Stellflug, and Boatswain Mate First Class Tony Leiato, then 

stationed in the Port of Honolulu, represented the United States Coast Guard at the 

hearing. Respondent Nihipali was present throughout the entire hearing accompanied 

and represented by his two attorneys, Robert Frame, Esq. and Randall Geuy, Esq. of the 

law firm of Frame, Formby & O'Kane, of Honolulu, Hawaii. 

In the Complaint served upon the Respondent and/or his attorney, the first 

violation of law or regulation, charge or count against Respondent Nihipali, is supported 

by one factual allegation quoted above. After citing the fact that Respondent Nihipali 

neglected to comply with the Inland Navigation Rules by turning the MANA 0 KALAN! 

around, navigating toward the self-propelled kayak carrying the Webb family and 

creating a close quarters situation with said kayak, a violation of Rule 2, entitled 

"Responsibility," also commonly known as the "Rule of Good Seamanship," the 

Investigating Officer then cited 33 U.S.C. 1602, Rule 2, which is the citation for the 

identical International Navigation Rule. The correct citation should have been 33 U.S.C. 

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2002, Rule 2, entitled "Responsibility." However, Rule 2 in both the Inland Navigation 

Rules and in the International Navigation Rules is worded exactly the same. 

The additional second violation oflaw or regulation cites the Rule 9(f), entitled 

"Narrow Channels Rule." This too cited factual allegations and then cited the Rule 9(f), 

entitled "Narrow Channels Rule" and again gave a citation of33 U.S.C. 1602 Rule 9(f), 

which should have been 33 U.S.C. 2009, Rule 9(f), entitled "Narrow Channels." Here 

again the wording is exactly the same in both Rules. That is, exactly the same in the 

Inland Navigation Rules as well as the International Navigation Rules. 

In addition, there was talk by the witnesses and in the hearing of Rule 34 of the 

Navigation Rules, which is entitled "Maneuvering and Warning Signals." The specific 

rule under Rule 34 that was mentioned, again is the exact same in both the Inland 

Navigation Rules and the International Navigation Rules, Rule 34(e). 

Rule 2, the Responsibility Rule, reads as follows: 

"(a) Nothing in these Rules shall exonerate any vessel, or the owner, 

master, or crew thereof, from the consequences of any neglect to comply 

with these Rules or of the neglect of any precaution which may be 

required by the ordinary practice of seamen, or by the special 

circumstances of the case. 

"(b) In construing and complying with these Rules due regard shall be had 

to all dangers of navigation and collision and to any special circumstances, 

including the limitations of the vessels involved, which may make a 

departure from these Rules necessary to avoid immediate danger." 

Rule 9(f), the Narrow Channels Rule, reads as follows: 

"A vessel nearing a bend or an area of a narrow channel or fairway where 

other vessels may be obscured by an intervening obstruction shall navigate 

with particular alertness and caution and shall sound the appropriate signal 

prescribed in Rule 34(e)." 

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Rule 34(e), Maneuvering and Warning Signals, reads as follows: 

"A vessel nearing a bend or an area of a channel or fairway where other 

vessels may be obscured by an intervening obstruction shall sound one 

prolonged blast." 

It has been held in several Commandant's Appeal Decisions that the pleadings 

may be amended to conform to the proof, such as Commandant's Appeal Decision 2630 

(BAARSVIK), decided in August 2002, and Appeal Decision 2581 (DRIGGERS). See 

also Appeal Decisions 2326 (McDERMOTT) (28 Sep 1983); 2013 (BRITTON) (13 Dec 

1974); 2309 (CONEN) (12 May 1983); Kuhn v. Civil Aeronautics Board 183 F.2d 839 

(1950), 87 U.S. App. D.C. 130, supporting the fact that the ALJ is authorized to amend 

the Complaint to conform it to the issues noticed, litigated and heard and to the proof; 

and not to be bound to the rigid formalisms of obsolescent Common Law pleading rules. 

Kuhn v. C.A.B. and Commandant's Appeal Decisions, supra. 

As is stated in Appeal Decision 2581 (DRIGGERS), Opinion, Section I, 

"Before proceeding to the merits, I find it necessary to address the 

statutory basis of the specification. Because the Appellant was charged 

with violation of law or regulation, the specification must state a specific 

statute or regulation. 46 C.P.R. section 5.33. Although the specification 

states an inland navigation rule, it incorrectly cites 33 C.P.R. Part 81, 

Appendix A, which contains the international navigation rules. The 

correct citation for the inland lookout rule is 33 U.S.C. section 2005 

('Rule 5'). 

"The fact that the specification cites the incorrect law does not constitute 

reversible error in this case. The wording of the lookout rule is identical 

for both the inland and the international rules. Compare 33 U.S. C. foil. 

section 1602 Rule 5 (International Rules) with 33 U.S.C. section 2005 

(Inland Rules). Furthermore, '[f]indings leading to an order of suspension 

or revocation of a document can be made without regard to the framing of 

the original specification as long as the Appellant has actual notice and the 

questions are litigated.' Appeal Decision 2422 (GIBBONS), citing Kuhn 

v. Civil Aeronautics Board, 183 F.2d 839 (D.C. Cir. 1950); Appeal 

Decision 1792 (PHILLIPS). The record clearly shows that the Appellant 

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understood that the substance of the charge was his failure to maintain a 

proper lookout while underway on inland waters. [Transcript (TR) Vol. I 

at 37-38; Appellant's Brief(Brief) at 6]. This is the offense that was 

actually litigated by the parties, and decided upon by the Administrative 

Law Judge, regardless of the incorrect citation in the specification. [TR 

Vol. I at 37-38; D&O at 6]." 

The conclusion of the last page of the Appeal Decision 2581 (DRIGGERS) stated, 

"As discussed in Section I of my Opinion, the specification is properly amended to cite 

33 U.S.C. section 2005 ('Rule 5')." 

Here in this case involving Respondent Nihipali, these matters were properly 

given notice and litigated throughout the hearing and I ruled upon them and both sides 

knew what the allegations were and what was being defended against so they had actual 

notice and the questions were litigated. Thus, in accordance with these Appeal 

Decisions, supra, and Kuhn v. C.A.B., supra, as well as 33 C.P.R. 20.305, amendments 

may be made to conform the citations to the proof and the evidence involved. Here, it is 

ruled that there are no consequences for the incorrect citation to the rules because the rule 

was clearly identified and how it was violated was clearly identified and litigated. As 

discussed above, the two citations in the specifications or counts are amended to read 33 

U.S.C. 2002 and 33 U.S.C. 2009(f). 

A total often (10) witnesses, including Respondent Nihipali, testified under oath 

in this hearing. At the hearing, the Coast Guard introduced its five ( 5) witnesses and four 

(4) exhibits into evidence; whereas, the Respondent introduced his five (5) witnesses and 

two (2) exhibits into evidence. The ten (10) witnesses and six (6) exhibits are listed in 

Appendix A, attached. 

On December 5, 2001, the Respondent filed Proposed Findings of Fact. Rulings 

on the Respondent's proposed findings are in Appendix B. In this case, the Investigating 

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Officers opted not to file proposed findings, but instead chose to only file a reply to the 

Respondent's proposed findings of fact. 

Respondent's Attorneys' Second Motion to Disqualify or Recuse Second Judge 

Also, on December 5, 2001, a full three weeks following the conclusion ofthe 

November 14, 2001 evidentiary hearing in this case before this ALJ, Respondent's 

attorney first filed a Motion to Disqualify or Recuse this second judge in this case again 

on the grounds of personal bias pursuant to 33 C.P.R. 20.204(b). The disqualification 

motion argues that the undersigned committed the following three acts during the hearing 

that allegedly evidences personal bias: 

(1) The ALJ identified himself as an agent of the Coast Guard; (2) the ALJ 

conducted inappropriate and argumentative cross-examination over the objection 

of Respondent's counsel; and (3) the ALJ unevenly applied his authority in favor 

of the Coast Guard. 

Succinctly stated, Respondent's attorneys belatedly claim that the undersigned exhibited 

personal bias in favor of the Coast Guard based solely on the manner in which the 

hearing was conducted. Respondent's motion dated December 5, 2001, requesting 

disqualification ofthe second Administrative Law Judge in this case is denied. See 

Commandant's Appeal Decision 2626 (DRESSER), decided February 19,2001, where 

two similar motions to disqualify the Commandant himself were denied by Commandant 

Thomas H. Collins; and the ALJ' s Decision and Order were affirmed. 

