HONORABLE JOHN C. COUGHENOUR

 

 

 

 

 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

 

 

LCDR JOHN R. DALY, JR. U.S.N.                At Law

 

Plaintiff,                                                No. C01-0990C

 

            PLAINTIFF’S TRIAL BRIEF

v.                                                        

           

           

FESCO AGENCIES N.A., INC.,       

et al                                                                            

           

Defendants.                                         

______________________________

 

 

 

Plaintiff, Lieutenant Commander John R. Daly, Jr., USN, by counsel, respectfully submits this Trial Brief for purposes of the jury trial in this action to commence on October 7, 2002.

I.          FACTUAL BACKGROUND. 

1.         The Parties.

Plaintiff, LCDR John R. Daly, Jr. (“LCDR Daly”), is a U.S. Navy intelligence officer serving on active duty at all times relevant to this action.  On April 4, 1997, LCDR Daly – then LT Daly -- was the Office of Naval Intelligence’s Foreign Intelligence Liaison Officer assigned to the Maritime Forces Pacific Command, a combined command staffed by U.S. and Canadian military personnel located in Esquimalt, Vancouver Island, British Columbia. 

 

Defendants are Far Eastern Shipping Company, Plc (“FESCO”) and two of its subsidiaries, FESCO Agencies N.A., Inc. (“FESCO Agencies”) and FESCO Intermodal, Inc. (“FESCO Intermodal”).  The defendants owned and operated a Russian-flagged merchant vessel known as the Kapitan Man on April 4, 1997, the date that Daly sustained the injuries that form the basis for this action.

2.                  The Surveillance Mission Against the Kapitan Man.

  On Friday, April 4, 1997, LCDR Daly was on duty and participated in an official U.S. Navy photo-surveillance mission against the Kapitan Man.  The Kapitan Man was suspected of monitoring the movements of U.S. ballistic submarines and aircraft carriers for Russian intelligence.  Routine intelligence collection against the Kapitan Man revealed that it had made course deviations, as well as departure and arrival time deviations, to coincide with the movements of U.S. nuclear submarines. 

On April 4, 1997, LCDR Daly was a passenger in a Canadian CH-124 “Sea King” helicopter piloted by Captain Patrick Barnes (“Barnes”) of the Canadian Air Force.  The Kapitan Man was in U.S. territorial waters, approximately five nautical miles north of Port Angeles, Washington, as it proceeded in an easterly direction in the inbound lane of the Strait of Juan de Fuca to the Port of Tacoma.  Not coincidentally, the USS Ohio, a U.S. nuclear powered ballistic missile submarine, also was in the Strait of Juan de Fuca in the same vicinity as the Kapitan Man on April 4, 1997.  The Kapitan Man passed within 1,000 yards of the USS Ohio, as the surfaced submarine proceeded in a westerly direction in the outbound lane of the Strait of Juan de Fuca.

During the surveillance mission, LCDR Daly used a 35mm Nikon N90SLR with the Kodak DCS-420 digital system to take photographs of the Kapitan Man through the opened side cargo door of the helicopter.  Because it was a bright, sunny day, Plaintiff noticed what he thought at the time were solar glints or reflections of the sun off the metal surfaces of the Kapitan Man and the surrounding water.  One flash of brilliant light made him turn away and rub his eyes.

When he returned from the mission, LCDR Daly handed the camera to a U.S. Navy imagery analyst, CWO 2 Scott Tabor (“Tabor”), who downloaded the images and examined them.  One of the images showed a brilliant and intense red flash emanating from the port side running light area of the Kapitan Man.  The red flash had a white center and a halo around it.  Another image showed the starboard running light which upon close inspection appeared to be turned off.

Based on his examination and analysis of these images and the other images of the Kapitan Man, the imagery analyst approached LCDR Daly and observed him rubbing his eyes.  He asked LCDR Daly if he was experiencing any eye irritation or headaches.  LCDR Daly responded that his eyes felt gritty and that he had a headache.  The imagery analyst then showed LCDR Daly the image of the red flash and told LCDR Daly that this could possibly be the image of a laser beam.  LCDR Daly was initially skeptical but advised the other aircrew members of this assessment.

As he proceeded home on the same evening, LCDR Daly first began to experience symptoms of a laser-induced eye injury.  In addition to irritation and pain predominantly in his right eye, LCDR Daly now was experiencing photophobia or extreme sensitivity to the on-coming headlights of cars.  The next morning Plaintiff awoke with a small pool of blood in his right eye and further eye irritation and pain.  On the same morning, Barnes (the helicopter pilot) also awoke with blood in his eye and eye irritation.  LCDR Daly immediately advised his command of this development and sought local medical assistance. 

On Sunday, April 6, 1997, the U.S. Coast Guard Commander for the Thirteenth District in Seattle, Rear Admiral John Spade, had discussions with higher authorities in the Coast Guard and other agencies in Washington, D.C. about the injury suffered by LCDR Daly in the performance of his official duties during the photo-surveillance mission of the Kapitan Man.  Based on these high level discussions of this “national security issue” with authorities in Washington, D.C., it was decided on April 6, 1997, that the Coast Guard would conduct a search of the Kapitan Man to determine if there was a laser aboard. 

