Ching Sheng Fishery Co., Ltd. v. U.S.
| Decision Date | 26 August 1997 |
| Docket Number | D,No. 697,697 |
| Citation | 124 F.3d 152 |
| Parties | CHING SHENG FISHERY CO., LTD., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 96-6161. |
| Court | U.S. Court of Appeals — Second Circuit |
William F. Dougherty, Burke & Parsons, New York City, for Plaintiff-Appellant.
Arthur J. Gribbin, United States Department of Justice, New York City (Frank W. Hunger, Assistant Attorney General, Mary Jo White, United States Attorney, Janis G. Schulmeisters, Attorney in Charge, on the brief), for Defendant-Appellee.
Before: WALKER, McLAUGHLIN, Circuit Judges, and CHIN, * District Judge.
Plaintiff-appellant Ching Sheng Fishery Co., Ltd., ("Ching Sheng") appeals from the final judgment of the United States District Court for the Southern District of New York (Allen G. Schwartz, District Judge ), relieving the United States of liability for damages resulting from a collision in the Malacca Strait between plaintiff-appellant's Taiwanese flag commercial fishing vessel, the HUI KUO NO. 16, and the USNS PONCHATOULA (the "PONCHATOULA"), a civilian crewed United States Navy oiler operated by the Navy's Military Sealift Command, based on its finding that the United States was not negligent. Because we agree with the district court that Ching Sheng bears sole responsibility for the collision, we affirm.
The litigation leading to this appeal arose from the collision between the PONCHATOULA and the HUI KUO NO. 16 shortly before 5:30 a.m. on March 23, 1991, in the narrow Malacca Strait. Fortunately, there was no loss of life. Acknowledging that it bore some responsibility for the collision, Ching Sheng sued the United States seeking damages for contributory negligence.
The parties stipulated to certain facts which are detailed in the district court's opinion, familiarity with which is assumed. Ching Sheng Fishery Co., Ltd. v. United States, No. 93 Civ. 1634, 1996 WL 161789 (S.D.N.Y. Apr. 8, 1996). We summarize those facts relevant to this appeal.
On March 22, 1991, at 7:40 a.m., 1 the HUI KUO NO. 16, equipped with a Furuno radar unit and a Tokyo Keiki (PR 2000) New Resco automatic pilot unit, departed Singapore, under the command of Captain Shaw Tzyh Ran ("Captain Shaw"), bound for the Indian Ocean, via the Malacca Strait, for an extended fishing voyage. As it passed through the Malacca Strait, the HUI KUO NO. 16 was headed in a generally northwesterly direction.
On March 23, 1991, at 12:01 a.m., the PONCHATOULA approached the western Malacca Strait, headed in a generally southeasterly direction, en route to Phattaya Beach, Thailand, following completion of a deployment to the Persian Gulf in support of Operation Desert Storm. At the time, the PONCHATOULA was equipped with two separate radar units, a Raytheon three centimeter radar and a Raytheon ten centimeter radar. Both radars could be monitored from separate radar repeaters located on the bridge. A Raytheon Collision Avoidance System (the "RAYCAS") was connected to the PONCHATOULA's ten centimeter radar repeater. The RAYCAS is a computer system which gives the course and speed of a designated radar contact and provides the time, bearing, and range of the contact's closest point of approach (the "CPA"). Only one contact may be designated as the CPA at any one time on the RAYCAS.
At 3:40 a.m., the PONCHATOULA's Second Officer Stephen Gioulis reported to the bridge, and at 4:00 a.m., following a briefing by Third Officer Cleveland James, Gioulis officially assumed the 4:00 to 8:00 a.m. bridge watch. The PONCHATOULA's speed was 18.1 knots on a 140 degree course. There were light seas and clear skies, with a wind of approximately 7 knots. Visibility was good and sunrise would occur at 6:15 a.m.
At 3:58 a.m., Gioulis plotted the PONCHATOULA's position by taking a radar range and bearing of a nearby island and ordered the helmsman to change the vessel's course to 134 degrees. No other navigational fix of the PONCHATOULA's position was taken.
After 4:30 a.m., Gioulis used the Raytheon three centimeter radar to track three vessels, which were 11.25 to 22.5 degrees off the PONCHATOULA's port bow. After acquiring the vessels on radar, Gioulis was able to locate them visually using binoculars. Each vessel was showing a single red (port) side light. After making his initial observation of the three vessels and plotting their positions on the three centimeter radar over approximately a six-minute period, Gioulis concluded that the closest vessel (the "first tanker") would pass ahead of the PONCHATOULA, crossing her bow, and the other two vessels would pass down the PONCHATOULA's port side. At this time, the three vessels were at least ten miles ahead of the PONCHATOULA. Gioulis testified that he did not use the RAYCAS because he thought the RAYCAS was experiencing technical problems that made its readings unreliable.
