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IN RE SEIRIKI KISEN KAISHA

January 14, 1986

In the Matter of the Complaint of SEIRIKI KISEN KAISHA AND DRAGON NAVIGATION, S.A., Plaintiffs, as Owner and Bareboat Chartered Owner, respectively, of the M/V SEIRYU, for Exoneration from or Limitation of Liability; In the Matter of the Complaint of STENA GULF LINE, LIMITED, as Owner, and STENA LINE AB, as Disponent Owner of M/V STENA FREIGHTER, seeking Exoneration from or Limitation of Liability


The opinion of the court was delivered by: SAND

SAND, District Judge.

These consolidated limitation proceedings arise out of the collision occurring on October 29, 1981 between the STENA FREIGHTER which was proceeding from Miami to Panama, and the SEIRYU, which was proceeding from the Panama Canal to Houston, following which the Seiryu sank with substantial loss of property but, fortunately, with no loss of life. The litigation has proceeded in stages, the first of which involved the resolution of the question of whether Cuban law or the Brussels Collision Convention of 1910 was applicable. At the conclusion of a hearing held on June 19, 1985, this Court ruled that Article 4 of the Brussels Convention would govern certain issues as to liability in these proceedings. We annex as Exhibit A hereto the oral Opinion of the Court setting forth the reasons for that determination.

The next matters addressed by the Court relate to issues of liability. This Opinion constitutes our findings of fact and conclusions of law on liability issues, including petitions for limitation of liability and cargo claims. Questions relating to damages have been deferred until a later stage of these proceedings.

 FINDINGS OF FACT

 1. The Parties

 Plaintiffs in 82 Civ. 2681, Seiriki Kisen Kaisha ("Seiriki"), a Japanese corporation and Dragon Navigation, S.A. ("Dragon"), a Panamanian corporation, were respectively owner and bareboat charterer of the Seiryu. In the second proceeding, 82 Civ. 2718, Stena Gulf Line, Ltd., ("Stena Gulf") a Cayman Islands corporation, and Stena Line AB ("Stena AB"), a Swedish corporation, were respectively owner and bareboat charterer of the Stena Freighter. Stena Gulf and Stena AB filed claims in the first proceeding for damage to the Stena and Seiriki and Dragon filed claims in the second proceeding for loss of the Seiryu. The owners of Seiryu's cargo on their own behalf and on behalf of their subrogees, filed claims in both proceedings for the cargo loss. However, the Seiryu cargo interests have settled with the Seiryu vessel interests and are now claiming only against the Stena. The owners of the Stena's cargo have filed certain claims for the amount of any contributions they might be required to make toward certain general average expenses said to have been incurred by the Stena following the collision.

 Coordinated Caribbean Transport, Inc. ("CCT"), a Florida corporation, was time charterer of the Stena Freighter. Pursuant to a charter party containing an agreement to arbitrate disputes, CCT has withdrawn from this litigation.

 2. The Vessels

 The Stena Freighter was a 5,940 gross ton steel roll-on/roll-off motor vessel built in 1977 of 490.78 feet length and 70-73 feet in beam, registered in the Cayman Islands. The Seiryu was a 17,151 gross ton steel bulk carrier motor vessel built in 1976 of 180.16 meters length and 24.8 meters beam, registered in Japan.

 3. Navigation and Collision

 The parties have stipulated, Amended Pretrial Order at 4-5:

 
On October 29, 1981, the "STENA FREIGHTER," proceeding from Miami for Panama, and the "SEIRYU," proceeding from the Panama Canal for Houston, were in collision approximately 8.5 miles off Cape San Antonio at the westernmost end of Cuba, at 2330 "STENA FREIGHTER" time, 2230 "SEIRYU" time. The weather was clear and the visibility good.

 The Seiryu was manned by a Master and crew who were Korean. The Master of the Stena was Canadian and her other officers were British. Depositions were taken of the officers who were aboard the vessel at the time of the collision and these depositions were received in evidence, but the only witnesses to testify at trial were expert witnesses.

 The events immediately preceding the collision are in dispute and thus, to some extent, the Court is called upon to render determinations of the credibility of these witnesses. Since the credibility of both watch officers at the time of the collision is substantially impeached by the known documented facts concerning the position and movements of the ships, and since the testimony of these witnesses is to some extent implausible, we reject the version of the collision set forth by the watch officer of each vessel concerning his actions and omissions immediately preceding the collision.

