CITGO Asphalt Refining Co. v. Frescati Shipping Co. , 206 L. Ed. 2d 391 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITGO ASPHALT REFINING CO. ET AL. v. FRESCATI
SHIPPING CO., LTD., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 18–565. Argued November 5, 2019—Decided March 30, 2020
Petitioners (collectively CARCO) sub-chartered the oil tanker M/T Athos
I from tanker operator Star Tankers, which had chartered the tanker
from respondent Frescati Shipping Company. In the final stretch of
the tanker’s journey from Venezuela to New Jersey, an abandoned ship
anchor punctured the tanker’s hull, causing 264,000 gallons of heavy
crude oil to spill into the Delaware River. The Oil Pollution Act of
1990, 33 U.S. C. §2702(a), required Frescati, the vessel’s owner, to
cover the cleanup costs in the first instance. Pursuant to the statute,
Frescati’s liability was limited to $45 million, and the Oil Spill Liabil-
ity Trust Fund, operated by the Federal Government (also a respond-
ent here), reimbursed Frescati for an additional $88 million in cleanup
costs.
Frescati and the United States then sued CARCO to recover their
respective portions of the cleanup costs. Both alleged that CARCO was
ultimately at fault for the oil spill because CARCO had breached a con-
tractual “safe-berth clause” in the subcharter agreement (“charter
party”) between CARCO and Star Tankers. According to Frescati and
the United States, that clause obligated CARCO to select a “safe” berth
that would allow the vessel to come and go “always safely afloat,” and
that obligation amounted to a warranty regarding the safety of the se-
lected berth. After concluding that Frescati was an implied third-
party beneficiary of the safe-berth clause, the Third Circuit held that
the clause embodied an express warranty of safety made without re-
gard to the charterer’s diligence in selecting the berth.
Held: The plain language of the parties’ safe-berth clause establishes a
warranty of safety. Pp. 5–16.
(a) The Court’s analysis begins and ends with the text of the safe-
2 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Syllabus
berth clause. As CARCO acknowledges, the clause imposes on the
charterer a duty to select a safe berth. And given the unqualified lan-
guage of the clause, the charterer’s duty is absolute: The charterer
must designate a berth that is “safe” and that allows the vessel to come
and go “always” safely afloat. That absolute duty amounts to a war-
ranty of safety.
That the safe-berth clause does not expressly invoke the term “war-
ranty” does not alter the charterer’s duty under the safe-berth clause.
It is well settled that statements of material fact in a charter party are
warranties, regardless of their label. See, e.g., Davison v. Von Lingen,
113 U.S. 40, 49–50. Here, it is plain on the face of the contract that
the safe-berth clause sets forth a statement of “material” fact regard-
ing the condition of the berth selected by the charterer. The charterer’s
assurance of a safe berth is the entire root of the safe-berth clause, and
crucially, it is not subject to qualifications or conditions.
CARCO counters that the safe-berth clause merely imposes a duty
of due diligence in selecting a safe berth. But as a general rule, tort
concepts like due diligence have no place in contract analysis. Under
basic precepts of contract law, an obligor is strictly liable for a breach
of contract, without regard to fault or diligence. While parties are free
to contract for limitations on liability, the parties here contracted for
no such thing: There is no language in the safe-berth clause even hint-
ing at due diligence. That omission is particularly notable in context,
as the parties expressly contracted for due-diligence limitations on li-
ability elsewhere in the charter party.
CARCO’s arguments about other clauses in the charter party do not
counsel in favor of a different result. The charter party’s “general ex-
ceptions clause,” which limits the charterer’s liability for losses due to
“perils of the seas,” does not apply where, as here, another clause ex-
pressly provides for liability stemming from the designation of an un-
safe berth. Nor does a clause requiring Star Tankers to obtain oil-
pollution insurance relieve CARCO of liability under the safe-berth
clause. The pollution-insurance clause covers risks beyond those re-
sulting from the selection of an unsafe berth.
CARCO’s alternative interpretation of the safe-berth clause, as
simply requiring the charterer to pay any expenses resulting from the
vessel master’s refusal to enter an unsafe berth, is inapposite. Assum-
ing that the charterer is liable for expenses when the vessel master
justifiably refuses to enter an unsafe berth, that does not abate the
scope of the charterer’s liability when a vessel in fact enters an unsafe
berth.
The dissent argues that reading the safe-berth clause to bind the
charterer to a warranty of safety would necessarily imply that the safe-
berth clause creates contradictory warranties of safety, one on the
Cite as: 589 U. S. ____ (2020) 3
Syllabus
charterer and one on the vessel master. Because that conflict cannot
be, the dissent continues, the safe-berth clause must not bind the char-
terer to a warranty of safety. The dissent’s conclusion does not follow
because the alleged conflict does not exist. Under the safe-berth
clause, the charterer has a duty to select a safe berth, while the vessel
master has a duty to load and discharge at the chosen safe berth.
There is no tension between those two duties. Pp. 5–12.
(b) CARCO’s arguments that other authorities have understood
safe-berth clauses differently lack foothold in the text of the safe-berth
clause and are otherwise unconvincing. For instance, CARCO relies
on a leading admiralty treatise that urges that safe-berth clauses
ought not be interpreted as establishing a warranty of safety because
charterers are not always in the best position to know the dangers at-
tendant to a given berth. But whatever that treatise sought to prevail
upon courts to adopt as a prescriptive matter does not alter the plain
meaning of the safe-berth clause here.
Also unavailing is CARCO’s contention that Atkins v. Disintegrating
Co., 18 Wall. 272, determined that safe-berth clauses do not embody a
warranty of safety. CARCO relies on a passing statement in Atkins
that did not bear on this Court’s ultimate holding that the vessel mas-
ter in that case had waived the protection of the safe-berth clause.
Finally, CARCO points out that the Fifth Circuit has held that a
similarly unqualified safe-berth clause merely imposed a duty of due
diligence. Orduna S. A. v. Zen-Noh Grain Corp., 913 F.2d 1149. But
the Fifth Circuit did not purport to interpret the language of the safe-
berth clause at issue in that case and instead relied principally on tort
law and policy considerations. The Second Circuit’s long line of deci-
sions interpreting the language of unqualified safe-berth clauses as
embodying an express warranty of safety is more consistent with tra-
ditional contract analysis. See, e.g., Paragon Oil Co. v. Republic Tank-
ers, S. A., 310 F.2d 169. Pp. 12–16.
886 F.3d 291, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, KAGAN, GORSUCH, and KAVANAUGH, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–565
_________________
CITGO ASPHALT REFINING COMPANY, ET AL.,
PETITIONERS v. FRESCATI SHIPPING
COMPANY, LTD., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[March 30, 2020]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In 2004, the M/T Athos I, a 748-foot oil tanker, allided1
with a nine-ton anchor abandoned on the bed of the Dela-
ware River. The anchor punctured the tanker’s hull, caus-
ing 264,000 gallons of heavy crude oil to spill into the river.
