Lessons Learned – by Pat Carson
Lessons Learned From The New USCG Rules
On Monday, Sept. 2, 2019, at approximately 0314 Pacific daylight time, U.S. Coast Guard Sector Los Angeles/Long Beach received a distress call from diving vessel, Conception with 33 passengers and six crew on board. “Mayday, Mayday, Mayday. Conception, Platts Harbor, north side Santa Cruz, 39 POB. I can’t breathe. Thirty-nine POB. Platts.” Those were the last words, at 0314, that the captain made in a distress call over the VHF radio to the U.S. Coast Guard on the morning when the Conception dive boat caught fire and sank with 39 people on board.
The Labor Day 2019 fire that killed 34 people aboard the Conception off Santa Barbara is the worst maritime disaster in California since the sinking of the Brother Jonathan in 1865, and the deadliest in the United States since the USS Iowa turret explosion in 1989.
The coroner determined that the cause of death was smoke inhalation. This was discovered by toxicology tests showing lethal levels of carbon monoxide in their blood and the presence of black soot in their tracheas. The coroner was unable to determine the victims’ locations within the bunk room, but several were found wearing shoes, sandals or jackets, and one was holding a flashlight.
The National Transportation Safety Board recommended in its investigation that the Coast Guard require boat owners to install more comprehensive smoke detector systems, upgrade emergency exits and make mandatory inspection checks on roving watches.
At the time the fire started, five crewmembers were asleep in their bunks in the wheelhouse and in the crew staterooms on the upper deck, and one crewmember and all 33 passengers were asleep in the bunkroom. A crewmember sleeping in an upper deck stateroom was awakened by a noise and got up to investigate. He saw a fire at the aft end of the sun deck, rising from the saloon compartment below. The crewmember alerted the four other crewmembers sleeping on that deck. As crewmembers awoke, the captain radioed a quick distress message to the Coast Guard before evacuating the smoke-filled wheelhouse.
At 0432, approximately 78 minutes after the initial distress call, the Coast Guard and other first responder boats arrived on scene to extinguish the fire and search for survivors. Helicopters also aided in search efforts. The vessel burned to the waterline and sank just after daybreak in about 60 feet of water. Thirty-three passengers and one crewmember died.
Truth Aquatics filed a lawsuit on Sept. 5, 2019 in the United States District Court for the Central District of California seeking to limit its liability under the Limitation of Liability Act of 1851. This was an apparent attempt to limit its liability for monetary damages to the value of the ship. Under the terms of the lawsuit, the ship value was assessed after it sank. Because the insurer had deemed it a total wreck, the value was US$0.
The first lawsuit against Truth Aquatics was filed one week later on Sept. 12 by one of the surviving crew members from the Conception. The civil lawsuit, filed in Ventura County Superior Court against Truth Aquatics and Worldwide Diving Adventures claimed that the crew had not received proper training, nor was the boat outfitted with appropriate emergency equipment.
A counterclaim against the original limitation of liability suit was filed in Nov. 2019 by the spouse of a passenger who died aboard the Conception seeking funeral expenses, wrongful death, survival and punitive damages. In Jan. 2020, attorneys representing the families of four victims also responded to the original suit with wrongful death claims, claiming that the defendants killed these victims by breaking the law and failing to have a roving night watch whose job was to prevent the very catastrophe that occurred. By Dec. 2020, 32 of the families had filed claims against Truth Aquatics. In Dec. 2020, Truth Aquatics had sold its two remaining liveaboard dive vessels. Truth Aquatics agreed to pause their earlier suit to limit liability until the lawsuits filed by the families of the victims are resolved.
A criminal investigation against the captain was carried out in the summer of 2020. In Dec. 2020, the United States Attorney’s office for the Central District of California announced that the captain of the Conception had been indicted by a federal grand jury for his misconduct, negligence and inattention to his duties. In Feb .2021, 34 counts of manslaughter were filed against the captain who plead not guilty and is currently free on bond. Subsequently, the families of the victims filed a federal lawsuit against the Coast Guard in Sept. 2021, alleging that its failure to enforce regulations led to the fire and deaths. These cases still have not been resolved.
The proposed new rules listed in the Federal Register on Dec. 27, 2021, in summary require small overnight passenger vessels to be equipped with systems or training programs to address the deficiencies noted by the NTSB, perform emergency escape drills with passengers from their beds, develop safe handling procedures for hazardous items like rechargeable batteries and add a monitoring device to ensure that the watch is awake at night.
An investigation into the disaster blamed the Conception’s owners for a lack of oversight and the boat’s captain for failing to post a roving watchman aboard the vessel which allowed the fire to quickly spread and trap the 33 passengers and one crew member below deck. Captain Jerry Boylan and four crew members, all of whom were sleeping above deck escaped.
Under the interim rules that take effect over the next two years, passenger boat owners will be required, among other things, to install fire detection and suppression systems, provide better escapes and use devices aboard that make sure a night watchman is alert and making frequent rounds. The new rules were expected after Congress mandated that the Coast Guard review its regulations for small passenger vessels in Dec. 2020. The law, included in the National Defense Authorization Act, also added new requirements regarding fire detection and suppression. The National Transportation Safety Board recommended in its investigation that the Coast Guard require boat owners to install more comprehensive smoke detector systems, upgrade emergency exits and make mandatory inspection checks on roving watches. While investigators could not determine what caused the fire because the boat burned and sank, they say the blaze started toward the back of the main deck saloon where divers had plugged in phones, flashlights, cameras and other items with combustible lithium-ion batteries.
