REVISED, JANUARY 18, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 99-30913
________________________
THE TOKIO MARINE & FIRE INSURANCE CO., LTD., ET AL.
Plaintiff,
v.
FLORA MV, ET AL.
Defendant.
_________________________________________________________________
FORMOSA PLASTICS TANKER CORP.
Plaintiff-Appellee,
v.
FLORA MV, HER ENGINES, TACKLE, APPAREL, ETC., IN REM;
SEGESTA SHIPPING CO., LTD.; EFNAV CO. LTD., IN PERSONAM
Defendant-Appellant.
_________________________________________________________________
In the Matter of the complaint of FLORA MV,
For Exoneration from or Limitation of Liability
SEGESTA SHIPPING CO., LTD.; EFNAV CO., LTD.; FLORA MV
Petitioner-Appellant,
v.
FORMOSA PLASTICS TANKER CORP.
Claimant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana.
_________________________________________________________________
January 3, 2001
Before KING, Chief Judge, WIENER, and CUDAHY,* Circuit Judges.
CUDAHY, Circuit Judge:
On the evening of April 11, 1997, two vessels collided in
the Gulf of Mexico. The chemical tanker M/V Formosa SIX
(“Formosa Six”) was heading outbound from the mouth of the
Mississippi River, going south toward a voluntary fairway system
located in an area called the Southwest Pass. The bulk carrier
M/V Flora (“Flora”) was heading in a northerly direction inbound.
Despite the apparent expanses of available water, Flora managed
to strike Formosa Six, damaging both vessels and causing Formosa
Six’s liquid chemical cargo, owned by Mitsubishi Corporation, to
pour into the sea. The collision occurred south of a sea buoy
located just south of the Southwest Pass.
In April 1997, Mitsubishi filed a claim in the Eastern
District of Louisiana against Flora and Six interests1 for the
cargo lost and damaged. The owner of Formosa Six, Formosa
Plastics Tanker Corporation, filed a separate action against
Flora interests. Flora’s owners (Segesta Shipping Company, Ltd.)
and managers (EFNAV Company, Ltd.) filed a petition seeking
*
Circuit Judge of the United States Court of Appeals for
the Seventh Circuit, sitting by designation.
1
“Interests” refers to the owners and/or managers of the two
vessels.
2
exoneration from or limitation of liability. These cases were
consolidated. Flora interests later filed a counterclaim in the
consolidated case against Formosa, seeking recovery of damages
sustained by Flora. Mitsubishi filed a motion for partial
summary judgment against Flora interests in April 1998, and the
district court granted that motion, finding that Flora was at
fault in the collision and was therefore obliged to fund the
cargo damage claim. Flora interests filed a motion for
reconsideration, which the court denied. The court bifurcated
the liability and damage issues, and the liability trial was held
in December 1998. The court issued an order in January 1999,
finding Flora 80 percent responsible for the collision and Six 20
percent at fault. Flora again filed a motion for
reconsideration, which the court denied. Following a stipulation
on damages, the court entered a damages judgment in August 1999,
awarding Formosa Six interests $3,343,179, plus interest and
costs, and dismissing Flora’s limitation action. The judgment
also acknowledged settlement by the parties of the Mitsubishi
claim by contributions of $220,000 from Formosa interests and
$880,000 from Flora interests. Flora appeals and we affirm.
In this appeal, Flora argues that the district court erred
as a matter of law in determining the proximate cause of the
collision by failing to apply pertinent law. In the alternative,
Flora contends that the district court’s apportionment of fault
3
was clearly erroneous. We address these arguments in turn.
I.
Flora contends that the district court erred as a matter of
law by failing to apply several arguably applicable regulations.
