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Butcher v. Dravo Corp.

March 25, 2009

MICHAEL BUTCHER, PLAINTIFF,
v.
DRAVO CORPORATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge

Doc. Nos. 70, 74, 81 & 96

OPINION AND ORDER

LENIHAN, M.J.

This case involves the interpretation and application of Sections 5(a) and (b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(a) and (b) (1984), to claims of negligence and for indemnity and/or contribution, arising out of injuries Plaintiff sustained while working as a longshoreman for his employer, Price Inland Terminal Company ("Price"). Currently before the Court for disposition are two motions for summary judgment and two counter-motions for summary judgment.

Price has moved for summary judgment (Doc. No. 70) on: (1) the complaint filed by Plaintiff Michael Butcher and the third party complaint filed by Defendant and Third Party Plaintiff Dravo Corporation ("Dravo Corp.") in Civil Action 01-1505; (2) the third party complaint filed by Dravo Lime Corporation ("Dravo Lime") in Civil Action 02-1157; and (3) the complaint filed by Plaintiffs American Commercial Lines, LLC ("ACL") and American Commercial Barge Lines ("ACBL") in Civil Action 01-1357.

ACL and ACBL have moved for summary judgment (Doc. No. 74) on: (1) Michael Butcher's damages claims against them in Civil Action No. 00-927; (2) Dravo Corp.'s negligence claims against them in Civil Action Nos. 00-927 and 01-1505; and (3) ACBL's claims for contractual indemnity against Dravo Lime in Civil Action No. 02-1157 and against Price in Civil Action No. 01-1357. In response to both summary judgment motions, Dravo Corp. and Dravo Lime (collectively, the "Dravo parties") have filed counter-motions for summary judgment against Price and ACL and ACBL (Doc. Nos. 81 & 96, respectively), which are also before the Court for disposition.

I. PROCEDURAL HISTORY

This litigation consists of four separate lawsuits. The first civil action, a complaint for exoneration from or limitation of liability, was filed on May 11, 2000 by ACL and ACBL at Civil Action No. 00-927. In that case, a claim for damages (and amended claim) were filed by Michael Butcher (Doc. Nos. 9 & 20). Default was entered by the Clerk (Doc. No. 12) against Price, Dravo Lime, and two other entities not parties to these lawsuits. Subsequently, Dravo Corp. was granted leave to file a claim nunc pro tunc (Doc. No. 37).

The second civil action, alleging admiralty and maritime claims against Price under the LHWCA and for indemnity and/or contribution, was filed by ACL and ACBL at Civil Action 01-1357 on July 20, 2001. Price in turn filed a third party complaint against Dravo Lime Corporation ("Dravo Lime") (Doc. No. 11) asserting claims for negligence, indemnity and/or contribution.

The third civil action, commenced on August 8, 2001 by Michael Butcher at Civil Action No. 01-1505, is the present action. Butcher brought suit against Dravo Corporation ("Dravo Corp.") for negligence and strict liability under Section 402A of the Restatement (Second) of Torts alleging personal injuries sustained on October 5, 1999 while working for Price. In response, Dravo Corp. filed a third-party complaint against ACL, ACBL, and Price (Doc. No. 8) for negligence, indemnity, and/or contribution. Price, in turn, filed a third party complaint against Dravo Lime (Doc. No. 11 in Civ.A. No. 01-1357*fn1 asserting claims for negligence, indemnity and/or contribution. Subsequently, Dravo Lime filed a cross-claim against ACL and ACBL (Doc. No. 32) asserting claims for negligence, indemnity and/or contribution, and breach of contract.

The fourth and final piece of the litigation puzzle is the complaint filed on June 28, 2002 by ACL and ACBL against Dravo Lime at Civil Action No. 02-1157, alleging admiralty and maritime claims under the LHWCA and claims for negligence, indemnity and/or contribution. In turn, Dravo Lime filed a third-party complaint against Price (Doc. No. 8) for negligence, breach of contract, indemnity, and/or contribution.

