ALAMO CHEM. TRANSP. v. M/V OVERSEAS VALDES, Civ. A. No. 72-827.

Decision Date12 April 1979
Docket NumberCiv. A. No. 72-827.
Citation469 F. Supp. 203,1979 AMC 2033
PartiesALAMO CHEMICAL TRANSPORTATION CO. v. M/V OVERSEAS VALDES, her engines, furniture, apparel, tackle, etc., in rem, and Maritime Overseas Co., in personam.
CourtU.S. District Court — Eastern District of Louisiana

George A. Frilot, III, Lemle, Kelleher, Kohlmeyer & Matthews, Cornelius G. Van Dalen, Deutsch, Kerrigan & Stiles, George H. Troxell, III, New Orleans, La., for plaintiff.

James B. Kemp, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., Max Taylor, Burke & Parsons, New York City, J. Dwight LeBlanc, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JACK M. GORDON, District Judge.

On March 17, 1972, a collision occurred between the M/V OVERSEAS VALDES and the Tug HARD WORK and its tow, the Barge SUN-CHEM 900. Alamo Chemical Transportation Co. (hereinafter referred to as "Alamo"), the owner of the Tug HARD WORK, commenced this action, in rem, against the M/V OVERSEAS VALDES and in personam against the Maritime Overseas Co. (hereinafter referred to as "Maritime").

Maritime, the operator of the M/V OVERSEAS VALDES, answered Alamo's complaint and counterclaimed against Alamo, in personam, and the Tug HARD WORK, in rem, seeking damages suffered in the collision by the M/V OVERSEAS VALDES. Firestone Tire & Rubber Company, the owner of the cargo stowed in the Barge SUN-CHEM 900, intervened to recover for the damage to the cargo. Firestone Tire & Rubber Company (hereinafter referred to as "Firestone") intervened against the Tug HARD WORK, in rem, and Alamo, in personam, the M/V OVERSEAS, in rem, and Maritime, in personam. Maritime then counterclaimed against Alamo for recovery over against Alamo if Maritime is found liable to Firestone. Alamo cross-claimed against Maritime for recovery if Alamo is found liable to Firestone. Alamo filed a third party complaint against Texas Chemical Plastic Corporation (hereinafter referred to as "Texas"). Alamo had contracted with Texas to provide transportation for shipments of chemicals. Alamo also claims that if it is found liable to Firestone for damage to the cargo, then Alamo is entitled to contractual indemnity from Texas.

Counsel for the various parties requested that the issue of liability be submitted to the Court on consideration of the depositions of Mr. Merlin A. McKee, Mr. Gerald K. Moore, Mr. John W. Ward and Mr. Daniel H. West. On July 24, 1975, the Court entered its findings of facts and conclusions of law wherein it determined that liability for this collision should be assigned at 20% to the M/V OVERSEAS VALDES and 80% to the Tug HARD WORK.

The remaining issues have been submitted to the Court on depositions and briefs. Inasmuch as fault has been determined, the only questions that remain unresolved, and capable of resolution, relate to the contractual relationships between the parties and the form of the judgment.1

After analyzing the depositions of Mr. Charles William Baeder, Jr., Mr. Gordon Gauthier, and Mrs. Patricia A. Berman; the several depositions submitted on the liability issue; the proposed findings of facts and conclusions of law; the various memoranda and reply memoranda of counsel; and the exhibits, the Court enters the following findings of fact and conclusions of law.

FINDINGS OF FACT
1.

Texas and Firestone entered into a five year contract, commencing January 1, 1972, for the sale and delivery of liquid styrene monomer, hereinafter referred to as "styrene." According to Gordon Gauthier, the Comptroller of Firestone's Synthetic Rubber and Latex Division in Lake Charles, Louisiana, this contract governed the shipment of 10,042 barrels of styrene laden aboard the Barge SUN-CHEM 900 on March 17, 1972. Under this contract Firestone retained the option of specifying whether a particular delivery was to be transported by tank truck, tank car, or barge. Texas was expressly obligated to furnish transportation if Firestone elected delivery by tank car or tank truck. Texas was not responsible for furnishing barge transportation. Through its Vice President, Mr. Shockey, Firestone requested that Texas arrange barge transportation for the March 17, 1972 shipment of styrene. Texas agreed.

2.

Firestone became the owner of the styrene at the producer's plant of origin.2 As specified in the Firestone Purchase Order No. 72-285, the March 17, 1972 shipment of styrene was purchased from Texas in accordance with the Firestone-Texas contract.

3.

On January 19, 1972, Texas and Alamo entered into a contract, captioned Barge Charter Party, for one or more trips from either Houston, Texas, or Donaldsonville, Louisiana, to the Firestone Rubber Company in Lake Charles, Louisiana. The freight rate to be paid by the charterer was $1.33 per short ton from Houston, Texas, and $1.80 per short ton from Donaldsonville, Louisiana. Although Texas was the named charterer in the Barge Charter Party, Firestone actually paid the freight.3

4.

