CAPE MAY - The U.S. Coast Guard is theorizing that a collision with the ocean floor caused the damage found on the Lady Mary.

That "is the thinking we're on," said U.S. Coast Guard Cmdr. Kyle McAvoy, who is heading the inquiry into the sinking that killed six Cape May County fishermen.

But McAvoy cautioned the final report on the March 24, 2009, accident is still several months away and said reasons for the sinking may never be fully known.

"Will we ever know the exact answer? No, but we'll have some good ideas. We hope to get that (final report) out in a couple months. It will be based on a preponderance of evidence that this is what we think happened," McAvoy said.

But the owner of the Lady Mary and a team of scuba divers who documented its wreck about 65 miles off shore still believe the 77-foot scalloper was damaged in a collision with another vessel.

An attorney for the Lady Mary's owners said he has seen the Coast Guard's preliminary findings. Steve Weeks, an attorney for Smith & Smith Inc., the owner of the Lady Mary, said the Coast Guard's findings discount the possibility of a boat collision and focus instead on mechanical problems.

Weeks believes a boat collision, possibly with a cargo ship, caused the damage and the sinking.

"They've done calculations and determined the damage was done when the boat hit the bottom. It's so off base it's unbelievable," Weeks said. "The divers thought it was hit by another vessel, and I agree with them. Damage wasn't done striking the bottom."

The boat, which lays in about 210 feet of water, has major damage to the rudder, propeller shaft, stern ramp and other components.

The sinking claimed the lives of Lady Mary owner Timothy Smith, 37; his brother Royal Smith Jr., 42; Bernie Smith, 58, the uncle of the Smith brothers; Frankie Credle, 57, a cousin of the Smiths; Frank Reyes, 42; and Jorge Alberto Ramos Arteaga, 23.

There was one survivor, Jose Luis Arias, 57, a Mexico native who was sleeping when the boat started taking on water. He was able to put on a survival suit and was rescued by the Coast Guard several hours after the sinking.

Arias does not speak English, but in May 2009, he testified before the Coast Guard's Marine Board of Investigation using an interpreter. He said Tim Smith woke him telling him the boat was sinking. He said he waded through a flooded passageway and galley to the deck but found the crew in a state of "panic and desperation." Arias said the boat was listing 30 degrees to port. Royal Smith was at the wheel trying to maneuver the vessel. The engine was running, but the boat was not moving.

McAvoy, however, said Arias has been unable to explain what led to the situation to which he awoke.

"He doesn't know what happened. We probed him for hints but didn't get much due to the language barrier and the panic of a high-intensity situation," McAvoy said.

Weeks said the Coast Guard investigators have not been open to possible explanations that do not fit with their theories for the sinking.

"They started with a preconceived notion it was stability and continued with that notion. They disregarded everything that didn't fit that notion," Weeks said.

He said the report raises concerns that the Lady Mary had leaks, allowing water to come in. Questions also are raised about the hydraulic system.

The report also questions whether the rudder, found with heavy damage on the ocean floor, broke on the surface and left the Lady Mary "foundering around," Weeks said.

McAvoy said the Coast Guard believes the boat had leaks because photos of it on the ocean floor show a hose line linked to a bilge pump going to open hatch in the stern.

"It was rigged to be pumped down," McAvoy said.

Weeks discounted this as a major factor.

"It takes a hell of a long time for a slow leak to sink a 77-foot boat," Weeks said.

The rudder also remains an issue. A team of divers last year said rudder damage points to a collision with another vessel. The rudder was retrieved and has been tested by the National Transportation Safety Board, or NTSB. The final report is not out but McAvoy said preliminary data found no evidence of a collision.

"We didn't find things along those lines but the rudder does give us a lot of information and we will address all of that in our narrative in our report," McAvoy said.

Weeks said if the rudder failed on the surface it would not compromise the hull or sink the boat.

"The boat could float indefinitely," Weeks said.

McAvoy, however, said given the rough weather, with winds of 25 to 30 knots, and seas as high as 10 feet, losing steering could have led to the vessel getting swamped by waves. He noted Arias testified he walked through knee-deep water as he made his way through a port-side passageway.

"If they take a wave with the access hatch open, then they are flooded. Then other waves would come. You've got a big boat sloshing with water and it won't be responsive," said McAvoy.

Fuzzy Smith, the father of Tim and Royal Smith and shore-side manager for the Lady Mary, has argued a wave swamped the boat but he believes the wave was caused by a passing vessel.

Weeks said he tried to bring forth a witness, Jim Taylor, who was a mate on a nearby vessel the Elisa G. and claimed to have seen the 728-foot cargo ship Cap Beatrice near the Lady Mary at the time of the sinking. He said the Coast Guard would not allow the testimony.

"They saw the (Cap Beatrice) turn its lights on and off and then leave. I wanted the mate who was on watch at the time to testify but the Coast Guard said he was not credible," Weeks said.

Weeks said he also tried to get testimony from the captain and mate of another fishing vessel, Dictator, which was hit by a cargo ship 22 days after Lady Mary sank. The Dictator suffered damages similar to what was found on the Lady Mary but did not sink.

"They botched the investigation. They never even started looking at another ship until I got on the case," Weeks said.

McAvoy said he has not ruled out new testimony but told Weeks he was "delaying any decision" on more witnesses until the final NTSB report on the rudder comes out.

Weeks also complained the board has continued to interview Arias without inviting him to attend. McAvoy said Weeks was notified by letter whenever Arias was interviewed.

"He has a right to re-interview Arias as well," McAvoy noted.

With six lives lost, there are still questions of criminal and civil liability in the future. The board has convened three times and each session has drawn lawyers representing different parties.

There was no insurance on the Lady Mary. Weeks said if there was a collision, then there could be claims against another vessel.

The board is not involved in any criminal charges but could supply information to another agency that could pursue them. The board's findings are also not admissible in civil proceedings, but information it uncovers can be pursued by other parties on their own.

"They can take our ideas in the report and reproduce the evidence. It could spark things," McAvoy said.

Contact Richard Degener:

609-463-6711