This paragraph will address Respondent's attorneys' first argument for recusal. 

The phrase, an "Administrative Law Judge of the U.S. Coast Guard" has been used as a 

phrase in many of the Commandant's Appeal Decisions. " ... an Administrative Law 

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Judge of the United States Coast Guard ... " is used in the first pages or paragraphs of the 

Commandant's Appeal Decisions 2624 (DOWNS), dated October 22, 2001; 2625 

(ROBERTSON), dated February 13, 2002; 2627 (SHAFFER), dated February 25, 2002; 

and often in many prior Appeal Decisions in the past 50 years, too numerous to mention. 

Respondent's attorneys are criticizing the use of such terms as they are and have been 

used by the Commandants and Vice Commandants in these Appeal Decisions. These 

officers are the two highest ranking admirals in the U.S. Coast Guard on active duty, at 

the time they signed these Appeal Decisions, prepared for them by the Legal Counsel of 

the U.S. Coast Guard. This judge in Respondent Nihipali's case was merely identifying 

himself to a distant witness, Mrs. Webb, testifying by telephonic conference call. This 

judge was merely identifying himself as not one of the three lOs or the two Respondent's 

attorneys, but as the judge in the case. 

As a preliminary matter, the Respondent's disqualification or recusal motion was 

not accompanied by an affidavit as is required under 33 C.P.R. 20.204(b). Instead, the 

Respondent cites to various portions of the transcript, taken out of context, for support. 

Although failure to comply with the filing requirements may form the sole basis upon 

which to deny the Respondent's motion, I decline to deny the Respondent's attorneys' 

second recusal or disqualification motion solely on those grounds. (The first 

disqualification or recusal motion was against Judge Paden L. McKenna above.) See 

Appeal Decision 2495 (ZELVICK) (affirming an ALI's denial of a disqualification 

motion that was not supported by exhibits, affidavits, or other offers of proof as required 

in accordance with Coast Guard procedural regulations). After reviewing the claims of 

Respondent's counsel and thoroughly reviewing the entire record considered as a whole, 

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including the transcript in its entirety, it is found that the factual bases alleged for support 

of recusal or disqualification of the second judge on this same case on the grounds 

alleged, including personal bias, are totally without merit. 

The Respondent's attorneys' second disqualification or recusal motion is also 

subject to denial because it is late or untimely. While Coast Guard procedural regulations 

authorize the filing of a motion for disqualification up until the issuance of the ALJ 

decision, it is incumbent on the party seeking disqualification to file the motion with the 

judge promptly upon discovery of the facts or other reasons allegedly constituting cause. 

33 C.F.R. 20.204(b). In other words, timeliness or an early motion is a vital element of 

the disqualification motion. When a party voices its misgivings in a late, tardy or dilatory 

fashion, the claimant's good faith is placed in doubt. See, Marcus v. Dir. Of Office of 

Workers' Comp. Programs, 548 F.2d 1044, 1050 (D.C. Cir. 1976). 

In this case, no objection or statement to the claimed bias or prejudice was ever 

made prior to the hearing or on the hearing record by Respondent Niphali's two attorneys 

or Respondent during the entire hearing before the undersigned judge. The motion for 

disqualification was only filed about twenty-one days later after the conclusion of the 

evidentiary hearing that was held on November 14, 2001. Under the circumstances, the 

failure of Respondent's attorney to timely or early raise an objection ofbias or prejudice 

during the hearing or trial, courts have ruled it constitutes a waiver. See above cited case 

Marcus, ofthe District of Columbia U.S. Circuit Court, 1976, supra. 

It is important to note that the mere filing by Respondent's attorneys of a claim of 

bias or prejudice under 33 C.F.R. 20.204 does not automatically result in the 

disqualification or recusal of the judge deciding the case. This is especially true when the 

11 
motion for disqualification fails to meet the requirements imposed by law. In such 

instances, the judge has an obligation not to disqualify himself unnecessarily. See 

generally Jackson v. Fort Stanton Hosp. and Training Sch., 757 F. Supp. 1231, 1240-

1243 (D. NM 1990), rev 'don other grounds 964 F.2d 980 (lOth Cir. 1992) (holding that a 

motion for disqualification filed several months after the deposition of a witness was too 

late); Cranston v. Freeman, 290 F. Supp. 785, 815-816 (N.D.N.Y. 1968), rev'd on other 

grounds sub. nom. Cranston v. Hardin, 428 F.2d 822 (1970) (holding that a motion for 

disqualification filed more than eleven months after commencement of trial was frivolous 

and was not timely). 

Even assuming that the Respondent's motion for disqualification met all of the 

legal requirements prescribed in 33 C.F.R. 20.204, the Respondent's claim of bias and 

prejudice still fails. In these proceedings, the ALJ is presumed to be impartial and not 

biased. Appeal Decision 1554 (MCMURCHIE); Schweiker v. McClure, 456 U.S. 188, 

195 (1982). The burden is on the party moving for disqualification to affirmatively show 

bias or prejudice by tendering sufficient evidence for the judge to consider whether 

proceeding in light of such evidence would create an appearance of impartiality. 

(MCMURCHIE); Appeal Decision 2495 (ZEL VICK). Frivolous and improperly based 

suggestions or claims of bias or prejudice by a party are insufficient bases for 

disqualification or recusal of a judge. Wandschneider v. Indus. Incomes, Inc., No. 87 

Civ. 6252(ELP), 1989 U.S. Dist. Lexis 5563, at *2 (S.D.N.Y. May 23, 1989). 

In reviewing a disqualification motion, the undersigned is guided by the standard 

of review enunciated in many federal court cases. The test is whether a reasonable 

person would have a factual basis upon which to doubt the impartiality of the judge under 

12 
the circumstances set forth in a party's affidavit supporting the disqualification motion. 

See generally A.J. ex rei. L.B. v. Kierst, 56 F.3d. 849, 861 (8th Cir. 1995); Parrish v. 

Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975). 

The standard for successfully demonstrating bias on the part of a judge is quite 

strict in order to prevent abuse by a party, who may otherwise use disqualification or 

recusal motions as a tool to shop for a judge who better suits that party's preference. 

Duplan Corp. v. Deering Milliken, Inc., 400 F. Supp. 497, 514 (S.D. S.C. 1975). In order 

to prevail on a recusal or disqualification motion, a party must show that the bias is 

"personal," and not judicial, in nature. Parrish, 524 F .2d at 1 00; Duplan, supra, 400 F. 

Supp. at 519 (S.D. S.C. 1975); Appeal Decision 950 (RALEIGH). Bias that will 

disqualify a judge refers to an opinion or prejudgment formed from an extra judicial 

source, i.e., information obtained outside the hearing or trial room. Duplan, supra, 400 F. 

Supp. at 516; Appeal Decision 950 (RALEIGH); Climaco v. Sullivan, 1989 U.S. Dist 

Lexis 12071, at 7 (N.D. Ill. 1989). Adverse rulings by a judge, comments made by the 

judge, and the judge's demeanor during a hearing or proceeding alone are not sufficient 

to compel disqualification. Duplan, supra, 400 F. Supp. at 514-519; A.J. ex rel L.B., 56 

F.3d at 862. 

In this case, all of the Respondent's arguments for disqualification stem from the 

manner in which the proceedings were conducted and do not evidence personal bias. As 

such, they are rejected. For example, Respondent's assertion that the ALJ acted as an 

agent for the Coast Guard by referring to the agency's exhibit as being "admitted for our 

purposes" is unpersuasive as this was a transcription mistake made by the court reporter. 

(Transcript ("Tr. ") 142). The phrase, "admitted for our purposes" should have read an 

13 
exhibit was "admitted for all purposes." It has long been well established in the law that 

the undersigned judge is authorized to correct a transcript if the transcript contains 

mistakes or errors made directly by the court reporter. See 33 C.P.R. 20.709(b). 

