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APL Co. Pte. Ltd. v. Kemira Water Solutions, Inc.

United States District Court, S.D. New York

February 25, 2014

APL CO. PTE. LTD., THE BRITANNIA STEAM SHIP INSURANCE ASSOCIATION LIMITED, THE WEST OF ENGLAND SHIP OWNERS MUTUAL INSURANCE ASSOCIATION (LUXEMBOURG), Plaintiffs,
v.
KEMIRA WATER SOLUTIONS, INC., (formerly known as " Kemiron Companies" ), FAIRYLAND ENVITECH CO. LTD., Defendants

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For APL CO.PTE.LTD, The Britannia Steam Ship Insurance Association Limited, The West of England Ship Owners Mutual Insurance Association (Luxembourg), Plaintiffs: Charles S. Donovan, LEAD ATTORNEY, PRO HAC VICE, Brenna E. Moorhead, Brian R. Blackman, Theodore Carl Lindquist, III, Sheppard Mullin Richter & Hampton LLP, San Francisco, CA; Lisa M. Lewis, Sheppard, Mullin, Richter & Hampton, LLP (NYC), New York, NY; Sarah Elizabeth Aberg, Sheppard Mullin Richter & Hampton, LLP, New York, NY.

For Kemira Water Solutions, Inc, formerly known as Kemiron Companies, Defendant: Matthew Todd Loesberg, LEAD ATTORNEY, McDermott & Radzik, LLP, New York, NY; Stanley Lee Gibson, LEAD ATTORNEY, PRO HAC VICE, Gibson Robb & Lindh LLP, San Francisco, CA; Daniel Gerard McDermott, Marshall, Dennehey, Warner, Coleman & Goggin, New York, NY; Marisa Gale Huber, Gibson Robb Lindh, San Francisco, CA.

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OPINION & ORDER

KATHERINE B. FORREST, United States District Judge.

This case arises from two shipments of ferrous chloride crystals sent from Taiwan to California that, simply put, did not go as planned. The bags in which the crystals were originally packaged leaked as a result of improper packaging at some point between their departure from Taiwan and their arrival in California. The result was contamination of the containers in which the bags were stored and of the ships that transported the containers, as well as at the ports where the containers were discharged. Cleanup and response efforts ultimately lasted more than seven months and were fraught with unexpected delays and setbacks along the way--both on-site at the ports and back at the corporate offices of the companies involved.

In the end, the bill for these efforts totaled more than five million dollars. Plaintiffs, APL Co. Pte. Ltd. (" APL" ) and its insurers,[1] footed that bill--APL was the carrier of the ferrous chloride cargo. Though this case has been narrowed considerably since its inception,[2] the fundamental question now before the Court is whether defendant Kemira Water Solutions, Inc. (" Kemira" ),[3] the end purchaser and consignee of the ferrous chloride, must bear the brunt of the joint and several liability provisions of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (" CERCLA" ), 42 U.S.C. § § 9601, et seq., for the cleanup and response costs incurred by APL. Kemira entered into an agreement with Fairyland Envitech Co. Ltd. (" Fairyland" ), a Taiwanese company, to purchase the ferrous chloride crystal; in that agreement, Kemira specified the use of bulk bags to transport the material. The bags that were then chosen and ultimately used by Fairyland to transport the material leaked, and a parade of horribles ensured. Fairyland, for its part, was and is nowhere to be found.

This Court finds that Kemira is liable under CERCLA for cleanup costs.

Plaintiffs brought this admiralty and maritime action, pursuant to 28 U.S.C. § 1333, in the Northern District of California on August 27, 2009 against defendants Kemira and Fairyland for breach of contract, negligence, and recovery under CERCLA related to the cleanup and response costs they incurred as a result of the two shipments. This action was transferred to the Southern District of New York on March 11, 2011 and transferred to the undersigned on November 8, 2011.

