WILMAR MARINE ENGINEERING & SALES CORP. v. M/V PERSEO, 817.
| Decision Date | 27 December 1967 |
| Docket Number | No. 817.,817. |
| Citation | 278 F. Supp. 345 |
| Parties | WILMAR MARINE ENGINEERING & SALES CORPORATION v. M/V PERSEO, her engines, boilers, apparel, etc., and Sicular Oceanica, S. A. |
| Court | U.S. District Court — Eastern District of Louisiana |
Henry J. Read, Montgomery, Barnett, Brown & Read, New Orleans, La., for libelant.
Alfred M. Farrell, Jr., Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for cross-claimant defendant, Sicula Oceanica, S. A.
Libelant, Wilmar Marine Engineering & Sales Corporation, brings this suit to recover for work allegedly performed by it in connection with the cleaning of the tanks of the M/V PERSEO, a vessel owned and operated by respondent, Sicula Oceanica, S.A., hereafter called Siosa. Respondent, Siosa, answered, denying owing libelant anything, basing its denial on an alleged breach of contract by Wilmar, and then counterclaiming against Wilmar for damages allegedly resulting from the breach of contract. After reviewing the extensive record in this case, the Court concludes that Wilmar is entitled to recover from respondent the total sum of $46,764.41, and in connection with this conclusion makes the following Findings of Fact and Conclusions of Law.
At all times pertinent hereto, libelant, Wilmar Marine Engineering & Sales Corporation, hereafter referred to as Wilmar, was a corporation organized pursuant to the laws of the State of Louisiana with its principal place of business being located at Arabi, Louisiana.
At all times pertinent hereto, the respondent, Sicula Oceanica, S.A., hereafter referred to as Siosa, was a foreign corporation organized under the laws of Italy, with its principal place of business being located in Genoa, Italy, and was, at all times pertinent hereto, the owner and operator of the M/V PERSEO.
The M/V PERSEO is an ocean-going merchant vessel of 9493 net tons with a carrying capacity of approximately 23,000 tons. She is compartmented into 27 compartments or tanks, arranged three abreast with the nine center tanks measuring about 40 feet square by 45 feet deep, and the nine port and nine starboard tanks measuring each about 40 feet long, 20 feet wide, and 45 feet deep.
On March 12, 1965, while the PERSEO was discharging a cargo of oil in Belgium, her owner, Siosa, entered into a charter party with Tradex Export, S.A., the time charterer, pursuant to which the PERSEO was to make three voyages carrying grain out of United States gulf ports. Baton Rouge, Louisiana, was nominated as the first port at which a cargo of grain was to be loaded aboard. The charter party provided that the PERSEO was to be inspected and approved by the proper officials at the loading port for hauling of grain on or before 12:00 o'clock noon on April 8, 1965, and if this condition was not met, the charterer had the option of cancelling the entire contract.
In order to obtain the approval of the inspectors for hauling grain in the PERSEO, it was necessary that all of her tanks be properly cleaned and made free of any oil residue to avoid contamination of the grain by the residue of the previous cargo of petroleum products. In order to accomplish this by the time the vessel was due to arrive in Baton Rouge, Siosa intended to have the ship's crew, under the supervision of Mr. Christiansen, a technician brought aboard for the purpose, clean the tanks while en route from Europe to Baton Rouge by a process known as butterworthing. This is a cleaning process that requires the use of water and chemicals applied under pressure by use of specially designed nozzles and hose connectors.
While it was expected that the tanks could be adequately cleaned by this process before the vessel reached Baton Rouge, such was not the case. Bad weather was encountered on the crossing and other difficulties, such as clogged condenser pipes, inadequate number of "butterworthing holes," and difficulty in obtaining water of the proper temperature. All of these difficulties combined to defeat the efforts of the crew to complete the butterworthing process on time. The vessel was diverted to Bermuda for the installation of new condenser pipes where it remained for 48 hours before proceeding to New Orleans, Louisiana. What was begun as a more or less routine cleaning job turned out to be a rather complicated and extensive undertaking.
