The opinion of the court was delivered by: ARTHUR D. SPATT
In April 1990, the Texport Oil Company ("the plaintiff" or "Texport") purchased more than 500,000 barrels of Romanian gasoline. The seller was a Swiss company, BULK OIL A.G. ("Bulk Oil") which arranged for the transportation of the gasoline aboard the defendant vessel, the M/V Amolyntos ("the defendant" or "the Amolyntos"). The basis for this lawsuit is the claim by the plaintiff that when the gasoline aboard the Amolyntos arrived in New York Harbor, some of it was darker in color than when loaded aboard ship in Romania. The plaintiff contends that this darkened gasoline required additional treatment and expense and rendered it less marketable, to its damage.
The plaintiff Texport is an oil and gasoline trading company located in Houston, Texas. Texport does not own or operate gasoline stations and is not an end user of gasoline. Instead, it buys, blends and sells gasoline and other products to major oil companies, other trading companies or to end users. In 1990, for purposes of gasoline storage and blending, Texport leased shore tanks in two separate terminals in New Jersey, the GATX facility in Carteret and the Stolt facility in Perth Amboy.
The defendant vessel, the M/V Amolyntos, is an ore/bulk/oiler type tanker, sometimes referred to as an "OBO." This is significant since the vessel carries bulk products in addition to liquid cargo. The Amolyntos has nine cargo tanks, numbered one to nine from forward to aft. The cargo is loaded and discharged through the portside duct keel, which is a tunnel space running below the cargo tanks. The portside duct keel can also hold cargo and in this case held some of the gasoline at issue. The Amolyntos flies the Maltese flag, has submitted to in rem jurisdiction and provided security of $ 2,037,392.44 in lieu of the maritime arrest of the vessel.
On or about April 24, 1990, Bulk Oil, as seller, and Texport, as buyer, entered into a sales contract for 60,000 MT of "Rumanian Unleaded Gasoline." Texport purchased this gasoline to be used as a blending component to make merchantable gasoline for resale to end users or traders in the Port of New York. The sales contract listed specifications for the gasoline. The maximum Reid Vapor Pressure ("RVP") (an evaporation point test) was 9.0 and the minimum octane of the cargo was to be 85.0. For May and June 1990 in the Port of New York, the maximum RVP content for merchantable gasoline was 9.0 based on local environmental regulations, and the minimum octane content was 87. To upgrade the gasoline to the required RVP and octane, blending was required.
The Amolyntos arrived at Constanza, Romania on April 14, 1990. Its prior cargo had been a shipment of coal to Taranto, Italy. The nature of the prior cargo is an important factor because of the plaintiff's contention that the coal contributed to the darkened color of the gasoline when it arrived in New York.
The Master of the vessel signed the Bill of Lading acknowledging receipt for 549,685 barrels of unleaded gasoline. In addition to various documents, the Master signed for and received six sealed samples of the cargo for delivery to the consignee and the surveyors at the port of destination. The six sealed samples were comprised of two average samples from the Romanian shore tanks, two average samples from the pipeline from the shore tanks to the ship's connection, and two average samples from the vessel's tanks after loading. Texport paid Bulk Oil for the cargo, and the Bill of Lading was endorsed to it.
The Amolyntos departed from Constanza on April 20, 1990 with New York as its destination. The ocean voyage was uneventful and the ship arrived in the Port of New York on May 10, 1990. Shortly after the ship's arrival and clearance by customs officials, surveyors representing various interests boarded the Amolyntos to gauge and sample the cargo, including Caleb Brett U.S.A. Inc., an independent public survey company ("Caleb Brett"), the seller Bulk Oil and the vessel.
On May 10, 1990, the attending surveyors conducted cargo gauging and sampling activities. During this operation, samples of all nine cargo tanks and the port duct keel were obtained and placed in glass bottles. In addition, the ship delivered all the Constanza samples to Caleb Brett.
By reason of the fact that several tank samples were darker than those obtained from other cargo tanks, Texport ordered Caleb Brett to re-sample three tanks, namely, tanks five, eight and nine. On May 10, 1990 at 6:00 p.m. and on May 11, 1990 at 6:30 a.m., Caleb Brett "pulled" two sets of samples from cargo tanks five, eight and nine for the purpose of re-analyzing these tanks, which contained gasoline having a darker color than the other six cargo tanks.
On May 10, 1990 or May 11, 1990, Texport notified the cargo insurers in London regarding a potential cargo contamination on the Amolyntos. Texport ordered the vessel not to start unloading the ship until the insurance representative reached the Amolyntos. On May 12, 1990, John ...