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The city of Newark is asking a federal court to dismiss negligence and wrongful death claims against it by the families of two firefighters who died last July while battling a fire on a cargo ship,

The city maintains that the families’ claims should be handled under workers’ compensation, not under maritime or tort law.

The two Newark Fire Department captains, Augusto Acabou and Wayne Brooks, died while fighting a fire on the Italian cargo ship Grande Costa d’Avorio in Port Newark.

The firefighters’ families have sued the ship owner and operator Grimaldi Deep Sea, the firms loading automobiles onto the ship, the port authorities of New York and New Jersey, and others, as well as the city of Newark and its fire department. Their suit alleging negligence and wrongful death seeks $50 million in damages and a jury trial.

The families accuse the city and fire officials of being “negligent, careless and reckless in their operation, maintenance and control” of the fire department in “failing to properly train and equip” firefighters to suppress fires on board ocean-going ships. They also maintain that the ship was “unreasonably dangerous and unseaworthy.”

Grimaldi Deep Sea is seeking to be exonerated or have its liability limited in accordance with federal maritime law. It claims the fire was not its fault. The families argue that the owner knew that the ship was unseaworthy and thus does not qualify for protection under the federal maritime law.

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The city, a third party defendant in the families’ lawsuit, is also looking to limit its liability by insisting that the deaths of the firefighters who were employees of the city be covered under the fire department’s workers’ compensation.

“[I]t is the City’s position that workers’ compensation is the sole legal remedy as and against the City because the Plaintiffs’ decedents were firefighters who died in the line-of-duty. These firefighters were not engaged in a maritime trade. They were not members of the ship’s crew, or stevedores, or longshoremen. Their response to this ship fire was only a de minimis connection to maritime activity,” Gary S. Lipshutz, assistant counsel for the city of Newark law department, wrote in a letter summarizing Newark’s position that was filed with the federal district court on April 30.

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The city argues that while lawsuits for workplace injuries and deaths may be allowed where there is intentional wrongdoing by the employer, there is nothing in the complaint to suggest that the city knew that the firefighters were “substantially certain” to suffer injury or death in fighting this fire. The city cites a 2001 court ruling involving a Newark firefighter’s death that upheld the workers’ compensation bar despite allegations of a lack of specialized training similar to those asserted by the Brooks and Acabou families.

According to the city, there is also “no meaningful conflict” between maritime law and New Jersey’s workers’ compensation law.

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“In other words, there is no preemption of the Workers’ Compensation Act,” the city’s letter states.

As part of the investigation into the tragedy, the Coast Guard, in conjunction with the National Transportation Safety Board, held public hearings beginning in January and ending in March. A final report has not yet been issued.

However, an based on interviews, incident reports and radio communications has raised questions about the fire department’s ability to handle a major emergency on the waterfront. It concluded that the “state’s largest city was unprepared to fight a major fire at one of the nation’s largest ports.”

The families of the two firefighters have claimed that the fire was caused by a malfunctioning vehicle used to load cargo onto the ship. It took almost a week to extinguish the fire completely.

Firefighters said they found five to seven vehicles already on fire when they reached the 10th floor of the cargo ship. They were unable to find their colleagues Brooks and Acabou right away. When rescuers found them, they were already dead, according to the fire chief.

Photo: In this image taken from video, smoke rises from a cargo ship early Thursday, July 6, 2023, in the port of Newark, New Jersey. Two firefighters were killed battling the blaze that began when cars caught fire deep inside the ship carrying 5,000 cars at the port, Newark’s fire chief said. (WABC-TV via AP)

Topics Workers' Compensation Talent New Jersey Trucking