UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD, 

Complainant, 

vs. 

MA YLON E. GREEN, 

Respondent 

BEFORE: JOSEPH N. INGOLIA, 

Chief Administrative Law Judge 

APPEARANCES: 

FOR THE COAST GUARD 

LCDR Jolm Nadeau, 

LT Russell E. Bowman, and 

PO Eric Crumble 

2401 Hawkins Point Road 

Baltimore, MD 21226 

FOR THE RESPONDENT 

James P. Gillence, Jr., Esq. And 

Eric B. London 

McGuire Woods, LLP 

7 Saint Paul Sh·eet, Suite 1000 

Baltimore, MD 21202 

1 

Docket Number: 00~0826 

Case Number: PA00002131 

DECISION AND ORDER 
I. PRELIMINARY STATEMENT 

The United States Coast Guard ("Coast Guard) initiated this administrative 

action seeking a six (6) month outright suspension of Merchant Mariner's License 

Number 867686 issued to respondent Maylon Everett Green. This administrative 

action was brought pursuant to the legal authority contained in 46 U.S.C. § 7703 

and its underlying regulations codified at 46 C.F.R. Part 5. The Coast Guard 

issued a com:elaint on December 4, 2000, which charged respondent Green with _____ _ -----------

Negligence, resulting from the collision between the water taxi, INDOMITABLE, 

and the harbor shuttle, PHOENIX, in Baltimore, Maryland's Inner Harbor on 

August 12,2000. 

The negligence charge against respondent Green is supported by five 

offenses. The charge and underlying offenses read as follows: 

First Offense -Violation of Law (33 U.S.C. § 2005) 

1. While underway, you failed to maintain a proper look-out so as to make 

a full appraisal of the situation and the risk of collision between the 

INDOMITABLE and the water taxi PHOENIX, a violation of 33 ·u.s. c. § 

2005 (Rule 5 of the Inland Navigation Rules, "Look-out"). 

Second Offense- Violation of Law (33 U.S.C. § 2007) 

1. You were approaching another power-driven vessel, the PHOENIX, on 

reciprocal or nearly reciprocal courses. 

2 
2. You failed to properly evaluate the meeting situation between the 

INDO MIT ABLE and PHOENIX to determine the risk of collision, a 

violation of 33 U.S.C. § 2007 (Rule 7 of the Inland Navigation Rules, 

"Risk of Collision"). 

Third Offense- Violation of Law (33 U.S.C. § 2014) 

1. You were approaching another power-driven vessel, the PHOENIX, on 

reciprocal or nearly reciprocal courses so as to involve risk of collision. 

2. You failed to alter course to starboard so that you could pass on the port 

side of the PHOENIX, a violation of 33 U.S.C. § 2014 (Rule 14 of the 

Inland Navigation Rules, "Head-on Situation"). 

Fourth Offense -Violation of Law (33 U.S.C. § 2008) 

1. You were approaching another power-driven vesset the PHOENIX, on 

reciprocal or nearly reciprocal courses so as to involve risk of collision. 

2. Your actions to avoid a collision with the PHOENIX were not made in 

ample time and, in that they did result in passing at a safe distance, were 

ineffective, a violation of 33 U.S.C. § 2008 (Rule 8 of the Inland 

Navigation Rules," Action to Avoid Collision"). 

Fifth Offense - Negligence 

1. You failed to maintain a proper look-out, failed to properly evaluate the 

meeting situation and deterinine the risk of collision, and failed to alter 

course to starboard to allow a port to port passage with the PHOENIX. 

3 
2. Your failure to commit these actions contributed to the collision that 

occurred with the water taxi PHOENIX, seriously injuring one of your 

passengers and endangering the other passengers on your vessel, as well 

as approximately 60 persons on board the PHOENIX. 

Respondent Green filed an answer to the Coast Guard's complaint and 

requested a hearing. More specifically, respondent admitted all jurisdictional· 

allegations contained in the complaint and denied all allegations under all five 

offenses. The hearing in this matter was initially set for February 22, 2001. 

·Pursuant to the Coast Guard's unopposed Motion to Postpone the Hearing, the 

proceeding was continued and rescheduled for hearing on March 20,2001. 

The hearing convened on March 20,2001, in Baltimore, Maryland before the 

Honorable Joseph N. Ingolia, Chief Administrative Law Judge of the United 

States Coast Guard. The hearing was conducted in accordance with the 

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

and the Coast Guard procedural regulations located at 33 C.P.R. Part 20. The 

United States Coast Guard was represented at the hearing by Lieutenant 

Commander John Nadeau, Petty Officer Eric Crumble, and Lieutenant Russell E. 

Bowman. Respondent Green also appeared at the hearing accompanied by 

counsel, James P. Gillence, Jr., Esq. and Eric B. London, Esq. of McGuire Woods, 

LLP. 

A total of thirteen (13) witnesses, including respondent Green, testified in 

this proceeding. At the hearing, the Coast Guard introduced three (3) exhibits 

4 
into evidence, together with its Memorandum of Points and Authorities. 