Collisions at sea are governed by internationally accepted
regulations recognized by treaty; in the United States these are
codified at 33 U.S.C. foll. § 1602 (“COLREGs”). In arguing that
the district court failed to properly apply these regulations,
Flora apparently hopes that this court will review the findings
of the trial court de novo rather than under the appropriate
clearly erroneous standard. Conclusions of law are, of course,
reviewed de novo. See Phillips Petroleum Co. v. Best Oilfield
Servs., 48 F.3d 913, 915 (5th Cir. 1995). When reviewing mixed
questions of law and fact, this court should reverse only if the
findings are based on a misunderstanding of the law or a clearly
erroneous view of the facts. See Bose Corp. v. Consumer’s Union
of U.S., Inc., 466 U.S. 485, 501 (1984). Because the proper
regulations were considered and applied, as we discuss below, we
find that there was no misunderstanding of the law.
Flora’s argument that the district court erred in its
application of the relevant regulations is grounded in a rule for
finding liability in collisions at sea—-the Pennsylvania rule.
Under the Pennsylvania rule, if a vessel involved in a collision
was violating a statutory rule intended to prevent collisions,
4
the burden shifts to the violating vessel to show that its fault
could not have been a cause of the accident. See The
Pennsylvania, 86 U.S. (19 Wall.) 125 (1874); see also Garner v.
Cities Serv. Tankers Corp., 456 F.2d 476, 480 (5th Cir. 1972).
The rule thus creates a presumption that one who violates a
regulation intended to prevent collisions will be deemed
responsible; but that presumption is rebuttable. See Otto
Candies, Inc. v. M/V Madeline D., 721 F.2d 1034, 1036 (5th Cir.
1983). Further, as discussed below, the Pennsylvania rule
applies only to violations of statutes that delineate a clear
legal duty, not regulations that require judgment and assessment
of a particular circumstance.
Specifying the rules that her adversary allegedly violated,
Flora first contends that the trial court erred by failing to
take into account Formosa Six’s violation of COLREG Rule 5 in
apportioning responsibility for the collision. COLREG Rule 5
provides:
Every vessel shall at all times maintain a proper look-out
by sight and hearing as well as by all available means
appropriate in the prevailing circumstances and conditions
so as to make a full appraisal of the situation and of the
risk of collision.
33 U.S.C. foll. § 1602. Flora is asking this court to find fault
with the district court’s failure to acknowledge that Six’s lack
of a look-out was “crucial,” and the proximate cause of the
accident. Because Flora is here taking issue with the district
5
court’s finding of fact, we review this aspect of the district
court’s decision for clear error. See Bose, 466 U.S. at 501.
The trial court found that Formosa Six had not complied with
the cited regulation; that is not disputed. Thus, Flora’s
argument involves the district court’s weighing of the evidence,
not its application of the law. The court erred, Flora contends,
by failing to impose the Pennsylvania burden. But the district
court clearly did consider the predicate facts that constitute a
violation of COLREG Rule 5. The district court also found that
Formosa Six violated that regulation, and that such failure was a
contributing cause of the collision. See Tokio Marine & Fire
Ins. Co., Ltd. v. M/V FLORA, No. CIV. A. 97-1154, 1999 WL 14000,
at *14 (E.D. La. Jan. 11). The court, in fact, found that this
failure “was a contributory cause, though a relatively small one,
of the collision.” Id. at *14. Flora argues that this was an
error of law, and then cites the importance of complying with
Rule 5 as well as the importance of having a look-out on the
Formosa Six at this critical juncture. The importance of the
regulation does not change its application, nor does it impugn
the finding of fact made by the district court. The dispute
Flora has is with the district court’s finding of fact that
Formosa Six’s failure to have a look-out was not as “crucial” a
factor in the collision as Flora seeks to make it. However,
neither Formosa Six nor the district court clearly indicated why
6
this failure was not to be considered a more critical cause of
the accident. But because this finding is reviewed only for
clear error, and Flora has not demonstrated error of that sort,
we find that the district court, in its considered judgment,
properly weighed Formosa Six’s violation of Rule 5 in determining
the proximate cause of the collision.
Flora next argues that the district court failed to impose
the “requirement” embodied in COLREG Rule 8(c) on Formosa Six.
Rule 8(c) states:
If there is sufficient sea room, alteration of course alone
may be the most effective action to avoid a close-quarters
situation provided that it is made in good time, is
substantial and does not result in another close-quarters
situation.
