Fam­i­lies of fire vic­tims sue own­ers of dive boat

Doc­u­ments al­lege Con­cep­tion was ‘un­sea­wor­thy’

Los Angeles Times - - CALIFORNIA - By Richard Win­ton and Mark Puente

Four fam­i­lies whose rel­a­tives were among the 34 peo­ple killed in a fire on La­bor Day aboard the dive boat Con­cep­tion are su­ing the ves­sel’s own­ers, al­leg­ing they failed to have a rov­ing watch re­quired by the Coast Guard, had in­suf­fi­cient fire sup­pres­sion and de­tec­tion, and had in­ad­e­quate means of es­cape.

Doc­u­ments filed in fed­eral court al­lege that the ves­sel, which was owned by Truth Aquat­ics, was “un­sea­wor­thy” and that its cap­tain, Jerry Boy­lan, failed to prop­erly im­ple­ment re­quired watch poli­cies and pro­ce­dures meant to de­tect emer­gen­cies such as a fire.

A pre­lim­i­nary re­port by the Na­tional Trans­porta­tion Safety Board found that no one was des­ig­nated as a rov­ing watch at the time the blaze en­gulfed the Con­cep­tion off Santa Cruz Is­land, killing ev­ery­one who was sleep­ing be­low deck. The cap­tain and four other crew mem­bers sleep­ing above deck man­aged to es­cape.

The fil­ings Mon­day came af­ter at­tor­neys for Truth Aquat­ics’ own­ers, Glen and Dana Frit­zler, filed a pe­ti­tion in fed­eral court to limit the pay­out to the fam­i­lies of the Con­cep­tion vic­tims. They cited a steamship mar­itime law, the Lim­i­ta­tion of Li­a­bil­ity Act of 1851, in ask­ing a judge to elim­i­nate their fi­nan­cial li­a­bil­ity or lower it to an amount equal to the post­fire value of the boat, or $0.

But at­tor­neys Robert

Mon­geluzzi, one of the na­tion’s lead­ing ex­perts on mar­itime li­a­bil­ity, and Brian Pan­ish con­tend in court pa­pers that the con­duct of Truth Aquat­ics means the ves­sel’s own­ers aren’t cov­ered by that law.

Mon­geluzzi con­tends the Lim­i­ta­tion of Li­a­bil­ity Act of 1851 doesn’t ap­ply be­cause the Con­cep­tion was op­er­ated “in a will­ful, wan­ton and reck­less man­ner” and that the “un­sea­wor­thi­ness” of the ves­sel caused and con­trib­uted to the deaths.

He added that the Frit­zlers “heart­lessly and cal­lously filed a lim­i­ta­tion of li­a­bil­ity ac­tion be­fore the bod­ies had been re­cov­ered or iden­ti­fied.”

Boy­lan, Glen Frit­zler and his at­tor­ney, Hilary Po­tash­ner, did not re­spond to re­quests for com­ment.

The cause of the fire re­mains un­der in­ves­ti­ga­tion, with the Bureau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives con­duct­ing ex­ten­sive test­ing to as­sist. It is be­lieved to be the worst mar­itime dis­as­ter in mod­ern Cal­i­for­nia his­tory.

Some boat safety ex­perts have pointed to the charg­ing of lithium-ion bat­ter­ies — which have be­come a sta­ple for divers who use them to power un­der­wa­ter equip­ment such as lights, cam­eras and scoot­ers — as a pos­si­ble start­ing point for the blaze.

The law­suits al­lege Truth Aquat­ics “en­cour­aged crew mem­bers and pas­sen­gers” to use the ship’s elec­tri­cal sys­tem to charge phones, cam­eras, strobe lights and other de­vices in an area di­rectly above where the pas­sen­gers slept. They claim the com­pany knew about the dan­gers of lithium-ion bat­ter­ies from a fire a year ear­lier on an­other of its boats but took no steps to add safety mea­sures, ac­cord­ing to the fil­ings.

