A federal court in Los Angeles tossed down a manslaughter indictment against a diving boat skipper in the 2019 fire that killed 34 people.
The verdict comes on the third anniversary of one of the deadliest maritime tragedies in recent U.S. history, when the Conception exploded off Santa Barbara on Sept. 2, 2019. All 33 passengers and 1 crew member trapped below deck died.
Federal prosecutors say 68-year-old Captain Jerry Boylan violated safety requirements. He was accused of “misconduct, negligence, and inattention” for neglecting to train his crew, conduct fire drills, and have a roving night watchman on board.
The indictment did not establish that Boylan acted with extreme negligence, which U.S. District Judge George Wu concluded was required to prove seaman’s manslaughter.
Seven victims’ families were startled by the decision, they claimed. Wu’s law interpretation was challenged.
U.S. attorney in Los Angeles Thom Mrozek said prosecutors will seek DOJ approval to appeal. They can also charge excessive negligence.
Boylan’s federal public defenders didn’t immediately comment.
The Oct. 4 trial date was canceled.
Boylan and four other crew members who escaped the flaming boat while sleeping said they couldn’t reach those trapped below deck. Officials said flames blocked the sole stairwell and hatch below deck. Smoke inhalation killed all 34.
The ruling represents prosecutors’ second consecutive loss.
Boylan was indicted on 34 charges of seaman’s manslaughter, each carrying a 10-year jail sentence. Defense counsel contended the fatalities were a one incident, not distinct crimes.
Before that question could be litigated, prosecutors filed a superseding indictment in July charging Boylan with seaman’s manslaughter for all 34 deaths. He faced 10 years in prison if convicted.
The defense said the single-count indictment should be thrown out because it did not allege Boylan behaved with gross carelessness, a needed ingredient of the offense.
Under a pre-Civil War legislation designed to hold steamboat captains and crew liable for maritime tragedies, federal prosecutors only needed to establish Boylan behaved with simple carelessness, a rare bar for a crime.
Prosecutors cited a statute that says captains and other boat employees can face 10 years in prison for “misconduct, negligence, or inattention to his duty on such (a) vessel”
Wu said appellate courts had contradictory negligent case law. Only a New Orleans appeals court required prosecutors to prove basic negligence for seaman manslaughter.
Kierstan Carlson, a Washington shipping lawyer, said a lack of published opinions on the matter poses a risk until more circuit courts or the Supreme Court weigh in.
“We caution clients that basic negligence could be enough,” Carlson added.
Many seaman’s manslaughter cases end in guilty pleas, she added. Several high-profile cases were dismissed without addressing negligence.
Several defendants had counts thrown out in the 2010 Deepwater Horizon oil rig explosion that killed 11 employees in the Gulf of Mexico.
In a 2018 duck boat catastrophe near Branson, Missouri, that killed 16 passengers and a crew member, federal charges were dismissed because prosecutors lacked “admiralty jurisdiction” on Table Rock Lake.
Robert Weisberg, a criminal law expert at Stanford University, said Wu’s ruling was rational for relying on earlier appellate opinions that concluded gross carelessness was an essential ingredient for involuntary manslaughter.
He faulted Congress for the “ad hoc and inconsistent” seaman’s manslaughter law.
Weisberg said the two categories of negligence determine whether someone should be fined or jailed.
Negligence is causing harm without considering the risks. Considering the dangers and acting anyway would be extreme negligence. Gross negligence includes recklessness.
If prosecutors lose their appeal, they could seek another indictment alleging Boylan was grossly negligent, Carlson said. They must establish that his failures to train employees and post a night watch were worse.
“The government would have to establish that the defendant knew about the responsibility, had a chance to fulfill it, and decided not to,” she said. “His failure is deeper.”
As a homicide case with a 10-year sentence, Wu noted the Supreme Court’s reluctance to enable prosecutors to demonstrate negligence instead of criminal intent.
Federal safety authorities never established the cause of the fire, but blamed the vessel’s owners for a lack of control. They were not charged with a crime.
Truth Aquatics sued in federal court to avoid victim compensation. Families of the victims have sued boat owners Glen and Dana Fritzler, the corporation, and the Coast Guard.
Vicki Moore, wife of Raymond “Scott” Chan and mother Kendra Chan, said the ruling was breathtaking. She blames Boylan, the boat’s owners, and the Coast Guard.
“It required a perfect storm of these three parties being neglectful in their obligations, responsibilities, and obedience to the law, over decades,” Moore said.