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It's been nearly a year since the name TEPCO became synonymous with excessive corporate greed, mismanagement, fraud, government collusion, cover-ups, and reckless disregard for the health, safety and, welfare of the people of Japan, let alone the rest of the global community.
In that time we've witnessed the company defy Japan's newly decreed anti-gang law, where the energy giant has been outsourcing radiation cleanup duties to numerous contractors known to have underworld affiliations. During the first few weeks of the crisis, we shook our heads in awe, as TEPCO chief Shimizu was “hospitalized” for something as lame as dizziness, at the same time the corporation was facing total financial ruin, and the country of Japan confronted its worst crisis since World War II.
We were shocked in disbelief when with the entire debacle was allowed to remain in TEPCO’s hands, even when it was more than clear, the company was in way over its head, as the entire world’s atomic energy overlords proved they never had any plan in place if something like a meltdown did in fact actually occur. And they still don’t!
We've seen the Japanese government demand the entire TEPCO board resign if they wished to receive yet another unwilling taxpayer supported cash infusion. A handout the country simply cannot afford. We’ve witnessed that same government finally admit that large swathes of Fukushima Prefecture will inevitably be uninhabitable forever, as they scramble to designate new No Go Zones. We heard the “officials” declare the crippled Daiichi reactors in cold shutdown” as they continue to burn out of control, even where they hadn’t yet been able to get close enough to Unit 3 to have made such a premature assessment.
We beheld the media blackout on Tomohiku Suzuki, a reporter who went undercover, and put himself in harms way to infiltrate the plant, and document scores of egregious schemes including the continuance of falsifying safety records that place employees lives in peril by intentionally over exposing them to radiation, as Hitachi, and Toshiba purposely fail to work together, for the benefit of their corporations, and to the ruin of the Fukushima people.
We’ve learned the U.S. evacuation zone of 80 kilometers is far more appropriate, given the true extent of contamination revealed by university studies that continue to stream (scream) in. We know that many areas in, and around Iwaki, Fukushima City, Koriyama and Mito should be off limits to anyone not wearing protective gear, as the experts, affirm that people who remain in these areas might as well be pitching a tent inside a nuclear power plant. Finally, we’ve read the reports where radiation from the failed plant has reached the International Date Line, some 4000 kilometers away the shores of Japan.
I could go on and on about the misdeeds, deceit, dishonesty, media collusion, and toothless watchdogs that continue to prove their truly incompetent demeanor. I could continue to malign the asinine blunderings courtesy of TEPCO, but that is not the true intention of this article.
Surprisingly, in spite of all the glaring defects, and the obvious laws that support TEPCO’s board facing criminal proceedings, if you'd give any credence to the TEPCO mouthpieces, you’d think the company was the true victim in all of this. You’d think that TEPCO was not responsible for any of this shameful, nuclear nightmare that Japan faces, and will continue to face for hundreds, if not thousands of years into the future. Of course, TEPCO’s “claims of innocence” are made to appease the few shareholders that somehow managed to linger on through the endless electrical storm. Yes, ironically, despite all evidence to the contrary, the company denies any, and all culpability for destroying, as former Prime Minister Kan stated in an interview with The New York Times, "One third of Japan."
Let's look at TEPCO's claim
For the sake of argument let’s take TEPCO’s unconscionable claim, on its face. Let’s pretend that TEPCO is not culpable for the nuclear nightmare. Let’s say that TEPCO has not been negligent in handling what has inevitably become the worst nuclear accident since Chernobyl, and quite possibly even worse than that. Only time will tell. Let's ignore the fact that TEPCO shareholders have called for a shareholder's compensation lawsuit against TEPCO's top management for their failure of management duties. Let's also disregard that Daini, which borders the 20-km evacuation zone near Iwaki, had itself barely avoided a full meltdown, which would have heaped even more woes on the energy giant, the ineffectual nuclear agencies, the nation, and the world. Let’s do remember that the energy giant for years reaped huge profits, while fraudulently overcharging customers by 10%, and is the largest energy company in Japan, as well as the world’s largest privately held utility company, with deep pockets. Let’s also remember that Tokyo’s government has turned their back on TEPCO, and focused on Chubu Electric Power for their future energy needs.
For argument’s sake, let’s say that TEPCO had always, and continues to be, an exemplary example of how a corporation ought to manage an energy facility that utilizes fuel rods, spent fuel, and the ungodly perilous MOX fuel, to do one thing; produce steam to turn a turbine, which produces electricity that is needlessly wasted on glitzy billboards nobody looks at, shop displays that assault the senses, tasteless pachinko parlor displays, and superfluous gadgets, all for the specialized suitability, and allure of the general masses that can no longer afford them.
Let's concur with TEPCO’s board when they wrote to their shareholders on Jan 13 that, "There was no lack of due diligence (on the part of TEPCO) that would warrant a liabilities claim." Finally, let us oppose Futaba mayor Idogawa who refutes TEPCO's protective stance, "To say that (TEPCO) board members are not responsible makes a complete mockery of us." He continued, "If they aren't responsible, (for the nuclear disaster) why should we have to accept all this radiation? Whose fault is it that we're living as evacuees? Isn't the act of exposing us to all this radiation a crime? Isn't it?" So, in that, we’ll also leave out the criminal elements, and criminal charges the corporation’s board should have already been arrested for, as it is clear that the District Attorney’s in all the prefectures that have been subjected to the harm caused by TEPCO, intend to do the same.
Alas, however, for TEPCO, whether they have committed no sin, or they have acted in reckless disregard of their corporate duties, and to the general public, as we all know they have, the issue of liability is sealed. It is a done deal! TEPCO is liable for any and all harm caused, be it an individual, a family, personal property, a business, agricultural land, or any, and all other claims that would arise against the company for allowing dangerous radiation isotopes to spew from its plant, and blanket a great portion of Japan’s once majestic landscape. The hard fact is that any plaintiff that files an action against TEPCO for any harm as a result of the nuclear “incident” would prevail under the tort doctrine of strict liability. TEPCO’s claim the “monster” from the sea caused their harm would be ineffectual, as there is no defense to ultra hazardous activities under the law.
