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In re Otal Investments Ltd.

January 4, 2006

IN RE OTAL INVESTMENTS LTD., AS OWNER OF THE M/V KARIBA, FOR EXONERATION FROM OR LIMITATION OF LIABILITY
OTAL INVESTMENTS LTD., THIRD-PARTY PLAINTIFF,
v.
CAPITAL BANK PUBLIC LTD. CO., ACTINOR CAR CARRIER I AS, WILH. WILHELMSEN ASA, WALLENIUS WILHELMSEN LINES, CLARY SHIPPING PTE. LTD., MST MINERALIEN SCHIFFAHRT SPEDITION UND TRANSPORT GMBH, & MINERAL SHIPPING CO. PRIVATE LTD., THIRD-PARTY DEFENDANTS,
AUGUSTA ASSICURAZIONI S.P.A., PLAINTIFF,
v.
WALLENIUS WILHELMSEN LINES AS, ET AL.,: DEFENDANTS,
ZURICH INSURANCE CO., ET AL., PLAINTIFFS,
v.
M/V TRICOLOR, ET AL., DEFENDANTS,



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

I. BACKGROUND

On June 12, 2003, Otal Investments Ltd. ("Otal"), owner of the M/V Kariba ("Kariba") filed a Complaint for exoneration or limitation of liability with respect to claims against it that arose from a collision between the Kariba and the M/V Tricolor on a foggy early morning in the English Channel. A trial to determine and apportion liability was held on October 17 -- October 21, 2005 and after post-trial briefs were submitted, the Court heard closing arguments on December 12, 2005.

Parties to this action include Third-Party Defendants, Clary Shipping Pte. Ltd., MST Mineralien Schiffahrt Spedition und Transport GmbH, Mineral Shipping Co. Private Ltd., owners of the M/V Clary (collectively "Clary"), and Capital Bank Public Limited Company, Actinor Car Carrier I AS, Wilh. Wilhelmsen ASA and Wallenius Wilhelmsen Lines AS, owners of the M/V Tricolor (collectively "Tricolor"). Also involved in this matter are various owners of damaged cargo (collectively "Cargo Claimants").

Previously, this Court held that a stipulation between the parties (including the various Cargo Claimants) that stated "Article 4 of the Brussels Collision Convention of 1910 applies to this action" and therefore "liability, if any, for claims between and among cargo interests, Otal, the Tricolor Interests and/or the Clary Interests shall be determined in accordance with the 1910 Collision Convention" meant that the parties had only contemplated the use of Article 4 of the Convention. In re Otal Invs. Ltd., 2005 U.S. Dist. LEXIS 13321 (S.D.N.Y. July 7, 2005)(Baer, J.). In a later Opinion, this Court determined that Article 6 of the Brussels Collision Convention abolished legal presumptions with regard to fault and precluded any application of the rule that emanated from The Pennsylvania, 86 U.S. 125 (1874) ("the Pennsylvania Rule"). In that case, and the rule it spawned, violation of a statutory rule intended to prevent collisions raises a presumption that the violation was a cause of the casualty. In re Otal Invs. Ltd., 2005 U.S. Dist. LEXIS 21580 (S.D.N.Y. Sept. 29, 2005)(Baer, J.).

II. FINDINGS OF FACT

Early in the morning of December 14, 2002, the Kariba, Tricolor, and Clary, along with several other unidentified vessels, were navigating in a Traffic Separation Scheme ("TSS") in the English Channel North of Dunkerque, France. The vessels were operating in restricted visibility due to fog. By approximately 2:05 a.m., both the Kariba and Tricolor had steadied on roughly parallel courses in the westbound lane of the West Hinder branch of the TSS. Both vessels had just made a turn at the Fairy South buoy and were navigating from way-point to way-point in their planned courses. At this same time, the Clary was also proceeding on a steady course in the northbound lane of the intersecting branch of the TSS. Tricolor was in the process of overtaking Kariba approximately half a mile off Kariba's starboard quarter. When Kariba and Clary were just about three miles apart on intersecting courses, Kariba made an abrupt turn to starboard and hit the port side of Tricolor, causing her to capsize and sink along with her cargo. Fortunately, there were no human casualties and the entire crew of the Tricolor made it safely on board the Kariba and another passing vessel.

Generally, Kariba argues that it was boxed in by the Clary and Tricolor and those vessels are at least partly to blame for the collision. There is no dispute that it was the duty of the Clary, as the vessel intersecting the West-bound TSS, to turn to starboard and go safely astern of the Kariba and Tricolor, and that is what the Clary did, but allegedly later than it should have and not before the Kariba turned to starboard and put itself on a collision course with the Tricolor.

