Maritime statute not expanded to create category of special circumstances involving vessels operating in concert and pursuant to agreed maneuvers
June, 2006
By
Marilyn Raia
Crowley Marine Serv. Inc. v. Maritrans Inc.
06 C.D.O.S. 3745 (9th Cir. 2006)
Crowley Marine Services, Inc. ("Crowley") provides vessel escort and assistance services in Puget Sound. Federal law requires that any tanker transiting Puget Sound east of navigational buoy R with oil cargo be escorted by two vessels. Maritrans Operating Company L.P. ("Maritrans") hired Crowley to provide escort services for the tanker Allegiance. Crowley provided two tug boats, the Sea King and the Chief.
According to the agreed-upon plan, the Allegiance would travel east towards Buoy R. While the Allegiance was still two to three miles away, the two tugs would depart from Buoy R. The Allegiance would gradually overtake the two tugs and pass between them, at which point the tugs would take up position on either side of the tanker to complete the escort maneuver, with the Chief tethered to the stern and the Sea King on the tanker's port shoulder.
Each of the three vessels sailed with auto-pilot set to 58 degrees true, with the Allegiance gradually overtaking the tug boats. During this time both the Allegiance and the Chief made numerous adjustments to account for the fact that the vessel's auto-pilot function maintains a ship's heading but does not reflect changes due to wind or currents. The Sea King made no comparable adjustments to its course. While the Sea King was still a short distance ahead, the pilot and helmsman aboard the Allegiance realized that the tug was also closing the lateral distance between the vessels. As the Sea King came closer, the Captain aboard the Allegiance decided that the vessels' proximity exceeded his comfort zone. Although later testifying that he did not see any risk of collision, the captain of the Allegiance radioed the Sea King, inquiring of the captain, "Don, are you ok?" The Sea King's captain responded affirmatively.
Shortly after the radio communication, the Allegiance and the Sea King collided, causing more than $2 million in damages. The exact dynamics of the collision were disputed. Crowley presented expert testimony that the two vessels gradually converged until the Allegiance struck the Sea King almost directly from behind. Maritrans presented testimony that the Sea King veered suddenly to starboard, into the path of the Allegiance.
At trial, each side attributed fault entirely to the other, relying in large part on alleged violations of the International Regulations for Preventing Collisions at Sea, or COLREGS. These rules apply to "all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels." Rule 1(a).
Crowley argued that Maritrans violated multiple COLREGS, including Rules 8 and 13, which govern a ship's obligation to avoid a collision while overtaking another vessel. Maritrans argued that Rules 8 and 13 should not apply because Maritrans fit within the special circumstances exception set forth in Rule 2, emphasizing that no court has applied the overtaking rule to vessels that were operating in concert pursuant to maneuvers conducted under an agreed-upon plan.
Rule2(b) provides that "[i]n construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these rules necessary to avoid immediate danger." The question was whether such special circumstances are limited to those involving immediate danger, or include circumstances that are "special" in a more generic sense. The District Court found, (and Maritrans argued on appeal) that courts have either expanded the scope of Rule 2(b)'s special circumstances or have created a wholly separate category of special circumstances involving vessels operating in concert and pursuant to agreed maneuvers. The District Court apportioned fault 75% to Crowley and 25% to Maritrans. Crowley appealed. In what it characterized as a "matter of first impression," the Ninth Circuit disagreed with the District Court.
The Ninth Circuit began its analysis with the plain language of the statute. By the terms of Rule 2, special circumstances are limited to circumstances "which may make departure…necessary to avoid immediate danger." Thus, vessels may justify departure from the COLREGS in order to avoid immediate danger, but not for more generic special circumstances. As written, the COLREGS reflect numerous policy judgments that are not vitiated by agreed cooperation between two vessels and such cooperation does not change the meaning of Rule 2 limiting it to situations in which there is immediate danger.
The Ninth Circuit further noted that the decision did not determine the ultimate allocation of liability in the case. Despite construction of the COLREGS in accordance with their plain meaning, including the special circumstances exception, the assignment of liability is not absolute. The blameworthiness of each party's conduct would ultimately depend not only on the rules that each party violated but also on whether those violations actually caused the collision. The flexibility and adaptability of the apportionment concept helped explain why the Ninth Circuit was unswayed by the collection of policy arguments offered by Maritrans.
The Ninth Circuit remanded the case to the District Court for a redetermination of the percentage of fault to be allocated to the parties in light of its opinion.