Seaman's Manslaughter - Fascinating Indeed

[JetLaggedChef]

Jack,

I think I misspoke with how I worded that. A jury will absolutely convict you of any other crime because they think you might have done it. When it comes to murder, the emphasis on the defense is "beyond a reasonable doubt" because not only are you trying to prove they actually killed the person, you also have to prove they intended to kill the person. It's very very easy to create doubt as to someone's intentions, so a murder conviction is extremely difficult. Manslaughter is much easier because you only have to prove their actions led to the death. (I don't have references, but I remember him discussing one of his lectures from Vanderbilt a long time ago that in most states, murder was the only conviction that could possibly carry the death penalty so jurors were very focused on being sure beyond a reasonable doubt where as other crimes they could be released from prison if new evidence came forward at a later date.)

One thing you learn from the legal profession is that human recollection is the weakest form of evidence. It has to do with how memories are formed and recalled, even simple memories get recalled incorrectly. There's a ton of studies showing this. That's why you hear people's stories as "cute" then look at real forensic evidence to make a case.

I'm not trying to argue with anyone here, I've posted my opinions and I'll go. You guys can feel free to continue "what ifs", but I simply don't buy the story. There are way too many holes in it. When better evidence comes out, I'll re-evaluate my opinion.

I'm curious about the coast guard report though... do they actually do any type of forensics? Or do they simply make a half-baked determination based on witness accounts?

 

[reworb]

I've been an attorney for just over 30 years. All crimes not just murder require proof beyond a reasonable doubt, civil issues generally use the preponderance of the evidence standard.

There are different elements that need to be proved for murder than for manslaughter most notably (not counting the felony murder rule) intent. For murder you must intend to kill the victim ( there are a few exceptions such as wanton and depraved conduct).

 

[smokey73]

I don't know if this has been discussed before but Transdural patches for sea sickness can cause hallucinations. It might explain some of the symptoms noted before the MOB. My brother was undergoing chemo for cancer and had been unable to hold any food down. The doctor prescribed a sea sickness patch to put behind his ear. After about 12 hours he was speaking to people who where not in the room, including several who were dead! He immediately took off the patch and recovered fairly quicly. I am sure the defense will to into this but the prosecution may go there too since the patch was not prescribed for the individual. It doesn't change the consequences of the actions after the MOB occurred but it goes to show you that its really important to ask the right questions from a prospective crew member about a lot of things other than just their sailing expereince and to never give medications not prescribed for the individual.

 

[JetLaggedChef]

From the story:
"But Smith had a small opening. He turned the boat suddenly starboard, which knocked Pontious off his feet."

How fast would a boat need to be moving to cause someone to fall with a sudden turn? It certainly wasn't sitting still. It had forward momentum.

"He then climbed up and over the wiring railing and leaped off the port side of the boat. His head hit the railing on the way down."

What? Is the journalist misquoting this? Here's a picture of the boat. I'm struggling really hard to see how this was possible. https://www.tripadvisor.com/Attract...rron-Cruz_Bay_St_John_U_S_Virgin_Islands.html

"Smith said he watched Pontious sink. The water was lit well by a nearly full moon. "

"Watched" is a very interesting word for him to use. Not, "Smith said he saw him sink." To "watch" indicates you stood there and watched something, not that it happened immediately. Also, even in the deep blue Caribbean sea, with moonlight you cannot see below the surface at all. How would you know someone had actually sunk?

"Smith asked Pepper to shine the spotlight down. They saw nothing.

Shine the light down to what? If the boat was moving forward and they didn't bother to turn around, and they said they had already watched him sink, what exactly were they shining the light down for?

Perhaps it's just bad summarization from the journalist, but there is just simply too many holes in it to be 100% plausible as posted.

 

[dlochner]

Several comments.

The discussion about who is a sinker and who is a floater clearly illustrates human variability. Attempts to generalize from single events are fraught with problems. In my business we call them single case studies, useful for understanding one person, not very useful for understanding other people.

