494 F.3d 40 (2nd Cir. 2007), 06-0591, Otal Investments Ltd. v. M.V. Clary

Docket Nº:06-0591-cv(L), 06-0675-cv(CON), 06-0789-cv(CON), 06-0790-cv(CON).
Citation:494 F.3d 40
Party Name:OTAL INVESTMENTS LIMITED, as Owner of the M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant, United Services Automobile Association, ASI Auto Shipment GmbH, Ted L. Rausch Co., Charles Broomfield, Morgan Moon, Patricia York, Augusta Assicurazioni S.p.A., CHN Italia S.p.A., CNH Trade N.V., New Holl
Case Date:July 06, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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494 F.3d 40 (2nd Cir. 2007)

OTAL INVESTMENTS LIMITED, as Owner of the M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant,

United Services Automobile Association, ASI Auto Shipment GmbH, Ted L. Rausch Co., Charles Broomfield, Morgan Moon, Patricia York, Augusta Assicurazioni S.p.A., CHN Italia S.p.A., CNH Trade N.V., New Holland North, Inc., Fedex Trade Networks Transport and Brokerage, Inc., O & K Orenstein & Koppel A.G., Case Corporation and Tower Group International, Zurich Insurance Co., Alpina Insurance Co., Gerling Insurance Co., as subrogee and/or assignee of Schempp-Hirth Flugzeug-Vertriebs-GmbH, David Green Hill, Liebherr-Werk Nenzig GmbH, Liebherr-Mischteknik, LCT Liebherr Concrete Technologie, Liebherr America, Inc., E.H. Harms GmbH & CO., BMW of North America LLC, Claimants-Appellants,


M.V. CLARY, Mineral Shipping Co. Private Ltd., MST Mineralien Schiffahrt Spedition UND Transport, Clary Shipping PTE Ltd., Wallenius Wilhemsen Lines as, Wilh. Wilhemsen ASA, Actinor Car Carrier I as Capital Bank Public Limited Company, Third-Party-Defendants-Appellees,

M/V Tricolor, Consolidated Defendant,

N.V. Fortis Corporate Insurance, Claimants.

Nos. 06-0591-cv(L), 06-0675-cv(CON), 06-0789-cv(CON), 06-0790-cv(CON).

United States Court of Appeals, Second Circuit.

July 6, 2007

Argued: December 21, 2006.

Appeal from an order of the United States District Court for the Southern District of New York (Baer, J.) finding the M/V Kariba to be exclusively at fault for a collision that resulted in the loss of the M/V Tricolor and its cargo. We reverse and remand. Judge Newman concurs in the judgment and opinion of the Court and files a separate concurring opinion in which Judges Hall and Irizarry join.

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John D. Kimball, Healy & Baillie, LLP, New York, NY, for Plaintiff-Third-Party-Plaintiff-Appellant.

Raymond P. Hayden, Hill, Rivkins & Hayden, LLP (John Eric Olson and Kipp C. Leland on the brief), New York, NY, for Claimants-Appellants.

Chester D. Hooper, Holland & Knight, LLP (James T. Shirley and Francesca Morris on the brief), New York, NY, for Third-Party-Defendants-Appellees.

Lawrence G. Cohen, Vandeventer Black, LLP (Edward James Powers on the brief), Norfolk, VA, for Third-Party-Defendants-Appellees.

Before: JON O. NEWMAN, PETER W. HALL, Circuit Judges, DORA L.

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IRIZARRY, 1 District Judge.

HALL, Circuit Judge:

The owner of the vessel the M/V Kariba, and owners of cargo on the M/V Tricolor, appeal from a judgment of the United States District Court for the Southern District of New York (Baer, J.). The district court found the M/V Kariba solely liable for a collision off the coast of Dunkerque, France. We reverse and remand.

I. Background

A. The Collision

Before dawn on December 14, 2002, three vessels, the M/V Kariba (the "Kariba"), the M/V Tricolor (the "Tricolor") and the M/V Clary (the "Clary") were navigating a Traffic Separation Scheme ("TSS") in international waters north of Dunkerque, France (generally known as the English Channel). At the relevant point of the TSS, two branches intersect at approximately right angles, one branch cutting roughly North-South, the other roughly East-West. On the night in question, the fog was thick and visibility was low. The Kariba was proceeding westward at about 16 knots. The Tricolor was also proceeding westward at 17.9 knots, one-half mile to the starboard aft of the Kariba, and in the process of gradually overtaking her. At the same time, the Clary was moving northward, along the intersecting branch of the TSS, at 13 knots, on a collision course with the Kariba.

Noticing that it was on a collision course, the Clary planned to turn starboard and steer astern of the Kariba. Before the Clary began to turn, however, the Kariba initiated its own evasive maneuver. The Kariba, seeking to avoid a collision with the Clary--and perhaps unaware of the proximity of the Tricolor--made an abrupt turn to starboard. The Kariba struck the port side of the Tricolor, rending the Tricolor's hull below its bridge. The Tricolor along with its cargo then sank. 2 There were no human casualties.