As required by federal statute, respondents Frescati Ship-
ping Company—the Athos I’s owner—and the United
States covered the costs of cleanup. They then sought to
reclaim those costs from petitioners CITGO Asphalt Refin-
ing Company and others (collectively CARCO), which had
chartered the Athos I for the voyage that occasioned the oil
spill. According to Frescati and the United States, CARCO
had breached a contractual “safe-berth clause” obligating
CARCO to select a “safe” berth that would allow the Athos I
to come and go “always safely afloat.”
The question before us is whether the safe-berth clause is
a warranty of safety, imposing liability for an unsafe berth
——————
1 An allision is “[t]he contact of a vessel with a stationary object such
as an anchored vessel or a pier.” Black’s Law Dictionary 94 (11th ed.
2019).
2 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
regardless of CARCO’s diligence in selecting the berth. We
hold that it is.
I
A
During the relevant period, the Athos I was the subject of
a series of contracts involving three parties: Frescati, Star
Tankers, and CARCO. Frescati owned the Athos I. Star
Tankers, an operator of tanker vessels, contracted with
Frescati to charter the Athos I for a period of time. CARCO
then contracted with Star Tankers to subcharter the Athos I
for the inauspicious voyage resulting in the oil spill.
Pertinent here is the subcharter agreement between Star
Tankers and CARCO. In admiralty, such contracts to char-
ter a vessel are termed “charter parties.” Like many mod-
ern charter parties, the agreement between Star Tankers
and CARCO was based on a standard industry form con-
tract. It drew essentially verbatim from a widely used tem-
plate known as the ASBATANKVOY form, named after the
Association of Ship Brokers & Agents (USA) Inc. (ASBA)
trade association that publishes it.
At the core of the parties’ dispute is a clause in the char-
ter party requiring the charterer, CARCO, to designate a
safe berth at which the vessel may load and discharge
cargo. This provision, a standard feature of many charter
parties, is customarily known as a safe-berth clause. The
safe-berth clause here provides, as relevant, that “[t]he ves-
sel shall load and discharge at any safe place or wharf, . . .
which shall be designated and procured by the Charterer,
provided the Vessel can proceed thereto, lie at, and depart
therefrom always safely afloat, any lighterage being at the
expense, risk and peril of the Charterer.” Addendum to
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
Brief for Petitioners 8a.2 The charter party separately re-
quires CARCO to direct the Athos I to a “safe por[t ]” along
the Atlantic seaboard of the United States. Id., at 24a.
Pursuant to the charter party, CARCO designated as the
berth of discharge its asphalt refinery in Paulsboro, New
Jersey, on the shore of the Delaware River. In November
2004, the Athos I set out on a 1,900-mile journey from
Puerto Miranda, Venezuela, to Paulsboro, New Jersey, car-
rying a load of heavy crude oil. The vessel was in the final
900-foot stretch of its journey when an abandoned ship an-
chor in the Delaware River pierced two holes in the vessel’s
hull. Much of the Athos I’s freight drained into the river.
B
After the Exxon-Valdez oil spill in 1989, Congress passed
the Oil Pollution Act of 1990 (OPA), 104 Stat. 484, 33
U.S. C. §2701 et seq., to promote the prompt cleanup of oil
spills. To that end, OPA deems certain entities responsible
for the costs of oil-spill cleanups, regardless of fault.
§2702(a). It then limits the liability of such “responsible
part[ies]” if they (among other things) timely assist with
cleanup efforts. §2704. Responsible parties that comply
with the statutory conditions receive a reimbursement from
the Oil Spill Liability Trust Fund (Fund), operated by the
Federal Government, for any cleanup costs exceeding a
statutory limit. §2708; see also §2704.
Although a statutorily responsible party must pay
cleanup costs without regard to fault, it may pursue legal
——————
2 The parties agree that the safe-berth clause also encompasses what
is often referred to as a “safe-port clause.” The safe-port clause here pro-
vides that “[t]he vessel . . . shall, with all convenient dispatch, proceed as
ordered to Loading Port(s) named . . . , or so near thereunto as she may
safely get (always afloat), . . . and being so loaded shall forthwith pro-
ceed, . . . direct to the Discharging Port[s], or so near thereunto as she
may safely get (always afloat), and deliver said cargo.” Addendum to
Brief for Petitioners 4a. The parties do not dispute that the two clauses
should be read in conjunction.
4 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
claims against any entity allegedly at fault for an oil spill.
§§2710, 2751(e). So may the Fund: By reimbursing a re-
sponsible party, the Fund becomes subrogated to the re-
sponsible party’s rights (up to the amount reimbursed to
the responsible party) against any third party allegedly at
fault for the incident. §§2712(f ), 2715(a).
As owner of the Athos I, Frescati was deemed a “respon-
sible party” for the oil spill under OPA. Frescati worked
with the U. S. Coast Guard in cleanup efforts and covered
the costs of the cleanup. As a result, Frescati’s liability was
statutorily limited to $45 million, and the Fund reimbursed
Frescati for an additional $88 million that Frescati paid in
cleanup costs.
C
Following the cleanup, Frescati and the United States
each sought recovery against CARCO: Frescati sought to
recover the cleanup costs not reimbursed by the Fund,
while the United States sought to recover the amount dis-
bursed by the Fund. As relevant here, both Frescati and
the United States claimed that CARCO had breached the
safe-berth clause by failing to designate a safe berth, and
thus was at fault for the spill.
After a complicated series of proceedings—including a 41-
day trial, a subsequent 31-day evidentiary hearing, and two
appeals—the Court of Appeals for the Third Circuit found
for Frescati and the United States. The court first con-
cluded that Frescati was an implied third-party beneficiary
of the safe-berth clause in the charter party between
CARCO and Star Tankers, thereby allowing the breach-of-
contract claims by Frescati and the United States to pro-
ceed against CARCO. In re Frescati Shipping Co., 718 F.3d
184, 200 (2013). The court then held that the safe-berth
clause embodied an express warranty of safety “made with-
out regard to the amount of diligence taken by the char-
terer,” and that CARCO was liable to Frescati and the
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
United States for breaching that warranty. Id., at 203;
In re Frescati Shipping Co., 886 F.3d 291, 300, 315 (2018)
(case below).
We granted certiorari, 587 U. S. ___ (2019), to resolve
whether the safe-berth clause at issue here merely imposes
a duty of diligence, as the Fifth Circuit has held in a similar
case, or establishes a warranty of safety, as the Second Cir-
cuit has held in other analogous cases. Compare Orduna
S. A. v. Zen-Noh Grain Corp., 913 F.2d 1149 (CA5 1990),
with, e.g., Paragon Oil Co. v. Republic Tankers, S. A., 310
F.2d 169 (CA2 1962). The former interpretation allows a
charterer to avoid liability by exercising due diligence in se-
lecting a berth; the latter imposes liability for an unsafe
berth without regard to the care taken by the charterer. Be-
cause we find it plain from the language of the safe-berth
clause that CARCO warranted the safety of the berth it des-
ignated, we affirm the judgment of the Third Circuit.
