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BRENNAN CORP. v. UNITED STATES

July 11, 1986

BRENNAN CORPORATION, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 In this proceeding, plaintiff Brennan Corporation ("Brennan") presents a damage claim for alleged breach of contract arising under a maritime charterparty agreement with the Military Sealift Command ("Sealift Command" or "MSC"). Defendant Sealift Command is a component of the United States Navy. Brennan seeks to recover demurrage which it claims Sealift Command owes under the contract and which plaintiff alleges was caused in part by wrongful acts committed by the Saras Refinery. At the time, the Refinery was acting at the behest of the Sealift Command and in connection with its performance of the charterparty contract with the plaintiff.

 Brennan's demurrage claim was resisted by Sealift Command and later denied by the Navy Contracting Officer. After exhausting all administrative avenues of relief, Brennan sought judicial relief before this Court. The trial was conducted without a jury. The matter was fully briefed and otherwise ably presented by counsel.

 The Court has reviewed the relevant exhibits, considered the testimony of the several witnesses, including their familiarity or lack of familiarity with maritime customs and practices, and otherwise assessed their credibility. For the reasons set out below, the Court determines that plaintiff Brennan is entitled to relief. In accordance with Rule 52, Fed. R. Civ. P., the required findings of fact and conclusions of law follow.

 FINDINGS OF FACT

 A.

 On September 17, 1981, Brennan entered into a tanker voyage charterparty contract (Pl. X-1) with the Sealift Command for the transport of jet fuel cargo, otherwise known as a clean or light petroleum product as opposed to crude oil. A vessel suited for the transport of such cargo is known as a "clean vessel" or a vessel in a "clean trade." The jet fuel cargo was to be transported from among a range of loading and discharging ports, all designated by the Navy. In the performance of the contract, Brennan provided the tanker Messinaki Anatoli ("Anatoli") as the transport vessel, identifying its two immediately prior cargoes and otherwise certifying, as required under the contract, that it was a "clean vessel" previously engaged in a "clean trade." The jet fuel cargo was to be taken on from the Saras Refinery located at the loading port -- Sarroch, Sardinia.

 On September 18, 1981, the Anatoli arrived at Sarroch, where it anchored and tendered notice of readiness to load. Saras Refinery did not designate a loading berth for the tanker until September 23. The charter contract provided that demurrage was to be charged six hours after the Anatoli tendered notice of readiness and that charges would accumulate until the vessel was berthed. Demurrage penalties are customarily assessed against the charterparty when there are delays to an arrived vessel not attributable to the vessel's fault.

 Tankers travel in ballast for safety and stability and, under the practice of the trade, the refinery provides deballasting facilities. The Anatoli's tanks contained ballast water, and the jet fuel cargo could not be loaded until the ballast was discharged.

 Prior to the charterparty contract with Brennan, the Navy through one of its components, the Defense Fuel Supply Center ("Center"), had contracted with Saras Refinery to provide deballasting facilities. (Pl. X-13) Plaintiff Brennan was not a party to that contract and indeed had no independent contract with the Refinery. A provision of that contract (Pl. X-13, p. 32, para. H52-02) required the Center to provide and pay for deballasting facilities and services to chartered vessels such as the Anatoli. During the period that deballasting services were provided by the Refinery, Brennan could not claim demurrage charges against the Sealift Command. Deballasting involves both the tanker and the shore facility. In this situation, Saras Refinery, the shore facility, provided ballast shore lines that were connected to the Anatoli's manifolds, and personnel of the shore facility specified the pressure that the tanker should use in pumping out the ballast. Once the shore lines were connected, the tanker valves were opened and the tanker began pumping out ballast.

 During the course of the trial, defendant's attorney attempted to show by cross examination of plaintiff's witnesses that the Anatoli should have had her pumps running before opening the valves. Other than the proffered questions, there was no factual basis whatsoever for counsel's suggestion. Indeed, the unchallenged and credible testimony of plaintiff's expert witness, Ravi Singh, and defendant's shipping adviser, John Caffery (who had had prior, extensive experience in tanker operations) showed that it would be an extremely dangerous practice to begin pumping before the manifold valves are opened. Indeed, their testimony showed that the resulting pressure could have caused serious damage to the ship's lines, or an explosion.

 In accordance with normal and acceptable procedures, the Anatoli connected to the shore line provided by the Saras Refinery, and the valves of the tanker were opened. Once that was done, the back pressure in the shore line drove heavy black fuel oil into the Anatoli's clean ballast tanks. When this contamination developed, the Anatoli issued a protest notice of responsibility to the Refinery. The defendant's inspector (Quality Assurance Representative), who was present during the ...


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