Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, No. 82-7106

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before GODBOLD; FAY
• Citation: 695 F.2d 1294
• Parties: WARRIOR TOMBIGBEE TRANSPORTATION COMPANY, INC., Plaintiff-Appellee, v. M/V NAN FUNG etc., Defendant, John K. Irish, Inc., Defendant-Appellant.
• Docket Number: No. 82-7106
• Decision Date: 17 January 1983

Page 1294

695 F.2d 1294 WARRIOR TOMBIGBEE TRANSPORTATION COMPANY, INC., Plaintiff-Appellee,
v.
M/V NAN FUNG etc., Defendant,
John K. Irish, Inc., Defendant-Appellant. No. 82-7106. United States Court of Appeals,
Eleventh Circuit. Jan. 17, 1983.

Sidney Schell, Mobile, Ala., for defendant-appellant.

J.M. Druhan, D. Charles Holtz, Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Page 1295

Before GODBOLD, Chief Judge, FAY and SMITH ^*, Circuit Judges.

FAY, Circuit Judge:

Plaintiff, Warrior Tombigbee Transportation Co., Inc. ("Warrior"), brought this maritime action, 28 U.S.C. Sec. 1333, against John K. Irish, Inc. ("Irish") seeking judgment on a contract claim for the transportation by Warrior of approximately 30,000 metric tons of coal from Cordova, Alabama to Mobile, Alabama. Warrior moved for partial summary judgment. The trial court issued an order with findings of fact and conclusions of law which granted Warrior's motion for partial summary judgment, awarding damages in the sum of $262,136.20 plus interest and costs to Warrior. Irish appealed the final judgment entered on the summary judgment order. We reverse the district court's grant of Warrior's motion for partial summary judgment.

I.

At the outset, it should be noted that the facts of this case are in dispute. Irish is a coal broker which buys and sells coal both domestically and in the export market. Warrior is an Alabama corporation whose principal business is the furnishing of inland barge transportation for non-regulated commodities.

On February 20, 1981, Irish entered into a contract with the Scandinavian Trading Company to deliver approximately 30,000 metric tons of export coal on board a ship to be nominated by Scandinavian Trading Company at Mobile. According to Irish's version of the facts, on February 20 it also entered into a contract with Associated Fuels, Inc. ("Associated") whereby Associated was to deliver approximately 30,000 metric tons of coal loaded on board a vessel to be nominated on an L.S.T. basis for $45.00 per ton. ¹ On or about the 20th day of February, 1981, Associated contracted with Moss Enterprises, Inc. ("Moss") to deliver the necessary coal onboard a vessel at Mobile during the first week in March, 1981, on an L.S.T. basis for $41.75 per ton. Moss arranged with Warrior for barge transportation to Mobile and with Cooper Stevedoring Company for stevedoring services in loading the vessel at Mobile.

Thus, according to Irish's version of the facts, as of the 20th day of February, it had contracted to deliver approximately 30,000 metric tons of coal to the Scandinavian Trading Company onboard Scandinavian's vessel at Mobile during the first week in March 1981, and had contracted with Associated for the L.S.T. delivery of such coal. Associated had sub-contracted with Moss to deliver the coal on an L.S.T. basis onboard Scandinavian's vessel and Moss had arranged with Warrior to transport the cargo.

Warrior controverts Irish's description of the facts. Warrior avers that on or about February 25, 1981, the vice-presidents of Warrior and Irish reached a telephonic agreement whereby Warrior would provide certain services consisting of the transportation of approximately 33,000 net tons of coal from Cordova, Alabama, to Mobile, Alabama, for barge-to-ship loading. The terms of the oral agreement were confirmed in a letter, dated February 25, 1981, written on behalf of Warrior by its vice-president, Ron Brown (the "Letter"). The Letter also included a request that Irish indicate its assent to the terms of the contract by its vice-president, David B. Tooker signing on behalf of Irish in a space provided at the bottom of the Letter. On February 26, 1981, Tooker received the letter on behalf of Irish. After telephoning Brown, Tooker added language above his signature line which stated that Irish accepted an additional $1.70 barge rate, over and above Warrior's normal rate because of the short time frame involved, but that Warrior's freight would be paid to Moss, who in turn

Page 1296

would tender payment to Warrior. This mode of payment was earlier accepted by Brown orally. After incorporating the change into the Letter, Tooker attached his signature in the space provided and forwarded the Letter to Brown.

Irish disputes Warrior's assertion that during their February 25 telephone conversation a contract was reached whereby Irish undertook to pay Warrior all of its freight, shifting, and demurrage charges in connection with the transportation of the subject coal to Mobile; Irish argues that during the February 25 telephone conversation it explained to Warrior that it contracted for the coal on an L.S.T. basis and that Associated was responsible for its transportation. Irish further submits that after receiving Warrior's Letter on February 26, its vice-president telephoned Warrior and again explained that the shipment was L.S.T., the responsibility for the barge transportation was that of Associated and not Irish, and that Irish had agreed to guarantee the additional $1.70 only, which it proposed to pass on to Associated; its vice-president then read to Warrior its proposed reply, wrote down his comments, and signed and sent the Letter with his comments to Warrior. Thus, according to Irish, by its officer attaching the additional language and his signature to the Letter and forwarding the Letter to Warrior, it intended to guarantee only the additional $1.70 barge rate; it did not intend for the Letter to be a contract for barge transportation.

From March 3, 1981, until March 18, 1981, the coal was transported by Warrior by barge from Cordova, Alabama to Mobile, Alabama. Warrior invoiced Moss for the barge transportation. Of the sum of $326,255.37 that was invoiced, Moss paid only $64,119.17. When Moss did not pay the balance due, Warrior invoiced Irish for the sum of $262,136.20 based upon the full $9.50 per ton, plus shifting charges at Mobile. Claiming that all payments, including payment for transportation services, were made to Associated, Irish refused to pay the sum demanded by Warrior; hence, this lawsuit was filed by Warrior. The district court entered a summary judgment in favor of Warrior and against Irish, from which judgment this appeal is taken.

II.

Summary judgment should be entered only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1368 (11th Cir.1982); Impossible Electronics, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1030 (5th Cir.1982). "In reviewing a decision granting or denying summary judgment, this court applies the same legal standards as those that control the district court in determining whether summary judgment is appropriate." Clemons, at 1368, citing Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981); United States Steel Corp. v. Darby, 516 F.2d 961, 963 (5th Cir.1975).

The party seeking summary judgment bears the exacting burden of demonstrating that there is no dispute as to any material fact in the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Marsh, 651 F.2d at 990-991. "In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion." Clemons, at 1368. "All reasonable doubts about the facts should be resolved in favor of the non-movant." Id., at 1369. A trial court must not decide any factual issues it finds in the records; if factual issues are present, the court must deny the motion and proceed to trial. Id.; Marsh, 651 F.2d at 991; Lighting Fixture & Electric Supply Co. v. Continental Insurance Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts. Clemons, at 1369; Lighting Fixtures & Electric Supply Co., 420 F.2d at 1213. If reasonable minds might...