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. 04-35724

corporation; MARITRANS D.C. No.

TRANSPORTATION INC., a Delaware  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, Chief Judge, Presiding

Argued and Submitted

October 17, 2005—Seattle, Washington

Filed May 8, 2006

Before: Richard D. Cudahy,* Thomas G. Nelson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

5121
COUNSEL

Vincent R. Larson, Daniel J. Gunter, and C. William West,

Riddell Williams P.S., Seattle, Washington, for plaintiff-appellant Crowley Marine Services, Inc. 

Marc E. Warner, LeGros, Buchanan & Paul, Seattle, Washington, for defendant-appellee Maritrans Operating Company

L.P. 

5124 CROWLEY MARINE SERVICES v. MARITRANS INC.
OPINION

McKEOWN, Circuit Judge: 

This case calls on us to decide a matter of first impression

regarding the application of the International Regulations for

Preventing Collisions at Sea, Oct. 20, 1972, 28 U.S.T. 3459,

T.I.A.S. 8587, adopted by statute at 33 U.S.C. § 1602, better

known by their common acronym as the COLREGS. Crowley

Marine Services, Inc. (“Crowley”) owned and operated a tug

boat hired to accompany an oil tanker operated by Maritrans

Operating Company L.P. (“Maritrans”) to an oil platform in

the Puget Sound. During the crossing the two vessels collided,

causing more than $2 million in damages. 

In the inevitable suit that followed, each side identified

numerous violations of the COLREGS as the alleged cause of

the collision. The district court apportioned fault for the accident as 75% to Crowley and 25% to Maritrans. The district

court found that the two vessels were operating in concert

according to agreed maneuvers, and therefore determined that

several substantive provisions of the COLREGS at issue were

inapplicable. Specifically, the court ruled that this situation

presented “special circumstances” that provide an exception

to the COLREGS. We hold that the plain language of the

COLREGS precludes such a broad exception, and remand for

the district court to reconsider the relative liability of the parties consistent with this opinion. 

BACKGROUND

Crowley provides vessel escort and assistance services 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

CROWLEY MARINE SERVICES v. MARITRANS INC. 5125
King, under the command of Captain Donald Nekeferoff, and

the Chief, under the command of Captain William Lowery. 

At 8:50 p.m., the three captains held a radio conference 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 Allegiance 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 tethered 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 function 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 comparable adjustments to its

course. 

By 9:35 p.m., with the Sea King still a short distance ahead,

the pilot and helmsman aboard the Allegiance realized that

the tug boat was also closing the lateral distance between the

vessels. Nonetheless, both men testified that they had seen

escort tugs running 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, “Don, are you ok?” Captain Nekeferoff responded affirmatively. 

5126 CROWLEY MARINE SERVICES v. MARITRANS INC.
Shortly after the radio communication, the Allegiance and

the Sea King collided, with the tug boat pushed along by the

tanker’s bow and nearly capsizing 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 disputed.

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. The COLREGS provide

a “universal system of sea traffic rules” applicable to vessels

in international waters. William Tetley, International Maritime and Admiralty 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 provisions of

the COLREGS: Rule 5, which establishes a duty to maintain

a lookout; Rule 8, which establishes 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. Maritrans 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. 

CROWLEY MARINE SERVICES v. MARITRANS INC. 5127
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

circumstances 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.

ANALYSIS

This opinion addresses the proper scope of Rule 2(b)’s special circumstances exception to the COLREGS. The remaining issues presented by Crowley’s appeal are addressed in a

separate memorandum disposition.1

The district court observed that jurisprudence regarding the

scope of the special circumstances exception has done “little

to clarify murky waters.” This feeling is not unwarranted and

1Crowley presented two other contested issues—Crowley’s vicarious

liability for Captain Nekeferoff’s medical and alcohol problems and the

admission of expert testimony regarding hydrodynamic forces that would

have affected the collision. These matters are addressed in a memorandum

disposition filed simultaneously with this opinion. 

