Are Companies Doing Enough to Protect Offshore Workers from Storms?

By Arnold & Itkin Law Firm

On September 29, 2015, the El Faro, a cargo ship owned by TOTE Maritime, disembarked Jacksonville, Florida. It was supposed to arrive in Puerto Rico a few days later. However, at the same time, Tropical Storm Joaquin was gathering strength a few hundred miles to the cargo ship’s east. By September 30, the storm had grown into a Category 3 hurricane.

On October 1, 2015, the El Faro became a household name in America.

The cargo ship, along with 33 crew members, had vanished as it sailed into the hurricane. After an extensive search, the El Faro was declared sunk. The search for survivors was called off on October 7, and all 33 crew members were presumed dead. Their bodies were never recovered.

What Happened to the El Faro?

As investigations into the sinking commenced, the story around it became as frustrating as tragic. By August of 2016, the cargo ship’s voyage data recorder (VDR) was obtained—the most crucial puzzle piece needed to solve the mystery of why the El Faro sailed into the path of a powerful hurricane. Details slowly emerged, showing the vessel was almost willingly thrown into harm’s way. In 2017, the National Transportation Safety Board (NTSB) revealed multiple factors contributing to the El Faro’s sinking.

The NTSB determined that:

• The captain ignored the data available to him and made the wrong decisions.
• The El Faro had inadequate lifeboats.
• The owner of the El Faro failed to maintain the vessel and it was in a deteriorating condition.

Ultimately, the NTSB’s report criticized the captain’s decisions and determined that it, along with TOTE’s safety management oversight, were the leading causes of the El Faro’s sinking. While maintaining the vessel might have given it a chance against the storm, avoiding the storm altogether was the obvious way to prevent this accident. Yet, the vessel’s owners and management failed to protect the crew.

What the El Faro Disaster Means for Maritime Safety

Besides being one of the most significant maritime disasters in recent United States history, the El Faro served as a staunch reminder to companies who fail to respect Mother Nature and the safety of the crews that they ask to face her. While the El Faro wasn’t in the proper condition to face a storm, the crew shouldn’t have been asked to sail into such a strong one to begin with.

The VDR revealed that the El Faro’s officers expressed concerns about getting too close to Hurricane Joaquin—all of which were ignored until it was too late. Their safety was betrayed by their company.

The El Faro’s sinking was a reminder: 

When it comes to predictable severe weather, the lives of offshore workers are never worth the gamble.

Companies shouldn’t ask their workers to weather storms—they should ask crews to avoid them.

The Deepwater Asgard: Another Harrowing Encounter

Last October, the Deepwater Asgard was almost the focus of another Hurricane-related NTSB sinking investigation. The vessel was left in the path of Hurricane Zeta. Instead of unlatching the vessel from its well, its owners, from the safety of shore, ordered the Asgard’s crew to remain. By the time the crew decided to disconnect the vessel, they were already at the mercy of the storm.

At one point, the drillship lost an engine, and two of its thrusters began to take on water. According to a damage assessment after the storm, the ship’s “tensioner, flex joint, telescopic joint, LMRP, riser joints, cabling, and other riser-related components had sustained significant damage.” A report from the BSEE indicated that the hurricane “presented a potential threat to rig personnel.”

Currently, crew members are suing the operator of Deepwater Asgard for placing them in harm’s way. When considering the fate of the El Faro, it can be hard to overstate other possible outcomes of this preventable situation. While it’s easy to point out that the crew survived, it’s even easier to point out how close they came to becoming victims of another maritime tragedy.

How Are Companies Protecting Offshore Workers from Storms?

Few would debate this statement: offshore workers are tough.

Perhaps that’s why so many companies think their workers can handle the volatile conditions brought by severe weather. Yet, at a certain point, nature stops considering how tough a vessel’s crew is. No offshore worker should be left in the path of the storm—especially when there are clear indicators that the risks are too high.

For the El Faro’s crew, it’s too late—their families understand this all too much. For the crew of the Deepwater Asgard, it was almost too late. Their families feel fortunate to have them here still.

In some instances, companies try to avoid doing what’s right, even after failing to prevent accidents. In the case of the El Faro, owner TOTE Maritime attempted to hide behind a 170-year-old law call the Limitation of Liability Act. In short, this law was designed to protect vessel owners after accidents they couldn’t prevent.

When this law was created, vessel owners were out of communication and control of their ships during voyages. The Limitation of Liability Act helped them avoid financial ruin after accidents they didn’t play a role in. Yet, that was nearly two centuries ago. In the age of modern technology and the storm prediction and communication it allows, the law has only become an outlet for companies looking to avoid doing what’s right.

Maritime Attorneys Kurt Arnold and Jason Itkin are long-time opponents of the Limitation of Liability Act. Like many other critics of the law, they argue that it has outlived the era it was created for. In fact, they successfully represented widows of the El Faro despite this outdated law and ensured families received the compensation that they deserved. For future offshore workers, evading a large storm should be the first option. No questions asked. If the unthinkable happens, companies must be the first to step up and do what’s right. When they fail to do either of these things, they must be held accountable.

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