REVISED, JANUARY 18, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 99-30913

________________________

THE TOKIO MARINE & FIRE INSURANCE CO., LTD., ET AL.

Plaintiff,

v.

FLORA MV, ET AL.

Defendant.

_________________________________________________________________

FORMOSA PLASTICS TANKER CORP.

Plaintiff-Appellee,

v.

FLORA MV, HER ENGINES, TACKLE, APPAREL, ETC., IN REM; 

SEGESTA SHIPPING CO., LTD.; EFNAV CO. LTD., IN PERSONAM

Defendant-Appellant.

_________________________________________________________________

In the Matter of the complaint of FLORA MV,

For Exoneration from or Limitation of Liability

SEGESTA SHIPPING CO., LTD.; EFNAV CO., LTD.; FLORA MV

Petitioner-Appellant,

v.

FORMOSA PLASTICS TANKER CORP.

Claimant-Appellee.

_________________________________________________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana.
* Circuit Judge of the United States Court of Appeals for

the Seventh Circuit, sitting by designation.

1“Interests” refers to the owners and/or managers of the two

vessels.

2

_________________________________________________________________

January 3, 2001

Before KING, Chief Judge, WIENER, and CUDAHY,* Circuit Judges.

CUDAHY, Circuit Judge: 

On the evening of April 11, 1997, two vessels collided in

the Gulf of Mexico. The chemical tanker M/V Formosa SIX

(“Formosa Six”) was heading outbound from the mouth of the

Mississippi River, going south toward a voluntary fairway system

located in an area called the Southwest Pass. The bulk carrier

M/V Flora (“Flora”) was heading in a northerly direction inbound. 

Despite the apparent expanses of available water, Flora managed

to strike Formosa Six, damaging both vessels and causing Formosa

Six’s liquid chemical cargo, owned by Mitsubishi Corporation, to

pour into the sea. The collision occurred south of a sea buoy

located just south of the Southwest Pass. 

In April 1997, Mitsubishi filed a claim in the Eastern

District of Louisiana against Flora and Six interests1 for the

cargo lost and damaged. The owner of Formosa Six, Formosa

Plastics Tanker Corporation, filed a separate action against

Flora interests. Flora’s owners (Segesta Shipping Company, Ltd.)

and managers (EFNAV Company, Ltd.) filed a petition seeking
3

exoneration from or limitation of liability. These cases were

consolidated. Flora interests later filed a counterclaim in the

consolidated case against Formosa, seeking recovery of damages

sustained by Flora. Mitsubishi filed a motion for partial

summary judgment against Flora interests in April 1998, and the

district court granted that motion, finding that Flora was at

fault in the collision and was therefore obliged to fund the

cargo damage claim. Flora interests filed a motion for

reconsideration, which the court denied. The court bifurcated

the liability and damage issues, and the liability trial was held

in December 1998. The court issued an order in January 1999,

finding Flora 80 percent responsible for the collision and Six 20

percent at fault. Flora again filed a motion for

reconsideration, which the court denied. Following a stipulation

on damages, the court entered a damages judgment in August 1999,

awarding Formosa Six interests $3,343,179, plus interest and

costs, and dismissing Flora’s limitation action. The judgment

also acknowledged settlement by the parties of the Mitsubishi

claim by contributions of $220,000 from Formosa interests and

$880,000 from Flora interests. Flora appeals and we affirm.

In this appeal, Flora argues that the district court erred

as a matter of law in determining the proximate cause of the

collision by failing to apply pertinent law. In the alternative,

Flora contends that the district court’s apportionment of fault
4

was clearly erroneous. We address these arguments in turn. 

I.

Flora contends that the district court erred as a matter of

law by failing to apply several arguably applicable regulations. 

