IN RE M/V MSC FLAMINIA
CORRECTED OPINION AND ORDER: For the reasons set forth above, the motion for summary judgment is GRANTED as to all negligence claims by Stolt, Deltech, and Cargo Interests against BDP, GRANTED as to Deltech's contractual claims against BDP, and DENIED as to Stolts claim that BDPs breach of contract impacted its defenses to liability claims by other parties. The Clerk of Court is directed to terminate the motion at ECF No. 903. (Signed by Judge Katherine B. Forrest on 8/30/2017) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE M/V MSC FLAMINIA
DOC #: _________________
DATE FILED: August 30, 2017
OPINION & ORDER*
KATHERINE B. FORREST, District Judge:
Before the Court is a motion for summary judgment in the complex maritime
action concerning the explosion and fire aboard the M/V MSC FLAMINIA
(“Flaminia”). How and why the explosion occurred, how it was handled, and who
should be liable for any monetary loss, are among the issues being litigated in the
primary action. The motion that is the subject of this Opinion & Order is brought
by a third-party defendant, BDP International Inc. (“BDP”), seeking dismissal of
negligence and contract claims asserted against it by Deltech Corporation
(“Deltech”), Stolt Tank Containers BV (“Stolt”), and certain cargo interests (“Cargo
Interests”). (See, e.g., ECF Nos. 532, 553, 636.)1 Deltech was the shipper for
Divinylbenzene (“DVB”) cargo, which some parties argue was a cause of the
explosion. Deltech used Stolt to arrange for the transportation of the DVB; BDP
had a contractual relationship with Stolt pursuant to which it was involved in the
This Opinion has been edited to reflect the fact that BDP and certain cargo interests had not settled at the time of
this Opinion’s issuance, or by the time that this corrected Opinion was issued.
There were initially two BDP entities party to this litigation: BDP International, Inc. and BDP International, N.V.
BDP International, Inc. is the movant herein; BDP International, N.V. was dismissed from the case in 2014. (ECF
No. 630.) Additionally, certain cargo interests also brought claims against BDP, who moved for summary judgment
on those claims as well. (ECF No. 904.)
creation of an ocean bill of lading or sea waybill for the DVB; Deltech asserts that it
was a third-party beneficiary of that contract. BDP is alleged by both Deltech and
Stolt to have failed to ensure that proper stowage instructions for the DVB were
included on the sea waybill.
For the reasons set forth below, the Court concludes that there are triable
issues of fact with regard to the breach of contract claim brought by Stolt; there are
no triable issues, however, with regard to the causation element of the negligence
claims brought by Stolt, Deltech, and Cargo Interests.2 Accordingly, BDP’s motion
for summary judgment is GRANTED IN PART and DENIED IN PART.
The following facts are undisputed unless otherwise noted.
A. Facts Relating to the DVB Shipment
In June 2012, Deltech contracted with Stolt as the non-vessel-owning
common carrier (“NVOCC”) to arrange for shipment of three containers of DVB
from Baton Rouge, Louisiana (via the Port of New Orleans) to Antwerp, Belgium
aboard the Flaminia. The Flaminia is an ocean carrier chartered by Mediterranean
Shipping Co. (“MSC”) and operated by NSB NIEDERELBE
SCHIFFAHRTSGESELLSCHAFT MBH & CO. kg (“NSB”). At the time of the
events at issue, MSC was the charterer and carrier of the cargo on the Flaminia.
(See BDP Rule 56.1 Statement of Material Facts (“BDP 56.1”) ¶¶ 1-4, ECF No. 900.)
Cargo Interests did not oppose this motion.
Deltech initiated this process by sending an initial booking request to Stolt on
June 8, 2012; Stolt confirmed the booking three days later, on June 11, 2012. (BDP
56.1 ¶¶ 67-70.) Stolt used BDP to process certain documents associated with the
ocean transport, including the ocean bill of lading. (See id. ¶¶ 18, 45.) A bill of lading
generally indicates the shipper and cosignee, the “notify” party (usually a
destination customs broker), a description of the commodity to be transported, the
routing of the cargo (ports of loading, transshipment, and discharge), the gross and
net weight of the cargo, its cubic volume, the container number(s), the vessel name
and voyage number undertaking the carriage, the date of sailing (“on board date”),
and other information. Among the other information that can be included are
stowage instructions. (See BDP 56.1 ¶ 9.)
