Maritime Mercantile International L.L.C. v. U.S.

Full title: MARITIME MERCANTILE INTERNATIONAL L.L.C., INCHCAPE SHIPPING SERVICES…

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

Date published: Feb 28, 2007

Case No. 02-CV-1446 (KMK) (S.D.N.Y. Feb. 28, 2007)

Opinion

Case No. 02-CV-1446 (KMK).

February 28, 2007

Francis M. O'Regan, Esq. Richard W. Stone, II, Esq. Claurisse C. Orozco, Esq. Waesche, Sheinbaum O'Regan, P.C. New York, N.Y., Counsel for Plaintiffs.

Peter F. Frost, Esq. Senior Admiralty Counsel Matthew J. Glomb, Esq. Trial Attorney, Torts Branch, Civil Division U.S. Department of Justice Washington, D.C., Counsel for Defendant.

OPINION AND ORDER

KENNETH KARAS, District Judge

On February 27, 2000, at approximately 1032 hours, in the fog off the coast of Dubai, United Arab Emirates, the USNS YUKON, a U.S. Navy refueling tanker, collided with the crewboat INCHCAPE 14. Although the INCHCAPE 14 did not completely sink, she was partially submerged before she was rescued and repaired at a cost of over one million dollars. Fortunately, nobody was killed or seriously injured. What resulted, however, was this lawsuit, where each Party blames the other for the collision. The action was tried to the Court, and upon the following findings and conclusions, the Court will enter judgment based on the determination that the INCHCAPE 14 is 75% liable, and the USNS YUKON is 25% liable for the damages suffered as a result of the collision.

I. Background

A. Stipulated Facts

On the morning of February 27, 2000, the outbound crewboat the INCHCAPE 14 and the inbound auxiliary oiler USNS YUKON (the "YUKON") collided under a fog in the channel leading to the Port of Jebel Ali ("the Port" or "Jebel Ali"), located in Dubai, United Arab Emirates, between buoys 11 and 12. The air temperature was 69°F, the winds were light, i.e., less than 5 mph, and the current was between 0.35 and 0.30 knots setting in a direction of 329° true. As a result of the collision, the INCHCAPE 14 partially sank, and was thereafter raised and brought to a position of safety by salvors in order to effect repairs. The YUKON sustained minimal paint-scrape damage.

At the time of the collision, Plaintiff Maritime Mercantile International L.L.C. ("MMI") was a legal entity duly organized and existing under and by virtue of the laws of Dubai, U.A.E. and was the registered owner of the INCHCAPE 14. Plaintiff Inchcape Shipping Services ("ISS") was a branch of MMI and was the operator of the INCHCAPE 14. Plaintiff Inchcape Shipping Services (Dubai) L.L.C. is a legal entity duly organized and existing under and by virtue of the laws of Dubai, U.A.E., and is the successor to ISS and the current owner of the INCHCAPE 14. Plaintiff Qatar Insurance Company is a legal entity duly organized and existing under and by virtue of the laws of the State of Qatar. Qatar Insurance Co. insured the INCHCAPE 14 under a policy of marine hull and machinery insurance, and it paid $1,333,042.46 for damages sustained to the INCHCAPE 14. Plaintiffs claim total damages resulting from the collision in the amount of $1,737,137.46.

The INCHCAPE 14 was built in 1980 and is a crewboat with an all-aluminum hull. The vessel measures 130 feet in length, 26 feet in width, with a molded depth of 11.5 feet, and a gross registered tonnage of 216. She has four engines and four propellers. At the time of the collision, her draft was 6.3 feet. Her top speed is 18 knots.

Military Sealift Command ("MSC") operates the YUKON for the United States Government. The YUKON was and still is a public vessel of the United States. Its designation is "USNS YUKON T-AO 202." "T" designates "Military Sealift Command," indicating that the vessel is operated by MSC; "AO" stands for "auxiliary oiler." The YUKON is of steel construction, it measures 677.5 feet in length, 97.5 feet in width, has gross tonnage of 20,706, and was built in 1993. She has two engines and two variable pitch propellers. At the time of the collision, her draft was 34 feet 5 inches forward and 34 feet 8 inches aft. Her top speed is 22 knots.

The navigation of the vessels in the channel was governed by the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972 ("COLREGS" or "Rules of the Road"), 28 U.S.T. 3459 (codified at 33 U.S.C. foll. § 1602).

B. Findings of Fact

The Court heard testimony from five witnesses. For Plaintiffs, Captain Frederick F. Burgess, Jr. testified as Plaintiffs' maritime expert and Christopher M. Whiteside testified to damages.¹ Defendant's witnesses included Captain Mark J. Wilson, Cargo Mate Andrew Davis, and Captain Eugene Hickey.² Based on the testimony of these witnesses, and the numerous exhibits received at trial, the Court makes the following findings.

1 Captain J.P. Unnikrshnan, who operated the INCHCAPE 14, did not testify, but the Court has carefully reviewed his deposition, as well as the deposition testimony of Matthew Kurian, Third Officer Michael T. Peroha, Second Officer Daniel L. Talcott, Chief Officer Richard A. Satter, and Third Officer L.B. Eugene Phillips, III. All but Kurian served on the YUKON at the time of the collision. Kurian was a witness for Plaintiffs.

2 Captain Wilson and Cargo Mate Davis were aboard the YUKON on the day of the collision. Captain Burgess, who was not aboard the YUKON that day, testified as Defendant's maritime expert in the trial.

Jebel Ali Port

Its entrance marked by a single fairway buoy, the channel leading to Jebel Ali begins 12 kilometers (7.45 miles) offshore. The length of the channel is lined on both sides by numbered buoys, starting with 5 and ending with 14 before the appearance of unnumbered breakwater buoys at the harbor's entrance. The buoys on the northeast side of the channel are red and those on the southwest side are green. From the fairway buoy, the "approach" channel runs in a direction of 134° true towards the Port for 10 kilometers (6.21 miles), bends 25° to the right, and then the "entrance" channel runs into the Port at 160° true. The approach channel is 280 meters (918 feet) wide, reducing to 235 meters (771 feet), widening in the bend to 300 meters (984 feet), and then widening again in the entrance channel to 340 meters (1116 feet).³ The channel was dredged to a depth of 15 meters (49.21 feet), but shoaling between buoys 10 and 11 reduced the channel depth in that area to 12.5 meters (41 feet). The surrounding waters, on average, are 5 to 6 meters (19.7 feet) deep. Port Control monitors and oversees vessel traffic in and out of the Port from a control tower, which is equipped with a vessel traffic system radar. Vessels do not enter, depart, or move within the harbor without clearance from Port Control. Communications between Port Control and vessels are by means of VHF radio and are recorded by Port Control.

3 Defendant's submissions to the Court as well as a demonstrative exhibit used by both Parties without objection throughout the trial assumed a channel width of 840 feet. As neither Party has provided the Court with an exact channel width at the location of the collision, the Court will adopt Defendant's figure because it roughly splits the difference between the widest and narrowest points of the approach channel and because it is a round number that was the basis of trial testimony and some briefing concerning several hypothetical scenarios discussed during trial.

The YUKON's Crew

The YUKON's master is Captain Mark Wilson, who has been the vessel's master since 1997, and has been a master since 1990. Captain Wilson has been with the Military Sealift Command since 1980, and has commanded two other tankers. He has received extensive training in radar and automatic radar plotting aids ("ARPA"), and other safety techniques and equipment. Between 1991 and February 2000, Captain Wilson had been in and out of Jebel Ali approximately thirty to forty times while commanding tankers, including the YUKON. On the bridge with Captain Wilson as the YUKON entered the Jebel Ali channel in the early hours of February 27, 2000 were Richard Satter, the Chief Mate, Daniel Talcott, the Second Officer, and two Third Officers (Michael Peroha and Eugene Phillips).

The YUKON's Radar and Other Electronic Equipment

At the time of the collision, the YUKON was equipped with VHF radio and two Raytheon radars — a 3-centimeter (X-band) radar and a 10-centimeter (S-band) radar. The vessel also was equipped with a Global Position System ("GPS"), as well as an automatic course recorder which tracks the ship's headings and records changes in heading.

The 3-centimeter radar was generally used for tracking shorter-range targets, while the 10-centimeter radar was for longer-range targets. In December 1999, just three months before the collision, both radars were reported to be in some disrepair. Specifically, an inspection of both radars revealed that "[b]oth pedestals appear[ed] to be leaking oil." The fiberglass covering the 3-centimeter radar exhibited "severe deterioration, erosion, delamination, and signs of water intrusion." Also, "the internal waveguide exhibits severe corrosion (white powdery deposits), [and] definite signs of water intrusion." The inspection further revealed that "[b]oth antennas exhibit the same deterioration, [with] the 3cm being in the worst condition." As a result, the inspection found that "[t]he random[] and waveguide condition will reduce RADAR sensitivity and thus reduce range and ability to detect small objects, especially non-metal (fiberglass craft) objects. This is further evidenced by the 2nd Mates [sic] complaints of the 3cm not having much range and unable to detect small targets." The inspection concluded that: "In short[,] they need to be replaced." Notwithstanding these problems, the YUKON's Chief Engineer determined that "we should be able to hold on until" the vessel's scheduled repair period in April 2000. Based on his review of this inspection, Captain Burgess, Plaintiffs' sole expert witness, concluded that the radars on the YUKON were not operating at "the full efficiency that was expected or should have been expected of [them]."

Defendant seeks to blunt the impact of this pre-collision inspection by claiming that the YUKON's April 2000 repair period was not related to the condition or performance of the YUKON's equipment (including the radars), but was planned for all ships on the basis of availability. Yet, this begs the question of whether the radars were operating at peak efficiency on the day of the collision, particularly given Third Officer Peroha's testimony that the 10-centimeter radar had a "noted tendency to drop or not acquire close-in targets (typically targets within .75 nautical miles or less)." The testimony of Defendant's expert, Captain Hickey, who conclusively claimed that "the YUKON's radars were fully operational" was also unpersuasive. On cross-examination he was asked whether he agreed, based on the emails regarding the December 1999 radar inspection, "that there was a problem with the radars." Captain Hickey testified as follows:

CAPT. HICKEY: Radar maintenance is beyond my scope of expertise. MR. O'REGAN: You had to consider these, didn't you, in evaluating the operating condition of the radars? CAPT. HICKEY: No, I didn't. Captain Hickey's lack of expertise on radar maintenance, however, was matched by Captain Burgess, who himself was not offered as an expert in radar maintenance, and, in fact, does not have much by way of radar expertise.⁴ Moreover, when asked to provide the basis for his conclusion that neither the 3-centimeter nor the 10-centimeter radar was working properly, Captain Burgess merely cited the emails discussing the inspection, without providing any expert analysis how the problems discovered during inspection would affect the radar's capability, or to what extent, if any.

Only slightly more persuasive was the testimony of Defendant's witnesses, who indicated that they routinely verified the operational condition and operated both radars, including just prior to arrival at Jebel Ali. Indeed, Captain Wilson, Chief Mate Sattar, and Third Mates Peroha and Phillips each testified that the radars were operational on the morning of the collision.⁵ However, the YUKON's crew was not unanimous in the view that the radar was flawless, given Officer Peroha's above-quoted testimony about the 10-centimeter radar's inconsistency. This testimony, in turn, is counterbalanced by credible testimony that the three-centimeter radar was used to track the YUKON's passage through the channel by marking the buoys. While the radar reportedly lost the buoys when the vessel passed within one-quarter mile of the buoys, this does not constitute evidence that supports Captain Burgess's assertion that the radars were not operating properly. Indeed, the emails discussing the inspection noted that the primary impact of the corrosion was the three-centimeter's "sensitivity" to small, non-metallic objects, not aluminum vessels.

5 Both Captain Wilson and Second Officer Talcott testified that none of the YUKON's officers reported problems with the radars, but this is contradicted by the inspection report, which reflects complaints about the 3-centimeter radar by "the 2nd mates."

The Court finds that the YUKON's radars were somewhat impaired by severe corrosion in their waveguides and deterioration of their antennas. While it stands to reason that such deterioration means that the YUKON's radars were not operating at peak efficiency, Plaintiffs have not offered specific evidence that the radar aboard the YUKON was so dysfunctional that it was incapable of picking up the INCHCAPE 14 while it transited the channel. Nonetheless, with its all-aluminum hull, the INCHCAPE 14 should have been a good radar target (even without a radar reflector), and yet no officer aboard the YUKON reported tracking her on radar. Thus, either Officers Peroha and Satter were inattentive in monitoring the radars or the YUKON's radars failed to detect the INCHCAPE 14 as the vessels approached each other in the channel.

The YUKON's Approach

At approximately 0753 on the morning of February 27, 2000, the YUKON approached the channel, called Port Control on VHF channel 69, and requested permission to enter the channel. Port Control advised that there was thick fog inside the Port and instructed the YUKON to wait offshore. At around 0930 hours, Port Control contacted the YUKON and granted her permission to enter the channel. The precise exchange between the YUKON and Port Control was as follows:

YUKON: Jebel Ali Port, this is Yukon, currently one mile from Fairway buoy, Inbound 13 knots. Request confirm that the channel is clear for me. Port Control: Affirmative, channel is clear for you. Keep on coming . . .

The Parties dispute the meaning of the word "clear" as it is used in this exchange between Captain Wilson and this lawsuit's absent party, the Dubai Port Control. Plaintiffs insist that Port Control meant to advise the YUKON that the channel was clear of fog, while Defendant presses its reading that the channel was clear of traffic. There was no testimony at trial from any Port Control officials, but the Court finds that Captain Wilson had good reason to believe the YUKON would be the only vessel in the channel based in his exchange with Port Control.

First, Captain Wilson testified that his prior experience in entering the channel was that vessels transited the channel one at a time. This suggests that Captain Wilson reasonably interpreted the message from Port Control to mean that there were no other vessels in the channel. Second, Plaintiffs' agent, Matthew Kurian, confirmed that the ships "come in one by one" to the channel. Third, Captain Wilson specifically asked Port Control if the channel was "clear for me," and Port Control said it was "clear for you", language that is consistent with Captain Wilson's view. Indeed, Captain Wilson periodically advised Port Control of his position as the YUKON transited inbound through the channel, and was never advised of any oncoming traffic. Fourth, the Sailing Directions for the Port of Jebel Ali note that "[v]essels may not pass in the dredged channel." Finally, it bears noting that Captain Unnikrishnan interpreted Port Control's instruction that the channel was "completely clear" to mean that there would be no other vessel traffic. In fact, relying on that statement from Port Control, Captain Unnikrishnan elected not to sound his fog horn, which suggests that Captain Unnikrishnan believed that there were no other vessels in the channel.

Captain Wilson assumed the conn at 0932 hours. At that time, the YUKON was outside the approach where it had been awaiting permission from Port Control to enter. After a two-day period of underway replenishments, the YUKON was not quite fully loaded, but she still was carrying a little over 40,000 tons of fuel. As the YUKON began her channel transit, the maneuvering detail was set for entering port. By approximately 0945 hours Captain Wilson was on the bridge. Chief Mate Satter took a position on the 3-centimeter radar. Second Officer Talcott, the navigator, was stationed at the chart table plotting the fixes using GPS, while Third Officer Peroha was stationed at the 10-centimeter radar. Third Officer Phillips, the helm safety officer, was stationed near the throttle. Cargo Mate Davis and another crew member were stationed as lookouts on the bow.

Due to the fog, Captain Wilson directed Third Officer Peroha to monitor the 10-centimeter radar to confirm the vessel's forward progress and its position relative to the buoys on each side of the channel. Peroha in fact confirmed the alignment of the channel buoys and the vessel's orientation relative to the buoyed channel. While Peroha observed and reported radar contacts outside the channel (the record is unclear how far outside) he did not detect and therefore did not report vessel traffic within the channel.

Chief Mate Satter observed the 3-centimeter radar to confirm the vessel's position relative to the buoys on each side of the channel. When the buoys dropped off the radar as the YUKON approached them, Officer Satter looked for the port-side buoys through the bridge windows and, occasionally, "as the buoys came down the port side, [he] . . . would step from the radar through the door" of the bridge wing to confirm their passage. On other occasions, he stepped away from the radar in order to check the steering compass.

Second Officer Talcott used two methods to navigate the YUKON through the channel: Every six minutes, he plotted its position on British Admiralty chart 3739 according to latitude and longitude coordinates from the ship's GPS receiver; he also monitored the YUKON's cross-track error, which is a measurement of the ship's position relative to a pre-determined track line between way points. In this case, the YUKON's track line was the centerline of the channel. He also plotted the time (to the whole minute) at which the YUKON passed each set of buoys.⁶

6 Despite the presence of sophisticated, electronic navigational aids available to the master of the YUKON, it would appear that there was still significant reliance on visual bearings. On direct examination, Captain Wilson was asked, "if you had a report from your second officer that you were 100 yards left of track but your view was that you were in the center because the buoys were equidistant, do you take any particular action?" Captain Wilson responded, "If the second mate said we were left or right of track I would take that under advisement but also primarily rely on my visual bearings out the window."

Also due to the fog, Captain Wilson posted additional lookouts outside the pilot house: one on each bridge wing, port and starboard, and another on the bow. As previously mentioned, Cargo Mate Davis was the bow lookout. So stationed, Cargo Mate Davis was positioned about 70 feet lower to the water and approximately 465 feet further forward than the officers on the bridge. Davis had two decades' worth of sea going experience, including transits in and out of Jebel Ali. Cargo Mate Davis's sole duty was to look, listen, and report contacts seen and/or heard from the bullnose.

Although Captain Wilson had periodic contact with Port Control throughout the YUKON's channel transit, there was no one on the bridge specifically assigned to monitor the VHF channels for communications between Port Control and other vessels that might have been relevant to the YUKON's transit.⁷ Captain Wilson testified that the volume on the VHF was high enough that it could be heard by everyone on the bridge. He also testified that:

7 Third Officer Peroha testified at his deposition that Captain Wilson called to inform Port Control as the YUKON passed each set of buoys. Yet, this is not reflected in the transcription of Port Control's radio traffic on the morning of the collision.

The port is very persistent. If they are trying to contact you they will call you repeatedly and then almost admonish you for not answering them on the first call. If they are trying to get ahold of you they will repeatedly call you, call you, call you, call you, and when you answer they will actually say why didn't you answer me right away? . . . I recall hearing VHF traffic but specifically what it was, it wasn't directed to me or the YUKON.

Consistent with Captain Wilson's testimony, Captain Unnikrishnan, the Master of the INCHCAPE 14, testified at his deposition that mariners do not use the VHF communications to monitor vessel traffic because of the high volume of vessels and companies that use the radio frequency. The Court finds that neither the INCHCAPE 14 nor the YUKON monitored its VHF radio for information regarding vessel traffic.

