This past Friday, as the owners of the El Faro, Sea Star Lines, d/b/a, TOTE Maritime Puerto Rico and Tote Services, Inc., were filing a lawsuit in the Federal Court in Jacksonville, Florida, to limit and possibly, eliminate, their liability in the sinking of the EL FARO and the death of 33 crew members, the US Navy was searching diligently for the EL FARO in hopes to discover answers for why the EL FARO sank.
WHAT DOES THIS MEAN FOR FAMILIES OF EL FARO CREW MEMBERS?
The filing of a Petition for Limitation of Liability means that even though the owners of the El FARO have millions dollars of insurance, they have invoked an arcane, insensitive maritime law which enables it to limit or eliminate their liability unless the Claimants, i.e., the families of the deceased crew members, prove that the Owner of the EL FARO had privity or knowledge of the negligent or unseaworthy condition of the vessel at the time it left its port. What it basically does is places a greater burden on the grieving families in proving liability and provides a mechanism for the owners to escape liability over the sinking of the EL FARO. The filing of the Petition for Limitation of Liability further prevents the families of the deceased crew members from filing any wrongful death lawsuits under maritime law over the loss of the loved ones as the Federal Court will issue an injunction restraining any further lawsuits from being commenced and will further freeze any lawsuits that have been filed.
With the Limitation of Liability being filed, all the parties, meaning anyone bringing a claim against the owner of the El FARO will be brought into the Federal Court and there will be a legal fight, possibly several years, over whether the Owner, Sea Star Lines, had privity or knowledge of the unseaworthy or negligent condition of the EL FARO at the time it commenced its voyage. It will be up to Judge Brian J. Davis, the judge assigned to this case, to decide this issue. If Judge Davis enters a finding that the Owners had privity or knowledge of the unseaworthy or negligent condition and that it was a cause of the sinking of the EL FARO, then the Petition for Limitation of Liability is denied, the Petition will then be dismissed and there will be an order dissolving the injunction. At this time, the families will be able to pursue their wrongful death claims under maritime law. If the Court exonerates the owners of the EL FARO, the family will receive nothing. If the Court grants limitation, the 33 families’ recovery will be limited to the amount of the Limitation fund proven a trial which at this time is about $15 million. The $15 million Limitation fund would have to be split between all the Claimants.
In this case, proving the owners had privity and knowledge of negligent and unseaworthy conditions will more than likely focus on several of the following issues:
- The decision to proceed with the forecasted storm and the route that was taken by the EL FARO.
- The engine and the causes of it failure during the voyage and the knowledge the owner had of the engine problems prior to leaving on the voyage. The history of repairs and maintenance performed on the engine.
- The stability of the vessel and ability of the El FARO based on design, weight and cargo, when compromised, i.e. listing 15 degrees or taking on water, whether it could sustain its stability and not sink. This is important since the vessel was found intact on the ocean floor which points to that the EL FARO sank due to massive flooding and/or lack of stability and not from the winds and sea causing the vessel’s hull to break.
- The structural integrity of the vessel. Did the leaks that prior crew members of the EL FARO have discussed exist and if so, how much water could accumulate from those leaks? Did these leaks have anything to do with the accumulation of water on the EL FARO and the sinking of the EL FARO?
- The scuttle that Capt. Davidson reported water coming through, was it broken beforehand? Were there problems with it prior to the EL FARO leaving on its voyage?
With the discovery of the EL FARO by the United States Navy on the bottom of the ocean floor, there will be a tremendous amount of information that the NTSB and Coast Guard will be able to obtain for investigation. Hopefully, the ROV will able to enter the EL FARO and enter the many different compartments of the vessel to examine and record the condition. The key will be whether the ROV will be able to recover the recorder on the vessel or any other information from the bridge on the vessel. However, due to statutes, much of the information obtained by the NTSB and USCG may not be able to be used by the families in defeating the Limitation of Liability and at times may be blocked from using it.
With the filing of the Limitation of Liability Proceeding, the sinking of the EL FARO has entered a new stage. The families are still grieving trying to go day by day with the unimaginable losses they have incurred and now if they don’t hire attorneys to fight this Petition for Limitation of Liability and file an Answer and Claim; they will be barred from bringing any claims in the future as a result of their loss.
The discovery of the El FARO on the ocean floor brings mixed blessings. It helps to provide answers to the family, perhaps some closure if bodies of the loved ones are found or if not, creates further questions and uncertainties. For many, if not all of the mariners who were lost on the EL FARO, they had a love of the sea that have been ingrained in them from childhood, family, friends, schooling or due to the inherent beauty or a respect for the power the sea. Since we have entered this legal and fact finding stage of the sinking of the EL FARO, it is important to remember those mariners and the families, who have lost loved ones and are struggling every day over their unimaginable loss.
Latti & Anderson LLP – Nationwide Maritime Attorneys