Hellenic Lines, Ltd. v. Prudential Lines, Inc.
| Citation | 730 F.2d 159 |
| Decision Date | 22 March 1984 |
| Docket Number | No. 82-2071,82-2071 |
| Parties | In the Matter of the Complaint of HELLENIC LINES, LIMITED, as owner of the M/V HELLENIC CARRIER, for exoneration from or limitation of liability, Appellee, v. PRUDENTIAL LINES, INC., Appellant, and General Poultry Corporation; American Motorists Insurance Company; Fireman's Fund Insurance Company; Insurance Company of North America; St. Paul Fire & Marine Insurance Company; Biderman Insurance Company Ltd.; Sela; Ihud Insurance Agencies Ltd. on behalf of underwriters; Hamagen; Migdal; Menorah; Sahar; Hassneh; Arrarat; Arye; Home; Assicurazioni Generali; Norwich Union Fire Insurance Society Limited; Central National Corporation; Pakistan Papersack Corp., Ltd.; Habib Bank Ltd.; Ekman Co.; Adamjee Insurance Co.; Premier Insurance Co., Ltd.; W.K. Webster & Co.; American & Far Eastern Trading Co.; Albany-Atlas Group; Jawad Cold Stores; Pakistan Peper Corporation; Deitrich Industries; Mohammed Ahmed Jamil Ahmed; Metal Impex; Asian Agencies; Royal Steel Agencies; Steel Scrap Traders; Union Bank of Middle East, Ltd.; United Bank Ltd.; Leyden Shipping Co.; John S. James Company; Karr, Ellis & Co., Inc.; Poseiden Freight Fowarders; National Bank of Pakistan; Southern Steamship Agency, Inc.; Chevron Shipping Company; Caltex (Asia) Ltd.; American International Marine Agency; New Hampshire Insurance Company; Granite State Insurance Company; Philip Morris Incorporated; I.S.C.E. Terra; Prestagent Egyptian Marketing & International Trade; Royal Globe Insurance Company; Great American Insurance Companies; Commercial Insurance Companies; The Hartford Insurance Group; The Hartford Fire Insurance Company; Talbot, Bird & Co., Inc.; New Zealand Insurance Company; Northwestern National Insurance Company; Eagle Star Insurance Company; The Atlantic Companies; Atlantic Mutual Insurance Company; Centennial Insurance Company; Tokio Marine Management, Incorporated; Tokio Marine and Fire Insurance Company, Limited; Lloyd's Underwriters; A.M.E. International, Inc.; Intercon, Inc. t/a Outer Banks F |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Melvin J. Tublin, New York City (John J. Devine, Jr., Poles, Tublin, Patestides & Stratakis, New York City, R. Arthur Jett, Jr., Jett, Agelasto, Berkley, Furr & Price, Norfolk, Va., on brief), for appellee.
Before HALL and CHAPMAN, Circuit Judges and WYZANSKI, District Judge. *
This case arises out of the collision between the M/V Hellenic Carrier (the Hellenic) and the S/S Lash Atlantico (the Atlantico) in international waters off the coast of North Carolina. The district court apportioned 80% of the fault for the collision to Prudential Lines, Inc., owner of the Atlantico, and 20% to Hellenic Lines, Ltd., owner of the Hellenic. The district court also found that Hellenic Lines was entitled to limit its liability, pursuant to 46 U.S.C. Sec. 183 (1976), to its interest in its vessel and the vessel's freight. Prudential Lines appeals both the apportionment of fault and the limitation of Hellenic Lines' liability. For the reasons stated below, we remand the case to the district court for further consideration of the apportionment of liability in accordance with our interpretation of Rules 7 and 19(d)(i) of the International Regulations for Preventing Collisions at Sea, 1972, 28 U.S.T. 3459, T.I.A.S. 8587 (hereinafter cited as 72 Colregs) and to reconsider the matter of limitation of liability in light of this court's interpretation of Rule 7.
The Hellenic and the Atlantico collided on May 6, 1981 at approximately 0700 hours. The approximate position of the collision was 36? 15' North Latitude and 75? 34' West Longitude. Although both vessels incurred substantial structural damage, the collision did not result in the loss of life.
The district court made numerous findings of fact, which are summarized below.
