Crowley Marine Services, Inc. v. Maritrans, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CROWLEY MARINE SERVICES INC., a 
Delaware corporation,
Plaintiff-Appellant,
v.
MARITRANS INC., a Delaware No. 07-35237
corporation; MARITRANS
TRANSPORTATION INC., a Delaware  D.C. No.
CV-02-02487-JCC
corporation; MARITRANS OPERATING
OPINION
COMPANY LP, a Delaware limited
partnership; MARITRANS GENERAL
PARTNER INC., a Delaware
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
February 4, 2008—Seattle, Washington
Filed July 3, 2008
Before: Raymond C. Fisher, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould
8089
8092 CROWLEY MARINE v. MARITRANS INC.
COUNSEL
Daniel J. Gunter, Riddell Williams P.S., Seattle, Washington,
for the plaintiff-appellant.
Marc E. Warner, LeGros, Buchanan & Paul, Seattle, Wash-
ington, for the defendants-appellees.
OPINION
GOULD, Circuit Judge:
Crowley Marine Services, Inc. (“Crowley”) appeals the dis-
trict court’s reallocation of fault in Crowley’s action against
Maritrans, Inc., Maritrans Transportation Inc., Maritrans
Operating Company, and Maritrans General Partner Inc.
(“Maritrans”) arising out of the collision of Crowley’s tug
boat, the Sea King, with Maritrans’ oil tanker, the Allegiance.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Another panel of our court previously heard an appeal in
this case, and we present the facts as detailed in our prior
opinion here:
Crowley provides vessel escort and assistance ser-
vices in Puget Sound. Federal law requires that any
tanker transiting Puget Sound east of navigational
Buoy “R” with oil cargo must be escorted by two
vessels. Maritrans hired Crowley to provide escort
services for the Allegiance, an oil tanker under the
command of Captain Joseph Semler, on the evening
of January 19, 2002. Crowley provided two tug
boats: the Sea King, under the command of Captain
Donald Nekeferoff, and the Chief, under the com-
mand of Captain William Lowery.
CROWLEY MARINE v. MARITRANS INC. 8093
At 8:50 p.m., the three captains held a radio con-
ference to plan the escort. According to the agreed-
upon plan, the Allegiance would travel east towards
Buoy R at a speed of about 15 knots. While the Alle-
giance was still two to three miles away, the two
tugs would depart from Buoy R at about 12.5 knots.
The Allegiance would gradually overtake the two
tugs and pass between them, at which point the tugs
would take up position on either side of the tanker to
complete the escort maneuver, with the Chief teth-
ered to the stern and the Sea King on the tanker’s
port shoulder.
For approximately the first forty-five minutes, the
maneuver went according to plan. Each of the three
vessels sailed with auto-pilot set to 58 degrees true,
with the Allegiance gradually overtaking the tug
boats. During this time both the Allegiance and the
Chief made numerous adjustments to their course to
account for the fact that the vessel’s auto-pilot func-
tion maintains a ship’s heading (the direction in
which the bow points) but does not reflect changes
due to wind or currents. The Sea King made no com-
parable adjustments to its course.
By 9:35 p.m., with the Sea King still a short dis-
tance ahead, the pilot and helmsman aboard the Alle-
giance realized that the tug boat was also closing the
lateral distance between the vessels. Nonetheless,
both men testified that they had seen escort tugs run-
ning close alongside tankers many times before, and
saw no cause for alarm. As the Sea King came closer
and closer, Captain Semler aboard the Allegiance
decided that the vessels’ proximity exceeded his
comfort zone. Although later testifying that he did
not see any risk of collision, Captain Semler radioed
Captain Nekeferoff aboard the Sea King, inquiring,
8094 CROWLEY MARINE v. MARITRANS INC.
“Don, are you ok?” Captain Nekeferoff responded
affirmatively.
Shortly after the radio communication, the Alle-
giance and the Sea King collided, with the tug boat
pushed along by the tanker’s bow and nearly capsiz-
ing as she rolled to the tanker’s starboard side while
heeling to port. About halfway down the tanker’s
side, the Sea King righted itself as the tanker sailed
past. The exact dynamics of the collision were dis-
puted. Crowley presented expert testimony that the
two vessels gradually converged until the Allegiance
struck the Sea King almost directly from behind.