Ultra hazardous activities
Ultra hazardous activities are defined as any action or process, which is so inherently dangerous that any person conducting the activity is strictly liable for any injury, caused by the activity. Ultra hazardous activities include the use of explosives, radioactive materials, and the storage of hazardous chemicals and materials, such as spent fuel rods.
Ultra hazardous activities present interesting liability issues. The Second Restatement of Torts uses the phrase ”abnormally dangerous” instead of the more traditionally used “ultra hazardous” term. Tort claims brought under a theory of strict liability are often defended under theories that the plaintiff assumed some type of risk of the ultra hazardous activity. However, contributory negligence is not a defense or mitigating factor to cases brought under a theory of ultra hazardous strict liability. The clear rule here is, if you bring a product to the marketplace, and that product is ultra hazardous, and it causes any harm, there is no defense available. The maker of that product, and any third-party within the chain of production, and distribution is liable for all damages that arise from that product, regardless of how properly the product was manufactured, or handled by the defendant.
The essential elements of a claim of strict liability for ultra hazardous activities are as follows:
- The defendant carried on an ultra hazardous activity.
- The activity caused plaintiff to suffer injury, damage, loss or harm.
- The defendant recognized or should have recognized that plaintiff's person or property was likely to be harmed by the activity or the unpreventable miscarriage of the activity.
Any student that attends law school is required to take a first year course in tort law. In this area of law there is one topic that receives a great deal of attention, and that is the subject of products liability. Products liability finds its way on every bar exam in both essay, and multiple choice format. Generally product liability laws apply to any manufacturer, or supplier of a product that has been designed in a defective manner, and unreasonably threatens the personal safety of the consumer.
The rise of strict liability
Of the various U.S. states, California was the first to throw away the fiction of a warranty, and to boldly assert the doctrine of strict liability for defective products. In Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963), Justice Traynor laid the foundation for strict liability with the following words: “Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.
It is evident that the manufacturer can anticipate some hazards, and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer, and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public.
If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.”
The year after Greenman, the Supreme Court of California proceeded to extend strict liability to all parties involved in the manufacturing, distribution, and sale of defective products, including retailers, and in 1969 made it clear that such defendants were liable not only to direct customers and users, but also to any innocent bystanders randomly injured by defective products.
The decision in Greenman not only obliterates any claim that TEPCO is not liable for the nuclear fiasco, it also brings the American company, that manufactured two of the three failing reactors into the suit. This legal process is known as an impleader, where a defendant may bring other parties (defendants) into a suit, so that any damages that may arise would be distributed among any defendant found liable. You would recognize one of these other defendants as a company that boasts, “bringing good things to life.” That same company that made $40 billion in 2010, and didn’t have to pay a single red cent in taxes for those profits. That company is General Electric the manufacturer of two of the failing reactors. Another impleaded defendant that would be thrown to the fray is Toshiba, the manufacturer of one of the other failed reactors.
Since the Greenman decision, many jurisdictions have been swayed by Justice Traynor's arguments on behalf of the strict liability rule. These jurisdictions include the European Union, Australia, and Japan. Japan incorporated the Greenman doctrine into Japan’s Product Liability Act, Act No. 85 of 1994.
According to the World Nuclear Association, "Operators of nuclear power plants are liable for any damage caused by them, regardless of fault." The concept in question here is where a corporation produces a product that is so inherently dangerous, that if it causes any harm to the end-user, the maker of that product is held strictly liable for any damages that arise, regardless of any negligent action or fault. This means even where a company has not engaged in any fault, they are still held accountable.
Even something other than the product itself can cause it to be defective. For example, improperly storing spent fuel rods. Dangerous products should also always carry a warning label that explains, in plain language how they should be handled, under what circumstances they are likely to cause harm, how to properly store those products, and what steps must be taken in an emergency involving the product.
Instead of focusing on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective. The difficulty with negligence is that it requires the plaintiff to prove that the defendant's conduct fell below the relevant standard of care. It’s quite a difficult, and expensive task to find, and retain quality expert witnesses who can establish the standard of care required, the breach, and causation of the plaintiff’s harm. This is exactly the reason that strict liability shifts the burden of proving causation from the plaintiff, over to the defendant, to prove their product did not cause the harm in question.
Whether TEPCO acted intentionally, recklessly, negligently, or exemplary does not matter. Under the Japan’s Product Liability Act, Act No. 85 of 1994, the laws of products liability are well defined. TEPCO is liable for any, and all damages caused by the three meltdowns, they tried so desperately to hide from the general public, for as long as they could, and regardless of the resulting harm to the public, it’s corporation’s reputation, and their shareholder’s investments.
TEPCO, under the laws of Japan, is strictly liable for any damages, and must suffer the resulting consequences, by putting every single person, family, or entity harmed, back in the same position they were in, prior to the catastrophe that, in reality could have been avoided had TEPCO clearly understood, accepted, and honored their duty, not only to the shareholders that gave them the funds to expand their corporation to what it had been prior to 3.11.11, but also to the general public as a matter of public policy.
© Japan Today
45 Comments
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Simon Rowson
I know this isn't a poetry site but I thought some of you might appreciate the following as I wrote it in utter disgust, being a permanent resident of Tokyo who experienced the Tohoku earthquake firsthand and who then incredulously witnessed its aftermath's continuing administrative incompetence and corruption. (BTW, this is meant to be broken up into 5 stanzas of 4 lines apiece but Japan Today's format doesn't allow this. SR)
THE BALLAD OF TEPCO
"Our sole concern's our stocks and shares
As for the farmers, we don't care,
Let them starve or let them flee
Did they really think energy came risk free?
They took our cash when we wanted land
So who are they to reprimand?
We openly built a ticking bomb
Now the atom is king and their farms are gone
Just for the moment, we'll pretend we're sorry
With false concern and falser worry,
Luckily, the memories of fools are short
And blunders soon hidden with favours bought
Today we'll resign, so full of regrets
But blink an eye and we're back - the government's pets.
Will we make the same mistakes? Oh, that's funny!
Of course we will you moron if it makes us money
So is there any land for sale near you?
We've designed a facility that's totally new.