 According to the Seiryu witnesses, that vessel, showing proper navigation lights, was proceeding at full sea speed on a northwesterly course south of Cape San Antonio, Cuba. Approximately twelve minutes before the collision, Third Officer Bae, standing the watch, had a contact by radar of another vessel, bearing 75 degrees on the Seiryu's starboard bow at a distance of approximately six miles. With binoculars, he could see the outline of the other vessel, two white lights and, dimly, a red side light. Since the two white lights were open, with the left-hand lower than the right-hand light, Mr. Bae concluded that the other vessel was running parallel to the Seiryu's course. He continued to observe the other vessel and noticed that she was coming nearer to the course of the Seiryu.

 The Seiryu interests further contend that approximately five to six minutes prior to the collision, Mr. Bae ordered the quartermaster on watch, who had been serving as look-out while the vessel was on automatic steering, to stand by the wheel. He claims that approximately four to five minutes before the collision, he flashed a warning signal to the other vessel by light. He sought to signal the other vessel by no other means. Receiving no response from the other vessel, which had more rapidly approached the course of the Seiryu, he ordered "hard left rudder" shortly before the collision. The order was executed, but the Stena Freighter crashed into the starboard side of the Seiryu in the area of No. 5 hold.

 According to the Stena Freighter's watch officer, she was proceeding on course 204 degrees on automatic pilot with her engines at full ahead, making a speed of 15.6 knots over the ground. A.B. Mr. James Conteh was standing watch as a look-out with Third Officer Richards. At 22:20, Stena time, Richards, having determined her position to be 14.2 miles north of Cape San Antonio light, and to the left of the plotted course line, altered course to 208 degrees to make good a course of 204 degrees true. There were no subsequent changes in the course or speed of the Stena Freighter prior to the collision and the vessel remained on automatic pilot until the collision.

 Richards testified at his deposition that he picked up the Seiryu by radar at a distance of more than fifteen miles on the Stena Freighter's port bow. About half an hour before collision, the look-out observed and reported the Seiryu's lights and Richards observed her lights at a distance of about twelve miles. Richards determined that the Seiryu was on a crossing course and that under the International Regulations for Preventing Collisions at Sea 1972 ("72 Col. Regs."), the Stena Freighter was the stand-on vessel and the Seiryu was the give-way vessel. Richards testified that he plotted successive positions of the Seiryu on the radar reflection plotter and concluded that the relative movement line was such that the Seiryu would pass astern of the Stena Freighter. As the vessels closed, Richards increased the range scale on the Stena Freighter's radar to the six-mile and then to the three-mile range. His continuing plots of the relative movement line showed the closest point of approach would be about a half a mile.

 Richards testified at his deposition that he then prepared to signal the Seiryu but as he was picking up the Aldis Lamp he noted a change in the configuration of the Seiryu's masthead lights and saw for the first time her red port side running light. He concluded that the Seiryu had made an alteration of course to starboard to make a safe distance between the vessels, as the Seiryu would pass off the Stena Freighter's port quarter and go astern of the Stena Freighter. Having reached this conclusion, Richards put down the Aldis Lamp and proceeded to occupy himself with navigational duties unrelated to the Seiryu. He took a fix on Cape San Antonio, which was now abaft the beam on the same side of the Stena as the Seiryu. He turned and took a visual bearing on Cape San Antonio. He went to the radar and measured the distance off the light. He then went to the chart table, located in the after part of the Stena Freighter's wheel house, and plotted the position on the chart.

 The look-out, Conteh, remained on the bridge as look-out while Richards was at the radar taking the range on Cape San Antonio and until about three minutes before the collision. He requested to go below to call the next watch, which permission Richards granted. After completing the navigational fix, Richards stepped around the chart table and, at that moment, saw the Seiryu dead ahead, proceeding at approximately a right angle across Stena Freighter's bow. Richards testified that he ran and put the controllable pitch propeller levers to STOP as the vessels collided.

