The Indiana Bar Foundation and The National High School Mock Trial Championship are proud to present
State of Indiana v. Smith Dawson 2021 National High School Mock Trial National Championship Case
Copyright ©2021 Indiana Bar Foundation 615 N. Alabama St. Ste 426, Indianapolis, IN 46204 317-269-2415; www.inbf.org
The case materials were created solely for the Indiana Bar Foundation for the purposes of hosting the National High School Mock Trial Competition in Evansville, Indiana. Reproduction of the case materials is not permitted for any other purpose. The names and events described herein were intended to be fictional. Any similarity or resemblance of any character to an actual person or entity should be regarded as coincidental.
Acknowledgements
Thank you to the following organizations for their support of the Indiana Bar Foundation and their efforts to host the 2021 National High School Mock Trial Championship: Indiana Bar Foundation Board of Directors National High School Mock Trial Board of Directors Indiana Supreme Court U.S. District Court, Northern District of Indiana U.S. District Court, Southern District of Indiana City of Evansville, Indiana Evansville Bar Association
This case is an original work, authored by the 2021 national case writing subcommittee of the Indiana Bar Foundation. Thanks to the team of writers and editors who produced this case: *Scott Barnhart, Esq., Office of the Indiana Attorney General Ryan Costantini, Esq., AM General LLC Janice Houghton, Heritage Christian School Tim Kalgreen, M.Ed., Indiana Bar Foundation Adam Packer, Esq., GTECH Indiana LLC First Lieutenant Haley Roach, Esq., United States Army *Denotes Committee Chair
The case writing team also thanks Mr. Ron Fox, Esq., Fox Galvin, for his expertise in his review of the case.
Indiana Bar Foundation Staff Charles Dunlap, J.D., President & CEO Kim Berry, Director of Development & Communications Kate Guererro, Director of Indiana Legal Help Tim Kalgreen, M.Ed., Director of Civic Education Lily Lawson, Chief Administration Officer Kayla O’Brien, Communications & Events Manager Joseph O’Connor, Civic Education Manager Marilyn Smith, J.D., Vice President & Director of Civil Justice Programs Michael Tranovich, IOLTA Manager / Finance Manager
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Table of Contents
Item Page Copyright 2 Acknowledgements 2 Case Introduction/Background 4 Stipulations 5 List of Witnesses 7 List of Exhibits 7 Indiana Code 8 Charging Document 10 Statement of Noah/Noa Hitter 12 Statement of Dr. N.J. Neer 21 Statement of Jordan Bennett 31 Statement of Smith Dawson 42 Statement of Obie Goode1 55 Statement of Portino/Portina Storm 64 Exhibits 71
Case Release Notes:
Version 1.0 – Released 4/1/21 Version 2.0 – Released 4/14/21 Version 3.0 – Released 4/22/21 Version 4.0 – Released 4/29/21
1 Changed from previous version via Errata #10. Any occurrences later in the case should refer to Obie Goode. References to Obie Servant are unintentional and should be assumed to be Obie Goode.
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INTRODUCTION
This introduction is of no legal significance and is used for convenience only. It is not admissible for impeachment purposes or for any other purpose.
The LST-325 is a decommissioned Tank Landing Ship built in Evansville in 1942 and used during the D-Day invasion. Since 2005, it has been docked in Evansville as a memorial to the men who sailed the LSTs and the city’s war effort.
On May 4, 2019, several members of the Evansville River Rats, the local professional baseball team in an independent co-ed league, were filming a promotional video aboard LST-325. As they have since 1915, the River Rats play their home games at Bosse Field, the third oldest ballpark still in regular use in the United States (behind Fenway Park and Wrigley Field). Among the people on LST-325 was Noah/Noa Hitter, the team's Marketing Manager. After the shoot, Jamie "Catfish" Hunter, one of the River Rats pitchers, invited Hitter to go jug fishing along the Ohio River. Jug fishing is a method of fishing that uses lines suspended from floating jugs to catch fish in lakes or rivers.
That same evening, Smith Dawson was serving as the captain of M/V Susan K. Roberts, a towboat belonging to the Knob Hill Barge Company (KHBC). Dawson is the majority owner of KHBC, which was founded in 1936 by Dawson’s grandparents, Jack and Rose, and has moved down the generations. Today, KHBC operates approximately 500 barges with a fleet of approximately 20 ships and 10 towboats on the Ohio, Mississippi, Cumberland, Tennessee, and Monongahela Rivers. However, in April of 2019, after never really recovering from the 2008-09 financial crisis, Smith signed a term sheet to sell a portion of the business to a private equity firm to keep capital moving. That deal was set to close in September of 2019.
On May 4, 2019, the M/V Susan K. Roberts left the Newburgh Lock and Dam, approximately sixteen miles upriver from downtown Evansville, at 6:34 p.m., under unusual circumstances seemingly occupying Dawson’s mind. First, due to high water, a “Slow, No Wake” order was issued for the portion of the river around the Evansville oxbow. Next, from the investment company, the minority owner of the KHBC, was on board the ship. Third, it was unusual to travel a barge like the M/V Susan K. Roberts at night. Also adding to the circumstances was that the shipment onboard the M/V Susan K. Roberts was behind schedule getting to the destination, possibly leading to financial penalties.
As the M/V Susan K. Roberts neared Dress Plaza in downtown Evansville, the river became clogged with floating log debris and recreational boaters still out on the water. A crash was heard and felt on the boat as it maneuvered through the Evansville oxbow. However, Dawson determined it was minor and kept going to the M/V Susan K. Roberts’s scheduled docking port in Mt. Vernon, Indiana. It was, in fact the case, that the M/V Susan K. Roberts hit Catfish’s small fishing boat. Catfish died in the accident and Hitter survived.
Following an investigation, the United States Coast Guard referred the matter to local law enforcement. The Vanderburgh County prosecutor, on behalf of the State of Indiana, charged Smith with two Level 5 felonies: Reckless Homicide and Leaving the Scene.
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STIPULATIONS
1. All exhibits included in the problem are authentic in all respects, and no objections to the authenticity of the exhibits shall be entertained. 2. Stipulations cannot be contradicted or challenged. 3. Jurisdiction in Vanderburgh County, Indiana is proper and cannot be challenged. 4. Neither federal nor maritime law applies. 5. The signatures on the witness statements, exhibits, and all other documents are authentic. 6. The Charge of the Court is accurate in all respects; no objections to the charge shall be entertained. 7. Chain of custody for evidence is not in dispute. 8. The defendant voluntarily waived his/her Fifth Amendment rights and will testify at the trial. No Fifth Amendment privileges will be entertained. 9. The defendant has waived his/her right to bring a Confrontation Clause challenge to any evidence in this case. No objection or argument based on the Confrontation Clause will be entertained. 10. The Introduction provided is for background purposes only. It is of no legal consequence in terms of the trial and is not admissible for impeachment purposes or for any other purpose. 11. The United States Coast Guard Auxiliary is a volunteer service chartered by the United States Congress (14 U.S.C. § 821 et seq.) and overseen by the United States Department of Homeland Security and its agency, the United States Coast Guard. Its purpose is to assist the Coast Guard as authorized by the Commandant, in performing any Coast Guard function, power, duty, role, mission, or operation authorized by law, including patrol operations, where ordered to do so (14 U.S.C. § 822). 12. Any occurrences of a gender-specific pronoun used in reference of a character that can be called as a witness is unintentional. Assume the pronoun is gender neutral. 13. Special Agent Melissa May is a member of the Indiana National Guard’s 38th Infantry Division. She was called to active duty on December 1, 2020 and was deployed to Al Udeid Air Base in Doha, Qatar in support of military operations in the Middle East. 14. Detective Steven David was hired as a Deputy United States Marshal in February 2021. At the time of trial, he will be attending class at the Federal Law Enforcement Training Center in Glynn County, Georgia. 15. Exhibit 1 is a blank Vessel Safety Check identical in form to the Vessel Safety Check form discussed in the case. 16. Exhibit 2 is an accurate depiction of the Evansville area but is not to scale. The locations marked on Exhibit 2 are accurately placed on the map. 17. Exhibit 3 is a picture of the M/V Susan K. Roberts pushing a group of approximately 23 barges. Exhibit 3 was taken from KHBC’s marketing materials and does not depict the Roberts on the date of the collision at issue. 18. Exhibits 4-7 are reports of the Coast Guard Investigative Service. They were maintained in the records of investigation of the collision at issue and were produced by the CGIS from its files to the prosecuting attorneys for the State of Indiana in response to a request for records from those attorneys.
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19. Exhibit 8 is taken from the public website of River Watch, a component of the United States Coast Guard Auxiliary that focuses on America’s riparian transportation and boating communities. 20. Exhibit 9 is a notice transmitted by River Watch on May 4, 2019 to all members of the Evansville and Ohio River Commercial groups, archive accounts at the Department of Commerce and River Watch, Coast Guard Auxiliary individuals and units in the Evansville area, and the automated system controlling River Watch signs on the Ohio River. 21. Exhibit 10 are the records from the Automatic Identification System receiver at Evansville, a computer that records information from passing commercial river traffic with Automatic Identification System transponders. Exhibit 10 was obtained by trained technical services personnel from the Coast Guard Investigative Service in a reliable manner. It was produced by the CGIS from its files to the prosecuting attorneys for the State of Indiana in response to a request for records from those attorneys. 22. Exhibit 11 was obtained from the Indiana General Assembly in response to a subpoena in this action. 23. Exhibit 12 is the document referred to in lines 80-85 of the statement of Noah/Noa Hitter. 24. Identical copies of Exhibit 13 were obtained from the files of White Star Investment Vehicle XII, LLC and Knob Hill Barge Co. in response to subpoenas on those entities. 25. Exhibit 14 is the Executive Summary portion of a thirty-page report of the autopsy conducted by Michael Fica, M.D. at the request of the Vanderburgh County Coroner, an office of the Vanderburgh County, Indiana government. Once identified by a witness, Exhibit 14 may be entered into evidence by either party without further foundation being laid. Objections to the admission of Exhibit 14 have been waived by both parties. 26. An expert witness does not have to be tendered as an expert before proceeding to give expert testimony.2
2 Changed from previous version via Errata #4
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WITNESSES
The following witnesses are available to be called by the parties. Prosecution witnesses may not testify or be called on behalf of the defendant. Defense witnesses may not testify or be called on behalf of the prosecution. Each side must call all three of their witnesses.
For the State of Indiana (Prosecution): • Noah/Noa Hitter (Marketing manager and fishing buddy of Jamie “Catfish” Hunter; eyewitness) • Dr. N.J. Neer (U.S. Coast Guard lead investigator) • Jordan Bennett (Owner of White Star Funds; eyewitness)
For Smith Dawson (Defense): • Smith Dawson (Captain of the M/V Susan K. Roberts; defendant) • Obie Goode (Mechanic and Reserve Captain on the M/V Susan K. Roberts; eyewitness) • Portino/Portina Storm (Defense expert witness)
EXHIBITS
Teams in competition may use the following exhibits
1. U.S. Coast Guard Vessel Safety Check (VSC) 2. Maps of Evansville area 3. Picture of the M/V Susan K. Roberts 4. Interview Report – Smith Dawson (2 pages) 5. Interview Report – Obie Goode (2 pages) 6. Interview Report – Jordan Bennett 7. Interview Report – Noah/Noa Hitter (2 pages) 8. U.S. Coast Guard Auxiliary River Watch website – Slow, No Wake: What it Really Means3 (2 pages) 9. Copy of the "Slow, No Wake” order issued 10. Report of vessels passing reporting point near Evansville, IN 11. Copy of testimony of Smith Dawson to Indiana General Assembly Commerce & Economic Development Committee 12. Printout of website showing boat purchased by Catfish Hunter 13. Investment Term Sheet between White Star Investments and Knob Hill Barge Company (2 pages) 14. Autopsy Report of Catfish Hunter (3 pages)
3 Editor Note: This exhibit has been modified from its original form for case purposes. For purposes of this case, it must be treated as authentic, but – although we have attempted to make it as authentic and accurate as possible – no competitor should rely upon it for any interpretation of boating safety rules and regulations.
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INDIANA CODE
Note: Indiana Code is provided to assist teams in devising their legal strategies. The prosecution must accurately prepare its case to meet the legal requirements of each of charge beyond a reasonable doubt. The defense should use the code to prepare its case to counter the charges. This is not an exhibit and cannot be cited or referred to in trial, other than noting how each side of the case has or has not met their burden.
IC 35-42-1 Reckless Homicide Sec. 5. A person who recklessly kills another human being commits reckless homicide, a Level 5 felony.
IC 14-15-4 Watercraft Accidents Sec. 1. The operator of a boat involved in an accident or a collision resulting in injury to or death of a person or damage to a boat or other property shall do the following: (1) Stop the boat immediately and as close as possible to the scene of the accident. (2) Return to the scene of the accident and remain there until the operator has complied with this section in its entirety. (3) Give: (A) the operator's name and address; (B) a full identification of the boat operated; and (C) the name and address of the owner; to the operator of each other boat and each person injured. (4) Upon request, exhibit the operator's license to the operator of each other boat and each person injured. (5) Provide reasonable assistance to each person injured, including carrying or arranging for carrying each injured person to a physician, surgeon, or hospital for medical or surgical treatment if: (A) it is apparent that treatment is necessary; or (B) the injured person so requests.
Sec. 2. (a) The operator of a boat involved in an accident or a collision resulting in: (1) injury to or death of a person; or (2) damage to a boat or other property to an apparent extent of at least seven hundred fifty dollars ($750); shall provide the information required under subsection (b). (b) An operator of a boat subject to subsection (a) shall do the following: (1) Give notice of the accident to: (A) the office of the sheriff of the county; (B) the nearest state police post; or (C) the central dispatch center for the law enforcement division of the department; immediately and by the quickest means of communication. (2) Mail to the department a written report of the accident or collision within twenty-four (24) hours of the accident or collision.
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Sec. 4. A person who knowingly or intentionally violates section 1, 2, or 3 of this chapter commits a Class C misdemeanor. However, the offense is: (1) a Class A misdemeanor if the accident or collision results in an injury to a person; (2) a Level 6 felony if: (A) the accident or collision results in serious bodily injury to a person; or (B) within the five (5) years preceding the commission of the offense, the person had a previous conviction of any of the offenses listed in IC 9-30-10-4(a), IC 35-46-9-6, or IC 14- 15-8-8 (before its repeal); or (3) a Level 5 felony if the accident or collision results in the death of a person.
Editor’s Note: Section 3 above was intentionally redacted.
IC 35-41-2-2 Criminal Liability Culpability Sec. 2. (a) A person engages in conduct "intentionally" if, when he engages in the conduct, it is his conscious objective to do so. (b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of a high probability that he is doing so. (c) A person engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.
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CHARGING DOCUMENT
STATE OF INDIANA ) VANDERBURGH COUNTY CIRCUIT COURT COUNTY OF VANDERBURGH ) ) CAUSE NUMBER: 82C01-0519-F5-000812
STATE OF INDIANA ) ) COUNT 1: v. ) RECKLESS HOMICIDE ) A LEVEL 5 FELONY SMITH DAWSON ) AGENCY: EPD; CASE NO. 19-411 ) ) I.C. 35-42-1-5 ) ) COUNT 2: ) LEAVING THE SCENE ) A LEVEL 5 FELONY ) AGENCY: EPD; CASE NO. 19-411 ) ) I.C. 14-15-4-4 )
Count 1 The undersigned, being duly sworn upon his oath, says that in Vanderburgh County, State of Indiana, on or about May 4, 20194, Smith Dawson did recklessly kill another human being, namely: Jamie “Catfish” Hunter, which is contrary to the form of the statutes in such cases made and provided by I.C. 35-42-1-5 and against the peace and dignity of the State of Indiana.
Count 2 The undersigned, being duly sworn upon his oath, says that in Vanderburgh County, State of Indiana, on or about May 4, 20195, Smith Dawson did operate a boat involved in an accident or a collision resulting in injury to or death of another person or damage to a boat or other property and did not stop the boat immediately and as close as possible to the scene of the accident, did not return to the scene and remain there until complying with Indiana law, did not give Dawson’s name and address, a full identification of the boat operated, and the name and address of the owner to the operator of each other boat and each person injured, contrary to the form of the statutes in such cases made and provided by I.C. 14-15-4-4 and against the peace and dignity of the State of Indiana.
/s/ Detective Steven David Detective Evansville Police Department Affiant
4 Changed from previous version via Errata #6 5 Changed from previous version via Errata #6
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Subscribed and sworn to before me this 11th day of July 2019.