But the risk's the same as it was before
Risk to you, not us - we're covered by law."
Jack Stone
Thanks for sharing your comments.
Remember 3.11.11.
Stack
gyouza
There are - you can invest in your own solar power, and actually sell the excess back to TEPCO. Seems to pay for itself in 10-12 years, depending on usage. You go green, and TEPCO gives you money so you stop feeling sick.
I think there may be some confusion about increase rates, what I believe happens (but I'm not 100% certain though) is there is a base rate which has increased 17% for business users (not domestic). That doesn't mean the humble man in his mansion won't be completely unaffected though; the bill is made up of base unit charge (depending on your ampere rating you contracted for) x usage + "fuel cost adjustment" which is like the fuel surchage on airlines, and moves with market price.
I think Zichi commented that fuel imports hadn't increased significantly, but that doesn't mean that reserves aren't being used up (I'd be surprised though, given the amount that went up in flames at that depot on March 11). I have no idea how it is calculated to be honest, but I have no real idea how airlines calculate theirs either, it never seems to move as I would expect. Also, it could refelct the cost of TEPCO having to buy electricity from other sources in Japan too. Anyway that fact that people in Tokyo and non TEPCO clients also had an increase would indicate it is a common practice, so like it or not, even if you could choose another provider, chances are they are ramping up production and exposed to the same fuel cost fluctuations as TEPCO. Crude has risen 20-30USD per barrell over just two years, and is not stable. I don't recall gas or coal movement just now.
Mine has remained flat, but consumption dropped.
Jack Stone
My bill has nearly doubled. Imagine, cause this mess through gross recklessness, get bailed out by taxpayers and then charge them nearly double rates. So much for the 17% increase. Honestly, it sickens me to pay a Tepco electric bill. There should be alternative choices.
GW
zichi,
I shud have just said fuel, but yr correct oil hasnt changed much, & I believe over time has been decreasing due to changes in demographics, hollowing of industry etc.
I will be keeping an eye on my electric bill tho!
GW
JS,
Well I have noticed one coincidence, but I am more than willing to live with it, my electric bill has jumped in the later part of 2011, perhaps earlier & I didnt notice, but typically I wud pay Y10,000 for electricity approx. in Nov or Dec but am getting hit just shy of Y15,000 at least a 40% increase, I iwll be watching my next few bills to see if this continues.
No doubt some is due to increased imports of fuel oil, but looks like I(we) am already paying into tepcos coffers to pay ""compensation""................
Jack Stone
GW.
I think we all feel the same frustration. Here were are, only two reactors online, and there are no electricity issues. At all!
This documentary.
The Truth About Nuclear Power. (Japanese with English Subs).
http://www.youtube.com/watch?v=eBVQ3B-Jvrw&feature=related
Is just fantastic at addressing many of the issues raised here. The documentary discusses the issue of liability and the limits placed on it, by bureaucrats, and sites those documents.
A great watch.
There is also a Q&A at the end of the document.
Simply, people in Japan need to get up and do something.
Windscape. A bunch of liars. Chernobyl. A bunch of liars. Three Mile Island. A bunch of liars. Fukushima. A bunch of liars.
Atmospheric testing blanketed the entire planet with Strontium 90. Depleted uranium used in bombs to commit genocide.
On and on...
There are scores of other documented crimes. Example: In south Florida, FPL intentionally dumped millions of gallons of highly radiated water into the Everglades. I can go on and on in this area. France. England's abomination, the AIR COOLED REACTOR AT WINDSCAPE. These people claim to be the smartest people in the world. I think they are a bunch of rogue criminals, psychopaths, that have committed serious fraud in getting this "energy" online for huge profits. And that is the bottom line.
It's simply a market and the "cheap" and "clean" energy propaganda is by far the most costly energy ever.
Imagine how many accidents have been sealed?
Like Chernobyl clean up will not be one time. It will be again, and again, and again. Fukushima will also follow this path.
Fact. MOX used at Fukushima number 3 is 200,000 times more dangerous than that of Chernobyl.
The deception is mind boggling.
GW
JS,
An interesting read although the legalese stuff gets tuned out mostly, the sad thing as you finally pointed out on 3/6 @1148 is that the courts simply make it up as they go along.
The reality in Japan is that there are laws, HOWEVER, to who/what they MIGHT apply to is totally left to the courts & the govt which very clearly can & do direct court decisions in Japan ALL THE TIME.
So while I suppose from an academic point of view this might be interesting to discuss, in reality in Japan it only very rarely actually applies, sadly politicians, Japan Inc & their ilk are far to often WAY beyond the reach of laws. OK once in a while there will be a sacrificial lamb, but even then most receive suspended sentences, very rare to do any real jail time,
So while tepco is told to sell some assets, I doubt those accountable will have their assets seized & sold or see any jail time even though there are clearly an awful lot of criminals out there directly involved in this & getting off scott free, I particularly hate this in March when my taxes are, its extremely unpleasant to say the least.
Sorry for ragging on, thx jousting with all us jt malcontents LOL!!!
Jack Stone
Some great documentaries on the subject.
The Truth About Nuclear Power. (Japanese with English Subs) http://www.youtube.com/watch?v=eBVQ3B-Jvrw&feature=related
The Fukushima Nuclear Accident. http://www.youtube.com/watch?v=f0It57JosDA&feature=related
Silent Storm. http://www.youtube.com/watch?v=FbbSEkyPtkY&feature=related
Meltdown At Three Mile Island. http://www.youtube.com/watch?v=eLPAigMuBk0&feature=related
Windscale Britain's Nuclear Disaster. http://www.youtube.com/watch?v=ElotW9oKv1s&feature=related
Into Eternity. Onkalo. http://www.intoeternitythemovie.com/
Chernobyl Disaster Incident. http://www.youtube.com/watch?v=bSRC1_OZPIg
The Doctor, Depleted Uranium, and the Dying Children. http://topdocumentaryfilms.com/doctor-depleted-uranium-dying-children/
If you have others, please feel free to post.
garomakaikishi
TEPCO will walk away scott free and nothing is going to happen or change. nuclear power will remain in japan
gyouza
Like 8mio USD for having hot coffee spilt, and 5mio USD for buying a new BMW that had a paint defect? Reasonable conclusions? It is the money aspect that scares me the most, the latest scam is a woman (a lawer herself) suing Honda because the car she bought does manage to do the mileage claimed in advertising - numbers that were calculated by an independant body, and a common method across all cars. This kind of story makes a mockery of the US judicial system, and in comparison, the Japanese one would seem to be whiter than white. It isn't, I know, but the overriding difference is the focus on accountability rather than liability. The latter driving an economy of litigation. Now thats repugnant.
