The opinion of the court was delivered by: STEWART
This action in admiralty
arises out of a collision which occurred on April 20, 1973 when the steamship American Aquarius ("Aquarius") was struck on her port side aft by the bow of the motor vessel Atlantic Hope ("Hope") in international waters south of the headland Shiono Misaki on the southern coast of Japan. Both vessels sustained damages. All cargo and personal injury claims have been settled. The case went to trial before us to determine liability for the collision damages. Set forth herein are our findings and conclusions on this issue.
There are three parties to the litigation: Pacific Bulk Carriers, Inc., owner and operator of the Hope; United States Lines, Inc., owner and operator of the Aquarius; and Yamashita Shinnihon Kisen K. K., a Japanese corporation and owner and operator of the motor vessel Sadoharu Maru ("Maru"). The Maru and its owner were brought into the litigation by Pacific Bulk through a third party complaint filed in 1975, two years after the action was commenced in 1973. The issues at trial were the liability, if any, of each of the three parties and, if more than one is found liable, the proportion of liability of each party held liable.
The Hope is an 18,389 gross ton bulk carrier, 634 feet 10 inches in overall length and 75 feet in breadth. The Aquarius is a 19,127 gross ton container carrier, 704 feet 6 inches in overall length and 90 feet in breadth. The Maru is an 8,780 gross ton general cargo vessel, 467.3 feet in overall length and 65 feet 6 inches in breadth.
The collision occurred early in the morning of April 20 at approximately 0321 hours. The night was dark and overcast; although there was occasional light rain, visibility was good, about six to eight miles. There was a light westerly wind and the current was also from the west.
At the time of the collision, all three ships were within an area in international waters off Japan as to which sailing lane separation rules (sometimes referred to as a traffic separation scheme ("TSS")) had been prepared by the Japan Captains' Association, a nongovernmental, unofficial body. These rules, like other similar rules or schemes, are designed to provide separate sailing lanes in areas of heavy deep-sea traffic. Typically, such a scheme provides for two separate lanes, one for traffic in one direction, the other for traffic in the opposite direction. The lanes are divided by a separation zone which traffic may not enter. Normally, traffic in a lane is expected to keep to starboard of the zone, that is, traffic entering the scheme keeps to the right of the zone. The TSS here involved is called the Shiono Misaki zone; the two lanes are one and a half miles wide and the separation zone one mile wide. At Appendix A is a copy of the zone as published by the Japan Captains' Association.
Traffic separation schemes were introduced in international waters in coastal regions sometime after World War II and the concept was accepted by the Intergovernmental Maritime Consultative Organization ("IMCO"). By the end of 1972 approximately sixty separate voluntary Sailing Lane Separation Schemes had been introduced, and a number of countries had made such schemes compulsory. The Shiono Misaki TSS, along with seven others off the coast of Japan, was established effective June 1, 1970 by the Japan Captains' Association. It was designed to conform to IMCO guidelines. The Association, which apparently has no official governmental status, submitted a request for observance of the scheme to the Japanese Shipowners' Association, the Coastal Shipping Association and the Japan Foreign Steamship Committee. As a result of the efforts of these organizations, the scheme received wide dissemination to both Japanese and foreign owners, operators, masters and other maritime interests. The captains of all three ships here involved, the Aquarius, Hope, and Maru, were aware of the scheme. However, none of the Japanese sailing lane schemes were submitted to nor approved by IMCO, the only organization empowered to recommend traffic separation lanes in international waters.
The events leading up to the collision were as follows. Aquarius left Kobe at 2300 hours on April 19, 1973 bound easterly for Yokohama. Her radar was in use and operating properly. At all material times thereafter, the master, watch officer, and an able seaman wheelsman were on the bridge; an able seaman was posted on the bow as lookout.
Prior to approaching the Shiono Misaki TSS, Aquarius had passed through two previous zones, observing the prescribed courses and lanes in each case. At about 0225, after leaving the second of these two TSS's, she set a course of 115o which, if maintained, would have taken her into the southerly, eastbound lane of the Shiono Misaki TSS. Her speed was about 23 knots through the water, her usual sea speed, which she maintained until immediately before the collision.
At 0227 hours, however, Aquarius observed that she was overtaking a large eastbound vessel on her port bow which appeared to be on a course which would take her across the bow of Aquarius from left to right. In order to pass this vessel to starboard, Aquarius altered course to port to 110o . When the overtaken vessel changed course to the left of 115o, Aquarius again changed course to 105o . After overtaking and passing the other vessel (which has never been identified), Aquarius came back to a course of 115o at about 0303 hours. (She remained on this course until moments before the collision.) However, Aquarius was then about 21/2 miles north of her original course and was headed directly into the westbound, instead of eastbound, lane of the Shiono Misaki TSS, which was approximately 11/2 miles to the east of Aquarius.
