"Whoever made a decision to keep those people on the boat could very well be liable,'' said maritime attorney Mike Eidson, with Colson Hicks Eidson in Coral Gables.

The hurricane and storm surge were foreseeable conditions, Eidson said. And the operator of the boat had a duty to exercise reasonable care for the safety of the passengers.

"I just can't believe they couldn't find a safer place on land than trying to ride this loose on the harbor,'' he said, "where you could be capsized by a storm surge, where you could be capsized by high winds, where people could be struck by loose objects and where they could be struck by other boats that broke loose from their moorings.''

Miami Herald


Negligent Homicide
The killing of another person through gross negligence. It can also be considered a death that is the result of the negligent operation of a motor vehicle, which includes the operation of a boat or snowmobile.

Criminal Negligence
Recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences).

 Negligence
The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care.
Foresee ability: The ability to see or know in advance, hence, the reasonable anticipation that harm or injury is a likely result of acts or omissions.


In Belize, the legal term for the mass drowning of the victims of the Wave Dancer is "Wrongful Death."






  • Immediately after the accident, Patricia Rose, spokesperson for Peter Hughes Diving, is quoted in an Associated Press article:
The boat capsized in approximately 12 feet of water. It did not sink but is turned on its side. We did have a boat near the Wind Jammer when it capsized during Hurricane Mitch. We're hoping for survivors but I don't know that it's likely.
  • The statement clearly indicates the "foreseeable consequence" of the capsizing of the Wave Dancer.
  • If knowledge that a Category 4 hurricane was heading directly for Wave Dancer is not enough to support that claim, three years earlier, during Hurricane Mitch, the Peter Hughes boat Wind Dancer disembarked its passengers on the island of Guanaja (Honduras) and was waiting out the storm only miles away from the Windjammer boat Fantome when it overtaken by Mitch and sank with 31 crew on board.

It is unclear why Peter Hughes' Diving off-loaded passengers during Hurricane Mitch and failed to follow the same safety procedure during Hurricane Iris.

  • William Huggett, a Miami lawyer who represents mariners, filed lawsuits for the families of five Fantome crew members. 

  • Within days of the Wave Dancer accident, Nelson Ayala, an investigator from  Huggett's law firm, is in Belize:



''This is just a senseless tragedy.''
Bill Huggett


October 16th, 2001
  • Huggett's law firm  files a lawsuit against Peter Hughes, Peter Hughes Diving, Wave Dancer, Ltd., and Captain Philip Martin for damages in excess of $10 million on behalf of Alberto Hall (Eloisa Johnson's' husband) and other of her family members. The firm later files a suit on behalf of Brenda Wade's survivors.
  • Additionally, they state that the company's captain insisted on taking the passengers on a dive to ensure full payment despite the impending hurricane; cut off nearly all communication; failed to heed numerous warnings to take passengers to shore; improperly tied down the boat; and did not provide life jackets.

It's still under investigation, but there's been a lawsuit, it's been filed and there is particular allegations that we are attempting to prove, and already have enough evidence. We believe that it's gross negligence on the part of the Peter Hughes organization. We believe that everyone should have been disembarked immediately upon hearing of an approaching storm. It's arrogance to keep them on the vessel. This claim that there weren't any hotels available is ludicrous. We know there were plenty of places of safety other then being on a vessel when a storm of that size and magnitude is approaching. So that's the thrust of the lawsuit. Also, there are other matters that right now I can't talk about because we're in the process of proving it.
Nelson Ayala
11/2/01


November 7th, 2001

William Huggett addresses family members and family representatives of those killed on board the Wave Dancer in Richmond, Virginia:

I learned a couple of interesting things, but most of it was pure hype, conjecture, performance, and solicitation. Dave DeBarger finally stood up and told the guy to just cut it out.

All the evidence he presented was stuff I had already found on the internet or heard on the news. Even the videos he showed I had already seen on TV. The only thing he had that was interesting was photos of the Wave Dancer taken yesterday. She has been righted but not fully floated yet. Interestingly, there is actually very little visible damage to the vessel.