While all four actions were pending, ACL and ACBL filed for bankruptcy under Chapter 11 on February 4, 2003, and all four actions were administratively closed. Almost four years later, on January 30, 2007, the cases were reopened and an order was entered consolidating all four actions, with Civil Action No. 01-1505 being designated as the lead case. After the completion of fact discovery, Price and ACL/ACBL moved for summary judgment, and Dravo Corp. and Dravo Lime filed counter-motions for summary judgment. The motions have been fully briefed and responded to, and are now ripe for disposition.

II. FACTS

For the most part, the following material facts are not in dispute. On October 5, 1999, Michael Butcher was employed by Price as a longshoreman. On that date, Butcher was assisting in the unloading of Barge DM-1878 ( "Barge"), specifically, the closing of a cover or lid on the Barge. During the closing of the cover, a pad-eye, to which the cable used to pull the lid closed was attached, pulled free from the lid. Butcher, who was standing on the cover when the pad-eye broke loose, was flipped into the air and landed on the bottom deck of the Barge, sustaining serious personal injuries. (Butcher's Add'l Stmts. Relevant to Price's Mot. for Summ. J. (Doc. No. 88), ¶¶ 79, 83.) Butcher sustained these injuries while acting within the course and scope of his employment. Under the LHWHA, Butcher has received and continues to receive workers' compensation benefits from Price as a result of these work related injuries.

Barge DM-1878 was manufactured by Dravo Corp. and sold to a third-party in 1977.*fn2 At the time of the accident, ACL owned the Barge and had chartered it to ACBL.*fn3 Dravo Lime, which mines and sells bulk lime, contracted with ACBL to provide barge transportation for the shipment of lime from a Dravo Lime facility to its customers. The terms of this agreement were originally set forth in the Transportation Agreement dated October 3, 1995 between Dravo Lime and National Marine, and the Addendum thereto ("Transportation Agreement"), which extended the term of that agreement through December 31, 2001.*fn4 (Tab A, App. in Supp. of ACL/ACBL's Mot. for Summ. J. (Doc. No. 78).) ACBL and Dravo Lime also entered into the Contract of Affreightment dated March 1, 1999, which includes the parties' agreement regarding barge transportation of Dravo Lime's lime product and provides for the semi-annual adjustment of the freight rate and daily demurrage through December 31, 2008.*fn5 (Id.) Dravo Lime contracted with Price to unload its lime from ACBL's barges onto Price's facility, store the lime, and then load it onto trucks (which were not owned by Price) for transport from Price's facility to customers of Dravo Lime, as more fully set forth in the Amended and Restated Terminaling Agreement dated March 1, 1999 ("Terminaling Agreement") between Dravo Lime and Price.*fn6 (Ex. 10, App. in Supp. of Price's Mot. Summ. J. (Doc. No. 73).)

ACBL delivered empty barges to Dravo Lime's empty barge fleeting area, and Dravo Lime or its contractor then moved the empty barges to Dravo Lime's loading area. Dravo Lime used its employees to load these barges at its facility in Maysville, Kentucky. ACBL provided the crew necessary to transport the barges containing Dravo Lime's product to the fleeting area at the destination requested by Dravo Lime. For shipments going to Price, ACBL normally dropped the barges off at Neale's Towing,*fn7 with whom ACBL had contracted to deliver the loaded barges to Price. Once a barge was delivered to Neale's Towing's fleeting area, Dravo Lime was not involved in the coordination of either the delivery of the loaded barge to Price's facility or the return of the empty barge back to Neale's Towing's facility. (Doc. 88, ¶ 56.)*fn8 Neale's Towing and Price communicated with each other regarding the timing of delivery to and recoupment of the barges from Price's fleeting area and/or unloading dock. When it was ready to unload a barge or have an empty barge picked up, Price would contact Neale's Towing to request delivery or pick-up, and Neale's would move the barge to or from Price using its own crew. When Neale's Towing dropped off a barge to be unloaded at Price, it is unclear whether Neale's crew or employees of Price actually tied up the barge. Price possessed a tow boat which was operated by Price employees and was used to move barges into position and back and forth between its fleeting and unloading areas, after they were dropped off by Neale's Towing.