II
Maritime contracts “must be construed like any other
contracts: by their terms and consistent with the intent of
the parties.” Norfolk Southern R. Co. v. James N. Kirby,
Pty Ltd., 543 U.S. 14, 31 (2004); see also 2 T. Schoenbaum,
Admiralty & Maritime Law §11:2, p. 7 (6th ed. 2018)
(“[F]ederal maritime law includes general principles of con-
tract law”). “ ‘Where the words of a contract in writing are
clear and unambiguous, its meaning is to be ascertained in
accordance with its plainly expressed intent.’ ” M&G Poly-
mers USA, LLC v. Tackett, 574 U.S. 427, 435 (2015) (quot-
ing 11 R. Lord, Williston on Contracts §30:6, p. 108 (4th ed.
2012) (Williston)). In such circumstances, the parties’ in-
tent “can be determined from the face of the agreement” and
“the language that they used to memorialize [that] agree-
ment.” 11 Williston §30:6, at 97–98, 112–113. But “[w]hen
a written contract is ambiguous, its meaning is a question
6 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
of fact, requiring a determination of the intent of [the] par-
ties in entering the contract”; that may involve examining
“relevant extrinsic evidence of the parties’ intent and the
meaning of the words that they used.” Id., §30:7, at 116–
119, 124 (footnote omitted).
A
Our analysis starts and ends with the language of the
safe-berth clause. That clause provides, as relevant, that
the charterer “shall . . . designat[e] and procur[e]” a “safe
place or wharf,” “provided [that] the Vessel can proceed
thereto, lie at, and depart therefrom always safely afloat.”
Addendum to Brief for Petitioners 8a. As even CARCO
acknowledges, the clause plainly imposes on the charterer
at least some “duty to select a ‘safe’ berth.” Brief for Peti-
tioners 21. Given the unqualified language of the safe-
berth clause, it is similarly plain that this acknowledged
duty is absolute. The clause requires the charterer to des-
ignate a “safe” berth: That means a berth “free from harm
or risk.” Webster’s Collegiate Dictionary 1030 (10th ed.
1994); see also New Oxford American Dictionary 1500 (E.
Jewell & F. Abate eds. 2001) (“safe” means “protected from
or not exposed to danger or risk”). And the berth must allow
the vessel to come and go “always” safely afloat: That means
afloat “at all times” and “in any event.” Webster’s Colle-
giate Dictionary, at 35; see also New Oxford American Dic-
tionary, at 47 (“always” means “at all times; on all occa-
sions”). Selecting a berth that does not satisfy those
conditions constitutes a breach. The safe-berth clause, in
other words, binds the charterer to a warranty of safety.3
——————
3 The central pillar of the dissent is that the safe-berth clause merely
bestows upon the charterer “the right to ‘designat[e]’ the place of dis-
charge,” and thus apparently creates no duty to select a safe berth (much
less a warranty of safety). Post, at 2 (opinion of THOMAS, J.) (quoting
Addendum to Brief for Petitioners 8a; emphasis added); see also post, at
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
No matter that the safe-berth clause does not expressly
invoke the term “warranty.” It is well settled as a matter
of maritime contracts that “[s]tatements of fact contained
in a charter party agreement relating to some material mat-
ter are called warranties,” regardless of the label ascribed
in the charter party. 22 Williston §58.11, at 40–41 (2017);
see also Davison v. Von Lingen, 113 U.S. 40, 49–50 (1885)
(a stipulation going to “substantive” and “material” parts of
a charter party forms “a warranty”); Behn v. Burness, 3 B.
& S. 751, 122 Eng. Rep. 281 (K. B. 1863) (“With respect to
statements in a [charter party] descriptive of . . . some ma-
terial incident . . . , if the descriptive statement was in-
tended to be a substantive part of the [charter party], it
is to be regarded as a warranty”). What matters, then, is
that the safe-berth clause contains a statement of material
fact regarding the condition of the berth selected by the
charterer.
Here, the safety of the selected berth is the entire root of
the safe-berth clause: It is the very reason for the clause’s
inclusion in the charter party. And crucially, the char-
terer’s assurance of safety is not subject to qualifications or
conditions. Under any conception of materiality and any
view of the parties’ intent, the charterer’s assurance surely
counts as material. That leaves no doubt that the safe-
——————
3 (“the charterer has a right of selection”). That sidesteps the safe-berth
clause’s plain terms, which prescribe that the charterer “shall . . . desig-
nat[e] and procur[e]” a “safe place or wharf.” Addendum to Brief for Pe-
titioners 8a (emphasis added). As we have said before, “the word ‘shall’
usually connotes a requirement.” Kingdomware Technologies, Inc. v.
United States, 579 U. S. ___, ___ (2016) (slip op., at 9); see also, e.g., Lex-
econ Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998). The text thus forecloses the dissent’s permissive view that the
charterer merely has an elective “right” to select a berth of discharge but
no duty to do so. And even CARCO disclaims that atextual position. See
Brief for Petitioners 21.
8 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
berth clause establishes a warranty of safety, on equal foot-
ing with any other provision of the charter party that in-
vokes express warranty language.4
CARCO resists this plain reading of the safe-berth
clause, arguing instead that the clause contains an implicit
limitation: The clause does not impose “strict liability,” says
CARCO, or “liability without regard to fault.” Brief for Pe-
titioners 23, 25. In effect, CARCO interprets the safe-berth
clause as imposing a mere duty of due diligence in the se-
lection of the berth. See Tr. of Oral Arg. 19–20 (arguing
that “[CARCO] did [its] due diligence” in “selecting the port
or the berth”); id., at 28 (suggesting that the safe-berth
clause is constrained “as a matter of due diligence in tort
concepts”); Reply Brief 5, n. 3 (asserting that a charterer’s
liability under the safe-berth clause “should be addressed
through . . . sources of la[w] such as tort law”). But as a
general rule, due diligence and fault-based concepts of tort
liability have no place in the contract analysis required
here. Under elemental precepts of contract law, an obligor
is “liable in damages for breach of contract even if he is
without fault.” Restatement (Second) of Contracts, p. 309
(1979) (Restatement (Second)). To put that default contract-
law principle in tort-law terms, “Contract liability is
——————
4 Because the materiality of the charterer’s assurance of safety is plain
on the face of the charter party, the specific materiality issue here raises
no question of fact for a jury to resolve. That is not to say that the mate-
riality of a statement in a charter party is always a question of law. Nor
does the materiality analysis here bear on wholly different materiality
inquiries. For not all questions of materiality are alike: Sometimes ma-
teriality is a question of law. See, e.g., 30 Williston §75:30, at 108
(whether an alteration of a contract is material). Other times, it involves
factual determinations uniquely suited for a jury. See, e.g., TSC Indus-
tries, Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976) (whether a com-
pany’s misstatements to the public are material for securities-fraud pur-
poses). The dissent’s insistence that materiality is a question of fact “ ‘in
other contexts’ ”—such as securities fraud—thus is inapposite. Post, at
8 (quoting United States v. Gaudin, 515 U.S. 506, 512 (1995)).