After the parties cross-moved for summary judgment, on August 22, 2012, this Court granted Kemira summary judgment on APL's breach of contract and negligence claims. (SJ Decision at 16, 24-25, ECF No. 96.) The Court declined to grant summary judgment for Kemira on

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APL's CERCLA claim. (Id. at 22.) In doing so, the Court held that (1) the bags in which the ferrous chloride crystals were packaged and shipped are " facilities" under 42 U.S.C. § 9601(9)(B); and (2) Kemira is a " potentially responsible party" (or " PRP" ) because it was an " operator," under 42 U.S.C. § 9607(a)(2), and not the " shipper" under 42 U.S.C. § 9601(20)(B). (Id. at 17, 22.)[4] Accordingly, at the June 3, 2013 final pretrial conference, the Court made clear that the limited issues for trial were the scope of damages and the potential divisibility of such damages under 42 U.S.C. § 9607(a). (See 6/3/13 Tr. at 31, ECF No. 122; 6/4/13 Order ¶ 2, ECF No. 121.)

On August 26-28, 2013, the Court held a bench trial in this matter.[5] The following individuals[6] testified on behalf of APL: Dale Strieter, Technical Service Manager for Patriot Environmental Services (" Patriot" ), Walt Dorn, Director of Emergency Services for Patriot, Haldis Fearn, Director of Hazardous Materials for the Americas for APL, Curtis Shaw, Director of Safety for APL, Mark Peterson, Manager of Insurance and Claims for APL, and Michael Bohlman, APL's proposed expert witness concerning the custom and practice in the steamship industry as to ensuring proper cargo packaging and the opening of cargo containers prior to transport. The following individuals testified on behalf of Kemira: Jerome Fahey, Vice President of Procurement at Kemira, Jan Pavlicek, Technical Product and Applications Manager at Kemira, Robert J. Ten Eyck, Kemira's proposed expert as to the bulk bags containing the ferrous chloride crystals, and Dr. Jeffrey V. Dagdigian, Kemira's proposed expert as to the adequacy and reasonableness of the cleanup and response efforts for both shipments of ferrous chloride under CERCLA.

The parties also submitted deposition designations for eight witnesses in lieu of live testimony[7]: Melvin Blaine, Operations Manager at Kemira's facility in Fontana, California, William F. Sheridan, Director of Network Operations in the Western Region for APL, Shannon Mizell, Dangerous Goods Specialist at APL, Diane Terrien, Senior Manager of Documentation at APL, Robert Wetzel, General Manager at Transloading Environmental Corporation (" TEC" ), Eri Soto, a TEC foreman, Robert Wolters, Operations Superintendant at

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California United Terminals (" CUT" ), and John Chiu, Owner of FTS International Express.

This Opinion constitutes this Court's findings of fact and conclusions of law in this matter. As set forth below, this Court finds that plaintiffs are entitled to judgment on their CERCLA claim under 42 U.S.C. § 9607(a). The Court finds that the expenses incurred by APL were both necessary and incurred for cleanup and response efforts that were substantially consistent with the National Contingency Plan (" NCP" ). The Court also finds that Kemira has failed to meet its burden of showing that any portion of the costs for which it is solely responsible are divisible.

FINDINGS OF FACT

A. The Parties

1. APL is a global transportation and logistics company providing, among other services, container transportation services. APL was the carrier of the two ferrous chloride crystal shipments aboard the M/V HYUNDAI INDEPENDENCE (" Hyundai Independence" ) and the M/V APL SINGAPORE (" APL Singapore" ) in the fall of 2006 that are at issue in this litigation. (See SF ¶ ¶ 2, 15.)

2. Kemira is a company that sells water treatment chemicals. Kemira was the consignee and importer of the ferrous chloride into the United States and arranged for its clearance through U.S. Customs. (See SJ Decision at 1; SF ¶ 4; Chiu Dep. at 11-12, 20-21, 26-28; JX19.)

3. At the time of the events alleged in the complaint, Fairyland was a Taiwanese chemical supplier. Fairyland was the supplier of the two shipments of ferrous chloride at issue. Fairyland has ceased all business and operations, and cannot be located. As a result, according to the docket, Fairyland does not appear to have been served with the complaint. (See SF ¶ 3; SJ Decision at 1, 2 n.1.)

B. Background on Ferrous Chloride Crystal

4. Ferrous chloride crystal (also referred to as " FeCl2 crystal" ) is a salt that is highly hygroscopic, which means that it attracts liquid and is prone to liquefaction when exposed to moisture. When ferrous chloride crystal liquefies, it is aggressively corrosive to most metals. (See Strieter Decl. ¶ 19; Trial Tr. at 76-78 (Strieter); JX12 at 1.)

5. Ferrous chloride crystal is a hazardous chemical classified as " Class 8: Corrosive" under the International Maritime Dangerous Goods (" IMDG" ) Code promulgated by the International Maritime Organization of the United Nations. (See SF ¶ 14.)

