UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

VS. 

JOHN C. MCCARTHY 111 

Respondent 

Docket Number: CG S&R 06-0192 

CG Case No. 2616092 

Issued: November 29.2006 

Issued bv: Peter A. Fitmatrick Administrative Law Judge 

Avvearances: 

For Complainant 

CWO Bernard Tufts 

CWO Terry Roberts 

PO Michael Rohland 

United States Coast Guard 

Marine Safety Unit 

100 W. Oglethorpe Avenue 

Savannah, GA 31401 

For Respondent 

Charles H. Raley, Jr. Esquire 

Portman & Raley, LLC 

P.O. Box 9087 

Savannah, GA 31412 
I . 

TABLE OF CONTENTS 

TABLE OF CONTENTS .............................................................................................................. 2 

PRELIMINARY STATEMENT ................................................................................................. 5 

FINDINGS OF FACT ................................................................................................................... 7 

A . Stipulated Facts .......................................................................................................... 7 

B . Other Facts of Record .................................................................................................. 8 

DISCUSSION .............................................................................................................................. 16 

A . General ........................................................................................................................ 16 

B . Allegations ................................................................................................................. 17 

C . Negligence ................................................................................................................. 17 

I . General ............................................................................................................. 18 

I1 . Pleading ........................................................................................................... 19 

111 . Rule 6 ............................................................................................................. 20 

IV . Minimum Safe Speed .................................................................................... 21 

1 . General Meaning ................................................................................... 21 

2 . CHARLESTON'S Specific Minimum Safe Speed ............................... 22 

3 . Breach of Minimum Safe Speed ........................................................... 23 

4 . Respondent's Definition of Minimum Safe Speed ............................... 23 

V General Defenses . to Negligence .................................................................... 27 

I . Previous Passing Without Incident ....................................................... 27 

2 . Reliance Defenses ................................................................................. 28 

3 . Error in Judgment Defense ................................................................... 31 
VI . General Practice for Speed near the LNG Terminal ................................ 32 

D . Misconduct .................................................................................................................. 35 

1 . Coast Pilot ....................................................................................................... 35 

11 . 33 CFR 162.65(b)(3) ....................................................................................... 36 

ULTIMATE FINDINGS AND CONCLUSIONS OF LAW ................................................... 37 

ORDER ........................................................................................................................................ 39 

ATTACHMENT A - WITNESS AND EXHIBIT LIST .......................................................... 40 

A . Witness Lists ............................................................................................................... 40 

I . Agency's Witnesses .......................................................................................... 40 

I1 . Respondent's Witnesses .............................................................................. 40 

... B . Exhlblt Llsts ................................................................................................................ 40 

I . Judge's Exhibits . ALJ 1 through ALJ 3 ..................................................... 40 

I1 . Agency Exhibits . 10-1 through 10-12 ..................................................... 40 

111 . Respondent's Exhibits . R-A through R-Q ................................................ 41 

ATTACHMENT B - COMPLAINANT'S PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW ...................................................................................................... 43 

ATTACHMENT C - RESPONDENT'S PROPOSED FINDINGS OF FACTS AND 

CONCLUSIONS OF LAW ..................................................................................................... 45 

. . A. Proposed Flndrngs of Fact ......................................................................................... 45 

B . Proposed Conclusions of Law ................................................................................... 53 

ATTACHMENT D . STATUTES AND REGULATIONS INVOLVED ............................ 72 

A . Statutes ........................................................................................................................ 72 

B . Regulations .................................................................................................................. 76 
ATTACHMENT E - SUBPART J ..................................... .. .............................................. 98 

Certificate of Service ................................................................................................................ 101 
11. 

PRELIMINARY STATEMENT 

On April 27, 2006, the United States Coast Guard ("Coast Guard") filed a complaint 

against Respondent, Captain John C. McCarthy I11 ("Captain McCarthy" or "Respondent") 

alleging that he violated 46 U.S.C. 7703,46 CFR 5.29, and 46 CFR 5.33 by failing to operate the 

tank vessel CHARLESTON at a safe speed on the Savannah River. The essence of the Coast 

Guard's claim is that Respondent should not have navigated the CHARLESTON past the 

Southern Liquid Natural Gas, Inc. ("LNG") facility at full ahead while there was an LNG 

tankship within its slip. The Coast Guard sought twelve (12) months outright suspension 

followed by six (6) months suspension remitted on twelve (12) months probation. 

On May 16,2006, Respondent filed an Answer to the Coast Guard's complaint which 

denied that he operated negligently by failing to operate at a safe speed. Respondent also denied 

that his actions were the sole cause of the alleged damage and denied the paragraph regarding 

requested penalty. Respondent admitted all other paragraphs. Respondent affirmatively alleged 

the defense of "other" and specified that the Respondent's actions amount to a mere error in 

judgment. Respondent requested a hearing and proposed a location and dates. Respondent 

requested settlement discussions. 

On June 13, 2006, the Coast Guard filed an Amended Complaint alleging that 

Respondent violated 46 U.S.C. 7703 by committing Misconduct and Negligence under 46 CFR 

5.27 and 46 CFR 5.29 respectively. The underlying factual allegations were essentially the same 

in that the Coast Guard alleged that Respondent failed to operate the tank vessel CHARLESTON 

at a safe speed on the Savannah River past the LNG tankship within its slip. The Coast Guard 

did not amend its proposed sanction at this time. 
Following a grant for an extension of time, Respondent filed his Answer to the Coast 

Guard's Amended Complaint on July 7,2006. Respondent denied various numbered paragraphs 

contained therein and indicated the defense of "other" in that his actions constituted an error in 

judgment. Finally, he stated that the Coast Guard's allegations concerning damage are not 

relevant and should be stricken from the amended complaint. 

This matter was set for hearing on September 20,2006 at 9:30 am in Savannah Georgia. 

This date, location, and time were amenable to all parties involved as was evident from an 

August 8,2006 prehearing conference call and from various other requests and filings. On that 

date, the hearing convened as scheduled and spanned two days. CWO Bernard Tufts, CWO 

Terry Roberts, and PO Michael Rohland represented the Coast Guard, and Charles H. Raley, Jr. 

represented Respondent. 

At the hearing, the Coast Guard called seven (7) witnesses and introduced into evidence 

twelve (12) exhibits. Respondent called three (3) witnesses and introduced into evidence 

seventeen (17) exhibits. The undersigned took official notice of two (2) documents. The parties 

also filed Joint Stipulations of Facts prior to the hearing and Proposed Findings of Facts and 

Conclusions of Law after the hearing.' 

It is worthy to note that both parties filed numerous Motions, Motion Withdrawals, 

Oppositions, Briefs, and Responses during the course of this proceeding. Each filing has been 

given careful consideration and appropriate weight in deciding the outcome of this case. Only 

the relevant filings will he discussed in this Decision and Order. 

' Coast Guard exhibits are identified as "Ex. 10 using numerical numbers. Respondent's exhibits are identified as 

Ex. R" using alphabetic letters. Documents the undersigned has taken official notice of are identified as "ON" using 

numerical numbers. Filings prior to and post hearing are identified as "ALJ" using numerical numbers. All 

citations to the official transcript are designated by +'TR." followed by the applicable page numbers. 
FINDINGS OF FACT 

A. Stipulated Facts 

On September 15,2006, the parties filed the following Joint Stipulations of Agreed Facts: 

That the tank ship CHARLESTON is 635.5 ft in length and 27,798 GT. 

That the CHARLESTON is an officially documented vessel of the United States, 

(0.N. 658493). 

That on March 14,2006, the respondent, JOHN C. MCCARTHY 111, was sewing as 

Pilot on board the CHARLESTON, as required by 46 Code of Federal Regulations 

(CFR) $ 15.812 (a). 

That the respondent, JOHN C. McCARTHY 111 did sign the TN CHARLESTON'S 

Pilot Card dated 3-14-2006 along with the Master. 

That the TN CHARLESTON'S Pilot Card states engine RPM for maneuvering 

engine orders ranging from full astern to full ahead. The minimum RPM is 30 (5.5 

knots). 

That the respondent, JOHN C. MCCARTHY 111, did slow the CHARLESTON to 

slow ahead while passing the Coast Guard and the Pilot Stations along the Savanwdh 

River on March 14,2006. 

That on March 14,2006, at approximately 0418, the CHARLESTON was transiting 

the Savannah River. 

That on March 14,2006, at approximately 0418, the CHARLESTON was enroute to 

Conoco Phillips. 

That on March 14,2006, at approximately 0418, there was a .5 or a half - knot flood 

current. 

That on March 14,2006 at approximately 0418 the LNG tank ship GOLAR FREEZE 

was moored at the LNG Terminal located on Elba Island. 

That the respondent, JOHN C. MCCARTHY 111, while transiting the Savannah River 

and having the conn of the CHARLESTON did not slow the CHARLESTON down 

while passing by the moored LNG tank ship GOLAR FREEZE at approximately 

0418 on the morning of March 14,2006. 

That the TIV CHARLESTON piloted by respondent, JOHN C. MCCARTHY 111, did 

pass by the moored LNG tank ship GOLAR FREEZE at approximately 0418 under 

an engine order of full ahead. 

That on March 14,2006, at approximately 0418, the moored LNG tank ship GOLAR 

FREEZE did surge along the dock face after the T/V CHARLESTON passed by at 

full ahcdd. 

That on March 14,2006 at approx 0418 the weather conditions on the Savannah 

River included clear skies, visibility of at least 10 nautical miles and winds of less 

than 15 mph. 

That after embarking the TN CHARLESTON, respondent, JOHN C. MCCARTHY 

111 gave two security broadcasts each on VHF Channels 13 and 16; the first broadcast 
was given while the CHARLESTON was entering the Tybee Range and the second 

was given while the CHARLESTON was entering the Long Island Crossing ~an~e.' 

B. Other Facts of Record 

After careful consideration of the entire record and the testimony at the hearing, the 

undersigned finds the following facts. 

1. On March 14,2006 at approximately 0418, the tank vessel CHARLESTON under 

Captain McCarthy's engine order of full ahead navigated inbound on the Savannah River 

past the LNG terminal with an LNG tankship within its slip. ALI 1 para. 11,12. At this 

exact time or immediately thereafter, the LNG tankship surged along the dock face and 

damage ensued. ALJ 1 para. 13; TR. 213. 

2. At. the time of the incident, Respondent, Captain John C. McCarthy 111 was the holder of 

a Coast Guard issued License number 1042660 expiring May 2008. Respondent's 

license has the following endorsements: Master of Towing Vessels upon the Great Lakes, 

inland waters in the western rivers; Mate of towing vessels upon near coastal waters; First 

Class Pilot of vessel of any gross tons upon the waters of the Savannah River, Georgia, 

from the principal harbor entrance buoy to Port Wentworth turning basin; Radar Observer 

Unlimited on vessels under 200 gross tons, domestic tonnage, 500 gross tons, ITC 

tonnage, on domestic voyages only. TR. at 7; ALJ 1 para. 3; ALT 2 para. 1; AW 3 para. 

3. At approximately 0300 on the day in question, Captain McCarthy boarded the tankship 

CHARLESTON in the vicinity of the sea buoy where the Savannah River meets the 

The parties originally stipulated that Respondent gave the second broadcast as he was entering thc Lower Flats 

Range. Respondent indicated at the hearing that this was a mistake and moved to replace Lower Flats Range with 

Long Island Crossing Range. The amendment was made without objection. TR. 29-30. 
Atlantic Ocean. TR. 65. He served as Pilot on board the CHARLESTON as 46 CFR 

15.812(a) requires and sewed aboard for his local knowledge of the Sava~ah River for 

the transit inbound on the Savannah River to Conoco Philips. ALJ 1 para. 3,7-8; TR. 65, 

96. 

4. The CHARLESTON is a tankship 635.5 feel in length, 27,798 gross tons, and an 

officially documented vessel of the United States, (O.N. 658493). ALT 1 para. 1-2. 

5. On the day in question, Captain Gregory Maxwell was serving as Master onboard the 

CHARLESTON. TR. 63-64. Captain Maxwell holds a U.S. Coast Guard Master's 

license for Unlimited Tonnage on the Oceans. TR. 59. He has been a Coast Guard 

licensed captain for three and a half years. TR. 64. 

6. Captain Maxwell was in overall charge of the CHARLESTON, but Captain McCarthy 

was navigating the vessel on the Savannah River and giving engine orders and rudder 

commands because of his local knowledge. TR. 64-65. 

7. At the time of the incident, the LNG tankship GOLAR FREEZE was moored at the LNG 

Terminal located on Elba Island along the Savannah River and was in the process of an 

active liquid natural gas transfer. ALJ 1 para. 10. 

8. Shortly after Captain McCarthy embarked the CHARLESTON, but before approaching 

the LNG terminal, Captain Maxwell and Captain McCarthy had an initial Pilot-Master 

conference. TR. 67. At that time, they discussed whether the CHARLESTON would 

need to slow before passing the LNG terminal because of the LNG tankship moored 

within its slip. Captain McCarthy indicated that there were minimal requirements 

and that they would proceed at full ahead despite the LNG tankship moored within its 

slip. TR. 333. 
9. After starting inbound on the Savannah River, but prior to passing the moored LNG 

tankship, Captain McCarthy slowed the CHARLESTON to slow ahead while passing the 

Coast Guard and Pilot Stations. AW 1 para. 6; TR. 338. Captain McCarthy slowed the 

CHARLESTON at this point to avoid potential damage the CHARLESTON'S surge 

could cause to unattended vessels moored there. 

10. The engine setting slow ahead on the CHARLESTON produces approximately 6 knots. 

TR. 493. 

11. After passing the Coast Guard and Pilot Stations, but before reaching the point on the 

Savannah River where the LNG tankship GOLAR FREEZE was moored, Respondent 

gave the engine order full ahead and the CHARLESTON began increasing speed. TR. 

339. 

12. After reaching speed at full ahead, but before reaching the LNG terminal, the 

CHARLESTON made radio contact with the KOBE EXPRESS. Captain McCarthy 

made passing arrangement with its Pilot and the two vessels successfully passed at 

Bloody Point on the Savannah River. TR. 334. 

13. After passing the KOBE EXPRESS, but before reaching the LNG facility, Captain 

McCarthy made the second of two security broadcasts each on VHF Channels 13 and 16 

announcing his presence and intended course up the Savannah River. He gave the first 

broadcast while the CHARLESTON was entering the Savannah River at the Tybee 

Range. AW 1 para. 15; TR. 66. 
14. After the second broadcast, but before reaching the LNG tankship GOLAR FREEZE, 

Captain Spencer Edleman spoke with Captain McCarthy to agree upon a passing 

arrangement between the CHARLESTON and the Tug TARPON.^ TR. 163. 

15. Captain Edleman has been a Savannah River Pilot for 22 years and was piloting the Tug 

TARPON at the time in question. TR. 162-3. The Tug TARPON was outbound on the 

Savannah River and had an asphalt barge in tow. TR. 164. The two captains formed a 

passing arrangement by which the CHARLESTON and the TARPON would meet and 

pass below the Fig Island Turning Basin. TR. 164. The Fig lsland Turning Basin is a 

zone of the Savannah River the CHARLESTON would reach after passing the LNG 

facility. Ex. 10-D. 

16. Captain Edleman testified that the TARPON "is not that big." TR. 169. He further 

testified that because of this the TARPON and barge in tow could have easily met and 

passed the CHARLESTON at another agreed upon point on the Savannah River even if 

the CHARLESTON slowed while passing the LNG tankship. TR. 169. 

17. Shortly thereafter at approximately 0418, the CHARLESTON passed the moored LNG 

tankship GOLAR FREEZE under Captain McCarthy's engine order of full ahead. ALT 1 

para.13. Captain McCarthy did not make contact with the LNG terminal or the GOLAR 

FREEZE at its slip before passing at full ahead. 

18. The CHARLESTON'S full ahead engine setting generally produces approximately 14 

knots. TR. 490. The CHARLESTON'S half ahead engine setting generally produces 

approximately 10 knots. TR. 355. 

"he transcript refen to this tug as the "TARPIN." The correct spelling is TARPON, 
19. At this exact time or immediately after the CHARLESTON passed the LNG facility, the 

LNG tankship surged along the dock face and damage to the LNG tankship's lines and 

gangway ensued. ALJ 1 para. 13; TR. 213. The CHARLESTON'S surge was a cause of 

this damage. 

20. At the time in question, the weather conditions on the Savannah River included clear 

skies, visibility of at least 10 nautical miles, and winds of less than 15 mph. ALT 1 para. 

14. 

21. At the time of the incident, there were no vessels crossing, meeting, or overtaking the 

CHARLESTON. TR. 94. 

22. Captain Robert Thompson is and has been a river Pilot for Savannah for five years. TR. 

100. Captain Thompson's general practice is to pass any moored vessels as slow as 

possible as to not cause a surge. TR. 101. His practice when passing the LNG terminal 

with an LNG tankship within its slip is to give the engine order of dead slow or stop as to 

pass as slow as possible and not cause a surge. TR. 101-4. Captain Thompson could not 

testify as to the specifics of why the LNG terminal is dangerous when there is an LNG 

tankship within its slip. TR. 104. Rather he has a general knowledge of the relative 

danger and thus proceeds with caution when passing. TR. 104. 