Respondent introduced two (2) exhibits into evidence at the hearing. 

After careful review of the facts and applicable law in this case, I find that 

the Coast Guard has established by a preponderance of reliable and credible 

evidence that respondent Maylon E. Green committed an act of negligence on 

August 12, 2000 by violating the Inland Navigation Rules requiring him, as 

operator of a vessel, to maintain a proper lookout, to assess the risk of collision 

with an approaching vessel, and to initiate evasive maneuvers in a timely 

fashion. In doing so, respondent negligently contributed to the collision between 

the water taxi INDO MIT ABLE and the harbor shuttle PHOENIX. 

II. FINDINGS OF FACT 

1. Respondent Maylon Green is the holder of U.S. Coast Guard License No. 

867686. He has held a Coast Guard license for approximately twenty 

years and has never previously been involved in a suspension and 

revocation proceeding. (Transcript ("Tr.") 234). 

2. In the late afternoon, on August 12, 2000, Respondent Green was serving 

as master aboard the water taxi INDOMITABLE, which is owned by 

Harbor Boating, Inc., when the vessel collided with the water taxi 

PHOENIX in the vicinity of the Constellation Pier in Baltimore's Inner 

Harbor. (Entire Transcript). Respondent Green has worked part-time for 

5 
Harbor Boating as a master aboard its water taxis for approximately ten 

years. (Tr. 234). 

3. At all relevant times on August 12, 2000, the water in the Inner Harbor 

was calm and it was a sunny day with clear, unlimi~ed visibility. (Tr. 11, 

61). 

4. At approximately 5:00p.m. on August 12, 2000, Captain Green boarded 

the INDOMITABLE at Fells Point, relieving the first shift captain of his 

duties. (Tr. 235 ). The INDOMITABLE is a water taxi, which operates 

between various tourist attractions in Baltimore's Inner Harbor. (Tr. 145, 

158, 189, 214). 

5. At approximately, 5:15p.m., the INDOMITABLE, under the command of 

Captain Green, departed Fells Point and traveled inbound to the Inner 

Harbor, carrying approximately eighty passengers to the Baltimore 

Harbor Place Pavilion. (Tr. 14, 145, 158, 189, 214, 235). 

6. Once the INDOMITABLE reached Pier 3, which is a nearby aquarium, 

Captain Green called the pier to inform an already docked vessel to get 

underway. At this point in time, Captain Green observed another harbor 

shuttle getting underway so he placed the INDOMITABLE in neutral and 

reversed slowly to reduce the forward momentum. Once the harbor 

shuttle passed the INDOMITABLE, Captain Green proceeded on toward 

the Harbor Place Pavilion. (Tr. 236). 

6 
7. There was heavy boat congestion around the Constellation Pier. (Tr. 146-

147). 

8. As the INDOMITABLE passed the Constellation Pier, Captain Green 

observed that another vessel was leaving the dock, so he put the engine 

into neuh·al once again to decrease the speed of the INDOMITABLE and . allow the other vessel to clear the area. (Tr. 215, 224-225, 237). Although 

the engine was in neutral, the INDO MIT ABLE maintained a slight 

forward momentum. (Tr. 190, 215, 225). 

9. Since there was heavy boat traffic in the harbor, the INDOMITABLE 

proceeded slowly towards the Harbor Place Pavilion after stopping and 

starting its engines for a second time. (Tr. 218). 

10. As the INDO MIT ABLE was traversing the Inner Harbor, the harbor 

shuttle PHOENIX slowly backed out from its dock at the Harbor Place 

Pavilion, sounding the appropriate whistle signals. The PHOENIX then 

turned around and headed outbound into the Inner Harbor, increasing its 

speed to approximately 4 knots. (Tr. 26, 45). 

11. The PHOENIX is part of the Seaport Shuttle System and was carrying 

approximately sixty passengers on August 12, 2000. (Tr. 14). 

12. The acting mate on board the INDO MIT ABLE first noticed the 

PHOENIX as it backed out from its dock, but he did not continuously 

watch the vessel because he was preoccupied with collecting money from 

passengers and stamping their hands. (Tr. 190, 205-206). He did not 

7 
notice the PHOENIX again until roughly four to five seconds before the 

collision, at which point, the PHOENIX was approximately twenty-five to 

fifty feet away. (Tr. 194, 198, 207). 

13. Several passengers on board the INDOMITABLE also observed the 

PHOENIX as it left its dock, approximately seventy to eighty feet away 

from the INDO MIT ABLE. Other passengers did not notice the PHOENIX 

until it was considerably closer, roughly fifty yards away and 

approximately twenty to forty seconds before the collision. (Tr. 27, 33, 55-

56, 130-131, 153). 

14. Captain Green noticed the PHOENIX when it was approximately forty 

feet away from the Constellation Pier. (Tr. 238). 

15. As the passengers aboard the INDO MIT ABLE watched the PHOENIX 

approach head-on, they feared the vessels would collide. (Tr. 26-27, 29). 

