UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERICA : DECISION OF THE 

UNITED STATES COAST GUARD : 

 : VICE COMMANDANT 

 vs. : 

 : ON APPEAL 

 : 

 : NO. 2680 

MERCHANT MARINER LICENSE : 

: 

 : 

Issued to: JOHN C. McCARTHY, III : 

This appeal is taken in accordance with 46 U.S.C. § 7701-7705, 46 C.F.R. Part 5, 

and the procedures in 33 C.F.R. Part 20. 

By a bifurcated Decision and Order dated November 29, 2006 (hereinafter “D&O 

I”), and December 28, 2006 (hereinafter “D&O II”), Judge Peter A. Fitzpatrick, an 

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

Norfolk, Virginia, found that Mr. John C. McCarthy (hereinafter “Respondent”) had 

committed acts of negligence and misconduct and ordered that Respondent’s merchant 

mariner license be suspended, outright, for eight months followed by a suspension of 

twelve months stayed on twelve months probation. 

The specification supporting the negligence charge alleged that Respondent 

operated the T/V CHARLESTON negligently by exceeding the minimum safe speed in 

Savannah Harbor on March 14, 2006. The specification supporting the misconduct 

charge alleged that Respondent violated 33 C.F.R. § 162.65(b)(3) by proceeding at a 
McCARTHY NO. 2680 

 

2

dangerous speed that was not consistent with the Inland Waterways Navigation 

Regulations for waterways tributary to the Atlantic Ocean south of Chesapeake Bay. 

PROCEDURAL HISTORY

On April 27, 2006, the Coast Guard filed a Complaint against Respondent. [D&O 

I at 5] The Complaint alleged that Respondent violated 46 U.S.C. § 7703, 46 C.F.R. 

§ 5.29 and 46 C.F.R. § 5.33 by failing to operate the T/V CHARLESTON at a safe speed. 

[Id.] On May 16, 2006, Respondent filed an Answer to the Complaint wherein he denied 

negligently operating the vessel. [Id.] On June 13, 2006, the Coast Guard filed an 

Amended Complaint alleging that that Respondent violated 46 U.S.C. § 7703 by 

committing misconduct and negligence under 46 C.F.R. § 5.27 and 46 C.F.R. § 5.29, 

respectively, based on essentially the same factual allegations. [Id.] Having received an 

extension of time, Respondent filed his Answer to the Amended Complaint on 

July 7, 2006, asserting a defense of error in judgment. [D&O I at 6] A hearing was held 

in Savannah, Georgia, on September 20-21, 2006, at which the Coast Guard called seven 

witnesses and introduced twelve exhibits into evidence. [Id.] Respondent called three 

witnesses and introduced seventeen exhibits into evidence. [Id.] The ALJ issued his 

Order in the case on November 29, 2006, and issued his Final Decision and Order on 

Sanction on December 28, 2006. Respondent filed his Notice of Appeal in the matter on 

January 4, 2007 and perfected his appeal by filing his Appellate Brief on February 26, 

2007. The Coast Guard filed a timely Reply Brief in the matter on April 2, 2007. 

Accordingly, this appeal is properly before me. 
McCARTHY NO. 2680 

 

3

APPEARANCE: Respondent was represented by Charles H. Raley, Jr. The Coast Guard 

was represented by CWO Bernard Tufts, CWO Terry Roberts, and Petty Officer Michael 

Rohland, of U.S. Coast Guard Marine Safety Office Savannah, Georgia. 

FACTS

At all times relevant herein, Respondent was the holder of the Coast Guard issued 

merchant mariner license at issue in these proceedings and was acting under the authority 

of that license by serving as a federally mandated pilot. [D&O I at 7, 37; IO Exhibit 1] 

The remaining pertinent facts in this case are undisputed. 