More importantly, this is a story of a human tragedy, not only for the victim and his friends and family, but equally so for the surviving crew. The level of stress experience by all was traumatic and on the order of the stress experienced in war. For several days they were extremely isolated in a small space with an increasingly agitated and threatening individual with weapons onboard. From the description, if they didn't fear for their life they weren't paying attention. By the time the MOB occurred, no one on the boat was capable of rational objective thought.

As a result of our experiences in the Viet Nam war, the Gulf War, the Afghan War and the Iraqi War, we know a lot about how stress affects the body, brain, and cognition, both during and after the stressful event. We even have a name for it PTSD. We know that single traumatic events or chronic stress will cause changes in biochemistry and biological structures, including the brain. We know that during trauma, memory is impaired, details that may normally be observed and remembered are not while the traumatic event dominates the memory. We know that perception changes, time dilates, what might be seconds long seems like minutes, minutes seem like hours. We know that people can become paralyzed into inaction during a traumatic event.

Was the captain culpable? Was the crew who gave him a patch culpable? Was the victim pushed over? Fall over? Jump over? Was it a suicide? Or was he trying to swim to shore? I'm not certain there are answers to these questions.

The memories of the survivors are marred by the trauma they experienced. It will take skillful interviewers to put together the events as they unfolded. It will take mental health professionals trained as trauma experts to help understand the reactions and thinking of the survivors and the victim.

In the end we have a human tragedy that continues. As the captain's girlfriend (wife?) reported, he is a changed man. That is what Post Traumatic Stress Disorder does, it forever changes a person.

It is up to the criminal justice system to determine guilt or innocence and what, if any, punishment is deserved. In meantime and forever, the lives of those on that boat have been changed forever and not for the good.

That is sad, that is the tragedy. Let us hope we never find ourselves in a similar position, few, if any of us, are prepared to deal with that level of stress and trauma.

 

[JetLaggedChef]

It will take skillful interviewers to put together the events as they unfolded. It will take mental health professionals trained as trauma experts to help understand the reactions and thinking of the survivors and the victim.

Well said. To be clear, I'm in no way trying to place blame on the captain and crew, I'm just saying there are too many holes in this story as reported by the journalist. These gaps could just be the way the journalist wrote the article, but nonetheless, the gaps are glaring.

 

[JamesG161]

Here's a picture of the boat.

I went to that link and the craft was a lease boat. I screen captured this shot from that link.
I did this since there were comments about the MOB "walking the deck" had me curious and you can see that a passenger can "walk the deck" unobstructed.

Also note the passengers in this shot have no PFD's, but it appears they are at anchor or slow power.
_____
Sink or swim...
Baring hypothermia and sharks, I can consciously float for hours [I did 5 hours in training] without a PFD. Body mass has nothing to do with it. The US Navy taught me "survival swimming". A maneuver called, perhaps badly, a "dead man's float". To rest from swimming or craps, you do that float technique.

Even a dead person will float back to surface within 48 hours. Thus the "concrete shoes" body disposal technique.

My point, the MOB, did not want, for some reason, to survive. [I would have been yelling and splashing HELP]
______

"Watched" is a very interesting word for him to use.

If I was at the helm at night, heard a splash, I would be watching the dimly lit water for the cause. I might have "watched" the MOB as we went by, at say 5 knots.

By the time, say 1 minute, to get a beam light, our travel distance would have been beyond a good beam light, on water surface, search. [no mention of sea state]

_____
It it obvious the Captain was being Paid to deliver a boat [he charted a Great Circle course that took him 300 miles off coast]. I had my boat delivered and The Captain had his Masters License for 500 Tons and Liability Insurance.
So to me, the reason for law suit is obvious...

GET MONEY!!

