841 F2d 1129 Jones Oregon Stevedoring Co v. Bassro A/s
841 F.2d 1129
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
JONES OREGON STEVEDORING CO., Plaintiff-Appellee,
v.
BASSRO A/S, Defendant-Appellant.
No. 86-4417.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 8, 1988.
Decided March 8, 1988.
Before SKOPIL, CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges.
MEMORANDUM*
In this action on a maritime stevedoring contract, the district court concluded that Jones Stevedoring Co. should recover from a shipowner, Bassro A/S, the cost of framing necessary for the loading of a ship. On appeal, Bassro argues that the district court erred in (1) finding the contract ambiguous; and (2) resolving the ambiguity in favor of the maker of the contract. We conclude that the contract is unambiguous and affirm on that ground.
DISCUSSION
The meaning of contractual terms and whether they are ambiguous are questions of law subject to de novo review. FDIC v. Air Florida System, Inc., 822 F.2d 833, 836 n. 2 (9th Cir.1987). Under federal law,1 "[a] contract or a provision of a contract is ambiguous if it is reasonably susceptible of more than one construction or interpretation." Castaneda v. Dura-Vent Corp., 648 F.2d 612, 619 (9th Cir.1981). The fact that the parties dispute the meaning of a provision of a contract does not establish that the provision is ambiguous. International Union of Bricklayers, Local Union 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir.1985).
We conclude that the provision at issue here is not ambiguous as to its application to the cost of framing necessarily performed by Jones. The contract provided for a unit rate "based on primary manning of 13 1/2 men performing ro/ro work aboard the vessel." Any extra labor was to be paid in addition to the unit price on a cost plus basis. When it became evident that Jones could not stack the units, Jones performed the extra labor of framing to assure that the cargo was properly loaded. The contract specifically and unambiguously provided for payment for that labor.
Thus, while we agree with the district court that Jones is entitled to added compensation for the framing, we do so on the ground that the contract is unambiguous. See Suydam v. Reed Stenhouse of Washington, Inc., 820 F.2d 1506, 1508 (9th Cir.1987) (appellate court may affirm on any ground finding support in the record). Accordingly, we find it unnecessary to review the extrinsic evidence of the parties' intent and knowledge, see Pierce County Hotel Employees and Restaurant Employees Health Trust v. Elks Lodge, No. 1450, 827 F.2d 1324, 1327 (9th Cir.1987) (extrinsic evidence is inadmissible to contradict a clear contract term), or to consider Bassro's argument that the ambiguity should have been resolved against the drafter, see National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 96 n. 1 (9th Cir.1983) (rule of construction applies only when court fails to ascertain meaning of contract).
Affirmed.2
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
"[A]n action based on a stevedoring contract is maritime in nature and is to be controlled by federal, and not state, law." Norddeutscher Lloyd v. Jones Stevedoring Co., 490 F.2d 648, 649 (9th Cir.1973). Nevertheless, the parties cite to both federal and Oregon law. In this instance there appears to be no difference between state and federal law. See Bohemia, Inc. v. Homes Ins. Co., 725 F.2d 506, 509 n. 2 (9th Cir.1984) (comparing admiralty and Oregon rules of contract construction)
Under Oregon law, a contract term is ambiguous if it "has no definite significance or if it is capable of more than one sensible and reasonable interpretation; it is unambiguous if its meaning is so clear as to preclude doubt by a reasonable person." ABCD ... Vision Inc. v. Fireman's Fund Ins. Cos., 84 Or.App. 645, 650, 734 P.2d 1376, 1380 (internal quotation omitted), rev'd in part on other grounds, 304 Or. 301, 744 P.2d 998 (1987). If a clause is deemed to be ambiguous, the court may then admit extrinsic evidence of the parties' intent. Id. These standards are not materially different from the federal standards to be applied in this case.
Both sides move for an award of damages, including attorney fees and double costs, on the grounds that its opponent's positions are frivolous. We have discretion to impose such a sanction. McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir.1981); see also 28 U.S.C. Sec. 1912 (1982) and Fed.R.App.P. 38 (permitting imposition of fees for frivolous appeal)
An appeal is frivolous if it is " 'wholly without merit,' " Wellman v. International Union of Operating Eng'rs, Local 501, 812 F.2d 1204, 1206 (9th Cir.1987) (quoting Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir.1984) (per curiam), or "when the result of an appeal is obvious," Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir.1986) (per curiam). We conclude that the issues in this appeal are not frivolous and therefore we decline to award fees.