USS Fitzgerald lost situational awareness in the hours preceding the fatal collision.?The ship’s CO, XO, and CMC are being relieved for cause

Two crucial issues are the assumption that collisions should not happen and the lack of situational awareness for hours prior to the casualty.

This is a complex and troubling casualty which clearly goes well beyond the measure of individual failures. Institutional shortcomings contributed to the conditions on board ship that early morning. As Admiral Moran noted the lack of situational awareness was a long existing condition-for hours prior to the collision. The officers and sailors may not be the only culpable people. The lack of education and training appear obvious. 

·        Prosecution of the Commanding Officer, Executive Officer, and Command Master Chief is likely. Charges may include seaman's manslaughter in violation of 18 U.S.C. § 1115, in addition to dereliction of duty, hazarding a vessel, and orders violations.  

The overview of the facts and timeline are helpful in forming a general view of the faults attributable to USS Fitzgerald. Most experts and admiralty courts recognize that collisions between moving vessels rarely are solely the fault of one ship. Thus, it is probable that MV ACX Crystal also would bear some percentage of fault for the casualty. 

The collision between USS Fitzgerald and the Philippine flag containership, MV ACX Crystal perhaps is the most troubling surface collision suffered by the US Navy in more than 40 years since the cruiser USS Belknap (CG 26) collided with the aircraft carrier USS John F. Kennedy (CV 67) in the Mediterranean Sea on 22 November 1975 resulting in the death of one sailor on board JFK and seven crew members of Belknap, which required nearly five years to rebuild. The cruiser’s Commanding Officer and Officer of the Deck both were prosecuted.

In addition to the Belknap/John F. Kennedy collision nearly 42 years ago, the most well-known case was the trial of Captain McVay who commanded USS Indianapolis (CA 35) which was torpedoed and sunk at the end of World War II. Acquitted of the charge of disobedience of orders because he failed to zig zag, McVay was convicted of hazarding a vessel. Like most cases, there is no suggestion that hazarding was intentional. That leads to the long-simmering legal dispute, may a seaman be convicted of “negligently” hazarding a vessel where he or she lacks criminal intent. The mere occurrence of a casualty does not, ipso facto, result in criminal culpability.

The U.S. Navy admits that the leadership of USS Fitzgerald lost situational awareness in the hours preceding the fatal collision. The ship’s leadership triumvirate are being relieved for cause; they and other crew members face punitive action.

By: Lawrence B. Brennan, Adjunct Professor of Law, Fordham Law School

Two months after the collision which killed seven members of the crew of USS Fitzgerald, the Vice Chief of Naval Operations, Admiral Bill Moran, announced that the ship’s Commanding Officer, Cmdr. Bryce Benson, Executive Officer, and the Command Master Chief all will be relieved for cause. Admiral Moran stated that they ship’s leadership lost situational awareness in the hours preceding the fatal collision. Cmdr Bryson, who was injured in the collision, the bridge and combat watch standers, and others in leadership positons face punishment in addition to relief for cause, which alone is normally a career ending event. It is probable that some of the officers may face a General Court Martial. 

Admiral Moran acknowledged that collisions should never happen and concluded that, "We got it wrong." The relief of the senior leadership and watch team was made because the investigation indicated serious mistakes were made by the crew, Moran said. The Navy has lost confidence in those sailors, the traditional standard for relief for cause.

The Seventh Fleet announced the removal of the three leaders on Friday, August 18, 2017. That release, captioned “USS Fitzgerald Accountability Determinations” stated, “The collision was avoidable and both ships demonstrated poor seamanship. Within Fitzgerald, flawed watch stander teamwork and inadequate leadership contributed to the collision that claimed the lives of seven Fitzgerald Sailors, injured three more, and damaged both ships.” 

The absolute accountability actions included relief of the executive officer and command master chief who allegedly “contributed to the lack of watch stander preparedness and readiness that was evident in the events leading up to the collision.” There was no indication that either was involved in the navigation of Fitzgerald at the time of the incident. The Commanding Officer had “absolute accountability for the safe navigation of Fitzgerald.”

