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Indemnity Insurance Company of North America v. Totem Ocean Trailer Express Inc.

United States District Court, Western District of Washington, Tacoma

February 9, 2015

TOTEM OCEAN TRAILER EXPRESS INC.; M.V. NORTH STAR, her engines, tackle and appurtenances, in rem, Defendants.


BENJAMIN H. SETTLE, United States District Judge.

This matter comes before the Court on Defendants M/V NORTH STAR and Totem Ocean Trailer Express, Inc.’s (“TOTE”) motion for summary judgment (Dkt. 14). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.


On December 30, 2014, Plaintiffs Indemnity Insurance Company of North America and Lynden Transport, Inc. (“Lynden”) (collectively “Plaintiffs”) filed a complaint against TOTE asserting maritime breach of contract and negligence claims. Dkt. 1.

On October 3, 2014, TOTE filed a motion for summary judgment. Dkt. 14. On January 12, 2015, Plaintiffs responded. Dkt. 18. On January 16, 2015, TOTE replied. Dkt. 24.


On December 26, 2008, TOTE and Lynden entered into an agreement in which TOTE agreed to provide transportation of cargo shipments tendered by Lynden for movement between points in the contiguous United States and points in Alaska. Dkt. 16, Declaration of Patty Ludden (“Ludden Decl.”), Ex. A. That agreement incorporates and expands upon federal statutes governing maritime liability.

On December 26, 2012, Lynden delivered to TOTE two NC Power Systems Co. Model C-27 Generators for shipment from Tacoma, Washington to Anchorage, Alaska. Id., ¶ 10. Prior to delivery to TOTE, Lynden loaded the two generators on two of Lynden’s trailers, referred to as trailer 647102 and trailer 647103. Id., ¶ 11. Also prior to delivery to TOTE, Lynden employees secured the two trailers with Lynden’s own chain lashing. Id. The two Lynden Transport Truckload Manifests state that trailer 647103 was secured with 12 chains and 14 binders and trailer 647102 was secured with 8 chains, 2 binders, 2 straps, and 2 winches. Id., Ex. D. The chains used included 5/16” hardened chain and standard 3/8” chain. Id., Ex. E.

Longshore drivers, using TOTE hustlers, pulled the two trailers aboard the TOTE’s transport vessel, the M/V NORTH STAR. Id., ¶ 13. The drivers chose the proper stow location for the trailers, and secured each trailer to the deck with approximately 12 chains, each measuring ½” thick. Dkt. 15, Declaration of Karl Carr (“Carr. Dec.”) ¶ 4. The load was approximately 65, 000 lbs, and Chief Mate Carr declares that, for cargo of that size and weight, typically only six chains measuring ½” thick each would have been used for each trailer. Id.

On day two of the voyage, the vessel experienced typical winter seas for the Gulf of Alaska in Alaska and rolled due to heavy weather. Ludden Decl. ¶ 14. The Lynden chains securing the cargo to trailer 647103 broke apart and the cargo came off the trailer deck, striking the cargo on trailer 647102. Id. The cargo on trailer 647102 then broke free from the Lynden chains securing it to the trailer, causing it to strike the framework of the transport vessel. Id. Both of the generators suffered damage. Id.

After the heavy weather subsided and it was safe to be on deck, Chief Mate Carr reported the damage to the TOTE office. Id., ¶ 15. In an email dated January 2, 2013, Chief Mate Carr stated that the Lynden chains connecting the cargo to each Lynden trailer were inadequate to hold the cargo in place. Carr Decl. ¶ 4. He explained that

Once the first generator (L TIA64 7103 @ stow I 045) started to break its lashings, it slid into and impacted the adjacent generator load and caused it to break its lashings (LTIA647102@ stow #1047). Eventually the continuous impact of shifting loads caused both Lowboy trailers to break free from the ships ½” lashings.

Id. Chief Mate Carr then added 2 sets of ½” cross chain turnbuckles athwartships at the front and back of each trailer to mitigate further damage. Id.

On December 31, 2012, the shipment arrived in Anchorage. Ludden Dec. ¶ 17. All other cargo on the M/V NORTH STAR voyage 12203 arrived in Anchorage secured in stow and without damage. Carr Decl. ¶ 7. With regard to the weather, Chief Mate Carr reported that the “seas we encountered were big but ...

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