observations of "the general condition of the vessel." (T1 at 108-09).
Mr. Peter Siebel, Jr., President of Beltic Marine Corp., visited the Kalli on December 17, 1986 and certified to a Mr. Bentlarson and Mr. Skaarup of Skaarup Shipping, Inc. (the owners of the Kalli) that the boom "was not capable of being moved on December 17 because they didn't have the electrical connections . . . the electrical connections were not in proper operating order on December 17th." (T2 at 81). Captain Mistry testified that on December 17, the boom was "fixed" and capable of being moved. (T1 at 146). However, for this appraisal, Captain Mistry relied exclusively on representations made by the Kalli's Chief Officer.
Captain Mistry never directly observed the boom move more than eight to ten degrees. (T1 at 147).
1. Camden Iron's Claim That Bomar Breached The November 13, 1986 Contract
Simply stated, the legal question with respect to Camden Iron's direct claim against Bomar is whether Bomar breached its obligations under the November 13, 1986 contract (P-1) by failing to furnish a vessel (1) capable of a proper draft survey; and (2) "reasonably suited to the receipt of the goods." N.J.S.A. 12A:2-503(1)(b). The inquiry is somewhat complicated, however, by the fact that the contract itself is silent on the crucial questions that have been raised concerning the hatches (to wit, their size and number), and the draft survey (namely mode of surveying
and the timetable for completing it.) Framed another way, the explicit contract language reflects an "absence of expectation," that is, both Camden Iron and Bomar completely failed to contemplate the potentiality that a vessel like the Kalli might be tendered and thus, neither party had any reasonable expectations concerning such a contingency to have warranted memorialization in writing. See Farnsworth, Disputes Over Omission in Contacts, 68 Colum. L. Rev. 860, 860-62, 891 (1968) ("Farnsworth, Disputes Over Omission "). Cf. Bloomfield, The Role of Foreseeability In Allocation of Risk Under UCC 2-615, 21 S. Tex. L.J. 441 (1980).
A well worn axiom of contract law is that "when a contract is clear, the court is bound to enforce its terms as they are written," Wells v. Wilbur B. Driver Co., 121 N.J. Super. 185, 198, 296 A.2d 352 (Law Div. 1972), for it is beyond the proper domain of the judiciary to "make a different or a better contract than the parties themselves have seen fit to enter into." Washington Constr. Co. v. Spinella, 8 N.J. 212, 84 A.2d 617 (1951). However, in a casus omissus21 such as the matter presently at bar, where the four corners of the parties written agreement fail to provide for the dispute at hand, it is up to the court to fill the gap left by the contracting parties. E. Farnsworth, Contracts § 7.16 at 523 (1982) ("Farnsworth, Contracts "). See generally Restatement (Second) of Contracts § 204 (1981) ("when the parties to a bargain . . . have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court"). As one New Jersey court stated this fundamental precept:
Terms, although not specifically set forth, may be implied where the parties must have intended them because they are necessary to give business efficacy to the contract as written, or to give the contract an effect which the parties, as fair and reasonable, presumably would have agreed on if, having in mind the possibility of the situation which has arisen, they contracted expressly in reference thereto.
Berkeley Dev. Co. v. Pacific Tea Co., 214 N.J. Super. 227, 240, 518 A.2d 790 (Law Div. 1986) (citations omitted). Of course, "implied covenants and terms of a contract are as effective components of the agreement as those expressed." Aronsohn v. Mandara, 98 N.J. 92, 100, 484 A.2d 675 (1984). It is generally accepted that the law of sales governing the mercantile community is the Uniform Commercial Code. See, e.g., G. Gilmore and C. Black, The Law of Admiralty 100-02 (1975). Consequently, we shall look to New Jersey's Uniform Commercial Code, N.J.S.A. 12A:1-101 to 12A:2-725, and the common law of contracts for guidance.
One essential contract term that the parties did provide for, concerned their respective responsibilities vis a vis the shipment of the steel scrap. Specifically, P-1 provided the following clause: "FOBST VESSEL CAMDEN, NEW JERSEY." The New Jersey Uniform Commercial Code ascribes meaning to the "F.O.B." term:
(1) Unless otherwise agreed the term F.O.B. (which means "free on board") at a named place . . . is a delivery term under which