The reason for me to harp on about this aspect is that no matter how much money is involved, these people who evacuated from the exclusion zone may never get their life back:
You can't buy community spirit, or the close bonds of friendship. These people will have to relocate, leaving behind generations of close ties. Thats what I think is the saddest part of this apect of the triple disaster, the loss of community.
Jack Stone
K. Thank you for your concise input. Absolutely fantastic! The terms exclusive and absolute are "modern" terms for strict liability. And, yes I agree that Japan's courts are entirely repugnant, and determinations almost never based on standards of reasonableness.
gyouza
In this case, the "land" I mentioned was referring to Japan generally, not just the region. Should have said "country" instead - apologies!
The agriculture will get back completely on its feet once the salt deposited by the tsunami is cycled out of the soil - sounds like that is succesfully moving ahead. I know not all farming areas were affected, but as you will know, the flatter areas are nearer the ocean. The reason for mentioning it is that Japan is so dependant on imports of food, that the little arable land there is needs to be conserved for argriculture. Swapping the roles of land would seem logical as you suggest, I'm not suer the soil is te right acidity or maybe too saline to be productive. Probably not best to start the "should we be growing ultra-subsidised rice on this valuable land" here - that might go on for way too long!
kwbrow2
Japan is not party to any international liability convention but its law generally conforms to them. Two laws governing them are revised about every ten years: the Law on Compensation for Nuclear Damage and Law on Contract for Liability Insurance for Nuclear Damage.
Plant operator liability is exclusive and absolute, and power plant operators must provide a financial security amount of JPY 120 billion (US$ 1.4 billion) - half that to 2010. The government may relieve the operator of liability if it determines that damage results from “a grave natural disaster of an exceptional character”, and in any case liability is unlimited.
For the Fukushima accident in 2011 the government set up a new state-backed institution to expedite payments to those affected. The body is to receive financial contributions from electric power companies with nuclear power plants in Japan, and from the government through special bonds that can be cashed whenever necessary. The government bonds total JPY 5 trillion ($62 billion). The new institution will include representatives from other nuclear generators and will also operate as an insurer for the industry, being responsible to have plans in place for any future nuclear accidents. The provision for contributions from other nuclear operators is similar to that in the USA. The government estimates that Tepco will be able to complete its repayments in 10 to 13 years, after which it will revert to a fully private company with no government involvement. Meanwhile it will pay an annual fee for the government support, maintain adequate power supplies and ensure plant safety.
While I find TEPCO reprehensible. I find the courts in Japan more reprehensible. In the end the government will decide compensation. Courts are a waste of time and money in Japan.
Jack Stone
G. I have driven from Namie, all the way to Iwate. I have done it several times, and I lived in the Sendai area for three years. There are no mountains at all. It is entirely flat land, until you reach that segment of Iwate, which has been destroyed 3 times in the past 100 years. From town to town, you see completely destroyed communities, one after another. Yet, the agricultural land remains almost entirely in tact. The rice fields survived, but the towns didn't. I surf, I want to live on the ocean, but I don't want to live on the ocean in Iwate.
gyouza
It sounds wonderfully obvious, but what are the alternatives in a land that is very mountainous, and not very arable?
Much more to this issue than superficial "problems" - any one of of us could point fingers, but which of us could really say "I told you", or "I instigated the changes needed"?
Jack Stone
G. Thanks for the comment. Tepco only provides 40% of Tokyo's power, and the Tokyo government is already negotiating with Chubu Electric from Nagoya to provide the areas power. The issue is the 17% increase in fees. SImply, the government has been bailing out the company, and then the company tried to raise fees by 17%. This is the beginning of the denial, and the reality check. I believe - anyway.
Also, about half of the energy from Tokyo comes from Niigata. And, there are only 2 reactors in operation at this time. 53 are offline. All of Tepco's are offline, and... do you see any energy problems? Black outs? Any! I think this nation has been scammed into building plants, with tax dollars, the nation never needed.
G. I have spoken countless times on the issue of building towns in tsunami zones, again and again and again. Iwate has been completely destroyed THREE times in the past one hundred years. How much do you have to cry, to get it? YOU CAN'T BUILD AND YOU CAN'T LIVE THERE. Just look at a map of Japan, and look at where Iwate is. There is a giant gaping hole where scores of tsunami's have ripped it apart over the past millennia.
Ironically, go look at most areas destroyed. Towns right on the ocean, with agriculture sitting in the "safe" zones. It should have been flipped the other way around. Agriculture on the coast, and homes out of harms way. Seems too obvious to be so, I guess! Fishermen complaining, that they need to live right on the beach! The five-ten minute drive to a safe zone, was really that inconvenient? Well, my father, uncles, grandfather, and great grandfather are all fishermen, and I grew up in Miami, where a zillion hurricanes have wreaked havoc. We didn't live on the beach! And I spent my entire life on the ocean.
Go figure?
How great would it be if Japan redesigned their coast and flipped it around. How great for tourism to be able to see the ocean, instead of the abhorrently ugly buildings that block the view.
And...
Those tiny little, meandering streets all over the ocean have got to be redesigned so people can get in and get out. How many people did we witness die in tsunami videos simply because they were caught in the maze of streets, as towers of water rushed at them.
G. Great issues raised. I hope Japan thinks about this, but from what I have seen, they are rebuilding exactly the same way, in the same places. When will this country learn? When will any?