My commission expires: August 24, 2023 /s/ Amy Dudas Amy Dudas Notary Public
Approved by me: /s/ Richard Young Richard Young Vanderburgh County Prosecuting Attorney
We hereby certify that the forgoing document complies with the requirements of Trial Rule 5(g) with regard to information excluded from public record under Administrative Rule 9(G).
/s/ Richard Young Richard Young Vanderburgh County Prosecuting Attorney
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Noah/Noa Hitter Fishing Buddy / Eyewitness
STATEMENT OF NOAH/NOA HITTER
1 My name is Noah/Noa Hitter, and I am the Marketing Manager for the Evansville River
2 Rats. The River Rats are a part of an independent co-ed baseball league in the region.
3 I do not like to brag, but I have always been a gifted athlete, particularly at baseball. In the
4 Midwest, baseball is not just a sport for boys and men; the best athletes all play baseball. Especially
5 around here, Little League teams are co-ed; so are the school teams, even at the collegiate level.
6 The Indiana basketball from Hoosiers is very popular, but where I grew up we were all crazy about
7 baseball.
8 I am twenty-seven years old. I was born in LaPorte, Indiana and grew up a few houses
9 down from Charles Finley’s ranch north of Pine Lake. My father worked on Mr. Finley’s ranch
10 from time to time. Mr. Finley owned the Oakland A’s in the 1970’s and would tell me story after
11 story about his teams, championships, and players. He passed away when I was in grade school,
12 but I still remember those stories like they were yesterday. I could sit and listen to him talk for
13 hours. Many people may not know it, but Mr. Finley had the ideas behind the designated hitter
14 and night games. Although my dad was an athlete too, I got my love of baseball from Mr. Finley.
15 After I graduated from LaPorte High School, I was fortunate to attend the University of
16 Evansville (UE) on a combination academic and baseball scholarship. I am also a part of UE’s
17 Changemaker program that engages students to make positive changes in their community and
18 awards scholarships for students with the best ideas. I put in a proposal to pair up police officers
19 with mental health counselors to work on opiate addiction, and I stayed with the program while I
20 got my undergraduate degree in Sports Marketing. My dad and Mr. Finley drilled into me that life
21 should not just be about athletics. Even before analytics and running a sports team by focusing on
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Noah/Noa Hitter Fishing Buddy / Eyewitness
22 stats and data, known as Money Ball, Mr. Finley knew the statistics and realities of pro sports
23 being a long shot for most athletes, which is particularly true of co-ed baseball.
24 Of course, though, I pitched my tail off as a knuckleball pitcher when I played. As a
25 knuckleballer, I did not need to throw hard, I needed to throw smart. Following graduation at UE
26 in May 2017, and remembering my father’s advice about life being more than athletics, I applied
27 for and was offered a social media marketing position by the River Rats. They like to get local
28 folks, because we have connections to the town and we understand what it means to be from
29 Southern Indiana. And it was perfect for me – I just love the world of baseball.
30 The team plays in a Great Lakes region, co-ed, independent league that requires both men
31 and women players, tracing its roots back to the 1940s and the All-American Girls Professional
32 Baseball League. Unfortunately, like that league, the teams in our league do not have a lot of
33 money for salaries. Instead of paying for an expensive apartment or a house, the team places
34 players and traveling staff with host families during the season to help save money. Those families
35 and boosters also donate food to eat in the clubhouse on game days. We may not be paid well,
36 but we sure are treated well by the community. It does not hurt that our games are at the classic
37 Bosse Field, the third-oldest active stadium in the country after Fenway and Wrigley. It is such a
38 cool, historic atmosphere. It is awesome to look around at the stadium on game day, knowing A
39 League of Their Own was filmed right here at Bosse Field in Evansville.
40 And I got a particularly sweet deal. Mr. Finley’s family made a few calls and placed me
41 with the Dawson family, who live on a farm outside of town. I lived in their modest farmhouse
42 right down the road from the house the Dawsons lease to Obie and Taylor Goode. Obie is a former
43 police officer who also took a job with the Dawson family business, the Knob Hill Barge Company.
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Noah/Noa Hitter Fishing Buddy / Eyewitness
44 It was kind of funny because both Smith Dawson and Obie Goode often talked to me about
45 life after baseball like my dad and Mr. Finley did. I dreamed of marketing for the big leagues
46 someday, but the reality is, if you are not out of the independent leagues after a year or two, the
47 chances of making it into the majors are slim. Smith thought I should use my education and
48 experience with the game to be the next Brian Cashman – the American baseball executive for the
49 New York Yankees. Obie, on the other hand, thought I would be a natural for the Evansville
50 Police Department.
51 Without fail, the Dawsons hosted Sunday dinners for their family and their business family.
52 When my schedule allowed me to attend, the discussion would inevitably turn onto me about how
53 the team was doing and then what I would be doing next. It was also a rare chance for Obie to
54 speak freely with Smith outside of work.
55 A day I will never forget is May 4, 2019. I went down to the World War II Landing Ship
56 Tank (LST-325) on the riverfront here in Evansville to film a promotional commercial for the
57 team. The LST-325 is a prized local landmark, and I was willing to bet the senior officers would
58 be there pulling overtime—I wanted to be able to feature them in the spot. And I was right! Before
59 we filmed the spot, I met up with a few of the players at Shepard’s Pasture, a local sports bar to
60 have a late lunch and a beer. Jamie “Catfish” Hunter, a pitcher on the team, had also invited me
61 to go jug fishing in his boat after we were done filming. Catfish and I were about the same age,
62 and we saw eye to eye on lots of things, if you know what I mean. And for all those that do not
63 know about jug fishing, it is fishing with lines suspended from floating jugs.
64 Catfish was always telling the rest of us that jug fishing is a cheap and easy way to get on
65 the water and try fishing without buying expensive fishing rods and equipment. Essentially, baited
66 hooks are tied onto strings suspended three to ten feet below the jugs. Jugs are connected together
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Noah/Noa Hitter Fishing Buddy / Eyewitness
67 in a line of about 10 or so and float down river with the current. It is about as low-tech style of
68 fishing as one can get. He said it was so easy even an old knuckleballer like me could figure it
69 out. I guess it works. It is not unheard of for someone to catch a fifty to sixty-pound catfish on a
70 jug.
71 It was early evening by the time we finished filming. The commercial co-sponsor bought
72 us all pizza after we wrapped, and during dinner Catfish reminded me about jug fishing, so I said
73 I’d bite. We drove to the Inland Marina where he kept his boat tied up, which was about 2 miles
74 south of the LST site right on the state line between Kentucky and Indiana. This is one of those
75 unique places where the state line no longer follows the river because the river has migrated over
76 time. So now, there is a small sliver of land on the north side of the river that is part of Kentucky,
77 not Indiana.
78 “Boat” might be a generous term. Picture a rowboat with a tiny little motor on the back
79 and just enough room to sit, fish, and drink. It didn’t have any electronic equipment on it; only
80 the necessary lights and a motor. Catfish had bought the boat used the year before with his year-
81 end bonus. I found the picture printed out from eBay when we cleaned out his locker. Apparently,
82 the previous owner called it the Sun6 Dolphin, which had to drive Catfish nuts! He always said he
83 was going to rename it the River Otter.
84 The marina where he always put the boat in on the Ohio River has several signs indicating
85 that each boater sails at his own risk and to be aware of all other recreational and shipping boats
86 in the water. Even though I think it also mentioned that recreational boating should not be done
87 after dark, we cast off about an hour before sundown, around 6:45 p.m., and went to check the jug
88 lines Catfish had put in the water earlier that day. Catfish particularly liked to put in jugs at or near
6 Changed from previous version via Errata #19
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Noah/Noa Hitter Fishing Buddy / Eyewitness
89 the border to the commercial channel near the river’s oxbow. Jug fishing seemed like a pretty
90 sweet deal because all anyone has to do is sit there, have a few cold drinks, let the jugs do the
91 work, and check on them from time to time. Catfish enjoyed several beers that afternoon at
92 Shepard’s Pasture, but he wasn’t finished. He handed me one as we got on the boat and took
93 another one for himself. I only had the one beer before switching to water, but Catfish went
94 through more than a couple more. He probably drank two to four beers between when we left and
95 when the sun set.
96 Catfish was particularly excited about getting on the river because it was the first clear day
97 in several weeks. Apparently, a lot of people felt the same because the boaters were out! I cannot
98 remember how long it has been since I have seen so many boats on the river. The month of April
99 had been wrecked by rain outs and rain delays, so I guess I should not have been surprised. When
100 we got on the water, the water level was high, and a lot of logs and debris were floating in the
101 river. We rode by Evansville’s river-front and Dress Plaza several times while we were pulling
102 out jugs to check for fish. Catfish pointed out the giant ruler painted on the pump house, which
103 measured the water level. It ended at 54 feet, which was the water level of the Great Flood of
104 1937. We were a good distance from the ruler, but it looked like the water level was at least 44
105 feet on the ruler. Usually the river was at 34 feet that time of year. I asked Catfish how often the
106 river got that high. He said he was not sure, but he had not ever seen it that high before.
107 We were out there a while enjoying the end of a long day and relaxing. As we were
108 checking about ten or fifteen jug lines, I was asking Catfish all kinds of questions about boating
109 and stuff on the river. Although I had been on the river with Catfish many times before, I was still
110 learning and it seemed like I learned something new every time we went out. I noticed red and
111 green lights and buoys dotted along the river and asked Catfish what they were. Catfish said those
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Noah/Noa Hitter Fishing Buddy / Eyewitness
112 were to show big boats where the water was the deepest and they did not matter for little guys like
113 us. Speaking of big boats, it seemed like the boat traffic, particularly the barges, were kind of
114 going in slow motion. Most of the barges were floating slowly down the river alongside the logs
115 carrying large shipments of various materials up or down the river.
116 Oh, the logs…. The logs were a real problem for us. Several of Catfish’s jug lines got
117 caught up in the logs, and once or twice a log would run into the boat with a big ‘ole BANG, rock
118 the boat side to side, and scare the daylights out of me. And after the sun set and it got dark, it was
119 even harder to deal with the logs around the jugs. If it was up to me, we would have gone back to
120 shore. I will take a TV and a cold one over boating in the dark any time. But the jugs had drifted,
121 and Catfish insisted we check them all. We had to go a little further out into the river past one of
122 those red buoys to free one of the jugs from a gnarly group of sticks. We were headed back when
123 I saw a towboat pushing barges just upriver from us. This towboat was not floating lazily like the
124 others, though; it was moving with some real speed. I remember the towboat had some mountain
125 thing as its logo.
126 Although it was now dark out, there were a few other fishing boats and pleasure boats
127 around. One of them was speeding around the river’s oxbow like it owned the place. It also was
128 not well lit with only one small light at the front of the boat—it made it very hard to see as it sped
129 all around the area. The motor could be heard, though. It was so loud, I thought I was back at the
130 motor speedway watching the Indy 500.
131 I started to get genuinely nervous as both that speed boat and the towboat and its barges
132 were getting seriously close to each other and to us. They kept getting closer and closer to us and
133 neither seemed to notice us, change course, or slow down. Our boat, while small, had some lights
134 on it, but they were not big or bright. They should have also seen the fishing jugs because they
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Noah/Noa Hitter Fishing Buddy / Eyewitness
135 were marked with reflective tape. We could not have been invisible, but no one seemed to be
136 paying attention to us.
137 The towboat and its barges looked massive and came in so quickly. The eeriness cannot
138 be explained. It was an indescribably helpless feeling as I saw those gigantic barges heading
139 towards our small fishing boat. Even though the towboat was a big vessel, it did not seem
140 concerned about staying between the buoys like Catfish said the bigger boats were supposed to do.
141 In fact, it looked like it was going to go right through us and run right up the shore. I was keeping
142 a constant eye on the buoys, and I was certain we were on the other side and was surprised to see
143 the barges were on the same side as us.
144 As the towboat and barges got closer, I could see lights up in the wheelhouse of the towboat
145 and maybe a person up there—with barges the towboat is a distance away. I noticed one person
146 walking around in the wheelhouse and looking in our direction, but no one seemed to notice us. I
147 looked over and saw Catfish was still messing with some of the jugs. I am sure he thought he had
148 a huge fish on the line based on the way one of the jugs was bouncing in the water. When the
149 barges kept coming, I first told and then shouted to Catfish to start the motor and get us out of the
150 way. He fumbled around and sure tried, but could not get the motor started. Unfortunately, neither
151 one of us was wearing a life jacket. I threw a life jacket to Catfish and grabbed one quickly for
152 myself. I quickly put my life jacket on, but Catfish was still fighting to get the motor started and
153 never put his life jacket on. Somehow the barges missed us, but it still looked like the towboat
154 was going to slide right into us.
155 Then suddenly, that speedboat came from behind the towboat and it was now coming at us
156 too! We froze. We were staring at both boats barreling toward our small little boat. As the
157 speedboat approached, it must have seen us or our little bow light, because it suddenly made a
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Noah/Noa Hitter Fishing Buddy / Eyewitness
158 quick turn away from us and back towards the middle of the river, speeding quickly between us
159 and the towboat’s barges and then down river. The wake from the speedboat crashed into us. We
160 were so off balance that our boat was rocking unsteadily. I did not know if the boat could handle
161 the crashing waves and whether I would be thrown overboard. In one short second while trying
162 to steady myself, I looked up and saw the barges now passing by only a few feet from us. Our
163 little boat was tossing like a cork and something hit us and caused the boat to disintegrate. The
164 whole world was flipping, until it went pitch black as I hit the water. I last remember being close
165 to Dress Plaza where I had watched boats before and the growing loud rumble of the towboat’s
166 engines.
167 The life jacket tried to pull the other way as I plunged into the water, but I locked my arms
168 tight. I could feel debris around me as I struggled to get to the surface. I kicked hard and finally
169 popped my head out of the water and gasped for air. I could see the towboat continuing down the
170 river as if nothing happened. There were people shouting up on deck, but I could not understand
171 what they were saying over the engine noise and the water in my ears. I had no idea where Catfish
172 went. I slapped the straps on the life jacket into place, grabbed a floating seat cushion that was
173 close by, and rested. I guess I lost consciousness because the next thing I know, I am laying on
174 my back on the boat ramp staring up at two Emergency Medical Technicians (EMTs) with a
175 pounding headache and so sore I could hardly move. They took me to the Deaconess Midtown ER
176 but sent me home after the x-rays showed no broken bones. While I was waiting on the x-ray
177 results, Detective Steven David with the Evansville Police Department asked me some questions
178 about what happened. No one would tell me what happened to Catfish that night. I figured Catfish
179 was rescued and getting x-rays too. The next day I was heartbroken to hear Catfish did not make
180 it.
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Noah/Noa Hitter Fishing Buddy / Eyewitness
181 Of course looking back, the craziest thing was that I was still living with Smith, although
182 I did not put two and two together for a while. Our friend Obie took Catfish’s death hard, too, and
183 started drinking a lot more. I think the collision brought up some rough old memories from other
184 cases. One night, later that summer, I found Obie sitting in front of the St. Louis Cardinals’ game
185 on TV, just weeping. I asked if everything was alright, and Obie looked up at me and said, with
186 these haunted eyes, “I knew it was on the starboard side. I knew it. I did not understand why
187 Smith did not stop when the jugs were visible. I had the rescue boat ready….” I did not know
188 what Obie was talking about until I saw the charges in this case. I couldn’t believe Obie said that
189 because it’s the kind of that could get Obie fired. I moved out the very next day.
190 The whole town was shaken up by Catfish’s death. Catfish was the last guy to leave the
191 field after the game and seemed to have a knack for spotting the kid in the stands who needed an
192 “attaboy” from a professional athlete. We had a memorial at Bosse Field a few weeks after the
193 accident and the stands were more packed than I had ever seen them. For the rest of the season,
194 the team wore a patch with a silhouette of a catfish on its jersey sleeves to remember Catfish. Life
195 will go on, but we will never forget Catfish.
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
STATEMENT OF DR. N.J. NEER
1 My name is N.J. Neer and I am fifty years old. I am a native of French Lick, Indiana (like
2 Larry Bird) but left when I enrolled in the United States Coast Guard Academy. After graduating
3 with a B.S. in Mechanical Engineering, I received a commission into the U.S. Coast Guard’s
4 Investigative Service (CGIS), where I served out my five-year commitment as an Ensign and a
5 Lieutenant, Junior Grade. I left active duty in 2000 and sought a master’s degree in Industrial
6 Management Engineering from the University of Southern Indiana. At the conclusion of the
7 program, I took a position as a civilian CGIS investigator and I continued as a Coast Guard
8 reservist. While in the Reserves, I earned my doctoral degree from Purdue University, specializing
9 in Safety Engineering in the School of Industrial Engineering. I was honorably discharged as a
10 Lieutenant Commander in 2015.
11 Although I am no longer in uniform, I still serve in the CGIS River Watch, focusing on the
12 American riparian waterways. After serving as a Special Agent for a decade, I served a few years
13 as Assistant Special Agent in Charge and then a year as Special Agent in Charge before being
14 made Director of the Louisville, Kentucky regional office of CGIS River Watch in March 2017.
