Marine Transport Lines, Inc. v. M/V Tako Invader

United States Court of Appeals,

Fifth Circuit.

No. 94-30247

Summary Calendar.

MARINE TRANSPORT LINES, INC., Plaintiff-Appellee,

v.

TAKO INVADER MV, her engines, tackle, etc., in rem, et al.,
Defendants,

Tako Towing, Inc. and Lumar Marine, Inc., in personam,
Defendants-Appellants.

Nov. 14, 1994.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Marine Transport Lines, Inc. ("Marine Transport") brought an

admiralty action against M/V Tako Invader, Lumar Marine, Inc., and

Tako Towing, Inc. ("Tako Towing") to recover damages its barge

sustained in a collision with the Tako Invader on the Mississippi

River. Tako Towing appeals the district court's calculation of

damages and apportionment of fault. Finding only a mathematical

error in the court's calculation of damages, and an insufficient

legal basis for its apportionment of fault, we affirm in part and

remand in part.

I

In the early hours of a February morning, two barges in tow on

the Mississippi River collided just below the Luling Bridge near

mile 121.5. Marine Transport's tug, M/V Marine Guardian, with its

1
barge the MBC-2 in tow, was on its way up the river to Baton Rouge,

Louisiana, where she was to load cargo for a journey to Mexico.

She had been following a second tow, M/V Creole Rivers, for some

time, unable to pass her because of downbound traffic. Finally, an

opportunity to pass the Creole Rivers on her starboard side

presented itself, and the Marine Guardian proceeded to overtake the

Creole Rivers. This maneuver placed the Marine Guardian between

the Creole Rivers and the east, or left-descending, bank of the

river.

As the Marine Guardian slowly gained alongside the Creole

Rivers, her mate, Captain Jack Sears, heard the Creole Rivers reach

a port-to-port passing agreement with a downbound vessel, M/V Tako

Invader. He saw the Tako Invader's lights above the Luling Bridge,

on the east side of the river,1 but he soon lost them in the

bridge's supports. The movement of the lights suggested to Captain

Sears that the Tako Invader was slipping toward the west bank.

Captain Sears did not communicate with the Tako Invader. Instead,

he assumed that because he was on the eastern side of the river,

safely to starboard of the Creole Rivers, he too could pass the

Tako Invader port-to-port.2

1
Captain Schipplein, the mate of the Tako Invader, confirmed
this location in his deposition when he testified that when he
saw the Luling Bridge range lights they were open, and the
downriver light was positioned to the left of the upriver one.
Although Captain Schipplein changed this testimony at trial, the
court found his trial testimony incredible.
2
Captain Schipplein testified that from the Tako Invader's
vantage point, he saw a green barge light downriver below the
Luling Bridge and assumed it was a loose barge positioned
sideways in the river.

2
 Captain Sears did, however, send a deckhand named Rowe

top-side to observe the Tako Invader. Rowe rushed back to the

wheelhouse, grabbed some binoculars, and returned top-side. When

he ran back down to the wheelhouse again, he informed Captain

Sears, "You'd better do something, [the Tako Invader's] right ahead

of you." Captain Sears then heard an excited conversation on his

radio between the Tako Invader and the Creole Rivers, and about a

minute later, according to Captain Sears, "I knocked the shit out

of him or he knocked the shit out of me, one way or another."

Marine Towing sued Tako Towing in admiralty, alleging that the

Tako Invader's negligent operation and failure to adhere to the

applicable navigational rules caused the collision and resulting

damage to Marine Towing's barge. The district court found the Tako

Invader in violation of Rules 7, 8, 9, and 14 of the Inland

Navigational Rules ("the Rules"), and the Marine Guardian in

violation of Rules 7, 8, 14, and 34. Based on this finding, the

court apportioned 757 of the fault to the Tako Invader and 257 to

the Marine Guardian. Consequently, the court awarded Marine

Transport detention damages in the amount of $61,072.50 and repair

costs in the amount of $80,374.77. Tako Towing now appeals,

arguing that the district court's findings were clearly erroneous

and that the court misinterpreted Rules 9 and 14.

