22-1765-cv (L)

In the Matter of Energetic Tank, Inc. 

In the

United States Court of Appeals

For the Second Circuit

________

AUGUST TERM 2023

ARGUED: JANUARY 18, 2024

DECIDED: JULY 26, 2024

Nos. 22-1765, 22-2774, 22-2871,

22-2883

IN THE MATTER OF ENERGETIC TANK, INC.

ENERGETIC TANK, INC., as Owner of the M/V ALNIC MC, for 

Exoneration from or Limitation of Liability, 

Plaintiff–Counter-Defendant–Appellant–Cross-Appellee, 

v.

UNITED STATES OF AMERICA,

Claimant–Counter-Claimant–Counter-Defendant–Appellee,

UNKNOWN DEFENDANT, 

Defendant–Counter-Defendant–Appellee,

NAVIN RAMDHUN, 

Defendant–Counter-Claimant–Appellee, 

MARK JOSEPH LIGON, MALACHI SHANNON,

Claimants–Counter-Claimants–Counter-Defendants–Appellees,
2 No. 22-1765-cv

ANDY ACERET, MICHAEL WUEST, JOSHUA PATAT, ASHANTI MOLTON,

DONNOVAN LAMARCUS JONES, AYAKA JOSEPH, XIOMARO CUEVAS 

SOTO, DEVIN MASK, PATRICK JOSEPH, HARUKA RAMDHUN, CHEYSSERR 

LUANGCO, CARMELO CASTRO, PHILIP TORIO, PHILLIP FIELDS, JAMES 

ANDY WOODS, JOHN B. RAY, RODRIGO OWEN TIONQUIAO, JERRELL 

DEAN, CLEMBER MIRANDA, MICHAEL COLLINS, DEDRICK WALKER,

MILTON O. LOVELACE, DAVION REESE, JUAN ROMERO, AKIMWALLE 

WINTER, VARES BELONY, TRACEY LOVELACE, DELANDO BECKFORD,

VICTOR GRANADOS, BYRON JAMAL JOHNSON,

Counter-Claimants–Claimants–Appellees–Cross-Appellants, 

GILLEON GILLIS, JOHN HOAGLAND, KAREN DOYON, RICHARD LOPEZ,

TAYLOR TROY, KAREN BUSHELL, RACHEL ECKELS, THERESA PALMER,

DARRYL SMITH, AMY WINTERS, JACQUELINE INGRAM, GAO YONG,

DONNEL ROBINSON, MR. DOYLE A EBARB, JOSHUA BRUCE HOOK,

JASON LUANGCO, FRANCESCO SANFILIPPO, ALEXIS SANFILIPPO, NESTOR 

CUEVAS SOTO, JOSEPH K ROBBINS,

Counter-Claimants–Claimants–Appellees,

KERRINGTON HARVEY, JASON BALDWIN, BRANDON YORK,

Claimants–Appellees–Cross-Appellants,

MATTHEW MONTGOMERY, JENNIFER SIMON, KAREN TOLLEY, as 

personal representative of the Estate of Brandon Tolley, 

Claimants–Appellees,

BRANDON TOLLEY, 

Claimant.

*

Appeal from the United States District Court

for the Southern District of New York

________

* The Clerk of Court is respectfully directed to amend the official caption in this 

case to conform with the caption above.
3 No. 22-1765-cv

Before: WALKER, CARNEY, and PARK, Circuit Judges.

________

Before dawn on August 21, 2017 in the Singapore Strait, the 

M/V ALNIC (“ALNIC”), a Liberian-flagged oil-and-chemical tanker, 

collided with the U.S.S. JOHN S. MCCAIN (“MCCAIN”), a Navy 

destroyer. Ten Navy sailors died and dozens more were injured. 

Both vessels, and especially MCCAIN, sustained significant damage. 

ALNIC’s owner, Energetic Tank, Inc. (“Energetic”), petitioned 

for exoneration from or limitation of liability for the collision. Fortyone Navy sailors or their representatives (“the Sailor-Claimants”) 

filed claims for damages against Energetic. So did the United States, 

against which Energetic filed a counterclaim. Subsequently, 

Energetic and the United States agreed upon the monetary value of 

the damages to ALNIC and to MCCAIN as $442,445 and $185 million, 

respectively.

First, the district court (Crotty, J.) concluded that Singapore law 

would govern both the determination of liability and the calculation 

of the Sailor-Claimants’ damages. Then, after a Phase 1 bench trial 

concerning only liability, the district court denied Energetic’s petition

for exoneration from or limitation of liability. It allocated fault for the 

collision: 80% to the United States and 20% to Energetic. Based on the 

20% of damages apportioned to Energetic, the claim of the United 

States against Energetic is $36,646,044, plus interest. The district court 

then indicated that it would proceed to a Phase 2 trial, to determine

damages to the Sailor-Claimants. Energetic appealed. 

While the appeal was pending, the district court dismissed 

Energetic’s claims for contribution or indemnity against the United 

States for any damages that might be awarded to the Sailor-Claimants

during the Phase 2 trial as barred by sovereign immunity. Energetic 
4 No. 22-1765-cv

also appealed this order.

Following its decision on sovereign immunity, the district court 

retroactively certified that its earlier opinion on the apportionment of 

liability was a final judgment as to the United States. Subsequently, 

several Sailor-Claimants cross-appealed, challenging the district 

court’s earlier decision applying Singapore law to the calculation of 

damages. We consolidated the various appeals.

We find no error in either the district court’s apportionment of

liability under Singapore law or its sovereign immunity ruling. We 

therefore AFFIRM the district court’s judgment and order on 

Energetic’s appeals. The district court’s choice-of-law ruling, 

however, is a non-appealable collateral order. We accordingly 

DISMISS the Sailor-Claimants’ cross-appeals for lack of jurisdiction.

________

DAVID J. WEINER, Arnold & Porter Kaye Scholer 

LLP, Washington, DC (Stephen K. Wirth, Arnold 

& Porter Kaye Scholer LLP, Washington, DC; 

Thomas H. Belknap, Jr., Alan M. Weigel, Blank 

Rome LLP, New York, NY, on the brief), for 

Plaintiff–Counter-Defendant–Appellant–CrossAppellee Energetic Tank, Inc.

ANNE MURPHY, U.S. Department of Justice, 

Washington, DC (Brian M. Boynton, Stephen 

Flynn, Jessica Sullivan, Kyle Fralick, Thomas M. 

Brown, on the brief), for Claimant–CounterClaimant–Counter-Defendant–Appellee United States 

of America.

PAUL T. HOFMANN, Hofmann & Schweitzer, New 

York, NY (Dario A. Chinigo, on the brief), for 

Counter-Claimants–Claimants–Appellees–Cross-
5 No. 22-1765-cv

Appellants Andy Aceret, et al. and ClaimantsAppellees–Cross-Appellants Kerrington Harvey, et al.

Jacob Shisha, Tabak Mellusi & Shisha LLP, New 

York, NY, for Counter-Claimants–Claimants–

Appellees Joshua Bruce Hook, et al.

Roy C. Dripps, Michael T. Blotevogel, Armbruster 

Dripps Blotevogel, LLC, Maryville, IL, for CounterClaimants–Claimants–Appellees Francesco & Alexis 

Sanfilippo

________

JOHN M. WALKER, JR., Circuit Judge:

Before dawn on August 21, 2017 in the Singapore Strait, the 

M/V ALNIC (“ALNIC”), a Liberian-flagged oil-and-chemical tanker, 

collided with the U.S.S. JOHN S. MCCAIN (“MCCAIN”), a Navy 

destroyer. Ten Navy sailors died and dozens more were injured. 

Both vessels, and especially MCCAIN, sustained significant damage. 

ALNIC’s owner, Energetic Tank, Inc. (“Energetic”), petitioned 

for exoneration from or limitation of liability for the collision. Fortyone Navy sailors or their representatives (“the Sailor-Claimants”) 

filed claims for damages against Energetic. So did the United States, 

against which Energetic filed a counterclaim. Subsequently, 

Energetic and the United States agreed upon the monetary value of 

the damages to ALNIC and to MCCAIN as $442,445 and $185 million, 

respectively.

First, the district court (Crotty, J.) concluded that Singapore law 

would govern both the determination of liability and the calculation 

of the Sailor-Claimants’ damages. Then, after a Phase 1 bench trial 

concerning only liability, the district court denied Energetic’s petition

for exoneration from or limitation of liability. It allocated fault for the 
6 No. 22-1765-cv

collision: 80% to the United States and 20% to Energetic. Based on the 

20% of damages apportioned to Energetic, the claim of the United 

States against Energetic is $36,646,044, plus interest. The district court 

then indicated that it would proceed to a Phase 2 trial, to determine

damages to the Sailor-Claimants. Energetic appealed. 

While the appeal was pending, the district court dismissed 

Energetic’s claims for contribution or indemnity against the United 

States for any damages that might be awarded to the Sailor-Claimants

during the Phase 2 trial as barred by sovereign immunity. Energetic 

also appealed this order.

Following its decision on sovereign immunity, the district court 

retroactively certified that its earlier opinion on the apportionment of 

liability was a final judgment as to the United States. Subsequently, 

several Sailor-Claimants cross-appealed, challenging the district 

court’s earlier decision applying Singapore law to the calculation of 

damages. We consolidated the various appeals.

We find no error in either the district court’s apportionment of

liability under Singapore law or its sovereign immunity ruling. We 

therefore AFFIRM the district court’s judgment and order on 

Energetic’s appeals. The district court’s choice-of-law ruling, 

however, is a non-appealable collateral order. We accordingly 

DISMISS the Sailor-Claimants’ cross-appeals for lack of jurisdiction.
7 No. 22-1765-cv

BACKGROUND2

I. ALNIC’s and MCCAIN’s Underlying Staffing and Steering

Problems.

