Estate of Staten Island Ferry Crash Victim Settles Wrongful Death Claim Against the City of New York

Press Release outlines case and says: Widow and four children reportedly to receive USD $8,750,000.M

New York, NY -- August 25, 2008 -- JOHN J. HESSION, ESQ. and JAMES E. RYAN, ESQ., of Dougherty, Ryan, Giuffra, Zambito and Hession, Esqs., New York, New York, and ANTHONY BISIGNANO, ESQ., of Bosco, Bisignano & Mascolo, Esqs., Staten Island, New York, announced today the settlement of a wrongful death action arising out of the October 15, 2003 crash of the Staten Island Ferry boat, the M/V Andrew J. Barberi, on behalf of The ESTATE OF JOHN P. HEALY, against the City of New York in the amount of EIGHT MILLION SEVEN HUNDRED FIFTY THOUSAND ($8,750,000.00) DOLLARS.

A PRESS CONFERENCE with KATHY HEALY, the wife of the late John P. Healy, will take place on MONDAY, AUGUST 25, 2008, at 11:00 a.m., outside the United States Eastern District, Federal Courthouse, 225 Cadman Plaza East, Brooklyn, New York.

The Staten Island Ferry Crash

On October 15, 2003 at approximately 3:15 p.m., the Andrew J. Barberi veered off course on its trip from Manhattan to Staten Island and crashed into a concrete maintenance pier. When the ferry was about 1,000 yards from its intended point of docking at the St. George Terminal it passed the KV buoy.(1) At this point in the voyage the ferry would normally slow its engines and prepare for docking. The "backing down" of the engines was an event that could be heard and felt by all on board the boat. The crew members used this event as a signal that they were ready to dock.

The Pilot Became Incapacitated

Unfortunately, on this date the engines never slowed and there was no other system in place to warn the crew members to prepare for docking. Assistant Captain Smith lapsed into a diminished state of consciousness while piloting the Andrew J. Barberi, due to a combination of his own fatigue and taking medications (2) that caused drowsiness and disorientation. The vessel was off course for nearly two minutes after Smith became disabled. The ferry crashed into a maintenance pier approximately 600 yards from its intended docking point at Slip 5 at the St. George Ferry Terminal.

On August 4, 2004, Assistant Captain Richard Smith plead guilty to eleven (11) counts of manslaughter under the Seaman's Manslaughter Statute, 18 U.S.C. § 1115, and one (1) count of giving a false statement to a government officer, under 18 U.S.C. § 1001. At his plea hearing, Smith admitted (1) that his recklessness, negligence, misconduct and inattention to duty caused the deaths of 11 passengers on October 15, 2003, when he lapsed into a diminished state of consciousness while piloting the Andrew J. Barberi.3 Smith served an 18-month sentence. (3)

There Were No Look-Outs Posted

There were no look-outs in the pilot house when Smith passed out. There was no one to take the wheel or call for help. Joseph Selch, a deck hand, was assigned to act as a lookout on the journey, but Smith gave him permission to leave the pilot house so he could untie a broken handle of an exit door used by passengers disembarking from the ferry. Previous to that, Mate Robert Rush entered the pilot house and took a seat on a low slung bench near the rear of the pilot house known as the "settee." Supposedly, Rush was in the pilot house to write work orders for repair of damaged doors, a gate on the New York end of the ferry which was jamming, and some defective lights. He never actually wrote the work orders but instead he read a newspaper. He could not see out the windows of the boat because the "settee" was so low. He never saw Smith black out and he never saw the crash coming. This left Smith solely responsible for making sure that the Andrew J. Barberi safely made its journey.

The Two Pilot Rule

Historically, the internal rules of the Staten Island Ferry required that the captain and assistant captain be present in the operating pilot house while the vessel is under way. This is known as the "Two-Pilot Rule". Its obvious purpose is to ensure that if the pilot was suddenly disabled, for any reason, another pilot would be immediately available to navigate the vessel. The City prepared an internal document known as "Standard Operating Procedures for Captains, Assistant Captains, Mates, Deckhands and Female attendants while the boats are loading, off-loading, and on their way" ("SOP"). The SOP specifies that:

"upon docking, the Captain will be in the in shore pilot house insuring that the aprons and bridge are in the correct position to receive the boat and the slip is in otherwise safe condition to dock."

