United States 9th Circuit Court of Appeals Reports
CROWLEY MARINE SERVICES v. MARITRANS, 447 F.3d 719 (9th Cir. 2006) CROWLEY MARINE SERVICES INC., a Delaware corporation, Plaintiff-Appellant, v. MARITRANS INC., a Delaware corporation; Maritrans Transportation Inc., a Delaware corporation; Maritrans Operating Page 720 Company LP, a Delaware Limited partnership; Maritrans General Partner Inc., a Delaware corporation, Defendants-Appellees. No. 04-35724. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 17, 2005. Decided May 8, 2006. Page 721
Vincent R. Larson, Daniel J. Gunter, and C. William West,
Riddell Williams P.S., Seattle, WA, for plaintiff-appellant
Crowley Marine Services, Inc.
Marc E. Warner, LeGros, Buchanan & Paul, Seattle, WA, for
defendant-appellee Maritrans Operating Company L.P.
Appeal from the United States District Court for the
Western District of Washington John C. Coughenour, Chief
Judge, Presiding. D.C. No. CV-02-02487-JCC.
Before RICHARD D. CUDAHY,[fn*] T.G. NELSON, and McKEOWN,
Circuit Judges.
[fn*] The Honorable Richard D. Cudahy, Senior United States
Circuit Judge for the Seventh Circuit, sitting by
designation.
McKEOWN, Circuit Judge.
This case calls on us to decide a matter of first
impression regarding the application of the International
Regulations for Preventing Collisions at Sea, Oct. 20,
1972, 28 U.S.T. 3459, T.I.A.S. 8587, adopted by statute at
33 U.S.C. § 1602, better known by their common
acronym as the COLREGS. Crowley Marine Services, Inc.
(“Crowley”) owned and operated a tug boat hired to
accompany an oil tanker operated by Maritrans Operating
Company L.P. (“Maritrans”) to an oil platform in the Puget
Sound. During the crossing the two vessels collided,
causing more than $2 million in damages.
In the inevitable suit that followed, each side identified
numerous violations of the COLREGS as the alleged cause of
the collision. The district court apportioned fault for the
accident as 75% to Crowley and 25% to Maritrans. The
district court found that the two vessels were operating in
concert according to agreed maneuvers, and therefore
determined that several substantive provisions of the
COLREGS at Page 722 issue were inapplicable. Specifically,
the court ruled that this situation presented “special
circumstances” that provide an exception to the COLREGS. We
hold that the plain language of the COLREGS precludes such
a broad exception, and remand for the district court to
reconsider the relative liability of the parties consistent
with this opinion.
BACKGROUND
Crowley provides vessel escort and assistance services in
Puget Sound. Federal law requires that any tanker
transiting Puget Sound east of navigational buoy “R” with
oil cargo must be escorted by two vessels. Maritrans hired
Crowley to provide escort services for the Allegiance, an
oil tanker under the command of Captain Joseph Semler, on
the evening of January 19, 2002. Crowley provided two tug
boats: the Sea King, under the command of Captain Donald
Nekeferoff, and the Chief, under the command of Captain
William Lowery.
At 8:50 p.m., the three captains held a radio conference
to plan the escort. According to the agreed-upon plan, the
Allegiance would travel east towards Buoy R at a speed of
about 15 knots. While the Allegiance was still two to three
miles away, the two tugs would depart from Buoy R at about
12.5 knots. The Allegiance would gradually overtake the two
tugs and pass between them, at which point the tugs would
take up position on either side of the tanker to complete
the escort maneuver, with the Chief tethered to the stern
and the Sea King on the tanker’s port shoulder.
For approximately the first forty-five minutes, the
maneuver went according to plan. Each of the three vessels
sailed with auto-pilot set to 58 degrees true, with the
Allegiance gradually overtaking the tug boats. During this
time both the Allegiance and the Chief made numerous
adjustments to their course to account for the fact that
the vessel’s auto-pilot function maintains a ship’s heading
(the direction in which the bow points) but does not
reflect changes due to wind or currents. The Sea King made
no comparable adjustments to its course.
