In re In re (339 F. Supp. 3d 185, 2018)

United States District Court for the Southern District of Illinois 2018-09-10

Judiciary and Judicial Procedure Shipping Transportation

Citations

Full opinion text

KATHERINE B. FORREST, District Judge:

This is the second of two decisions in the above, large maritime matter that together set forth this Court's liability determinations.

On July 14, 2012, the M/V MSC FLAMINIA (the "Flaminia") was crossing the Atlantic Ocean bound for Antwerp, Belgium. The vessel had departed from New Orleans, Louisiana fourteen days earlier and was loaded with cargo. Early on the morning of July 14, alarms began to sound; a smoky cloud rose from one of the holds; and an explosion followed shortly thereafter. The Court previously found that the explosion was the result of runaway auto-polymerization of cargo consisting of 80% grade divinylbenze ("DVB80"), stowed in one of the holds. See In re M/V MSC FLAMINIA, No. 12-cv-8892 (KBF), 2018 WL 526549 (S.D.N.Y. Jan. 23, 2018) (ECF No. 1447, Corrected Opinion & Order dated January 23, 2018) (hereinafter, " Flaminia Phase I Opinion"); In re M/V MSC FLAMINIA, No. 12-cv-8892 (KBF), 2017 WL 5514525 (S.D.N.Y. Nov. 17, 2017) (ECF No. 1407, Opinion & Order dated November 17, 2017). As a result of the explosion and a fire, three members of the crew were killed, thousands of cargo containers were destroyed, and the vessel was seriously damaged. A number of lawsuits followed, seeking compensation for, inter alia, death, bodily injury, loss of cargo, damage to the vessel, and for contribution and indemnification. Many of the original claims have been resolved, including those alleging wrongful death and bodily injury. The remaining claims are based on theories of negligence, statutory violations, and breaches of contractual obligations.

I. PROCEDURAL HISTORY

Due to the complexity of issues to be decided, and anticipated duration of a single proceeding, the Court divided the trial into phases: a "Phase I" trial that determined the cause of the explosion; and a "Phase II" trial to establish responsibilities. (See ECF Nos. 872, 874, 885.) A "Phase III" trial will follow if an upcoming mediation process does not resolve the remaining damage issues. (See id. ) The Court presided over the Phase I bench trial from September 11, 2017, through September 19, 2017, with closing arguments on September 26, 2017. See Flaminia Phase I Opinion, 2018 WL 526549, at *1. It issued its initial decision on what caused the explosion on November 17, 2017, and a corrected decision on January 23, 2018. See id. From August 13, 2018, through August 29, 2018, the Court presided over the Phase II trial that is the subject of this Opinion & Order.

In Phase I, the Court made factual findings relating to the cause of the explosion aboard the Flaminia. The Court found that auto-polymerized DVB80, a chemical contained in a container aboard the Flaminia, ignited by a spark, caused the explosion and fire. Id. at *30-31. More specifically, the Court found the following facts relevant to this Phase II proceeding:

• The DVB80 was delivered to the New Orleans Terminal ("NOT") in an appropriately oxygenated state. Id. at *2.

• The manufacturer of the DVB80, Deltech Corporation ("Deltech"), made a fateful choice to ship this cargo out of NOT in June. Id.

• Together, stagnant storage under a hot sun at NOT, followed by high ambient temperatures in the hold ("Hold 4") of the Flaminia, caused the DVB80 to auto-polymerize. Id.

• Containers of heated diphenylamine ("DPA"), adjacent to those filled with DVB80 at NOT and in Hold 4, was a substantial contributing factor to the auto-polymerization. Id.

• After alarms sounded aboard the Flaminia on the morning of July 14, 2012, the crew missed a final opportunity to prevent the explosion when, lacking information as to the cause or conditions in Hold 4 (namely that the DVB80 had auto-polymerized and created a smoky vapor cloud) and instructions as to how much carbon dioxide ("CO2") to release to meet those actual (gas) conditions, it failed to release sufficient CO2 to inert venting gases. Id.

• The crew's reasonable response to what they believed was an ongoing fire (not a smoky gas vapor cloud) created a spark that triggered the explosion. See id.

• Dr. Scott G. Davis (an expert on gas explosions whose testimony in this regard the Court credited) concluded that the DVB80 would not have auto-polymerized if (1) it had not sat still in the sun at NOT; (2) it had not been stored next to the DPA both at the terminal and in Hold 4; and (3) Hold 4 had been ventilated and not had high ambient temperatures. Davis also concluded that additional CO2 could have rendered the gas inert and that an ignition event (such as a spark) was necessary to trigger the explosion. Id. at *4.

• Dr. Hans Fauske (also an expert who testified in Phase I) performed useful modelling showing that under normal conditions, DVB80 manufactured according to the same process as that aboard the Flaminia should not have auto-polymerized for 64.9 days. Id. at *6.

Based on these and related findings, the Court found the following substantially contributed to the DVB80's auto-polymerization:

• "The decision to ship the DVB80 out of NOT, which necessitated a longer voyage than would have a more northeastern port and exposed it to undesirable conditions;

• "The fact that the DVB80 was left still on the dock at NOT for 10 days in the sun, in hot weather, and next to a number of tanks of heated DPA;

• "The placement of the DVB80 in Hold 4, where it was stored next to containers of heated DPA and near the ship's heated fuel tanks; and

• "The lack of proper ventilation, leading to hotter-than-typical ambient temperatures in Hold 4."

Id. at *30-31.

II. OVERVIEW OF THE PARTIES' CLAIMS

It is easy to lose oneself in the thicket of claims, cross claims, and counterclaims asserted by an array of parties. However, this Court's factual findings herein render much of this legal positioning irrelevant. As the Court finds that only Deltech and Stolt Tank Containers B.V. ("Stolt") bear responsibility, many legal arguments simply do not matter.

For the sake of the convenience and the sanity of the reader, the Court summarizes the relevant claims and defenses. Claims for lost cargo (the "Cargo Claims"), have been asserted against MSC Mediterranean Shipping Company, S.A. ("MSC"); Conti 11. Container Schiffahrts-GMBH & Co. KG MSC "Flaminia" ("Conti"); and NSB Niederelbe Schiffahrtsgesellschaft MBH & Co. KG ("NSB"). The Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 30701 (note), applies to such claims either by contract or force of law; the relevant contracts are the terms and conditions of the MSC bills of lading and/or sea waybills under which various cargoes were carried aboard the vessel.

A number of parties have asserted tort claims based on theories including general negligence, negligent failure to warn, and strict liability. In this regard, NSB has asserted tort claims against MSC, Deltech, Stolt, and Chemtura Corporation ("Chemtura"); Conti has asserted tort claims against Deltech, Stolt, and Chemtura; Deltech and Stolt have asserted tort claims against MSC, Chemtura, and NSB.