On April 7, 1997, Captain Myles Boothe of the Coast Guard issued a written order detaining the Kapitan Man, which was scheduled to depart the Port of Tacoma at 6 A.M. on April 7.  The Kapitan Man was not allowed to depart the Port of Tacoma and had knowledge of the impending search at least as early as 6 A.M. on April 7 – more than 10 hours in advance of the search.  Furthermore, notwithstanding the detention of the vessel, neither the Coast Guard nor any other authority imposed any surveillance on the Kapitan Man to ensure that the crew did not dispose or remove a laser device from the ship.

After detaining the Kapitan Man, Captain Boothe assembled a boarding team to conduct the inspection of the vessel.  The boarding team was composed of personnel from the Coast Guard, Port Security, the Navy and the FBI.  However, none of the boarding party members had any education, training or experience in the identification or use of lasers.  Indeed, some boarding team members were told to look for a large, bulky laser device with big cables and a large power source, notwithstanding that laser range finders capable of causing eye damage can be as compact as a pack of cigarettes.  None of the boarding team members had any experience conducting a criminal investigative search of a vessel as large as the Kapitan Man.

On April 7, the Russian consulate in Seattle called Captain Boothe about the boarding, asking to participate in the boarding and emphasizing the need to expedite the inspection so that the vessel could leave.  Captain Boothe declined to allow the Russian consulate to participate in the boarding.

The boarding of the vessel took place at approximately 5:30 P.M. on April 7 and the entire search lasted only 2-4 hours.  Because this was a national security issue, certain boarding team members were armed with weapons.  One boarding team member described parts of the search as being “hit or miss” and all the boarding team members that were deposed have recounted looking for things in plain sight but not thoroughly looking in every box, cabinet or drawer in every space on the vessel.  The boarding team never gained access to the ship’s library, never searched the numerous, large cargo containers on the vessel, never searched in the motor vehicles that were part of the ship’s cargo, and never looked in the cabinets and drawers of the crew quarters.

A Navy photographer took photographs of the Kapitan Man during the search.  One of these photographs showed the starboard side running light, which was mounted on an assembly affixed to the outside of an access door on the right side of the bridge of the ship.  Testimony by the ship’s captain indicates that the port side running light and the starboard side running light were identical except for the color of the lens or globe.  Two boarding team members who examined the port side navigational light area of the Kapitan Man, however, did not recall seeing any running light mounted on an assembly affixed to the outside of the access door on the left side in the bridge area.  Because they were not familiar with the Kapitan Man’s running light configuration, they did not notice that this was unusual.  Not surprisingly, the search did not uncover any laser device, as the Kapitan Man had ample time to remove or conceal a laser and tidy up the vessel before the 5:30 P.M. inspection began.

On April 8, LCDR Daly, Captain Barnes and the other Canadian aircrew members were sent to the U.S. Army Medical Research Detachment (“USAMRD”) in San Antonio, Texas.  This facility is the center of U.S. expertise in the assessment, diagnosis and treatment of laser-induced eye injuries.  LCDR Daly was thoroughly examined by the medical and vision experts and it was concluded that there was a high probability that he had suffered multiple laser exposures to the retina of his right eye.  The experts also concluded that the retinal lesions on LCDR Daly right eye were probably caused by a repetitive-pulsed laser, probably a Neodymium:Yttruium-Aluminum-Garnet (“Nd:YAG”) device operating at 1060 nanometers.  This diagnosis was confirmed by the experts at the USAMRD who examined LCDR Daly on follow-up visits in May 1997, August 1997, June 1998, December 1998 and November 2000.  Thus, the nature and cause of LCDR Daly’s eye injuries is exposure to a laser on April 4, 1997 during the surveillance mission of the Kapitan Man.

While no diagnosis of Captain Barnes was made in April 1997, on subsequent visits to the USAMRD the ophthalmalogist/retinologist who examined LCDR Daly also concluded that Barnes likely  had suffered laser exposure too because his  symptoms were similar to LCDR Daly’s symptoms, he had been seated on the right side of the helicopter as had LCDR Daly and he had looked repeatedly toward the Kapitan Man to judge distance from the vessel as the helicopter pursued a clockwise flight path around the ship.  Like LCDR Daly, Barnes had never previously experienced these symptoms.  Furthermore, as an aviator whose career depended upon his eyesight, Barnes was unlikely to complain about his eye pain unless it had been real and severe. 

The images of the Kapitan Man taken by LCDR Daly during the surveillance mission show that the starboard side navigational light was turned off.  There is testimony in the record that one switch controlled both the port side and starboard side running lights, so that the port side running light could not be turned on when the starboard side light was turned off.  Indeed, Plaintiff’s laser expert will testify that miniature lasers are commercially available that will cause eye damage and that it is possible to conceal such a laser within the port side running light.

Although there were two other vessels in the Strait of Juan de Fuca on April 4, 1997, neither the USS Ohio (the U.S. ballistic submarine) nor the U.S.-flagged merchant vessel named the President Jackson had any optical systems in operation on that day.