Jack Stone
Thanks S. Wow! I am jealous! You must have excellent Japanese skills, this is about the only thing keeping me from working full time in law in this country. I'm about a level 2. Mostly, though what you want is a thesis, and an online article can't get into that much specifics in law. I'd love to write a 50-70 page article, but this wouldn't be the right forum. I just wanted people to learn, and understand the doctrine of strict liability, and how it applies to nuclear accidents. In my "opinion" (opinion piece), there has been meetings between the government and Tepco. Tepco is, and has been paying damages, and not out of the goodness of their black hearts. They have sold billions in assets to cover damages. There is no way, the government would let them walk on something of this magnitude, and I'm sure strict liability played a significant role, as well as the companies history of well-documented fraud. I think the deal was, you pay, we help, you quietly resign, and we don't criminally prosecute. Deal? Deal!
Also, keeping in consideration this is the largest privately held energy company in the world. If they go under, it really damages Japan in many arenas. Simply, we as humans dug ourselves into a pit. We need nuclear energy because fusion energy is estimated at 30 years away, and alternatives are not up to speed either.
I wanted to punch Tepco in the nose, and I hope I did. Nobody is slapping them around, and they should be slapped HARD! I have been inside Namie. I have seen the deserted streets. I fed a starving horse. I photographed a cattleman before he committed suicide. I've been to Soma, Minamisoma, Haranoumachi, Iidate, Futaba, Fukushima, Koriyama, Iwaki, Mito. It would sicken you to see it up close and personal. You would weep terribly. Those Fukushima people have been beaten as if they were a plague. Those hardworking people, in that gorgeous part of Japan, have been heaped upon more grief than anybody deserves. Rich fat cats at Tepco deserve to feel that pain.
Some of my photos: japantsunami.lightbox.com nuclearjapan.lightbox.com photojournaljapan.wordpress.com japan1yearl8tr.wordpress.com
Thanks S. for taking the highroad and not getting into a bitter squabble. I appreciate it.
Jack Stone
PS. Idogawa is alluding to information that he is privy to, and I was made privy to through a professional contact that used to work in the now evacuated Haranoumachi. Even without that, there were numerous crimes committed, one being the falsification of records where one of the units core was cracked and remained in operation. This is the falsifying maintenance records, that we have heard so much about, without getting all the facts. I'm still working on all those facts, but have a great portion. I only lack names for the information to be verified and accurately released. FYI - Falsifying records, and recklessly operation a reactor, that is known to have a cracked core is very much a crime. This isn't anything new, as Tepco was caught by NHK, in Niigata and other areas, such as Fukui, doing the same thing. We all have been lead to believe that there have been no criminal elements in their gross conduct. That is misleading. There actions are truly criminal. Thanks for the input.
choiwaruoyaji
The article, the comments following it and indeed this topic in general are just too difficult for me.
It's doing my head in.
gyouza
Although I understand what is written, I'm not sure what point is being made. TEPCO is a publicly traded company with finite reserves of cash which we can seek to reclaim to compensate those affected (no objection to that) but what is left? Absolutely nothing, meaning Tokyo has no electricity. Do you then sue the shareholders too, or should they be suing too for loss of their portfolio value? Even if you bring in Toshiba and GE you will never get all the money you need to restore life to what it was, but what disturbs me is the focus on liability as opposed to accountability.
Although they sound very similar, it sounds like Jack is more focused on financial compensation for victims as opposed to retribution for those who may have allowed for this situation to persist in the first place. Alas, that would be thousands of people and include ex-Presidents and Prime Ministers and hoards of other dignitary'sas well as numerous employees of all the companies involved and the regulators supposed to be overseeing them. Unless people are held accountable, you will get the same behaviour pattern again.
It is no state secret that nuclear power can be dangerous, and that danger is not a new discovery either. Conversely, the size of the disaster was unprecedented, I've not met a single person who said "I knew that was coming". We all live in Japan knowing there will be another earthquale this week. We don't know how big, how close, or how damaging it will be, and yet we still live here - based on that should we expect builders to ensure our homes and offices will withstand anything? If not get your money back, and few hundred dollars for every dead member of the family? Should the Japanese governement have built 100m walls around the coast to protect from ANY tsunami that could ever hit Japan (is 100m high enough?).
The issue is deeper than getting money out of an organisation.
senseiman
Jack,
Perhaps the reason I am being so critical is that I am actually a gradutae of a Japanese law school (in addition to a Canadian one) and therefore when I see articles that purport to discuss Japanese legal issues I expect them to discuss Japanese law rather than American law. As an article about American product liability I'm sure your discussion is excellent. But when applied to a Japanese case such as this one it just begs the question - would it not have been a much better and more informative article if you had written about the applicable Japanese law?
I understand that you are American and are thus most familiar with American law and practice. Still though, it would have been nice.
Phil Stilwell
"Isn’t the act of exposing us to all this radiation a crime? Isn’t it?"
It isn't.
A crime is something contrary to a law. Idogawa can submit a moral argument if he'd like, but to intentionally confuse the 2 does no one any good.
Jack Stone
S. 1) I don't have to make a showing that Tepco is going to be held liable. They are being held liable, and I am certain it is because of the concept of strict liability. They are paying, and being held accountable. But, as usual taxpayers bail out the big boys. If Tepco had, in reality, (not in statements made to the press to appease shareholders, etc.) denied any and all claims, there would be class filings, and probably receive no government bailouts as a result. I'm sure there was, and still continues to be, a lot of back room dealings regarding this matter. 2) Tepco's monopoly is not how I put it, it is how you put it. I never mentioned the topic in the article. And I agree with you, the subject of a monopoly is not useful in this particular article. How much of the article was edited you ask? Quite a bit, of course. But, I'm pleased the subject was posted, as it was meant to give people that never heard the concept of strict liability the understanding of what is at stake for big companies that blunder. 3) Yes, type inserted intentionally. I try to keep attacks out of blogs, or keeps things light because words are hard to make a determination regarding attitude. As you know, there are a lot of malcontents from the west living in Japan. I've seen online wars as a result of simple misunderstandings. 4) I do agree, laws on the books and laws in action are not the same in Japan. Thus, my comment, that all laws are subject to interpretation. It's quite clear Japan has a constitution, that was written by U.S. lawyers. It includes concepts such as equal protections, etc. It is also clear that Japan's courts have either no intention of honoring such doctrines, or they simply are incapable. The U.S. gave Japan several opportunities to write their own constitution. They were incapable. The U.S. wrote it, and said -- sign here! 5) Comparative analysis, or conflicts comes down to substantive, and procedural concepts. The fact is, one U.S. citizen could be the named party in a class action, with thousands of Japanese citizens brought into the same claim, and into a U.S. court, through forum shopping, or by naming GE, Tepco, and others as defendants, etc. Of course, the defense would try to have the case moved to a court convenient for their defense, (laws favorable to the defendant), and may prevail. But, regardless of where the harm was felt, as you know, where a company can be found doing business, that jurisdiction is an appropriate forum. I think we're arguing the same thing here, as I do agree with your points here.