Maritrans presented testimony that the Sea King
veered suddenly to starboard, into the path of the
Allegiance.
At trial, each side attributed fault entirely to the
other, relying in large part on the COLREGS.1 The
COLREGS provide a “universal system of sea traffic
rules” applicable to vessels in international waters.
William Tetley, International Maritime and Admi-
ralty Law 237 (2002). Originally adopted by treaty
under the auspices of the International Maritime
Organization in 1972, the COLREGS have since
been incorporated into the national law of “every
shipping nation in the world.” Id. These rules apply
to “all vessels upon the high seas and in all waters
connected therewith navigable by seagoing vessels.”
Rule 1(a).
Crowley argued that Maritrans violated four pro-
visions of the COLREGS: Rule 5, which establishes
a duty to maintain a lookout; Rule 8, which estab-
1
The International Regulations for Preventing Collisions at Sea, Oct. 20,
1972, T.I.A.S. No. 8587, 28 U.S.T. 3459, are better known by the acro-
nym COLREGS.
CROWLEY MARINE v. MARITRANS INC. 8095
lishes a duty to avoid collision; Rule 13, which
makes an overtaking vessel responsible for avoiding
collision; and Rule 34, which requires vessels in
sight of each other to give a signal when changing
course. Maritrans countered that Crowley violated
Rule 5 by failing to maintain a proper lookout. Mari-
trans also maintained that Crowley reasonably
should have investigated the risks stemming from
Captain Nekeferoff’s history of alcoholism and
health problems, conditions that appeared to be
related to a temporary loss of situational awareness
shortly before and during the collision.
The district court credited Maritrans’ arguments,
finding that because the two vessels were operating
according to agreed maneuvers, Rules 8 and 13 of
the COLREGS did not apply. To reach this decision,
the district court invoked Rule 2, which provides that
“[i]n 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.” Rule 2(b).
Although noting that the plain language of the
special circumstances exception in Rule 2 did not
provide such an exception on its face, the district
court found that “courts have either expanded the
scope of Rule 2(b)’s special circumstances or have
created a wholly separate category of special circum-
stances involving vessels operating in concert and
pursuant to agreed maneuvers.” Thus freed from the
restrictions of Rule 8 and Rule 13, which would have
focused on Maritrans’ fault for failing to avoid the
Sea King, the district court found Maritrans to be
only 25% responsible for the accident.
8096 CROWLEY MARINE v. MARITRANS INC.
Crowley Marine Servs. Inc. v. Maritrans Inc., 447 F.3d 719,
722-23 (9th Cir. 2006) [hereinafter Crowley I] (footnote
added).
In Crowley I, we reversed the district court’s fault determi-
nation and remanded, concluding that, pursuant to Rule 13(a),
the Allegiance, as the overtaking vessel, had a duty to keep
out of the way of the Sea King and that, pursuant to Rule 8(e),
Captain Semler should have reduced the speed of the Alle-
giance to avoid collision with the Sea King. Id. at 724. We
also concluded that the fact that the Allegiance and the Sea
King were operating in concert and pursuant to agreed
maneuvers did not constitute a special circumstance that per-
mitted departure from the COLREGS under Rule 2(b).2 Id. at
727. We remanded to the district court for a reassessment of
comparative fault in light of our ruling, urging the district
court to base its reassessment on “the pre-arranged escort
plan, along with all the other facts.” Id. at 728. In a memoran-
dum disposition filed simultaneously with the Crowley I opin-
ion, we held that “Crowley knew or reasonably should have
known of Captain Nekeferoff’s serious medical and alcohol
problems,” and therefore “had a duty to conduct a further
inquiry before allowing Nekeferoff to captain” the Sea King.
Crowley Marine Services Inc. v. Maritrans Inc., 179 Fed.
App. 415, 417 (9th. Cir. 2006) [hereinafter Crowley IA]. As
such, we concluded that the district court did not abuse its dis-
cretion by admitting evidence regarding Captain Nekeferoff’s
medical and alcohol problems. Id. We also determined that
the district court did not abuse its discretion by admitting the
testimony of Maritrans’ expert on hydrodynamics. Id.On remand, the district court considered all of the facts of
2
COLREGS Rule 2(b) provides that “[i]n 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.”
