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More than a year after the tugboat Specialist sank in the Hudson River, a scathing report by the National Transportation Safety Board (NTSB) has concluded.

On March 12, 2014, the tugboat was on a return trip from Albany, escorting a barge and, on the trip back, joined by two other tugboats. As the flotilla approached the Tappan Zee Bridge, the crews were initially given a report that there was enough room to navigate. Sometime around 5 a.m., the Specialist mate radioed that there was not enough clearance and gave instructions of the others to change the course. The NTSB said that, before the flotilla could maneuver away from a construction barge, the Specialist struck it. The Specialist took on water through open doors and sank almost instantly.

After the vessel sank, several workers from the construction barge saw the mate in the water being swept away by the current. They threw life rings toward him, but he was unresponsive, the NTSB report said. He was rushed to shore, but efforts to revive him were unsuccessful. One deckhand was recovered from the tug; the other crew member was not recovered until the tugboat was brought to the surface on March 24, 2016.

According to the NTSB report, the Specialist was under-manned and its crew physically exhausted at the time of the crash. Investigators said crew members had not gotten more than 4 – 5 hours of uninterrupted sleep in at least three days prior to the accident. They were also dealing with bad weather, strong currents, and restricted visibility. The NTSB said the restricted visibility was due to the size of the crane on the barge they were towing and the location of tugboats alongside the barge. The agency also learned that the most recent Coast Guard examination of the Specialist took place two years before the accident and found 18 deficiencies, including no towing license for appropriate tonnage, personal flotation devices not being available for each person, alcohol test kits were expired and safety orientations had not been conducted and recorded. The owner of the vessels left the country after the accident and claimed to no longer be a U.S. resident.

Many maritime injury accidents and deaths result from an unsafe work environment and employer liability. When that happens, injured workers (or their bereaved loved ones) can seek compensation from the negligent parties under the Jones Act. A Jones Act claim generally requires proof of an unsafe work environment, not only through the testimony of workers, but also of an expert in maritime safety work procedures.

The families of the three men who died filed separate lawsuits in June 2016 against several parties, including the owners of the tugboat, the constructors, and a consortium member. One family is also suing the barge owners, alleging that if the barge was aligned the way it was supposed to be, the Specialist would have been pinned against the barge, rather than getting dragged under. To date, no lawsuit has been filed against the tugboat owners who sought, and was granted, the liability cap. Each of the lawsuits seeks $10 million in damages from each defendant. However, some defendants are seeking liability limits under an outdated and harsh maritime law.

The Limitation of Liability Act was enacted more than 150 years ago, and remains part of the maritime law of the United States. It has become a way for vessel companies to reduce the amount of compensation payable to maritime workers who either sustain injuries or lose their lives at sea. More specifically, if a maritime worker is seriously injured or dies while working on a vessel, the company that owns the vessel can file a petition to limit compensation to the post-voyage value of the vessel. This means that compensation for negligence would be severely limited, sometimes as low as $10,000 or nothing at all. The company that owns one of the other tugboats was already successful in obtaining a liability cap of $1.5 million, in the event that the company is sued.

When innocent victims are not fairly compensate, the taxpayers are left to foot the bill because liability caps shift responsibility from the private sector to the taxpayer. Let me repeat that in the strongest terms. THE CORPORATION IS EXCUSED; YOU PAY THEIR BILL!

Shielding corporations and government entities from liability or damages is not a solution. The solution is improving safety, saving lives, preventing injuries, and holding those responsible accountable for their actions. The Limitation of Liability Act does nothing to make the industry safer; in fact, it makes maritime commerce less safe. It is time to repeal the Act and get serious about protecting our mariners. This fatal tugboat crash proves this beyond any reasonable doubt. Lawsuit Financial will be watching to see if the families of the tugboat victims receive the justice they deserve.

Mark Bello has practiced law for 40 years. He is currently the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company, and the author of the legal thriller “Betrayal of Faith” available on major online book store sites.

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