Irvine, United States – September 12, 2019 / The Medler Law Firm – Personal Injury Attorneys /
The Santa Cruz Island boat fire was a senseless tragedy. Thirty-three individuals looking forward to a fun day of scuba diving, as well as one crew member, were needlessly killed when a fire broke out on the Conception ship. Relatives whose loved ones were killed may have many legal questions. It is important to consult with an experienced California boat accident attorney immediately. The Medler Law Firm is offering free consultations if you lost a loved one in this tragedy and have legal questions.
photo credit: LA Times
The Limitation of Liability Lawsuit Filed by the Owners of the Boat
The owners of the boat, Truth Aquatics, Inc., Glen Richard Fritzler and Dana Jeanne Fritzler, and the Fritzler Family Trust dated 07/27/1992, have filed a “Limitation of Liability” Lawsuit in federal court in the Central District of California in Los Angeles, Case No. 2:19-cv-07693. You can reference the lawsuit here. That lawsuit seeks to essentially extinguish the liability of the owners for all wrongful death claims to be filed by family members of loved ones killed on the dive boat. It is quite incredible that the owners have filed this lawsuit, seeking to excuse themselves of financial responsibility, before many relatives have even had the chance to bury their loved ones killed on the boat. The lawsuit is filed under 46 U.S.C. Secs. 30501 to 30512. The primary sections are 30505 and 30511. That law essentially says that if the owner of a vessel can prove that the vessel was seaworthy, and can prove that the deaths here occurred without the negligence of the owners and without the actual or constructive knowledge of the owners, then the owners can limit their liability to the value of the boat. Here, because the boat was a total loss, the value would probably be zero. Once the owners have filed this lawsuit and posted a bond in the amount of the value of the boat, the federal court typically enjoins or freezes all other wrongful death lawsuits, and requires claimants to make their claim inside the lawsuit already filed by the owners.
Because this is a complicated area of maritime law, claimants who are interested in pursuing claims against the boat owners are encouraged to immediately seek counsel from experienced boat accident attorneys.
Relatives seeking to bring wrongful death lawsuits should NOT be discouraged by the owners’ Limitation of Liability lawsuit.
First, it is important to note that the burden of proof here will be on the owners to prove that they had no knowledge of whatever started the fire. Second, information known by supervisory employees is typically “imputed” to the owners. Third, sometimes, even if the boat itself is seaworthy, the owner may be responsible if some policy it had in place contributed to cause the accident. For example, in one case, where a captain was distracted by a personal cell phone and negligently crashed into another boat, the Court held that the boat owner could not exempt itself of liability, because the owner knew that the crew had personal cell phones on the boat, and the owner, prior to the start of the voyage, did not adopt a policy of insisting that the crew refrain from cell phone use while operating the vessel. At this point, it is too early to tell what acts of negligence, if any, contributed to cause the fire, and what knowledge the owners had in advance which could have prevented the fire. As just one example, if the fire was caused by a defective electrical charging strip, or the overloading of such a strip, or by the storage of a defective lithium battery, it might be proven that the owners had knowledge of such a potential for fire and failed to adopt a policy which would have prevented such a fire. If the owner is unable to make the required proof, then there is no liability limit for wrongful death.
In addition, the Limitation of Liability statute, in 46 U.S.C. Sec. 30512, provides that only the owner can limit liability. No limitation of liability is available to the “master, officers, or seamen” of the ship, who can be sued individually. It is possible that the liability insurance provided by the owners may cover negligent acts by the master, officers, or seamen, and if so, such a lawsuit would not be prohibited or limited. Also, if other entities were negligent or supplied defective products which contributed to cause the fire, the Limitation of Liability provisions do not affect those other potential defendants.
Areas of Inquiry into the Boating Accident
Adam Tucker of the NTSB is leading a team of sixteen investigators and three staffers to determine the cause of the fire and the reason why the passengers perished. It is too early to tell as of this writing why the fire occurred. However, it is not too early to discuss possible areas of inquiry.
Two Means of Escape
The Conception had three levels: the wheelhouse on top, the main dive deck in the middle, and the passenger sleeping quarters below. All 33 passengers were sleeping on the bottom level when the fire broke out. None of them made it out alive.
Federal regulations (46 CFR Sec. 72.10-5) provide that passenger vessels have two means of escape independent of watertight doors. Under Sec. 72.10-10, the two means of escape must be as “remote as practicable so as to minimize the possibility of one incident blocking both escapes.” There were two potential avenues of escape for the passengers on the bottom level. The first was a spiral staircase on the bow end, which led up to the ship’s galley. The second exit has been described as an “escape hatch” located above one of the bunks which supposedly led to a “mess area” next to the galley, and just a few feet from the open deck. The Sheriff’s Department has indicated preliminarily that both escapes here were blocked by fire. It bears investigation, however, why this one fire incident was able to block both avenues of escape so quickly if the escape routes were truly located as remote from each other as practicable.
Under Sec. 72.10-20, any doorways for an escape cannot be lockable, unless the door can be easily forced open in an emergency and there is a conspicuous notice to that effect attached to both sides of the door. The stairway escape route was obviously not locked. It is unknown, however, if the escape hatch was locked, although some published reports state that it was not locked. This needs to be investigated.
According to published news reports, the sleeping quarters below-decks consisted of 13 double-bed bunkbeds and 20 single-bed bunkbeds, for a total capacity of 46 persons. Videos posted online by former customers showed extremely cramped quarters:
Source: CBS8.com
It should be noted, however, that the number of passengers did not violate federal regulations for this type of boat.
