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TOTE wants more time to settle with El Faro families

14 families have settled so far with company that owned ill-fated ship

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JACKSONVILLE, Fla. – The owners of the ill-fated cargo ship El Faro have filed a motion in federal court asking for more time to come to settlements with the remaining 19 crew member families.

Fourteen families have settled their wrongful death lawsuits with TOTE Maritime Puerto Rico and TOTE Services over the sinking of the 790-foot ship. El Faro went down in a hurricane Oct. 1 after losing propulsion near the Bahamas on its way from Jacksonville to San Juan, Puerto Rico. All 33 aboard died.

After weeks of searching for the sunken ship, a special Navy deep-sea exploration ship found the wreckage, but not the ship's data recorder. The National Transportation Safety Board plans to search again for the voyage data record in April.

READ: TOTE filing requesting extension

The U.S. Coast Guard completed 10 days of hearings investigating the ship's sinking and final voyage, and a second round of hearings is planned in the coming months.

TOTE is scheduled to mediate settlements with seven additional crew member families during March, April and May. The company is also in the process of scheduling three other mediation sessions.

TOTE's deadline to finalize settlements and file discovery documents before a trial process would begin is April 19, but TOTE has requested a 90-day extension that would push that date back to July 18.

“The requested extension would not cause any undue prejudcie to any party,” TOTE wrote in the filing. “To the contrary, it would afford the remaining wrongful death (and cargo) claimants with an opportunity to explore settlement just as 14 crew member families have already done.”

The filing added that TOTE is actively engaged in settlement discussions with an additional crew member family in an effort to reach a resolution of the family’s wrongful death claim without mediation.

“The fact is, the more you are required to work on your case and produce documents, the more likely you are to negotiate in good faith settlement negotiations,” maritime attorney Rod Sullivan said. “Therefore, I think it’s counter-productive to stop producing documents and names of witnesses to say you want to engage in settlement.”

Sullivan said that he feels TOTE's motion is more of a delay tactic than anything else. He said that clearly TOTE has negotiated in good faith with families up to this point, but by not providing discovery, it makes it tough for the claimants to start working on their cases, should they go to trial.

“They have a small army of lawyers working on their side,” Sullivan said. “The idea that this is going to produce too much work for that small army of lawyers to do is not in my opinion a good excuse for not continuing the litigation process.

The filing says that the U.S. Coast Guard hearings and ongoing investigation are helping to narrow discovery in the limitation of liability proceeding and that an extension of time will allow for the second round of hearings, which the filing says would benefit all parties and provide a more efficient, expedient and just resolution to the case.

Sullivan said that he expects more families to settle their wrongful death claims, but he wouldn’t be surprised if some hold out and take TOTE to trial.

“If you roll the dice in a case like this, you might come out with double sixes or you might come out with snake eyes. You just never know,” Sullivan said.

The Coast Guard has said that the second round of hearings will likely be in May if the NTSB does not find the ship’s voyage data recorder in April. The hearings will likely be in June if the VDR is retrieved.

Each of the families that have settled with TOTE so far have received $500,000 for “pain and suffering” and an agreed upon, non-disclosed amount for economic losses.