Number range CHAPTERCopr. © 2004 West. No Claim to Orig. U.S. Govt.
Works.

419 F.Supp. 430.

419 F.Supp. 430

**(Cite as: 419 F.Supp. 430)**

\<KeyCite Citations\>

United States District Court, D. New Jersey.

**UNITED STATES of America**

**v.**

**Cyril E. LaBRECQUE, Defendant.**

**Crim. No. 75-226.**

July 27, 1976.

Defendant ship captain charged in three counts with criminal
responsibility for deaths of two crew members moved for judgment of
acquittal. The District Court, Brotman, J., held that captain of
noncommercial pleasure vessel could not be held criminally responsible
for deaths of two crew members under statute imposing criminal sanctions
on employees of commercial vessels whose negligence causes death of
other persons; that evidence on charge of involuntary manslaughter was
sufficient for jury on issue of defendant\'s alleged cross negligence;
and that evidence on charge of negligent use of a vessel endangering
lives of others was sufficient for jury.

Motion granted in part and denied in part.

West Headnotes

**\[1\] Criminal Law k753.2(6)**

110k753.2(6)

In determining sufficiency of evidence on defendant\'s motion for
judgment of acquittal, trial judge must determine whether upon evidence,
giving full play to right of jury to determine credibility, weigh
evidence, and draw justifiable inferences of fact, a reasonable mind
might fairly conclude guilty beyond reasonable doubt. Fed.Rules
Crim.Proc. rule 29(a), 18 U.S.C.A.

**\[2\] Statutes k194**

361k194

The maxim \"ejusdem generis\" limits general terms which follow specific
terms to matters similar to those so specified.

**\[3\] Statutes k193**

361k193

The maxim \"noscitur a sociis\" is employed to ascertain the meaning of
ambiguous or doubtful words by reference to other words with which it is
associated.

**\[4\] Statutes k241(1)**

361k241(1)

Criminal statutes are to be construed strictly in favor of defendant;
ambiguities or doubts should be resolved in favor of defendant.

**\[5\] Constitutional Law k258(2)**

92k258(2)

Due process requires, indeed demands, that before criminal sanctions are
imposed, legislature must speak plainly and without ambiguity so that
fair warning of conduct that it makes a crime is given.

**\[6\] Seamen k34**

348k34

Captain of noncommercial pleasure vessel could not be held criminally
responsible for deaths of two crew members under statute imposing
criminal sanctions on employees of commercial vessels whose negligence
causes death of other persons. 18 U.S.C.A. § 1115.

**\[7\] Homicide k656**

203k656

(Formerly 203k34, 203k31)

**\[7\] Homicide k710**

203k710

(Formerly 203k34, 203k31)

Manslaughter may consist of an affirmative act, but omission to act may
also constitute manslaughter within federal statute defining involuntary
manslaughter. 18 U.S.C.A. § 1112.

**\[8\] Homicide k708**

203k708

(Formerly 203k34)

For Government to prevail under federal statute defining involuntary
manslaughter, it must prove gross negligence on part of defendant. 18
U.S.C.A. § 1112.

**\[9\] Homicide k1323**

203k1323

(Formerly 203k269)

Evidence in prosecution for involuntary manslaughter was sufficient for
jury on issue of defendant\'s alleged gross negligence. 18 U.S.C.A. §
1112.

**\[10\] Shipping k17**

354k17

Statute providing that while secretary in the department in which Coast
Guard is operating may not compel substantial alteration of boat which
is in existence, he may require compliance or performance to avoid
substantial risk of personal injury to public, cannot be read to except
persons who use a vessel, which predates the Act, in a grossly negligent
manner from criminal sanction of statute governing negligent use of
vessel. Federal Boat Safety Act of 1971, §§ 5(b)(2), 12(d), 46 U.S.C.A.
§§ 1454(b)(2), 1461(d).

**\[11\] Shipping k17**

354k17

Evidence in prosecution for negligent use of a vessel endangering lives
of others was sufficient for jury. Federal Boat Safety Act of 1971, §
12(d), 46 U.S.C.A. § 1461(d).

**\*431** Jonathan L. Goldstein, U. S. Atty., by Bruce I. Goldstein,
Executive Asst. U. S. Atty., Carl R. Woodward, Kenneth N. Laptook, Asst.
U. S. Attys., Newark, N. J., for plaintiff.

Roger A. Lowenstein, Federal Public Defender, John F. McMahon, First
Asst. Federal Public Defender, Newark, N. J., for defendant.

