Mid-Atlantic explosion aboard then MSC Flaminia in 2012 still in US court today
 TODAY's safety first, last and always mentality that drives an increasing careful world, has resulted in greater expense in getting hazardous materials (hazmat) from one place to another not to mention the new serious legal risks they pose to those who handle them.
One only need to reflect aviation and marine accidents and the detailed litigation they spawn to appreciate how the expense of settling claims can drawf the real costs of the accident itself.
Still taking up court time today in New York is the case of the aptly named 6,750-TEU MSC Flaminia that exploded mid-Atlantic in July 2012, when it was engulfed in flames for a time. Eventually, the German-owned ship, on charter to Mediterranean Shipping Company (MSC) was taken in finally - with other ports refusing entry fearing hazmat contamination - at the then unused Port of Wilhelmshaven. A few months later, following repairs at Daewoo Shipbuilding and Marine Engineering's shipyard in Mangalia, Romania, the ship edged its way back into MSC service.
While the fires are a memory aboard the aptly named Flaminia, the case rages on in a New York US District Court where lawsuits have yet to be settled. At issue these days are the three containers of divinylbenzene (DVB), some say caused the explosion, though even this is not settled and remains only an allegation. A recent opinion and order stemming from the explosion and fire highights the role of intermediaries and documentation in the transport of dangerous goods, concerning how and why the explosion occurred, how it was handled, and who should be liable for any monetary loss are questions before the court.
An opinion issued in January considered the request of an intermediary, Philadelphia's BDP International Inc, for dismissal of negligence and contract claims against it by chemical shipper Deltech, and another intermediary, Norway’s Stolt Tank Containers, both involved with chemical transport.
The two companies entered into a joint venture in 1999, which they would play separate, but complementary roles. Like so many cases, the court found that while there were triable issues of fact to be adjudicated, involving possible breach of contract as claimed by Stolt, there was nothing in these which could be linked to the actual cause of the accident, on which to base a negligence claim.
This BDP’s motion for summary judgment was granted in part and denied in part, noted IHS Media, which dealt exhaustively with the case.
Deltech was the shipper of record for three divinylbenzene (DVB) containers. The company hired Stolt as an NVOCC, which arranged the transport of the hazardous DVB from Louisiana to Belgium aboard the Flaminia.
As was routine, BDP was involved in the creation of the DVB bill of lading. Deltech asserted that it was a third party beneficiary of that contract.
Deltech and Stolt say BDP “failed to ensure that proper stowage instructions for the DVB were included on the sea waybill". But the court found that the negligence-based claims brought by Stolt and Deltech fail for the same reason.
“There is no triable issue of fact with regard to causation,” it said. “That is, even if this court were to find triable issues with regard to the existence of a duty of care and breach of that duty, there is no triable issue that such breach was causally related to the casualty aboard the vessel.”
Under the rules, if hazardous cargo is transported, the law requires a Dangerous Goods Declaration (DGD) to be prepared, and a dangerous goods manager at MSC testified the DGD “is the most important document in the whole transport world."
As MSC considers all dangerous goods to be heat sensitive, it routinely attends to this factor when stowing cargo. While it would have aroused special concern said the MSC hazmat manager, he testified that special stowage instructions would not be required.
That's because handling dangerous cargo requires the placement of a container “in between” the cargo and any potential heat source whether or not MSC had received a special warning. That measure, he said, provided sufficient segregation.
This testimony, the court, along with a declaration about MSC’s dangerous, chemical and critical cargo handling procedures, “demonstrate no material factual difference between Deltech and MSC’s policies regarding the storage of heat-sensitive cargo”
Also, the BDP documentation coordinator testified that “if there was a particular stowage instruction on a customer’s shipping instruction, it would be manually entered into BDP’s system,” and then the draft bill of lading would be sent to MSC.
“Neither she nor anyone else at BDP to her knowledge had any role in preparing the DGD, and she did not receive a copy of the DGD,” she told the court.
The initial shipping instructions from Deltech’s freight forwarder, Panalpina, stated the cargo should stored above deck for temperature monitoring and not be stowed near heat sources. The coordinator said she input those instructions into the BDP system and that they were included on the form she sent to MSC.
When MSC sent back a master bill of lading, she failed to notice that the stowage instructions were not included.
But the court said: “Neither Stolt nor Deltech have raised a triable issue of fact as to whether BDP’s failure to ensure that the special stowage instructions were included on the master bill of lading was a cause of the Flaminia casualty.”
MSC’s director of safety, compliance and security said the carrier’s hazardous group does not have the bill of lading when it is reviewing and checking cargo, and it stows hazardous goods “in accordance with the requirements of the [relevant statutory code] based on the class and UN number provided by the shipper,” not the bill of lading.
“Even if BDP had a duty to ensure that the heat-related stowage instructions were included on the master bill of lading, on the undisputed facts, its failure to do so made no difference in how the DVB cargo was stored on board the Flaminia,” the court said.
As to the contract claims, the court said the contract between Stolt and BDP was governed by New York state law. Stolt argued it thus was deprived of a defence it might have “vis-a-vis other parties in the main action.”
Given that the lack of heat warning was not causally related to the casualty, the court said “it is unclear how Stolt could expect a defence based on such instructions therein to be successful,” but the lack of the instructions on the bill of lading “was provided parties with arguments that they otherwise would not have had in this litigation...Under such circumstances, the court finds that Stolt has sufficient support for damages relating to the breach to allow the claim to proceed to trial.”
And so the case proceeds, as so many do. In this one the cause of the accident is unknown and perhaps unknowable. One is tempted to think that if this problem has a remedy, it lies beyond the grasp of the law courts, though one is forced to resort to them until such a remedy is found. |
