ST. LOUIS (CN) — A government lawyer appeared before the Eighth U.S. Circuit Court of Appeals on Thursday to revive a federal grand jury’s indictment of a captain whose duck boat sank in 2018, killing 17 people, including five children.
Brian Casey, an assistant U.S. attorney in Kansas City, Missouri, told the three-judge panel that a district judge had erred in finding the court did not have jurisdiction over the federal charges against Kenneth Scott McKee, the captain who survived his vessel’s sinking on Table Rock Lake in Branson, Missouri.
“Does the district court have the ability to hear this particular case?” Casey asked. “Subject-matter jurisdiction answers that question.”
If revived, McKee would face 17 counts of misconduct relating to the 2018 tragedy. Even if he evades the federal counts, McKee still faces more than two dozen counts filed by state prosecutors.
The deaths occurred after the duck boat, a refurbished amphibious vehicle originally used by the military during World War II, sank during a storm on July 19, 2018. Until the incident, the duck boats were a common and popular attraction at Branson, a Midwestern tourist town known for country music shows and entertainment venues.
McKee’s attorney, James R. Hobbs of Wyrsch Hobbs & Mirakian in Kansas City, centered his argument on whether Table Rock Lake met the standard of being navigable, or able to support commercial vessels, as defined under general admiralty statues.
“The fact is, that under Eighth Circuit law, this waterway has been determined not to be navigable,” Hobbs said. He added, “Table Rock base is primarily recreational.”
Casey addressed the argument in his rebuttal.
“It is a navigable waterway,” he told the court. “It is steaming with commerce.”
The three-judge panel peppered Casey with questions.
Judge Steven Grasz, a Trump appointee, questioned Casey over the general interpretation of the definition of commercial vessels, while Obama appointee Jane Kelly questioned him about jurisdiction.
“The government does not have to claim jurisdiction in a criminal case,” Casey said. “It has it by the nature of the charge.”
Judge Ralph Erickson, another Trump appointee, asked both attorneys about the timing of the motion to challenge jurisdiction, asking why it shouldn’t be left up to a jury to decide after evidence was presented.
Hobbs answered that a motion for lack of jurisdiction can be filed at any time.
“Under Rule 12, which suggests that if there's an issue of capable of determination, at any point, such as before a jury trial, we’re well within our rights, particularly when a government doesn't deny that all its truth was considered,” he added.
Hobbs argued that the government was attempting to expand policing authority beyond general admiralty jurisdiction.
“Admiralty was the sole basis of jurisdiction charged by the government in each of the three indictments, and both the magistrate court and district court dismissed on that basis,” Hobbs said.
The indictment claims McKee didn't tell passengers to put on flotation devices or prepare them to abandon ship even when the ship was in peril after the boat entered Table Rock Lake. It also says McKee lowered the plastic side curtains, which blocked exits, and failed to tell passengers to abandon ship even after the bilge alarm sounded twice.
The vessel first drove tourists through Branson, which is about 170 miles northwest of Little Rock, Arkansas, before travelling to Table Rock Lake for a short trip on water.
Though the weather was calm at the beginning of the trip, prosecutors claim the duck boat operators had plenty of warning about the approaching storm.
The duck boat was not to go on water with winds over 35 mph and waves over two feet. The wind speed at the time of the accident was more than 70 mph, according to the National Transportation Safety Board, and smartphone video shot by passengers on another boat showed waves that appeared to be well over two feet.
Ripley Entertainment, the company that operated the boats, suspended the operation of the duck boats following the accident.
The appeals court took the arguments under advisement. A decision is not expected for several weeks.
Since 1999, 42 deaths have been associated with duck boat accidents, the Associated Press reported.
On May 1, 1999, 13 people died when the Miss Majestic duck boat sank on Lake Hamilton near Hot Springs, Arkansas. In 2015, five college students died and more than 70 people were hurt when a duck boat veered into a charter bus on a bridge in Seattle. Two Hungarian tourists died in 2010 when a stalled duck boat was struck by a tugboat-guided barge on the Delaware River in Philadelphia.
Follow @@joeharris_stl
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
-
Denver Nuggets superfan sues over banishment from games April 22, 2024
