Recent Development by John M. Guard
The M/V NOORDAM (NOORDAM), a passenger liner, and the M/S MOUNT YMITOS (MOUNT YMITOS), a cargo ship, collided on November 6, 1993, in the Southwest Pass just south of the mouth of the Mississippi River. The NOORDAM was returning to New Orleans, and to her east, off her starboard side, lay the MOUNT YMITOS having just departed from New Orleans. Prior to the collision, the MOUNT YMITOS was showing the NOORDAM her green lights, thereby indicating that the vessels should pass starboard-to-starboard with no risk of collision. When the MOUNT YMITOS, however, made a sudden and unexpected turn to starboard, the NOORDAM could then only see her red lights, indicating an imminent collision. The NOORDAM turned hard to port in a vain attempt to evade the MOUNT YMITOS, but the vessels collided 90-120 seconds later.
In the subsequent suit between the vessels, the United States District Court for the Eastern District of Louisiana rejected the MOUNT YMITOS's version of events because the logbook from the ship had been altered. The district court found that a custom existed in the Southwest Pass requiring vessels to pass starboard-to-starboard, and held the MOUNT YMITOS liable for the collision because it did not follow this custom. The district court determined further that the MOUNT YMITOS had violated numerous provisions of the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS). The court also explicitly rejected MOUNT YMITOS's argument that it was a privileged vessel in a crossing situation under COLREGS Rule 15. The court also found that the NOORDAM had violated Rule 5 (failure to keep a proper lookout) and Rule 7(b) (failure to use radar properly), but ruled that the NOORDAM'S violation of Rule 5 was not a proximate cause of the collision. The court then apportioned liability, finding the MOUNT YMITOS ninety percent at fault and the NOORDAM ten percent at fault. On appeal, MOUNT YMITOS challenged the finding of the starboard-to-starboard passing custom in the Southwest Pass, the proximate cause determination as to NOORDAM's Rule 5 violation, and the apportionment of damages by the trial court. The United States Court of Appeals for the Fifth Circuit held that there is not a custom of starboard-to-starboard passing in the Southwest Pass. Hal Antillen N.V. v. Mount Ymitos MS, 147 F.3d 447, 451, 1999 AMC 76, 79 (5th Cir. 1998).
About the Author
John M. Guard.
Citation
73 Tul. L. Rev. 2143 (1999)