Additionally, two contract claims are at issue: MSC has asserted contract claims against Deltech and Stolt under the operative Sea Waybills and under a Service Contract it has with Stolt; and Stolt has asserted a contract claim against BDP.

Conti has also asserted a "General Average" claim against all parties (ECF Nos. 131, 133); NSB has asserted claims for negligence, indemnity, and contribution against MSC (ECF Nos. 108, 130). Conti and NSB have together asserted claims against Chemtura, Stolt, and Deltech for strict liability for failure to warn, negligent failure to warn, general negligence, negligent misrepresentation, and indemnity.

The defenses available to certain parties are equally complicated. Conti, as the owner of the vessel, and NSB, as ship manager, assert entitlement to various defenses. First, they assert a defense under the Limitation of Shipowner's Liability Act (the "Limitation Act"). 46 U.S.C. §§ 30501 - 30512 ; 3 Benedict on Admiralty § 12 (7th ed. 2018). The Limitation Act's "Fire Statute" specifically exonerates-rather than merely limits-a shipowner and ship manager from liability as to loss or damage to cargo caused by fire on board its vessel unless the fire was caused by the "design or the neglect of the owner." 46 U.S.C. § 30504. In addition, COGSA (the exclusive remedy for a cargo claimant against a carrier, see 46 U.S.C. § 30701 (note) ; Rationis Enterprises Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 587 (2d Cir. 2005) ) contains a "Fire Exception" in Section 4(2)(b). This section provides an additional basis for exoneration when the fire does not result from the actual fault of the shipowner or ship manager and is not caused by privity with the carrier. Finally, the provisions of the bill of lading may (and here do) contractually extend the defenses and limitations of liability provided to a carrier under COGSA to an agent of the carrier (including here the shipowner and ship manager, here, Conti and NSB), through what is known as the "Himalaya Clause." Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 332 (2d Cir. 1993). MSC's bill of lading included a Himalaya Clause in Clause 4.2.

As discussed in the findings below, the Court specifically finds that the fire aboard the Flaminia was not caused by the design or neglect of the owner.

III. THE PHASE II TRIAL: SUMMARY OF FINDINGS

Following a bench trial at which the Court received evidence from a total of 82 witnesses (24 live; 2 by trial declaration only (cross-examination waived); and 56 by deposition designation) and reviewed hundreds of documents as evidence (see ECF No. 1540), this Court has now made final liability determinations. The Court has considered the extent to which the following parties may bear responsibility for the explosion and loss: Deltech, the manufacturer of the DVB80 that auto-polymerized; Stolt, the entity that booked transport aboard the Flaminia and was responsible for trucking the DVB to NOT; BDP, Stolt's Documentation Department; MSC, the ocean carrier; Conti, the owner of the vessel; NSB, its operators; and Chemtura, the manufacturer of the DPA cargo.

In sum, and first with regard to the negligence claims, the Court has determined that 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 polymerization 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: authorizing the ISO containers with the DVB80 ("Tanks I, J, and K") 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 30°C (85°F) ) for several days longer than necessary. These two decisions most directly led to the auto-polymerization. While it is true that other factors contributed, these decisions were by far the most critical. Deltech therefore bears significant responsibility for the losses flowing from the explosion. To the extent proportionality is relevant to later damage calculations, the Court assigns Deltech's portion of liability for these events as 55% of the total.

Stolt, Deltech's non-vessel operating common carrier ("NVOCC") is also strictly liable, breached its duty to warn, and is liable under principles of general negligence and for breaches of contractual obligations. Stolt possessed extensive information regarding the heat sensitive nature of the DVB yet it: (1) 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 (2) was responsible for arranging loading the DVB into ISO containers earlier than it should have, and arranging for those to be transported to NOT 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. Stolt's actions were a significant contributor to the conditions that allowed for additional heating of the DVB and thus the conditions that led to auto-polymerization. Again, to the extent that proportionality is relevant, the Court assigns Stolt 45% of the responsibility for these events.

BDP, Stolt's Documentation Department, is not at fault here. It is true that BDP was under a contractual obligation to Stolt to ensure certain information was contained on the Master Bill of Lading Instructions, and that it failed to do so. However, the evidence at trial established that this breach did not contribute to the loss; it led to no damage. The Court is persuaded that despite Stolt's ex-post arguments to the contrary, no participant in the chain of events would have acted on the information BDP failed to include. Accordingly, BDP did not deprive Stolt of any real defense.

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. Stolt and Deltech are incorrect in their positions that (1) generalized knowledge MSC possessed regarding DVB's heat sensitive nature eliminates Stolt's responsibility to effectively warn MSC about known dangers for these particular ISO containers (out of thousands upon thousands of cargo containers it was carrying) or shifts the burden to MSC, and (2) MSC was "keeping" information it possessed in Antwerp from those in the United States who needed it to properly handle the cargo here at issue. 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 utilize. In addition, MSC's stowage plan was consistent with industry practice and reasonable under normal circumstances. Finally, the actions of the personnel at NOT pre-loading (stowing the DVB80 tanks in the open air and near similarly classed cargo in the terminal yard) were also routine and consistent with its own prior practice as well as industry practice.

The vessel owner (Conti) and its operator (NSB) also bear no responsibility for losses resulting from the explosion. Conti provided a seaworthy vessel. NSB had appropriately trained crew; its decision making regarding the venting of Hold 4 was appropriate; its CO2 system was adequate and deployed in a reasonable manner; opening the manlid was a reasonable, on-the-scene response to developing or expected conditions; and ignition of a gaseous cloud by such act was not a reasonably foreseeable result.

Finally, the Court finds that Chemtura, the entity that shipped DPA cargo stowed close to the DVB, bears no responsibility for any losses. Chemtura's DPA was delivered in good condition and Chemtura acted entirely appropriately and according to what was reasonably expected in light of the foreseeable results of its actions. It was not reasonably foreseeable to Chemtura that its DPA would be stored next to DVB that had, in violation of its own manufacturer's shipping protocols, been loaded early, delivered to an open air position at NOT, and sat there for days longer than it should have. While, as this Court has previously found, the DPA was, to some extent, a contributing heat source to the auto-polymerization, the Court finds that the DPA cargo was properly labelled (and need not, for instance, have been placarded with a red thermometer or described as "molten").

In addition to these liability issues, Stolt and Deltech have separately asserted claims for indemnification and contribution against MSC. The Court finds that the contractual arrangement between Stolt and MSC ultimately leaves financial responsibility for the cargo loss with Stolt and Deltech.

IV. FINDINGS OF FACT

The Court's prior Opinion & Order sets forth the chemical properties of DVB80, so they will not be repeated in detail. For convenience, the Court sets forth limited facts from that Opinion relevant to its decisions in Phase II, and then proceeds to its new findings.