Cite as: 589 U. S. ____ (2020) 9
Opinion of the Court
strict liability.” Ibid. (emphasis added); see also 23 Willis-
ton §63:8, at 499 (2018) (“Liability for a breach of contract
is, prima facie, strict liability”). What CARCO thus protests
is the straightforward application of contract liability to a
breach of contract.
Although contract law generally does not, by its own
force, limit liability based on tort concepts of fault, par-
ties are of course free to contract for such limitations. See
Restatement (Second), at 309 (obligor who wishes to
avoid strict liability for breach may “limi[t] his obligation
by agreement”). Here, however, the safe-berth clause is
clear that the parties contracted for no such thing.
CARCO does not identify—nor can we discern—any lan-
guage in the clause hinting at “due diligence” or related
concepts of “fault.” That omission is particularly notable
in context: Where the parties intended to limit obliga-
tions based on due diligence elsewhere in the charter
party, they did so expressly. See Addendum to Brief for
Petitioners 4a (providing that the vessel “b[e] seaworthy,
and hav[e] all pipes, pumps and heater coils in good work-
ing order, . . . so far as the foregoing conditions can be
attained by the exercise of due diligence”); id., at 13a (re-
lieving vessel owner of responsibility for certain conse-
quences of any “unseaworthiness existing . . . at the in-
ception of the voyage [that] was discoverable by the
exercise of due diligence”); id., at 41a (requiring vessel
owner to “exercise due diligence to ensure that [a drug
and alcohol] policy [onboard the vessel] is complied
with”).5 That the parties did not do so in the safe-berth
——————
5 It also bears mention that many other industry form charter par-
ties—not selected by CARCO and Star Tankers—explicitly limit the lia-
bility that may flow from a charterer’s selection of a berth. See, e.g., 2E
J. Force & L. Lambert, Benedict on Admiralty, ch. XXVII, §27–567 (rev.
7th ed. 2019) (INTERTANKVOY form specifies that “[c]harterers shall
exercise due diligence to ascertain that any places to which they order
the vessel are safe for the vessel and that she will lie there always
10 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
clause specifically is further proof that they did not intend
for such a liability limitation to inhere impliedly.6
Unable to identify any liability-limiting language in the
safe-berth clause, CARCO points to a separate “general ex-
ceptions clause” in the charter party that exempts a char-
terer from liability for losses due to “perils of the seas.” Id.,
at 14a. According to CARCO, the “general exceptions
clause” demonstrates that the parties did not intend the
safe-berth clause to impose liability for a “peri[l] of the seas”
like an abandoned anchor. That argument founders on a
critical component of the “general exceptions clause”: By its
terms, it does not apply when liability is “otherwise . . . ex-
pressly provided” in the charter party. Ibid. The safe-berth
clause, as explained above, expressly provides for liability
stemming from the designation of an unsafe berth. The
catchall “general exceptions clause” neither supersedes nor
overlays it.7
Likewise immaterial is another clause of the charter
——————
afloat”).
6 After all, language that limits liability is necessary to overcome the
default rule of strict liability for contractual breach. Supra, at 8–9. That
stands in contrast to the established principle that charter parties can,
at least in the circumstances here, create warranties without invoking
express warranty language. Supra, at 7–8. The dissent overlooks this
distinction when it claims that the absence of express warranty language
in the safe-berth clause and the presence of it elsewhere in the charter
party imply that no warranty may be found here. Post, at 4.
7 At oral argument, CARCO urged that the abandoned anchor was not
only “a peril of the sea” but also “an abnormal occurrence.” Tr. of Oral
Arg. 28–29. CARCO’s “abnormal occurrence” argument appears to rest
on a recent decision by the Supreme Court of the United Kingdom inter-
preting a safe-berth clause not to impose liability if an “abnormal occur-
rence” rendered the selected berth unsafe. See Gard Marine & Energy
Ltd. v. China Nat. Chartering Co., [2017] UKSC 35 (The Ocean Victory).
In its opening brief to this Court, however, CARCO did not cite The
Ocean Victory or argue that the abandoned anchor here constituted an
“abnormal occurrence.”
Cite as: 589 U. S. ____ (2020) 11
Opinion of the Court
party that requires Star Tankers to obtain oil-pollution in-
surance. According to CARCO, that clause evidences the
parties’ intent to relieve CARCO of oil-spill liability under
the safe-berth clause. But the oil-pollution insurance that
Star Tankers must obtain covers risks beyond simply those
attendant to the selection of an unsafe berth. And CARCO’s
reading of the insurance clause (as relieving CARCO of oil-
spill liability) does not square with its reading of the safe-
berth clause (as imposing such liability when CARCO fails
to exercise due diligence).
Finally, CARCO offers an alternative interpretation of
the safe-berth clause that focuses on the vessel master’s
right instead of the charterer’s duty. This alternative in-
terpretation proceeds from the subclause specifying that
the selected berth be one that the vessel may “proceed
thereto, lie at, and depart therefrom always safely afloat,
any lighterage [i.e., transfer of goods between vessels] being
at the expense, risk and peril of the Charterer.” Id., at 8a.
On CARCO’s reading, that subclause means that the vessel
master has a right to refuse entry into a berth that the mas-
ter perceives to be unsafe, and the charterer must pay any
expenses resulting from the refusal. We have, to be sure,
recognized that similarly worded safe-berth clauses may
implicitly denote a vessel master’s right to refuse entry and
the charterer’s resultant obligation to bear the costs of that
refusal. See Mencke v. Cargo of Java Sugar, 187 U.S. 248
(1902); The Gazelle and Cargo, 128 U.S. 474 (1888). But
that a charterer may be liable for expenses when a vessel
master justifiably refuses to enter an unsafe berth in no
way abates the scope of the charterer’s liability when a ves-
sel in fact enters an unsafe berth. And a tacit recognition
of a vessel master’s right of refusal does not overwrite the
safe-berth clause’s express prescription of a warranty of
safety.
The dissent, too, offers an alternative interpretation. It
claims that if the safe-berth clause binds the charterer to a
12 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
warranty of safety, the clause must bind the vessel master
to effectively the same warranty—due to the clause’s state-
ment that “ ‘[t]he vessel shall load and discharge at [a] safe
place or wharf.’ ” Post, at 6 (quoting Addendum to Brief for
Petitioners 8a). Because that would “creat[e] contradictory
warranties of safety,” the dissent continues, the safe-berth
clause must not bind the charterer to a warranty of safety
(or, apparently, impose an obligation on the charterer at
all). Post, at 7. This conclusion does not follow because the
conflict diagnosed by the dissent does not exist.
