Dive boat captain faces new charge in California's worst modern maritime disaster, which killed 34

More than three years after 34 people were killed in California's worst maritime disaster in modern history, the captain of the Conception dive boat faces a new federal indictment as a legal battle over his culpability rages on.

Jerry Nehl Boylan, 68, of Santa Barbara was indicted Tuesday by a federal grand jury on a charge of misconduct or neglect of a ship officer, according to the U.S. attorney's office for the Central District of California. He is accused of "a series of failures and the abandoning of his ship, which constituted 'misconduct, gross negligence, and inattention to his duties,'" prosecutors said.

The new court filing reinstates the charge against Boylan a month after a federal judge dismissed a previous indictment because prosecutors used "negligence" instead of "gross negligence" in their presentation to the grand jury.

Boylan was the captain of the Conception, which caught fire and sank near Santa Cruz Island on Sept. 2, 2019, killing 33 passengers and one crew member who were trapped below deck.

The captain, who prosecutors said was responsible for the safety of the boat and those aboard it, failed to have a night watch or roving patrol, conduct sufficient fire drills and crew training and provide firefighting instructions or directions to crew members after the blaze started, according to the indictment. Prosecutors said he didn't use firefighting equipment, including an ax and fire extinguisher that were next to him in the wheelhouse, or try to rescue passengers.

Boylan failed "to perform any lifesaving or firefighting activities whatsoever at at the time of the fire, even though he was uninjured," and didn't use the boat's address system to warn passengers and crew members about the fire, court documents stated.

The captain was the first crew member to abandon ship, while the passengers and a crew member were alive and trapped below deck in the boat's bunkroom, according to the indictment. After abandoning ship, he ordered crew members to follow him "instead of instructing them to fight the fire or engage in other lifesaving activities," court documents said.

Last month, U.S. District Judge George Wu's decision to dismiss the previous indictment without prejudice meant federal prosecutors could refile the case but needed to show gross negligence, a much higher standard, to convict Boylan.

Negligence amounts to careless mistakes or breaches of duty. In contrast, gross negligence requires a deliberate and reckless disregard for the safety or lives of others, and it must be wanton and willful.

Though the latter standard is used for common-law manslaughter cases, legal experts said seaman's manslaughter — as the "misconduct of a ship officer" statute is often known — requires prosecutors to show only simple negligence, or an omission in violation of a standard of care.

During the September hearing, Assistant U.S. Atty. Mark Williams, the lead prosecutor, told the judge that "it would be unprecedented in the 200-year history of the statute if anything other than ordinary negligence standard was applied."

Seaman’s manslaughter was enshrined after steamboat disasters killed hundreds of people in fires and boiler explosions. In 1838, Congress approved legislation that captains and crew could be criminally liable if anyone on the vessel died due to their misconduct, negligence or inattention to duties. The penalty is up to 10 years in prison.

Wu sided with Boylan's team of federal public defenders, who could not be reached for comment on the new indictment.

The dismissal had outraged the families of the disaster's victims, who expressed relief after the new indictment was handed down Tuesday.

"We are truly grateful to the grand jury for indicting Boylan again," the families said in a joint statement. "He completely disregarded his captain’s 'duty of care' with his negligence and inaction."

Boylan will be directed to appear in court for arraignment in the coming weeks.

Times staff writer Richard Winton contributed to this report.

This story originally appeared in Los Angeles Times.