LOS ANGELES–A Los Angeles federal judge threw out an indictment Friday charging a dive boat captain with manslaughter in the deaths of 34 people in a 2019 fire aboard a vessel anchored off the Southern California coast.
The ruling came on the third anniversary of one of the deadliest maritime disasters in recent U.S. history when the Conception went down in flames Sept. 2, 2019, near an island off the coast of Santa Barbara. All 33 passengers and a crew member who were trapped in a bunk room below deck died.
Captain Jerry Boylan, 68, failed to follow safety rules, federal prosecutors said. Federal prosecutors charged him with “misconduct and negligence” for failing to properly train his crew and conduct fire drills. He also failed to have a night watchman who could be on board at all hours when the fire started.
But, the indictment did not specify Boylan’s gross negligence. U.S. District Judge George Wu stated that this was required to prove the crime. The indictment must list Boylan’s actions.
Family members from seven victims stated in a statement they were shocked by the verdict. Wu’s legal interpretation was criticized by them.
” This is an outrageous miscarriage in justice, and quite a slap on the face to be received on the third anniversary. When he was awarded his credential as a merchant mariner, the captain took on responsibility for ‘duty to care’. He broke that duty, and was then the first to abandon his vessel .”
Prosecutors are expected to seek permission from the Department of Justice in order to appeal this ruling, stated Thom Mrozek (a spokesperson for U.S. Attorney in Los Angeles). A new indictment can be filed against them alleging gross negligence.
Boylan did not respond immediately to an inquiry for comment from the federal public defense attorney’s office.
The judge canceled an Oct. 4, trial date.
Boylan, four crew members and two others, had been asleep on the upper deck, and were able to escape from the burning vessel. They said that the fire prevented them reaching the trapped beneath deck. Officials said that flames had blocked the exits to below deck from a small hatch and a staircase. All 34 perished from smoke inhalation.
This ruling marks the second blow delivered by prosecutors to the case.
Boylan originally was indicted on 34 counts of seaman’s manslaughter with each carrying a possible prison term of 10 years if he was convicted. The defense lawyers sought to drop those charges, arguing that the deaths occurred as a result of one incident.
Before that issue could be argued in court, prosecutors got a superseding indictment in July charging Boylan with only one count of seaman’s manslaughter alleging his negligence caused all 34 deaths. If convicted, he would have faced a maximum of 10 years in prison.
The defense also claimed that the indictment for Boylan should be dismissed on a single count because it didn’t allege Boylan committed gross negligence. They said this was an essential element of the crime.
Federal Prosecutors countered, saying that the statute pre-Civil War, which was intended to hold steamboat captains responsible for maritime catastrophes, only required them to prove Boylan had acted with simple negligence. This is a rare standard for a felony.
Prosecutors cited the language of the statute that says captains and other boat employees can face up to 10 years in prison for “misconduct, negligence, or inattention to his duties on such [a] vessel [that] the life of any person is destroyed.”
Wu stated that the case law regarding the negligence standard is inconsistent between appellate courts. A New Orleans appels court upheld the requirement for prosecutors to prove simple negligence in order to obtain a conviction for seaman’s murder.
Kierstan Karlson, a Washington attorney who specializes in shipping, stated that a lack of published opinions is a major risk to anyone charged with the crime until further circuit courts and the Supreme Court take up the matter.
” When we talk to clients about the potential exposure and risk, we warn them that negligence can be fatal,” Carlson stated.
Many cases involving seamans’ manslaughter end in guilty pleas. These are not appealable, she stated. Many other cases of high importance have been dropped for different reasons, without getting into the matter 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 counts thrown out after courts said the charge didn’t apply to some workers on the platform.
In the case of a 2018 duck boat 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 said federal prosecutors lacked “admiralty jurisdiction” on Table Rock Lake.
Robert Weisberg is a Stanford University criminal law professor. He said that Wu’s decision was reasonable because it relied on previous appellate opinions which found gross negligence to be a requirement for involuntary murderer. This crime is the same in California as many other state courts.
He attributed part of the blame to Congress for writing the seaman’s manslaughter statute in an “ad-hoc and inconsistent” manner.
The two kinds of negligence can often be seen as whether someone should receive civil damages or be criminally punished, Weisberg stated.
Simple negligence is a person causing harm while not taking into account the potential consequences. Gross negligence would occur if someone didn’t consider the consequences and still acts. Sometimes gross negligence includes a degree of recklessness.
If prosecutors lose an appeal, they can seek another indictment stating that Boylan was grossly negligent, but this will require a heavier burden of proof, Carlson stated. The prosecution would need to prove that Boylan’s failures to post night watches and train his crew were more serious.
” The government would need to prove that defendant knew of these obligations, was given the opportunity to perform them and chose to decline,” she stated. It’s just another level of him failing to do so .”
As a homicide case with a possible 10-year sentence, Wu noted that the Supreme Court has been reluctant to allow prosecutors to show negligence instead of the more difficult standard of showing a defendant acted with criminal intent.
Federal safety inspectors failed to find the cause of fire but blamed Truth Aquatics Inc. for their negligence. They were however not charged.
Truth Aquatics filed a federal lawsuit under a maritime law provision to prevent compensations for the family members of victims. The family members of the deceased have brought claims against Glen Fritzler, the boat owner, and the company. They also sued the U.S. Coast Guard.
Vicki Moor, mother of Raymond Chan and Kendra Chan said that the ruling was amazing and impossible to overturn. Boylan and the boat owners, as well as lax Coast Guard enforcement are to blame for this tragedy.
“It took a perfect storm of these three parties being derelict in their duties, responsibilities, and adherence to the law, over decades, to result in the death of 34 souls on the Conception exactly three years ago,” Moore said in a statement.
By Brian Melley
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