# Suicide at Sea and captain charged



## davidpm

https://www.pressherald.com/2018/12...-the-boats-captain-is-being-held-responsible/


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## john61ct

Wow. There but for the grace of god. . .


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## krisscross

What a nightmare. But there are some troubling details, placing the captain in a weaker spot, such as not following the standard MOB protocol. Still, I hope that captain is exonerated because it wasn’t an accident and jumper was a clear risk to boat and crew. Self defense trumps following proper MOB protocol, at least IMO.


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## Minnewaska

That's a tough one. I'm sure there is more to it, as I've become highly jaded that the media rushes too much out, without proper vetting.

Nevertheless, there are a couple of exposures for the Captain, as I read them. First, it seems the crew gave the victim a scop patch. These are well known to cause hallucinations in some people. That could be deemed causal.

The second is a bother. I'm trying to imagine not turning around for an MOB. Maybe if sea state was life threatening, but that wasn't mentioned. Indeed, the odds were near zero, but not trying at all has to be some sort of dereliction.

This statement is so ridiculous, it causes suspicion......



> "You can't just turn a boat like that around in the middle of the ocean," Larson said.


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## Minnewaska

My ill informed wager on outcome is he is found guilty, because he made zero effort at rescue, stripped of his captain's ticket (at least for a period of time), but serves little to no time.


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## SeaStar58

Minnewaska said:


> That's a tough one. I'm sure there is more to it, as I've become highly jaded that the media rushes too much out, without proper vetting.
> 
> Nevertheless, there are a couple of exposures for the Captain, as I read them. First, it seems the crew gave the victim a scop patch. These are well known to cause hallucinations in some people. That could be deemed causal.
> 
> The second is a bother. I'm trying to imagine not turning around for an MOB. Maybe if sea state was life threatening, but that wasn't mentioned. Indeed, the odds were near zero, but not trying at all has to be some sort of dereliction.
> 
> This statement is so ridiculous, it causes suspicion......


First they brag on what an expert seaman he is with many years experience but he isn't capable of turning a boat around to perform a standard MOB maneuver?

Waited until the next day to report it sounds fishy too.

That they waited three years to charge him could mean that they have been building their case to better ensure the charges stick as statutes of limitation for murder or manslaughter can give them an infinite amount of time before charges need to be filed.

After the criminal case is over we may see a civil law suite too. No gloves involved here?


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## mbianka

Another good reason to sail alone when one can. You never can know what demons others might carry on board once out at sea. This story reminded me of another fellow jumping into the sea but, from cockpit much higher off the water:


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## davidpm

Minnewaska said:


> Nevertheless, there are a couple of exposures for the Captain, as I read them. First, it seems the crew gave the victim a scop patch. These are well known to cause hallucinations in some people. That could be deemed causal.


Wow, I have to look that up.

Here it is: https://www.everydayhealth.com/drugs/scopolamine

Rare but it happens.

The guy may have been taking other medications.

The story makes it sound like the captain was pissed at the guy rather than looking at it like a medical problem the guy had little control over.


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## tempest

Schedules!! 

Who knows all the conversations that took place. The man was seasick, within an hour of leaving the dock, and never recovered. They never met him before. Why not Turn the boat around, or head for Charleston or Jacksonville and drop him off? 

The man didn't disclose his medical history ( heart, anti-depressants, Antibiotics etc.) That's on him! But, at the same they didn't think to ask? Yes, you can turn a boat around in the ocean! Unless you're more worried about a schedule? 

The Gun and the Pot...will do nothing but hurt his credibility in this regardless of how capable he was. Tough luck for all involved. One mistake can ruin your life.


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## SanderO

I've done enough ocean passages with crew to know that you'll be in a very small place... where you'll have to work together and tolerate people's idiosyncrasies.

Always best to know the crew, their experience and come with strong positive recommendations. If they are a nice pleasant person when you interview them... they could be lying or putting on a show. And you may learn it was a huge mistake. Or you make get lucky. Reduce the risk... do your due diligence in vetting people you go out into the ocean with.


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## SanderO

mbianka said:


> Another good reason to sail alone when one can. You never can know what demons others might carry on board once out at sea. This story reminded me of another fellow jumping into the sea but, from cockpit much higher off the water:


I will do passages with the smallest crew I can.. Single handing can be exhausting... 2 is a lot better... 3 works fine. More than that it's getting crowded in a small boat... all boats are small in the big ocean.


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## Minnewaska

Pretty sure it’s a violation of HIPPA to require disclosure of a crew member’s medical history, as counter intuitive as that may seem for an offshore risk. One might even have legal liability, simply for asking, whether you hire them or not. 

Don’t take this as advice, but one way around it may be requiring a physicians letter stating the crew is fit for a passage. That said, I doubt a physician would exclude that affirmation over controlled depression. It’s also not terribly practical to put all applicants through that and I bet you’d have to make a standard, non-discriminatory practice to get away with it.


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## Scotty C-M

This is a really sad story. Thinking about it not just to Monday morning (literally) quarterback, but to try to prepare myself if I every find myself in an analogous situation. I can see three takeaways:

Finding that a crew aboard my boat is not fit, either physically or mentally, I might try to get that crew member back to shore, or to contact medical assistance ASAP. Reading the early signs of incapacitation can allow me to take action earlier.

Giving a crew member a prescription drug which is not his/hers could open myself up to liability, both legally, financially and ethically. I know that this is a common ocurrance offshore, and may be the best practice. However, because it is prescription, I better be darn sure that it's a last resort kind of thing. Documenting this - the progressive decision process - would be in my best interest. A situation that took days to develop could allow me to contact shoreside medical assistance for advice.

Any Man Overboard situation calls for certain standard procedures. Staying in the area for some time for a search is reasonable. Certainly weather or boat conditions might not allow this, but still, the effort should always be made. Even if you saw a person go down, you would still search, in case he/she came back "up" outside of your sight. That's why we search. A through search, documented in the ship's log, would be prudent.


In my opinion, sailing is an inherently dangerous activity. So is life. In the situation described, there seems to be a lot going on. My sympathies are with all the people involved. It will take a careful examination of the facts to ultimately decide which steps were done correctly, which steps could or should have been done differently, and what steps could be considered unlawful or negligent. The Coast Guard has put out excellent Accident Reports in the past, and it will be interesting to see a comprehensive report for this situation.


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## zeehag

as far as i can see hipaaa can screw itself when needs outweigh secrecy. crew info is most important. safety first. not going to tell me your medical issues, you can find another boat. i have already been tortured by a schizophrenic with ideations and voices demanding he act those out.
not cool
can kill. the boat after mine he touched exploded and burned at sea, a mere 70 miles from the slip he left. so who is correct, the one being blown to kingdom come or the one demanding information you may not feel like allowing. 
if you wish to waste your own money by refusal to state medical needs before heading out on a small place into the middle of an ocean, find someone else to torture with your psychoses. i will not pay, nor will i allow the issue on my boat. btdt and will not repeat.

unfortunately as skipper of my ketch, i am responsible for those in my care, aka crew. same on all boats. yes he is responsible for his crew inclusive of jumper. issues need to be known before departure as the skipper is responsible for health and care of each and all crew as well as boat. oops. ( tie em to mast and call em bob just doesnot work in real life)
the results of this hearing will give an important message to all who skipper their own boats using pick up crew.


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## SanderO

If someone is going to be on my boat for a offshore passage and they refuse to provide their current medical status /history they are not going to be considered. HIPPA does not apply.. nor do any laws for related to the civil rights act.


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## tempest

At the very least, A Prudent Captain 370 miles from shore, could have insisted that a seasick, wobbly person don a life jacket and a tether while on deck. I'm sure it will come up at a hearing.


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## Minnesail

It’s terrible that Mr. Smith was put in that position on his boat, but it does sound like he didn’t act properly.

As ‘Waska pointed out, “You can’t just turn a boat like that around in the middle of the ocean” just sounds silly.

That facts that he didn’t do any overboard procedure, and contacted his weather router before the Coast Guard, are troubling. 

Would it have been appropriate for Smith to contact the Coast Guard before the incident? It seems like having someone sick and hallucinating on board a small boat is a threat to the vessel, and that’s something the USCG would like to know about.



The trazodone bit is interesting. I’ve taken it, it’s no big thing. It works well as a sleep aid and has mild anti-depressive effects. If you have low-level depression and trouble sleeping it’s a two-birds-with-one-stone sort of prescription.

However it is sometimes prescribed off-label to treat the symptoms of severe alcohol withdrawal. I wonder if Mr. Pontious was a near-terminal alcoholic, and this was his very poorly conceived method to de-tox.

It would explain his general ill-health, near instant nausea and sea sickness, depression and paranoia, and hallucinations. All of these are symptoms of de-tox from extremely heavy alcohol use.


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## hpeer

Think of it from the Captain point of view for a second. He is being threatened by some big guy out of his mind. He was just attacked by the guy. What is the Captain state of mind at that instant? Even if he made a mistake, and I’m sure he did, is not the fact that he was just physically assualted a mitigating factor? Finally consider that the Captain is responsible for the entire crew, the jumper was “mutinous” and was a clear risk to the everyone aboard. 300+ miles off shore what’s he gonna do? Call the CG and have them drop a swimmer? How would that even be possible if the guy was truly threatening? 

So the guy jumps, that solves a whole lot of problems. 

2¢


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## PhilCarlson

hpeer said:


> Think of it from the Captain point of view for a second...


I think you're spot on. The skipper made some judgement errors but given the context, understandably so. I've no idea to what extent this will serve as a defense, but I hope considerably so.

How many of us have really gone through the mental drill "what if one of my crew blows an O ring, assaults or threatens the crew, then attempts suicide..." Unless you've considered the question and decided upon some responses, one could spend a lot of time blundering through the problem (as it seems happened here) until it became fatal, and followed by bad, adrenaline fueled, ill informed decisions, that might have seemed ok in the moment.


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## john61ct

Yes I agree (given such limited info) that "morally" there are mitigating circumstances.

Maybe petty, but just a practical "what can we learn from this" minimum lesson is, at least go through the motions of "what a captain is supposed to do", even if in perfunctory fashion to CYA because you know the situation is hopeless in reality.

IOW even if you are a bit negligent, don't flaunt the fact that is your intention.


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## MarkofSeaLife

> Smith said he watched Pontious sink. The water was lit well by a nearly full moon. The wind was at 5 knots, which is calm.
> 
> Smith asked Pepper to shine the spotlight down. They saw nothing.
> 
> "There is nothing we can do," Smith said.
> 
> Pepper and Morningstar were both shaking with fear.
> 
> Smith grabbed the VHF radio to try and contact other vessels. Only static.
> 
> Morningstar asked Smith if they should turn the boat around. Smith did not.
> 
> Larson, the captain who also charters sailboats out of St. John and has known Smith for 10 years, said he's not sure he would have done anything different.
> 
> "You can't just turn a boat like that around in the middle of the ocean," Larson said.


The crux of the story is here, above. In particular the time between each line.

The captian should have turned the boat around and done a propper MOB search; stayed on station; called the USCG; used an EPIRB; fired flares; and used the HF Radio there and then to call for help, not waiting until morning when death was certain.

You cant just sail off because you have had a physical altercation.
That doesn't mean the captain at fear for his life from this 250 pound person needed to just pick him up again... but with 3 crew they could have found the man and used some creative strategy to bond him securely. Perhaps not letting him back onto the boat until he was bound. If he refused to be bound he could be left in the water with a long line and a few fenders to support him, or the dinghy.
The cost of a dinghy, lines, epirb etc is nothing compared to the cost of a persons life.

Further, in this day and age mental health issues should have permeated old idiots brains enough for people to realise you just cant kill people with mental health problems!!!!!!!!!!!!!!!!!!!!!!!!!!!! He has the same responsibility to recover a healthy person as a mentally ill person NO MATTER WHAT the person has done. Are we humans??????????????????

The errant stupidity of bringing a crew on board without a reference, with no real knowledge of the person, with just 12 hours before sailing just staggers me.

The hubris to throw a life ring overboard after the Coast Guard flew over later is also staggering and shows, at the very least, a total lack of empathy, but I would suggest a criminal prima facie case of negligence in the acts and omissions of the captain.

Weather or not he should spend time in jail is not for me... but I don't think he should be allowed to have people on his boat ever again.

Imagine if it was a woman left to die...

Mark


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## MarkofSeaLife

Back to the top of the article



> Smith, Morningstar and Pepper would later tell a Coast Guard investigator that Pontious appeared out of shape when he first boarded the boat around 11 p.m. on Oct. 21. His feet were so swollen that they wouldn't fit in his shoes.


How much of an idiot captain do you need to be to go for a 10 day passage with a person whose feet are too swollen to fit in footwear?

Really?????

How does he keep his feet warm in the October north Carolina chill?


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## eherlihy

I normally don't like to armchair QB these things but for this one, I'll make an exception.



> After an hour or so on the water, Pontious became seasick. The other crew members offered him a patch for motion sickness to put behind his ear but he refused.
> 
> That day he spent lying down and throwing up. When he did walk around the boat, he was wobbly. Strange for someone with many sailing hours logged.
> 
> The next day, Pontious relented and accepted the transdermal patch, but it didn't seem to help. He couldn't keep any food down.
> 
> At one point that afternoon, Pontious said to Pepper, "Do waves ever sound like voices to you?" Later in the night, Pontious disclosed to Pepper that he saw "black spots in the clouds."


The "captain" has two primary responsibilities; the safety of the crew and the safe operation of the vessel. I can think of no valid reason why after underway for "an hour or so" that they did not either return to the original departure point, or head toward another port.

On day 2 when the guy started asking about waves sounding like voices (now underway for a day), they should have been headed toward port AND on the VHF.

After things had escalated to the point where Pontious was knocked down, he should have been restrained and the captain should have issued a MAYDAY, and activated the EPIRB.

Regarding the question of his medical history; I have a medical questionnaire that I give to all prospective crew. Crew fill it out, or they don't come aboard. I don't read it, or keep it. I only have the crew member show me that it is filled out, and where they will store it. I only look if it becomes necessary (and a situation has never arisen on my boat where it was).

HIPPA, Freedom of speech (no politics other than my own!) and ADA do not apply on my boat. My boat, my rules.


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## SeaStar58

MarkofSeaLife said:


> Back to the top of the article
> 
> How much of an idiot captain do you need to be to go for a 10 day passage with a person whose feet are too swollen to fit in footwear?
> 
> Really?????
> 
> How does he keep his feet warm in the October north Carolina chill?


Why would you accept someone in that poor condition to help crew a boat on a week long passage where physically taxing activity is likely to be demanded of them? A lot of really bad things happened here starting with the captain fostering a bad atmosphere near the start of the trip and keeping it going.

Most of us here would have put to port at the first sign of trouble and left him off at the dock calling for assistance from the Police, Coast Guard, etc if need be. Perhaps there was some other relationship going on there (pusher who provided their weed perhaps) that made them want to keep him aboard.

This was discussed at some length before quite some time ago (its come up now and then in the past 3 years) and the story is a bit more complex than a 250 lb gorilla suddenly going loony on a boat and jumping overboard. The skipper had days to react to this situation not just moments so no snap decision was required here.


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## Minnesail

HIPPA wouldn't apply to private boats, it's for medical providers and insurance companies.


I organize a charter trip with about 50 people. I have them fill out a medical form and seal it in an envelope. The envelopes stay in the nav station unless there's a medical emergency (this has never happened), then after the trip they are returned or destroyed. I'm not sure if this is the best solution to medical disclosure, but it's what I came up with.


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## RegisteredUser

We dont have the facts needed....but lets not let that stop us from accusing and convicting.
Throw in some good outrage too


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## MarkofSeaLife

RegisteredUser said:


> We dont have the facts needed....but lets not let that stop us from accusing and convicting.
> Throw in some good outrage too


Yes, I know that. However, forums can be good for this sort of stuff. We rely on the resources we have. This article looks pretty well researched and written.
No doubt everyone is making their honest reactions on the story we have and what they would do, or think they would do, in the same situation.
We *think* we would perform much better than everyone else... but we dont know any of the pressures. Yes, youre right we only know a small percentage of what may have happened. But we would be remiss for safety if we did not discuss it until the time for the last appear has expired.

Unlike with US Judges, we don't presume guilt.


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## Don L

I think the mistake was allowing this guy on the boat, and once it was apparent he was a problem, not turning around and/or heading back ashore to get him off.

But far was the sea recovery, the guy attacked the captain was hard for the crew to contain, and then jumped overboard not of his right mind. For those that argue that more should have been done to recover him (and probably there should have been) don't you feel this would have been putting the boat and rest of crew at danger? 

I guess if it had been me I would have turned around and tried to recover him, but I would have been hard pressed to decide to bring him back aboard if he had display any aggression at that point.


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## Minnewaska

Turning around to locate the MOB and successfully getting one back aboard are totally different. There is absolutely no scenario where a professional Captain can fail to even turn around and look, let alone immediately inform SAR. Reportedly, he’s admitted he didn’t. Unless sea state was life threatening, I see no argument that it would put the current crew in any danger to search. That’s going to cost him his license, I’m sure. It should. 

If the MOB is located, the terms of his reboarding are a different matter. Odds are slim he would have been found anyway. Could be unconscious, delusional, etc. Lots of scenarios. The MOB remaining delusional, refusing assistance and drowning would not be dereliction of duty. 

The potential they caused the delusions with the scope patch, then left him to die, is another threat to this Captain. 

I don’t get the gun thing, but what was the pot for, if they were tossing it before arrival? Was it to be consumed underway? That’s another reason he’ll lose his license. Was the victim impacted by second hand smoke, on top of the meds cocktail he was on? Perhaps their intent was to sneak the gun and pot into the Caribbean, but the potential USCG search concerned them.


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## RegisteredUser

The pot was put in his meals.
The gun belonged to the victim. 
The vic had robbed a pawn shop just minutes before he boarded the boat.
He left the pawn shop thru the plate glass front window, losing his flip flops.
On tender feet, he ran to the marina.
While under the influence of really good killer weed, the cap and crew learned he had stolen 2 Super Bowl rings, 2 sets of drill bits and a rare porcelain doll.

The problem ocurred when the pawn shop assist manager in St John recognised one of the rings as originally his. 

Lets enter Pretend Land, thinking truth and justice prevails......


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## hildamman

That captain belongs in jail. At a minimum he should have turned around, plucked that disturbed person out of the water and put him in restraints. 

Ideally, he would have done something much sooner when that unfortunate soul started hallucinating and behaving irrationally.

The captain is responsible for the wellbeing for his crew and in this case he the captain made no attempt to live up to his responsibility - his responsibility towards his crew was more akin to a corporate employer-employee arrangement than the responsibly expected from a ships captain to his crew.


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## MarkofSeaLife

Don0190 said:


> For those that argue that more should have been done to recover him (and probably there should have been) don't you feel this would have been putting the boat and rest of crew at danger?


The jury will not be 12 honest armature seafarers. It will be 12 honest people who have never been on a boat. They will be reasonable men and womonen in the warm balmy courtroom, not on the cold ocean at night. 
They will be told to consider what they would do, what they think others should do.

And Don, then you say exactly what they will say: "I guess if it had been me I would have turned around and tried to recover him, but I would have been hard pressed to decide to bring him back aboard if he had display any aggression at that point."

Finally, for Registered user, yes I think the drugs and gun are important:
It shows the captain breaking the law in 2 different ways having them on board. or if he allowed crew to have them on board that he made bad decisions on what to allow on board.

Remember the jury will not be like you, they will listen to all the evidence.. . But their minds will be made up by their emotions.

One of my emotions is (you'll scream at this...) grey beard with a twin masted old boat living in the past that he's the Captain and his word is law. 
Like the hubris filled Bounty captain. 
Their word is not law. 12 reasonable men and women may well tell him so.


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## Don L

I think whatever is in the full Coast Guard report is going to be the swing item.

The Grand Jury is going to charge him. I've served on one and we charged everyone as the only one you hear from is the DA and the hurdle is "just the that a crime MAY have been committed"

BTW - I wonder how a court in the USVI even has jurisdiction over something that happened "300 miles from any land"


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## willyd

I don't understand all the rage against the captain. The body sank before they could recover it. That quote about not turning around was by someone who wasn't even on board at the time (and in any case probably refers to going all the way back to the port of origin to return the sick crew member). The body wouldn't have resurfaced for quite some time, no?


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## RegisteredUser

Just split the baby in half and be done with it


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## miatapaul

There are a couple of things that bother me about this. First, yes you can turn turn a boat around in the middle of the ocean not hard at all especially since he was likely motoring at the time. He had a duty to at least make an effort to recover him plain and simple. The only apparent way he attempted to help him was to flash a light at the spot they thought he went down. There was light wind and calm seas so that did not prevent him from doing a MOB procedure. He obviously had communications either satellite phone or SSB as he was able to contact his weather router, but did not use them to contact the Coast Guard? Seems the only logical answer is there was something more going on or he had something to hide. But the real crime here was the Captain was on a schedule that obviously took priority over the health and unfortunately the lives of the crew. There is no reason why he should not have returned to shore to drop off the sick crew member. He obviously was no help to them so any captain would have spent the time to return to a port and drop him off schedule be damned. At least any decent human being would. By not returning to shore or calling for a medical evacuation he was very negligent. 

Guy jumps off boat.
Captain does not even bother to turn around to look for him.
Captain waits 24 hours to even bother to tell someone that he was out there, and then only to a third party.
He obviously had other things at his disposal and did not utilize them.
He is a captain I would not be comfortable being crew or passenger even on a small lake that I could swim to shore from.
Was he negligent absolutely, did his negligence cause the death, yes. All he had to do was return to shore to drop him off or call for a medical evacuation. Might have delayed him a day or two. But that day or two was more important to him than a human life. He should never have gotten 300 miles off shore with his victim.


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## MarkofSeaLife

Don0190 said:


> BTW - I wonder how a court in the USVI even has jurisdiction over something that happened "300 miles from any land"


Its the first country he stopped in. That is the country of jurisdiction NOT the country you left from nor the country you wish to be imprisioned.

Remember that because its quite important if anything happens at sea sail to the jusrisdiction you want... even if you have to sail a looooooong way.


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## willyd

MarkofSeaLife said:


> One of my emotions is (you'll scream at this...) grey beard with a twin masted old boat living in the past that he's the Captain and his word is law.
> Like the hubris filled Bounty captain.


Awash in facts as we are, it appears the only question left unanswered about this case is: do we string him up by the main halyard or the mizzen?

We had a sailor here in Maryland fall overboard while trying to anchor on January 1st a few years ago. The search, which started right after he went overboard (in water let's say 20 feet deep) was called off after a few days. His body was discovered by duck hunters in March, nearly 30 miles from where his boat had been.


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## MarkofSeaLife

willyd said:


> the mizzen?


Ohhhh, is that what they call the lil one down the back? :grin :grin :grin

:devil


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## Minnesail

willyd said:


> the mizzen?





MarkofSeaLife said:


> Ohhhh, is that what they call the lil one down the back? :grin :grin :grin
> 
> :devil


That's what she said.


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## Slayer

MarkofSeaLife said:


> Its the first country he stopped in. That is the country of jurisdiction NOT the country you left from nor the country you wish to be imprisioned.
> 
> Remember that because its quite important if anything happens at sea sail to the jusrisdiction you want... even if you have to sail a looooooong way.


Good to know and very interesting. I don't think you are a lawyer (take it as a compliment), and you may not know the answer. And this is in no way challenging your assertion. So if this boat had sailed to the Dominican Republic then left without being charged, is the DR the only place that has jurisdiction to prosecute any possible crime?


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## Sailormon6

Quote: "Then Pontious, who stood 6 feet and weighed at least 250 pounds, grabbed Smith by the shoulders and started to shake him. He punched him twice and then started to choke him.

Smith needed help. Pepper tried to grab Pontious but Pontious tossed him aside and threatened, "You'll get it next."

But Smith had a small opening. He turned the boat suddenly starboard, which knocked Pontious off his feet."

It seems to me that, when a severely crazed and hallucinating 250 pound man punches and chokes the skipper, and two men can't control him, that constitutes a lethal threat, and the skipper had every right to use lethal force in defense of himself and his crew. But the skipper didn't use lethal force. Instead, he jerked the wheel, causing the man to lose his footing and fall overboard.

What can the skipper reasonably be expected to do next under all the circumstances? Pull this irrational, homicidal man back onto the boat, where he can again become a lethal threat to them all? The yacht had no brig. How do you reliably restrain him, so that he can't break himself loose, grab a knife from the galley or other weapon and attack again?

The news article discussed the essence of the alleged criminal offense: "The focus is on misconduct, negligence or inattention to duties," he said. "At least as written, it's not the same as beyond a reasonable doubt."

Twain Braden, a maritime attorney in Portland, agreed the case "is unusual in that it involves an apparent suicide, yet the captain is being charged nonetheless for his apparent callousness or failure to act after the fact, even though the facts suggest the person had already been lost."

That begs the question: Would it have been negligent for the skipper to bring the out-of-control, hallucinating, homicidal man back on board the yacht, thus putting the lives of others at considerable risk?

I think the skipper was on the horns of a dilemma. He had to make a hard choice. There were no lawyers or judges available to help him make the right choice. He made a choice that ensured the safety of his crew, and, based on the limited facts in the article, I can't say it was the wrong choice. Was he more negligent to leave the man in the water, where he couldn't harm them, or would he have been more negligent to bring him back on board, where he could harm them?


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## Slayer

Love how the “facts” change as the thread progresses. He did not fall off the boat as a result of the Captain jerking the wheel. Captain jerked the wheel, man fell down then got up. He then jumped off the boat.


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## MarkofSeaLife

Slayer said:


> So if this boat had sailed to the Dominican Republic then left without being charged, is the DR the only place that has jurisdiction to prosecute any possible crime?


Your question has made many maritime lawyers rich...



> COASTAL STATE JURISDICTION
> If a vessel is traveling through a country's territorial sea, which is technically 12 nautical miles (nm) from the TSB, any crimes committed will be under the jurisdiction of that state. This applies regardless if said vessel is docking on one of its ports or not.
> 
> if a crime is committed in international waters, the next port in which the vessel will dock will then also have jurisdiction. The Master of the Ship may alert any incident to the next-port state.
> 
> JURISDICTION BASED ON NATIONALITY
> The nationality of the accused, as well as the victim of any crime, may bring a state to claim jurisdiction over an incident. Regardless if the crime takes place on the high seas or in the territory of another country, a state has the power to sanction or protect an individual based on its domestic laws.


I moved some paragraphs around for clarity.
https://broward-criminal-lawyer.com/jurisdiction-crimes-committed-sea/

Where this came up that was important for me was salvaging an expensive yacht mid-Atlantic and I had to select which Caribbean island/country I would land at first. I would have picked a European aligned, modern country... St Martin either side. No where else. Fortunately i didnt have to do the salvage.


----------



## Minnewaska

Lots of analysis of the victim jumping overboard, how he would have been recovered, the need to restrain. I don't understand how any of it absolves the Captain from at least attempting a recovery.

More to the point, he didn't notify anyone until the following day. I've seen no theory that absolves this oddity. 

He's going down.


----------



## SeaStar58

Minnewaska said:


> Lots of analysis of the victim jumping overboard, how he would have been recovered, the need to restrain. I don't understand how any of it absolves the Captain from at least attempting a recovery.
> 
> More to the point, he didn't notify anyone until the following day. I've seen no theory that absolves this oddity.
> 
> He's going down.


That is where it becomes negligent manslaughter at the least. There were a lot of failure points here that were revealed three years ago when the incident first happened that were to say the least incredulous. How quickly we seem to forget that this is not a new and recent story that we are just now seeing for the first time and that much of the detail on this which is not being repeated in the updates about the charges being filed has been out there for a long time.

Fostering the escalation of animosity by the captain himself was one of the points that stood out in the original report on the matter along with failure to head to the nearest port when it was easily done as the earlier signs of trouble were first noted, failure to perform a basic MOB maneuver after the delusional man jumped and failure to report the incident in a timely manner. Most reasonable captains would have turned back and put the man off before they cleared the breakwater and many would not have even left the dock with him still on board.

It will be interesting to see what the past three years of investigation reveal.

Remember the captain who lost his girlfriend a few years ago when the Catamaran they were sailing went down where while he was supposedly trying to rescue/search for her while he instead was collecting personal items, hatcheting at the hull, making business calls, opening sea cocks, etc. The coast guards underwater survey report and his sat phone log revealed all. In Sweden we had that captain with the homemade sub that sank who claimed he tried to rescue his girl however they found the sub which turns out was actually scuttled and contained the remnants of her partially butchered remains still inside it. He thought he scuttled his sub where they would never be able to find it along with the evidence of what really happened but he was wrong

At first many people got all sappy defending these folks when questions started being asked until the info from the investigations came in revealing the timelines and physical evidence of what really transpired. Yes there is the danger of becoming jaded by the frequency at which these things happen however we have to ask and vet them out.

Again it will be interesting to see what three years of investigation reveals about all the people and events that happened on that boat.


----------



## Mikael

davidpm said:


> Wow, I have to look that up.
> 
> Here it is: https://www.everydayhealth.com/drugs/scopolamine
> 
> Rare but it happens.
> 
> The guy may have been taking other medications.


I read the original article and the hallucinations sound _exactly_ like the ones I got from the same scopoderm/scopolamine patches.

In quite big seas with 40-45 knots of wind I experienced both audible (heard "whales singing" etc) and visual ("dolphins in the wave crests" among other stuff) hallucinations. For me it wasn't scary at all since I knew it could happen. Just very weird though, to have the brain tricked into experiencing stuff that isn't real. Also, the hallucinations were quite "light" in a way, so that when someone pointed out to me the real source of sound or told me that there aren't any dolphins there, the hallucination stopped. But again, sitting on the rail and dreaming away... they started again.

I've used the patches a couple of times later also and noticed that the more weather, the more it fusses with the perceptions. But still, quite lightly. I've never experienced hallucinations after that and even then it wasn't too much of a problem. Much happier with the patch than (I assume) without one.


----------



## MarkofSeaLife

The splash into the water may have snapped the person back to reality.


----------



## willyd

Minnewaska said:


> Lots of analysis of the victim jumping overboard, how he would have been recovered, the need to restrain. I don't understand how any of it absolves the Captain from at least attempting a recovery. More to the point, he didn't notify anyone until the following day. I've seen no theory that absolves this oddity.


The body sank and was not recoverable. They saw it sink. Recoveries are for floating objects.

The article says that he wasn't able to contact anyone until the next day. I don't know why that was, but it clearly says "able" not just "didn't".

The next time I have a crew member jump overboard (and it gets reported), I hope some of you aren't on my jury.


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## tempest

willyd said:


> The body sank and was not recoverable. They saw it sink. Recoveries are for floating objects.
> 
> The article says that he wasn't able to contact anyone until the next day. I don't know why that was, but it clearly says "able" not just "didn't".
> 
> The next time I have a crew member jump overboard (and it gets reported), I hope some of you aren't on my jury.


It said "Smith" watched him sink. not "They" Too many questions are left unanswered by this article.

How fast was the boat moving? was it under sail or power. Did he stop the engine or heave-to. immediately. we know he didn't turn around. Because you can't turn around in the ocean. ;-) 
How long was it between him jumping overboard and shining the light on the water, if he didn't stop the boat, where were they shining the light 50 yards, 100 yards astern ? 
Who saw him hit his head? After " Leaping" off the boat.

We'll never know if the guy popped up and watched the boat sail off into the moonlight without him. Because NO real Attempt was even made to search for him. He was written off.


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## caberg

Clearly, the lesson to be learned here is that if a dude falls overboard from your boat -- no matter how you might feel about the guy -- at least stop the boat and pretend like you give a $hit. It's amazing to me that the captain did not have the foresight to see how his actions (or more accurately, his omissions) would be viewed by others after the fact. Makes me think that the captain's mental faculties weren't all there either, although potentially the incident itself left him in some sort of shock that affected his mental reasoning.

That said, I think the "Seaman's Manslaughter Statute" 18 U.S.C. § 1115 is a bad outdated law. This type of situation -- involving just simple ordinary negligence -- should give rise to civil liability and penalties, not a felony conviction with up to 10 years in prison. I don't see the benefit to anyone of criminalizing this type of negligent conduct.


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## willyd

I think it's interesting how we can ascribe actions and attitudes to people due to our own assumptions or other people's words. Have any of you watched this TED talk on false memories? I found it rather eye-opening.

https://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory#t-77871

If that article did not contain the misleading quote from Larson, the captain's friend, we'd have a very different picture of what happened. Ditto for when we are told Morningstar asks Smith to "turn the boat around," which could also very well refer to heading back to North Carolina and not continuing to the Virgins. It's easy to assume that this must refer to going back and circling around where the body sank, when it's actually ambiguous. Given that Larson is a sailor and knows that it's not difficult to turn a boat around (esp. in 5 knots of wind, assuming he knew that), it seems more than likely to me that these two references to Smith not "turning around" refer to returning to the port of origin versus continuing on to their destination.

Furthermore, the article contains another clue that they actually stopped and looked for the body. It says that they shined the spotlight on the spot where the body went in - how likely are they to have kept moving while digging out the spotlight and then training it on the spot in the water where they think the body is as it falls farther and farther astern?

We regularly ridicule newspaper articles for containing inaccuracies when it comes to sailing - this article should be treated no differently.


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## Don L

You know, there were 3 people on this boat. If one of them seriously felt they should have gone searching for this crazy dangerous person that jumped off the boat I bet that would have been mentioned in the article. 

But, I understand internet forum posters always understand and make the right judgements from their computers over those that were there.


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## caberg

Don0190 said:


> But, I understand internet forum posters always understand and make the right judgements from their computers over those that were there.


This is an ironic point to make as an internet forum poster yourself who is commenting on the situation.

But in any event, we do know that a prosecutor and a grand jury have reviewed the evidence and felt that there was enough evidence of negligence against the captain to obtain a conviction at trial. Of course they could be wrong and the judicial system does not always achieve the correct outcome, but it's the best we got.


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## RegisteredUser

What is the best portable cooler to use when tailgating a public hanging?


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## MarkofSeaLife

Every one of these disaster discussions ends up with "Well you wern't there how the hell would you know"
No, none of us were there and I think everyone realises that.

But theres lots we can LEARN about how we would react in a similar situation. Thats why these discussions are valuable!

If you see someone fall overboard yes they will be sinking at the moment the go under the water. But a boat speed is 100 feet per knot per minute so if the boat was going 5 knots thats 500 feet per minutes = 8 feet per second. how many seconds did the captain observe the person doing down and NOT coming up?? 5 seconds? 40 feet? on a 40 foot boat?
But I can hold my breath well over 5 seconds. cant I, cant you? So yes, he may have been seen sinking but he would not have had the chance to pop up again. Or was he holding a cannon ball (Master and Commander)?
Yes these questions can only be resolved by a judge and jury but theres no problems with our smart brains learning *now* what we would do,


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## Minnesail

MarkofSeaLife said:


> Or was he holding a cannon ball


Yeah!

Don't bodies float? Unless you have zero percent body fat, or rocks in your pockets, I'm pretty sure bodies float.


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## willyd

I don't see how the cannonball trick would work - you'd just drop it as soon as you lost consciousness and then pop back up again, or would it force you to lose all the air in your lungs before that happened?

Anyways, there's follow-up article for those interested: https://www.pressherald.com/2018/11...rgin-islands-arrest-after-crew-members-death/

I googled "cooler for public hanging" and this is what came up: https://goimprints.s3.amazonaws.com/images/products/4163072/playmate-elite-cooler-1.jpg


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## Don L

caberg said:


> But in any event, we do know that a prosecutor and a grand jury have reviewed the evidence and felt that there was enough evidence of negligence against the captain to obtain a conviction at trial. .


That's not correct. In places that have the grand jury system every person ever found "not guilty" was at trail because of a persecutor who told the grand jury just what he alone wanted them to hear.

I still stand by my feeling that if there was a real criminal case that the initial CG investigation would have led to action way back. There's something in play here and no matter what happens this boat owner is going to get screwed over badly!


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## caberg

Don0190 said:


> That's not correct. In places that have the grand jury system every person ever found "not guilty" was at trail because of a persecutor who told the grand jury just what he alone wanted them to hear.


Huh? I'm having a hard time understanding what you are trying to say.

Grand juries do not convict, nor do they return "not guilty" verdicts. The whole point is for a prosecutor (not persecutor) to present evidence and essentially get feedback from citizen jurors about whether they find the evidence persuasive as to the subject's guilt. It's part of the reason why federal prosecutors have extremely high conviction (guilty) rates at trial. Because they do a test run of the evidence in front of a grand jury. So no, it's not a guilty verdict, but when a prosecutor moves forward with a case after a grand jury proceeding, it's not looking good for that defendant.


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## RegisteredUser

Fine ladies and gentlemen, do you find that water can be wet?
Jeez.....


----------



## Don L

caberg said:


> Grand juries do not convict, nor do they return "not guilty" verdicts. The whole point is for a prosecutor (not persecutor) to present evidence and essentially get feedback from citizen jurors about whether they find the evidence persuasive as to the subject's guilt.


I spent a month on grand jury duty.

All it really is is a chance for a prosecutor, and only the prosecutor, to spoon feed the jury the absolute barebones of the "facts" in order for the grand jury to believe that there "may" have been a crime that "that person may have done it". The bar is so low an ant can jump over it.

I lost track of how many cases we would hear each morning (never all day because they would have to buy the jury lunch then)


----------



## Don L

RegisteredUser said:


> Fine ladies and gentlemen, do you find that water can be wet?
> Jeez.....


It might, lets convene a grand jury to see if there's enough to proceed. :wink


----------



## RegisteredUser

Don0190 said:


> It might, lets convene a grand jury to see if there's enough to proceed. :wink


We want their feedback after receiving input from only one side....so we can do a test run.
Makes perfect fkg sense....


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## jephotog

caberg said:


> Makes me think that the captain's mental faculties weren't all there either, although potentially the incident itself left him in some sort of shock that affected his mental reasoning.


That or the current threat gave him lazer "fight or flight" focus. After a few days of wondering how to deal with the deteriorating mental condition of this crew member then when Pontius became psychotic and violent, he likely 'thought how am I going to survive this conflict?' When the man jumped overboard he said, 'wow that was easier than i thought.'

If at least one member of the crew thought it was a good idea to try and bring him back onboard, efforts would have been made.

That does not mean the Captain might not go to prison. It is an unfortunate story.


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## hpeer

Once, in my previous professional life, I was shown a jail cell in Penn Station, NYC. it’s a holding cell before moving folks out of the station. This cell was made of heavy steel. Everything welded. The walls were dented and the bars twisted. I’ve seen guys go berserk a couple of times. In high school I helped restrain the fellow, basically the front line of the football team restrained this 98 pounder, barely and with difficulty. And in boot camp something similar occurred and a guy wanted to walk out the second story window, took half the squad to stop him. 

When someone looses their mind they can release an awful destructive force. You can’t believe it unless you’ve seen it.


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## chef2sail

I can only imagine this group of posters as the Grand Jury
Arguing about Hippa and semantics
Never coming to any concerns
No one would ever be indicted


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## SeaStar58

chef2sail said:


> I can only imagine this group of posters as the Grand Jury
> Arguing about Hippa and semantics
> Never coming to any concerns
> No one would ever be indicted


Hung Jury ya think?

Many people here are only focusing on what happened after the Captain goaded this guy on and waited until after it was too late to mitigate the situation. If the reports of the Captain's actions instigating hostility early on hold up then that puts quite a different spin on things. The trial and indictment will likely focus more on that inaction and hostile situation potentially fostered by the Captain prior to the crewman's going berserk along with the timeline of events that followed when they sailed away.

Our discussion on this pretty much guarantees that none of us will be acceptable as jurors

This may become more of a case about Captain's who bully their crew and turn into a Modern Day Captain Bligh out on the water.

We may do well to consider how hard we rib or tease folks on our boats (really anywhere) even if we think that we are doing it in a good natured manner and mean no real harm by it.


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## tempest

chef2sail said:


> I can only imagine this group of posters as the Grand Jury
> Arguing about Hippa and semantics
> Never coming to any concerns
> No one would ever be indicted


It's a General Discussion forum Chef. People discuss things in forums.


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## Don L

chef2sail said:


> No one would ever be indicted


Don't worry, we would indict him. Everyone gets indicated


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## Minnewaska

Four people at departure. Three people at arrival. That’s never goes well for the Captain. Are those basic enough facts we can agree upon?

Bodies do not immediately, permanently sink. Couldn’t contact anyone that day, but could the next? My BS meter is pegging. It’s all for a trial jury to decide, ultimately. I made my prediction early in this thread. I bet he doesn’t do time, but he’s going to pay.


----------



## caberg

Don0190 said:


> All it really is is a chance for a prosecutor, and only the prosecutor, to spoon feed the jury the absolute barebones of the "facts" in order for the grand jury to believe that there "may" have been a crime that "that person may have done it". The bar is so low an ant can jump over it.


A good prosecutor uses a grand jury as a tool to evaluate the chances of winning a case at trial. It's essentially a focus group, which are now used frequently in civil cases. As with a focus group, a good prosecutor will present the problematic evidence to a grand jury to see how it is received, because that problematic evidence will later be presented by the defendant at the trial. An important measure of a prosecutor's job performance is conviction rate at trial (no one cares about indictment rate at the grand jury), so there are not many prosecutors who would want to skew the evidence in the prosecution's favor with a grand jury, only to go on and lose at trial when a good defense attorney presents all the problems with the case. Actually, I'd say the opposite is more likely. A prosecutor who doesn't like the chances of winning at trial can tank the case in front of the grand jury, and have an easy out when the boss and victims want to know why the case is being dropped.


----------



## MarkofSeaLife

Minnewaska said:


> I bet he doesn't do time, but he's going to pay.


I agree.

But he is already 'paying' with 3 years of anguish. However he obviously hasn't had an epiphany that has produced empathy. Maybe thats hard when you have a lawyer. But hell, if only 3/4 of the people on my boat arrived at shore I would be extremely apologetic to the family and do everything in my power to show them that I am commiserating with them for the loss of their son. 
My prediction, too, is no jail time but such a stern lecture that the captain realises that he made the entirely wrong decision/decisions (if the facts are anything like this article).

Now - Can I turn to how employers need to treat employees with mental health problems? Google it. And don't tell me that because you're on a flippin sailboat you can suddenly act like Captain Bligh.

For those that believe that you as a skipper can abrogate responsibility because you are at sea let me dump a few links about Captains responsibilities to mental health of crew at sea:

(in no order)

https://www.martek-marine.com/blog/mental-health-problems-at-sea-a-storm-is-brewing/

https://safety4sea.com/amsa-enhance-mental-health-sea/

https://safety4sea.com/crew-mental-health/

If employers on land are understanding of Mental Health requirements of employees, and
if Professional sea captains are understanding of Mental Health requirements of crew,
why do you expect a Jury to think you dont need to be?

Mark


----------



## willyd

Minnewaska said:


> Bodies do not immediately, permanently sink.


Not true, according to what I found. Apparently bodies that sink below 100 ft* will not resurface: www.pawsoflife.org/Library/Trailing%20Water/body_float_info.pdf

Plus, I already posted an example of a body that sank and didn't come up for months. We also had a guy water skiing get killed near where I live in about 15 feet of water and it took days to find the body.

* = 30 metres in undeveloped countries


----------



## SeaStar58

MarkofSeaLife said:


> ...
> 
> Now - Can I turn to how employers need to treat employees with mental health problems? Google it. And don't tell me that because you're on a flippin sailboat you can suddenly act like Captain Bligh.
> 
> For those that believe that you as a skipper can abrogate responsibility because you are at sea let me dump a few links about Captains responsibilities to mental health of crew at sea:
> 
> (in no order)
> 
> https://www.martek-marine.com/blog/mental-health-problems-at-sea-a-storm-is-brewing/
> 
> https://safety4sea.com/amsa-enhance-mental-health-sea/
> 
> https://safety4sea.com/crew-mental-health/
> 
> If employers on land are understanding of Mental Health requirements of employees, and
> if Professional sea captains are understanding of Mental Health requirements of crew,
> why do you expect a Jury to think you dont need to be?
> 
> Mark


Exactly, especially since this was more of an employee/employer type situation with the people on board crewing to deliver a boat. The other crew members may provide more clarity when they get before a jury and we may find that some of their initial at times conflicting statements get corrected.

In a Secure Skiff Data Facility we would always have three people required for them to be in and stay in the Secure Work Area because with three people involved eventually one of them is much more likely going to spill the beans when something is being distorted or covered up. With the amount of crew involved and the time that's passed if something is being covered up here that too will more likely start to come out when under oath.


----------



## Don L

I reread the story and it’s kind of apparent the the remaining people on board were in fear. But it sounds this unknown law has nothing to do with any of that. All it is about the actions after the guy jumped overboard.


----------



## mstern

caberg said:


> A good prosecutor uses a grand jury as a tool to evaluate the chances of winning a case at trial. It's essentially a focus group, which are now used frequently in civil cases. As with a focus group, a good prosecutor will present the problematic evidence to a grand jury to see how it is received, because that problematic evidence will later be presented by the defendant at the trial. An important measure of a prosecutor's job performance is conviction rate at trial (no one cares about indictment rate at the grand jury), so there are not many prosecutors who would want to skew the evidence in the prosecution's favor with a grand jury, only to go on and lose at trial when a good defense attorney presents all the problems with the case. Actually, I'd say the opposite is more likely. A prosecutor who doesn't like the chances of winning at trial can tank the case in front of the grand jury, and have an easy out when the boss and victims want to know why the case is being dropped.


As a former prosecutor, I have to disagree with this assessment of the purpose of a Grand Jury, and how prosecutors use them. Having spent many days presenting cases to a GJ, I can tell you with certainty, we never gave the "problematic" evidence a thought before presenting a case. And nor should we have.

The purpose of the Grand Jury is to serve as a buffer between the almighty power of the prosecutor's office and the rights of the People. The thinking has always been that the enormous police power of the state to charge an individual with a major crime (a felony; i.e., a crime with potential jail time of more than 1 year) shouldn't be absolute. So the idea of the Grand Jury is to serve as that check.

As several other posters have noted, the burden of proof on the prosecution in the GJ is much lower than at trial. Is there reasonable evidence to believe that a crime has been committed, and that the defendant is implicated in that crime to a sufficient degree to officially charge that individual and proceed to trial? A pretty low bar. I do recall one prosecutor in my office who made some kind of argument in court (after an indictment) that because of the strength of the indictment, the defendant was facing serious trouble. The judge's response, which was endlessly repeated in our office: "Counselor, you could indict a ham sandwich...".

So when presenting cases to the GJ, we presented only as much of the evidence as we needed to to ensure the indictment. We almost never presented actual witnesses or introduced physical evidence. It wasn't necessary, and was seen as counterproductive. What some of you might not know is that when you present a witness at the GJ, you must turn over the transcript of that testimony to the defense before trial. If the witness at trial says something even remotely different than what they said in the GJ, the defense lawyer will use that against them to damage their credibility. And since hearsay evidence is admissable in the GJ, there is usually no need to present more than one witness, usually the Police Officer that conducted the witness interviews. "I interviewed Vince Victim, and he told me that the defendant pulled gun on him and robbed him". Done.

My office didn't need to or want to use the GJ to do dry runs of trials; first off, is no time to do that right. Defendants that are in jail on bail have a right to quickly be indicted or freed. that means the police and the prosecutors have to be quick about GJ action on felonies, and that means no time to put together a practice trial. But more importantly, there is no need to do so. My former office (as do most other DA's offices that I am familiar with) already screen cases immediately after an arrest. Any case with serious evidentiary problems is pulled from the queue of regularly processed cases, and is either given more attention, or sh*tcanned immediately.

Most jurisdictions have a different kind of GJ as well: the investigative GJ. These bodies act independently (remember the phrase "runaway GJ?) and have subpoena power to their own investigations and issue reports and recommendations. But it does not appear that the GJ in question for this unfortunate Captain was one of those.

So, for those of you who think that the fact he was indicted means that the case against this guy is strong or weak, I have to disagree. We don't know anything from the GJ's actions.

And no one I know of ever tanked a case in GJ because we were concerned about our conviction rates. None of us knew enough about the case at the time of GJ presentation to ever worry about. And even if we did think the case stunk (and a lot of them did), the GJ process is more like a factory than anything else. We had no time or energy to worry about what would happen to a case later on; it wasn't going to trial for at least a year, and who knew what would happen by then.

In my five years as a prosecutor, I probably presented a couple hundred matters to a GJ; I remember only one time when I wanted an indictment and didn't get it. I also remember a few times when I wanted them to return a "No True Bill" (no indictment); those were more successful.


----------



## john61ct

I've seen studies that show very clearly most GJs just go along with the prosecutor, in effect 99.9% a rubber stamp.

There really does need to be greater accountability to counterbalance the huge power imbalance between the DA+police nexus and the public they (are supposed to) serve.

But it unfortunately comes down to educated and informed citizens taking responsibility for actively exercising their oversight powers, and boy is that a Sisyphean goal these days, even just voting every once in a while seems too much bother for most.


----------



## caberg

mstern said:


> As a former prosecutor, I have to disagree with this assessment of the purpose of a Grand Jury, and how prosecutors use them. Having spent many days presenting cases to a GJ, I can tell you with certainty, we never gave the "problematic" evidence a thought before presenting a case. And nor should we have.
> 
> The purpose of the Grand Jury is to serve as a buffer between the almighty power of the prosecutor's office and the rights of the People. The thinking has always been that the enormous police power of the state to charge an individual with a major crime (a felony; i.e., a crime with potential jail time of more than 1 year) shouldn't be absolute. So the idea of the Grand Jury is to serve as that check.
> 
> As several other posters have noted, the burden of proof on the prosecution in the GJ is much lower than at trial. Is there reasonable evidence to believe that a crime has been committed, and that the defendant is implicated in that crime to a sufficient degree to officially charge that individual and proceed to trial? A pretty low bar. I do recall one prosecutor in my office who made some kind of argument in court (after an indictment) that because of the strength of the indictment, the defendant was facing serious trouble. The judge's response, which was endlessly repeated in our office: "Counselor, you could indict a ham sandwich...".
> 
> So when presenting cases to the GJ, we presented only as much of the evidence as we needed to to ensure the indictment. We almost never presented actual witnesses or introduced physical evidence. It wasn't necessary, and was seen as counterproductive. What some of you might not know is that when you present a witness at the GJ, you must turn over the transcript of that testimony to the defense before trial. If the witness at trial says something even remotely different than what they said in the GJ, the defense lawyer will use that against them to damage their credibility. And since hearsay evidence is admissable in the GJ, there is usually no need to present more than one witness, usually the Police Officer that conducted the witness interviews. "I interviewed Vince Victim, and he told me that the defendant pulled gun on him and robbed him". Done.
> 
> My office didn't need to or want to use the GJ to do dry runs of trials; first off, is no time to do that right. Defendants that are in jail on bail have a right to quickly be indicted or freed. that means the police and the prosecutors have to be quick about GJ action on felonies, and that means no time to put together a practice trial. But more importantly, there is no need to do so. My former office (as do most other DA's offices that I am familiar with) already screen cases immediately after an arrest. Any case with serious evidentiary problems is pulled from the queue of regularly processed cases, and is either given more attention, or sh*tcanned immediately.
> 
> Most jurisdictions have a different kind of GJ as well: the investigative GJ. These bodies act independently (remember the phrase "runaway GJ?) and have subpoena power to their own investigations and issue reports and recommendations. But it does not appear that the GJ in question for this unfortunate Captain was one of those.
> 
> So, for those of you who think that the fact he was indicted means that the case against this guy is strong or weak, I have to disagree. We don't know anything from the GJ's actions.
> 
> And no one I know of ever tanked a case in GJ because we were concerned about our conviction rates. None of us knew enough about the case at the time of GJ presentation to ever worry about. And even if we did think the case stunk (and a lot of them did), the GJ process is more like a factory than anything else. We had no time or energy to worry about what would happen to a case later on; it wasn't going to trial for at least a year, and who knew what would happen by then.
> 
> In my five years as a prosecutor, I probably presented a couple hundred matters to a GJ; I remember only one time when I wanted an indictment and didn't get it. I also remember a few times when I wanted them to return a "No True Bill" (no indictment); those were more successful.


This is a helpful and interesting insight into the function of a grand jury. Were you a state or federal prosecutor?

I've been a civil trial attorney for 10+ years and have used focus groups and have attended several CLEs on planning and conducting focus groups. The comparison to federal grand jury proceedings has been made many times, and it makes total sense to me. Although I know that AUSAs in my jurisdiction have relatively small caseloads compared to their state counterparts, and have the time to think about and plan their prosecution strategy more carefully. Personally, I can't imagine not exploiting such a valuable tool to receive feedback on problematic issues in my cases. That's the whole point of doing focus groups, and we spend quite a bit of time and money to do them.


----------



## hpeer

First: bodies sink, initially, it’s called drowning. They come back after a few days when the gasses change the buoyancy; it’s called a “floater.”

Second: no matter the outcome of this “process” the capt has been completely screwed. He makes his livid living chartering, his boat is impounded, he’s in house arrest, he faces years of expensive legal fees and social attacks.

Punishment has been rendered, just the duration and severity remains to be determined.


----------



## MarkofSeaLife

hpeer said:


> First: bodies sink, initially, it's called drowning.


They sink when their lungs are full of water. They may not have been. IE he may still been alive. When you jump in you reflexively hold your breath.

As noted earlier by an extremely intelligent person (me) the boat was moving so any view of him sinking and continuing to sink was fleeting as they did not stop, nor reverse course.

As an experiment in the 100 feet per knot per minute math, I will take you on my boat at 4 knots and throw you over amidships and see how long we can peer down underwater to see if you were gunna bob up.

Then we will do it at night, which I gather this case was.

I think the shock of seeing the man jumping over and the fleeting look at a man jumping from 6 foot above water into water would make it look like he is going down.
I would think it I did that 6 foot jump my head would be 4 foot under water before I started to raise again. by the time I float up that 4 feet the boat is long feet down course...


----------



## hpeer

I think they said he cracked his head on the rail when he jumped. So assuming you are unconscious do you float or sink? If you go down 4-6 feet how long does it take you to come up? No one reported hearing him he’ll for help or hear him splashing around. 

What seems in no doubt is that the jumper jumped. He made a simple and decisive move to express his will. It was his action that resulted in his death. Personal responsibility.

None of us know what went on, frankly I doubt the participants really objectively know. We at ALL Monday morning Quarter Backing, theee years on, maybe 6 by trial. There is no “truth”, there is only blame. 

Who applied for the position?
Was he forthcoming with his issues?
Did he know he got sea sick?
Did he bring his meds?
Did he disclose his mental state?
Did he ask to be put ashore?
Did he ask for a medivac?
Has he had similar instances in the last? 
Did he threaten the Master and drew? Is that not mutiny?

The Grand Jury will never know, nor will a jury of his peers. It comes down to either trusting and empathizing with the dead guy or the capt and crew. 

It’s 5pm or later in Bangalor, I’m having another G&T.


----------



## mstern

caberg said:


> This is a helpful and interesting insight into the function of a grand jury. Were you a state or federal prosecutor?
> 
> I've been a civil trial attorney for 10+ years and have used focus groups and have attended several CLEs on planning and conducting focus groups. The comparison to federal grand jury proceedings has been made many times, and it makes total sense to me. Although I know that AUSAs in my jurisdiction have relatively small caseloads compared to their state counterparts, and have the time to think about and plan their prosecution strategy more carefully. Personally, I can't imagine not exploiting such a valuable tool to receive feedback on problematic issues in my cases. That's the whole point of doing focus groups, and we spend quite a bit of time and money to do them.


I was a state prosecutor. And unless federal grand juries work completely differently, I am missing how you get "feedback" from them. You present the case, they say indictment or no indictment. There is no opportunity to ask them what they thought or why they acted as they did. These GJ's are high volume actors, often with lines of ADA's outside of them, waiting their turn to present their case. You aren't allowed to ask them why they acted as they did, even if you had the opportunity to do so.


----------



## Don L

MarkofSeaLife said:


> As noted earlier by an extremely intelligent person (me) the boat was moving so any view of him sinking and continuing to sink was fleeting as they did not stop, nor reverse course.
> 
> As an experiment in the 100 feet per knot per minute math, I will take you on my boat at 4 knots and throw you over amidships and see how long we can peer down underwater to see if you were gunna bob up.
> 
> Then we will do it at night, which I gather this case was.


I'm in. But in fairness you have to be the one going over, and you need to hit your head on the gun rail on the way over.

I'll take care of your boat, I promise :devil


----------



## Minnewaska

willyd said:


> Not true, according to what I found. Apparently bodies that sink below 100 ft* will not resurface: www.pawsoflife.org/Library/Trailing%20Water/body_float_info.pdf


This is for bodies that have already drowned. You're proposing he drowned instantly? You don't believe that. Please.

He was abandon, then drowned.


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## SimonV

Maybe I'm syndical but this "He then climbed up and over the wiring railing and leaped off the port side of the boat. His head hit the railing on the way down." has hairs on it. Could this statement have been made to cover the fact that if the search party did recover the body it would explain the head wounds, which may or may not have happened prior to the big splash?


----------



## smurphny

Sounds like there was no SSB aboard. Seems a bit odd for a boat going this far offshore. Almost negligent in itself if true. There is likely much more to this story than we know.


----------



## MarkofSeaLife

smurphny said:


> Sounds like there was no SSB aboard. Seems a bit odd for a boat going this far offshore. Almost negligent in itself if true. There is likely much more to this story than we know.


There was an ssb because he called Chris Parker on it the next day.


----------



## SV Siren

MarkofSeaLife said:


> As an experiment in the 100 feet per knot per minute math, I will take you on my boat at 4 knots and throw you over amidships and see how long we can peer down underwater to see if you were gunna bob up.
> 
> Then we will do it at night, which I gather this case was.


Doing an actual MOB procedure is not always easy as Mark points out. Practicing should always be a good thing to do.

Case in point: Last year a the START of the Chicago Mackinac race a sailor fell overboard, a mere 5 minutes into the race on a pro boat with pro crew at noon in broad daylight. There were 300 or so entrants. His body was found a week later.

https://chicago.suntimes.com/news/male-body-recovered-six-miles-belmont-harbor-lake-michigan/


----------



## willyd

Minnewaska said:


> This is for bodies that have already drowned. You're proposing he drowned instantly? You don't believe that. Please.
> 
> He was abandoned, then drowned.


And you don't have to believe me. I had the same assumptions you did, but they're not true. Here's a report by some search and rescue experts:

_"How many times has a rescue squad come to a waterfront and heard the family say, "We just looked
away for a second and he was gone." A common misconception is that a swimmer will stay on the surface
struggling and then slowly sink beneath the surface of the water. They mistakenly believe that a witness
will easily have enough time to see the drowning and make a rescue."_​
http://journalofsar.com/wp-content/...red-For-a-Drowning-Victim-to-Reach-Bottom.pdf


----------



## Arcb

SV Siren said:


> Doing an actual MOB procedure is not always easy as Mark points out. Practicing should always be a good thing to do.
> 
> Case in point: Last year a the START of the Chicago Mackinac race a sailor fell overboard, a mere 5 minutes into the race on a pro boat with pro crew at noon in broad daylight. There were 300 or so entrants. His body was found a week later.


The race organisers did a report on this. It was a good sized boat, 50 something feet. 20-25 knots, seas 6-8 ft.

The spotters saw him in the water, they got the boat stopped and turned around and made 3 passes to try and recover. On the third atempt, after an estimated 6 minutes they lost track of him.

https://www.cycracetomackinac.com/c...-inflate-pfd-safety-following-imedi-incident/


----------



## MastUndSchotbruch

SimonV said:


> Maybe I'm syndical but this "He then climbed up and over the wiring railing and leaped off the port side of the boat. His head hit the railing on the way down." has hairs on it. Could this statement have been made to cover the fact that if the search party did recover the body it would explain the head wounds, which may or may not have happened prior to the big splash?


That was exactly my thought when I read that sentence. This was reportedly in calm seas and <5knots wind. Of course we don't know what state he was in but just 'leaping' of the boat in calm seas would usually not getting someone hit his head 'on the railing' (I suppose they meant the toe rail?). Perhaps the boat made a really unusual lurch just at that moment but that seems unlikely, and wouldn't the witnesses have commented on that?

None of us (or the potential jury) was there but to me it sounds questionable.


----------



## jtsailjt

I can understand the Captains frustration with this guy but it does seem pretty cold to just keep going after you see someone leap off your boat. It sounds like he had some serious mental issues that were possibly exacerbated by the Scop or other drugs he was taking and he wasn't doing anything to make himself popular with the rest of the crew and I expect the rest of the crew was both fatigued, stressed, and frightened of a 250#, angry and out of control crew member, so I can see how their initial reaction after he jumped might be "good, that problem child just took care of itself" but a split second later I think most of us, no matter how much we disliked or feared the MOB, would turn the boat around and try to rescue him anyway. 

The article says 5 knots of wind and calm seas on a moonlit night so they must have been motoring so I don't understand how it would be hard to turn the boat around at all. Even without a life jacket, you bob under but don't continuously sink as soon as you enter the water and if they had immediately circled around under power they could have been within feet of his location within a couple of minutes. I obviously wasn't there but I just can't understand Smith's statement that "there's nothing we can do" when there obviously was something they could at least try to do. I don't underestimate the difficulty in getting a MOB, especially a 250# unconscious or belligerent and unwilling one, back aboard, but I just can't understand not trying. It will be interesting to read the transcripts of the other crewmembers statements under oath once the trial is complete.


----------



## miatapaul

SeaStar58 said:


> Hung Jury ya think?
> 
> Many people here are only focusing on what happened after the Captain goaded this guy on and waited until after it was too late to mitigate the situation. If the reports of the Captain's actions instigating hostility early on hold up then that puts quite a different spin on things. The trial and indictment will likely focus more on that inaction and hostile situation potentially fostered by the Captain prior to the crewman's going berserk along with the timeline of events that followed when they sailed away.
> 
> Our discussion on this pretty much guarantees that none of us will be acceptable as jurors
> 
> This may become more of a case about Captain's who bully their crew and turn into a Modern Day Captain Bligh out on the water.
> 
> We may do well to consider how hard we rib or tease folks on our boats (really anywhere) even if we think that we are doing it in a good natured manner and mean no real harm by it.


Actually I think it will focus on the captain not getting medical attention for a sick crew member. Going days and allowing a crew member puke his guts out getting more and more dehydrated yet not seeking medical care for him seems to be the initial negligence. He was unwilling to alter his schedule to the point that it killed a crew member. The unwillingness to even search for the body just proves he was uncaring and vile.


----------



## miatapaul

Don0190 said:


> You know, there were 3 people on this boat. If one of them seriously felt they should have gone searching for this crazy dangerous person that jumped off the boat I bet that would have been mentioned in the article.


It was:

"Pepper and Morningstar were both shaking with fear.

Smith grabbed the VHF radio to try and contact other vessels. Only static.

Morningstar asked Smith if they should turn the boat around. Smith did not."


----------



## john61ct

Yes I think the negligent behaviour before the crisis event is far more relevant.

The apathy after the fact just serves as confirmation, reinforcement of IMO sociopathic attitudes.


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## RegisteredUser

Should we schedule the band to come on before or after the hanging?
Use online TicketMaster or just sell tickets onsite?


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## mstern

RegisteredUser said:


> Use online TicketMaster or just sell tickets onsite?


I hate TicketMaster.


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## RegisteredUser

mstern said:


> I hate TicketMaster.


Ok then, at the gate. Less hassle and dont give up that %
Pot Luck or arrange for taco truck and shaved ice trailer


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## Minnewaska

willyd said:


> And you don't have to believe me. I had the same assumptions you did, but they're not true. Here's a report by some search and rescue experts:
> 
> {snip}
> 
> http://journalofsar.com/wp-content/...red-For-a-Drowning-Victim-to-Reach-Bottom.pdf


I take it you feel the need to defend this Captain to some degree. Your linked article is flawed in this discussion for one major reason and several ancillary ones. First, it assumes the victim has already drowned (ie, air expelled from lungs) which there is absolutely no way the Captain could have known. Secondly, it is filled with theoretical variables the author fully disclaims are not directly related to real situations.



> Timed experiments were done by the authors in a swimming pool where one of the authors swam to about a six foot depth, expelled air, became negatively buoyant and sank to the bottom of the pool. The results of these simulations were used to check if the calculated results were close to the experimental results.
> 
> As with any mathematical model there are serious differences between the model and what actually occurs in a real situation.


The bottom line is, the Captain could not have known his crew member would not have surfaced and failing to make any effort at recovery will be culpable. While it is possible the body would never have surfaced, it's also possible it would have. I don't believe there is any rational way to dispute that. I doubt a recovery would have been successful, based on statistics, but there is no way he's keeping his ticket with the kind of decision making that eliminated any effort to try.


----------



## Sailormon6

Minnewaska said:


> I take it you feel the need to defend this Captain to some degree.


I think willyd is just doing what the petit jurors will do when they hear this case on the merits. They won't convict the captain just because the prosecutor tells them to. They'll want to see proof that the captain's action was negligent. Unless there's a negotiated plea, the defense lawyer will propose a theory of the case that will suggest that the captain's action was reasonable. He doesn't need to convince all the jurors. One will be enough to conclude with a hung jury.

This case will not be a slam dunk for the prosecution. Jurors insist on clear and unequivocal proof before they will convict. The available proof here is limited by the number of witnesses. I presume there will be no video. Jurors love video. The credibility and recollection of the witnesses will be disputed. I don't think this case will turn on the question of whether the man sank immediately or floated, but if the captain says he sank out of sight immediately, who can contradict that, and prove it beyond a reasonable doubt? If the jurors find any reasonable doubt, they'll acquit. They won't convict on the basis of what might or could have happened.

It's entirely conceivable that the captain might be acquitted of the crime and still lose his ticket.


----------



## john61ct

Again, the real negligence was in the early decisions.

The death would have never happened if the captain had acted with proper care.

Everything **up to** the "jumping overboard event" would be my focus.

After the fact was too late, but captain's behaviour then just further highlights his callous disregard for the humanity of his crew.


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## Don L

I can easily see myself accepting it “reasonable” to not have tried to “save” the guy overboard based on a “reasonable” danger and fear of the remaining people on the boat to themselves from him. I admit I have a limited morale framework about protecting people from themselves by putting others in danger.

Personally I think this whole case is part of the civil case that was withdrawn I bet to wait to see how the criminal case goes.


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## hpeer

Frankly I hope the Judge throws this out as frivioulious. 

Did the Capt do everything perfectly? No.

Did the jumper do a whole lot wrong? Yup!

Suppose this was a “stand your ground” case. Who attacked whom?

But on a jury I would have a hard time getting beyond the jumper never calling out for help. If he was unconscious then he likely drowned quickely. If he was conscious then he willfull went through the gate.

The Capt and crew have been punished enough already, just to have lived through this experience. 

That’s my opinion until some new damning evidence surfaces.


----------



## OldEagle

I've read the original account and the comments on this thread. I think the story itself is shocking, and many of the responses on the thread dismaying. 

Assuming that the main facts are reported accurately, these are the key points:
•	The victim was sick when he boarded. Severe foot and ankle swelling pointed towards a serious medical problem. I don't fault the captain for being unable to diagnose the nature of the medical problem, but the presence of a medical problem--not simply physical "unfitness"--was obvious

•	The victim started vomiting almost immediately once they were under way. Within 24 hrs, he was hallucinating (before the scopolamine). Hallucinations aren't a sign of a bad personality or bad character--they are a sign of illness. Again, I don't fault the captain for being unable to diagnose the exact reason for the hallucinations--but he knew that he had a crew member with a baseline medical problem who was deteriorating seriously, and with no clear path to improvement.

•	Here are some points that captain could not be expected to have known, but that are useful in understanding what happened: The leg swelling might have been due to vein disease in the victim's legs, but more likely pointed to kidney, liver or severe heart disease. Liver or kidney disease would have predisposed the victim to internal chemical (metabolic) abnormalities that would have been likely to affect his mental processes. Superimpose the prolonged vomiting, and he was almost certainly delirious, i.e., in a state of "reduced awareness of and responsiveness to the environment, which may be manifested as disorientation, incoherence, and memory disturbance and often marked by hallucinations, delusions, and a dream-like state". His reported behavior is completely consistent with this.

•	In other words, the victim was sick, seriously so, and his confusion and behavior were not voluntary, or even primarily psychiatric in nature, but were consequences of his medical illness. Again, I don't fault the captain for being unable to diagnose the exact problem, or to be able to sort out whether it were psychiatric or medical (not that that should matter) but he knew that he had a crew member with a serious, worsening problem with a medical component to it. His failure to return to port, or to call the Coast Guard and ask for assistance with the medical emergency, were serious failures, and he is responsible for the consequences of these failures.

•	Next, during the final "confrontation", the captain appears to have treated the victim as though he were dealing with a mentally competent mutineer instead of a badly confused, seriously ill, crew-member. Threats don't de-escalate such situations. "Reasoning" doesn't resolve such situations. De-escalation, seeming (if deceptive) acquiescence, and a calming approach can work, or at least buy time. The captain's conduct worsened the situation

•	The failure to attempt the MOB rescue, and the other obviously deceptive measures that the captain took after the fact speak for themselves.

In sum--at least 3 major derelictions of a captain's duty, plus active deception afterwards. I won't be surprised if he is tried and convicted, and I'll have little sympathy for him.


----------



## john61ct

Amen and well stated.


----------



## Mikael

OldEagle said:


> Within 24 hrs, he was hallucinating (before the scopolamine).


In the original article he was hallucinating only after the scopolamine, but maybe this information is from some other source?


----------



## MarkofSeaLife

Mikael said:


> In the original article he was hallucinating only after the scopolamine, but maybe this information is from some other source?


This time line is going to be of vital interest in court.

As is the exact timings, delays or seconds between, every action at the time of the MOB.


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## miatapaul

Bottom line is the captain was attacked because he neglected his duty to get Pontious medical attention when he was sick. This was exacerbated by allowing non prescribed drugs be given to him. The attack was a result of his unwillingness to alter from his schedule. He obviously had resources that he could have used to save Pontious after he jumped into the water, such as at the minimum dropping the eperb in the water and to use the same long distance communications that he uses to contact the weather router the next day. Anyone focusing on the attack is being blind sided by a results of the negligence. I don't think Pontious can be held accountable for his actions after 4+ days of being prevented getting medical attention and being given un-prescribed drugs. He should have known better to get on the boat in the condition he was in, but the captain should have gotten him off the boat as soon as he saw that Pontious was not in a position to continue on the voyage.


----------



## OldEagle

> In the original article he was hallucinating only after the scopolamine, but maybe this information is from some other source?


You are correct; my mistake for which I apologize. I have no information from another source to the contrary.

That said, I stand by my basic analysis and conclusions: this was a very sick man whose behavior was an involuntary consequence of medical derangements, and who was abandoned to die.


----------



## RegisteredUser

All thats needed are media reports.
Supress the CG finding.
Its a done deal.
The Internet conviction rate is very high

Practice your hangman noose.
Im thinking dyneema without a cover....
Salem, Mass sounds good, maybe during Spring Break.
Good real life education for our kids


----------



## Minnewaska

This crowd sourced analysis has not come close to critical mass, yet. However, it's uncanny how these can and have derived the same conclusions, with sufficient input, as extensive CG investigations do. There was more public input from witnesses and professional captains on the Bounty sinking, back in the day. The general consensus proved nearly exactly correct in the CG report that took over a year to come out. I would not argue that one should be convicted by crowd sourced analysis, by any means. But there is serious social science analysis occurring right now over how powerful it can be. 

I'm certainly not saying that 100 posts and one media article are nearly enough. My first post acknowledged there is likely more to this than one media article reveals. Nevertheless, the discussion of dereliction of duty, based upon what's in that article, is appropriate in my book.

Ask yourself what you would do, if a stranger was hallucinating on your boat. Would you call anyone for advice, would you press on, would you just get upset with the passenger and abandon them?


----------



## Sailormon6

OldEagle said:


> That said, I stand by my basic analysis and conclusions: this was a very sick man whose behavior was an involuntary consequence of medical derangements, and who was abandoned to die.


This discussion is focused on claims that the captain was negligent in two respects. (1) negligence in failing to properly address the man's medical issues; (2) negligence in not retrieving the man after he went overboard.

You make a strong argument with regard to the first issue, but the captain won't be judged by a jury of medical doctors. He'll be judged by a jury of ordinary people who have themselves had to struggle with difficult decisions about when to call the doctor for a family member with a fever or kidney stones or vague chest pains. Those ordinary citizens can be expected to set a high standard for the line where criminal liability begins, because they will understand that one shouldn't be branded a criminal for a mere misjudgment. For this reason, I think the outcome of this case will be of great interest to every skipper who sails offshore and has a crew member become seasick.

Moreover, the account that is contained in the original news article contains this information: "David Pontious appeared to be experienced. A story published in October 2015 in the Beaufort Gazette said he attended seamanship school in Florida, taught sailing lessons out of San Francisco and was a U.S. Merchant Marine officer for a time. He was also a member of the Beaufort Yacht and Sailing Club, officiated races and had a day job in health care technology." He was a highly experienced sailor who was well aware that it would be a long trip with no access to health care. More than anyone else, he should have been aware of his own physical condition and he should not have boarded the boat. Did the captain discuss it with him? Did he assure the captain that "it's nothing," and that he "had some pills that will take care of it"?. Did his assurances cause the captain to defer to the man's own assessment? Were his periods of hallucination of brief duration with long periods of lucidity in between, during which he continued assuring the captain that he'd be ok?

Perhaps the truth is as simple and straightforward as you suggest, but I suspect the captain has an account that hasn't been heard yet. I suspect that, at trial, the defense will portray the man as the author of his own demise and portray the captain as a decent fellow who trusted the man's assurances too much.

With regard to the second issue, when the man attacked the captain and choked him, that constituted lethal force, and the captain had a right to use lethal force to defend himself. If he had a firearm, he could have shot the man to death to stop the lethal attack. The fact that the man was sick or deranged doesn't detract from the captain's right to defend his own life. As it happened, the captain didn't have to use lethal force. The man jumped overboard. If the prosecution suggests to the jurors that the captain should be subjected to criminal conviction and punishment for failing to pull the man from the water, I think it's entirely likely that the jurors will conclude that the captain had no obligation to bring the man back on board and give him a second chance to kill the captain and crew.

There are strongly held opinions by sailnetters on both sides of the issues, and I think it's likely that there will be a similar spread of opinions among members of the jury. This will not be a slam dunk case on either assertion of negligence' and a hung jury wouldn't be a surprise.

I think the captain's least defensible action is in his failure to promptly report the incident.


----------



## hpeer

I thought the USCG stopped listening to 2182 some years ago?

What is the officially recognized frequency to report a MOB by HF?


----------



## willyd

In addition to the erroneous or at least ambiguous idea that the captain didn't properly search for the body after he watched it sink, the idea that the captain is negligent for not providing medical assistance also bears examining. As another upstanding sailnet contributor has pointed out a couple of times, timing is critical, and from what I read in the article, the time between when Pontious gets aggressive and when he jumps over the side of the boat seems to be a matter of minutes (hours?), not days, as many on this thread depict it.