II

A

Tako Towing argues that the district court incorrectly

calculated Marine Transport's damages. Determinations of the trial

3
court concerning the amount of damages are factual findings, and we

will set them aside only if clearly erroneous. See Todd Shipyards

Corp. v. Turbine Serv., Inc., 674 F.2d 401, 405 (5th Cir.), cert.

denied, 459 U.S. 1036, 103 S.Ct. 448, 74 L.Ed.2d 603 (1982). "A

finding is "clearly erroneous' when although there is evidence to

support it, the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed." United States v. United States Gypsum Co., 333 U.S.

364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Specifically, Tako Towing contests the district court's

calculation of detention damages, the profits that Marine Transport

lost while its vessel was detained for collision repairs. "A ship

owner is entitled to damages for the loss of use of its vessel in

addition to the cost of repairs of the vessel." Kim Crest, S.A. v.

M.V. Sverdlovsk, 753 F.Supp. 642, 649 (S.D.Tex.1990) (citing

Continental Oil Co. v. S.S. Electra, 431 F.2d 391 (5th Cir.1970),

cert. denied, 401 U.S. 937, 91 S.Ct. 925, 27 L.Ed.2d 216 (1971)).

"The damage that this loss represents is the ship's charter rate,

less the variable or incremental expenses that would have been

required of the owner to perform the charters, discounted by the

probable utilization rate." Kim Crest, 753 F.Supp. at 649. Loss

of detention damages "need not be proven with an exact degree of

specificity." Mitsui O.S.K. Lines, K.K. v. Horton and Horton,

Inc., 480 F.2d 1104, 1106 (5th Cir.1973). A district court's lost

profits methodology must permit it to arrive at a damages amount

"with "reasonable certainty.' No more is required." Orduna S.A.

4
v. Zen-Noh Grain Corp., 913 F.2d 1149, 1155 (5th Cir.1990) (quoting

The Conqueror, 166 U.S. 110, 125, 17 S.Ct. 510, 516, 41 L.Ed. 937

(1897)). The evidence must be sufficient to allow the district

court to "find with reasonable certainty that the damages claimed

were actually or may be reasonably inferred to have been incurred

as a result of the collision." Id.

Tako Towing first argues that the district court erroneously

failed to reduce Marine Transport's detention damages by an

"historical utilization rate," a rate that reflects the portion of

a typical time period that the vessel does not earn revenue. The

district court applied the traditional "three voyage rule" to

calculate detention damages. According to this rule, "the court

determines the charter hire rate for the voyage immediately

preceding the collision, the charter hire rate during the voyage of

the casualty, and the charter hire rate of the first voyage

succeeding the casualty and averages them." Kim Crest, 753 F.Supp.

at 650; see also Delta S.S. Lines, Inc. v. Avondale Shipyards,

Inc., 747 F.2d 995, 1001 (5th Cir.1984) (noting the "time honored

rule in maritime cases that a proper method of determining lost

detention profits is to seek a fair average based on a number of

voyages before and after"). The court calculated, based on

historical data for the three voyages closest in time to the

collision, that the Marine Guardian and MBC 2 earned an average

revenue of $105,000 per voyage. The Court then deducted $25,255 to

account for the estimated average variable costs associated with

those three voyages.

5
 Tako Towing cites our decision in Todd Shipyards v. Turbine

Serv., Inc., 674 F.2d 401 (5th Cir.), cert. denied, 459 U.S. 1036,

103 S.Ct. 448, 74 L.Ed.2d 603 (1982), to support its argument that

the district court's failure to apply a utilization rate was clear

error. That case, however, involved an entirely different

methodology. There, the damaged vessel was detained 215 days,

during which time the vessel could have made several voyages. Id.

at 414. The district court calculated a daily loss of profit and

then multiplied this cost by the number of days the vessel was

detained. Since the vessel in that case historically had been

operational 77.27 of the time, this necessarily required a

reduction to account for the amount of time the vessel would not

have earned any profit. Id.

