                UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                    _______________________

                         No. 96-31268
                    _______________________


     HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
                                           Plaintiffs-Appellees,

                              v.

MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc.,
                   BLUE EMERALD SHIPPING CO;
         KASSOS MARITIME ENTERPRISES LTD In Personam;
              ASTROLABE SHIPPING LTD, In Personam,
                                         Defendants - Appellants,

                ______________________________

      ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD;
               KASSOS MARITIME ENTERPRISES LTD;
           MOUNT YMITOS MV, for exoneration from or
                    limitation of liability,
                                         Plaintiffs - Appellants,

                              v.

                   HAL ANTILLEN NV, ET AL.,
                                                      Claimants,

     HAL ANTILLEN NV; HOLLAND AMERICA LINE WESTOURS, INC.,
                                          Claimants - Appellees,

                ______________________________

      ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD;
               KASSOS MARITIME ENTERPRISES LTD;
                                        Plaintiffs - Appellants,

                              v.

                      NOORDAM MV; IN REM;
              HAL ANTILLEN NV, OWNER, IN PERSONAM
                                        Defendants - Appellees,




                ______________________________

  V A O EXPORTKHLEB; ROSSIYA INSURANCE COMPANY LTD OF MOSCOW,
                                        Plaintiffs - Appellants,

                              v.

             NOORDAM MV, its tackle, etc. in rem;
                       HAL ANTILLEN N V;
       HOLLAND AMERICA LINE WESTOURS, INC., in personam,
                                         Defendants - Appellees.


                    _______________________

                            98-30306
                    _______________________


     HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
                                         Plaintiffs - Appellees’

                              v.

MOUNT YMITOS MS, Her engines, tackle, furniture, apparel, etc.,
       in rem; BLUE EMERALD SHIPPING CO; KASSOS MARITIME
                 ENTERPRISES LTD, In Personam;
              ASTROLABE SHIPPING LTD, In Personam,
                                        Defendants - Appellants,

                _______________________________

  ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS
  MARITIME ENTERPRISES LTD; MOUNT YMITOS MV, for exoneration
               from or limitation of liability,
                                       Plaintiffs - Appellants,

                              v.


                               2
                    HAL ANTILLEN N V; ET AL
                                                    Defendants,

     HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS, INC,
                                          Claimants - Appellees,




                   ________________________

   ASTROLABE SHIPPING LTD; BLUE EMERALD SHIPPING LTD; KASSOS
                   MARITIME ENTERPRISES LTD,
                                        Plaintiffs - Appellants,

                              v.

   NOORDAM MV, in rem; HAL ANTILLEN N V, owner, in personam,
                                         Defendants - Appellees,

                    _______________________

   YVONNE CLAIBORNE HUMPHREYS, individually and on behalf of
       all passengers aboard the M/V NOORDAM on 11/6/93,
                                                      Plaintiff,

                              v.

                   HAL ANTILLEN N V; ET AL,
                                                    Defendants,

     HAL ANTILLEN N V; HOLLAND AMERICA LINE WESTOURS INC,
                             Third-party plainitffs - Appellees,

                              v.

MOUNT YMITOS MS, her engines, tackle, furniture, apparel, etc.,
               in rem; BLUE EMERALD SHIPPING LTD;
    KASSOS MARITIME ENTERPRISES LTD; ASTROLABE SHIPPING LTD,
                            Third-party defendants - Appellants,

                    _______________________


                               3
   V A O EXPORTKHLEB; ROSSIYA INSURANCE COMPANY LTD OF MOSCOW,
                                         Plaintiffs - Appellants,

                                    v.

     NOORDAM MV, its tackle, ect., in rem; HAL ANTILLEN N V;
         HOLLAND AMERICA LINE WESTOURS INC, in personam,
                                          Defendants - Appellees.

_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
_________________________________________________________________
                          July 30, 1998

Before JONES and SMITH, Circuit Judges, and SHAW, District
Judge.*

EDITH H. JONES, Circuit Judge:

            Appellants Astrolabe Shipping Ltd., Blue Emerald Shipping

Ltd., and Kassos Maritime Enterprises Ltd., individually and as

claimants of the M/V MOUNT YMITOS and the MOUNT YMITOS, in rem

(hereinafter collectively referred to as “appellants” or “the MOUNT

YMITOS”) appeal the decision of the district court, after a trial

to the bench, which apportioned liability against them for a

collision in the Southwest Pass south of New Orleans.         We reverse

the district court’s finding that there existed a custom of passing

starboard to starboard in the waterways in which the collision

occurred.      Although   as   to   the   court’s   other   findings   and

conclusions we find no reversible error, we must remand to allow


     *
         District Judge of the Western District of Louisiana,
sitting by designation.

