United States District Court, W.D. Washington, Tacoma
B. Leighton, United States District Judge.
MATTER is before the Court on the parties' cross motions
for summary judgment. [Dkt. #s 70 & 75]. This case arises
out of the use, maintenance and repair of a dock (Terminal 2,
Berth 2, or T2B2) on the Columbia River. The Port of
Vancouver built T2B2 in 2000, and since 2004 has leased it to
Defendant Metro Metals to export scrap metal. The dock is
designed to support large shoreside cranes and has a concrete
surface able to support a 1000 pound per square inch live
load, rather than the more typical 750 psi. This case arises
from damage to that concrete surface, and the issue is which
party is responsible for the cost of its repair.
began exporting heavy scrap metal from the dock in 2007. By
November 2009, both parties wanted Metro to export additional
scrap from the wharf and entered into a “Shred Berm
Expansion and Repair Agreement” designed to facilitate
such an increase. The Agreement provided for a re-arrangement
and enlargement of the upland area used to stage scrap for
loading onto ships from the dock (revisions “inside the
berm”); provided for a minimum annual export amount,
and a revised wharfage fee calculation (the amount paid by
Metro to the Port for the use of T2B2); and articulated the
parties' respective financial, operation and maintenance
responsibilities. Of specific import here is the list of the
tenant's repair obligations:
- Metro Metals responsibilities:
- Repair damage to the terminal areas used for scrap
steel operations. The Port will determine the extent of
repair based on initial condition of damaged
- Provide asphalt as required, initially and In the
future, to protect scrap steel operational areas.
- Repair Port areas damaged by tracked equipment. The
Port requires that tracked equipment be moved into the
Terminal 2 storage area by truck - not by
driving it across the terminal area.
- Operate and maintain storm water treatment facility
for scrap steel operational area.
- Pay for terminal modifications as a result of berm
extension. A list of these modifications Is attached as
Exhibit 2 to this agreement.
- Agree to follow BMPs as may be amended by the
parties from time to time.
[Stadler Dec Ex 4; Dkt. # 77]. The Agreement included two
exhibits, one of which spelled out in more detail the amounts
the parties were going to spend to implement the new
arrangement. It included a requirement that Metro repair the
existing concrete surfaces damaged by its shredding
Repair existing concrete and asphalt
surfaces damaged by shred activities
$90, 000 est.