The inspection of the Barge SUN-CHEM 900 laden with Firestone's cargo of styrene was performed by Saybolt, Inc. The cost of this service was invoiced one-half to Texas and one-half to Gulf Oil Corporation, the producer of the chemicals. Pursuant to the terms and conditions of the Firestone-Texas contract, Texas invoiced Firestone for the "Styrene Monomer Inspection Fee by E. W. Saybolt & Co., Inc."4

5.

Through Mr. Shockey, Vice President of Purchasing in the Akron, Ohio, office, and Mr. Haymon in its Lake Charles office, Firestone had knowledge of the Barge Charter Party by and between Texas and Alamo, although it did not actually receive a copy.5 Upon contacting Mr. Shockey, Miss Berman, an officer of Texas, was instructed to arrange shipment details with Mr. Haymon, which she did.6

6.

The thirteenth term and condition of the Barge Charter Party entered into by and between Texas and Alamo provided:

INSURANCE
Towers liability and P & I coverage shall be carried with 1st class underwriter by Owner Alamo for Owners account. Insurance on the cargo shall be carried by Charterer for Charterer's account, including waiver of subrogation rights against Owner.

It is abundantly clear from the record that Texas notified Firestone of this provision of the Barge Charter Party.7

Firestone insured the cargo aboard the Barge SUN-CHEM 900.

7.

In order to obtain the information Firestone desired, Miss Berman requested Alamo8 and Gulf Oil Corporation9 to notify Texas as soon as the barge was loaded, of the following: the barge number, departure date and time, temperature, net gallons, net pounds, number of barrels, and purity.

8.

Among the other clauses contained in the Barge Charter Party was a standard Both-to-Blame clause, Jason clause, and General Average clause.

9.

Texas kept Firestone apprised of every detail and development related to the March 17, 1972, shipment of styrene laden aboard the Barge SUN-CHEM 900.

10.

Firestone only received 1,901,424 lbs. of the original 3,200,075 lbs. loaded aboard the Barge SUN-CHEM 900. Firestone had been invoiced for and had paid for the entire shipment. The total damages sustained by Firestone as a result of this deficiency amounted to $76,185.36.10

CONCLUSIONS OF LAW
Jurisdiction

The Court has jurisdiction of the case by virtue of the admiralty and maritime subject matter of the claims involved. U.S.C. A.Const. Art. 3, § 2; 28 U.S.C. § 1333.

Agency

Upon the following facts, the Court concludes that a relationship of agency existed between Firestone, as principal, and Texas, as agent:

(a) According to the terms of its contract with Texas, Firestone reserved the right of designating the mode of transportation of the cargo.
(b) Under the same agreement, the responsibility for providing barge transportation was Firestone's.
(c) Title to the styrene passed to Firestone at the producer's plant of origin, where it was loaded aboard the Barge SUN-CHEM 900.
(d) Firestone requested Texas to arrange barge transportation of the cargo on Firestone's account. Texas agreed.11
(e) Firestone, not Texas, absorbed the cost of the transportation.
(f) Firestone knew that Texas had arranged barge transportation with Alamo.
(g) Texas informed Firestone of the details and developments of the transport.

Out of this amalgam of facts and circumstances arose a consensual relation whereby Firestone delegated the arrangement of the barge delivery to Texas on its account.

The agency issue in this matter is analogous to the question resolved by another section of this Court in U. S. Ore Corporation v. Commercial Transport Corporation, 369 F.Supp. 792 (E.D.La.1974). In that case, U. S. Ore Corporation arranged for Union Carbide to provide barge transportation for a shipment of its ore from Burnside, Louisiana, to Marietta, Ohio. Union Carbide subsequently contracted with Commercial Transport Corporation for the necessary barges.

During transportation, one of the Commercial barges laden with U. S. Ore's cargo sank. U. S. Ore instituted libel against Commercial to recover its loss of 1,280 tons of manganese ore. Commercial's defense rested upon a provision in its contract with Union Carbide which Commercial asserted exonerated it from liability for loss or damage to the cargo in question. U. S. Ore replied that it was a stranger to the contract between Commercial and Union Carbide and consequently was not affected by its terms.

The court disdained the argument of U. S. Ore and held:

U. S. Ore having title to the ore, caused Union Carbide to arrange for the barges to transport it to Marietta, Ohio. There is, therefore, little doubt that Union Carbide acted as U. S. Ore's agent in this matter and bound U. S. Ore to the terms of the above-mentioned contract with Commercial. . . . There is a conflict in the evidence as to whether U. S. Ore had actual knowledge of the terms of the Commercial-Union Carbide contract but this question is immaterial. In making the barge arrangements,
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