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LEGAL VIEW WITH ASHLEIGH BANFIELD
South Korea's President Calls Ferry Ship Captain's Action "Akin to Murder"; Supreme Court Upholds Michigan Affirmative Action Ban; Flight 370 Lawsuits on Horizon; Captains Who Went Down with the Ship
Aired April 22, 2014 - 12:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ASHLEIGH BANFIELD, CNN ANCHOR: Today's arrest of two more crew members from the capsized South Korean ferry prove authorities want to hold someone accountable, or many people accountable, long before the cause of the disaster's even known.
In radio transcripts and public comments, crew members say they tried to deploy the lifeboats, but the ship was listing too steeply.
The captain didn't order evacuations because the currents were fast, the water was cold and rescue boats might not have been quick enough to get people out of the water before even bigger problems arose.
But he's now charged with abandoning his ship and neglecting his passengers among other crimes. And South Korea's president is not waiting for a trial. She's calling his actions, quote, "akin to murder."
For its part, the ferry's owner has put out a statement that no corporate lawyer in America could possibly approve, and here it is, in English, quote, "We prostate ourselves before the victim's families and beg for forgiveness." I will say that several times they mention accident, but they do say that they're sorry.
Time to bring in my lawyers, defense attorneys and CNN legal analysts Danny Cevallos and Paul Callan.
Paul, I'll begin with you. First things first, most people would say if you're an attorney representing this ferry come, don't say you're sorry, not so soon. Hold off. That could be big trouble down the road.
PAUL CALLAN, CNN LEGAL ANALYST: Unless you're from South Korea.
I mean, this is a -- there's a culture that requires apology, and the teachers, by the way, I don't know if you saw the piece about the teachers who were on the boat who survived, appeared in front of parents at a school on their knees, apologizing to the parents and water bottles were thrown at them. At least there was one press report of that. So, this is part of a custom, I think, in Korea that --
BANFIELD: Then we had that one, you know, survivor who was part of the school who hanged himself.
CALLAN: Yes, also a teacher who was consumed by guilt at the death of the children.
BANFIELD: But, you know, would you be surprised though that this -- obviously, this is a liability waiting to happen at this point.
Perhaps we're still in the mode of trying to find those children's bodies, but you are going to -- undoubtedly, you're going to undoubtedly see many lawsuits in this.
DANNY CEVALLOS, CNN ANALYST: Absolutely. Whether we're talking about Korean law or U.S. law, when you're what we call a common carrier, like the ferry, you are -- you undertake a responsibility to get those passengers somewhere safely.
A lot of people are talking about a captain's obligation to stay with the ship, and that's sort of accurate. Really, most captains have an obligation to help each and every last passenger on board. And they can't really do that if they're leaving the ship. They can't do it with a bullhorn from the safety of a lifeboat. So I think you're going to see some liability there both on the criminal and the civil side.
You know, it's also interesting that South Korea's president or leader came out and made a comment like that. You may remember the Charles Manson trial was almost derailed when the president made a comment on the potential liability or whether he thought people were guilty or not guilty.
It's an interesting things when leaders make a comment on things like liability or criminality. It's something that we try to avoid here and apparently in Korea there are different rules.
BANFIELD: Yeah, as I look at it, Paul, just quickly, the maritime law for South Korea is that the captain has to ensure that his passengers get off safely.
Nobody says that you have to go down with the ship. We're going to talk with our captain later on about that legend and where it came from. But as we saw pictures of him getting off of this ship and onto a lifeboat, there were other lifeboats that hadn't been deployed yet and plenty of passengers who still needed help. Look at the picture.
Right there, you can see him getting off the ship, and there's all sorts of those lifeboats back there, all those little white bundles off to the bottom right-hand side of your screen that hadn't been deployed, that hadn't been set out, and nobody had been put on board them.
CALLAN: You know, I think we like our captains to go down with the ship. We like to know that the person who's running the ship is going to be the last one off, supervising the safety of passengers. But, in reality, it's a factual judgment --
BANFIELD: You see that as murder, though? What the South Korean leader said, murder, akin to murder? CALLAN: No, it doesn't sound like murder to me. It sounds like maybe gross negligence. It might be a form of murder. It could be recklessness. It could be manslaughter.
But making it sound like an intentional murder, I think, at least under American law wouldn't amount to that, but we have to remember the laws are radically different in South Korea. Cultural attitudes are radically different.
