10-4934-cv(L) Chem One, Ltd. v. M/V Rickmers Genoa UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held 1 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of 2 New York, on the 9 thday of November, two thousand twelve. 3 4 PRESENT: REENA RAGGI, 5 PETER W. HALL, 6 DEBRA ANN LIVINGSTON, 7 Circuit Judges

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----------------------------------------------------------------------- 9 CHEM ONE, LTD., A.H.A. INTERNATIONAL CO., LTD., 10 COMMERCIAL METALS COMPANY, GRAPHITE 11 ELECTRODES SALES COMPANY, INC., HUNTER 12 DOUGLAS METALS, INC., IKE TRADING CO., LTD., 13 ITOCHU BUILDING PRODUCTS CO., INC., NATIONAL 14 OILWELL L.P., TEXAS WYOMING DRILLING, INC., 15 THE BABCOCK & WILCOX COMPANY, THE CRISPIN 16 COMPANY, TORAY ENGINEERING CO., LTD., 17 WESTCO SYSTEMS, INC., BLUELINX CORPORATION, 18 BSTC GROUP INC., KURT ORBAN PARTNERS LLC, 19 FOSTER WHEELER NORTH AMERICA CORP., 20 GENERAL ELECTRIC COMPANY, SUEWON 21 POONGRYUK MACHINERY CO., LTD., WEGO 22 CHEMICAL & MINERAL CORP., WINTERSUN GROUP 23 (USA) INC., 24 Plaintiffs-Appellants , 25 26 v. 27M/V RICKMERS GENOA, her engines, boilers, etc., 1 SESCO GROUP, INC., CS MARINE CO. LTD, ESM 2 (TIANJIN) CO., LTD, in personam, M/V “SUN CROSS”, 3 their engines, boilers, etc., JA SUNG MARINE CO., LTD., 4 SUNWOO MERCHANT MARINE CO., LTD., 5 Defendants , 6 7 RICKMERS-LINIE GMBH & CIE. KG, RICKMERS 8 GENOA SCHIFFAHRTSGES MBH & CIE. KG, 9 Defendants-Third-Party-Plaintiffs-Appellants , 10 11 GENOA NAVIGATION CO. LTD, 12 Third-Party-Plaintiff-Appellant, 13 14 ESM (TIANJIN) CO., LTD, ESM GROUP, INC., 15 Defendants-Third Party Defendants-Cross 16 Defendants-Cross Claimants-Counter 17 Claimants-Appellees , 18 19 ESM II, INC., ESM II LP, in personam, PUDONG TRANS 20 USA INC., UNITED SHIPPING SERVICES, INC., 21 Defendants-Third-Party-Defendants

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----------------------------------------------------------------------- 23 ATLANTIC COAST YACHT SALES, INCORPORATED, 24 Plaintiff , 25 Nos. 10-4934-cv(L); 26 v. 10-4938-cv(CON); 27 10-4961-cv(CON); 28 10-4965-cv(CON) 29 30 ESM GROUP, INC., ESM (TIANJIN) CO., LTD, 31 Defendants-Third Party Defendants-Cross 32 Defendants-Cross Claimants-Counter 33 Claimants-Appellees , 34 35 v. 36 37RICKMERS-LINIE GMBH & CIE. KG, RICKMERS 1 GENOA SCHIFFAHRTSGES MBH & CIE. KG, GENOA 2 NAVIGATION COMPANY LIMITED, 3 Defendants-Cross Claimants-Cross 4 Defendants-Counter Defendants-Third Party 5 Plaintiffs-Appellants

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----------------------------------------------------------------------- 7 ST. PAUL TRAVELERS, as subrogor of FOREIGN TIRE 8 SALES, INC., 9 Plaintiff , 10 11 RICKMERS GENOA SCHIFFAHRTSGES MBH & CIE. 12 KG, RICKMERS-LINIE GMBH & CIE. KG, GENOA 13 NAVIGATION COMPANY LIMITED, 14 Third Party Plaintiffs-Cross Claimants15 Cross Defendants-Counter Defendants16 Appellants , 17 18 GENOA NAVIGATION COMPANY LIMITED, 19 Third Party Plaintiff-Counter Defendant20 Cross Defendant-Appellant, 21 22 v. 23 24 M/V RICKMERS GENOA, her engines, boilers, tackle, etc., 25 ZEN CONTINENTAL COMPANY, INCORPORATED, 26 CIE. K.G., SUNWOO MERCHANT MARINE CO., LTD., 27 CS MARINE CO. LTD, JA SUNG MARINE CO., LTD., 28 M/V “SUN CROSS”, her engines, boilers, tackle, etc., in 29 rem, PUDONG TRANS USA INC., SESCO GROUP, INC., 30 UNITED SHIPPING SERVICES, INC., ESM II, INC., ESM 31 II LP, in personam, 32 Defendants , 33 34 ESM (TIANJIN) CO., LTD., 35 Third Party Defendant-Cross Claimant36 Counter Claimant-Counter Defendant37 Appellee , 38 39 ESM GROUP, INC., 40 Third Party Defendant-Cross Claimant41 Counter Claimant-Appellee