33 U.S.C. foll. § 1602. To fail to refer to this provision of
the rule explicitly in its findings of fact is certainly not
clear error, let alone a mistake of law. First, the district
court did consider Rule 8 in making its findings. The court
recognized a duty under Rule 8 to take action to avoid collision,
and that both Flora and Formosa Six had failed to fulfill this
duty. See Tokio Marine & Fire, 1999 WL 14000, at *12. Second,
the language of Rule 8(c) is suggestive, rather than mandatory.
The Pennsylvania rule applies in cases in which a “precise and
clearly defined duty” is mandated by the relevant statute, not
when the statute “calls for the use of interpretation and
judgment.” Interstate Towing Co. v. Stissi, 717 F.2d 752, 756
7
(2d Cir. 1983). The provision of the rules at issue here falls
within the latter category rather than the former. Thus, the
burden did not have to shift to Formosa Six for a violation of
Rule 8(c), and the court cannot have erred in not shifting more
of the onus on Formosa Six for violating it. Indeed, the
Pennsylvania rule was not even mentioned in Zim Israel Navigation
Co., Ltd. v. Special Carriers, Inc., M/V, 611 F.Supp. 581 (E.D.
La. 1985), a case in which one party was deemed to have violated
Rule 8(c). The fact that the rule had been violated was
considered in determining the cause of the collision, but no
presumption of fault was invoked. It is evident that the
district court did not err in its application of Rule 8, nor in
its failure to mention Rule 8(c).
Flora next contends that “special circumstances” justify its
own violations of the COLREGs, and that these same circumstances
demand a finding that Formosa Six violated COLREG Rule 2. That
rule states:
Nothing in these Rules shall exonerate any vessel, or the
owner, master or crew thereof, from the consequences of any
neglect to comply with these Rules or the neglect of any
precaution which may be required by the ordinary practice of
seamen, or by the special circumstances of the case.
33 U.S.C. foll. § 1602. The “special circumstances” to which
Flora refers involve an alleged custom that, in the Southwest
Pass, outbound vessels must take extra care when leaving the area
to avoid a collision, and inbound vessels have the right of way.
8
But the existence of such a custom was convincingly undermined by
two bar pilots’ testimony.2 On the other hand, Captain Douglas
Torborg, the Flora expert mariner, testified to the existence of
the custom. But the district court did not take this alleged
custom into account in determining fault, which Flora contends
was an error of law.
However, a court does not err as a matter of law by failing
to take into account a custom whose existence is successfully
disproved. The court properly found that Flora’s violation of a
port-to-port passing agreement, which it had entered into with
Six some minutes before the collision, had “no basis in maritime
law or custom.” Tokio Marine & Fire, 1999 WL 14000, at *12. We
see no reason to conclude that an alleged custom giving inbound
vessels right of way vitiated the port-to-port agreement, or
required apportionment of greater responsibility for the
collision to Formosa Six.
Both bar pilots testified that there was no such custom. An
amicus brief filed by the Associated Branch Pilots of the Port of
New Orleans asserts the same, arguing that there is no custom
2
When proceeding into and out of the Mississippi River via
the Southwest Pass, vessels are required to carry a bar pilot in
addition to their regular crew. Bar pilots are typically picked
up and dropped off near the sea buoy located just south of the
Southwest Pass. The bar pilots who testified in this case were
the pilots for Flora and Formosa Six that evening. They were in
a position to witness the movement of the vessels prior to the
collision.
9
assigning a “right of way” in the Code of Federal Regulations or
in the practice of pilots and mariners. This conclusion is
buttressed by the decision of this court in Hal Antillen N.V. v.
Mount Ymitos MS, 147 F.3d 447 (5th Cir. 1998), which reversed a
district court’s finding that—in the area at issue in this
case—there existed a custom of passing starboard to starboard,
not port to port, as the COLREGs provide. Noting that a custom
that conflicts with the COLREGs would be “confusing,” that this
custom was not published and that there was “highly contradictory
testimony” about whether the custom existed, this court held that
the district court’s finding that such a custom existed was
clearly erroneous. See id. at 451. Flora does not dispute this,
but instead argues that because this court in Hal Antillen N.V.
apparently left intact the district court’s finding that inbound
vessels have the right of way in the Southwest Pass, that custom
does exist. We believe, however, that there is sufficient
evidence in the present case to support the district court’s
apparent conclusion that there is no right-of-way preference for
inbound ships.