23. A vessel can create a surge under the surface without any visible wake. TR. 102. 

24. Captain Robert Thompson observed the CHARLESTON on his AIS system passing by 

the LNG terminal at the time in question at 14.2 knots. AIS is a tracking system and 

provides information on vessels in the area based on a global positioning system. It plots 

the vessel name, the location, course, speed, draft length, and other vessel information. 

TR. 107-8. 
25. Captain Robert Thompson remembered the CHARLESTON'S exact speed at the time in 

question because he was surprised and apprehensive that a tankship was about to pass an 

LNG tankship moored at the LNG facility at 14.2 knots. TR. 108. 

26. Captain Robert Thompson believes that bare steerageway is the same as minimum safe 

speed. TR. 112. 

27. Douglass G. Logan is a first class Pilot for the bar and harbor of Charleston, South 

Carolina. TR. 135. He has been a licensed Pilot since 2000. Id. His belief is that the 

most important thing to consider when passing a moored vessel is speed. He slows to 

bare steerageway when passing any moored vessel. 

28. The docking pilot on duty at the LNG facility observed the CHARLESTON traveling at 

14.8 knots on his GPS system when it passed the LNG facility at the time in question. 

TR. 226. 

29. On December 20,2005, the U.S. Coast Guard Captain of the Port Savannah issued a 

Marine Safety Information Bulletin ("MSIB") setting policy for certain vessels when 

passing the LNG terminal under certain conditions. Ex. R-K. The MSIB states that when 

an LNG tankship is present within the slip, vessels 1600 gross tons or greater shall transit 

at "minimum safe speed." Ex. R-K. After the day in question, the U.S. Coast Guard 

Captain of the Port Savannah amended MSIB 13-05 replacing the term minimum safe 

speed with the term "bare steerageway." Ex. R-L. 

30. Captain McCarthy had knowledge that minimum safe speed was the prevailing standard 

of care for the CHARLESTON to pass the LNG terminal at the time in question. TR. 

355. 
31. The term minimum safe speed is not defined or assessed a specific numerical value and 

varies from vessel to vessel. TR. 148,503. Mariners navigating the Savannah River 

understand the term to mean bare steerageway. TR. 112,503. 

32. Captain McCarthy believes that his speed was hypothetically negligent had bare 

steerageway been the prevailing standard of care for the CHARLESTON to pass the 

LNG facility with an LNG tankship moored within its slip. TR. 366. 

33. Richard Knox is a cross functional technician at the LNG terminal. TR. 208. He is in 

charge of operation and maintenance of the LNG terminal. TR. 208. 

34. Passing the LNG terminal with an LNG tankship within its slip is more dangerous than 

passing other moored vessels. TR. 153. 

35. Liquid natural gas is regular natural gas condensed 600 times converting it from a gas 

form to a liquid form by cryogenically freezing it to minus 260 degrees. TR. 217-19. 

This is done to increase shipping efficiencies. TR. 218. If liquid natural gas is exposed 

to the environment, its vapors are highly inflammable. TR. 220. Liquid natural gas 

coming in contact with human skin would cause instant frost bite and could result in loss 

of appendages. TR. 220. 

36. The Savannah River is approximately 700 to 1000 feet wide at the LNG terminal. TR. 

507. The CHARLESTON was approximately 300 to 500 feet from the LNG terminal 

when it passed at full ahead. TR. 507. 

37. A surge from a passing vessel can cause a vessel moored in the LNG slip to thrust 

forward and back and disrupt a liquid natural gas transfer by breaking transfer hoses and 

other equipment. TR. 227-28. The faster a vessel travels, the more surge it creates. TR. 

125. 
38. At 14.2 knots, CHARLESTON'S surge can be felt from two and one half miles away. 

TR. 319. 

39. Captain McCarthy thought there was a possibility that the GOLAR FREEZE would hold 

in the terminal had standby tugs been in place. TR. 449. 

40. Captain McCarthy believed there would be standby tugs in place bases on an alleged 

prior conversation with the docking pilot by which the docking pilot apparently told him 

that there would be standby tugs in place twenty four hours per day. TR. 334. 

41. There is general knowledge in the Savannah maritime community that it is prudent to 

navigate slowly and with great caution past the LNG terminal when there is an LNG 

tankship within its slip. TR. 162-3. 

42. Captain Edleman makes a practice of passing any moored vessel at dead slow. TR. 162. 

He makes a practice of passing the LNG terminal at no faster than 6 knots when there is 

an LNG tankship within its slip. TR. 162. 

43. Captain Logan has previously piloted the CHARLESTON and makes a practice of 

reducing his speed to no more than 6 knots when passing any moored vessel. TR. 138. 

Captain Logan testified that 12-14 knots was too fast for the CHARLESTON to pass the 

LNG terminal with an LNG tankship within its slip. TR. 151. 

44. Captain McCarthy believes that the LNG terminal is a hazard to navigation when there is 

an LNG tankship within its slip and no tugs on standby. TR. 365. 

45. The CHARLESTON was putting out minimal wake at the time in question. TR. 337. 

46. Captain Steve Harvey had previously worked on the CHARLESTON. He was not 

intimately familiar with the Savannah River as he is primarily a Florida Pilot. TR. 479. 
Captain Harvey has never passed the LNG terminal or worked on standby in Savannah. 

TR. 501. 

47. Captain McCarthy previously passed the LNG facility with an LNG tankship within its 

slip with the CHARLESTON at full ahead with no incident. TR. 323. Captain McCarthy 

believes that the reason there was no incident on this voyage was that there were standby 

tugs pushing the LNG tankship. TR. 323. 

IV. 

DISCUSSION 

A. General 

This Suspension and Revocation proceeding is remedial and not penal in nature and is 

"intended to help maintain the standards of competence and conduct essential to the promotion 

of safety at sea." 46 CFR 5.5. The Coast Guard has jurisdiction over Respondent and this matter 

pursuant to 46 U.S.C. § 7703, which states that a merchant mariner's document may be 

suspended or revoked if the mariner has committed an act of misconduct or negligence while 

acting under the authority of such document. The Coast Guard has the burden of proving the 

allegations of the Complaint by a preponderance of the evidence. 33 CFR 20.701-02. See also 

Appeal Decision Nos. 2468 (LEWIN); 2477 (TOMBARI); Deut. of Labor v. Greenwich 

Colleries, 512 U.S. 267 (1994); Steadman v. SEC, 450 U.S. 91,101-3 (1981). 

To prevail under this standard, the Coast Guard has the burden to establish that it is more 

likely than not that the Respondent committed the violations alleged in the compliant. See 

Herman & MacLean v. Huddleston, 459 U.S. 375,390 (1983); 33 CFR 20.701-702(a). To 

satisfy the burden of proof, the Coast Guard may rely on direct andlor circumstantial evidence. 

- See ~enerallv, Monsanto Co. v. Sprav-Rite Sew. Carp., 465 U.S. 752,764-765 (1984). The 
proceeding is conducted under the provisions in 33 CFR Parts 20,46 CFR Part 5, and the 

Administrative Procedure Act, 5 U.S.C. 5 551 &. s. 

B. Allegations 

The Coast Guard charged Respondent with Negligence and Misconduct under 46 CFR 

5.27 and 5.29 respectively. The Coast Guard alleges that on March 14,2006, Respondent 

navigated the vessel CHARLESTON at an excessive speed on the Savannah River past the LNG 

terminal while an LNG tankship was present within its slip and in the process of a liquid natural 

gas transfer. (Cite to Amended Complaint Here). 

These charges cannot be found proved unless the Coast Guard establishes that 

Respondent was acting under the authority of his Coast Guard license during the alleged 

Negligence and Misconduct. 46 U.S.C. 7703(1). "A person employed in the service of a vessel 

is considered to be acting under the authority of a license . . . when the holding of such license . . 

. is [rlequired by law or regulation." 46 CFR 5.57. The parties have stipulated that Respondent 

was serving as Pilot on board the CHARLESTON as required under 46 CFR 15.812 on March 

14,2006 during the alleged Negligence and Misconduct. Respondent was therefore acting under 

the authority of his Coast Guard license at all relevant times. 

C. Negligence 

The Coast Guard alleges that Respondent was negligent in navigating the vessel 

CHARLESTON at an excessive speed past the LNG terminal while an LNG tankship was 

present within its slip and in the process of a liquid natural gas transfer. Respondent admits he 

was aware of the LNG tankship's presence in the slip and of the impending transfer, but 

maintains that his engine order of full ahead did not produce an excessive speed. TR. 67,333. 
The first question is Respondent's actual speed at the time in question. Respondent did 

not stipulate to and was not certain of his actual speed while passing the LNG terminal. ALJ 1. 

Respondent did, however, testify that the CHARLESTON was at full ahead and that the 

CHARLESTON runs at 10 knots at half ahead. TR. 355. Full ahead on the CHARLESTON 

must therefore be well in excess of 10 knots. 

Indeed, Coast Guard witness Robert Thompson, a riverboat captain, testified that he 

followed the CHARLESTON on his global positioning system at the actual time in question and 

recalled that Respondent's speed was 14.2 knots. TR. 108. Captain Thompson's testimony was 

that he remembered the CHARLESTON'S exact speed because he was shocked that a large 

tanker was about to pass the LNG terminal at 14.2 knots with an LNG tankship within its slip. 

Captain Thompson's testimony is consistent with Respondent's witness Captain Steve Harvey's 

testimony that the CHARLESTON runs at "about 14" knots at full ahead on the Savannah River. 

TR. 491. Since Respondent stipulated and freely admits that the CHARLESTON was at full 

ahead, and in light of the aforementioned testimony at hearing, one can reasonably find by the 

facts presented in this case by a preponderance of the evidence that the CHARLESTON'S actual 

speed at the time in question was 14.2 knots. The outcome of this case then depends on whether 

it was negligent for Respondent to navigate past the LNG terminal with an LNG tankship within 

its slip at 14.2 knots under the prevailing circumstances. 

I, General 

In Coast Guard cases, negligence is "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." 46 CFR 5.29. In order to "prove the charge of 
negligence, it is necessary to prove that [Respondent's] conduct, in some manner, failed to 

conform to the standard of care required of the reasonably prudent master under the same 

circumstances." Appeal Decision 2642 (RIZZO) (2003), Auoeal Decision 2321 (HARRIS) 

(1983), Appeal Decision 2282 (LITTLEFIELD) (1982). 

The Coast Guard asserted two alternative theories of standard of care. In the Coast 

Guard's Amended Complaint, it alleged that Respondent exceeded "minimum safe speed" as set 

forth in a MSIB. At the beginning of the hearing, the Coast Guard amended its Amended 

Complaint to remove the language regarding "minimum safe speed" as the MSIB requires and 

added language that Respondent was negligent because he did not proceed at a "safe speed" as 

Rule 6 requires. This amendment at hearing came without objection. At the hearing both sides 

offered extensive evidence and testimony regarding both theories of standard of care. 

11. Pleading 

It is important to note that this proceeding is not "rigidly bound by the procedural rules 

governing criminal and civil trials." A~peal Decision 2639 (HAUCK) (2003) (citing Kuhn v. 

C.A.B., 183 F.2d 839 (D.C. Cir. 1950). With respect to pleadings, the "purpose. . . is to provide 

notice and not make a ritualistic recitation of the details." Appeal Decision 2585 (COULON) 

(1997). It is, however, important that the allegations "must be adequate to enable the respondent 

to identify the act or offense alleged so that a defense can be prepared." Appeal Decision 2585 

(COULON) (1997). Thus, ''[flindings 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 

[Respondent] has actual notice and the questions are litigated." Avueal Decision 2581 

(DRIGGERS) (1996), Appeal Decision 2422 (GIBBONS) (1982). 
In this case, it is clear that Respondent had notice to identify the act or offense alleged 

and to prepare an adequate defense under both theories of standard of care. The amendment 

removing the language regarding "minimum safe speed" came at the actual hearing. Respondent 

therefore had actual notice and could prepare an adequate defense for "minimum safe speed" as 

the applicable standard of care. Respondent offered multiple exhibits and indeed put on a 

vigorous defense regarding this issue. With respect to preparing a defense for Rule 6 "safe 

speed as the applicable of standard of care, Respondent put on a vigorous defense to this theory 

standard of care as well and in fact did not object to the amendment. He must have therefore 

anticipated this amendment or at least that the issue would arise. In any case, the question of 

whether Respondent had adequate notice for preparing a defense to violating Rule 6 is moot as 

discussed in the following section. Thus, a technical and narrow reading of the Complaint will 

not be dispositive in this matter and the undersigned will analyze this case under both theories 

respectively. 

111. Rule 6 

The Coast Guard amended its Complaint at the hearing to allege that Respondent 

"negligently operated the tank vessel CHARLESTON by failing to operate at a safe speed 

appropriate to the prevailing circumstances in violation of Rule 6 of the Inland Navigational 

Rules." Rule 6 requires that "[elvery vessel shall at all times proceed at a safe speed so that she 

can take proper and effective action to avoid collision and be stopped within a distance 

appropriate to the prevailing circumstances and conditions." 33 U.S.C. 1 2006 (Rule 6). Rule 6 

goes on to give a number of factors that ought to be taken into account in determining safe speed. 

- Id. The plain language of Rule 6 limits it applicability to situations involving the risk of 

collision. The risk of collision refers to the risk of collision between vessels. 
There was credible testimony and the Coast Guard does not dispute that there were no 

vessels crossing, meeting, or overtaking the CHARLESTON at the time in question. TR. 94. 

Rather the facts of this case involved the vessel CHARLESTON allegedly navigating at an 

excessive speed causing surge damage to a moored shore vessel and impending liquid natural gas 

transfer. There was therefore no risk of collision and a Rule 6 analysis is not applicable in 

determining the appropriate standard of care. The Coast Guard's allegation of Negligence based 

on a violation of Rule 6 is hereby DISMISSED. 

IV. Minimum Safe Speed 

To establish the proper standard of care, the Coast Guard pointed to a MSIB the Captain 

of the Port Savannah issued on December 20,2005. The MSIB states that when an LNG 

tankship is present within the LNG slip, vessels of 1600 gross tons or greater shall transit at 

"minimum safe speed." Ex. R-K. This document's legal effect for establishing the proper 

standard of care was not disputed at hearing and indeed appears reliable. In fact, Respondent 

concedes that minimum safe speed was the prevailing standard of care in this case. Respondent 

likewise concedes that he had knowledge of this document, that the vessel CHARLESTON was 

more than 1600 gross tons, and that there was an LNG tankship within the slip. TR. 355. The 

meaning of minimum safe speed is in dispute. 

1. General Meaning 

The term "minimum safe speed is not defined or assessed a specific numerical value and 

varies from vessel to vessel. TR. 148,503. However, there are several cases and Commandant 

Appeal Decisions on point in which the term is used and help illustrate its fundamental meaning. 

Most commonly, the term is used to describe bare steerageway. See, e.&, Wenzel v. U.S., 291 

F.Supp. 978,980 (D. N.J.1968) (The same instructions advised that feathering is the first action 
to be taken if initiated prior to the approach of the RPM (revolutions per minute) to overspeed 

range. If such range has been reached before the propeller can be feathered, the throttles should 

be closed, the nose pulled up to a minimum safe speed, and the attempt to feather the propeller 

resumed.); People v. Boger, 20 Misc.2d 465,189 N.Y.S.2d 777 (1959) (That the speed at which 

he was traveling was not excessive and that the minimum safe speed at which such a boat had to 

be operated in order to maintain control of the same was six miles per hour.). Bare steerageway 

is the slowest speed a vessel can possibly navigate without being out of control. Trico Marine 

Assets Inc. v. Diamond B Marine Services Inc., 332 F.3d 779,784 (5th Cir. May 28, 2003); TR. 

136. Under this definition the only question of safety regards maintaining rudder control. 

The term is used in another case to describe the speed an engine order of dead slow 

would produce, and in another case, the term is used in connection with a speed of 4.5 knots. 

Bank Line v. Texas Co., 251 F.2d 329,330 (2nd Cir. 1958) (libellant does not contest the finding 

below that the speed of dead slow ahead was the minimum safe speed for the Texas); Appeal 

Decision 2390 (PURSER) (1986) (In his brief, Appellant asserts that the vessel and tow were 

making a speed of only 4 to 5 knots. He also states that the minimum safe speed necessary for 

the M/V SATOCO to maintain steerageway was 4.5 knots and that this was the only safe speed 

under the circumstances.). The usage of the term in these cases is consistent with the testimony 

at hearing that minimum safe speed is in fact understood in the maritime community to mean 

bare steerageway and that any distinction between the two terms amounts to semantics. TR. 112, 

113,503. The undersigned will first analyze the case as if the two terms are synonymous. 

