Manslaughter Charges Dismissed Against ‘Conception’ Captain

Judge Permits Refiling of Charges, Feds May Opt to Appeal

IN MEMORY: A memorial at Santa Barbara Harbor remembers each of the 34 people who died aboard the Conception on September 2, 2019. | Credit: Daniel Dreifuss (file)

Labor Day in Santa Barbara will long be remembered for the 34 people who died in a boat fire off Santa Cruz Island. But this year, on the day before the third anniversary of the tragedy aboard the Conception, the federal court dismissed the seaman’s manslaughter charges against the dive boat’s captain, Jerry Boylan.

Civil lawsuits have blamed the fire on the ship’s owners and inadequate Coast Guard inspections, but the legal arguments that led to the dismissal of the criminal charges against Boylan — without prejudice, which means the government may bring new charges — revolved around whether he had to be found guilty of negligence or of gross negligence.

Boylan’s public defenders argued that when it came to criminal acts, the government had to allege gross negligence, as per the plain meaning of criminal negligence described by legal dictionaries, treatises, and case law. In response, the prosecutors listed the failures on Boylan’s part both before and during the fire as demonstrating his “misconduct, negligence, or inattention to his duties,” as described by the manslaughter statute.

Though Boylan was a longtime and respected captain for boat owner Truth Aquatics, most of his crew was new; their experience ranged from one prior trip to about two years. Prosecutors alleged none of them received fire suppression training from their captain, and they didn’t know where the firehoses and pumps were on the ship. Also, Boylan did not set a night watch, even though he knew a fire broke out aboard the Conception’s sister ship the October before. The National Transportation and Safety Board (NTSB) cited the lack of a night watch as one of the main factors that allowed the fire to consume everyone belowdecks.

In describing Boylan’s behavior, prosecutors stated his words and actions were only of escape. After a crewmember woke to smoke and fire below on the main deck, he awakened the crew, and chaos ensued. Boylan called, “abandon ship” or “everyone out,” and the four crewmembers jumped to the main deck, one breaking his leg. Boylan placed mayday calls at around 3:14 a.m., then leapt into the water. Prosecutors allege he didn’t use the boat’s PA system to notify the passengers of the fire. Instead, he yelled for his crew to jump into the water and to lower the skiff to get away. One crewmember who wanted to go back on deck to rescue passengers told prosecutors that Boylan said, “We can’t save them.”

Boylan’s actions weren’t the only ones that doomed the Conception. The NTSB could not positively conclude the tangle of electrical cords charging lithium-ion batteries were to blame for starting the fire, but the wires and batteries were high on the list of potential causes. The agency noted that some of the marine-grade wiring in the galley, where the fire started, had been replaced by below-standard household wiring. Nearly all of the families of the victims have sued the Coast Guard for missing key problems during its inspections of the Conception, including the inadequate escape hatch that led only to the galley where the fire was roaring early that September morning. Legislation since the Conception fire has pushed the Coast Guard to implement stricter standards for overnight passenger vessels.

As far as the ruling that prosecutors failed to allege gross negligence against Boylan, the difference between gross negligence and negligence was seated in the common law understanding of manslaughter, Judge George Wu explained in 12 packed pages of reasoning. 

Two sections of the federal homicide statute were in question: One included maritime jurisdiction; another section was for ship’s officers — and is commonly known as seaman’s manslaughter — which Boylan was charged under. Because the seaman’s manslaughter statute’s Section 1115 and the “gross negligence” standard hasn’t been interpreted by the Ninth Circuit Court of Appeals, where California cases are heard, Wu drew a parallel to the cases involving the other section, Section 1112. He observed that the difference between “slight” negligence as compared to gross negligence was one of “a degree, so gross and wanton, as to be deserving of punishment,” quoting a case called Barbeau. Judge Wu then wrote: “It is difficult for this Court to understand why gross negligence would be required for an involuntary manslaughter conviction under Section 1112 but not for a conviction under Section 1115.”

Judge Wu did recognize striking language from a case in Louisiana’s Fifth Circuit about Section 1115 and simple negligence as applying to commercial vessels operated by those who “daily have the lives of thousand[s] of helpless human beings in their keeping.” The passengers belowdecks on the Conception had two ways out, and both were on fire on September 2, 2019. Prosecutors assert some were awake, dressed, and trying to escape as the captain abandoned ship.The Ninth Circuit will likely have a chance to rule on the issue of negligence or gross negligence for Boylan. The government planned to appeal the judge’s ruling, said Thom Mrozek, spokesperson for the U.S. Attorney’s Office in Los Angeles. 

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