As to the watchstanders involved, Seventh Fleet stated, “Several junior officers were relieved of their duties due to poor seamanship and flawed teamwork as bridge and combat information center watch standers. Additional administrative actions were taken against members of both watch teams.” This indicates that they probably were “awarded” non-judicial punishment at Flag Mast under Article 15, Uniform Code of Military Justice.   

The former Commanding Officer “is being reassigned to Naval District Washington at the Washington Navy Yard, where he will have access to medical facilities in the area.” Historically, major courts martial are tried in Washington. 

Two crucial issues are the assumption that collisions should not happen and the lack of situational awareness for hours prior to the casualty.

The International Rules of the Road (COLREGS) set forth the standards for vessels which are based not merely on the need to avoid collision but on the standard of avoiding the risk of collisions. Rule 7 of the COLREGS requires every vessel ”to use all available means appropriate to the prevailing circumstances and conditions to determine if the risk of collision exits.” The ISM Code and other similar regulations and agreements likewise are predicated on the duty to avoid the risk of collision. Training and implementation must be based on the correct standard.

Situational awareness is an aviation concept that has been accepted into admiralty and maritime law. It has been become the basis for determining that a vessel is unseaworthy thus denying the shipowner limited liability under the 1851 Shipowners Limitation of Liability Act. Furthermore, the ship operator who caused the casualty because of his lack of situational awareness along with the shoreside manager can be convicted for maritime homicide.

 In the Staten Island Ferry fatal allision cases, the Second Circuit Court of Appeals affirmed the findings that the City of New York, as owner of the ferry, was liable without limitation of liability to the 76 injured passengers and the estates of the 11 deceased. 

The ferry pilot plead guilty to eleven counts of seaman's manslaughter in violation of 18 U.S.C. § 1115, In a similar way, “the City's director of ferry operations at the time, was also indicted on eleven counts of seaman's manslaughter and several counts of making false statements and obstruction of justice. On April 25, 2005, he pleaded guilty to seaman's manslaughter for allowing the ferries to be operated in a criminally negligent manner by not enforcing the City's internal ‘two-pilot rule’ that ‘generally required the captain and assistant captain to be together in the operating pilot house while the [ferry was] underway,’ and to making false statements to the Coast Guard about his practices when he was a ferry captain. [He] was sentenced to one year and one day in prison.”

In holding the City liable without limitation, the Court of Appeals explained:

In determining what the standard of reasonable care requires, we are mindful of the formula first stated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947): whether the burden of adequate precautions (B) is less than the gravity of the injury (L) discounted by the probability that the injury will occur (P), i.e., whether B

The gravity of the potential injury if a ferry carrying more than a thousand commuters were to crash at full speed is well illustrated by the harm actually done in this case — the loss of eleven lives, injuries to many more, and substantial property damage.

The burden to the City of taking adequate precautions is relatively small. The district court determined that enforcing a two-pilot rule requiring Gansas to be in the pilothouse with Smith at all times would have avoided the accident because Gansas could have taken control of the ship once he noticed that Smith was incapacitated. The Staten Island Ferry already employed two licensed captains for the Barberi, as it was required to do by Coast Guard regulations, so the cost of the additional precaution in this case would not have involved hiring another licensed officer. Instead, the cost is reflected in whatever activity the second captain would have to forgo while the ship is underway in order to be in the pilothouse — in this case, for example, Gansas was preparing for a Coast Guard inspection during the trip so that preparation would have to be done at another time or by another employee — and by any displeasure felt by the City's employees at the inconvenience of having to be present in the pilothouse at all times. On balance, the burden to the City of having a second person in or near the pilothouse at all times is relatively small.

The probability that the injury would occur in this case — that the pilot would become suddenly incapacitated at a crucial moment and remain incapacitated long enough for the ship to crash into something — is very small. But the risk, while small, is undoubtedly foreseeable. The City freely admits that it was aware of the possibility that a pilot could become suddenly incapacitated, just as any reasonable person would be aware of that possibility. Nevertheless, the City submits that sudden incapacitation is a foreseeable risk that we accept all the time in myriad contexts without demanding stringent precautions. For example, every day millions of people drive cars without first ensuring that there is someone who will take the wheel if they are suddenly incapacitated. And the City points out that in other forms of mass transportation, such as buses and trains, we generally accept the risk that a driver could be suddenly incapacitated without ensuring that a second driver is waiting, ready at the controls to take over. Surely the risk of death is at least as great with a bus traveling at 70 miles per hour on a crowded highway as with a ferry traveling 18 miles per hour in a harbor. Yet we do not require two drivers on a bus.

