(KRON) — A Hayward couple has filed a $5 million lawsuit against a tourism company based in Maui after they were left behind on a snorkeling excursion in September of 2021, according to court documents obtained by KRON4.

Elizabeth Webster and Alexander Burckle, a married couple, filed the suit against Clark Enterprises, Inc. which also does business as Sail Maul and Paragon Sailing Chargers Maui, and several other individuals in U.S. District Court for the District of Hawaii on Feb. 21.

The documents allege that on Sept. 23, 2021 the couple was visiting Maui for their honeymoon celebrations when they bought tickets for the “Lanai Coast” snorkel tour as both Webster and Burckle are experienced snorklers.

The couple headed out with a group around 9 a.m., and by 10:50 a.m. they and other passengers were in the water, according to the court filing. After what the pair thought was an hour, they attempted to head back towards the vessel. However, the current they were up against kept pushing them farther from the boat.

After fighting the current for what they felt was about 30 minutes, they became concerned that they could not swim to safety, and the couple began signaling for distress towards the boat. Around 12:25 p.m., the in-water lifeguard believed they had corralled all passengers onto the boat, according to the court documents.

This is when a few key things seemed to go very wrong. The documents describe that another passenger notified the lifeguards there were still two more patrons in the water, but the lifeguard believed that Webster and Burckle were already back on the boat.

The crew conducted two head counts without checking a manifest list for accuracy, and they determined there were 42 people on board, according to the court filing. However, after the staff member completed a third head count, they believed there were 44 people on board. The vessel then took off and headed for the next destination around 12:30 p.m.

As Webster and Burckle watched as the vessel appeared farther and farther away, they estimated they were about half a mile from shore. The pair worried they would drown in the ocean conditions, which included 6-8 foot waves.

With the little energy they had left, the couple determined they needed to get to shore. About 30 minutes later the Webster and Burckle were able to reach the shore of the Old Club Lanai. In a stroke of good luck, a local couple saw the pair signaling for distress and offered their cell phone.

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When Webster got on the phone with the charter company, she alleges they did not yet realize the pair was missing. The staff member told the pair they would have to get back to the other side of the island from where they landed in order to be reunited with the excursion group. The local couple offered to drive the newlywed across the island.

Since then, an investigation into the incident by the U.S. Coast Guard determined that the vessel master was negligent “because he did not uphold the company safety procedures of ensuring a proper head count and verification of passengers was conducted prior to departing the snorkel site,” according to the filing.

The couple’s attorney shared a statement with KRON4 about the incident and the lawsuit:

“I would say that our clients are mentally scarred for life due to the incident, especially since the mental scarring took the place of what should have been great honeymoon memories, and they are lucky to not have drowned.  Being abandoned in the ocean is a primal fear , and they had that experience and fear for not only themselves, but their loved one too. 

It’s really hard to convey how scary it is unless you’ve had a near drowning yourself, even more so in Hawaiian waters because the currents and waves are strong and can change quickly. This lawsuit is about making sure that the operators of these kinds of activities make safety the number one priority at all times, especially since people are coming from all over the world to enjoy Hawaii and may or may not be good swimmers. 

It’s on the vessel operators to be on their A game at all times, and leaving customers behind is the ultimate failure in this kind of situation, especially since it could have easily been avoided.” – Jared Washkowitz

The company has since changed their protocol when it comes to roll call on board vessels. According to the court filing, the staff now makes vocal contact with each passenger before departing a site. A request for comment sent to Sail Maui was not immediately returned.