2. CHARLESTON'S Svecific Minimum Safe Speed 

There was testimony at the hearing regarding the CHARLESTON'S minimum safe speed 

under the circumstances. Captain Harvey testified that slow ahead on the CHARLESTON 
produces 6 or 7 knots and that dead slow produces 4.5 to 5 knots. TR. 493. Captain McCarthy 

himself testified that he slowed the CHARLESTON to slow ahead when previously passing the 

Coast Guard station, which amounted to 6 knots. Captain McCarthy did not mention any loss of 

rudder control at this speed. In fact, Respondent does not dispute that the CHARLESTON can 

maintain rudder control at slow ahead or even dead slow. In light of the aforementioned 

testimony and reasonable inferences, one can find that based on the preponderance of the 

evidence, the CHARLESTON'S minimum safe speed under the circumstances was around 6 

knots, if the term is equivalent to bare steerageway. 

3. Breach of Minimum Safe S~eed 

As previously discussed, Captain McCarthy navigated past the LNG terminal with an 

LNG tankship within its slip at 14.2 knots under an engine order of full ahead. Under the theory 

that minimum safe speed amounts to bare steerageway, Respondent was navigating at least 

double the proper speed. Captain McCarthy himself testified at the hearing that if the MSIB 

indicated that bare steerageway was the proper speed instead of minimum safe speed, then "we 

wouldn't be here" because he would be clearly be in breach of that standard. TR. 366. Under 

this theory then, and without any regard to the relative danger of the CHARLESTON passing the 

LNG terminal under these conditions at 14.2 knots, Respondent unquestionably breached the 

applicable standard of care of minimum safe speed of approximately 6 knots. 

4. Respondent's Definition of Minimum Safe Speed 

On the other hand, Captain McCarthy argued at the hearing that minimum safe speed 

encompasses additional factors such as safe passing arrangements with other vessels and is not 

limited to maintaining rudder control. His primary support for this argument was that the terms 

must not be synonymous because the Coast Guard subsequently issued a revised MSIB 
substituting one term for the other. Indeed, the Coast Guard issued the aforementioned revision 

to the MSIB. Without some additional support, however, it would be erroneous to conclude 

minimum safe speed encompasses factors such as safe passing arrangements based on an 

assumption the terms are not synonymous. In any case, the facts will be analyzed as if minimum 

safe speed encompasses a range of other factors. 

Captain McCarthy argued that he was traveling at the minimum safe speed because if he 

slowed the vessel, it would force him to later pass an outbound vessel at a dangerous location. 

The outbound vessel was the Tug TARPON and its captain was Captain Spencer Edleman. 

Captain Edleman testified that the two vessels could have easily met and made a safe pass 

whether the CHARLESTON slowed its speed or not. TR. 169. He testified that his tug and 

barge in tow were not that large and that thc CHARLESTON slowing its speed would not have 

caused a passing problem. TR. 169. He further testified that an easy and safe pass could have 

been accomplished even if slowing the CHARLESTON inevitably caused the two vessels to 

meet in an undesirable passing point on the Savannah River. Respondent did not contest this 

point during cross examination. 

There was nothing to show that the tug's speed was a fixed variable in Captain 

McCarty's calculation as to what engine order to give. Even if Captain McCarthy's testimony 

was accurate that slowing the CHARLESTON would cause the vessels to meet at an unsafe 

passage point, there is no reason why slowing both vessels would not have resolved this 

problem. There is therefore no apparent justification to offset the inherent risk in navigating past 

the LNG terminal during an active transfer at this speed. 

Even if it were true that slowing the CHARLESTON would inevitably cause the two 

vessels to meet at an unsafe passing point, this scenario would be immensely preferable to the 
CHARLESTON passing the LNG terminal in the process of a liquid natural gas transfer at 14.2 

knots. There was extensive testimony at the hearing as to the relative danger associated with 

passing the LNG terminal at high speeds with an LNG tankship within its slip. 

Coast Guard witness Richard Knox was the cross functional technician on staff at the 

LNG terminal at the time in question. He testified that liquid natural gas is regular natural gas 

condensed 600 times, converting it from gas form to liquid form by cryogenically freezing it to 

minus 260 degrees. TR. 217-219. This greatly increases shipping efficiencies but at the same 

time creates a substance that requires extreme care in handling. Mr. Knox testified that liquid 

natural gas coming into contact with human skin would cause instantaneous frost bite that could 

result in loss of appendages. TR. 220. He further testified that liquid natural gas vapors could 

catch fire at the flash point and result in a massive fire. TR. 220. Because of the properties of 

liquid natural gas, the importance of not disturbing a transfer any way is obvious. 

Respondent's witness Captain Harvey testified that the Savannah River is only 

approximately 1000 feet wide at the LNG terminal and that the CHARLESTON was only around 

300 to 500 feet from the terminal when it passed. TR. 509. Coast Guard witness Richard Knox 

testified that passing vessels at this distance causes a disturbance in the water called a surge, 

which can cause a transfer to go completely awry. TR. 227-228. He testified that such a 

disturbance can cause the transferring vessel to thrust forward and back in the slip and cause 

transfer hoses to break loose and other damage potentially resulting in cataclysmic 

consequences. TR. 227-28. The testimony was clear that the faster a vessel travels, the greater 

the surge effect. This is the very reason the Coast Guard issued the MSIB restricting passage of 

an LNG tankship within the LNG terminal slip to minimum safe speed. Ex. R-K. 
Captain McCarthy testified that vessels up to two and one half miles away could feel the 

CHARLESTON'S surge at the speed that the CHARLESTON passed the LNG tankship. TR. 

319. Captain McCarthy and the CHARLESTON were approximately 300 to 500 feet from the 

LNG tankship and impending liquid natural gas transfer when passing at full ahead producing 

14.2 knots. TR. 507. Mr. Knox testified that a surge at this distance could thrust the LNG 

tankship forward and back in the slip and cause transfer lines and other equipment to break. TR. 

227-28. As previously discussed, this sort of disruption of a liquid natural gas transfer could set 

in motion a chain of events potentially creating a massive disaster. Every single witness at the 

hearing testified that they were aware of this danger. Even Captain McCarthy testified that the 

LNG slip was dangerous and in fact was "a hazard to navigation and should have never been 

built." TR. 365. This is an immense risk that does not compare with the minimal risk of passing 

a tow at an undesirable passing point on the Savannah River. As such, 14.2 knots is no where 

near minimum safe speed by any reasonable definition of the term. 

With respect to the instant case, it is undisputed that the CHARLESTON traveling at full 

ahead under Respondent's control in fact created a strong surge. It is also undisputed that the 

CHARLESTON'S surge caused the LNG tankship to thrust forward and back in the slip resulting 

in line breakage and damage to the gangway. 

Respondent argues and has a valid point that damage does not guarantee a negligence 

finding. Appeal Decision 2585 (COULON) (1997), Appeal Decision 2415 (MARSHBURN) 

(1985), Appeal Decision 2395 (LAMBERT) (1985). In this case however, it is a very strong 

indicator that the CHARLESTON passing the LNG terminal at this speed was extremely 

dangerous under the circumstances. As such, it defies logic that a prudent mariner would choose 

to pass the LNG terminal with an LNG tankship within its slip at 14.2 knots merely to avoid a 
supposed unsafe passing arrangement with an oncoming tug. The speed of 14.2 knots is 

therefore nowhere near minimum safe speed under any reasonable definition if the term even 

when weighed against the risk of passing a tug at an undesirable location. Perhaps it was 

Respondent's erroneous belief that he would be subject to a mere $100 fine that contributed to 

this disregard for navigating prudently past the LNG facility. TR. 425. 

Captain McCarthy therefore breached the standard of care of minimum safe speed under 

any reasonable definition and was negligent in passing the LNG terminal with an LNG tankship 

within its slip at 14.2 knots. 

V. General Defenses to Negligence 

1. Previous Passine Without Incident 

Respondent maintains that his speed should be regarded as safe because he has 

previously passed the LNG terminal with an LNG tankship within its slip at a similar speed 

without incident. The law is well settled in this area and as Respondent has previously pointed 

out, the lack of damage or incident is never dispositive in Coast Guard negligence cases. Appeal 

Decision 2585 (COULON) (1997), Appeal Decision 2415 (MARSHBURNJ (1985), Appeal 

Decision 2395 (LAMBERT) (1985). It could very well be that Captain McCarthy was negligent 

previously and was simply lucky that he escaped damage or incident. The standard of care was 

around 6 knots and Captain McCarthy clearly breached this standard of care in navigating past 

the terminal at 14.2 knots. 

Secondly, navigating past the LNG terminal with an LNG tankship within its slip during 

an active transfer procedure at 14.2 knots could never be considered safe under any conditions. 

Even assuming arguendo that 14.2 knots could somehow be safe under these conditions, it is 

inconceivable that the vessel's highest engine setting producing its top speed of 14.2 knots was 
minimum in any respect. Thus, even if his speed was in the range of "safe," which it clearly was 

not, Captain McCarthy's speed in no way falls into any reasonable definition of minimum safe 

speed. The fact remains that he could have slowed the vessel considerably without 

compromising safety and his speed therefore was not "minimum." 

2. Reliance Defenses 

Respondent asserts two reliance defenses. Respondent argues that he should be entitled 

to rely on a bridge watch tender on duty at the LNG facility to tell him to slow down. 

Respondent sent out two radio broadcasts, indicated that his surge could be felt from two miles 

away, and that the bridge watch tender should have seen him coming. Respondent argues that 

the bridge watch tender therefore should have contacted Respondent if the speed was going to be 

a problem. In the alternative, he argues that he should be entitled to rely on standby tugs to push 

the LNG tankship negating the effect of the CHARLESTON'S surge. According to Respondent, 

had the standby tugs been doing their job, there would have been no incident. Nevertheless, the 

fact remains that Respondent could have slowed the CHARLESTON and was therefore not 

traveling at minimum safe speed, even if it were true that the bridge watch tender should have 

told Respondent to slow down, that there should have been tugs, that this would have prevented 

the incident, or that Respondent was somehow entitled to rely on these factors. 

In any case, it is well settled Coast Guard law that contributory negligence or the 

negligence of a third party is never a defense to a Coast Guard negligence claim. Appeal 

Decision 2639 (HAUCK) (2003), Appeal Decision 2581 (DRIGGERS) (1996), Appeal Decision 

2380 (HALL) (1985), Appeal Decision 2319 (PAVELEC) (1983). The only issue present herein 

is whether or not Respondent's actions or non-actions breached the applicable standard of care. 

Appeal Decision 2415 (MARSHBURN) !1985), Appeal Decision 2380 (HALL) (1985), Appeal 
Decision 2175 (RIVERA) (1980). As previously discussed, the proper speed and standard of 

care in this case was around 6 knots, less than half Captain McCarthy's speed. 

In support of his argument that he should have been entitled to rely on the bridge watch 

tender, Respondent relies on Magnolia Towing Co. v. Atchison. Toveka & Santa Fe Railway in 

which a vessel allided with a draw bridge. 764 F.2d 1134 (5th Cir. 1985). The facts were that in 

dense fog a draw bridge operator twice told an oncoming vessel that he would raise the bridge 

but then failed to do so causing the allision. Id. at 1135. The Pilot was not found negligent 

where, in light of the bridge operator's assurances, any possible hazard was totally unanticipated 

and not within the intended protection of the excessive speed rule. &&at 1138. 

The facts of this case are quite distinct. In that case, there was an affirmative 

communication and actual agreement between the bridge operator and the oncoming vessel's 

captain that the bridge tender would open Lhe draw. In this case, Respondent sent out a general 

broadcast that he was approaching the LNG terminal at full ahead and did not receive a response 

from the bridge watch tender. It does not follow that he should be entitled to assume this lack of 

response was an affirmative communication or actual agreement that Respondent's speed would 

not be a problem. Even if there were such an agreement in this case, it would not likely change 

the outcome for at least two reasons. First, having an agreement with the bridge watch tender 

would not vary the applicable standard of care for which a reasonable prudent mariner would 

navigate a vessel. The testimony and evidence was clear that the proper standard of care and 

corresponding speed under these circumstances is around 6 knots. Captain McCarthy clearly 

breached this speed by navigating at 14.2 knots. Secondly, an agreement with the bridge watch 

tender does not change the fact that Captain McCarthy could have slowed the CHARLESTON 

and was therefore not traveling at minimum safe speed. 
Respondent makes a similar argument regarding his reliance that tugs would be pushing 

the LNG tankship. He argues that there is a regulatory requirement that tugs should be on 

standby and pushing. According to Respondent, there would have been no incident had the tugs 

been there and doing their job. Indeed the MSIB itself appears to require or reiterate another 

requirement that standby tugs be in place at the LNG terminal during a liquid natural gas 

transfer. Ex. R-K. As previously stated, however, contributory negligence is not a defense in 

Coast Guard negligence cases. Appeal Decision 2639 (MUCK) (2003). As long as Respondent 

breached the standard of care, which in this case is a speed of around 6 knots, the question of 

damages or whether others could have prevented or even contributed to the damage is irrelevant. 

Appeal Decision 2581 (DRIGGERS) (1996), Appeal Decision 2380 (HALL) (1985), Apveal 

Decision 2319 IPAVELEC] (1983). The fact remains that Captain McCarthy was navigating at 

more than twice the proper speed regardless of whether others may have contributed to causing 

this accident. 

As with the previous reliance argument, this argument again only focuses on safe speed, 

and says nothing about minimum safe speed. Even if the tugs somehow would have made 

Respondent's speed "safe" and that he was entitled to rely on their presence, the fact remains that 

Respondent could have slowed the vessel CHARLESTON without reducing safety. Respondent 

was therefore not traveling at minimum safe speed. Indeed the testimony was clear that the tugs 

should have been there as added protection in the case of an emergency. Even so, it is well 

settled that negligence can still follow in Coast Guard cases regardless of whether damage ensues 

as long as the standard of care of what a reasonable mariner would or would not do is breached. 

Appeal Decision 2639 (HAUCK) (2003). The testimony is clear that mariners view the tugs as 

protection in case of an emergency and would not intentionally pass at this speed in reliance that 
the tugs would negate the emergency. Furthermore, Captain McCarthy should have anticipated 

the possibility that the tugs would not be on standby even if they were required to do so given the 

extreme danger of their absence. 

The situation in this case is analogous to a lifeguard required to be on duty at a swimming 

pool. No reasonable person would push a small child into a swimming pool in reliance on the 

lifeguard making a save. That child could drown whether the lifeguard is on duty or not and it 

would be unreasonable to assume the lifeguard would save the day. It is similarly unreasonable 

to navigate past the LNG slip in reliance on the tugs saving the LNG transfer from catastrophe. 

In any case, Respondent does not provide anything to support his argument that he should he 

entitled to rely on others whether they are required to do their job or not. Even if he had support, 

it would not likely change the outcome of this case because the fact remains that Respondent 

could have slowed the CHARLESTON and was therefore not traveling at minimum safe speed. 

3. Error in Judment Defense 

Respondent quotes the following passage in support of his error in judgment defense. 

"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 judgment 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 a measure of compliance." Kime v. Hawker, N.T.S.B. EM-173 (1993), 

(citing Appeal Decision 1755 (HAWKER)). As previously discussed, passing the LNG terminal 

at this speed during an active liquid natural gas transfer could have cataclysmic consequences. 

Thus, there would have to he some intervening emergency near the same level of danger before 
the CHARLESTON passing at this speed could be considered anything close to a reasonable 

alternative. 

The only counter balancing factor Respondent provided to justify this risk was his 

assertion that slowing down could cause an unsafe passing point between the CHARLESTON 

and an oncoming tug. As previously discussed, the risk associated with an unsafe passing 

arrangement is miniscule compared to the risk of disrupting an active transfer of liquid natural 

gas. Captain McCarthy himself testified that the LNG slip was a hazard to navigation and was 

extremely dangerous. In any case, the oncoming tug's captain testified that passing would not be 

a problem even if the CHARLESTON slowed its speed. From the testimony at hearing, it is 

clear that a reasonable prudent mariner would do just about anything short of creating an 

inevitable head on collision in order to avoid passing the LNG terminal with an LNG tankship 

within its slip at this speed. The error in judgment defense is therefore rejected. 

V1. General Practice for Speed near the LNG Terminal 

While not specifically alleged in the Complaint as a basis for establishing the applicable 

standard of care, the Coast Guard provided several local Pilots who testified to the proper speed 

under the circumstances of this case. As previously discussed, this proceeding is not bound by 

the rigid procedural requirements of criminal and civil trials and the pleadings will therefore not 

be dispositive. The local knowledge of Pilots the Coast Guard provided as witness will establish 

the applicable standard of care in the event that the MSIB designating minimum safe speed as the 

proper speed is not the applicable standard of care. 

These witnesses' testimony was in accord that it is general knowledge in the Savannah 

maritime community that a vessel should proceed very slowly and with caution past the LNG 

terminal when an LNG tankship is within its slip. Coast Guard witness Captain Edleman's 
testimony was that he makes a practice of passing the LNG terminal with an LNG tankship 

within its slip at no faster than 6 knots. TR. 162. In fact, his practice is to pass any moored 

vessel at dead slow as to not create a surge. TR. 162. Coast Guard witness Captain Logan 

testified that even 12 knots was too fast to pass the LNG terminal with an LNG tankship within 

its slip, but that slow speeds are appropriate. TR. 151. 

