On Friday, October 30, 2015, TOTE Maritime (“TOTE”), owner of the El Faro, filed a limitation action in a U.S. District Court in Jacksonville, Florida, seeking exoneration from or a limitation of liability on all claims filed by the families of the crew members who died in service of the vessel. The El Faro was carrying 33 crew members when it tragically sunk amidst Hurricane Joaquin on a voyage from Jacksonville, FL to San Juan, Puerto Rico. In the court documents, TOTE maintains that the El Faro “was in all respects seaworthy and properly manned” and that the company bears no responsibility for its loss. The sinking of the El Faro was the worst cargo ship disaster involving a U.S. flagged ship in more than three decades.
The U.S. National Transportation and Safety Board (“NTSB”) believes that they have found the wreckage of the El Faro, and what it finds at the bottom of the ocean floor may have an impact on how this case proceeds in the courtroom. The Navy will use a remote-controlled vehicle to get a closer look at the wreckage, and possibly find a data recorder that could provide clues as to what happened on board. Following the accident, the NTSB conducted a review of the ship’s safety inspections and drills and found no obvious maintenance problems.
In order for TOTE Maritime to limit liability, it would have to show that it did not know, or could not have known that the vessel was unsafe or the captain was doing something unsafe. The families of the victims could defeat the limitation action by showing that TOTE had knowledge of an unseaworthy condition, or that TOTE knew or should have known of the negligent acts or omissions which lead to the sinking of the El Faro.
In its court filing, TOTE asked that, should it be judged liable, such liability be limited to the value of TOTE’s interest in the El Faro and its freight at the end of the voyage, and $420 per gross registered ton of pending freight for personal injury and death claimants. Since the vessel and its cargo was lost at sea, TOTE’s interest is $0, leaving only the $420 per ton of freight, or approximately $13 million, that would be eligible for the families of the crew members.
TOTE also asked the court for an injunction against the opening or prosecution of any legal actions taken against it over the loss of the vessel. If the limitation is granted, it could force all of the parties seeking liability claims to come together and negotiate individual settlements out of a pool of money determined by the court.
TOTE has confirmed that the families of the crew members have been contacted regarding compensation, and that the company is focused on “providing care and support” to the families.