We don't know just how aware the captain was of his mental condition, since Pontious' strange remarks that hint at hallucination are reported by a crew member, Pepper, and he is also the one that talks about Pontious being out of shape, not Smith. Up to the point where Pontious gets aggressive and grabs the wheel, the article says "the crew assumed that Pontious was still sick and dehydrated, so they encouraged him to keep trying to eat and drink," and yet somehow the captain is guilty of negligence for perhaps also assuming this and not turning back to the US? If the captain's negligence in this regard was so evident, why aren't the crew quoted as saying they thought the captain should have done something earlier?



Minnewaska said:


> I take it you feel the need to defend this Captain to some degree.


 Should I take it you feel the need to attack this Captain to some degree?


----------



## Minnewaska

hpeer said:


> I thought the USCG stopped listening to 2182 some years ago?
> 
> What is the officially recognized frequency to report a MOB by HF?


4125, 6215, 8291, 12290

https://www.navcen.uscg.gov/?pageName=mtHighFrequency


----------



## Minnewaska

willyd said:


> .....Should I take it you feel the need to attack this Captain to some degree?


Sure. He lost a crew member on his watch. That's not in dispute, is it?


----------



## Minnewaska

willyd said:


> ..... the time between when Pontious gets aggressive and when he jumps over the side of the boat seems to be a matter of minutes (hours?), not days, as many on this thread depict it.......


I think you've misinterpreted. Many are referring to the signs of illness, perhaps mental illness, that manifested over the several days of the trip, prior to his reported jumping overboard.

From the OP article........



> Four days of increasingly erratic behavior





> At one point that afternoon, Pontious said to Pepper, "Do waves ever sound like voices to you?" Later in the night, Pontious disclosed to Pepper that he saw "black spots in the clouds."


 (^^this was day 2 on the water)



> The next day, Pontious' hallucinations seem to get stronger. He told the others that he heard voices in the boat's forecastle, where he had slept





> That evening, around 9 p.m., Pontious asked Pepper, who was manning the boat, where they were going. Pepper told him, "St. John," which confused him. Pontious said he didn't think he was on the same boat as when he left North Carolina.


The fatal event took place over night. This did not develop over a matter of minutes or hours. He had been hallucinating for a minimum of 24 hours, according the account of the crew in this article.


----------



## hpeer

Minnewaska said:


> 4125, 6215, 8291, 12290
> 
> https://www.navcen.uscg.gov/?pageName=mtHighFrequency


Thanks, that's interesting. I wonder why they dropped 2182 if they are keeping watch on other channels? it can't be a manpower cost issue.


----------



## hpeer

Minne,

I have no hope of changing your mind, you seem set on persecuting this captain. And I think that is what this is all about; vengeance, old school.

There is nothing that can be achieved in this process that will help the dead guy. The only thing this process will achieve is vengeance, revenge. There is no great learning moment here, no need to set a precedent for it is a unique and highly unusual occurrence. No one will be benefited except for the deceased family who apparently hold a deep grudge and want the Captain punished. 

I think it brings out a streak of sadism that desires to see someone suffer. Something awful occurred so society must find a scapegoat to crucify in order to heal the wound. But this wont heal anything, it is a mean and hollow action that can bring no good.


----------



## Minnewaska

hpeer said:


> Thanks, that's interesting. I wonder why they dropped 2182 if they are keeping watch on other channels? it can't be a manpower cost issue.


2 MHz frequencies are for shorter distances. Perhaps that has something to do with it.


----------



## Minnewaska

hpeer said:


> Minne,
> 
> I have no hope of changing your mind, you seem set on persecuting this captain. And I think that is what this is all about; vengeance, old school.......


If you read my first two posts here, you'll see I immediately acknowledged there is likely more we don't know and that I doubt he would do much time. I'm analyzing the dereliction issues, as they have been reported. I'm not trying to lynch him, that's for the courts to decide. I am, however, very critical of his behavior, as reported in every article I've read on the subject.


----------



## john61ct

Well the whole US "justice" and incarceration system is indeed barbaric, draconian, sadistic inhumane and just plain not fair. Why should this case be different?

The usual justification for Punishment for crimes is that enough publicity about an appropriately harsh penalty may raise greater awareness of a captain's duty of care, and save some future lives.


----------



## MarkofSeaLife

RegisteredUser said:


> All thats needed are media reports.
> Supress the CG finding.
> Its a done deal.
> The Internet conviction rate is very high
> 
> Practice your hangman noose.
> Im thinking dyneema without a cover....
> Salem, Mass sounds good, maybe during Spring Break.
> Good real life education for our kids


You are welcome to go and comment on a thread that interests you.


----------



## mstern

I've been in enough court rooms and prosecuted enough cases to never try and prejudge the outcome of any one case. And that's even after I've looked at every piece of paper and spoken to every witness myself for that case. You just never know how things will look in the cold light of a trial. Sure, I got better at it over the years, but I was still being surprised up until the end of my career as a prosecutor.

Here, we don't have the Coast Guard report (which concluded that the Captain shouldn't be charged), witness statements, the Captain's statement, or any police or other reports. All we have is one newspaper article to go on. I don't know about the rest of you, but I've seen many instances where reporters misstate or leave out crucial facts; even reporters without an ax to grind make mistakes like anyone else. As Minne has pointed out, there are some facts here that, if the whole truth, don't make it look good for the skipper. But I have no idea what the facts really are. 

It could be that the captain watched this poor guy lose his mind and wasn't willing to to head to port for him because he's just a hard-hearted, schedule-crazy sombitch. Seems unlikely to me; I don't know any one like that, nor have I ever met any one that depraved. It could also be that the captain was kept informed of the victim's condition by the crew, and they didn't give him much indication that anything was seriously wrong until it was too late. Maybe they couldn't make for port because while the weather was mild where they were, conditions were adverse between them and the closest harbor. Maybe he did think about going in and determined that the port they could make the quickest was their primary destination. I don't know. I wasn't there. I also doubt that we have heard the full story here, including the lack of a search and the failure to radio immediately. I'm not implying that the captain's actions were completely correct or even justifiable; just that I bet there is more to the story than we got from the one newspaper article.

Like some of you, I have lots of questions here (how do you hit your head on the "rail" as you go overboard?; what is in the Coast Guard report that exonerates the captain?); and while it may be fun to speculate, I'm not ready to hang this guy.


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## RegisteredUser

MarkofSeaLife said:


> You are welcome to go and comment on a thread that interests you.


I do find this interesting
A pyschiatric study...:


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## MarkofSeaLife

mstern said:


> I've been in enough court rooms and prosecuted enough cases to never try and prejudge the outcome of any one case. ... You just never know how things will look in the cold light of a trial.
> 
> conditions were adverse between them and the closest harbor.
> .... I bet there is more to the story than we got from the one newspaper article.


I thought we shot all the worlds lawyers??????

I think the US is probably similar to my country in that the jury member is "the reasonable man" or whatever nowadays and they say what a 'reasonable person' under the circumstances would have done.
It is excellent that the Reasonable Person would often do dissimilar to a lawyer! :grin :grin

Yes, we have only a few facts...

Heres an interesting on that hasnt come up yet but would mean a lot to a captain who has done many passages: 2 days on the course out toward 25E 65N puts you *400nms *off the coast of Georgia at the border of Florida

Each hour the skipper prevaricates he is 2 hours into deeper trouble. Think of that one!

I *know* the Jury will be correct... and it will be very interesting to see what they think/feel/adjudicate.


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## MarkofSeaLife

RegisteredUser said:


> I do find this interesting
> A pyschiatric study...:


I stopped reading after the third paragraph where it said "All Australians are sex maniacs and frequently indulge in..."

Disgusting.


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## tempest

Maybe it's been pointed out before, So, I apologize if this is redundant.

No one here commenting: locked this Captain up, and impounded his vessel. The U.S. Attorney's office in the Virgin Islands did that. They must think they have a case. They'll have to prove it, of course. 

If nothing else, this has been a cautionary tale with regard to taking on crew that you've never met for a strenuous voyage. And which Captains you decide to sail with. Perhaps obtaining some medical history, at least determine what medications people are on, need, and are bringing aboard. What to consider when medical emergencies occur. ( like calling it in, and getting it documented! ). Considering which port you decide to enter, when you lose a passenger. Among other things.


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## RegisteredUser

Follow the $s


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## Don L

MarkofSeaLife said:


> I stopped reading after the third paragraph where it said "All Australians are sex maniacs and frequently indulge in..."
> 
> Disgusting.


after the thread where I learned Aussies look up Wombats asses I'm scared about what they find disgusting, now even more so


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## RegisteredUser

The Wombat wasnt a bad moto in its day.


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## Minnesail

So if you were many miles offshore and had a crew that was starting to hallucinate and showed signs of deteriorating health, what is the proper course of action?

Would you radio the Coast Guard to just he keep them apprised of the situation?

It seems like it would have saved this skipper a world of hurt if there was something on record that he was taking actions on the situation.


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## paulk

Calling over the VHF to advise land-based USCG of anything when you're more than 50 miles out is not likely useful. A pro-forma search would have been better, even if unproductive.


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## jtsailjt

paulk said:


> Calling over the VHF to advise land-based USCG of anything when you're more than 50 miles out is not likely useful. A pro-forma search would have been better, even if unproductive.


I think you're right about this. While the relationship between crew members was clearly strained before he jumped overboard and the jury may find the captain should have handled it differently before the confrontation and jump overboard occurred, not as much would be made of that if captain and crew reported that right after the jump they immediately turned around and spent the next several hours searching for him while attempting to contact other nearby vessels or the CG on VHF or HF.

We can all sympathize with a situation where a crew member gets sick and we hope he'll get better soon so press on longer than we probably should have but he gets worse instead of better so it gradually snowballs into a bigger problem than we ever imagined it could. But I think it's going to be really hard for a jury to get by the captain continuing to sail on as if nothing happened after the MOB occurred. Even if he strongly disliked the crewmember for good reasons and sincerely thought there was zero chance of recovering him, he should have at least made an effort to search and in the existing sea conditions there was no reason not to.


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## SeaStar58

Minnesail said:


> So if you were many miles offshore and had a crew that was starting to hallucinate and showed signs of deteriorating health, what is the proper course of action?
> 
> Would you radio the Coast Guard to just he keep them apprised of the situation?
> 
> It seems like it would have saved this skipper a world of hurt if there was something on record that he was taking actions on the situation.


From the latest NewReader blurb that appears to be part of the prosecutions main points that from day 1 this Captain with many years experience did very little to nothing to prevent the situation from escalating not even making a call to seek advice from the Coast Guard and seemed more concerned about not deviating from his schedule than he was about the life of a very ill person he had on board.

What happened after things got out of hand is a secondary consideration since the sick person should already have been long off the boat receiving the medical attention he so badly needed.

Too many still are only focusing on what happened after the Captain allowed things to get out of hand and had already made a number of errors. This was on a 43 foot yawl with only a handful of people on board and not some large cruise ship with too many thousands of people on it making it difficult for the Captain to stay aware of the situation.

In case we missed it:
https://www.pressherald.com/2018/12/19/prosecution-lays-out-case-against-camden-sailboat-captain-charged-in-2015-death/


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## Minnewaska

Based on what’s been reported, I can see a prosecutor developing a concern that is guy should not continue to be allowed responsibility for others lives at sea. They may not even be motivated for incarceration, but would certainly be threatening. 

It’s still perplexing how the USCG seemed to have felt differently. I know, in aviation, all NTSB investigations are made public. They can actually be very educational, in some case. If only to reinforce awareness of failures scenarios. Is there an equivalent in the USCG?


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## hasher

The Grand Jury is going to charge him. 


The grand jury would indict a ham sandwich. Speaking as one who has lead grand juries, hopefully to a proper place.


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## MarkofSeaLife

A coupla interesting points from the latest artkcke:

1) we have covered all the points in this thread... So to the internet forum naysayers, we have done a good job!

2) the charges are under US Federal law as opposed to anything USVI

3) Max sentence 10 years. He won't get anything like that but it may well be more than a slap on the wrist.

https://www.journaltribune.com/arti...amden-sailboat-captain-charged-in-2015-death/


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## SeaStar58

Minnewaska said:


> Based on what's been reported, I can see a prosecutor developing a concern that is guy should not continue to be allowed responsibility for others lives at sea. They may not even be motivated for incarceration, but would certainly be threatening.
> 
> It's still perplexing how the USCG seemed to have felt differently. I know, in aviation, all NTSB investigations are made public. They can actually be very educational, in some case. If only to reinforce awareness of failures scenarios. Is there an equivalent in the USCG?


On a cruise ship even if the man was belligerent the Captain could be facing this type of action and loss of his Captains Papers for not making some basic search after the fact and though it would have been on the ships Doctor to manage the health issues of at risk passengers prior to the incident, if that Doctor aboard ship allowed a persons situation to deteriorate to the point that they began threatening people and ultimately jumped overboard then the Captain would still be responsible.

So yes they may simply be wanting to get that Captains papers pulled so he won't be able to take on any more charters. The Captain himself is at an age where mental health issues could be hampering his ability to make sound decisions so who knows if he has the onset of Alzheimer's or another age related issue effecting judgment so that too would need to be reviewed to determine if he still should maintain his Captains Papers. I know that if I ran the company that took him on for this particular charter I would think twice before hiring him on again even if he did manage to come out of this with just a financial penalty without loosing his Captains Papers.


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## MarkofSeaLife

Also

4) Expert says Captain didnt contact Chris Parker for 32 hours... I thought the contact was the morning after the incident? But appears to be 32 hours later....


Hmmmmmmm


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## MarkofSeaLife

SeaStar58 said:


> So yes they may simply be wanting to get that Captains papers pulled so he won't be able to take on any more charters.


Thats the least of this Captains worries now.

10 years in the slammer.

Thats all he will be thinking about now.


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## tempest

Just a small point. I don't believe that he was operating under his CG license authority. He was moving his boat to the VI with the help of volunteer crew it appears. So, although he had some level of CG License. He was a private citizen at this point.

It may explain why the CG may have passed it along to the civilian authorities, or they ( the civilian prosecutors) picked it up. I'm sure the family plead to have it examined further.


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## Sailormon6

paulk said:


> Calling over the VHF to advise land-based USCG of anything when you're more than 50 miles out is not likely useful. A pro-forma search would have been better, even if unproductive.


The problem then is, what do you do if you find him and he's still in a murderous frame of mind? Do you bring him aboard knowing that the two men and woman have already seen that they aren't able to subdue him? Even if you sail in whatever direction he demands (which might not be towards any destination. Remember, he just wants to go left, "towards that cloud."), his disposition isn't likely to improve. How do you keep him from choking you to death? How do you sleep? This isn't a typical "man overboard." It's a "homicidal maniac overboard." The guy just tried to choke you to death. Bringing such a person on board a small boat creates obvious practical concerns. How do you deal with those practical concerns and preserve the lives of yourself and crew?


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## mbianka

I see that one of the witnesses for the prosecutors is Mario Vittone. A former Coast Guard rescue swimmer and now marine safety expert. His testimony on the Captain's lack of attempt to rescue the fellow should be very interesting to hear.


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## Minnesail

mbianka said:


> I see that one of the witnesses for the prosecutors is Mario Vittone. A former Coast Guard rescue swimmer and now marine safety expert. His testimony on the Captain's lack of attempt to rescue the fellow should be very interesting to hear.


Oh wow, he's cool.

I have printouts of his pre-sail briefing and his checklist sitting right here on my desk.

I gotta, say... I'd love to sail on his boat, I'd hate to have him judging the way I sail!


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## jtsailjt

Sailormon6 said:


> The problem then is, what do you do if you find him and he's still in a murderous frame of mind? Do you bring him aboard knowing that the two men and woman have already seen that they aren't able to subdue him? Even if you sail in whatever direction he demands (which might not be towards any destination. Remember, he just wants to go left, "towards that cloud."), his disposition isn't likely to improve. How do you keep him from choking you to death? How do you sleep? This isn't a typical "man overboard." It's a "homicidal maniac overboard." The guy just tried to choke you to death. Bringing such a person on board a small boat creates obvious practical concerns. How do you deal with those practical concerns and preserve the lives of yourself and crew?


You're right that it is more than a run of the mill MOB situation and if he were brought back onto the boat you'd have to deal with his issues again. But, by the time he got back aboard he'd undoubtedly be exhausted and weak so could more easily be subdued and handcuffed with the biggest zip ties aboard with his arms wrapped around the mast (or some other substantial boat part), so when he regained his strength he wouldn't be going anywhere and you could get him and your crew ashore in safety. It would definitely be a challenge but I think that all 3 crewmembers owed it to him to at least try.


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## bshock

If it weren't for this being a real and tragic part of people's lives, a variation of these events would make an amazing movie. Sadly because of the death involved, I personally would not have any interest in a Hollywood version of these events. 

I find it fascinating reading everyone's comments and analyses, so thank you to those who have contributed positively to this thread.


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## SeaStar58

Sailormon6 said:


> The problem then is, what do you do if you find him and he's still in a murderous frame of mind? Do you bring him aboard knowing that the two men and woman have already seen that they aren't able to subdue him? Even if you sail in whatever direction he demands (which might not be towards any destination. Remember, he just wants to go left, "towards that cloud."), his disposition isn't likely to improve. How do you keep him from choking you to death? How do you sleep? This isn't a typical "man overboard." It's a "homicidal maniac overboard." The guy just tried to choke you to death. Bringing such a person on board a small boat creates obvious practical concerns. How do you deal with those practical concerns and preserve the lives of yourself and crew?


The problem is what happened in the days before this that were fully in the Captains control starting from before the point where they got past the breakwater when leaving port which he took no appropriate action on. The Captain had a lot of time to resolve this before the man went suicidal and appears to have done more to make things worse than make it better. The victim would not be able to jump overboard if he had already been strapped into a hospital bed for several days however that would have required the Captain to interrupt his schedule to deliver the boat and head to the nearest port which at that time was on the US East Coast. Nor could the victim strangle or choke anyone on that boat from a bed in a hospital hundreds of miles away.

It was a sick man brought on board and made to suffer for days and denied the proper medical care that he desperately needed because it was inconvenient to the Captain that will likely undergo a lot of scrutiny in the trial. The failure to rescue the man from jumping overboard afterwards is a secondary issue to potentially days spent driving or allowing a sick man to be driven to jump overboard.


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## RegisteredUser

So many assumptions.
Truly...a crock.

Sad to see


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## MarkofSeaLife

RegisteredUser said:


> So many assumptions.
> Truly...a crock.
> 
> Sad to see


Poor kitten.
Maybe Christmas will cheer you up.

:crying


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## tempest

RegisteredUser said:


> So many assumptions.
> Truly...a crock.
> 
> Sad to see


Avert your Eyes ;-)


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## Minnesail

We certainly don't know all the facts and likely never will.

But we are not trying or sentencing the man, we're just talking on the internet. If we were only allowed to talk about topics that we had full and complete knowledge of, we would never be able to talk about anything.


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## RegisteredUser

Its a reality show on this forum, without facts being sought.
Its an emotional display...of you yourself.

A tad different than rigging tension, batteries, pressure cookers, weather reading, etc...eh

Im just surprised by this...display.
Im unprepared for the real world...


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## Minnesail

RegisteredUser said:


> A tad different than rigging tension, batteries, pressure cookers, weather reading, etc...eh


Are you talking a production pressure cooker, or a bluewater pressure cooker?


----------



## Minnewaska

Sailormon6 said:


> The problem then is, what do you do if you find him and he's still in a murderous frame of mind?......


Throw the victim some flotation, attached to a line. Wait till he's worn out. There is no way a jury is going to believe no attempt was justified.


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## SeaStar58

RegisteredUser said:


> So many assumptions.
> Truly...a crock.
> 
> Sad to see


Please go back and read the various quotations from the other crew members on board about the condition of the man who was supposed to be there as a working crew member to assist in delivering the boat yet no longer able to even put his shoes on before they left the dock and was noted as having problems before they even left the harbor. Quotations from those who where there on board about how early on he and the Captain were having issues, etc along with what appeared to be conflicting statements from some of them indicating that there was more going on there then they were really telling. Lets face it conflicting statements are one of the factors investigators look at to determine whether they need to do more digging while too much exact word for word harmony in their statements would be another warning bell indicating a rehearsed coverup. There should be some variations among their statements based on vantage point, personal background and experience however not out an out conflicts.

From the statements coming from those crewing the boat the man was is such poor health when he arrived at the dock that most here would have questioned taking him on as a passenger for a few hours day sail (I am presuming/hoping most here would have had second thoughts) never mind as a working member of a small crew to deliver a forty something foot sailboat on a passage that was expected to take over a week.

They left a North Atlantic State on the Eastern Seaboard of the USA and did not get close to the Virgin Islands where this situation that had been allowed to escalate for so long coming to such a level of severity that the man became so delusional/agitated that he jumped off the boat to get away from the Captain, in a few minutes or hours... this took a number of days so its no assumption that the Captain had ample opportunity to put to the nearest port in those days instead of staying on his delivery schedule and pulling farther and farther away from those ports where the man could have been put into the hands of those with the expertise to help/care for him. The prosecution from what statements they have made indicate that this is one of their points of contention along with both of their experts.

People keep looking at the final part of the account focusing on a violent man jumping overboard without looking at what transpired over the course of those days starting at the dock before the boat even cast off.

No assumptions need to be made on these points as there has already been sufficient information coming from the people that were actually there on the boat to understand that this needs further investigation and that the Captain is not free of blame here and may be the one most culpable for the man eventually become so ill/distressed that he jumped over the side. Definitely there is no question or assumption that the Captain is the most culpable for what transpired afterwards when they appear to have just written the guy off and sailed away from the MOB, etc.

It will be interesting to see if under oath the testimony of those present on the boat starts to better align when asked about the conflicts showing that some may not have been as forthcoming and honest as they could have been about what transpired on that relatively small boat.


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## davidpm

RegisteredUser said:


> Its a reality show on this forum, without facts being sought.
> Its an emotional display...of you yourself.
> 
> A tad different than rigging tension, batteries, pressure cookers, weather reading, etc...eh
> 
> Im just surprised by this...display.
> Im unprepared for the real world...


For sure.

But still useful to me anyway. It makes me think thorough what I would do in in an imaginary but similer situation.

On of the ASA questions on the test I give students is "What is your first action if your head-sail snaps?"

It gets folks thinking about what can happen what to do if it does.

The possibility of a person having hallucinations from scop and stepping off the boat never occurred to me. Now I have a plan.

So for me it is not about the reported captains guilt or innocence it is about something unanticipated that could happen to me.


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## jtsailjt

SeaStar58 said:


> People keep looking at the final part of the account focusing on a violent man jumping overboard without looking at what transpired over the course of those days starting at the dock before the boat even cast off.
> 
> No assumptions need to be made on these points as there has already been sufficient information coming from the people that were actually there on the boat to understand that this needs further investigation and that the Captain is not free of blame here and may be the one most culpable for the man eventually become so ill/distressed that he jumped over the side. Definitely there is no question or assumption that the Captain is the most culpable for what transpired afterwards when they appear to have just written the guy off and sailed away from the MOB, etc.
> 
> It will be interesting to see if under oath the testimony of those present on the boat starts to better align when asked about the conflicts showing that some may not have been as forthcoming and honest as they could have been about what transpired on that relatively small boat.


People keep focusing on the final part when he jumped and they sailed away without attempting rescue because that's the most dramatic and clearcut part of this story. Disagreements among crewmembers are subject to interpretation so it's a bit harder to point fingers of blame at this point. As you say, once all parties involved are questioned in court under oath we may know more about the details of exactly what went on and the guilty party or innocent party is will become more clear. Also, the details of his medical condition and the side effects of the drugs he was taking may not have been known to the Captain. As for being seasick very early in the voyage and that being a reason to turn around, I know a multi-circumnavigator who writes books about sailing and for Cruising World, and he gets seasick almost every time they set out on a crossing so his wife has to effectively singlehand for the first couple of days and then he's fine. I'm not arguing that the Captain and others shouldn't have handled the early part of the voyage differently, just that it's not quite as clear cut as is where the fault lies as during the part of the voyage where the Captain made the decision to sail away from the location of a MOB off his vessel without even trying to search.


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## Minnewaska

I found a database of USCG incident reports. It's searchable, but I could not find this one. I checked Oct 2015 and looked at all the recreational and uninspected passenger vessel reports and none looked like this one. I also searched the past five years, for the vessel name, with no hits.

https://cgmix.uscg.mil/IIR/IIRSearch.aspx

I wonder if the USCG did a full investigation at the time. The articles say they attempted an airborne search, so one would think they would. I'm not sure what triggers an investigation for an incident in international waters.

Although, think about this for a second. The USCG launches an aircraft that costs ten grand an hour to operate to give the MOB a chance more than a day after he goes overboard. But the vessel itself is reported to not have turned around at the time.

This has to be the crux of the matter. Whether he was operating as a commercial passage at the time, is moot. I bet a prosecutor questions whether his is fit to have paying passengers, with the reported temperament and decision making. Criminal behavior, outside the exercise of one's professional license, can still be used to disqualify them for that license. This is the case for a pilots license, commercial drivers license and I'm sure for a Captain's license.


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## Minnewaska

I'll add this, for those concerned this is a lynch mob. I truly hope all that we've read is inaccurate and this guy didn't do any of these things. That is for the courts to sort out.


----------



## Minnesail

On the other hand, it also possible that things were much worse than what we've read! Maybe this an extremely poorly planned murder cover-up. (I do not actually think this, I'm just being contrary.)

There's a Jeanneau 49 that I've chartered several times that has a giant sail locker on the bow, big enough that it needs a ladder. Since it locks from the outside we always jokingly refer to it as "the brig" and it's sort of a running joke to try to get the new person to go down into it. Like, "Hey, could you go up to the locker on the bow and get that spare case of beer?" <snicker, snicker>

Never thought there'd be a situation where you'd actually want a lockable person-sized locker.


----------



## Don L

Minnesail said:


> Never thought there'd be a situation where you'd actually want a lockable person-sized locker.


Probably don't need to sacrifice a beer storage locker. Bet every real cruising boat carries a roll or 2 of duct tape. :wink


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## hpeer

The USCG launches based on some predetermined criteria. It is most often they don’t have in mind a clear idea what is going on. 

I’ve seen this myself through various angles. They don’t know the facts, they are in no position to be judges, they do what feels right. MOB = LAUNCH. 

Where they DID make a judement was in their investigation where they did not recommend prosecution.


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## caberg

jtsailjt said:


> People keep focusing on the final part when he jumped and they sailed away without attempting rescue because that's the most dramatic and clearcut part of this story.


Yea but did the failure to attempt rescue _cause_ the guy's death? Or did he guy seal his own fate when he took the leap? I think this may be a problem in a prosecution for manslaughter. For sure, the post-jump facts help paint a picture of a negligent uncaring captain, but the prosecutor needs to prove a sufficient causal relationship between the negligent conduct and the death. I think that's where the expert testimony will come into play. How many MOBs who voluntarily jump overboard while offshore and underway, are actually recovered? For this reason, I'm thinking that the pre-jump negligence in the days leading up to the incident may be more of the focus, when you can point to the things that the captain could and should have done to avoid the situation devolving to where it did.


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## john61ct

I believe that was their point, and I agree.


----------



## Minnewaska

hpeer said:


> ....Where they DID make a judement was in their investigation where they did not recommend prosecution.


You would think there would be an incident report that detailed this conclusion. There is a big difference between, we looked for the MOB and didn't pursue it further and we conducted a full investigation and found nothing culpable. I'd like to see a source document and I'm curious as to why there isn't one in their searchable database. Was it really an investigation, for example. I'm more curious in the process than the conclusion.


----------



## Minnewaska

caberg said:


> .......the prosecutor needs to prove a sufficient causal relationship between the negligent conduct and the death. ......


From the statute........



> Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed {extraneous removed}...shall be fined under this title or imprisoned not more than ten years, or both.


Some interesting takeaways. This is not the same as dirt based manslaughter, which requires a higher standard of negligence or passion. This statute simply requires inattention to duties. Further, it does not require gross negligence. Someone can be simply negligent fairly easily.

It's also interesting that it is not limited to the Captain and encompasses "other person". Of course, this other person would require having duties in the first place, before they could be inattentive.


----------



## mbianka

Minnewaska said:


> From the statute........
> 
> Some interesting takeaways. This is not the same as dirt based manslaughter, which requires a higher standard of negligence or passion. This statute simply requires inattention to duties. Further, it does not require gross negligence. Someone can be simply negligent fairly easily.
> 
> It's also interesting that it is not limited to the Captain and encompasses "other person". Of course, this other person would require having duties in the first place, before they could be inattentive.


I remember the Captain on a charter boat we took a day sail on years ago who warned the passengers to hold on to their hats with this edict: "We will go back for you but, we don't go back for hats."

Speaking of "inattention to duties." I think Smith is going to have a hard time explaining this action of his the following day:
_"The Coast Guard dispatched a crew to the area, including a C-130, a massive plane used for surveillance.

The plane flew over the Cimarron on the afternoon of Oct. 26. When it departed, Pepper said Smith threw a life ring into the water and then said, "Well if they ask if I threw over a life ring, I guess I could say I did."_


----------



## Minnewaska

mbianka said:


> ....Pepper said Smith threw a life ring into the water and then said, "Well if they ask if I threw over a life ring, I guess I could say I did."[/I]


If that is indeeed the way it went down, he really should not be allowed to keep his license. It's depraved indifference. In other words, his indifference to a life resulted in a death, even if he did not intend to kill. Still a crime. Based on media accounts, that is the problem here.


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## john61ct

Exactly.


----------



## Don L

Minnewaska said:


> If that is indeeed the way it went down, he really should not be allowed to keep his license. It's depraved indifference. In other words, his indifference to a life resulted in a death, even if he did not intend to kill. Still a crime. Based on media accounts, that is the problem here.


Guess it's how you are wired and look at it. If someone had been a danger on the boat for days, and had just been chocking me to the point of having to be pulled off and then yelled some crazy **** and jumped overboard; I would be pretty indifferent to trying to bring them back onto my boat. I don't feel that makes me "depraved" I think it makes a survivor.


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## john61ct

Yes but captain of a boat has a higher legal standard for duty of care. Just like management in an educational or medical facility.

Your personal self interest is somewhat subordinated to that obligation.


----------



## RegisteredUser

john61ct said:


> Yes but captain of a boat has a higher legal standard for duty of care. Just like management in an educational or medical facility.
> 
> Your personal self interest is somewhat subordinated to that obligation.


Take a rake and spread that around in the garden, ok....

Jeez man


----------



## boatsurgeon

Don0190 said:


> Guess it's how you are wired and look at it. If someone had been a danger on the boat for days, and had just been chocking me to the point of having to be pulled off and then yelled some crazy **** and jumped overboard; I would be pretty indifferent to trying to bring them back onto my boat. I don't feel that makes me "depraved" I think it makes a survivor.


The trouble here is, while the crew may have been in potential danger having the guy aboard, the guy was in clear and eminent danger the instant he went overboard.

At the very least, the skipper should have immediately attempted MOB recovery, and reasonably determined that MOB recovery would be difficult and possibly unlikely (if the MOB still did not wish to be recovered) and a MayDay call / EPIRB deployment should have been made immediately.

Every effort should have been made to recover the MOB.

For all we know, the MOB had severe regrets before they even hit the water, and would be the poster child of crew after recovery.

Anything less than desperate attempt to recover, would be akin to suggesting a person should not make effort to save anyone suicidal.

Sometimes, we have to turn down the narcissism, and put another persons more dire needs ahead of our own less dire needs.

The guy, regardless how upsetting his behaviour was, obviously needed help, and didn't receive it.

If they tried desperately to recover him and failed, or recovered him and confined to quarters, binding if necessary, the skipper would not be culpable.


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## john61ct

RegisteredUser said:


> Take a rake and spread that around in the garden, ok....


I did say legal standard, and that is objectively true.

Your own personal moral standards, if any, really do not come into it.

When a judge and / or jury are considering negligence, what would / should a "reasonable person" do, their standard is considerably higher than what many are implying here.

Which is why cases such as these need fresh examples to be made to encourage socially desirable behaviour by members of the community.


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## caberg

Minnewaska said:


> From the statute........
> 
> Some interesting takeaways. This is not the same as dirt based manslaughter, which requires a higher standard of negligence or passion. This statute simply requires inattention to duties. Further, it does not require gross negligence. Someone can be simply negligent fairly easily.
> 
> It's also interesting that it is not limited to the Captain and encompasses "other person". Of course, this other person would require having duties in the first place, before they could be inattentive.


Again, focused on the conduct. There needs to be a causal relationship between the negligent conduct and the death. Separate issues. If a motor vehicle passenger jumps out of a car with a drunk driver behind the wheel on the interstate, the drunk driver may be only guilty of DUI.


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## Don L

john61ct said:


> Yes but captain of a boat has a higher legal standard for duty of care. .


Well I was in the real Navy. The Captain's true responsibility was to the ship.


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## Don L

If I had been captain and this guy attacked me and was choking me, as the crew was dragging him off I would have picked up a winch handle and hit right in the head! If he lived it would be duct tape mummy wrap, if not it would be over the side with the dangerous skin bag.

I feel this would have been extremely reasonable in this case.


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## outbound

Limited information but would offer the following 
1. He was on unknown medications prior to boarding. He was seasick for the prior two days and therefore possibly given anticholinergic meds (scopolamine) or anti histaminics( Bonine, stergeron,etc.). Question is was he psychotic due to med side effects or drug interaction? Is captain at fault for not thinking of this?for not reviewing meds before victim boarded.? For not getting outside advice about possible issues of drug interactions or sides effects if had he no training or understanding?
2. It’s stated vessel did not have capability for long distance communication. Is captain at fault for having neither sat phone or SSB? Not even renting one? Did not have or deploy a Spot, In Reach or Epirb? 
3. What licensure did captain have? Depending on country and level basic medical training maybe required. Any additional training? RYA? If required is captain is violation of stated protocols and therefore liable?
4. Is a separate wrongful death civil suit underway? Is captain without assets and therefore judgment proof? Did contract occur privately or through an agency? Given possible exposure to tort was “experts” hired by captain or agency?
5. Would note in most fields “experts” who receive more than 10% of their total income from generating opinions or from court appearances are highly suspect. What is the background of the “experts”?
6. What is the culpability of the victim? Was there anything germane he didn’t share with the captain about his background? What obligation did the victim have to ascertain the vessel was properly equipped and the captain core competence?
From the little information available it is within the ream of possibility captain was criminally negligent. Had no business taking a vessel offshore without adequate communications +/or mechanism to request aid or judgment to request aid. Again from the limited information available it is possible he is also exposed to a,civil judgment against him and any agagency that was involved and it’s here the real punishment will occur to the employing agency. 
Seems reasonable to be concerned victim didn’t adequately vet captain nor vessel and captain didn’t adequately vet crew.


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## RegisteredUser

When you saw the croc take the baby impala at the river crossing during migration, did you blame the mommy impala, the daddy implala, the baby impala, the croc or something else?
Did you feel sad or did you smile?
Did you receive prior training and instruction as to how you should feel?

Sometimes its just not in the book, right....
Sht still happens

You werent there. None of us were there.
But this sick game is played.

Go help an old lady cross the street, or change your engine oil...something real


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## MarkofSeaLife

outbound said:


> 2. It's stated vessel did not have capability for long distance communication. Is captain at fault for having neither sat phone or SSB? Not even renting one? Did not have or deploy a Spot, In Reach or Epirb?
> .


Yes the had SSB HF Radio. 
They spoke to Chris Parker 32 hours later. They did not do that with 2 jam tins connected by string.

But the point you raise and is raised by the investigation that the captain should have good long range communications is a good one. 
I get the feeling that SSB is not going to be deemed good enough any more and all boats should have more instant, direct emergency coms. Text or voice.

It's going to be a very interesting case indeed.

Oh, and 1 other point from other posts: if 3 people were fearful of their lives for a number of days and the Captain did nothing... But then suddenly the aggressive person dies, I would think that, alone, would tickle the interest of a homicide detective. 
It doesn't "feel" like it in this case, but perhaps the 3 are gunna get one hell of a grilling come court day.

I wonder what the water temperature was where the incident happened? 
If water temp is above 60F survival time can be 40 hours. 
Above 70F survival time can be INDEFINATE 
We know the sea was calm, wind 5 knots. A swimmer could be flopping around for quite a few days.

https://useakayak.org/references/hypothermia_table.html


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## john61ct

And again.

The negligence that **contributed to** the incident

is all one needs to analyse.

The actions afterwards simply shed further light on the skipper's sociopathic attitude, which it seems are shared by many.

That negligence was in **not** performing as a reasonable responsible captain should, including first accepting the invalid as a crew member, 

then not heading back when his conditions worsened / became more obvious, failing to make contact for at least advice, 

again not heading back to shore when things got a lot worse, continuing to not turn back again later, 

failing to work out with the other crew how to restrain the guy as he further deteriorated, etc etc.

He does not need to be shown to have "caused" him to jump, his negligence was in not taking reasonable steps to **prevent the situation from escalating**, as is clearly any captain's responsibility.


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## Minnewaska

caberg said:


> Again, focused on the conduct. There needs to be a causal relationship between the negligent conduct and the death. Separate issues. If a motor vehicle passenger jumps out of a car with a drunk driver behind the wheel on the interstate, the drunk driver may be only guilty of DUI.


You're focused on negligence, which may not be the issue. The statute calls out inattention to duties, separately from negligence. I think (know) you have a duty to attempt a MOB recovery.


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## OldEagle

> I wonder what the water temperature was where the incident happened?
> If water temp is above 60F survival time can be 40 hours.
> Above 70F survival time can be INDEFINATE
> We know the sea was calm, wind 5 knots. A swimmer could be flopping around for quite a few days.


Water temperatures in that part of the Atlantic in late Oct run in the high 60 deg F to low 70 deg F range. However, you must be careful about interpreting these "survival time" tables that you see associated with water immersion. These typically are based on time to death from hypothermia. In reality, an immersed person, not dressed for immersion (i.e., no wetsuit or drysuit), and without flotation, will die much faster. They will suffer "swimming failure" due to cold-induced loss of function in arms and legs, then drown. This will happen well before core hypothermia kills them. Even in waters of temperatures high 60's deg F to low 70's deg F this will happen a lot faster than you might think--possibly over a few hrs or less, depending on the individual.

The victim here appears to have been seriously ill and delirious. Even if he weren't injured going overboard, he would have been rapidly incapacitated in the water. The idea that he would have been a threat to the crew if they had managed to recover him after even a few minutes seems almost certainly incorrect, and is not a justification for having not attempted to retrieve him.

The crew's real problem, if they had managed to find him and try to retrieve him, would have been his inability to assist with his own rescue. Getting him back aboard would have been very difficult.


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## OldEagle

In case the concept of "swimming failure" is unfamiliar, and my comments above seem overstated, see this:
http:// https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1982576/pdf/brmedj02020-0050.pdf

For ease of conversion if reviewing this study, 
4.7 deg C = 40.5 deg F; 
23.7 deg C= 74.6 F


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## outbound

OE is of course correct. One must also consider the absence of a spray hood and therefore increased likelihood of aspiration of salt water. This invokes the gag and coughing reflexes leading to faster exhaustion or if enough aspiration occurs death from that cause directly.
It continues to surprise me how many people will spend hundreds of dollars on the fanciest PDFs and beacons of various sorts but neglect a $20 spray hood. Still I continue to believe if you fall off a boat on passage you are dead. Other than a harness and tether the rest of the stuff just means there will be a body to bury.


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## MarkofSeaLife

OldEagle said:


> The victim here appears to have been seriously ill and delirious. Even if he weren't injured going overboard, he would have been rapidly incapacitated in the water. The idea that he would have been a threat to the crew if they had managed to recover him after even a few minutes seems almost certainly incorrect, and is not a justification for having not attempted to retrieve him.
> 
> The crew's real problem, if they had managed to find him and try to retrieve him, would have been his inability to assist with his own rescue. Getting him back aboard would have been very difficult.


Firstly: Thank you for posting scientific research. usually the internet is full of BS!

The temperatures, though, might be much higher than in the research.
inside or to the east of the Gulf Stream is much warmer. The GS up to 28 degree Celcius. Outisde, to the east, it depends on how far south.

How long until one "knows" the survivors will have died?
Last week the US Navy searched for the KC130 crew for nearly a fell WEEK before they called off the search. And that was cold water.

I maintain we do the same. If a week is good enough for military personnel its good enough for civilians.

Stuff it, I would stay on station till the USCG arrives.

And thats what a reasonable person would likely agree.

on another theme: I note some people think this is a Before the Suicide and others think its an After the suicide. I think its both.
Theres a possibility of culpability (or dereliction of duty) both before and after.


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## tempest

Bad things often happen after a "series" of bad decisions. 

I suspect there was a deadline involved in this delivery. Perhaps bookings south for his charter service and a loss of income for delays. 

Then, In this case. Taking on an unknown crew member, not properly vetted.
Observing that his feet are so swollen that he can't fit in his shoes. Not questioning his fitness for sea. 
Once he got sick not turning for the nearest port, providing a medication, Once he got delirious not turning for the nearest port, Not calling the Coast Guard or even trying to see if an Amver vessel was in the vicinity with proper medical assistance available. ( he had an SSB) All those questionable decisions led up to the outcome of a confrontation and the man jumping overboard. The actions afterward certainly will not go favorably for him. Had he stayed on station, made even an attempt at recovery, contacted the coast guard all the previous questionable judgments may be overlooked. Then, his tossing a life ring overboard the following day, tossing the pot and a gun and waiting 42 hours to call Chris Parker, only paint a picture of someone who knew all the right things to do, but didn't do them. He has some detailed explaining to do, as do the other two passengers.


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## Peter Janker

It may depend on what the Captain believed at the time of the incident and if the remaining crew’s testimony is consistent and supporting.

- man went crazy and process was unexpected by crew
- man jumped overboard and while doing so hit his head
- man was observed to immediately sink and never made an attempt to swim
- area of incident kept under observation and no further sighting of the man occurred

Bottom line is if captain and crew all felt that they witnessed the man die at the point he jumped overboard then I believe no crime occurred. If someone on the crew felt that the man was alive, did they alert anyone of their feeling? If they felt there was a possibility and did not immediately alert the rest of the crew then they are partly to blame. If they did alert the crew but no one took action then captain hangs.

V/r

Pete


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## MarkofSeaLife

Peter Janker said:


> - area of incident kept under observation and no further sighting of the man occurred


I havent seen that mentioned at all. They mentioned they didnt stop, didnt go back. so how could they have kept the area under observation?

Mark


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## outbound

One would think liability occurred prior to his jumping off the boat. Actions after that just compound it. 
Like many who take on crew for passage with any regularity I’ve had occasion to take people off watch or not permit them to stand watch alone. In a few very rare occasions (2) over 35 years have restricted them to no deck access either due to concern over their personal safety or the boats. 
The old saying for captains is:
Keep the water outside the boat.
The boat moving toward the destination.
Don’t break anything.
and END UP WITH AS MANY AS YOU STARTED WITH.
This captain didn’t do that. From what’s posted here it seems he wasn’t thoughtful as to why the situation occurred. What he could do to mitigate it or totally reverse it. What he could do to prevent bodily harm to that crew.
Once when I was crew on someone’s else’s boat due to a broken through hull we were taking on water. Captain cold cocked crew (his brother) and duck taped him in a sleeping bag as that person was doing nothing but yelling “we’re going to die, we’re going to die “. There are ways to restrain a crew without significant injury to that crew. There are ways to get outside advice if you don’t know what to do. There are ways to talk down an agitated person and de escalate a situation. There are ways to examine a situation and understand its cause and how to best manage it. From the little hard information available it sounds like this captain failed to do this. The jumping off the boat was the culmination of all these failures. Actions afterwards were the icing but not the cake.


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## OldEagle

Outbound, I agree with everything in your post above except the last line: 


> Actions afterwards were the icing but not the cake


I think a captain standing in his cockpit, watching a crew member go overboard in the middle of the ocean, and sailing away like nothing happened, is more than "icing on the cake".


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## Peter Janker

Mark

Just had a guy jump overboard. Someone needed to keep continuous eyes on the subject....which is considered best practice. Statement indicated that jumper did not come to surface. 

In the circumstances if some one observes the area for a couple of minutes and sees no one the likelihood of recovery is practally zero. After four minutes the guy is brain dead.

If the crew cannot agree that the subject never came to the surface then the captain is in trouble. 

Everything else is hindsight and should not apply....not to say it will not.

Pete


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## john61ct

OldEagle said:


> Outbound, I agree with everything in your post above except the last line:
> 
> I think a captain standing in his cockpit, watching a crew member go overboard in the middle of the ocean, and sailing away like nothing happened, is more than "icing on the cake".


Yes, would be grounds on their own. But the greater culpability crimes, actually contributing to the death, were from the start up to the jump.

From the jump on, negligence a lot easier to prove but less consequential, just a question of retrieving a body.


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## hpeer

I still go back to the Jumpers personal responsibility to take care of himself. It strikes me the jumper did just about everything possible to force this situation. I won’t reintegrate all of his actions and decisions but it strikes me he did not take reasonable personal responsibility to take care of himself, let alone his own personal responsibility to the rest of the crew. 

In the final instance, I believe none of the reports indicate he cried out for help after jumping. 

Given the scanty and suspect info we have I’m of the mind to believe this fellow was negligent in seeking this crew position and greatly contributed to the final tragic outcome. 

I see the Capt and crew as victims of this fellows poor life decisions.


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## Slayer

Is the charge negligence resulting in death? And is it proof beyond a reasonable doubt? I don’t know, but looking at what is known or alleged, the prosecutor may have a problem with causation. If the captain was negligent in not searching for the MOB, (assuming that is what they are focusing on) can the prosecutor prove that the negligence caused the death? If the only evidence/testimony is that they saw him sinking, there is no evidence they could have saved him by turning around. And if this is like a typical criminal trial, the prosecutor has to prove that but for the negligence the MOB would have lived. The burden is fully on the prosecutor; the defendant has no burden of proving the opposite. Again, this is assuming the typical constitutional protections for an accused applies here. Now if they didn’t see him sinking a jury could infer that the man was alive and could have been rescued, and here the jury could find the testimony that they saw him sinking not credible and they could disregard it. Knowing juries, this is a crap shoot.


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## john61ct

No, charged under "Seaman's Manslaughter Statute" 18 U.S.C. § 1115

just simple ordinary negligence is the standard

felony conviction with up to 10 years in prison

https://en.wikipedia.org/wiki/Seaman's_Manslaughter_Statute


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## Slayer

john61ct said:


> No, charged under "Seaman's Manslaughter Statute" 18 U.S.C. § 1115
> 
> just simple ordinary negligence is the standard
> 
> felony conviction with up to 10 years in prison
> 
> https://en.wikipedia.org/wiki/Seaman's_Manslaughter_Statute


Thanks for the info. There is a causation element..." by whose misconduct....the life of any person is destroyed...". The prosecutor has to show that the captains misconduct caused the death.


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## outbound

I did not wish to understate the significance of the jump nor lack of rescue. In the past I’ve served as a friend of the court and expert witness on occasion hence have some exposure to similar cases. Rather I had in mind a case of a twenty something who died due to status epilepticus. He was driving when a boat slide off a trailer in front of him then slid up his hood striking his head. The event resulted in severe injury primarily to his frontal lobes. He had severe neurologic deficit but also difficult to control post traumatic epilepsy. Over twenty years later he died in status. I served pro bono as an expert and was also considered material in serving to prove the negligent lack of securing the motor boat by the drunk towing it was directly causal in my patients death and that negligence was the sole cause. That individual was convicted of manslaughter. Once that criminal conviction was in hand a civil suit was undertaken. Given my patient was degreed with an excellent job and expectation of advancement my patient’s expected lifetime earning was quite large. Given there was a prior criminal conviction my understanding is the case was settled out of court for millions to the benefit of my patients children. 
My prior comments reflect my exposure to that case.


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## Slayer

Twenty years later I would think the statute of limitations for his negligent conduct would have tolled. But I can see how you could have established a causal link between the drunkards negligence and the ultimate death. But how does that relate to this incident?


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## john61ct

Slayer said:


> Thanks for the info. There is a causation element..." by whose misconduct....the life of any person is destroyed...". The prosecutor has to show that the captains misconduct caused the death.


Which very much includes **failing** to perform actions a reasonable person would expect from one with such duty of care.


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## MarkofSeaLife

Whislt each of us seem to think that specific areas of the whole voyage are of interest to the court theres probably a lot in each of 4 main areas, and, include the correlation between them.

1) Pre the MOB, including embarking the new crew.
2) The incident leading up to the MOB
3) Immediately after the MOB
4) from, say, 12 hours after the MOB till docking.

Yes, I think there will be causal link within each area and all together.
The handgun and the dope being chucked overboard, to me, point directly to the Captains credibility to make proper decisions about the condition of the arriving crew. And I don't think a defence is: well, Ive done a few stupid things so I should be let off from doing other stupid things.

If the court takes a broad view as well, and the hearings are indepth, public, and well reported, we should be finding it very interesting as a guidebook to a modern skippers responsibilities. 

No matter that some are already bored of this thread, I reckon is gunna be burbling along for quite a while


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## Slayer

john61ct said:


> Which very much includes **failing** to perform actions a reasonable person would expect from one with such duty of care.


Agreed, but that is the wrongful conduct: failing to act when there is a duty to act. You still have to show that the wrongful conduct resulted in the death. If he was dead already or could not have been saved, failing to go back did not cause his death. And I have been speaking only about his failing to turn the boat around and attempt a rescue.

As to the earlier negligence, there is an argument that his jumping overboard was an unforseen, superseding act. But these are all debatable questions of fact that a jury would need to decide. Personally, I think the captain should have gone back and attempted a rescue. Watching my boat sail away while I am floating in the middle of the ocean is my worst fear and I would not wish it upon anyone, even some crazy ******* that just jumped overboard.


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## Minnewaska

Slayer said:


> Is the charge negligence resulting in death? And is it proof beyond a reasonable doubt?.....


Many seem to be focused on negligence, which itself is a pretty low bar. Much lower than gross negligence.

However, as the statute has been referenced several times in this thread, negligence is not solely the standard at all. It's misconduct, negligence *OR* inattention to duties. Any of the the three. Given all the reported missteps, it's hard to imagine one of these three standards was not met. At the very least, every ship has a duty to attempt to recover an MOB, not the least of which is the Captain who saw him go over.


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## tempest

Why throw the Type IV overboard the next day, or two days later? And tell the Crew " Well, if they ask if I threw a life ring over, I guess I could say I did" If he had returned immediately and searched and he and the rest of the crew couldn't find the MOB, then the presence of his Type IV still on the boat would have been entirely explainable. That indicates, to me at least, that he knew he should have come about, and didn't. Morningstar asked. " Should we turn the boat around" "Smith did not. "
That's all he would have needed to do!


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## Minnewaska

Again, acknowledging there could be more we don’t know, I agree this would have flown under the law’s radar, if the skipper spent one hour looking and called the CG immediately. Other errors too, but they would likely have been overlooked, if it appeared they gave a damn.

I really wish I could find the USCG report. 

How about this for unsubstantiated speculation. Could anyone aboard have been high at the time of the incident? It’s reported there were drugs aboard and they didn’t call the USCG for over a day. If you’re not going to call them right away, I wonder what provoked them a day later.


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## OldEagle

> I would not wish it upon anyone, even some crazy ******* that just jumped overboard.


I'm sorry to keep beating this drum, but--the information provided strongly suggests that the victim here had a serious medical problem, and was delirious and delusional due to that. Proper medical care would very likely have fixed that problem.



> Again, acknowledging there could be more we don't know, I agree this would have flown under the law's radar, if the skipper spent one hour looking and called the CG immediately. Other errors too, but they would likely have been overlooked, if it appeared they gave a damn.


Even given all the apparent errors of judgment leading up to the crisis, I think that you are correct in this. I think a jury of laymen would be more likely to have cut the captain slack on misjudgments than they would be on abandonment, and a prosecutor, recognizing that, would have been less likely to seek an indictment..


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## caberg

Minnewaska said:


> Many seem to be focused on negligence, which itself is a pretty low bar. Much lower than gross negligence.
> 
> However, as the statute has been referenced several times in this thread, negligence is not solely the standard at all. It's misconduct, negligence *OR* inattention to duties. Any of the the three. Given all the reported missteps, it's hard to imagine one of these three standards was not met. At the very least, every ship has a duty to attempt to recover an MOB, not the least of which is the Captain who saw him go over.


You'd have to look at case law but I don't think there's much of a distinction between misconduct, negligence and inattention to duties. In my mind, all three of those terms refer to negligent conduct. And I don't think it can really be disputed that failing to attempt any sort of rescue for an MOB is all three -- misconduct, negligence, and inattention to duties.

But that still does not end the question of whether such a captain, who fails to attempt any rescue of a MOB, is guilty of manslaughter. The conduct (again, whether you call it misconduct, negligence or inattention to duties) must *cause* the death. If the MOB was going to die no matter what rescue efforts were taken, then all the bad conduct in the world really doesn't matter for purposes of a manslaughter conviction.

The problem with the Seaman's Manslaughter statute is that there really isn't much case law, especially in the past few decades. But in an old case involving a failure to attempt rescue of a MOB, the following principle is explained in the jury instructions:



> It is not sufficient for you to believe that possibly he might have been saved. To find the defendant guilty, you must come to the conclusion that he would, beyond a reasonable doubt, have been saved if proper efforts to save him had been seasonably made, and that his death was the consequence of the defendant's negligence in this respect. Besides the condition of the weather and sea, you must also take into consideration the character of the boats attached to the ship.


https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0800.pdf


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## SeaStar58

Minnewaska said:


> You're focused on negligence, which may not be the issue. The statute calls out inattention to duties, separately from negligence. I think (know) you have a duty to attempt a MOB recovery.


In the initial accounts from the other crew members one mentioned on-going animosity or hostility fostered by the Captain towards the man who jumped over the side so that indicates something beyond simply negligence or inattention if he was giving the man enough attention to generate a hostile relationship with him. If that hostility early on from the Captain is upheld that will put a whole different slant on everything else about this incident.

Court day may indeed prove interesting when all the crew are in the same room hearing what the others testify to under oath. Likely some stories are going to change when faced with accessory charges or risking perjury.

A cautionary tale about how we treat those around us.


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## Slayer

caberg said:


> But that still does not end the question of whether such a captain, who fails to attempt any rescue of a MOB, is guilty of manslaughter. The conduct (again, whether you call it misconduct, negligence or inattention to duties) must *cause* the death. If the MOB was going to die no matter what rescue efforts were taken, then all the bad conduct in the world really doesn't matter for purposes of a manslaughter conviction.
> 
> The problem with the Seaman's Manslaughter statute is that there really isn't much case law, especially in the past few decades. But in an old case involving a failure to attempt rescue of a MOB, the following principle is explained in the jury instructions:
> 
> https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0800.pdf


Exactly what I was saying.


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## mstern

caberg said:


> You'd have to look at case law but I don't think there's much of a distinction between misconduct, negligence and inattention to duties. In my mind, all three of those terms refer to negligent conduct. And I don't think it can really be disputed that failing to attempt any sort of rescue for an MOB is all three -- misconduct, negligence, and inattention to duties.
> 
> But that still does not end the question of whether such a captain, who fails to attempt any rescue of a MOB, is guilty of manslaughter. The conduct (again, whether you call it misconduct, negligence or inattention to duties) must *cause* the death. If the MOB was going to die no matter what rescue efforts were taken, then all the bad conduct in the world really doesn't matter for purposes of a manslaughter conviction.
> 
> The problem with the Seaman's Manslaughter statute is that there really isn't much case law, especially in the past few decades. But in an old case involving a failure to attempt rescue of a MOB, the following principle is explained in the jury instructions:
> 
> https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0800.pdf


An interesting take. I have no clue if there is any case law or other guidance on the differences among misconduct, negligence and inattention to duties. Off the top of my head, I would say there has to be a difference, since if those writing the statute had meant to have negligence as the standard, they would have said so.

As for the jury instructions you cited, I have tried enough cases to know that the likelihood of a judge using another judge's jury instructions in a case like this is fairly low. Relatively standard jury instructions have evolved over the years for most common (and uncommon) crimes. And judges tend to use jury instructions that have withstood the test of appeals. However, I doubt very much that there is a "standard" jury instruction for this crime as no one has been charged with this for over a hundred years. And I cannot imagine a judge using a set of jury instructions from 1864.

That all being said, and aknowledging that legal advice and analysis on the internet is often worth less than what you paid for it, I agree with caberg's general supposition that the misconduct/negligence/inattention to duties must be proven to be the proximate cause of the death here for there to be a conviction.


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## caberg

mstern said:


> An interesting take. I have no clue if there is any case law or other guidance on the differences among misconduct, negligence and inattention to duties. Off the top of my head, I would say there has to be a difference, since if those writing the statute had meant to have negligence as the standard, they would have said so.


I agree, but this language appears to come from the early to mid 1800s, so who knows what the drafters were getting at. In my own mind, I feel that the legal concept and definition of negligence would cover "misconduct" and "inattention to duties".



mstern said:


> As for the jury instructions you cited, I have tried enough cases to know that the likelihood of a judge using another judge's jury instructions in a case like this is fairly low. Relatively standard jury instructions have evolved over the years for most common (and uncommon) crimes. And judges tend to use jury instructions that have withstood the test of appeals. However, I doubt very much that there is a "standard" jury instruction for this crime as no one has been charged with this for over a hundred years. And I cannot imagine a judge using a set of jury instructions from 1864.


I'm definitely not suggesting that these jury instructions be used today. I only cited them for the proposition that there must be a casual link between the negligent conduct and the death. Which seems obvious to me, but has been lost on some in this thread.


----------



## john61ct

mstern said:


> the misconduct/negligence/inattention to duties must be proven to be the proximate cause of the death here for there to be a conviction.


If the captain had taken the reasonably expected steps to care for his medically unfit (includes mental illness, intoxication etc) crew member / passenger,

e.g. heading back to shore early on, and radioing to report the problems would certainly have demonstrated proper care within his duties.

And IMO likely the MOB incident would never have happened, but that issue is not necessary to the case.

Just accepting the invalid aboard without due diligence to me was sufficient, but the overall pattern showed callous disregard for life.


----------



## MarkofSeaLife

john61ct said:


> showed callous disregard for life.


Which if if it results in death that should reasonably have been foreseen is.... Murder.

Thats a hell of a lot more than 10 years. 
And the bush lawyers here might stop stuffing around with their thoughts of negligence and turn to what could well be a murder charge!

I'm my mind it's *far* beyond simple negligence.


----------



## SeaStar58

MarkofSeaLife said:


> Which if if it results in death that should reasonably have been foreseen is.... Murder.
> 
> Thats a hell of a lot more than 10 years.
> And the bush lawyers here might stop stuffing around with their thoughts of negligence and turn to what could well be a murder charge!
> 
> I'm my mind it's *far* beyond simple negligence.


The relationship between the Captain and this man could come to bear on it turning into a murder or homicide charge

What is pushing someones buttons until they kill themselves? Just bad behavior? Bullying someone until they kill themselves is indeed murder.

There was a case some time ago where this type of bullying happened in Texas. At first it appeared to be a Good Samaritan offering to take in a now orphaned child when the young mother committed suicide. Further investigation showed the older woman bullied the young mother until she killed herself so she could get the orphaned child in her custody and skip the country with the little girl. The ghoul thankfully did not get custody but somehow escaped justice which was sad.

It will be interesting to see how the prosecution builds this case.


----------



## RegisteredUser

If the man was pregnant it would be a double murder, right?
If so, you would get to hang the captain twice.
Better ratings for sure...


----------



## john61ct

It would maybe be informative to discuss this case with a captain you're considering crewing for.

Obvious from comments here, not a good idea to sign on with just anyone.


----------



## outbound

The reason I posted an outline of a case I was involved in was to show how events that occurred far in advance were viewed as causal resulting in both a criminal manslaughter conviction and civil wrongful death.


----------



## midwesterner

Don0190 said:


> Guess it's how you are wired and look at it. If someone had been a danger on the boat for days, and had just been chocking me to the point of having to be pulled off and then yelled some crazy **** and jumped overboard; I would be pretty indifferent to trying to bring them back onto my boat. I don't feel that makes me "depraved" I think it makes a survivor.


It probably doesn't matter whether he was choking you or chocking you, the man sounds like he was out of his head with a combination of the medications and the seasickness patch he had worn.

Captain has the responsibility to care for ill or injured crew. If he was afraid to have him back on his boat, he could have tried to locate him, and toss him a life ring and life jacket, and left him in the water, but ensured his survival. He could get him in a life boat and towed him to port. He could have attempted to negotiate with him, and made it clear that he couldn't come aboard until he was calm.

He could have put him in a dinghy and hovered nearby until the Coast Guard rescued him. At the very least, he was obligated to make an attempt to locate him an attempt to save him.

It sounds like the captain just said good riddance, and continued on his schedule.


----------



## SeaStar58

Of course the question comes up that when they subdued him and pulled him off did he really jump or did they throw him overboard or did the guy die from the way they subdued him and in panic they dumped him over the side to cover it up. The original account indicates that they overpowered the man three to one so if they were that scared about him going off again why didn't they just tie him up right then and there as they had plenty of rope all over the boat to do it with. 

Yes more questions that the investigators and prosecutors have likely already been considering for quite some time. The experts the prosecution has revealed may not even be an indicator of what they are really suspecting here and just something to fall back on.


----------



## MarkofSeaLife

People often ask me why I don't take crew.

This thread is a classic example. 
Why the hell does someone need 4 people to sail a 42 footer from NYC to the Caribbean?

How the hell do you find 4 compatible people out of the Help Wanted ads of the Newspaper?

Utter laziness?



john61ct said:


> It would maybe be informative to discuss this case with a captain you're considering crewing for.
> 
> Obvious from comments here, not a good idea to sign on with just anyone.


----------



## Minnewaska

I think this thread has shed some light on a law that few probably knew existed. Worthy discussion. 

I think we can also conclude this much. If you don't want to spend months confined to quarters with an ankle bracelet, be sure you arrive with all your crew. I'll go the further step of saying you should insure you make an effort to recover and call for help immediately. The rest of our discussion is, of course, speculative.


----------



## Don L

midwesterner said:


> It probably doesn't matter whether he was choking you or chocking you, the man sounds like he was out of his head with a combination of the medications and the seasickness patch he had worn.
> 
> Captain has the responsibility to care for ill or injured crew. If he was afraid to have him back on his boat, he could have tried to locate him, and toss him a life ring and life jacket, and left him in the water, but ensured his survival. He could get him in a life boat and towed him to port. He could have attempted to negotiate with him, and made it clear that he couldn't come aboard until he was calm.
> 
> He could have put him in a dinghy and hovered nearby until the Coast Guard rescued him. At the very least, he was obligated to make an attempt to locate him an attempt to save him.
> 
> It sounds like the captain just said good riddance, and continued on his schedule.


I don't care. I would have hit him in the head with the wrinch handle, maybe twice. There's a difference in real time and reading a story with controlled data sitting on the sofa while getting your panties n a wad to join the mob.


----------



## Minnewaska

caberg said:


> ....The problem with the Seaman's Manslaughter statute is that there really isn't much case law, especially in the past few decades. But in an old case involving a failure to attempt rescue of a MOB, the following principle is explained in the jury instructions:
> 
> https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0800.pdf


I don't misunderstand the causal relationship and it will certainly be for a jury to decide if there is one. Failing to turn a ship around in moderate wind and light seas strikes me as causal, but there could be more we don't know. The Captain could not have known, nor reasonably assumed, the MOB died immediately. There are a couple of more interesting facets, in the case you provided. Much of it right at the beginning, in citations. Although, I don't know if any have been superseded by now. I think the statute we're discussing post-dates this case, perhaps to clarify many of these points.

In any event, I found these citations particularly interesting......



> [Cited in Thomas v. People (Colo. App.) 31 Pac. 350.]
> 3. In case of a person falling overboard from a ship at sea, whether passenger or seaman, where he is not killed by the fall, the commander is bound both by law and by contract to do everything,
> consistent with the safety of the ship and of the passengers and crew, necessary to his rescue,
> no matter what delay in the voyage may be occasioned, or what expense to the owners may be
> incurred.
> 
> 4. A doubt founded upon a consideration of all the circumstances and evidence, and not a doubt
> resting upon mere conjecture or speculation, is a reasonable doubt.
> 
> [Cited in State v. Gile (Wash.) 35 Pac. 421.]
> 5. On the trial of a sea-captain for manslaughter, in omitting any attempt to rescue one of his crew, who had fallen from the royal-yard-arm into the sea, and the defense was that the seaman had been killed by the fall: Held, that the burden was upon defendant of showing that the fall was
> fatal, or of showing such attending circumstances as to create a reasonable doubt whether such
> was not the fact.


These state "In the case of a person falling overboard, ....the Commander is bound... to do everything.... necessary to his rescue". This clearly establishes duty.

The next was more interesting. The failure to attempt a rescue is not causal if the fall was fatal, but it is held that the defendant has the burden to show this was the case. A willful jump from a sailboat a few feet off the water is not going to be presumed fatal, IMO.

The defendant was acquitted in the linked case, but the fall was 100ft in heavy seas and high winds from a large vessel. No doubt, these were substantially different circumstances. Turning around a 40 ft boat in moderate conditions is simple.

This all the more reinforces my take away. If you make the effort to recover, even if unsuccessful, there is a de-facto defense that you performed your duty and had done everything necessary. Nothing I've read makes success mandatory. This Captain should have tried.

Maritime law is a unique beast, but I continue to wonder whether depraved indifference to life (generally murder in the second degree) would apply here. In that case, it is solely based upon the action or inaction of the defendant, not the action or injury of the victim.

Given what we know, I still suspect this ends with a plea and the skipper gives up his ticket to carry paying passengers in the process. Maybe time served with the ankle bracelet.


----------



## Don L

Minnewaska said:


> Maybe time served with the ankle bracelet.


Not if I'm on the jury as to me nothing overrides the captains duty to remaining crew, boat, and himself in the story so far presented.

Sorry to some people like me exist


----------



## mstern

MarkofSeaLife said:


> Which if if it results in death that should reasonably have been foreseen is.... Murder.


Nope. Not the way it works. Murder requires an intentional act with the intent to cause the death of or injury to the victim. Simple indifference to the effect of the acts on someone's life, even if "depraved indifference", is Manslaughter. That's why when a drunk driver kills an innocent victim, it's Manslaughter, not Murder. You may be justifiably angry and disgusted with the conduct of the captain here; but that don't make it Murder.

One thing that I do remember from Law School, was learning that there is no duty to assist others who may be in danger, neither civilly or criminally. I was surprised to learn that, as it goes against everything I was taught and what I always considered to be my moral and ethical obligations. Nevertheless, it was true then and remains so now: you can walk right by an accident victim with no obligation to do anything.

The law that we are debating here reflects one of the basic differences between a captain's legal obligation to his crew and passengers, and the lack of legal obligations the general public has to each other.


----------



## SeaStar58

mstern said:


> Nope. Not the way it works. Murder requires an intentional act with the intent to cause the death of or injury to the victim. ...


However Bullying is generally considered a deliberate act intended to cause harm to the victim and when it leads to death can be viewed as premeditated. If the account of the bullying of the victim by the Captain holds up that could become a big factor here too.

A death caused during the commission of a crime can also be considered a murder even if its one of the accomplices so the marijuana and gun could also come to bear here depending on how much marijuana was actually involved. Was the big rush potentially all about the marijuana and its delivery date?

There appears to have been more going on here than some would like to believe and the Captain the more is revealed seems to be the source of much if it.

Just like the Bounty we will probably do well to avoid going down the path this particular Captain took regardless of the outcome of the hearing. At least in that event with the Bounty they gave him a small boat with provisions when they drove him off the vessel.


----------



## john61ct

Non anglosphere countries often have a general duty to rescue.

Even in the US medical training or first responder certification will create that obligation, as well as a family or other close relationship.

But a captain over their crew, no doubt, part of the privilege.


----------



## Slayer

Another article with additional info posted in the Newsfeed for this website: https://www.centralmaine.com/2018/1...amden-sailboat-captain-charged-in-2015-death/


----------



## jtsailjt

SeaStar58 said:


> However Bullying is generally considered a deliberate act intended to cause harm to the victim and when it leads to death can be viewed as premeditated. If the account of the bullying of the victim by the Captain holds up that could become a big factor here too.
> 
> A death caused during the commission of a crime can also be considered a murder even if its one of the accomplices so the marijuana and gun could also come to bear here depending on how much marijuana was actually involved. Was the big rush potentially all about the marijuana and its delivery date?
> 
> There appears to have been more going on here than some would like to believe and the Captain the more is revealed seems to be the source of much if it.
> 
> .


I think you're filling in a lot of blank areas in this story with pure speculation.

I haven't read that the marijuana was a quantity that was being transported for sale and required a particular delivery date. Did you read that somewhere or is that just speculation? Isn't it equally likely that the amount was for personal use and was jettisoned because the captain knew that it's value wouldn't justify the trouble it would create if it were found once they reached port?

"Bullying" is a subjective term that would be pretty difficult to prove beyond a reasonable doubt after the fact. One persons bullying is another persons attempt to maintain some semblance of order in his crew and safe conditions for his crew under stressful conditions. None of us were there so we just can't be sure about this part of the story.

I don't think the captain handled the situation as well as possible, especially when he sailed away from the MOB, but leading up to that point I think there's a lot of gray area that we just don't know about yet so probably shouldn't be speculating on.


----------



## willyd

RegisteredUser said:


> If the man was pregnant it would be a double murder, right?
> If so, you would get to hang the captain twice.
> Better ratings for sure...


You're forgetting he should also be charged with the murders of the man's unborn children, and sued for the amount of money he and his progeny would have made.

The crew, even late on day 2, "assumed that Pontious was still sick and dehydrated". As far as we know, the next time Pontious shows alarming behavior is late on day 3, just before he attacks the captain and jumps overboard. Yet many on this thread seem to start the clock for the captain's negligence at the time Pontious steps onboard, because his feet are swollen.

It's quite possible the captain, on day 3, attributed Pontious' remarks and behavior to hallucination associated with lack of sleep or water: https://www.worldcrunch.com/tech-sc...-round-the-world-sailors-start-to-hallucinate


----------



## mstern

SeaStar58 said:


> However Bullying is generally considered a deliberate act intended to cause harm to the victim and when it leads to death can be viewed as premeditated. If the account of the bullying of the victim by the Captain holds up that could become a big factor here too.
> 
> A death caused during the commission of a crime can also be considered a murder even if its one of the accomplices so the marijuana and gun could also come to bear here depending on how much marijuana was actually involved.


You are confusing your disapproval with the Captain's actions (or inactions) with what the law dictates. I believe you are alluding to the possibility of the facts here sustaining a charge of felony murder. Unless there are significant unknown facts at play here, there is nothing to support that here. Just because there was a death caused during a crime doesn't make that death a "murder".

Felony murder requires facts that show an actor knowingly participated in a felony crime; once he does so, he can be found to be guilty of murder if someone dies during the commission of that felony. But only if that death was a murder. In order for that to be the case, you need two things: an intentional participation in a felony crime, and a murder committed in the furtherance of that crime. The classic example is the multiple participant bank robbery. If two guys go into the bank and take money at gun point and one of them shoots and kills someone, then the shooter could be found guilty of murder and both the driver and the other robber could be found guilty of felony murder. You have the two elements in that example: a felony crime that all intentionally participated in (the bank robbery), and a murder that was committed in the furtherance of that felony (the intentional use of deadly force; N.B. that this would probably be Murder in the 2nd degree, not in the 1st degree. Murder 1 is generally killing someone with the intent to kill them. Murder 2 is killing someone when you didn't mean to kill them, only hurt them).

Given this framework, you can see how this just doesn't fit our facts in the sea-going case. Being mean, bullying or even cruel to someone isn't a crime. Given the prosecutor's decision to go forward with this case, you can bet that if they had more they could charge him with, they would. My supposition is that the prosecutor is as offended by the Captain's actions as you are, and he wants to see him punished. Given the clearly lower standards of culpability required under this old, archaic statute, the prosecutor probably sees this as his best chance of winning a conviction.

As I mentioned before, I was a prosecutor for about 5 years, and I am troubled by this statute. I don't think it is a good thing to be able to put someone in jail for 10 years for plain negligence. I get that captains have a greater duty of care to their crews and to their passengers; but 10 years? For plain negligence? That's too far in my book.


----------



## john61ct

Sure, and guarantee he doesn't get that, and likely little actual jail time.

But revoke the ability to charter? Would not be harsh at all, heck just sexual harassment would get that these days (not minimizing seriousness of that crime).


----------



## mstern

john61ct said:


> Sure, and guarantee he doesn't get that, and likely little actual jail time.
> 
> But revoke the ability to charter? Would not be harsh at all, heck just sexual harassment would get that these days (not minimizing seriousness of that crime).


I agree that a first time offender is unlikely to be given the maximum sentence - not just here, but in just about any criminal sentencing. What bothers me at this point (I'm not upset about a conviction or sentence that has yet to happen) is the statute itself. It is just wrong in my book to have a statute that provides for a 10 year prison term for plain negligence, let alone for those other things like inattention or dereliction of duties.

Even if he is not convicted, I wouldn't be surprised if the Coast Guard feels compelled at this point to pull his license, regardless of the outcome of their previous investigation.


----------



## hpeer

Has this particular statute ever been prosecuted before? What is the historical precedent? What is the historical context? What is the history of this statute?


----------



## Minnewaska

mstern said:


> .......I get that captains have a greater duty of care to their crews and to their passengers; but 10 years? For plain negligence? That's too far in my book.


With one exception. A guy is dead. It's not like one's negligence simply damaged property.

In this case, the negligence, or inattention to duties, was intentionally failing to attempt an effort to save the guy. It wasn't failing to tie a knot properly. Reportedly, a crew member questioned their decision to turn around and the Captain consciously decided not to. That's going to leave a mark on the Captain in some form. It probably already has.


----------



## hpeer

Minnie,

Here’s hoping St Peter treats you with more empathy than you give this Captain.


----------



## mstern

Minnewaska said:


> With one exception. A guy is dead. It's not like one's negligence simply damaged property.


Then charge him with manslaughter (depraved indifference to human life resulting in death). No need to monkey around with an archaic statute that will have the judge and jury floundering to find the right way to assess the law. My assumption is that the prosecutor doesn't think the facts support a manslaughter charge, which is why he has settled on this particular statute.

I don't know the whole story here, just what has been written in the newspaper articles. If that's all there is, then I would support stripping this captain of his license. Jail time? Not so sure of that. But again, none of us were there, and none of us has anything approaching the full story. So I will withhold judgement until I hear it.


----------



## RegisteredUser

mstern said:


> ..... So I will withhold judgement
> .....


Yeah, but the boys alteady have a tree picked out.
Been a long time since there was a good hanging in this forum.
They smell it, like they are in heat.
Viagra in the air....


----------



## outbound

Just curious. How many of you would do a passage under this guy?


----------



## RegisteredUser

outbound said:


> Just curious. How many of you would do a passage under this guy?


Without knowing who he voted for and his favorite color, i would be very hesitant.

Any adults here? Hey, any here....?


----------



## Don L

outbound said:


> Just curious. How many of you would do a passage under this guy?


I would!!!!! But then I'm not a lying, depressed, drug taking mental case. :ship-captain:


----------



## hpeer

I would. He has the well being of the crew in mind, he was able to make a tough decision about the greater good and move on. 

Ever see/read Captain and Commander, the passage around the Horn?