If dangerous goods are being transported, statute requires that a “dangerous
goods transport” document be provided. A “Dangerous Goods Declaration” or
“DGD” is one type of such document. (See id. ¶¶10-11.) BDP was not engaged to
provide the DGD. (Id. ¶ 64.)
Michael Herrara served as customer representative in the booking
department of MSC in June and July 2012. (Id. ¶ 12.) Herrara testified that
special instructions regarding stowage might be contained in a DGD or would be
negotiated “at a higher level” when rates were negotiated. (Dec. of John A. V.
Nicoletti Ex. 5 at 91:20-24, ECF No. 920-1.) Herrara also testified that that the
Dangerous Goods Department in Antwerp reviews and approves requests to ship
dangerous cargo. (BDP 56.1 ¶ 15.) In fact, DVB shipments could not be in-gated at
the terminal without the dangerous goods declaration and approval by the
Dangerous Goods Department in Antwerp. (Id. ¶ 17.)
Herrara testified that upon receiving the dangerous goods declaration, he
input the information “into the system, and the information would be the consignee,
the UN number, the hazardous class, the packaging group, the proper shipping
name, [and] the weights.” (BDP 56.1 ¶ 19.) Once the cargo is booked,
“documentation” is dealt with in the Documentation Department. (Id. ¶ 23.)
Mario Gonzalez served as the Manager of MSC’s Export Department in June
and July 2012. (Id. ¶ 24.) He testified that this department is in charge of
preparing bills of lading for the ports of New Orleans in Louisiana. (Id. ¶ 25.) The
department is not responsible for receiving DGDs. (Id. ¶ 30.) He further testified
that his department first becomes involved with a shipment “[a]fter the container is
loaded [at the customer facility] and all the information is available.” (Id. ¶ 26.)
Gonzalez testified that after receiving a master bill-of-lading instructions, the
Export Documentation Department would assign a bill-of-lading number to the
shipment “and then they will manifest the bill of lading.” (Id. ¶ 27.) After all of the
“information is entered into the system, [they] will send a draft bill of lading to the
customer for their review.” (Id. ¶ 28 (alteration in original).) After the vessel sails,
the department sends a final bill of lading to the customer. (Id. ¶ 29.)
Dean Kutz is MSC’s Director of Safety, Compliance and Security in the
Hazardous Group. (Id. ¶ 36.) The Hazardous Group checks cargo. It does not have
the bill of lading when it is reviewing and checking cargo. Hazardous cargo is
stowed “in accordance with the requirements of the [relevant statutory code] based
on the class and UN number provided by the shipper.” (Id. ¶ 37.) Michael C.
Deaton of MSC’s Hazardous Group testified that when he is preparing a stowage
plan, draft bills of lading are not available to him. (Id. ¶ 39.) He further testified
that when he is preparing a stowage plan, he does not check bills of lading. (BDP
56.1 ¶ 40.)
Dirk Vande Velde was a dangerous-goods manager at MSC in 2012. (Id. ¶ 41.)
He testified that the “dangerous goods declaration is the most important document
in the whole transport world” and that “it is the only document that his department
wants to see.” (Id. ¶ 16.) He also testified that MSC considers all dangerous goods
to be heat sensitive when it stows cargo. (Id. ¶ 42.) While a warning that
particular cargo was heat sensitive would raise a special concern for him, Vande
Velde testified that special stowage instructions would nonetheless not be required.
(Vande Velde Dep. at 295:15-296:22, ECF No. 766-1 at 77.)
Vande Velde further testified that the procedure for dangerous cargo would
require the placement of a “container in between” the cargo and any potential heat
source regardless of whether MSC had received notice that it is heat sensitive,
unless the cargo was stored in a closed container, which provides sufficient
segregation. (Id. at 296:8-297:9.) This testimony, along with MSC’s Dangerous,
Chemical and Critical Cargo Handling Procedures (Dec. of James W. Johnson Ex.
