Judge tosses manslaughter charge in boat fire that killed 34

Sep 2, 2022, 12:04 AM | Updated: 5:56 pm

FILE - In this photo provided by the Ventura County Fire Department, VCFD firefighters respond to a...

FILE - In this photo provided by the Ventura County Fire Department, VCFD firefighters respond to a fire aboard the Conception dive boat fire in the Santa Barbara Channel off the coast of Southern California on Sept. 2, 2019. On Friday, Sept. 2, 2022, a federal judge has thrown out an indictment charging a boat captain with manslaughter in the deaths of 34 scuba divers three years ago off the California coast (Ventura County Fire Department via AP, File)

(Ventura County Fire Department via AP, File)

LOS ANGELES (AP) — 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. He was accused of “misconduct, negligence and inattention” by failing to train his crew, conduct fire drills and have a roving night watchman on the boat when the fire ignited.

But the indictment failed to specify that Boylan acted with gross negligence, which U.S. District Judge George Wu said was a required element to prove the crime of seaman’s manslaughter and must be listed in the indictment.

Family members of seven of the victims said in a statement that they were stunned by the decision. They criticized Wu’s interpretation of the law.

“This is an outrageous miscarriage of justice and quite a slap in the face to receive on the third anniversary of this disaster,” they wrote. “The captain accepted the responsibility of ‘duty of care’ when he received his merchant mariner’s credential. He violated that duty and then was the first to abandon the vessel.”

Prosecutors will seek approval from the Department of Justice to appeal the ruling, said Thom Mrozek, a spokesperson for the U.S. attorney in Los Angeles. They can also seek a new indictment alleging gross negligence.

Boylan’s lawyers in the federal public defender’s office did not immediately respond to a request for comment.

The judge scrubbed an Oct. 4 trial date.

Boylan and four other crew members, who had been sleeping on an upper deck and escaped from the burning boat, said the blaze prevented them from trying to reach those trapped below deck. Flames blocked a stairwell and a small hatch that were the only exits from below deck, officials said. All 34 perished from smoke inhalation.

The ruling is the second recent blow to prosecutors in 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. Defense lawyers 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 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 argued that the single-count indictment should be thrown out because it did not allege Boylan acted with gross negligence, which they said was a required element of the crime.

Federal prosecutors countered that under the pre-Civil War statute, designed to hold steamboat captains and crew responsible for maritime disasters, they only needed to show Boylan acted with simple negligence, a unique 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 said the 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 win a seaman’s manslaughter conviction.

Kierstan Carlson, a Washington lawyer specializing in the shipping industry, said a dearth of published opinions on the issue presents a big risk for anyone facing the charge until more circuit courts or the Supreme Court weigh in.

“When we speak to clients about potential exposure or risk under the statute, we warn them that simple negligence could be enough,” Carlson said.

Many seaman’s manslaughter cases end in guilty pleas, which aren’t appealed, she said. Several other high-profile cases have been dismissed for other reasons without getting to 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 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, a criminal law professor at Stanford University, said Wu’s ruling was sensible for relying on other appellate opinions that found gross negligence was a required element for the similar crime of involuntary manslaughter, which is also the standard in California and many state courts.

He blamed Congress in part for writing the seaman’s manslaughter law in an “ad hoc and inconsistent” manner.

The two 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 tougher burden to prove, Carlson said. They would have to show that his failures to train crew and post a night watch were much more severe.

“The government would have to show that the defendant was aware of the obligation to do those things, had an opportunity to do them and affirmatively chose not to do so,” she said. “It’s just a deeper level of his failure 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 investigators never found the cause of the fire, but blamed the owners of the vessel, Truth Aquatics Inc., for a lack of oversight, though they were not charged with a crime.

Truth Aquatics sued in federal court under a provision in maritime law to avoid payouts to the families of the victims. Family members of the dead have filed claims against boat owners Glen and Dana Fritzler and the company and have also sued the U.S. Coast Guard.

Vicki Moore, the wife of Raymond “Scott” Chan and mother Kendra Chan, said the ruling was breathtaking and would be unbelievable if allowed to stand. She blames Boylan, the boat’s owners and lax Coast Guard enforcement for the 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.


Associated Press writer Stefanie Dazio contributed to this report.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


Mt. Rainier death...

Associated Press

Missing Mount Rainier climber’s body found in crevasse; he was celebrating 80th birthday

Search crews on Mount Rainier have found the body of a man matching the description of an 80-year-old solo climber reported missing

1 day ago

Washington gun restrictions...

Associated Press

Judge rejects attempt to block new Washington state gun restrictions

A federal judge on Tuesday rejected a request to block a new Washington state law banning the sale of certain semi-automatic rifles

2 days ago

FILE - A man walks past a Microsoft sign set up for the Microsoft BUILD conference, April 28, 2015,...

Associated Press

Microsoft will pay $20M to settle U.S. charges of illegally collecting children’s data

Microsoft will pay a fine of $20 million to settle Federal Trade Commission charges that it illegally collected and retained the data of children

2 days ago

FILE - OpenAI's CEO Sam Altman gestures while speaking at University College London as part of his ...

Associated Press

OpenAI boss ‘heartened’ by talks with world leaders over will to contain AI risks

OpenAI CEO Sam Altman said Monday he was encouraged by a desire shown by world leaders to contain any risks posed by the artificial intelligence technology his company and others are developing.

3 days ago

FILE - The draft of a bill that President Joe Biden and House Speaker Kevin McCarthy of Calif., neg...

Associated Press

Debt deal imposes new work requirements for food aid and that frustrates many Democrats

Democrats are deeply conflicted about the debt ceiling deal, fearing damage has been done to safety net programs

4 days ago

Seattle lawyer...

Associated Press

Lawsuit alleging ex-deputy falsified arrest report settled for $250K

A lawsuit filed by a Washington oyster farmer accusing a former county deputy of falsifying an arrest report

4 days ago

Sponsored Articles

Medicare fraud...

If you’re on Medicare, you can help stop fraud!

Fraud costs Medicare an estimated $60 billion each year and ultimately raises the cost of health care for everyone.

Men's Health Month...

Men’s Health Month: Why It’s Important to Speak About Your Health

June is Men’s Health Month, with the goal to raise awareness about men’s health and to encourage men to speak about their health.

Internet Washington...

Major Internet Upgrade and Expansion Planned This Year in Washington State

Comcast is investing $280 million this year to offer multi-gigabit Internet speeds to more than four million locations.

Compassion International...

Brock Huard and Friends Rally Around The Fight for First Campaign

Professional athletes are teaming up to prevent infant mortality and empower women at risk in communities facing severe poverty.

Emergency Preparedness...

Prepare for the next disaster at the Emergency Preparedness Conference

Being prepared before the next emergency arrives is key to preserving businesses and organizations of many kinds.

SHIBA volunteer...

Volunteer to help people understand their Medicare options!

If you’re retired or getting ready to retire and looking for new ways to stay active, becoming a SHIBA volunteer could be for you!

Judge tosses manslaughter charge in boat fire that killed 34