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Circuit Grapples With Fate of Suit by Sickened Sailors

PASADENA (CN) — Radiation from the Fukushima nuclear disaster has sickened thousands of U.S. sailors. Facing calls to boot their $1 billion lawsuit to Japan, the Ninth Circuit is asking why the United States has stayed silent.

At an appellate hearing Thursday, attorneys for the sailors urged the three-judge panel to interpret the silence as approval for keeping their case in U.S. District Court.

"These were very healthy, young 18-, 19- and 20-year-olds ... and now they are all sick," attorney Charles Bonner said. "We ask you to affirm the studious opinion of the District Court and allow these young sailors to move swiftly as they did when they were providing humanitarian aid to justice in this court."

Bonner, with the Sausalito firm Bonner & Bonner, represents dozens of named sailors who participated in humanitarian relief efforts after the March 11, 2011, tsunami in Fukushima, Japan.

They filed suit in San Diego, the home port of the USS Ronald Reagan and other vessels they crewed during Operation Tomadachi as part of the Reagan Strike Force, 7th Fleet.

Saying they were exposed to ionizing radiation, the sailors they meltdowns at the Fukushima nuclear power plant could have been avoided if TEPCo, short for Tokyo Electric Power Co., had kept its facilities in better condition.

TEPCo wants the case the case dismissed on the grounds of international comity.

"The foreign policy interests of both Japan and the United States favor centralizing claims for nuclear damage in the courts of the country where the incident took place or the facility is located," its attorney Daniel Collins told the court Thursday. "We know that Japan shares that strong interest because it has filed an amicus brief in this court articulating that interest in very strong terms, expressing its objection to the fact that this is the only claim arising from this incident that is outside the Japanese court system."

Collins added that any compensation for injuries arising from radiation exposure against TEPCo would have to be satisfied from Japan's funds.

Citing the political-question doctrine, TEPCo also says litigation here would improperly require the court to rule on discretionary military decisionmaking.

Collins said the U.S. Navy was aware of the risk of radiation exposure and had a duty to prevent harm to its service members.

The sailors "were placed two miles from the coast in such an intense area of radiation despite the detection equipment that they suffered injuries," he said.

Bonner disagreed, telling the panel that the Navy kept repositioning its fleet after finding high radiation areas.

"The military always acted reasonably, contrary to what TEPCo would have you believe — that in some kind of way they were negligent or that the District Court needs to evaluate the reasonableness of the military's actions," he said. "The District Court does not need to do that."

Bonner urged the panel not to overthink the absence guidance by the United States on jurisdiction.

"The fact that the United States government has declined to file a statement of interest despite TEPCo's request and our detailed discussion with them is an indication that they do not feel that there is any tension between the United States government and the Japanese government," Bonner said.

U.S. District Judge Janis Sammartino is presiding over the case in San Diego.

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