Korean Ferry Fatalities: Is the Korean Coast Guard to blame?

There are 15 people facing charges for the South Korean ferry sinking that killed over 300 people (mostly children and teenagers) last April. The charges range from homicide to negligence.

The defendants’ counselors are building a defense that essentially attempts to blame the deaths on the Korean Coast Guard.

Defenses against Korean Ferry Charges

The majority of the charges involve the fact that captain and crew failed to take steps to rescue the occupants. The captain and crew jumped ship and survived, while the passengers were told to stay put on the obviously sinking ship and await help to arrive.

The defendants’ counselors are making the argument that the captain and crewmembers did not attempt rescue because the Coast Guard had been called to the scene and had the professional skills they thought necessary to perform rescue operations. They are arguing that when the Coast Guard arrived, their responsibility ended.

Will the argument hold up in court?

The Korean Coast Guard has been criticized by the public for its slow and ineffectual response. Korean President Park Geun-hye has apologized and promised reform. However, the agency’s actions do not necessarily erase the captain’s, crew’s, or ferry owners’ degree of responsibility for the devastating accident.

It’s quite unlikely that the defense will hold up in court. Maritime attorney Kim Hyun states according to Reuters: “[The defense is] barely convincing. The crew stayed on the bridge for about 40 minutes and didn’t do anything to rescue passengers although they knew the ship was going to sink. What crew members are claiming is hard to accept.”

If a similar accident occurred in U.S. territory, would the USCG be liable?

This case raises questions about what is considered the captain’s or crew’s responsibilities and what is considered the USCG’s responsibility in an emergency situation. Who can be liable for damages?

It’s a very complex area of the law. For example, the USCG will be immune from negligence lawsuits as per the Discretionary Function Exception, found in 28 U.S.C. Section 2680(a) that protects broad policy decisions.

However, the USCG can be liable for damages caused by negligence, wrongful acts, or omission of federal employees if:

• the agency decided to embark on a mission;
• somehow acted in a manner that breached their duty of care; and
• their actions made matters worse for the victims.

If the USCG is liable, the government will be held to the same standards to which citizens are held in court.

Further Reading on USCG Responsibilities

For more information on USCG duties and where the line between the captain’s and the USCG duties is drawn, you might find the following cases interesting:

• Turner v. United States, 2012 WL 2130933 (E.D.N.C.);
• Lewis v. United States, 2002 AMC 2797 (M.D. Fla. 2002);
• United States v. Gaubert, 499 U.S. 315 (1991);
• Hurd v. United States, 134 F.Supp.2d 745 (DSC 2001); and
• Wade v. United States, 2012 WL 2050359 (N.D. Cal.).

You can simply search the above cases online to view the details and decisions. Also, for more information on topics of interest to the maritime industry, visit the My Vessel Logs blog.