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Burden of Proof

Examining the Collision of a U.S. Sub and Japanese Fishing Vessel

Aired February 26, 2001 - 12:49 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: A Navy court of inquiry looks into the sinking of a Japanese fishing vessel. Today on BURDEN OF PROOF: a tidal wave of questions. How did a U.S. submarine rip open the boat's hull and drop it to the depths of the Pacific Ocean? And did a tour of civilians distract the crew in an emergency surfacing drill?


MICKEY NOLAN, CIVILIAN PASSENGER: All of a sudden we had a boom. I mean, if you could imagine the sound boom, and whoever came up with the word, this is what they had to hear, because it was, to me, very loud.

CAPT. JOHN D. PETERS, U.S. NAVY (RET.): If the civilian did something wrong and moved the stick, it wouldn't do anything in the time it took for the sailor to say, "Get your hands off."

JOHN HAMMERSCHMIDT, NTSB: One guest, however, said that she recalled seeing a ship in the display at some point during the periscope sweeps. She also said that she had viewed the Ehime Maru in a similar display in the crew mess after the accident, and that the ship she saw during the periscope sweeps was not the Ehime Maru.


ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

A fourth officer on board the USS Greeneville will be scrutinized for his actions when the submarine collided with a Japanese fishing boat on February 9. But he has not been named as a subject of the inquiry. Captain Bob Brandhuber is the chief of staff for the Pacific Submarine Forces and hosted the civilian guests on board the sub. Since he is not a party to the investigation, Brandhuber will not be provided legal representation, military officials have told CNN.

Three other officers aboard the Greeneville have been named as subjects: Commander Scott Waddle, Lieutenant Commander Gerald Pfeifer and Lieutenant Commander Michael Coen. Next week a Navy court of inquiry will begin investigating details of the accident. Nine people from the fishing ship are missing and presumed dead; 26 others were plucked from the sea.

Joining us today from New York is maritime law attorney Lizabeth Burrell. Here in Washington: Brian Jones; former Navy defense attorney David Sheldon; and Jim Hall, former chairman of the National Transportation Safety Board. In the back row: Chris Kenny (ph) and Tom Donati (ph).

And joining us from Honolulu is CNN national correspondent Martin Savidge.

Marty, what's the latest in the investigation in Hawaii?

MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: Well, the latest right now, Greta, is they're simply waiting for the official court of inquiry to get under way. As you mentioned, that is scheduled to begin one week from today.

The Navy's preliminary report has been leaking in various forms, coming primarily from Washington, D.C. There are three areas that it seems to be honing in on right now: one the question about the congestion of civilians on board that submarine, 16 of them said to have been crowded into the very tight quarters of the control room of the submarine -- also some questions raised about the weapons technician officer. That was his job: to keep track of all the surface contacts.

There are indications that he may have miscalculated or misinformed the commanders of that submarine as to the close proximity of the Ehime Maru. And then also there's some questions being raised about the depth of the submarine when it performed its periscope sweeps. The Navy seemed to imply that it was not at a high enough elevation considering that the wave conditions were in the area.

And, also, the NTSB has pointed out a sonar repeater that was not functioning on the submarine. The NTSB did not seem at the time to think it was significant. However, there are other people in the Navy that say it was a very significant piece of equipment that the commander could have used.

VAN SUSTEREN: Jim, you're former NTSB. Tell me, what is the jurisdiction of the NTSB? We have got the Navy doing one inquiry. What is the role of the NTSB?

JIM HALL, FORMER NTSB CHAIRMAN: Well, the NTSB's jurisdiction extends over accidents involving public vessels owned by the United States, and nonpublic or civilian vessels, as was the case with the Japanese fishing boat.

VAN SUSTEREN: Do you anticipate any sort of territorial battles in terms of getting forward with this investigation?

HALL: I would imagine that our investigators will do a very thorough job, as they are trained to do, and that the Navy would and should cooperate fully with the NTSB investigation.

VAN SUSTEREN: David, the investigation of the Navy starts next week. This inquiry, is this a criminal investigation?


Interestingly, the Navy could have convened an Article 32 hearing to initiate charges at a general court martial, and chose not to do this.

VAN SUSTEREN: Is that possible it may occur later?

SHELDON: Yes. A court of inquiry is significant because the Navy can now subpoena civilian witnesses, as well as bring in military members, if its in its cognizance.

VAN SUSTEREN: Lizabeth, let's talk about the people -- the estate of the people who are missing or presumed dead. Do they -- these Japanese citizens, do they have a cause of action under maritime admiralty law against the United States?

LIZABETH BURRELL, PROCTOR AT ADMIRALTY: They would have to proceed under the Public Vessels Act. And the one question that would need to be resolved for them to go forward with such a suit was whether or not the Japanese government or the Japanese court would extend a similar right of action to an American citizen who was in the same position as the Japanese citizens are here -- in other words, an American citizen who suffered injury or death as a result of the public vessel of the Japanese being somehow at fault.

VAN SUSTEREN: And do you know if they do?

BURRELL: I do not. I looked into that question. But the only case that's ever gone to a decision under the Public Vessels Act that involved a Japanese entity as the claimant didn't address the question of whether or not there was reciprocity. And special circumstances may have applied there. So that's an open issue.

VAN SUSTEREN: Jim, you know, I just don't get it. Maybe you can help me out. I mean, the ocean is an awful big place. What are the odds that you are going to surface and hit a fishing vessel? Do you have any preliminary explanation as to how this happened? Or is it a convergence of just many bad things?

HALL: Well, obviously, in the board's history, only once before, in 1989, when a sub surfaced, entangled in -- with a commercial fishing vessel and then drug it underwater, that's the only other time the board has been involved in an investigation of this nature. I don't know what the Navy records would indicate in terms of accidents.

VAN SUSTEREN: David, do you think this is the end of civilians going on Naval vessels? I had the privilege of being on a Navy aircraft carrier, which I thought was exciting and a magnificent structure. Is this the end of civilians?

SHELDON: No, I don't think it is. I think that it is necessary for the military and armed forces to have civilians and dignitaries on board military ships and armament. It is an extension. I want to go back... VAN SUSTEREN: We only have 20 seconds.

SHELDON: ... in terms of two things. Number one, I think the civilians could file a Military Claims Act claim for damages. Number two, I think the Navy is very, very good about investigating. There have been, you know, these type of cases. And you are going to see the type of conflict between NTSB, which is obviously good in terms of producing and responding and getting information out...

VAN SUSTEREN: And, hopefully -- I'm sorry, but we are out of time. We've got to end short because of the White House briefing. But hopefully we will get to the bottom of this. And I think we will.

That's all the time we have for today. Thanks to our guests and thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.



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