At approximately 0300 on March 14, 2006, Respondent boarded the inbound T/V 

CHARLESTON in the vicinity of the sea buoy for the Savannah River. [D&O I at 8] 

After an initial meeting with the Master, Respondent proceeded to pilot the 

CHARLESTON up the Savannah River at full ahead. [Id.] While inbound, Respondent 

made passing arrangements with the pilot of the KOBE EXPRESS, and the two vessels 

successfully passed at Bloody Point. [Transcript (hereinafter “Tr.”) at 334] Respondent 

reduced his speed to slow ahead while passing the Coast Guard and Pilot stations. [Tr. at 

338] Respondent slowed the CHARLESTON at this point to avoid potential damage that 

the CHARLESTON’s surge could do to the unattended vessels moored there. [Tr. at 

441-42] Respondent then increased speed to full ahead. [Tr. at 339] On the 

CHARLESTON, slow ahead produces a speed of approximately 6 knots while full ahead 

produces a speed of approximately 14 knots. [Tr. at 490-3] The CHARLESTON 

continued upriver on about a half knot flood tide with light winds, calm seas and clear 

visibility. [D&O I at 7] 
McCARTHY NO. 2680 

 

4

After passing the Coast Guard and pilot boat stations, Respondent made the 

second of two required security radio broadcasts on VHF Channels 13 and 16. [Tr. at 

339] Savannah River Pilot Captain Spencer Edelman, aboard the outbound tug TARPON 

pushing an asphalt barge, responded. The two captains agreed to meet and pass below 

the Fig Island Turning Basin, after the CHARLESTON would have passed the LNG 

facility on Elba Island where the tankship GOLAR FREEZE was moored. [Tr. 164-5, 

67] In determining where to pass each other, the captains were constrained by the 

following factors: (1) the interim policy in effect for the Regulated Navigation Area 

(hereinafter “RNA”) prohibited meeting or overtaking within 1,000 yards of the LNG 

facility, (2) a Chatham County ordinance prohibited passing near a dredge and the dredge 

ARLINGTON was moored off Elba Island,1 and (3) it was not desirable to pass in the 

Bight Channel as the River curved around Elba Island. [Tr. at 345] After the 

CHARLESTON passed through this area where it would be difficult or prohibited to pass 

the TARPON, the CHARLESTON traveled another two nautical miles before it reached 

the Fig Island Turning Basin. [Respondent’s Exhibit D] Captain Edelman testified, and 

the ALJ found, that the Fig Island Turning Basin would have been the best place to pass 

under the circumstances, but the vessels could have passed at another location on the 

river. [Tr. at 168-69] 

At approximately 0418, the CHARLESTON passed the moored GOLAR 

FREEZE still at full ahead. [D&O I at 7] The surge from the CHARLESTON caused the 

GOLAR FREEZE to surge along the dock parting mooring lines, damaging the gangway, 

and causing an emergency shutdown of the LNG transfer operations. [Id.] The interim 

 

1

 Respondent was not aware of the ordinance at the time, but both pilots agreed that passing near the 
McCARTHY NO. 2680 

 

5

policy governing the RNA required that vessels such as the CHARLESTON transit the 

area within 1,000 yards of the LNG facility at minimum safe speed. [Respondent’s 

Exhibit K] The policy also required the LNG facility to have two standby towing vessels 

while a LNG tankship was moored in the slip. [Id.] 

BASES OF APPEAL

 Respondent appeals both the findings that negligence and misconduct were 

proved and the sanction imposed by the ALJ on the following basis:

I. The ALJ abused his discretion by finding that “minimum safe speed” is 

the equivalent of “bare steerageway” in determining the standard of care 

in this case; 

II. With regard to the error of judgment defense, the ALJ abused his 

discretion by (a) finding that Respondent had actual knowledge of the 

active LNG transfer, (b) refusing to acknowledge that the Respondent had 

three speed choices as he approached the LNG slip, (c) by refusing to 

consider all the circumstances facing the Respondent at the time he made 

his decision to proceed at full speed, (d) by applying a hindsight standard 

in determining the reasonableness of Respondent’s speed decision, (e) by 

finding that the Respondent was required to presume that the LNG Bridge 

Watch Tender would violate positive regulatory duties and (f) by refusing 

to credit Captain Edelman’s testimony regarding areas in which it was 

safe to pass; 

III. The misconduct count is subsumed by the Negligence count since both 

arise from the same operative facts; 

IV. The sanction of eight months suspension outright is excessive. 

OPINION

I. 

