Fireman's Fund Ins. Companies v. Big Blue Fisheries, Inc.
| Decision Date | 24 April 1998 |
| Docket Number | Nos. 96-36053,96-36135,s. 96-36053 |
| Citation | 143 F.3d 1172 |
| Parties | , 98 Cal. Daily Op. Serv. 3082, 98 Daily Journal D.A.R. 4237 FIREMAN'S FUND INSURANCE COMPANIES; Compagnie D'Assurances Maritimes Aeriennes Terrestres; Great American Insurance Company; Aetna Insurance Company; Phoenix Insurance Company, a foreign Corporation, Plaintiffs-Appellees, v. BIG BLUE FISHERIES, INC., an Alaska Corporation, Plaintiff-Intervenor-Appellee, v. F/V KEVLEEN K, her engines, tackle, gear, equipment and appurtenances, Defendant, and Farr Fisheries, Inc., a Washington Corporation, Harold A. Brindle; Winn F. Brindle; Alec Brindle, in Personam, Defendants-Appellants, v. BIG BLUE FISHERIES, INC., an Alaska Corporation, Plaintiff-Intervenor-Appellee. FIREMAN'S FUND INSURANCE COMPANIES; Compagnie D'Assurances Maritimes Aeriennes Terrestres; Great American Insurance Company; Aetna Insurance Company; Phoenix Insurance Company, a foreign Corporation, Plaintiffs-Appellants, v. F/V KEVLEEN K, her engines, tackle, gear, equipment and appurtenances, Farr Fisheries, Inc., a Washington Corporation, Alec Brindle, In Personam; Winn F. Brindle; Harold A. Brindle, Defendants-Appellees, v. BIG BLUE FISHERIES, INC., an Alaska Corporation, Plaintiff-Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerome C. Scowcroft, Schwabe, Williamson & Wyatt, Seattle, WA, for defendants-appellants.
Paul Daigle, Seattle, WA, for defendants-appellants.
Thomas G. Waller, Bauer Moynihan & Johnson, Seattle, WA, for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-94-01866-TSZ.
Before: BROWNING, SKOPIL, JR., and O'SCANNLAIN, Circuit Judges.
The Kevleen and the Big Blue collided while fishing in the Bering Sea. The district court held both vessels liable, apportioning 85% of the fault to the Kevleen, and 15% to the Big Blue. The Kevleen appeals the district court's refusal to fault the Big Blue because its lookout failed to plot the Kevleen's course on radar. The Big Blue and its insurers cross-appeal the district court's demurrage award to the Kevleen. We uphold the district court's finding that the Big Blue's use of radar was non-negligent, but reverse the district court's demurrage award because it is unsupported by the record. 1
The Big Blue and the Kevleen were under way in the Bering Sea in the early morning hours of February 4, 1994. The Big Blue initially steamed at 5.2 knots on a southwesterly course made good ("course") of 226 degrees. 2 The Kevleen initially steamed at between 8 and 9 knots on a northeasterly course of 30 degrees. In order to compensate for wind and sea conditions, the Big Blue's heading was slightly to port of its course, and the Kevleen's heading was slightly to starboard of its course.
Tom Thissen stood watch on the Big Blue, and initially sighted the Kevleen visually and by radar when the vessels were six miles apart. Thissen noted that the oncoming vessel's bearing was on or slightly to port of the Big Blue's heading, which indicated that the ships were on reciprocal or head-on courses. When the Kevleen's heading failed to change as the distance between the ships closed to three miles, Thissen made a 10 degree starboard turn to facilitate the port-to-port passing mandated by the Rules of the Road in head-on situations. 3 As the vessels neared, Thissen made three attempts to contact the Kevleen by radio, but all failed. When the ships were about one mile apart, Thissen tried to turn 90 degrees to starboard using his autopilot, but failed to execute the turn fully.
Lance Farr, standing watch on the Kevleen, used his radar to plot the Big Blue's position when the ships were six miles apart and again when they were three miles apart. Farr believed the ships were on crossing courses, which gave the Kevleen the right of way and required the Big Blue to stay clear. Farr did not take the Big Blue's bearing, but noted it was constant. When the ships were three miles apart, Farr turned his attention away from the approaching Big Blue to plan his next crabbing run. When he looked up, the ships were two boat lengths apart. He attempted to put the Kevleen in reverse and turn, but failed.
The Kevleen struck the Big Blue on its port beam at a 90 degree angle, but neither ship sank. The Big Blue secured temporary repairs, and completed its opilio crab season. The ship sought permanent repairs in Seattle at the end of June, and consequently missed the 1994 halibut season. The Kevleen also made temporary repairs and completed its opilio crab season, but cut its cod fishing season short to obtain permanent repairs in Seattle.