15 In that capacity, I oversee all functions of the office, including the law enforcement functions as
16 well as the administrative and inspection teams. Although I remain fully qualified to perform field
17 investigations, I do fewer of them these days. In 2015, a matter I investigated became the subject
18 of considerable public controversy after I lost critical evidence, which allowed the defendant to
19 claim I had misstated his testimony in a report. (I had not, but without the evidence to prove that
20 fact, all I had was my word.) After an internal investigation, and after the criminal case was
21 dismissed by the United States Attorney’s Office for lack of evidence, I was suspended one week,
22 with pay. Since that time, on the advice of a mentor, I focused less on field work and more on
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
23 administration. I found the change quite to my taste, and I am now effectively the police chief,
24 safety officer, and budget manager for the Midwestern District, which is made up of Indiana,
25 Kentucky, Ohio, Illinois, and Tennessee. I am also a proud member of the Coast Guard Auxiliary,
26 which allows me to get some boat time now and again.
27 The CGIS River Watch is a federal law enforcement agency tasked with investigating
28 criminal activity along the U.S.’s rivers, coastlines, and inland waterways. The Ohio River is the
29 major artery in our region and we focus much of our time, resources, and staff on monitoring the
30 river and making sure people on and around the river are safe.
31 River Watch has been heavily involved in the Evansville area, particularly since 9/11.
32 After that tragedy, the federal government ramped up criminal enforcement on inland waterways.
33 Evansville is an interesting part of the river because of the levee system. After the Great Flood of
34 1937, the federal government built a levee system with pumping stations and closeable gates to
35 protect the system. The flood protection system pumps overflow and rainwater into the river
36 during high river conditions. There are approximately 17 miles of earth embankments and
37 concrete floodwalls along the river to protect against a similar disaster. The locks and dams along
38 the Ohio River, like the one in Newburgh, also help with flooding as they can limit or allow water
39 to flow down river. Levee systems, locks, and dams can be targets for terrorist activity.
40 Thankfully, we now have additional technology and better communication systems to help
41 with policing the river and our investigations. We monitor the river levels closely and stay in
42 communication with the barge companies who regularly use the Ohio River. It might seem a little
43 strange, but the river is simply a roadway or a highway on water. It is a bit more complicated and
44 arguably more dangerous than a typical road, though, because one must deal with different
45 variables, such as currents, tides, and sandbars. Those sure are not seen on the interstate. Areas
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
46 upstream and downstream from the navigation dams like the one near Evansville are generally
47 designated restricted areas. Those areas can be expanded by the River Watch based on various
48 factors including the river level, traffic, currents, and conditions on the river.
49 Because our department is so intertwined with many other agencies, and because over the
50 years the local community has come to trust my judgment, CGIS River Watch assists in providing
51 various warnings when the water conditions are unusual or dangerous. We also provide warnings
52 when there is an increase in the flow from a dam or release of water within the lock discharge
53 areas. Specifically, we use sirens to warn those who are physically near the locks or dams. We
54 also use an electronic system to send out text messages and emails to those who are registered or
55 signed up in our system. All captains with commercial licenses are required to register with our
56 system so they receive both text messages and emails. Those communications also go out to all
57 local law enforcement agencies whose jurisdictions border the river. It is a particularly important
58 system because there have been several boating accidents and fatalities as a result of vessels
59 operating carelessly on rivers with locks and dams. And when the river level is high, the risks
60 significantly increase.
61 On the morning of May 4, 2019, I received several messages from our systems indicating
62 we were approaching dangerous flood levels in the Evansville area. That and the fact it was a
63 particularly busy day on the water with more pleasure boats than normal made it even more
64 dangerous. It seems sometimes that pleasure boaters care more about the weather and getting tans
65 than being safe on the water. I monitored the situation for a few hours, and around 1500 hours, I
66 directed my staff to place “Slow, No Wake” signs on the channel markers right before entering
67 downtown Evansville and the riverfront. Wakes are the waves created by boats moving on the
68 water. The faster a boat travels, the larger the wake it creates. Wakes are dangerous because they
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
69 can flood or overturn small boats. Specifically, one no-wake sign was placed at Mile Marker 786,
70 near Angel Mounds and extended through the Evansville downtown riverfront area and past Mt.
71 Vernon to Mile Marker 829.5. We also placed markers starting at the Newburgh Dam area, just to
72 be sure.
73 No-wake zones are used infrequently and only when absolutely necessary. By design, they
74 dramatically slow down river traffic. I know the captains and barge companies hate no-wake zones
75 because it slows them down and can impact their delivery schedules and contracts. Without fail,
76 whenever the signs go up, I get a call from a cranky captain who has a deadline or an emergency
77 and wants a waiver. That day, however, I made the call for the no-wake zone because the water
78 was unusually high and the Evansville bend also known as an oxbow is one of the sharpest and
79 most dangerous turns along the Ohio River.
80 At 1538 hours, I triggered our communication system to send a message to the commercial
81 captains notifying them that barge traffic on high water restrictions were immediately put in place
82 for the Evansville and Mt. Vernon areas. High water restrictions require traveling at slow speeds
83 to avoid causing any wakes from the boat or barges. I provided copies of the notice and the “Slow,
84 No Wake” guidance from the River Watch to the prosecutor. River Watch serves as a liaison to
85 the community, and I was involved in writing that particular guidance. I could talk about it all
86 here, but I would be repeating myself.
87 Even when the river is straight, a boat’s wake can be a real problem when the river is high
88 because of all the debris that gets picked up from the banks. The further down river a boater is,
89 the more debris there is. Logs or branches may not matter as much for barges or larger boats, but
90 they can be a real problem for small pleasure or fishing boats. A wake can effectively turn a log
91 into a projectile that can puncture or capsize smaller vessels. It is best if pleasure or fishing boats
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
92 stay out the river during periods of high water. And, it is essential that larger vessels moderate
93 their speeds. The problem is that pleasure or fishing boaters think that because they are smaller
94 and faster vessels, they can go anywhere and do whatever.
95 Almost immediately after the texts and emails were sent out, I received a call on my cell
96 phone from Smith, which I found strange. I have known and dealt with Smith, the Dawson family,
97 and their family business – Knob Hill Barge Company (KHBC) – for years, but Smith usually does
98 not call me on my cell phone. Instead, Smith usually goes through my assistant to reach me. That
99 day Smith seemed particularly agitated about the restrictions. I know Smith was upset about the
100 no wake zone because Smith said, “Neer, I don’t have to have a waiver, but it would really help.
101 I have an important shipment today.” Smith wanted me to reduce the restrictions, or even give an
102 exemption waiver. I told Smith that I could not make an exception and to abide by the no-wake
103 zone like all the other boats. Smith indicated understanding, and I thought that was the end of it.
104 Throughout my years with the Coast Guard, I have had many interactions with KHBC and
105 found all their employees easy to work with. I have even been invited to their famous Sunday
106 dinners, but declined for obvious reasons. Their paperwork always seems to be in order, which
107 cannot be said for other barge and marine transportation companies that I deal with. And we deal
108 with a lot of companies. Over 230 million tons of cargo go up and down the Ohio River each year.
109 Later that night, around 2145 hours, I received a text from the Evansville Police
110 Department. I have an understanding with our local law enforcement that they will let me know
111 if there is any accident of note on the river. That night, the duty detective was Steven David, who
112 told me there was a barge accident and that I may want to head over to investigate since there was
113 a fatality. While I work at the Louisville District, I actually live on the river in Derby, Indiana. I
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
114 packed a bag and headed on my way. After a one7- and half-hour drive, I was able to make it to
115 the scene in Evansville around 2315 hours. I spent about a half an hour on scene to see what
116 happened and then rerouted to Mt. Vernon, Indiana, where Smith and the Motor Vessel (M/V)
117 Susan K. Roberts (“Roberts”) were located. I was met there by one of our CGIS special agents,
118 Special Agent Melissa May, in case this became a federal law enforcement investigation.
119 I spoke with Smith at the Mt. Vernon Police Department (MVPD) after the MVPD hailed
120 them over for questioning. I arrived there around 0100 hours on May 5. Smith seemed pretty
121 shaken up when I asked about the incident and had indicated not having any idea that another boat
122 had been hit by them. In fact, Smith didn’t seem to recall an impact. Of course, that was before
123 Smith talked with Obie Goode or with that Bennett person. After speaking with them, Smith
124 recalled an impact but indicated not seeing any traffic in their path and thinking they’d just hit a
125 log or similar debris. My interview with Smith lasted about an hour and a half.
126 We also went over the company’s paperwork and logs. I found it odd that Smith did not
127 have the USCG River Watch Vessel Safety Check form completed. While it is not required by the
128 U.S. Coast Guard for every trip, I have never known a KHBC captain not to have completed that
129 form. It was also odd that Smith never mentioned calling me earlier and asking for an exemption
130 waiver to the no-wake zone. It was as if Smith hoped that I had forgotten about the call. Then
131 Special Agent May and I spoke with Smith’s first mate, Obie Goode. We didn’t get much out of
132 Obie, who was pretty quiet and didn’t seem to recall much.
133 When we ended the interview, we found a hotel to crash for the night and completed our
134 investigation the following morning. Special Agent May and I wrote the interviews up the next
135 week. Best practice is to write up the interviews the day after, but we both got busy with other
7 Changed from previous version via Errata #5
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
136 things, which happens sometimes. Anyway, as far as I could tell, Special Agent May got the
137 sections she wrote all correct, so I signed off and made her reports a part of my official
138 investigation.
139 On May 5, 2019, I reviewed the data from the Roberts’s electronic charting system and
140 pulled the logs from River Watch’s automated vessel reporting point in Evansville. According to
141 the charting system, everything was in working order, as far as I could tell. With that said, the
142 Roberts was slightly off from the charted, scheduled path and closer to the Evansville shore than I
143 would have liked. I suspect the current carried it further than expected. Still, it should not have
144 been enough to make a dramatic difference for the Roberts; that part of the channel is plenty deep
145 enough. The biggest concern was actually for other pleasure boaters and fishermen that typically
146 try to stay closer to the shore.
147 Now, if everyone is being safe, that is not a problem. For a few hundred bucks, small
148 personal watercraft can have an Automatic Identification System (AIS) transponder. An AIS
149 updates all ships in the area of the craft’s position 4500 times per minute. I personally think they
150 should be required for all craft. But my agency disagrees with me. Sadly, the decedent’s boat did
151 not have an AIS and did not show up on Smith’s display. Lacking an AIS is not uncommon and is
152 one of the biggest problems with pleasure boaters – they do not have the safety equipment to
153 protect them or the commercial vehicles around them. And most pleasure boaters certainly are not
154 trained in navigation or accident avoidance. Adding alcohol to the mix is the recipe for disaster.
155 It is not a question of whether there will be a tragedy, but when, even if everyone is taking real
156 care.
157 I performed an inspection of the Roberts that afternoon. Let me be clear: there was nothing
158 wrong with the ship. According to my tests, the exhaust gas temperatures, oil pressures, and fuel
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
159 pressures measured normal for 16-cylinder diesel engines and everything checked out fine. The
160 autopilot was appropriately calibrated, and the electronics were functioning.
161 There were a few concerns, though. First, although the lighting met code for running at
162 night, I recommend having foremast (front of ship where it comes in contact with the water) and
163 aft (towards rear) spotlights to sweep the water. The Roberts did not have those roving spotlights
164 in the foremast or aft. Having the front and rear lights is especially key if there is a lot of pleasure
165 boat traffic, which can be tough to see at or after dusk. Second, the autopilot was placed in
166 “Normal” mode, and the conditions were anything but normal. High water affects the way the
167 current moves boats, especially towboats with barges attached. Most autopilots will adjust over
168 time, but having it set to “Normal” – as Smith Dawson did – could lead to the Roberts getting far
169 out of ideal position and could have put the boat in a position where Smith needed to take a more
170 extreme angle or, worse, needed to fight the current to get back on track. This means the Roberts
171 likely accelerated at a higher speed, which would have generated a wake and given everyone less
172 time to adjust if circumstances became a problem. And while it is true Smith did need to accelerate
173 to keep control, remember the Roberts was already going faster than expected given the “Slow –
174 No wake” cautions, so it went even faster to maintain control. Had Smith been traveling slower
175 to begin with, the impact of the acceleration would have been less.
176 My investigation of the engine room of the. Roberts did not raise any red flags, although I
177 noted that KHBC had not yet updated the Roberts from diesel engines driving propellers to the
178 newest technology. What they had was acceptable, but not new, fancy, best, or greatest.
179 Finally, I noticed on the starboard, or right, side of the Roberts there was paint rubbed off
180 from a watercraft. I wish I could have called the CSI lab where some quirky but overqualified tech
181 could tell me it was the same paint as the decedent’s boat, which had only been made in one factory
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
182 in 1992 or something. Sadly, this is not TV, and marine paint is incredibly common and
183 remarkably generic. Although the paint matched the paint on the decedent’s boat, we were not
184 able to match it with any certainty to the decedent’s boat, some other craft, or even scraping a pier.
185 Now, boats don’t often scrape against hard objects that are likely to be painted with this paint—
186 docks and piers have rubber bumpers. So it is more likely that the Roberts hit another boat to
187 cause that damage. It was a pretty hard scrape, so whatever it was, whenever it was, someone
188 would have noticed and it is something any reasonable captain would have stopped to investigate,
189 in my expert opinion. And there is no mention of it in any of KHBC’s other records.
190 Once I took all these factors and information into consideration, including reviewing all
191 statements and exhibits8, I determined that there were no administrative code violations pertinent
192 to CGIS. Even so, I felt that Smith was operating the Roberts recklessly by using the autopilot on
193 “Normal,” and then accelerating to an unsafe rate of speed. Whether the Roberts actually struck
194 the decedent’s boat or its wake flipped over the decedent’s boat does not matter. Either way, when
195 the fishing boat capsized causing the death in this case, it did because of how Smith operated the
196 Roberts that night.
197 Once we got the coroner’s report and I concluded that the crash had been the cause of
198 death, I turned the matter over to the local prosecutor’s office. I am glad they were taking river
199 safety seriously and pursuing prosecution of this matter. As much as it pains me to say about a
200 captain I respect, it is my opinion as an expert in the field of nautical safety that Captain Smith
201 Dawson caused a substantial and unjustifiable risk to Jamie Hunter and was a contributing cause
202 to Jamie’s death. The river is a harsh mistress, especially when the water is high, and if someone
203 is going to ride it, then they should be vigilant at all times – all of which is the burden accepted
8 Changed from previous version via Errata #16.
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Dr. N.J. Neer U.S. Coast Guard Lead Investigator
204 with a captaincy. I hope the judge will be more forgiving at sentencing than the river was, but at
205 the helm, there is only one rule: Semper Paratus, which means always ready.
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Jordan Bennett White Star Owner / Eyewitness
STATEMENT OF JORDAN BENNETT
1 My name is Jordan Bennett and I am 41 years old. I find hidden value in businesses. I am
2 a Wall Street fanatic and I have no time for people that do not appreciate my talent. My specialty
3 is finding and controlling undervalued private and public companies. I firmly believe that the
4 American economy has combined with the international economy in a way that has allowed for
5 significant profit making with minimal risk. Let me simply say, Wall Street made America. Henry
6 Ford, Andrew Carnegie, William Boeing – they would be nothing without Wall Street's money.
7 As a wise man once said, greed is good. But enough about that.
8 I am from Howard Beach, Queens, in New York City, right under the approach path to JFK
9 Airport. My dad worked as a mechanic, and my mom kept books. We did not have much money
10 growing up, but that was good – it made me hungry to succeed in business. I went to Cooper
11 Union High School, graduated from City College in 2000 on a Regent’s Scholarship, and was able
12 to get and keep work through the 2000s, even through the Great Recession. I started as a clerk on
13 the floor of the New York Stock Exchange, worked my way up to floor trader, and then made the
14 jump to investment banking at a small firm. No one handed me anything in this business. I had
15 to work harder than everyone else to get where I am today.
