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Legal Perspective - Indictment in Tour Boat Sinking

August 29, 2019

Criminal charges were recently announced by the U.S. Department of Justice in connection with the tragic 2018 sinking of a tour boat in Missouri. The vessel was a former DUKW, converted to passenger service for sightseeing cruises. These craft are commonly called “duck boats,” the rough pronunciation of DUKW, their General Motors acronym from World War Two.

 The tour boat sank after encountering severe weather during an excursion on Table Rock Lake in the Ozarks, near Branson, Missouri. Sadly, the sinking resulted in a loss of seventeen lives. These boats have had critics, stemming from this accident and other incidents over the years.
The indictment that was recently returned under seal from a federal grand jury contained 17 felony charges of negligence and misconduct, one for each passenger lost in the sinking. It also included 13 misdemeanor counts of operating a vessel in a grossly negligent manner that wantonly and recklessly disregarded and endangered the life, limb, and property of those persons on board. That figure came from the 13 passengers who survived the incident.
An indictment is a prosecutor’s formal charge of crimes against an accused defendant.  The matter then proceeds to trial, where the prosecutor presents evidence to support the charges, and the defense presents evidence to challenge those charges and demonstrate innocence. Here, the matter will be placed in the hands of a federal trial jury.
The indictment addressed the failure to properly assess the impending weather conditions
prior to entering the vessel on the water. According to the indictment, there was lightning in the area and severe weather was approaching. It added that severe weather was already present while the vessel was on the water.
The indictment alleged the vessel was operated in violation of the conditions and limitations found in its certificate of inspection. It added that passengers had not been instructed to put on personal floatation devices. The list went on. The DUKW had not immediately increased speed to make it to the nearest shore.
Additionally, the plastic side curtains were lowered, presenting a barrier for passengers to abandon ship. No preparations were made to abandon ship, nor were orders issued for passengers to abandon ship. When the vessel’s bilge alarm sounded, again there was a failure to raise the side curtains, instruct passengers about PFDs, and prepare for abandoning ship - even after a reduction in freeboard.
To say that these boats were not made for operating in heavy seas would be an understatement. Given a choice of vessels to negotiate Jones Inlet, it’s a safe bet that most readers would opt for a 17’ Montauk with an 85-horsepower outboard over a 31-foot DUKW. In all fairness to the DUKW, they filled a need at the time, like Liberty Ships that made up Atlantic convoys during World War Two. The DUKWs were meant to ride up beaches with soldiers and gear during amphibious invasions. The GM engineers over in Detroit in the 1940s probably never envisioned their ingenious design being repurposed in the form of tour boats over half a century later.
In an earlier incident that took place in 2010, a disabled DUKW sank after being struck by a wastewater barge on the Delaware River. Advocates for the DUKW could point out that even a Coast Guard self-righting 44-foot motor lifeboat wouldn’t have fared better being literally run over by a 250-foot barge. And investigation revealed inattention and failing to use the upper pilothouse on the part of the tug operator. It’s also true that some of the accidents involving DUKWs took place on land. However, their overall record has raised serious concerns about the craft.
Given the lawsuits involving these vessels, this indictment brings more attention to a vessel that has already drawn its share of criticism in the maritime community. In terms of criminal procedure, an indictment is not a final decision regarding of guilt; it is the bringing of formal charges. The determination of innocence or guilt is made when the matter goes to trial.
Best wishes for a safe and happy Labor Day.

Reference: U.S. Department of Justice, U.S. Attorney’s Office, Western District of Missouri


 

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