Filed: Jul. 30, 1998
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-31268 _ HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC, Plaintiffs-Appellees, v. MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc., BLUE EMERALD SHIPPING CO; KASSOS MARITIME ENTERPRISES LTD In Personam; ASTROLABE SHIPPING LTD, In Personam, Defendants - Appellants, _ ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS MARITIME ENTERPRISES LTD; MOUNT YMITOS MV, for exoneration from or limitation of liability, Pla
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-31268 _ HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC, Plaintiffs-Appellees, v. MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc., BLUE EMERALD SHIPPING CO; KASSOS MARITIME ENTERPRISES LTD In Personam; ASTROLABE SHIPPING LTD, In Personam, Defendants - Appellants, _ ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS MARITIME ENTERPRISES LTD; MOUNT YMITOS MV, for exoneration from or limitation of liability, Plai..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-31268
_______________________
HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
Plaintiffs-Appellees,
v.
MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc.,
BLUE EMERALD SHIPPING CO;
KASSOS MARITIME ENTERPRISES LTD In Personam;
ASTROLABE SHIPPING LTD, In Personam,
Defendants - Appellants,
______________________________
ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD;
KASSOS MARITIME ENTERPRISES LTD;
MOUNT YMITOS MV, for exoneration from or
limitation of liability,
Plaintiffs - Appellants,
v.
HAL ANTILLEN NV, ET AL.,
Claimants,
HAL ANTILLEN NV; HOLLAND AMERICA LINE WESTOURS, INC.,
Claimants - Appellees,
______________________________
ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD;
KASSOS MARITIME ENTERPRISES LTD;
Plaintiffs - Appellants,
v.
NOORDAM MV; IN REM;
HAL ANTILLEN NV, OWNER, IN PERSONAM
Defendants - Appellees,
______________________________
V A O EXPORTKHLEB; ROSSIYA INSURANCE COMPANY LTD OF MOSCOW,
Plaintiffs - Appellants,
v.
NOORDAM MV, its tackle, etc. in rem;
HAL ANTILLEN N V;
HOLLAND AMERICA LINE WESTOURS, INC., in personam,
Defendants - Appellees.
_______________________
98-30306
_______________________
HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
Plaintiffs - Appellees’
v.
MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc.,
in rem; BLUE EMERALD SHIPPING CO; KASSOS MARITIME
ENTERPRISES LTD, In Personam;
ASTROLABE SHIPPING LTD, In Personam,
Defendants - Appellants,
_______________________________
ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS
MARITIME ENTERPRISES LTD; MOUNT YMITOS MV, for exoneration
from or limitation of liability,
Plaintiffs - Appellants,
v.
2
HAL ANTILLEN N V; ET AL
Defendants,
HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS, INC,
Claimants - Appellees,
________________________
ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS
MARITIME ENTERPRISES LTD,
Plaintiffs - Appellants,
v.
NOORDAM MV, in rem; HAL ANTILLEN N V, owner, in personam,
Defendants - Appellees,
_______________________
YVONNE CLAIBORNE HUMPHREYS, individually and on behalf of
all passengers aboard the M/V NOORDAM on 11/6/93,
Plaintiff,
v.
HAL ANTILLEN N V; ET AL,
Defendants,
HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
Third-party plainitffs - Appellees,
v.
MOUNT YMITOS MS, her engines, tackle, furniture, apparel, etc.,
in rem; BLUE EMERALD SHIPPING LTD;
KASSOS MARITIME ENTERPRISES LTD; ASTROLABE SHIPPING LTD,
Third-party defendants - Appellants,
_______________________
3
V A O EXPORTKHLEB; ROSSIYA INSURANCE COMPANY LTD OF MOSCOW,
Plaintiffs - Appellants,
v.
NOORDAM MV, its tackle, ect., in rem; HAL ANTILLEN N V;
HOLLAND AMERICA LINE WESTOURS INC, in personam,
Defendants - Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
July 30, 1998
Before JONES and SMITH, Circuit Judges, and SHAW, District
Judge.*
EDITH H. JONES, Circuit Judge:
Appellants Astrolabe Shipping Ltd., Blue Emerald Shipping
Ltd., and Kassos Maritime Enterprises Ltd., individually and as
claimants of the M/V MOUNT YMITOS and the MOUNT YMITOS, in rem
(hereinafter collectively referred to as “appellants” or “the MOUNT
YMITOS”) appeal the decision of the district court, after a trial
to the bench, which apportioned liability against them for a
collision in the Southwest Pass south of New Orleans. We reverse
the district court’s finding that there existed a custom of passing
starboard to starboard in the waterways in which the collision
occurred. Although as to the court’s other findings and
conclusions we find no reversible error, we must remand to allow
*
District Judge of the Western District of Louisiana,
sitting by designation.