By 9:35 p.m., with the Sea King still a short distance
ahead, the pilot and helmsman aboard the Allegiance
realized that the tug boat was also closing the lateral
distance between the vessels. Nonetheless, both men
testified that they had seen escort tugs running close
alongside tankers many times before, and saw no cause for
alarm. As the Sea King came closer and closer, Captain
Semler aboard the Allegiance decided that the vessels’
proximity exceeded his comfort zone. Although later
testifying that he did not see any risk of collision,
Captain Semler radioed Captain Nekeferoff aboard the Sea
King, inquiring, “Don, are you ok?” Captain Nekeferoff
responded affirmatively.
Shortly after the radio communication, the Allegiance and
the Sea King collided, with the tug boat pushed along by
the tanker’s bow and nearly capsizing as she rolled to the
tanker’s starboard side while heeling to port. About
halfway down the tanker’s side, the Sea King righted itself
as the tanker sailed past. The exact dynamics of the
collision were disputed. Crowley presented expert testimony
that the two vessels gradually converged until the
Allegiance struck the Sea King almost directly from behind.
Maritrans presented testimony that the Sea King veered
suddenly to starboard, into the path of the Allegiance.
At trial, each side attributed fault entirely to the
other, relying in large part on the COLREGS. The COLREGS
provide a “universal system of sea traffic rules”
applicable Page 723 to vessels in international waters.
William Tetley, International Maritime and Admiralty Law
237 (2002). Originally adopted by treaty under the auspices
of the International Maritime Organization in 1972, the
COLREGS have since been incorporated into the national law
of “every shipping nation in the world.” Id. These rules
apply to “all vessels upon the high seas and in all waters
connected therewith navigable by seagoing vessels.” Rule
1(a).
Crowley argued that Maritrans violated four provisions of
the COLREGS: Rule 5, which establishes a duty to maintain a
lookout; Rule 8, which establishes a duty to avoid
collision: Rule 13, which makes an overtaking vessel
responsible for avoiding collision; and Rule 34, which
requires vessels in sight of each other to give a signal
when changing course. Maritrans countered that Crowley
violated Rule 5 by failing to maintain a proper lookout.
Maritrans also maintained that Crowley reasonably should
have investigated the risks stemming from Captain
Nekeferoff’s history of alcoholism and health problems,
conditions that appeared to be related to a temporary loss
of situational awareness shortly before and during the
collision.
The district court credited Maritrans’ arguments, finding
that because the two vessels were operating according to
agreed maneuvers, Rules 8 and 13 of the COLREGS did not
apply. To reach this decision, the district court invoked
Rule 2, which provides that “[i]n construing and complying
with these Rules due regard shall be had to all dangers of
navigation and collision and to any special circumstances,
including the limitations of the vessels involved, which
may make a departure from these Rules necessary to avoid
immediate danger.” Rule 2(b).
Although noting that the plain language of the special
circumstances exception in Rule 2 did not provide such an
exception on its face, the district court found that “courts
have either expanded the scope of Rule 2(b)’s special
circumstances or have created a wholly separate category of
special circumstances involving vessels operating in
concert and pursuant to agreed maneuvers.” Thus freed from
the restrictions of Rule 8 and Rule 13, which would have
focused on Maritrans’ fault for failing to avoid the Sea
King, the district court found Maritrans to be only 25%
responsible for the accident.
ANALYSIS
This opinion addresses the proper scope of Rule 2(b)’s
special circumstances exception to the COLREGS. The
remaining issues presented by Crowley’s appeal are
addressed in a separate memorandum disposition.[fn1]
The district court observed that jurisprudence regarding
the scope of the special circumstances exception has done
“little to clarify murky waters.” This feeling is not
unwarranted and may actually understate the dearth of
applicable precedent. Relevant case law largely dates to
the early part of the last century, decades before the
COLREGS were adopted in the 1970s. The permissive decisions
in these cases have not been reconciled with the plain
language construction of the contemporary COLREGS as a
whole, thus leaving the murky waters alluded to by the
district court. Page 724
I. THE LAW GOVERNING COLLISIONS AT SEA
Three of the COLREGS’ collision avoidance rules are at
issue: two rules that govern a ship’s obligation to avoid
collision, Rules 8 and 13, and one rule that provides an
exception to the general rules, Rule 2. Crowley primarily
alleges that the Allegiance violated Rule 13, which
provides that “any vessel overtaking any other shall keep
out of the way of the vessel being overtaken.” Rule 13(a).
