Key Bridge litigation: Some witnesses fear criminal consequences ahead of trial

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Less than a month before the first civil trial over the Francis Scott Key Bridge collapse, attorneys for the shipowners are in a tight spot — witnesses are fearful of criminal consequences for their testimony, or for even coming to the U.S.

At a Tuesday pretrial conference, lawyers repeatedly noted problems related to the FBI‘s investigation of the collapse: Six-hour depositions in which crew members largely invoked the Fifth Amendment and witnesses fearful of traveling to the U.S. due to the risk of being hit with subpoenas or detention.

Those issues have now become a problem for the looming civil trial set to start June 1. U.S. District Judge James K. Bredar remarked Tuesday that Grace Ocean and Synergy Marine Group are “just in a bind.” Because witnesses are “terrified” of being subpoenaed or detained in the U.S., said Tom Belknap, one of the attorneys for the firms.

Although the Department of Justice settled its civil claims against the bridge owners, a criminal investigation has been ongoing since the collapse on March 26, 2024, that killed six. Less than a month after the Dali hit the bridge, the FBI boarded the cargo ship as part of its criminal probe. Several members of the Dali’s crew remain in Baltimore as part of a “security agreement” with federal authorities.

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Spokespeople for the FBI’s Baltimore field office declined to comment Tuesday.

Belknap, of Blank Rome LLP, said civil attorneys spent nearly three weeks in London to conduct depositions “not because we wanted to go to London” but because of certain witnesses’ fears of legal ramifications for traveling to the U.S.

Belknap and other lawyers for the shipowners have noted that seafarers, including those who were not a part of the Dali crew, have been issued grand jury subpoenas upon arrival in the U.S. and been required to stay in the country for months while waiting for authorities to schedule interviews.

His statements came amid a dispute in court over a newly identified witness who the claimants argued was identified too late and going to “to sit in substitute” for shipowner witnesses who were deposed but wouldn’t be called.

That dispute also followed arguments over eight witnesses — including seven Dali crewmembers — who invoked their Fifth Amendment right against self-incrimination in response to “the majority, if not virtually all, of substantive questions that were asked” during their civil depositions, lawyers for the claimants wrote it in a court filing.

Those witnesses include the cargo ships’ master, its chief engineer and several of his subordinates, as well as an electrician and an oiler — “basically the entire control room” of the Dali, said Kevin J. Mahoney, an attorney for some of the claimants.

Attorneys for the claimants wrote in unsealed court filings that they believe “some or all of these witnesses are precluded from leaving the United States until the completion of the criminal investigation into the circumstances surrounding” the bridge collapse.

The claimants sought to block those witnesses from being called but still want to use the crewmembers’ deposition transcripts “to make inferences” during the month-long bench trial about their pleading the Fifth Amendment, Mahoney said in court.

Although criminal juries are forbidden from drawing an inference of guilt based on a defendant invoking their right not to testify, parties in civil actions aren’t protected against such adverse inferences.

But Bredar, a former criminal attorney who was once Maryland’s federal public defender, seemed skeptical that he’d make such inferences, saying that he “has seen the Fifth Amendment invoked more times than one could possibly count.”

“I’m not a jury. I can’t help that I am who I am,” Bredar said, encouraging the claimants’ lawyers to “read the subtext.”

“Maybe I have a misperception of how that’s going to impact me, but I don’t think it’s going to pack much of a punch,” he said.

The trial next month will center on the shipowners’ efforts to limit their civil liability to the value of the ship and the remaining cargo on board after the collapse, estimated at $43.6 million. The Justice Department and the state of Maryland have both settled with the shipowners, though dozens of other claimants remain in the case.