5128 CROWLEY MARINE SERVICES v. MARITRANS INC.
may actually understate the dearth of applicable precedent.

Relevant case law largely dates to the early part of the last

century, decades before the COLREGS were adopted in the

1970s. The permissive decisions in these cases have not been

reconciled with the plain language construction of the contemporary COLREGS as a whole, thus leaving the murky

waters alluded to by the district court. 

I. THE LAW GOVERNING COLLISIONS AT SEA

[1] Three of the COLREGS’ collision avoidance rules are

at issue: two rules that govern a ship’s obligation to avoid collision, Rules 8 and 13, and one rule that provides an exception

to the general rules, Rule 2. Crowley primarily alleges that the

Allegiance violated Rule 13, which provides that “any vessel

overtaking any other shall keep out of the way of the vessel

being overtaken.” Rule 13(a). A ship is “overtaking” another

when approaching “from a direction more than 22.5 degrees”

aft of perpendicular. Rule 13(b). Further, “[w]hen a vessel is

in any doubt as to whether she is overtaking another, she shall

assume that this is the case and act accordingly.” Rule 13(c).

The Allegiance, which was approaching the Sea King from

“at least 22.5 degrees aft of perpendicular,” was overtaking

the tug. Nothing in the text of Rule 13 allows us to escape the

conclusion that as the overtaking vessel, the Allegiance had

the responsibility of avoiding the Sea King. 

[2] Crowley also argues that, by failing to slow down, the

Allegiance violated Rule 8(e), which provides that “[i]f necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by

stopping or reversing her means of propulsion.” Rule 8(e). On

its face, the text of Rule 8(e) supports Crowley’s position. The

pilot of the tanker testified that the proximity of the vessels

had exceeded his “comfort zone,” and yet he took no action

to avoid the collision other than a call to the Sea King to

ascertain if that vessel was “OK.” Finding that the agreed

maneuvers of the three vessels precluded a “mechanical appliCROWLEY MARINE SERVICES v. MARITRANS INC. 5129
cation” of the rules, the district court diluted Rule 8 by allocating some liability to Maritrans for failing to take more

decisive action once the proximity of the Sea King exceeded

Captain Semler’s comfort zone. But Rule 8(e) sets forth specific actions to be taken in order to avoid collision, including

reducing speed or changing course. Cf. In re Nat’l Shipping

Co. of Saudi Arabia, 147 F. Supp. 2d 425, 440 (E.D. Va.

2000) (allocating fault 65% to party for, in part, failing to

reduce speed or change course in violation of Rule 8). Given

the overriding policy of the COLREGS and other navigational

rules, “it is not necessary for a collision to be imminent or

even probable before the obligation imposed by them accrues

. . . . There is a danger or risk of collision whenever it is not

clearly safe to go on.” Ocean Marine Ltd. v. United States

Lines Co., 300 F.2d 496, 499 (2d Cir. 1962) (applying earlier

version of the inland navigational rules) (internal marks omitted). On the facts of this case, the Allegiance’s failure to comply with Rule 8(e)’s specific directives cannot be lightly

overlooked. 

[3] If Rules 8 and 13 of the COLREGS apply to Maritrans’

actions, the apparent statutory violations would inform, in

great part, the allocation of liability between the Allegiance

and the Sea King. Under admiralty law, if a ship is in violation of an applicable statutory duty at the time of a collision,

there is a presumption that the violation contributed to the

accident. The Pennsylvania, 86 U.S. 125, 136 (1873), overruled on other grounds in United States v. Reliable Transfer

Co., Inc., 421 U.S. 397, 411 (1975). This presumption may be

rebutted by a showing that the statutory violation “could not

reasonably be held to have been a proximate cause of the collision.” Churchill v. The F/V Fjord, 892 F.2d 763, 770 (9th

Cir. 1988) (quoting Pac. Tow Boat Co. v. States Marine

Corp., 276 F.2d 745, 749 (9th Cir. 1960)) (internal quotation

marks omitted). Where both parties to a collision share in the

fault, “liability for such damage is to be allocated among the

parties proportionately to the comparative degree of their

fault.” Reliable Transfer, 421 U.S. at 411. Although there is

5130 CROWLEY MARINE SERVICES v. MARITRANS INC.
no pre-determined formula for weighing COLREGS violations against each other, the violations must be accounted for

under the Pennsylvania rule. 