Price's deck hands would facilitate the fleeting process by disconnecting a barge from its moorings in the fleeting area and then notifying the towboat pilot that he could proceed to move the barge to the unloading area. (ACL/ACBL's Supp. Material Facts in Resp. to Price's Concise Stmt. of Material Facts (Doc. No. 93), ¶ 60.) In addition, employees of Price put markers or hazard lights on the corners of barges kept overnight at their facility, including the lime barges, and they were responsible for removing and placing the markers or hazard lights when moving barges in and out of Price's fleeting areas. (Doc. No. 93, ¶ 61; Doc. No. 88, ¶¶ 64-65.) A Price deckhand would then ride either the towboat or the barge to the unloading area. (Doc. No. 93, ¶ 62.) Once the towboat reached the unloading area, the Price deckhand--with the assistance of Price's crane helper or laborer--would tell the towboat pilot how far they were from the dock and tie off the barge. (Id. at ¶ 63.) Price's deckhands would tie barges, wire them to other barges, and move them into the dock so that the crane could unload them. (Id. at ¶ 64.) Price's laborers would help the crane operator by moving barges back and forth, untying them and tying them back up at the dock. (Id. at ¶ 65.)

As part of the loading and unloading process, the crews employed by Dravo Lime and Price would open and close the barge covers. Barge covers are mounted on wheels. (Doc. No. 75, ¶16.) The barge covers are opened and closed by attaching cables to either a pulling lug or lifting lugs on the covers and then pulling on the cables.*fn9 (Id. at ¶ 17.) A pulling lug is located along the center line of the cover and is designed to help the cover roll along and go parallel to the tracks. (Carter Dep. at 148-49.) The lifting lugs, or pad-eyes, are located in the four corners of the covers and are more designed to lift the covers, although a lifting lug can be used to pull a cover. (Carter Dep. at 148.) A pad-eye is a steel loop that is welded to a square plate called a doubler which, in turn, is welded to the top of the cover. (Doc. No. 75, ¶ 20.) One of the ways to determine the fitness of a weld is by visual inspection. (Id. at ¶ 21.) If a pad-eye's doubler becomes partially separated from the barge cover, this can be discovered by a visual inspection, typically by noting whether the lime residue on the pad-eye was cracked or loosened. (Id. at ¶ 22.) A crack appears as a dark line in sharp contrast to the white lime residue. (Id.) However, the absence of any cracks does not necessarily mean the weld is sound. (Doc. No. 85, ¶ 22; Doc. No. 97, ¶ 22.)

When the empty or loaded lime barges were located at Dravo Lime's facilities, Dravo Lime employees filled out barge inspection reports and forwarded them to ACBL. (Price's Concise Stmt. of Material Facts in Supp. of its Mot. for Summ. J.(Doc. No. 72), ¶ 39; Dravo Parties' Resp. Concise Stmt. (Doc. No. 82), ¶ 39.) If welding or more significant repairs were required to a barge, ACBL would be contacted to arrange for repairs to be made. (Doc. No. 72, ¶ 40.) For example, Renee Tracanna of Dravo Lime testified that whenever she became aware of a loose pad-eye, pulling lug or lifting lug, she reported it to ACBL, and it would always be repaired.*fn10 (Tracanna Dep. at pp. 16,19-20 (Doc. No. 78, Tab L).)