So those cultures can't be judged by American standards, and, frankly, that leader is reflecting the views of the people of that country.
BANFIELD: And we're only just at the beginning of this. As we said, there are still almost a hundred or so bodies that have to be recovered from this disaster.
Paul Callan, thank you. Danny Cevallos, thank you. Stick around, other questions for you in just a moment.
A major ruling today from the nation's highest court, and, yet again, it's on affirmative action. So you thought they'd already ruled on this? Well, guess what. Something entirely new and different, and it's coming to a state near you more than likely. We're going to break down what it all means, next.
BANFIELD: Another big ruling today from the highest court in the land on race and college admissions, in a six-to-two decision, the justices upheld a ballot measure that was passed by voters in Michigan back in 2006.
That initiative forbids discrimination or preferential treatment in public education or employment, quote, "on the basis race, sex, color, ethnicity or national origin."
A federal appeals court had thrown the law out, saying that it violates the Constitution's equal protection clause. But the Supreme Court said that lower court was wrong.
Our senior legal analyst Jeffrey Toobin joins me now on the phone to break it down.
Let's make this real simple, Jeff, and that is this. Affirmative action in Michigan is something the voters didn't like, and now the Supreme Court says the voters have the right to vote on anything they want when it comes to this?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (via telephone): That's basically it. That's right.
The University of Michigan was given permission by the United States Supreme Court to use race as one factor in admissions to achieve diversity, which the Supreme Court said was a legitimate purpose in admission. In response to that, 58 percent of the voters in Michigan said we don't want that affirmative action. We don't want any sort of consideration of race in admissions. In today's decision, the Supreme Court said that's OK, that we have said earlier that affirmative action is permissible, but it's not required, so the state of Michigan can get rid of it if they like.
BANFIELD: So let's say I am in the state of California, or let's say I'm the state of Utah, and I'm watching this.
Does that mean that I as a government can just create a ballot initiative and do the exact same thing that Michigan just did and get rid of affirmative action, once and for all?
TOOBIN (via telephone): I think that's right. I think that's the message of today's decision, and it's not just a ballot initiative.
I mean, certainly the logic of today's decision would suggest that a state legislature tomorrow could say we want to pass a law forbidding our universities, forbidding our high schools, from considering race admissions, and it certainly seems that that would be permissible under today's decision.
BANFIELD: Just one quick question to wrap it up, and that is this. For those who think that affirmative action is part of equal protection, affirmative action is critical and that this country is not yet out of the woods and requires affirmative action, what's their next step in this battle?
TOOBIN (via telephone): Their next step is fight it out, state by state, and say we want to keep it.
But I think what's so significant about today's decision is that it's really going to return affirmative action to the political world, that state legislatures, voters, are going to have to take a stand on affirmative action in many states. And that's an issue that's sort of been off the table for a long time. As a result of today, it's right back on.
BANFIELD: Jeffrey Toobin, as always, making the complex seem very simple. Thank you for that.
So we've got a critical milestone in the search for missing Flight 370. Enough time has now passed officially for United States lawyers to reach out to families would may want to sue over this whole debacle.
That LEGAL VIEW is coming up, next.
BANFIELD: Some new developments in the search for Flight 370. The Malaysian jetliner has now been missing for 46 days and the underwater drone that's been searching for it is on its tenth mission but all missions leading up to this one have absolutely found nothing. Not a trace. The Bluefin-21 drone has scanned two-thirds of the intended territory at the bottom of the Indian Ocean. And officials who were supposed to meet with Chinese families today have yet again postponed that meeting.
That 46 day rule, I mentioned that, I mentioned 46 days, that could be kind of critical since that plane vanished because it's a somber milestone. It may just be the day that you got to wait until, at least in America, if you're an attorney, before you contact the loved one of an air disaster. There's a federal law that bans early contact between attorneys and victim's families. Danny Cevallos and Paul Callan are back with me.
This is sort of a nebulous issue because this is not an American crash. There are state laws, there are federal laws. This happened on the other side of the world. Have we yet assessed whether it applies to lawyers here who want to ambulance chase there?
CALLAN: It's a very interesting question. And there's a Chicago law firm that was out drumming up clients and they said, hey, that 45 day rule only applies to accidents which occur in the United States. This is a foreign crash. It's not a U.S. crash.