The rules published late last month in the Federal Register begin taking effect March 28 and could be changed after a public comment period that ends in June. More importantly, the new rules will be retroactive for existing vessels and their implementation is staggered based on their complexity. For example, by Dec. 27, 2023, every passenger vessel must have two independent escapes and new interconnected fire protection gear is to be installed within one year. These rules do not apply to ferries, fishing boats or recreational vessels however, as recreational boat owners who regularly sleep on board we should learn from mistakes from others and heed the new USCG rules.
In parallel, criminal investigations by the Coast Guard Investigative Service (CGIS), Federal Bureau of Investigation (FBI), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Department of Justice (DOJ) are working in coordination with the U.S. Attorney’s office.
Li-ION Battery History
At this time, the USCG does not have any guidance on the suppression of lithium-ion battery fires, so we can look to other sources that have to deal with this new hazard. The Federal Aviation Administration (FAA) has issued a written advisory on dealing with inflight battery fires. Apparently, any given flight may contain hundreds of Li-Ion cells in phones and laptops. There are many rechargeable devices involved in these fires such as wireless headphones and especially e-cigarettes which were not even on the market a few years ago. On average, the FAA reports that there is one Li-Ion battery fire on board an aircraft every 11 days. Battery fires are particularly dangerous because they burn very hot and can emit toxic byproducts. They tend to flare up even after it seems like they have been extinguished. The FAA guidance indicates that the best way to cool a runaway battery is, believe it or not, with plain old water. After extinguishing the fire, douse the device with water or other nonalcoholic liquid to cool it and prevent additional battery cells from reaching thermal runaway. So, what kind of fire extinguisher should you use in this scenario? Li-Ion batteries are considered a Class B fire, so a standard ABC or BC dry chemical fire extinguisher should be used. Li-Ion batteries contain liquid electrolytes that provide a conductive pathway, so the batteries receive a B fire classification.
As recreational boaters we can learn from this maritime causality. Have smoke detectors installed in locations where a fire is likely to start and in the sleeping quarters of your vessel. Use interconnected smoke detectors so that all alarms will sound if smoke is detected in any location. Limit the overnight unattended charging of Li-Ion battery powered devices, especially in the area of the emergency pathway to safety. Have handheld fire extinguishers placed in several locations throughout your yacht. USCG guidance for the minimum number of handheld extinguishers is just that, the minimum. The NTSB reports also identified “potential fire safety issues,” including flammable interior materials, size and accessibility of emergency exits and the fact that both exits from the bunk room led to the same compartment. Know where your emergency escape exits are located and make certain that they are accessible. Many yachts have an overhead hatch in the forward stateroom that for some folks would be impossible to crawl through. In many designs, the aft stateroom has a small port that may or may not be functional or large enough to crawl through.
As mariners, there is no such thing as being overly concerned with safety measures or being overly prepared to handle an emergency situation. Seek out an annual vessel safety check by a certified vessel safety examiner from the U.S. Power Squadron or the U.S. Coast Guard Auxiliary. The required items under this inspection are the low bar but are a good starting point to help ensure that your vessel is safe to operate. My article subject matter is largely focused on safety items and situations of a safety nature for a reason. Be safe on the water and do not become a victim to complacency or neglect.
None of us can afford to take safety for granted. It is Vessel Safety Check time. Inspect your vessel’s required safety equipment, including personal flotation devices, visual distress signals and fire extinguishers. Do not forget to inspect your nonrequired safety equipment such as CO detectors, smoke alarms and the VHF radio. These are as important as the required items.
The Conception accident was severe enough to merit three separate lines of inquiry: a federal criminal investigation led by the Coast Guard Investigative Service, an NTSB safety investigation and a U.S. Coast Guard Marine Board of Investigation (MBI), a formal process reserved for the most serious casualties. The NTSB is usually the first to offer published conclusions.
The National Transportation Safety Board (NTSB) has authority to investigate and establish the probable cause of any major marine casualty or any marine casualty involving both public and nonpublic vessels under CFR49 section 1131. The NTSB does not assign fault or blame for a marine casualty, rather, as specified by NTSB regulation, investigations are fact finding proceedings with no formal issues or adverse parties and are not conducted for the purpose of determining the rights or liabilities of any person. Reading CFR49 Section 831.4, assignment of fault or legal liability is not relevant to the NTSB’s statutory mission to improve transportation safety by conducting investigations and issuing safety recommendations. In addition, statutory language prohibits the admission into evidence or use of any part of an NTSB report related to an accident in a civil action for damages resulting from a matter mentioned in the report.
The United States Coast Guard (USCG) Marine investigators carry out investigations of commercial vessel causalities and reports of violations per CFR46 chapter 61, 63 and 77. The primary purpose of the USCG investigation is to ascertain the cause or causes of the accident, causality or personal behaviors or, if any violation of federal law has occurred and to determine if remedial measures should be taken. The USCG is authorized to enforce incidents involving vessel personnel, boating accidents, waterfront facility causalities, deep water port causalities, marine pollution incidents, accidents involving Aids to Navigation and accidents involving structures on the Outer Continental Shelf. The results of their investigations play a major role in changing current laws, developing new laws and regulations and implementing new technologies. During the course of the USCG Marine Board of Investigation (MBI), the panel must decide the factors that contributed to the accident, whether there is evidence that any act of misconduct, inattention to duty, negligence or any willful violation of law on the part of any involved person contributed to the causality. In some instances, the MBI will identify pressing safety issues and will issue safety alerts that are available to the public through the Coast Guard Office of Investigations and Causality Analysis website.
It is now time to kick back and enjoy a good Port and cigar while I check my vessel’s safety equipment in preparation for Safety Day at the Stockton Yacht Club at the end of February. Until next month, please keep those letters coming. If you have a good story to tell, send me an email at firstname.lastname@example.org. I love a good story.