The Singapore Strait is a relatively confined space in one of the 

world’s busiest shipping corridors. Both ALNIC’s and MCCAIN’s 

crews knew that navigating the Strait required special precautions. 

Yet neither vessel was well prepared. These failures, some of which 

were months in the making, created conditions ripe for disaster. We 

consider conduct aboard ALNIC and MCCAIN in turn.

a. ALNIC’s Staffing and Steering Problems.

ALNIC was by far the larger of the two vessels involved. She is 

about 600 feet long. Loaded with fuel oil at the time of the collision, 

ALNIC weighed about 39,000 metric tons. When ALNIC was at full 

speed ahead, coming to a full stop required 7 minutes and 1.35 

nautical miles.

Some of ALNIC’s problems pertained to staffing. ALNIC’s

manager, Stealth Maritime Corporation S.A. (“Stealth”), placed the 

vessel under internal regulations called the Safety Management 

System, or SMS. The SMS required ships in the Singapore Strait to be 

at their greatest possible readiness, what Stealth called “Bridge 

Manning Level III.” Bridge Manning Level III called for five mariners 

staffing ALNIC’s bridge (her command center), including a fully 

dedicated anti-collision officer and a fully dedicated lookout.

ALNIC’s crew did not heed these requirements. On the morning

of the collision on August 21, ALNIC was designated only at Bridge 

2 We draw our discussion from the trial record and the district court’s posttrial opinion. Except as noted otherwise, these facts are undisputed on appeal.
8 No. 22-1765-cv

Manning Level II. But in fact, with one crew member off duty and 

another working in the walled-off chart room when the collision 

occurred, the vessel was effectively at Bridge Manning Level I. That 

meant there were only three people staffing the bridge, including 

ALNIC’s captain, Ritchie Nolasco. There was no anti-collision officer

present and the lookout was serving simultaneously as the helmsman.

Other problems related to steering or, more precisely, the lack 

of steering. The SMS required ALNIC to be under manual steering 

while in the Singapore Strait. Instead, on August 21 and until after 

the collision, the ship remained on autopilot. This issue was 

intertwined with the staffing shortfall: had ALNIC been properly off 

autopilot she would have been steered by the helmsman. But that

same seaman was also acting that morning as a lookout. 

ALNIC’s issues were no secret and no surprise. During a routine 

audit in May 2017, Stealth’s Marine Superintendent witnessed ALNIC

improperly transit the Singapore Strait at Bridge Manning Level I. 

The Superintendent testified that he instructed ALNIC’s crew on 

proper conduct in the Strait, although Captain Nolasco and another 

ALNIC officer denied they received such instruction.

The Superintendent also stated more generally that, of the 

seventy vessels he had audited for Stealth, ALNIC’s performance was 

among the two worst. The Superintendent conveyed his concerns to 

Stealth, but the company took no action. 

b. MCCAIN’s Staffing and Steering Problems.

MCCAIN is smaller and more agile than ALNIC. She is 505 feet 

long and weighs about 9,000 metric tons, as compared to ALNIC’s 600 

feet and 39,000 metric tons. MCCAIN can stop “very quickly” 

compared to commercial vessels, but “not instantaneous[ly].” Matter 
9 No. 22-1765-cv

of Energetic Tank, Inc., 607 F. Supp. 3d 328, 336, 363 (S.D.N.Y. 2022)

(“Energetic Tank”).

MCCAIN’s problems related primarily to the crew’s use of a 

new steering system. Roughly one year before the collision, the Navy 

had installed on MCCAIN an Integrated Bridge and Navigation 

System, or “IBNS.” The IBNS “look[ed] nothing like a traditional 

steering console.” Id. at 336 (internal quotation marks omitted). 

Rather, the IBNS encompassed several steering stations on the bridge 

and elsewhere, each of which included both a touchscreen and 

physical buttons. Two manual steering wheels remained: one 

between the helm and lee helm stations on the bridge and the other at 

the aft steering station near the vessel’s stern.

The IBNS allowed those in charge of the controls to transfer 

steering from one station to another. Ordinarily, both the station 

controlling steering and the station receiving steering would need to 

consent to this transfer. But when the IBNS was in “backup manual” 

mode, with some of its computer features disabled, one station could 

unilaterally seize steering control from another. One physical 

component of each IBNS station was the “Emergency Override to 

Manual” button, commonly known as the “Big Red Button.” Pressing 

the Big Red Button at one station would unilaterally take control of 

steering away from any other station on MCCAIN.

MCCAIN’s crew—including the ship’s captain, Commander 

Alfredo Sanchez—lacked “basic . . . knowledge” of the IBNS. Id. at 

340 (internal quotation marks omitted). This ignorance extended to 

the Big Red Button. Commander Sanchez and others mistakenly 

believed that pressing the Button would send steering control to the 
10 No. 22-1765-cv

aft steering station. Moreover, the crew did not understand that the 

Big Red Button operated unilaterally.

MCCAIN’s IBNS was also unreliable in ways compounded by 

the crew’s unfamiliarity with the system. The computer-driven IBNS

had crashed several times, leading Commander Sanchez to complain 

to offboard Navy technicians. In fact, one technician was due in 

Singapore to repair the IBNS upon MCCAIN’s arrival. In the 

meantime, Commander Sanchez’s preferred “workaround” for IBNS 

glitches was to switch the destroyer to backup manual mode—“a 

system setting which affected steering control in ways that neither he 

nor his crew understood.” Id. MCCAIN was in backup manual mode 

when the collision occurred.

MCCAIN, like ALNIC, also suffered staffing shortfalls. 

MCCAIN’s officers had recommended an extensive “Sea and Anchor 

Detail” while navigating the Singapore Strait. Instead, Commander 

Sanchez opted for a more limited “Modified Navigation Detail.” That 

still meant MCCAIN had fifteen crewmembers on her bridge at the 

time of the collision, but the sailors controlling thrust and steering 

were both fewer in number and less experienced than the Sea and 

Anchor Detail would have required.

II. MCCAIN’s Loss of Steering Control and ALNIC’s Initial 

Response.

In the early hours of August 21, 2017, ALNIC and MCCAIN were 

heading west in the busy Singapore Strait, both bound for Singapore. 

Under the Strait’s Traffic Separation Scheme—essentially a maritime 

highway—each ship was in the same “lane.” So, too, were several 

other vessels. ALNIC was ahead and to port (i.e., left) of MCCAIN.

Although the seas were calm and the weather clear, the pre-dawn sky 
11 No. 22-1765-cv

was dark and moonless. MCCAIN was moving quickly by Strait 

standards, 20 knots, and was in the process of overtaking ALNIC. 

Trouble began around 5:20:30 AM local time, which was

3 minutes, 28 seconds before the collision (“bc”). That was when 

Commander Sanchez ordered that MCCAIN’s thrust control be 

transferred from one IBNS station (the helm) to another adjacent 

station (the lee helm). Unbeknownst to all involved, however, the 

thrusts were “un-ganged,” which meant the vessel’s two propellers 

operated independently instead of in unison. Consequently, when

MCCAIN’s crew carried out Commander Sanchez’s order, only control 

of the port thrust shifted to the lee helm, while control of the starboard 

(i.e., right) thrust remained with the helm.

Soon after, at 5:20:39 (3:19 bc), MCCAIN’s helmsman reported 

that he had lost the ability to steer using the manual wheel between 

the helm and the lee helm. A Navy investigation found that the crew 

had inadvertently transferred steering control from the helm to the 

lee helm when transferring the thrust to the lee helm. See App’x at 

4999–5000. Before steering control was transferred, the helmsman 

had been steering slightly to starboard to maintain a steady course. 

But when steering control was transferred, the rudders reset to a 

neutral position. MCCAIN then began turning to port—toward 

ALNIC. Within one minute, around 5:21:00 (2:58 bc), MCCAIN’s crew 

announced loss of steering to the destroyer’s bridge.

Crewmembers at the IBNS stations both on the bridge and at 

the aft steering position responded by pressing the Big Red Button, 

mistakenly thinking it would send control to aft steering. Instead,

because pushing the button acquired steering, “control of steering 

ping-ponged around the ship, with none of the crew understanding 
12 No. 22-1765-cv

where it was at any given time, or how to get it back.” Energetic Tank, 

607 F. Supp. 3d at 348.

Twenty-three seconds later, at 5:21:23 (2:35 bc), an 

announcement sounded on MCCAIN’s internal and external speakers: 

“Loss of steering in the pilot house, loss of steering in the pilot house. 

Man aft steering.” Id. Microphones on ALNIC’s bridge wings picked 

up this announcement across the water.

At 5:21:25 (2:33 bc), at Commander Sanchez’s order, MCCAIN’s 

crew activated “red-over-red” lights on the ship’s masthead. This 

configuration indicates to other vessels that a vessel is “not under 

command” and, hence, at risk of collision. Energetic denies that

MCCAIN signaled red-over-red properly in all respects. We further 

address this issue below.

By 5:21:52 (2:06 bc), MCCAIN’s veering to port was visible on 

ALNIC’s X-band radar. Seconds later, Captain Nolasco prompted

ALNIC’s S-band radar to calculate whether ALNIC and MCCAIN were 

on a collision course. The calculation would take fifty seconds. 

During this time, ALNIC took no other action to avoid colliding with 

MCCAIN. 

At 5:22:06 (1:52 bc), Commander Sanchez ordered MCCAIN’s 

crew to reduce the vessel’s speed from 20 knots to 10. MCCAIN’s lee 

helmsman complied, not knowing that because the thrust remained 
13 No. 22-1765-cv

un-ganged, he was reducing only the port thrust, causing MCCAIN to 

veer even more to port, toward ALNIC’s path.

The district court found that at 5:22:31 (1:27 bc), “reasonable 

mariners could [still] have disagreed [as to] whether MCCAIN would 

collide with ALNIC,” given MCCAIN’s apparent trajectory. Id. at 356.

III. ALNIC’s Collision Alarm.

At 5:22:43 (1:15 bc), ALNIC’s S-band radar completed its 

collision calculation and triggered a collision alarm on the bridge. 