12, ECF No. 906-3), demonstrate no material factual difference between Deltech
and MSC’s policies regarding the storage of heat-sensitive cargo.
TyTrinia Breaux served as the documentation coordinator for BDP during
June and July 2012. (BDP 56.1 ¶ 44.) That department was responsible for
processing bills of lading to send to carriers for Stolt. (See id. ¶¶ 47, 51.) The final
bill of lading from the carrier is referred to as a “master bill of lading.” (See id.
¶ 58.) The initial step in the creation of a master bill of lading is receipt of
instructions from the Stolt customer. (BDP 56.1 ¶ 49.) Breaux testified that if
there was a particular stowage instruction on a customer’s shipping instruction, it
would be manually entered into BDP’s system. (Id. ¶ 53.) Once all of the
information is entered into the BDP system, the draft bill of lading would be sent to
the carrier. (Id. ¶ 55.) Here, that was to MSC. Breaux testified that neither she nor
anyone else at BDP to her knowledge had any role in preparing the DGD, and she
does not receive a copy of the DGD. (Id. ¶ 64.) In connection with the DVB
shipment at issue in this lawsuit, Breaux testified that she received initial shipping
instructions from Deltech’s freight forwarder, Panalpina. (Id. ¶¶ 85-86.) Those
instructions stated “DO NOT STOW NEAR HEAT SOURCES. STOW ABOVE
DECK FOR TEMPERATURE MONITORING.” (See id. ¶ 91.) She input those
instructions into the BDP system and, when the form was complete, she submitted
it to MSC. (Id. ¶¶ 87, 91.) The stowage instructions were included on the form she
sent to MSC. (Id. ¶ 91.) When MSC sent back to her a master bill of lading, she
neglected to notice that the stowage instructions were not included. (Id. ¶ 99.)
Stolt submitted a preliminary DGD relating to the Deltech DVB shipment to
MSC on June 20, 2012. (Id. ¶ 77.) Stolt submitted a final DGD on June 26, 2012.
(Id. ¶ 80.) The MSC Dangerous Goods Department approved the request to ship the
DVB cargo. (Id. ¶ 81.) Herrara testified that Stolt did not request any special
treatment for the DVB cargo when it booked transport on the Flaminia. (Dec. of
James W. Johnson Ex. 5 at 58:21-24, ECF No. 906-2 at 19.)
The DVB cargo was loaded onto the Flaminia on July 1, 2012 and the vessel
sailed the next day. (BDP 56.1 ¶ 117.) On the morning of July 14, 2012, there was
an explosion in Flaminia’s Hold No. 4. (Id. ¶ 120.)
B. Stolt/BDP Contract
On May 13, 1999, Stolt and BDP entered into a long-term Logistics Alliance
Agreement. (Dec. of John A. V. Nicoletti Ex. 10, ECF No. 920-2.) In pertinent part,
the agreement provided that Stolt and BDP were “partners” who would each serve
different but complementary roles, (id. § 4.7), in providing “logistics services” to the
chemical industry. (§ 2.2.) Services would be provided to “mutually agreed
customers” and would include, inter alia, freight forwarding and the process of
electronic documentation. (§§ 3, 6.1.) Stolt and BDP agreed that, as partners, they
would conduct pricing and contractual term discussions in a collaborative manner.
(§ 4.5.) They agreed to “present a coordinated approach in dealing with specified
and mutually agreed customers.” (§ 6.1.)
This alliance agreement was in place at the time that Stolt worked with BDP
on the Deltech DVB cargo.
RELEVANT LEGAL PRINCIPLES
A. Standard Of Review
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear
the ultimate burden on a particular claim or issue, it need only make a showing
that the non-moving party lacks evidence from which a reasonable jury could find in
the non-moving party’s favor at trial. Id. at 322-23.