In contrast, the Marine Guardian essentially missed one

voyage. At the time of the collision, she was on her way to Baton

Rouge, where she was to load cargo at an Exxon Chemical facility

for a voyage to Mexico. Presumably because the voyage was expected

to take between 12 and 15 days, and the Marine Guardian was

detained for collision repairs for 14.3 days, the district court

did not discount Marine Transport's detention damages to reflect a

probable rate of utilization. In effect, the district court

assumed a utilization rate of 1007 for those 14.3 days.3 Because

3
Tako Towing also argues that because the Marine Guardian
was eventually able to make the voyage to Mexico for Exxon, "the
voyage was never lost, but rather, was only delayed." This
argument is beside the point. The Marine Guardian missed
fourteen days of earning revenue. Her ability to make a delayed
voyage simply means she made one instead of possibly two voyages
in that same amount of time. Furthermore, a plaintiff seeking

6
the expected length of the Marine Guardian's impending voyage

approximately equalled the number of days she was detained for

collision repairs, a probable utilization rate of 1007 permitted

the district court to arrive at Marine Transport's detention

damages with reasonable certainty. See Inland Oil and Transp. Co.

v. Ark-White Towing, 696 F.2d 321, 326-27 (5th Cir.1983) (holding

that loss of use was not proved with reasonable certainty where

there was "no evidence that the ... barges would have been used

during this time span.").

Tako Towing also claims the district court erroneously relied

on Marine Transport's estimates of its variable costs. Variable

costs are deducted from the charter rate to arrive at lost profits.

See Kim Crest, 753 F.Supp. at 649. Jeff Miller, Marine Transport's

charter manager, testified at trial regarding the variable costs

for the three voyages that the court used to calculate the Marine

Guardian's charter rate. He explained that he estimated the

variable costs based on historical costs of similar voyages. With

respect to fuel costs, for example, Miller testified that he input

average speed and fuel consumption into a computer program that

calculates the fuel a vessel would burn on a voyage of a given

distance and speed. Actual figures were unavailable because Marine

Transport accounts for its costs on a monthly rather than

per-voyage basis.

detention damages need not prove a specific lost opportunity.
See In re M/V Nicole Trahan, 10 F.3d 1190, 1195 (5th Cir.1994)
(holding proof of active market for vessel sufficient to entitle
plaintiff to detention damages).

7
 Tako Towing concedes that a damages award may be based on

estimates, but argues that "it is necessary that the assumptions

rest on adequate data." Malley-Duff & Assocs. v. Crown Life Ins.

Co., 734 F.2d 133, 148 (3rd Cir.), cert. denied, 469 U.S. 1072, 105

S.Ct. 564, 83 L.Ed.2d 505 (1984). Miller's testimony shows,

however, that his estimates were prepared based on historical data

for similar voyages. Although actual invoices for the three

voyages would have been preferable, Marine Transport's estimates

were not so speculative that the district court could not find with

"reasonable certainty" that the damages claimed may be "reasonably

inferred to have been incurred as a result of the collision."

Mitsui O.S.K. Lines, 480 F.2d at 1106.

Finally, Tako Towing points out an error in the district

court's arithmetic. The court found detention damages to be

$105,000 in lost revenues minus $25,255 for variable costs saved.

Seventy-five percent of this amount ($79,745) is $59,808.75, but

the figure included in the court's final judgment is $61,072.50.

Accordingly, if the district court's apportionment of fault does

not change on remand, see infra part II.B, we order the judgment

modified in this respect.

B

Tako Towing also appeals the district court's apportionment

of fault, primarily on the ground that the court misinterpreted the

Inland Navigational Rules. We review the trial court's factual

finding of relative fault in a collision under the clearly

erroneous standard. Inland Oil & Transp. Co. v. Ark-White Towing,

8
696 F.2d 321, 326 (5th Cir.1983). However, when factual findings

in an admiralty case are "essentially based on an incorrect legal

principle, Rule 52(a) clearly erroneous does not apply and we

disregard any such possible findings." Delta S.S. Lines v.

Avondale Shipyards, 747 F.2d 995, 1000 (5th Cir.1984).