OPINION ON MOTION FOR JUDGMENT OF ACQUITTAL

BROTMAN, District Judge.

On January 25, 1974 the Sadie and Edgar, an auxiliary-powered
Newfoundland sailing schooner approximately 62 feet in length, set sail
from Connecticut on a voyage to Florida. On board were Cyril E.
LaBrecque, the Captain of the Sadie and Edgar, Jessie LaBrecque, the
Captain\'s wife, Valentine Bach, First Mate, and three young men who
comprised the ship\'s crew, Michael Riker, Paul Sagarino and Bradford
Blakely. Also on board was Captain LaBrecque\'s dog, Hap, a Labrador
retriever weighing approximately 70 pounds. For the LaBrecques, avid
boaters, the voyage was to be the culmination of a dream, that dream
being the beginning of a new life of semi-retirement in Florida aboard
the Sadie and Edgar. For the three young men, close friends only
recently graduated together from high school in Connecticut, the voyage
was to be an adventure; certainly it was also an interlude, indeed a
passage, between boyhood and manhood. This voyage, born of the idealism
of youth and of middle age, ended on the morning of January 29, 1974 in
stark and utter tragedy with the deaths of Paul Sagarino and Bradford
Blakely in the cold waters of the Atlantic Ocean off the coast of New
Jersey near Brigantine. Cyril LaBrecque is here charged with criminal
responsibility for the deaths of the two young men.

The Indictment reads in three counts. Count I charges the defendant with
causing the lives of Paul Sagarino and Bradford Blakely to be destroyed
through misconduct, negligence, neglect and inattention to his duties in
violation of 18 U.S.C. s 1115. Count II charges that as a result of a
lack of due caution and circumspection the defendant caused the deaths
of the two young men in violation of 18 U.S.C. s 1112. Count III charges
the defendant with endangering the life, limb and property of persons on
board the Sadie and Edgar in violation of 46 U.S.C. s 1461(d).

Central to each of the three counts are six acts or omissions of the
defendant which **\*432** the Government alleges, singularly or
concurrently, proximately caused the deaths of Paul Sagarino and
Bradford Blakely. First, defendant attempted to sail along the New
Jersey coast in winter in an unseaworthy vessel. Second, he attempted to
sail with a crew which he knew or should have known to be inexperienced
and inadequately trained. Third, he attempted to sail without an
operating ship-to-shore radio or other operating electronic equipment on
board the Sadie and Edgar. Fourth, he sailed and navigated the Sadie and
Edgar negligently, neglectfully and inattentively, thus causing the
vessel to run aground and sink. Fifth, he failed and refused, after the
Sadie and Edgar sank and its two lifeboats had been launched, and one of
the lifeboats had capsized, to require those persons, including himself,
who were in the remaining lifeboat periodically to change places with
the three crew members in the water, the temperature of which was
approximately 43 degrees Fahrenheit. Sixth, he failed and refused to
remove or direct the removal of the large dog from the one remaining
lifeboat so as to enable one of the persons in the water to take the
dog\'s place.

\[1\] The Government has completed the presentation of its case and the
defendant has made a motion for judgment of acquittal. \[FN1\]
Fed.R.Crim.P. 29(a) provides in pertinent part:

FN1. The court rendered its oral opinion on this motion on May 11, 1976;
because of the novel issues raised by this case the court has decided to
issue a formal written opinion. Cf. Tabatchnick v. G. D. Searle & Co.,
67 F.R.D. 49, 52 (D.N.J.1975).

The court on motion of a defendant or of its own motion shall order the
entry of judgment of acquittal of one or more offenses charged in the
indictment or information after the evidence on either side is closed if
the evidence is insufficient to sustain a conviction of such offense or
offenses. (emphasis added).

In determining the sufficiency of the evidence the trial judge \"must
determine whether upon the evidence, giving full play to the right of
the jury to determine credibility, weigh the evidence, and draw
justifiable inferences of fact, a reasonable mind might fairly conclude
guilty beyond a reasonable doubt.\" United States v. Gross, 375 F.Supp.
971, 973 (D.N.J.1974), aff\'d, 511 F.2d 910 (3rd Cir. 1975), cert.
denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975) quoting Curley
v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232, cert. denied,
331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

It is appropriate, before turning to a consideration of defendant\'s
motion, to outline generally the facts elicited on the Government\'s
case. The basic facts are not, as defense counsel observed in his
opening to the jury, in material dispute.