As a matter of fact, one lady passenger brought her arm into the 

INDOMITABLE and edged closer to her husband. (Tr. 130, 141-142). 

16. As the PHOENIX continued to draw near, Captain Green thought that the 

captain of the vessel was coming over to tell him something. (Tr. 239). It 

is customary practice in Baltimore's Inner Harbor for two captains to 

bring their vessels close enough together to provide for brief conversation 

in passing. (Tr. 248). 

17. As the two water taxis continued to draw closer, Captain Green was 

unsure of the PHOENIX's course of action and he expressed concern to 

8 
the mate on board the INDOMITABLE. (Tr. 237-238, 239, 244). Although 

Captain Green felt uneasy about the situation, he did not alter the 

INDO MIT ABLE's speed until approximately one second before the 

collision, at which time, he increased the speed and turned the stern 

sharply to the left and then to the right, but the PHOENIX struck the 

INDOMITABLE on the port side. (Tr. 57, 204, 239). 

18. The collision between the INDOMITABLE and the PHOENIX occurred 

south of the Constellation dock, along the edge of the pier. (Tr. 170). 

19. Neither vessel sounded warning or danger signals prior to the collision. 

(Tr. 30, 451 57, 72, 123, 132, 204). 

20. After the accident, the PHOENIX continued on to Fells Point1 whilst the 

INDOMITABLE stopped dead in the water for a couple of minutes to 

attend to an injured female passenger, who was struck on the head by a. 

fender hanging from the INDO MIT ABLE. After tending to the injured 

female passenger, the INDO MIT ABLE headed for port. (Tr. 32, 46, 58, 

167, 243). 

21. Only two to five minutes elapsed between the time PHOENIX backed out 

of its port and collided with the INDOMITABLE. (Tr. 55-56, 130.,.131, 227). 

22. Although the INDO MIT ABLE was equipped with a radio1 which could 

only be monitored by the Harbor Boating and the Water Taxi, the vessel 

did not have a VHF radio which would allow the captain to communicate 

with other vessels. (Tr. 244). 

9 
23. The water taxis and shuttles in the harbor do not travel specific routes. 

The captains are expected to be flexible and to deviate from their course if 

necessary to avoid traffic. (Tr. 247). 

III. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. Respondent Maylon Everett Green and the s~bject matter of this hearing 

are properly within the jurisdiction of the United States Coast Guard and 

the Administrative Law Judge in accordance with 46 U.S.C. § § 6301 and 

7703 (West Supp. 2000); 46 C.F.R. Part 5 (2000); and 33 C.F.R. Part 20 

(2000). 

2. At all relevant times, respondent Green was the holder of and acted under 

the authority of his U.S. Coast Guard License No. 867686 while serving as 

master aboard the vessel INDOMITABLE (D544943) on August 12, 2000. 

3. The testimony of Captain Maylon Green that the INDOMITABLE stopped 

dead in the water as it waited for heavy boat congestion to clear around 

the Constellation Pier is not deemed credible. The testimony frmn several 

witnesses aboard both vessels involved in the casualty, who observed the 

bow wake behind the INDO MIT ABLE as it maintained a forward 

momenhnn, is considered a more accurate representation of the facts. 

4. The testimony of Gregory J. Fortman, Jr., a former employee of Harbor 

Boating who was on board the PHOENIX at the time of the accident, that 

10 
Captain Green sounded a short warning blast just prior to impact is not 

deemed credible. The testimony from several witnesses aboard both the 

INDOMITABLE and PHOENIX that neither vessel sounded warning or 

danger signals prior to the collision is considered a more accurate 

representation of the facts. 

5. The evidence in the record as a whole demonstrates that respondent 

Green, as master of the INDOMITABLE on August 12,2000, was 

responsible for the vessel's safe passage in the Im1er Harbor and he failed 

to conform to the standard of care required of a reasonably prudent 

mariner under the circumstances by failing to acknowledge the approach 

of the harbor shuttle PHOENIX sooner, assess the risk of collision, and 

initiate an evasive maneuver in a timely fashion so as to avoid the 

collision. 

6. The charge of "NEGLIGENCE" against the respondent is found 

PROVED by a preponderance of the reliable and credible evidence and 

testimony as taken from the record considered as a whole. 

7. The first offense under the charge of Negligence is PROVED by a 

preponderance of the evidence. 

8. The second offense under the charge of Negligence is PROVED by a 

preponderance of the evidence. 

9. The third offense under the charge of Negligence is PROVED by a 

preponderance of the evidence. 

11 
10. The fourth offense under the charge of Negligence is PROVED by a 

preponderance of the evidence. 

