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MARITIMA ARAGUA, S.A. v. M/T TRADE RESOLVE

May 25, 1993

In the Matter of the Complaint of Plaintiff MARITIMA ARAGUA, S.A., as owner and operator of the M/V MAR CORAL for exoneration from or limitation of liability, PETROQUIMICA DE VENEZUELA, S.A., et al., Plaintiffs,
v.
M/T TRADE RESOLVE, et al., Defendants. VETCO GRAY, et al., Plaintiffs, v. M/T TRADE RESOLVE, et al., Defendants. FMC CORPORATION, et al., Plaintiffs, v. M/T TRADE RESOLVE, et al., Defendants. BAROID DRILLING FLUIDS, INC., et al., Plaintiffs, v. M/T TRADE RESOLVE, et al., Defendants. VARISUR C.A., INC., et al., Plaintiffs, v. M/T TRADE RESOLVE, et al., Defendants.


SWEET


The opinion of the court was delivered by: SWEET

Sweet, D. J.

 Certain defendants in these consolidated proceedings, all parties with interests in the ship M/V Trade Resolve, have moved for an order dismissing actions against them on the grounds of forum non conveniens. For the following reasons, the motion is denied.

 The Collision

 On August 7, 1991, at approximately 3 a.m., the M.V. Mar Coral (the "Mar Coral") and the M.T. Trade Resolve (the "Trade Resolve") collided in Lake Maracaibo in Venezuela (the "Collision"). The Mar Coral was carrying a cargo of machinery parts loaded at the Port of Houston, Texas to Maracaibo, Venezuela. The Trade Resolve was carrying a cargo of oil from Venezuela to Port Sandino, Nicaragua. Both vessels were piloted by Venezuelan pilots; the crew of the Mar Coral was Venezuelan and the crew of the Trade Resolve was composed of Greeks, Maldiveans, Russians, Pakistanis and one Filipino. The Mar Coral was subsequently run aground by Venezuelan tugs to avoid sinking, and, after salvage, at least some of the cargo on the Mar Coral was saved.

 The Parties

 Maritima Aragua S.A., a Venezuelan corporation ("Maritima Aragua") is the owner and operator of the Mar coral, a vessel registered in La Guaira, Venezuela. At the time of the accident, the Mar Coral was chartered by Filota Petrolera Ecuatoriana of Chile, which in turn subchartered the vessel to Filota Petrolera Venezuela ("Filota").

 Transport Hellenic, Inc., a Panamanian corporation with its principal place of business in Greece ("Transport Hellenic") is the registered owner of the Trade Resolve, a vessel registered under the flag of Panama. The Trade Resolve was managed and operated by Trade Management Services, Inc. ("TMS"), a Panamian holding corporation with its principal place of business in Greece, until December 11, 1991 (some four months after the accident which gave rise to this litigation) when management of the Trade Resolve was transferred to Marine Management Services M.C., Brokerage and Management Corp. ("Brokerage"), a New York Corporation. The plaintiffs allege they did not name TMS initially as a defendant because it is a shell or shelf corporation with no assets. The Plaintiffs allege that Transport Hellenic, Trade and Transport Inc. [Greece], and Trade and Transport [U.K.] Ltd. ("Trade and Transport") (collectively, the "Trade Resolve Defendants") are all companies related through ownership by Gregory Callimanopulos, a well-known Greek shipowner.

 Baroid Drilling Fluids, Inc., Baroid de Venezuela, S.A., FMC Corp., FMC Wellhead de Venezuela, Vairsur C.A., Fluidos de Perforacion C.A., Vetco Gray and Vetco Gray de Venezuela, C.A., (each a United States or Venezuelan corporation and collectively the "Baroid Claimants") allege they shipped cargo on the Mar Coral which was lost due to the negligence of the Trade Resolve defendants.

 The owners of the remaining cargo on the Mar Coral are the Bariven, S.A., Maraven, S.A., Lagoven, S.A. and Pequiven, S.A., all wholly owned but independent subsidiaries of Petroleos de Venezuela, S.A. (the "PDVSA Claimants").

 Prior Proceedings

 The PDVSA Claimants attached the Trade Resolve in Maracaibo, Venezuela in August 1991, immediately after the collision. The PDVSA Claimants reached an agreement with the owners of the Trade Resolve at that time in the form of a Liverpool and London Steamship Protection and Indemnity Association Limited Letter of Undertaking dated August 22, 1991 (the "Letter of Undertaking"). The Letter of Undertaking specified that the parties would litigate all their claims in London, in part for consideration for $ 5 million security provided to them by the underwriters of the Trade Resolve.

 Later in 1991, the underwriters (both of whom are headquartered in London) of the Trade Resolve and the Mar Coral agreed to have the Admiralty Court, Queens Bench division of the Royal Courts of Justice determine the proportionate liability or comparative fault between the two vessels for the Collision (the "London Action.") The London Action began in September 1991. The two vessel owners and their underwriters are the only parties to the London Action.

 Maritima Aragua, in its capacity as owner of the Mar Coral, filed a complaint in the Southern District of New York on December 4, 1991, for exoneration from and limitation of liability against claims arising from the Collision under the Limitation of Liability Act, 46 U.S.C. § 183 (the "Limitation Proceeding"). Various claimants, including certain of the Baroid Claimants, filed claims in the Limitation Proceeding in excess of $ 20,000,000. The Plaintiffs allege, however, that Maritima Aragua did not notify all potential claimants of the Limitation Proceeding, although it knew that all parties who alleged a cargo loss from the Mar Coral qualified as claimants. The Limitation Action is not subject to the present motion to dismiss.

 On August 6, 1992, Petroquimica and Allianz filed an action for cargo loss and damage against the Trade Resolve Defendants. (Petroquimica also filed a claim against Maritima Aragua in the Limitation Proceeding.)

 Between October 30 and December 7, 1992, four more complaints were filed in the Southern District of New York by the Baroid Claimants against the Trade Resolve Defendants for cargo losses caused by negligence and breach of duty on the part of the crew of the Trade Resolve. The Plaintiffs in those four actions seek to hold the Trade Resolve defendants liable for the essentially same allegations of breach of duty, negligence, and unseaworthiness first brought by Petroquimica and its insurer Allians. On December 22, 1992, the Baroid claimants filed an additional complaint making the same allegations of negligence against TMS. By agreement between the judges pursuant to Rule 15 of the Local Rules of the Southern District for the division of business among district judges, all cases related to this one filed in the Southern District were assigned to this Court. A stipulation of February 11, 1993, consolidated the Limitation Proceeding and all Cargo Proceedings.

 The Baroid Claimants attached the Trade Resolve upon her arrival in New Orleans on April 2, 1993, and both the Baroid Claimants and the PDVSA Claimants filed an action against the Trade Resolve in the Eastern District of Louisiana before the Honorable Edith Brown Clement (93 Civ. 1105). The PDVSA Claimants have moved in that court with respect to the validity of the forum selection clause in the Letter of Undertaking. The Trade Resolve Defendants have also moved in that court to dismiss for forum non conveniens pursuant to the forum selection clause. The Baroid claimants have also moved to transfer the New Orleans action to this court.

 The proceedings in this motion date back to November 11, 1992, when the Trade Resolve Defendants moved to dismiss this action on jurisdictional and forum non conveniens grounds. The Baroid Claimants cross-moved for leave to take discovery on December 7, 1992. Oral argument was heard on December 9, 1992, and this Court granted the Baroid Plaintiffs the right to jurisdictional discovery. During the pendency of this motion, the Baroid Claimants, joined by the PDVSA Claimants, attached the Trade Resolve when it ...


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