DVB80 is a monomer that, depending on exposure conditions, can undergo heat-initiated polymerization. Flaminia Phase I Opinion, 2018 WL 526549, at *8. Once polymerization starts, the process generates its own heat which results in additional polymer formation. Thus, once begun, the polymerization process is self-sustaining. This gives rise to auto-polymerization. Id. Polymerizing DVB is unstable and potentially dangerous. Customers order DVB in its monomer form; polymerized DVB is undesirable and potentially quite dangerous. Id.

During the process of polymerization a white, smoky cloud of gas may be emitted. Id. This cloud can resemble smoke from a fire. If exposed to an ignition source and a specific amount of oxygen, the DVB gas may explode.

A combination of a chemical inhibitor, p-tert butylcatechol ("TBC") and oxygen, halt polymerization. Id. During the manufacturing process, Deltech adds TBC to the DVB liquid to inhibit polymerization. It also ensures consistent and adequate oxygenation. The induction time or shelf-life of DVB liquid is the time it takes to deplete the TBC and oxygen below a threshold level, allowing auto-polymerization to commence. Id. The temperature of the DVB liquid dictates the consumption rate of the TBC and oxygen. In addition, DVB80 will not ignite unless heated to between 69 and 76.7°C (156°F and 170°F). To ignite the DVB80, vapor and air (oxygen) must be within narrow limits: the DVB80 vapor can only be between 1.1% and 6.2% of the combined vapor/air mixture. Even when these conditions are met, an external ignition source is needed. During Phase I, the Court was persuaded that when the crew lifted the lid covering the access point (the "manlid") to Hold 4 as part of its response to fire alarms in order to insert a hose, resulting friction created a spark. Id. at *9.

Once manufactured, DVB80 is then filled into containers ("ISO containers") for transport. During the filling process, the temperature of the DVB80 is monitored (by insertion of a thermometer into the liquid) to ensure the liquid is appropriately chilled; such monitoring occurred here. Id. at *11-12. Moreover, TBC inhibitor levels and liquid polymer content are checked, and were here. Id. at *11. No deficiencies in Deltech's manufacturing process or physical loading of the DVB80 ISO containers at issue here (Tanks I, J, and K) occurred. Id. at *11-12. The Court found "under normal transit time and temperature conditions," the DVB80 would have arrived safety in Antwerp. Id. at *12. Here, however, normal overall transit times (inclusive of time at the terminal) and temperature were exceeded.

Deltech had experienced two prior auto-polymerization incidents in connection with overseas shipments, both in 2006. The circumstances of these incidents are set forth in the Court's Flaminia Phase I Opinion. Following these incidents, Deltech changed its manufacturing and shipping procedures. The relevant changes to the shipping procedures are discussed in detail below. Deltech has made hundreds of overseas shipments of DVB since 2006, and the only shipment that has undergone runaway polymerization on board a vessel was the shipment aboard the Flaminia in July 2012.

As the Court previously found, Deltech uses several ports and routes for shipping overseas and a voyage from NOT to Antwerp is the longest. Id. at *19. As of 2006, Deltech understood that time-to-destination and temperature exposure conditions risked DVB's stability. Id. Indeed, the maximum number of days in transit from NOT to Antwerp is 31 days, with a median of 16; from Newark, the maximum days in transit is 13 days with a median of 9.5. Id. at *20. As discussed below, in March 2012, Deltech personnel were consulted about shipping DVB80 from NOT to Antwerp. Deltech's Eugene Fluharty, Operations Manager and Vice President of Manufacturing, stated that due to the exposure time, he did not support such a decision, and clearly indicated that shipping out of Newark was safer. Id.

In its prior decisions, this Court found that because Tanks I, J, and K shipped out of NOT, they sat at the terminal in the hot New Orleans sun for 10 days, substantially contributing to the July 14 auto-polymerization incident. Id. at *22.

Deltech protocols clearly indicated that the temperature of DVB should not exceed 27°C (or 80.6°F) for safe shipping. (See, e.g., ECF No. 1485-39, DX 46_004.) Nevertheless, during the time Tanks I, J, and K were at NOT, daytime temperatures reached 33.3°C (92°F) with an average temperature of 29.4°C (85°F). For four days (June 26, 27, 28, and 29), daily temperatures reached 35.5°C to 36.6°C (96°F to 98°F). Flaminia Phase I Opinion, 2018 WL 526549, at *21. At NOT, the physical placement of Tanks I, J, and K at the terminal also exposed them to thermal radiation from the adjacent DPA containers. Id. at *22. The DPA had arrived at NOT in a liquid state with an internal temperature above 53°C (127°F). The DPA was also in ISO containers exposed to solar and radiative heat. Id.

In the Court's Flaminia Phase I Opinion, the Court also reviewed the stowage aboard the Flaminia. ISO containers of DPA and DVB were stored adjacent to one another in Hold 4. Hold 4 was also straddled by wing tanks with heated fuel oil. Id. at *24. The Hold also had mechanical exhaust fans that operated when vents were open. (ECF No. 1471, Moeller Trial Decl., p. 19 ¶ 81.) But during the Flaminia voyage, the vents were closed. Flaminia Phase I Opinion, 2018 WL 526549, at *26.

During the Flaminia's voyage, outside air temperatures were generally in the 80s, that is, above 27°C (80.6°F) with one day in the 15s (60s) (July 12) and a few days in the 20s (70s) (July 10, 11, and 13). The average daily temperature during the Flaminia's voyage was higher than for the five previous trans-Atlantic DVB shipments. Id. at *25.

By July 14, Tanks I, J, and K had been in transit for 23 days-already beyond Deltech's preferred transit time-and for a number of days, the cargo had been exposed to temperatures that exceeded the recommended maximum and were well over 27°C (80.6°F). Id. In addition, the average temperatures in Hold 4 were higher than normal. Id. at *25-26.

The Court also previously found that following the alarms on July 14, 2012, opening the manlid allowed more oxygen into the hold, which likely brought the DVB80 vapors within the narrow concentration range (1.1-6.2%) that allowed it to ignite, and a friction spark in fact ignited the vapors. Id. at *29-30.

A. Regulatory Schemes

There are three interwoven regulatory schemes relevant to the ocean shipment of dangerous goods and to this decision: the Hazardous Materials Code ("HMR"), 49 C.F.R. Parts 100-185 (promulgated pursuant to the Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. § 5101, see 49 U.S.C. § 5103 ); the International Maritime Dangerous Goods ("IMDG") Code (adopted in the United States, see In re M/V DG Harmony, 533 F.3d 83, 88-89 (2d Cir. 2008) ); and the Safety of Life at Sea Convention ("SOLAS"), Nov. 1, 1974, 32 U.S.T. 47 (which the United States has ratified, see Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 793 (9th Cir. 1980) ).

