I’ve been contacted to discuss the collision involving the destroyer USS Fitzgerald off the coast of Japan on June 17, 2017, which resulted in the loss of 7 Sailors’ lives when their berthing flooded.
Though early reports have indicated that the merchant vessel ACX Crystal abruptly changed course, then collided into the starboard side of USS Fitzgerald, I sincerely doubt that the Navy will not pursue administrative or punitive action against the Commanding Officer, the Navigator, and those on watch at the time of the collision. I recently was involved in a case involving the loss of a patrol boat due to navigational error and a separate case involving the “Farsi Island incident;” in both those cases, the Navy reached out as far as they possibly could to “hold those involved accountable.” In Navy terms, that means ending the careers of anyone remotely associated with the incident.
The Commanding Officer of USS Fitzgerald, even though injured in the collision, will likely be removed from command and detached for cause. The Navy refers to this as the responsibility of command – the commanding officer is responsible, regardless of personal involvement, in all aspects involving the operation of the ship. Here, the ship was not safely operated by its crew – with all of the sophisticated radar (not to mention the watch-standers personal observations) and the maneuverability of the Arleigh Burke class DDG, the ship should have avoided the collision.
Naval authorities could also pursue punitive action under the Article 110 of the Uniform Code of Military Justice, which criminalizes the hazarding of a vessel. The statute is violated when “the accused by certain acts or omissions, willfully and wrongfully, or negligently, caused or suffered the vessel to be hazarded.” I doubt anyone on the USS Fitgerald acted willfully. The real issue will be how far the Navy will reach to find those who it will argue were negligent.
The case law on negligently hazarding vessel is thin, but a Coast Guard case sheds some light on the standard for a conviction for negligently hazarding a vessel: “The bare essentials for a conviction under Article 110(b) are: proof that the vessel was hazarded, and proof that the hazarding was the proximate result of the accused’s negligence. Incontrovertible proof of hazarding is supplied by evidence that the vessel was stranded. But proof that the hazarding resulted from the accused’s negligence is a more complex matter. It is necessary to show the duty and the way it was breached before it can be asserted that there was negligence; since the extent of the duty may vary according to the circumstances, the particular circumstances must be shown; and if, as in the case at bar, the negligence is particularized, then the evidence must be relevant to what is particularized. Finally, when the negligence as alleged is established, it is still necessary to show that such negligence was the proximate cause of the hazarding.” United States v. MacLane, 32 C.M.R. 732, 735 (U.S.C.G.B.R. 1962). Commander MacLane was in command of the U.S. Coast Guard Cutter WINNEBAGO (WPG-40) on March 26, 1962 when the ship grounded on a reef near Pearl Harbor, Hawaii. His navigator was an ensign on his first sea-tour. The court, upholding the conviction, provided:
A single sounding after 2300 would almost surely have put the Commanding Officer on timely notice that something was amiss. Considering the chart that was in use, the course and the position of the vessel, the equipment unusued, the personnel unposted and the other things that were not being done in the face of a night approach to a transit of a narrow and shoal-bound channel, our Board concurs in the conclusion of the triers of the facts — that the failure to cause a running plot of the true position of the vessel to be maintained at the times alleged was negligence, and that the negligence was the proximate cause of the vessel being hazarded.
As expected ,the investigation will review logs, training, personnel qualifications, radio communications, GPS positions, speed and course, and so forth to determine who is responsible for the collision. But, make no mistake, at the end of the day, per U.S. Navy Regulation 0857, it is the commanding officer who is ultimately responsible for the safe navigation of his ship.
Patrick Korody is a Florida-based military law attorney. He represents servicemembers’ worldwide. He is a former U.S. Navy judge advocate. He can be reached at (904) 383-7261.