By Jon Campisi | May 8, 2012

The federal wrongful death trial stemming from the deadly 2010 duck boat accident on the Delaware River in Philadelphia got under way Monday with opening arguments by the attorneys involved in the civil litigation.

The lengthiest opening statement came from plaintiff’s attorney Robert Mongeluzzi, of the Philadelphia law firm of Saltz Mongeluzzi Barrett & Bendesky, who said he plans to prove at trial that the defendants, K-Sea Transportation, Ride the Ducks of Philadelphia and Ride the Ducks International, were equally responsible for the deaths of 16-year-old Dora Schwendtner and 20-year-old Szabolcs Prem, two Hungarian students who were in Philadelphia on a cultural visit when they met their demise.

The two lost their lives July 7, 2010 when the amphibious duck boat in which they were riding was capsized by a barge in the shipping lanes of the Delaware River on the Philadelphia side.

The tourist vessel had been broken down and stranded in the river when it was struck by the sludge barge; it was later determined that the first mate on the tugboat that was pushing the barge was using his cell phone at the time of the accident.

The first mate, New York resident Matt Devlin, was subsequently found guilty of the maritime equivalent of involuntary manslaughter and sentenced to a year in federal prison.

He is currently serving his sentence.

On Monday, Mongeluzzi said he intends to prove at trial that the negligence on the part of both K-Sea Transportation and Ride the Ducks led to the two deaths.

K-Sea had a policy against the use of cell phones dating back to 2002, Mongeluzzi said, but management failed to enforce the ban.

This much was admitted to during Devlin’s deposition, he said.

“K-Sea accepted that people were going to use their cell phones while on watch,” Mongeluzzi said. “They accepted that crew members were going to violate their policies, and they did so.”

Following the deadly accident, National Transportation Safety Board investigators determined that Devlin had been distracted by disturbing news involving his young son, who Devlin learned had been deprived of oxygen for eight minutes during a routine surgery.

Devlin was on his cell phone frantically trying to ascertain his son’s condition at the time of the crash.

The record shows that Devlin had left his position in the tugboat’s upper deck and descended down below to take the cell call.

The first mate never heard the distress calls sent out by the duck boat’s captain, Gary Fox, in the moments before the tourist vessel was struck and capsized.

“There’s clear evidence in this case that management knew their cell phone policies weren’t working,” Mongeluzzi said of K-Sea.

During depositions, Mongeluzzi said, all five crewmembers who were on the tugboat that day admitted cell phone use.

When deposed, Devlin himself testified that during the 1,700 or so times he was in the water, he had often used his cell phone, according to Mongeluzzi.

“That is the definition of a failed policy,” he said. “The cell phone use was rampant, routine, continuous and an utter [distraction] to its employees.”

Mongeluzzi didn’t lay blame solely with K-Sea, saying in court that Ride the Ducks had its own policy failures that led to the deaths.

The tourist company, which has operated in Philadelphia since 2003, also failed to follow proper policy with regard to personal floatation device usage, it failed to display a federally required “anchor ball” at the time the vessel became stranded in the river, and it failed to contact the U.S. Coast Guard upon discovering that it was stuck in the middle of the river’s commercial shipping channel, Mongeluzzi said.

Mongeluzzi also blamed the incident on a “rookie mechanic,” whose failure to replace the radiator cap on the duck boat during a pre-tour inspection the night before led to the vehicle’s overheating, which duck boat Cpt. Gary Fox mistook for a fire.

The smoke filling the duck boat that was caused by the overheating is what led Fox to turn off the vehicle and call for a tow.

Fox also attempted to sound an air horn on the duck boat, but the device malfunctioned and never sounded, Mongeluzzi said, “because it was defectively designed.”

Attorney Wayne Meehan, who represents K-Sea Transportation, conceded during open arguments that Devlin, the tugboat first mate, was negligent because of his distracted cell phone use.

The attorney said Devlin had “lost his faculties” at the time he got the unnerving cell phone call involving his young son’s health condition.

But Meehan argued that as captain of the duck boat, Fox should also shoulder some responsibility for the accident because of some of his alleged failures, such as the decision not to call the Coast Guard.

Jack Snyder, an attorney representing Ride the Ducks and Kyle Burkhardt, an 18-year-old trainee who was at the helm of the duck boat at the time of the crash, said nothing his clients did “in any way caused injuries or death to these children.”

Snyder referenced documents showing that the duck boat was up to par as far as safety standards go, and that the Coast Guard certified the vehicle as being safe as recent as four months prior to the deadly accident.

As for the mechanic leaving the radiator cap off of the duck boat during a pre-trip inspection, Snyder blamed this on “human error,” and not some lack of training on the part of the mechanic, whom Mongeluzzi referred to as a “rookie.”

Snyder said since Ride the Ducks came to Philadelphia in 2003, more than 12 million passengers never experienced any injuries and had safe and gratifying experiences.

Finally, counter-arguing Mongeluzzi’s contention that the canopy on the duck boat helped lead to the deaths because the material pulled people underneath the water, Snyder said evidence shows the canopy actually helped save lives, since some of the duck boat’s passengers were able to use the material as a floatation device once they resurfaced after the boat capsized.

Part of the issue to be decided by U.S. District Judge Thomas N. O’Neill at the non-jury trial is the apparent limit of liability due to what Mongeluzzi is calling an “archaic” 19th Century maritime law that caps a defendant’s liability at the value of the vessels involved in the accident.

K-Sea has estimated the value of the tugboat at $1.65 million while Ride the Ducks asserts $150,000 in total liability based on the value of the salvaged duck boat.

Mongeluzzi’s law firm along with lawyers from the firm Ronai and Ronai, filed suit in August 2010 at Philadelphia’s Common Pleas Court on behalf of the parents of Schwendtner and Prem.

The parents were in court Monday and are expected to attend at least the first week of the proceedings, their lawyers have said.

The trial is expected to last about a month.

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