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USS Fitzgerald crew to appeal after judge rules in favour of NYK Line

The latest round in a legal dispute between US Navy sailors and the Japanese NYK Line over a 2017 collision has seen a US judge rule in favour of the container carrier, with lawyers for the US Navy crew vowing to appeal the decision.

On 4 June, New Orleans federal court judge, Lance Africk, ruled the sailors, either killed or injured aboard the USS Fitzgerald after a collision with the 2,854TEU ACX Crystal, did not have jurisdiction to sue the NYK Line in dismissing their complaint.

Lance Africk ruled that although NYK Line can be active and does business in the United States, it is not legally "at home". "NYK Line cannot be deemed 'at home' in every country where it conducts business," he pointed out.

"NYK Line's contacts with the United States are not so continuous and systematic as to render this an exceptional case in which a non-resident corporation is essentially 'at home' in a place other than its place of incorporation or principal place of business," he explained.

David Schloss of Koonz McKenney Johnson & DePaoli, the sailors' attorney, told Container News " that the crew are disappointed by the judge’s decision but "We are confident in our jurisdictional arguments."

He added, "Needless to say, we intend to appeal the court’s ruling. And while we are well past the point where we expect NYK Line to 'do the right thing' from a legal and moral standpoint, we intend to vigorously pursue this matter for as long as it takes until justice is served."

The American lawyer argued that "Despite the fact that NYK Line publicly apologised for the collision after it occurred, it nevertheless continues to use its vast resources to evade legal responsibility."

Asked about the condition of the sailors' families, he responded, "It is extraordinarily troubling to the seven families who lost their loved ones and the more than 40 Fitzgerald sailors who continue to suffer from debilitating physical and psychological injuries that NYK Line takes the position that it cannot be sued in the United States."

The Tokyo-based firm has applied double-standards, according to the lawyer, as it has used the US courts for many cases but now claims it cannot be sued in the US.

U.S. Navy photo by Mass Communication Specialist 1st Class Peter Burghart/Released

Container News contacted the Japanese shipping line, and the company commented that "Our thoughts and deep concerns go out to all those directly affected. NYK Line has co-operated fully with the investigation into the June 2017 incident."

According to the marine investigation accident report by Japan Transport Safety Board, the 2008-built ACX Crystal, with a master, a  second officer, an able seaman and 17 crewmen on board, proceeding to northeast in the southeast off Irouzaki, Minamiizu town, Shizuoka Prefecture for Tokyo zone of Keihin port, and the missile destroyer USS Fitzgerald, with a commanding officer, three watch officers, an able seaman, and 288 crewmen on board, proceeding to south in the southeast off Irouzaki, collided.

"Seven crew died and three crew were injured on board the USS Fitzgerald, which was flooded as a result of having holes and other damage in the starboard midship front shell, and the ACX Crystal had curve and other damage in the port bow bulwark," the report said in its synopsis.

According to the investigation report, two vessels, including ACX Crystal, signalled to the USS Fitzgerald, but it did not respond. "USS Fitzgerald navigated while keeping the course and speed without proper lookout for ACX Crystal because the attention was paid to an ocean-going container ship, which navigated parallel in the north of ACX Crystal," the report mentioned.

Back in 2017, several US media reports reported that US crew were criticised for their failures and for the accident by their own officers, with some relieved of their command, while a court case saw at least one navy crew member plead guilty to negligence. However, David Schloss stated that "As the multiple collision investigations all make clear, but for the negligent conduct of the ACX Crystal, this tragedy would have never occurred."

Antonis Karamalegkos

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