Norwegian Bulk Transport v. International Marine, 06-31060.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Per Curiam
• Citation: 520 F.3d 409
• Parties: NORWEGIAN BULK TRANSPORT A/S, Plaintiff-Appellant, v. INTERNATIONAL MARINE TERMINALS PARTNERSHIP, Defendant-Appellee.
• Docket Number: No. 06-31060.,06-31060.
• Decision Date: 06 March 2008

520 F.3d 409 NORWEGIAN BULK TRANSPORT A/S, Plaintiff-Appellant,
v.
INTERNATIONAL MARINE TERMINALS PARTNERSHIP, Defendant-Appellee. No. 06-31060. United States Court of Appeals, Fifth Circuit. March 6, 2008.

John Herr Musser, V (argued), Peter Brooks Sloss, Charles Lewis Whited, Jr., Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Plaintiff-Appellant.

Thomas P. Diaz (argued), Liskow & Lewis, New Orleans, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, STEWART and PRADO, Circuit Judges.

[520 F.3d 410]

PER CURIAM:

The judgment of the district court dismissing plaintiff-appellant's complaint is affirmed for the reasons given by the district court in its excellent Order and Reasons entered August 31, 2007, which we adopt. A copy of the Order and Reasons is attached hereto.

AFFIRMED. Costs shall be borne by appellant.

ATTACHMENT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA NORWEGIAN BULK TRANSPORT A/S

VERSUS

INTERNATIONAL MARINE TERMINALS PARTNERSHIP AND IMT STEVEDORES CO.

CIVIL ACTION NO. 05-1978 SECTION "R" (3)

ORDER AND REASONS

This is an action brought by Plaintiff, Norwegian Bulk Transport, A/S, against Defendant, International Marine Terminals Partnership, for breach of a maritime contract and tort. Both parties have filed cross motions for summary judgment in this matter. For the following reasons, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's cross-motion.

I. BACKGROUND

Plaintiff Norwegian Bulk Transport is a foreign vessel operator based in Bergen, Norway. On March 19, 2004, NBT entered into a time charter agreement with Bulkhandling Handymax, AS, an entity located in Oslo, Norway. The agreement called for NBT to become the time charterer of the shipping vessel, M/V UNTERWALDEN, upon delivery by its owners, Bulkhandling. After the voyage, but not by a specific time, the vessel was to be returned to its owners at a safe port anchor on the Mississippi River, most likely Nine Mile Anchorage. (Def.'s Ex. B, at Clause 75). As part of the agreement, NBT agreed to pay Bulkhandling $28,750 per day including overtime for use of the vessel.

On the same day that NBT signed the time charter agreement with Bulkhandling, NBT entered into a voyage charter agreement with Eramet Comilog North America, Inc., under which Eramet would use the vessel for the transportation of about 40,000 metric tons of manganese ore. The ore was to be delivered to the location of Defendant International Marine Terminals Partnership. IMT owns a dry bulk cargo offloading and transfer facility on the banks of the Mississippi River near Myrtle Grove, Louisiana. At the time, IMT and Eramet were already parties to a transfer agreement that called for IMT to offload ore from Eramet's vessles to open barges at a rate of 12,000 metric tons per day. (Def.'s Ex. D). The transfer agreement also stated that "IMT will reimburse Eramet for vessel demurrage incurred resulting from IMT's failure to perform as listed above." (Id.).

The parties agree that on May 2, 2004, the M/V UNTERWALDEN arrived at the IMT Terminal in Myrtle Grove at 6:00 a.m. The parties further agree that IMT began offloading manganese ore at 6:45 p.m. that day and finished at 1:40 a.m. on May 5, 2004. Because the M/V UNTERWALDEN was carrying 39,755.42 metric tons of manganese ore, the transfer agreement between IMT and Eramet required IMT to complete offloading operations and any necessary repairs within 3.31 "lay days" in order to fulfill its contractual obligations. (Decl. of Scott C. Becnel, at ¶ 4). IMT

520 F.3d 411

used only 2.28 days to finish offloading the vessel, thus 1.03 lay days remained under the transfer agreement.

At some point during the offloading of the vessel, IMT caused the vessel to be damaged. IMT started to make necessary repairs while the vessel was still docked at Myrtle Grove. After completion of the offloading, the captain of the vessel asked IMT to permit the vessel to leave IMT's dock and travel to Nine Mile Anchorage. IMT agreed to this request because it could complete the repairs at Nine Mile Anchorage.

At 3:35 a.m. on May 5, 2004, the M/V UNTERWALDEN departed for Nine Mile Anchorage, where it arrived at 6:30 a.m. that same day. Upon arrival at Nine Mile Anchorage, the vessel took on bunkers (i.e., fuel), a process that it completed at 12:40 p.m. that afternoon. IMT personnel finished the repair work at 9:25 p.m. At this point, .20 lay days remained under the transfer agreement. If the time required to sail to Nine Mile Anchorage and to take on bunkers is not included, .57 lay days would have remained under the transfer agreement at the time IMT finished the work it was contractually obligated to perform. Eramet has not invoked the demurrage clause in its Transfer Agreement with IMT.

NBT sued IMT, asserting that the repairs done by IMT at Nine Mile Anchorage prevented NBT from returning the vessel to its owners, Bulkhandling, at 6:30 a.m. when the vessel first arrived at Nine Mile Anchorage. As a result, NBT allegedly incurred expenses of $19,680.79 for the additional 14 hours and 55 minutes of charter hire that it was charged before it returned the vessel to its owner at 9:25 p.m. Both IMT and NBT now move for summary judgment.

II. TIMELINESS

As an initial matter, plaintiff opposes defendant's motion for summary judgment on the grounds that it is untimely. The Court required pretrial motions in this action to be filed and served in sufficient time to permit them to be heard no later than July 26, 2006. Under Local Rule 7.2E, all civil motions must be filed "not later than the fifteenth day preceding the hearing date." Plaintiff contends that all motions had to be filed by July 11, 2006.

Rule 16 of the Federal Rules of Civil Procedure gives this Court broad discretion over scheduling matters. (See Fed. R.Civ.P. 16(b)). Under the Court's scheduling order, the motion for summary judgment was due by July 11,...