                                     4
the district court the opportunity to reapportion liability in

light of this modification.

                            FACTUAL BACKGROUND

           As appellees Hal Antillen N.V. and Holland America Line

Westours, Inc. (hereinafter collectively referred to as “appellees”

or “the NOORDAM”) state, this case turns on a turn.         On the night

of November 6, 1993, at approximately 8:40 p.m., the NOORDAM, a

33,933 ton passenger liner, and the MOUNT YMITOS, a 33,186 ton

cargo ship, collided in the Southwest Pass, a shipping lane south

of New Orleans, Louisiana.         The waters in which the collision

occurred   are   governed   by   navigation   “traffic   laws”   known   as

COLREGS, 33 U.S.C. § 1602 et seq. (International Regulations for

Preventing Collisions at Sea, 1972).

           The NOORDAM was inbound heading northward, returning from

a tour of the Caribbean.         The MOUNT YMITOS was outbound heading

southward, leaving for a trip to St. Petersburg, Russia. The MOUNT

YMITOS was in the shipping lane to the east of the NOORDAM; the

vessels were starboard side to starboard side.      The NOORDAM did not

become aware of the MOUNT YMITOS’s position until 90-120 seconds

before the collision.       Initially, the MOUNT YMITOS was off the

NOORDAM’s starboard side showing only green lights to the NOORDAM.1

     1
        A ship has green lights on her starboard side and red
lights on her port side for identification. Therefore, when one
approaches a ship head-on, one sees both green and red lights. If
one sees only the starboard side of a ship, one would see only

                                     5
The NOORDAM, therefore, could have concluded that the ships would

safely   make   a   starboard-to-starboard   pass.   However,   shortly

thereafter, the MOUNT YMITOS made a sudden starboard turn at high

speed.   Instead of seeing green lights, the NOORDAM now saw only

red lights.     In order to avoid the collision, the NOORDAM made a

hard turn to port, but it was too late.       The vessels collided.

           The district court conducted a nine day bench trial to

determine fault.      The court’s factual findings were reached with

considerable difficulty:

          All areas of this litigation have been hotly
     contested and not even the location of the impact could
     be agreed to by counsel for the parties. If the Court
     accepted the position forwarded by each side, this
     collision would have never happened[;] in fact, there
     would have been approximately one mile to spare.
     Unfortunately, that is not the case and this Court has
     been put in the uncomfortable posture of making critical
     factual decisions based upon conflicting and limited
     evidence.     Credibility of the witnesses and the
     credibility of the vessels’ documentation were the
     deciding factors for the Court in this litigation.

The court apportioned 90% of the fault to the MOUNT YMITOS and 10%

to the NOORDAM.     The MOUNT YMITOS timely appealed.2


green lights.
     2
          The appellants filed this case originally as an
interlocutory admiralty appeal under 28 U.S.C. § 1292(a)(3) from
the district court’s interlocutory judgment on liability entered on
November 29, 1996. After full briefing and oral argument before
this court, the trial of the damages portion of the case proceeded
in the district court.     On March 31, 1998, the district court
entered judgment as to the amount of damages thereby entering final
judgment in this action. At the parties’ request and because the
final judgment does not raise new issues in this appeal, the record

                                   6
                                     DISCUSSION

                             1.    Standard of Review

              A district court’s findings of fact are reviewed for

clear error.       See F ED. R. CIV. P. 52(a); Burma Navigation Corp. v.

RELIANT SEAHORSE MV, 99 F.3d 652, 656-57 (5th Cir. 1996).                   “Where

the   court’s      finding    is   based    on   its   decision   to    credit   the

testimony of one witness over that of another, ‘that finding, if

not internally inconsistent, can virtually never be clear error.’”

Id.   at   657.      Questions      of    negligence,    proximate      cause,   and

allocation of fault are normally factual questions.                    See id.

                                   2.    Discussion

              A.    Custom of starboard to starboard passing

              The district court found that in the area in which the

collision occurred, there exists a custom of passing starboard to

starboard.      MOUNT YMITOS along with the Associated Branch Pilots,

appearing as amicus curiae, argue that the district court erred by

declaring a custom of starboard to starboard passing in the area of

the Southwest Pass.          We agree.

              As a general matter, “[c]ourts do not favor giving effect

to    local    customs   involving         deviations”    from    the    rules   of



in this case has been supplemented to include the March 31, 1998,
judgment and the district court’s Order and Reasons. The actions
have been consolidated, and this appeal is now from a final
judgment.