Hell, by the standards expressed by some here you must never singlehand, it’s not safe and illegal and must never take crew because you as captain are completely responsible for their well being no matter what.


----------



## Minnewaska

hpeer said:


> Minnie,
> 
> Here's hoping St Peter treats you with more empathy than you give this Captain.


I can see the dead guy and his family deserving empathy, the rest of us will be judged on our merits.


----------



## Minnewaska

mstern said:


> Then charge him with manslaughter (depraved indifference to human life resulting in death).......


The charge is manslaughter, seamans's manslaughter in particular, so I assume you mean some common law version of manslaughter?

Can a charge of common law manslaughter be brought against an act in international waters? I figured this is why they used maritime law.


----------



## Minnewaska

RegisteredUser said:


> Yeah, but the boys alteady have a tree picked out.
> Been a long time since there was a good hanging in this forum.
> They smell it, like they are in heat.
> Viagra in the air....


I think this is undeserved ridicule. The discussion is based upon what has been reported. Most have acknowledged there could be more to it, but comments are reflective of the reporting.

Why criticize the discussion? You're certainly not going to stop it. Try to make a constructive case, based on the reports, if you like.


----------



## hpeer

Minnewaska said:


> I can see the dead guy and his family deserving empathy, the rest of us will be judged on our merits.


Exactly my point! You have a narrow and punitive view point. Your empathy is severely limited.

To have a fair and impartial understanding of this or similar events one needs to be able to evenly see both sides, to imagine how it felt to be ther, to understand the human condition of ALL participants. That's why we have jury's if 12, to assure a likelihood that some of them will be able to consider each of the main view points. If, after due and fair consideration, someone is found to be negligent then that decision stands, for better or worse.

You do a good job of prosecuting a single viewpoint. It's not the only viewpoint, even if you cant see the counter argument. Actually, not being able to understand the other view point, not having empathy, makes you a poor advocate for your viewpoint. You won't see and understand the countervailing arguments and won't have properly addressed them.

But I am wandering into rehtorical technique. My apologies for the drift.


----------



## RegisteredUser

Minnewaska said:


> I think this is undeserved ridicule. The discussion is based upon what has been reported. Most have acknowledged there could be more to it, but comments are reflective of the reporting.
> 
> Why criticize the discussion? You're certainly not going to stop it. Try to make a constructive case, based on the reports, if you like.


An educated person with good morals and ethics takes media reports and makes a case on peoples lives....not waiting for facts.
A fake prosecution, but entertaining on a Net forum.
I find this surprising and disappointing.
But let the dogs out...as you say i can not stop it.

I think many people have forgotten some basic truths.


----------



## Sailormon6

Minnewaska said:


> With one exception. A guy is dead. It's not like one's negligence simply damaged property.
> 
> In this case, the negligence, or inattention to duties, was intentionally failing to attempt an effort to save the guy. It wasn't failing to tie a knot properly.


Under this law, a sentence of ten years incarceration could be imposed for failing to tie a knot properly, resulting in a death. Suppose you tie a knot improperly. It slips. The anchor line runs free, wraps around the foot of a crew member, and the anchor takes him overboard and under water. That's ordinary negligence. It could happen to any of us. Should your penalty be 10 years in prison? Think about it. The only thing you did wrong is to tie a poor knot, and you're facing 10 years in prison.

I agree with mstern that 10 years in prison is a Draconian penalty for an offense based on ordinary negligence. That's not to say that the captain here shouldn't suffer a significant penalty.

A comparable state vehicular offense is Vehicular Homicide. The prosecution must prove that, while operating a vehicle (including a boat or aircraft), you caused the death of another person in one of the following ways: (1) negligently; or (2) as the proximate result of committing a speeding offense in a construction zone. Vehicular Homicide under most state laws is a first degree misdemeanor, and the potential sentence includes up to six months in jail and a mandatory license suspension for one year to five years. Six to 12 months incarceration is the penalty most commonly imposed for an ordinary negligent homicide.

A more appropriate penalty for a death resulting from ordinary negligence would be 6 months or a year. I suspect the reason why the penalty for this offense was set at 10 years is because, at some time in the past, a ship's captain made a careless mistake, perhaps while operating a ferry boat or steamboat, and three hundred fifty people died, and it was thought that 6 months wouldn't have been a sufficient penalty for all those deaths, so, to quell the public furor, the penalty was set at 10 years. The way a professional prosecutor would handle that would be to charge the captain with a separate offense for each death. There would be one trial for all the offenses and, if found guilty of one, he'd probably be found guilty of all. That would amount to 350 sentences of 6 months each. Then the prosecutor would ask that the sentences be served consecutively...175 years total. 350 deaths is a crime of greater magnitude than one death. Accumulating the penalties and making them consecutive makes the penalty more proportionate to the crime.

Some of you think this was really an act of murder or manslaughter, but, if the prosecutor thought he could prove the necessary elements of those offenses, he would have charged the captain with one of them. Obviously the trained and experienced prosecutor didn't agree with you that it was murder. If the prosecutor charged him with murder, he could have been sentenced to life or perhaps capital punishment.

Like mstern, I'll wait until all the facts are in before I pass judgment, but I think the penalty for this offense involving ordinary negligence should be adjusted downward.


----------



## Minnewaska

You guys have failed to read the many times I've acknowledged there is likely more to this story. I've only adjudicated what's been written. That's hardly a prosecution. 

I've read the comments supportive of the Captain, including the points made by the expert witness that is going to testify that the Captain is not responsible. The mere fact that I don't buy it, does not constitute a lack of impartially assessing it.

I have not heard one convincing argument for why the Captain did not turn around. I don't agree he could be immediately determined to be dead, I don't agree that being accosted is a reason for not trying, I don't agree that he was too hostile to bring back aboard. You may feel differently. That's fine, that's the discussion. 

Let's discuss the circumstances, the case and the law that few knew existed. Judging the ethics of those with an opinion different that yours is the most unsubstantiated point made in this thread.


----------



## RegisteredUser

In the end, after everybody has posted and reposted, this is still the Internet.
Its BS.
Why make a game or exercise of this umfortunate happening...really?


----------



## Minnewaska

I don't see it as a game. I see it as an analysis of a situation that helps us all think through what we might do, if faced with the same circumstance, as well as what the law calls for. I've learned something here. I bet others have too. 

If you don't want to join in, don't. Simply trying to stifle it seems to be misguided ( I could have used one of your more colorful adjectives)


----------



## RegisteredUser

Of course, for the children....

Sounds ok but when the path branched, the bloody one was quickly taken and all those good intentions were all left behind - judged, convicted.

Im not sure what is worse than murder, but i will probably learn that soon on this thread....


----------



## Sailormon6

I'm not pointing an ethical finger at you Minne. I understand your point.

I think some here don't appreciate that a very slight oversight can result in a 10 year prison sentence under this law. I don't see the justice in intentionally destroying one person's life because his moment of carelessness resulted in another's death. That's a net loss of two lives because of a mere momentary oversight. The facts in this particular case are ambiguous, but the essence of the offense charged is ordinary negligence. Most of us are probably guilty of ordinary negligence at least twice a day, but nobody died. There but for the Grace of God go I, eh?


----------



## tempest

RegisteredUser said:


> An educated person with good morals and ethics takes media reports and makes a case on peoples lives....not waiting for facts.
> A fake prosecution, but entertaining on a Net forum.
> I find this surprising and disappointing.
> But let the dogs out...as you say i can not stop it.
> 
> I think many people have forgotten some basic truths.


There's nothing immoral or unethical about publicly discussing a situation that has been publicly reported several times in the media. No one here will be sitting on the Jury if this case ever gets to that point. The Prosecutors, who presumably know some facts, impounded his boat and placed an ankle bracelet on him. In order to have done that, they would have had to have presented their facts to a judge and obtained a warrant. We didn't do that.

The media reports on this, unlike many boating related incidents, were pretty thorough. As someone who has turned their boat around 300 miles out to get two sick crew back to shore, in much worse conditions, I have a difficult time understanding, how you don't head for the nearest port when you have a sick, delirious, crew member, showing no signs of improvement, who was sick from the get go! Then, when you do finally get to port that person is no longer on board, and you didn't even take the time to look for them, or call for help. But you did throw a life preserver over a day later.

Maybe the Captain can successfully explain all his actions or in-actions; Maybe you can offer an alternative theory? Having spent 12 years in Catholic Schools, I've been shame shamed by the best. So all your tsk tsking is pretty fruitless, unless you've got something else to contribute. :grin


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## hpeer

Tempest, 

They said they saw the guy go over and watched him go down with a flashlight. 

What exactly is there to look for?

No cries for help were heard.

Sounds to me like a “search” would have been proforma. 

But there I go, cherry picking bits of a newspaper article. 

And I disagree this is meaningless internet chatter. This constitutes group bullying and the moral destruction of an individual. This thread builds a fictions story of what occurred and assess judgement. Folks have committed suicide over this kind on communal shaming that is being perpetrated on the Capt. You say you have experienced shaming, how is this conversation different? Shame on you for shaming him.


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## tempest

Hpeer,


As long as we're cherry picking. It said " Smith" watched him sink. Then, he asked pepper to shine a light down. And Sorry yes, in 5 knots of wind, you stop the boat, turn it around if necessary, Stay on station, and conduct a search, proforma or not. It's SOP. Did he even record the coordinates? 

How many hours and days does the coast guard search for people before they call it quits? They even sent a plane out a day later! 
It was 5 knots of wind on a moonlight night, not 10 ft. seas in a gale. 

Maybe he was shaken by the attack, maybe he wasn't thinking clearly, but at least one other crew member suggested that they turn around. 

I'm questioning his command decisions. You can label it shaming if you want. I think they are valid questions


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## Scotty C-M

My last post on this topic was #13. I think I'll go ahead and repeat myself.

We can learn from this experience. Some day we might have a similar situation and we might appreciate the time we spend here discussing this situation. I still think three things:

1. All skippers need to assess the medical conditions of their crew. If there is a problem, some course of action should be taken.
2. Giving perscription medication might result in side effects that can be significant. (note to self: this is the least significant of the 3)
3. Any man overboard situation calls for basic rescue procedures.

Examining this tragedy should be done with respect to all concerned, but is still an acceptable action. For example, my opinion is that the skipper really failed to take appropriate actions on all three counts. I sure as hell hope that I can do better, and that all of you endevor to do so as well. I think that I'll be a bit more careful in my assessment of crew's medical presentation. If someone goes overboard, I sure as hell won't just say, "Oh, he went down. I'll just take off". If you think that is shaming, then we'll just disagree. I see it as a statement of deeply held values of responcibility that must be held by the skipper. Leaving a MOB, as he describes, is just wrong. Reading the opinions of these posts have helped me clarify my position, and hopefully will help me (and perhaps others) be a better skipper.


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## Minnewaska

Sailormon6 said:


> I'm not pointing an ethical finger at you Minne. I understand your point.


Thanks for understanding. I never realized this maritime law existed and understanding what will trigger a prosecution has merit, IMO.



> I think some here don't appreciate that a very slight oversight can result in a 10 year prison sentence under this law.


Not sure this is a fair statement. It says up to 10 yrs, so I doubt anything slight would constitute the max sentence. I've said repeatedly that I doubt he'll get jail time, let alone the max.

On the other hand, the report that he failed to turn around and even look for the victim and didn't call for help until the next day does not sound like a slight oversight to me. A slight oversight is failing to close a lifegate. I'm trying to imagine ever losing a crew member overboard and not looking for them. Add the account that he threw a life ring over the following day to "say he did" and it's far beyond slight to me.



> I don't see the justice in intentionally destroying one person's life because his moment of carelessness resulted in another's death. That's a net loss of two lives because of a mere momentary oversight.


Intentionally failing to even look for the MOB is carelessness? I think the value of this entire thread is establishing the law that the Captain has a legal obligation to try to save a crew members life, regardless of the crew members behavior. I've read arguments above that the body went under and never came up, so there was nothing to search for. Personally, I don't buy it. As you are sailing away, there is no way one could make that certain permanent determination, at night. I think this is what the case revolves around. The MOB was intentionally abandon.

Why, I don't think we can conclude. Anger, drugs and guns aboard, schedule pressure.... I don't know.



> The facts in this particular case are ambiguous, but the essence of the offense charged is ordinary negligence. Most of us are probably guilty of ordinary negligence at least twice a day, but nobody died. There but for the Grace of God go I, eh?


We know we don't have all the facts, but I don't see what is ambiguous about what was reported. I also don't see this as a negligence case. The statue quoted above, calls for inattention to duties. The Captain has a duty to attempt to recover a MOB. The only exception I've read about is when you know the fall was fatal and the Captain has the burden of proof over the fatality.

Big lesson. Always attempt the MOB recovery. It seems to be the law.


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## Minnewaska

hpeer said:


> .....And I disagree this is meaningless internet chatter. This constitutes group bullying and the moral destruction of an individual. This thread builds a fictions story of what occurred and assess judgement........


As I see it, we are discussing the statute itself and the facts presented in the media articles. No one is forming a posse to go get the guy, nor confronting him directly. Yes, opinions are based upon what was reported, with ample acknowledgment that we likely don't have all the facts.

Would you argue that the media should not have published what they repeatedly wrote as well, given it likely shamed the defendant?


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## hpeer

Minnie,

That’s not the tone that comes across when some are calling for a murder charge. 

As always many follow these threads that do not post. Opinions are formed. 

I’m not saying it’s intentional but that we should be somewhat careful about our speculations. 

Not to forget “inmocent until proven guilty”.


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## Minnewaska

hpeer said:


> ....Not to forget "inmocent until proven guilty".


That is an important feature of our judicial system. It's based on the premise that it is better to release 100 guilty than to incarcerate 1 innocent.

It's not intended to mean you actually are innocent. I could see you murder someone and know you did it, but you are still afforded this legal premise in court.

But again, I'm not trying to decide if he deserves jail time. The accounts in the media reports are damning, as I see them, and understanding the statute is informative. Others differ, which is the merit of the discussion.


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## Donna_F

RegisteredUser said:


> In the end, after everybody has posted and reposted, this is still the Internet.
> Its BS.
> Why make a game or exercise of this umfortunate happening...really?


I don't see that anything different is being done here than we have done with other unfortunate events at sea. In fact, I'm going to move this thread to the forum reserved for that.

As long as the commentary is not against forum rules and there are no personal attacks, this, like the others can be a learning experience for anyone who chooses to read it. If anyone disagrees, the choice to not read the thread is always an option.

Keep it respectful.


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## hpeer

Minnewaska said:


> That is an important feature of our judicial system. It's based on the premise that it is better to release 100 guilty than to incarcerate 1 innocent.
> 
> It's not intended to mean you actually are innocent. I could see you murder someone and know you did it, but you are still afforded this legal premise in court.
> 
> But again, I'm not trying to decide if he deserves jail time. The accounts in the media reports are damning, as I see them, and understanding the statute is informative. Others differ, which is the merit of the discussion.


Back to the "innocent until proven guilty" bit. That is determined in a trial where both sides get a chance to put their best case forward.

Media reports are consistently wrong, often very wrong.

Why would you form an opinion based on media reports?

Not to mention that simply reading the reports no two people have the same take away because we read and interpret it differently.

You and I for example. I think it's fair to say you have more empathy for the jumper and I have more for the Capt and crew. That colors how we read the story. You focus on he poor guy who is sea sick, my focus is on the Capt and the ordeal he went through trying to interpret the situation and save it. We each hear the moral of the tale differently.

I see no harm in my interpretation. I do see harm in going overboard with blaming the Capt. Desiring to charge him with murder etc. Folks reading this can come away with an opinion of the man that can have direct impacts upon him. We are in a small community, many more people read than post, certinally some of the folks here either now know the Capt or will have occasion to know him. His name is out there in the real world. Family, friends, and neighbors can read this stuff.

There is a real possibility that he could be completely cleared in the trial but suffer ostracism from the community due in part to these conversations. It's a kind of slander for which he has no recourse. It would be subtle but brutal punishment; a whispering campaign, exclusion from social functions, loneliness, etc. That can be worse than jail.

I think all should be more careful in what they say and consider how they would feel if circumstances put them to the hot light of internet prosecutors.


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## MarkofSeaLife

While we're talking Law... can someone answer me the straight law question:

Can judges in this type of case - USA Federal court - make a FINDING that forces the government to consider legislation?

Example, I'm Australian and a judge in an Inquest into a death (not criminal hearing at that time). A judge can make specific orders, notwithstanding a future criminal trial or conviction, that change current legislation to reduce incidence of future death or injuries (pending government legislation).

For example, can this judge, notwithstanding guilt or innocence, ask/force the government to fix some bit of safety thing thats not working, not existent etc?


Mark


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## hpeer

Mark,

I don’t think so. I think it can be done but the case has to be brought as a suit claiming the government is negligent in some respect. The government would have to be an additional defendant. 

Hopefully someone better than me can provide a more knowledgeable answer.


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## tempest

This Web Page / Article contains links/images of the 4 pages of the Coast Guard Report that was filed:

https://www.penbaypilot.com/article...scusses-incident-coast-guard-releases-/111009

It answers some questions. The Captain apparently asked the individual if he was taking any drugs. The deceased interpreted that to mean " illicit" drugs and replied no. The coast guard investigator also concluded that his medications ( if he was taking them ) may not have had time to be absorbed due to his vomiting.

It also discusses the attempts at communication.

And he recorded the lat/Lon


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## Sal Paradise

Two things jump out at me; the captain had an obvious duty to his sick crewman and should have attempted a MOB to get him back on board. So he was negligent and stupid. 

I've tried to look at this from the other angles, but that is just clear. To try and bring a sort of self defence by negligence into this is a moral and legal quagmire.

The only defense I can see, is the captain was in shock after being assaulted and so therefore temporarily not responsible.. and could not respond in time, and within a few seconds it was hopeless. The captain then recovered his wits but it was too late.


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## hpeer

Not a bad analysis Sal. 

Er all like to think we would do better in these kind of situations but we never really know until tested. Hopefully it remains a mystery.


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## john61ct

I still don't understand the focus on his handling of the MOB, that is just a completely obvious demonstration of his indifference to his obligations.

But in actuality very likely would have done nothing but secure the body, very little harm done.

The real culpability was the fact his negligence from the beginning **caused** the incident, in the sense that his taking reasonable care - as his duty required - would have prevented it.

A little harder to "prove" but a much more serious consequence deserving of much harsher punishment than his negligence after the incident.

To me that's where all the discussion should focus.


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## Minnewaska

hpeer said:


> Back to the "innocent until proven guilty" bit. That is determined in a trial where both sides get a chance to put their best case forward.
> 
> Media reports are consistently wrong, often very wrong.
> 
> Why would you form an opinion based on media reports?


Let's be clear. Again. I'm not forming an opinion of what should legally happen to him, other than what has been reported. I've even speculated he won't get jail time. However, based on what we've read, I think he was wrong and culpable. The reason for the discussion is to help understand the requirements of the law and analyze a situation any of might find ourselves in one day. It's been seared in. Try to recover, no matter what. Even if too late.



> You focus on he poor guy who is sea sick, my focus is on the Capt and the ordeal he went through trying to interpret the situation and save it. We each hear the moral of the tale differently.


I fully reject the notion that I'm focused on the poor guy who was sick. I've read all the reports and heard all the analysis of what's been reported. Based on both sides of the story, I find it hard to believe that any responsible Captain would not turn around and try. I think we just disagree on the assessment, but you can't ascribe my motives, short of just countering a conclusion you disagree with.



> There is a real possibility that he could be completely cleared in the trial but suffer ostracism from the community due in part to these conversations.


I hear your sensitivity and it's admirable to a point. However, I think it is just that, sensitive. This ostracism could or is going to happen anyway. This discussion is taking place at any waterfront bar that mentions the newspaper article and they are far greater than this place.

In fact, I'll offer a different perspective. If he is cleared and there is more to it than we know that truly changes our minds, it can be posted here and cleared up. Once everyone at the bar goes home, it's done.



> It's a kind of slander


I know you object to a more critical view of the Captain's actions, but they aren't slander. You have to make a knowingly false statement and everyone is just reacting to the media articles.


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## Jeff_H

Donna hits the nail on the head. It seems like these 'tragedy at sea' threads often end up provoking strident debates based on incomplete details. Often these stories break in the non-sailing press, written by reporters who may not be not familiar with the sea and how things are done on boats. The details given to the press are often sketchy at best and purposefully slanted towards one viewpoint or the other. The story lines are sometimes simplified to read as more black and white for the reader or to fit into the space left on the page. 

The best thing that these discussions can do is be thought-provoking, leaving us asking the question, "What would I do if I were in that situation?" 

In asking that question with the luxury of not actually being in that situation, we have the time and presence of mind to come up with and analyze a variety of options. The give and take of these types of discussions provide us with alternative viewpoints that perhaps adds additional ideas to be considered. In theory, having gone through a thoughtful process in a theoretical environment rather than real life, if intellectually honest with ourselves, we should be better prepared should something similar happen in real life. 

But for all of the abstracted discussion and all of the thought and analysis, it is hard to know what we would actually do when faced with real life. Often there are snap decisions made in the moment, or even initial slower decisions made that make sense at the time, but which do not make sense when viewed in hindsight and with the emotions and tensions of a crisis safely behind us. In hindsight, it is easy to make assumptions about what we should have known at the time, or should have been able to predict, or what might have happened if we chose another course of action at any point along the way. 

And at any point in a decision making process, we may lack full information or the time to make an informed decision because there are times where events seem run counter to our own personal experience, or knowledge. And there may be times when there are legal implications to our actions which seem to run counter to common sense. There are times when the prima facie information turns out to be inaccurate once a more careful investigation takes place. 

Because of all of the above, these discussions cannot not be anything more than hypothetical and except peripherally accurately portray the facts of the case and therefore cannot be seen as specifically addressing the actual people or events. 

This case reminds me of a case that happened in the late 1970's when I lived in Savannah. I apologize in advance if I am not 100% accurate in my recollection of the details. The jist of that case was that there was a comparatively new crewman on a shrimp-boat, who had gotten into a beef with one of the regular crew members. That regular crew member had aleged that he thought that the new crew was acting irregularly and might be on drugs. Something had happened and the skipper had relieved the new crew from performing the task that he had been doing. The new crew member became riled and accused the skipper of trying to cut him out of his share of the proceeds of the trip. The skipper had agreed to pay the crew in full, but continued to insist that the new crew was not to continue doing his tasks. The new crew asked for that in writing, and the skipper left the deck to put that in writing. 

While the skipper was off the deck, things continued to worsen and at some point the new crew pulled out a knife and when one of the crew moved in his general direction, he swung the knife and cut that crew member which later turned out to be a superficial wound. 

When the captain came on deck, the man with the knife was distracted for a moment and one of the crew hit the new crew's arm with something heavy, and knocked the knife out of his hand and when the new crew seemed to go for the knife, that person hit him again and knocked him down and pushed away from the knife. The captain had the man hogtied and tied to something down below, and then called the natural resources police (marine police) and reported the incident. While waiting for the police, the crew pulled in the gear and dealt with securing the boat. 

Initially, it was reported that the marine police took the new crewman into custody, took a preliminary report, inspected the shrimp boat and ordered the captain to make a formal report once ashore. 

When this was initially reported it seemed like the captain and crew had not done anything wrong. But then things took a different turn. The new crew claimed that the captain and other crew had lied. That he had been imprisoned for no reason. That the wounded crew's injury was self-inflicted and so on. 

The captain was arrested for assault and for illegal imprisonment. The crew person who hit the new crew man and knocked him down was arrested for assault. It went to trial. 

In the trial the new crew admitted to pulling a knife, and swinging it, but claimed it was self-defense since the other crew men had threatened him. He claimed the crew person who got cut started to rush him and he only swung the to scare that person, and that the tip of the knife cut the person's clothing and that afterward the crew member cut himself to make it look worse. He claimed that the crew had altered the boat to make him look more guilty and had fabricated a story between them. That the marine police had not been called immediately and so on. 

The legal case against the crewman who struck the new crew was in part based on that fact that the skipper had not ordered the crewman to hit the new crew and therefore being at sea, it was a simple assault. The fact that the skipper had not witnessed the actual knife swing but had the guy tied up, represented a unjustified arrest. There was also a civil suit which additionally claimed that the captain was negligent since the new crew's arm was fractured, and that the captain had failed to assess the condition of the arm, or do anything about it. 

If you followed this in the papers, it was easy for your opinion to swing back and forth as each version of the story was presented, and as new legalities were introduced (i.e. that it was potentially a simple assault if the captain did not authorize the crew to strike the man, or that the captain may have had culpability if he did not instruct the crew-member not to take the second blow that knocked the man down.) 

I don't fully recall how the court cases resolved, but I think that the captain was absolved, the crew man who stuck the man may have been charged with a lesser crime and given probation, but I can't recall for certain. 

The reason I bring this up is that how these stories are told and the information added can paint very different pictures. In this case, we have one version of the story. And at some level it is believable and understandable. From a simple common sense standpoint, many of the captain's decisions can seem justifiable under some specific set of circumstances. How that story gets interpreted, what evidence supports or contradicts, the legalities involved, and whether the actual circumstances do or do not justify the actions involved is another matter, and probably one that we here on SailNet may or may not have adequate information to fairly appraise. 

So while discussing the theoretical aspects of an event such as this makes sense as a learning experience, I suggest that none of us should feel that we can rightly say what should happen in this specific case, nor should we disparage the viewpoints of others if that view is presented as a hypothetical. 

Respectfully, 
Jeff


----------



## Sailormon6

MarkofSeaLife said:


> While we're talking Law... can someone answer me the straight law question:
> 
> Can judges in this type of case - USA Federal court - make a FINDING that forces the government to consider legislation?


There's an old saying among prosecutors that "the best way to get rid of a bad law is to strictly enforce it." When prosecutors enforce an arguably invalid law by bringing a charge against a person, defense lawyers challenge it's validity, and that forces judges to rule on those challenges, and, if a judge declares a provision invalid, that forces the legislature to either re-write it, eliminating it's flaws, or to repeal it.

This is an old law that wasn't used often and, IMO, ought to be revisited by the legislature.

I haven't studied this law enough to decide whether it violates some constitutional standard, and I don't intend to, because I'm retired and don't work that hard anymore, but on the surface it seems to me that there is something fundamentally unfair about subjecting an offender to 10 years in prison for just any act of ordinary negligence. I'll leave it to the lawyers, judge and jury to sort out the true facts in this case. My concern is that the law itself is poorly crafted by modern standards.


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## Sal Paradise

Minnewaska is right on point. The lesson here, which should not be needed, is just to make every reasonable effort to save the crewman's life. 

If purely for legal reasons. If just for your own sake. If for moral reasons, just turn around and search. Call in the location on your Sat phone. Alert the CG. Had the captain donr that, had he thrown out the life ring at the right time, he'd be legally clear. 

It might be a good idea to turn on your camera and record yourself doing this so there is no question.


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## MarkofSeaLife

tempest said:


> This Web Page / Article contains links/images of the 4 pages of the Coast Guard Report that was filed:
> 
> https://www.penbaypilot.com/article...scusses-incident-coast-guard-releases-/111009


Wow!!!!! This is the actual Coast Guard report by one of the investigating officers... not some lame media report. So you'll should read it.

Very interesting is the wind was not 5 knots but on Page 2 of the report says they were sailing close hauled into ENE at 15 to 20 knots.

My boat speed upwind in 15 to 20 is about 6 knots... thats 600 feet per minute. Thats too fast to be able to look down and see if a person is dead imho.

Mark


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## MarkofSeaLife

Sailormon6 said:


> There's an old saying among prosecutors that "the best way to get rid of a bad law is to strictly enforce it." When prosecutors enforce an arguably invalid law by bringing a charge against a person, .


Sorry, thats not at all what I am meaning.

A finding for example "that in future all small boats off shore should have immediate communications equipment" or similar?

Can they make a finding like that?


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## boatsurgeon

I just can't believe that this has gone on so long.

Let's return to base principles.

Fact 1: The skipper is responsible for the safety of vessel and crew.

Fact 2: A crew member illustrated irrefutable signs of a serious medical problem.

Fact 3: The skipper had capability and responsibility of seeking nearest medical attention, but chose not to.

Fact 4: The crew member went overboard.

Fact 5: The skipper had the capability and responsibility of attempting MOB recovery and chose not to.

Fact 6: The skipper had the capability and responsibility to call a Mayday and chose not to.

The preceding conduct of the crew and how or why they went overboard does not alter the skipper's responsibilities; not even one little bit. 

The skipper is not responsible for making every reasonable effort to recover only the MOBs they like; it's any MOB for any reason.

That the vessel was 300 miles from shore does not absolve the skipper of making a VHF radio MayDay call the instant it was determined they could not safely perform MOB recovery. 

There could easily have been another vessel within VHF range that could have assisted and/or performed a MayDay relay on long range communication equipment.

Conclusion: If the information contained in the news article is accurate, the Skipper is guilty of neglect of duty and responsibility, on a vessel he was in charge of, which contributed to the death of a crew member.

Case Closed.

There is no grey area here, unless the facts presented in the news article are false, in which case, there is really nothing to discuss and no possible logical argument otherwise, until the "alternate facts" are revealed.


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## Sal Paradise

MarkofSeaLife said:


> Sorry, thats not at all what I am meaning.
> 
> A finding for example "that in future all small boats off shore should have immediate communications equipment" or similar?
> 
> Can they make a finding like that?


Mark, in the U.S. there is a distinct line between legislators ( lawmakers) and judiciary. Judges merely interpret the law, they can only issue limited orders such as warrants or judgement or orders of protection in association with their cases. A judge could not issue an order that all boats must carry sat comms.


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## Sailormon6

MarkofSeaLife said:


> Sorry, thats not at all what I am meaning.
> 
> A finding for example "that in future all small boats off shore should have immediate communications equipment" or similar?
> 
> Can they make a finding like that?


OK, now I get it.

One of the fundamental principles of Due Process is that, any penal law which a person is accused of violating "...is void for vagueness and unenforceable if it is too vague for the average citizen to understand or if a term cannot be strictly defined and is not defined anywhere in such law. There are several reasons a statute may be considered vague; in general, a statute might be called void for vagueness reasons when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. Criminal laws which do not state explicitly and definitely what conduct is punishable for example are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions." (Wikipedia)

So, the question you're asking is, can a judge make a ruling in a case "that in future all small boats off shore should have immediate communications equipment?" First, the judge has to interpret the law upon which the charge or indictment is laid. He must be able to say that the law, as it is presently written, requires that proper communications equipment must be carried, and that requirement is so clearly spelled out in the law that any average citizen would understand it. If the judge concludes that the law doesn't presently require communications equipment, then the accused can't be convicted for failing to have proper communications equipment.

All here seem to be people of at least average intelligence or above, and if you all aren't sure whether communications equipment is required by the law, then how can you justify punishing the accused for not having communications equipment? How could he have known, before embarking on this passage, that his failure to have communications equipment might result in a 10 year prison sentence? The law must clearly apprise him of it's requirements so that he can know what actions he must take to comply with it.

If the judge decides the law is lacking in clarity, he can't rewrite the law to make it more clear or to add new requirements. Writing laws is the job of the legislative branch. The judge is a member of the judicial branch. The principle of Separation of Powers prohibits him from legislating. He can only interpret the law.


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## tempest

MarkofSeaLife said:


> Very interesting is the wind was not 5 knots but on Page 2 of the report says they were sailing close hauled into ENE at 15 to 20 knots.
> 
> Mark


I saw that too, and initially thought that it was what they were telling him ( the delirious man) 
what the conditions were. Not what they actually were. But, there's no other mention of wind and sea state in the CG report. So why the conflict in the reporting? Between the articles and the CG report. I can't imagine that the writer just made up, the 5 knots and moonlit night story.
10 ft seas and 15-20 knot winds is a huge difference from 5 knots and calm.

I also find the Coast Guard report to be lacking in some basic facts that would typically be of interest to the CG. Such as: Were life jackets available and in use, Jack Lines, Tethers?

Could it be that 300 miles from shore in 10 ft. seas at night, and no one was wearing a PFD? 
I'm sure it happens.


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## Minnewaska

I just read the USCG draft report. First, worth saying, is that the media reports were darn close to the official report. Good on them. The minor differences do not change the substance of the analysis in this thread, IMO.

It's also worth noting, although it has no bearing on the merit of the situation whatsoever, it's remarkably poorly written for a USCG Officer. Slang, statements of fact that are just interview answers, etc. It won't matter in the trial, but I would send that LT back to school.

In any case, this is from the CG investigation last paragraph.....



> The Captain saw him go under and not resurface, and that is why he did not turn back and search plus he was scared to death that if he got back on the vessel he would throw other people overboard. I asked the Captain face to face why he did not throw the EPIRB out with a life ring, and he told me he never even thought about that with all the fear and terror going through his mind.


It is just a summary of the investigation, it doesn't make a conclusion on what should or should not happen to the Captain. That's where the prosecutor and this obscure law comes in. Despite sympathy over the terror, the law doesn't seem to say, "unless the Captain is terrified".

I know for sure, when in the military, if I failed to perform my duty, the fact that I was terrified (and I was often extremely terrified) would not have been a defense. I would suspect the victims family has made that case.

So, my updated take away. Even if terrified, wait until you calm down in a minute or two. Consider that the victim can't launch back aboard alone and turn around and look for them.


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## Don L

Minnewaska said:


> In any case, this is from the CG investigation last paragraph.....


That paragraph sums up my position that at the time sailing away seemed a reasonable action to the captain. No second hand sailing from the comfort of one's settee changes that when the crazy dangerous madman goes over the side, you don't turn back to get him just because you have some misplaced duty to him.

Let me ask the bleeding hearts here a question:

Let's say the captain had turned around and recovered this nut job. The nut job responded just as expected based on past history and had killed one of the other crew members.

Would you now want to charge the captain with the same negligence that he is now facing? Based on the law it seems you should.


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## Minnesail

outbound said:


> Just curious. How many of you would do a passage under this guy?


Even without this whole leaving a crew in the ocean thing, no I would not.

Sail with a gun? Hmm. Maybe. Depends.

Sail with weed? Hmm. Maybe. It's not my boat.

Sail with a guy that likes weed *and* guns? NO!


----------



## Minnewaska

Don0190 said:


> That paragraph sums up my position that at the time sailing away seemed a reasonable action to the captain. No second hand sailing from the comfort of one's settee changes that when the crazy dangerous madman goes over the side, you don't turn back to get him just because you have some misplaced duty to him.
> 
> Let me ask the bleeding hearts here a question:
> 
> Let's say the captain had turned around and recovered this nut job. The nut job responded just as expected based on past history and had killed one of the other crew members.
> 
> Would you now want to charge the captain with the same negligence that he is now facing? Based on the law it seems you should.


It's your right to support his actions, no need to call those that disagree names, like bleeding hearts.

To answer your questions, we don't know if he was a crazy dangerous madman or a mentally ill man, hallucinating from the drugs given to him by the crew. That sums the point really. The Captain doesn't get to be judge and jury. Go back and look for him. Don't bring him back aboard, unless you can subdue him, if you find him violent. Toss him some flotation and stay with him, until help arrives. You just don't get to sentence the victim to death, because you're scared.


----------



## tempest

Don0190 said:


> That paragraph sums up my position that at the time sailing away seemed a reasonable action to the captain. No second hand sailing from the comfort of one's settee changes that when the crazy dangerous madman goes over the side, you don't turn back to get him just because you have some misplaced duty to him.
> 
> Let me ask the bleeding hearts here a question:
> 
> Let's say the captain had turned around and recovered this nut job. The nut job responded just as expected based on past history and had killed one of the other crew members.
> 
> Would you now want to charge the captain with the same negligence that he is now facing? Based on the law it seems you should.


No Need for Name calling Don. I seriously doubt whether I would have even left the dock on this voyage with this gentleman. I know I would have turned around or at least headed for the nearest port after he became seasick 1 to 2 hours into the journey with no improvement in his condition into the next day. That's not a call from an armchair. I can count at least 3 occasions when I've diverted my route to return sick passengers to shore. It's not about being a bleeding heart. It simply doesn't make practical sense to carry an incapacitated person who can't stand a watch and can't contribute to a voyage of this distance, even further off shore. You wouldn't do it. They take up valuable berth space, their constant vomiting creates a nightmare of living conditions, and is completely unsanitary. They are always too sick to clean up after themselves. Then their dehydration leads to even further complications. As I read the Coast Guard Account, what struck me was that this Captain seemed to have his head up is @#$ as this stuff was going on for 3 days. But I could be wrong.


----------



## hpeer

MarkofSeaLife said:


> Wow!!!!! This is the actual Coast Guard report by one of the investigating officers... not some lame media report. So you'll should read it.
> 
> Very interesting is the wind was not 5 knots but on Page 2 of the report says they were sailing close hauled into ENE at 15 to 20 knots.
> 
> My boat speed upwind in 15 to 20 is about 6 knots... thats 600 feet per minute. Thats too fast to be able to look down and see if a person is dead imho.
> 
> Mark


It goes on to say the guy took the wheel and turned Port into the wind, and then the Captain turned back to Starboard. I doubt you boat is doing 6 knots while this kind of tussel is going on.


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## Don L

gee, bleeding hearts are touchy if disagreed with

You people spend too much time dancing around stuff with "if" would" "could", ignoring the "is" "are" "were" parts of the story.

When the guy went over he was a proven clear and continued danger to those on the boat. And I feel from the story he was the core cause regardless if he had some reaction between meds he was on and didn't disclose and ones maybe given to him in order to handle his condition.


----------



## hpeer

tempest said:


> No Need for Name calling Don. I seriously doubt whether I would have even left the dock on this voyage with this gentleman. I know I would have turned around or at least headed for the nearest port after he became seasick 1 to 2 hours into the journey with no improvement in his condition into the next day. That's not a call from an armchair. I can count at least 3 occasions when I've diverted my route to return sick passengers to shore. It's not about being a bleeding heart. It simply doesn't make practical sense to carry an incapacitated person who can't stand a watch and can't contribute to a voyage of this distance, even further off shore. You wouldn't do it. They take up valuable berth space, their constant vomiting creates a nightmare of living conditions, and is completely unsanitary. They are always too sick to clean up after themselves. Then their dehydration leads to even further complications. As I read the Coast Guard Account, what struck me was that this Captain seemed to have his head up is @#$ as this stuff was going on for 3 days. But I could be wrong.


I think that's a reasonable criticism. I've not had to do that but I have sea sick people onboard when the situationn did NOT warrent turning back.

I think there is more going on here that none of us know about. Like why the Captain accepted him as crew in the first place. It's reported he did ask him about drugs and the guy said "no", meaning illegal drugs. But in fact he was taking a cocktail of drugs for various reasons.

There are at least two folks in this dance. Neither one of them is completely clear. I agree the Capt has a certain responsibility, but so does the crew have a responsibility to the Capt and other crew members to present himself accurately.

I find it odd that a supposedly seasoned sailor gets seasick and stays sea sick. I don't understand why the Capt would take a marginal crew along when he already has 2 additional watch standers that he knows well. I can see accepting the 3rd hand if he comes with good credentials, presents himself as up to the task. The shoe thing is weird. Did the Capt explore that? How was it explained to him by the jumper?

There are a thousand questions that need explanation to achieve a true understanding.

While I agree the USCG report lacks some formality it does represent the best knowledge of the event we have from the primary witnesses just after the event. IMHO the final paragraph, which I can't quote here because it's an image, sums it up pretty well. Mistakes were made by both parties resulting in a tragic and highly stressful situation and a death. The report recognizes that the jumper contributed to the situation and was likely not fit for passage. No one should know that better than the jumper himself. No ones perfect, sometimes tragic things happen.


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## Sal Paradise

Something psycho about not going back for the dude. You can see a little bit of craziness in the captain's life ring joke too. Both times he doesn't seem to realize the seriousness....and in the gun and weed instances there is something tragically off in his thinking and judgement.


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## Don L

Sal Paradise said:


> Something psycho about not going back for the dude. You can see a little bit of craziness in the captain's life ring joke too. Both times he doesn't seem to realize the seriousness....and in the gun and weed instances there is something tragically off in his thinking and judgement.


just stress, no special psycho babble required to understand by anyone


----------



## boatsurgeon

Hi Jeff,

IMHO, your post, # 273 was very thorough, thoughtful, contained many valid points, and was a useful contribution to the discussion.

However, I would like to address one paragraph.



Jeff_H said:


> But for all of the abstracted discussion and all of the thought and analysis, it is hard to know what we would actually do when faced with real life. Often there are snap decisions made in the moment, or even initial slower decisions made that make sense at the time, but which do not make sense when viewed in hindsight and with the emotions and tensions of a crisis safely behind us. In hindsight, it is easy to make assumptions about what we should have known at the time, or should have been able to predict, or what might have happened if we chose another course of action at any point along the way.


This is why I ask a skipper what their MOB procedures are before agreeing to crew.

A skipper of this experience and qualification, should be capable of reciting and executing standard MOB procedures, without need for any thought, evaluation, or decision.

The instant the crewmember hit the water, this skipper should have:

1. Yelled "Man Over Board".

2. Tossed the pole and/or ring.

3. Hit the chartplotter MOB button.

4. Assigned a spotter.

5. Evaluated if the vessel could be safely turned around.

6. If not, call a MayDay.

Under the reported conditions, none of this should have required any significant thought process or evaluation whatsoever.

Clearly the skipper was not incompetent, so clearly he was negligent and guilty of manslaughter.

Because all of the actions above should have been automatic, he actually made a conscious decision to let the MOB die.


----------



## Sailormon6

RegisteredUser said:


> What a total goober you are.
> What were you spending this time on before you arrived on this forum?


Just for grins I googled "goober." The Urban Dictionary defines it as: "noun, a term of affection for a lovable, silly, lighthearted person. Always easy to poke fun at without actually meaning harm."

So, don't take offense. He likes you! :grin


----------



## Donna_F

How can I edit out that personal attack if he's actually calling him lovable????

I'll just say stop. Please. I'm about to start Cocktail Friday and I may not be so lenient after a Manhattan or two.


----------



## Minnewaska

Don0190 said:


> gee, bleeding hearts are touchy if disagreed with
> 
> You people spend too much time dancing around stuff with "if" would" "could", ignoring the "is" "are" "were" parts of the story.
> 
> When the guy went over he was a proven clear and continued danger to those on the boat. And I feel from the story he was the core cause regardless if he had some reaction between meds he was on and didn't disclose and ones maybe given to him in order to handle his condition.


Got it, you would continue to call the victim names as you sailed away, because you are scared.

Try to describe exactly how you would see a drowning man, floating in the ocean next to your boat, with flotation, is a clear and continued danger. You've been asked before.


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## Don L

Minnewaska said:


> Got it, you would continue to call the victim names as you sailed away, because you are scared.
> .


I have posted more than once that if I were the captain, as the crew was pulling the nut with his hands around my throat off me that I would have pulled up a winch handle and hit him right in the back of the head.

So, I doubt I would have called him names. But, may have flipped him the bird.

I feel for people with depression and mental illness. But, once they cross the line into being a danger, they are a danger!


----------



## outbound

Don with all due respect I think you got this wrong.

As previously said as captain you have an obligation to end up with as many as you started with period.
Doesn’t matter if you made a bad decision and didn’t do your due diligence in selecting crew. Be it physically or mental or other issues. That’s on you.
Doesn’t matter if you didn’t attend to their medical condition or become aware of medication side effects and appropriately attend to them
Doesn’t matter how you feel about that person.
Doesn’t matter if they present a risk. You should know how to recognize that risk near its inception and how to mitigate that risk.
Doesn’t matter if you were ignorant of how to manage the situation. You are obligated to reach out and ask for help or abort the voyage. 
As stated before from available information this situation where he jumped off the boat should have never reached that point. His culpability predates the suicide. You sail with family from what I understand. I hope if a child or wife started to act irrationally you would investigate and intervene. If uncertain as to how to proceed get outside help or abort the sail.
The issue of the MOB is the final culmination of the captain violating his manifest obligations. Even if he did send out an immediate mayday and stop the boat from available information the captains actions are well below the standards of what any captain should adhere to.

P.S.-I’m no bleeding heart. But I do hold to the belief you are responsible for the consequences of your decisions and actions. You screwed up. You deal with it. Here I think the decisions and actions of this captain contributed to or resulted in a death. Unless profound mitigating factors are presented I continue to hold to that opinion. Perhaps we will need to wait until the trial to see if such factors were operative. But even if this man was recovered and presented a risk (which I find unlikely in his debilitated state) I find it hard to believe he couldn’t be restrained or confined to the forward or quarter berthing area and help called.


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## RegisteredUser

1st card played is usually the Virtuous.


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## Don L

outbound said:


> Don with all due respect I think you got this wrong.
> 
> .


It's OK if you want to try to convince me. But all your "duty" talk is a waste of time. Once a person becomes a danger I'll always chose to take actions as needed to protect others from them before I worry about protecting the dangerous person.

If my poor decision let the wolf into the hen house, I don't afterwards worry about protecting the wolf over the hens. I messed up, all I can do is now deal with it and shoot the wolf.


----------



## midwesterner

Scotty C-M said:


> ...We can learn from this experience. Some day we might have a similar situation and we might appreciate the time we spend here discussing this situation. I still think three things:
> 
> 1. All skippers need to assess the medical conditions of their crew....
> 2. Giving perscription medication might result in side effects....
> 3. Any man overboard situation calls for basic rescue procedures.
> 
> Examining this tragedy should be done with respect to all concerned, but is still an acceptable action. For example, my opinion is that the skipper really failed to take appropriate actions on all three counts.


At the very least, I think it is the responsibility of a skipper to do their best to search for any crew person that goes off their boat. He should have marked the coordinates, abandoned his schedule, and remained on site until the Coast Guard arrives. Even if you're sure that the crew person is dead, the family will appreciate any chance of recovering their body. It seems to me to be a bit like leaving the scene of an automobile accident.

I do not see this post-mortem analysis as bullying, but a learning experience, particularly for those of us who have never been through it.


----------



## Minnewaska

Don0190 said:


> I have posted more than once that if I were the captain, as the crew was pulling the nut with his hands around my throat off me that I would have pulled up a winch handle and hit him right in the back of the head.
> 
> So, I doubt I would have called him names. But, may have flipped him the bird.
> 
> I feel for people with depression and mental illness. But, once they cross the line into being a danger, they are a danger!


You're still dodging the question of how you see this person in the water as still a danger and, therefore, justified that you not turn around and try to locate them.

If you need to use force to defend yourself, during the scuffle, that's fine. As quoted law stated (not sure it's still controlling), you are not obligated to search if you can prove they were dead upon impact. Maybe your winch handle did the job, assuming deadly force was justified.

However, that's not what happened here. The victim jumped voluntarily. Please explain the danger in looking for them, once in the water, otherwise, your position is just vindictive and against the law.


----------



## Don L

Minnewaska said:


> You're still dodging the question of how you see this person in the water as still a danger and, therefore, justified that you not turn around and try to locate them


Not dodging anything. As long as he stays in the water he isn't a threat any longer. So that's where he needs to stay and I'm not giving him a chance to change that.

Is that clear enough for you?


----------



## Sal Paradise

Don0190 said:


> It's OK if you want to try to convince me. But all your "duty" talk is a waste of time. Once a person becomes a danger I'll always chose to take actions as needed to protect others from them before I worry about protecting the dangerous person.
> 
> If my poor decision let the wolf into the hen house, I don't afterwards worry about protecting the wolf over the hens. I messed up, all I can do is now deal with it and shoot the wolf.


So, once someone is on your boat, and out of sight of land - you become their judge, jury and executioner. That's just a given.

I don't think you'll find many here who agree with that.


----------



## Don L

Sal Paradise said:


> So, once someone is on your boat, and out of sight of land - you become their judge, jury and executioner. That's just a given.


What hell are you talking about? Get a grip.


----------



## Donna_F

OK. Come on. The line is getting perilously close. Just cool it.


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## Sailormon6

Sal Paradise said:


> So, once someone is on your boat, and out of sight of land - you become their judge, jury and executioner. That's just a given.
> 
> I don't think you'll find many here who agree with that.


Well, that's flawed logic, Sal. When a person confronts you or another person with a lethal threat, you have a choice. Either you let him carry out that lethal threat or you prevent him from doing so. If you take his life in self defense, or in defense of another, that doesn't make you his "judge, jury and executioner." It just makes you a person who acted out of necessity to protect a life. Self preservation is probably the most fundamental instinct shared by most living creatures.

So, whether you're offshore on a small boat, or sitting on a bar stool in a local tavern, or enjoying a Hootie and the Blowfish concert, if someone confronts you with a lethal threat, you have every right, both morally and legally, to do whatever is necessary to eliminate that threat, including taking the person's life. You don't give up the right of self defense when you become a boat captain.

If you take a life in self defense, you might nevertheless be indicted and prosecuted for a homicide offense. That doesn't mean you were wrong in killing the person. It just means that the police or prosecutor might not agree that killing him was a necessity, and you'll have to defend your actions in court. That appears to be where this case stands.


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## davidpm

I'm old fat slow and am recovering from a shoulder injury and I sure hope I would have enough humanity to at least attempt to find a crazy guy who jumped off my boat no matter how scary he was and make a determination once I found him how much of a threat he was to my boat after swallowing a gallon of salt water.

No way to tell unless you get eyes on him. 

If he came porpoising out of the deep and grabbed the top step of the ladder in one bounce swinging a horseshoe crab by the tail screaming how he is going to slit my throat I would probably smack him on the head with an oar.

If however, he was struggling to breathe and calling for help I would take my chances and help, at least I hope I would.

Since this captain didn't stick around we don't know.

I just did a search on the subject and it appears as if it is possible for someone to fall into the water and fill their lungs with water and sink. I don't know how common this is. I suspect most people bob back up in a few seconds but may only have their backs breaking the water and be hard to see.


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## SeaStar58

And when you as Captain goaded, instigated, bullied, pushed, etc someone past their breaking point so that they finally reacted violently who is guilty of what? The Captain was responsible for this situation due to both his actions to make it worse along with his lack of action to defuse the situation. When everything finally boiled over due to the Captain's behavior toward this man can the Captain really claim self defense and innocence when someone that could be said to have been incarcerated and tortured by the Captain sought desperate means of escaping his captor?

The Captain had ample opportunity to head for the nearest port and tell the man that they were making a beeline straight to the nearest landfall to get him relief, keep on reinforcing that relief was getting closer, that contact had been made and help was on its way. When you have a sick person on board you change your plans regardless of how much it inconveniences or may cost you. The closer they got to port the greater the chances that the Coast Guard could come out to take the man off the boat and more quickly get him treated. Responsible Captains turn around and get assistance for sick people on their boats having them airlifted off if needed.

This Captain had ample opportunity to do the right thing for this man but chose otherwise pushing things too far so regardless of whether the Captain was actually in fear for his life in that final moment it was still all his responsibility and his fault that things escalated to that level. Ultimately it was the Captain that endangered everyone on his boat by pushing this sick man until he became violent in seeking relief.


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## Minnewaska

Don0190 said:


> Not dodging anything. As long as he stays in the water he isn't a threat any longer. So that's where he needs to stay and I'm not giving him a chance to change that.
> 
> Is that clear enough for you?


Again, my question you quoted asked why you wouldn't turn around and try to locate him. I didn't ask why don't bring him back aboard. You could toss him flotation, secure him to a line, wait for help, etc. No, it's still not clear. You just said, he's no longer a threat in the water.

The substance of this thread is whether one had the responsibility to turn around and try. It seems there is a guy with an ankle bracelet, because he didn't.


----------



## hpeer

Minnie,

The way I read the CG report the Captain said he didn’t do more because he saw the guy go down trailing a line of bubbles. At that moment the Captain assessed the situation as the guy being dead. 

That’s why he didn’t turn around, the guy was dead and drowned. For certain. At least that’s the way the Capt saw it.

Not to be trite but when you lean over and your brand new $500 glasses go plop do you turn around? Same thing, what’s done is done. It’s beyond retrieval. You may stand there for a bit in disbelief, stunned, then pissed off and hurt. But done is done. 

I’m just trying to imagine what went on that night. What would have made me carry on. What the circumstances might have been to cause this reaction in a decent human being. And I can find reasonable explanations.


----------



## Minnewaska

hpeer said:


> Minnie,
> 
> The way I read the CG report the Captain said he didn't do more because he saw the guy go down trailing a line of bubbles. At that moment the Captain assessed the situation as the guy being dead.....


That's a critical point. Can one reasonably assess immediate death from drowning, after a body goes overboard, at night, with the boat moving something in the neighborhood of 8-10ft per second? Further, the CG report says there were 10 ft seas.

At the very least, can't we agree no on dies instantly from going underwater? It takes minutes and some have survived hours in cold water. So how long does it take and how far away did the boat get by then. Further, how does one see bubbles coming from a victim's mouth, distinct from the splash. Again, at night.

The prosecution is going to say it's contrived to provide an excuse and a reasonable person on the jury is going to have to decide what to believe.

So, again, the takeaway is to turn around and attempt to recover. This all becomes moot.


----------



## JoeDunn

As I read the posts, article and skimmed the coast guard report the question is, myself included, why didn't the captain turn around? 

Then I remembered crossing the Gulf of Maine, as a crew member, in a NW wind at 15-20 knots and sailing close hauled heading east in about an eight foot sea state at night with some moon light. I barely could see what was going on in the cockpit let alone in the water. 

So now if I imagine putting myself on the boat during a struggle/fight at night, the guy I'm fighting goes overboard, first I must have to catch my breath, then furl in the head sail and jibe the main and hopefully get someone else from down below in the cockpit. At this point you'd be broad reaching or nearly downwind surfing the 10-foot sea looking for someone...What about the safety of the others on the boat? 

Now I ask myself do I keep the sailing my original course for the safety of the others and slow my speed looking for someone in the water. The person in the water will likely drown very soon...not sure if that happened but from a learning perspective...I'm still not sure what I would do when I think about the actual sea state and others on the boat.


----------



## Don L

It's only moot to those who believe their way of looking at it is correct.


----------



## outbound

We flew home to be with my youngest daughter as she’s to give birth shortly. During passage a wave took the LifeSling off the rail so today buying another one. Also buying rope to replace the third reef clew line
By the logic of some these are silly purchases. As captain I don’t have an obligation to make my boat as safe as possible and do what I can to deal with even unlikely contingencies by this logic. I feel I do. 

Gee my crew doesn’t have personal AIS/GPS/epirb so I can’t find them
Gee I never got a MOM8 or equivalent so I can’t find them
Gee I can’t control my boat in a seaway so I can’t find them
Gee I don’t have SSB or satphone or inreach or Spot or Go so I can’t get help

I continue to believe it is the captains obligation that his boat is appropriately outfitted and prepped for passage. That his conduct ensures the safety of his vessel and crew. The man who jumped was crew. It’s ridiculous to believe he presented a risk when being dragged out of the water. It seems reasonable from available information to believe the captain did not meet his obligations as captain.i see no problem if you are solo. You want to risk your life have a good time. But once you take on crew

You are responsible to keep them safe and alive.


----------



## Sal Paradise

Sailormon6 said:


> Well, that's flawed logic, Sal. When a person confronts you or another person with a lethal threat, you have a choice. Either you let him carry out that lethal threat or you prevent him from doing so. If you take his life in self defense, or in defense of another, that doesn't make you his "judge, jury and executioner." It just makes you a person who acted out of necessity to protect a life. Self preservation is probably the most fundamental instinct shared by most living creatures.
> 
> So, whether you're offshore on a small boat, or sitting on a bar stool in a local tavern, or enjoying a Hootie and the Blowfish concert, if someone confronts you with a lethal threat, you have every right, both morally and legally, to do whatever is necessary to eliminate that threat, including taking the person's life. You don't give up the right of self defense when you become a boat captain.
> 
> If you take a life in self defense, you might nevertheless be indicted and prosecuted for a homicide offense. That doesn't mean you were wrong in killing the person. It just means that the police or prosecutor might not agree that killing him was a necessity, and you'll have to defend your actions in court. That appears to be where this case stands.


So you are saying the Captain let him drown in self defense.

I'm not going to address the comments about taking someone's life at a Hootie and the Blowfish concert,except to say legally you cannot use any amount of force if someone confronts you. You cannot beat a guy to death who took a swing at you. You can use the MINIMUM amount of force necessary. If pushing a guy against s wall neutralizes him you CANNOT then beat him to death with a lead pipe.

The problem with self defense in this case is two fold; first, he is not a threat treading water out in the ocean. So that defense goes away. You circle back, throw him a life ring, lower the dingy. The guy is ill, mentally ill. Call for help. At lest you attempt those things. Its your crewman out there and he is sick. Second, the captain ( or person on watch) either takes on a special responsibility for the safety of crew or he doesn't. The law says he does. That responsibility doesn't go away if a crew member gets sick or misbehaves.

I think this captain is really unfit and this episode just revealed his flaws. Even now he seems to not understand the issue. If he said that he was simply stunned by the attack and too slow to react because he was in shock, and when he came to his sense he was too far away to turn around - and this may actually be the case - that's his best defense legally. But to make the full jump to letting him drown because he was a threat, is from a legal standpoint - risky. Maybe he has the same misconception you do about use of force.

Why did the captain throw the life ring into the water when the CG flew over?


----------



## MarkofSeaLife

hpeer said:


> The way I read the CG report the Captain said he didn't do more because he saw the guy go down trailing a line of bubbles. At that moment the Captain assessed the situation as the guy being dead.
> 
> That's why he didn't turn around, the guy was dead and drowned. For certain. At least that's the way the Capt saw it.
> 
> I'm just trying to imagine what went on that night. What would have made me carry on. What the circumstances might have been to cause this reaction in a decent human being. And I can find reasonable explanations.


This is the crux of the issue that is going to be decided by the Jury and as they wont be a seafaring jury I hope they are well instructed.

Someone said in an earlier post: "There is no grey area here". Bulltwaddle! Theres an ocean of grey area! And thats going to be extremely interesting to hear not just the result but all the evidence. From the moment this guy set foot on the boat till dope went overboard there is a thousand questions that are either relevant to the Captains fate, or to the future good management of small boats at sea.

Some things not retailed to the Captain but could/should be legislated to all small offshore craft (imho):
Obligatory EPIRBs (maybe personal PLBs)
Obligatory instant communications (not incl HF or VHF), maybe Satellite or whatever technology of the future, Spot, phone, email, direct contact with AMVER etc etc
Obligatory AIS and personal AIS for each crew
Obligatory auto MOB alarm like the Raymarine one that each crew carries and alarm rings, Auto Pilot stops, when a crew separates from the boat.
Obligatory First Aid kit with better drugs.
Legislation on tethers, or MOB slings, lines etc
Better understanding that mental health issues dont mean an abrogation of responsibility.
Better side-effects labelling of seasickness drugs
Better methods of employing crew. Written application CC'd to the Coast Guard?
Clearing out searches by CBP (Currently there are NONE in the USA!!!)

and much more. Or maybe they will just let us go on as they have.

My feelings are theres much more than a discussion re the right and wrong of each point in this incident... the discussion is how to make it better in the future


----------



## jtsailjt

Don0190 said:


> It's only moot to those who believe their way of looking at it is correct.


Does anyone think their way of looking at anything is incorrect? If they did, I would think they would adjust their way of looking at it. That's how I look at it anyway! :wink


----------



## jtsailjt

outbound said:


> During passage a wave took the LifeSling off the rail so today buying another one.
> By the logic of some these are silly purchases. As captain I don't have an obligation to make my boat as safe as possible and do what I can to deal with even unlikely contingencies by this logic. I feel I do.
> 
> Gee my crew doesn't have personal AIS/GPS/epirb so I can't find them
> Gee I never got a MOM8 or equivalent so I can't find them
> Gee I can't control my boat in a seaway so I can't find them
> Gee I don't have SSB or satphone or inreach or Spot or Go so I can't get help
> 
> I continue to believe it is the captains obligation that his boat is appropriately outfitted and prepped for passage. That his conduct ensures the safety of his vessel and crew. The man who jumped was crew. It's ridiculous to believe he presented a risk when being dragged out of the water. It seems reasonable from available information to believe the captain did not meet his obligations as captain.i see no problem if you are solo. You want to risk your life have a good time. But once you take on crew
> 
> You are responsible to keep them safe and alive.


I agree about the Captain having primary responsibility to keep everyone safe to the best of his ability but I don't think that means he must equip his boat with every safety gadget available or be held liable for negligence. Lots of boats don't have SPOT's, etc. and I don't think all those captains are negligent.

How did a wave cause you to lose your Lifesling? Wasn't it secured to your boat?


----------



## mstern

MarkofSeaLife said:


> This is the crux of the issue that is going to be decided by the Jury and as they wont be a seafaring jury I hope they are well instructed.
> 
> Someone said in an earlier post: "There is no grey area here". Bulltwaddle! Theres an ocean of grey area! And thats going to be extremely interesting to hear not just the result but all the evidence. From the moment this guy set foot on the boat till dope went overboard there is a thousand questions that are either relevant to the Captains fate, or to the future good management of small boats at sea.
> 
> Some things not retailed to the Captain but could/should be legislated to all small offshore craft (imho):
> Obligatory EPIRBs (maybe personal PLBs)
> Obligatory instant communications (not incl HF or VHF), maybe Satellite or whatever technology of the future, Spot, phone, email, direct contact with AMVER etc etc
> Obligatory AIS and personal AIS for each crew
> Obligatory auto MOB alarm like the Raymarine one that each crew carries and alarm rings, Auto Pilot stops, when a crew separates from the boat.
> Obligatory First Aid kit with better drugs.
> Legislation on tethers, or MOB slings, lines etc
> Better understanding that mental health issues dont mean an abrogation of responsibility.
> Better side-effects labelling of seasickness drugs
> Better methods of employing crew. Written application CC'd to the Coast Guard?
> Clearing out searches by CBP (Currently there are NONE in the USA!!!)
> 
> and much more. Or maybe they will just let us go on as they have.
> 
> My feelings are theres much more than a discussion re the right and wrong of each point in this incident... the discussion is how to make it better in the future


I agree that we should all try and learn from this, but I don't think it likely that this event will spur the legislation you seek Mark. What you are proposing is a serious regulatory entry into what has always been a strictly recreational past time here in the USA; and however tragic the outcome was in this case, it is just one case. I don't think it points to a large scale problem that justifies the intrusion of the legislature here.

I believe that the majority of American blue water sailors would vehemently disagree with all of your proposals. The overwhelming sentiment that I see on this site and others is that sailors go offshore to get away from rules, regulations and the government in general; they seek an activity that requires them to be self-sufficient and independent. Having to get permission from the government to leave port? Not going to happen; the boating community wouldn't stand for it. Frankly, neither would the Coast Guard. They don't have the proper resources to do the job they have now; I cannot conceive of a situation where they would sit by and not object to having to put personnel in every port in America, just to inspect or do paper work every time someone wanted to take their boat out of sight of land.

The framework we have now: civil liability (notwithstanding this criminal outlier case) for captains making sure they are properly prepared and outfitted, seems to be working in general. I am unaware of other cases where lack of equipment, training or other circumstances have lead to deaths or problems at sea. And I think that's probably the best we can hope for.


----------



## Arcb

MarkofSeaLife said:


> Some things not retailed to the Captain but could/should be legislated to all small offshore craft (imho):
> Obligatory EPIRBs (maybe personal PLBs)
> Obligatory instant communications (not incl HF or VHF), maybe Satellite or whatever technology of the future, Spot, phone, email, direct contact with AMVER etc etc
> Obligatory AIS and personal AIS for each crew
> Obligatory auto MOB alarm like the Raymarine one that each crew carries and alarm rings, Auto Pilot stops, when a crew separates from the boat.
> Obligatory First Aid kit with better drugs.
> Legislation on tethers, or MOB slings, lines etc
> Better understanding that mental health issues dont mean an abrogation of responsibility.
> Better side-effects labelling of seasickness drugs
> Better methods of employing crew. Written application CC'd to the Coast Guard?
> Clearing out searches by CBP (Currently there are NONE in the USA!!!)


Slightly off topic, or maybe not. But this is what I don't get about the European CE ratings. They could go a long way to addressing a bunch of the issues you mention above, but they remain silent on a lot of issues regarding electronics, gear and procedural issues.

The result being that you can get a boat that is supposedly rated for all oceans, but might be lacking something as basic as sat comms, jacklines or a halfway to decent first aid kit.


----------



## Don L

jtsailjt said:


> Does anyone think their way of looking at anything is incorrect? If they did, I would think they would adjust their way of looking at it. That's how I look at it anyway! :wink


that was a good word twist at the end, did you plan that :grin


----------



## Don L

Arcb said:


> Slightly off topic, or maybe not. But this is what I don't get about the European CE ratings. They could go a long way to addressing a bunch of the issues you mention above, but they remain silent on a lot of issues regarding electronics, gear and procedural issues.
> 
> The result being that you can get a boat that is supposedly rated for all oceans, but might be lacking something as basic as sat comms, jacklines or a halfway to decent first aid kit.


That's because the CE rating is about the boat, not the people on it


----------



## Arcb

jtsailjt said:


> I agree about the Captain having primary responsibility to keep everyone safe to the best of his ability but I don't think that means he must equip his boat with every safety gadget available or be held liable for negligence. Lots of boats don't have SPOT's, etc. and I don't think all those captains are negligent.


Pretty much all that stuff is legislated on commercial vessels that venture offshore, so its not really that much of a stretch.

I see a bit of a parallel between this incident and the Chiki Rafiki boat. I think the Chiki Raffiki boat was run more or less as a charter boat in the Carribean in the winter and UK in the summer. When it was on charter it met the legislated requirements for the commercial voyage it was on, but during the delivery it was treated as a yacht, because the cost to bring it up to commercial standards for an offshore delivery was I guess considered uneccessary. However, that boat, much like this boat appears to have been, was driven hard as though it was still in comercial service on its delivery.

I dont know if the semi commercial nature of this boat and the skippers comercial licencing will or should come in to play in the court case, but it did come into play with the Chiki Rafiki.


----------



## Sailormon6

Sal Paradise said:


> So you are saying the Captain let him drown in self defense.


No. I was responding to your claim that "...once someone is on your boat, and out of sight of land - you become their judge, jury and executioner." It's a shallow, overused rhetorical argument that is designed to make the other participant in the discussion feel bad about himself, but it doesn't address the issues. Legally one has a right to use such force as is necessary, including lethal force, on anyone who confronts him with lethal force.

A person who kills in self defense is not literally a judge or an executioner. One must be regularly elected or appointed as a judge or executioner. Likewise one must be chosen to be a juror. Using that phrase is a rhetorical stunt that doesn't contribute anything substantive to the discussion.



> I'm not going to address the comments about taking someone's life at a Hootie and the Blowfish concert,except to say legally you cannot use any amount of force if someone confronts you. You cannot beat a guy to death who took a swing at you. You can use the minimum amount of force necessary. If pushing a guy against s wall neutralizes him you cannot then beat him to death with a lead pipe.


 That isn't what I said. I'm very precise in my writing. If you ignore an occasional word or two when you read it, you distort my whole meaning. I'll quote from my previous post: "if someone confronts you with a lethal threat, you have every right, both morally and legally, to do whatever is necessary to eliminate that threat, including taking the person's life." See, we agree completely. As you said, "If pushing a guy against s wall neutralizes him you cannot then beat him to death with a lead pipe." When you distort what I clearly said, then I have to waste time correcting you, and we haven't contributed anything thoughtful to the discussion.



> The problem with self defense in this case is two fold; first, he is not a threat treading water out in the ocean. So that defense goes away. You circle back, throw him a life ring, lower the dingy. Call for help. At lest you attempt those things. Its your crewman out there and he is sick. Second, the captain ( or person on watch) either takes on a special responsibility for the safety of crew or he doesn't. The law says he does. That responsibility doesn't go away if a crew member gets sick or misbehaves.


No, the problem with self defense in this case is that it isn't a case of self defense. When the guy made a lethal attack on the captain, the captain didn't shoot him, or stab him, or bash his head with a blunt instrument. That would have raised a self defense claim. What happened is that the guy jumped overboard, which constitutes suicide. The captain didn't assault him in any way or take any action calculated to shorten his life. What the captain is being faulted for here is his inaction in making no attempt to prevent him from succeeding in his effort to commit suicide. That's a novel question, and you can see all the arguments pro and con here.

You obviously think the law is clear on this subject. If it is, then there will be a written statute or court decision or scholarly legal treatise somewhere that says so, and I challenge you to provide it. Honestly, I think it's safe to say that the judge who will have to decide this case will have to struggle mightily with all the same pros and cons that we are discussing. His burden will be to find a decision that gives full meaning to the law itself, if possible, that is fair to the accused, that protects the rights of other captains who might hereafter be similarly situated, and protects the rights of all members of the crew, now and in the future.


----------



## mstern

Don0190 said:


> That's because the CE rating is about the boat, not the people on it


This. And as was gone over well beyond the breaking point in this thread:

https://www.sailnet.com/forums/boat...tegory-production-boats-blue-water-boats.html


----------



## Sal Paradise

Sailormon6 said:


> No. I was responding to your claim that "...once someone is on your boat, and out of sight of land - you become their judge, jury and executioner." It's a shallow, overused rhetorical argument that is designed to make the other participant in the discussion feel bad about himself, but it doesn't address the issues. Legally one has a right to use such force as is necessary, including lethal force, on anyone who confronts him with lethal force.
> 
> A person who kills in self defense is not literally a judge or an executioner. One must be regularly elected or appointed as a judge or executioner. Likewise one must be chosen to be a juror. Using that phrase is a rhetorical stunt that doesn't contribute anything substantive to the discussion.
> 
> That isn't what I said. I'm very precise in my writing. If you ignore an occasional word or two when you read it, you distort my whole meaning. I'll quote from my previous post: "if someone confronts you with a lethal threat, you have every right, both morally and legally, to do whatever is necessary to eliminate that threat, including taking the person's life." See, we agree completely. As you said, "If pushing a guy against s wall neutralizes him you cannot then beat him to death with a lead pipe." When you distort what I clearly said, then I have to waste time correcting you, and we haven't contributed anything thoughtful to the discussion.
> 
> No, the problem with self defense in this case is that it isn't a case of self defense. When the guy made a lethal attack on the captain, the captain didn't shoot him, or stab him, or bash his head with a blunt instrument. That would have raised a self defense claim. What happened is that the guy jumped overboard, which constitutes suicide. The captain didn't assault him in any way or take any action calculated to shorten his life. What the captain is being faulted for here is his inaction in making no attempt to prevent him from succeeding in his effort to commit suicide. That's a novel question, and you can see all the arguments pro and con here.
> 
> You obviously think the law is clear on this subject. If it is, then there will be a written statute or court decision or scholarly legal treatise somewhere that says so, and I challenge you to provide it. Honestly, I think it's safe to say that the judge who will have to decide this case will have to struggle mightily with all the same pros and cons that we are discussing. His burden will be to find a decision that gives full meaning to the law itself, if possible, that is fair to the accused, that protects the rights of other captains who might hereafter be similarly situated, and protects the rights of all members of the crew, now and in the future.


As you are so very precise and accurate you will not doubt understand that CONTEXT is important. You aren't correcting me, you just haven't connected all the dots. You connect only the dots you want to. Judge jury and executioner is very accurate in this specific case. The captain judged the person to be a threat, he then sentenced him to death when he failed to turn the boat around. Nothing cheap or rhetorical about it, it needs no further accuracy or out of context examples of Hootie and The Blowfish concert misbehavior.


----------



## Arcb

mstern said:


> This. And as was gone over well beyond the breaking point in this thread:
> 
> ]


Yes, there is significant room for improvement on the CE system.

Standards are updated all the time.

All I was saying is it could be updated to include more robust requirements for offshore communications equipment. The core document was established in 1998, there have been quite a few improvements in personal satellite communications since then.


----------



## Minnewaska

Let’s remember, the victim jumped overboard, he wasn’t thrown over in self defense. When your attacker stops beating you and walks away, it is illegal and immoral to shoot them in the back. Some think it’s their right to do so, which is disturbing.


----------



## Minnewaska

Don0190 said:


> It's only moot to those who believe their way of looking at it is correct.


We're discussing how this law looks at it. We all gather you have no legal defense for your stated intent to sail away and it seems this Captain may not either. Trying makes it moot, whether you find the victim or not.


----------



## john61ct

To me, mandatory equipment is a complete derail of this thread's topic.

It should be my right to head out RTW in a coracle with a bag of jerky if I like, no electrickery or gadgets at all,

and to take on passengers & (healthy) crew if they're willing to risk it.

But I should as captain be held to a very stringent standard of duty of care for their welfare **within** my means and equipment available.


----------



## Don L

Minnewaska said:


> "We"


you appear to be able to confuse the word "we" with the word "me"

No matter how many times you try to reword your position of endangering the remaining crew and boat it isn't going to product different results and your continued belief that it may just may suggest some crazy.

BTW - in your save the proven dangerous guy who jumped overboard world, which crew member are you choosing to lean over the side and pull him (at 230 pounds) back into the boat or go put him in the dinghy?

I've got lots of free time and keep at this for day/weeks so will wait your next wordy response of "legal" stuff. Whatever this "legal" might mean as apparently I'm the judge!


----------



## Minnewaska

Don, go find your glasses, I’ve not suggested you have to bring him back aboard. I’ve even said not to, if he’s still dangerous. It’s pretty clear. You’re just avoiding a mistake you’ve made in your logic.


----------



## john61ct

Yes, again if proper care was followed he would likely never have jumped.

Mishandling the MOB was a very minor part of his crimes.


----------



## Don L

Minnewaska said:


> I've not suggested you have to bring him back aboard.


Wait, maybe I'm not understanding.

You say go look for him and when you find him, what?? Wave and piss on him, but hey you went and looked?


----------



## Minnesail

Don0190 said:


> Wait, maybe I'm not understanding.
> 
> You say go look for him and when you find him, what?? Wave and piss on him, but hey you went and looked?


Well, if you still think he's a threat throw him floaty things and maybe some fresh water. Mark the location and contact the Coast Guard.

The value of human life has changed remarkably over time. Life was cheap a couple hundred years ago. These days we value it a bit higher and even try to save people who attempt suicide or overdose on drugs or do dangerous stunts.

Except, of course, for people who attend Hootie concerts. They are worth little to nothing.


----------



## Arcb

john61ct said:


> To me, mandatory equipment is a complete derail of this thread's topic.


We have a difference of opinion on this. I think communications equipment is very Central to the topic.

If modern communications equipment had been employed, this might have turned out very differently.

If the CG had been contacted immediately, they very likely would have directed the vessel to remain on scene and likely would have provided a search patern for them to follow and had a Hercules on scene with night vision and FLIR equipment within hours. At that point they would have only had to follow directions until released from the search.

If directions had been followed, there may have been a pretty solid defence with regards to actions taken during the search in officially induced error. By not contacting the CG, the skipper adopted the legal risk that otherwise would have been carried by the CG search coordinator.

An inreach is like $600, a SPOT X is $300.


----------



## john61ct

Yes but "equipment X will save lives" does not - to me - equate to "you're not allowed to go to sea if you can't afford X"

And my main point is that this thread topic is complex and nebulous enough already, just about the **actions expected** of a captain.

The "requiring hardware" deserves its own thread and diverts too much.

Now, I completely agree that he should have used what he had, but to me his negligence **before** the MOB was much more serious.


----------



## hpeer

Some interesting twists to the conversation from what IS required to what SHOULD BE required. 

