Unfortunately, the stability criteria do not increase as the draft increases. While the righting arms and area under the curve may decrease, the same criteria has to be met from lightship to full load draft. As long as a vessel meets the minimum criteria, the vessel is ok to sail from a stability perspective. There is no legal way to require a ship to meet criteria over and above what is required by the Regulations, be it the CFR or IMO.
Keep in mind that the only applicable criteria was the USCG Weather Criteria and SOLAS damage stability from 1990. There was no applicable righting energy criteria for the EL FARO. None. Not when built. Not when lengthened and not when converted in 2005/6. The SOLAS damage stability was not updated until 2009, so that would never have applied, even though the USCG’s report showed the EL FARO did meet it on the ill fated voyage.
Would meeting more strict criteria be safer? Of course. Let’s take an example that’s closer to home. Look at the vehicle you drive. More than likely each seat is provided with a seat belt and a shoulder strap. Why? Because that is what the regulators have been deemed safe - the minimum level of safety to be met.
Now we all know that a 5 point harness is safer than a belt with shoulder strap. How many of you have retrofitted them on your vehicles? Think about those that drive around their kids or grandkids. If you know this would be safer and could save the lives of you and/or your passengers in an accident, why haven’t you spent the money to retrofit your vehicles with 5 point harnesses for each person? You have deemed it too much money to spend on the increasing the level of safety over and above what is required.
When you say that the owners should have gone above and beyond the required level of safety provided by the applicable stability criteria, you are expecting them to do what you haven’t done for yourself.
One last thought. The vessel sailed for 40 years under it’s applicable stability criteria without a loss until she was put on a collision course with a hurricane. Everything that is built (cars, truck, ships, trains, planes, buildings, dams, etc.) has a limit to the conditions it can withstand. I don’t care if the vessel was built in the 70s or last year, ship stability criteria are not developed with the thought of running into the eyewall of a hurricane.