Collisions at sea are governed by internationally accepted

regulations recognized by treaty; in the United States these are

codified at 33 U.S.C. foll. § 1602 (“COLREGs”). In arguing that

the district court failed to properly apply these regulations,

Flora apparently hopes that this court will review the findings

of the trial court de novo rather than under the appropriate

clearly erroneous standard. Conclusions of law are, of course,

reviewed de novo. See Phillips Petroleum Co. v. Best Oilfield

Servs., 48 F.3d 913, 915 (5th Cir. 1995). When reviewing mixed

questions of law and fact, this court should reverse only if the

findings are based on a misunderstanding of the law or a clearly

erroneous view of the facts. See Bose Corp. v. Consumer’s Union

of U.S., Inc., 466 U.S. 485, 501 (1984). Because the proper

regulations were considered and applied, as we discuss below, we

find that there was no misunderstanding of the law.

Flora’s argument that the district court erred in its

application of the relevant regulations is grounded in a rule for

finding liability in collisions at sea—-the Pennsylvania rule. 

Under the Pennsylvania rule, if a vessel involved in a collision

was violating a statutory rule intended to prevent collisions,
5

the burden shifts to the violating vessel to show that its fault

could not have been a cause of the accident. See The

Pennsylvania, 86 U.S. (19 Wall.) 125 (1874); see also Garner v.

Cities Serv. Tankers Corp., 456 F.2d 476, 480 (5th Cir. 1972). 

The rule thus creates a presumption that one who violates a

regulation intended to prevent collisions will be deemed

responsible; but that presumption is rebuttable. See Otto

Candies, Inc. v. M/V Madeline D., 721 F.2d 1034, 1036 (5th Cir.

1983). Further, as discussed below, the Pennsylvania rule

applies only to violations of statutes that delineate a clear

legal duty, not regulations that require judgment and assessment

of a particular circumstance. 

Specifying the rules that her adversary allegedly violated,

Flora first contends that the trial court erred by failing to

take into account Formosa Six’s violation of COLREG Rule 5 in

apportioning responsibility for the collision. COLREG Rule 5

provides:

Every vessel shall at all times maintain a proper look-out

by sight and hearing as well as by all available means

appropriate in the prevailing circumstances and conditions

so as to make a full appraisal of the situation and of the

risk of collision.

33 U.S.C. foll. § 1602. Flora is asking this court to find fault

with the district court’s failure to acknowledge that Six’s lack

of a look-out was “crucial,” and the proximate cause of the

accident. Because Flora is here taking issue with the district
6

court’s finding of fact, we review this aspect of the district

court’s decision for clear error. See Bose, 466 U.S. at 501. 

The trial court found that Formosa Six had not complied with

the cited regulation; that is not disputed. Thus, Flora’s

argument involves the district court’s weighing of the evidence,

not its application of the law. The court erred, Flora contends,

by failing to impose the Pennsylvania burden. But the district

court clearly did consider the predicate facts that constitute a

violation of COLREG Rule 5. The district court also found that

Formosa Six violated that regulation, and that such failure was a

contributing cause of the collision. See Tokio Marine & Fire

Ins. Co., Ltd. v. M/V FLORA, No. CIV. A. 97-1154, 1999 WL 14000,

at *14 (E.D. La. Jan. 11). The court, in fact, found that this

failure “was a contributory cause, though a relatively small one,

of the collision.” Id. at *14. Flora argues that this was an

error of law, and then cites the importance of complying with

Rule 5 as well as the importance of having a look-out on the

Formosa Six at this critical juncture. The importance of the

regulation does not change its application, nor does it impugn

the finding of fact made by the district court. The dispute

Flora has is with the district court’s finding of fact that

Formosa Six’s failure to have a look-out was not as “crucial” a

factor in the collision as Flora seeks to make it. However,

neither Formosa Six nor the district court clearly indicated why
7

this failure was not to be considered a more critical cause of

the accident. But because this finding is reviewed only for

clear error, and Flora has not demonstrated error of that sort,

we find that the district court, in its considered judgment,

properly weighed Formosa Six’s violation of Rule 5 in determining

the proximate cause of the collision.

Flora next argues that the district court failed to impose

the “requirement” embodied in COLREG Rule 8(c) on Formosa Six. 

Rule 8(c) states:

If there is sufficient sea room, alteration of course alone

may be the most effective action to avoid a close-quarters

situation provided that it is made in good time, is

substantial and does not result in another close-quarters

situation.

