Buckeye Partners, L.P. v. GT USA Wilmington, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
BUCKEYE PARTNERS, L.P., and )
BUCKEYE PT TERMINALS LP, )
)
Plaintiffs, )
)
v. ) C.A. No. 2020-0255-JTL
)
GT USA WILMINGTON, LLC, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: February 2, 2022
Date Decided: March 29, 2022
Jody C. Barillare, Amy M. Dudash, MORGAN, LEWIS & BOCKIUS LLP, Wilmington,
Delaware; Michael D. Blanchard, MORGAN, LEWIS & BOCKIUS LLP, Hartford,
Connecticut; Julie S. Goldemberg, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia,
Pennsylvania; Leslie B. Spoltore, OBERMAYER REBMANN MAXWELL & HIPPEL
LLP, Wilmington, Delaware; Nicholas Poduslenko, Matthew S. Olesh, OBERMAYER
REBMANN MAXWELL & HIPPEL LLP, Philadelphia, Pennsylvania; Attorneys for
Plaintiffs.
Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, Delaware; Thomas J.
Elliott, Frederick P. Santarelli, Jack P. Elliott, Colin J. O’Boyle, ELLIOTT GREENLEAF,
P.C., Blue Bell, Pennsylvania; Attorneys for Defendant.
LASTER, V.C.
Defendant GT USA Wilmington, LLC (“GT”) operates the marine terminal located
at the Port of Wilmington (the “Port” or the “Terminal”). Plaintiff Buckeye PT Terminals
LP (the “Company”) leases a dock in the Terminal that it uses to operate a terminalling
business involving the transportation and storage of liquid petroleum products.
In its role as marine terminal operator, GT has the authority to publish a tariff that
establishes rates that users of the Terminal must pay for specified activities or services. As
a user of the Terminal, the Company is subject to the tariff. The rates in the tariff only
apply if GT and the user of the Terminal do not have a specific agreement addressing the
activity or service in question.
In 2018 and 2020, GT issued tariffs that imposed “Terminal Usage Fees” on
stevedores or parties engaged in stevedoring. The Company refused to pay the Terminal
Usage Fees, contending that it was neither a stevedore nor engaged in stevedoring. The
Company also maintained that the rent it paid under the lease provided bargained-for
consideration for the activities involved in operating the terminalling business. The
Company argued that GT could not impose additional and duplicative fees for the same
activities that the Company had always engaged in under the lease.
After attempts at settlement failed, GT tried to force the Company to pay the
Terminal Usage Fees by interfering with the Company’s business. The Company’s
terminalling operation is relatively simple. When a vessel carrying liquid petroleum
product arrives at the dock, a Company employee helps connect a hose that runs from the
vessel to a manifold. The manifold connects to pipes that run under the Terminal and
connect to fuel storage tanks located on a property owned by the Company and adjacent to
the Terminal (the “Tanks”). The vessel uses its pump to send the liquid petroleum product
through the hose, into the manifold, through the pipes, and into the Tanks. The Company’s
customers send tanker trucks to pick up the liquid petroleum product at the Tanks. To get
to and from the Tanks, the trucks drive through the Terminal using Sico Road and Hausel
Road (collectively, the “Disputed Roads”).
To force the Company to pay the Terminal Usage Fees, GT prevented the Company
and its customers from using the Disputed Roads. The blockade threatened to destroy the
Company’s business, and the court enjoined GT from blocking the Company’s access
during the pendency of this litigation.
This post-trial decision addresses two issues. The first is whether the Company owes
the Terminal Usage Fees. The second is whether GT can prevent the Company and its
customers from using the Disputed Roads. The Company wins on both points.
On the first issue, the Company proved that it does not owe the Terminal Usage
Fees because it was neither a stevedore nor engaged in stevedoring. The definition in the
2018 tariff plainly did not apply to the Company. The 2020 tariff redefined the term, but
the new definition was ambiguous. GT was the sole drafter of the tariff, and the doctrine
of contra proferentem calls for reading any ambiguity against GT. The Company also
established that the rent it paid under the lease already provided compensation to GT for
the Company’s right to use the services and engage in the activities necessary to conduct
its terminalling business. Because the lease already encompassed those services and
activities, the lease constituted a specific agreement that precluded the imposition of the
Terminal Usage Fees for those same services and activities. GT did not provide any
2
additional services in exchange for the Terminal Usage Fees, and the Company was not
engaging in any new or different activities that might have warranted charging the Terminal
Usage Fees.
On the second issue, the Company proved that the lease includes an implied
contractual right for the Company and its customers to use the Disputed Roads to access
the Tanks in connection with the Company’s terminalling business. The Company
presented additional theories grounded in property law which, if proven, would have
provided the Company a more durable and expansive right of access. The Company
introduced some evidence in support of its property-based theories, but it failed to carry its
burden of proving them.
I. FACTUAL BACKGROUND
Trial took place over three days. The parties introduced 354 exhibits, including the
deposition transcripts of seven individuals. Four fact witnesses and four experts testified
live.1
1
In the pre-trial order, the parties only agreed to twenty-five stipulations of fact.
This decision relies on them when applicable. Citations in the form “PTO ¶ —” refer to
stipulated facts in the pre-trial order. Dkt. 199. Citations in the form “[Last Name] Tr.”
refer to witness testimony from the trial transcript. Citations in the form “[Last Name]
Dep.” refer to witness testimony from a deposition transcript. Citations in the form “JX —
at —” refer to a trial exhibit with the page designated by the last three digits of the control
or JX number or, if the document lacked a control or JX number, by the internal page
number. If a trial exhibit used paragraph numbers, then references are by paragraph.
Citations in the form “[Last Name] Dem.” refer to demonstratives used by experts at trial.
3
The facts set forth in this decision were proven by a preponderance of the evidence.
The Company’s attempt to prove it had an easement required a showing of clear and
convincing evidence, and the Company failed to meet that standard.2
A. The Company And Its Terminalling Business
Buckeye Partners, L.P. (“Buckeye Parent”) provides logistics services for liquid
petroleum products across the United States and the Caribbean. The Company is a wholly
owned subsidiary of Buckeye Parent.3
For decades, the Company or its predecessors have engaged in essentially the same
business. The Company receives liquid petroleum product from a vessel at the dock. The
vessel uses its pump to cause the liquid petroleum product to flow through a hose and into
2
See K&G Concord, LLC v. Charcap, LLC, 2017 WL 3268183, at *6 (Del. Ch.
Aug. 1, 2017) (requiring clear and convincing evidence to establish an easement by
prescription and an easement by estoppel); 25 Am. Jur. 2d Easements & Licenses § 14,
Westlaw (database updated Feb. 2022) (“An express grant of an easement must be in
writing, and the grantor’s intent to create an easement burdening particular property for the
benefit of another must be clearly and unmistakably communicated.”); Easements &
Licenses, supra, § 100 (“In general, a party claiming an easement has the burden of proof,
and an easement generally must be established by clear and convincing evidence.”
(footnotes omitted)); 3 Tiffany Real Property § 803 (3d ed.), Westlaw (database updated
Sept. 2021) (“Although a plaintiff in a civil action normally must meet his burden by only
a preponderance of the evidence, the plaintiff must overcome a higher clear and convincing
standard to prove an easement.”).
3
Both the Company and Buckeye Parent are plaintiffs, but it is not clear why
Buckeye Parent is a party to the case. The Company is a signatory to the relevant
agreements, and the Company appears to be the holder of all the rights that the plaintiffs
claim to have. The declarations that this decision awards run in favor of the Company.
Buckeye Parent will benefit from those declarations as the sole owner of the Company, but
it does not hold any of the rights that this decision recognizes.
4
a manifold under the dock. The manifold connects to pipes that run underneath the
Terminal for approximately one mile, eventually reaching the Tanks. The Company stores
the liquid petroleum product in the Tanks until its customers retrieve it using tanker trucks.
The Company’s customers use the Disputed Roads to travel to and from the Tanks.
The following picture depicts the geography of the dock, the Disputed Roads
(Hausel Road and Sico Road), and the Tanks.
Hoffman Dem. 39 (“Dock” label and arrow added). As the photo makes clear, the
Company’s terminalling business depends on using the Disputed Roads to access the
Tanks.
The Company has operated its terminalling business in the same manner since at
least 2008, when the Company entered into the lease at issue in this case. See JX 120 (the
“Lease”). A recital in the Lease refers to a pre-existing lease agreement dating back to
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1973. Id. at ’757. The evidence indicates that similar terminalling businesses have operated
at the Port for nearly a century.
1. SICO Establishes The Original Terminalling Business.
The Port opened in 1923. JX 67 at ’117. Just three years later, in 1926, the Schock
Independent Oil Company (“SICO”) took steps to establish a terminalling business by
entering into a lease with the City of Wilmington. See JX 78 at 1. Through the lease, SICO
secured the property rights necessary to “construct piers and bulkheads along the Delaware
River adjoining the Marine Terminal.” Id. In a resolution approving the lease, the
Wilmington City Council acknowledged that it would give SICO “access to their recently
purchased site of 23 acres where they will erect a plant . . . for th[e] importation and
distribution of petroleum products.” Id.4
Clarence Schock, the President of SICO, stated at the time that “[w]ith our import
plant in Wilmington we will be enabled to receive vessels from American or foreign ports,
discharge and store in Wilmington and distribute to our wholesale stations.” JX 78 at 2. He
thus envisioned a terminalling business comparable to what the Company conducts today.
The parties call the original twenty-three acres of land “Buckeye Parcel # 1.” By
1927, SICO had constructed oil storage tanks with a storage capacity of 11,200,000 gallons
4
Technically, Crane Hook Oil Storage Company, a wholly owned subsidiary of
SICO, acquired Buckeye Parcel # 1. In 1943, Crane Hook conveyed the parcel to SICO.
See JX 238 (“Hoffman Report”) ¶ 27; JX 102. In 1955, SICO changed its name to the SICO
Foundation. JX 113 at ’677. In 2003, the SICO Foundation changed its name to the
Clarence Schock Foundation. JX 42 at ’174.
6
on Buckeye Parcel # 1. Pictures from the 1930s depict trucks pulling up to SICO’s tanks.
JX 64 at 10; JX 121.
In 1951, SICO purchased additional land to accommodate its growing terminalling
business. Hoffman Report ¶ 57. The parties refer to this as Buckeye Parcel # 2.
The Tanks sit on a combined parcel consisting of Buckeye Parcel #1 and Buckeye
Parcel #2 (together, the “Buckeye Properties”). See Hoffman Dem. 24; JX 98. As noted,
the use of Buckeye Parcel #1 for a terminalling business involving access to petroleum
storage tanks dates back to at least 1927.
There is no evidence indicating that anyone ever restricted SICO and its customers
from accessing the combined parcel. Frank Eichler, a former president of SICO, informed
the Company’s expert that during his tenure at the Company, which began in the 1950s,
SICO and its customers had “unrestricted access.” Hoffman Tr. 168; see Hoffman Dem.
27.
2. The Delaware Terminal Company Continues The Terminalling
Business.
In 1973, the Delaware Terminal Company began conducting a terminalling
business, initially as a joint venture with SICO. As part of that effort, the Delaware
Terminal Company leased land from SICO to be used for “any lawful purpose, including
specifically the construction, operation and maintenance of terminal[l]ing and storage
facilities for petroleum and petroleum products.” JX 118 § 7(A), at 13–14; see Hoffman
Tr. 168–69.
7
In conjunction with the lease, an affiliate of Delaware Terminal named Energy
Transporters, Inc. negotiated an agreement with the City of Wilmington that granted
Energy Transporters
the right to construct and maintain, at the sole cost and expense of [Energy
Transporters], a pipeline for the transportation of oil, residual oil, petroleum
and petroleum products in the bed of the Christiania Avenue from the Marine
Terminal to a site to be designated by [Energy Transporters] on Commerce
Street, in the rights-of-way of City on Cherry Island for Fourth Street and
Twelfth Street, and across lands owned by City adjacent to the Sico property
near the Marine Terminal.
JX 53 at ’601. A 1975 agreement with the City of Wilmington permitted Delaware
Terminal and SICO as a “joint partnership” to build a sewer line under Sico Road that
could be connected to pipelines under the Tanks. JX 137 at ’996–97. In 1987, Delaware
Terminal merged with Energy Transporters. Hoffman Tr. 172.
There is no evidence indicating that anyone ever restricted Delaware Terminal and
its customers from accessing the combined parcel.
3. Diamond State Acquires The Terminal.
The next significant event for this case took place in 1995, when Diamond State
Port Corporation (“Diamond State”) purchased the Terminal from the City of Wilmington.
Hoffman Tr. 173; JX 67 at ’119. The Department of State of the State of Delaware formed
Diamond State for the purpose of owning and operating the Terminal. JX 67 at ’119.
Although the owner of the Terminal changed, the terminalling business remained the same.
See Klees Tr. 86–87.
After Diamond State acquired the Terminal, there were two changes to the ability
of the Company and its customers to access the Tanks. The first took place in 1999, when
8
Diamond State constructed a gate at the Terminal’s entrance. See JX 239, Ex. E. A gate
continues to exist at the entrance today.
The second occurred in 2007, when the Terminal began requiring that users have a
Transportation Worker Identification Credential to access the Terminal. Hoffman Report ¶
44. That policy remains in effect today. A guard checks every individual before entering
the Terminal, and if a user does not have the credential, then someone with a credential
must accompany the user. Id. All of the Company’s employees who work at the Terminal
and many of its customers have credentials. See Ingalls Tr. 25–26; Klees Tr. 111.
4. The Company Takes Over The Terminalling Business.
In 2005, the Company acquired the Buckeye Properties from SICO, including the
Tanks. JX 42. The Company also acquired other rights from SICO and Diamond State,
including the right to use the dock under an existing lease and various easements granted
by the City of Wilmington. See Hoffman Tr. 175; Lease at ’754; JX 286 at ’494. The
Company began operating the terminalling business.
In 2008, the Company entered into the Lease with Diamond State for
“[a]pproximatley 1,160 linear feet of dock space.” Lease at ’754. The Lease’s initial term
was for approximately three years and four months, with the Company having the option
to extend the Lease up to eight times, each time for a period of five years. Id. § 3. Thus,
the Lease could remain in effect for over forty-three years—until 2051. The Lease remains
in effect today.