CROWLEY MARINE v. MARITRANS INC. 8097
the case, including Maritrans’ violations of Rules 8(e) and
13(a), Crowley’s violations of Rules 5 and 17(b), and several
other factors, and reallocated fault by increasing Maritrans’
responsibility for the collision to 30% and decreasing Crow-
ley’s responsibility to 70%.
II
In its second appeal, Crowley again challenges the district
court’s comparative fault assessment. We review de novo an
admiralty court’s conclusions of law, Fireman’s Fund Ins.
Cos. v. Big Blue Fisheries, Inc., 143 F.3d 1172, 1175 (9th Cir.
1998), and review for clear error an admiralty court’s findings
of fact, Madeja v. Olympic Packers, LLC, 310 F.3d 628, 635
(9th Cir. 2002). We also review for clear error an admiralty
court’s apportionment of fault. Alkmeon Naviera, S.A. v. M/V
Marina L, 633 F.2d 789, 796 (9th Cir. 1980).
III
Crowley first argues that the district court erred by not
assigning the majority of fault for the collision to Maritrans,
and urges us to adopt a rule of law that requires a district
court to allocate the majority of fault to the overtaking vessel
where the overtaking vessel has violated Rule 13(a)3 and that
violation is a cause of the collision under the rule of The
Pennsylvania, 86 U.S. 125 (1873).4 Because the Supreme
3
COLREGS Rule 13(a) provides that “any vessel overtaking any other
shall keep out of the way of the vessel being overtaken.”
4
The rule of The Pennsylvania provides that when a vessel violates a
statutory rule intended to prevent collision, “the burden rests upon [that
vessel] 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.
Such a rule is necessary to enforce obedience to the mandate of the stat-
ute.” 86 U.S. at 136. This Pennsylvania-presumption goes only to causa-
tion and has no bearing on the district court’s determination of liability.
See, e.g., Fireman’s Fund, 143 F.3d at 1176 n.4; Trinidad Corp. v. S.S.
Keiyoh Maru, 845 F.2d 818, 825 n.5 (9th Cir. 1988); Crown Zellerbach
Corp. v. Willamette-Western Corp., 519 F.2d 1327, 1329 (9th Cir. 1975).
8098 CROWLEY MARINE v. MARITRANS INC.
Court, in its seminal decision in United States v. Reliable
Transfer Co., Inc., 421 U.S. 397 (1975), adopted the compara-
tive fault rule for assessing fault in maritime collisions, we
reject Crowley’s argument and affirm the district court’s allo-
cation of fault.
[1] Before the Supreme Court’s decision in Reliable Trans-
fer, maritime law called for the equal division of damages in
all maritime collisions “whenever both parties [were] found to
be guilty of contributing fault, whatever the relative degree of
their fault may have been.” 421 U.S. at 397. The genesis of
that rule has been traced back to the twelfth century, to a
divided damages maritime rule found in Article XIV of the
Laws of Oleron. See id. at 402 n.3; see also The Laws of
Oleron, art. XIV, reprinted in 30 F. Cas. 1171, 1178 (1897)
(appendix).5 In Reliable Transfer, however, the Supreme
5
The Laws of Oleron were compiled by Eleanor, Duchess of Guienne.
30 F. Cas. at 1171. While participating in the Crusades and traveling in
the eastern Mediterranean, she observed the maritime conventions that
were developing there. Id. She successfully introduced those conventions
to her own lands on the island of Oleron. Id. Eleanor’s son, Richard I of
England, introduced an improved version of the Laws of Oleron to
England. Id. Today, they are considered the foundation of European mari-
time codes. See 1 S. FRIEDELL, BENEDICT ON ADMIRALTY § 6, at 21 (rev. 7th
ed. 2007). Article XIV of the Laws of Oleron established the equal divi-
sion of damages rule:
If a vessel, being moored, lying at anchor, be struck or grappled
with another vessel under sail, that is not very well steered,
whereby the vessel at anchor is prejudiced, as also wines, or other
merchandize in each of the said ships damnified. In this case the
whole damage shall be in common, and be equally divided and
appraised half by half . . . . The reason why this judgment was
first given, being, that an old decayed vessel might not purposely
be put in the way of a better, which will the rather be prevented
when they know that the damage must be divided.