33 U.S.C. foll. § 1602. To fail to refer to this provision of

the rule explicitly in its findings of fact is certainly not

clear error, let alone a mistake of law. First, the district

court did consider Rule 8 in making its findings. The court

recognized a duty under Rule 8 to take action to avoid collision,

and that both Flora and Formosa Six had failed to fulfill this

duty. See Tokio Marine & Fire, 1999 WL 14000, at *12. Second,

the language of Rule 8(c) is suggestive, rather than mandatory. 

The Pennsylvania rule applies in cases in which a “precise and

clearly defined duty” is mandated by the relevant statute, not

when the statute “calls for the use of interpretation and

judgment.” Interstate Towing Co. v. Stissi, 717 F.2d 752, 756
8

(2d Cir. 1983). The provision of the rules at issue here falls

within the latter category rather than the former. Thus, the

burden did not have to shift to Formosa Six for a violation of

Rule 8(c), and the court cannot have erred in not shifting more

of the onus on Formosa Six for violating it. Indeed, the

Pennsylvania rule was not even mentioned in Zim Israel Navigation

Co., Ltd. v. Special Carriers, Inc., M/V, 611 F.Supp. 581 (E.D.

La. 1985), a case in which one party was deemed to have violated

Rule 8(c). The fact that the rule had been violated was

considered in determining the cause of the collision, but no

presumption of fault was invoked. It is evident that the

district court did not err in its application of Rule 8, nor in

its failure to mention Rule 8(c). 

Flora next contends that “special circumstances” justify its

own violations of the COLREGs, and that these same circumstances

demand a finding that Formosa Six violated COLREG Rule 2. That

rule states:

Nothing in these Rules shall exonerate any vessel, or the

owner, master or crew thereof, from the consequences of any

neglect to comply with these Rules or the neglect of any

precaution which may be required by the ordinary practice of

seamen, or by the special circumstances of the case.

33 U.S.C. foll. § 1602. The “special circumstances” to which

Flora refers involve an alleged custom that, in the Southwest

Pass, outbound vessels must take extra care when leaving the area

to avoid a collision, and inbound vessels have the right of way. 
2When proceeding into and out of the Mississippi River via

the Southwest Pass, vessels are required to carry a bar pilot in

addition to their regular crew. Bar pilots are typically picked

up and dropped off near the sea buoy located just south of the

Southwest Pass. The bar pilots who testified in this case were

the pilots for Flora and Formosa Six that evening. They were in

a position to witness the movement of the vessels prior to the

collision.

9

But the existence of such a custom was convincingly undermined by

two bar pilots’ testimony.2 On the other hand, Captain Douglas

Torborg, the Flora expert mariner, testified to the existence of

the custom. But the district court did not take this alleged

custom into account in determining fault, which Flora contends

was an error of law.

However, a court does not err as a matter of law by failing

to take into account a custom whose existence is successfully

disproved. The court properly found that Flora’s violation of a

port-to-port passing agreement, which it had entered into with

Six some minutes before the collision, had “no basis in maritime

law or custom.” Tokio Marine & Fire, 1999 WL 14000, at *12. We

see no reason to conclude that an alleged custom giving inbound

vessels right of way vitiated the port-to-port agreement, or

required apportionment of greater responsibility for the

collision to Formosa Six.

Both bar pilots testified that there was no such custom. An

amicus brief filed by the Associated Branch Pilots of the Port of

New Orleans asserts the same, arguing that there is no custom
10

assigning a “right of way” in the Code of Federal Regulations or

in the practice of pilots and mariners. This conclusion is

buttressed by the decision of this court in Hal Antillen N.V. v.

Mount Ymitos MS, 147 F.3d 447 (5th Cir. 1998), which reversed a

district court’s finding that—in the area at issue in this

case—there existed a custom of passing starboard to starboard,

not port to port, as the COLREGs provide. Noting that a custom

that conflicts with the COLREGs would be “confusing,” that this

custom was not published and that there was “highly contradictory

testimony” about whether the custom existed, this court held that

the district court’s finding that such a custom existed was

clearly erroneous. See id. at 451. Flora does not dispute this,

but instead argues that because this court in Hal Antillen N.V.

apparently left intact the district court’s finding that inbound

vessels have the right of way in the Southwest Pass, that custom

does exist. We believe, however, that there is sufficient

evidence in the present case to support the district court’s

apparent conclusion that there is no right-of-way preference for

inbound ships. 