The ALJ abused his discretion by finding that “minimum safe speed” is the equivalent of 

“bare steerageway” in determining the standard of care in this case. 

On appeal, Respondent argues that the term “minimum safe speed” is undefined, 

and that the ALJ abused his discretion in determining that minimum safe speed and bare 

 

dredge should be avoided. 
McCARTHY NO. 2680 

 

6

steerageway are synonymous. Instead, Respondent argues that minimum safe speed must 

take into account numerous other factors including his passing arrangements with the tug 

TARPON. This assignment of error fails on two accounts. First, the ALJ’s 

understanding of minimum safe speed is a reasonable definition consistent with how the 

other pilots testifying at the hearing used the term. Second, and more important, the ALJ 

analyzed the facts “as if minimum safe speed encompasses a range of factors” as 

proposed by Respondent and still found the allegations proven. Consequently, even if 

the ALJ erred in equating the two terms, that error had no impact on his decision. 

The term bare steerageway is commonly understood to mean the slowest speed a 

vessel can maneuver without being out of control. See, e.g., Trico Marine Assets Inc. v. 

Diamond B Marine Services Inc., 332 F.3d 779, 784 (5th Cir. 2003). Consequently, at a 

speed below bare steerageway, a vessel could not be controlled. In other words, such a 

speed would not be safe. Since minimum is defined as the least possible quantity, 

amount or value,2 the minimum safe speed is the same as the lowest speed at which a 

vessel can safely operate. As the ALJ found, the two terms are linguistically 

synonymous, and the pilots who testified in this case understood them to mean the same 

thing. [Tr. at 112, 113, 136, 162] This included Captain Harvey, who testified on behalf 

of Respondent that minimum safe speed “is different on every vessel that you go on, so 

there’s no definition other than maybe the slowest speed you could go and have complete 

control over the vessel.” [Tr. at 503] 

It is well settled that the decision of the ALJ may only be reversed if his findings 

are arbitrary, capricious, clearly erroneous, or based upon inherently incredible evidence. 

 

2

 Funk & Wagnalls Standard College Dictionary 1973. 
McCARTHY NO. 2680 

 

7

Appeal Decisions 2570 (HARRIS), aff’d NTSB Order No. EM-182 (1966), 2390 

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

2474 (CARMIENKE), 2607 (ARIES), and 2614 (WALLENSTEIN). The findings of the 

ALJ need not be consistent with all the evidentiary material in the record as long as 

sufficient material exists in the record to support their justification. Appeal Decisions 

2527 (GEORGE), 2522 (JENKINS), 2519 (JEPSEN), 2506 (SYVERSTEN), 2424 

(CAVANAUGH), 2282 (LITTLEFIELD) and 2614 (WALLENSTEIN). The standard of 

proof for suspension and revocation proceedings is that the ALJ’s findings must be 

supported by reliable, probative, and substantial evidence. Appeal Decisions 2584 

(SHAKESPEARE), 2592 (MASON), 2603 (HACKSTAFF), and 2575 (WILLIAMS). 

Given the common sense equivalence of the terms “bare steerageway” and “minimum 

safe speed” and their interchangeable use in the maritime community, the ALJ did not err 

in finding them synonymous. 

 Even if the ALJ accepted Respondent’s argument that minimum safe speed could 

only be determined by considering all applicable factors including his passing 

arrangements with the TARPON, a careful review of the record shows that the ALJ did 

not err in holding that Respondent failed to operate CHARLESTON at the minimum safe 

speed. Indeed, during testimony at the hearing, Respondent admitted as follows: 

Q. You could have still cut it back to half passed [sic] the terminal and 

still achieved your objective of passing [TARPON] in that section of the 

river that you wanted to pass him in, is that right or not? 

