CAPE MAY - The sinking of the scallop boat Lady Mary may remain mired in controversy four years later, but the death of six Cape May County fishermen who were aboard March 24, 2009, is leading to sweeping changes in commercial fishing safety regulations.
The Coast Guard issued 45 recommendations in its recently released report on the sinking covering issues including training, vessel stability, licensing, inspections, watertight features, electronics, drug testing and many others. Some of those recommendations are being implemented now. They represent the first proposed major changes to fishing vessel safety in decades.
"It's a tragic case, and I still feel for the families. That's why we're doing what we're doing," Coast Guard Cmdr. Kyle McAvoy said.
Lady Mary's owners continue to blame the sinking on a collision with a cargo ship, but the Coast Guard said there is no evidence of a collision. Instead, the USCG blames the sinking on unsafe conditions and an improperly trained crew.
Both sides, however, support efforts to learn from the tragedy.
McAvoy headed the Marine Board of Investigation inquiry into the sinking and has been promoted since to chief of the Office of Commercial Vessel Compliance for the Coast Guard. He's now in charge of trying to institute many of the recommendations he made during the inquiry. Some already have made it into the Coast Guard Authorization Act of 2010, though they have not been turned into regulations yet.
The inquiry was completed two years ago, but was not released to the public until August. McAvoy said it took two years to get clearance to release the report.
Jack Kemerer, chief of the Fishing Vessel Division in the Office of Commercial Vessel Compliance, said the Lady Mary's sinking already has influenced the first major changes to fishing vessel safety since 1988, when the first federal law was enacted.
Change will come slowly. Kemerer said it's a lengthy process to change the 2010 Reauthorization Act through the Federal Register. Any proposed rule first is reviewed by the Department of Homeland Security and the Office of Management and Budget before going though a public comment process.
"We're working on it. It could happen next year," Kemerer said.
Steve Weeks, the attorney for Lady Mary owner Smith & Smith Inc., of North Carolina, disagrees with the Coast Guard's findings on why the boat sank but not on recommendations to make the most dangerous occupation in America safer.
"I think some of the recommendations are not a bad idea, such as phasing in EPIRBs with GPS. I think that would have saved at least two of them," Weeks said.
An EPIRB is an emergency beacon that transmits to a satellite when a boat sinks. The Lady Mary had one, but it did not have a simple feature that transmits the location via GPS. This may have added 90 minutes to the Coast Guard response time. An error by a worker for the federal government who registered the wrong number for the EPIRB also added to the delay. If the right number had been registered, it would have identified the stricken vessel immediately as the Lady Mary.
The Coast Guard did retrieve lone survivor Jose Luis Arias, but Weeks noted it also picked up Lady Mary Capt. Royal "Bobo" Smith, who was dead, and his brother Tim "Timbo" Smith, who had vital signs but died shortly after the rescue. The brothers were wearing survival suits, and a quicker response may have saved them.
One of the recommendations is to add an internal GPS feature to all EPIRBs. Another would create a new process to register the EPIRBs.
The report also touts stability tests and rules to address boats modified from their original purposes. Stability tests are currently required for vessels longer than 79 feet, but the Lady Mary was only 71 feet.
The Lady Mary was built as a Gulf of Mexico shrimp boat. It underwent major modifications that made it ride lower in the water and may have influenced its stability.
This could be the most contested of the new rules, because it would cost the industry money and could ground some boats. Weeks argues the Coast Guard's report on the sinking appears to be aimed at getting new stability rules even though there is no evidence the boat rolled over.
"Stability wasn't the problem. It didn't capsize. It sank," Weeks said.
The Coast Guard report said the boat was flooded by heavy seas that poured through an open hatch cover while most of the crew was asleep. Arias said he watched it sink while he was floating nearby in his survival suit.
The Coast Guard plans to phase in increased stability requirements for smaller boats, developing programs by 2017 and implementing them by 2020.
New rules would immediately affect the 18,000 federally documented vessels in the commercial fishing industry. It remains unclear how the federal government would extend the law to the 58,000 state-registered vessels in the industry, which are often smaller, because they are used in state waters inside three miles. The federal government can make recommendations to the states.
The report also urges mandatory training for the crew and captain and blames a lack of it for the deaths on the Lady Mary. The Coast Guard report said the boat had the proper safety equipment, and the sinking "was a survivable event," but the captain and crew were unprepared to deal with an emergency.
There was no coherent Mayday. No flares were shot off. The general alarm was not sounded, and several crew members did not know how to don their survival suits properly. The lone survivor was the only one who put the suit on properly. The life raft was launched but was found empty.
"All the lifesaving gear in the world doesn't do you any good if you don't know how to use it," McAvoy said.
The Authorization Act calls for training to include instruction on seamanship, stability, navigation, damage control, personal survival, emergency drills, communications and weather.
"The captain of the Lady Mary, who was the individual in charge, did not demonstrate proficiency in many of these subjects," states the report. "This provision of the act must be implemented as soon as possible if future casualties are to be averted."
The report calls on the Coast Guard commandant to expedite rulemaking to require captains to take mandatory training. It says everybody on the crew should receive training on things including making an emergency broadcast, shooting a flare and abandoning ship.
"In this case, six crewmen died, one with a survival suit in his hands. This matter is too important to leave solely in the hands of individuals in charge…" states the report.
Many of the recommendations have been discussed for years, and get rehashed every time a fishing vessel sinks and there is loss of life.
Kemerer noted 20 vessels have sunk this year, but the people got off and were rescued. He said the public doesn't hear much about these cases. When people die is when the issue of safety comes up.
Kemerer is pushing flotation vests, though they are not in the recommendations. They don't delay hypothermia, as does a survival suit, but can be worn while the fisherman works on deck.
"Right now, half the fatalities are from falls overboard. They will keep you afloat long enough that you might get rescued," Kemerer said.
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