The YUKON passed the fairway buoy at 0956 hours. Visibility worsened at 0957 hours, so Captain Wilson ordered the sounding of fog signals consisting of one prolonged blast at intervals of not more than two minutes. The running lights remained illuminated at all times, but no reduction in speed was ordered. At about 1002 hours the YUKON was abeam of channel buoy 5. At buoy 6, Captain Wilson reported "very limited" visibility to Port Control. From their position in the harbor, the officials at Port Control advised Captain Wilson that they could see buoys 13 and 14 and directed the YUKON to "[k]eep on coming slowly then." But the fog that had left the Port found its way to the belly of the channel. When abeam of buoy 10, Captain Wilson again reported "very minimal limited almost nil visibility." Third Officer Phillips testified that "as we progressed in [the channel], of course, visibility dropped down to soup[,]" by which he meant "thick fog." Third Officer Peroha described the visibility as "very poor . . . [m]aybe 100 to 200 yards at most. I lean towards the 100 yards." Indeed, from the moment Third Officer Peroha went up on the bridge to assume his position, "it was very foggy. Visibility was very poor. Approximately 100 yards, 150 yards." Chief Officer Satter put the visibility at 150 to 200 feet, and noticed that the conditions got worse as the YUKON proceeded towards the Port.⁸

8 Cargo Mate Davis's descriptions of the fog were more conservative. He testified to the Court that just before the collision, visibility "was patchy. We had pretty good visibility to the half-mile range directly forward and it would be closing in at different ranges left and right." At one point during his cross-examination, Captain Wilson also testified to the Court that the visibility was "variable."

As he transited the channel, Captain Wilson had self-evident environmental and political reasons to exercise special care in maintaining control over a tanker carrying many tons of fuel in confined waters of a foreign port channel. Although Captain Wilson's navigation plan is one of the focal points of the Parties' factual and legal dispute, it can be said generally that he sought to minimize the danger of running aground by transiting the channel's centerline. To follow the centerline, Captain Wilson relied on a combination of his crew, the ship's radar and GPS receiver, and his own observations. The channel fixes, which appear on the YUKON's navigation chart (British Admiralty chart 3739) as triangles with a dot in the center of each, were plotted every six minutes by Second Officer Talcott from latitude and longitude coordinates obtained from the vessel's GPS receiver. Second Officer Talcott also recorded each position in the YUKON's GPS book. The GPS gives the ship's position (within a standard deviation of error), course and speed, and presumably informs the navigator if the vessel is on its intended track. While there is no evidence that the YUKON's GPS receiver was malfunctioning, instantaneous GPS fixes may not be accurate. In fact, when Selective Availability was applied — as it was in February 2000 — 95% of the GPS fixes are accurate only to plus or minus 45 meters, and the remaining 5% are accurate to plus or minus 100 meters. Thus, while some of the GPS fixes reflect that the YUKON was positioned to the port side of the channel, they do not by themselves demonstrate that the ship was regularly and significantly off course.⁹ Indeed, one fix plotted after the collision, places the YUKON outside the channel, which is not possible given the ship's draft.

9 On cross examination, Captain Burgess conceded this point.

To account for the standard deviation of error in instantaneous GPS fixes, the YUKON's crew monitored GPS cross-track error, which represents an average of instantaneous fixes and is more accurate than instantaneous GPS fixes. The crew also relied on the radar, using the heading flasher to track the centerline of the channel. The heading flasher is a line generated by the radar which reflects the vessel's heading. Here, the heading flasher indicated that the YUKON was tracking the centerline. Captain Wilson also relied on the visual observations of his crew to assist him in tracking the center of the channel. This involved continuous observations of the buoys as they were passed by the YUKON. Captain Wilson, Chief Mate Sattar, Navigator Talcott, and Cargo Mate Davis all testified that the YUKON generally held the centerline as she transited the channel.

Notwithstanding this evidence, the Court finds that while the YUKON's Master sought to hold the centerline, the YUKON favored the port side of the channel. First, while not precise to the foot, the GPS fixes (including those re-plotted by Plaintiffs' expert, Captain Burgess) demonstrate that the YUKON tended to the port side of the centerline. While the Court recognizes that each GPS fix may be subject to error, the fixes consistently were marked either on the centerline or to the port side of the centerline, and not to the starboard side. Second, the YUKON's course recorder reflects course corrections to bring the YUKON slightly starboard and back to the centerline soon after GPS fixes showed the vessel to be on the port side of the channel. The need to make such a correction may have been due in part to the gyro compass error of 1.4° west. This means that when the YUKON was steering 134° gyro (as she was from 1020 and 1032 hours), she was in fact heading 132.6° true. Even though Captain Wilson and the YUKON crew were aware of the gyro compass error before entering the channel, the error nonetheless would, if not corrected, cause the YUKON to favor the port side of the centerline. In fact, the YUKON's course recorder indicates, and Captain Wilson acknowledges that, before the collision, the YUKON's heading was changing to port for about one to two minutes and had swung to port about 2° when the collision occurred.¹⁰ Third, there was a 0.30 to 0.35 knot current, setting in a direction of 329° (as agreed to by the Parties), which would favor, even if marginally, a drift to the port side. Fourth, the record reflects that Chief Mate Sattar had some difficulty picking up all the buoys on radar, thus requiring him to make visual contact with the buoys, which was difficult, given the "fog and . . . [the] electronic clutter." Looking from the port side of the bridge, Chief Mate Sattar made visual sightings of the port buoys.¹¹ Given the limited visibility, this suggests that the YUKON favored the port side. Thus, while Captain Wilson intended to steer the YUKON on the centerline, as Third Officer Peroha testified, the YUKON "favored the port side of the channel," even if "not excessively."¹² Thus, the evidence supports the conclusion that the YUKON was to the port side of the centerline of the channel as she approached buoy 11. There is no evidence identifying precisely how far to the port side the YUKON was transiting, but the Court finds that the evidence is consistent with the YUKON being only slightly to the port side of the centerline, and certainly far from the outer limits of port side of the channel.

10 Captain Wilson testified that the YUKON may have been a little to port of her intended track down the centerline just before the collision, because she was positioning herself for the upcoming dogleg turn to starboard.

11 Plaintiffs assert that Chief Mate Sattar "never made visual observations of the buoys on the vessel's starboard side." (Pls.' Post-Trial Br. 11.) However, to be clear, Chief Mate Sattar testified that he never went to the starboard side of the vessel to check for buoys, because he was stationed closer to the port side of the bridge. Captain Burgess interpreted this testimony to mean that nobody on board the YUKON ever observed the starboard side buoys. (Tr. 143 ("We don't have any evidence showing they saw buoys on the starboard side. The only evidence we have is they saw the buoys on the port side.").) However, that conclusion is plainly contradicted by Captain Wilson and Cargo Mate Davis, who testified that they and others observed the buoys on both sides of the channel as the YUKON transited the channel.

12 Plaintiffs argue that Chief Officer Satter's estimate that he visually observed the buoys coming into sight from 150 to 200 feet away establishes conclusively that the YUKON was proceeding on her port side of the channel. (Pls.' Post-Trial Brief at 11.) Assuming a 840-foot-wide channel, it is true that even if Officer Satter was sighting the buoys from the far port side of the YUKON, the YUKON's starboard side would have been more than 100 feet off the centerline of the channel. However, this calculation presupposes the accuracy of Officer Satter's visual estimate, something that Plaintiffs would have difficulty substantiating given their concession that Captain Unnikrishnan's estimate that buoys 12 and 13 were only 10 to 15 feet to his starboard side was inaccurate. The Court concludes that it is not necessary to accept Officer Satter's estimate or Plaintiffs' calculation in order to find, as it does, that the YUKON favored the port side of the channel, albeit slightly. However, other than the murky guess of Officer Sattar, the Court finds that there is insufficient evidence that the YUKON was substantially to the port side of the channel. Captain Wilson had every reason to avoid either edge of the channel, and neither the GPS fixes nor the course recorder supports the notion that the YUKON was hugging the port side buoys, or even in danger of hugging the port side buoys.

The INCHCAPE 14's Departure

The INCHCAPE 14 is a crewboat that made regular runs between Jebel Ali and nearby oil fields, including Sirri oilfield which is operated by the company Total Sirri. Sirri Island, which is north of the oil field, is about fifty-one miles northwest of the Jebel Ali fairway buoy. On February 27, 2000, the INCHCAPE 14 was under contract as a supply boat operator for Total Sirri.

On February 26, 2000, Captain Unnikrishnan worked on the INCHCAPE 14 through the night, tying up at Total Sirri's berth in the Jebel Ali Port at around 0415 the morning of the collision. Less than three hours later, at around 0700 hours, he woke to a phone call from one of Total Sirri's field representatives requesting that the INCHCAPE 14 immediately sail to make an urgent run from Jebel Ali to the Sirri oilfield. When Captain Unnikrishnan informed the Total Sirri representative that visibility in the Port was poor, the Sirri representative indicated that he would call the captain back. The representative called back at approximately 0930 hours and indicated that he had contacted Port Control, which had indicated that the INCHCAPE 14 could proceed. Around 1000 hours, Captain Unnikrishnan contacted Port Control and was given permission to leave the Port.

On less than three hours of sleep, Captain Unnikrishnan prepared the INCHCAPE 14 to leave Port. He had no navigation plan other than to take what he considered his "normal route," which meant "passing through the channel up to buoy No. 10[,] [a]nd then to go out to Sirri Field."¹³ According to Captain Unnikrishnan, it was routine practice, and consistent with Port Control's instructions, for vessels of the INCHCAPE 14's size to enter and leave the channel at buoy 10.¹⁴ Captain Unnikrishnan also testified that when the INCHCAPE 14 was cleared to leave the Port, he believed there would be no traffic in the channel. As he put it, "[t]he port control will always tell me if there is a boat coming into the channel, and this day the port control did not give me any details of this vessel." This testimony, however, seems at odds with other testimony where Captain Unnikrishnan admitted that when Port Control gave him "permission to leave, they told me that there was another vessel moving, DOCKWISE, or DOCK EXPRESS, and to watch out for that vessel."¹⁵ Unfortunately, as the Parties appear to agree, Port Control neglected to advise the INCHCAPE 14 of the YUKON's inbound trip, and vice versa. While transmission of such information might have helped the YUKON, it may not have helped the INCHCAPE 14, as a post-collision inspection of the vessel revealed that only one VHF radio was turned on and was set to channel 17, not channel 69 (the channel used by Port Control).

13 Like Captain Wilson, Captain Unnikrishnan was an experienced seaman. He had sailed on a variety of vessels in the U.A.E. since about 1987, and had worked for Inchcape Shipping Services since 1997. He became Master of INCHCAPE 14 when his company bought her a few months before the collision.

14 This practice was not necessitated, however, by the INCHCAPE 14's draft. The water on both sides of the channel is more than five meters deep (15.7 feet) and the INCHCAPE 14's draft was less than two meters (6.3 feet). Thus, there was no physical need for the INCHCAPE 14 to proceed inside rather than alongside the channel. One explanation for the practice, offered by Captain Unnikrishnan, was the need to avoid the customary gathering of fishing boats and other small vessels on either side of the channel. The presence of this traffic notwithstanding, Captain Unnikrishnan did not sound his fog horn.

15 DOCK EXPRESS was moving from berth 60. Notwithstanding this information, Captain Unnikrishnan elected not to sound his fog horn.

At 1006 hours, the INCHCAPE 14 belatedly began its urgent journey. Captain Unnikrishnan testified that because of the fog, he took two special precautions in maneuvering out of the channel. First, he turned on the running light before departure. Second, Captain Unnikrishnan called one extra person on the bridge to serve as an additional lookout. As previously noted, however, Captain Unnikrishnan did not sound his fog horn, nor did he have crew member outside of the wheelhouse to serve as a lookout by hearing. Also, Captain Unnikrishnan did not have any other communications with Port Control over VHF channel 69.

As noted, Captain Unnikrishnan's plan was to sail the channel until buoy 10 (two buoys past the collision point), and then depart the channel to Sirri Island. This is a curious route as Captain Unnikrishnan acknowledged that the course from the entrance to Jebel Ali to the Sirri oilfield was 335° true. However, the channel, well before buoy 10, sets a course to 314°. Making this an even more curious "plan" was Captain Unnikrishnan's admission that the water depth outside the channel was five meters (15.7 feet) and that the INCHCAPE 14 drew only two meters (6.3 feet). Thus, the INCHCAPE 14's draft did not require that it proceed in the channel at all. When pressed on this point at his deposition, Captain Unnikrishnan testified that he was required by local rules to remain in the channel until buoy 10 because of fishing boats. Yet, Plaintiffs provided no evidence of any local rule that substantiated this claim. Indeed, Captain Burgess, Plaintiffs' sole expert, admitted that he could find no set of rules that required Captain Unnikrishnan to stay in the channel only until buoy 10. It is unclear why Captain Unnikrishnan would follow a less direct course to get to his destination, particularly in light of the evidence that he was told that his trip was urgent. It is equally unclear, however, why Captain Unnikrishnan could not have hugged the buoys to his port side, instead, as he did, to his starboard side. What is clear is that given her shallow draft, the INCHCAPE 14 was at least capable of sailing outside of the channel, while the YUKON was not.

The Collision

When we last left the YUKON, she was approaching buoy 10 at approximately 1026 hours.¹⁶ Plotted fixes on the navigation chart establish that the YUKON's average speed from 1000 to 1024 hours was approximately 11 to 12 knots. This is full ahead at about 50% throttle. Control of the YUKON's rudder becomes unreliable at 6.5 knots in deep water. As Captains Wilson and Hickey testified, the YUKON needed a "safety margin" to ensure her maneuverability and, therefore, could not prudently proceed below a bare steerageway speed of 8 knots.¹⁷ Thus, the bare steerage speed for the YUKON was approximately 8 knots.¹⁸

16 As the YUKON sailed closer to the port, the buoys increased in number. Naturally, the buoys decreased in number as the INCHCAPE 14 sailed away from the port.

17 Defendant stipulated at trial that as the YUKON entered the Port and maneuvered in the harbor, between 1042 and 1054 hours, it proceeded at 5 to 6 knots. The Court does not take this as proof of the YUKON's ability to maneuver safely at under 8 knots, as the ship traveled at this speed for a relatively short time and under constraining circumstances. Moreover, the YUKON's Master knew that at least one assist tug was en route to aid the INCHCAPE 14.

18 Bare steerageway is the speed needed to maintain positive control over the YUKON. Captain Wilson testified that 8 knots was the minimum for safe steerage based on his experience and deepwater maneuvering studies. The deepwater study showed that a speed of at least 6.5 knots was needed for positive control of the YUKON. However, Captain Wilson estimated that he needed at least 8 knots in a channel with a lighter draft, like that at Jebel Ali, where the YUKON is considerably less maneuverable, particularly when she is carrying a significant quantity of fuel. The Court accepts Captain Wilson's testimony on this point.

At 10:25:35 hours, the YUKON's throttle was reduced to 40%. At 40% throttle, the YUKON would normally sail at about 8 knots through the water, but, of course, she would not immediately slow to that speed having traveled at 11 to 12 knots. Captain Wilson initially testified that he reduced throttle to account for the decreased visibility from the fog. Yet, Captain Wilson admitted on cross-examination that he reduced throttle at almost precisely the point where the YUKON passed buoy 10. This, the Court finds, was no coincidence as the navigation chart on the YUKON contains an explicit instruction (in unidentified handwriting) to slow to 40% because the channel is shallower between buoys 10 and 11.¹⁹ Thus, contrary to Captain Wilson's direct testimony, the YUKON reduced to 40% throttle, not to adjust to the increasingly poor visibility, but to sail through shallower waters.

19 The YUKON's crew obtained this information from a local pilot approximately a month or two before the collision.

Defendant cites the reduction to 40% throttle as proof that the YUKON was traveling at 8 knots at about the time of the collision. Indeed, Chief Mate Satter claimed that he observed, at some point before the collision, the YUKON's Doppler, which displayed an instantaneous digital read-out of the ship's speed through the water, and it indicated a speed of 8 knots. This testimony, while not given in the presence of the Court, is somewhat suspect as Chief Mate Sattar was not specific as to when he last saw the Doppler before the collision, and appeared to base his estimate on the 40% throttle at which the YUKON was traveling through the channel when it collided with INCHCAPE 14. It is also somewhat suspect given that it is the precise speed that Defendant claims is the bare minimum for safe steerage. Moreover, as noted, a reduction to 40% throttle would not immediately reduce the YUKON's speed to 8 knots given her previous speed of 11 to 12 knots. Thus, even with the reduction to 40% throttle, the Court finds that the YUKON was traveling somewhere between 8 and 11 knots, as the YUKON could not immediately slow to 8 knots having traveled at a speed of 11 to 12 knots in the earlier transit through the channel. Where between 8 and 11 knots the YUKON was traveling at the time she first made visual contact with the INCHCAPE 14 cannot be said for certain. Plaintiffs' estimate, based on the approximate distance the YUKON covered between 1000 and 1032 hours, that her speed was closer to 11 than to 8 knots.²⁰ The Court agrees.

20 There was a battle of estimates at trial, all based on calculating speed by noting the distance covered in a certain time. However, these estimates all suffered from the difficulty in pinpointing the precise distance covered in the time used to calculate speed. It bears noting, however, that even Captain Hickey's estimate puts the YUKON's average speed over the ground at 9.37 knots between 1030 and 1032.5 hours, the latter being when he fixes the collision. If the earlier and accurate collision time is used (1032 hours), the average speed calculation would be over 11 knots.
These estimates also, to some extent, compare apples to oranges. The Doppler readout that Chief Mate Sattar claims to have observed before the collision measures speed through the water, while Captain Hickey's estimate measured speed over the ground. The latter is calculated by combining the speed through the water with the current and other factors. For example, assuming all other factors are neutral, a speed through the water of 10 knots, combined with a current of 1 knot in the opposite direction, results in a speed over the ground of 9 knots. See Ivar Dedekan, ILLUSTRATED NAVIGATION: TRADITIONAL NAVIGATION, ELECTRONIC NAVIGATION, CELESTIAL NAVIGATION 15 (2004). Here, the current was not that significant, but it was generally in the opposite direction of the YUKON (and roughly in the same direction of the INCHCAPE 14). Thus, the YUKON's speed over the ground was slightly less than its speed through the water.

At about 1028 hours, the YUKON advised Port Control that the vessel was abeam buoy 10 and that there was "[o]nce again very minimal limited almost nil visibility." At some point before the collision, Cargo Mate Davis, who was posted as a lookout on the bow, twice reported groans of boat engines to the bridge. Although he never saw the first boat, he heard it from half a point (six degrees) on the YUKON's port bow and determined that it had a left bearing drift, meaning that the sounds indicated that the boats were off the port side and heading in the opposite direction of the YUKON. He reported the contact to Captain Wilson and the boat drifted passed the YUKON's port side without incident. Several minutes went by before Cargo Mate Davis heard the sounds of another small boat engine, again half a point to port. When he reported the sound to the bridge, Captain Wilson replied, "Low groan. Let's hope it remains that way." This report occurred just two to two and one-half minutes before collision. As with the first low groan, Captain Wilson understood, at the time, that the engine sound could have been coming from another vessel inside the channel.²¹ Captain Wilson, however, had not received any reports of vessels inside the channel from the officers on the radars.²² Therefore, the YUKON did not reduce her speed or change her heading in response to either of Cargo Mate Davis's reports.