In the Fall of 1973 plans were made for the voyage. During this period,
first at the Connecticut River Marina, Chester, Connecticut, and later
at the Essex Boat Yard, Essex, Connecticut, Riker, Sagarino and Blakely
assisted Captain LaBrecque and Bach in readying the Sadie and Edgar for
the voyage. This work consisted of painting the bottom of the boat,
extending the rudder, installing bunks, building partitions between the
engine room, midship and the crew\'s quarters and constructing a dodger
to enclose the wheel house.

The Sadie and Edgar left the Essex Boat Yard on January 25, 1974. The
plan of the voyage was to follow the inland waterway down to Florida,
except for that segment between Sandy Hook and Atlantic City, New
Jersey, where the Atlantic Ocean would have to be traversed. From
January 25th to January 28th the voyage proceeded according to schedule,
with the Sadie and Edgar arriving at New Haven, Connecticut on the 25th,
City Island, New York on the 26th and Sandy Hook, New Jersey on the
27th. On January 28th, a Monday, the Sadie and Edgar left Sandy Hook
bound for Atlantic City. On this day, as it had been throughout the
voyage, the vessel was without a ship-to-shore radio.

According to the testimony of Michael Riker, the only survivor who
testified on behalf of the Government, the weather was overcast on the
morning of January 28th. **\*433** Showers had been predicted. \[FN2\]
By late afternoon the sky had become very dark, the seas choppy; the
wind had picked up and it had begun to rain. Riker testified that the
band which held the bowsprit down to the deck of the boat was loose and
that he tried several times to tighten it. These efforts were
unsuccessful and the bowsprit snapped. It lay, still attached to the
vessel, in the water on the right side of the boat and was banging
against the side of the boat. The lower part of the foremast then
snapped. The vessel, which had been taking on water, began to take on
considerably greater amounts of water. Shortly thereafter the Sadie and
Edgar ran aground on some shoals. The vessel suffered a tremendous
pounding on these shoals. The waves would pick the Sadie and Edgar up
and then drop it down hard on the shoals. This, Riker testified,
happened many times. Finally, Captain LaBrecque was able to back the
vessel off the shoals. But by this time the Sadie and Edgar had taken on
too much water. The lights had started to dim and the engine was
sputtering.

FN2. Mrs. LaBrecque had a regular AM-FM radio on board the Sadie and
Edgar.

At this point in the evening the sinking vessel was abandoned. \[FN3\]
Two lifeboats were launched, one a sixteen foot fiberglass runabout
which all six persons boarded, the other an eleven foot wooden skiff.
Valentine Bach attempted to start a motor which he had attached to the
runabout. His efforts proved futile. Subsequently Bradford Blakely
transferred into the skiff and began to tow the larger boat. Blakely
soon tired and the defendant switched positions with him and began to
row the skiff. A short time later the runabout capsized and all five
persons in it and the dog were thrown into the water.

FN3. Lieutenant Wyche of the United States Coast Guard testified that
the Sadie and Edgar sank five hundred yards off Pullen Island.

Mrs. LaBrecque was the first person into the skiff. Next into the skiff
was the dog, who had scrambled over the shoulders of Blakely and
Sagarino and was finally pushed into the skiff by the two young men.
Riker, who had complained that his foul weather gear was filling up with
water, also climbed aboard the skiff with the assistance of Sagarino and
the defendant. The situation in the boat was that the defendant was at
the oars, Mrs. LaBrecque and Riker were laying in the bow, the dog was
in the well of the boat and the back bench was empty. Blakely, Sagarino
and Bach were in the water hanging onto the skiff where they remained
throughout the night and into the morning. No attempt was made to
rotate, with the person or persons in the boat exchanging places with
those in the water. Nor was any attempt made to throw the dog overboard.

Some time after dawn on the morning of January 29th first Bradford
Blakely and then Paul Sagarino died in the cold waters of the Atlantic
Ocean. Thereafter Bach managed to pull himself into the skiff, where he
and the others remained until they were rescued at about 12:00 Noon by
the Providence Getty, an oil tanker. The survivors were transferred to a
Coast Guard cutter and taken to a hospital in Atlantic City.

Count I of the Indictment charges the defendant with violating 18 U.S.C.
s 1115, which provides in pertinent part:

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, and every
owner, charterer, inspector, or other public officer, through whose
fraud, neglect, connivance, misconduct, or violation of law the life of
any person is destroyed, shall be fined not more than \$10,000 or
imprisoned not more than ten years, or both.