Source: USA Today
Under Sec. 72.10-25, the stairways must be of “sufficient width to satisfactorily accommodate the number of persons having access to such stairs for escape purposes.” Videos posted online by former customers show that the stairway escape on this boat was this spiral staircase:
Source: CBS8.com
Query whether that stairwell was big enough to accommodate 33 (or, at full capacity, 46) fleeing passengers in an emergency, in the dark, with smoke filling the boat when time was critical. On the other hand, if the stairwell was completely blocked by fire, it is possible that the width of the staircase would not have made any difference. And it has also been reported that the boat passed safety inspections in February 2019.
The other method of escape was the so-called “escape hatch.” The Truth Aquatics (boat owner) website has an online sketch of the layout of the passenger area. On the sketch, the escape hatch, if any, is not listed. At this point, we were unable to find any photos of this escape hatch. However, in the Mayday call, the captain or another crew member on the radio states, “Roger, and there’s no escape hatch for any of the people on board.” It is unknown whether he meant there was no escape hatch at all; that the escape hatch was locked; or that the escape hatch was blocked by fire or otherwise unusable.
Sec. 72.10-35 provides that in all cases with public spaces having a deck area of over 300 square feet, there shall be two exits, and the exits “shall give egress to different corridors, rooms, or spaces to minimize the possibility of one incident blocking both exits.”
It seems quite strange that none of the thirty-three passengers were able to escape, even at 3 a.m., if the two escape routes were known by the passengers. Did the crew advise all the passengers of the location of the escape hatch? When investigators look at the remains of the boat, will they be able to see if the escape hatch is closed or open?
Fire Extinguishers, Smoke Detectors, and Alarms
According to published reports, the vessel was equipped with smoke detectors, along with fixed and portable fire fighting systems, per federal regulations. Fire detection systems are spelled out in Sec. 76.05. If there were fire extinguishers (fixed and portable), smoke detectors, and alarms, it is baffling why none of the passengers were able to escape in time. One would think that functioning smoke alarms would have immediately alerted the passengers.
Supervised Patrol System
Sec. 76.05-10 provides that the vessel must have a supervised patrol or watchman system. Why didn’t any member of the crew alert any of the passengers and get them to safety? Was there a patrol system in place on the boat?
Crew Assistance
It is strange indeed for 5 of the 6 crew members to make it out but none of the passengers. We have heard the old adage that the “Captain must go down with the ship.” Certainly, there will be questions as to the extent to which crew members warned passengers and assisted them in making it out before attempting to escape themselves.
Cause of the Fire
It is also unknown how the fire started. The NTSB will determine this. Roy Hauser, who designed the Conception, has suggested in news reports that he believes that the fire was caused by a lithium battery charger in the bunk area. Lithium batteries are used in cell phones, laptops, underwater lighting devices, e-cigarettes, and cameras. According to published reports, there was a main charging area with power strips in the galley on the middle deck, directly above the bunk bed area. Could a fire have been caused by an overload on one of the power strips? Was there a policy against lithium battery storage? Was there a policy (as there is with the FAA) to turn off devices with lithium batteries in stowed luggage? Was there a policy to charge lithium battery devices externally on the deck, where there are fewer combustibles and more firefighting equipment? Was there an electrical issue on the boat? Other theories include a fire caused by someone cooking, a stray match, smoking, engine fuel fire, an onboard electrical fire, improperly stored tanks—there are many possibilities.
The Death on the High Seas Act versus the California Wrongful Death Act
In the event it can be established that the vessel owner (assuming no limitation of liability), the scuba company which chartered the boat, or any other entity was negligent and caused the death of these individuals, the next question is whether the California Wrongful Death Act or the federal maritime Death on the High Seas Act (“DOHSA”) will control. In a 1986 case called Offshore Logistics (a case involving individuals injured on an offshore platform in the ocean who were killed when their rescue helicopter went down near Louisiana), the Supreme Court of the United States held that if the DOHSA applies, it “preempts” state wrongful death law. This is not a good result for the relatives attempting to sue, because DOHSA, 46 USC Secs. 30301 to 30307, provides that relatives can only recover “pecuniary” damages (for example, a spouse could recover the wages lost if the other spouse was killed). Any “non-pecuniary” losses, however, like the loss of consortium, emotional damages, etc.—damages which often comprise the bulk of any jury verdict in a wrongful death case– are not recoverable under DOHSA. So when does DOHSA apply? Under 46 USC Sec. 30302, DOHSA applies when the death occurs beyond three nautical miles “from the shore of the United States.” This is going to be an odd case because the death here occurred on the ocean about twenty miles from the coast of Santa Barbara (the mainland “coast”), but about 20 yards from the “coast” of Santa Cruz Island, which is part of California and part of the United States:
So what does “the coast of the United States” mean here—does it mean the coast of Santa Cruz Island, or the mainland coast of California near Santa Barbara? There are not many cases on this issue, so the attorney for the relatives would need to argue that the “coast” refers to the coast of any part of the United States, which includes the coast of Santa Cruz Island. That way, California wrongful death statutes, and not DOHSA, will apply, and relatives can recover the full amount of damages.
Injured Crew
If the members of the crew are injured, they may also have a separate admiralty claim under the federal “Jones Act,” which applies to maritime injuries of seamen.
Consult an Experienced California Boat Accident Attorney
The Medler Law Firm – Personal Injury & Accident Attorneys has handled cases involving boat accidents. It is important that you consult with an experienced boat accident attorney as soon as possible to understand your rights. The Medler Law Firm is available to answer for free any legal questions relating to this tragic incident.
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