No civilians to be part of inquiry
The Navy starts its formal investigation of the sub collision on March 5
By Gregg K. Kakesako
- Aloha appreciated
- Isle attorney tapped
- Captain not told
The Navy has ruled out the possibility that civilians — 16 riding as passengers on a nuclear attack submarine and the 25 surviving crewmen of the Japanese fishing vessel Ehime — will be named as parties in its formal investigative inquiry that will begin March 5.
Capt. Michael Hinkley, Pacific Fleet Judge Advocate, said yesterday that “only limited circumstances” exist where a civilian would be subject to the military’s Uniform Code of Military Justice.
He cited those exceptions as war or if they worked for the Department of Defense.
Hinkley said none of the 16 civilians who were aboard the USS Greeneville when it collided with the Ehime Maru two weeks ago work for the Defense Department.
The 6,000-ton Greeneville surfaced into the 190-foot fishing vessel, about nine miles south of Diamond Head.
Since Feb. 9, the Coast Guard and Navy have been searching for nine high-school students and crewmen.
The search has covered 31,515 square miles, an area the size of South Carolina.
Yesterday, Hinkley said at a news briefing that Rear Adm. Isamu Ozawa, the Japanese government’s advisor to the Court of Inquiry, will be able to join deliberations of the three U.S. admirals in examining the actions of the Greeneville’s top three officers.
However, Ozawa, a Japanese submarine officer, will not have a vote on any of the findings of fact, opinions or recommendations of the high-level panel, which will be headed by Vice. Adm. John Nathman.
Hinkley said it will be up to Nathman as the board’s presiding officer to determine whether Ozawa will be allow to join the closed-door session when the votes are taken.
Asked how long the Court of Inquiry could take after hearing witnesses before it would be ready with a recommendation for Adm. Thomas Fargo, Pacific Fleet commander, Hinkley said, “as long as it takes to get a full accounting.”
It has been estimated that the Court of Inquiry could hear as many as 20 witnesses.
Hinkley recalled that following the 1992 accident in which the USS Saratoga mistakenly fired two deadly missiles into a nearby Turkish destroyer, the court of inquiry took 30 days.
“But it was held at sea,” he said.
The Turkish government demanded courts martial for the responsible parties, but the Court of Inquiry rejected such action because it ruled that the firing was accidental and lacked criminal intent.
Hinkley said he believes the investigation will be “a drawn-out period of questions and answers.”
Once Fargo receives the three admirals’ recommendation, he has to take action within 30 days. The court’s findings could lead to criminal charges for Greeneville’s captain, Cmdr. Scott Waddle; the vessel’s executive officer, Lt. Cmdr. Gerald Pfeifer, and Lt. j.g. Michael Coen, officer of the deck at the time of the collision.
Possible charges include involuntary manslaughter, negligent homicide, dereliction of duty and conduct unbecoming an officer.
Hinkley said a Court of Inquiry — the Navy’s highest administrative fact-finding process — is unlike a more adversarial Article 32 hearing where there are charges already levied against a defendant.
“It is designed to get facts and make appropriate recommendations,” he said.
However, the recommendations of a Court of Inquiry can be substituted for an Article 32 investigation, which is equivalent to a preliminary hearing in the civilian criminal justice system.
An Article 32 hearing is required before any case is referred to a court martial.
Hinkley said that Greeneville’s officers can refuse to testify and they all will have Navy lawyers.
Besides Cmdr. Jennifer Herold, Waddle has hired civilian attorney Charles Gittins, who specializes in military cases, to represent him.
Representing Pfeifer will be Lt. Cmdr. Timothy Stone. Lt. Marcus Fulton will be Coen’s attorney.
Nathman and the two other U.S. admirals on the court as well as Ozawa will be allowed to question witnesses.
Unlike a normal judicial hearing, Hinkley said there will be no advocates or prosecutors, but “counsels for the court,” whose questioning must be impartial.
Japan official: Aloha makes families grateful
By Janine Tully
Japan’s vice minister for foreign affairs, Yoshitaka Sakurada, gave assurances yesterday that the collision between the nuclear submarine USS Greenville and the fishing training vessel Ehime Maru will not damage relations between Japan and the United States.
The two countries have a long history of collaboration, Sakurada said. U.S. authorities, including Adm. Dennis Blair, commander in chief of the U.S. Pacific Fleet, have “profusely apologized” for having caused the accident, he said.
“It’s very regretful that this (accident) had to happen,” he said. “We are grateful for the efforts made by the U.S. Navy.”
Sakurada then said it was time to move on to the next phase, which is salvaging the ship. He said having the submersible Scorpio locate the ship at the bottom of the sea made the families feel the United States was doing something to salvage the vessel.
The Scorpio found the Ehime Maru 2,003 feet down.
“The families are very grateful (for) all the warm support from the people of Hawaii,” Sakurada said. “They have been a great comfort to the families in their time of grief.”
Sakurada spoke through a translator at a news conference at the Japanese Consulate. He then proceeded to answer one question from each of the six media representatives attending the meeting.
Sakurada said the families of the nine missing Ehime Maru crew members, at a meeting with Japan’s Prime Minister Yoshiro Mori yesterday, reiterated their wish to have the ship salvaged.
“The prime minister promised them that he would do his utmost to have a full investigation of the accident and have the vessel salvaged,” Sakurada said.