Energetic argues that this alarm signaled only that MCCAIN was on 

course to be 0.27 nautical miles away from ALNIC. The district court, 

however, found that the alarm signified “an imminent actual 

collision, not just a close call.” Id. at 351 n.12.

Two seconds after ALNIC’s alarm began to blare, at 5:22:45 (1:13 

bc), Commander Sanchez ordered MCCAIN’s crew to reduce the 

destroyer’s speed once more—now from 10 knots to 5. Still,

unbeknownst to all, the thrust remained un-ganged. Trying to carry 

out Commander Sanchez’s order, the lee helmsman again reduced 

only the port thrust, turning the vessel even more sharply.

At 5:22:58 (1:00 bc), ALNIC’s crew silenced the collision alarm. 

ALNIC’s autopilot course and speed remained unchanged.

IV. The Collision.

ALNIC’s crew continued to passively observe MCCAIN as the 

destroyer drew near. At 5:23:02 (0:56 bc), someone on ALNIC’s bridge 

observed that MCCAIN appeared to be trying to pass between ALNIC

and another vessel. At first, the observer “guess[ed]” the maneuver 
14 No. 22-1765-cv

would work.3 Id. at 352. Then, at 5:23:17 (0:41 bc), the same 

crewmember determined that MCCAIN was doing a “wrong 

maneuver.” Id. The district court found that by 5:23:20 (0:38 bc), 

MCCAIN’s veering was “glaringly apparent” on ALNIC’s X-band 

radar. Id. Still, ALNIC kept her course and speed. Neither vessel 

signaled danger by sounding its horn or attempted to contact the 

other by radio.

At 5:23:27 (0:31 bc), MCCAIN’s crew at aft steering—the IBNS 

station near the destroyer’s stern—secured control of MCCAIN’s 

steering. That station, however, had retained an earlier “hard left” 

order that took effect when aft steering gained rudder control. Thus, 

for several seconds, MCCAIN turned still more to port, placing her 

almost directly in front of ALNIC.

At 5:23:44 (0:14 bc), MCCAIN finally began correcting course by 

turning to starboard. Commander Sanchez testified that he 

recognized that a collision was imminent. Yet he hoped that turning 

would at least avoid a “T-bone” impact and reduce the damage to 

MCCAIN.

That same moment, Captain Nolasco reduced ALNIC’s engine 

from full ahead to half ahead—the vessel’s first and only pre-collision 

adjustment. Although this slowed the engine from 92 RPM to 73 

RPM, it did not appreciably reduce ALNIC’s speed before collision.

At 5:23:58, ALNIC and MCCAIN collided. ALNIC’s bow struck 

MCCAIN’s port side at an angle of around 48.5 degrees, piercing the 

3 Audio on ALNIC’s bridge was recorded by the tanker’s black box. The 

parties stipulated to the accuracy of the transcript cited in litigation and of 

any translations into English.
15 No. 22-1765-cv

destroyer’s hull and entering several crew compartments. For 66 

seconds, the vessels remained entangled.

ALNIC’s engine continued running at 73 RPM. Only 42 seconds 

after impact did Captain Nolasco order “all stop.” And for another 

20 seconds after that, ALNIC remained on autopilot.

ALNIC’s continued propulsion and automatic navigation 

exacerbated the collision. While the vessels were entangled, ALNIC’s 

computerized navigation system detected that ALNIC had veered to 

port and tried to redirect her. However, the combination of the 

vessels’ momentum and ALNIC’s automated maneuver caused 

ALNIC’s bow to sweep over 45 degrees to starboard, tearing through 

more of MCCAIN’s hull.

The damage was terrible. MCCAIN’s Berthing 5, which was 

located below the waterline, flooded completely, drowning ten 

sailors. Three of MCCAIN’s decks were struck. Still more 

destruction—and potential death—was averted only through the 

swift and decisive action of MCCAIN’s crew.

V. False Statements by ALNIC’s Crewmembers.

Several post-collision revelations warrant special mention here. 

Discovery in this litigation revealed—as Energetic 

acknowledges—that ALNIC’s crewmembers falsified entries in the 
16 No. 22-1765-cv

vessel’s logs, obscuring what happened just before the collision. 

These lies included:

1. “[T]hat there was a fifth member of ALNIC’s crew serving 

as the lookout when, in fact, there was not”;

2. “[T]hat ALNIC was at Bridge Manning Level II before the 

collision, when it was really at Bridge Manning Level I 

because of the missing crewmembers”;

3. “[T]hat the crew had stopped the engine . . . at 05:22,” before 

the collision at 05:23:58, “when in fact it was only put to half 

ahead at 05:23:44 and was not stopped until about 05:24:30”;

and

4. “[T]hat steering was switched from autopilot to manual 

steering several hours before the collision, at 03:00, when it 

actually remained on autopilot until after the collision.”

Id. at 357.

The district court also found that two of ALNIC’s crewmembers 

made other false statements not in the logs. First, one ALNIC seaman

told investigators that he saw MCCAIN display regular lights, rather 

than red-over-red lights. That same seaman had falsified a log entry

stating he was on ALNIC’S bridge on the morning of the collision. This 

led to a further lie that he had been well-positioned to see MCCAIN’s

lights. Second, Captain Nolasco testified in his deposition for this case 

that he had not seen MCCAIN display her red-over-red signal, but 

only red sidelights. Yet Captain Nolasco had earlier confirmed to 
17 No. 22-1765-cv

Singapore authorities that he had seen and understood MCCAIN’s redover-red signal. He failed to explain this discrepancy.

Given these inconsistencies, the district court found that 

testimony by ALNIC’s crewmembers that they never observed redover-red lights on MCCAIN was not credible.

PROCEDURAL HISTORY

On February 15, 2018, Energetic initiated this action under the 

Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501–02, 30521–30.

4

 

That statute permits the owner of a vessel to limit its liability for any

“injury by collision,” including personal injury, to “the value of [that]

vessel and pending freight.” Id. at § 30523(a)-(b); see The 84-H, 296 F. 

427, 430 (2d Cir. 1923). “The animating premise of the [Act] is that the 

owner of a vessel is generally an absentee who entrusts the vessel to 

the command of a captain whom the owner has limited ability to 

supervise or control once the vessel is on the sea.” Bensch v. Est. of 

Umar, 2 F.4th 70, 73 (2d Cir. 2021). “The Act thus protects the owner 

of a vessel from unlimited vicarious liability for damages caused by 

the negligence of his captain or crew.” Tandon v. Captain’s Cove Marina 

of Bridgeport, Inc., 752 F.3d 239, 244 (2d Cir. 2014). 

To benefit from this limitation, the collision must have occurred 

“without the privity or knowledge of the owner.” 46 U.S.C. 

§ 30523(b). “The phrase ‘privity or knowledge’ is a ’term of art 

meaning complicity in the fault that caused the accident.’” In re 

Complaint of Messina, 574 F.3d 119, 126 (2d Cir. 2009) (quoting Blackler 

v. F. Jacobus Transp. Co., 243 F.2d 733, 735 (2d Cir. 1957) (per curiam)). 

Thus, if Energetic could establish that it was not complicit in ALNIC’s 

4 Sections 30521–30 correspond to what the district court, relying upon 

an earlier version of the Act, cited as §§ 30503–12. 
18 No. 22-1765-cv

collision with MCCAIN, Energetic’s liability would be limited to the 

value of ALNIC and her freight.

Since the goal of the limitation action is to cap the owner’s 

liability, the Act also channels claims. A liability cap is valuable only 

when potential liabilities would otherwise exceed the cap. So when 

claims exceed the value of the ship and her freight, the Act provides 

that “all claimants shall be paid in proportion to their respective 

losses.” 46 U.S.C. § 30525(1). To calculate the proportion to which 

each claimant is entitled and to ensure an equitable distribution, all 

claims against a shipowner arising from the collision must be brought 

within the limitation action; any preexisting actions are enjoined. See

id. at § 30529(c); Rule F(3) of the Supplemental Rules for Admiralty or 

Maritime Claims of the Federal Rules of Civil Procedure. Following 

Energetic’s petition for limitation or exoneration, forty-two parties 

filed claims against Energetic. Of these, forty-one were Navy sailors 

or their representatives, who filed claims for death or injury; the other 

was the United States, which filed a claim for MCCAIN’s damages. 

Energetic also counterclaimed for contribution or indemnity from the 

United States, invoking the Suits in Admiralty Act, 46 U.S.C. § 30903, 

and the Public Vessels Act, 46 U.S.C. § 31102.

The district court bifurcated proceedings. In Phase 1, the court 

would determine apportionment of fault between ALNIC and 

MCCAIN. In Phase 2, the court would adjudicate the wrongful death 

and personal injury claims.

On January 10, 2020, the district court granted Energetic’s 

motion to apply Singapore law both to determine liability and to 

calculate damages. Three groups of Sailor-Claimants—the 

“Sanfilippo Claimants,” the “Hofmann & Schweitzer Claimants,” and 
19 No. 22-1765-cv

the “Tabak Claimants”—sought reconsideration of this decision. The 

district court denied reconsideration.

Before trial, the United States and Energetic stipulated that, 

excluding interest, MCCAIN’s damages were $185,000,000 and 

ALNIC’s were $442,445.

In November 2021, the district court conducted a five-day, 

Phase 1 bench trial to apportion liability. On June 15, 2022, the district 

court issued a post-trial opinion and order allocating 80% of fault for 

the collision to MCCAIN and 20% to ALNIC. The district court, finding 

privity or knowledge on the part of Energetic, declined to limit 

Energetic’s liability. This resulted in Energetic’s responsibility for 

around $37 million in vessel damages, plus interest—20% of 

MCCAIN’s damages less 80% of ALNIC’s damages.

