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In re M/V MSC Flaminia

United States District Court, S.D. New York

November 17, 2017

IN RE M/V MSC FLAMINIA

          OPINION & ORDER

          KATHERINE B. FORREST UNITED STATES DISTRICT JUDGE.

         On July 14, 2012, the M/V MSC FLAMINIA (the “Flaminia”) was crossing the Atlantic Ocean bound for Antwerp, Belgium. The vessel had departed from New Orleans, Louisiana fourteen days earlier and it was loaded with cargo. Early that morning, alarms began to sound, followed shortly thereafter by an explosion. Three members of the crew were killed, thousands of container cargos were destroyed, and the vessel was seriously damaged. A number of lawsuits followed, seeking compensation for death, bodily injury, loss of cargo, and damage to the vessel. Many of the original claims have been settled, including those alleging wrongful death and bodily injury. What remains are a host of claims relating to cargo losses and vessel damage.

         The Court has split the trial into three phases: a trial on causation in “Phase 1, ” to be followed by trials establishing fault and damages. The Phase 1 bench trial was conducted from September 11, 2017 through September 19, 2017, with closing arguments on September 26, 2017.

         At trial, three sets of parties presented related but materially different theories of causation. All agree that the explosion occurred as a result of runaway auto-polymerization of 80% grade divinylbenzene (“DVB80”)[1] that was contained in ISO containers[2] aboard the Flaminia. The manufacturer and shipper of that cargo, Deltech Corporation (“Deltech”) and Stolt Tank Containers B.V. (“Stolt”), respectively, assert that runaway auto-polymerization would not have occurred absent the storage conditions on the dock at the New Orleans Terminal (“NOT”) (where the DVB80 was stored before being loaded onto the ship) and aboard the vessel. In contrast, Container Schiffahrts-GMBH & Co. KG MSC “FLAMINIA” and NSB Niederelbe Schiffahrtsgesellschaft MBH & Co. KG (together, “Conti”), which owned and operated the Flaminia, and MSC Mediterranean Shipping Company, S.A. (“MSC”), the time-charterer, assert that the cause of the auto-polymerization was Deltech's failure to deliver fully oxygenated DVB80 to the dock at NOT. The last party that presented a causation theory was Chemtura Corporation (“Chemtura”), a shipper of another chemical contained in cargo aboard the vessel, diphenylamine (“DPA”). Chemtura argued that in all events, the DPA was not a substantial factor contributing to the conditions that caused the explosion.

         The parties have spent an enormous amount of time litigating this case. The discovery was, by any measure, extensive. Each group of parties retained experts, resulting in a classic “battle of the experts.” The Court carefully studied the experts' work, listened to their testimony, and poked and prodded them with questions. According to the Stolt/Deltech experts, the DVB80 was fully oxygenated and only excessive heat conditions caused the auto-polymerization. The Conti/MSC experts argue the opposite.

         It is clear that neither the experts nor the Court will ever be absolutely certain as to what caused the DVB80 to auto-polymerize and what ignited the explosion. But this is a civil case-one in which the standard of proof is not certainty, but a “preponderance of the evidence.” Based on that standard, the Court finds that that the DVB80 was delivered to NOT in an appropriately oxygenated state. However, the choice of NOT as the port of embarkation was a fatal one. Together, the extended, stagnant storage under a hot sun at NOT, followed by high ambient temperatures in the hold of the Flaminia, caused the DVB80 to auto-polymerize. The Court also finds that the heated DPA, which had been placed in containers adjacent to those filled with DVB80 at NOT and in the hold of the vessel, was a substantial contributing factor in the auto-polymerization.

         As the auto-polymerization progressed aboard the Flaminia, a white cloud of venting DVB80 gases triggered alarms. The crew missed a final opportunity to prevent the explosion when, lacking information as to the conditions in the hold and instructions as to how much carbon dioxide (“CO2”) to release, it failed to inert the venting gases. The reasonable crew response to what crew members believed was an ongoing fire then created a spark that triggered the explosion.

         The Court's findings of fact and conclusions of law are set forth below.

         I. THE PARTIES

         Dozens of parties have, at various points, been involved in these proceedings. For purposes of this Phase 1 causation trial, the notable players consist of the following groups: first, the “ship interests, ” Conti and MSC; second, the parties that manufactured and shipped the three ISO containers of DVB80, Deltech and Stolt; and third, the companies connected to ten ISO containers of DPA. This last group is comprised of Rubicon LLC (“Rubicon”), the manufacturer; Chemtura, the owner and shipper; and Bulkhaul Ltd. and Bulkhaul (USA) Inc. (together, “Bulkhaul”), which provided the ISO containers in which the DPA was stored. (Stipulated Facts ¶ 9, ¶ 66.)[3]

         II. THE BATTLE OF THE EXPERTS

         A total of 54 witnesses testified at trial: 35 by deposition designation; 13 by trial declaration, live cross-examination, and live redirect; and six by trial declaration only (because the parties waived cross-examination (see Trial Tr. at 101-03)).[4] The Court also received into evidence over one hundred documents and a videotape.

