In an indictment that referenced a little-known law dating back to the age of steamships, Kenneth Scott McKee, the captain of the duck boat that sank during a severe July thunderstorm in southwest Missouri, was charged Thursday with misconduct and negligence.
Seventeen people between the ages of 1 and 76, including nine members of one Indiana family, died on July 19 when the boat capsized amid high winds and began taking on water, making it one of the deadliest duck boat accidents in decades. "Each of the 17 counts in this indictment represents a life that was lost when Stretch Duck 7 sank while being piloted by Mr. McKee," Tim Garrison, U.S. attorney for the Western District of Missouri, said at a Thursday news conference.
McKee faces a potential sentence of up to 10 years in prison for each count.
The indictment said that McKee had failed to properly assess the weather forecast, ignoring warnings of high winds and lightning when he took the boat out onto Table Rock Lake, a popular tourist destination near Branson, Missouri. When the storm struck, McKee allegedly failed to speed up and head for shore. Later, when the boat's bilge alarm sounded, indicating that it was in danger of sinking, McKee allegedly failed to tell the passengers to put on life jackets and to prepare to abandon the ship.
McKee's attorney, J.R. Hobbs, told the Springfield News-Leader that McKee would plead not guilty, but declined further comment.
The statute that McKee was charged under is known colloquially as seaman's manslaughter, and dates back to the era when steamboat disasters were commonplace, killing hundreds of people in fires and boiler explosions. In 1838, Congress passed legislation stating that captains and crew could be held criminally liable if anyone on board died as a result of their misconduct, negligence, or attention to their duties.
"Until recently, prosecutions under the Seaman's Manslaughter Statute were a rare event," Jeanne Grasso, a partner at Blank Rome LLP who specializes in maritime law, wrote in a 2005 article in Benedict's Maritime Bulletin. From 1848 to 1990, she wrote, there had been only eight major prosecutions under the law. But between 1998 and 2005, the statute was used to prosecute boat captains and crew members in seven major cases.
After three people died when a charter fishing boat sunk in Oregon's Winchester Bay in 2005, federal prosecutors charged the captain, Richard J. Oba, with three counts of seaman's manslaughter. "The sinking of the Sydney Mae II is being used by the federal authorities to send a message to thousands of boat operators that they can face years in prison if people die while on board a ship under their command," the New York Times reported, citing an anonymous Justice Department official. Oba was ultimately sentenced to six years in prison, which federal prosecutors said was "believed to be the longest ever in this type of case."
Since the statute asks the government to prove simple negligence rather than gross negligence, critics say it holds mariners to a higher standard than workers in other industries and makes it more likely that they'll face criminal charges for a job-related accident. "You can go to jail working on a ship for something you cannot go to jail for working on a bus or a train," Douglas Stevenson, the director of the Seamen's Church Institute's Center for Seafarers' Rights, told trade journal Professional Mariner in 2007. The center, as well as other maritime industry groups, lobbied Congress to modify the statute that year but were unsuccessful.
After the July tragedy at Table Rock Lake, survivors and family members of the victims questioned McKee's decision to take the boat out when thunderstorms were predicted. Carolyn Coleman, who lost nine family members spanning three generations, told The Washington Post in July that she believed the catastrophe could easily have been avoided.
"Why did that boat even go out?" she said. "When you're on vacation and you're touring, you expect whoever's running these facilities to be alert on weather and anything else in the surroundings that could bring harm to anyone."
Branson Ride the Ducks, a division of Ripley Entertainment, currently faces multiple lawsuits from Coleman's family and the relatives of other victims. Those proceedings involve a different – and equally controversial – piece of maritime law that dates back to the 19th century.
Last month, attorneys for Ripley Entertainment invoked the Limitation of Liability Act of 1851 in court filings, arguing that the company does not owe any damages to the victims' families because the boat carried no cargo and now has no value. Attorneys for the victims loudly criticized the move, while a spokesperson for Ripley Entertainment argued that it was "common in claims related to maritime incidents" and said that the company was already working to settle with the victims.
"We recognize the importance of the grand jury process and are continuing to cooperate with the US Attorney's Office and other authorities as they determine the facts surrounding the accident that occurred on July 19th," Suzanne Smagala-Potts, a spokeswoman for Ripley Entertainment, wrote in a Thursday email to The Washington Post. "Above all, we are committed to supporting all our guests, employees, and families who were affected by the accident. We offer our sincere condolences to them, and to the entire community of Branson, Missouri."