Next, the Respondent's allegation that the ALJ applied rulings in a disparate 

fashion using double standards is unfounded. The Respondent's counsel attempts to 

compare two very different instances during the hearing where one environmental police 

witness was allowed to refer to his own official written report about one year old while 

testifying and Respondent was not permitted to look at his attorneys' prepared statement 

for Respondent during Respondent's cross-examination. In the first instance, the 

agency's witness, a State of Hawaii environmental police officer who about one year 

before the hearing investigated the incident at hand, was allowed to refresh his 

recollection by being allowed to refer, if necessary, to his official report prepared by him 

shortly following the investigation of about one year prior. (Tr. 142). In the second 

instance, however, the Respondent, who was being questioned by LCDR Craig Petersen 

under cross-examination at the time, was being difficult, evasive and belligerent. In 

addition, Respondent's credibility was in serious question by that time. Respondent's 

attorneys had already completed their direct questioning of Respondent. Respondent had 

been present throughout the entire hearing, had heard all the other witnesses testify and 

heard all the remarks about exhibits already entered into evidence and was about the 1oth 

or last witness. In the midst ofLCDR C. A. Petersen's cross-examination, the 

Respondent's attorney suddenly interrupted and offered to give the Respondent a 

previously prepared written statement to read. (Tr. 346). Since this written statement 

was previously prepared by Respondent's counsel in anticipation oflitigation, the 

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Respondent's reading of the written statement during his cross-examination would have 

been an improper use of the document. In addition, as the Respondent's credibility was a 

serious issue, it would not be appropriate to allow him to be so brazenly coached by his 

attorneys in this fashion while Respondent was under cross-examination and still under 

oath on the witness stand. 

Similarly, the Respondent's assertion that the ALJ attempted to impeach only the 

Respondent's witnesses through hostile cross-examination and interrogation is incorrect 

and wholly without merit. In his Motion to Disqualify, the Respondent quotes limited 

sections in the hearing transcript when referring to the ALI's questioning of a witness. 

However, when the relevant testimony and sections are read in their entirety, it becomes 

clear that the witness, a hula dancer on the Respondent's tour boat at the time ofthe 

incident, and then a fellow-employee of Respondent, was being evasive. Moreover, the 

witness' credibility became an issue after she gave contradictory or false testimony. Her 

credibility was being tested when the ALJ asked whether she had spoken with the 

Respondent's counsel before testifying at the hearing. She testified twice that she 

"never" talked to them before the day of the hearing at lunch (Tr. 184). Respondent's 

attorneys had prior listed her as their witness. The witness replied that she just met the 

Respondent's attorneys for the first time on the day of the hearing at lunch and had never 

conversed with them before. As the ALJ tried to continue with this line of questioning, 

the Respondent's counsel suddenly interrupted the witness' testimony and the judge to 

state that he had in fact "contacted" her a "few weeks" before the hearing but that she 

probably did not remember it. (Tr. 185). Respondent's attorney said this well within her 

hearing. She was within about five feet from Respondent's attorney and between him 

15 
and the judge. She was seated closer to Respondent's attorney than the judge. At which 

point, the ALJ properly instructed the attorney to refrain from prompting or coaching his 

own witness, while she was being questioned under oath. Furthermore, when the ALJ 

then resumed questioning this hula dancer, she proceeded to turn away from the judge 

and ask the Respondent's attorney for assistance with her answers. Specifically, while 

still on the witness stand, she abruptly turned to the attorney and asked the Respondent's 

attorney who had said he contacted her, "Did you call me?" (Tr. 185). Because the hula 

dancer witness was seeking coaching while still on the witness stand, the judge properly 

instructed the witness to look away from Respondent's attorneys and directly at him and 

to answer his question. (Tr. 185-186). She could not recall being "contacted" by 

Respondent's attorneys "a few weeks before," but she claimed she could recall much of 

what happened on the vessel about one year before. Such testimony by her shows she is 

not a credible witness. 

Likewise, the ALJ's inquiry into the Respondent's ability to read the Inland 

Navigation Rules constitutes neither improper interrogation nor intimidation. The ALJ's 

question on this matter arose only after LCDR Craig Petersen during his crossexamination of Respondent asked the Respondent to read from the Inland Navigation 

Rules. Instead of complying with the LCDR's request, the Respondent remained silent 

for several minutes, without answering or reading from the rulebook. Respondent just 

kept looking or staring at the rulebook in his hands for several minutes without 

answering. At which point, the ALJ then asked the Respondent whether he had difficulty 

with reading. The Respondent, however, remained unresponsive, which prompted the 

ALJ to pursue his line of questioning. Upon review of the relevant sections in the 

16 
transcript, it becomes evident that the ALJ was not badgering the Respondent, but rather 

was merely inquiring into the Respondent's ability to read the Inland Navigation Rules 

and other matters. Respondent should not only be able to read them, but he is supposed 

to know and follow them as a licensed captain. 

None of the examples cited above by the Respondent provide credible evidence 

that the undersigned improperly acted as an agent for the Coast Guard. The innocuous 

or other comments that the undersigned made during the hearing, which Respondent's 

attorney has taken out of context, do not evidence any bias or prejudice. The comments, 

themselves, are innocuous, harmless and unbiased. A judge has as one of many duties to 

keep the parties and their clients and witnesses from breaking the rules, especially in the 

hearings. 

Moreover, the United States Supreme Court recognizes impartiality as a basic 

element of due process that applies in all federal administrative hearings. See Schweiker 

v. McClure, 456 U.S. 188, 195 (1982). Although I am assigned to adjudicate Coast 

Guard cases and other U.S. agencies cases, the U.S. Supreme Court acknowledges that 

the process of agency adjudication is structured so as to assure that U.S. Administrative 

Law Judges exercise independent judgment - - free from agency pressures. Butz v. 

Economou, 438 U.S. 478, 513 (1978). Id. 1 In addition, the undersigned judge's 

1 The U.S. Office of Personnel Management's Office of Administrative Law Judges recruits and selects 

candidates for ALJ positions and places them on a ranked register from which agencies obtain judges. The 

Administrative Procedure Act ("APA"), codified at 5 U.S.C. § 551-559, implicitly guarantees the 

impartiality of ALJs by establishing statutory safeguards to ensure the independence of such judges. Butz 

v. Economou, 438 U.S. at 513. Under the APA, ALJs are not "responsible to or subject to the supervision 

or direction of employees or agents engaged in the performance of investigative or prosecuting functions 

for an agency." 5 U.S.C. § 554(d)(2); Id. at 514. Moreover, ALJs are not paid, promoted, evaluated nor 

subject to discharge at the mere whim of the agency on whose behalf the judges adjudicate cases. See 5 

U.S.C. §§ 3105, 7521; see also Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 142, 

rehearingdenied345 U.S. 931 (1935). 

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questioning of witnesses and rulings were made in accordance with the duties and 

authority granted to me as an ALJ under the applicable statutes, regulations and case law, 

including the APA and Coast Guard procedural regulations. See 5 U.S.C. 556(c); 33 

C.P.R. 20.202 and 20.802. Therefore, in the absence of any supportive evidence of 

actual bias or prejudice, the Respondent's attorneys' second motion for disqualification 

or recusal ofthe second judge on the ground of personal bias is DENIED. 

Further, after careful review of the entire record considered as a whole, including 

all the facts and applicable law in this case, I find that the Investigating Officers have 

proved by a preponderance of reliable, probative, substantial and credible evidence that 

Respondent Donald Nihipali committed the charged one act of misconduct, one act of 

negligence, and two acts of violation of law or regulation on December 21, 2000 when he 

maneuvered the vessel MANA much too close and into a kayak carrying the Webb 

' 

family. In doing so, the Respondent wrongfully assaulted the three members of the Webb 

family and endangered their lives and limbs. 

II. FINDINGS OF FACT 

The Findings of Fact and Conclusions found herein are based on thorough and 

careful analysis of the documentary evidence, the testimonies of the witnesses taken 

under oath, the entire record considered as a whole and the applicable statutes, 

regulations and case law. 

1. On December 21, 2000, a close quarters situation occurred along a narrow river 

bend on the Wailua River in Kauai, Hawaii, in which a motorized tour boat, 

operated by Respondent Captain Nihipali, steered dangerously close to a kayak 

18 
' ' 

carrying two teachers, Mr. Darren Webb and Mrs. Evelyn Webb, and their threeyear-old son, Xavier Webb. (Entire Transcript and record). 

2. After considering the entire record as a whole, and carefully listening to and 

watching the witnesses who appeared at the hearing, I make findings that in 

general I find the five (5) IO's witnesses much more credible than the five (5) 

Respondent's witnesses. (Entire Transcript and record). 