The safe-berth clause says that “[t]he vessel shall load
and discharge at any safe place or wharf, . . . which shall be
designated and procured by the Charterer.” Addendum to
Brief for Petitioners 8a. Plainly, that means that the “safe
place or wharf . . . shall be designated and procured by the
Charterer.” Ibid. The vessel master’s duty is only to “load
and discharge” at the chosen safe berth. Ibid. (Not, as the
dissent urges, at any safe berth the vessel master so desires
regardless of the charterer’s contractually required selec-
tion. Post, at 6, n. 4.) On its face, the vessel master’s duty
creates no tension with the charterer’s duty. And it strains
common sense to insist (as the dissent does) that the vessel
master implicitly has a separate, dueling obligation regard-
ing the safety of the berth, when the clause explicitly as-
signs that responsibility to the charterer. Post, at 6–7. Per-
haps the dissent says it best: We must “reject [this]
interpretation that . . . ‘se[ts] up . . . two clauses in conflict
with one another.’ ” Post, at 6 (quoting Mastrobuono v.
Shearson Lehman Hutton, Inc., 514 U.S. 52, 64 (1995)).
We instead take the safe-berth clause at face value. It
requires the charterer to select a safe berth, and that re-
quirement here amounts to a warranty of safety.
B
CARCO’s remaining arguments point to authorities that
have purportedly construed safe-berth clauses to contain
Cite as: 589 U. S. ____ (2020) 13
Opinion of the Court
limitations on liability. These arguments find no foothold
in the language of the charter party at issue here. And none
is otherwise convincing.
CARCO asserts, for instance, that a leading admiralty
treatise has urged that safe-berth clauses ought not be in-
terpreted as establishing a warranty. See G. Gilmore & C.
Black, Law of Admiralty §4–4, p. 205 (2d ed. 1975) (Gilmore
& Black). Gilmore and Black’s position, however, stemmed
from their belief that vessel masters or vessel owners are
generally better positioned than charterers to bear the lia-
bility of an unsafe berth. See ibid. (reasoning that charter-
ers “may know nothing of the safety of ports and berths, and
[are] much less certain to be insured against” liability for
losses stemming from an unsafe berth).8 Gilmore and Black
also acknowledged that, as of 1975, many courts had not
interpreted safe-berth clauses in the manner that they pro-
posed. See id., at 204, and n. 34a, 206, and n. 36. Whatever
Gilmore and Black sought to prevail upon courts to adopt
as a prescriptive matter does not alter the plain meaning of
the safe-berth clause here.
CARCO next contends that in Atkins v. Disintegrating
Co., 18 Wall. 272 (1874), this Court acknowledged that safe-
berth clauses do not embody a warranty of safety. That
——————
8 The dissent’s claim that Gilmore and Black looked to “ ‘the very words
of the usual clauses,’ ” post, at 3, n. 1 (quoting Gilmore & Black §4–4, at
204), relies on a discussion not of the charterer’s obligation under the
safe-berth clause but of the vessel master’s lack of such obligation, Gil-
more & Black §4–4, at 204–205. At most, Gilmore and Black “suggested”
that interpreting safe-berth clauses to relieve vessel masters of any obli-
gation to enter an unsafe berth “might easily be read to contradict” any
“affirmative liability” on the part of the charterer “in case of mishap.”
See id., §4–4, at 205. But that supposition is at odds with the language
of the safe-berth clause here, which (as even CARCO acknowledges)
plainly contemplates at least some liability for the charterer’s designa-
tion of an unsafe berth. Supra, at 6–7, and n. 3, 8. And as explained, a
vessel master’s ability to refuse entry into an unsafe berth does not logi-
cally or textually diminish a charterer’s liability when the vessel master
in fact enters an unsafe berth selected by the charterer. Supra, at 11.
14 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
greatly overreads Atkins. In that case, this Court affirmed
a District Court’s ruling that, although the berth selected
by the charterer was not safe, the vessel master had
“waived” the protection of the safe-berth clause. Atkins v.
Fibre Disintegrating Co., 2 F. Cas. 78, 79 (EDNY 1868); see
Atkins, 18 Wall., at 299. No one posits that the District
Court’s waiver holding has any significance in this case.
CARCO, however, points to language in the District Court’s
opinion observing that the “safe” berth referenced in the
charter party “impl[ied one] which th[e] vessel could enter
and depart from without legal restraint, and without incur-
ring more than the ordinary perils of the seas.” Atkins, 2
F. Cas., at 79. But the District Court’s remark—that a
berth may be safe even if certain perils lurk within—did not
bear on its finding that the berth in question was unsafe or
its holding that the vessel master had “waived” the protec-
tion of the safe-berth clause. When this Court approved of
the District Court’s “views” and “conclusions,” Atkins, 18
Wall., at 299, it did not adopt as controlling precedent—for
all safe-berth clauses going forward—an observation that
was not controlling even for the District Court.
Also misplaced is CARCO’s reliance on Orduna S. A., 913
F.2d 1149. True, the Fifth Circuit there held that a simi-
larly unqualified safe-berth clause imposed a duty of due
diligence. Id., at 1157. But in so holding, the court did not
purport to interpret the language of the safe-berth clause at
issue in that case. Id., at 1156–1157. Instead, it looked
principally to tort law and policy considerations. See, e.g.,
id., at 1156 (“requiring negligence as a predicate for the
charterer’s liability does not increase the risk that the ves-
sel will be exposed to an unsafe berth”); id., at 1157 (“no
legitimate legal or social policy is furthered by making the
charterer warrant the safety of the berth it selects”). Nei-
ther tort principles nor policy objectives, however, override
the safe-berth clause’s unambiguous meaning.
More consistent with traditional contract analysis is the
Cite as: 589 U. S. ____ (2020) 15
Opinion of the Court
Second Circuit’s long line of decisions interpreting the lan-
guage of unqualified safe-berth clauses to embody an ex-
press warranty of safety. See, e.g., Paragon Oil Co., 310
F.2d, at 172–173 (“the express terms of [the] contract” es-
tablished a “warranty” obliging the charterer “to furnish,
not only a place which he believes to be safe, but a place
where the chartered vessel can discharge ‘always afloat’ ”
(some internal quotation marks omitted)); Park S. S. Co. v.
