More on the Duck Boat Crash

Some people have written or called about the Nov. 1 article on the sentencing of the tugboat pilot charged in the July 7, 2010 incident in which he drove an empty barge over a duck boat in the Delaware off Penn’s Landing in Philadelphia, killing two Hungarian tourists.

Most wondered why pilot Matthew Devlin was the only one charged. Why not the captain of the duck boat who, stalled and fearing an engine fire, anchored in the shipping lane of a river still heavily used by commercial vessels?

Though Devlin, 35, pleaded guilty to the federal maritime law equivalent of involuntary manslaughter, even defense attorney Frank DeSimone mused over the fairness of assigning all criminal liability for the accident to Devlin.

Assistant U.S. Attorney Robert Zauzmer spent about 20 minutes before U.S. District Judge Legrome D. Davis, narrating a video of the accident taken by an experimental video system set up by the U.S. Army atop the Adventure Aquarium across the Delaware River in Camden. The video, about 10 minutes long, showed the six minutes before the northbound tugboat owned by K-Sea Transportation Partners L.P., pushing a 250-foot empty municipal waste barge, ran over the 33-foot long duck boat containing 37 passengers and crew.

Zauzmer said there was no question that mistakes were made aboard the amphibious vehicle operated by Ride the Ducks International L.L.C.

A mechanic failed to secure a surge-tank pressure cap, which caused steam to pour from the engine. Capt. Gary Fox thought the steam was smoke and turned off the engine to avoid a fire and anchored the vessel off Penn’s Landing. Fox called his company’s command center for a tow but did not immediately call the U.S. Coast Guard to say he was dead in a shipping lane.

Devlin testified that he was upset and distracted after his wife called him at 12:50 p.m. that day with news that their son Jacob, then 5, had been deprived of oxygen for eight minutes while undergoing corrective eye surgery.

Though the child recovered, Devlin and his wife testified that they were hysterical, fearing he was brain-dead.

Devlin said he went from the tug’s upper wheel house to the lower wheel house, which had limited visibility, because it was quieter. He said he received and made up to 20 calls to relatives and researched oxygen deprivation on the tug’s computer. Devlin said he also turned down the volume of the two-band marine emergency radio and thus never heard calls from Fox warning of the impending crash.

Ultimately, Zauzmer said – and Davis agreed – the question came down to one of relative negligence and the question of who might have avoided the accident.

And the video, Zauzmer said, showed that in the crucial six minutes before the tug and barge traveled one nautical mile and ran over the duck boat, Devlin was the one who could have changed the outcome. But by then, the prosecutor said, the tug pilot had gone below and focused on his son, even turning down the radio volume.

“Everyone saw this happening but you,” the judge told Devlin.

Zauzmer noted that the tug and barge were far more maneuverable than their size suggested. Within four minutes of the crash, the prosecutor said, the tug captain took command from Devlin and turned tug and barge 180 degrees to face south and remained on the scene.

The judge also cited Devlin’s own testimony that he had previously asked the tug captain to be relieved of duty when he learned of the birth of both children. The captain granted his requests and Devlin said he was not penalized.

Yet, Davis said, Devlin never asked to be relieved during the crisis involving his son: “You should have stepped away. You could have stepped away. You were trained to step away … I don’t know why you didn’t.”

Devlin will surrender Jan. 5 to begin serving his sentence of a year and one day at a federal prison to be designated. Non-lawyers might find that sentence a bit vindictive: an extra day in prison like salt rubbed in a wound.

In fact, Davis’ sentence was a break for Devlin. Federal prison rules say that any person sentenced to less than one year in prison must serve the entire sentence. Any sentence over a year means the person qualifies for time off for good behavior – reducing the sentence by up to 15 percent.

Devlin could be home with his wife and two young children in Catskill, N.Y. by next Halloween.

Still, the legal troubles facing Devlin and his company – and Fox and his company – are not over.

Devlin has lost his marine pilot’s license; Fox has surrendered his license. And civil lawsuits are pending in federal court in Philadelphia against Ride the Ducks International and K-Sea Transportation by the families of the two victims of the crash and the 35 who survived.

Zauzmer had one other insight to offer about the miracle of how so many people survived the horrific crash. According to the prosecutor, when the barge struck the duck boat the smaller vessel went under the surface and rolled to port – toward the New Jersey side of the river – instead of being dragged along under the keel of the 250-foot barge.

The passengers were thrown away from the barge and from the pushing tug boat and its propellers, Zauzmer said, and the duck boat was “recovered largely intact from the river bottom.”