CNN —
A federal grand jury indicted a former California boat captain Tuesday on a misconduct charge related to a fire that tore through his vessel on Labor Day 2019, killing 34 people, prosecutors said.
Jerry Nehl Boylan, 68, was charged with one count of misconduct or neglect of a ship officer, the US Attorney’s Office in the Central District of California said in a news release.
The charge stems from a blaze that broke out on the Conception, a 75-foot dive boat, in the middle of the night on September 2, 2019, as it was anchored near Santa Cruz Island in California’s famed Channel Islands.
Five crew members, including Boylan, were able to escape the burning vessel. But 33 passengers and one crew member who had been sleeping below deck died. The torched the vessel was on the last day of a three-day dive trip.
Tuesday’s indictment comes after a federal judge dismissed a manslaughter charge against Boylan last month, saying the charges failed to allege gross negligence, according to court documents.
The new indictment was filed to clearly allege gross negligence, prosecutors said.
Prosecutors accuse Boylan of “a series of failures and the abandoning of his ship, which constituted ‘misconduct, gross negligence, and inattention to his duties’ and led to the deaths of 34 victims,” according to the news release on the new indictment.
The indictment accuses Boylan of failing to have a night watch or roving patrol, failing to conduct sufficient fire drills and crew training and failing to provide firefighting instructions or directions to the crew after the fire started, according to the news release.
CNN has reached out to Boylan’s attorneys for comment. He’s expected to be arraigned “in the coming weeks,” according to the release.
If convicted, Boylan could face up to 10 years in prison.
All of the 34 victims died of smoke inhalation and suffered burns after losing consciousness, officials said.
The deadly fire may have been caused by cell phones and batteries left charging overnight, federal safety regulators said, adding the tragedy could have been prevented by a night watchman.
The National Transportation Safety Board faulted the boat’s operator for not requiring a crew member to patrol the craft as an overnight watchman, as mandated by the boat’s license and Coast Guard regulations.
“Had a crew member been awake, and patrolling the 75-foot-long Conception on the morning of the fire, it is likely that he or she would likely have discovered the fire at an early stage allowing time to fight the fire and give warning to passengers and crew to evacuate,” said Andrew Ehlers, who oversaw one portion of the investigation.
Attorney Douglas Schwartz previously said in a statement on behalf of the boat’s owner, Truth Aquatics, that a crew member had checked the area where the fire was believed to have been concentrated soon before it ignited; he did not point to any evidence the crew member had remained awake.