16 Several years ago, I started White Star Funds with a friend of mine, Ron Christian. We are
17 what you might call a hedge fund. A hedge fund means we take money from a small group of
18 investors and invest their money into businesses that offer the potential for high returns, but also
19 carry higher risk than the average mom and pop investor would want to bear. Look, we are two
20 outer borough hustlers, which has been the key to our success and how I found the Knob Hill Barge
21 Company (KHBC).
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Jordan Bennett White Star Owner / Eyewitness
22 It is a funny story, actually. In the first quarter of 2019, we made enough scratch from
23 shorting companies and investing in bitcoin to afford a piece of a private jet. We do not own it
24 completely, yet, but we get to use it for a certain number of hours each year. We stopped in
25 Evansville to address an issue with the plane’s brakes. I guess, like me, it does not like stopping.
26 I got a little antsy waiting on the repairs, so I grabbed an Uber. The clerk at the repair center
27 suggested I check out the downtown area.
28 My driver took me by an old baseball stadium. I grew up on the old Yankee Stadium, so
29 seeing it was a treat. I also stopped for a slice of pizza at this local joint, Turoni’s, which was
30 supposed to be the best in town. Now, don’t get me wrong. It is good pie. But, it is not like a
31 New York slice from the street cart. I walked downtown to the river, and the first thing I noticed
32 was the barge traffic. It looked like a water highway out there, and most of the boats had KHBC
33 blazoned on the side. I asked around and learned that it stood for Knob Hill Barge Company. And
34 it looked like all of the towboats were pushing barges filled with different kinds of cargo. The
35 diversity of what they were carrying interested me. The cargo ranged from containers, gravel,
36 sand to cars.
37 My interest was piqued because shipping is a troubled sector right now. “Troubled” sounds
38 like a bad thing, but to a hedge fund, it means a lot of upside and potential profit. The world
39 economy concerns and costs are pushing valuations down. And that is exactly when we like to
40 come in. Usually, if you are careful, it works out; that’s how I can afford my share of that G4! I
41 mean, not always, right. Like that misunderstanding with the SEC and that other company…
42 Meeker Park or Merker Park or whatever. Yeah, we swooped in on it when it was distressed, and
43 yeah, maybe we used some information we got from an executive there to know we should. But
44 the guy was the CFO; how was I supposed to know that acting on what he told me was “insider
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Jordan Bennett White Star Owner / Eyewitness
45 trading?” Look, I’ll admit I should have been more, um, how should I put this… I should have
46 been more “forthright” with the investigators when they asked me about it, and I should have
47 provided the documents more completely. But that’s why I paid that fine! It’s not right that people
48 keep bringing it up.
49 Mesker Park! That was the name. It was the same name as the Mesker Park Zoo in
50 Evansville. I remember it because some person chatted me up at the airport about the zoo’s
51 Monkey Ship named Caryn’s Enterprise that had a troop of monkeys that greeted visitors. How
52 bizarre!
53 I do not think the wheels were up on our plane before my team and I started digging in and
54 researching into KHBC. We learned that KHBC was a real player in this space. And, we identified
55 Smith Dawson as the owner. So, I reached out to Smith who always jokes that I made an offer
56 that could not be refused.
57 Look, my investors might be willing to take some risks to make more money, but we are
58 not crazy. So after a little back-and-forth, Smith and I reached an agreement that we outlined in a
59 final term sheet. The term sheet outlined the important points and terms of the deal so that
60 everyone was on the same page and knew what they are getting into. In this case, it wasn’t too
61 long, just two pages that we both signed. According to the term sheet, the deal was set to close in
62 September of 2019.
63 That term sheet allowed White Star Funds to pump more capital into the KHBC in
64 exchange for a minority ownership stake allowing for the possibility of buying more of the
65 business or purchasing the company outright. As part of the deal, Smith and the company agreed
66 to make several changes to how the business was run, including reducing the number of crew on
67 each boat, increasing employee contributions to the health insurance plan, and shorter turnaround
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Jordan Bennett White Star Owner / Eyewitness
68 time between trips. It was a play I stole from Herb Kelleher of Southwest Airlines. As an insurance
69 policy of sorts, if the business did not make at least a certain percentage of profit compared with
70 prior years, there would be sweeping changes in management. The towboats and barges alone
71 were worth more than my investment, and I had a guy in Brazil lined up to buy a bunch of them
72 as soon as I could break the company apart. So if Smith could keep this “It’s a Wonderful Life”
73 family business thing making money, great. If not, we cut it into pieces, and we come out ahead
74 anyway. Nothing personal. Just business.
75 I wanted to get a feel for the business and the operation myself, so I paired a stop in
76 Evansville with one of my other trips. I did not give Smith much lead time because I wanted to
77 see how things were running regularly, not “prettied” up for a special guest. I gave Smith about 12
78 hours of warning before I flew in on May 3, 2019. Smith picked me up from the airport. After
79 driving around the city, I asked if we could stop by KHBC headquarters because I was antsy to
80 tear into the books. Numbers excite me. I had been into the books for a couple of hours when
81 Smith insisted we go to this place I think was called the Petroleum Club or something like that.
82 The food was really good, but more importantly, it had a sports book in the lounge area and we
83 had a few drinks watching the sports. We were there for a fair amount of time. I remember Smith
84 regaling me with stories how Smith’s grandparents ran the company from one of the conference
85 rooms in the club back in the 40’s and 50’s. It was then that I began to realize it may be harder to
86 get full control of this company than I originally thought. I kept trying to pull Smith back into
87 reality and this century by suggesting new ways to modernize the business.
88 Smith walked me over to my hotel around 11:00 p.m., promising me that I would have
89 several more hours the next day to go over the records and the books. Smith picked me up bright
90 and early Saturday morning, and we were in Smith’s office before 8:00 a.m. Smith arranged for
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Jordan Bennett White Star Owner / Eyewitness
91 me to have my own conference room, which actually overlooked the river. The view was okay.
92 From the last time I was there in the first quarter, the river looked much higher than I remembered.
93 But I was more interested in the number of boats going up and down the river and whether they
94 had the KHBC logo on them. And a lot of them, if not most, did.
95 Well, I guess I did not have to worry about anyone making things look nice for little old
96 me, because those books were NOT pretty! Everything was still done in hand, and the
97 administrators were not very professional. I wanted to know where they were on the aggregate
98 number of late-delivery penalties, and they had no idea! I started a hand tally, and they had been
99 late nine times on Ohio River deliveries in the last 78 days. Their contracts had penalties if they
100 were late ten or more times in a 90-day period, and it applied retroactively to all contracts on which
101 they had been late. They stood to lose high five figures, low six figures if they were late even
102 twice more in the next two weeks… and they did not even know it!
103 When I asked Smith about it, Smith kind of sheepishly mumbled something about there
104 being a flu bug going around that spring and knew they had been later than usual. Unbelievable!
105 I have seen security called to escort CEOs out for less than that. Smith should have been on fire,
106 lighting into the staff about a clear performance issue, but to me, it looked like Smith wanted to be
107 out on the river, driving a towboat. I mentioned my concern to Obie Goode, who did not say
108 anything; instead, Obie looked down the hall toward Smith’s office and nodded in Smith’s
109 direction. Obie seemed to get it and would make a great CEO one day. Our fund had a lot of
110 businesses, and I always kept my eye out for good leaders.
111 Since no one else was apparently willing to manage the joint, I wanted to remind Smith in
112 my usual, not-so-subtle way that I was in this case, literally, looking over Smith’s shoulder. I
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Jordan Bennett White Star Owner / Eyewitness
113 needed to see how this operation worked in action, so I could make more recommendations for
114 changes to get things on track.
115 The crazy thing is Smith spent all the time talking about how this was a family business,
116 but we had an agreement allowing for White Star to install an independent board if profits fell or
117 performance suffered. I did not have time for Sunday dinners or any of that, I only had time for
118 profit. I thought Smith would pay more attention to something that would lose Granddad’s
119 business. I was beginning to wonder if Smith even read the signed contract.
120 When Smith and Obie checked in on me around 3:00 p.m., Smith suggested we go back to
121 the Petroleum Club for a bite, which worked for me because I could get my bets in for the Kentucky
122 Derby. Call me old-fashioned, but I grew up at the track, and I love the ponies. We grabbed a
123 table, and I insisted on buying the first round of drinks. It was during my second or third round of
124 drinks, around 3:30 p.m., when Smith got a text message. Smith absently and angrily muttered
125 “Neer” under Smith’s breath and stepped away from the table to make a call. I did not know what
126 Smith was talking about.
127 Smith came back 10 or 15 minutes later looking especially grumpy, informing us about
128 one of the captains calling in sick and Smith had to leave to fill in. When I directly asked whether
129 the contract for the shipment was time-sensitive, Smith quickly changed subjects and asked
130 whether I wanted to go. I said yes, especially since it seemed like Smith wanted me to say no.
131 Smith and I left the club shortly thereafter, and we were at the boat in Newburgh about an hour or
132 so later. The boat and its cargo were waiting for us near the dam.
133 When watching from the shore, it’s not clear how darn big those barges are. Sitting in the
134 place with the steering wheel thing, they stretch out like crazy. We have endzone season tickets
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Jordan Bennett White Star Owner / Eyewitness
135 for the Jets – talk about a distressed asset. And, it was easily three times that length to the end of
136 the barges. The amount of juice needed to push those things around is incredible.
137 This was my first time on a river boat, but I was not a stranger to boats. The prior summer,
138 one of my investors invited me and Ron out on his 75-foot yacht to sail with him from Gardner's
139 Bay on Long Island to Nantucket. I expected to be on a KHBC boat at some point, so I brought
140 what I saw all those guys wearing: boat shoes, Nantucket red pants and a shirt from Vineyard
141 Vines – the whole nine yards. I guess working boats dress differently!
142 When we arrived around 5:00 p.m., it was a super-clear day and the temperature was
143 moderate. I waited on the dock while Smith went upriver above the dam and took control. Obie
144 joined me at the dock before we boarded. Obie had just spoken with Smith and mentioned that
145 Smith seemed more uptight and nervous than Smith had been in years. Once on the boat, Obie
146 went below deck. I could tell Smith was nervous after I brought up the contracts again. I did not
147 want Smith to hit anything, so I backed off and tried to lighten things up a bit. I tried to make it
148 friendly by telling Smith stories from my recent experience on this new online dating app we
149 invested in. It did not seem to work, and I could see Smith sweating profusely the whole time.
150 I am no expert when it comes to rivers, but even I noticed the river seemed higher than
151 when I first saw it in Evansville. There was also more debris floating around than I remembered.
152 Smith was supposedly experienced at this boating stuff, so I did not say anything to Smith, even
153 when Smith left the wheelhouse with no one in it sometimes. I guess that’s what the autopilot is
154 for…?
155 Man, those boats are slow. I mean, I did see a few makeshift no-wake signs along the river.
156 But they did not look like permanent or official signs, so who knows if anyone actually had to
157 follow them. Shortly after we set off, I asked if Smith normally goes faster, but I did not get an
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Jordan Bennett White Star Owner / Eyewitness
158 answer. Smith seemed very focused on steering the boat and the barges around all the junk in the
159 river. It was light outside when I got into the boat, but it was getting darker and it became
160 increasingly harder to see as we went downriver.
161 Shortly before we got to Evansville, there were a few more boats in the water, even though
162 the sun was setting and it was dark. I do not blame the boats for being out in that part of the day.
163 Man – some of those boats looked so much more fun than I was having on the monster of a boat I
164 was on, slowly pushing a thousand feet of dead weight down the river. For example, there was
165 this speedboat circling around and speeding all through the river. Wow, that boat driver was
166 having some serious fun. The boat could not be seen well since it only had one small light, but its
167 motor was loud and the wake it was producing from its speed was quick and high, although still
168 not as high as ours. At one point, I saw it speed around the side of our towboat and barge and skip
169 in front, barely passing by us. Driving like that had to have been an adrenaline rush. I wanted to
170 be on that boat so badly. I could not understand why Smith loves being on the towboats so much,
171 especially since Smith spent almost all the time on autopilot, talking to me or going below deck
172 for who knows what. Mark my words: there are going to be robots doing Smith’s job in twenty
173 years. I should look into automated boating developers, which will be phases four and five of my
174 master plan for KHBC.
175 Smith picked up speed as we passed downtown Evansville, and then opened the throttles
176 up a little more around a really tight bend. As we were rounding this sharp curve, it seemed like
177 Smith was sliding the boat and cargo into the curve. I felt like I was in a car drifting on the Fast
178 and Furious movies. We seemed really close to the shore. I think I may have made a joke about
179 high-fiving the people on the docks. I was trying to lighten the mood a bit. But, what I do know
180 is that a river does not have designated lanes like a highway. Too bad the commercial boats could
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Jordan Bennett White Star Owner / Eyewitness
181 not have their own “carpool” lane for more efficiency. But one thing about my job is getting used
182 to not being the expert; Smith does this trip all the time, and I could tell Smith knew where to be
183 in the river. I was surprised Smith was willing to go past the floating red things, though, even if it
184 was for a couple minutes. Those seemed like they were a traffic lane or whatever. The boat
185 seemed to agree with me, though; the alarms up front started making some crazy beeping noises.
186 Smith shut them off cool as could be. I guess that was not the first time. I get it; I got one of those
187 new Audis last year, and the thing started squawking every time I changed lanes if I did not signal.
188 I traded it in after a month or two for a Jag that lets me drive.
189 It was around that time that I felt a thump along the right side. Or starboard, I guess. I do
190 not know why these boat people cannot talk English. We definitely hit something. Either Smith
191 did not notice or did not think it was a big deal because Smith did not slow down, so I said to
192 Smith, “Hey, I think you hit something. Should we stop?” Smith replied, “Probably just a log;
193 don’t worry, this is not one of those Nantucket boats of yours. It is more like a New York cab
194 hitting a stop sign. The sign is going to feel it more.” I was concerned about damage. Contract
195 penalty clauses are one thing, but physical damage to the boat or barges are another thing all
196 together. I figured there had to be damage to the boat, so I planned to check for any damage the
197 next time we stopped. Ultimately, I never did check for damage because as soon as we docked,
198 we were met by police.
199 A few minutes later, Obie came up to the wheelhouse. Obie commented on how many beer
200 cans were trailing behind in the boat's wake, so maybe they should stop and check it out. Smith
201 gave Obie one of the dirtiest looks I have ever seen (and keep in mind, I drive in New York traffic
202 every day) and kept going. Obie then left the wheelhouse so I followed Obie out.
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Jordan Bennett White Star Owner / Eyewitness
203 We went out to the back deck of the towboat. I asked Obie for more detail and Obie’s
204 opinions about the impact because it seemed pretty bad to me and because of that look Smith gave.
205 Obie said deferring to Smith’s judgment as an experienced captain was the best response. I asked
206 point blank: should we stop and investigate? Obie said that stopping is the course of action a
207 captain like Obie would have taken any time such an impact occurs, but that it was just a difference
208 in captain styles between Obie and Smith. I pressed for more and I was told in Obie’s opinion,
209 almost any captain would also have stopped just to be sure, especially with as bad as it sounded
210 and felt. I did notice some floating beer cans a bit behind our boat. Obie explained mentioning
211 them to Smith as a concern because of how many were visible, but that it’s possible they fell out
212 of that crazy speed boat that was cruising around. Obie also mentioned investigating more once
213 we stopped. I made clear that Obie had a bright future with the company, regardless of whether
214 Smith remained majority owner. Obie just kept repeating things, and so I gave up and went back
215 into the wheelhouse.
216 I am guessing, these towboats burn a ton of gas and the builders of these boats never heard
217 of global warming. We had to stop at another small port downriver from Evansville to refuel. As
218 we were pulling in, all these officers came on board. Apparently, that "log" and those beer cans
219 in Evansville was actually a fishing boat, and some baseball player had been killed. I was furious.
220 Not only were we now going to be late again and have to pay a penalty again, we were going to
221 be sued for sure. I got on the phone with my lawyer in New York and told her to get down to
222 Evansville as soon as possible with my crisis response manager. We needed to go into damage
223 control mode.
224 It was right after midnight when we all went to the police station in Mount Vernon. The
225 station was like walking into an old western movie with an old one-room cell, except, they treated
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Jordan Bennett White Star Owner / Eyewitness
226 us to stale donuts and terrible coffee. I offered to pay to have the local diner open back up and get
227 us real food, but nobody was hungry except me. After an hour or so, these Coast Guard officers
228 arrived and started asking questions. I told them they could ask my lawyer.
229 Look, this whole thing is sad. I do not know what that kid was doing in the middle of the
230 night messing with milk cartons or whatever, but it was a dumb decision to be out on the river in
231 the dark. But business is business, and business includes law. My lawyers are working on settling
232 with the ballplayer’s estate, you know, paying his medical expenses and making sure there’s
233 something in it for the family. Bad choices or not, it’s a terrible thing to lose somebody. Once
234 settling is done and Smith is convicted, I plan on taking control of the business earlier than
235 expected. My Brazilian friend still wants the boats and barges, and a rival barge company has
236 reached out to me about taking over the docks and the existing contracts. We can still make money
237 on this deal.
