Ceramic Corporation of America, et al. v. INKA Maritime Corporation, NSB Niederelbe Schiffahrtsgesellschaft mbh and Company, et al.
Published: Mar. 6, 1999 | Result Date: Dec. 18, 1998 | Filing Date: Jan. 1, 1900 |Case number: 913281DT Bench Verdict – $600,942
Judge
Court
USDC Central
Attorneys
Plaintiff
Paul J. Marron
(Marron Lawyers APC)
Defendant
John D. Giffin
(Keesal Young & Logan APC)
Experts
Plaintiff
Paul Gow
(technical)
Mitchell S. Stoller
(technical)
Defendant
Klaus Schroeder
(technical)
William Barton
(technical)
Larry Greif
(technical)
Facts
Plaintiffs were numerous shippers of cargo aboard the Merchant Vessel Bremen Senator, as well as the subrogated insurers for the cargo shippers. Defendant NSB was the operator and manager of the Bremen Senator. NSB's officers and crew manned the vessel on the night of the accident. All other defendants had been dismissed pursuant to a prior trial. This was an indemnity case brought by cargo interests (and their insureds) who shipped cargo aboard the M/V Bremen Senator. They had to pay a portion of salvage and "general average" costs after the Bremen Senator allided (ran into) an oil jetty in the Kanmon area of the Japanese Inland Sea on May 15, 1991. The plaintiff cargo interests and their insurers also sought indemnity for additional general average liabilities the cargo interests have not paid but which have been charged to them. The allision occurred when a compulsary pilot from the local Kanmon's Pilot's Association was navigating the vessel through the Kanmon Straits area of Japanese Inland Sea. According to the Bremen Senator's captain and third officer, who were both on the bridge, the pilot gave an incorrect starboard order which had the effect of turning the ship too hard to starboard and on an "inevitable" collision course toward the oil jetty at Mutsure Island. The plaintiffs brought this action against the defendants based on unseaworthiness and negligence.
Settlement Discussions
Although willing to engage in substantive discussions, the plaintiffs did not make a formal demand. Prior to the first trial, defendants offered to release plaintiffs from the $105,592 in unpaid general average. At the re-trial, the sole remaining defendant (NSB) made no offers.
Damages
$600,941.94 plus $105,592.48 in unpaid geneal average liabilities charged against plaintiffs and interest accruing on his sum since 1991
Other Information
The case was originally tried before USDC judge David Kenyon. He found the vessel was not unseaworthy and that NSB could invoke the immunities of a carrier under COGSA. He entered judgment for all defendants. The Ninth Circuit affirmed as to the carrier interests (owner and charterer), but found that NSB did not come within COGSA exonerations and remanded the case for consideration of the negligence claim against NSB. The case was re-assigned to USDC judge Dickran Tevrizian upon remand (Judge Kenyon had retired during the pendency of the appeal). The trial court found that under applicable standards of care in the industry and NSB's own operational guidelines, the master and third officer were responsible for monitoring the pilot's order and correcting the obviously incorrect starboard 15 order. Furthermore, the Bremen Senator's master and third officer allowed the vessel to get into a position where one erroneous order caused an allision, and because of inadequate passage planning failed to recognize escape routes available to the vessel after the starboard 15 order turned the vessel toward the oil jetty. POST-TRIAL MOTION: Denied objection to form of judgment.
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