The captain was indicted on a new charge of burning a boat that killed 34 people off Southern California.

The captain of a California dive boat that caught fire in 2019, killing 34 people on board, was indicted Tuesday of a new count of negligence in the disaster.

Jerry Nehl Boylan, 68, was indicted by a grand jury on charges of ship officer’s misconduct or negligence, the U.S. Attorney’s Office in Los Angeles said.

The new indictment comes a month after a judge dismissed a previous indictment because it was not based on gross negligence in the indictment document.

The case was dismissed without prejudice, which means it could be dismissed again, according to court records. The new indictment pleads gross negligence.

Federal public defenders named Boylan’s representatives did not immediately respond to a request for comment on Tuesday evening.

The charge carries a maximum of 10 years in prison, the US Attorney’s Office said.

Prosecutors say Boylan did not have night surveillance and did not attempt to fight the fire, among other missteps. The fire broke out in the early morning of September 2 when the ship was anchored off the island of Santa Cruz.

Tuesday’s prosecution also alleged that Boylan was the first to abandon ship and cites “his inability to carry out life-saving or fire-fighting activities of any kind at the time of the fire.”

Boylan’s defense attorneys have claimed in previous documents that Boylan made a distress call but was overcome by smoking and jumped into the water. He swam in the back, but the deckhouse and passenger escape “were completely engulfed,” they said.

Thirty-three passengers and one crew member died. They were sleeping below deck when the fire broke out, officials said. Boylan and four other crew members survived.

Federal investigators never determined the cause of the fire because the boat burned and sank.

But the National Transportation Safety Board blamed the owner and operator of the Conception for the lack of supervision and said the lack of a traveling patrol allowed the fire to grow and caused so many deaths.

The NTSB also blamed the Coast Guard for failing to enforce itinerant patrols and said the Coast Guard must verify that ship operators are carrying out patrols as required.

All 34 people died from smoke inhalation, the NTSB said. There were two exits from the docking area, and both “led to the closed area filled with fire and smoke above,” he said.

Boylan was initially indicted in December 2020 on 34 counts of what the prosecution called “sailor manslaughter,” a term sometimes used to refer to misconduct or negligence in the ship’s officers’ charter.

But in July, prosecutors filed a replacement indictment that accused a tally that covered the deaths of all 34 people, according to court documents.

When US District Judge George H. Wu dismissed the charge in September, he did so after Boylan’s attorneys said a gross negligence charge was a mandatory element of the crime. Wu wrote that he found the argument compelling.

After the fire, Congress in 2020 required the Coast Guard to adopt NTSB regulations as part of a federal law that dealt in part with funding authorization, according to the transportation agency.

The Coast Guard announced new safety rules in January, the Associated Press reported at the time.

The Associated Press And Diana Dasrath contributed.

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