Opinion
No. 80 Civ. 5483 (RO).
July 10, 1984.
Bingham, Englar, Jones Houston, New York City, for plaintiff; John T. Kochendorfer, New York City, of counsel.
Haight, Gardner, Poor Havens, New York City, for defendants; Donald Denning, New York City, of counsel.
OPINION AND ORDER
On the stipulated facts and an assessment of the testimony in the depositions, particularly that of Fred Oaks, and a study of the various product tests annexed to the Chodorowski deposition, I conclude that Oaks blundered by permitting further loading after the results of the 4 foot test were known, whether or not that test revealed a third and more serious cause of contamination, namely "lead" from gasoline in an adjacent tank. The product was already out of "spec" on the 2 foot test for color, and while further limited loading is a recognized practice to see if there is a dilution of what may be a small amount of left-over contaminant from a prior use of the tanks, here the second test at 4 feet, instead of showing a dilution of contaminant, showed that things got worse, i.e. in addition to the color, the "non-aromatics" weight percentage was out of "spec". At this point I conclude that Oaks, CORCO'S representative in charge of the loading, and on notice of the worsening of the condition of the product, is to be faulted for not terminating the loading even though it only appeared from later tests that lead was being added to the two which were causing the product to be out of "spec" on the 4 foot test.
There was no test for "lead" at either the 2 or 4 foot levels.
Given the foregoing, plaintiff's damages are limited to the loss caused by the contamination of the 1926 bbls. (that loaded to the 4 foot level) — not the total input of 13,468.28 bbls. — or $38,610.10.
Submit judgment at 9% interest for the foregoing together with costs and disbursements.