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----------------------------------------------------------------------- 434 APPEARING FOR APPELLANTS: JAMES A. SAVILLE, JR. (Thomas E. 1 Willoughby, on the brief ), Hill Rivkins LLP, New 2 York, New York, for AppellantsChem One, Ltd., 3 A.H.A. International Co., Ltd., Commercial 4 Metals Co., Graphite Electrodes Sales Co., Inc., 5 Hunter Douglas Metals, Inc., Ike Trading Co., 6 Ltd., Itochu Building Products Co., Inc., National 7 OilWell L.P., Texas Wyoming Drilling, Inc., The 8 Babcock & Wilcox Co., The Crispin Co., Toray 9 Engineering Co., Ltd., Westco Systems, Inc., 10 Bluelinx Corp., BSTC Group Inc., Kurt Orban 11 Partners LLC, Foster Wheeler North America 12 Corp., General Electric Co., Suewon Poongryuk 13 Machinery Co., Ltd., Wego Chemical & Mineral 14 Corp., Wintersun Group (USA) Inc. 15 16 EUGENE J. O’CONNOR (Timothy Semenoro, 17 Robert E. O’Connor, on the brief ), Chalos 18 O’Connor, LLP, Port Washington, New York,for 19 AppellantsRickmers Genoa Schiffahrtsges. mbH 20 & Cie. KG, Rickmers-Linie GmbH & Cie. KG, 21 Genoa Navigation Co. Ltd. 22 23 APPEARING FOR APPELLEES: CHRISTOPHER H. DILLON (Michael J. Walsh, 24 on the brief ), Burke & Parsons, New York, New 25 York. 26 27 Consolidated appeals from orders of the United States District Court for the Southern 28 District of New York (Loretta A. Preska, Chief Judge ). 29 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 30 DECREED that the orders entered on March 31, 2009, and November 4, 2010, are 31
AFFIRMED. 321 A motions panel of this court has already determined that we have interlocutory 1 appellate jurisdiction over these appeals under 28 U.S.C. § 1292(a)(3) because “the District 2 Court has determined conclusively all of the claims against the ESM Parties, and that 3 decision is unaffected by any remaining claims.” Chem One, Ltd. v. M/V Rickmers Genoa , 4 660 F.3d 626, 642 (2d Cir. 2011). 5 5 These consolidated interlocutory appeals challenge awards of summary judgment to 1 appellees ESM Group, Inc. (“ESMG”) and ESM (Tianjin) Co., Ltd. (“ESMT”) (collectively, 2 “ESM Parties”), on all claims asserted against them in consolidated maritime actions 3 stemming from a March 8, 2005 explosion on the M/V Rickmers Genoa , which occurred 4 approximately four hours after that vessel collided with the M/V Sun Crossin the Yellow 5
Sea. 1 We review an award of summary judgment de novo , resolving all ambiguities and 6 drawing all inferences in favor of the nonmovant, and we will affirm only if no genuine 7 dispute of material fact exists and the moving party is entitled to judgment as a matter of law. 8
SeeNagle v. Marron , 663 F.3d 100, 104–05 (2d Cir. 2011). While we assume the parties’ 9 familiarity with the facts and record of prior proceedings, a brief summary of certain facts 10 is necessary to explain our decision to affirm the challenged orders. 11 The following facts are undisputed or accepted as true for summary judgment 12 purposes. At the time of her collision with the Sun Cross , the Rickmers Genoawas carrying 13 cargo from China to the United States, which included ESMT’s shipment to ESMG of 600 14 tons of a magnesium-based desulphurization reagent known as Super-Sul Mg-89 (“SS-89”). 15 The collision breached the Rickmers Genoa ’s hull, causing seawater to flood the below-decks 162The Rickmers Parties consist of Rickmers Genoa Schiffahrtsges. mbH & Cie. KG, 1 Rickmers-Linie GmbH & Cie. KG, and Genoa Navigation Co. Ltd. 2

3 The Chem One Parties consist of: Chem One, Ltd.; A.H.A. International Co., Ltd.; 1 Commercial Metals Co.; Graphite Electrodes Sales Co., Inc.; Hunter Douglas Metals, Inc.; 2 Ike Trading Co., Ltd.; Itochu Building Products Co., Inc.; National OilWell L.P.; Texas 3 Wyoming Drilling, Inc.; The Babcock & Wilcox Co.; The Crispin Co.; Toray Engineering 4 Co., Ltd.; Westco Systems, Inc.; Bluelinx Corp.; BSTC Group Inc.; Kurt Orban Partners 5 LLC; Foster Wheeler North America Corp.; General Electric Co.; Suewon Poongryuk 6 Machinery Co., Ltd.; Wego Chemical & Mineral Corp.; and Wintersun Group (USA) Inc. 7
6 cargo hold in which the SS-89 was stowed. The seawater reacted with the magnesium in the 1 SS-89, yielding flammable hydrogen gas. Four hours later, the accumulated hydrogen 2 ignited, and the resulting explosion caused significant damage to the ship and cargo and 3 killed a crew member. 4 The Rickmers Parties (“Rickmers”), 2who owned and chartered the Rickmers Genoa 5 for the voyage, now appeal from the award of summary judgment in favor of ESMT on their 6 claims for (1) strict liability under § 4(6) of the Carriage of Goods by Sea Act (“COGSA”), 7