Despite being a major municipal carrier of passengers, the Staten Island Ferry did not maintain an actual operations manual containing all of the practices and procedures under which it operated its ferry system other than the eight page SOP's. Instead, rules usually came in the form of individual directives, or standard operating procedures and informal traditions, which evolved over time. There was no formal method for disseminating the procedures to ferry personnel nor for ensuring that they were followed.

The NTSB Agreed That The Crash Could Have Been Avoided

Had the 2002 SOP been implemented, each ferry's Captain and Assistant Captain would have been required to be together in the operating pilot house while the ferry was in normal operation and this accident would not have occurred. The National Transportation Safety Board ("NTSB") in its final report of investigation of the disaster found that because the City had not disseminated and enforced this rule:

"The New York City Department of Transportation failed to implement and oversee safe and effective operating procedures for its ferries." (NTSB Report, p. 71).

The NTSB further found that Captain Gansas not being present in the pilothouse was the common, acceptable procedure on the part of the ferry crewmembers:

"Given the circumstances, it is probable that (1) the captain considered it acceptable, both operationally and in terms of the evaluation of his performance, to be absent from the pilothouse for almost an entire voyage without informing any other crewmember of his location, and (2) his absence was sufficiently commonplace to have been accepted by those individuals without comment." (NTSB Report, p. 61).

At no time during this voyage was Captain Gansas present in the in-shore pilot house of the ANDREW J. BARBERI before it struck the B-1 Maintenance Pier. He was somewhere else on the boat supposedly preparing the Barberi for an inspection with the United States Coast Guard to take place the next day. In regard to Gansas, the NTSB also found:

"...he was absent from the pilothouse and unavailable during the assistant captain's unresponsiveness and therefore, was not in a position to prevent the allision or to mitigate its severity. Therefore, the Safety Board concludes that the captain failed to exercise his command responsibilities over the ANDREW J. BARBERI." (NTSB Report, p. 61).
Gansas was never convicted or pled to a crime but he was discharged from his position by the City of New York when he refused to cooperate with the investigation. He applied for reinstatement but lost that battle in court.

The Director Of Ferries Pleads Guilty To Seamans Manslaughter

Patrick Ryan was the Director of Ferry Operations for the City of New York. He was in overall charge of the operations of the Staten Island Ferry service from his shoreside position, and was an executive level officer of the City of New York, the owner of the vessel ANDREW J. BARBERI. The essence of Ryan's job was the shoreside control and management of the operation of the fleet of Staten Island ferries, including the ANDREW J. BARBERI on and before October 15, 2003. This involved the establishment and enforcement of operational procedures, and the training and discipline of the vessel's officers and crew.

On April 22, 2005, Mr. Ryan pled guilty to violating the federal maritime manslaughter statute, 18 USC § 1115. At his allocution Mr. Ryan said, under oath:

"I understood that the ferry service had a written rule that generally required the captain and assistant captain to be together in the operating pilot house while the [ferry was] underway. A rule that served to insure passenger safety by providing for at least two people in the operating pilot house aware of the navigational situation. I knew that this rule was not always being observed by all captains and assistant captains in good weather. I drafted revised Staten Island Ferry Standard Operating Procedures between 2001 and 2002 that restated this rule but did not take appropriate steps to insure - did not take adequate steps to insure that the ferry's captains and assistant captains received the new document, trained them on the rule nor insured that they were complying with it. As a result, this rule was not followed at the time of the accident involving the Barberi on October 15, 2003 and no crew member noticed in time that the boat was far off course."

By this statement, Ryan admitted, upon pain of criminal punishment, that he knowingly and willfully failed to enforce the so called "two-pilot" rule aboard the ferry. Ryan's plea established the willful misbehavior of an individual of a sufficient high level to bind the shipowner with legal knowledge and privity of culpable conduct. Ryan admitted that his willful and knowing failure to properly enforce the two-pilot rule caused the crash, and the deaths and injuries which resulted. Ryan served a sentence of a year and a day at Allenwood Federal Correctional Complex.

The Port Captain Pleads Guilty To Making a Materially False Statement

John Mauldin was the Port Captain for Staten Island Ferries, whose basic responsibilities included overseeing daily operational functions of the ferry such as scheduling, fueling, informing the crews of any changes in Coast Guard regulations, making sure all required drills were carried out, and certain aspects of terminal operations. Director Ryan was his immediate supervisor as well as his brother in law. Mauldin supervised the staff at the port office, the staff of the ferry personnel at both terminals and all operational boats. Captain Gansas and Assistant Captain Smith both reported to him.

