Ishizaki Kisen Co., Ltd. v. U.S.

• Decision Date: 03 February 1975
• Docket Number: Nos. 73--1248,73--1249,s. 73--1248
• Citation: 510 F.2d 875
• Parties: ISHIZAKI KISEN COMPANY, LTD., Appellant, v. UNITED STATES of America, Appellee. ISHIZAKI KISEN COMPANY, LTD., Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 875

510 F.2d 875

ISHIZAKI KISEN COMPANY, LTD., Appellant, v. UNITED STATES of America, Appellee.

ISHIZAKI KISEN COMPANY, LTD., Appellee, v. UNITED STATES of America, Appellant.

Nos. 73--1248, 73--1249.

United States Court of Appeals, Ninth Circuit.

Feb. 3, 1975.

Graydon S. Staring, Lillick, McHose, Wheat, Adams & Charles, San Francisco, Cal., for appellant.

William E. Gwatkin, III, San Francisco, Cal., for appellee and cross-appellee.

Before KOELSCH and SNEED, Circuit Judges, and FIRTH, ^* District Judge.

OPINION

SNEED, Circuit Judge:

This admiralty case is the result of a collision between two vessels in the harbor at Kure, Japan. It raises a question concerning the application of the presumption of fault rule announced in The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), to collisions in foreign waters. Jurisdiction rests on 28 U.S.C. § 1292(b), 28 U.S.C. § 1333, and The Public Vessels Act, 46 U.S.C. § 781 et seq.

The vessels involved are the Kinsei-Go, a Japanese vessel owned and operated by Ishizaki Kisen Co., Ltd., and Army Vessel J--3793, owned by the United States and operated by the Department of the Army. The Kinsei-Go is a hydrofoil-type vessel of 63.75 gross tons which is regularly engaged in passenger service between the cities of Hiroshima, Kure, and Matsuyama. The J--3793 is a vessel of about 39 gross tons which is operated by the Army as personnel and cargo carrier in Kure harbor.

On the morning of December 21, 1967, in clear weather, both vessels were operating in their regular capacities on the waters of Kure harbor. The J--3793 was making a speed of 13 knots when her master first sighted the Kinsei-Go on his vessel's port bow, on a crossing course, at a distance of 1450 meters. The Kinsei-Go was making a speed of 31 1/2 knots when her captain first sighted the J--3793 on his vessel's starboard bow, on a crossing course, at a distance of 800 meters. The J--3793 maintained her course and speed until she was at a distance of approximately 100 meters from the Kinsei-Go. At this point the master of the J--3793 reversed the engines from ahead to full astern. Immediately thereafter he sounded three short blasts on the ship's whistle to properly indicate that the engines were then full astern. The Kinsei-Go maintained her course and speed until she reached a point approximately 50 meters from the J--3793. At this point the captain of the Kinsei-Go ordered her engines stopped and the rudder put hard left.

Because of the slow turning reaction of the Kinsei-Go and her speed at the time her engine was ordered stopped, the Kinsei-Go continued to ride on her hydrofoils as she passed the stem of the J--3793 which had by then come to a complete stop with her engine control in the neutral position. A collision resulted when the rear starboard hydrofoil of the Kinsei-Go made contact with the port bow of the J--3793.

The owners of the Kinsei-Go filed this action for damages and the United States counter-claimed. The case was tried in admiralty solely on the issue of liability. The district court, applying Japanese law, held both vessels at fault and, pursuant to the International Convention with Respect to Collisions, 1910, to which Japan is a signatory but the United States is not, apportioned the fault and liability 3/4 to the Kinsei-Go and 1/4 to the J--3793. ¹ An Interlocutory Judgment was entered and this appeal and cross-appeal followed. We affirm.