When the PERSEO arrived at Pilottown, below New Orleans, Louisiana, on April 6, 1965, Dr. Aldo Grimaldi, a director and representative of Siosa, came aboard. After checking on the progress of the tank cleaning, he realized that there was much more to be done than could be accomplished by the ship's crew in the short time remaining before April 8, so he decided to employ the services of a tank cleaning firm to complete the job. When the vessel arrived at New Orleans, a Mr. Peterson, the head of a tank cleaning firm, came aboard. After discussing the job with Grimaldi, he, Peterson, decided he could not complete the job by April 8. He further indicated that the job might cost as much as $50,000—a figure which Grimaldi held "to be completely fair."
When Peterson refused to do the job, Grimaldi realized the impossibility of meeting the April 8 deadline so he arranged with the charterer, Tradex, for an extension of seven days, or until noon, April 15. After this extension was obtained, Grimaldi contacted plaintiff Wilmar sometime during the night of April 6, or early morning of April 7, and the following contract was entered into:
(Signed) (Signed) "Aldo Grimaldi Raymond Willhoft Wilmar Marine Engineering"
On April 7, prior to executing this contract, Mr. Raymond George Willhoft, Secretary-Treasurer of Wilmar, boarded the PERSEO pursuant to Grimaldi's request conveyed to him by telephone call from one Mr. Piccolo, who was acting as translator, and upon this first visit, when asked by Grimaldi to give a firm bid for doing the work, refused to do so and left the ship. Later in the day, upon being asked to return to the ship, Willhoft did so, and after discussing the matter with Grimaldi and Christiansen, he agreed to do the job on a "time and material basis" using $4.20 an hour as a man-hour cost. When Grimaldi insisted that a maximum figure be agreed upon, the contract appearing in Finding No. 8 was executed.
When the contract was entered into Wilmar, through its representative Willhoft, was given to understand that the vessel had been completely butterworthed and that nothing remained to be done but to clean out the residue left after butterworthing has been completed. Wilmar was not advised of the fact that the butterworthing had not, in fact, been completed and that much more than a "clean-up" job was involved. It seems fair to conclude from all of the evidence in the case that at the time of signing the contract of April 7, neither Wilmar nor Grimaldi were aware of the fact that the tanks had not been properly butterworthed and that instead of petroleum residues remaining merely at or near the bottom of the tanks as would normally have been the case had the butterworthing process been properly completed, the complete inside of the tanks still contained petroleum residues which had to be cleaned off. That such was, in fact, the condition of the tanks is evident from the fact that later Grimaldi hired the Maritec Company to re-butterworth the tanks which both he and Wilmar had thought, at the time of executing the contract, had already been adequately butterworthed. Wilmar was never expected to do any butterworthing. Both parties knew that Wilmar was not equipped to do so. Both parties to the contract thought that the clean-up job only required Wilmar to remove the residue from the lower part and bottom of the tanks by scraping and wiping and possibly removing loose residue in buckets, and that is all the parties expected that Wilmar would be required to do pursuant to the contract.
Wilmar's crews began working on the tanks on April 7, and soon after they commenced work it became apparent that the scope of work necessary to properly clean the tanks was far greater than had been anticipated by either party to the contract. Workers were required to clean the upper parts as well as the lower portions of the bulkheads by use of ladders; a further use of chemicals was required and it soon became obvious that further butterworthing was necessary in order to properly clean the tanks. To do this latter job, Grimaldi ultimately hired the Maritec Company.
On April 11, James Ryan, President of Wilmar, who had been out of the city, arrived home and went aboard the PERSEO. He immediately recognized the fact that the actual cost to Wilmar of cleaning the tanks of the vessel would greatly exceed the $31,000 set as a maximum in the contract. He informed Grimaldi that his company had already expended the sum of $36,000, and that it could not complete the contract on the terms originally agreed upon. Whereupon Grimaldi stated that he was aware of that fact and he further stated that according to his records, Wilmar had actually expended the sum of $36,100. Grimaldi then requested Wilmar to continue with the work with the understanding that Siosa would pay to Wilmar all of the actual costs of...
To continue reading
Request your trial
-
Folksamerica Reinsurance v. Clean Water, Ny
...(quoting 7A JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ .230[3], at 2773 (2d ed.1948))); Wilmar Marine Eng'g & Sales Corp. v. M/V Perseo, 278 F.Supp. 345, 347, 352 (E.D.La.1967) (exercising admiralty jurisdiction over an oil tank cleaning 5. Cf. Atl. Transp. Co. of W. Va. v. Imbrovek......