Products Liability Law Daily Maker of weather tracking system faces suit over sinking of cargo ship
Tuesday, May 16, 2017

Maker of weather tracking system faces suit over sinking of cargo ship

By Susan Engstrom

Several insurers have filed a products liability suit against the manufacturer of a weather tracking system that was used by the captain of the ill-fated cargo ship El Faro, which sank in Hurricane Joaquin while on a voyage from Florida to Puerto Rico. According to the complaint, the product provided outdated and inaccurate projections of the hurricane’s path and was a substantial factor in the vessel sailing nearly directly into the eye of the hurricane, destroying all cargo onboard. The subrogated insurers and reinsurers of the owners or consignees of the lost cargo asserted strict liability design defect, manufacturing defect, and failure-to-warn claims, as well as causes of action for negligence and negligent failure to warn (Great American Insurance Co. of New York v. StormGeo Corp., Inc., May 15, 2017).

The defendant, StormGeo Corp., Inc. d/b/a Applied Weather Technology (AWT), manufactured, distributed, and sold the Bon Voyage System version 7 (BVS 7) to Sea Star Lines, LLC d/b/a Tote Maritime Puerto Rico (Tote), and the product was installed on the vessel El Faro. The BVS 7 is a desktop application that can be installed on ship or shore computers. Through onboard computers, the BVS 7 provides weather data, including hurricane positions and projected hurricane tracks, to the ship via broadband or email communications in a compressed format. The El Faro received weather data from AWT via email on an automatically recurring basis.

Timing of forecast data. To create the BVS 7’s hurricane location and track data, AWT uses weather data generated by the NOAA Global Forecast System (GFS) and issued by the National Hurricane Center (NHC). The GFS computer models are run every six hours and take about five hours to complete, and the NHC then takes four hours to check the data. After obtaining the data from the NHC, AWT takes an additional three hours to add fronts, tides, and currents and to run the NOAA Wavewatch III model, and then spends another hour performing quality-control checks before emailing the data to vessels. Thus, AWT’s earliest release of the BVS weather files for each six-hour time period to the El Faro occurred at least 9 to 13 hours after the observations were made for the GFS computer models.

An additional six-hour delay occurred in this case when a technical glitch resulted in the BVS 7 sending a duplicate report to the El Faro. This led the captain to plan his route off of storm projections that were relayed to him at least 15 to 19 hours after they were actually observed. Unbeknownst to him, the BVS 7 showed the hurricane to be far more north than it actually was. An NTSB report later found a discrepancy of 57 to 111 miles between the BVS-projected hurricane center and the ultimate actual center.

Plotting the course. Because the captain was unaware of the delayed and inaccurate hurricane locations and projections being proffered by the BVS 7, he erroneously relied on them as current and accurate. According to the complaint, he so strongly trusted in their accuracy that he rejected suggestions by crewmembers to change course based on the "more accurate Inmarsat forecast." Relying exclusively on the BVS 7, the captain believed that the vessel was going to pass 60 miles south of the storm. However, the ship was in fact on a collision course with the more dangerous eyewall of the hurricane, and on its more dangerous north side. The captain ultimately steered the El Faro almost directly into the eye of the hurricane. The ship was later found on the sea floor.

Strict liability claims. The insurers alleged that the BVS 7 was defectively designed and manufactured in that it provided delayed, inaccurate, and misleading information to the vessel regarding the position of the storm and was a substantial factor in the ship sailing almost directly into the eye of the hurricane, destroying all cargo onboard. According to the complaint, the risks of the product’s design could have been significantly reduced by the adoption of a reasonable alternative design. In addition, the product departed from its intended design on the El Faro in that it had not downloaded the then-current NHC storm track but, rather, sent an out-of-date and erroneous projected track.

The insurers also alleged that AWT failed to adequately and effectively warn Tote and the El Faro captain of the substantial danger of relying on the BVS 7 or that the product provided delayed, inaccurate, and misleading information to the vessel about the position of major storms generally, and about the position of the hurricane at issue in the case. The foreseeable risks of the harm caused by the BVS 7 could have been reduced significantly or avoided by the provision of reasonable instructions or warnings by AWT, the complaint asserted.

Negligence claims. Additionally, the insurers’ complaint alleged that AWT failed to exercise reasonable care and was negligent in manufacturing, distributing, and selling the BVS 7, given its known and/or obvious design and manufacturing defects. According to the complaint, AWT knew or should have known that the BVS 7 posed significant danger to its users and to the cargo they carried.

In their negligent failure-to-warn claim, the insurers asserted that AWT knew that the BVS 7, if used as provided to Tote, or even misused in a reasonably feasible manner, posed significant danger to its users and their cargo. In addition, although AWT reasonably should have known that Tote would not realize this danger, the manufacturer failed to provide an adequate and effective warning to Tote.

Relief sought. The insurers seek $7 million in damages, together with interest and costs.

The case is No. 3:17-CV-554-J-32MCR.

Attorneys: Brian T. Scarry (Horr, Novak & Skipp, PA) for Great American Insurance Co. of New York, QBE Seguros and Universal Insurance Co.

Companies: Great American Insurance Co. of New York; Universal Insurance Co.; StormGeo Corp., Inc. d/b/a Applied Weather Technology

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