United States District Court, S.D. Florida
SMITH UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant Bodin Oil
Recovery, Inc.'s Motion for Summary Judgment, filed on
June 18, 2019 (ECF No. 93) ("Motion"). Plaintiff
Seaboard Marine Ltd., Inc. filed a Response in Opposition on
July 2, 2019 (ECF No. 96) ("Response"), and Bodin
Oil Recovery, Inc. filed a Reply on July 10, 2019 (ECF No.
99) ("Reply"). The Court has carefully reviewed the
Motion, all supporting and opposing submissions, and the
record as a whole. For the reasons set forth below, the
Motion (ECF No. 93) is GRANTED.
matter arises from a pro forma marine bill of lading
bearing booking number 3748683 A (ECF No. 1-2) ("Bill of
Lading" or "Bill"), which was issued for the
overseas transport of two containers of used motor oil. The
Bill of Lading lists the names of three corporations:
Seaboard Marine Ltd., Inc., Trinpak Packaging Co. Ltd., and
Bodin Oil Recovery, Inc (id.). Seaboard Marine Ltd.,
Inc., is the Florida trade name for Seaboard Marine Ltd., a
foreign corporation engaged in the business of transporting
goods internationally by water (ECF No. 105 at 2 ¶ 1)-
Trinpak Packaging Co. Ltd. is a foreign corporation engaged
in the business of selling and exporting petrochemical
products including used motor oil (id. at ¶ 4).
Bodin Oil Recovery, Inc. is a Louisiana corporation engaged
in the business of used oil recycling (id. at ¶
5). The Bill identifies Seaboard Marine Ltd., Inc.
(hereinafter "Seaboard") as the carrier, Trinpak
Packaging Co. Ltd. ("Trinpak") as the shipper, and
Bodin Oil Recovery, Inc. ("Bodin Oil") as the
consignee (ECF No. 1-2). The Bill is unsigned by any party
(id.). The Terms and Conditions to the Bill of
Lading require that consignees and shippers, both classified
as "Merchants" under the Bill, must be held jointly
and severally liable to the carrier for the payment of all
charges and for the performance of all obligations under the
Bill (id. at 2). The Bill requires that
"Merchants" must "pack [cargo] in a manner
adequate to withstand the ordinary risks of Carriage, "
and that they shall be held liable for "all loss or
damage of any kind whatsoever, including but not limited to,
contamination, soiling, detention and demurrage before,
during and after the Carriage of property" (id.
25, 2014, Trinpak sent Bodin Oil a proposal via email for the
sale of used oil by Trinpak to Bodin Oil, memorializing a
prior phone call (ECF No. 62-7 at 6). Bodin Oil did not
respond to this proposal. On July 7, 2014, Trinpak booked
transportation with Seaboard Trinidad, Ltd. ("Seaboard
Trinidad"), a Trinidadian corporation and Seaboard's
agent, in order to ship oil overseas (ECF No. 93-3 at 6-7).
Trinpak alone arranged for all of the shipping of the cargo
(ECF No. 107-1 at 24:14). The booking slip provided to
Seaboard Trinidad by Trinpak does not identify Bodin Oil, as
consignee or otherwise (id.). Trinpak sent an
invoice for $20, 224.00 to Bodin Oil on July 9, 2014,
addressing its June 25, 2014 sale proposal (ECF No. 62-7 at
7). Bodin Oil did not respond to or pay the amount listed on
Trinpak's invoice (ECF No. 105 at 3 ¶ 9). To date,
Bodin Oil has never purchased used oil from Trinpak
(id. at ¶ 10).
18, 2014, Seaboard issued the Bill of Lading based on
information it obtained from Seaboard Trinidad (ECF No. 1-2;
ECF No. 105 at 3 ¶ 12). The Bill identifies for shipment
two containers of used motor oil, including container number
SMLU 2604408 which was loaded with one Flexibag (a large
reinforced bag designed to carry liquids in bulk) containing
6, 400 gallons of used motor oil ("the Container")
(ECF No. 1-2). Prior to creation of the Bill, Seaboard had no
communication with any representative from Bodin Oil, nor did
it possess any documentation stating that Bodin Oil was the
owner or importer of the cargo (ECF No. 93-1 ¶ 2).
Container was loaded aboard the M/V Sandwig at the
Port of Point Lisa, Trinidad, which departed on July 18, 2014
for Kingston, Jamaica, with a final destination of Louisiana
(ECF No. 105 at 3 ¶ 18). During the voyage, the
ship's crew noticed what it identified as oil in the hold
of the vessel where the Container was held prior to the
ship's arrival in Kingston (id. at ¶ 19).
