The El Faro Loss

by Nicholas Walsh, PA

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 people.

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, “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 deceased’s conscious pain and suffering 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, the sailor’s 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, three young children (perhaps one with special needs) and a wife 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, and/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 the 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.

Let’s apply these concepts to the El Faro. Many would say steaming into the dangerous semicircle of a developing hurricane is negligent. That’s for the experts, but clearly the lawyers for the crew are going to have, as we say, something to talk about. As for Unseaworthiness, usually the easier remedy for the injured sailor to reach, here there is a problem of proof represented by the fact that the ship itself 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 told 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 point is with no ship and no witnesses proving the ship liable is not a slam dunk.

Force Majeure may play a role in the courtroom battle. Force majeure is the concept that some events, some “Acts of God”, are so overwhelming, and so unable to be anticipated or protected against, as to excuse error by mere humans. The concept has more to do with breaches of contract than with injury cases. I don’t expect any force majeure defense to get traction, because the El Faro hurricane was forecasted, if its precise strength and track may not have been.

A defense that will surely be raised, and that will almost certainly play an important role in the resolution of these claims, is Limitation of Liability. Under the Limitation of Liability Act, a shipowner may be able to limit personal injury claims, including death claims, to the post-casualty value of the ship (plus, in cases such as the El Faro disaster, some additional monies reflecting the ship’s gross tonnage). Just to make clear, that means if a ship injures ten sailors badly, and the ship is worth $100,000, each sailor might get just $10,000. The owner can limit liability only when it can show that it had no knowledge (privity) of the condition that led to the sinking, so if, for example, the owner was also the captain an action to limit liability would likely fail. There are many other ways to show privity as well.

There is a lot of law and lot of procedure surrounding limitation of liability, and the courts are in general not favorably disposed to actions to limit liability, but the El Faro claimants may expect to face this additional hurdle.

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’s what I expect to see here.

But still – those poor people.

Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.