Even if there were such a custom, the district court found
that the present vessels had entered into an agreement to pass
port to port. Any such agreement would override custom. As we
noted in Canal Barge Co., Inc. v. China Ocean Shipping Co., “Even
when the custom prevails, pilots of approaching vessels may agree
10
to pass in some fashion other than in the manner provided by
habitual practice.” 770 F.2d 1357, 1361 (5th Cir. 1985).
II.
Flora’s next line of attack is aimed at the district court’s
findings of fact that led to its conclusion that Flora was 80
percent at fault for the collision. We recapitulate briefly the
court’s findings that led to this conclusion. Formosa Six had
just completed a downriver passage from the Mississippi River,
and was proceeding from the Southwest Pass in the Gulf of Mexico
toward the sea buoy just south of the Southwest Pass. Six was
being directed by compulsory Bar Pilot Kevin Leger. Vessels
departing the Southwest Pass proceed on a southerly heading into
the voluntary fairway system, which looks like an inverted “Y”
and bifurcates into two legs proceeding respectively in the
southeast and the southwest directions. Six was being steered by
hand, aided by two radars and one Automated Radar Plotting Aid
(ARPA). The ARPA was equipped with a closest point of approach
(CPA) alarm, set to alert navigators to any vessel that would
pass within a 0.5 nautical mile radius of Six within a 20-minute
time period. Flora was proceeding on a northerly course in the
Gulf of Mexico, inbound and seaward of the Southwest Pass sea
buoy. Flora was equipped with an ARPA and three radars.
However, Captain George Gatsos, the vessel’s master, testified at
11
trial that he used only one radar and did not turn on the ARPA
that evening.
Somehow, these two vessels, proceeding on a clear night in a
relatively large fairway, collided. How this could happen with
abundant sea room available may be mystifying to landlubbers, but
navigation at night has its special challenges. What exactly
happened here was a source of furious contention in the trial
court. At around 2005 hours, as Six was entering the Gulf of
Mexico, the Six crew observed Flora approaching and set Flora on
its ARPA with a CPA of 0.5 and a CPA time of 20 minutes. Thus,
the CPA alarm would sound when Flora was in a position to be
within 0.5 nautical miles of Six not more than 20 minutes later.
At about 2007, Bar Pilot Leger, aboard Six, conferred by radio
with Flora and agreed to pass port-to-port.3 Six then turned to
starboard to “make a lee” (turning to protect a small craft from
the wind) to shelter Leger in departing the ship. At no time in
this sequence did Six have a full-time watch. Shortly
thereafter, the pilot boat that had picked up Leger asked Flora
to make a lee for Bar Pilot Samuel Eddy to board Flora. Flora
stated that it would turn to starboard to make a lee for the bar
pilot, but instead turned to port. Flora Captain Gatsos did not
notify the pilot boat or the Formosa Six that he was turning to
3
Flora argues that there was no such agreement. However,
the fact that there was an agreement was not disputed at trial
either by Flora’s arguments or by Captain Gatsos’ testimony.
12
port instead of to starboard. Thus, according to the district
court, Flora made a sudden, hard and unexpected turn to port just
prior to the collision. A little before this, after dropping off
Pilot Leger, Formosa Six returned to a southerly course and
shortly learned that it had moved into a dumpsite at the west
side of the fairway. The vessel turned somewhat to port in an
effort to maneuver out of the dumpsite area, still expecting to
accomplish a port-to-port passage.
The location of the collision, and the speed at which the
two vessels were traveling, was hotly disputed at trial. The
district court ultimately found that the location of the
collision was consistent with Formosa Six’s version of the story:
it occurred approximately at the position claimed by Six and was
based on a global satellite positioning reading taken by Flora’s
third mate at the time of collision—-on Six’s side of the
fairway. The court also based this finding on its acceptance of
the testimony of Formosa Six’s expert witness, Gary Maseuth, as
well as on the location of the chemical spillage from Six on the
ocean floor. The court rejected the testimony of Captain
Torborg, Flora’s expert mariner, who testified that no one could
determine the position of the vessels at the time of collision,
and that global satellite positioning data can be inaccurate.