II. THE “SPECIAL CIRCUMSTANCES” EXCEPTION

Maritrans does not contest that its actions would violate

Rules 8 and 13. Rather, Maritrans tries to fit within the special

circumstances exception set forth in Rule 2 by emphasizing

that no court has applied the overtaking rule to vessels that

were operating in concert pursuant to maneuvers conducted

under an agreed-upon plan. The district court, although criticizing Maritrans’ attempt to stretch the special circumstances

exception, ultimately adopted this reasoning. 

[4] 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.” The question is whether such special circumstances

are limited to those involving immediate danger, or include

circumstances that are “special” in a more generic sense. The

district court found, and Maritrans argues on appeal, that

“courts have either expanded the scope of Rule 2(b)’s special

circumstances or have created a wholly separate category of

special circumstances involving vessels operating in concert

and pursuant to agreed maneuvers.” We disagree on both

counts. 

[5] The plain language of the statute is our starting point.

See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)

(“Our first step in interpreting a statute is to determine

whether the language at issue has a plain and unambiguous

meaning . . . .”). By its terms, Rule 2 limits “special circumstance[s]” to those circumstances “which may make departure

. . . necessary to avoid immediate danger.” In other words,

vessels may justify departure from the COLREGS in order to

CROWLEY MARINE SERVICES v. MARITRANS INC. 5131
avoid immediate danger, but not for more generic special circumstances.2 Cf. Dahlia Maritime Co., Ltd. v. M/S Nordic

Challenger, 1993 WL 268413, at *16 n.2 (E.D. Louis. 1993)

(applying Rule 2 where adherence to the COLREGS led to an

“impending unavoidable collision”); In re Otal Investments,

Ltd., 2006 WL 14512, at *7 (S.D.N.Y. 2006) (holding that

Rule 2 “applies to facts ‘where there is an immediate danger,

perfectly clear; and the departure from the rules must be no

more than is necessary’ ”) (quoting Yang-Tsze Ins. Ass’n v.

Furness, Withy & Co., 215 F. 859, 861-62 (2d Cir. 1914).

This interpretation is echoed in one of the leading admiralty

law treatises: “Courts, had they been so minded, could have

sailed a whole armada of exceptions through the opening

made by this Rule. Actually, it has been very narrowly construed, and will not excuse a violation of the plain mandate of

the more specific Rules . . . .” Grant Gilmore & Charles L.

Black, Jr., The Law of Admiralty 508 (2d ed. 1975). 

[6] Adhering to the plain meaning of the statute is particularly appropriate in this context. The COLREGS are strictly

construed, to the extent that “[t]he general lawyer . . . must

accustom himself to a far different atmosphere in dealing with

these Rules, for they are strictly and literally construed, and

compliance is insisted upon.” Gilmore & Black, The Law of

Admiralty 489.3 The plain text of the COLREGS allows only

2Our reading of the text of Rule 2 finds support in decisions applying

Article 27 of the predecessor to the Inland Water Rules, the text of which

is exactly the same as Rule 2. In Zim Israel Navigation Co., Ltd. v. S.S.

American Press, 222 F. Supp. 947 (S.D.N.Y. 1963), the court noted that

under Article 27, “[d]eparture from the statutory duty imposed upon the

vessels is justified only when necessary to avoid immediate danger, and

the burden of proof is upon the vessel which alleges justification for the

departure.” Id. at 954 (internal citations omitted). 

3The long tradition of applying the rules strictly reflects their origins in

earlier practice. See Belden v. Chase, 150 U.S. 674, 698-99 (1893)

(describing the rules for preventing collisions, as they existed on the eve

of the twentieth century, as “not mere prudential regulations, but binding

enactments, obligatory from the time that the necessity for precaution

begins” and insisting that they be “rigorously enforced”). 

5132 CROWLEY MARINE SERVICES v. MARITRANS INC.
one avenue to steer clear of their obligations: the “special circumstances” exception enshrined in Rule 2,4

 which is limited

to situations involving immediate danger. 