A. I could, in hindsight you can. 

[Tr. at 433] Later, Respondent again admitted that he could have reduced speed and still 

passed TARPON in a safe place, but chose not to because standby tugs and a Docking 
McCARTHY NO. 2680 

 

8

Pilot were at the LNG terminal. [Tr. at 451-52] This was consistent with Captain 

Edelman’s testimony that the two vessels could still have passed in a safe place if 

Respondent had slowed CHARLESTON to pass the LNG terminal. [Tr. at 169] As the 

ALJ pointed out, both vessels could also have slowed if necessary to ensure the meeting 

took place in a safe part of the river. [D&O at 24] The record shows that Respondent 

felt that given the CHARLESTON’s light load, the minimal wake that it was throwing, 

and the presence of the standby tugs, he could safely pass the LNG terminal at full ahead; 

however, even if full ahead was a safe speed, by his own admissions it was not the 

minimum safe speed. Accordingly, Respondent’s first assignment of error is not 

persuasive. 

II. 

With regard to the error of judgment defense, the ALJ abused his discretion by (a) 

finding that Respondent had actual knowledge of the active LNG transfer, (b) refusing to 

acknowledge that the Respondent had three speed choices as he approached the LNG 

slip, (c) by refusing to consider all the circumstances facing the Respondent at the time 

he made his decision to proceed at full speed, (d) by applying a hindsight standard in 

determining the reasonableness of Respondent’s speed decision, (e) by finding that the 

Respondent was required to presume that the LNG Bridge Watch Tender would violate 

positive regulatory duties and (f) by refusing to credit Captain Edelman’s testimony 

regarding areas in which it was safe to pass.

 Respondent next argues that the ALJ abused his discretion in reaching a number 

of factual findings or in applying certain evidentiary standards in connection with his 

error of judgment defense. Although I find that the ALJ did not abuse his discretion,3

none of the allegations matter because the ALJ concluded that the error of judgment 

defense simply does not apply in this case, and I agree. 

 

3

 As for the specific allegations raised by Respondent, they either mischaracterize the ALJ’s findings, or 

are irrelevant, or both. For example, the ALJ found that Respondent was “aware of the LNG tankship’s 

presence in the slip and of the impending transfer” not that he was aware of an actual transfer. In addition, 
McCARTHY NO. 2680 

 

9

 Error in judgment is an affirmative defense to negligence. It recognizes that: 

there are occasions where an individual is placed in a position, not of his 

own making, where he has to choose between apparently reasonable 

alternatives. If the individual responds in a reasonable manner and uses 

prudent judgement [sic] in choosing an alternative he is insulated from any 

allegation of negligence. Hindsight may show that the choice was poor 

under the circumstances; but hindsight is not the measure of compliance. 

Appeal Decision 2173 (PIERCE), aff’d NTSB Order EM-81. See also Appeal Decisions

2500 (SUBCLEFF), 2325 (PAYNE) and 1940 (HUDDLESTON). Error of judgment, 

however, does not apply in this case since the evidence shows that the position in which 

Respondent found himself was one of his own making, and that he did not respond in a 

reasonable fashion. See, e.g., Appeal Decision 2601 (MCCARTHY) (evidence shows 

that the position in which Respondent found himself upon entering the squall was one of 

his own making, and that he did not respond in a reasonable fashion). 

 On appeal, Respondent argues the factors that went into his decision to pass the 

LNG facility at full ahead were not of his own making. I do not agree. The 

characteristics of Bight Channel, the presence of the LNG ship and the dredge, and the 

need to pass other vessels are not circumstances of Respondent’s making, but they are the 

everyday aspects of a Savannah River pilot’s working environment. Respondent had the 

ability to exercise control over the place where the CHARLESTON and the TARPON 

met by slowing his speed and also by asking Captain Edelman to slow TARPON’s speed, 

and his decisions placed the vessel in his charge and himself in the precarious position 

that is the subject of this action. 