I would say half the families didn't stay for the presentation. The ones that did, did so to see the photos. I think most people were able to get a read on this guy pretty quickly.

Anyway, the interesting things to note (although you need to recognize that while his investigator is aggressive he is not necessarily accurate, so I don't know how much weight to give them) are as follows:

Belize officials (not clear on whether they are NEMO officials or Port Authority) are filing criminal charges against Captain Philip Martin.

Huggett stated that there were four things to be concerned about with this case:

1. Doctrine called Forum Non Convenus (sp?) basically saying you wouldn't be
able to try the case in Va. and that it would be moved to Miami.

2. Waiver - he plans to battle it using these tactics: there are state and federal statutes that say a shipowner is not supposed to make people sign a waiver releasing them from normal ship operations; there is case law to support that and the releases won't stand in court; plus, the releases were tailored to scuba diving activities only, not the dive boat operation.

3. Limitation of Liability - he says this can be voided if it can be proven that the boat owner knew about the negligence in mechanical upkeep, safety items that were not installed, and also that he (Peter Hughes) was on the phone the whole time with the Captain. Ian and two crew members have already been deposed, and have affirmed this information.

4. DOHSA - the laws of Belize allow plaintiffs to sue for pain and suffering, damages and loss of consortium. He wants to file the case in Miami but apply Belize law. He is also unbelievably trying to prove that several of the deaths occurred on land (i.e. in the mangroves nearby) so that DOHSA doesn't apply. How he will do this I don't know since all the death certificates were rubber-stamped "Death by Drowning" and no autopsies were performed here. Plus, many of the bodies have been cremated at this point.

When asked about the dollar amount that could be recovered he mentioned something about the 4.5 million dollar insurance policy but also talked about PNI and PH's other assets.

M
(personal email from Milly Armao)

  • Initially, the area of most interest is Peter Hughes' assets and the method by which he incorporated each of his vessels, important in order for attorneys to be able to 'pierce the corporate veil.'  This phrase refers to the method of reaching through a corporation to its alter ego to reach assets of the alter ego (and possible the alter ego's other holdings).  In lieu of that, recovery is limited since the M/V Wave Dancer's protection and indemnity policy is $5 million ‹ and wasting. 



November 21st, 2001



December 5th, 2001
  • Judge Joan A. Lenard accedes to the Hughes' plea for exoneration. All claimants must now file suit against Hughes by January 30th, 2002 or their complaints will not be heard. (PDF)
  • Families of the Wave Dancer victims, who are still struggling to cope with their loss(es) and the numerous details of settling the estates of their loved ones, are now forced to add another burden to their load; whether or not to pursue legal action against Peter Hughes for the causing the deaths of their loved ones.
  • If they decide to sue, they have little more than a month to file their claim.
Whether the families actually file suit or not, it is important for them to have representation; someone knowledgeable to talk to about their options.  They need to understand their potential remedies and risks before they can make an informed decision (e.g., not to bring a claim at all, settle before suit, file suit, etc.). In any case, even families that decide not to file suit will feel better if they feel like they were well informed.  They don't want to have second thoughts years from now about not pursuing Peter Hughes, if they feel like he contributed to their loss.

As to timing, under US law, there is no statute of limitations issue for some time, but the answer under Belize law, which may apply, is unknown. It is possible that  Peter Hughes Diving will seek limitation of liability (limit ALL recoveries to the total value of the vessel).  If so, and this is successful, the total recoverable amount may be limited to the value of the vessel after the accident.  There are various ways to potentially defeat this.  The families would prefer that this determination -- and the adjudication of the release issue and all of the claims -- be made in Richmond if at all possible, as opposed to Florida, for fairly obvious reasons. Also, the families should have someone doing a factual investigation on their behalf.  Evidence has a tendency to disappear over time.  You can be sure that Peter Hughes has done a thorough factual investigation supporting his defense (e.g., in many maritime casualty cases, we have an investigator on the ship within hours of the disaster. Peter Hughes should allow a survey of the vessel or, if this gets into litigation, the court will presume that the evidence on the boat would not have been helpful to him if he refuses the families' reasonable demand to inspect).  I am concerned that as time passes, the families will lose significant control and rights.  As you know, one suit has already been filed in Florida. Whether its us or someone else, the families should seriously consider retaining counsel now.

