About 40 minutes before the fatal duck-boat accident last year off Penn’s Landing, the first mate on a Delaware River tug made a pivotal error.
Matthew R. Devlin, 35, climbed down from a steering station that provided nearly perfect visibility and went into a wheelhouse 11 feet closer to the water, where his view of the river was significantly blocked by a 250-foot barge the tug was pushing upriver.
That “fateful decision,” according to a federal criminal charge issued Thursday, was a prime reason the barge struck a Ride the Ducks amphibious vessel loaded with 35 tourists, two of whom died.
Before the July 7, 2010, collision, Devlin was using a computer or a cellphone to check on the health of his son rather than keeping lookout. “He proceeded to violate numerous rules of seamanship and essentially drive blind in the direction of the stranded duck boat,” said the court document.
Devlin has agreed to plead guilty to “misconduct of a ship operator causing death,” the maritime-law version of manslaughter, U.S. Attorney Zane David Memeger said Wednesday.
Devlin would faces 37 to 46 months in prison. A date for sentencing has not been set.
The charge marks the end of the federal criminal investigation into the incident that marred last year’s summer tourism season and forced the ducks off the river. They returned this spring on a shorter route.
It also means no one from the duck company will face criminal charges.
Devlin has agreed to surrender his mariner’s license, Coast Guard Capt. Todd Gatlin said.
“He’s not going to be operating as a professional mariner,” said Gatlin. The plea agreement calls for that to be permanent.
The Catskill, N.Y., resident remains “terribly” upset by the accident and deaths, said his Philadelphia attorney, Frank DeSimone.
“He’s a parent,” said DeSimone, “and he thought he was going to lose his child. He understands how the other parents feel.”
About an hour before the collision, Devlin started using his cellphone – in violation of company regulations – to check on the condition of his 5-year-old son, who was undergoing what should have been a minor eye operation.
Shortly before noon, Devlin learned that the child had been partially deprived of oxygen for eight minutes. After speaking with relatives, just before 2 p.m. Devlin moved to the lower wheelhouse to access a portable computer. Steering the tug and barge from the lower wheelhouse also violated tug owner K-Sea Transportation’s rules.
Photos of the tug show that the barge extended above, to the right and then forward of the lower wheelhouse.
From the higher position there was a largely unobstructed view.
Families of the two tourists killed in the accident, Dora Schwendtner, 16, and Szabolcs Prem, 20, both of Hungary, are suing the tug operator, based in New Brunswick, N.J., and Ride the Ducks, based in Missouri.
In a statement, the victims’ families said they “are gratified that federal prosecutors have acted to hold one of the responsible parties accountable in this tragedy that should have been avoided.”
Devlin’s plea does not affect the civil case against K-Sea or Ride the Ducks, said the families’ attorney, Robert J. Mongeluzzi.
Mongeluzzi said Ride the Ducks still faces responsibility for initiating the string of events.
Investigators found that skipper Gary Fox shut down the engine because he thought there was a fire. Actually, they found, a cooling system cap had been left off and it was steam, not smoke, flowing out of the engine compartment.
“Their mechanic, performing his first inspection” of the duck, said Mongeluzzi, “forgot to put the radiator cap on.”
“That’s what started this series of events,” he said.
Details of the incident released Thursday provided new information.
Devlin was responsible for piloting the tug and keeping a “proper watch” while the captain, Ben Woods, and a deck hand were asleep. Two other crew members were in the galley. None had been asked to serve as a lookout, and it was Woods’ first day as a captain of any vessel.
Devlin, meanwhile, was “entirely distracted” by his son’s eye surgery and subsequent complication, said the detailed account by Assistant U.S. Attorneys Robert A. Zauzmer and John Pease.
About 11 a.m., the child’s oxygen intake “decreased significantly” because of a spasm in his throat. By 11:19, the problem was solved, and doctors believed there was no risk of brain damage.
“Devlin’s wife . . . believed otherwise” and thought the doctors were dismissing her concerns. She called her husband by cellphone, despite K-Sea rules prohibiting personnel from carrying a private phone on deck and while on watch. Devlin routinely violated that rule on other days, the court document says. K-Sea declined to comment, citing the court cases.
Devlin and his wife spoke for five minutes starting at 1:24 p.m. as the tug was heading north.
Then Devlin “spoke to his mother almost continually” about the consequences of oxygen deprivation. By 2:08, he had made eight calls to his mother.
It was just before 2 p.m. that Devlin moved to the lower wheelhouse, which was quieter and had computer access. Between 2:10 and 2:19, he searched for information about “loss of oxygen during surgery” and “loss of oxygen brain damage.”
Then, at 2:20, Devlin spoke to his son through his wife’s cellphone, as the child was on his way home. The child was “groggy but coherent.”
Almost immediately, Devlin contacted other relatives. “Devlin was on the phone with his mother when the barge ran over the duck boat at 2:37,” the document says.
“Devlin did not hear radio warnings of the impending collision” because he had turned down the marine radio volume. Fox, the duck master, had started making distress calls, which Devlin should have heard.
At 2:36, Fox broadcast, “To the northbound tug in front of Penn’s Landing, this is duck 34. I am at anchor. I am unable to maneuver. I am broken down. Over.”
There was no reply.
Fox has voluntarily surrendered his skipper’s license, and the Coast Guard may take “administrative” action, which could include revocation of his papers.
Chris Herschend, president of Ride the Ducks, said his firm was not trying to assign blame, “but to take measures to ensure this never happens again.”