Defendant contends that the Government has failed to prove that the
defendant was \"employed\" on the Sadie and Edgar and has further failed
to prove that the Sadie and Edgar was engaged in commercial activity,
which the defendant maintains the Government must do in order to obtain
a conviction **\*434** under Section 1115. Defendant\'s argument focuses
upon the following key words found in the statute: \"(e)very captain,
engineer, pilot, or other person employed on any steamboat or vessel.\"
(emphasis added). It is self-evident that the Sadie and Edgar is a
vessel and that the defendant is its captain. \[FN4\] Defendant\'s
argument is that the word \"captain\" must be interpreted with reference
to the words \"other person employed.\" As so interpreted, defendant
submits, it becomes plain that the statute was only intended to reach
the conduct of persons employed on vessels engaged in commercial
activity. If the voyage commenced in January 1974 by the Sadie and Edgar
was a non-commercial pleasure trip, then, defendant cannot be prosecuted
under Section 1115.

FN4. According to the testimony of Michael Riker, the defendant stated
prior to the commencement of the voyage that once the voyage commenced
\"his decisions would be final.\"

Preliminarily it is necessary to review the testimony concerning the
nature of the voyage on which the Sadie and Edgar set sail in January of
1974. The defendant planned a voyage from Connecticut to Florida and on
to the Bahamas. There is no testimony indicating that the voyage was
anything but a pleasure trip for the defendant, as well as the three
young men, Michael Riker, Paul Sagarino and Bradford Blakely who joined
in the voyage. Certainly the Sadie and Edgar carried no cargo or
passengers for hire. \[FN5\] It is evident therefore that there exists
insufficient evidence upon which the jury could find beyond a reasonable
doubt that the Sadie and Edgar was engaged in a commercial voyage. Nor
is there sufficient evidence to find that the defendant was employed on
the Sadie and Edgar.

FN5. Of some relevance in this regard is the testimony of Michael Riker:
Q. Now, did you receive any pay, any compensation for helping Mr.
LaBrecque move out of his house and for doing the work (preparing the
vessel for the voyage) that you described here this morning?

A. Well, we received no pay. But, the arrangement was, that in return
for this work, he would feed us on the boat and we would be able to stay
on the boat on the voyage down to Florida.

\[2\]\[3\] Accordingly the court must resolve the issue whether captains
of non-commercial pleasure vessels, such as the defendant Cyril E.
LaBrecque, are subject to the criminal sanctions set forth in Section
1115. The defendant raises a legitimate question as to the meaning of
the words employed in the statute. It is helpful to note two maxims of
statutory construction which lend some assistance in the interpretation
of the words. The maxim, ejusdem generis, limits general terms, i. e.,
\"other person employed,\" which follow specific terms, i. e. \"captain,
engineer, pilot,\" to matters similar to those so specified. United
States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975),
citing Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed.
522 (1936). \[FN6\] Admittedly this is not the usual case where ejusdem
generis is employed to interpret the general term. United States v.
Insco, 496 F.2d 204, 206 (5th Cir. 1974). Here the question is not who
is an \"other person employed\"; rather it is whether that term limits
the definition of \"captain\" to captains employed on vessels engaged in
commercial activity. In effect, the maxim is employed in the converse.
The maxim noscitur a sociis is employed to ascertain the meaning of an
ambiguous or doubtful word, here \"captain,\" by reference to other
words with which it is associated, here \"other person employed.\"
Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6
L.Ed.2d 859 (1961); Wong Kam Wo v. Dulles, 236 F.2d 622, 626 (9th Cir.
1956). These maxims of statutory construction, ejusdem generis and
noscitur a sociis, are helpful aids in construing Section 1115, and, it
may be observed, supportive, though certainly not dispositive, of
defendant\'s interpretation of the statute. But they must be **\*435**
limited to their proper use; they cannot be employed to thwart the clear
intent and purpose of the statute. See Powell, supra.

FN6. This maxim has particular force where, as here, the interpretation
of a criminal statute is involved, since \"courts are compelled to
construe (such statutes) rigorously in order to protect unsuspecting
citizens from being ensnared by ambiguous statutory language.\" United
States v. Insco, 496 F.2d 204, 206 (5th Cir. 1974). See text, infra.

As originally enacted in 1838 Section 1115 was part of an act entitled
\"An Act to provide for the better security of the lives of passengers
on board of vessels propelled in whole or in part by steam.\" Act of
July 7, 1838, Ch. 191; 5 Stat. 304. The 1838 Act set forth licensing and
safety standards for steamboats transporting goods, wares and
merchandise or passengers upon the navigable waters of the United
States. Section 12 of the 1838 Act is the predecessor of 18 U.S.C. s
1115. It provided:

That every captain, engineer, pilot, or other person employed on board
of any steamboat or vessel propelled in whole or in part by steam, by
whose misconduct, negligence, or inattention to his or their respective
duties, the life or lives of any person or persons on board said vessel
may be destroyed, shall be deemed guilty of manslaughter . . . . 5 Stat.
at 306.