The stated purpose of the Lease is for “operating certain docking facilities for the
transportation and storage of oil, petroleum products, hydrocarbons and their derivatives
9
and for the installation and operation of a mooring dolphin with catwalks and utilities.” Id.
at ’754; see id. § 7(b) (“The Premises may be used and occupied for the purpose of
operating certain docking facilities for the purpose of transportation and storage of oil,
petroleum products, hydrocarbons and their derivatives . . . .”). To facilitate its stated
purpose, the Lease granted the Company
full rights of access for ingress and egress to the dock, walkway, and if
available, reasonable parking space at the dock, and ingress and egress over
existing roads owned or controlled by Landlord for access to the dock
(collectively the “Premises”) and as depicted on the drawing marked as
Exhibit “A” attached hereto and made a part hereof.
Id. § 2.
The Lease also granted the Company “an easement with rights and privileges for all
existing and planned dock lines and the existing Conectiv pipeline” and an easement to
“facilitate Tenant’s dock lines and the Conectiv pipeline,” which the Lease defined
collectively as the “Tenant’s Easements.” Id. The Lease contemplated that additional
easements may be requested and granted:
To the extent that easements in addition to those comprising Tenant’s
Easement[s] are necessary or desirable for the performance of Tenant’s
business, Tenant shall request that Landlord grant such easements or
negotiate with the party by whom the easements must be granted. Any such
easements are subject to the reasonable approval of Landlord.
Id. § 9.
Towards the end of long and difficult negotiations over the Lease, the Company
asked for an “exclusive easement for Tenant and Tenant’s customers providing vehicular
and truck access to Tenant’s Wilmington Terminal to facilitate receipt and delivery of
10
petroleum products.” JX 305 at lines 161–63. The “exclusive easement” would have given
the Company exclusive use of Sico Road to access the Tanks. See Bailey Tr. 666–67.
Parul Shukla, Diamond State’s Chief Financial Officer, rejected the request for an
exclusive easement. He summarized Diamond State’s position in a contemporaneous
markup of the Lease: “No: we have neither discussed exclusivity of the easement nor
access.” JX 305 at 37. The request for an exclusive easement was a non-starter for Diamond
State because, as a matter of general practice, Diamond State would not give any user an
exclusive easement. Bailey Tr. 666. Granting an exclusive easement would “restrict the
ability of other tenants to get their cargo from the facility,” which was contrary to Diamond
State’s aim of giving all Port tenants the ability to access Port roads. Bailey Tr. 652; see
also id. at 678–79.
The Lease also established the Company’s rent. Section Five of the Lease
contemplated a fixed base rent, a volume-based fee, and the potential for additional rent.
Lease § 5. The volume-based fee was determined by “the total number of barrels of oil,
petroleum products, hydrocarbons and their derivatives crossing the dock entering into the
Premises plus the total number of barrels of oil crossing the dock exiting from the Premises
annually.” Id. § 5(c) (the “Volume-Based Fee”). The amount charged would increase if
and when the Lease was renewed for additional terms.
The Lease recognized that additional payments could be due under the Terminal’s
tariff for activities and services not covered by the Lease. The relevant section stated:
Except as otherwise provided herein, all terms and conditions of the Port of
Wilmington, Delaware Terminal Tariff FMC No. 21 publishing Rules and
Regulations and Rates and Charges at the Port of Wilmington, Delaware
11
issued by the Diamond State Port Corporation, as amended from time to time,
will apply to this Lease.
Id. § 27(e).
B. GT Takes Over The Terminal.
In 2018, GT obtained the right to operate the Terminal under a concession
agreement with Diamond State. JX 32 (the “Concession Agreement” or “Con. Agr.”). GT
agreed to “faithfully obey and comply with all existing leases and agreements with”
Diamond State, which included the Lease. Id. § 2.3(b). GT thus stepped into the shoes of
Diamond State as the landlord under the Lease.
In the Concession Agreement, GT committed to invest approximately $500 million
in the Terminal and a related facility over the first ten years of the agreement. Id. § 4.9(c).
At the time of trial, GT had invested roughly $118 million. Iannarelli Tr. 454–58. The
Concession Agreement also required GT to pay Diamond State a “Concession Fee” as
compensation for the right to operate the Terminal. Con. Agr. § 4.3. The Concession Fee
is a volume-based fee calculated based on units “handled over the quay . . . [or] in the
Premises.” Id. The “quay” is a synonym for dock. Consequently, if cargo passes over the
dock, it has gone over the quay. Iannarelli Tr. 470; see DiNapoli Tr. 715.
The Concession Agreement identified both Diamond State and GT as “marine
terminal operators under the Shipping Act,” but designated GT as “the operating marine
terminal operator at the Port.” Con. Agr. at ’224. As such, GT has the right to publish a
tariff for the Terminal. See 46 C.F.R. § 525.2(a); Con. Agr. § 21.1. The tariff establishes
rates that users of the Terminal must pay for particular services or to conduct specified
12
activities. The rates in the tariff are enforceable as an implied contract. The tariff rates do
not apply if the terminal operator “has an actual contract with a party covering the services
rendered by the marine terminal operator to that party.” 46 C.F.R. § 525.2(a)(3).
On December 1, 2018, GT published a tariff. See JX 43 (the “2018 Tariff” or “2018
Tar.”). The 2018 Tariff included a “Terminal Usage Fee” to be “assessed against all cargo
discharged or loaded at the Port.” Id. at ’406 (the “2018 Usage Fee”). The 2018 Usage Fee
was “designed to . . . cover[]” the cost of the Concession Fee. Iannarelli Tr. 463 (“[W]e
would not have implemented a terminal usage fee charge but for the concession fee.”).
Reflecting that purpose, the 2018 Tariff defined the 2018 Usage Fee as “a charge, separate
from Wharfage, against the Stevedore for fees related to the public private partnership
agreement.” Id. at ’369 (emphasis added). The 2018 Usage Fee imposed a volume-based
fee determined by the number of containers or quantity of cargo that passed “over the
quay.” Id. at ’406.
The 2018 Tariff did not define “Stevedore,” but it did define “Stevedoring” as “the
physical handling of Container(s) or Cargo between the Vessel and the CY.” Id. at ’369.
The 2018 Tariff defined “Cargo” as “all types of bulk, break bulk, dry bulk or any other
forms of Cargo whatsoever, including but not limited to any solid [or] liquid . . . cargo.”
Id. at ’367. The 2018 Tariff defined “CY” to mean the “Container Yard within the
boundaries of respective Terminal.” Id. The Terminal did not include the Tanks. See
Iannarelli Tr. 556–57; DiNapoli Tr. 714.
In the 2018 Tariff, GT did not claim the right to bar access to the Terminal based on
unpaid fees. The 2018 Tariff provided that if a user had an overdue balance, then “[t]he
13
Port [has] the right[] to deny anyone the use of a berth until all past due accounts are paid.”
2018 Tar. at ’379. A “berth” is a vessel’s place at the dock. The 2018 Tariff did not warn
that a user with an overdue balance could lose access to the Terminal.
C. The Dispute Over The 2018 Usage Fee
The Company refused to pay the 2018 Usage Fee. By letter dated August 22, 2019,
GT notified the Company that it owed $172,401.96 in unpaid fees. JX 44 at ’408. GT
asserted that by not paying the fees, the Company had violated the 2018 Tariff and breached
the Lease. The letter threatened that if the Company failed to pay the amounts due by
August 31, the Company would “be denied access to the Port of Wilmington.” Id.The Company responded by letter dated August 26, 2019. JX 268. The Company
argued that it did not owe the 2018 Usage Fee because it did not employ stevedores or
engage in stevedoring. The Company also argued that the rent it paid under the Lease
already encompassed the services covered by the 2018 Usage Fee. The Company therefore
regarded the 2018 Usage Fee as a “redundant” charge that could not be enforced. Id. at 1.
GT did not block the Company’s access to the Terminal. Instead, the parties began
negotiating a business solution.
D. The 2020 Tariff
On January 1, 2020, while negotiations were still ongoing, GT issued an updated
tariff. See JX 45 (the “2020 Tariff” or “2020 Tar.”). As relevant to this dispute, the 2020
Tariff redefined the Terminal Usage Fee as “[a] separate charge assessed against the
Stevedore.” Id. at ’418 (the “2020 Usage Fee”). GT’s general counsel testified that the
goal was to make the definition simpler and “more succinct.” Iannarelli Dep. 134. Unlike
14
the 2018 Tariff, the 2020 Tariff defined “Stevedore” as “[t]he entity hired to unload the
vessel.” 2020 Tar. at ’418. Consistent with this definition, the 2020 Tariff defined
“Stevedoring” as “[t]he act of unloading or loading of ship’s cargo from the ship.” Id.
In the 2020 Tariff, GT took the position that it could block any users with overdue
balances from accessing the Terminal. The 2020 Tariff continued to reserve the right “to
deny anyone the use of a berth . . . until all past due accounts are paid.” Id. at ’425. It also
reserved the right “to deny anyone the use of . . . other Terminal Facilities until all past due
accounts are paid.” Id.
E. Buckeye Parent Acquires Magellan.
By agreement dated January 17, 2020, Buckeye Parent acquired 100% of the equity
ownership of the Company, and the Company changed its name from “Magellan Terminals
Holdings, L.P.” to “Buckeye PT Terminals, LP.” See JX 39; JX 66. The Company’s rights
under the Lease did not change, and the terminalling business also did not change.
Before acquiring the Company, Buckeye Parent knew about the dispute with GT
over the 2018 Usage Fees. Ingalls Tr. 17. Indeed, Buckeye Parent expressly assumed any
liability associated with the dispute. Id. at 46; JX 39 at ’897. Because of the potential
liability, Buckeye Parent and Magellan agreed to reduce the purchase price by $400,000.
Buckeye Parent also was aware that GT “had threatened . . . . to block the Port.” Ingalls
Tr. 47.
On January 20, 2020, GT learned that Buckeye was purchasing Magellan. Iannarelli
Tr. 516. On February 10, GT’s general counsel emailed Evan Hofmann, Buckeye Parent’s
general counsel, and stated that GT would “require payment in full of all outstanding
15
invoices with interest in the next ten calendar days.” JX 261 at 1. Hofmann responded that
“[a]s we discussed last week, due to antitrust laws and other competitive sensitivities,
Buckeye will not engage in substantive discussions with GT Wilmington USA, LLC
regarding contract or commercial matters prior to the closing of the Magellan-Buckeye
transaction.” Id.; see Ingalls Tr. 17. Hofmann confirmed that Buckeye Parent and the
Company “remain[ed] willing to address these matters promptly after closing, and are
hopeful a long-term commercial resolution can be reached.” JX 261 at 1.
F. The Dispute Escalates
On March 14, 2020, a week before Buckeye Parent completed its acquisition of the
Company, GT emailed Trent Bridges, Magellan’s General Counsel, and informed him that
GT was “reviewing adjustments to the terminal layout . . . . [that] may impact the current
access route that vehicles entering your facility traditionally utilized.” JX 235 at ’014. GT
revoked Magellan’s credit with the Port and demanded that Magellan maintain a deposit
of $260,000. GT also “rescind[ed] any and all verbal agreements to accrue but not bill
terminal usage fees.” Id. at ’015. An attachment listed the Company’s outstanding balance
as exceeding $1 million. Id. at ’016. GT set March 31 as the deadline for payment. Bridges
forwarded the communication to Hofmann. Id. at ‘011. GT’s letter did not state explicitly
that GT would block Port access absent payment. Iannarelli Tr. 524–25; see JX 235 at
’014–15.
No one responded to GT’s letter. Buckeye Parent’s representative testified that
Buckeye Parent was “focused on the task at hand of integrating and operating the terminals,
[and] the COVID-19 pandemic.” Ingalls Tr. 51–52.
16
By letter dated April 1, 2020, GT threatened to cut off the Company’s access to the
Port on April 6 if the outstanding balance was not paid. JX 46 at ’456. Until that point, the
Company had the impression that GT would meet with Buckeye Parent and the Company
to discuss a resolution.
In addition to threatening the Company, GT called or sent emails to the Company’s
customers and carriers to notify them of the impending blockade. The customers that GT
contacted included Wawa, Inc., one of the Company’s biggest customers. Wawa owns and
operates gas stations in the Mid-Atlantic region, and it relies on petroleum product stored
at the Tanks to supply its gas stations. Many of its stations need to be resupplied daily, so
any interruption in access to the Tanks posed a substantial risk to Wawa’s business. The
potential blockade therefore greatly concerned Wawa. See JX 182; JX 245; Ingalls Tr. 20.
In response to GT’s threat, the Company consulted with its legal team and
approached GT regarding a resolution. GT would not budge. The Company characterized
GT’s demands as a “ransom.” Ingalls Tr. 21–22.
On April 6, 2020, GT blocked the Company and its customers from using the
Disputed Roads to access the Tanks. The blockade took place during the early months of
the COVID-19 pandemic, and the Company regarded the blockade as threatening “the
critical petroleum infrastructure” in the Mid-Atlantic region. Id. at 23. GT’s general
counsel testified that GT had no regrets about the blockade. Iannarelli Tr. 567–68.
G. This Litigation
On the same day that GT blockaded the Disputed Roads, the Company filed this
lawsuit and sought a temporary restraining order to bar GT from “(1) threatening to deny
17
[the Company] and/or its customers from accessing the Port of Wilmington; (2) denying
[the Company] and/or its customers from accessing the Port of Wilmington; and (3)
communicating with [the Company’s] customers.” Dkt. 2 at 1. On April 6, 2020, the court
issued the temporary restraining order and scheduled the case for an expedited hearing on
an application for a preliminary injunction. Dkt. 7, 8.
By opinion dated May 20, 2020, the court granted the Company’s application for a
preliminary injunction. Buckeye P’rs, L.P. v. GT USA Wilm., LLC, 2020 WL 2551916 (Del.
Ch. May 20, 2020). The court found that the Company
ha[d] established a reasonable probability of success on the merits of its
claims that by blocking access to Sico Road, GT (i) breached the express
terms of the Lease, and (ii) breached the implicit terms of the Lease that are
supplied by the implied covenant of good faith and fair dealing.