Upon arrival in the transshipment port in Kingston, the
container leaking motor oil was discharged from the vessel,
and the leaked motor oil was cleaned up. Bodin Oil never
purchased any of the oil from Trinpak that was on the vessel
(ECF No. 93-3 at 16).
Freight and Shipping Jamaica, Ltd. ("Seaboard
Jamaica"), another agent of Seaboard's, engaged the
services of Morgan Marine and P & I Services
("Morgan Marine") to investigate the source of the
oil in the hold of the ship, who issued a "Final Damage
Report for the Incident Onboard the MV Sandwig" (ECF No.
93-3 at 15-25) ("Damage Report" or
"Report"). The Damage Report certified that, upon
completion of inspection of the drained Flexibag and
Container at issue, the Morgan Marine appointed surveyor and
accompanying team were "not able to pin point the exact
source of the spillage with a high level of accuracy"
(id. at 16). The Damage Report first notes that its
preliminary investigation revealed that there were several
containers in the bay with oil-based products (id.
at 17). The Report further explains that after the vessel
arrived in Kingston on July 21, 2014, Morgan Marine conducted
its preliminary survey (id. at 18). Morgan Marine
determined that based on the color and aroma of the leaked
oil, it was assumed that the leak came from one of the two
containers listed on the Bill of Lading, which were a part of
eight containers total in the lower holds of the vessel
(id. at 19). The Report states that a joint
inspection with Seaboard's representative was conducted
the next day, which led Morgan Marine to confirm that there
was oil under the relevant Container; nonetheless, it notes
that there were no punctures or holes in any of the container
panels, indicating that a foreign item may have penetrated
one of the panels (id. at 22). An inspection of the
Container and Flexibag occurred the following day, which led
Morgan Marine to report that "[t]here was no sign or
cause for the leakage of the bag" and "the joint
team could not locate any area on the Flexibag from which the
oil escaped" (id. at 23-24). Specifically, the
Report states that "[t]he Flexibag was removed from the
container and inspected, still no sign of the source of
leakage observed. The surveyor and the other members of the
joint team could not locate any area on the Flexibag from
which the oil escaped. A further inspection was made of the
container, floor panel but the area remained clean and
without any sign of damage" (id. at 24). The
Report concludes the following:
It was the view of the surveyor that these Flexitanks were
not for the transportation of Petroleum products however
there was no information located on the Manufacturer's
webstate [sic] to support these claims.
The surveyor could not assess the information as to whether
certified personnel stack and stowed the Flexitank used in
the operation. It has been noted that a number of the damages
which occurred with these bags are due to human errors.
After a thorough inspection of the Flexitank the surveyor did
not identify the source of the leak.
The surveyor however is bias to believe the source may have
been the bag's valve.
It is the recommendation of the surveyor to have the
Flexitank be inflated to identify the leak, if any.
(id. at 25). No follow-up report, if it exists, has
been made a part of the record.
February 10, 2015, Seaboard Jamaica's Chief Accountant,
Michael Tyrek, sent a letter to Mr. Chehade M. Boulos of
Trinpak, seeking $156, 842.65 for cleanup and other fees
related to the oil spill (ECF No. 93-3 at 9-10). The letter
does not indicate that it was sent to anyone at Bodin Oil.
The record does not show that Trinpak ever paid Seaboard (or
Seaboard Jamaica) any portion of the sought fees, or
otherwise responded to this letter.
three years later, on June 12, 2018, Seaboard's Vice
President and General Counsel, Stephen C. Irick, Jr., sent a
letter to Trinpak and Bodin Oil, demanding immediate payment
of a slightly less amount of $156, 219.62 for the oil leak
(ECF No. 93-3 at 11-13). Again, there is no record evidence
of any payment or response to this letter by either Trinpak
or Bodin Oil.
month later, Seaboard filed the underlying suit in this Court
against both Trinpak and Bodin Oil on July 12, 2018, alleging
claims of contractual indemnity and breach of contract
against each Defendant (ECF No. 1). Specifically, Seaboard
alleges that Defendants failed to properly describe the
cargo, failed to comply with applicable laws, regulations,
and requirements as mandated by the authorities, and did not
adequately pack the cargo. Trinpak failed to answer the
Complaint and a Clerk's Default was entered against it
(ECF No. 25). Pursuant to the Court's Order on Default
Judgment Procedure (ECF No. 26), Seaboard filed a Notice of
Joint Liability (ECF No. 31), submitting that Trinpak and
Bodin Oil are jointly and severally liable and that Bodin
Oil's liability must be resolved before Seaboard can move
for an entry of default final judgment against Trinpak.
Accordingly, Bodin Oil is the only remaining Defendant. Bodin
Oil filed the present Motion for Summary Judgment on June 18,
2019 (ECF No. 93), which is ripe for adjudication.