The Tragedy of the El Faro and the Spectacle of Lawyers that Followed…Posted 14 Oct 2015 by John Phillips
The Tragic Tale of the El Faro
The El Faro left Jacksonville, Florida for Puerto Rico on September 29, 2015. On Oct. 1, it apparently lost communication during Hurricane Joaquin. On Oct. 5, she was declared sunk and the Coast Guard suspended its search and rescue mission two days later. Thirty three crew members were lost.
Two questions seem to come up regularly- (1) what was the El Faro doing sailing towards a Category 4 hurricane and (2) why in a vessel dating back to the Ford administration? We don’t know why the ship left Jacksonville despite storm warnings, and we won’t know much of anything about what happened to her unless the voyage data recorder is recovered.
How the Jones Act Allegedly Hinders US Shipbuilding
There are two things to understand about the Jones Act to understand shipping in the United States. First of all, a ship bearing a U.S.-flag must be crewed by American citizens. Secondly, all vessels must be built in America in order to ship anything from state-to-state or state-to-territory in the US. Those “made in America” aspects of the law have lead to America’s ships being claimed as too old, according to experts.
For ship owners such as the Tote Company who owned the El Faro, the Jones Act regulations creates additional costs of 4 to 5 times more to build a ship at one of only three U.S. shipyards capable to so, an estimate of around $100 to $150 million dollars compared to $20 to $40 million elsewhere. Additionally, there is a backlog to even have such a vessel built, particularly because of pending U.S. government Navy contracts. As such, the American Bureau of Shipping is one of the few shipping societies worldwide that regularly approves ships 30 years old and older and an estimated 41% of our fleet is that age. The El Faro was about 40 years old.
Maritime Law and Victim Recovery- A Primer
Maritime wrongful death law is made up of three distinct areas. The first area is covered by the Jones Act, which creates a wrongful death action against a seaman’s employer when he is injured or killed through the negligence of his employer. The second area of maritime wrongful death law is covered by the Death on the High Seas Act (DOHSA). DOHSA applies to accidents causing death which occur more than three nautical miles from United States’ shores. Unlike the Jones Act, which applies only to a seaman’s employer, DOHSA applies to any party whose wrongful act, neglect, or default causes the decedent’s death on the high seas. By contract, only pecuniary damages are recoverable under DOHSA. In addition to Jones Act and DOHSA claims, there also exists the area of general maritime law wrongful death action. It is all very complicated and specialized.
An auto accident lawyer -much less a bankruptcy or DUI lawyer- has no business claiming to handle these claims. The experts are expensive. The courts are particular. Lawyers don’t “dabble” in maritime / admiralty work.
Jones Act- Victim’s Recovery Law Comparable to Workers Compensation
The Jones Act is also the law of the land as it relates to how victims make claims. In order for the Jones Act to apply, a victim must be a “seaman.” Only the seaman’s employer is subject to Jones Act liability. To be considered a seaman, one must:
- more or less permanently connected with a vessel or fleet of vessels,
- in navigation at the time of your accident,
- aboard the vessel to perform duties necessary to the operation of the vessel or a mission being carried out on the vessel.
We suspect all of the victims meet these rather simple requirements.
The Jones Act offers various benefits to injured maritime and offshore workers some have compared to workers compensation. The employee must prove that his or her employer was negligent under the Jones Act, which is different from workers comp in Florida. Further, claims filed under the Jones Act tend to provide comparatively larger settlements than workers compensation, which include:
- Lost wages
- Diminished earning capacity
- Medical bills
- Rehabilitation expenses
- Occupational therapy
- Permanent disability or impairment
- Pain and suffering
- Diminished quality of life
Death on the High Seas Act
The Death on the High Seas Act (DOHSA) is a second additional remedy, which allows family members of the deceased seaman to file for benefits against other applicable at fault parties. Except in limited circumstances, a suit under DOHSA may only be brought by the personal representative of the deceased person’s estate. Under DOHSA, the only people who are allowed to recover monetary damages are a spouse, the person’s children, parents and any one who relied on the deceased for financial support. Damages available under DOHSA include loss of financial support for dependents, loss of care nurture and guidance, loss of household services, pre-death medical expenses, and burial and funeral costs.
Jurisdiction for Suit
Generally, these cases are filed in federal court, as the “law of the sea” is federal law, not Florida law. There are judges who sit on admiralty cases who literally sometimes have an oar behind them. Some of the factors which determine jurisdiction are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) allegiance of the defendant ship owner; (5) the place where the contract of employment was made; (6) the inaccessibility of the foreign forum; and (7) the law of the forum.