In making a determination on summary judgment, a court must “construe all
evidence in the light most favorable to the nonmoving party, drawing all inferences
and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732,
740 (2d Cir. 2010). Once the moving party has discharged its burden, the opposing
party must set out specific facts showing a genuine issue of material fact for trial.
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “[A] party may not rely on mere
speculation or conjecture as to the true nature of the facts to overcome a motion for
summary judgment,” as “[m]ere conclusory allegations or denials cannot by
themselves create a genuine issue of material fact where none would otherwise
exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks
and citation omitted). In addition, “[o]nly admissible evidence need be considered
by the trial court in ruling on a motion for summary judgment[.]” Porter v.
Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013) (internal quotation marks and citation
Only disputes relating to material facts—i.e., “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 (1986); see
also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (stating that the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts”). The Court should not
accept evidence presented by the nonmoving party that is so “blatantly contradicted
by the record . . . that no reasonable jury could believe it[.]” Scott v. Harris, 550
U.S. 372, 380 (2007); see also Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)
(“Incontrovertible evidence relied on by the moving party . . . should be credited by
the court on [a summary judgment] motion if it so utterly discredits the opposing
party’s version that no reasonable juror could fail to believe the version advanced by
the moving party.”).
B. Breach of Contract
The contract between Stolt and BDP is governed by New York law. To
sustain a claim for breach of contract, New York law requires the following three
elements: (1) the existence of a contract; (2) breach; and (3) damages resulting from,
or caused by, that breach. Nat’l Market Share, Inc. v. Sterling Nat’l Bank, 392 F.3d
520, 525 (2d Cir. 2004). Thus, to defeat BDP’s motion for summary judgment on
this claim, Stolt and/or Deltech must raise a triable issue as to at least one element.
Under federal maritime law, a negligence claim consists of four elements:
(1) the existence of a duty of care owed by the defendant; (2) breach of that duty;
(3) a causal connection between the conduct resulting in the breach and plaintiff’s
injury; and (4) actual loss, injury, or damage. See Becker v. Poling Transp. Corp.,
356 F.3d 381, 388 (2d Cir. 2004) (“[F]ederal maritime law incorporates common law
negligence principles generally, and New York law in particular.”); Pearce v. United
States, 261 F.3d 643, 647 (6th Cir. 2001) (The elements of a negligence action under
maritime law are “essentially the same as those under land based common law,”
i.e., “1) the existence of a duty of care owed by the defendant to the plaintiff; 2) the
breach of that duty of care; 3) a causal connection between the offending conduct
and the resulting injury, which is called ‘proximate cause’; and 4) actual loss, injury
or damage suffered by the plaintiff.”) (citing 1 Thomas J. Shoenbaum, Admiralty &
Maritime Law § 5-2 at 170 (3d ed. 2001)).
Whether a duty exists is a threshold inquiry. See Eaves Brooks Costume Co.
v. Y.B.H. Realty Corp., 76 N.Y. 2d 220, 226 (N.Y. 1990) (citing Strauss v. Belle
Realty Co., 65 N.Y.2d 399, 402-03 (N.Y. 1985)). A court’s determination in this
regard depends on “a number of factors including, most notably, the foreseeability of
the harm suffered by the complaining party.” In re Great Lakes Dredge & Dock
Co., LLC, 624 F.3d 201, 211 (5th Cir. 2010); (quoting Consol. Aluminum Corp. v.
C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987)). Courts look to whether the
plaintiff was within the zone of foreseeable harm and whether the accident was
within the reasonably foreseeable risks. See Di Ponzio v. Riordan 89 N.Y. 2d 578,
583 (1997) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (N.Y. 1928)).
While foreseeability is generally a question for the factfinder, a court may make the
determination when the risk was unforeseeable as a matter of law. See Sanchez v.
New York, 99 N.Y.2d 247, 254 (N.Y. 2002). In maritime cases, a harm is considered
foreseeable if the harm that occurred is of the general sort that “‘might have been
anticipated by a reasonably thoughtful person, as a probable result of the act or
omission, considering the interplay of natural forces and likely human
intervention.’” Great Lakes Dredge & Dock, 624 F.3d at 210 (quoting Consol.