11. The fifth offense under the charge of Negligence is DISMISSED. 

IV. OPINION 

--------~~s_a_pr_eliminar_y-matter-,-and-altl'leugh-net-mentienecl-l3y-respenclent--------­

Green' s counsel, I find that the fifth offense under the charge of negligence is 

subject to dismissal because it is duplicative or identical to the first four offenses 

under the charge of negligence. More specifically, the fifth offense charges the 

respondent with failing to maintain a proper look-out, failing to properly 

evaluate the meeting situation and determine the risk of collision, and failing to 

alter course to starboard to allow a port-to-port passage with the PHOENIX, and 

thus contributing to the collision. This fifth offense merely summarizes or 

reiterates what has already been independently identified as a breach of the 

standard of care under the first four enumerated offenses. Accordingly, the fifth 

offense is dismissed. See Appeal Decision 1860 (McGarry); Appeal Decision 2358 

(Buisset). 

As to the merits of this case, the purpose of a suspension and revocation 

proceeding is to protect lives and property at sea against actual and potential 

danger. See 46 U.S.C. § 7701 (West Supp. 2000). The purpose is not to assess 

12 
blame for marine casualties. See Appeal Decision 1755 (Ryan). In these 

proceedings, a Coast Guard issued license or document is subject to suspension 

or revocation if the holder is found to have committed an act of negligence in 

performing his duties relating to the vessel. See 46 U.S.C. § 7703(1)(B) and 46 

C.P.R.§ 5.569. The burden of proof is on the Coast Guard to establish a prima 

facie case of negligence by a preponderance of the evidence. See 5 U.S.C. § 

556(d); 33 C.P.R.§§ 20.701-20.702 (2000); see also Appeal Decision 2485 (Yates). 

Negligence is defined in 46 C.P.R.§ 5.29 as "the commission of an act 

which a reasonable and prudent person of the same station, under the same 

circumstances, would not commit, or the failure to perform an act which a 

reasonable and prudent person of the same station, under the same 

circumstances, would not fail to perform." The inquiry is limited to whether the 

respondent acted negligently, and it does not matter whether the negligence 

leads to a collision. See Appeal Decision 2277 (Banashak); see also Appeal 

Decision 2492 (Rath); and Appeal Decision 2380 (Hall). The collision is merely an 

event that prompts the investigation into the respondent's actions. See 

(Banashak), supra. Therefore, a mariner is negligent if he failed to take the 

precautions a reasonably prudent mariner would take in the same circumstances, 

regardless of whether or not his conduct or failure to act was the proximate or a 

contributing cause of the casualty. See Appeal Decision 1755 (Ryan). 

In addition, contributory negligence is not a defense in these proceedings, 

and the possible fault or negligence of another person or vessel in no way 

13 
mitigates the respondent's 11egligence or contribution to the collision. See 

Appeal Decision 2031 (Cannon); see also (Rath); (Hall) supra. Although the 

causal connection is necessary to establish liability for negligence in a civil 

proceeding for damages, it is not an element of negligence for the purposes of a 

suspension and revocation action. See Appeal Decision 2358 (Buisset); see also 

Appeal Decision 2438 (Turner). The alleged fault of the PHOENIX's captain 

relating to the marine casualty will not serve to excuse any negligence on the part 

of respondent Green in this hearing. 

Moreover, in a suspension and revocation proceeding, a violation of a 

navigation rule is, of itself, negligence. See Appeal Decision 2386 (Louviere); see 

also (Buisset) supra. Pursuant to 46 C.F.R. § 5.33, a violation of law is defined as 

any failure to comply with a regulation prescribed under 46 U.S.C. subtitle II or 

any other law or regulation intended to promote marine safety or protect 

navigable waters. 

Here, the Coast Guard has established that the respondent acted 

negligently by breaching the Inland Navigation Rules on August 12, 2000, 

thereby failing to avoid a collision with an approaching power-driven vessel. 

More specifically, respondent Green is negligent because he failed to initiate the 

following required safety procedures required when two vessels meet in a headon situation. The violations, which will be addressed in further detail, include: 

I) Failing to maintain a proper lookout; 

II) Improperly assessing the risk of collision; and 

14 
III) Failing to avoid a head-on collision and initiate evasive maneuvers 

in ample time. 

The respondenf s violation of the Inland Navigation Rules contributed to the 

collision with the harbor shuttle PHOENIX, seriously injured one passenger, and 

jeopardized the safety of all other passengers aboard both vessels. 

I. Captain Green Failed to Maintain a Proper Lookout While Underway · 

The respondent contends that the Coast Guard presented no evidence to 

establish that Captain Green failed to maintain a proper lookout. In support of 

this contention, the respondent argues that there were two mates aboard the 

INDOMITABLE at the time of the incident and that, as captain of the vessel, he 

could not be the lookout within the meaning of maritime law. 

The respondent is grossly mistaken in his assessment of the navigational 

rule requiring that a proper lookout be maintained. The applicable statute, Rule 

5 of the Inland Navigation Rules, 33 U.S.C. § 2005, provides: 

Every vessel underway must at all times maintain a 

proper lookout by sight and hearing as well as 

prevailing circumstances and conditions so as to 

make a full appraisal of the situation and of the risk of 

collision. 

