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JONGSUK KIM v. UNITED STATES

June 19, 1995

JONGSUK KIM, YONHO SEO, MYUNGRAN KIM, DONGWHA KIM, DONGRIM KIM, DONGSIL KIM, KYUNGHUN KIM, SUNGHUN KIM, and JONGYUN KIM, Plaintiffs, against UNITED STATES, Defendant.

HONORABLE LEONARD B. SAND, U.S.D.J.


The opinion of the court was delivered by: LEONARD B. SAND

SAND, J.

 This action is brought pursuant to the Public Vessels Act, 46 U.S.C. ยงยง 781-790, and the Suits in Admiralty Act, 46 U.S.C. 741.752, by the owners and operators of a fishing net located within plaintiffs' licensed fishing grounds in the vicinity of the town of Hwasan-ri, Republic of South Korea. Plaintiffs' claim is that during the course of joint American-South Korean amphibious military operations held in March, 1989 and named Team Spirit '89 ("TS-'89"), the U.S.S. Frederick, a Landing Ship Tank ("LST"), ran afoul of and caused considerable damage to plaintiffs' net. Plaintiffs' seek compensation for the cost of repairing the net and for lost income during the time the net was out of operation.

 The action has been tried to the Court and the following constitutes our findings of fact and conclusions of law.

 Procedural History of Claim

 TS-'89 was one of a series of annual military exercises jointly conducted by the American and Republic of South Korea ("ROK") forces since the 1970's. It was a massive undertaking involving 10-15 American and ROK ships, over 10,000 United States Marines, and 4-5,000 ROK Marines. TS-'89 was the subject of extensive planning and preparation. One aspect of this was the establishment of claims procedures for the processing of land and sea based civilian claims. Plaintiffs followed the prescribed procedures for the assertion of their claim and were advised that the United States had concluded that it was not liable for the damage to their net, on two grounds. First, "we are not convinced that the damage was caused by personnel of the United States Navy or by a United States Navy Ship." Second, plaintiffs had been "advised to remove or lower your nets for the duration of the exercise by officials of the Republic of Korea and that the location of your nets was not marked by lights or flares." Letter, Captain R. R. Rossi, Department of the Navy Office of the Judge Advocate General, Feb. 21, 1991 (Ex. 3).

 The letter went on to advise plaintiffs that suits against the Navy based on maritime torts must be brought pursuant to the Public Vessels Act and that "the only proper forum for such a suit against the United States is United States Federal District Court." This is, of course, precisely the route taken by the plaintiffs.

 As to the second asserted grounds for denial of the claim, as we shall see below, it was simply not the case that plaintiffs had been advised by ROK officials or by anyone else to remove their net during the exercise, although it is true that plaintiffs' net was not illuminated.

 Defendant urges throughout these proceedings the seeming incongruity and inappropriateness of a district court in New York adjudicating a net damage claim arising out of joint American-ROK military maneuvers in Korean waters. Defendant seeks to fault plaintiffs for this circumstance and for plaintiffs' failure to pursue claims against the Korean government. We believe whatever fault may lie for the failure to resolve this controversy by other means, it does not lie with the plaintiffs.

 Plaintiffs' Net

 It is critical to an analysis of the issues presented herein that one appreciate the size and nature of the net in question. Plaintiffs' net was a seven chamber drift type net, 400 meters in length, 800 meters in circumference and 800 meters in width. Its top portion floated on the surface while its bottom portion was submerged to a maximum of 36 meters. The net was moored by over 100 anchors.

 Two metal cylindrical buoys marked the net's northern and southern extremes, which were approximately 5 to 6 meters in length and 1.5 meters in diameter, floating approximately 1.0 meter above the water surface. The buoys were also marked with red and white pennants roughly 3.0 meters in height above the water surface. The net was also marked on the surface with 600 to 700 spherical glass and PVC floats and the floats also had flag markers.

 The net had no form of illumination either by lights, chemicals or flares. During 1989, civilian vessels were barred from operating at night within three miles of the Korean coast pursuant to a government curfew (presumably adopted as a security measure against feared North Korean activity).

 Notice to Plaintiffs

 There was a growing concern on the part of American military and naval forces with regard to the presence of fishing nets in the coastal areas where these annual exercises were conducted. With this in mind, planning conferences were held between American and ROK officials. At a conference held on January 25, 1989, the need to have fish nets removed from the exercise area was discussed. American representatives, mindful of the sovereign rights of South Korea, relied on the South Korean military authorities to implement the removal of nets which were in areas where the exercises would be conducted. The ROK officers were advised of the precise dates and locations in question. A document furnished to the ROK delineated the locations which included the area in which Plaintiffs' net was located.

 ROK military officials have no authority to order civilian compliance with their directives. Civilian compliance is procured by means of a "request" and the local fishermen's associations are the means by which the Korean fishermen are apprised of what is required of them.

 On March 7, 1989, Jongyun Kim ("Mr. Kim"), the general manager of Plaintiffs' fishing business, received Request for Cooperation Letter, reference No. 27722-83 (Exs. 18 and 19) to remove all net in an area "at sea off Dogseag-ri Dongramyeon" from March 8 to March 23, 1989. Attached to the letter was a chart. This letter and chart did not include the area of plaintiffs' net and plaintiffs disregarded the letter.

 In fact, in previous years, Team Spirit exercises did not encompass the area of plaintiffs' net so that the description of the area of the exercise was not surprising. However, on March 7, 1989, Mr. Kim observed a large number of vessels offshore and, despite the absence of written notice to do so, undertook to remove the plaintiffs' net. Bad weather prevented removal until March 10th, at which time one of the seven chambers of the net was removed.

 Mr. Kim never received Request for Cooperation letter, reference No. 360-842 (Ex. U) which would have indicated that plaintiffs' net should be removed. Defendant's contrary claim that such notice was received by plaintiffs is not supported by the evidence or the investigations and testimony of Commander Doo Won Pang. Commander Pang, now Judge Advocate of the Korean Navy, was called by defendant and testified that his investigation revealed no documents which showed delivery to plaintiffs of documents advising removal of nets in plaintiffs' locations. (Tr. 262). He further testified that "...if the civil agency didn't send this message to the fishermen, then we can consider there was no order." (Tr. 260). *fn1"

 Although both parties are in agreement that American maritime law is controlling here, inquiry was made of Commander Pang as to concepts of Korean law relevant to the reasonableness of plaintiffs' actions or omissions and the duty of care imposed on Korean fishermen. Commander Pang testified as follows:

 
THE COURT: Now suppose, hypothetically suppose the civilian authorities receive that document [Defendant's Exh. U] and do nothing. Does that itself create a legal obligation to the fishermen to remove the nets?
 
THE WITNESS: No. If they didn't send the message after receiving this, no. In other words, if the civil agency didn't send this message to the fisherman, then we can ...

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