by Michael Hansen, Hawaii Shippers Council, February 23, 2016
The Journal of Commerce (JOC) published on February 22, 2016, an article, “Despite strong TOTE defense, El Faro could reshape Jones Act,” regarding the loss of the TOTE Maritime Roll-on roll-off (Ro/Ro) trailership EL FARO on October 1, 2015, off the Bahama Islands during Hurricane Joaquin.
The author opines that the negative public opinion being generated by TOTE officials seemingly callous testimony at the U.S. Coast Guard Marine Board of Investigations currently underway in Jacksonville, Florida, may affect the U.S. national shipping policy.
In particular, in respect of the Jones Act domestic build requirement that has led to the employment of elderly vessels in domestic coastwise trades that are as the author states “twice the usual lifetime of a ship.”
Attorneys for TOTE Services and TOTE Maritime have mounted a strong and effective defense of the company but produced “optics” that are so negative for the company that broad public opinion could begin to affect national shipping policy.
At U.S. Coast Guard Marine Board of Investigation hearings here, the companies have shown that El Faro was carefully maintained and repaired. Its officials have stressed repeatedly that they provided good weather information but relied on its expert sea-going captains to judge the severity of storms.
But the strategy of emphasizing the authority of the ship’s captain has alienated the families of the dead crew. As the brother of one crew member, who wished to remain anonymous, said last week, “They say they let the officers make all the decisions, but what they are doing is trying to throw the captain and the crew under the bus and blame them for everything.”
And this past weekend, the companies may have alienated severely the public at large when tapes revealed El Faro Capt. Michael Davidson’s emergency call to TOTE was handled more like a “consumer relations” call center than a nautical 911.
In fact, Davidson told Lawrence he was not sending the crew to the lifeboats and he was pumping out holds that had flooded. Lawrence called the Coast Guard, but he did not say the ship was sinking because both Davidson and the second mate seemed calm and in control of the situation. Lawrence thought Davidson would right the ship’s list, regain his engines and steam forward in waves described only as 10 to 12-foot swells.
Despite that, the tapes have “blown up” on social media and the public relations “optics” or appearance of company carelessness has tilted to the highly negative. Jacksonville television stations steadily send out crew family criticisms of the company and those will only grow in the “post-tape” atmosphere. The audio clip has been posted online while the streaming video of the hearings has been copied and reposted throughout the web.
Despite the public relations hits, the company has experienced no serious breach of its legal defense: The firm took safety seriously, invested in many repairs to the old ship, and hired skilled sea-going captains, its witnesses have stated.
But the cost of such a defense may also be measured in public opinion as it pertains to the nation’s maritime laws. The Jones Act, which reserves domestic shipping to vessels built in America manned by American crews, is already under attack for creating a fleet of very old vessels – like El Faro.
El Faro was 40-years-old, twice the usual lifetime of a ship.
“Before sinking, officials flagged El Faro as at-risk vessel,”
AUDIO: Final calls from El Faro's Captain describe ‘marine emergency’,”
“Coast Guard planned to put El Faro on list of at-risk vessels,”