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Thursday, December 7, 2023
Courthouse News Service
Thursday, December 7, 2023 | Back issues
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Owners of Lost Cargo Ship Seek Liability Cap

FORT LAUDERDALE, Fla. (CN) - The owners of the El Faro, the cargo ship that presumably took 33 crewmembers to their deaths in Hurricane Joaquin, asked a federal court to set a $15.3 million liability cap on claims arising from the disaster.

The request filed by TOTE Maritime Puerto Rico and TOTE Services came as the shipping companies continue to try and corral the multiple claims that have been filed over the tragedy into federal court.

The TOTE group sought to deposit the sum into the court registry based partly on a "death claims fund of $420 per gross registered ton."

The TOTE group asked the court to "admonish" the victims' families to file their claims in the federal court in Jacksonville.

All 33 crewmembers are believed to have perished after the ship crossed paths with the strengthening hurricane on Oct. 1, while en route to Puerto Rico. The storm intensified through Oct. 3, and at its height produced 150-mile-per-hour winds.

Victims' families have filed wrongful death lawsuits in Duval and Broward county courts ,as well as in Florida federal court, blaming the poor navigation choice on the TOTE group and claiming the El Faro was a rundown ship unfit to weather such a strong storm.

Family members of five crew - Piotr Krause, Marcin Nita, Jan Podgorski, Andrzej Truszkowski and Rafal Zdobych - on Nov. 2 responded to the TOTE companies' exoneration request, with a slew of allegations.

The "dangerous weather patterns and conditions were known, considered and ultimately ignored" by the ship's operators prior to its departure from Jacksonville, the Krause pleading says.

"Specifically, before the El Faro left port in Jacksonville, Florida, Tropical Storm Joaquin was predicted to become a hurricane and a marine hurricane warning was issued by the National Hurricane Center's Advisory #8 at or about 5:00 PM on September, 29, 2015. This was over three hours before the El Faro left port," the pleading states.

The pleading claims Capt. Michael Davidson sent an email to TOTE "suggesting that he had a plan to try to outrun the approaching hurricane."

"Sailing at approximately 20 knots, near the top speed of the 40-year-old ship, Davidson took the shorter route east of the Bahamas towards the hurricane rather than the longer route close to the Florida coast that would have avoided the storm," the pleading states.

According to a Broward County lawsuit filed by the wife of lost crewman Anthony Shawn Thomas, the El Faro had a history of engine failure and mechanical issues.

"Further, immediately prior to leaving port [in Sept. 2015], the M/V El Faro was undergoing significant maintenance, repair and alteration to [its] boilers," the complaint states.

The TOTE group maintains that the ship "was in all respects seaworthy and properly manned, equipped and supplied with suitable engines, machinery, apparel, appliances, personnel and other appropriate and necessary equipment, all in good order and condition."

"The loss of the S.S. El Faro and her crew ... and cargo was not due to any fault, neglect or want of care," the TOTE companies claimed in the exoneration request.

According to the National Transportation Safety Board, an undersea wreckage believed to be the El Faro was located last week, nearly three miles deep, east of the Bahamas. The 790-foot ship "appears to be in an upright position and in one piece," the NTSB announced.

While it's unclear where the victim's families' wrongful death claims will be fielded, at the center of the jurisdictional battle stands a 2011 amendment to federal court removal statutes.

In an attempt to keep a wrongful death claim in circuit court, an attorney for crewmember Thomas's widow argued the TOTE group was improperly attempting to remove the case to the Jacksonville Federal Court based on shallow case precedent stemming from that 2011 amendment. "Defendants improperly removed Plaintiff's case on the reliance of Ryan v. Hercules Offshore, Inc. [in the Southern District of Texas] ... as this Court, as well as Ryan's author, have held such a basis is improper," attorney Michael Hamaway wrote in a motion to remand.

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