Alkmeon Naviera, S.A. v. M/V Marina L

• Decision Date: 18 November 1980
• Docket Number: Nos. 77-1670,77-2021,s. 77-1670
• Citation: 633 F.2d 789
• Parties: ALKMEON NAVIERA, S.A., a corporation, Plaintiff-Appellant and Cross-Appellee, v. M/V "MARINA L," her engines, boats, tackle, apparel and furniture, and Elmarina, Inc., a corporation, Defendants-Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 789

633 F.2d 789

ALKMEON NAVIERA, S.A., a corporation, Plaintiff-Appellant and Cross-Appellee, v. M/V "MARINA L," her engines, boats, tackle, apparel and furniture, and Elmarina, Inc., a corporation Defendants-Appellees and Cross-Appellants.

Nos. 77-1670, 77-2021.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 5, 1979.

Decided Nov. 18, 1980.

Lawrence D. Bradley, Jr., Lillick, McHose, Charles, Los Angeles, Cal., for Naviera.

Jack D. Fudge, Los Angeles, Cal., argued, for M/V Marina; McCutchen, Black, Verleger & Shea, Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN and KENNEDY, Circuit Judges, and TAYLOR, ^* Senior District Judge.

KENNEDY, Circuit Judge:

On June 20, 1973, two freighters collided in dense fog off the coast of Baja, California. As a result, one ship, the Theokeetor, sank; the other, the Marina L, was severely damaged. This suit followed. After trial, the district court found both ships at fault, apportioned liability 60% to the Marina L and 40% to the Theokeetor, and denied any prejudgment interest. Both parties appeal.

I

On the day of the collision, the Theokeetor, owned by appellant Alkmeon Naviera, was heading north out of Tocopillo, Chili, bound for San Pedro. Twenty minutes prior to the collision, it was on a gyro course of 340 degrees true. It had been in fog for over four hours. The district court found that, during this time, it had proceeded at full cruising speed with only one operable radar unit. This unit was set on the twelve-mile range.

At the same time, the Marina L, owned by appellee, Elmarina, Inc., was south bound in ballast on a gyro course of 161 degrees or a true course of 159 degrees. The heading of the ships, given their relative positions, essentially put them on a head-on collision course. Fog had surrounded the Marina L for almost two hours and it also was proceeding at full cruising speed.

Approximately ten minutes before the collision, the Marina L appeared dead ahead on the Theokeetor's radar at a distance of 3.5 nautical miles. The Theokeetor's master ordered her hard to starboard. ¹ To signal the change of course, he blew one blast on the ship's whistle. Four minutes later, the Theokeetor's radar showed the Marina L to be 30 degrees off the port bow. The Theokeetor's master continued the starboard turn and again blew the whistle once. Eight minutes after the first radar sighting of the Marina L, and some two minutes before the collision, the Theokeetor stopped its engines. Throughout this period, neither ship was visible from the other; fog limited visability to 200 meters.

Fifteen minutes prior to the collision, the Marina L's captain ordered a change in radar instruments. Although the starboard radar was still cold and untuned, the port radar was switched to standby. The Marina L's captain thereafter relied on the starboard radar for all navigation. This radar, like the Theokeetor's, was set on the twelve-mile range.

The Theokeetor first appeared on the Marina L's radar five minutes before the collision. The radar indicated that the Theokeetor was 2.3 nautical miles away. Its master immediately ordered the ship 8 degrees to port and signaled this by two blasts on the ship's whistle. Shortly thereafter, the captain ordered the ship more to port and again blasted the ship's whistle twice. The captain then stopped the engines. One minute prior to the collision, the Marina L's captain heard one blast from the Theokeetor's whistle and ordered the helm hard to port.

The blind maneuverings towards the east by both captains had brought the Theokeetor to a position perpendicular to the Marina L. This became apparent when, 20 seconds prior to impact, the Marina L's captain first saw the Theokeetor through the fog. He immediately ordered the engines full astern, but by then collision was unavoidable. The Marina L struck the Theokeetor broadside; the Theokeetor took water and sank.

The district court found three causes of the collision: immoderate speed by both ships; improper radar use by both ships; and improper maneuvering by the Marina L. The court assigned 40 percent of the cause of the collision to improper speed, 40 percent to improper radar use, and 20 percent to improper maneuvering. The court found both ships equally at fault with respect to speed and radar use. After finding that the Theokeetor could not have stopped in time, and would have increased the probability of collision by reversing engines, the court apportioned all the maneuvering fault to the Marina L. This resulted in an apportionment of liability of 60% to the Marina L and 40% to the Theokeetor. The Marina L's damages of $930,000, along with the Theokeetor's damages of $3,425,000, were apportioned accordingly.