 If one accepts either of these versions of the events preceding the collision, it would appear that on a clear night with no other vessels or navigational hazards in the area, with a full awareness of the presence of the other vessel, these two ships nevertheless managed to collide at right angles. The Seiryu does not dispute the fact that it was in violation of the 72 Col. Regs. or, for that matter, any other standard of good seamanship. It is undisputed that the Seiryu was the give-way vessel and failed to take timely action appropriate for a give-way vessel. The Seiryu's watch officer failed to determine the risk of collision, visually by radar or otherwise, and somehow reached the entirely erroneous conclusion that the Stena Freighter was on a parallel course. The Seiryu's watch officer failed to give the appropriate signals when the Seiryu altered course and most significantly failed to appropriately signal when she turned to port two or three minutes before the collision. This latter failure was of particular importance because the Stena Freighter's watch officer was not observing the vessel at this point, but, rather, plotting his fix on the chart.

 Of course, the most immediate cause of the collision was the Seiryu's turn to port, which brought her directly across the course line of the Stena Freighter. There is no way this can be explained and, indeed, the watch officer and other officers aboard the vessel could not offer any rational explanation; their only commentary was that the watch officer must have been possessed by demons or evil spirits.

 Although it fully admits its responsibility for the collision, the Seiryu maintains that the Stena also was at fault. It is the Seiryu's claim that at the critical times prior to the collision, no one on the Stena was observing the Seiryu and thus, no one was in a position to take avoiding action required by the Col. Regs. Col. Regs. Rule 5 requires that "[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision." It would appear that while proceeding at full speed and on automatic pilot, the watch officer permitted the look-out to summon the succeeding watch and occupied himself with navigational tasks that were not of an urgent nature. Thus, at the time of the collision, and in the moments immediately prior to the collision, there was no one aboard the Stena watching the Seiryu. Richards' explanation that he abandoned his intent to signal the Seiryu when he saw that the approaching vessel's running lights indicated a safe course change is not credible. But, even if accepted, it would not justify total abandonment of the bridge and look-out insofar as observation of the Seiryu was concerned. When two vessels are that close, constant observation is required, even though it may appear that the vessels are on a safe crossing course. There is, for example, no assurance that the give-way vessel may not experience some casualty, most critically, a steering casualty, that would suddenly create a condition of danger.

 The Stena's principal response to these contentions emphasizes its inability to avoid the collision, even while maintaining a diligent lookout, rather than attempting to justify the failure to constantly observe the Seiryu during the moments prior to the collision. In essence, it is the Stena's position that as the stand-on vessel, prudent seamanship and the Regulations required maintenance of course and speed and that any last moment alterations in this regard might have exacerbated rather than alleviated the danger of collision.

 However, the Stena could have done something if there had been a fuller appreciation of what was occurring. For instance, the Stena could have signaled the Seiryu not merely with the Aldis Lamp, Richards' alleged intent, but with a warning signal of at least five short rapid whistle blasts. Had such a signal been sounded, and had there been no reaction from the Seiryu, the Stena would have known that the Seiryu was a vessel which could not be relied upon to operate in accordance with the dictates of good seamanship. As we have already indicated, we take with a large grain of salt the deposition testimony of both watch officers concerning their awareness and observation of the other vessels. (It appears that Richards did make some notes immediately after the collision but these notes were not retained.) It is the Court's view that each vessel was essentially pursuing its own independent course intentions without an awareness of the other vessel. And, if this was the case, wholly or partially, the failure of the Stena to ensure by sound signals that the Seiryu was aware of its presence is a significant factor in the occurrence of the collision.

 The Seiryu argues that the Stena, although a stand-on vessel, was permitted under Col. Regs. Rule 17(a)(ii) to "take action to avoid collision by her maneuver alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules." Moreover, pursuant to Col. Regs. Rule 17(b) "[w]hen, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision." (emphasis added).

 The Seiryu, pointing to the Stena's high maneuverability (having twin screws and variable pitch propellers), suggests various maneuvers which the Stena could have taken had the Seiryu not reacted to a warning signal. Thus, the Seiryu suggests that Richards could have stopped the vessel dead in the water in two or three minutes, and that even in the last minutes before collision would otherwise have occurred, he could have turned his vessel sufficiently to pass astern of the Seiryu. The Stena indicated that any of these maneuvers might have been imprudent if they had been countered by the Seiryu's off-setting maneuvers. However, if there had been no response by the Seiryu to the Stena's warning signal, the Stena would then have known that the vessel bearing down upon it was one which was not likely to act with an awareness of the Stena's presence. It is for this reason that in determining that the Stena bears a degree of responsibility for the collision, we place primary emphasis on its failure to give a whistle warning signal rather than its failure to make any specific maneuver.