         A number of intelligent, articulate, and talented experts in their fields testified at trial. Each of the individuals who testified as an expert was truly an expert; the fact that the Court credits certain conclusions over others does not suggest otherwise. Ultimately, the Court credits the testimony of the experts representing Stolt and Deltech over the experts representing MSC, Conti, and/or Chemtura.[5] The Court was highly impressed with the credentials of the Stolt/Deltech experts, as well as the engagement, rigor, and consistency with which they approached their work and opinions; Stolt and Deltech's experts were the most persuasive.

         While relatively early in this Opinion and technically complex, in order to set the stage for the Court's findings that follow and which rely heavily on the experts, the Court now provides a brief overview of their work. The technical details will be explained more thoroughly in the relevant sections of this Opinion.

         A. Dr. Scott G. Davis

         Scott G. Davis, Ph.D., testified extensively at trial. The Court was very impressed by him. Dr. Davis has all the expertise a court could wish for: extraordinary credentials, engagement with his assignment, and a careful, forthright, and clear manner. The Court was particularly persuaded by the careful scientific work that he did which reinforced many of his opinions. Dr. Davis was not relying solely on theory-he and the company with which he is associated, GexCon US, Inc. (“Gexcon”), performed modeling and testing that provide a strong, independent basis for crediting his views. The Court relies heavily on his opinions. He did not overreach.

         A summary of certain of Dr. Davis's qualifications are as follows: he holds a Masters of Science and a Ph.D. in mechanical and aerospace engineering from Princeton University. Dr. Davis is a registered professional engineer in California and New York, a licensed engineer in Texas, and an authorized professional engineer in Maryland and Pennsylvania. He is a certified fire and explosion investigator with the National Association of Fire Investigators National Certification Board. He has also completed a “fire cause and origin investigation” training with the California Office of State Fire Marshal, hazardous waste operations and emergency training in accordance with Occupational Safety and Health Administration (“OSHA”) standards, and confined space entry training also in accordance with OSHA. (Davis Trial Decl., ECF No. 1304, at 1, ¶¶ 3-6.) Dr. Davis has authored numerous scientific and academic publications. (Id. at 1, ¶ 7.) He is President and Principal Engineer at Gexcon, where he is responsible for fire and explosion related assignments. (Id. at 1, ¶¶ 1, 8.) This includes post-incident investigative work, worldwide training and experimentation, risk assessments, and safety studies for petrochemical facilities and other industries. (Id. ¶ 8.) At Gexcon, he has performed numerous explosion risk assessments, blast and venting analyses, assessment of combustible dust explosions, toxic/flammable gas releases and dispersion, hydrogen safety, ventilation, detector placement, and carbon monoxide dispersion. (Id. at 2, ¶ 9.)

         Dr. Davis is a member of Gexcon's “docents group, ” which delivers industrial seminars all over the world on the hazards associated with gas explosions. (Id. at 2, ¶ 10.) He has expertise in the investigation and prevention of fires, explosions, and dispersion hazards such as flammable vapors, as well as extensive experience evaluating the cause, origin, and dynamics associated with fires and explosions, principally as they relate to ignition, flame propagation, chemical kinetics, and fluid dynamic processes associated with combustion and explosion events. (Id. at 2, ¶¶ 11, 12.) Dr. Davis has been the lead investigator on hundreds of fire and explosion incidents, including chemical and industrial facilities and equipment, dust explosions, natural gas and propane explosions, above-ground storage tanks, unintentional ignition including thermal runaway, and residential and commercial fires. (Id. at 2, ¶ 13.) Prior to joining Gexcon, his research focused on heat and flow processes in fires, chemically reacting flows, flame dynamics, and combustion phenomena in high-pressure burners and reactors. (Id. at 3, ¶ 16.) As part of his professional experience, he has developed large-scale experiments to understand the explosion phenomena of deflagration to detonation. (Id. at 3, ¶ 17.)

         Deltech retained Dr. Davis to conduct and lead a comprehensive scientific investigation into the cause and origin of the explosion and fire that occurred aboard the Flaminia on the morning of July 14, 2012. (Id. at 10, ¶ 1.) His investigation and work on this case lasted over two and a half years. (Id. at 12, ¶ 14.) As part of his work, Dr. Davis and others from Gexcon visited the Deltech facility in Baton Rouge, Louisiana where the DVB80 at issue in this case was manufactured and filled into ISO containers for transport. (Id. at 10, ¶ 3.) He reviewed the records of DVB80 production and storage and measured the dissolved oxygen saturation levels at various stages of Deltech's DVB80 manufacturing, storage, and transport process. (Id. at 10, ¶¶ 4-5.) Dr. Davis performed detailed computational fluid dynamic (“CFD”) analysis of the mixing and storage of DVB80 in Deltech's main cooling and storage tanks. (Id. at 10, ¶ 6.)

         The Court found Dr. Davis's mathematical heat transfer models particularly compelling. He created and used these models to ascertain the magnitude of heat transferred to the DVB80 ISO containers during the time they were stored at NOT aboard the Flaminia. (Id. at 10, ¶ 7.) This analysis included evaluating the combined effects of the ambient air temperature, solar radiation on the dock, thermal radiation from neighboring ISO containers of heated DPA, the ambient air temperature in the hold where the containers of DVB and DPA were stored (“Hold 4”), the impact of ventilation (or lack thereof), and the heated bunker fuel wing tanks adjacent to Hold 4. (Id. at 10-11, ¶ 7.) Dr. Davis's heat transfer model allowed him to estimate the approximate time it took the DVB to begin auto-polymerizing. (Id. at 11, ¶ 8.)