see46 U.S.C. § 30701 note; (2) negligent failure to warn under COGSA § 4(3); and 8 (3) negligent misrepresentation under federal maritime common law. The Chem One Parties 9 (“Chem One”), 3who hold various interests in the cargoes lost and damaged in the explosion, 10 appeal from the award of summary judgment on their parallel COGSA claims, and on their 11 (4) federal maritime negligent-failure-to-warn claim against ESMG. 12
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144Because we conclude that Chem One’s COGSA claims fail on the merits, we need 1 not here decide whether such a third party, i.e. , a party other than a carrier or agent of the 2 carrier, can maintain a COGSA action against the shipper. SeeIn re M/V DG Harmony , 533 3 F.3d 83, 93 (2d Cir. 2008) (recognizing that this court “has not yet determined whether third 4 parties may bring claims under COGSA”). 5
7 1. COGSA Claims 1 Because Rickmers’s and Chem One’s challenges to the district court’s ruling on their 2 COGSA claims overlap, we consider—and reject—them together. 4 3 a. Strict Liability 4 Under COGSA § 4(6), a shipper of “[g]oods of an inflammable, explosive, or 5 dangerous nature to the shipment . . . shall beliable for all damages and expenses directly or 6 indirectly arising out of or resulting from such shipment” if “the carrier, master or agent of 7 the carrier, has not consented with knowledge of their nature and character.” 46 U.S.C. 8 § 30701 note § 4(6). Thus, COGSA § 4(6) precludes a carrier from “invok[ing] strict 9 liability if it knows that a cargo poses a danger and requires gingerly handling or stowage, 10 and nevertheless exposes the cargo to the general condition that triggers the known danger, 11 regardless of whether the carrier is aware of the precise characteristics of the cargo.” 12 Contship Containerlines, Ltd. v. PPG Indus., Inc. , 442 F.3d 74, 77 (2d Cir. 2006). 13 i. Knowledge 14 Here, the district court found, and the parties do not dispute, that ESMT gave the 15 carrier, i.e. , Rickmers, a U.S. Harmonized Tariff Schedule (“HTS”) Code identifying its 168 cargo of SS-89 as a magnesium-based substance, and that the Master of the Rickmers Genoa 1 knew that magnesium emitted highly flammable hydrogen when exposed to water. 2 Both Chem One and Rickmers argue that the district court nevertheless erred in 3 holding that the information conveyed by the HTS Code was sufficient to place Rickmers on 4 notice of the dangerous properties of ES MT’s cargo of SS-89. Chem One argues that 5 Rickmers did not know of the danger posed by the SS-89 because ESMT never declared that 6 the cargo was “dangerous” within the meaning of the International Maritime Dangerous 7 Goods (“IMDG”) Code, and never provided Rickmers with a Material Safety Data Sheet 8 (“MSDS”) identifying the SS-89 as dangerous. Indeed, Rickmers contends that it may 9 invoke strict liability because ESMT affirmatively certified that the SS-89 was not a cargo 10 to which the IMDG Code applied. 11 These arguments fail because strict liability under COGSA § 4(6) turns on what the 12 carrier knows about the dangerous nature of its cargo, not whether or how the shipper 13 conveys that information. SeeSenator Linie GmbH & Co. KG v. Sunway Line, Inc. , 291 14 F.3d 145, 154 (2d Cir. 2002) (holding that plain meaning of § 4(6) indicates that “it is the 15 carrier’s knowledge of the goods’ dangerous nature , not the shipper’s, that conditions shipper 16 liability”). Recognizing this principle, Chem One concedes that COGSA does not require 17 a shipper to use any particular method, whether by MSDS or otherwise, to inform a carrier 18 of the dangerous properties of its cargo. Moreover, neither Rickmers nor Chem One 199 identifies any case in which we have held that reference to an IMDG Code is necessary to 1 place a carrier on notice of a particular cargo’s dangerous nature. 