Cities Serv. Oil Co., 188 F.2d 804, 805–806 (CA2 1951)
(“the natural meaning of ‘safe place’ is a place entirely safe,
not an area only part of which is safe,” and “the charter
party was an express assurance that the berth was safe”);
Cities Serv. Transp. Co. v. Gulf Refining Co., 79 F.2d 521
(CA2 1935) (per curiam) (the “charter party was itself an
express assurance . . . that at the berth ‘indicated’ the ship
would be able to lie ‘always afloat’ ”). Those decisions,
which focused on the controlling contract language, all
point in the same direction: When the language of a safe-
berth clause obliges a charterer to select a safe berth with-
out qualifying the charterer’s duty or the assurance of
safety that language establishes a warranty. That aligns
with our decision today.9
III
We conclude that the language of the safe-berth clause
here unambiguously establishes a warranty of safety, and
that CARCO has identified “no reason to contravene the
clause’s obvious meaning.” Kirby, 543 U.S., at 31–32. We
emphasize, however, that our decision today “does no more
than provide a legal backdrop against which future [charter
parties] will be negotiated.” Id., at 36. Charterers remain
——————
9 The parties also dispute whether the prevailing industry usage of
safe-berth clauses supports reading the safe-berth clause here as a war-
ranty or as a promise of due diligence. Because the express language of
the safe-berth clause is susceptible to only one meaning, we need not ad-
dress these arguments.
16 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
Opinion of the Court
free to contract around unqualified language that would
otherwise establish a warranty of safety, by expressly lim-
iting the extent of their obligations or liability.
* * *
For the foregoing reasons, we conclude that the plain
language of the safe-berth clause establishes a warranty
of safety and therefore affirm the judgment of the Third
Circuit.
It is so ordered.
Cite as: 589 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–565
_________________
CITGO ASPHALT REFINING COMPANY, ET AL.,
PETITIONERS v. FRESCATI SHIPPING
COMPANY, LTD., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[March 30, 2020]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
The majority concludes that the safe-berth clause in the
contract at issue unambiguously created a warranty of
safety by the charterer. Although this interpretation pro-
vides a clear background rule for the maritime industry to
contract against, it is the wrong rule and finds no basis in
the contract’s plain text. I would hold that the plain lan-
guage of the safe-berth clause contains no warranty of
safety and remand for factfinding on whether industry cus-
tom and usage establish such a warranty in this case. Ac-
cordingly, I respectfully dissent.
I
In 2001, Star Tankers Inc. (Star) entered into a voyage
charter party with CITGO Asphalt Refining Company
(CARCO). That contract included a safe-berth clause that
provided:
“SAFE BERTHING — SHIFTING. The vessel shall
load and discharge at any safe place or wharf, or along-
side vessels or lighters reachable on her arrival, which
shall be designated and procured by the Charterer, pro-
vided the Vessel can proceed thereto, lie at, and depart
therefrom always safely afloat, any lighterage being at
2 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
THOMAS, J., dissenting
the expense, risk and peril of the Charterer.” Adden-
dum to Brief for Petitioners 8a.
I agree with the majority that we must interpret the safe-
berth clause “by [its] terms and consistent with the intent
of the parties.” Norfolk Southern R. Co. v. James N. Kirby,
Pty Ltd., 543 U.S. 14, 31 (2004). Unlike the majority, how-
ever, I conclude that the plain meaning of the safe-berth
clause does not include a warranty of safety.
A
The safe-berth clause sets out the rights and obligations
of the vessel master and the charterer. The clause requires
the vessel master to “load and discharge at [a] safe place or
wharf,” but it also gives the master the right to refuse to
proceed if the vessel cannot “lie at, and depart therefrom
always safely afloat.” Addendum to Brief for Petitioners 8a.
The charterer has the right to “designat[e]” a “safe place or
wharf ” for discharge. Ibid. That right, however, must be
exercised by the charterer, see ibid. (using mandatory lan-
guage), and the act of designation must be made in good
faith, see Restatement (Second) of Contracts §205 (1979).
The right to designate is limited to places that the vessel
can reach, with the charterer bearing the “expense, risk and
peril” of any “lighterage” (i.e., transfer of cargo by means of
another vessel) resulting from its selection. Addendum to
Brief for Petitioners 8a. As the leading admiralty treatise
succinctly explains, the safe-berth clause provides that “if
the port or the berth is unsafe, the master is excused from
taking his ship in, and the charterer must bear the extra
expense . . . entailed by [a proper] refusal” of its selected
place of discharge. G. Gilmore & C. Black, Law of Admi-
ralty §4–4, p. 204 (2d ed. 1975).1
——————
1 The majority states that the views of Gilmore and Black “stemmed
from their belief that vessel masters or vessel owners are generally bet-
ter positioned than charterers to bear the liability of an unsafe berth.”
Ante, at 13. While the treatise does contain policy-based arguments, it
Cite as: 589 U. S. ____ (2020) 3
THOMAS, J., dissenting
This reading is consistent with this Court’s prior deci-
sions. The Court has interpreted safe-berth clauses as
providing a limit on the “right to select a dock.” Mencke v.
Cargo of Java Sugar, 187 U.S. 248, 253 (1902); see also The
Gazelle and Cargo, 128 U.S. 474, 485–486 (1888) (holding
that the right of selection is limited by the terms of the con-
tract). And it has concluded that, if a charterer selects a
place of discharge that cannot be safely reached, the char-
terer is liable for lighterage expenses. Mencke, 187 U.S.,
at 253–254.
Thus, under the plain language of the safe-berth clause,
the vessel master has a duty of discharge and right of re-
fusal, while the charterer has a right of selection and duty
to pay for lighterage.
B
The majority does not disagree that the safe-berth clause
confers these duties and rights. Quite the opposite. It rec-
ognizes our precedents as embracing this understanding.
Ante, at 11. The majority concludes, however, that in addi-
tion to the rights of selection and refusal, the language of
the safe-berth clause “unambiguously” establishes a war-
ranty of safety by the charterer. Ante, at 15. With this, I
cannot agree.
1
The majority first concludes that the safe-berth clause
contains an “express prescription of a warranty of safety.”
——————
also looks to “the very words of the usual clauses” to conclude that the
master’s clear textual right to refuse to enter an unsafe port “might eas-
ily be read to contradict” an interpretation of a safe-berth clause that
“creat[es] an affirmative liability of charterer to ship, in case of mishap.”
Gilmore & Black, Law of Admiralty §4–4, at 204–205. Gilmore and
Black’s review of safe-berth clauses contains just as much, if not more,
analysis of the text than the conclusory assertions of the majority. See
ante, at 6.
4 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
THOMAS, J., dissenting
Ante, at 11; see also ante, at 6. This assertion finds no sup-
port whatsoever in the plain language of the clause.
First of all, the contract between Star and CARCO con-
tains no express warranty of safety by the charterer, though
the parties repeatedly used express language to create war-
ranties elsewhere in the contract. See Addendum to Brief
for Petitioners 26a (“Charterer’s warrant . . .”), 30a (“Own-
ers warrant . . .”), ibid. (“Owner warrants . . .”), 31a
(“Owner warrants . . .”), 41a (“Owner warrants . . .”), 42a
(“Owner warrants . . .”), 43a (“Owner warrants . . .”), 44a
(“Owner warrants . . .”), 45a (“Owner warrants . . .”). In
contrast, they did not state that the charterer “warrants”
the safety of the place of discharge in the safe-berth clause.