         As part of his work on the case, Dr. Davis performed thermal accelerated rate calorimetry tests (“ARC” tests) of DVB80 to determine the time to onset of an exothermic reaction (discussed below), which indicates the onset of polymerization; tests to determine the flammability characteristics of DVB80; and tests relating to venting and peak temperature rise under certain conditions. (Id. at 11, ¶ 9.) Further, he used advanced computational fluid analyses as well as an analytic model of CFD dispersion to evaluate the effectiveness of the CO2 system, the dispersion of venting DVB80 within the cargo hold, and explosion modeling. (Id. at 11, ¶¶ 11-12.)

         In addition to all of this, Dr. Davis created a full-scale model to test certain temperature conditions. He placed an ISO container with characteristics as similar as possible to one of the ISO containers (Tank I) aboard the Flaminia, filled with DVB80, and placed it within a specially built structure (the “Full-Scale Test”). The Full-Scale Test allowed Dr. Davis to establish with a high and persuasive degree of scientific certainty: (1) the representative UA (relating to thermal resistance) of the Stolt ISO containers filled to 80% capacity with Deltech's DVB80; and (2) the minimum expected time it took to auto-polymerize, or the shelf life of Deltech's DVB80 as prepared and shipped aboard the Flaminia. (Id. at 11-12, ¶ 13.)

         Dr. Davis's conclusion, with which the Court agrees, is that Deltech's DVB80 would not have auto-polymerized and undergone the thermal runaway reaction it did on July 14, 2012, if it had not sat still in the sun at NOT, if it had not been stored next to heated DPA both on the dock at NOT and in Hold 4, and if Hold 4 had been properly ventilated and had not had high ambient temperatures. (Id. at 13- 14, ¶¶ 1-6.) In addition, even when thermal runaway had been achieved, an explosion was not a foregone conclusion; additional deployment of CO2 could have rendered the gas inert, and in the absence of an ignition event-a spark-no explosion would have been triggered. (Id.)

         B. Dr. Deborah Kaminski

         The Court was also highly impressed by Deborah Kaminski, Ph.D., another expert retained by Stolt and Deltech. Dr. Kaminski provided a number of opinions relating to heat transfer-an area particularly important in this case, as the parties are litigating whether, how, and to what extent heat transferred into or out of the containers in which the DVB and DPA were stored (the “ISO containers”) contributed to runaway auto-polymerization. Dr. Kaminski is another true expert, with decades of relevant in-depth experience.[6]

         A summary of Dr. Kaminski's credentials are as follows: she is a Professor Emerita of Mechanical Engineering at Rensselaer Polytechnic Institute (“RPI”). (Kaminski Decl., ECF No. 1303, at 2, ¶ 3.) She earned her Bachelor of Science in physics from RPI in 1973; her Masters of Science in Chemical Engineering from RPI in 1976; and her Ph.D. in Mechanical Engineering from RPI in 1985. (Id. at 2, ¶ 4.) Prior to obtaining her doctorate, she spent five years at General Electric Research and Development Center, working on heat transfer. (Id. at 2, ¶ 5.) Her doctoral research was on computational fluid dynamics in free convection. (Id. at 2, ¶ 6.) Dr. Kaminski was the Associate Technical Editor for the Journal of Heat Transfer from 1998-2001, and she was named a Fellow in the American Society of Mechanical Engineers in recognition of her work in radiation heat transfer. (Id. at 3, ¶¶ 7-9.) In 1995-96 she served as the Program Director of Thermal Transport and Thermal Processing at the National Science Foundation. (Id. at 3, ¶ 10.) She has also co-authored a book on thermal engineering, published in 2004, and has written 82 articles in peer-reviewed publications as well as 11 additional publications in the areas of thermal engineering and heat transfer. (Id. at 3, ¶ 11.)

         Dr. Kaminski was retained to determine the temperature history and polymerization of the DVB80 containers from the time they were filled at Deltech's Baton Rouge manufacturing facility until the time the first alarm went off aboard the Flaminia on July 14, 2012. She also computed the temperature of the DPA and measured its contribution to heat conditions within the hold where the containers of DVB80 and DPA were stored.

         Dr. Kaminski created reliable experimental and theoretical estimations of the thermal resistance of the relevant ISO containers. She then predicted the temperatures of the liquid DVB80 and heated DPA while the ISO containers were at NOT and examined the influence of the heated DPA on the DVB80. She discussed the heat transfer that occurred at NOT-where one ISO container filled with DVB80, an unstable and heat-sensitive mixture, was stored facing three neighboring containers filled with heated DPA; two additional containers of DVB80 were on top of the stack. Her analysis determined that all of the DVB80 containers were affected by solar radiation, infrared radiation, and proximity to neighboring DPA containers. Her opinions in this regard were rigorous, based in evidence, clearly explained, and persuasive.

         In addition, Dr. Kaminski modeled the temperatures of the DVB80 containers while they were in the hold of the Flaminia for 14 days, considering a number of different air temperature scenarios. She then predicted the induction time for the three ISO containers of DVB80. Her conclusions agree with those of Dr. Davis on which the Court relies, finding thermal runaway following from the combined conditions of heat at NOT and both heat and poor ventilation in Hold 4.