On April 22, 2005, Port Captain Mauldin plead guilty to making a materially false statement on November 24, 2003, to the United States Coast Guard, when he 4 The claimants hired their own naval architect who valued the ferry at 21.1 million dollars.

represented that the standard and usual practice and procedure followed by the ferry's captains and assistant captains at the time of the allision of the ANDREW J. BARBERI, was to be together in the operating pilot house while underway. He subsequently admitted that this was not the procedure followed on the boats and that he knew that it was not followed.

The Aftermath of the Crash

An investigation into the crash was conducted by the Global Maritime and Transportation School at the United States Merchant Marine Academy. ("GMATs"). The ferry operation was criticized for cronyism and nepotism. A change in management was necessary to change that culture. Less than a year after the crash, James DeSimone, a graduate of the State University of New York Maritime College, became the chief operating officer. New regulations mandated more staffing on the boats, background checks, a strict drug and alcohol policy, more stringent medical exams for employees, surveillance cameras on board, better signs, and communication with fellow crewmembers. There were always supposed to be two people capable of driving the boat in the wheelhouse. In practice, few ferry operators had ever followed the rule. Now the rules are more explicit. It unfortunately took a tragedy and a lawsuit to correct the neglectful culture of the Staten Island Ferry.

The City's Attempt to Avoid Responsibility and Cap its Damages

On December 1, 2003, the City of New York filed a Petition in the Federal Courthouse in Brooklyn requesting that the compensation due to all passengers on the boat be limited to the value of the ferry. It was the City's request that all damages be capped at the City's appraisal of the ferry of $14.2 million dollars.4 If the City's request was granted, the compensation for damages to all injured victims and estates of the deceased would be shared from the $14.2 million dollars.

In filing a petition to limit its liability to the value of the ferry, the City of New York took advantage of a legal loophole. American Limitation of Liability for ships originates from an antiquated statute enacted in the 19th century at a time when ships still had sails. During this time period there was little, if any, insurance available to cover marine perils, and it was a time when the corporation as a legal entity was not widely utilized to insulate investors from liability. In attempting to deny full compensation to the victims and families of this tragic event, the City infamously joins ranks in maritime history with such notorious shipowners as the owners of the M/V TITANIC, which attempted to limit their liability to the value of the few dozen lifeboats that escaped the sinking. The original intention of the statute was to promote commerce and ship building in the 1800's, not to assist a municipality in the 21st Century to escape its obligation for the negligent acts of its employees.

The Pending Civil Lawsuit

The attempt of the City of New York to limit its liability to the value of the ferry was defeated at the trial court level when on February 26, 2007 the Honorable Edward R. Korman, Chief Judge of the United States District Court in Brooklyn, issued a decision in favor of the claimants and finding that ferry management failed to disseminate and enforce a rule that required two pilots to always be present in the pilot house to guard against the possibility of incapacitation. The City appealed this ruling to the Second Circuit Court of Appeals where a panel of Judges heard oral argument on January 23, 2008. At oral argument, Judge Robert D. Sack compared the failure of the ferry to require two pilots with passenger expectations when flying on board on airplane:

"You have a 777 flying. You expect both pilots to be in the cockpit when it lands. You don't expect one to be in the back cleaning dishes."

On March 27, 2008 the Second Circuit Court of Appeals affirmed the decision of the District Court and held that the City could not limit its responsibility to compensate the victims of the tragedy. The Court also held that the City was negligent for the crash and that each victim was entitled to a trial on the issue of compensation for injuries and economic losses.

Currently, each person or estate, with a pending claim against the City of New York arising out of the ferry crash of October 15, 2003, may proceed to the trial and have the court determine the appropriate amount of compensation. The trials will be taking place on an individual basis.

(1) So named because it sits at the mouth of the Kill Van Kull waterway.

(2) Smith was reportedly taking tramadol, a powerful prescription pain reliever for back pain so acute that he could not sit comfortably. He was also taking an anti-depressant and other non-prescription medication. He had cardiac disease and was also reportedly being treated for high blood pressure. The combination of tramadol and an anti-depressant alone increase the likelihood of side effects such as fainting or seizures.

(3) Smith's physician, Dr. William Tursi, had filled out Smith's United States Coast Guard license renewal forms and omitted from the form the medications that he prescribed for Smith. He received probation, six months of home confinement, and 300 hours of community service. His license to practice medicine was suspended.

(*) Press release distributed by Mass Media Distribution LLC. MarEx is not responsible for the accuracy of the case information contained within.


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