Id. at *5. The court entered an injunction designed to maintain the status quo so that the
“issues [could] be addressed in due course, rather than by GT forcing [the Company] to
capitulate through the exercise of self-help.” Id. at *9.
The litigation proceeded to trial.
II. LEGAL ANALYSIS
There are two overarching issues in the case. The first is whether the Company owes
the Terminal Usage Fees. The second is whether the Company has a right to access the
Tanks via the Disputed Roads. The Company wins on both.
A. The Terminal Usage Fees
The initial dispute between the parties concerned whether the Company owes the
2018 and 2020 Usage Fees. The Company proved that it does not owe those fees.
18
1. Principles of Contract Interpretation
Principles of contract interpretation determine the outcome of this dispute. Delaware
law controls the issues of contract interpretation. Although GT implemented the tariffs in
accordance with federal regulations, this case does not require the court to interpret those
regulations or address any questions of federal law. See Va. Int’l Terminals v. Va. Elec. &
Power Co., 21 F. Supp. 3d 599, 605 (E.D. Va. 2014). Both of the tariffs state that Delaware
law governs their terms. See 2018 Tar. at ’366 (“This Tariff and any disputes hereunder
shall be governed by, interpreted and construed under Delaware law, without regard to the
conflict of laws principles, and the parties agree to submit to the exclusive jurisdiction of
the courts of Delaware.”); 2020 Tar. at ’416 (same). The Lease also specifies that Delaware
law governs its terms. Lease § 27(h).
When interpreting a contract, Delaware courts “give words their plain meaning
unless it appears that the parties intended a special meaning.” Norton v. K-Sea Transp. P’rs
L.P., 67 A.3d 354, 360 (Del. 2013). “If a writing is plain and clear on its face, i.e., its
language conveys an unmistakable meaning, the writing itself is the sole source for gaining
an understanding of intent.” City Investing Co. Liquidating Tr. v. Cont’l Cas. Co., 624 A.2d
1191, 1198 (Del. 1993). “The true test is not what the parties to the contract intended it to
mean, but what a reasonable person in the position of the parties would have thought it
meant.” Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196
(Del. 1992). “And, in the case of an undefined term, the interpreting court may consult the
dictionary, if that is deemed useful, when determining the term’s plain meaning.” Wenske
v. Blue Bell Creameries, Inc., 2018 WL 3337531, at *10 (Del. Ch. July 6, 2018).
19
“Contract language is not ambiguous merely because the parties dispute what it
means. To be ambiguous, a disputed contract term must be fairly or reasonably susceptible
to more than one meaning.” Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del.
2012) (footnote omitted). “Even if the Court determines that one party’s reading of the
contract is more reasonable or natural, that does not preclude a finding of ambiguity.” AM
Gen. Hldgs. LLC v. Renco Gp., Inc., 2017 WL 2167193, at *2 n.8 (Del. Ch. May 17, 2017)
(cleaned up). Where parties have engaged in “bilateral negotiations,” and the contract that
resulted from those negotiations contains an ambiguous term, then courts may look to
extrinsic evidence to resolve the ambiguity. SI Mgmt. L.P. v. Wininger, 707 A.2d 37, 43
(Del. 1998).
In some circumstances, however, extrinsic evidence is unhelpful. “If the contractual
language at issue is ambiguous and if [one party] did not negotiate for the agreement’s
terms, [Delaware courts] apply the contra proferentem principle and construe the
ambiguous terms against the drafter.” Norton, 67 A.3d at 360. If “the articulation of
contract terms . . . appears to have been entirely within the control of one party . . . that
party bears full responsibility for the effect of those terms.” SI Mgmt., 707 A.2d at 44. This
is because “[a]s the entity in control of the process of articulating the terms of the
[agreements], it [is] incumbent on the [drafter] to make their terms clear.” Juul Labs, Inc.
v. Grove, 238 A.3d 904, 911 (Del. Ch. 2020) (cleaned up).
20
GT drafted and issued the tariffs. The Company had no role in drafting them, and
the terms were not negotiated.5 Under applicable federal regulation, the Company is subject
to the tariffs even “without proof that [it] has actual knowledge of the provisions of the
applicable terminal schedule.” See 46 C.F.R. § 525.2(a)(2).
Under federal regulation, a tariff is enforceable “by an appropriate court as an
implied contract between the marine terminal operator and the party receiving the services
rendered by the marine terminal operator.” Id. Because the tariffs create an implied contract
that was not subject to negotiation, any ambiguity is resolved against GT under the
principle of contra proferentem. See Ninivaggi v. Univ. of Del., 2021 WL 3709765, at *5
(D. Del. Aug. 20, 2021). If the tariffs are ambiguous, then the Company prevails. GT cannot
use extrinsic evidence to show what it really meant, thereby rewriting the tariffs in its favor.
2. The 2018 Usage Fee
The Company advances two arguments as to why it has no obligation to pay the
2018 Usage Fee. Both succeed.
First, the Company points out that the 2018 Usage Fee only applies to a “Stevedore.”
The Company proved that it was not a Stevedore as defined in the 2018 Tariff. Thus, the
Company was not subject to the 2018 Usage Fee.
5
Iannarelli Tr. 463, 478 (GT’s general counsel describing himself as “the primary
drafter” of the tariffs); 2018 Tar. at ’363 (stating that the 2018 Tariff was “[i]ssued on
December 1, 2018 BY: GT USA Wilmington, LLC); 2020 Tar. at ’413 (stating that the
2020 Tariff was “[i]ssued on January 1, 2020 BY: GT USA Wilmington, LLC”); Iannarelli
Dep. 135–36 (discussing GT’s thought process in changing definitions in the 2020 Tariff).
21
Second, the Company contends that the rent it pays under the Lease entitles the
Company to use the Terminal as it always has, without having to pay any additional
amounts. The Company proved that GT did not provide any incremental services to the
Company in exchange for the 2018 Usage Fee, and the Company did not engage in any
new activities that would warrant charging a fee. The Lease is therefore an existing contract
that specifically provides compensation for the Company’s longstanding use of the
Terminal. The contractually agreed-upon rent therefore takes precedence and precludes the
imposition of the 2018 Usage Fee.
a. Whether The 2018 Usage Fee Applies To The Company
The Company does not owe the 2018 Usage Fee because the Company is not a
“Stevedore” as the 2018 Tariff defined that term. Under the 2018 Tariff, the 2018 Usage
Fee “is a charge, separate from Wharfage, against the Stevedore for fees related to the
public private partnership agreement.” 2018 Tar. at ’369. The 2018 Tariff capitalized
“Stevedore” as if it were a defined term, but the 2018 Tariff did not contain a definition of
“Stevedore.” The 2018 Tariff did define “Stevedoring” as “the physical handling of
Container(s) or Cargo between the Vessel and the CY.” Id. The 2018 Tariff defined “CY”
as the “Container Yard within the boundaries of respective Terminal.” Id. at ’367.
Because the 2018 Tariff defined “Stevedoring,” that term provides the best insight
into the meaning of “Stevedore” for purposes of the 2018 Usage Fee. See Lehman Brothers
Bank, FSB v. State Bank Comm’r, 937 A.2d 95, 104 (Del. 2007) (looking to the defined
term “located” to interpret the undefined terms “principal office” and “headquarter[s]”).
22
Doing so makes sense grammatically because “stevedoring” is simply a verbal form of the
noun “stevedore.”6
Based on the definition of “Stevedoring,” the 2018 Tariff defined a Stevedore as
someone who engaged in “the physical handling of Container(s) or Cargo between the
Vessel and the CY,” with the CY defined as the “Container Yard within the boundaries of
respective Terminal.” 2018 Tar. at ’367, ’369. The 2018 Tariff defined the “Terminal” as
“the Marine Terminal facility, land, pier, wharves, bulkhead, docks and structures,
including warehouses operated by the Port of Wilmington, an operation of GT USA
Wilmington, LLC.” Id. at ’369. The plain language of this definition refers to the Container
Yard within the Terminal. It does not refer to a separate location outside of the Terminal,
like the Tanks. See Iannarelli Tr. 556–57; DiNapoli Tr. 714.
The Company did not engage in in the “physical handling of Container(s) or Cargo
between the Vessel and the [Container Yard].” See 2018 Tar. at ’367, ’369. The Company
did not engage in the “physical handling of Container(s) or Cargo.” And the Company did
not engage in the handling of cargo “between the Vessel and the CY.”
i. “Physical Handling”
The Company proved that it did not engage in the “physical handling of Container(s)
or Cargo.” Eric Klees has been an employee at the Company or its predecessors for over
6
Compare Stevedore (n.), Webster’s Ninth New Collegiate Dictionary (9th ed.
1990) (“[O]ne who works at or is responsible for loading and unloading ships in port.”),
with id., Stevedore (vb.) (“[T]o handle (cargo) as a stevedore; also : to load or unload cargo
of (a ship) in port ~ vi: to work as a stevedore.”).
23
thirty-three years. Throughout this career, Klees’ “job description has been the same.”
Klees Tr. 87. One of his roles is a “dock person in charge” (the “Dock Person”). In that
role, Klees “stands watch once the vessel comes in and is connected and transfer of product
begins.” Id.The process over which Klees “stands watch” unfolds as follows. When a vessel
arrives, the Dock Person helps secure it to the dock. A vessel with a capacity of fewer than
50,000 barrels provides its own lines to the Dock Person, who uses them to tie the vessel
to the dock. A vessel with a capacity of greater than 50,000 barrels hires an independent
contractor to secure the vessel to the dock. Id. at 92.
Next, an inspector boards the vessel and runs safety calculations. While this is
happening, the Dock Person begins the process of connecting a hose between the vessel
and the dock. If the vessel has a capacity of fewer than 50,000 barrels, the tankerman on
board the vessel uses its crane to pick up its hose and lower it to the dock, where the Dock
Person connects it to the manifold. A vessel with a capacity of greater than 50,000 barrels
uses its crane to pick up a hose from the dock, then secures it on board the vessel. Once the
hose is secured, the vessel and the Dock Person exchange paperwork, fill out Coast Guard
forms, and review the procedures for discharging product. Id. at 93–95.
To start the discharge of the product, the tankerman, the Dock Person, and the
terminal operator each open the appropriate valves. The tankerman controls the valves that
connect the hose to the vessel. The Dock Person opens the valve that connects the hose to
the manifold. The terminal operator opens valves that determine where the product goes as
it runs through the manifold. After an initial “line check” to ensure that there are no leaks,
24
the Dock Person instructs the tankerman to discharge product. The vessel then uses its own
pump located on the vessel to move the product through the hose. Id. at 96–100.
If the product is bound for the Tanks, then it travels through the manifold into pipes that
take it approximately 7/8 of a mile to its designated storage location.
During this process, the Dock Person never physically handles any product. Because
the Dock Person never engages in the “physical handling of Container(s) or Cargo,” the
Company was not a Stevedore under the 2018 Tariff and did not owe the 2018 Usage Fee.
ii. “Between The Vessel And The CY”
The Company also proved that it did not handle containers or cargo “between the
Vessel and the CY.” As noted, the 2018 Tariff defined the “CY” as the “Container Yard
within the boundaries of respective Terminal.” 2018 Tar. at ’367. The 2018 Tariff defines
“Terminal” as the “Port of Wilmington, an operation of GT USA Wilmington, LLC.” Id.
at ’369. The Terminal does not include the Tanks. See Iannarelli Tr. 556–57; DiNapoli Tr.
714.
The Company did not take containers or cargo to the Container Yard in the
Terminal. As described above, the Dock Person’s principal task is to connect the hose to
the manifold. Once the vessel begins offloading product, it flows to the Tanks. No one
from the Company ever takes product to the Container Yard. See Klees Tr. 109 (Q: “When
liquid petroleum is being discharged from a vessel, does Buckeye ever store that liquid
petroleum in the [C]ontainer [Y]ard?” A: “No.”).
GT argues halfheartedly that the phrase “respective Terminal” means there could be
multiple terminals. GT then suggests that the dock could be viewed as the Company’s
25
“respective” terminal and the Tanks as its container yard. That is a preposterous reading.
There is only one Terminal, and only one Container Yard.
It is true that the definition of “CY” refers to the “respective Terminal,” and perhaps
there are other tariffs that govern multiple terminals. The 2018 Tariff governs only one
Terminal. 2018 Tar. at ’369. The most logical explanation is that “respective” is a stray
word, perhaps from a precedent tariff that governed multiple terminals. Although a court
will strive to give meaning to all of the words in a document, it need not contort the
language to do so.
b. Whether The Lease Covered The Services For Which GT Would
Charge The 2018 Usage Fee
The Company also demonstrated that the rent it pays under the Lease already covers
the Company’s longstanding use of the Terminal. GT cannot raise the Company’s rent by
imposing new fees for what the Company always has been doing. GT could charge fees for
new services, and GT could impose fees if the Company began using the Terminal in
different ways. But GT cannot rewrite the Lease by imposing fees for uses that the Lease
already covers.
Under the federal regulations governing a tariff, the charges in a tariff are generally
enforceable as an implied contract, but “[i]f the marine terminal operator has an actual
contract with a party covering the services rendered by the marine terminal operator to that
party, an existing terminal schedule covering those same services shall not be enforceable
as an implied contract.” 46 C.F.R. § 525.2(a)(3) (the “Actual Contract Test”). GT attempts
to argue that the Lease is not an actual contract, but it plainly is.
26
The Lease is a binding agreement between the terminal operator (GT) and the party
using the Terminal (the Company). Under the Actual Contract Test, the label of the contract
does not matter. The actual contract could be a lease, an agreement for a specific type of
services, or some other species of agreement. What matters is whether (1) there is an actual
contract, separate from the tariff, and (2) the contract covers the same services for which
the marine terminal operator otherwise would charge under the tariff.
The Lease itself provides for the same rule. Section 27(e) of the Lease states that
“[e]xcept as otherwise provided herein, all terms and conditions of the Port of Wilmington,
Delaware Terminal Tariff . . . will apply to this Lease.” Lease § 27(e). That provision makes
clear that the starting point is the Lease, which reflects the parties’ specific agreement. If
the parties have not agreed upon a specific rate for a particular service, then the terminal
operator can charge the tariff rate.