3. Respondent Donald Nihipali is the holder of U.S. Coast Guard License No. 

779470. Respondent has been granted a license by the U.S. Coast Guard to 

operate motor vessels ofless than one hundred tons on the Wailua River, Island of 

Kauai, Hawaii. (Tr. 314). 

4. On the date and afternoon in question, Captain Nihipali was operating, 

maneuvering and controlling the steering of the tour boat MANA. The MANA is 

a sixty-six (66)-passenger vessel, owned by the Waialeale Boat Tours, Inc., that 

carries passengers on sightseeing excursions between the mouth of the Wailua 

River and the area of the river known as the Fern Grotto area. (Tr. 9). 

5. The tour boat MANA is approximately. fifty feet long and fourteen feet wide (55 

feet by 14 feet). It is rectangular in shape. It has a square, blunt bow 14 feet 

wide. It displaces twenty-three (23) gross tons of water and weighs about fifteen 

(15) net tons. The MANA is a powered vessel and typically cruises about eight 

knots along the Wailua River, in Kauai Island, Hawaii. (Tr. 9). 

6. The Webbs: Darren, Evelyn are two teachers and their son Xavier, were on a 

guided kayak tour, which included several kayaks on the Wailua River. (Tr. 16). 

The three Webbs were alone in one kayak. They were seated in one kayak, a 

19 
sixty-five pound self-propelled (by two paddles) plastic kayak that is 

approximately sixteen feet long, two feet wide, and sits eight to ten inches off the 

water. (Tr. 9, 76) . .1t is very much like a small canoe propelled by paddles. 

7. Before the tour began, the Webb parents received basic paddling and kayaking 

instructions from the tour guide, in which they were instructed to remain 

approximately five feet from the riverbank, staying close to the north side of the 

river both up and back down the river, and to keep out of the middle of the river 

or channel where the bigger power driven boats or vessels are supposed to travel. 

(Tr. 17, 28, 46-47, 115). These instructions were repeated by the tour guide a 

second time after lunch before the Webb family resumed the tour. (Tr.19, 48, 84, 

117). 

8. The customary rule according to the guide, practiced by kayaks only on the 

Wailua River, is to travel along and near the north bank, which entails remaining 

on the right side of the river when proceeding up river towards Fern Grotto and 

staying to the left near the north bank when heading down the river to finish the 

tour and return the rented kayaks. (Tr. 78). 

9. About halfway through the tour, the Webbs approached a slight bend or turn in 

the river that curves to the left. (Tr. 20, 88). The Webbs remained about three to 

four feet from the north bank; they were close enough to reach out their hands and 

touch the hibiscus plants and branches growing on the shoreline. (Tr. 20, 50). As 

Mr. and Mrs. Webb paddled along the north side of the curve, the MANA 

suddenly appeared about seven feet in front of them and continued to approach 

head on, while they were only about three feet from the bank. (Tr. 20, 29). 

20 
10. Another kayaker on the tour, Mr. Edward Cormode, a firefighter from San Diego, 

California on vacation like the Webbs, who was approximately fifty yards behind 

the Webbs in his own rented kayak, witnessed the Respondent's MANA make a 

U-turn in the river. As a result of the wide U-turn by Respondent, the side of the 

Respondent's vessel came into close contact with the Webb's kayak. Mr. Webb 

had to push off from Respondent's vessel with his paddle to protect his family. 

(Tr. 118-119, 134). 

11. Instead of passing the kayak, while Respondent remained in mid river or on the 

other side of the river where there was plenty of room, the Respondent's MANA 

remained in very close proximity to the Webbs, at times approximately two to 

three feet away from their kayak. (Tr. 50). 

12. When Captain Nihipali claims he first noticed the Webb family, he asserts he 

attempted to turn the MANA hard left to avoid a head on collision. As a result, 

the Webb's kayak became caught in the Respondent's vessel's wake and was 

pushed into the bank and its branches. (Tr. 115, 125). Respondent as an 

experienced captain on that river for years with those type of boats must or should 

have known this is what would result from Respondent's maneuvers so close to 

the Webb's kayak. 

13. As the MANA passed too close, Mr. Webb attempted to keep the tour boat away 

from his family and kayak by using an oar to push off the side of the vessel's hull. 

(Tr. 21, 30-31,53, 134). As a result, water may have splashed onto the MANA's 

deck, allegedly wetting some ofthe passengers aboard. (Tr. 22, 168, 190, 192). It 

21 
was also rainy and windy at the time, which could cause wetting of the MANA's 

passengers. (Tr. 20). 

14. Mr. Webb, fearing for the safety ofhis family, became irate and yelled at 

Respondent, "What are you doing? This is assault with a deadly weapon!" (Tr. 

22, 41, 51, 192). 

15. Captain Nihipali shouted back at the Webb family, including yelling at them to 

move out of Respondent's way. (Tr. 43, 56, 190, 327). 

16. Witnesses on both the MANA and the kayak tour observed both Captain Nihipali 

and Mr. Webb exchanging angry words and obscenities. (Tr. 56-57, 119-120, 

192). 

17. After the first close situation with the tour boat, the Webbs repositioned 

themselves back towards the north riverbank and continued to paddle down the 

river towards the dock. (Tr. 34, 51). 

18. Captain Nihipali placed his vessel in reverse and proceeded up the river. (Tr. 90-

92). Shortly afterwards, Respondent in the MANA suddenly made aU-turn and 

headed back downriver towards the Webbs. (Tr.22, 118-119). This time, the 

MANA, at all times controlled and steered by Respondent Nihipali, proceeded 

directly toward the Webb's kayak at a ninety-degree angle. (Tr.118-119 ). 

19. When Captain Nihipali turned the tour boat around to head back towards the 

Webbs, he did not sound the vessel's whistles or horns as he neared or 

approached the river bend or turn. (Tr.30, 48, 55, 88-89, 191, 202). This violated 

another safety rule of the Inland Navigation Rules. See below. 

22 
20. The width of the Wailua River at Taiau bend or turn is approximately sixty-six 

feet per Respondent's own admission. (Tr. 346, 348). At other areas this river is 

much wider. Respondent testified he took two (2) tour boats up or down the river 

side by side. Although the width of the river at the bend is one of the narrowest 

parts of the channel, there was ample room for a tour boat to safely pass a kayak 

without hitting or crowding the kayak while the kayak remains within about five 

feet from the riverbank. (Tr. 106-108). 

21. At the time of the incident, there were no other vessels in the immediate area. 

(Tr. 172). More specifically, there were no boats in the middle of the river or on 

the south side or opposite side of the MANA, and the rest of the kayakers on the 

tour had paddled ahead of the Webb family or were well behind the Webb's 

kayak. (Tr. 35, 54). Thus, there was more than ample room for the Webb's 

kayak and Respondent's tour boat to meet or pass each other in that turn or bend 

without Respondent getting too close and striking or colliding with the kayak. 

22. Captain Nihipali turned the tour boat around and proceeded to speed towards and 

close in on the Webb family in an effort allegedly to get the kayak's identification 

number. (Tr.331). 

23. The Waialeale Boat Tours, Inc., which employs Captain Nihipali and owns the 

MANA, tries to maintain a logbook containing the details of all incidents and 

contact situations between their vessels and kayaks on the Wailua River. (Tr. 

331). In order to maintain the necessary information in the logbook, the company 

has instructed their captains to either stop the kayaks and inquire about the kayak 

company or to get the kayaker's identification number. (Tr. 220). This can be 

23 
done by calling out loud to the kayaks from a safe distance. See IO's exhibits in 

evidence of photographs of the tour boat and ,kayaks sharing this river together 

safely and with plenty of room for both type vessels. 

24. As the Webbs continued to paddle down the river towards the dock, they suddenly 

felt the MANA's bow or front collide, strike or ram into the back of their kayak 

and them. (Tr. 34, 51, 65). Mrs. Webb, a teacher ofhandicapped children, 

compared it to a "car running over" a skateboarder. (Tr. 73, 74). Mrs. Webb: 

" ... like you know if a skateboard goes running down the street and happens to 

splash a big beautiful Corvette? Does the Corvette have a right to turn around and 

cut down the skateboarder and run them over or push them up against the side of a 

wall?" ... "I mean that's a big boat." (Tr. 74). About that time, Mr. Webb 

outstretched his oar to fend off the tour vessel from striking his family's kayak a 

second time or to avoid having the W ebbs pushed against the north bank of the 

river. (Tr. 24,34, 66). 