 CONCLUSIONS OF LAW AS TO NAVIGATION

 We conclude, as the Seiryu concedes, that its failure as the give-way vessel to alter its course and speed so as to avoid collision with the Stena was a violation of the Col. Regs. and was a substantial contributing factor to the collision. We also conclude that the failure of the Stena to maintain a proper look-out prior to the collision by having both the look-out and the watch officer engaged in other activities, although allegedly aware of the proximity of the Seiryu, was a violation of the Col. Regs. Also, the Stena's failure to give a warning signal was a contributing cause to the collision.

 Pursuant to Article 4 of the Brussels Collision Liability Convention of 1910, *fn1" this Court now faces the more difficult task of assigning percentages of fault to the two vessels. Article 4 provides in relevant part that:

 
"If two or more vessels are in fault the liability of each vessel shall be in proportion to the degree of the faults respectively committed. Provided that if, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, the liability shall be apportioned equally."

 Great Britain, one of the countries that either has ratified or adheres to the Brussels Convention, see United States v. Reliable Transfer Co., 421 U.S. 397, 404 n.7 (1975), assesses comparative fault by "look[ing] to both the relative culpability, or 'blameworthiness,' of the parties' faults and the relative 'causative effect' of each party's acts." *fn2" Afran Transport Co. v. S/T Maria Venizelos, 450 F. Supp. 621, 636 n.11 (E.D.Pa. 1978) (citing The "Statue of Liberty", [1971] 2 Lloyds L. R. 277,282 (H.L.); The "Esso Brussels", [1973] 2 Lloyd's L. R. 73 (C.A.); The "Salaverry", [1968] 1 Lloyd's L. R. 53 (Adm. Div.)) (emphasis in original). *fn3" While the Stena maintains that it should bear no liability for the collision, *fn4" the Seiryu's position is that the two vessels should bear equal liability because either the faults were in fact equal or it is not possible to fairly establish the appropriate percentages. See Brussels Convention Article 4, supra.

 This Court is of the opinion that while mathematical allocation is not an easy task, the circumstances of the instant case do not preclude a fair assessment of liability. *fn5" Moreover, it is of the opinion that the respective faults of the two vessels are not equal. The Stena's actions certainly do not warrant its exoneration from all liability. See text at 8-10 supra. However, this Court must conclude that greater fault lies with the Seiryu in terms of both culpability and causation because of its status as a give-way vessel and, most importantly, its inexplicable last minute course alteration. This ultimate maneuver guaranteed that the two vessels would collide in the manner they did with the attendant consequences. *fn6" This Court therefore determines that a fair allocation of responsibility for the collision is 60% attributable to the Seiryu and 40% attributable to the Stena. *fn7"

 CONCLUSIONS OF LAW AS TO INTERVENING FAULT

 The Stena argues that the failure of the Seiryu's crew to activate the vessel's pumps and their "abandonment" of the vessel in a state of panic without attempting to save it should act as an intervening fault breaking the chain of causation between the collision and the sinking of the Seiryu, thereby relieving the Stena of any share of liability for the damage resulting from the latter. In the alternative, the Stena contends that "[t]he gross negligence of the Seiryu's Master and Chief Engineer in allowing the Seiryu to sink increases Seiriki/Dragon's share of the responsibility for damages resulting from the sinking." *fn8" Stena Freighter's Proposed Findings of Fact and Conclusions of Law at 66.

 It is undisputed that the collision opened the starboard side of the Seiryu's No. 5 cargo hold. The Seiryu's Master, Captain No, decided to abandon the Seiryu approximately thirty minutes after the collision after receiving reports that the engine room was flooding at a rate that well exceeded the pumping capacity of the vessel. Proposed Findings of Fact and Conclusions of Law of Seiriki Kisen Kaisha and Dragon Navigation, S.A., at 18. The parties are in dispute on a number of issues regarding this decision to abandon ship: when did the flooding begin and what amount, if any, was caused by the Stena's attempts to free itself fifteen minutes after the collision; could the pumps have been activated and, if activated, could they have kept the engine room dry; would the Seiryu have sunk regardless of a dry engine room due to the existence of sagging ...


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