Why did the El Faro sink and what happens next?

El Faro sinking

Families of the El Faro Crew Face A December 21 Deadline to File All Claims

This case is unlike many other Jones Act and Death on the High Seas cases- instead of families having approximately 2 years to file their lawsuits, you are being forced to decide whether or not you are going to pursue a case by December 21, 2015. That deadline is in place because TOTE Maritime filed a Limitation of Liability pleading in Florida arguing that the sum total the families of the 33 victims of the El Faro are asking to be compensated for the loss of their loved ones be limited to the value of the vessel and its cargo. This is a 19th century loophole in the Jones Act that, if you have the right attorneys, can be defeated. The pleading argues that the company “exercised due diligence” to make sure the ship was seaworthy and so TOTE should be exonerated “from liability for any and all losses or damages sustained during the voyage… and from any and all claims for damages that have been or may hereafter be made.”

This is a strategic move made by the company - designed to confront the families of the victims and give you a deadline to file your suits as well as to try and convince people that they weren’t at fault in an effort to avoid having all 33 families file suits. If you don’t file your case by the December 21 deadline, you will be “forever barred” from bringing a suit against TOTE for your loss. 

What that means is that this is your only chance to hold TOTE accountable for your loss, and hold them accountable for their unsafe business practices.

Anyone who knows anything about the El Faro tragedy knows that the company’s argument that the ship was seaworthy and fit to sail can’t possibly stand up under scrutiny.

Holding TOTE accountable for the business practices that allowed a 40-year-old ship to sail into a hurricane resulting in the deaths of 33 people is just part of filing a lawsuit by the December 21st deadline. These lawsuits, if argued correctly, can do more than provide you with the compensation you deserve for your loss. They have the power to change safety laws, improve corporate emergency planning policies, and prevent accidents from happening in the future. Your lawsuit could mean that no other family has to go through the same anguish you’re suffering. 

Your lawsuit is personal - TOTE Maritime did nothing to prevent your loved one from having to sail into a hurricane and you have the legal right to hold them accountable for the loss of your loved one and the monetary losses you’ve incurred and will face in the future due to their death. 

Why Families Should Not Accept TOTE’s Limitation of Liability Settlement Offer

In TOTE’s limitation of liability argument, the company is trying to get the families of the victims to accept a $15 million settlement. The reality is that $15 mil divided by the families of 33 crew members is far too little to even be thought of as charitable. It comes down to $500,000 plus lost wages for each of the lost crewmembers. If you have more than one person - say a spouse, a parent, and at least one child - making the claim, it comes out to even less than that.

It is demeaning to the work and sweat of the 33 crewmembers who risked everything for the company. No settlement can bring back these 33 men and women, but lawsuits do have the power to force companies to change their safety rules to prevent another tragedy from happening to another crew and to prevent more families from grieving over senseless tragedy.

TOTE wants families to accept this quick payout because they know if families pursue lawsuits, the final settlements will most likely be exponentially larger than $15 million. They are using despicable tactics to avoid facing the consequences of their negligence. 

Facing down a massive company seems like an un-winnable fight. Seems is the operative word. Families of the El Faro crew have the law and the facts on their side and deserve their day in court. 

Is This TOTE's Final Offer?

Many people have asked if this offer is the only offer TOTE is going to give. It isn't. It is just a strategy. They want you to think it's all they're going to offer and make you go away before you demand accountability and fair compensation. They are the reason your loved one - your spouse, your child, your parent - won't ever walk through the door again. They know if you pursue a wrongful death case, they will have to pay you a fair and just amount.

What Would be A Fair Offer From TOTE?

Study after study has calculated the value of a human life. These studies all say that the average human life, in 2015 dollars, is worth about $9,000,000.00. That's a great deal higher than $500,000 plus lost wages. We can't promise anything about what your final settlement or verdict will amount to, but we are giving you the truth. Economist after economist has made these calculations and TOTE is aware of the value of a human life as well. TOTE's actions since October 1 have repeatedly reinforced the fact that they only care about their profit margin and their bottom line - not about the people who work for them, not about your loved ones. 

Who can File A Maritime Wrongful Death Case

Under the Death on the High Seas Act, if you are a spouse, a parent,  a child, or a dependent relative, you may pursue a wrongful death lawsuit against the company or companies you hold responsible for your loved one’s death. Depending on how you’re related to the deceased, you may be able to claim the following:

  • pre-death pain and suffering
  • loss of earnings
  • medical expenses
  • loss of future earnings
  • loss of inheritance
  • funeral expenses and more.

