Glynn Cnty. v. GL NV24 Shipping Inc.

• Docket Number: 2:22-CV-28
• Decision Date: 01 September 2023
• Parties: GLYNN COUNTY, GEORGIA, by and through the GLYNN COUNTY BOARD OF COMMISSIONERS, Plaintiff, v. GL NV24 SHIPPING INC., HYUNDAI GLOVIS CO., G-MARINE SERVICE CO., LTD, NORTON LILLY INTERNATIONAL, INC., and T&T SALVAGE LLC, Defendants.
• Court: U.S. District Court — Southern District of Georgia

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GLYNN COUNTY, GEORGIA, by and through the GLYNN COUNTY BOARD OF COMMISSIONERS, Plaintiff, v. GL NV24 SHIPPING INC., HYUNDAI GLOVIS CO., G-MARINE SERVICE CO., LTD, NORTON LILLY INTERNATIONAL, INC., and T&T SALVAGE LLC, Defendants.

No. 2:22-CV-28

United States District Court, S.D. Georgia, Brunswick Division

September 1, 2023

ORDER

HON LISA GODBEY WOOD, JUDGE

This case arises from the capsize of the M/V Golden Ray (“Golden Ray” or “the vessel”) in the Saint Simons Sound located in Glynn County, Georgia. The County filed suit for damages sustained due to the capsize against (1) the vessel's owner, GL NV24 Shipping, Inc. (“GL NV24”); (2) the vessel's charterer Hyundai Glovis Co. (“Hyundai Glovis”); and (3) the vessel's operator and technical superintendent G-Marine Service Co., Ltd. (“G-Marine”) (collectively “Vessel Defendants”), as well as (4) the vessel's agent, Norton Lilly International, Inc. (“Norton Lilly”), and (5) the wreck removal company, T&T Salvage LLC (“T&T”). This Order addresses the Vessel Defendants' and Norton Lilly's motions to dismiss. Dkt. No. 109 (Vessel Defendants); Dkt. No. 104 (Norton Lilly).

BACKGROUND^[1]

A little after 1 a.m. on September 8, 2019, the Golden Ray, a 656-foot-long car and truck carrier, left the Colonel's Island Terminal in Brunswick, Georgia, via the South Brunswick River. Dkt. No. 39 ¶¶ 1, 17.

GL NV24 owned the Golden Ray, id. ¶ 7, and Hyundai Glovis chartered and managed the vessel, id. ¶¶ 1, 8. “Hyundai Glovis's manager of ocean carrier services was the local vessel operator for Hyundai Glovis and was responsible for getting the vessel in and out of [U.S.] ports. He took over the [Golden Ray] at Freeport, Texas.” Id. ¶ 30. Hyundai Glovis hired G-Marine to operate the Golden Ray, id. ¶ 31, and Norton Lilly to be the Golden Ray's agent in the Port of Brunswick, id. ¶¶ 10, 32.

Norton Lilly developed a “preliminary stowage plan” or “load plan,” which indicated where vehicles would be loaded on the vessel. Id. ¶ 33. Hyundai Glovis reviewed the stowage plan “for the large-scale view of the layout[,] and Norton Lilly conducted the space calculations.” Id. Norton Lilly also “developed the final load plan that included the actual load conditions, including the number, the estimated weight, and the stowage location of vehicles on each deck.” Id. ¶ 34. “G-Marine's safety management team was responsible for the safety management software and procedures used on the [Golden Ray] and the chief officer, employed by G-Marine, calculated stability prior to the vessel getting underway.” Id. ¶ 36.

The Golden Ray carried 4,161 vehicles as it left the Port of Brunswick. Id. ¶ 2. Each vehicle's tank was 25% full of fuel. Id. ¶ 2 n.1. In total, the vessel was transporting approximately 240,000 gallons of diesel fuel and over 86,000 gallons of heavy bunker fuel. Id. ¶ 2.

The Golden Ray proceeded through St. Simons Sound, destined first for Baltimore and from there to the Middle East. Id. ¶ 17. The vessel encountered “cupcake conditions”-“light south wind, calm, good visibility, [and] bright”-in the St. Simons Sound. Id. ¶ 20.

To exit the sound, the vessel turned starboard and “headed right and east out of” the sound. Id. ¶ 21. It then became unstable and leaned starboard. Id. ¶ 22.

The Golden Ray's captain could not right the ship, and it eventually capsized portside down on the edge of the sound. Id. ¶¶ 22-24. Its starboard side protruded out of the water, facing the sky. Id. ¶ 24. “The Golden Ray was grounded in close proximity to environmentally sensitive areas that serve as unique habitat for a variety of species, including fish, shellfish and migratory birds.” Id. ¶ 40.

The vessel immediately began to leak fuel. Id. ¶ 25. “Fires broke out.” Id. ¶ 26. The Golden Ray's capsize was “the largest shipwreck in the coastal United States since the Exxon Valdez in 1989.” Id. ¶ 1.

Several days later, on September 23, 2019, the United States Coast Guard (“Coast Guard”) reported “sporadic discharges” of oil from the ship's hull. Id. ¶ 28. According to the Coast Guard, this oil had spread to nearby shorelines, rivers, and marshes. Id. On October 1, 2019, the ship discharged more fuel, and “oil was observed on Jekyll Island beaches and nearshore waters.” Id. ¶ 29.

By December 29, 2019, “thousands of gallons of fuel, mixed with water” were pumped out of the ocean as part of mitigation efforts, but “thousands of gallons of petroleum products, hazardous substances, and the 4,161 vehicles remained.” Id. ¶ 41.