30 F. Cas. at 1178. A form of this divided damages rule was adopted by
the United States Supreme Court in The Catharine, 58 U.S. 170, 177-78
(1854), and became a part of American maritime law until replaced by the
comparative fault rule established in 1975 by the Supreme Court’s deci-
sion in Reliable Transfer, 421 U.S. at 411, which overruled The Catha-
rine.
CROWLEY MARINE v. MARITRANS INC. 8099
Court replaced this long standing equally-divided damages
rule with the comparative fault rule, which allocates damages
in proportion to each vessel’s share of the blame. 421 U.S. at
411. Underlying this decision was the assumption that “[a]
rule that divides damages by degree of fault would seem bet-
ter designed to induce care than the rule of equally divided
damages, because it imposes the strongest deterrent upon the
wrongful behavior that is most likely to harm others.” Id. at
405 n.11. In applying the rule of Reliable Transfer, we have
emphasized the importance of the flexibility and adaptability
of the comparative fault standard. See, e.g., Crowley I, 447
F.3d at 728 & n.7. Comparative fault requires a district court
to undertake an individualized evaluation of each collision
and to consider and compare the “fault” of each party, where
“fault” is defined as “blameworthy conduct which contributes
to the proximate cause of the loss or injury.” Pan-Alaska
Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d
1129, 1139 (9th Cir. 1977).
[2] Crowley effectively asks us to abandon the comparative
fault rule in situations where an overtaking vessel has violated
Rule 13(a) and that violation is a cause of the collision, and
instead adopt a rule that the overtaking vessel in such a situa-
tion is always responsible for the majority of fault as a matter
of law. Crowley’s proposed rule, however, would mandate
that a vessel charged with violating Rule 13(a) would bear the
majority of the burden for a collision even if the balance of
factors showed that the other vessel was more blameworthy,
because of either its own statutory violations or other negli-
gent behavior. Cf. Crowley I, 447 F.3d at 728 (citing Pennzoil
Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472
(5th Cir. 1991), for the proposition that “an assessment of
comparative fault must be based on all the facts of the case,
not on a simple count of how many rules of navigation each
vessel has violated”); Trinidad, 845 F.2d at 825 n.5 (recogniz-
ing that a vessel that has not violated the COLREGS may be
more blameworthy than a vessel that has committed a statu-
tory violation). We decline to adopt Crowley’s proposed rule
8100 CROWLEY MARINE v. MARITRANS INC.
because it would contravene the purpose of the comparative
fault standard established in Reliable Transfer—namely, to
allocate fault according to the blameworthiness of each party
—particularly in cases, like this one, where the district court
determines that the conduct of the party not in violation of
Rule 13(a) was the primary cause of the collision.
Our holding today is bolstered by the numerous cases
Crowley cites in support of its proposed majority fault rule.
In each case, the district court did not assign the overtaking
vessel the majority of fault merely because it had violated
Rule 13(a) and that violation was a cause of the collision, but
instead determined based on an examination of all of the facts
of the case that the overtaking vessel was the more blamewor-
thy party. See, e.g., In re Nat’l Shipping Co. of Saudi Arabia,
147 F. Supp. 2d 425, 440 (E.D. Va. 2000) (assigning majority
of fault to vessel because it was the burdened vessel and
because, unlike the other vessel, it was fully aware of the cir-
cumstances giving rise to the collision); In re Seiriki Kisen
Kaisha, 629 F. Supp. 1374, 1382 (S.D.N.Y. 1986) (assigning
60% of fault to burdened vessel because it was the give-way
vessel and, “most importantly,” because it took a last-minute
turn into the course line of the other vessel); Empressa Hon-
durena de Vapores, S.A. v. Bank Line Ltd., 434 F. Supp. 602,
608 (S.D.N.Y. 1977) (assigning 70% of fault for collision to
burdened vessel primarily because of its excessive speed and
because of its failure to have an adequate number of lookouts
posted); Fathom Expeditions, Inc. v. M/T Gavrion, 402 F.