In reaching a contrary conclusion, the district court relied

upon a series of cases, cited by Maritrans, holding that vessels

operating in concert participate in a “special circumstance”

within the meaning of Rule 2. These cases, which pre-date the

current COLREGS by many decades, either reflect unique circumstances or (as noted by the district court) apply a relatively casual version of the special circumstances exception.

Because these cases do not interpret Rule 2 and, in fact, conflict with the plain meaning of the current COLREGS, we

decline to adopt their analysis. 

In The Joseph Vaccaro, 180 F. 272 (D.C. La., 1910), the

court declined to apply “hard and fast rules as to overtaking

or crossing” because it was difficult to ascertain which vessel

was the overtaking or crossing vessel; indeed, in the facts submitted to the court, the two ships at issue seemed to alternate

roles. Id. at 275. Although the collision in that case involved

a steamship and a tug, the agreed maneuver (delivering a pilot

to the steamship) had unmistakably ended at the time of the

collision; both ships were continuing on their way with no

prior agreement or concurrent communication regarding their

operations in the close quarters of the South Pass of the Mississippi River. Id. at 273-74. 

4Courts have continued to apply an analogous in extremis doctrine that

predates the COLREGS, and excuses violations of the rules where one

vessel is placed in “extreme danger” by the faulty maneuvering of another

vessel. Complaint of G&G Shipping Co., Ltd. of Anguilla v. The M/V

“Nedlloyd VanNoort”, 767 F. Supp. 398, 407-08 (D.P.R. 1991) (quoting

The Blue Jacket, 144 U.S. 371, 392 (1892)). While the relationship

between the in extremis doctrine and the special circumstances exception

in Rule 2 has not been resolved with utmost clarity, both rules allow a

party to a collision to escape liability for violations of the applicable rules

only when necessary to avoid an immediate danger. 

CROWLEY MARINE SERVICES v. MARITRANS INC. 5133
In The Paulsboro, 11 F.2d 625 (S.D.N.Y. 1925), the court

refused to apply the overtaking rule where a tugboat and tank

steamer collided while the tug was guiding the larger vessel

into port. Id. at 626-27 (“[T]he two vessels cannot, in my

opinion, be regarded as navigating independently, and the situation is one of special circumstances rather than that of an

overtaking vessel.”). Noting the dearth of caselaw on point,

the court relied on an earlier Second Circuit decision, The

Monterey, 161 F. 95, 97 (2d Cir. 1908), that had reached a

similar conclusion in refusing to apply presumptions of liability for violations of the “steering and sailing rules” (precursors of Part B of the current COLREGS, which are entitled

“Steering and Sailing Rules”) when the vessels were engaged

in an agreed maneuver. 

[7] To the extent that these cases hold that the cooperation

between a tug boat and her charge is a “special circumstance,”

either within or without Rule 2(b), that excuses neglect of the

COLREGS, we decline to embrace their teaching. Scant evidence in cases predating the contemporary COLREGS by several decades cannot overcome both the plain language of Rule

2, which provides an exception to the other rules only when

“necessary to avoid immediate danger,” and the overriding

mandate to apply the COLREGS strictly. 

[8] This result does not lead to awkward consequences, as

Maritrans would have us believe. The COLREGS prescribe a

set of “rules of the road” for international navigable waters,

ensuring that all vessels understand the same rules of engagement. There is no reason that these rules should not also apply

to vessels under full sail in the Puget Sound, even those vessels operating in concert. As written, the COLREGS reflect

numerous policy judgments that are not vitiated by the fact of

agreed cooperation between two vessels. 

An examination of the facts of this case serve to illuminate

this point. Maritrans argues that the Allegiance was supposed

to overtake the tugs, and thus should not be held liable under

5134 CROWLEY MARINE SERVICES v. MARITRANS INC.
the overtaking rule. But the COLREGS do not prohibit one

vessel from overtaking another, they simply state that the

overtaking vessel shall be responsible for avoiding the other.