C&C Marine Maintenance, Inc. ("C&C") performed maintenance on ACBL's barges, including Barge DM-1878. (Doc. No. 75, ¶ 23.) John Wicker at ACBL requested and/or approved all repairs to its barges by C&C. (Buchanan Dep. at 9 (Doc. 78, Tab G).) Generally, C&C was contacted by Bob Carter at Dravo Lime regarding cleaning the barges, and received calls or faxes from him about a problem with a barge to look for when the barge came in for maintenance or repairs, but Carter never requested repairs be made nor did he authorize them. (Id. at 15, 38-39.) It was C&C's practice that every time a barge came in for work, a visual inspection was conducted of the fittings and welds, which included removing the lime residue from a barge's welds to inspect them. (Id. at 24-25.) C&C would use a hammer or similar tool to chip away lime residue in order to inspect the welds. (Doc. No. 75, ¶ 24.) C&C's inspection practice included the inspection of doubler plates and lug welds on pad-eyes. (Id. at ¶ 25.) If C&C discovered a bad weld or a pad-eye that appeared to be coming off, C&C would report that information to ACBL and make the necessary repair. (Id. at ¶ 26.) After the repairs were made, C&C would have a foreman or another set of welders inspect the barge again to make sure nothing was missed. (Id. at ¶ 27.)

Specifically, with regard to Barge DM-1878, C&C performed maintenance (cleaning/washing) and/or repairs on the Barge and/or its covers on four occasions from October 27, 1997 through July 30, 1999. (Doc. No. 78, Tab M.) In addition, the barge history report on Barge DM-1878 indicates that repairs were made by C&C on July 30, 1999, August 17, 1999, and September 21, 1999, but does not indicate the nature of the repairs. (Second Wicker Dep. at 32-33 (Doc. No. 78, Ex. H); Ex. K, ACL/ACBL's Second Resp. App. (Doc. No. 111).) Also, correspondence was sent to C&C from Dravo Lime on two occasions indicating repairs needed to be made: (1) On April 6, 1997, it was noted that the low cover # 5 had a pulling eye that was ready to come off and needed to be welded; and (2) on October 20, 1997, bucket damage was reported. (Doc. No. 78, Tab M.) Dravo Lime's Maysville division also completed three barge inspection reports on Barge DM-1878 between August 4 and September 28, 1999. (Id. at Tab N.) On August 4, 1999, the inspection report noted that three of the four wheels on cover # 1 needed to be replaced. (Id.) On August 23, 1999, the inspection report noted that at least three of the wheels on the #1 cover were replaced, and on September 28, 1999, the reports indicate that two of the wheels were off on several covers, including the #1 cover. (Id.) In addition, in facsimile correspondence dated August 11, 1999, Bob Carter at Dravo Lime informed Dave Fleming at ACBL of a water leak in Barge DM-1878 and of his understanding that after the Barge was unloaded it would go to repair. (Id.) In facsimile correspondence dated August 30, 1999, Carter informed Fleming that the barge inspection reports indicated that Barge DM-1878 has had repeated problems with the wheels on the #1 and #2 covers, which appeared to be related to some distortion in the port coaming. (Id.) Around that same time, the lime barge report sheet from the Pleasants Power Station noted a dent in cover #1 and that the "covers moved moderate through the entire unloading operation." (Id. at Tab O.) Dravo Lime did not report any problems with the cover #1 pad-eye on Barge DM-1878. (Doc. No. 75, ¶ 34.)

As part of the loading process, Dravo Lime employees would have inspected the pad-eyes on the Barge's covers. (Id. at ¶ 39.) The covers were then closed. (Id.) During the process of transporting the Barge to Price for unloading, ACBL would not have reopened the covers, and the covers would have remained closed until the Barge was delivered to Price for unloading. (Id. at ¶ 40.)

