The opinion of the court was delivered by: SHAPIRO
Petitioners, Sun Schiffahrts, G.m.b.H. & Co., K.G., German owners of the motor tanker Southern Sun, a Liberian flag vessel, and Sun Overseas Transport, Ltd., a Liberian corporation (owned by a Delaware Corporation) (collectively "Sun"), brought this action as bareboat charterer for exoneration from and limitation of liability pursuant to 46 U.S.C. § 183 et seq. The tanker, chartered by Sun Oil Corporation of Pennsylvania, was carrying Libyan crude oil purchased by Sun Oil Trading Co. from the National Oil Company of Libya ("NOC") and delivered at Es Zueitina, Libya; it washed aground in a violent storm while attempting to unmoor from an off-shore oil terminal located at Es Zueitina. Defendant Occidental of Libya, Inc. ("Oxy"), a Delaware Corporation, operator of the terminal and co-owner together with NOC as transferee of the Government of Libya, filed a claim against Sun for alleged damage to its equipment and facility. Sun counterclaimed against Oxy for damage to the Southern Sun and its cargo.
The trial has been trifurcated. Phase I considered these issues: a) choice of law; and b) the validity and meaning of a document called a Tanker Loading Advice ("TLA") proffered by Oxy as a condition to berthing at the terminal and signed on behalf of Sun. Oxy claims the TLA not only prevents Sun from recovering damages for Oxy's negligence but also allows Oxy to recover damages from Sun, even if caused by Oxy's culpable conduct; after determining the validity and construction of the TLA as to exemption from liability and indemnification the issues of comparative negligence of the parties and amount of damages remain to be tried.
For the reasons stated below, the court finds that: a) the law of Libya determines the validity and meaning of the TLA; b) the TLA is a valid contract; c) the provision that its terms and conditions are construed in accordance with English law is a valid choice of law; d) by the terms of the TLA, Paragraphs 2 and 3 exempt Oxy from liability; and e) Paragraph 4 cannot be construed to require Sun to indemnify Oxy for Oxy's negligence. Therefore, on the trial of liability in Phase II Sun will be denied recovery for any damage resulting from the advice or assistance of the Mooring Master or the services of mooring launches, personnel or furnishing of gear under his supervision and control. Whether Sun or Oxy recovers from the other must now be determined by trial of the issue of the comparative negligence of the parties in causing their loss or damage. The trial of Phase III on the amount of loss or damage and the applicability of the Limitation of Liability Act will follow.
1. Petitioner Sun Schiffahrts G.m.b.H. & Co., K.G., a German partnership (consisting of a corporation serving as a general partner, Sun Schiffahrts, G.m.b.H., and Sun Schiffahrts, K.G., a partnership of individual citizens), at all material times owned the oil tanker Southern Sun. Both Sun Schiffahrts, G.m.b.H. and Sun Schiffahrts, K.G. were formed and registered under the laws of Germany.
2. Petitioner Sun Overseas Transport, Ltd. is a Liberian registered corporation. Sun Overseas Transport, Ltd. was owned at all material times by Marine Investment Company of Delaware, a Delaware corporation, which in turn was wholly owned by Sun Company, Inc., a Pennsylvania corporation. Sun Company, Inc. produces and markets refined petroleum products, including Sunoco gasoline.
3. On January 29, 1971 Sun Overseas Transport, Ltd. entered into a contract entitled "Time Charter Contract" with Sun Schiffahrts G.m.b.H. & Co., K.G. for the use of the Southern Sun which was still under construction in Bilbao, Spain.
5. At all material times Oxy owned a 49% interest in a tanker terminal at Es Zueitina, Libya; the National Oil Company of Libya ("NOC"), as transferee of the Government of Libya owned a 51% interest, following nationalization in 1973. Oxy operated the terminal.
6. Oxy is a subsidiary of both Occidental Petroleum Corporation and Occidental Oil and Gas Corporation, both of which are incorporated in the United States and ...