Aluminum Corp., 833 F.2d at 68).
In addition to breach of an existing duty, to defeat summary judgment a
plaintiff must also raise a triable issue as to causation. That is, to establish a claim
for negligence, the breach of the duty must be the legal cause of the harm or injury
plaintiff suffered. Great Lakes Dredge & Dock, 624 F.3d at 213-14; see also
Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992). A “legal
cause” is more than “but for” causation: the breach must constitute a substantial
factor in bringing about the injury. Donaghey, 974 F.2d at 649; see also Thomas v.
Express Boat Co., 759 F.2d 444, 448 (5th Cir. 1985).
As discussed at the outset, Stolt and Deltech have asserted both contractual
and tort claims against BDP. The Court reviews them in turn.
A. The Negligence Claims
Stolt, Deltech, and Cargo Interests have asserted a variety of negligencebased claims. See ECF No. 553 ¶¶ 21-28 (Stolt’s First Cause Action (negligence));
ECF No. 532 ¶¶ 33-37 (Deltech’s First Cause of Action (seeking indemnification
based on negligence)); id. ¶¶ 38-42 Deltechs’s Second Cause of Action (negligence));
id. ¶¶ 49-53 (Deltech’s Fourth Cause of Action (strict liability)); ECF No. 636 (Cargo
Interests’ Claims (various forms of negligence)). Each of these claims fails for the
same reason: There is no triable issue of fact with regard to causation. 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.
No party has 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. As MSC’s Director of Safety,
Compliance and Security testified, the MSC 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. (BDP 56.1 ¶ 37.)
Vande Velde, who served as MSC’s dangerous-goods manager during the relevant
time period, testified that the DGD—not the bill of lading—“is the most important
document in the whole transport world” and that “it is the only document that his
department wants to see.” (Id. ¶ 16.) See also Vande Velde Dep. at 295:15-296:22.
Therefore, 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
B. Stolt’s Contract Claim
The law is clear that damages resulting from breach of an obligation is an
element of any contract claim. See Nat’l Market Share, 392 F.3d at 525. This legal
proposition forms the basis for BDP’s principle argument in support of summary
judgment dismissing the contract claims.
Stolt’s contract claim against BDP asserts two separate types of damage
arising from BDP’s breach: (1) improper stowage of the DVB and thus the casualty
aboard the vessel, and (2) deprivation of a defense Stolt might have vis-à-vis other
parties in the main action. ECF No. 553 ¶¶ 33-34. For the reasons discussed above,
there is insufficient record evidence to support a triable issue on the first argument:
There is simply no evidentiary basis to conclude that the omission of the heat
warning from the bill of lading contributed in any way to the casualty aboard the
vessel. Indeed, the evidence is to the contrary. However, the second argument does
have legal and factual support that provide a basis for the claim to proceed.
The contract between Stolt and BDP provides that BDP would perform
certain document processing duties in connection with customer assignments.
Proper and adequate performance of such duties is implicit in that agreement.
Failure to notice the omission of the heat warning from the master bill of lading
amounts to a breach of that duty. Had the heat warning been included on the bill of
lading, Stolt may have had certain defenses available to it. As Stolt argues, “those
failures directly resulted in the instructions not being an express term of the
contract of carriage.” (Stolt Mem. in Opp. at 13, ECF No. 918 at 18). Had the
instructions been on the bill of lading, Stolt may have had a complete (or partial)
defense to the claims against it. (Id. at 12.)
Given the Court’s conclusion regarding causation (i.e., that the lack of heat
warning was not causally related to the casualty), it is frankly unclear how Stolt
could expect a defense based on such instructions therein to be successful. That
does not mean, however, that the inclusion would not have had value. It is plain
that the lack of heat instructions on the bill of lading has provided parties with
arguments that they otherwise would not have had in this litigation, and that
defending against such arguments has required the expenditure of resources and
increased litigation risk. Under such circumstances, the Court finds that Stolt has
sufficient support for damages relating to the breach to allow the claim to proceed to
C. Deltech’s Contract Claim
Deltech’s First and Fifth Causes of Action against BDP (asserted as a thirdparty claim) assert contact claims. The First Cause of Action is cast as one for
indemnification and contribution based on, inter alia, BDP’s breach of contract. In
this claim, Deltech asserts that the breach of contract, inter alia, caused or
contributed to the casualty on board the vessel and that if it is ultimately held
liable, then BDP should indemnify or contribute to any sums recovered. (ECF No.
