By: Ian Jones-Muñiz
“When you’re figuring out who to sue, remember to avoid any parties that may be a turnip. Why? Because no matter how hard you squeeze, you’ll never get blood from a turnip.”
– Author’s 1L tort law professor
In terms of collisions and other navigational incidents on the high seas, 2017 was a rough year for the United States Navy (USN). Since January 2017, the USS John S. McCain, USS Fitzgerald, and USS Lake Champlain have been involved in collisions with private, non-US flag vessels in foreign waters while the USS Antietam ran aground off the coast of Japan. The tragic loss of life and extensive damage to the ships involved begs the question: Who are the parties are involved and who bears liability for these types of collisions?
Owners of Private Vessels
The Public Vessels Act (hereinafter referred to as the “Act”) governs claims involving damage by ships owned or chartered by the United States Government (USG) not engaged in commercial service. Accordingly, the Act covers every vessel maintained by the USN. Under the Act, the USG grants US nationals a limited waiver of immunity for damages caused by public vessels.
In the event of a collision with a USN vessel resulting in damages, foreign nationals are unlikely to find relief in any court, American or otherwise. First, foreign nationals are barred from bringing tort suits against the USG unless their own government permits Americans to sue in the foreign national’s courts under similar circumstances. Second, the USN asserts the privilege of sovereign immunity as a matter of policy for all warships, stripping foreign jurisdiction for such tort claims.
In tandem, the Public Vessels Act and USN policy expose the USG to tort liability for a collision between a USN and foreign vessel only where (i) the USG claims sovereign immunity and cannot be sued in the foreign nation’s courts, and (ii) the foreign nation’s government waives sovereign immunity, agreeing to be sued in US courts.
Accordingly, foreign nationals are unlikely to find relief for a collision with US warships no matter the USN’s degree of contributory negligence.
The United States Navy’s Insulation from Lawsuits
In contrast to the private vessel owner, the USN has the benefit of both a foreign court’s jurisdiction if the collision happened within their territorial waters and US federal court jurisdiction if the collision occurred on the high seas (see arts. 5, 6, 8, 9). In maritime collision cases, the USN may pursue an affirmative case against another ship in the appropriate jurisdiction while remaining insulated from suit itself. In fact, the Department of Justice maintains an office dedicated to pursuing cases in foreign jurisdictions where the US government is a party.
Injured Service Members and Estates of Those Killed
The “Feres Doctrine” explicitly prohibits USG liability for injuries (including death) sustained by active duty service members in the course of their duties incident to military service. Specifically, the USG is not liable under the Federal Tort Claims Act (FTCA) for “injuries … resulting from the negligence of others in the armed forces.”
Though the USG is fully insulated from liability to service members after a vessel collision, injured crewmembers and dead sailors’ estates may bring an action against the private vessel owner in a standard tort case subject to the relevant jurisdiction.
Non-US Persons Suing for Environmental Damages
Under the FTCA, the US government waives immunity for most tort actions and may be sued by foreign plaintiffs in district court for “injury or loss of property … caused by the negligent or wrongful act or omission” of any government employee “acting within the scope of [their] office or employment.” In January 2017, the USS Antietam ran aground off the coast of Japan and leaked as much as 1,100 gallons of hydraulic oil. As with all chemical spills, environmental concerns are paramount and resulting damages to wildlife and food sources can be significant. In the case of the Antietam, the Japanese plaintiffs must first ensure that they are valid plaintiffs under the Foreign Claims Act, then determine whether their claim is or is not payable under said act.
Overall, the USG opens itself to liability for tort actions occurring abroad in order to “promote and to maintain friendly relations through the prompt settlement of meritorious claims.”