Blame is being pointed at the deceased captain of the El Faro cargo ship at a Coast Guard hearing in Jacksonville this week.
Representatives of the companies that owned and operated the El Faro said Captain Michael Davidson alone made decisions that led the ship into the path of Hurricane Joaquin.
But one maritime-law expert says that’s an attempt to limit corporate culpability for the worst marine tragedy in decades.
Much of the first half of Wednesday’s questioning centered on the corporate structure of El Faro operator TOTE Services. Company President Philip Greene says not all TOTES are the same.
“TOTE Services is an independent, stand-alone company and, while it has the brand name TOTE, our sister company... they are a third-party client within the clientele that we manage vessels for,” Greene says.
Greene says his company managed the crew for the El Faro, but a separate company called TOTE Maritime Puerto Rico owned the ship.
Jacksonville maritime attorney Rod Sullivan says that fragmentation makes it difficult to assign blame for the deaths of 33 crew members.
“Basically what they’re saying is that they split up the function of TOTE into all these corporate entities, but then he goes and says, ‘But we all share the same office, an open-office concept. None of us have desks, and we all sit next to each other,'” Sullivan says. “The reality is that TOTE is one company that their lawyers have divided up into a lot of smaller companies for liability purposes.”
Sullivan says that strategy helps bolster TOTE’s case that El Faro’s captain was responsible for not rerouting.
“They’re trying to say it was all Captain Davidson’s responsibility, and, of course, Captain Davidson’s deceased, so he can't defend himself,” Sullivan says.
A lawyer for Davidson’s widow was at the hearing and asked TOTE representatives about her late husband’s performance. All three of Wednesday’s witnesses – TOTE Services President Greene, Director of Marine Services Lee Peterson, and Vice President of Marine Operations Mick Kondracki—agreed Davidson was “eminently qualified” for the position of captain but was passed up for a job on a new ship over some lingering questions about his leadership.
Those questions stemmed from incidents involving drunken crew members who Davidson then barred from boarding. TOTE representatives say the crew should’ve never been drinking in the first place but admitted it was a tough rule to enforce.
Investigators were still puzzled about conflicting reports on Davidson’s performance and seemed particularly concerned about the fact that the last employment evaluation TOTE had on file for the El Faro captain was from 2013 and was incomplete. None of Wednesday’s witnesses could answer why that was the case.
TOTE representatives had just as few answers for investigators when asked to explain the company's emergency safety-alert system. Specifically, the Marine Board of Investigation wondered why weather alerts were so sparse and sporadic. TOTE had sent alerts for recent Hurricane Danny and Tropical Storm Erika, but hadn’t sent similar warnings for Hurricane Joaquin.
TOTE says it was aware of the storm but wasn’t tracking its every movement. TOTE witnesses said basic weather protocol is included in every vessel’s manual, and it's incumbent upon the captain to keep his crew abreast of severe weather preparations, which documents show El Faro’s captain did.
Still, those preparations weren’t supplemented with onshore digital tracking of the vessel. Instead, TOTE’s upper management mostly relied on “noon updates,” which are daily updates sent in by the ship’s captain for an understanding of the El Faro’s position and speed.
Maritime attorney Rod Sullivan says that’s unacceptable because it means TOTE was relying on old-world communication during the digital age. Sullivan also says even though it seems unlikely TOTE specifically coerced El Faro’s captain into taking the shorter, more dangerous path, Captain Davidson may have been acting out of fear of losing his job.
Sullivan says not being considered for a job on a new ship and the fact that the El Faro was scheduled for docking could’ve left Davidson feeling more obligated to get his cargo to Puerto Rico on time.
“I don’t think there was any direct coercion, but put yourself in the shoes of Captain Davidson. He’s almost 50 years old, he knows that his ship is going away – it’s going to be laid up. He’s fearful that he won’t have a job in the future,” Sullivan says. “He knows that if he brings this ship in late, he is liable to never again work at TOTE or perhaps anywhere else in the maritime industry.”
The hearing continues in Jacksonville until Feb. 26.