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
STATEMENT OF SMITH DAWSON
1 My name is Smith Dawson and I am sixty years old. I have lived in the Evansville area my
2 entire life. I was born in Evansville, but I grew up on the river in Newburgh. I have been involved
3 in the family business, the Knob Hill Barge Company (KHBC), for as long as I can remember.
4 The company was started by my grandfather, Jack, when he was a young man in 1936. He
5 started out by transporting raw goods and materials to produce ships and airplanes in Evansville
6 during World War II. However, after the war, he and his wife, Rose, expanded the business and
7 significantly grew their fleet of ships and barges, transporting coal, oil, grain, gravel, and other
8 materials up and down the Midwest river system. When my grandfather unexpectedly passed
9 away, my father, Edmund Fitzgerald Dawson, and my mom, the late Lucy Tania, took over the
10 business. My parents made their mark on the business by growing the transportation side and
11 expanding the company into marine construction, with Knob Hill Outfitters. I watched them turn
12 the business into one of the largest carriers-for-hire on the inland waterway system and a leader in
13 the marine construction projects.
14 Now KHBC has approximately 500 barges with a fleet of approximately 20 ships and 10
15 towboats, and we operate on the Ohio, Mississippi, Cumberland, Tennessee, and Monongahela
16 Rivers. While the operation has always been headquartered in Evansville, our marine construction
17 sister company, Knob Hill Outfitters, operates terminals in Cincinnati, Louisville, Cairo, Paducah,
18 Cape Girardeau, and Memphis, and we have refueling and repair contracts with docks up and down
19 the rivers we run. My sister Susan runs Knob Hill Outfitters now. My heart is still with Knob Hill
20 Barge, out on the river, but my sister keeps pressuring me about selling KHBC, because Outfitters
21 is more profitable. Operating KHBC is a real family affair and we spend most of our regular
22 Sunday dinners talking about the business.
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
23 I get it; shipping seems like a dying industry. But my heart is on the river, not in some
24 fluorescent-lit office planning someone else’s trips. I know every employee in KHBC, from the
25 captains to the newest deckhand. That is Bev Corn, in case anyone is wondering. Her dad was a
26 steamfitter back in the day. When my sister talks about selling KHBC, all I can think about is
27 those people. I ask myself, “Who will take care of them? Who will make sure they have decent
28 wages, a good health plan, and enough money to retire?” It will not be some venture capitalist.
29 Knob Hill is a family, and the river is our home. If either is given up, it will be lost forever.
30 One of the proudest moments I have had was witnessing my father win the Golden Beaver,
31 an Award recognizing people who have demonstrated particular skill, responsibility and integrity
32 in heavy engineering construction. Because of our boating and marine experience, we are able to
33 provide key insight into the construction of piers, wharf facilities, terminals, locks, and dams.
34 Occasionally, we partner with government agencies like the U.S. Army Corps of Engineers to
35 work on projects, particularly those with critical or pressing deadlines.
36 Growing up, if I wanted to spend time with my father, it was usually on one of the boats or
37 at one of his projects. The opportunity to spend more time with my father was one of the reasons
38 I took and received my Master’s License, which is a 100 Ton License from the United States Coast
39 Guard (USCG) in 1979. This license allows me to captain vessels that weigh up to 100 gross tons,
40 which means I had to do a lot and know a lot to get this license. There are a minimum of 360 days
41 of boating experience required, which is almost a whole year. I also had to pass a physical and
42 drug test, hold valid CPR and first aid certifications, and complete a Coast Guard-approved course.
43 I worked hard for the Coast Guard license, and I took pride in knowing I could pass the
44 requirements perfectly. Being a Dawson, I knew I had to do it for the family. I have had my
45 USCG Master’s license ever since and I recertify all requirements every few years.
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
46 In 2018 our business was doing alright, but it felt like we were slipping a little. Although
47 many investors had knocked on our door before, I was intrigued by what Jordan Bennett’s
48 company, the White Star Fund, had to offer. Jordan reached out to me in the first quarter of 2019,
49 and it seemed to move quickly from there. It wasn’t long after Jordan contacted me that we agreed
50 to material terms in a term sheet. However, the deal wasn’t set to close until September of 2019.
51 I remember May 4, 2019, like it was yesterday. I was the replacement captain that day
52 because the scheduled captain called in sick. Yeah, I was a little sick that day, too, from having
53 entertained Jordan Bennett the night before. Being on the river helps clear my stomach issues up.
54 I picked up Jordan from the airport on May 3. I drove around downtown to show off the river and
55 then took Jordan to our office. We spent several hours going over the company’s books and
56 financial records. When I learned that Jordan wanted to see the operation, I insisted that we go for
57 dinner and drinks at the Petroleum Club after we finished at the office. My grandfather was one
58 of the founding members back in the 40’s. My grandfather would tell me story after story of him
59 hanging out with the oil businessmen at the old McCarty Hotel, watching the boats go up and down
60 the river. He always told me that is where he fell in love with business and boats.
61 It is fair to say that Jordan works hard and plays harder. I consider myself a conscientious
62 business person, but Jordan seemed to be fascinated with our data and financials. The level of
63 intensity Jordan used when poring over the financials was impressive. Jordan asked a lot of
64 questions, but they were the right questions, at least for someone with no real boating or barge
65 experience.
66 The one thing that shocked me was when Jordan mentioned we were close to hitting a
67 penalty with our Ohio River Consortium (ORC) clients. The ORC is a group of smaller buyers,
68 suppliers, and manufacturers who purchase shipping together. Their purchasing power makes
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
69 them – collectively, as the ORC – the second- or third-largest buyer on the whole river, and they
70 are our single largest client by dollars. A couple years ago, they moved to an incentive contract
71 structure. The way incentive contracts work is the two parties agree on a certain outcome at a
72 certain time. If we did not meet the outcome or timeline, a penalty was to be paid. However, if
73 we were early, we got a bonus. Usually, it is a win-win to keep both sides happy and on schedule,
74 if not ahead.
75 Because of our longstanding relationship with the ORC, we negotiated that KHBC would
76 only pay penalties if we were late ten times in a rolling 90-day period. I knew the spring of 2019
77 had been tough, with many staff out because of a pervasive case of the flu. And for a couple weeks
78 in late February, we staffed our fleet with skeleton crews and with captains who were not sick in
79 bed. I thought we’d been late five or six times, but Jordan told me it was nine times. That meant
80 if we were late again, it would come with a penalty of $15,000 on each of the ten contracts. KHBC
81 is a good company, but that kind of cash would be a serious hit. I doubt we would have had to sell
82 any boats or anything, but I do not think there would have been holiday bonuses.
83 We executed a term sheet between KHBC and White Star Investments with the deal due to
84 close in September. Jordan Bennett represented White Star. Jordan did not seem as upset about the
85 potential penalty as I expected. Jordan kept digging through the books to learn more about KHBC.
86 Someone told me later that our contract with White Star would have put the business in jeopardy
87 of being taken over, but I was not thinking about that then.
88 After we got to the club and Jordan had a drink, Jordan’s questions seemed to multiply and
89 become more creative. With each question came an idea or thought about how to change or
90 improve the business. I tried to slow Jordan down by telling stories of how long it took my family
91 to build up this business and how we got here, which happened by expanding our family to include
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
92 our business family one Sunday dinner at a time. The background did not seem to help Jordan’s
93 mindset. Jordan was particularly interested in leveraging technology to improve margins and
94 revenue. I am not so gung-ho about that. We experimented once with technology and it ended up
95 costing us a lot of money. Someone told me once that I was technology averse. I cannot say that
96 I disagree.
97 As the night went on, I stopped keeping track of Jordan’s drinks and ideas, even the good
98 ones. I was not watching the clock, but we were one of the last ones to leave the club. I remember
99 this because the maître d’, Tommie, gave me the discrete high sign that the club was closing. I
100 walked Jordan over to the hotel around 11:00 p.m. and walked a few blocks to my downtown
101 condo.
102 I am an early riser, so I showed back up at the hotel around 7:30 a.m. I noticed that Jordan
103 was wearing this silly get-up, as if dressed for yachting in the Hamptons or something. I took
104 Jordan back to the office to finish digging into our records and financials some more. I had my
105 staff set Jordan up in a conference room and get whatever records were needed. Then I met with
106 my sister and our management team to go over the contracts for the coming month, which is our
107 usual Saturday morning routine.
108 I was startled when Jordan popped into my office around 3:00 p.m. and asked if I wanted
109 to go to the sports book at the club. Jordan indicated having a hot tip on a horse running in the
110 Kentucky Derby that day. I have been to the Derby several times, but I am not a huge gambler. I
111 obliged, grabbed Obie, KHBC’s boat mechanic and relief captain, on the way out of the door and
112 we walked over. I knew Obie would not want to miss out on the action. Anything was better than
113 having Jordan sit and obsess over the penalty contracts. It is not that I love these types of contracts,
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
114 but the people hiring us do, and whoever pays the bills calls the shots. So we take the incentive
115 contracts when that is what is offered.
116 Shortly after we arrived at the club, I got a call that one of our captains called in sick. I am
117 the regular weekend relief captain, and I knew this was a possibility, so after the first round I
118 started drinking water. Now on the other hand, Jordan had several drinks. I told Jordan I would
119 need to captain the ship and encouraged Jordan to stay at the club. But of course, Jordan insisted
120 on going with me.
121 I was not anticipating captaining a boat that day, but it was no big deal. Unfortunately, that
122 happens more frequently than I would like to admit. I met the crew right above the Newburgh
123 Dam and Lock and switched in. It was easy enough. River towboats are purpose-driven machines
124 that are set up much differently than other boats. We call them towboats, but mostly they push the
125 barges, not pull them. In our company, we run identical boats, and we use standard 200’ x 35’
126 barges, so we do not have to learn or adjust to different machines or computer equipment. Having
127 matching equipment is something I learned from my father.
128 Each of our towboats is 150 feet long and 45 feet wide. They are each something like four
129 stories tall with the wheelhouse, where the pilot sits, at the top, followed by the Texas deck, the
130 engine and generator room on the second deck, and the mechanical room on the first deck. Most
131 civilians think that the engines and generators are on the first deck, but they are actually on the
132 second deck. We reserve the first deck for the giant mechanical winches that we use to connect
133 the barges. And of course, the Texas deck below the wheelhouse is where the crew’s quarters are
134 located.
135 I was in such a hurry to get over to the boat that I forgot my reading glasses. Now keep in
136 mind, I do not need them to drive or for distance vision. But my reading glasses help with reading
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
137 some of the equipment. To help with that and save time, I called Obie Goode to meet me on the
138 boat, too. I know we had just left Obie after lunch, but I figured Obie could do the mechanical
139 checks while I drove. We needed to keep the boat on schedule, and I was eager to be rid of Jordan.
140 I figured Jordan would get bored, especially after seeing the outfit Jordan was wearing.
141 I ran into a problem late that afternoon. I received a message while at lunch from the U.S.
142 Coast Guard (USCG) instituting a “no wake” policy in immediate effect until further notice for a
143 good length of the river around Evansville. That policy meant we had to go more slowly, which
144 was going to put us behind, and I could not let that happen. I called N.J. Neer, with the USCG, to
145 ask about it. Neer told me the river was getting high and they needed to keep the traffic slow to
146 avoid accidents. I told Neer that I thought that was an extreme step, and the river did not seem too
147 bad to me. They could have simply given warnings and not make a mandatory “slow, no wake”
148 zone. Neer agreed that was an option, and I was left with the impression Neer would think about
149 changing the restrictions or give me a waiver. I hoped Neer would issue the revisions soon
150 thereafter. I did not actually see any “slow, no wake” signs along the river, but I did not get a
151 notification of the change from the USCG either.
152 Here is what needs to be understood: “Slow, No Wake” is totally misnamed. Slow, yes,
153 but “no wake” is impossible for a towboat pushing 15 barges, which is our standard load. There
154 are parts of the river where the towboat has to have a wake. Thankfully, the Coast Guard
155 understands that, and their guidance is clear. The priority is to maintain steerage, which is to stay
156 in control of the vessel especially around tight turns, that can require enough power to put out a
157 modest wake. A wake can be minimized by “drifting” into position, but at the critical time, the
158 engines have to be powered up to change course toward the new direction.
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
159 Anyway, as I got out of the Newburgh Locks, I saw Obie and Jordan waiting for me to
160 board. They got on board, and at 6:34 p.m., we were cleared to head downriver above the dam
161 headed to the locks. A bigger feeling of dread was coming over me now. Barges haul immense
162 cargos, but they are not speed demons; an average speed of six miles per hour is pretty solid. Our
163 schedule had us clearing the locks and getting downriver quickly, but for reasons that no one
164 bothers to explain to shippers like us, things were running late. The dam staff do not do a very
165 good job, and especially on weekends, they can be slow. Worse, I personally do not like to run the
166 boat through the Evansville oxbow at night if I can avoid it. I have done it several times, so it is
167 not a huge deal, but I would rather be clear of it before dark for sure.
168 The sun usually sets shortly before 8:00 p.m. that time of year. Even making good speed,
169 we would be hitting Evansville at sundown. And, if we were slowed by personal watercraft or
170 anything else, we would hit there after nautical twilight, the time when one can reliably see the
171 stars. Because of the incentive contracts, a late shipment could cost the company a significant
172 amount of money. The shipment had to get from Newburgh to Memphis, Tennessee by May 10.
173 If it didn’t, the company would take a 10% hit on the contract.
174 Unfortunately, that day, since it was not a normal day, I forgot to complete the Vessel
175 Safety Check (VSC) from the U.S. Coast Guard. The Coast Guard requires formal certification
176 using the form annually, but KHBC requires each captain to complete it before each trip, including
177 all discussion and recommended items. I would have guessed the previous captain would have
178 done it before I took over, and I placed a reprimand in her file for failing to do so. Regardless, I
179 did not do it when I boarded. KHBC has an impeccable safety record, which I think is partially
180 due to our record-keeping, including using the VSC. We have been able to grow and expand
181 because we have been able to avoid accidents or disasters through our stringent safety policies.
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
182 From the rare occasions I’ve crewed boats for other companies – we river folk take care of one
183 another, so if somebody is sick bad and no one can fill in, we sometimes help out – I can tell you
184 that’s not always the case. One company I crewed for, the autopilot wasn’t working and they said
185 it was. Darn near ran full aground when the boat was on autopilot while I answered nature’s call,
186 and we did grind up against the riverside. Tore up the retaining wall a bit. Of course, the company
187 told the Coast Guard it was working fine. We all know autopilots glitch sometimes. But that was
188 bologna. The only time a boat I was captaining was cited for safety violations, I’m glad it wasn’t
189 one of ours.
190 ‘Course, it wouldn’t have been. We use the most current technology on our boats. There
191 are tons of products out there, but we use East Marine Autopilot products in all our boats because
192 we think it is the best brand out there. We do a technology check and status update every few
193 years to ensure that we have up-to-date equipment. In addition to the computer and navigation
194 technology, we also have several radios in the wheelhouse. With so much traffic on the river,
195 particularly the Ohio River, it seems I am always on the radio talking to other boats and captains.
196 I sometimes keep a portable radio speaker on my lapel to make it easier to communicate. And of
197 course, we have an Automatic Identification System (AIS) in every vessel. That is of less use with
198 the small boaters, because they often do not pay for transceivers, but it gives us up-to-the-minute
199 data on every craft with an AIS anywhere on the river. The newest versions even tie into the
200 autopilot to give it better information on currents, but ours are from 2015, which do not have that
201 feature.
202 Although our company can require the highest safety standards, we cannot dictate those to
203 everyone else on the water. I have seen some crazy things in my time on the water. The beginning
204 of May is when the river boat traffic gets heavy with big pleasure boats, ski boats, other barges,
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
205 and personal water crafts, known as PWCs. People have to be vigilant because there is always
206 something moving around, especially in spring when people get new boats. I have seen the sales
207 sticker price still on the windows of boats. Ugh. They cannot even get the simple things right when
208 boating. Maybe we need stricter boating rules. And do not even get me started on PWC’s. Some
209 people call them ski-doos; I call them ski-don’ts. Sure, they are fun, but do not take them out on
210 the Ohio River. Go play on one of Indiana’s hundreds of lakes and reservoirs. Imagine what it is
211 like dealing with those. Envision trying to spot a small bird, at twilight, three football fields away.
212 Now picture trying to steer 20,000 tons of barges, in a line, around that bird. An all-terrain vehicle
213 (ATV) would not be allowed on the interstate, so it baffles me as to why those pleasure craft are
214 permitted out on America’s riverside superhighways. I even testified in 2016 before the legislature
215 about these very concerns.
