Ex-Skipper Acquitted of 1 Charge

Capt. Alexander G. Balian, on trial for failing to rescue a boatload of Vietnamese refugees, was acquitted Thursday of a charge stemming from the death of a refugee who jumped from the disabled junk and drowned in the South China Sea.

Balian, the former skipper of the U. S. warship Dubuque, still faces two charges of disobeying orders and dereliction of duty.

After Navy prosecutors rested their case Thursday, Capt. James A. Freyer, the judge presiding over the court-martial, said there was insufficient evidence to prove that Balian was guilty of violating Navy regulations when he failed to rescue the refugee who jumped. Freyer entered a directed verdict of not guilty to the charge, so it will not be considered by the jury of six Navy captains.

Balian’s lawyer, Dan Donato, had requested the directed verdict, arguing that there was no trace of evidence that Balian was informed that a swimmer was floundering in the water. Even if Balian had known the swimmer was in trouble, “there was no way he could have prevented it,” Donato said.

Refugee Already Dead

Freyer agreed, saying he could not see how a “reasonable person” could convict Balian based on the evidence presented by the prosecution. He said the testimony and ship’s logs indicated that, before Balian and the others on the bridge of the amphibious transport dock received reports of a body in the water, the refugee was already dead.

“The impression I’m left with is that the whole thing happened very quickly,” Freyer said.

The swimmer was among four refugees who jumped from the junk and tried to swim to the Dubuque as it approached the junk about 9 a.m. last June 9. The swimmers were thrown life rings as they neared the Dubuque, but they were not allowed on board. The swimmer who died drowned while he was still near the junk, according to most of the witnesses who saw him jump. The other swimmers, wearing the life rings from the Dubuque, made it back to the junk alive.

Navy prosecutors contended Thursday that, as soon as the refugees jumped into the water, their lives were in danger and Balian had an obligation under Navy regulations to rescue anyone in danger at sea.

“When those refugees started jumping off the craft, (Balian) had an obligation to render assistance and no assistance was rendered,” said Lt. Michael J. Wentworth, a Navy prosecutor.

The judge let stand a charge in which the Navy alleges that Balian violated a regulation when he failed to assist one of the swimmers who tried to climb a rope hanging from the Dubuque, but was shaken off by crew members. During the weeklong trial, crew members have given conflicting accounts of that part of the incident. Some said Balian ordered the crew to shake the refugees off the lines and others said no such order was ever given. Several refugees who were hanging on the lines said in written statements presented Thursday that they were simply lowered back into the water.

In the other remaining charge, the Navy alleges that Balian disobeyed orders and was derelict in his duty for failing to properly assess the condition of the refugees and give them adequate assistance.

Balian ordered that the refugees be given food, water and directions, but decided, after crew members viewed the refugees from a small motorboat, that the junk was seaworthy and could reach land without further assistance. However, the refugees drifted for another 19 days after the Dubuque left for the Persian Gulf and have said they resorted to cannibalism after their food ran out.

Marines Testified

Before prosecutors rested their case Thursday, they called several Marines to the stand to testify about what they saw when they set off in a small rubber boat to deliver supplies to the junk. The Marines described a desperate and chaotic situation. They did not report much of what they saw, they said, and were never debriefed by Balian or any Navy personnel when they returned to the ship.

Balian has blamed the crew for giving him inadequate and erroneous information that led him to believe it was not necessary to pick up the refugees. An issue that the court-martial panel will consider is whether Balian should be held responsible for the apparently poor communications among his crew.

Marine Staff Sgt. Jeffrey Morton described an older man on the junk who spoke English with a French accent and said, “I can’t take any more of this.” The man said they had been at sea for about 20 days, and a number of people had already died.

According to other testimony, that man swam away from the junk the night before the refugees were rescued by Philippine fishermen and is presumed drowned.

Marine 1st Lt. Mark Wild said the refugees were “thin, dirty and tired. They were excited about us being there, and they were crying out to us.” Wild said some refugees begged for help by holding their hands in front of their faces, palms together, as if in prayer. “Others were thanking us in smiling,” he said.

As the Marines loaded food aboard the junk, the refugees “began grabbing it and passing it back and stuffing it in their shirts,” he said. “A lot of the food was being devoured immediately. People had their hands full of rice and were pushing it into their mouths.”

A third Marine, Cpl. Graham Cocksedge, said the refugees “looked real skinny.” One wasn’t moving at all and some weren’t going for the food, he said. He added that he saw some refugees fighting over oranges.

Prosecution and defense lawyers agreed Thursday that, instead of hearing the testimony of scheduled refugee witnesses, lawyers will read into the record the statements of six who described their voyage, which began in Ben Tre in southern Vietnam last May 22 aboard a junk so crowded that they were unsure how many people were there. Some paid as much as $2,500 for what they thought would be a four-day trip to Malaysia. Instead, it turned into a 37-day odyssey during which more than half of the approximately 110 on board died or were killed for food.

But they said in the statements that they were grateful to Balian and to the United States for helping them, when as many as 50 merchant ships from other countries saw them and passed them by.