Coast Guard witness Captain Thompson's testimony was in accord with Captain 

Edleman's in that his general practice for passing any moored vessel is to proceed as slow as 

possible as to not create a surge. TR. 101. He likewise testified that he cuts the engine to dead 

slow or stop when passing the LNG terminal under these conditions with a ship similar to the 

CHARLESTON. TR. 101-04. As previously discussed, the very reason Captain Thompson 

remembered the CHARLESTON'S exact speed after following it at on his global positioning 

system at the time in question was that he could not believe that someone was about to pass the 

LNG terminal with a LNG tankship within its slip at that speed. TR. 226. According to local 

mariners then, the standard of care was somewhere near 6 knots, which is nothing close to 14.2 

knots. 

Respondent testified that the CHARLESTON was throwing out minimal or no wake and 

stressed that he would not have rocked a kayak and that his speed was therefore safe. Again, the 

question is not whether damage will ensue; the question is whether Captain McCarthy breached 

the standard of care. The standard of care was minimum safe speed, which in this case amounted 

to around 6 knots. Captain McCarthy navigated at more than double this speed. 

In any case, the testimony was undisputed that wake was only half the equation and surge 

is the other. Surge is a displacement of water that essentially travels under the surface. This is 

what caused the accident in question. As such, Respondent could be correct in that he may not 
have rocked a kayak because a kayak floats on top of the water surface whereas surge travels 

below it. Since the CHARLESTON was putting out minimal wake, its surge theoretically could 

have passed below a kayak with little or no effect. The GOLAR FREEZE on the other hand is a 

tankship. Unlike a kayak, any tankship's hull sits down far below the water surface. The 

CHARLESTON, for instance, had a draft of around 26 feet on the day in question, which 

Captain McCarthy considered light. TR. 329. Thus, the CHARLESTON surely would have and 

in fact did affect the GOLAR FREEZE with its surge. Respondent should have anticipated this 

and slowed the CHARLESTON. 

Respondent offered a single witness who testified that 14.2 knots is a safe speed under 

these circumstances. However, findings "need not be consistent with all evidentiary materials in 

the record as longs as there is sufficient material in the record to support their justifications." 

Appeal Decision 22642 [RIZZO) (2003), Appeal Decision 2492 (RATH) (1989), Aooeal 

Decision 2282 (LI'lTLE FIELD) (1982), A~ueal Decision 2395 ILAMBERT) (1985). In this 

case, there is overwhelming evidence that 14.2 knots is nothing close to safe under these 

circumstances and is more than double the proper speed. Even if the speed was safe, which it 

clearly was not, Respondent could have slowed the CHARLESTON and was therefore in excess 

of minimum safe speed. 

In any case, Respondent's witness was Captain Steve Harvey. Captain Harvey had 

worked on the CHARLESTON previously but was unfamiliar with this portion of the Savannah 

River as he primarily navigates in Florida. Captain Harvey could not testify as to the specifics of 

the Savannah River or the prevailing standard of care for navigating the CHARLESTON past the 

LNG terminal with an LNG tankship within its slip. As such, and as common sense dictates, it is 
unimaginable that 14.2 knots would be safe a safe speed to pass the LNG terminal under the 

circumstances. 

Captain McCarthy's speed was therefore not safe in any respect under the prevailing 

circumstances, and was nothing close to minimum safe speed as the MSIB requires and was 

likewise in breach of any theory of standard of care. The Coast Guard's claim that Respondent 

was negligent in navigating past the LNG terminal with an LNG tankship within its slip at an 

excessive speed is therefore found PROVED. 

D. Misconduct 

As discussed previously, Captain McCarthy was the holder and acting under the authority 

of his Coast Guard license at all relevant times. 

The Coast Guard has charged Respondent with two counts of Misconduct in connection 

with the events of March 14,2006. Misconduct is defined as a "behavior which violates some 

formal, duly established rule. Such rules are found in . . . statutes, regulations, the common law, 

the general maritime law, . . . and similar sources. It is an act which is forbidden or a failure to 

do that which is required." 46 CFR 5.27. The Coast Guard alleged in count one that Respondent 

violated a local ordinance containing a speed limit for passing the LNG terminal. The Coast 

Guard alleged in count two that Respondent violated 33 CFR 162.65(b)(3). 

I. Coast Pilot 

The Coast Guard provided an excerpt from the Coast Pilot manual in support of count 

one of Misconduct. This excerpt is directly on point and clearly states that the speed limit in this 

case would be 6 knots. The facts are clear Respondent was navigating at 14.2 knots and at first 

blush, this would seem to be dispositive regarding misconduct. However, Respondent maintains 

that this manual is out of date and lacks legal authority. Respondent offered a local attorney who 
testified that the manual might in fact be out of date and could contain mistakes. There is 

therefore significant doubt as to whether the speed limit contained in the Coast Pilot manual 

qualifies as a duly established rule for the purposes of misconduct. However, the undersigned 

will not rule on the legal effect of this manual or whether it is in fact obsolete. The Coast Guard 

has not established by a preponderance of the evidence that Respondent committed Misconduct 

with respect to count one because the legal effect of this passage of the Coast Pilot is in doubt. 

11.33 CFR 162.65(b)(3) 

The Coast Guard alleges that Respondent committed Misconduct by violating 33 CFR 

162.65@)(3). This regulation mandates that "[v]essels shall proceed at a speed which will not 

endanger other vessels or structures and will not interfere with any work in progress incident to 

maintaining, improving, surveying or marking the channel." Id. Respondent navigated past the 

LNG terminal with an LNG tankship within its slip at 14.2 knots. There was extensive testimony 

at hearing that this speed caused damage to the LNG tankship's mooring lines and gangway. 

The testimony was that the CHARLESTON put out a surge which caused the LNG tankship to 

thrust forward and back severing lines and causing damage to the gangway. Clearly this speed 

was excessive and endangered other vessels and structures, namely the LNG terminal and the 

LNG tankship within its slip. As such, Respondent violated 33 CFR 162.65@)(3) by navigating 

at an excessive speed as to endanger other vessels and structures. 

Respondent argues that this regulation is not applicable because its scope is limited to 

protecting vessels and structures engaged in maintaining, improving, surveying or marking the 

channel. This argument is rejected on its face because Respondent is requesting the regulation 

be interpreted counter to its plain meaning. The regulation clearly states that "[v]essels shall 

proceed at a speed which will not endanger other vessels or structures will not interfere with 
any work in progress incident to maintaining, improving, surveying or marking the channel." 33 

CFR 162.65@)(3) (emphasis added). By the plain langue of the regulations, the Respondent's 

speed must satisfy two factors to avoid violation. It must not endanger other vessel or structures, 

and it must also not interfere with work in progress incident to maintaining, improving, 

surveying or marking the channel. 

The testimony is undisputed that Respondent's speed in navigating the CHARLESTON 

endangered shore structures and shore vessels. Respondent actually caused the LNG tankship to 

thrust fonvard and back, causing significant damage to transfer equipment and the vessel's 

gangway. Responded also pointed to a passage of the Maritime Guide to Safe Navigation which 

states that "safe speed encompasses a range of factors. As previously discussed, the risk 

associated with passing an active liquid natural gas transfer at 14.2 knots far outweighs any other 

factor asserted in this case and could therefore never be considered safe under these 

circumstances. 

Respondent traveled at an excessive speed to endanger other vessels and shore structures 

and the Coast Guard's claim that Respondent therefore committed Misconduct is hereby found 

PROVED. 

v. 

ULTIMATE FINDINGS AND CONCLUSIONS OF LAW 

1. Captain John C. McCarthy I11 is the holder a Coast Guard issued Pilot's license. 

2. At all times pertinent to this case, Captain McCarthy was acting under the authority of his 

Coast Guard issued License as Pilot on the CHARLESTON. 
3. At all times pertinent to this case, Captain McCarthy was navigating the CHARLESTON 

and giving engine orders and rudder commands because of his local knowledge of the 

Savannah River. 

4. On March 14,2006 at approximately 0418, the CHARLESTON was under Captain 

McCarthy's engine order of full ahead and traveling at 14.2 knots while proceeding 

inbound on the Savannah River. 

5. At this time, the CHARLESTON passed the LNG terminal at 14.2 knots while an LNG 

tankship was within its slip. 

6. At this time or immediately thereafter, the LNG tankship GOLAR FREEZE surged along 

the dock and damage ensued. 

7. The CHARLESTON'S surge was a cause of this damage. 

8. The charge of Negligence against Captain McCarthy based on him violating Rule 6 "safe 

speed" as the applicable standard of care is found NOT PROVED. 

9. The charge of Negligence against Captain McCarthy based on him violating "minimum 

safe speed" found in a Coast Guard Marine Safety Information Bulletin as the applicable 

standard of care is found PROVED. 

10. The charge of Misconduct against Captain McCarthy based on him violating provisions 

found in the Coast Pilot manual is found NOT PROVED. 

11. The charge of Misconduct against Captain McCarthy based on him violating Section 

162.65(b)(3) of the Code of Federal Regulations is found PROVED. 
VI. 

ORDER 

IT IS HEREBY ORDERED that the second part of this bifurcated hearing will occur on 

December 20,2006 in Savannah Georgia. On that date, both parties will have an opportunity to 

present evidence in aggravation and mitigation bearing on the appropriate sanction. The precise 

location and time to be announced. 

IT IS HEREBY ORDERED that both parties are to file with the undersigned and serve 

on one another their intended witness and exhibit lists by close of business on December 13, 

2006. 

PLEASE TAKE NOTE that issuance of this Decision and Order serves as the parties' 

right to appeal under 33 CFR Part 20, Subpart J. A copy of Subpart J is provided as a 

Attachment E. 

Administrative Law ~udg 

United States Coast Guard 

Done and Dated on November 29,2006 at 

Norfolk, VA 
ATTACHMENT A - WITNESS AND EXHIBIT LIST 

A. Witness Lists 

1. Agency's Witnesses 

1. Gregory Todd Maxwell, Captain, CHARLESTON 

2. Robert Thompson, River Pilot, Savannah, GA 

3. Douglas G. Logan Jr., First Class Pilot, Bar and Harbor, Charleston SC 

4. Spencer L. Edleman, Jr., River Pilot, Savannah, GA 

5. William T. Brown, Jr., River Pilot, Savannah GA 

6. Richard Knox, Cross Functional Technician, Southern LNG, El Paso Corporation 

7. Timmy J. Grifface, Lead Cross Functional Technician, Southern LNG 

11. Respondent's Witnesses 

1. John C. McCarthy 111, Respondent 

2. Thomas Gray, Attorney, Savannah GA 

3. Steven B. Harvey, First Class Pilot 

B. Exhibit Lists 

I. Judge's Exhibits. AW 1 through AW 3 

1. Joint Stipulations of Facts 

2. Respondent's Proposed Findings of Fact and Conclusions of Law 

3. Coast Guard's Proposed Findings of Fact and Conclusions of Law 

4. The undersigned took official notice of page 358 of the All Coast Pilot Manual. 

5. The undersigned took official notice of excerpts of Law of Marine Collision. 

11. Agency Exhibits. 10-1 through 10-12 

1. Bell Book 
2. Speed Tape and Copy 

3. Pilot Card (4-14-06) 

4. 2 Aerial Photographs 

5. 10-S(a)-(k) Photographs of damage of LNG tankship and terminal 

6. MAERSK DUNAFARE data 

7. Chapter 14, Chatham County Code 

8. CG Form 2692 

9. CG Form 2692 

10. Chart No. 11512 

11. Pilot Sketch, Savannah River 

12. List of vessels moored at LNG terminal 

111. Respondent's Exhibits. R-A through R-Q 

A. DILIGENCE'S Log (4 pages) 

B. Expanded Photograph of LNG tanker 

C. Drawing 

D. Map 1152 

E. Photograph of CHARLESTON 

F. Survey Report 

G. Chatham County Code 

H. Drawing of GOLAR FREEZE 

I. R-I(1)-(22)Photographs 

J. Witness Attorney's File 

K. Marine Safety Information Bulletin 13-05 
L. Revised Marine Safety Information Bulletin 13-05 

M. Copy of Captain McCarthy's Coast Guard license 

N. Witness Attorney's Drawing 

0. Deposition transcript of Captain Tommy Parker 

P. Letter from Captain Gregg 

Q. Newsletter Article 
ATTACHMENT B - COMPLAINANT'S PROPOSED FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

NOTE: Responses provided to proposed findings of fact and conclusions of law stand for the 

acceptance or rejection of the general notions and propositions presented. Refer to the Findings 

of Fact and Ultimate Conclusions of Law as contained in the Decision and Order for the actual 

findings in this matter. 

1. Pilot John C. McCarthy 111 established that the TIV CHARLESTON could be handled 

and steered at engine order position slow ahead when the CHARLESTON passed by 

the Coast Guard and Pilot stations at a speed of approx 6 knots. Stipulations number 6 

and pilot card. ACCEPTED AND INCORPORATED. 

2. Pilot John C. McCarthy I11 did know the rule, regulation and custom, concerning the 

speed limit when passing by the LNG Terminal was Minimum Safe Speed. Pilot 

McCarthy testimony 9/21, Page 355 of the Condensed Transcript. ACCEPTED AND 

INCORPORATED. 

3. Pilot John C. McCarthy I11 could have slowed the T/V CHARLESTON down when 

passing by the LNG terminal and still would have made it to a place of safe passing 

with the down bound Tug TARPON as arranged and agreed to by both pilots. Pilot 

Edleman testimony 9/20, page 168 & 169 of the condensed transcript. Pilot McCarthy 

testimony 9/21, page 451 & 452 of the condensed transcript. ACCEPTED AND 

INCORPORATED. 
4. Stipulations between parties where as the respondent John C. McCarthy 111 did 

stipulate: 

a. That on March 14,2006, the respondent John C. McCarthy 111, was serving as 

Pilot on board the CHARLESTON, as required by 46 Code of Federal 

Regulations (CFR) 15.812. Number 3 of stipulations. ACCEPTED AND 

INCORPORATED. 

b. That on March 14,2006 at approximately 0418 the LNG tank ship GOLAR 

FREEZE was moored at the LNG Terminal located on Elba Island. Number 10 of 

stipulations. ACCEPTED AND INCORPORATED. 

c. That the respondent, JOHN C. McCARTHY 111, while transiting the Savannah 

River and having the conn of the CHARLESTON did not slow the 

CHARLESTON down while passing by the moored LNG tank ship GOLAR 

FREEZE at approximately 0418 on the morning of March 14,2006. Number 11 

of stipulations. ACCEPTED AND INCORPORATED. 

d. That the T/V CHARLESTON piloted by respondent, JOHN C. McCARTHY 111, 

did pass by the moored LNG tank ship GOLAR FREEZE at approximately 0418 

under an engine order of full ahead. Number 12 of stipulations. ACCEPTED 

AND INCORPORATED. 

e. That on March 14,2006, at approximately 0418, the moored LNG tank ship 

GOLAR FREEZE did surge along the dock face after the T/V CHARLESTON 

passed by at full ahead. Number 13 of stipulations. ACCEPTED AND 

INCORPORATED. 
ATTACHMENT C - RESPONDENT'S PROPOSED FINDINGS OF FACTS AND 

CONCLUSIONS OF LAW 

NOTE: Responses provided to proposed findings of fact and conclusions of law stand for the 

acceptance or rejection of the general notions and propositions presented. Refer to the Findings 

of Fact and Ultimate Conclusions of Law as contained in the Decision and Order for the actual 

findings in this matter. 

A. Proposed Findings of Fact 

1. Capt. McCarthy is the holder of U.S. Coast Guard License No. 1042660 and was 

operating under the authority of this license on March 14,2006. (Stipulations). 

ACCEPTED AND INCORPORATED. 

2. He started working on the Savannah River as a deckhand at Atlantic Towing in 1974 and 

worked his way up to tug captain, a position he held with that company for ten years. He 

has been piloting ocean-going vessels up and down the Savannah River since 1988. 

(Transcript, p. 303). ACCEPTED AND INCORPORATED. 

3. At the time of the subject incident, on March 14,2006, Capt. McCarthy was sewing as 

Pilot on board the CHARLESTON, as required by 46 Code of Federal Regulations (CFR) 

5 15.812(a). (Stipulations). ACCEPTED AND INCORPORATED. 

4. The CHARLESTON is 635.5 ft in length and 27,798 GT and is a documented vessel of 

the United States, bearing official number 658493. (Stipulations). ACCEPTED AND 

INCORPORATED. 

5. At the time of the subject transit, the draft of the CHARLESTON at its deepest point, the 

stern, was 26.6.feet. (Transcript, pp. 328-329). ACCEPTED AND INCORPORATED. 
6. The Army Corps of Engineers project depth for those portions of the Savannah River 

transited by the CHARLESTON on March 14,2006 ranges from 40-42 feet. (Exhibit RD). ACCEPTED AND INCORPORATED. 

7. Prior to December, 2005, discharging LNG tankers at the subject LNG terminal docked 

near the main channel on the river. (Transcript pp. 486,487). ACCEPTED AND 

INCORPORATED. 

8. In accordance with the regulations in effect prior to the opening of the new slip, escort 

tugs were used to assist transiting vessels while a discharging LNG tanker was at the 

terminal's docks on the main channel. 33 CFR 165.756. ACCEPTED AND 

INCORPORATED. 