4
the district court the opportunity to reapportion liability in
light of this modification.
FACTUAL BACKGROUND
As appellees Hal Antillen N.V. and Holland America Line
Westours, Inc. (hereinafter collectively referred to as “appellees”
or “the NOORDAM”) state, this case turns on a turn. On the night
of November 6, 1993, at approximately 8:40 p.m., the NOORDAM, a
33,933 ton passenger liner, and the MOUNT YMITOS, a 33,186 ton
cargo ship, collided in the Southwest Pass, a shipping lane south
of New Orleans, Louisiana. The waters in which the collision
occurred are governed by navigation “traffic laws” known as
COLREGS, 33 U.S.C. § 1602 et seq. (International Regulations for
Preventing Collisions at Sea, 1972).
The NOORDAM was inbound heading northward, returning from
a tour of the Caribbean. The MOUNT YMITOS was outbound heading
southward, leaving for a trip to St. Petersburg, Russia. The MOUNT
YMITOS was in the shipping lane to the east of the NOORDAM; the
vessels were starboard side to starboard side. The NOORDAM did not
become aware of the MOUNT YMITOS’s position until 90-120 seconds
before the collision. Initially, the MOUNT YMITOS was off the
NOORDAM’s starboard side showing only green lights to the NOORDAM.1
1
A ship has green lights on her starboard side and red
lights on her port side for identification. Therefore, when one
approaches a ship head-on, one sees both green and red lights. If
one sees only the starboard side of a ship, one would see only
5
The NOORDAM, therefore, could have concluded that the ships would
safely make a starboard-to-starboard pass. However, shortly
thereafter, the MOUNT YMITOS made a sudden starboard turn at high
speed. Instead of seeing green lights, the NOORDAM now saw only
red lights. In order to avoid the collision, the NOORDAM made a
hard turn to port, but it was too late. The vessels collided.
The district court conducted a nine day bench trial to
determine fault. The court’s factual findings were reached with
considerable difficulty:
All areas of this litigation have been hotly
contested and not even the location of the impact could
be agreed to by counsel for the parties. If the Court
accepted the position forwarded by each side, this
collision would have never happened[;] in fact, there
would have been approximately one mile to spare.
Unfortunately, that is not the case and this Court has
been put in the uncomfortable posture of making critical
factual decisions based upon conflicting and limited
evidence. Credibility of the witnesses and the
credibility of the vessels’ documentation were the
deciding factors for the Court in this litigation.
The court apportioned 90% of the fault to the MOUNT YMITOS and 10%
to the NOORDAM. The MOUNT YMITOS timely appealed.2
green lights.
2
The appellants filed this case originally as an
interlocutory admiralty appeal under 28 U.S.C. § 1292(a)(3) from
the district court’s interlocutory judgment on liability entered on
November 29, 1996. After full briefing and oral argument before
this court, the trial of the damages portion of the case proceeded
in the district court. On March 31, 1998, the district court
entered judgment as to the amount of damages thereby entering final
judgment in this action. At the parties’ request and because the
final judgment does not raise new issues in this appeal, the record
6
DISCUSSION
1. Standard of Review
A district court’s findings of fact are reviewed for
clear error. See F ED. R. CIV. P. 52(a); Burma Navigation Corp. v.
RELIANT SEAHORSE MV, 99 F.3d 652, 656-57 (5th Cir. 1996). “Where
the court’s finding is based on its decision to credit the
testimony of one witness over that of another, ‘that finding, if
not internally inconsistent, can virtually never be clear error.’”
Id. at 657. Questions of negligence, proximate cause, and
allocation of fault are normally factual questions. See
id.
2. Discussion
A. Custom of starboard to starboard passing
The district court found that in the area in which the
collision occurred, there exists a custom of passing starboard to
starboard. MOUNT YMITOS along with the Associated Branch Pilots,
appearing as amicus curiae, argue that the district court erred by
declaring a custom of starboard to starboard passing in the area of
the Southwest Pass. We agree.
As a general matter, “[c]ourts do not favor giving effect
to local customs involving deviations” from the rules of
in this case has been supplemented to include the March 31, 1998,
judgment and the district court’s Order and Reasons. The actions
have been consolidated, and this appeal is now from a final
judgment.
