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PHILADELPHIA - Allegations of a blatantly unsafe tourist duck boat and a tug boat operating "blind and deaf" while pushing a city-owned sludge barge are detailed in a sweeping wrongful death complaint filed Aug. 10 in the Philadelphia County Court of Common Pleas by lawyers representing the families of the two Hungarian student-tourists who drowned July 7, 2010, when the barge rammed the duck boat in the Delaware River.
The action, the first complaint filed in the aftermath of the incident, includes a claim for punitive damages based on the alleged outrageous conduct of the defendants.
The complaint was filed by plaintiff's co-counsel Holly Ostrov Ronai and Peter Ronai of Ronai & Ronai LLP and Robert J. Mongeluzzi and Andrew R. Duffy of Saltz, Mongeluzzi Barrett & Bendesky PC on behalf of the parents of Dora Schwentner, 16, and Szabolcs Prem, 20, who drowned when the barge, The Resource, capsized the duck boat in which they were passengers. The parents are Peter Schwendtner, Aniko Schwendtner Takacs, Sandor Prem and Gizella Prem.
The complaint names as defendants Ride the Ducks of Philadelphia, owner-operator of the ill-fated tourist boat DUKW 34; Herschend Family Entertainment Corp. of Norcross, Ga., the parent company of Ride the Ducks; K-Sea Transportation Partners LP of East Brunswick, N.J., owner-operator of Caribbean Sea, the tugboat; Amphibious Vehicle Manufacturing of Branson, Mo., builder of duck boat 34; and the City of Philadelphia, owner of the 290-foot barge.
Mongeluzzi, outlining the 13-count complaint, said:
Circumstances on July 7, 2010, would have been dramatically different had the defendants followed the National Transportation Safety Board's (NTSB) earlier warnings to upgrade safety features on the duck boats in the aftermath of the May 1, 1999, fatal Miss Majestic duck boat sinking on a lake in Arkansas. Ten months after the Miss Majestic disaster the NTSB told the industry: "Without delay, alter your amphibious vessels to provide reserve buoyancy through passive means, such as watertight compartmentalization, built-in flotation, or equivalent measures, so that they will remain afloat and upright in the event of flooding, even when carrying a full complement of passenger and crew."
Three years later, in 2002, the board would still find that "[u]nacceptable levels of risk to passenger safety continue to exist in these vehicles . . . because the industry has failed to take voluntary action to address [the risk posed by lack of adequate reserve buoyancy]."
The tourist duck boat industry has been plagued with accidents and has been an ongoing safety concern of regulators. After a December 1999 public meeting, attended by industry representatives regarding the Miss Majestic, the NTSB concluded that "[o]ne major outcome of the forum was the realization by participants that amphibious vehicles pose unique and unresolved safety risks to the public, but that the vehicles could be made safe by installing safety features that would prevent them from sinking when flooded."
Ostrov Ronai said the operators "totally ignored the NTSB's plea to either make the boat unsinkable or remove the death-cage canopies that entrap and kill passengers."
Mongeluzzi said NTSB Miss Majestic investigators found the safety hazard was more ominous when the boats are equipped with canopies. Reflecting on the July 7, 2010, fatal accident, and quoting from the complaint, he said the NTSB final incident report in 2002 concluded that those canopies "essentially caged" passengers, making escape in the limited time available extremely difficult. Its report stated that "[t]he natural buoyancy of passengers' bodies force them into the overhead canopy, which acted like a net to entrap them and prevent their vertical escape." The canopies, used as a convenience, "present major safety risks . . . [especially since] . . . this unique vehicle is often promoted to and used by school groups. The Safety Board, therefore, concludes that, on amphibious passenger vehicles that cannot remain afloat when flooded, canopies represent an unacceptable risk to passenger safety."
Herschend, which purchased Ride the Ducks in 2004, owns and operates numerous family attractions and properties, including Ride the Ducks; Adventure Aquarium, Camden, N.J.; Stone Mountain Park, Atlanta; Newport Aquarium, Rhode Island; and Dollywood, Nashville, Tenn.
The attorneys are also asking the City of Philadelphia and the U.S. Coast Guard to bar duck boat service until the vessels are made safe.