IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 6, 2008
No. 06-31060 Charles R. Fulbruge III
Clerk
NORWEGIAN BULK TRANSPORT A/S
Plaintiff - Appellant
v.
INTERNATIONAL MARINE TERMINALS PARTNERSHIP
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before KING, STEWART, and PRADO, Circuit Judges.
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.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NORWEGIAN BULK TRANSPORT A/S CIVIL ACTION
VERSUS NO. 05-1978
INTERNATIONAL MARINE TERMINALS SECTION "R" (3)
PARTNERSHIP AND IMT STEVEDORES
CO.
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.
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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
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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 used
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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
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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
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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, 2006.
Defendant filed the motion on July 25, 2006, and missed the
deadline. The Court nevertheless finds that it is in the
interests of justice to allow defendant to submit the motion
for summary judgment. The period of time between the
deadline and when the Defendant actually filed was minimal,
and the plaintiff does not demonstrate that this two-week
delay significantly prejudiced it in any meaningful way.
Therefore, the Court excuses defendant’s delay in submitting
the motion for summary judgment.
III. LAW AND DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate when there are no
genuine issues as to any material facts, and the moving
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party is entitled to judgment as a matter of law. See FED.
R. CIV. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317,
322-323 (1986). A court must be satisfied that no
reasonable trier of fact could find for the nonmoving party
or, in other words, "that the evidence favoring the
nonmoving party is insufficient to enable a reasonable jury
to return a verdict in her favor." Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). The moving party bears the burden of establishing
that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving
party will bear the burden of proof at trial, the moving
party may satisfy its burden by merely pointing out that the
evidence in the record contains insufficient proof
concerning an essential element of the nonmoving party’s
claim. See Celotex, 477 U.S. at 325; see also Lavespere,
910 F.2d at 178. The burden then shifts to the nonmoving
party, who must, by submitting or referring to evidence, set
out specific facts showing that a genuine issue exists. See
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Celotex, 477 U.S. at 324. The nonmovant may not rest upon
the pleadings, but must identify specific facts that
establish a genuine issue exists for trial. See id. at 325;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1996).
B. Analysis
Defendant IMT moves for summary judgment based on two
independent grounds. First, IMT argues that under Robins
Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927),
maritime law precludes NBT’s claims for economic damages in
this action because NBT does not own the property that
sustained physical damage, nor does it have a contract with
IMT with respect to the property. Second, IMT asserts that
general maritime law precludes NBT’s claims because IMT had
free use of the vessel for the entire period of lay days it
was accorded under the transfer agreement with Eramet.
Robins Dry Dock established the principle that in the
absence of a contract, a time charterer may not recover from
a docking company for loss of use of a vessel damaged by the
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docking company, as the charterer does not own the vessel
and suffers no physical damage to its own property. In
Robins, the employees of a dry dock negligently damaged a
vessel during ordinary maintenance. The vessel was subject
to a charter agreement at the time, so the damage deprived
the charterer of the use of the vessel. The charterer did
not have to pay the vessel owners charter hire while the
repairs took place, but the charterer still sued the dry
dock for loss of use of the vessel as a result of the extra
time needed to repair the damage. The Court denied the
charterer’s claim because it was not an intended beneficiary
of the drydocking contract between the vessel owners and the
dry dock, and because no tort claim arose simply because the
charterer had a contract with the vessel owners. Justice
Holmes wrote, “[A]s a general rule, at least, a tort to the
person or property of one man does not make the tort-feasor
liable to another merely because the injured person was
under a contract with that other unknown to the doer of the
wrong.” Id. at 309.
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The Fifth Circuit continues to apply the Robins Dry Dock
principle to most maritime cases, carving out an exception
only for cases involving a collision between two vessels not
in privity of contract. See Amoco Transport Co. v. SS MASON
LYKES, 768 F.2d 659 (5th Cir. 1985). In Amoco, the SS MASON
LYKES collided with the M/V AMOCO CREMONA, seriously
damaging both vessels. The MASON LYKES was carrying cargo
that was not damaged in the accident, but the cargo had to
be moved from one ship to another in order to continue its
transport, which resulted in higher costs for the cargo
owners. The Fifth Circuit held that the cargo owners could
proceed in tort against the owners of the AMOCO CREMONA to
recover those extra costs, even though the cargo owners
suffered only economic losses and were not owners of the
damaged vessel. Id. at 668. In the collision context, the
Court found that the vessel owner and the cargo owners were
engaged in a common venture, in which they shared the risks
of the voyage, and thus the cargo owners could recover
economic losses. Id.