A ship is “overtaking” another when approaching “from a
direction more than 22.5 degrees” aft of perpendicular.
Rule 13(b). Further, “[w]hen a vessel is in any doubt as to
whether she is overtaking another, she shall assume that
this is the case and act accordingly.” Rule 13(c). The
Allegiance, which was approaching the Sea King from “at
least 22.5 degrees aft of perpendicular,” was overtaking
the tug. Nothing in the text of Rule 13 allows us to escape
the conclusion that as the overtaking vessel, the
Allegiance had the responsibility of avoiding the Sea King.
Crowley also argues that, by failing to slow down, the
Allegiance violated Rule 8(e), which provides that “[i]f
necessary to avoid collision or allow more time to assess
the situation, a vessel shall slacken her speed or take all
way off by stopping or reversing her means of propulsion.”
Rule 8(e). On its face, the text of Rule 8(e) supports
Crowley’s position. The pilot of the tanker testified that
the proximity of the vessels had exceeded his “comfort
zone,” and yet he took no action to avoid the collision
other than a call to the Sea King to ascertain if that
vessel was “OK.” Finding that the agreed maneuvers of the
three vessels precluded a “mechanical application” of the
rules, the district court diluted Rule 8 by allocating some
liability to Maritrans for failing to take more decisive
action once the proximity of the Sea King exceeded Captain
Semler’s comfort zone. But Rule 8(e) sets forth specific
actions to be taken in order to avoid collision, including
reducing speed or changing course. Cf. In re Nat’l Shipping
Co. of Saudi Arabia, 147 F.Supp.2d 425, 440 (E.D.Va. 2000)
(allocating fault 65% to party for, in part, failing to
reduce speed or change course in violation of Rule 8).
Given the overriding policy of the COLREGS and other
navigational rules, “it is not necessary for a collision to
be imminent or even probable before the obligation imposed
by them accrues. . . . There is a danger or risk of
collision whenever it is not clearly safe to go on.” Ocean
Marine Ltd. v. United States Lines Co., 300 F.2d 496, 499
(2d Cir. 1962) (applying earlier version of the inland
navigational rules) (internal marks omitted). On the facts
of this case, the Allegiance’s failure to comply with Rule
8(e)’s specific directives cannot be lightly overlooked.
If Rules 8 and 13 of the COLREGS apply to Maritrans’
actions, the apparent statutory violations would inform, in
great part, the allocation of liability between the
Allegiance and the Sea King. Under admiralty law, if a ship
is in violation of an applicable statutory duty at the time
of a collision, there is a presumption that the violation
contributed to the accident. The Pennsylvania, 19 Wall.
125, 86 U.S. 125, 136, 22 L.Ed. 148 (1873), overruled on
other grounds in United States v. Reliable Transfer Co.,
Inc., 421 U.S. 397, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251
(1975). This presumption may be rebutted by a showing that
the statutory violation “could not reasonably be held to
have been a proximate cause of the collision.” Churchill v.
The F/V Fjord, 892 F.2d 763, 770 (9th Cir. 1988) (quoting
Pac. Tow Boat Co. v. States Marine Corp., 276 F.2d 745, 749
(9th Cir. 1960)) (internal quotation marks omitted). Where
both parties to a collision share in the fault, “liability
for such damage Page 725 is to be allocated among the
parties proportionately to the comparative degree of their
fault.” Reliable Transfer, 421 U.S. at 411, 95 S.Ct. 1708.
Although there is no pre-determined formula for weighing
COLREGS violations against each other, the violations must
be accounted for under the Pennsylvania rule.
