LOCKPORT, N.Y. (WKBW) — It's been nearly a year since that deadly Lockport Cave Boat Tour accident, that killed Harshad Shah, hurting a number of others. Since then, we've learned there's little regulation of this kind of attraction.
We've also learned criminal charges will not be filed in this case.
That led the 7 News I-Team to file a formal request for all the evidence obtained in this case. We received a number of victims' statements, hundreds of pictures and a recording of police interviewing the attraction's owner.
SURVIVORS RECALL CHAOS UNDERGROUND
Page after page and line by line, survivors recall the chaos underground when the Lockport Cave Boat Tour capsized last June.
"...I thought I was swimming towards the light like I was going to die," Priscila Sepulveda told police.
"There was a lot of panic. People were yelling and screaming," Kristen Brolinski said. "People were stepping on me which was holding me under the water. I felt like I was getting the sh-- kicked out of me," she said.
"I was stuck under the boat and I was trying to get out but people kept pushing me down," said Kathleen Harrington-Mcdonell.
"Panic starts setting in as everyone is trying to grab whatever floats," said Nico Santangelo. He was part of the tour group of hospitality workers in Niagara County.
Santangelo was last to get on the boat and among the first out, after the boat flipped. He was sitting next to the tour guide, Brody George.
"I hear him go 'oh, no no no'...and when I tell you how instantaneous it was, it went from me feeling water on my ankle to me suddenly being underwater," Santangelo recalled. "It was less than a second for the entire boat to flip over."
Video, from the days after the accident, shows firefighters and first responders throwing all their weight into hoisting the overturned boat out of the water.
The video was obtained by the 7 News I-Team, as part of the evidence file, through a Freedom of Information Law request.
Divers were seen in the water, searching for evidence, as crews paddle through. They were looking at the walls that Santangelo said he was clinging to,
listening to cries for help.
"The entire time and I'll never forget it, was Harshad's wife calling his name," Santangelo said. "There was no one responding to her. She's calling out Harshad...Harshad is not calling back to her. It was gut wrenching."
Remembering Harshad Shah, the man who died in the Lockport Cave tour boat accident.
Harshad Shah never came up from under water. He was 65 years old and died at the scene. He was on the tour boat, as the owner of a hotel in Niagara Falls. His blue jacket and Michael Kors wallet were found by those investigating the accident.
Shah's wife and 27 others all made it out.
THE EVIDENCE FILE
Police, through an attorney hired by the City of Lockport, released pictures, video and audio recordings from the days after the accident.
In an audio recording of police, interviewing Tom Callahan, the attraction's owner, Callahan said he thinks the arm rests got stuck, causing the boat the flip.
INVESTIGATOR: What did you hear?
CALLAHAN: I thought I heard the boat hit the wall. That was my first thought. Then I heard splashing and that's when I knew something had happened.
INVESTIGATOR: Do you guys fill out waivers?
CALLAHAN: No
INVESTIGATOR: No waivers? No.
CALLAHAN: But between you and I, they're not really worth the paper work.
INVESTIGATOR: Did any one beside the engineer certify the boat like put a stamp on it?
CALLAHAN: No
INVESTIGATOR: No government agency, just the engineer?
CALLAHAN: The only one we report to is OSHA. The OSHA man was just here... He told me we have a perfect record. They don't see this as a problem at all, the way we do business. He was here last year... gave us a clean bill.
OSHA focuses on worker safety. The 7 News I-Team reached out to OSHA, asking for a list of dates — since 2019 — the agency visited the attraction.
We've discovered OSHA only showed up at the attraction on June 12, 2023. That was the same day of the deadly accident.
It was no coincidence. They showed up because of what happened.
In an email, a spokesperson said:
The visit was prompted by the incident of that day. OSHA’s Buffalo Area Office learned of the incident through local media. It was reported as a rescue in progress and the Area Director made the decision to dispatch an inspector to investigate the area of worker safety.
INVESTIGATOR: Do you guys have life vests on the boat?
CALLAHAN: We do not.
That's why OSHA fined the attraction $4,000, with Callaghan signing an agreement, because an "employee was exposed to drowning hazards while not wearing a personal flotation device." OSHA said they "did not provide personal protective equipment to be used when necessary whenever hazards...were encountered."
INVESTIGATOR: Do your boats get any inspection or anything like that, yearly inspections?
CALLAHAN: No.
INVESTIGATOR: Are you required to?
CALLAHAN: No.
WHERE IS THE ACCOUNTABILITY?
New York State Senate Minority Leader Rob Ortt represents Niagara County in Albany. He's put forward legislation, regulating "man-made mechanical boat attractions on man-made waterways," like the Lockport Cave Boat Tour, closing the loophole in oversight. Under this legislation, the attraction would have to answer to the Office of Parks, Recreation and Historical Preservation. That bill is in committee.
On Wednesday, though, the New York State Senate passed a similar bill — that Ortt co-sponsored — giving the state Office of Parks, Recreation and Historical Preservation oversight of these attractions.
I-Team Investigator Ed Drantch asked Ortt, if the state has any responsibility for having had no oversight.
"I think the answer is yes," Ortt said. "When something like this happens, I think there's enough blame or responsibility to go around. I'm a big fan of being responsible... doesn't mean it's always your fault, but you're responsible. When you're in charge, we have accountability -- or we should -- to the people of Lockport and the people of the state and this was clearly a gap."
Governor Hochul also put forward her own bill to close that loophole. She is confident something will change in Albany, as a result of this deadly accident. The governor said safety of these attractions cannot be compromised.
"I introduced it -- a bit unusual for a governor to introduce her own legislation, but it was important enough for me to make sure it gets done," Hochul said.
Callahan, the owner of the attraction, told police this boat replaced an older one, five or six years ago.
The video below was obtained by the 7 News I-Team. It shows crews working days after the deadly accident to lift the boat out of the water.
"There's flotation devices that go the length and the width and they're all attached to each other," Callahan told police. "It's a square box built around the flotation devices with a wooden floor so it sits above the water."
Police say they immediately noticed the boat's "boyance [sic] appeared to be off." One officer explained, "I barely shifted my weight and the boat rocked from side to side with ease," later finding "5 of the 7 pontoons had been compromised and there was water inside the pontoon..."
Investigators used yellow fiberglass stakes to make that determination.
Yet, charges are not being filed against anyone, including the owner.
"People need to be held accountable to the standard they're keeping their facilities," Santangelo said. "He needs to look into himself and see was he doing what needed to be done and that's not something that I can answer. That's not something anyone can answer, but really him."
The I-Team has reached out to Tom Callahan by email, requesting an interview. We never got a response.
The Niagara County District Attorney, the Lockport mayor and Lockport police would not speak with us, because of pending civil litigation.
The Lockport Cave Boat Tour remains closed today.