2 Here, it is undisputed that ESMT informed Rickmers that the SS-89 was 3 “[m]agnesium and articles thereof, including waste and scrap: Raspings, turnings and 4 granules, graded according to size; powders.” App. 1847. Further, the Master of the 5 Rickmers Genoa , Captain Andrzej Bielawski, knew that magnesium reacted with seawater 6 to produce hydrogen. Although Rickmers and Chem One speculate that Captain Bielawski 7 could have obtained that knowledge after the collision, they adduced no evidence to support 8
such an inference. In fact, the captain’s unequivocal testimony that he knew that 9 “magnesium, plus seawater, that means hydrogen,” Bielawski Dep. 378:9, based on his “own 10 background information,” id. 379:10–11, indicates that the knowledge was longstanding. 11 App. 1335–36. 12 Chem One and Rickmers dispute Rickmers’s knowledge of SS-89’s heightened 13 dangers when exposed to seawater instead of distilled water, a circumstance resulting in the 14 release of significantly more hydrogen. The argument is irrelevant for purposes of strict 15 liability analysis. 16 A carrier need not know the “precise characteristics” of the cargo to have knowledge 17 of its dangerous character sufficient to preclude strict liability. Contship Containerlines, Ltd. 18 v. PPG Indus., Inc. , 442 F.3d at 77. The question is whether the carrier was on “notice of any 19 aspect of the cargo’s dangerousness.” In re M/V DG Harmony , 533 F.3d at 93. In Contship , 2010 we held that a carrier’s stowage of cargo near a heat source knowing that the cargo would 1 become flammable if exposed to elevated temperatures sufficed to defeat its strict liability 2 claim, seeContship Containerlines, Ltd. v. PPG Indus., Inc. , 442 F.3d at 78, even if the 3 carrier did not know the precise temperature at which the particular cargo would combust, 4

seeid. at 75–76. We observed that the question of a carrier’s knowledge requires a “binary 5 analysis, a party either will know that such a reaction is possible or it will not; the calibrated 6 likelihood of an exothermic reaction under a variety of heat circumstances is not considered.” 7 Id. at 77; accordIn re M/V DG Harmony , 533 F.3d at 93 (holding that relevant knowledge 8 was carrier’s knowledge that cargo “became vulnerable to combustion when heated”). Here, 9 the undisputed facts establish that Rickmers was on notice that the SS-89 cargo contained 10 magnesium and that flammable hydrogen would be released if it came in contact with water. 11 ii. Exposure to Condition Triggering Known Danger 12 Rickmers argues that even such knowledge cannot defeat its strict liability claim 13 because it did not intentionally expose the SS-89 to the condition triggering the danger, i.e. , 14 water. Such exposure was the result of an accidental collision with another vessel. The 15 argument is without merit. Rickmers carried a shipment of a magnesium-based substance 16 on a sea voyage knowing that a chemical reaction emitting flammable hydrogen would occur 17 if the magnesium were exposed to any of the water in the vast ocean surrounding the ship. 18 Despite this knowledge, the carrier stowed the SS-89 below deck in an enclosed cargo hold 19 that would be susceptible to flooding in the ev ent of a hull breach, and that would contain the 2011 flammable hydrogen liberated from the magnesium by the reaction. As Rickmers concedes, 1 the dangerous accumulation of hydrogen from the reaction of the water and magnesium could 2 have been avoided entirely if it had stowed the SS-89 on deck where hydrogen could 3 “dissipate[] harmlessly into the atmosphere.” Rickmers Br. 52. Thus, there is no dispute of 4 fact that Rickmers exposed the SS-89 to the condition triggering the danger by stowing it in 5 a location that was susceptible to flooding in the event of a collision, and that would prevent 6 the flammable gas created by the reaction from escaping the ship. 7 Accordingly, we conclude that Rickmers’s and Chem One’s COGSA § 4(6) strict 8 liability claims fail as a matter of law base d on the undisputed evidence that Rickmers knew 9 that the SS-89 cargo would react with water to produce flammable hydrogen, and that 10 Rickmers nevertheless stowed that cargo in a hold susceptible to flooding in the event of a 11 collision from which resulting hydrogen could not escape. 