According to SOLAS, there is an obligation to provide "appropriate information on the cargo sufficiently in advance of loading to enable the precautions which may be necessary for the proper stowage and safe carriage of the cargo to be put into effect." SOLAS, Ch. VI, Reg. 2.1 (5th ed. 2009). SOLAS further provides that "[s]uch information shall be confirmed in writing and by appropriate shipping documents prior to loading the cargo on the ship." Id. The "appropriate information" is defined as including "any relevant special properties of the cargo" as well as "all necessary information about the cargo to enable to shipowner or ship operator to ensure that ... the cargo can be safely stowed and secured on board the ship and transported under all expected conditions during the intended voyage." Id. at Reg. 2.2.1. In most instances, the DGD fulfills these SOLAS requirements. (ECF No. 1484, Daum Trial Decl., p. 8 ¶ 35; ECF No. 1489, Ahlborn Trial Decl., p. 15 ¶ 58.) Finally, and crucially, SOLAS provides that the "carriage of dangerous goods in packaged form shall be in compliance with the relevant provisions of the IMDG Code." SOLAS, Ch. VII, Reg. 3 (5th ed. 2009).

The IMDG Code categorizes all dangerous goods into specific classes that are broadly organized according to the type of risk presented by the goods. There are nine classes. Class 9 is for "miscellaneous and environmentally hazardous substance." The DVB here was properly classified as a Class 9 substance.

These Classes are further subdivided under the IMDG Code into specific four-digit identifiers known as United Nations numbers ("UN numbers"). Some UN numbers describe a specific chemical compound or substance (UN 1223, for example, is the UN number for kerosene), while other UN numbers describe only a generic type of substance (such as UN 3082, the UN number for any environmentally hazardous substance). (ECF No. 1481, Downey Trial Decl., p. 4 ¶ 16.) DVB80 is properly designated as UN 3082. The combined result of Class and UN number is that many different chemicals may fall under the classification criteria that is used for the DVB here: Class 9, UN 3082 substance.

It is appropriate to classify dangerous goods under Class 9, UN 3082, if such goods do not present dangers covered by any of the other classes. (ECF No. 489, Ahlborn Trial Decl., p. 13 ¶ 48-49.) Thus, when a good is designated as "Class 9, UN 3082," it is being represented as: not emitting a flammable gas (Class 4.3); not being likely to oxidize (Class 5.1) or explode (Class 1); and not being flammable (Class 2.1, Class 3, Class 4.1), corrosive (Class 8), toxic (Class 2.3, Class 6.1), infectious (Class 6.2), radioactive (Class 7), liable to spontaneous combustion (Class 4.2), or self-reactive (Class 4.1). (Id. ) The Court is persuaded that under normal, reasonably anticipated conditions, the DVB80 is a Class 9, UN 3082 substance.

In addition to this classification system, which is used throughout the transport chain, the IMDG Code sets forth other requirements for the shipping and handling of dangerous goods. Under IMDG Code 1.13, a dangerous good forbidden from shipment is:

Any substance or article which, as presented for transport, is liable to explode, dangerously react, produce a flame or dangerous evolution of heat or dangerous emission of toxic, corrosive or flammable gases or vapors under normal conditions of transport.

Under IMDG Code 3.1.1.5, certain substances, including polymerizing substances, may be forbidden:

These products shall be sufficiently stabilized to prevent any dangerous reaction during the intended voyage. If this cannot be ensured, the transport of such products is prohibited.

The IMDG Code, however, does not always specify which actors must take the various required actions. According to the resulting regulations, "[a] shipment of hazardous materials that is not prepared in accordance with [the regulations] may not be offered for transportation by air, highway, rail, or water." 49 C.F.R. § 173.1(b). The regulations apply to each person who offers or accepts a hazardous material for transportation in commerce. 49 C.F.R. § 171.2. The regulations authorize transportation in accordance with the IMDG Code, 49 C.F.R. § 171.22(a), subject to certain limitations, 49 C.F.R. § 171.22(b), and additional requirements, 49 C.F.R. § 171.25.

Stolt's position in this litigation is that the IMDG regulations did not require the DGDs it prepared for the DVB cargo here to contain more information than Stolt included. (ECF No. 1488, Cario Trial Decl., p. 8-9 ¶ 28.) This position misses the mark. The IMDG regulations do not define the precise parameters of the standard of care under all conditions. For instance, when dealing with general "Class 9, UN 3082" goods of which there are many possible types, the IMDG Code does not define the limits of what information an NVOCC should provide to a carrier for safe handling.

B. Deltech's Experience with DVB Prior to June 2012

DVB has known chemical properties and reacts to certain temperature conditions. A great deal of evidence in both Phase I and Phase II trials related to its heat sensitivity. The primary issue with exposure to heat is not auto-ignition, but rather that (as previewed above) heat consumes oxygen and prolonged heat exposure therefore enhances chances of polymerization. Deltech understood that one way to prevent polymerization was to oxygenate and stabilize it through the addition of the TBC inhibitor. Heat exposure, however, not only consumes oxygen, but also reduces the effectiveness of TBC. A key issue in the safe handling and transport of DVB thus includes careful attention to maximizing the DVB's oxygen and TBC levels at every step. Over the years, and in particular, following the two 2006 auto-polymerization incidents, Deltech developed internal protocols specifically directed at ensuring DVB's safe transport. The development of these protocols, and their violation here, are the first steps in this Court's determination of fault.

As referenced above from the Court's Phase I Opinion & Order, shortly after Deltech had begun shipping DVB to Europe in 2006, it experienced two auto-polymerization incidents: the so-called "Chauny" and "Grangemouth" incidents. During this Phase II trial, the evidence presented largely concerned Deltech's response to these incidents. Following Chauny and Grangemouth, Deltech's President, Robert Elefante, immediately instructed his staff to cease any export shipments pending a full investigation. Deltech then undertook an extensive investigation and made recommendations for enhancements to its manufacturing, filling and shipping methods. (ECF No. 1491, Levine Trial Decl., p. 11-13 ¶¶ 38-45.)

The first piece of formal work product that resulted from Deltech's examination was a February 2007 "DVB Study." (Id. at p. 16-18 ¶¶ 57-64; ECF No. 1491-3, DX 139.) The purpose of the study was to "set the criteria for safe shipping and handling of DVB shipments to Europe." (ECF No. 1491-3, DX 139_003.) It specifically took into consideration temperature exposure on the trip and various shipping routes and stated:

The conclusions are first and foremost directed to the safe handling and storage to prevent any further incidents but also to take into consideration any additional cost that may be required for different options.