What's the Difference Between Applying for Death Benefits Versus Filing a Wrongful Death Suit?

Many, if not all, of the families of the El Faro crew, have received information from Seafarers' International Union and TOTE about obtaining death benefits. These benefits are completely separate from your wrongful death lawsuits. If you received a letter from TOTE saying you needed to hire an attorney to obtain a death certificate, a requirement for applying for death benefits, you need to know what it means and what to do.

TOTE is trying to distract you to prevent you from seeing the bottom line. They want you to focus on the death benefits and ignore your potential wrongful death suit against them. They're hoping you hire a lawyer for the death benefits, think you're covered for the wrongful death lawsuit, and miss the deadline to file your lawsuit. Why? Because the death certificate issue is a probate court issue and the wrongful death lawsuit is a civil case tried in a totally different court system.

Probate lawyers don't specialize in wrongful death cases, much less maritime wrongful death cases, and your probate court filings don't transfer into the wrongful death case. They are totally separate and require totally separate attorneys - one who specializes in probate law and one who specializes in maritime wrongful death cases. You probably need to hire two attorneys to fully obtain the compensation and justice you deserve. One for the probate case and one for the maritime wrongful death case. 

What Will Happen If You File Your Lawsuit Before the December 21st Deadline

In the time before the December 21, 2015, deadline, your attorneys will file your lawsuit and begin an independent investigation into the sinking of the El Faro. They will most likely work with the civil justice system to gain access to the ongoing NTSB investigation and research everything they can to determine in what ways TOTE Maritime was negligent. 

TOTE’s argument limiting their liability is resting on the idea that they did nothing wrong and that the El Faro was seaworthy. In order to successfully counter their argument and overturn the limitation of liability proceeding, your attorneys will need to prove both negligence and unseaworthiness.

These two prongs of the argument stem from the Jones Act, the federal worker’s compensation law that protects maritime workers. 

What if the Lawyer You Hired Isn't the Right Lawyer for Your Wrongful Death Case? What can you do?

Everyone has the right to hire an attorney as well as the right to fire that attorney if they turn out to be the wrong lawyer for your case. If it turns out they don't know anything about personal injury law, wrongful death law, maritime law, or the Jones Act, and you find a lawyer who does have the experience and the case results to properly handle your case, you have the right to fire them and hire the best attorney for your case. To find out how to fire your lawyer, contact us. With no obligation to hire us, we will walk you through what you need to do to fire your attorney and hire the right firm for your El Faro case. 

Was TOTE Maritime Negligent?

Proving negligence in a Jones Act lawsuit isn’t always cut and dry. While TOTE is arguing they did nothing wrong, there is a great deal of evidence to the contrary. We have many questions about the actual state of the El Faro:

Why was the El Faro sailing through a Category 4 hurricane?

Why was that decision made? This is not the 18th century or even the 20th century. Highly sophisticated weather forecasting information should have given the company plenty of advance warning of the situation. 

Why did the El Faro lose propulsion?

The El Faro’s final message stated it had lost propulsion, taken on water, and was listing 15 degrees. Some reports indicate that the intent was to steer away from the storm’s path. If these reports are accurate, the El Faro was a sitting duck, no matter its intended path, without propulsion the crew was in a very precarious position since the ship’s last recorded location put it at the heart of the storm. An investigation is needed to determine what caused the loss of propulsion. 

Was the ship undergoing engine retrofitting at sea?

Some reports indicate the ship was undergoing engine retrofitting while at sea. If that’s true, it seems to be particularly bad timing to retrofit engines - while at sea in the vicinity of harsh weather. Who made this decision?

Reports coming out of the El Faro incident indicate that there was a Polish "riding crew" aboard the vessel. What were they doing on the vessel, specifically? 

While rumors float around maritime message boards, the most important question is why was a riding crew doing work when the ship was entering into such a potentially dangerous situation? Could the work not wait until it returned to port? Could the work have been done before they left port? 

A riding crew typically does repair work in the form of welding. This is considered hot work and they can't work with closed hatches. If they were working as the storm overtook the El Faro, that would mean open hatches in high seas, dangerous winds, and rain. Why did TOTE Maritime allow a riding crew to board the vessel in Jacksonville, knowing the ship could run into a hurricane?

We want TOTE Maritime to address these questions and help give the public all the facts, including all of the facts about the company's role in this incident. 

Was the captain getting pressured from management or customers?

We’ve seen captains and crews experience intense pressure to get their jobs done quickly rather than safely or risk getting fired. 

Why did TOTE Maritime wait to receive a call from the Coast Guard notifying them that the El Faro was in distress?