9. A new slip was added by the terminal operator prior to December, 2005, including two 

new berths; the new slip is located off of the main channel of the river. ACCEPTED 

AND INCORPORATED. 

10. With the availability of the new slip, the terminal operator, Southern LNG, requested a 

waiver from the Captain of the Port to eliminate the requirement of escort tugs. The 

COTP granted the terminal operator's request, per the Marine Safety Information Bulletin 

(MSIB) 13-05 dated 12/20/05). ACCEPTED AND INCORPORATED. 

11. The MSIB also imposed positive duties upon the LNG tanker: "While moored inside the 

facility slip, LNG tank ships shall maintain a bridge watch consisting of a docking pilot 

or other licensed deck officer to monitor vessels passing and to coordinate the actions of 

the towing vessel(s) in the event of emergency." ACCEPTED AND INCORPORATED. 

12. Prior to this incident, three different LNG tankers made seven vessels call at the new slip. 

REJECTED. 
13. Between the time of the opening of the new slip on December 20,2005 and the date of 

the incident on March 14,2006, Respondent's only pilotage transit past the LNG terminal 

(with an LNG tanker in the new slip), occurred on February 20,2006 while piloting the 

tanker DILIGENCE downriver. (Transcript, pp. 327-329). ACCEPTED AND 

INCORPORATED. 

14. During that transit, the DILIGENCE was light draft and, significantly, passed the 

terminal under an engine order of full ahead. (Exhibit R-A; Transcript p. 327). 

ACCEPTED AND INCORPORATED 

15. Respondent observed tugs on the outboard side of the LNG tanker GOLAR FREEZE, 

moored port side to (or "head in"); while he was not certain whether the tugs were 

pushing the tanker in to the dock or not, they were located fore and aft on the starboard 

side of the GOLAR FREEZE. (Transcript, pp. 327-329). ACCEPTED AND 

INCORPORATED, to the extent that the Respondent so testified. 

16. The transit of the DILIGENCE, under an engine order of full ahead (producing a speed of 

11 knots) past the terminal and GOLAR FREEZE on February 20,2006 did not result in 

any damage, complaint, or reportable incident. (Transcript, pp. 327-329). ACCEPTED 

AND INCORPORATED. 

17. At 0200 hours on March 14,2006, Capt. McCarthy, in preparation for his imminent 

pilotage of the CHARLESTON, called the dispatcher's offices at two local tug 

companies, Crescent Towing and Moran Towing, to determine details about river traffic. 

(Transcript, p. 316). ACCEPTED AND INCORPORATED. 
18. Shortly before 0300 hours on March 14,2006, near the mouth of Lazaretto Creek on 

Tybee Island, Capt. McCarthy boarded the pilot launch boat used by Coastal Pilots. 

(Transcript, p. 315). ACCEPTED AND INCORPORATED. 

19. Weather conditions on the Savannah River included clear skies, visibility of at least 10 

nautical miles and winds of less than 15 mph. These conditions persisted throughout the 

CHARLESTON'S transit. (Stipulations). ACCEPTED AND INCORPORATED. 

20. The tidal state flooding with currents at one-half (0.5) knot. (Stipulations). ACCEPTED 

AND INCORPORATED. 

21. At approximately 0300 hours, Capt. McCarthy boarded the CHARLESTON near the sea 

buoy, shown as RW "T" on NOAA chart number 115 12. (Transcript, p. 65; p. 307). 

ACCEPTED AND INCORPORATED. 

22. Immediately after hoarding the CHARLESTON, Capt. McCarthy gave the first of two 

sets of security broadcasts on VHF channels 13 and 16. (Transcript, p. 65) ACCEPTED 

AND INCORPORATED. 

23. He also signed the vessel's CHARLESTON'S Pilot Card, which also bore the signature of 

the Master of the vessel, Capt. Maxwell. (Stipulations). ACCEPTED AND 

INCORPORATED. 

24. The CHARLESTON'S Pilot Card states engine RPM for maneuvering engine orders 

ranging from full astern to full ahead. The minimum RPM is 30 (5.5 knots). 

(Stipulations). ACCEPTED AND INCORPORATED. 

25. At the time of Respondent's boarding of the CHARLESTON, she was already underway, 

under an engine order of full ahead previously given by the CHARLESTON'S master, 

Capt. Maxwell; the CHARLESTON was preparing to enter the easternmost portion of the 
Savannah River Channel at the Tybee Range. (Transcript, p. 333). ACCEPTED AND 

INCORPORATED. 

26. At the time of the incident, the CHARLESTON was bound for the Conoco Phillips dock, 

located on the south side of the Savannah River, downriver from the city front and near 

Fort Jackson. (Transcript, p. 309). ACCEPTED AND INCORPORATED. 

27. The passage plan for the CHARLESTON'S transit up the Savannah River included, at the 

uppermost portion of its transit, a turn at the Fig Island Turning Basin so that the vessel 

could dock starboard side to the Conoco Phillips dock, or "head out". (Transcript, p. 

309). ACCEPTED AND INCORPORATED. 

28. Shortly after boarding the CHARLESTON, Capt. McCarthy had radio communications 

with Savannah River Pilot Spencer Edelman, Sr., who was piloting a container vessel, the 

KOBE EXPRESS, outbound, to discuss passing arrangements between the two vessels. 

The vessels passed each other port-to-port near buoy 8A on the Bloody Point Range. 

(Transcript, p. 334). ACCEPTED AND INCORPORATED, but modified. The pilot of 

the KOBE EXPRESS was not discussed at the hearing and is not apparent from the 

record. 

29. Following the uneventful passing of the KOBE EXPRESS, The CHARLESTON did not 

pass another vessel underway or working until it had passed the LNG terminal, where it 

later encountered the Dredge ARLINGTON working on The Bight channel. (Transcript, 

pp. 334,391). ACCEPTED AND INCORPORATED. 

30. As the CHARLESTON entered the jetties in the Tybee Knoll Cut range, Capt. McCarthy 

briefly left the wheelhouse and walked out onto the wings to observe the vessel's wake. 

As the vessel was light draft, he observed a slight visible wake. At this time, the 
CHARLESTON was proceeding under an engine order of full ahead, which had not been 

modified by Capt. McCarthy since boarding the vessel. (Transcript, p. 337). 

ACCEPTED AND INCORPORATED. 

31. Capt. McCarthy walked onto the wings again during the vessel's transit of the Long 

Island Crossing Range and, again, observed a minimal visible wake. ACCEPTED AND 

INCORPORATED. 

32. In order for the CHARLESTON to reach the Conoco Phillips dock, it was necessary for 

the vessel to pass, the Coast Guard Station Tybee and its docks and moored vessels; and 

the Savannah River Pilots offices, its docks and moored vessels. Both of these facilities 

are located on the south side of the main channel of the Savannah River, on Long Island. 

(Exhibit R-D). ACCEPTED AND INCORPORATED. 

33. Capt. McCarthy ordered the CHARLESTON'S engines from full ahead to slow ahead 

past these two facilities. (Transcript, p. 308). ACCEPTED AND INCORPORATED. 

34. These orders, and all engine orders from the pilot, were repeated by the vessel's Master, 

Capt. Gregory Maxwell, repeated again by the Mate on watch, and then executed by the 

Mate on watch via the engine order telegraph. (Transcript, pp. 92-93). REJECTED. 

35. There is no evidence that any damage was reported due to CHARLESTON'S passing of 

these facilities and no complaints were received by the CHARLESTON. ACCEPTED 

AND INCORPORATED. 

36. After passing the Coast Guard station and the pilot docks, Capt. McCarthy gave an 

engine order to increase from slow ahead to full ahead. ACCEPTED AND 

INCORPORATED. 
37. After passing the Coast Guard station and when approaching the ICW, Capt. McCarthy 

gave a second set of security broadcasts while the CHARLESTON transited the Long 

Island range. (Transcript, pp. 29-30; p. 66). ACCEPTED AND INCORPORATED. 

38. Capt. McCarthy then received a radio call from the pilot aboard the Tug TARPON, Capt. 

Spencer Edelman, Jr. (Transcript, p. 339-340). ACCEPTED AND INCORPORATED. 

39. The TARPON had just sailed from its berth at CITGO and was pushing a loaded asphalt 

barge. The total length of tug and tow was about 500 feet. (Transcript, p. 165-166; 

Exhibit R-D). ACCEPTED AND INCORPORATED. 

40. Capt. Edelman, Jr. and Capt. McCarthy agreed that the inbound CHARLESTON and the 

outbound TARPON (and its tow) would pass port-to-port upriver of the LNG terminal, 

after the CHARLESTON had cleared The Bight channel, but before the CHARLESTON 

reached the Fig Island Turning Basin. (Transcript, p. 164; 343; 357). ACCEPTED AND 

INCORPORATED. 

41. The CHARLESTON maintained an engine order of full ahead until after it had passed the 

Southern Liquid Natural Gas (LNG) terminal located on Elba Island. ACCEPTED AND 

INCORPORATED. 

42. At the time of the CHARLESTON'S transit up the Savannah River, the LNG tank ship 

GOLAR FREEZE was moored at the LNG terminal. (Stipulations). ACCEPTED AND 

INCORPORATED. 

43. Prior to 0418 hours, the CHARLESTON passed the LNG terminal at a distance of 

approximately 700 - 800 feet from the moored GOLAR FREEZE. (Transcript, p. 509). 

REJECTED. 
44. Specifically, the GOLAR FREEZE was moored port side to the dock, within a new slip 

which had recently been opened at the terminal. It was secured to the dock with multiple 

mooring lines, consisting of wires with rope pendants. Tension alarms were affixed to 

the dock end of the mooring lines. (Exhibit R-F; R-0). ACCEPTED AND 

INCORPORATED. 

45. Two tractor tugs, the BULLDOG (owned by Crescent Towing) and the DIANE MORAN 

(owned by Moran Towing), were made up to the starboard stern quarter of the tanker 

GOLAR FREEZE. (Exhibit R-F). ACCEPTED AND INCORPORATED. 

46. At approximately 0418, after the CHARLESTON passed by at full ahead, the moored 

LNG tank ship GOLAR FREEZE surged along the dock face of the terminal. 

(Stipulations). ACCEPTED AND INCORPORATED. 

47. After passing the terminal, Capt. McCarthy stated to Capt. Maxwell, the 

CHARLESTON'S master, that he was surprised that the tugs were not pushing the 

GOLAR FREEZE and that "they were asleep." (Transcript., p. 77). ACCEPTED AND 

INCORPORATED. 

48. Capt. Tommy Parker, the bridge watchtender for the GOLAR FREEZE, did not know 

that the CHARLESTON was on the river. (Exhibit R-0, p. 46). ACCEPTED AND 

INCORPORATED. 

49. The CHARLESTON then passed the Dredge ARLINGTON, working on The Bight 

Channel, without incident. (Transcript., p. 68,184). ACCEPTED AND 

INCORPORATED. 

50. The CHARLESTON next passed the outbound TARPON, with tow, after the 

CHARLESTON passed the ARLINGTON, but before the CHARLESTON reached the 
Fig Island Turning Basin. (Transcript, pp. 165-166). ACCEPTED AND 

INCORPORATED. 

51. This was in accordance with the passing arrangements made previously between Capts. 

McCarthy and Edelman, Jr. and, according to Edelman, Jr., "was the best choice." This 

is illustrated in Capt. Edelman, Jr.'s testimony: 

Q (By Mr. Tufts): The passing arrangement agreed upon, was that the only arrangement 

available at the time? 

A. (By Capt. Edelman, Jr.): Well, it was the best arrangement at the time. Even if he'd 

have slowed down, it would have given me more time to get further down the river before we 

turned the tanker. (Transcript., p. 168). ACCEPTED AND INCORPORATED. 

52. The CHARLESTON then took on a docking pilot, Capt. Kirk, and tugs, which assisted in 

turning the vessel around in the Fig Island turning basin and headed downriver. The 

CHARLESTON docked at Conoco Phillips at 0606 hours. (Transcript, pp. 68-69; 

Exhibit R-D). ACCEPTED AND INCORPORATED. 

B. Proposed Conclusions of Law 

1. The Amended Complaint, as amended further during the opening of the proceedings, 

contain allegations of negligence under 46 CFR 5.29 and misconduct under 46 CFR 

5.27. (Transcript, p. 33-34). ACCEPTED AND INCORPORATED. 

2. Specifically, Count 1 (Negligence) alleges that Capt. McCarthy is guilty of 

negligence on the basis of his violation of Rule 6 of the Inland Rules, 33 U.S.C. 2006 

(Rule 6). ACCEPTED AND INCORPORATED. 

3. Rule 6 of the Inland Rules provides, in pertinent part, that: 
"Every vessel shall at all times proceed at a safe speed so that she can take proper and effective 

action to avoid collision and be stopped within a distance appropriate to the prevailing 

circumstances and conditions. In determining a safe speed, the following factors shall be taken 

into account: 

(a) By all vessels: 

(i) the state of visibility; 

(ii) the traffic density including concentrations of fishing vessels or any other vessels; 

(iii) the maneuverability of the vessel with special reference to stopping distance and turning 

ability in the prevailing conditions; 

(iv) at night the presence of background light such as from shore lights or from back scatter of 

her own lights; 

(v) the state of wind, sea and current, and the proximity of navigational hazards; 

the draft in relation to the available depth of water.. ." 

ACCEPTED AND INCORPORATED, but modified. The last clause starting with "the draft" is 

enumerated separately under the numeral (vi). 

4. Count 2 (Misconduct) alleges that Capt. McCarthy is guilty of misconduct on the 

basis of his violation of local ordinances containing speed limits as referenced in the 

Coast Pilot, which contains the following passage at p. 358: "A speed limit of 4 mph, 

against the current, and 6 mph, with the current, is in force within the harbor limits." 

ACCEPTED AND INCORPORATED. 

5. Count 3 (Misconduct) alleges that Capt. McCarthy is guilty of misconduct on the 

basis of his violation of 33 CFR 162.65(b)(3), which states as follows: "Vessels shall 

proceed at a speed which will not endanger other vessels or structures and will not 
interfere with any work in progress incident to maintaining, improving, surveying or 

marking the channel." 

The Answer contains various denials of the factual and legal allegations and asserts the 

affirmative defense of error in judgment. 

I will review the charges, denials, and defenses seriatim. ACCEPTED AND 

INCORPORATED. 

6. I find that Rule 6 does not apply where no risk of collision between vessels exists and 

that the risk of collision, if extant, must be between two vessels, not a vessel and 

another object. See: Farwell's, p. 205, citing Lyon v. The RANGER, 858 F.2d 22 

(1st Cir. 1988). 

A risk of collision does not exist where only one vessel is underway within the confines 

of the subject waterway. This legal principle is supported by the practical testimony of Capt. 

Maxwell: 

Q: If there's no other vessel, there's no risk, is that right? 

A: That is right, correct, yes. (Transcript, p. 94). 

Capt. Parker, aboard the GOLAR FREEZE, also agreed that no risk of collision existed. 

(Exhibit R-0, p. 100). 

Additionally, the record is clear that the CHARLESTON did not encounter any other 

vessels underway, after the outbound KOBE EXPRESS (on Bloody Point range, outside of the 

jetties) until it had passed the LNG terminal. (Transcript, p. 390, 391). 

Consequently, since no risk of collision existed, I find that there can be no violation of 

Rule 6. Count 1 of the Amended Complaint, as further amended at the outset of the proceedings, 

is therefore dismissed with prejudice. ACCEPTED AND INCORPORATED. 
7. The Coast Pilot is an informational reference book covering diverse topics such as 

topographical and marine features, nautical charts applicable to particular areas, the 

contact information for various marine vendors, and docking/terminal facilities 

located along various waterways. 

As its Preface points out: "Mariners, and others, are urged to report errors, omissions, or 

differing conditions to those found in the Coast Pilot, or shown on the charts, in order that they 

may be fully investigated and corrections made." 

As such, I find that the Coast Pilot is not, in and of itself, a source of positive law and 

therefore does not carry the weight of law. 

More troubling here is the reference in the Coast Pilot to a local speed limit, found on p. 

358, and relied upon by the Coast Guard as the basis for Count 2 of the Amended Complaint: "A 

speed limit of 4 mph, against the current, and 6 mph, with the current, is in force within the 

harbor limits." 

This passage also states that "[tlhe Savannah Port Authority has jurisdiction over 

Savannah Harbor and the port district.. .Copies of the port and harbor regulations are available 

from the Savannah Port Authority, 42 E. Bay Street. 

Attorney Thomas Gray, who has been practicing law in Georgia for 43 years and is 

General Counsel to the Savannah Economic Development Authority ("SEDA"), testified that the 

Savannah Port Authority ("SPA") no longer exists by that name. (Transcript, p. 371). He also 

testified that the successor entity to the SPA, SEDA, does not actively regulate port traffic 

(Transcript, p. 382); and that the SPA has not been located at the address given in the Coast 

Pilot since 1982 or 1983. (Transcript, p. 386). Finally, and most importantly, he testified: 
Q (By Mr. Raley). Okay. Do you know of any document that contains a speed limit that 

is currently in force and in effect on the Savannah River as generated by the Savannah Port 

Authority as the Coast Pilot says? 

