The Tricolor/Kariba/Clary Incident-
by Jim Austin
At night and in fog on Dec. 14, 2002, the 580-foot Bahamian-flagged container ship Kariba was steaming westbound on 290T/16 knots in the Westhinder branch of the English Channel TSS. At about 1/2 mile on her stb’d quarter and coming up to overtake at 17.9 kts was the 627-foot Norwegian-registered car carrier Tricolor. Approaching a near 90-degree intersection with the north-south TSS branch, both vessels observed a radar contact to port at about five miles, that of the 455-foot Singapore registered bulker Clary approaching the intersection from the south at 13 kts.
Kariba’s Master, Second Officer and an Able Seaman were on the ARPA-equipped bridge. Aware of being overtaken to stb’d, Kariba’s attention was on oncoming Clary to port, as yet unseen. Uncertain as to her intentions but anticipating that the oncoming vessel would turn stb’d to go astern, Kariba held her course and speed. Finally, perceiving no change, Kariba came stb’d 10 degrees and within seconds another 20 degrees. Then, upon suddenly seeing Tricolor’s lights, she increased the rudder to hard-over; collision with Tricolor’s port beam ensued and the car carrier capsized and sank – fortunately with no loss of life. (More than 2,800 BMWs, Saabs and Volvos automobile met their demise.)
Tricolor’s bridge was manned by the Master, Second Officer and an Able Seaman. The watch was aware not only that they were overtaking Kariba (“could see her lights”), but that Kariba herself was on a collision course with a third vessel (Clary) approaching from port. When Kariba turned suddenly stb’d and into Tricolor’s path, the latter immediately put her rudder hard over to stb’d but to no avail.
Proceeding north toward the intersection at 13 kts with the two radar contacts (Kariba and Tricolor) approaching to stb’d, Clary’s Second Officer (and sole watchstander) stated that he intended to make “a dramatic” turn to stb’d to go astern, but believed the timing to be constrained by the TSS boundaries (there was good water). Soon after he executed the turn he heard a VHF call “collision – collision – collision” and observed merging and halting of the two radar blips. He resumed TSS heading and passed the area of collision without answering the distress call, “thinking that the vessels had only ‘kissed.’ ” After that, the second officer “erased his chart and at trial admitted that ‘someone’ had altered Clary’s log to reflect clear conditions and that there were two other men on deck at the time of the collision.” Although carrying radar, Clary had no full ARPA system.
The inevitable case was heard by the U.S. District Court for the Southern District of New York. Issuing its findings in January 2006, the District Court (DC) held that: “…it was not the Tricolor’s or Clary’s failure to act that was the cause; rather the sole and exclusive cause of the collision was the Kariba’s turn to stb’d. There may have been other faults which led up to this single fault, but none were causative.”(Emphasis added).
Although Kariba had conceded fault, she and Tricolor cargo interests appealed, contesting that Kariba’s fault was not the “sole cause” of the collision. The case was heard before the U.S. Court of Appeals for the Second Circuit (2d Cir) and findings were issued in July 2007.
Responding to Kariba’s pleading the General Prudential Rule ColReg 2(b), the District Court (DC) had determined that neither of its two defining arms, (a) Special Circumstances nor (b) Immediate Danger pertained in the instance, stating that “it is not at all unusual or ‘special’ for three ships to pass the juncture of a TSS simultaneously” and that the danger presented was not “immediate.” Kariba had also pleaded that slowing could have raised the possibility of a re-establishing a collision situation with Clary if and when the latter did come stb’d as expected. The District Court’s rejection of both of the above was affirmed by the Circuit Court.
The Circuit Court also agreed with the lower court’s finding that Kariba faulted as regards ColReg 19(d) – turning toward a vessel at or abaft the beam as well as 19(e) – failure to reduce speed or take all way off until danger of collision is over.
While agreeing with the DC in declining to accept the idea that an overtaking vessel must anticipate not only the other vessel’s predictable adjustments but her unpredictable as well (terming it “an absolutist approach”), the Circuit Court seemed to move the focus on overtaking from “how” to “whether.”
The Court noted that that “Tricolor did not slow down but instead attempted to overtake Kariba in a fog at 17.9 kts in a heavily trafficked TSS with the knowledge that Kariba was on a collision course with northbound Clary,” stating that the Rule governs “not only the conduct of overtaking (but also) the very choice to overtake.” Therefore, disagreeing with the DC (possibly having in mind Tricolor’s awareness of Kariba’s developing predicament vis-à-vis Clary), the Circuit Court held that Tricolor violated ColRegs 13 (Overtaking) and 16 (Action by Give-Way Vessel).
The DC had found Tricolor’s speed not unsafe because “it was overtaking Kariba at the fairly low relative speed of 1.9 kts.” The Circuit Court held that, in its concentration on the relative passing speed, the DC had “misinterpreted ColRegs 6 and 19(b) on safe speed” in failing to consider the absolute speed (17.9 kts) of Tricolor as well as all the surrounding circumstances” and therefore Tricolor was found to have violated both ColRegs 6 and 19 (b) as regards Safe Speed.
(Whether or not Tricolor’s speed was a “cause” was left in limbo to be taken up at remand, the Circuit Court commenting that “the question hinges not on the factor of Tricolor’s speed in isolation, but whether that speed reflected an inability to stop or slow in time to avoid Kariba’s abrupt abaft-the-beam turn”.)
Clary was found to have violated ColRegs 5 (Lookout) for her “understaffed bridge” and 19(d) for failure to take avoiding action in ample time. The Circuit Court stated that although “Kariba and Triclolor themselves might have increased the risk of collision to which Clary only contributed, their actions were not so extraordinary as to supersede the Clary’s causative impact.”
In summary, the Circuit Court affirmed the District Court’s determination that Kariba was responsible for the collision, but reversed the findings that (a) Kariba was solely responsible and that (b) Tricolor and Clary bore no responsibility for the collision. Accordingly, the case was remanded for the District Court’s “consideration of the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision,” adding that “in making the culpability comparison, the District Court should include in its consideration of the fault of Clary, the fact that its logbook was altered.”
Virtually unmentioned in all of this were fog signals and VHF. The Appeals Court record states that “in the quarter-hour leading up to the collision, none of the vessels sounded its foghorn or communicated with any other vessel on the radio.” Although Kariba claimed to have sounded, the District Court was “unconvinced,” and added further that given radar, “it is not likely that they would have changed or improved the situation,” the position, course, speed and CPA of each being available to the others.
VHF in collision avoidance has a checkered history and in fact has been, to some extent, discouraged, the court in this case noting “it being too difficult to identify which vessel is which because of their being so many ships present.” Both the U.K. Maritime and Coastguard Agency (Marine Guidance Note 167) and the Maritime and Port Authority of Singapore (Shipping Circular 23) have cautioned mariners as to the dangers of the use of VHF in collision avoidance.
Collisions often result from a cascade of single events. In this case, Clary’s shorthanded bridge and her delay in maneuvering; Kariba, uncertain as to Clary’s intent, turned while Tricolor continued to overtake. Each was individually manageable, but in coming together, they determined the outcome.
(This three-way event became famous not only because Tricolor was carrying more than 2,800 fancy European automobiles, but also because within three weeks two vessels had run up upon her partially submerged wreck and had to be pulled off.)
About the Writer
A graduate of the U.S. Naval Academy, Jim Austin served as navigator and command duty officer aboard destroyers. He subsequently served as air intercept controller and assistant combat information center officer aboard a cruiser. He teaches Coast Guard license courses. For several years his articles on “The Rules of the Road” were published on Ocean Navigator’s Web site. He is a retired physician living in Burlington, Vt.