USS Fitzgerald collision survivors, families of those killed seek $287 million in separate lawsuits
By CAITLIN DOORNBOS | STARS AND STRIPES Published: November 18, 2019
YOKOSUKA NAVAL BASE, Japan — Survivors of the USS Fitzgerald collision, along with the families of seven sailors killed, are seeking more than $287 million from the company that chartered the merchant vessel that collided with the guided-missile cruiser in 2017, their attorney told Stars and Stripes this week.
Forty-seven plaintiffs filed two lawsuits Monday in the Eastern District of Louisiana against NYK Line, a Japanese shipping company that chartered the Philippine-flagged container ship ACX Crystal. Forty of the plaintiffs are survivors and seven are family members of those killed. The two groups filed separate lawsuits.
The plaintiffs’ attorney, David Schloss, of Washington, D.C., said the accident caused his clients injuries, mental anguish, lost wages, pain and suffering and “pre-death fright.”
The collision happened June 17, 2017, about 60 nautical miles southwest of Yokosuka, where the warship was based at the time. Official reports have not assigned liability for the crash to either ship.
The Navy in its November 2017 post-collision report took responsibility for crew actions that led to the tragedy – such as poor watch-standing and crew exhaustion – but said the “relative performance and fault of the vessels is an open [maritime] law issue.”
In its report, the Navy specifically addressed the Fitzgerald’s movements, not those of the ACX Crystal.
“The Navy is not concerned about the mistakes made by Crystal,” the report said. “Instead, the Navy is focused on the performance of its ships and what we could have done differently to avoid these mishaps.”
‘A wall of water’
In a September interview, Schloss said he’d hired a forensic psychologist who will testify that the fallen sailors knew they were dying as their berthing area flooded.
“Several witnesses recall … a wall of water rushing toward them,” according to the lawsuit. “The water pressure was so intense that several Sailors were pulled away from the port side scuttle exit by the rushing water.”
Autopsies revealed no sailors died in the immediate impact, but rather by inhaling seawater.
“They were conscious for two to three minutes knowing they were drowning,” Schloss said.
Two of his clients had to close the berthing exit “to protect the structural integrity of the whole ship” while knowing sailors remained inside, according to the lawsuit.
Nearly all his clients battle post-traumatic stress disorder since the collision, Schloss said in September. Many were sent back to the U.S. for treatment, required in-patient care, were put on mental health medication or assigned limited duty as a result. Eleven have or will be discharged from the Navy for disabilities they received in the collision.
In August, a Japan Transport Safety Board report identified key factors that contributed to the collision, but the report did not place blame on either party. While it listed some Fitzgerald faults, including ineffective watch-standing, as causal factors, it also said the ACX Crystal’s crew should have done more to prevent the collision.
The board’s report said merchant ship’s crew “expected that the USS Fitzgerald would recognize them and avoid ACX Crystal,” so it did not change its course or speed before the collision. It also failed to sound a horn to properly warn the Fitzgerald of the impending danger.
“When [a] vessel fails to understand the intentions or actions of other vessels, or there is doubt that other vessels are taking sufficient action to avoid a collision, warning signals shall be sounded,” said a translated copy of the report.
The sailors are not pursuing legal action against the Navy; U.S. law bars service members from suing the government for on-the-job injuries, Schloss said. However, outside parties can be held responsible.
Attempts to reach attorneys for NYK were unsuccessful.
NYK is a Japanese company, but Schloss said U.S. courts can have jurisdiction over the case because NYK has a large global network spanning 60 regions and countries, including the United States. The company employs about 35,000 people, has a fleet of 710 ships and has consolidated revenue of about $17.1 billion, according to its website.
The Fitzgerald’s was the first of two collisions involving 7th Fleet vessels in 2017. On Aug. 21, 2017, an oil tanker named the Alnic MC slammed into the port side of the guided-missile destroyer USS John S. McCain, killing 10 sailors. Survivors and families of the fallen in that incident are also involved in a lawsuit against the owner of the merchant vessel.
The U.S. government, along with the families and injured sailors, countersued Energetic Tank Inc., owner of the Alnic MC, which in early 2018 in federal court sought exoneration from liability in that collision.
The 42 plaintiffs in that case seek more than $66.5 million from Energetic Tank for personal injury, wrongful death and property damage.
Nearly two years later, the case is ongoing. The discovery deadline passed last month.
Attorneys collected depositions from witnesses in Japan in late September and early October for the McCain case, according to court documents. Ten of the 12 deposed are sailors, and the remaining two are civilians affiliated with Yokosuka Naval Base.