25. The impact from the collision pushed the Webbs and their kayak sideways out 

toward the starboard side of the MANA and in front of the much larger vessel's 

14-foot wide bow. (Tr. 35, 53-54). All the while, the Webbs attempted to paddle 

closer to the bank and away from the tour boat. (Tr. 53). 

26. The Webbs became frightened for their lives, believing that Captain Nihipali was 

attempting to tip their kayak and dump them into the river. (Tr. 52-53). In 

particular, Mr. Webb feared for the safety of his family since his wife was not a 

good swimmer and their three-year-old son could not swim at all. (Tr. 21, 25-26). 

24 
' ' 

27. After the crowding and collision by Respondent and his tour boat, the Webb 

family finally regrouped with the kayak guide and paddled back to the dock. (Tr. 

26). 

28. Captain Nihipali telephoned the office manager at Waialeale Boat Tours from the 

tour boat and told her that a kayaker had splashed water onto the tour boat and 

. wet some of the passengers onboard. Apparently he did not also tell her it had 

also been rainy and windy. (Tr. 20, 223, 240). In addition, he provided the 

kayak's identification number, which permits the office manager to identify 

which tour group company owns the kayak. (Tr. 223). 

29. Upon receiving word that an incident had occurred on the river between the 

MANA and a kayaker, the Respondent's company's office manager and owner's 

daughter telephoned the State of Hawaii's Department of Land and Natural 

Resources ("DLNR") to file a complaint against the kayak or kayak company. 

(Tr. 223). This Department dispatched one of their officers, Officer Corey 

Aguano, to the vessels' departure and docking areas to investigate these matters. 

30. Officer Corey Aguano from the DLNR responded to the complaint by proceeding 

first to the marina to gather the kayaker's statements. (Tr. 126, 138, 140-141, 

224). Some or all of the kayakers finished their tour and docked before the 

Respondent's MANA did. 

31. After Officer Aguano was questioning and talking with the kayakers, the MANA 

eventually returned to the marina area to dock. Officer Aguano then finished 

interviewing and taking the kayakers' statements and then proceeded over to the 

docking tour boat. (Tr. 143). 

25 
32. Upon approaching the larger tour boat, Officer Aguano informed Captain Nihipali 

that he was investigating the kayak incident that transpired earlier on the river and 

that he wished to interview and take statements from both the staff and passengers 

onboard Respondent's vessel. (Tr.144). 

33. Captain Nihipali responded to Officer Aguano's investigation in a very 

uncooperative manner and boldly and brazenly told the passengers they were 

under no obligation to talk to or fill out statements for the State of Hawaii's 

environmental uniformed officer. (Tr. 144, 209-210). 

III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Donald Nihipali, his U.S. Coast Guard issued captain's license and 

the subject matter of this hearing are properly within the jurisdiction of the United 

States Coast Guard and the Administrative Law Judge in accordance with 46 U.S. 

Code 6301 and 46 U.S. Code Chapter 77, including Section 7703(1)(B) (West 

Supp. 2002); 5 U.S. Code Sections 551-559, U.S. Administrative Procedure Act; 

46 C.P.R. Part 5 (2001); and 33 C.P.R. Part 20 (2001); and the Inland Navigation 

Rules, 33 U.S. Code Sections 2001 through 2038, plus five Annexes, effective 

since about 01 March 1983. For example 33 U.S.C. 2001 indicates Inland 

Navigation Rule 1, and 33 U.S.C. 2034 indicates Rule 34. 

2. At all relevant times, Respondent Nihipali was the holder of, and acted under the 

authority of, his U.S. Coast Card issued Vessel Operator's License No. 779470 

while serving as captain and steersman aboard the tour boat or vessel named the 

26 
MANA 0 KALANI ( ofte~ referred to herein as "MANA") on and about 

December 21, 2000, on said river. 

3. The testimony of Captain Nihipali that he was traveling up the middle of the river 

when the Webb's kayak, which was several feet away from the bank, continued to 

approach the MANA dead center of the tour boat's front or bow is not found 

credible. The testimony of the Investigating Officers' five witnesses, including 

the two teachers Mr. and Mrs. Webb, the kayak tour guide, Environmental Police 

Officer Aguano and the California fireman Mr. Cormode in a kayak behind them, 

who described paddling along the edge of the river as close to the north river bank 

as possible when the MANA passed too close, only a couple of feet away and 

then collided into the kayak, is considered and found to be a more truthful, 

credible and accurate representation of the true or correct facts. 

4. The testimony of Captain Nihipali that he reversed the MANA and attempted to 

hold it in place to avoid an encounter with the kayak while the Webbs continued 

to approach his vessel in anger and intentionally splash water onto the deck and 

passengers is not found credible. The testimony of the Webbs, along with the 

testimony of Firefighter Corm ode, another tourist on the kayak trip, who 

described the MANA as suddenly appearing and continuing to approach the 

Webb's kayak until it pushed them against the branches and plants along the river 

bank is considered a more truthful and accurate representation of the facts. In 

addition,.the testimony of the Webbs and Firefighter Cormode that water may 

have unintentionally splashed onto the MANA's deck as Mr. Webb tried to keep 

the vessels apart is deemed credible. 

27 
5. The testimony of Captain Nihipali is not found truthful and credible, that he 

carefully turned the tour boat around and headed back towards the Webbs in an 

effort to obtain the name of the kayak company and the identity of the individuals 

involved. The testimony of the Webbs and Firefighter Cormode that the MANA 

passed the Webb's kayak, turned around, and struck or rammed into the rear of 

the Webb's kayak, causing Mr. Webb to fend off the vessel with his oar a second 

time is found to be a more credible, truthful and accurate representation of the 

correct facts. 

6. The testimony of Chelsea Alesna, a hula dancer and entertainer working as 

Respondent's co-worker on board the MANA at the time of the incident is not 

found credible. She claimed that the Webbs were in the middle of river, 

approaching the tour boat as they intentionally splashed water onto the deck and 

passengers is not found credible. Ms. Alesna was dancing facing the tour boat's 

passengers at the time of the incident with her back turned towards the front of the 

tour vessel and, therefore, was distracted from observing the events unfolding. 

She denied under oath ever talking to Respondent's two attorneys before having 

lunch with them the day of the hearing. Even after this Respondent's attorney 

interrupted her questioning and said to her and the judge he "contacted her a few 

weeks" before the hearing, she did not correct this incredible, untruthful 

testimony. 

7. At no time throughout the boating incidents, did Captain Nihipali sound the 

vessel's horns or whistles to indicate danger or a close approach to the kayak in or 

28 
near a narrow river bend or tum. This violated the vessel safety rules known as 

the Inland Navigation Rules 33 U.S.C. 2001-2038, including Rules 2 and 34(e). 

8. The evidence in the record as a whole demonstrates that Respondent Nihipali, as 

the captain operating the MANA on December 21, 2000, failed to conform to the 

standards of safety and care required of a reasonably prudent captain and 

steersman under the circumstances by willfully navigating towards and colliding 

with the paddling kayak carrying the Webb family. Respondent created a close 

quarters situation, and assaulted the Webb family with a dangerous weapon, 

namely, his bigger, faster vessel. In addition, Respondent Nihipali failed to 

navigate his vessel with due caution by not sounding the required vessel's whistle 

or signal blast when approaching an obscured bend or tum in a narrow channel or 

river. 

9. The first charge of"MISCONDUCT" against the Respondent is found PROVED 

by a preponderance of the reliable, probative, substantial and credible evidence as 

taken from the entire record considered as a whole. 

10. The second charge of "NEGLIGENCE" against the Respondent is found 

PROVED by a preponderance of the reliable, probative, substantial and credible 

evidence as taken from the entire record considered as a whole. 

11. The third charge of "VIOLATION OF LAW OR REGULATION" against the 

Respondent is found PROVED by a preponderance of the reliable, probative, 

substantial and credible evidence as taken from the entire record considered as a 

whole. 

29 
I ' 

12. The fourth charge of"VIOLATION OF LAW OR REGULATION" against the 

Respondent is found PROVED by a preponderance of the reliable, probative, 

substantial and credible evidence as taken from the entire record considered as a 

whole. 