John Wicker of ACBL would periodically inspect the lime barges, which included a visual inspection of the welds. (Doc. No. 72, ¶ 38; Second Wicker Dep. at 17-18.) He would not, however, scrape or chip off any heavy lime build-up on the covers or fixtures in order to inspect the welds. (Second Wicker Dep. at 17-18.) ACBL made the decisions regarding when to take a barge out of service or drydock it in order to perform repairs. (Doc. No. 72, ¶ 41.) Wicker testified that he would have expected that if Dravo Lime noticed something was wrong with a barge or encountered a problem with removing or closing the covers, that Dravo Lime would have reported it to him. (Second Wicker Dep. at 45.) He further testified that if Price experienced a problem with a barge or removing or closing covers during unloading, he expected Price to inform Dravo Lime, and Dravo Lime to notify him. (Id. at 45-46.)

Pursuant to the Terminaling Agreement, Price was expected to inspect barges carrying Dravo Lime's lime product ("lime barges") upon arrival and report any observed problems with said barges to Dravo Lime's Supervisor of Field Services, Bob Carter, either via fax or phone call.*fn11 (Doc. No. 75, ¶ 35; Doc. No. 88, ¶¶ 60-61.)*fn12 Price did not have any employees dedicated solely to performing maintenance on the lime barges that it unloaded (Doc. No. 72, ¶ 43), but Price would resolve minor maintenance problems, such as putting lids back on track and pumping out voids when necessary (Doc. No. 88, ¶¶ 62-63). Price's policy was to inspect pad-eyes before attaching cables to them, and Price's employees would not attach a hook to a pad-eye that had an obvious problem upon visual inspection. (Doc. No. 75, ¶ 36.) Price did not observe any problems with the subject pad-eye prior to the accident. (Id. at ¶ 37.)

On the day of Butcher's accident, employees of Price had trouble with the covers pulling hard on Barge DM-1878, and when they opened the covers, they also noticed the Barge had a water leak. (Doc. No. 88, ¶ 67.) The Price employees notified Donald Wagner, the plant superintendent for Price, who completed a form noting both the water leak and that the covers were pulling hard. (Id. at ¶¶ 68-69.) Wagner then called Bob Carter of Dravo Lime to notify him of the two problems and was informed that Carter was on his way to Price's terminal. (Id. at ¶¶ 70-71.) When Carter arrived at Price's facility, Wagner showed Carter the form he had completed earlier regarding the two problems with Barge DM-1878. (Id. at ¶ 72.) Carter entered onto the Barge prior to Butcher's accident, but focused on the water leak. (Id. at ¶ 73.) Carter left Price's facility before Price's crew commenced their attempt to close the covers on Barge DM-1878. (Id. at ¶ 74.) Neither Carter nor Wagner gave any instructions to Price's employees regarding the closing of the covers.*fn13 (Id. at ¶ 75.)

Late in the afternoon of October 5, 1999, Butcher and another employee of Price, Stephen Petty, were attempting to close the covers on Barge DM-1878, with Petty operating the front end loader (on the dock) that was pulling the cable attached to the covers. (Id. at ¶¶ 76-77.) Another Price employee, Charles Miller, arrived at the Barge when the last cover (cover no. 1) was almost closed. (Id. at ¶ 78.) Miller and Butcher were both positioned on the barge cover when the accident occurred.*fn14 (Id. at ¶ 79.) Miller moved the cable hook from the center pad-eye at the front of the Barge to a pad-eye at the left-hand corner (or starboard side) of the Barge, because the cover would not close the final foot when positioned in the front center pad-eye.*fn15 (Id. at ¶¶ 80-81.) Before attaching the hook to the pad-eye at the left-hand corner, Miller stated he looked at the pad-eye and did not see anything wrong with it. (Miller Dep. at 20.) After Miller moved the cable hook, a signal was given to Petty, who began to move the front end loader, which in turn pulled the cable. (Doc. No. 75, ¶ 82.) Within a few seconds of when Petty began moving the front end loader, the doubler (with the pad-eye still attached) broke loose, and Butcher was flipped into the air and landed on the bottom deck of the Barge.*fn16 (Id. at 83.)