         C. Dr. Hans Fauske, D.Sc.

         A third expert upon whom the Court relies is Dr. Hans Fauske. He was retained by Deltech to testify regarding the thermal stability of DVB80. His testimony was ultimately narrow-providing experimental results that allowed for a mathematical calculation predicting the time necessary to achieve runaway auto-polymerization. Dr. Davis was persuaded as to the reliability of these equations, and so was the Court.

         Dr. Fauske is the founder, Emeritus President, and Regent Advisor of Fauske and Associates, LLC, a world leader in nuclear, industrial, and chemical processes, and now a wholly-owned subsidiary of Westinghouse Electric Company. He obtained a Masters in Science in Chemical Engineering from the University of Minnesota in 1959 and a Doctorate of Science from the Norwegian Institute of Technology in 1963. After completing his graduate education, Dr. Fauske joined the staff of the Argonne National Laboratory, an entity managed by the University of Chicago. In 1972, he became a Senior Chemical Engineer at the lab (the equivalent of a full professor of the University of Chicago). In 1975 he was awarded the University of Chicago Medal for Distinguished Performance. He has won a number of awards and recognitions from organizations and academic institutions worldwide, has published more than 200 scientific articles, and holds numerous patents in the areas of nuclear and chemical safety.

         Dr. Fauske believes strongly in the benefits of experimental results to inform his conclusions. He presented compelling testimony regarding testing that he conducted for this matter. Dr. Fauske also ran a series of ARC tests, Thermal Activity Monitor (“TAM”) tests, and Vent Sizing Package Calorimeter (“VSP2”) testing. In his opinion, TAM tests are the most accurate means to determine the shelf life of DVB80. (Fauske Decl. at 27, ¶ 79.) He was persuasive in this view. Based on these experiments, Dr. Fauske was able to derive “Arrhenius equations” that predict the “shelf life” (that is, the “induction time” or time to auto-polymerization) of Deltech's DVB80 as a function of its temperature. (Fauske Decl., ECF No. 1290, at 5, ¶¶ 37-38.) “Arrhenius equations” are mathematical calculations that can account for chemical reactions occurring at increased temperatures. (Id. at 6, ¶ 41.)

         Dr. Fauske determined an Arrhenius equation applicable here based on guidelines for the DVB published by Deltech and Dow Chemical Company (“Dow”). (Id. at 6-7, ¶ 44.) Notably, the Arrhenius equations that he derived from the TAM testing (assuming no headspace in the ISO container) and from the guidelines provided by Deltech and Dow predicted the shelf life of the DVB80 used in the Full-Scale Test conducted by Dr. Davis. In addition, based on his testing, Dr. Fauske was able to conclude that the DVB80 sample he received from Deltech, which had been manufactured in the same manner as that which filled the ISO containers aboard the Flaminia, was adequately saturated with oxygen. According to his Arrhenius equations, under normal conditions, the upper bound of the shelf life for DVB80 manufactured according to the same process as that aboard the Flaminia was 64.9 days. (Id. at 37, ¶ 94.) This means, under normal conditions, the DVB80 aboard the Flaminia should have made it safely to port in Antwerp, Belgium.

         The Court was persuaded by Dr. Fauske that the Arrhenius equation he developed allows for a determination of how long Deltech's DVB80 would remain stable at various temperatures, and provides the approximate shelf life of the DVB80.

         D. Plaintiffs' Experts

         With regard to the plaintiffs' expert witnesses, the Court again notes that all were impressively credentialed and deserving of the title “expert.” However, for the reasons set forth here and throughout this opinion, the Court was not persuaded by their testimony that Deltech did not adequately oxygenate the DVB80, or that anything other than crew activity ignited the explosion.

         Plaintiffs retained Dr. Paul Beeley, a forensic investigator who specializes in fires and explosions. Dr. Beeley presented four possible sources of ignition for the Flaminia fire and explosion including: a spark involving the electrical system inside Hold 4; crew activity on deck; discharge of static electricity; and thermal runaway of the DVB leading to auto-ignition. (Beeley Decl. ¶ 8.) At trial, though, Dr. Beeley could not identify any physical evidence supporting one source of ignition over another, and he did not assign a relative probability to any of the sources. (Tr. at 774:4-6; id. at 775:3-6; id. at 788:4-16.) Further, he did not perform an independent investigation of the ship's electrical systems, but instead relied on another expert's opinion regarding the equipment.[7] As such, Dr. Beeley's testimony cannot be relied on to prove anything beyond the fact that the explosion was triggered in one of at least four ways. The Court's task in this Phase 1 trial is to determine whether these possibilities can be measured-and they can.

         Plaintiffs also retained Edward Hammersley, another fire and explosion investigator and a chemistry expert, and David Robbins, a forensic investigator and specialist in fires and explosions. The Court found Hammersley and Robbins similarly credible, but was still unpersuaded that auto-polymerization occurred as a result of a flaw in Deltech and/or Stolt's manufacturing and/or transport processes.[8]

         Hammersley's declaration focused on testing of samples of materials from Hold 4 of the Flaminia, which, he concluded, demonstrated that the DVB shipments had undergone auto-polymerization that resulted in venting of DVB80 polymer. (Hammersley Decl. at ¶¶ 8, 44-49, 74-75, 99-100.) He also determined that no other cargo was involved in the explosion, and that there was not a fire in the hold prior to the release of CO2. (Id. at ¶¶ 9-10.) With regard to the induction time to auto-polymerization, while Hammersley testified that Dr. Fauske's Arrhenius equations resulted in a “prediction contrary to scientific expectation, ” he was not persuasive in this view. (Hammersley Decl. at ¶¶ 113, 116, 127.) And at trial, Hammersley conceded that Dr. Fauske's equations set forth a conservative view of temperature conditions (that is, a view favorable to the plaintiffs' interests). (Tr. at 1397:4-1400:14.) Hammersley did not perform any TAM tests of his own. (Id. at 1405:9-10.)