In brief, the district court concluded that ALNIC’s negligence 

proximately caused the collision and resulting damage in three

respects. First, her bridge was “understaff[ed]” “in the heavily 

trafficked Singapore Strait.” Energetic Tank, 607 F. Supp. 3d at 363. 

Second, ALNIC failed to turn or significantly slow down starting at 

5:23:17 (0:41 bc), at which time “it should have been clear to everyone 

that MCCAIN could no longer avoid the collision by her actions 

alone.” Id. at 367. And third, ALNIC “left her engines running for 42 

seconds after the collision and left her autopilot on for over a minute,”

which exacerbated the damage to MCCAIN. Id. at 368. The district 

court also determined that ALNIC’s fault was compounded by her 

crew’s false statements after the collision. See id. at 368–69. 

Energetic and the United States both filed interlocutory 

appeals.5 On October 5, 2022, we remanded the case at the district 

5 The United States withdrew its cross-appeal with prejudice before 

briefing was complete. 
20 No. 22-1765-cv

court’s request so that, among other things, the district court could

certify its post-trial order as a final judgment. The next day, the 

district court ordered that its June 15 order “was intended to be a final 

judgment regarding the United States” under Fed. R. Civ. P. 54(b), 

and that there was “no just reason for delay” in issuing that judgment. 

Special App’x at 73. 

On October 12, 2022, the district court issued an opinion and 

order addressing the United States’s defense of sovereign immunity. 

The district court concluded that, although the United States had 

waived its sovereign immunity against Energetic’s counterclaim for 

vessel damages, it had not done so against Energetic’s counterclaims for 

contribution for or indemnification against potential personal damages. 

The district court therefore dismissed Energetic’s contribution and 

indemnification claims. In the same opinion, the district court

declined to stay the case pending appeal.

On October 13, 2022, we reinstated the appeal without a new 

notice of appeal under United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 

1994).

On November 4, 2022, the Hofmann & Schweitzer and the 

Tabak Claimants (together, the “Cross-Appellants”) filed cross-
21 No. 22-1765-cv

appeals to contest the district court’s decision to calculate damages

using Singapore law.

6

DISCUSSION

I. Jurisdiction.

We begin, as we must, by “assur[ing] ourselves” of our 

appellate jurisdiction. Maye v. City of New Haven, 89 F.4th 403, 406 (2d 

Cir. 2023) (per curiam) (internal quotation marks omitted). We 

conclude that we have jurisdiction to consider Energetic’s appeals of 

the district court’s Phase 1 order and of the district court’s order 

dismissing Energetic’s contribution and indemnification claims. By 

contrast, we lack jurisdiction over the cross-appeals challenging the 

district court’s choice-of-law decision. We therefore dismiss the 

cross-appeals.

A. General Principles of Appellate Jurisdiction.

“The jurisdiction of the federal courts of appeals to entertain 

appeals from decisions of the district court[s] is circumscribed by 

statute.” Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008). In this case, 

we look primarily to two provisions of the federal Judicial Code,

§ 1291 and § 1292, and to the judicial rules and doctrines 

implementing those sections. 

Section 1291 establishes the baseline rule. That provision 

permits us to hear appeals from “final decisions of the district courts.” 

28 U.S.C. § 1291.7 Final decisions are “embodied” in final judgments. 

6 The Sanfilippo Claimants also filed a cross-appeal, which they, too,

withdrew with prejudice while this appeal was pending.

7 Section 1291 provides, in relevant part: “The courts of appeals . . . shall 

have jurisdiction of appeals from all final decisions of the district courts of 
22 No. 22-1765-cv

Transp. Workers Union of Am., Loc. 100 v. N.Y.C. Transit Auth., 505 F.3d 

226, 230 (2d Cir. 2007). Ordinarily, such judgments “conclusively 

determine[] all pending claims of all the parties to the litigation, 

leaving nothing for the court to do but execute its decision.” Petrello, 

533 F.3d at 113. Both the Federal Rules of Civil Procedure and our 

precedent, however, embrace a “practical construction” of § 1291, 

permitting appeals from a limited class of other orders we consider 

“final,” Will v. Hallock, 546 U.S. 345, 349 (2006), even though they do 

not “resolve all claims of all parties,” Scottsdale Ins. Co. v. McGrath, 88 

F.4th 369, 376 (2d Cir. 2023). 

Federal Rule of Civil Procedure 54(b) authorizes appeals from 

certain “partial final judgment[s]” addressing “fewer than all parties” 

or resolving fewer than “all claims.”

8

 Scottsdale, 88 F.4th at 376. Such 

judgments must be expressly designated for appeal by the district 

court, as we discuss below. This procedure was “designed to permit 

acceleration of appeals in multiple-claim cases,” Gelboim v. Bank of Am. 

Corp., 574 U.S. 405, 416 (2015), while leaving “unimpaired the 

the United States, the United States District Court for the District of the 

Canal Zone, the District Court of Guam, and the District Court of the Virgin 

Islands, except where a direct review may be had in the Supreme Court.” 

28 U.S.C. § 1291.

8 Rule 54(b) provides: “When an action presents more than one claim for 

relief--whether as a claim, counterclaim, crossclaim, or third-party claim--

or when multiple parties are involved, the court may direct entry of a final 

judgment as to one or more, but fewer than all, claims or parties only if the 

court expressly determines that there is no just reason for delay. Otherwise, 

any order or other decision, however designated, that adjudicates fewer 

than all the claims or the rights and liabilities of fewer than all the parties 

does not end the action as to any of the claims or parties and may be revised 

at any time before the entry of a judgment adjudicating all the claims and 

all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
23 No. 22-1765-cv

statutory concept of finality prescribed by [§] 1291,” Sears, Roebuck & 

Co. v. Mackey, 351 U.S. 427, 434 (1956). 

Another rule, the “collateral order doctrine,” permits appeals 

from a “small class” of rulings that do not resolve the merits of any 

claim. Will, 546 U.S. at 349 (internal quotation marks omitted). Like 

Rule 54(b), the collateral-order doctrine is not “an exception to” 

§ 1291’s “final decision rule,” but an application of it. Id. (internal 

quotation marks omitted). This doctrine has a “modest scope”: it 

permits appeals only of those rare decisions “too important to be 

denied review and too independent of the cause itself to require that 

appellate consideration be deferred until the whole case is 

adjudicated.” Id. (internal quotation marks and citation omitted).

Finally for our purposes, 28 U.S.C. § 1292 gives us jurisdiction 

over appeals from some interlocutory—that is, non-final—orders, 

including those pertaining to injunctions, the appointment of 

receivers, and other limited matters. Relevant here is 28 U.S.C. 

§ 1292(a)(3), which establishes our jurisdiction over some 

“[i]nterlocutory decrees . . . determining the rights and liabilities of 

the parties to admiralty cases.”9 That such appeals are available in 

admiralty, but not in other areas, reflects “the once common 

admiralty practice of referring the determination of damages to a 

master or commissioner after resolving the issue of liability.” Chem 

9 Section 1292(a)(3) provides, in relevant part: “[T]he courts of appeals 

shall have jurisdiction of appeals from . . . (3) Interlocutory decrees of such 

district courts or the judges thereof determining the rights and liabilities of 

the parties to admiralty cases in which appeals from final decrees are 

allowed.” 28 U.S.C. § 1292(a)(3).
24 No. 22-1765-cv

One, Ltd. v. M/V RICKMERS GENOA, 660 F.3d 626, 638 (2d Cir. 2011) 

(internal quotation marks and citation omitted).

For us to decide the various appeals now before us, we must 

have jurisdiction either under § 1291 (as implemented by Rule 54(b) 

or the collateral-order doctrine) or under § 1292(a)(3). 

B. The District Court’s Phase 1 Order Was Appealable 

under 28 U.S.C. § 1291 and Rule 54(b) as a Partial Final 

Judgment Pertaining to Damage to the Vessels and 

Apportionment of Liability.

We first consider whether the district court’s Phase 1 order was 

an appealable “final decision[]” under 28 U.S.C. § 1291. The Phase 1 

order did not “resolve all claims of all parties.” Scottsdale, 88 F.4th at 

376. Rather, it left for a Phase 2 trial the Sailor-Claimants’ claims for 

personal damages. Nonetheless, the parties invoke our jurisdiction 

over appeals from partial final judgments under Rule 54(b).10

Rule 54(b) does not automatically permit appeal of every 

partial final judgment. Rather, the district court must exercise its 

discretion to invoke the Rule and certify the appeal. See Harriscom 

Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991). 

Certification is appropriate only to serve the “interests of sound 

judicial administration” or to avoid “some danger of hardship or 

injustice through delay which would be alleviated by immediate 

appeal.” Id. (internal quotation marks and citation omitted and 

alteration incorporated). Consistent with this requirement, the 

district court must (1) “expressly determine[] that there is no just 

10 The district court observed in a letter to this court that we would likely 

have jurisdiction over this appeal under 28 U.S.C. § 1292(a)(3), even absent 

a Rule 54(b) certification. Because we conclude that our jurisdiction is 

secure under § 1291, we need not address that theory.
25 No. 22-1765-cv

reason for delay,” Fed. R. Civ. P. 54(b), and (2) provide “a brief, 

reasoned explanation” for that determination, Scottsdale, 88 F.4th at 

378 (internal quotation marks omitted). This explanation must 

ordinarily offer “well-reasoned conclusions” rather than “mere 

boiler-plate approval.” Novick v. AXA Network, LLC, 642 F.3d 304, 310

(2d Cir. 2011) (internal quotation marks and citation omitted). 

However, we may “excuse[] a failure to state reasons ‘[w]here the 

reasons . . . are obvious . . . and a remand to the district court would 

result only in unnecessary delay in the appeal process.’” Brown v. Eli 

Lilly & Co., 654 F.3d 347, 355 (2d Cir. 2011) (quoting Fletcher v. Marino, 

882 F.2d 605, 609 (2d Cir. 1989)).

Rule 54(b)’s application is limited in two-phase proceedings 

such as this one. An order “limited to the issue of liability, which 

reserves the issue of damages and other relief is not final within the 

meaning of 28 U.S.C. § 1291.” Linde v. Arab Bank, PLC, 882 F.3d 314, 

323 (2d Cir. 2018) (internal quotation marks and citation omitted). 

