The captain of the Conception liveaboard, which burned off the coast of California in 2019 killing 34 people, has asked a federal appeals panel to overturn his seaman’s manslaughter conviction.
Jerry Boylan, 71, was sentenced to four years in prison after a jury found him guilty of gross negligence in the deaths of 33 passengers and one crew member during an overnight dive trip near Santa Barbara.
He has been allowed to remain at home while his appeal proceeds, after the trial judge agreed there was a ‘substantial question of law’ about whether jurors should have been instructed that Boylan’s actions needed to be the direct cause of the fatalities.
During a hearing in Pasadena, Boylan’s lawyer, federal public defender Hunter Haney, argued that errors in the jury instructions and the prosecution’s focus on government regulations, rather than industry standards for dive vessels, justified overturning the verdict.
‘The regulations played an outsize role in this trial and in the instructions,’ Haney told the panel, ‘harmfully reducing Mr Boylan’s industry standard evidence to a mere afterthought.’
Two members of the appellate panel questioned whether any alleged errors would have mattered, given the weight of evidence about Boylan’s conduct.
Judge Consuelo Callahan noted testimony that the captain had failed to train his crew in fire response, with several walking past firehose stations after waking to find the vessel ablaze.
‘It would seem that it would be hard for a jury to do anything other than to convict even if there had been some errors,’ Callahan said. ‘It seems pretty undisputed that there was just a total lack of training and that the captain vacated pretty darn quickly.’
Judge Lucy Koh pointed to evidence that only one of the vessel’s six fire extinguishers was used — by a passenger below deck — and that neither of the fire hoses on the main deck was deployed.
She also noted that Boylan failed to alert passengers using the public-address system, despite it being next to the phone he used to contact the Coast Guard.
‘These are facts,’ Koh told Boylan’s attorney. ‘So, why wouldn’t there be a harmless error if Captain Boylan is first to abandon ship, doesn’t even notify any of the passengers that there’s a fire, and the PA system is right next to the phone where he called the Coast Guard?’
Assistant U.S. Attorney Alexander Robbins argued that the legal distinctions raised on appeal had no bearing on the outcome. ‘It didn’t affect the arguments, it didn’t affect how the parties framed their arguments, it didn’t affect anything,’ Robbins told the panel. ‘It was literally irrelevant to the jury’s determination.’
Conception fire background
The MV Conception, a 23 metres (75ft) plywood and fibreglass vessel, was anchored near California’s Channel Islands when a fire broke out on the main deck at around 3am on 2 September 2019. The passengers were asleep in the bunk room below deck.
Boylan and four crew members were sleeping on the upper deck, while a sixth crew member was in the bunk room with the passengers.
A galley hand, Mikey Kholes, was first to notice the flames and raised the alarm, but escape routes were already blocked. Crew members were forced to jump or climb down to the main deck, where the entrance to the salon was engulfed in fire.
Boylan made a distress call before leaving the wheelhouse as smoke filled the area. Prosecutors say the passengers were awake and trying to escape when the crew abandoned the burning vessel.
Their bodies were recovered by rescue divers in the days that followed, with several discovered to have been embracing as they succumbed to the fire. A Santa Barbara County coroner determined that all 34 victims died from smoke inhalation.
A written decision from the appeals court will be issued at a later date.