On appeal, the owners of the sunken Theokeetor claim the district court erred in determining and apportioning liability, in assessing the value of their ship, and in denying prejudgment interest. The Marina L, on its cross-appeal, claims error in the district court's determination of the applicable legal standard and in its apportionment of liability. We deal with Marina L's claims first.

II

Elmarina asserts that the district court erred in allocating all the maneuvering fault to its vessel, the Marina L. It claims that the Theokeetor's failure to stop after sighting the Marina L, along with its subsequent turn to starboard, were improper as a matter of law. This claim of an application of an improper legal standard is fully reviewable on appeal and is not subject to the clearly erroneous rule. Diesel Tanker F. A. Verdon, Inc. v. Stakeboat No. 2, 340 F.2d 465, 468 (2d Cir. 1965). See also Stranahan v. A/S Atlantica & Tinfos Papirfabirk, 471 F.2d 369, 372-73 (9th Cir.), cert. denied, 412 U.S. 906, 93 S.Ct. 2293, 36 L.Ed.2d 971 (1973).

To decide Elmarina's claim, we must first decide what law controls. In collisions occurring on the high seas, general maritime law usually applies. The Scotland, 105 U.S. 24, 29, 26 L.Ed. 1001 (1881); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 452 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976). Where, however, both ships are of the same registry, the law of the common flag applies. The Scotland, 105 U.S. at 29-30; The Belgenland, 114 U.S. 355, 370, 5 S.Ct. 860, 867, 29 L.Ed. 152 (1885); Pacific Vegetable Oil Corp. v. S/S Shalom, 257 F.Supp. 944, 946 (S.D.N.Y.1966). Compare Arbitration of Paeuz-Pamare, 1949 A.M.C. 508, 512 (N.Y.1948) (collision in Gulf of Venezuela between ships of Venezuela registry; Venezuelan law applies) with Arbitration of Catatumbo-Quiriquire, 1949 A.M.C. 513, 520 (N.Y.1948) (collision eight months later in same area between ships of Venezuelan and British registry; lex fori, or New York law, applies). Here, since both ships are of Greek registry, the parties have agreed that Greek law controls. ² This does not mean, however, that our task becomes one of determining and applying foreign law; Greece, in common with most nations involved in commercial shipping, is a party to the 1960 Safety of Life at Sea Convention (1960 SOLAS). 6B A. Knauth & C. Knauth, Benedict on Admiralty 1064 (7th rev.ed.1969). The United States is also a member of that convention. Id. The provisions and annexes promulgated under the 1960 SOLAS were therefore not only the law of Greece, but also were the positive law of the United States. ³ Act of September 24, 1963, Pub.L. 88-131, 77 Stat. 195; Executive Order No. 239, 30 Fed.Reg. 9671 (1965) (implementing regulations and annexes). The guidelines of the 1960 SOLAS represent a uniform set of internationally recognized navigational rules and thus they have the status of general maritime law. Indeed, Professors Gilmore and Black have noted that "the more competent (ship officers) have most of the (rules) substantially committed to memory." G. Gilmore & C. Black, The Law of Admiralty 489 (2d ed.1975).

The parties have also conceded that certain provisions of the 1960 SOLAS control this case. As noted above, however, the provisions of the 1960 SOLAS constitute not only Greek and general maritime law, but American law as well. Thus, we are not presented with the thorny question of whether American precedent is applicable in interpreting another country's general maritime law of personal injury, see id. at 482-84; rather, we are presented with the interpretation of uniform international collision regulations which are not only the law of Greece and the United States, but also are the law of most seafaring nations. In order to achieve the uniformity of application and certainty of decision that the 1960 SOLAS was designed to promote, we consider all apposite precedent; this includes American law as well as the law of other signatories to the 1960 SOLAS. See, e.g., McDonald v. M/V Betty K II, 1958 A.M.C. 523, 525 (S.D.Fla.1958).

The 1960 SOLAS Convention, along with the regulations and annexes promulgated under it, provide navigation rules for differing weather conditions. Here, both ships were proceeding in heavily restricted visibility and both were relying on radar navigation. International Rule 16, 33 U.S.C. § 1077 (1976), relating to navigation in restricted visibility, and the radar annex, 33 U.S.C. § 1094 (1976), are applicable.

Rule 16 is in three subsections. While all agree that Rule 16(a) is not applicable to the maneuvering claims, the parties differ over whether Rule 16(b) ⁴ or Rule 16(c) ⁵ applies. We hold that Rule 16(c) controls.

Rule 16(b) establishes the proper conduct for a ship "hearing" the fog signal of another vessel. Rule 16(c), however, applies when the navigating vessel "detects" another vessel before hearing its fog signal. ⁶ Here, since the Theokeetor detected the Marina L on radar before hearing its fog signal, Rule 16(c) applies. ⁷

Elmarina claims that Rule 16(c) absolutely required the Theokeetor to stop its engines after the...