6. In this case, Kemira purchased the ferrous chloride crystals from Fairyland to be sold to municipal and industrial entities for use as a water treatment product. These entities use ferrous chloride to remediate sewer odor (by neutralizing hydrogen sulfide) and to remove phosphorous at their wastewater plants. (See SF ¶ 9; Trial Tr. at 326 (Fahey), 363 (Pavlicek).)

C. The Fairyland-Kemira Purchase Agreement

7. On August 3, 2006, Kemira and Fairyland entered into a purchase agreement pursuant to which Kemira agreed to purchase ferrous chloride crystal from Fairyland, and Fairyland agreed to ship the chemical from Taiwan to California (the " Purchase Agreement" ). The Purchase Agreement confirmed the product and price provisions for the sale of the ferrous chloride crystal. (See SJ Decision at 2; SF ¶ 12; JX6 at 1-2.)

8. The Purchase Agreement set forth the terms of sale as " DDP" or " delivery duty paid" by Fairyland to Kemira's plant in Fontana, California. (See SF ¶ 12.)

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9. Schedule A of the Purchase Agreement set forth the " General Requirements" for packaging the ferrous chloride. In it, Kemira directs Fairyland that the ferrous chloride crystal shall:

1. Be shipped in bottom unloading 1 metric ton net weight bulk bags with four loops capable of suspending the entire bag.
2. The bulk bags will be shipped in such a manner to assure that all material arrives at destination with sacks intact and without material leakage.
3. The bulk bags shall be impermeable to water.
4. The bulk bags shall be loaded into the container such that they will be able to be unloaded via forklift trucks or via pallet jacks of U.S. specifications.
5. Material quality will be consistent throughout the shipment and within the bulk bags with respect to stated specifications.
6. Quantities of material in the bulk bags will be consistent throughout the shipment and net weight will be greater than 1 MT less than 1.2MT.
7. All bulk bags and sea containers will be marked with information appropriate for meeting all regulatory requirements of the United States of America and the States of California, Missouri and Indiana.

(See SJ Decision at 2, 18-19; SF ¶ 13; JX6 at 3.)

10. The shipments of ferrous chloride crystal that APL carried aboard the Hyundai Independence and the APL Singapore were purchased by Kemira from Fairyland pursuant to this Purchase Agreement. (See SF ¶ ¶ 11-13, 15.)

D. Shipment #1--The Hyundai Independence

11. APL carried the two shipments of ferrous chloride under two separate bills of lading. The first shipment, under Non-Negotiable Sea Waybill No. APLU 451382861, dated September 30, 2006, was carried aboard the Hyundai Independence pursuant to a slot sharing agreement. The second shipment, under Non-Negotiable Sea Waybill No. APLU 401403279, dated October 17, 2006, was carried aboard the APL Singapore. (See SF ¶ 15.)

12. A Dangerous Goods Declaration is a required document provided by the shipper when it tenders containers for transport, and which must accompany every shipment of hazardous materials. Carriers are required to receive a Dangerous Goods Declaration prior to accepting such goods and may rely on them unless there are obvious discrepancies in the paperwork or obvious issues with the containers themselves. (See Fearn Decl. ¶ 17; Bohlman Decl. ¶ 6.)

13. According to Haldis Fearn, APL's Director of Hazardous Materials for the Americas, APL relies on Dangerous Goods Declarations when deciding whether to accept and load a shipment. APL will not receive, load, or transport hazardous materials without a properly completed and certified Dangerous Goods Declaration. (See Fearn Decl. ¶ ¶ 17-18.)

14. As Director of Hazardous Materials, a position she assumed in 1991, Fearn was responsible for the department that oversaw the movement of hazardous materials by APL both domestically and internationally. Fearn's department was charged with, inter alia, the review and approval of Dangerous Goods Declarations and responding to emergency situations involving hazardous materials. Fearn has nineteen years experience managing and responding to incidents involving hazardous materials, at a rate of approximately 85 to 100 such incidents a year. (See Fearn Decl. ¶ ¶ 1, 9, 12-13, 17; JX11; Trial Tr. at 192 (Fearn).) Though the Court found Fearn to be credible, it also found

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her to be confused at times during her testimony.