Did the El Faro ship owner have “substantial and continuing contacts” with Florida? Tote is based out of Jacksonville and it regularly operated out of Jacksonville’s ports. However, Tote- Puerto Rico is based out of New Jersey. The captain of El Faro was Michael Davidson of Windham, Maine. The victim was based out of Jacksonville. The incident happened closer to Puerto Rico. There are a lot of factors. Typically, you see such cases in federal court, especially with admiralty jurisdiction.
Other Defenses – Contractual
The Seafarers International Union or other Unions likely collectively bargained terms by contract. It will decide some limitations, venues of lawsuits and a host of other matters we have not seen made public yet. They have specifically declined media requests to discuss benefits or provide a copy of their collective bargaining agreement at this stage. It may be very telling.
Other Defenses – The Limitation of Liability Act
General maritime law of the United States is unique and different than land based law. A prime example of this difference is the Limitation of Liability Act, 46 U.S.C. §§181 – 196 (“Limitation Act”). A vessel owner, pursuant to the Limitation Act, may be entitled to limit its liability after a maritime incident or casualty to the post casualty value of the vessel and the pending freight, except when the loss occurred due to its “privity or knowledge.” 46 U.S.C. App. §183(a). In other words, privity or knowledge will be found to exist where the acts of negligence or unseaworthiness that caused the casualty were known or should have been know by the vessel owner. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976), rehearing denied 532 F.2d 1375 (5th Cir. 1976).
A limitation of liability proceeding must be commenced within six (6) months after the vessel owner receives written notice of a claim that may exceed the post-casualty value of the vessel, plus pending freight. 46 U.S.C. App. §185; Fed.R.Civ.Supp. Rule F(1). First Coast News is even a few steps ahead of most of the lawyers in town. It’s a complicated area.
We have also been offended by attorneys soliciting these grieving families within days of the tragedy. People who lost loved ones find lawyers at their own speed, at their own time- if they even want one. Yet, we’ve seen recent articles about lawyers allegedly violating Florida Bar requirements by placing newspaper advertisements and now a courthouse press conference today by another lawyer, claiming he “is at war now.” Another out of state lawyer, who actually seemed to practice maritime law, stayed in a local hotel and posted his cell number on victim’s forums on Facebook to get business. Further, if you simply “google” “El Faro” or “Tote” or many similar terms, you will see google ads for at least two local law firms known for their sales pitch:
The “$100 Million Dollar Lawsuit”
It was announced today that one family has filed a “$100 Million Lawsuit” against Tote and its captain (who perished). Our prayers go to them and all of the families and this is not meant to be disrespectful.
However, you see this number thrown around when it is a high profile case- Hulk Hogan v. Gawker, for instance. It’s meaningless. All a lawyer is supposed to allege is the minimum to invoke the court’s jurisdiction of $15,000. Anything else is not only superfluous, but some courts have found it to be bordering on contemptuous. Willie Gary, the lawyer filing the suit on behalf of one family, was quoted as saying, “We are at war now.” We aren’t at war. We are grieving… or should be. It all is distasteful.
To make matters worse, Mr. Gary brought his own podium to the courthouse steps courthouse and promotes his Rolls Royce and private plane on his website and you see he does things with extravagance. Watch his video. It’s all just too much, too soon. It seems to work for him, but in the era where people hate lawyers, maybe being a little less boisterous at this time isn’t a bad thing. Maybe simply filing a Complaint without media fanfare is enough.
Making matters worse, Mr. Gary never mentions “$100 million” in his Complaint, which doesn’t even spell “wrongful death” correctly. He also fails to seek any remedies under the Jones Act or DOHSA. It’s a simple wrongful death complaint. It’s simply legally insufficient. You can view it here- Willie Gary’s Complaint.
The “$100 million” number not only solicits other families to join, but creates false hope. Maritime cases are such that these claims are more limited. We know of no 9-figure verdicts in the history of admiralty, largely because of laws which cap damages and limit claims like the Limitation of Liability Act. These actions are really a smear on the profession. John said the same on WJCT today.
Choosing a Lawyer
The Florida Bar has 64 Board Certified Admiralty Lawyers. That is the Bar’s Expert Standard and requires advanced education, testing, peer review and experience. You can review those lawyers here. We recommend you choose one who specializes in admiralty and maritime law, not one who wants to do it now because of the El Faro.
This is one of the worst tragedies in American seafaring history. Like the men and women who transport land cargo all over the country, this country doesn’t run without our merchant mariners.
Families don’t even have bodies to bury or probably even have death certificates issues yet and lawyers are lining up, bringing their own podiums to the courthouse for press conferences, staking out the newspapers and google ads and media is jumping to publicize them. Let’s honor our merchant mariners not through publicizing litigation. El Faro means lighthouse. We need some guidance from this incident and it isn’t going to come from the spectacle which has followed this tragedy.