The parties recognized by their conduct that a lease could cover the services that GT
as the terminal operator otherwise would charge for under a tariff. After the dispute
between GT and the Company arose, the parties negotiated the terms of a potential
settlement. The operative document took the form of an amended Lease that would (i)
increase and restructure the Company’s overall rent while (ii) making clear that the
Company would not be charged any separate or additional fees under a tariff. See Iannarelli
Tr. 503–06; JX 233 at ’452 (September 2019 draft amendment agreement).
The real question is therefore whether the rent payment in the Lease covers the
“same services” for which GT was charging the 2018 Usage Fee. The legalistic framing of
the Actual Contract Test and the esoteric nature of the Company’s terminalling business
27
makes the issue seem more complicated than it really is. A hypothetical involving more
familiar businesses helps to simplify matters
Assume a mall owner leases space to a shoe store. They agree on a base amount of
rent per month. The mall owner worries about high traffic causing additional wear and tear
on the premises, so the tenant agrees to pay additional rent based on sales above a minimum
threshold (on the assumption that greater sales is a fair proxy for more customers in the
store).
Assume that the mall owner offers additional services that tenants can use, such as
a location where businesses can store inventory for long periods, a business suite with a
copier, and a gym. Further assume that the mall owner posts a schedule of the fees for those
services that any tenant can pay a la carte. Some tenants know they will use those services,
so they bargain for them in their leases. If the lease provides a rate for a service, then
obviously the tenant pays the rate in the lease, not the a la carte rate. That is the basic idea
behind the Actual Contract Test.
But the Actual Contract Test does not stop with a specifically identified fee for a
specifically identified service. Some services are necessarily covered by the basic business
arrangement in the lease, and the mall owner could not charge separately for them. Assume
that the mall owner decides to increase revenue by imposing a “Mall Usage Fee” on its
tenants calculated as a percentage of sales. The mall owner argues that the costs of
maintaining the property have increased, that the fee is necessary to compensate the owner
for the use of the premises, and that a sales-based fee is fair because it is an effective proxy
for use.
28
In our hypothetical, the Mall Usage Fee would run afoul of the Actual Contract Test
for two reasons. First, the whole point of running a shoe store is to have customers come
into the business and buy shoes. A foundational premise of paying rent for space for a shoe
store is that customers will come to the mall, enter the store, and buy shoes. The rent that
the store owner pays already compensates the mall owner for that component of their
business relationship. The mall owner cannot charge an additional Mall Usage Fee for that
component because the shoe store would not receive any consideration for the fee. The
mall owner would be double-charging for the same services it is already providing under
the lease. Second, in our hypothetical, the lease makes the duplicative nature of the Mall
Usage Fee particularly clear, because the parties agreed to a sales-based formula for
additional rent that would act as a proxy for traffic. There is thus already a specific
component of rent that addresses the issue that the mall owner claims to be addressing with
the Mall Usage Fee. In our hypothetical, the mall owner could not impose the Mall Usage
Fee.
This analysis does not mean that the mall owner cannot charge new fees. The mall
owner might provide new services and charge fees for them. For example, the mall owner
might invest in ultrafast wifi, make it available to all tenants, and post a fee for using the
wifi (the “Wifi Fee”). If the shoe store’s lease does not already provide for ultrafast wifi
(or perhaps wifi plus upgrades), then the Wifi Fee would not contravene the lease. To have
access to the wifi, the tenant would have to pay the Wifi Fee (or enter into a separate
arrangement with the mall owner).
29
The mall owner might even charge fees that would be calculated on the same basis
as rent. Assume that the mall owner installs ultrafast wifi and determines the fairest means
would be to allocate the cost based on sales. The fact that the shoe store’s lease already
contemplates variable rent based on sales does not preclude the Wifi Fee. The rental
component is for wear and tear on the store. The new fee is for the ultrafast wifi. Once
again, to have access to the ultrafast wifi, the tenant would have to pay the Wifi Fee (or
enter into a separate arrangement with the mall owner).
It also does not matter for the analysis what the mall owner calls the fee. The name
of the fee provides some evidence of the purpose of the fee, but the real question is what
the mall owner provides in exchange for the fee.
Finally, it does not matter whether the mall owner charges the fees, or whether the
mall owner contracts with a manager to run the mall and gives the manager the authority
to charge fees. In the real world, the mall owner would pay a manager, but to make the
hypothetical closer to our case, assume the manager pays the mall owner a fee for the right
to manage the mall. In return, the manager has the freedom to charge fees for services at
the mall. Any fees that the manager imposed would be subject to the same analysis: Does
the fee cover something that the shoe store is already paying for under its lease (or another
agreement)? The manager could impose the Wifi Fee. The manager could not impose the
Mall Usage Fee if that fee simply charged the shoe store an additional amount for engaging
in the same activities and using the same services contemplated by the lease.
In this case, the question is whether GT provided a service in exchange for the 2018
Usage Fee that was different from the bundle of consideration already contemplated by the
30
Lease. If the Company’s usage of the Terminal and associated services were already
contemplated by the Lease, then GT could not impose a usage fee for those same services.
If the services were not the same, and if the Company used the services, then GT could
impose the fee, because the Company was not already paying for those services under a
specific contractual arrangement.
Against this backdrop, GT maintains that the parties’ negotiations over the potential
amendment to the Lease that would resolve their dispute demonstrate that the Lease did
not already address the services covered by the 2018 Usage Fee, but that inference does
not follow. GT and the Company were attempting to negotiate a resolution of their dispute
over the Terminal Usage Fee; neither side waived its position by attempting to negotiate.
Cf. Brown v. Hous. Ventures, L.L.C., 2003 WL 136181, at *5 (Del. Ch. Jan. 3, 2003) (“I
do not view the effort to negotiate a resolution as a waiver of any claim to [easement] rights
arising by prescription. It is prudent to resolve through negotiation and documentation that
which might otherwise give rise to, as it did here, litigation.” (footnote omitted)).
For its part, the Company argues that the Volume-Based Fee must preempt the 2018
Usage Fee because both are calculated based on the amount of product that crosses the
dock. As the hypothetical involving the shoe store illustrates, the method of calculating the
fee is not dispositive, and the Company’s conduct demonstrates that fact. Since 2009, the
Company has paid a security fee that is also calculated based on the amount of product that
crosses the dock. See 2018 Tar. at ’405–06; JX 150 at ’972. The Company accepts that fee
because it compensates the terminal operator for providing additional security services that
were not already contemplated by the Lease.
31
The focus of the inquiry instead is on what services GT provided in exchange for
the 2018 Usage Fee. Assuming for the sake of argument that the Company was acting as a
Stevedore, the Company was not responsible for the 2018 Usage Fee because GT did not
provide any consideration in return for the fee beyond the exchange of consideration
already covered in the Lease. GT expressly described the 2018 Usage Fee as a charge “for
fees related to the public private partnership agreement.” 2018 Tar. at ’369. The plain
language of this definition makes clear that GT sought to pass along the costs of the
concession fee it agreed to pay to Diamond State, plus some margin for profit, by imposing
the fee on the Port’s customers.
Although the plain language is dispositive, the extrinsic evidence confirms that the
2018 Usage Fee was simply a way for GT to pass through the amounts it had agreed to pay
to Diamond State for the concession fee, plus some margin for profit. GT’s general counsel
explained that GT “would not have implemented a terminal usage fee charge but for the
concession fee.” Iannarelli Tr. 463; see also id. at 463–64 (Q: “So the sole reason that GT
even imposes and drafted the terminal usage fee is to cover the costs of paying the
concession fee to the State of Delaware; right?” A: “Yes.”).
GT did not provide any incremental services in exchange for the 2018 Usage Fee,
and the Company did not engage in any additional activities that would have warranted
charging the 2018 Usage Fee. The Company continued conducting its business precisely
as before, based on the bundle of consideration exchanged in the Lease. By imposing the
2018 Usage Fee, GT sought to charge the Company for rights it already possessed under
the Lease.
32
Under the Actual Contract Test, GT could not charge the Company a fee for the
rights it already possessed under the Lease. The Company already paid rent in exchange
for the right to use the dock and the pipes running under the Terminal as part of its business.
That does not mean that GT could not impose specific fees for services that were not
covered by the Lease. What GT could not do was impose a generic fee for services already
covered by the Lease.
The 2018 Usage Fee was not enforceable as an implied contract because it fails the
Actual Contract Test. If the Company had been acting as a Stevedore under the 2018 Tariff,
it still would not have been subject to the 2018 Usage Fee.
3. The 2020 Usage Fee
The Company raises the same challenges to the 2020 Usage Fee. This decision must
analyze the 2020 Usage Fee separately because the 2020 Tariff changed the relevant
language.
Most notably, the 2020 Tariff redefined the “Terminal Usage Fee” as “[a] separate
charge assessed against the Stevedore.” 2020 Tar. at ’418. GT thus eliminated the reference
in the 2018 Tariff that plainly associated the charge with “fees related to the public private
partnership.” See 2018 Tar. at ’369.
The 2020 Tariff also changed the definition of “Stevedoring.” In place of the
reference to moving cargo to and from the Container Yard, the 2020 Tariff defined the term
more broadly as “[t]he act of unloading or loading of ship’s cargo from the ship.” 2020
Tar. at ’418.
33
Finally, the 2020 Tariff introduced a new definition of “Stevedore.” It defined that
term as “[t]he entity hired to load or unload the vessel.” Id.Despite these differences, the result is the same. The Company proved it was not a
“Stevedore” and hence not subject to the 2020 Usage Fee. Assuming that the Company
was properly subject to the 2020 Usage Fee, the Company proved that GT could not charge
the 2020 Usage Fee because the Company was already paying for all of the services it used
in its business under the Lease.
a. Whether The 2020 Usage Fee Applies To The Company
The Company first argues that it was not subject to the 2020 Usage Fee because it
did not act as a “Stevedore,” this time as defined under the 2020 Tariff. Whether the
Company met the definition of Stevedore turns on whether the Company was “hired to
load or unload” a vessel. See 2020 Tar. at ’418. The Company maintains that it did not
“load or unload” a vessel. GT argues that the Company did. The Company and GT have
each advanced a reasonable interpretation, causing the 2020 Usage Fee to be ambiguous.
Under the doctrine of contra proferentem, ambiguous language is interpreted against GT
as drafter. The 2020 Usage Fee therefore does not apply to the Company.
The Company’s argument begins with the dictionary definitions of “load” and
“unload.” “Load” is “to put something to be carried into or upon . . . [to load a wagon with
wheat]” or “to put into or upon a carrier [to load coal into a truck].” Load, Webster’s New
World Dictionary (2d College Ed. 1986). “Unload” is “to remove or take off (a load, cargo,
etc.)” or “to take a load or cargo from.” Id., Unload. Both definitions connote activity. One
cannot passively “load” or “unload.”
34
Against this definitional backdrop, the Company argues that the Dock Person did
not “load” or “unload” vessels. The Company relies on Klees’ testimony about what the
Dock Person does when a vessel arrives. Klees testified credibly that he acts as a
coordinator. The only step that the Dock Person performs is to open a valve. Klees
explained that the person who actually determines whether the product leaves the vessel is
the tankerman, because the tankerman is the operator of the pump that moves the product.
The pump is located on the vessel and belongs to the vessel; no one from the Company has
“any control over running that pump.” Klees Tr. 100. The product is pumped from the
vessel to wherever the Company wants it to go, but it is the vessel that unloads the product
by pumping it out. Id. at 119. By opening the valve, the Dock Person is “just providing a
means for product to be moved by the pump.” Id. at 121–22; see id. at 122 (“[A]s the dock
person in charge, I’m not moving any of the oil. I’m providing a means for the tankermen
to push the product.”). Under the Company’s reading, the person that loads or unloads the
vessel is the person who causes the product to run through the hose and the pipelines. That
person is the tankerman who controls the pump. Id. at 119.
GT responds that this interpretation is overly formalistic. GT looks at the operation
as a whole and sees a vessel that starts out full of product and ends up empty. GT argues
with considerable force that however you slice it, that process constitutes the unloading of
a vessel. A team of people make it happen. That team consists of the tankerman, the
terminal operator, and the Dock Person. All three participate in the process. All three are
necessary. GT concludes that the Dock Person is participating in the unloading of a vessel.
See DiNapoli Tr. 708.
35
Both interpretations are reasonable, resulting in ambiguity. In a bilateral contract,
the court would look to extrinsic evidence. Here, the doctrine of contra proferentem is
dispositive. Because the definition was ambiguous, the Company was not subject to the
2020 Usage Fee.
If the court looked to extrinsic evidence, the Company’s interpretation would still
prevail. “[E]xtrinsic evidence may include overt statements and acts of the parties, the
business context, prior dealings between the parties, and business custom and usage in the
industry.” United Rentals, Inc. v. RAM Hldgs., Inc., 937 A.2d 810, 834–35 (Del. Ch. 2007)
(cleaned up). The extrinsic evidence is mixed, but three pieces of evidence are the most
probative and favor the Company.
First, the experts agreed that the term “stevedore” is most commonly associated with
dry cargo operations. Van Hemmen Tr. 372–73; DiNapoli Tr. 709, 730, 736. The Company
does not engage in dry cargo operations. The Company engages in bulk-liquid petroleum
operations.
Second, GT’s general counsel testified that when revising the 2020 Tariff, he used
Google to find a definition of “Stevedore.” Iannarelli Dep. 135. The Company’s expert
conducted Google searches and could not locate any images involving liquid bulk
operations. All of the images depicted dry cargo operations. Van Hemmen Tr. 382.
Third, GT’s expert agreed that “stevedore” and “longshoreman” are interchangeable
terms. DiNapoli Tr. 732. He agreed that the Company does not employ longshoremen. Id.Indeed, to act as a stevedore at the Port requires an agreement with the International
Longshoremen Association. Iannarelli Dep. 79; Van Hemmen Tr. 395. The Company has
36
no such agreement, and no one who serves as Dock Person is a member of the union. Klees
Tr. 109.
In response, GT made much of the fact that Murphy Marine, a company hired by
Citrosuco North America, Inc. (“Citrosuco”) to offload bulk fruit juices, paid the 2020
Usage Fee and thus presumably was a stevedore. See Iannarelli Tr. 468. The actions of
Murphy Marine are relevant, but not dispositive. Murphy Marine could simply have made
a business decision not to fight about the fee. The evidence also did not provide a sufficient
basis for the court to compare Citrosuco’s process with the Company’s. GT’s general
counsel claimed that they were similar, but a cursory description from a lawyer was not
sufficiently persuasive. See Iannarelli Tr. 467–68. GT also introduced into evidence a
“Stevedoring and Terminal Services Agreement” with Citrosuco dated September 25,
2019. JX 168 at ’734. GT entered this agreement after the dispute with the Company arose
and had an incentive to style the agreement to provide support for its position in this case.
