Camden captain seeks court reversal with Monday trial set for seaman's death

By Stephen Betts | Jan 04, 2019
Capt. Richard Smith

St. Thomas, Virgin Islands — A Camden captain, accused of causing the death of a crew member, is pleading with a federal judge in the U.S. Virgin Islands to allow him to have an expert witness testify remotely rather than in person.

The trial of Capt. Richard Smith is scheduled to begin Monday, Jan. 7, in U.S. District Court in St. Thomas, Virgin Islands, on a charge of seaman's manslaughter.

Smith's attorney, David Cattie, filed a motion Thursday asking Magistrate Judge Ruth Miller to reconsider her denial of a request for marine expert and consultant Capt. Stephen Richter to testify remotely from the federal court in Philadelphia. In denying the motion, the court had said it had concerns about the possibility of connectivity problems using a video feed.

The defense attorney pointed out that he has been a party to the court's using a video feed on several occasions.

"The defense in this case is facing the prospect of not having a critical witness testify because Mr. Smith is too poor to pay the costs of having the witness appear live," the motion states.

The government's prosecution of Smith has rendered him "functionally destitute," according to Cattie. The cost for Richter to travel to the Virgin Islands and testify has been estimated at $12,000.

Richter is expected to testify that Smith's actions after crew member David Pontius jumped overboard on Oct. 25, 2015, 400 miles off Cape Fear, N.C., were not negligent.

Richter is a marine and navigation consultant, master captain, and expert witness in legal cases, according to his website.

A federal grand jury in the Virgin Islands indicted Smith July 12, 2018, for seaman's manslaughter. The indictment was sealed, and Smith was arrested Nov. 2 after arriving in the Virgin Islands, where he operates his charter business during the winter. He has been free on bond since then, but prohibited from sailing or leaving the island.

The 43-foot sailing vessel was on its way from Maine to the Virgin Islands in October 2015, according to paperwork filed by the U.S. Attorney's Office. One crew member had to leave the vessel and Pontius became part of the four-member crew Oct. 21 at Beaufort, N.C.

The indictment alleges that Smith, as captain and owner of the Cimarron, engaged in misconduct, negligence and inattention to duty that led to the death of Pontius.

A Coast Guard investigator concluded that the captain of the charter sailing vessel feared for the lives of other crew members The report by the Coast Guard states that the captain and other crew members had never met Pontius before his arrival on the vessel. Soon after the boat left Beaufort, N.C., Pontius became extremely seasick, according to court documents.

Over the next few days, Pontius became dehydrated and disoriented and started experiencing hallucinations. He was on anti-depressant medication, but his constant vomiting prevented him from benefiting from his medication.

In the early morning of Oct. 25, Pontius became aggressive, according to a Coast Guard summary filed in federal court. Pontius attacked the captain, punching him twice and trying to strangle him, according to the summary. He also tried to steer the vessel to a "door" that did not exist.

Pontius eventually climbed over a wire railing and jumped overboard. Smith watched him sink into the water, with a trail of bubbles visible under the nearly full moon The captain ordered another crew member to shine the spotlight to see if he could locate Pontius.

When he could not be found, Smith allegedly said, "There is nothing we can do," and continued sailing. He tried contacting other vessels, but with no success.

The indictment asserts that the captain should have activated his emergency position-indicating radio beacon, which would have immediately alerted the Coast Guard. He also failed to properly use his VHF marine radio, and also failed to deploy a search-and-recover pattern, according to the indictment.

The prosecution notified the court Dec. 14 that it plans to present two expert witnesses who will testify that Smith should have acted sooner to help Pontius when he became ill and should have done more when the young man jumped overboard.

The Coast Guard investigator, however, said the captain and crew acted appropriately. "Nobody on this vessel was trained for this sort of situation, and I believe they tried to handle it as best they could without comms [communcations], and being so far from shore for assistance," Coast Guard Lt. Jacob Hopper states in his report.

"Once David jumped off the vessel and the Captain saw him sink into the water and not come back up, he was relieved, because at this point David was not a threat to the crew. Hindsight is 20/20 and when not placed in a situation like that, one may ask why didn't you search? Why didn't you throw a life ring and an EPIRB out? The Captain saw him go under and not resurface, and that is why he did not turn back and search, plus he was scared to death that if he [Pontius] got back on the vessel, he would throw other people overboard," the investigator's report states.

"I asked the Captain face to face about why he did not throw the EPIRB out with a life ring, and he told me that he never even thought about that with all the fear and terror that was going through his mind," the report states.

Pontius was 6 feet tall and weighed 250 pounds.

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