Congress\'s purpose in promulgating this Act was explained as follows in
United States v. Holtzhauer, 40 F. 76, 78 (C.C.D.N.J.1889):

Section 5344 (the predecessor of 18 U.S.C. s 1115) was enacted by
congress in the proper exercise of its constitutional power \"to
regulate commerce with foreign nations and among the several states,\"
and it was early decided by the supreme court of the United States that
this power included the power to regulate navigation as connected with
the commerce of foreign nations and among the states. U. S. v. Coombs,
12 Pet. 72, (9 L.Ed. 1004); citing and reaffirming Gibbons v. Ogden, 9
Wheat. 189, (6 L.Ed. 23). . . .

Its purpose was to establish a supervision over the conduct of the
officers and other persons employed on any steam-boat or vessel
navigating the waters of the United States . . . .

The 1838 Act was plainly intended to reach vessels engaged in commerce.
Its purpose was to act as a deterrent to \"(t)he frequent loss of human
life in consequence of explosions of the boilers of steamboats, of
collisions and the burning of steamboats on (the) western waters . . .
.\" Charge to Grand Jury, 30 F.Cas. 990, 991 (No. 18,253) (E.D.La.1846);
see also United States v. Warner, 28 F.Cas. 404 (No. 16,643) (C.C.D.Ohio
1848).

Section 12 of the 1838 Act was reenacted in its present form in 1909.
Act of Mar. 4, 1909, 60th Cong., Ch. 321, s 282; 35 Stat. 1144. The 1909
Act is virtually identical to the prior statute, one difference being
that vessels other than steamboats are now included within its ambit,
this reflecting technological developments.

Prosecutions under Section 1115 have charged captains and other
employees of vessels engaged in the commercial venture of carrying
passengers for hire. E. g., Holtzhauer, supra; United States v. Keller,
19 F. 633 (C.C.D.W.Va.1884); United States v. Abbott, 89 F.2d 166 (2nd
Cir. 1937). For example in Abbott the chief engineer and master of the
Morro Castle, a steamship carrying 318 passengers and 231 crew which
sank in the Atlantic Ocean off the coast of New Jersey due to fire,
causing the death of some 100 persons, were prosecuted. With but one
exception, Section 1115 has been applied exclusively in the context of
commercial vessels. In Hoopengarner v. United States, 270 F.2d 465 (6th
Cir. 1959) the owner of a pleasure boat was prosecuted for recklessly
operating a motorboat while drunk and causing the death of a person in
another pleasure boat with which he collided. Hoopengarner is the only
such prosecution reported. In that case the issue posed here, the
applicability of Section 1115 to a non-commercial vessel, was not
raised. While Hoopengarner implicitly sanctioned the prosecution of a
pleasure boat owner, it seems to represent an unwarranted (and perhaps
unintentional) extension of the statute to cover a type of situation not
intended by Congress. This court does not find Hoopengarner persuasive
in light of the purpose and history of the legislation as well as the
ambiguity of its words.

Section 1115 was, as noted, designed to punish persons employed on
commercial **\*436** vessels carrying persons for hire. If Congress had
intended to punish persons operating non-commercial pleasure vessels, by
whose misconduct, negligence, neglect or inattention human life is
destroyed, it could have plainly stated: \"any person operating any
vessel\" and defined \"vessel\" to include both \"commercial and
non-commercial pleasure\" vessels.

The court takes cognizance of the different construction which the
Government places upon the statute, namely that the statute is intended
to reach all captains of vessels. Certainly if the policy of the statute
is to impose a rigorous standard of care upon those persons operating
vessels, there is much to be said for the Government\'s position. The
answer to the question of which construction of the statute should
prevail, the Government\'s or the defendant\'s, is not without doubt,
though the court is inclined, for the reasons already stated, to find
defendant\'s argument more persuasive. When Section 1115 is considered
with reference to certain canons of construction applied to criminal
statutes, the proper disposition of defendant\'s motion for a judgment
of acquittal on Count I becomes evident.

\[4\]\[5\] It is a familiar principle that criminal statutes are to be
construed strictly in favor of the defendant. Smith v. United States,
360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959); United States v.
Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936); United
States v. Ortega, 517 F.2d 1006, 1009 (3rd Cir. 1975). Ambiguities or
doubts should be resolved in favor of the defendant. Rewis v. United
States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); accord,
Huddleston v. United States, 415 U.S. 814, 830-31, 94 S.Ct. 1262, 39
L.Ed.2d 782 (1974); United States v. Bass, 404 U.S. 336, 347, 92 S.Ct.
515, 30 L.Ed.2d 488 (1971); Ortega, supra. As stated in United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97
L.Ed. 260 (1952):

(W)hen choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in
language that is clear and definite. We should not derive criminal
outlawry from some ambiguous implication.