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Since the Amoco Transport decision, the Fifth Circuit
has acknowledged that it has not recognized exceptions to
the rule in Robins Dry Dock outside of the context of
collision cases. See, e.g., Cargill, Inc., v. Doxford and
Sunderland, Ltd., 785 F.2d 1296, 1298 (5th Cir. 1986) (“Even
if the traditional rule – permitting cargo to proceed
directly against a non-carrying tortfeasor for damages
arising from an injury to the carrying ship - were extended
to non-collision cases, an extension that we do not here
adopt or endorse...”). NBT argues that two decisions in
this district reflect an expansion of the Amoco Transport
exception to non-collision cases. See Ferromet Resources,
Inc. v. Chemoil Corp., 1992 WL 142411 (E.D. La. June 9,
1992) (McNamara, J.); Showa Line, Ltd. v. Diversified Fuels,
Inc., 1991 WL 211527 (E.D. La. Oct. 1, 1991) (Arceneaux,
J.). Those decisions however do not guide the Court’s
analysis in this case. In Ferromet Resources, the
defendant’s actions were intentional, not negligent, and the
defendant was aware of the plaintiff’s contract with the
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owner of the vessel. 1992 WL 142411, at *1. In Showa Line,
Judge Arceneaux relies only on collision cases to find that
the plaintiff may be able to recover for loss of use. 1991
WL 211527, at *1. The plaintiff also alleged fraud and an
intentional tort, “taking the claims out of the Robins Dry
Dock parameters as well.” Id. Because the Fifth Circuit
has not expanded the Amoco Transport decision to cases
outside of the collision context, the Court finds that this
case is governed by the principle of Robins Dry Dock.
Furthermore, the facts of this case closely mirror those
in Robins Dry Dock, making it proper to apply the Robins Dry
Dock principle here. In both cases, the plaintiff was not
the actual owner of the vessel, but instead sought damages
for loss of use of a vessel it had chartered. If anything,
the plaintiff in this case was even more removed from the
defendant than in Robins Dry Dock, since Eramet served as an
intervening charterer between NBT and IMT. Additionally,
just as the dry dock company in that case was unaware of the
existence of the charter party, IMT was also unaware of any
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agreements among other parties besides the transfer
agreement it had with Eramet, an agreement with which IMT
complied.1 (Decl. of Scott C. Becnel, at ¶ 5).
As a result, it is commercially unreasonable to subject
IMT to two different sets of performance expectations – the
one set forth in the transfer agreement that IMT followed,
and another created after-the-fact by a party whose
existence was unknown to IMT during its performance of
offloading operations. Further, NBT had the opportunity to
protect itself against losses of this nature when it
negotiated its voyage charter agreement with Eramet, and it
did not do so.
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IMT complied with its agreement with Eramet because it completed
both offloading and repairs within the 3.31 lay days provided in the
contract. IMT had free use of the vessel during lay time. See, e.g.,
Hellenic Lines, Ltd. v. Commodities Bagging & Shipping, Process Supply
Co., Inc., 611 F.Supp. 665, 671 (D. N.J. 1985); Intercon. Trans. Co. v.
India Supply Mission, 261 F.Supp. 757, 758 (S.D.N.Y. 1966). Thus, when
IMT completed all discharge operations and repairs before the expiration
of the 3.31 lay day period, it complied with its contract with Eramet.
NBT mistakenly relies on NOLISEMENT (Owners) v. Bunge & Born, (1917) 1
K.B. 160, for the proposition that IMT lost control of the vessel once
it completed offloading operations. As the Southern District of New
York noted, that holding was based on a “separate and specific clause
in the charter party,” not on a general principle of maritime law.
Intercon. Trans. Co., 261 F.Supp. at 759.
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Allowing NBT to recover damages against IMT would
vitiate the policy behind Robins Dry Dock, namely the
prevention of widespread rippling out of liability that can
occur if suits in tort are permitted without pragmatic
limitations. The Supreme Court established such a
limitation in maritime law, and this case fits squarely
within it. As such, under Robins Dry Dock, IMT is entitled
to summary judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s
motion for summary judgment and DENIES Plaintiff’s cross-
motion.
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