Senate Report 96-979, which accompanies the Inland Navigation Rules, 

expresses Congressional intent concerning lookouts: 

15 
On vessels where there is an unobstructed all-round 

view provided at the steering station, as on certain 

pleasure craft, fishing boasts, and towing vessels, or 

where there is no impairment of night vision or other 

impediment to keeping a proper lookout the water 

officer or helmsman may safely serve as the lookout. 

However, it is expected that this practice will only be 

followed after the situation has been carefully 

assessed on each occasion, and it has been clearly 

establish that it is prudent to do so. Full account shall 

be taken of all relevant factors, including but not 

limited to the state of the weather, conditions of 

visibility, traffic density, and proximity_-o--=f~-------------­

navigational hazards. It is not the intent of these rules 

to require additional personnel forward, if none is 

required to enhance safety. 

SeeS. Rep. No. 979, 96th Cong., 2d Sess. 7-8 (1980). 

It is well-established law that the term "maintain" means "to see to it that 

a proper lookout is on duty/' and under certain conditions, an operator of a 

vessel may also act as lookout. See Appeal Decision 2421 (Rader); see also 

Appeal Decision 2420 (Lentz). However, the adequacy of a lookout on board a 

vessel is a question of fact to be resolved under all existing facts and 

circumstances. See Appeal Decision 2390 (Purser); see also Appeal Decision 2482 

(Watson); (Radar). Therefore, each situation must be considered independently. 

In the case at hand, the evidence presented as a whole indicates that a 

proper lookout was not maintained under the circumstances. First, Mr. Blaine 

Driscoll, who was acting mate on board the INDOMITABLE at the time of the 

incident, testified that he was not keeping continuous watch, as he was 

preoccupied with collecting money from passengers and stamping their hands. 

16 
(Tr. 190, 206). Second1 the record is devoid of any evidence that a lookout duty 

was assigned to any crewmember aboard the INDOMITABLE. Clearly/ Captain 

Green was responsible for navigating the vessel while maintaining a proper 

lookout. Yet, the fact that Captain Green did not see the PHOENIX approaching 

in time to properly assess the oncoming danger and avoid the collision remains 

unexplained. It was a calm1 sunny day with clear1 unlimited visibility. (Tr. 111 

61). There appears to have been no difficulty in seeing the approaching vessel, as ------

several passengers aboard the INDOMITABLE observed the PHOENIX up to 

eighty (80) feet away and watched for approximately five minutes as it steadily 

drew closer. (Tr. 55-561 130-131). Some witnesses/ including the acting mate/ 

even noticed the PHOENIX for the first time as it left its dock1 backed out1 and 

turned around into the harbor. (Tr. 130-1311 205). Moreover1 despite the boat 

traffic around the Inner Harbor1 Captain Green was able to observe other vessels 

getting underway. (Tr. 236). In fact, Captain Green testified that it was just past 

the Constellation Pier when he noticed the PHOENIX approaching at an angle. 

(Tr. 237). 

When a mariner fails to see a vessel1 which proper watchfulness would 

have disclosed/ the unexplained fact that the vessel was not conspicuously seen 

is conclusive evidence of a defective lookout. SeeThe New York/ 175 U.S. 187, 

204 (1899). Since no reason is given why the approaching vessel was not noticed 

in time to avoid the collision/ Captain Green's inability to see the PHOENIX is 

inexplicable/ except upon the theory that no sufficient lookout was maintained. 

17 
( 

See The New York, 175 U.S. at 204. Thus, respondent Green is found to have 

violated 33 U.S.C. § 2005 (Rule 5 of the Inland Navigation Rule) by failing to 

maintain a proper look-out and the first offense under the charge of negligence is 

found proved by a preponderance of the reliable and credible evidence. 

II. Respondent Improperly Assessed the Risk of Collision Under the 

-----------Eircumstarrces 

The respondent contends that, based on nineteenth century case law, a 

vessel better able to control her movements should give way to the other vessel, 

and that a vessel lying still in water is under no duty to an approaching vessel 

other than to remain in position. See Philadelphia & R.R. Co. v. Adams, 89 Pa 31 

(1879); see also, The Iohn D. Dailey, 260 F. 241 (D.C. N.Y. 1919). The respondent 

alleges that, in this case, the PHOENIX was underway while the INDOMITABLE 

remained stationary in the water, and, therefore, the PHOENIX was solelY' 

responsible for giving way to the INDO MIT ABLE. 

Respondent's use of antiquated case law that deals specifically with vessels 

within the protection of the Steering and Sailing Rules is neither applicable nor 

persuasive. The issue in Philadelphia & R.R. Co. was whether the admiralty rule 

requiring a steamer to keep out of the way of a sailing vessel applies to a 

rowboat. The Supreme Court of Pennsylvania found that there was no occasion 

18 
for a steamer to avoid a rowboat, whose course can readily be changed. See 

Philadelphia & R.R. Co. v. Adams, 89 Pa 31. In the case at hand, a collision 

occurred between two power-driven vessels. It has been found as fact that both 

vessels were underway in inland waters. (Findings of Fact Nos. 8 and 10; Ultimate 

Findings of Fact, No.3). As such, the Inland Navigation Rules, which were 

enacted on December 24, 19801 to regulate modern navigational issues, apply. 

