El Faro will speak for itself — in time

There is a principle in the law called res ipsa loquitur, or “the thing speaks for itself.” In raw practical terms, it means that when something bad happens, somebody has to pay.

With good reason judges rarely rely on this principle, no matter how persuasively presented, and this same skepticism must apply when considering the few known facts surrounding the apparent loss of the El Faro.

First is the assumption, especially by non-mariners, that absent some negligence a vessel will not sink. This is not true. The sea is such a demanding mistress that no amount of preparation, skill, or expense can guarantee the successful outcome of any given voyage. Further, we as a civilization must accept that there will be the risk of casualty as a part of commerce, and we accept that the consuming public can’t or won’t bear the cost of meeting that risk at the highest level. So naval architects, marine surveyors, classification societies, and insurers are forced to find a balance between cost and benefit, and in that balance lies risk.

For example, and without knowing any specifics, news reports state that the El Faro was built in 1975. Further, at least one report has claimed that she was lengthened 90 feet at some point. Considering that the average service life of a vessel in a saltwater environment is about 20 years, a 40-year-old vessel is very, very old. Moreover, since a vessel is designed with an optimum beam for its length, adding length without adding beam — the only practical way to do it— gives a vessel characteristics not intended by the designers. There could be other stability issues relating to reports that the vessel started life as a roll on/roll off vessel and underwent a partial conversion for containers. However, there’s no point in speculating about any of that as the class records will tell all.

This is not to imply that the original designers, the designers of the modification, or the American Bureau of Shipping (ABS) are necessarily guilty of negligence. The vessel could well have been properly designed and built — after 40 years of sea service, that’s one case where res ipsa loquitur might well apply — and we may assume that her lengthening was done under ABS supervision. We may also assume that at the time of the casualty she had valid ABS certificates, and we must recognize that ABS, like all class societies, is forced by commercial necessity to accept some diminution of strength in vessel hulls as an inevitable consequence of aging.

More importantly, the fact of loss does not imply negligence on the part of the master or crew, or even of the vessel’s management. Again without commenting on the facts of the instant matter, which are unknown except through early news reports, a master may make a prudent decision to sail and the vessel may still be lost. He and the crew may navigate and maneuver the vessel as well as any mariner can, and she may still be lost. Unfortunately, unlike issues of vessel condition, allegations of master or crew negligence, even those cast unfairly in the heat of the moment, get the kind of headlines that later exculpation does not. So although investigators must do their work without delay, and must sometimes work from assumptions and predicates, journalists and commentators should reserve judgment until the facts emerge. And emerge they will.

In cases like this, the thing should never speak for itself.

The views and opinions expressed in this blog are the author’s and not necessarily those of WorkBoat.

About the author

Capt. Max Hardberger

Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.

Leave A Reply

© Diversified Communications. All rights reserved.