On the day after the accident, Bob Carter from Dravo Lime and John Wicker from ACBL each independently inspected the Barge. Carter testified that the spot on the cover where the padeye's doubler was previously attached was marked by a clean black square. (Doc. No. 75, ¶ 49.) Similarly, Wicker testified that the spot was marked by "a brown square in the middle of a white piece of steel." (Id.) The area surrounding the square patch was covered with white lime residue. (Id. at ¶ 50.) Wicker also testified that it appeared that the weld had broken all the way around because there was a fresh break all the way around. (Second Wicker Dep. at 36-37.)

Robert Pennock, general manager of Price, also testified as to the condition of the pad-eye and weld shortly after the accident:

The pad eye was about . . . two and a half inches square that had been welded down to the deck of the lid. The weld was--it's what I would call an inferior weld to start with. It was not bonded well to both the pad eye and to the lid section of the barge.

Pennock Dep. at 26. After counsel for ACL/ACBL noted a continuing objection--that the questions about the weld called for speculation; expert opinion--Pennock further testified:

PENNOCK: I mean, I know what a good weld looks like.

MR. CAROSELLI: How do you know what a good weld looks like?

PENNOCK: I've had experience around welding all my life. When it's not welded and bonded in both pieces, where there are pieces it misses, that was obviously inferior.

MR. CAROSELLI: When you looked at that weld was there any discoloration to any part of the weld?

PENNOCK: There was only a small section of the pad eye that had a fresh break.

MR. CAROSELLI: Tell me what you mean by fresh break.

PENNOCK: Where the metal was shiny, the actual shiny metal where it had just broken off. Other portions--I would say it may have been attached. I'm having trouble with exact memory. I can't remember exactly. If it was 10 inches around it, there was probably 2 inches of it, 3 inches of it that had a fresh break. The other parts of it had been separated for some time and had discolored to a rust color.

Id. at 26-27. With regard to the Price's policy on inspecting the barges, in particular pad-eyes, Pennock testified as follows:

MR. CAROSELLI: How extensive of an inspection is the employee to make of the pad eye before connecting the hook to it?

PENNOCK: Look at it, see if it looks safe and go on.

MR. CAROSELLI: Is the person to move the lime away from the pad eye to see if it's adhering to the deck or to the lid or the covers?

PENNOCK: No.

MR. CAROSELLI: That's not been a policy.

PENNOCK: No.

MR. CAROSELLI: Have you ever heard about pad eyes separating from lids or covers anywhere?

PENNOCK: Not particularly, no.

MR. CAROSELLI: . . . In your experience have you ever seen or heard about the pad eye being loose?

PENNOCK: No.

Id. at 38-39. When later questioned by ACL/ACBL's counsel on whether it would be reasonable under Price's inspection policy to brush away loose dust or loose lime or something like that on the pad-eye that was about to be hooked up to and look at it before hooking up to it, Pennock responded in the negative, explaining:

Most of the time on these lime barges when there's lime on there it has taken the form--it's powdered lime that got wet. It's taken more the form of rock, therefore, it's a solid material. And when you inspect something--it would be like paint. It's related to paint. You have painted this pad eye and it's got this coating over it. And if the pad eye--if it looked like the paint was cracked or the lime had broken loose around it, then you would be suspicious of it and look further. In this case apparently the lime was not broken. I mean, I'm not saying in this case it wasn't. I'm just saying that's what I wouldn't think that that would be part of [Price's] policy. The same as it wouldn't be part of [Price's] policy to remove the paint from the pad eye to see if there was anything underneath it.

Pennock Dep. at 51-52. Pennock further stated that after the pad-eye came off the barge cover, he observed lime caked on top of the pad-eye base, as well as around the blank area on the cover from where the pad-eye had been. (Id. at 53-54.)

