Formal Coast Guard Marine Board of Investigation Delayed by Possible Criminal Charges While Investigators May be Turning to Red Sea Dive Boat Tragedies for Context

The formal start of the Coast Guard Marine Board of Investigation into the dive boat Conception tragedy is being delayed as criminal investigators decide whether to pursue seaman manslaughter charges or rely upon possible civil penalties instead.

The decision makes a big difference in how the hearing process unfolds. If criminal charges are at play, then the boat crew and the owners may need to be formally summoned. Moreover, they cannot be forced to give testimony that may implicate themselves.

“This can make it far harder for the Marine Board,” an admiralty expert in the matter stated. “Any spirit of cooperation is more or less prohibited because of the charges — no matter how helpful the crew and owners want to be.”

It’s possible crew members could be prosecuted because they are alleged to have failed to maintain a required “watch” as the divers slept below. Thirty-four died when a fire broke out on the boat. Most of the crew, sleeping topside, escaped serious harm after rescue proved futile.

The charges would involve seaman’s manslaughter — an arcane crime that needs proof only of simple negligence for conviction and ten year sentences. But ironically, the charges might actually give the ship owners and operators an advantage in civil trials. Normally, civil litigants cannot claim immunity from testimony based on the Fifth Amendment. The seaman’s manslaughter charge, however, could allow that.

As maritime attorneys William Pitard Wynne and Brian Michael Ballay wrote, seaman’s manslaughter can result in “…. potential criminal culpability, premised on actions which, in many cases, could hardly be characterized as criminal.

“There may, however, be a light at the end of the tunnel for the defendant….With the aid of this largely unknown and rarely prosecuted federal criminal offense, the defendant may be able to invoke the privilege against self-incrimination to take arms against the civil and criminal sea of troubles.”

The potential trail to Egypt began when an American diver died after a fire broke out on a dive boat north of Marsa Alam in the Southern Egyptian Red Sea last week.

Most were rescued from the boat. Details are scarce about how the fire started, but the incident appears to have led investigators to the Red Sea and several other dive boat tragedies to provide possible context.

“It would make sense for the Coast Guard to check this out,” one investigator not associated with the case, said. “They need to look at any and all cases of fires aboard dive ships and small ships of the same design.”

There actually are several cases of Egyptian dive boats catching fire and one bearing some resemblance to the Conception tragedy.

That one occurred when an American teacher and two 16-year-old students from the Cairo American College were on the dive boat Sea Queen II. The boat caught fire and exploded off Sharm El Sheikh on February 18, 2004.

Of particular interest to US investigators is this: Police stated ” …. when those interviewed were asked about the cause of the fire, they stated it was most probably due to an electrical short (in the A/C room).

There is one theory that the Conception fire started because of short circuits or overloads from lithium battery charging equipment.

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