Connecting the dots between Jones Act and EL FARO sinking

by Michael Hansen, Hawaii Shippers Council, May 24, 2016

The Journal of Commerce (JOC) published on May 20, 2016, the article, “Investigators question outsourced inspections of sunken El Faro,” reporting on third and fourth days of hearings and the connection between the Jones Act, the age of the ship, and likely causes the ship was lost.

Thursday and Friday, May 19th and 20th, were the fourth and fifth days of the second round of U.S. Coast Guard (USCG) Marine Board of Investigations (MBI) hearings -- scheduled for May 16th to 27th, 2016 -- in Jacksonville, Florida, regarding the loss of the Jones Act Ponce-Class Roll-on / Roll-off (Ro/Ro) containership EL FARO owned and operated by TOTE Maritime.

The TOTE Maritime EL FARO sank off the Bahamas on October 1, 2016, in Hurricane Joachim with the loss of all 33 persons onboard. The ship was en route from Jacksonville, Florida, to San Juan, Puerto Rico, on a regularly scheduled common carrier service voyage.

On Thursday and Friday, officials of the ship’s classification society, the American Bureau of Shipping (ABS), which is responsible to the underwriters and the USCG for ship inspection, were questioned about the ship’s last inspection before sinking. The officials were Thomas Gruber, the former head of the stability group, Suresh Pisini, head of the structures group, Dan Cronin, former VP of operations, and Mark Larose, surveyor.

Separately, the World Maritime News reported on May 20th regarding Thursday’s testimony, “On the fourth day of the hearings, the board listened to a testimony from a surveyor with the American Bureau of Shipping, Mark Larose, who inspected the vessel some three months before its final voyage. He said that, during the inspection conducted in June 2015, the 20 percent of the ship which was inspected that year did not show any mechanical or structural issues, adding that they only inspect 20 percent of a ship each year over a 5-year period.”

As the JOC article pointed out, there is an obvious connection between the age of the 40 year old EL FARO and her loss in Hurricane Joachim.

Key excerpts:

A U.S. Coast Guard Marine Board of Investigation bore down on ABS “outsourced” inspection processes this past week as its members continued a methodical examination of why the old “Jones Act” vessel El Faro lost power and sank during Hurricane Joaquin.

A tough “crackdown” on old ship inspections, which followed the 1983 sinking of the SS Marine Electric, could send many of the old ships to the scrap yard, affecting coastal rates and commerce.

The Marine Board, sitting with the National Transportation Safety Board, also heard charges that Tote Maritime, the operators of El Faro, did not immediately report holes in a cargo hold flagged by a captain of the ship and that private ship surveyors were unaware of modifications to the vessel and boiler problems during the last inspection.

“During the first weeks of the hearings, Tote created an image of a company where safety came first,” said Rod Sullivan, an admiralty attorney and former law professor observing the hearings.

“During the second two weeks, much of that façade was damaged,” he said.

The outcome of the Marine Board could have an impact on the Jones Act fleet, a third of which are “over age” at 20 or more years. Proponents of the act, which reserves coastal trades to ships built in U.S. yards and manned by U.S. crews, say the old ships can be maintained. Critics say the ships are susceptible to system failures and hidden corrosion even if inspected regularly.

El Faro, more than 40 years old, sank on Oct. 1 after its captain reported the ship had lost power, was taking on water and had developed a 15-degree list.

Former El Faro master Captain Jack Hearn testified that while Tote generally maintained the El Faro, he found the company slow to report to the Coast Guard holes in a cargo hold that he had earlier reported to the company. He later said he believed his insistence on reporting the damage to the Coast Guard, as required by law, led the company to pressure him to resign or be fired.