However, the wording here is very vague. And other lawyers look at this and say, there may be a lawsuit against Boeing, and the claim would be that Boeing constructed the plane in the United States and, hence, acted and contributed to the accident in the construction of the plane in the United States. So that link the accident physically back to the United States and possibly this 45-day rule does apply. So I'd be real careful if I was a lawyer in trying to get one of these cases.
BANFIELD: And let's be real clear here, this is all about the lawyers reaching out. If anybody over in Malaysia or in China or in Indonesia, if they wanted to reach out and sue, boy, they could file any time. They could have filed a day after it disappeared. So this doesn't apply to them being allowed to sue. This applies to lawyers and their conduct, correct?
CEVALLOS: Yes, we need to make this clear. Whether or not it applies, if a potential plaintiff wants to contact a lawyer, they can always do so. There's nothing that's going to prohibit it. These are rules about what we call solicitation.
And even if federal law didn't apply, an American lawyer is always going to be bound by whatever state he practices in. That state - Pennsylvania, New York -- is going to have individual rules about ethically what lawyers can do when they solicit potential clients. So that's always going to apply to any American lawyer irrespective of what state he's in.
BANFIELD: Paul, even though you said I'd be real careful if I were a lawyer, do you expect that now we've had --
CALLAN: Well, of course, I am a lawyer, but -
BANFIELD: You are a lawyer.
BANFIELD: And you're a careful one at that.
BANFIELD: And a professor. So do you suspect, though, that there will this be onslaught of the typically called ambulance chasing lawyers now that they've passed the 45-day mark?
CALLAN: Oh, absolutely. They'll be - you know, and the reason for this non-solicitation rule is that when people are in grief over - in a tragedy, you don't want these lawyers swooping in to try to take advantage of them when they're emotionally distraught. But I will tell you, this Chicago firm, once again, that was at the forefront of this, hired a Chinese lawyer and the same rule doesn't apply to Chinese lawyers and they say he's already signed up a bunch of people. So --
BANFIELD: Same rules don't apply, let's be clear.
CALLAN: That's right, because it's a Chinese lawyer.
BANFIELD: Same rules don't apply to lawyers everywhere else in the world.
CALLAN: Yes. That's right.
BANFIELD: But if they want to work in this jurisdiction, they've got to align with somebody who's at the bar where they want to file (INAUDIBLE).
CALLAN: Forty-five day rule, I would apply to U.S. lawyers, yes.
BANFIELD: All right, guys, thank you, Paul Callan, Danny Cevallos, as always.
Want to take you back to one of our top stories now. The captain of the South Korean ferry under fire for leaving the ship before everyone else was able to leave the ship safely. You have probably heard over and over the legend of the captain going down with the ship. But is it true? Is that really what they have to do? And where on earth did that come from anyway? Does it have anything to do with being rooted in law? That's next.
BANFIELD: The captain of the South Korea sunken ferry charged with abandoning the ship and leaving his passengers to fend for themselves. This is so contrary to the legends you've heard so often. The ship is in trouble, women and children off first, then the men. That tradition actually started back in 1852 when the HMS Birkenhead, a British ship carrying troops, began to sink off the coast of South Africa.
The captain and military offices on board famously allowed the women and children to board the lifeboats first. The captain and many of the troops stayed on the ship until the last, dying in the ocean. Sounds very chivalrous, somewhat romanticized in pop culture, as well in movies. And we're about to tell you what's really behind it in just a moment. But first, Randi Kaye looks at the heroic captain who went down with the ship and the ones who did not.
RANDI KAYE, CNN CORRESPONDENT (voice-over): He is blamed for one of the worst maritime disasters of all time. But to some, Captain E.J. Smith is a hero. He had already turned in for the night aboard the Titanic when his crew told him they'd hit an iceberg. It was April 1912 and the Titanic was on its maiden voyage. When the ship started to sink off the coast of Canada, Captain Smith ordered the crew to prepare lifeboats.
EDWINA TROUTT, SURVIVOR OF TITANIC DISASTER (voice-over): They gave an order, all passengers put on your life preservers, get up on boat deck, leave everything and they said it was a precautionary measure.
KAYE: Captain Smith ordered women and children be evacuated first and helped save more than 700 people. He was on the bridge as the ship disappeared, lost among the 1,500 people who perished.
Decades later, in 1956, an Italian vessel, the Andrea Doria, collided with another ship off Nantucket. Captain Piero Calamai had made a series of errors in dense fog and heavy traffic. Yet when the Andrea Doria began to sink, the captain tried to make sure all the passengers and crew were evacuated. Forty-six people died. He wanted to go down with the ship and pay for his mistakes, but his officers talked him out of it. The captain was the last person off and never commanded another vessel again.