(Id. ) The report concluded that DVB was temperature sensitive and should be shipped out of the more northerly Port of New York, located in Newark, New Jersey, during the warmer months (and not New Orleans). (Id. ) The report also recommended ongoing temperature readings be taken during transport when possible, but specifically recognized that "there will be times when readings are not available." (Id., DX 139_004.) The report noted:

[W]e have determined that DVB stability is affected by the level of inhibition, temperature and mixing of the material during storage and transportation. The most important factor in all of this is the average temperature of the material, followed closely by the level of inhibition.

(Id., DX 139_005.) The study also noted certain "Transit Time Considerations":

Especially during the summer time, our objective is to minimize the material's exposure to heat as well as the time the container is out of our control.

(Id., DX 139_0018.) Deltech received a second "DVB Report" in March 2007. (ECF No. 1491, Levine Trial Decl., p. 18 ¶ 64; ECF No. 1491-4, DX 416.) This report contained additional information on the chemical properties of DVB. Like the earlier report, it stated that "[o]xygen is vital to the ability of TBC to inhibit polymerization." (ECF No. 1491-4, DX 416_007.) It further stated that:

In our study of DVB we have determined that DVB stability is affected by the level of inhibition, amount of para isomer present, temperature, and mixing of material during storage and transportation. The most important factor in all of this is the average temperature of the material, followed closely by the level of inhibition. The other factors are not nearly as significant.

(Id., DX 416_010.) The report concluded with a series of Shipping and Handling Recommendations:

DVB has to be handled in a controlled environment where periods without direct care are kept to a minimum typically less than 15-20 days. The 15-20 days is based upon the product being exposed to average daily temperatures in the 75-85 degree F. Should temperatures exceed 85 F then this time without direct care should be shortened.

(Id., DX 416_013.) Additional recommendations included setting up "relay points" during the transport of DVB that were under Deltech's control, increasing the amount of oxygen in the product before even being loaded (or filled) into ISO containers, and, again, shipping out of certain more northern and cooler ports during the warmer months. (Id., DX 416_014-15.)

The outcome of this investigation led directly to the creation of the first in a series of safety-directed shipping protocols. (ECF No. 1491-9, DX 421.) The first such protocol was issued in September 2007. In particular, and as relevant here, it specifically indicated that in light of DVB's heat sensitivity, it should be shipped out of the Port of New York (Newark) and not New Orleans during the summer months. Despite revisions to these protocols, twice in 2009 and again in 2011, this basic recommendation never changed. (See ECF No. 1491-11, DX 342; ECF No. 1491-12, DX 343; ECF No. 1491-15, DX 344.) Notably, shipping out of Newark allowed for (1) a cooler port of departure, (2) therefore cooler temperatures preceding vessel loading (e.g., at the terminal), and (3) a shorter ocean voyage. The Court returns to these protocols below in its discussion of the fateful decision to violate them and ship out of New Orleans and in a manner that guaranteed prolonged heat exposure.

C. Overview of the Timeline of Events

The Court sets forth a basic timeline below to enable the reader to understand how important events were ordered.

• March/April 2012: Zachary Levine, Deltech's Vice President of Commercial Operations, and Tatonya Johnson, a Deltech Customer Service Representative, decided to ship DVB out of New Orleans. Deltech's President Robert Elefante approved this decision. (ECF No. 1485, T. Johnson Trial Decl., p. 6 ¶¶ 22-24.)

• June 2012: This decision to allow DVB shipments from New Orleans remained in place through the booking aboard the Flaminia.

• June 8: Deltech sends Stolt its Booking Request for the DVB to be transported to Antwerp through NOT. (ECF No. 1485, T. Johnson Trial Decl., p. 9 ¶ 31; ECF No. 1485-19, DX 360 (Booking Requests).)

• June 11: Stolt sends to Deltech Booking Confirmations for Tanks I, J, and K. In the first version of one of the Booking Confirmations, the document cutoff date was too early (June 18, not the later-used June 25/26), so later the same day, Stolt resends to Deltech the Booking Confirmations. (ECF No. 1485, T. Johnson Trial Decl., p. 13-14 ¶ 48-53; ECF No. 1485-32, DX 362 (initial incorrect Stolt/Deltech Booking Confirmation); ECF No. 1485-33, DX 363 (Stolt/Deltech Booking Confirmation); ECF No. 1485-34, DX 364 (same); ECF No. 1485-35, DX 365 (same).)

• June 11: Stolt calls MSC to reserve space aboard an MSC vessel. MSC then sends Stolt an MSC Booking Confirmation for each tank. (ECF No. 1479-1, PXs 259, 260, 261 (MSC Booking Confirmations).)

• June 14: Stolt sends a Loading Instruction form to the trucker it will use to transport the DVB to NOT, Boasso Global ("Boasso"). (ECF No. 1482-24, DX 459 (Load Instruction).)

• June 20: Stolt sends to MSC Preliminary DGDs for the DVB cargo. (ECF No. 1479-2, PXs 262, 263, 264 (Initial DGDs).)

• June 20: Deltech's Tatonya Johnson is out of the office and has emergency surgery. (ECF No. 1485, T. Johnson Trial Decl. p. 18 ¶ 69.)

• June 21: Deltech's Ortiz, covering for Johnson, seeks her permission to have Tanks I, J, and K filled. Johnson provides authorization and the Tanks are filled. (ECF No. 1485, T. Johnson Trial Decl. p. 20 ¶ 75.)

• June 21: Stolt's agent, Boasso, brings Tanks I, J, and K to Deltech's Baton Rouge facility for filling with DVB. (ECF No. 1485, T. Johnson Trial Decl. p. 17-18, ¶¶ 65, 68.)

• June 21: Deltech provides the Boasso truck driver with Deltech's Straight Bills of Lading (one for each tank) along with Deltech's Material Safety Data Sheet ("MSDS"). (ECF No. 1485-28, DX 48 (Straight Bill of Lading for Tank I); ECF No. 1485-29, DX 49 (for Tank J); ECF NO. 1485-30, DX 50 (for Tank K); ECF No. 1485-39, DX 46 (MSDS).)

• June 21: Boasso delivers Tanks I, J, and K to NOT and gives NOT Deltech's Straight Bills of Lading (with the attached MSDS).

• June 21: Deltech sends the Deltech Express Bill of Lading Instructions to Panalpina, the freight forwarder working on behalf of Deltech and Stolt. (ECF No. 1485-42, DX

367_002, _006, _010 (Deltech Express Bill of Lading Instructions).)

• June 22: Panalpina, the freight forwarder working on behalf of Deltech, sends to BDP, Stolt, and Deltech the Panalpina Master Ocean Bill of Lading Instructions. (ECF No. 1485-43, DX 368 (Freight Prepaid Express Bill of Lading); ECF No. 1485-44, DX 369 (same); ECF No. 1485-45, DX 370 (same).)