Such an order is therefore “not certifiable pursuant to Rule 54(b).” Id. 

(internal quotation marks and citation omitted). That said, Rule 54(b) 

does authorize certification where the district court has both 

determined liability and “fixed the damages.” Id. (internal quotation 

marks and citation omitted).

The district court did not abuse its discretion by certifying its

June 15, 2022 Phase 1 order as a partial final judgment. The Phase 1 

opinion and order resolved the United States’s liability in its claim for 

damages against Energetic. Moreover, here, as in Linde, the damages 

were “fixed”: the parties had agreed upon the monetary damages to 

MCCAIN and to ALNIC. Finally, the district court concluded that “the 

Phase I Opinion presents one judgment, neatly bundled” for appellate 

review; that certification would avoid “unnecessary delay in the 

appeal process;” and that there was little risk of “piecemeal appeals.” 

Special App’x 74. The district court provided little justification for 
26 No. 22-1765-cv

these conclusions. Nonetheless, and especially in view of our 

previous remand for the purpose of certification, the district court’s 

explanation was adequate. See Brown, 654 F.3d at 355. We therefore 

have jurisdiction under § 1291 to review the Phase 1 opinion.

C. The District Court’s Order Dismissing Energetic’s 

Contribution and Indemnity Claims Was Appealable as 

an Interlocutory Admiralty Order under 28 U.S.C. 

§ 1292(a)(3).

The district court’s October 12, 2022 order concerning

sovereign immunity implicates a different provision: § 1292(a)(3). 

Contrary to Energetic’s suggestion, § 1291 is inapplicable to the 

sovereign-immunity order. In general, orders that “allow the 

litigation to continue are not final for purposes of § 1291 and therefore 

are not immediately appealable.” Ashmore v. CGI Grp., Inc., 860 F.3d 

80, 84 (2d Cir. 2017) (per curiam) (internal quotation marks and 

citation omitted and alteration incorporated). That includes orders 

that dismiss some but not all claims. Here, the district court dismissed 

Energetic’s contribution and indemnity claims against the United 

States as barred by sovereign immunity but left other issues for later 

resolution. And unlike its earlier Phase 1 order, the district court did 

not certify its dismissal order under Rule 54(b). No other exception 

relevant to § 1291 applies. Thus, the dismissal order was not a “final” 

order under § 1291 and is not appealable under that statute.

Even so, we may review certain interlocutory orders in 

admiralty cases under a different provision. Federal courts of appeals 

generally “have jurisdiction of appeals from: . . . (3) Interlocutory 

decrees of such district courts or the judges thereof determining the 

rights and liabilities of the parties to admiralty cases in which appeals 

from final decrees are allowed.” 28 U.S.C. § 1292(a)(3). This rule 
27 No. 22-1765-cv

broadens our interlocutory appellate jurisdiction beyond its ordinary

bounds. See generally 16 Charles Alan Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice & Procedure § 3927 (3d ed. 2023).

Section 1292(a)(3) establishes our jurisdiction here. Because the 

order dismissing Energetic’s contribution and indemnification claims

was not final, it was “[i]nterlocutory.” 28 U.S.C. § 1292(a)(3); see

Wingerter v. Chester Quarry Co., 185 F.3d 657, 668 (7th Cir. 1998). Nor 

is there any question that this “case . . . includes an admiralty or 

maritime claim,” Fed. R. Civ. P. 9(h)(2), such that it is an “admiralty 

case[],” 28 U.S.C. § 1292(a)(3); see Energetic Tank, 607 F. Supp. 3d at 335 

n.1. That leaves the “crucial inquiry” of “whether the district court’s 

judgment . . . determined the rights and liabilities of the parties”—

that is, whether it “decid[ed] the merits” of the parties’ 

“controversies.” Chem One, 660 F.3d at 638 (internal quotation marks 

and citation omitted and alterations incorporated). It did. We have 

previously held that an order dismissing a cause of action in an 

admiralty case on sovereign-immunity grounds is appealable under 

§ 1292(a)(3). See Isbrandtsen Tankers, Inc. v. Pres. of India, 446 F.2d 1198, 

1199 n.1 (2d Cir. 1971). This case is similar. We therefore have 

jurisdiction to review the district court’s October 12, 2022 order.

D. The District Court’s Order on Choice of Law Was Not 

Appealable as a Collateral Order.

The same cannot be said of the district court’s January 10, 2020 

order that Singapore law would apply to the calculation of damages. 

Cross-Appellants offer two theories supporting our jurisdiction. 

Neither succeeds.

First, Cross-Appellants argue that the district court’s Rule 54(b) 

certification rendered appealable its earlier choice-of-law ruling. This 

argument implicitly invokes our usual rule that “prior interlocutory 
28 No. 22-1765-cv

orders merge with the final judgment in a case, and the interlocutory 

orders (to the extent that they affect the final judgment) may be 

reviewed on appeal from the final order.” Selletti v. Carey, 173 F.3d 

104, 109 n.5 (2d Cir. 1999) (internal quotation marks omitted).

The merger rule does not support Cross-Appellants’ position. 

In considering an appeal of a partial final judgment, we must construe 

strictly the requirement that an interlocutory order “affect the final 

judgment,” lest we nullify Rule 54(b)’s limitations. Id.; see also Black 

Ass'n of New Orleans Fire Fighters (BANOFF) v. City of New Orleans, 911 

F.2d 1063, 1065–66 (5th Cir. 1990). In this case, the district court stated 

that its Phase 1 order “was intended to be a final judgment regarding 

the United States” and its “liability and damages for the collision.”

Special App’x at 73. Thus, only earlier orders that affect the United 

States’s liability merge on appeal into the Phase 1 order. The district 

court’s choice of law for calculating Sailor-Claimants’ personal 

damages did no such thing. Accordingly, Rule 54(b) does not give us 

jurisdiction over the cross-appeals.

Second, the Hofmann & Schweitzer Claimants suggest that the 

district court’s choice-of-law ruling is an appealable collateral order. 

Non-final orders are reviewable under the “collateral order doctrine” 

only when they “(1) are ‘conclusive’; (2) ‘resolve important questions 

separate from the merits’; and (3) ‘are effectively unreviewable on 

appeal from the final judgment in the underlying action.’” Belya v. 

Kapral, 45 F.4th 621, 629 (2d Cir. 2022) (quoting Swint v. Chambers Cnty. 

Comm'n, 514 U.S. 35, 42 (1995)).

The collateral-order doctrine does not apply here. We have 

warned that this exceptional doctrine should “‘never be allowed to 

swallow the general rule that a party is entitled to a single appeal’ 

after ‘final judgment has been entered.’” Id. (emphasis added) 

(quoting Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 
29 No. 22-1765-cv

(1994)). Here, we see no reason why the district court’s choice-of-law 

order would be “effectively unreviewable on appeal from the final 

judgment.” Id. (internal quotation marks omitted). Rather, we 

believe permitting Cross-Appellants’ “piecemeal, prejudgment 

appeals” would “undermine[] ‘efficient judicial administration.’” 

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quoting 

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). Thus, 

the choice-of-law ruling on damages, as distinct from the 

apportionment of liability, is not yet appealable. 

Cross-Appellants have identified no basis for our jurisdiction 

over their appeals.

11

 We therefore must dismiss the cross-appeals.

II. Applicable Substantive Law.

The district court applied Singapore law in determining the 

United States’ and Energetic’s liability for the collision. No party 

contests that decision. Although we retain discretion to reach this

“purely legal issue,” we decline to do so here.12 Booking v. Gen. Star 

11 The Hofmann & Schweitzer Claimants also invoke in passing 

28 U.S.C. § 1292(a)(3) as an alternative basis for our jurisdiction. That 

“perfunctor[y]” reference failed to preserve any argument as to that 

provision’s application to the cross-appeals. Meyer v. Seidel, 89 F.4th 117, 

129 (2d Cir. 2023). In any event, the district court’s choice-of-law ruling did 

not “determin[e] the rights and liabilities of the parties,” as § 1292(a)(3) 

requires.

12 Unlike the district court’s choice of law for calculating damages, its 

choice of law for determining liability “affect[ed]” the appealable partial 

final judgment. Selletti, 173 F.3d at 109 n.5. To that extent, we have 

jurisdiction to review the January 10, 2020 order. Because we decline to 

undertake that review, we need not—and do not—decide whether we have 

pendent jurisdiction over the cross-appeal, as the Tabak Claimants argue in 

their reply brief. Tabak Reply Br. at 9–11. 
30 No. 22-1765-cv

Mgmt. Co., 254 F.3d 414, 419 (2d Cir. 2001). Instead, we join the district 

court in applying Singapore law.

In this case, the standards for determining liability for the 

collision are clear. That is because “[t]he elements of negligence 

under Singapore law are substantially the same as those under United 

States admiralty law: ‘Typically, claimants have to establish breach of 

duty (that a vessel owes a duty of care to other vessels is wellestablished) that caused or contributed to the collision and damage.’” 

Energetic Tank, 607 F. Supp. 3d at 358–59 (quoting The Dream 

Star [2018] 4 SLR 473 at [47]).13 The relevant duty is “the exercise of

‘good seamanship’”—that is, “the exercise of reasonable skill or care 

expected of a competent/prudent seaman to prevent the vessel from 

doing injury.” Id. (citation omitted). 

In evaluating negligence under this standard, we follow 

Singapore courts in treating decisions of “common law courts around 

the world”—and especially of English courts—as persuasive 

authority. App’x at 1366; see, e.g., The Dream Star at [89]–[93]; The

Mount Apo and Hanjin Ras Laffan [2019] 4 SLR 909 at [95]; see also App’x 

at 2781. As expert testimony indicated, this reflects that “Singapore’s 

legal system is built on a two hundred years of the English common 

law tradition” and “Singapore law on maritime collisions [remains] 

closely similar to English law” in relevant respects. App’x at 1359; see 

id. at 2781.