The tale of another Italian ship ended very differently. In 2012, when the Costa Concordia ran aground off the coast of Italy, 32 people died. Captain Francesco Schettino got off the ship with hundreds still on board. He says he fell and tripped into a lifeboat. Listen as the Coast Guard ordered him to return to his ship.
COAST GUARD (through translator): Get on board the ship and you tell me how many people are on board, and what do they have. Clear? Look, Schettino, I will make sure you go through a lot of trouble. Get on board! Damn it!
KAYE: Captain Schettino is currently on trial. Among the charges he's facing, abandoning ship with passengers still on board, manslaughter, and causing maritime disaster.
KAYE (on camera): We did some checking and found there isn't any national maritime law that says a captain must stay on a sinking ship. Many countries, like South Korea, have their own law or follow the Safety of Life At Sea Treaty adopted after the Titanic sank. It doesn't require that a captain stay on board, but it does say the captain is responsible for the vessel and his passengers.
KAYE (voice-over): That same treaty also says passengers should be allowed to evacuate within 30 minutes. Remember, the Sewol ferry took more than two hours to sink off South Korea. But the passengers were told to stay in place. A warning that may prove to have cost hundreds of lives.
Randi Kaye, CNN, New York.
BANFIELD: And I want to bring back cargo ship captain Jim Staples, a marine safety consultant.
So there is another reason why the old legend has it the captain should go down with his ship. Perhaps not down, but stay with the ship until the last possible moment. And why is that?
CAPTAIN JIM STAPLES, CARGO SHIP CAPTAIN: Well, that's because of salvage rights.
BANFIELD: Salvage rights.
STAPLES: Salvage right, yes. The master (ph) is the owner's representative on board that vessel. And after his first obligation is done of getting all the crew and passengers off, his second obligation is for the salvage of the vessel. So when a salvage company comes out. he will mandate to the company that we need to have salvage on the vessel if it indeed needs to be salvaged.
BANFIELD: But to be perfectly clear, if a captain goes down with the ship and is dead on board the ship, it means nothing to the salvage. It's only while it's still -- while he's still alive on the ship.
STAPLES: That's correct. That's correct. Absolutely. And there's a very famous captain here in the United States in 1953, there was a vessel that went down, the Flying Enterprise, it was owned by Isbrandtsen line and Captain Kurt Carlsen had stayed on board his vessel for 13 days while the crew and the passengers were off the vessel and he was there for salvage rights.
BANFIELD: And this is a picture of him. The captain. I'm not sure if that one was, but the one right before it was a picture of him. No, that is him. That's him as well.
So just clearly, it is somewhat different, some of the rules in South Korea are -- look, I looked up this maritime law for this particular captain who got off the ship a little early.
BANFIELD: He had an obligation to stay until all passengers were rescued. But that can only be a penalty of about $5,000. He also could be cited for failing to aid the passengers, and that can give him a five year penalty. But then if he's found to have been negligent and caused an accident, that can be life in prison for manslaughter. What is it here in the U.S.?
STAPLES: Well, it would probably be very much the same. It would be negligence and you'd be looking at probably at some time in prison. You'd definitely have a suspension of your license. You probably would never work again. And if there was loss of life, I'm sure you're going to be in serious problems (INAUDIBLE).
BANFIELD: And then just back to Randi Kaye's package when she talked about the HMS Birkenhead back in 1852 and these famous, chivalrous members of the military ushering the women and children first, do you think it actually perceived that, this women and children first legendary rule of the sea?
STAPLES: Well, the maritime industry is steeped in tradition. And I believe that even before the Birkenhead incident, we probably had women and children before the rest of the crew just for reasons of morality.
BANFIELD: Yes. Well, and clearly in this particular case, the authorities there certainly have found issues with morality with members of the crew and the captain.
Captain Jim Staples, thanks for being with us.
STAPLES: It's been my pleasure.
BANFIELD: Nice to see you.
STAPLES: Nice to see you.
BANFIELD: And thank you for your information.
STAPLES: Thank you.
BANFIELD: Thank you, as well, for being with us. I'm flat out of time, but my colleague Wolf Blitzer starts right now.
WOLF BLITZER, CNN ANCHOR: Right know, divers reach the cafeteria of the capsized ferry where they think many of the missing students are located.