         Robbins similarly concluded that the fire and explosion were caused by the DVB80's auto-polymerization and ignition due to a discharge of static electricity. He analyzed previous incidents involving auto-polymerized DVB as well as the preferred and calculated temperature and storage conditions for the Flaminia DVB80. Like Hammersley, Robbins ruled out alternative sources of a fire, such as other cargo. (Robbins Decl. ¶ 172.) Overall, the Court was not persuaded that Hammersley's and Robbins's explanations supported a theory that auto-polymerization occurred due to a flaw in Stolt and Deltech's processes.

         Finally, plaintiffs retained Dr. Brian Ott, a chemical engineer who opined that it was “more likely than not that the subject DVB shipments were not fully saturated with oxygen when they were delivered” to NOT. (Ott Decl. ¶ 17.) The Court was not persuaded. Though Dr. Ott opined that the liquid DVB80 was not sufficiently oxygenated, he neither modeled its mixing within the storage tank nor tested the oxygen saturation levels of DVB during Deltech's manufacturing process. The Court is also unpersuaded by Dr. Ott's calculation of the relevant UA values; Dr. Davis's values were based on direct measurement through his Full-Scale Test, while Dr. Ott's were reverse-engineered and based on an incorrect assumption regarding the oxygen saturation in one of the tanks used during manufacturing. Additionally, his model failed to incorporate the influence of solar radiation and DPA on the containers while they sat on the dock.

         Further, Dr. Ott critiqued Dr. Davis's computation of what is referred to as the cumulative Fraction of Inhibitor Life Consumed (“FILC”) measure. Dr. Ott contends that because Dr. Davis's calculations depend on precise knowledge of the oxygen concentration and temperature of the subject DVB shipments-which is unattainable-they are necessarily unreliable. (Ott Decl. at ¶¶ 179-80, 186.) This position is unpersuasive. While there is uncertainty, that does not address Dr. Davis's careful, reasoned conclusions based on certain known facts, principles, modeling, and experiments. In addition, Dr. Ott's model of the DVB's shelf life is itself flawed. It derived a UA value based on incorrect assumptions, used an unrealistic temperature contribution from the DPA on the ambient air, and failed to account for diffusion from the headspace. (Davis Decl. at 100, ¶ 3.)

         The Court also viewed Dr. Ott as overreaching in his answers at trial. For instance, he posited assumptions that, if credited, (1) would support a scenario in which most, if not all, of Deltech's DVB shipments are so unstable that venting and even explosions should occur frequently on trans-Atlantic voyages (and they do not); and (2) predicted auto-polymerization of the Flaminia shipments almost a week before it actually occurred. Furthermore, Court found Dr. Ott unnecessarily argumentative, distracting from any persuasive force in his arguments.

         E. Chemtura's Expert

         Chemtura presented one witness at trial, Douglas Carpenter, a mechanical engineer who was retained to determine what DPA's role might have been in the fire and explosion. The Court found Carpenter credible but was not ultimately persuaded by his views. He principally opined that the DPA did not make a “thermal contribution” (that is, contribute to heat) in the adjacent DVB containers. Carpenter opined that the source of heat for the DVB containers may have been re-radiation from other cargo exposed to solar radiation or the pavement; notably, however, he did not adequately explain why these sources would not have also reheated the DPA. (And no other expert pointed to these sources as heavily influencing the DVB's temperature.) Simply put, the weight of evidence throughout trial is against Carpenter's conclusions, and thus the Court does not rely on them.

         III. FINDINGS OF FACT[9]

         A. DVB's Chemical Properties

         The parties largely agree on the basic chemical properties of DVB80 that are are at the heart of this case. The core disagreement relates to whether the manufacturing process failed to adequately oxygenate the DVB80, or whether the terminal and vessel storage conditions triggered auto-polymerization.

         DVB is an “enhanced performance aromatic monomer” produced by Deltech to include para-methylstyrene (“PMS”), vinyltoluene (“VT”), and tertiary-butylstyrene (“TBS”). (Cooper Decl., ECF No. 1295, ¶ 8.) Deltech produces DVB in two grades: 80% (“DVB80”) and 63% (“DVB63”). The DVB that shipped aboard the Flaminia was DVB80. DVB80 is a monomer that, depending on exposure conditions, can undergo heat-initiated free radical[10] polymerization. (Davis Decl. at 28, ¶ 61.) When exposed to heat, the DVB monomer molecule becomes unstable and forms a reactive, free radical. This molecule can then react with another DVB molecule to start a polymer chain. (Id. at 28, ¶ 62.) This is referred to as “polymerization.”