• June 25: BDP for Stolt sends to MSC the BDP/Stolt Master Bill of Lading Instructions ("Master Bill of Lading Instructions"). (ECF No. 1493-15, DXs 469-471 (Master Bill of Lading Instructions).)

• June 25: MSC uses the Master Bill of Lading Instructions to generate its Draft MSC Sea Waybills.

• June 25: MSC sends its Draft MSC Sea Waybill and MSC Freight Invoice for Tank J back to BDP. (ECF No. 976-66, DX 475 (Draft MSC Sea Waybills and Freight Invoices).)

• June 26: Stolt sends to MSC the Final DGDs. (ECF No. 1479-3, PXs 265, 266, 267 (Final DGDs).)

• June 26, 4 pm: Vessel document cutoff date. (See ECF No. 1485-33, DX 363 (Stolt/Deltech Booking Confirmation); ECF No. 1485-34, DX 364 (same); ECF No. 1485-35, DX 365 (same).)

• June 27: MSC sends the Draft MSC Sea Waybills and MSC Freight Invoices for Tanks I and K back to BDP. (ECF No. 976-66, DX 475 (Draft MSC Sea Waybills and Freight Invoices).)

• June 27, 10:55 pm: MSC generates its Load List (the list of which containers will be transported to a particular port on a particular vessel).

• June 28: MSC develops its stowage plan for the cargo aboard the Flaminia.

• June 29: MSC's stowage plan is provided to the stevedores at NOT.

• June 30, 5:24 pm: The Flaminia arrives at NOT in New Orleans.

• July 1, 7:30 am: The loading of the Flaminia is completed and Tanks I, J, and K along with DPA cargo are stowed in Hold 4.

• July 1, 10 am: The Flaminia departs New Orleans bound for Antwerp.

• July 2: MSC sends BDP the Final MSC Sea Waybills ("Sea Waybills"). (ECF No. 1493-43, DXs 476 (Final Sea Waybill for Tank I), 477 (for Tank J), 478 (for Tank K).)

• July 14, 2012: The explosion occurs aboard the Flaminia.

D. Deltech's Relationship with Stolt

Stolt played two roles with regard to the DVB cargo at issue here. First, it acted as an NVOCC, and in that capacity was Deltech's shipping agent and arranged for transport aboard the Flaminia. Stolt also arranged for truck transport (via Boasso) from Deltech to NOT. Together, these roles involved several steps. As detailed below, a customer service representative at Deltech (here, Tatonya Johnson) initiated the process of filling an order by sending a booking request to Stolt; the "booker" at Stolt (here, Erin Bruening), in turn, arranged for trucks (Boasso) carrying empty ISO containers to go to Deltech's manufacturing facility to be loaded with liquid DVB, for those filled containers to then be transported by truck overland to the port (here, NOT). Stolt also arranged for space aboard the Flaminia to Antwerp, Belgium.

A key issue during this trial was whether Stolt exercised appropriate care when it carried out its assigned tasks. It did not. A separate question is whether the result of its failures (the explosion) was foreseeable. It was. The beginning point for this conclusion is based on the nature and quantum of information Stolt had regarding Deltech's DVB product and what would be necessary for its safe transport and handling. Stolt had, in essence, all of the material information Deltech had regarding the heat sensitivities of DVB. Deltech was forthcoming with Stolt and actively sought safe transport.

Stolt had been Deltech's NVOCC for a number of years and had acquired substantial knowledge regarding DVB properties and requirements for its safe transport. In arranging shipping here, Stolt largely ignored that safety information or failed to convey it effectively. Stolt countered this with an argument that, while it may have known of DVB's properties, it was not required to take those into consideration when making transport arrangements because Deltech had not paid for special treatment for this particular shipment. This argument is unpersuasive.

As an initial matter, the fact that heat sensitivity is an essential, non-discretionary characteristic of DVB that does not change by customer or by order necessarily means that all DVB transport must take it into consideration. The most basic requirements for safe carriage do not constitute "special requests." DVB simply cannot be shipped safely unless heat sensitivity is considered from the moment of filling onwards. Thus, and as is evident from the very outset of the creation of the commercial relationship between Deltech and Stolt regarding DVB transport, the immutable fact of DVB's heat sensitivity was embedded in the very concept of getting the product safely from point A to point B.

In all events, the Court is ultimately persuaded that Stolt did not in fact "exclude" or carve out handling that considered DVB's heat sensitivity from its initial vetting of the product for carriage and establishing its basic pricing (referred to as its initial "rate quote"). Rather, the back and forth between Stolt and Deltech at the time they negotiated this initial pricing (as discussed further below) shows that heat sensitive transport was always embedded into the services Stolt was providing or arranging. What Stolt failed to do was implement procedures to ensure that conditions for heat sensitive transport were always considered a basic floor for services provided. It is true that, fortunately and generally, the amnesia regarding basic requirements did not lead to disastrous outcomes. This is largely explainable by the lack of a similar perfect storm of events, and simple good fortune.

In February 2007, Deltech sought a request for a quote from Stolt for the shipping DVB to Europe. (ECF No. 1491-6, DX 418.) Deltech provided Stolt with a list of requirements that would need to be considered in connection with even the most basic quote and informed Stolt that any pricing needed to allow it to "safely ship and handle our DVB 63% and eventually our DVB 80% material." (Id., DX 418_005.) In an email exchange that further set forth fundamental requirements of any quote, Deltech featured the basic point that DVB is heat sensitive and must not heat above 30°C (86°F). (Id., DX 418.) The list of requirements further indicated that because of heat sensitivity, wait time, weather and other heat conditions would have to be part of any transport considerations. (Id. )

An attachment to this email exchange further provided Stolt with a variety of information relating DVB80. Deltech informed Stolt that, with respect to DVB:

Stability is affected by time & temperature and TBC is added to inhibit auto-polymerization. TBC consumes free oxygen to be effective. The higher the temperature and the longer the material is held the more the TBC & free oxygen is depleted.

(Id., DX 418_006.) Additional "requirements" for DVB's transportation were set forth as:

• Coordinate collection to minimize waiting time prior to loading (Target < 4 days);

• Container to be stowed either 'in stack' or below deck to avoid direct exposure to sunlight;

• Container to be stowed away from any heat source (vessel or other container);

• Request temperature to be recorded on board every 24 hours (Appreciate this is not always available);

• Minimize exposure to average ambient temperatures above 27°C (80.6°F) by selecting vessels with routes transiting through ambient areas lower than 27°C (80.6°F) and reducing transit times ...

