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The El Faro Disaster Demonstrates Why the Limitation on Liability Act Should Be Repealed

On October 1, 2015, the El Faro sank near the Bahamas during Hurricane Joaquin. Thirty-three crewmembers perished. Investigations since the accident have raised questions over whether the vessel was seaworthy and why it would sail into the path of a category four hurricane. The vessel is known to have experienced engine failure before her disappearance.

Families of those lost in the disaster quickly faced a Limitation of Liability action by TOTE Maritime, the owner of the vessel. The Limitation of Liability Act was passed in 1851, designed to help the American merchant marine industry compete with British and European fleets. At that time, vessel owners would often spend months or years without the ability to monitor their vessel or crew. The Act allows vessel owners to file suit in federal court to limit their liability for personal injury or death to the value of the vessel or the gross tonnage of the vessel multiplied by $420. In cases where a ship such as the El Faro is lost at sea, the vessel will often have little or no value. In those situations, the overall liability of the vessel owner is based on the vessel’s weight.

In the case of the El Faro, TOTE Maritime filed a limitations action seeking to limit its total liability to slightly more than $15,300,000. It remains to be determined whether the limitations action will succeed. If lawyers representing the families of those lost in the accident are able to show that TOTE Maritime knew or should have known that the vessel was unseaworthy, then it is possible for the limitations action to be dissolved. If, however, TOTE Maritime is successful, then the company can rest assured that it will never have to pay significant damages for the lives of the seaman who were lost.

The historical justifications of the Limitation on Liability Act make little sense today. The U.S. shipping industry does not require extra protection to compete globally. Modern vessel owners have technology available to constantly monitor their vessels. Ship-to-shore communications, which were once slow, unreliable, and sometimes impossible, are now an integral part of the shipping industry. It is now easy, cost-effective, and industry standard for vessel owners to monitor their vessels on a daily basis. Any ship owner who fails monitor and track their ships should be penalized for failing to act reasonably.

Following the Deepwater Horizon disaster, many sought repeal or amendment of the Limitation on Liability Act. The sinking of the El Faro should refocus efforts to ensure that injured seaman and their families are protected and fully compensated when they are injured or killed.

Maritime injuries require lawyers with the skill, training, and experience to navigate complex state and federal laws. If you or a loved one has been involved in a maritime accident, contact the lawyers at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner today to schedule your free consultation.

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