To kick in the Captain's Insurance, he must be shown to be at "some fault".
_____
At this repeating points, in this thread, perhaps we should start a new thread on...
"Captains actions on MOB"
and even list equipment needed for a 300 mile off shore trip.

Jim...

 

[JetLaggedChef]

@JamesG161 : I'd say the likelihood of another yawl in St. John named "the Cimarron" with a captain named Rick" is pretty slim. It seems it was actually his boat and he chartered it out of St. John when in season, which means he was not delivering someone else's boat.

If I was at the helm at night, heard a splash, I would be watching the dimly lit water for the cause. I might have "watched" the MOB as we went by, at say 5 knots.

From the article: "He then climbed up and over the wiring railing and leaped off the port side of the boat. His head hit the railing on the way down."

According to the article, they said they saw him jump over. I understand what you're saying, but there was no "watching" to see what the sound of the splash was, they already knew. (Not that it's relevant to the discussion, but I'm not sure I would react the same as you. If I'm in the middle of the ocean and I hear a loud splash, my first thought would be to verify all my crew was still on board, then to try to quickly figure out what (if anything) fell overboard.)

By the time, say 1 minute, to get a beam light, our travel distance would have been beyond a good beam light, on water surface, search.

Exactly. They said they didn't turn around because they "watched" him sink... but also claimed Captain Smith told his crew to shine the light in the water. That doesn't make any sense, which adds to the suspicion.

To kick in the Captain's Insurance, he must be shown to be at "some fault".

Is this true? I don't have my captain's license but I only got my boat a few months ago and read the coverage really carefully. I don't recall seeing anything in my coverage that says I have to be at any fault to pay out liability if someone is injured or killed on my boat. Would that be different for a captain's license or did I overlook that in my policy?

 

[Davidasailor26]

If I was at the helm at night, heard a splash, I would be watching the dimly lit water for the cause.

Maybe. But the impression I got from the rest of the article was that this guy would've been watched pretty closely, and there probably wasn't much mystery about what made the splash.

So to me, the reason for law suit is obvious...

GET MONEY!!

I guess following the money is usually a good idea, but this is a criminal case, not a lawsuit. The article does say that a lawsuit was filed and dismissed, and that there could be another, but that is unrelated.

 

[JamesG161]

Is this true? I don't have my captain's license

My professional delivery Captain, had is 500 ton MASTERS license, plus his Insurance[ essentially malpractice]. I had my new boat insurance company check his credential and policy. I wanted to make sure my new boat was fully insured with my Master Captain during delivery.
Long story, but I had to check the delivery Captain by recommendation, phone conversations, his credentials and insurance. I had never physically seen my boat, the repair crew, so it was all "Trust" backed up by their insurance policy and my insurance company's approval.
A civil suit must have "facts" to show liability. No facts, no suit.

Get facts from criminal side, new civil suit

Civil Suit gets Money!
_____
I would not leave the helm on a moving boat. I might have "Watched" him go by, then note [I have a MOB button] GPS and time. Then take recovery actions.
Jim...

 

[JamesG161]

It seems it was actually his boat and he chartered it out of St. John when in season

That is even more insurance coverage than a delivery Master's. It contains passenger liability and injury.

Use the civil courts, not for revenge, but to ....
Get Money!!

Jim...

PS: I suspect Smith was paying his crew too. Faster return to home, sooner he can charter it again. Thus providing a "motivation" for no rescue.

 

[jssailem]

I had my new boat insurance company check his credential and policy.

Now that is the sign of a smart new owner who understands how to use the Insurance system to support him.

Civil Suit gets Money!

Is that why Attorneys are some times seen chasing ambulances?

I would not leave the helm on a moving boat. I might have "Watched" him go by, then note [I have a MOB button] GPS and time. Then take recovery actions.

Based on the journalists story, this sounds like the area that perks the prosecutor’s interest. Failure to follow reasonable efforts to search for the MOB would be an issue and require some serious explaining.