Conti Corso Schiffahrts v. M/V Pinar Kaptanoglu, 04 Civ. 1252(JGK).

• Decision Date: 10 February 2006
• Docket Number: No. 04 Civ. 1252(JGK).,04 Civ. 1252(JGK).
• Citation: 414 F.Supp.2d 443
• Parties: CONTI CORSO SCHIFFAHRTGMBH & CO. KG NR. 2, Plaintiff, v. M/V "PINAR KAPTANOGLU", her engines, boilers, tackle, appurtenances, etc. in rem, Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., Defendants. Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., Counterclaim Plaintiffs, v. M/V "YELLOW SEA", her engines, boilers, tackle appurtenances, etc., in rem, and Conti Corso SchiffahrtsGMBH & Co. KG NR. 2, in personam, Counterclaim Defendants. Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., ThirdParty Plaintiffs, v. The M/V "SIBONATA", V. Ships (U.K.) Ltd., IMTT-Bayonne and/or International-Matex Tank Terminals, and Westport Petroleum, Inc., Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

414 F.Supp.2d 443

CONTI CORSO SCHIFFAHRTGMBH & CO. KG NR. 2, Plaintiff, v. M/V "PINAR KAPTANOGLU", her engines, boilers, tackle, appurtenances, etc. in rem, Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., Defendants.

Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., Counterclaim Plaintiffs, v. M/V "YELLOW SEA", her engines, boilers, tackle appurtenances, etc., in rem, and Conti Corso SchiffahrtsGMBH & Co. KG NR. 2, in personam, Counterclaim Defendants.

Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd., ThirdParty Plaintiffs, v. The M/V "SIBONATA", V. Ships (U.K.) Ltd., IMTT-Bayonne and/or International-Matex Tank Terminals, and Westport Petroleum, Inc., Third-Party Defendants.

No. 04 Civ. 1252(JGK).

United States District Court, S.D. New York.

February 10, 2006.

Brent Z. Skolnick, Patrick F. Lennon, Tisdale & Lennon, LLC, New York, NY, for Plaintiff/Counter Defendant.

Stephen H. Vengrow, Patrick Michael Decharles, II, Cichanowicz, Callan, Keane, Vengrow & Textor, Susan Patricia Mahon, Cozen O'Connor, LLP, Kirk M.H. Lyons, Lyons & Flood, L.L.P., New York, NY, Timothy Semenoro, Fowler, Rodriguez & Chalos, Port Washington, NY, for Defendants/Counter Claimant/Third-Party Defendants.

Jeremy O. Harwood, Healy & Baillie, LLP, New York, NY, for Westport Petroleum, Inc.

Kipp Charles Leland, Daniel James McInerney, Jr., Hill, Rivkins and Hayden, New York, NY, for IMTT-Bayonne and/or International Matex Tank Terminals.

OPINION & ORDER

KOELTL, District Judge.

This case arises out of a maritime collision between the MN PINAR KAPTNOLGLU and the M/V YELLOW SEA in the Kill Van Kull Channel in Lower New York Harbor on February 15, 2004. The collision forced the YELLOW SEA off its course and into an allision with the stationary M/V SIBONATA, which was moored nearby. An allision is the impact of a moving vessel with a stationary vessel or other stationary object. At the time of the allision, the SIBONATA was under a voyage charter to Westport Petroleum, Inc. ("WPI"), and was preparing to discharge a cargo of fuel oil owned by WPI. As a result of the allision, the SIBONATA was damaged, which in turn forced WPI to incur extra barge demurrage and shifting expenses in discharging its cargo.

WPI, a third-party defendant in this case, has brought cross claims and counterclaims against the PINAR KAPTNOLGLU and its owner and operator, Kaptanogludenizcilik Ve Tic. Ltd. and Haci Ismail Kaptanogluship Management and Trading Co., Ltd. (collectively "PK"), and Conti Corso Schiffahrts-GMBH & Co. KG NR. 2 ("Conti Corso"), the owner of the YELLOW SEA. WPI's cross claims and counterclaims allege negligence and other torts, and WPI seeks recovery of the extra barge demurrage and shifting expenses that it incurred in discharging its cargo as a result of the allision. PK and Conti Corso now move pursuant to Federal Rule of Civil Procedure 56 for summary judgment dismissing all of WPI's cross claims and counterclaims against them. For the reasons stated below, the motion is denied.