15. Fairyland signed the Dangerous Goods Declaration for the cargo shipped on board the Hyundai Independence (the " Hyundai Declaration" ), and submitted it to APL. The Hyundai Declaration states the dangerous substance being shipped (" Corrosive Solid, NOS (Ferrous Chloride Crystal)" ), the UN identification number (" 1759" ), the Class (" 8" ), the Packing Group (" II" ), and the specific type of packaging used for the identified substance (" UN13H3 (IN 220 PALLET) (412 BAGS)" ). This meant that the Hyundai Independence was carrying 22 containers of ferrous chloride crystal shipped in 412 separate bags. (See SF ¶ ¶ 16-17; JX7 at 1; Strieter Decl. ¶ 19; Fearn Decl. ¶ ¶ 18-19.)

16. In the Hyundai Declaration, Fairyland provided certifications to APL as to the packaging of the ferrous chloride aboard the Hyundai Independence. Fairyland certified that the ferrous chloride had been packed and loaded into the containers in accordance with the IMDG Code. Fairyland also declared " that the contents of this consignment are fully and accurately described below by the proper shipping name, and are classified, packaged, marked and labeled/placarded and are in all respects in proper condition for transport according to the applicable international and national government regulations." (See SF ¶ 19; JX7 at 1.)

17. The Court finds that the Hyundai Declaration contains all of the required information and does not contain any obvious inaccuracies. According to Fearn, there is nothing in the Hyundai Declaration that would have caused APL to refuse the shipment or open the containers for further inspection. Fearn believes the Hyundai Declaration was properly approved by her department, and the Court agrees. (See Fearn Decl. ¶ 19; Bohlman Decl. ¶ 6; Ten Eyck Decl. ¶ ¶ 11-13.)

E. Leakage Aboard the Hyundai Independence

18. On Friday, October 13, 2006, Dale Strieter received a call to Patriot's 1-800 emergency response number from a representative of CUT. CUT asked Patriot to dispatch a team to assess and respond to three leaking containers that had been discharged from the Hyundai Independence, and which were placarded as Corrosive 8, UN No. 1759. From this information, Strieter understood that the containers likely contained a corrosive hazardous material. When Strieter arrived at CUT later that day, he observed this same placarding on the containers. (See Strieter Decl. ¶ 18; PX73 at 4.)[8]

19. Patriot is an environmental contractor that has extensive experience with hazardous material cleanup and response operations at the ports of Long Beach and Los Angeles, California. It has handled and continues to handle operations for almost every commercial terminal at those ports, including the two terminals at issue in this case--CUT and Global Gateway South (" GGS" ).[9] Prior to the incidents in this case, Patriot had handled approximately 40 to 50 separate cleanup and response operations for APL. (See Strieter Decl. ¶ 5.)

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20. Similarly, for Strieter, October 13, 2006 was not his first time answering the proverbial " red phone." Strieter was a Technical Service Manager for Patriot, a position he has held since the company was founded in 2002. He has more than 33 years in the environmental services business under his belt. In his role at Patriot, Strieter was generally responsible for initial response operations, documentation, and interfacing with regulatory agencies (like the United States Coast Guard (" USCG" )), for spills and other environmental threat responses. Prior to the events at issue, Strieter had worked on four to five incidents involving ferrous chloride crystals (though not in as large quantities). (See Strieter Decl. ¶ ¶ 1, 6, 14; Trial Tr. 38, 44 (Strieter).) The Court found Strieter to be a credible and serious witness.

21. Upon his arrival at CUT, Strieter requested and received from CUT personnel a copy of the Hyundai Declaration. He learned from the Declaration that the Hyundai Independence was carrying 22 containers of ferrous chloride crystal shipped in 412 separate bags. Strieter also learned, after consulting a reference guide, that ferrous chloride is extremely hygroscopic and is aggressively corrosive to most metals when in liquid form. (See Strieter ¶ 19; JX7 at 1.)

22. After reviewing this information, Strieter determined that the ferrous chloride did not pose a major health hazard for the kind of cleanup and response work that needed to be performed at that stage (although there was a serious threat from direct physical contact with the hazardous material) and that Patriot would be able to get close to the material without it posing a threat to worker safety. (See Strieter Decl. ¶ 20.)

