A Los Angeles federal judge on Friday dismissed an indictment charging a dive boat captain with manslaughter in the deaths of 34 people in a 2019 fire aboard a vessel anchored off the South Coast from California.
The decision came on the third anniversary of one of the deadliest maritime disasters in recent US history, when the Conception caught fire on September 2, 2019, near an island off the coast of Santa Barbara. All 33 passengers and one crew member who were trapped in a bunk room below deck died.
Capt. Jerry Boylan, 68, failed to follow safety rules, federal prosecutors said. He was charged with ‘misconduct, negligence and inattention’ in failing to train his crew, carry out fire drills and have a roving night watchman on the boat when the fire broke out. declared.
But the indictment did not say Boylan acted with gross negligence, which U.S. District Judge George Wu said was a required element to prove the crime of manslaughter of a sailor. and must be listed in the indictment.
Family members of seven of the victims said in a statement they were stunned by the decision. They criticized Wu’s interpretation of the law.
“This is an outrageous miscarriage of justice and a hell of a slap in the face on the third anniversary of this disaster,” they wrote. “The captain accepted the responsibility of ‘duty of care’ when he received his Merchant Seaman title. He breached this duty and was then the first to abandon ship.
Prosecutors will seek Justice Department approval to appeal the decision, said Thom Mrozek, spokesman for the U.S. Attorney’s Office in Los Angeles. They can also request a new indictment alleging gross negligence.
Boylan’s attorneys at the Federal Public Defender’s Office did not immediately respond to a request for comment.
The judge canceled an October 4 trial date.
Boylan and four other crew members, who slept on an upper deck and escaped from the burning boat, said the fire prevented them from trying to reach those trapped below deck. The flames blocked a stairwell and a small hatch that were the only exits below deck, officials said. All 34 died from smoke inhalation.
The decision is the second recent blow to prosecutors in this case.
Boylan was initially charged with 34 counts of sailor manslaughter, each of which could face up to 10 years in prison if convicted. Defense attorneys sought to dismiss those charges because they argued the deaths were the result of a single incident and not separate crimes.
Before that issue could be argued in court, prosecutors obtained a superseding indictment in July charging Boylan with a single count of sailor manslaughter alleging his negligence caused the 34 deaths. If convicted, he would have faced a maximum of 10 years in prison.
The defense also argued that the single-count indictment should be dismissed because it did not allege Boylan acted with gross negligence, which they argued was a required element of the crime.
Federal prosecutors countered that under the pre-Civil War statute, designed to hold steamship captains and crew responsible for maritime disasters, they only had to show that Boylan acted with a mere negligence, a single standard for a crime.
Prosecutors cited wording in the law that says captains and other boat employees can face up to 10 years in prison for “misconduct, negligence or disregard of duty on such (a) vessel (that) the life of every person is destroyed.”
Wu said case law on the negligence standard was inconsistent in appellate courts. Only a New Orleans appeals court had upheld the requirement that prosecutors prove simple negligence to secure a sailor’s manslaughter conviction.
Kierstan Carlson, a Washington lawyer who specializes in the shipping industry, said a dearth of published opinions on the issue poses a significant risk to anyone facing the charge until more courts of circuit or the Supreme Court intervene.
“When we talk to customers about potential exposure or risk under the law, we warn them that simple negligence could be enough,” Carlson said.
Many seafarer manslaughter cases end in guilty pleas, which are not appealed, she said. Several other high-profile cases have been dismissed for other reasons without addressing the issue of negligence.
In the Deepwater Horizon oil rig explosion that killed 11 workers in the Gulf of Mexico in 2010, for example, several defendants had their counts dismissed after courts ruled the charge did not apply. to some platform workers.
In the case of a 2018 duck disaster near Branson, Missouri, that killed 16 passengers and a crew member, federal charges against the captain and two other employees were dismissed because a judge ruled that federal prosecutors had no “admiralty jurisdiction” over Table Rock Lake.
Robert Weisberg, a criminal law professor at Stanford University, said Wu’s ruling was meant to be based on other appellate opinions that found gross negligence a required element for the similar crime of homicide. involuntary, which is also standard in California and in many state courts.
He accused Congress in part of drafting the Sailor Manslaughter Act in an “ad hoc and inconsistent” manner.
Both types of negligence are often viewed as whether someone should be slapped with civil damages or criminally punished for their behavior, Weisberg said.
Simple negligence would be if someone caused harm without ever considering the risks they took. It would be gross negligence if they considered the possible consequences but acted anyway. Gross negligence often incorporates an element of recklessness.
If prosecutors appeal and lose, they could seek another indictment specifying that Boylan was grossly negligent, but that will be a harder burden to prove, Carlson said. They should show that his failures to train the crew and perform a night watch were much more serious.
“The government would have to show that the defendant was aware of the obligation to do these things, had the opportunity to do them, and affirmatively chose not to do them,” she said. “It’s just a deeper level of his failure to do so.”
As a 10-year homicide case, Wu noted the Supreme Court was reluctant to allow prosecutors to be negligent instead of the tougher standard of showing a defendant acted. with criminal intent.
Federal safety investigators never found the cause of the fire, but blamed the ship’s owners, Truth Aquatics Inc., for a lack of oversight, though they weren’t charged with a crime.
Truth Aquatics sued in federal court under a maritime law provision designed to avoid payments to victims’ families. Family members of the dead filed lawsuits against boat owners Glen and Dana Fritzler and the company and also sued the US Coast Guard.
Vicki Moore, wife of Raymond “Scott” Chan and mother Kendra Chan, said the decision was breathtaking and would be amazing if she was allowed to stand. She blames Boylan, the boat’s owners and the Coast Guard’s lax enforcement for the tragedy.
“It took a perfect storm for these three parties to fail in their duties, responsibilities and respect for the law, for decades, to result in the death of 34 souls on the Conception exactly three years ago,” Moore said in a statement.
Associated Press writer Stefanie Dazio contributed to this report.
This story was originally published September 2, 2022 12:05 p.m.