         The “polymerization” of DVB is an “exothermic” reaction. That is, energy (heat) is released when DVB monomer molecules combine to form DVB polymer. (Stipulated Facts ¶ 1, ¶ 6.) Thus, once started, the process generates its own heat, which results in additional polymer formation; once begun, the polymerization process is self-sustaining. This, in turn, gives rise to “auto-polymerization.” (Id. at 1, ¶ 7; Davis Decl. at 29, ¶ 65.) In scientific terms, the “exothermic reaction” is “self-promoting” and “auto-accelerating.” (Stipulated Facts ¶ 1, ¶ 8; Davis Decl. at 29, ¶ 66.) Polymerized or polymerizing DVB is not a desired condition. Polymerizing DVB is unstable and potentially dangerous. Customers order DVB in its monomer form, without high polymer content.

         When the heat generated by the exothermic auto-polymerization reaction exceeds the heat lost to the environment, the reaction is said to have reached “thermal runaway”; at this point, polymerization increases exponentially. (Davis Decl. at 29, ¶ 67.) If the runaway reaction generates temperatures and pressure that exceed the capacity of the equipment in which the product is stored (for instance, an ISO container), a pressure relief valve is required to vent accumulated gases. (Id. at 29, ¶ 68.) A white, smoky cloud of gas may be emitted. If exposed to an ignition source and a specific amount of oxygen (discussed below), the DVB gas may explode. Deltech's manufacturing process is designed with these chemical characteristics in mind.

         TBC and oxygen halt polymerization (that is, the formation of DVB polymer) by creating a chain-terminating reaction sequence (that is, TBC and oxygen can stop the formation of polymer chains and thus prevent the exothermic reaction that can lead to thermal runaway). (Id. at 29-30, ¶¶ 71-72.) During the manufacturing process, Deltech oxygenates and adds TBC to the DVB liquid to inhibit polymerization. (Id. at 29, ¶ 70.)

         A major issue in this Phase 1 trial is the time it took the DVB80 aboard the Flaminia to begin to auto-polymerize, referred as the “induction time” of DVB or its “shelf life.” The induction time or shelf life of DVB liquid is the time it takes to deplete the inhibiting materials (that is, the oxygen and TBC) below a threshold value, allowing the auto-polymerization reaction to commence. (Id. at 30, ¶ 73.) The induction time depends on the temperature of the liquid, which dictates the consumption rate of the inhibiting material (that is, the consumption rate of oxygen and TBC). (Id. at 30, ¶¶ 73-74, 76.)[11] Once the TBC or oxygen is depleted below a certain threshold, the chain-terminating path no longer exists and polymerization can occur. (Id. at 30 ¶ 77.)[12] Thus, the oxygen saturation level, the amount of TBC, and temperature play a significant role in the stability of DVB80.

         Even polymerized or auto-polymerized DVB80 does not explode without some external ignition source and just the right amount-no more, no less-of oxygen. To reach the point where a spark may ignite the liquid requires that the temperature of the DVB80 liquid reaches what is referred to as its “flashpoint.” (Id. at 25, ¶ 51.) DVB80 has a flashpoint of between 156.2-170°F (69-76.7°C). Its auto-ignition temperature (that is, the point at which it ignites without an external ignition source) is far higher-470°C. (Id. at 26, ¶ 54.)

         Additionally, in order for DVB80 vapor to ignite (assuming a temperature level at or above the flashpoint), the concentration of DVB80 vapor and air (oxygen) must be within narrow limits; the DVB vapor can only be between 1.1% and 6.2% of the combined vapor/air mixture. If the concentration is below 1.1% DVB80 vapor per unit volume of air (that is, too much air dilutes the vapor), or more than 6.2% DVB80 vapor (that is, not enough air), ignition is impossible. (Id. at 25, ¶¶ 48-50.) Thus, the window for ignition of DVB80 is relatively narrow. In addition, even when these conditions are met, an external ignition source is required (such as a spark) to trigger a fire or explosion. Here, as discussed below and based on the evidence at trial, the Court is persuaded that the DVB80 did not auto-ignite, but rather that the crew lifted the lid covering the access point to Hold 4 as part of its response to the fire alarms in order to insert a hose. Such lifting caused friction, resulting in a spark that triggered the explosion.

         B. Deltech's DVB Manufacturing Process

         Deltech's process of manufacturing DVB80 includes sufficient chilling, oxygen saturation, and TBC to ensure safe trans-Atlantic shipment under typical storage, temperature, and transport conditions (including typical voyage length).

         The pertinent aspects of the process are as follows: Deltech manufactures DVB80 at its Baton Rouge facility in batches or campaigns based on customer demand. The following figure depicts the process:

         (Image Omitted)

         (Stipulated Facts ¶ 3, ¶ 19; Davis Decl. at 32, ¶ 80.)

         The DVB80 is manufactured in numerous distillation columns. (Stipulated Facts ¶ 3, ¶ 20.) While in the columns, oxygen exposure is minimal because the columns operate under a vacuum. (Id. at 3, ¶ 21.) TBC is added in the overhead vapor line that connects the top of AT-307 to the TS-337 condenser and, at this point in the process, the DVB mixture is cooled to the cooling tower water temperature which is near ambient. (Id. at 3, ¶ 22.)