21 In light of the limited visibility and the YUKON's position near the center of the channel, Cargo Mate Davis similarly was unable to rule out the possibility that the low engine groan — coming as it did from more than half a mile ahead and half a point off the starboard bow — could have been the sound of another vessel in the channel. At trial, Officer Davis disputed the idea that this small boat was in the channel because he could see the port side buoys as the YUKON passed them but never saw another vessel.

22 According to Officer Phillips, who could hear communications on the bridge from his position by the engine throttles, neither Officer Satter nor Officer Peroha ever reported to Captain Wilson seeing any vessel contacts on their radars. Captain Wilson testified to receiving a report of a contact located outside the channel, but he did not specify from whom or when in connection with the collision he heard this report. Officer Peroha claims to have reported contacts outside the channel, but he too was not specific about the number of such contacts, or how they were tracked, let alone how close to the collision these contacts were reported.

As the YUKON was traveling inbound past buoys 10 and 11, the INCHCAPE 14 made her way outbound towards buoy 10. Captain Unnikrishnan was stationed inside the wheelhouse on the bridge, where he both navigated the vessel and served as lookout. When visibility worsened between buoys 14 and 13, the Captain called the Chief Engineer up from the helm to serve as a lookout on the port side of the bridge, while the Captain stayed to the starboard side.

The distance from the wheelhouse windows to the INCHCAPE 14's bow is about ten to twelve feet. The wheelhouse windows, by design, cannot be opened. Owing to the fog, the door to the wheelhouse was kept closed to keep the moist air from getting inside and further reducing the visibility. Because the wheelhouse windows and door were closed against the moist air, the crew members on the bridge could not have heard the YUKON's fog signals. Put another way, the INCHCAPE 14 had no lookout by hearing or sight on the bow.

Captain Unnikrishnan navigated the INCHCAPE 14's course through the channel without making plot fixes or regularly checking the GPS readouts. The Captain testified at his deposition that "[w]e could clearly see the buoys, and we followed the buoy, buoy by buoy, so there's no need to plot the fixes." When he lost sight of the beacons ahead of him, Captain Unnikrishnan claims to have used the radar to maintain the INCHCAPE 14's position. The radar was set to a six nautical mile scale. As Captain Unnikrishnan described his responsibilities, "I was watching the radar. I was lookout, and I was navigating, telling the seaman who was steering which course to take." In sum, as the INCHCAPE 14 proceeded by hopping from buoy to buoy on her starboard side, her crew plotted no fixes, did not have a lookout by hearing or by sight on her bow, and Captain Unnikrishnan was sharing the role of lookout with the INCHCAPE 14's Chief Engineer while also navigating the vessel and monitoring the radar.

As he approached buoy 12, Captain Unnikrishnan claims he saw a contact on the radar. The Captain admitted that the contact he observed was, in fact, the YUKON, and that she was ahead of the INCHCAPE 14. In response to observing the contact, Captain Unnikrishnan also testified that he reduced the INCHCAPE 14's speed to about 6 knots, and steered her "only very slightly starboard, just slightly to the side just to see the ship's position."²³ However, Captain Unnikrishnan did not indicate if he tracked the position, course, or speed of the YUKON, or where, in fact, within the channel the YUKON was or how far she was from the INCHCAPE 14. Moreover, Captain Unnikrishnan was unable to mark on a chart where the INCHCAPE 14 was when he claims to have first observed the YUKON on his radar, though he purported to remember it was somewhere between buoys 13 and 12. Furthermore, Captain Unnikrishnan was unable to say how much time passed between this radar contact and when he visually observed the YUKON. However, Captain Unnikrishnan conceded that he never switched his radar view down from the six-mile scale, even after he claims to have spotted the YUKON. The Court accepts Captain Hickey's testimony that Captain Unnikrishnan's failure to switch his radar to, for example, the half-mile scale, prevented him from identifying the location of the YUKON relative to the INCHCAPE 14, and prevented him from making a collision-avoiding turn to the starboard.

23 As with estimates of the INCHCAPE 14's speed, there is nothing in the record that can confirm estimates of the INCHCAPE 14's relative position and course in the channel. According to Captain Unnikrishnan's estimates, the INCHCAPE 14 passed buoys 13 and 12 about ten to fifteen feet off her starboard beam. While also maintaining that the INCHCAPE 14 proceeded outbound in the channel "well over on her starboard side," Plaintiffs concede that Captain Unnikrishnan's estimates cannot be correct. (Pls.' Post-Trial Br. at 21 n. 3.)

Also, not surprisingly, there is a dispute about the speed at which the INCHCAPE 14 was traveling. Captain Unnikrishnan testified that in good weather, he normally completes the fifty one-mile trip in-between three and four hours. This equates to an average speed of 13 to 17 knots, or a median speed of 15 knots. On the day of the collision, however, Captain Unnikrishnan claimed that when he departed the inner basin and proceeded to the breakwater, he was traveling between 8 and 9 knots. When he approached buoy 14, he increased his speed to 10 knots. It was not until buoy 12 that Captain Unnikrishnan claims to have spotted the YUKON on his radar and reduced speed to 6 knots.

The Court questions the accuracy of Captain Unnikrishnan's self-serving estimate. First, it is completely uncorroborated by any other evidence, including any fixes, maneuvering logs, engine logs, or other eyewitness testimony. Indeed, Captain Unnikrishnan claimed that he made no course plottings, because "[t]he channel is narrow, and nobody really plots navigational course on a map for a channel." This is a specious claim given the plotting done by the crew of the YUKON. Second, Captain Unnikrishnan's estimate, which was based on his feel for the vibration "that comes from when I'm using the throttle," is belied by the urgency of his mission. Three hours before he was able to sail, Captain Unnikrishnan was told to depart "immediately." Thus, the Court is unpersuaded that Captain Unnikrishnan slowed to a speed at less than half what he normally uses to get to the oilfield. Finally, there is other evidence that Captain Unnikrishnan's average speed between the breakwater and the point of collision was substantially higher. According to Captain Unnikrishnan's signed statement soon after the collision, he reached the port's breakwaters at 1025 hours. The distance from the breakwaters to the collision is 1.35 nautical miles, which the INCHCAPE 14 traveled in approximately seven and one-half minutes. That is an average speed of 11 knots. While this estimate, which counsel for the YUKON made based on approximate and rough estimates as to when the INCHCAPE 14 passed the breakwaters and when the collision occurred, is less than precise, it also is well below the estimate of the INCHCAPE 14's speed given by Cargo Mate Davis just before collision. Of course, it may be that Cargo Mate Davis saw the INCHCAPE 14 after Captain Unnikrishnan accelerated to avoid the YUKON or that his own eyeball estimate is inaccurate. In any event, the other available evidence strongly suggests that the INCHCAPE 14 was proceeding briskly at a speed significantly above 6 knots, and contradicts any claim that Captain Unnikrishnan slowed his speed either because of the fog, or his claimed sighting of the YUKON on radar.

Furthermore, it is evident from the record that regardless of her initial course and any subsequent adjustments to starboard, the INCHCAPE 14 eventually had come to port towards the center of the channel, in the direction of the YUKON's course near the centerline. While it is true that there would be no commercial or logical reason for the INCHCAPE 14 to cross the channel (let alone to be in the channel at all) and Captain Unnikrishnan claims that he maintained the vessel's course on the far starboard side of the channel, it is inescapable that the INCHCAPE 14 changed her heading to port and came across the channel.²⁴ After passing buoy 12, Captain Unnikrishnan and the Chief Engineer saw that the fog had changed color, becoming thicker and black, and then realized that the thickened fog was, in fact, another vessel. Of critical importance, Captain Unnikrishnan indicated that he saw that vessel "a couple of degrees to our starboard side." In fact, at his deposition, Captain Unnikrishnan was asked to depict the relative positions of the vessels when he first saw the YUKON visually. He drew the INCHCAPE 14 on a heading left of and crossing toward the channel's centerline and to the YUKON's starboard bow. The Court recognizes that it was agreed at the time that the drawing was not drawn to scale. Indeed, the drawing also depicts the YUKON an entire ship's width to the port side of the centerline. Nonetheless, this exhibit is significant as it illustrates Captain Unnikrishnan's admitted observation of the vessels' respective headings at the moment he first sighted the YUKON visually. It is significant because it undercuts Captain Unnikrishnan's claim that the buoys were only fifteen to twenty feet to his starboard side (which Plaintiffs concede could not be accurate). If this claim were true, for the YUKON to be a couple of degrees off the starboard side of the INCHCAPE 14, she would have to be outside the channel, something which could not have happened given her deep draft. This testimony also was material because of Captain Unnikrishnan's claim regarding the earlier radar contact with the YUKON, as Captain Unnikrishnan claimed that upon sighting the YUKON on radar, he steered the INCHCAPE 14 "very slightly starboard." Again, if Captain Unnikrishnan had in fact, made such an adjustment, he could not have seen the YUKON off his starboard bow unless she was outside the channel. Thus, while the YUKON may have been favoring the port side of the inbound channel, the INCHCAPE 14 was not favoring the starboard side nearly as much as Captain Unnikrishnan at times suggested in his testimony, particularly as the INCHCAPE 14 passed buoy 12.

24 Captain Hickey theorized that the INCHCAPE 14 was making a turn to port across the channel because she overshot the second leg of the dogleg turn in the channel between buoys 14 and 12.

In any event, when Captain Unnikrishnan observed the YUKON, he increased speed to full ahead, turned the INCHCAPE 14 hard to port in an attempt to avoid the collision, and then turned back to starboard. Just before these adjustments, and approximately two minutes after Cargo Mate Davis made his last report of a low groan, Cargo Mate Davis saw what appeared to be the silhouette (and not the running lights) of a small boat about 800 yards away, at about half a point (5-6°) to port. Less than one minute later, as Cargo Mate Davis was attempting to discern this third visual contact, but before he had a chance to report it to the bridge, the INCHCAPE 14's starboard bow became visible in the fog, approximately 200 yards away, and it was crossing the channel diagonally from port to starboard. According to Cargo Mate Davis, the INCHCAPE 14 was positioned farther to the left-hand side of the YUKON's bow than the silhouette had been. However, there is some dispute as to the INCHCAPE 14's exact position off the YUKON's bow at the moment of this first visual contact. In particular, according to Cargo Mate Davis, he first sighted the INCHCAPE 14 when she was on the YUKON's port side, one and one-half to two points (about 16.25-22.5 degrees) off the YUKON's port bow, and near the channel's edge. Captain Wilson testified to the Court, however, that Cargo Mate Davis reported the small boat "dead ahead" of the YUKON, but "altering to port and approaching at a high rate of speed." This testimony is consistent with other evidence presented during the trial.

Less than thirty seconds after Cargo Mate Davis first sighted the INCHCAPE 14 through the fog, the YUKON hit the INCHCAPE 14 about ten feet forward of the INCHCAPE 14's aft end. According to Cargo Mate Davis, the INCHCAPE 14's bow turned to her port at the last moment before impact. The YUKON's bell logger indicates that at 10:31:55 hours, Captain Wilson ordered the YUKON to stop her engines.²⁵ Thirty seconds later, Captain Wilson ordered the engines 30% ahead.

25 The YUKON came to all stop on her starboard engine and 4% throttle on her port engine. It is clear that Captain Wilson's order at this time was to stop all engines. At trial, the Captain suggested that the 4% figure in the bell logger is attributable to operator error.

For a short period, the INCHCAPE 14 remained attached to the YUKON's bow and her crew members climbed to safety aboard the YUKON. Captain Unnikrishnan remained on the boat and, using forward and astern thrusts of the engines, he managed to detach the INCHCAPE 14 from the YUKON's bow by approximately 1034 hours. When a swell of water caused the detached INCHCAPE 14 to begin sinking, Captain Unnikrishnan jumped into the channel and was soon rescued by the pilot boat.

Around 1034 hours, Captain Wilson became very concerned about the YUKON's heading and the risk of running aground. According to Captain Wilson: "The situation with the INCHCAPE 14 across our bow mostly to starboard and the engines coming to all stop with a turn to the right for the channel required that we actually ended up backing full on the starboard main engine because the bow had swung to port and we needed to bring the bow to the right." The engine order for the 50° heading swing to starboard (from 133° to 183°)²⁶ was given at 10:38:23 hours, when the bell logger reflects the Captain's order to go full astern on the starboard engine. Plaintiffs suggest that such a drastic heading change was necessary because the YUKON was far to port in the channel by that time. On cross-examination, Captain Wilson's testimony was that he did not recall the YUKON's position in the channel at that time, only its heading. He knew the YUKON's heading was off because buoy 14, the red port side buoy, was on his starboard bow.²⁷ Damage to the INCHCAPE 14 and Her Owner

26 On redirect, Captain Wilson revised his reading of the course recorder, testifying that course change at 1034 hours was to 176°-177°, not as far as 183°.

27 Counsel for the Government tried to explain the location of the red buoy on the YUKON's starboard bow by theorizing that if the YUKON was still on the 134 leg and had not yet turned to the 147 leg, buoy 14 could be ahead on her port side. But the plot for 1037 hours (inaccurate as to position but likely accurate as to forward progress) puts the YUKON already on the 147 leg, approaching buoy 14 and the 160 leg. Captain Wilson made the 50 degree heading change maneuver at 10:38:23 hours. However, this may not necessarily mean that the YUKON was far over to the port side but the scale of the maneuver seems off if the YUKON was closer to the center. Of course, this is not conclusive proof of where the YUKON was at the time of the collision, but, as noted, the Court finds that she was slightly off to the port side of the centerline at collision.

The collision left the INCHCAPE 14 seriously damaged and in need of a tow into port. The INCHCAPE 14 subsequently underwent repairs and was out of service from February 27, 2000 through July 5, 2000. The Parties have stipulated that the cost of salvage, repairs, and related expenses was $1,374,654.46. ISS paid $31,612 in uninsured repair and survey costs as well as a $10,000 deductible, and Qatar Insurance paid $1,333,042.46, the balance of the insured expenses, under the INCHCAPE 14's marine hull and machinery insurance policy.

In dispute are the uninsured damages allegedly incurred by Plaintiffs in the form of lost profits.²⁸ Plaintiffs contend that but for the collision on February 27, ISS would have obtained a second contract with Total Sirri with extensions through October 29, 2000. Defendant takes the position that the Plaintiffs have inflated their claim for lost profits by many months and that ISS failed to mitigate its losses.

28 Defendant did not dispute Plaintiffs' representation of their salvage and repair costs, the total amount of which was stipulated by the Parties to be $1,374,654.46. Defendant nonetheless cross-examined Whiteside on repairs that were allegedly unnecessary or for damage that predated the collision. Defendant's post-trial submissions did not address this line of questioning, so the Court assumes that Defendant is not deviating from its prior stipulation to the salvage and repair costs.

To resolve this matter, the Court must look to matters which pre-date the collision. On October 13, 1999, Total Sirri originally contracted for the use of the INCHCAPE 11 as a supply boat for $1399/day. The INCHCAPE 11 is a 100-foot crewboat that is considerably smaller than the INCHCAPE 14. By its terms, the contract became effective on September 1, 1999 (hereinafter "the September Charter"), and provided for a five month initial operational period followed by an option to extend the contract one time for a maximum of five months. On February 5, 2000, the parties amended their original contract in order to swap out the INCHCAPE 11 for the larger INCHCAPE 14, to shorten the initial operational period to 136 days, and to limit the optional extensions to three possible one-month extensions. Pursuant to this agreement, the INCHCAPE 14 was charged out at $2100/day.

There is some dispute as to the commencement date of the amendment to the September 1999 charter. Christopher M. Whiteside, Executive Director of Inchcape Dubai throughout the Middle East, was Plaintiffs' sole damages witness. At the time of the collision, Whiteside was the finance director for ISS, when it was still a division of MMI. According to Whiteside, Total Sirri and ISS had interpreted the amendment to cause the new operational period to run from the signing date of the original charter, which was October 13, 1999. Only under such an arrangement would ISS be able to perform on the contract in February 2000, as it did, without ever receiving a notice of extension or notice of option from Total Sirri. Whiteside also pointed out, as further proof of the parties undocumented intent, that Total Sirri solicited tender offers for a subsequent charter to begin March 1, 2000, presumably because this date would "dovetail" with the termination of the ISS contract, which Whiteside calculated to fall on or about February 29, 2000. In short, based on Whiteside's testimony, Plaintiffs argue that Total Sirri and ISS, by their actual practice, had modified the charter's start date.

Defendant argues that the amendment to the September Charter served two purposes: to swap out the smaller INCHCAPE 11 for the bigger INCHCAPE 14, and to shorten the operational period of the charter and limit the extensions. According to this view, the start date for the contract remained September 1, 1999, and, therefore, by virtue of the shortened operational period, the parties' contract expired on January 14, 2000. Thus, as of January 15, 2000, the INCHCAPE 14 was working in the first one-month extension and, because the parties to the charter agreed to a maximum of three such extensions, the contract would expire no later than April 15, 2000, approximately forty-nine days after the collision. Defendant urges the Court to limit Plaintiffs' lost use damages to this remaining forty-nine day period on the amended September charter.

Though the issue is not free of doubt, the Court finds Plaintiffs' interpretation of the amendment to be more persuasive. While Whiteside's calculation of the 136 days does not take the amendment of the contract precisely until the end of February (because 136 days from October 13, 1999 is February 26, 2000), Total Sirri's solicitation of bids for services beginning on March 1, 2000 is more consistent with Whiteside's testimony than Defendant's theory. Indeed, if Defendant's theory were true, then the timing of the solicitation should have been for services beginning on April 15, 2000, or at least the 15th day of the month.

In any event, at some point in February, Total Sirri issued a call for tender offers for crewboat charter services to begin on March 1, 2000.²⁹ Two days after the collision, on February 29, 2000, ISS sent a letter to Total Sirri confirming that ISS would "supply [Total Sirri] with the crew boat M/V Inchcape 11, as of 27th February, 2000, as replacement for the Inchcape 14 (as per SIR/OP/200 Amend. No. 1, Sub-article 3.5)." The parties agreed that Total Sirri would pay the original daily rate for the INCHCAPE 11 ($1399/day) and the hire period would be extended to March 5, 2000.

29 The call for bids for services starting March 1, 2000 is dated February 2, 2000, which could be the date the document was created, the date it was made public, or some other date.

The record contains no further communications between the two contracting parties until April 3, 2000, when Total Sirri sent ISS a facsimile informing ISS that its tender offer "proposal dated on 27th February 2000" had not been successful. It can at least be inferred from these circumstances that, as of March 1, 2000, Total Sirri had not accepted an offer on its proposed charter and was willing to use the services of the INCHCAPE 11 only for a brief period.

