A federal grand jury on Thursday indicted Kenneth Scott McKee, the captain of the duck boat that sank in Table Rock Lake in July — killing 17 — with 17 counts of misconduct, negligence, or inattention to duty by a ship’s officer.
The indictment accuses McKee, 51, of Verona, Mo., of a series of failures that “contributed to and caused the destruction of” the lives of those on board on July 19, during a severe storm with wind speeds more than double the maximums for safe operation of the boat.
Killed in the accident were a family of nine from Indianapolis and others from Missouri, Illinois and Arkansas, including 69-year-old Bill Asher and his girlfriend, Rose Hamann, 68, both of the Affton area. The ages of those killed ranged from 1 to 76.
The indictment Thursday says McKee failed to “properly assess” a severe storm both as it was approaching and when it arrived, entered the lake despite the storm, and failed to turn for the nearest shore when the storm hit. It also claims that he “caused or allowed” the boat’s side curtains to be lowered. Those curtains protect passengers from rain and wind but have been blamed for hampering an escape if the boat sinks.
The indictment says McKee failed to raise the curtains and tell passengers to don life vests during the storm and when the boat’s bilge alarm sounded twice. He also failed to prepare to abandon ship both times the bilge alarm sounded and when there was “an unacceptable loss of freeboard on the vessel,” the indictment says.
Freeboard is the distance from the water to the top of the deck, and decreases as a boat takes on water.
McKee’s lawyer, J.R. Hobbs, wrote in an email that McKee would surrender himself and plead not guilty. Hobbs declined to comment on the allegations against McKee.
U.S. Attorney Tim Garrison said in a news conference that the charge is sometimes known as seaman’s manslaughter. He said both the wind speeds and wave heights exceeded those for which the boat was rated. Court documents say that maximum wind speed was 35 mph and maximum wave height was two feet.
Garrison said that McKee’s failures “individually or cumulatively” contributed to the deaths.
“Our entire community was shocked and saddened by the loss of 17 lives in this tragic event last summer,” Garrison said in a statement announcing the indictment.
Garrison said he was unable to discuss the status of the investigation, other than it was ongoing, and warned reporters that he wouldn’t comment on the potential for charges against “any other person or entity.”
“This indictment represents the beginning, not the end of our efforts in this matter. We’re strongly committed to bringing this investigation to a conclusion as quickly as we can without sacrificing or compromising the integrity of this investigation. We owe that to the victims and the surviving family members of this tragedy,” and to the public, he continued.
He said that prosecutors were in “constant communication” with the families of the victims.
In a statement on behalf of her siblings, Asher’s daughter Jennifer Asher wrote that her family was relieved to learn of the indictment.
“While it is tough to be reminded of the tragic ordeal, my brother, sister and I believe the government is taking its responsibility seriously to protect the public from these dangerous boats. My family does not want anyone to experience this sort of tragedy ever again. We believe there is more than one person responsible for the reckless decision to put the boat on the water that day. We believe the ongoing investigation is moving in the right direction and appreciate the government’s effort in seeking justice for our dad.”
The seaman’s manslaughter charge says it also can be used against a boat’s owners and executive officers of a corporation if the corporation owns the boat. But Gregory F. Linsin, a Washington lawyer with experience in marine casualty investigations, said in an email that “would require the government to prove that he was at the time of the casualty responsible for the operation of the vessel and that he knowingly and willfully caused the misconduct that resulted in the death. This is a high intent standard which would require the government to prove that the executive officer acted knowingly and intentionally, with a specific intent to violate the law.”
Perhaps the statute’s best known recent use was after a fatal 2003 Staten Island Ferry crash that killed 11 and injured dozens. The pilot who fell asleep before the crash was sentenced in 2006 to 18 months in federal prison on 11 counts of seaman’s manslaughter. The ferry’s director of operations received 366 days in prison on one seaman’s manslaughter count and one count of making false statements to the Coast Guard after admitting that he failed to enforce a rule that required two pilots in the wheelhouse when underway.
The Stretch Duck 7 case was referred to federal prosecutors by the U.S. Coast Guard in August.
Also in August, Missouri Attorney General Josh Hawley sued boat owner Branson Duck Vehicles and Ripley Entertainment, which owned the Ride the Ducks attraction. The suit claims the boat was lacking foam or airtight compartments that could have kept it afloat and a bilge pump of sufficient strength. The suit also claims employees were aware of a severe thunderstorm warning, with potential 60 mph winds, and told McKee to skip the land portion of the duck boat tour so ticket holders couldn’t get a refund.
Hawley’s suit says wind speeds reached 73 mph during the storm.
In a court filing, company lawyers rejected Hawley’s claims, calling them “littered with factual inaccuracies and innuendo.”
The accident also sparked lawsuits in state and federal court.
Among the claims in the suits are that the owners and operators ignored the inherent danger of an amphibious vehicle, disregarded the safety of passengers, failed to train employees on safety procedures and failed to warn its passengers of the danger.
The companies named in the suits and their lawyers have declined to comment on past suits. The lawyers did not respond to a request for comment Thursday.
Suzanne Smagala-Potts, a spokeswoman for Ripley entertainment, said in an email late Thursday that the company was continuing to cooperate with the U.S. Attorney's office and other authorities.
"Above all, we are committed to supporting all our guests, employees, and families who were affected by the accident. We offer our sincere condolences to them, and to the entire community of Branson,” she wrote.
UPDATED at 10:50 a.m. Friday with statement from Ripley Entertainment.