A (Mr. Gray). No. 

Q. No document exists to your knowledge. 

A. Not that I know of. (Transcript, p. 387). 

While it is clear that Chatham County, Georgia promulgates ordinances which purport to 

regulate navigation on the Savannah River, it is not clear that the SPA, which does not exist by 

that name, continues to regulate such navigation. ACCEPTED AND INCORPORATED to the 

extent that the Coast Guard has not shown by a preponderance of the evidence that this is a duly 

established rule for the purposes of a Misconduct charge under 33 CFR 5.27. 

8. Since the burden is on the Coast Guard to prove that such a speed limit exists in the 

first instance, and since that burden is not met by reference to an informational text 

which admits in its Preface to be imperfect and open to revision by third parties, I 

find as a matter of law that the Coast Guard has failed to prove that a speed limit 

exists. Therefore, there can be no violation of a rule of questionable existence; Count 

2 of the Amended Complaint, as further amended, is dismissed with prejudice. 

ACCEPTED AND INCORPORATED. 

9. Count 3 of the Amended Complaint, as further amended, relies on Respondent's 

alleged breach of federal regulatory duty, 33 CFR 162.65(h)(3), which states that 

"Vessels shall proceed at a speed which will not endanger other vessels or structures 

and will not interfere with any work in progress incident to maintaining, improving, 

surveying or marking the channel." 
Another portion of this section, 33 CFR 162.65(b)(6), states: "Meeting and passing. 

Vessels, on meeting or overtaking, shall give the proper signals and pass in accordance with the 

Navigation Rules, International-Inland, Commandant Instruction M16672.2 (series). Rafts shall 

give to vessels the side demanded by proper signal. All vessels approaching dredges or other 

plant engaged on improvements to a waterway, shall give the signal for passing and slow down 

sufficiently to stop if so ordered or if no answering signal is received. On receiving the 

answering signal, they shall then proceed to pass at a speed sufficiently slow to insure safe 

navigation." 

These sections, read as a whole, indicates an emphasis on the safety of "vessels or 

structures" engaged in "maintaining, improving, surveying or marking the channel". None of 

these definitions fits the GOLAR FREEZE or the LNG terminal. 

Further, inasmuch as the Note at the end of this section states, "The Corps of Engineers 

also has regulations dealing with this section in 33 CFR Part 207," I find that the foregoing 

applies to dredges, survey vessels, and buoy tenders and the like and does not apply to the LNG 

tanker or terminal at issue here. 

Count 3 of the Amended Complaint, as amended, is also therefore dismissed with 

prejudice. REJECTED 

10. Respondent has asserted the error in judgment defense in his Answers. 

This defense, simply put, holds that "[tlhere 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 judgment 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." Kime, Commandant v. Hawker, 1993 NTSB Lexis 164, p. 76, citing Decision on 

Appeal No. 1755. 

This defense, in this case, must be examined in light of the applicable speed standard, 

which, although excised from Amended Complaint (at the outset of the proceedings when the 

Coast Guard inserted the Rule 6 violation in Count 3), appears to be "minimum safe speed" as 

directed by MSIB 13-05 dated 12120105. (After the incident, the COTP changed the standard, in 

MSIB 13-05 (Revised) dated 3/23/06, to "bare steerageway".) 

A familiar source, Farwell's Rules of the Nautical Road, of which this Court has taken 

official judicial notice, dedicates an entire chapter to the subject of Safe Speed: 

"Safe speed is a relative term.. .'the prudent mariner must use his best judgment in 

determining what constitutes safe speed for his vessel in order that proper action can be taken to 

avoid collision.. .The phrase 'safe speed' does not preclude the setting of high speed in 

appropriate circumstances. However, 'such a speed can only be justified so long as it is safe to 

proceed and provided that timely action is taken to reduce it or take it off all the way in the light 

of the information supplied.. .there is no bright line rule for determining safe speed." Farwell's, 

pp. 176-177. 

ACCEPTED AND INCORPORATED. Accept only to extent the Error in Judgment defense 

exists at law and the quote from Farwell's Rule of the national Road is accurate. The Error In 

Judgment defense is not applicable here. 

11. The circumstances facing Capt. McCarthy, as those were known to him, at the time of 

his decision to continue past the LNG terminal at a full ahead engine order, consisted 

of: (1) the CHARLESTON (underway as she was at the time of his embarkation, with 

a maximum draft of 26.6 feet and minimal visible wake); (2) the LNG terminal with 
moored tanker and a bridge watch tender (consisting of a licensed docking pilot, later 

determined to be Capt. Parker); (3) the Dredge ARLINGTON, working on the green 

(or port) side of the river at the upper end of The Bight channel; and (4) the outbound 

Tug TARPON, with loaded asphalt barge (whose pilot, Edelman, Jr., notified him 

that it had sailed from its moorings when the CHARLESTON was on Bloody Point 

Range. REJECTED. The enumerated circumstances do not include other factors 

such as the width and depth of the channel, the speed draft and operating 

characteristics and impact on the LNG of the Charleston, the danger surrounding the 

unloading of LNG by the GJBMAR FREEZE, the Coast Guard MSIB requiring 

vessels to operate at minimum safe speed when passing the LNG terminal, etc.. 

12. Additionally, superimposed upon these physical factors, was a layer of regulations 

and laws which controlled his conduct. Capt. McCarthy was generally aware (1) that 

a local ordinance prohibited vessels passing near a dredge; (2) was specifically aware 

that federal regulations required a bridge watch tender aboard the discharging 

tankship to monitor passing vessel traffic, as contained in 33 CFR 165.756(d)(3)(i); 

and (3) was specifically aware that federal regulations prohibited vessels passing 

within 1000 yards of the LNG facility when a tankship is in the slip, as indicated by 

MSIB 13-05 dated 12/20/05. ACCEPTED AND INCORPORATED. 

13. Concerning the speed of the CHARLESTON as she approached and passed the LNG 

terminal, Capt. McCarthy had three options available to him: (1) to maintain current 

speed setting of full ahead; (2) to reduce the speed setting to half ahead; or (3) to 

reduce the speed setting to slow ahead. (Transcript, p. 355). REJECTED 
14. Of these three choices, Capt. McCarthy chose the first option, to maintain current 

speed at a full ahead engine setting. The critical issue in this case is whether his 

choice, in light of the conditions existing at the time the decision was required to be 

made, was reasonable. (An engine order of stop was not an alternative due to the 

necessity to maintain steerageway with a fair current.) (Transcript, p. 66). 

Concerning risks on the river during an inbound transit, Capt. Maxwell testified that one 

of the greatest concerns was outbound (oncoming) traffic: 

A: (By Capt. Maxwell): . . .Pilothiaster Pilot conference, all kind of specific stuff is 

discussed. Outbound traffic is always a big one because we have to make passing arrangements 

at a safe location. (Transcript. pp. 66-67). REJECTED. 

15. Respondent, who boarded the CHARLESTON while underway, learned of the sailing 

downriver of the Tug TARPON when he was approaching Fields Cut, where the ICW 

intersects the North Channel of the Savannah River. (Transcript, p. 339). 

ACCEPTED AND INCORPORATED 

16. Respondent was under orders from the vessel's master, Capt. Maxwell, to turn the 

CHARLESTON in the Fig Island turning basin, so that the CHARLESTON could be 

docked starboard side to at the Conoco Phillips terminal. (Transcript, p. 309). 

ACCEPTED AND INCORPORATED. 

17. Respondent rejected outright the idea of turning in front of the oncoming TARPON. 

(Transcript, p. 356-357). ACCEPTED AND INCORPORATED. Accepted to the 

extent that the Respondent so testified 

18. He was further limited in the section of the river on which he would meet TARPON 

by (1) regulations prohibiting passing within 1000 yards of the LNG slip; (2) The 
Bight channel itself, generally regarded as a dangerous place to pass; and (3) local 

ordinances prohibiting passing near a dredge. 

As Capt. Edelman, Jr., at the helm of the Tug TARPON, testified: 

Q. (By Mr. Raley): Okay. So, you were going to have to pass Captain McCarthy 

either above this bracket or the dredge that was above the bracket, closer to Fort Jackson, right? 

A. (By Capt. Edelman, Jr.) Yes. 

Q. You were going to pass him 

JUDGE FITZPATRICK: Counsel, you're going to you can't mark on that chart, 

that's for a witness to do. 

MR. RALEY: Okay. 

BY MR. RALEY: 

Q. Is that correct 

JUDGE FITZPATRICK: If you want to have him do it, that's fine. 

BY MR. RALEY: 

Q. Is that a correct statement? 

A. Yes. 

Q. So, you're going to have to pass him above 50, is that a fair statement? 

A. Yes. 

Q. Okay. If you could circle 50 there and 

A. Six. 

Q. Yeah, six would be fine. Or downriver, you were going to have to pass him 

around 33,35, somewhere, is that a fair statement? 

A. There's no way I could have made it there. 
Q. You couldn't have made it that far. 

A. No, my tug wasn't fast enough. 

Q. Okay. So, was it better to pass where you actually did pass? 

A. Further up was better except just to make sure I could either pass him before he 

turned or I had to wait at the dock for him to turn and get back down to his dock before I 

proceeded on. 

Q. Okay. And you'd already 

A. We 

Q. --talked. 

A. We already discussed it. 

Q. Okay. So, that was the agreement that you had. All right. So, what actually was 

the better arrangement as it turns out. 

A. Yes. He didn't hold me up. I really didn't hold him up, as far as I know. 

Q. Okay. And there was this sort of blacked out area where you couldn't pass 

any how 

A. That's right. 

Q. -- is that right? 

A. There's no way I could have made it there anyhow. 

Q. Okay. So, what happened was the better choice. 

A. Yes, sir. (Transcript, pp. 184-186). 

REJECTED. Captain McCarthy could have slowed down and passed the Tarpon at other 

locations on the river. 
19. Against the backdrop of the dilemma itself, created by the myriad physical and 

regulatory factors facing Capt. McCarthy, the strongest indicator of the 

reasonableness of Capt. McCarthy's decision is the testimony of the 

CHARLESTON'S master, Capt. Maxwell, who stated that he had the right to 

intervene and to override Capt. McCarthy's decision to pass the LNG terminal on full 

ahead, but refused to do so because he believed Capt. McCarthy's decision to be 

reasonable at the time: 

Q (By Mr. Raley).Is it your understanding apart from any document that you have as the 

Master, the right to intervene in the actions and the orders of the Pilot. 

A (By Capt. Maxwell). Certainly. 

Q. You didn't do that before 

A. No, sir. 

Q. -- before the Charleston passed the LNG Terminal, correct? 

A. That's correct. 

Q. May I assume from that that you believed that Captain McCarthy was handling 

the vessel properly? 

A. Yes, you may. Yes. 

Q. And reasonably under the circumstances? 

A. Yes. 

Q. You did not believe that he was proceeding at an excessive speed at that time, is 

that correct? 

A. At that time, that is correct. 

Q. And if you had believed that, you would have intervened, is that right? 
A. Yes. 

Q. Later, in hindsight, I believe that you have determined that perhaps his actions 

were not proper, is that right? 

A. In hindsight, we certainly should have slowed down. (Transcript., p. 90). 

Capt. Maxwell's understanding of his role is consistent with the case law on this issue: 

"The Master is ultimately responsible for the safety of his vessel at all times regardless of 

whether a pilot is on board. When he observes, or should obsewe, that his vessel will be placed 

in danger by actions of the pilot, the master must take action, even it means interfering with, or 

relieving the pilot." Kime v. Hawker, 1993 NTSB Lexis 164, Order EM-173; docket ME-141 

(July 23,1993), citing cases. REJECTED 

20. Of all of the various factors facing Capt. McCarthy, the only one within his control 

was his speed. He elected, consciously, to maintain the CHARLESTON under an 

engine speed order of full ahead. In doing SO, he avoided passing the TARPON on 

The Bight channel; avoided passing the TARPON near the Dredge ARLINGTON; 

and avoided passing the TARPON near the LNG terminal. REJECTED 

21. "Minimum safe speed" means the minimum speed to maintain rudder control and to 

provide safety to all vessels and structures within the ambit of Capt. McCarthy's 

decision making, not just the LNG terminal. His responsibilities on the river do not 

begin and end with the LNG terminal. Capt. McCarthy was placed in a position, by 

the presence of the Tug TARPON and the Dredge ARLINGTON, of being forced to 

rely upon a bridge watch tender with positive regulatory duties to monitor the 

CHARLESTON'S passing (if he elected to maintain full ahead) versus being forced to 
pass the TARPON near the LNG terminal, on The Bight, or near the ARLINGTON 

(if he elected to slow the CHARLESTON). REJECTED. 

22. Capt. McCarthy did not create this overall situation; instead, he inherited it and used 

his best judgment in addressing all of the competing factors. In sum, the totality of 

the circumstances he faced was not of his own making. REJECTED. 

23. There is no question that Respondent is required to take appropriate precautions 

against reasonably foreseeable risks. See: Farwell's, p. 197. 

However, Respondent's situation, as he approached the LNG terminal, was akin to the 

towboat operator's situation in Magnolia Towing Co., Inc., 764 F.2d 1134 (5th Cir. 1985), 

involving a towboat-bridge allision. In that case, the bridge operator agreed with the towboat 

captain to open the bridge, then failed to do so, causing the allision; the Fifth Circuit Court of 

Appeals held that "the hazard here presented - that the bridge tender, operating in a dense fog, 

would twice say she would raise the bridge span, and then fail to do so -was a totally 

unanticipatable possible hazard not within the intended protection of the excessive speed rule." 

ACCEPTED AND INCORPORATED. 

24. The record is clear that Capt. McCarthy gave four separate securite' broadcasts on 

two distinct VHF radio channels (channels 13 and 16) well before his immediate 

approach to the terminal. ACCEPTED AND INCORPORATED. 

25. Capt. Parker had a positive and specific regulatory duty to "monitor" all passing 

vessel traffic, which would include, at the very least, the fact that the tugs were rafted 

up, without power, on the starboard stern quarter of the GOLAR FREEZE. The 

record is likewise clear that he failed to do so. REJECTED 
26. Similarly, the record is clear that the GOLAR FREEZE itself prevented, despite clear 

visibility, the Respondent from sighting the tugs as he approached the LNG terminal. 

REJECTED. 

27. Another issue in this case is the meaning, in practice, of the term "standby", relative 

to the tugs required to be present at the new slip, as used in the RNA regulations and 

MSIB 13-05. REJECTED. 

28. The RNA regulations state that "[sltandby means immediately available, ready, and 

equipped to conduct operations." 33 CFR 165.756(b). ACCEPTED AND 

INCORPORATED. 

29. While it is unclear whether "standby" requires the tugs to have their engines running 

and pushing on the LNG tanker during a passing vessel's transit, it is clear that the 

tugs should not, by being made fast to the LNG tanker, create additional tension on 

the tanker's mooring lines when the inevitable surge from a passing vessel creates 

hydrodynamic force against the moored tanker. This is supported by credible expert 

testimony provided by Capt. Steve Harvey, a docking pilot holding a federal license 

for the Savannah River whose duties include bridge watch tender: 

Q (By Mr. Raley). If there were a docked vessel, docked tank vessel, docked port side 

to and two tugs were moored to one another, with one or more lines between them, and one line 

running from the inside tug to the starboard side of the moored tanker and there was no engine 

power applied, in other words, the engines were not running on these two tugs, and there's a 

channel off the stern of the vessel at a distance of approximately 500 feet, would you consider 

those two tugs to be on standby? 
A (Capt. Steve McCarthy). Not in tandem like that. I would think they'd just be 

hanging on for convenience. 

Q. Whose convenience? 

A. For theirs, I guess, I mean, I wouldn't have both my tugs hanging together in that position 

if I needed them to work. I'd want them in their position to standby, not in that position. 

Q. So, they're not in standby when they're like that. (Transcript, pp. 483). 

REJECTED. 

30. Respondent had only one opportunity, on February 20,2006 aboard the DILIGENCE, 

to observe the tugs' own interpretation of the meaning of "standby" under MSIB 13- 

05. The record is undisputed that the tugs, during that prior transit, were not rafted 

up, abreast of each other, alongside the GOLAR FREEZE. Instead, they were "bow 

on" the outboard (starboard) side of the GOLAR FREEZE. (Transcript, p. 325-326; 

Exhibit R-C). RETECTED. 

31. Under these facts, the unusual location of the tugs represents an unanticipatable 

hazard that Respondent is not required to assume. Magnolia Towing Co., Inc., 764 

F.2d 1134 (5th Cir. 1985). RElECTED 

32. This conclusion is based, simply, on the imprudence - due to the additional drag 

effect on the moored tanker created upon the inevitable surge of a passing vessel -- of 

the tugs being placed in this location. Particularly in light of Capt. Parker's radio 

silence and inattention - despite positive regulatory duty to the contrary -- 

Respondent should not be forced to assume that the tugs would be in any location 

other than the location at which he actually observed them during his only prior 

transit past the new slip containing an LNG tanker on February 20,2006. Not 
coincidentally, February 20,2006 represented Respondent's first and only transit 

past the LNG terminal after the COTP's waiver of the escort tug requirement, in 

which the tugs were made fast to transiting vessels when a tanker was present in the 

old slip near the channel. REJECTED. 