The district court found that the Tako Invader violated Rules

7, 8, 9, and 14, and that the Marine Guardian violated Rules 7, 8,

14, and 34. When both parties to a collision have violated

statutory regulations designed to prevent collisions, the trier of

fact apportions fault between the vessels unless either vessel

proves that its fault was not a substantial contributing cause of

the collision. See Otto Candies, Inc. v. M/V Madeline D, 721 F.2d

1034, 1036 (5th Cir.1983); see also United States v. Reliable

Transfer Co., Inc., 421 U.S. 397, 411, 95 S.Ct. 1708, 1715-16, 44

L.Ed.2d 251 (1975) ("We hold that when two or more parties have

contributed by their fault to cause property damage in a maritime

collision or stranding, liability for such damage is to be

allocated among the parties proportionately to the comparative

degree of their fault....").4

The court's bench ruling points to two areas of fault

underlying its apportionment of 757 fault to the Tako Invader.

First, the court found that Captain Schipplein failed to exercise

sufficient caution after noticing what he concluded was a sideways

4
Tako Towing does not contest the court's finding that both
vessels' violations contributed to the collision (requiring an
apportionment of liability). Tako Towing contests only the 75-25
ratio of the court's allocation of fault.

9
barge downriver. Second, it held that "because the Tako Invader

was on the eastern side of the river, contrary to the agreed to

port-to-port passage as set out in Rules 9 and 14 of the Inland

River Navigational Rules, she was in violation of the statute."

Tako Towing challenges the second of these conclusions on two

grounds.

First, Tako Towing argues that the court erroneously applied

Rule 9, the "Narrow Channel Rule,"5 because the channel in which

the collision occurred is 1200 feet wide and therefore not a

"narrow channel."6 Neither Rule 9 nor the Inland Navigational

Rules Act defines "narrow channel." Courts interpreting the

predecessor "Narrow Channel Rule," Article 25 of the Inland Rules,

33 U.S.C. § 210 (1976) (repealed), agreed that the determination of

what is a "narrow channel" is a mixed question of law and fact.

Canal Barge Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1362

(5th Cir.1985). Lower courts have generally held that bodies of

water up to 1,000 feet wide are narrow channels, while bodies of

water 1,200 feet and over are not. See Maritrans Operating

Partners L.P. v. M/T Faith I, 800 F.Supp. 133, 140 (D.N.J.1992)

(citing cases). However, we have explained that "[t]he application

5
Rule 9 generally requires vessels to proceed through
"narrow channels" staying to their starboard side of the channel.
See infra at 739-40.
6
The "A Span" of the Luling Bridge, between the two main
pilings, is 1200 feet wide. The actual width of the Mississippi
River at that location is significantly greater. Although the
court did not expressly find that the channel near the Luling
Bridge is a narrow channel, its finding is implicit in its
determination that the Tako Invader violated Rule 9.

10
of the Narrow Channel Rule is not based on the physical dimensions

of the body of water alone." Weathers Towing, Inc. v. M/V Herman

Pott, 570 F.2d 1294, 1295 (5th Cir.1978) (interpreting Inland

Article 25, 33 U.S.C. § 210 (1976) (repealed)). In Weathers

Towing, we upheld the district court's application of Rule 9 to

Scudder Bend, a 1,200-foot wide section of the Mississippi river,

based on the presence of sandbars, the length and width of the

vessels, and the fact that the channel curved 180 degrees at

Scudder Bend. Id. at 1295-96. Because the physical dimensions of

the Luling Bridge channel place it outside the general range

developed by other lower courts, and because the district court

failed to make the necessary findings, like those in Weathers

Towing,7 we remand for explicit findings on the question of whether

the Luling Bridge section of the Mississippi is a "narrow channel"

within the meaning of Rule 9.

Assuming Rule 9 applies, Tako Towing also argues that "[n]o

rule, and particularly not Rules 9 or 14 ..., requires that a

vessel stay on one side or the other of a non-existent imaginary

line down the center of the river." Rule 9(a) provides:

(i) A vessel proceeding along the course of a narrow channel
or fairway shall keep as near to the outer limit of the
channel or fairway which lies on her starboard side as is safe
and practicable.

