By Lauren Emery

Plaintiff Challenges District Court’s Finding of No Cause of Action in NATO’s Intentional Sinking of a Fishing Vessel and Unintentional Killing of its Owner

In Wu Tien Li-Shou v. United States, a published civil opinion released on January 23rd, the Fourth Circuit considered whether the intentional sinking of a fishing boat and the accidental killing of its owner presents a justiciable claim.  Wu Tien Li-Shou (Wu), a citizen of Taiwan, seeks damages from the United States for the killing of her husband and the destruction of his ship.

Taiwanese Fishing Boat, Taken Hostage by Somali Pirates, Attacked by NATO

Since the summer of 2009, the North Atlantic Treaty Organization (NATO) has conducted Operation Ocean Shield in the Gulf of Aden and the Indian Ocean in response to the threat posed by Somali-based piracy on global shipping.  On May 10, 2011, as part of Ocean Shield, the USS Groves engaged the Jin Chun Tsai (JCT), a Taiwanese fishing ship.  More than a year earlier, the ship had been hijacked by Somali pirates who used the skiffs stored on board to launch attacks.  More than two dozen pirates held three crew members hostage including the master and owner of the ship, Wu Lai-Yu (Master Wu).  After almost an hour of firing on the JCT, the pirates indicated their surrender and a special team from the USS Groves boarded the ship.  The team found three pirates dead along with Master Wu in his sleeping quarters “with the crown of his head shot off.”  The next day that USS Groves intentionally sunk the JCT with Master Wu’s body on board.

Military Engagement with Taiwanese Ship Does Not Provide a Justiciable Claim

The Fourth Circuit affirmed the district court’s finding that NATO’s actions presented a non-justiciable political question.  Furthermore it held, that even if there was subject matter jurisdiction over the case, Wu’s claims “would be ‘futile’ in light of the discretionary function exception to any waiver of the government’s sovereign immunity from suit.”

Claims Against NATO Actions Barred by Political Question Doctrine and Sovereign Immunity Exception

The Fourth Circuit found that Wu’s suit presented a political question because it would require the court to intervene in the middle of a “sensitive multinational counter-piracy operation” and to “second-guess the conduct of a military engagement.”  It claimed, “Wu would have us sit astride the top of the command pyramid and decree the proper counter-piracy strategies and tactics to the NATO and American commanders below.”  The court declared that such an action would violate the doctrine of separation of powers by demanding the judicial branch intervene in a dispute which is best suited for resolution by a coordinate branch of government.  Furthermore, it stated that matters of national security and defense are the most clearly marked areas for judicial deference.

On appeal, Wu claimed that both the Suits in Admiralty Act (SIAA) and the Public Vessels Act (PVA) waive sovereign immunity for in personam admiralty suits.   While neither statute contains an explicit exception to the scope of its waiver, the court declared that common law precedent recognizes that, “the SIAA must be read to include a discretionary function exception to its waiver of sovereign immunity” which is grounded in separation of powers concerns.  The Fourth Circuit explained that, because the separation of powers is a constitutional doctrine, courts must recognize it even in the absence of an explicit statutory command.  It claimed that this logic can also be extended to imply a discretionary function exception in the PVA.  The court further stated that “conduct of a military engagement is the very essence of a discretionary function” and therefore falls squarely within the exception to the SIAA’s and PVA’s sovereign immunity waiver.  Even if the NATO and American commanders abused their discretion in their engagement, the fact that the function is discretionary “ab initio exempts those choices from judicial review.”

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