Towboat Captain Faces Criminal Charges in Fatal Barge Explosion

By Dom Yanchunas – Professional Mariner, Navigator Publishing
In yet another case of criminalizing a maritime accident, a federal grand jury has indicted an Illinois towboat captain and his family’s business on negligence charges as a result of a fatal 2005 barge explosion.

Dennis Michael Egan, 32, of Topeka, Ill., was charged with one count of negligence by a ship officer in the death of a crewman. He was charged with one count of causing oil to pollute a navigable waterway. His uncle’s company, Egan Marine Corp., faces similar charges.

The accident involving the pushboat Lisa E and its fuel barge, EMC-423, happened Jan. 19, 2005, in the Chicago Sanitary and Ship Canal. The U.S. Justice Department said the barge was fully loaded with 600,000 gallons of clarified slurry oil when it exploded. Deck hand Alexander Oliva, 29, was killed.

“Egan Marine Corp. and its employees negligently vented combustible vapors from the cargo hold of the barge to the deck of the vessel, causing an explosion hazard,” U.S. Attorney Patrick J. Fitzgerald said in a press release. “At the alleged direction of Egan Marine, Oliva was using a propane-fueled open flame from a handheld ‘rosebud torch’ to heat a cargo pump on the barge deck.”

Dennis Michael Egan and Egan Marine, owned by an uncle also named Dennis Egan, pleaded not guilty in February. The company’s defense attorney, Steven Fritzshall, denies that a torch was used. He blames the ExxonMobil Oil Co. refinery in Joliet, Ill., for loading the oil in a hazardous state.

“They picked up a hot load that wasn’t weathered properly,” Fritzshall told Professional Mariner. “They basically put a bomb on our boat. … If ExxonMobil had told us they had a problem — that they could not weather it properly — we could have just put it on our barges and opened up our hatches and weathered it ourselves. The fix was easy if they had just been honest with us.”

ExxonMobil spokesman Kevin Allexon wouldn’t comment, citing pending litigation. Both Egans also declined to be interviewed.

The elder Dennis Egan and the defense attorneys are disappointed that Dennis Michael Egan faces criminal charges. They believe the captain acted heroically in landing the burning barge and trying to locate Oliva, whose body was found in the canal two weeks later.

“It was pure chaos when it went up (in flames), and in the spirit of a captain, he stayed with the ship,” Fritzshall said. “There were flames and all sorts of smoke and everything, and instead of cutting and chasing, he stayed with the barge and tried to find his man at great risk to himself. He acted honorably.”

Egan Marine is a defendant in a National Pollution Fund Center civil case that will determine who should pay for the $1.5 million environmental cleanup, said attorney David Sump, a former U.S. Coast Guard officer who represents the company.

Dennis Egan faces charges under the 19th century Seaman’s Manslaughter Statute and the Clean Water Act. Sump noted that U.S. mariners can face criminal charges for lower levels of negligence than almost anyone else.

“Certainly it places mariners in a position of risk that is not shared by others in similar industries,” Sump said. “There needs to be a high degree of prosecutorial discretion in these cases. It heightens the need that the prosecution very delicately and sparingly uses these statues. You really need to see gross negligence or willful misconduct.”

Assistant U.S. Attorney Timothy Chapman said the accusations likely would qualify as gross negligence “to the extent we would need to prove gross negligence, which we don’t.”

The government needs only to prove there was mariner “misconduct or inattention to duty or violation of the law,” Chapman said. “This case involves all three. The use of an open flame on the barge violates the regulations. So that’s misconduct — or a violation of the law.”

The Egan indictment is the latest case in which mariners were charged criminally for accidents. After a 2006 fatality in Mobile, Ala., involving the ship Zim Mexico III, the vessel’s German captain spent four months in jail before he was convicted of negligence. The judge sentenced the captain to time served and released him.

The bar pilot in the Cosco Busan oil-spill disaster in 2007 was sentenced to 10 months in prison. In South Korea, two Indian ship officers received prison sentences in the 2007 Hebei Spirit spill case.

Anytime a maritime casualty results in serious injury or a fuel spill, the vessel officers should contact a lawyer immediately — even in the midst of the emergency response, Sump said. This approach can conflict with mariners’ natural desires to help others and learn from mistakes.

“This creates problems because the Coast Guard wants you to cooperate with the salvaging of the vessel and the cleaning of the oil,” Sump said. “When the Coast Guard and other law-enforcement folks start asking ‘how’ questions — how did this happen? — then you have to stop and say, ‘Hey, I’ll tell you what kind of oil and how much, but I’m not going to answer any questions about how it happened.’”

If convicted, the 32-year-old captain of Lisa E could be sent to prison for as long as 10 years and be required to pay a fine of as much as $250,000. On the oil pollution count, he could face a year in prison and a $100,000 fine. Egan Marine would pay larger fines.