El Faro attorney files motion to deny limitation of liability

TOTE Maritime has 14 days to respond to the motion to dismiss a request for exoneration or limitation of liability in the sinking of the ill-fated cargo ship, which sank in Hurricane Joaquin killing 33 seafarers.    An attorney representing families of the seafarers who perished in the sinking of the ill-fated cargo ship El Faro has filed a motion to deny TOTE Maritime Puerto Rico exoneration or limitation of liability in the incident.
   The El Faro sank en route from Jacksonville, Fla. to San Juan, Puerto Rico on Oct. 1 when the vessel sailed into the path of Hurricane Joaquin. Its 28-member crew and five additional seafarers on board to carry out repairs and upgrades on arrival in Puerto Rico were killed in the wreck, the largest U.S. maritime disaster in decades.
   TOTE and affiliated companies, the owners of the container and roll-on/roll-off cargo ship, filed a request in U.S. District Court in Florida to be exonerated from liability, or limit it to $15.3 million, in early November. That filing seeks to take advantage of the Shipowners Limitation of Liability Act of 1851, a law that was enacted to help U.S. shipowners compete with companies based in other countries such as Great Britain, and allows shipowners to seek exoneration from or limit their liability in the event of a maritime accident.
   Attorney Stephen Pajcic, who represents two of the crew members’ families, however, argues in his motion the law is outdated and shouldn’t apply in the case of El Faro given the facts and information available.
   “They are relying on an 1851 [ruling], when maybe shipowners didn’t know what happened to the ship when it got out to the sea and maybe didn’t have any connection to the negligence, but here, we know for sure that the ship owners knew exactly what the plan was going to be, where the ship was going, exactly where it was at all times, where the hurricane was and where it was at all times,” Pajcic told reporters.
   “The shipowners are involved in this and as they admitted at the press conference but now they’re claiming differently in a federal court, but they have final responsibility,” he added.
   At question here is accountability. During a press conference that followed the termination of the U.S. Coast Guard’s search and rescue mission for the missing seafarers, TOTE executives claimed they would take responsibility for the incident and help the families in any way possible. The company has reportedly since presented the families with what it deems a reasonable offer, but none have accepted.
   In its request for exoneration or limitation of liability, TOTE said prior to the commencement of the El Faro’s final voyage and at all times, they exercised due diligence to supply the ship with “suitable engines, machinery, apparel, appliances, personnel, and other appropriate and necessary equipment, all in good order and condition and suitable for their intended operations.”
   They say the captain of the ship monitored Hurricane Joaquin and altered the course of the ship to account for the hurricane’s expected track.
   Pajcic disagreed with that assertion, saying, “The two (the El Faro and Hurricane Joaquin) were headed for each other always. The point here is this data was available to not just to the ship’s captain but to the ship’s owner, but in real time.”
   TOTE, which has declined to comment on the El Faro incident since the October press conference, has 14 days to respond to Pajcic’s motion to dismiss limitation of liability.