COMPLAINT OF SEIRIKI KISEN KAISHA

• Decision Date: 07 April 1986
• Docket Number: 82 Civ. 2718 (LBS).,No. 82 Civ. 2681 (LBS),82 Civ. 2681 (LBS)
• Parties: In the Matter of the Complaint of SEIRIKI KISEN KAISHA and Dragon Navigation, S.A., Plaintiffs, as Owner and Bareboat Chartered Owner, respectively, of the M/V SEIRYU, for Exoneration from or Limitation of Liability. In the Matter of the Complaint of STENA GULF LINE, LIMITED, as Owner, and Stena Line AB, as Disponent Owner of M/V STENA FREIGHTER, seeking Exoneration from or Limitation of Liability.
• Court: U.S. District Court — Southern District of New York

629 F. Supp. 1374

1986 AMC 913

In the Matter of the Complaint of SEIRIKI KISEN KAISHA and Dragon Navigation, S.A., Plaintiffs, as Owner and Bareboat Chartered Owner, respectively, of the M/V SEIRYU, for Exoneration from or Limitation of Liability.

In the Matter of the Complaint of STENA GULF LINE, LIMITED, as Owner, and Stena Line AB, as Disponent Owner of M/V STENA FREIGHTER, seeking Exoneration from or Limitation of Liability.

Nos. 82 Civ. 2681 (LBS), 82 Civ. 2718 (LBS).

United States District Court, S.D. New York.

January 14, 1986.

Memorandum Endorsement April 7, 1986.

COPYRIGHT MATERIAL OMITTED

Haight, Gardner, Poor & Havens, New York City, for Stena Gulf Line Ltd. and Stena Line AB; Richard G. Ashworth, James T. Shirley, Jr., of counsel.

Healy & Baillie, New York City, for Seiriki Kisen Kaisha and Dragon Navigation, S.A.; Nicholas J. Healy, Richard V. Singleton, of counsel.

Hill, Rivkins, Carey, Loesberg, O'Brien & Mulroy, New York City, for Seiryu Cargo Claimants; Raymond P. Hayden, Sanford E. Balick, of counsel.

Donovan, Maloof, Walsh & Kennedy, New York City, for The Stena Freighter Cargo; James P. Krauzlis, of counsel.

OPINION

SAND, District Judge.

These consolidated limitation proceedings arise out of the collision occurring on October 29, 1981 between the STENA FREIGHTER which was proceeding from Miami to Panama, and the SEIRYU, which was proceeding from the Panama Canal to Houston, following which the Seiryu sank with substantial loss of property but, fortunately, with no loss of life. The litigation has proceeded in stages, the first of which involved the resolution of the question of whether Cuban law or the Brussels Collision Convention of 1910 was applicable. At the conclusion of a hearing held on June 19, 1985, this Court ruled that Article 4 of the Brussels Convention would govern certain issues as to liability in these proceedings. We annex as Appendix A hereto the oral Opinion of the Court setting forth the reasons for that determination.

The next matters addressed by the Court relate to issues of liability. This Opinion constitutes our findings of fact and conclusions of law on liability issues, including petitions for limitation of liability and cargo claims. Questions relating to damages have been deferred until a later stage of these proceedings.

FINDINGS OF FACT

1. The Parties

Plaintiffs in 82 Civ. 2681, Seiriki Kisen Kaisha ("Seiriki"), a Japanese corporation and Dragon Navigation, S.A. ("Dragon"), a Panamanian corporation, were respectively owner and bareboat charterer of the Seiryu. In the second proceeding, 82 Civ. 2718, Stena Gulf Line, Ltd., ("Stena Gulf") a Cayman Islands corporation, and Stena Line AB ("Stena AB"), a Swedish corporation, were respectively owner and bareboat charterer of the Stena Freighter. Stena Gulf and Stena AB filed claims in the first proceeding for damage to the Stena and Seiriki and Dragon filed claims in the second proceeding for loss of the Seiryu. The owners of Seiryu's cargo on their own behalf and on behalf of their subrogees, filed claims in both proceedings for the cargo loss. However, the Seiryu cargo interests have settled with the Seiryu vessel interests and are now claiming only against the Stena. The owners of the Stena's cargo have filed certain claims for the amount of any contributions they might be required to make toward certain general average expenses said to have been incurred by the Stena following the collision.

Coordinated Caribbean Transport, Inc. ("CCT"), a Florida corporation, was time charterer of the Stena Freighter. Pursuant to a charter party containing an agreement to arbitrate disputes, CCT has withdrawn from this litigation.

2. The Vessels

The Stena Freighter was a 5,940 gross ton steel roll-on/roll-off motor vessel built in 1977 of 490.78 feet length and 70-73 feet in beam, registered in the Cayman Islands. The Seiryu was a 17,151 gross ton steel bulk carrier motor vessel built in 1976 of 180.16 meters length and 24.8 meters beam, registered in Japan.