23. Prior to Strieter's arrival at CUT, CUT personnel had discharged four or five leaking containers and placed them on a standard 24-foot chassis. Strieter observed these containers, and the leakage was readily apparent--brown liquid was leaking from some of the containers, while others were streaked with brown liquid running down their sides. According to Strieter, the liquid appeared more viscous than water but less so than molasses, and did not have an odor. (See Strieter Decl. ¶ 21; PX73 at 3-4.)

24. Strieter observed the corrosive effect of the ferrous chloride on the unpainted, exposed metal on the containers. Strieter performed a pH test on the liquid; it tested at a pH of 1-1.5, which confirmed that the liquid was highly acidic and corrosive. (See Strieter Decl. ¶ 21; JX12 at 1; JX26 at 1.)

25. Strieter accompanied other Patriot and CUT personnel to assess Bay 35--the bay on the Hyundai Independence from which the leaking containers had been previously discharged. They determined that an additional eighteen containers (nine of which actually contained ferrous chloride crystal) in Bay 35 were contaminated. Strieter also determined that twenty other containers had been previously discharged from the Hyundai Independence and had been moved into the terminal. Thirteen of those containers were actively leaking ferrous chloride, while the others were " victim" containers--containers that had been impacted by the leaking ferrous chloride liquid. (See Strieter Decl. ¶ ¶ 23-24.)

26. Patriot and CUT personnel moved all leaking and victim containers to the " 5000" area of the CUT terminal and enveloped them in plastic, in advance of rain that was expected that night. They decontaminated and cleaned the asphalt on the CUT terminal where the contaminated containers had been, and tested the cleaned area using pH paper test. (See Strieter Decl. ¶ 24.)

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27. The USCG sent representatives from two different sections (the pollution section and the container section) to assess the incident that day, October 13, 2006.[10] Strieter interfaced with them while they were on-site about the threat posed to worker safety by the spill as well as the appropriate initial response. According to Strieter, the USCG was heavily involved in and oversaw the cleanup and response process. In addition to on-site observation, Patriot provided the USCG with detailed oral briefings as to their cleanup and response efforts.[11] During the course of Patriot's cleanup and response efforts, for both the Hyundai Independence and later for the APL Singapore, Patriot never once received an objection from the USCG as to their methods or work. (See Strieter Decl. ¶ ¶ 14-15, 25; Trial Tr. at 81 (Strieter).)

28. A " Captain of the Port Order" is a directive used by the USCG to ensure steps are taken in an expeditious manner to meet safety, security, and environmental mandates within the USCG's purview. A party that fails to meet the requirements of a Captain of the Port Order runs the risk that the USCG may assume complete command of the cleanup and response, and thus charge the responsible party or parties for those costs (which are often very high). A Captain of the Port Order also means that the USCG will be heavily involved in the cleanup and response process at the regulated facility and will require USCG approval of the steps the party intends to take in cleaning up and responding to a release. Once a cleanup response is completed, it is up to the USCG to assess whether a party has complied with the Captain of the Port Order and has met all other legal and regulatory requirements. At that point, the Captain of the Port Order is said to be " lifted." (See Shaw Decl. ¶ 7.)

29. On October 13, 2006, the USCG issued Captain of the Port Order 2006-502 to CUT in connection with the leaking ferrous chloride aboard the Hyundai Independence. The Order directed CUT to move all contaminated containers to a safe and secure location at least 75 feet from the water, and to submit a detailed plan for repairing, cleaning, and transporting each affected container on the Hyundai Independence and at the port. The Order required USCG approval for transport of any affected containers. Finally, the Order set forth the monetary penalties for violations of the Order under the Ports and Waterways Safety Act, 33 U.S.C. § § 1221 et seq. (See JX9 at 1; Strieter Decl. ¶ 26; Dorn Decl. ¶ 18; Fearn Decl. ¶ 26.)

30. APL received notice from CUT that the ferrous chloride crystal shipment aboard the Hyundai Independence had arrived at its terminal in Long Beach, and that the contents of the containers were leaking and had spilled along the outside walls of containers. CUT informed APL that it would hold APL responsible for all costs associated with the incident. (See SF ¶ 20; Fearn Decl. ¶ ¶ 15-16; JX11; JX14.)

31. Haldis Fearn was the person at APL who received this notification, and who was tasked with overseeing and managing

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APL's response. Upon receiving this notification, APL thereafter assumed responsibility for responding to the Hyundai Independence incident. (See Fearn Decl. ¶ 16.)