As the three vessels navigated in a TSS they were tracked by Sofrelog, a shore-based radar located at Dunkerque, France. A series of images was obtained from data stored by the Dunkerque radar system. These images provided a common reference point to display the approximate positions of all three vessels in the moments leading up to and just after the collision.*fn1 While there is a time lag to reflect course and speed change of the vessels tracked, for the most part the Sofrelog images accurately reflect the approximate location of each vessel.*fn2

A. The Situation on the Kariba

The Kariba was a Bahamas-flagged container ship, built in 1982, with an overall length of 175.75 meters and a container carrying capacity of about 1200 TEU.*fn3 On December 13, 2002, Kariba voyaged from Antwerp, Belgium to Le Harve, France, eventually bound for West African ports with containers loaded at Antwerp and other European ports.

At the time of the collision, Captain Kamola was on the bridge and maintained watch on Kariba's radar, which had a fully functioning Automatic Radar Plotting Aid ("ARPA").*fn4 The Kariba was traveling approximately 16 knots over ground. This was Captain Kamola's first voyage as a Master in restricted visibility and he had been on watch for seventeen hours. (Tr. 76:16-18, 78:23-25.) Also on the bridge with Captain Kamola were Second Officer Maciej Szymanski and Able-Bodied Seaman Albert Ignacio.

At roughly 1:55 a.m., prior to reaching the Fairy South Buoy, a place where Kariba and Tricolor, as well as the other vessels in the TSS, executed a starboard turn to approximately 290§, Captain Kamola noticed a northbound vessel, the Clary, coming up on the port bow. (Kamola Decl. ¶39; Tr. 83:21 -- 84:01-09.) At approximately 2:00 a.m., the Kariba made its turn and steadied on a northwest bound course of approximately 290§. (Sofrelog Ex. 428-A.) Captain Kamola testified that he was concerned that this turn would place Kariba on a collision course with the Clary but at this point the Clary was still at least five miles away. Captain Kamola testified further that he expected the Clary to turn to starboard at some point to avoid collision. (Id.) The Tricolor followed the Kariba and executed a similar turn from about 253§ to 290§ and was at that point about .8 miles behind Kariba. (Id.) Captain Kamola testified that he knew the Tricolor would overtake Kariba on its starboard quarter. (Tr. 150:14-19.)

At about 2:04 a.m. Captain Kamola pointed out the radar echo of Clary to Second Officer Szymanski and told him to go out on the port wing to look for Clary's lights. Second Officer Szymanski took his binoculars and stayed out on the wing for about two minutes. When he returned he reported that he had not seen any lights.

At around 2:09 a.m. Captain Kamola decided that he had waited too long for Clary to turn and he would have to act to avoid collision. Although he had performed no trial maneuvers on his ARPA, Kamola ordered a course change of 10§ to starboard which registered on the Dunkerque radar at 2:09:45 a.m. (Tr. 97:12-24; Sofrelog Ex. 428-A.) This took the Kariba from approximately 290§ to 300§. Captain Kamola had Second Officer Szymanski go out on the starboard wing of the bridge to look for any lights. (Szymanski Decl. ¶ 22.) Mr. Szymanski stayed on the wing for only a minute or two before he reported to Captain Kamola that he had not seen any lights. (Id.) The Kariba steadied on a course of 300§ for only about 15 to 20 seconds before Captain Kamola ordered another turn this time of 20§ to starboard. Seconds later he sighted the lights of the Tricolor only a short distance away. He ordered the helmsman to put the rudder hard to starboard to avoid collision and yelled, "Oh my God, we will hit them." (Szymanski Decl. ¶ 24.) Unfortunately, the hard rudder turn was too late and the Kariba hit the Tricolor on its port beam. This all happened within the span of a few minutes.

The proof at trial showed that Captain Kamola misread his ARPA and believed that the Clary was closer than it was. This is apparent from Kamola's conflicting statements before trial and his short narrative written just after the collision. Directly following the collision he wrote that the Clary was only about one mile away when he began the starboard turn. (Ex. 135; Ex. 204; Ex. 205.) The Clary was in fact approximately 2.6 miles away at that point. (Torborg Decl. at 15; Boyce Simulation, Ex. 426.) This distance translates into a Time of Closest Point of Approach ("TCPA") of about eight minutes. Put another way, the Kariba would not have hit the Clary for another eight minutes when Captain Kamola made the turn to starboard. (Boyce Simulation, Ex. 426.) Even Captain Kamola thought that he still had six or seven minutes until collision if no action was taken. (Kamola Decl. ¶ 37; Tr. 96:05-07.) Neither Captain Kamola nor Second Officer Szymanski had read the instruction manual for the new 3 cm radar that had been installed that day on the Kariba. (Tr. 552:22-25; 554:11-13; 570:24 -- 571:01-07.) This failure, coupled with his conflicting stories, lead me to doubt Captain Kamola's credibility.

He went on to testify and deny that he tried to cross Tricolor's bow as Clary suggests, but at a previous deposition, he admitted that it was his intention to go ahead of the vessel on his starboard quarter. (Tr. 106:25 -- 108:11.) The Tricolor turned earlier than the Kariba to round the Fairy South buoy so the gap between the two ships was decreased. (Sofrelog Ex. 428-A.) Captain Kamola was clearly preoccupied with the position of the Clary and failed to appreciate the location of the Tricolor, ...


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