Add Insult to Injury: TOTE Maritime’s Lawsuit Decision after El Faro Sinking

On September 29 of this year, many residents living along the East Coast of the United States and throughout the Caribbean were preparing for the potential impact of Hurricane Joaquin.  In Jacksonville, Florida, final preparations were being made for the departure of a 737-foot cargo ship, El Faro, bound for San Juan, Puerto Rico.  The 40 year-old cargo ship departed Jacksonville and steamed south on a collision course with the intensifying hurricane.   Aboard it were 33 people, including 28 American crew members. Conditions were reported to be seas of 30 feet with sustained winds of 74 miles per hour increasing to 121 miles per hour near the eye wall of Hurricane Joaquin when El Faro approached.  At 7 a.m., the captain of El Faro reported a maritime emergency detailing a breach in the hull and that the vessel was taking on water.  This was the last verbal communication from anyone aboard the ill-fated ship. The last communication was an electronic distress signal which placed the location of the vessel around 20 miles from the edge of the eye of the hurricane.  The ensuing search and location of both a debris field and a victim’s body confirmed what everyone feared: the El Faro was lost as were all aboard her.

Over the weekend, the United States Navy, utilizing a remotely controlled submersible operating almost three miles below the surface of the water, found what they suspected to be wreckage of El Faro on the ocean floor.  On Sunday, the families of the vessel’s crew waited for news on the positive identification of the El Faro wreckage and perhaps hoping for some insight into their loved ones’ fates.  What they likely did not know, however, is that lawyers for the corporation that owned El Faro, TOTE Maritime, sued in federal court seeking a judicial determination it is not legally responsible for the deaths of those aboard and presumed lost.  The defendants in the lawsuit filed by TOTE Maritime include the grieving family members of those lost at sea.

TOTE Maritime’s filing seeks two forms of relief.  First, TOTE argues that it, as the vessel owner, did everything it was supposed to do in making sure the vessel was seaworthy and well-equipped for its journey.  TOTE’S allegations in this regard seem contradicted by statements made by at least one former crew member describing the vessel as a “rust bucket” and the preliminary findings of the NTSB that documented the need for service to one of the vessel’s two boilers.  TOTE further argues that as a result, it cannot be held financially responsible for the captain’s decisions once the ship left port.

If TOTE is subsequently found to have some responsibility for this tragedy, it is also seeking the protection of an archaic law from 1851 known as the Limitation of Liability Act whereby the damages that can be awarded the family members of the El Faro crew are significantly reduced.   TOTE is seeking to limit its financial responsibility to the value of El Faro and her freight as of the end of the voyage plus $420 per gross registered ton of pending freight death claims fund.  TOTE’s filing admits the value of the vessel is zero as it was lost at sea.  TOTE argues that the gross registered ton and pending freight calculations result in a limitation of its financial responsibility , if any, of slightly more than $15,309,003.50 for the death of 33 people, a figure it itself acknowledges is “substantially less” than the losses that will be claimed.

TOTE’S filing on Friday has been widely panned as insensitive to the mourning family members who have not yet had a chance to see if their loved ones’ remains can be found and returned for burial.  If TOTE were going to try to deflect blame away from itself, at least it could have waited until the wreckage was identified.  There will be plenty of time for finger pointing later.