United States District Court, E.D. Louisiana
ERGON OIL PURCHASING, INC.
CANAL BARGE COMPANY, INC., SAYBOLT, L.P., AND SOUTHWEST SHIPYARD, L.P.
ORDER AND REASONS
D. ENGELHARDT, UNITED STATES DISTRICT JUDGE
2015, as discussed in the Court's prior Order and Reasons
(Rec. Doc. 30), Plaintiff hired two barges from Canal Barge
Company (CBC 7026 and 7028) to transport 48, 000 barrels of
naphthenic crude oil from Texas City, Texas, to Vicksburg,
Mississippi. Upon completion of the voyage, it was determined
that the cargo in one of the vessels, CBC 7028, had been
contaminated in transit. As a result, Plaintiff filed this
suit, seeking in excess of $2 million in damages, against
Defendants Canal Barge Company, Inc., Saybolt, L.P., and
Southwest Shipyard, L.P.
support of its claims, Plaintiff alleges, inter
alia, that Southwest failed to properly strip and clean
CBC 7078, prior to its loading, such that pre-existing
substances left in the barge's tankscaused the
subsequent contamination of approximately 20, 000 barrels of
Plaintiff's cargo.Plaintiff additionally alleges that
Saybolt, the survey company hired by Plaintiff to provide
inspection and monitoring services on Plaintiff's behalf,
failed to properly inspect the condition of CBC 7078 prior to
cargo being loaded, failed to insure the cargo was properly
loaded, and, finally, failed to timely notify Plaintiff of
the existence of potential contaminants aboard the barge,
such that Plaintiff was precluded from taking appropriate
preemptive action to protect its cargo.
motion by Southwest, the Court previously dismissed
Plaintiff's claims against it for lack of personal
jurisdiction. Now before the Court is a motion, filed by
Saybolt, asking the Court to dismiss Plaintiff's claims
in their entirety because Plaintiff did not notify Saybolt of
its claim within “45 days after delivery of the Saybolt
report.” Alternatively, Saybolt argues the maximum
amount of damages that Plaintiff can recover in this action
is limited to $20, 000, and, thus, requests that
Plaintiff's claims be dismissed to the extent they seek
an award of damages in excess of $20, 000.
support of its motion, Saybolt relies on a provision of the
“General Terms and Conditions” portion of the
“Preferred Rate Agreement, ” (“PRA”)
entered into by the parties in 2014, which states, in
7. LIMITATION OF LIABILITY
All claims must be made in writing within 45 days after
delivery of the Saybolt report regarding the work/services
or such claim shall be deemed as irrevocably waived.
Saybolt's liability under this Agreement or in
connection with any service hereunder will not exceed the
amount equal to ten times the charges payable for the
services which are the subject matter of the alleged
liability or the amount of USD 20, 000, whichever is less.
This remedy shall be the sole and exclusive remedy against
Saybolt arising out of its work.
carefully reviewed the parties' submissions, the record
herein, and applicable law, IT IS ORDERED
that Saybolt's motion to dismiss is DENIED IN
PART and GRANTED IN PART.
Specifically, the motion is denied to the extent it seeks a
complete dismissal of Plaintiff's claims based on the
45-day time period set forth above. Based on the authorities
cited by Plaintiff, the Court agrees that the provision is
contrary to Texas law, which governs the dispute by agreement
of the parties. See Tex. Civ. Prac. & Rem
Code § 16.071 (contract stipulation requiring notice of
a claim for damages as condition precedent to right to sue
not valid unless reasonable; requirement of notification
within less than 90 days is void); Id. at §
16.070 (“stipulation, contract, or agreement that
establishes a limitations period that is shorter than two
years is void”).
motion is granted, however, to the extent that Saybolt seeks
dismissal of Plaintiff's damage claims exceeding $20, 000
based on the limitation of liability set forth in the second
sentence of paragraph 7 of the parties' agreement. As
discussed in Saybolt's submissions, Texas law recognizes
such limitations as enforceable unless they violate public
policy, which generally occurs if a disparity of bargaining
power exists between the parties. See TEX. BUS.
& COM CODE § 2.179; Allright, Inc. v.
Elledge, 515 S.W.2d 266, 267 (Tex. 1974). No such
disparity is alleged here. Further, unlike liquidated damages
provisions, damage limits may be enforced without regard to
whether the limitation is a reasonable estimate of the
probable damages resulting from a breach. See TEX.
BUS. & COM CODE § 2.179; TEX. BUS. & COM CODE
§ 2.178; Glob. Octanes Texas, L.P. v. BP Expl. &
Oil Inc., 154 F.3d 518, 523 (5th Cir. 1998) (citing
Vallance & Co. v. DeAnda, 595 S.W.2d 587, 590
(Tex. Civ. App. 1980)). Accordingly, on the instant showing
made, the Court finds no basis for disregarding the $20, 000
the foregoing, the Court notes that, on page 7 of its
opposition memorandum, Plaintiff contends that “Saybolt
undisputedly knew of the impending harm and deliberately and
intentionally did not timely alert
[Plaintiff].” As urged by Saybolt, however, such a claim
“for the first time goes beyond breach of contract and
negligence and alleges an (unidentified) intentional
tort” that is not alleged in Plaintiff's complaint,
thus provides no basis for denial of Saybolt's motion
beyond that ordered herein. Should Plaintiff timely determine
that appropriate grounds exist for alleging such a claim,
consistent with the requirements of Rule 11 of the Federal
Rules of Civil Procedure, it must promptly seek leave to
amend its complaint to do so.
 The parties' submissions reflect
that the pre-existing substances included approximately 2,
750 remaining ...