Reports are showing that the ship’s EPIRB (Emergency Position-Indicating Radio Beacons) pinged once and the U.S. Coast Guard then notified the shipping company. If the El Faro’s EPIRBs were working properly, why hadn’t TOTE Maritime already contacted the Coast Guard? Was TOTE aware of the perilous situation in which the ship was in? 

one fact raises security questions. The Emergency Position Indication Radio Beacon, otherwise known as an EPIRB, on the vessel only pinged satellites once.

Insider sources with firsthand knowledge of the vessel's design and of the timeline of events leading up to the ship's disappearance say that the El Faro was equipped with one EPIRB located outside the bridge. While EPIRBs are designed to withstand tough conditions, the number of ways it could fail increases greatly in a category 4 hurricane.

Also, reports are coming out that the US Coast Guard notified TOTE Maritime that the El Faro was in distress after the EPIRB pinged. What is worrisome is that, despite knowing the ship was in distress, TOTE Maritime hadn't already notified the Coast Guard that the crew might be in danger? Why did TOTE sit on this knowledge and wait until they received a call from the Coast Guard?

The more we learn about this situation, the more troubling it becomes.

Maritime injury lawsuits address holes in safety rules all the time. The result in many Jones Act lawsuits is that companies fix the problems, and safety across the industry improves.

In our wrongful death lawsuit after Tropical Storm Nate caused the liftboat,Trinity II, to become disabled in the Bay of Campeche, aside from multiple safety failures on the company's part, the NTSB discovered the EPIRB had not been activated by the crew, which greatly delayed the time they were in the water, waiting to be rescued. The master of the Trinity IIreported to investigators that the conditions were so bad he was unable to reach the EPIRB. Due to the evidence the NTSB uncovered in their investigation of the Trinity II, Trinity changed their company policies to include an additional EPIRB on liftboats.

In light of what we've learned in cases like the Trinity II, we question whether TOTE's safety policies are adequate and if a 790 foot vessel should have more than one EPIRB. Perhaps the Coast Guard's EPIRB rules should be updated as well. It is becoming clear that in unforeseen emergency situations, having only one EPIRB is risky.

Did the El Farohave state of the art lifeboat technology? Or were the lifeboats outdated?

Another question that has arisen recently related to the sinking of the El Faro has to do with the lifeboats aboard the doomed ship. State-of-the-art safety technology calls for totally self-enclosed lifeboats. It looks like the lifeboats may have been at least one generation prior to what is considered state of the art.

The state of the art for current lifeboat technology calls for totally self-enclosed lifeboats. Video footage of the Coast Guard finding one of the lifeboats reveals the lifeboats to be at least one generation predating "state of the art."

Insiders with firsthand knowledge of the El Faro's lifeboats report that the lifeboats were more than twenty years old. There were two onboard with two liferafts in each. One lifeboat was powered manually while the other had a diesel engine. 

Seafarers deserve state of the art lifesaving technology. Anything else is totally unacceptable. 

Was this ship too old to sail?

Sure, there are plenty of ships as old as the El Faro sailing today. But is it safe to have a 40 year old ship still in service? And was the El Faro in particular safe and seaworthy?

How was the ship loaded?

Was it loaded properly? Was it top heavy? Did any of the cargo break loose or shift? Anything other than the exact standards by which cargo can be considered to be loaded properly in a ro-ro ship is dangerous and can increase the likelihood of a catastrophic event.

Was the El Faro Unseaworthy by Design?

TOTE Maritime is arguing that they followed all the rules and did nothing wrong. Just because everything looked OK on paper doesn’t mean the ship was actually seaworthy or that they should have allowed the ship to sail into a hurricane. The International Maritime Organization, the UN’s global maritime watchdog agency, has published a safety report on Ro-Ro ships, the category of ship that includes the El Faro, due to the high rate of catastrophes these ships suffer. 

The NTSB’s report on the sinking of the El Faro reveals that the ship encountered 10-12 foot waves on the day it sank and that the captain reported a breach in the hull, an open scuttle, and water in hold number 3. These problems were in addition to the vessel already having lost propulsion. 