Rear Admiral Michael W. Cramer (Ret.) was the former Director of Naval Intelligence and will testify that Russian intelligence agencies have used FESCO-owned vessels for intelligence gathering against the United States.  Indeed, in the 1990’s, Russian intelligence gathering activities were routinely focused on monitoring the movements of U.S. nuclear submarines and U.S. carrier battle groups.  Rear Admiral Cramer will testify that Soviet and Russian intelligence agencies have used lasers concerning and against U.S. intelligence gathering operations.    

II.        LIABILITY.

The defendants, as the owner and operators of the Kapitan Man and the employer of the Kapitan Man’s crew, committed battery against Plaintiff by intentionally directing a harmful and dangerous instrumentality, i.e. a laser, at Plaintiff or by intentionally directing a harmful laser at the helicopter in which he was a passenger, thereby causing Plaintiff to suffer lesions on the retinas of both of his eyes.  As a result of the laser-induced injury to his eyes, Plaintiff has suffered chronic eye pain, periodic surges of eye pain, photophobia or light sensitivity, and other damages.

Alternatively, the defendants committed negligence in directing a harmful and dangerous instrumentality, i.e. a laser, at Plaintiff or at the helicopter in which he was a passenger.  Such negligent conduct is actionable because the defendants owed Plaintiff a duty of care, breached that duty by failing to exercise ordinary care or doing an act that a reasonably careful person would not have done under the same or similar circumstances, and thereby proximately caused Plaintiff to suffer injury.

FESCO was, at the time of the injury, the owner of the Kapitan Man.  FESCO is liable for intentional battery against Plaintiff because it acted by and through the crew on its vessel.  Alternatively, FESCO is liable for negligence because it entrusted the vessel’s crew with a dangerous instrumentality, i.e., a laser, and failed to exercise ordinary care to prevent foreseeable injuries from resulting from the crew’s use of the laser. 

Although the testimony of FESCO representatives has been contradictory, it is clear that either FESCO Agencies or FESCO Intermodal was the operator of the Kapitan Man at the time of the injury.  As the operator of the vessel, these defendants are also liable for battery because they acted by and through the crew of the vessel.  Alternatively, they are liable for negligence because they entrusted the vessel’s crew with a dangerous instrumentality, i.e., a laser, and failed to exercise ordinary care to prevent foreseeable injuries from resulting from the crew’s use of the laser. 

III.             DAMAGES

 

As a proximate result of the intentional or negligent conduct of the defendants in directing a laser at LCDR Daly or at the helicopter in which he was a passenger on April 4, 1997 during the surveillance mission against the Kapitan Man, LCDR Daly suffered, and continues to suffer, severe damages to his eyes.  LCDR Daly has at least 5 laser-induced lesions on the retina of his right eye and 2 laser-induced lesions on the retina of his left eye that were caused by defendants’ conduct.  He experiences all of the following:

1.      chronic eye pain;

2.       periodic surges of eye pain varying in intensity and duration;

3.       photophobia or such extreme sensitivity to light that he can no longer drive at night;

4.      he sees spots in his vision;

5.      he sees halos in his vision;

6.      headaches associated with his eye pain; and

7.      post-traumatic stress syndrome.

Because of his eye pain, he is often in so much pain that he must miss work and stay in a dark room.  He has been told that he could lose his eyesight.  He will be unable to obtain health insurance from any future employer covering his eye problems.  Finally, his employability has been seriously and adversely affected because of the amount of time that he requires to be away from work because of unbearable eye pain.  To date there is no known treatment available to alleviate his pain.

 

IV.              CONCLUSION.

 

Defendants are liable for the damages suffered by LCDR Daly because of their conduct in intentionally directing a dangerous and harmful instrumentality, i.e., a laser, at LCDR Daly or at the helicopter in which he was a passenger on April 4, 1997 or negligently entrusting the Kapitan Man’s crew with a laser without properly training, instructing or supervising the crew in their in the use of the laser.

 

Dated:  October 3, 2002                                  Respectfully Submitted,

 

 

 

_

Richard A. Bersin WSBA #7178

10500 N.E. 8th Street 

Suite 1900

Bellevue, WA 98004-4358

 

 

 

 

 

 

 

 

 

 

 

________________________________

Larry Klayman, Admitted Pro Hac

Paul J. Orfanedes, Admitted Pro Hac

Michael J. Hurley, Admitted Pro Hac

JUDICIAL WATCH, INC.

Suite 725

501 School Street, S.W.

Washington, DC 20024

 

Attorneys for Plaintiff

 

 

 

 

CERTIFICATE OF SERVICE

 

I hereby certify that a cop of the foregoing PLAINTIFF’S TRIAL BRIEF, was sent by facsimile and mailed, postage pre-paid, this 3RD day of October, 2002 to:

 

Marc E. Warner, Esq.

LE GROS BUCHANAN & PAUL

701 Fifth Avenue

Suite 2500

Seattle, WA 98104-7051

 

I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct this 3RD day of October, 2002.

 

 

 

 

 

 

____________________________________________

Signed at Bellevue, Washington