12 b. Negligent Failure To Warn 13 Rickmers argues that but for ESMT’s failure to warn of SS-89’s dangerous 14 characteristics, Rickmers would have refused to carry the SS-89 cargo or would have stowed 15 it on deck where hydrogen produced in any reaction with water would dissipate harmlessly 16 into the atmosphere. 17 To prevail on such a COGSA § 4(3) claim, a carrier must prove that: “(1) the 18 defendant had a duty to warn because the cargo presented dangers of which the stevedore and 19 ship’s master could not reasonably have been expected to be aware; (2) the defendant 2012 breached that duty by failing to provide an adequate warning; and (3) the breach in duty 1 caused (4) the resulting harm.” In re M/V DG Harmony , 533 F.3d at 94 (internal quotation 2 marks, ellipsis, and citation omitted). Estab lishing causation requires the carrier to show that 3 the warning, if given, would have had an impact on the stowage decision. Seeid. at 96. 4 Rickmers failed to adduce evidence sufficient to raise a genuine factual dispute as to 5 the effect a different warning would have had on its stowage decision. The only evidence 6 that Rickmers would have refused the cargo is the deposition testimony of an employee in 7 Rickmers’s Dangerous Goods department who stated that he would have refused the SS-89 8 if he had been presented with an MSDS advising that a magnesium fire should be smothered 9 with dry graphite, sand, or “Purple K,” because Rickmers’s ships were equipped only with 10 water and carbon dioxide fire suppression systems. As the MSDS makes clear, however, its 11 special instructions for fighting a magnesium fire were a consequence of the fact that water 12 reacts with magnesium to “generate hydrogen gas that may cause an explosion,” App. 619, 13 a fact already known to the Rickmers Genoa ’s Master. Thus, Rickmers cannot maintain that 14 it would have declined the shipment of SS-89 if it had known that the magnesium-based 15 product would react with water when Rickmers employees already knew that fact and 16 accepted the cargo anyway. 17 Even assuming arguendothat ESMT had a duty to warn Rickmers about the higher 18 rate at which SS-89 would evolve hydrogen when in contact with seawater, Rickmers has not 19 adduced sufficient evidence to permit a rational factfinder to conclude that this additional 2013 information would have prompted Rickmers to reject the SS-89 or to stow it in containers 1 above the deck. First, Rickmers’s fleet manager testified that stowage planners did not take 2 account of potential flooding in making stowage decisions because it “should not happen.” 3 Sandmann Dep. at 107:22–25, App. 2175 . Second, despite Rickmers’s knowledge that 4 ESMT’s cargo was a magnesium-based substance that would evolve hydrogen if it came in 5 contact with water, Rickmers chose to stow the SS-89 in a cargo hold, an enclosed space that 6 would trap hydrogen resulting from the SS-89’s contact with water. Third, Rickmers has 7 adduced no evidence that would permit a factfinder to conclude that the speed with which 8 the reaction would occur was a consideration th at would have prompted a different stowage 9 decision. Finally, although Rickmers’s employees testified that it was Rickmers’s general 10 policy to stow IMDG cargoes on deck, and not in a cargo hold, Rickmers conceded in the 11
district court that the SS-89 was not an IMDG cargo. Thus no evidence indicates that this 12 policy would have applied to the SS-89, even if Rickmers had been given different warnings 13 as to SS-89’s dangerous characteristics. 14 Thus, we independently reach the same c onclusion as the district court: that the 15 COGSA § 4(3) claim fails for lack of evidence that Rickmers would have acted differently 16 if ESMT had warned it of SS-89’s reactivity with seawater. 17