The policy behind this rule reflects realities of navigation, and

is not changed by the fact that the overtaken vessel has agreed

to be overtaken. For example, in commenting on an identical

overtaking rule in the Inland Navigational Rules Act of 1980,

a United States Senate report recognized “that the overtaking

vessel should have less problem in keeping clear and avoiding

collision than the vessel being overtaken, even if the overtaken vessel has agreed to allow the maneuver.” S. Rep. No.

96-979, at 12 (1980) as reprinted in 1980 U.S.C.C.A.N. 7068,

7079 (1980).5

Another example is perhaps even clearer—the district court

diluted the application of Rule 8, which requires vessels to

take action to prevent collision. A vessel perceiving such a

risk of collision should not be released from the COLREG’s

specific instructions to take precautionary measures simply

because it is engaged in a predetermined maneuver.6 Cf. The

Monterey, 161 F. at 97 (applying an exception for special circumstances, but noting that “[t]he vessels are co-operating in

an agreed maneuver, and each is bound to act prudently

toward the agreed end”). Maritrans’ theory is akin to standing

on principle and insisting on the right of way even in the face

of an imminent collision. 

5Although distinct from the COLREGS, the legislative history underlying the adoption of the Inland Navigational Rules is instructive in this

case. In adopting the Inland Navigational Rules, Congress noted that “the

bill attempts to make them as consistent as possible with the [COLREGS].” S. Rep. No. 96-979, at 1 (1980), as reprinted in 1980

U.S.C.C.A.N. 7068, 7068 (1980). 

6The maneuver situation is different than the judicially-recognized in

extremis exception. Maritrans does not argue that the Allegiance’s violations of the COLREGS were taken in response to an immediate danger

created by the Sea King. 

CROWLEY MARINE SERVICES v. MARITRANS INC. 5135
[9] Our analysis of the applicability of the COLREGS does

not, of course, determine the ultimate allocation of liability in

this case. Despite construction of the COLREGS, including

the special circumstances exception, in accord with their plain

meaning, the assignment of liability is not absolute. We leave

to the district court to factor and weigh relative liability in a

fault allocation analysis. See, e.g., Complaint of G & G Shipping Co., 767 F. Supp. at 412 (apportioning liability between

the parties 80% and 20% upon finding several violations of

the COLREGS on both sides); Hal Antillen N.V. v. Mount

Ymitos MS, 147 F.3d 447, 451-52 (5th Cir. 1998) (upholding

part of a district court decision apportioning minimal liability

on the basis of a violation of Rule 5 because the violation had

not been a proximate cause of the collision). 

The flexibility and adaptability of the apportionment concept explain why we are unswayed by the collection of policy

arguments offered by Maritrans.7 The blameworthiness of

each party’s conduct would ultimately depend not only on the

rules that each party violated but on whether those violations

actually caused the collision, considering all the facts of the

case. See, e.g., Pennzoil Producing Co. v. Offshore Express,

Inc., 943 F.2d 1465, 1472 (5th Cir. 1991) (recognizing that

under The Pennsylvania and Reliable Transfer, 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). Therefore, the district court should consider the pre-arranged escort plan, along with all the other

facts, when it apportions fault. It may well be that the Allegiance’s violation of Rule 8(e) contributed relatively little to

the eventual collision in relation to the Sea King’s failure to

adjust course and Captain Nekeferoff’s apparent loss of situa7The Supreme Court explained that it established comparative fault liability in admiralty in order to bring “flexible and fair remedies in the law

maritime.” Reliable Transfer Co., 421 U.S. at 409. It is this flexibility that

allows a “ ‘just and equitable’ allocation of damages” proportional to the

comparative degree of fault of each party. Id. at 411. 

5136 CROWLEY MARINE SERVICES v. MARITRANS INC.
tional awareness. However, neither is there any basis for concluding (on the other extreme) that such considerations bypass

the COLREGS entirely. 

[10] The judgment of the district court is REVERSED, and

this case is REMANDED for further proceedings consistent

with this opinion. 

CROWLEY MARINE SERVICES v. MARITRANS INC. 5137