The Parties' competing theories as to why ISS lost the Total Sirri charter share a lack of documentary support and a reliance on Whiteside's testimony. According to Plaintiffs' theory, Total Sirri sent a letter to ISS dated March 1, 2000, in which it agreed to use the INCHCAPE 11 and gave ISS fifteen days to obtain a replacement vessel. Whiteside testified that "the INCHCAPE 11 never stood a chance of being accepted for the contract" because she was a smaller vessel. It was thought, however, that ISS might be able to purchase an existing sister vessel to the INCHCAPE 14, thus explaining why Total Sirri allowed ISS a 15-day grace period in which to make arrangements for such a purchase. When ISS did not make the purchase, because it considered the asking price too high, Total Sirri went elsewhere for the services of a suitable vessel.

Under Defendant's theory, after agreeing to engage the INCHCAPE 11, Total Sirri asked ISS to put an additional officer on the ship and ISS informed Total Sirri that the extra man would be charged at an additional $150/day. Defendant then points to the April 3, 2000 letter telling ISS they had lost the bid and suggests that it was ISS' unwillingness to negotiate on the cost of an extra man for the INCHCAPE 11 which caused Total Sirri to reject the bid.

The evidence in the record, however, does not demonstrate a causal relationship between the lost charter for the INCHCAPE 14 and ISS' failure to negotiate the added cost of a new crew member for Total Sirri's provisional use of the INCHCAPE 11. At most, the dispute over the additional crew member for the INCHCAPE 11 shows the parties' general unwillingness to negotiate their terms. But were the INCHCAPE 14 available for charter, there is nothing in the record to suggest the need for any further negotiation regarding the extra crew member. Nor has Defendant established a temporal connection between the letter from Total Sirri requesting an additional officer — the date of which is nowhere in the record — and the rejection of ISS' bid (involving the INCHCAPE 11) on April 3.

On the other hand, Plaintiffs' theory is supported by the parties' contracting history. Total Sirri demonstrated clearly its preference for a larger vessel when it amended the September Charter to swap out the INCHCAPE 11 for the INCHCAPE 14. Although the record is not explicit about why Total Sirri would allow ISS a grace period that went 10 days beyond the hire period of the INCHCAPE 11, it is at least clear that this period conditioned the parties' business relationship on ISS' ability to acquire a ship of sufficient size and capacity. The grace period offered by Total Sirri also suggests its desire to continue in its charter of the INCHCAPE 14 (or an equivalent vessel) from ISS.

Thus, the Court finds that but for the incapacity of the INCHCAPE 14, it is reasonably certain that ISS would have acquired a second charter with Total Sirri under the terms set forth in the tender solicitation and at the rate established by the September Charter. Moreover, it is reasonably certain (meaning that barring any unforeseeable circumstances) that Total Sirri would have exercised its extension options on this second charter. The Court recognizes that Total Sirri solicited bids in February for charter services, but the solicitation was sent to ISS and, as noted, Total Sirri gave ISS al 5-day grace period to replace the INCHCAPE 14. Thus, there is nothing in the record to seriously question ISS' ability to charter the INCHCAPE 14 to Total Sirri through October 29, 2000.

Determining that the INCHCAPE 14 would have been chartered to Total Sirri, however, does not end the dispute. There remains the question of what profits ISS reasonably would have made from such a charter. First, the most that Plaintiffs can claim is the net profit from a charter rate of $2100 per day minus operating expenses. Plaintiffs projected the operating costs to be approximately $414 per day.³⁰ This estimate, however, appears low as the actual operating costs ISS incurred when operating the INCHCAPE 14 between July 6, 2000 and October 29, 2000 in the spot market was approximately $611 per day.³¹ Thus, the daily net profit to ISS from a charter of the INCHCAPE 14 to Total Sirri would be approximately $1489, for a total net profit of $369,272.

30 This number is derived by dividing $102,738 by 248 days (the time between February 27, 2000 and October 29, 2000).

31 Plaintiffs have represented that the actual total amount of operating costs for this period was $70,242. When divided by 115, the average daily operating costs are approximately $611. At oral argument, counsel for Plaintiffs attempted to explain the difference between the actual operating costs in the July-October time period as reflecting certain fixed costs that evidently were not included in the projected operating costs. Yet, he could not identify any specific fixed costs. Moreover, whatever may explain the difference, it is inescapable that the amount of actual costs, even if explained by amortization of fixed costs or increases in variable costs (such as fuel) are a more reliable estimate of what costs ISS would have incurred had the INCHCAPE 14 been working for Total Sirri in the summer of 2000.

However, that number must be reduced for three reasons. First, given the INCHCAPE 14's inactivity between February 27, 2000 and July 6, 2000, the profit must include saving on staff costs of $11,142. Second, it must account for profits ISS made from the 15-day charter of INCHCAPE 11 from February 27, 2000 until March 5, 2000. The daily rate for this charter was $1425 per day. However, Whiteside estimated that the INCHCAPE 11 only worked between 7 to 10 days during that time. Taking the mid-point (eight and one-half days) and assuming the lower daily operating costs of $414 per day, the net profit to ISS from this limited charter was approximately $8594. Third, the net profit to ISS also must be reduced by the profits ISS made from employing the INCHCAPE 14 in the spot market. As Plaintiffs concede, the INCHCAPE 14 became operational by July 6, 2000 and was put to use in the spot market and netted a total of $44,437 in profits between July 6 and October 29, 2000.³² Thus, reducing the net profits from a charter of the INCHCAPE 14 to Total Sirri by $11,142, $8594, and $44,437 results in a total net profit of $305,099. This number, added to the repair costs, yields a total of $1,679,753.46 in damages.

32 The record includes spot market numbers for the period from July to October 2000. Plaintiffs have not made a showing as to the charter market or the average charter rate.

II. Conclusions of Law

A. Standard of Review

"Collision liability is based on fault, a concept that presupposes a common standard of appropriate conduct." In re G G Shipping Co. v. M/V Nedlloyd Van Noort, 767 F. Supp. 398, 404 (D.P.R. 1991); see also The Elizabeth M. Baker, 69 F.2d 54, 56 (2d Cir. 1934) ("Liability in rem presupposes that a vessel colliding with another has been guilty of negligent navigation."). Here, the Parties agree that at all relevant times, the navigation of the YUKON and the INCHCAPE 14 was governed by the COLREGS.³³ There are no "special rules made by an appropriate authority" for the Jebel Ali channel which apply in this case. 33 U.S.C. foll. § 1602 (R. 1(a)-(b)). Thus, fault will be assessed upon a finding that one or both of the vessels has violated one or more of these Rules, which are "binding enactments that must be adhered to closely." Thomas J. Schoenbaum, 2 ADMIRALTY AND MARITIME LAW 92 (4th ed. 2004). The COLREGS are to be "read together with no specific rule superseding any other rule," thus requiring consideration of all rule violations that could have caused the collision. Maritrans Operating Partners L.P. v. M/T Faith I, 800 F. Supp. 133, 138 (D.N.J. 1992).

33 Jurisdiction is not contested. Because this is an admiralty case, the Court has original jurisdiction pursuant to 28 U.S.C. § 1333 and the Public Vessels Act, 46 U.S.C.A. App. §§ 781-790.

"Establishing liability in a collision case is eased by the Pennsylvania rule, which provides that when a vessel is in violation of a statutory duty, the burden is on the offending vessel to prove that its conduct did not and could not have caused the collision." Stolt Achievement, Ltd. v. Dredge B.E. Linaholm, 447 F.3d 360, 364 (5th Cir. 2006). To be precise, the rule of the Pennsylvania is that when

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.

The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1873), overruled in part on other grounds by United States v. Reliable Transfer Co., 421 U.S. 397 (1975) (adopting proportional fault theory of liability).³⁴ "The so-called `PENNSYLVANIA Rule' does not ipso facto impose liability; however, it shifts the burden of proof as to causation . . . on the party to whom it applies." Ching Sheng Fishery Co. v. United States, No. 93 Civ. 1634, 1996 WL 161789, at *11 (S.D.N.Y. Apr. 8, 1996), aff'd, 124 F.3d 152 (2d Cir. 1997); see also Nicholas J. Healy Joseph C. Sweeney, THE LAW OF MARINE COLLISION 46 (1998) ("[T]he Pennsylvania Rule does not create a presumption of fault, but one of causation. The rule, as stated by the U.S. Supreme Court, presupposes that fault has first been proved: It applies when the vessel `is in actual violation of a statutory rule intended to prevent collision.'" (quoting The Pennsylvania, 86 U.S. (19 Wall.) at 136)).³⁵

34 The Court notes that it is not a unanimously held view among the circuit courts that Reliable Transfer overruled, even in part, The Pennsylvania. The Second Circuit has not addressed the issue, but the circuits that have are divided. The Fifth and Seventh Circuits have held that Reliable Transfer overruled The Pennsylvania, in part. See Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037, 1047 (7th Cir. 1995) (noting that The Pennsylvania was "overruled in part on other grounds" by Reliable Transfer); Atlantic Mut. Ins. Co. v. ABC Ins. Co., 645 F.2d 528, 531 n. 9 (5th Cir. 1981) (holding that The Pennsylvania was overruled "only to the extent of abolishing the mutual fault-equal contribution rule and substituting the new rule of allocation determined by the degree of comparative fault"). The Eleventh Circuit has expressed the view that Reliable Transfer did not overrule The Pennsylvania but "simply eased the rule's harshness." Self v. Great Lakes Dredge Dock Co., 832 F.2d 1540, 1555 (11th Cir. 1987). The Ninth Circuit initially took neither position, satisfied to merely note the merits of both sides of the debate. See Crown Zellerbach Corp v. Willamette-Western Corp., 519 F.2d 1327, 1327 n. 3 (9th Cir. 1975). Much later, a panel of that court cited Reliable Transfer as overruling The Pennsylvania, while noting that the entire holding had not been repudiated. See Crowley Marine Servs. Inc. v. Maritrans Inc., 447 F.3d 719, 724 (9th Cir. 2006).

35 The Pennsylvania rule has collected its share of critics. See, e.g., G G Shipping, 767 F. Supp. at 404 ("[T]he Pennsylvania Rule has been a stubborn thorn in the sides of shipowners and attorneys alike."); S. Pac. Transp. Co. v. The Tug Captain Vick, 443 F. Supp. 722, 732 n. 1 (E.D. La. 1977) (noting that the Pennsylvania rule is "unnecessary, inequitable, and ineffective in accomplishing its original design; like the divided damages rule, it should be abolished, or at least the burden of rebuttal must be reduced.").

The Second Circuit has held that the Pennsylvania Rule is to be applied realistically. In The Mabel, 35 F.2d 731 (2d Cir. 1929) (per curiam), the Second Circuit exonerated a barge from fault on a claim that the positioning of certain lights made the collision possible. In rejecting that claim and in finding that the tug's "fault was so plain," the Court observed that "[a]ll things are indeed possible, but even in applying [the Pennsylvania Rule] . . . we are limited to the reasonable probabilities." Id. at 732; see also Atlantic Mut. Ins. Co., 645 F.2d at 531 (finding vessel in violation of statutory signaling rules failed to overcome burden of showing "by all reasonable probabilities" that her violation did not cause the collision (omitting quotations)). A little over a decade later, the Second Circuit went further, stating: "[H]owever the Pennsylvania rule was originally stated, the history of its application shows that it has done no more than shift the burden of proof with regard to causality." The Aakre, 122 F.2d 469, 474 (2d Cir. 1941).

Where more than one vessel is found to be at fault for a collision, liability "is to be allocated among the parties proportionately to the comparative degree of their fault. . . . " Reliable Transfer Co., 421 U.S. at 410. "Thus, a determination of the parties' liability involves an assessment of their degrees of fault attributable to the accident against the looming Pennsylvania rule." Davis v. Superior Oil Co., 510 F. Supp. 1162, 1165 (E.D. La. 1981). In apportioning liability, the analysis hinges on the "relative culpability of the parties' actions, rather than their respective degrees of physical causation." In re Ocean Food Boat Co., 692 F. Supp. 1253, 1264 (D. Or. 1988); see also Moore v. Matthews, 445 F. Supp. 2d 516, 522 (D. Md. 2006) (noting that damages "will be allocated among the parties proportionally to the comparative degree of fault"); Complaint of Seiriki Kisen Kaisha, 629 F. Supp. 1374, 1381 n. 3 (S.D.N.Y. 1986). As in life, it is not the quantity, but the quality of the collective errors of each party that determines relative fault. See Grosse Ile Bridge Co. v. Am. S.S. Co., No. 92-CV-76556, 2006 WL 680855, at *2 (E.D. Mich. Mar. 15, 2006).

B. Violations of the COLREGS

"Collisions usually result from mutual faults, and this case is no exception." The Marion, 56 F. 271, 272 (W.D. Wash. 1893). Both the YUKON and the INCHCAPE 14 accuse each other of violating, and each did violate, various Rules of the Road. The Rules in play are 2, 5, 6, 7, 8, 9, 18, 19, 28, and 35.

Rule 2, commonly referred to as the "rule of good seamanship," provides the paradigm for evaluating the conduct of the vessels under the COLREGS. Healy Sweeney, supra, at 74. Rule 2 provides:

(a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

(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.

33 U.S.C. foll. § 1602 (R. 2). This "rule of good seamanship is . . . in essence the basic rule applicable in negligence cases: one is liable in damages for the foreseeable consequences of a failure to use the care expected of those of one's calling, whatever that calling may be." Healy Sweeney, supra, at 75. While the COLREGS spell out specific duties and responsibilities of those at sea, Rule 2 reflects the obvious notion that it is "no more possible to visualize every act or omission of a master or crew member that could conceivably be held poor seamanship than it is to visualize every act or omission of a shore-side factory manager or his subordinates that might be found to constitute negligence." Id. at 76. With this governing principle in mind, the Court now turns to the missteps of each vessel.

1. The INCHCAPE 14's Liability

Defendant claims that the INCHCAPE 14 violated several Rules of the Road, in particular, Rules 2, 5, 6, 7, 8, 19, and 35. For the most part, the Court agrees.

Rule 5 — The Lookout

First, the INCHCAPE 14 contravened the lookout requirement of Rule 5. As Plaintiffs concede, the INCHCAPE 14 did not have a lookout by sight and hearing on the bow. Instead, Captain Unnikrishnan elected to wait until he was between buoys 14 and 13 to call the Chief Engineer up from the helm to be the lookout on the port side of the enclosed wheelhouse. The Captain remained as the lookout on the starboard side while he also claims to have watched the radar, navigated the INCHCAPE 14, and instructed the crew about which course to steer. This arrangement was a clear violation of Rule 5 of the COLREGS, which provides that "[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision." 33 U.S.C. foll. § 1602 (R. 5). "Courts have found that violation of the lookout rule set forth in Rule 5 is serious and results in the offending vessel being held wholly or partially at fault." Elenson v. SS Fortaleza, No. 90 Civ. 0437, 1991 WL 254571, at *7 (S.D.N.Y. Nov. 21, 1991); see also In re Complaint of Pac. Bulk Carriers, Inc., 639 F.2d 72, 75 (2d Cir. 1980) (holding that vessel which failed, inter alia, to post a proper lookout was 100% at fault for collision).

"The importance of a lookout is self-evident." Afran Transp. Co. v. The Bergchief, 170 F. Supp. 893, 900 (S.D.N.Y. 1959), aff'd, 274 F.2d 469 (1960); see also Nicholes v. M/V Maya, 949 F. Supp. 391, 398 (D.S.C. 1996) (noting that "`the performance of lookout duty is an inexorably requirement of prudent navigation'" (quoting Anthony v. Int'l Paper, 289 F.2d 574, 580 (4th Cir. 1961))). As the Supreme Court observed well over a century ago:

The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment's negligence on his part may involve the loss of his vessel with all the property and the lives of all on board.

The Ariadne, 80 U.S. (13 Wall.) 475, 478 (1871). Moreover, "the vigilance of the lookout ought to be proportionate to the danger. . . ." The Saratoga, 37 F. 119, 120-21 (S.D.N.Y. 1888). Also, not surprisingly, the default rule is that the "proper place for a lookout is under ordinary circumstances on the bow," so he can "use his ears, as well as his eyes, and . . . report what he hears as well as what he sees." Afran Transp., 170 F. Supp. at 900. The lookout is to be vigilantly maintained by a competent person of suitable experience, thus it is "axiomatic that `an inefficient lookout is equivalent to none.'" SS Fortaleza, 1991 WL 254571, at *6 (quoting Interstate Towing Co. v. Stissi, 717 F.2d 752, 755 (2d Cir. 1983)); see also Chamberlain v. Ward, 62 U.S. (21 How.) 548, 570 (1859) (noting that lookouts "must be persons of suitable experience, properly stationed on the vessel and actually and vigilantly employed in the performance of that duty"). Indeed, a lookout simultaneously performing many functions is insufficient. See Complaint ofFlota Merchante Grancolombiana, S.A., 440 F. Supp. 704, 715 (S.D.N.Y. 1977) ("Lookouts must have no other duties to perform. . . ."); The Montrose, 47 F. Supp. 719, 724 (E.D.N.Y. 1942) ("A lookout cannot have his attention distracted by the performance of other duties while he is acting as a lookout, but must concentrate his attention exclusively on maintaining a proper lookout.").

Plaintiffs attempt to deflect the negligent absence of a lookout on the bow by arguing that the bow is only twelve feet from the wheelhouse and that the view from the wheelhouse was, in fact, better than from the bow. To the extent Plaintiffs are implying that Rule 5 does not apply to small boats, like the INCHCAPE 14, where the bow is close to or below the bridge, they are wrong. "The obligation to maintain a proper lookout applies equally to small vessels as it does to large vessels." SS Fortaleza, 1991 WL 254571, at *6; see also The Marion, 56 F. at 272 ("There is no exception to the rule requiring a lookout in favor of craft capable of committing injuries, on account of size."). However, it is true, as Plaintiffs noted in their post-trial submission, that the absence of a lookout on the bow need not always result in a finding of fault, but the cases cited by Plaintiffs involved perfect weather conditions where there was no claim that a lookout on the bridge failed to see the oncoming vessel. See, e.g., Capt'n Mark v. Sea Fever Corp., 692 F.2d 163, 165-67 (1st Cir. 1982) (holding that absence of lookout on vessel not error, but the two vessels were fully aware of each other while several miles apart and the night "was calm and moonlit"); M/TFaith I, 800 F. Supp. at 142 ("A Rule 5 violation does not occur when those aboard a vessel have an unobstructed view of an approaching vessel even though a bow look-out is posted."). Here, while it may be that a lookout might not have seen the YUKON in the fogged-in channel any better on the bow than from the wheelhouse, see Moran Towing Transp. Co. v. City of New York, 620 F.2d 356, 357 n. 1 (2d Cir. 1980), he at least might have heard the YUKON's horn better from the bow, see SS Fortaleza, 1991 WL 254571, at *7 ("A dedicated lookout might well have . . . heard the FORTALEZA's fog horn prior to the collision."); In the Matter of the Complaint of Waterstand Marine, Ltd., CIV.A. No. 87-1516, 1988 WL 78776, at *8 (E.D. Pa. July 26, 1988) ("Although visibility was almost nil so that a lookout might not have been able to see the tower in time to warn the Pilot and Captain to take preventative maneuvers, the look-out could possibly have heard the tower's fog signal early enough so that the collision could have been avoided."). Indeed, under the visually-impaired environment in which the INCHCAPE 14 was traveling, it certainly would have been more prudent to have a dedicated lookout on the bow. See The Arabian Am. Oil Co. v. Hellenic Lines, Ltd., 633 F. Supp. 659, 668 (S.D.N.Y. 1986) ("In the widely-known hazardous circumstances under which the Hellenic Navigator was navigating, however, failure to post a lookout on the bow was imprudent and negligent."). Moreover, if nothing else, Captain Unnikrishnan should at least have assigned one experienced seaman with the sole responsibility of being the lookout, regardless of the position of that lookout. Instead, he assigned his Chief Engineer only to monitor the port side, while the Captain looked after the starboard side, in addition to the other responsibilities he had in trying to expeditiously exit the channel. See Interstate Towing Co., 717 F.2d at 755 ("The need for competent vigilance has prompted repeated holdings that a lookout's sole duty should be that with which he is charged and that the one who is assigned the duty of helmsman is not a proper person to act as a lookout."); G G Shipping Co., 767 F. Supp. at 408 ("The man at the wheel is not a proper lookout, for he has the task of navigating as his primary concern."). Thus, the Court finds both that the INCHCAPE 14 violated Rule 5 and that Plaintiffs have failed to establish that this violation did not contribute to the collision. See Managua Nav. Co. v. Aktieselskabet Borgestad, 7 F.2d 990, 992 (5th Cir. 1925) ("Clearly the Managua was at fault. It cannot be doubted that it was her duty to maintain a lookout in the fog. It is doubtless true that her pilot thought the fog signals of the Borgestad came from the port side of his ship, but the presence of a lookout in a better position to hear might well have resulted in correcting the pilot's mistake and preventing the maneuver to starboard, where the Borgestad actually was." (omitting citation)); Hygrade Operators, Inc. v. Tug Tahchee, 307 F. Supp. 2d 626, 631 (D.N.J. 2003) (holding vessel could not overcome duty to show that failure to keep lookouts in wheelhouse of vessel traveling in fog could not have contributed to collision).

