In re Complaint of MS “Angeln” GMBH & Co. KG

• Decision Date: 26 March 2014
• Docket Number: No. 10–CV–4820GBD.,10–CV–4820GBD.
• Citation: 10 F.Supp.3d 424
• Parties: In the Matter of the Complaint of MS “ANGELN” GMBH & CO. KG, and Angeln Shipping Company Ltd., as Owner and Bareboat Charterer of the MV Angeln, for Exoneration from Limitation of Liability.
• Court: U.S. District Court — Southern District of New York

10 F.Supp.3d 424

In the Matter of the Complaint of MS “ANGELN” GMBH & CO. KG, and Angeln Shipping Company Ltd., as Owner and Bareboat Charterer of the MV Angeln, for Exoneration from Limitation of Liability.

No. 10–CV–4820GBD.

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

Signed March 26, 2014.

Filed March 27, 2014.

John Devereux Kimball, Blank Rome LLP, New York, NY, for Allianz Global Corporate & Specialty Versicherungs–AktiengeSellSchaft, Amlin Syndicate 2001 at Lloyd's Under Limited Binder JGC 084400, HDI–Gerling Industrie Versicherung AG, Wurttembergische UND Badische Versicherungs–AktiengeSellSchaft, Schwarzmeer UND Ostsee Versicherungs–AktiengeSellSchaft Sovag, Gothaer Allgemeine Versicherung AG, Basler Securitas Vag, Bremen, Victoria Versicherung AG, Hamburg Ergo Versicherungsgruppe AG, Signal Iduna Allgemeine Versicherungs AG, Hamburg, Reaal Verzekeringen, Rotterdam, Lloyds Syndicate, Chaucer, Assikurazioni Generali S.P.A., HDI–Gerling Industrie Versicherung AG, Signal Iduna Allgemeine Versicherungs AG, Hamburg, Allianz Global Corporate & Specialty Versicherungs–AktiengeSellSchaft, Gothaer Allgemeine Versicherung AG.

Gina Maria Venezia, Peter Judge Gutowski, Freehill, Hogan & Mahar, LLP, New York, NY, for Bernuth Lines, Ltd.

Edward P. Flood, Kirk M.H. Lyons, Michael Anthony Namikas, Lyons & Flood, L.L.P., New York, NY, for MSC Mediterranean Shipping Company S.A.

Linda Stephanie Strauss, Coughlin Duffy LLP, New York, NY, for United Insurance Company Limited.

James J. Ruddy, Edward C. Radzik, Lori Jean Quinn, McDermott & Radzik, LLP, New York, NY, for PS International Ltd., et al.

Peter Judge Gutowski, Barbara Grose Carnevale, Gina Maria Venezia, Freehill, Hogan & Mahar, LLP, New York, NY, for Certain Underwriters at Lloyds, Bernuth Lines Ltd.

John Alan Orzel, Carroll, McNulty & Kull, New York, NY, for Panalpina, Inc.

Patrick Carroll Crilley, Patrick Carroll Crilley, New York, NY, for Mitsui O.S.K. Lines, Ltd.

John James Sullivan, Hill, Rivkins & Hayden LLP, New York, NY, for Millenium

Inorganic Chemicals, Inc., M/S Engees, N.V., Sueinder Birbhajan.

John Devereux Kimball, Kate Bea Belmont, Blank Rome LLP, New York, NY, for In the Matter of the Complaint of MS “Angeln” GMBH & Co. KG and Angeln Shipping Company Ltd. as Owner and Bareboat Charterer of the M/V Angeln, for Exoneration from or Limitation of Liability.

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, District Judge:

This case arises from the sinking of the M/V Angeln on February 21, 2010, shortly after its departure from Vieux Fort, St. Lucia. The owner and bareboat charterer of the M/V Angeln (i.e., MS Angeln Gmbh & Co. KG and Angeln Shipping Co.) (collectively “Owners”) commenced a limitation proceeding seeking to limit their collective liability related to the vessel's sinking (ECF Nos. 1 & 4). Many cargo interests filed suit against the Owners, Bernuth Lines Ltd., and Mediterranean Shipping Company, S.A. (“MSC”) for loss of cargo. These actions were consolidated (Id. ). Bernuth Lines then filed claims against Owners for losses, including fuel, equipment and containers, and for indemnity and contribution for exposure to cargo interests (ECF 48). In response, Owners filed counterclaims against Bernuth Lines, and its Miami-based agent Bernuth Agencies, Inc., and MSC seeking recovery of direct damages, and indemnity and contribution for exposure to cargo (ECF 82; 83). After the vessel's Hull Underwriters paid off the vessel owner, they filed a complaint in intervention against Bernuth and MSC seeking recovery of the value of the vessel (ECF 93).

Bernuth moves for summary judgment dismissing the Counterclaims filed by Owners and the Complaint in Intervention filed by the vessel's Hull Underwriters, against Bernuth for certain losses from the sinking of the M/V Angeln (ECF 174). In a separate motion, MSC also moves for summary judgment dismissing the Counterclaims filed by Owners and the Complaint in Intervention filed by Hull Underwriters against MSC for certain losses from the sinking of the ship (ECF 168). Bernuth and MSC's motions are GRANTED.

BACKGROUND

Bernuth Lines operated an inter-island container operation that serviced a variety of islands in the Caribbean and included shipments brought in by feeder vessel from the U.S. (principally Miami) and overseas ports (Decl. of Peter Gutowki (“Gutowski Decl.”) Ex. 30; Gutowski Decl. Ex. 31 Davis Tr. 34–35). Bernuth Agencies is the alleged guarantor of Bernuth Lines (ECF 82, Owners' Counterclaim).