532, ¶¶ 33-37.) Deltech neither specifies the contract breached nor its position with
regard to it.
Deltech’s Fifth Cause of Action claims is cast as a breach of the contract
between Stolt and BDP, with Deltech in the position of a third-party beneficiary.
(Id. ¶¶ 54-61.) Deltech alleges that if it is found to have liability for the casualty,
then BDP’s actions in breach caused or contributed to such casualty.
In its papers in opposition to BDP’s motion for judgment, Deltech identifies
the Stolt/BDP contract “whereby BDP contracted to perform freight-forwarding
duties for Stolt” as the operative one, the breach as a failure to properly prepare the
bill of lading, and asserts its position as a third-party beneficiary. (Deltech Mem. in
Opp. at 5, ECF No. 916.) Deltech argues that BDP’s failure to notify Deltech of
MSC’s elimination of the heat warning from the bill of lading foreclosed Deltech’s
opportunity to ensure that MSC accepted the warning as a condition of carriage, or,
if not, to make alternative carriage arrangements.
As a threshold issue, in order for Deltech to take the first step in avoiding
summary judgment on BDP’s contract claim, it must raise a triable issue as to
whether it is a third-party beneficiary to the agreement BDP had with Stolt. In the
absence of such status, Deltech’s claim fails to show the required first element:
existence of an agreement. See Nat’l Market Share, Inc., 392 F.3d at 525. Based on
the record before the Court, there are sufficient issues to raise a triable issue on this
question. As the claim fails at the next step of the analysis, the Court does not
dwell long on this issue except to note that record evidence supports Deltech’s
argument that it was a disclosed principle. In addition, the Stolt/BDP contract is
cast as an “Alliance Agreement”, and explicitly acknowledges that the parties shall
work as “Partners” for “mutually agreed customers.” (Dec. of John A. V. Nicoletti
Ex. 10, ECF No. 920-2 at 3-4.) The contract anticipates that Stolt would accept
work from third parties such as Deltech, and utilize BDP as its “partner” in
performing such work. Under the totality of circumstances in the record on this
motion, the Court concludes that there is a triable issue on this element.
For purposes of this motion at least, BDP does not contest that it failed to
adequately perform its duties under its agreement with Stolt. It is the final
element of a contract claim, causation of damage, that is dispositive in BDP’s favor.
For the same reasons as those discussed above with regard to the negligence claims,
the record evidence fails to support any argument that the omission of the heat
instructions in the bill of lading played any role in the casualty aboard the vessel.
That lack of evidence requires dismissal of Deltech’s contract claim.
The Court notes that there is an important difference between Stolt’s
contract claim and Deltech’s: Stolt’s argument for damages resulting from the
breach were cast in two, alternative ways. First, Stolt alleges the contractual
breach caused (or contributed) to the casualty—an argument that ultimately fails
for lack of support in the record. Second, Stolt alleges separately that the omission
impacts its defenses to liability claims from others. As discussed above, it is this
type of damage that provides a basis for Stolt’s contract claim to proceed. Deltech
has not made a similar allegation. It is for that reason that Stolt’s contract claim
against BDP survives and Deltech’s does not.
For the reasons set forth above, the motion for summary judgment is
GRANTED as to all negligence claims by Stolt, Deltech, and Cargo Interests against
BDP, GRANTED as to Deltech’s contractual claims against BDP, and DENIED as
to Stolt’s claim that BDP’s breach of contract impacted its defenses to liability
claims by other parties.
The Clerk of Court is directed to terminate the motion at ECF No. 903.
New York, New York
August 30, 2017
KATHERINE B. FORREST
United States District Judge
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