II. THE “SPECIAL CIRCUMSTANCES” EXCEPTION
Maritrans does not contest that its actions would violate
Rules 8 and 13. Rather, Maritrans tries to fit within the
special circumstances exception set forth in Rule 2 by
emphasizing that no court has applied the overtaking rule
to vessels that were operating in concert pursuant to
maneuvers conducted under an agreed-upon plan. The district
court, although criticizing Maritrans’ attempt to stretch
the special circumstances exception, ultimately adopted
this reasoning.
Rule 2(b) provides that “[i]n construing and complying
with these Rules due regard shall be had to all dangers of
navigation and collision and to any special circumstances,
including the limitations of the vessels involved, which
may make a departure from these Rules necessary to avoid
immediate danger.” The question is whether such special
circumstances are limited to those involving immediate
danger, or include circumstances that are “special” in a
more generic sense. The district court found, and Maritrans
argues on appeal, that “courts have either expanded the
scope of Rule 2(b)’s special circumstances or have created
a wholly separate category of special circumstances
involving vessels operating in concert and pursuant to
agreed maneuvers.” We disagree on both counts.
The plain language of the statute is our starting point.
See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct.
843, 136 L.Ed.2d 808 (1997) (“Our first step in
interpreting a statute is to determine whether the language
at issue has a plain and unambiguous meaning. . . .”). By
its terms, Rule 2 limits “special circumstance[s]” to those
circumstances “which may make departure . . . necessary to
avoid immediate danger.” In other words, vessels may
justify departure from the COLREGS in order to avoid
immediate danger, but not for more generic special
circumstances.[fn2] Cf. Dahlia Maritime Co., Ltd. v. M/S
Nordic Challenger, 1993 WL 268413, at *16 n. 2 (1993)
(applying Rule 2 where adherence to the COLREGS led to an
“impending unavoidable collision”); In re Otal Investments,
Ltd., 2006 WL 14512, at *7 (S.D.N.Y. 2006) (holding that
Rule 2 “applies to facts `where there is an immediate
danger, perfectly clear; and the departure from the rules
must be no more than is necessary'”) (quoting Yang-Tsze
Ins. Ass’n v. Furness, Withy & Co., 215 F. 859, 861-62 (2d
Cir. 1914)). This interpretation is echoed in one of the
leading admiralty law treatises: “Courts, had they been so
minded, could have sailed a whole armada of exceptions
through the opening made by this Rule. Actually, it has
been very narrowly construed, and will not excuse a
violation of the plain mandate of the more specific Rules.
. . .” Grant Gilmore & Charles L. Black, Jr., The Law of
Admiralty Page 726 508 (2d ed. 1975). Adhering to the
plain meaning of the statute is particularly appropriate in
this context. The COLREGS are strictly construed, to the
extent that “[t]he general lawyer . . . must accustom
himself to a far different atmosphere in dealing with these
Rules, for they are strictly and literally construed, and
compliance is insisted upon.” Gilmore & Black, The Law of
Admiralty 489.[fn3] The plain text of the COLREGS allows
only one avenue to steer clear of their obligations: the
“special circumstances” exception enshrined in Rule 2,[fn4]
which is limited to situations involving immediate danger.
In reaching a contrary conclusion, the district court
relied upon a series of cases, cited by Maritrans, holding
that vessels operating in concert participate in a “special
circumstance” within the meaning of Rule 2. These cases,
which pre-date the current COLREGS by many decades, either
reflect unique circumstances or (as noted by the district
court) apply a relatively casual version of the special
circumstances exception. Because these cases do not
interpret Rule 2 and, in fact, conflict with the plain
meaning of the current COLREGS, we decline to adopt their
analysis.
In The Joseph Vaccaro, 180 F. 272 (D.C.La., 1910), the
court declined to apply “hard and fast rules as to
overtaking or crossing” because it was difficult to
ascertain which vessel was the overtaking or crossing
vessel; indeed, in the facts submitted to the court, the
two ships at issue seemed to alternate roles. Id. at 275.
Although the collision in that case involved a steamship
and a tug, the agreed maneuver (delivering a pilot to the
steamship) had unmistakably ended at the time of the
collision; both ships were continuing on their way with no
prior agreement or concurrent communication regarding their
operations in the close quarters of the South Pass of the
Mississippi River. Id. at 273-74.