Specifically, Rule 7 of the of the Inland Navigation Rules, 33 U.S.C. § 2007, 

provides: 

Every vessel shall use all available means appropriate 

to the prevailing circumstances and conditions to 

determine if risk of collision exists. If there is any 

doubt such risk shall be deemed to exist. 

A "vessel" includes every description of watercraft that is used or is 

capable of being used as a means of transportation on water. See Rule 3(a) of the 

Inland Navigation Rules, 33 U.S.C. § 2003. Therefore, both the INDOMITABLE 

and the PHOENIX, which operate as water taxis in Baltimore's Inner Harbor, are 

governed by these navigation regulations, regardless of their specific design or 

model. 

Moreover, respondent is incorrect in his assertion that because the 

INDO MIT ABLE was stationary or moving dead slow in the water it was not 

underway, and, therefore, had no duty to the approaching vessel other than to 

remain in position. Rule 3(h) of the Inland Navigation Rule defines "underway" 

1 The Inland Navigation Rules became effective for all inland waters except the Great Lakes on 

December 24,1981. 

19 
as any vessel that is not anchored, made fast to the shore, or aground. See Id. 

Passengers aboard both the INDO MIT ABLE and PHOENIX testified at the 

hearing that the bow wake behind the INDO MIT ABLE was observed as it 

maintained a forward momentum. (Tr. 190, 215, 225). Although, Captain Green 

may have placed the vessel's engine into neutral while he waited for the heavy 

boat congestion to clear the area, the INDO MIT ABLE continued to move in the 

water. (Tr. 190, 215, 2252. Given, the INDOMLTABLE_was~under-way~-at-tl'lB--------­

time of the collision. 

Because the PHOENIX was a power-driven vessel underway in inland 

waters at the time of the incident, Captain Green had a duty to properly assess 

the risk of collision between the PHOENIX and the INDOMITABLE. A belief 

that the captain of the other vessel was approaching closer than normal in an 

effort to communicate with the respondent, will not excuse the respondent's 

failure to initiate appropriate safety precautions. Although it is not unusual for 

two captains navigating within Baltimore's Inner Harbor to bring their vessels 

close together to allow a brief conversation in passing, custom and usage do not 

serve as an adequate defense to a charge of negligence in this case. See Appeal 

Decision 2581 (Driggers)._ Caution in evaluating the risk of collision between two 

vessels approaching head-on is so imperative that any disregard, by custom and 

usage ot a trade, will not meet the necessary standards of care. See Appeal 

Decision 2261 (Savoie); see also Appeal Decision 2416 (Moore). Respondent as 

20 
f 

captain of the vessel had the duty to insure compliance with the Inland 

Navigation Rules and his failure to do so was properly chargeable negligence. 

Moreover, the undersigned is not convinced that Captain Green's failure to 

properly evaluate the meeting situation betWeen the approaching vessels was 

based on his belief that the captain of the PHOENIX wished to communicate. 

Although this belief may have been included among Captain Green's thoughts as 

he watched the PHOENIX steadiJy aRRroach, additional concerns included th_.,_...e.____ 

fear that the vessels would collide. Respondent testified at the hearing that he 

was unsure of the PHOENIX's course of action and expressed his concerns to the 

acting mate. (Tr. 237-238, 239). Clearly, there was doubt in Captain Green's 

mind as to whether the risk of collision existed. As such, respondent was 

obligated to assume that the risk of collision did exist and that he should act 

accordingly. See 33 U.S.C. § 2007. 

In light of his confusion, prudent action by Captain Green would have 

included, at a minimum, sounding five short and rapid blasts on the whistle. 

Specifically, Rule 34(d) of the Inland Navigation Rules, 33 U.S.C. § 2034 provides: 

When vessels in sight of one another are approaching 

each other and from any cause either vessel fails to 

understand the intentions or actions of the other, or is 

in doubt whether sufficient action is being taken by 

the other to avoid collision, the vessel in doubt shall 

immediately indicate such doubt by giving at least 

five short and rapid blasts on the whistle. This signal 

may be supplemented by a light signal of at least five 

short and rapid blasts. 

21 
In this case, Captain Green failed to make the required whistle sounds to 

signal an approach, agreement, passage, or danger. (Tr. 109). None of the 

passengers aboard the INDO MIT ABLE or the PHOENIX who testified at the 

hearing heard either vessel sound any signals as the two vessels approached 

each other. (Tr. 30, 45, 57, 72, 123, 132, 204). According to the testimony of a 

. former employee of Harbor Boating who was on board the PHOENIX at the time 

of the accident, Captain Gr_een_s_a_unded_a_shorLwarning-blast-just-prior-to--------------

impact. (Tr. 226). Even if that were true, a single blast moments before a 

collision does not comply with the required navigational procedure or standard 

care required of a prudent mariner. As such, the evidence viewed as a whole 

indicates that respondent violated 33 U.S. C. § 2007 (Rule 7 of the Inland 

Navigation Rule) by failing to properly ascertain the risk of collision and failed to 

sound the required danger signals when faced with the uncertainty of a collision. 