Thanks for your comments, and concerns S. Much appreciated! Now, I wish the Japanese government, the IAEA, the JAEA, the NRC, and energy companies had as much consideration as you. And I wish these blog programs would stop trying to retype words! Have a good rainy day!
senseiman
Jack,
The subject matter is strict liability, and the article was edited by Japan Today.
How much did they edit it? The title and the entire first half of the article make it entirely clear the subject matter is TEPCO`s liability to Japan and not strict liability in general. Strict liability only enters the article about 2/3 of the way through.
First, you state that there is not enough detail in the article, and then you say all the details weigh it down.
I at no point said there was not enough detail in the article. I said that your focus on strict liability rather than on the other issues I mentioned was misplaced. At any rate if the article was simply one about strict liability then those details you include about strict liaility wouldnt have been a problem for me. The problem is that as I said the first half of the article is entirely dedicated to arguing against TEPCO and a clear understanding of how TEPCO is actually going to be held liable never enters the article. You just skip from that to strict liability which, though I have no doubt you accurately summarize it, isnt a particularly useful concept to help the reader understand how TEPCO is actually going to be held liable. I understand that you want them to be held strictly liable, but you should explain why that is a better solution than what is actually happening.
Tepco's "monopoly", as you put it
It isntas I put it, but an empirical fact enshrined in law. That might change in the future and there are a lot of forces acting to undermine it, but my point was that there are a lot more costs to breaking up a firm in TEPCOs position that differentiate it from other firms. There is no arguing that. This isnt a defence ot TEPCO, I hasten to add, but just a point I raised to illustrate why a discussion of strict liability rules as they normally apply isn`t particularly useful in this situation.
Your rush to attack the article is apparent with the massive amount typos you left behind.
You left a typo there.
The UCC doctrine has been entirely craned, and codified into Japanese law. This makes the entire U.S. doctrine of strict liability applicable.
Name dropping: You should read some John Haley, Mark West, Curtis Milhaupt, Frank Upham and....well, just about every American legal scholar who has written about the codification of American laws in Japan. Laws in the books and laws in action are not the same thing.
You allude to Conflicts of Law doctrines
I did not. I referred to comparative law, which is a completely different field from conflict of laws. Conflict of laws - in the question of the degree to which TEPCO will be liable to the victims of its massive tort - dont come into play. The act happened in Japan, committed by a company incorporated in Japan, Japanese nationals were the primary victims, etc etc. Might be applicable in the case of GEs liability as you say, but I wasnt talking about that.
To say that American legal "sources" whatever those are, are not applicable to Japan, clearly shows that you don't understand the basic doctrines of Conflicts.
First year law school. The laws applicable in Japan are Japanese laws (conflict of laws doctrine notwithstanding). Laws from other jurisdictions can be influential but not directly applied. My point was merely that a discussion of how the law on strict liability was applied in Japan rather than in the US would have been much more useful. All you have stated is your assumption that because Japan codified American doctrine then all the discussion on how the rules work in the US are applicable.
I`m not an expert on Japanese product liability, but I can tell you from the areas of Japanese law that I am familiar with (corporate law and anti-monopoly law) is that both were heavily influenced by American legal concepts yet neither is applied in anywhere near the same way that they are in the US.
Jack Stone
O. Thanks for your interest, (and staying on topic).
1) The UCC strict liability doctrine was incorporated into Japan's law regarding products liability, via Japan’s Product Liability Act, Act No. 85 of 1994. The doctrine applies in Japan.
2) You are throwing criminal and civil issues into one pot. Like water and oil, they simply don't mix. It is automatic that nuclear reactors are inherently dangerous, and thereby incorporated into the doctrine. As the rules clearly state, there is no defense, none available, none, to damages that arise from harm caused by inherently dangerous products. There are many defenses related to many different civil and criminal offenses. There are numerous defenses, and many do not apply to a particular set of facts. No defenses apply to strictly liable. It's part of the doctrine, and I agree with it. Even where the company had done nothing wrong. That is the main point of the article. If a company denied that a product, that is already defined as inherently dangerous, is not inherently dangerous, they would be sanctioned. It would be laudable. The firm would be defeated terribly and sued for malpractice.
Murder has nothing to do with a product being dangerous in and of itself, or not. Murder is defined as a state of mind - the mens rea, or mental state of the crime. Strict liability has nothing to do with the mental state, as negligence, recklessness, or exemplary performance is not even a consideration - which are clearly mental states. Also, murder is a criminal act, where product liability is a civil action. In criminal court, a DA would have to prove their case 99%. In a civil case, there is no DA and the case only has to be proved by - 51%. There is a great difference from facing life imprisonment, or the death penalty, and having your pockets emptied.
Also, there are many categories of murder - first degree, second degree, manslaughter, heat of passion, etc., there are different rules, and different mental states that apply to each and every one of the murder rules.
oikawa
Why would any of that be applicable in Japan? You said that there are GE offices in Japan and Tepco offices in the USA but any damages that might possibly be claimed in practice against Tepco by dint of those offices existance would be so negligible as to be absolutely worthless in practice. The govt. would simply not allow it, and alluding otherwise shows a very poor knowledge of Japan, or the workings of any international relationship.
Of course there is. Simply deny it was inherently dangerous. What you say is like saying there is no defense against murder. Well of course there isn't in a way, if you did murder someone then you are guilty in theory of murder, but it's still up to the prosecution to prove their case. Just like here it's up to someone to prove that Tepco should have provided better defenses in case of a tsunami or earthquake. That's where the strict liability lies and until that's admitted by those that need to admit it what you, or anyone says, is irrelevant.
