22 October 2015

SINKING OF EL FARO – POSSIBILITY OF COMPENSATORY CLAIMS

Budzowska Fiutowski and Partners law firm would like to kindly inform that we are in the progress of gathering a group of claimants who wish to raise their compensatory claims in connection with the tragic accident of El Faro ship on 2 October 2015. The potential claims have a unique character because of their cross-border nature.

Budzowska Fiutowski and Partners law firm would like to kindly inform that we are in the progress of gathering a group of claimants who wish to raise their compensatory claims in connection with the tragic accident of El Faro ship on 2 October 2015.

The potential claims have a unique character because of their cross-border nature.

Therefore, we would like to kindly provide you with the information that may prove essential for you in deciding about the possible cooperation.

1. Background

• At 2.00 am on 30 September 2015, El Faro left Jacksonville, Florida, heading for Puerto Rico.

• At this time there was a tropical storm, called “Joaquin” several hundred miles away to the East.

• There were 33 crew members aboard – 28 US Citizens and 5 Polish Nationals.

• 3 hours prior to the ship’s departure the National Oceanic and Atmospheric Administration’s Hurricane Centre forecast that Joaquin was to become a hurricane.

• 6 hours after departure, at 8.00am, whilst the Ship was still in contact with the mainland it was declared that Joaquin was now a Hurricane.

• On 1 October 2015 at 7.00am the Master of the ship had satellite communications with the management offices of the ships owners ashore. They reported flooding on deck which had left the Vessel with a 15 degree list and also reported a loss of propulsion. At this time the winds were registered to be 125 mph - a category 4 Hurricane.

• The ships’ Emergency Position Indicating Radio Beacon was then activated and received by the Coastguard in Portsmouth, Virginia, who contacted the vessel’s owners.

• At 7.20am contact was lost with the vessel.

• On 2 October 2015 the Coastguard began a search.

• On 3 October 2015 the Coastguard declared the ship to be lost at sea.

• It seems that the vessel was not in good condition due to its age. The ship was built in 1975 and so was 40 years old.  It has been suggested that the Captain had planned a course which would avoid the storm, however a mechanical problem with the main propulsion system left him in the path of the Hurricane. The reasons for the engine problems are currently unknown.

• However, the vessel was modernized in 1992 and 2006 and Coast Guard records show that it underwent its last safety inspection in March of this year.

• Furthermore the ship was loaded with 391 containers, and so reached a height which made it more exposed to the wind and waves.  There were also 294 trailers and automobiles below deck adding to the vessel’s weight.

2. Legal basis of the claim

It is likely that these claims will be brought within the jurisdiction of the Courts of Florida, USA. Florida is the principal location of the Defendant companies, the point of departure for the El Faro on this voyage and it is also the home state of the majority of the U.S. victims. We believe that US jurisdiction extends to the families of the Polish victims.

On the facts as we know them, it appears likely that the Defendants will be found to have been negligent in setting sail in the prevailing conditions and then continuing even when the tropical storm became a hurricane. This will make them liable under Section 12 of the US Death on the High Seas Act (DOHSA) to provide fair compensation for the financial losses including loss of income, loss of support, loss of services and loss of inheritance of the deceased spouse, parent of a child, or other dependent relative.

It may also be possible to bring a claim under the US Jones Act if it can be established the deceased were seamen injured in the course of their employment, which on the face of it appears likely. However, further investigations need to be conducted into the employment status and history of the Polish crew. Under the Jones Act a claim can also be made for damages for pre-death suffering, the award for which is likely to be significant as it would be determined by an US jury if the terms of settlement were not agreed with the Defendant or their insurers.

One of the basis for a Jones Act claim is the unseaworthiness of the vessel. If this claim were successful compensation could include awards for pain and suffering, monetary losses, loss of consortium and other non-monetary losses.

It is likely that a claim will be advanced on all 3 bases.  The claim has strong grounds for being brought in the US jurisdiction and ultimately would go before an US jury who would be likely to award of significant damages to the families of the deceased far in excess of any claims that might be brought by the families within the Polish legal system.

There is also the possibility of product liability claim relating to the loss of propulsion.

Further, if it is factually determined that the owner of the vessel proceeded into the storm in conscious disregard for the safety of its crew, we will be able to make a claim for punitive damages.

3. Defendants and Insurance

The Company that owns the Ship is Tote Maritime. This is a Jacksonville, Florida, based third party Ship Management Company. The Ship is reported to have been operated by Sea Star Line, which is a subsidiary of Tote.

It is the Defendants insurers that would actually carry out the defence of the claim. You should be wary about direct approaches from the insurers to settle your claim at an early stage and prior to you receiving legal advice and representation.  If you were to accept such an offer it is likely to be considered a full and final settlement, even if you were to later discover your claim was worth far more as and when you did receive advice from lawyers experienced in international claims of this type.

4. Interim payments

Once instructed we would immediately press the Defendants and their insurers to make interim payments to the families to offset any immediate financial losses by way of early recognition of this tragedy.  

5.   Timescale

It is very difficult at the start of a claim such as yours to give an accurate estimate as to how long it might take to bring the case to a satisfactory conclusion. A number of factors can have a bearing on how long a case takes to conclude, the stance adopted by the Defendant and their insurer being one of the most significant.

Clearly, cases in which the Defendant admits liability at an early stage generally take less time to conclude than cases where liability is denied, as the only issue to be determined is the value of the case.  Most claims are completed within 18 months to two years.  However, many cases can be concluded in a shorter period of time.

6.  Funding the case in the US

US claims for the victims of fatal accident are usually funded on a contingency fee basis where the lawyers will be entitled to a percentage of any damages you recover at the end of the case. The fees are generally set on a sliding scale, where the client gets the benefit of the lower fee initially, but if the case has to proceed to trial, the fee increases due to the significant increase in costs and time. You will not incur any out of pocket costs to proceed with the litigation in the United States.

7.  Limitation Period

Generally speaking maritime claims in Florida are subject to a 2-year limitation period.  If you do not make your claim within this time limit it may become time barred.

8. The way forward

Were you to raise your compensatory claims, certain key steps would need to be taken immediately. They would include:

(a) The members of the law firm would meet with you – to take your statement on the background to your loved ones work and to get a full understanding of how your life has been affected. The members of the law firm would also talk you through the funding of your claim and the terms of the contingency fee agreement. 

(b) Contact the defendants and their insurers – early contact with the insurer will assist in liability enquiries and will help to determine the likely stance that the insurer will adopt. It will also allow us to obtain an interim payment.

(c) Contact the US authorities – to understand what if any prosecutions are to be brought and to obtain further details of the accident circumstances.

(d) Ensure preservation of documentary records including the service and maintenance history of the El Faro.

(e) Contact experts – if necessary, instruct and retain our maritime experts to consider the seaworthiness of the El Faro and the decision to sail notwithstanding the developing hurricane conditions.

(f) Contact witnesses.

9. Contact details

Therefore, we would appreciate if you could treat this information as an immediate assistance of our law firm that we offer to the indirect victims of the said accident. Further assistance would require granting the relevant power of attorney on your part. Accordingly, if you express the willingness to obtain further information connected with the issue at hand, please feel free to contact us.

 

Jolanta Budzowska, Partner

Tel: 12 428 00 70

Mail: j.budzowska@bf.com.pl

 

 

 

 

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