In The Paulsboro, 11 F.2d 625 (S.D.N.Y. 1925), the court
refused to apply the overtaking rule where a tugboat and
tank steamer collided while the tug was guiding the larger
vessel into port. Id. at 626-27 (“[T]he two vessels cannot,
in my opinion, be regarded as navigating independently, and
the situation is one of special circumstances rather than
that of an overtaking vessel.”). Noting the dearth of
caselaw on point, the court relied on an earlier Second
Circuit decision, The Monterey, 161 F. 95, 97 (2d Cir.
1908), that had reached a similar conclusion in refusing to
apply presumptions of liability for violations of the
“steering and sailing rules” (precursors of Part B of the
current COLREGS, which are entitled “Steering and Sailing
Rules”) when the vessels were engaged in an agreed
maneuver. Page 727
To the extent that these cases hold that the cooperation
between a tug boat and her charge is a “special
circumstance,” either within or without Rule 2(b), that
excuses neglect of the COLREGS, we decline to embrace their
teaching. Scant evidence in cases predating the
contemporary COLREGS by several decades cannot overcome
both the plain language of Rule 2, which provides an
exception to the other rules only when “necessary to avoid
immediate danger,” and the overriding mandate to apply the
COLREGS strictly.
This result does not lead to awkward consequences, as
Maritrans would have us believe. The COLREGS prescribe a
set of “rules of the road” for international navigable
waters, ensuring that all vessels understand the same rules
of engagement. There is no reason that these rules should
not also apply to vessels under full sail in the Puget
Sound, even those vessels operating in concert. As written,
the COLREGS reflect numerous policy judgments that are not
vitiated by the fact of agreed cooperation between two
vessels.
An examination of the facts of this case serve to
illuminate this point. Maritrans argues that the Allegiance
was supposed to overtake the tugs, and thus should not be
held liable under the overtaking rule. But the COLREGS do
not prohibit one vessel from overtaking another, they
simply state that the overtaking vessel shall be
responsible for avoiding the other. The policy behind this
rule reflects realities of navigation, and is not changed
by the fact that the overtaken vessel has agreed to be
overtaken. For example, in commenting on an identical
overtaking rule in the Inland Navigational Rules Act of
1980, a United States Senate report recognized “that the
overtaking vessel should have less problem in keeping clear
and avoiding collision than the vessel being overtaken,
even if the overtaken vessel has agreed to allow the
maneuver.” S.Rep. No. 96-979, at 12 (1980) as reprinted in
1980 U.S.C.C.A.N. 7068, 7079 (1980).[fn5]
Another example is perhaps even clearer-the district court
diluted the application of Rule 8, which requires vessels to
take action to prevent collision. A vessel perceiving such
a risk of collision should not be released from the
COLREG’s specific instructions to take precautionary
measures simply because it is engaged in a predetermined
maneuver.[fn6] Cf. The Monterey, 161 F. at 97 (applying an
exception for special circumstances, but noting that “[t]he
vessels are co-operating in an agreed maneuver, and each is
bound to act prudently toward the agreed end”). Maritrans’
theory is akin to standing on principle and insisting on
the right of way even in the face of an imminent collision.
Our analysis of the applicability of the COLREGS does not,
of course, determine the ultimate allocation of liability
in this case. Despite construction of the COLREGS,
including the special circumstances exception, in accord
with their plain meaning, the assignment of liability is
not absolute. We leave to the district court to factor and
weigh relative liability in a fault allocation analysis.
See, e.g., Complaint of Page 728 G & G Shipping Co., 767
F.Supp. at 412 (apportioning liability between the parties
80% and 20% upon finding several violations of the COLREGS
on both sides); Hal Antillen N.V. v. Mount Ymitos MS, 147
F.3d 447, 451-52 (5th Cir. 1998) (upholding part of a
district court decision apportioning minimal liability on
the basis of a violation of Rule 5 because the violation
had not been a proximate cause of the collision).
