Collecting damages from the owner of the El Faro, the cargo ship lost last week in the Bahamas during Hurricane Joaquin, is going to be difficult but not impossible for the families of crew members, lawyers who practice maritime law in Maine said Wednesday.
The families of crew members, including four who lived in Maine, could sue El Faro owner TOTE Maritime under two separate federal laws, the Jones Act and the Death on the High Seas Act, said R. Terrance Duddy, a Portland lawyer who often represents plaintiffs in claims against shipowners.
“Seamen don’t fall under Maine’s workers’ compensation laws,” Duddy said. “It’s not like it is when a worker is killed on the job on land. They get compensation benefits automatically.
“Under the Jones Act, in order for an injured or deceased seaman or his beneficiaries to collect damages, a plaintiff must prove negligence on the part of an employer or because of the unseaworthy condition of the vessel,” he said. “In a death case, if there is no proof of negligence or an unseaworthiness condition, then there is no recovery [under the Jones Act].”
Duddy said if he were suing TOTE, he’d file claims under both laws but would have to do so within three years of the sinking of the El Faro.
TOTE Maritime, based in Princeton, New Jersey, and owned by Saltchuk, could limit the amount of damages it pays out under the Limited Liability Act, according to Camden lawyer William “Sandy” Welte, who most often defends shipowners.
“By filing in federal court under that act [within six months that a notice of claim is filed with the company], the owner of a ship may limit the value of the vessel and its freight as long as the owners of it were without privity or knowledge of what brought about the loss,” he said. “This is a defense to limit damages. Procedurally, it provides one place for anyone with a claim to file it [instead of having to sue separately in different states].”
Damages that could be awarded to the families of crew members are limited under maritime law, Duddy said.
“If they weren’t married and had no minor children, then the value of their claims are going to be limited to their pain and suffering prior to death plus funeral expenses,” the Portland lawyer said.
The family of married crew members also could collect the amount of money the crew member would have earned had the ship not gone down, Duddy said. Minor children could collect a portion of a parent’s earnings between the time of his or her death and their turning 18.
“If [a seaman] died in a car accident in Maine instead of at sea, a family member, including a parent, could collect up to $500,000 for loss of consortium,” he said.
One possible defense TOTE could use is that it is not liable for damages because Hurricane Joaquin was an act of God that could not be predicted.
“Hurricanes can be considered acts of God, but it is a very difficult defense to mount successfully,” Welte said. “It only comes into play if reasonable precautions would not have avoided casualties.”
Both lawyers said that why the ship lost power — something TOTE’s management has said never happened before — would be critical if wrongful death suits are filed and the cases go to trial.
“The U.S. Coast Guard’s report and the one for the [National Transportation Safety Board] will play big roles here in establishing the facts,” Duddy said.
In terms of the cargo, it should be insured for the value listed on the manifest, Duddy said. What most likely would happen is the insurance firm would sue TOTE to recover what it paid out.
“Under maritime law, that value can’t be more than the value of the vessel when it sank,” Duddy said. “That value appears to be zero.”
Because the El Faro appears to be 15,000 feet underwater and is 40 years old, it is highly unlikely it could be recovered and have value as salvage the way it would if it was a newer vessel and sank in much more shallow water.
Relatives, including spouses and parents of Maine crew members, who decide to sue TOTE, first would have to go to the probate court in the location which the crew member lived and file a petition to become the personal representative of the deceased. Probate judges most often accept letters sent by the U.S. Coast Guard stating their loved ones’ remains were not recovered as proof of death, Welte said. The court then issues a declaration of death, after which, a lawsuit can be filed.
A long court fight could be avoided if, once all the reports have been completed, TOTE offers just compensation to the families of the crew members, Duddy said. There were 33 crew members on board — 28 U.S. citizens and five Polish nationals who were members of a “riding gang” commonly hired to perform repairs and maintenance.
The first wrongful death lawsuit over the sinking of the ship could be filed as early as next month in federal court Florida, according to Edward Jazlowiecki of Forestville, Connecticut. Jazlowiecki said he represents the family of one of the crew members from Poland and planned to file a complaint against TOTE in about 30 days.
A search Thursday of the federal court’s electronic case filing system using the words “TOTE Maritime” did not find any lawsuits or request to limit damages in the U.S. or Puerto Rico, the U.S. territory where the ship was headed.