United States District Court, S.D. New York
Attorneys for Plaintiff BLANK ROME LLP, Jared Zola, Esq.,
James Carter, Esq.
Attorneys for Defendants BRUCKMANN & VICTORY, LLP Richard
J. Sprock, Esq., Robert Louttit, Esq., Mark Bruckmann, Esq.
W. SWEET, U.S. D. J.
QBE Marine & Specialty Syndicate 1036, Markel Syndicate
3000, Starr Insurance & Reinsurance Company, Munich
Reinsurance Company, Liberty Mutual Insurance Europe Limited,
and Catlin Insurance Company (UK) Limited (the
"Defendants") moved pursuant to Rule 56, F. R. Civ.
P. for summary judgment dismissing the complaint of plaintiff
Petroterminal de Panama, S.A. ("Petroterminal" or
the "Plaintiff"). Plaintiff simultaneously moved
for partial summary judgment for a determination that
Plaintiff has made a prima facie showing for all risk
coverage under the insurance policy. Based upon the findings
and conclusions set forth below, Plaintiff's motion for
partial summary judgment is granted, and Defendant's
motion for summary judgment is denied.
Plaintiff initiated this action on October 28, 2014 alleging
claims for breach of contract, specific performance, and
declaratory judgment for issues relating to whether certain
insurers are required to pay for damage caused by a fallen
pile. The instant motions for summary judgment were filed on
June 13, 2016 and were heard and marked fully submitted on
September 22, 2016.
facts have been set forth in the parties' stipulation of
undisputed facts as well as Plaintiff and Defendants'
Statements of Material Facts per Local Civil Rule 56.1, which
are not in dispute except as noted below.
stores and transports crude oil and petroleum products with
terminals on the Atlantic and Pacific coasts of Panama. Zola
Decl., Ex. 3, P. Ripp Dep. Tr. at 11:2-8, 27:24-28:13. This
case concerns Plaintiff's Pacific Terminal, which
includes Piers 1 and 2, both of which were used for loading
and unloading petroleum. Amended Stipulation of Undisputed
Facts, ¶ 3. Pier 2 contained four "breasting
dolphins" used for mooring and berthing operations.
Id. at ¶ 4. Each breasting dolphin consisted of
a steel pipe pile and a pivoting timber-faced fender panel.
Id. at ¶ 5.
piles were all installed in 1984 in order to increase the
pier's capacity to accommodate larger vessels and were
built with a larger diameter than the original piles.
Id. at ¶ 8. Each of the steel piles was
comprised of several sections that were attached to one
another using a circumferential weld. Id. at ¶
10. The outer breasting dolphins have an outside diameter of
1101/4 inches and the two inner breasting dolphins
have a diameter of 783/4 inches. Id. at
February 10, 2012, a hull oil tanker, the Maya, carrying 380,
742.87 GSV (US barrels) was being moored to Pier 2, using the
781/4 inch diameter steel pile of the southern
inner breasting dolphin pile ("Pile PDB-2AA"), when
Pile PDB-2AA fell over. Id. at ¶ 13, 15. Prior
to February 10, 2012, Pile PDB-2AA was standing and was being
used regularly to moor vessels to Pier 2. Id. at
¶ 14. At first, the pile came to rest against another
pile and was chained there. Id. at ¶ 15. After
the Maya was moved to Pier 1, the fallen pile segment was
unchained and allowed to fall and rest on the seabed.
Id. at ¶ 16.
undisputed that standard mooring procedures were followed on
February 10, 2012. Id. at ¶ 17. The parties
dispute the cause of why the pile fell on February 10, 2012.
A portion of the failed pile was retrieved, and the parties
agree that it failed at a point above the mudline.
Id. at ¶ 18-20.
parties stipulated that all four of the breasting dolphins at
Pier 2, including Pile PDB-2AA, are covered under the
insurance policy. Id. at ¶ 6. This policy was
in effect from January 15, 2012 through January 15, 2013.
Id. at ¶ 2. The insurance policy "insures
against all risks of physical loss or damage occurring during
the period of this policy from any cause . . . except as
hereinafter excluded." Zola Decl., Ex. 2, Ex. A at 00053
CANDL. However the policy excluded a number of potential
perils, including "gradual deterioration, corrosion (but
this policy does not exclude corrosion occurring from a
sudden and accidental event), inherent vice, . . ., ordinary
wear and tear, unless loss or damage by a peril not otherwise
excluded ensues and then the policy shall be liable for only
such ensuing or resulting loss or damage." Id.
at 00062 CANDL.