7
navigation, and they make an exception only when the customs “are
firmly established, and well understood.” The GIOVE, 27 F.2d 331,
332 (5th Cir. 1928). “A custom will be recognized only if it does
not conflict with the rules of navigation. Custom that contradicts
a statutory rule of navigation will not be enforced.” 2 Thomas J.
Schoenbaum, Admiralty and Maritime Law § 14-2, at 260-61 (1994).
The COLREGS and other navigational statutes are binding enactments
that must be adhered to closely. See
id. at 256. COLREG 14
provides that vessels will ordinarily pass port to port. Because
this collision occurred within an area governed by the COLREGS, the
superposition of a starboard-to-starboard passing “custom” could be
confusing.3 Moreover, the custom found by the district court in
this case is not published. There is highly contradictory
testimony concerning the existence or nonexistence of this alleged
custom in this waterway. Accordingly, we hold that the district
court clearly erred by finding a custom of passing starboard to
starboard, and we reverse on this issue. The district court,
however, declined to assess liability based upon its conclusion
that the MOUNT YMITOS failed to follow this alleged local custom.
3
Even though the finding of a “custom” does not have the
force of law, invariably applicable to each case, see Canal Barge
Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1361 (5th Cir.
1985), we are concerned lest the district court’s finding of a
custom in dubious circumstances like these may take on a life of
its own.
8
The court’s fault findings principally depend upon the
applicability or inapplicability of the COLREGS to this fact
situation. Our disagreement with the court’s finding of a custom
will not impugn its ultimate judgement.
B. Applicability of the COLREGS
Applying the COLREGS, the district court found that the
MOUNT YMITOS was overwhelmingly responsible for the vessels’
collision because the MOUNT YMITOS violated COLREG 7(b) (proper use
of radar equipment); COLREG 2 (responsibility and good seamanship);
COLREG 8 (failure to take action to avoid collision); and COLREG 17
(failure to maintain course and speed or make other passing
arrangements with the NOORDAM). Compare Acacia Vera Navigation Co.
v. Kezia, Ltd., 78 F.3d 211 (5th Cir. 1996).
In assessing the NOORDAM’s responsibility for the
collision, the district court ruled that “the NOORDAM should have
kept a better lookout both visually and with the highly
sophisticated equipment onboard.” The court then concluded that
the NOORDAM’s “one failing” was that it had violated COLREG 7(b)
because it failed to use her radar system properly to take
advantage of an early warning of the MOUNT YMITOS’s approach and
take evasive maneuvers to avoid the collision.
MOUNT YMITOS contends that the district court erred at a
minimum by not finding that because the NOORDAM had not maintained
9
a proper visual lookout, she also violated COLREG 5.4 Although
this is peculiar, we find no reversible error, as the court decided
that the NOORDAM’s failure to maintain a proper lookout was not a
proximate cause of the collision:
The Court holds that NOORDAM should have kept a
better lookout both visually and with the highly
sophisticated equipment onboard. . . . The Court does not
believe that this was the proximate cause of the
collision; however, the Court is satisfied that if
NOORDAM had kept a better lookout, visually and through
ARPA/radar, she would have been aware of the location and
maneuvers of MOUNT YMITOS.
After reviewing the record, we cannot say that the district court
clearly erred in concluding that the NOORDAM’s mistakes were not a
proximate cause of the collision. See Burma Navigation Corp., 99
F.3d at 657. There is sufficient evidence to support the district
court’s conclusion that the proximate cause of the collision was
the poor seamanship of the MOUNT YMITOS and her imprudent turn to
starboard moments before the collision. See Acacia
Vera, supra.
By the same token, the court’s failure to find other
COLREG violations on the part of the NOORDAM is also supported by
the record. For instance, we decline to disturb the district
court’s implicit finding that the NOORDAM did not violate COLREG
14. The position of the two ships in this case was determined only
after the district court was “put in the uncomfortable posture of
4
COLREG 5 mandates that all vessels “at all times maintain
a proper look-out . . . so as to make a full appraisal of the
situation and the risk of collision.”
10
making critical factual decisions based upon conflicting and
limited evidence,” and we do not find clear error in its
conclusions.
C. Apportionment of Liability
MOUNT YMITOS next asserts that the court misapplied
principles of comparative fault. In maritime collision cases, the
court must allocate liability proportionate to the comparative
degrees of the parties’ fault. See United States v. Reliable
Transfer Co., 95 S. Ct. 1708, 1715-16 (1975).
