United States District Court, S.D. New York
In the Matter of the Complaint of ENERGETIC TANK, INC., as Owner of the M/V ALNIC MC, for Exoneration from or Limitation of Liability
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE.
Tank ("Petitioner"), the owner of the M/V ALNIC,
petitioned pursuant to 46 U.S.C. §§ 30501 et. seq.
for exoneration or to limit its liability. It now moves for a
ruling that Singapore law applies to all substantive matters
of liability and damages. Dkt. 1, at 5; Dkt. 211, at 10.
Claimants contend that United States law
applies. Dkt. 217, at 1. The Petitioner's
motion for application of foreign law is GRANTED; the Court
finds that Singapore law is the correct choice of law
applicable as to all substantives matters of liability and
the availability and calculation of damages in this case.
U.S.S. JOHN S. MCCAIN, a United States Navy guided-missile
destroyer, collided with the ALNIC, a Liberian-flagged
merchant vessel, in the Singapore Strait Traffic Separation
Scheme at 0524 on August 21, 2017. Dkt. 210, Ex. A, at 47; Dkt.
211, at 1-2. The MCCAIN was bound for the Changi Naval Base,
Singapore, after departing on May 26, 2017 from its home port
of Yokosuka, Japan, where it is stationed. Dkt. 210, Ex. A,
at 45. The ALNIC also was bound for Singapore. Dkt. 211, at
1. At 0500 on August 21, the MCCAIN sounded reveille to wake
the crew before entering the port in Singapore. Dkt. 210, Ex.
A, at 63. The Sea and Anchor detail, which is used in the
approach to port, was to be stationed at 0600. The MCCAIN
entered the Middle Channel of the Singapore Strait at 0520.
It was still night and sunrise would not take place until
0658. Id. at 45. Approximately four minutes after
entering the Middle Channel, at 0524, the MCCAIN and the
ALNIC collided at a site approximately 24 nautical miles from
the Singapore mainland. Id. at 47; Dkt. 217, at 3.
sailors aboard the MCCAIN died in the collision, and 48 more
sailors were injured. Dkt. 210, Ex. A, at 43, 57. There were
no fatalities and no injuries on the ALNIC. Id. at
43. Immediately following the collision, at 0530, the MCCAIN
"requested tugboats and pilots from Singapore Harbor to
assist in getting the ship to Changi Naval Base."
Id. at 49. The MCCAIN entered Singapore Harbor
around noon on August 21. Id. at 58.
and rescue efforts began immediately after the collision.
Id. at 57. Responders from the Republic of Singapore
Navy and Coast Guard were at the site of the collision within
two and a half hours, and soon half a dozen vessels each from
Singapore and Malaysia had arrived at the collision site.
Id. Several severely injured sailors from the MCCAIN
were taken to Singapore General Hospital. Id. The
Malaysian and Singaporean navies swept within a range of ten
nautical miles of the MCCAIN's path for missing sailors.
Id. The search and rescue efforts continued for more
than 80 hours, covered in excess of 2, 100 square miles, and
included support from the United States, Singapore, Malaysia,
Indonesia, and Australia. Id. at 58. Singapore's
Transport Safety Investigation Bureau ("TSIB")
conducted an inquiry into the collision and published a
report on March 8, 2018 stating that it had occurred "in
the westbound lane of the Singapore Strait, in Singapore
territorial waters." Dkt. 216, Ex. B, at 4. The U.S.
participated in the investigation, at least to the extent of
submitting documents. Dkt. 216, Ex. B, at 16 n. 22, 20 n. 37,
22 n. 39, 23 n. 41, 25 fig. 12, 32 n. 56, 33 n. 57.
Parties submitted extensive briefing regarding the correct
choice of law and the Court heard oral argument on November
14, 2019. Tr., Dkt. 236, at 20:25-38:5.
Issue of Foreign Law
party who intends to raise an issue about a foreign
country's law must give notice by a pleading or other
writing." Fed.R.Civ.P. 44.1. "While the Rule
requires that the parties give notice of the intent to raise
foreign law, the Advisory Committee's Notes make clear
that Congress deliberately declined to provide 'any
definite limit on the party's time for giving notice of
an issue of foreign law.'" Rationis Enters. Inc. of
Panama v, Hyundai Mipo Dockyard Co., 426 F.3d 580,
585 (2d Cir. 2005) (quoting Fed.R.Civ.P. 44.1 advisory
committee's note, 39 F.R.D. 69, 118 (1966)). "[A]
litigant must provide the opposing party with reasonable
notice that an argument will be raised, but the litigant need
not flesh out its full argument at the Rule 44.1 stage."
Id. at 586.
the proper determination of foreign law can be a complicated
task." Id. at 586. "Ultimately, the
responsibility for correctly identifying and applying foreign
law rests with the court." Id.
of Collisions in Foreign Waters
[a] collision occurs in foreign territorial waters, liability
and damages are as a general rule determined according to the
law of that country." Thomas J. Schoenbaum, Admiralty
& Maritime Law § 14:10 (6th ed. 2018). "Liability
for tort caused by collision in the territorial waters of a
foreign country is governed by the laws of that
country." The Mandu,102 F.2d 459, 463 (2d Cir.
1939). "How damages in a both-to-blame collision in
foreign territorial waters should be apportioned is governed
by the lex loci." Lady Nelson, Ltd. v. Creole
Petroleum Corp., 286 F.2d 684, 686 (2d Cir. 1961)
(Friendly, J.); MAN Ferrostaal, ...