My understanding is this Capt has what is affectionately known as a “6 pack” license. This is the lowest bar and allows you to take no more than 6 people on an uninspected boat. It is the license I have and all holders are subject to random drug tests. It requires you to have so many days of “sea time” and pass a rules knowledge test. There is truly nothing about the competency of the person or, IIRC, MOB procedures or ethics. Been a while so someone correct me if it’s changed. Just for perspective, the test is a darn site harder than a drivers license. 

So on the one hand the Capt should reasonably know MOB procedures. But he is NOT required to know or practice them. 

AS to safety devices the USCG report does not ding him on them. He is NOT required to carry SSB or SAT or anything beyond a VHF (if that). So he has no legal jeporday on those points. You may not like it but he will be tried on the law as it stands the day of the event. 



As to what gizmos should be mandated I’ll leave to another thread. I think that could be a worthwhile discussion. Frankly I think a defibrillator would save more liblves than a life raft, but that’s a different round of drinks. What’s relevant to THIS discussion is that the guy seems to have had and done all the required necessities.


----------



## SeaStar58

john61ct said:


> Yes, again if proper care was followed he would likely never have jumped.
> 
> Mishandling the MOB was a very minor part of his crimes.


Exactly - If the situation had been handled appropriately from day one there would have been no sick man suffering for days on a boat, attacking anyone or jumping overboard. This was and still is all on the Captains head since he was the one solely responsible for enabling this to get this far out of hand.

Who allowed a crew member that was suffering so badly from edema that he could not put his shoes on board his boat as a worker? The Captain.
Who trapped a sick man who was getting progressively worse on a boat heading out to sea for three days? The Captain and no one else. 
Who failed to get the sick man proper medical attention when it was relatively easy? Again it was the Captain.
Who then caused the attack? The Captain.
Who endangered the boat and all hands on her? The Captain.
Who failed to rescue the man that he drove to jump over the side? The Captain.

You really can't escape that from the day this man was recruited to work on this boat it was the Captain who allowed this to all happen even though it was primarily his responsibility as Captain to prevent these things from even becoming remotely possible. One could argue the finer points of law that specifically apply here or whether after the Captain caused all this to happen could get the man that he traumatized through his own poor behavior safely back on the boat however the Captain was the root cause of the situation that culminated in a human life being lost.


----------



## outbound

Was a bit sporty attached as usual with the three Velcro loopyand cover over the rail. Tether tied to the rail. Got beaten repeatedly by the seas and gone. The actual sling was recovered.


----------



## hpeer

Minnewaska said:


> That's a critical point. Can one reasonably assess immediate death from drowning, after a body goes overboard, at night, with the boat moving something in the neighborhood of 8-10ft per second? Further, the CG report says there were 10 ft seas.
> 
> At the very least, can't we agree no on dies instantly from going underwater? It takes minutes and some have survived hours in cold water. So how long does it take and how far away did the boat get by then. Further, how does one see bubbles coming from a victim's mouth, distinct from the splash. Again, at night.
> 
> The prosecution is going to say it's contrived to provide an excuse and a reasonable person on the jury is going to have to decide what to believe.
> 
> So, again, the takeaway is to turn around and attempt to recover. This all becomes moot.


The Capt, the man on the spot, made an assessment. Now of the considered opinion that it takes a very rare person to wake up in the morning and say "Today is a good day to murder someone." Yet murder, and manslaughter happens on a regular basis. Premeditated murder is rare, it usually is because (at least) someone made a series's if bad decisions that brought them to a crisis.

Clearly the Capt. did not murder someone, at worst he did not attempt to thwart a suicide. I think its pretty safe to assume that, barring euthanasia, folks who commit suicide have some serious mental issue.

So we have the Capt. who needs to assess the situation. He has just been accosted in the middle of the night by a much larger person, he crew is terrified. He sees the guy go over, and puts the spotlight (he had just taken it from the jumper) on him and sees him disappear with a not unsubstantial head wound.

At that moment, with the adrenaline racing, he makes a call and decides to move on. This is not premeditated. The guy jumped. It's at worse a failure to attempt aid, which the Capt thought was a useless julesture.

Would it have been better if he had done a MOB manuver? Sure. But I wasn't there. I'm pretty sure the Capt would have rather been about anyplace on Earth than there at that moment. I think the Capt did what he thought was right for the crew, his boat, and himself at the moment.

I'm of a mind to cut this guy a lot of slack. I think that was also the conclusion of the USCG report.

Just one brief diversion on the topic of personal responsibility. Outside the USCG report very little has been said about the jumpers personal liability to care for himself. The jumper was in he very best of positions to make this event not happen by not going on the trip. But he made many very bad decisions, clearly before the trip, and then his thinking seems to have gone from bad to worse.

How many folks here, taking the list of meds this guy had, think it was OK for him to sign up for the trip? Sure the Capt was not perfect, but to some extent he was also set up by the jumper.

In the call for additional regulations I hear a call for the government to regulate even more aspects of our life so as to make us safe from ourselves. That will never happen we find more newer and better ways to off ourselves all the time. Simply look to the opioid crisis in the USA. You want to assign negligence to folks then ansubstantial nibernif our physicians hold far more negligence than this Capt.

Recreational sailing is a bastion of personal freedom that is fading from our lives. Yup there are risks, but the other risk is of having the Nanny State controlling your every move. Out on the water we are temporarily our own masters, free from the state and society. To have that taken from us by loading folks with endless certifications and safety devices would be a crime against my soul if not others.


----------



## john61ct

hpeer said:


> There is truly nothing about the competency of the person or, IIRC, MOB procedures or ethics. Been a while so someone correct me if it's changed. Just for perspective, the test is a darn site harder than a drivers license.
> 
> So on the one hand the Capt should reasonably know MOB procedures. But he is NOT required to know or practice them.


Not by the licensing requirement.

But he certainly is, and far greater duty of care obligations are required **according to the law**, both explicit written de jure and the evolved, de facto / common law.

Which any skipper is legally bound by, regardless of any licensing issues.


----------



## hpeer

john61ct said:


> Not by the licensing requirement.
> 
> But he certainly is, and far greater duty of care obligations are required **according to the law**, both explicit written de jure and the evolved, de facto / common law.
> 
> Which any skipper is legally bound by, regardless of any licensing issues.


You've got me there. I've no idea what you are talking about. No joking, no sarcasm. If you can fill that in I'd appreciate it.

Frankly I would be surprised if that were true because if it were they would not have had to dig up this old obscure law they charged him under.


----------



## jtsailjt

hpeer said:


> My understanding is this Capt has what is affectionately known as a "6 pack" license. This is the lowest bar and allows you to take no more than 6 people on an uninspected boat. It is the license I have and all holders are subject to random drug tests. It requires you to have so many days of "sea time" and pass a rules knowledge test. There is truly nothing about the competency of the person or, IIRC, MOB procedures or ethics. Been a while so someone correct me if it's changed. Just for perspective, the test is a darn site harder than a drivers license.
> .


Also, a six pack license has no meaning offshore, it's only valid in near coastal or inland or Great Lakes waters.


----------



## davidpm

The following fictional dialog just popped into my mind.

Davidpm: Hi captainX I see you are looking for crew for a crossing next month. I might be your man I was looking to get away for a couple weeks.
CaptainX: Yes sure what are your qualifications:
Davidpm: XXX, XXX ,XXX
CaptainX: That sounds perfect, I think this might work out. It is three weeks from Sunday.
Davidpm: That sounds good for me too. Just a quick question, do you ever post on sailnet?
CaptainX: Yes I do why do you ask
Davidpm: No particular reason, just hoping to put a name to some of the folks I share stories with. What is your handle if I may ask.
CaptainX: I post under the handle YYYYY
.............. A slight delay while typing
Davidpm: Oh you said three weeks from Sunday. I'm sorry I forgot I have an oil change appointment. You know how hard they are to book, I'll have to pass.


----------



## john61ct

Old and obscure most laws are, especially the common law, that does not make them any less the law.


----------



## Minnewaska

Don0190 said:


> Wait, maybe I'm not understanding.
> 
> You say go look for him and when you find him, what?? Wave and piss on him, but hey you went and looked?


You're being stubborn. I said, throw him floatation. Tether him to the ship. Call for help. This isn't hard, you must simply be slow.


----------



## hpeer

john61ct said:


> Old and obscure most laws are, especially the common law, that does not make them any less the law.


But still, what law, other than the one he is being prosecuted under, applies here. What ordinance did he break?

Not trying to make a point, at least not yet.

I think if there was some other law then he would have been charged with that.

PS: I googled "old obscure law" and found this. ( We need some humor here)

https://www.legalzoom.com/articles/top-craziest-laws-still-on-the-books

Not in that list is this beaut:
In NYC it is illegal to own any knife if you are not a U.S. citizen

https://knifeup.com/new-york-knife-laws/

But back in thread; I recently read an article in gCaptain how, because of injuries due to fighting amongst crew members, many commercial insurers are now requiring Owners to ban knives. Apparently this is on big commercial ships. It came up because a boat had to be abandoned, the crew got into the life raft or dink, but could not cut the cord. Luckily a rescue boat came by in time. No one in the raft, including Capt, had a knife.

Now that's not a "law" but a commercial edict. But it would seem to me to go against some "law if the sea."

It all gets very confusing.


----------



## Don L

Minnewaska said:


> You're being stubborn. I said, throw him floatation. Tether him to the ship. Call for help. This isn't hard, you must simply be slow.


Maybe you are just simply an a.. since you now want to call names oh high and mighty drag the guy around behind the boat person. That's just stupid,


----------



## hpeer

Sounds like due diligence to me, for Capt OR crew.


----------



## Don L

hpeer said:


> Sounds like due diligence to me, for Capt OR crew.


beyond sailing forums, I would want to read someones facebook postings before I'm trapped on a boat with them


----------



## Arcb

hpeer said:


> But still, what law, other than the one he is being prosecuted under, applies here. What ordinance did he break?


There doesnt need to be another law. The seamans manslaughter is the law.

In order to prove there was some kind of crime there needs to be a violation of the statute; for example was there negligence or inattention to duty?

How does one prove negligence? It needs to be proved that a standard of care was not met.

How is the standard of care established? It isnt in a prescriptive ordinance, it will come from different sources; case law, expert testimony, , documented procedures, available records, establishing what a reasonablee person would have done under similar circumstances.

There doesnt need to be a bunch of other violations. The question is whether a reasonable level of care taken to prevent this outcome. Who knows what stone will be looked under to establish the standard of care.


----------



## Minnewaska

Don0190 said:


> Maybe you are just simply an a.. since you now want to call names oh high and mighty drag the guy around behind the boat person. That's just stupid,


No one said anything about dragging. Nice try.

We know you'll sail away in the scenario we're discussing. I hope all your passengers know it too.


----------



## Don L

Minnewaska said:


> We know you'll sail away in the scenario we're discussing. I hope all your passengers know it too.


I'll add it to my brief:

"If you go all crazy and attack the captain or crew and then jump off the boat, you are on your own!"

I guess for others you should add to your brief:

"If you go all crazy and attack the captain or crew and then jump off the boat, we will try to recover you and give you another chance at us!"


----------



## boatsurgeon

JoeDunn said:


> As I read the posts, article and skimmed the coast guard report the question is, myself included, why didn't the captain turn around?
> 
> Then I remembered crossing the Gulf of Maine, as a crew member, in a NW wind at 15-20 knots and sailing close hauled heading east in about an eight foot sea state at night with some moon light. I barely could see what was going on in the cockpit let alone in the water.
> 
> So now if I imagine putting myself on the boat during a struggle/fight at night, the guy I'm fighting goes overboard, first I must have to catch my breath, then furl in the head sail and jibe the main and hopefully get someone else from down below in the cockpit. At this point you'd be broad reaching or nearly downwind surfing the 10-foot sea looking for someone...What about the safety of the others on the boat?
> 
> Now I ask myself do I keep the sailing my original course for the safety of the others and slow my speed looking for someone in the water. The person in the water will likely drown very soon...not sure if that happened but from a learning perspective...I'm still not sure what I would do when I think about the actual sea state and others on the boat.


All we have to ask ourselves is:

A) To what degree does the skipper have to like someone to be responsible for bringing them back to shore safe and sound?

B) Is the skipper responsible for attempting MOB recover only if someone accidentally falls vs purposefully falls overboard?

If your answer (without requiring any thought at all) to A and B is it does not make one IOTA of difference, I would consider crewing on your boat.

If you really don't know what you would do under these circumstances, remind me to never, ever, ever crew on your boat.

You obviously don't consider crew the precious cargo that they are, that you as skipper are solely responsible for returning to shore safe and sound.

These responsibilities are not only true on a calm day under perfect circumstances. They are true UNDER ALL CONDITIONS.

If the boat can be safely turned around (and that boat could in those conditions without question) you turn around for MOB recovery.

PERIOD.

There is no debate.

And even if the skipper decided the risk to the crew and vessel for MOB recovery attempt was too great (it wasn't), what is his excuse for not throwing a floatation device overboard, and calling a MayDay?

Answer: There is absolutely none.

A crew member faced certain death, because of the skippers actions and lack of actions.

There is no debate or grey area.

Whether the crew member was the poster child vs satan of crew, and whether they purposefully jumped vs slipped, does not make one IOTA of difference, with respect to the skipper's responsibilities.

The skipper was responsible for making every reasonable attempt to get the crew member back aboard and failing that to call for assistance.

He didn't.

Guilty of negligence and dereliction of duty, contributing to a death.

Case Closed.


----------



## outbound

Will say people need to take personal responsibility for their decisions and actions. I’m 100% against any legislative action requiring any equipment or training requirements on any vessel which is non involved in commercial activities. Period.
I view all levels of US captaincy below the commercial merchant marine all ocean as nearly worthless. I similarly view ASA or similar training as having no predictive value in offshore performance. I say this as a result of past experience and not in a vacuum.
Equipment constantly changes. Legislators and “experts” often have little real world experience of cruising life and small yachts. It will be unlikely to be current. Furthermore what’s suitable and practical on a BCC28 v a Outbound 46 v a Besteaver 53st v a HR 64 maybe entirely different. On passage I’ve had no reception from the SSB at times, the Satphone at time and no one in VHF range. Are you going to go after someone who didn’t charge the spot/go/inreach when battling a storm for 3 days?
No, you shouldn’t go to sea unprepared and unskilled. But it should be on you to decide what that means. You should be responsible for your decisions. Crew has a responsibility to not board a unprepared boat or captained by a unprepared or unsuitable captain but at the end of the day just like the naval captain being ultimately responsible it’s on the small boat captain to prep his boat and choose his crew.


----------



## hpeer

Arch,

Several posters have stated or insinuated that there is some “law” that was broken. In context it reads like somenlaw other than the one he has been charged with. 

I’m just asking for clarification on what that law is.

I’ve asked here and I’ve asked elsewhere so far nothing. So I’d appreciate something specific and relevant to this incident. Just so I know what the laws are and can review them. Sounds like a reasonable request.


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## RegisteredUser

There needs to be date set.
At that time, polls are taken from this forum, other forums, and social media to determine the Cap's fate.
Its the new way, better modern way.
Get involved.
You can make a difference.


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## Sal Paradise

hpeer said:


> Arch,
> 
> Several posters have stated or insinuated that there is some "law" that was broken. In context it reads like somenlaw other than the one he has been charged with.
> 
> I'm just asking for clarification on what that law is.
> 
> I've asked here and I've asked elsewhere so far nothing. So I'd appreciate something specific and relevant to this incident. Just so I know what the laws are and can review them. Sounds like a reasonable request.


https://en.wikipedia.org/wiki/Seaman's_Manslaughter_Statute


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## Arcb

Hpeer, I missed that. I didnt read anything about any other charges.


----------



## boatsurgeon

Another point to consider.

We are accepting the skipper's statements regarding the MOBs behaviour, sequence of events, and that he "jumped" overboard, as fact. 

The dead guy isn't here to tell his side of the story. 

IMHO, the credibility of their statements are highly questionable, since they clearly tried to hide evidence and delayed calling it in.

IMHO, a more likely reason for not turning around, not tossing a life ring, not calling a MayDay, and tossing a weapon overboard, is because the skipper new the guy was shot dead, before tossing him and the weapon overboard, didn't want either to be recovered, and spent the next 32 hours concocting a story and collaborating with the other crew, while cleaning up the evidence, before calling it in.


----------



## RegisteredUser

boatsurgeon said:


> Another point to consider.
> 
> We are accepting....


Who are your cohorts that make up We?


----------



## Sailormon6

boatsurgeon said:


> Another point to consider.
> 
> We are accepting the skipper's statements regarding the MOBs behaviour, sequence of events, and that he "jumped" overboard, as fact.
> 
> The dead guy isn't here to tell his side of the story.
> 
> IMHO, the credibility of their statements are highly questionable, since they clearly tried to hide evidence and delayed calling it in.


You can theorize to your heart's content, and concoct fictional alternate narratives, but the only actual evidence you have to work with is the testimony of the people who were on the boat at the time. Any alternate theories are mere unfounded fantasies.

You're right, "The dead guy isn't here to tell his side of the story." You're never going to hear his side of the story. It's unavailable. He's dead. That's an inescapable fact. To those of us who have actually prosecuted homicide cases, that doesn't come as a huge surprise. That's just the way it works in a homicide case. You have to work with whatever evidence you have.


----------



## boatsurgeon

Sailormon6 said:


> You can theorize to your heart's content, and concoct fictional alternate narratives, but the only actual evidence you have to work with is the testimony of the people who were on the boat at the time. Any alternate theories are mere unfounded fantasies.
> 
> You're right, "The dead guy isn't here to tell his side of the story." You're never going to hear his side of the story. It's unavailable. He's dead. That's an inescapable fact. To those of us who have actually prosecuted homicide cases, that doesn't come as a huge surprise. That's just the way it works in a homicide case. You have to work with whatever evidence you have.


Well, you seem to be implying that you personally have prosecuted a homicide cases.

And I absolutely concur that one has to work with the evidence available.

If so, in your professional experience, how likely is it that the skipper's story is 100% accurate?

Do you just take it all as fact?

Or do you challenge the skipper's statement and test it for truth?


----------



## Sailormon6

If you have evidence, either physical or testimonial, to dispute the skipper's statement, then you can dispute it. If you don't, then you have to treat it as true. If you were accused of a crime, you wouldn't want someone to use cockamamie theories, rumors and assumptions to deprive you of your liberty. It shouldn't be easy for a prosecutor to deprive an accused of ten years of his life.


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## MarkofSeaLife

It's funny you guys are going on about 'evidence' *before* we've got to the trial   

Not that I've prosecuted toooooo many murder cases in the USA, but my guess is the judge and jury go in with blank minds open to whatever is going to be presented to them. 

I doubt 3 normal people like the surviving ones could lie, about one of them shooting the victim, under good cross examination. 

But I will chuck in something that struck me as highly whacco: the language used by the USCG investigator. 
Did he give the Captain a Pass because of a personal belief? Would a harsher interigation have been warrented? 

I don't know. 

But if I was writing a novel Who Done It I would have been pleased because we are all turning the pages!

This is a terribly sad and tragic case. It is full of twists and turns. 

Mark


----------



## Minnewaska

The media reports seemed to have a few more details than the USCG investigation summary. I didn’t recall reading about the gun and pot being tossed overboard in the CG report. Unless they made them up out of thin air, someones been talking and that is likely to be with the prosecutor as well. No doubt that a prosecutor heard more details and felt that a wrong was done, or they wouldn’t be pursuing it. I doubt they want a 10 year sentence, they’re just trying to dispense justice for the family of the victim.


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## Sailormon6

The gun and pot are irrelevant. First, possession of them on a private yacht in international waters is probably not a crime, as long as the pot is for personal use and not for sale. An American citizen still has a right to keep and bear arms, so possession of the firearm is legal. Secondly, there's no claim that the firearm played any part in the scuffle or death, so it's irrelevant to the investigation. While the boat was in international waters, possessing them was not a crime, but possession of both might very well become a crime when the boat arrived and entered a foreign jurisdiction.

No inference should be made that the disposal of the items constituted a consciousness of wrongdoing or a destruction of evidence, because they weren't used in the commission of a crime and thus weren't evidence, and possession of them wasn't wrong until the boat entered a foreign jurisdiction. By disposing of them, the captain was simply ensuring that he wouldn't be committing a crime in the future, when he entered a foreign jurisdiction. That was a good move on his part. If the investigators asked him about it, he should have admitted it, because that action was legal, and lying about it to a fed would get him in trouble.

Why weren't they mentioned in the CG report? Because they were irrelevant. Investigators avoid including irrelevant facts in their reports. Why? Because they don't contribute to the investigation, they waste the investigator's time in typing them, and waste the prosecutor's time in reading them. Including irrelevancies, such as what the captain had for breakfast, shows that the investigator doesn't know what is important and what is not. It suggests to the prosecutor and others that the investigator needs a refresher course in report writing.


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## Sal Paradise

Yeah I can see that - basically if you have a case based on testimony then the other things might not be that critical to the prosecution.But I bet they are mentioned in the original internal reports. If the testimony supports a case based on say... a failure to rescue, then you won't need to bring up those other things. A lot of time has passed and by the process of elimination, I would suppose the case is probably based entirely on testimony of the Captain and crew.


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## MarkofSeaLife

Sailormon6 said:


> The gun and pot are irrelevant. First, possession of them on a private yacht in international waters is *probably *not a crime, as long as the pot is for personal use and not for sale.
> 
> ...the disposal of the items constituted a consciousness of wrongdoing or a destruction of evidence,
> 
> Why weren't they mentioned in the CG report?


Hang on just 1 second....

You say: "The gun and pot are irrelevant". But then you talk for 3 long, detailed paragraphs of why they might be relevant!!!

[my editing of your quote and added emphisis to give clarity  ]

Mark


----------



## hpeer

Sal Paradise said:


> https://en.wikipedia.org/wiki/Seaman's_Manslaughter_Statute


Sal,

Thanks for that link.

I do believe it is the ONLY chargeable statue.

Back in the "steamboat days" there were some truly horrendous accidents killing large numbers of party goers. Tempers were hot, revenge was running high, and ther was much pressure to "do something."

I'm unclear about this proviso:



> The Seaman's Manslaughter Statute, codified at 18 U.S.C. § 1115, criminalizes misconduct or negligence that result in deaths involving vessels (ships and boats) on waters in the jurisdiction of the United States.[1][2] The statute exposes three groups to criminal liability:


Because he was 300 miles off shore was he "in the jurisdiction of the United States"? Is this because it was a US flagged vessel and you are always therefore within its jurisdiction?


----------



## MarkofSeaLife

More on Sailormon6's excellent point: Why wasnt the gun and pot mentioned in the USCG report?

Irrelevant;
CG Officer didnt ask;
Captain didnt inform? Why not? Wouldnt the investigating officer have said at the end: "is there anything else you should tell em"?


If a lawyer wanted to call in question the USCG report as a whole couldn't he use that attempting to say the investigation wasnt good enough? Or the report not good enough?


Its an area for the judge to decide if its going to be admissible to the jury. isn't it?

And it also goes back to that idea someone suggested: If I was being harassed by a murderous 250 pound muscle man that scared the crikey out of me and I had a gun on board don't you think I would have it loaded and in my pocket?
Conversely, if I didn't have the gun in my pocket after a day of being harassed, why not? Whats a gun for if not to protect the crew? But if I didn't think the situation was that serious why couldn't I turn around, pick up the MOB and point the gun at his and tell him to be tied up or Id shoot him?

Is it sounding more like an action novel or am I going crazy? 


Mark


----------



## Arcb

The logical explation for the pot and the gun not being in the USCG summary is that they were not known about at the time the the document was written. The incident took place on October 25th nd the document was dated November 2, thats a pretty quick turnaround.

The report isnt titled report, its titled "Investigation Summary", which leads me to beleive there is a more complete report.


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## Sailormon6

MarkofSeaLife said:


> Hang on just 1 second....
> 
> You say: "The gun and pot are irrelevant". But then you talk for 3 long, detailed paragraphs of why they might be relevant!!!
> 
> [my editing of your quote and added emphisis to give clarity  ]
> 
> Mark


I said the pot and gun were irrelevant, and took 3 paragraphs to explain why they were irrelevant.

You pointed out that I said "...possession of them on a private yacht in international waters is *probably* not a crime, as long as the pot is for personal use and not for sale." Previously I said I choose my words carefully. This is one of those instances. I said the pot was *probably* not a crime, because the facts don't reveal how much pot he had. If it was a small amount for personal use, it was probably not a crime. Since I don't know for sure that the pot was only for personal use, I used the word "probably."


----------



## boatsurgeon

Sailormon6 said:


> The gun and pot are irrelevant. First, possession of them on a private yacht in international waters is probably not a crime, as long as the pot is for personal use and not for sale. An American citizen still has a right to keep and bear arms, so possession of the firearm is legal. Secondly, there's no claim that the firearm played any part in the scuffle or death, so it's irrelevant to the investigation. While the boat was in international waters, possessing them was not a crime, but possession of both might very well become a crime when the boat arrived and entered a foreign jurisdiction.
> 
> No inference should be made that the disposal of the items constituted a consciousness of wrongdoing or a destruction of evidence, because they weren't used in the commission of a crime and thus weren't evidence, and possession of them wasn't wrong until the boat entered a foreign jurisdiction. By disposing of them, the captain was simply ensuring that he wouldn't be committing a crime in the future, when he entered a foreign jurisdiction. That was a good move on his part. If the investigators asked him about it, he should have admitted it, because that action was legal, and lying about it to a fed would get him in trouble.
> 
> Why weren't they mentioned in the CG report? Because they were irrelevant. Investigators avoid including irrelevant facts in their reports. Why? Because they don't contribute to the investigation, they waste the investigator's time in typing them, and waste the prosecutor's time in reading them. Including irrelevancies, such as what the captain had for breakfast, shows that the investigator doesn't know what is important and what is not. It suggests to the prosecutor and others that the investigator needs a refresher course in report writing.


I think you missed the point.

The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was.

Part of that lack of evidence could be because it was used in a crime and disposed of.

The other part to the lack of evidence was due to the testimony of the captain and crew, and there is direct evidence that they concocted a story containing lies.

I believe it would be wise to interrogate the crew further as to why the weapon was disposed of.

It doesn't make sense.

By law, the captain is responsible for returning the deceased crews belongings to their family (or designated person).

Why throw the weapon overboard? All they had to do was declare it at the next port, as belonging to the lost crew member (if that was really the case.)

One reason for not declaring / relinquishing the gun at the next port, is if the gun was used in a crime. Then tossing it overboard would be a good solution to destroy evidence of wrong doing. (Like tossing the life-ring overboard long after the MOB event to claim or appear as it was used as part of MOB recovery procedure.

Clearly the skipper was trying to hide wrong doing. Who's to say tossing the gun overboard was not also to hide wrong-doing.

If I were investigating, the crew would be interrogated for quite some time, to determine if the gun had been recently fired.


----------



## SeaStar58

Arcb said:


> The logical explation for the pot and the gun not being in the USCG summary is that they were not known about at the time the the document was written. The incident took place on October 25th nd the document was dated November 2, thats a pretty quick turnaround.
> 
> The report isnt titled report, its titled "Investigation Summary", which leads me to beleive there is a more complete report.


Yes the Summary would be the Birds Eye over view and not the detailed report. The original statements and affidavits along with the investigators notes will be in the file folder with all the data that was recorded. In a modern records management system it would also all be transcribed into a database for easy retrieval and cross review. I was a police consultant working on their data systems and the more complete ones even contain whether the person had access to restrooms, water, etc and not just data about the case. Yes people have claimed health issues such as colitis later on due to not having access to restrooms, drinking water, etc when they were held for questioning.

It will not be a shocker that when they see the full details of the other crew members affidavits along with their testimony under oath that some parts of their stories may change drastically.

The crew members were not in agreement about a number of points leading up to the final act of desperation when the man jumped off the boat and as previously mentioned it only takes one coming clean about what really happened to get the rest singing like canaries. There was enough conflict between the original statements made by the crew members to show something more was going during those days over which things escalated from bad to worse. As Arsenio would put it on his show "Things That Make You Go Hmmm?".

The rule of thumb generally holds true that while two may hold it together and cover things up, when three are involved one is more likely to break down and tell the whole truth causing one or more of the rest to do similar.


----------



## RegisteredUser

Col Mustard, in the Study, with Candlestick


----------



## hpeer

Here is a more detailed review of how the statute has been used in the past.

https://www.blankrome.com/siteFiles/publications//490C53F432B10A6F13741CE1A4E43E6C.pdf

Two things strike me.

All previous prosecutions were involving paid captains and crew. This case is strictly recreational. The capt did charter the boat but was not on charter at the time of the incident.

All previous prosecutions were for events clearly within USA territorial waters. This boat was 300 nm off shore.

I'm not convienced this statute is applicable. If it IS applicable then it certinaly raises the threat to anyof us for any injury on any boat at any time. There is almost no incident where a life is lost at sea that could not be traced to some oversight, some "negligence." I'm not sure it need me to be a death, merrily some accident that incapacitated a person to some vague degree.

Anyway, interesting reading.


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## Arcb

H, Federal law of the vessels nation of Registry apply on the high seas. This is true of both aircraft and vessels on the water.

Otherwise anarchy would prevail.

Heres an article with an explanation.

https://people.howstuffworks.com/cruise-ship-law1.htm


----------



## john61ct

RegisteredUser said:


> Col Mustard, in the Study, with Candlestick


tiresome and unhelpful


----------



## Don L

MarkofSeaLife said:


> Is it sounding more like an action novel or am I going crazy?
> 
> Mark


yes :|


----------



## Sailormon6

MarkofSeaLife said:


> More on Sailormon6's excellent point: Why wasnt the gun and pot mentioned in the USCG report?
> 
> Irrelevant;
> CG Officer didnt ask;
> Captain didnt inform? Why not? Wouldnt the investigating officer have said at the end: "is there anything else you should tell em"?


If the investigator asked that question, the correct answer would be "No." The investigation was about the death of the crew member. The gun and the pot weren't involved in that investigation. They were irrelevant. He had no obligation to tell them about anything that had no bearing on the offense in question. In fact, he really didn't have to say anything.



> If a lawyer wanted to call in question the USCG report as a whole couldn't he use that attempting to say the investigation wasnt good enough? Or the report not good enough?


Lawyers can dispute anything, including whether or not the sky is blue. That's why they get the big bucks. Prosecutors don't worry about whether a lawyer might dispute something. They assume the lawyer will dispute everything. The prosecutor just has to be prepared to respond to whatever allegations the lawyer makes.



> Its an area for the judge to decide if its going to be admissible to the jury. isn't it?


 Yes.



> And it also goes back to that idea someone suggested: If I was being harassed by a murderous 250 pound muscle man that scared the crikey out of me and I had a gun on board don't you think I would have it loaded and in my pocket?
> Conversely, if I didn't have the gun in my pocket after a day of being harassed, why not? Whats a gun for if not to protect the crew? But if I didn't think the situation was that serious why couldn't I turn around, pick up the MOB and point the gun at his and tell him to be tied up or Id shoot him?


Logically, if the captain felt threatened, he probably would have armed himself. Some of you guys are assuming that the guy was acting wild and crazy for 2-3 days. It's more likely that he was in his bunk, weak and puking most of that time. Wouldn't that be consistent with your experience with seasick people? Maybe he had all he could take and rushed into the cockpit and attacked the captain without warning. Maybe that was the first indication that he might be violent. My experience suggests that the captain's defense lawyer will probably put forward a narrative similar to that. He'll probably say the guy kept reassuring the captain that he'd get over the seasickness in another day, so that's why the captain didn't turn back. Who knows? That narrative, or something similar, might even be true. 



> Is it sounding more like an action novel or am I going crazy?


 Do you really want to ask these forum members for their opinion of your state of mental health? I wouldn't! :grin


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## Don L

maybe we should just tar and feather, keelhaul, and make walk the plank the captain and crew who didn't have the benefit of this 13 page thread of twisting law, mortals. ethics, pity, hindsight, etc that will soon be next year's hit Lifetime movie of the week


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## mstern

boatsurgeon said:


> The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was.
> 
> Part of that lack of evidence could be because it was used in a crime and disposed of.
> 
> The other part to the lack of evidence was due to the testimony of the captain and crew, and there is direct evidence that they concocted a story containing lies.


My goodness, you really do have it in your mind that something well and truly sinister happened on board, whether there is evidence to prove it or not. There is so much here to unpack; let's start with the first statement:

The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was.

This kind of thinking turns the American legal justice system on its head. Prosecutors are required to show evidence; the burden of proof is on the state to show that a crime was committed and that the defendant did it beyond a reasonable doubt. Lack of evidence is NEVER evidence. Any other viewpoint would essentially require a defendant to prove his innocence. This is the exact opposite of our criminal justice system.

And I am puzzled by this statement:

"...there is direct evidence that they concocted a story containing lies."

What exactly is this direct evidence? I don't recall seeing or reading anything that could be construed as evidence that contradicts the three stories. You may not believe the stories because they don't hang together for you (or as one judge used to put it in his standard jury charge, "the testimony should have the ring of truth for you"), but son, that ain't evidence. In this case, evidence that the three surviving members are lying would be something like another witness who said they contacted them by radio and said something different than what the crew said in their statements; or if a reconstruction of the decedent's fall overboard showed that there was no physical way he could have hit his head on the way down. Or anything that someone could get up on the witness stand and say they saw or heard. The only other witnesses I remember the prosecution saying they were going to call were experts who will take a dim view of the Captain's actions with respect to his actions towards the crew members. I don't recall seeing anything that contradicts any statements about what happened on board.

As I've said before, I intend to wait for the trial and the sworn testimony before I judge the Captain here. For those of you who see a murder at sea with a grisly cover-up, I just don't get it.


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## tempest

The indictment is sealed, but from what I've read elsewhere, the Charges are related to the actions or in-actions, immediately after the guy jumped overboard. 

At the end of the day, the outcome will likely rest on the credibility of the witnesses: The Captain, and the two surviving crew members. 
If they were all in shock and terror after the attack, ( which is quite understandable) and if they are convincing enough that the guy was injured in the jump and sank out of sight with little hope of recovery. " There's nothing we can do" Then it might go well for the Captain.

I've seen two accounts of the weather. One: Calm, 5 knots of wind, moonlight night. The other: 10' seas and 20 knot winds. The weather router should be able to confirm. I think that fact will play an important role in the outcome.


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## caberg

mstern said:


> My goodness, you really do have it in your mind that something well and truly sinister happened on board, whether there is evidence to prove it or not.


If I was an attorney involved in this case, I'd be very interested in learning why people are getting this feeling. Because just like many of the forum members here, jurors really don't care about the rules of evidence. Yes, the jurors will be given instructions from the judge about how to consider the evidence and reach a decision, but none of that makes much sense to them, even if they do listen to the instructions after hearing however many days of testimony droning on. Ultimately, like the forum members here, they are going to go with gut feelings formed from a few highlights that stand out for them during the trial. So, personally, I wouldn't be so dismissive of the thought that something truly sinister happened on this boat. I'd want to know what is giving rise to that feeling. Because if people here on an internet forum are feeling that way, I'd be very worried if I was this captain or part of his defense team.


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## Minnesail

Don0190 said:


> beyond sailing forums, I would want to read someones facebook postings before I'm trapped on a boat with them


How many cat pictures would it take to be a deal breaker?


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## Sailormon6

boatsurgeon said:


> I think you missed the point.
> 
> The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was.


 That's the best reason I can think of.



> Part of that lack of evidence could be because it was used in a crime and disposed of.


 When we prosecute a person for a serious crime, it can have disastrous consequences for the accused, his job. his family and even his mental health. Ethical, experienced prosecutors don't put a person through that meat grinder based on theories of what could be. Evidence is what wins trials, not unprovable theories.



> The other part to the lack of evidence was due to the testimony of the captain and crew, and there is direct evidence that they concocted a story containing lies.


 What evidence is there that the witnesses concocted a story?



> I believe it would be wise to interrogate the crew further as to why the weapon was disposed of.


 What do you think it will take to force them to "break down" and confess? Rubber hoses or waterboarding?



> It doesn't make sense.


 Maybe it would make sense if you knew what the prosecutor knows. The only information you have is what was in the news media and the CG reports. The prosecutor has undoubtedly interviewed all the witnesses who were willing to talk to him. He knows things that aren't in those reports.



> By law, the captain is responsible for returning the deceased crews belongings to their family (or designated person).


 The boat is probably impounded. The captain probably isn't permitted aboard. People won't be allowed to retrieve their shorts and t-shirts until after the trial and appeals are concluded. Sadly, the captain probably won't get his boat back for several years, even if he's acquitted, and meanwhile it won't be maintained.



> Why throw the weapon overboard?


 I explained that previously.



> One reason for not declaring / relinquishing the gun at the next port, is if the gun was used in a crime.


 What crime would that be? What evidence is there that it was used in any crime?



> Clearly the skipper was trying to hide wrong doing. Who's to say tossing the gun overboard was not also to hide wrong-doing.


 Think about it this way. Let's say I'm prosecuting the case, and I want to try to prove that the captain tossed the gun overboard to hide wrong-doing. What witness can I call to the witness stand to testify to that? Does the CG report quote any of the crew members as having made such a statement? What crime involving the gun was he trying to hide, and did that crime have relevance to the death of the crewman?


----------



## Sal Paradise

It is interesting how different poster minds work. Some imagine a desperate battle for your life, others a written transcript or law. It seems to me common sense and decency would have solved the problem, no? And just common sense should still serve; the captain could argue he was afraid for his life and for his crew. He could argue that he was too in shock to react. Or that conditions were too poor to attempt recovery. I think none of those satisfy common sense... if we look at the role of the captain as the legal authority with responsibility to enact the rescue.

They have a case because he did not turn around. That's all they need. It would be a fascinating turn if the gun and weed were central to the case, but I think it just makes me mistrust the whole situation. Like something was really off. 

I tend to feel sympathy for the captain. Except when I picture that poor sick guy treading water watching the boat sail away. 
That is really not reasonable or sane in my book, except in the aforementioned cases.


----------



## mstern

caberg said:


> If I was an attorney involved in this case, I'd be very interested in learning why people are getting this feeling.


I agree. That's why I asked Boatsurgeon why he thought there was direct evidence contradicting the captain and crews' stories. So far, I've seen some good questions concerning some specifics of the narratives, but not much more. Most people here seem skeptical, as well as logically critical of the captain's actions. I share in those feelings, even if I'm less willing to convict him here without knowing the full story.

That's not what would concern me as a defense attorney. What would concern me are the small percentage who seem be veering off into the murder/cover up realm with no evidence to support that kind of theory. Frankly, there always have been and always will be those who are prone to see cover-ups and nefarious goings-on when given the slightest pretext. If I'm the defense lawyer here, I'm doing my best to make sure my client doesn't have anyone like that on his jury.


----------



## RegisteredUser

Sailormon6 said:


> ......
> What do you think it will take to force them to "break down" and confess? Rubber hoses or waterboarding?
> 
> ........


Thats a good one


----------



## Don L

Minnesail said:


> How many cat pictures would it take to be a deal breaker?


a lot more than the number of pictures of dogs!


----------



## hpeer

Arcb said:


> H, Federal law of the vessels nation of Registry apply on the high seas. This is true of both aircraft and vessels on the water.
> 
> Otherwise anarchy would prevail.
> 
> Heres an article with an explanation.
> 
> https://people.howstuffworks.com/cruise-ship-law1.htm


OK, got that. Here is the difference. From Wiki:



> The Seaman's Manslaughter Statute, codified at 18 U.S.C. § 1115, criminalizes misconduct or negligence that result in deaths involving vessels (ships and boats) on waters in the jurisdiction of the United States.[1][2] The statute exposes three groups to criminal liability:


The statute EXPLICITLY limits itself to "on waters in the jurisdiction of the United States." This happened outside those waters so this law has no standing.


----------



## hpeer

WARNING: THREAD DRIFT 

Or not, maybe, anyway I was thinking how CORROSIVE this whole discussion is to our community and mutual respect for one another. Basically we are a bunch of relatively respectable FOGs (fat old guys) who like to mess around with boats, talk boats, dream boats, and generally have a good time away from the **** hole, mortgage, car payment, idiot boss routine. Boating is our addiction or at least diversion, a place that keeps us sane and connected with other like minded people. This is a COMMUNITY. 

Its true the community, through this event, has suffered a kind of collective loss. No one hear likes this story, it does nothing to add to the allure of our fantasies. 

It is corroding the trust and commaradirie between us, making us fearful and suspicious. Talking about background checks before sailing with someone? Really? Sure stuff happens, somewhere, sometime, someone will be an idiot, and put two together on a bad day and this kind of thing happens. But it’s NOT the daily reality we know and love. And shame on us if we let this kind of nanny state, “we control you for your own good” mentality take over our community. 

Sorry, rant out!


----------



## Arcb

hpeer said:


> OK, got that. Here is the difference. From Wiki:
> 
> The statute EXPLICITLY limits itself to "on waters in the jurisdiction of the United States." This happened outside those waters so this law has no standing.


Okay, interesting, because the wording of the actual statute seems to read:

*Every captain, engineer, pilot, or other*personemployed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any*person*is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any*person*is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.

When the*owner*or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any*person*is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.*

I wonder if the wiki article specifies US jurisdiction because wikipedia is an international database. So, for example, as a Canadian, it would not apply to me on my boat on the high seas, because the US has no jurisdiction on my boat on the high seas, but certainly would on the boat in question. However, if my boat was in US waters, as it frequently is, then the US would have jurisdiction.

https://www.law.cornell.edu/uscode/text/18/1115


----------



## boatsurgeon

mstern said:


> My goodness, you really do have it in your mind that something well and truly sinister happened on board, whether there is evidence to prove it or not. There is so much here to unpack; let's start with the first statement:
> 
> The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was.
> 
> This kind of thinking turns the American legal justice system on its head. Prosecutors are required to show evidence; the burden of proof is on the state to show that a crime was committed and that the defendant did it beyond a reasonable doubt. Lack of evidence is NEVER evidence. Any other viewpoint would essentially require a defendant to prove his innocence. This is the exact opposite of our criminal justice system.
> 
> And I am puzzled by this statement:
> 
> "...there is direct evidence that they concocted a story containing lies."
> 
> What exactly is this direct evidence? I don't recall seeing or reading anything that could be construed as evidence that contradicts the three stories. You may not believe the stories because they don't hang together for you (or as one judge used to put it in his standard jury charge, "the testimony should have the ring of truth for you"), but son, that ain't evidence. In this case, evidence that the three surviving members are lying would be something like another witness who said they contacted them by radio and said something different than what the crew said in their statements; or if a reconstruction of the decedent's fall overboard showed that there was no physical way he could have hit his head on the way down. Or anything that someone could get up on the witness stand and say they saw or heard. The only other witnesses I remember the prosecution saying they were going to call were experts who will take a dim view of the Captain's actions with respect to his actions towards the crew members. I don't recall seeing anything that contradicts any statements about what happened on board.
> 
> As I've said before, I intend to wait for the trial and the sworn testimony before I judge the Captain here. For those of you who see a murder at sea with a grisly cover-up, I just don't get it.


You are misunderstanding.

"The only reason to believe the weapon was not used in a crime is due to lack of evidence that it was."

I'm not suggesting to charge or prosecute without evidence, I am suggesting to investigate for further evidence.

Because the body and weapon were disposed, the only real evidence to prove the gun was involved, would be if the gun or body could be recovered (unlikely thanks to the lack of MOB procedure and delay to call it in) or one of the people aboard changed their statement indicating the gun was used.

Because the gun and body were irretrievable, I would spend considerable time interrogating the crew, as to who threw the gun overboard and why, why no MOB procedure was employed, and why it took 32 hours to call it in.

Ask yourself this question, "If the story really went down as presented, why not throw the MOB a life ring, call a MayDay immediately, and turn the MOB's belongings, gun, and weed over to the authorities?

It simply doesn't add up.

There is something fishy about the skipper's story; I can smell it, even over the interweb.

1. Couldn't turn the boat around. (BS, not a problem at all in reported conditions.)

2. The guy immediately sank. (BS, unless he was completely naked with an anchor tied around his ankles.)

3. Saw the guy exhaling bubbles so not worth MOB procedure. (BS, in conditions you can't turn that boat around, you sure aren't going to be able to distinquish exhale bubbles from clothing trapped air bubbles. In reality, you wouldn't see the guy within a second after he hit the water.)

4. Didn't call a MayDay because we didn't have SSB. (BS, a VHF call could be relayed and you know it.)

5. Tossed the guys gun and weed overboard. (BS, whose gun was it really, why toss it overboard if it was really the guys, that would contribute to credibility he was shady if he snuck it aboard, whereas turning over the guys weed and gun to the authorities, after finding it, would add to the skipper's credibility.)

There are just too many issues that a normal and reasonable person would do differently. Why didn't the skipper act normal and reasonable? Because it didn't go down as he stated and he's trying to cover it up.

Can one prosecute on a hunch?

Someone could change their testimony under oath, under pressure.

But one can certainly seek out evidence based on a hunch before hand.

Go after the crew.

I bet the skipper is lying through his teeth in attempt to save his butt.

There is just too much of their statements that doesn't add up, given the boat, the conditions, and the experience of the skipper.


----------



## boatsurgeon

mstern said:


> I agree. That's why I asked Boatsurgeon why he thought there was direct evidence contradicting the captain and crews' stories. So far, I've seen some good questions concerning some specifics of the narratives, but not much more. Most people here seem skeptical, as well as logically critical of the captain's actions. I share in those feelings, even if I'm less willing to convict him here without knowing the full story.
> 
> That's not what would concern me as a defense attorney. What would concern me are the small percentage who seem be veering off into the murder/cover up realm with no evidence to support that kind of theory. Frankly, there always have been and always will be those who are prone to see cover-ups and nefarious goings-on when given the slightest pretext. If I'm the defense lawyer here, I'm doing my best to make sure my client doesn't have anyone like that on his jury.


Based on the statements the skipper attempted to hide the fact that the life ring was not deployed, by throwing it overboard after the fact, (which could be argued is tampering with evidence) and explaining to crew that it was to deceive investigators (conspiring at the very least).

Based on this, can we take the skipper's statement at face value why he didn't perform a MOB procedure, immediately call it in, or why he disposed of the MOBs belongings by tossing them overboard.

NO.

Who would do that?

NOBODY.

There is something wrong with the story.

I believe, based on what I've read, that the skipper is guilty of manslaughter.

I suspect, he may be guilty of even more.

I don't know, I'm just saying there could be more to it.

I did not say once that he should be charged with and prosecuted for murder, because the gun is missing.

I said that in my mind, it warrants serious questioning of the one-sided statement, why the gun was tossed overboard, and why other actions that should have reasonably been performed weren't.

For any experienced skipper, even in shock after a traumatic event, who is capable of keeping the boat on course, should be equally capable of turning it around, and it should be a knee-jerk reaction requiring no thought what-so-ever, the instant a crew member, even a psycho drug crazed jerk, hits the water.


----------



## Minnewaska

Sailormon6 said:


> The gun and pot are irrelevant.......


You seem to have completely missed my point. I did not suggest they were relevant to the case. I said they indicated that someone on the crew is talking to someone and saying more than was in the CG report, or the media wouldn't know about the guns and pot. Therefore, I suspect the prosecution has learned even more about events than are in the CG report. More information that caused them to want to pursue criminal charges. Not specifically because of the gun and pot.

As a general rule, Prosecutors don't like to take on losing cases. They can and do lose, because our system favors the accused, which is good. However, I'll bet they've heard more damning reports than we've read. Maybe conflicting reports from the various crew members. I guess we'll know soon. Trial in January.


----------



## Minnewaska

MarkofSeaLife said:


> ....If I was being harassed by a murderous 250 pound muscle man that scared the crikey out of me and I had a gun on board don't you think I would have it loaded and in my pocket?....


Did someone report this was a handgun?

If I was bringing a gun along to defend myself against an invader in the open sea, a handgun would be my last choice. If it was to protect myself against my own crew, a handgun would indeed be my choice. Of course, I don't find either necessary, but I do wonder what the Captain's motivation was. I'm sure the prosecution has asked.


----------



## RegisteredUser

Jeez, BS, you are wound tight.....


----------



## Minnesail

Imagine if you were Nicole Kidman's character being interviewed by the police after the end of the movie Dead Calm.

You'd have a hell of a time explaining the fire and the sinking and the murder(s).


----------



## boatsurgeon

Minnesail said:


> Imagine if you were Nicole Kidman's character being interviewed by the police after the end of the movie Dead Calm.
> 
> You'd have a hell of a time explaining the fire and the sinking and the murder(s).


You do realize that was a movie and what the difference is from real life, right?

But it did shock me that I actually can imagine that I am Nicole Kidman.

Money,

Face,

Diva,

Body,

Fame,

Wardrobe,

Real Estate,

etc., etc., etc....

er. What was the question?

;-)


----------



## boatsurgeon

RegisteredUser said:


> Jeez, BS, you are wound tight.....


Nope.

I'm actually quite chill most of the time.

But I am a realist.

In the real world, an experienced skipper on a capable boat wouldn't abandon a psycho, jerk, drug-crazed MOB, tamper with evidence, and conspire with witnesses to concoct a story of altered circumstances unless they believe they are guilty of something and trying to hide it.


----------



## hpeer

Arcb said:


> Okay, interesting, because the wording of the actual statute seems to read:
> 
> *Every captain, engineer, pilot, or other*personemployed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any*person*is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any*person*is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
> 
> When the*owner*or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any*person*is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.*
> 
> I wonder if the wiki article specifies US jurisdiction because wikipedia is an international database. So, for example, as a Canadian, it would not apply to me on my boat on the high seas, because the US has no jurisdiction on my boat on the high seas, but certainly would on the boat in question. However, if my boat was in US waters, as it frequently is, then the US would have jurisdiction.
> 
> https://www.law.cornell.edu/uscode/text/18/1115


Confusing as hell! I suspect that none of are seeing the entire statute. We are gettin snippets. Thus we are confused.

Edit: So I looked up the law on Cornell Law and found these NOTES:



> Historical and Revision Notes
> Based on title 18, U.S.C., 1940 ed., § 461 (Mar. 4, 1909, ch. 321, § 282, 35 Stat. 1144).
> 
> Section restores the intent of the original enactments, R.S. § 5344, and act Mar. 3, 1905, ch. 1454, § 5, 33 Stat. 1025, and makes this section one of general application. In the Criminal Code of 1909, by placing it in chapter 11, limited to places within the special maritime and territorial jurisdiction of the United States, such original intent was inadvertently lost as indicated by the entire absence of report or comment on such limitation.
> Amendments
> 1994-Pub. L. 103-322 substituted "fined under this title" for "fined not more than $10,000" in two places.


https://www.law.cornell.edu/uscode/text/18/1115

I'm not clear on what that note means, not sufficiently familiar with legal jargon. I could read as either to limit it US Jurisdictional waters, or to expand it beyond such waters. I THINK it means it is restricting it as in the origional intent, but am not at all sure.


----------



## Sailormon6

Minnewaska said:


> You seem to have completely missed my point. I did not suggest they were relevant to the case. I said they indicated that someone on the crew is talking to someone and saying more than was in the CG report, or the media wouldn't know about the guns and pot.


 I understood your point about the crew talking to the authorities and agree. The crew had no reason not to cooperate. They weren't under suspicion of anything. They had no reason to either cover for the captain or to undercut him.

My response wasn't directed to your previous post. Both you and boatsurgeon had commented about the gun and pot and I thought that subject needed to be discussed.

I had a long response prepared for this post, but, just before I posted it, my computer burped and I lost it. So this is the much shorter version. Sorry. The long version was better.


----------



## hpeer

I'm bored and lazy so I thought I'd follow up on this "Seaman's Manslaughter Statute" a bit.

https://www.hilderlaw.com/Publications/WB18-USC-1115.pdf
5 page PDF, says it applies ONLY to commercial operations, not pleasure.

https://www.joneswalker.com/images/content/1/1/v2/1153/258.pdf
This article seems to say this law applies on the "high seas" but also describes it as extending "all navigable waters of the US." I think that means it's applicable thoroughout the US but does not exclude the high seas. 
It makes the point that "case law" indicates this statute holds only to COMMERCIAL vessels and cites another case that was thrown out on these grounds. Apparently there has been one non-commercial case prosecuted, but the defense never challenged the case on the grounds the defendant was not commercial so that doesn't mean so much. 
It also recommends this statue be repealed.

https://www.ifrahlaw.com/crime-in-t...nly-a-seaman-can-commit-seamans-manslaughter/
This one brings up the question of what it means to be "Captain." We use the honorific "Captain" but it generall means something more specific.

My take on reading through the above is that:
1-contrary to my previous belief I think the law does pertain on the high seas. Still not positive.
2-case law strongly suggests it is intended to be limited to "commercial" operations. It's not 100% clear, but strongly leaning in that direction.
3-many legal professionals, including at least one federal judge, feel the law is archaic and needs revision if not outright repeal. The standard of negligence is absurdly low compared to any other similar statute. 
4- there are many complicated ramifications to a guilty verdict. There are sentencing guidelines that limit a judges discretion, pushing toward longer sentences. And a convicted defendants civil rights may be restricted for a lifetime. It's not a simple as it seems. 
5- while dormant for many years this statute is getting much more use. The two duck boat incidents charged under this provision, and it's been used to prosecute commercial fishermen.


----------



## Minnewaska

It's possible the prosecutor is incompetent, but my bet would be they are either well aware of the proper applicability of the law, or (as I've previously speculated) are testing it's boundaries to make a point against a defendant they feel did something wrong. They may not be certain of a conviction, but are gunning for a plea that may include forfeiture of his license. 

Bottom line in my view. The Captain has spent some number of months, confined to quarters with an ankle bracelet. That alone could be avoided, by exercising one's duty to look for any MOB that falls from one's vessel. When someone dies on one's boat, you want to show you've did everything possible to prevent it and recover from it.


----------



## tempest

Good Research. I've found them all recently as well. 

Still can't tell if a private boat operator falls under this law. It would seem not. 

Also, I'm thinking it's going to be pretty tough to prove that the Captain " Caused the death of" Of someone who jumped overboard. But the lack of a search isn't conclusive proof that he " caused the death" 

I Personally, think he should have dropped the guy off at the nearest port. Failing that, at least have conducted a search once he went over. 

I'm pretty surprised that the initial coast guard interview didn't ask, or a least document the use of life jackets. After all, it's the 1st thing they do when boarding a vessel for inspection. "Show me your life jackets."

If there was a conspiracy here, they could have all said they searched for hours, before moving on, and who would be the wiser. They didn't do that.


----------



## Minnewaska

tempest said:


> ....Also, I'm thinking it's going to be pretty tough to prove that the Captain " Caused the death of" Of someone who jumped overboard.....


There are a few logic steps to consider. First, is the crew member dead? I think all will stipulate that he is, even though there is no tangible evidence.

Second, what killed him? I suppose all will concede he drowned. But, when? The Captain claims immediately and was able to determine this so quickly, as to do so from a moving boat at night. I can't see how any reasonable person will accept that. You don't drown immediately.

Therefore, it's possible he resurfaced and drowned at a later time. Hence the duty to attempt a recovery.

Finally, once established that he is dead, but did not die immediately, the statue, which I posted much earlier in this thread, does not say "caused the death" It says...

"....by whose misconduct, negligence, or inattention to his duties on such vessel the life of any*person*is destroyed..."

If being inattentive to your duties a person was destroyed, you've violated this statute. My take away is that failing to attempt a recovery is inattentive. Suspect this is the prosecution's point too, but I'm sure we'll learn more.


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## RegisteredUser

Influence > pressure/favor > charges brought


----------



## Sal Paradise

The Captain operated as a charter boat so that is commercial. Cimarron Yacht Charter

I apologize if this has been posted here already, but its a good article; https://knox.villagesoup.com/p/camd...al-following-arrest-in-virgin-islands/1790917


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## mstern

Sal Paradise said:


> The Captain operated as a charter boat so that is commercial. Cimarron Yacht Charter
> 
> I apologize if this has been posted here already, but its a good article; https://knox.villagesoup.com/p/camd...al-following-arrest-in-virgin-islands/1790917


Hadn't seen that article before, thanks. As for the commercial-vs-private question, I think the key issue is if the boat was in commercial service at the time of the incident, not if the captain and/or the vessel ever operated commercially. I don't have enough facts to have an opinion on that one.


----------



## Arcb

mstern said:


> Hadn't seen that article before, thanks. As for the commercial-vs-private question, I think the key issue is if the boat was in commercial service at the time of the incident, not if the captain and/or the vessel ever operated commercially. I don't have enough facts to have an opinion on that one.


The statute doesnt specify a vessel in commercial operation, there just appears to be an absence of precedent for commercial vessels in transit without paying passengers on board. The absence of precedence doesnt necessarily mean a law cant be used in a certain way.

The law has been used with regards to crew death in the past, not just paying passengers. Again, it doesnt specify. Deepwater Horizon for example had both elements of crew deaths and being well offshore. The charges were ultimately dropped, but not for either of those reasons.

I have frequently heard statements by small comercial operators stating their boat ceases to be a commercial vessel when its transiting between charters but its never been clear to me if that is in fact the case in the US. You would certainly never hear the Captain of a bulk carrier claim his vessel was not commercial because it was transiting lightship between ports with no cargo on board and not currently earning a profit.


----------



## tempest

Very doubtful that this was a charter. He was a private Citizen moving his boat south with volunteer crew. If that is true, then that begs the Question, was there a " Duty" under this Statute, which seems to apply to " Commercial". The Prosecutor would first have to establish the "Duty" under the Statute. Or so it would seem.


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## MarkofSeaLife

It wouldn't matter if that particular voyage was a charter if he claimed the expenses of tgat voyage as a tax loss againt the buisness of the charter boat.


----------



## tempest

Arcb said:


> The statute doesnt specify a vessel in commercial operation, there just appears to be an absence of precedent for commercial vessels in transit without paying passengers on board. The absence of precedence doesnt necessarily mean a law cant be used in a certain way.
> 
> The law has been used with regards to crew death in the past, not just paying passengers. Again, it doesnt specify. Deepwater Horizon for example had both elements of crew deaths and being well offshore. The charges were ultimately dropped, but not for either of those reasons.
> 
> I have frequently heard statements by small comercial operators stating their boat ceases to be a commercial vessel when its transiting between charters but its never been clear to me if that is in fact the case in the US. You would certainly never hear the Captain of a bulk carrier claim his vessel was not commercial because it was transiting lightship between ports with no cargo on board and not currently earning a profit.


A few things: I believe the original law is rooted in the Commerce Clause. The Tanker while transiting would still employ a Paid Captain, a paid crew, and Owned by Commercial company. which establishes the "Duty". Just my take.

His vessel is an "uninspected" vessel. which is probably neither here nor there. But, he wasn't operating under the Authority of his license while moving his own vessel from port to port. Nor, I imagine, was he paid.


----------



## tempest

MarkofSeaLife said:


> It wouldn't matter if that particular voyage was a charter if he claimed the expenses of tgat voyage as a tax loss againt the buisness of the charter boat.


Interesting Point, for sure!


----------



## mstern

MarkofSeaLife said:


> It wouldn't matter if that particular voyage was a charter if he claimed the expenses of tgat voyage as a tax loss againt the buisness of the charter boat.


Excellent point. One of the many facts we don't know.


----------



## RegisteredUser

Your biz operates from your residence.
Partial expense is claimed for taxes.
Tree falls on neighbors car/child/pet etc
Is the biz liable....


----------



## Minnewaska

Does it really make sense that an indictment would have occurred on a statue that didn't apply to the vessel? That's a little optimistic for the accused.


----------



## Arcb

Minnewaska said:


> Does it really make sense that an indictment would have occurred on a statue that didn't apply to the vessel? That's a little optimistic for the accused.


Its not out of the question.

Check out the deep water horizon case. The gentlemen charged with 11 counts each with "Misconduct or Neglect of Ships Officers" (which is I beleive the proper title for seamans manslaughter) were drill rig supervisors.

I gather a prosecution team took the phrase any other person in the statute to mean, literally any other person. But in the end, I think it was determined that a drill rig supervisor was too far removed from a Captain, Engineer, Ships officer or the intended meaning of any other person for the statute to apply.

So, I dont really know. I liked your earlier theory that this case might be a somewhat exploratory test of the law.

I am curious to see the results of the trial.


----------



## hpeer

Yes, I think prosecution is fishing to expand the law. 

All legal professional opinions I read thought the law was very flawed. The one federal judge said it should be challenged in the Supreme Court because the definition of mere “negligence” was out of step with all other similar laws. On that point, that the standard is too low, seems to have near unanimity. In all other manslaughter cases ther needs to be some “gross negligence” not mere negligence as in someone made a mistake. All marintime organiazstions seem to be against it. 

My guess is that, with so many recent prosecutions, one of them will find their way to the appeals process. Likely it will take a strong finding against a corporate personage to make that happen.


----------



## miatapaul

Minnewaska said:


> Big lesson. Always attempt the MOB recovery. It seems to be the law.


Not just the law, but part of being a decent human being.


----------



## miatapaul

mstern said:


> Hadn't seen that article before, thanks. As for the commercial-vs-private question, I think the key issue is if the boat was in commercial service at the time of the incident, not if the captain and/or the vessel ever operated commercially. I don't have enough facts to have an opinion on that one.





tempest said:


> Very doubtful that this was a charter. He was a private Citizen moving his boat south with volunteer crew. If that is true, then that begs the Question, was there a " Duty" under this Statute, which seems to apply to " Commercial". The Prosecutor would first have to establish the "Duty" under the Statute. Or so it would seem.


If the movement of the boat was to move the boat to location of the next charters then it is being operated as part of the charter business. It is certainly not a pleasure cruse.


----------



## Minnewaska

Perhaps the law should be updated. However, I don't think raising the bar to gross negligence will be the accepted solution. Most crew/passengers aboard most boats are not familiar with how to stay safe at sea. We all know that transferring land based habits to sea won't do it. 

I do not think there should be a law that says the Captain has to guarantee your safety, but I do understand why the Captain has expectations that seem more severe on land. For example, I know your house isn't going to sink, when I step through your front door. I'm relying on the Captain not to take an undue risk with their vessel. Again, no guarantee, but they have a duty not to knowingly subject their crew to an undue risk.

I suppose they could clarify the law and make it clear that the Captain must attempt an MOB recovery, but that's pretty narrow. I'm sure the law was intended to sweep up more than that.


----------



## RegisteredUser

Mast came down and killed guest.
Rigging had not been inspected within last 30 days.
Cap found negligent...and sentenced to hell.

Fridge failed which allowed food poisoning.
Fridge did not have proper inspection sticker.
Cap sentenced to hell.

Guest scared and upset.
Now being treated for post sailing trauma.
Boat did not have safe cabin/room.
Cap sentenced to hell.


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## Minnewaska

RU, those are ridiculous examples. Are you trying to disrupt this thread or contribute toward it. 

How about mast came down and killed someone, after the Captain had been informed of frayed rigging aloft or rust at a swage. No one else aboard could or would know.


----------



## tempest

miatapaul said:


> If the movement of the boat was to move the boat to location of the next charters then it is being operated as part of the charter business. It is certainly not a pleasure cruse.


Makes sense. Particularly if he expensed the trip.


----------



## outbound

Folks have raised the issue of whether the statute should be revised. Most here know there’s a difference between what’s right and what’s legal. Many here do passages with crew they take on either paid or unpaid. When thinking about this thread I try to clarify my thinking as owner/captain who takes on crew for passage.
1. I do have an obligation to vet crew. To review their resume and the truth of that document. To call the references. To interview the proposed crew via phone and if suspect in person. I’ve gone as far as insisting the person come to the boat and day sail it in advance of a passage. I’ve left people at the dock when I thought they would be unsafe or disruptive on passage even to the point of paying for a plane ticket to get rid of them if I don’t want them but they weren’t untruthful in what they told me. Part of vetting does include medical and psychological status. 
2. If I made a mistake and allowed someone on my boat for passage who is inadequate crew for any reason it is my obligation to deal with it. This may mean being relieved from watch or being restricted to quarters.
3. As captain I have an obligation to attend to the health and welfare of crew. I have taken crew aside to discuss their psychological state, hydration, pain, physical limitations, mal de mar, etc. in short anything that might effect the safe functioning of my boat or their ability to safely complete the voyage and feel this is under my purview. I have had people get side effects from seasick meds, decompensate from weather, have interpersonal snits, get hurt and mask their pain etc. it’s part of my job as captain to be surveying the condition of my crew and try to be aware of any issues so I can intervene in a appropriate and timely fashion.

You read through this thread and perhaps like me you have trouble with the legal gobblygook. But I hope if you act as captain on passage and take on the responsibility for other people’s lives you prep your boat appropriately and view your responsibilities as outlined above. It seems clear to me this captain didn’t do so. Whether he is legally liable is another question. I hope he is as if he walks it seems it would send a terrible precedent.


----------



## boatsurgeon

Minnewaska said:


> Perhaps the law should be updated. However, I don't think raising the bar to gross negligence will be the accepted solution. Most crew/passengers aboard most boats are not familiar with how to stay safe at sea. We all know that transferring land based habits to sea won't do it.
> 
> I do not think there should be a law that says the Captain has to guarantee your safety, but I do understand why the Captain has expectations that seem more severe on land. For example, I know your house isn't going to sink, when I step through your front door. I'm relying on the Captain not to take an undue risk with their vessel. Again, no guarantee, but they have a duty not to knowingly subject their crew to an undue risk.
> 
> I suppose they could clarify the law and make it clear that the Captain must attempt an MOB recovery, but that's pretty narrow. I'm sure the law was intended to sweep up more than that.


This is an excellent point.

Pretty much every day I see examples of "neglect of duty" by boat owners.

Spouses and children are counting on the skipper (usually Dad) to keep them safe.

Dad seems confident he knows what he's doing so the crew puts their full (blind) faith in them, and their lives into their hands.

Meanwhile, often Dad knows pretty much jack about proper boat maintenance, repair, and safe operation (like performing a MOB recovery in any condition likely to be encountered) putting all of their lives in jeopardy, unbeknownst to anyone (including the skipper themselves).

Some of the responses throughout this thread absolutely confirm my belief in the gravity of the situation.

It is truly frightening.

Arguing whether "offshore" is more dangerous than "inshore", Jeezus.

Any MOB in the water, even in water so shallow they could stand up, is at risk of drowning.

Are there different factors to consider under different conditions including but way beyond just inshore vs offshore?

Of course.

Who needs a "law" to tell them it is the skipper's ultimate responsibility, no matter where they are or what the condition, to do everything possible, to return to shore with the same number they left with?

This is the most basic principle of seamanship folks.

If you just don't get it, sell the boat to someone who does; you are simply not cut out for this and are a hazard to yourself and everyone else on the water.


----------



## Sailormon6

miatapaul said:


> Not just the law, but part of being a decent human being.


IMO it's just not true that both the law and morality require a captain to search for a MOB in all instances. Suppose the violent MOB had a handgun when he went overboard. Do you really think either the law or morality require you to go back and expose yourself and crew to injury or death? I can say I have never seen any law that would require that.

We are all horrified at the thought of watching the boat sail away while we're treading water, but that doesn't mean sailing away is a crime in all instances. Most of us would be equally horrified if we went back and captain and crew were murdered by the MOB. The law doesn't require one to do something that would be foolish or self destructive. If the MOB is alone at fault for his own demise, then no criminal liability can or should be attributed to another person. Whether that is the case depends on the entirety of the facts.


----------



## miatapaul

Sailormon6 said:


> IMO it's just not true that both the law and morality require a captain to search for a MOB in all instances. Suppose the violent MOB had a handgun when he went overboard. Do you really think either the law or morality require you to go back and expose yourself and crew to injury or death? I can say I have never seen any law that would require that.
> 
> We are all horrified at the thought of watching the boat sail away while we're treading water, but that doesn't mean sailing away is a crime in all instances. Most of us would be equally horrified if we went back and captain and crew were murdered by the MOB. The law doesn't require one to do something that would be foolish or self destructive. If the MOB is alone at fault for his own demise, then no criminal liability can or should be attributed to another person. Whether that is the case depends on the entirety of the facts.


Well yes morality would require you to go back you simply can't leave a human to die. And in this case I don't think anyone's life was in danger but the one in the water. He had been sea sick for several days, and was dehydrated, exhausted, obese and not in good physical shape. I don't see how he posed a real threat. Get him back on board, and if need be tie him up. It is a sailboat so there is ample material to contain him. He was the captin's responsibility and his moral obligation does not go away because he was ill and made a swing at him.


----------



## boatsurgeon

Sailormon6 said:


> IMO it's just not true that both the law and morality require a captain to search for a MOB in all instances. Suppose the violent MOB had a handgun when he went overboard. Do you really think either the law or morality require you to go back and expose yourself and crew to injury or death? I can say I have never seen any law that would require that.
> 
> We are all horrified at the thought of watching the boat sail away while we're treading water, but that doesn't mean sailing away is a crime in all instances. Most of us would be equally horrified if we went back and captain and crew were murdered by the MOB. The law doesn't require one to do something that would be foolish or self destructive. If the MOB is alone at fault for his own demise, then no criminal liability can or should be attributed to another person. Whether that is the case depends on the entirety of the facts.


I don't believe anyone here is or has suggested that any skipper should put vessel or crew at unreasonable risk to perform MOB recovery.

So that leaves, "what is reasonable" to individual interpretation. If one's interpretation is "unreasonable", as compared to others, people will consider it "unreasonable".

In the instant case, based on the conditions presented, would it have been reasonable for the skipper to turn the boat around, toss a life ring to the poor $#$%$ in the water, and call a "MayDay"?

Of course it would have.

In the instant case, based on the conditions presented, was it reasonable for the skipper to continue on, and not attempt to assist the MOB in any way what-so-ever?

Of course not.

The MOB, in the water, posed no threat to the crew.

For all we know, the MOB would have realized jumping overboard (if that is what really happened) was poor judgment, was full of remorse, and would assist recovery, and be model crew from then on.

If the MOB resisted recovery, it was still the skipper's responsibility to do everything he could to keep him alive until assistance arrived.

If the MOB was willing to come back aboard, and the skipper determined the MOB may pose an unacceptable risk to vessel or crew it is his responsibility to determine how to mitigate the risk. Some methods include, "confine to quarters" or "physical restraint". Another option would have been to get him in the life sling, but keep the MOB in the cold water until virtually immobilized before dragging back aboard.

So the skipper is guilty for not exercising reasonable care to ensure the safety of the crew.

IMHO, there really should be no debate on this.

Any reasonable person, especially with this skipper's qualifications, should know that sailing away from the MOB is a shirk of the skipper's primary responsibility to return everyone to port safe and sound to the extent reasonably possible.


----------



## hpeer

I don’t think there is much disagreement that the Capt could have done things better. He probably knows that. The question is what purpose does it serve to prosecute the guy? Other than revenge?


----------



## MarkofSeaLife

Sailormon6 said:


> IMO it's just not true that both the law and morality require a captain to search for a MOB in all instances. Suppose the violent MOB had a handgun when he went overboard. Do you really think either the law or morality require you to go back and expose yourself and crew to injury or death? I can say I have never seen any law that would require that.
> 
> We are all horrified at the thought of watching the boat sail away while we're treading water, but that doesn't mean sailing away is a crime in all instances. Most of us would be equally horrified if we went back and captain and crew were murdered by the MOB. The law doesn't require one to do something that would be foolish or self destructive. If the MOB is alone at fault for his own demise, then no criminal liability can or should be attributed to another person. Whether that is the case depends on the entirety of the facts.


I "like" this whole thread because there are so many different things, from people opinions, to methods of being a Captain... there is so much we can all think about no matter whose opinion we like best.

A few days ago I rolled my eyes gently skyward when someone mentioned the Master and Commander bit rounding the Horn where a MOB crewman alive and on wreckage and on a long line to the ship but causing the ship to founder had to be sacrificed. (truly a great bit of writing and Hollywood that everyone here would have pondered) 
However this situation *may* (I am not assessing "facts") be somewhat similar to some degree.

Theres a lot to learn, no matter how experienced we are. that stupid adage that we never stop learning is kinda true because I don't know how I would have handled *any* element of this whole story.



Mark


----------



## Sailormon6

miatapaul said:


> ...you simply can't leave a human to die.


You sure can. Police do it frequently. During a shootout, police will allow a wounded perpetrator to bleed out as long as he still has possession of his firearm. They have no obligation, either legal or moral, to rush in to attend to his wounds, thereby enabling him to take their lives.

There's something that's even worse than leaving a person to die...leaving two or three people to die.

Do you remember the Hollywood Bank shootout, when two bank robbers with fully automatic weapons, using armor piercing bullets and wearing body armor engaged in a lengthy shootout with the police? They wounded many police and citizens, with their ammo penetrating clear through police cars and buildings and the cops bullet resistant vests. One of the perps eventually killed himself. The second perp was shot repeatedly and lay where he fell and he bled out because the ambulances were directed to attend first to all the wounded police and citizens. He caused all that carnage, and he had to wait at the rear of the line when he needed medical attention.

The law deals in reason and harsh reality, not in platitudes.


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## boatsurgeon

hpeer said:


> I don't think there is much disagreement that the Capt could have done things better. He probably knows that. The question is what purpose does it serve to prosecute the guy? Other than revenge?


Here are the first 3 that come to my mind:

1. To ensure the skipper doesn't kill anyone else by his negligence.

2. To send a message to the boating community that one cannot shirk their primary responsibility without significant and appropriate consequence.

3. To serve justice for the family.


----------



## boatsurgeon

Sailormon6 said:


> You sure can. Police do it frequently. During a shootout, police will allow a wounded perpetrator to bleed out as long as he still has possession of his firearm. They have no obligation, either legal or moral, to rush in to attend to his wounds, thereby enabling him to take their lives.
> 
> There's something that's even worse than leaving a person to die...leaving two or three people to die.
> 
> Do you remember the Hollywood Bank shootout, when two bank robbers with fully automatic weapons, using armor piercing bullets and wearing body armor engaged in a lengthy shootout with the police? They wounded many police and citizens, with their ammo penetrating clear through police cars and buildings and the cops bullet resistant vests. One of the perps eventually killed himself. The second perp was shot repeatedly and lay where he fell and he bled out because the ambulances were directed to attend first to all the wounded police and citizens. He caused all that carnage, and he had to wait at the rear of the line when he needed medical attention.
> 
> The law deals in reason and harsh reality, not in platitudes.


What does this have to do with this thread?

Are you trying to argue that in the case this thread is based on, that the skipper had no other reasonable option than to sail away from the MOB and do nothing?

Or are you trying to argue an obvious and unrelated point that absolutely no one here disagrees with, that a skipper must consider all risks to every action and take reasonable steps accordingly?


----------



## MarkofSeaLife

boatsurgeon said:


> So the skipper is guilty for not exercising reasonable care to ensure the safety of the crew.
> 
> IMHO, there really should be no debate on this.


I agree with most of your post except this in that, obviously, everyone's varied opinions means there is a debate on this  Not only in the forum but more importantly when we are thinking of situations at sea.
We simply can't say "He is Guilty" and There should be no debate. mainly because there are so many people on this forum who have sailed so far, in so many conditions and circumstances that their opinions are valid even if they were sitting in from of every Admiral in every Navy. Indeed some have been in command of a vessel far longer in effective command than any Navy officer since World War 2. (and I am not diminishing their job against ours  )



hpeer said:


> The question is what purpose does it serve to prosecute the guy? Other than revenge?