Manifestly Congress has the power to punish captains of non-commercial
pleasure vessels who cause the death of persons on board such vessels
through misconduct, negligence or inattention. Cf. Bell v. United
States, 349 U.S. 81, 82-83, 75 S.Ct. 620, 99 L.Ed. 905 (1955). \[FN7\]
But due process requires, indeed demands, that before criminal sanctions
are imposed, the legislature must speak plainly and without ambiguity,
cf. Bell, supra at 83- 84, 75 S.Ct. 620, so that \"fair warning of the
conduct that it makes a crime\" is given. Bouie v. City of Columbia, 378
U.S. 347, 350, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964); see
Huddleston, supra, 415 U.S. at 831, 94 S.Ct. 1262; United States v.
Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United
States v. Gaskin, 320 U.S. 527, 530, 64 S.Ct. 318, 88 L.Ed. 287 (1944)
(dissenting opinion).

FN7. Since pleasure and recreational activities are a vital part of the
nation\'s commerce, the Commerce Clause, U.S.Const. Art. I, s 8, would
reach pleasure vessels. See Federal Boat Safety Act of 1971, 46 U.S.C. s
1451 et seq.; Senate Rep. No. 92-248, 92nd Cong., 1st Sess. 1, 6- 7
(1971), U.S.Code Cong. & Admin.News 1971, p. 1333.

\[6\] Fundamentally what the Government attempts to do here, in effect,
is to take Section 1115, which was intended to punish employees of
commercial vessels whose negligent behavior causes the death of other
persons, and extend it to punish a similar evil, criminal negligence
allegedly committed by the captain of a non-commercial pleasure vessel.
When our Constitution was still very young Chief Justice Marshall said:

It would be dangerous, indeed, to carry the principle, that a case which
is within the reason or mischief of a statute, is within its provisions,
so far as to punish a crime not enumerated in the statute, because it is
of equal atrocity, or of kindred **\*437** character, with those which
are enumerated. United States v. Wiltberger, 18 U.S. (5 Wheat.) 35, 44,
5 L.Ed. 37 (1820).

See United States v. Resnick, supra, 299 U.S. at 209-10, 57 S.Ct. 126.

The imposition of criminal sanctions is a most serious matter.
\"(B)ecause criminal punishment usually represents the moral
condemnation of the community, legislatures and not courts should define
criminal activity.\" Bass, supra, see Huddleston, supra. This court
\"cannot assent to . . . judicial revision of (Section 1115).\" Gaskin,
supra (dissenting opinion). Only Congress has the power to amend or
clarify Section 1115. Id.

Strict construction of criminal statutes notwithstanding, \"(t)hat
principle . . . does not require distortion or nullification of the
evident meaning and purpose of the legislation.\" Gaskin, supra, 320
U.S. at 529-30, 64 S.Ct. 318, 319, 88 L.Ed. 287 (majority opinion); see
Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d
450 (1976); Ortega, supra. Because the meaning of purpose of Section
115, at least with respect to individuals such as the defendant, is less
than evident (indeed it is the defendant who makes the more compelling
argument as to its meaning and purpose), the rule of strict construction
of criminal statutes is properly invoked here.

Thus although the defendant is a captain, he is the captain of a
non-commercial pleasure vessel. Section 1115 only reaches commercial
vessels. Accordingly, the defendant cannot be prosecuted under Section
1115 as a captain of a vessel. \[FN8\] Defendant\'s motion for a
judgment of acquittal on Count I must be granted.

FN8. Nor can defendant be prosecuted under the second part of Section
1115, which reaches owners, charterers, inspectors or other public
officers who through neglect or misconduct cause the death of another;
and is designed to impose standards of care (the violation of which
trigger criminal sanctions) upon another category of persons, those who
allow unsafe commercial vessels to sail, as distinguished from those who
navigate and operate such vessels.