The United States appeals the apportionment of 1/4 of the fault to the J--3793. This question will be treated below. The principal controversy is the apportionment of 3/4 of the fault to the Kinsei-Go. Under Rule 19 of the International Rules of the Road ² (Regulations for Preventing Collisions at Sea, 1960) the Kinsei-Go, having the J--3793 on her starboard side was required to give way and failed to do so. However, this rule is modified by Japan Port Regulation 18--1 which states that 'Miscellaneous Vessels must give way to vessels other than Miscellaneous Vessels in harbors.' The Kinsei-Go is not a Miscellaneous Vessel and therefore, if the J--3793 were a Miscellaneous Vessel, the J--3793 rather than the Kinsei-Go would be the vessel required to give way. The trial court found that the J--3793 was not a Miscellaneous Vessel ³ and this finding is not really in dispute. The dispute centers on the fact that the J--3793 was not flying her international call sign as required by Article 30.1 of the Japanese Port Regulations Law. ⁴ This call sign is required to be flown by all vessels transiting Kure harbor which are not Miscellaneous Vessels. The argument is therefore raised that the failure of the J--3793 to fly this call sign contributed to a mistaken belief of the captain of the Kinsei-Go that the J--3793 was a Miscellaneous Vessel which was required to give way. The trial court made the following Findings of Fact which rebut such an argument:

22. At the time the J--3793 came into view of the Kinsei-Go, the J--3793 was not flying her international call sign as required by Article 30.1 of the Japan Port Regulations Law. However, there was no evidence presented in this case which would support a conclusion that this failure to fly an international call sign affected the judgment of the captain of the Kinsei-Go in any way as to whether or not the J--3793 was or was not a miscellaneous vessel.

23. The failure of the J--3793 to fly her international call sign did not contribute in any way to the collision between the J--3793 and the Kinsei-Go.

These findings are not clearly erroneous and we will not disturb them on appeal. However, it is necessary to examine the method by which these findings were made. The trial court placed the burden on the plaintiff to prove that the violation of port rules by the J--3793 had contributed to the collision. The plaintiff failed to meet this burden but contends that no such burden should have been placed upon it and that under the Pennsylvania Rule the burden should have been placed on the United States to show that the failure to fly the international call sign could not have been the cause of the collision. The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874). The failure to meet this burden assert the plaintiffs, would require the apportionment to the J--3793 of greater than 1/4 fault and liability. The United States asserts that the Pennsylvania Rule is not applicable to the facts of this case.

I. The Pennsylvania Rule

There is no doubt that a collision in foreign territorial waters is governed by the law of the place of collision. Western Union Co. v. Brown,234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 803 (1914); Slater v. Mexican Nat'l R.R., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900 (1904); Smith v. Condry, 1 How. 28, 11 L.Ed. 35 (1843). This jurisdiction usually 'has the most significant relationship to the occurrence and the parties.' ⁵ The parties recognize this and have devoted much time in an attempt to determine the meaning of Article 6 of the International Convention with Respect to Collisions, 1910, which Japan has signed and which abolishes 'legal presumptions of fault.' Both parties then frame the issue as whether or not this Convention abolishes the Pennsylvania Rule. This Rule stated more fully is as follows:

The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case 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. Such a rule is necessary to enforce obedience to the mandate of the statute. The Pennsylvania, supra, at 135.

The parties in their briefs, although not in oral argument, overlooked the possibility that the Pennsylvania Rule is applicable either because it is a part of the procedural law of the forum or because the interests of the forum outweigh those of the place of the collision notwithstanding its possible non-existence under Japanese law.

To determine whether for either or both of these reasons the Pennsylvania Rule should be applied in this case it is necessary to examine the principal purposes of the Rule. There are two such purposes. The first is that it is designed to 'enforce obedience to the mandate of the (safety) statute' violated. The Pennsylvania at 135. This is accomplished by imposing a burden on the violator that 'is frequently extremely difficult, if not impossible, . . . to discharge.' The Princess Sophia, 61 F.2d 339, 347 (9th Cir. 1932). Obedience, it is reasoned, will be considered by most as preferable to an impossible obstacle to exculpation. In all events, greater attention to such statutes by ship operators will result. The second is that the operation of the Rule simplifies the adjudication of collision cases when applied in conjunction with a system of admiralty law, such as is presently followed by the courts of the United States, ⁶ in which there is an equal division of property damages when both vessels are at fault.

Neither of these purposes in our view is sufficiently compelling to require the application of the Pennsylvania Rule to these facts. Neither party suggests that the equal division of property damages presently required under American admiralty law is applicable to this case. All assume quite properly that the comparative fault system of Japanese law applies. To utilize the Pennsylvania Rule in conjunction with the Japanese system does nothing to simplify adjudication and, because of the difficulty in comparing the failure to discharge a frequently impossible burden with the fault of a different character of the other party to a collision, may frustrate the ends of the Japanese system by...