Not revenge. I think thats irrelevant to me, personally. What is relevant to me personally is how all small boat captains, skippers, Mum and Dad couples, Rum soaked retirees etc operate their boats, treat their crews, and have some written guide book to make it easier.
We are out there. How can we be better? (apart from drinking more)

:captain:


----------



## boatsurgeon

MarkofSeaLife said:


> I agree with most of your post except this in that, obviously, everyone's varied opinions means there is a debate on this  Not only in the forum but more importantly when we are thinking of situations at sea.
> We simply can't say "He is Guilty" and There should be no debate. mainly because there are so many people on this forum who have sailed so far, in so many conditions and circumstances that their opinions are valid even if they were sitting in from of every Admiral in every Navy. Indeed some have been in command of a vessel far longer in effective command than any Navy officer since World War 2. (and I am not diminishing their job against ours  )


Please consider the abbreviated phrase, "There should be no debate on this", to be when completely spelled out, "IMHO *There should be no * need for *debate on this*, as everyone who has ever been responsible for the operation of a vessel anywhere, should all be in total agreement".


----------



## Sailormon6

boatsurgeon said:


> Please consider the abbreviated phrase, "There should be no debate on this", to be when completely spelled out, "IMHO *There should be no * need for *debate on this*, as everyone who has ever been responsible for the operation of a vessel anywhere, should all be in total agreement".


When I hear a statement like that, what it means to me is "My mind is closed on the subject. Don't even try to confuse me with reason, logic, or facts, because I'm not listening." :ship-captain:


----------



## Minnewaska

hpeer said:


> I don't think there is much disagreement that the Capt could have done things better. He probably knows that. The question is what purpose does it serve to prosecute the guy? Other than revenge?


By this logic, we needn't hold anyone responsible under the law. Convictions never undue the deed.

The purpose is upholding a system of justice that we all must abide by. It's a necessary system to maintain a civil society. Without enforcing that system, it doesn't exist.


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## boatsurgeon

Sailormon6 said:


> When I hear a statement like that, what it means to me is "My mind is closed on the subject. Don't even try to confuse me with reason, logic, or facts, because I'm not listening." :ship-captain:


What I would hope it would mean to everyone is...

"Please don't attempt to confuse the issue with irrelevant information; in my humble opinion, the answer should be completely obvious."

Nobody here declared that "A MOB procedure should be executed under conditions where it is too dangerous to do so", so why are you attempting to confuse the issue with this idea?

Are you arguing that the conditions presented in this case, fall under the criteria of "too dangerous to do so"?

If you believe so, please explain:

A) Was the skipper too inexperienced/incompetent?

B) Was the sea state too dangerous for the size and type of vessel?

C) Was the MOB in the water too significant a threat to the vessel and crew to toss the life ring to and call a MayDay?

If you feel the skipper was justified for just sailing away, and fulfilled his responsibility to assure the safety of the crew, including the MOB, by all means, please share your reasoning, logic, and facts with us.


----------



## MarkofSeaLife

I think what he is saying is:



boatsurgeon said:


> in my humble opinion,


No one on the internet writes exactly like what they mean on their face when they are discussing this stuff over a beer.

If Boatsurgeon says its his opinion I guess it means, like everyone else, ... its an opinion and nothing else.

We are all only giving our opinion 

We should give everyone that latitude.  Or is that longitude???????????????


----------



## mstern

boatsurgeon said:


> If you feel the skipper was justified for just sailing away, and fulfilled his responsibility to assure the safety of the crew, including the MOB, by all means, please share your reasoning, logic, and facts with us.


I don't think any of us have enough facts to make a judgement in this case. I've been through this too many times (criminal trials, that is) to pretend otherwise. All any of us know are the scant - and sometimes conflicting - details contained in a newspaper article and in a summary of a report. None of us have questioned the witnesses or heard their stories first hand. I wish I had a nickel for every time I've read a police report that made the case sound like a slam dunk, only to then talk to the witnesses and realize I had steaming pile of a s*it-case on my hands.

Now, if we want to play the game of "what if the facts are exactly x; how do you feel?", to me that's a completely different ball game. I think in this case, it's a pretty silly ball game, as the "facts" we seem to be playing with (completely callous and indifferent captain who disregards a seriously ill crew member until he goes crazy, then watches as that crew member jumps overboard and never even slows down the boat) are so outrageous that it's comical. Anyone who thinks the captain acted properly in that scenario is clearly not on the same page as 99.99% of society.

But to pretend that those are the real-life facts in this case, and to make a judgement of this real-life captain based on those facts at this point, is wrong. I don't know what exactly happened on board that boat that night, but unless the captain has been a closet psychotic all these years and hidden it from everyone he knows until that night, I can guarantee that there is more to the story.

I'm with Mark on this one: the most important thing we can take away from this discussion is to think about what we would do in that kind of situation. Playing armchair juror in a trial that hasn't happened yet seems to be generating a lot of heat with very little light.


----------



## boatsurgeon

mstern said:


> I don't think any of us have enough facts to make a judgement in this case. I've been through this too many times (criminal trials, that is) to pretend otherwise. All any of us know are the scant - and sometimes conflicting - details contained in a newspaper article and in a summary of a report. None of us have questioned the witnesses or heard their stories first hand. I wish I had a nickel for every time I've read a police report that made the case sound like a slam dunk, only to then talk to the witnesses and realize I had steaming pile of a s*it-case on my hands.
> 
> Now, if we want to play the game of "what if the facts are exactly x; how do you feel?", to me that's a completely different ball game. I think in this case, it's a pretty silly ball game, as the "facts" we seem to be playing with (completely callous and indifferent captain who disregards a seriously ill crew member until he goes crazy, then watches as that crew member jumps overboard and never even slows down the boat) are so outrageous that it's comical. Anyone who thinks the captain acted properly in that scenario is clearly not on the same page as 99.99% of society.
> 
> But to pretend that those are the real-life facts in this case, and to make a judgement of this real-life captain based on those facts at this point, is wrong. I don't know what exactly happened on board that boat that night, but unless the captain has been a closet psychotic all these years and hidden it from everyone he knows until that night, I can guarantee that there is more to the story.
> 
> I'm with Mark on this one: the most important thing we can take away from this discussion is to think about what we would do in that kind of situation. Playing armchair juror in a trial that hasn't happened yet seems to be generating a lot of heat with very little light.


You may not realize it, but our positions are almost exactly identical.

1. The situation, as we know it is not likely exactly what actually went down, but all we now know is what we can know based on what we now have.

2. Based on what we now have, assuming that is the way it went down, the skipper is guilty as hell of negligence causing death, because no reasonable person would sail away under those given conditions as we now know them.

My concern here, is the position of some, that based on the circumstances as we now know them, the skipper was justified in his actions.


----------



## MarkofSeaLife

boatsurgeon said:


> You may not realize it, but our positions are almost exactly identical.
> 
> 1. The situation, as we know it is not likely exactly what actually went down,
> 
> ......
> 
> ....... that based on the circumstances as we now know them, the skipper was justified in his actions.


I agree with you: We do not know what went down. The skipper MAY have been 'justified' in his actions.

So, yes, you agree with Mstern and most everyone else. 

Remember, those people of the Jury (is it 12 in this trial in the USA?) you often don't have to convince all 12 ... you only have to convince 1 or 2 because the others know what they think is right.

We are simply like a terrific jury.  None of us is stupid. We are all smart enough to understand new or truthful evidence, even at the last minute. I think (can some lawyer help on this one...) Jury's can work out who is telling the truth pretty well. (don't they?) 
So I think all our queries and misgivings, thoughts, etc are whats going to occur in court, eh?



Mark


----------



## hpeer

boatsurgeon said:


> Here are the first 3 that come to my mind:
> 
> 1. To ensure the skipper doesn't kill anyone else by his negligence.
> 
> 2. To send a message to the boating community that one cannot shirk their primary responsibility without significant and appropriate consequence.
> 
> 3. To serve justice for the family.


1 - First this is such an unlikely event that it's hard to imagine it ever happening again. Secondly I'm pretty sure the Capt will be a better and more cautions skipper in the future even without the prosecution.

2 - This is a silly way to send a message. If you wanted to you could send an email to all licensed ships captains and all registered owners. And what would he message be? To be more careful about the crew you pick? To throw out a odd even if you know the guy is dead?

3- How is "Justice" discernible from "revenge"?


----------



## hpeer

Minnewaska said:


> By this logic, we needn't hold anyone responsible under the law. Convictions never undue the deed.
> 
> The purpose is upholding a system of justice that we all must abide by. It's a necessary system to maintain a civil society. Without enforcing that system, it doesn't exist.


That MIGHT have some validity except for the fact that THIS statute is grossly different from ALL other statutes. Under no other statute would the Capt be prosecuted for manslaughter.

Upholding a "system of justice" is not and should not be an end in itself. The "system of justice" needs to have some consistent thread that serves the public good. Granted we seem to have drifted far from that concept in the USA, but that does not make it right in this case. By your logic we should prosecute all manslaughter cases for simple negligence. This is why at least one federal judge suspects the law is unconstitutional.

If there is a "system of justice" why is the bar for negligence set so low for this onc statute? What is the legal theory behind it?

Generally the justification for imprisonment is to either remove someone from society or to place him in an environment where he can be rehabilitated. The likelihood of this or a similar event reoccurring to this Capt is near zero. There is no real social benefit.


----------



## Minnewaska

hpeer said:


> That MIGHT have some validity except for the fact that THIS statute is grossly different from ALL other statutes. Under no other statute would the Capt be prosecuted for manslaughter.


It seems you're reaching for a way to defend this Captain. This is maritime law, which has absolutely zero relation to common law in many, many ways. For a reason. Criminal, civil, corporate, state, federal, are all different.



> By your logic we should prosecute all manslaughter cases for simple negligence.


Again, I think you're reaching, as there is no way to take that from the logic you quoted. Further, for the billionth time, this statute is not contained to negligence. It also addresses inattention to duties, which looks to be the issue here. Yes, I think on the sea, the Captain should have responsibility to their duty, which differs from being on land.

That said, I doubt this one will result in 10 years in prison, unless there is much more malice than we've read about. That, of course, is indeed possible. Just imagine a prosecutor, who has interviewed the crew and learned they were very concerned about turning back, but the Captain expressed some real anger and prevented them from doing so. I'm not saying this is what happened, but more than negligence would be necessary to address a statute to cover this situation.


----------



## RegisteredUser

Minnewaska said:


> ..... Just imagine.....


Yes.
This entire thread.
Some so passionate


----------



## chef2sail

If this group were the jury the deliberations would last many days. 
People sliding past each other with very little agreement or common ground for both sides.
Minds made up despite only partial knowledge of facts, with many of the facts presented by speculation.
Jury a mix of True legal experts with training.......people posting as experts ( they seem to be the multiple posters) ...and innocent bystanders just thinking, and awaiting the true facts vrs the speculated ones

Seeing very little give and take in posers positions I foresee a hung jury. 

While some of the conversation has been thought provoking I have to go back to Jeff H caveats.


----------



## boatsurgeon

chef2sail said:


> If this group were the jury the deliberations would last many days.
> People sliding past each other with very little agreement or common ground for both sides.
> Minds made up despite only partial knowledge of facts, with many of the facts presented by speculation.
> Jury a mix of True legal experts with training.......people posting as experts ( they seem to be the multiple posters) ...and innocent bystanders just thinking, and awaiting the true facts vrs the speculated ones
> 
> Seeing very little give and take in posers positions I foresee a hung jury.
> 
> While some of the conversation has been thought provoking I have to go back to Jeff H caveats.


FWIW, a person develops an opinion based on the situation as they know it and this is true of a person on an internet forum or sitting in a jury box.

Based on the information as I currently understand it, in my opinion, the skipper was negligent.

Whether he is found guilty of negligence in court is dependent on the evidence presented and the opinions of the jury members.

Of course if we learn new information we don't currently have, it could change anyone's opinion, or not, depending on what that information is.


----------



## Minnewaska

RegisteredUser said:


> Yes.
> This entire thread.
> Some so passionate


That was in context of how the law should be written. It's a constructive discussion of what the law should apply to and fully disclaimed this situation. What is your problem?


----------



## john61ct

Methinks an axe to grind of some sort.


----------



## willyd

chef2sail said:


> If this group were the jury the deliberations would last many days.
> People sliding past each other with very little agreement or common ground for both sides.
> Minds made up despite only partial knowledge of facts, with many of the facts presented by speculation.
> Jury a mix of True legal experts with training.......people posting as experts ( they seem to be the multiple posters) ...and innocent bystanders just thinking, and awaiting the true facts vrs the speculated ones Seeing very little give and take in posers positions I foresee a hung jury. While some of the conversation has been thought provoking I have to go back to Jeff H caveats.


You spelled "weeks" wrong in your first sentence.

I'm amazed at people's ability to read contrary evidence, or at least possible explanations for what might have happened, and yet stick doggedly to their initial positions, which are identical to what was posted in the first few posts of the thread. Assumptions ain't facts. Again, the guy wasn't delirious when he got on board, the body sank right away, and the article said the captain wasn't _able _to call until the next day.

All in all, though, this thread has remained remarkably civil, which is nice.


----------



## outbound

W I get the same thing which is why I believe the captain failed in his duty PRIOR to the crew jumping off the boat. As a neurologist acute delirium has a very specific meaning. It implies the absence from a structural cause but rather dysfunctional irrational behavior due to intoxicants, drugs, intercurrent infection or illness. You maybe predisposed to acute delirium from pre-existing illness but that isn’t the proximate cause. One can speculate as to the cause here with side effects from motion sickness meds being a leading suspect. However, it is stated he was delirious and inferred he wasn’t when he boarded the boat. Therefore the delerium was acquired while he was on the boat and under the captains supervision. It is the lack of intervention or obtaining assistance or outside advice prior to the suicide that I believe is the captains failure and he is culpable regardless if he turned around or didn’t. 
I believe nearly every captain that routinely does passage with newly acquired transient crew has faced occasions where they have had to intervene with crew both for their safety and that of the boat. I can give you chapter and verse of my experiences and I’m sure so can many of the other posters here. I believe I can with some reasonable accuracy identify who recruits crew from their positions here. Events such as this with the potential for adverse or even lethal outcomes do occur. This is not an abstract discussion. As captain you need the right attitude and do the right thing. Whether the law holds you responsibility is another issue but for my dime you should hold yourself responsible. That responsibility includes delivering all crew and the boat (if possible)safely back to shore. That’s the prime directive. That’s black and white. I’m upset that some posters seem equivocal on that point which is why I keep posting.


----------



## zedboy

Sorry if I'm just lost in the spaghetti a little, but could someone point out where

a) It was concluded that Smith didn't make appropriate Mayday calls? From the original article it seems clear he did make VHF calls, and tried to make SSB calls, but wasn't able to contact anyone for some time. From the fact he did have Chris Parker alert the CG it seems clear that was his intention

b) It was concluded that the boat sailed away from the MOB without conducting any search? The "can't turn the boat around" in the original article is ambiguous but doesn't make sene - why can't you turn a boat around? The more logical meaning is, "there's no benefit to returning hundreds of miles to last port of call, against favorable weather."

Did I miss something(s)?

The news articles on the prosecution's case seem to focus on Smith's duty to do something before Pontious went totally nuts, which is far out - what captain with a seasick or unfit crew member (who otherwise poses no known risk to crew/vessel) does anything other than relieve that person of duties and carry on?


----------



## outbound

Yes, relieve of duty.Assess physical health and cognition. Hydrate if required, discontinue meds if serious side effects suspected. Change or add mds if required. If continuing to decline seek outside advice or help.
People die from intractable vomiting. Mallory Weiss tears can cause exsanguination. Electrolyte abnormalities can cause lethal arrhythmias. As captain part of your DUTY is to supervise the health of your crew. From available information this captain failed in his duty. 

Although the wife and I do pretty well in a seastate I carry patches, bonine, sturgeon, compazine supositories, ginger, ginger beer, sports drinks with electrolytes, coconut water etc.
Fortunately to date we haven’t used any of it except the sturgeon but it’s on the boat for the eventuality someone may need it. I have had crew get seasick. Fortunately with support and time not intractable. However, I can see that occurring so I think it’s part of my obligation as captain to think about and prepare for that occurrence. To the degree of changing point of sail for a watch or two to help my crews illness settle down. Just ignoring it, not helping your crew to the degree possible and sailing on as you imply is unacceptable. 
Nothing is said what this captain did to mitigate the situation. That’s the information that holds interest to me.


----------



## boatsurgeon

willyd said:


> You spelled "weeks" wrong in your first sentence.
> 
> I'm amazed at people's ability to read contrary evidence, or at least possible explanations for what might have happened, and yet stick doggedly to their initial positions, which are identical to what was posted in the first few posts of the thread. Assumptions ain't facts. Again, the guy wasn't delirious when he got on board, the body sank right away, and the article said the captain wasn't _able _to call until the next day.
> 
> All in all, though, this thread has remained remarkably civil, which is nice.


Excuse me, but where are these "facts" you refer to?

All we have is a supposed Coast Guard report, and a supposed news report, supposedly based on one-sided statements by people being interviewed.

So what we are debating is a story, that may be pure fiction, and not based on any facts at all.

We read the story, try to determine what is true, and base an opinion.

What I believe is true, is that based on the story, there was a boat, with a skipper and 3 crew; only 2 crew came back, and the skipper didn't do nearly enough to try to bring back the third, and is trying to cover up his negligence, that contributed to the possible drowning.

The only reason I am so involved, is because I am appalled by those having the opinion (which may not be fact, they may just be trying to ruffle feathers) that the skipper was not negligent, based on the story, as we think we know it.


----------



## zedboy

outbound said:


> I believe the captain failed in his duty PRIOR to the crew jumping off the boat. As a neurologist acute delirium has a very specific meaning [...] It is the lack of intervention or obtaining assistance or outside advice prior to the suicide that I believe is the captains failure and he is culpable regardless if he turned around or didn't.





outbound said:


> As captain part of your DUTY is to supervise the health of your crew. From available information this captain failed in his duty.


You're a neurosurgeon, and you know that a guy showing the symptoms of delirium could become a danger to himself or others. But does the seaman's manslaughter precedent indicate that the law requires the captain to take specific actions in that case, and that he is culpable for not doing so?

I think the key here is that he didn't throw out a lifebuoy, activate an EPIRB, or conduct a search. That's standard MOB procedure, and that every captain knows and knows well. The court will have to determine if not seeing the MOB, as well as recently having been assaulted by the MOB, are justification for not throwing/activating/searching.

(Did they have an EPIRB? Is that required for a 6-pack license?)

Morally is a different question - of course one is obligated to do everything reasonable in one's power to save even the life of someone who tried to attack you but is no longer a threat. But given the frazzled state of a captain who seconds ago thought he himself was a goner, I can also understand if his decision making was sub-optimal. Realistically, the only time they had any chance of being useful to the MOB was by searching in the very immediate aftermath.

Was Pontious wearing a PFD?


----------



## john61ct

willyd said:


> I'm amazed at people's ability to read contrary evidence, or at least possible explanations for what might have happened, and yet stick doggedly to their initial positions, which are identical to what was posted in the first few posts of the thread. Assumptions ain't facts.


**Values** differ.

Assigning bad intent vs seeing symptoms of illness.

Assigning greater or less responsibility to the captain for throwing the schedule away soon as symptoms became apparent.

Brother's keeper principles, vs "taking responsibility for yourself"

If someone attacks you, how much should you still look out for their interests relative to the other crew?

He chose to kill himself, so "shrug problem solved", vs horrified soul-searching "how could that have been prevented?"

Pragmatic caution about going through the expected (required) motions of corpse retrieval (genuine rescue attempt).

etc etc, not least and most importantly,, just how much value does one (stranger's) human life have?

All lead to radically different assessments even if the facts are not in dispute.

Then you get into

"what is right / wrong" as opposed to "what is legally required", since the relationship between the two is tenuous at best


----------



## Arcb

zedboy said:


> a) It was concluded that Smith didn't make appropriate Mayday calls? From the original article it seems clear he did make VHF calls, and tried to make SSB calls, but wasn't able to contact anyone for some time. From the fact he did have Chris Parker alert the CG it seems clear that was his intention


It was reported that there was an EPIRB on board that was not triggered. An EPIRB more or less equates to a Mayday call.

Lots of us wear PLBs we would trigger ourselves if we went overboard, so I dont personally think it would be inappropriate to trigger the vessels EPIRB if some one else went over.


----------



## Minnewaska

Most of our analysis is based upon what’s been reported and is not a conviction. It’s a discussion. I think one should debate their position on what we know.

Further to that discussion is how we may expect any of us will be examined, if we lose a crew member in a passage. I don’t expect, for one second, that a prosecutor, let alone a victim’s family, is going to take on face value that the Captain could possibly confirm the instantenous death of the MOB that jumped. I’m not saying he is guilty, I’m only saying the mere fact that he claimed a fact must still be examined for truthfulness. I’ve read several that I hope he has better corroboration for. These include explaining the jury how he could know the victim was instantly dead and why his radio worked the next day, but not the day of the event. These could have good answers we haven’t read.

Circumstantial evidence will be important here, and that will relate to how believable the testimony is and whether any of the crew contradicts. 

I think it stands to reason that the prosecutors interviews would not have made the media renditions more understandable, or they wouldn’t have pursued this action. 

It’s probably inevitable that a civil action will be pursued as well, regardless of the criminal outcome. In that case the bar is substantially lower. If he’s found guilty, it’s almost a given he’ll lose a civil action. Although, if acquitted, he may still fail the civil test.


----------



## boatsurgeon

Arcb said:


> It was reported that there was an EPIRB on board that was not triggered. An EPIRB more or less equates to a Mayday call.
> 
> Lots of us wear PLBs we would trigger ourselves if we went overboard, so I dont personally think it would be inappropriate to trigger the vessels EPIRB if some one else went over.


Yupper!

When the MOB tried to call for assistance over the VHF, the skipper told him it wasn't possible because of distance off-shore. Lie. Another boat nearby could respond and/or relay a "May Day" if one was called and someone could receive it.

That the skipper allegedly told the MOB he would "slit his throat if he touched his equipment again", speaks volumes.

I may be very pissed off and stern and insistent that someone not touch things they are not authorized to, but I certainly wouldn't threaten to slit their throat over it, nor do I believe that any reasonable skipper would. (I suppose Blackbeard the pirate may.)

Later the news story says the skipper tried to call another boat but got no response. Did he call a "MayDay"? That would be required as a member of the crew was in clear and eminent danger. We don't know, but based on the other information, my suspicion is not, and I wonder, based on other information, if any call was really made.

I think it was declared somewhere that the boat didn't have HF (SSB), so as they approached Florida many many hours later, they prolly got in touch with Chris Parker via VHF or cell phone.

So if you have no SSB, and nobody responds to VHF (if any call was really made) why not trigger the beacon?

I can't think of any good reason not to (other than to ensure the body is never recovered, or if the skipper believed it simply wasn't worth any attempt to save a the guy in the water, basically handing him a death sentence.).


----------



## hpeer

USCG report says he called on VHF and SSB right after the incident. 

At least that’s what I read, but is was difficult to read in this iPhone.


----------



## zedboy

boatsurgeon said:


> When the MOB tried to call for assistance over the VHF, the skipper told him it wasn't possible because of distance off-shore. Lie. Another boat nearby could respond and/or relay a "May Day" if one was called and someone could receive it.
> 
> [...]
> 
> Later the news story says the skipper tried to call another boat but got no response. Did he call a "MayDay"? That would be required as a member of the crew was in clear and eminent danger. We don't know, but based on the other information, my suspicion is not, and I wonder, based on other information, if any call was really made.


Another boat might hear you. But the likelihood of anyone being in VHF range isn't high. If a non-lucid person tried to call for assistance, a valid simple explanation would be, "we are too far offshore to reach anyone."

The original article states they contacted Chris Parker as quickly as possible and had him contact the CG. Doesn't sound like they were trying to not call the CG - why wouldn't they continue on their course until much closer to destination, then claim they searched extensively but fruitlessly and tried to raise other boats unsuccessfully the whole time on VHF?



boatsurgeon said:


> I think it was declared somewhere that the boat didn't have HF (SSB), so as they approached Florida many many hours later, they prolly got in touch with Chris Parker via VHF or cell phone.


They contacted Parker 32 hours later, after continuing their course, but the winds were stated to be 5 knots, and when the CG sent out a plane, they saw it. They weren't far from the original location Pontious went overboard. They were not VHF-close to Florida. Either they really did have an SSB and tried to use it earlier, and just took a while to raise Parker (makes sense - why would you relay a call to Parker over VHF instead of directly to CG?!), or someone came into range to relay their VHF call.



boatsurgeon said:


> So if you have no SSB, and nobody responds to VHF (if any call was really made) why not trigger the beacon?
> 
> I can't think of any good reason not to (other than to ensure the body is never recovered, or if the skipper believed it simply wasn't worth any attempt to save a the guy in the water, basically handing him a death sentence.).


Or that you're majorly shaken up by a recent attempt on your life, and it takes you half an hour to get your situational awareness back? By that point throwing out an EPIRB is a waste of a few hundred dollars - why are you marking the spot where the MOB isn't?

There's a critical point here: the point is not to find a plausible chain of events in which the captain sounds grossly negligent. In addition to clarifying questions of fact to the degree possible (obviously it will be critical that all the crew's stories stay consistent under questioning), the jury must be convinced beyond a reasonable doubt that there is NO plausible chain of events in which the captain is NOT negligent.


----------



## boatsurgeon

zedboy said:


> You're a neurosurgeon, and you know that a guy showing the symptoms of delirium could become a danger to himself or others. But does the seaman's manslaughter precedent indicate that the law requires the captain to take specific actions in that case, and that he is culpable for not doing so?
> 
> I think the key here is that he didn't throw out a lifebuoy, activate an EPIRB, or conduct a search. That's standard MOB procedure, and that every captain knows and knows well. The court will have to determine if not seeing the MOB, as well as recently having been assaulted by the MOB, are justification for not throwing/activating/searching.
> 
> (Did they have an EPIRB? Is that required for a 6-pack license?)
> 
> Morally is a different question - of course one is obligated to do everything reasonable in one's power to save even the life of someone who tried to attack you but is no longer a threat. But given the frazzled state of a captain who seconds ago thought he himself was a goner, I can also understand if his decision making was sub-optimal. Realistically, the only time they had any chance of being useful to the MOB was by searching in the very immediate aftermath.
> 
> Was Pontious wearing a PFD?


It does not take a brain surgeon to realize that if a skipper believes a crew member has become a danger to himself or someone else, that something should be done to lessen the danger.

According to the news article they had an emergency beacon, but it wasn't triggered.

Yup, I think the skipper made a conscious decision not to attempt to assist the MOB in any way, either because he hoped the body would never be recovered, or didn't care enough to even try.

If it was in a bar and a stranger punched and choked a guy, who knocked them down and walked away to let others take care of him, that's one thing.

(Even at that, I think a decent human being, even 3 sheets to, should stick around to ensure they didn't kill the guy, and try to help if they really hurt them.)

Regardless of any of the reported circumstances, a skipper, responsible for vessel and crew, basically walking away from a MOB assuring their death, is unconscionable.


----------



## zedboy

hpeer said:


> USCG report says he called on VHF and SSB right after the incident.
> 
> At least that's what I read, but is was difficult to read in this iPhone.


You are correct.

https://www.penbaypilot.com/sites/d...26_2152304848133425_7265832857958875136_n.jpg

Makes a big diff: they were 400nm offshore (see original article) and claimed to be trying to make their Mayday the whole time. The big question is, was the captain duty-bound to effect a search?


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## MarkofSeaLife

zedboy said:


> The big question is, was the captain duty-bound to effect a search?


Bingo! That's why we are 400 posts into this thread! :grin


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## Arcb

zedboy said:


> Or that you're majorly shaken up by a recent attempt on your life, and it takes you half an hour to get your situational awareness back? By that point throwing out an EPIRB is a waste of a few hundred dollars - why are you marking the spot where the MOB isn't?


Well, I think its fairly standard practice for the CG to drop a SLDMB (Self Locating Datum Marker Buoy) as close and as soon as possible to the last known position of a Person in the water in order to establish a drift pattern. An EPIRB might function in much the same way as a SLDMB.

Once the drift patern is established the search patern can be adjusted accordingly, not unlike the spaghetti models we see for hurricanes.

However, it is entirely possible that the crew on the boat maybe wasnt aware of this or didnt think of it.


----------



## zedboy

Minnewaska said:


> It's probably inevitable that a civil action will be pursued as well, regardless of the criminal outcome. In that case the bar is substantially lower. If he's found guilty, it's almost a given he'll lose a civil action. Although, if acquitted, he may still fail the civil test.


Seems they tried that, and it was dismissed because statute of limitations has passed.

Quoting from here (takes a little wizardry to display full article, but it's there): St. John captain no longer facing civil suit in crewman?s death, but criminal case remains | News | virginislandsdailynews.com

"Frank Pontius [David Pontius' father] filed a motion to dismiss the civil lawsuit against Smith on Nov. 19, citing the ongoing criminal case as the reason for dropping the case. A judge granted the dismissal Monday, and Sheesley [Smith's lawyer] said the statute of limitations has run out and plaintiffs cannot file another civil lawsuit against Smith in connection with Pontius's death."


----------



## hpeer

Mark,

I think there a couple of angles to this thread. I can try to numerate what comes to my mind. 

1-Was he duty bound to do something different prior to the jump?
2-Was he duty bound to do more than he did do once he jumped?
3-If he was negligent in #2 is it a negligence that can be reasonably be excused, set aside, because of the trauma of the situation?
4-Does this trip constitute as a “commercial venture?
5-If not is this statute applicable?
6-If applicable is it constitutional?
7-How does his status as a 6 pack licensed captain impact his responsibilities?
8-Identification of mitigating circumstances, for OR against.

That’s what I can think of at this instant anyway. Each item has its own line of argument. 

It’s a fascinating discussion. Very complex, lots of issues. Most of which we are woefully ignorant. 

I wonder if the lawyers on either side are aware of and/or reading this thread? Maybe we should get some compensation to SailNet for all the great free advice we are putting out there. &#55357;&#56832;


----------



## hpeer

I would like to make one more point for now concerning the concept of “negligence.” 

Up thread there were comments about the Capt giving the jumper trandermscope.

The guy is sick, the Capt has transdermal scope, a USA prescription drug on board. 

Case 1 He gives the guy the patch. This is negligent because the Capt is misusing the drug, giving it out when he is not an MD. 

Case 2 He does NOT give the guy the patch. This is negligent because the Capt is withholding a possible remedy thereby putting the fellow at risk. 

Now I’m not trying to make a case that the finding of guilt or innocence should turn on this point. 

I am making the point that there are grey areas that are open to interpretation when the decision maker is faced with two or more questionable avenues of action. 

Now this is given as an example. We are not in possession of all facts so it is possible that there were other similar “gottcha” type situations where the participants, through the best intentions with the knowledge at the moment, got led down a path that led to this tradgedy. This is a burden all leaders shoulder. Some do it better than others. Few are unanimously praised by their team.

I’m guessing that’s why all other manslaughter statutes have a bar of “gross negligence” as opposed to simple “negligence.” Because it is so easy to find some little seemingly, at the time, inconsequential thing that can trip you up, “gottcha.”

I’ve been struggling with why I am still involved with this thread. I suspect this is a big part of it. To my mind this is a big game of “gottcha.”


----------



## john61ct

in theory, you aren't negligent in your duty of care, as long as you take reasonable measures

things a reasonable person would consider reasonable, within your means and in that context

aka, you really try, do your best.

if these reports are factual, does anyone here think that his behaviour lines up with the above description, just from a layman's common sense POV?


----------



## MarkofSeaLife

hpeer said:


> Now I'm not trying to make a case that the finding of guilt or innocence should turn on this point.
> 
> I am making the point that there are grey areas that are open to interpretation when the decision maker is faced with two or more questionable avenues of action.
> 
> ."


The legal questions have nothing to do with us. The US Government has probably the ability to pay for a qualified Judge to work them out &#55357;&#56842;

What we can only find usefull is "What Would I Do?"
Negligence is about what the Reasonable Man would do not someone with a Federal acoyrt Judges appointment but a normal, smart, reasonable guy.

On that specific question I know what I would do because I have done it before: try to get the sick person to take the seasickness drug. That's what a Reasonable person IMHO would do. 
I also queried if there is a clear enough packet warning about side effects. But when I raised that point and others people screamed me down saying people do not want more laws. 
I thought seasickness drugs to be very tame stuff. I'm surprised it's lead to hallucinations... But if the lable clearly said not to take them with heart medication the the Reasonable Person would have asked the sick person with swollen feet about other medication he may have been taking. 

If a judge and jury thinks differently this case is going to be even more interesting! We are going to have to change the way we do things... Wether folks want new laws or not. It would be stupid to do the same old stuff if we get 10 years for it.

I think that with the lack of instant communications too. It's 2019 not 1930! The Reasonable skipper taking humans to sea better have the kit and better fire the Epirb off or sit in jail and rot IMHO. I'm very interested to hear a judge on that one. Very interested in deed. To lose a person overboard and not use the EPIRB is staggering.

So I'm absolutely with you that this case is riveting. It feels like it could be a game changer in just about every facet of the voyage. Every facet. 
Soon this case may make it mandatory for offshore boats to have instant communications to tend the health and help save the lives of pelle we take to sea.

One last, obvious point. The USCG has SAR 'assets' that cover that area within the time the water temperature could have given the MOB hypothermia. By not useing/having instant communications that man in the water had no hope.

Mark


----------



## hpeer

Mark,

Dolphin range 409 miles 355 nautical
Jhawk 802 miles 700 nautical

The deploying base would have been Elizabeth City, they fly the Jhawk. Elizabeth City is roughly 50 miles inland, they were out roughly 300 miles. So at the very best the chopper could have flown to the spot, turned around and come back, IF they were at the point of closest approach.

Not gonna happen.

They launched a C-130 because that is the only asset there with the range to get on site and linger to do a search. When I flew out of there, mid '70's, the search aircraft, C-130, would have carried some survival equipment. It was a string of drums connected with rope: raft-supplies-supplies-supplies-raft. We stood on the open aft ramp and when the pilot yelled "drop, drop, drop" we pushed out the containers one after another. I think there was 500' of rope between containers so it would string out over a half mile. I THINK that is still current practice but could easily be wrong. As of 2008 they were still flying some of the same aircraft I flew in in 1976. The SAME aircraft, not just same type, same tail number.

Back then we would not have launched until first light. Maybe now they have some infrared. Don't know. Back then we would often look for a missing passenger or crew member, frankly we considered it a jesture. The chances of finding a bobbing head with eyeballs is about zero. HOWEVER, one day we DID find a guy who had fallen off a merchant ship. Everyone considered it a freaking miracle. It felt good.

I've spent a lot of hours staring at a blank ocean. In 3 years I was never on a flight that found someone or even a missing yacht. Once did find a boat we were not looking for. In fact it was a very rare occurance. We once searched for a missing dingy with 3 folks for 3 days. Had good info, Bahamas, knew when they left and where they were going, a few miles only. After 3 days they called off the search. Husband was a high military officer so the search was reinstated and one of our planes found her, a Miami HH3F picked her up. A buddy was the crewman who helped her aboard. Another miracle. The 2 guys with her decided to swim for it to an island. Never found them.

That was a long time ago, before they had the guys who jump in. That makes a huge difference I think. Once you find them. Also VHF was a new gizmo then, few boats had it, another huge difference.

If think about it, about the best you could expect, given the incident occurred about 1am is that, had he gotten through to SAR somehow, it still takes a couple of hours for the RCC to react, call the base, and launch an aircraft. So launch at 3am + 1 hour transit time. Arrive on scene at 4am, contact the boat on VHF and get the story straight from the Capt. Then loiter until you get enough light to start a visual search. And that's optimistic. If they found him then they could drop a survival package and then look for some boat to pick him up. Could be the original boat. Then deploy a cutter to intercept the sailboat or do a lift when in range.

But perhaps there is someone with more recent experience that can correct any errors from my 1976 era experiences.

https://en.m.wikipedia.org/wiki/Coast_Guard_Air_Station_Elizabeth_City

Take away: stay on the freaking boat!


----------



## Arcb

H, isnt that why its so important for the subject vessel to remain on scene, and for AMVER vessels to be notified? So if the C-130 spots something and maybe drops a raft, the surface craft can converge on the area and, if at all possible, recover what has been found?

My SAR experience is all surface based, but I have definitely worked with C-130s in the dark, although, admittedly, I have never seen one find what they were looking for before first light.


----------



## MarkofSeaLife

hpeer said:


> Mark,
> .
> 
> I've spent a lot of hours staring at a blank ocean. In 3 years I was never on a flight that found someone or even a missing yacht.


But you tried!

Thats the point. You tried.

This guy did not. Nor did he let your guys.

For all we know there was a fully fueled Destroyer with helo 1 hour steaming time from the mob.


----------



## midwesterner

Don0190 said:


> Minnewaska said:
> 
> 
> 
> We know you'll sail away in the scenario we're discussing. I hope all your passengers know it too.
> 
> 
> 
> I'll add it to my brief:
> 
> "If you go all crazy and attack the captain or crew and then jump off the boat, you are on your own!"
> 
> I guess for others you should add to your brief:
> 
> "If you go all crazy and attack the captain or crew and then jump off the boat, we will try to recover you and give you another chance at us!"
Click to expand...

Don0190, it seems like you're being obtuse. The extreme statements you wrote are not the only choices. There is also:

"As a crew member on my boat I will do my best to see to your safety. If you become ill or incapacitated, either physically or mentally, I will do my best to care for you with compassion, and return you to your loved ones."

This guy who jumped over board was mentally incapacitated and was hallucinating due to a bad drug reaction. He was ill, the same as someone who develops appendicitis, or breaks a leg. You've made it clear that you would sail off and leave such a person because it would be inconvenient to give them aid.


----------



## zedboy

MarkofSeaLife said:


> But you tried!
> 
> Thats the point. You tried.


So that's the interesting question: is the captain liable for death on account of negligence, when the guy jumped (i.e. no way the captain could have forseen that), and the captain didn't immediately see him in the water, after looking with a spotlight? Because his chances after that, search or no search - and no question, the only relevant search would have been the Smith on the scene - his chancel were close to nil. It was the end of October. Pontious certainly didn't have a light on him, and I doubt he had a PFD (but not sure).

I tried to find some case law precedent, and two recent cases came up (older cases much less relevant because no comparable SAR tech), both found guilty:

a) A lobsterman who lost two crew members after flipping the boat in a storm, when he was on Oxycodone.

b) A charter boat which had a damaged rail, didn't take any steps to secure it, lost a guest overboard, then didn't make a Mayday call for 50 minutes.

In both those cases, specific negligence contributed putting the lives of others at risk. You don't drive your boat under the influence. You have to maintain your safety railings for your passengers, or keep them away from the edge.

In this case, a guy jumped of his own volition. Was Smith supposed to expect that? They looked for him and didn't see him immediately, in late October. Without a visual, his chances at that point were very low - how were they supposed to find him in the dark?

Morally, no question they should have looked. But is that called negligently causing the death? As the previous posts about SAR operations have pointed out: the guy was a goner when he went over at night.



MarkofSeaLife said:


> This guy did not. Nor did he let your guys.
> 
> For all we know there was a fully fueled Destroyer with helo 1 hour steaming time from the mob.


Now that's not fair - the CG report said he tried to reach SAR by VHF and SSB until he reached Parker. If there was someone close by he would have reached them.


----------



## MarkofSeaLife

zedboy said:


> So that's the interesting question: is the captain liable for death on account of negligence, when the guy jumped (i.e. no way the captain could have forseen that), ....
> 
> the CG report said he tried to reach SAR by VHF and SSB until he reached Parker. If there was someone close by he would have reached them.


The exact time-line of what happened, who said what etc etc is hopefully going to come out in court. I cant dispute anyones reading of the reports and articles and I am not going to run back to the USCG summary now as I gotta go shopping  
However I *thought* the USCG said the SSB was not used for 32 hours after the incident. I may be wrong. (And I have already said the language in the USCG report is 'interesting' to say the least. I dont think the Investigating officer was thinking it would be in court 3 or 4 years later!).

So lets crack your captains Responsibility egg as a personal opinion:
Like in the military, the Navy, Air Force, large companies, Merchant Shipping etc The Captain is RESPONSIBLE for *everything* that occurs under his command. Even when he is asleep!

Not only You and Me but all captains, skippers, cruising sailors whatever Must do what is right, and, be SEEN to be doing what is right.

I cant stress that enough and hate using all Caps to do it but lets look at what the captian has not been SEEN to do:
Not SEEN doing a propper medical check on the guys swollen feet
Not seen to care enough to divert when seasickness hit (I dont think I would have either)
Not seen to contact USCG/Medical authorities on the Friday via SSB
Not seen to understand or care about Mental Illness on board.
Not seen to have a better plan to ensure the safety of the crew
Not seen to care when the MOB occurred
Nor seen to do a MOB search
Not seen to fire the EPIRB
Not seen to use the SSB immediately at all, or in a sustained manner..
Etc Etc Etc.

So as a lawyer will tell you (not a TV lawyer) negligence can be by acts, or OMISSIONS to act.

I also think omissions may have occurred before they even set sail: No DSC on the VHF? No Sat Phone etc? No medical book on board? No background medical checks of crew by real doctors etc.

Theres so many worms in the shovel full of soil that both your and my interest is piqued, and rightly so. Our next voyage we must do better! And that starts before we get on board 

Mark


----------



## hpeer

Arcb said:


> H, isnt that why its so important for the subject vessel to remain on scene, and for AMVER vessels to be notified? So if the C-130 spots something and maybe drops a raft, the surface craft can converge on the area and, if at all possible, recover what has been found?
> 
> My SAR experience is all surface based, but I have definitely worked with C-130s in the dark, although, admittedly, I have never seen one find what they were looking for before first light.


No doubt the Capt didn't help himself by sailing away. Never said that was a good decision. I was just trying present a realistic picture of what a SAR looks like, what chances of rescue were.

We lost a HU-16 and crew, in the Gulf, dropping illumination flares for a couple of HH-52s.

I was radioman on a night mission, Hatteras area, ketch dismasted, we found him, VHF and loitered until a cutter got there. The cutter had us shoot off flares, through a port right over my head. Rough night, pilots both got our air sick bags.

STAY ON THE BOAT

You read about rescues because you don't read about dog bites man.


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## Don L

midwesterner said:


> Don0190, ......
> 
> This guy who jumped over board was mentally incapacitated and was hallucinating due to a bad drug reaction. He was ill, the same as someone who develops appendicitis, or breaks a leg. You've made it clear that you would sail off and leave such a person because it would be inconvenient to give them aid.


I didn't say that, never once wrote anything related to "inconvient". I wouldn't bring him back on the boat because he was a proven physical danger to the boat and remaining people on it.


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## Minnewaska

zedboy said:


> ......Now that's not fair - the CG report said he tried to reach SAR by VHF and SSB until he reached Parker. If there was someone close by he would have reached them.


Yes, but will the jury believe that? He didn't get closer to Parker the following day, so his comm equip (presumably his SSB) worked. The way it's been reported, it sounds like a good story to cover up a willful abandonment, due to anger in the moment. That's the way I presume the prosecution will portray it. As a lone fact, I don't think it would stand. However, add the testimony that the Captain says he could tell the victim immediately died in the dark, threw a life ring the next day to say he did and never set off the EPIRB and it builds a circumstantial story. May be enough.

Go back and look, no matter how futile it may be.


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## Minnewaska

hpeer said:


> Case 1 He gives the guy the patch. This is negligent because the Capt is misusing the drug, giving it out when he is not an MD.
> 
> Case 2 He does NOT give the guy the patch. This is negligent because the Capt is withholding a possible remedy thereby putting the fellow at risk.
> 
> ......


I don't think this is true. While it appears wrong to administer a prescription drug, I'll bet the good samaritan laws cover the attempt to do good here. I'm not sure the GS laws are Federal, however. Could just be States.

I really can't see one being negligent for not administering a drug that know to be a prescription, as they rightfully can't know if they are doing harm.

The bigger issue, IMO, is that whomever had the prescription would have been advised of the potential for hallucination (perhaps only on the side effect paperwork that came with it). It was amply covered in my safety at sea course and I've never taken the drug. Therefore, they should have known the victim's symptoms could have been inflicted by the drug, regardless of what other drugs he was on or his physical condition. This only plays to the sympathy a jury will have expected them to have, as the prosecutor builds a case for malice.


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## Minnewaska

hpeer said:


> ....I wonder if the lawyers on either side are aware of and/or reading this thread? Maybe we should get some compensation to SailNet for all the great free advice we are putting out there. ��


We certainly can't believe we have all the facts, nor conclude without them. However, it's been proven that crowd sourced analysis has come eerily close to the same conclusion found in official investigations. That was absolutely the case in the Bounty investigation.

That's is not to say we can or should convict, but it will be fascinating to see this unfold. What is different in this thread, from the Bounty, is we have much less information on this Captain's past acts, or other first hand input.


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## zedboy

Minnewaska said:


> The way it's been reported, it sounds like a good story to cover up a willful abandonment, due to anger in the moment. That's the way I presume the prosecution will portray it. As a lone fact, I don't think it would stand. However, add the testimony that the Captain says he could tell the victim immediately died in the dark, threw a life ring the next day to say he did and never set off the EPIRB and it builds a circumstantial story. May be enough.


In the end, unless one of the crew members changes his story, we'll never know - and you could be 100% on.

But the prosecution's job isn't to build a plausible story that he's guilty - their job is to prove that beyond a reasonable doubt. If the crew all say, "We tried to contact anyone we could over SSB over reasonable intervals," the jury will have no basis not to accept that - because they have to have a good reason to believe otherwise.

More likely the prosecution's case will rest on facts that everyone agrees on, and argue that Smith's admitted actions were improper and constitute negligent manslaughter.

Not every guilty guy is convict-able. The system is built that way.

On the other hand, technical legal guilt or not, Smith has been punished by karma big time as it is.


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## outbound

Don- this guy is in the water. You pull alongside. Pull him out of the water. He’s exhausted and delirious. There’s no way he’s a threat to you or crew. You have three guys aware of the situation who could immediately subdue him even if he started to act up.

Zed- any idiot would know this guy is sick. Off his head. Not rational. To hold the crew responsible for his actions seems harsh. But the captain isn’t sick and should be held responsible for his actions and inactions. Unlike on land the captain is responsible for acts of omission. In my view it doesn’t take formal medical training nor a SAS course to see this. Once the crew started to behave in a fashion that demonstrated his distress as captain you have an obligation to address it in some fashion. That omission is negligent. You determine if his distress is non critical but continue to monitor and sail on. Or has the potential to escalate and investigate cause deciding how to intervene. Then intervene and continue to monitor. Or if uncertain as how to proceed seek outside advice. I view this as part of a captains mandate regardless of what the law says. I hope everyone on this thread feels the same way. There’s an implicit contract. You sign on and agree to do what I say. I promise to look out for you and the boat. 
The crew was seasick. He took meds and became irrational. He had no known prior psychiatric history. It doesn’t take formal training to suspect a causal link. Assessment, monitoring and intervention should have occurred well before crew attacked anyone. Situation never should have escalated to the point he jumped overboard. Actions should have occurred even before he became disruptive. 
I’ve thought to share stories that might be illustrative of this contract in action in similar circumstances to demonstrate this but defer unless others will do the same. Perhaps that may help demonstrate this basic point but I hope it isn’t necessary as I see this as being obvious. There are other facets of this story which deserve more discussion.


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## boatsurgeon

outbound said:


> Don- this guy is in the water. You pull alongside. Pull him out of the water. He's exhausted and delirious. There's no way he's a threat to you or crew. You have three guys aware of the situation who could immediately subdue him even if he started to act up.
> 
> Zed- any idiot would know this guy is sick. Off his head. Not rational. To hold the crew responsible for his actions seems harsh. But the captain isn't sick and should be held responsible for his actions and inactions. Unlike on land the captain is responsible for acts of omission. In my view it doesn't take formal medical training nor a SAS course to see this. Once the crew started to behave in a fashion that demonstrated his distress as captain you have an obligation to address it in some fashion. That omission is negligent. You determine if his distress is non critical but continue to monitor and sail on. Or has the potential to escalate and investigate cause deciding how to intervene. Then intervene and continue to monitor. Or if uncertain as how to proceed seek outside advice. I view this as part of a captains mandate regardless of what the law says. I hope everyone on this thread feels the same way. There's an implicit contract. You sign on and agree to do what I say. I promise to look out for you and the boat.
> The crew was seasick. He took meds and became irrational. He had no known prior psychiatric history. It doesn't take formal training to suspect a causal link. Assessment, monitoring and intervention should have occurred well before crew attacked anyone. Situation never should have escalated to the point he jumped overboard. Actions should have occurred even before he became disruptive.
> I've thought to share stories that might be illustrative of this contract in action in similar circumstances to demonstrate this but defer unless others will do the same. Perhaps that may help demonstrate this basic point but I hope it isn't necessary as I see this as being obvious. There are other facets of this story which deserve more discussion.


Well, you certainly passed the, "What do you feel your responsibility to the crew is?" portion of the interview.

If the rest went well, I would consider going on passage with you.


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## Sailormon6

Minnewaska said:


> I don't think this is true. While it appears wrong to administer a prescription drug, I'll bet the good samaritan laws cover the attempt to do good here.


The Good Samaritan Laws say that, unless a caretaker relationship (such as a parent-child or doctor-patient relationship, or, in this case, captain-crew) exists prior to the illness or injury, or the "good Samaritan" is responsible for the existence of the illness or injury, no person is required to give aid of any sort to a victim. That doesn't answer any of the questions we've been wrestling with. It only restates them.

*Did a special caretaker relationship exist?* There was clearly a captain-crew relationship, but the question remains whether that captain-crew relationship was broken when the crew attacked the captain with lethal force. If that relationship was broken, then the principle of the Good Samaritan Law holds that "...no person is required to give aid of any sort to any such person." Your individual morality might hold otherwise, but the law doesn't deal with morality. It deals with the legal relationships between people, ie. whether a legal relationship exists or has been broken, and the legal consequences of that relationship. Morality is left to one's individual conscience. We don't incarcerate people for 10 years because we have moral reservations or uncomfortable feelings about an incident. We do it because the facts contravened a law.

*Did the captain-crew relationship exist prior to the illness?* The facts that we have indicate that the crew member was ill before he boarded the boat, and thus, before the captain-crew relationship was established.

*Was the captain responsible for the existence of the illness?* The captain didn't do anything to make the man sick. Pontious was an experienced sailor. Like all of us, he surely knew whether he was prone to seasickness, and he took no precautions to address his own needs. I don't get it often, but I always carry pills and patches whenever it might be an issue. We must first be responsible for our own wellbeing, and not expect someone else to look after us, especially when we are crewing on a shorthanded small boat.

If you think I'm too insensitive and unfeeling, consider this. My concern is that this law is so broad in it's scope that it might subject a captain like MarkofSeaLife or Minnewaska to 10 years incarceration merely because he was "negligent" in failing to inspect or replace a slightly rusted lifeline, or to carry a SSB transceiver on a short passage. I'm not ready to throw this captain overboard until I see all the evidence. I get that you're working with the limited facts available, but even so, you should understand what's at stake for all of us, and I think we should be alarmed.


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## outbound

BP you picked up on what’s flipping me out about this thread and keeps me posting. Perhaps I’m naive but I truly thought EVERY captain, be it on a daysail or a voyage, knew as soon as someone steps on their boat they are responsible for that life.
Every captain I’ve sailed with monitors their crew. Their function and details that reflect their state of mind and health. EVERY ONE. That there’s any equivocation about this stuns me. I truly thought this was the norm. I understand there can be discussion about legal liability but not this. 
I’ve had many discussions with other cruisers about difficulties they’ve had with crew but always this substrate was assumed by all parties. The discussions have revolved on how to do a better job. What could I’ve done to keep this jerk under control? Have you ever run into this? Don’t use this agency. How do you pick up this lie? Listen to this idiocy? Did you ever run into this? How could I have picked up on this issue before it got out of hand? What’s your walk through with crew? Do you let crew do .....? And so forth.


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## Sailormon6

outbound said:


> Perhaps I'm naive but I truly thought EVERY captain, be it on a daysail or a voyage, knew as soon as someone steps on their boat they are responsible for that life.


That's only useful as a broad general concept, but the law doesn't follow that general principle to it's logical extreme. The law draws lines, and on one side of the line the captain is held responsible for the lives of his crew, and on the other side of the line he is not. The most obvious example that immediately comes to mind is where a crew member attacks you or another crew with a knife, stabbing him repeatedly. If there is no limit to your responsibility for the attacker's life, then you must take care to subdue the attacker without killing him, lest you be incarcerated for 10 years. That might be unrealistic if you are of small size or advanced age. Even though you became generally responsible for his life when he initially boarded your boat, the law relieved you of that responsibility when he commenced a lethal attack on another, and you were free to use any amount of force necessary, including lethal force, to stop his lethal attack. And, by the way, if you are responsible for every life on your boat, how do you meet that responsibility to the crew being stabbed? If you don't stop the perpetrator, the other crew is going to die, and you will have failed in your duty to him.


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## outbound

S6 don’t think your argument holds water. At least not on a “best practice “ review. Will give concrete examples.
Person applies for crew. Has great resume and references check out. Four days into passage I see his processing is slow. Inability to multitask and dangerous when reefing. Forgetful. I switch watch schedule. I have another crew who is most impressive to extent I sleep on his watch. I arrange either he or I is on deck when suspect crew stands watch. Suspect crew is not allowed to leave the cockpit and go forward. I see suspect crew has poor balance. Passage goes well. At my suggestion crew gets his B12 level checked. Found to be deficient. Gets replacement and cognition improves to normal. This individual had pre-existing illness before he boarded the boat. It was my bad I didn’t pick it up until four days into the voyage. It’s my responsibility to keep him and the the boat safe.
Crew admits to rare seasickness on prior passage. Has always passed in one to two days. Has never missed watch. We have small diesel spill from examination port on top of one of the fuel tanks due to bad seal. Diesel smell gets him going. He labors through. Stands his watch. I see he’s becoming slightly loopy. See him puking time to time. Sit him down and his skin tents when pinched, color is bad and very argumentative. I take him off the watch schedule. He yells and screams at me waking other crew. They help me talk him down. He got friendly with another crew. He helps me get seasick crew rehydrated, in his bunk (we switched bunks to get him in the middle) and on meds. That crew is assigned to monitor and report to me. Lousy passage but safe.
Have crew who is performing excellently but find he’s a closet drinker. He’s in the quarterberth so spends his offwatch there with door closed at time. Stuck as he’s best crew aboard. As per my protocol he had been told run a dry boat on passage. He is difficult to arouse when I try to get him up to help me with work on the foredeck. Do the work. Next day see nips in his berthing area.
Take him aside and privately discuss my suspicions. He’s an alcoholic. If I make him dry he may D.T. If I let him drink he maybe drunk when needed. Resolve he will surrender all alcohol he has. I will give him two nips when he goes offwatch if I feel weather permits to prevent withdrawal. Rest of boat stays dry and rest of crew was told of this beforehand so already knows to inform me of violation.
Doing passage as crew. Thru hull fails. Weather picks up. Floorboards floating. Owner flips out. Screaming “we’re going to die, we’re going to die....” owner is violent toward brother(captain). Owner restrained, place in a sleeping bag and duck taped in so he can’t escape. Placed in forward berth. We all carry on. Scariest trip of my life. Still all survived.
In short, pre existing illness is no excuse to my mind. As captain you still have an obligation to deal with it. Preserve life and health .
Having made a bad choice for who you let crew on your boat is no excuse either. You picked them. You let them on the boat. You need to deal with it. Doesn’t matter if they lied to you during the vetting. It’s still your bag of sh-t. Doesn’t matter what preexisting condition they have.


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## outbound

Ok S. But if the crew attacked you due to delerium (therefore not responsible for his behavior legally) and the delerium was due to your failure to do your duty and monitor his health and act appropriately aren’t still liable for your failure to do your duty as captain?


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## outbound

This thread reminds of the Monty Python “this bird is dead” skit.

This captain failed in his obligations. Can’t see it any other way. Please help me understand why I should.


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## Sailormon6

I think it's commendable that you were able to deal with those situations successfully. Now, having replied to all your scenarios, why don't you address my scenario in post #493. How would you interrupt a man in the midst of an uncontrolled murderous rage against another crew, while being careful not to harm him and, incidentally, without getting yourself killed?

Don't tell me you're going to knock him out with a winch handle. If you have an absolute burden to preserve his life, exactly how much force can you hit him with without killing him, while disabling him enough to be able to bundle him up in a sleeping bag? It would take an extraordinary amount of medical knowledge and skill to get that amount of force just exactly right, and the likelihood of the average skipper having that much medical knowledge and skill seems remote.


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## Sailormon6

outbound said:


> Ok S. But if the crew attacked you due to delerium (therefore not responsible for his behavior legally) and the delerium was due to your failure to do your duty and monitor his health and act appropriately aren't still liable for your failure to do your duty as captain?


If anyone attacks me with lethal force, I have every legal right to use lethal force to defend myself. If his behavior is due to delirium, he might not be legally responsible for his behavior, i.e., he might not be guilty of the crime of assaulting me, but I'm nevertheless at liberty to use deadly force to defend myself. I don't have to let some crazy guy kill me.

The question of my failure to do my duty and monitor his health and act appropriately is a separate issue. I addressed the legal aspects of those issues in my post #491, above and suggest you re-read it carefully. You might think that duty is clear. I don't, and I certainly don't think it's parameters are clear enough to inform the average captain what he must do to avoid a 10 year prison sentence. If the law itself doesn't meet that minimum standard, then the law is void for vagueness and unenforceable. How much medical knowledge and skill must he have. Must he be capable of diagnosing an illness with the skill that you were able to, and must he be able to prescribe an appropriate course of treatment? What medications must he carry? Where does the law answer these, and many other questions? If the answers are there, I haven't seen them yet.


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## SeaStar58

Sailormon6 said:


> I think it's commendable that you were able to deal with those situations successfully. Now, having replied to all your scenarios, why don't you address my scenario in post #493. How would you interrupt a man in the midst of an uncontrolled murderous rage against another crew, while being careful not to harm him and, incidentally, without getting yourself killed?
> 
> Don't tell me you're going to knock him out with a winch handle. If you have an absolute burden to preserve his life, exactly how much force can you hit him with without killing him, while disabling him enough to be able to bundle him up in a sleeping bag? It would take an extraordinary amount of medical knowledge and skill to get that amount of force just exactly right, and the likelihood of the average skipper having that much medical knowledge and skill seems remote.


By showing due diligence in the days preceding the event so things would never escalate to this point. From what all crew members have stated it was no big surprise and that this guy was unfit to be on this vessel even before he stepped on board. Everyone I know would have given him the "So sad to see your not feeling well but you can't crew on my boat until you get checked out by a doctor and your health issues are taken care of" and would not have allowed him to even attempt boarding the boat.

I have sent workmen in better health home and told them they can't return without a doctors note in order to work an 8 hour shift on land where local medical facilities, ambulances and police are readily available. To sign that person up as working crew for week long passage and then allow them to board in such a state of water retention and circulatory distress that they could not put their shoes on is unthinkable and irresponsible. This captain had already failed to do his job right there at the dock before the first line was cast off. He wasn't hiring this man to sit at a desk and such but to do physically demanding labor in a dangerous environment for which he was very obviously not physically capable.

I would have exercised my burden to safeguard not just him but my entire work crew along with myself as I have always done which was by sending him home and not allowing them to endanger themselves, my workers or my property giving him firm admonishment to see a doctor and get his health in order before coming back even going so far as paying his cab fair to get him to the doctors or home.


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## john61ct

MarkofSeaLife said:


> If a judge and jury thinks differently this case is going to be even more interesting! We are going to have to change the way we do things... Wether folks want new laws or not. It would be stupid to do the same old stuff if we get 10 years for it.
> 
> I think that with the lack of instant communications too. It's 2019 not 1930! The Reasonable skipper taking humans to sea better have the kit and better fire the Epirb off or sit in jail and rot IMHO. I'm very interested to hear a judge on that one. Very interested in deed. To lose a person overboard and not use the EPIRB is staggering.
> 
> So I'm absolutely with you that this case is riveting. It feels like it could be a game changer in just about every facet of the voyage. Every facet.


I was with you 100%, right up to

> Soon this case may make it mandatory for offshore boats to have instant communications to tend the health and help save the lives of people we take to sea.

No! That puts up economic / social class based barrier to boating I can't abide.

Perhaps if requirements were mandated based on income, or the minimum tax-assessed value of the boat or something.

But really just from the principle of individual freedom, even a wealthy man and his friends should be allowed to attempt crossing oceans in a bare coracle with nothing but ziplocs of food and jugs of water if they so choose.

IMO


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## john61ct

But the captain of that coracle needs to exercise a high level of care for the others aboard.


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## hasher

mstern said:


> If I'm the defense lawyer here, I'm doing my best to make sure my client doesn't have anyone like that on his jury.


Having practiced in the courts (yes practice, I'm not saying it has ever been perfected), I would agree that most cases are decided when you pick the jury. That's why I like to have a woman by my side when I do such. They seem to discern more than I do about the folks we are selecting.


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## outbound

Agree you have every right including lethal force to defend yourself. I’ve racked my wingmaster with every intention to use it when someone broke through the glass slider into my house. I didn’t give a rodents behind as to why they did that. Fortunately they took off.

But that has absolutely nothing to do with this scenario.

1. Crew presented no risk to the boat, captain nor crew floating in the water. Neither did he present a risk if taken back on board and immediately restrained if necessary.

2. Even if left to die his death was due to the negligence of the captain. Who therefore is culpable for that death. Furthermore whether the crew lives when another vessel picks him up or dies due his boat sailing away has no bearing on the existence of the captains negligence. The negligence occurred BEFORE the episode of violence. I can see how it maybe reflected in sentencing by the no harm-no foul rule but not on whether negligence was present. 

The captain f#cked up. Due to the captains f#ck up the crew lost his mind and attacked the captain. How does this excuse the captains f#ck up?

Think you have the causal chain in reverse.


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## Don L

People sure getting good at cheering the same walk the plank position.


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## john61ct

outbound said:


> whether the crew lives when another vessel picks him up or dies due his boat sailing away has no bearing on the existence of the captains negligence. The negligence occurred BEFORE the episode of violence.


now THAT is the key point afaic.

His pathologically callous disregard for human life was **further** demonstrated by his failures after MOB.

But the really serious negligence was before it.


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## MarkofSeaLife

If the Captain was scared for his life he would have put his pistol in his pocket.


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## chef2sail

outbound said:


> Agree you have every right including lethal force to defend yourself. I've racked my wingmaster with every intention to use it when someone broke through the glass slider into my house. I didn't give a rodents behind as to why they did that. Fortunately they took off.
> 
> But that has absolutely nothing to do with this scenario.
> 
> 1. Crew presented no risk to the boat, captain nor crew floating in the water. Neither did he present a risk if taken back on board and immediately restrained if necessary.
> 
> 2. Even if left to die his death was due to the negligence of the captain. Who therefore is culpable for that death. Furthermore whether the crew lives when another vessel picks him up or dies due his boat sailing away has no bearing on the existence of the captains negligence. The negligence occurred BEFORE the episode of violence. I can see how it maybe reflected in sentencing by the no harm-no foul rule but not on whether negligence was present.
> 
> The captain f#cked up. Due to the captains f#ck up the crew lost his mind and attacked the captain. How does this excuse the captains f#ck up?
> 
> Think you have the causal chain in reverse.


It's all an intellectual exercise of logic to you. Have you ever been in a situation where you were isolated....and attacked physically by someone much large than you?

No one to turn to to defend yourself but yourself. If you have never been in that situation it's rediculous to comment on how you would handle that physical threat. It's not an intellectual exercise at that point anymore.

It's not the same situation as trying to get someone who broke into your house You don't really care how or why they became that way, you just choose to survive and defend yourself.

Also...He jumped off the boat. Let's call it what it is...SUICIDE. he chose to commit suicide on his own free will. What right do you have to stop him?
Only argument you have is he was out of his mind.

The only issue I have is that the captain did not alert anyone and heave to so the body could be recovered by others, That draws suspicion but there may be an explanation.

Now you want to stop an play amatuer analysis on a scenerio you are speculating on surface facts you have obtained from the news ( we know how unbiased and reliable they are) or general CG report. I prefer to wait for more facts than pontificate on theories.

What a Rediculous irrelevant t statement t..I was right about the Bounty and the crowd sourse opinion was right, therefore the crowd source option should be listened to because it was right. Really.... Even a stopped watch shows correct time twice a day.

With a person assaulting you and your crew , again who cares why he's in that state.....he is....and he's right in front of you. And then He makes it easy for you by committing suicide and removed the threat and any future threat by his own actions. I am sure they felt and we're safer with him gone.

Since we see/ here so many unverified speculation theories how about trying this one........ CG finds a boat drifting...blood everywhere...crew and captain dead by beating....one person completely missing....it's .THE MURDERER...THE RESCUED MURDERER. They determine that a rescued crew member killed everyone then jumps overboard for a second time committing suicide successfully finally.


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## MarkofSeaLife

chef2sail said:


> ....... CG finds a boat drifting...blood everywhere...crew and captain dead by beating....one person completely missing....it's .THE MURDERER...THE RESCUED MURDERER. They determine that a rescued crew member killed everyone then jumps overboard for a second time committing suicide successfully finally.


Ummmmm have your tablets gone a bit haywire?

The Captain had a handgun.

He could have used to to ensure a safe rescue.

Mark


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## outbound

Yes, I grew up on the lower east side of Manhattan so yes I’ve been attacked by someone larger than me.
Yes, I’ve been on a boat where someone became totally irrational.(see above)
Yes, I’ve stated that we don’t know all the facts and repetitively stated my opinion is based on the information as presented.
No, this isn’t theoretical for me. This is a major concern in my life. How can I be a better captain. I do passages. For that activity I take on crew. People ive never known before the passage frequently. I’ve been unlucky at times in selection. I’ve had jerks as crew and have crewed under jerks given the less frequent occasions I’ve crewed for others on passage. This or a similar scenario maybe in my future. This is a serious situation where a man lost his life. If you want to discuss how this could be prevented I’m all over it. But if you want to take away the reassurance that captains will look out for their crew and if they don’t no consequences will occur I’m going to continue to be in your face.
From available information this captain did not captain well. As asked before what insight or information can you present to change that opinion.


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## Minnewaska

Sailormon6 said:


> If anyone attacks me with lethal force, I have every legal right to use lethal force to defend myself. ..... I don't have to let some crazy guy kill me. .....


No, you don't have the let them hurt you. However, the attack was described to have stopped and the victim jumped over voluntarily. You are not permitted to hold your right to defend yourself, beyond the threat. Doing so is revenge, not defense, and is blatantly illegal.

You might fail to bring the victim back aboard, if you feel the threat would recur. However, there is no threat in locating him, providing flotation and waiting alongside, until you can contact help or the victim loses enough energy that you no longer find them a threat. That was this Captain's duty and it's reported that he thought it wasn't necessary because he saw the victim instantly die, in the dark. I don't think the Prosecutor believes that is the reason he didn't go back. He may believe it was anger or revenge.


----------



## Minnewaska

outbound said:


> Ok S. But if the crew attacked you due to delerium (therefore not responsible for his behavior legally) and the delerium was due to your failure to do your duty and monitor his health and act appropriately aren't still liable for your failure to do your duty as captain?


Agreed, and add that the attack had already stopped too.

The argument that one might be prevented from applying legal force to defend against lethal force is not in the fact pattern here. The lethal situation had ended. It's quite clear that you can't shoot your attacker in the back as revenge, if you are no longer under attack. Even the Castle laws only protect your home, in the few states that have them, and the victim here was already given permission to be aboard.


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## Minnewaska

Sailormon6 said:


> The Good Samaritan Laws say that, unless a caretaker relationship (such as a parent-child or doctor-patient relationship, or, in this case, captain-crew) exists prior to the illness or injury, or the "good Samaritan" is responsible for the existence of the illness or injury, no person is required to give aid of any sort to a victim. That doesn't answer any of the questions we've been wrestling with. It only restates them


Something may have gone amiss in the quoting, but that passage of mine that you quoted referred to whether one was guilty of actually administering a prescription drug to someone it was not prescribed to. For that scenario, I suspect the good samaritan law would avoid negligence.

To your point that no one is compelled to provide aid, I understand. This is true in the US, but not in other countries.

As a twist, good samaritan laws are state laws and they differ widely. A quick look suggests that some states actually do require you to immediately report many circumstances, while others only provide protection for care to certain circumstances or individuals. Not sure there will be good samaritan protection in international waters, other than the volunteers protection act which I don't think covers this crew, as federal law should apply to the US flagged vessel there.



> ......My concern is that this law is so broad in it's scope that it might subject a captain like MarkofSeaLife or Minnewaska to 10 years incarceration merely because he was "negligent" in failing to inspect or replace a slightly rusted lifeline, or to carry a SSB transceiver on a short passage.......


I appreciate your concern, but I can't see a prosecutor, let alone a jury, seeing the failure to attempt a recovery of a sick person you just saw jump overboard as in the same zone as an equipment failure of a slightly rusted lifeline. They can prove the Captain knew the victim went overboard and that he decided not to try a recovery, they might have a harder time proving he knew of the slight rust or willfully did not address it.


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## SeaStar58

I don't believe there is any discrepancy in the description of Poteus the day he stood on the dock suffering from health issues so severe that he could not put his shoes on his swollen feet and the Captain allowed him on board to be a member of a limited working crew on a small boat doing a weeks long passage. How would it be a surprise that someone in that physical state could suffer oxygen depletion to the brain or have prescription drug interaction issues and hallucinate, become unreasonable or violent? These points about his health from day -1 were never debatable and would have failed him for getting any job on land that required strenuous physical activity even as a bagger at a market never mind as working crew on a sailboat. Poteus last act could have simply been his death rally as people who are dying will often also hallucinate and become violent shortly before they die with their anger being focused on the persons they view as responsible for their suffering.

A wise man put it this way thousands of years ago so it has stood up to the test of time having been proven to be true many times over - "The prudent sees danger and hides himself, but o the simple go on and suffer for it." and this Captain failed to be prudent suffering the consequences plus made his entire crew suffer for it for days culminating in the death of one of them.

Being simple minded or foolish is not allowable when your the Captain so you are expected/obligated to act wisely/prudently.

There may be enough ambiguity in the regs to get this Captain off with little or no additional consequences but that does not change the foolish way he acted when taking an obviously sick man on his boat to do physical labor under potentially harsh/difficult conditions. Whether this was due to stupidity, greed, time constraints or any other reasons it does not change the foolishness carried out here by the Captain that lead to the death of an individual and endangered everyone on his boat.

At the least we have a cautionary tale about being more prudent/wise about allowing people with severe health problems to crew on our boats which by bringing it to court hopefully will raise awareness about being more diligent when hiring crew members and being better Captains.


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## Don L

MarkofSeaLife said:


> Ummmmm have your tablets gone a bit haywire?
> 
> The Captain had a handgun.
> 
> He could have used to to ensure a safe rescue.
> 
> Mark


by what, pulling the boat up and shooting the guy while in the water (assuming they could find him)

or maybe it goes

"Hey Mr Crazy Dangerous Person experiencing delusions and who has apparently lost touch with the real world and attacked us and then yelled some crazy stuff and jumped overboard. I want you to understand that I have a gun and when we bring you back into the cockpit if you do anymore crazy dangerous stuff I'm going to try to shoot you without shooting myself or anyone else. Do you fully understand this??"

Come on be real


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## chef2sail

MarkofSeaLife said:


> Ummmmm have your tablets gone a bit haywire?
> 
> The Captain had a handgun.
> 
> He could have used to to ensure a safe rescue.
> 
> Mark


There was a handgun on board. That's all we know.

Besides .....
The man committed SUICIDE....what right does anyone have to countermand those wishes. Suicide is the same as a DNR.

He should have gone back to recover the body


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## chef2sail

outbound said:


> Yes, I grew up on the lower east side of Manhattan so yes I've been attacked by someone larger than me.
> Yes, I've been on a boat where someone became totally irrational.(see above)
> Yes, I've stated that we don't know all the facts and repetitively stated my opinion is based on the information as presented.
> No, this isn't theoretical for me. This is a major concern in my life. How can I be a better captain. I do passages. For that activity I take on crew. People ive never known before the passage frequently. I've been unlucky at times in selection. I've had jerks as crew and have crewed under jerks given the less frequent occasions I've crewed for others on passage. This or a similar scenario maybe in my future. This is a serious situation where a man lost his life. If you want to discuss how this could be prevented I'm all over it. But if you want to take away the reassurance that captains will look out for their crew and if they don't no consequences will occur I'm going to continue to be in your face.
> From available information this captain did not captain well. As asked before what insight or information can you present to change that opinion.


Being arracked in the middle of the ocean no where to go is a different fear than you have experienced.

Your obligation as Captain is to the whole crew....not just him. Besides he committed suicide


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## Arcb

^^^ I think folks who work in the emergency services, including marine SAR, spend considerable resources on suicide intervention.


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## hpeer

Arcb said:


> ^^^ I think folks who work in the emergency services, including marine SAR, spend considerable resources on suicide intervention.


That is true, that doesn't apply to everyone.


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## chef2sail

Arcb said:


> ^^^ I think folks who work in the emergency services, including marine SAR, spend considerable resources on suicide intervention.


And how long would they have taken till they arrived. If he was determined to end his life ....he did. Maybe he joined this yoyage with those intentions.


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## Arcb

chef2sail said:


> ..what right does anyone have to countermand those wishes.





chef2sail said:


> And how long would they have taken till they arrived. If he was determined to end his life ....he did. Maybe he joined this yoyage with those intentions.


You posed the question, what right does some one have to intervene in a suicide? I was demonstrating that the right to intervere in self harm is well established.


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## hpeer

Chief,

That thought has crossed my mind also. Clearly he was taking anti-depressives, and then stopped. Of one thing I am certain, there are times, too many times, when we hide our true motives from ourselves. It’s very hard to know our true minds. 

Consider this: have you ever been suprised in a dream? How is that possible if you are truly aware of your thoughts? A lot goes on down inside our heads. 

Take the reports of hallucinations. I have audio hallucinations when solo sailing for extended periods. I know what they are, and they can be annoying. But it’s just the mind trying to make some random, repetiative sound fit into something it has already categorized. Thus a swinging lamp becomes the roar of the crowd at a distant stadium, or a radio i can’t make out. When they go deeper, and become interpreted by some inner demon is a different matter. And not at all obvious to the outsider. 

So I’m not saying he consciously got on the boat with the intention of suicide. There could be deeper thoughts that pushed in that direction. Clearly he made many poor choices in asking for the position, taking it, not telling the Capt about his drugs. 

One thing that I find curious was that supposedly he was seasick, but was reported to be pacing the cabin. My experience is sea sick people don’t pace around. I can see the Capt. interpreting that behaiour as him getting slowly better. 

None of us were there.

Sooooo many questions.


----------



## hpeer

When we get into questios such as the right and or responsibility to intervene to prevent self harm we are getting on very tricky ground; legaly, morally, ethically. 

While intriguing the are devilishly difficult to gain any consensus. 

Nor can either side prove or disprove the assertion. It’s all in the dead guys head. We will never know.


