Lloyd's Maritime and Commercial Law Quarterly
DANGEROUS KNOWLEDGE
Claudio Bozzi*
In re M/V MSC Flaminia
As familiar products reveal unfamiliar characteristics, and as complex new products posing unknown dangers enter the stream of commerce,1 the interpretation and application of instruments which allocate liability for the carriage of dangerous goods in large-scale maritime litigation are placed under considerable stress.
Facts and proceedings
On 8 June 2012, Deltech Corporation (“Deltech”) arranged for Stolt Tank Containers BV, Stolt-Nielsen USA Inc (“Stolt”) (collectively, “the shippers”) to ship a cargo of 80 per cent Divinylbenzene monomer (“DVB-80”) from New Orleans Terminal (“NOT”) to Antwerp, Belgium. On 21 June 2012, three storage tanks of DVB-80 were trucked to NOT, where they sat for 10 days in direct sunlight in temperatures averaging 85°F and reaching 98°F before being loaded on 1 July 2012 onto the MSC Flaminia (“the Flaminia”), owned by Conti 11 Container Schiffahrts-GmbH & Co KG (“Conti”), and under time charter to MSC Mediterranean Shipping Co SA (“MSC”) (“the carrier”),2 and stowed below deck adjacent containers of heated diphenylamine (“DPA”) in Hold 4 between the ship’s heated bunker fuel tanks.3 Two weeks into the Flaminia’s Atlantic crossing, at 5.42am on 14 July 2012, an explosion and firestorm emanating from Hold 4, which investigators concluded was caused by the autopolymerisation of overheated tanks of DVB-80, cost three seafarers their lives, caused others severe injuries, and resulted in significant damage to cargo and the vessel.4
Extensive litigation ensued. Cargo claimants brought suit against MSC, Conti, NOT, Stolt and Deltech in the District Court for the Southern District of New York (“the Trial Court”)5 and the shippers made claims against the carrier.6 The shippers’ liabilities for the damage caused by the explosion and fire7 were finally determined on 30 June 2023, when the US Court of Appeals for the Second Circuit (Appeal Court) unanimously reversed the Trial Court’s 2018 finding on the shipper’s strict liability for losses, but affirmed by a 2:1 majority, in all material respects, the Trial Court’s ruling on negligent liability, attributing responsibility jointly to Stolt and Deltech at 45 per cent and 55 per cent, respectively.8 The proceeding returned to the Trial Court for the determination of recoverable damages but
* Lecturer, Deakin Law School; Barrister, Victorian Bar.
1. Lisa Baertlein and Anthony Deutsch, “Focus: Ocean shippers playing catch up to electric vehicle fire risk”. Reuters, 29 July 2023 at https://www.reuters.com/business/autos-transportation/ocean-shippers-playing-catch-up-electric-vehicle-fire-risk-2023-07-27/ (last accessed 22/07/2024).
2. In re M/V MSC Flaminia, 2018 WL 4301368, No. 92-CV-8892 (SDNY, 10 Sep 2018) (Phase II) (“Flaminia Phase II”), 5.
3. Ibid, 4.
4. Ibid, 1–2.
5. Ibid.
6. Ibid, 5.
7. Ibid, 9.
8. In re M/V MSC Flaminia (2023) 339 F Supp 3d 185 (2d Cir) (“In re
M/V MSC Flaminia”).
CASE AND COMMENT
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