In January 2020, T&T accepted responsibility for the wreck removal. Id. ¶ 44. Subsequently, problems with the wreck removal occurred, including repeated fires, delay in placement of the environmental protection barrier (“EPB”), and breaking of the cutting chain used to cut the vessel into pieces. Id. ¶¶ 45-52. The “fires caus[ed] discharges of debris and hazardous fluids,” id. ¶ 52, and “[s]everal substantial oil leaks from the wreck . . . made it past the EPB, allowing oil to infiltrate the coastal wetlands, marshlands, estuaries, and beaches,” id. ¶ 53. Salvage operations ended about nine months later, in October 2021. Id. ¶ 54.

After an investigation and hearing, the Coast Guard and the National Transportation Safety Board (“NTSB”) determined that the Golden Ray “was not in compliance with the 2008 Intact Stability Code because the vessel had too much cargo at a high center of gravity, a situation that could have been corrected by ballasting.” Id. ¶ 37. “[T]he [Coast Guard] and NTSB concluded that the vessel was loaded such that it had too many vehicles placed at a high center of gravity,” which rendered it “top-heavy” and placed it “in danger of capsizing since its loading in Freeport, Texas.” Id. ¶ 39.

In response to the capsize, the National Pollution Funds Center (“NPFC”), controlled by the Coast Guard, issued a public notice in accordance with the Oil Pollution Act of 1990 (“OPA”). Dkt. No. 109-1. The Public Notice stated, in relevant part:

In accordance with the Oil Pollution Act of 1990 (33 USC 2714(c)), the M/V GOLDEN RAY, owned by GLNV24 Shipping, Inc., has been named as the source of a discharge of oil into Saint Simons Sound, Georgia on September 8, 2019. This spill impacted the Saint Simons Sound, Georgia and as the owner of the vessel, GLNV24 Shipping, Inc., is accepting claims for certain uncompensated damages and removal costs that resulted from the discharge.... Claims should be in writing, signed by the claimant, for a specified amount; and should include all evidence to support the damages. Claims presented may include claims for interim short-term damages representing less than the full amount to which the claimant ultimately may be entitled. It should be noted that payment of such a claim shall not preclude recovery for damages not reflected in the paid or settled partial claims. Claims should be mailed to the following address:

MR & Associates, LLC, 900 Rockmead Drive, Ste. 150, Kingwood, TX 77339.

Id. at 1.

On June 7, 2021, GL NV24's agent received an OPA claim presentment from Glynn County, which was addressed only to GL NV24. Dkt. No. 44-1 at 1. On March 25, 2022, Glynn County filed suit against Vessel Defendants, Norton Lilly, and T&T Salvage. Dkt. No. 1. Defendant Norton Lilly filed a motion to dismiss. Dkt. No. 28. Glynn County then filed an amended complaint. Dkt. No. 39. Accordingly, the Court denied Norton Lilly's motion to dismiss as moot. Dkt. No. 38. Vessel Defendants and Norton Lilly then filed motions to dismiss the First Amended Complaint. Dkt. No. 44; Dkt. No. 61. After an oral hearing held in December 2022, Glynn County filed another amended complaint, dkt. no. 96, and the Court denied Defendants' motions as moot, dkt. no. 106.

In its Second Amended Complaint, Glynn County asserted the following claims:

1. Strict liability under OPA, 33 U.S.C. § 2702, against the Vessel Defendants (Count I), dkt. no. 96 ¶¶ 55-68;

2. Damages under O.C.G.A. Sections 12-5-20 through 12-5-53 against the Vessel Defendants (Count II), id. ¶¶ 69-73; 3. Negligence under federal maritime law against the Vessel Defendants, Norton Lilly, and T&T Salvage (Count III), id. ¶¶ 74-92;

4. Public nuisance under state law against the Vessel Defendants and Norton Lilly (Count IV), id. ¶¶ 93-122;

5. Trespass under state law against all Defendants (Count V), id. ¶¶ 123-32;

6. Private nuisance under state law against the Vessel Defendants and Norton Lilly (Count VI), id. ¶¶ 133-40;

7. Negligence and strict liability for ultrahazardous activity against T&T Salvage (Count VII), id. ¶¶ 141-51.

Subsequently, the Vessel Defendants and Norton Lilly filed motions to dismiss Glynn County's Second Amended Complaint. Dkt. No. 104; Dkt. No. 109. After further briefing and oral argument, these motions are ripe for adjudication.

DISCUSSION

I. Presentment

The Vessel Defendants take issue with two aspects of Glynn County's presentment: (1) its presentment to “the responsible party,” or lack thereof, 33 U.S.C. § 2713(a), and (2) the “sum certain” the County asserted, 33 U.S.C. § 2701(3). Dkt. No. 109 at 8-12. Glynn County's presentment was sufficient in both aspects.

A. Presentment to the responsible party

The Vessel Defendants argue that Glynn County's OPA claim against them must be dismissed in its entirety for improper presentment. Dkt. No. 109 at 8-12. The OPA requires that “ all claims for removal costs or damages shall be presented first to the responsible party.” 33 U.S.C. § 2713(a) (emphasis added). Proper presentment under Section 2713 is a mandatory condition precedent to a plaintiff filing suit for recovery under the OPA. Boca Ciega Hotel, Inc. v. Bouchard Transp Co., 51 F.3d 235, 240 (11th Cir. 1995) (“We therefore hold that the clear text of § 2713 creates a...