What matters for present purposes is not the language in GT’s agreement with Citrosuco,
but the language in the 2020 Tariff.
The Company thus proved that it did not act as a Stevedore for purposes of the 2020
Tariff. The Company therefore was not subject to the 2020 Usage Fee.
b. Whether The Lease Covered The Services For Which GT
Charged The 2020 Usage Fee
Assuming for the sake of argument that the Company was subject to the 2020 Usage
Fee, the Company again argues that the Lease already covers its use of the Terminal for its
longstanding terminalling business. The Actual Contract Test again guides the analysis,
37
and it leads to the same result. Because the Lease already covered the usage and services
involved in the Company’s traditional terminalling business, GT could not impose the 2020
Usage Fee.
The proper inquiry again is to compare the services that the Company ostensibly
received in exchange for the 2020 Usage Fee with the bundle of consideration that the
parties agreed to in the Lease. GT did not demonstrate that the 2020 Usage Fee covered
any additional or different services. Although GT used different language, GT’s purpose
in imposing the 2020 Usage Fee was identical to its purpose for imposing the 2018 Usage
Fee. GT sought to recover the payments it made to Diamond State, plus make an additional
profit.
As discussed in the preceding section, GT styled the 2020 Usage Fee as
compensation to GT from those using the Terminal for the loading and unloading of cargo.
The Lease plainly covers that. The stated purpose of the Lease is for “operating certain
docking facilities for the transportation and storage of oil, petroleum products,
hydrocarbons and their derivatives and for the installation and operation of a mooring
dolphin with catwalks and utilities.” Lease at ’754. The Lease later states that “[t]he
Premises may be used and occupied for the purpose of operating certain docking facilities
for the purpose of transportation and storage of oil, petroleum products, hydrocarbons and
their derivatives.” Id. § 7(b). The Lease also confirms that the “Premises” include not only
1,160 linear feet of docking space, but also the permanent structures that create the dock,
as well as the equipment necessary for ships to use the dock to load and unload petroleum
products, such as “breasting dolphins, mooring dolphins, platform, dock deck, catwalks,
38
sea wall, and spill pump collection system for pier and ship discharge.” Id. § 2. The Lease
later acknowledges that the Company maintained movable structures that it utilized “to
facilitate docking operations, including but not limited to, loading arms, spill pans, grating,
covers, pre-fab type structures as a dock house, valves, piping, supports and other
miscellaneous equipment and machinery.” Id.
The Lease thus recognizes that the Company rents the Premises to conduct its
terminalling operation, and the Company pays the rent specified in the Lease for the
purpose of securing the Premises for its terminalling operation. That purpose included
transferring petroleum product to or from a vessel in the manner described above.
Given the terms of the Lease, GT could not impose a usage fee on the Company that
charged an incremental amount for the Company to do what it was already doing under the
Lease. If the Company sought to use other aspects of the Terminal in a manner not already
covered by the Lease, then GT could charge a fee for the Company’s additional use. The
2020 Usage Fee is not enforceable as an implied contract because the Lease covers the
same services as the 2020 Usage Fee.
B. The Right To Use The Disputed Roads
After the dispute emerged over the Company’s obligation to pay the Terminal Usage
Fees, GT engaged in self-help by preventing the Company and its customers from using
the Disputed Roads. The second major issue in this case is whether the Company has any
right to use the Disputed Roads.
The Company advanced multiple theories to support its right to use the Disputed
Roads. The Company prevailed on only one: Under the implied covenant of good faith and
39
fair dealing that inheres in the Lease, the Company has a contractual right to use the
Disputed Roads to access the Tanks in connection with its terminalling business.
The Company advanced four other theories in an effort to establish an access right.
They are:
• That the Disputed Roads are public roads.
• That the Company has an express easement to use the Disputed Roads.
• That the Company has a prescriptive easement to use the Disputed Roads.
• That the Company has an easement by estoppel to use the Disputed Roads.
This decision addresses those theories because each would provide the Company
with a more durable and more expansive right of access than the implied term in the Lease.
The holding that the Lease incorporates an implied right for the Company to use the
Disputed Roads to access the Tanks in connection with its terminalling business therefore
does not obviate the need to consider the Company’s other theories. Instead, those theories
fail on their own merits.7
7
The Company’s other theories seek to adjudicate the status of ownership rights in
the Port, either by declaring that the Disputed Roads are public roads, or by finding that
the Port is burdened by an easement. Diamond State owns the Port, and Diamond State is
not a party to the case. Because the Company’s arguments fail for other reasons, the court
need not consider whether it could adjudicate those ownership issues in Diamond State’s
absence. There are obvious problems with doing so. The Company has advanced
arguments in response based on GT’s rights under the Concession Agreement, the fact that
GT and Diamond State are in privity, and the fact that Diamond State had ample notice of
this proceeding and did not intervene. The Company also suggested that the court could
limit any ruling to an in personam determination binding only on GT. The court expresses
no view on those issues.
40
1. A Live And Justiciable Dispute Continues To Exist.
As a threshold matter, GT contends that there is “no practical need” to address the
access issue because the underlying dispute between the parties involved whether the
Company owed the Terminal Usage Fees. Dkt. 214 at 26. GT says it only blocked the
Company’s access because of the unpaid fees, so resolving the fee issue renders the access
issue moot. That is not the case. There remains an actual and ripe controversy between the
parties over the Company’s right to use the Disputed Roads. The issuance of a declaratory
judgment is warranted to resolve that dispute.
“Delaware courts are statutorily authorized to entertain an action for a declaratory
judgment, provided that an ‘actual controversy’ exists between the parties.” XL Specialty
Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1216–17 (Del. 2014) (footnotes omitted).
The Delaware Supreme Court has established a four-part test for determining whether an
actual controversy exists:
(1) It must be a controversy involving the rights or other legal relations of
the party seeking de[c]laratory relief; (2) it must be a controversy in which
the claim of right or other legal interest is asserted against one who has an
interest in contesting the claim; (3) the controversy must be between parties
whose interests are real and adverse; (4) the issue involved in the controversy
must be ripe for judicial determination.
Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662–63 (Del. 1973). The
Company satisfies all four prerequisites.
The dispute over the Company’s right to use the Disputed Roads easily satisfies
elements one, two, and three, and GT does not appear to contest them. First, the Company
seeks a declaratory judgment that it has the right to use the Disputed Roads to access the
41
Tanks. GT maintains that the Company lacks any right to use the Disputed Roads to access
the Tanks and only may do so with GT’s permission, which GT can grant or withhold in
its sole discretion. Second, the Company is asserting its rights against a party with an
interest in contesting the claim. Under the Concession Agreement, GT operates the Port on
behalf of Diamond State, and GT wants to maintain its ability to restrict the Company’s
use of the Disputed Roads if, for example, there is a future dispute with the Company.
Third, the Company and GT’s interests are real and adverse. The dispute about access
rights is not manufactured. It arose when GT blocked the Company’s access, and GT
maintains that if it wants, it can block the Company’s access again. In the 2020 Tariff, GT
made this assertion explicit by reserving the right “to deny anyone the use of a berth or
other Terminal Facilities until all past due accounts are paid.” 2020 Tar. at ’425.8
8
The 2020 Tariff broadly defines “Terminal Facilities” as:
One or more structures comprising a terminal unit, and include, but are not
limited to wharves, warehouses, covered and/or open storage spaces, cold
storage warehouses, and/or bulk cargo loading and/or unloading structures,
landings, and receiving stations, used for the transmission, care, and
convenience of cargo and the interchange of same between land and water
carriers or between two water carriers.
Id. at ’418. In drafting the 2020 Tariff, GT notably expanded the language of the 2018
Tariff, which only reserved the right to “deny anyone the use of a berth until all past due
accounts are paid.” 2018 Tar. at ’379.
The most recent tariff, effective January 1, 2022, contains a reservation of rights
identical to the 2020 Tariff. See Port of Wilmington Terminal Tariff, GT USA Wilmington
LLC 14 (issued Dec. 1, 2021, effective Jan. 1, 2022), available at
https://www.portofwilmington.com/tariff.html (“The Terminal Operator reserves the
42
As to the fourth element, “[a] case is ripe for judicial review when the dispute has
matured to the point where the plaintiff has suffered or will imminently suffer an injury.”
Town of Cheswold v. Cent. Del. Bus. Park, 188 A.3d 810, 816 (Del. 2018). “A ripeness
determination requires a common sense assessment of whether the interests of the party
seeking immediate relief outweigh the concerns of the court in postponing review until the
question arises in some more concrete and final form.” XL Specialty, 93 A.3d at 1217(cleaned up). An actual controversy is ripe if the court is “not only . . . convinced that
litigation sooner or later appears to be unavoidable, but also that the material facts are static
and that the rights of the parties are presently defined rather than future or contingent.”
Stroud v. Milliken Enters., Inc., 552 A.2d 476, 481 (Del. 1989) (cleaned up).
Under a commonsense assessment, the dispute over access rights needs to be
resolved. GT’s assertion of its position has already inflicted injury on the Company when
GT blocked the Company from using the Disputed Roads to access the Tanks. That injury
would have metastasized absent this court’s issuance of injunctive relief. Without a judicial
resolution, the Company could suffer a similar injury at any point, because GT claims that
it has the ability to cut off the Company’s access at any time. The material facts underlying
the dispute are static, and the relative rights of the parties are presently defined. The access
issue is therefore ripe for determination. And resolving the dispute over the Terminal Usage
Fees did not render the access issue moot. Whether the Company has an enforceable access
rights to deny anyone the use of a berth or other Terminal Facilities until all past due
accounts are paid.”).
43
right is a question that exists independent of whether the Company owed the Terminal
Usage Fees.
This case therefore satisfies all four elements of the actual controversy test. The
issue of whether the Company has an access right is the proper subject of a declaratory
judgment.
2. The Implied Covenant Of Good Faith And Fair Dealing
The Company proved that under the implied covenant of good faith and fair dealing
that inheres in the Lease, the Company has the right to use the Disputed Roads in
connection with its terminalling business. The court will issue a declaratory judgment to
that effect.
The Delaware Supreme Court has summarized the implied covenant concisely as
follows:
The implied covenant is inherent in all contracts and is used to infer contract
terms to handle developments or contractual gaps that . . . neither party
anticipated. It applies when the party asserting the implied covenant proves
that the other party has acted arbitrarily or unreasonably, thereby frustrating
the fruits of the bargain that the asserting party reasonably expected. The
reasonable expectations of the contracting parties are assessed at the time of
contracting.
Dieckman v. Regency GP LP, 155 A.3d 358, 367 (Del. 2017) (cleaned up). To prevail on
an implied covenant claim, a plaintiff must prove “a specific implied contractual
obligation, a breach of that obligation by the defendant, and resulting damage to the
plaintiff.” Fitzgerald v. Cantor, 1998 WL 842316, at *1 (Del. Ch. Nov. 10, 1998). Because
the Company is only seeking a declaratory judgment regarding its rights under the Lease,
the Company need only prove a specific implied contractual obligation.
44
When determining whether to invoke the implied covenant, a court “first must
engage in the process of contract construction to determine whether there is a gap that
needs to be filled.” Allen v. El Paso Pipeline GP Co., L.L.C., 113 A.3d 167, 183 (Del. Ch.
2014), aff’d, 2015 WL 803053 (Del. Feb. 26, 2015) (TABLE). “Through this process, a
court determines whether the language of the contract expressly covers a particular issue,
in which case the implied covenant will not apply, or whether the contract is silent on the
subject, revealing a gap that the implied covenant might fill.” NAMA Hldgs., LLC v.
Related WMC LLC, 2014 WL 6436647, at *16 (Del. Ch. Nov. 17, 2014). The court must
determine whether a gap exists because “[t]he implied covenant will not infer language
that contradicts a clear exercise of an express contractual right.” Nemec v. Shrader, 991
A.2d 1120, 1127 (Del. 2010). “[B]ecause the implied covenant is, by definition, implied,
and because it protects the spirit of the agreement rather than the form, it cannot be invoked
where the contract itself expressly covers the subject at issue.” Fisk Ventures, LLC v. Segal,
2008 WL 1961156, at *10 (Del. Ch. May 7, 2008), aff’d, 984 A.2d 124 (Del. 2009).
“If a contractual gap exists, then the court must determine whether the implied
covenant should be used to supply a term to fill the gap. Not all gaps should be filled.”
Allen, 113 A.3d at 183. One reason a gap might exist is if the parties negotiated over a term
and rejected it. The implied covenant should not be used to fill the gap left by a rejected
term because doing so would grant a contractual right or protection that the party “failed
to secure . . . at the bargaining table.” Aspen Advisors LLC v. United Artists Theatre Co.,
843 A.2d 697, 707 (Del. Ch. 2004), aff’d, 861 A.2d 1251 (Del. 2004).
45
But contractual gaps may exist for other reasons. “No contract, regardless of how
tightly or precisely drafted it may be, can wholly account for every possible contingency.”
Amirsaleh v. Bd. of Trade of City of N.Y., Inc., 2008 WL 4182998, at *1 (Del. Ch. Sept.
11, 2008). “In only a moderately complex or extend[ed] contractual relationship, the cost
of attempting to catalog and negotiate with respect to all possible future states of the world
would be prohibitive, if it were cognitively possible.” Credit Lyonnais Bank Nederland,
N.V. v. Pathe Commc’ns Corp., 1991 WL 277613, at *23 (Del. Ch. Dec. 30, 1991) (Allen,
C.).
Equally important, “parties occasionally have understandings or expectations that
were so fundamental that they did not need to negotiate about those expectations.” Katz v.
Oak Indus. Inc., 508 A.2d 873, 880 (Del. Ch. 1986) (Allen, C.) (quoting Corbin on
Contracts § 570, at 601 (Kaufman Supp. 1984)). “The implied covenant is well-suited to
imply contractual terms that are so obvious . . . that the drafter would not have needed to
include the conditions as express terms in the agreement.” Dieckman, 155 A.3d at 361.