                                           7
navigation, and they make an exception only when the customs “are

firmly established, and well understood.”                  The GIOVE, 27 F.2d 331,

332 (5th Cir. 1928).          “A custom will be recognized only if it does

not conflict with the rules of navigation. Custom that contradicts

a statutory rule of navigation will not be enforced.”                  2 Thomas J.

Schoenbaum, Admiralty and Maritime Law § 14-2, at 260-61 (1994).

The COLREGS and other navigational statutes are binding enactments

that must be adhered to closely.                See id. at 256.         COLREG 14

provides that vessels will ordinarily pass port to port.                   Because

this collision occurred within an area governed by the COLREGS, the

superposition of a starboard-to-starboard passing “custom” could be

confusing.3        Moreover, the custom found by the district court in

this       case   is   not   published.       There   is    highly   contradictory

testimony concerning the existence or nonexistence of this alleged

custom in this waterway.           Accordingly, we hold that the district

court clearly erred by finding a custom of passing starboard to

starboard, and we reverse on this issue.                     The district court,

however, declined to assess liability based upon its conclusion

that the MOUNT YMITOS failed to follow this alleged local custom.



       3
        Even though the finding of a “custom” does not have the
force of law, invariably applicable to each case, see Canal Barge
Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1361 (5th Cir.
1985), we are concerned lest the district court’s finding of a
custom in dubious circumstances like these may take on a life of
its own.

                                          8
The     court’s     fault       findings          principally       depend        upon   the

applicability or inapplicability of the COLREGS to this fact

situation.       Our disagreement with the court’s finding of a custom

will not impugn its ultimate judgement.

                      B.    Applicability of the COLREGS

             Applying the COLREGS, the district court found that the

MOUNT    YMITOS     was    overwhelmingly          responsible      for     the    vessels’

collision because the MOUNT YMITOS violated COLREG 7(b) (proper use

of radar equipment); COLREG 2 (responsibility and good seamanship);

COLREG 8 (failure to take action to avoid collision); and COLREG 17

(failure to       maintain      course    and       speed    or    make   other     passing

arrangements with the NOORDAM). Compare Acacia Vera Navigation Co.

v. Kezia, Ltd., 78 F.3d 211 (5th Cir. 1996).

             In    assessing      the    NOORDAM’s          responsibility         for   the

collision, the district court ruled that “the NOORDAM should have

kept    a   better    lookout      both       visually       and     with    the     highly

sophisticated equipment onboard.”                   The court then concluded that

the NOORDAM’s “one failing” was that it had violated COLREG 7(b)

because     it    failed   to    use    her       radar   system    properly       to    take

advantage of an early warning of the MOUNT YMITOS’s approach and

take evasive maneuvers to avoid the collision.

             MOUNT YMITOS contends that the district court erred at a

minimum by not finding that because the NOORDAM had not maintained


                                              9
a proper visual lookout, she also violated COLREG 5.4      Although

this is peculiar, we find no reversible error, as the court decided

that the NOORDAM’s failure to maintain a proper lookout was not a

proximate cause of the collision:

           The Court holds that NOORDAM should have kept a
      better lookout both visually and with the highly
      sophisticated equipment onboard. . . . The Court does not
      believe that this was the proximate cause of the
      collision; however, the Court is satisfied that if
      NOORDAM had kept a better lookout, visually and through
      ARPA/radar, she would have been aware of the location and
      maneuvers of MOUNT YMITOS.

After reviewing the record, we cannot say that the district court

clearly erred in concluding that the NOORDAM’s mistakes were not a

proximate cause of the collision.     See Burma Navigation Corp., 99

F.3d at 657.   There is sufficient evidence to support the district

court’s conclusion that the proximate cause of the collision was

the poor seamanship of the MOUNT YMITOS and her imprudent turn to

starboard moments before the collision.    See Acacia Vera, supra.

           By the same token, the court’s failure to find other

COLREG violations on the part of the NOORDAM is also supported by

the record.    For instance, we decline to disturb the district

court’s implicit finding that the NOORDAM did not violate COLREG

14.   The position of the two ships in this case was determined only

after the district court was “put in the uncomfortable posture of

      4
        COLREG 5 mandates that all vessels “at all times maintain
a proper look-out . . . so as to make a full appraisal of the
situation and the risk of collision.”

                                 10
making    critical   factual    decisions       based   upon   conflicting   and

limited    evidence,”     and   we   do   not    find   clear   error   in   its

conclusions.

                     C.   Apportionment of Liability

            MOUNT YMITOS next asserts that the court misapplied

principles of comparative fault.          In maritime collision cases, the

court must allocate liability proportionate to the comparative

degrees of the parties’ fault.             See United States v. Reliable

Transfer Co., 95 S. Ct. 1708, 1715-16 (1975).

