IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In re Petition of Frescati : CIVIL ACTION

Shipping Company, Ltd., as Owner:

of the M/T ATHOS I and Tsakos :

Shipping & Trading, S.A., as :

Manager of the ATHOS I for : NO. 05-305

Exoneration from or Limitation :

of Liability : 

MEMORANDUM AND ORDER

Fullam, Sr. J. January 5, 2006

On November 26, 2004, as the tank vessel ATHOS I traveled

toward an asphalt refinery located on the Delaware River in

Paulsboro, New Jersey, it struck a submerged nine-ton piece of

metal and began to spill crude oil into the river. CITGO Asphalt

Refining Company (“CARCO”) owned the crude oil carried by the

ATHOS I and the asphalt refinery in Paulsboro. The spill

resulted in substantial removal costs and damages.

The United States Coast Guard determined that Frescati

Shipping Company, Ltd., Tsakos Shipping & Trading, S.A., and the

M/T ATHOS I (collectively, “Plaintiffs”), were the parties

responsible for the spill under the Oil Pollution Act of 1990, 33

U.S.C. § 2701 et seq. (“OPA-90"). Plaintiffs have filed an

administrative claim with the Oil Spill Liability Trust Fund

(“OSLTF”) pursuant to OPA-90 to recover the $124 million paid for

removal and damage costs. 

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Plaintiffs filed in this Court a complaint for exoneration

from or limitation of liability. Various individuals and

entities filed claims against Plaintiffs, including CARCO. 

Plaintiffs in turn filed a counterclaim and then an amended

counterclaim against CARCO, seeking to recover from CARCO for

damage to the hull and any costs for which Plaintiffs remain

liable after the OSLTF proceedings conclude.

Although some of the claimants agreed to stay their claims

while the OSLTF proceedings are pending, others did not. 

Plaintiffs have moved to stay the claims, with the exception of

the litigation concerning CARCO. With regard to CARCO,

Plaintiffs have moved to sever and stay only Counts VIII and X of

the Amended Counterclaim, which seek indemnification of claims

unreimbursed under the OSLTF and a declaration that the claims

against CARCO for reimbursement of removal costs and damages in

excess of the amount recovered from OSLTF are stayed and that all

applicable statutes of limitations are tolled during the stay,

or, in the alternative, declaring Plaintiffs’ claims for

reimbursement of removal costs and damages do not constitute

compulsory counterclaims.

CARCO, which opposes the motion to sever and stay, has moved

for partial summary judgment on the Amended Counterclaim, arguing

that Plaintiffs cannot establish that CARCO is liable for any

claims relating to the bill of lading for the voyage. A bill of

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lading states the terms under which goods are to be carried on a

specific vessel bound for a particular destination, and depending

upon the circumstances may constitute a binding contract or may

serve only as a receipt. After CARCO filed its motion for

partial summary judgment, Plaintiffs filed a motion for leave to

file a second amended counterclaim. The proposed amendment

changes language in the Amended Counterclaim that could be seen

as an admission that the bill of lading in this case does not

have the force of a contract, and also adds a great many factual

allegations as well as additional claims for relief. CARCO

opposes the proposed amendment.

Because no purpose would be served by litigating claims that

may be resolved as a result of the OSLTF proceedings, I will

grant the motions to sever and stay claims. I will deny the

motion for partial summary judgment and grant the motion to file

a second amended counterclaim. Based upon the current record, it

is not possible to determine as a matter of law the intents and

understandings of the parties to the bill of lading. See Yang

Ming Marine Transp. Corp. v. Okamoto Freighters Ltd., 259 F.3d

1086, 1096(9th Cir. 2001). See generally James L. Chapman, IV

and Shawn A. Voyles, Cargo Litigation: A Primer on Cargo Claims

and Review of Recent Developments, 16 U.S.F. Mar. L. Rev. 1, 9

(2004). The proposed amendment is unnecessarily replete with

factual detail to which CARCO should not be required to respond;

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CARCO’s previous response will be deemed to apply to the most

recent amendment. 

An order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

In re Petition of Frescati : CIVIL ACTION

Shipping Company, Ltd., as Owner:

of the M/T ATHOS I and Tsakos :

Shipping & Trading, S.A., as :

Manager of the ATHOS I for : NO. 05-305

Exoneration from or Limitation :

of Liability : 

O R D E R

AND NOW, this 5th day of January, 2006, for the reasons

stated in the accompanying memorandum,

IT IS hereby ORDERED that:

1. Plaintiff’s Motion to Sever and Stay (Document No. 41)

is GRANTED. Counts VIII and X of the Amended

Counterclaim are STAYED pending completion of 

administrative proceedings or until further Order of

this Court.

2. Plaintiffs’ Motion to Stay (Document No. 44) is

GRANTED. The claims of Joseph and Mary Enos,

Antoinette Miskiewicz, t/a Ziggy’s & Sons Boat Yard,

Mantua Creek Generating Project, L.P. and West End Boat

Club are stayed pending completion of administrative

proceedings or until further Order of this Court.

3. CARCO’s Motion for Partial Summary Judgment (Document

No. 52) is DENIED.

4. Plaintiffs’ Motion for Leave to File an Amended

Counterclaim (Documents No. 70 and 71) is GRANTED. The

Second Amended Counterclaim attached as Exhibit “A” to

the Motion is DEEMED FILED. Counts VIII and X of the

Amended Counterclaim are STAYED pending completion of 

administrative proceedings or until further Order of

this Court.

5. CARCO’s original answer to the amended counterclaim is

deemed to apply to the most recent amended

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counterclaim, and no further response by CARCO is

necessary.

BY THE COURT:

/s/ John P. Fullam 

 Fullam, Sr. J.

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