Two insurance firms representing the company whose water taxi overturned in Baltimore's Inner Harbor in 2004, killing five people, said they plan to sue the U.S. Coast Guard today, alleging that the maritime service certified the vessel for too many passengers.
The companies, which paid confidential settlements to the victims on board the Lady D after it capsized in a sudden storm between Fort McHenry and Fells Point, said the vessel was not properly tested for stability by the Coast Guard before it was put to use.
And, the lawsuit is expected to say, it never should have been permitted to carry 25 people.
If successful, the suit could shift at least some attention for the accident away from the captain, Francis Deppner, who cast off from the dock at the fort despite heavy winds, dark clouds and, according to passenger recollections of the day, lightning.
James Piper Bond, chief executive of the Living Classrooms Foundation, owner of Seaport Taxi before the water taxi operations were ceased in 2004, issued a statement yesterday saying the lawsuit would be filed in U.S. District Court.
"The lawsuit ... focuses on the fact that the U.S. Coast Guard, in failing to follow its own procedures and policies, certified the carrying capacity of the Lady D at a grossly overstated number," the statement read.
The Coast Guard is required to inspect, certify and regulate boats constructed in the United States, and that includes conducting stability tests to determine how many passengers a vessel can safely carry. Those tests can be waived if a sister ship has been tested, according to a copy of the anticipated lawsuit provided to The Sun.
Attorneys for the insurance companies argue that the Lady D was never tested and that the vessel tested in its stead as a sister ship, a pontoon boat named Fells Point Princess, was significantly different.
The Fells Point Princess was built by a high school shop teacher in the 1980's; the Lady D was built by a Pennsylvania firm several years later, the draft lawsuit states.
Moreover, attorneys allege in the documents that the Coast Guard erroneously calculated weight restrictions based on mono-hull vessels, even though both boats have pontoons - an important design difference. In a pontoon boat, extra weight raises the center of gravity, making it more unstable in high winds.
An attorney for the insurance companies, Robert B. Hopkins, would not comment. He also would not say how much money would be sought in the case.
"The policy of our law firm is not to discuss any ongoing litigation," he said. The lead plaintiffs are expected to be the Indemnity Insurance Co. of North America, of Philadelphia, and the Continental Insurance Co., of Chicago.
Coast Guard officials could not be reached for comment.
The announcement of the lawsuit comes weeks before the National Transportation Safety Board is expected to conclude its investigation into the accident. A spokesman for the agency, Ted Lopatkiewicz, said that report could be available as soon as March 7, when the board holds its next meeting.
An initial NTSB report released in 2004 found the Lady D was carrying 700 pounds too much weight. Although the captain was operating within the 25-person limit, that limit was based on outdated estimates of the average passenger's weight, the agency found.
The Coast Guard office ordered Seaport Taxi to reduce capacity on its boats after the accident.
David G. Brown, who said he uses a similar pontoon boat at his Maumee River Navigation Company - a water taxi service in Toledo, Ohio - said he is uncomfortable operating the vessel with more than 20 people on board. But he said he believes the route, specifically the expansive waters near Fort McHenry, was a more likely factor in the accident than overcrowding.
Brown, who is writing a book on pontoon and deckboat use, said that once a boat is under way, the captain is ultimately responsible for safe passage, including determining how many passengers can safely be on board - regardless of the Coast Guard certification.
"It's a stretch," Brown said of the insurance companies' argument. "There is a little bit of truth to that."
The lawsuit would put Living Classrooms in the unusual position of suing its regulator, the Coast Guard, for not regulating well enough.
In many cases, the government can invoke the doctrine of "sovereign immunity" to avoid lawsuits where it has not consented to be sued. But under the Federal Tort Claims Act, a plaintiff can file a claim against an agency alleging that a federal employee's negligence led to a wrongful death.
And there is precedent showing the Coast Guard can be sued successfully.
In 2002, after losing at trial and on appeal, the U.S. government agreed to pay $21 million to the families of four people who died off the coast of South Carolina in 1997 when the sailboat Morning Dew struck jetties outside Charleston Harbor.
A federal court found that the Coast Guard, while not responsible for the accident, had failed to mount a rescue effort after receiving a mayday radio call from one of the victims - a 13-year-old boy. The Coast Guard's actions were criticized by the National Transportation Safety Board and led to a nationwide examination of maritime rescue policies.
In 2001, the Coast Guard reached an undisclosed settlement with relatives of victims of a tour boat accident that killed 13 people on Arkansas' Lake Hamilton in 1999.
The NTSB concluded that the Coast Guard's "inadequate and cursory" inspection was a contributing factor.