Jack Stone
Thanks Z.
I went to school for entertainment and law, not physics. : ) But, I am certainly not incorrect in every aspect of my understanding of what happens with a meltdown. By burning out of control, I mean the core is gone, it breached its containment, and at this point, dangerous radiation is leaking into the environment, and it will do so for a very long time.
No wonder there are differences in opinions as to what happens in a meltdown when the IAEA, the NRC and other toothless agencies don't "officially" (intentionally) define it. I especially like the definition below as it uses wording like, informal, accidental, unintentional, remote...
Now, if I can only figure out what the heck, microsevierts, sevierts, becquerels or curies really mean, and how to measure them accurately, I'd either feel a bit more at ease, or surely be ready to pack my stuff, and head on out of Dodge!
--
Nuclear meltdown is an informal term for a severe nuclear reactor accident that results in core damage from overheating. The term is not officially defined by the International Atomic Energy Agency or by the U.S. Nuclear Regulatory Commission. However, it has been defined to mean the accidental melting of the core of a nuclear reactor, and is in common usage a reference to the core's either complete or partial collapse. "Core melt accident" and "partial core melt" are the analogous technical terms for a meltdown.
A core melt accident occurs when the heat generated by a nuclear reactor exceeds the heat removed by the cooling systems to the point where at least one nuclear fuel element exceeds its melting point. This differs from a fuel element failure, which is not caused by high temperatures. A meltdown may be caused by a loss of coolant, loss of coolant pressure, or low coolant flow rate or be the result of a criticality excursion in which the reactor is operated at a power level that exceeds its design limits. Alternately, in a reactor plant such as the RBMK-1000, an external fire may endanger the core, leading to a meltdown.
Once the fuel elements of a reactor begin to melt, the primary containment has been breached, and the nuclear fuel (such as uranium, plutonium, or thorium) and fission products (such as cesium-137, krypton-88, or iodine-131) within the fuel elements can leach out into the coolant. Subsequent failures can permit these radioisotopes to breach further layers of containment. Superheated steam and hot metal inside the core can lead to fuel-coolant interactions, hydrogen explosions, or water hammer, any of which could destroy parts of the containment. A meltdown is considered very serious because of the potential, however remote, that radioactive materials with long half-lives could breach all containment and escape (or be released) into the environment, resulting in radioactive contamination and fallout, and leading to radiation poisoning of people and animals nearby. The amount of radioactivity released into the environment due to a core melt is measured in becquerels or curies.
Jack Stone
Hello, and thank you for your comments.
1) PV. You asked, what could you do as a foreigner in Japan? First, were you harmed physically, or economically. Example: Do you lose a contract as a result of the disaster? Were you forced to evacuate? etc. If so, you would have a valid claim.
We all know that April is the beginning of the school year in Japan. Many teachers from around the globe came to Japan, in March, and there was a mass exodus that immediately followed, the disaster, leaving thousands of teachers, who paid their airfare, visa expenses, travel expenses, training expenses, and other expenses such as utility deposits, cell phone, lost salary, where they couldn't perform due to impossibility. Also, U.S. citizens were ordered to evacuate by the U.S. government, which placed airplanes on the tarmac at Narita airport for anyone that wanted to leave. As a result of those losses, those people would be able to collect all resulting damages as a result of the nuclear disaster.
2) Z. The article is about strict l liability and was edited down by the Japan Today editor, which was kind enough to put the article online. The article was actually much longer. The fact is even Chernobyl is still burning out of control, under the ground. The fact is there are three reactors in DaiIchi, and they are definitely burning out of control. That's what meltdowns are. They are so hot that nothing can contain them. No steal, no concrete housing, nothing! They simply melt through the floor and burn into the ground - thus, the moniker - China Syndrome.
3) O. You are wrong. Strict liability made its way into the UCC (Uniform Commercial Code), which was adopted by 49 of the U.S. states, and had already set the standards as to when strict liability is triggered. Just manufacturing, or distributing an inherently dangerous product, in and of itself, is enough to trigger liability. The fact is, there is no defense available to manufactures of inherently dangerous products that cause harm. And that is the main point of the article; If a product is placed into the stream of commerce, and is inherently dangerous, and it causes any harm to anyone, in anyway, regardless of the manufacturers claim, that they were not negligent in causing the harm, they are still liable. Period!
4) S. You won me a free beer and a free sushi dinner. I bet that it wouldn't be ten people before someone, (from the west of course), would malign the article. Do you work for the NRC?
The subject matter is strict liability, and the article was edited by Japan Today. a.) S, wrote "It focuses too much on some legal liability rules that dont really help us understand the situation at all." What situation don't you understand? The article is about liability. Strict liability. I find your statement vague, as I am sure others do too. b.) First, you state that there is not enough detail in the article, and then you say all the details weigh it down. Huh? c.) Tepco's "monopoly", as you put it, in the Tokyo area has received the kiss of death, with the Tokyo government already negotiating with Chubu Electric, in Nagoya to provide electricity for the Tokyo area. There has simply been too much harm done to allow Tepco to escape unscathed. They have been told if they want another cash handout, the entire board must go. I'm sure the greedy shareholders will see to that as their own lawsuit moves forward. d.) As a sensei, you should know the real questions "are." Your rush to attack the article is apparent with the massive amount typos you left behind. Clearly, you gave little thought to your response. e.) The UCC doctrine has been entirely craned, and codified into Japanese law. This makes the entire U.S. doctrine of strict liability applicable. Of course, subject to interpretation, as all laws are, but this doctrine is not difficult to understand. f.) You allude to Conflicts of Law doctrines, in your final "assessment" of my writing. Rules of commerce, impleader, foreign convenience, who the defendants are, and where they do business, all play a role as to what countries laws would apply. Example, Tepco has offices all over the U.S., they do business all over the U.S., therefore it is a strong argument, whether or not strict liability was part of Japan's law or not, that strict liability should apply because Tepco does business in the U.S., and GE, the manufacturer of two reactors, is a U.S., based company doing business in Japan.