Advice from Independent Legal Counsel to Steve Glenn, Legal Counsel for the RDC




January 30, 2002

  • The families who decide to sue Peter Hughes for the wrongful deaths of their loved ones file complaints against Peter Hughes Diving totaling nearly $17 million.
  • The lawsuits allege:
  • Peter Hughes is the single person who made and concurred with all of the final decisions concerning those negligent, reckless, careless, and fatal actions which resulted in the sinking of the M/V Wave Dancer and the injuries and deaths of those passengers and crew members aboard it.
      • The Wave Dancer, Ltd., is a dummy paper corporation that uses the Turks and Caicos Islands as a "country of convenience." This incorporation is designed to evade taxation, as well as United States safety laws, SOLAS safety laws, and liability in case of an accident.
      • The M/V Wave Dancer flies a Belizean "flag of convenience" which is designated to evade taxation and avoid safety requirements of the United States Coast Guard, SOLAS and other safety and surveying companies which would have provided and required safer operations for the M/V Wave Dancer vessel.
      • Philip Martin, the Captain of the vessel at the time of the accident, was inexperienced and took all his orders directly and daily from Peter Hughes by satellite phone, by radio and by cellular phone.
      • On or about October 6th and 7th, it was well known to the Plaintiffs-in- Limitation, as well as all those who monitored any form of weather service, that Hurricane It is was brewing and potentially threatening the Belize coast, as well as the dive areas in which the M/V Wave Dancer was intending to operate.
      • Despite this knowledge, and at the direct order of Peter Hughes, the M/V Wave Dancer departed it's berth and traveled to a dive spot and made a dive for those on board.
      • Additionally, in order to keep the cruise passengers uninformed, to prevent the passengers from becoming alarmed and/or concerned, and to maintain control over the crew members who might protest, Captain Martin intentionally disconnected and/or disabled radio receivers positioned throughout the vessel and only left one operating in the wheelhouse. This was done with the knowledge and at the orders of Peter Hughes.
      • During this time, the government of Belize issued a mandatory hurricane evacuation order for life saving and safety purposes. Peter Hughes and Captain Martin, recklessly, negligently, imprudently and illegally, ignored this governmental order.
      • Captain Martin navigated the vessel past Belize City where he could and should have docked and abandoned the vessel and secured all passengers and crew members in any number of high-rise hotels or safe structures. Captain Martin, at the orders of Peter Hughes, forbade the crew to get off and forbade the crew to alert the cruise passengers and decided instead, to sail on to a remote area in an inlet or bayou called "Big Creek," approximately 80 miles from Belize City.
      • All actions taken by Captain Martin on the date of the incident were communicated to Peter Hughes by satellite phone or radio. Peter Hughes knew of, agreed with, and acquiesced in, all the negligent and/or reckless actions, and/or ordered said actions.
      • While at Big Creek, no safety orders or precautionary instructions were given to the crew or the passengers. None were ever told or instructed to wear life bests at all times during the storm, or to assemble in a designated safe area, or to be ready to evacuate in any case. Captain Martin remained in the higher portion of the vessel's wheelhouse from which evacuation could be easily and effectively done. As a result of this negligence, carelessness, recklessness or intentional acts, when the eventual tragedy occurred, Captain Martin escaped harm's way while 17 passengers and three crew members perished.
      • When Hurricane Iris struck the Big Creek area the M/V Wave Dancer was negligently and recklessly moored or tied. The creek side of the vessel was not tied or moored at all, but instead, was left adrift. The side of the vessel that was tied to the shore and the dock, was insufficient, extremely short and tight, with inadequate lines or ropes. As expected, a storm tidal surge of approximately 15-20 feet rose and hit the area where the vessel was improperly and/or negligently moored. This rapidly rising surge caused the vessel to rise up. The vessel, moored on one side with inadequate lines and bits, and free on the other, blew free when the lines broke and bits pulled out off the deck, The M/v Wave Dancer then rolled, took on water and capsized, trapping those on board. The vessel was then blown across the inlet channel and slammed into the mangroves.
      • The Captain Martin's recklessness and negligence is evidenced by the fact that another vessel was moored adjacent to the M/V Wave Dancer but was properly tied. Passengers and crew members aboard this other vessel were prepared with life jackets on When the tidal surge rose, this other vessel rose with the surge and stayed afloat. There was no loss of life, and no damage to the vessel.
      • Immediately after this tragic incident, Captain Martin was arrested by the authorities. However, due to the efforts and influence of Peter Hughes, Captain Martin was released and immediately flown out of the country and is presently living in New Zealand.