(ii) Notwithstanding paragraph (a)(i) and Rule 14(a), a
power-driven vessel operating in narrow channels or fairways

7
The court below appears to have assumed, without deciding,
that Rule 9 applied.

11
 on the Great Lakes, Western Rivers,[8] or waters specified by
the Secretary, and proceeding downbound with a following
current shall have the right-of-way over an upbound vessel,
shall propose the manner and place of passage, and shall
initiate the maneuvering signals prescribed by Rule 34(a)(i),
as appropriate. The vessel proceeding upbound against the
current shall hold as necessary to permit safe passing.

33 U.S.C. § 2009(a) (1988). Rule 14 provides:

(a) Unless otherwise agreed, when two power-driven vessels are
meeting on reciprocal or nearly reciprocal courses so as to
involve risk of collision each shall alter her course to
starboard so that each shall pass on the port side of the
other.

....

(d) Notwithstanding paragraph (a) of this Rule, a power-driven
vessel operating on the Great Lakes, Western Rivers, or waters
specified by the Secretary, and proceeding downbound with a
following current shall have the right-of-way over an upbound
vessel, shall propose the manner of passage, and shall
initiate the maneuvering signals prescribed by Rule 34(a)(i)
as appropriate.

33 U.S.C. § 2014 (1988). Relying on Rule 9(a)(ii) and Rule

14(a)(ii), Tako Towing argues that as the downbound vessel, the

Tako Invader had the right-of-way and the Marine Guardian was

required to stay clear. Marine Transport, on the other hand,

interprets the rules as requiring vessels to proceed up and down

the Mississippi on their starboard side of the river. The court's

finding that the Tako Invader was positioned on the east side of

the river is irrelevant under Tako Towing's interpretation of the

rules and conclusive under Marine Transport's. We conclude that

neither interpretation fully captures the meaning of Rules 9 and

14.

8
The statute defines the term "Western Rivers" to include
the Mississippi River. See 33 U.S.C. § 2003(l).

12
 Rule 9 explicitly directs vessels to keep as near to their

starboard side as "is safe and practicable." 33 U.S.C. §

2009(a)(i). The court's finding that the Tako Invader was

proceeding down the East side of the channel (the side to the Tako

Invader's port) placed the Tako Invader in clear violation of Rule

9(a)(i). The question then becomes whether the "right-of-way"

provision of Rule 9(a)(ii) allowed the downbound Tako Invader to

take the course she did. This question requires us to reconcile

Rule 9's potentially contradictory subsections (a)(i) and (a)(ii):

one requires vessels to stay to their starboard side of the river,

and the other gives downbound vessels the right-of-way. The

parties have cited no cases, and we have found none, reconciling

this conflict.9

We do not read Rule 9(a)(ii)'s right-of-way provision to allow

downbound vessels absolute freedom to proceed down the Mississippi

River however they choose. Instead, it gives downbound vessels the

authority to deviate from the "keep to starboard" requirement of

Rule 9(a)(i) provided they comply with the procedures enumerated in

Rule 9(a)(ii). In other words, the downbound vessel's right-of-way

under Rule 9(a)(ii) is conditional—it depends on the downbound

vessel's having proposed a manner and place of passage and

9
Marine Transport cites two cases in support of its
interpretation of Rules 9 and 14: Hess Tankship Co. v. S.S. M.L.
Gosney, 230 F.Supp. 1 (E.D.Va.1963), and Koch-Ellis Marine
Contractors, Inc. v. The Capetan Dimitris, 176 F.Supp. 645
(E.D.La.1959), aff'd, 302 F.2d 462 (5th Cir.1962). Neither of
these cases are relevant, however, because they were decided
before the Inland Navigational Rules Act of 1980. See infra pp.
740-42.

13
initiated the maneuvering signals prescribed by Rule 34(a)(i), as

appropriate. When the downbound vessel exercises its authority

under Rule 9(a)(ii), the upbound vessel must give way, even "hold

as necessary to permit safe passing." 33 U.S.C. 2009(a)(ii).