Even if there were such a custom, the district court found

that the present vessels had entered into an agreement to pass

port to port. Any such agreement would override custom. As we

noted in Canal Barge Co., Inc. v. China Ocean Shipping Co., “Even

when the custom prevails, pilots of approaching vessels may agree
11

to pass in some fashion other than in the manner provided by

habitual practice.” 770 F.2d 1357, 1361 (5th Cir. 1985). 

II.

Flora’s next line of attack is aimed at the district court’s

findings of fact that led to its conclusion that Flora was 80

percent at fault for the collision. We recapitulate briefly the

court’s findings that led to this conclusion. Formosa Six had

just completed a downriver passage from the Mississippi River,

and was proceeding from the Southwest Pass in the Gulf of Mexico

toward the sea buoy just south of the Southwest Pass. Six was

being directed by compulsory Bar Pilot Kevin Leger. Vessels

departing the Southwest Pass proceed on a southerly heading into

the voluntary fairway system, which looks like an inverted “Y”

and bifurcates into two legs proceeding respectively in the

southeast and the southwest directions. Six was being steered by

hand, aided by two radars and one Automated Radar Plotting Aid

(ARPA). The ARPA was equipped with a closest point of approach

(CPA) alarm, set to alert navigators to any vessel that would

pass within a 0.5 nautical mile radius of Six within a 20-minute

time period. Flora was proceeding on a northerly course in the

Gulf of Mexico, inbound and seaward of the Southwest Pass sea

buoy. Flora was equipped with an ARPA and three radars. 

However, Captain George Gatsos, the vessel’s master, testified at
3Flora argues that there was no such agreement. However,

the fact that there was an agreement was not disputed at trial

either by Flora’s arguments or by Captain Gatsos’ testimony.

12

trial that he used only one radar and did not turn on the ARPA

that evening.

Somehow, these two vessels, proceeding on a clear night in a

relatively large fairway, collided. How this could happen with

abundant sea room available may be mystifying to landlubbers, but

navigation at night has its special challenges. What exactly

happened here was a source of furious contention in the trial

court. At around 2005 hours, as Six was entering the Gulf of

Mexico, the Six crew observed Flora approaching and set Flora on

its ARPA with a CPA of 0.5 and a CPA time of 20 minutes. Thus,

the CPA alarm would sound when Flora was in a position to be

within 0.5 nautical miles of Six not more than 20 minutes later. 

At about 2007, Bar Pilot Leger, aboard Six, conferred by radio

with Flora and agreed to pass port-to-port.3 Six then turned to

starboard to “make a lee” (turning to protect a small craft from

the wind) to shelter Leger in departing the ship. At no time in

this sequence did Six have a full-time watch. Shortly

thereafter, the pilot boat that had picked up Leger asked Flora

to make a lee for Bar Pilot Samuel Eddy to board Flora. Flora

stated that it would turn to starboard to make a lee for the bar

pilot, but instead turned to port. Flora Captain Gatsos did not

notify the pilot boat or the Formosa Six that he was turning to
13

port instead of to starboard. Thus, according to the district

court, Flora made a sudden, hard and unexpected turn to port just

prior to the collision. A little before this, after dropping off

Pilot Leger, Formosa Six returned to a southerly course and

shortly learned that it had moved into a dumpsite at the west

side of the fairway. The vessel turned somewhat to port in an

effort to maneuver out of the dumpsite area, still expecting to

accomplish a port-to-port passage. 

The location of the collision, and the speed at which the

two vessels were traveling, was hotly disputed at trial. The

district court ultimately found that the location of the

collision was consistent with Formosa Six’s version of the story:

it occurred approximately at the position claimed by Six and was

based on a global satellite positioning reading taken by Flora’s

third mate at the time of collision—-on Six’s side of the

fairway. The court also based this finding on its acceptance of

the testimony of Formosa Six’s expert witness, Gary Maseuth, as

well as on the location of the chemical spillage from Six on the

ocean floor. The court rejected the testimony of Captain

Torborg, Flora’s expert mariner, who testified that no one could

determine the position of the vessels at the time of collision,

and that global satellite positioning data can be inaccurate. 