This district court finding was significant because it showed
that the Flora “had moved far from the center of the safety
13
fairway and was encroaching significantly on to the part of the
fairway occupied by the FORMOSA SIX.” Tokio Marine & Fire, 1999
WL 14000, at *8. The court also found that Flora was traveling
at a speed of at least two knots, which was significant because,
if Flora had been going much slower, as Captain Gatsos testified,
it would have been powerless to avoid the accident in the last
few minutes, when a collision appeared likely to occur.
This court reviews the district court’s findings of fact for
clear error. See Fed.R.Civ.Proc. 52(a); American River Trans Co.
v. Kavo Kaliakra SS, 148 F.3d 446, 449 (5th Cir. 1998). This
standard also applies to apportionment of fault. See Inland Oil
& Transp. Co. v. Ark-White Towing Co., 66 F.2d 321, 325 (5th Cir.
1983), abrogated on other grounds, City of Milwaukee v. Nat’l
Gypsum Co., 515 U.S. 189 (1995). The Supreme Court articulated
the meaning of this standard of review:
If the district court’s account of the evidence is plausible
in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
Findings based on the credibility of witnesses demand even
greater deference. See Fed. R. Civ. P. 52(a); Anderson, 470 U.S.
at 575. Flora points to nothing that resembles clear error.
A.
14
Flora argues vociferously that the trial court erred by
using the respective distance toward each other covered by the
two vessels immediately before the crash to determine the 80-20
proportion of liability between the parties. Flora notes,
correctly, that “[n]o jurisprudence supports an apportionment of
fault based on distance traveled from two arbitrary points.” The
calculation of distance covered, Flora contends, was the sole
basis for the district court’s apportionment of fault. Flora
claims that Formosa Six was more at fault because its turns were
so subtle that Flora could not detect them and thereby come to
the realization that port-to-port passing would not be feasible.
Formosa Six, Flora contends, was in the best position to
recognize Flora’s turning movement for what it was and steer out
of the way. Further, Flora argues, the fact that Six was
traveling much faster than Flora meant that it could have avoided
the accident more easily. All these arguments imply that, if the
district court had taken them into account—rather than
comparative distances covered by the vessels after an arbitrary
moment in time—its findings as to proportion of fault would have
been different. But the premise underlying this argument is
incorrect.
The district court did take into account other factors in
calculating the proportion of fault attributable to each party.
It found that an “overwhelming percentage of the accident was
15
caused by Flora’s violation of the port-to-port agreement and
lack of communication with the SIX.” Tokio Marine & Fire, 1999
WL 14000, at *17. It took account of Formosa Six Captain Kuo-
Hsiung Chen’s lack of awareness, which it noted “may have
contributed to the collision.” Id. And it concluded that “the
brunt of the blame” fell on Flora, because it “creat[ed] the risk
of collision by executing a precipitous turn in direct violation
of its port-to-port agreement with the FORMOSA SIX.” Id. The
court was also clearly influenced by the post-accident
alterations in Flora’s log book. “The unexplained alteration of
a ship’s record of maneuvers ‘not only cast[s] suspicion on the
whole case of the vessel, but creates a strong presumption that
the erased matter was adverse to her contention.’” Andros
Shipping Co. v. Panama Canal Co., 184 F.Supp. 246, 259 (D.C.Z.
1960) (quoting The Chicago, 94 F.2d 754, 762 (9th Cir. 1937)).
The court certainly took distance traveled into account, but
that was clearly not the only factor that contributed to its
conclusion as to the proportions of fault. We do note that the
distance traveled toward each other during the four minutes
before the collision, as the court found, was consumed about 80
percent by Flora and 20 percent by Formosa Six. It may be
unusual that the trial court chose to cite their proportions in
close proximity to its apportionment of fault. But using the
respective distances covered in moving to the point of collision
16
is not arbitrary or irrational. These proportions do tend to
show each vessel’s linear contribution to moving from a safe
course to a collision course. In any event, even if we might
have given different weight to different pieces of evidence than
did the district court, this is not a reason to disturb that
court’s findings of relative responsibility, absent a showing of
clear error. Here, there was no such showing.