Consistent with Singapore law, we also look to the universally 

accepted International Regulations for Preventing Collisions at Sea, 

13 When citing foreign cases, we follow the conventions of the Singapore 

Academy of Law’s Style Guide for the Singapore Law Reports. “SLR” 

refers to the Singapore Law Reports. Pinpoint citations in brackets refer to 

paragraph numbers. Each of the Singapore cases we cite was decided by 

the High Court of the Republic of Singapore. 
31 No. 22-1765-cv

or “COLREGs.” The COLREGs “provide a ‘universal system of sea 

traffic rules’ applicable to vessels in international waters.” Crowley 

Marine Servs., Inc. v. Maritrans, Inc., 530 F.3d 1169, 1172 (9th Cir. 2008) 

(quoting William Tetley, International Maritime and Admiralty Law 

237 (2002)). Singapore has incorporated the COLREGs into its

domestic law and its courts consider them when evaluating maritime 

negligence.

14

 See The Dream Star at [2], [47]–[50]. Accordingly, the 

COLREGs are central to our analysis.

III. Standards of Review.

Although we look to Singapore law for the relevant substantive 

negligence rules, federal law supplies the applicable standards of 

appellate review. See Otal Invs. Ltd. v. M.V. Clary, 494 F.3d 40, 50 (2d 

Cir. 2007) (“Otal II”); Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 

789, 796 n.11 (9th Cir. 1980). These standards generally track those 

applicable in other areas of federal law. See Tandon, 752 F.3d at 240 

n.1.

In reviewing a judgment entered after a bench trial, we review 

the district court’s factual findings only for clear error. See Vasquez v. 

GMD Shipyard Corp., 582 F.3d 293, 297 (2d Cir. 2009). The causes of a 

maritime collision are factual findings, see Otal II, 494 F.3d at 59, as is 

a district court’s apportionment of liability for such a collision,see Otal 

Invs. Ltd. v. M/V CLARY, 673 F.3d 108, 113 (2d Cir. 2012) (“Otal IV”) 

(per curiam). Thus, we must set aside the district court’s conclusions 

on these issues only if, upon reviewing the entire record, we are “left 

with the definite and firm conviction that a mistake has been 

committed.” Siemens Energy, Inc. v. Petróleos de Venezuela, S.A., 82 

14 The same is true for the United States and “every [other] shipping 

nation in the world.” Crowley Marine Servs., 530 F.3d at 1172 (internal 

quotation marks omitted).
32 No. 22-1765-cv

F.4th 144, 153 (2d Cir. 2023) (internal quotation marks and citation

omitted).

Questions of law are different. In this context, as elsewhere, 

“[w]e review conclusions of law, and the application of the law to the 

facts, de novo.” Vasquez, 582 F.3d at 297. “[A] court’s determination of 

foreign law ‘must be treated as a ruling on a question of law’” subject 

to de novo review. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 

585 U.S. 33, 42 (2018) (quoting Fed. R. Civ. P. 44.1). This principle 

extends to a court’s interpretation of the COLREGs.15 See, e.g., Otal II, 

494 F.3d at 53. We are therefore unconstrained by the district court’s 

interpretations either of Singapore law in general or of the COLREGs

in particular.

Review of a district court’s determination of negligence is more 

complicated. “[T]he rule in this circuit has long been to consider 

[rulings on negligence] de novo.” In re M/V MSC Flaminia, 72 F.4th 430, 

446 (2d Cir. 2023). We adhere to that rule here. We acknowledge that 

we are alone among our sister circuits in embracing this standard and 

that some on our court have thoughtfully suggested in dicta that we 

should embrace the majority rule. See, e.g., Payne v. United States, 359 

15 Contrary to the Government’s suggestion, we do not read Ching Sheng 

Fishery Co. v. United States, 124 F.3d 152 (2d Cir. 1997), as mandating that we 

treat “[a] district court’s determination that a ship violated the COLREGs” 

as “a finding of fact.” U.S. Br. at 24. In Ching Sheng, the COLREGs questions 

were predominantly factual, not legal. For example, we observed that 

“[t]he question of what constitutes a ‘safe speed’ is relative to the situation 

confronting the vessel at any given moment” and accordingly analyzed the 

“situation” of the vessel involved. Ching Sheng, 124 F.3d. at 159 (quoting 

COLREG 6). Thus, Ching Sheng indicates only that, in some cases, a district 

court’s finding concerning COLREGs violations may effectively be subject 

to clear-error review because the interpretation of the COLREGs is not at 

issue. It does not support the Government’s proposed broader rule that 

such findings are always subject to clear-error review.
33 No. 22-1765-cv

F.3d 132, 135–137 & n.2 (2d Cir. 2004). At any rate, “in practice,” our 

rule is “‘not so different’ from the other circuits’ more deferential 

standard of review.” M/V MSC Flaminia, 72 F.4th at 446 (quoting In re 

City of New York, 522 F.3d 279, 282 (2d Cir. 2008)). In most cases, 

negligence determinations turn upon factual findings subject to clearerror review. See id. Thus, when a district court makes no error 

interpreting applicable law and no clear error in finding material 

facts, we ordinarily will sustain that court’s negligence determination. 

IV. Fault.

We now turn to the merits. Energetic claims that 100% of the 

fault rests with MCCAIN and that, in attributing 20% of the fault to 

ALNIC, the district court erred. Energetic advances two principal

arguments in support of its position: (1) the district court erred in 

concluding that ALNIC was “free to maneuver” when MCCAIN

activated her red-over-red lights; and (2) the district court erred in 

finding that ALNIC negligently failed to mitigate the damage to 

MCCAIN either before or after the moment of the collision. Energetic 

also contends that the district court improperly considered the 

dishonesty of ALNIC’s crewmembers following the collision when 

allocating fault. 

Energetic leaves unchallenged one of the district court’s central

conclusions: that ALNIC was negligent in her failure to properly staff 

her bridge and to assess the risk of collision in the “heavily trafficked 

Singapore Strait.” Energetic Tank, 607 F. Supp. 3d at 363–64. 

COLREGs Rule 5 requires vessels to “maintain a proper look-out” “at 

all times.”16 Rule 7(a) requires vessels to “use all available means 

appropriate” to determine the risk of collision. ALNIC violated both 

16 In discussing the parties’ fault, we cite provisions of the COLREGs 

simply as “Rule [Number].”
34 No. 22-1765-cv

rules. Her short-staffed crew relied inappropriately on autopilot and 

missed crucial signs of collision risk, including MCCAIN’s audio 

announcement of “loss of steering.” Id. at 364. The district court 

concluded that these COLREGs violations by ALNIC were proximate 

causes of the collision, which enhanced the tanker’s overall fault. The 

district court did not err in doing so. 

We will briefly set forth the key provisions of the COLREGs 

governing the arguments Energetic does raise. We then consider—

and reject—each argument in turn, ultimately concluding that the 

district court did not err in concluding that ALNIC was negligent 

under Singapore law. We also hold that the district court did not 

clearly err in allocating 20% of the fault for the collision to ALNIC and 

80% to MCCAIN.

a. Rule 17’s Three-Tier Framework for the Obligations of 

Stand-On Vessels.

Among much else, the COLREGs establish a “three-tier 

framework” governing when vessels may not, may, or must take 

affirmative action to avoid collision. Id. at 366. 

1. Rule 17(a)(i) requires that a stand-on vessel—that is, a vessel 

being overtaken—generally “shall keep her course and 

speed.”

2. Rule 17(a)(ii) provides that a stand-on vessel “may . . . take 

action to avoid collision by her maneuver alone, as soon as 

it becomes apparent to her that the [give-way] vessel”—that 

is, a vessel overtaking another—“is not taking appropriate 

action in compliance with these Rules.” 

3. Rule 17(b) mandates that “[w]hen, from any cause, the 

[stand-on] vessel . . . finds herself so close that collision 

cannot be avoided by the action of the give-way vessel 
35 No. 22-1765-cv

alone, she shall take such action as will best aid to avoid 

collision.”

Because the COLREGs will inform our negligence analysis, we must 

examine which Rule applied to stand-on vessel ALNIC at each relevant 

period on August 21, 2017. See The Dream Star at [47]. 

b. The District Court’s Finding that ALNIC Was “Free to 

Maneuver” after MCCAIN Activated Her Red-Over-Red 

Lights Was Not Material to the Allocation of Fault.

Energetic first challenges the district court’s analysis of when 

Rule 17(a)(i) ceased to apply and Rule 17(a)(ii) became operative. 

The district court concluded that Rule 17(a)(ii) took effect once 

MCCAIN energized her red-over-red lights at 5:21:25 (2:33 bc). ALNIC 

was therefore “free to maneuver” to reduce the risk of collision. 

Energetic Tank, 607 F. Supp. 3d at 366. The district court determined 

that Rule 17(b) took effect 112 seconds later, at 5:23:17 (0:41 bc). That 

was when an ALNIC crewmember concluded that MCCAIN was doing 

a “wrong maneuver” and when “it should have been clear to 

everyone that MCCAIN could no longer avoid the collision by her 

actions alone.” Id. at 367. At that point, ALNIC was “required” to act. 

Id.

Energetic disagrees. It argues that Rule 17(a)(ii) never

controlled. Rather, Rule 17(a)(i) prohibited ALNIC from changing her 

course or speed until 5:23:17 (0:41 bc). Energetic primarily adverts to 

(1) MCCAIN’s putative failure to de-activate her masthead lights upon 

activating her red-over-red lights; and (2) the difficulty of 

determining what action was appropriate for ALNIC given the 

available information. Energetic does not challenge the district 

court’s conclusion concerning Rule 17(b)—that once MCCAIN was 
36 No. 22-1765-cv

plainly making the “wrong maneuver,” ALNIC was obligated to “take 

such action as [would] best aid to avoid collision.” Rule 17(b).