The legislative history of Rule 9 supports this interpretation

of the rule. Rule 9 was among the rules Congress enacted in the

Inland Navigational Rules Act of 1980 ("INRA"), Pub.L. No. 96-591,

94 Stat. 3415 (codified as amended at 33 U.S.C. §§ 2001-73 (1988)).

The INRA was designed to unify the rules governing navigation in

the inland waters of the United States by replacing the existing

Inland Rules, Western Rivers Rules, and Great Lakes Rules with a

consolidated set of "Inland Navigational Rules." See S.Rep. No.

979, 96th Cong., 2d Sess. 1 (1980) ("INRA Senate Report"),

reprinted in 1980 U.S.C.C.A.N. 7068; INRA § 8, 94 Stat. at 3435-

36. The Senate Report accompanying the INRA explains the source of

Rule 9's potential internal conflict:

There is presently no requirement on the Western Rivers for
vessels to keep to the starboard side of a channel. This new
rule, however, requires compliance by all vessels and not
solely steam vessels (now described as "power-driven vessels")
on all waters. The rule places a burden on a vessel which is
on the port side of a channel to have a need for being there
or to establish agreement for a starboard-to-starboard
passage.

Rule 9(a)(ii) is not found in the 72 Colregs [10] and is
the result of a requirement for different rules because of
peculiar of special operating conditions on certain inland
waters. This rule is similar to existing Western Rivers Rule
19, existing Western Rivers Pilot Rule 95-11, and existing
Great Lake Rule 24. It recognizes the limited maneuverability

10
Congress modeled most of the INRA on the International
Regulations for Preventing Collisions at Sea, 1972 ("72
Colregs"). See INRA Senate Report at 1.

14
 of a downbound vessel and the occasional need to deviate from
Rule 9(a)(i) as a result of river current patterns when
rounding a bend in twisting, narrow channels and fairways.
Giving the right-of-way and choice in passing to downbound
vessels, with a following current, in the waters designed
[sic] in Rule 9(a)(ii) is considered essential for the safety
of navigation in narrow channels and fairways.

INRA Senate Report at 9-10, reprinted in 1980 U.S.C.C.A.N. at 7077.

In effect, Congress merged the "keep to starboard" requirement of

the former Inland Narrow Channel Rule, 33 U.S.C. § 210 (1976)

(repealed), with the downbound vessel's right-of-way under the

former Western Rivers Narrow Channel Rule, 33 C.F.R. § 95.11 (1978)

(repealed). The Senate Report clarifies that the downbound

vessel's right-of-way does not entitle her generally to ignore the

"stay to starboard" rule of Rule 9(a)(i), but rather entitles the

downbound vessel to deviate from the default rule of 9(a)(i) as

circumstances may require. The plain language of the rule, in

turn, requires downbound vessels exercising this option to propose

the manner of passage and initiate any necessary maneuvering

signals.

With respect to Rule 14, we agree with Tako Towing that it

alone does not require "that a vessel stay on one side or the other

of a non-existent imaginary line down the center of the river."

Indeed, if Rule 14 required vessels to keep to their starboard side

of the river, this would render Rule 9(a)(i) redundant.11

11
We also note that such a rule would be inconsistent with
the point-bend custom on the Mississippi River which requires
frequent departures from the port-to-port passing default rule.
"According to this custom, the northbound vessel navigates
upriver by going "over the points,' that is, by navigating close
to the points, while the southbound vessel "runs the bends,' that
is, adheres as closely to the bends as safe navigation allows.

15
Nevertheless, Rule 14's requirement that vessels pass port-to-port

does make a vessel's course and location on the river relevant to

a determination whether she violated Rule 14. For example, a court

could reasonably conclude that a downbound vessel's position on the

east side of the channel prevented her from being able to pass an

upbound vessel port-to-port as required by the rule.