----------



## Sailormon6

Minnewaska said:


> Something may have gone amiss in the quoting, but that passage of mine that you quoted referred to whether one was guilty of actually administering a prescription drug to someone it was not prescribed to. For that scenario, I suspect the good samaritan law would avoid negligence.


You're confusing tort law with criminal law. Generally a good samaritan law will shield a person who furnishes aid to another from a tort lawsuit for money damages as long as the attempt is not made recklessly. I don't know for sure, but strongly suspect that a court would conclude that it is reckless to furnish aid in violation of a criminal prohibition. It's a crime to provide a prescription medication to someone it was not prescribed to. I know of no case in which the good samaritan law has ever been held to excuse a violation of a criminal law.



> To your point that no one is compelled to provide aid, I understand. This is true in the US, but not in other countries.


 Actually there are a few states that have "duty to rescue" laws, but they are generally limited in their applicability, and would not be relevant here.



> Not sure there will be good samaritan protection in international waters, other than the volunteers protection act which I don't think covers this crew, as federal law should apply to the US flagged vessel there.


The good samaritan laws devolved through the common law and the general principles would be applicable, but probably not in this fact situation.



> I appreciate your concern, but I can't see a prosecutor, let alone a jury, seeing the failure to attempt a recovery of a sick person you just saw jump overboard as in the same zone as an equipment failure of a slightly rusted lifeline. They can prove the Captain knew the victim went overboard and that he decided not to try a recovery, they might have a harder time proving he knew of the slight rust or willfully did not address it.


Prosecutors and juries only examine and rule upon one case at a time. They don't compare one case with another. Each case must be reviewed separately, on it's individual facts.

IMO, the law under which this captain is being prosecuted only requires a showing of ordinary negligence, not gross negligence or willful and wanton negligence. How would they prove you knew of the deteriorated condition of your lifelines? Well, they'd look at photos recently taken of your boat that show rust stains on the white coating. Also, they'd ask you, "Didn't you see the rust stains on your lifelines?" Answer: "Yes, but I didn't think they were that bad." That proves they were deteriorated, you knew they were deteriorated, you didn't repair them, someone fell through and died as a result of your negligence, and that's a prima facia showing of a crime. You're sentenced to 10 years in the pokey. Go with that nice officer.

Whether this captain is convicted is primarily a matter of concern to him. But, a sloppily written, overly broad, vague law that imposes unrealistic burdens on us, that fails to give us reasonable guidelines or standards of guilt, so that we can know in advance what conduct we must avoid in order to avoid being prosecuted for a crime, and a law that provides a draconian penalty, affects us all. That's my concern, and it ought to be your concern.


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## MarkofSeaLife

If the guy was delusional it wasn't suicide. It was the result of an illness. Either pre-existing or pre-existing exacerbated by drugs given by the captain, or as a direct side effect of the heart drugs and the seasickness drugs.

In any way, it wasn't suicide IMHO.

In every way the onus is on the Captain to look after him. 

And anyone telling a judge that someone with a mental illness deserves to be left to die is gunna regret that though whilst polishing a grimy jail cell.


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## Minnewaska

Sailormon6 said:


> .....You're sentenced to 10 years in the pokey. Go with that nice officer.


This is where you are overstating your case. The statue calls for a fine and/or up to 10 years, for the explicit reason that the individual circumstances would dictate variable sentences. You're trying to suggest that any act of negligence would be treated with the same 10 year sentence and, by definition in the law, that's not correct.

I would not worry about going to jail for slightly rusted lifelines. I would worry about it for failing to attempt to recover a crew member that jumped overboard, for any reason.



> That's my concern, and it ought to be your concern.


We should defend our own positions, but please don't degrade the discussion by telling me what I should think.


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## Arcb

For those who are concerned they may not have the right to assist a man in the water on the high seas, regardless of how he got there.

This is taken from the International Convention on Salvage, of which the United States is a signatory:
*
"Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea."*


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## chef2sail

Arcb said:


> ^^^ I think folks who work in the emergency services, including marine SAR, spend considerable resources on suicide intervention.


True,,,but in this case he followed through with the act.

I my experience ( I have a masters in psychology) I find that people who follow through with the act have decided thatif intentions. Jumping overboard at night into built seas in the middle of the ocean is far different from someone taking pills who you found or some at the edge of a roof on the building. Once the jumper does the act ....which is usually as ply instant death and they know it.....you can't prevent it. By the time any SAR had gotten there he'd have been dead...assuming that he wasn't dead in the initial jump off the boat.


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## Minnewaska

I'm aghast that anyone would think they were even slightly capable of determining a conscious act of suicide, in this case. That's a gross reach of defense. According to the report, he made no such claim and left no such note. If anything, the report speaks of a man who was not aware that he was jumping overboard, rather he thought he was going through a door he saw in the sky, or just exiting the vessel he was afraid of, without recognition he would drown. 

The point has been made repeatedly. You don't have the right to be judge, jury and executioner. Assuming it was suicide is standing in judgement over the victim and that seems to be exactly the crime here. He had a duty to attempt a recovery and the only exception is for someone you have the burden of proof to know what already dead. He knows that, which is likely why he is claiming to know the victim died immediately (which no one can logically believe he saw at night, let alone does anyone drown immediately).


----------



## chef2sail

MarkofSeaLife said:


> If the guy was delusional it wasn't suicide. It was the result of an illness. Either pre-existing or pre-existing exacerbated but drugs given by the captain, or as a direct side effect of the heart drugs and the seasickness drugs.
> 
> In any way, it wasn't suicide IMHO.
> 
> I'm every way the onus is on the Captain to look after him.
> 
> And anyone telling a judge that someone with a mental illness deserves to be left to die is gunna regret that though whilst polishing a grimy jail cell.


Mark...respectfully disagree
Delusional....that's the thread conlusion but no fact in evidence to 
Support that. Also that it was exacerbated by the drugs given by
The captain.....again. assertion not fact. Facts are different Han
Conclusions from the evidence you and others interpret
You, nor anyone else here can make ANY factual case on it not being
Suicide. The known facts actually support that's just what happened
1- man knows Himself not qualified by goes on offshore passage
2- man stop taking drugs which keep him calm...notice he makes 
That choice himself while under their influence. Well before
The Captain gave him anything. Quite possible his symptoms
At sea wrrecause by withdrawal of his drugs. In fact the 
Fact he got worse and worse supports this. He chose to
do this.
3. No one knows if the delusionall state ( which he inflicted on 
Himself ) was the determining factor in following through
With his suicide. I would more than likely believe by his
actions he planned to do that as long. Why else would he
Stop taking the medication which kept those thoughts 
at bay in his head.

Once you look at this as a suicide, it mitigates the Captains criminal negligence.

I find the fact that the Captain did not go back to rescue the body, indefenseable nor call bout it.


----------



## mstern

Minnewaska said:


> The statue calls for a fine and/or up to 10 years, for the explicit reason that the individual circumstances would dictate variable sentences. You're trying to suggest that any act of negligence would be treated with the same 10 year sentence and, by definition in the law, that's not correct.


This is a different issue than "is the Captain guilty?"; it's "is the statute in and of itself fair?". Leaving aside the captain's actions, as a lawyer, sailor, scholar and bon vivant, I am quite concerned that this statute is so far out of whack with every other criminal statute I've ever dealt with that I do not believe it should still be on the books in its present form. For starters, the standard of criminal liability for ordinary negligence is simply too low. Almost any conduct that leads to injury can be seen as negligent, and it practically vitiates the proof beyond a reasonable doubt standard that is required in every other criminal matter. But just as bad, the potential penalties are too stiff. Judges today are guided in their sentencing by strict standards and guidelines. And while the trend is now to give back judges some of the discretion they previously had, it will never be as open-ended as contemplated by this statute. And in my humble and correct opinion, it should'n't be.

Minne, you argue that it is reasonable to assume that a judge will treat different infractions of this law differently in applying a penalty. I would hope you are correct, but one of the biggest problems in doing so is getting consistency among the various judges and courts in applying a sentence. It is anathema to practitioners of criminal justice to know that the sentence imposed depends entirely on which judge hears the case. A fair and just criminal justice system consistently applies the same laws in the same ways no matter where the crime occurs and who hears the case. And while there will always be variations in sentences because, well, that's human nature, when you have a statute like this that is so rarely prosecuted that there are no precedents to follow, and is so out of whack in terms of its structure that there are no federal sentencing guidelines that apply, it really does turn into every man for himself. Not good.

If Congress in its infinite wisdom wants to hold masters at sea to a higher standard than the general public, there are ways to do so that are consistent with modern criminal law. They should repeal this anachronism and replace it with something more in line with the current federal code.


----------



## chef2sail

Minnewaska said:


> I'm aghast that anyone would think they were even slightly capable of determining a conscious act of suicide, in this case. That's a gross reach of defense. According to the report, he made no such claim and left no such note. If anything, the report speaks of a man who was not aware that he was jumping overboard, rather he thought he was going through a door he saw in the sky, or just exiting the vessel he was afraid of, without recognition he would drown.
> 
> The point has been made repeatedly. You don't have the right to be judge, jury and executioner. Assuming it was suicide is standing in judgement over the victim and that seems to be exactly the crime here. He had a duty to attempt a recovery and the only exception is for someone you have the burden of proof to know what already dead. He knows that, which is likely why he is claiming to know the victim died immediately (which no one can logically believe he saw at night, let alone does anyone drown immediately).


I am equally aghast than an airplane pilot who has very little expertise in the law, psychology , or maritime rules thinks he has a right to know all that he can vehemently dismiss anyone elses opinion with such condescending tones and vigor.

We all have a right to our opinions here. They all carry weight...after all they are all made here on speculations with very little facts. The fact that you literally shout down ( by your incredible volume of posts) all opposiing viewpoints by ridiculing them speaks volumes. Carrying on like that limits others who want to participate in the discussion.

Surely you can make your points without doing that like Outbound , Boatsurgeon , Mark seem able to do. I may disagree with some of what they are posting, however I recognize that's their perspective. I don't see them ridiculing others opinions either.

Remember none of us will be proven 100% right here. I'm sure their are some truths will come out that a myriad of us has posted.
While I may disagree with some of what he says,

I do not excuse the Caprain of not turning back to recover the body , stand watch or calling the CG. However the more it is revealed that the dead man had deep psychological issues makes more of a case that he came aboard with thm. An outsider, a captain untrained would never be able to midigate this. May not even be able to recognize that as the he came aboard to commit suicide. Or even that he progressed to that. The first step was he see need the individual topped taking the medication which may have blocked that.

I am hoping that there is a pre trip psychological trail on him. It may give a perspective on an individuall heavily medicated with delusionl/ suicidal tendencies. As long as he took his medicine he see could be observe to be close to normal. Soon as he stopped ,on his own free will , taking the medicine the long decline ino the abyss started with the final page ending with him committing suicide.


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## chef2sail

Minnewaska said:


> I'm aghast that anyone would think they were even slightly capable of determining a conscious act of suicide, in this case. That's a gross reach of defense. According to the report, he made no such claim and left no such note. If anything, the report speaks of a man who was not aware that he was jumping overboard, rather he thought he was going through a door he saw in the sky, or just exiting the vessel he was afraid of, without recognition he would drown.
> 
> The point has been made repeatedly. You don't have the right to be judge, jury and executioner. Assuming it was suicide is standing in judgement over the victim and that seems to be exactly the crime here. He had a duty to attempt a recovery and the only exception is for someone you have the burden of proof to know what already dead. He knows that, which is likely why he is claiming to know the victim died immediately (which no one can logically believe he saw at night, let alone does anyone drown immediately).


And BTW....in suicides....a very small percentage leave notes.


----------



## Sal Paradise

chef2sail said:


> There was a handgun on board. That's all we know.
> 
> Besides .....
> The man committed SUICIDE....what right does anyone have to countermand those wishes. Suicide is the same as a DNR.
> 
> He should have gone back to recover the body


No, he did not commit suicide. He was sick. He hallucinated a door and he went towards it. There was no intention of killing himself. He was a sick person. Its no different than a person with a high fever falling down a flight of stairs. Which is why it was criminal not to go back and look for him. I read up on him a bit and he was a well known and respected person in his community. He got sick, and his sickness made him think he could get off the boat, but he was not suicidal. He was hallucinating. If he could have been treated, he would have returned to his happy life and loving family.


----------



## SeaStar58

In many parts of the world abandoning or refusing aid is a criminal offense especially if it can be held that you had a part in putting that person in danger. Even if physically attempting a rescue yourself isn't possible you have to call for help incessantly until help is contacted and mobilized or you run out of means to do so such as dead batteries so none of this "I tried once and then again the next day or so". In general its considered morally repugnant to fail to immediately attempt to render aid or summon aid by radio, telephone, EPIRB, aerial flares, running around screaming, etc. Those attempts can fail but at least you tried.

Where I grew up in Massachusetts a man fell asleep in a small boat that later slipped its anchor and he died when it went over the falls however afterward several people bragged how they saw the boat drifting and knew he was going to go over the falls. The were all charged for doing absolutely nothing to rescue the man so negligent homicide. They could have shouted, thrown things at the boat, gone out after him in their own boat, called the police/fire dept or even just the operator (this was before 911 became available) but they did nothing until after it was all over and then it was just to basically say they knew he was going to die.

In Essen Germany a few years back a elderly man had a heart attack in a bank and later died. Several people stepped over him to go about their business and were identified due to security camera footage, charged and fined thousands of Euros however the one who called it in on his phone was noted as having provided sufficient assistance so he was not included in the indictment. These people were just bystanders and not the Bank Manager or part of the banks staff and they were still viewed as accountable so how much more so accountable would they view the Captain of a boat.

Some Asiatic countries used to view refusing to render aid as an act of treason which carried the death penalty regardless of whether the victim died or not.

Perhaps this Captain is more fortunate that he is being tried in a US Court and not in a country where they have a much dimmer view of this.

No matter which end of the story you are most targeted on this Captain really messed up morally and ethically.


----------



## OldEagle

A few notes:

Chef2sail, I've read many of your posts over the past few years, and you've always struck me as a knowledgeable and thoughtful poster--so I'm dismayed by your assessment of this case.

Once again, I'm commenting on the facts as they have been reported, with the understanding that the actual facts might differ. However, the facts in the various reports, do seem consistent in their main elements, and their sources are the captain and the surviving crew--so the story they provided is presumably a presentation "favorable" to them.



> Delusional....that's the thread conclusion but no fact in evidence to support that.


I'm sorry but this is mistaken: the reports are that the victim was hallucinating over a sustained period of time, including at the time of the final confrontation. He was delirious. The accounts report him seeing things that did not exist. They report him saying that he was no longer aboard the boat he had boarded. Those are delusions.



> Also that it was exacerbated by the drugs given by the captain.....again. assertion not fact


Actually, on this point I agree with you. This man clearly had a significant underlying medical illness. After a period of seasickness, with prolonged vomiting, he became delirious. I do not know whether the delirium was due to the physical consequences of prolonged vomiting superimposed on his baseline illness, or to the effect of the scopalamine in that situation, or to some mixture of all of these. However, from the standpoint of the captain, it doesn't matter. What matters is that he had a sick crewman, deteriorating to the point of hallucinations, i.e., a medical emergency, with no obvious corrective measures that he could take on board. We have no evidence that he took action to obtain external help--changing course to nearest port, radio calls for assistance, etc.



> "You, nor anyone else here can make ANY factual case on it not being
> Suicide. The known facts actually support that's just what happened
> 1- man knows Himself not qualified by goes on offshore passage
> 2- man stop taking drugs which keep him calm...notice he makes
> That choice himself while under their influence. Well before
> The Captain gave him anything. Quite possible his symptoms
> At sea wrrecause by withdrawal of his drugs. In fact the
> Fact he got worse and worse supports this. He chose to
> do this."


Again, you are mistaken--suicide is the intentional taking of one's own life. The account provided by the captain is that in the victim's delusional state (not understanding where he was) the victim attempted to redirect the boat, and failing that attempted to escape the boat. In his delusional state he was attempting to escape (delusionally-perceived) danger to reach (delusionally-perceived) safety. That was a fatal act, but it was not intended to be so. The victim is reported as having attempted to flee danger, not kill himself.



> No one knows if the delusional state ( which he inflicted on himself ) was the determining factor in following through with his suicide. I would more than likely believe by his actions he planned to do that as long. Why else would he stop taking the medication which kept those thoughts at bay in his head.


Again, mistaken--nothing in any of the reports of this event suggest that the victim wanted to harm or kill himself. The reports are of hallucinations and fear. He did not "inflict" the delirium on himself. He was medically ill.


----------



## tempest

chef2sail said:


> Mark...respectfully disagree
> Delusional....that's the thread conlusion but no fact in evidence to
> Support that. Also that it was exacerbated by the drugs given by
> The captain.....again. assertion not fact. Facts are different Han
> Conclusions from the evidence you and others interpret
> You, nor anyone else here can make ANY factual case on it not being
> Suicide. The known facts actually support that's just what happened
> 1- man knows Himself not qualified by goes on offshore passage
> 2- man stop taking drugs which keep him calm...notice he makes
> That choice himself while under their influence. Well before
> The Captain gave him anything. Quite possible his symptoms
> At sea wrrecause by withdrawal of his drugs. In fact the
> Fact he got worse and worse supports this. He chose to
> do this.
> 3. No one knows if the delusionall state ( which he inflicted on
> Himself ) was the determining factor in following through
> With his suicide. I would more than likely believe by his
> actions he planned to do that as long. Why else would he
> Stop taking the medication which kept those thoughts
> at bay in his head.
> 
> Once you look at this as a suicide, it mitigates the Captains criminal negligence.
> 
> I find the fact that the Captain did not go back to rescue the body, indefenseable nor call bout it.


Chef,

I don't think his own lawyer is going to argue that the man intentionally committed suicide.

There are statements from the crew that he was delusional, both hearing things and seeing things that were not there. In addition, there are statements that he imagined that they were trying to steal his fathers money, that it wasn't the same boat he boarded and they weren't the same crew he joined. He saw a doorway in the sky that would get him off the boat. There's no information , other than your hypothesis, that he boarded this boat with the express intent of committing suicide and to that end he intentionally stopped taking his Meds.

The more likely scenario would be that his vomiting prevented his Medications from being absorbed in to his system. Or, that he was sick and disoriented and forgot to take them.


----------



## OldEagle

> If he could have been treated, he would have returned to his happy life and loving family.


This is exactly right, and I've seen this occur many times. After the first few times, it sobers you up about trusting your first impressions.


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## chef2sail

tempest said:


> Chef,
> 
> I don't think his own lawyer is going to argue that the man intentionally committed suicide.
> 
> There are statements from the crew that he was delusional, both hearing things and seeing things that were not there. In addition, there are statements that he imagined that they were trying to steal his fathers money, that it wasn't the same boat he boarded and they weren't the same crew he joined. He saw a doorway in the sky that would get him off the boat. There's no information , other than your hypothesis, that he boarded this boat with the express intent of committing suicide and to that end he intentionally stopped taking his Meds.
> 
> The more likely scenario would be that his vomiting prevented his Medications from being absorbed in to his system. Or, that he was sick and disoriented and forgot to take them.


I believe pontious father stated he was taking medicine for depression. So he was depressed. Possible without the medication this depression manifests itself in delusions, withdrawals, sickness mimicking seasickness.
Even possibly suicidal thoughts.

I do agree that if the Captain understood this and that he had stopped the medication that the prudent thing was to take him back ashore. I don't absolve the Captain of poor Judgement here.

As far as going back to shore. How long would that have taken....anyone know? What is the timeline here? Days? Hours? When did he stop taking the antidepressive? Before he got onboard, days/ week before he got onboard? After he was onboard. That might give a clue as to Potious state of mind before he set foot aboard. Why didn't he tell the Capt he stopped taking his as notice depression medicine, whether before or after boarding? What about his agressive assault? All because of hallucinatiins, Any previous history of physical confrontations? Any reports of Pontious life besides the normal stuff. These are all relevant to piecing together a complete picture.

Maybe if the Dr who prescribed the medication was interviewed we'd find out if there was a suicidal component in his diagnosis. Maybe he heard voices and was irrAtiinal/ delusional and that's why he was medicated. Can you blame the Capt for him not taking his meds?

Remember I don't absolve the Captain completely. Just think there I as more to meet the eye here.


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## Minnewaska

mstern said:


> .....this statute is so far out of whack with every other criminal statute I've ever dealt with that I do not believe it should still be on the books in its present form.......


I hear your point and an amendment to this law may happen. Nevertheless, I disagree with the presumption that law at sea should be consistent with common law, any more than civil law should be common with criminal law.

In particular, the risks at sea are demonstrably greater than on land, the potentially harmed are less capable of making their own decisions and are less informed of risk. The Captain is deemed responsible to make all of these assessments. Therefore, they are held to a higher standard of care than ashore.

Whether this statute properly distinguishes the two is debatable, but I expect to see a difference continue.


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## tempest

Chef, 

I saw nothing in any of the reports that says he purposely stopped taking his meds. What I did see, was that that captain "reportedly" asked him if he was taking any " drugs" . The man assumed the captain was referring to " illegal" drugs and answered no. It was later discovered that he was prescribed several heart medications, and an antibiotic. He was also encouraged to take a patch, 
which he did. Accepting the patch, would seem to indicate, someone who was trying to not be sick.


----------



## Sailormon6

Minnewaska said:


> This is where you are overstating your case. The statue calls for a fine and/or up to 10 years, for the explicit reason that the individual circumstances would dictate variable sentences. You're trying to suggest that any act of negligence would be treated with the same 10 year sentence and, by definition in the law, that's not correct.


 I'm sure your experiences in court are different from mine, but I've seen rigid, unforgiving judges deliver sentences to people that were so draconian that the judge's own bailiff and even the prosecutor had to speak to him privately, in chambers, and urge him to lighten up on the sentence, because it was wholly uncalled for. I've had to do it myself. Judges are human and make sentencing mistakes, and sometimes it helps them to hear a different perspective from a person who they trust and who's only interest is in a just result.

Laws should be written so that they limit the amount of harm a judge can do by a misjudgment or narrow mind. In traffic law, the maximum penalty for a traffic death based on ordinary negligence, such as running a red light or stop sign, is generally 6 months incarceration, fine and license suspension.

This law is based upon ordinary negligence. A maximum of six months is an appropriate maximum penalty for an offense based on ordinary negligence. Ordinary negligence is roughly akin to a "minor oversight." No law should be written in a way that gives a judge the discretion to incarcerate a person for 10 years for a minor oversight.

The facts alleged in this case seem to me to be more appropriate, if proven, for a more serious offense based, not on ordinary negligence, but on "gross negligence" or "willful and wanton" negligence. A sentence for some reasonable period of years would be appropriate in such a case. You'd have to ask the prosecutor why he didn't charge the defendant under a more serious offense. My guess is that he thought a charge under this provision would be easier for him.



> I would not worry about going to jail for slightly rusted lifelines. I would worry about it for failing to attempt to recover a crew member that jumped overboard, for any reason.


 This law is so poorly written that you could go to jail for slightly rusted lifelines, or perhaps a lifeline that comes unscrewed, or for negligently tying a knot that failed at a critical moment. Moreover, it's written so vaguely that it leaves you to guess at what it considers a criminal act and it allows a judge the discretion to impose a sentence that is way out of proportion to the nature of the crime. That's a bad law. Bad laws create injustices. Don't take my word for it. Re-read mstern's post #530, above. He clearly knows what he's talking about.



> We should defend our own positions, but please don't degrade the discussion by telling me what I should think.


 Sorry. I didn't realize you were so sensitive as to be offended by a common figure of speech. Knowing that now, I'll avoid that figure of speech in the future.

While you continue debating whether this fool committed a violation of this inaptly contrived law, I think I'll do something useful, and bring this law to the attention of Boat US and US Sailing, and urge them to take it up as a project to persuade Congress to re-write it, so the courts won't have to bother invalidating it. The courts already have enough to keep them busy, and I'd hate to see any of you guys have to fight it out in the courts at your expense.


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## Minnewaska

I don't expect this law will change on the basis of reducing a judges discretion, that's an entirely different debate.

However, if one wanted to argue that it is cruel and unusual to allow up to 10 years for simple negligence, they might have a point in some eyes. It also contemplates inattention to duties, which I think is the trigger here, not negligence.

I still don't see the statute as that dangerous, but I see the argument for it to be improved. We'll see if, based solely on what we know today, whether this Captain gets 10 years. I've said from the early posts in this thread, that I doubt he will. The facts could get worse and he does, they could get better and he walks.


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## Sailormon6

Minnewaska said:


> I don't expect this law will change on the basis of reducing a judges discretion, that's an entirely different debate.


 A judge's discretion is circumscribed by the law. Perhaps the most fundamental principle of criminal law is found in the Latin expression "nulla poena sine lege (Latin for "no penalty without a law") That principle requires that one cannot be punished for doing something that is not prohibited by law, and for which no penalty is prescribed." In short, the judge's discretion is limited by the law as it is written and enacted by the legislature. The judge's discretion will change in any way the legislature determines.



> However, if one wanted to argue that it is cruel and unusual to allow up to 10 years for simple negligence, they might have a point in some eyes. It also contemplates inattention to duties, which I think is the trigger here, not negligence.


At this point, whether 10 years is excessive has nothing to do with the cruel and unusual punishment clause. Congress can specify that the penalty is 6 months, or 2 years, or 10 years. In the first instance, it's up to Congress. If Congress makes it 10 years, and a person is sentenced to 10 years, then he can raise the cruel and unusual punishment argument if he thinks it will help him.

My argument isn't that 10 years is cruel and unusual. My argument is that it's monumentally stupid to allow a judge the discretion to incarcerate a person for 10 years for what amounts to a poorly tied knot. Sometimes it makes me think that the lawyer who wrote such a poorly written law ought to be incarcerated for 10 years for a negligently written law. Maybe that would make him appreciate the injustice of what he has done. Usually, if you persuade the legislature that a law is flawed, they'll be willing to correct it.



> I still don't see the statute as that dangerous...


 Every bad law is dangerous. It lies there dormant until an uninformed, unscrupulous or weak willed prosecutor uses it. Suppose a son of a prominent political person dies in an accident on a boat and his parent demands prosecution, and storms the prosecutor's office with a mob, demanding a maximum penalty. Do you think the prominent political person is likely to get his way? How confident can you be that the prosecutor won't put you through the meat grinder to relieve himself of the pressure? Laws should be written well to preclude that as much as possible.


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## hpeer

It would be great if someone had a text copy of the USCG report so that we could post it and folks could actually read it. 

I say this because I see repeated statements that contradict that report. 

I’m not going to go a mind retype it, even if I could find it but IIRC he had a drug organizer with him, partially broken. Some days pills were used, presumably he took them. The US G identified the pills and there were blood pressure meds, heart meds, meds for a skin condition, and meds (2 I think) for depression. It was really quite a mix of pills for a 50 something guy. 

At this point I’m trying to make no point other than we should really make an effort to all use the best data available. 

So if someone can find that USCG report in a text file please post it or a link.


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## MarkofSeaLife

hpeer said:


> It would be great if someone had a text copy of the USCG report so that we could post it and folks could actually read it.


Yep, I'd love it in text. 
The language used by the officer is bizarre. Truly bizarre. I would like the text copy at least just to put all that weird language into play. 
I wish the forum lawyers would stop pontificating laws and look at it.


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## outbound

Chief I was attacked in a staircase by a crazed junkie and knifed in the thigh. Second time by a man screaming “we’re going to die” and swinging his arms about wildly in a 35’ Hinckley pilot. No where to go. No where to hide. Third time I could run away but it was hard after being shot in the ass when a basketball game went south. You don’t know me. You are so far off base. The assumptions you’ve made are ludicrous and have no basis in fact nor are they germaine to this discussion. 

Furthermore, once again this captains malfeasance occurred BEFORE the crew attacked him. BEFORE the crew suicided. 

The captain didn’t vet crew adequately.
The captain didn’t address crew’s seasickness adequately.
The captain didn’t monitor crew’s response to meds adequately.
One can reasonably infer captain didn’t establish a mutually satisfactory relationship with crew adequately.

THEN

Crew acted inappropriately and in a hostile manner. 

THEN
captain didn’t intervene adequately nor seek outside assistance.


THEN
Crew jumped off the boat.


THEN
Although captain had no risk to himself nor other crew with a modicum of forethought he again didn’t act in an adequate fashion.


I still am waiting for some line of thought or an insight that supports the captains behavior BEFORE the crew attacking anyone or suiciding. 

We are working on second hand, incomplete information and agree we may have it all wrong. Still as presented the captains behavior sure sounds subpar. It even gives credence to the thought the crew was driven to suicide. 
Totally agree from possibly inaccurate, incomplete information crew had no business signing on for this cruise but that doesn’t aleve captain of his responsibilities to vet appropriately and work with and look out for those he selects. 

This bird is dead.
He is deceased.
He is no more.


No he’s just sleeping.
See he just moved.


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## Bleemus

After being in Florida for a few weeks it has opened my eyes to how serious a problem mental health is in this country. We don't know all the facts and the courts will decide.


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## OldEagle

Here's the link to the USCG report dated 22 Nov 2015 by LT Hopper:
https://www.penbaypilot.com/article/camden-captain-accused-seaman-s-manslaughter-discusses-incident-coast-guard-releases-/111009

The copied report is embedded as a photo gallery in the newspaper report, and each of the 4 pages can be easily read.

Reading the report a few points stand out:
- it aligns pretty well with the news reports we've all seen
- key points that we have focused on are identified in this report:
(1) victim had evidence of a significant medical problem when he boarded
(2) he got sick early
(3) he got worse and started hallucinating
(4) in a hallucinatory, delusional state he attacked the captain, then jumped overboard
(5) captain made no effort to retrieve him

Three other points stand out:
(1) his original problem at boarding (leg swelling) was apparently due to poorly controlled heart failure
(2) his hallucinations were clearly accompanied by severe agitation--over a period of about 2 days before the final crisis. The picture of hallucinations, delusions and agitation is a typical picture of delirium--which is a derangement in mental functioning due to a medical problem
(3) the fear of the crew after the attack on the captain is emphasized--and I think, very understandable.

However, for the reasons that have been previously stated by several of us, the victim was no longer a threat once overboard, and therefore should not have been abandoned


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## outbound

The more information that comes out the more you realize how much you don’t know. What’s been exposed is not logical. To me this suggests there’s much we don’t know as the story doesn’t hold together.
First, a man in congestive heart failure is exercise intolerant. Decreased cardiac output is the hallmark of this illness and his swollen feet is consistent with marginal control of this illness even before departure. One could reasonably suppose he would have no endurance to fight for any prolonged length of time. Perhaps a brief outburst but that’s it. A man with CHF who’s not taking his meds for several days would likely be in further decompensated CHF and even more debilitated. It doesn’t make much sense he would present much of a sustained threat to anyone if not armed. Neither does it make much sense a captain would let such a man on his boat except as live lumber or depend on him to be active crew. Why was he let on the boat in the first place?
Why was he hallucinating? Cardiac meds nor their withdrawal are not a common cause of delerium or hallucinations. Delerium can be seen in end stage CHF but by that time the patient is bedridden and no physical threat.there is the possibility of toxicities with excessive dosing but we’re told he wasn’t taking them and withdrawal seems an unlikely cause for violence. Repetitive vomiting with lack of p.o. intake resulting in dehydration and/or electrolyte abnormalities can cause delerium but again you have a severely weakened person by that point.
Some anti seasick drugs can cause delerium and hallucinations. Physical strength could be unaffected so this remains a possible leading culprit But we don’t know what was taken and how much. As a side note - it’s worthwhile to monitor this(what, how much,how often) and cognition and pupillary size and food/fluid intake in anyone actively seasick. 
However, it does lend support to the supposition the crew was too debilitated to keep his head above water once he went over the rail.
The whole thing is fishy. Too the point that without all the information no definite formulation can be made and no just assignment of the presence of negligence or degree of negligence can be made. I am starting to wonder about a back story that’s yet to be disclosed causing the prosecution to act.


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## SeaStar58

chef2sail said:


> As far as going back to shore. How long would that have taken....anyone know? What is the timeline here? Days? Hours? ...
> 
> Remember I don't absolve the Captain completely. Just think there I as more to meet the eye here.


The first indicator that he was in trouble was before he got on the boat so it would not have taken any time to return him to shore since he was still on the dock. The second indicator was before they got past the breakwater while leaving port so a very extremely short time was involved here and the third came just after they started to get out in open water just offshore so again just an hour or so. It took three days from there to escalate to jumping over the side. So its not that three days out from land he suddenly became ill but this all started to become obvious before he even boarded the boat or they got out of site of land.


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## OldEagle

Outbound--you put up a long & thoughtful post in #549; I'm not going to quote any of it because there is no single snippet that would serve to encapsulate it. I don't disagree with any of it--except that I think you're overthinking it.

You're approaching this as a physician--symptoms & objective observations (findings) can be organized into a pattern (syndrome) which can have multiple causes (differential diagnosis) which can be sorted out by testing to give a correct diagnosis which can be treated. If you had this victim as a patient in an ER, you'd assess him of all the things you discussed plus some others that could show up this way that didn't emerge in the limited set of facts we've been given

The captain's problem was simpler (I didn't say "easier"!). What he had to do was recognize:
(1) Sick crewman boarded 
(2) he has gotten sicker 
(3) now he's hallucinating and agitated (I have a medical emergency) 
(4) I don't know why this is happening and I can not reasonably see a way to fix it 
(5) I need help now
And then acted on that.

In fact, unless you have an unbelievably stocked boat--that's what you would have done. Your extra knowledge as a physician could only have been partially utilized in a setting where you lacked meds, supplies, equipment and trained staff to assist.


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## Sailormon6

MarkofSeaLife said:


> Yep, I'd love it in text.
> The language used by the officer is bizarre. Truly bizarre. I would like the text copy at least just to put all that weird language into play.
> I wish the forum lawyers would stop pontificating laws and look at it.


OK Mark, I read Lt. Hopper's 4 page report, and see absolutely nothing even remotely bizarre in it, except of course the behavior of Pontius. It appears to be a well written report by an experienced investigator. However, I'm beginning to wonder if some of the participants in this thread have been hallucinating, and what meds they have been taking. I wonder where they got some of the criticisms of the captain's behavior, because the criticisms certainly didn't come from Lt. Hopper's report. Hopper summarized his report by saying, "Nobody on this vessel was trained for this sort of situation and I believe they tried to handle it the best they could without comms and being so far from shore for assistance."

The essence of negligence is failing to act in the way a reasonable person would act under the same or similar circumstances. Among the "circumstances" that influenced and limited the captain's ability to cope with the situation was that, like most people he had no particular medical training or experience in diagnosing or treating medical conditions. When he met Pontius, he asked Pontius if he was taking any drugs and Pontius denied that he was, even though Pontius was, in fact, carrying and using a wide array of drugs. The facts seem to be much as I theorized early in this discussion. Pontius misled the captain about his condition, it progressively became worse, and finally Pontius exploded into a lethal rage. Like any ordinary, average, reasonable person who lacked any special medical knowledge, the captain didn't foresee that swollen feet and obesity would develop into a full-blown psychotic rage, and he was simply at a loss how to deal with it, and, without comms he was unable to get help from outsiders. If he could foresee that happening, I haven't the least doubt that he would never have let him on board.

Now, I'm sure the prosecutor interviewed all the crew members, and might know more than what is in this report, but if the information in this report is all there is, it's hard for me to imagine either a judge or jury convicting this man.

I have no doubt that, looking back, the captain sees things very differently than he saw them as they were unfolding, but he didn't have the benefit of hindsight at that time.

If the captain was a retired physician, with medical training, experience and skill, he would probably be convicted, because a person having a high degree of skill is held to a higher standard of conduct than a person lacking any special knowledge.

It appears that the prosecution intends to have an expert witness testify generally that the captain was negligent, and the defense will have an expert testify to the contrary. If the witnesses are all equally persuasive, that will leave the jury unable to determine guilt beyond a reasonable doubt.

But, I'm not predicting the outcome. I'm just analyzing the case. Anything can happen unexpectedly during the course of a trial to affect the outcome.


----------



## chef2sail

outbound said:


> The more information that comes out the more you realize how much you don't know. What's been exposed is not logical. To me this suggests there's much we don't know as the story doesn't hold together.
> First, a man in congestive heart failure is exercise intolerant. Decreased cardiac output is the hallmark of this illness and his swollen feet is consistent with marginal control of this illness even before departure. One could reasonably suppose he would have no endurance to fight for any prolonged length of time. Perhaps a brief outburst but that's it. A man with CHF who's not taking his meds for several days would likely be in further decompensated CHF and even more debilitated. It doesn't make much sense he would present much of a sustained threat to anyone if not armed. Neither does it make much sense a captain would let such a man on his boat except as live lumber or depend on him to be active crew. Why was he let on the boat in the first place?
> Why was he hallucinating? Cardiac meds nor their withdrawal are not a common cause of delerium or hallucinations. Delerium can be seen in end stage CHF but by that time the patient is bedridden and no physical threat.there is the possibility of toxicities with excessive dosing but we're told he wasn't taking them and withdrawal seems an unlikely cause for violence. Repetitive vomiting with lack of p.o. intake resulting in dehydration and/or electrolyte abnormalities can cause delerium but again you have a severely weakened person by that point.
> Some anti seasick drugs can cause delerium and hallucinations. Physical strength could be unaffected so this remains a possible leading culprit But we don't know what was taken and how much. As a side note - it's worthwhile to monitor this(what, how much,how often) and cognition and pupillary size and food/fluid intake in anyone actively seasick.
> However, it does lend support to the supposition the crew was too debilitated to keep his head above water once he went over the rail.
> The whole thing is fishy. Too the point that without all the information no definite formulation can be made and no just assignment of the presence of negligence or degree of negligence can be made. I am starting to wonder about a back story that's yet to be disclosed causing the prosecution to act.


Stating to wonder about a back story now.....after you have made all these assumptions that may not pan out.....fact is from the very beginning there were many inconsistencies. You just failed to recognize that and take into account there was more than met the eye.

Many of the rest of us could see that from the beginning , and proffered we maybe should wait ok t till all the facts were aired before pontificating about the judgement. I specifically remember JeffH post to that end.

To me this was telling......Why did it take YEARS to charge the captain? And..The statute he is charged under is weak, general and old and n ok t really applied.

I will wait for the jury to Sort this out .

I have seen that you thoroughly vet anyone signing on as crew. One of your major points is that Captain Smith missed seeing indications at the dock that this person was unfit . You of course would have caught all of these. Swollen feet, the lies bout not taking medication etc. How did you ever get yourself in the predicament on the Hinckley? Didn't you foresee that coming?

Not everyone is as skilled as you perhaps in reading the signs of rejecting a crew. Tell us your procedure, the questions you ask, so I/ we can excercise better decision making before we sign on crew or become crew on a delivery. Do you do criminal background checks for instance? Do they all sign releases? Do you ask about medical conditionitions as well so drugs they take? How did ok you insure their truthfulness?


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## MarkofSeaLife

Sailormon6 said:


> without comms he was unable to get help from outsiders.


Thanks for finding it, reading and your opinion.

He did have comms. An SSB radio used 32 hours later.

An EPIRB never used.

A VHF which was used on the night. As he would have known, uselessly 300+ nautical miles off the coast.

Yes, I agree with much of what you say. 
Some in this thread say the negligence is before the jump. I contend it's after the jump and its more than negligence but a wilful disregard for life resulting in death.

When I get to the big computer I'll get the words and phrases in the report that I think taint it 

BTW, there is a reason why a captain would take a disabled crew on board 'at any cost'.... If the boat didn't have autopilot. 
If 3 have to hand steer 10 days that's 80 hours at the wheel. If it's 4 crew it's 60 hours. 
4 crew is 2 hours on, 6 off. Quite easy. 
3 crew is 2 hours on, 4 off. Damn hard after a few days.
With swollen legs the captain may say "he can just sit there and steer."...


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## outbound

Chief what I do is pretty standard. For 35 years I’ve seen what my friends and colleagues do and do just about the same. Most of my friends have no medical background and this business of my possibly having greater insight is heart warming but I think misplaced.

Call for candidates-OPOand other agencies, friends, my own crew list, SDR etc.
Vet resumes 
After weeding resumes call likely candidates.
Weed again 
Call references 
Weed again 
Call short list candidates. Depending on above ask for interview/short sail/ further background information/additional references etc.

My standard questions include 
Sailing experience 
Formal training if any
Mechanical,electrical, communication, weather, navigation, electronic or computer skills 
Work history 
Some sense of educational level and intelligence 
Past medical history and current medical history ,med list, vital statistics, age, level of fitness , habits (alcohol/tobacco/drugs) and how prone to seasickness 
Allergies both food and drug
Food preferences 
What they will bring to the boat(comm/nav/safety/harness/tether etc.)
Allowable time window and constraints 

All this is pretty standard stuff. Run through a lot of crew. Due to weather windows timing out crew availability ran through one set (RI to VA) a second (VA to NC) and a third (NC to Antigua) just this year getting down to the islands. The good ones tend to buy their own boat and go cruising themselves or be in high demand or having ticked off the box on their bucket list are no longer available. Still, repeats, referrals from friends and pros needing days at sea tend to be the best. 
Inspite of due diligence have been successfully lied to resulting in true winners. Most of these were apparent upon arrival so thrown off the boat then. Give crew at least a day to settle in, be educated to the boat, go through drills etc. Have thrown a few off then. By thrown I mean I take them aside and point out to them how dangerous it is for them to do the trip. On only one occasion did I have to be insistent. All the rest of times the rejected crew realized they weren’t suitable and expressed thanks that this was pointed out to them.

I continue to suspect this captain didn’t do his due diligence. But totally agree this is a suspicion not based on demonstrated facts. I’m a fat old man but with decent skills and fitness. I take other fat old men on passage. I usually get them to do a bit of labor and a task requiring some balance, time on the nav and sailing equipment. In short before we leave I want a sense of how each crew will function on passage and their personality. Passage can be great fun or miserable. My life is on the line as well. Think any decent captain gets to this place in their own idiosyncratic fashion before leaving.


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## Sailormon6

This reminds me of the only instance in which I ever had a similar situation. He was on some mood-controlling meds, and he didn't take his meds (I never learned what they were). He went absolutely bat-**** crazy, saying things that made no sense. He was raging and, as I recall he was imagining things. I was immediately concerned that he might jump off the boat. I knew him before and have been with him since, and when on his meds there's not a hint of any of that, and he's a great guy and a responsible and loving family man. When he boarded my boat he behaved perfectly normally. This came on about an hour after we left the dock. I got him to settle down and singlehanded the boat back to the marina.

Pontius was on some mood-altering drugs. He lived with his parents, probably because he had difficulty coping on his own, without some supervision. The captain didn't know any of that. Because he was seasick, he couldn't keep his meds down. That would certainly account for his behavior. If that was the cause of his behavior, then that means his obesity and his swollen feet had nothing to do with it. It was simply a matter that he was seasick, and he couldn't get his meds into his system to regulate his moods. He lied to the captain when he asked if Pontius was taking any drugs. The Captain couldn't have known that would be a consequence of Pontius' seasickness. He thought Pontius, who he knew to be an experienced sailor, would get over it after a couple days, so he sailed on, without a clue of what was about to happen.

When something like that happens, and you have no prior experience dealing with it, you would do the right thing if you knew what was the right thing to do. You consider alternatives, but just can't decide on one, so you keep going, hoping the problem will resolve itself. 

You don't punish a person because he was overwhelmed by circumstances that he was unprepared to cope with, especially when crucial information was withheld from him.


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## outbound

Mark you make a strong case for not being dependent on hand steering. Either carrying another drive, rudder angle indicator or what other bits you need to have a bulletproof AP or belt and suspenders with a vane and AP.
Would note APs of recent vintage are pretty bulletproof out the box. Would also note in calm seas and balanced sails you can usually steer with a toe so during the day 2 hours seems a pretty short watch. 
Lastly would wonder about going to sea without a functioning AP or vane in this day and age.

Uu


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## outbound

S that’s the best possible justification for the captains actions in the whole 556 posts.


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## john61ct

Not sure which "justification" you mean. As in excuse?

To me the "vetting crew" post, gives an excellent outline of what is expected of Reasonable skippers.

Those more careless risk being charged under the law, based on **simple negligence**, if their failures contribute to causing a death.

Requiring AP is a bridge too far.


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## Sailormon6

MarkofSeaLife said:


> Thanks for finding it, reading and your opinion.
> 
> He did have comms. An SSB radio used 32 hours later.


Yes, but the CG report says he tried to contact someone on the SSB at the time, but got no response. On page 3 of the report it says he tried both the VHF and SSB at the time of the MOB, and got only static. Read it again.

Where are these claims coming from that he didn't try to get help via radio? Is there a contrary report, or is it a figment of someone's imagination?


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## Minnewaska

outbound said:


> .....The whole thing is fishy. Too the point that without all the information no definite formulation can be made and no just assignment of the presence of negligence or degree of negligence can be made. I am starting to wonder about a back story that's yet to be disclosed causing the prosecution to act.


While you and I would both admit this to be speculative, it does seem possible. The summary investigation, which solely recounts crew interviews, just doesn't seem to add up (ie instant assessment of death, comm inop, not turning around, yet hailing on VHF. What's the hail for, if they maintain he was dead and unrecoverable). That's not enough to convict, but it would certainly be enough for a prosecutor to dig deeper. That digging factually lead them to pursue an indictment.

For the greater audience, in the end, this has never been about whether he's guilty of a particular crime. I believe we've all excessively focused on the law. This analysis is, at the very least, what is expected of us to avoid having to sit under house arrest with an ankle bracelet. That answer is abundantly clear. Be more careful of who you take on as crew and insure you either arrive with them or make every effort to retrieve them.


----------



## outbound

Didn’t mean to require an AP. In fact against the government requiring anything. My only sentiment is people should be responsible for the consequences of their decisions. That should be enough to incentivize people to appropriately prep their boats and go to sea with decent crew. What decisions they make is on them. I don’t see where I stipulated the need for any requirements for recreational boats.
Have friends who single. Have friends with no AP just ancient Monitors. Still they make safe passages. At this point I would think twice about doing that myself. Vanes don’t work if you’re under power. Boat doesn’t sail if you’re hurt. Don’t think anyone but the person/people on the boat can decide what their comfortable with. I do think,when you have a bunch of idiots like the father/son team who where repetitive bailed out causing tax dollars to be wasted it’s ok to intervene both for their safety and to prevent further wasteful expenditures. But beyond situations like that believe people should be left to their own devices.


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## tempest

Not much Vetting took place. If you meet each other for the 1st time in your life @ 11 p.m. and you set sail @ 9 a.m. the next morning, how much can you really learn. 
I wouldn't get in a car and go for milk and bread with someone I didn't know, let alone go to sea. 

Chef, aren't you "assuming" that the guy lied about taking drugs? "assuming" that he intentionally took his own life? 

There could be a very simple explanation for the Flyby conversation regarding the drugs. He could have assumed the captain was asking about "illegal" drugs. ( which is what he was reported to explain) I might answer the same way if someone asked me if I took drugs. Words do matter. If someone asked are you taking any " medications" for example, that may have elicited a different answer. 
Sure, the guy could have been lying or rather not forthcoming, to cover up his illnesses in order to get a berth, but we'll never know now. 

Sure, there's back stories to everything. I wonder, how long the guy was taking some of those medications, particularly the antidepressants, before he arrived. Were they newly prescribed? With not a sufficient time period to evaluate any interactions or side effects? Why were they needed? 

I also, wonder why a licensed captain who makes his living from his boat and license would even contemplate allowing marijuana on their vessel? AFAIK your vessel can be seized for mere possession, and you could lose your license. 

The Captain is lucky he didn't get caught in N.J. with a firearm onboard, he'd never see the light of day, that's how crazy our laws are. 


The Trial starts tomorrow, I guess we'll all find out soon enough what the missing pieces are. Maybe the Judge will just order he be whacked over the head twice with a winch handle and sent on his way.


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## chef2sail

outbound said:


> Chief what I do is pretty standard. For 35 years I've seen what my friends and colleagues do and do just about the same. Most of my friends have no medical background and this business of my possibly having greater insight is heart warming but I think misplaced.
> 
> Call for candidates-OPOand other agencies, friends, my own crew list, SDR etc.
> Vet resumes
> After weeding resumes call likely candidates.
> Weed again
> Call references
> Weed again
> Call short list candidates. Depending on above ask for interview/short sail/ further background information/additional references etc.
> 
> My standard questions include
> Sailing experience
> Formal training if any
> Mechanical,electrical, communication, weather, navigation, electronic or computer skills
> Work history
> Some sense of educational level and intelligence
> Past medical history and current medical history ,med list, vital statistics, age, level of fitness , habits (alcohol/tobacco/drugs) and how prone to seasickness
> Allergies both food and drug
> Food preferences
> What they will bring to the boat(comm/nav/safety/harness/tether etc.)
> Allowable time window and constraints
> 
> All this is pretty standard stuff. Run through a lot of crew. Due to weather windows timing out crew availability ran through one set (RI to VA) a second (VA to NC) and a third (NC to Antigua) just this year getting down to the islands. The good ones tend to buy their own boat and go cruising themselves or be in high demand or having ticked off the box on their bucket list are no longer available. Still, repeats, referrals from friends and pros needing days at sea tend to be the best.
> Inspite of due diligence have been successfully lied to resulting in true winners. Most of these were apparent upon arrival so thrown off the boat then. Give crew at least a day to settle in, be educated to the boat, go through drills etc. Have thrown a few off then. By thrown I mean I take them aside and point out to them how dangerous it is for them to do the trip. On only one occasion did I have to be insistent. All the rest of times the rejected crew realized they weren't suitable and expressed thanks that this was pointed out to them.
> 
> I continue to suspect this captain didn't do his due diligence. But totally agree this is a suspicion not based on demonstrated facts. I'm a fat old man but with decent skills and fitness. I take other fat old men on passage. I usually get them to do a bit of labor and a task requiring some balance, time on the nav and sailing equipment. In short before we leave I want a sense of how each crew will function on passage and their personality. Passage can be great fun or miserable. My life is on the line as well. Think any decent captain gets to this place in their own idiosyncratic fashion before leaving.


Sounds good and standard to what I've been asked.
Curious as to why you don't do a criminal background check?


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## john61ct

tempest said:


> I also, wonder why a licensed captain who makes his living from his boat and license would even contemplate allowing marijuana on their vessel?


A pretty high percentage of all professions are regular pot smokers these days.

They usually are aware of and accept the risks.


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## Sailormon6

Yeah, never mind the facts and the law. Let's vilify this guy with a fictional narrative. 

I certainly don't fault anyone for meticulously vetting crew, but this captain satisfied himself that this person, with his experience and skills, would contribute to the sailing of the boat. He might also have been misled, probably unintentionally, by the crew who Pontius was replacing. She couldn't sail with him all the way to the islands, so she lined up Pontius to replace her, and likely assured the Captain that Pontius was skilled, experienced crew, which was apparently true, but she probably didn't know about his mood altering meds. Ordinarily, the best information would come from a person who knows and has sailed with him.

The captain was misled by Pontius, who lied about his meds, and also, perhaps unintentionally, by the woman who assured him that Pontius was a sufficiently skilled, experienced sailor to do the job. 

Some of you take on elderly crew with reduced physical abilities, and you use them within the scope of their abilities. If Pontius had swollen feet, he could steer while sitting. He taught sailing. His seamanship skills would be useful. 

Hell, I'm old, and when I crew on a different boat I usually get plunked on the windward rail at first. If I want to move on to more involvement with the sailing of the boat I have to demonstrate that I can perform at least as well as the guy who is currently working in the cockpit. An old guy with tons of experience, seamanship skills and knowledge is worth at least as much as one young, heavily muscled crew who lacks all that. I don't have to be told what to do and how to do it, like some younger guys. People with limited physical abilities can still be competent, useful crew. You use them within their limitations.


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## john61ct

But doing so will increase the chances your duty of care will be required to override your self interest.


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## tempest

john61ct said:


> A pretty high percentage of all professions are regular pot smokers these days.
> 
> They usually are aware of and accept the risks.


Yeah, I know some of them too. I guess I'm just a pretty stodgy old guy when it comes to that. I don't care what you do on land. but it's not worth the risk to me to have it on my boat.


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## Tartan33#33

john61ct said:


> A pretty high percentage of all professions are regular pot smokers these days.
> 
> They usually are aware of and accept the risks.


For the record, if you have a license you need to have some type of drug testing protocol. I am part of a drug testing consortium.

I would be curious how the owner, who had an OUPV, com0lied with this requirement. As I posted in CF, really confused why the USCG did not require a drug test after taking his report.


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## Minnewaska

john61ct said:


> A pretty high percentage of all professions are regular pot smokers these days.
> 
> They usually are aware of and accept the risks.


Not sure what you mean by high percentage. It varies greatly by both age and profession. The highest adoption rate I've seen is only around 30% and that was for males under 30. I know 50 somethings that are returning to the game, but they are still single digits.

A fascinating aside that I hope doesn't start a pot/alcohol drift, is that men out-consume women with both pot and alcohol.

Bottom line to this thread, however, is the character aspect. When the prosecutor was deciding whether their recount of the incident made sense, I doubt having illegal substances aboard lent itself to their credibility. Another take away for the rest of us.


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## outbound

View some of this as not congruent to my reality.
No one is getting on my boat with any illicit drugs. Period. End of discussion. Even their alcohol goes into the bottom line of the lazerrette or the drinks locker. The boat is dry on passage. Any exceptions are at my discretion. That’s also an absolute.
Beyond possibly needing people to be fully functional for safety reasons there’s no way I’m going to lose my boat over such egocentric crap.
You take a crew. That’s a group of people. Maybe a newbie but than the others are passage proven. Maybe some old but also some young. Age isn’t the full determination of “old”. 
People go down. Seasick,ill,hurt, who knows but you plan to always have enough functional people to be able to run the boat. I always want at least one go to guy if I’m non functional. So when looking at a passage and crew you look at the crew as a group not just as individuals. 
I’ll take two and myself if the others are solid. I’ll take three and myself if one’s a newbie or I have any concerns. Realistically the modern voyaging boat can be run by one unless things break or weather is extreme. Three is plenty but redundancy is a good thing. 
Again think this is pretty standard operating procedure.


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## Sailormon6

An experienced prosecutor would consider the mere presence of marijuana as irrelevant. It would only become relevant if there was proof that it was being used by someone, and if that use played an active part in the alleged crime that transpired.

A smart defense lawyer would file a motion in limine in advance of the trial, asking the court to rule the marijuana as irrelevant, and asking the court to prohibit the prosecutor from even mentioning the marijuana in the presence of the jury. That would prevent the prosecutor from prejudicing the jury by mentioning marijuana, knowing it was irrelevant.


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## hpeer

> The whole thing is fishy. Too the point that without all the information no definite formulation can be made and no just assignment of the presence of negligence or degree of negligence can be made. I am starting to wonder about a back story that's yet to be disclosed causing the prosecution to act.


I tend to agree. Pontius was recommended to the Capt. by the leaving crewnwho was a long time aquatiance. It's not like he picked him off or Craig's List. If the guy was in congestive heat failure why would he be recommended for the trip?

I won't go through with all the speculative things we don't know. We can all come up with this or that scenario to blame or exonerate. My sense is the family was going to press a civil case but it had difficulties. Their Lawyer came across this statute and then pressed the Prosecutor to act. But who knows.

I think it's a sad case where two folks!made bad decisions which had even worse results. My personality is to not ascribe malice to either. Likewise I suspect each thought he was acting in the best possible manner. And yet this tradgedy happenned.

Unless there is some startling new revelation I still see no benefit to this prosecution beyond the fact it spawned some health discussion.


----------



## hpeer

MarkofSeaLife said:


> Yep, I'd love it in text.
> The language used by the officer is bizarre. Truly bizarre. I would like the text copy at least just to put all that weird language into play.
> I wish the forum lawyers would stop pontificating laws and look at it.


Im pretty sure our couple of lawyers are reading it closer than most of us. The errors I see repeated are not by them.

I have the image files but I have a hard time reading them in my iPhone, very blurry. I find making something difficult to read reduces comprehension.

My first reaction to the report was similar to yours. I've changed my mind. Yes it's raw but it sure does give you a sense of the interviews and how the crew talked. I've come to appreciate the frankness.

It was probably compiled by some 26 yo kid who didn't want to be there.

It shows us something of the USCG other than the dramatic rescue swimmer stuff. They do a lot of boring stuff like boat and port inspections and bouy tender service. Perhaps the Lt. was running a patrol boat and got assigned to the task as the closest assert to take the interview. Then it goes up chain for review.

Guessing.


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## chef2sail

Surely some one who gets crew by asking about medical history would also vet them in terms of criminal behavior. I surely would not want to find out the hard way the person I had taken offshore with me had a history of assault, DUI, burglary, aggressive behavior worthy of arrest. I would be uncomfortable if they were charged with drug distribution. Surely a person wouldnt easily admit that on. questionnaire or under an interview. 

Do you interview in person so you can see their nonverbal responses? 

Some here are stating the negligence started with accepting Pontious as a crew member without proper getting. But what should that vetting include. I have asked others on here what their vetting process is. Surely a criminal background check would qualify as. part of this. 

And let's be real here. Of course no captain wants to allow illegal drugs...firearms ....or any contraband on board. But short of doing a baggage search, how do you accomplish that. Seeing as drugs imported into other countries are handled very strictly , a delivery captain should be very concerned with this. 

If there is ANY negligence associated with Captain Smith I can't see how it's before the incident. If it is many of you who take crew should rethink your own vetting process. Taking aboard a crew with previous legal issues could be used against as the you in a later lawsuit. 

The issue of negligence after the incident probably will be determined by the jury IMHO. Of course at that point the fight and agreesive behavior where all the crew feared for the their lives will be brought into play. 

Bringing back someone on board (Pontious) after surviving a harsh physical assult at their hands and Potinius turning to another crew telling her crew stating " you are next" would take a special person an wouldnt make sense. In the moment no one went through a thought process 1) he didn't see it mean it, 2) he's under influence....no they reacted. When he committed the suicidal act ,....I'm Sure they finally felt safe. 

However they Should have heaved to to collect the body, or waited till the authorities got there IMHO


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## hpeer

Yes, mistakes were made. Do they raise to the level of criminality? I’ve not seen sufficient proof of that yet, neither did the USCG.

If he is convicted then I think we all have lost some tangible freedoms. Can you imagine the vetting check list that would be required to assure you if no liability? I have only one taken crew, it did not work out well for reasons no vetting process could have discerned. 

Twice I took some guests out for a day trip, a church fund raiser. None of them were sailors and I was freightened seeing them try to make their way down the floating dock. Looking back in that in light of this law I was a very foolish person to bring older 4 nonsailors aboard. Anyone could have had a medical issue. And I would have been negligent for exposing them to undue risk and I did not do a medical history on each one first. Actually I guess I should require them to come with a Drs. Outlining their general health and listing all meds they are to take and any special concerns. Perhaps a similar note from a psychologist or psychiatrist.


----------



## tempest

Sailormon6 said:


> You don't punish a person because he was overwhelmed by circumstances that he was unprepared to cope with, especially when crucial information was withheld from him.


That was the Conclusion of the initial Coast Guard report.

Someone, along the way, for reasons unknown, decided to pick it up again and go after this guy. 
External Pressure from the family? Representatives? New information? who knows.


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## Arcb

outbound said:


> View some of this as not congruent to my reality.
> No one is getting on my boat with any illicit drugs. Period. End of discussion.


How do you accomplish this? Do you search their bags when they board?
How do they react when they find out you are going to search all their personal items?
Do you recipricate and allow them to search your bags so they are confident their skipper isnt going to be on drugs offshore?

Or is it more of a strongly worded please dont bring drugs on my boat?


----------



## RegisteredUser

tempest said:


> That was the Conclusion of the initial Coast Guard report.
> 
> Someone, along the way, for reasons unknown, decided to pick it up again and go after this guy.
> External Pressure from the family? Representatives? New information? who knows.


Revenge, greed, personal absolution...possibly influenced by others....
Could be many things.
His family did know he was not well...but did not tell the Cap


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## hpeer

A question to the lawyers present. 

What are the limits of liability to this statute, assuming for the moment the case is not thrown out for being a “non commercial” voyage?

Would I be liable for a death and prosecution under this law if:
I own a boat in charter service?
I loan my boat to someone for an afternoon?
I rent a boat in Thialand? 
If I’m simply on someone else’s boat, and I have a USCG license of any type?

Assuming in all cases that the boat has just gone through a USCG safety check (PFD, fire extinguisher, etc.) and found compliant. Assume the fatality was due to some equipment failure such as a compromised safety line or maybe a shackle lets loose or an accidental gybe.


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## mstern

hpeer said:


> A question to the lawyers present.
> 
> What are the limits of liability to this statute, assuming for the moment the case is not thrown out for being a "non commercial" voyage?
> 
> Would I be liable for a death and prosecution under this law if:
> I own a boat in charter service?
> I loan my boat to someone for an afternoon?
> I rent a boat in Thialand?
> If I'm simply on someone else's boat, and I have a USCG license of any type?
> 
> Assuming in all cases that the boat has just gone through a USCG safety check (PFD, fire extinguisher, etc.) and found compliant. Assume the fatality was due to some equipment failure such as a compromised safety line or maybe a shackle lets loose or an accidental gybe.


With the caveat that legal advice you get on the internet is often worth less than you paid for it: a case could be made that liability exists in every one of the scenarios you outline above. Some are clearly (at least to me) stronger than others, but the burden of proof needed to convict under this statute is so low that I would say that we are all potential defendants.

Back in the day, it used to be more difficult to show negligence; we expected more from ourselves and were less willing to blame others, and court decisions reflected those attitudes. This statute was written back then, and it shows. Nowadays, courts and juries are far more open to finding negligence, and that makes this statute dangerous.

Now,if you will excuse me, I have to yell at some kids to get off my lawn...


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## Sailormon6

hpeer said:


> A question to the lawyers present.
> 
> What are the limits of liability to this statute, assuming for the moment the case is not thrown out for being a "non commercial" voyage?
> 
> Would I be liable for a death and prosecution under this law if:
> I own a boat in charter service?
> I loan my boat to someone for an afternoon?
> I rent a boat in Thialand?
> If I'm simply on someone else's boat, and I have a USCG license of any type?
> 
> Assuming in all cases that the boat has just gone through a USCG safety check (PFD, fire extinguisher, etc.) and found compliant. Assume the fatality was due to some equipment failure such as a compromised safety line or maybe a shackle lets loose or an accidental gybe.


I couldn't answer those questions without more facts and research. Did I mention, I'm retired? I don't do law anymore. I just like to talk about it to the extent I'm permitted, since my ticket to practice law is on inactive status.

Wikipedia says the Seaman's Manslaughter Statute, codified at 18 U.S.C. § 1115, criminalizes misconduct or negligence that results in deaths involving vessels (ships and boats) on waters in the jurisdiction of the United States. The statute exposes three groups to criminal liability:

ship's officers, such as captains, engineers, and pilots; and
*those having responsibility for the vessel's condition, such as owners, charterers, and inspectors; and corporate management.*

That doesn't answer all your questions, but it might help.


----------



## john61ct

hpeer said:


> My personality is to not ascribe malice to either


I agree, but absence of malice is irrelevant here.

Careless lack of concern about his duty of care is all that's required, and pretty apparent, to me, given what we know.


----------



## MarkofSeaLife

Arcb said:


> How do you accomplish this? Do you search their bags when they board?


Yes! I damn well do! No DRUGS on Sea Life.

The last 2 crew I had on board for the Atlantic crossing I told them each day of the vetting process I would search their bags and all clothes before they stepped on boat. Everything! 
They absolutely knew they were goubg to have their kit searched. So I their case I didn't need, physically to do it. They would have been terrified of it if they had any. Oh, and I told them they would be doing a urine test for drugs too, and they didn't bat an eyelid.

Other point us about drugs for mental health - lithium based and seritonin inhibitors... They all (as far as I know) take a month to be one full effective and a month to go off them. So if you miss a few or vomit a few it will not make any difference.

As the trial starts tomorrow can we all keep an eye out, please, for good reports? 
A transcript would be gold but I guess there's no chance if that.

Mark :grin


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## john61ct

chef2sail said:


> Of course no captain wants to allow illegal drugs... firearms .... or any contraband on board.


Oh you naive dreamer.

Haven't you seen the threads arguing these points for dozens of pages?

Huge numbers of US "captains" consider carrying pot or guns aboard their boat just fine, some even both at the same time! Some do so for pleasure, or safety, or even as an income earner.

The vetting was not the only, maybe not even a significant part of the pre-MOB negligence.

The post-MOB negligence is more obvious but less serious, likely just corpse retrieval.


----------



## MarkofSeaLife

john61ct said:


> I agree, but absence of malice is irrelevant here.
> 
> Careless lack of concern about his duty of care is all that's required, and pretty apparent, to me, given what we know.


2 quasi legal questions:

1) and if it's found to be a wilful deistegarg?

2) how much lower standard would this captain be expected from
a) a Navy captain
b) Captain of a commercial ship? 
c) Captain Dad and Admiral Mom if Aunt Mabel was crew?

Mark


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## john61ct

hpeer said:


> I took some guests out for a day trip, a church fund raiser.


Completely irrelevant.

If problems arose, I'm sure you would have done whatever you could to help, their health would have taken priority over that day's "mission"


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## Arcb

MarkofSeaLife said:


> Yes! I damn well do! No DRUGS on Sea Life.
> difference.


I know you and O, have a lot of electronics on board your boats, but I would be surprised if there was an Ion scanner.


----------



## Sailormon6

MarkofSeaLife said:


> 2 quasi legal questions:
> 
> 1) and if it's found to be a wilful deistegarg?


Check your spelling, Mark. Google doesn't recognize the word. It asked: Did you mean: deepti garg; disha garg; distagage; descargarg?


----------



## tempest

Tartan33#33 said:


> For the record, if you have a license you need to have some type of drug testing protocol. I am part of a drug testing consortium.
> 
> I would be curious how the owner, who had an OUPV, com0lied with this requirement. As I posted in CF, really confused why the USCG did not require a drug test after taking his report.


I was a little surprised by the absence of inquiry on that topic in the initial coast guard report.

Though this was not an "inspected" vessel. I do operate one from time to time, and am required to maintain membership in a consortium. If I recall, the guidelines for " inspected" vessels "require" a test immediately following a fatality. Do you remember the Staten Island Ferry Captain, that ran away, after crashing the ferry. I think Pot can be detected in your system for up to 30 days or more in some instances.

I was also surprised, as I've mentioned before, that there were no "reported" questions re: use of life jackets, tethers etc.

I'm not implying anything one way or the other. Other than to say that I would think an official finder of fact would have asked those basic questions for the record.

Maybe they did, and just didn't include it in the report, as irrelevant.


----------



## MarkofSeaLife

john61ct said:


> The post-MOB negligence is more obvious but less serious, likely just corpse retrieval.


Likely....?

likely

likely

likely?

You wanna come on my boat and you go overboard and I keep sailing away from you and say " it's likely you don't need rescue"?

Really!?

likely

Mark


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## MarkofSeaLife

Sailormon6 said:


> Check your spelling, Mark. Google doesn't recognize the word. It asked: Did you mean: deepti garg; disha garg; distagage; descargarg?


:grin :grin

Samsung sux :wink

Wilful disregard of human life.

.


----------



## MarkofSeaLife

Arcb said:


> I know you and O, have a lot of electronics on board your boats, but I would be surprised if there was an Ion scanner.


Take them to a doctor and pay for their urine drug test. It tells you if they've smoked or snorted in the last 30 days.

Might cost you a few $$ but may save you a life sentence in a 3rd World Country.


----------



## Arcb

Jeez, I can see why you guys use volunteer crew, I dont know too many professional sailors that would agree to those kinds of terms.

But then again, I come from a country where its against the rules to randomly test even professional seaman for drugs and Marijuana is legal and sold to the public by the government, so I guess I might just have a different perspective on this item.


----------



## Minnewaska

Sailormon6 said:


> An experienced prosecutor would consider the mere presence of marijuana as irrelevant......


It's not clear what context you consider relevant.

I was not suggesting it would factor into the prosecution itself. I suggested the prosecutor would consider the fact that this Captain agreed to carry an illegal drug aboard, as a strike against his credibility and potentially spurring the investigation along to see what other abnormalities there were. While pot has become more commonplace, recreational use is still mostly illegal and consumed by a distinct minority of citizens. As best I can tell, it's fully illegal in international waters, which are subject to federal law. I just think it could have gotten their attention to poke further.

I also don't recall this fact being in the initial CG summary report, so perhaps it is evidence itself of further prodding.

At the least, I would think we can agree, it didn't help.


----------



## MarkofSeaLife

Arcb said:


> I come from a country where.... Marijuana is legal and sold to the public by the government,


 Canada marajuana is only legal on prescription. I was in Vancouver recently 18 months ago, and it wasn't possible to just Swan in and buy it... You had to be registered and under doctors orders. If it's changed, it was different when this situation occurred.

As for any captain slicing through international waters where they maybe waylaud in countries not as forgiving, like the Bahamas, Cuba, Dr etc.

Remember, some countries treat your dalliance as gallows stuff:


> Malaysian legislation provides for a mandatory death penalty for convicted drug traffickers. Individuals arrested in possession of 200 grams (seven ounces) of marijuana are presumed by law to be trafficking in drugs.


As for people not willing to have a drug test... I hope they get another boat sometime.

But, if this captain really *needed* crew then anything may have been allowable.


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## hpeer

https://www.justice.gov/usao-vi/pr/...arged-seaman-s-manslaughter-causing-death-sea

FOR IMMEDIATE RELEASE
Friday, November 2, 2018
St. John Boat Captain Arrested and Charged with Seaman's Manslaughter for Causing a Death at Sea

St. Thomas, USVI - Richard Smith, 65, of St. John, was arrested today on an indictment charging him with seaman's manslaughter, United States Attorney Gretchen C.F. Shappert announced. Smith made his initial appearance before Magistrate Judge Ruth Miller.

The indictment alleges that on or about October 25, 2015, Smith was the captain and owner of the S/V Cimarron. Through his inattention, negligence and misconduct, Smith allegedly caused the death of David Pontius. According to the indictment, Mr. Pontius was a crewmember aboard the S/V Cimarron when the 43-foot sailing vessel left North Carolina to return to St. John where Smith operates a sailing charter business. During the course of the return voyage, Mr. Pontius allegedly became disoriented, climbed over the rail of the boat, and jumped overboard. The indictment alleges that Smith failed to stop to render assistance. As a result, Mr. Pontius died.

The Seaman's Manslaughter Statute, 18 U.S.C. § 1115, holds ship officers, maritime vessel owners, and maritime corporate management criminally responsible for conduct that results in death on a vessel within the special maritime and territorial jurisdiction of the United States and within the general admiralty jurisdiction of the federal courts. Ship officers-"[e]very captain, engineer, pilot or other person employed . . . on any vessel"-are accountable for "misconduct, negligence or inattention to . . . duties" that results in a loss of life. If convicted of Seaman's Manslaughter, Smith faces a maximum sentence of ten years and a $250,000 fine.

The case is being investigated by Coast Guard Investigative Service (CGIS) Chesapeake Region, United States Coast Guard - Marine Safety Detachment (MSD) St. Thomas and prosecuted by Assistant United States Attorney Sigrid M. Tejo-Sprotte.

United States Attorney Shappert reminds the public that an indictment is merely a formal charging document and is not evidence of guilt. Every defendant is presumed innocent until and unless found guilty.

Topic(s): 
Violent Crime
Component(s): 
USAO - Virgin Islands
Updated November 2, 2018
Department of Justice Elder Justice Initiative

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## Sailormon6

Minnewaska said:


> It's not clear what context you consider relevant.
> 
> I was not suggesting it would factor into the prosecution itself. I suggested the prosecutor would consider the fact that this Captain agreed to carry an illegal drug aboard, as a strike against his credibility and potentially spurring the investigation along to see what other abnormalities there were.


Imagine that you are a prosecutor. You're sitting behind your desk looking at a police report of a homicide. Each crime requires that certain elements must be proven. As you read through the report, you're looking to see if there is evidence in the report to support each one of those essential elements. If every element isn't supported, you decline prosecution. If the report contains evidence that the accused also ran a red light or spit on a sidewalk, you ignore it, because you weren't asked to prosecute him for those offenses. Proof of those offenses doesn't help you prove the homicide, because they are irrelevant to the homicide. The homicide is the important offense, and that's the one you focus on. It's unproductive to chase vague suspicions regarding minor offenses up blind alleys.

There's a Latin term that I used in similar situations to dispose of such matters. I called it "de minimis," which means "too trivial to merit consideration."

You focus on what's important and put aside what isn't.

Consider how you (collectively, not individually) discussed this case. You don't really know how to focus narrowly on the important elements of the offense, so you discuss every minute detail and innuendo, on the chance that it might matter. I'm not criticizing you for that. You haven't been trained to do otherwise. It keeps the discussion lively, but it isn't the way any trained specialist in any field does his job. He focuses as narrowly as possible on the problem, because he has other clients/patients waiting to see him. We all have to do our jobs efficiently.

Don't change what you're doing. We've all kept this discussion interesting and productive for 60 pages and we're not done yet.


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## hpeer

john61ct said:


> Completely irrelevant.
> 
> If problems arose, I'm sure you would have done whatever you could to help, their health would have taken priority over that day's "mission"


Not at all irrelevant. If one of them died some lawyer would have been all over my case to find some indication of "negligence." Suppose I forgot to bring a cell phone or the battery died which delayed me contacting the authorities? Sure I call USCG VHF, but there was a quicker way to get to an ambulance I did not use because of a dead cell phone. I'm negligent for not having "instant communications" as has been suggested above.


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## hpeer

Sailormon6 said:


> I couldn't answer those questions without more facts and research. Did I mention, I'm retired? I don't do law anymore. I just like to talk about it to the extent I'm permitted, since my ticket to practice law is on inactive status.
> 
> Wikipedia says the Seaman's Manslaughter Statute, codified at 18 U.S.C. § 1115, criminalizes misconduct or negligence that results in deaths involving vessels (ships and boats) on waters in the jurisdiction of the United States. The statute exposes three groups to criminal liability:
> 
> ship's officers, such as captains, engineers, and pilots; and
> *those having responsibility for the vessel's condition, such as owners, charterers, and inspectors; and corporate management.*
> 
> That doesn't answer all your questions, but it might help.


Suppose I changed the question to say "COULD" I be liable, change your answer?


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## davidpm

The only useful piece of information in this thread is that now they are down one charter boat in St. John.

There must be room for another one now. 

OPPORTUNITY


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## hpeer

john61ct said:


> I agree, but absence of malice is irrelevant here.
> 
> Careless lack of concern about his duty of care is all that's required, and pretty apparent, to me, given what we know.


"Careless lack of concern" is not required, "negligence" is required.

But that's not what I was talking about. This is a damn stupid law and he is likely guilty if the law is found to have standing in no commercial cases.

I was talking about my personal assessment of the situation.


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## Arcb

MarkofSeaLife said:


> Canada marajuana is only legal on prescription. I was in Vancouver recently 18 months ago, and it wasn't possible to just Swan in and buy it... You had to be registered and under doctors orders. If it's changed, it was different when this situation occurred.
> 
> As for any captain slicing through international waters where they maybe waylaud in countries not as forgiving, like the Bahamas, Cuba, Dr etc.
> 
> Remember, some countries treat your dalliance as gallows stuff:
> 
> As for people not willing to have a drug test... I hope they get another boat sometime.
> 
> But, if this captain really *needed* crew then anything may have been allowable.