216 That night it became clear to me why pleasure boaters need to be more cautious. The sun
217 had totally set. And even after dark when we had passed the oxbow, there were more pleasure
218 boaters out than I thought should be for that time. I could tell some of the boats were well lit and
219 following protocol, but not all of them. There was this one reckless speedboat winding all over
220 the river. It was going fast with complete disregard for any of the rules to be on the river. The
221 fishing boats were tolerable, but those pleasure boaters were something else. I could barely see
222 the speedboat because it did not have correct lighting for night boating. It also came really close
223 to my towboat and barges, the shore, and other boats out there. It needed to be kicked out of the
224 water. And, if there was a collision, I knew that Knob Hill would be blamed. Watching out for
225 idiots like that requires a lot of a captain’s attention.
226 So yeah, a lot was going through my mind as we made our way through the Evansville
227 area. We were running late on this run, and I did not want to incur a penalty. I am guessing that’s
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
228 why Jordan was on this trip and sticking to me like glue. Jordan already owns almost half of the
229 company, and I know Jordan was chomping at the bit for more. There was a lot of debris in the
230 water and it was hard to see it in the dark. None of this was ideal, but was not unusual. I am
231 experienced. I know what I am doing. And I had the autopilot running a bunch of the time. Our
232 autopilot software is great, and it lets the captain focus on other things, like keeping an eye out for
233 crazy speedboaters or logs the radar would miss. Plus, it was helpful if needing to spend the whole
234 trip answering questions from a clueless Wall Streeter. I have learned to use the autopilot as a tool,
235 not as a crutch, which is what I did that night.
236 Yeah, there was an alarm. The autopilot is set to let the captain know if there is anything
237 unusual by making a noise, and our modern ones send a text to your phone in case you’re not in
238 the wheelhouse. It was having issues with course correction or something, and it wanted to confirm
239 its course. I disabled it, and I took the helm myself. A lifetime of instinct is worth, well, a lifetime
240 of instinct in these situations. I accelerated the Roberts out of the drift-path and pointed downriver.
241 It is like coming out of a high bank during The Brickyard 400 at the Indianapolis Motor Speedway,
242 only in super-slow-motion.
243 As we were coming through Evansville is when the accident occurred. I did not think it
244 was a big deal when it happened. I know I was not going very fast. I was not going slow, exactly,
245 but it was not fast either. I do not know how much wake I was producing. Probably some, but it
246 could not have been real big. Like I said before, I had not heard back from Neer about an official
247 change in the “slow, no wake” emergency order. I was probably pushing it a little bit, but it was
248 the minimum acceleration needed to maintain control. I know some folks have talked about a
249 bigger wake at the collision, and I admit, it is possible. But the longer the boat’s drift, and the
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
250 stronger the current, the harder it is to push and change course. That fact is not on me; that is
251 physics.
252 It is horribly ironic that this accident involved two members on the River Rats. KHBC is
253 a local sponsor of the team, and I have personally been a season ticket holder for years. This death
254 is a horrible thing for the community. I could not believe I had something to do with it. I seriously
255 did not know I hit another boat, let alone a boat with people in it. There were so many logs in the
256 water, I thought it was one of them. I am sick over this, but I did not know I hit a boat until the
257 Mount Vernon Police Department said I did. When I was interviewed by Neer and the US Coast
258 Guard, they indicated that I hit the boat and there was a fatality.
259 The rules of the river apply to all boaters, not only to the professional boat captains. At the
260 end of the day, everyone on the river is responsible for abiding by them. I am very sorry that
261 Catfish lost his life, but I am not responsible for his death. To this day, I do not know how that
262 boat got where it was without me seeing it get there. For the M/V Susan K. Roberts to hit their
263 boat, they had to be out in the commercial traffic lane. Even with the autopilot having drifted us
264 a bit closer to shore than I usually go, I know I was not below decks long enough for us to leave
265 the channel. All that stuff about slapping five with the locals is typical New Yorker exaggeration.
266 Jordan Bennett may know figures, but that is not the same as knowing anything about nautical
267 distances. And I doubt it has escaped Jordan’s attention that making me look bad makes the
268 company cheaper. Even so, I know I never go outside the safe margin and, current or not, I would
269 not have on May 4, either.
270 Evansville is located on an oxbow in the river so it is necessary to pay particularly close
271 attention when going through that portion of the river. I am, and always will be, careful. This
272 accident is going to hurt me and the company. I feel like I have lost my reputation, and that is the
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Smith Dawson Captain of the M/V Susan K. Roberts / Defendant
273 thing that matters most on the river. And I am sure the company is going to be sued, too, which
274 will impact our insurance rates. I feel horrible about my role in what happened. And when I learned
275 Noa/h was on that boat, my heart sank. The fact of the matter is that I was not reckless. I was
276 doing my best to work under challenging circumstances created by others, which included whoever
277 lets jug fishermen into the commercial channel. As sad as I am, I am not responsible for this.
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Obie Goode Mechanic / Relief Captain / Eyewitness
STATEMENT OF OBIE GOODE
1 My name is Obie Goode and I am fifty-three years old. I am a retired police officer,
2 specializing in water rescue, safety, and crimes involving the water. After a twenty-five-year law
3 enforcement career with the Evansville Police Department (EPD), I took a part-time job with Knob
4 Hill Barge Company (KHBC). Growing up in Newburgh, I remember coming to downtown
5 Evansville with my family, and exploring the area – especially Dress Plaza and the riverbank. That
6 was the beginning of my appreciation for the Ohio River, which is the heart of the city. I have
7 always enjoyed being on the water and personally own two boats. One is a fishing boat and the
8 other is a pontoon boat for the family to relax, enjoy some tubing, and more. We keep both boats
9 docked at the Mariner Pointe boat slips, which is upriver from the Evansville riverfront. Since we
10 live downtown near the Haynie’s Corner neighborhood, it is convenient for us to walk or bike over
11 to Mariner Pointe whenever we want to take out one of the boats.
12 For KHBC, I serve as a boat mechanic and relief captain. A relief captain is the person
13 who takes over for the captain when the captain wants to sleep, eat, or get out of the wheelhouse.
14 Something I especially like about KHBC and Smith Dawson, the owner, is that a lot of pride is
15 taken in hiring diversity when hiring their captains and crew. There is not another company on
16 the Ohio River that comes close to matching KHBC’s commitment to diversity, which is one
17 reason I was happy to take a position with KHBC.
18 As a first mate/mechanic, I will often jump onto one of the boats for its run down the river
19 if the boat is experiencing mechanical issues or if there is a concern something is not quite right
20 that I could help with. I have always been mechanically inclined, and my training as a police
21 officer included specialized classes in boat inspection, particularly once I became lead on the
22 inspection team. When not on duty with the EPD, I served as a Coast Guard Auxiliary volunteer,
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Obie Goode Mechanic / Relief Captain / Eyewitness
23 which included specialized training and refresher courses. I have spent almost twenty years
24 inspecting or assessing the condition and seaworthiness of both sailing and powered vessels.
25 Between my time in the Coast Guard Auxiliary and EPD River Patrol, I have probably investigated
26 three or four dozen boat collisions, which included two fatalities.
27 On May 4, 2019, I got a call from Smith Dawson not long after we left our late lunch,
28 asking if I could join the trip. I kind of wish I had been asked to join before we left after lunch,
29 instead of having gone home, and then back out again. Oh well, such is the job and such is life.
30 Smith indicated being short on time and wanted me to do the inspections while we were in route
31 to help Dawson get back on schedule. I also figured since it was an overnight trip, I might get a
32 couple hours behind the helm as acting captain. I try to get as much captain experience as possible,
33 and I enjoy it too. I do not want a full-time job or anything as a captain, but being a fully qualified
34 skipper for KHBC would mean a significant pay bump from first mate/mechanic. Every hour
35 behind the wheel counts. So of course I told Smith, “no problem.” I grabbed an overnight bag and
36 I headed to the Newburgh Lock and Dam to meet up as the towboat would be coming out of the
37 locks. I knew I was a few minutes early, but the towboat was not even in sight. “Damn that dam”
38 might as well be Smith’s motto, as often as I have heard it said. Not as much as I have heard Smith
39 swear about pleasure boaters, which is why Smith does not like weekends. Between the pleasure
40 boaters and the extra delays at every lock, there is major time bleed.
41 Meanwhile, standing at the edge of the docks, Jordan Bennett was also waiting there still
42 wearing this preppy looking “Cape Cod” outfit, which was very misplaced for what we were doing.
43 We were not going to be on a massive yacht with wait staff. I, of course, was in jeans, a flannel
44 shirt, and steel-toed boots. I, of course, work for a living. The crazy thing was that when the M/V
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Obie Goode Mechanic / Relief Captain / Eyewitness
45 Susan K. Roberts stopped to pick me up, Jordan also got on board without even saying hello to
46 me. I thought it was especially rude given we just had a late lunch together.
47 I headed up to the wheelhouse and Smith greeted us both. I knew Jordan’s company, White
48 Star, and KHBC had signed a term sheet. I cannot imagine Smith completely selling the company,
49 though. Smith lives, eats, breathes, and bleeds for Knob Hill and would never want this company
50 to leave the family. KHBC has been a local, family business for more than 70 years. The Dawson
51 family cannot even have Sunday dinner as a family without talking shop.
52 Smith said I would be the relief captain for the night. And I guess Jordan would not be
53 doing anything because Jordan was dressed too nice to help us. Jordan sat there playing on the cell
54 phone. Every now and again, Jordan was distracting Smith with random and ridiculous questions.
55 In the meantime, Jordan had this weird expression as if being better than everybody else. I could
56 not tell what Jordan really wanted. But, it was obvious from the fidgeting and the biting comments
57 that Jordan did not want to be on the boat. It was as if “money” does not do real work.
58 Smith excused us, set the boat on autopilot, and all of us walked off the bridge. A bridge is
59 the main control center of the vessel where the captain and officers are able to man the entire
60 operations with unrestricted view and immediate access to the essential areas of the ship. It is not
61 recommended to leave the control room without a captain, but there is no rule against it. Captains
62 have to use their best discretion, and Smith is one of the most experienced captains the company
63 has. The boat’s autopilot is good and I figured we would not be gone long. Afterall, the part of
64 the river where we were was straightforward and not complex.
65 We walked down to the engine room. Smith mentioned leaving reading glasses at home
66 and could not inspect the particulars normally, reiterating not having enough time personally since
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Obie Goode Mechanic / Relief Captain / Eyewitness
67 we needed to be ahead of schedule. Smith handed me an extra headset radio and asked me to look
68 everything over.
69 Smith is normally a cool cucumber and was effectively born on the river, but that night
70 Smith was pretty uptight and anxious about something. I am not sure what Smith was worried
71 about since I was an added crew member for the night. But I could see it probably did not help that
72 Jordan, the investor, was breathing down everyone’s neck. Smith likes to do the check but
73 couldn’t. And Smith seemed to want to get things moving. Normally, I would not have been called
74 into work when Smith was available. So, when I mentioned that, Smith sneered at me and said that
75 “the next week or two, we have to be perfect, to keep that vulture out of the boardroom.” Smith’s
76 statement was odd to me. KHBC was doing fine as far as I could tell.
77 It was getting dark. The river was high. There were a lot of logs and debris in the river.
78 Whatever it was, Smith was tense and nervous and quickly headed back upstairs. I heard Smith
79 start schmoozing Jordan immediately after getting back to the wheelhouse and the conversation
80 seemed steady. It sounded like Smith snapped right back into the familiar happy-go-lucky attitude.
81 I do not know exactly what they were doing up there or if Smith took the wheel or left it on
82 autopilot. Either way, things sounded better.
83 It took me about forty-five minutes to look over everything on the boat. I did not find
84 anything wrong after looking it all over. I was glad Smith was being cautious by having me help
85 with the safety check while Smith was focused on operating the boat. I did not complete a Vessel
86 Safety Check (VSC) form; only the captain can do that. Think of it as something like a visual
87 inspection an airline pilot would do before takeoff. When I finished the inspection, I stepped out
88 of the engine room and stood on the back deck.
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Obie Goode Mechanic / Relief Captain / Eyewitness
89 We passed the marina where my boat is docked, and I saw it bobbing in the Roberts’ wake.
90 I could tell the water was high and it was about as high as I could ever remember. I stayed on the
91 back deck enjoying the spring night. Because I still had my headset on, I could also hear what was
92 going on in the wheelhouse. I heard alarms going off in the wheelhouse and got an automated text
93 message from the ship’s computer saying the same thing, which meant the boat was off the
94 computerized course and the captain should make a course correction. If I had to guess, I would
95 say I was on the back deck ten or fifteen minutes or so, but I was not checking my watch or
96 anything.
97 There was an unusual amount of boat traffic for it being that time of the evening, or I would
98 say night by then. Oddly, even those little Ski-Doos were out, which was really strange for that
99 time of night. Normally, the jet skis are not rented out if the water is up or the current is running
100 hard. And one boat in particular kept weaving around the river. It was some kind of a skinny
101 racing boat. The driver of that boat was having all kinds of fun, but it definitely was not safe. The
102 speedboat was going so fast and making all kinds of wake all over the place. And, to top it off,
103 the boat was not very well lit.
104 I could see our boat and barges were deviating from the traditional route down river and
105 sailing closer to Dress Plaza than normal. Because the oxbow was right there, it is a particularly
106 tricky part of the river. Over the radio, I heard Jordan in the wheelhouse say something about
107 high-fiving the people on the shore. I heard Smith turn off the alarm system after it sounded and
108 tell Jordan the towboat was being navigated by sight since Smith knew this part of the river so
109 well. Smith told Jordan about having maneuvered the oxbow many times before and how the
110 maneuver was learned from Smith’s Dad and grandfather. Smith is definitely experienced and I
111 knew there was no doubt the barges could be navigated through the oxbow, but I sure would not
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Obie Goode Mechanic / Relief Captain / Eyewitness
112 try it without a bunch of computer assistance or at least better lighting. And maybe not even then,
113 given the current. The current is a real bear when pushing 15 fully loaded barges, which measures
114 just over 1,000 feet long. (It’s not a single-file line; we typically push a “block” of barges three
115 wide and five deep.) I then saw Smith point to the deck from the wheelhouse and Smith tell Jordan
116 to go look for folks on Dress Plaza to talk to.
117 Right around that time, I heard a crazy noise as that speed boat shot around the stern or the
118 back of the Roberts. It kicked up high in our wake, and I thought the speedboat might actually
119 ground on the river bottom. When it hit the water, it dug deep and the driver throttled the engine
120 to get the maximum speed to avoid hitting the shore. I simultaneously heard and felt Smith rev-
121 up the Roberts’s engine. Not going full throttle or anything, but definitely hard. The props started
122 throwing big water out the back, and I hopped down the ladder to watch the gauges. I was not
123 worried, but I was the mechanic, so it was my job to be alert in case there were any red flags. But
124 the Roberts was running great. The Roberts responded perfectly, and all the gauges were in the
125 green.
126 It was right about then that I heard a loud noise and I felt the Roberts vibrated with the
127 sound of it. Over the radio, I heard Smith tell Jordan that it must have been an errant rock, log or
128 something.
129 While I tried to be discreet because of Jordan, I went up to the wheelhouse and told Smith
130 that we ought to stop and wait to ensure that everything was okay. I let Smith know I had seen
131 several beer cans floating in our wake shortly after the impact. Occasionally some beer cans are
132 seen on the river, but it was unusual to see so many. I figured someone would be mad they lost
133 that much beer, and I hoped it had bounced out of that speedboat. It would have served those
134 boaters right. Honestly, though, I suspected it was more than that.
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Obie Goode Mechanic / Relief Captain / Eyewitness
135 There had to be some damage somewhere. It was quite a hit! Ships like the Roberts carry
136 a tiny, two seat powerboat near the stern, in case someone falls overboard or something. I mean,
137 imagine trying to pick up a person in a 150’ towboat. I do not like the little things, especially in
138 higher currents or waves, but I knew my job. I volunteered to take the rescue boat out and
139 investigate. The rescue boat has a small rebreather and a spotlight that works above or underwater,
140 so I could have checked the sides and the hull above and below the waterline. Would have been
141 cold as… well, it would have been cold, but remember, I had been on the Evansville PD water
142 team and was very comfortable on the water. It probably would have taken fifteen, maybe twenty
143 minutes. Smith said everything looked fine and that we would stop at the nearest port down river,
144 which was in Mt. Vernon, for fuel anyway.