Rule 6 — Safe Speed

The INCHCAPE 14 also failed to travel through the channel at a safe speed in the restricted visibility that prevailed in the Jebel Ali channel, in violation of Rules 6 and 19. Rule 6 requires that each "vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions." 33 U.S.C. foll. § 1602 (R. 6). Rule 19(b) requires "[e]very vessel . . . [to] proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility." Id. (R. 19(b)). In determining what the safe speed is in the "prevailing circumstances," the factors that should be taken into account include, inter alia, the "state of visibility," the "traffic density," "the manoeuverability of the vessel," the "state of wind, sea and current, and the proximity of navigational hazards." Id. (R. 6(a)(i)-(iii), (v)); see also Waterstand Marine, 1988 WL 78776, at *9 ("Rule 6(a) lists the factors that should be considered in determining a safe speed, most notably the state of visibility and the state of the current."). In the end, the "question of what constitutes `safe speed' is relative to the situation confronting the vessel at any given moment." Ching Sheng Fishery, 124 F.3d at 159 (omitting citations); see also Polarus S.S. Co. v. T/S Sandefjord, 236 F.2d 270 (2d Cir. 1956) (noting that "moderate speed" is "undoubtedly less than full speed," and is a "relative" term which "depends on the peculiar circumstances of each case").

Captain Unnikrishnan's own unscientific estimate of the INCHCAPE 14's speed, based as it was on his feel for the vibration from the throttle, was that the INCHCAPE 14's speed increased (he says from the 8-9 to 10 knots) between the breakwater and buoy 14. This was despite the obvious fact that the channel was burdened with a thick fog. From this fact alone, the Court concludes that INCHCAPE 14 was in violation of Rule 6, as she was obligated to reduce her speed on account of the extremely poor visibility from the fog. "When a vessel is proceeding in circumstances of limited visibility, such as dense fog, [as the INCHCAPE 14 here was], even though such vessel might `see' another vessel through the use of its radar, a vessel so proceeding is under a duty to reduce its speed when entering the fog, so as to avoid the possibility of a collision." In the Matter of the Complaint of Hellenic Lines, Ltd., No. 81-529-N, 1982 WL 579, at *10 (E.D. Va. Nov. 17, 1982); see also The G.K. Melon, 30 F.2d 238, 239 (2d Cir. 1929) (holding that vessel was at fault, in part, for ignoring the "rule requiring her to reduce her speed before, as well as after, entering the fog"); The Julia Luckenbach, 219 F. 600, 604 (E.D. Va. 1914) ("The Indrakuala should at least have slowed down upon approaching and entering the fog, if not have stopped her engines, and for her failure alike to have navigated in anticipation of the approaching fog, and to have reduced her speed, and reversed in time to have had her movements under control, after entering the same, until too late to avoid collision with the Luckenbach. . . .").³⁶

36 The INCHCAPE 14's failure to travel at a safe speed in restricted visibility caused by the fog also violated Rule 19(d), which provides that each "vessel proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility." 33 U.S.C. foll. § 1602 (R. 19(d)); see also Nat'l Shipping Co. of Saudi Arabia v. United States, 95 F. Supp. 2d 482, 491 (E.D. Va. 2000) (holding that vessel's failure to reduce speed in restricted conditions violated Rules 6 and 19(d)).

The INCHCAPE 14's failure to travel at a safe speed in the dense fog is not excused, or even mitigated, by Captain Unnikrishnan's claim to have been operating the radar and to have later made radar contact with the YUKON. See Standard Oil Co. v. S.S. Rotti, 286 F. Supp. 677, 679 (N.D. Cal. 1967) ("While she did `see' the Tuttle on radar and apparently knew its course at the time of entering the fog, the Rotti was under a duty to reduce her speed when entering the fog so as to avoid the possibility of collision."), aff'd, 398 F.2d 835 (9th Cir. 1968) (per curiam); Pennzoil Producing Co. v. Offshore Exp., Inc., 943 F.2d 1465, 1470 (5th Cir. 1991) ("It is well settled that the use of radar does not relieve a pilot of the obligation to proceed at a safe speed."). This is particularly true given that the Court finds that Captain Unnikrishnan's testimony about the speed of the vessel is specious. There is no corroborating evidence to bolster the Captain's surmise, either from other crew members of the INCHCAPE 14 or from any bell loggers, charts, or any other physical evidence. Furthermore, Plaintiffs have offered no evidence that even a speed of 6 knots was safe under the circumstances. Indeed, there is no evidence that this speed was sufficient to permit the INCHCAPE 14 to stop in order to avoid colliding with the YUKON. Nor was there any reason given why the INCHCAPE 14 could not have traveled even slower or have stopped all engines upon making radar contact with the YUKON.

Thus, combined with the previously-discussed fault of the INCHCAPE 14 traveling without a bow lookout, the Court finds that Plaintiffs cannot sustain their burden under the Pennsylvania Rule of showing the INCHCAPE 14's violation of the safe speed rule could not have contributed to the collision. Had the INCHCAPE 14 entered the fog at a more moderate speed, she would have had more time to react to any sighting of the YUKON, whether by human or electronic contact. If nothing else, the added time might have allowed Captain Unnikrishnan to make a starboard turn away from the YUKON (and out of channel where collision with the YUKON would have been impossible), instead of the ill-advised and panic-driven port-side maneuver he executed. See New York Cuba Mail S.S. Co. v. United States, 16 F.2d 945, 946 (2d Cir. 1927) ("If the Experanza had retarded her progress but a trifle in compliance with the [safe speed] rule, the Conner would have cleared.").

Rules 7 and 19 — Risk of Collision and Close-Quarters Situation

The INCHCAPE 14 also failed to make effective use of its radar to avoid the risk of collision and to determine if a close-quarters situation was developing, thereby violating Rules 7 and 19(d). Rule 7 generally governs the avoidance of the risk of collision. Rule 7(a) provides that each "vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists." 33 U.S.C. foll. § 1602 (R. 7(a)). Importantly, "[i]f there is any doubt such risk shall, be deemed to exist." Id. Because this rule focuses on the mere risk of collision, it is not limited to situations involving imminent collision. As the Second Circuit has observed:

Since the rules are designed to prevent the risk of collision as well as collision itself, it is not necessary for a collision to be imminent or even probable before the obligation imposed by them accrues. The courts have expressed this concept in various ways. Said Judge Addison Brown: `There is danger or risk of collision whenever it is not clearly safe to go on.' While Judge Learned Hand put it thus: "Risk of collision' does not mean certainty of collision; but only that prudence demands that the navigators shall watch each other's navigation, and be prepared to do whatever safety may demand." In short, a situation may involve risk of collision before there is actual danger. . . .

Ocean Marine Ltd. v. U.S. Lines Co., 300 F.2d 496, 499 (2d Cir. 1962) (quoting The Aurania, 29 F. 98, 123 (S.D.N.Y. 1886) and Secony Vacuum Transp. Co. v. Gypsum Packet Co., 153 F.2d 773, 776 (2d Cir. 1946)); see also Williamson Leasing Co. v. Am. Commercial Lines, Inc., 616 F. Supp. 1330, 1340 (E.D. La. 1985) ("`Risk of collision' means mere chance, peril, hazard or danger of collision."). Under this Rule, as Judge Learned Hand emphasized, "it must always be remembered that it is the risk of collision, not the collision itself, that masters must avoid." Ocean S.S. Co. v. United States, 38 F.2d 782, 784 (2d Cir. 1930).

One way to determine whether there is a risk of collision is through the use of radar. Rule 7(b) provides that each vessel "shall" make "[p]roper use . . . of radar equipment . . . 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 (R. 7(b)). It is a violation of Rule 7(b) to fail to effectively use radar. See Ching Sheng Fishery, 124 F.3d at 160. A "master or pilot who fails" to use radar "intelligently and fully" is "heavily burdened to prove that such fault did not contribute to the collision." Williamson Leasing, 616 F. Supp. at 1340. The courts have held that effective use of radar requires neither plotting nor the use of computer-aided collision-avoidance systems. See id.; see also Fireman's Fund Ins. Cos. v. Big Blue Fisheries, Inc., 143 F.3d 1172, 1175 (9th Cir. 1998) ("We . . . 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."). However, the Rule explicitly requires "equivalent systematic observation of detected objects." 33 U.S.C. foll. § 1602 (R. 7(b)).

If a vessel makes radar contact with another vessel, then Rule 19(d) comes into play. Rule 19(d) reads as follows:

A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing and/or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided:

(i) an alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken;

(ii) an alteration of course towards a vessel abeam or abaft the beam.

Id. (R. 19(d)). "There is no hard and fast rule to determine if a close-quarters or risk of collision exists. It is not defined in the COLREGS and the case law suggests its existence should be determined on a case-by-case basis taking into account consideration the location of the vessels and the time and space in which they have to maneuver." In re Otallnv. Ltd., No. 03 Civ. 4304, 03 Civ. 9962, 04 Civ. 1107, 2006 WL 14512, at *9 (S.D.N.Y. Jan. 4, 2006); accord In the Matter of the Complaint of Hellenic Lines, Ltd., 730 F.2d 159, 164 (4th Cir. 1984) ("What constitutes close quarters is not defined in Rule 19 and must be determined in each case primarily upon the location of the vessels and the space in which they have to maneuver."). While the existence of a close-quarters situation is to be evaluated on a case-by-case basis, the Rule imposes on the master the duty to determine if there is a close-quarters situation. As with Rule 7(a), the purpose of such a rule is prevention, that is, the Rule requires vessels to recognize the need to take action to prevent collision.

Captain Unnikrishnan testified that near buoy 12, he observed a contact on his radar. The contact was the YUKON. In response to this radar contact, Captain Unnikrishnan claims that he reduced the INCHCAPE 14's speed to about 6 knots (after having increased her speed to 10 knots), and steered the INCHCAPE 14 "only very slightly starboard just slightly to the side just to see the ship's position." However, Captain Unnikrishnan did not indicate if he determined the YUKON's position, and there is no evidence that he tracked, through plotting or constant monitoring, the position, course, or speed of the YUKON. Nor did he indicate where within the channel the vessel was or how far she was from the INCHCAPE 14. In fact, Captain Unnikrishnan was unable to say how much time passed between this radar contact and when he visually observed the YUKON.

Based on the entirety of this testimony, it is apparent that Captain Unnikrishnan did not "use all available means appropriate" to determine if there was a "risk of collision," thus violating Rule 7(a). Indeed, the observation of the other vessel on the radar, particularly while transiting on the outer edges of a fogged-in narrow channel, "should have warned [Captain Unnikrishnan] of danger and he should have cautiously investigated [the radar] target." Williamson Leasing, 616 F. Supp. at 1341. At a minimum, it should have created enough doubt about the situation to presume that there was a risk of collision. See In re Nat'l Shipping Co. of Saudi Arabia, 147 F. Supp. 2d 425, 438 (E.D. Va. 2000) (noting that doubt about radar target's course and intentions created a presumption of risk of collision). Instead, Captain Unnikrishnan merely slowed down and only "very slightly" turned to starboard. However, Captain Unnikrishnan never attempted to make radio contact either with the YUKON or with Port Control to ascertain the YUKON's location, course, or speed. Moreover, he still never bothered to sound his fog horn, or any horn for that matter, or to place a lookout by hearing on the bow. And, while Captain Unnikrishnan reduced the INCHCAPE 14's speed to 6 knots, there is no evidence that he could not have further reduced her speed, or not ordered a full stop, to ascertain whether there was a risk of collision with the oncoming YUKON. Given this record, it cannot be said that Captain Unnikrishnan used all available means to determine the risk of collision he faced. See id. at 438 ("Tolosa also failed to make proper use of the SAUDI RIYADH's VHF radio to contact the RADFORD and determine the RADFORD's intentions and course. Although Tolosa placed three calls on the VHF radio, two of these calls were placed on the incorrect channel, and all three of the calls failed to identify the RADFORD by geographic location, as is customary and proper. The failure to properly utilize all means available to determine if a risk of collision existed was clearly a violation of Rule 7 of the COLREGS. . . ."); Zim Israel Nav. Co. v. Special Carriers, Inc., 611 F. Supp. 581, 586 (E.D. La. 1985) (holding that vessel violated Rule 7, when "she merely reduced engine speed to dead slow ahead rather than turning to starboard or stopping her engines entirely"). Nor can it be said that this violation could not have contributed to the collision.

Furthermore, because he failed to make intelligent, full, and efficient use of the radar, Captain Unnikrishnan also violated Rule 7(b). For example, Captain Unnikrishnan never switched his radar view down from the six-mile scale, even after he claims to have spotted the YUKON, a simple step that would have helped him better identify any threat posed by the vessel. If nothing else, a clearer view might have alerted Captain Unnikrishnan to the precise location of the YUKON, something that would have been particularly prudent given the foggy conditions under which the INCHCAPE 14 and the radar-spotted YUKON were traveling. See SS Fortaleza, 1991 WL 254571, at *6 (finding violation of Rule 7(b) where "[t]he bridge watch onboard the SS FORTALEZA failed to use the vessel's sophisticated radar equipment properly and in a timely fashion," and where "[t]he radar information was tardy and failed to monitor targets properly"); ANR Prod. Co. v. M/V Mekhanik Dren, CIV. A No. G-87-304, 1989 WL 180064, at *7 (S.D. Tex. July 14, 1989) (finding a Rule 7(b) violation where "[n]o attempt was ever made to determine the [other] vessel's position with the aid of a nearby RACON platform, whose signal would have been displayed on the ship's radar had any effort been made to do so"). Because Rule 7(c) bars a vessel "from making assumptions on scanty information, especially scanty radar information," 33 U.S.C. foll. § 1602 (R. 7(c)), Captain Unnikrishnan had an obligation to try to get more information through the full use of his radar, something he did not do when he left it on the six-mile scale, see Schoenbaum, supra, at 94 ("Liability may result from failure to switch radar to a closer setting to keep track of radar blips. . . ."). Moreover, there is nothing in the record that shows that Captain Unnikrishnan consistently monitored the radar to obtain critical information about the YUKON's location, speed, or direction. While Captain Unnikrishnan was not required to plot the movements of the other vessel, he at least had a continuing duty to monitor the radar carefully to determine the risk of collision. See W. Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1285 (9th Cir. 1984) ("The Court . . . concludes that had the Grant plotted the course and speed of the target or otherwise used its radar capabilities it would have been able to determine whether the Higgins was in fact on its starboard or port bow and what course changes if any should be made.") (emphasis added); Magnolia Marine Transp. v. Frye, 875 F. Supp. 1216, 1226 (E.D. La. 1994) ("The Court can find no satisfactory explanation why the navigation of the SAM LEBLANC could not have been tracked by Deshotel on his radar other than that Doshotel was not properly monitoring his radar or that it was not functioning properly."); Seacarriers Martime Co. v. M/T Stolt Jade, 823 F. Supp. 1311, 1320 (E.D. La. 1993) ("The Gulfwind's failure to effectively use its radar systems in restricted visibility, in violation of Rule 7, left the vessel virtually blind in a fairway commonly used by other vessels and surrounded by oil structures."); In re Ocean Foods Boat Co., 692 F. Supp. 1253, 1263 (D. Or. 1988) (holding that crew's failure to "watch the radar as closely as they should have" violated Rule 7(b)). Having failed to do this, Captain Unnikrishnan violated Rule 7(b). And, under the circumstances of this case, Plaintiffs cannot meet their burden of showing that this violation could not have contributed to the collision. Indeed, had the INCHCAPE 14 monitored the radar contact with even a little more care, it is likely that she would have been able to identify the location of the YUKON, and avoid the collision, regardless of where she might have been in the channel. Paterakis v. United States, 849 F. Supp. 1106, 1112 (E.D. Va. 1994) (holding vessel violated Rule 7 when the master "neither plotted contacts with his radar nor systematically observed them," and where he "barely observed the radar at all," and that this violation was a cause of the collision). Armed with this information, the INCHCAPE 14 would have had plenty of time to make the simple maneuver of a starboard turn to the outer edges of the channel and pass the YUKON port to port.

For the same reasons that the INCHCAPE 14 violated Rules 7(a) and 7(b), the Court concludes that the INCHCAPE 14 also contravened Rule 19(d). Having picked up a vessel on his radar, Captain Unnikrishnan was obligated under Rule 19(d) to determine if a close-quarters situation was developing. See Hellenic Lines, 1982 WL 579, at *12. Given the foggy conditions in the channel, both the INCHCAPE 14 and the YUKON "were under an obligation to comply with Rule 19 . . . until they were within visual sight of one other . . ." Seacarriers Martime, 823 F. Supp. at 1320. Here, all Captain Unnikrishnan knew from the one observation on his radar was that there was another vessel ahead of him. Until he could determine otherwise, he was duty bound under Rule 19(d) to assume that he was in a close-quarters situation and act accordingly. Instead, Captain Unnikrishnan merely reduced his speed and turned, in his words, "very slightly" to starboard. Having done only this, Captain Unnikrishnan denied himself the opportunity to avoid colliding with the YUKON. See id. ("From the time the Gulfwind sighted the Stolt Jade on radar to approximately 2112 hours, the Gulfwind had both the time and the searoom to avoid the collision."). Thus, the violation of 19(b) is a further basis to find that the INCHCAPE 14 was at fault.

