Andrew J. Barberi had about 750 people aboard when it crashed into a pier on Staten Island.
The 310-foot-long double-ended ferry was transporting about 750 people when the vessel’s assistant captain lost consciousness as it approached Staten Island. The vessel did not slow down as it neared the ferry slips, striking a concrete maintenance pier at near cruising speed. Elements of the pier cut through the starboard passenger deck from nearly bow to stern.
The director of ferry operations was indicted on Aug. 4 on 11 counts of seaman’s manslaughter and three counts of lying to investigators. The indictments were announced by Roslynn R. Mauskopf, U.S. Attorney for the Eastern District of New York.
The port captain, who is the brother-in-law of the director of ferry operations, was charged with obstruction of justice and lying to investigators. Both the director of operations and the port captain pleaded not guilty at a hearing on Aug. 5.
A major part of the government’s case is its contention that the director of operations did not issue, distribute to employees or enforce a longstanding Staten Island Ferry rule that requires two licensed pilots in the operational pilothouse while ferries are underway, and therefore failed to protect the safety of passengers.
The assistant captain pleaded guilty on Aug. 4 to criminal negligence in the deaths of the 11 passengers. The assistant captain and the director of operations were charged under the federal Seaman’s Manslaughter Statute, a seldom-used law dating back to 1838.
This law protects passengers at sea by making it a felony to cause the death of any person “through misconduct, negligence or inattention to duty,” according to the U.S. Attorney’s Office. The law applies not just to vessel crew but to owners and public officers. If the owner is a corporation, the law allows the government to pursue criminal charges against executive officers of the corporation “who knowingly and willfully cause or allow such negligence to take place.”
On the day of the crash, there were two officers aboard licensed to operate the ferry, a captain and an assistant captain. The government maintains that when the accident occurred, the captain was not in the operating pilothouse with the assistant captain, who was at the controls. The captain on the vessel was indicted for lying to the Coast Guard by telling investigators he was in the operating pilothouse, according to Mauskopf.
However, on Aug. 19, the U.S. Attorney’s Office filed an agreement that would ultimately dismiss the single charge against the captain, if he fully cooperates as a witness for the prosecution. As part of the agreement, the captain would perform 200 hours of community service and lose his Coast Guard license for three years. The captain was fired by the city in November for failing to cooperate with investigators.
When he pleaded guilty, the assistant captain “admitted that on the day of the crash, he was in no condition to operate the Barberi,” Mauskopf said in prepared remarks at a press conference on Aug. 4. He was extremely tired and suffering from a great deal of back pain. As a result of his physical condition and the drugs he was taking, the assistant captain admitted he had lost consciousness while at the helm and was not in control when the vessel struck the dock.
The day of the crash he had taken Tramadol, which he had taken since 2000 for back pain, and Tylenol PM. The drugs had the potential to create drowsiness, dizziness and confusion, the U.S. attorney said. The assistant captain also was taking Triamterene for high blood pressure and Ambien for insomnia, according to Mauskopf.
The assistant captain also admitted that he lied about his medical history to the Coast Guard when applying for his license three years before the crash. He said he did not tell the Coast Guard he had high blood pressure and was on prescription medication because he feared losing his job. He resigned his job on Aug. 4, the day he pleaded guilty.
Each count of manslaughter carries a potential 10-year sentence, but Judge Edward R. Korman said in court that the assistant captain will more likely face 33 to 41 months in prison. His private doctor also was indicted for making false statements by signing a medical form that did not reveal the assistant captain’s medical condition and prescription drug use. The doctor pleaded not guilty on Aug. 5.
The director of ferry operations was indicted because he failed to ensure the safety of Staten Island Ferry operations, according to Mauskopf. Specifically, he is accused of failing to issue ferry service regulations to guard against a captain’s sudden disability, so that some other crewmember could pilot the vessel or summon help if the ferry’s operator passed out. “This was a tragedy waiting to happen,” said Mauskopf. “The crash of the Barberi had foreseeable causes,” which the director of operations “saw and ignored.”
The U.S. attorney said the ferry service’s two-pilot rule, requiring two Coast Guardâ€“licensed pilots to be in the operating pilothouse, was in place from 1958 through 1987.
However, the indictment alleges that beginning in the mid-1990s, when the director of operations first took that job, “the ferry stopped disseminating, training on and enforcing these rules,” Mauskopf said.
At night, many captains and assistant captains would split the shift, with one captain working and the other captain asleep, she said.
The director of operations was aware that these practices varied from captain to captain and vessel to vessel, but did nothing about it, according to the U.S. attorney.
The director of operations, who began work at the ferry in 1979, violated the two-pilot rule when he worked as a captain, the indictment said. He was a boat captain from 1996 to 1999 and for part of 2001. During these periods, he was not present with the assistant captain in the operating pilothouse at all times, according to the indictment. In good weather, when the vessel was underway with passengers, he was not in the operating pilothouse as much as half the time, according to the indictment.
In 2000, when he was serving as port captain, he worked with the then-director of operations to draft standard operating procedures (SOPs) for the ferry service. In June 2001, when he again became director, the SOPs had not been finalized, issued or distributed. In 2002, he sent these draft SOPs to the Coast Guard and New York City Department of Transportation as part of a Coast Guard review of security procedures, but the SOPs were still never issued or disseminated to the crew, Mauskopf stated.
The ferry director is widely recognized as conscientious, said Thomas Fitzpatrick, his lawyer. “The manslaughter charges against him are totally inappropriate,” Fitzpatrick said.
Nicholas M. DeFeis, attorney for the port captain, said his client “didn’t intentionally seek to mislead anyone.”
William Bennett, one of the lawyers for the captain, said it was appropriate that his client was not found to have been responsible for the accident, because his actions “contributed in no way to the accident.” The two-captain rule was only in draft form and never handed down to ferry workers, Bennett said.
Although the Seaman’s Manslaughter Statue is rarely used, this prosecution could start a trend, according to Donald Kennedy, a maritime lawyer with the New York City office of Carter, Ledyard & Milburn LLP.
“I think everybody’s got to be on their toes here and start looking at what they have for safety procedures in the books,” Kennedy said. “It looks good in the books, but is it used out there in the field, and is it reviewed periodically?”
Legally, it would have been different if it were just a question of the pilot becoming incapacitated. “The City of New York is going to get rapped because this executive wasn’t following through procedures,” he said. “Safety procedures were established, or in the process of being established, and were ignored. I think the city is on thin ice.”
The possibility that this case may set a national precedent worries Charles Chillemi, president of Local 333, United Marine Division of the International Longshoremen’s Association, AFL-CIO. “This is going to have an impact on the whole marine industry,” said Chillemi, whose local represents 287 deck hands and oilers at the Staten Island Ferry. “How can you indict someone when they weren’t even there? How can they be responsible for an accident? If you’re going to an investigation of malfeasance of the guys who are in charge, they ought to go higher up.”
He said marine investigations should focus on correcting problems, not indicting people.
On this issue, the City of New York agrees. The city acknowledges that the ferry’s operations can be improved. That acknowledgement “does not mean, and we do not believe” that the director of operations “was guilty of manslaughter in the performance of his duties,” said Michael A. Cardozo, New York City’s Corporation Counsel, in a press release.