Loss of the El Faro

October 20, 2015

The most poignant detail of the El Faro foundering was, to me, the bashed up lifeboat found floating. Lifeboats are strongly attached to their ships and are unlikely to break free even in very heavy weather, so it appears the crew tried to launch this lifeboat, in 130 knots of wind and mountainous seas. Those poor guys.

What remedies do the families have? This ship was U.S. flagged, so United States law applies. At the time of their deaths, the crew were all, it appears, legally seamen for purposes of the Jones Act and the general maritime law of Unseaworthiness. Possibly there was a guest or other non-seaman on board, although I have seen no report of such.

The Jones Act and Unseaworthiness provide the estate of each crewmember with a claim for the conscious pain and suffering of the deceased prior to his or death: in other words, for an amount of money as would pretend to compensate the deceased for the horror of the foundering and drowning. Such an award might be in the range of $300,000 to $1 million.

Where an El Faro sailor died with one or more dependents, in addition to the estate’s claim for the sailor’s conscious pain and suffering, under both the Jones Act and Unseaworthiness the dependents have their own separate claims for loss of support. The value of those claims would vary depending on factors such as the needs of the surviving dependent, the income of the deceased, and how much longer he or she would likely have worked. The award for the claims of a young, well-paid officer who died leaving, for example, a wife and three young children (perhaps one with special needs) could be very high indeed.

All of this supposes two factors: liability and the ability to pay. Let’s take these in order.

Liability means the El Faro foundered by reason of Unseaworthiness, as that term is used in maritime personal injury, or that the ship foundered through Jones Act negligence.

The Jones Act is federal law requiring the employer to provide a safe ship and allowing a sailor to sue if the owner is careless (negligent) in allowing an unsafe condition to hurt the sailor. If the El Faro sank because of even slight carelessness in either maintenance or operation, Jones Act negligence will apply.

Unseaworthiness: Under general maritime law a ship owner warrants (unconditionally promises) to the crew that the ship is reasonably fit for its intended use. The concept has nothing to do with negligence. A ship can be Unseaworthy by reason of a million things, including a bad hatch or a bad crewmember, that could have nothing to do with careless maintenance or operation.

Critically, it will be the burden of the plaintiff estate to prove, by a preponderance of the evidence, that the ship foundered by reason of either Jones Act negligence or Unseaworthiness. A problem for the El Faro claimants is that there are no eye witnesses to the disaster, and the ship itself may never be found, so there are going to be problems of proof. Getting past the burden of proof is going to be a challenge, probably not an insurmountable challenge, but a challenge.

Many would say steaming into the dangerous semicircle of a developing hurricane is negligent. That is for the experts, but clearly the lawyers for the crew are going to have, as we say, something to talk about, and my guess is that the expert testimony as to that hazard will allow the claimants to sustain their burden of proof on the Jones Act claims. As for Unseaworthiness, often the easier remedy for the injured sailor to reach, here there is again a problem of proof represented by the fact that the ship lies in 2,500 fathoms, and there are no surviving witnesses.

But what we do know is this: At 0700 on October 1, the captain of the El Faro radioed the shipping line that the main engine was down, the ship was listing at 15 degrees, and water was coming into the ship through a hatch that had popped open. Although conceivably these issues could be ascribed to causes that do not amount to Unseaworthiness, and (barely) conceivably these issues did not cause the ship to sink, I think that radio call makes the Unseaworthiness case. The popped hatch itself sounds like a classic unseaworthy condition, for no hatch is supposed to simply pop.

The claimants would then have the burden of showing that the popped hatch actually contributed to the foundering, again a challenge. It would be useful to know what hatch had popped, for there is a world of difference between a cargo hatch starting to carry away in a hurricane and a leaky door into the accommodation. Presumably the master would not have mentioned the hatch had it not been a matter of significance, a point not lost on this lawyer. The point is with no ship and no witnesses, proving the unseaworthy condition and proving the condition led to the loss is going to require careful work.

Force majeure may play a role in the courtroom battle. Force majeure is the concept that some events, some Acts of God, for example a tsunami, are so overwhelming, and so unable to be anticipated or protected against, as to excuse error by mere humans. I doubt any force majeure defense gets traction, because the El Faro hurricane was forecasted (even if its precise strength and track were not) and hurricanes are a well recognized hazard on that route at that time of year.

A defense that will surely be raised, and that may play an important role in the resolution of these claims, is Limitation of Liability. Under the Limitation of Liability Act, a shipowner can ask the court to limit personal injury claims, including death claims, to a sum equal to the gross tonnage of the ship times $420. El Faro was 31,515 gross tons, so this amount is about $13,236,000. Assuming there is insurance or owner resources sufficient to come up with $13.2 million, that sum, if the owner successfully limits liability, will have to be spread around to pay all the many claims stemming from this tragedy. It is not nearly enough.

Having said that, an owner can limit liability only if it can show that it had no knowledge of the condition that led to the sinking. Critically, what is known to the master of the ship is considered to be known to the owner as well. In the case of El Faro, if it can be shown that the master knew or should have known that it was a bad idea to take the route El Faro did with the storm brewing up, or if it can be shown that the master sailed with knowledge of a bad hatch or other condition amounting to Unseaworthiness, the action to limit liability would likely fail.

A final thought: The El Faro disaster was highly public, and highly public disasters tend to result in reasonable compensation for the claimants. At the end of the day, that is what I expect to see here.

But still, those poor guys.

 

 





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