We further hold that Rule 14(d)'s right-of-way for downbound

vessels modifies Rule 14(a) in the same way that Rule 9(a)(ii)

modifies Rule 9(a)(i). Specifically, Rule 14(d) gives a downbound

vessel on the Mississippi authority to depart from the default

requirement of a port-to-port passing, provided she complies with

the requirements of Rule 14(d). As with Rule 9(a)(ii), we have

found no case law interpreting the interaction of Rules 14(a) and

(d). However, because Rule 14(d) is nearly identical to Rule

9(a)(ii), Rule 9(a)(ii)'s legislative history is similarly

relevant.12 In addition, pre-INRA cases are more informative on the

question of the interaction between Rule 14(a) and 14(d) than with

respect to Rule 9. Former Western Rivers Rule 18, 33 U.S.C. § 343

This practice permits traffic proceeding upriver to avoid the
strong current by taking advantage of the slack water beneath the
point and allows the less maneuverable traffic proceeding
downriver to run with the current into the bends." Canal Barge
Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1361 (5th
Cir.1985).
12
In fact, Rule 9(a)(ii) modifies both Rule 9(i) and 14(a).
See 33 U.S.C. 2009(a)(ii) ("Notwithstanding paragraph (a)(i) and
Rule 14(a)...."). The right of way provision of Rule 14 was
added to the Rules in 1984, see Act of Oct. 30, 1984, Pub.L. No.
98-557, § 16, 98 Stat. 2860, 2867 (1984), but the reference in
Rule 9(a)(ii) to Rule 14(a) was not removed, making the
provisions redundant.

16
(1976) (repealed) required vessels meeting end on to pass

port-to-port and at the same time gave downbound vessels the

right-of-way. Cases interpreting the right-of-way provision of

former section 343 support our interpretation of Rule 14. In

Inland Oil Transp. Co. v. Ark-White Towing Co., 514 F.Supp. 500

(E.D.La.1981), modified in part, 696 F.2d 321 (5th Cir.1983), for

example, the court applied Western Rivers Rule 18 to a collision

between a downbound and an upbound vessel on the Mississippi River.

The district court found the downbound vessel 257 liable because

she navigated too close to her port side of the river,

notwithstanding her right-of-way, and we affirmed the court's

finding. See 696 F.2d at 326; 514 F.Supp. at 502.

In sum, we hold that a vessel descending the Mississippi

River must adhere to the default requirements of Rules 9 and 14

(that is, stay to starboard through a narrow channel and generally

pass port-to-port) unless otherwise agreed; however, downbound

vessels may force a departure from these default rules provided

they comply with the requirements in Rules 9(a)(ii) and 14(d) that

they propose the manner of passage and initiate maneuvering signals

prescribed by Rule 34(a)(i), as appropriate. The district court in

this case found that "because the Tako Invader was on the eastern

side of the river, contrary to the agreed to port-to-port passage

as set out in Rules 9 and 14 ..., she was in violation of the

statute." However, the Tako Invader's position on one side or the

other of the center of the river does not conclusively establish

that she violated Rule 14, and the court did not make the findings

17
necessary to support its application of Rule 9. Consequently, we

remand this issue for further consideration.13

Tako Towing's remaining arguments regarding the court's

apportionment of fault essentially restate its position at trial:

that Marine Guardian's failure to hold up under the bridge, radio

Tako Invader, or take evasive action prior to the collision

warrants more than a 257 share of the fault behind the collision.

The district court concluded that the Marine Guardian violated the

Inland Navigational Rules in all of these respects,14 and Tako

Towing's sole complaint is the relative fault that the court

attached to these violations. If on remand the court finds that

the Tako Invader violated Rules 9 and 14, we cannot say that a 75-

25 apportionment of fault in favor of Marine Transport would be

clearly erroneous.

III

For the foregoing reasons, we AFFIRM in part and REMAND in

part.

13
We note that this question becomes all the more important
if the court finds on remand that Rule 9 does not apply to the
Luling Bridge channel.
14
It is unclear from the court's ruling what rule the Marine
Guardian violated when she failed to hold up under the bridge.
The court found that the Marine Guardian violated Rule 14
(presumably 14(d)), but if failing to hold up under the bridge
violated Rule 14(d), then it would also necessarily violate Rule
9(a)(ii). The court did not find the Marine Guardian in
violation of Rule 9, however; we therefore instruct the district
court to reconsider this issue on remand.

18