Once the plaintiff has established the existence of a contractual gap that can be
filled, the plaintiff must show “from what was expressly agreed upon that the parties who
negotiated the express terms of the contract would have agreed to proscribe the act later
complained of . . . had they thought to negotiate with respect to that matter.” Katz, 508
A.2d at 880. “The implied covenant seeks to enforce the parties’ contractual bargain by
implying only those terms that the parties would have agreed to during their original
negotiations if they had thought to address them.” Gerber v. Enter. Prods. Hldgs., LLC, 67
A.3d 400, 418 (Del. 2013) (cleaned up), overruled on other grounds by Winshall v. Viacom
46
Int’l, Inc., 76 A.3d 808, 814 n.13 (Del. 2013). A reviewing court does not simply introduce
its own notions of what is “fair or reasonable under the circumstances.” Allen, 113 A.3d at
184. Although its name includes the concepts of “good faith” and “fair dealing,” the
implied covenant does not establish a “free-floating” requirement that a party act in some
morally commendable sense. Gerber, 67 A.3d at 418 (cleaned up). When used with the
implied covenant, the term “good faith” contemplates “faithfulness to the scope, purpose,
and terms of the parties’ contract.” Id. at 419 (cleaned up) (emphasis omitted). It
“emphasizes faithfulness to an agreed common purpose and consistency with the justified
expectations of the other party.” Restatement (Second) of Contracts § 205 cmt. a (Am. Law
Inst. 1981), Westlaw (database updated Oct. 2021). The concept of “fair dealing” similarly
refers to “a commitment to deal ‘fairly’ in the sense of consistently with the terms of the
parties’ agreement and its purpose.” Gerber, 67 A.3d at 419 (cleaned up). The application
of these concepts turns “on the contract itself and what the parties would have agreed upon
had the issue arisen when they were bargaining originally.” Id. (cleaned up) (emphasis
omitted).
To supply an implicit term, the court “looks to the past” and asks “what the parties
would have agreed to themselves had they considered the issue in their original bargaining
positions at the time of contracting.” Id. at 418 (cleaned up). The court seeks to determine
whether it is clear from what was expressly agreed upon that the parties who
negotiated the express terms of the contract would have agreed to proscribe
the act later complained of as a breach of the implied covenant of good
faith—had they thought to negotiate with respect to that matter.
Id. (cleaned up).
47
The Delaware Supreme Court has admonished courts against a free-wheeling
approach to the implied covenant. Invoking it is a “cautious enterprise.” Nemec, 991 A.2d
at 1125. Implying contract terms is an “occasional necessity . . . to ensure [that] parties’
reasonable expectations are fulfilled.” Dunlap v. State Farm Fire & Cas. Co., 878 A.2d
434, 442 (Del. 2005) (cleaned up). Its use “should be a rare and fact-intensive exercise,
governed solely by issues of compelling fairness.” Id. (cleaned up).
a. The Lease Does Not Expressly Address Use Of The Disputed
Roads.
The contractual gap in this case concerns the Company’s ability to use the Disputed
Roads as part of its terminalling business. It is undisputed that the Lease does not address
this topic explicitly.
GT argues that the Lease contains a mechanism to address access rights and other
issues by authorizing the Company to request “easements in addition to those comprising
Tenant’s Easement[s]” if they “are necessary or desirable for the performance of Tenant’s
business.” Lease § 9. The Tenant’s Easements are for “existing and planned dock lines”
and the “Conectiv pipeline,” as well as an easement to “facilitate” those dock lines and the
pipeline. Id. § 2. If additional easements are “necessary or desirable,” then “the Tenant
shall request that Landlord grant such easements or negotiate with the party by whom the
easements must be granted. Any such easements are subject to the reasonable approval of
Landlord.” Id. GT argues that the Company should have asked for an easement to use the
Disputed Roads as directed by Section Nine of the Lease.
48
GT’s argument is misplaced, and Section Nine does not affect the implied covenant
analysis. Section Nine provides a mechanism for requesting an easement when an
additional easement is “necessary or desirable” at some point in time after the parties
entered the Lease. It does not govern the implied covenant analysis, which asks whether
the parties at the time of contracting would have addressed a matter had it not been so
obvious that the parties did not discuss it.
There is no need for the Company to have an easement to use the Disputed Roads,
precisely because of the implied covenant. The license that the Lease implicitly grants is
sufficient.9
If the Company did not have an implied right to use the Disputed Roads under the
Lease, and if the Company had no other means of accessing the Tanks, then the Company
could seek to invoke Section Nine. The Company has not pursued that alternative in this
9
See Restatement (First) of Property, Div. V, Part II, at Intro. Note (Am. L. Inst.
1944), Westlaw (database updated Dec. 2021) (“The term ‘license’ . . . describe[s] those
interests in land consisting of the privilege to use land in the possession of another which
arise out of the consent of the possessor of the land and which are not included within the
definition of easements.”); Tiffany Real Property, supra, § 830 (noting that a license “may
be in writing or oral,” or “[i]t may be implied from the relations of the parties”). Easements
and licenses are distinct. “An easement is a non-possessory interest in real property, granted
for a particular purpose, enforceable of right and not depend[e]nt for its continued existence
on the will of the grantor.” Coker v. Walker, 2013 WL 1858098, at *3 (Del. Ch. May 3,
2013). A license, by contrast, is generally terminable at will by the licensor. See
Restatement (First) of Property, supra, § 519. But “[t]he fact that a license is terminable at
the will of the licensor does not necessarily mean that the licensor can terminate it without
incurring liability for doing so.” Id. cmt. b. For example, “[t]he licensor may be bound by
contract not to so exercise his will as to terminate the license, and when so bound will be
liable in damages for breach of his contract.” Id.
49
case, and the outcome of this decision means that the Company does not have grounds to
do so.
b. Ongoing Access Was A Basic Premise Of The Negotiations That
The Parties Did Not Think To Address.
The next question is the reason for the gap. If the Lease does not include an express
contractual right to use the Disputed Roads to access the Tanks because the parties
bargained over the issue and rejected that term, then the implied covenant has no role to
play.
The record at trial demonstrates that during the negotiations over the Lease,
Diamond State and the Company did not address whether the Company could have a
contractual right to use the Disputed Roads to access the Tanks for its terminalling
business. The parties did not address that issue because the reality of the Company’s access
was so fundamental that it did not warrant consideration.
While the parties were negotiating the Lease, the Company was using the Disputed
Roads for its terminalling business. The Company could not conduct its terminalling
business without using the Disputed Roads. Ingalls Tr. 33. For over three decades, since
1973, the Company or its direct predecessor had conducted the same terminalling business
at the same location, and they had done so under a predecessor lease that the parties were
negotiating to replace.10 Comparable operations took place on that site going back to the
See Lease at ’757 (“WHEREAS, Tenant is currently leasing portions of the DSPC
10
Leased Property pursuant to that certain Lease Agreement dated August 23, 1973, as
amended (the ‘Original Lease’); and . . . WHEREAS, the parties now desire to terminate
the Original Lease and enter into this Lease to set forth the terms and conditions pursuant
50
1920s, when SICO first acquired the Buckeye Properties, leased land from the Port to
construct a dock, and began operating a terminalling business.11 At least as early as 1975,
maps referred to the road in and out of the Company’s property as “SICO Road,”
evidencing that SICO used the road in its terminalling business. Hoffman Report ¶ 29. The
parties thus negotiated against some nine decades of established practice. At the same time,
they were negotiating a lease that could last for up to forty-three years and which
contemplated that the same terminalling business would continue during that period.12 This
evidence establishes that Diamond State and the Company negotiated with the background
understanding that the Disputed Roads could be used to access the Tanks in connection
with the terminalling business.
to which Landlord shall lease the Premises (as hereinafter defined) to Tenant and Tenant
shall lease the Premises from Landlord”).
11
See JX 78 at 1 (evidencing that in 1926, SICO entered into a lease with the Board
of Harbor Commissioners to “construct piers and bulkheads along the Delaware River
adjoining the Marine Terminal” for use in conjunction with a terminalling business to be
conducted on the Buckeye Properties involving “th[e] importation and distribution of
petroleum products”); Hoffman Report ¶ 37 (discussing interview with Frank Eichler, an
individual who worked at SICO beginning in the 1950s, who recalled that SICO had the
ability to access the Port “to support the oil storage use, which has always included bringing
oil into the Port by ship, piping it to the tank on the adjoining property, and removing it
over and through the Port by truck or rail”); JX 118 § 7(A) (lease dated September 1, 1973,
between SICO and the Delaware Terminal Company to use Buckeye Parcel #2 for “the
construction, operation and maintenance of terminalling and storage facilities for
petroleum and petroleum products”). See generally Hoffman Tr. 152–81 (discussing
historical evidence regarding conduct of terminalling business from 1920s to present).
12
See Lease § 3 (providing for an initial term of approximately three years plus eight
renewal terms of five years each); id. at ’754, ’757–58 (provisions in Lease recognizing
nature of Tenant’s business).
51
GT contends that the Company asked for a right to access the Port for its
terminalling business and that Diamond State rejected the Company’s request. That
contention misconstrues the evidence. At the very end of an arduous and prolonged
negotiation, the Company asked Diamond State for an exclusive easement to use the
Disputed Roads in its terminalling business. See JX 305 at lines 161–63 (indicating the
Company’s request for an additional “exclusive easement for Tenant and Tenant’s
customers providing vehicular and truck access to Tenant’s Wilmington Terminal to
facilitate receipt and delivery of petroleum products (‘Tenant’s Access Road’).”). That
“exclusive easement” would have been exclusive, i.e., only the Company could have used
the Disputed Roads. It also would have been an easement, i.e., a recorded property right
rather than a contractual license. See Bailey Tr. 666–67.
Diamond State rejected the last-minute request for an exclusive easement. Parul
Shukla, Diamond State’s Chief Financial Officer, memorialized Diamond State’s position
in a contemporaneous markup of the Lease. Next to the Company’s request, he wrote: “No:
we have neither discussed exclusivity of the easement nor access.” JX 305 at 37. Bailey
recalled events similarly. He explained that the Company’s request went nowhere because
Diamond State did not provide exclusive access easements to anyone. Bailey Tr. 666–67,
670.
The parties did not negotiate over including a contractual right to use the Disputed
Roads as a provision in the Lease. Shukla’s note confirms that the issue had not come up
previously and only arose in the form of the last-minute request for an exclusive easement.
See JX 305 at 37 (“[W]e have [not] discussed . . . access.). Diamond State rejected the
52
request for an exclusive easement, but everyone understood that the Company could access
the Disputed Roads for purposes of its terminalling business. The reality of access was a
fundamental premise of the Lease.
c. The Implied Term
The Company proved that if the parties had thought to address whether the
Company had a contractual right to use the Disputed Roads for purposes of its terminalling
business when negotiating the Lease, then they would have agreed that the Company could
make reasonable use of the Disputed Roads for that purpose, just as the Company or its
immediate predecessor had been doing since 1973, and just as other predecessor companies
had been doing since the 1920s. Stated conversely, they would have agreed that the
Landlord could not block the Tenant or its customers from making reasonable use of the
Disputed Roads for purposes of the Company’s terminalling business.
The existing provisions of the Lease demonstrate that the parties recognized the
nature of the Company’s business, the inherent linkage between the dock and the Tanks,
and the need for the Company and its customers to make reasonable use of the Disputed
Roads to access the Tanks. In the Lease, the Company leased “[a]pproximately 1,160 linear
feet of dock space” from Diamond State. Lease at ’754. The “Reference Page” for the Lease
summarizes its purpose as follows: “For the purpose of operating certain docking facilities
for the transportation and storage of oil, petroleum products, hydrocarbons and their
derivatives and for the installation and operation of a mooring dolphin with catwalks and
utilities.” Id. Similar language appeared in Section 7(b) of the Lease. See id. § 7(b). The
53
plain language of these provisions demonstrates an understanding of the Company’s
terminalling business.
Section 2 of the Lease states that in addition to the approximately 1,160 linear feet
of dock space, the Landlord grants the Tenant
full rights of access for ingress and egress to the dock, walkway, and if
available, reasonable parking space at the dock, and ingress and egress over
existing roads owned or controlled by Landlord for access to the dock
(collectively the “Premises”) and as depicted on the drawing marked as
Exhibit “A” attached hereto and made a part hereof.
Id. § 2. The Landlord also committed to grant and convey to the Tenant “an easement with
rights and privileges for all existing and planned dock lines and the existing Conectiv
pipeline” and a further easement “to facilitate Tenant’s dock lines and the Conectiv
pipeline.” Id. And in a related easement, Diamond State granted the Company a “pipeline
easement and a temporary construction easement over and across a portion of the [Port] in
connection with the construction of the new Pipelines.” JX 54 at ’660 (Recitals); see Lease
§§ 2, 9. The easement allowed the Company to access the Port “to survey, construct, install,
operate, protect, use, inspect, maintain, replace, remove and repair the Pipelines.” JX 54 §
1(a).
Through these provisions, the Lease recognized the obvious connection between the
dock and the Tanks. Under the Lease, the Tenant leased the dock “for the transportation
and storage” of liquid petroleum. Lease at ’754. The storage function takes place at the
Tanks. In the Lease, the Landlord committed to grant the Tenant an easement for the pipes
that run under the Port and connect the dock to the Tanks. Those pipes are used to transport
petroleum to the Tanks for use in the Company’s terminalling business. Customers retrieve
54
liquid petroleum from the Tanks using tanker trucks, which only can access the Tanks by
using the Disputed Roads. The business arrangement contemplated by the Lease relies on
the seamless transportation of liquid petroleum from the dock to the Tanks and from the
Tanks to customers.
The Volume-Based Fee further evidences an understanding that the Company was
conducting a terminalling business that involved the Tanks. To reiterate, Section 5(c) of
the Lease stated,
In addition to Rent, Tenant shall pay to Landlord a fee based on the total
number of barrels of oil, petroleum products, hydrocarbons and their
derivatives crossing the dock entering into the Premises plus the total number
of barrels of oil crossing the dock exiting from the Premises annually
throughout the term of this Lease.