In re CITY OF NEW YORK, as owner and operator of the M/V Andrew J. Barberi, 522 F.3d 279 (2d Cir. 2008)

 The portion of the Navy investigation released now did not fully address the facts surrounding the collision and the faults attributable to both vessels. The overview of the facts and timeline are helpful in forming a general view of the faults attributable to USS Fitzgerald. Most experts and admiralty courts recognize that collisions between moving vessels rarely are solely the fault of one ship. Thus, it is probable that MV ACX Crystal also would bear some percentage of fault for the casualty. 

           The collision between USS Fitzgerald and the Philippine flag containership, MV ACX Crystal perhaps is the most troubling surface collision suffered by the US Navy in more than 40 years since the cruiser USS Belknap (CG 26) collided with the aircraft carrier USS John F. Kennedy (CV 67) in the Mediterranean Sea on 22 November 1975 resulting in the death of one sailor on board JFK and seven crew members of Belknap, which required nearly five years to rebuild. The cruiser’s Commanding Officer and Officer of the Deck both were prosecuted.

Fitzgerald, with a crew of about 300, was underway in the Sea of Japan approximately 56 nautical miles southwest of Yokosuka, at the time of the collision bound for Subic Bay in the Philippines generally on a course of 230 at a speed of 20 knots. The sea was calm, and the moon shone through broken clouds. The ship was showing its navigation lights. The Commanding Officer was off of the bridge.

ACX Crystal was the larger ship at 728 feet and 29,000 tons, compared with Fitzgerald’s 505 feet and 9,000 tons. The port side of Crystal’s bow briefly contacted Fitzgerald above the waterline, and the bulbous bow below the surface penetrated Fitzgerald near Berthing 2, which flooded within 30 to 60 seconds. Fitzgerald rolled heavily before settling into a 7-degree list to its starboard side.

           There was no advance warning of the collision to the crew. Neither the General Quarters nor collision alarms were sounded; the Commanding Officer remained in his in port cabin where he was trapped by the collision damage. Two minutes after collision was the first time that the Collison Alarm was sounded. For the first time, 13 minutes after collision General Quarters was set. In addition to the seven men killed by the collision damage in Berthing 2, nearly half an hour after the collision three crew members were reported trapped in Sonar Control.

The first report of the casualty was made by Fitzgerald to Commander Destroyer Squadron 15 by personal cell phone at approximately 0220, 50 minutes after impact. This suggests that Fitzgerald may have been unable to operate its electronic communications to transmit the required urgent message when a ship suffers a major casualty. The lack of communications, however, was reported to have occurred later. Even the current Navy timeline appears to be inconsistent showing that the cell phone call was made at either 0200 or 0220, either 30 or 50 minutes after the collision. In any event, it appears that US Navy has agreed that the collision occurred at 0130 and not nearly an hour later as first stated. 

           The first indication of missing sailors occurred 54 minutes after the collision from departmental musters. Four hours and 13 minutes after collision Fitzgerald completed a second all-hands muster and seven Sailors were missing.

An hour and ten minutes after collision Fitzgerald reported loss of communications and loss of propulsion. If the ship had communications until this time it is inexplicable why a personal cell phone was required to make the belated first report of casualty at either 0200 or 0220.

           Two hours and five minutes after the collision, Fitzgerald’s starboard shaft was locked.

            Two hours and 47 minutes after collision there was the first mention of the colliding vessel, a Large merchant identified as “HCX Crystal.” The ship’s proper name was ACX Crystal. 

           Three hours and 23 minutes after the collision, Fitzgerald again was underway under its own power at 3 knots.

           Six and a half hours after collision, Fitzgerald switched to paper charts due to loss of navigation systems. It is not clear when loss of electronic navigational systems occurred and what systems the ship was using at and after the time of the casualty.

           Nearly 17 hours after the collision Fitzgerald tied up at Yokosuka Naval Base.  The bodies of the seven dead crewmembers were recovered promptly.