3. Navigation and Collision

The parties have stipulated, Amended Pretrial Order at 4-5:

On October 29, 1981, the "STENA FREIGHTER," proceeding from Miami for Panama, and the "SEIRYU," proceeding from the Panama Canal for Houston, were in collision approximately 8.5 miles off Cape San Antonio at the westernmost end of Cuba, at 2330 "STENA FREIGHTER" time, 2230 "SEIRYU" time. The weather was clear and the visibility good.

The Seiryu was manned by a Master and crew who were Korean. The Master of the Stena was Canadian and her other officers were British. Depositions were taken of the officers who were aboard the vessel at the time of the collision and these depositions were received in evidence, but the only witnesses to testify at trial were expert witnesses.

The events immediately preceding the collision are in dispute and thus, to some extent, the Court is called upon to render determinations of the credibility of these witnesses. Since the credibility of both watch officers at the time of the collision is substantially impeached by the known documented facts concerning the position and movements of the ships, and since the testimony of these witnesses is to some extent implausible, we reject the version of the collision set forth by the watch officer of each vessel concerning his actions and omissions immediately preceding the collision.

According to the Seiryu witnesses, that vessel, showing proper navigation lights, was proceeding at full sea speed on a northwesterly course south of Cape San Antonio, Cuba. Approximately twelve minutes before the collision, Third Officer Bae, standing the watch, had a contact by radar of another vessel, bearing 75 degrees on the Seiryu's starboard bow at a distance of approximately six miles. With binoculars, he could see the outline of the other vessel, two white lights and, dimly, a red side light. Since the two white lights were open, with the left-hand lower than the right-hand light, Mr. Bae concluded that the other vessel was running parallel to the Seiryu's course. He continued to observe the other vessel and noticed that she was coming nearer to the course of the Seiryu.

The Seiryu interests further contend that approximately five to six minutes prior to the collision, Mr. Bae ordered the quartermaster on watch, who had been serving as look-out while the vessel was on automatic steering, to stand by the wheel. He claims that approximately four to five minutes before the collision, he flashed a warning signal to the other vessel by light. He sought to signal the other vessel by no other means. Receiving no response from the other vessel, which had more rapidly approached the course of the Seiryu, he ordered "hard left rudder" shortly before the collision. The order was executed, but the Stena Freighter crashed into the starboard side of the Seiryu in the area of No. 5 hold.

According to the Stena Freighter's watch officer, she was proceeding on course 204 degrees on automatic pilot with her engines at full ahead, making a speed of 15.6 knots over the ground. A.B. Mr. James Conteh was standing watch as a look-out with Third Officer Richards. At 22:20, Stena time, Richards, having determined her position to be 14.2 miles north of Cape San Antonio light, and to the left of the plotted course line, altered course to 208 degrees to make good a course of 204 degrees true. There were no subsequent changes in the course or speed of the Stena Freighter prior to the collision and the vessel remained on automatic pilot until the collision.

Richards testified at his deposition that he picked up the Seiryu by radar at a distance of more than fifteen miles on the Stena Freighter's port bow. About half an hour before collision, the look-out observed and reported the Seiryu's lights and Richards observed her lights at a distance of about twelve miles. Richards determined that the Seiryu was on a crossing course and that under the International Regulations for Preventing Collisions at Sea 1972 ("72 Col.Regs."), the Stena Freighter was the stand-on vessel and the Seiryu was the give-way vessel. Richards testified that he plotted successive positions of the Seiryu on the radar reflection plotter and concluded that the relative movement line was such that the Seiryu would pass astern of the Stena Freighter. As the vessels closed, Richards increased the range scale on the Stena Freighter's radar to the six-mile and then to the three-mile range. His continuing plots of the relative movement line showed the closest point of approach would be about a half a mile.

Richards testified at his deposition that he then prepared to signal the Seiryu but as he was picking up the Aldis Lamp he noted a change in the configuration of the Seiryu's masthead lights and saw for the first time her red port side running light. He concluded that the Seiryu had made an alteration of course to starboard to make a safe distance between the vessels, as the Seiryu would pass off the Stena Freighter's port quarter and go astern of the Stena Freighter. Having reached this conclusion, Richards put down the Aldis Lamp and proceeded to occupy himself with navigational duties unrelated to the Seiryu. He took a fix on Cape San Antonio, which was now abaft the beam on the same side of the Stena as the Seiryu. He turned and took a visual bearing on Cape San Antonio. He went to the radar and measured the distance off the light. He then went to the chart table, located in the after part of the Stena Freighter's wheel house, and plotted the position on the chart.

The look-out, Conteh, remained on the bridge as look-out while Richards was at the radar taking the range on Cape San Antonio and until about three minutes before the collision. He requested to go below to call the next watch, which permission Richards granted. After completing the navigational fix, Richards stepped around the chart table and, at that moment, saw the Seiryu dead ahead, proceeding at...