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2014 2. Federal Maritime Common Law Claims 1 a. Negligent Misrepresentation 2 Rickmers argues that ESMT is liable under federal maritime common law for 3 misrepresenting the hazardous nature of the SS-89 by certifying in a November 2004 letter 4 of indemnity that an earlier shipment of SS-89 was not a dangerous good listed in the IMDG 5 Code. The district court deemed this argument abandoned because Rickmers failed 6 sufficiently to distinguish it from its claim for breach of contract based on the bill of lading. 7 Rickmers concedes in its appellate brief that it argued for the first time that it had pleaded 8 a negligent misrepresentation claim in an October 20, 2010 letter to the district court which 9 was filed only after briefing had been completed on the ESM Parties’ motion “for summary 10 judgment dismissing all the claims asserted in these consolidated cases against [the ESM 11 Parties],” ESM Parties’ Mot. for Summ. J. at 2, Chem One, Ltd. v. M/V Rickmers Genoa , 12 No. 05-CV-04261 (LAP) (HBP) (S.D.N.Y. Apr. 16, 2010), ECF No. 152, and only after the 13 district court had filed a draft of its order proposing to grant the motion for summary 14 judgment on all claims asserted against the ESM Parties. Because Rickmers failed timely 15 to assert this claim in opposition to summary disposition in the district court, we decline to 16 address the claim for the first time on appeal. SeeAllianz Ins. Co. v. Lerner , 416 F.3d 109, 17 114 (2d Cir. 2005); Aslanidis v. U.S. Lines, Inc. , 7 F.3d 1067, 1077 (2d Cir. 1993) (holding 18 that party must raise all arguments against summary disposition in trial court and may not 19 raise them for first time on appeal). 205Although, Chem One appears to suggest that ESMG may be responsible for ESMT’s 1 failure to warn because ESMG allegedly dominated and controlled ESMT, Chem One does 2 not argue that ESMT was ESMG’s alter ego. Thus, we deem any such argument abandoned 3 on appeal. SeeNorton v. Sam’s Club , 145 F.3d 114, 117–18 (2d Cir. 1998). 4 15 b. Negligent Failure To Warn 1 Chem One argues that ESMG, the purchaser of the SS-89 shipped by ESMT, had a 2 duty to warn Rickmers of the dangers posed by the SS-89 as a matter of federal maritime 3 common law because of its extensive knowledge of the cargo’s dangerous properties. In 4 support, Chem One relies on language in Aslanidis v. U.S. Lines, Inc. , which it interprets as 5 leaving “open the possibility that a buyer may have a duty if it is in a unique position to 6 protect against harm or to warn of known risks.” Chem One Br. 40. To the contrary, 7 Aslanidisdefeats Chem One’s claim. There, this court held that a purchaser “normally has 8 no duty under the law to supervise the seller in the process of producing or packing the 9 purchased goods.” Aslanidis v. U.S. Lines, Inc. , 7 F.3d at 1077 (internal quotation marks 10 omitted). Aslanidisdistinguished a case in which a purchaser had been found liable to a 11 carrier for failure to warn it of the dangerous character of the cargo on the ground that the 12 purchaser in that case “was the party actuallyresponsible for the shipping and packaging of 13 the container and was found liable for its ownacts and omissions.” Id. (emphasis in 14 original). Here there is no dispute that ESMT arranged for the packing and shipment of the 15 SS-89 carried by the Rickmers Genoa ; ESMG was merely the intended recipient. 5Thus, 1616 Chem One’s claim fails because ESMG had no duty at law to warn Rickmers of the cargo’s 1 latent dangers. 2 We have considered Rickmers’s and Chem One’s remaining arguments on appeal and 3 conclude that they are without merit. Accordingly, the challenged orders granting summary 4 judgment are AFFIRMED. 5
FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, Clerk of Court 7 8 9