Thus, the second ·offense under the charge of negligence is found proved. 

III. Captain Green Failed to Initiate Evasive Maneuvers in Ample Time 

To Avoid a Head-On Collision 

The respondent argues that the time period in which it becomes necessary 

to begin precautionary measures to prevent a disaster cannot be precisely 

defined and must always depend on the circumstances surrounding the 

22 
occasion. In this case, the respondent alleges that he was paying attention to the 

surroundings and when it became apparent that the approaching vessel was not 

going to alter course or speed, he took immediate evasive action. He states that 

due to the INDOMITABLE's stationary position against the pier, he was unable 

to avoid the collision. Captain Green further contends that he was entitled to 

presume the approaching vessel would act lawfully and pursue the customary 

1 . . . 'd d ___________ cnurs_e_regu atmg_Its_actlons_so_as_to-a:v:m - anger..-------------------------

The undersigned is not convinced that action taken by the respondent was 

made in ample time to assess the situation and avoid a collision. The evidence 

viewed as a whole indicates that Captain Green noticed the approaching vessel 

in time to initiate evasive action, but chose to remain stationary until the last 

second; thereby contributing to the collision. Captain Green testified that he 

noticed the PHOENIX sliding down towards the left at an angle, but did not 

know which direction to turn because the INDOMITABLE was approximately 

forty feet away from the Constellation Pier. (Tr. 238). Captain Green felt that he 

could not turn the vessel to the right due to the close proximity of the pier; 

however, he knew that if the INDO MIT ABLE remained stationary, it would 

collide with the approaching vessel. (Tr. 238). Captain Green also testified that 

he was unsure of the PHOENIX'S course of action and his anxiety increased as 

he watched the PHOENIX steadily approach. (Tr: 237-238, 239). As a matter of 

fact, respondent Green voiced his concern about the unknown intentions of the 

captain of the PHOENIX when he exclaimed to the acting mate, "Look at this 

23 
I 

guy. What the .... is he doing?" (Tr. 237). In addition, passengers aboard the 

INDOMITABLE observed the PHOENIX's head-on approach and shared 

Captain Green's concern up to five minutes before the collision. Within that time 

frame, one passenger reacted by bringing her arm into the INDOMITABLE and 

edging closer to her husband. (Tr. 130). Captain Green's apprehension should 

have sparked a similar reaction that, made in ample time, would have avoided 

----thg_ GGUision-. ---

Timely action to avoid a collision are specified in Rule 8 of the Inland 

Navigation Rules, 33 U.S.C. § 2008, which provides in pertinent part: 

(a) Any action taken to avoid collision, shall, if the 

circumstances of the case admit, be positive, made in 

ample time and with due regard to the observance of 

good seamanship. 

(b) Any alteration of course or speed to avoid 

collision shall, if the circumstances of the case admit, 

be large enough o be readily apparent to another 

vessel observing visually or by radar; a succession of 

small alterations of course or speed should be 

avoided. 

(c) If there is sufficient sea room, alteration of 

course alone may be the most effective action to avoid 

a close-quarters situation provided that it is made in 

good time, is substantial and does not result in 

another close-quarters situation. 

(d) Action taken to avoid collision with another 

vessel shall be such as to result in passing as a safe 

distance. The effectiveness of the action shall be 

carefully checked until the other vessel is finally past 

and clear. 

Passing at a safe distance ideally should remove all risk of collision. The 

risk to be eliminated includes the possibility that two vessels could safely pass in 

24 
close proximity to one another even if an emergency occurred in either vessel. 

See CAPT. RICHARD SMITH, FARWELL'S RULES OF THE NAUTICAL ROAD, at 81 (7th ed. 

1994). Thus, the passing distance must be sufficient to allow recovery time from 

a casualty or detect and react to unexpected dangers. See. CAPT. RICHARD SMITH, 

FARWELL'S RULES.OF THE NAUTICAL ROAD, at 81. In this case, Captain Green failed 

to initiate evasive action in ample time to pass at a safe distance, the small 

alteration of speed was insufficient, and his decision to turn the stern sharr!Y to _______ _ 

the right resulted in another close-quarter situation. 

Although the respondent asserts that the INDOMITABLE's stationary 

position in close proximity to the Constellation Pier prevented him from acting 

sooner, there were no special circumstances warranting any departure fro1n the 

Inland Navigation Rules necessary in order to avoid immediate danger. A 

departure from the usual rules of navigation due to special circumstances does 

not apply to vessels in an ordinary head-on situation that sight each other at an 

ample distance to comply with the applicable rules. See Appeal Decision 1353 

(Smith). In this case, the situation was not one in extremis; the INDOMITABLE 

was not hindered in her ability to apply the navigation rules, nor was there a 

proposed departure from the usual rules agreed to by the other vessel. 

