Adjunct Professor Lawrence Brennan was quoted in a Navy Times article about the legal battle involving collisions of the USS Fitzgerald and the USS John S. McCain.
A year after 10 sailors died when the destroyer John S. McCain lurched left into a commercial vessel outside Singapore, a legal battle rages over who was responsible for the collision and who should pay for it.
So far, 48 McCain sailors and families of the fallen have filed personal injury and wrongful death claims against the owner of the Alnic MC, a hulking oil tanker that collided with the warship inside the bustling Malacca Straits on Aug. 21, 2017, according to federal court records.
Their claims total “well in excess of $60 million,” attorneys for Alnic’s owner, Energetic Tank, Inc., wrote in court filings.
…“We have a pretty good idea of what the arguments are against the McCain and the competence of the crew,” said Lawrence Brennan, a retired Navy captain, military attorney and professor at the Fordham University School of Law in New York. “Those are all locked in the criminal proceedings.”
“We then get into what the Alnic could have done, should have done, to avoid the collision,” he said.
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Assessing how to apportion the blame for their deaths and the damages to both vessels will be key to resolving the legal battle, Brennan said.
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Energetic Tanker’s attorneys fired back that Alnic’s crew never could have avoided a collision caused soley by the McCain.The families of the fallen McCain sailors and their injured shipmates cannot sue the armed forces for negligence under a legal concept known as the “Feres doctrine,” Brennan said.
But they can bring claims against Energetic Tanker, and the company can then seek compensation from the federal government if it is found that both sides were liable for the collision, Brennan said.
…Proving Alnic did nothing wrong “is a high factual threshold,” Brennan said, and collisions rarely result in one side shouldering all the fault.
In fact, if the Alnic is shown to bear even 1 percent of the blame for the collision, the claims against the company can proceed in court, according to Brennan.
Lawyers for Energetic Tank acknowledged in a court filing this month the logistical challenges of a case involving foreign seamen, foreign companies and U.S. sailors dispersed around the globe.
Brennan said such cases are not unusual.
“I can give you hundreds of these cases over the years,” Brennan said. “Probably none as tragic as this.”
Brennan suspects the U.S. government didn’t file its own separate suit for damages against the Alnic’s owners because “there’s a lot of stuff that’s embarrassing.”
“At the end of the day, the United States Navy is going to look bad,” he said.