B.
Flora also argues that it did not unilaterally terminate the
port-to-port agreement, and that therefore the trial court’s
finding that it had done so was clearly erroneous. It argues
that “termination” implies that another type of passing was
attempted, such as starboard-to-starboard. Perhaps a better term
for Flora’s actions is that it “violated” the port-to-port
agreement rather than “terminated” it. The facts are still the
same: Flora agreed to pass port-to-port and then turned sharply
to port just prior to collision. There is no clear error in the
district court’s finding here.
In the alternative, Flora argues that it was not
unilaterally responsible for the failure of the port-to-port
agreement because Formosa Six had made several gradual
adjustments to port prior to its last-minute turn; thus, both
parties were responsible. The trial court did not find that
Flora was unilaterally responsible for the failure of the
17
agreement; the court explicitly concluded that both vessels
violated the agreement. The district court took into account
Formosa Six’s gradual adjustments in determining Six’s fault in
the collision, and it relied on the bar pilots’ testimony that
Six’s gradual turn did not contribute to the collision as heavily
as Flora’s sharp turn.
Last, Flora makes a half-hearted argument that there was no
port-to-port agreement, because once each vessel started
maneuvering to make a lee, the agreement was abandoned and the
vessels were only required to adhere to the COLREG requirements.
This argument is without merit. The navigators of both vessels
agreed by radio that they would pass port to port, that agreement
was recorded and the recording was offered into evidence at
trial.4 The fact that there was such an agreement was stipulated
by all parties as uncontested.
C.
Next, Flora contends that the trial court committed clear
error when it found that Formosa Six might have been able to
steer clear of Flora if a look-out had been on watch. Flora
objects to the use of the word “might,” since Flora believes it
is uncontroverted that, if Six had had a look-out, the accident
could have been avoided. Captain Torborg testified that Formosa
4
Pilots Leger and Eddy, Captain Chen, and Captain Gatsos all
testified to this fact at trial.
18
Six could have turned to starboard any time before the collision
and thus avoided the collision altogether. Whether to accept
Torborg’s testimony is the prerogative of the trial court, which
is in a position to assess the credibility of witnesses. Again,
the district court considered Formosa Six’s fault, and came to
the conclusion that—despite Six’s critical error in failing to
have a look-out at all times—the failure was not a major factor
in causing the collision. There is simply nothing in the record
to demonstrate that this conclusion is erroneous.
D.
Flora also argues that the district court’s conclusion that
it turned hard to port was not supported by the evidence. Flora
claims that the testimony on which the district court relied—that
of the pilots in the pilot boat—was unreliable because they were
in no position to determine speed and did not see the collision.
While it is true that they did not see the collision itself, they
could see much of the maneuvers of the vessels before the crash.
The district court carefully balanced the testimony of Pilot Eddy
against the testimony of Captain Gatsos, and chose to credit
Pilot Eddy’s version of the story. Gatsos testified that his
turn to port was not rapid or sudden but part of a long turn
commenced long before the collision occurred. But Eddy, the
court noted, “clearly saw the FLORA make a sudden turn hard to
port about two minutes before the collision.” Tokio Marine &
19
Fire, 1999 WL 14000, at *4. Leger testified to the same effect.
See id. Thus, although the two bar pilots were in no position to
witness the actual collision, the district court accepted their
testimony that they were able to recognize Flora’s sharp turn to
port shortly before the collision. We see no clear reason to
reject this conclusion. We also see no reason to reject the
trial court’s conclusion that the pilots’ testimony was credible.
It was reasonable to reach such a conclusion: the pilots were
disinterested observers, their account was consistent with
Formosa Six’s account and their account was contradicted only by
that of a witness found not to be credible by the district
court—Captain Gatsos.
III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
20