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Hess Corp. v. ENI Petroleum US, LLC

Superior Court of New Jersey, Appellate Division

January 9, 2014

HESS CORPORATION, Plaintiff-Respondent,
v.
ENI PETROLEUM US, LLC, Defendant-Appellant, and ENI USA GAS MARKETING LLC, Defendant

Argued: December 18, 2013.

Approved for Publication March 26, 2014.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6149-10.

Gary M. Fellner argued the cause for appellant ( Porzio, Bromberg & Newman, attorneys; Mr. Fellner, of counsel and on the briefs; Michael J. Naporano, on the briefs).

Christopher Raleigh argued the cause for respondent ( Cozen O'Connor, attorneys; Mr. Raleigh, of counsel and on the brief; Geoffrey D. Ferrer, on the brief).

Before Judges SIMONELLI, FASCIALE and HAAS. The opinion of the court is delivered by HAAS, J.A.D.

OPINION

Page 724

[435 N.J.Super. 41] HAAS, J.A.D.

In this dispute over the application and effect of force majeure provisions in a natural gas supply contract, defendant Eni Petroleum US, LLC appeals from the March 7, 2013 amended final judgment of the Law Division, which required defendant to pay plaintiff Hess Corporation $317,000 in damages, $81,476.87 in prejudgment interest, and $263,024.15 in legal fees. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The material facts are not in dispute. Defendant is a Delaware corporation with its principal place of business in Houston, Texas. It produces natural gas from, among other locations, sources under the sea floor in the Gulf of Mexico. Plaintiff is also a [435 N.J.Super. 42] Delaware corporation, but has a place of business in Woodbridge, New Jersey.

On September 5, 2007, the parties reached agreement on the basic terms that would govern a series of natural gas sales from defendant to plaintiff. Those general terms were contained in a " Base Contract" prepared from an industry form published by the North American Energy Standards Board (NAESB). The NAESB form consists of three parts: (1) the Base Contract with General Terms and Conditions; (2) a Transaction Confirmation form, which allows the parties to fill in details regarding specific transactions; and (3) a " Special Provisions" addendum, which could be used to modify the General Terms and Conditions.

Under the Base Contract, defendant agreed to " sell and deliver" and plaintiff agreed to " receive and purchase" natural gas. The Base Contract contained only the basic provisions that would apply to any subsequent natural gas sales between the parties, and did not recite the details for any specific transaction. Instead, the details of each subsequent sale were to be memorialized in written " Transaction Confirmations." The Base Contract did not specify a particular source of the gas defendant would sell, nor did it state that the gas would be produced by defendant, rather than by another producer.

Beginning on November 20, 2007, the parties completed Transaction Confirmation forms for the months of December 2007, January, February, March, and April 2008 by filling in the specific details of the next month's sale/purchase of natural gas.

Page 725

Each Transaction Confirmation form specified that the performance obligation was " Firm," [1] as well as the quantity, price, delivery period, and delivery point for the following month's transaction. The delivery point for each transaction was the " Tennessee Gas [435 N.J.Super. 43] Pipeline on 2i - Zone L - 500 Leg" (" Tennessee 500" ).[2] Each form also reiterated that it was subject to the Base Contract dated September 5, 2007. Critically, the Transaction Confirmation forms did not specify which transporter[3] was to be ...


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