The Maritime Law Corner

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Update to the Proposed New CARB Rules

The newly proposed California Air Resources Board (“CARB”) rules kept me busy this Fall attending meetings with various marina, sportfishing, and commercial and recreational boating groups. The new rules proposed by CARB involve amendments to engine regulations requiring advanced engine technology and advanced retrofit emission control devices in commercial vessel applications, as well as other strategies for reducing emissions.  The amended regulations would affect commercial passenger boats, specifically sportfishing, whale watching, eco-tourism, and dive boats.

On Nov. 19, the Board listened to testimony from various commercial vessel owners, anglers, marine-life enthusiasts, non-profit organizations, marine operators, and small business owners about the proposed engine emission regulations that are to be implemented in 2023.  After listening to significant opposition, the Board decided to revisit the regulations in 2022. There should be a new public comment period before CARB addresses this further. CARB’s website has no updates at this time.

CARB’s recommended engine regulations require commercial passenger boat engines to be rigged with new engines and diesel particulate filters (“DPFs”), which have not been tested on passenger vessels. These engines do exist; however, they have never existed in a marine environment.  DPFs found on trucks and farm equipment have been known to create robust heat and severe back pressure on engines.  Boat captains and harbormasters are worried that blocked exhaust systems may not be as manageable on the sea as they are on land.

Opponents argue that CARB’s newly regulated engines will run too hot and the DPF unit that will have to be mounted in a boat will run so hot that it is not safe to operate on a wood or fiberglass vessel. Additionally, the Coast Guard has not approved this equipment.

“Trucks are currently operating with this engine but in a truck if the filter clogs, it can pull off to the side of the road get out and call for a tow,” said one concerned commercial vessel operator about an engine fire or failure. “The possibility of the engine catching fire opens the possibility for boats to crash into other vessels or jetties.”

The Conception Case – Two Years Later

On September 2, 2019, the Conception, a 75-foot commercial dive boat based in Santa Barbara Harbor owned and operated by Truth Aquatics, caught fire off the coast of Santa Cruz Island killing one crew member and 33 passengers. Ultimately, the cause of the fire was due to failure to provide oversight of the vessel and poor maintenance.

Federal and international regulations require boats over a certain size to be made of fire-resistant materials and to include fire sprinklers and smoke detectors wired into the ship’s electronics or linked to the bridge. Given the vessel’s age and size, Conception, at less than 100 GT and with fewer than 49 berths, was not covered by those regulations. It was constructed of wood covered with fiberglass, as permitted by regulations last updated in 1978. At the time of the fire, Conception was believed to be in compliance with those regulations, and the most recent Coast Guard inspections in February 2019 and August 2018 did not result in any noteworthy violations.

The NTSB investigated the incident and on October 20, 2020 released its findings. The NTSB report stated that the deaths may have been prevented if the boat had a roving watchman, as required by USCG regulations. Investigators found several bodies wearing shoes and believed that some of the victims may have been awake and trying to escape before being overcome by smoke. The NTSB concluded “most of the victims were awake but could not escape the bunkroom before all were overcome by smoke inhalation”, based on their state of dress and evidence demonstrating that several had left their bunks and had gathered belongings for escape.

Truth Aquatics Lawsuit to Limit its Liability

Three days after the fire, on September 5, 2019, Truth Aquatics filed a lawsuit in the United States District Court for the Central District of California, seeking to limit its liability under the Limitation of Liability Act of 1851. This was an attempt to limit its liability for monetary damages to the value of the ship. Under the Act, a ship’s value is assessed after it sank; because the insurer had deemed it a total wreck, the value was US$0.  Truth Aquatics subsequently agreed to pause this lawsuit to limit liability until the lawsuits filed by the families of the victims were resolved.

Surviving Crew Member Lawsuit

The first lawsuit against Truth Aquatics was filed on September 12, 2019 by one of the surviving crew members from the Conception. The civil lawsuit, filed in Ventura County Superior Court against Truth Aquatics and Worldwide Diving Adventures, claimed the crew had not received proper training nor was the boat outfitted with appropriate emergency equipment.

Victim Lawsuits Against Truth Aquatics

A counterclaim against the original limitation of liability suit was filed in November 2019 by the spouse of a passenger who died aboard Conception, seeking funeral expenses and wrongful death, survival, and punitive damages. In January 2020, attorneys representing the families of four more victims also responded to the original suit with wrongful death claims, claiming “The defendants killed these victims by breaking the law and failing to have a roving night watch whose job was to prevent the very catastrophe that occurred.” By December 2020, 32 of the victims’ families had filed claims against boat owners Glen and Dana Fritzler and their company.  These cases are still open and pending.

Criminal Case Filed Against Conception’s Captain Jerry Boylan

In December 2020, Jerry Boylan, age 67, was indicted by a federal grand jury for 34 counts of seaman’s manslaughter.  The text of the indictment stated that the captain was responsible for the disaster “by his misconduct, negligence, and inattention to his duties”. The rare federal charges against the captain were brought under a pre-Civil War law designed to hold steamboat captains and crew responsible for maritime disasters that were much more frequent at the time.  Boylan was arraigned in Federal court in February 2021 and plead not guilty to the charges. The criminal case is also open and pending.

Victim’s Families File Lawsuit Against United States Coast Guard

In a recent development, the families of the 34 victims filed a federal lawsuit against the Coast Guard in September 2021, alleging that its failure to enforce regulations led to the fire and deaths.  That case is pending as well.

Michael Wales is a Maritime Law Attorney in San Diego, California. Mike also owns AGL Yacht Sales, Inc., a San Diego Yacht Brokerage, with his wife Leilani Wales. For assistance with any maritime legal matter you may contact Mike at mwales@waleslaw.com or at 619.493.1700. For information on brokerage boats please visit www.aglyachts.com.