(Id. )

As part of the rate quote process, Stolt obtained Deltech's Material Safety Data Sheet ("MSDS"). (ECF No. 1490, Sikma Trial Decl., p. 5-6 ¶ 22.) Deltech's MSDS was given to John Cario, Stolt's Hazardous Materials ("HazMat") Officer. (Id. ) The MSDS had significant safety information, including:

Combustible: Hot vapors are very flammable and are heavier than air. Vapors may travel considerable distances to ignitions sources and cause flash fires or explosions.

(ECF No. 1485-39, DX 46_002.)

The MSDS also states:

Unusual Hazards Associated with Fire: Closed Containers of DVB (80%) may build up explosive pressures when exposed to the heat of fires. Closed containers (80%) exposed to heat may begin to polymerize in an exothermic manner leading to auto acceleration and rapid pressure increase and explosion potential.

(Id., DX 46_003.) And with regard to "Storage":

Store in a cool area or refrigerated tank away from high temperatures, hot pipes or direct sunlight. Maintain inhibitor TBC concentration above 1000ppm and maintain oxygen levels to near saturation. Maintain bulk liquid temperature to below 80°F (27°C) ...

(Id. ) Under "Chemical Stability," it states:

Stable under recommended storage conditions. Inhibited with [TBC]. Maintain temperature below 80°F (27°C) ...

And:

Hazardous Decomposition Products: Dependent upon temperature and the presence of other materials.

(Id., DX 46_004.) Finally, the MSDS warns about "Hazardous Polymerization," stating:

Polymerization may occur if material is exposed to excessive heat or catalyzed by mixture with incompatible materials. Hazardous polymerization may occur in the absence of air or if inhibitor levels are not maintained. Polymerization is exothermic and may result in auto acceleration, rapid temperature rise, increased pressure, vigorous venting of container, and fire or explosion if not arrested.

(Id. )

After vetting a product for carriage and agreeing to book it, as Stolt did here, Stolt created an entry for its "rate quote" in its internal AS/400 database. Once a rate quote/basic pricing entry is made in the system, Stolt's operations personnel query that system for pricing information each time a new request to book arrives.

A significant gap in Stolt's internal procedures, and causally linked to the incident here, was its failure to populate the AS/400 database with sufficient information regarding handling DVB80 during transport as to product characteristics. Despite a variety of information Cario had available-and had reviewed as part of Stolt's product vetting-for reasons never entirely clear, Cario limited the information he included in the AS/400 database to DVB's UN number, proper shipping name, class, and packing group. (ECF No. 1605, Cario Trial Test., p. 738-40, 743-51.) Thus, while Cario testified that he had received and read through Deltech's MSDS for DVB, he did not include it. (Id. ) To an outsider, Cario's process was not only odd but downright dangerous. Information from the MSDS was thus rendered irrelevant, and that irrelevancy was carried forward into future cargo shipments. (Id. at p. 737-38, 757.)

In short, Deltech's initial pricing request sought safe transport based on DVB's heat sensitive nature; Stolt knew this, yet failed to include relevant and clear instructions for the database that those in operations handling relied on.

Other Stolt employees responsible for booking the Flaminia DVB80 cargo (apart from Smith) also understood its particular characteristics. Aimee Morton was in Stolt's operations department and was responsible for booking Deltech shipments. (ECF No. 1482, Morton Trial Decl., p. 1 ¶ 4.) In that capacity, Morton regularly interfaced with Smith. (ECF No. 1605, Morton Trial Test., p. 565-66.) She had spoken with Smith about DVB and understood that it was dangerous, heat sensitive cargo. (Id. at p. 566; see also ECF No. 1605, Smith Trial Test., p. 654.) Smith also passed along information he received regarding DVB to others within Stolt. For instance, in September 2007, Smith wrote an email to a number of individuals at Stolt that Deltech wanted to ship DVB from Newark during the summer months in order to keep the product cool "to avoid polymerization." (ECF No. 976-27, PX 313 (Smith Email); see also ECF No. 1605, Smith Trial Test., p. 651-52.) In a 2008 report of a meeting between Smith for Stolt and Deltech, Smith reported on certain information he had learned, including that:

This product can polymerize if exposed to lengthy periods of high temperature (say 25°C plus over 30 days). While there is an inhibitor in this product, without chilling and circulation there is a potential for incidents. Newport [another Carrier] had a major problem on a load destined to R & H in Chauny [France] that began polymerization on a French highway and hazmat teams were called out. Net result is Newport will not load this product any longer. Likewise United / Interbulk had a load polymerization between Antwerp and Grangemouth, same result.... [T]hey refuse to accept further bookings ....

(ECF No. 1486-35, DX 511_002.) The document continues:

Because of the sensitive nature of this product, during the warmer months Deltech moves DVB from Baton Rouge by tank truck to their Newark, NJ storage terminal where they can monitor it.... During the cooler periods, they load iso's directly from Baton Rouge via New Orleans to North Europe.

(Id. ) In March 2009, Smith again wrote to others at Stolt. He stated:

DVB is a very sensitive product and will polymerize if it's subject to prolonged ambient heat causing lack of oxygen in the tank. For this reason, during the winter months (say through early April) it's ok for the product to ex Baton Rouge.... For the warmer months, Deltech keeps a rail car in Newark.... I will update our quotes to Deltech and Antwerp port and make them very competitive.

(ECF No. 976-29, PX 314.)

Despite this extensive body of information, as discussed below, when Stolt received the Booking Request from Deltech regarding the DVB80 cargo destined for the Flaminia and that referenced the very characteristics, Stolt ignored the information. Disaster was a foreseeable result.

E. Stolt's Relationship with MSC

A core issue in this matter concerns what disclosures Stolt did and did not make to MSC regarding the DVB cargo. The Stolt/MSC commercial relationship also plays a key role in establishing a mode of interaction and agreements regarding division of responsibility.

There are two documents that together establish the relevant terms of the Stolt/MSC relationship here: a Service Contract (ECF No. 1475-1, DX 468), and MSC's Sea Waybills for the specific DVB cargo (ECF No. 1493-43, DXs 476 (Final Sea Waybill for Tank I), 477 (for Tank J), 478 (for Tank K) ). The Service Contract between Stolt and MSC was effective as of December 2, 2011. (ECF No. 1475-1, DX 468.) It committed the parties (Stolt/MSC) to carriage of a minimum number of freight units. (ECF No. 1475, J. Johnson Trial Decl., p. 4 ¶ 22.) The Service Contract governed Stolt's shipment of hazardous and non-hazardous bulk materials through MSC. (Id. at p. 4 ¶¶ 24-25.)

