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Recent cases hold clues for determining liability in Conception fire

Dec 2, 2019 12:11 PM
Salvors raise Stretch Duck 7 from Table Rock Lake near Branson, Mo., on July 23, 2018. The vessel sank four days earlier during a storm, killing 16 passengers and one crewmember. The captain has been charged with 17 counts of seaman’s manslaughter.

NTSB photo

Salvors raise Stretch Duck 7 from Table Rock Lake near Branson, Mo., on July 23, 2018. The vessel sank four days earlier during a storm, killing 16 passengers and one crewmember. The captain has been charged with 17 counts of seaman’s manslaughter.

The Conception dive boat fire on Sept. 2 that resulted in the deaths of all 33 passengers and one crewmember could expose the vessel’s captain — and the corporate officials whose actions or inactions contributed to the deaths — to serious criminal liability under the Seaman’s Manslaughter Statute.

According to a preliminary report by the National Transportation Safety Board (NTSB), the vessel was anchored in Platts Harbor off Santa Cruz Island, Calif., on the last day of a three-day diving trip to the Channel Islands when the fire broke out at 0314. At the time, five crewmembers were asleep in berths behind the wheelhouse on the three-decked vessel’s upper “sun deck” level, while the passengers and the crewmember who died were asleep in the lower-level berthing area. Between these two levels was the main deck, which housed a galley and salon. Communication between the lower berthing area and the salon was by means of a half-circle ladderwell in the starboard forward end of the vessel. The only other means of egress from the lower berthing area was via an escape hatch at the after end of the compartment, which also opened to the salon.

According to the NTSB report, a crewmember sleeping in the wheelhouse berths was awakened by a noise and got up to investigate. He saw a fire at the aft end of the sun deck rising from the salon compartment below. The crewmember alerted the other crew behind the wheelhouse and as they awoke, the captain radioed a distress message to the Coast Guard. The crewmembers attempted to access the salon and passengers below. Unable to use the aft ladder, which was on fire, the crewmembers jumped down to the main deck (one crewmember broke his leg in the process) and tried to access the salon and galley compartment through a forward window. Unable to open the window and overwhelmed by smoke, the crew jumped overboard.

Two crewmembers and the captain swam to the stern and reboarded the vessel. Access to the salon through the aft doors was blocked by fire, so they launched a small skiff and picked up the remaining two crewmembers in the water. They transferred to a recreational vessel anchored nearby, where the captain continued to radio for help. Two crewmembers returned to Conception to search for survivors around the burning hull.

The NTSB’s finding that all six crewmembers were asleep is ominous. In other words, no crewmember was serving as a roving patrol, despite a requirement in both Coast Guard regulations and the vessel’s certificate of inspection (COI) that one be designated and serving in that capacity. All small passenger vessels like Conception that are regulated under Subchapter T are subject to the requirement that “(the) owner, charterer, master or managing operator of a vessel carrying overnight passengers shall have a suitable number of watchmen patrol throughout the vessel during the nighttime, whether or not the vessel is underway, to guard against and give alarm in case of a fire.” The requirement in the COI states that “(a) member of the vessel’s crew shall be designated by the master as a roving patrol at all times, whether or not the vessel is underway, when the passengers’ bunks are occupied.”

This failure potentially subjects the captain, crew and all members of the operating company’s hierarchy to criminal liability under 18 U.S. Code 1115 (“Misconduct or neglect of ship officers”), commonly referred to as the Seaman’s Manslaughter Statute. That statute provides as follows:

“Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector or other public officer, through whose fraud, neglect, connivance, misconduct or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than 10 years, or both.

“When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct or violation of law, by which the life of any person is destroyed, shall be fined under this title or imprisoned not more than 10 years, or both.”

As can be seen, the essence of a seaman’s manslaughter prosecution is a maritime-related death that is the product of, among other things, negligence. Through case law interpreting this statute, whose provenance extends back to the first half of the 19th century, we know that it applies only to commercial operations; that ordinary negligence (failure to exercise the degree of care required of a reasonably prudent mariner) will suffice for a conviction; and that the negligent act must have had some causal relationship to the fatality. Due to the unique responsibility or fiduciary duty owed by those who are culpable to those who are killed, the penalty for this felony offense is stiff: up to 10 years in prison and a $250,000 fine for each count.

Recent federal seaman’s manslaughter prosecutions are instructive in suggesting who might face prosecution in the Conception case, the theories of prosecution, and the sentences that might result.

In February, Christopher Hutchinson, the captain of a lobster boat that capsized off the coast of Maine in a predicted storm, killing two crewmembers, was sentenced to four years in prison and three years of supervised release in U.S. District Court in Portland, Maine. Hutchinson smoked marijuana and drank alcohol before getting the vessel underway, and ingested oxycodone while at sea. Neither of the crewmembers, whose bodies were never found, was wearing personal flotation devices or survival suits. In pronouncing the sentence, the judge noted that Hutchinson was the captain of the boat and was responsible for the safety of his crew, but rather than living up to his responsibility, he engaged in risky, reckless behavior that cost the lives of two young men.

Also instructive are the indictments handed down in the summer of 2019 in relation to the sinking of the duck boat Stretch Duck 7 on July 19, 2018, in a severe thunderstorm on Table Rock Lake, Mo., which caused the deaths of 16 passengers and a company employee. The captain, Kenneth McKee, has been charged with 17 seaman’s manslaughter counts for, among other things, allegedly failing to properly assess incoming weather prior to entering the vessel on the water, failing to direct the passengers to don life vests, and failing to prepare to abandon ship when there was an unacceptable loss of freeboard on the vessel.

Interestingly, the operations director and manager on duty at the time of the accident, Charles Baltzell, who was not aboard Stretch Duck 7, was added to each of these 17 felony counts as an aider and abettor of misconduct and neglect by a vessel captain. Baltzell allegedly contributed to the deaths by directing the captain to enter the vessel on the water when there was severe weather and lightning in the area, and by failing to communicate to the captain the nature of the severe weather prior to its arrival. In addition, the operating company’s general manager, Curtis Lanham, faces 17 felony counts under 18 U.S. Code 1115 for alleged executive deficiencies that include neglecting to establish and enforce policies and procedures related to the monitoring of weather in association with the management and operation of daily duck boat tours; creating a work atmosphere on Stretch Duck 7 and other duck boats where the concern for profit overshadowed the concern for safety; and failing to adequately supervise the management, operation and conduct of the tour of Stretch Duck 7 on the day of the accident.

The upshot of this recent activity as it relates to the Conception crew and company employees is several-fold. First off, it illustrates that this is an active area of the law, capturing the full attention of federal prosecutors in cases involving maritime deaths. Secondly, penalties can be, and have been, quite severe; those found to have negligently contributed to 34 deaths in this case face up to 340 years in prison and an $8.5 million fine. And lastly, beyond the obvious lead culprit — the captain who allegedly failed to ensure there was a roving patrol at the time of the casualty — it’s a sure bet that prosecutors will minutely scrutinize the circumstances that led to the fire raging undetected long enough for both escape routes to be rendered unusable. The goal will be to discover whether anyone in the corporate hierarchy “knowingly and willfully caused or allowed … fraud, neglect, connivance, misconduct or violation of law, by which the life of any person (was) destroyed.” If such complicity is discovered, it is virtually certain that the implicated individuals also will be facing 34 seaman’s manslaughter counts.

Andrew Norris, a retired Coast Guard captain, is a maritime legal and regulatory consultant and president of Tradewind Maritime Services Inc. He can be reached by email at anorris@tradewindmaritimeservices.com or by phone at (401) 871-7482.

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