33. At the outset, there is no evidence that the CHARLESTON'S passing of the GOLAR 

FREEZE was the sole cause of the damage sustained by the GOLAR FREEZE. (TI., 

p. 91). REJECTED. 

34. Likewise, there is no evidence that the GOLAR FREEZE would have sustained 

damage at all if the tugs BULLDOG and DIANE MORAN had not been rafted, 

abreast at the starboard stern quarter of the GOLAR FREEZE. There is also evidence 

that the presence of the "dead tugs", rafted as they were alongside the GOLAR 

FREEZE, contributed to the damage. 

As discussed in the testimony of Capt. Harvey: 

Q. Okay. When the if they were alongside made fast to one another as I've drawn 

here, as we've discussed, with a bow line running from the bow of the end board tug to the 

moored tanker, and there were a vessel passing in the channel approximately 500 feet away from 

the stern of the docked tanker, would those two tugs, without their power engaged, would those 

be helpful or harmful to the conditions of the docked tanker? 

A. They would increase the drag effect of the surge or the suction, they would 

increase the effect. 

Q. What drag effect? 

A. Well, if they weren't tied to the ship, they would it would suck them out into the 

river when you went by. They would if they didn't have the lines to the ship they would leave, 
I mean, they would be pulled away, but by having the line up, they'd pull on the ship. They're 

extra drag. They're extra drag to displacement and all, it creates extra drag. (Transcript, pp. 483- 

484). 

REJECTED 

35. The law in this area is well-settled: "A ship passing piers or docks where other vessels 

are tied up is obligated to proceed carefully and prudently so as to avoid creating 

unusual swells or suction which would damage craft properly moored or installations 

along the shoreline * * ' (Citations). The moving vessel must take into consideration 

the reasonable effects to be anticipated from its speed and motion through the water 

and must take such precautions by way of reduction of speed or alteration of course 

as may be reasonably necessary to prevent such damage * * *" (Citations). Shell Pipe 

Line Corp. v. M/T CYS ALLIANCE, 1982 AMC 389 (E.D. La. 1981), citing 

O'Donnell Transportation Co. v. MN Maryland Trader, 1964 AMC 453,462,228 

F.Supp. 903,909 (SDNY 1963), cited in Creole Shipping, Ltd. v. Diamandis Pateras, 

Ltd., et al., 1977 AMC 189, 194,410 F.Supp. 313,318 (SDAla. 1976), aff'd, 1977 

AMC 1648,554 F.2d 1348. See West India Fruit & Steamship Co. v. Raymond, 1951 

AMC 1648,190 F.2d 673 (5 Cir. 1951). 

"On the other hand, piers and docks along the shoreline are required to be kept in proper 

condition and vessels tied up there must be seaworthy and properly moored so as to resist 

ordinary and normal swells in narrow waters where heavy traffic may be anticipated. Some wash 

from passing vessels is bound to occur and must be anticipated and guarded against. Only 

unusual swells or suction which cannot be reasonably anticipated furnish the basis for a claim * * 

*" (Citations). Id., citing ODonnell Transportation Co., supra, 1964 AMC at 462,228 F.Supp. at 
909, cited in Creole Shipping, Ltd., supra, 1977 AMC at 195,410 F.Supp. at 318. See West India 

Fruit & Steamship Co., supra. (bold supplied). ACCEPTED AND INCORPORATED. 

36. As such, Capt. Parker's turning a blind eye to the CHARLESTON, which he did not even 

know was on the Savannah River that morning, cannot be the basis of a claim by the terminal or 

the GOLAR FREEZE that some surge was "not anticipated." REJECTED 

36. The surge from the CHARLESTON passing at full speed ahead 500 feet from the 

GOLAR FREEZE could not have been reasonable anticipated. REJECTED. 

37. As a matter of law, I find that Capt. McCarthy exercised his best judgment, under the 

conditions and circumstances prevailing, in determining to maintain a full ahead 

speed setting and therefore has proven the error in judgment defense. REJECTED. 
ATTACHMENT D - STATUTES AND REGULATIONS INVOLVED 

A. Statutes. 

5 U.S.C. 551. Definitions. 

For the purpose of this subchapter-. 

(1) "agency" means each authority of the Government of the United States, whether or not it is 

within or subject to review by another agency, but does not include-- 

(A) the Congress; 

(B) the courts of the United States; 

(C) the governments of the territories or possessions of the United States; 

(D) the government of the District of Columbia; 

or except as to the requirements of section 552 of this title-- 

(E) agencies composed of representatives of the parties or of representatives of organizations of 

the parties to the disputes determined by them; 

(F) courts martial and military commissions; 

(G) military authority exercised in the field in time of war or in occupied territory; or 

(H) functions conferred by sections 1738, 1739,1743, and 1744 of title 12; chapter 2 of title 41: 

subchapter I1 of chapter 471 of title 49; or sections 1884,1891-1902, and former section 

1641(b)(2), of title 50, appendix; 

(2) "person" includes an individual, partnership, corporation, association, or public or private 

organization other than an agency; 

(3) "party" includes a person or agency named or admitted as a party, or properly seeking and 

entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency 

admitted by an agency as a party for limited purposes; 
(4) "rule" means the whole or a part of an agency statement of general or particular applicability 

and future effect designed to implement, interpret, or prescribe law or policy or describing the 

organization, procedure, or practice requirements of an agency and includes the approval or 

prescription for the future of rates, wages, corporate or financial structures or reorganizations 

thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or 

accounting, or practices bearing on any of the foregoing; 

(5) "rule making" means agency process for formulating, amending, or repealing a rule; 

(6) "order" means the whole or a part of a final disposition, whether affirmative, negative, 

injunctive, or declaratory in form, of an agency in a matter other than rule making but including 

licensing; 

(7) "adjudication" means agency process for the formulation of an order; 

(8) "license" includes the whole or a part of an agency permit, certificate, approval, registration, 

charter, membership, statutory exemption or other form of permission; 

(9) "licensing" includes agency process respecting the grant, renewal, denial, revocation, 

suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a 

license; 

(10) "sanction" includes the whole or a part of an agency-- 

(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person; 

(B) withholding of relief; 

(C) imposition of penalty or fine; 

(D) destruction, taking, seizure, or withholding of property; 

(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees; 

(F) requirement, revocation, or suspension of a license; or 
(G) taking other compulsory or restrictive action; 

(11) "relief" includes the whole or a part of an agency-- 

(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy; 

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or 

(C) taking of other action on the application or petition of, and beneficial to, a person; 

(12) "agency proceeding" means an agency process as defined by paragraphs (S), (7), and (9) of 

this section; 

(13) "agency action" includes the whole or a part of an agency rule, order, license, sanction, 

relief, or the equivalent or denial thereof, or failure to act; and 

(14) "ex parte communication" means an oral or written communication not on the public record 

with respect to which reasonable prior notice to all parties is not given, but it shall not include 

requests for status reports on any matter or proceeding covered by this subchapter. 

33 U.S.C. 3 2006 (Rule 6). 

Every vessel shall at all times proceed at a safe speed so that she can take proper and effective 

action to avoid collision and be stopped within a distance appropriate to the prevailing 

circumstances and conditions. 

In determining a safe speed the following factors shall be among those taken into account: 

(a) By all vessels: 
(i) the state of visibility; 

(ii) the traffic density including concentration of fishing vessels or any other vessels; 

(iii) the maneuverability of the vessel with special reference to stopping distance and turning 

ability in the prevailing conditions; 

(iv) at night the presence of background light such as from shores lights or from back scatter of 

her own lights; 

(v) the state of wind, sea, and current, and the proximity of navigational hazards; 

(vi) the draft in relation to the available depth of water. 

(b) Additionally, by vessels with operational radar: 

(i) the characteristics, efficiency and limitations of the radar equipment; 

(ii) any constraints imposed by the radar range scale in use; 

(iii) the effect on radar detection of the sea state, weather, and other sources of interference; 

(iv) the possibility that small vessels, ice and other floating objects may not be detected by radar 

at an adequate range; 

(v) the number, location, and movement of vessels detected by radar; and 

(vi) the more exact assessment of the visibility that may be possible when radar is used to 

determine the range of vessels or other objects in the vicinity. 

46 U.S.C. 3 7703. Bases for suspension or revocation 

A license, certificate of registry, or merchant mariner's document issued by the Secretary may be 

suspended or revoked if the holder-- 
(1) when acting under the authority of that license, certificate, or document- 

(A) has violated or fails to comply with this subtitle, a regulation prescribed under this subtitle, 

or any other law or regulation intended to promote marine safety or to protect navigable waters; 

or 

(B) has committed an act of misconduct or negligence; 

(2) is convicted of an offense that would prevent the issuance or renewal of a license, certificate 

of registry, or merchant mariner's document; 

(3) within the 3-year period preceding the initiation of the suspension or revocation proceeding is 

convicted of an offense described in section 30304(a)(3)(A) or (B) of title 49; 

(4) has committed an act of incompetence relating to the operation of a vessel; or 

(5) is a security risk that poses a threat to the safety or security of a vessel or a public or 

commercial structure located within or adjacent to the marine environment. 

B. Regulations 

33 CFR 20.701 Standard of proof. 

The party that bears the burden of proof shall prove his or her case or affirmative defense by a 

preponderance of the evidence. 
33 CFR 162.65 All waterways tributary to the Atlantic Ocean south of Chesapeake Bay and all 

waterways tributary to the Gulf of Mexico east and south of St. Marks, Fla. 

(a) Description; This section applies to the following: 

(1) Waterways. All navigable waters of the United States, natural or artificial, including bays, 

lakes, sounds, rivers, creeks, intracoastal waterways, as well as canals and channels of all types, 

which are tributary to or connected by other waterways with the Atlantic Ocean south of 

Chesapeake Bay or with the Gulf of Mexico east and south of St. Marks, Florida. 

(2) United States property. All river and harbor lands owned by the United States in or along the 

waterways described in paragraph (a)@) of this paragraph, including lock sites and all structures 

thereon, other sites for Government structures and for the accommodation and use of employees 

of the United States, and rights of way and spoil disposal areas to the extent of Federal interest 

therein. 

(3) Vessels and rafts. The term "vessel" as used in this section includes all floating things moved 

over these waterways other than rafts. 

(b) Waterways-- 

(1) Fairway. A clear channel shall at all times be left open to permit free and unobstructed 

navigation by all types of vessels and rafts that normally use the various waterways or sections 

thereof. The District Commander may specify the width of the fairway required in the various 

waterways under his charge. 

(2) Stoppage in waterway, anchorage or mooring. 

(i) No vessels or rafts shall anchor or moor in any of the land cuts or other narrow parts of the 

waterway, except in case of an emergency. Whenever it becomes necessary for a vessel or raft to 

stop in any such portions of the waterway it shall be securely fastened to one bank and as close 
to the bank as possible. This shall be done only at such a place and under such conditions as will 

not obstruct or prevent the passage of other vessels or craft. Stoppages shall be only for such 

periods as may be necessary. 

(ii) No vessel or raft will be allowed to use any portion of the fairway as a mooring place except 

temporarily as authorized above without the written permission from the District Commander. 

(iii) When tied up, all vessels must be moored by bow and stem lines. Rafts and tows shall be 

secured at sufficiently close intervals to insure their not being drawn away from the bank by 

winds, currents or the suction of passing vessels. Tow lines shall be shortened so that the 

different parts of the tow shall be as close together as possible. In Narrow sections, no vessel or 

raft shall be tied abreast of another. 

(iv) Lights shall be displayed in accordance with provisions of the Navigation Rules, 

International-Inland, Commandant Instruction M16672.2 (series). 

(v) No vessel, even if fastened to the bank as prescribed in paragraph @)(2)(i) of this section, 

shall be left without a sufficient crew to care for it properly. 

(vi) Vessels will not be permitted to load or unload in any of the land cuts except as a regular 

established landing or wharf without written permission secured in advance from the District 

Commander. 

(vii) No vessel, regardless of size, shall anchor in a dredged channel or narrow portion of a 

waterway for the purpose of fishing, if navigation is obstructed, thereby. 

(viii) Except in cases of emergency the dropping of anchors, weights, or other ground tackle, 

within areas occupied by submarine cable or pipe crossings, is prohibited. Such crossings will 

ordinarily be marked by signboards on each bank of the shore or indicated on coast charts. 

(3) Speed. 
(i) Vessels shall proceed at a speed which will not endanger other vessels or structures and will 

not interfere with any work in progress incident to maintaining, improving, surveying or marking 

the channel. 

(ii) Official signs indicating limiting speeds through critical portions of the waterways shall be 

strictly obeyed. 

(iii) Vessels approaching and passing through a bridge shall so govern their speed as to insure 

passage through the bridge without damage to the bridge or its fenders. 

(4) Assembly and handling of tows. 

(i) All vessels drawing tows and equipped with rudders shall use two tow lines or a bridle and 

shorten them to the greatest possible extent so as to have full control at all times. The various 

parts of a tow shall be securely assembled with the individual units connected by lines as short as 

practicable. If necessary, as in the case of lengthy or cumbersome tows or tows in restricted 

channels, the District Commander may require that tows be broken up and may require the 

installation of a rudder, drag or other approved steering device on the tow in order to avoid 

obstructing navigation or damaging the property of others, including aids to navigation 

maintained by the United States or under its authorization, by collision or otherwise. 

(ii) No tow shall be drawn by a vessel that has insufficient power or crew to permit ready 

maneuverability and safe handling. 

(iii) Tows desiring to pass a bridge shall approach the opening along the axis of the channel so as 

to pass through without danger of striking the bridge or its fenders. No vessel or tow shall 

navigate through a drawbridge until the movable span is fully opened. 

(iv) In the event that it is evident to the master of a towing vessel that a tow cannot be safely 

handled through a bridge, it will be brought to anchor and the towed vessels will be taken 
through the bridge in small units, or singly if necessary, or the tow will wait until navigation 

conditions have improved to such an extent that the tow can pass through the bridge without 

damage. 

(5) Projections from vessels. No vessel carrying a deck load which overhangs or projects over 

the side of said vessel, or whose rigging projects over the side of the vessel so as to endanger 

passing vessels, wharves or other property, will enter or pass through any of the narrow parts of 

the waterway. 

(6) Meeting and passing. Vessels, on meeting or overtaking, shall give the proper signals and 

pass in accordance with the Navigation Rules, International-Inland, Commandant Instruction 

M16672.2 (series). Rafts shall give to vessels the side demanded by proper signal. All vessels 

approaching dredges or other plant engaged on improvements to a waterway, shall give the 

signal for passing and slow down sufficiently to stop if so ordered or if no answering signal is 

received. On receiving the answering signal, they shall then proceed to pass at a speed 

sufficiently slow to insure safe navigation. 

33 CFR 165.756 Regulated Navigation Area; Savannah River, Georgia. 

(a) Regulated Navigation Area (RNA). The Savannah River between Fort Jackson (32" 04.93' N, 

081" 02.19' W) and the Savannah River Channel Entrance Sea Buoy is a regulated navigation 

area. All coordinates are North American Datum 1983. 

(b) Definitions. The following definitions are used in this section: 
Bollard pull is an industry standard used for rating tug capabilities and is the pulling force 

imparted by the tug to the towline. It means the power that an escort tug can apply to its working 

line(s) when operating in a direct mode. 

Direct Mode is a towing technique which is defined as a method of operation by which a towing 

vessel generates towline forces by thrust alone at an angle equal to or nearly equal to the towline, 

or thrust forces applied directly to the escorted vessel's hull. 

Indirect Mode is a towing technique that, for the purpose of this section, is defined as a method 

of operation by which an escorting towing vessel generates towline forces by a combination of 

thrust and hydrodynamic forces resulting from a presentation of the underwater body of the 

towing vessel at an oblique angle to the towline. This method increases the resultant bollard pull, 

thereby arresting and controlling the motion of an escorted vessel. 

LNG tankship means a vessel as described in 46 CFR 154. 

Made-up means physically attached by cable, towline, or other secure means in such a way as to 

be immediately ready to exert force on a vessel being escorted. 

Make-up means the act of, or preparations for becoming made-up. 

Operator means the person who owns, operates, or is responsible for the operation of a facility or 

vessel. 

Savannah River Channel Entrance Sea Buoy means the aid to navigation labeled R W "T" Mo 

(A) WHIS on the National Oceanic and Atmospheric Administration's (NOAA) Nautical Chart 

11512. 

Standby means immediately available, ready, and equipped to conduct operations. 

Underway means that a vessel is not at anchor, not made fast to the shore, or not aground. 
(c) Applicability. This section applies to all vessels operating within the RNA, including naval 

and other public vessels, except vessels that are engaged in the following operations: 

(1) Law enforcement or search and rescue operations; 

(2) Servicing aids to navigation; 

(3) Surveying, maintenance, or improvement of waters in the RNA; or 

(4) Actively engaged in escort, maneuvering or support duties for the LNG tankship. 

(d) Regulations. 