Aquarius thereupon at about or just before 0309 sighted the masthead, range and green (starboard) lights of three approaching ships which were crossing Aquarius from left to right off the port bow.
Shortly thereafter, the master of the Aquarius observed and plotted these vessels on radar off the port bow at distances of 51/2 to 61/2 miles; he also determined their approximate courses and speeds. These ships were the Maru, the Hope and the American steamship Colorado. The Colorado was then in the separation zone of the TSS; she remained on course in that lane and ultimately crossed well ahead of Aquarius. The Colorado did not become a material factor in the collision between Aquarius and Hope.
Upon sighting these three vessels, the master of the Aquarius concluded that it was the duty of the Aquarius as the privileged vessel in a crossing situation under International Rule 19 (see below) to keep course and speed; this was done, and properly so. Belden v. Chase, 150 U.S. 674, 698-699, 14 S. Ct. 264, 271-272, 37 L. Ed. 1218 (1893); see Northern Transportation Co. v. Davis, 282 F. 209, 211 (2d Cir. 1922); United States v. S. S. Malden, 224 F. Supp. 705, 708-709 (E.D.Va.1963), aff'd, 341 F.2d 292 (4th Cir. 1965).
Thereafter, as the Aquarius' master continued to observe the three crossing vessels, the Maru shortly after 0315 turned to starboard while about one mile from Aquarius, and safely passed the Aquarius port to port.
When Maru changed course, Hope was at least 11/2 miles from Aquarius and on an apparent collision course with Aquarius. When Hope was about one mile away, Aquarius sounded five blasts on her whistle. Hearing no reply and seeing no avoiding action by Hope, Aquarius sounded a second 5-blast signal about 0320. Moments later, the master of Aquarius ordered hard right rudder and sounded one short blast to indicate the course alteration. He also ordered slow and stop engines, which order was executed. At approximately 0321, Hope collided with the port side aft of Aquarius.
Maru was en route from Nagoya to Kobe, Japan. On her bridge at all pertinent times were the captain, the second mate and the quartermaster or helmsman. The second mate acted as lookout and operated the radar. She entered the westbound lane of the Shiono Misaki TSS, and maintained a speed over the ground of about 14 or 15 knots on a course approximately 250o . In the TSS, Hope initially was ahead and off the starboard bow of Maru on a parallel course. At about 0300, Maru began to pass Hope on the latter's left. The vessels were then about 1800 feet apart. At that time, Maru observed off her starboard bow the red light on the port side of the approaching Aquarius. Maru, which planned to change course shortly to 295o to conform to the shift in direction of the TSS, also observed that Aquarius was on a course which would be approximately the reciprocal of what the course of the Maru would be upon altering course to 295o .
After passing Hope at about 0305 without changing course or speed, Maru continued on course and drew ahead of Hope. At or shortly after 0315, Maru blew one blast and, in view of the approach of Aquarius, changed course to 295o, thereby crossing in front of Hope. We find from the conflicting evidence that Maru was close to three-fourths of a mile ahead of Hope when she crossed the latter's bow at about 0317. We also find that, when Maru turned to cross Hope, she was past and clear and there was no danger of collision.
Shortly thereafter, Maru passed Aquarius port to port at a distance of approximately one quarter mile and continued in a westerly direction until after the collision.
Hope was en route from Chiba to Oita, Japan. She planned to and did enter the westbound lane of the Shiono Misaki TSS on a course of about 250o ; however, she planned to continue on that course on the southwest leg of the TSS and then, instead of turning into the northwest leg as the Maru did, to cut across the zone towards Oita to the southwest. Accordingly, she would have passed through the separation lane and the eastbound lane, if she had not collided with Aquarius. On her bridge were her watch officer (second officer) and helmsman. No lookout was posted. Her master went below at about 0230 and, although aware that other ships were in the area, did not return to the bridge until a few minutes before the collision. Hope's speed over the ground was about 10 or 11 knots. The radar was not used during the relevant period.