You try to make it seem that everything is law is black and white, and that one country only uses the laws of its own country to make legal determinations. You are entirely wrong if that is what you are saying, and Conflicts doctrines clearly show this. To say that American legal "sources" whatever those are, are not applicable to Japan, clearly shows that you don't understand the basic doctrines of Conflicts. Most assuredly, if GE was dragged into a Japanese court, the U.S. laws would certainly be a consideration by the courts and all parties concerned, and they would be argued extensively. Especially, where engineering, design, and manufacturing of two of the failed plant were done on U.S. soil, and two of the U.S. engineers that had quit when the plant was being designed, due to their concerns that the designs would fail, would make the use of U.S. laws an even stronger argument.
I have a good idea. Why don't you write and article dealing with all the issues you raise. I'd love to read it. Man!
senseiman
As a law school grad myself I cant say that I am particularly impressed by the article. It focuses too much on some legal liability rules that dont really help us understand the situation at all.
It is pretty obvious, without the need for going into all the details that weigh the article down, that under normal liability rules TEPCO would be on the hook for all the damages caused.
Normally the scale of the liability in this case would drive the company into bankruptcy, however, which wouldnt do anything to compensate the victims as liquidation of TEPCOs assets wouldn`t be enough to cover the bills. Also TEPCO is in a regulated industry with a monopoly on providing power to the Tokyo area and as such it cannot be broken up like any other company could be without serious consequences.
So just saying TEPCO is denying responsibility but really they are liable so we should be mad and they should pay, which is the point of this article, doesnt tell us anything we didnt already know (or feel). The real question is how the compensation is paid, how government money is used (without it the victims wont be compensated adequately) and how TEPCO will repay that (equity stake in the company, bonds,etc). We dont get any discussion of any of that, I assume because it would have required rational analysis and research and wouldnt let him right an angry articletelling it like it is`, man.
Also the author seems to assume that because Japan adopted a product liability law that incorporated US doctrines all of the rules of American product liability law are somehow now directly applicable in Japan. Notice that almost the entire legal discussion has nothing to do with Japanese law (applicable in Japan) and entirely relies on American legal sources (not applicable in Japan). As any comparative law scholar will tell you, the mere fact that a country has adopted a certain legal doctrine that is used in another country does not mean that the specifics of that doctrine are applied in the same way and it certainly doesn`t mean that the laws of that other country are suddenly applicable.
CaptD
Japan is now being ruled by those in Nuclear Denial*; instead of by TRUE Leaders that demand an end to the Trillion Dollar Eco-Disaster RISK that Nuclear poses to mankind!
How would Japan pay for yet another Fukushima, remember Nature does not follow design basis calculations or even engineering RISK formulas… How low can the PM Bow?
The nuclear industry is fighting tooth and nail to maintain it’s market share; yet NOW Solar (of all flavors) is far less costly to construct, faster to construct and carries with it N☢ Nuclear radioactive baggage that can kill a Countries economy and or those living nearby!
CaptD
Remember of all the groups, the Yakuza will probably profit the most from the 40 to 100 year clean up as the Japanese spend Many Hundreds of Billions of YEN...
I think of Fukushima as a GIGANTIC MAKE WORK PROJECT for them!
They will end up running Japan, growing stronger than ever before...
I also think future generations will look at what is happening in Japan as a perfect example of a Government using Science to condem its citizens to an unhealthy future in order to make money for those that control the Government!
TEPCO is now engaged in a Health War not only against the Japanese People but all those living on Earth, downwind from Fukushima!
oikawa
Whatever the official legal guidelines are it comes down to the same thing, i.e. whether Tepco should have recognized the danger. As it says in the article when he gives the 3 claims for strict liability it's still a matter of proving the defendant acted in a hazardous manner, and Tepco will continue to deny they had any way of predicting a tsunami of that size, which is the crux of the matter.
wanderlust
The tentacles of the "nuclear village" are too deeply embedded throughout Japan's industry, ministries, academia and local government, as well as the mass media who are scared to report the facts for fear of losing advertising revenues, and the organised crime groups who provide the disposable labour and deter too much investigation.
There is probably not a minister, lawyer, judge or prosecutor who could stand up to them at the present time.
I should also add that Hitachi should be added to the list of companies who built the reactors. Babcock-Hitachi foundry in Kure built some of the reactor vessels.
@Pepper Valston - Citizens' Nuclear Information Center is an anti-nuclear public interest organization dedicated to securing a safe, nuclear-free world. The Center was formed to provide reliable information and public education on all aspects of nuclear power to ultimately realize this goal. CNIC was established in 1975 in Tokyo to collect and analyze information related to nuclear energy including safety, economic, and proliferation issues and to conduct studies and research on such issues. It has publicised the problems with the nuclear industry and it's supporters for years, in both Japanese and English.
Pepper Valston
This a bold & enlightening explanation of the law as it is.
I doubt many readers are fully aware of the strictures of strict liability nor the extent to which firm(s) outside Japan are implicated in this case.
It seems to me we need to know more about how exactly Japan incorporated the Greenman Doctrine into Japan’s Product Liability Act, Act No. 85 of 1994 and how this bears on Japanese law and the possible interpretation of The Greenman Doctrine in Japanese court hierarchy.
Assuming that the author's claims can be verified independently, the next Q would be: What should we do as foreign residents of Japan?
Would it make sense to set up a "Group/NGO" to publicize this catastrophe,fiasco,snafu (wish I could use the words I want to use here)or is the situation hopeless?
Personally, I'm most upset about the iconic American company's role in all this.......it seems to me that lawsuit(s) are in order but as I am not an attorney I am really asking Mr. Stack Jones, esquire and/or his Japanese counterparts to comment.
Hopefully, continuous, concentrated, committed citizen action can bring some relief to the victims.
Thank you for your work in bringing this to my attention, Mr. Jones
gaijinTechie
Truth well spoken!!
nath
I like this guy. He writes a wall of text ... but oddly enough, it's not the usual boring type of wall. He has many valid points as well as an entertaining way of presenting his facts.
I hope he writes more articles.
sillygirl
excellent article. yet, for all that japanese law, we tax payers are going to have to bend over........