Rule 8 — Action to Avoid Collision

The INCHCAPE 14 also violated Rule 8, which requires action to avoid collision. 33 U.S.C. foll. § 1602 (R. 8). Among other things, Rule 8 requires that any action to avoid collision "be positive, [be] made in ample time and with due regard to the observance of good seamanship," and be "large enough to be readily apparent to another vessel observing visually or by radar. . . ." Id. (R. 8(a)-(b)). Accordingly, "a succession of small alterations of course and/or speed should be avoided." Id. (R. 8(b)). And, under Rule 8(c), "[i]f there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation." Id. (R. 8(c)). Any action "taken to avoid collision . . . shall be such as to result in passing at a safe distance" and "shall be carefully checked until the other vessel is finally past and clear." Id (R. 8(d)).

Despite these clear rules of the road, the INCHCAPE 14 failed to take action to avoid colliding with the YUKON. As noted, Captain Unnikrishnan claims he made radar contact with the YUKON as he approached buoy 12 (the collision occurred between buoys 11 and 12). The contact with the YUKON at that moment presumptively presented Captain Unnikrishnan with a risk of collision, something he was required to take action to avoid. However, all he did was reduce speed and alter his course "very slightly" to the starboard, thus ostensibly maintaining his course. In limiting his response to the obvious risk of collision, Captain Unnikrishnan forfeited valuable time and sea space that he could have used to avoid the YUKON. It bears recalling that unlike the YUKON, the INCHCAPE 14 was not required by her draft to even be in the channel. Thus, the simple and prudent thing for Captain Unnikrishnan to do at the moment he made radar contact with the YUKON, particularly given the foggy conditions, was to move to the starboard, just outside the channel. Whether he then ordered an all-stop or reduced speed to a few knots, Captain Unnikrishnan could have then better ascertained the precise location of the radar target and, if necessary, let the target pass him through the channel.

The Court recognizes that hindsight is 20/20 and appreciates the need to avoid the temptation of playing the role of a "Monday morning admiral." G G Shipping Co., 767 F. Supp. at 408-09. However, the scenario just described by the Court is precisely the one discussed in the Fourth Circuit's decision in United States v. M/V Wuerttemberg, 330 F.2d 498 (4th Cir. 1964). In that case, the court found fault in the actions of the Wuerttemberg for navigating the fogged-in channel without radar at an unsafe speed and not "well within her right-hand portion of the channel." Id. 502. However, because the Swerve had picked up the approaching Wuerttemberg on radar, she had an "obvious chance[] . . . to avoid the risk of collision." Id. at 503. As the court observed, "[i]t is said that in every narrow channel meeting situation, the pip of the approaching vessel on the radar's scope will indicate an apparent collision course until shortly before the passing is accomplished. . . ." Id. However, in that case, as here, the "narrow channel meeting was not the only alternative open to the Swerve." Id. On the Swerve's starboard side, "there were several hundred yards of open water for vessels of her draft. She could have gone well to her right and given the Wuerttemberg a wide berth." Id. Instead, as did the INCHCAPE 14, the Swerve "deliberately chose a close passage of the Wuerttemberg. . . ." Id. Based on this choice, made after radar contact, the court rejected the claim of the Swerve that her later efforts to avoid the Wuerttemberg were reasonable, holding:

[The Swerve's] last minute intention was said to have been to steer generally toward bell buoy 23, but then and earlier more radical movements to starboard were open to her without risk of collision or of running aground. Had she gone to starboard into shallower waters, but of ample depth for her, she could have anchored or maneuvered until the rapidly closing Wuerttemberg had passed.

Id. Thus, the court concluded, in language that applies to this case,

[w]hether . . . the Swerve's very unfortunate maneuvers after she sighted the Wuerttemberg are excusable, her earlier neglect of a safe passage is enough to hold her at fault. She needlessly elected a close passage in fog, knowing the Wuerttemberg was rapidly closing, apparently on a collision course, when, by a turn into safe waters to the right, she could have avoided all risk of collision.

Id. at 504.

The moral of the story of the Swerve is that "[w]hen safe means of avoidance of risk of collision are obviously and readily at hand, their neglect is inexcusable." Id. ³⁷ Courts have applied the preceding axiom in other cases involving vessels that ignore their ability (and duty) to avoid collision by steering far clear of oncoming vessels, particularly when the option of shallower waters is available. See Movible Offshore, Inc. v. M/V Wilken A. Falgout, 471 F.2d 268, 274 (5th Cir. 1973) ("[W]here one vessel, although acting in substantial compliance with the appropriate navigational rules, appreciates or should appreciate that an impending problem or risk of collision exists yet negligently fails to act to avert if, if she may safely do so, she may be held liable." (citing M/V Wuerttemberg, 330 F.2d at 498)); Nat'l Shipping Co. of Saudi Arabia, 147 F. Supp. 2d at 437-38 (finding Rule 8 violation where vessel, which was "in no way restricted in her maneuvering," "made just two slight alterations in succession for a total of 9 degrees" (citing M/V Wuerttemberg, 330 F.2d at 504)).³⁸

37 It must be noted, however, that the Wuerttemberg court also affirmed the district court's finding of fault by the Wuerttemberg, something that will be addressed more fully below in regard to the YUKON.

38 While not specifically addressing Rule 8, other courts have found fault where a vessel failed to take advantage of its ability to move to shallow waters to avoid a deep draft vessel. See Crawford v. Indian Towing Co., 240 F.2d 308, 310-11 (5th Cir. 1957) (holding that vessel was negligent for failing to make starboard turn to waters sufficiently deep for that vessel); Barge Poling Bros. No. 23, Inc. v. Namset, 429 F. Supp. 1315, 1322 (S.D.N.Y. 1977) (holding captain of tug erred when he did not move to Manhattan side of the East river, which was sufficient "for shallow draft vessels," thus "leaving the deep water free for deep draft vessels").

Applied to this case, it is clear that the INCHCAPE 14 was negligent in not taking advantage of its ability to make the simple move toward the shallow waters outside the channel once she made radar contact with the YUKON. Because she had that option (and the YUKON did not), the Court finds that the INCHCAPE 14 was negligent after making radar contact with another vessel, in failing to navigate further starboard than she did to the safe and shallow waters outside the channel. Had she done that, and also reduced speed even further, she would not have collided with the YUKON, Moreover, there is nothing in the record indicating that there was any danger to the INCHCAPE 14 from any vessels just outside the channel. Captain Unnikrishnan reported no other radar contacts, and apparently his lookouts spotted none. And, it is a fair inference that Captain Unnikrishnan did not believe the radar target to be outside the channel, or he would not have steered the INCHCAPE 14 toward that direction (albeit "slightly"). Thus, while Captain Unnikrishnan claimed that he transited the channel to avoid smaller fishing boats, that general concern was clearly trumped by the radar contact with another vessel ahead of him, and it was the risk of colliding with that vessel that should have immediately caused Captain Unnikrishnan to steer far clear of that threat.³⁹

39 The Captain's professed fear of fishing boats, as noted above, finds no corroboration in the record and, in fact, is undercut by the fact that he intended to exit the channel anyway at buoy 10, proceed parallel to the channel to the fairway buoy, and then set a course of 335° true to the Sirri oilfield. Because Captain Unnikrishnan never explained why there would be no fishing boats just outside the channel between buoy 10 and the fairway buoy, it is difficult to understand why there was a risk that they would be outside buoy 12.

Captain Unnikrishnan compounded his error when he ultimately steered the INCHCAPE 14, whether intentionally or accidentally, to the port side. As noted, by Captain Unnikrishnan's own admission, when he first made visual contact with the YUKON, she was off his starboard bow. This admission combined with Cargo Mate Davis's testimony confirms that the INCHCAPE 14 did not hug the starboard side buoys, but instead had veered well into the channel. How far over she was, and therefore how far to her port side the YUKON was, cannot be said with certainty. But what can be said is that Captain Unnikrishnan was not as far to the starboard side of the channel as he could have been, and that Captain Unnikrishnan was steering off course in a move that clearly would be unexpected to any vessel traveling inbound through the channel. This maneuver was a violation of Rule 8, as it could not remotely be viewed as action taken to avoid collision. See The Tokio Marine Fire Ins. Co. v. M/V Flora, No. Civ.A. 97-1154, 1998 WL 516110, at *5 (E.D. La. Aug. 18, 1998) (finding that vessel "failed to take action to avoid collision in violation of Rule 8 of the COLREGS by turning port into the [other vessel's] path at close distance"). In fact, the inexplicable and unexpected starboard-to-port heading of the INCHCAPE 14 was a major contributor to the collision. See Walker v. Sabine Towing Transp. Co., 399 F. Supp. 995, 996-997 (S.D. Ala. 1975) (vessel which "suddenly and for some unexplained reason, swung hard to starboard" found to be at fault, even though other vessel violated the narrow channel rule); The Newport News, 105 F. 389, 396 (4th Cir. 1900) (vessel which "emerged from the fog, moving at a rapid rate across the bow of the [other vessel]" found to be at fault).⁴⁰ Rule 35 — Fog Signals in Restricted Visibility

40 Related to the INCHCAPE 14's Rule 8 violations, is her failure to turn to starboard when Captain Unnikrishnan first made visual contact with the YUKON. Rule 14(a) provides that when vessels on nearly reciprocal courses are at risk of collision, "each shall alter her course to starboard so that each shall pass on the port side of the other." 33 U.S.C. foll. § 1602 (R. 14(a)). While the YUKON was off the starboard bow of the INCHCAPE 14, it cannot be said that the two vessels were not on a nearly reciprocal course. Thus, INCHCAPE 14 should have made starboard turn to avoid collision. Captain Unnikrishnan's "failure to observe [Rule 14(a)], due to fear and panic, is unfortunate but inexcusable." G G Shipping Co., 767 F. Supp. at 407.
Nor can Plaintiffs claim that the INCHCAPE 14's port-side turn was an action taken in extremis. "The in extremis doctrine provides a limited exception to the general rule of strict compliance with the rules of the road." Id. However, the vessel seeking relief from this rule must be "free from fault until the emergency arose." Bucolo, Inc. v. S/V Jaguar, 428 F.2d 394, 396 (1st Cir. 1970). As the INCHCAPE 14 "significantly contributed to the dangerous situation leading to the collision, violating several of the . . . Colregs, she cannot now avail herself of the in extremis doctrine." G G Shipping Co., 767 F. Supp. at 408.

Finally, the INCHCAPE 14 violated Rule 35, which requires that "[i]n or near an area of restricted visibility . . . [a] power-driven vessel making way through the water shall sound intervals of not more than 2 minutes one prolonged blast." 33 U.S.C. foll. § 1602 (R. 35(a)). Here, Plaintiffs concede that the INCHCAPE 14 failed to sound any fog signals. This admission "establish[es] a breach of Rule 35." Waterstand Marine, 1988 WL 78776, at *9. In response, Plaintiffs argue that the violation could not have contributed to the collision because Captain Wilson, even if he was advised of a fog horn sounded by the INCHCAPE 14, would have assumed that it was from outside the channel. The basis for this assertion is Captain Wilson's admitted reaction to two reports of engine sounds from Cargo Mate Davis. The problem with Plaintiffs' argument is that it assumes that the other vessels heard by Cargo Mate Davis were, in fact, in the channel. Yet, Cargo Mate Davis testified credibly, in the Court's view, as to the basis for his belief that the overhead vessels were outside the channel. Thus, Plaintiffs have failed to meet their burden of showing that the failure to comply with Rule 35 could not have contributed to the collision. The YUKON had a bow lookout by sight and hearing, and so the Court cannot conclude that the lookout would not have heard properly made fog signals and that this would not have allowed the YUKON to take evasive and timely action to avoid a collision. See The Edward E. Loomis, 86 F.2d 705, 708 (2d Cir. 1936) ("No one can be certain that her fog signals would not have been heard and heeded, though her passing signal was not."); The Papoose, 85 F.2d 54, 55-56 (2d Cir. 1936) (holding that although other vessel was "negligently navigated," vessel which failed to sound fog horn could not meet its burden of showing that its fault could not have contributed to the collision). 2. The YUKON's Liability

Believing, no doubt, that the best defense is a good offense, Plaintiffs spend a great deal of time pointing to the YUKON's fault for the collision. In their view, the YUKON violated Rules 2, 6, 7, 8, 9, 18, 19, 28, and 35. With some exceptions, Plaintiffs are correct because the YUKON also was at fault for the collision.

Rules 6 and 19(e) — Safe Speed and Conduct of Vessels in Restricted Visibility

The first issue is the YUKON's speed. Because of the fog, Rules 6 (Safe Speed) and 19 (Conduct of Vessels in Restricted Visibility) both govern the question of whether the YUKON was transiting the channel at a safe speed. As discussed above, the determination of what speed was safe for the YUKON depends on all the attendant circumstances in which she was traveling, including visibility, current, and vessel traffic. As Plaintiffs note, the cases suggest that one way to measure safe speed in foggy conditions is by reference to the "half-distance rule." This rule explains that the safe speed is one what would enable a vessel to "come to a standstill, by reversing her engines at full speed, before she could collide with a vessel which she could see through the fog." The Nacoochee, 137 U.S. 330, 339 (1890). Indeed, there is Second Circuit authority, cited by Plaintiffs, to the effect that "there cannot be the slightest hesitancy in concluding that there is a breach of the rule where the vessels have each navigated at a speed which is so fast that they cannot stop within the distances that they can see ahead." New York Cuba Mail, 16 F.2d at 947 (citing, inter alia, The Nacooche).

Other authority, however, suggests that even in the fog, the safe speed is that which is minimally necessary to maintain bare steerageway. See The Martello, 153 U.S. 64, 70 (1894); Polarus S.S. Co., 236 F.2d at 271. There is even a conflict about which of these two is the majority view. Compare Cities Servs. Oil Co. v. M/S Melvin H. Baker, 384 F.2d 911, 912 (3d Cir. 1967) ("Most cases . . . seem to require a vessel in dense fog to reduce its speed to the lowest point consistent with good steerageway.") with Polarus S.S. Co., 236 F.2d at 271 ("Even more frequently, the applicable rule has been said to be that no vessel should be operated in a fog at a speed which is so fast that she cannot stop within the distance her helmsman can see ahead."). Regardless, each of these guidelines has been described as a "`rule of thumb,'" see Union Oil Co. v. The San Jacinto, 409 U.S. 140, 145 (1972), which the Second Circuit has said need not "be applied willy-nilly," Polarus S.S. Co., 236 F.2d at 272. Instead, these rules are "but glosses on the basic rule requiring operation at a moderate speed, and, like it, they must be applied according to the particular circumstances of each case." Id. In particular, as the Supreme Court has observed, the half-distance rule applies when a vessel is traveling in foggy conditions knowing that "other ships might be proceeding on intersecting courses. . . ." The San Jacinto, 409 U.S. at 145.

Here, it must be remembered that the YUKON was transiting through the channel with few options. Given her size and relatively deep draft, the YUKON had no option to turn around and exit the channel when visibility dramatically decreased from the fog. Thus, at a minimum, the YUKON was under no obligation to stop all engines, reduce speed to below that necessary for bare steerageway, or attempt to make a significant course correction under the circumstances. See Hess Shipping Corp. v. SS Charles Lykes, 417 F.2d 346, 350 (5th Cir. 1969) (declining to apply the "half-distance" rule given size and draft of vessel in foggy channel), aff'd by an equally divided court, 424 F.2d 633 (5th Cir. 1969) (en banc). This is in contrast to the INCHCAPE 14, which had the option of leaving the channel and further reducing her speed.

On the other hand, it cannot be emphasized enough that masters must account for the effects of fog on their ability to safely navigate their vessels. For example, there is the "known propensity of fog to distort sounds so that determination of position, distance and course is uncertain. . . ." Villain Fassio E Compagnia v. The Tank Steamer E. W. Sinclair, 207 F. Supp. 700, 708 (S.D.N.Y. 1962). Thus, it was error for the YUKON to assume that the "vessel[s] she heard" soon before collision with the INCHCAPE 14 were "in any particular place or on any particular course." Id. More importantly, having heard these vessels, the YUKON was obligated then and there to "reduce her speed to the minimum at which she . . . [could] be kept on course." In re: Diamond B Marine Servs., Inc., No. 99-591, 99-984, 99-1346, 2001 WL 1164914, at *12 (E.D. La. Sept. 28, 2001). However, the YUKON made no such reduction of speed in response to the sound of these other vessels, let alone when the fog greatly reduced visibility. See Hellenic Lines, 1982 WL 579, at *10 (noting that vessel "proceeding in circumstances of limited visibility, such as dense fog, even though such vessel might `see' another vessel through the use of its radar, a vessel so proceeding is under a duty to reduce its speed when entering the fog, so as to avoid the possibility of a collision."). Indeed, while Captain Wilson ordered fog signals at 0957 hours, shortly after entering the channel, he made no reduction in speed for another twenty-nine minutes. And, in fact, that reduction in speed was pursuant to an instruction on her chart to reduce speed when the channel became shallower due to shoaling, and not because of the fog or the possibility of other vessels in or near the channel.

In the end, then, the Court finds that the YUKON violated Rules 6 and 19(e), because she did not reduce her speed to bare steerageway when conditions so required, which the Court finds was at 8 knots. While she may have reduced her throttle to 40%, and while this might have eventually led to a moderate and safe speed, none of these actions was taken when they should have been, i.e., when visibility worsened and when the possibility of other vessels in or near the channel was evident, thus leaving the YUKON traveling at a speed slightly higher than a safe speed. However, while it cannot be said that the YUKON's immoderate speed could not have contributed to the collision, the Court finds this rule violation to have been a minor cause, at best. Put another way, it is very unlikely that even if the YUKON had reduced her speed to 8 knots earlier than she had, that the collision could have been avoided. And, compared to the fault of the INCHCAPE 14, which had the first clear chance to avoid the risk of collision and which failed to do so, the YUKON's slightly immoderate speed was, relatively speaking, only a marginal contributor to the collision.

Rules 6(b) and 7(a) — Use of Radar to Avoid Risk of Collision and to Determine Safe Speed

Traveling through the foggy channel, the YUKON should have been protected from collision by her two radars. However, no officer aboard the YUKON ever reported spotting the INCHCAPE 14, despite the fact that she was an aluminum-hulled vessel that should have made a good radar target. See SS Fortaleza, 1991 WL 254571, at *8 (noting that "a steel-hulled vessel of 700 feet . . . [likely] would have appeared on the radar scope . . . even at long-range"). Either because of the above-discussed waveguide corrosion and antennae deterioration, or a failure to adequately monitor the radar, the Court finds that the YUKON violated Rules 6(b) and 7(b).⁴¹

41 Rule 6(b) requires each vessel traveling with operational radar to determine a safe speed based on, among other factors, the "efficiency and limitations of the radar equipment," 33 U.S.C. foll. § 1602 (R. 6(b)(i)), and the "constraints imposed by the radar range scale in use," id. (R. 6(b)(ii)). As previously discussed, Rule 7(b) requires each vessel to make "[p]roper use" of radar equipment to "obtain early warning of risk of collision." Id. (R. 7(b)).