As the majority obliquely recognizes—when trying to rebut
a different argument—“[t]hat omission is particularly nota-
ble in context: Where the parties intended to [create war-
ranties] elsewhere in the charter party, they did so ex-
pressly.” Ante, at 9. “That the parties did not do so in the
safe-berth clause specifically is . . . proof that they did not
intend for such a . . . limitation to inhere impliedly.” Ante,
at 9–10.2
But even setting aside this evidence of the parties’ intent
(as the majority does), the safe-berth clause contains no lan-
guage that can be construed to create a warranty of safety.
Nor does the clause so much as suggest that the charterer
——————
2 Attempting to avoid the inconsistent application of its own principle,
the majority claims there is a distinction between language limiting lia-
bility and language creating liability. Ante, at 10, n. 6. In the majority’s
view, express language is “necessary” to limit liability, but the parties
can create warranty liability in numerous ways. Ibid. Even assuming
that is correct, it does not negate the proof of the parties’ intent here.
The majority can point to no example of the parties “creat[ing] warran-
ties without invoking express warranty language” in this contract. Ibid.
By contrast, the contract contains no fewer than nine clauses using ex-
press language to create a warranty. The commonsense conclusion is
that, when the parties intended to create a warranty, they used express
language to do so.
Cite as: 589 U. S. ____ (2020) 5
THOMAS, J., dissenting
is liable for all damages arising out of unsafe port condi-
tions. In fact, the trade association that promulgated the
ASBATANKVOY form used in this case specifically
acknowledged that the language of “the clause does not
specify whether the charterer absolutely warrants the
safety of the berth.” Brief for Maritime Law Association of
the United States and the Association of Ship Brokers &
Agents (USA) Inc. as Amici Curiae on Pet. for Cert. 19 (em-
phasis added).
Notwithstanding this, the majority states that the clause
“requires the charterer to designate a ‘safe’ berth” and that
requirement “binds the charterer to a warranty of safety.”
Ante, at 6. But certainly not every obligation in a contract
is a warranty. See Brooks, Tarlton, Gilbert, Douglas &
Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1375,
n. 14 (CA5 1987). Parties often agree to obligations that
govern only their conduct without making any assurances
as to an ultimate result. For example, “[a] promise to repair
parts of [a] powertrain for six years is a promise that the
manufacturer will behave in a certain way, not a warranty
that the vehicle will behave in a certain way.” Cosman v.
Ford Motor Co., 285 Ill. App. 3d 250, 257, 674 N.E.2d 61,
66 (1996). The majority does not confront, or even
acknowledge, this distinction. Instead, it indifferently con-
flates a duty to take a certain action—“designat[e]” a wharf
understood to be safe—with a warranty guaranteeing a cer-
tain result—the ultimate safety of the berth.3
By conflating an action with an outcome, the majority
converts every obligation tangentially related to safety into
a warranty of safety. Consider the contract in this case, for
example. If the language stating that the charterer “shall
——————
3 I am skeptical that the phrase “place or wharf ” can be read to include
the entire berth. But CARCO failed to develop any argument related to
the scope of this phrase, so I do not address the issue.
6 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
THOMAS, J., dissenting
. . . designat[e] and procur[e]” a “safe place or wharf ” cre-
ates a warranty of safety, then so does the language stating
that “[t]he vessel shall load and discharge at [a] safe place
or wharf.” Addendum to Brief for Petitioners 8a. There is
no textual reason that an obligation to “designat[e]” is
any different from an obligation to “discharge.” Ibid. And
policy-based rationalizations cannot justify a distinction be-
cause “[n]either tort principles nor policy objectives . . .
override the safe-berth clause’s unambiguous meaning.”
Ante, at 14. Thus, employing the majority’s approach, the
safe-berth clause contains two competing warranties of
safety—one from the charterer and one from the vessel
master—that could impose conflicting obligations.4 Courts
typically avoid construing contracts in such a manner. See
Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S.
52, 64 (1995) (rejecting an interpretation that the Court be-
lieved “se[t] up . . . two clauses in conflict with one an-
other”); United States v. Pielago, 135 F.3d 703, 710 (CA11
1998) (“It is a cardinal principle of contract law that no term
of a contract should be construed to be in conflict with an-
other unless no other reasonable construction is possible”).
——————
4 To support its assertion that no conflict exists, the majority rewrites
the text of the safe-berth clause. The majority asserts that “[t]he vessel
master’s duty is only to ‘load and discharge’ at the chosen safe berth.”
Ante, at 12 (emphasis added). But that is not what the clause says. The
safe-berth clause states: “The vessel shall load and discharge at any safe
place or wharf.” Addendum to Brief for Petitioners 8a (emphasis added).
And, by requiring the charterer to pay for lighterage expenses resulting
from the designation of an unsafe port, the clause specifically contem-
plates the vessel master declining to discharge at a place or wharf that
is not safe. Ibid.; see also Mencke v. Cargo of Java Sugar, 187 U.S. 248,
253 (1902) (requiring the charterer to pay lighterage expenses where ves-
sel discharged at a location other than the chosen berth). The “which”
clause in the provision—“which shall be designated and procured by the
Charterer”—modifies “place or wharf,” creating a separate obligation for
the charterer. Addendum to Brief for Petitioners 8a. That separate ob-
ligation, however, does not negate the express obligation imposed on the
vessel. Ibid. (emphasis added).
Cite as: 589 U. S. ____ (2020) 7
THOMAS, J., dissenting
Setting aside this contract, the majority makes no attempt
to limit its expansive interpretive approach or provide the
barest of explanation as to why all obligations that involve
the word “safe” should not be construed as warranties of
safety.
In a contract replete with express language creating war-
ranties, I would not construe the plain language of the safe-
berth clause as indirectly creating contradictory warranties
of safety. And I certainly cannot agree with the majority’s
conclusion that the safe-berth clause “unambiguously” es-
tablishes a warranty of safety by the charterer. Ante, at 15.
2
Perhaps recognizing the weakness of its assertion that
the safe-berth clause contains a duty or warranty of safety,
the majority pivots to an independent legal theory. It
claims that the safe-berth clause constitutes a material
statement of fact and therefore creates a warranty. Ante,
at 7. The majority’s invocation of this theory is puzzling, to
say the least.
As an initial matter, this issue was not preserved in the
Court of Appeals, which, understandably, did not address
the question. In re Frescati Shipping Co., Ltd., 718 F.3d
184, 200–203 (CA3 2013). Nor was the issue developed be-
fore this Court. All we have before us is one conclusory para-
graph in the United States’ brief. See Brief for United
States 25. Accordingly, I would decline to address this un-
preserved and undeveloped issue.