The Big Blue's insurers filed suit against the Kevleen in federal court, alleging the collision was caused by the latter's negligence. The Big Blue and its owners and crew intervened to recover lost profits and the cost of their insurance deductible. The Kevleen counterclaimed, alleging the Big Blue caused the collision. The district court found both vessels negligent, apportioning 85% of the fault to the Kevleen, and 15% to the Big Blue. The court awarded both vessels repair costs and loss of profits.
The Kevleen contends the district court erred in refusing to find that the Big Blue violated COLREGS Rule 7 as a matter of law because its lookout failed to plot the Kevleen's course on radar. This court reviews an admiralty court's conclusions of law de novo. See Havens v. F/T Polar Mist, 996 F.2d 215, 217 (9th Cir.1993).
Rule 7 provides, in pertinent part:
(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
(b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.
33 U.S.C. foll. § 1602, Rule 7.
The question is what constitutes "proper use" of radar under Rule 7. The Kevleen argues Rule 7(b) always requires vessels with radar plotting capability to make use of it to avoid collisions, but the language of Rule 7(b) does not support this bright line rule. Rule 7(b) specifies that proper use of radar includes radar plotting or equivalent observation. The collision avoidance concerns underlying Rule 7(b) do not warrant a rigid radar plotting requirement; rather, "whether radar should be used to supplement a proper visual lookout will depend on the circumstances and the adequacy of the lookout." Farwell's Rules of the Nautical Road 240 (Captain Richard A. Smith, ed., 7th ed.1994). Relying on radar plotting to identify and avoid risk of collision could itself be negligent when the equipment yields confusing results. See Pocahontas Steamship Co. v. The Esso Aruba, 94 F.Supp. 486, 490 (D.Mass.1950).
The Second Circuit has therefore rejected the argument that Rule 7(b) always requires use of available radar plotting or electronic collision avoidance equipment. See Ching Sheng Fishery Co. v. United States, 124 F.3d 152, 160 (2d Cir.1997)( that "although it has been held that failure to effectively use radar is a statutory violation, there is no support for the broader proposition that only radar plotting or use of a computer-aided collision avoidance system satisfies COLREG 7") (citation omitted). We also decline to hold Rule 7(b) categorically requires a ship with radar plotting capability to use it, and instead examine whether, under the circumstances, the use of radar was "equivalent to" or as effective as radar plotting.
Courts generally determine whether a particular method of radar observation is equivalent to radar plotting by comparing the information provided by the method with that provided by radar plotting. The Fourth Circuit has found a Rule 7 violation where a lookout employed a method of radar observation that provided only the closest point of approach, reasoning that radar plotting would also have provided the course, speed, and relative motion of the approaching vessel. See Hellenic Lines, Ltd. v. Prudential Lines, Inc., 730 F.2d 159, 163 (4th Cir.1984). Similarly, district courts have found Rule 7 violations where available radar was used only to determine a vessel's closest point of approach, see G & G Shipping Co., Ltd. v. M/V Nedlloyd Van Noort, 767 F.Supp. 398, 409 (D.P.R.1991), where a lookout used radar to plot an approaching vessel's course incompletely, see Potomac Transp., Inc. v. OMI Corp., 741 F.Supp. 395, 403 (S.D.N.Y.1989), aff'd in part, vacated in part on other grounds, 909 F.2d 42 (2d Cir.1990), and where personnel failed to use sophisticated radar equipment effectively to track the approach of an oncoming vessel, see Ocean Foods Boat Co. v. M/V Tosca, 692 F.Supp. 1253, 1262-63 (D.Or.1988).
These cases are distinguishable. Although Thissen did not know how to plot on the Big Blue's radar, he was able to track the Kevleen's approach accurately by observing his radar and taking visual bearings. According to Thissen's radar and visual observations, the Kevleen had a constant bearing of 0-3 degrees off his heading, making it clear that the Kevleen's heading was essentially reciprocal to his own, and that a collision was imminent. Radar plotting would not have yielded additional, relevant information about the Big Blue's approach.
This is not to suggest that in all head-on situations, taking visual bearings and tracking a vessel's approach on radar without plotting will satisfy Rule 7(b). Had the Kevleen's course been more erratic, or a full point off the Big Blue's heading, radar plotting might have been required to gauge the risk of collision more accurately. In this case, however, the Kevleen had a constant bearing within a few degrees of the...
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