UPDATE: CAPE MAY - The Coast Guard Marine Board of Investigation into the sinking of the Lady Mary has recessed until April 16 or 17. The action came after the vessel's owner, Royal Smith told the panel on Wednesday, April 15, "Maybe I need counsel before I am a witness. I don't want to go to prison if some of this is shifted on me."

Smith also added, "This is more than I expected. There are too many do's and don'ts."

After he heard Smith's statements, Coast Guard LCDR Kyle McAvoy from Coast Guard Headquarters in Washington D.C. ordered a brief recess. Following that recess, McAvoy ordered a recess until April 16 or 17, since Smith indicated he wanted to have legal counsel before the proceedings advanced.

The Coast Guard Marine Board of Investigation began formal hearings on Tuesday, April 14, for the fishing vessel Lady Mary marine casualty investigation.

The purpose of the investigation is to develop conclusions and recommendations to improve the safety and operation of similar vessels. Lady Mary sank approximately 60 nautical miles off the coast of Cape May on March 24.

Board Chairman. U.S. Coast Guard LCDR Kyle McAvoy from Coast Guard Headquarters in Washington D.C. said the purpose of the hearing was to prevent similar accidents, uncover any incompetence, a lack of skill or willful act and to see if any person caused or contributed to the casualties.

The owner of the Lady Mary, Royal Smith, was allowed to question all witnesses. Smith lost his brother and two sons in the sinking.

McAvoy said the NOAA vessel Thomas Jefferson was not successful in getting photos from remotely operated vehicles at the site of the boat’s sinking. He said the sinking was considering a “major marine casualty” because six lives were lost.

Brian Curtis is the investigator in charge from the National Transportation Safety Board (NTSB). He said NTSB would issue a report separate from the Coast Guard.

McAvoy said should the need arise, any criminal findings would be referred to the U.S. Attorney’s Office.

Witnesses are expected to testify throughout the week with the lone survivor, Jose Luis Arias, expected to testify Thursday or Friday with the help of an interpreter.

A number of exhibits have been marked for the hearing including: a life ring, survival suits from two of the crew members, the life raft from the Lady Mary which was recovered by the Cutter Dependable and the EPIRB, a signaling device that goes off when it hits the water, receivable by satellite.

The first witness to testify was LCDR Tina Pena, who piloted the first helicopter on the scene, which rescued the sole survivor and recovered two bodies. She said she received notification at 7:30 a.m. March 24, was airborne by 7:55 a.m. and on scene by 8:20 a.m.
Pena said seas were 10 to 15 feet with whitecaps, gusty winds and an air temperature of 40 degrees.

Initially the flight crew spotted an empty raft, and a rescue swimmer descended down from the helicopter to get a registration number from the raft.
Pena said she spotted a plank in the water and a rescue swimmer spotted a survival suit by the plank from the helicopter.

Arias were rescued using a rescue basket. Two of the Lady Mary crew members were recovered wearing their survival suits, floating face down in the water, said Pena. The second fisherman was also tangled in line, she said.

She said by the time they had picked the third person out of the water, the helicopter, an MH-65 recently acquired aircraft, had minimal fuel left and needed to return to Air Station Atlantic City and started its return flight at 8:47 a.m. Pena said the helicopter could fly one hour 45 minutes to 2 hours in total before using all its fuel.

The helicopter lost radio communication for periods of time where it hovered low over the ocean. She said Arias informed her crew that seven were on board the Lady Mary, all had donned survival suits and he provided the name of the sunken boat.

Pena said she saw 10 to 15 fishing vessels and a large tanker nearby where the life raft was found.

NTSB’s Curtis asked Pena if she could detect the EPIRB on a frequency of 4.6 megahertz. She said she could not but received it on another frequency of 121.4 megahertz.

When Pena’s helicopter was returning to Atlantic City, two other helicopters were diverted to the site of the raft recovery. She said Arias told her rescue swimmer that the Lady Mary went down at 5 a.m.

Pena said the Lady Mary’s radio transmission should have been able to reach other boats nearby but may not have been able to reach land.

LCDR Brian Province asked if Pena heard an Urgent Marine Information Broadcast (UMIB) for the Lady Mary which asks other boats to keep a sharp lookout when an EPIRB goes off and contact the Coast Guard if anything is spotted. She said she did not hear a UMIB.

Lady Mary owner Royal Smith said when a raft hits the water, it travels, which could have taken the raft 10 to 15 miles away from where the boat sunk.

Pena said it took the helicopter 25 minutes to reach the life raft and 40 to 45 minutes to fly back to Atlantic City due to a strong headwind.

Smith said survival suits were designed to keep a person floating whether living or dead.

“If everybody got in a survival suit, my question is, where are they?” he asked.

Curtis asked if all seven men would have fit in the helicopter along with her crew. Pena said she would have located a fishing boat to assist.
She said she wasn’t sure all seven would have fit in the helicopter or if enough fuel was on board.

Rescue Swimmer, Petty Officer Third Class David Downham testified said he performed CPR on the second fisherman recovered from the water for about 45 minutes on the return flight without results. He said the third person recovered was in rigor mortis.

Downham said none of the fisherman had the face flaps fastened on their survival suits and zippers were at the half way point. The two men who did not survive had a lot of water in their suits, he said.

Petty Officer First Class Cullen Rafferty, an Atlantic Area Search and Rescue (SAR) Watch Stander, said at 7:07 a.m. an EPIRB signal notification was received from the SARSAT computer. He said two positions were given, one in the Midwest and the other 65 miles off Cape May.
He said eight minutes later, the EPIRB's position resolved to this area and he called Air Station Atlantic City which launched the first helicopter.

Rafferty said there was no information of who owned the boat in the computer because the EPIRB was unregistered, a fact that Smith disputed holding a document of its registration.

The EPIRB notification came from United States Mission Control Center in Maryland, said Rafferty.
He said the SARSAT computer indicated the EPIRB had been detected in 0 to 1 passes of the satellite and by 7:15 indicated 0-5 passes while only 2 had been received at SAR. He said that meant that three notifications from the EPIRB were missing.

By 7:20, Air Station Atlantic City was contacted to launch a helicopter. A message was broadcast to notify other vessels he said.
Rafferty reiterated there were numerous other fishing vessels in the immediate area.

He said they ran a Cold Exposure Survivability Model, which indicated a functional time of 2.6 hours and a survival time of 4.8 hours in the water based on all factors.

Smith said the EPIRB was sending out a signal at 4:24 a.m.

“That’s three hours,” he said.

Petty Officer First Class Trista Fisher, an Operations Unit Controller of Coast Guard Sector Delaware Bay testified that urgent marine broadcasts began at 8 a.m. which were sent out every 15 minutes.

No response was received until 11 hours later from the captain of the fishing vessel, Kathryn Marie, who reported hearing a mayday at 5 a.m. Fisher said no mayday calls were received at Sector Delaware Bay.

Fisher testified one of two radio towers was out of service for urgent marine information broadcasts for high frequency transmissions. She said other towers overlap the area.
The hearing resumes at 9 a.m. Wednesday April 18.