 

the requirement to transit the area at minimum safe speed was triggered when an LNG tankship was 

present in the slip regardless of whether transfer operations were underway. 
McCARTHY NO. 2680 

 

10

 More importantly, the record supports a conclusion that Respondent did not 

choose between reasonable alternatives but rather ignored the prudent alternative 

available to him. Respondent and Captain Edelman both testified that Respondent could 

have slowed the CHARLESTON and still arranged to meet the TARPON in a safe place, 

thereby reducing the potential for damaging the GOLAR EXPRESS without increasing 

the risk of a collision with the TARPON. [D&O at 11, 24; Tr. at 169; 451-452] In 

addition, passing the LNG facility at full ahead was not a prudent alternative since the 

same interim requirements that prohibited passing within 1,000 yards of the facility also 

mandated transiting that area at the minimum safe speed. [Marine Safety Unit Charleston 

Marine Safety Information Bulletin 13-05 dated December 20, 2005] Finally, several 

Savannah River pilots testified that their procedure for passing a moored vessel such as 

the LNG ship was to maintain bare steerageway. [Thompson Tr. at 102, 104; Edelman 

Tr. at 162; Brown Tr. at 192.] 

 In sum, Respondent did not simply err in a choice between two reasonably 

prudent alternatives after being placed in a position not of his making. Instead, although 

he had the option to reduce his speed while passing the LNG facility and still pass 

TARPON in a safe place, Respondent chose to maintain full ahead, ignoring the 

requirement to maintain minimum safe speed, because he believed that it was safe 

enough to proceed at full ahead. This was not a reasonably prudent alternative. 

Accordingly, I find that the ALJ correctly found that the error of judgment defense did 

not apply. 

III. 

The Misconduct count is subsumed by the Negligence count since both arise from the 

same operative facts. 
McCARTHY NO. 2680 

 

11

Respondent listed this as a basis for appeal, but provided no supporting argument 

other than improperly characterizing Misconduct as “a lesser included offense” of 

Negligence. A lesser included offense is a concept of criminal law in which all the 

elements of the lesser offense are included in the greater offense and the common 

elements are identical. Misconduct is human behavior which violates some formal, duly 

established rule whereas negligence is an act that a reasonably prudent person under the 

same circumstances would not commit. 46 C.F.R. §§ 5.27 and 5.29. Since the 

“elements” of these two charges differ, Misconduct cannot be characterized as a lesser 

included offense of Negligence. Nevertheless, I will consider the fact that the gravamen 

of both charges is piloting the CHARLESTON at excessive speed past the LNG facility 

in considering whether the sanction imposed is excessive. 

IV. 

The sanction of eight months suspension outright is excessive. 

Respondent’s final assertion of error centers on the eight-month outright 

suspension imposed by the ALJ. Respondent asserts that “[i]n rejecting the Coast 

Guard’s request for revocation...the ALJ necessarily rejected the concept that 

Respondent is a threat to marine safety.” [Appeal Brief of Respondent at 27] In 

addition, Respondent notes that the Coast Guard’s Chief ALJ expressly noted the “depth 

and sincerity of Respondent’s remorse” in his Order that Granted Respondent a 

Temporary License during the pendency of this case. [Id.] At the same time, after noting 

that the ALJ elected to treat Respondent as a “First-Time Offender,” Respondent asserts 

based on his analysis of enforcement actions taken after other incidents on the Savannah 

River, that there is a “lack of parity” in cases that result from incidents on the Savannah 
McCARTHY NO. 2680 

 

12

River and, as such, contends that Respondent “has been discriminated against (due to his 

status as a federal-only pilot)...in terms of the sanction levied by the ALJ.” [Appeal 

Brief of Respondent at 29] Respondent concludes by noting that the sanction imposed as 

a result of the catastrophic EXXON VALDEZ oil spill was only one month greater than 

the sanction imposed in this case and asserts that because only $110,000 in property 

damage occurred as a result of the incidents given rise to this case—not an actual disaster 

and billions of dollars in environmental and other losses—the record supports a 

conclusion that the sanction imposed by the ALJ was “impermissibly penal in nature.” 