After entering the westbound lane of the Shiono Misaki TSS, Hope was overtaken by Maru. Shortly before 0310, the Hope's helmsman observed the red light of Aquarius off the starboard bow of Hope. At this time and thereafter, the watch officer was not using radar but was relying upon visual observation by himself and the helmsman. About five minutes later, that is about 0315, the Maru turned to cross Hope's bow. As the Maru crossed the course of the Hope, her watch officer ordered 10o left rudder, apparently to make sure of avoiding the stern of the Maru. He did not signal two blasts as required by Rule 28. Since the Maru was well over a half mile ahead of the Hope and since it only took about 10 seconds for the Maru to pass across the course of the Hope, the Hope's turn to the left was unnecessary. In any event, almost immediately after giving the order to turn to port, the Hope's watch officer ordered that the rudder be returned amidships. At this time he also summoned the master to the bridge.
When the master arrived at around 0317 or 0318, he observed that the Maru had completed its crossing of Hope. He also observed Aquarius off the starboard bow on a crossing collision course with Hope. Although it is not clear whether the Hope was in fact still swinging left from the influence of the earlier 10o turn, the master was apparently under the impression that she was. After making his observations, he ordered hard left rudder and the engines full astern and sounded three blasts to signify that his engines were backing. At 0321, Hope collided with the port side of Aquarius aft.
Hope suggests that one reason for turning to port was because of the presence of another vessel to starboard and on parallel course to Hope. Neither the Colorado, the Aquarius nor the Maru observed any vessel to starboard of Hope at any time; we are not prepared to find that there was any vessel to starboard of Hope which would have interfered in any way with a starboard turn by Hope. Even if a vessel were present to starboard, Hope could have, without being in violation of the International Rules,
taken action to slow down or stop or even make a right turn. Publicover v. Alcoa S.S. Co., 168 F.2d 672, 677 (2d Cir. 1948); The Holly Park, 39 F.2d 572, 573 (2d Cir. 1930).
We turn now to the issue of liability. As to the Aquarius, she clearly was proceeding in the wrong direction in the westbound lane of the Shiono Misaki TSS. Her previous maneuvers to avoid a vessel which she overtook and passed before entering the TSS had placed her in a position from which, when she resumed her original course, she was headed directly into that lane. Hope contends that Aquarius' presence in the wrong lane was a major cause of the collision. Passing this question for the moment, it is clear that the applicable International Rules controlled once Aquarius had sighted Hope and Maru.
Shortly before entering the TSS, Aquarius sighted the lights of Hope, Maru and Colorado off her port bow. Under Rule 19 (33 U.S.C. § 1081), these three vessels having the Aquarius on their starboard sides had a duty to keep out of the way of Aquarius. The privileged vessel was Aquarius, the others were burdened as to Aquarius. Significantly, the masters and officers on duty of each of the three ships here involved recognized that under these rules Aquarius was privileged and Hope and Maru were burdened. Under Rule 21 (33 U.S.C. § 1083) Aquarius was required to maintain her course and speed at least until collision with another could not be avoided. Wilson v. Pacific Mail S.S. Co., 276 U.S. 454, 461-463, 48 S. Ct. 369, 370, 72 L. Ed. 651 (1928); Maroceano Compania Naviera S.A. v. S.S. Verdi, 438 F.2d 854, 857 (2d Cir. 1971). Pursuant to Rules 19, 21, 22 and 23, it was the duty of Hope and Maru to keep out of the way of the privileged vessel. Aquarius, keeping the approaching vessels under close observation, did maintain her course and speed until moments before the collision when she unsuccessfully took evasive action.
Maru, which was the only one of the three vessels observing the TSS
, was not only burdened as to Aquarius, she was also burdened as to Hope so long as she was overtaking Hope. Under Rule 24, Maru had the duty of keeping out of the way of Hope while overtaking her to starboard, and with this duty (and also her duty under Rule 21 to keep her course and speed) she fully complied. As we have found above, Maru was relieved of this duty under Rule 24 when she was finally past and clear of Hope. Thus, Maru's turn to starboard at about 0315 to cross safely in front of Hope was not in violation of Rule 24 and was in full compliance with Maru's duties under Rules 19, 21 and 22 to keep out of the way of Aquarius.
Hope, as her watch officer and her master were aware, was burdened as to Aquarius. Under Rules 22 and 23, she was obligated to take affirmative action to keep out of the way. This she failed to do. Either before or after Maru crossed in front of her bow from left to right (at an angle, incidentally, which slanted well away from Hope's course), Hope had plenty of time and opportunity to turn to starboard, to slacken speed or to do both in order to avoid Aquarius. Instead, she held her course and speed (save for the brief 10o turn to port and almost immediate return to course while Maru was crossing) ...