Negligent Homicides: A Bridge Too Far

By Captain Kevin S. Eyer, U.S. Navy (Retired)

The Manual for Courts-Martial United States specifies that negligent homicide is any unlawful homicide which is the result of “simple negligence.” Simple negligence is the absence of due care—an act or omission of a person who is under a duty to use due care yet exhibits a lack of that degree of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances. An intent to kill or injure is not required. The maximum punishment includes dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years. 1

On 9 February 2001, the USS Greenville (SSN-772) collided, while performing an emergency ballast-blow surfacing maneuver, with the Japanese-fishery, high-school training ship Ehime Maru , near Oahu, Hawaii. Nine Japanese citizens were killed. Admiral Thomas Fargo, Commander in Chief, U.S. Pacific Fleet, said : “While it’s not yet clear how the accident occurred, it is both tragic and regrettable. I want to express my apologies to those involved in the incident, their families and the government of Japan.” 2 In the aftermath, the court of inquiry found that the accident was caused by a series and combination of individual negligence(s) on board the Greeneville : “artificial urgency by [the Commanding Officer] to rush the submarine through its demonstration schedule as it began to run late; failure to follow standard procedures; an abbreviated periscope search; distractions and obstruction caused by the presence of civilian guests; crew training deficiencies; overconfidence and complacency; and [the Commanding Officer] not paying enough attention to ship contact information.” 3 Still, the court recommended against court-martials for the officers involved because there was an absence of any “criminal intent or deliberate misconduct.” 4 The issue of negligent homicide evidently was not in play.

On 8 January 2005, the USS San Francisco (SSN-711) struck an undersea mountain approximately 360 miles southeast of Guam. One sailor lost his life. The results of the investigation revealed that the command had “failed to develop and execute a safe voyage plan.” The findings of fact showed that the San Francisco , while transiting at flank speed and submerged to 525 feet, hit a seamount that did not appear on the chart being used for navigation. Other charts on board the San Francisco clearly displayed a navigation hazard in the vicinity of the grounding. In sum, “San Francisco’s navigation team failed to review those charts adequately and transfer pertinent data to the chart being used for navigation, as relevant directives and the ship’s own procedures required.” 5 The submarine’s CO was relieved and issued a letter of reprimand. This officer was neither courts-martialed nor charged with negligent homicide.

The Navy never has charged a ship’s CO with negligent homicide. In fact, “negligent homicide” did not exist in the Uniform Code of Military Justice until 1958. Further, the charge itself does not and has never existed in common law (public law). In truth, negligent homicide is complex, esoteric, arcane, and difficult to prove. 6  After all, there are few who are genuinely equipped to determine whether those captains “exhibit(ed) a lack of that degree of care of the safety of others which a reasonably careful person would have exercised under the same or similar circumstances.”  Negligent homicide is a bridge which the Navy has been rightly loathe to cross.

With regard to even considering courts-martial charges of any sort for the two destroyers’ COs, one must ask as was asked in the case of Greenville , was there “criminal intent or deliberate misconduct?” To this observer, I say no. In the case of the Fitzgerald , in the hours preceding the collision, the CO was not called in 13 of the 14 close passages with other ships, even though his standing orders specified that he must be. In the case of John S. McCain , no one on board the ship was sufficiently familiar with the newly installed helm control console.  Even if a “master helmsman” had been on watch at the time of collision, there is no reason to expect that he would have been any more familiar with the new system than the remainder of the crew, since the Navy had cut the funding to train the ship’s sailors in the new system, prior to installation.  I see no criminal intent or misconduct.

Today, there is a churn in the Navy-connected media as people ask if Vice Admiral Thomas Rowden, Commander, Naval Surface Forces/Naval Surface Forces Pacific, is serving as the scape goat by being forced into early retirement. There are those who point out that “he was put in the situation of having to salute and carry on, because Navy HQ either agreed to continue deploying ships or were told by the Office of the Secretary of Defense to do so.” 6   Conversely, there are those who would place total responsibility entirely on the ships’ commanding officers shoulders. On the one hand, COs, by tradition, are held to absolute responsibility, and no one is suggesting that the captains of the Fitzgerald and John S. McCain should be given passes. On the other hand, it must be understood that COs only can play the hand dealt to them by their seniors, including Vice Admiral Rowden, who ultimately was responsible for the manning, training, and equipping of the surface forces. There is much guilt to go around, and it may be distributed widely across a generation of officers, but to cause a couple of COs to eat sin for all is a wrong-headed embarrassment and a subversion of responsibility.

It is difficult to rise to command. The path is long, and many fine officers are left by the roadside. The Navy picks the best officers it has to be COs, and builds the best we can make. Be assured these officers take their responsibilities with the utmost seriousness. More important, in an era in which commanding officers regularly are fired for reasons ranging from appropriate to ridiculous, they still assume command when given the opportunity. To charge these captains with negligent homicide must be understood to be a crossing of the Rubicon from which there can be no return. Not only will it open wide a door which will invite ever Americans to advocate for similar charges against any commanding officer found in their estimation to be wanting, but it may have a severely chilling effect on the willingness of officers to pursue command. If you are a young officer and perceive that not only can a captain be fired for a misspoken word, but that he or she can be courts-martialed and possibly imprisoned by fiat or the desire of Navy leadership to make a demonstration of “action” to the public, why would you aspire to that sort of risk?  

If you are a CO or a prospective commanding officer or a former CO, ask not for whom the bell tolls if this is the new face of the Navy.

1.     Manual for Courts-Martial United States , 2012 ed., article 134: Homicide, Negligent.

2.     “U.S. Captain Suspended after His Sub Sinks Fishing Vessel,” The Telegraph , 12 February 2001.

3.     U.S. Navy, Report of Proceedings, 4, 17, 21–22, 69–80, 92–97, 102–12.

4.     Ibid., 69–80, 92–97, 116–19.

5.     “USS San Francisco Investigation Completed,” story number NNS050509-14, release date 9 May 2005, 3-11-00 PM.

6.     Jo H. Munster, “Negligent Homicide in Military Law,” California Law Review 46, no. 5 (December 1958). 

7.     Sydney J. Freedberg Jr., “Vice ADM Rowden: Scapegoat?” Breaking Defense (16 January 2018).

Captain Eyer served in seven cruisers, commanding three Aegis cruisers: USS Thomas S. Gates (CG-51), Shiloh (CG-67), and Chancellorsville (CG-62).

 

 
 

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