IV. OPINION 

As a preliminary matter, and although not mentioned by Respondent Nihipali's 

attorneys, it is noted that certain charges alleged in the Complaint can be considered 

duplicative for the purpose of determining a sanction or order. More specifically, the 

charge of negligence is based upon Respondent's willful endangerment of the Webb 

family by the manner in which he operated his vessel. Likewise, the first of the two 

charges alleging a violation oflaw or regulation is based upon Respondent's failure to 

comply with Inland Navigation Rule 2 (commonly known as the rule of good 

seamanship) by creating a close quarters situation. It is well recognized that the 

exigencies of proof may require multiplicative or alternative charging in a particular case. 

See Appeal Decision 2503 (MOULDS); see also, Appeal Decision 2496 (MCGRATH). 

As such, both charges will stand for the purpose of determining the findings but will be 

considered jointly, rather than separately, in awarding a sanction. See Appeal Decision 

2503 (MOULDS); see also Appeal Decision 2496 (MCGRATH). 

Now we shall discuss the merits of this case. 

A major purpose of Coast Guard suspension and revocation proceedings and 

evidentiary hearings and Decisions and Orders by U.S. Administrative Law Judges is to 

30 
promote safety at sea, in ports and also on navigable rivers and channels. See 46 U.S.C. 

Chapter 77, including 46 U.S.C. 7701 (West Supp. 2002) and Inland Navigation Rules, 

33 U.S.C. 2001 through 2038, plus five Annexes. If it is shown that a license holder has 

committed an act of negligence, misconduct, and/or a violation of law or regulations in 

performing his duties relating to the vessel, his U.S. Coast Guard issued licenses and 

documents may be suspended or revoked if warranted and called for by the facts and 

applicable laws. See 46 U.S.C. Chapter 77, including 46 U.S.C. 7703(1)(B), and the U.S. 

Administrative Procedure Act 5 U.S.C. 551 through 559. 

In suspension and revocation proceedings, the burden of proof is on the 

Investigating Officers (lOs) to establish a prima facie case of negligence, misconduct, or 

a violation oflaw or regulation by a preponderance of the evidence. See 33 C.P.R. 

20.701-20.702 (2000); see also Appeal Decision 2485 (YATES). Negligence is defined 

in 46 C.P.R. 5.29 (2000) as "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." This definition includes the 

failure of an individual to exercise the degree of care, vigilance and forethought that a 

person of ordinary caution and prudence ought to exercise under the facts and 

circumstances. See Appeal Decision 2550 (RODRIQUES). In order to establish 

negligence, the lOs must prove that the Respondent's conduct, in some manner, failed to 

conform to the standard of care required of a reasonably prudent mariner acting as 

captain and steersman under the same circumstances. See Appeal Decision 2321 

(HARRIS); see also Appeal Decision 2282 (LITTLEFIELD). 

31 
Similarly, misconduct is defined in 46 CPR 5.27 (2000) as "human behavior that 

violates some formal, duly established rule," such as those found in the common law, the 

general maritime law, a ship's regulation or order, or shipping articles. It is an act that is 

forbidden or a failure to do what is required. In the absence of such a rule, misconduct is 

human behavior that a reasonable person would consider to constitute a failure to 

conform to the standard of conduct that is required in the light of all the existing facts and 

circumstances. See Appeal Decision 2152 (MAGIE). In addition, specific intent is not 

an essential element of the charge of misconduct in these administrative proceedings. In 

other words, the lOs do not have to prove Respondent had a specific intent under the 

charge of misconduct. See Appeal Decision 2607 (ARIES); see also, Appeal Decision 

2286 (SPRAGUE). 

Finally, a violation oflaw or regulation includes a failure to comply with any law 

or regulation intended to promote marine safety and to protect the people and vessels 

involved. See 46 CPR 5.33 (2000). Inland Navigational Rule 2, titled "Responsibility," 

and commonly referred to as "the rule of good seamanship," as well a:s Inland 

Navigational Rule 9, which governs the navigation of vessels through narrow rivers or 

channels, fall within the scope of 46 CPR 5.33. 

Here, the lOs have proved that Respondent Nihipali committed acts of 

negligence, misconduct and violations of law or regulation on December 21, 2000, which 

created and resulted in a close quarters situation and collision between his larger 

motorized tour boat and a smaller plastic kayak carrying three people or passengers. 

More specifically, Respondent Nihipali was negligent because he knowingly and 

willfully turned his larger, more powerful and faster vessel towards the kayak and 

32 
riverbank. He thereby endangered the three lives of the Webb family, as well as the lives 

of the passengers and crew aboard his tour boat, especially if his vessel struck the 

riverbank. Likewise, Respondent Nihipali committed an act of misconduct when he 

proceeded to push the Webb's kayak near or against the riverbank and wrongfully assault 

the Webbs by placing them in fear of grave bodily harm. By navigating his vessel 

towards the kayak and creating a close quarters situation, Captain Nihipali violated 

Inland Navigation Rule 2, which governs the use of good seamanship. 

Similarly, Captain Nihipali violated Inland Navigation Rule 9 when he failed to 

navigate with due caution and sound one prolonged signal or whistle blast as he neared or 

approached the Taiau river bend or turn. As such, the actions of Captain Nihipali failed 

to conform to the standards of care required of a reasonably prudent licensed captain and 

steersman of the same station under the same circumstances. 

In defense ofhis actions taken on December 21, 2000, the Respondent's attorneys 

raise the following arguments, which will all be addressed in further detail: 

I) Captain Nihipali did not assault the Webb family when he turned his 

vessel around in the direction of their kayak in an effort to comply with 

company policy and obtain the necessary information; 

II) Captain Nihipali followed the rule of good seamanship by taking action to 

stop the momentum of his vessel and avoid a collision; and 

III) Although Captain Nihipali failed to sound one prolonged signal blast as he 

approached the Taiau river bend, the appropriate danger signal was given. 

33 
But I find no sounds or signals were sounded or given by Respondent at all, with 

regard to Respondent's Argument III. 

For all the reasons stated herein, all of the Respondent's arguments are rejected 

after considering the entire hearing record as a whole. 

I. Captain Nihipali Wrongfully Assaulted the Webb Family when He Maneuvered His 

Larger Vessel in the Direction of Their Kayak and thereby Placed Them in Fear and 

Grave Danger of Bodily Harm 

The Respondent and his attorneys contend that although he deliberately turned the 

larger tour boat, the MANA, around to head in the direction of the Webb family's kayak, 

he did so in compliance with company policy to obtain necessary information. 

Respondent Nihipali further argues that his actions, which were conducted safely and in 

accordance with the Inland Navigation Rules, presented no danger to the Webbs. In 

addition, the Respondent alleges that the record is devoid of sufficient evidence to 

establish whether an actual vessel-to-vessel collision occurred between the MANA and 

the Webb's kayak. This contention is based solely on the existence of contradictory 

testimony among the witnesses who testified at the Respondent's hearing. More 

specifically, the Respondent refers to the testimony of the Coast Guard's witnesses, who 

state that after the MANA initially came into close contact with the Webb family, it 

proceeded to close in on the Webbs at a ninety-degree angle and Respondent eventually 

collided or rammed his much larger vessel into the back of the Webb's kayak. The 

Respondent's witnesses, however, testified that the two vessels never made contact with 

34 
each other, but rather it was Mr. Webb who struck the side of the MANA with a paddle. 

Given the vast contradiction in witness testimony, the Respondent argues that the 

administrative law judge cannot properly determine whether a collision occurred. 

The Respondent, however, fails to recognize that the ALJ is the decider or arbiter 

of facts. As such, it is part of the ALJ's duties to evaluate the credibility of the witnesses 

and the weight of the evidence in determining what version of events under consideration 

is correct. See Appeal Decision 2116 (BAGGETT). There is longstanding precedence in 

these suspension and revocation proceedings that the ALJ' s findings of fact, including 

credibility, are upheld unless they are shown to be arbitrary and capricious or clearly 

erroneous. See Appeal Decision 2227 (MANDL Y). The rational for these rules is that 

the fact-finder can consider among other things the demeanor of the witnesses, their tone 

of voice, body language and other matters that are not captured within the pages of a cold 

record or hearing transcript. See Appeal Decision 2616 (BYNES). In short, the ALJ is 

free to find credible or incredible or accept or reject the testimony of any witness so long 

as his final decision is supported by substantial evidence. See Appeal Decision 1952 

(AXEL); see also, Appeal Decision 1958 (NORTON). 