The court apportioned 90% of the fault to the MOUNT
YMITOS and 10% to the NOORDAM. It based this conclusion on its
evaluation of the testimony of numerous witnesses, the NOORDAM’s
ship logs, and the fact that the log books of the MOUNT YMITOS had
been significantly altered. See Andros Shipping Co. v. Panama
Canal Co., 184 F. Supp. 246, 259 (D.C.Z. 1960) (“The unexplained
alteration of a ship’s record of maneuvers ‘not only cast[s]
suspicion on the whole case of the vessel, but creates a strong
presumption that the erased matter was adverse to her contention.’”
(quoting The Chicago,
94 F.2d 754, 762 (9th Cir. 1937))). A
thorough review of the record is persuasive that the district court
did not misapply the principles of comparative fault, but its
erroneous finding of a starboard-to-starboard passing custom may
11
have influenced the allocation.5 See Hellenic Lines, Ltd. v.
Prudential Lines, Inc., 730 F.2d 159 (4th Cir. 1984).
CONCLUSION
For the foregoing reasons, we reverse the district
court’s finding of a custom of passing starboard to starboard in
the waterways in which the collision occurred. The judgment is
VACATED and REMANDED to afford the district court the opportunity
to reapportion liability.
VACATED and REMANDED.
ENDRECORD
5
MOUNT YMITOS also objects to the district court’s refusal
to admit evidence of the conclusions reached after investigations
by the Coast Guard, the National Transportation Safety Board, and
the Dutch NSI. There was no abuse of discretion, however, given
that no rule requires admission of these reports.
12
JERRY E. SMITH, Circuit Judge, dissenting:
I agree with the panel majority's well-reasoned conclusion
that no custom of starboard passage exists. But I disagree with
the panel majority's endorsement of the district court's conclusion
that COLREG 14 was not applicable in this situation. The COLREGS
govern the three basic proximity situations: overtaking (rule 13),
head-on (rule 14), and crossing (rules 15-17). No one argues that
this was an overtaking situation. And the district court did not
err in its conclusion that the MOUNT YMITOS's failure to maintain
course precluded it from claiming the privilege of a stand-on
vessel in a crossing situation. We are therefore left with COLREG
14 or nothing.
The district court and the panel majority have chosen the
“nothing” option. The district court found that “the instant
collision presented a passing situation,” and thus that the COLREGS
did not apply.
I am unaware of any other case that has propounded the
“passing situation” alternative to the statutory COLREGS.
Certainly, ships traveling in opposite directions may pass one
another with miles to spare, and never navigate with respect to one
another. But Congress has mandated that “[w]hen two power driven
vessels are meeting on reciprocal or nearly reciprocal courses so
as to involve risk of collision each shall alter her course to
13
starboard so that each shall pass on the port side of the other.”
COLREG 14.
There can be no doubt that these ships were on “nearly
reciprocal courses so as to involve risk of collision.” Roughly
twenty minutes before the collision, MOUNT YMITOS and NOORDAM were
traveling at 170 degrees and 325 degrees, respectively: nearly
reciprocal north-south courses, angled slightly toward one
another.6 The district court specifically found that when the
vessels were about 2½ miles apart, a computerized navigation system
determined them to be “on a collision course with a CPA [Closest
Point of Approach] of less than 600 feet.” When two vessels, each
weighing tens of thousands of tons, are on nearly reciprocal
courses so as to miss each other with only a vessel length or two
to spare, they are in a proximity situation to which the COLREGS
apply.
It is immaterial that the vessels may have been unaware of
each other's presence. Each vessel's negligent failure to fulfill
her duty under the COLREGS gives rise to liability, regardless of
the cause of the negligence. Courts have always required vessels
that should have been aware of each other to navigate with respect
6
These angling courses could be interpreted as presenting a crossing
situation. In that case, the result would be the sameSSthe vessels effectively
would be required to effect a port-to-port passage, but liability for their
failure to do so would be placed primarily upon the give-way vessel, in this case
the NOORDAM. See rule 15.
14
to one another.7 Both NOORDAM and MOUNT YMITOS must be held liable
insofar as they failed to effect a port-to-port passage, in
accordance with their duties under the COLREGS.
Because I cannot agree that this proximity situation was not
governed by the COLREGS, I respectfully dissent from Judge Jones's
well-written opinion.
7
See, e.g., Oliver J. Olson & Co. v. Luckenbach S.S. Co., 279 F.2d 662,
671 (9th Cir. 1960) (vessels “saw or should have seen” each other's sidelights).
15