Sakurada said he was told by U.S. authorities that the decision to raise the ship hinges on how technically feasible it is.
Responding to reports that civilians may have interfered with the plotting of sonar signals, Sakurada said the Japanese government views such an action as “inexcusable.”
Hawaii lawyer tapped for possible lawsuit
By Debra Barayuga
Personal injury attorney Rick Fried has been contacted by a law firm in Osaka asking him to be lead counsel if retained by the family of one of the still-missing Japanese students from the Ehime Maru.
Fried said yesterday he “would be willing,” but that the family has not yet made a decision.
Civil action, if brought by the victim’s family, would be similar to a Federal Tort Claims Act, which allows the government to be sued by civilians for negligent acts by its employees.
The U.S. government has sovereign authority and, generally, individuals cannot sue a sovereign except under circumstances for which it consents to be sued.
Because the incident happened at sea, the action would fall under the Suits in Admiralty Act or the Public Vessels Act. The amount of damages recoverable under either is similar to the Federal Tort Claims Act, Fried said.
The Suits in Admiralty Act and Public Vessels Act allow recovery of general damages — pain, suffering, emotional distress and the usual recovery under a regular lawsuit — but not any punitive damages.
Even if a judge found the commander of the USS Greeneville acted egregiously, plaintiffs still cannot receive punitive damages from the government, or even the sub commander individually, assuming he was acting within the scope of his employment, Fried said.
The suit must be brought in federal court, and a judge — not a jury — is the trier of fact.
Where and how far off the coast the incident occurred is significant, Fried said. President Ronald Reagan expanded territorial waters to 12 miles. According to reports, the collision occurred about nine miles off Diamond Head.
If the collision did not occur within territorial waters or an argument is made that the territorial waters extend only three miles — the equivalent of a marine league — then the action is brought under another statute, the Death on the High Seas Act, where recovery is more limited than in the other two acts.
Under that act, only pecuniary damages such as medical bills or loss of earning capacity — where damages can be specifically measured — can be recovered, Fried said.
“I think we have a fair argument that we would be governed under the Suits in Admiralty Act with broader recoveries.”
Attorney Eric Seitz, who has handled numerous military cases here, said the U.S. government will probably honor civil claims and, at some point, pay compensation to the victims’ families.
“I think the government, rather than making these people litigate, will settle,” Seitz said. “How and under what circumstances remains to be seen.”
Sub captain not told sonar put boat at 2,000 yards
WASHINGTON — The captain of a U.S. submarine that collided with and sank a Japanese fishing trawler two weeks ago told Navy investigators he was aware of sonar soundings indicating that a ship was in the vicinity before the accident, a newspaper reported.
But the sub’s skipper, Cmdr. Scott Waddle, maintained that when he looked for it through his periscope, he didn’t see anything and was not warned of any danger by a sailor whose job it was to plot positions of nearby ships, the Washington Post said in today’s editions.
The Washington Times, meanwhile, said a confidential Navy report outlines a series of errors made by the crew of the USS Greeneville, stating that the periscope sweep was too brief and not high enough to detect the Japanese vessel.
The report also blamed the presence of civilians inside the control room for disrupting communications between Waddle and a technician tracking the fishing vessel in busy waters near Pearl Harbor, Hawaii.
A less crowded area around the periscope “could have dramatically improved this situation,” the Times quoted the report as saying. The newspaper said excerpts of the report were read to it yesterday by a Navy source.
The Greeneville, a nuclear-powered attack submarine, had 16 civilians aboard when it collided with the Ehime Maru on Feb. 9. The boat, on a cruise to teach commercial fishing to high school students, sank, and nine people were lost at sea. Two civilians were at control positions aboard the Greeneville at the time the sub made an emergency-surfacing maneuver from 400 feet depth, although the Navy says they did not cause the accident.
Nonetheless, Defense Secretary Donald H. Rumsfeld is going to order a moratorium on allowing civilians at the controls of any military ship, aircraft or vehicle, officials said yesterday. Rumsfeld’s spokesman, Rear Adm. Craig Quigley, said the order is a “work in progress.”
“All the services know this is coming,” Quigley said.
On Feb. 14, Rumsfeld was asked whether there was evidence that the civilians played a role in the Greeneville accident. “None whatsoever,” he replied.
The Times said the report of a preliminary investigation conducted by Rear Adm. Charles Griffiths Jr. said his findings “suggest a significant departure from the expected level of professionalism and performance of the ship’s key watchstanders and senior leadership” just before the accident.
The report said there were a “significant number” of crew and guests pushed together on the periscope stand when Waddle and the officer of the deck, Lt. j.g. Michael J. Coen, were trying to locate the ship.
The Post, quoting an unidentified person close to the investigation, said Waddle reported he checked the compass bearings of the ship indicated by sonar readings. He then increased the periscope’s magnification and ordered his sub 2 feet closer to the surface so he could peer over the waves, but he still didn’t see anything.
A sailor had calculated that the Greeneville and the boat were only 2,000 yards apart, but concluded he must have been mistaken because the captain had just pronounced the area clear, the Post said. The sailor then arbitrarily plotted the boat at 9,000 yards away from the sub, the Post said.
The possibility that the presence of civilians could have contributed to the accident is one of the subjects to be examined in a formal Navy court of inquiry.
The Navy inquiry, to have convened Monday in Pearl Harbor, was postponed yesterday until March 5 at the request of attorneys for Waddle.