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The company that owns El Faro files legal action that could block lawsuits by families of crew members

Such legal maneuvering is "not a surprise for this industry," says a maritime lawyer

The ship disappeared a month ago with 33 people aboard

CNN  — 

The U.S. Navy and the National Transportation Safety Board confirmed Monday that wreckage discovered at the bottom of the ocean over the weekend was indeed that of the American cargo ship El Faro. But as families of the lost crew hold out hope they’ll learn their loved ones’ fates, they also learned the ship’s owner aims to block their lawsuits, saying it’s not to blame.

Just before federal officials announced over the weekend that the U.S. Navy would send a special submersible to search the ocean floor, lawyers for TOTE Maritime, which owns El Faro, filed a complaint in the U.S. District Court in Florida saying it did everything in its power to ensure the ship was safe and thus should bear no financial liability in regard to the families’ claims.

One maritime lawyer said the move was “highly insensitive to the families” of the sunken ship’s crew.

The company’s complaint says it “exercised due diligence” to make sure the 40-year-old vessel was seaworthy and well-equipped for its September 29 trip from Jacksonville, Florida, to San Juan, Puerto Rico, and should thus 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.”

El Faro disappeared October 1 some 30 miles off the coast of the Bahamas, as Hurricane Joaquin raged in the region. The massive ship vanished with 33 crew members on board. In the month since, the remains of one unidentified body and several pieces of debris are all that has been recovered.

Athlete, big brother, father-to-be among ship’s crew

The Navy said Saturday it has zeroed in on the wreckage of a cargo ship in some 15,000 feet of water, and it’s believed to be El Faro.

Families of four crew members have already filed lawsuits against TOTE on the grounds that El Faro had a shoddy maintenance history and was reckless for knowingly sailing toward a hurricane.

But TOTE’s court action Friday would prevent any other families from doing the same until a judge rules on the complaint, according to Kurt Arnold, an attorney representing the family of one of those four crew members.

“It’s aggressive because it happened so fast,” Arnold, who is based in Houston, said of the ship owner’s legal action. “(TOTE) is coming out early, while the families (are) still grieving. … They only called the search off for (crew members) three weeks ago.”

Daniel Rose, a maritime attorney not involved in any litigation pertaining to El Faro, agreed, telling CNN the maneuver came “too soon,” and called it “highly insensitive to the families.”

“The wreckage hadn’t even been identified, let alone retrieved,” said Rose. “TOTE had six months to file a limitation action. They should have waited to see if the wreckage would be found, which appears likely, and loved ones retrieved, rather than slapping the families with a lawsuit.”

Why was the ship so close to Hurricane Joaquin?

At the same time, said Rose, TOTE’s action was to be expected. “Unfortunately, (it is) not a surprise for this industry.”

TOTE sent a statement to CNN that said, “The company will not discuss individual legal actions, out of respect for the legal process. Our focus remains on support and care for the families and their loved ones.”


In response to TOTE’s action, attorneys representing five of the crew members lost at sea filed a counterclaim on Monday.

“We will seek to hold the ship owners responsible for every single penny that they owe to these families,” attorney Michael Winkleman told reporters.

His suit states that El Faro was overdue for repair work and overloaded with cargo. It claims the ship owners knew about, considered, but ultimately ignored dangerous weather conditions.

“We expect this to be a long fight and we intend to fight this as long as it takes,” said Winkleman. “This is a tragedy that could have been and should have been prevented.”

Blame the captain?

Both Arnold and Scott Wagner, a lawyer representing the family of El Faro crew member Jackie Jones Jr., said it appears TOTE is not only seeking to avoid blame, but angling to place any that may come its way squarely on the captain of the ship, Michael Davidson.

“They are without question making a calculated move to shove this off to the captain,” said Wagner, who added that the filing opens the possibility of suits against Davidson’s estate.

Arnold agreed, pointing to carefully worded language in TOTE’s suit that spells out how everything was up to par on the company’s end before El Faro left the port of Jacksonville on September 29 – including the ship’s plan to avoid Joaquin, then a tropical storm, which was churning in the Atlantic but was forecast to turn into a hurricane. If any decisions made after departure led to its sinking, the ship’s owners argue, “such fault was occasioned and occurred without … knowledge of (TOTE).”

TOTE points to a change of course ordered by the captain once the ship was at sea. “After departure and during the voyage, (Davidson) altered the planned course for S.S. EL FARO to account for the hurricane’s track.”

But Wagner isn’t buying it. He said TOTE was intimately involved in and responsible for any and all decisions made at sea. It didn’t matter that the decision was made after departure.

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“They are acting like they didn’t know what was happening, (but) there isn’t a damn thing the crew can do without the owners telling them what to do,” he said. “Nowadays the technology is so good these owners are on the bridge with the captain every step of the way. They are virtually on the ship, so for TOTE to file limited liability and say they didn’t know what was happening, that is wrong,” he said.

Rose, a partner at New York law firm Kreindler & Kreindler, said, “It doesn’t do TOTE any good to blame the captain since his acts or omissions will likely be imputed to them regardless,” and characterized shifting blame to the captain as “more posturing than prudent legal strategy.”

“First, the captain, individually, is obviously not a realistic source of recovery for the families,” Rose said. “Second, the only reason to assert allegations against the captain is to impute his acts or omissions to TOTE, but it still has to be done in a way to defeat the limitation. Simply suing the captain does not accomplish that.”

TOTE hopes ‘arcane’ law limits its liability

But even after making its case that it should not be held responsible, TOTE nevertheless hedged in its filing, citing what Arnold called an “arcane” maritime law from the 19th century to limit how much the company might have to pay out.

“(If TOTE) shall be judged liable … such liability be limited to the value of (TOTE’s) interest in the El Faro including her pending freight at the end of the voyage, and $420 per gross registered ton fund for death claimants,” the company said in its complaint.

But, Arnold said, that’s not exactly a magnanimous gesture, because at the end of the voyage TOTE’s interest in the 737-foot container ship was $0, since it was lost at sea. That leaves only the $420 per gross registered ton of pending freight – a number that comes from the 19th century, according to Arnold – that would be eligible for death claimants to go after. With the registered tons El Faro was hauling on its final voyage, that amount comes out to about $15.3 million, or about $464,000 for each of the 33 lives lost.

Arnold said the legal maneuver, which he called “an offensive tool for defendants,” stands in direct contrast to the statements made publicly by TOTE.

“They didn’t have to file a limitation action,” said Arnold, who represented several families who sued BP and Transocean in the Deepwater Horizon disaster in 2010. “They say one thing to the press how their hearts and minds are with the families. Meanwhile they have their lawyers in federal court trying to get a judge to limit damages.”

In its statement to CNN, TOTE acknowledged the suit, but said it remains focused on “providing care and support” to the families of crew members.

“We confirm that families have been contacted regarding compensation,” continued TOTE’s statement. “We do understand that in these difficult and tragic circumstances, a number of families may have pressing financial burdens and we want to ensure that we are there to help immediately. All details of these discussions are, of course, confidential among the parties as they should be. Our efforts remain focused on providing care and support and this step is a step for those who may choose it.”

CNN’s Yasmin Khorram contributed to this report.