Supp. 390, 393-94 (M.D. Fla. 1975) (assigning 60% of fault
for collision to vessel because it was the burdened vessel and
because the collision could have been avoided had the ves-
sel’s whistle, rudder, and engine responded properly). Crow-
ley’s proposed rule would wrest from the trial judge the
responsibility of weighing the culpability of each party, which
would run counter to both the comparative fault rule estab-
lished in Reliable Transfer and our long-standing determina-
tion that the trial judge can best assess fault. See Alkmeon
Naviera, 633 F.2d at 796.
CROWLEY MARINE v. MARITRANS INC. 8101
[3] We are sensitive to the concern that the “rules of the
road” on the high seas must be clear, lest we create too much
uncertainty in an area that requires a high degree of clarity.
Our decision not to adopt Crowley’s proposed rule, therefore,
should not encourage vessels to alter their understanding of
the right-of-way; rather, we only reiterate that all ships must
exercise requisite caution regardless of their statutory status.
The unusual facts of this case, including the coordinated
maneuvers of the two vessels, Captain Nekeferoff’s serious
medical and alcohol problems, and Crowley’s knowledge of
these problems, present what we presume will be, and what
prior cases indicate is, a rare case in which the overtaking ves-
sel is not responsible for the majority of fault. It is precisely
because of facts like those presented in this case that we do
not adopt Crowley’s proposed rule, and instead keep to the
course of the flexible standard of comparative fault, deferring
to the district court’s assessment of fault unless it is clearly
erroneous.
IV
[4] Crowley also contends that the district court erred in
allocating fault to the Sea King for not following the man-
dates of Rules 17(a)(ii) and 17(b) by not taking action to
avoid the collision. Crowley challenges the district court’s
determination, arguing instead that under Rule 17(a)(i) the
Sea King, as the vessel being overtaken, was required to keep,
and did in fact keep, her course and speed.6 Crowley relies on
6
COLREGS Rule 17 provides, in pertinent part:
(a)
(i) Where one of two vessels is to keep out of the way the
other shall keep her course and speed.
(ii) The latter vessel may however take action to avoid col-
lision by her manoeuvre alone, as soon as it becomes appar-
ent to her that the vessel required to keep out of the way is
not taking appropriate action in compliance with these Rules.
(b) When, from any cause, the vessel required to keep her
course and speed finds herself so close that collision cannot be
(avoided by the action of the give-way vessel alone, she shall
take such actions as will best aid to avoid collision.
8102 CROWLEY MARINE v. MARITRANS INC.
cases from the Second and Fifth circuits to support its argu-
ment, but we conclude that the decisions of our sister circuits
are inapposite to the case before us and hold that the district
court did not err in allocating fault to Crowley for the Sea
King’s failure to abide by Rule 17(b)’s mandate to take action
to avoid the collision.
Crowley contends that the Second Circuit’s decision in
Potomac Transport, Inc. v. Ogden Marine, Inc., 909 F.2d 42(2d Cir. 1990), supports its argument that had the Sea King,
as the overtaken vessel, taken action to avoid the collision, it
would have been in violation of Rule 17(a)(i) which requires
that the overtaken vessel keep its course. However, the Sec-
ond Circuit found the overtaken vessel in Potomac primarily
at fault not merely because it altered its course to avoid the
collision, but also because the second mate of the vessel made
the decision after only two “cursory visual observations” of
the overtaking vessel, failed to inform the overtaking vessel
of the planned movements, and was “entirely negligent” in the
maneuvers he undertook to avoid a collision, moving the ves-
sel toward the overtaking vessel instead of away from it. Id.
at 45. In other words, Potomac held that the overtaken vessel
was primarily responsible for the collision because “even if it
had been necessary for [the overtaken vessel] to shift her own
course to avoid [the overtaking vessel],” she would still be
liable because she negligently pursued these maneuvers. Id.The Potomac decision does not compel the conclusion that
Rule 17(b) never requires the overtaken vessel to give way,
and is distinguishable from the present case where Captain
Nekeferoff failed to take any action to avoid the collision.
