This case involved a collision between two vessels in the harbour at Kure, Japan. It raised an issue concerning the application of the presumption of fault rule formulated in The Pennsylvania 86 US (19 Wall) 125, 22 L Ed 148 (1874) (the Pennsylvania rule), to collisions in foreign waters. The vessels involved were the Kinsei-Go, a Japanese vessel owned and operated by Ishizaki Kisen Co Ltd (the plaintiff), and the J-3793, owned by the United States and operated by the Department of the Army. The plaintiff filed this action for damages, and the United States counter-claimed. The case was tried in admiralty solely on the issue of liability. The District Court, applying Japanese law, held both vessels at fault and, pursuant to the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels (the Collision Convention 1910), to which Japan was a signatory, but the United States was not, apportioned the fault and liability 3/4 to the Kinsei-Go and 1/4 to the J-3793.

The United States appealed the apportionment of 1/4 of the fault to the J-3793. The District Court placed the burden on the plaintiff to prove that the violation of port rules by the J-3793 had contributed to the collision. The plaintiff failed to meet this burden, but contended that no such burden should have been placed upon it, and that under the Pennsylvania rule, the burden should have been placed on the United States to show that its failure to fly the international call sign could not have been the cause of the collision. The plaintiff asserted that the failure to meet this burden would require the apportionment to the J-3793 of greater than 1/4 fault and liability. The United States argued that the Pennsylvania rule did not apply to the facts of this case.

Held: Appeal allowed.

There is no doubt that a collision in foreign territorial waters is governed by the law of the place of the collision. This jurisdiction usually has the most significant relationship to the occurrence and the parties. The parties recognise this, and have devoted much time to determine the meaning of art 6 of the Collision Convention 1910, which Japan has signed, which abolishes 'legal presumptions of fault'. Both parties then framed the issue as to whether this Convention abolishes the Pennsylvania rule. To determine whether the Pennsylvania rule should be applied in this case, it is necessary to examine the principal purposes of the rule. The Court finds that the purpose of the rule is not sufficiently compelling to require its application to these facts. There is no evidence that Japanese maritime law ever contained a rule similar to the Pennsylvania rule, and, in any event, any such rule would not have survived the Japanese adherence to the Collision Convention 1910.

Turning to Japanese law, the law of the place of collision, it was necessary to determine whether the Pennsylvania rule is a part of that law. The Court began by observing that the parties have not established Japanese law, beyond pointing out that Japan is a signatory to the Collision Convention 1910. It has not been proved, for example, that Japanese law has at any time embodied the Pennsylvania rule or its equivalent.

There is a difference of opinion regarding whether the English version of art 6 of the Collision Convention 1910 constitutes a proper translation of the official French text of the Convention. The expression 'legal presumptions of fault' is an English translation of the French expression 'présomptions légales de faute'. Some scholars insist that the proper translation of the French is 'statutory presumptions of fault', so that art 6 of the Collision Convention 1910, correctly translated, would read: 'There shall be no statutory presumptions of fault in regard to liability for collision'. Thus translated, a judge-made Japanese version of the Pennsylvania rule would survive the Convention because it is not a statutory presumption, but rather created by judges to assist them in deciding cases.

The Court believes that art 6 is addressed to presumptions such as the Pennsylvania rule without regard to whether they rest on judicial or legislative authority. Consistency in the interpretation of art 6 requires this result, because such presumptions in some nations may be contained in statutes, while in others in the opinions and judgments of courts. To interpret the Convention to require the repeal of a statutory presumption, but not one different in substance, derived from case law, irrationally enhances the source of the presumption at the expense of uniformity in the understanding and application of the Convention. It does not follow from this that art 6 is intended to make inoperative all presumptions. Some are not presumptions 'in regard to liability for collision'. They do not affect liability in the strong and direct way that the Pennsylvania rule does. Once more, it is essential to recognise that the Pennsylvania rule more resembles a rule of substantive law than it does a mere procedural rule designed to expedite judicial proceedings. The latter rules survive art 6. The Pennsylvania rule, on the other hand, establishes an almost insurmountable burden of proof that virtually ensures that some liability will be imposed upon the ship that is charged with such a burden. It strains reason to insist that it is not a legal presumption of fault 'in regard to liability for the collision'. Because the Court believes that art 6 is not consistent with the continued existence of a Japanese version of the Pennsylvania rule, the Court is prepared to hold that the law of the place of the collision, Japan, presently does not contain the Pennsylvania rule or its equivalent.