In the quarter-hour leading up to the collision, none of the vessels sounded its foghorn or communicated with any other vessel via radio.

B. The Collision from the Perspective of the Three Different Ships

1. Onboard the Kariba

The Kariba is a 175.75 meters-long Bahamian flagged container ship, built in 1982, with a carrying capacity of about 1200 standard containers. Having left port in Antwerp, Belgium, the Kariba was bound for Le Havre, France, and travelling westward in the East-West Branch of the TSS. There were three men present on the bridge at the time of the collision: Captain Kamola, making his first restricted-visibility voyage as a Master; Second Officer Szymanski; and Able-Bodied Seaman Ignacio. The bridge featured an Automatic Radar Plotting Aid ("ARPA"), described as a computer system that "automatically tracks and plots target vessels and calculates their courses and speeds," thus predicting the "closest point of approach" of other vessels.

Captain Kamola first noticed the Clary on his radar at 1:55 a.m. At 2:00 a.m., upon making a planned adjustment to his course by rounding a point called the Fairy South Buoy, Captain Kamola noticed he might be headed for a collision with the

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Clary. Captain Kamola did not act, however, because he expected the Clary to steer astern of him. At 2:04 a.m., when his ARPA would have shown he was approximately 3.5 miles3 and eight minutes away from colliding with the Clary, Captain Kamola asked Syzmanski to go onto the port wing of the ship and to check for the Clary's lights. After looking for approximately two minutes, Syzmanski did not see anything. At this point, the Kariba was 2.8 miles away from a collision with the Clary.

By 2:09 a.m., Captain Kamola's radar still indicated the Clary had not changed course. Concerned about a collision, and now only 2.0 miles away from a collision with the Clary, Captain Kamola ordered a 10 degree turn to starboard (registered on the Dunkerque radar at 2:09:45 a.m.). Fifteen or 20 seconds later, Captain Kamola ordered another 20 degree turn to starboard. Seconds later, Captain Kamola saw the lights of the Tricolor and ordered the rudder full to starboard. It was too late, however; Kamola exclaimed, "Oh my God, we will hit them." Within the next minute or so, the Kariba's bow struck the Tricolor broadside. The Tricolor listed hard, capsized and sank.

2. Onboard the Tricolor

Built in 1987, the Tricolor was a 190 meters-long roll-on roll-off Norwegian flagged carrier, with a capacity to carry over 3,000 cars. On the day of the collision, the Tricolor was on a voyage from Zeebrugge, Belgium to Southampton, England, and headed westward in the East-West branch of the TSS. There were three men on the bridge of the Tricolor: Captain Knutsen, Second Officer Cabanda and Able-Bodied Seaman Matel.

After 2:00 a.m., Captain Knutsen was aware of the Kariba, as well as two other ships, ahead of him. At 2:12 a.m., Captain Knutsen noticed he was beginning to overtake the Kariba--and indeed, could see her lights. Knutsen was also aware of the Clary and its being on a collision course with the Kariba. Then suddenly, Captain Knutsen noticed the Kariba had abruptly and without warning turned to starboard, and was heading straight for him. In the moments leading up to the collision, Captain Knutsen had the Tricolor on autopilot. Seeking to avoid the collision, Captain Knutsen and Cabanda simultaneously converged on the wheel, hurriedly disengaged the autopilot and sent the vessel hard to starboard. Despite their efforts, the Kariba struck the Tricolor, which listed hard, capsized and sank.

3. Onboard the Clary

The Clary, a 138.5 meters-long Singaporean flagged bulk carrier, was built in 1979. On the day of the collision, the Clary had been on a voyage from Savannah, Georgia to the Netherlands. In the moments leading up to the collision, there was only one man on the bridge: Second Officer Toncic. While the Clary's bridge did not include an ARPA system, it did have a device that calculated closest points of approach, but only for vessels selected by Toncic.

By 2:00 a.m., Second Officer Toncic noticed the Tricolor and the Kariba on his radar. By 2:02 a.m., if Toncic had plotted

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the point of possible collision, he would have noticed that only 3.1 miles separated the Clary from the point of collision with the Kariba. At 2:11:15 a.m., Toncic decided it was time to make his starboard turn in order to pass astern the Kariba and the Tricolor, as suggested by basic navigational rules. According to the findings of the district court, Toncic then "moved away from his radar, plotted his position on the chart table," then disengaged his autopilot and made a "dramatic" turn to starboard. In making his turn "dramatic," Toncic had sought to ensure the maneuver would register on the radars of other ships. In their brief and at oral argument, counsel for the Clary stated an appropriately dramatic turn would be 50 or 55 degrees in magnitude. By the time the Clary turned to starboard, had the Kariba been able to maintain its westward course, the two ships would have been only about two miles apart while both were on a collision course. Two minutes later, Toncic heard "collision, collision, collision" on his VHF radio. Realizing the blips representing the Kariba and the Tricolor had...

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