[Appeal Brief of Respondent at 27-30] I do not agree. 

In Coast Guard suspension and revocation cases, the sanction imposed in a 

particular case is exclusively within the authority and discretion of the ALJ. See 46 

C.F.R. § 5.569(a); Appeal Decisions 1998 (LE BOEUF), 2543 (SHORT) , 2609 

(DOMANGUE), 2618 (SINN), and 2622 (NITKIN). While the ALJ may look to 46 

C.F.R . Table 5.569 for information and guidance as to the typical order associated with a 

charge, he may increase or decrease the sanction as he sees fit. See 46 C.F.R. § 5.569(d); 

Appeal Decisions 2173 (PIERCE), 2362 (ARNOLD), 2391 (STUMES), 2455 

(WARDELL), 2618 (SINN), and 2622 (NITKIN). As a result, on appeal the sanction 

imposed by the ALJ will only be modified if it is clearly excessive or involves an abuse 

of discretion. Appeal Decisions 2245 (MATHISON), 2256 (BURKE), 2313 (STAPLES), 

2362 (ARNOLD), 2366 (MONAGHAN ), 2391 (STUMES), 2422 (GIBBONS), 2423 

(WESSELS), and 2618 (SINN). 

 In this case, the record shows that the ALJ carefully considered the issue of 

sanction. Indeed, the record shows that to do so, the ALJ took the extraordinary step of 
McCARTHY NO. 2680 

 

13

holding a second hearing to allow both Respondent and the government the opportunity 

to submit evidence in aggravation and mitigation. After hearing such argument and 

noting his inherent authority to select an appropriate order in the case, the ALJ stated as 

follows with regard to the sanction: 

In this case, the Coast Guard is seeking revocation. In determining 

whether revocation is the appropriate sanction for offenses for which 

revocation is not mandatory, an ALJ should consider a Respondent’s prior 

records. As previously discussed, since there was no evidence that 

Respondent has had a prior incident less than ten years ago, he will be 

treated as a first time offender for the strict purpose of determining the 

appropriate sanction in this case. For first time offenders and without 

considering other factors, the Table of Average Orders suggests a 

suspension of up to six months for negligently performing duties related to 

vessel navigation and up to three months for misconduct predicated on a 

failure to comply with U.S. law or regulations. 

In this case, the damage and potential damage that Respondent caused by 

his actions must be weighed against Respondent’s good record and 

apparent remorse for his actions. Respondent’s actions indeed caused 

significant damage, and I cannot stress enough that Respondent’s actions 

could have resulted in massive disaster. However, Respondent’s good 

track record and apparent remorse are sufficient to convince me that he is 

not a danger to life and property at sea. While not enough to reduce the 

sanction to a warning as Respondent proposed, these mitigating factors are 

sufficient to keep the sanction within the standard range of sanctions for 

these offenses as contemplated by the Table of Average Orders. 

Revocation is therefore not appropriate in this case. (citations omitted) 

 

[D&O II at 5-6] 

Therefore, the record shows that although revocation was a permissible sanction, 

the ALJ chose to exercise leniency and impose only an eight month suspension. Since 

the sanction imposed by the ALJ is within the range articulated by the Coast Guard’s 

Table of Average Orders and because the record shows that the ALJ considered all 

aggravating and mitigating evidence presented in settling on the appropriate duration of 

the sanction, I do not find it to be either excessive or involving an abuse of the ALJ’s 
McCARTHY NO. 2680 

 

14

discretion. Accordingly, Respondent’s final argument is wholly unpersuasive. 

CONCLUSION 

The findings of the ALJ had a legally sufficient basis. The ALJ’s decision was not 

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

probative evidence existed to support the findings of the ALJ. Therefore, I find 

Respondent’s bases of appeal to be without merit. 

ORDER

 The orders of the ALJ, issued at Norfolk, Virginia, on November 29, 2006, and 

December 28, 2006, are AFFIRMED.

 /S/ 

Signed at Washington, D.C. this 8th of April, 2008.