This district court finding was significant because it showed

that the Flora “had moved far from the center of the safety
14

fairway and was encroaching significantly on to the part of the

fairway occupied by the FORMOSA SIX.” Tokio Marine & Fire, 1999

WL 14000, at *8. The court also found that Flora was traveling

at a speed of at least two knots, which was significant because,

if Flora had been going much slower, as Captain Gatsos testified,

it would have been powerless to avoid the accident in the last

few minutes, when a collision appeared likely to occur. 

This court reviews the district court’s findings of fact for

clear error. See Fed.R.Civ.Proc. 52(a); American River Trans Co.

v. Kavo Kaliakra SS, 148 F.3d 446, 449 (5th Cir. 1998). This

standard also applies to apportionment of fault. See Inland Oil

& Transp. Co. v. Ark-White Towing Co., 66 F.2d 321, 325 (5th Cir.

1983), abrogated on other grounds, City of Milwaukee v. Nat’l

Gypsum Co., 515 U.S. 189 (1995). The Supreme Court articulated

the meaning of this standard of review: 

If the district court’s account of the evidence is plausible

in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the

evidence differently. Where there are two permissible views

of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). 

Findings based on the credibility of witnesses demand even

greater deference. See Fed. R. Civ. P. 52(a); Anderson, 470 U.S.

at 575. Flora points to nothing that resembles clear error.

A.
15

Flora argues vociferously that the trial court erred by

using the respective distance toward each other covered by the

two vessels immediately before the crash to determine the 80-20

proportion of liability between the parties. Flora notes,

correctly, that “[n]o jurisprudence supports an apportionment of

fault based on distance traveled from two arbitrary points.” The

calculation of distance covered, Flora contends, was the sole

basis for the district court’s apportionment of fault. Flora

claims that Formosa Six was more at fault because its turns were

so subtle that Flora could not detect them and thereby come to

the realization that port-to-port passing would not be feasible. 

Formosa Six, Flora contends, was in the best position to

recognize Flora’s turning movement for what it was and steer out

of the way. Further, Flora argues, the fact that Six was

traveling much faster than Flora meant that it could have avoided

the accident more easily. All these arguments imply that, if the

district court had taken them into account—rather than

comparative distances covered by the vessels after an arbitrary

moment in time—its findings as to proportion of fault would have

been different. But the premise underlying this argument is

incorrect. 

The district court did take into account other factors in

calculating the proportion of fault attributable to each party. 

It found that an “overwhelming percentage of the accident was
16

caused by Flora’s violation of the port-to-port agreement and

lack of communication with the SIX.” Tokio Marine & Fire, 1999

WL 14000, at *17. It took account of Formosa Six Captain KuoHsiung Chen’s lack of awareness, which it noted “may have

contributed to the collision.” Id. And it concluded that “the

brunt of the blame” fell on Flora, because it “creat[ed] the risk

of collision by executing a precipitous turn in direct violation

of its port-to-port agreement with the FORMOSA SIX.” Id. The

court was also clearly influenced by the post-accident

alterations in Flora’s log book. “The unexplained alteration of

a ship’s record of maneuvers ‘not only cast[s] suspicion on the

whole case of the vessel, but creates a strong presumption that

the erased matter was adverse to her contention.’” Andros

Shipping Co. v. Panama Canal Co., 184 F.Supp. 246, 259 (D.C.Z.

1960) (quoting The Chicago, 94 F.2d 754, 762 (9th Cir. 1937)). 

The court certainly took distance traveled into account, but

that was clearly not the only factor that contributed to its

conclusion as to the proportions of fault. We do note that the

distance traveled toward each other during the four minutes

before the collision, as the court found, was consumed about 80

percent by Flora and 20 percent by Formosa Six. It may be

unusual that the trial court chose to cite their proportions in

close proximity to its apportionment of fault. But using the

respective distances covered in moving to the point of collision
17

is not arbitrary or irrational. These proportions do tend to

show each vessel’s linear contribution to moving from a safe

course to a collision course. In any event, even if we might

have given different weight to different pieces of evidence than

did the district court, this is not a reason to disturb that

court’s findings of relative responsibility, absent a showing of

clear error. Here, there was no such showing.

