‘Seaman’s Manslaughter,’ Coast Guard Says, Referring Barge Deaths to Prosecutors

July Accident Killed Three Girls Learning To Sail

Peter Swanson Oct 31

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The operators of a barge that ran over a Hobie Cat in Biscayne Bay killing three young girls in July yesterday learned they are in the worst kind of trouble. Coast Guard investigators have referred the case for prosecution, specifically with seaman’s manslaughter as the possible charge.

Seaman’s manslaughter is a federal offense that holds vessel owners, officers or crew liable for death that results from their misconduct, negligence or inattention to duty. The penalty is up to 10 years in prison, fines or both.

“After conducting a thorough marine casualty investigation, we’ve referred this case to Department of Justice for criminal investigation to ensure full accountability and help deter similar cases in the future,” said Coast Guard Sector Miami Commander Capt. Frank J. Florio. “As the process moves into this new phase, our thoughts and prayers are with those impacted by this tragic incident.”

The accident happened on July 28 at around 11:15 a.m., when the barge hit the 17-foot catamaran, killing Mila Yankelevich, 7, Erin Victoria Ko Han, 13, and Arielle ‘Ari’ Mazi Buchman, 10. Two other girls were injured in the collision, which happened near Hibiscus and Monument islands off Miami Beach.

The excursion was part of a youth sailing program under the auspices of the Miami Yacht Club. Their instructor was a 19-year-old camp counselor.

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Lawyers for some of the victims praised Coast Guard action in the case.

“This is a sign that the wheels of justice are moving in the right direction,” Attorney Judd Rosen told the Miami Herald (which, by the way, is the best conventional news outlet for coverage of this case). Rosen’s firm represents one of the injured survivors.

“This referral for criminal charges brings our clients a measure of relief that meaningful steps toward justice are being taken,” said Justin B. Shapiro, an attorney for 7-year-old Calena Areyan Gruber, who managed to survive after having been trapped beneath the barge.

The owner of the tug and barge in question is Waterfront Construction. In the lawsuit against Waterfront, Rosen faults the captain and crew of the tug Wood Chuck for failing to keep a proper lookout. Rosen said no one on the tug signalled with its horn even when collision was imminent.

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The Coast Guard has not publicly talked about specific elements of its potential manslaughter case, but it would likely center around the issue of proper lookout.

In its story today, the Miami Herald’s reporting touched on applicable regulations and the rules-of-the-road issues in the case:

Under federal law, commercial tugboats under 26 feet do not require the operator to be a licensed captain. The only requirement is that the operator be a U.S. citizen. A commercial maritime expert told the Herald that tugboat companies often advertise ‘No Licensed Captain Required!’ for pushboats or truckable tugs.

While a licensed captain isn’t required, Coast Guard Navigational Rules still dictate that a lookout must be on board the vessel. Eyewitnesses interviewed by the Herald said they saw a barge crewman warning the tugboat operator only at the last moment before the crash. And other eyewitnesses told the Herald they didn’t hear horns before the crash; navigational rules call for horns to signal when a vessel is approaching.

The Coast Guard’s Rules of Navigation generally grant the right-of-way to sailboats over engine-powered boats, but there are exceptions, including a vessel “restricted in her ability to maneuver.” This is defined in the rules as “a vessel which, from the nature of her work, is restricted in her ability to maneuver as required by these Rules and is therefore unable to keep out of the way of another vessel.” The exception includes one vessel towing another because the job “restricts the towing vessel and her tow in their ability to deviate from their course,” the Coast Guard rules say.

Lorenzo Palomares, a lawyer for the owner of Waterfront Construction, has noted that the unnamed tug captain has 12 years of experience working on Biscayne Bay. Palomares told the Herald that the Wood Chuck crew had indeed been keeping a lookout.

And actually saw the yacht club’s sailboat, which he said was part of a caravan of similar vessels traveling to Monument Island. But, that boat suddenly left the group and sailed into the path of the barge, Palomares said.

The tug captain had the caravan in sight and actually turned 10 degrees to ensure the tug and barge were clear of the group, but he did not see the sailboat separate from the other boats, Palomares said, stressing that tugboats pulling and pushing barges have very little time to react.

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