Plaintiffs assert that evidence regarding the December 1999 assessment of the YUKON's radars demonstrates that they were "seriously defective." If true, this might alone violate the duty of good seamanship. See Hellenic Lines, Ltd., 1982 WL 579, at *8, *12 (holding that failure to maintain "functional radar" made the vessel "unseaworthy," and that the "deplorable state of the radars" was the proximate cause of collision); but see Davis, 510 F. Supp. at 1167-68 ("Since radar is not required for seaworthiness, it would appear to follow that a ship is not unseaworthy because it proceeds to sea without making repairs of the radar equipment on board."). However, while there was some corrosion of the waveguide and the antennae were deteriorated, there was insufficient evidence substantiating Plaintiffs' assertion that the radars were "seriously defective." For example, there was no evidence about what precise effect the waveguide corrosion had on the radar screens on board the YUKON. While water-induced corrosion in the waveguide may "act as an unwanted, premature, close-range reflector for . . . the strong transmitting RF energy" of the radar, and that might in turn "cause a white spot in the center of the display screen," there was no evidence that the corrosion reported in December 1999 caused the radar screens on the YUKON to "fade out," or to cause the screen to show only a "small white dot in the center." Deutsche Shell Tanker-Gesellschaft mbH v. Placid Refining Co., 767 F. Supp. 762, 770-71, 777 (E.D. La. 1991), aff'd, 993 F.2d 466 (5th Cir. 1993). In fact, the Court accepts the testimony that the radars were operational, and were used to track the YUKON's passage through the channel by marking the buoys. Thus, Plaintiffs have failed to demonstrate that the radars were inoperable, or even nearly inoperable. Indeed, even the emails discussing the December 1999 inspection noted that the primary impact of the waveguide corrosion was to the radar's ability to pick up small, non-metallic objects. Thus, the worst that can be said about the YUKON's radars was that they were not operating at optimal efficiency.⁴²

42 The deficiencies in the YUKON's radars were therefore not serious enough to warrant a finding that she was operating in violation of the International Convention for the Safety of Life at Sea, 1974 ("SOLAS"), 32 U.S.T. 47. Reg. V/12(h) states that ships of 10,000 tons gross tonnage "shall be fitted with two radar installations, each capable of being operated independently of the other . . ." Id. However, the Jebel Ali Port Regulations require that all vessels calling at the port "to be fitted with a fully operational radar." Because the Court finds that the radars, while not severely dysfunctional, were not "fully operational," the YUKON contravened this regulation. However, this finding does not add to the conclusion, discussed below, that the YUKON's failure to fully use her radars violates Rule 7(b).

Defendant's victory on this point, however, is a Pyrrhic one. If Defendant is right and the YUKON's radars were operational, then there is no explanation for their failure to pick up the INCHCAPE 14, other than the failure of the crew to properly monitor the radars. "If a vessel carries properly functioning radar equipment and she is in or approaching an area of known poor visibility, there is an affirmative duty to use the radar." Afran Transp., 274 F.2d at 474. That duty obligates the vessel to use the radar "intelligently and fully." Williamson Leasing, 616 F. Supp. at 1340. Even though there is no evidence of complete inattention by the radar's operators, there is ample evidence that at least one of these operators was multi-tasking and not paying undivided attention to the radar screens. Chief Mate Sattar admitted that he occasionally moved away from the 3-centimeter radar (the one more likely to pick up close-by targets such as the INCHCAPE 14) to visually monitor the buoys passed by the YUKON or to check the steering compass.⁴³ The record is barren of any information about how long these actions distracted Chief Mate Sattar from the radar screen he was assigned to monitor. However, the record is clear that nobody on the YUKON ever reported radar contact with the metallic INCHCAPE 14.⁴⁴ From this fact alone, it may be inferred that the YUKON's radars were not being used "intelligently and fully." See Turecamo Maritime, Inc. v. Weeks Dredge No. 516, 872 F. Supp. 1215, 1232 (S.D.N.Y. 1994) ("Use of [radar and other] equipment would have revealed the exact location of the 78 buoy and the 76 buoy marking the east side of the channel, or the distance of the CATHERINE from the eastern shore"); Arab Am. Oil Co., 633 F. Supp. at 669 ("[A] ship's radar properly managed and in proper working order could not have failed to pick up a steel structure the size of this platform at least six miles ahead in the circumstances shown in the evidence.").

43 At his deposition, Third Officer Peroha claimed to have kept his "eyes glued to the [10-cm] radar," but he also admitted that this was his first experience navigating solely by radar.

44 There were no waves or rain to cause sea return or to otherwise interfere with radar reception.

The failure to pick up the INCHCAPE 14 (whether because of impaired operability or negligent monitoring) is a violation of Rule 7(b). See Ocean Foods Boat Co., 692 F. Supp. at 1263 (finding violation of Rule 7(b) where crew members "failed to watch the radar as closely as they should have"). And, it cannot be said that this violation could not have contributed to the collision. On the contrary, had the YUKON picked up the INCHCAPE 14 on its radar, she could have taken action to avoid the risk of collision. See Complaint ofB.F. T. No. Two Corp., 433 F. Supp. 854, 871 (E.D. Pa. 1977) (noting that "the failure . . . to maintain a radar watch when the contents of waters ahead were uncertain amounted to fault and it contributed to the accident"); Moran Scow Corp. v. S.S. Boston, 342 F. Supp. 216, 240 (S.D.N.Y. 1972) ("Radar would have detected the positions of the tugs and scows and provided knowledge as to a safe course to follow."). Rule 9 — The Narrow Channel Rule

Plaintiffs also strenuously claim that the YUKON was on the port side of the channel just before colliding with the INCHCAPE 14. If true, this would violate Rule 9(a), which provides that a "vessel proceeding alone the course of a narrow channel . . . shall keep as near to the outer limit of the channel . . . which lies on her starboard side as is safe and practicable." 33 U.S.C. foll. § 1602 (R. 9(a)). Violation of this principle, also known as the "Narrow Channel Rule," is considered to be "a most serious statutory fault." The Standella, 108 F.2d 619, 620 (5th Cir. 1939); see also The Newport News, 105 F. at 393 (describing duty to steer to starboard side as "a cardinal rule"). Thus, it should come as no surprise that "[c]ourts have rigidly enforced this rule as an important safety regulation." Moran Scow Corp., 342 F. Supp. at 238.

At its core, the Narrow Channel Rule reflects the expectations of those that transit narrow channels. As the Supreme Court long ago observed, two vessels are "entitled to presume that the other . . . would keep to her own side," and that even "if temporarily crowded out of her course, would return to it as soon as possible. . . ." The Victory, 168 U.S. 410, 426 (1897); see also Penrod Drilling Co. v. Inland Oil Transp. Co., 561 F. Supp. 810, 815 (E.D. La. 1983) ("Presumptively, it is safe and practicable to navigate on the starboard side of the channel."). Because of this widely-held expectation, "[i]t has been stated that a vessel which proceeds on the wrong side of the channel must take at least to some extent, the risk of subsequent events and . . . the risk of her signals not being heard" Moore-McCormack Lines, Inc. v. S.S. Portmar, 249 F. Supp. 464, 469-70 (S.D.N.Y. 1966) (omitting internal quotations and citations). To violate this rule, a vessel need not be all the way over on the port side of a channel, merely crossing the centerline may be enough. See W. Pac. Fisheries, 730 F.2d at 1286 (noting that vessel violated rule when she "proceeded too close to the center line and then crossed over into the outbound lane" (omitting internal quotations)).

As detailed above, the Court finds that the YUKON, in fact, crossed the centerline of the channel and sheered to the port side of the channel, albeit slightly. This is a violation of Rule 9, as it was safe and practicable for the YUKON to be further to the starboard. See The Michael Tracy, 43 F.2d 965, 967 (2d Cir. 1930). As with other violations of the COLREGS, this finding shifts to Defendant the heavy burden of showing that the YUKON's fault could not have contributed to the collision. See Penrod Drilling, 561 F. Supp. at 815 ("The burden of proof is on the vessel found on the wrong side of the channel to show not merely that her fault might not have been one of the causes of the accident, but that such violation could not have contributed to the collision.").

To satisfy this burden, Defendant makes three arguments. First, Defendant claims that transiting the centerline, or at least attempting to transit the centerline, was as far to the starboard side that was safe and practicable. According to Defendant, the greatest risk Captain Wilson faced when he entered the channel was running the YUKON aground. To avoid this risk, Captain Wilson believed the safest and most practicable route was through the center of the channel. The claim finds support in the caselaw. As Judge Weinfeld noted, the Narrow Channel Rule is "not absolute" and need not be "rigidly and blindly followed in all cases." United States v. The J.A. Cobb, 182 F. Supp. 234, 238 (S.D.N.Y. 1959) (omitting footnote), aff'd, 283 F.2d 754 (2d Cir. 1960). Accordingly, it is not a violation of the Narrow Channel Rule to travel down the center of a channel, if necessary to avoid other dangers. See Universe Tankship, Inc. v. The Munger T. Ball, 157 F. Supp. 237, 239-40 (S.D. Ala. 1957) ("If the stern of the Munger T. Ball was at times extending over the centerline of the channel, it was due to a necessary and proper maneuver to counteract the effect of the current. This was not such a violation of the Narrow channel Rule . . . as to impose liability."). Under the circumstances, it was not error for the YUKON to attempt to transit on the centerline. This route was the safest way to avoid the risk of running the hefty YUKON in the ground, an event that would have had major environmental and political consequences.

However, the YUKON can be faulted for at least not erring toward the starboard side of the centerline. There has been no explanation of why any error to the port side was somehow safer or more practicable than leaning to the starboard side. Indeed, given the current, the gyro compass error, and the restricted visibility, it would have been prudent for the YUKON to undertake special precautions to ensure that she would not cross the centerline. Put another way, all else being equal, there would have been no more risk of running aground if the YUKON faded 50 to 100 feet to the starboard side of the channel than to the port side. Thus, Defendant's argument here fails to meet its burden under the Pennsylvania Rule.

Second, Defendant claims that Captain Wilson reasonably believed that the YUKON would be the only vessel transiting the channel. This belief, as discussed above, was hardly unfounded as it was based on Captain Wilson's prior experience in transiting the Jebel Ali channel on numerous occasions and his interpretation of the information provided by Port Control. However, Captain Wilson's perception that there would be no oncoming traffic, even if not irrational, does not excuse his obligation to follow the Narrow Channel Rule. To be clear, as just noted, the Narrow Channel Rule is not absolute, and there "may be customs that release a vessel from the statutory duty to keep to the right in a narrow channel. . . ." The Anglo-Saxon Petroleum Co. v. United States, 222 F.2d 75, 77 (2d Cir. 1955). "However, in order to give any custom the force of law there must be evidence that it is a definite, uniform and known practice. . . ." Id. While Captain Wilson's belief about the one-way transit of the channel may have been held in good faith, there is insufficient evidence that his view "prevail[ed] as a practice." Id. Thus, there is no basis in the law for the YUKON to have ignored the Narrow Channel Rule when she entered the channel on February 27, 2000.

Finally, Defendant argues that even if the YUKON was traveling on the port side of the channel, this was only a condition and not a cause of the collision. The true cause, Defendant contends, was the INCHCAPE 14's "unexpected and improper left turn towards YUKON, across the center of the channel." Defendant's position is supported by the law. The Second Circuit has observed that while the distinction between a "condition" and a "cause" of a collision is "not sound as formal reasoning," it does "represent an important difference in legal liability." S. Transp. Co. v. Dauntless Towing Line, 140 F.2d 215, 216 (2d Cir. 1944). This distinction

means that, when a vessel's position and proposed course is apparent to another vessel which must navigate to avoid her, it is of no consequence that this position and that proposed course is the result of the first vessel's fault, provided the other vessel makes her out in time to avoid her, and is so situated that she can do so by accommodating her own navigation. In short, the second vessel may not disregard an apparent danger merely because it resulted from the first vessel's fault.

Id.; see also Standard Oil Co. v. Black Diamond S.S. Corp., 122 F. Supp. 393, 397-98 (E.D.N.Y. 1954) ("It is well recognized that when a fault is shown to be a condition or circumstance of a collision rather than a cause of the collision, the vessel at fault will be exonerated."). Here, if the INCHCAPE 14 did, in fact, cross the centerline of the channel just before colliding with the YUKON, then YUKON's violation of the Narrow Channel Rule might be excused. See Melvin H. Baker, 384 F.2d at 913 (holding vessel at fault where she "turned a safe passage into collision by suddenly veering . . . across" the second vessel's bow). In support of this point, Defendant points to the Supreme Court's decision in The San Jacinto, which excused a vessel from fault where it could not anticipate a tug's `'totally unorthodox maneuver in darting across . . . a channel." 409 U.S. at 146. However, the weight of the evidence is that the INCHCAPE 14 collided with the YUKON before she reached the centerline and while the YUKON was slightly to the port side of the channel. Therefore, Defendant's reliance on The San Jacinto is misplaced because the vessels in that case "were proceeding on opposite sides of a well-defined and relatively narrow channel." Id. ⁴⁵

45 No more helpful to Defendant is Otal Investments, in which a vessel was found to be at fault for its starboard turn in a close-quarters situation. 2006 WL 14512, at *7. Defendant argues that the YUKON could not have anticipated the INCHCAPE 14's turn to port. However, it equally could be said that the INCHCAPE 14 could not have anticipated that the YUKON would be on the INCHCAPE 14's side of the channel.

What makes the YUKON's position in the channel closer to a condition, and not a cause of the collision, is the INCHCAPE 14's prior observation of the YUKON on her radar. When the INCHCAPE 14 picked up the YUKON on her radar, it was, or should have been, evident to Captain Unnikrishnan that a "dangerous situation existed." Standard Oil Co., 122 F. Supp. at 398 (first vessel heard fog signal of second vessel). Indeed, given the fog, the narrow channel, and just the single radar contact with the YUKON, the INCHCAPE 14 could presume only that there was a risk of collision unless and until the INCHCAPE 14 could ascertain the YUKON's position, speed, and course. See Nat'l Shipping Co., 147 F. Supp. 2d at 438 (uncertainty about radar target's course and intentions created a presumption of risk of collision); Standard Oil Co., 122 F. Supp. at 398 (noting that "faults" of first vessel do not excuse duty of second vessel "to stop as prescribed by statute for the ascertainment of the second's position and surrounding circumstances and cautious navigation based thereon"). At that moment, the INCHCAPE 14 had an obligation to do all that she reasonably could to ascertain the risk of collision with the YUKON. Instead, all the INCHCAPE 14 claims to have done is reduce her speed to 6 knots and veer slightly to starboard. This was negligent conduct. Nor is it "an immaterial fault which may be overlooked," as it would be "tantamount to saying, `That other fellow doesn't know what he's doing, wherever he is, and I'm holding a true course so I'll keep right on going. Stopping won't be of any use, since I won't learn anything or change my course by so doing.'" Standard Oil Co., 122 F. Supp. at 398. Thus, while the INCHCAPE 14 might claim to have been surprised at making visual contact with the YUKON on her side of the channel, and while that surprise might have led her to panic and attempt to avoid collision by turning to port, the INCHCAPE 14 had ample time, having earlier observed the YUKON on the radar, to take action that would have avoided the surprise encounter with the YUKON.

Still, the Court concludes that Defendant has not met its heavy burden of showing that the port-side transit of the YUKON could not have contributed to the collision. In reaching this conclusion, the Court stresses that it does not find that the YUKON's port-leaning path to be a major or even moderate contributor to the collision. However, even that finding does not allow the YUKON to be clear of fault under the Pennsylvania Rule.

Rule 8 — Action to Avoid Collision

Plaintiffs also contend that the YUKON violated Rule 8 by failing to take action to avoid a collision. This argument has two subcomponents. The first is Plaintiffs' claim that the YUKON should have stopped or reversed her engines after hearing the other vessels off to the port side about three minutes before collision. However, as noted above, the YUKON was not obligated to come to a stop in the narrow channel, let alone make any dramatic changes in her course. If she came to a stop, or reduced speed to below bare steerageway, the YUKON might have run aground. The most that the YUKON was required to do in response to hearing the other vessels (neither of which was the INCHCAPE 14) was to reduce speed to bare steerageway, as required by Rule 6, which the Court already has found the YUKON failed to do. The second component is that the YUKON failed to stop or go full astern on her engines when the YUKON learned of the presence of the INCHCAPE 14 dead ahead. However, Captain Wilson did bring the engines to all stop (even if for brief period) when he heard Cargo Mate Davis report that the INCHCAPE 14 was dead ahead. In any event, even if the engines were not ordered all stopped, the Court finds that the YUKON could not have avoided collision given that she had learned about the INCHCAPE 14's close-by position just thirty seconds before collision.

Rules 3(h), 18, 28, and 35 — Vessel Constrained by Her Draft

Plaintiffs claim that the YUKON committed other negligent acts that make her further at fault for the collision. First, Plaintiffs claim that the YUKON was a "vessel constrained by her draft," under Rule 3(h), and, therefore, required by Rules 18 and 28 to undertake "particular caution," and by Rule 35 to have used different fog signals than she did. Rule 3(h) defines a "vessel constrained by her draft" as a "power-driven vessel which because of her draft in relation to the available depth and width of water is severely restricted in her ability to deviate from the course she is following." 33 U.S.C. foll. § 1602 (R. 3(h)). Under Rule 18(d)(ii), "[a] vessel constrained by her draft shall navigate with particular caution having full regard to her special condition." Id. (R. 18(d)(ii)). Under Rule 28, a vessel constrained by her draft is permitted (but not required) to exhibit certain lights signaling her status. Id. (R. 28). Finally, under Rule 35(c), a vessel constrained by her draft, instead of sounding at intervals of not more than two minutes one prolonged blast, shall sound one prolonged blast followed by two short blasts. Id. (R. 35(c)).

The sole basis for Plaintiffs' claim in this regard is the testimony of their expert, Captain Burgess. However, Captain Burgess's view did not withstand even minimal scrutiny on cross-examination as he admitted that the master of a deep-draft vessel has the option of claiming the "constrained by draft" privilege. Here, it is undisputed that Captain Wilson did not use the required signal to invoke the privilege. Captain Burgess attempted to discount this fact by claiming that Captain Wilson implicitly invoked the privilege by "maintain[ing] that there were no other ships who would come in here because we are a big vessel." Apparently, Captain Burgess's view is that because Captain Wilson believed that Port Control indicated to him, and because his experience led him to believe, that only the YUKON would be transiting the channel, he was operating the YUKON as a vessel constrained by her draft. Yet, what Captain Burgess believes was in Captain Wilson's mind is of no legal consequence here. The bottom line is that the YUKON was not operating as a vessel constrained by her draft, did not signal to other vessels that she was so operating, and was under no obligation to do so. Plaintiffs failed to cite any legal authority to the contrary.

