Monday, September 17, 2018

US Court Judges Freight Forwarder and Chemical Maker Responsible for MSC Flaminia Deaths

Explosion Which Killed Three Should have been Avoided
Shipping News Feature
US – In the second hearing of a potentially three phase case the US District Court for the Southern District of New York has reached a verdict appointing responsibility for the deaths, injuries and damage caused when the MSC Flaminia was struck by an explosion. The tragedy left the container vessel drifting for weeks after the crew abandoned ship. Now the manufacturer of the chemical cargo responsible, and the freight forwarder involved, have been found at fault for the incident.

Early on the morning of 14 July 2012 the ship's alarms sounded and a cloud of smoke rose from one of the holds. When the fire-fighting team rushed toward it and flooded the hold with CO2 the explosion occurred. The accident was a result of the polymerisation of divinylbenzene (DVB), a chemical used in plastics manufacture, and which has a tendency to generate high temperatures when kept warm for long periods.

The three tanks of the chemical had been stored on the New Orleans quayside for some days in the full glare of the sun. They were then situated within the hold adjacent to the vessel’s heated fuel tanks and beside another heated chemical, diphenylamine, all of which contributed to a higher ambient temperature within the hold.

When the DVB self-polymerised it gave off a cloud of smoky vapour which the crew naturally assumed emanated from a fire. The fire-fighting party flooded the hold with the CO2 but it appears in insufficient quantity to neutralise the effect of the vapour which was ignited, probably by a spark generated by the attending fire party.

The Court’s decision exonerated the ships owner, Conti, and both the vessel operator NSB, and ocean carrier MSC which were not at fault and bore no liability. Blame was laid at the door of cargo manufacturer Deltech and NVOCC Stolt Tank Containers B.V. of which 55% was adjudged to be the responsibility of the chemical manufacturer and 45% the freight forwarder. Speaking of the ocean carrier’s position Judge Forrest commented:

”MSC, the ocean carrier, is also not liable for the loss. Although MSC also possessed substantial information regarding the heat sensitive nature of DVB before the Flaminia voyage, it lacked sufficient information that Tanks I, J, and K not only contained a heat sensitive product, but - very importantly - had already been exposed to conditions that transformed them into ticking time bombs.

”MSC’s actions were consistent with industry practice, its prior practices, and the reasonable (versus unreasonable) expectations of the parties. In fact, there was a specific, industry-accepted manner of conveying necessary information regarding safe handling of dangerous goods: a ‘Dangerous Goods Declaration’ (DGD) that Stolt did not effectively utilise. In addition, MSC’s stowage plan was consistent with industry practice and reasonable under normal circumstances.

”Stolt failed to pass information to the ocean carrier, MSC, in an effective manner regarding the dangers of heat exposure to the particular cargo in Tanks I, J, and K; and was responsible for arranging loading the DVB into ISO containers earlier than it should have, and arranging for those to be transported to New Orleans Terminal and deposited in the open air at the terminal, even though it had a reasonable basis to anticipate that the Tanks would sit stagnant for a number of days.

”Deltech is most responsible: It is strictly liable for the loss, and has breached its duty to warn; it is also liable under theories of general negligence and breach of contract. Most importantly, contrary to their own safety protocols developed after prior polymerisation incidents that determined that shipping DVB out of New Orleans should be avoided in warmer months, Deltech booked the shipment of DVB80 out of New Orleans for late June. This fateful decision was the result of - at the very least - a combination of a considered decision at the highest levels of Deltech and managerial errors that followed.

”The impact of this decision was immediately compounded by another decision by Deltech: authorising the ISO containers with the DVB80 to be filled several days earlier than necessary, resulting in the containers sitting stagnant in the hot New Orleans sun (at ambient temperatures that reasonably should have been anticipated to have exceeded the recommended 30ºC (85ºF) for several days longer than necessary.”

The Court also found that Chemtura, shippers of the cargo stowed close to the DVB, bore no responsibility for the incident. There may now be a third trial should the various civil claims and counter claims arising from tragedy not be resolved following the Court’s definitive decision. The original case was heard to establish the physicla reasons for the incident.

The full judgement of Judge Katherine B Forrest can be read here.