Count II charges the defendant with violating 18 U.S.C. s 1112, which
provides in pertinent part:

\(a\) (Involuntary) (m)anslaughter is the unlawful killing of a human
being without malice . . . (i)n the commission of an unlawful act not
amounting to a felony, or in the commission in an unlawful manner, or
without due caution and circumspection of a lawful act which might
produce death.

\(b\) Within the special maritime and territorial jurisdiction of the
United States . . . .

Defendant focuses upon the word \"killing\" in Section 1112, the federal
manslaughter statute. A \"killing,\" defendant contends, is death caused
by a trauma or wounding; it connotes the destruction of life caused by
bodily injury. Essentially defendant argues that he committed no act of
violence directed against the victims, \[FN9\] and that consequently
there can be no killing where the defendant is charged only with
omissions failing to carry a radio, failing to rotate the people in the
water into the boat and refusing to throw the dog overboard.

FN9. The evidence adduced on the Government\'s case is fully supportive
of this argument.

\[7\] Manslaughter may consist of an affirmative act, United States v.
Pardee, 368 F.2d 368, 374 (4th Cir. 1966) (driving an automobile). But
an omission to act may also constitute manslaughter. State v. O\'Brien,
32 N.J.L. 169, 171 (1867) (failure to properly tend to railroad switch);
State v. Ireland, 126 N.J.L. 444, 445, 20 A.2d 69, 70 (1941), appeal
dismissed, 127 N.J.L. 558, 23 A.2d 560 (1942) (building collapse caused
by architect\'s preparation of defective plans, neglect and violation of
building code). \[FN10\] In Commonwealth v. Welansky, 316 Mass. 383,
397, 55 N.E.2d 902, 909 (1944) the defendants were convicted for
manslaughter for a **\*438** fire which occurred in their nightclub. The
court observed:

FN10. See State v. Gooze, 14 N.J.Super. 277, 282, 81 A.2d 811, 814
(App.Div.1951); State v. Diamond, 16 N.J.Super. 26, 31, 83 A.2d 799, 802
(App.Div.1951).

(W)here as in the present case there is a duty of care for the safety of
business visitors invited to premises which the defendant controls,
wanton or reckless conduct may consist of intentional failure to take
such care in disregard of the probable harmful consequences to them or
of their right to care.

Omissions to act, as are charged here and as distinguished from a trauma
or wounding, may thus constitute involuntary manslaughter under Section
1112.

Moreover, \"killing\" must be read with reference to the definition of
\"involuntary manslaughter\" found in Section 1112, the commission of a
lawful act which might produce death \"without due caution and
circumspection.\" Certainly failures or omissions to act, so
characteristic of the law of negligence, fall within the ambit of
Section 1112 which punishes criminal negligence.

\[8\] For the Government to prevail under Section 1112 it must prove
gross negligence on the part of the defendant. Pardee, supra at 374;
accord, State v. Chapman, 101 F.Supp. 335, 341 (D.Md.1951). In Pardee,
supra, quoting Chapman, supra, gross negligence was distinguished from
the simple negligence which would give rise to civil liability:

(T)he amount or degree or character of the negligence to be proven in a
criminal case is gross negligence, to be determined on the consideration
of all the facts of the particular case, and the existence of such gross
negligence must be shown beyond a reasonable doubt. If the resultant
deaths were merely accidental or the result of a misadventure or due to
simple negligence, or an honest error of judgment in performing a lawful
act, the existence of gross negligence should not be found.

See Wechsler, \"Codification of Criminal Law in the United States: The
Model Penal Code,\" 68 Colum.L.Rev. 1425, 1438 (1968). The Pardee Court
further characterized gross negligence as \"a wanton or reckless
disregard for human life.\" 368 F.2d at 374. But cf. United States v.
Dixon, 135 U.S.App.D.C. 401, 419 F.2d 288, 293 n. 6 (1969) (concurring
opinion).

\[9\] Concerning the issue of gross negligence the Government has
introduced evidence to the effect that the rigging on the vessel was
slack or loose and that the hull was in a state of disrepair. The
defendant had been advised by persons who had sailed the New Jersey
coast many times not to travel those waters in January. Further, the
three young men who made up the crew were not experienced sailors.
Although the defendant had been advised of the critical importance of
having a ship-to-shore radio on board, \[FN11\] and although he had
promised the father of Paul Sagarino that a radio would be on board, he
made the voyage without a radio. When the ship sank he was able to set
off flares, but he was unable to radio for help. Lieutenant William
Wyche of the Coast Guard testified that the Coast Guard Manning Stations
at Atlantic City and Beach Haven monitor ship-to-shore AM and FM radio
stations on a twenty-four hour basis for distress signals. If a distress
signal had been received from the Sadie and Edgar, the Coast Guard could
have reached the vessel in one hour. Certainly the evidence concerning
the absence of a radio is sufficient, by itself, to take the case to the
jury on the issue of gross negligence.

