Federal lawsuit charges US Coast Guard for abusing safety protocols when it cleared Conception to operate

The U.S. Coast Guard's marine safety division should have never cleared for operation a dive boat that burned near Santa Cruz Island in 2019 killing 34 people, according to a federal lawsuit filed Wednesday.

"The families and their attorneys have the greatest respect for the Coast Guard and the people who serve it. They particularly appreciate the Coast Guard's response on the night of the accident, and they want to do nothing to deter such heroic responses going forward," said John R. Hillsman of McGuinn Hillsman & Palefsky, a lead plaintiffs' counsel. "Our research has nonetheless shown that the Coast Guard's Marine Safety Office in Santa Barbara failed to comply with their own procedures, protocols and published checklists when they inspected and certified the Conception for service as a small passenger vessel authorized to carry passengers on overnight voyages along the Southern California coast."

The Santa Barbara-based Conception caught fire and burned to the waterline at 3 a.m. on Sept. 2, 2019. The victims were sleeping in berths on the lowest level of the boat. Five crew members stationed on higher levels survived.

Glen and Dana Fritzler, who operated the Conception under their company Truth Aquatics Inc., face lawsuits from victims' families. Nancy Fiedler et al. v. Truth Aquatics Inc. et al., 21STCV08121 (L.A. Super. Ct., filed March 1, 2021).

In the latest federal action under the Suits in Admiralty Act of 1920, families of those who died accuse the Coast Guard's safety division of certifying and authorizing the Conception to operate, despite several obvious deficiencies in electrical wiring, crew training, log-keeping, fire prevention and protection, escape routes and procedures.

Chief Warrant Officer Kurt Frederickson of the U.S. Coast Guard Media Relations declined to comment, citing the litigation.

According to the complaint, two cooks on board, Michael Kohls and Ryan Sims, said they woke from loud noises and distressed cries on that fateful morning. Sims said he witnessed sparks flying when he plugged his phone into one of the charging stations in the salon above the bunking deck.

"Kohls got up to investigate, but when he reached the top of the stairway from the sun deck down to the main deck, he saw flames licking at the stairs from the after starboard corner of the passenger accommodation," the lawsuit states.

One passenger, Berenice Felipe, tried to push open the escape hatch directly above her bunk but was trapped by the flames. The other passengers were trapped with a single 10-pound fire extinguisher to fight the blaze, according to the complaint.

The Conception was designed and built in Long Beach in 1981 and was redesigned in 2005. The boat was subject to annual Coast Guard inspections and certifications, and also had to undergo a five-year renewal inspection and a biannual hull and structural examination. The Coast Guard developed a book of procedures and protocols for inspections as well as checklists, the plaintiffs said. The Santa Barbara division also had its own checklists. The MSD in Santa Barbara issued Conception her last Certificate of Inspection less than a year before she burned, the complaint states.

The cramped sleeping quarters held 46 occupants and lacked windows, skylights or portholes. Ventilation came from a forced air system with intakes on the main deck and an air conditioning system that cooled and recirculated interior air. There were two residence-grade smoke alarms, but neither sent a signal to the pilothouse. There were two means of access to and from the bunkroom, and neither opened onto a weather deck, the lawsuit states.

The boat's inadequate electrical system was already overburdened by the addition of a nitrox generation system to the point where the galley stove and the nitrox system couldn't run at the same time. But passengers were allowed to use electrical systems to charge lithium-battery powered electronic devices, the lawsuit states.

Forrest Booth, maritime expert and partner at Kennedys Law LLP in San Francisco who is not involved in the action, said the plaintiffs' biggest uphill battle would be the Discretionary Function doctrine.

"The Coast Guard has the discretion given their authority from Congress to do what they feel is appropriate, for example, inspecting vessels and approving them," Booth said. "Once they make a decision in an area that's committed to their discretion, the courts are hesitant to second-guess them. That's what this action will boil down to."

Hillsman stressed Wednesday that the decision to bring in the U.S. Coast Guard as defendants was not taken lightly.

"We agonized over this for two years," he said. "Once we got a hold of the checklists, it became clear they didn't comply with their own procedures."

The federal action will now proceed parallel to the state action before a single federal judge. Unlike a general maritime claim against any other party, claims against a federal agency have a two-year statute of limitations. The plaintiffs had until Thursday to sue the Coast Guard.