32. Upon learning of the leaking ferrous chloride aboard the Hyundai Independence, Fearn left a message for the emergency contact at Fairyland at the number listed on the Hyundai Declaration. (See Fearn Decl. ¶ 20; JX7; Trial Tr. at 233 (Fearn).)

33. Fearn then called Kemira. She informed the person with whom she spoke of the leaking ferrous chloride aboard the Hyundai Independence, that she had been unable to get in touch with anyone from Fairyland, and that APL had brought in a spill response team. Fearn also indicated that APL would hold Kemira responsible for the cleanup and response costs if Fairyland did not step up and pay them. (See Fearn Decl. ¶ 21; JX10 at 1; PX17.)

34. In the internal Kemira email memorializing this notification by Fearn, Mel Blaine[12] raises the issue of obtaining a California Department of Transportation (" DOT" )[13] exemption in order to move the ferrous chloride to its facility in Fontana, California. Blaine states: " We have to get an exemption from DOT in order to move the crystal to Fontana. They say that we cannot ship fecl2 crystal in supersacks. Please get in touch with Vanessa [Tsai, of Fairyland]. We need help." Jerome Fahey[14] responded to Blaine's email by copying Tsai to notify her of the leak. (See Fahey Decl. ¶ ¶ 6-7; Blaine Dep. at 92-94; PX17.)

35. Fearn next established contact with Patriot (who had already been brought in by CUT) and approved them as the lead response contractor for the assessment and cleanup. Because of the need to clean the vessel and the victim containers so that the vessel could leave on schedule, Fearn also contacted Robert Wetzel at TEC and requested that TEC assist Patriot with the response. (See Fearn Decl. ¶ ¶ 23-24; Strieter Decl. ¶ 27.)

36. TEC was another environmental contractor with extensive experience conducting clean-up and response operations. TEC had worked in this capacity for APL approximately one hundred times in the ten to fifteen years prior to these incidents, though there is no evidence in the record that this work involved ferrous chloride (and certainly not in the quantities involved here). No representatives of TEC testified at trial; instead, the parties submitted deposition designations for two individuals from TEC: General Manager Robert Wetzel and foreman Eri Soto. (See Wetzel Dep. at 12, 15-18; Soto Dep. at 5-6.)

37. The next day, October 14, 2006, Patriot discharged the eighteen remaining victim containers in Bay 35 of the Hyundai Independence, as well as twenty-four additional victim containers on the bottom rows of Bays 30 and 33. During discharge from the vessel and transport of the containers, Patriot draped 6 millimeter PVC plastic sheeting over the vessel's hatches, along the side of the vessel, and over the " bomb carts" used to transport the containers into the 5000 area of the CUT

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terminal. (See Strieter Decl. ¶ ¶ 28-29; Dorn Decl. ¶ 14; JX12 at 2; PX73 at 1-4).

38. Walt Dorn, Director of Emergency Services for Patriot since 2002, supervised the operations. Dorn has more than 20 years of experience with environmental cleanup and response efforts, both on water and land, all over the world. (See Dorn Decl. ¶ ¶ 1, 3, 13; Trial Tr. at 148 (Dorn).) The Court found Dorn to be highly experienced and credible.

39. Following the discharge of the contaminated containers, Patriot discovered that the ferrous chloride liquid had leaked into the ship's rainwater collection bilges. These bilges needed to be decontaminated and cleaned before the Hyundai Independence could be released back into service; according to Dorn, this was a " structural integrity issue" for the ship because the ferrous chloride liquid was attacking the ship itself. The USCG, which remained on-site on a daily basis, directed the order of priority for these tasks--the tasks set forth in Captain of the Port Order 2006-502. Strieter reported these developments to Fearn at APL. Based on a report Strieter prepared to CUT describing these initial response activities, he believes Patriot finished discharging the containers from the Hyundai Independence around 11:45 p.m. that night. (See Strieter Decl. ¶ 30; Dorn Decl. ¶ 15; Trial Tr. at 141-43 (Dorn); JX12 at 2; PX73 at 5-9.)

