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In re M/V MSC Flaminia

United States District Court, S.D. New York

January 18, 2017


          OPINION & ORDER

          KATHERINE B. FORREST, District Judge:

         Before the Court is a motion for summary judgment in the complex maritime action concerning the explosion and fire aboard the M/V MSC FLAMINIA (“Flaminia”). How and why the explosion occurred, how it was handled, and who should be liable for any monetary loss, are among the issues being litigated in the primary action. The motion that is the subject of this Opinion & Order is brought by a third-party defendant, BDP International Inc. (“BDP”), seeking dismissal of negligence and contract claims asserted against it by Deltech Corporation (“Deltech”) and Stolt Tank Containers BV (“Stolt”). (See, e.g., ECF Nos. 532, 553, 636.)[1] Deltech was the shipper for Divinylbenzene (“DVB”) cargo, which some parties argue was a cause of the explosion. Deltech used Stolt to arrange for the transportation of the DVB; BDP had a contractual relationship with Stolt pursuant to which it was involved in the creation of an ocean bill of lading or sea waybill for the DVB; Deltech asserts that it was a third-party beneficiary of that contract. BDP is alleged by both Deltech and Stolt to have failed to ensure that proper stowage instructions for the DVB were included on the sea waybill.

         For the reasons set forth below, the Court concludes that there are triable issues of fact with regard to the breach of contract claim brought by Stolt; there are no triable issues, however, with regard to the causation element of the negligence claims. Accordingly, BDPs motion for summary judgment is GRANTED IN PART and DENIED IN PART.

         I. FACTS

         The following facts are undisputed unless otherwise noted.

         A. Facts Relating to the DVB Shipment

         In June 2012, Deltech contracted with Stolt as the non-vessel-owning common carrier (“NVOCC”) to arrange for shipment of three containers of DVB from Baton Rouge, Louisiana (via the Port of New Orleans) to Antwerp, Belgium aboard the Flaminia. The Flaminia is an ocean carrier chartered by Mediterranean Shipping Co. (“MSC) and operated by NSB NIEDERELBE SCHIFFAHRTSGESELLSCHAFT MBH & CO. kg (“NSB”). At the time of the events at issue, MSC was the charterer and carrier of the cargo on the Flaminia. (See BDP Rule 56.1 Statement of Material Facts (“BDP 56.1”) ¶¶ 1-4, ECF No. 900.)

         Deltech initiated this process by sending an initial booking request to Stolt on June 8, 2012; Stolt confirmed the booking three days later, on June 11, 2012. (BDP 56.1 ¶¶ 67-70.) Stolt used BDP to process certain documents associated with the ocean transport, including the ocean bill of lading. (See id ¶¶ 18, 45.) A bill of lading generally indicates the shipper and cosignee, the “notify” party (usually a destination customs broker), a description of the commodity to be transported, the routing of the cargo (ports of loading, transshipment, and discharge), the gross and net weight of the cargo, its cubic volume, the container number(s), the vessel name and voyage number undertaking the carriage, the date of sailing (“on board date”), and other information. Among the other information that can be included are stowage instructions. (See BDP 56.1 ¶ 9.)

         If dangerous goods are being transported, statute requires that a “dangerous goods transport” document be provided. A “Dangerous Goods Declaration” or “DGD” is one type of such document. (See id. ¶¶10-11.) BDP was not engaged to provide the DGD. (Id. ¶ 64.)

         Michael Herrara served as customer representative in the booking department of MSC in June and July 2012. (Id. ¶ 12.) Herrara testified that special instructions regarding stowage might be contained in a DGD or would be negotiated “at a higher level” when rates were negotiated. (Dec. of John A. V. Nicoletti Ex. 5 at 91:20-24, ECF No. 920-1.) Herrara also testified that that the Dangerous Goods Department in Antwerp reviews and approves requests to ship dangerous cargo. (BDP 56.1 ¶ 15.) In fact, DVB shipments could not be in-gated at the terminal without the dangerous goods declaration and approval by the Dangerous Goods Department in Antwerp. (Id. ¶ 17.)