Energetic’s argument is misdirected. Under Singapore law, 

liability in maritime-collision cases must be apportioned “to the 

degree in which each ship was in fault.” Maritime Conventions Act 

1911 § 1(1); accord The Mount Apo at [94]–[96]; The Dream Star at [124]–

[127]. The Brussels Collision Liability Convention of 1910, which 

Singapore has ratified, imposes a similar framework. See Thomas J. 

Schoenbaum, 2 Admiralty & Mar. Law § 14:5 (6th ed. 2023). 

Singapore courts have made clear that “the determinative factor for 

apportionment is . . . the comparative appreciation of the degree in 

which the respective faults of the vessels have contributed to the 

result of the collision.” The Dream Star at [125]. Although allocation 

of liability requires considering “the nature and quality of a ship’s 

faults,” id. at [126] (citation omitted), “[i]t is not a question of 

distributing moral blame,” id. at [125]. Thus, only legal fault—here, 

negligence—is relevant. 

The district court nowhere concluded that ALNIC’s failure to act 

between 5:21:25 and 5:23:17 (when Rule 17(a)(ii) authorized ALNIC to 

maneuver to avoid collision) was negligent. Rather, as relevant here, 

the district court concluded only that “Rule 17(b) required ALNIC to 

act by 5:23:17.” Energetic Tank, 607 F. Supp. 3d at 367 (emphasis 

omitted). Later, it elaborated that after ALNIC’s crew observed 

MCCAIN’s “wrong maneuver,” “ALNIC dallied in autopilot and failed 

to take any action at all; that choice was negligent.” Id. (emphasis 

added). To be sure, the district court criticized ALNIC for “forfeit[ing] 

valuable time and sea space” after Rule 17(a)(ii) took effect. Id.

(internal quotation marks omitted). But the district court also 

recognized that Rule 17(a)(ii) created a “grey area” that might 

deceptively seem clear in “hindsight.” Id. (internal quotation marks 
37 No. 22-1765-cv

omitted). We do not read the district court’s Rule 17(a)(ii) analysis as 

encompassing a negligence determination.

Nor did the district court rely on that analysis to allocate fault. 

The district court correctly stated Singapore law governing 

apportionment of liability: “Under the Brussels Convention, courts 

consider both ‘the relative culpability of each vessel and the relative 

extent to which the culpability of each caused the collision.’” Id. at 

359–60 (quoting Otal II, 494 F.3d at 63). True, the district court may 

have “distribut[ed]” some “moral blame.” The Dream Star at [125].

But what matters is whether those moral judgments improperly 

influenced the court’s legal conclusions. We perceive no such 

influence here.

The district court allocated no fault to ALNIC for her actions in

the 112 seconds after MCCAIN signaled red-over-red. We find neither 

clear error in this apportionment nor error in the district court’s 

underlying legal analysis.

c. The District Court Did Not Err in Concluding that 

ALNIC Negligently Failed to Mitigate the Collision 

Damage Both Before and After Striking MCCAIN.

Energetic next contests the district court’s analysis of ALNIC’s 

duty to mitigate collision damage under Rule 17(b). The district court 

concluded that ALNIC was negligent both in the 41 seconds preceding 

the collision (after ascertaining MCCAIN’s “wrong maneuver”) and in 
38 No. 22-1765-cv

the 42 seconds following the moment of impact. Energetic challenges 

both conclusions. We consider them in sequence.

1. The District Court Did Not Err in Concluding that 

ALNIC Negligently Failed to Mitigate the Collision 

Damage Before Striking MCCAIN.

The district court identified two maneuvers available to ALNIC

in the 41 seconds before the collision, starting at 5:23:17. First, by 

slowing down, ALNIC would have “reduc[ed] the force of impact.” 

Energetic Tank, 607 F. Supp. 3d at 367. Second, by turning hard to 

port—the same direction in which MCCAIN was veering—ALNIC

would have struck MCCAIN with a “glancing blow” rather than a “Tbone.” Id. at 367 & n.22. Expert testimony confirmed that together, 

these maneuvers would have “meaningfully mitigated the collision.” 

Id. at 367; see id. at 356. The district court accordingly concluded that 

ALNIC’s choice not “to take any action at all” during this period was 

negligent. Id. at 367. 

Energetic asserts that “no evidence” supported the district 

court’s finding that a hard turn to port would have reduced the 

collision damage. Energetic Br. at 56. “On this record,” Energetic 

insists, “it is just as probable that a glancing blow would have opened 

more of MCCAIN’s compartments and caused more flooding, or 

flooded MCCAIN’s engine room, or ruptured ALNIC’s tanks 

containing explosive pyrolysis fuel oil.” Id. at 58. 

We find Energetic’s assertion unpersuasive. First, Energetic 

effectively ignores ALNIC’s failure to slow down. ALNIC’s duty to 

reduce her speed was clear. Cf. Rule 8(e). When it is “impracticable” 

for a vessel “to avoid collision,” it may well be “imperative for her to 

reverse full speed astern.” The Etruria, 147 F. 216, 217 (2d Cir. 1906);
39 No. 22-1765-cv

cf. The Umbria, 166 U.S. 404, 414 (1897); The Persian, 224 F. 441, 443 (2d 

Cir. 1915). That principle of prudent seamanship applied here. 

ALNIC’s imprudent conduct almost certainly caused greater 

collision damage. In the ordinary course, a collision at higher speed 

will be more destructive than one at lower speed. No expert 

testimony was needed to establish this common-sense precept. Cf.

Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) Thus, the 

district court did not clearly err in finding that ALNIC’s failure to slow 

down before the collision had “causative potency.” The Mount Apo at 

[95] (internal quotation marks, citation, and emphasis omitted). Nor 

did the district court err in concluding that ALNIC’s actions in this 

regard amounted to negligence.

Second, Energetic does not seriously contest the district court’s 

finding that ALNIC should have turned to port. Here again, ALNIC’s 

duty was apparent. We determine the demands of good seamanship 

by looking to the conduct of a prudent mariner under the 

circumstances. See The Iran Torab [1988] 2 Lloyd’s Rep. 38, 43 RHC.

17

 

From this perspective, good seamanship required doing what would 

likely reduce collision damage. See Rules 2(a), 6, 7. That every option 

involved some risk did not change ALNIC’s obligation to act 

reasonably. In this case, witness testimony sufficiently supported the 

district court’s conclusion that reducing ALNIC’s angle of collision

was a reasonable option. See App’x at 1562–63; 1755–56. 

Energetic’s contentions concerning causation are merely 

speculative. Evidence showed that because ALNIC struck MCCAIN at 

48.5 degrees and not some smaller angle, she pierced MCCAIN’s hull

and the two vessels became entangled. See App’x at 2026–27. 

17 Consistent with the conventions of the Singapore Academy of Law, 

“LHC” and “RHC” refer to the left-hand and right-hand columns of pages 

in Lloyd’s Law Reports. 
40 No. 22-1765-cv

Energetic has not established that the district court’s finding to this 

effect was clearly erroneous. See Vasquez, 582 F.3d at 297.

Accordingly, the district court did not err in finding that ALNIC’s 

failure to turn was a “causative fault” amounting to negligence. The 

Mount Apo at [95].

2. The District Court Did Not Err in Concluding that 

ALNIC Negligently Failed to Mitigate the Collision 

Damage After Striking MCCAIN.

The district court also faulted ALNIC for “le[aving] her engines 

running for 42 seconds after the collision and le[aving] her autopilot 

on for over a minute.” Energetic Tank, 607 F. Supp. 3d at 368. Because

“[t]hese two oversights substantially worsened the collision,” the 

district court concluded that they increased ALNIC’s liability. Id. 

Indeed, the district court deemed ALNIC’s failure to mitigate the 

damage after the collision “ALNIC’s most inexcusable fault.” Id.

Energetic claims once more that the district court’s causation 

finding was clearly erroneous, arguing that “nothing in the record 

support[ed] the [district] court’s finding that . . . ALNIC’s crew could 

have done anything to stop the sweep, halt the massive tanker’s 

forward momentum, or otherwise mitigate the damage to MCCAIN”

after the collision. Energetic Br. 59.

We disagree. To start, ALNIC’s crew was obliged to exercise the 

“reasonable skill or care expected of a competent/prudent seaman to 

prevent the vessel from doing injury.” The Mount Apo at [97] (citation 

omitted). This obligation applied when ALNIC entered the Singapore 

Strait without taking the steering off autopilot, as required by ALNIC’s 

manager’s own internal regulations, and without operating at Bridge 

Manning Level III, which required a dedicated anti-collision officer 

and a dedicated lookout. The obligation continued when ALNIC
41 No. 22-1765-cv

failed first to slow down after she recognized MCCAIN’s “wrong 

maneuver,” and then to turn to port to reduce the angle of impact.

After the vessels collided, ALNIC’s duty to exercise the “skill or 

care expected of a competent/prudent seaman” continued. Id. At that 

point, no reasonable mariner would have kept ALNIC’s engine 

running or her autopilot engaged. To the contrary, mariners “cannot 

make a greater mistake” than to suppose that automatic steering

alone will extricate them from danger. The Fogo [1967] 2 Lloyd’s Rep. 

208, 221 RHC. For ALNIC to “dall[y] in autopilot” after the collision 

was a breach of her duty. Energetic Tank, 607 F. Supp. 3d at 367. 

These faults, too, were causative. Energetic observes that the 

United States’s expert did not opine upon what might have happened 

if ALNIC’s post-collision conduct had been different. But as the 

district court noted, that same expert testified that (1) ALNIC’s rotation 

after the collision was caused in part by her autopilot and her running 

engine; and (2) that rotation exacerbated the gash in MCCAIN’s hull.