B.

Flora also argues that it did not unilaterally terminate the

port-to-port agreement, and that therefore the trial court’s

finding that it had done so was clearly erroneous. It argues

that “termination” implies that another type of passing was

attempted, such as starboard-to-starboard. Perhaps a better term

for Flora’s actions is that it “violated” the port-to-port

agreement rather than “terminated” it. The facts are still the

same: Flora agreed to pass port-to-port and then turned sharply

to port just prior to collision. There is no clear error in the

district court’s finding here. 

In the alternative, Flora argues that it was not

unilaterally responsible for the failure of the port-to-port

agreement because Formosa Six had made several gradual

adjustments to port prior to its last-minute turn; thus, both

parties were responsible. The trial court did not find that

Flora was unilaterally responsible for the failure of the
4Pilots Leger and Eddy, Captain Chen, and Captain Gatsos all

testified to this fact at trial.

18

agreement; the court explicitly concluded that both vessels

violated the agreement. The district court took into account

Formosa Six’s gradual adjustments in determining Six’s fault in

the collision, and it relied on the bar pilots’ testimony that

Six’s gradual turn did not contribute to the collision as heavily

as Flora’s sharp turn. 

Last, Flora makes a half-hearted argument that there was no

port-to-port agreement, because once each vessel started

maneuvering to make a lee, the agreement was abandoned and the

vessels were only required to adhere to the COLREG requirements. 

This argument is without merit. The navigators of both vessels

agreed by radio that they would pass port to port, that agreement

was recorded and the recording was offered into evidence at

trial.4 The fact that there was such an agreement was stipulated

by all parties as uncontested. 

C.

Next, Flora contends that the trial court committed clear

error when it found that Formosa Six might have been able to

steer clear of Flora if a look-out had been on watch. Flora

objects to the use of the word “might,” since Flora believes it

is uncontroverted that, if Six had had a look-out, the accident

could have been avoided. Captain Torborg testified that Formosa
19

Six could have turned to starboard any time before the collision

and thus avoided the collision altogether. Whether to accept

Torborg’s testimony is the prerogative of the trial court, which

is in a position to assess the credibility of witnesses. Again,

the district court considered Formosa Six’s fault, and came to

the conclusion that—despite Six’s critical error in failing to

have a look-out at all times—the failure was not a major factor

in causing the collision. There is simply nothing in the record

to demonstrate that this conclusion is erroneous. 

D.

Flora also argues that the district court’s conclusion that

it turned hard to port was not supported by the evidence. Flora

claims that the testimony on which the district court relied—that

of the pilots in the pilot boat—was unreliable because they were

in no position to determine speed and did not see the collision. 

While it is true that they did not see the collision itself, they

could see much of the maneuvers of the vessels before the crash. 

The district court carefully balanced the testimony of Pilot Eddy

against the testimony of Captain Gatsos, and chose to credit

Pilot Eddy’s version of the story. Gatsos testified that his

turn to port was not rapid or sudden but part of a long turn

commenced long before the collision occurred. But Eddy, the

court noted, “clearly saw the FLORA make a sudden turn hard to

port about two minutes before the collision.” Tokio Marine &
20

Fire, 1999 WL 14000, at *4. Leger testified to the same effect. 

See id. Thus, although the two bar pilots were in no position to

witness the actual collision, the district court accepted their

testimony that they were able to recognize Flora’s sharp turn to

port shortly before the collision. We see no clear reason to

reject this conclusion. We also see no reason to reject the

trial court’s conclusion that the pilots’ testimony was credible. 

It was reasonable to reach such a conclusion: the pilots were

disinterested observers, their account was consistent with

Formosa Six’s account and their account was contradicted only by

that of a witness found not to be credible by the district

court—Captain Gatsos. 

III.

For the foregoing reasons, we AFFIRM the judgment of the

district court.