Is Criminally Charging the “Conception” Dive Ship Crew Justice? Or Just Papering Over the Enablement of Death Traps?

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“Snoozing crew raises specter of criminal charge in boat fire” was the headline of an AP story this week and if the feds do indeed charge the surviving crew of the dive ship Conception, it won’t be the first time in recent years that they have dusted off the archaic “seaman’s manslaughter” statute.

The captain of the Stretch 7 duck boat in Branson, Missouri, already is facing such charges. In that case, he took the duck boat out on the lake without heeding weather forecasts.

Similarly, it might be argued in Conception, that the crew did not post a watch overnight while passengers slept below — a violation of a stipulation of their vessel certification. In such a manner all future mariners be warned: take your duties very seriously or you could spend ten years in prison.

But the question arises of the criminal charges for negligence, based on draconian 19th century concepts: Toward what end? Does this approach really work?

It might.

If the challenge facing the dive ship and duck boat sectors is that negligent and careless crew members are mishandling safe and sound vessels. Sentences of ten years “hard labor,” as the statute states it, might work.

But no one would call the dive ship and duck boat fleets in America safe and sound.

Fact is a contrary view held by many at high levels of the safety regulation system states that many of these ships are inherently unsafe and ought to have been scrapped decades ago — or at least more closely regulated.

In strong words, a former head of the National Transportation Safety Board, for example, said duck boats should be scrapped.

In the case of the Stretch 7, the Coast Guard authorized the amphibious vessel to continue carrying passengers despite the fact that:

The Stretch 7 was a decades old World War II vessel.
Major pumps had been altered and removed.
It was of poor boyancy and seaworthiness.
A canopy top actually was shown to ensnare and drown passengers

Other duck boat tragedies had occurred in the past, but the Coast Guard said: You can keep sailing it. Uh, just watch the weather, mate!

The dive boat Conception was perhaps more safe — but a death trap just the same in the eyes of some safety specialists, not because of its owner but because of its nature and design.

Said one senior safety official expert in maritime inspections on background:

“The U.S. Coast Guard should never have certified the CONCEPTION for overnight passengers, let alone 46+ passengers and crew..  

“This is not just 20/20 hindsight talking here.  The idea of 34 persons sleeping in a single small poorly-ventilated compartment with (for all practical purposes) no means of egress to the main deck is problematic and possible negligent/criminal. Panic in any emergency situation (e.g., fire, flooding, etc)  was to be expected.  The Coast Guard’s safety regulations are intended/designed (or should have been) to address the worst case/most likely scenario. 

“Fire on an old oil soaked wooden boat with hundreds of gallons of diesel oil/gasoline/oxygen tanks on board is the number one “worst case scenario…

“Another highly preventable disaster.”

If that executive is correct, and the former chair of the NTSB is correct, then the criminal charges against the crews become less understandable. The system imposes maximum punishment for actions that in most settings would be considered a correctable negligence — actionable but not criminally punishable.

A mistake in this environment is deadly not because the players are so evil, lazy or neglectful, but because a very dangerous situation is officially sanctioned. The duck boats and dive boats were in fact, accidents waiting to happen.

Far more reasonable standards include these:

If a vessel is seaworthy, a storm should be survivable even if the weather is misjudged.

If a dive boat meets modern fire regulations, mass deaths should not occur as a result of a dozing crew member.

Of course, owners and operators and officers and crews bear responsibility — just as those in other industries do. Largely, this is through a modern system of civil remedies. Criminal prosecution is reserved for the hard core cases where devious motives and clear intent prevail.

Seaman’s manslaughter was enacted in the 19th century to counter an epidemic of deaths from exploding boilers on passenger ships. Eventually, a more sophisticated industry and government displaced that criminal remedy through a standard of inspections and civil negligence.

Unsafe ships were driven from service by safety inspectors and insurance rates, not by criminally charging hapless officers and crew members who served on floating bombs.

Perhaps that is the course the Coast Guard and the NTSB will now steer in the duck boat case (still pending) and the dive boat investigation (just starting.)

It seems far more effective than the government prosecuting small players in a large system whose faults are evident and enabled by the government. The right course here is to prosecute change — not deckhands.

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