After considering the totality of the evidence, the demeanor of the witnesses and 

their respective interests in the outcome of the proceedings, the undersigned exercises his 

duties by assigning a greater truthfulness and weight to the testimony of the 

government's witnesses regarding the events of this case. In light of the more accurate 

and credible representation of the facts and the truth, the undersigned finds that Captain 

Nihipali came too close to the Webb family and their kayak when he made a wide turn to 

back out of the dock. In an effort to fend off the MANA and avoid being pushed further 

35 
into the riverbank, Mr. Webb used a paddle to push away from the side of the tour boat. 

In the process, however, water inadvertently splashed onto the MANA's deck. 

Thereupon, Captain Nihipali became irate and deliberately turned his vessel around to 

approach the Webb's kayak a second time. In his anger, Captain Nihipali collided or 

rammed his larger, more powerful vessel into the back of the Webb's kayak, placing 

them in grave danger and fear and wrongfully assaulting and battering them with a 

dangerous weapon, namely his larger, faster, more powerful vessel. 

After considering the entire record as a whole, and carefully listening to and 

watching the witnesses who appeared at the hearing, I make findings that in general I find 

the five (5) IO's witnesses much more credible than the five (5) Respondent's witnesses. 

(Entire Transcript and record). 

The law generally recognizes two types of assault. The first type of assault may 

be defined as an unlawful attempt, coupled with the present ability to inflict injury on 

another person. In other words, an attempt to commit a battery with the apparent ability 

to do so constitutes an assault. In order to prove this first type of assault, the state of 

mind of the actor is at issue. The second type of assault, however, merely involves 

putting another person in apprehension of harm when there is the apparent present ability 

to inflict harm. With this second type of assault, it is enough that the victim is placed in 

reasonable apprehension of immediate harm. Therefore, it does not matter whether the 

actor actually intends to inflict harm or whether he is even capable of inflicting such 

harm. See Appeal Decision 2551 (LEVENE); see also, Appeal Decision 1776 

(REAGAN). 

36 
Under the above rules, the assault was completed in this case when Respondent 

placed the Webb family in reasonable apprehension of immediate harm. More 

specifically, the Webbs became frightened for their lives, believing that Captain Nihipali 

was attempting to strike or tip their kayak and dump them into the river. The level of 

danger was elevated when the Webbs, who were sitting only inches off the water in a 

small plastic boat, watched as Captain Nihipali continued to approach head-on in a large 

faster motorized vessel, weighing approximately fifteen net tons. After an exchange of 

angry words and obscenities, Captain Nihipali made aU-turn up the river to navigate 

back to and close in on the Webbs a second time and actually rammed or collided into the 

back of their kayak. These actions constitute an assault and battery on the Webbs and 

their rented kayak. Given the nature of this confrontation, the Webb's apprehension of 

being thrown into the water and drowning was reasonable. Moreover, the Respondent's 

claimed desire or intent to obtain the kayak's identification number does not negate the 

assault and battery by collision. See Appeal Decision 2551 (LEVENE). As such, there is 

substantial evidence of a reliable and probative nature to establish proof of assault and 

battery against the Webbs and Respondent deliberately causing a collision between two 

vessels both containing people. 

Finally, actions taken in accordance with company policy are no defense for 

Captain Nihipali's reckless disregard for safety and caution. The Respondent, as the 

licensed operator and steersman of the MANA, alone bears the responsibility for turning 

his vessel around and maneuvering and steering into the Webb family's rented kayak. 

See Appeal Decision 674 (MILLER). Moreover, it is well-established law that the captain 

or operator of a vessel is the person in command and, therefore, has the ultimate 

37 
responsibility for the safe navigation of the vessel. See Appeal Decision 2293 (SMITH 

& RUBY); see also, Appeal Decision 2321 (HARRIS). As such, orders from an 

employer to obtain information such as the kayak's number by any means possible will 

not excuse the Respondent's negligence and improper operation ofhis vessel. See 

Appeal Decision 2367 (SPENCER). The inherent danger of such a practice is that by 

deliberately getting too close to another vessel and thereby creating a close quarters 

situation may lead to a collision with another vessel, or in the very least, place the 

passengers in fear of a collision, which is exactly what happened in this case. While 

there may be situations in which obtaining information from another vessel is necessary, 

this does not excuse the vessel operator from failing to use due care to ensure that the 

vessels do not come into collision with each other and to ensure that the passengers 

aboard are not placed in danger. In short, Captain Nihipali's actions did not meet the 

level of a reasonable and prudent person when he deliberately turned his vessel around to 

wrongfully assault the Webbs and, thereby, endanger the vessels as well as the 

passengers and crew onboard. Thus, there is ample credible evidence to conclude that 

Respondent Nihipali' s actions and behavior on December 12, 2000 support the charges of 

misconduct and negligence. 

II. Captain Nihipali Violated the Rule of Good Seamanship by Navigating His Vessel 

Towards a Self-propelled (Paddling) Kayak and Creating a Close Quarters Situation 

Eventually Resulting in Collision 

38 
Respondent Nihipali's attorneys argue that although there is some contradicting 

testimony among the witnesses regarding the location of the Webb's kayak at the time of 

the incident they argue, the more credible testimony evinces that the W ebbs were 

wrongly in the middle of the river. Respondent further contends that when he saw the 

Webb's kayak, he immediately slackened the speed ofhis tour boat in an attempt to avoid 

a collision, thereby complying with the Inland Navigation Rules. Despite his efforts to 

pass safely, however, the Respondent claims that the Webbs proceeded to approach his 

vessel, violently strike the side of the boat with an oar, and deliberately splash water onto 

the deck and passengers. I find Respondent's and the hula dancer C. Alesna's testimony 

not to be credible. Two of Respondent's other witnesses were not present at the scene on 

the river at the collision and close quarters situation. They were the son and daughter of 

the Tour Boat Company Owner. 

The undersigned is not convinced that the Respondent took all necessary actions 

to avoid a collision with the Webb's kayak. More specifically, Captain Nihipali's 

testimony that he slackened the vessel's speed and reversed its momentum when he first 

observed the Webbs is not deemed credible in light ofhis refusal to maneuver away from 

and around the Webb's kayak. Further, when asked why Respondent simply did not 

move over and avoid the kayakers, Captain Nihipali defiantly and belligerently replied 

that the starboard or right or south side of the river belongs to him. (Tr. 320, 351-352). 

However, the kayakers also have a right to safely use and share the same river at the same 

time. 

More importantly, the record reviewed as a whole shows that it was Captain 

Nihipali who reversed his vessel, made aU-turn on the river, and navigated towards, at 

39 
and into the Webb's kayak under the guise or claim of obtaining an identification number 

of the Webb's kayak. Regardless, of whether the vessels were three feet from the banlc or 

slightly closer to the middle of the river, Captain Nihipali alone bears the responsibility 

for deliberately maneuvering his vessel in the direction of the Webbs and creating a close 

quarters situation. This is supported even by the testimony of the hula dancer, as well as 

passengers on board the MANA at the time of the incident, describing how Captain 

Nihipali turned the boat around after the parties began yelling at each other. (Tr. 172-

17 3, 90-191). The hula dancer further testified that the tour boat was so close to the 

kayak that she could not actually see the kayak from where she stood on deck. (Tr. 175-

176). Similarly, the kayak tour guide testified credibly that he observed the MANA tum 

around and proceed back in the direction of the Webb family. (Tr. 92-93). Soon 

afterwards, the W ebbs felt the tour vessel's bow or front ram into the back of their kayak. 

(Tr. 34, 51, 64-65). At this point, the MANA was so close to the kayak that Mr. Webb, 

in an attempt to save his family, was able to fend off the faster tour boat with his short oar 

as they passed. (Tr.53-54, 134). Finally, Captain Nihipali admitted that he turned his 

vessel around because his employer instructed him to get the name or number of the 

kayak company and the individuals involved using any way, means or form. (Tr. 331). 

Three of the IO's witnesses were disinterested witnesses who would tend to tell 

the truth. I find their testimony and that of the Webb's credible. 