Crowley’s reliance on the Fifth Circuit’s Ellis decision is
similarly unpersuasive. The Fifth Circuit determined that the
overtaken and eventually sunk tug in Ellis was not mutually
at fault where it failed to take action to avoid the close pas-
sage of the overtaking oil tanker. 292 F.2d at 95-96. Yet, the
precise question presented in Ellis was whether the overtaking
vessel’s failure to maintain a lookout necessitated that it share
CROWLEY MARINE v. MARITRANS INC. 8103
some of the liability for the ensuing accident and not whether
its failure to abide by Rule 17(b) required the same. See id.
Moreover, although Ellis noted that the “only condition
imposed” on the overtaken vessel at bar was “that she hold
course and speed,” it acknowledged that under different cir-
cumstances, an overtaken vessel may be liable for failing to
maintain a lookout when it would have enabled the vessel “to
have seen that [the overtaking vessel’s] violations were so
patent and so far advanced that unless the [overtaken vessel]
affirmatively took evasive action, serious harm would be
done.” Id. In contrast, here the district court determined that
the Sea King violated Rule 5 of the COLREGS by not having
a proper lookout at all times, and that this violation was a
cause of the collision under the rule of The Pennsylvania.
Because the Sea King was involved in a coordinated maneu-
ver with the Allegiance, escorting the Allegiance through the
Puget Sound, the district court did not err in concluding that
the Sea King’s violation of Rule 5 was a cause of the colli-
sion. If the Sea King had kept a lookout astern, it could have
taken action to avoid the collision with the Allegiance, and
should have done so pursuant to Rule 17(b).
[5] Like the other rules of the COLREGS that employ the
word “shall,” Rule 17(b) is mandatory. Rule 17(b) mandates
that the overtaken vessel, when she “finds herself so close that
collision cannot be avoided by the action of the give-way ves-
sel alone, . . shall take such actions as will best aid to avoid
collision.” Rule 17(b) (emphasis added). This interpretation of
the word “shall” is consistent with our earlier opinion in
Crowley I, that the Allegiance, as the overtaking vessel,
despite the coordinated nature of the tug escort, was required
to abide by the compulsory COLREGS Rules 8(e) and 13(a),
which also use the term “shall.” See Crowley I, 447 F.3d at
724-27. We conclude that Rule 17(b) is a mandatory COL-
REGS rule that requires the overtaken vessel to take action
when “both vessels enter extremis” and “action by both ves-
sels is necessary if the collision is to be avoided.” Nat’l Ship-
ping Co. of Saudi Arabia, 147 F. Supp. 2d at 439. Here, the
8104 CROWLEY MARINE v. MARITRANS INC.
Sea King’s trajectory eventually placed her in an “extremis”
position where an accident could have been avoided only by
her own action. Captain Nekeferoff’s last-minute maneuvers
were ineffective and too late to avert the collision. Cf.
Empressa, 434 F. Supp. at 607-08. We hold that the district
court did not err in determining that the Sea King violated
Rule 17(b) by not taking action to avoid collision with the
Allegiance.
V
[6] In conclusion, we hold that the district court did not err
in apportioning 70% of the responsibility for the collision to
the Sea King. As we previously held, the district court did not
err in determining that Crowley knew or reasonably should
have known of Captain Nekeferoff’s serious medical and
alcohol problems. Crowley IA, 179 Fed. App. at 417. Nor did
the district court err in considering the coordinated nature of
the tug escort, the Sea King’s violations of Rules 5 and 17(b),
or the negligence of both Crowley and Captain Nekeferoff.
See Crowley I, 447 F. 3d at 728. Given all of the facts sur-
rounding this collision, including the Allegiance’s violation of
Rules 8(e) and 13(a), it was not clear error for the district
court to assess 70% of the fault to the Sea King. The district
court carefully and conscientiously considered the facts and
made a fault allocation consistent with the rule of Reliable
Transfer, and it is precisely this type of fact-intensive decision
that is committed by our precedent to the district court for its
determination. Absent clear error, we will not disturb a dis-
trict court’s factual determination on fault allocation for a col-
lision at sea.
AFFIRMED.