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The EL FARO Tragedy & Seeking Justice in a Maritime Court of Law

As a maritime lawyer with some fifteen years of water under my keel and another ten or so as a licensed captain, I’m always struck with the oddity of the tyranny that is shipyard life. The captain is king, overseer, parent and dictator. “Next after God,” is the old rubric and the word from the wheelhouse rules the day whether it’s a coastal tug or blue water trader. Sure it runs counter to the cozy democratic delusions we swaddle ourselves in ashore, but cast the lines off and the world changes. Question is, if you’re hitched to a fledgling Captain Bligh or sailing with a nutter like Professor Aronnax from 20,000 Leagues Under the Sea, can you do anything to prevent them from sailing you into the teeth of a Category 4 Hurricane?

And sure, you’re right. The reason I’m asking this question is because of the EL FARO disaster. (The EL FARO is a 1975 Ro-Ro Cargo Ship owned and managed by Sea Star Line, LLC and classed by the American Bureau of Shipping and insured by the Steamship Mutual Underwriting Association). In my opinion, it looks like the EL FARO (IMO 7395351) steamed straight toward the hurricane and I can’t figure out why. What I can do, however, is examine the remedies of the crew aboard the vessel had they decided their captain had lost, in the vernacular of the season, his gourd. It’s not pretty.

So as a baseline, you’ve got to swallow any libertarian tendencies and understand that there’s a universal recognition that the captain is the supreme leader aboard ship. He or she is in overall command of the ship with the authority to make decisions appropriate to their perception of the circumstances. Even the overwrought International Safety Management Code (a modern day manual of processes and procedures for ship operations) speaks of the captain as possessing “overriding authority.”

Feel free to be in awe of ship’s captain’s powers. It’s an appropriate response.

The remedies are few and depressingly thing. Go on strike and refuse to untie the lines from the dock and some courts will consider that mutinous behavior. Under U.S. law mutinous conduct is a federal crime for which conviction yields fines and up to a five year confinement. If you’re fresh out of a merchant marine academy and working aboard the EL FARO, the spectre of mutiny might be enough to have you going along to get along. The best bet, I believe, is for a crewmember in that situation to immediately contact an admiralty attorney to understand what rights are available. Depending on the circumstances, an admiralty attorney may be able to make contact with the vessel’s owners and/or government officials to assist in relieving the captain of his/her command.

We don’t know where along the continuum of causation the fault for the EL FARO loss lies, but time and the investigatory process will no doubt shed light on this tragedy. (And importantly, I’m not suggesting the Captain of the EL FARO was at fault because I don’t yet know where fault should be placed.) Until the investigation is complete, merchant mariners should remember that when in doubt, dial an admiralty lawyer for immediate legal counsel on your rights and remedies.

The victims of EL FARO deserve justice.

Underway and making way.

By: John K. Fulweiler, Esq.

1-800-383-MAYDAY (6293)

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