On 14 December 2002, three vessels, the M/V Kariba (the Kariba), the M/V Tricolor (the Tricolor) and the M/V Clary (the Clary) were navigating in the international waters of the English Channel off the coast of Dunkerque, France, and were approaching an intersection in a Traffic Separation Scheme (TSS). On the night in question, the fog was thick and visibility was low. The Kariba was proceeding westward at about 16 knots. The Tricolor was also proceeding westward at 17.9 knots, one-half mile to the starboard aft of the Kariba, and in the process of gradually overtaking the Kariba. The Clary, meanwhile, was moving northward at 13 knots, on a collision course with the Kariba. The Kariba altered its course, seeking to avoid a collision with the Clary. However, it was unaware of the proximity of the Tricolor and struck the port side of the Tricolor, causing the Tricolor to capsize and sink. There were no human casualties.

Otal Investments Ltd, the owner of the Kariba, filed a complaint for exoneration or limitation of liability with respect to claims against it that arose from the collision between the Kariba and the Tricolor. In addition, numerous claimants filed claims against the Kariba, seeking damages for the loss of their cargo, which had sunk along with the Tricolor. The Kariba impleaded the Clary and the Tricolor as third-party defendants.

The Southern District Court of New York found that the Kariba was solely liable for the collision. However, the Second Circuit Court of Appeals (see Otal Investments Ltd v M/V Clary (CMI351)) found that the Kariba, the Tricolor and the Clary each violated the Convention on the International Regulations for Preventing Collisions at Sea (the COLREGs), and that each vessel committed at least one violation that was causative of the collision. The Second Circuit then remanded the case to this Court: (1) to decide whether the Tricolor’s speed was a proximate cause of the collision; (2) to determine each vessel’s relative culpability; (3) to determine the relative extent to which each vessel caused the collision; and (4) to allocate liability among the three vessels based on their relative culpability and relative causative role.

Held: The Tricolor is culpable for two unsafe acts, unsafe overtaking and excessive speed, which violated COLREGs arts 6, 13, 16, 19.b. Moreover, each of the unsafe acts of the Tricolor was a cause of the collision.

The Clary is culpable for two omissions, the failure to keep a proper lookout and the failure to take avoiding action promptly, which violated COLREGs arts 2.a, 5, 19.d. Each of the omissions of the Clary was a cause of the collision.

The Kariba is culpable for having failed to navigation with extreme caution and failed to reduce its speed, in violation of COLREGs arts 19.e, 19.d.ii. The turn of the Kariba was a cause of the collision.

Therefore, the final allocation of liability for the collision is as follows: the Kariba’s relative culpability is 40% and relative causative impact 86%, yielding an average of 63%; the Tricolor’s relative culpability is 24% and relative causative impact is 10%, yielding an average of 17%; the Clary’s relative culpability is 36% and relative causative impact is 4%, yielding an average of 20%.

In addition, the Clary may not limit its liability. The owner and bareboat charterers of Tricolor, however, may limit their liability to pending freight, and the Tricolor parties are exonerated from liability.