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In re M/V MSC Flaminia

United States District Court, S.D. New York

April 22, 2015

IN RE M/V MSC FLAMINIA This document relates to: All Actions.

John A.V. Nicoletti, Esq., Nicoletti Hornig & Sweeney, New York, NY, for Cross-claim Plaintiffs.

Robert W. Littleton, Esq., Dennis J. Dozis, Esq., Littleton Joyce Ughetta Park & Kelly LLP, New York, NY, for Cross-claim Defendant BASF SE.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Stolt Tank Containers BV and Stolt-Nielsen USA, Inc. (hereinafter collectively, "Stolt") brings this action against BASF SE, amongst others, seeking contribution, indemnification, and a determination of direct liability. BASF SE now moves to dismiss all claims for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2), insufficient process pursuant to Rule 12(b)(4), and insufficient service of process pursuant to Rule 12(b)(5). For the reasons set forth below, BASF SE's motion is GRANTED and the claims are dismissed.

II. BACKGROUND

A. Facts

This action arises out of a July 2012 fire aboard the M/V MSC Flaminia while the vessel was crossing the Atlantic Ocean during its voyage from Louisiana to Germany. The owner and operator of the vessel jointly filed a Complaint for Exoneration from or Limitation of Liability (the "Limitation Action") and subsequently filed cross-claims against Stolt, alleging that Stolt produced, shipped, owned, sold, and/or bought a chemical that was responsible for the explosion and fire that occurred and all of the resulting damage and losses. In July 2014, Stolt filed cross-claims against BASF SE, a European chemical company based in Germany, and BASF Corp., its North American affiliate based in New Jersey. The claims sounded in contribution, indemnification, and direct liability, alleging that a chemical that BASF SE purchased from BASF Corp. was stored aboard the vessel in the same hold as Stolt's chemical-where the fire purportedly originated-and that BASF's chemical caused or contributed to the fire and/or explosion aboard the ship.

1. Stolt (Cross-claim Plaintiffs)

Stolt Tank Containers BV and Stolt-Nielsen USA are corporations that store and distribute large quantities of liquids. Stolt Tank Containers BV is incorporated in The Netherlands with its principal place of business in Rotterdam, The Netherlands.[1] Stolt-Nielsen USA Inc. is a Delaware corporation with a place of business in Norwalk, Connecticut.[2]

2. BASF SE and BASF Corp. (Cross-claim Defendants)

BASF SE is a world leader in the production and distribution of chemicals.[3] BASF SE is a publicly traded German corporation with its principal place of business in Ludwigshafen, Germany.[4] Stolt claims that BASF SE maintains several bank accounts in New York, that BASF SE derives a substantial amount of revenue in sales to New York entities, and that BASF SE's American Depository Receipts are available for purchase in New York.[5] As discussed further below, Stolt also asserts that BASF Corp.'s New York contacts can be imputed to BASF SE under an agency theory.[6]

BASF Corp., the largest affiliate of BASF SE, produces and markets chemicals in North America.[7] BASF Corp. is a Delaware corporation with its principal place of business in Florham Park, New Jersey.[8] The company has three offices in New York with at least one hundred employees each.[9]

Stolt asserts that BASF Corp. is BASF SE's domestic subsidiary, that the entities have "an ongoing business and/or contractual relationship, [10] and that BASF Corp. regularly loans BASF SE money.[11] Stolt further claims that BASF SE would likely need to establish ...


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