Even setting aside forfeiture, the majority’s analysis is
questionable in multiple respects. First, the majority as-
serts that “the safe-berth clause contains a statement of
material fact regarding the condition of the berth selected
by the charterer.” Ante, at 7. Not so. The safe-berth clause
says nothing about the safety of the port actually selected
by CARCO (the Paulsboro berth), or any specific berth for
8 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
THOMAS, J., dissenting
that matter. It states only that the charter “shall . . . des-
ignat[e]” a place or wharf. The majority infers from
CARCO’s selection of the Paulsboro berth that CARCO be-
lieved the place or wharf was safe. But that is not a state-
ment of fact; it is an inference. I hesitate to equate the two
without briefing on the issue, or even a single example of a
court adopting this approach.
Second, even assuming the safe-berth clause contains a
statement of fact, it is not clear that the Court is in a posi-
tion to decide whether that statement of fact is “material.”
Many jurisdictions appear to treat materiality as a question
of fact when determining whether a statement creates a
warranty. Royal Bus. Machines, Inc. v. Lorraine Corp., 633
F.2d 34, 43 (CA7 1980) (“Whether a seller affirmed a fact
or made a promise amounting to a warranty is a question
of fact reserved for the trier of fact”); McDonnell Douglas
Corp. v. Thiokol Corp., 124 F.3d 1173, 1176 (CA9 1997)
(“Whether the seller’s representations formed part of the
basis of the parties’ bargain is a question of fact”); Crothers
v. Cohen, 384 N.W.2d 562, 563 (Minn. App. 1986)
(“Whether a given representation constitutes a warranty is
ordinarily a question of fact for the jury”); General Supply
& Equip. Co. v. Phillips, 490 S.W.2d 913, 917 (Tex. Civ.
App. 1972) (citing cases from Illinois, Iowa, Alabama, and
Ohio). And “our cases have recognized in other contexts
that the materiality inquiry, involving as it does ‘delicate
assessments of the inferences a “reasonable [deci-
sionmaker]” would draw from a given set of facts and the
significance of those inferences to him, . . . [is] peculiarly
on[e] for the trier of fact.’ ” United States v. Gaudin, 515
U.S. 506, 512 (1995). Although this Court has relied on
factual findings to support a materiality conclusion, Da-
vison v. Von Lingen, 113 U.S. 40, 50 (1885), I am not aware
of a case in which this Court has treated the materiality
inquiry as a pure question of law without relying on any
factual findings whatsoever. Again, without briefing on
Cite as: 589 U. S. ____ (2020) 9
THOMAS, J., dissenting
this issue, I would hesitate to depart, without explanation,
from the approach taken by many courts throughout the
country.
Third, assuming the contract contains a statement of fact
regarding the safety of the berth and further assuming that
materiality is a question of law, I am unpersuaded by the
majority’s materiality analysis. Materiality must turn at
least in part on a statement’s “tendency to induce the mak-
ing of the contract.” 22 R. Lord, Williston on Contracts
§58.11, p. 41 (4th ed. 2017). The majority’s opinion says
nothing about that (likely fact-driven) question. It first
states that the safety of the selected berth is “the entire root
of the safe-berth clause” and “the very reason for the
clause’s inclusion.” Ante, at 7. Even accepting the major-
ity’s interpretation, merely proving that a statement is in-
cluded in a contract does not mean that it is material. If
that were the law, then every statement in a contract would
be material and therefore constitute a warranty. That can-
not be right. The majority next concludes that “[u]nder any
conception of materiality and any view of the parties’ in-
tent, the charterer’s assurance [of safety with no conditions]
surely counts as material.” Ibid. But what is the basis for
this conclusion? The majority’s experience negotiating
maritime contracts? It defies reality to assert that a stand-
ard provision in a form contract—which has been subject to
different interpretations for nearly three decades—induced
every single vessel master using that form contract to enter
into the agreement. We should recognize this for what it is:
an unsupported judicial pronouncement on a question of
fact.
The majority’s attempt to shore up its analysis with its
alternative statement-of-fact theory makes no difference to
the outcome of this case, because the majority erroneously
holds that the safe-berth clause contains an absolute duty
that was breached. See ante, at 6; supra, at 3–7. But its
unreasoned dicta will undoubtedly cause problems for
10 CITGO ASPHALT REFINING CO. v. FRESCATI SHIPPING CO.
THOMAS, J., dissenting
lower courts and parties in the future.
II
The lack of unambiguous language creating a warranty
of safety in the safe-berth clause does not end our inquiry.
“ ‘In this endeavor, as with any other contract, the parties’
intentions control.’ ” M&G Polymers USA, LLC v. Tackett,
574 U.S. 427, 435 (2015) (quoting Stolt-Nielsen S. A. v. An-
imalFeeds Int’l Corp., 559 U.S. 662, 682 (2010)); see also
ante, at 5–6. The vessel’s owner and the United States ar-
gue that, setting aside the plain meaning of the contract’s
text, longstanding industry custom supports interpreting
the safe-berth clause as a warranty of safety. I would re-
mand for factfinding on this issue.
Under both “general maritime law” and ordinary princi-
ples of contract interpretation, evidence of an established
“custom and usage” can be used as an aid to “determin[e]
the parties’ intent” and the meaning of the language in-
cluded in the contract. Stolt-Nielsen, 559 U.S., at 674, n. 6
(internal quotation marks omitted); see also U. C. C. §1–
303 Comment 3 (2017); Restatement (Second) of Contracts
§220. But “the existence and scope of a particular usage is
usually a question of fact.” Sun Oil Co. v. Wortman, 486
U.S. 717, 732, n. 4 (1988); see also U. C. C. §1–303(c); Re-
statement (Second) of Contracts §219, Comment a; §222(2).
Here, we have no factual findings from the District Court
to support a custom-or-usage argument. Such findings
seem particularly necessary in this case: “A trade usage can
of course be confined to a particular geographical area,” 5
M. Kniffin, Corbin on Contracts §24.13, p. 110 (J. Perillo
ed., rev. 1998), and different areas of the country appeared
to have different understandings of the safe-berth clause at
the time of contracting. See ante, at 5 (recognizing Circuit
split); Brief for North American Export Grain Association
as Amicus Curiae 9 (stating that in “New Orleans . . . safe-
Cite as: 589 U. S. ____ (2020) 11
THOMAS, J., dissenting
berth clauses are understood to impose due diligence obli-
gations”). Accordingly, I would remand for factual findings
on the question whether the parties entered into the char-
ter party with knowledge of an established custom or usage.
* * *
I appreciate the majority’s desire to interpret the safe-
berth clause in a manner that provides clarity to the mari-
time industry. The plain meaning of the contract’s text,
however, does not support the majority’s interpretation.
Fortunately, the majority’s opinion applies only to this spe-
cific contract, and its assertions regarding a material state-
ment of fact are but dicta. Because I would reverse the
judgment of the Court of Appeals and remand for further
proceedings, I respectfully dissent.