145 I shrugged to myself, and our boat kept motoring down the river as if nothing had happened.
146 After checking all the engine lights were still green and there were no leak indicators, I took my
147 place again on the back deck. That is when Jordan came outside too. Jordan started interrogating
148 me about the impact and about Smith, asking me if I would have done things differently. I
149 explained that Smith was captain and Smith’s direction should be followed—Smith is captain and
150 owner because of Smith’s long and extensive experience on the river. When pressed, I did say
151 that I would have stopped just to be safe, but that was just different captain styles between Smith
152 and me. Jordan even offered me protection from Smith to be candid with Jordan. Smith is my
153 long-time friend and colleague. I respect Smith’s judgment, even when mine is different,
154 especially on matters of the Ohio River.
155 I did not find out what exactly happened until we arrived in Mt. Vernon. We were detained
156 by the Mt. Vernon Police Department and then individually interviewed by the Coast Guard
157 Investigators. When I found out we may have hit a boat, and it was Noah/Noa and Catfish, I
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Obie Goode Mechanic / Relief Captain / Eyewitness
158 became physically ill. When I was working with the EPD, I worked off-duty security for River
159 Rats and spent a lot of time with the team. They were such good people. Not that anyone deserves
160 that, you understand. My spouse, Taylor, and I even host a team member some years. Noa/Noah
161 was living with the Smiths, but I had been introducing Noah/Noa around, hoping to help build a
162 real career. Drinking and marketing independent baseball was not going to get Noah/Noa
163 anywhere in life, and even a fool could see Noah/Noa’s portfolio was not major league material.
164 But Noah/Noa had a college degree and had worked with law enforcement and our Narcotics crew
165 on that opioid thing, so I figured a person like Noah/Noa would fit right in with the EPD. There
166 is a reason I call my little fishing boat Pension at 45, and I cannot turn down a chance at a job with
167 plentiful overtime.
168 After we found out at Mt. Vernon what allegedly happened, I was heartbroken. Life just
169 changed and felt different. Smith cancelled the regular Sunday dinners we were used to enjoying.
170 Smith mentioned not having the heart in them anymore and did not want to say anything that could
171 get Smith in trouble. Noa/Noah, of course, moved out of Smith’s home, and I started drinking
172 more heavily. Losing Catfish reminded me of a kid I had seen in the water after a Ski-Doo accident
173 in 2007. I guess I had held the memories buried deep for a long time, but then started having even
174 more issues. It was my spouse, Taylor, who helped pull me through it all. Well, I guess it was
175 Taylor and also Smith Dawson who helped me. I was blaming myself and blaming Smith for
176 Catfish’s death, but KHBC helped to pay for a counselor, and I got the help I needed with the
177 collision and, well, with a lot of things I had been holding inside. I am proud to say I am eight
178 months sober. I am feeling better than ever, and I am a better parent and spouse. So there is a lot
179 for which I am grateful.
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Obie Goode Mechanic / Relief Captain / Eyewitness
180 Look, I was an officer for a quarter century, so I get the need to blame someone when
181 something goes wrong. But Smith Dawson is just about the least reckless person I know. The
182 speedboat speeding around was the reckless one. It sure caused problems. Sure, I would have done
183 some things differently, both before and after the collision. I might not have even taken the Roberts
184 down the Ohio River that night. But to say Smith was reckless is wrong. How Smith operated that
185 night was the captain’s call. It is part of being on the river, for better and for worse.
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Portino/Portina Storm Expert
STATEMENT OF PORTINO/PORTINA STORM
1 My name is Portino/Portina Storm and I am president of Pacific Trident Global, Inc., an
2 international consulting firm with expertise in ocean, canal, and river shipping. I was born in
3 Napoli, Italy, which is a major shipbuilding and shipping center in the Mediterranean Sea. My
4 father was a career officer in the Marina Militare (the Italian Navy) and my mother ran her family's
5 pizzeria in the Vomero district overlooking historic Napoli.
6 The seafaring life called to me, more than the pizza life, so I followed in my father’s
7 footsteps and enrolled in the Accademia Navale in Livorno in 1980 and was commissioned as an
8 ensign after graduation. After ten years in the Italian Navy, I left Italy and moved to the United
9 States to take graduate classes in maritime administration at Texas A&M University. Following
10 my education, I worked on a large variety of watercraft, including towing and freight vessels,
11 commercial fishing charters, tankers, and even cruise ships. My role and duties on those vessels
12 primarily centered around oversight of passenger or product safety, security, accident
13 investigation, staff training, best practice procedures and protocols, and compliance with all
14 company and governmental regulations.
15 I have testified as an expert approximately forty times on navigation, marine safety,
16 command and control, security, emergency preparedness, and shipboard occupational health and
17 safety. In twenty-nine instances I testified as a defense witness and on perhaps ten occasions I
18 testified as the plaintiff’s or government’s witness. Ten of these occasions were in American
19 courts; the rest were overseas. I appreciate the challenges that companies face in dealing with the
20 public, because I worked inside on those issues. As an expert, I have addressed safe boating
21 practices and the standard of care required in a captain of both inland and open waters. I am known
22 in the industry for my creative problem solving and ability to communicate to those who may not
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Portino/Portina Storm Expert
23 have significant boating experience or understanding. Because of my background and the fact that
24 I have traveled and lived all over the world, I am able to effectively communicate with people
25 from various cultures and education levels.
26 I am so proud to have settled down in the States and become a naturalized U.S. citizen in
27 2004. In fact, our naturalization ceremony was part of a program called We the People: The Citizen
28 and the Constitution, where students from across the state studied the U.S. Constitution and then
29 took part in a competition about their Constitutional knowledge. It was a great tie-in to our
30 naturalization ceremony as the U.S. Constitution was an important document I had to study.
31 Obviously, though I still have great affinity to the country of my birth, a few things did change.
32 "Storm" is actually the translated version of my Italian last name “Tempesta.” I changed it for
33 marketing and pronunciation reasons when I moved to the U.S., knowing my ambition to run a
34 successful marine business someday.
35 After my time at Texas A&M, I obtained enough training and experience on U.S. waters
36 to immediately qualify for the United States Coast Guard (USCG) Master, 100 Ton license. I have
37 tremendous respect for anyone who does have that license. Someone seriously has to know their
38 stuff to have earned it. Before launching my consulting company in 2007, my most recent position
39 has been with GPB Shipping. I captained several of that company's river barge vessels, including
40 the Sea Brook; the Handsome Devil; and the famed Nada Omelet.
41 I was involved in one minor incident during my time with GPB. In April 2005, I was
42 captaining the Nada Omelet on a run down the Mississippi River from Davenport, Iowa to Cairo,
43 Illinois, when we ran aground on an underwater sandbar known as a shoal, just outside of St. Louis.
44 A few barges capsized and several thousand tons of cargo spilled into the river. The shoal was not
45 on my charts, but as captain, I am ultimately responsible for being aware of shifting conditions,
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Portino/Portina Storm Expert
46 especially in the spring when rain and snowmelt can change the river bottom faster than it can be
47 charted. A reprimand was placed in my employment file, and the company was fined. Things got
48 nasty because my boss asked me to lie about things. I refused, of course, so then my boss lied
49 about me. So not only was a notation made in my USCG Master file about the incident, that
50 notation says I attempted to mislead investigators. Cosi ingiusto!
51 After the incident, I lost my taste for being on the river and started thinking of going solo
52 as an independent contractor. I left GPB on my own terms, several years after my arrival in the
53 U.S.
54 I have extensive knowledge of river barge towing and pushing systems, including autopilot
55 systems. I also am the main consultant for my company when people hire us to help make shipping
56 policies and procedures. Many times, companies bring us in to assess whether to upgrade their
57 technology and, if so, what technology to purchase. I am familiar with a variety of systems, and
58 because I often know what systems are interoperable with other global ports, we often get called.
59 Boating technology has come an especially long way. It cannot replace the judgment or
60 experience of captains, but it can free them up to do other things in the wheelhouse. For example,
61 modern autopilots do a great job of holding a steady course in light to medium conditions with
62 minimal oversight or helm movements. Autopilots are good in that they do not get tired or
63 distracted like human pilots or ship captains do. Essentially, autopilots have an infinite attention
64 span. They also are good at saving fuel and getting to the destination faster and more efficiently,
65 especially when combined with GPS. All autopilots include three main components: a compass, a
66 computer, and a drive unit, which is a motor or hydraulic pump that applies force to the boat rudder.
67 To set the autopilot, the vessel is simply put on the desired heading, the course is maintained for
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Portino/Portina Storm Expert
68 several seconds, and then the captain presses “Auto” and releases the helm. The autopilot locks
69 the course in memory and will respond with helm corrections to keep the boat on the chosen course.
70 However, there is one basic rule: if a captain has a hard time holding a course, the autopilot
71 will too. The limits of the autopilots can be reached and overwhelm the device if it is pushed too
72 hard or asked for things it was not designed to do. For example, in particularly bad weather or
73 when setting a particularly aggressive course or line of sail, autopilots have known failure rates.
74 Also, autopilots can be overwhelmed by changing water conditions, such as rip currents or other
75 extreme currents. This problem is especially true for river barges, because the barges have a
76 tremendous surface area at that length. That means barges can be pushed or pulled in different
77 directions at the same time because a strong current has a large surface area to create steering
78 pressure. Autopilot can also be impacted by the wind both on the boat itself as well as on barges
79 in the case of commercial riverboat transportation. So autopilot is not perfect, but it is a great tool
80 to make things a lot better and safer overall when used in the right conditions.
81 There are occasions where I would advise my clients not to use autopilot – like heavy traffic
82 (think about a Saturday in the summer with ski boats and innertubes), high winds, and sharp
83 meandering of the navigable waterway.
84 In this case, I have reviewed all of the reports and the witness statements and did an
85 examination of both the boat and the portion of the river in question. My overall opinion in this
86 matter is that Captain Dawson was not reckless and did not deviate from the standard of care
87 required in a captain of a boat on a navigable river.
88 It is understood the boat created a wake in the “slow, no-wake” zone that the CGIS put in
89 place earlier that afternoon. The no-wake zone was overly cautious and unnecessary in light of
90 the conditions that day. Regardless, however, there can be any number of reasons why a boat might
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Portino/Portina Storm Expert
91 temporarily deviate from a posted no-wake zone. For example, a boat may need to temporarily and
92 quickly accelerate in order to avoid debris in the water or another boat. Also, boaters going
93 downstream, with a current, need to go faster than boaters traveling upstream, to maintain control.
94 People may not realize it, but a no-wake zone simply means moving at the slowest speed possible
95 while still maintaining steerage. As can be imagined, the larger the vessel, the harder it is to
96 maintain steerage. Again, double that for a boat pushing a massive line of barges. In my experience,
97 trying to steer a full load so slowly that it would not leave a wake would actually be more dangerous
98 than steering with one. The power that generates a wake is also the power that gives the helm
99 control. Think of a race car: better control accelerating through the turn.
100 Although it was obviously a tragic incident, I know from my experience that situations like
101 this do happen. Everyone knows a driver’s license is needed to get behind the wheel of a car.
102 Because boating licenses are not required to operate a pleasure craft, many operators do not receive
103 necessary training before getting out on the water, and do not understand how to be safe on the
104 water. My review of the materials leads me to the conclusion that both boats were under power
105 and that Catfish’s boat was required to give way to Captain Dawson’s vessel, because Captain
106 Dawson’s vessel was commercial.
107 Moreover, Captain Dawson had the Roberts in the commercial channel. Even the most
108 inexperienced boaters can see the giant “Commercial Channel – No Pleasure Craft” posted at
109 marina entrances or the large buoys floating to mark the channel.
110 Finally, although it is tempting to say that the fact of a collision means someone is at fault,
111 the reality is different. In reality, rivers like the Ohio are inherently dangerous, which is the
112 tradeoff made in opening a river to both commercial and pleasure craft. Yes, the commercial craft
113 have to take care, but when there are a dozen different craft zipping in, out, and around a
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Portino/Portina Storm Expert
114 commercial boat, it is impossible to account for every one of them, even if they were all properly
115 lit, using collision avoidance systems, and the like, which they rarely are.
116 Were there things that could have prevented this tragedy? Maybe. The autopilot system
117 was not the latest and greatest. It was sufficient to get the job done under normal circumstances,
118 but I would have advised investing in a transceiver-linked autopilot, especially for high wind or
119 high current nights. Those systems can accumulate dozens of boats’ worth of data, so the autopilot
120 can anticipate issues better. Captain Dawson’s boat was traveling at night in high water, in a log-
121 filled river, but none of that was something the autopilot could not handle if it was set 100%
122 accurately or completely modern. But every step away from those things leads to a decline in
123 function. At a certain point, the autopilot could make a significant enough mistake that the craft
124 would leave the commercial channels. Doing so can be catastrophic, either because the boat could
125 run aground or because of personal watercraft in the area. It is a recoverable mistake, but recovery
126 can take time.
127 To be clear, I cannot be certain that Smith even struck the Sun Dolphin. I have observed
128 the photos of the olive-green paint on the side of the Roberts and it looks to me like normal,
129 everyday maritime weatherproofing. There are a hundred barges on the Ohio and probably a
130 hundred more pleasure craft that use that paint, not to mention a half dozen or more docks. The
131 paint could have come from a low-speed “rub-by” with any of them, which happens every day and
132 is a big reason river boats get repainted every year or two! Most captains would not even log it,
133 unless there was some structural damage.
134 The one concern I have is that Captain Dawson did not stop after thinking the Roberts
135 struck a log. I would have stopped; better safe than sorry. Still, strikes happen every few weeks
136 or months on the Ohio River, especially during rainy seasons when logs roll into the river and get
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Portino/Portina Storm Expert
137 picked up by the current. Most captains stop for each, but there are some who do not. Stopping
138 is only required by Coast Guard rules if there is reason to believe a passenger craft was struck.
139 But Captain Dawson did not believe the Roberts had hit a passenger craft, and maybe it didn’t, so
140 there is no obligation under Coast Guard rules to stop. Best or common practice, yes, but not
141 required. I am not an attorney so I cannot speak to how it applies to Indiana law.
142 Still, I sympathize somewhat with Captain Dawson. I have piloted barges of the same size,
143 and it is difficult to see what is in front of the boat with all of those barges between the boat and
144 whatever is there. Sometimes the most updated information is not received. It happens. And then
145 a captain is left to her/his training, experience, and attention to detail.
146 Waterborne commerce is inherently dangerous, but it is no more dangerous than the other
147 options. Trains strike cars, cars pile up, but goods have to keep moving. At a certain point, the
148 captain’s instincts should be trusted. In my review of the materials, I came to the conclusion that
149 this was simply an unfortunate accident.
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Exhibit 4
U.S. Coast Guard Investigative Service
Louisville, Kentucky Regional Office
CASE NUMBER: 19-001263
Case Opened: 5/5/2019
Current Case Title: In re M/V Susan K. Roberts Collision
Report Title: Statement of Smith Dawson, 5/5/2019
Report of Interview
Subject was interviewed by Director Neer and USCGIS Special Agent Melissa May on May 5, 2019, at 0115 hours in Mt. Vernon, Indiana. Subject was at Mt. Vernon PD for interview and debriefing, but was not in custody. No Miranda warnings given. No counsel requested. Salient portion of interview is as follows.
Subject was captain of M/V Susan K. Roberts on evening of May 4, 2019. Subject possesses USCG license (Master, 100+ Ton). License is active with no negative history of discipline (suspension, rescission, or warning). Roberts is Galveston class tug (150’ x 26’ x 27’). Registration is up-to-date. USCG and DOT records show plan filed for Roberts for evening of May 4, 2019, filed by Knob Hill Barge Co. (of which interviewee Smith Dawson is owner).
Subject reports taking over captaincy at Newburgh Dam & Lock on afternoon of 5/4/2019 at approx. 1700 hours. First mate was Obie Goode, who possessed a valid license. Subject reports being clear of mind and had not been drinking or taking prescription medication. Subject was aware of the No Wake restrictions posted at 1538 on 5/4/2019 by USCG Dir. Neer. Subject reports having noted the elevated water levels but was not concerned. Subject viewed No Wake restrictions as excessive and cited prior occasions of similar water levels without such restrictions.
Subject noted presence of high levels of recreational boater traffic and river debris on 5/4/2019. Subject wears glasses for reading, but does not require them to captain. (Agent’s Note: subject license was reviewed, contains no vision restrictions or requirements.)
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Subject was asked for Vessel Safety Check, reports no VSC was completed. Check of USCG records shows high level of VSC compliance during spot checks, so verbal warning was issued. Subject acknowledged warning and stated “Totally right. It has not happened before, and it will not happen again.”
Subject reports that Roberts was in full working order, refers to First Mate Obie Goode for specific readings from engines, etc. Subject reports uneventful transit. Subject reports that autopilot was used “a bit,” but never during critical portions. Subject reports autopilot fully functional, no mechanical issues with craft steering, navigation, or propulsion.
