Was the El Faro unseaworthy?

Two developments in the El Faro sinking only a few months apart on the calendar are conceptually centuries apart in the realm of maritime law.

In September, a federal court in Jacksonville, Fla., ruled on the issue of unseaworthiness. In December, the National Transportation Safety Board added the El Faro’s voyage data recorder (VDR) bridge audio to the docket in its ongoing investigation.

Unseaworthiness is a very old concept, while digital and electronic evidence from VDR, GPS and AIS data is relatively new. Both are significant in the litigation of the dozens of wrongful death and cargo claims from the El Faro sinking.

The September ruling resulted from a motion filed by the claimants for partial summary judgment on the issue of unseaworthiness. A motion essentially asks a court to do something, such as dismissing a claim or ruling on a legal issue in a lawsuit. In their motion, claimants argued that the ship’s loss of propulsion during the voyage was sufficient to render it unseaworthy as a matter of law. If you caught the Jan. 3, 2016, “60 Minutes” segment on television you may remember that the loss of propulsion came up.

Vessel interests argued that it is premature to rule on unseaworthiness because discovery, or fact finding, has been substantially limited. In general, there are a couple of legal compass points courts navigate by in lawsuits involving unseaworthiness. Under maritime law, a shipowner has an absolute duty to provide a seaworthy vessel. Maritime law also imposes a rebuttable presumption of unseaworthiness if a vessel sinks in calm weather and seas.

The arguments made by the claimants were that the El Faro lost propulsion due to an engineering problem. It does not matter why it lost propulsion, the loss of propulsion on its own is sufficient to render the ship unseaworthy as a matter of law. The vessel sank, and if a vessel that does not float is not considered unseaworthy, then unseaworthiness has no meaning.

The court felt that the claimants’ arguments were straightforward. However, it did not rule in their favor. It said there was no evidence that the El Faro sank in calm waters, adding that there is no presumption of unseaworthiness simply because a vessel sinks.

About the author

Tim Akpinar

Tim Akpinar is a Little Neck, N.Y.-based maritime attorney and former marine engineer.

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