An Odd Admiralty Alignment on El Faro

The most significant “reveal” at the US Coast Guard Marine Board of Investigation into the sinking of the El Faro and the deaths of all 33 aboard her is simply this:

There are no “parties of interest” truly critical of Tote, the owner of the El Faro.

Marine Boards of Investigation are odd that way.  People think of them as courtrooms but in fact, there is no separate prosecution or defense.  The board serves as both, with “parties of interest” attorneys allowed to question witnesses.

At the Marine Electric Marine Board, attorneys representing the officers and survivors passionately criticized Marine Transport Lines, the owner of the old coal collier, which sank in 1983.

There is no similar dynamic here, a fact clearly displayed by the questioning today and one fascinating “reveal.”

 

We’ll get to that.  First, the new substantive facts?

One former master said the company was reluctant to report holes in the hold of one vessel and there was poor “ground support.”

Moreover the ship was “tender”after cargo containers were added above deck. And the boilers and condensers on the ship were a continuing problem.

Another said he was asked to depart at times with his GM (loading balance) just slightly out of whack.  Others said the ship “was a Cadillac” without vulnerabilities and that the company repaired defects quickly.

Also,  weather officials said they often delayed updates on the path of Hurricane Joaquin out of concern that they would lose credibility with the general public.

In short, the testimony took some small chunks out of Tote, but not big ones. And much of the criticism coming from the former masters seemed less than damning.

Here was the “reveal:”

A scorched earth cross examination of Capt. Jack Hearn, the most critical of the ex-masters, came not from Tote Maritime, but from  William Bennett, the attorney for Teresa Davidson, the widow of Captain Michael Davidson who captained the El Faro on her last voyage.

Bennett confronted Hearn with a letter that suggested he might have been fired because of drug smuggling aboard a Tote vessel.

And while Hearn said he did not resign as a result of the letter, but rather agreed to a negotiated departure, and that his reporting ship damage may also have led to his troubles, the “drug” assertion clouded his testimony, which had been cautiously critical of Tote.

Why would Bennett, representing the interests of the dead captain and his estate, attack Hearn, who was critical of Tote?

Why use a flamethrower on a colleague of Davidson’s who seemed to testify forthrightly and was at best mildly critical of Tote?

Why, as one Twitter post suggested, was Tote silent wile Bennet did the heavy lifting?

There are a number of possible reasons.

While Davidson may seem to be clearly a victim of the sinking, his estate could be liable if he is shown to have acted negligently.  So any suggestion that Davidson abided Tote shortcomings  — as described by Hearn — comes into Bennet’s cross hairs and firing range.

Bennett clearly has stated that the captain received poor weather advice and the accident essentially was caused by inaccurate weather forecasts.

This explanation does a couple of things.  It relieves Davidson’s estate of future liability.  And it also “works” for Tote.

For the company to be proved liable for large sums of money, plaintiffs must show active negligence on the part of the company.  They can choose to stress a number of defenses.  One is that the officers were negligent.  Another might be that the weather forecasts were inaccurate.

Davidson’s widow  already has settled with Tote for a sum of $500,000 and an unknown amount for the pain and suffering of the captain.  So there is no incentive for Bennett to show Tote was negligent, and every reason for him to attack anyone who suggests the captain was negligent by following Tote negligent practices.

Such are the odd natures of Coast Guard Marine Boards.  I am not saying Tote and Bennett are in league.  I am saying their interests are aligned. And I mean no ill will or comment toward Davidson’s widow or Bennett. She must do what is right for her family and defend Davidson’s reputation they way she sees fit.  He is serving his client well and doing his job in fierce defense of Davidson’s reputation and liability.

But the way the cards have flopped, that leaves no one among the “parties of interest” to contest Tote’s story.  There is no adversarial point of view among the “party of interest” attorneys representing ABS, some cargo loaders and shipyards.  All of them are well-served if Tote did everything right and ill-served if Tote deficiencies are revealed.

Quite a change in the hearings I covered at length for the sinking of the SS Poet and the SS Marine Electric.  There, strong advocates were present critical of the company.  In the Marine Electric, there were survivors who testified as well. They had strong incentives to protect their reputations and to lay the ground work for a meaningful civil suit.

In the case of the El Faro, there are no parties of interest critical of the company.  That role rests with the board alone to pose the tough questions.

Those questions may seem hazy after three days of technical testimony, but they are important.

An old ship, twice the age at which most are retired, lost power at sea, flooded from an insecure hatch, and foundered in the path of a powerful hurricane.

Some party needs to be interested in why this happened.  Someone needs to probe to see whether Tote acted admirably, conducted itself properly, simply has a plausible alibi, or in fact is negligent.

Fortunately, the board has skin in this game.  The questions from the NTSB and the Coast Guard are focused and sharp. They seem resolute.

 

The big question remains:  Will the “survivors” testify?  Will the “black box” at the bottom of the Caribbean be retrieved and the data adequate to show what went on.

In the end, that may best serve all parties of interest, whether all parties are interested or not.