By placing the Webb's kayak in a dangerously close position to his own faster 

and larger vessel, Captain Nihipali failed to comply with Inland Navigation Rule 2, 

which demands the level of caution exercised by the ordinary practice of seamen. Inland 

Navigation Rule 2 further provides in relevant part that "due regard shall be had to all 

40 
dangers of navigation and collision and to any special circumstances, including the 

limitations of the vessels involved." See 33 U.S.C. 2002. Given the testimony of 

witnesses from both sides, along with the Respondent's own admission, it is undisputed 

that Captain Nihipali turned his vessel around and proceeded to power up his vessel, steer 

and navigate towards the Webb's kayak. The Respondent's actions created a danger to 

his vessel and to near-by kayakers. In addition, the Respondent neglected to anticipate or 

allow for the fact that other vessels may have been nearing the river bend or turn. As 

such, the Respondent failed to navigate with the necessary level of caution and 

disregarded the inherent dangers of navigation and collisions, thereby violating Inland 

Navigation Rule 2. 

III. Captain Nihipali Failed to Navigate with Due Care and Particular Alertness when He 

Again Violated the Inland Navigation Rule 9(f) when Respondent Neglected to Sound 

One Prolonged Blast or Whistle as He Neared or Approached the Taiau River Bend or 

Tum 

Respondent and his attorneys contend that sounding one prolonged blast, as 

required in Inland Navigation Rule 9(f), 33 U.S.C. 2009(f), was inappropriate under the 

circumstances, and that once a close quarters situation seemed imminent, the emergency 

or danger blast of five ( 5) or more sounds or signals as required by Inland Navigation 

Rule, 33 U.S.C. 2009(d) or Rule 9(d) was the more appropriate signal to use. Although 

Respondent Nihipali's attorneys fail to cite the applicable law or regulation that details 

41 
the use ofthis purported "emergency signal," he describes it as "five rapid blasts." 

Captain Nihipali further contends that in this particular case, the danger signal of five 

rapid blasts trumps the requirement to sound one prolonged blast because he never 

actually entered the bend, but rather met the Webb's kayak on the straightway. However, 

Respondent never sounded the danger signal of five (5) rapid blasts nor the required one 

(1) blast. Respondent sounded no blasts or warning signals. 

Respondent fails to recognize that Inland Navigation Rule 9(f), which requires a 

vessel operator to navigate with due caution when approaching a river bend or turn, is not 

optional. The applicable safe Inland Navigation Rule specifically states that a vessel 

"nearing" a bend or turn in a river or narrow channel, where other vessels may be 

obscured by an intervening obstruction, "shall navigate with particular alertness and 

caution and shall sound the appropriate signal prescribed in Rule 34(e)." See, 33 U.S.C. 

2009 and 2034(e) (2002). In turn, Inland Navigation Rule 34(e) requires or mandates that 

vessels nearing or approaching a bend in a narrow channel, as described above, "shall 

sound one prolonged blast." See, 33 U.S.C. 2034 (2002). Further, there is no provision 

in the Navigation Rules to substitute the danger signal of five (5) successive blasts in 

place of one (1) prolonged signal when nearing or approaching a blind river or channel 

bend or turn. See Appeal Decision 2503 (MOULDS). As such, Navigation Rule 9(f) is 

mandatory in nature, and a thorough review of the record reveals that no special 

42 
circumstances· or dangers of navigation existed in this case to permit a departure from the 

required rules and procedures? 

It is irrelevant whether the incident took place in the Taiau Bend or turn or on a 

straight river section near the bend as the applicable regulations are enforced when a 

vessel approaches or nears a bend in a river or channel. Therefore, Respondent Nihipali's 

argument that sounding one prolonged blast was unnecessary since he met the Webbs on 

the straightaway is unavailing. When Captain Nihipali made aU-turn in the river and 

proceeded to navigate towards the Webb's kayak, he headed in the direction of the Taiau 

river bend. At that moment, he was required by Rule 9(f) to notify the Webbs and other 

vessels that may have been obscured on the opposite side of the Taiau Bend by sounding 

one prolonged blast. The importance of this safety rule is further evidenced by Captain 

Nihipali's own admission that he was unable to see whether another vessel was traveling 

down river as he approached the bend traveling upstream until he actually entered the 

bend. (Tr. 323). Given the credible testimony of witnesses from both parties that no 

horns or danger signals of any kind were heard from Respondent's vessel, along with the 

Respondent's own assertion that Rule 9(f) was inappropriate under the circumstances, it 

is undisputed that no single prolonged blast was ever sounded. As such, Respondent 

Nihipali failed to navigate with particular alertness and caution as he approached a 

2 In construing and complying with the Inland Navigation Rules, due regard shall be had to avoid all 

dangers of navigation and collision and to any special circumstances which may render a departure from 

the above rules necessary in order to avoid immediate danger. See, 33 U.S.C. 2002 (2002). Exceptions to 

the Rules, however, should only be allowed with great caution and only when imperatively required by the 

special circumstances of the case. See, Appeal Decision 807 (DOEPFNER). The special circumstances 

rule has been construed as arising only in those dire situations when adherence to the ordinary rules would 

place the vessels in certain danger and, therefore, should not be treated as a license to disobey the ordinary 

rule when the navigator takes it in his head to do so. There must be a sudden danger or an unexpected 

development. See, Appeal Decision 2070 (PAYNE); see also, Appeal Decision 1925 (ABBOTT). 

43 
narrow river bend; thereby Respondent again violated another Inland Navigation Rule, 

namely, Rule 9(f), supra. Respondent also never sounded any five (5) short and rapid 

blasts as a danger signal either. So Respondent and his attorneys' arguments about it do 

not apply. 

V. CONCLUSION 

The preponderance of evidence in the entire record considered as a whole 

supports finding that the Respondent acted carelessly and recklessly with respect to the 

navigation and operation of the tour boat MANA 0 KALANI, resulting in negligence, 

misconduct and violations of laws or regulations by Respondent. Specifically, 

Respondent failed to comply with the Inland Navigation Rules by maneuvering his vessel 

towards, too close and into collision with a kayak carrying the Webb family, wrongfully 

assaulting the Webbs by creating a close quarters situation, and striking their kayak with 

his vessel, and failing to navigate with due caution by not sounding the required signal 

when nearing or approaching a blind river bend or tum. The Respondent's disregard for 

the inherent dangers of navigation and collision placed the Webb family, as well as the 

passengers and crew aboard his vessel, in grave danger. 

It is well within the duties of the undersigned to order any of a variety of 

sanctions. See 46 C.P.R. 5.569; see also Appeal Decision 2569 (TAYLOR). The 

undersigned, however, is not bound by this or the Table of Suggested Orders. See 

Appeal Decision 2569 (TAYLOR). The Table of Suggested Orders merely serves only 

as some guidance to an ALJ, and consideration of mitigating or aggravating factors and 

44 
evidence does justify a lower or higher Order than the range suggested in the average 

order table. 46 C.P.R. 5.569(d). After thoughtful and careful consideration of all the 

circumstances and facts surrounding this case as discussed above, an outright suspension 

plus probation of Respondent's license and further schooling in the Navigation Rules by 

Respondent is found to be the appropriate order in this particular case. WHEREFORE, 

VI. ORDER 

ORDERED that the service of this Decision on the Respondent or his attorneys 

will serve as notice to the Respondent of his right to appeal, the procedure for which is 

set forth in 33 C.P.R. 20.1001-20.1003. (Attachment A). 

IT IS FURTHER ORDERED that U.S. Coast Guard License No. 779470 and any 

later such issued licenses or documents issued to the captioned Respondent are hereby 

Suspended for Twelve (12) Months Outright, Plus an Additional Twenty-four (24) 

Months on Probation, which ifviolated and proved will result in Eighteen (18) Months 

Additional Outright Suspension of Respondent's Coast Guard Issued Licenses and 

Documents. Respondent is further Ordered to take and pass a proper course on the Inland 

Navigation Rules. Ifhe cannot pass such a course and test within six (6) months of the 

date this Order goes into effect, satisfactorily to the course giver and to the Senior 

Investigating Officer of Marine Safety Office Honolulu, Respondent's license will be 

Revoked. Respondent is ordered to immediately deposit his License by mail or in person 

with the Senior Investigating Officer at U.S. Coast Guard Marine Safety Office 

Honolulu, Hawaii. The Twelve (12) Month Suspension will commence when 

45 
Respondent Donald Nihipali's license is so deposited, followed by the Twenty-four (24) 

Month Probation. c:-"""· 

~;~ 

Dated this )6 it day of 1: Jl vt:-w Lt 2002 

Houston, Texas ~( 

46 

THOMAS E. MCELLI({6;T 

Administrative Law Judge 

U.S. Coast Guard