On this basis, the district court’s finding that ALNIC’s inaction 

exacerbated the collision damage was plainly “permissible.” Vasquez, 

582 F.3d at 297 (internal quotation marks omitted). Consequently, we 

find no error in the district court’s conclusion that ALNIC’s conduct 

shortly before and immediately after impact was negligent.

d. When Allocating Fault, the District Court Properly 

Considered ALNIC’s Crewmembers’ False Statements.

Finally, the district court considered the false log entries and 

other misrepresentations by ALNIC’s crew when allocating liability. 

As noted above, ALNIC’s log misrepresented her staffing, engine 

speed, and steering mode, and her crewmembers misrepresented that 

they had not seen MCCAIN’s red-over-red lights. The district court 

concluded that although these lies were not “causative,” they
42 No. 22-1765-cv

“underscore[d] the culpability of [ALNIC’s] crew.” Energetic Tank, 607 

F. Supp. 3d at 369. 

Energetic resists this conclusion. It claims that the district court 

erroneously drew upon the false statements of ALNIC’s crewmembers

to define the proper standard of care, rather than merely to support 

factual findings.

We see no such error. Under Singapore law, “only causative 

fault is relevant” to the apportionment of liability. The Mount Apo at 

[95]. But we must consider both “blameworthiness and causative 

potency.” Id. (internal quotation marks, citation, and emphasis 

omitted). Thus, once we have determined that a fault is “causative,”

we must consider that fault’s “nature and quality.” Id. (internal 

quotation marks and emphasis omitted). We may presume that logs 

falsified by a vessel’s crew place her “in the best possible light.” The 

Lok Vivek [1995] 2 Lloyd’s Rep. 230, 236 LHC; see also id. at 239–40; cf.

Otal II, 494 F.3d at 59. This presumption, in turn, can inform our 

assessment of the “nature and quality” of the vessel’s faults. The 

Mount Apo at [95]. The false statements of ALNIC’s crewmembers bore 

upon the same faults that the district court found causative. That 

ALNIC’s crew thought those faults were important to hide 

underscores their gravity. The district court properly considered this 

concealment.

***

We find no clear error in the district court’s factual findings and 

no error in its legal conclusions. We therefore must affirm the district 

court’s judgment rejecting Energetic’s counterclaim against the 

United States for vessel damages. In so doing, we also must affirm 
43 No. 22-1765-cv

the district court’s apportionment of fault: 20% to ALNIC and 80% to

MCCAIN.

V. Sovereign Immunity.

Energetic also sought contribution and indemnification from 

the United States for damages that Energetic might later be found to 

owe the Sailor-Claimants.

To proceed, Energetic’s claims must first overcome the United 

States’s sovereign immunity. “[T]he United States, as sovereign, is 

generally immune from suits seeking money damages.” Dep’t of 

Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024). Such 

suits therefore may not proceed without the United States’s 

“consent.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Indeed, 

“the existence of consent is a prerequisite for jurisdiction.” Id. 

“Congress may choose to waive” the United States’s immunity, but it 

must do so “unmistakably.” Kirtz, 601 U.S. at 48 (internal quotation 

marks omitted and alterations incorporated). And the Supreme Court 

has held that to waive sovereign immunity against suits by members 

of the armed forces for damages relating to their service, Congress 

must speak even more clearly. Thus, for example, the broad-brush

immunity waiver in the Federal Tort Claims Act (“FTCA”) does not 

apply to such service-related suits.

18

 See Feres v. United States, 340 U.S. 

135, 146 (1950); United States v. Johnson, 481 U.S. 681, 692 (1987). The 

same is true when a party seeks indemnification from the United 

States based on such claims. See Stencel Aero Eng’g Corp. v. United 

States, 431 U.S. 666, 673–74 (1977); Lockheed Aircraft Corp. v. United 

18 The FTCA provides: “The United States shall be liable, respecting the 

provisions of this title relating to tort claims, in the same manner and to the 

same extent as a private individual under like circumstances . . . .” 

28 U.S.C. § 2674.
44 No. 22-1765-cv

States, 460 U.S. 190, 197 n.8 (1983). This principle primarily reflects 

Congress’s interests in preventing “civilian court[s]” from “secondguess[ing] military decisions” and in preserving “essential military 

discipline.” United States v. Shearer, 473 U.S. 52, 57 (1985).

The district court concluded that Feres and its successors barred 

Energetic’s contribution and indemnification claims. Energetic 

challenges that conclusion. 

Energetic does not contest that the Sailor-Claimants are 

members of the armed forces (or their representatives) bringing suits 

for damages relating to their service. Still, Energetic notes that this 

case, unlike Feres and Stencel, arises under not the FTCA but the Suits 

in Admiralty Act (“SIAA”) and the Public Vessels Act (“PVA”).19 

Energetic further observes that its claims concern not direct damages 

but contribution or indemnification following the United States’s own 

invocation of federal jurisdiction. These procedural differences 

matter, Energetic insists, because the Government has already 

produced evidence of its own fault in the Phase 1 trial, thereby 

disclaiming any further interest in military discipline. Finally,

Energetic notes some potential unfairness: to the extent that joint-andseveral liability is available here, Energetic may have to pay the full 

19 The SIAA provides: “In a civil action in admiralty brought by the 

United States . . . an admiralty claim in personam may be filed or a setoff 

claimed against the United States.” 46 U.S.C. § 30903(a). 

The PVA states: “If the United States brings a civil action in admiralty 

for damages caused by a privately owned vessel, the owner of the vessel, 

or the successor in interest, may file a counterclaim in personam, or claim a 

setoff, against the United States for damages arising out of the same subject 

matter.” 46 U.S.C. § 31102(b).
45 No. 22-1765-cv

value of the Sailor-Claimants’ damages claims, even though ALNIC

was only 20% at fault for the collision.

We agree with the district court that the United States’ 

sovereign immunity bars Energetic’s contribution and 

indemnification claims. We have held that the “Feres doctrine” bars 

direct claims against the United States under the PVA and the SIAA, 

despite those statutes’ immunity waivers. Cusanelli v. Klaver, 698 F.2d 

82, 85 (2d Cir. 1983); cf. Dobson v. United States, 27 F.2d 807, 809 (2d 

Cir. 1928).

20

 The alternative would create an “artificial 

distinction . . . between accidents to servicemen on land and at sea.” 

Hillier v. S. Towing Co., 714 F.2d 714, 724 (7th Cir. 1983). Thus, the 

statutory differences between Feres and this case referenced by 

Energetic do not support Energetic’s position. 

Neither are the procedural differences significant. The 

Supreme Court has instructed that the reasons for barring “thirdparty indemnity action[s]” by servicemembers are “essentially the 

same” as those for barring “direct action[s].” Stencel, 431 U.S. at 673;

see also Vulcan Materials Co. v. Massiah, 645 F.3d 249, 267 (4th Cir. 2011). 

We believe the same is true for contribution claims. See In re

McAllister Towing & Transp. Co., 432 F.3d 216, 224 (3d Cir. 2005). And 

as a general matter, “jurisdictional limitations based on sovereign 

immunity apply equally to counterclaims against the Government,”

where the United States has invoked federal jurisdiction for other 

purposes. United States v. Forma, 42 F.3d 759, 764 (2d Cir. 1994) 

(internal quotation marks and citation omitted).

21

 In this case, we 

20 It appears that each of our sister circuits to have considered the 

question has agreed. See Blakey v. U.S.S. Iowa, 991 F.2d 148, 151–52 (4th Cir. 

1993) (collecting cases).

21 Our precedents recognize a “recoupment-counterclaim” exception to 

this rule, under which a party sued by the United States may subtract the 
46 No. 22-1765-cv

need do little more than combine these principles to hold that 

sovereign immunity bars Energetic’s contribution and 

indemnification claims. Not to do so would create an aberrant 

exception to Feres’s ordinary sweep.

We reject as well Energetic’s suggestion that the Feres doctrine 

does not apply because the Government participated in the Phase 1 

trial. It is true that Feres reflects the judiciary’s reluctance to “secondguess[] military orders” or to “require members of the Armed 

Services to testify in court as to each other’s decisions and actions,” 

and that these scenarios have already materialized here. Stencel, 431 

U.S. at 673. But we do not “inquire into ‘the extent to which 

particular’” proceedings, such as the Phase 2 trial, “would call into 

question military discipline and decisionmaking.” Doe v. Hagenbeck, 

870 F.3d 36, 45 (2d Cir. 2017) (internal quotation marks omitted) 

(quoting United States v. Stanley, 483 U.S. 669, 682 (1987)). Feres

reflects our reading of Congress’s enactments. See 340 U.S. at 140, 146. 

Nothing in either the SIAA or the PVA permits case-by-case 

consideration of military needs. 

We recognize that MCCAIN, not ALNIC, was overwhelmingly 

responsible for the collision. We recognize, too, that several jurists—

including some on this court—have criticized the Feres doctrine. See, 

e.g., Taber v. Maine, 67 F.3d 1029, 1038–42 (2d Cir. 1995). Even so, what 

Energetic would call that doctrine’s extension, we view as only its 

amount it is owed by the United States from any damages it must pay. See 

Forma, 42 F.3d at 764–65. The PVA and SIAA also allow parties to claim a 

“setoff” that accomplishes largely the same thing. 46 U.S.C. §§ 31102(b), 

30903(a). While these options might have been available to Energetic at the 

outset of this action, it failed to timely raise them in the district court. 

Accordingly, we decline its request to remand for the district court to 

consider them now.
47 No. 22-1765-cv

ordinary application to new facts. It is not for us to say that the United 

States’s assertion of immunity here goes too far.

CONCLUSION

We DISMISS the Sailor-Claimants’ cross-appeals (Nos. 22-2871 

and 22-2883). We AFFIRM the judgments of the district court

(1) apportioning liability and (2) dismissing Energetic’s contribution 

and indemnification claims in both Energetic’s appeals (Nos. 22-1765 

and 22-2774).