Id. § 5(c). The Lease contains the Volume-Based Fee because the parties understood that
the Company transfers liquid petroleum products from ships, across the dock, through
pipes under the Port, and into the Tanks, where its customers pick up the products using
tanker trucks. For the business to function, the Company’s customers needed to access the
Tanks via the Disputed Roads. Without that access, the commercial arrangement
documented in the Lease makes no sense.
Extrinsic evidence confirms the understanding that the Lease reflects. For twelve
years after executing the Lease, the Company used its access rights to provide the
terminalling services described in the Lease. During that period, the Disputed Roads
provided the only means of accessing the Tanks. During that period, the Company and its
customers used the Disputed Roads to access the Tanks. Not only that, but the broader
55
historical evidence demonstrates that the Company and its predecessors have conducted
the same or a comparable terminalling business for nearly a century.
It follows that if the parties had thought to address whether a contractual right to use
the Disputed Roads existed, then they would have agreed that the Company could make
reasonable use of the Disputed Roads for its terminalling business. The Lease would have
provided that the Landlord could not block the Tenant or its customers from making
reasonable use of the Disputed Roads for purposes of accessing the Tanks. The implied
covenant can supply this omitted but obvious term.
d. Issues Of Compelling Fairness Warrant Recognizing The
Implied Term.
The final question is whether this case is one where the implied covenant should be
deployed. As this decision has acknowledged, the implied covenant must be used sparingly.
“When parties have ordered their affairs voluntarily through a binding contract, Delaware
law is strongly inclined to respect their agreement . . . .” Libeau v. Fox, 880 A.2d 1049,
1056 (Del. Ch. 2005), aff’d in part, rev’d in part, 892 A.2d 1068 (Del. 2006). “Delaware
courts rightly employ the implied covenant sparingly when parties have crafted detailed,
complex agreements, lest parties be stuck by judicial error with duties they never
voluntarily accepted.” Bay Ctr. Apartments Owner, LLC v. Emery Bay PKI, LLC, 2009 WL
1124451, at *7 (Del. Ch. Apr. 20, 2009). To reiterate, the application of the implied
covenant “should be a rare and fact-intensive exercise, governed solely by issues of
compelling fairness.” Dunlap, 878 A.2d at 442 (cleaned up).
56
This is a case where invoking the implied covenant is grounded in reasons of
compelling fairness. GT maintains that the Company lacks any legal or equitable access
right, meaning that GT can cut off the Company’s access in its sole discretion. Under that
scenario, the Company’s business exists as a matter of GT’s grace. GT can demand
whatever terms it wishes and impose any fees it wants, and if the Company does not submit,
then GT can destroy the Company’s business by blocking the Disputed Roads.
If the Company and Diamond State had thought to negotiate over a contractual right
of access, they never would have agreed that the Landlord could block access in its sole
discretion. It can be said with confidence that the Company never would have accepted
that arrangement because access to the Tanks is essential to the terminalling business, and
the Company would not have agreed to terms that left it at the Landlord’s mercy. The
Company would have insisted on protections so that any dispute could be litigated.
On the facts of this case, recognizing an implied contractual right to use the Disputed
Roads is necessary to preserve the spirit of the parties’ bargain. The court therefore will
enter a declaration establishing that the Lease includes an implied term permitting the
Company and its customers to make reasonable use of the Disputed Roads to access the
Tanks for purposes of the Company’s terminalling business.
2. The Public Road Argument
In its lead argument, the Company boldly asserts that the Disputed Roads are public
roads. The Company understandably gives pride of place to this argument because it is the
most powerful. If true, then GT cannot restrict anyone’s use of the Disputed Roads. The
public, including the Company, could access the Disputed Roads, and it would be
57
necessary for the State of Delaware to pursue a vacation proceeding to terminate the right
of public access. At first blush, this theory sounds so extreme as to be inconceivable. Yet
the Company presented a rich historical account of the Port which provides some support
for this theory. Ultimately, however, the evidence is not sufficiently persuasive to carry the
Company’s burden.
In Delaware, “[a]ll public roads, causeways and bridges laid out as such, or made
by lawful authority, or which have been used as such and maintained at the public charge
for 20 years or more are declared to be common highways.” 17 Del. C. § 509. “Section 509
has been construed as recognizing three alternative methods for creating a ‘common
highway’: (1) formal dedication by a private owner; (2) official dedication by a public
authority; or (3) twenty years of public use and public maintenance.” Scureman v. Judge,
626 A.2d 5, 20 (Del. Ch. 1992), aff’d sub nom. Wilm. Tr. Co. v. Judge, 628 A.2d 85 (Del.
1993) (TABLE); see Amer v. NVF Co., 1994 WL 279981, at *3 (Del. Ch. June 15, 1994)
(“Generally, absent express dedication and acceptance, a road does not become a public
road unless the public has used it for twenty years and the public has paid for its
maintenance for that period.” (footnote omitted)).
Section 509 codified “the common law of statutory dedication and modif[ied] the
common law with respect to private dedication.” Scureman, 626 A.2d at 18. Thus, if a road
“is a ‘public road’ or ‘public highway’ under common law principles of statutory
dedication, then it is also a ‘common highway’ under § 509.” Id. By contrast, Section 509
modified the “common law to protect the rights of private owners of roads who do not
58
object to public use of their roads but who had no intent to dedicate them to the public.”13
This case does not involve a private dedication, so Section 509 applies as a codification of
the common law.
A party must prove by a preponderance of the evidence that the contested road is
public. See id. at 914 (finding that the plaintiffs “failed to establish by the preponderance
of the evidence that [the] defendants’ lot is traversed by a public road”). The Company
argues that the Disputed Roads are “public” because the City of Wilmington either (i) laid
them out as public roads pursuant to its authority or (ii) allowed them to become public
roads through twenty years of public use and maintenance. Dkt. 212 at 20.
The Company sought to establish a public dedication by proving that the City laid
out the Disputed Roads as public roads. A public road is a road that the owner controls and
13
Id. at 20. At common law, “public user for an extended period of time without
more was deemed to be evidence of an intent to dedicate a private way to the public.”
Lofland v. Truitt, 260 A.2d 909, 913 (Del. Ch. 1969). This “harsh” treatment of private
landowners led the General Assembly to statutorily modify the common law:
So many neighborhood roads exist by the indulgence of land owners, that the
common law was considered harsh in reference to forfeiting private land by
indulgence, and the Legislature has required that such a road shall have not
only been used, but maintained and kept up by the public for twenty years,
to make it a public road against the owner of the land.
Johnson v. Stayton, 5 Del. (5 Harr.) 448, 450 (Del. 1854). By enacting the predecessor to
Section 509, the General Assembly intended “to protect the rights of a complacent or
indulgent landowner who does not object to public use of his road but who has no intent to
dedicate such road to the public.” Lofland, 260 A.2d at 913.
59
maintains for use by the general public.14 To carry its burden, the Company needed to prove
not only that the City built the Disputed Roads, but also that the City constructed them for
public use.
It is undisputed that the City built the Disputed Roads. The City built the Port in
1922. JX 67 at ’117. The evidence shows that by the 1930s at the latest, the City had built
the Disputed Roads. See JX 116 (1931 map of the “Crane Hook Oil Storage Co. Plant and
Approaches” depicting roads where the Disputed Roads are currently; 1931 aerial
photograph showing road leading to the Tanks). The City had the authority to build the
Disputed Roads under its charter. Hoffman Tr. 182; see 22 Del. C. § 802 (the “Home Rule,”
which empowers certain municipal corporations to “have and assume all powers which,
under the Constitution of this State, it would be competent for the General Assembly to
grant by specific enumeration and which are not denied by statute;” the “powers” include
constructing roads). GT does not contest this point.
The Company failed, however, to prove that the City established and maintained the
Disputed Roads for use by the public. The Company contends that a 1923 map of the
Terminal shows the City’s plan for the roads and that the historical record indicates that
14
See Scureman, 626 A.2d at 11 n.3 (quoting Highway, Black’s Law Dictionary
(5th ed. 1979)); see also Public Highway, Black’s Law Dictionary (11th ed. 2019) (“A
highway controlled and maintained by governmental authorities for general use.”);
Common Highway, Black’s Law Dictionary, supra, (“A highway for use by the public for
any purpose of transit or traffic.”).
60
the City wanted to link the Port to the City. Dkt. 212 at 21; see JX 72 (the “1923 Map”).15
The 1923 Map does depict the Disputed Roads and shows them connecting to what are
indisputably public roads. Hoffman, the Company’s real estate expert, opined that this
evidence shows that the City intended to “connect[] the Port to the City.” Hoffman Tr. 183.
That is a fair inference, but it does not follow that the City intended for the Disputed Roads
to be public. The more reasonable inference is that the City wanted to connect the Port to
the City, but at the same time wanted to be able to control access to the Port. It does not
follow that the City wanted the roads within the Port to be public.
The Company also points to the naming of one of the Disputed Roads as “Sico
Road,” after SICO. The Company argues that the name evidences an intent to facilitate
public access to the Tanks, originally owned by SICO. Dkt. 212 at 21. There are other more
plausible inferences. One is that the name “Sico Road” recognized that SICO used the road
in its terminalling business. Another is that the name adopted the road’s destination—the
SICO property—as a referent, like using “Philadelphia Pike” for a road that goes to
Philadelphia or “Lancaster Pike” for a road that goes to Lancaster. The name “Sico Road”
need not imply that the public could use the road to access the Tanks.
The Company therefore failed to carry its burden to prove that the City laid out the
Disputed Roads as public roads. Alternatively, the Company argues that the Disputed
15
The Company calls this the “1923 Map,” and the court adopts that terminology.
A notation on the map indicates that it was modified in the 1930s. See 1923 Map; Hoffman
Tr. 323–24. Whether the map was from 1923 or from the 1930s does not materially alter
the analysis.
61
Roads are public roads because they were publicly used and maintained for twenty years.
Again, there is some evidence to support public use, but it is not enough to carry the
Company’s burden.
The Company argues that there was “unrestricted access” to the Tanks using the
Disputed Roads beginning in the 1950s. Dkt. 212 at 7. The Company acknowledges that
the unrestricted access ended in 1999 when a gate was placed across the entrance to the
Port. Id. at 9 n.1; see JX 239 Ex. E. The Company introduced evidence to the effect that
the members of the public frequently accessed the Port during the intervening period. See,
e.g., Klees Tr. 110–116; Matthews Tr. 620. But the Company’s evidence does not prove
that the public had an unrestricted right of access consistent with public use.
Instead, the Company’s evidence suggests that the City and later the State gave
permission to members of the public to access the Port. For example, Klees testified that
while working at the Tanks, he could order pizza and have it delivered, that his parents
occasionally stopped by to visit, and people with a historical interest in aspects of the Port
occasionally would come view a memorial that was once there. Klees also recalled people
being permitted to fish from locations in the Port and others who would go on board vessels
to sell trinkets and other products. See Klees Tr. at 113–15.
But Klees acknowledged that the individuals accessing the Port interacted with a
guard who asked them about their business and where they were going. Id. at 114. The
presence of a guard is inconsistent with public use. To the extent there was some general
public use, it appears to have been sporadic and limited.
62
The Company presented some evidence in support of an interesting theory.
Nevertheless, the Company’s showing is not sufficient to support a finding that the
Disputed Roads are public roads.
3. The Argument For An Express Easement
The Company also asserted that it holds an express easement which allows it to
traverse the Disputed Roads. To support the existence of an express easement, the
Company relies on a 1973 resolution passed by the Wilmington City Council. JX 53 at
’600 (the “1973 Resolution”). That document does not create an express easement.
a. Governing Principles Of Law
“An easement is a non-possessory interest in real property, granted for a particular
purpose, enforceable of right and not depend[e]nt for its continued existence on the will of
the grantor.” Coker, 2013 WL 1858098, at *3.16 An express easement “may be contained
within the language of a deed or in a separate document.” Alpha Builders, Inc. v. Sullivan,
2004 WL 2694917, at *4 (Del. Ch. Nov. 5, 2004). A court may find that an express
16
There are two types of express easements: easements appurtenant and easements
in gross. “[A]n easement in gross is personal to the grantee, [and] as a general matter it dies
with the grantee.” Id. at *5. An appurtenant easement “form[s] a part of the propert[y] and
run[s] with the land.” Id. Because an appurtenant easement runs with the land, “it bind[s]
successors-in-title.” Id. The court need not determine whether the easement that the
Company claims was appurtenant or in gross. The grantee of the easement was Energy
Transporters, then an affiliate of the Delaware Terminal Company. In 1987, Energy
Transporters merged with the Delaware Terminal Company. Hoffman Tr. 196–97. By
operation of law, Delaware Terminal Company succeeded to the rights of Energy
Transporters. 8 Del. C. § 259. The Company acquired the Delaware Terminal Company in
2005. Hoffman Tr. 175. The Company thus beneficially owns whatever easement was
granted initially to Energy Transporters, if an easement was in fact granted.
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easement exists if the writing “contain[s] plain and direct language evidencing the grantor’s
intent to create a right in the nature of the easement.” Black v. Staffieri, 2014 WL 814122,
at *2 (Del. 2014) (TABLE) (cleaned up). “No specific words are required so long as the
writing clearly reflects the grantor’s intent to create an easement.” Id.“The construction of language creating an easement or the interpretation of an
express easement is a question of law for the court.” 28A C.J.S. Easements § 186, Westlaw
(database updated Mar. 2022). Documents conveying an interest in land “are specialized
forms of contract, and like other contracts are not subject to construction unless the
language is ambiguous.” Jestice v. Buchanan, 1999 WL 962591, at *2 (Del. Ch. June 14,
1999). “If there is no reasonable doubt as to the meaning of the words, the [conveyance] is
unambiguous and the Court’s role is limited to an application of the meaning of the words.”
Smith v. Smith, 622 A.2d 642, 646 (Del. 1993).
If a document conveying an interest in land is ambiguous, Delaware courts “apply
accepted standards of construction.” Id. When faced with such an instrument, “the Court
will look to evidence of the grantors’ intent at the time of the instrument[’]s[] execution.”
Francis v. Macklin, 1990 WL 100799, at *2 (Del. Ch. July 19, 1990). The court will “read
[the ambiguous instrument] in the light of the intent of the parties as determined by the
facts and circumstances surrounding the transaction.” Rohner v. Niemann, 380 A.2d 549,
552 (Del. 1977). That is, the court will look to extrinsic evidence.