Both vessels were equipped with radar. Atlantico had both a starboard and a port radar but both radars were faulty and found to be functionally inoperable at the time of the collision. The Hellenic carried only one radar but it was fully operable at the time of the collision.
The Hellenic was en route from Savannah, Georgia to Baltimore, Maryland and the Atlantico was en route from Newport News, Virginia to Charleston, South Carolina. At 0640, the Hellenic was proceeding on a course of 338? true at a speed of 14 knots in restricted visibility, and the Atlantico was proceeding on what its radar showed to be a course of 161? at a speed of 18 knots in restricted visibility. Weather was calm, with intermittent fog, limiting visibility to 500 to 1000 feet.
Chief Mate Konstantinos T. Rentas was the watch officer on the bridge of the Hellenic from 0400 until the time of the collision. At 0640, 1 Rentas observed a radar contact forward of the ship's beam at a distance of 12 miles, approximately 10? off the starboard of the Hellenic. At 0645, he ordered the course of the Hellenic changed to port from 338? to 330? to increase the passing distance between the vessels.
Approximately two minutes before the collision, the boatswain, who had been assigned as lookout on the starboard bridge wing of the Hellenic, heard two whistles from an approaching vessel. Approximately one minute before the collision, Rentas observed that the oncoming vessel was less than one mile from the Hellenic and that it was approaching the Hellenic on the starboard beam. At this point Rentas ordered a full port turn but it was too late to prevent the collision.
The crew of the Atlantico first observed the Hellenic on radar at 0650 when Paul Ticer, the second mate, observed a target at a distance of five miles and bearing 8? to 10? on what he believed was his port bow. The district court found, and Prudential Lines does not dispute, that this assessment was incorrect because the readings were taken from the Atlantico's unreliable starboard radar. The district court found that the Hellenic was actually about 5? to 7? on the Atlantico's starboard bow.
At approximately 0653, Captain Nicholas Tittonis ordered the Atlantico to change course four degrees to what he believed was 165?. From 0654 to 0659, Captain Tittonis ordered several small course changes to the starboard.
At approximately 0659, the Hellenic became visible to the occupants of the Atlantico's bridge. About 35 seconds before the collision Captain Tittonis ordered the rudder hard right and the engines stopped.
The district court found that, in the minutes before the collision, neither vessel attempted to communicate with the other and the Hellenic failed to sound any fog signals. The court also found that neither vessel slackened its speed, although both vessels were proceeding in restricted visibility.
The district court concluded that sixty percent of the fault for the collision was attributable to Prudential Lines for its failure to outfit the Atlantico with functional radar and that twenty percent was attributable to Prudential for the failure of the Atlantico to reduce its speed. The court apportioned the remaining twenty percent to Hellenic Lines for the failure of the Hellenic to reduce its speed.
Finally, the court allowed Hellenic Lines to limit its liability to the value of its interest in the Hellenic and her freight, pursuant to 46 U.S.C. Sec. 183 (1976), because the court found that the cause of the collision attributable to the Hellenic was not within the privity or knowledge of Hellenic Lines.
Prudential attacks both the district court's apportionment of liability between the two parties and the court's holding that Hellenic was entitled to a limitation of liability. We will address first the apportionment of liability between the parties.
Appellant argues that the court below erred in three instances by failing to assign fault to Hellenic Lines for the Hellenic's violations of the 72 Colregs. First, it asserts the district court erred in not finding the Hellenic at fault for her admitted failure to sound fog signals in violation of Rule 35(a) of the 72 Colregs.
There is no dispute that the Hellenic neglected to give fog signals in the minutes before the collision and that this omission was a violation of Rule 35(a). The only dispute is whether the district court properly applied the "Pennsylvania Rule" in determining that there was no causal relationship between the collision and the Hellenic's failure to give fog signals.
The "Pennsylvania Rule" is derived from The Pennsylvania, 86 U.S. 125, 19 Wall 125, 22 L.Ed. 148 (1873):
When ... a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions ... the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.
The district court concluded that Hellenic Lines had met its burden under the "Pennsylvania Rule" of showing that the absence of fog signals could not have contributed to the collision. Our review of the record convinces us that this finding is not clearly erroneous. There was expert testimony before the court that in the circumstances of this case, the sounding of a fog signal by the Hellenic would not have provided the Atlantico with any warning of the presence and location of another ship which had not already been provided by the Atlantico's...
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