            The court apportioned 90% of the fault to the MOUNT

YMITOS and 10% to the NOORDAM.            It based this conclusion on its

evaluation of the testimony of numerous witnesses, the NOORDAM’s

ship logs, and the fact that the log books of the MOUNT YMITOS had

been significantly altered.          See Andros Shipping Co. v. Panama

Canal Co., 184 F. Supp. 246, 259 (D.C.Z. 1960) (“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.’”

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

thorough review of the record is persuasive that the district court

did not misapply the principles of comparative fault, but its

erroneous finding of a starboard-to-starboard passing custom may




                                      11
have influenced the allocation.5          See Hellenic Lines, Ltd. v.

Prudential Lines, Inc., 730 F.2d 159 (4th Cir. 1984).

                                CONCLUSION

            For   the   foregoing   reasons,   we   reverse   the   district

court’s finding of a custom of passing starboard to starboard in

the waterways in which the collision occurred.            The judgment is

VACATED and REMANDED to afford the district court the opportunity

to reapportion liability.

            VACATED and REMANDED.




ENDRECORD




     5
        MOUNT YMITOS also objects to the district court’s refusal
to admit evidence of the conclusions reached after investigations
by the Coast Guard, the National Transportation Safety Board, and
the Dutch NSI. There was no abuse of discretion, however, given
that no rule requires admission of these reports.

                                     12
JERRY E. SMITH, Circuit Judge, dissenting:



     I agree with the panel majority's well-reasoned conclusion

that no custom of starboard passage exists.        But I disagree with

the panel majority's endorsement of the district court's conclusion

that COLREG 14 was not applicable in this situation.       The COLREGS

govern the three basic proximity situations: overtaking (rule 13),

head-on (rule 14), and crossing (rules 15-17).      No one argues that

this was an overtaking situation.      And the district court did not

err in its conclusion that the MOUNT YMITOS's failure to maintain

course precluded it from claiming the privilege of a stand-on

vessel in a crossing situation.   We are therefore left with COLREG

14 or nothing.

     The district court and the panel majority have chosen the

“nothing” option.    The district court found that “the instant

collision presented a passing situation,” and thus that the COLREGS

did not apply.

     I am unaware of any other case that has propounded the

“passing   situation”   alternative     to   the   statutory   COLREGS.

Certainly, ships traveling in opposite directions may pass one

another with miles to spare, and never navigate with respect to one

another.   But Congress has mandated that “[w]hen two power driven

vessels are meeting on reciprocal or nearly reciprocal courses so

as to involve risk of collision each shall alter her course to

                                  13
starboard so that each shall pass on the port side of the other.”

COLREG 14.

      There can be no doubt that these ships were on “nearly

reciprocal courses so as to involve risk of collision.”                 Roughly

twenty minutes before the collision, MOUNT YMITOS and NOORDAM were

traveling at 170 degrees and 325 degrees, respectively: nearly

reciprocal     north-south     courses,     angled    slightly     toward    one

another.6     The district court specifically found that when the

vessels were about 2½ miles apart, a computerized navigation system

determined them to be “on a collision course with a CPA [Closest

Point of Approach] of less than 600 feet.”           When two vessels, each

weighing tens of thousands of tons, are on nearly reciprocal

courses so as to miss each other with only a vessel length or two

to spare, they are in a proximity situation to which the COLREGS

apply.

      It is immaterial that the vessels may have been unaware of

each other's presence.       Each vessel's negligent failure to fulfill

her duty under the COLREGS gives rise to liability, regardless of

the cause of the negligence.         Courts have always required vessels

that should have been aware of each other to navigate with respect



      6
        These angling courses could be interpreted as presenting a crossing
situation. In that case, the result would be the sameSSthe vessels effectively
would be required to effect a port-to-port passage, but liability for their
failure to do so would be placed primarily upon the give-way vessel, in this case
the NOORDAM. See rule 15.

                                       14
to one another.7      Both NOORDAM and MOUNT YMITOS must be held liable

insofar as     they   failed   to   effect   a   port-to-port    passage,    in

accordance with their duties under the COLREGS.

      Because I cannot agree that this proximity situation was not

governed by the COLREGS, I respectfully dissent from Judge Jones's

well-written opinion.




      7
        See, e.g., Oliver J. Olson & Co. v. Luckenbach S.S. Co., 279 F.2d 662,
671 (9th Cir. 1960) (vessels “saw or should have seen” each other's sidelights).

                                      15
