The opinion of the court was delivered by: MOTLEY
1. Interpool Limited ("Interpool") is a Barbados Corporation engaged in the leasing of marine cargo containers to the shipping industry. Trial Transcript ("Tr.") at 8.
2. Interpool was originally a Bahamian corporation, but in May of 1990, it became qualified to do business under the laws of Barbados and continued its corporate existence as a Barbadan corporation. It discontinued its corporate existence as a Bahamian corporation at the same time. Tr. at 181, Pre-Trial Order, Undisputed Facts, # 4.
3. Bernuth Agencies, Inc. ("Bernuth") is a Miami-based shipping agency representing Bernuth Lines, Ltd., which operates a fleet of cargo ships servicing various islands located in the Caribbean. Tr. at 427.
4. Effective May 28, 1985, the parties entered into a Membership and Equipment Leasing Agreement (the "Agreement"), which set forth general terms and conditions regarding the leasing of steel containers from Interpool to Bernuth. Tr. at 189-95.
5. Under the terms of the Agreement, when Bernuth found that containers it was leasing from Interpool were unusable or otherwise unsatisfactory, it could "off-hire" them at Interpool's depot, at which time rental charges would cease. Plaintiff's Exhibit 1, art. 9.
6. The Agreement also required that Bernuth pay for any damage done to the containers while they were in its possession. However, wear and tear, as determined by guidelines set by the International Institute of Container Lessors (the "IICL"), was the responsibility of Interpool. Plaintiff's Exhibit 1, art. 9
7. Thus, under the terms of the Agreement, when Bernuth off-hired containers at Interpool's depot, Interpool's depot inspector would inspect them and determine as for each container the amount of damage it had suffered and send an invoice to Bernuth. Bernuth could then pay the invoice or, if it felt that the container was not damaged but had only in fact endured normal wear and tear, it could enter into dispute resolution procedures. Tr. at 18-19.
8. The Agreement also contained a no-oral-modification clause, requiring that any changes to it be in writing and signed by the party to be bound thereby. Plaintiff's Exhibit 1, art. 17.
9. Subsequent to the execution of the Agreement, the parties entered into a Container Lease Agreement on or about July 16, 1986 (the "1986 Lease"). Tr. at 10-12.
10. The 1986 Lease was an addendum to the Agreement and it set forth specific details such as per diem rental rates, procedures for dealing with the loss or total damage of equipment, and the permissible uses of the containers. Tr. at 10-12.
11. The 1986 Lease was extended in an Addendum dated April 22, 1988, for one year from that date. Plaintiff's Exhibit 19.
13. The Lease and Addendum expired in 1989, and a new lease was arranged for the 344 containers in 1989. Tr. at 11-14. This lease, which was dated November 1, 1990 (the "1990 Lease"), was signed by Bernuth on January 9, 1991 and by Interpool on February 7, 1991. Plaintiff's Exhibit 3; Tr. at 181.
14. The 1990 Lease is also described as an addendum to the Agreement and provided that in the event of a conflict between it and the Agreement, its terms would control. Plaintiff's Exhibit 3.
15. The 1990 Lease sets the replacement values of the twenty and forty foot containers as $ 3200 and $ 5400, respectively. However, the values were to depreciate by a rate of 5% a year from the date of manufacture to a minimum of 40% of the ...