New claimants say they can defeat deadly dive boat fire defenses

Lawyers representing four families of victims killed in a dive boat fire off Santa Barbara Island said Monday they believe battery charging ports, insufficient safety training and inadequate exits are to blame.

They filed a new set of claims in federal court in Los Angeles. Robert S. Glassman of Panish Shea Boyle LLP, and Robert J. Mongeluzzi and Jeffrey P. Goodman of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia are representing the claimants, the estates of Sanjeeri Deopujari, Kaustbh Nirmal, Yulia Krashennaya, who were divers on the boat, and crew member Alexandra Kurtz, all of whom died.

Thirty-four people died when the Conception caught fire in the early hours of Labor Day. Conception's owners, Glen and Dana Fritzler, who operate as Truth Aquatics Inc., invoked the 1851 Limitation of Liability Act three days after the disaster to minimize financial liabilities. In the matter of the Complaint of Truth Aquatics, Inc., 2:19-CV-07693 (C.D. Cal., filed Jan. 13, 2020)

James F. Kuhne Jr., a partner at Gordon Rees Scully Mansukhani LLP, represents the Fritzlers. He could not be reached for comment Monday.

Goodman and Mongeluzzi said there are several ways in which they plan to navigate around the Act, pointing to reports that the boat had no roving night watch. They also said they believe the owners had privity and forehand knowledge of the boat's designs and that Conception was unseaworthy because of a lack of escape routes and that the battery charging stations were in the galley just above the deck where passengers slept.

Federal regulations require two means for exit in an emergency on a vessel. The Fritzlers' chose through its design of the vessel to have two exits that led to the same place: the galley where the fire began, Goodman said.

Truth Aquatics relied on lithium-ion-battery charging stations, which uses tremendous power and can overheat, Goodman said.

Mongeluzzi called for federal criminal charges to be filed against Truth Aquatics. He cited 18 U.S.C. 1115 known as the Seaman's Manslaughter Statute which exposes captains and owners to liability if negligence is proven.

Criminal cases against vessels at sea with passengers relying upon their captain, crew and owners are very different than other types of liability under criminal and federal law, according to Mongeluzzi. The penalty for a manslaughter count is a maximum incarceration of 10 years.

The U.S. attorney's office in Los Angeles and the National Transportation Safety Board are investigating the disaster. Claimants' attorneys said they hope those probes won't delay their civil proceedings.

While the NTSB's final report will be released at some point, other evidence from the government's investigation such as interviews, field expert consultations and witness statements could be protected, Glassman said.

Federal prosecutors would pursue their own theories of liability against the Fritzlers' and Conception's captain. Their impressions of the incident and witness interviews would be shielded from civil litigators but could be subpoenaed or be subject to the Public Records Act, Glassman said.

A party to the litigation could be granted a stay in the civil case while a criminal case is pending if charges are filed, so it's possible a case could get delayed, Glassman said.

Claimants' attorneys argue that damages are permitted under the Merchant Marine Act of 1920, commonly known as the Jones Act, general maritime law and remedies provided by California state laws.

The Fritzlers' have invoked the Death on High Seas Act which applies to deaths that occur beyond 3 miles of U.S. shores, and severely limits certain recoveries. The statute also does not allow for recovery of any damages suffered by a decedent.

Goodman contended that the Death on High Seas Act "has nothing to do with this case," and that general maritime law is what will govern the litigation.

"The location of the event doesn't govern this matter and this didn't even happen on high seas," Goodman said. "Death on High Seas only impacts people working on the vessel, but for 33 of 34 deaths, it's not even remotely applicable."

If the Act is defeated, decedents could file lawsuits in federal or state court, and won't be limited to one kind of recovery, despite the arguments raised by Fritzlers, Goodman said.

Goodman added that the vessel's captain is also at the center of the events, which defeats the Act, as the Conception was a seagoing vessel thus imputing the captain's knowledge to the owner.

"If this was a pleasure craft or jet ski, the captain's knowledge doesn't get imputed onto the owner, but in seagoing vessels like Truth, it does," Goodman said. "The captain's negligence from not appointing a watch, not setting a schedule, not observing hazardous conditions can be deemed corporate negligence."

Claimants' counsel acknowledged they have no information on the owners' insurance and assets. They also didn't say if they expect to bring more defendants into the litigation.