I.

The following facts are undisputed unless otherwise noted. At approximately 3:00 a.m. on the morning of February 15, 2004, the PINAR KAPTANOGLU and the YELLOW SEA collided in the Kill Van Kull Channel in Lower New York Harbor. (PK's Local Rule 56.1 Stmt. ("PK's 56.1"), 1; WPI's Local Rule 56.1 Stmt. ("WPI's 56.1"), ¶ 1.) Upon colliding with the PNAR KAPTANOGLU, the YELLOW SEA then struck the SIBONATA, which was moored nearby. (PK's 56.1 ¶ 2; WPI's 56.1 ¶ 2.) The SIBONATA suffered damage to her No. 7 port ballast tank as a result of the allision, but no damage was suffered by its cargo. (PK's 56.1 ¶ 5; WPI's 56.1 ¶ 5.)

At the time of the allision, WPI was the voyage charterer of the SIBONATA and had approximately 275,000 barrels of fuel oil in the SIBONATA's cargo tanks at that time. (PK's 56.1 ¶¶ 6-7; WPI's 56.1 ¶¶ 6-7). The Voyage Charter Party agreement between WPI and the owners of the SIBNATA contains a "Jason clause" which provides:

In the event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the Owner is not responsible, by statute, contract or otherwise, the cargo shippers, consignees or owners of the cargo shall contribute with the Owner in General Average to the payment of any sacrifices, losses or expenses of a General Average nature that may be made or incurred and shall pay salvage and special charges incurred in respect of the cargo....

(WPI's 56.1 ¶¶ 18-19; PK's Counter Local Rule 56.1 Stmt. ("PK's Counter 56.1"), 18-19.) The Voyage Charter Party agreement also includes a "General Average clause" and a "Lightering clause" that makes WPI responsible for the cost of any lightering operation, even one ordered by "local requirements/governmental approval." (WPI's 56.1 ¶ 20; PK's Counter 56.1 ¶ 20.) "Lightering" refers to the use of barges in loading or unloading ships.

After the allision, the United States Coast Guard ordered, as a precondition to conducting any repairs to the SIBONATA, that a discharge plan be provided for Coast Guard review that included damage/stability calculations to ensure that stresses on the hull would not result in greater damage to the vessel. (WPI's 56.1 ¶¶ 13, 15; PK's Counter 56.1 ¶¶ 13, 15; Declaration of Dino Vafiades in Support of WPI's Opposition to PK's Motion for Summary Judgment dated June 6, 2005, at Exhibit 1.) Thereafter, WPI discharged some of its cargo into lightering barges. (WPI's 56.1 ¶ 14; PK's Counter 56.1 ¶ 14.) WPI claims that it and the owners of the SIBONATA jointly agreed to discharge some of the cargo in this manner, and that the decision was made in response to the Coast Guard's order. (WPI's 56.1 ¶ 14.) PK and Conti Corso deny that the exhibit relied upon by WPI shows any joint agreement or the reasons for the discharge. (PK's Counter 56.1 ¶ 14.) The parties also disagree as to whether the damage caused by the allision placed the SIBONATA and its cargo in jeopardy. (Memorandum in Support of the Summary Judgment Motion of the Pinar Kaptanoglu Defendants & Third Party Plaintiffs, at 7; WPI's Opposition to Motion for Summary Judgment, at 9.) Both parties agree, however, that WPI incurred the expense of hiring two barges used to receive the cargo that was discharged from the SIBONATA after the allision, and it is the cost of hiring these barges for removal of the oil that WPI seeks to recover in this action. (WPI's 56.1 ¶ 16; PK's Counter 56.1 ¶ 16.)

II.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998).

III.

PK and Conti Corso move for summary judgment with respect to all of WPI's cross claims and counterclaims. They argue that because WPI's claims for recovery are for purely economic damages and do not allege any physical injury to cargo, they are barred by the maritime doctrine of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). In Robins Dry Dock, a vessel was negligently damaged while undergoing ordinary maintenance at a dry dock, which delayed the vessel's return to service. During that time, the vessel was subject to a charter, and the time charterer sued the dry dock for damages resulting from the loss...