On December 14, 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. Both the Kariba and cargo owners appealed.

Held: US courts will apply the Brussels Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910 (Collision Convention 1910) when a collision occurs in international waters between vessels that fly flags of signatory States. Therefore, all legal presumptions of fault in regard to liability for collision are abolished and the Pennsylvania rule does not apply.

In addition, the Court found that the Tricolor violated the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs) arts 6, 13, 16, 19.b; that the Clary violated COLREGs arts 2.a, 5, 19.d; that the Kariba violated COLREGs arts 19.d.ii, 19.e.

Moreover, the Court held that the standard of causation under COLREGs and Collision Convention 1910 for purposes of allocating liability is that a plaintiff must demonstrate the defendant’s act is a factual or but-for cause of a harm and the defendant’s act proximately caused the harm. The allocation of liability will be on the basis of both relative culpability and relative causative effect of each party’s acts.

Finally, the Court held that each vessel committed at least one violation that constituted a cause of the collision.