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In re Complaint of Energetic Tank, Inc.

United States District Court, S.D. New York

January 10, 2020

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


         Energetic 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.[1] 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.


         The 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.[2] 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.

         Ten 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.

         Search 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.

         The 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.


         I. STANDARD

         A. Issue of Foreign Law

         "A 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.

         "Frequently, 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.

         B. Law of Collisions in Foreign Waters

         "If [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).[3] "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, ...

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