The parties’ actual practice weighs heavily in the interpretation of an ambiguous
instrument. “It is a familiar rule that when the nature and extent of a granted right is
ambiguous or doubtful under the terms of the grant, the exercise of the right by its holder,
64
acquiesced in by the grantor, establishes its extent.” Richard Paul, Inc. v. Union
Improvement Co., 91 A.2d 49, 53 (Del. 1952). For example, in Bogia v. Kleiner, this court
considered “decades of conduct” in determining how to interpret an easement. 2019 WL
3761647, at *8 (Del. Ch. Aug. 8, 2019).
There is also a specific interpretative principle applicable to easements. As noted, a
court will consider extrinsic evidence when determining the “intent of the parties” to an
ambiguous deed. Rohner, 380 A.2d at 552. But if an interpretation is not contrary to the
intent of the parties, then “[a]ny uncertainties must be resolved in favor of the grantees.”
Bogia, 2019 WL 3761647, at *8 (cleaned up); Richard Paul, 91 A.2d at 53 (“In construing
[ambiguous] grants, ambiguous or doubtful words will be construed in favor of the
grantee.”). Put another way, “[w]here uncertainties appear in the grant [of a deed], they
must be resolved in favor of the grantee as long as such a construction does not violate any
apparent intention of the parties to the transaction.” Rohner, 380 A.2d at 552.
a. The 1973 Resolution
The Company relies on the 1973 Resolution, which was a resolution passed by the
Wilmington City Council to authorize the Mayor and City Clerk to execute copies of a
proposed agreement with Energy Transporters. The underlying agreement contemplated
that Energy Transporters would install and maintain a pipeline for transporting oil on City
property. JX 53 at ’601 (the “Pipeline Agreement”).
The Pipeline Agreement contained an express easement that granted Energy
Transporters permission to install and maintain the pipeline on City property. That
easement granted to Energy Transporters
65
the right to construct and maintain, at the sole cost and expense of [Energy
Transporters], a pipeline for the transportation of oil, residual oil, petroleum
and petroleum products in the bed of the Christiana Avenue from the Marine
Terminal to a site to be designated by [Energy Transporters] on Commerce
Street, in the rights-of-way of City on Cherry Island for Fourth Street and
Twelfth Street, and across lands owned by City adjacent to the Sico Property
near the Marine Terminal.
JX 53 at ’601. The Company agrees that the easement in the Pipeline Agreement only
granted Energy Transporters the right to construct and maintain a pipeline. It did not grant
a right of access to the Port.
In the 1973 Resolution, the City Council approved the Pipeline Agreement. The
1973 Resolution stated:
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
WILMINGTON that the Agreement between the City of Wilmington, a
municipal corporation of the State of Delaware, and Energy Transporters,
Inc., a corporation of the State of Delaware, granting permission to place a
pipeline for the transportation of oil, residual oil, petroleum and petroleum
products, in the bed of Christiana Avenue, Fourth Street and Twelfth Street
on Cherry Island, together with rights-of-way from the Sico Property across
the lands of the City of Wilmington adjacent to the Sico property, a copy of
which is attached hereto and made a part hereof, is hereby approved and the
Mayor and City Clerk are hereby authorized and directed to execute as many
copies of this Agreement as may be found necessary or desirable.
Id. at ’600.
The Company argues that the 1973 Resolution created an easement that is broader
than the easement in the Pipeline Agreement. That is not correct. The 1973 Resolution did
not create an easement, and the differences in language do not suggest any intent to create
broader rights than the Pipeline Agreement.
For starters, the 1973 Resolution did not create an easement. Recall that to create an
easement, a document must “contain[] plain and direct language evidencing the grantor’s
66
intent to create a right in the nature of the easement.” Black, 2014 WL 814122, at *2
(cleaned up).
Shorn of resolving language, subordinate clauses, and modifiers, the 1973
Resolution consists of the following compound sentence: “The Agreement . . . is hereby
approved and the Mayor and City Clerk are hereby authorized and directed to execute . . .
copies.” The 1973 Agreement does not contain any language granting an easement.
The only language in the 1973 Resolution that addresses property rights appears in
an adjectival phrase that modifies the word “Agreement.” The 1973 Resolution identifies
the Agreement in question as the one
between the City of Wilmington, a municipal corporation of the State of
Delaware, and Energy Transporters, Inc., a corporation of the State of
Delaware, granting permission to place a pipeline for the transportation of
oil, residual oil, petroleum and petroleum products, in the bed of Christiana
Avenue, Fourth Street and Twelfth Street on Cherry Island, together with
rights-of-way from the Sico Property across the lands of the City of
Wilmington adjacent to the Sico property, a copy of which is attached hereto
and made a part hereof.
JX 53 at ’600. That language does not create an easement. It simply describes which
agreement is being authorized and approved.
The reference to property rights in this lengthy adjectival phrase is not a grant, and
it therefore does not create an easement. The description of property rights is an attempt to
summarize what the Agreement provides.
The Company argues that the 1973 Resolution represents the action of the City
Council, and that is true. See Key Props. Gp., LLC v. City of Milford, 995 A.2d 147, 151
(Del. 2010) (“[A] resolution is documented in a particular form, which includes ‘resolving
67
clauses’—each identifying specific action authorized by the voting body.”). But the action
of the City Council was to approve an agreement and authorize the Mayor and City Clerk
to execute copies of it. The action the City Council took was not to grant an easement. It
did not say, for example, “BE IT RESOLVED THAT THE COUNCIL OF THE CITY OF
WILMINGTON grants permission to Energy Transporters, Inc.”
The Company also argues that the 1973 Resolution contains a broader description
of the rights granted to Energy Transporters than the Pipeline Agreement. There is a slight
difference.
The Pipeline Agreement grants Energy Transporters
the right to construct and maintain . . . a pipeline . . . in the bed of the
Christiana Avenue from the Marine Terminal to a site to be designated by
[Energy Transporters] on Commerce Street, in the rights-of-way of City on
Cherry Island for Fourth Street and Twelfth Street, and across lands owned
by City adjacent to the Sico Property near the Marine Terminal.
JX 53 at ’601. The Pipeline Agreement thus makes clear that the rights-of-way “across
lands owned by City adjacent to the Sico Property near the Marine Terminal” are for
purposes of constructing and maintaining a pipeline.
The 1973 Resolution attempts to summarize the grant in the Pipeline Agreement,
but it changes the words slightly. The 1973 Resolution describes the Pipeline Agreement
as granting Energy Transporters permission “to place a pipeline . . . in the bed of Christiana
Avenue, Fourth Street and Twelfth Street on Cherry Island, together with rights-of-way
from the Sico Property across the lands of the City of Wilmington adjacent to the Sico
property.” Id. at ’600. The latter framing makes it seem like the agreement contained an
open-ended grant of “rights-of-way from the Sico Property across the lands of the City of
68
Wilmington adjacent to the Sico property,” rather than a grant of rights-of-way solely for
purposes of constructing and maintaining a pipeline.
This slight difference is not enough to suggest that the 1973 Resolution granted a
broad easement to Energy Transporters conferring “rights-of-way from the Sico Property
across the lands of the City of Wilmington adjacent to the Sico property.” Read properly
as a resolution approving the Pipeline Agreement, the difference simply reflects a clerk’s
attempt to capture the substance of the Pipeline Agreement, while doing so imperfectly.
The 1973 Resolution does not create an easement. It therefore cannot provide the
Company with any right to use the Disputed Roads.
4. The Argument For A Prescriptive Easement
The Company also argues that it has a prescriptive easement over the Disputed
Roads. To prove a prescriptive easement, the Company “must show, by clear and
convincing evidence, that they have used the [Disputed Roads] in a manner that is: (1) open
and notorious, (2) exclusive (against the public at large), (3) continuous for an
uninterrupted period of at least 20 years, and (4) hostile to the true owner’s claim of right.”
Tubbs v. E & E Flood Farms, L.P., 13 A.3d 759, 766 (Del. Ch. 2011) (footnote omitted).
The Company did not prove by clear and convincing evidence that its use was hostile.
The Company’s evidence satisfies the first three elements of the test. First, the
Company’s use of the Disputed Roads was open and notorious. “To be open and notorious,
the use must be so open, visible, and apparent that it gives the owner of the servient
tenement knowledge and full opportunity to assert his rights.” Anolick v. Holy Trinity
Greek Orthodox Church, Inc., 787 A.2d 732, 741 (Del. Ch. 2001) (cleaned up). The
69
Company openly used the Disputed Roads, and GT and its predecessors were aware of this
use. GT does not dispute this point.
Second, the Company’s use was exclusive. “For purposes of an easement by
prescription, the use must be exclusive ‘as against the public at large,’ but the true owner
and the person acquiring the easement by prescription may both make use of the easement.”
Brown, 2003 WL 136181, at *5 n.20.
[T]he user need be exclusive only in the sense that it must not depend for its
enjoyment upon a similar right in others; it must be exclusive as against the
public at large, but two or more persons may independently acquire an
easement by prescription to use the same road or way, and the easement may
be acquired in common with the true owner.
Marta v. Trincia, 22 A.2d 519, 520 (Del. Ch. 1941). As noted, the Company failed to prove
that the Disputed Roads were public roads. A corollary of the Company’s evidentiary
failure is that, consistent with the Company’s nearly continuous use of the Disputed Roads
and the absence in the record of others’ use of the Disputed Roads, the Company’s use is
exclusive as against the public at large.
The third element is also met. The Company has been using the Disputed Roads
since at least 1973. The historical evidence suggests that SICO and other prior operators of
the terminalling business have used the Disputed Roads since at least the 1930s. The
Company has satisfied the twenty-year prescriptive period. GT also does not dispute this
point.
The Company failed, however, to prove that its use was hostile. For purposes of a
prescriptive easement, “[h]ostility is a term of art meaning that the use is adverse to the
true owner’s claim of right.” Tubbs, 13 A.3d at 767. A use is not hostile if it is done with
70
permission by the true owner. See Restatement (Third) of Property (Servitudes), § 2.16
cmt. f (Am. L. Inst. 2000), Westlaw (database updated Mar. 2022) (“When a property
owner gives permission to use property, the law implies that a license was intended . . . .
Permissive uses do not give rise to prescriptive rights . . . .”); see also Jon W. Bruce &
James W. Ely, Jr., The Law of Easements & Licenses in Land § 5:9, Westlaw (database
updated Oct. 2021) (“Permissive use, no matter how long continued, cannot ripen into a
prescriptive easement.”). In addition, “[w]hen use of a servient estate is initially
permissive, the use will confer a prescriptive right only if the user subsequently makes a
direct assertion of a claim hostile to the owner.” Bruce & Ely, supra, § 5:9.
The Company failed to prove that its use was hostile as to the owner of the Port.
Instead, the evidence indicates that the Company and its predecessors have used the
Disputed Roads with permission from the owners and operators of the Port. Beginning with
SICO in the 1920s, the parties who have conducted the terminalling business have entered
into leases with the Port. See JX 78. They have not asserted a hostile right of access against
the Port. Because the initial use of the Disputed Roads appears to have been permissive,
the Company or its predecessors would have had to make a direct assertion of a claim to
an easement. Before this case, there is no evidence that the Company or its predecessors
did that.
Because the Company failed to prove hostile use, the Company failed to prove by
clear and convincing evidence that it possessed a prescriptive easement.
71
5. The Argument For An Easement By Estoppel
The Company finally argues it should be granted an easement by estoppel. “[A]n
easement by estoppel is created when (1) a promisor’s representation that an easement
exists has been communicated to a promisee; (2) the promisee believes the promisor’s
representation; and (3) the promisee acts in reliance upon the promisor’s representation.”
Hionis v. Shipp, 2005 WL 1490455, at *4 (Del. Ch. June 16, 2005), aff’d, 903 A.2d 323(Del. 2006) (TABLE). The Company bore the burden of proving by clear and convincing
evidence that it had an easement by estoppel. See Charcap, 2017 WL 3268183, at *6
(“[B]ecause estoppel is an equitable doctrine that creates an exception to the statute of
frauds, a party seeking to enforce a parol contract faces an enhanced evidentiary burden,
and must demonstrate by clear and convincing evidence that such an exception is
applicable.” (cleaned up)). The Company failed to do so.
The Company does not argue that anyone ever made a representation that an
easement existed. Instead, the Company argues that “Port operators over the past nearly
100 years have represented to [the Company] and its predecessors that an easement exists
by building Sico Road, entering into continuous partnerships and agreements, and never
blocking access.” Dkt. 212 at 39. The Company has not provided authority that would
support recognizing a de facto representation based on a party’s conduct. Presumably there
could be such a case, but the conduct would have to be more extensive than what the
Company has identified.
The Company relies on the name of “Sico Road,” but as this decision has explained,
the name makes sense for multiple reasons, including because SICO used the road and
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because it led to the SICO property. The name does not suggest that SICO benefited from
an easement. The Company’s other evidence demonstrates the existence of a longstanding
business relationship between the Port’s operators and the Company and its predecessors,
but again that evidence does not suggest that an easement exists. It is more consistent with
the Port’s operators consenting to the Company’s use of the Disputed Roads as part of the
commercial relationship that the parties documented in a series of leases.
The Company provided authority supporting the idea that “there may be a duty to
disclose the existence of an easement (or lack thereof) where ‘the servient estate owner
observes the claimant improving the servient estate.’” See Charcap, 2017 WL 3268183, at
*9 (quoting Bruce & Ely, supra, § 6:1)). The Company and its predecessors plainly
invested in and improved the Buckeye Properties, including by building the Tanks. They
did so, however, in reliance on the rights that they secured under leases with the Port’s
operators, including the current Lease. The evidence does not support a finding that the
Company or its predecessors relied on any type of representation from the owners or
operators of the Port that could support an easement by estoppel.
III. CONCLUSION
The Company proved that it does not owe the Terminal Usage Fees. The Company
also proved that it has an implied contractual right to make reasonable use of the Disputed
Roads to access the Tanks as part of its terminalling business. The Company failed to prove
its other theories.
Within thirty days, the parties shall present an implementing order that has been
agreed-upon as to form. If there are other issues that the court must address before entering
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a final order, then the parties shall submit a joint letter identifying the issues and proposing
a process for resolving them.
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