           This is a complex and troubling casualty which clearly goes well beyond the measure of individual failures. Institutional shortcomings contributed to the conditions on board ship that early morning. As Admiral Moran noted the lack of situational awareness was a long existing condition-for hours prior to the collision. The officers and sailors may not be the only culpable people. The lack of education and training appear obvious. 

Further legal proceedings appear probable for the former Commanding Officer, Executive Officer, and Command Master Chief. In major ship casualty cases, the Commanding Officer and the Officer of the Deck have been charged with hazarding a vessel, dereliction of duty, and violations of orders. In this fatal case, however, additional charges of maritime homicide, under federal criminal law, may be considered. An Article 32 Hearing, which is a prerequisite for trial by general court martial, is analogous to a grand jury inquiry. The Article 32 hearing is a fully adversarial proceeding unlike a grand jury. It may be public, except for areas involving classified information. The charges would have to be “referred” to trial by the Convening Authority, probably the Secretary of the Navy or Chief of Naval Operations. While the public statements of the Vice Chief of Naval Operations and Commander, Seventh Fleet regarding the collision and responsibility may be necessary, senior officers must be careful to avoid even the appearance of influencing prospective members of the court (who serve as “jurors”).

In this case, as in many maritime causalities, the culpability may not be isolated to the bridge or to the ship. The Fitzgerald collision highlights the tension between individual and institutional culpability. If the allegations against the Commanding Officer, Executive Officer, and Command Master Chief were true, what steps did their seniors undertake when they subjected the forward-deployed missile destroyer to observations, tests, and exercises. The squadron, strike group, fleet, and Pacific Fleet commands all had the opportunity and responsibility to ensure the proper and safe operational capabilities of the officers and crew of Fitzgerald. That is the fundamental issue which must be addressed to ensure safety at sea.

This may be the first time a Command Master Chief has been accused of criminal acts that led to a ship collision when he or she was not part of the navigation team. Prosecution of the Commanding Officer and Officer of the Deck are infrequent. In addition to the Belknap/John F. Kennedy collision nearly 42 years ago, the most well-known case was the trial of Captain McVay who commanded USS Indianapolis (CA 35) which was torpedoed and sunk at the end of World War II. Acquitted of the charge of disobedience of orders because he failed to zig zag, McVay was convicted of hazarding a vessel. Like most cases, there is no suggestion that hazarding was intentional. That leads to the long-simmering legal dispute, may a seaman be convicted of “negligently” hazarding a vessel where he or she lacks criminal intent. The mere occurrence of a casualty does not, ipso facto, result in criminal culpability.

A key element of US maritime law, since the time that Commodore Perry brought the Black Ships to Japan, is the Shipowners’ Limitation of Liability Act. Under the 1851 Limitation Act, a shipowner may limit its liability for losses occasioned by causes beyond its “privity and knowledge”. Frequently, this has been applied to cases involving errors in navigation such as collisions and groundings. The Limitation Act, long in judicial disfavor, was predicated on the impossibility of communications by shipowners beyond the horizon. Now commercial shipowners and navies have instantaneous world-wide communications. Admiralty lawyers have extensive experience in tracing back navigational errors and other faults to conditions of unseaworthiness that the shoreside operators knew or should have known. 

Following destructive typhoons at the end of World War II, Fleet Admiral Nimitz wrote, “Commander in Chief, Pacific Fleet wishes to emphasize that to insure safety at sea, the best that science can devise and that naval organization can provide must be regarded only as an aid, and never as a substitute for the good seamanship, self- reliance, and sense of ultimate responsibility which are the first requisites in a seaman and naval officer.”

Seventh Fleet’s release of its accountability actions concluded with praise for the officers and crewmembers. “the entire Fitzgerald crew demonstrated real toughness that night. Following the collision these Sailors responded with urgency, determination and creativity to save their ship. Their rigorous damage control efforts and dauntless fighting in the immediate wake of the accident prevented further loss of life.”

           Even though Fitzgerald was not using a pilot at the time of the casualty, the comments, nearly a century ago, by the then Assistant Secretary of the Navy, Franklin D. Roosevelt, still apply. “The proper place for the captain of a ship in pilot waters is on the bridge. The captain is at all times responsible for safe navigation whether a pilot is on board or not. In this case it is probable that if the captain had been on the bridge more judicious action might have been taken * * * .”