40. On Sunday, October 15, 2006, Dorn supervised the construction of a temporary wet wash area to decontaminate and clean the victim containers that needed to be reloaded onto the Hyundai Independence before its departure. Patriot constructed a temporary rather than permanent containment area due to time constraints, space constraints at CUT, and conversations with the USCG regarding the priority of operations. The area was a 50 foot by 30 foot temporary containment area constructed out of 10 millimeter visqueen plastic and industrial rug as padding. Patriot used the terminal lift to raise the containers one at a time, and used a sodium bicarbonate solution to rinse and clean the containers. After Patriot finished this process, the USCG inspected the containers and released them for reloading aboard the Hyundai Independence. The decontamination and cleaning residue was collected and pumped into poly drums for disposal. (See Dorn Decl. ¶ 16; Strieter Decl. ¶ ¶ 31-32; Trial Tr. at 100-101 (Strieter), 145 (Dorn); JX12 at 2.)

41. APL also brought in a team from TEC to assist with cleaning the rainwater collection bilges in Bay 35 of the Hyundai Independence that day. Patriot worked alongside TEC to decontaminate the floors in Bays 35, 33 and 30, as well as other portions of Bay 35, using a sodium bicarbonate and water solution. Patriot then pressure washed these areas with a cold water washer. Strieter reported on the status of the cleaning process to Fearn at some point that day. (See Strieter Decl. ¶ 31; Fearn Decl. ¶ 29; JX10 at 2; PX73 at 10-16.)

42. Once the cleaning of the bilges and vessel were complete, Strieter conducted pH paper testing and confirmed the cleanliness and decontamination of the affected areas. The vessel was then released back into service by the USCG. (See Strieter Decl. ¶ 34; JX26 at 2.)

43. USCG representatives remained on-site during each day of the initial response to the leaking containers from the Hyundai Independence, and they did not raise any objections as to Patriot's work or process. In particular, according to Dorn, the USCG never raised any issues as to the location of the temporary containment area on the CUT terminal in terms of its proximity to the water (i.e., that the containers were to be at least 75 feet from the water per Captain of the Port Order 2006-502).[15]

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(See Strieter Decl. ¶ 37; Trial Tr. at 139 (Dorn).)

44. On or about October 16, 2006, Fearn called and spoke with Mel Blaine from Kemira. Fearn told Blaine that the response and cleanup operations were ongoing and that the containers had been fully discharged from the Hyundai Independence. Fearn had still not heard from Fairyland. Fearn called Blaine a second time that day to request the Material Safety Data Sheet (" MSDS" ) for the product Kemira had imported; Blaine did not have a copy and gave Fearn the number of someone in Kemira's East Coast offices. Fearn called that number and spoke with someone about the MSDS; this person, who said he was a Vice President, told Fearn that he would get her one. Fearn also recalls that this person told her the shipment was a door-to-door delivery, Kemira did not own the cargo, and APL would need to go back to Fairyland on this. Fearn does not recall ever receiving an MSDS from Kemira. (See Fearn Decl. ¶ 25; Trial Tr. at 234-35 (Fearn).)

45. Fearn was finally able to speak with Vanessa Tsai of Fairyland on or about October 17, 2006. Fearn informed Tsai of the leaking containers and the ongoing containment and cleanup operations at CUT. Based on this conversation, Fearn's understanding was that Fairyland would take full responsibility for the costs of the cleanup. (See Fearn Decl. ¶ 30.)

46. Following completion of the initial temporary containment, Dorn took over as the lead project manager for Patriot to manage the longer term cleanup and response operations (though Strieter remained involved). (See Dorn Decl. ¶ 17; Strieter Decl. ¶ 38.)

47. Patriot's first step was to work with CUT and the USCG to locate an appropriate site at CUT for the containment structure. Once a site was located and approved by the USCG, Patriot pre-cleaned it and began construction. Patriot rolled out absorbent rug material on the asphalt and covered the rug with 60 millimeter plastic. Patriot then placed another absorbent rug on top of the plastic as a friction barrier, and placed a multi-layered plywood landing surface on top. Patriot placed more absorbent rug material in specific areas on top of the landing area where the leaking containers were placed, and built up the edges of the containment area to prevent the release of any material. Once the leaking containers were in containment, Patriot removed and disposed of the liners from the bomb carts and cleaned the bomb carts in the wet decontamination area. Patriot also decontaminated and cleaned the area where the containers had been placed in temporary containment. (See Dorn Decl. ¶ 20; Strieter Decl. ¶ 41; PX74 at 19-34.)

48. The containers of ferrous chloride continued to leak while in containment. (See Dorn Decl. ΒΆ 21; Strieter ...


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