Moreover, as was persuasively explained by Captain Hickey, Rule 18 was not intended to apply to deep-draft vessels operating in buoyed channels, because such vessels are presumed to be constrained in those waters. Instead, the Rule was promulgated to govern situations between vessels operating outside buoyed channels where, for example, there is a crossing situation in a larger body of water which nonetheless involves a vessel constrained by her draft. In such a circumstance, the deep-draft master may invoke the privilege, in large part to alert the stand-on vessel of the constraints and help the vessels to avoid collision. However, a deep-draft vessel is not required to invoke the privilege. Moreover, even if the YUKON should have sounded a different fog signal, it can be said that the failure to have sounded such a signal would not have avoided collision as the INCHCAPE 14 failed to post a lookout who could have heard such a signal. Indeed, the INCHCAPE 14 did not hear the signal that the YUKON did sound (in compliance with Rule 35(a)).⁴⁶ Other Claims of Negligence

46 In addition, even if the YUKON was a vessel constrained by her draft, the only other obligation she might have had was to reduce speed. Because this Rule, and her failure to follow it, already has been accounted for in finding the relative fault of the two vessels, there simply is no basis to find that any violation of Rules 3(h), 18(d)(ii), and 28, were independent causes of the collision.

Finally, Plaintiffs claim that the YUKON was at fault for plotting its GPS positions at six-minute intervals, and for using British Admiralty chart 3739. The Court is unpersuaded. On the first point, the Court found far more credible the testimony of Captain Hickey that the YUKON's crew used the GPS to navigate the YUKON by informing Captain Wilson of current position information, instead of taking time to mark where the vessel had been. Also, in addition to plotting the position of the YUKON within the channel every six minutes, the YUKON's crew also marked the passage of each buoy, which itself constitutes a fix. Thus, the YUKON was plotting the fixes of its position less than every three minutes (thirteen fixes between 0956 and 1031 hours). Under the circumstances, therefore, Plaintiffs have failed to substantiate their claim, either in fact or in law, that the YUKON was negligent in the frequency with which her fixes were plotted.⁴⁷

47 Plaintiffs also claim that the infrequent plotting was independently negligent when combined with the gyro error. The gyro error is discussed above in connection with the YUKON's violation of Rule 9, but the Court finds that any such error is not by itself negligence. Instead, it was a subset of a category of negligent behavior, namely, the YUKON's failure to stay at or on the starboard side of the centerline of the channel.

Regarding the second point, the Court finds unpersuasive Plaintiffs' contention that the YUKON's navigator's choice of British Admiralty chart 3739 was in error. Plaintiffs' argument is that the navigator should have used U.S. chart 62499, which is almost twice the scale of British Admiralty chart 3739 (1:30,000 compared to 1:50,000). According to Plaintiffs, a larger-scale chart would have permitted more accurate plotting, which in turn would have permitted the YUKON to more carefully track the centerline of the channel. Putting aside the brazenness of the claim, given the INCHCAPE 14's failure to use any chart or to plot any of her fixes, the Court finds Plaintiffs' position to be without merit. Navigator Talcott testified that he used the British Admiralty chart because it was viewed as more accurate and easier to use than the U.S. chart. In fact, both Captain Wilson and Captain Hickey testified that the British Admiralty chart was more recent than the U.S. charts. This may explain why the Jebel Ali Port Authority listed British Admiralty chart 3739 as one of its recommended charts. In any event, the most that can be said for the unused U.S. chart is its larger scale. There is no evidence that the British Admiralty chart was inaccurate, outdated, or otherwise not suitable. By itself, however, the relatively smaller scale of British Admiralty chart 3739 does not support a finding of negligence. See The E.H. Blum, 74 F. Supp. 516, 525 (E.D. Pa. 1947) (rejecting claim of negligent failure to use larger scale chart, the court found that "the chart used by the Master . . . was accurate and was designed for use in the waters in which he was navigating[,]" and had been used before by the Master); The Temple Bar, 45 F. Supp. 608, 615 (D. Md. 1942) ("Although a small scale chart and not as complete in all respects as the latest United States chart, we find from the weight of the credible evidence it was entirely adequate for safe navigation. . . ."); The Iristo, 43 F. Supp. 29, 38 (S.D.N.Y. 1941) (holding that smaller scale, but accurate chart was "reasonably sufficient for . . . safe navigation[,]" even though there were other "charts of larger scale" available).

C. Proportionate Liability

Because the Court finds that both vessels were at fault, the remaining question is the degree of blame assigned to each. In making this determination, the Court has considered the relative culpability of each vessel (defined by the quality of the errors), and not the level of causation assignable to each vessel. See Maritrans Operating Partners, 800 F. Supp. at 144. Given the nature of the negligence described above, the Court finds that the INCHCAPE 14 is by far more culpable. In particular, the Court finds that the INCHCAPE 14 violated Rules 2, 5, 6, 7, 8, 19 and 35. The INCHCAPE 14 was traveling at an unsafe speed (even after allegedly slowing to 6 knots after making radar contact with the YUKON) and did not take the simple steps of posting a lookout on the bow and sounding a fog horn; Plaintiffs' failure to take these basic, prophylactic measures is inexplicable given the foggy conditions in the channel. Worse, and in the Court's view, the most serious fault of the day, was the INCHCAPE 14's failure to undertake reasonable measures to avoid even the risk of collision when the INCHCAPE 14 made radar contact with the YUKON. At that moment, the INCHCAPE 14 had available to her several options to ascertain the risks of collision and avoid them. Yet, she ostensibly maintained her course, even though she alone had the option of leaving the channel, and she made no follow-up efforts to monitor the YUKON's course, speed, or location on her radar. It was the collection of these negligent acts that ultimately left the INCHCAPE 14 in the precarious position of steering into the YUKON (and, in fact, being off the YUKON's starboard bow) and making the unexpected port turn.

On the other hand, the YUKON is not blameless. She too failed to travel the fogged-in channel at a safe speed, as she failed to reduce her speed at all in response to the fog or the contact by hearing with two vessels believed to be near the channel. Moreover, while the INCHCAPE 14 failed to use her radar to follow-up on the single contact with the YUKON, the YUKON's radars, either because of corrosive damage or inattentive monitoring, failed even to pick up the INCHCAPE 14. Plus, the YUKON did veer slightly to the port side of the centerline of the channel just before colliding with the INCHCAPE 14. Thus, the YUKON violated Rules 6, 7, 9, and 19. However, all of these errors pale in significance to the errors committed by the INCHCAPE 14. Thus, the Court finds that the INCHCAPE 14 is 75% responsible for the collision and the YUKON is 25% responsible. See SS Fortaleza, 1991 WL 254571, at *10-11 (finding vessel that failed to post lookout, make full use of radar, and made improper port turn to be 75% at fault); G G Shipping, 767 F. Supp. at 407, 412-13 (assessing 80% responsibility to vessel that did not post a lookout and made a sudden turn to port "directly into the path" of the oncoming vessel, even though the oncoming vessel also failed to post lookout or fully use radar); Pac. Bulk Carriers, Inc. v. M.V. Sadoharu Maru, 493 F. Supp. 192, 199-200 (S.D.N.Y. 1979), aff'd and modified by, 639 F.2d 72 (2d Cir. 1980) (finding vessel that failed to post lookout, sound fog horn, and to take action to avoid risk of collision to be 100% at fault, even though other vessel was navigating in wrong lane of a traffic separation scheme). D. Plaintiffs' Damages Repair Costs

The Parties agree that the INCHCAPE 14 underwent repairs and was out of service from February 27, 2000 through July 5, 2000. The Parties have further stipulated that the cost of salvage, repairs, and related expenses was $1,374,654.46. This total is derived from ISS' payment of $31,612 in uninsured repair and survey costs, as well as its $10,000 deductible, and Qater Insurance's payment of $1,333,042.46, which represents the balance of the insured expenses under the INCHCAPE 14's marine hull and machinery insurance policy. Thus, in dispute are the uninsured damages allegedly incurred by Plaintiffs in the form of lost profits.

Lost Profits

The owner of a vessel is entitled to recover profits lost during the vessel's detention pending collision repairs if the owner can show that "profits have actually been, or may be reasonably supposed to have been, lost, and the amount of such profits is proven with reasonable certainty." The Conqueror, 166 U.S. 110, 125 (1897) (denying demurrage for a pleasure boat); see also CTIInt'l, Inc. v. Lloyds Underwriters, 735 F.2d 679, 683 n. 5 (2d Cir. 1984) (discussing The Conqueror). Stated most broadly, the measure of recovery for lost profits — also termed "detention" or "demurrage" — "is `the amount the vessel would have earned in the business in which she has been customarily employed.'" Bouchard Transp. Co. v. Tug Ocean Prince, 691 F.2d 609, 612 n. 2 (2d Cir. 1982) (quoting Moore-McCormack Lines, Inc. v. Esso Camden, 244 F.2d 198, 201 (2d Cir. 1957)). While the courts are not to speculate about the quantum of lost profits, see Demetrius Maritime Co. v. S/T Connecticut, 463 F. Supp. 1108, 1111 (S.D.N.Y. 1979), any attempt to calculate such damages "involves a supposition based on inferences from events which did occur," and "[n]o such supposition can be certain[,]" Weeks Dredging Contracting, Inc. v. B. Turecamo Towing Corp., 482 F. Supp. 1053, 1058 (E.D.N.Y. 1980).

Vessels engage in myriad trades on the water and the circumstances — as well as the measure — of their losses while off the water can be equally varied. The district court, as trier of fact in admiralty, is allowed "[a] wide range of judgment" in determining the measure of a shipowner's detention damages. Brooklyn E. Dist. Terminal v. United States, 287 U.S. 170, 176 (1932); see also Turecamo Maritme, Inc., 872 F. Supp. at 1233 (noting that district courts "maintain wide discretion in ascertaining the measure of detention damages"). For example, detention damages may be shown by proof of "the loss of a specific charter." Skou v. United States, 478 F.2d 343, 346 (5th Cir. 1973); accord The Ames Carroll No. 20, 66 F.2d 413, 415 (2d Cir. 1933) (allowing recovery based on rate of oral charter established prior to collision under which, but for collision, vessel would have proceeded to retrieve additional cargo and noting that "we see no reason why the wrongdoer should not take his chances that the boat was on a long engagement under a seasonal charter'). Detention damages also may be calculated by the market price of a comparable vessel. See The Conqueror, 166 U.S. at 127 ("The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market."); The Potomac, 105 U.S. 630, 631-32 (1881) ("When there is a market price for [the vessel's use], that price is the test of the sum to be recovered."); Compania Pelineon de Navegacion v. Texas Petroleum Co., 540 F.2d 53, 55-56 (2d Cir. 1976) (declining to limit value of lost use to rate of charter in effect at time of collision and holding that plaintiff vessel was entitled to damages based on market for long-term time charters or short-term spot voyage charters at time vessel came off-charter after charterer exercised extensions due to the collision); Esso Camden, 244 F.2d at 201 ("The measure of a ship's demurrage is the amount the vessel would have earned in the business in which she has been customarily employed."). Finally, detention damages may be determined by the vessel's average daily earnings. See The Conqueror, 166 U.S. at 127 ("In the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is a proper basis for estimating damages for detention, and the books of the owner, showing her earnings about the time of her collision, are competent evidence of her probable earnings during the time of her detention."); The Potomac, 105 U.S. at 632-33 (holding same and allowing recovery based on the vessel's average profits for the six and one-half months before the collision); Moore-McCormack Lines, Inc., 244 F.2d at 201-02 (awarding detention damages based on average daily earnings over period of pre-collision voyage, collision voyage, and post-collision voyage).⁴⁸

48 This method has come to be known as the three-voyage rule, although it is not rigidly applied where one or more of the voyages is not representative due to, for example, changing market circumstances. See Esso Camden, 244 F.2d at 201 n. 3; The Gylfe v. The Trujillo, 209 F.2d 386, 389 (2d Cir. 1954) (excluding pre-collision voyage because of market's subsequent decline).

Each of these measures of lost profits is predicated on the existence of a market for the vessel's services, otherwise there would be no causal link between the collision and the profits lost, no matter the amount. Thus, where a vessel is shown to be "active in a ready market at the time of the collision . . . for her loss of potential earnings she is entitled to reparation." Esso Camden, 244 F.2d at 201. As to the fact of lost profits, the shipowner's burden of proof is such that:

It is not necessary for him to show by direct evidence that he would have employed his vessel or his property during the period in such a way that earnings would have accrued to him. In many cases this would necessitate proving his intention at the time, and this might be impossible. It suffices if he shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would probably have availed himself of it.⁴⁹

The North Star, 151 F. 168, 175 (2d Cir. 1907); see also The Gylfe, 209 F.2d at 389 (finding no error in special commissioner's determination that "`there was a charter market for tankers of the Gylfe's general type,' `that there were profitable charters available during the period in question and that the opportunity to use the Gylfe would probably have been availed of by her owner.'").

49 Defendant overstates Plaintiffs' burden when it insists that "[w]ithout evidence of contract or charter demonstrating future work, any . . . awards for lost-use damage `would rest only upon surmise and speculation.'" (Def.'s Post-Trial Br. at 27 (quoting Skou, 478 F.2d at 345)). It is true that the shipowner in Skou made no showing as to subsequent charter opportunities, but that was not the Fifth Circuit's reason for remanding the case for further proof of the shipowner's actual loss. In fact, in describing the shipowner's burden of proof on demurrage claims, the court pointed out that "[t]he requirement that a shipowner offer proof of loss is not equivalent to a requirement that he prove the loss of a specific charter at a definite time and place." Skou, 478 F.2d at 346. The court found that the shipowner failed to meet a lesser burden of showing "the existence of a market" of any kind for its vessel. Id. at 346; cf. Weeks Dredging, 482 F. Supp. at 1059 ("[I]t would be unreasonable to deny recovery unless Weeks showed the loss of a specific contract. There was undoubtedly dredging work available in the market.").
In arguing that Plaintiffs' detention damages should be limited to the forty-nine days allegedly remaining on ISS' contract with Total Sirri, Defendant professes to concede that shipowners may recover those "profits that would have been realized on the voyage in which it suffered loss." (Def.'s Post-Trial Br. at 29 (citing The Umbria, 166 U.S. 404, 422-23 (1897))). However, as Plaintiffs pointed out in their summation, Defendant relies primarily on authority discussing the profits owed in case of total loss of a vessel. The Umbria was such a case, involving the sinking of the French IBERIA upon collision with the British UMBRIA off the coast of Long Island. Holding that "in cases of total loss the recovery of . . . [lost] profits is limited to the voyage which the vessel is then performing . . . [,]" The Umbria, 166 U.S. at 422, the Court distinguished such cases from partial loss cases, where "the probable net profits of a charter may be considered . . . where the question is as to the value of the use of the vessel pending her repairs[,]" id. at 421; see also The City of Alexandria, 40 F. 697, 699 (S.D.N.Y. 1889) (comparing calculation of damages in case of total loss, which "is the value of the vessel with her net freight upon the pending voyage," to that in a partial loss case, which is the "value of use" that "depends on the business in which" the damaged vessel is "engaged").

Where a ready market can be shown, proof of a charter offer made prior to the collision but abandoned, because of the vessel's detention may "fairly represent[] . . . [the vessel's] market value during the detention period . . ." The Gylfe, 209 F.2d at 390; see also Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995, 1009 (5th Cir. 1984) (noting that "the contract rate for the vessel is a guide for measuring lost income of the vessel owner"), modified, 753 F.2d 378 (5th Cir. 1985) (per curiam). In the case of The Gylfe, the court reversed a commissioner's application of the three-voyage rule and found that the appropriate measure of detention damages was the daily profit rate on a proposed charter. 209 F.2d at 390. Based on proof that the Gylfe, a Norwegian flag vessel, was "continuously employed" with the exception of brief periods between charters from February 22, 1948 through the commencement of its post-detention charter on July 13, 1948, and that no Norwegian ships were laid up for lack of work in 1947 or 1948, the court found that "there was a market for tankers of the Gylfe's type and the libelant would probably have availed itself of the opportunity to charter her." Id. at 389; cf. Todd Erie Basin Dry Docks, Inc. v. The Penelopi, 148 F.2d 884, 885-86 (2d Cir. 1945) (finding substantial evidence of owner's ability and willingness to charter his vessel). Attempting to quantify the probable profits, the court noted in The Gylfe that the post-collision charter market was rapidly declining, such that the average daily profits of the pre-collision voyage would tend to exaggerate the probable lost profits. As "it [was] highly probable that the offeror's bid would have been accepted in view of the falling market," the court concluded that the proposed charter rate was the most representative measure of the Gylfe's lost profits. That this figure was within thirty dollars of the daily average of the Gylfe's actual earnings on the collision and post-collision voyages further persuaded the court of its accuracy. The Gylfe, 209 F.2d at 389.

The question presented by Plaintiffs' claim for detention damages is whether proof of a probable charter opportunity and its acceptance meets ISS' burden as to either the fact or the amount of the INCHCAPE 14's damages. Plaintiffs argue that after exercising its optional extensions under the September 1, 1999 charter, Total Sirri would have renewed its contract with ISS by entering into a second charter for the services of the INCHCAPE 14. They insist that this second charter would, in turn, have been extended through October 29, 2000. Relying almost entirely on this measure of the INCHCAPE 14's lost profits, Plaintiffs did not offer any overarching evidence concerning the INCHCAPE 14's value on either the time charter market or the spot market. Although not offered in support of an average daily earnings theory of recovery, there is evidence in the record of the INCHCAPE 14's daily earnings on the charter in place at the time of the collision, and on the spot market following the detention period.

The various tests and measures of lost profits are not inflexible or insensitive to the circumstances wrought by a particular collision. See Brooklyn E. Dist. Terminal, 287 U.S. at 174-75 ("The disability of a vessel will not sustain demurrage at the rate of the value of her hire unless an award at such a rate can be seen to be reasonable when the disability is viewed in the setting of the circumstances. . . . Only then indeed can we know whether the interference with profit or enjoyment is to be ranked as substance or as shadow."). As noted, however, "[t]he damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs." The Conqueror, 166 U.S. at 127 (noting as example of speculative damages that "if a vessel employed upon the Lakes should receive damages by collision occurring just before the close of navigation, and she were repaired during the winter, no demurrage could be allowed, since no vessel upon the Lakes can earn freight during the winter"). On the other hand, "`[t]he rule which precludes the recovery of uncertain damages

III. CONCLUSION

The Court concludes that 75% of the responsibility for the collision rests with the INCHCAPE 14, and that 25% rests with the YUKON. Thus, the Court directs that judgment in favor of Plaintiffs shall be as follows: Plaintiff Qatar Insurance Company is to recover (25% of $1,333,042.46) for salvage/removal, repairs and related expenses; Plaintiff Inchcape Shipping Services is to recover (25% of $305,099) for lost profits and (25% of $41,612, i.e., $10,000 + $31,612) for salvage/removal, repairs, and related expenses. The Clerk of the Court is directed to close this case.

SO ORDERED.