FURTHER ACTS OF NEGLIGENCE:

      • Peter Hughes inadequately maintained the vessel and failed to follow safety rules as set out by SOLAS, the United States Coast Guard, Classification Society Rules and Regulations, and other organizations which promulgate safety rules, procedures and structural precautions for vessel like the M/V Wave Dancer.  Examples include, failure to conduct periodic dry dock safety haulings and survey inspections, or when done, they were ignored and disregarded. Structural changes had been made to the vessel that made it unsafe. For example, safety hatches and doors that would have prevented rapid water entry had been eliminated to save money or for other purposes. These structural changes made the vessel unseaworthy. Had theses safety precautions such as water tight doors and sealed bulk heads had been left in place, had normal surveying, classification society, SOLAS., and U. S Coast Guard Rules and regulations been followed, had the vessel been periodically overhauled and safety checked as required by the U.S. Coast Guard and other safety organizations, it is more likely than not, the vessel would have weathered the hurricane and storm surge and would not have sunk. Even if the M/V Wave Dancer would have partially rolled over in the storm surge, it would have righted itself, thus, resulting in far less loss of life or injury to those aboard.
      • Furthermore, Peter Hughes engaged in the unsafe practice of dumping the ship's used dirty liquid into the vessel's bilge. The vessel's untreated waste water was collected in a small tank. At the time of the accident, this waste water which had collected in the tank and bilge, contributed to the ship's instability when the vessel rolled during the hurricane and surge, allowing water to rush in. All of these cost cutting measures which disregarded safety rules, were done against the advice of prior captains of the M/V Wave Dancer and were done at the direction of Peter Hughes.

February 2003

  • Retired Richmond (Virginia) Circuit Judge Robert L. Harris Sr. is chosen to mediate the claims as he had local knowledge that the Federal Court in Miami did not have.
  • Since Peter Hughes essentially confessed judgment, there was nothing to be done but collect the deductions from the insurance and grade the relative losses among the club members, both living and deceased and distribute the proceeds accordingly.
  • The lawsuit against Peter Hughes is settled out of court. The amount received by each of the families varies according to factors like age and number of dependents, and under the terms of the settlement the individual amounts cannot be disclosed. The total, however, is limited to the size of the Wave Dancer's insurance policy: five million dollars. 
  • The insurance policy payout also covers the salvage of the Wave Dancer, and Peter Hughes' legal fees.


Nearly a year after the Wave Dancer dive-boat disaster in Belize, an insurance settlement has been reached that has left Peter Hughes Diving Inc. intact and most everyone else feeling like they have been victimized again.

"It is a horribly disappointing ending," said Jeffrey A. Breit of Norfolk, one of several lawyers representing the 23 victims ‹ three of whom survived.

Most of the victims of the Oct. 8 capsizing during Hurricane Iris were members of the Richmond Dive Club in Richmond, Virginia. Payments for each victim range from several thousand dollars to several hundred thousand dollars.