As for the Barge covers themselves, subsequent testing revealed that they rolled properly without any problems. (Doc. No. 75, ¶ 51.)

III. THE CONTRACTS

Some of the rights and responsibilities of the parties are contained in three written agreements--the Transportation Agreement between National Marine, ACBL's predecessor in interest, and Dravo Lime*fn17 ; the Contract of Affreightment between ACBL and Dravo Lime; and, the Terminaling Agreement between Dravo Lime and Price. The pertinent sections of those three agreements are set forth below.

The Transportation Agreement, dated October 3, 1995, between National Marine and Dravo Lime, provided for the transportation of lime from Maysville, KY to Porterfield, OH, for the loading period of September 1, 1995 through December 31, 1995. (Doc. No. 78, Tab A.) By addendum, the Transportation Agreement was extended through December 31, 2001. (Id.) Paragraph 18 of the Transportation Agreement sets forth the rights and responsibilities of the parties with regard to loading, stowing, securing and unloading the cargo (lime). In particular, Paragraph 18 states that Dravo Lime:

shall provide all personnel [and] equipment necessary to effect proper loading and unloading of cargo and warrants that cargo shall be properly loaded, stowed and secured in the barge, and agree [to] release, indemnify, defend and hold [National Marine] harmless with respect to any loss, damage, injury, death, fine or penalty resulting from any breach of this warranty even with negligence on the part of [Dravo Lime] and even though any such loss, damage, injury, death, fine or penalty shall result in part from the fault or neglect of [National Marine], strict liab[ility] or unseaworthiness of any barge or vessel. (Id.) The Transportation Agreement also provides that it supersedes all other agreements, bills of lading or other documentation issued for shipment of the Dravo Lime's lime and shall exclusively be deemed the governing contract of carriage. (Id. at ¶ 26.)

On March 1, 1999, ACBL and Dravo Lime entered into a Contract of Affreightment, after negotiating a lower freight rate and the daily demurrage charge, in response to an ultimatum from from one of Dravo Lime's customers to either lower the price of lime or lose its business. (Doc. No. 97, ¶¶ 65-66.) The Contract of Affreightment provides, among other things: for the semi-annual adjustment of the freight rate and daily demurrage through December 31, 2008; that Dravo Lime is responsible for the proper loading and unloading of the cargo (¶ 11); that Dravo Lime agrees that while barges are in its care and custody or that of its agents, all U.S. Coast Guard requirements shall be complied with, including adequately mooring the barges with warning lights properly displayed (¶ 13); that ACBL agrees to "tender barges which are seaworthy in a condition suitable for the cargo to be carried" (¶14); that ACBL shall move the cargo at its convenience, either alone or with one or more other craft, and shall have the right to shift or interchange the tow from one towing vessel to another, or to procure towage from any other non-ACBL owned or operated vessel, to tie off the tow at any point and for any purpose, and to deviate from its route (¶15); that ACBL shall be liable for any loss of or damage to the shipment of Dravo Lime's cargo to the extent provided by law (¶ 19); and, that ACBL shall not be liable for and Dravo Lime "agrees to release, indemnify and hold harmless [ACBL], its subcontractors, affiliates and the vessels employed by it or them, in the performance of the cargo movements [under the Contract of Affreightment] for any loss of, damage to or expense in connection with any article shipped . . ." (¶20). (Doc. No. 78, Tab A.) The Contract of Affreightment contains neither a superseding agreement clause, nor an integration clause.*fn18

With regard to the Terminaling Agreement, Article Two states that Price shall provide the following services to Dravo Lime:

(a) receiving loaded barges at the Price dock;

(b) unloading barges, shifting barges and placing barges for pickup;

(c) storing lime;

(d) loading trucks from storage facility;

(e) weighing loaded trucks;

(f) issuing and controlling Dravo Lime bills of lading;

(g) advising Dravo Lime on a daily basis of the previous day's activities, the form of such advice as the ...


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