Your Intel on Canadian marijuana laws is obsolete. It's gone fully legal since your last visit. Any one can literally walk into a government run pot shop and buy weed.

But, putting that aside, I worked as a professional seafarer for 20 years. I held an unlimited tonnage, all oceans mates licence, and did pleanty of international voyages, including lots of time in US waters and I have never once been drug tested and I have never had my bags searched by a skipper.

So if the cruising community at large is searching crew bags and following the US governments lead on drug testing their volunteer crew they are doing so out of preference, not out of legal necessity.

I agree, there are lots of countries out there with sketchy drug laws, but this trip was between US and the BVI, not Malaysia. US laws would apply right up until the time you entered another countries territorial waters.


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## Sailormon6

hpeer said:


> Suppose I changed the question to say "COULD" I be liable, change your answer?


Nope, but congratulations! You're the 600th poster in this thread!


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## outbound

Only time I had my seabag searched was before a race. Captain wanted all excess weight gone. I’ve never searched anyone’s bag. But I’m pretty damn sure no illicit drugs have been on my boat.
Anyone who has run a small business, practice or done HR knows there’s a lot more possibly relevant information you can garner with 5 minutes on the net beyond a CORI printout.


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## tempest

Arcb said:


> So if the cruising community at large is searching crew bags and following the US governments lead on drug testing their crew they are doing so out of preference, not legal out of necessity.


 I'm not quite as confident as you though. It's still a Federal crime in the U.S. and if you are on Federal waters, you may have to answer to the Federal authorities.

https://www.boatingmag.com/how-legalized-marijuana-applies-to-boaters


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## outbound

Anybody concerned about having impaired people wandering around on deck or running the boat?


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## tempest

Not as long as it's the size of a living room only longer and skinnier. ;-)


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## chef2sail

outbound said:


> Only time I had my seabag searched was before a race. Captain wanted all excess weight gone. I've never searched anyone's bag. But I'm pretty damn sure no illicit drugs have been on my boat.
> Anyone who has run a small business, practice or done HR knows there's a lot more possibly relevant information you can garner with 5 minutes on the net beyond a CORI printout.


I'll try again....do you do a criminal background check?


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## chef2sail

outbound said:


> Anybody concerned about having impaired people wandering around on deck or running the boat?


Absolutely agree....I assume you have no booze on board either right?


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## Arcb

tempest said:


> I'm not quite as confident as you though. It's still a Federal crime in the U.S. and if you are on Federal waters, you may have to answer to the Federal authorities.
> 
> https://www.boatingmag.com/how-legalized-marijuana-applies-to-boaters


I agree, in the US weed is illegal. You can be charged with possession if you are found to be in possession of it. There is a Federal law that prohibits it and is sometimes still enforced.

I was talking about drug testing. There is also a law about that. Professional US based mariners are subject to random drug testing. Recreational sailors are not. In my former career as a mariner, I was not subject to US drug consortium rules even when sailing in US waters, because I did not hold a US license. If I had been in an accident I would have been subject to post accident testing.

If a skipper choses to randomly drug test his volunteer crew, its personal. It has to do with that skippers personal preferences. Drug testing a volunteer crew could turn off lots of good (and clean) crew, because who wants to put up with that kind of BS to move somebodies yacht to the carribean for them?

If the skipper in this storey is found to be guilty of something, I don't think not doing preliminary drug testing is going to be what he goes down for.

The weed on board might not look great to a conservative jury, but I cant see it as being a pivotal detail.


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## tempest

Arch, 

I wasn't suggesting that recreational skippers need to test. With States making usage legal, I simply wanted to remind folks that the Federal law could still be enforced on Federal waters, regardless of what the states do.

With regards to this case, the CG questioner knew there was pot on board. The next logical question to me, would have been, was anyone under the influence at the time of the incident. Followed by, was anyone on deck wearing life jackets in 10' seas and 20 knot winds. ( if they were, in fact, the conditions) Both questions may be irrelevant, but are of interest to me.


----------



## outbound

Chief thought I addressed this, as most people who’ve hired others or work HR know there’s a lot more than a CORI you can get with $5 and 5 minutes of internet time. 
No, there’s etoh on the boat. It stays in the drinks locker on passage.
Now back to your regular scheduled program.


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## RegisteredUser

At this time, all players are in position, batter is ready....but all bases have been removed....
Whatdaudo.....:grin


----------



## SeaStar58

Arcb said:


> Jeez, I can see why you guys use volunteer crew, I dont know too many professional sailors that would agree to those kinds of terms.
> 
> But then again, I come from a country where its against the rules to randomly test even professional seaman for drugs and Marijuana is legal and sold to the public by the government, so I guess I might just have a different perspective on this item.


Here in the US its common to test employees for drug and nicotine usage along with body mass, blood pressure, etc. Many labs that provide this service require you to face the camera so it can be seen that the urine is coming out of the proper part of your actual anatomy too and the DNA matches your blood test. Failure to comply means the you fail the drug test and lose the job. If you fail body mass or blood pressure you probably will not pass for more than sedentary work and even then a doctors cert based on a recent physical may be required.

Personally I don't tolerate high, buzzed or drunk people in business or even casually. You won't see them in my home, car, boat or place of business. Its all a non-smoking zone too. A casual Rum and Coke or a friendly beer is OK after the day is done at the dock or lawn party if your not the designated driver but no dancing on tables or running around wearing a lampshade as a hat impairment. If you have to be impaired to enjoy your friends company then they can't be that much fun to be around.


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## Minnewaska

hpeer said:


> "Careless lack of concern" is not required, "negligence" is required.....


Negligence isn't required either. It's misconduct, inattention to duties OR negligence. This case seems focused on the Captain's duties, not negligence. At the least, we should be focused on what is expected of us, as our duty.


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## Minnewaska

Arcb said:


> .....The weed on board might not look great to a conservative jury, but I cant see it as being a pivotal detail.


Not sure if anyone suggested it would go to the jury. I did not.

However, an investigator reviewing a case involving the duties of the Captain learns that said Captain permitted an illegal drug aboard his vessel. Do you think that causes the investigator to look further, ask more questions, etc? I think it does. Others don't.


----------



## Arcb

Minnewaska said:


> Not sure if anyone suggested it would go to the jury. I did not.
> 
> However, an investigator reviewing a case involving the duties of the Captain learns that said Captain permitted an illegal drug aboard his vessel. Do you think that causes the investigator to look further, ask more questions, etc? I think it does. Others don't.


I do, yes, I agree with you. Its a red flag.

That wasnt my point.

My point was, that unless a skipper is literally carrying an ionscanner or a drug dog, a skipper is probably fooling himself about his ability to screen for small amounts of drugs for personal use coming onto a given vessel.

Drugs have just become way too easy to conceal and people carrying illegal drugs dont normally like to talk about it, because they are illegal. So a strongly worded lecture may only go so far. If some one is well practiced at concealing drugs, it can be very difficult to know they are there.

If I am looking at a tin of mints, I might not be able to tell the difference between starbucks mints or mints prepared with cannabis oil, nor could I gaurantee that I would know if some one took one before bed when they go off watch.

We dont know the details of the weed. We dont know how large it was, we dont know if it was used on board. We dont know when the skipper became aware of it. Its possible he knew about it all along, or its possible he found out only after the man overboard incident.

Gaureanteeing that you will never have a crew member bring drugs on your boat is like gauranteeing you would never have a man overboard. Its a fallacy. A lot of what matters is how you deal with it if it happens and what you did to prevent it.

Thats it for me on this thread.


----------



## SeaStar58

Arcb said:


> I do, yes, I agree with you. Its a red flag.
> 
> That wasnt my point.
> 
> My point was, that unless a skipper is literally carrying an ionscanner or a drug dog, a skipper is probably fooling himself about his ability to screen for small amounts of drugs for personal use coming onto a given vessel.
> 
> Drugs have just become way too easy to conceal and people carrying illegal drugs dont normally like to talk about it, because they are illegal. So a strongly worded lecture may only go so far. If some one is well practiced at concealing drugs, it can be very difficult to know they are there.
> 
> If I am looking at a tin of mints, I might not be able to tell the difference between starbucks mints or mints prepared with cannabis oil, nor could I gaurantee that I would know if some one took one before bed when they go off watch.
> 
> We dont know the details of the weed. We dont know how large it was, we dont know if it was used on board. We dont know when the skipper became aware of it. Its possible he knew about it all along, or its possible he found out only after the man overboard incident.
> 
> Gaureanteeing that you will never have a crew member bring drugs on your boat is like gauranteeing you would never have a man overboard. Its a fallacy. A lot of what matters is how you deal with it if it happens and what you did to prevent it.
> 
> Thats it for me on this thread.


They put the oil in smokeless cigarettes for medical usage and even though only Medical Marijuana is legal in Florida too many recreational users are getting a hold of it. Many are pretty easy to pick out when they are buzzed by it as they are more easily confused, find even the worst jokes funny and really horrible suggestions become acceptable plus they are constantly puffing on their E-Cigarette/Inhaler.

I wouldn't want a marijuana buzzed helmsman playing surf the boom on my boat laughing like an idiot while he's attempting to lay the boom and rail in the water.

Caught one who while he was buzzed on marijuana oil using an inhaler that thought it would be funny to piss a little on every ones bunks to see how long it would take them to figure it out. That was on land and not under my control but really firmed up my resolve that it was not going to be allowed when it was on my watch. I did stop him and make him go outside until he sobered up.


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## Minnewaska

Arcb said:


> ....
> 
> We dont know the details of the weed. We dont know how large it was, we dont know if it was used on board. We dont know when the skipper became aware of it. Its possible he knew about it all along, or its possible he found out only after the man overboard incident.....


All true, plus we don't know how the media learned of it. We also don't know if it's true. It's not really the point anyway.

The take away, for me, is to keep one's nose clean when responsible for crew, as any indiscretion could cause an investigator to look closer and closer.


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## Sal Paradise

Yes, the above posters are right on. 

To me, the weed and gun are mostly indicative that someone had poor judgement. But I think that is the crux of the case. Bad judgement. It may have been momentary lack of judgement that he didn't turn the boat around, or earlier than that - set a course for a U.S. port where the sick crewman could be treated. Or even call in a mayday and have the CG pick the guy up.

Perversely, I think the Dunning Kruger effect will have the responsible skippers taking away lessons while the worst ones will think whatever they do is fine and justifiable. It's a no brainer for most of us.


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## Don L

chef2sail said:


> Absolutely agree....I assume you have no booze on board either right?


It takes up sooooooo much room! Pot and LSD etc. are much more effective and space efficient :devil

And on a similar item, handguns are soooooo inefficient and hard to hit your target on a moving boat. Sawed off shotguns and full auto assault rifles are much more effective. :gunner


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## Sailormon6

Minnewaska said:


> However, an investigator reviewing a case involving the duties of the Captain learns that said Captain permitted an illegal drug aboard his vessel. Do you think that causes the investigator to look further, ask more questions, etc? I think it does. Others don't.


Previously you asked me a question, and I answered it, and you didn't like the answer, so now you ask a different question and claim that my answer to your first question was wrong.

In the first question you asked if the presence of an illegal drug (marijuana) on a boat would cause a prosecutor to consider it as a strike against his credibility and to spur him to see what other abnormalities there were. I answered that the prosecutor wouldn't consider it a strike against his credibility, because it was irrelevant to the homicide. A judge wouldn't permit the drug to be mentioned in the presence of a jury. I also said the prosecutor would remain focused on the much more serious offense, ie. the homicide, and not chase a minor offense up a blind alley. I could also have mentioned that, with rather rare exceptions, prosecutors don't generally investigate cases. Investigators investigate cases. Prosecutors generally only get into investigations when their particular investigative tools are needed. A prosecutor who becomes too closely involved in an investigation can lose his immunity and create other problems.

But in the second iteration of your question, you're still wrong. Now you're asking if an investigator (instead of a prosecutor) who is reviewing a homicide case learns that the Captain permitted an illegal drug aboard his vessel, would that cause the investigator to look further, ask more questions, etc? The answer is no for all the same reasons.

If the drug found was something other than marijuana and the amount of drug found was more than for personal use, then they would certainly address it, but, in the context of this case we're only talking about a small quantity of marijuana, and law enforcement people regard marijuana for personal use as a very low level concern, and unproductive.

If you want more proof, consider the fact that the investigator knew about the marijuana in this case and didn't in fact pursue it. Why? Because it was a de minimis offense and besides, the evidence needed to convict was lying on the bottom of the Atlantic Ocean. There's nothing left to investigate.

In 2019, if law enforcement chased all the personal users of marijuana, we'd need at least ten times the number of police and prosecutors on the payroll. You don't want that.

Police and prosecutors don't ordinarily approach their jobs with the attitude to just hang something, anything, on a citizen with a previously unblemished record. That wasn't part of the oath that I took.


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## boatsurgeon

Sailormon6 said:


> Previously you asked me a question, and I answered it, and you didn't like the answer, so now you ask a different question and claim that my answer to your first question was wrong.
> 
> In the first question you asked if the presence of an illegal drug (marijuana) on a boat would cause a prosecutor to consider it as a strike against his credibility and to spur him to see what other abnormalities there were. I answered that the prosecutor wouldn't consider it a strike against his credibility, because it was irrelevant to the homicide. A judge wouldn't permit the drug to be mentioned in the presence of a jury. I also said the prosecutor would remain focused on the much more serious offense, ie. the homicide, and not chase a minor offense up a blind alley. I could also have mentioned that, with rather rare exceptions, prosecutors don't generally investigate cases. Investigators investigate cases. Prosecutors generally only get into investigations when their particular investigative tools are needed. A prosecutor who becomes too closely involved in an investigation can lose his immunity and create other problems.
> 
> But in the second iteration of your question, you're still wrong. Now you're asking if an investigator (instead of a prosecutor) who is reviewing a homicide case learns that the Captain permitted an illegal drug aboard his vessel, would that cause the investigator to look further, ask more questions, etc? The answer is no for all the same reasons.
> 
> If the drug found was something other than marijuana and the amount of drug found was more than for personal use, then they would certainly address it, but, in the context of this case we're only talking about a small quantity of marijuana, and law enforcement people regard marijuana for personal use as a very low level concern, and unproductive.
> 
> If you want more proof, consider the fact that the investigator knew about the marijuana in this case and didn't in fact pursue it. Why? Because it was a de minimis offense and besides, the evidence needed to convict was lying on the bottom of the Atlantic Ocean. There's nothing left to investigate.
> 
> In 2019, if law enforcement chased all the personal users of marijuana, we'd need at least ten times the number of police and prosecutors on the payroll. You don't want that.
> 
> Police and prosecutors don't ordinarily approach their jobs with the attitude to just hang something, anything, on a citizen with a previously unblemished record. That wasn't part of the oath that I took.


Interesting. I must admit that I haven't "bought" some of your posts, as they flew contrary to my personal bias, however, as explained, this makes a lot of sense to me.

But what I don't get, is if the prosecution was able to present the moral argument that the discarding of the weed indicated a lack of honesty in the captain in general, and therefore his testimony less trusted, would the jury not be more receptive to the prosecutions argument of wrong-doing, when the only contrary evidence is the Captain's testimony?

My issue is with the moral side of the story. Based on what I currently understand, I believe the Captain's actions were morally reprehensible, and he is guilty of negligence, regardless whether the prosecutor can convince the jury to make the charge stick.


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## Sailormon6

I don't deal in personal biases. I deal in facts and law.

I get what you're saying, BS, but you're trying to discuss trial planning and strategy, while you're thinking like a layman, not a prosecutor. In a trial for a homicide, the only evidence that can be introduced is proof of the homicide. The prosecutor won't be allowed to produce testimony or physical evidence about any crime for which the accused hasn't been charged. The purpose of the trial is to determine if he committed the crime of homicide, not any other crime. Generally, the prosecutor also won't be allowed to produce evidence of other crimes that the accused might have committed in the past, even though he was convicted of them. If he was guilty of possessing marijuana 5 years ago, that doesn't tend to prove that he committed this homicide. It's irrelevant. The way it might become relevant is if the accused puts his character in question by testifying in his defense. A layman might think those matters are relevant, but the courts long ago established rules that govern those issues, and they are generally inadmissible with occasional exceptions. A prosecutor isn't generally interested in any information that he can't use to help him convict the accused.


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## MarkofSeaLife

Latest from the news:



> Camden captain charged in crewman's death asks judge to let witness testify by video
> The attorney for Richard Smith, who is charged with seaman's manslaughter, says his client can't afford to pay to have the expert travel to the trial that beings Monday in the U.S. Virgin Islands.
> 
> BY STEPHEN BETTSTHE COURIER-GAZETTE
> Share
> 
> Capt. Richard Smith stands at the helm of his sailboat, the Cimarron. Smith, who charters in Camden and the U.S. Virgin Islands, has been charged in connection with the death of a crew member aboard the boat in 2015. An initial Coast Guard investigative report of the incident said Smith and others aboard the vessel "tried to handle the sailor's apparent break the best they could." Photo courtesy of Ashley Rose
> The Camden charter boat captain who is charged with seaman's manslaughter in the death of a crew member is asking a federal judge in the U.S. Virgin Islands to allow him to have an expert witness testify remotely during his trial.
> 
> Richard Smith is scheduled to go on trial in U.S. District Court in St. Thomas on Monday.
> 
> Smith's attorney, David Cattie, filed a motion Thursday asking Magistrate Judge Ruth Miller to reconsider her denial of a request for marine expert and consultant Capt. Stephen Richter to testify remotely from the federal court in Philadelphia.
> 
> The court had denied the motion, saying it had concerns about the possibility of connectivity problems using a video feed. Cattie argued that he has used a video feed to participate in court proceedings on several occasions.
> 
> RELATED
> Prosecution lays out case against Camden charter boat captain charged in 2015 death
> "The defense in this case is facing the prospect of not having a critical witness testify because Mr. Smith is too poor to pay the costs of having the witness appear live," the motion says.
> 
> The government's prosecution of Smith has rendered him "functionally destitute," Cattie said.
> 
> The cost for Richter to travel to the Virgin Islands and testify has been estimated at $12,000.
> 
> Richter is a marine and navigation consultant, master captain, and expert witness in legal cases, according his website. He is expected to testify that Smith's actions after crew member David Pontious jumped overboard on Oct. 25, 2015, 400 miles off Cape Fear, North Carolina, were not negligent.
> 
> A federal grand jury in the Virgin Islands indicted Smith in July on a charge of seaman's manslaughter. The indictment was sealed, and Smith was arrested on Nov. 2 after arriving in the Virgin Islands, where he operates his charter business during the winter. He has been free on bond since then, but is prohibited from sailing or leaving the island.
> 
> Cimarron, Smith's 43-foot yawl, was on its way from Maine to the Virgin Islands in October 2015, according to paperwork filed by the U.S. Attorney's Office. One crew member had to leave the vessel and Pontious became part of the four-member crew at Beaufort, North Carolina, on Oct. 21.
> 
> The indictment alleges that Smith, as captain and owner of the Cimarron, engaged in misconduct, negligence and inattention to duty that led to the death of Pontious.
> 
> A Coast Guard report says the captain and other crew members had never met Pontious before he joined the crew. Soon after the boat left Beaufort, Pontious became extremely seasick, court documents say.
> 
> Over the next few days, Pontious became dehydrated and disoriented and started experiencing hallucinations. He was on anti-depressant medication, but his constant vomiting reduced the medication's effectiveness.
> 
> Early on Oct. 25, Pontious became aggressive, according to a Coast Guard summary filed in federal court. Pontious, who was 6 feet tall and weighed 250 pounds, attacked the captain, punching him twice and trying to strangle him, the summary says. He also tried to steer the vessel to a "door" that did not exist.


https://www.pressherald.com/2019/01...w-expert-witness-in-trial-that-begins-monday/


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## caberg

I poked around on Pacer to see if anything interesting was available. Looks like the admissibility of the weed and gun are with the judge. Below is a link to the motion to preclude those issues from the trial.

Gotta say, I hope the captain's attorney presents better in court than he does through writing. This motion, along with several others I skimmed, would not give me a lot of confidence in this attorney. It looks to me -- again just from a quick skim of the legal filings, so take it with a grain of salt -- that the defense has been pretty hastily thrown together and some of the bigger issues raised in this thread are not even being explored.

https://drive.google.com/file/d/1p61aoljGsoCZyEMO82QhGPvlpdO7ahD_/view?usp=sharing


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## john61ct

Well not being wealthy usually means a huge disadvantage in our legal system


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## Sailormon6

Well, sadly I've seen much worse legal work. There was this one lawyer who couldn't get a telephone, so he used the phone in the tavern next to his office, and paid a regular patron to run to his office and tell him he had a phone call. I think his telephone service was disconnected for non-pay. :grin


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## SeaStar58

Most of us could make the trip for less than $500 however there is a flight on Sundays direct from Philly to VI for $1073 with a return on Monday evening that would get him home before midnight. Or does Captain Richter charge something like $500 an hour for travel time to get it up to $12,000? Perhaps the $12,000 seemed a bit much to the Judge too. If he made $12,000 and it took a whole week even after airfare and hotels that would still be about a half million a year income before taxes however if that was just for the 1 1/2 days then WOW! Couldn't the defense find any other experts closer to the VI who were willing to testify not guilty?


----------



## tempest

It doesn't seem like he's getting much support from either of his surviving crew. ( The only witnesses present.) Morningstar is now alleging harassment. The CG statement from Pepper, does not seem helpful to his cause at all.

If you seek to exclude a character witness for the jumper, wouldn't you risk having any of your positive character witnesses excluded as well.? 

Pepper says 6 ' seas, not choppy. ( Swell? ) + we've heard moonlit night.


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## Minnesail

I read the CG report. Wow, it is a bit rough in places. The phrases "super close to it" and "then he flipped his wig" jump out as perhaps not technical phrases.


I noticed something that has nothing to do with the captain's actions or legal standing, but may explain some of Mr. Pontius's behavior:

I noted way earlier in this thread that trazodone (one of his medications) is sometimes prescribed off-label for alcohol withdrawal. Alcohol withdrawal can really screw up your electrolyte levels and can cause severe sea sickness even in someone who doesn't normally get sea sick. It can lead to seizures and hallucinations.

Now in the report I see that he was also on atenolol. That's a high blood pressure medication, but it too is sometimes prescribed for alcohol withdrawal.

I think there's at least a possibility that he was a chronic borderline terminal alcoholic and was drying out on this trip.


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## MarkofSeaLife

Minnesail said:


> I read the CG report. Wow, it is a bit rough in places. The phrases "super close to it" and "then he flipped his wig" jump out as perhaps not technical phrases.


Yes, that's the stuff that the legal officer at the USCG must have shaken his head. 
Appeared so off-hand that the report as a whole is biased towards the captain.

Mark


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## chef2sail

SeaStar58 said:


> They put the oil in smokeless cigarettes for medical usage and even though only Medical Marijuana is legal in Florida too many recreational users are getting a hold of it. Many are pretty easy to pick out when they are buzzed by it as they are more easily confused, find even the worst jokes funny and really horrible suggestions become acceptable plus they are constantly puffing on their E-Cigarette/Inhaler.
> 
> I wouldn't want a marijuana buzzed helmsman playing surf the boom on my boat laughing like an idiot while he's attempting to lay the boom and rail in the water.
> 
> Caught one who while he was buzzed on marijuana oil using an inhaler that thought it would be funny to piss a little on every ones bunks to see how long it would take them to figure it out. That was on land and not under my control but really firmed up my resolve that it was not going to be allowed when it was on my watch. I did stop him and make him go outside until he sobered up.


OMG....sounds like you have watching too much Reefer Madness. Those comments are textbook scare tactics. If you really believe you can "spot" someone under THC , you are just fooling yourself and have already been fooled many tines

I am never in favor of any drug including alcohol use while operation of anything. Operation of a boat included. Especially when you or crew are responsible to each other's well being.

I am by no means a tea tottler. But a time and place for everything.

While a boat underway any alcohol drug will impair reaction time. Any amount. A boat is constantly underway while on blue water passage.
You never know when the need to handle and emergency will occur


----------



## chef2sail

Minnesail said:


> I read the CG report. Wow, it is a bit rough in places. The phrases "super close to it" and "then he flipped his wig" jump out as perhaps not technical phrases.
> 
> I noticed something that has nothing to do with the captain's actions or legal standing, but may explain some of Mr. Pontius's behavior:
> 
> I noted way earlier in this thread that trazodone (one of his medications) is sometimes prescribed off-label for alcohol withdrawal. Alcohol withdrawal can really screw up your electrolyte levels and can cause severe sea sickness even in someone who doesn't normally get sea sick. It can lead to seizures and hallucinations.
> 
> Now in the report I see that he was also on atenolol. That's a high blood pressure medication, but it too is sometimes prescribed for alcohol withdrawal.
> 
> I think there's at least a possibility that he was a chronic borderline terminal alcoholic and was drying out on this trip.


And the captain would have known this or if he was in procession of this how?


----------



## chef2sail

outbound said:


> Chief thought I addressed this, as most people who've hired others or work HR know there's a lot more than a CORI you can get with $5 and 5 minutes of internet time.
> No, there's etoh on the boat. It stays in the drinks locker on passage.
> Now back to your regular scheduled program.


I didn't get what your were saying. We're not talking bout a $5 search online on an internet site. I have plenty of people who work in an HR Department for me.

Since I have a staff over 500 and have hired thousands of people in my life time. I think a am qualified to stay it's easy and fairly cheap to do an extensive criminal and if needed credit check for less than $40.

The criminal background check would not only show convictions, but would show arrests as well dispositions. DUI, assaults, burglary, crimes with weapons, rape, pedifiles, which are criminal offenses. Civil cases as well as there dispositions too.

Taking someone offshore and vetting them thoroughly I would think would be your goal. It would seem someone could pass you drug search and lecture. Your medical questions , and still be hiding any of those criminal offenses I offered from you.

So answer me this: You are the captain and have three people crewing for you who have passed your criteria but you fail to vet their criminal past.

One is an escaped convict who has gone straight. Another is a recovering alcoholic with 4 DUI and the third has a restraining order for domestic abuse of a spouse and is running from an impending trial and has a bench warrant and wants to get to the Carribean. Quite a crew huh. But their drug free and looked good and gave you good answers to your interview questions, The one with the restraining order is a friend of a relative who recommended him. The recovering alcoholic is someone you got from a crew website. You fail to check their criminal backgrounds.

One the trip, the person with the restraining order gets in a verbal confrontation with you giving him orders and assaults you in a major way. The other two come to your aid and in the ensuing tussel hit him and kill him. Seems by the trial you were somewhat negligent for not doing due diligence by not thoroughly vetting them.

By the way I am not exhonorating this captain for sailing away, just refuting the posters who believe the captains negligence started at the dock. If you believe it did, your standards for crew would leave you open to a similar charge.

Also and maybe more importantly , you should consider criminally vetting these strangers you take on your boat with your wife off shore many miles all alone. You are putting trust in people you may know nothing about and putting you and your family at risk. While I believe you are well intentioned in your current vetting, it may have a huge hole in it.


----------



## Minnewaska

Sailormon6 said:


> Previously you asked me a question, and I answered it, and you didn't like the answer, so now you ask a different question and claim that my answer to your first question was wrong.


You mistook the post you are quoting here as directing a question toward you. In fact, the quote you applied was quite obviously responding to another poster's input. Most would realize by now, that you and I should agree to disagree, so I stopped responding.



> ....Now you're asking if an investigator (instead of a prosecutor) who is reviewing a homicide case learns that the Captain permitted an illegal drug aboard his vessel, would that cause the investigator to look further, ask more questions, etc? .....


This is correct. Poor choice of words in my initial comment, as I was referring to the investigative stage of the prosecution, not the trial. I've made that clear since, but you continue the subterfuge regardless.

Nevertheless, we now have a motion to suppress the evidence of the pot and the gun from the jury. So, evidently it was both considered by and used by the Prosecution itself.

Who was wrong?


----------



## outbound

Chief-a CORI is a criminal investigation.


I had multiple employees through the years. Fully aware of how to use background check services. Easy to go beyond court appearances, convictions, bankruptcies and civil actions. Amazing how much is on the net. $40 per seems a bit high. You may want to shop this. I’m lucky still have a resource for this service.so don’t know current exact costs.

Captains are supposed to monitor crew. If not fully functional investigate why. ?illness, intoxicants, emotional distress, other.
Ok, you can get beat but continue to think with just a bit of awareness the average captain would have a decent grasp of how his crew is doing. Once crew was sick for a day or two a quite sit down would probably disclosed the background not told and a plan to de escalate the situation likely would have gone a long way. And yes I think captains have the responsibility to do that or work on the situation another way even if it’s through a surrogate. 

The passage these people are doing is quite similar to what I’ve been doing for the last few years. As mentioned above commonly do it with three. Know quite a few who do it with two. So, this captain has one of four bail. He’d be with three. That’s fine. Why did he take this guy? Mark mentioned the possibility of no AP. Think most folks won’t leave without a functioning AP or vane even with four aboard. 

So it seems this captain is being tried due to his judgment or lack thereof. Some seem upset by this. Especially given he took no active destructive interventions. Rather his issues are all acts of omission. I got no problem with that his omissions are viewed as possible negligence. Lived with it my whole professional life. Naval captains are held to task for screw ups even while they’re asleep. Anybody in a mission critical no fault position on land sea or air is held to that standard. 

So as Jeff foxworthy said “you can’t fix stupid “. Remain interested if in this situation the captain was misled and in a situation where he had no viable options. Being “overwhelmed”, or any other excuse for not acting in accordance to reasonable practice does not relieve him of his duties. He’s the captain. He is supposed to be able to act as a captain. Just hope this comes to closure while I have easy internet access.


----------



## Sailormon6

Minnewaska said:


> This is correct. Poor choice of words in my initial comment, as I was referring to the investigative stage of the prosecution, not the trial. I've made that clear since, but you continue the subterfuge regardless.


 I don't fault a layman for not being completely accurate in discussing a technical matter. If I correct you, it's to help you understand better.


> Nevertheless, we now have a motion to suppress the evidence of the pot and the gun from the jury. So, evidently it was both considered by and used by the Prosecution itself.
> 
> Who was wrong?


What we have is a motion in limine, not a motion to suppress. The evidence of the pot and gun are irrelevant to the offense charged, and the only reason why the prosecutor might try to offer them up in testimony would be to impugn the character of the accused at a time when his character is not in dispute, and inflame the jurors against him. Notwithstanding what you see on tv, it's unethical for a lawyer to knowingly introduce inadmissible evidence in violation of court rules merely to inflame a jury.

The purpose of a motion in limine is to obtain a ruling from the court, before the trial, that these matters are irrelevant and inadmissible, so that they don't have to be debated during the trial, in front of the jury.

You've heard the expression, "You can't un-ring a bell." A motion in limine anticipates that irrelevant and inadmissible matters might be introduced at the trial, either intentionally or unintentionally (eg. by a witness who simply blurts it out). A motion in limine prevents the bell from ringing in the first place.

A motion to suppress is different. It is aimed at suppressing relevant evidence that might very well be admissible, but for the fact that it was a product of unlawful police conduct, such as unlawful search and seizure.

A defense lawyer doesn't file a motion in limine because he thinks the matters in question are relevant and admissible. He files it because he believes those matters are irrelevant and inadmissible, and he wants to ensure that it won't be used, intentionally or otherwise, to prejudice the accused.

Don't worry about who is right and who is wrong. We're just exchanging information and ideas.


----------



## tempest

How does the witness process go? 

Based on the latest CG investigation report, it doesn't appear that Pepper is going to be very supportive to the defense. And based on the motions in Limini, it would appear neither would Morningstar. So who calls them to testify? They are the only two witnesses to the actual events.


----------



## SeaStar58

chef2sail said:


> OMG....sounds like you have watching too much Reefer Madness. Those comments are textbook scare tactics. If you really believe you can "spot" someone under THC , you are just fooling yourself and have already been fooled many tines
> 
> I am never in favor of any drug including alcohol use while operation of anything. Operation of a boat included. Especially when you or crew are responsible to each other's well being.
> 
> I am by no means a tea tottler. But a time and place for everything.
> 
> While a boat underway any alcohol drug will impair reaction time. Any amount. A boat is constantly underway while on blue water passage.
> You never know when the need to handle and emergency will occur


No just personal experience with Marijuana users. Silly giddy idiots who had no clue how impaired they actually were and would probably swear on the Bible that using Marijuana in no way impaired them. Saw one pair of them dead at the lunch table and the autopsy showed that while they were impaired by Marijuana they forgot to put on their respirators while spraying resin and suffocated when it hardened in their lungs. While you can't spot them 100% of the time, you can spot enough of them to know its a bunch of hooey when they claim it does not cause impairment and poses no danger.

In one architectural wood working factory we spotted it because productivity was down and defects were up then the insurance carrier's investigator brought it to our attention when he unannounced swung by to see why they were paying out so much lately and caught them. Mandatory testing was put into place after that incident as it cost the company dearly to replace product and pay for delays on construction projects due to Marijuana usage by employees.

Except for in extreme medical situations where there is a prescription there is no time or place for Recreational Marijuana in my book.

Alcohol in moderation during leisure time without drunkenness is acceptable. I do enjoy Grappa and a good 30 or 50 year old Scotch.


----------



## boatsurgeon

Sailormon6 said:


> I don't fault a layman for not being completely accurate in discussing a technical matter. If I correct you, it's to help you understand better.
> 
> What we have is a motion in limine, not a motion to suppress. The evidence of the pot and gun are irrelevant to the offense charged, and the only reason why the prosecutor might try to offer them up in testimony would be to impugn the character of the accused at a time when his character is not in dispute, and inflame the jurors against him. Notwithstanding what you see on tv, it's unethical for a lawyer to knowingly introduce inadmissible evidence in violation of court rules merely to inflame a jury.
> 
> The purpose of a motion in limine is to obtain a ruling from the court, before the trial, that these matters are irrelevant and inadmissible, so that they don't have to be debated during the trial, in front of the jury.
> 
> You've heard the expression, "You can't un-ring a bell." A motion in limine anticipates that irrelevant and inadmissible matters might be introduced at the trial, either intentionally or unintentionally (eg. by a witness who simply blurts it out). A motion in limine prevents the bell from ringing in the first place.
> 
> A motion to suppress is different. It is aimed at suppressing relevant evidence that might very well be admissible, but for the fact that it was a product of unlawful police conduct, such as unlawful search and seizure.
> 
> A defense lawyer doesn't file a motion in limine because he thinks the matters in question are relevant and admissible. He files it because he believes those matters are irrelevant and inadmissible, and he wants to ensure that it won't be used, intentionally or otherwise, to prejudice the accused.
> 
> Don't worry about who is right and who is wrong. We're just exchanging information and ideas.


OK, I'm interested.

The defense is going to provide all kinds of testimony to convince the jury the skipper is of upstanding, impeccable character (donates to charity, pets kittens, etc.).

Why should the prosecutor not be able to provide contrary testimony that shows the captain performed some "shady" actions DURING the period of this event? (Not a character assignation, just the truth that demonstrates the other side of the type and character of person they are trying.)


----------



## tempest

It would seem to me that the Prosecution needs to establish that a " duty" existed once the man jumped overboard. Then, that the Captain failed to perform that duty. 

The Captain will argue, as many here do, that once he was attacked, his duty was to himself, his remaining crew and his ship. And, that he was convinced that the man had perished immediately following the jump. So that duty no longer existed. 

Could he have satisfied both duties?


----------



## MarkofSeaLife

Trial Day 1 Monday

Opening statements by both prosecution and defence.
Evidence by Pepper.



> Manslaughter trial of Camden captain opens in Virgin Islands
> The boat captain's attorneys issue subpoenas to relatives of the crewman who died.
> 
> BY SUZANNE CARLSONVIRGIN ISLANDS DAILY NEWS
> Share
> 
> Richard Smith
> ST. THOMAS, U.S. Virgin Islands - Charter captain Richard Smith's trial on seaman's manslaughter began Monday with his defense attorneys serving the victim's family subpoenas, a move the prosecution alleged was designed to keep them out of the courtroom.
> 
> Smith, 65, owner of the sailing vessel Cimarron, was charged Nov. 2 in connection with the Oct. 25, 2015, drowning of crew member David Pontious, 54, of Beaufort, North Carolina. Pontious was helping transport the 43-foot yawl to St. John for the winter charter season after it had spent the summer in Camden, Maine.
> 
> Richard Smith
> While a U.S. Coast Guard investigator found that Pontious jumped overboard in the midst of a violent psychotic episode and Smith was not at fault, federal prosecutors argue that Smith was negligent in not seeking medical attention for Pontious before he jumped overboard and for not doing more to try to rescue him after he did.
> 
> Pontious' sister and parents, Frank and Marilyn Pontious, traveled to the territory for the trial, and were issued subpoenas by defense attorneys when they walked into court Monday.
> 
> Assistant U.S. Attorneys Daniel Huston and Sigrid Tejo-Sprotte argued that defense attorneys Michael Sheesley and David Cattie issued the last-minute subpoenas in an attempt to keep Pontious' family members out of the courtroom for the duration of the trial. Tejo-Sprotte also cited federal law requiring that victims in criminal trials be allowed to be present in court.
> 
> Sheesley and Cattie said the Pontious family's testimony is necessary, and they intend to question them about Pontious' mental state before leaving North Carolina.
> 
> U.S. District Judge Curtis Gomez agreed that federal law requires witnesses to be sequestered so they are not influenced by other witnesses' testimony, and ordered the Pontious family to leave the courtroom for the remainder of Monday's proceedings, which began at around 2:30 p.m. and ended shortly before 7 p.m.
> 
> Gomez ordered defense attorneys to file an ex parte statement justifying the continued sequestration by 10 p.m. Monday, and said he would further consider the issue Tuesday.
> 
> After jury selection, attorneys made their opening statements, beginning with Huston, who calmly gave a straightforward account of what he said led to Pontious's death - a lack of action by Smith.
> 
> "This case is about a man who needed help" and Smith "failed to provide that help at every opportunity," Huston said.
> 
> Smith had recruited three volunteers to help him sail the Cimarron from Camden to St. John - Jacob Pepper, Heather Morningstar and Candice Martin. Martin left the vessel in North Carolina and arranged for Pontious to take her place for the remainder of the journey because of a prior commitment, and Smith and the other two crew members met Pontious for the first time when he boarded the ship.
> 
> Pontious immediately became seasick when the ship departed North Carolina on Thursday, Oct. 22, and was so ill and dehydrated he started to hallucinate and grew progressively worse Friday into Saturday, Huston said.
> 
> Late Saturday evening, Huston said Pontious hallucinated a door in the sky - he apparently believed he had been transported to a fake world, and the door would lead him back to reality - and ordered Smith to take him to it.
> 
> Smith "responded aggressively, something to the effect of 'touch my equipment again and I'll slit your throat,'" Huston said. "After that verbal threat is made, the situation escalates."
> 
> Pontious announced to Smith and the other crew that "if you won't take me there, I'll go myself," and stepped off the boat at about 1:30 a.m. Sunday morning - according to testimony by Pepper - never to be seen again, Huston said.
> 
> Smith did not stop the Cimarron and "did not even throw a life ring," Huston said.
> 
> He acknowledged that Smith made "some effort to make radio contact, belatedly," and did not officially report Smith missing until about 8 a.m. the following day when he told the ship's weather router via single sideband radio that Pontious had gone overboard more than 24 hours earlier.
> 
> Smith caused Pontious's death through negligence, Huston said, and "failed to make any effort whatsoever" after he went overboard.
> 
> Sheesley shot back in a fiery opening statement that "I'm a little bit upset because I don't believe that the government has given you the whole story."
> 
> Smith is an experienced sailor who has been traveling around the Caribbean since the 1970s, and has made 70 trips to and from Maine and St. John over the decades, Sheesley said.
> 
> Pontious was an experienced sailor and sailing instructor, and Smith and other crew members attempted to help Pontious through his bout of seasickness and provide what aid they could while he was incapacitated by nausea, he argued.
> 
> Sheesley highlighted apparent improvements in Pontious' condition in the hours before he stepped overboard - including that he ate dinner and stood a two-hour watch from 6-8 p.m. - and said crew members were hopeful he would stop hallucinating and return to normal.
> 
> Instead, Pontious made distressing statements to other crew members indicating he believed he'd been kidnapped and was unsure where he was, and had apparently been taking medication for medical conditions he did not disclose to Smith, Sheesley said.
> 
> "We don't know what else David Pontious was on, we don't know if he was on illegal drugs," Sheesley said.
> 
> When Pontious grabbed the ship's only spotlight in an effort to search for the portal in the sky, Smith wrestled him for it and said if he touched another piece of equipment "I'll slit your throat you son of a *****," Sheesley said.
> 
> Smith was angry and disoriented by Pontious' unusual behavior, and was worried for the safety of Pepper and Morningstar, as all three were physically smaller than Pontious, who was more than 6 feet tall and weighed about 260 pounds, Sheesley said.
> 
> "Imagine, midnight in the middle of the ocean," Sheesley said. "You can't get away from him."
> 
> Pepper took the stand Monday and described the events leading up to Pontious' death, at times struggling to recall specific statements or details three years after the incident.
> 
> Pepper testified that Smith plotted the coordinates where Pontious went overboard and attempted to make mayday calls a few minutes later, but the ship was approximately 300 miles offshore, too far for either the VHF or single sideband radio to make a successful communication.
> 
> The call Monday morning to a weather router resulted in the U.S. Coast Guard flying a C-130 over the ship to enable radio communication with Smith, who continued sailing to St. John, Pepper said.
> 
> Smith did not throw a life ring overboard or activate an emergency beacon when Pontious went overboard, Pepper testified, but after the plane flew off to search for Pontious's body, Smith threw a ring into the water and told the remaining crew, "can't say I didn't throw a life ring."
> 
> Pepper will return to the stand Tuesday to continue giving testimony.
> 
> Read the story in the Virgin Islands Daily News.


https://www.pressherald.com/2019/01/08/manslaughter-trial-of-camden-captain-opens-in-virgin-islands/


----------



## Sailormon6

boatsurgeon said:


> OK, I'm interested.
> 
> The defense is going to provide all kinds of testimony to convince the jury the skipper is of upstanding, impeccable character (donates to charity, pets kittens, etc.).
> 
> Why should the prosecutor not be able to provide contrary testimony that shows the captain performed some "shady" actions DURING the period of this event? (Not a character assignation, just the truth that demonstrates the other side of the type and character of person they are trying.)


The prosecutor is not allowed to offer evidence to impugn the character of the accused *unless and until* the accused offers evidence of his good character.

Don't take my word for it. Here's a summary of the principles from Wikipedia.

"In the United States, character evidence is inadmissible in a criminal trial if first offered by the prosecution as circumstantial evidence to show that a defendant is likely to have committed the crime with which he or she is charged-the prosecution may not, in other words, initiate character evidence that shows defendant's propensity to commit a crime. However the prosecution may introduce character evidence for certain limited purposes *after the defendant does so-after the defendant has "opened the door"*-through the permissible methods and purposes explained below in "Character evidence offered by the defendant," to rebut what defendant tried showing through character evidence, and to "offer evidence of the defendant's same trait."

Wikipedia went on to furnish a more detailed discussion, but this should be enough to answer your present questions.

But, even when the prosecution is allowed to offer character evidence, it still must meet all the other standards for the admissibility of evidence, such as relevancy, materiality, probity, etc.

Here's a link to an article covering the subject. Read as much of it as you can tolerate. http://www.law.indiana.edu/instruction/tanford/b723/06char/T06.pdf


----------



## Minnesail

Minnesail said:


> I think there's at least a possibility that he was a chronic borderline terminal alcoholic and was drying out on this trip.





chef2sail said:


> And the captain would have known this or if he was in procession of this how?


In my second paragraph I said:



Minnesail said:


> I noticed something that has nothing to do with the captain's actions or legal standing


We've beat the legal and ethical bits of this to death, what I'd really like to hear is the narrative and back story. What the hell happened out there?

Now that the trial has started I hope we learn more. I'd like to hear details of the voyage.

I'd also like to know more about Mr. Pontious's medical condition and previous behavior, just for personal curiosity, but it seems likely that this information won't be allowed at trial.


----------



## Minnewaska

tempest said:


> ...The Captain will argue, as many here do, that once he was attacked, his duty was to himself, his remaining crew and his ship.


I think the Captain does have this duty. The concern is how he saw a threat from a man in the water. I don't think he was under an obligation to bring him back aboard, if he judged the man a threat. He simply needed to attempt to locate him and provide flotation so he wouldn't drown. Then get help, if he saw a threat.

Saying, screw him, he's dead anyway, reads as vindictive to me. As we see in today's testimony, the Captain threatened to slit the victim's throat, before the victim became directly violent. Interesting.



> And, that he was convinced that the man had perished immediately following the jump.


This is a real key point. Will any reasonable person believe that he could assess instantaneous death, let alone in the dark. Do you believe this point, as you've read it?


----------



## MarkofSeaLife

Minnesail said:


> Now that the trial has started I hope we learn more. I'd like to hear details of the voyage.


I agree! And it will really suck if they hold back the story because of the rules of evidence.

Do we know someone in St Thomas who can go sit in the court? Theres gotta be some cruisers there with nothing better to do.


----------



## Minnewaska

Sailormon6 said:


> .....You've heard the expression, "You can't un-ring a bell." A motion in limine anticipates that irrelevant and inadmissible matters might be introduced at the trial, either intentionally or unintentionally (eg. by a witness who simply blurts it out). A motion in limine prevents the bell from ringing in the first place. .....


Bingo. Even the defense counsel agrees with my point. The pot and gun are a bell.

I've made no proposition regarding the trial, only that most people would look at illegal possession of pot and a gun sideways. Can't believe an investigator wouldn't. I understand you believe otherwise, which is fine. But the bell has been rung.

My premise is that this bell could have caused some further scrutiny, just as the defense is concerned it could taint a jury.

Best not to have these bells aboard, was my ultimate point.


----------



## MarkofSeaLife

Minnewaska said:


> Bingo. Even the defense counsel agrees with my point. The pot and gun are a bell.
> 
> ....
> 
> Best not to have these bells aboard, was my ultimate point.


Are you kidding? If the Captain was *really* scared he would have gotten his gun. He didnt. so he wasnt scared.


----------



## Sailormon6

Minnewaska said:


> Bingo.
> Best not to have these bells aboard, was my ultimate point.


I prepared a reply, but I'm not going to use it. I'll let you think you "won."


----------



## Don L

MarkofSeaLife said:


> Are you kidding? If the Captain was *really* scared he would have gotten his gun. He didnt. so he wasnt scared.


Oh come on Mark, get off this useless "get the gun" track.


----------



## tempest

Minnewaska said:


> Do you believe this point, as you've read it?


As Tom Cruise once said, " It doesn't matter what I believe, only what I can prove" or something to that effect. ;-)

Each side is going to try to prove their case within the laws of evidence etc. I guess we'll get to see how they do that.

However, to answer your question, I can't imagine myself just sailing off and leaving someone in the water 200 + miles at sea. 
Even if I felt threatened, or hated the guy, I think I'd at least heave-to and go back and look. If I found him, throw some flotation and discuss the next steps. Just getting him back onboard would be no small feat


----------



## hpeer

I believe the Capt and crew are being completly honest. The easiest thing for all involved would have been a story where crew were below sleeping, Capt went below to take a leak and make a cupa, 15 min later when he came back on deck the guy was gone boat in AP. To me there is no indication of a deep cover up. 

Reguarding the trial, it appears the defense has not questioned the validity of the law based on it relating to commercial interests only. 

Is that true?


----------



## RegisteredUser

A long sailing history - twas his love and life.
70 trips ME to Virgins.
One horrible happening at sea that no person in an armchair can perceive.

When verdict is rendered, will you clap, give a fist pump...or wait to see what other armchair riders do first?


----------



## Don L

tempest said:


> As Tom Cruise once said, " It doesn't matter what I believe, only what I can prove" or something to that effect. ;-)


you guys can't handle the truth!


----------



## Minnewaska

tempest said:


> As Tom Cruise once said, " It doesn't matter what I believe, only what I can prove" or something to that effect. ;-)


One of the quoted cases, early in the thread, said the burden of proof for a dead MOB was on the Captain. IIRC, one had a duty to attempt recovery, unless it was known the MOB was dead. But you had to prove you knew he was dead, the state didn't have to prove he wasn't.

If that case stands today, it has to be a hard sell to say you saw someone immediately drown at night. People don't immediately drown. Given it was night and they kept sailing, it stands to reason the victim died some time later and the crew didn't witness it.


----------



## tempest

Don0190 said:


> you guys can't handle the truth!


There you go with those winch Handles again ! ;-)


----------



## boatsurgeon

Sailormon6 said:


> The prosecutor is not allowed to offer evidence to impugn the character of the accused *unless and until* the accused offers evidence of his good character.


This is all that was necessary. Thanks.

So now that the defense has detailed the extent of the skippers "experience" as a captain, can the prosecution not bring up the weed and the gun and ask if these actions would be common for a captain of this experience?

But more importantly, I am interested in the defense statement

"We don't know what else David Pontious was on, we don't know if he was on illegal drugs," Sheesley said.

I know Pontious is not the accused, but is that legal? If they don't know if he was on illegal drugs, can the defense ring that bell? Why not say that about anyone in court for any reason. Your honour, we don't know if the person is a pedophile, or is on crack cocaine, as there is no evidence whatsoever, but he could be, there are 1000's in this country who are and do.

How relevant is that?

Is it a trick to try to drag the prosecution down the rabbit hole defending Pontius' behaviour and detailing at great length all of the (legal) drugs he was on?


----------



## Don L

tempest said:


> There you go with those winch Handles again ! ;-)


I've got this one handle that came with the boat and is a lot heavier than all the others and sometimes think I should toss it over. But, thanks to this thread I now understand why that handle is on the boat and I'm going to look at a new place to mount it.


----------



## OldEagle

> the defense statement
> 
> "We don't know what else David Pontious was on, we don't know if he was on illegal drugs," Sheesley said.


Sounds like distraction
The basics remain:
(1) victim had evidence of a significant medical problem when he boarded
(2) he got sick early
(3) he got worse and started hallucinating (by Day 2)--a medical emergency. External help was not obtained; the captain didn't head for shore (at most 2 days away)
(4) in a hallucinatory, delusional state (Day 4) the victim attacked the captain, then jumped overboard
(5) captain made no effort to retrieve him

Frankly, it doesn't matter, for the captain's, or the law's purposes, why the victim was hallucinating. Illicit drugs? inability to absorb/retain his medications? Water and electrolyte derangements from vomiting? Alcohol withdrawal with DTs? Whichever, or whatever other possibility was in play, doesn't matter--these would be issues for a doctor in an emergency room to sort out, not the boat's crew. What mattered aboard was that the sick crewman could not help himself, and the captain couldn't diagnose or treat him--he needed external help.

I think the captain's best defense will be that he believed that this man would have posed a life-threatening risk to him or to his crew if he had been retrieved. I don't think that would have been true (he would have been too debilitated) and he captain ought to have recognized that, but an argument that in the emotion and stress of having just been attacked (choked) the captain couldn't think it through in time might convince a few jurors.


----------



## outbound

I’m getting tired of the “armchair “ crack. There are a lot of professionals and cruisers on this thread who deal with taking on temporary crew for passage. We may vet crew sitting in an armchair but but don’t captain from one.
Without being in the courtroom hard to say how things are going but the surface impression is the prosecution made the stronger case imho.


----------



## RegisteredUser

The armchair, not there, never was onboard....makes its case on the Net.


----------



## Sailormon6

boatsurgeon said:


> This is all that was necessary. Thanks.


 You're welcome.



> So now that the defense has detailed the extent of the skippers "experience" as a captain, can the prosecution not bring up the weed and the gun and ask if these actions would be common for a captain of this experience?


 Of course not. When the defense said the accused is an experienced captain, they were simply describing how he occupied his time. It was the equivalent of saying he's a banker or a carpenter or even a retiree. That says nothing either positive or negative about his *character*. The prosecutor can't impugn the defendant's character until *he* makes an issue of it.

Besides, how does the captain's lawful possession of a firearm in his home impugn his character? I have several legal firearms in my home, as do many of us. Does that make me a person of low character? In fact, I have a legal permit to carry a concealed firearm, valid at last count in about 28 states, and do frequently carry concealed, and, as a prosecutor and thus a "law enforcement officer," have done so for many years. Does that make me and all law enforcement officers people of low character? You anti gun folks really have to get a grip on your biases. You actually believe his possession of a firearm is a black mark against his *character*. The possession of the gun on his boat, ie. his home, is legal. How about his possession of a Leatherman tool. It has a knife blade and is carried concealed in a pouch. Is that a black mark on his character? How about the knives in the silverware drawer? C'mon!



> But more importantly, I am interested in the defense statement, "We don't know what else David Pontious was on, we don't know if he was on illegal drugs," Sheesley said.
> 
> I know Pontious is not the accused, but is that legal? If they don't know if he was on illegal drugs, can the defense ring that bell? Why not say that about anyone in court for any reason. Your honour, we don't know if the person is a pedophile, or is on crack cocaine, as there is no evidence whatsoever, but he could be, there are 1000's in this country who are and do.
> 
> How relevant is that?


 You just have to trust that the brilliant prosecutor (they all are you know), will protect his case by objecting to anything objectionable, and file a motion in limine wherever necessary to protect his case.

In that statement, the defense isn't saying anything either good or bad about the *character* of Pontius. They're pointing out that there is a big *gap* in the information that the prosecutor is providing, and it's a very crucial gap. The prosecution isn't disclosing whether Pontius was using any illegal drugs. If you were a member of the jury, wouldn't you want to know if Pontius death resulted from his own abuse of illegal drugs before you convict the accused of a homicide? The defense is beginning to create doubt in the minds of the jurors that the captain was the primary cause of Pontius' death.



> Is it a trick to try to drag the prosecution down the rabbit hole defending Pontius' behaviour and detailing at great length all of the (legal) drugs he was on?


 Maybe, but great tricks make great and memorable, and instructive, trials. Nevertheless, no matter which side you're on, whether prosecution or defense, you have to accept all the witnesses and all the participants as you found them, with all their warts and blemishes. You don't get to choose only priests and nuns for your witnesses and victims.

I'm anxious to see if the defense asks this key question, perhaps during closing argument. "How do we know that Pontius, in his utter irrationality, didn't gasp when he hit the cold ocean water, take in both lungs full of water, and sink immediately, just as the captain described? If it happened that way, the captain didn't cause Pontius' death, and you must acquit. Pontius himself jumped in the water, and Pontius caused his own death."


----------



## hpeer

Hard to know how the jury will hear this. 

In the first place I think we are all loosers for this case coming to trial for if it stands it will extend this archaic law into our domain as recreational sailors. Doesn’t matter the outcome of the trial, the recreational boating community looses. 

Secondly when we put someone in command we are trusting in that person to make decisions at the moment. Those moments are very hard and IMHO one can say whatever they want, but when the real event happens all kinds of things go on within ones head. I tend to give the Capt a certain latitude in judgement as he was the man on the spot at the time. I wasn’t there and I dislike second guessing him. I never thought I would ever say this in my life, but I think I have more faith in humanity that most folks here. That is really, really odd 

None of this is to convience, just rambling a bit, reflecting on the state of affairs.


----------



## tempest

Sailormon6 said:


> I'm anxious to see if the defense asks this key question, perhaps during closing argument. "How do we know that Pontius, in his utter irrationality, didn't gasp when he hit the cold ocean water, take in both lungs full of water, and sink immediately, just as the captain described? If it happened that way, the captain didn't cause Pontius' death, and you must acquit. Pontius himself jumped in the water, and Pontius caused his own death."


Then the Prosecutor ( being on the ball, as they are) Would say, that by not doing the due diligence expected of a Trained Captain to conduct a MOB Search it's also possible that the survival instinct kicked in and the man surfaced a minute later Alert as you and me, and watched the ship sail away @ 5 knots.

I'm anxious to hear, who will testify that the man hit his head going in.

I also read that the 1st radio calls weren't made until 30 minutes later. Some 2.5 miles away @ 5 knots.

Why not stop, look and make the Radio call from the spot. I guess they'll argue that he was too shaken from the attack and then regained his cool 30 minutes later.


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## chef2sail

outbound said:


> Chief-a CORI is a criminal investigation.
> 
> I had multiple employees through the years. Fully aware of how to use background check services. Easy to go beyond court appearances, convictions, bankruptcies and civil actions. Amazing how much is on the net. $40 per seems a bit high. You may want to shop this. I'm lucky still have a resource for this service.so don't know current exact costs.
> 
> Captains are supposed to monitor crew. If not fully functional investigate why. ?illness, intoxicants, emotional distress, other.
> Ok, you can get beat but continue to think with just a bit of awareness the average captain would have a decent grasp of how his crew is doing. Once crew was sick for a day or two a quite sit down would probably disclosed the background not told and a plan to de escalate the situation likely would have gone a long way. And yes I think captains have the responsibility to do that or work on the situation another way even if it's through a surrogate.
> 
> The passage these people are doing is quite similar to what I've been doing for the last few years. As mentioned above commonly do it with three. Know quite a few who do it with two. So, this captain has one of four bail. He'd be with three. That's fine. Why did he take this guy? Mark mentioned the possibility of no AP. Think most folks won't leave without a functioning AP or vane even with four aboard.
> 
> So it seems this captain is being tried due to his judgment or lack thereof. Some seem upset by this. Especially given he took no active destructive interventions. Rather his issues are all acts of omission. I got no problem with that his omissions are viewed as possible negligence. Lived with it my whole professional life. Naval captains are held to task for screw ups even while they're asleep. Anybody in a mission critical no fault position on land sea or air is held to that standard.
> 
> So as Jeff foxworthy said "you can't fix stupid ". Remain interested if in this situation the captain was misled and in a situation where he had no viable options. Being "overwhelmed", or any other excuse for not acting in accordance to reasonable practice does not relieve him of his duties. He's the captain. He is supposed to be able to act as a captain. Just hope this comes to closure while I have easy internet access.


Because over half of my employees work in govt sensitive areas such but not limited to be US House of Representatives, US Senate, World Bank, IMF, NSA, State Department, as well as the Fed, my investigation agency and report mirrors the Homeland Security, FBI , and Secret Service background checks. Fourty dollars per person really is not exorbanant. Included is a drug test. So I really don't need your advice on some penny ante internet investigative company you use. Try to stay in your Lane and area of expertise and leave disciplines you have limited knowledge of to people who have that knowledge lest you lead others along a wrong trail. You have great expertise in sailing areas, large sailboat handling it seems , but you can't nor should you pretend to know all about all. Vetting people is not your fortay it seems just by what you state about your process that's obvious.

Sorry to digress from the at hand subject. After doing more extensive reading on the captain and the news reports as well as the CG report, interviews of others I still am confused why there was a lag time of a couple years for the prosecutor to file this case. There is enough evidence to at least question the Captain on what happened hopefully, on the voyage. I don't feel qualified to make statementnts after that on legally what the answers mean

Seem to me that the prosecutoR had better hang his hat on action of the captain specifically while on the boat.

This thread has pointed out pretty convincingly to me as I listen to others who take crew they really don't know or refuse to admit that their current vetting procedures have many weaknesses in them.

It has also pointed out to me the danger of not really KNOWING and thoroughly vetting your crew.

More than a couple of the captains on here do not see value in doing criminal background checks. They could be inviting potentially allowing criminals on board exposing the sellers, loved ones and other crew to danger.

In another area....drugs. Some posters rail about not allowing drugs on the boat, but when pressed to Identify their vetting techniques most do not search belongings , and leave it to a believing the answer to the question to the crew, " do you take or have illegal drugs? " Is enough. One veteran passage maker who I respect his sailing ability beleives a scolding the as the " you better not bring them aboard " is effective. Another posters, laughingly thinks all people who spoke pot can be spotted by the incessant giggling and voracious appetites. To this end I hope they recognize their own short comings in that they can be easily fooled by a drug user who they may be inviting on the passage as crew. They could be leaving themselves open to negligence lawsuits as they beleives the captain is guilty of. They could have the boats impounded should a foreign police / CG decide to search their boat we they checking in . They will have no trouble searching everywhere. I suggest you are as thorough.

To me it's sadly apparent in today's world, that people who travel offshore on long trips with outside crew, should take great care in vetting both criminal and drug. Had this as captain done that I'm sure Portuios would never had made it on board. Had he known the captain did a criminal background check and drug test, he probably wouldn't have tried.

Lastly let me thank the few true experts in law as the legal system for stepping forward with their expertise in that area. It becomes easily apparent who the posters who pose As defacto legal experts pontificating opinions as facts can be dangerous if we are fooled into listening to them. That vs the true knowers of the law, it's processes, and the roles of posecutors, investigators , the system, as well as a interpretation of the law
Should be listened to as they are dealing in facts.

I beleive we are fortunate and Can learn from each other on SN if we allow the posters on here to bring their own specific areas of expertise forward. I found no matter how smart you are, or think you are, only a fool thinks he knows everything about everything and has the right to post an opinion on every area like it is fact,

Thanks again for the true legal advice from those who actually practice it.


----------



## chef2sail

outbound said:


> I'm getting tired of the "armchair " crack. There are a lot of professionals and cruisers on this thread who deal with taking on temporary crew for passage. We may vet crew sitting in an armchair but but don't captain from one.
> Without being in the courtroom hard to say how things are going but the surface impression is the prosecution made the stronger case imho.


I agree and understand. But a cruiser doesn't qualify as a jack of all trades.

I also tire of the armchairs know it all on every subject including the law.

As you admonish others look carefully in the mirror. BTW vetting people does not come under the expertise of most people, so maybe taking advice from those who do it regularly and as part of their everyday job might be prudent. That is.....If your ego allows it.

Also BTW you keep referring to me as chief....that's not my screename I would like to think you've erred at least 10 times instead of trying to bait me. Please give me the respect I give you. And even though I disagree with some of that you post like this thread, I find most of you post enlightening and I learn from the,

I will try and limit my posts in this thread going forward unless some one feels that have to go directly at me. I have not like some of its tone and that I may as so bear some responsibility for some of it.


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## Minnesail

chef2sail said:


> I will try and limit my posts in this thread going forward unless some one feels that have to go directly at me.


Challenge accepted.



chef2sail said:


> Vetting people is not your fortay it seems


And it seems spelling is not your forte!

OK, that was petty and silly. Sorry.



chef2sail said:


> Another posters, laughingly thinks all people who spoke pot can be spotted by the incessant giggling and voracious appetites.


That was funny, right? You can tell a pot head because they died at a table after inhaling fumes, or something? I suppose next they accidentally put a baby in the oven, thinking it was pot roast. Is there anything those depraved reefer junkies won't do?

If someone is absolutely wrecked you could probably tell, by their bloodshot eyes if nothing else. But if someone regularly smokes weed there's no way you're going to be able to tell if they've had just a little toast. Much like alcohol, if someone is a regular drinker there's no way you're going to be able to tell if they've had one or two drinks. It just doesn't show.

Did we ever determine who's weed it was aboard the boat? Was it the captain's, or did it belong to the crew?


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## Sailormon6

tempest said:


> Then the Prosecutor ( being on the ball, as they are) Would say, that by not doing the due diligence expected of a Trained Captain to conduct a MOB Search it's also possible that the survival instinct kicked in and the man surfaced a minute later Alert as you and me, and watched the ship sail away @ 5 knots.


The defendant's goal is to create reasonable doubt as to his negligence. If the last anyone saw was Pontius sinking fast after hitting his head, the weight of the evidence is that he drowned. There is, at the very least, reasonable doubt that he survived. The possibility that he survived is mere speculation by the prosecution, without proof. If Pontius was already dead, then the captain did not cause his death by negligently failing to search.

On cross examination, I expect that the crew will admit that they were terrified of the man, and that they feared for their lives, and that they would not be able to control him if he was brought back on board.

I expect the defense to take an approach along those lines.


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## outbound

Fully agree even the most astute after an extensive background check can be fooled. But what I don’t agree with regardless of how many ways you preen your ego (or I preen mine) is that it isn’t the purview of a captain to monitor his crew. That’s his job. As you say I don’t search the seabags of my crew and suspect few owners/captains do. However, with observation it is fairly rapidly apparent if people are functioning in an appropriate fashion. It’s fairly apparent who needs closer monitoring. Maybe I’ve missed what drugs/alcohol has come on my boat. But doubt I’ve missed who is stoned. 
Psychiatric records are usually protected even more so then the standard HIPAA act restrictionsEven if obtained difficult to abstract how this relates to the integrity of the individual. . Unfortunately, as your experience probably disclosed even careful internet screening gives no absolute reassurance of the integrity of the individual.i find the thought that if an individual had a psychiatric history it speaks to their compedence objectionable.
Getting good crew is difficult. As much as I take your advice to heart I can’t see it being anywhere close to reality that I or another captain would be able to get their crew requirements filled and be able to get drug screening . If I was doing that probably want a lock of pubic hair. Gives the most accurate and detailed information. Want to collect that on your next crew?
Still, I owe you an apology. Had no idea I was posting Chief not Chef. My bad. Thanks for bringing that to my attention. Have much respect for chiefs and chefs. We’re off one the wrong foot. But still think this was an avoidable death. I know the most dangerous people are those who don’t know what they don’t know and I know I have little to no practical knowledge of this statute. But like to think everyone on this thread has given some thought as how to captain. 
Ran this story by my wife.
She said”wasn’t a very good captain was he” informationt to date still suggests that to be the case. Leave to the legal eagles if his behavior was criminal.


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## SeaStar58

Minnesail said:


> Challenge accepted.
> 
> That was funny, right? You can tell a pot head because they died at a table after inhaling fumes, or something? I suppose next they accidentally put a baby in the oven, thinking it was pot roast. Is there anything those depraved reefer junkies won't do?
> 
> If someone is absolutely wrecked you could probably tell, by their bloodshot eyes if nothing else. But if someone regularly smokes weed there's no way you're going to be able to tell if they've had just a little toast. Much like alcohol, if someone is a regular drinker there's no way you're going to be able to tell if they've had one or two drinks. It just doesn't show.


Those were just two of the more extreme examples I had personally witnessed over many years that were used to demonstrate that it does impair and costs business. There are many more more obscure tells and most people give themselves away many times just by their attitudes. Sometimes by just ridiculing those who hold that recreational marijuana use is unacceptable that they let you know they are a greater risk than others. Just sitting off to the side and watching peoples reactions to the news being broadcast on TV or radio can reveal a lot about them.

Had one guy we were concerned about working with us that appeared sober as a judge but was a bit off in his behavior and personality. He was constantly using breath spray and finally had a bottle of Old Grandad fall out of his locker after which he confessed he was using the breath spray to cover up taking nips during his work day whenever he had opportunity to go by the locker room. Turned out he was an Delta Airline Captain and would take out flights in the evening after leaving his day job.

Mandatory drug and alcohol testing though is the best tell.


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## lancelot9898

I haven't read much of this thread, but I see no mention of the woman crew that recommended this person that caused all the problems. Shouldn't she be questioned? Did she know the person sailing qualifications and was he a sailing instructor as someone mentioned?? To me a recommendation from someone I had sailed with is more important than all the vetting people seem to be hung up on. If she had sailed with this person then that goes a long way in explaining why the captain allowed this character aboard. 
If I was captain and almost lost my life by an attack, I would have done anything to save my life including knocking him off the boat. I'm not sure if I could come to my senses after such an episode and try to bring him back on board, which we all claim from behind our computer screens is what should have been done.


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## outbound

Be real interesting in how this shakes up. Agree there’s much we don’t know about the attack and suicide nor how the captain reacted or even how we would. Of course we’d like to think we’d be able to protect ourselves and the other crew. Of course protecting yourself is instinctual and can’t imagine you’d be held at fault for doing so. That’s why I think the captain actions and inactions before those events are so important. Did his actions and inactions precipitate the attack and suicide and his sailing away callous not self preservation. 
Chef and others are right extensive background checks with drug testing may disclose information that would lead you to not let someone crew. Be great to have. But contend it’s not practical. Not realistic. I don’t use anywhere the number of crew that someone doing frequent passages does. Still in getting the boat to Antigua this time there were three in the original group (British Columbia, Colorado, New York). Two in the second group (vetted and left within 4 days) from the Carolinas and two from Barbados living in Grenada in the last. Don’t think this experience is unusual from what people tell me. So how would you drug test them and know it was theirs?How would you arrange it? How much would it cost?
Then the trips back. You’re in one country they’re in another. Once again the logistics of this seem formidable. 
Would think this captain can’t be held to a standard of vetting as extensive as discussed here for his original crew
Then (as this captain was) what about when someone scrubs and you need someone quickly? Here the vetting discussed here seems even more difficult to achieve. 
Also folks are right you don’t know if someone is taking something. But you do know how they are functioning.


----------



## MarkofSeaLife

Day 2
Pepper


> news
> Testimony Begins in Maritime Manslaughter Trial
> By Judi Shimel - January 9, 2019
> 
> A licensed boat captain from Maine, operating a seasonal sailboat charter on St. John, is on trial in District Court, charged with seaman's manslaughter. But the attorney representing Capt. Richard Smith says his client was the victim, not the perpetrator, in a 2015 incident resulting in a death.
> 
> Smith is accused of neglecting his duties as the master of the S/V Cimarron when crewman David Pontius went overboard after a violent altercation on Oct. 25, 2015.
> 
> According to a grand jury indictment delivered July 12, 2018, Smith is accused of a series of negligent actions resulting in the crewman's death. As prosecutors from the U.S. Attorney's Office began presenting its case on Monday and Tuesday, they brought several witnesses whose testimony addressed aspects of that alleged negligence.
> 
> Those government witnesses were challenged by the defense team of attorneys Michael Sheesley and David Cattie. Smith's lawyers argued that Pontius was unfit for duty at sea and displayed bizarre and threatening behavior brought on by dehydration and suspected drug abuse.
> 
> Witnesses included crew members sailing on a vessel-delivery run from Maine to St. John, with a stop in Beaufort, N.C.; investigators from the U.S. Coast Guard; and a relative of Pontius who spoke to Smith a few days after the disappearance. Prosecutors also bought in a marine weather forecast provider and a number of expert witnesses.
> 
> Crew member Jacob Pepper was the lead-off witness. He was one of two persons who sailed with Smith for the entire trip. Pepper's testimony lasted from Monday afternoon through mid-morning Tuesday.
> 
> Under questioning by Assistant U.S. Attorneys Sigrid Tejo-Sprotte and Daniel Hurston, Pepper spoke about the stop in Beaufort on Nov. 21, 2015, when Pontius boarded the vessel, taking the place of Candice Martin. Martin left the ship to return to her home in South Carolina, the witness said.
> 
> Almost immediately after setting sail for St. John, Pepper said, Pontius became seasick. Seasickness is common, he said, and Pontius declined an offer by the captain to return to shore.
> 
> But as the voyage continued, Pepper said Pontius' began making strange comments to him and to the other crew member, Heather Morningstar.
> 
> Comments recalled from the witness stand under questioning included where the vessel was going and why Pontius' glasses didn't look familiar.
> 
> Later, the comments suggested hallucinations were setting in. Pepper said Pontius accused his shipmates of trying to kidnap him in order to gain a ransom.
> 
> Smith confronted Pontius and asked if he was on drugs. The captain searched the crewman's quarters and said he found hundreds of pills.
> 
> When Smith asked Pontius what kind of pills they were, Pepper testified the crewman said they were for high blood pressure.
> 
> A while later, Pontius began saying he saw a portal off to the side of the boat and the vessel had to change course. Then, the witness said, Pontius picked up the ship's spotlight and pointed it in the direction where he said the portal appeared.
> 
> The captain's response was to tell Pontius, "Touch my equipment again, I'll slit your throat," Pepper told the court.
> 
> From there, the situation grew increasingly tense. Pontius sat on deck, staring at the ship's wheel and directional equipment. Now and then, he'd get up and start shaking the equipment, and then sit down again, staring, Pepper said.
> 
> When the crewman failed to convince Smith to change course, a violent confrontation ensued.
> 
> In testimony, the witness said Pontius grabbed the captain by the throat; the two men struggled and Smith called to Pepper for help. But the witness said he was never given to violence and had never been in a fight. He placed his hand on Pontius' shoulder, and was shoved away.
> 
> With the shove, came a threat: 'You'll get it next.'
> 
> Smith managed to fend off the attack, after which, Pepper said, Pontius stepped out onto the lines running along the vessel's rail and stepped over the side.
> 
> "He stood on the life lines and he stepped overboard," the witness said.
> 
> Pepper said that was the last he saw of David Pontius. The time was about 1:30 a.m. on Sunday, Oct. 25. An almost full moon shone on the waves that rose about six to eight feet.
> 
> The witness said he grabbed the spotlight and shone its beam across the water to see if he could spot Pontius. But, he said, he did not see him.
> 
> Sheesley, on cross examination, asked what happened next.
> 
> "You didn't beg Rick to turn around, did you?"
> 
> "No."
> 
> "And is it correct, Capt. Smith took the coordinates where David jumped?"
> 
> "Yes."
> 
> "You were shining the spotlight all through the ocean?" Sheesley said.
> 
> "Yes," Pepper said.
> 
> "Looking for David Pontius?"
> 
> "That's correct."
> 
> "You didn't turn the vessel around?"
> 
> "No."
> 
> "And you observed Capt. Smith call Mayday to the Coast Guard on the VHS channel?"
> 
> "Yes."
> 
> "And the VHS channel has a range of about 20 miles? At this time, the vessel is still going forward at about seven miles, eight miles an hour?"
> 
> "Yes"
> 
> Later on Tuesday, another witness pointed to a map they created based on data gathered from the voyage of the Cimarron. Coast Guard search and rescue specialist John Ware said at the time the vessel was about 340 miles southeast of Cape Fear, North Carolina


 https://stthomassource.com/content/2019/01/09/testimony-begins-in-maritime-manslaughter-trial/


----------



## caberg

If the prosecution's focus is on the captain's alleged negligent conduct _after_ the jump, then I see a big problem with causation as I stated much earlier in this thread. 1:30 a.m., 6-8 foot swells, moving at 7-8 mph, MOB without a PFD.

How many people here who have been offshore think that they could have turned around a 43' old heavy wooden yawl in these conditions and recovered a MOB? Or that an immediate call to the CG would have resulted in the MOB being recovered?

Possible? Maybe. But if it was unlikely that the MOB would have been recovered, then there should be no conviction even if the prosecution proves negligent conduct _after_ the jump. There must be a causal link between the captain's negligent conduct (or for Minnewaska, his inattention to duties, which is the same thing), and the death.


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## Don L

Hey lets get him back. I want my chance to "get it next". 

I bet that's what Pepper was thinking.


----------



## Sailormon6

Some of you see the fact that the crew/witnesses are being called by the prosecution to testify against the captain as a negative for the defense. I would see it as a huge opportunity. I have always believed that the most powerful case is constructed by using, not your own witnesses, but the opponent's witnesses. Jurors view the witnesses for each side with skepticism when they testify about things that favor their side of the case. However, if, on cross examination, they make statements or admissions that are favorable to the opposing side, jurors give great weight and credibility to those statements.

The prosecution isn't calling those crew members because the crew members think the captain ought to go to prison. They're calling them because they're the only eyewitnesses to the events, other than the captain. They're the only witnesses available to the prosecution.

