Charter captain faces manslaughter

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His indictment in the deaths of three passengers reflects a trend, say experts

His indictment in the deaths of three passengers reflects a trend, say experts

The indictment of an Oregon charter boat captain in December on manslaughter charges in the deaths of three of his passengers is unusual, but it reflects the growing vigor with which marine accidents are being prosecuted, according to legal experts.

The good news for recreational skippers is that the Seaman’s Manslaughter law, under which Capt. Richard J. Oba faces 30 years in prison, apparently cannot be used against them. However, skippers of private pleasure boats can face jail time, too, if their poor seamanship leads to deaths, according to admiralty lawyers.

In the current judicial climate all boaters should be forewarned. “There clearly is a priority on prosecuting marine cases” using the ancient Seaman’s Manslaughter statute, says Jeanne Grasso, a Washington, D.C.-based attorney. While that statute was enacted in the mid-1800s to deal with steamboat accidents, she notes that six of the eight prosecutions under the law have been brought in the past seven years.

“The short answer is it’s unprecedented,” says Frank DiGiulio, of the Oba case. DiGiulio is a Philadelphia attorney and chairman of the recreational boating committee of the Maritime Law Association of the United States.

The Oba case involves the nighttime sinking of the Bertram 38, Sydney Mae II, Sept. 19, 2005, as Capt. Oba nudged his boat in toward Oregon’s dangerous Umpqua River Bar after returning from tuna fishing offshore. On Jan. 12, the U.S. Attorney for the District of Oregon announced Oba’s indictment on three counts of Seaman’s Manslaughter, each count carrying a potential 10-year prison term. He is charged with “misconduct, negligence and inattention to his duties” that “destroyed” three lives. The details of Sydney Mae II’s sinking resemble those of numerous fatal accidents — both recreational and commercial — around the country in recent years — events that at one time were seen more as acts of God than criminal negligence.

Oba had guided Sydney Mae II, classified by the Coast Guard as an uninspected vessel, out of Umpqua River at 8 a.m. the day of the sinking with four passengers on board for a trip 50 miles offshore where the tuna were running. As he headed out across the bar, Oba experienced a 2- to 4-foot “ebb chop in all areas [of the bar], with an occasional 6-foot chop,” according to a National Transportation Safety Board report. All the necessary navigational equipment and safety gear for a small charter boat was on board: two GPS units, a chart plotter, radar, color depth sounder, VHF radio, six-person life raft, EPIRB, ring buoy and the “required number of life jackets.” Oba gave no instruction on the use or location of the life jackets, according to the one passenger who survived.

The charter arrived at the fishing grounds at noon, but by 5 p.m. Oba learned that the Coast Guard had closed the Umpqua River Bar to uninspected and recreational vessels due to rough seas. He told his clients to reel in their lines then headed back in. He made plans to bring the boat into Coos Bay, 19 nautical miles south of his home port, but he kept in contact with the Umpqua River Coast Guard Station and others on shore, hoping he could make it to his own dock.

The Umpqua River Bar still was closed when Oba reached shore around 8 p.m. One of his passengers was with him on the flybridge; the other three were in the cabin. In conversations with charter boat captains ashore, Oba got mixed signals. Two captains told him that conditions in the bar were “laying down” and that he could make it across, according to the NTSB. But another captain told Oba, who by now had two customers with him on the bridge, that he had “fished the bar all day, the bar was building, he knew how bad it was out there, and he recommended that the captain not cross the bar,” the report says. “The captain of the Sydney Mae II responded, ‘Oh, I saw it. It’s OK for me.’”

And so Oba nudged his boat within 100 feet of the bar, according to the surviving passenger. It was about 8:30 p.m. when two 10- to 12-foot waves in succession broke over Sydney Mae II’s stern. As the boat sank, Oba tried unsuccessfully to deploy both the life ring and the life raft. His own inflatable life vest failed to inflate automatically when he was in the water, and no one else was wearing a life jacket, the NTSB says.

In the 53-degree water, only Oba, who had manually inflated his PFD, and one customer survived by clinging to the same Type I vest they found floating nearby. Later, the bodies of two customers were found, but the third was lost.

In announcing the charges against Oba, U.S. Attorney Karin J. Immergut said, “The safety of our charter fishing fleet depends on captains acting responsibly. When captains operate their boats unsafely, and people are killed, they must be held accountable.”

Immergut’s assistant, Dwight Holton, wouldn’t say why, with the Seaman’s Manslaughter statute used so rarely, his office chose to make Oba’s case one of the few exceptions.

However, Grasso, the Washington attorney, sees the case as part of a “new trend” spurred by an earlier successful use of the Seaman’s Manslaughter statute. The law helped to “extract guilty pleas” to criminal charges in the case of the 2003 Staten Island Ferry accident in which 11 passengers were killed. There, the ship’s pilot was sentenced to 18 months in prison, and the ferry’s director of operations received a one-year prison sentence.

“It [use of the Seaman’s Manslaughter law] is a part of the larger problem of what the commercial ship owners are referring to as the criminalization of maritime affairs,” says DiGiulio, the chairman of the recreational boating committee. “Since the Exxon Valdez [oil spill in Alaska] there’s been this dramatic change in enforcement of laws against commercial shipping.” He says the heightened enforcement of criminal maritime laws is “trickling down even to the pleasure boat arena.”

DiGiulio notes that Seaman’s Manslaughter charges have been brought against recreational boaters in two instances. The first case was in 1959, when a Michigan powerboater caused an accident that resulted in the death of a woman aboard another powerboat. Lawyers for the accused boater never questioned the use of the law, and their client was convicted and sentenced to a year in jail.

The same charge was brought in 1976 against the skipper and owner of a private 62-foot schooner that sank off Brigantine, N.J., resulting in the death of two crewmembers. The federal judge in the case threw out the charges, ruling that the Seaman’s Manslaughter law applied only to paid seamen, not private boaters. And the judge took notice of the 1959 case, pointing out that that case did not establish precedent in the use of Seaman’s Manslaughter because no one challenged its use then, DiGiulio says.

Grasso says this doesn’t mean that recreational boaters can’t be held criminally responsible — and won’t face jail time — if they cause an accident that takes a life. She points to another federal law that imposes both civil and criminal penalties. That law states: “A person operating a vessel in a grossly negligent manner that endangers the life, limb or property of a person commits a Class A misdemeanor.” According to the U.S. Code, the maximum penalty for a Class A misdemeanor is “one year or less but more than six months” in prison.

And, Grasso says, there are laws in some states that could send a recreational boater to jail as a result of a fatal accident. “Almost all the time, now especially, if there’s a death involved, the incident is going to be investigated criminally, whether it’s federal or state,” Grasso says.