The IMO’s report on ro-ro- ships sheds light on why these problems were so catastrophic to the El Faro’s chances of being able to weather the storm. The report reveals that ro-ro ships have suffered from catastrophic design flaws since they were first built in the 19th century. The report lists out 7 main problem areas that pose the biggest safety risks to ro-ro ships:

  1. Lack of internal bulkheads allows the vessels to take on water over a massive surface area of the vessel, creating a “free surface effect” that has capsized many ro-ro ships.
  2. Cargo access doors can become damaged or twisted, since many of them serve as ramps for vehicles. Since the doors are located at the bow, stern, or even along the hull, any amount of damage can allow for water to enter the vessel and cause the free surface effect.
  3. Stability on a ro-ro ship can become a rapid issue when cargo shifts or when there’s a sudden inrush  of water due to a breached hull or a watertight door failure. Ro-ro ships also have a large superstructure, compared to other ships, which means they’re more negatively affected by wind and bad weather. 
  4. Low freeboards increase the threat of a ro-ro ship capsizing, if a cargo shift causes the vessel to list and the freeboard door to go under the waterline, the ship is put at a greater risk for capsizing. 
  5. Cargo stowage and securing can cause problems. If cargo inside a shipping container or trailer is improperly secured, or cargo shifts, it can create a domino effect, potentially damaging the hull and the ship’s structure, increasing the list, and potentially spilling dangerous substances. 
  6. Life-saving appliances can endanger the crew since the sides of many ro-ros are so high. Launching a lifeboat becomes more dangerous the higher you are off the water, and if the ship is listing as well, it can be perilous to launch a lifeboat or raft, especially if it isn’t a state-of-the-art, enclosed lifeboat.
  7. The crew is a huge factor in ro-ro safety, since ro-ros are more sophisticated than your average ship and require very careful handling. Human error makes ro-ros very vulnerable. 

The IMO report continues to state that, of all total losses of ro-ro ships, 43% of the losses were due to shifting cargo and operational faults. 

Operational faults occur when the captain and crew don’t follow proper safety and operational procedures that endanger everyone on board. It may seem harmless at the time, but on a ship that is unseaworthy by design, even the smallest of mistakes can have grave consequences.

The NTSB’s update into the sinking of the El Faro gives weight to the idea that any - or all - of the IMO’s seven risk factors, especially when traveling into the heart of a category 4 hurricane. We will know more as the US Navy’s salvage operation continues its work.

What is Happening Now?

The Investigation

The US Coast Guard, the NTSB, the U.S. Navy, and other agencies of the federal government are investigation the situation thoroughly. While we trust them to investigate this situation thoroughly, we also know that much of their information will come from TOTE Maritime and its underwriters and lawyers. This can lead to a one-sided investigation. 

Without our lawsuit against Maersk, the true story of the pirate attack on the Maersk Alabama would have been swept under the rug and nothing would have changed. The crew of the El Faro needs a strong independent voice during the investigative process.

Whatever the investigation uncovers, the real question will be whether changes are made to avoid these sorts of disasters in the future. I could not have been more proud to represent the crew of the Maersk Alabama, particularly for standing up for their rights in the face of immense pressure and criticism and for their efforts in helping me change the way shipowners in East Africa protect the men and women that operate their ships in the region. I hope that the same thing happens here.

News Coverage And Media Interest

The El Faro incident will be a big news story for a while but like every major catastrophe, it will recede from the limelight as the media goes after the next big story. 

The shipping companies, their underwriters and insurers, and their lawyers know this, and they will seek to delay full payment until the pressure and publicity has receded, hoping they can pay less when there is less public scrutiny involved. This is precisely what occurred in the case of the Maersk Alabama pirate attack and in other high profile cases I have handled for merchant seamen and their families. 

Fortunately, my law firm was equipped from a public relations standpoint to tell the other side of the story, keep the plight of the crew in front of the media, and tell the real story - not the fictionalized Hollywood version. We didn’t let the real story get swept under the rug.

Changes In The Maritime Industry

I hope that this incident - like the Maersk Alabama pirate attack lawsuit my law firm brought on behalf of crewmembers of the on that ship - will force change in the industry. The crew of the Maersk Alabama, who I am happy to call not only clients but friends, stood up to powerful industry interests and withstood a massive Hollywood publicity machine. That took guts. They could have taken a cheap settlement and gone on with their lives.

The crew and I were criticized publicly by powerful interests seeking to intimidate us from forcing change in the industry, namely when it comes to protecting seafarers and arming them in pirate-infested waters. Obstacles were thrown in our way again and again, and the case drug on for far too long, largely due to dilatory legal tactics designed precisely to delay a public hearing.

Fortunately, even in the face of criticisms from powerful industry groups and their paid spokespeople, the crew stood strong and actually forced real change in the maritime industry, change which has helped protect the lives and health of countless seafarers since then and has had a real and positive impact.

The crew of the El Faro, their families, and seafarers in general deserve nothing less here.