But, those crew members aren't like cellmate snitches who have been offered a deal in exchange for their testimony. Those witnesses haven't been accused of any crimes. They have no inducement to fudge their testimony against the defendant. The likelihood is that they'll be truthful, and if asked the right questions, they'll make admissions that are favorable to the accused.

A lawyer is like a door-to-door salesman in one respect. Before he can make a sale, he must first get his foot in the door. When a lawyer is presenting his case, he gets his foot in the door by presenting his own witnesses, but he closes the sale if he is able to use the opponent's witnesses to buttress his own case. The prosecution's witnesses represent a great opportunity for the defense, if they use it well.


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## hpeer

Question: under this statue isnt it possible to prosecute the crew? Let’s say one person other than the Capt. was goading the guy to jump, or say hiding his meds? It’s not just the Capt that can be prosecuted but crew also, no?


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## Sailormon6

hpeer said:


> Question: under this statue isnt it possible to prosecute the crew? Let's say one person other than the Capt. was goading the guy to jump, or say hiding his meds? It's not just the Capt that can be prosecuted but crew also, no?


It's always possible to concoct a fictional scenario under some statute, probably not this one, but I haven't seen anything to even suggest that here. The crew seem to have been terrified bystanders who were not even able to bring themselves to help the captain when he was being beaten and choked. The one crew had never been in a fight and put his hand on Pontius' shoulder, but removed it when Pontius said, "You're next."


----------



## Minnewaska

caberg said:


> ....How many people here who have been offshore think that they could have turned around a 43' old heavy wooden yawl in these conditions and recovered a MOB? Or that an immediate call to the CG would have resulted in the MOB being recovered?


I have and I've said the odds are against. Not 100% against, but largely against. How would we define what odds don't require trying and who gets to decide if they're the case.



> There must be a causal link between the captain's negligent conduct (or for Minnewaska, his inattention to duties, which is the same thing), and the death.


Genuine question.... If they are the same thing, as you propose, why are the separately listed?

Negligence would seem to be the failure to take some measured degree of care, resulting in a failure, injury or loss.

One's duty, in this case, could be an expected attempt at remedy after the event, even if proper care had been taken prior.

Personally, I don't believe a Captain should have the authority to act upon whatever odds they self determine. Every crew member under their care deserves a chance and the Captain has a duty to try to recover. If he found the victim and he was still fighting mad, I'd give him a total pass, for just throwing him flotation and leaving him in the water. I wouldn't be surprised the defendant has lost sleep realizing the same thing. Just can't admit to it, given the legal consequences.


----------



## TomMaine

I believe the captain has just been exonerated.


----------



## Sailormon6

TomMaine said:


> I believe the captain has just been exonerated.


Are you sure that the report you read was about this case, and not a different case?

At the close of court yesterday, they were still scheduled to have more testimony today, then possibly put on the defense, then have oral arguments, then have the court instruct the jury, and then have the jury begin deliberations. That would be a lot to get done in a half day.


----------



## TomMaine

https://www.pressherald.com/2019/01...source=browser&utm_campaign=pushnotifications


----------



## caberg

From the link above:



> In the defense's motion for judgment of acquittal, attorneys argued that the statute known as seaman's manslaughter only applies to commercial vessels. Sheesley explained that because there were no paying customers and no commercial cargo when the Cimarron was sailing south in October 2015, it was considered a recreational or pleasure voyage. The U.S. Attorney's office for the Virgin Island opposed that motion but the judge ruled in Smith's favor.


Kind of anticlimactic end to this fascinating story.

I wonder how long ago this motion was filed? If I was the captain, I'd be very happy, but also want to know why this issue was not raised at the outset of the criminal case, before I was under strict conditions of release and paying many, many thousands for experts and trial prep.


----------



## mstern

caberg said:


> From the link above:
> 
> Kind of anticlimactic end to this fascinating story.
> 
> I wonder how long ago this motion was filed? If I was the captain, I'd be very happy, but also want to know why this issue was not raised at the outset of the criminal case, before I was under strict conditions of release and paying many, many thousands for experts and trial prep.


According to the story, the motion was filed yesterday. If this trial was like most of mine, I bet the defense attorney made this motion verbally to the judge on day one, and the judge told him that he would take it under advisement, meaning, "I'm not going to decide that one now". Once the judge heard enough evidence or had enough time to think about it, I'm guessing he told the defense lawyer that now would be a good time to file his motion in writing.


----------



## lilipad

No matter what happened, they should have stayed at their position and searched for the guy that went overboard. I think that is where the captain is liable.


----------



## caberg

mstern said:


> According to the story, the motion was filed yesterday. If this trial was like most of mine, I bet the defense attorney made this motion verbally to the judge on day one, and the judge told him that he would take it under advisement, meaning, "I'm not going to decide that one now". Once the judge heard enough evidence or had enough time to think about it, I'm guessing he told the defense lawyer that now would be a good time to file his motion in writing.


When you're talking about a guy being detained on a small island away from his home while incurring huge legal expenses, and facing a felony charge and 10 years incarceration, I'd hope that it's possible to file a motion to dismiss on an issue like this as soon as the facts come to light in the case through discovery. Actually, I would think that both sides would want to get this issue resolved by the judge as early as possible to avoid unnecessary time and expense. But I come from the civil side of things where pretrial motions to dismiss and for summary judgment are very routine and far more common than trials.


----------



## Minnewaska

One can't be guilty of a crime that doesn't apply to them. Wonder if the State can appeal that or would bother.

However, I doubt he's fully exonerated. He's openly admitted he didn't go back for a crew member and many are not going to be okay with that, regardless. Apparently, some are okay with it.

To exaggerate a point, two skippers, same boat, same passage. One has a sign that says, I'll always look for you, if you go overboard, no matter what. The other sign says, it depends. Which gets crew/passengers. 

He should get on a PR campaign shortly. His own words are public record.


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## nolatom

This doesn't make the US Attorney's office look very good. The Coast Guard did not refer the case to them for criminal prosecution, which is the typical way these cases are generated--CG, FBI, Federal Police refer the matter to DOJ.

So the USAtty in Virgin Islands brought the case "on its own". And (says the trial judge) misapplied the statute they used to charge Rick Smith. If the crew had been hired, then it should have applied. Or, if the crew had paid for their "passage", ditto. But here (I surmise) it was neither.


----------



## caberg

That's what I'm thinking nolatom. This is a relatively uncomplicated issue (from a factual standpoint) that should have been resolved at the outset of the case, either by the prosecutor deciding not to bring the case, or by a legal ruling from the judge. I'm scratching my head on this one.


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## Don L

So the procuestor has ruined this guys life and the only one who has profited is the defense attorney who let this drag out while waiting to file the basic challenge to the whole thing!!!


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## MarkofSeaLife

News



> Camden charter boat captain acquitted in seaman's manslaughter case
> Rick Smith had been charged in connection with the death of a crew member, David Pontious, who jumped overboard during a passage to the Virgin Islands in 2015
> 
> BY ERIC RUSSELLSTAFF WRITER
> 
> Share
> 
> Capt. Richard Smith stands at the helm of his sailboat, the Cimarron. Smith, who charters in Camden and the U.S. Virgin Islands, has been charged in connection with the death of a crew member aboard the boat in 2015. An initial Coast Guard investigative report of the incident said Smith and others aboard the vessel "tried to handle the sailor's apparent break the best they could." Photo courtesy of Ashley Rose
> Camden charter boat captain Rick Smith is free after a federal judge acquitted him Wednesday on a charge of seaman's manslaughter in connection with the death of a crew member in 2015.
> 
> Judge Curtis Gomez in the U.S. District Court of the Virgin Islands granted a motion for judgment of acquittal that had been filed by Smith's attorney the day before.
> 
> RELATED HEADLINES
> In 2015, a troubled sailor jumped overboard. Now the boat's captain is being held responsible
> Prosecution lays out case against Camden charter boat captain charged in 2015 death
> Manslaughter trial of Camden captain opens in Virgin Islands
> Smith's attorney, Michael Sheesley, confirmed the decision, which ended his client's trial before it reached a jury.
> 
> "This was an unusual resolution but a great result for Rick," Sheesley said by phone.
> 
> Smith, 66, had been charged with negligence contributing to the death of David Pontious, a crew member aboard Smith's sailboat, Cimarron, in October 2015.
> 
> Pontious, 54, of Beaufort, North Carolina, was one of three crew members who were helping Smith sail the 43-foot yawl from Maine to the Virgin Islands, something the captain had done every year for a decade.
> 
> According to investigative reports and court documents, Pontious joined the voyage in North Carolina after another crew member departed. Almost immediately, Pontious became seasick and his behavior grew increasingly erratic, culminating in a standoff with Smith while the Cimarron was more than 300 miles from land.
> 
> Shortly after he tried to choke Smith and take control of the helm, Pontious jumped over the side of the boat and into the ocean below. He never surfaced.
> 
> Smith, a longtime licensed charter captain, didn't report the incident until the next day and a Coast Guard investigation revealed that he made no attempts to search for Pontious, to throw him a life ring or to turn the boat around.
> 
> The captain was questioned about Pontious' death after the Cimarron arrived in the Virgin Islands, but he wasn't charged until two and a half years later, in a secret indictment.
> 
> Smith was taken into custody in November after he arrived in port in St. Thomas. He had been on house arrest since he posted bond.
> 
> Smith's trial began on Monday, with opening statements from federal prosecutors and his attorney, followed by government witnesses, including the other crew members, Jacob Pepper and Heather Morningstar. The prosecution continued its case on Tuesday, while Smith's attorneys simultaneously tried to get the judge to settle the case.
> 
> In the defense motion for judgment of acquittal, attorneys argued that the little-used statute known as seaman's manslaughter only applies to commercial vessels. Sheesley explained that because there were no paying customers and no commercial cargo when the Cimarron was sailing south in October 2015, it was considered a recreational or pleasure voyage. The U.S. Attorney's office opposed that motion but the judge ruled in Smith's favor, ending the case before it went to a jury.
> 
> Gretchen Shappert, U.S. Attorney for the Virgin Islands, declined in an email to comment on the decision.
> 
> Smith, who faced up to 10 years in prison if convicted, was released from custody after court on Wednesday. Sheesley said he expected his client to return as soon as possible to his sailboat.
> 
> Smith did not return a call for comment Wednesday, but he posted one word on his Facebook page shortly after the decision, "FREEDOM," with eight exclamation points.
> 
> Pontious' parents, who attended the trial, filed a wrongful death lawsuit against Smith in October, prior to his arrest. That case was later withdrawn.
> 
> This story will be updated.


----------



## MarkofSeaLife

Short of detail...



> In the defense motion for judgment of acquittal, attorneys argued that the little-used statute known as seaman's manslaughter only applies to commercial vessels. Sheesley explained that because there were no paying customers and no commercial cargo when the Cimarron was sailing south in October 2015, it was considered a recreational or pleasure voyage. The U.S. Attorney's office opposed that motion but the judge ruled in Smith's favor, ending the case before it went to a jury.


But we did cover this point in the thread. I think most of us thought that as it was a charter boat moving between seasonal charter operations is was still a commercial vessel.

Very unusual.

Mark


----------



## boatsurgeon

Fastinating!

So there is no law requiring a recreational vessel skipper to take reasonable steps to ensure the safety of the vessel and crew?


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## RegisteredUser

Picnic Pot-Luck has been canceled.
Dunno if rope can be returned, but will ask.

Look for a new lamb.....


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## zedboy

MarkofSeaLife said:


> But we did cover this point in the thread. I think most of us thought that as it was a charter boat moving between seasonal charter operations is was still a commercial vessel.


I pointed out that in my (extremely deficient) case law search, nothing came up about using Seaman's Manslaughter against a captain not actively making a buck.

There is a big difference in obligation/duty of care when you're being paid to do your job, and this statute is already legally sui generis in how far it stretches obligation. So presumably the burden was already on the prosecution to show that it could be applied to this kind of voyage (a little dicey, because the boat does operate under commercial charter sometimes and the captain is a licensed professional).


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## zedboy

For the experts: presumably the prosecution can appeal?

Unless they know they've just stepped off the boat without a PFD - i.e. there is no precedent to apply seaman's manslaughter where the captain isn't being paid and the crew/passengers aren't either paid crew or paying passengers?


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## RegisteredUser

The family did this deed.
Do they want to cash in more chips.....take it further


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## nolatom

Generally the prosecution can't appeal a criminal acquittal or dismissal especially after trial has begun, it's the double-jeopardy clause in the Constitution we thank for that..

And a repositioning trip for a boat used for charter work at the next destination, where the delivery crew volunteer and are neither paying (passengers) nor paid (Jones Act-type crew) in that particular instance, is probably a recreational voyage at least for purposes of criminal laws, which are typically construed narrowly rather than broadly.


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## Don L

RegisteredUser said:


> Picnic Pot-Luck has been canceled.
> Dunno if rope can be returned, but will ask.
> 
> Look for a new lamb.....


rumor is the rope can be traded in for winch handles :grin


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## Minnewaska

nolatom said:


> Generally the prosecution can't appeal a criminal acquittal or dismissal especially after trial has begun, it's the double-jeopardy clause in the Constitution we thank for that.....


The defendant was certainly in jeopardy, which would suggest it's done. The interesting twist is that the judge found that the statute didn't apply to the non-commercial operation. Perhaps the Prosecution was that stupid, but what if this is grey. The defendant didn't win on his merits, the charges were dismissed because of this interpretation. Can that interpretation be appealed?


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## Sailormon6

In this case that raises a very interesting and unusual question. Ordinarily a judge's decision dismissing a case prior to trial can be appealed by the prosecution. If the dismissal is reversed on appeal, the case can be remanded to the trial court and a trial held.

In a criminal case, jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, also called a bench trial, jeopardy attaches when the first witness is sworn. Thus, if the court had ruled on the defendant's motion before the trial began, the prosecutor could have appealed an adverse ruling. But, since the motion was filed after the trial had begun, and after jeopardy attached, the prosecutor can't appeal the decision.

I retired about 18 years ago, and that's the way I remember it, but I'm open to having my memory refreshed.

The question in my mind is, did the defense brilliantly plan it that way, or did he do it that way by pure dumb luck? It cost the client more in legal fees, but when the case was dismissed, the case was over, once and for all. No appeals, even if the judge's decision was clearly erroneous.


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## RegisteredUser

Minnewaska said:


> The defendant was certainly in jeopardy, which would suggest it's done. The interesting twist is that the judge found that the statute didn't apply to the non-commercial operation. Perhaps the Prosecution was that stupid, but what if this is grey. The defendant didn't win on his merits, the charges were dismissed because of this interpretation. Can that interpretation be appealed?


Would you like to see it appealed?


----------



## OldEagle

I'm not a lawyer, so this is a question, not an opinion...

What's the basis of the judge's decision to dismiss; i.e.,why is the application of the statute limited to commercial vessels?
Being a non lawyer I would think the possibilities are the language of the statute, regulation based on the statute, case law involving the statute, or the judge's untethered (not a legal term...) decision.

It's clearly not the statutory language:


> 18 U.S. Code § 1115 - Misconduct or neglect of ship officers
> 
> Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
> When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.


"Any vessel", without subsequent identified exceptions, seems pretty inclusive to me. So what's the basis of the judge's decision?


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## Minnewaska

RegisteredUser said:


> Would you like to see it appealed?


I have no dog in that hunt. I've been interested in the merits of the law and the discussion on right from wrong, given reported circumstances. At the least, there was also some reflection on how one may stay below the radar, which clearly includes making some effort to recover a MOB.


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## hpeer

This is GREAT NEWS for all us recreational boaters. It adds a second case of precedent that this statute relates only to Commercial operations. 

I’m not against having a manslaughter statute, but it should be one that is consistent with all other manslaughter statutes, not some extremely low and ill defined meaning. 

The commercial application should also be rewritten. But the commercial operators have the buck to right this, not so much we recreational guys. 

While I think the Capt made mistakes I think there were strong mitigating circumstances. I know others disagree. 

An adage I came up with during my divorce hearings, which I believe applies here is:
“You may go to court expecting justice, what you will get is a decision.”


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## Sailormon6

OldEagle said:


> I'm not a lawyer, so this is a question, not an opinion...
> 
> What's the basis of the judge's decision to dismiss; i.e.,why is the application of the statute limited to commercial vessels?


The only way to answer that question is to read the court's decision. I doubt that it's published unless a news reporter published it.


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## Sailormon6

Minnewaska said:


> I have no dog in that hunt. I've been interested in the merits of the law and the discussion on right from wrong, given reported circumstances. At the least, there was also some reflection on how one may stay below the radar, which clearly includes making some effort to recover a MOB.


The thing that makes this case different from the ordinary MOB situation is that, here, the MOB tried to kill the captain before he jumped in the water.

This is a case of damned if you do - damned if you don't.

When the captain didn't go back, he got prosecuted for Seaman's Manslaughter. If he had gone back and tossed him a life ring, but not brought him on board, he'd have been accused of torturing him and, if he died, murdering him by hypothermia. If he waited until he thought Pontious was weakened, and then brought him aboard, maybe Pontious was weak, and maybe he was playing possum. In short, there was no safe, clear, morally and legally acceptable course for the captain to follow to deal with the situation. He had to ad lib a solution. Every law should be crafted so that it doesn't put people who are subject to the law on the horns of a dilemma.


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## Sal Paradise

If that is the logic, I agree. But it seems he got off on a technicality. 

Anyone else think it's weird that you could leave a guy to drown and as long as it is not a commercial vessel, you get off scot free?? Legally. how does that ever make sense? Shouldn't it be manslaughter?


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## RegisteredUser

Sal Paradise said:


> Anyone else think it's weird that you can leave a guy to drown and as long as it is not a commercial vessel, you get off scot free?? Legally. how does that ever make sense? Shouldn't it be manslaughter?


Do you hope there is an appeal?


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## hpeer

Sal Paradise said:


> If that is the logic, I agree. But it seems he got off on a technicality.
> 
> Anyone else think it's weird that you could leave a guy to drown and as long as it is not a commercial vessel, you get off scot free?? Legally. how does that ever make sense? Shouldn't it be manslaughter?


You go to court seeking justice, you get an answer.

The law makes its own sense. In the context of the law this is the sense it makes. This is how it's interpreted and it's not the first time. Should have never been prosecuted in the first place.

The law makes no "common sense" by so loosely defining the crime.

Should there be a recreational manslaughter statute? Maybe, but if there is it should have a sensibly definable definition of "negligence." And if it did there is an fair/good chance the Capt would have been found innocent because of the mitigating circumstances; the jumpers own actions that contributed to the event. We will never know.

But I'm no lawyer and these are just my opinions, before I speak too far above my pay grade.


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## Sailormon6

Sal Paradise said:


> If that is the logic, I agree. But it seems he got off on a technicality.
> 
> Anyone else think it's weird that you could leave a guy to drown and as long as it is not a commercial vessel, you get off scot free?? Legally. how does that ever make sense? Shouldn't it be manslaughter?


Although the court said the Seaman's manslaughter law doesn't apply to a recreational skipper, that doesn't mean a recreational skipper can blithely let a MOB die. You can bet there's a criminal charge that applies if you cause the death of another without justification. I'm not an expert in maritime law, but obviously, neither is the US Attorney who filed this case. If he was, he wouldn't have filed this case under the wrong statute. Of course, you can also be held liable in a civil action for damages.

Until you have better guidance, the best course is to use your best judgment, understanding that, if someone dies, you'll have to defend your actions.


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## hpeer

And defend them to yourself if no one else. Our own conscious should prevent the majority of had actions. 

The law is the law, but our own human decency should generally guide us. 

But then again, to argue with myself, it doesn’t always which is why we have laws. For those bad actors who have no compunction about abuot humanity.


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## tempest

Interesting case! I learned alot. As I said it my 1st Post, it seemed like tough luck all around. One mistake, could ruin you. 
A life was lost, and another one almost ruined. The Captain dodged a bullet here. Thanks to those who posted their thoughtful opinions one way or the other. Thanks to Sailorman and the other attorneys who helped guide and shed light on the legal issues, very informative! 

Interesting the way it all played out. We did have that discussion regarding Commercial vs. Recreational. And, I too, now wonder whether the attorney's purposely waited until jeopardy attached to file the motion to dismiss, or if it was just the luck of the draw. 

I think I'll keep that spare winch handle close by from now on. ;-)


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## tempest

OldEagle said:


> I'm not a lawyer, so this is a question, not an opinion...
> 
> What's the basis of the judge's decision to dismiss; i.e.,why is the application of the statute limited to commercial vessels?
> Being a non lawyer I would think the possibilities are the language of the statute, regulation based on the statute, case law involving the statute, or the judge's untethered (not a legal term...) decision.
> 
> It's clearly not the statutory language:
> 
> "Any vessel", without subsequent identified exceptions, seems pretty inclusive to me. So what's the basis of the judge's decision?


I'm thinking that the qualifying word is " employed" but I'm not a lawyer either. ;-)


----------



## mstern

caberg said:


> When you're talking about a guy being detained on a small island away from his home while incurring huge legal expenses, and facing a felony charge and 10 years incarceration, I'd hope that it's possible to file a motion to dismiss on an issue like this as soon as the facts come to light in the case through discovery. Actually, I would think that both sides would want to get this issue resolved by the judge as early as possible to avoid unnecessary time and expense. But I come from the civil side of things where pretrial motions to dismiss and for summary judgment are very routine and far more common than trials.


I agree. By "day one", I meant the first day he could, not the first day of trial.


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## chef2sail

Minnewaska said:


> I have no dog in that hunt. I've been interested in the merits of the law and the discussion on right from wrong, given reported circumstances. At the least, there was also some reflection on how one may stay below the radar, which clearly includes making some effort to recover a MOB.


I am with Don. I don't think there is a single posted on here who would be ambivalent about saving a crew member who went overboard. Included in that would be holding station.

What you continue to hold strong to is giving no credence to the assult on the captain, the threat verbally to the crew. Maybe I am callus , or maybe my self preservation sense is stronger, but I would not bring on board someone who assulted me with the intent of harm, and threatened the crew physically who I had a duty to protect. Coupled that with the statements of his hallucinating and crazy threats I cant see brining him back into our midst. Especially when he committed suicide.

The judge used a technicality to decide to throw it out. But it was more than that in his legally trained mind. He probably took into account the flimsy unsubstantiated evidence the prosecutor had. The case simply wasn't strong enough.

So you were wrong in your disposition of the case, for whatever excuse you choose to justify it. Right about the Bounty ( you brought it up ) , wrong about Captain Smith. Understandable as no one truly understood all the particulars except the judge reallly.

No one's appealing this.....it took to years to figure out how to bring the charges from a antiquated ambiguous law.

Lots of great info on the thread. May make some think as little more in depth on getting potential as crew on passage. Since that probably only includes as small, amount of us, extrapolate that a little.

Many on here crew for others. It also shows the importance of vetting the Captain.

Thanks again for the knowledgeable legal posters for keeping the thread focused on the true legal matters preventing the armchair lawyers ( including me)from spinning this totally beyond the norms.

On to the next hot topic &#55357;&#56833;&#55357;&#56833;&#55357;&#56833;&#55357;&#56833;&#55357;&#56835; GO EAGLES &#55358;&#56709;&#55358;&#56709;&#55358;&#56709;&#55358;&#56709;&#55358;&#56709;


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## outbound

But it’s disappointing that the case was never tried on its merits.

Still, have no idea if this captain would have been deemed justified or not in his actions. Still don’t know if this captain walked after acting in an illegal fashion or met his obligations as a captain. Only know due to a technicality the merits of the case and it’s details never came to light.
Many thoughtful posts. Does get you thinking about your responsibilities when you act as captain. Personally makes me think about the need to monitor more closely and have less reluctance to seek outside help or change my plans so things don’t rise to this state. 
Continue to view the deceased as a sick irrational person deserving only pity with his getting on the boat being the first irrational act. Still wonder if there was anything the captain could have done to have prevented his death. Know that question probably has nothing to do with the legalities of the case but it’s disappointing any help in answering that question won’t be forthcoming.


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## Minnewaska

Sailormon6 said:


> The thing that makes this case different from the ordinary MOB situation is that, here, the MOB tried to kill the captain before he jumped in the water.


Not entirely what we read. According to the limited testimony at the beginning of the trial, the Captain threatened the victim's life first. He said he would slit his throat, prior to the victim becoming physically violent.



> If he had gone back and tossed him a life ring, but not brought him on board, he'd have been accused of torturing him and, if he died, murdering him by hypothermia.


This raw speculation, of course, we'll never know.

In the end, the conclusion was not on the merits of the case, rather on the applicability of this law. Regardless where one stands on the analysis of the merits of the Captain's actions, that hasn't been decided by the court.

As I've said, as well as many/most others, I'll go back and look, if ever in this situation. I think it could have kept him from house arrest and financial hardship, which perhaps was all the punishment the US Attorney thought they could inflict in the first place. Sounds like we'll never know.


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## Minnewaska

Sailormon6 said:


> ...If he was....


Pretty sure the US Attorney in question is a woman.


----------



## caberg

I said early in this thread (post #51) that this type of alleged negligent conduct should give rise to civil liability, not felony charges.



caberg said:


> I think the "Seaman's Manslaughter Statute" 18 U.S.C. § 1115 is a bad outdated law. This type of situation -- involving just simple ordinary negligence -- should give rise to civil liability and penalties, not a felony conviction with up to 10 years in prison. I don't see the benefit to anyone of criminalizing this type of negligent conduct.


There are other situations in which criminalizing simple negligence makes sense (an airline pilot with hundreds of lives under his or her care, for example), but a regular dude on his sailboat with some friends or unpaid crew, no.


----------



## outbound

I know from prior posts that some feel inspite of the crew being apparently totally incompetent his actions relieve the captain from any responsibility. So the crew’s death is on him alone. He attacked me so there’s no way I’m helping him. 
Some how I feel life is precious. I’ve cared for truly reprehensible people in my time. I still gave my best effort. My mandate (just like a captain) was to preserve life. I feel unfortunately a criminal penalty with clearly delineated responsibilities for the captains of all vessels should be in place. It’s sad that such responsibilities need to be spelled out so both professional and amateur crew can have some level of comfort that their captain will do what he can to ensure they will return to land alive.


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## Don L

It's sad to me that now that this is over some here are still twisting the story facts (those as reported and testified to) to support their version.

For me I learned something. If you want to hit a crazy person that had just been chocking you in the back of the head with a winch handle you need to be fast, as they might climb up on the lifelines and jump over before you can do it.


----------



## caberg

outbound said:


> Some how I feel life is precious. I've cared for truly reprehensible people in my time. I still gave my best effort. My mandate (just like a captain) was to preserve life. I feel unfortunately a criminal penalty with clearly delineated responsibilities for the captains of all vessels should be in place.


I understand you are a doctor. Do you feel that if you provided negligent medical care to a patient resulting in the patient's death, that you should face a felony charge with up to 10 years in prison?

Most doctors I deal with would argue for more limits on civil liability for medical malpractice (i.e., tort reform), not felony criminal charges.

Personally, like with the case of the recreational boat owner/operator, I feel that civil liability in the form of a wrongful death claim and monetary compensation, and civil penalties against any applicable licenses, is the best way to deal with simple negligence in both contexts.


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## MarkofSeaLife

outbound said:


> I know from prior posts that some feel inspite of the crew being apparently totally incompetent his actions relieve the captain from any responsibility. So the crew's death is on him alone. He attacked me so there's no way I'm helping him.
> Some how I feel life is precious. I've cared for truly reprehensible people in my time. I still gave my best effort. .


I agree.

In 2018 I had 3 friends attempt suicide due to mental illnesses.
All 3 lashed out at those that are closest to them.
If any had responded to them with the violence or callous disregard then I think each of those 3 would have killed themselves.
All in just one year.

One of the guys who became most reprehensible to his family and friends and finally couldn't work and was considering a gun in his mouth kept on saying: "Its in my head. I have pain in my head its like someone in there!"
Psychologists and Psychiatrists couldn't work it... out until someone did a simple X-ray of his brain.
There it was... a brain tumour, a big fat one squishing his brain into his skull. He showed me the XRay and I immediately saw one thing: It was clearly operable. There was a distinct line around it between the tumor and the brain.
It was such an easy operation a 1st year med student did it after a boozy Friday lunch.
Within days my mate was 100%. No more aggression. Concentration back to 100% Creativity back to 100%. He jumped on his big motorcycle and did a champions lap of his state.

The other 2 are still alive too.

But the attitude by some in this thread is they should have all been killed off.

Mark


----------



## outbound

I apologize I don’t understand what “simple “ negligence means. Please explain.

I served as the chairman of the credential committee for a hospital for many years. Impaired and as a result negligent physicians and surgeons came to my awareness. They were disciplined or rehabilitated or both. However, had one occasion of a case where the involved surgeon who used their position to do harm for personal motivations. Beyond the involvement of our committee and the states boards and programs I recall criminal charges were raised. Our deliberations and minutes are protected so we were not involved. I won’t discuss this even without identifiers but will say I thought it justified at the time. Also had multiple occasions where diversion of controlled substances were involved. Again beyond disciplinary action by us and the board of medicine criminal charges ensued. 
You’re right people screw up from ignorance, stress, situations beyond their capabilities. You’re right it’s inappropriate to pursue that as a criminal event. One could argue ignorance is a different matter and you shouldn’t captain without some basic knowledge and follow it. Put that thorny issue aside for now. 
But continue to believe there should be some substrate that prevents death due to callousness, malice or just not caring for the individual. Hopefully better minds than mine can come up with a definition of what defines “criminal “ negligence. Most states have a statute to deal with man slaughter secondary to drunkenness or drug impairment. 
Don’t see how it matters if the outcome is one death or many. Do see a difference if there’s a contractional obligation between captain and passengers .
Understand there are many complexities I haven’t entertained and possible unintended consequences if a statute is poorly done. I have no formal education in the law beyond a few courses concerning medmal, expert witness, disability and competence determination issues. None relevant to this issue. So appeal to you. Is it feasible to provide such a statute?


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## caberg

"Simple negligence" (aka "ordinary negligence") just means regular old negligence without something more. The next step up on the scale of negligence would involve terms like "gross negligence" or "recklessness".

When a surgeon nicks an artery and causes the patient to bleed out, or sews the guy back up with a sponge inside, or prescribes the wrong medication.... These are all errors that typically fall under the umbrella of negligence and give rise to civil liability.

In the case of the captain, the question was whether he was negligent or not. There was no argument in the case that his conduct (or omissions) were something more than negligence (i.e., grossly negligent or reckless). 

Ultimately, the statute was held to not apply to him, and to me, that is the right result. But that does not mean that he should escape all liability. Again, like the physician who negligently injures a patient, I feel that civil liability is an adequate and appropriate remedy for the circumstances of this case.


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## Sailormon6

Minnewaska said:


> Pretty sure the US Attorney in question is a woman.


Any time you "catch" me inaccurately stating an unimportant fact in an online chat, feel free to correct me.

Some people might think that's just quibbling, but people want to know the exact nature of the US Attorney's genitalia.


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## Sailormon6

Minnewaska said:


> Not entirely what we read. According to the limited testimony at the beginning of the trial, the Captain threatened the victim's life first. He said he would slit his throat, prior to the victim becoming physically violent.


 No experienced prosecutor would consider that a crime, or a justification for Pontious to physically beat the captain and try to choke the life out of him, and it certainly wouldn't justify Pontious in threatening his fellow crewman, who was just an innocent bystander. Unless the captain had the present ability to carry it out, such as by brandishing a knife, the captain's words would be regarded merely as a figure of speech, not as a serious threat. The captain was simply instructing Pontious to keep his hands off important equipment, and using strong terms to try to penetrate the fog and get through to him. But you don't have to be an "experienced prosecutor" to understand that. Most ordinary citizens would be able to figure that out.


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## hpeer

outbound said:


> .... It's sad that such responsibilities need to be spelled out so both professional and amateur crew can have some level of comfort that their captain will do what he can to ensure they will return to land alive.


First there should be a manslaughter law in line with all other similar statutes. No arguing that.

But will it change people's actions? Will it assure competent Captain and crew? Not likely. This is one incident in how many years? What percent of sailors are aware of this case? How many of us will remeber this case in 3 years?

It should exist, the odds of it doing something to save lives in a recreational setting are small.

Now for large commercial operators? That's why it was enacted, because some folks value their dollars over others lives. Those guys have lawyers who will remind them of this liability.


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## mstern

outbound said:


> But continue to believe there should be some substrate that prevents death due to callousness, malice or just not caring for the individual. Hopefully better minds than mine can come up with a definition of what defines "criminal " negligence. Is it feasible to provide such a statute?


Yes. Every state already has. They are commonly called "criminally negligent homicide." Under NY law (where I was a prosecutor back in the late '80's), "a person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person." As has been noted a zillion times in this thread, the punishment for crimes of this level is no where near as strict as the Seaman's law. Under NY law, criminally negligent homicide is a Class E felony, which means the max jail sentence is 4 years.

Why wasn't he charged with something like that here? Simple. The crime happened on the high seas in international waters. State criminal statutes do no apply outside their jurisdictions. The only option was to try the captain under federal law.


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## outbound

So MS do you feel such a statue should exist for the “high seas” or is one in place already?


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## mstern

outbound said:


> So MS do you feel such a statue should exist for the "high seas" or is one in place already?


Like any good lawyer, I have more than one answer...

There is one in place now (obviously), but I think I've made my opinion on the current statute know here (spoiler alert: I dislike it. It is poorly written, based on common negligence and has an inappropriate penalty).

Generally speaking, I am not in favor of the federal government expanding its criminal law jurisdiction. For the most part, I believe that criminal law should be left to the states. Federal criminal law should be limited to crimes that cross state boundaries or that are affect multiple states.

Crimes on the high seas are really one of the few times I think it would be appropriate for the federal government to step in, as the states cannot regulate conduct outside of their boundaries. I would not be opposed to a criminal negligence statute for federally-licensed captains operating in federally regulated or international waters. For a conviction, the government would have to prove beyond a reasonable doubt that a captain's criminally negligent conduct was the cause of a serious injury or the death of passenger or crew.

Mind you, I'm not advocating for such a law; I don't think it's necessary. I do think it is necessary to repeal that piece of dreck law that is on the books now.


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## nolatom

Here's the (likely) final word from the V.I. newspaper:


St. John captain acquitted of manslaughter 

By SUZANNE CARLSON Daily News Staff 



St. John charter Capt. Richard Smith was acquitted of manslaughter Wednesday after a federal judge found that prosecutors had failed to produce evidence sufficient to support the criminal charge against him, abruptly ending his jury trial after two days of emotional testimony.


The family of the deceased, David Pontious, were visibly devastated by U.S. District Judge Curtis Gomez’s decision, and his mother sobbed as she left the courtroom. The ruling is not subject to appeal and the statute of limitations for a civil lawsuit has expired.


“This is not an easy decision,” Gomez said. “It is not a light thing to do, but under the circumstance, I think the weight of the law doesn’t support the result the government wants.”


Smith, 65, owner of the 43-foot sailing vessel Cimarron, was charged Nov. 2 under what federal prosecutors described as the “Seaman’s Manslaughter Statute” in connection with the Oct. 25, 2015, drowning of Pontious, 54, of Beaufort, S.C., a crew member who was helping transport the Cimarron from North Carolina to St. John.


Two other crew members aboard the Cimarron at the time, Jacob Pepper and Heather Morningstar, testified that Pontious attacked Smith in the midst of a psychotic delusion before jumping overboard approximately 300 miles offshore.


Prosecutors Daniel Huston and Sigrid Tejo-Sprotte argued that Smith was criminally liable for Pontious’s death because he did not stop the Cimarron to search for Pontious.


However, defense attorneys David Cattie and Michael Sheesley argued that Pontious’ mutinous behavior posed a threat to the remaining crew.


“Obviously I’m pleased, I think it was the correct result. Rick and myself, we feel bad for the Pontious family — you never want to have somebody lose a life, which occurred — but I just don’t think Rick did anything criminal, I don’t think he did anything civilly wrong. It was just a terrible circumstance,” Sheesley said.


Cattie agreed that the situation was a tragic anomaly that did not rise to the level of a criminal offense.


“Rick had to make an almost impossible decision,” Cattie said. “You heard what happened on that boat, that’s a nightmare scenario for a captain. Rick certainly had no ill will toward David and didn’t want him to die.”


U.S. Attorney for the Virgin Islands Gretchen Shappert declined to comment on the case.


Gomez’s decision came after defense attorneys filed a motion for acquittal late Tuesday, arguing that prosecutors had charged Smith under a statute that only applies to vessels engaged in commercial activity.


While Smith used the Cimarron for paid charters at other times, Gomez found that the voyage during which Pontious died did not involve commerce because none of the individuals aboard had paid for the trip and were not compensated as employees.


Pepper testified that he approached Smith about sailing with him to gain offshore experience, and Morningstar said she went on the trip “to do something completely different.”


A third crew member, Candace Martin, also said she went on the trip with Smith because she loved offshore sailing. Martin was unable to complete the journey so she posted an online ad with the Beaufort Yacht Club, to which Pontious responded. Martin left the ship in North Carolina and Pontious took her place.


Crew members testified that Pontious became seasick and severely dehydrated, but Morningstar said he was able to work his scheduled watch at the helm Saturday, ate breakfast and dinner, and his condition seemed to be improving.


The evening of Saturday, Oct. 24, Morningstar testified that Pontious slipped into a delusional state and became progressively more agitated.


“We thought he was kind of turning a corner at that point,” Morningstar said. “Saturday night was when everything started to change.”


Pontious believed the crew had kidnapped him to extort ransom money from his father, and hallucinated a door or portal in the sky, through which he believed was a room full of electronics that would help him get back to reality, according to trial testimony.


When Smith refused to take him to the portal, Pontious punched and choked him, attempting to wrest control of the helm.


Pontius announced to Smith and the other crew that “if you won’t take me there, I’ll go myself,” and jumped overboard at about 1:30 a.m. Sunday morning, according to trial testimony.


He was never seen again.


It’s unclear why Pontious had a psychotic break — his brother Andrew and others indicated that Pontious did not have a history of mental illness and his behavior on board the Cimarron was completely out of character — and Cattie said the reasons for his death will likely remain a mystery.


“Whatever the reason is, his behavior was altered and the result was fatal and it’s a tragedy,” Cattie said.


Prosecutors highlighted the fact that Smith did not deploy an EPIRB remote signaling device, throw a life ring, or stop to engage in a search for Pontious. Smith made contact via radio with a weather router on the morning of Monday, Oct. 26, who summoned the U.S. Coast Guard, which flew a C-130 plane over the Cimarron to establish radio contact and begin the search for Pontious.


Smith did attempt to issue a mayday call via radio after Pontious went overboard, to no avail, and Cattie said his decision not to stop sailing after the chaotic, violent episode was indicative of his concern for his remaining crew.


“He had to make a decision I don’t ever want to have to make,” Cattie said.


Sheesley said that had Pontious not jumped overboard when he did, it’s possible the situation could have resulted in additional deaths.


“Rick had a tough choice to make, he made the right one. It ended up saving Heather and Jacob’s life,” Sheesley said.


In terms of the government’s prosecution, Sheesley said prosecutors expended a “ridiculous” amount of taxpayer money to hire three experts, retain two case agents, and fly numerous witnesses to the territory to testify at trial — all for a case he believes never should have been brought in the first place.


“They have an obligation to know the law, and the law just did not fit the facts,” Sheesley said.


While defense attorneys routinely file a motion for acquittal when prosecutors have finished presenting witnesses, “they are denied almost as a matter of course,” Sheesley said.


The fact that Gomez granted the motion in this case speaks to prosecutors’ lack of evidence, Sheesley said.


“This was part of our case strategy, we knew for months that this law was not applicable to this factual situation and we tailored our examination and evidence to support it,” Sheesley said.


Smith had been facing a possible 10-year prison sentence, and even though he is now officially a free man, his life has forever been altered by the trial, Sheesley said.


“Emotionally, this is massively taxing. It’s essentially bankrupted him,” Sheesley said. “Like any criminal prosecution it has a huge effect on somebody’s life, even when they’re found not guilty.”



— Contact Suzanne Carlson at 340-714-9122 or email 

unquote


So, we won't get to know how the jury would have sorted all this out. They, unlike us, would have heard and seen the witnesses and judged their credibility accordingly. That aside, I expect the jury's discussions would have been very much like ours here, with the overarching principle being proof of guilt beyond reasonable doubt, which is an intentionally high hurdle.

I hadn't been aware this was an unpaid crew, who went along because they liked offshore sailing. That being so, I believe Judge Gomez got it right, and the US Attorney got it wrong. Could have been prosecuted under the federal manslaughter statute, one would think. The Seaman's Manslaughter Statute originated from catastrophic boiler explosions and fires on passenger and cargo boats and ships in the mid-1800s, culminating with a disastrous fire, sinking, and loss of life on a New York excursion boat in the East River in 1904.

Lurking behind the decision yesterday may be the judge's recognition that the evidence wasn't that unequivocal, and that the Coast Guard, which normally would be the ones referring a criminal prosecution to the DOJ, did not find probable cause and hence did not refer the case onward. The defense wanted the jury to consider the Coast Guard's informal report, which opined that the captain handled it about as well as was possible under the difficult circumstances, while the prosecution did not want the jury to see it at all.


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## Sailormon6

nolatom said:


> Could have been prosecuted under the *federal manslaughter statute*, one would think.


I think nolatom is right. The federal manslaughter statute is excerpted at the end of this post.

If the case had been charged under this statute, I think it would have at least proceeded to a jury decision.

Anticipating the next question, "Can a new charge be filed under this section?" Probably not. Double jeopardy prohibits not only the re-filing of a new charge under the same statute, but it also prohibits the filing of a new charge under any lesser included offense. I think a court would conclude that this is a lesser included offense of the Seaman's Manslaughter offense, and a new charge under this section would be barred by double jeopardy. Besides, the US Attorney would not be anxious to roll the dice again on the case after having suffered such a humiliating defeat.

18 U.S. Code § 1112 - Manslaughter

(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary-Upon a sudden quarrel or heat of passion.

Involuntary-In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;

Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.


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## Don L

MarkofSeaLife said:


> But the attitude by some in this thread is they should have all been killed off.


In case that aimed at me and my "hit them in the head with a winch handle" position:

It ISN'T my position that the mentally ill or crazy people be killed off!!!

It IS my position that once they become dangerous to others that it is not acceptable to place others at risk.

You guys can pick it apart all you with "could of" and "what abouts", but to me it is not reasonable to place yourself or others in danger to protect someone from their own actions.


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## zedboy

Sailormon6 said:


> [...] Besides, the US Attorney would not be anxious to roll the dice again on the case after having suffered such a humiliating defeat.
> 
> 18 U.S. Code § 1112 - Manslaughter
> 
> (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
> Voluntary-Upon a sudden quarrel or heat of passion.
> 
> Involuntary-In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
> 
> (b) Within the special maritime and territorial jurisdiction of the United States,
> Whoever is guilty of voluntary manslaughter, shall be fined under this title or imprisoned not more than 15 years, or both;
> 
> Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than 8 years, or both.


Is leaving someone to die ever manslaughter?


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## outbound

That’s where further information would help. I still can’t see how a man in the water presents a risk to anyone but himself. You’re right none of us know the details so it’s all speculation. But do you agree you could deploy a MOM, find him (presuming he didn’t go straight down) pull him near with a life sling or similar device , reassess and then decide to get him up or wait until tired enough to haul up. Of course you would restrain him until you got him off the boat ASAP. Even if he’s a big fit guy and you’re a petite lady he’s not getting on a boat without your consent. Maybe I got it all wrong if so please explain. 
Do agree recovery of a mob is no walk in the park. Think there should be a very high bar or no bar for any sanctions for unsuccessful attempts. Would hope folks gave it their best attempt. 

Find what the lawyers said somewhat scary for both captains and crew. Be nice if you knew what standard you’re held to as captain and what to expect as crew. Appreciate their patience in putting up with me. Like to think with a bit of common sense this is a situation I’ll never face but that maybe just hubris on my part.


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## Minnewaska

Sailormon6 said:


> Any time you "catch" me inaccurately stating an unimportant fact in an online chat, feel free to correct me.
> 
> Some people might think that's just quibbling, but people want to know the exact nature of the US Attorney's genitalia.


You clearly misunderstood the motivation behind my comment, but your attitude makes it difficult to apologize or feel the need to explain.

As you seem to have a real axe to grind, with my participation, I invite you to not respond to it. To that extent, I'll let yours stand without comment as well. I tried it once. Your call.


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## Sailormon6

OB, If a gunman came into your emergency room bleeding profusely and in grave danger of bleeding to death, and he began shooting people, you wouldn't disregard the gunfire and rush to his side to give him life saving care. You'd take cover, like everyone else, because the first instinct of every living creature, as far as I know, is self preservation. If he bled to death while you were hiding from his bullets, you wouldn't feel morally or legally responsible for his death. Your duty to help suffering humanity doesn't require you to sacrifice your own life to do so. I'm guessing that your oath doesn't say you can't, under any circumstances, let a patient bleed to death. It allows you to first see to your own survival, and then, if there's still time, to attend to the shooter. That's what this case is all about. The captain was confronted with life and death choices, not only for Pontious, but for himself and his two crew. He made a choice. One died and three lived. It's unclear whether the one died by suicide or because he wasn't pulled from the water.

A crime of negligence is a crime in which the accused's judgment is called into question. He made a decision that resulted in a person's death. A negligence case asks the question, "Was his judgment as sound as we might realistically expect of any average person under the same or similar circumstances?"

When a negligence case goes to a jury, the jurors, in the privacy of their own minds, all think of themselves as being that "average person," and they ask themselves, "What would I have done in that situation?" If they believe that his decision was reasonable after considering all the exigencies of the moment, they'll probably acquit him. They aren't likely to expect the kind of perfect judgment that can only be achieved on the Monday morning after the event.

In a jury trial, the jurors try to balance all the competing interests. I think many of you are putting too much emphasis on the sanctity of one life and too little on the sanctity of the other three, and you're putting too little emphasis on all the exigencies of the situation.

The Coast Guard investigator, who is trained and experienced in dealing with these issues, thought the captain had done as well as could be reasonably expected under the circumstances. In his opinion, the captain committed no offense, but if the captain had chosen to bring the man aboard, that would also be acceptable.

But consider this. If he brought the man aboard and the man broke free of his bonds and killed the crew, would the captain be negligent in the death of crew for having knowingly brought a homicidal maniac on board? Suppose Pontious died while bound up. Would the captain be negligent by keeping him in bonds? The "what ifs" are endless.


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## Sailormon6

zedboy said:


> Is leaving someone to die ever manslaughter?


Dunno. This isn't just any old human being. This is a human being the captain had a limited duty to protect. Maybe some future judge will have to answer that question.


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## outbound

When on a surgical rotation in med school was at the E.D. bedside of a stabbing victim. A gang member. Rival gang member came in and shot him. Cops were assigned to that E.D. They subdued shooter and in process injured him. Blunt trauma and dislocations. The shooter was treated as well. All parties were what ER docs call gomers. Low fliers. “Get Out of My Emergency Room.” That has no impact on duty to treat. 
Still, don’t know the details in this case. Still, don’t see the deceased as a threat once in the water. Maybe I’m wicked out of shape but chatted with folks doing the rya program and have done sas. If you’re in the water for awhile and trying to keep your head up seriously doubt you’re in any shape to strangle a chicken let alone present a real danger. Don’t find that argument holds up. You’re on the boat. He’s in the water. I would think you’re in control. If you can’t bind a person and monitor to determine they remain restrained you don’t belong on a boat. Stick them in a sleeping bag and duck tape them in. Or use a few sailties if you don’t have a sleeping bag. If he dies don’t see negligence being in play and would doubt a jury would either but defer to your greater experience. Still, only agree the “what ifs” are endless .


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## outbound

BTW I scrambled on the floor to get away from the shooter. Even though there was only one shot didn’t peak until the all safe was called. Now a days believe lots of big city ERs have metal detectors and much more security. 
Agree you have the first obligation to your safety, then others then the perp. Even if the perp is in an irrational state for any reason. But can’t get my head around your position. Sorry.


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## Minnesail

Also, despite the title of this thread, let's quit calling it a suicide.

Pontious did not commit suicide. He was delusional and was doing what he thought was necessary to save himself, the very opposite of suicide.

Although perhaps that doesn't matter, sine I believe people who attempt suicide should also be helped as most think differently later.


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## outbound

Minnie agree with your sentiment but coming increasingly aware what’s legal or illegal isn’t equivalent to what you or I might think is right or wrong. We’ve been trying to get custody of my wife’s grandson for several years now. It’s pretty obvious what common sense, DCF and the literature says is in the child’s best interest but that isn’t sufficient for the court to act. Have had the same experience when serving as an expert witness. Amazed at times with the outcomes. However, when you do the equivalent of a post mortum with an attorney they make a cogent argument for why things go the way they go so you have to accept that and the outcome. They can even convince you that they agree justice wasn’t done but the system functioned well. 
Also think we all (self included) misspeak at times when shooting the breeze on this site. I know I’ve done it time to time. Have some posts I truly regret.I was taken aback by some of posts by people I think are good souls. It’s hard to back down and hard to stand back so would cut them slack.


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## OldEagle

Back in post #705 I asked the question of what the legal basis was for the judge's dismissal of charges. If this report: https://www.pressherald.com/2019/01/09/camden-charter-boat-acquitted-in-seamans-manslaughter-case/ is to be believed, the answer is case law


> The motion cited a case from 1974 in which a captain was acquitted in the deaths of two crew members during a voyage from Connecticut to Florida that was deemed non-commercial and therefore not subject to the seaman's manslaughter statute.


If this is true, I'm astounded that a US attorney's office would have brought the charges. Maybe the lawyers here see it differently.


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## Sailormon6

outbound said:


> Minnie agree with your sentiment but coming increasingly aware *what's legal or illegal isn't equivalent to what you or I might think is right or wrong.*


 Exactly! Criminal laws don't necessarily reflect our individual sense of morality. They establish a society's bare minimum standards of behavior.


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## mstern

OldEagle said:


> Back in post #705 I asked the question of what the legal basis was for the judge's dismissal of charges. If this report: https://www.pressherald.com/2019/01/09/camden-charter-boat-acquitted-in-seamans-manslaughter-case/ is to be believed, the answer is case law
> If this is true, I'm astounded that a US attorney's office would have brought the charges. Maybe the lawyers here see it differently.


I'm not astounded or even surprised. Without looking at that 1974 case (and I'm not going to), it's impossible to know if the facts of that case are different enough from our case at hand to make it, as we used to say, "inapposite". In plain English: so different that the holding in the prior case doesn't apply. Or, it could be that the 1974 case was from a different jurisdiction than the one in question, which means that it is not mandatory for this court to follow it. Or it could be that the 1974 case was just so poorly reasoned that this prosecutor thought that he had a good chance of having this court not follow it. So no, this lawyer doesn't see anything terribly unusual about a prosecutor filing a case even though there is a precedent that is harmful.


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## outbound

Kind of think it’s not a minimal standard but rather what’s definable and actionable at the time the statute is passed has a lot to do with it. We may know what’s right or wrong but not have the forensic,discovery and enforcement tools to be able to concretely define this person did ....which is wrong and therefore is subject to .....penalty. 
You can even look at it from a philosophical point of view. Is right innate ( Rousseau/ Spinoza) or externally brought to bear (Hobbes). What’s disturbing to the laity like me to to become aware an unjust outcome which does not meet the minimal standard of that society but deemed legal. Or a perversity of that society (think Pol Pot, Hitler) where clearly reprehensible actions are considered legal and in fact those actions are encouraged by the law( think Buddhist actions against Muslims in Myanmar or Muslim against Christian in Egypt). No have no reassurance even in our country( internment of Japanese, the long March, strange fruit) the law is the minimal standard of the society. Think it’s a lot more complex than that. 
Have the liberatarian paranoia about the law which one of the thoughtful lawyers here expressed. He noted with any law there’s concern it will do more harm than good. See crafting good law and interpreting it to achieve justice as a difficult task. But in my ignorance see it as two different things.


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## hpeer

Outbound,

You bring up interesting philosophical questions that have been argued since man could argue. We each have our personal answer depending upon our culture and our own disposition. There is that old Supreme Court quote “I can’t define porn but I know it when I see it.” 

That’s why we need laws which define the unacceptable behavior in some reasonable fashion. The laws are defining societies minimum acceptable standards. For most of us most of the time simple common sense and manners suffice to keep us within bounds. 

When we go to court expecting something other than a decision based on these minimum standards we are often setting ourselves up for dissapointment. That’s why I say:

You go to court looking for justice, you get a decision.


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## MarkofSeaLife

hpeer said:


> That's why we need laws which define the unacceptable behavior in some reasonable fashion.


There maybe no law... but there must be a rule.

The US Navy in searching for the downed KC130 Tanker a few weeks ago kept searching for many days, until FAR after those people could have possibly survived.
They must have some rule, say, estimated maximum survival time x 2.

I will give you my newly formulated rule: Any Crew of mine going overboard will have me searching for them for Estimated Survival Time x 2... during which I will fire every EPIRB and call everyone on my sat phone till there is help in the search, no matter what.

If you get on my boat the only way off is the Gang Plank in a safe port.

I guarantee it!


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## Slayer

Sailormon6 said:


> Dunno. This isn't just any old human being. This is a human being the captain had a limited duty to protect. Maybe some future judge will have to answer that question.


This judge answered no.

http://www.pressure-drop.us/forums/content.php?8904-Charter-Captain-Sails-Free-After-Acquittal


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## Sailormon6

Slayer said:


> This judge answered no.
> 
> http://www.pressure-drop.us/forums/content.php?8904-Charter-Captain-Sails-Free-After-Acquittal


No he didn't. That decision pertained to the Seaman's Manslaughter Statute at 18 U.S.Code § *1115*. The above question relates to the Federal Manslaughter Statute at 18 U.S. Code § *1112*. Those are different laws, and the decision you cited has no applicability to the Federal Manslaughter Statute at 18 U.S. Code § *1112*.


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## SeaStar58

So basically acquitted, not because no wrong was done, but due to a legal technicality the judge had with the statute he was charged under.

This still does not make the entire event morally or ethically correct. How many times do we hear that even though it was wrong it was legal? Really way too many times.

Hard cases will likely be further em-brazened by this to keep on trucking without changing their ways while good captains who care for their people will become more cautious about the welfare of those they bring on-board.


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## mstern

SeaStar58 said:


> So basically acquitted, not because no wrong was done, but due to a legal technicality the judge had with the statute he was charged under.


Sorry, but this propensity to blame "legal technicalities" for the outcome here really grates my cookies.

These "technicalities" are not bugs in the system, they are a feature of the system. And if you ask me, they are the most important feature. They are limits on the almost unlimited power of the state to deprive anyone of the most precious asset we have: our freedom.

YOU think the Captain is a reprehensible human being who deserves to rot in jail; YOU think that the system failed here because he was not convicted. Well, what you or I individually think is irrelevant.

What matters is what the law says. And in this case, the law says that the Seaman's Manslaughter Statute doesn't apply. End of story. If you want it to apply, change the law. If you want a different law (and you can put me in this camp), write your Senator or Congressman (they've got lots of free time now) and get it changed.

This case wasn't dismissed because someone on the prosecution side made an innocent mistake; it was dismissed because he was being charged with a crime he didn't commit. I cannot really get my head around the fact that anyone would support a conviction of a man for a crime he didn't commit because they feel "well, what he did was awful, so he should be guilty of something!"

I rejoice that I live in a country where the state can't just gin up some charges against me and throw me in jail.


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## eherlihy

... So, would anyone here like to help Captain Smith bring his boat back to Maine?
just askin'...


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## SeaStar58

mstern said:


> Sorry, but this propensity to blame "legal technicalities" for the outcome here really grates my cookies.
> 
> These "technicalities" are not bugs in the system, they are a feature of the system. And if you ask me, they are the most important feature. They are limits on the almost unlimited power of the state to deprive anyone of the most precious asset we have: our freedom.
> 
> YOU think the Captain is a reprehensible human being who deserves to rot in jail; YOU think that the system failed here because he was not convicted. Well, what you or I individually think is irrelevant.
> 
> What matters is what the law says. And in this case, the law says that the Seaman's Manslaughter Statute doesn't apply. End of story. If you want it to apply, change the law. If you want a different law (and you can put me in this camp), write your Senator or Congressman (they've got lots of free time now) and get it changed.
> 
> This case wasn't dismissed because someone on the prosecution side made an innocent mistake; it was dismissed because he was being charged with a crime he didn't commit. I cannot really get my head around the fact that anyone would support a conviction of a man for a crime he didn't commit because they feel "well, what he did was awful, so he should be guilty of something!"
> 
> I rejoice that I live in a country where the state can't just gin up some charges against me and throw me in jail.


I think that the matter was not given the scrutiny that was warranted because of a technicality. The matter should have been opened up to review as a person died under highly questionable circumstances. Driving a man to insanity to the end that he jumped overboard and died potentially because you just shrugged off days of warnings and then just assumed that he was dead, sailed off and made jokes about it afterwards such as the offer to throw out a life ring a day later is just so unbelievable and is no small thing.

Nothing was ginned up here. A man did die under unusual circumstances and statements from those present did not jive. Even in the case of the infamous Captain of the Bounty his actions while lawful were held up to a hearing and the truth revealed showed that while he was within the law he did not behave properly. He was not imprisoned for it however he was reprimanded or if you prefer scolded for his failing in his duty. This captain should have been held up to scrutiny in the courts and at least reprimanded for his part in all this even if he ended up with was just the time already served under house arrest.

I never said he should rot in jail only that he be brought to court and the matter fully disclosed under oath.

You rejoice that you live where you can die due to the carelessness of others and the matter will just be shrugged off without a full and complete hearing on the matter?


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## MarkofSeaLife

mstern said:


> These "technicalities" are not bugs in the system, they are a feature of the system.


And I hang my glove on that one!


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## nolatom

The Coast Guard could have proceeded against the license of a (this) mariner for negligence or violation of regulation (among other things), but evidently they did not do so in this case. The report from their investigator (which report had not been given to the jury pending a decision by the judge whether to disclose it--defense wanted it disclosed, prosecution didn't) likely sets out why not. Might its contents have influenced the judge in granting the acquittal motion on technical grounds? Who's to say.

US courts (UK also) operate on the adversarial model, rather than the investigative model one sees in some other European systems. So continuing a trial in order to give everthing a full hearing so to speak, isn't going to happen if there is a valid reason to conclude the prosecution can't meet its burden of proof, such as where it tries to apply an inapplicable statute. Public boards of investigation do go into such detail, as do civil lawsuits.


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## hpeer

eherlihy said:


> ... So, would anyone here like to help Captain Smith bring his boat back to Maine?
> just askin'...


I would with no compunctions at all.


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## hpeer

MarkofSeaLife said:


> There maybe no law... but there must be a rule.
> 
> The US Navy in searching for the downed KC130 Tanker a few weeks ago kept searching for many days, until FAR after those people could have possibly survived.
> They must have some rule, say, estimated maximum survival time x 2.
> 
> I will give you my newly formulated rule: Any Crew of mine going overboard will have me searching for them for Estimated Survival Time x 2... during which I will fire every EPIRB and call everyone on my sat phone till there is help in the search, no matter what.
> 
> If you get on my boat the only way off is the Gang Plank in a safe port.
> 
> I guarantee it!


Back in my day we did have just such rules. There were 2 factors: hypothermia and shark attack. As water got warmer shark attacks went up. Searches were terminated with respect to those graphs. Some percent chance of survival.

Occasionally, a search went longer or was reinstituted because of outside pressure.

No idea what current practice is.

Searching for an answer I found this:

https://www.duffelblog.com/2017/06/navy-man-overboard/



> "I think it was [Vice Admiral] Shelanski who asked, 'Well, do we have to take them out of the water?' We all laughed, but then a few minutes later he asked again: 'Seriously, do we have to?' So we pulled our old Admiralty law off the shelf, along with our Navy Regulations, and discovered that we're actually not obligated to. It's just one of those 240-year traditions where no one can remember why we do it."
> 
> Acting Secretary of the Navy Sean Stackley said he concurred with the Navy's decision.
> 
> "Last year alone we had 17 sailors fall overboard," Stackley said at a press conference. "It costs an average of $50,000 to divert a single ship off course for an hour. Given the average three to four hour rescue time, plus diverting accompanying vessels, we're easily wasting millions of dollars a year on sailors who apparently can't master such elementary tasks as not falling off a ship."


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## Sailormon6

Read that entire Duffleblog article. It's priceless!


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## hpeer

I can’t find the graphic I was looking for. Then it was 46 years ago soooo ... consider the source. I do recall it trailing off at higher temps. Now that I think about it I asked “Why?” And was given “Sharks.” As an answer. But that may not be right.


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## hpeer

Sailormon6 said:


> Read that entire Duffleblog article. It's priceless!


Have I been had? Didn't find a supporting article!

Another article I read said that MOB, in cold water, sometimes take off their cloths and are very beligerant to rescuers. Lost the link. Seems there is a lot written to occupy your mind.


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## Sailormon6

There's a little line of ads for sailing attire. Scroll down below that and keep reading to the end of the article.


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## mstern

Sailormon6 said:


> Read that entire Duffleblog article. It's priceless!


Very Onion-like!


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## hpeer

Yup, I’ve been had. Oh well, happens to the best of us, let alone me.
Sorry, my bad, I was negligent.


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## Sailormon6

hpeer said:


> Yup, I've been had. Oh well, happens to the best of us, let alone me.
> Sorry, my bad, I was negligent.


Hard to say. Maybe the Navy is having a budget crunch, and looking for ways to reduce operating costs and cut out deadwood.


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## svHyLyte

The elements of this matter, the inferred obligation to attempt a rescue at sea, pursuant to various international treaties and statutes, together with citations, are discussed in an article that appeared in Pacific Wartime Magazine, see "Rescue at Sea". Whether Smith is/was in violation of any of these "rules" is an entirely subjective matter as case law has gone both ways. Moreover, the "get out of jail free" card is whether he had concern for the safety of his ship and/or crew which again calls for a subjective judgement albeit his own.

Not having been on the scene, I don't have enough information to formulate an opinion. As for what he was charged with, the Law cited was not applicable to his situation and a directed acquittal was the appropriate disposition.

FWIW...


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## mstern

SeaStar58 said:


> I never said he should rot in jail only that he be brought to court and the matter fully disclosed under oath.
> 
> You rejoice that you live where you can die due to the carelessness of others and the matter will just be shrugged off without a full and complete hearing on the matter?


You are going down a dangerous path here. There are only three avenues to get the "hearing" you want: a criminal trial, a civil trial, or a regulatory proceeding. The state tried the criminal route and found that there was no charge they could bring; the man's estate, for whatever reason, withdrew their civil suit (note, they could have asked the court to hold it in abeyance pending the outcome of the criminal trial, but they didn't), and the Coast Guard has chosen not to proceed with a regulatory licensing enforcement case.

What I rejoice in is not that there was no such hearing, but that I live in a country where the legal system is such that the powers that be can't just make one up and hold me to whatever standard the person in power chooses. The "dangerous path" I referred to above is when you feel the facts are so compelling in your case that you are willing to go outside the system to get the result you want.

I think you did get 90% of what you wanted here anyway. The witnesses to the incident did testify in court, under oath. I think we all know most of what happened here at this point.

And I promise this is the last time I will say it: the case wasn't dismissed on a "technicality". It was dismissed based on a fundamental principle of American criminal justice.


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## Minnesail

mstern said:


> I cannot really get my head around the fact that anyone would support a conviction of a man for a crime he didn't commit because they feel "well, what he did was awful, so he should be guilty of something!"


My dad used to say something to the effect of "He was found not guilty, but worthy of being locked up anyway." 



outbound said:


> You can even look at it from a philosophical point of view. Is right innate ( Rousseau/ Spinoza) or externally brought to bear (Hobbes).


I am currently making my way through Steven Pinker's "The Better Angels of Our Nature" and his conclusion is that we're more Hobbes than Rousseau, that we are learning to behave better over time but it's through law and culture and education, and not because of any primitive goodness.

I think he's a bit prone to confirmation bias, and his tone is probably too glib for a lot of people, but it's an interesting book regardless.


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## mstern

Minnesail said:


> My dad used to say something to the effect of "He was found not guilty, but worthy of being locked up anyway."


I remember one discussion with a police officer, who flat out told me that he's lied in court in order to get a conviction. His rationale: "he may not have done this, but he's done something else that we didn't catch him for..." Fortunately, I don't think that kind of attitude was at all widespread. Most of the cops I worked with were on the straight and narrow. But still, it was quite unnerving to hear that kind of talk, and just one cop like that will poison public confidence in the rest.

That all being said, it was not hard to see where this guy was coming from. Most defendants at this time and place were professional criminals, and had been in the business of crime since they were very young. It would not be a stretch to say that while the lying in court was insupportable (and a crime in and of itself), the defendant probably had done more than one crime that he hadn't been arrested for.


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## hpeer

Snort! I was present at the trial of a lady who was admittedly driving under the influence of prescription drugs, extreamly erratically (I witnessed) and who crashed, but was too looped to get out of the car. All the above was stipulated by defense. Who then told the Judge “You cant convict her because her drug test came back negative because the ER was full and it too many hours to do the test.” (Haughty NYC lawyer, his suit cost more than my car new.). The judge declared her guilty anyway. Slick went into a fury about how he was right and he would appeal. The judge said (obviously paraphrasing, but not as much as you think, things were pretty raw.):

“Look Slick, you can appeal my ruling, you will probably win. The appeal will cost her $15,000 and take 6 months minimum. In the meantime she’s off the road and no danger to the public. So guess what, I win!”

Slick made some sarcastic comments, slammed a few things, making a great show, and stormed out of the courtroom. The Judge shook his head and laughed.


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## paulk

hpeer said:


> Snort! I was present at the trial of a lady who was admittedly driving under the influence of prescription drugs, extreamly erratically (I witnessed) and who crashed, but was too looped to get out of the car. All the above was stipulated by defense. Who then told the Judge "You cant convict her because her drug test came back negative because the ER was full and it too many hours to do the test." (Haughty NYC lawyer, his suit cost more than my car new.). The judge declared her guilty anyway. Slick went into a fury about how he was right and he would appeal. The judge said (obviously paraphrasing, but not as much as you think, things were pretty raw.):
> 
> "Look Slick, you can appeal my ruling, you will probably win. The appeal will cost her $15,000 and take 6 months minimum. In the meantime she's off the road and no danger to the public. So guess what, I win!"
> 
> Slick made some sarcastic comments, slammed a few things, making a great show, and stormed out of the courtroom. The Judge shook his head and laughed.


Sometimes, judges do the right thing. Another case in point:"On The Basis of Sex". Good film.


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## Slayer

Sailormon6 said:


> No he didn't. That decision pertained to the Seaman's Manslaughter Statute at 18 U.S.Code § *1115*. The above question relates to the Federal Manslaughter Statute at 18 U.S. Code § *1112*. Those are different laws, and the decision you cited has no applicability to the Federal Manslaughter Statute at 18 U.S. Code § *1112*.


Please forgive my mistaking that you did not mean the Seaman's Manslaughter Statute (also federal). My mistake could be because this entire thread began with a discussion of a Captain charged under the Seaman's Statute.


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## outbound

Interesting that there’s increasing hard scientific data showing we are hard wired to have empathy and altruistic behavior. It’s written into our biology. Sure there are egocentrics, borderline personalities and sociopaths but the average joe isn’t such a bad guy.

Oh, btw the deceased crew didn’t have his day in court. Think he deserved one. Don’t care for what legal semantics are applied. That simple fact persists.
Still don’t know if smith is safe to captain or continues to represent a risk to others or if he was unnecessarily screwed. No closure. Don’t care if due to bad lawyering by prosecutors, delay in pursuing civil case, bad reporting by CG. Net result the same.


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## hpeer

I think Lady Justice kind of has it right, if it were only so.

https://en.m.wikipedia.org/wiki/Lady_Justice


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## Sailormon6

Slayer said:


> Please forgive my mistaking that you did not mean the Seaman's Manslaughter Statute (also federal).


 No apology necessary. We only caught on to the distinction between the two provisions after about 50 or so pages of discussion.


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## Sailormon6

outbound said:


> Oh, btw the deceased crew didn't have his day in court. Think he deserved one. Don't care for what legal semantics are applied. That simple fact persists.


I don't know how anyone can realistically expect that Pontious have a "day in court" when he's one of four people in a small boat in the Atlantic Ocean. Likewise, Pontious didn't give the captain his "day in court" when he tried to beat him and choke him to death. I can't imagine anyone venturing out into the wilderness who actually expects a "day in court" if he becomes a victim of a crime in the wilderness. In the real world, you can't pause the video tape of life while you resolve interpersonal issues with a trial and a judge. It doesn't happen that way in a wilderness, and it also doesn't happen that way at 2:00 am on a dark street in a crime ridden city.

Since the birth of this nation, much of it's history took place in a lawless wilderness. It was long ago concluded that, since you can't provide basic legal resolution of disputes to people while in a wilderness, the best we can offer is to provide legal resolution of disputes after they return to civilization. It's an imperfect remedy, but it's the best we can offer. A perfect remedy would be if the courts could simply undo the harm that was inflicted on a party, but that's obviously impossible. Even in the best of situations, once a life is taken, the courts can't restore it. Once bruises are inflicted, the courts can't make the pain go away.

In this case, any grievances Pontious had were litigated unsuccessfully by his family in a civil action, and by the US Attorney in a criminal action. The legal system provided him two opportunities for his "day in court." The system doesn't guarantee that any particular party to the proceedings will like the outcome. Pontious received his day in court, twice.


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## RegisteredUser

.....west of the Pecos


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## OldEagle

> Oh, btw the deceased crew didn't have his day in court. Think he deserved one. Don't care for what legal semantics are applied. That simple fact persists





> In this case, any grievances Pontious had were litigated unsuccessfully by his family in a civil action, and by the US Attorney in a criminal action. The legal system provided him two opportunities for his "day in court." The system doesn't guarantee that any particular party to the proceedings will like the outcome. Pontious received his day in court, twice.


Although I would agree with Outbound in his take on the events at sea, I think Sailormon6 is correct here. Pontious and his family ended up "emptyhanded", but they did get "justice". Our legal system cannot produce perfect results; no human system can. But our system is far better than its predecessor & primary historical alternative--in which families/clans extract their own "justice". Those "honor" cultures--an eye for eye, tooth for a tooth, life for a life" inevitably descend into generational blood feuds. Our Anglo-American legal system evolved over centuries, supplanting ancient Germanic honor cultures. Such honor cultures still exist in other parts of the world--notably the Mideast. To wit: an acquaintance of mine returned from a tour of duty in Iraq. He witnessed: Twelve year old kid steals a melon. Farmer kills the kid. Kid's family kills the farmer. Farmer's family kills someone else from the kid's family...and this will continue. Our forebears have freed us from this sort of thing, at the price of "imperfect" results, and we would be wise to preserve the gift they've bequeathed us: "justice" from disinterested individuals in a process with some "objective" rules vs "vengeance" from the injured parties.


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## outbound

I thought the family didn’t file in time so no civil case was pursued. Guess I got it wrong.


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## mbianka

Am I to understand there was no testimony of some of the expert witnesses like sea survival specialist Mario Vittone because of the acquittal? Would have been interesting to hear his testimony on survivability in the situation.


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## Sailormon6

outbound said:


> I thought the family didn't file in time so no civil case was pursued. Guess I got it wrong.


As I understand it, I believe you're correct. They pursued a civil remedy, but not within the time required by the statute of limitations. Statutes of limitations are laws passed by legislative bodies to set the maximum time after an event within which legal proceedings may be initiated. I don't know the time limit for that action, but it's probably at least a year. All they had to do to stop the time limit from expiring was to file a court complaint. You can't sit on your rights. The purpose of a statute of limitations is so that a potential lawsuit can't hang over your head indefinitely. Those matters have to end eventually, so people can go on with their lives.

A remedy was available to the family. It was up to them to take it.


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## VIEXILE

I know the Judge and the Magistrate, defense attorney and AUSA that oversaw the criminal end of this case. It ended on a defense Rule 29 motion before the jury even came in the Courtroom in St. Thomas. I had a feeling this was the way it would go. Here's a fairly cogent article from someone sitting in the courtroom: https://stthomassource.com/content/2019/01/10/judge-acquits-captain-in-manslaughter-case/


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## Damon Gannon

Interesting read. I have heard stories about people suffering psychological problems from Scopolamine patches. I've never used the patch and I haven't witnessed anyone having this sort of side effect. But I might insist that crew on my boat find a different treatment for seasickness, especially for offshore passages.

https://wavetrain.net/2019/03/27/th...did-a-scopolamine-patch-drive-him-to-suicide/


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## VIEXILE

Damon Gannon said:


> Interesting read. I have heard stories about people suffering psychological problems from Scopolamine patches. I've never used the patch and I haven't witnessed anyone having this sort of side effect. But I might insist that crew on my boat find a different treatment for seasickness, especially for offshore passages.
> 
> https://wavetrain.net/2019/03/27/th...did-a-scopolamine-patch-drive-him-to-suicide/


Interesting take. But the Coast Guard basically pointed out in their report that the Captain was not at fault. That and the fact Mike Sheesly convinced the Judge that this didn't fall under the Statute from a "commercial" perspective and was wrongly charged. First thing a good attorney does is analyze the charge and the elements of proof required. I've read stuff on this all over the place where one person wants the Cap to walk, the next wants him drawn and quartered. I have found, over the years, for the most part, proper application of the law will work things out (again, for the most part). I got more stories down here.


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## jtsailjt

VIEXILE said:


> I know the Judge and the Magistrate, defense attorney and AUSA that oversaw the criminal end of this case. It ended on a defense Rule 29 motion before the jury even came in the Courtroom in St. Thomas. I had a feeling this was the way it would go. Here's a fairly cogent article from someone sitting in the courtroom: https://stthomassource.com/content/2019/01/10/judge-acquits-captain-in-manslaughter-case/


Interesting summary of what happened in court that led to his acquittal.

One bit in there that I hadn't heard was the part about 7'-8' seas. I thought I'd read that they were nearly calm when the incident happened, or did I just imagine that? But of course there are all kinds of 7' seas, depending on whether the weather causing them is local or far away. I suppose at this point it doesn't matter but I keep trying to visualize conditions and a situation where just continuing onward like they did without spending even 15 minutes turning around and trying to locate their MOB could be seen as a reasonable thing to do. Short of being in a hurricane, so far I've been unsuccessful.


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## VIEXILE

jtsailjt said:


> Interesting summary of what happened in court that led to his acquittal.
> 
> One bit in there that I hadn't heard was the part about 7'-8' seas. I thought I'd read that they were nearly calm when the incident happened, or did I just imagine that? But of course there are all kinds of 7' seas, depending on whether the weather causing them is local or far away. I suppose at this point it doesn't matter but I keep trying to visualize conditions and a situation where just continuing onward like they did without spending even 15 minutes turning around and trying to locate their MOB could be seen as a reasonable thing to do. Short of being in a hurricane, so far I've been unsuccessful.


Woulda coulda shoulda, but I'm not sure how hard I'd be looking for someone that just had their fingernails digging into my neck for several minutes. How would things might've gone had they gotten him back onboard? All speculative. All I speculated on was the outcome based on the initial report. The USCG investigator confirmed my theory. The defense attorney ended the matter with a R29 Motion for Acquittal.


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