Dozens of US Navy sailors intend to continue their nine-figure legal fight against NYK Line, after a judge sided with the shipping giant in a legal dispute over a 2017 crash.
In dismissing their complaint on Thursday last week, New Orleans federal Judge Lance Africk ruled that neither the injured sailors nor the families of those killed aboard the USS Fitzgerald — which collided with the 2,858-teu ACX Crystal (built 2008) — can take legal action in the US courts against the shipowner as the case falls outside their jurisdiction.
Africk ruled that while NYK does business in the US, it was not legally "at home" in the country.
"NYK Line's contacts with the United States are not so continuous and systematic as to render this an exceptional case in which a nonresident corporation is essentially 'at home' in a place other than its place of incorporation or principal place of business," he wrote.
"NYK Line cannot be deemed 'at home' in every country where it conducts business."
Forty-two injured sailors and the families of seven deceased sailors sued NYK Line in New Orleans federal court in November 2019, seeking more than $260m in damages.
The highly-contentious crash took place in the early morning hours of 17 June, 2017 roughly 77 nautical miles southwest of Tokyo and saw the ACX Crystal tear a hole in the USS Fitzgerald's hull, flooding the area where sailors were sleeping. It was the Navy's greatest loss of life since 1975.
The Japan Transportation Safety Board said the USS Fitzgerald's watch was distracted and that it had incomplete radar data on the ACX Crystal. A US Navy investigation took issue with the warship's watchstanders and leadership and a later investigation found shorthanded officers and mistrust among crew.
In the NYK lawsuit, the injured sailors sued for damages related to mental illness, physical injuries or both. The families of the deceased sued under the Death on the High Seas Act. They allege the ACX Crystal did not abide by the International Rules of the Road by failing to blast its horn five times and never attempted to evade the warship.
They argued in part that NYK's use of US seaports and airports, its US bank account, its indirect ownership of companies that conduct business in the US, its use of US courts and its regulation by the US Federal Maritime Commission meant the company could be sued in US courts.
Africk said that constitutes just a small part of NYK's business — at a maximum, just 8% of all NYK's port calls happen in the US — and that magnitude is not the only consideration. He said that allowing the lawsuit to continue would make any company that does business in the US subject to general jurisdiction in its courts.
The sailors' attorney, David Schloss of Koonz McKenney Johnson & DePaolis, said they intend to appeal.
He said that NYK applied a "double standard" by litigating matters in US courts, then arguing they cannot be subject to them.
"It simply cannot be the case that the United States has no interest in providing a forum for the seven families who lost their loved ones and the more than 40 Fitzgerald sailors who suffer debilitating physical and psychological injuries, all in the name of serving their country," Schloss said in a statement to TradeWinds.
"While we are well past the point where we expect NYK Line to 'do the right thing' from a legal and moral standpoint, we intend to vigorously pursue this matter for as long as it takes until justice is served."
NYK Line declined to comment, only to say that has cooperated with the crash investigation and that its "thoughts and deep concerns" go out to those affected.
