ASIL Insights

On February 9, 2001, the Ehime Maru, a fishing training boat operated by a Japanese high school, was conducting routine operations about nine miles from the Hawaiian Island of Oahu, when it collided with the USS Greeneville, a US nuclear-powered submarine. The USS Greeneville was conducting an emergency surface drill, with civilian visitors aboard. Somehow, the USS Greeneville failed to notice the presence of the Ehime Maru. After the collision, the Ehime Maru sank within ten minutes. Twenty-six people were rescued, but nine people, including four teenage students, are missing and presumed dead.

At this writing, the precise sequence of events leading to the accident has not been ascertained, but fault appears to be attributable wholly to the USS Greeneville. The United States government has extended formal apologies to Japan and the families of the victims.

In this case there are two levels of analysis, international and U.S. admiralty law.

As far as international law is concerned, the incident calls forth the law of State Responsibility, under which a state may be liable for certain harmful acts. Here the determination of responsibility is not difficult.  Although the chain of events leading to the accident must still be determined, since the USS Greeneville is a U.S. naval vessel, any fault of it is attributable to the United States.¹

The remedy is unclear. Compensation must be paid to the families involved, but how much? Arguably, American law should be used as a measure, but here the sum would be in dispute (see below). The doctrine of restitutio in integrum would also mandate payment of the replacement value of the vessel to the owners of the Ehime Maru, but the Japanese are asking that the vessel be raised, if only to recover the remains of the deceased and their personal effects. It is not always feasible to carry out "restitution in kind."  Nevertheless, there are many cases where restitution or specific performance has been granted. In the Chorzow Factory Case,² involving a claim by Germany against Poland arising out of the expropriation of a factory, the Permanent Court of International Justice held that: "reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."³

Even though international law probably would not require the raising of the ship, respect for Japanese religious traditions, which require reverence for the mortal remains and even personal effects of the dead, would call for an effort to raise it. Similar traditions are found even in the West: in Book VI of Vergil's Aeneid, the souls of the unburied cannot enter the world of the dead.

International law does recognize the duty of a state to remedy a non-material loss. For example, in the Janes claim⁴ the award included a sum to compensate for "indignity" caused by the failure of the Mexican government to pursue the murderer of an American citizen. In the Rainbow Warrior incident involving New Zealand and France, the remedy included an agreement that the agents responsible for the sinking of the Rainbow Warrior be imprisoned for a period of time. To resolve this issue in the current case, a possible course of action would be to refer the matter of the raising of the vessel and/or recovery of remains to an independent arbitral panel composed of experts from both countries.

A second level of analysis is the liability of the United States under U.S. Admiralty Law. Here suit could be filed in U.S. District Court against the United States for damages under the Public Vessels Act.⁵  The plaintiffs would be those injured and the personal representatives of the deceased. The plaintiffs would have to establish "reciprocity," in the sense that if a similar incident happened involving a Japanese public vessel causing injury or death to Americans, they would be able to sue the Japanese government in Japan.⁶  This they would be able to do under Japanese law.⁷

A major uncertainty concerns the damages the death plaintiffs would be able to claim under U.S. law. The accident happened about nine miles offshore. This could call into play the Death on the High Seas Act (DOHSA),⁸ which applies to deaths "on the high seas beyond a marine league" (3.45 miles) and which limits recovery to pecuniary losses. However, last year the U.S. Court of Appeals for the Second Circuit, considering damages in the TWA Flight 800 crash eight miles off Long Island in 1996, held that DOSHA does not apply to federal or state territorial waters, even if they extend beyond a marine league.⁹  Since federal territorial waters have extended to 12 miles since 1988, the court held DOSHA inapplicable. 

Any litigation arising from the Ehime Maru incident would, in all likelihood, occur outside the Second Circuit. Consequently the holding in the TWA case would not be binding on the court hearing this case. But if the court were inclined to follow the TWA precedent, many of the plaintiffs might be able to recover additional non-pecuniary damages under the general maritime law and state law as well.¹⁰

Endnotes:

1.  The responsibility of the state may arise from negligent acts of its military officers. See the Zafiro Claims: Great Britain v. United States, 6 U.N. Reports of Int'l Arb. Awards (UNRIAA) 160 (1925).
2.  1928 PCIJ (ser. A), No. 17.
3.  An example is the Temple of Preah Vihear Case, 1962 ICJ Rep. 6, in which the International Court of Justice ordered Thailand to return art objects to Cambodia.
4.  United States v. Mexico, 4 UNRIAA 82 (1925).
5.  46 U.S.C sect.781.
6.  United States v. Continental Tuna Corp., 425 U.S. 164 (1976).
7.  Kokka Baisyou Ho, Article 6.
8.  46 U.S.C. sect.761 et seq.
9.  In re Air Crash off Long Island, New York, 209 F. 3d 200 (2d Cir. 2000).
10.  See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996).

About the Author: 
Thomas J. Schoenbaum is the Dean and Virginia Rusk Professor at the University of Georgia, and is the author of the leading treatise, Admiralty and Maritime Law, now in its third edition.  He has consulted in the past with the Japanese Ministry of Foreign Affairs, but has no current connection with the Ehime Maru incident.