At 4:40 a.m., the first tanker turned to port, changing its display from the PONCHATOULA's vantage point from a red (port) side light to a green (starboard) side light, and started to move slowly across the PONCHATOULA's bow from port to starboard. Several minutes later, with the use of the vessel's alidade (which Gioulis testified is a telescope mounted over a compass repeater used to measure direction, course, and relative bearing of an approaching vessel), Gioulis noticed on the first tanker, in addition to the green side light, three vertical red lights that indicated that the vessel was constrained by its draft as defined by the International Rules of the Nautical Road. Once the first tanker had steadied on her new course and was "fine" (that is, within five degrees of the PONCHATOULA's bow) on the PONCHATOULA's starboard bow, Gioulis ordered the helmsman to come left from 134 degrees to a course of 125 degrees, to give the first tanker more room to pass down the PONCHATOULA's starboard side. It was now 5:00 a.m.
As he turned the PONCHATOULA to port, the helmsman actually overshot the ordered course of 125 degrees to 122 degrees, and Gioulis ordered the helmsman to steady on a course of 122 degrees. Shortly after the PONCHATOULA's course alteration, the first tanker altered its course to starboard to effect a starboard-to-starboard pass with the PONCHATOULA with a CPA of 1.7 miles.
Following the PONCHATOULA's course alteration, the two other vessels that Gioulis had been tracking were fine on the PONCHATOULA's port bow. Both continued to show red (port) side lights at a distance of approximately five nautical miles ahead of the PONCHATOULA. From his visual observations, Gioulis formed the impression that both vessels either were dead in the water or moving very slowly.
At 5:00 a.m., as Gioulis was altering the PONCHATOULA's course, the PONCHATOULA's master, Captain Peter Brent, arrived on the bridge. Captain Brent had not been called despite his orders that he be called once the PONCHATOULA approached within three hours of a point of reference known as the One Fathom Bank. When Captain Brent arrived at the bridge, the PONCHATOULA, at its rate of 18 knots, would have reached the One Fathom Bank in two hours and fifteen minutes.
Once on the bridge, Captain Brent checked the Raytheon ten centimeter radar and noted the vessels on the PONCHATOULA's starboard side. Captain Brent's standing orders to his bridge watchstanders required that they maintain a minimum three mile CPA for coasters and fishing boats. If a watchstander was unable to achieve these CPAs or believed that a situation posed a danger, his orders were to call Captain Brent fifteen minutes before arriving within three nautical miles of another ship or one nautical mile of a coaster or fishing boat.
Captain Brent designated the first tanker on the RAYCAS and determined that the CPA would be 1.6 nautical miles. The Captain checked the navigation chart and noticed that there had not been a navigational fix since 4:13 a.m. Captain Brent went out on the starboard bridge wing to take visual bearings on the first tanker as it passed down the PONCHATOULA's starboard side. He noticed the two more distant contacts ahead which were both showing red (port) side lights. The Captain took visual bearings on the two contacts for about three minutes and concluded that the closer of the two (the "second tanker"), which was also the furthest to starboard and now showing both green and red side lights, was also going to pass down the PONCHATOULA's starboard side.
When the Captain asked Gioulis about the two contacts, Gioulis said that he was aware of the contacts and that the second tanker was displaying three vertical red lights, indicating its movements were constrained by its draft. Captain Brent asked Gioulis for his proposed course of action, and Gioulis stated that he intended to come to port a few more degrees to open up the CPA of the first tanker and then come back to starboard to the original course of 134 degrees. When the Captain asked Gioulis where the PONCHATOULA was, Gioulis replied that he was not sure since they had not had a satellite fix in a long time.
At 5:15 a.m., Captain Brent directed Gioulis to obtain a fix on PONCHATOULA's positions and relieved him of the "conn" of PONCHATOULA because he did not want Gioulis to attempt to get a fix and monitor the radar contacts at the same time. At this time, the second tanker was shown on radar to be three and a half miles away.
At 5:17 a.m., Captain Brent ordered the PONCHATOULA's speed reduced from 115 RPM to 60 RPM. The Captain estimated that it could take up to ten minutes to effect such a reduction in speed. Captain Brent took visual bearings on the two vessels ahead of the PONCHATOULA and determined that the second tanker would pass close down the PONCHATOULA's starboard side. He was concerned about the third vessel, the HUI KUO NO. 16, which, according to the Raytheon ten centimeter radar, was maintaining a constant bearing of about ten...
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