         The DVB80 is then pumped from the finishing column to one of the day tanks (MD-326 and MD-327), where it is circulated to ensure product uniformity prior to sampling. (Id. at 4, ¶ 23.) After approximately twenty-four hours of production (depending on the production rate), the flow of DVB80 from the column is redirected into the other day tank. (Id. at 4, ¶ 25.) The DVB80 is then circulated and a sample is taken from the day tank for analysis in the lab. (Id. at 4, ¶ 26.) If the sample meets specifications, the product in the day tank is transferred into a storage tank, the MV-804. (Id.)

         The MV-804 storage tank plays a key role in this case, as it is the location in which the bulk of the chilling and oxygenation of the DVB80 occurs. The MV-804 is a cylindrical tank (30' tall, 30' diameter), with a capacity of 155, 000 gallons. (Id. at 4, ¶ 31.) Since at least 2012 to the present (and during the production campaign relevant here), the MV-804 storage tank is filled only at or below 80% capacity. This allows for 20% headspace in the MV-804. Headspace, in turn, allows for the presence of air (i.e., oxygen) above the liquid. This allows for diffusion of the oxygen into the DVB80 while in the MV-804 tank. The tank also has a vent allowing oxygen into the tank, as well as a circulation loop that allows the DVB to be continuously circulated through a chiller (at a rate of 34 gallons/minute). (Id. at 4, ¶ 27; see also Davis Decl. at 33, ¶¶ 87-88; Sciortino Decl., ECF No. 1302, ¶ 16.)[13]The chiller unit in the MV-804 storage tank is equipped with a permanent fixed piping system and pump that takes DVB from the tank, runs it through an external chiller, and then delivers it back into the MV-804 tank.

         Prior to June 21, 2012, several containers were filled with DVB80. This decreased the level of liquid in the MV-804, increasing the headspace. The DVB80 ultimately destined for the Flaminia continued to circulate within the MV-804 tanks for several additional days, continuing to be oxygenated and chilled.

         The temperature of the MV-804 storage tanks is monitored daily by Deltech personnel. (Sciortino Decl. ¶ 14.) In addition, a sample from the MV-804 storage tank is taken once per week for analysis by Deltech's Quality Control Laboratory. The testing checks TBC levels. (Cooper Decl. ¶ 102.)[14] Deltech maintained records of the temperatures for the product storage tanks for the period from June 18-22, 2012. (Sciortino Decl. ¶¶ 29-32.) On June 21, 2012 (the day the DVB80 was loaded into the containers destined for the Flaminia), the temperature of the DVB80 in the MV-804 storage tank was 44°F-a temperature well within typical and safe limits. (Id. ¶ 34, fig. 5.)

         Due to changes in the level of DVB liquid within the storage tank, DVB residue may adhere to the walls of the tank. Lowering tank levels (for instance, when ISO containers are filled) may leave a thin layer of liquid DVB on the tank walls. As the liquid layer vaporizes, some DVB is left behind. In addition, stalactites (solid formations of DVB) may be formed on the roof of the tanks. Stalactites are removed during cleaning but sometimes fall into the liquid DVB and, depending on the presence of factors that may have allowed it to polymerize, can cause the polymer content of the DVB to increase.[15]

         C. Filling into a Storage Receptacle

         The next step in Deltech's manufacturing process is filling a receptacle with DVB. Two aspects of this process have particular importance in this case: first, the oxygenation (via diffusion) that occurs during and as a result of the passage of the liquid through the air and splashing into the containers that occurs during the fill process itself; and second, the physical characteristics of the container, such as whether it is an uninsulated drum or an insulated ISO container. The temperature of the stored DVB product in an ISO container is impacted by the type and placement of insulation, vents, and the surface area exposed to heat sources.

         Tommy Sciortino, a “loader” employed by Deltech, testified by declaration at trial and all parties waived cross-examination. Sciortino personally filled the three ISO containers of Deltech's DVB80 that were shipped aboard the Flaminia. (Sciortino Decl. ¶ 7.) For the purposes of this litigation, the three ISO containers destined for the Flaminia have been designated as Tanks I, J, and K. (Id. ¶ 46.) While Sciortino does not recall filling these precise containers, he followed the same procedures for all loading. Deltech creates a Product Transfer Sheet for product that will be filled into containers for a customer. The Product Transfer Sheet for Tanks I, J, and K, which Sciortino completed on June 21, 2012, identified the TBC level within the expected range of 1000-1, 100 ppm. (Id. ¶ 42.)

         ISO containers, including Tanks I, J, and K here, are filled one at a time. Deltech uses “loading racks” for this purpose. (Id. ¶ 75.) The loading racks are freestanding and consist of a metal staircase with a platform on top. When a truck pulls up to the loading rack, the loader drops a moveable walkway above the ISO container. The walkway rests on the container's frame and provides the loader with access to its top. The walkway allows the loader to walk onto a container and to open and close the lid on its top-referred to as a “manlid.” (Id. ¶ 76.) The manlid is the opening through which product is filled. (Id.) Prior to filling a container, the loader runs through a standard “pre-filling” checklist and visibly inspects the container for cracks, dents, or damage, the container's temperature gauge, the dome gasket that seals the manlid for proper fit, and the container's seal to ensure it is properly fitted and undamaged. (Id. ¶ 79.) As reflected in the checklist retained in Deltech's files, Sciortino performed the typical pre-loading checks for Tanks I, J, and K. (Id. ¶¶ 81-83.) No defects or problems were detected with any of these ISO containers. (Id.)

