U.S. panel, Coast Guard still split on water taxi tragedy's lessons

Transportation safety agency, Coast Guard disagree on lessons of water taxi tragedy 5 years ago today

Published online: Mar 11, 2009 News Michael Dresser
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Five years after the water taxi Lady D flipped over in Baltimore Harbor, killing five passengers, two federal agencies remain divided over the cause of the tragedy and the lessons to be learned from it.

The National Transportation Safety Board, after its investigation, made recommendations to the Coast Guard on steps to be taken to prevent future small-craft accidents. But the Coast Guard has staked out a contrary position on several points as it struggles to rewrite its safety rules in the aftermath of a calamity that shook the maritime agency to its core.

Among the issues in dispute: Under what weather conditions should the Coast Guard tell such craft to stay off the water? How should government ensure that passenger craft don't carry too much weight? How should pontoon boats like the Lady D be tested for stability?

The two agencies continue to wrangle over such matters three years after the NTSB issued its report on the March 6, 2004, accident. The Lady D - carrying a full-capacity load of 25 people - flipped over in the frigid waters of the harbor when hit by a squall on its run between
Fort McHenry and Fells Point.

The NTSB report put particular emphasis on the issue of loading - faulting the Coast Guard for setting maximum passenger capacities for small watercraft based on outdated statistics reflecting the average weight of Americans decades ago.

The board also found errors in the Coast Guard's stability testing, including a decision to allow tests on a similar but not identical "sister" craft to be used in setting passenger limits for the Lady D.

The Coast Guard has rejected some of the NTSB's key findings about the causes of the capsizing. In April 2007, for instance, Coast Guard Rear Adm. Brian M. Salerno rejected the board's criticism of the stability testing. Instead, he pointed a finger directly at the pontoon boat's captain, Francis Deppner, saying, "The capsizing occurred primarily because the Lady D's master exposed the vessel to severe wind and waves."

Salerno said Deppner, then 74, improperly decided to leave Fort McHenry in spite of "obvious indications" of severe weather.

According to the Coast Guard, Deppner voluntarily surrendered his license two years ago.

Despite Salerno's contentions, the Coast Guard has yet to issue its report on the accident - five years after it happened and long after the agency's investigation was complete. Cmdr. Brian Penoyer, chief of prevention for the Coast Guard's Baltimore sector, said the report remains under internal review.

Penoyer said the Coast Guard has not been waiting for a final investigation report to begin taking action. He said the agency implemented a new, voluntary loading standard for pontoon boats based on a higher average weight per passenger of 185 pounds. A proposed mandatory standard is still hung up in a lengthy rule-making process.

(To some extent, the issue of regulations for commercial pontoon boats is moot for Baltimore because they are no longer used here. The water taxis that now operate in Baltimore Harbor are more conventional, single-hull boats, according to the Coast Guard.)

Penoyer said the Coast Guard also has tightened its rules on the use of "sister ships" to set passenger limits. "All measures of stability on small vessels have been re-examined to see we haven't missed anything," he said.

But serious differences remain on several issues, according to the continuing correspondence between the Coast Guard and the NTSB over proposed regulations.

One of the sharpest disputes has arisen over the weather issue. The NTSB has expressed dismay at the Coast Guard's reluctance to spell out the wind and wave conditions in which small craft should not operate.

"The safety board is particularly disappointed that the proposed regulation would continue to rely on the undefined phrase 'reasonable operating conditions' on a pontoon boat's certificate of inspection rather than providing definitive operational guidance to the vessel's operator," the NTSB wrote in November. That standard, the NTSB said, "did not constitute adequate practical guidance to the master of the Lady D."

The Coast Guard has so far rejected the call for the level of specificity the NTSB is seeking, warning against a "one-size-fits all approach."

Differences also continue regarding the issue of ensuring vessel stability. The NTSB and Coast Guard have clashed over the proper procedures for determining the stability of pontoon boats.

Seven months after the Lady D's capsizing, the Coast Guard issued new guidelines for calculating a pontoon craft's ability to resist tipping in strong winds or with weight shifts onboard. In response, the NTSB accused the Coast Guard of changing its testing formula in a way that would "reduce the safety margins" for pontoon boats by allowing them to carry more passengers than the board believes is safe.

Last month, the Coast Guard delivered noncommittal responses to the NTSB on its recommendations, saying merely that it would "evaluate the next regulatory action to be taken."

Penoyer said the seeming tension between the agencies reflects their different perspectives and missions. The NTSB's job is to investigate mishaps and be an advocate for safety measures, while the Coast Guard is also the regulatory agency overseeing marine transportation.

"It's important to know that there's a very healthy and productive relationship between the NTSB and the Coast Guard," Penoyer said.

Meanwhile, the NTSB's handling of the Lady D case has its own critics.

Bob Ford, a former NTSB marine safety investigator who left the agency about three years ago, said in an interview with The Baltimore Sun this week that the investigation was handled in a "slipshod manner."

"It was just very weak. They just did not handle other issues that should have been handled," he said. Among the issues that deserved further attention, Ford said, were the "human factors" driving the crew's decision to cast off from Fort McHenry amid signs of a storm and the captain's seamanship at the time the squall hit the Lady D.

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