Therefore, an exception under the rule of special circumstances does not apply 

here because there was no reason why the proper application of the meeting 

rules would have resulted in any danger. See (Smith). 

25 
In addition to commencing evasive measures upon recognizing a head-on 

situation with the PHOENIX, the respondent was required to alter course to 

starboard and safely pass on the port side of the approaching vessel. Unless 

otherwise agreed, when two power-driven vessels meet on reciprocal courses so 

as to involve the risk of collision, each shall alter course to starboard and pass on 

the port side of the other. See Rule 14 of the Inland Navigation Rules, 33 U.S.C. § 

,_ __ _ __ 2014,_A_passing_agreement_binds_eachoperator_to_sp_ecific_actions_that_W_i1Lre_g_ul_t _______ _ 

in the vessels passing each other safely. Each operator, in turn, relies on the 

agreement and has a duty to conform his actions accordingly. See Appeal 

Decision 2479 (Branch). A prior agreement is not negated by a change of course 

by one operator because the remaining operator still has a duty to abide by the 

agreement. See (Branch). Because the obligation to alter course was mutual in its 

application, the respondent will not be absolved from negligent operation and 

navigation of a vessel by claiming he was waiting for the other vessel to change 

course first. Since respondent failed to alter course and pass on the port side 

even though the INDO MIT ABLE and the PHOENIX were on reciprocal courses 

and he did not take evasive action in ample time so as to avoid a collision, he 

violated 33 U.S.C. § § 2014 (Rule 14 of the Inland Navigation Rule) and 2008 

(Rule 8 of the Inland Navigation Rule). Thus, offenses three and four, 

respectively under the charge of negligence are found proved. 

26 
\ 

V. CONCLUSION 

The preponderance of evidence in the record supports a finding that the 

respondent acted negligently with respect to the navigation of the 

INDOMITABLE. Specifically, respondent failed to comply with the Inland 

Navigation Rules requiring him, as operator of a vessel, to maintain a proper 

lookout, to properly assess the meeting situation and determine the risk o_f __ _ 

collision, and to alter course to starboard and allow a port to port passage with 

an approaching vessel. In doing so, respondent negligently contributed to the 

collision between the water taxis the INDO MIT ABLE and the PHOENIX, which 

resulted in serious injury to one passenger and the endangerment of all other 

passengers aboard both vessels. 

It is well within the power of the undersigned to order any of a variety of 

sanctions, including suspension. See 46 C.P.R. § 5.569; see also Appeal Decision 

2569 (Taylor). The Table of Suggested Range of an Appropriate Order codified 

i~ 46 C.P.R.§ 5.569(d) recommends an order of 2 to 6 months suspension for 

negligence related to vessel navigation. In this case, the U.S. Coast Guard has 

proposed that the respondent receive a six (6) month outright suspension. The 

undersigned, however, is not bound by the Table of an Appropriate Order. See, 

(Taylor). The Table of an Appropriate Order merely serves as guidance to an 

ALJ, and consideration of mitigating or aggravating factors may justify a lower 

27 
or higher order than the range suggested in the appropriate order table. 46 

C.P.R. § 5.569(d). 

In light of all the circumstances and facts surrounding this case, a more 

appropriate sanction is deemed to be a two (2) month outright suspension. 

Captain Green is held in high regard among his peers in terms of reputation, 

background, and experience. He appears to be a highly responsible person who 

____ was Of>erating_Cl_~ater ta~i i[l_C1 very_busx: hm:bor-----=-a_difficult_and demanding __________ · _ 

occupation. Moreover, this case does not involve a respondent who has a prior 

record of violations. This case involves an unfortunate, isolated incident 

wherein the respondent acted in a negligent manner that the undersigned feels 

will not again be repeated. Consequently, the minimal suspension period set 

forth in the Table of Orders is the appropriate sanction. WHEREFORE, 

V. ORDER 

IT IS ORDERED that the charge of Negligence against Maylon E. Green 

and the supporting offenses thereunder are PROVED, and it is further, 

ORDERED that the Merchant Mariner's License, No 86786, issued to the 

respondent is hereby SUSPENDED for a period of two (2) months to begin upon 

surrender. Respondent is ordered to immediately surrender his Merchant 

28 
Mariner's License to the Investigating Officers at Activities Baltimore, Maryland. 

It is hereby further, 

ORDERED that the service of this Decision on the respondent's counsel will serve 

as notice to the respondent of his right to appeal, the procedure for which is set forth in 

Dated this 27th day of August, 2001 

Baltimore, MD 

Copy: 

6sEP . INGOLIA . 

·Chief d inistrative Law Judge 

/y'.s. C dst Guard \ •,.) 

Activities Baltimore, Attn: Investigations Department 

James P. Gillence, Jr., Esq., Counsel for Respondent 

Eric B. London, Esq., Counsel for Respondent 

29