ACX Crystal lawyers ask judge to dismiss USS Fitzgerald collision case over jurisdiction issue
By CAITLIN DOORNBOS | STARS AND STRIPES Published: March 11, 2020
YOKOSUKA NAVAL BASE, Japan — Lawyers for the shipping company whose chartered vessel collided with the USS Fitzgerald in 2017 asked a U.S. district judge last week to dismiss two lawsuits seeking $287 million to hold the company liable for injuries and fatalities.
Tokyo-based NYK on March 5 filed motions to dismiss the suits, saying U.S. courts lack jurisdiction over the incident that occurred about 60 nautical miles southwest of Yokosuka, where the warship was based at the time.
NYK Line, a Japanese shipping company, chartered the Philippine-flagged container ship ACX Crystal that collided with the Fitzgerald, a guided-missile destroyer, around 1:30 a.m. on June 17, 2017.
Seven Navy sailors were killed in the collision, and dozens more were injured physically and emotionally, according to the lawsuits filed Nov. 18 in the Eastern District of Louisiana.
The plaintiffs in the cases include members of the seven fallen sailors’ families and 40 collision survivors. The two groups filed separate lawsuits, which argue the accident caused sailors injuries, mental anguish, lost wages, pain and suffering and “pre-death fright.”
“NYK Line is a Japanese corporation with its principal place of business in Tokyo, Japan,” the company’s lawyers wrote in the motions to dismiss. “The U.S. has never served as a surrogate home for NYK Line.”
Attorney David Schloss, who represents the sailors and families in the lawsuits, argued the case could be heard in U.S. court because NYK “has substantial, systematic and continuous contacts with the United States as a whole,” according to court documents.
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.
However, NYK’s attorneys in their motions argue the company “has limited contacts with the U.S. when compared to its global contacts.”
In the past three years, 7% of NYK’s port calls have been to the U.S., and 90% of its annual revenue “is earned from business conducted outside of North America,” according to court documents.
Further, the attorneys said none of the allegations in the case relate “to NYK Line’s conduct in the U.S. or its contacts with the U.S.”
The judge may decide whether the case can be heard in U.S. court “later this year,” Schloss told Stars and Stripes in an email Tuesday.
A Navy report in late 2017 said the accident was preventable, and listed crew exhaustion, skipped certifications, poor watch-standing and training and manning problems among the causes.
An August report by the Japan Transport Safety Board said it was “somewhat likely” that the Fitzgerald was “not properly on the lookout” for ACX Crystal. That report also listed other contributing factors, including the ACX Crystal’s failure to sound danger signals or contact the Fitzgerald before the crash, but did not assign blame to either party.
Schloss has been working with attorneys in Japan to pursue claims against the ACX Crystal’s owner, Dainichi Investment Corp. He expects to file lawsuits in a Japanese court “prior to the three-year anniversary of the collisions,” Schloss said.
Schloss said the motions to dismiss were “disappointing but not surprising.”
“The filing of the motion is yet another attempt by NYK to evade legal and moral responsibility for this preventable tragedy,” Schloss said in an email to Stars and Stripes. “Nevertheless, we intend to hold NYK accountable in the Eastern District of Louisiana, and we are confident that the court will agree that the clear precedents there support such jurisdiction.”
Requests for comment via email from NYK’s attorneys went unanswered Tuesday and Wednesday.