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Is the Duck Boat Tragedy a Seaman’s Manslaughter Case?

On Friday September 4, 2020, Chief Magistrate Judge David Rush of the Western District of Missouri issued a report and recommendation that all federal charges against the master of the duck boat that sank on Table Rock Lake Missouri in 2018 be dropped for lack of admiralty jurisdiction.   The duck boat tragedy on July 19, 2018 resulted in the deaths of seventeen (17) people who were onboard the Stretch Duck 7 when it sank during a storm.   Kenneth McKee was the master of the vessel during the incident and was charged in a 47-count Second Superseding Indictment alleging violations of the Seaman’s Manslaughter statute (18 U.S.C. § 1115) and the gross negligent operation of a vessel (46 U.S.C. § 2302(b), a misdemeanor).  In addition, Charles Baltzell (the operations supervisor and manager) and Curtis Lanham (the general manager of Ride the Ducks Branson) were charged with the same conduct on an aiding and abetting theory of liability (18 U.S.C. § 2).

The Seaman’s Manslaughter Act was first enacted by Congress in the early 19th Century to “provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam.” Act of July 7, 1838, ch. 191, 5 Stat. 304 (1838).  Congress intended criminal liability to attach to “every captain, engineer, pilot, or other person employed. . .”, who negligently caused the death of persons on board a vessel. Id. The degree of negligence required was purposefully lower than other manslaughter statutes due to the inherently dangerous nature of operating a wooden vessel filled with “combustible materials.” Van Shaick v. United States, 159 F. 847, 851 (2d. Cir. 1908).  Courts have held that the historical application of the statute is to hold “any degree of negligence” by a person in charge of the operation of a vessel responsible for the death of a person.  United States v. O’Keefe, 426 F.3d 274, 278 (5th Cir. 2005)(collecting cases).  A conviction under the statute can result in a fine and/or imprisonment of up to ten (10) years.

In the case, the Defendants moved to dismiss the Indictment on numerous grounds, including lack of admiralty jurisdiction, as the alleged crimes occurred on Table Rock Lake which is not “navigable” as a matter of law under binding Eighth Circuit precedent, and therefore the federal court lacks subject matter jurisdiction.  Magistrate Judge Rush issued a twenty-one (21) page report and recommendation which carefully analyzed the Court’s exercise of subject matter jurisdiction in the case and concluded that the charges against the Defendants should be dismissed.  In a two-part analysis, the Court found that there was general criminal subject matter jurisdiction over the charges because they are offenses against the laws of the United States.  However, that is not the end of the inquiry and in order to proceed with the case to a jury, the prescriptive reach of the statute (and by extension the Court’s jurisdiction to hear the case) is defined by whether the Court has admiralty jurisdiction.

In analyzing the Seaman’s Manslaughter Act, the Court found that the statute in question contains “no reference to high seas, territorial waters, or admiralty jurisdiction. In fact, the statute doesn’t even mention water.”  However, in reviewing the statute’s history and relying extensively on the Fourth Circuit Court of Appeals decision in United States v Allied Towing, 602 F.2d 612 (4th Cir. 1979), Magistrate Judge Rush ruled that the statute was enacted pursuant to the ability of Congress to create and modify admiralty laws.  Accordingly, in order to have jurisdiction to prosecute the charged offenses, the federal court must have admiralty jurisdiction to hear the case.  The Court next reviewed the applicable standard to determine whether there was admiralty jurisdiction present.  Article III, § 2 of the Constitution confers admiralty jurisdiction over all admiralty and maritime cases to the federal courts involving waters that navigable in fact.  To determine navigability, Courts in the Eighth Circuit utilize the contemporary navigability test which limits the concept of “navigability” to a “present capability of waters to sustain commercial shipping.”  The Court ruled that the question of navigability on Table Rock Lake has been well-settled pursuant to binding Eighth Circuit precedent for over thirty-five (35) years, as it is a lake that has been used exclusively for recreational activities and not in any way capable of supporting commercial shipping. Edwards v. Hurtel, 724 F.2d 689, 689-90 (8th Cir. 1984).  A fact which has not changed since the Edwards case was decided by an en banc panel of the Eighth Circuit.

The Court also rejected the government’s argument that the Commerce Clause of the Constitution could in some way impart jurisdiction over the crimes, ruling that the clause relates to the regulatory powers of Congress, not the subject matter jurisdiction of the Court.  Magistrate Judge Rush lamented the tragic death of the seventeen (17) men, women, and children on Table Rock Lake, but ruled that there was no direct application of federal law to this case given the lack of admiralty jurisdiction.  As such, the Court ruled that the right to prosecute Defendants for the tragedy is reserved for the State of Missouri’s general police powers and recommended dismissal of all charges.  Under the federal rules of criminal procedure, the United States has fourteen (14) days to file objections to the Magistrate Judge’s Report and Recommendation (i.e. on or before September 18, 2020).  Assuming the government makes objections, the District Court must consider de novo any objection to the recommendation and may “accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.”

Given the complex statutory and jurisdictional issues pending in this matter and the fact that the government pursued forty-seven (47) counts in this case, it is anticipated the United States will file objections to the District Judge.

A copy of the Report and Recommendation can be found here.