RICHMOND, Va. (CN) - The widow of a Taiwanese man whose fishing vessel was sunk in the effort to rid it of pirates cannot seek damages, the 4th Circuit ruled.
Wu Lai-Yu was the master and owner of the ship, Jin Chun Tsai 68, which pirates hijacked in 2010.
He and two crew members were still aboard the JCT 68 as hostages on May 10, 2011, when the USS Stephen W. Groves followed orders from a NATO task force commander to engage the ship and forced its surrender.
Three of the nearly two dozen pirates were killed in the engagement, and a special team also found Wu in his sleeping quarters, "with the crown of his head shot off," the master's widow, Wu Tien Li-Shou, claimed in a federal complaint against the United States.
Wu's crew members were rescued safely, and the USS Groves intentionally sunk the JCT 68 the next day, with Wu's body on board, pursuant to the NATO commander's orders.
Though Wu's widow claimed that the counter-piracy raid under Operation Ocean Shield was conducted negligently, violating the rules of engagement, a federal judge in Baltimore dismissed the action after finding that it raised a "nonjusticiable political question."
Noting that the United States sent Wu's family money already, a three-judge panel for the 4th Circuit affirmed dismissal of the civil action on Jan. 23.
Ultimately, "this case presents a textbook example of a situation in which courts should not interfere," Judge J. Harvie Wilkinson wrote for the court.
"Resolving this dispute would oblige the district court to wade into sensitive and particularized military matters," he added.
The 22-page opinion notes that Wu's case implicates very "precise details of the military engagement: what kind of warnings were given, the type of ordnance used, the sort of weapons deployed, the range of fire selected, and the pattern, timing, and escalation of the firing."
"Discovery easily could draw the court and the parties into the technicalities of battle," and tie the hands of NATO and American commanders leading anti-piracy initiatives, Wilkinson added.
Citing the 1803 landmark separation-of-powers case Marbury v. Madison, the court found that it is not the role of the judicial branch to resolve Wu's case.
"As judges, we are just not equipped to second-guess such small-bore tactical decisions," Wilkinson wrote. "We also are ill-suited to evaluate more strategic considerations. We do not know the waters. We do not know the respective capabilities of individual pirate ships or naval frigates. We do not know the functionality and limitations of the counter-piracy task force's assets. We do not know how a decision to tow and not to sink the JCT 68 would have affected the task force's mission by tying down valuable naval resources. We do not know the extent of the disruption to commercial shipping caused by any single ship or by Somali-based piracy generally. What we do know is that we are not naval commanders. These are questions not intended to be answered through the vehicle of a tort suit."
It is moreover "decidedly not our job" to select the proper rules of military engagement, the court found.
"Further, if we accepted Wu's invitation, we would open the door to allegations that soldiers and sailors should treat more skeptically the clear orders of their superiors," Wilkinson wrote. "We would afford military personnel a reason and incentive to question orders - namely, to head off tort liability or at least the burdens of litigation that come with being sued. Allowing discovery here would permit inquiry into the wisdom of the order to sink the JCT 68."
Despite its denial of the claim, the court emphasized that its holding makes no attempt to "trivialize either Master Wu's death or the destruction of his ship."
Judge Paul Niemeyer and Judge Robert King concurred. Timothy Burke Shea of Nemirow Hu & Shea represented Wu, while Douglas Neal Letter represented the U.S. Department of Justice.
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