Subject relates not knowing there was any issue when hailed to shore by Mt. Vernon PD. Subject reports immediate compliance with MVPD order; MVPD log confirms. Subject reports nothing unusual on transit other than excessive pleasure boater traffic. (Agent’s Note: This is a common complaint of commercial captains in the Evansville area.) Subject reports no sign of collision with any other craft during transit. Small issue with drift due to speed. Subject admits may have put off “some” wake. Subject denies either wake or speed were significant, and denies collision.
Interview concluded at 0207 hours.
Agent’s Note: Subject was not present for interview of First Mate Goode, but was able to observe it occurring. After interview of Goode concluded, reporting agent observed Subject speaking with First Mate Obie Goode. Discussion appeared heated. Discussion with Obie Goode concluded approx. 0248 hours. Reporting agent observed Subject confer with third party identified as Jordan Bennett of Long Island, NY, following discussion with Obie Goode. Discussion with Jordan concluded approx. 0254 hours.
Supplemental Report:
Subject returned to interviewers, requesting to “supplement” interview record, at 0256. Subject reported that there was a single incident during the transit that Subject “forgot happened.” Subject reports that while passing Evansville area, Roberts struck a log or other debris. Subject emphasizes there was no suggestion by any crew or third party that what was struck was a vessel of any kind and that Subject would have stopped immediately had there been some.
DRAFTED: /s/ Special Agent Melissa May, from notes DATE: 5/9/2019
REVIEWED AND APPROVED: /s/ Neer, Ph.D., Director DATE: 5/10/2019
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Exhibit 5
U.S. Coast Guard Investigative Service
Louisville, Kentucky Regional Office
CASE NUMBER: 19-001263
Case Opened: 5/5/2019
Current Case Title: In re M/V Susan K. Roberts Collision
Report Title: Statement of Obie Goode, 5/5/2019
Report of Interview
Subject was interviewed by Director Neer and USCGIS Special Agent Melissa May on May 5, 2019, at 0220 hours in Mt. Vernon, Indiana. Subject was at Mt. Vernon PD for interview and debriefing, but was not in custody. No Miranda warnings given. No counsel requested. Salient portion of interview is as follows.
Subject was First Mate of M/V Susan K. Roberts on evening of May 4, 2019. Subject possesses a valid USCG license. License is active with no negative history of discipline (suspension, rescission, or warning). Roberts is Galveston class towboat (150’ x 26’ x 27’). Registration is up-to-date. USCG and DOT records show plan filed for Roberts for evening of May 4, 2019, filed by Knob Hill Barge Co.
Subject reports having spent early portion of voyage working below decks, principally in the engine room area. Subject reports that Capt. Smith Dawson was concerned about mechanical issue on board. Subject completed initial review of ship systems and found them functional. No issue was identified. Subject then went above deck, aft of center (center rear).
Subject reports hearing intermittent warnings and reports hearing that Capt. Dawson was navigating the oxbow bend in the Ohio River by sight. (Agent’s Note: Collision with the registered pleasure vessel owned by James Hunter, occurred in this region.)
Subject reports clear sound of object strike on starboard bow (right/shore-side front of ship) at or around nightfall. Subject reports offering to investigate. Subject identifies self as trained rescue diver. Subject notes that Roberts carries a “rescue” boat that can be used while in motion
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to inspect damage. Subject reports that Capt. Dawson said the rescue boat was not needed and that Capt. Dawson reported that deckhands observed no damage. Subject reports skepticism that deckhands could have clearly seen any damage in that lighting. Subject reports “rescue” boat has small spotlight in working order.
Subject reports that after collision, the Subject saw beer cans floating in Roberts’s wake. Interview concluded at 0231 hours.
DRAFTED: /s/ Special Agent Melissa May, from notes DATE: 5/9/2019
APPROVED: /s/ Neer, Ph.D., Director DATE: 5/10/2019
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Exhibit 6
U.S. Coast Guard Investigative Service
Louisville, Kentucky Regional Office
CASE NUMBER: 19-001263
Case Opened: 5/5/2019
Current Case Title: In re M/V Susan K. Roberts Collision
Report Title: Statement of Jordan Bennett, 5/5/2019
Report of Interview
Subject was interviewed by Director Neer and USCGIS Special Agent Melissa May on May 5, 2019, at 0243 hours in Mt. Vernon, Indiana. Subject was at Mt. Vernon PD for interview and debriefing, but was not in custody. No Miranda warnings given. Subject invoked right to counsel. Subject invoked right to remain silent. Subject invoked copyright in any story stemming from events. Subject demanded extradition to New York. Subject reminded that s/he was not in custody, was not a suspect in any crime, and was free to go. Subject declined to be interviewed further. Interview concluded at 0245 hours.
DRAFTED: /s/ Special Agent Melissa May, from notes DATE: 5/9/2019
APPROVED: /s/ Neer, Ph.D., Director DATE: 5/10/2019
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Exhibit 7
U.S. Coast Guard Investigative Service
Louisville, Kentucky Regional Office
CASE NUMBER: 19-001263
Case Opened: 5/5/2019
Current Case Title: In re M/V Susan K. Roberts Collision
Report Title: Statement of Noa/Noah Hitter, 5/4/2019
Report of Interview
Subject was interviewed by Evansville Police Department detective Steven David, badge no. 5718, who provided the following information to Special Agent Melissa May on 5/5/2019:
Subject was interviewed at 0350 hours while on observation status adjacent to the emergency room at Deaconess Midtown Hospital. Nurse advised that subject was well enough to be interviewed. (Agent’s Note: Subject was discharged on May 5, 2019, at 0537 hours.) Subject was not in custody. No Miranda warnings given.
Subject expressed limited recollection of incident. Subject was jug fishing at or near border to commercial channel near oxbow in Ohio River on afternoon/evening of 5/4/2019. Subject and boat owner (Agent’s Note: Hunter, J., d/o/b Dec. 11, 1989) were drinking, likely intoxicated. Subject reports that while trying to address a snagged line after dusk, Subject observed speedboat and barge-driving towboat behaving unsafely, generating significant wake. Subject reports fishing boat was knocked or buffeted by wake, likely struck by towboat. Craft sunk in proximity of the Dress Plaza. Subject spoke at length about decedent Hunter, J. and relationship. Subject pulled on life preserver; Hunter did not.
Subject cited for boating without proper floatation. Subject has no further recollection of identity of the towboat, but recalls it had a “mountain thing” logo and was driving barges.
(Agent’s Note: Knob Hill Barge Company logo pictures a mountain; no other identified shippers use similar logo.)
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(Agent’s Note: Per AIS data collected by Evansville Coast Guard Auxiliary Station – Evansville, KHBC towboat M/V Susan K. Roberts confirmed in area at time of incident. No other downriver carriers were operating a barge-push towboat within +/- 20 minutes of time of incident in that portion of river.)
Interview concluded at 0418 hours.
DRAFTED: /s/ Special Agent Melissa May, from notes DATE: 5/9/2019
APPROVED: /s/ Neer, Ph.D., Director DATE: 5/10/2019
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Exhibit 8
Slow, No Wake - What it Really Means Most boaters think Slow, No Wake means a boat must be going slow enough to not put out any wake behind the boat. This is not true. Read this information about Slow No Wake to find out what it really means. Slow, No Wake varies with boat model, waves, currents, or wind. Here in Evansville, No Wake zones are taken very seriously. That is because here in Evansville, there is a combination of commercial and pleasure boating traffic that can be extremely dangerous if the river conditions are problematic. When the river is swollen with rainwater or is high for some other reason, it can really affect steering, with a rapid current pushing boats off track. This effect is especially problematic for boats that are either very small or very large; small boats without large engines cannot fight the current as easily, and large boats – especially barges – have a substantial surface area that the current can push. This combination can lead to small boats being pushed into the path of barges!
It is essential that any boat underway – large or small – be able to steer in the current. To maintain an ability to steer can mean that a boat has some wake, even in a slow-no- wake zone. But wakes should be minimal, and the law requires that all boaters go as slowly as they can, while still maintaining steerage.
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Although the conditions will vary, if you need to go fast enough to produce a substantial wake in order to maintain steerage, you ought to consider waiting to traverse that area until conditions improve. This is particularly true if the “Slow, No Wake” warning is posted by the United States Coast Guard due to changes in the boating environment. The Coast Guard takes its responsibilities to issue these warnings very seriously, and it only issues them when there is a real danger to navigation, for only as long as there is a real danger to navigation. These warnings are temporary, often lasting only a few hours or a day or two, and you can be boating again safely as soon as they have been rescinded.
If you have to be boating during a time that steerage is challenging, you should use every means available to make your boating as safe as possible. There are several ways to make your boating safer: • Adding extra running lights. • Using a spotlight or other device to keep track of what is going on around you. • Using technical aids to navigation to assist you. Although there is no substitute for an experienced, attentive captain, modern piloting computers or autopilots can adjust for changes in conditions before boaters even recognize the danger. • For commercial vessels, sticking to the middle of the channel or well-known, familiar paths of commercial traffic. • For pleasure vessels, sticking close to shore and giving commercial vessels an extra wide berth.
We are all responsible for making Indiana’s rivers and lakes safer. And, working together, we can do it. If you cannot steer without a wake, consider heading in to shore right away. It is better to live to boat another day than it is to risk yourself or others boating in an unsafe environment!
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Exhibit 9
TEMPORARY SLOW, NO WAKE ZONE ESTABLISHED
To: Evansville-ALL, OhioRivCommercial-ALL; SNWZArchive; CommerceDC-Main; USCG-Signs-OhioRiv; USCG-AUX-Evans- ALL; From: USCG-Louisville Date: May 4, 2019 1538 hours
IMMEDIATE EFFECT
BE ADVISED THAT A SLOW, NO WAKE ZONE HAS BEEN DECLARED FOR ALL COMMERCIAL AND PLEASURE BOATING CRAFT FOR THE OHIO RIVER IN THE SECTION LISTED BELOW DUE TO HIGH WATER AND ELEVATED CURRENTS.
THE SLOW, NO WAKE ZONE IS EFFECTIVE IMMEDIATELY UNTIL CANCELLED. USCG WILL REVISIT THE NEED FOR THE SLOW, NO WAKE ZONE AT APPROX. 2330 hours MAY 4, 2019 OR EARLIER, IF CONDITIONS CHANGE.
THE SLOW, NO WAKE ZONE IS IN EFFECT FROM THE NEWBURGH LOCK & DAM TO MOUNT VERNON, INCLUDING NEWBURGH, EVANSVILLE, HENDERSON, DIAMOND ISLAND, AND THE MOUNT VERNON PIER AREA.
QUESTIONS OR CONCERNS REGARDING THE SLOW, NO WAKE ZONE SHOULD BE DIRECTED TO THE USCG-LOUISVILLE STATION.
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Exhibit 10
Automatic Identification System Transponder Log [Evansville 1]
Date: May 4, 2019 Time Range: 1930 – 2130 Hours
Time Passed Direction of Vessel Name Marker Travel
M/V CHARLES DUNLAP 1931 Downriver
M/V KAYLA O’BRIEN 1942 Downriver
M/V MICHAEL TRANOVICH 1956 Upriver
M/V JOSEPH O’CONNOR 2011 Downriver
M/V SUSAN K. ROBERTS 2032 Downriver
M/V MARILYN SMITH 2048 Upriver
M/V LILY LAWSON 2059 Upriver
M/V TIMOTHY KALGREEN 2114 Upriver
M/V KIMBERLY BERRY 2128 Downriver
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Exhibit 11
Indiana General Assembly Transcript of Testimony Indiana Senate Committee on Commerce & Economic Development Hearing on Ohio River Transportation Revision Act of 2016 Testimony of Smith Dawson – March 30, 2016
Thank you, Chairman Barnhart,
I come before you today on behalf of the real people of the river. I do not mean the folks on their little Ski-Doos, rocking around. I mean the people who understand the Ohio for what it is: a superhighway, the greatest line of commerce this state has. I know we all think of I-90, but a single barge can hold the freight of 40 tractor-trailers, and my company – Knob Hill Barge Company – has been moving ten or twelve barges a run, a dozen runs a day, for three generations. My daddy testified before this committee; my granddaddy testified before this committee. And I am here to tell you: the river has to change.
Maybe when power boats were a luxury, we could afford to have the Ohio open to so- called pleasure boaters. But today, they are a menace to commerce, lawsuits waiting to happen. When pushing a thousand linear feet of barge, there is just about nothing you can do to maneuver around pleasure boaters. And as the pleasure boaters increasingly violate the borders of the commercial channel, that means there are going to be deaths. Personal watercraft drivers are inexperienced – hell, sometimes I see the sales sticker still on the window glass! – and they do not understand the impossibility of turning a barge-boat to avoid a collision. Honestly, I cannot ask my captains to try. The chances you succeed in avoiding a collision are much lower than the likelihood you dump your cargo trying, and that not only costs businesses money, it could poison the Ohio.
Indiana is a land of beautiful lakes and pristine small rivers. I have nothing against pleasure boaters; they have to know their place.
That is why I am proud to support the complete ban on all non-commercial traffic on the Ohio River. If you want to drive a beautiful roadway with your arm around your special gal or guy, you go to a winding mountain path, not to I-70! The same principle applies here. I know there are folks saying that this bill will never pass, that trial lawyers are saying you cannot remove any liability for a commercial carrier that collides with pleasure boats. Well, I say this country was built on hard-
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working folk, and if you want to laze about on weekends fishing on a commercial superhighway, well, I guess you got what was coming to you. Indiana’s commercial carriers have schedules to keep, to keep the goods and services that are the lifeblood of this great state flowing. We are small businesses, the creators of Indiana jobs for Indiana citizens. As Adlai Stevenson once said, “All progress has resulted from people who took unpopular opinions.” You have to act to protect Indiana’s businesspeople from folks who just plumb do not belong on the Ohio. Thank you.
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Exhibit 13
Final Term Sheet
White Star Investments Vehicle XII, LLC (“White Star”) and Knob Hill Barge Co. (“KHBC”) hereby agree to the following core terms, to be reduced to a full contract at a time mutually convenient to the parties. Subject to the negotiation of more precise contractual terms, the following terms shall be binding on both parties: 1. White Star shall, within 45 days of the execution of the contract, deposit with the Old National Bank of Evansville, IN a sum of $100,000,000, to be held in escrow by that bank and deposited with KHBC upon closing of this arrangement. 2. Upon confirmation of this deposit, KHBC shall deposit with Old National Bank in Evansville, IN a total of 490 shares of Class A stock in KHBC, constituting 49% of the ownership of KHBC. 3. Upon confirmation of this deposit, KHBC shall cause its Board of Directors or Shareholders to take action such that, upon conclusion of the action, that Board shall be composed as follows: a. Five members shall be nominated by the majority owners, and shall be confirmed by all members; b. Three members shall be nominated by White Star, and shall be confirmed by all members; c. One member shall be independent and shall be an employee, director, or board member of Old National Bank of Evansville, Indiana. 4. Smith Dawson shall remain as President and CEO of KHBC. 5. All parties will continue to work to maximize the value of the business in the finest, long-standing traditions of KHBC and the Dawson family. 6. A Management and Direction Clause shall be inserted into the bylaws of KHBC and approved by shareholders such that the following is true: a. If either profits of KHBC, following full consideration of both revenue and costs, fall by 10% or more in any calendar year, or b. Should KHBC suffer significant financial penalties from its operations, for example due to maintenance issues, shipping delays, or other preventable operational failures, then c. KHBC shall cause its Board of Directors or Shareholders to take action such that, upon conclusion of the action, that Board shall be composed as follows: i. Three members shall be nominated by the majority owners, and shall be confirmed by all members; ii. Three members shall be nominated by White Star, and shall be confirmed by all members; iii. Three members shall be independent, one of whom shall be an employee, director, or board member of Old National Bank of
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Evansville, Indiana and the others of whom shall be chosen by the remaining members of the Board of Directors. d. If conditions (a) and (b) are met, the new Board of Directors shall select its own Chairperson and shall designate officers for the company at the regular annual meeting. e. A “significant” penalty shall be one that impacts materially on the company and shall generally be understood by the parties to mean a penalty from any contract or group of contracts with a single counter- party in excess of $100,000. 7. KHBC will not divest itself of any assets in excess of $100,000 in value or commit to any debt in excess of $500,000 between the date of execution of this Term Sheet and the execution of the final Agreement between the Parties. 8. The final Agreement between the parties shall close on or before September 30, 2019, which date is the close of the fiscal year for KHBC. 9. Each Party has been advised by counsel, and each signatory below represents that s/he has the authority to bind her/his respective entity.
Jordan Bennett______Smith Dawson______Jordan Bennett, Manager Smith Dawson, President and CEO White Star Investments Vehicle XII, LLC Knob Hill Barge Co. (“KHBC”)
Date: April 15, 2019
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