MSC is a large Switzerland-based ocean carrier that transports hundreds of thousands of containers throughout the world on a yearly basis, via a fleet of owned and chartered vessels (MSC Supp. Mem. 2). MSC entered into an agreement with Bernuth permitting MSC's containers to be carried aboard Bernuth vessels, including the M/V Angeln (Id. ).

The M/V Angeln was under the command of Captain Joseph Fijol at the time of casualty (Bernuth Supp. Mem. 4, 6). The Chief Officer was Peter Chodurski (Bernuth Supp. Mem. 6). Both the Captain and the Chief Officer were employed by and responsible to the Owners. The M/V Angeln was chartered by Bernuth Lines from Angeln Shipping Co. under a time party charter (Gutowski Decl. Ex. 2).

Two provisions of the time charter are at issue.

Clause 8 of the time charter provides:

The Captain (although appointed by the Owners) shall be under the orders and directions of the Charterers as regards employment and agency: and Charterers are to perform all cargo handling (including lashing, unlashing, securing, stowage, tallying, dunnage) at their expense under the supervision of the Captain, who is to sign the bills of lading for cargo as presented in conformity with mate's or tally clerk'sreceipts. (Bernuth 56.1 Pl. Stmt. ¶ 64, added language italicized, strikethrough added).

Clause 75 of the time charter provides:

Prior to loading, charterers or their agents shall furnish the master in good time, before cargo operations with shippers' declared weights for containers. Charterers to be responsible for any damages, consequences, delays and expenses as may arise in port or at sea from lack of container weights and/or discrepancies between manifest and actual container weights. (Bernuth 56.1 Pl. Stmt. ¶ 64).

Shortly after the M/V Angeln arrived at St. Lucia on February 21, 2010, Bernuth's local agent came aboard and provided the Chief Officer with an updated list of containers that were to be loaded along with cargo weights as declared by the shipper (Gutowski Decl. Ex. 14, Ex. 3, Fijol Tr. 454). Owners and Hull Underwriters claim that there were discrepancies between the weights provided and the actual weights (See generally Bernuth Opp. Mem.). They claim that the weights of the containers loaded in Miami by Bernuth on those vessels were misdeclared and that Bernuth's method for determining the weights of the containers loaded in Miami was grossly negligent, and lacked uniformity, regulation and accuracy (Bernuth 56.1 Pl. Stmt. ¶ 66). Owners and Hull Underwriters point to four potential reasons for the discrepancies: (i) Bernuth's crane operators disregarded the actual weights shown on the crane scale and instead estimated the weights shown; (ii) Bernuth's crane operators communicated weights to the setevedore formen by using hand signals; (iii) Bernuth's crane operator's sometimes did not factor in the estimated weight of the cables when reporting weight; (iv) Bernuth's stevedore foremen estimated and recorded the weight of containers based on visual observation alone, without the use of a scale (Bernuth 56.1 Pl. Stmt. ¶ 66).

The Chief Officer relied on the container list to generate a loading plan that would result in a stable vessel (Bernuth 56.1 Def. Stmt. ¶¶ 35–36). When he was unable to achieve suitable stability, he advised the Captain against loading the cargo (Gutowski Decl. Ex. 4, Chodurski Tr. 532–34; Bernuth Opp. Mem. 9). Captain Fijol directed that all cargo be loaded nonetheless (Gutowski Decl. Ex. 4, Chodurski Tr. 534; Ex. 6 Syber Tr. 110; and Ex. 20 Syber Stmt. 1; Bernuth Opp. Mem. 9–10). As loading progressed, the vessel began to take severe lists with each new container (Bernuth 56.1 Def. Stmt. ¶¶ 48–52). Some crew members were alarmed by the amount of time needed to correct one of these deep lists and eventually donned life jackets and disembarked (Gutowski Decl. Ex. 6, Syber Tr. 350–53; Ex. 20 at 2).

Toward the end of loading, the ship's Captain ordered a discharge of two 40–ft containers from their position on the deck and replaced them with two 20–ft containers still on the dock (Gutowski Decl. Ex. 3, Fijol Tr. 495–96, 511; Bernuth Opp. Mem. 10). Even with this change, the vessel's stability computer indicated that the vessel was in peril (Gutowski Decl. Ex. 4, Chodursky Tr. 587–96). Nonetheless, Captain Fijol directed that the vessel depart (Gutowski Decl. Ex. 4, Chodursky Tr. 598–99). At this point, the vessel had a starboard list, was over its statutory marks (its load line being submerged) and was positioned such that it was down by the head (Bernuth 56.1 Def. Stmt. at ¶ 57).

Late in the evening on February 21, 2010, the M/V Angeln departed from St. Lucia (Bernuth 56.1 Def. Stmt. at ¶ 57). Barely a mile outside the port, the Angeln rolled over and sank in calm weather (Id. at ¶ 58). The crew escaped but the vessel and all cargo were a total loss (See ECF 1, Limitation Complaint ¶¶ 9–11).

The vessel's stowage computer and hard drive were retrieved from the sunken ship and sent to Norway for data retrieval (Bernuth Supp. Mem. at 15). The loading plan was replicated in the salvaged hard drive (Gutowski Decl. Ex. 4, Chodursky Tr. 566). The loading plan confirmed the dire stability results (Id. ).

Bernuth moves for summary judgment dismissing the Counterclaims filed by Owner and the Complaint in Intervention filed by Hull Underwriters. They argue that (i) the vessel sank because it was unseaworthy; and (ii) Owners and Hull Underwriters' tort and breach of contract claims lack the requisite...