The flexibility and adaptability of the apportionment
concept explain why we are unswayed by the collection of
policy arguments offered by Maritrans.[fn7] The
blameworthiness of each party’s conduct would ultimately
depend not only on the rules that each party violated but
on whether those violations actually caused the collision,
considering all the facts of the case. See, e.g., Pennzoil
Producing Co. v. Offshore Express, Inc., 943 F.2d 1465,
1472 (5th Cir. 1991) (recognizing that under The
Pennsylvania and Reliable Transfer, an assessment of
comparative fault must be based on all the facts of the
case, not on a simple count of how many rules of navigation
each vessel has violated). Therefore, the district court
should consider the pre-arranged escort plan, along with
all the other facts, when it apportions fault. It may well
be that the Allegiance’s violation of Rule 8(e) contributed
relatively little to the eventual collision in relation to
the Sea King’s failure to adjust course and Captain
Nekeferoff’s apparent loss of situational awareness.
However, neither is there any basis for concluding (on the
other extreme) that such considerations bypass the COLREGS
entirely.
The judgment of the district court is REVERSED, and this
case is REMANDED for further proceedings consistent with
this opinion.
[fn1] Crowley presented two other contested issues ?
Crowley’s vicarious liability for Captain Nekeferoff’s
medical and alcohol problems and the admission of expert
testimony regarding hydrodynamic forces that would have
affected the collision. These matters are addressed in a
memorandum disposition filed simultaneously with this
opinion.
[fn2] Our reading of the text of Rule 2 finds support in
decisions applying Article 27 of the predecessor to the
Inland Water Rules, the text of which is exactly the same
as Rule 2. In Zim Israel Navigation Co., Ltd. v. S.S.
American Press, 222 F.Supp. 947 (S.D.N.Y. 1963), the court
noted that under Article 27, “[d]eparture from the
statutory duty imposed upon the vessels is justified only
when necessary to avoid immediate danger, and the burden of
proof is upon the vessel which alleges justification for
the departure.” Id. at 954 (internal citations omitted).
[fn3] The long tradition of applying the rules strictly
reflects their origins in earlier practice. See Belden v.
Chase, 150 U.S. 674, 698-99, 14 S.Ct. 264, 37 L.Ed. 1218
(1893) (describing the rules for preventing collisions, as
they existed on the eve of the twentieth century, as “not
mere prudential regulations, but binding enactments,
obligatory from the time that the necessity for precaution
begins” and insisting that they be “rigorously enforced”).
[fn4] Courts have continued to apply an analogous in
extremis doctrine that predates the COLREGS, and excuses
violations of the rules where one vessel is placed in
“extreme danger” by the faulty maneuvering of another
vessel. Complaint of G & G Shipping Co., Ltd. of Anguilla
v. The M/V “Nedlloyd Van Noort”, 767 F.Supp. 398, 407-08
(D.P.R. 1991) (quoting The Blue Jacket, 144 U.S. 371, 392,
12 S.Ct. 711, 36 L.Ed. 469 (1892)). While the relationship
between the in extremis doctrine and the special
circumstances exception in Rule 2 has not been resolved
with utmost clarity, both rules allow a party to a
collision to escape liability for violations of the
applicable rules only when necessary to avoid an immediate
danger.
[fn5] Although distinct from the COLREGS, the legislative
history underlying the adoption of the Inland Navigational
Rules is instructive in this case. In adopting the Inland
Navigational Rules, Congress noted that “the bill attempts
to make them as consistent as possible with the [COLREGS].”
S.Rep. No. 96-979, at 1 (1980), as reprinted in 1980
U.S.C.C.A.N. 7068, 7068 (1980).
[fn6] The maneuver situation is different than the
judicially-recognized in extremis exception. Maritrans does
not argue that the Allegiance’s violations of the COLREGS
were taken in response to an immediate danger created by
the Sea King.
[fn7] The Supreme Court explained that it established
comparative fault liability in admiralty in order to bring
“flexible and fair remedies in the law maritime.” Reliable
Transfer Co., 421 U.S. at 409, 95 S.Ct. 1708. It is this
flexibility that allows a “`just and equitable’ allocation
of damages” proportional to the comparative degree of fault
of each party. Id. at 411, 95 S.Ct. 1708.