LOS ANGELES (CN) — The federal criminal trial of the captain of a commercial dive boat that was destroyed by fire off the Southern California coast four years ago, killing all 33 passengers and one crew member sleeping below deck, kicked off Wednesday.
Jerry Boylan, 70, faces charges of misconduct or neglect by of a ship officer. Prosecutors with the U.S. attorney's office in Los Angeles accuse him of not having a required night watch on the boat and being the first to abandon ship — and telling the rest of the crew to do the same — instead of trying to stop the fire and save the people trapped below deck.
"Jerry Boylan was the captain, the person in charge of the safety of the passengers and the crew," Assistant U.S. Attorney Matthew O'Brien told the jurors in his opening statement. But "he was the first person to jump off the vessel."
Not only did Boylan's vessel lack a night watch or roving patrol who could have spotted the fire before it spread beyond control, as he was required to have when passengers were sleeping on board, he also didn't train the crew how to use the firefighting equipment on the boat, including two 50-foot hoses with pumps to use seawater to douse the flames, O'Brien said.
The first crew member who had noted the fire on the main deck ran straight past one of the fire stations with a hose because Boylan had never shown him to use the equipment and he had no idea what to do, according to the prosecutor.
Boylan radioed the Coast Guard for help and jumped overboard as the passengers below deck were still alive with their escape routes blocked by heavy smoke. While Boylan had jumped ship at 3:14 a.m., a mobile phone video recovered from one of the passengers showed they were still alive at 3:17 a.m. while the bunk room filled with smoke, O'Brien told the jury.
The Conception, a 75-foot plywood and fiberglass vessel used for overnight diving trips around the Channel Islands across from Santa Barbara, was at anchor near one of the islands in the early morning of Sept. 2, 2019. The boat was on the last stop of a three-day dive trip over the Labor Day weekend, and all passengers were asleep in the bunk room below deck when a fire broke out on the main deck at around 3 a.m.
Boylan and four crew members were asleep on the upper deck, above the main deck, when the fire started, while a sixth crew member slept in the bunk room with the passengers. According to a 2020 National Transportation Safety Board report of the disaster, the second galley hand was awakened by a sound below, and when he looked out, he noticed the fire on the main deck and woke the other crew members sleeping above.
However, the stair from the upper deck to the main deck was already blocked by flames, and the crew had to climb or jump down to the main deck, with one of them breaking his leg in the process. There they found that the entrance to the salon, where both the regular staircase to the bunk room and its escape hatch were locatted, was engulfed in flames and impossible to enter.
Boylan, according to the NTSB report, remained in the wheelhouse to make a distress call. When the smoke got into the wheelhouse, he jumped overboard while other crew members tried to break into the salon and reach the passengers below.
"Jerry Boylan didn't abandon ship," his attorney Georgina Wakefield said in her opening statement. "He stayed in the wheelhouse because that's where the radio is to call for help."
Wakefield said Boylan did what he was trained to do by the owner of the Conception, Glen Fitzler. Boylan had started as a deckhand under Fitzler who himself had captained a dive boat. Fitzler never used a roving patrol on his boats, and passengers would sleep on board his vessels the night before a trip without any crew present because Fitzler didn't want to pay for it, Wakefield said.
Instead of having a night watch or roving patrol, Fitzler had one of the crew members sleep below deck with the passengers according to the attorney, as part of what she referred to as the "Fitzler way."
His attorney also told the jury that Boylan went back on the Conception after he jumped from the wheelhouse and only told the crew to abandon the boat when he saw that the entire deckhouse was on fire. The NTSB report, on the other hand, said that he swam back to the stern of the Conception but was helped into a skiff and made it with the rest of the surviving crew to a sport-fishing boat anchored nearby to call for help.
The criminal investigation of Boylan that the Justice Department started soon after the tragedy had been a "rush to judgment," Wakefield said.
Citing a confidential report by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the LA Times reported in September that the fire started in a large plastic trash can on the boat's main deck, underneath the stairs to the upper deck and just outside the doors to the salon.
Prosecutors accuse Boylan of a series of failures, including not having a night watch or roving patrol on the Conception and not conducting sufficient fire drills or crew training. They also blame him for not providing firefighting instructions or directions to the crew after the fire had started, and for not using firefighting equipment, including a fire ax and fire extinguisher that were next to him in the wheelhouse, to fight the fire or attempt to rescue trapped passengers.
The requirement to keep a watch at night while passengers are embarked on a vessel has been codified in U.S. law since 1871, the NTSB report said.
When the Coast Guard arrived around 4:30 a.m., the Conception was completely engulfed in flames. The boat sank a few hours later. Divers recovered the remains of the victims over the next nine days. All had died from smoke inhalation, according to the Santa Barbara County coroner.
Some of the victims, which included families and groups of friends, were recovered hugging each other as they died, O'Brien said.
The Conception was owned by Truth Aquatics, Fitzler's business in Santa Barbara that operated three dive vessels.
According to the NTSB report, which cited the company and former captains employed by them, the captains of Truth Aquatics' vessels "were given broad authority over the operations of their vessels, to include the hiring, training, and dismissal of crew members; the conduct of routine maintenance; and the establishment and enforcement of vessel operating procedures."
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