Marin Tug & Barge, Inc. v. Westport Petroleum, Inc.

*759 MEMORANDUM *

By separate order, we certify one issue in this case to the Supreme Court of California. In this Memorandum, we address the other issues, affirming in part, reversing in part, and remanding for further proceedings. Because the parties are familiar with the record, we will recite the facts only as necessary to explain our decision.

1. The district court was entitled to credit the testimony of Mr. Long and Mr. Sila that they did not expect high levels of catalyst to remain in Line B after the transfer of oil from Tank 147 to Tank 1072. See Anderson v. Bessemer City, 470 U.S. 564, 575 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985). Accordingly, the court properly found that Shell did not intentionally load contaminated fuel onto the Marin Tenor, and was not substantially certain that contamination of the Tenor would occur. We therefore affirm the district court’s conclusion that Shell did not commit an intentional trespass.

2. In calculating damages, the district court did not apply the liquidated demurrage rate of $400 per hour stipulated by Articles Three and Eleven of Marin Tug’s Schedule of Rates, Terms, and Conditions. Because the court’s decision declining to…