El Faro Loss Raises Serious Concerns

The El Faro, a Jacksonville-based cargo ship, sank on October 1, 2015 during Hurricane Joaquin off the coast of the Bahamas. There were 33 crew members on board, most from Jacksonville, Florida, but others were from Maine and Poland. The ship was en route from Jacksonville to Puerto Rico. All 33 crew members perished in the tragedy.

Some of our thoughts as we worked on the case:

On November 16th, the NTSB suspended its search for the El Faro’s data recorders. This is no doubt a setback for the investigation, and therefore the families, but it is not insurmountable. 

Any legal action will still focus on questions concerning why the 790-foot, single-screw ship set sail with a hurricane looming. Virtual real-time weather information available to the vessel owner, TOTE, and the Captain certainly would have given enough indication of the potential dangers of the severe storm. Family members of the crew on board are joined by maritime experts in questioning why the El Faro left port heading into what was then a growing tropical storm, even though other vessels were pulling into port to wait out Joaquin. Indeed, we have interviewed Captains who decided to go into port in southern Florida rather than transit northbound along the eastern seaboard even though Joaquin was not even forecast to track to the West.

The president of TOTE, the company that owns the El Faro, told reporters they felt the conditions were favorable and that the Captain “was very confident the ship was doing well, the crew was quite up to date.” The last contact with the ship was while Joaquin was considered a category 4 hurricane with winds in excess of 140 miles per hour and more than 40-foot seas.

The Coast Guard and the National Transportation Safety Board (NTSB) are continuing to conduct investigations.

The El Faro loss raises numerous serious safety concerns about how the voyage was conducted and what was the condition of the El Faro.

1. The decision-making process to undertake the voyage
2. The company’s knowledge of the weather conditions
3. Communications between the company and the El Faro
4. The influence of the company and scheduling pressures on the decision-making process
5. The maintenance and integrity of the El Faro including the conditions of the following:

• The engine and its component parts
• The ship’s hull, including waterproofing
  
• The life rafts
  
• The life raft lowering system 
  
• Survival equipment
  

6. Any third parties that were involved in the maintenance and seaworthiness of the El Faro and its engine or other critical equipment.

Even if the NTSB or Coast Guard don’t address these issues sufficiently, the legal action by the families can. Kreindler has often continued where NTSB and Coast Guard investigations have left off and have found additional, and very favorable, information for our clients which was used in prosecuting their claims in maritime lawsuits. 

Because the El Faro was lost at sea, unique maritime laws apply to any claims that may be made on behalf of crewmembers. These laws are not “run of the mill” negligence laws, such as those involved in automobile accidents. They are complicated and unique Federal maritime laws which require specialized maritime lawyers to prosecute.

The Jones Act: All the El Faro crew members are considered “seamen” under the Jones Act, which provides the primary legal avenue of recovery for the crew against the vessel’s owner, TOTE. The Jones Act allows for an action based on negligence by the owner for the “pecuniary value” of the loss which essentially covers lost earnings and lost earning capacity, past and future medical expenses, pain, suffering and mental anguish.

The Death on the High Seas Act (DOHSA): DOHSA may apply to certain crewmembers. Like the Jones Act, DOHSA is a “pecuniary loss” law. 

The General Maritime law may also apply to provide a supplemental recourse for recovery and provides for claims based on the unseaworthiness of the El Faro.

Third-parties, such as engine manufacturers and maintainers, may be liable to the crew members for their negligence. Those claims, importantly, may not be limited by the Jones Act and may provide a more generous avenue for compensation.

The complex legal nature of the case is already evident by TOTE’s filing of a Limitation action to try limit their liability to only $15,000,000, which is much less than the claims are worth. This is, unfortunately, a common practice among ship owners and can be a very challenging legal hurdle to overcome for the families. Fortunately, Kreindler has significant experience in taking on maritime owners who raise this defense and a proven track record of overcoming the Limitation of Liability action so that its clients can recover fully under the law without limitation.

Kreindler & Kreindler LLP has represented hundreds of seamen over its 60-year history of prosecuting maritime cases. Kreindler partner Dan Rose has successfully tried two recent maritime cases in Federal Court in Virginia and New York. Those cases were affirmed by the Federal Court of Appeals.

Kreindler & Kreindler LLP has offices in New York and Boston.

If you have any questions, please contact Kreindler partners Dan Rose at 212.973.3414 or email him at drose@kreindler.com or Anthony Tarricone at 617.424.9100 or through his email at atarricone@kreindler.com.