         The filling process itself takes 35-40 minutes. The loader inserts a 12-foot gauge stick into an empty tank. (The stick has markings to identify the fill point.) The loader then extends the loading arm out over the tank's manlid, which was previously opened during the inspection process. (Id. ¶¶ 89-90.) The loader then lowers the loading arm through the manlid; the end of the nozzle extends approximately 30 inches below the manlid opening. (Id. ¶ 91.) The DVB80 pours out of the loading arm, falls through the air and splashes into and around the inside of the ISO container. (Id. ¶ 97.) This process further oxygenates the liquid as it falls or splashes into the container. (Davis Decl. at 46, ¶ 135.) The loading arm remains above the liquid level of the DVB in the ISO container for the majority of the filling process; it is typically submerged for about three minutes during the entire 35-40 minute process. (Sciortino Decl. at ¶ 97.)

         When filling is almost complete, the loader inserts a thermometer into the DVB liquid in the container to determine the temperature of the product. (Id. ¶ 104.) A sample of the DVB is taken and tested by Deltech's Quality Control Laboratory. (Id. ¶¶ 86, 104.) Samples from each of Tanks I, J, and K indicated TBC concentration levels within the expected range of 1000-1, 100 ppm and polymer concentration at an expected level of less than 5 ppm. (Id. ¶¶ 115-118.) The Deltech “Loading Sheet” records the temperature of the DVB after filling. The Loading Sheets for Tanks I, J, and K indicate that the DVB80 had a temperature of 44°F. (Id. ¶¶ 129-133.) This is consistent with the temperature in the MV-804 storage tank and corroborates Deltech's position that the manufacturing process employed for the DVB80 here was its typical process.

         After an ISO container has been filled, Deltech's loaders then perform a post-inspection of the truck, its chassis, and the filled ISO container. During this post-filling inspection, the loaders ensure, inter alia, that there are no leaks and that the chains on the caps, plugs, and safety valves are secure. No defects or problems for Tanks I, J, or K were noted during this post-filling check process. (Id. ¶ 107.) After the post-filling inspection, the truck then pulls away from the loading dock.

         In July 2016, one of Dr. Davis's Gexcon colleagues observed the filling process. (Id. ¶¶ 155-156.) His observations confirmed the points in the process during which oxygen saturation and the addition of TBC occurred, as well as the loading protocol. No other expert observed the process.

         D. Manufacturing and Filling the Flaminia Shipment

         At issue in this trial is the cause of the auto-polymerization of DVB80 in Tanks I, J, and K. The DVB80 in each of those containers was manufactured by Deltech pursuant to the above process, and filled into three ISO containers provided by Stolt. Plaintiffs argue that the lack of adequate oxygenation of the DVB80 caused it to auto-polymerize aboard the Flaminia. The Court here describes the particular facts relating to the manufacturing and filling process relevant to these three containers, based on the process set out above.

         At trial, the parties focused on whether Deltech's manufacturing process for the DVB80 shipped aboard the Flaminia allowed for sufficient oxygen saturation and chilling of DVB80. If not, then the DVB80 may have been doomed to auto-polymerize because its inhibitors (TBC and oxygen) would have been depleted before successful completion of the voyage; but if the DVB80 was adequately oxygenated and had enough TBC, then external conditions must have played the causal role.

         After filling on June 21, 2012, Deltech tested Tanks I, J, and K for TBC levels and polymer content. As stated above, the test results showed that the TBC and polymer content were within specification levels. Evidence amply supports the Court's finding that the DVB80 filled into Tanks I, J, and K had a high level of oxygen saturation from: (1) the mixing in the MV-804 storage tank for at least ten days since the end of the production run, and for over six days after the headspace in the storage tank had additional fresh air in it; and (2) agitation from the fill process itself, from truck transport on the road, and in connection with the process at NOT during which cargo containers were stacked. Under normal transit time and temperature conditions, this level would have allowed for a safe arrival in Antwerp.

         The DVB80 in the ISO containers aboard the Flaminia was manufactured as part of a production campaign that started on May 19, 2012 and ended on June 11, 2012. (Stipulated Facts ¶ 5¸ ¶ 35; Davis Decl. at 34, ¶ 93.) During this manufacturing campaign, the levels of DVB80 in the various tanks (including the MV-804) rose and fell. In general, the higher the liquid level, the less oxygen can saturate the product (as there is less room for the product to move around, allowing for mixing with the oxygen). Before filling Tanks I, J, and K on June 21, 2012, Deltech filled ISO containers to be shipped aboard another ship, the Ludovica, on June 15 and June 18. This reduced the level of DVB80 in the storage tank, allowing more oxygen to mix with the remaining product, at least some of which was eventually shipped aboard the Flaminia. (Davis Decl. at 37, ¶¶ 105-06.) The DVB80 that eventually filled the ISO containers destined for the Flaminia spent several additional days in the tank, allowing for more chilling and additional oxygenation compared with the Ludovica shipments (which in all events made the trans-Atlantic voyage safely). (Stipulated Facts ¶ 37, ¶ 110.)

         The Flaminia DVB80 and the Ludovica DVB80 were produced during the same manufacturing campaign. The Ludovica departed for Europe shortly before the Flaminia.[16] The circumstances relating to the Ludovica shipment provide further evidence that the DVB80 manufactured by Deltech from May 19-June 11 had been sufficiently oxygenated and chilled. The ...


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