(1) Requirements for vessel operations while a LNG tankship is underway within the RNA: 

(i) Except for a vessel that is moored at a marina, wharf, or pier, and remains moored, no vessel 

1600 gross tons or greater may approach within two nautical miles of a LNG tankship that is 

underway within the RNA without the permission of the Captain of the Port (COTP). 

(ii) All vessels under 1600 gross tons shall keep clear of transiting LNG tankships. 

(iii) The owner, master, or operator of a vessel carrying liquefied natural gas (LNG) shall: 

(A) Comply with the notice requirements of 33 CFR 160. Updates are encouraged at least 12 

hours before arrival at the RNA boundaries. The COTP may delay the vessel's entry into the 

RNA to accommodate other commercial traffic. LNG tankships are further encouraged to 

include in their notice a report of the vessel's propulsion and machinery status and any 

outstanding recommendations or deficiencies identified by the vessel's classification society and, 

for foreign flag vessels, any outstanding deficiencies identified by the vessel's flag state. 

(13) Obtain permission from the COTP before commencing the transit into the RNA. 

(C) While transiting, make security broadcasts every 15 minutes as recommended by the U.S. 

Coast Pilot 4 Atlantic Coast. The person directing the vessel must also notify the COTP 
telephonically or by radio on channel 13 or 16 when the vessel is at the following locations: Sea 

Buoy, Savannah Jetties, and Fields Cut. 

(D) Not enter or get underway within the RNA if visibility during the transit is not sufficient to 

safely navigate the channel, andior wind speed is, or is expected to be, greater than 25 knots. 

(E) While transiting the RNA, the LNG tankship shall have sufficient towing vessel escorts. 

(2) Requirements for LNG facilities: 

(i) The operator of a facility where a LNG tankship is moored shall station and provide a 

minimum of two escort towing vessels each with a minimum of 100,000 pounds of bollard pull, 

4,000 horsepower and capable of safely operating in the indirect mode, to escort transiting 

vessels 1600 gross tons or greater past the moored LNG tankship. 

(ii) In addition to the two towing vessels required by paragraph (d)(2)(i) of this section, the 

operator of the facility where the LNG tankship is moored shall provide at least one standby 

towing vessel of sufficient capacity to take appropriate actions in an emergency as directed by 

the LNG vessel bridge watch. 

(3) Requirements for vessel operations while a LNG tankship is moored: 

(i) While moored within the RNA, LNG tankships shall maintain a bridge watch of appropriate 

personnel to monitor vessels passing under escort and to coordinate the actions of the standbytowing vessel required in paragraph (d)(2)(ii) of this section in the event of emergency. 

(ii) Transiting vessels 1600 gross tons or greater, when passing a moored LNG tankship, shall 

have a minimum of two towing vessels, each with a minimum capacity of 100,000 pounds of 

bollard pull, 4,000 horsepower, and the ability to operate safely in the indirect mode, made-up in 

such a way as to be immediately available to arrest and control the motion of an escorted vessel 

in the event of steering, propulsion or other casualty. While it is anticipated that vessels will 

utilize the facility provided towing vessel services required in paragraph (d)(2)(i) of this section, 

this regulation does not preclude escorted vessel operators from providing their own towing 

vessel escorts, provided they meet the requirements of this part. 

(A) Outbound vessels shall be made-up and escorted from Bight Channel Light 46 until the 

vessel is safely past the LNG dock. 

(B) Inbound vessels shall be made-up and escorted from Elba Island Light 37 until the vessel is 

safely past the LNG dock. 

(iii) All vessels of less than 1600 gross tons shall not approach within 70 yards of an LNG 

tankship. 

(e) LNG Schedule. The Captain of the Port will issue a Broadcast Notice to Mariners to inform 

the marine community of scheduled LNG tankship activities during which the restrictions 

imposed by this section are in effect. 

(f) Waivers. 

(1) The COTP may waive any requirement in this section, if the COTP finds that it is in the best 

interest of safety or in the interest of national security. 

(2) An application for a waiver of these requirements must state the compelling need for the 

waiver and describe the proposed operation and methods by which adequate levels of safety are 

to be obtained. 

(g) Enforcement. Violations of this section should be reported to the Captain of the Port, 

Savannah, at (912) 652-4353. In accordance with the general regulations in 5 165.13 of this part, 

no person may cause or authorize the operation of a vessel in the regulated navigation area 

contrary to the provisions of this section. 
46 CFR 5.5 Purpose of administrative actions. 

The administrative actions against a license, certification or document are remedial and not penal 

in nature. These actions are intended to help maintain standards for competence and conduct 

essential to the promotion of safety at sea. 

46 CFR 5.27 Misconduct. 

"Misconduct" is human behavior which violates some formal, duly established rule. Such rules 

are found in, among other places, statutes, regulations, the common law, the general maritime 

law, a ship's regulation or order, or shipping articles and similar sources. It is an act which is 

forbidden or a failure to do that which is required. 

* * * 

46 CFR 5.29 Negligence. 

"Negligence" is 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. 

46 CFR 5.33 Violation of law or regulation. 

Where the proceeding is based exclusively on that part of title 46 U.S.C. section 7703, which 

provides as a basis for suspension or revocation, a violation or failure to comply with 46 U.S.C. 

subtitle 11, a regulation prescribed under that subtitle, or any other law or regulation intended to 

promote marine safety or protect navigable waters, the complaint must state the specific statute 

or regulation by title and section number, and the particular manner in which it was allegedly 

violated. 

46 CFR 5.57 Acting under authority of license, certificate or document. 

(a) A person employed in the service of a vessel is considered to be acting under the authority of 

a license, certificate or document when the holding of such license, certificate or document is: 

(1) Required by law or regulation; or 

(2) Required by an employer as a condition for employment. 
(b) A person is considered to be acting under the authority of the license, certificate or document 

while engaged in official matters regarding the license, certificate or document. This includes, 

but is not limited to, such acts as applying for renewal of a license, taking examinations for 

upgrading or endorsements, requesting duplicate or replacement licenses, certificates or 

documents, or when appearing at a hearing under this part. 

(c) A person does not cease to act under the authority of a license, certificate or document while 

on authorized or unauthorized shore leave from the vessel. 

46 CFR 15.812 Pilots. 

(a) Except as specified in paragraph (f) of this section, the following vessels, not sailing on 

register, when underway on the navigable waters of the United States, must be under the 

direction and control of an individual qualified to serve as pilot under paragraph (b) or (c) of this 

section as appropriate: 

(I) Coastwise seagoing vessels propelled by machinery and subject to inspection under 46 

U.S.C. Chapter 33, and coastwise seagoing tank barges subject to inspection under 46 U.S.C. 

Chapter 37; 

(2) Vessels that are not authorized by their Certificate of Inspection to proceed beyond the 

Boundary Line established in part 7 of this Chapter which are in excess of 1,600 gross tons, 

propelled by machinery, and subject to inspection under 46 U.S.C. chapter 33; and 
(3) Vessels operating on the Great Lakes that are propelled by machinery and subject to 

inspection under 46 U.S.C. chapter 33, or are tank barges subject to inspection under 46 U.S.C. 

chapter 37. 

(b) The following individuals may serve as a pilot for a vessel subject to paragraph (a) of this 

section, when underway on the navigable waters of the United States that are designated areas. 

(1) An individual holding a valid first class pilot's license issued by the Coast Guard, operating 

within the restrictions of his or her license, may serve as pilot on any vessel to which this section 

applies. 

(2) An individual holding a valid license issued by the Coast Guard as master or mate, employed 

aboard a vessel within the restrictions of his or her license, may serve as pilot on a vessel of not 

more than 1,600 gross tons propelled by machinery, described in paragraphs (a)(l) and (a)(3) of 

this section, provided he or she: 

(i) Is at least 21 years old; 

(ii) Complies with the currency of knowledge provisions of § 10.713 of this chapter; and 

(iii) Has completed a minimum of four round trips over the route to be traversed while in the 

wheelhouse as watchstander or observer. At least one of the round trips must be made during the 

hours of darkness if the route is to be traversed during darkness. 

(3) An individual holding a valid license issued by the Coast Guard as master, mate, or operator 

employed aboard a vessel within the restrictions of his or her license, may serve as pilot on a 

tank barge or tank barges totalling not more than 10,000 gross tons, described in paragraphs 

(a)(l) and (a)(3) of this section, provided he or she: 

(i) Is at least 21 years old; 

(ii) Complies with the currency of knowledge provisions of § 10.713 of this chapter; 
(iii) Has a current physical examination in accordance with the provisions of 3 10.709 of this 

chapter; 

(iv) Has at least six months service in the deck department on towing vessels engaged in towing 

operations; and 

(v) Has completed a minimum of twelve round trips over the route to be traversed, as an observer 

or under instruction in the wheelhouse. At least three of the round trips must be made during the 

hours of darkness if the route is to be traversed during darkness. 

(c) An individual holding a valid license issued by the Coast Guard as master, mate, or operator, 

employed aboard a vessel within the restrictions of his or her license, may serve as a pilot for a 

vessel subject to paragraph (a)(l) and (a)(2) of this section, when undeway on the navigable 

waters of the United States that are not designated areas of pilotage waters, provided he or she: 

(1) Is at least 21 years old; 

(2) Complies with the currency of knowledge provisions of 3 10.713 of this chapter; and 

(3) Has a current physical examination in accordance with the provisions of 8 10.709 of this 

chapter. 

(d) In any instance when the qualifications of a person satisfying the requirements for pilotage 

through the provisions of this Subpart are questioned by the Coast Guard, the individual shall, 

within a reasonable time, provide the Coast Guard with documentation proving compliance with 

the applicable portion(s) of paragraphs (b) and (c) of this section. 

(e) Federal pilotage requirements contained in paragraphs (a) through (d) of this section are 

summarized in two quick reference tables. 

(1) Table 15.812(e)(1) provides a guide to the pilotage requirements for inspected, self-propelled 

vessels. 
............................................................................... 

Table 15.812(e)(l).--Quick Reference Table for Federal Pilotage Requirements 

for U.S. Inspected Self-Propelled Vessels, Not Sailing on Register 

Designated areas Nondesignated areas of 

of pilotage pilotage waters (between 

waters (routes the three mile line and 

for which the start of traditional 

First Class pilotage routes) 

Pilot's 

licenses are 

issued) 

Inspected self-propelled 

vessels greater than 1,600 

GT, authorized by their 

Certificate of Inspection 

(C01) to proceed beyond the 

Boundary Line, or operating 

on the Great Lakes ........... First Class 

Pilot ......... Master or Mate may serve as 

pilot if the individual: 

1. Is at least 21 years old. 
2. Has an annual physical 

exam. 

3. Maintains current 

knowledge of the waters to 

be navigated. [FNl] 

Inspected self-propelled 

vessels not more than 1,600 

GT, authorized by their 

Certificate of Inspection to 

proceed beyond the Boundary 

Line, or operating on the 

Great Lakes .................. First Class 

Pilot, or 

Master or Mate 

may serve as 

pilot if the 

individual: ... Master or Mate may serve as 

pilot if the individual: 

1. Is at least 

21 years old ... 1. Is at least 21 years old. 

2. Maintains 

current 

knowledge of 
the waters to 

be navigated. 

[F'Nl] ......... 2. Maintains current 

knowledge of the waters to 

be navigated. [FT\Il] 

Inspected self-propelled 

vessels greater than 1,600 

GT, not authorized by their 

C01 to proceed beyond the 

Boundary Line (Inland route 

vessels); other than vessels 

operating on the Great Lakes . First Class 

Pilot ......... Master or Mate may serve as 

pilot if the individual: 

1. Is at least 21 years old. 

2. Has an annual physical 

exam. 

3. Maintains current 

knowledge of the waters to 

be navigated. [FNl] 

Inspected self-~ro~elled 

vessels not more than 1,600 

GT, not authorized by their 
COI to proceed beyond the 

Boundary Line (Inland route 

vessels); other than vessels 

operating on the Great Lakes . No pilotage 

requirement ... No pilotage requirement. 

FN1 One round trip within the past 60 months. 

FN2 If the route is to be traversed during darkness, 1 of the 4 round trips 

must be made during darkness. 

(2) Table 15.812(e)(2) provides a guide to the pilotage requirements for tank barges. 

Table 15.812(e)(2).--Quick Reference Table for Federal Pilotage Requirements 

for U.S. Inspected Tank Barges, not Sailing on Register 

Designated areas of Nondesignated areas of pilotage 

pilotage waters waters (between the three 

(routes for which mile line and the start of 

First Class Pilot's traditional pilotage routes) 

licenses are issued) 
Tank Barges greater 

than 10,000 GT, 

authorized by their 

Certificate of 

Inspection to 

proceed beyond the 

Boundary Line, or 

operating on the 

Great Lakes ........ First Class Pilot ...... Master, Mate, or Operator may 

serve as pilot if the 

individual: 

1. Is at least 21 years old. 

2. Has an annual physical exam. 

3. Maintains current knowledge 

of the waters to be 

navigated. [FN2] 

4. Has at least 6 months' 

service in the deck 

department on towing vessels 

engaged in towing. 

Tank Barges 10,000 GT 
or less, authorized 

by their 

Certificate of 

Inspection to 

proceed beyond the 

Boundary Line, or 

operating on the 

Great Lakes ........ First Class Pilot, or 

Master, Mate, or 

Operator may serve as 

pilot if the 

individual: .......... Master, Mate, or Operator may 

serve as pilot if the 

individual: 

1. Is at least 21 years 

old .................. 1. Is at least 21 years old. 

2. Has an a~ual 

physical exam. [FNl] .2. Has an annual physical exam. 

3. Maintains current 

knowledge of the 

waters to be 

navigated. [FN2] ..... 3. Maintains current knowledge 
of the waters to be 

navigated. [FN2] 

4. Has at least 6 

months' service in 

the deck department 

on towing vessels 

engaged in towing 

operations ............ 4. Has at least 6 months' 

service in the deck 

department on towing vessels 

engaged in towing operations. 

5. Has 12 round trips 

over the route. [FN?] 

Tank Barges 

authorized by their 

Certificate of 

Inspection for 

Inland routes only 

(Lakes, Bays, and 

Sounds/Rivers); 

other than vessels 

operating on the 

Great Lakes ........ No pilotage requirement No pilotage requirement 
FN1 Annual physical exam does not apply to an individual who will serve as a 

pilot of a Tank Barge of less than 1,600 gross tons. 

FN2 One round trip within the past 60 months. 

FN3 If the route is to be traversed during darkness, 3 of the 12 round trips 

must be made during darkness. 

(f) In Prince William Sound, Alaska, coastwise seagoing vessels over 1,600 gross tons and 

propelled by machinery and subject to inspection under 46 U.S.C. Chapter 37 must: 

(I) When operating from 60degrees49' North latitude to the Port of Valdez be under the direction 

and control of a federally licensed pilot who: 

(i) Is operating under the Federal license; 

(ii) Holds a license issued by the State of Alaska; and 

(iii) Is not a member of the crew of the vessel. 

(2) Navigate with either two licensed deck officers on the bridge or a federally licensed pilot 

when operating South of 60degrees49' North latitude and in the approaches through 

Hinchinbrook Entrance and in the area bounded: 

(i) On the West by a line one mile west of the western boundary of the Traffic Separation 

Scheme; 

(ii) On the East by 146degrees001 West longitude; 

(iii) On the North by 60degrees49' North latitude; and 

(iv) On the South by that area of Hinchinbrook Entrance within the territorial sea bounded by 

60degrees07' North latitude and 146degrees 31.5' West longitude. 
ATTACHMENT E - SUBPART J 

33 CPR 20.1001 General. 

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

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

@) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the AW abused his or her discretion. 

(4) The AU's denial of a motion for disqualification. 

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

hearing was held or that in the issuance of the decision the AW did not consider 

evidence that that person would have presented. 

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

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 
(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the AW's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party. 

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

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

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALl's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 
(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief. 

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

an AU's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the AU 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the AW's decision or should remand the case for further 

proceedings. 

@) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person. 
Certificate of Service 

I hereby certify that I have this day served the foregoing Order by Fed Ex upon the 

following parties and limited participants (or designated representatives) in this proceeding at the 

address indicated: 

CWO Tufts 

United States Coast Guard 

Marine Safety Unit 

100 W. Oglethorpe Avenue 

Savannah, GA 31401 

Fax: 912-652-4052 

Charles H. Raley, Jr. Esquire 

Portman & Raley, LLC 

P.O. Box 9087 

Savannah, GA 31412 

Fax: 912-234-6430 

(Attorney for Respondent) 

David F. Sipple, Esquire 

Hunter, MacLean, Exley & Dunn, P.C. 

2b0 E. St. Julian Street 

P.O. Box 9848 

Savannah, GA 31412 

Fax: 912-232-3253 

(Attorney for witness Southern LNG, Inc.) 

T. Langston Bass, Jr. 

Brennan, Harris & Rominger LLP 

2 East Bryan Street, Suite 1300 

P.O. Box 2784 

Savannah, GA 31402 

Fax: 912-236-4558 

(Attorney for witness Captain Tommy Parker) 

P anice Parker 

(,,/paralegal to the Administrative Law Judge 

Done and Dated on November 29,2006 at 

Norfolk, VA