FN11. Richard Davidson, a consultant at the Essex Boat Works with
experience sailing the New Jersey coast, testified that he advised the
defendant: \"under no circumstances go beyond Sandy Hook without a
radio.\"

Michael Riker testified that after the Sadie and Edgar and the runabout
sank, no attempt was made, despite frequent requests, to rotate with
those in the water exchanging places with those in the boat. Captain
LaBrecque answered the requests by stating that the skiff could not hold
any more persons and that to attempt rotation would capsize it. However,
Riker testified that after Paul Sagarino and Bradford Blakely died,
Valentine Bach, who weighed approximately 210 pounds climbed aboard
**\*439** the skiff. Riker further testified that he felt rotation was
possible after sunrise, since the waters had calmed considerably.
Finally, no attempt was made to throw the dog, who weighed approximately
70 pounds, overboard, despite requests from those in the water that this
be done so that an additional person could come aboard the skiff.

Whether the judgments made by Captain LaBrecque constitute gross
negligence is an issue the jury will ultimately decide. At this stage in
the proceedings only the Government has presented its case. The jury has
yet to hear from the defense. Presumably the evidence presented by the
defense, assuming that evidence is presented, \[FN12\] will place the
defendant\'s conduct in a different light. At this juncture the court
need only, and does only, determine that the Government has presented
sufficient evidence suggesting defendant\'s gross negligence to take
this case to the jury.

FN12. The defendant, of course, is presumed innocent until proven
guilty, and bears no obligation to present any evidence at all.

Count III charges the defendant with violating 46 U.S.C. s 1461(d),
which provides:

No person may use a vessel, including one otherwise exempted by section
1453(c) of this title, in a negligent manner so as to endanger the life,
limb, or property of any person. Violations of this subsection involving
use which is grossly negligent, subject the violator, in addition to any
other penalties prescribed in this chapter, to the criminal penalties
prescribed in section 1483 of this title.

Section 1461(d) is part of the Federal Boat Safety Act of 1971. 46
U.S.C. s 1451 et seq.

\[10\] Defendant\'s argument with respect to Section 1461(d) is twofold.
First, relying upon Section 1454(b)(2) it is argued that this statute
does not apply to vessels such as the Sadie and Edgar, in existence
before the effective date of the Act, August 10, 1971. Section
1454(b)(2) states that while the Secretary in the Department in which
the Coast Guard is operating \"may not compel substantial alteration of
a boat . . . which is in existence,\" he \"may require compliance or
performance to avoid a substantial risk of personal injury to the public
. . . .\" See Senate Rep. No. 92-248, 92nd Cong. 1st Sess. 18-19 (1971),
U.S.Code Cong. & Admin.News 1971, p. 1333. Section 1454(b) (2) merely
applies to the issuing of regulations or standards by the Secretary. It
cannot be read to except persons who use a vessel, which predates the
Act, in a grossly negligent manner from the criminal sanction of Section
1461(d).

\[11\] Second, defendant argues that the defendant has not \"used\" the
vessel as that term is defined in the statute. \"Use\" is defined as
\"operate, navigate, or employ.\" Section 1452(4). Defendant submits
that there has been no evidence presented proving gross negligence in
the operation, navigation or employment of the vessel. The focus of
defendant\'s argument is upon Captain LaBrecque\'s actions at sea rather
than the condition of the vessel and experience (or inexperience) of its
crew prior to the commencement of the voyage.

This view of \"use\" is far too restrictive. The Government presented
evidence that the defendant sailed in winter with an inexperienced crew
on a vessel whose rigging was improperly maintained. The Sadie and Edgar
left Sandy Hook on January 28, 1974 without a radio. Sufficient evidence
was presented indicating that the defendant was operating and navigating
the vessel in a grossly negligent manner to deny defendant\'s motion for
a judgment of acquittal. \[FN13\]

FN13. See textual discussion under Count II, supra.

To summarize, defendant\'s motion for a judgment of acquittal is granted
as to Count I, but denied as to Counts II and III. \[FN14\]

FN14. On May 14, 1976 the jury returned a verdict of Not Guilty on the
two remaining counts.

419 F.Supp. 430

END OF DOCUMENT