         Herrara testified that upon receiving the dangerous goods declaration, he input the information “into the system, and the information would be the consignee, the UN number, the hazardous class, the packaging group, the proper shipping name, [and] the weights.” (BDP 56.1 ¶ 19.) Once the cargo is booked, “documentation” is dealt with in the Documentation Department. (Id. ¶ 23.)

         Mario Gonzalez served as the Manager of MSC's Export Department in June and July 2012. (Id. ¶ 24.) He testified that this department is in charge of preparing bills of lading for the ports of New Orleans in Louisiana. (Id. ¶ 25.) The department is not responsible for receiving DGDs. (Id. ¶ 30.) He further testified that his department first becomes involved with a shipment “[a]fter the container is loaded [at the customer facility] and all the information is available.” (Id ¶ 26.) Gonzalez testified that after receiving a master bill-of-lading instructions, the Export Documentation Department would assign a bill-of-lading number to the shipment “and then they will manifest the bill of lading.” (Id. ¶ 27.) After all of the “information is entered into the system, [they] will send a draft bill of lading to the customer for their review.” (Id. ¶ 28 (alteration in original).) After the vessel sails, the department sends a final bill of lading to the customer. (Id ¶ 29.)

         Dean Kutz is MSC's Director of Safety, Compliance and Security in the Hazardous Group. (Id. ¶ 36.) The Hazardous Group checks cargo. It does not have the bill of lading when it is reviewing and checking cargo. Hazardous cargo is stowed “in accordance with the requirements of the [relevant statutory code] based on the class and UN number provided by the shipper.” (Id ¶ 37.) Michael C. Deaton of MSC's Hazardous Group testified that when he is preparing a stowage plan, draft bills of lading are not available to him. (Id. ¶ 39.) He further testified that when he is preparing a stowage plan, he does not check bills of lading. (BDP 56.1 ¶ 40.)

         Dirk Vande Velde was a dangerous-goods manager at MSC in 2012. (Id ¶ 41.) He testified that the “dangerous goods declaration is the most important document in the whole transport world” and that “it is the only document that his department wants to see.” (Id ¶ 16.) He also testified that MSC considers all dangerous goods to be heat sensitive when it stows cargo. (Id ¶ 42.) While a warning that particular cargo was heat sensitive would raise a special concern for him, Vande Velde testified that special stowage instructions would nonetheless not be required. (Vande Velde Dep. at 295:15-296:22, ECF No. 766-1 at 77.)

         Vande Velde further testified that the procedure for dangerous cargo would require the placement of a “container in between” the cargo and any potential heat source regardless of whether MSC had received notice that it is heat sensitive, unless the cargo was stored in a closed container, which provides sufficient segregation. (Id at 296:8-297:9.) This testimony, along with MSC's Dangerous, Chemical and Critical Cargo Handling Procedures (Dec. of James W. Johnson Ex. 12, ECF No. 906-3), demonstrate no material factual difference between Deltech and MSCs policies regarding the storage of heat-sensitive cargo.

         TyTrinia Breaux served as the documentation coordinator for BDP during June and July 2012. (BDP 56.1 ¶ 44.) That department was responsible for processing bills of lading to send to carriers for Stolt. (See id ¶¶ 47, 51.) The final bill of lading from the carrier is referred to as a “master bill of lading.” (See id. ¶ 58.) The initial step in the creation of a master bill of lading is receipt of instructions from the Stolt customer. (BDP 56.1 ¶ 49.) Breaux testified that if there was a particular stowage instruction on a customer's shipping instruction, it would be manually entered into BDP's system. (Id. ¶ 53.) Once all of the information is entered into the BDP system, the draft bill of lading would be sent to the carrier. (Id. ¶ 55) Here, that was to MSC. Breaux testified that neither she nor anyone else at BDP to her knowledge had any role in preparing the DGD, and she does not receive a copy of the DGD. (Id. ¶ 64) In connection with the DVB shipment at issue in this lawsuit, Breaux testified that she received initial shipping instructions from Deltechs freight forwarder, Panalpina. (Id. ¶¶ 85-86) Those instructions stated “DO NOT STOW NEAR HEAT SOURCES. STOW ABOVE DECK FOR TEMPERATURE MONITORING.” (See id. ΒΆ 91) She input ...

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