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Now It's a Federal Case

Maritime statute carries 10-year maximum sentence

By Graham Rayman and Anthony M. DeStefano | STAFF WRITERS

October 30, 2003

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Federal prosecutors in Brooklyn have opened a criminal investigation into the Oct. 15 Staten Island ferry crash that left 10 dead and dozens injured, officials said yesterday.

Prosecutors with the U.S. Attorney's office for the Eastern District of New York are "fulfilling the federal government's responsibility" to protect people on the waterways, said Roslynn Mauskopf, the head of the office.

The federal statute, officials said, deals specifically with maritime incidents, and is better tailored to the type of case than the state statute. The federal negligence law also provides for a maximum penalty of up to 10 years in prison.

Meanwhile, the Staten Island District Attorney's office will convene a grand jury as part of its investigation, spokeswoman Monica Brown said. The office has issued subpoenas for documents in the case, sources said.

If criminal charges are eventually warranted, the Staten Island prosecutor's office likely will step out of the investigation, but assign a prosecutor to the federal team, officials said.

Separately, Rep. Vito Fossella (R-Staten Island) said Capt. Michael Gansas and the crew of the Andrew J. Barberi will be asked to testify at a congressional hearing Tuesday at the College of Staten Island. Congress can issue subpoenas if the crew members choose not to attend, he said.

Officials believe Assistant Capt. Richard Smith was at the controls when the ferry crashed at full-speed into the Staten Island maintenance pier. Initial reports suggested he passed out at the controls as the result of not taking his medication, but sources said the sequence of events remains unclear.

"We have heard conflicting accounts about what happened," a law enforcement source said.

The applicable federal statute states: "Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, ... shall be fined under this title or imprisoned not more than ten years, or both."

In the past, the statute has been used in the Golden Venture case, in which the boat loaded with Chinese illegal immigrants ran aground off the Rockaways in 1993. Lee Peng Fei, the mastermind of the smuggling operation, was convicted in six deaths, from hypothermia or drowning, and sentenced to 20 years in prison.

An earlier version of the statute was applied in the General Slocum disaster on the East River in 1904. More than 1,000 people died in a fast-moving fire on the steamship, many of them drowning because either they couldn't swim or the rotting life preservers dragged them to the bottom of the river.

Federal authorities prosecuted Capt. William Van Schaick, under the federal negligence statute and won a 10-year conviction.

"The jury concluded that he failed to operate a safe vessel," said Edward O'Donnell, who wrote a book on the tragedy called "Ship Ablaze," published by Broadway Books. "There was no evidence that he took any steps to address problems of life preservers and lack of fire hoses or performed any fire drills."

Van Schaick served 3 years in prison before he was pardoned by President William Taft after an elaborate letter-writing campaign from the maritime community, O'Donnell said.