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DMC/SandT/06/17
Crowley Marine Services Inc. v. Maritrans Operating Company LP
United States Court of Appeals for the Ninth Circuit, opinion by Hon. M.
Margaret McKeown, Docket No. 04-35724, 2006 U.S. App. LEXIS 11368 (9th Cir. May
8, 2006)
COLLISION REGULATIONS: SPECIAL CIRCUMSTANCES UNDER RULE 2(B): WHETHER OPERATING
IN CONCERT IN ACCORDANCE WITH AGREED MANEUVRES CONSTITUTES SPECIAL CIRCUMSTANCES
Summary
The United States Court of Appeals for the Ninth Circuit ruled that agreed
maneuvers between two vessels do not constitute a special circumstance excusing
violation of the International Regulations for Preventing Collisions at Sea,
1989 ("COLREGS")
DMC Category Rating: Confirmed
This case note is contributed by attorney Alan M. Weigel of the
firm of Healy & Baillie, LLP of New
York. Healy & Baillie are the international contributors to the website for
the United States
Facts
The plaintiff provided two escort tugs for the defendant oil tanker owner in
the Puget Sound. The tanker and two tugs agreed that, as the tanker transited
the Strait of Juan de Fuca, the tanker was to overtake the tugs, while all three
vessels maintained the same course. One of the tugs deviated from the agreed
course. The master of the tanker radioed the master of the deviating tug to
inquire as to its status and the tug confirmed that everything was OK, but the
tanker did not otherwise alter course or speed. A collision ensued. The district
court for the Western District of Washington apportioned fault as 75 percent to
the tug and 25 percent to the tanker, finding that even though the overtaking
tanker collided with the tug being overtaken, because the two vessels were
operating in concert according to agreed maneuvers, the situation presented
"special circumstances" that provided an exception to the COLREGS
pursuant to Rule 2(b) of the COLREGS.
Rule 2(b) provides:
(b) In 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.
In the absence of "special circumstances", the
Overtaking Rule, Rule 13, provides that any
vessel overtaking any other shall keep out of the way of
the vessel being overtaken.
Judgment
The Ninth Circuit Court of Appeals held that the plain language of Rule 2
precluded a broad exception for "generic special circumstances" such
as "vessels operating in concert and pursuant to agreed maneuvers."
The Court held that a vessel perceiving a risk of collision is not released from
the COLREG’s requirement to take precautionary measures simply because it is
engaged in a predetermined maneuver. Instead, the Court held that Rule 2 only
justified a departure from the COLREGS in order to "avoid immediate
danger."
The Court found that the evidence established that the tanker
had violated COLREGS Rule 8, requiring vessels to take action to prevent a
collision, and COLREGS Rule 13, requiring overtaking vessels to keep out of the
way of the vessel being overtaken. The Court held that those Rules should have
been considered in the allocation of liability. The Court noted that assessment
of the blameworthiness of each party’s conduct leading to a determination of
comparative fault ultimately depends not only on the Rules that each party
violated but on whether those violations actually caused the collision,
considering all the facts of the case.
The Court reversed the judgment of the district court and
remanded the case to the district court to reconsider the relative liability of
the parties and instructed the district court to consider the pre-arranged
escort plan, along with all the other facts, when it apportions fault.
Comments
In holding that the special circumstances Rule did not apply to vessels
engaged in pre-arranged maneuvers, the Court declined to adopt the analysis of
several older cases cited by the district court predating the contemporary
COLREGS because those cases did not interpret Rule 2 and, in the Court’s view,
conflicted with the plain meaning of the current COLREGS. The Court suggested
that Rule 2 applies to facts where an adherence to the COLREGS would lead to an
"impending unavoidable collision" or there is "an immediate
danger, perfectly clear; and the departure from the Rules must be no more than
is necessary." Thus, the Court narrowly construed Rule 2 and declined to
employ it to excuse a violation of the plain mandate of more specific COLREGS
provisions.
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