The opinion of the court was delivered by: BROTMAN
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 LaBrecque, avid boaters, the voyage was to be the culmination of a dream, that dream being the beginning of a new life of semiretirement 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. § 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. § 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. § 1461(d).
Central to each of the three counts are six acts or omissions of the defendant which 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.
The Government has completed the presentation of its case and the defendant has made a motion for judgment of acquittal.
Fed.R.Crim.P. 29(a) provides in pertinent part:
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, weight 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. Showers had been predicted.
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.
At this point in the evening the sinking vessel was abandoned.
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.
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. § 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.