Home/E.D. New York/Arthur Tickle Engineering Works, Inc. v. Oil Tank Cleaning Corp.

Arthur Tickle Engineering Works, Inc. v. Oil Tank Cleaning Corp.

214 F. Supp. 216, 1963 U.S. Dist. LEXIS 10312
CourtDistrict Court, E.D. New York
DecidedFebruary 6, 1963
DocketNos. 60-A-355, 60-A-844
StatusPublished

This text of 214 F. Supp. 216 (Arthur Tickle Engineering Works, Inc. v. Oil Tank Cleaning Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arthur Tickle Engineering Works, Inc. v. Oil Tank Cleaning Corp., 214 F. Supp. 216, 1963 U.S. Dist. LEXIS 10312 (E.D.N.Y. 1963).

Opinion

ZAVATT, Chief Judge.

The above entitled actions were consolidated for trial and for all other purposes by the pre-trial order of Dooling, J., dated and filed May 18, 1962. Libel-lant in 60-A-355, hereinafter referred to as Tickle, sues to be indemnified in the sum of $7,144, which it claims is the amount of damages it has sustained by reason of the negligence of the respondent, hereinafter referred to as Oil Tank, in its performance of a contract between the parties pursuant to which Oil Tank cleaned and gas freed the No. 3 port deep tank and double-bottom tank of the U.S.M.S. General Buckner, hereinafter referred to as the ship. Oil Tank sues Tickle in 60-A-844 to recover the sum of $1100, alleged to be the agreed value of these services, and the further sum of $2175, alleged to be the reasonable value of additional services rendered in cleaning up certain oil spillage on the ship at the specific request of Tickle. The parties agree only that the value of Oil Tank’s cleaning and degassing services is $1100. They are not in agreement as to the amount of Tickle’s alleged damages or the value of Oil Tank’s additional clean up services. As to the latter amount the parties were relieved of their stipulation at pre-trial that the fair value of these services is $2175. Only the questions of liability were tried.

Tickle is in the ship repair business. It makes repairs to ships of the United States under a master contract with the Department of Defense, United States Military Sea Transportation Service, Atlantic Area, Clause 10(b) of which provides that:

“The Contractor shall be responsible for and make good at its own cost and expense any and all loss of or damage of whatsoever nature to the vessel (or part thereof), its equipment, movable stores and cargo, and Government-owned materials and equipment for the repair, completion, alteration of or addition to the vessel in possession of the Contractor, whether at the Plant or elsewhere, arising or growing out of the [218]*218performance of the work, except where the Contractor can affirmatively show that such loss or damage was due to causes beyond the Contractor’s control, was proximately caused by the fault or negligence of agents or employees of the Government, or which loss or damage the Contractor by exercise of reasonable care was unable to prevent, * * -*»

Tickle received a job order under this master contract to make “Voyage Repairs” to the ship including Item No. 3, “Repairs to Fuel Oil Heating Coil.” This item required Tickle to clean and gas free the No. 3 port double-bottom tank “in accordance with Standard Item #13, issued 1 March 1958,” before making the specified repairs. After having made those repairs, Tickle was required to “close up tank using all new gasketing material and any required new bolting material.” Standard Item #13, entitled “Cleaning and Gas Freeing Spaces,” required Tickle to deliver a “gas free certificate signed by a certified chemist” to “the Assistant Port Engineer” of Military Sea Transportation Service, Atlantic Area. After Tickle performed all of its repairs to this tank it was required that the tank “shall be closed in good order, complete with new jointing and required new bolting material, in the presence of the Assistant Port Engineer and the Chief Engineer of the ship.”

Tickle subcontracted the work of cleaning and gas freeing the #3 port double-bottom tank to Oil Tank, first by a telephone call to the President of Oil Tank asking for a bid on the job of cleaning and gas freeing this tank to the satisfaction of a certified chemist, Military Sea Transportation Service inspectors and Tickle inspectors and accepting Oil Tank’s bid either in ■ that or a subsequent telephone call.' The trial established that the certified chemist was to be one furnished and paid for by Tickle, and the Court so finds.

Following the final acceptance of Oil Tank’s bid, Tickle mailed a “Purchase Order” to Oil Tank, dated October 26, 1959. The “Terms and Conditions” of the purchase order indicate that it is designed for use when Tickle purchases merchandise from others, for they are stated in terms of “The Vendor,” “the goods listed on this order,” “contents must be marked on all packages,” and “any suit for infringement of patent brought against” Tickle “by reason of the use of such goods.” One of the terms and conditions is a save harmless provision as follows:

“In consideration of this order the Vendor agrees v to save us harmless from all claims for personal injuries, including death and any injuries to property, while engaged in carrying out the work called for herein whether or not such injuries are attributable to our negligence. It is expressly agreed that workmen engaged upon the said work shall at all times be-considered the employees of the Vendor.”

Tickle does not contend that this condition is valid or applicable insofar as it purports to hold Oil Tank liable for Tickle’s negligence.

Oil Tank cleaned out and gas freed the tank on October 27, 1959. There is no testimony as to whether Oil Tank received the purchase order before or after it performed its work. However, there is testimony that Oil Tank has performed this kind of work for Tickle over a number of years prior to October 1959; that similar purchase orders containing the same terms and conditions have always followed Tickle’s acceptance of an Oil Tank bid; that Oil Tank, therefore, was aware of this practice and of the said terms and conditions. I find that these terms and conditions, are a part of the contract between the-parties. It remains to be determined what effect, if any, this save harmless clause has in this case.

The relative locations of port holds No. 2, 3 and 4, the port No. 3 deep tank and the port No. 3 double-bottom tank are as. shown on the diagram (Oil Tank’s Exhibit A) annexed as Appendix 1. AI-

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Cite This Page — Counsel Stack

Bluebook (online)
214 F. Supp. 216, 1963 U.S. Dist. LEXIS 10312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthur-tickle-engineering-works-inc-v-oil-tank-cleaning-corp-nyed-1963.