The Times first re­ported the fire aboard the Truth Aquat­ics boat Vi­sion last month. In that in­ci­dent, a lithium-ion bat­tery be­gan to smol­der as it was charg­ing. An alarmed crew mem­ber quickly tossed it into the wa­ter, pre­vent­ing the blaze from spread­ing, a wit­ness and sev­eral sources told The Times.

Coast Guard in­spec­tors in Cal­i­for­nia didn’t know about the pre­vi­ous fire aboard the Vi­sion un­til The Times re­quested de­tails about it.

Af­ter the Con­cep­tion fire, the Coast Guard for the first time rec­om­mended that own­ers of pas­sen­ger ves­sels im­me­di­ately urge crews “to re­duce po­ten­tial fire haz­ards and con­sider lim­it­ing the un­su­per­vised charg­ing of lithium-ion bat­ter­ies and ex­ten­sive use of power strips and ex­ten­sion cords.”

Among dam­ages, the law­suits seek com­pen­sa­tion for med­i­cal, funeral and burial ex­penses, lost wages and the eco­nomic loss to the vic­tims’ es­tates. The suits were filed by the fam­i­lies of pas­sen­gers Yu­lia Krashen­naya, Kaus­tubh Nir­mal, San­jeeri Deop­u­jari and crew mem­ber Alexan­dra Kurtz.

At­tor­ney Jeff Good­man, who is also rep­re­sent­ing rel­a­tives, said a rov­ing watch on the Con­cep­tion could have saved lives. “The lack of night watch is one of the truly egre­gious acts by the cap­tain in this case,” he said.

“The is­sue is even more im­por­tant in to­day’s day and age be­cause at night while peo­ple are sleep­ing down be­low you have bat­ter­ies that are charg­ing that pose a safety risk,” Mon­geluzzi said. “Some of Truth Aquat­ics’ own cap­tains have been quoted in the press ac­knowl­edg­ing they did not have reg­u­lar pa­trols. That is a vi­o­la­tion of fed­eral law.”

A Times in­ves­ti­ga­tion found that other cap­tains with Truth Aquat­ics said they didn’t have for­mal rov­ing watch sched­ules even though the boat’s cer­tifi­cate of in­spec­tion re­quires a crew mem­ber to be des­ig­nated “as a rov­ing pa­trol at all times, whether or not the ves­sel is un­der­way, when the pas­sen­gers’ bunks are oc­cu­pied.”

In the days af­ter the fire, a state­ment from an at­tor­ney rep­re­sent­ing Truth Aquat­ics said a crew mem­ber had checked the area where the fire broke out about half an hour ear­lier and found noth­ing un­usual.

The fire is now the sub­ject of a crim­i­nal in­ves­ti­ga­tion by the Coast Guard and the FBI that’s over­seen by the U.S. at­tor­ney’s of­fice, in ad­di­tion to in­quiries by the Na­tional Trans­porta­tion Safety Board and the Coast Guard Marine Board of In­ves­ti­ga­tion.

The NTSB’s pre­lim­i­nary in­ves­ti­ga­tion found that the crew mem­bers were sleep­ing in a berth be­hind the wheel­house when the fire broke out.

By the time they awoke and jumped down to the main deck, they found the gal­ley and sa­lon en­gulfed in f lames. The main bunk room where their 33 cus­tomers and a fel­low crew mem­ber slept lay di­rectly be­low, in the belly of the boat.

Good­man said there was no suf­fi­cient means of es­cape for the peo­ple be­low deck. “It gave them no way to get out and it re­sulted in 34 hor­rific, ag­o­niz­ing deaths,” he said.

Mon­geluzzi said Boy­lan should face charges of sea­man’s man­slaugh­ter and that un­der the law all that is re­quired is neg­li­gence. He said that cap­tains in other boat­ing tragedies in Philadel­phia and Bran­son, Mo., faced crim­i­nal charges.

Da­nia Maxwell Los An­ge­les Times

JEFF GOOD­MAN, left, Robert Mon­geluzzi and Robert Glass­man are rep­re­sent­ing rel­a­tives of three pas­sen­gers and a crew mem­ber who died on the Con­cep­tion.

CREW mem­ber Alexan­dra Kurtz died in the blaze on the Con­cep­tion.

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