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Thursday, October 15, 2015

Hurricane Joaquin ~El Faro ~~ negligence law suit for $100 million

Hurricane Joaquin devastated several districts of the Bahamas and caused damage in the Turks and Caicos Islands, parts of the Greater Antilles, and Bermuda. The tenth named storm, third hurricane, and second major hurricane of the 2015 Atlantic hurricane season, Joaquin evolved from a non-tropical low to become a tropical depression on September 28, well southwest of Bermuda.  After becoming a tropical storm the next day, Joaquin underwent rapid intensification, reaching major hurricane strength on October 1. Meandering over the southern Bahamas, Joaquin's eye passed near or over several islands.

Of the many losses, an American cargo ship - El Faro, went missing near Crooked Island with 33 crew members (28 Americans and 5 Poles).   The vessel was last reported to have lost propulsion and begun to list.  Hurricane Hunters aircraft investigating the storm flew much lower than normal in an unsuccessful effort to locate the stricken ship. Search efforts were futile. 

Ships are covered under Marine Hull insurance – the insuring terms being - Institute Time Clauses - Hulls 1.10.83; subsequently ITC 1.11.1995 & more recently International Hull Clauses (01/11/03).  There is also the Nordic plan.   While they are named perils coverages, they exclude loss of life and other liabilities.

Protection and indemnity insurance, more commonly known as "P&I" insurance, is a form of mutual maritime insurance provided by a P&I Club.   These clubs  provide cover for open-ended risks that traditional insurers are reluctant to insure.  They are mutual insurance associations that provides risk pooling, information and representation for its members. Unlike a marine insurance company, which reports to its shareholders, a P&I club reports only to its members.  P&I insurance is primarily intended to cover a shipowner or operator’s liability to others and it generally excludes damage to the insured’s own property.  Some P&I covers are designed to cover both the contractual and legal liabilities of  the owner of a vessel.  Liabilities can arise : towards cargo owners; to the crew; to third parties  and costs of defence against legal liability claims. 

The life of a seaman is tough and hazardous.  They are exposed to maritime perils an dangers.  Seamen injured aboard ship in US can claim under : the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act.  The Merchant Marine Act of 1920, also known as the Jones Act, is a United States federal statute that provides for the promotion and maintenance of the American merchant marine.  A case before the US Supreme Court [Chandris, Inc., v. Latsis, (1995)], has set a benchmark for determining the status of any employee as a "Jones Act" seaman. Any worker who spends less than 30 percent of his time in the service of a vessel on navigable waters is presumed not to be a seaman under the Jones Act.

Reuters and many other media report of the negligence lawsuit on the behalf of Lonnie Jordan being  just the first in what Willie Gary said will be a number of cases against TOTE Maritime, the owner of the El Faro which sank in 15,000 feet of water in the Bahamas Oct. 1.

Jordan, 33, of Jacksonville, worked on the ship for 13 years as a cook and at other jobs, his family told the Times-Union after it was reported the ship sank. Attorney Willie E. Gary, flanked by relatives of other crew members,  said another ship could have sailed with the cargo but that TOTE was more interested in profit than the safety of the 33 crew members on board and who lost their lives when the 790-foot ship went down during Hurricane Joaquin.

“We are at war now,” Gary said, flanked by Jordan family members outside the Duval County Courthouse, where the lawsuit was filed. “We understand they could have gotten a different ship, they could have sailed a different route.” Mike Hanson, a crisis-management consultant working with TOTE, said Wednesday morning prior to the lawsuit being filed that the company has a policy of not responding to pending lawsuits but is supportive of the families of the El Faro crew. “The company remains fully focused on supporting the families and their loved ones,” he said in a statement on behalf of TOTE.

Gary said the lawsuit also names ship captain Michael Davidson but that it does not seek damages against his family. He said the court action aims to force changes in the industry, and that TOTE was negligent letting the El Faro leave Sept. 29. “You could have waited,” he said in reference to the company. “The ship was not seaworthy.” In response to the $100 million figure, Gary said he wanted to hit the shipping company where it hurt. “That may not be enough,” he said. “That’s what big business understands, when you hit them in the pocket.” He said the lawsuit’s timing less than two weeks after the sinking was quick so an investigation by the law firm could commence and staff could begin requesting documents and other information from the company.

“Our lawsuit is the first of a number that will be filed,” he said. Maritime lawsuits are usually filed in the federal courts. Gary said he preferred state court for strategic reasons, but wouldn’t say what maritime laws TOTE had violated. “It’s probably going to get transferred to federal court,” he said. “I’m going to fight that, but in the meantime we’re going to get work done.” Gary said while he is speaking with other possible clients, he was not discussing action with families in Maine, which several mariners called home.

Gary, a South Florida attorney and sharecropper’s son who said he won his first million-dollar lawsuit in Jacksonville, has won a number of high-dollar lawsuits against tobacco companies and others. In 2014 Gary was one of the attorneys representing a widow and son who won $23.6 billion in punitive damages and $16.9 million in compensatory damages in a lawsuit against a tobacco company. Cynthia Robinson was married to a longtime smoker who died of lung cancer in 1996. The amount was reduced this year. He has won more than 150 cases valued in excess of $1 million, according to a biography on his law firm web page.

Gary said he will hire safety experts and others to work on the El Faro case. He said the 33 crew members worked hard for TOTE. He declined to allow the family to speak, saying that they should remain silent now that the lawsuit has been filed.

A graduate of First Coast High School, Jordan went to seaman’s school in Baltimore. He was the oldest of four siblings and grew up in a deeply religious family. He attended Philippian Community Church, the family said in an earlier interview with the Times-Union. They wished the El Faro had waited to set sail. “It’s in God’s hands, but we feel like they made the wrong decision,” his maternal grandmother, Faye Cummings, said at the time. The ship left Jacksonville on a routine run to Puerto Rico carrying vehicles and container cargo on Sept. 29. On Oct. 1 the captain radioed that the El Faro had taken on water, was listing at 15 degrees and lost power. It was the last communication from the ship as it headed into the hurricane.

Coast Guard searchers flew into the storm and for days sent aircraft and rescue boats into the area where the ship was last located but found only one person, who was dead in a survival suit. The search was suspended Oct. 7. A National Transportation Safety Board team was still in Jacksonville Tuesday doing the initial part of its investigation into the sinking.

Sad that so many lives were lost; in India the family of fisherman who go missing suffer the bereavement and struggle financially  ~ here is  a sensational law suit seeking $100 million in a negligence and wrongful death lawsuit against the owners and captain of the ship …..there could be more; there would be fair compensation  – and some attorneys could also  become more famous and richer too.

With regards – S. Sampathkumar
15th Oct 2015.

Inputs largely reproduced from

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