United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Honorable Richard A. Jones United States District Judge.
matter is before the Court on the motion for summary judgment
filed by Plaintiff Heko Services, Inc. (“Heko”).
Dkt. # 15. For the reasons below, the motion is
GRANTED in part and DENIED in
case involves a time charter between Heko and Defendant
ChemTrack Alaska, Inc. (“ChemTrack”). Under the
terms of the time charter, Heko agreed to prove a tug and
barge for ChemTrack to ship up to 7, 400 tons of contaminated
soil from Naknek, Alaska to Elliot Bay in Seattle,
Washington. Dkt. # 16-1 at 12.
negotiations had been ongoing for some time prior, the
parties reduced the time charter to writing by May 2018.
Id. The time charter included the following relevant
provisions concerning hire, charges, and payment:
Charterer shall pay Owner the “LUMP SUM HIRE” [of
$925, 000], which shall be fully and irrevocably earned upon
commencement of services, even if the Tug, Tow, and/or cargo
is lost and/or the voyage is delayed, frustrated, or
Owner shall invoice Charterer and payment for the contract
“LUMP SUM HIRE” shall be due as follows:
• 20% upon contract execution
• 40% upon first arrival at the Starting Port
• 40% upon first arrival to Offloading Port
Id. at 14. The time charter also outlined several
inclusions and exclusions. Under the time charter, ChemTrack
would receive 48 consecutive hours from the barge's
arrival in Naknek to load the soil before a demurrage rate of
$750 per hour applied and 72 consecutive hours from the
barge's arrival in Elliot Bay to offload the soil and
return the barge before a demurrage rate of $200 per hour
applied. Id. at 13. Fuel and lubricating oils were
deemed part of the lump sum hire amount, subject to increases
to a baseline fuel cost per gallon of $1.80. Id. at
14. In addition, ChemTrack was solely responsible for loading
and adequately packaging the cargo “to withstand the
hazards of cargo handling and transportation by open decked
barge.” Id. at 13. If ChemTrack used
Heko's crewmembers to assist with cargo handling, they
would be deemed borrowed servants of ChemTrack, with
ChemTrack solely responsible for all loss, damage, or
liability involving the cargo. Id. at 14. Lastly,
Heko agreed to be responsible for all loss, damage, expense,
liability or claims applicable to the barge, even if
resulting from the negligence of ChemTrack, and ChemTrack
agreed to the same with respect to its cargo. Id. at
15. The lone exception to this allocation of liability was if
the Vessel was damaged during ChemTrack's use of the
barge to load, stow, trim, secure, or discharge its cargo.
undisputed that the transit did not go as planned. For one,
there were issues loading the barge with cargo and equipment.
In addition to ChemTrack's soil, the barge contained two
cranes belonging to Heko as well as cargo belonging to other
third parties. Dkt. # 16-3 at 5; Dkt # 18, ¶ 19. After
ChemTrack's loaded its soil onto the barge and covered it
with a liner, some crane parts were loaded on top. Dkt. #
19-1 at 32-33. Several days after the barge departed, in the
vicinity of Unimak Pass, Alaska, the tug and tow encountered
severe weather. For reasons that are disputed, the cargo
became wet with seawater and tons of soil were lost
overboard. Dkt. # 16-4 at 4; Dkt. # 19-1 at 122-127. The tug
master diverted the tug and barge to the Port of Sand Point
in Alaska, where Heko and ChemTrack reloaded the barge,
before it proceeded to Elliot's Bay. Dkt. # 16-4 at 6-7;
Dkt. # 19-1 at 48-51, 122-127.
October 30, 2018, Heko brought this action alleging that
ChemTrack breached several sections of the time charter. Dkt.
# 1. On November 21, 2018, ChemTrack answered the complaint
and later counterclaimed for damages related to Heko's
purported breaches of the time charter. Dkt. # 9, 13. On
September 17, 2019, Heko filed a motion for summary judgment.
Dkt. # 15. On October, ...