Attorney asks for indictment against Maine captain to be dismissed

Coast Guard investigator says captain feared for lives of crew

By Stephen Betts | Nov 25, 2018
Photo by: Captain Richard Smith's family Capt. Richard Smith is pictured in a Gofundme page that his daughter started.

St. Thomas, Virgin Islands — A Coast Guard investigator concluded that the captain of a charter sailing vessel that is based out of Camden during the summer -- charged with seaman's manslaughter -- feared for the lives of other crew members if he had stopped to search for a crew member who experienced a psychotic episode before attacking him and then jumping overboard 400 miles off the East Coast.

The report by Coast Guard Lt. Jacob Hopper was filed in federal court by the defense attorney for Capt. Richard Smith, who operates the sailing vessel Cimarron.

A federal grand jury on the Virgin Islands indicted Smith July 12 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.

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 David Pontius on Oct. 25, 2015, off Cape Fear, N.C.

The 66-year-old captain was released on $25,000 bond, but terms of his release require Smith to reside in St. Thomas and to be in his residence from 7 p.m. to 6 a.m. daily.

Smith's attorney filed a motion Friday, Nov. 23, to dismiss the indictment, maintaining that the venue was improper. He argued in his motion that if the federal government wants to charge him, it should seek an indictment in Maine.

The report by Hopper 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.

Smith did not report the incident until 36 hours later, according to the indictment.

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," Hooper 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.

Smith's attorney has asked the court to amend the conditions of release for his client to allow Smith to act as a charter captain and travel freely. No court date on that motion has been scheduled.

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.

According to the U.S. Attorney's Office, an eyewitness stated that Smith threw a life ring overboard, and stated something to the effect of "at least I can say I threw a life ring,"  court papers filed by the prosecution state.

The family of the lost crew member has filed a civil lawsuit against the captain.

The trial is tentatively scheduled to start Jan. 7.

The U.S. Attorney's Office has been investigating the case since the incident occurred nearly three years ago.

The Virgin Islands are situated east of Puerto Rico.

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