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HERCULES POWDER CO. v. COMMERCIAL TRANSPORT CORP.

July 13, 1967

HERCULES POWDER COMPANY, PLAINTIFF,
v.
COMMERCIAL TRANSPORT CORPORATION, A CORPORATION, AND BARGE CHEM VI, HER TACKLE, ETC., DEFENDANTS.



The opinion of the court was delivered by: Will, District Judge.

OPINION

Plaintiff brings this action to recover for cargo damage allegedly caused by the unseaworthiness of the Barge Chem VI, a tank barge. Plaintiff entered into a contract of charter with defendant Commercial Transport Corporation (Commercial) to carry a cargo of bulk turpentine aboard defendant's vessel, the Barge Chem VI. On December 11, 1962, 330,308 gallons of turpentine were loaded on board the barge in the Port of Gulfport, Mississippi. After arrival at the Port of Chicago, plaintiff alleges that it was discovered that 33,779 gallons of turpentine had leaked from the tanks into the bilges and rakes of the barge resulting in the contamination of 24,577 gallons with water and molasses and the loss of 9,203 gallons.

In their answer, defendants have asserted certain provisions of the contract of charter which are in the nature of affirmative defenses to the action. Plaintiff has moved to strike these defenses.

Paragraphs Twelve and Sixteen

Paragraph twelve of the contract entitled "SPECIAL PROVISIONS" reads as follows:

  Carrier will clean barge for its account at
  Avondale Marine Ways, New Orleans, Louisiana,
  subject to inspection and acceptance by A.M.
  Judge & Company as suitable for the intended
  cargo. Acceptance by Shipper's inspector will
  constitute full performance by Carrier of its
  responsibility.

Paragraph sixteen which is entitled "CLEANING" reads as follows:

  Carrier shall tender barges as stated on the face
  hereof; if further cleaning is required the cost
  shall be for Charterer's account and time so used
  shall count as used lay time. Loading of the
  barges shall constitute Charterer's acceptance of
  the suitability of the barges for the intended
  cargo.

Defendants contend that the language of the two provisions are in effect a waiver of a warranty of seaworthiness by plaintiff. Primary reliance is placed upon the language of paragraph sixteen wherein it reads that loading constitutes plaintiff's "acceptance of the suitability of the barge for the intended cargo." By itself, that language would tend to support defendants' position, but read in context of the provision entitled "Cleaning" and where all other language in the paragraph relates to cleaning, it is obvious that the purpose of the clause is to relieve the carrier from responsibility for damage to the cargo which is the result of unclean tanks after the shipper has inspected the tanks and loaded the cargo. Similarly, paragraph twelve obligates the carrier to clean the barge, subject to "acceptance by Shipper's inspector." The complaint alleges that the tanks leaked, the damage to the cargo being the result of this factor, not unclean or contaminated tanks.

On their face, these two provisions of the contract are susceptible of a single interpretation, namely, that they are restricted to the subject of cleaning the barge. Nothing in the contract even hints of a contrary conclusion. There being no allegation in the complaint pertaining to damage caused by unclean conditions, paragraphs twelve and sixteen of the contract and all references thereto should be stricken from the answer.

Paragraphs Seventeen and Twenty

In asserting these two paragraphs, defendants have raised the more difficult questions of whether plaintiffs have breached the contract and therefore cannot claim damages caused by alleged unseaworthiness and/or whether the contract provisions release defendant from liability for cargo damage. The relevant provisions read as follows: Paragraph seventeen entitled "INSURANCE":

  Carrier's equipment used hereunder shall be
  covered by Hull and P & I Insurance or equivalent
  at Carrier's expense. Cargo carried hereunder shall
  be insured under usual bulk oil clauses by
  Charterer at Charterer's expense and Carrier ...

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