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Pedro Furtado, here being interviewed in his home on Dec. 23, has sued his boat’s owner just days after it sank and five fellow crew members died.
Pedro Furtado, here being interviewed in his home on Dec. 23, has sued his boat’s owner just days after it sank and five fellow crew members died. (New Bedford Standard Times Photo / Peter Pereira)

Surviving fisherman sues, calling boat unseaworthy

Cold-weather suits out of reach, he says

The lone survivor of the scallop boat accident that took the lives of five commercial fishermen in frigid seas off Nantucket last week has sued the vessel's owner, contending that the Northern Edge was unseaworthy and that survival suits were stowed out of reach.

Pedro Furtado, 22, of New Bedford, is arguing that waves ranging from 11 to 15 feet should not have capsized and sunk the 75-foot scalloper owned by K&R Fishing Enterprises Inc., according to his lawyer, Carolyn M. Latti.

''A vessel should be able to withstand those seas," said Latti, a specialist in maritime law who filed the personal-injury suit in federal court on Tuesday. ''When it gets hit by a wave and doesn't right itself . . . there's an indication that there's something wrong with the stability."

Furtado also contends that New Bedford-based K&R improperly stored the suits, which are insulated to keep one alive in cold water, in the engine room, where the crew couldn't fetch them when the vessel capsized Dec. 20. Coast Guard cutters and aircraft spent two days searching for Furtado's five crewmates before giving up.

The vast majority of lawsuits that stem from accidents at sea are settled out of court, said Joseph G. Abromovitz of Boston, who has practiced maritime law for 30 years.

Survivors are far more likely to recover significant sums of money than the families of deceased seamen, because of a quirk of the 1920 federal Death on the High Seas Act.

That may mean that Furtado fares better than the families of the men presumed dead: Ray Richards, Glen Crowley, Juan Flores, Eric Guillen, and Carlos Lopes, the boat's captain. So far, no one is believed to have filed suits on behalf of any of the deceased.

Thomas Clinton, one of the lawyers for K&R, said he could not comment on the lawsuit.

The Death on the High Seas Act, approved by Congress when the United States wanted nothing to hamper it from becoming one of the world's great shipping powers, provides no damages for loss of companionship to families of seamen killed, as is customary in other wrongful-death lawsuits, Abromovitz said. Families can only recover the wages they would have received if the seamen had lived.

But the federal act does allow survivors to recover damages for injuries, emotional and physical suffering, and lost income, as is customary in other personal-injury suits, Abromovitz said.

In anticipation of suits by Furtado and the estates of the five fishermen lost at sea, K&R filed a petition Monday in federal court asking that it be absolved of having to pay any damages or that the amount be sharply limited.

The petition, which is routinely filed by the owners of boats lost at sea, insisted that the Northern Edge was ''in all respects seaworthy and fit for service." The vessel capsized because of severe weather and because its dredging gear, which scallopers use to dig shellfish off the bottom, snarled on the ocean floor, the company contends.

Before Furtado's lawsuit could go to trial, a federal judge would have to hold a separate trial on the petition, probably within 18 months, according to Latti. K&R could derail Furtado's suit if it proved at that trial that the Northern Edge was seaworthy or that the company could not have foreseen the disaster, Abromovitz said.

Furtado survived by clinging to a lifeboat. He was rescued by crew members from another fishing boat, the Diane Marie, which spotted a flare and joined in the search, along with other fishing boats working nearby waters.

The human toll of the accident 45 miles southeast of Nantucket was the worst in New England since the Andrea Gail of Gloucester sank in 1991 with its entire crew of six, a tragedy recounted in the book and movie ''The Perfect Storm."

Last week, Latti said she planned to file a second lawsuit against the National Marine Fisheries Service, seeking damages for federal fishing regulations that compelled the vessel's crew to stay out in bad weather. Critics of the regulations say the rules protect fish, but sometimes force fishermen to stay out in dangerous conditions.

But Latti said yesterday that she now has no plans to sue the National Marine Fisheries Service, although she still believes the rules are ''100 percent" wrongheaded. She would not say yesterday why she was changing plans.

Jonathan Saltzman can be reached at jsaltzman@globe.com.

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