A federal appeals panel in Pasadena heard arguments Tuesday but made no immediate ruling on a bid to vacate the conviction of the former captain of the dive boat Conception, which caught fire near Santa Cruz Island on Labor Day 2019, killing 33 passengers, including two Santa Monica residents, and a crew member.
Jerry Boylan, 72, was sentenced last year to four years in federal prison for the single charged count of misconduct or neglect of ship officer, a pre-Civil War law also known as seaman’s manslaughter. He was convicted in November 2023 following a 10-day trial in Los Angeles federal court.
Boylan is free on bond pending Tuesday’s appeal before a three-judge panel of the U.S. Ninth Circuit Court of Appeals.
The fire of unknown origin is considered the worst maritime disaster in modern California history.
In his argument for the conviction to be overturned, Hunter Haney, Boylan’s federal public defender, called the case “an undeniable tragedy,” but maintained that legal errors prejudicially impaired the defense strategy of the Conception’s captain.
Faulty jury instructions concerning “civil regulations and the required culpable acts, mental state, and causation standards for seaman’s manslaughter,” as well as “inadmissible” expert testimony, hobbled Boylan’s arguments for an acquittal at trial, Haney said.
“Criminal law abhors negligence convictions but the court here encouraged that outcome,” the defense attorney told the judges.
U.S. Circuit Judge Consuelo Callahan pointed out that when people go out to sea under the control of a captain, “they are in a particularly vulnerable situation. It would seem there’s some undisputed evidence in the record about the (crew’s) poor training that leaves a jury no alternative.”
Assistant U.S. Attorney Alexander Robbins insisted that the Boylan jury was, in fact, properly instructed by the trial judge, U.S. District Judge George Wu, and the conviction was warranted.
“Looking at the totality of the record, looking at what was actually argued before the jury in that courtroom two years ago, none of the hairs that we are splitting here today … had anything to do with what was before that jury,” he said.
At the conclusion of the hearing, Callahan addressed the audience in the courtroom, saying the panel realizes the arguments were “difficult” for non-lawyers, and thanked observers for their attention.
In May 2024, more than 15 family members spoke at the nearly four-hour sentencing hearing in Los Angeles federal court, providing memories of children, spouses, brothers and sisters who perished in the tragedy.
The charge of seaman’s manslaughter carries a maximum sentence of 10 years in prison, but Wu said at the hearing he could not find legal precedent for such a penalty in Boylan’s case. The judge said he took into consideration such mitigating factors as Boylan’s age, health issues, lack of criminal intent or prior convictions in fashioning the four-year term.
Family members spoke of Boylan’s apparent lack of remorse, but the judge said the defendant had filed a video expressing great contrition.
In a brief statement read aloud by his attorney, Boylan said, “It was my goal to bring everyone home safely — and I failed.”
Along with the prison term, Wu ordered the defendant to serve three years of supervised release, with the condition that he participate in mental health treatment.
The jury in downtown Los Angeles returned its guilty verdict on Nov. 6, 2023 at the end of the first day of deliberations.
Boylan’s failure to organize required roving night patrols of the 75-foot vessel allowed the fire to spread unimpeded, killing victims whose ages ranged from 16 to the 60s.
Defense attorneys blamed the ship’s owner, Glen Fritzler, for not insisting on roving night patrols or fire training for his fleet’s captains and crews.
Boylan was the first to abandon ship and jump overboard. Four crew members also survived by jumping into the ocean in the predawn hours of Sept. 2, 2019.
Evidence showed Boylan failed to use firefighting equipment, including a fire ax and fire extinguisher that were next to him in the wheelhouse, to fight the fire or attempt to rescue trapped passengers.
Meanwhile, 33 passengers and one crew member were still alive and trapped below deck in the vessel’s bunk room and in need of assistance to escape, prosecutors said.
The captain failed “to perform any lifesaving or firefighting activities whatsoever at the time of the fire, even though he was uninjured” and failed to use the boat’s public address system to warn passengers and crew members about the blaze, according to court papers.
Among the nearly three dozen people trapped aboard the passenger boat when it sank were two Santa Monica residents, Marybeth Guiney and Charles McIlvain, diving enthusiasts who lived in the same condominium complex.
The fire broke out while the boat was anchored in Platt’s Harbor near Santa Cruz Island.
Boylan was originally charged in December 2020 with 34 counts of seaman’s manslaughter, but after the defense objected, prosecutors refiled an indictment on the single count covering all the deaths.
“Defendant has never apologized, much less taken any responsibility for the atrocity he caused,” according to the prosecution’s sentencing papers.
The fire prompted criminal and safety investigations. Victims’ families have also filed claims against Fritzler and his company.
The company, in turn, filed a legal claim to shield it from damages under a maritime law that limits liability for vessel owners.
The families’ suits contend that the 41-year-old Conception was in blatant violation of numerous Coast Guard regulations, including failing to maintain an overnight roving safety watch and failure to provide a safe means for storing and charging lithium-ion batteries, and that the below-deck passenger accommodations lacked emergency exits.
The Coast Guard’s inadequate requirements for smoke alarms are the sole reason these people perished. Because of smoke alarm requirements elsewhere in the United States, you can not kill 34 people in a fire of common origin and cause – unless of course you are in a recently inspected and compliant Sub Chapter T Vessel.