Courts - New Jersey Sailor's death gives rise to legal battle Decision could alter how the government defends itself in similar lawsuits

By David Porter Associated Press Writer GARFIELD, N.J. (AP) -- A federal judge found the Navy 80 percent negligent in the training death of Seaman Freddie Porter Jr., when it awarded $1.25 million to his mother, Cassita Massiah, last December. As it stands, it won't be the Navy paying Massiah. Instead, a company found to be 20 percent negligent -- the owner of the tugboat that overran Porter's small Navy vessel more than two years ago -- has been ordered to pay the total damages. The decision by U.S. District Judge Henry Coke Morgan Jr. has spawned a legal battle that could alter how the government defends itself in similar lawsuits. The seeming inequity stems from long-held legal precedent of sovereign immunity that protects the government from lawsuits -- in this case, by military personnel injured or killed in the course of service. The government can be sued by a third party -- a product manufacturer, for example -- to contribute to a damage award, but those suits rarely succeed, according to Daniel Rose, an attorney representing Massiah. If a federal appeals court holds the Navy liable for damages, however, the case would likely go to the Supreme Court, which hasn't ruled definitively on the issue, Rose said. "It's a very important issue because it could open up the door to contributions against the government in all military accidents," he said. John Holloway, an attorney representing the tug's owner, said the case likely wouldn't affect nonmilitary cases involving sovereign immunity. Porter, 19, and his two Navy crewmates were training near midnight Oct. 11, 2007, aboard a 24-foot inflatable boat on Virginia's James River when a huge flotilla of barges pushed by the tugboat emerged from the darkness. No one stood watch on the lead barge to warn of any impending danger, and the flotilla slammed into the Navy vessel. All were thrown overboard; two were rescued but Porter, sucked beneath the barges, was killed. Morgan found the tug's owner, Vulcan Materials Co., of Birmingham, Ala., should have posted a lookout who would have prevented the collision. But the Navy, he wrote, was primarily liable for operating "an unseaworthy vessel ... with an incompetent crew" that committed several blunders that included traveling down the wrong side of the river The government's defense stems from a 1950 case involving a serviceman killed in a barracks fire allegedly caused by government negligence. Vulcan's appeal cites a 1982 case in which the Navy shared in some damages resulting from a collision between a Navy vessel and a cargo ship. The 4th Circuit Court of Appeals, the same court that heard the 1982 case, could rule by fall. "When two vessels collide and third parties are damaged, the basic rule is you divide damages based on relative degrees of fault," said John Holloway, an attorney representing Vulcan. "When one of the parties is immune from liability directly to one of the third parties, do you still divide damages or do you protect that immunity? Something's got to give." Massiah, a schoolteacher in New York who lives in the small northern New Jersey town of Garfield, still has lingering resentment over the fact that it took two years and a wrongful-death lawsuit to learn of the Navy's negligence. "I was told it was just a plain accident," she said. "I felt let down, felt that the truth was hidden from me, and that if I hadn't pursued this procedure, I wouldn't have known exactly what took place." Her son, who enlisted in the Navy out of high school and told her he wanted to become a lawyer, was a land-based supply clerk based in Norfolk, Va. He had volunteered for a two-week coxswain course and was on his last training exercise the night of the accident. One crew mate, Esteban Angeles, was a student like Porter; the third, Petty Officer Albert Bollinger, had no boating experience except for the training course he completed the previous December. It came to light during the trial that Angeles, the boat operator, was unaware that his vessel -- a rigid-hulled inflatable boat known as a RHIB -- was equipped with radar that might have aided in identifying the tug. Testimony also showed that Bollinger, acting as safety observer, didn't know how to use the radar. That night, the tug William J. Poole headed upriver, pushing six empty barges, and later picked up two more. The load created a 600-foot blind spot for Capt. Rondy Wooldridge, while the height of the barges created a 90-foot blind spot that prevented someone on the water from seeing lights attached to the barges, according to court documents. As the vessels approached, crews in two other RHIBs noticed the tug's spotlight in the distance but couldn't identify it using radar. When one crew eventually did, the information wasn't radioed to Porter's boat. As the tug steamed around the bend, three of the other Navy boats had already crossed to the other side of the channel and the fourth drifted or maneuvered out of harm's way. For Porter and his crew mates, though, it was too late. Bollinger and Angeles jumped overboard and swam to safety, but Porter disappeared under the tug, leaving only his safety light bobbing in the water. His body was found washed ashore the next day, and an autopsy concluded that he had died from a blow to the head, likely from one of the tug's propellers. No one on the tug was aware of the collision until they were notified the next day. Holloway noted that investigations conducted by the National Transportation Safety Board and the Coast Guard didn't fault Vulcan for not posting the lookout. The company has continued to operate on the river since the accident, he said. The Navy underwent a review of all of its training exercises and has since discontinued the RHIB exercises on the James River, according to Navy spokesman Nathan Potter. Massiah wishes the review had come earlier. "I don't want to see another mother, another family grieving like I have been grieving for my son," she said. "I know accidents happen, but this was not an accident; this could have been prevented." Published: Wed, Jun 2, 2010

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