Oakland, CA – April 10, 2018: Cargo Ships MSC DANIT and CSCL BOHAI SEA loading at the Port of Oakland on a hazy day. The Port of Oakland is the fifth busiest port in the United States. Credit: Sheila Fitzgerald/Shutterstoc

The Texas oil company blamed for a spill in Orange County, California, has sued two worldwide shipping companies for rupturing the pipeline, increasing the international stakes in an already busy proposed class action.

The complaint filed Monday in the Central District of California also says the vessel traffic controller Marine Exchange of Southern California negligently and recklessly allowed the ships to remain anchored near the pipeline during bad weather, then failed to notify Amplify of dragged anchors.

Wylie Aitken of Aitken Aitken Cohn. (Courtesy photo)

Interim class counsel Wylie Aitken said Amplify's allegations "should in no way be interpreted as eliminating the obvious culpability of Amplify and its entities." 

"There is seldom only one reason for a disaster. We will be including the ships as well, but we will not be distracted by their need to step up and join us in creating injunctive relief to actively protect the precious California Coastline," Aitken said in a text message to Law.com.

The new complaint follows a consolidated class action complaint from Aitken and the other plaintiff counsel that also names the owners of the ships, the MSC Danit and the Cosco Beijing, as defendants, and it highlights an earlier showdown in which one ship essentially tried to arrest the other through a court order. 

A status conference with U.S. District Judge David O. Carter of the Central District of California also revealed a behind-the-scenes effort by plaintiffs attorneys to identify counsel for the ships, and navigate the international laws governing proper lawsuit service, with one telling the judge they'd gleaned who the ships' attorneys are through a prior case, and that they'd learned that morning that one of the companies believed the process used to serve it was faulty.

Still, interim class counsel Lexi Hazam of Lieff Cabraser Heimann & Bernstein said the ships appeared amenable to waiving service, and Amplify's counsel said the company secured letters of understanding with both entities that thwarted an arrest.

"We could have arrested the ships, but they didn't want that," Daniel Donovan, a partner at Kirkland & Ellis in Washington, D.C., said during the Feb. 23 conference. "We never had to arrest the ships because we have letters of understanding with both."

A High-Seas Escape?

The ships are massive cargo vessels that supply goods to ports all over the world, so the letters carry tremendous value: MSC Danit's lists its at $97.5 million, though Donovan cautioned in court that the figure doesn't reflect the vessel's true value. Cosco Beijing's letter doesn't list a dollar amount.

Lexi Hazam, partner with Lieff Cabraser Heimann & Bernstein. (Courtesy photo)

Hazam told Carter the information about the letters of understanding was "news to us, at least to me, and it is of great interest." 

Donovan assured the court: "We're just as interested as the plaintiffs in getting the ships in the case."

Regarding the previous action, Hazam said, "One of the ships essentially blamed the other, and wanted access to evidence and to be able to interview certain employees." It went to court "to stop them from leaving the jurisdiction" through a restraining order "to essentially arrest one of the ships," but it didn't succeed, he said.

It was through that case that plaintiff's counsel identified attorneys connected to the companies, Hazam said. They include Joseph Walsh and Ellen McGlynn of Collier Walsh Nakazawa, representing Dordellas Financial Corp., which owns the MSC Danit and is headquartered in Panama, as well as Albert Peacock III and Glen Piper of Peacock Piper Tong + Voss, representing Cosco Bejing, which is owned by Capetanissa Maritime Corp. of Liberia.

On behalf of Dordellas, Walsh and McGlynn filed a petition in November seeking to perpetuate the testimony of Robert Ledesma, a crew member with the Cosco Beijing, whom they said was planning to flee the country after invoking his Fifth Amendment right against self-incrimination during an interview with federal investigations, "even declining to state his country of origin," according to the petition.

"It is impossible to determine if Mr. Ledesma will ever come within the District again, and as mentioned above, Mr. Ledesma through counsel refused to acknowledge his country of origin," according to the petition.

U.S. District Judge Dolly Gee granted the petition, but according to Hazam, Ledesma had already left the country. He was represented in the litigation by Michael Zweiback of Zweiback Fiset & Coleman.

'This Could Get Very Laborious'

During last week's status conference in Santa Ana, Carter, who has extensive international judging experience through the United Nations and other organizations, warned the attorneys about involving international defendants: "Under the Haight Convention etcetera, this could get very laborious, very time consuming."

U.S. District Judge David Carter of the Central District of California. (photo via Meghann M. Cuniff)

"You won't get, necessarily, the information you need from some of our colleagues overseas, although they're cooperative," Carter said.

The judge referenced the defendant company based in Liberia and said, "Have any of you ever been to Liberia? Have fun with your depositions."

Carter also questioned how the involvement of international defendants and the accompanying discovery obligations will affect mediation, scheduled for April with retired U.S. District Judge Layn Phillips, who's known internationally for his mediation work in complex class actions.

"That's a very interesting question, your honor," Aitken said. "I don't think we necessarily know the answer, either."

Carter appointed Aitken and Hazam as interim co-lead counsel in December, along with retired U.S. District Judge Stephen Larson of Larson LLP. The special masters are retired Orange County Superior Court Judge James Smith of JAMS, Bradley O'Brien of O'Brien Conflict Resolution and Daniel Garrie of JAMS. 

Meanwhile, Donovan and Kirkland & Ellis partner Christopher Keegan filed a motion to dismiss Tuesday that says the consolidated complaint "is overbroad, and most of it should be dismissed." It's scheduled to be heard May 23.