NEGLIGENT OPERATIONS - ESTABLISHING THE STANDARD OF 

CARE 

Written by CDR Mark Hammond

The Hearing Office Newsletter previously featured information pertaining to 

cases involving negligent operations. (See Newsletter Volume 9 – October 

2010, “K N O T” #1.) The article very briefly touched on the key factual 

elements needed to be shown in order for Hearing Officers to find prima facie 

evidence of a violation under Title 46 United States Code (U.S.C.), Section 

2302(a). A recent appeal decision in which a civil penalty case involving 

negligent operations was dismissed for lack of evidence of the “standard of 

care” prompts further discussion of these types of cases. This article will briefly 

revisit the elements of 46 U.S.C. § 2302(a) and review what constitutes 

negligence, focusing on the importance of establishing the standard of care 

applicable to the circumstances of each case.

46 U.S.C. § 2302(a) provides that a person operating a vessel in a negligent 

manner or interfering with the safe operation of a vessel, so as to endanger the 

life, limb, or property of a person is liable to the U.S. Government for a civil 

penalty. In order to show a violation occurred under this cite, there must be 

evidence to show that the charged party in fact: 1) operated a vessel; 2) in a 

negligent manner; and, in doing so, 3) endangered the life, limb or property of a 

person. 

In most cases, presenting evidence identifying the vessel operator and showing 

how persons or property were endangered is fairly straightforward. 

Occasionally, however, showing how a person’s actions were negligent can be 

more challenging.

So, what is negligence? Regulation 33 CFR § 5.29 defines negligence 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.” To sum it up: It is 
the failure to use such care as a reasonably prudent and careful person would 

use under similar circumstances. 

Before showing that a person failed to use such care as a reasonably prudent 

and careful person would use under similar circumstances, the “standard of 

care” applicable to the circumstances of the case must first be firmly 

established. In other words, the case file must show evidence of what was 

expected of the vessel operator under the then-existing circumstances. The 

standard of care can be established in a number of ways, such as reference to 

existing laws or regulations such as the Navigation Rules, or navigation safety 

regulations which require specific actions under specific conditions. For 

example, the standard of care may require adherence to: posted “No 

Wake/Speed” zones; a state law prohibiting “bow riding”; or a state law 

restricting vessel operations in close proximity to “diver-down” flags. 

Applicable or persuasive court decisions may recognize a presumption of 

negligence when certain things occur that generally do not happen in the 

absence of negligence, such as vessel groundings, or when a moving vessel 

allides with a fixed object, such as a bridge or a charted stationary navigational 

aid. In such cases, the presumption of negligence will make it unnecessary to 

further address the standard of care.

In situations where the applicable standard is not so obvious, a standard of care 

may be established by submission of expert witness testimony concerning 

generally accepted marine practices. Coast Guard witnesses may provide 

evidence of a standard of care, if the witness is shown to have sufficient 

expertise in the particular subject matter. Such evidence must have a sound 

basis, however, and be supported by something more than conclusory 

statements of disapproval for certain conduct.

To sufficiently address the negligence element, the case file should contain: 1) 

evidence of the applicable standard of care as described above; and 2) evidence 

showing how the charged party failed to follow the applicable standard. As 

always, each element is essential to the Hearing Officer’s determination as to 

whether the alleged violation did, or did not, occur as alleged. Evidence clearly 

addressing the negligence element also provides the charged party with a good 

understanding of the basis for the alleged violation(s) against him/her, and 

allows for a more meaningful opportunity to respond with evidence in his/her 

defense, or to present extenuating or mitigating factors for consideration.