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The diver was struggling and the captain moved the boat away from him, court papers say

Rob Stewart was a well-known Canadian filmmaker and conservationist. He went missing after a deep dive off Key Largo on Jan. 31, 2017, and was found dead Feb. 3, 2017.
Rob Stewart was a well-known Canadian filmmaker and conservationist. He went missing after a deep dive off Key Largo on Jan. 31, 2017, and was found dead Feb. 3, 2017.

Court documents filed this week in the sprawling civil case surrounding the death of Toronto filmmaker Rob Stewart contain potentially explosive claims about how he disappeared off Islamorada, the manner and motive behind his body’s recovery three days later and why rescuers searched an area the size of Connecticut when it was more likely he sank like a stone than drifted off.

The documents, filed in U.S. Southern District Court Tuesday by the dive equipment manufacturer rEvo BVBA, accuse the scuba diving company that brought Stewart and his team to the Queen of Nassau wreck on Jan. 31, 2017, of driving its boat away from him when he became unresponsive three minutes after resurfacing from his third 220-foot dive that day. They should have sent someone in after him, the court papers allege.

The boat’s captain said in a statement that day to the Monroe County Sheriff’s Office that he was repositioning the vessel to bring a tag line to Stewart after he had become “incoherent.”

“I repositioned the boat to get the line to Rob immediately, at which time he disappeared from the surface,” David Wilkerson, captain of the Horizon Dive Adventures vessel Pisces that day told investigators. “This took approximately 10 seconds to reposition the boat.”

Christopher Lanza, attorney for rEvo, wrote in Tuesday’s filing that Horizon owner Dan Dawson, who was not on the Pisces that day, stated in a deposition taken May 14 that “nobody jumped into the water to save Stewart when the captain observed he became incoherent because neither of Horizon’s crew members were supposed to go into the water, and it was up to the passengers to decide if they wanted to voluntarily enter the water to save a drowning man.”

Horizon’s attorney, Donne E. Albert, said in an email Tuesday “the motion is replete with inaccuracies and misinformation. We will be filing a formal response.”

Stewart was diving as part of making a film documentary.

Lanza wrote that Stewart’s dive computer data shows that he “remained on the surface unattended for nearly three minutes, according to Wilkerson, just 10 feet behind the boat and in obvious distress — during which time Wilkerson decided to drive the boat away from Stewart. While Wilkerson was moving the boat, Stewart disappeared.”

Stewart, 37 when he died, was famous in Canada and among the international diving community for his Sharkwater documentaries about conservation.

He surfaced from a third dive that day around 5 p.m. after retrieving a grappling hook placed on the wreck so divers could follow a line down to the ship.

He emerged from the depths with his safety diver, Peter Sotis. Both men gave the “OK” signal and Sotis was brought on board first. Within 30 seconds, Sotis became incoherent and his wife Claudia, who is a doctor, and the Pisces mate administered oxygen to him, which brought him out of whatever medical condition he suffered.

Wilkerson said while this was going on, Stewart again gave an “OK” signal. But the mate then told Wilkerson that Stewart was not grabbing the tag line and Stewart was drifting farther away from the Pisces because the wind and current were going in opposite directions, Dawson said in his deposition.

The captain told Stewart’s friend and business partner, Brock Cahill, to “keep your eyes on Rob,” while he repositioned the vessel in what’s known as a “Williamson turn.” While the boat was turning, Cahill yelled, “Where did Rob go?” according to Dawson’s deposition. Cahill jumped in the water at one point, but could not find his friend.

What followed was a three-day, multi-agency air and sea search that covered more than 6,000 square miles. His body was found around 5 p.m. Feb. 3, 2017, about an hour after the Coast Guard announced it was calling off the search.

Both Stewart and Sotis were using closed circuit rebreather gear instead of conventional air tanks. When using regular scuba tanks, the diver’s exhaled gas floats off as bubbles. Rebreathers recirculate the gas in a closed loop. Oxygen is added to the mix, and the carbon dioxide is removed with chemical “scrubbers.”

Rebreathers enable divers to stay underwater longer and are popular with deep divers and filmmakers who don’t want to scare fish off with their bubbles. The rebreathers Stewart and Sotis used were manufactured by rEvo, which is based in Belgium.

WARNING - GRAPHIC VIDEO:

Canadian filmmaker Rob Stewart disappeared after a deep-water dive in the Florida Keys in 2017. His body was found with the help of a remotely operated underwater vehicle and was recovered by a team of divers.

Stewart’s estate sued Horizon, Sotis and Sotis’ company, Add Helium, LLC in March 2017. rEvo was not named in the suit, but Horizon filed a motion to limit its liability in the lawsuit in May 2017. Again, rEvo was not named in that motion, but in September 2017, Horizon’s attorney’s filed two documents stating “the manufacturer of the equipment used by the decedent, including but not limited to the manufacturer of the involved rebreather,” is an entity that may have contributed to Stewart’s death.

The filing this week is a motion to intervene in Horizon’s case for limited liability. This would allow the company to “rebut allegations that Stewart’s rebreather was responsible for causing his death,” Lanza wrote. “That the rebreather functioned properly has already been proven by the computer data downloaded from Stewart’s rebreather in July 2017 and an inspection of Stewart’s rebreather conducted by the U.S Navy’s Experimental Dive Unit in April 2017.”

Then Monroe County Medical Examiner Dr. Thomas Beaver concluded in his August 2017 autopsy that Stewart died of hypoxia, or lack of oxygen. But rEvo’s attorneys dispute that conclusion because Stewart’s dive computer data showed the rebreather “delivered a constant and safe flow of oxygen to Stewart before and during the two minutes and 45 seconds he was on the surface.”

Lanza states in this week’s filing that he “is keenly interested” in deposing two of the men who recovered Stewart’s body — Boca Raton attorney and forensic dive investigator Craig Jenni and his colleague Kell Levendorf. This is because it was originally reported by the Coast Guard, and subsequently the press, that the body was found by the Key Largo Volunteer Fire Department’s Dive Team.

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But, the only person involved in the recovery affiliated with the department was Rob Bleser, a dive shop owner who operated the unmanned submarine that located the body from the deck of the Pisces. The other divers were Dawson, a Horizon employee, and Jenni and Levendorf, who work for Horizon’s attorneys.

“At this time, Horizon and its cohorts were masquerading as the dive team from the Key Largo Volunteer Fire Department.,” Lanza wrote. “Horizon itself has admitted that its search for Stewart was undertaken at the direction of its legal counsel in anticipation of litigation.”

In the aftermath of the recovery, the department and the board that oversees its budget praised Bleser and the dive team. But after Stewart’s family filed its suit, the department’s attorney emphatically denied there was ever a KLVFD dive team. This came as a betrayal to Bleser, who conducted and coordinated several high profile, deep-water recoveries under the auspices of the department over the years, with no one from the department or board claiming otherwise.

Follow David Goodhue on Twitter @DavidGoodhue

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