F. Shipping the DVB out of New Orleans

A critical event that led directly to the explosion aboard the Flaminia was shipping the DVB80 out of New Orleans in late June. This resulted in Tanks I, J, and K being exposed to unsafe levels of heat. First, shipment out of NOT meant that the product would be deposited into its shipping yard and sit stagnant for at least several days. In addition, NOT was-by definition-in New Orleans, and average temperatures for New Orleans in June could reasonably be anticipated to be higher than those in Newark, New Jersey. Additionally, it was known that the voyage between NOT and Antwerp would take materially longer than from Newark to Antwerp. As it turned out, all of these factors, and others, contributed to the loss.

It is therefore important that Deltech's shipment of DVB out of New Orleans violated Deltech's own carefully developed safety protocols regarding shipping and handling. These protocols, developed after the 2006 polymerization incidents, stated that NOT should be avoided at precisely this time of year. Deltech's shipping instructions in place as of June of 2012, entitled "DVB63/DVB80 Shipping & Logistics," provided that shipments of DVB80 should only be shipped to Europe through the Port of New Orleans before April 16 and after November 14. (ECF No. 1485, T.

Johnson Trial Decl. p. 3-4 ¶¶ 14-15; ECF No. 1485-1, DX 344.)

Deltech's shipment out of NOT traces back to a March/April 2012 considered decision by a combination of its President, Elefante, its Vice President of Commercial Operations, Zachary Levine, and the Customer Service Representative, Tatonya Johnson. Because of certain customer requests, Johnson and Levine sought and received authorization from Elefante to ship DVB80 out of New Orleans after what would previously have been a safe handling cutoff date for shipments of April 16. (ECF No. 1603, Levine Trial Test., p. 469; ECF No. 1491, Levine Trial Decl., p. 31 ¶ 104.) Due to what Levine and Johnson testified was a "miscommunication" between them, Johnson believed that this authorization allowed her to book DVB shipments out of NOT into June. (ECF No. 1485, T. Johnson Trial Decl., p. 4 ¶¶ 16, 30; ECF No. 1491, Levine Trial Decl., p. 31 ¶ 105.) Levine testified that he had not intended the authorization to extend so long, but it is unclear that this view was ever expressed to anyone, including Johnson. (ECF No. 1603, Levine Trial Test., p. 471.) Elefante testified that, had he been specifically asked about whether Deltech could ship DVB80 out of NOT in June, he said "no." (ECF No. 1583, Elefante Trial Test., p. 154.)

What is clear, however, is that in 2012, post-April shipments from NOT had been authorized. Moreover, the fact that shipments were ongoing out of NOT was no secret: information available within Deltech showed the port of embarkation; nevertheless, neither Elefante nor Levine took any particular steps to ensure that NOT would cease to be used. (See, e.g., id. at p. 153-54.) Despite the allowance of DVB shipments out of NOT in violation of safety protocols, Deltech did not require temperature measurement of the product during even initial transit, did not provide for shipment in refrigerated containers, and did not seek to determine stowage conditions at NOT. (ECF No. 1603, Levine Trial Test., p. 469-70.) Allowing June shipments out of NOT without additional safety measures was a clear mistake-as events came to show, the product that was shipped aboard the Flaminia ended up being loaded early, and then sat stagnant in the open New Orleans sun before being loaded aboard a vessel. Deltech bears responsibility for this decision and its foreseeable results.

G. Booking the Shipment

The shipment of DVB80 in Tanks I, J, and K were booked by Deltech's customer service representative, Tatonya Johnson. Consistent with prior practice, Johnson's communications were solely with the NVOCC, Stolt, and not with MSC, the carrier (nor with the vessel owner, Conti, or its operator, NSB). The first step in Johnson's booking process was to email a written booking request ("Booking Request") for the cargo to Stolt. This Booking Request stated that the ocean bill of lading needed to state "Temperature Control Instructions: 'Container to be stowed in stack' or below deck to avoid exposure to direct sunlight." (ECF No. 1485, T. Johnson Trial Decl., p. 12 ¶ 42; ECF No. 1485-19, DX 360 (Booking Requests).)

Johnson testified that she expected that Stolt would convey the handling instructions set forth in the Booking Request to the carrier. (ECF No. 1485, T. Johnson Trial Decl., p. 13 ¶ 47.) That is, she expected that Stolt would include the information to the carrier that the container should be stowed on deck and kept away from heat sources. (ECF No. 1603, T. Johnson Trial Test., p. 269-70.) Her expectation was that this instruction would result in the DVB cargo being kept out of the sunlight. (Id. at p. 270-71.) Stolt did not, in fact, convey these instructions effectively to MSC.

Events following Deltech's issuance of its Booking Request sealed the fate of the DVB aboard the Flaminia. Stolt's process and procedures, along with employee mistakes, resulted in (1) early filling of the DVB into ISO containers (Tanks I, J, and K) and early transport to NOT, and (2) a failure to effectively convey to MSC adequate handling instructions. Two Stolt employees played roles in connection with its side of the booking process: Erin Bruening, the "booker" at Stolt assigned to Deltech; and Aimee Morton, the "operator" at Stolt assigned to Deltech. (ECF No. 1477, Bruening Trial Decl., p. 2 ¶¶ 6-9; ECF No. 1482, Morton Trial Decl., p. 2-3, 10 ¶¶ 9, 11, 33, 34.)

Morton received the Booking Request from Johnson of Deltech. She did not note or pass to MSC Deltech's instructions on the Booking Request (referred to above) indicating that the product was heat sensitive and should be kept out of direct sunlight. Morton recognized that Stolt's booking department had a responsibility to pass along any special instructions to MSC.

Next, Bruening handled the creation of MSC's Booking Confirmations (one for each tank). (ECF No. 1477, Bruening Trial Decl., p. 6 ¶¶ 20-21.) Bruening then emailed the initial Booking Confirmations to Johnson. (ECF No. 1485, T. Johnson Trial Decl., p. 13 ¶ 48.) In general, a booking confirmation sets forth what is referred to as a "document cutoff date," that is, the date upon which paperwork for cargo shipped aboard an ocean going vessel must be received by the NVOCC. (See, e.g., ECF No. 1477-12, DX 362.) However, to finalize such documentation, the cargo must be weighed (and therefore, with respect to DVB, filled into ISO containers). The first Booking Confirmations that Deltech received from Stolt set June 18 as the document cutoff date. (ECF No. 1485, T. Johnson Trial Decl., p. 13-14 ¶¶ 49-50; ECF No. 1485-32, DX 362 (initial incorrect Stolt/Deltech Booking Confirmation).) Johnson specifically noted this date and testified that because of DVB's heat sensitivity, she viewed such a date as too early; the vessel was not scheduled to depart until June 30. (Id. ) Johnson understood that filling ISO containers too early would lead to unnecessarily prolonged heat exposure. As a result, she immediately took the appropriate set of requesting that Stolt change the document cutoff date. (Id. )

Stolt's Bruening responded by creating a second set of Book