The Last Remaining SS El Faro Mystery Four Years Later: What in the World Happened to the Civil Charges Against Tote?

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The Coast Guard has been at its nimble and frisky best these days.

It’s been jumping on to min-submarines to bust drug smugglers, charging DUKW boat owners with criminal manslaughter, busting a $1 billon cocaine shipment in Philadelphia, swooping in to ponder the dive boat Conception tragedy, rescuing hurricane victims in the Bahamas, and checking pollution from over-turned container ships off the coast.

So in other words: generally living up to its reputation as the agency that gets things done in a tight spot.

So why are the relatively minor civil charges pending against Tote in the SS El Faro Marine Board of Investigation still lost at sea? Four years after the loss of the crew of 33? Two years after the Marine Board of Investigation recommended the charges?

The heavy lifting on that MBI is done. The Coast Guard and its inspectors have focused hard on safety inspections and driven many of the oldest and weakest rust buckets from the fleet.

The civil penalties proposed against Tote, as operator of the SS El Faro, are far less weighty.  In the world of maritime law and admiralty, the penalties are relatively small — more “traffic ticket” items than felonies or even serious misdemeanors. None trace back as a direct cause of the tragedy. They deal with these alleged infractions:

  • Tote violated rest hours for deck officers in a systematic manner, specifically for Second Mate Danielle Randolph, the Marine Board found.
  • Moreover, Tote did not adequately give safety training to the “riding crew” of Polish nationals on board to convert the ship for Alaska use.
  • The company also failed to report to the Coast Guard repairs to lifesaving equipment as required by law.
  • Tote also is alleged to have not reported to the Coast Guard repairs to the ship’s main boiler

“Maybe that amounts to $80,000 in fines?” said one expert who has observed the case. “You’d think this is something Tote would want to put in its wake.”

CASTINE, ME – OCTOBER 6: Maine Maritime students listen during a reading at a vigil at the school in Castin on Tuesday, October 6, 2015. Four Mainers who were aboard the cargo ship El Faro, Capt. Michael Davidson of Windham, Michael Holland of Wilton, Danielle Randolph of Rockland and Dylan Meklin, both of Rockland, are all graduates of Maine Maritime Academy. (Photo by Gregory Rec/Portland Press Herald via Getty Images)

At first, there was speculation that Coast Guard legal was hung up on the fact that no formal ship log existed — which would have been a basis for some of the charges. Proponents of moving forward argued that the deck recordings adequately substituted for the formal log.

Not many further insights have appeared. A statement from Jacksonville USCG officials in September gave this update:

“The violations have been sent back for approval to the Hearing Officer from the Investigating Officer in Jacksonville. These violations are carefully examined by multiple layers from local and national offices, explaining why the legal process takes so long.”

This could indicate an insistence on the part of Jacksonville investigators that the charges be pressed aggressively and a continuing debate on the “log” issue. Or some other unknown hold-up.

There is an irony at play in terms of the real impact of the punishment, of course.

A good admiralty attorney can cost upwards of $500 an hour — or about $80,000 per month.

And believe it: Tote had good attorneys!

So the two-year delay may have cost Tote far, far more than the fines.

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