"Is there any justice in this world?" asked Heather Johnston, who lost both her parents, Byron and Shirley Johnston of Chesterfield, Va. She wanted Peter Hughes Diving held liable for the tragedy. But the settlement shields the firm from further lawsuits, lawyers for the victims said.

So ends a complex global search for Peter Hughes Inc.'s assets that saw the victims' lawyers fighting together to keep the case from being mired in international law and possibly heard ‹ years from now ‹ in Belize courts.

"Unless we wanted this to last decades, there was no way to hunt for Peter Hughes" in wrongful-death suits, said Kenneth W. Paciocco, a Richmond lawyer who represented the three Richmond-area survivors and the families of three who died. It took a monumental effort "just to get it to this point," Paciocco said.

Breit said Peter Hughes Diving had set up each of its numerous diving vessels as separate corporations, some of them with headquarters outside the United States. That made them "difficult to pierce," he said.

"Our options were limited to next-to-nothing," Breit said. And since the fees from all the lawyers involved would be deducted from the insurance settlement, "we decided to stop the bleeding."

Retired Richmond Circuit Judge Robert L. Harris Sr., a widely respected mediator, weighed each claim, as agreed by all the lawyers representing the victims. Harris set payouts based on the wage-earning capacity of the victims, the age of their children and the closeness of relationships to surviving family members. "He was most concerned about taking care of infant children left behind," Breitt said.

The payouts set by Harris totaled well over $17 million. But there is only about $4 million left from the Lloyd's of London insurance policy on the Wave Dancer operation. [While the initial policy was $5 million, nearly $1 million was spent by Hughes to refloat and move the Wave Dancer and then the lawyers will take their fees.]

So payments will be made based on "pro-rata" percentages. For example, a family with young children who lost both of their parents will get roughly twenty percent of the payout, Breit explained. Richmond divers who survived the tragedy will get less than one percent.

"I'm just glad it is over," said Richmond Dive Club's Dave DeBarger, believed to be the last one to escape the overturned craft. "They who lost the most, got the most." He is pleased that the largest portion of the settlement goes to the children of the victims.

"There's not enough money in this world to recompense them for what they lost," DeBarger
said. "I'm glad for every dime they get."

But DeBarger, who lost longtime friends in the disaster, also feels cheated by the settlement. "I never went into this to get money. I went into this to get to the truth. Unfortunately, the truth hasn't come out."

Breit said "evidence in the case we were able to develop was enough to support a gross negligence claim . . . I think the liability on Peter Hughes was overwhelming."

Among those issues, according to Breit: The Wave Dancer was the last dive boat to head for shore as the hurricane approached; the boat's captain, who was in contact with Peter Hughes via satellite phone, continued to head for Big Creek, even though hurricane trackers warned the storm had changed directions and was heading that way; the 120-foot-long boat was moored to a dock with a substantial portion of its prow exposed in the Big Creek channel; those aboard the craft were not told to go ashore; scuba gear was not made handy in case of disaster; and the boat's lines were not properly tended.

The investigation into the disaster by the International Merchant Marine Registry of Belize has not been completed. Peter Hughes was not available for comment, but the firm's Web site notes that the Wave Dancer has been replaced by Sun Dancer II, which is "the largest, most luxurious vessel and the flagship of the Dancer Fleet, which will bring a whole new dimension to live-aboard diving in Belize."

"There was never any doubt we would return to Belize," Hughes is quoted as saying on the site. "We are extremely excited to be going back, we love the destination, and it has always been one of our most popular."

This deeply rankles Heather Johnston. "Why is Peter Hughes still licensed to operate a dive boat in Belize after killing twenty innocent victims there?" she asked. "Can the United States exert its power in Belize to counteract the financial power that Peter Hughes has there?"

Richmond Times-Dispatch


Sources:
Associated Press
Black's Law Dictionary
CDNN
Channel 5 News, Belize
Dave DeBarger
Steve Glenn
Richmond Times Dispatch
University of Miami Law School
 US District Court, Southern District, Florida
www.flamewriter.com






















All contents of this site © 2005 Milly Armao, except where otherwise noted.