                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3464-12T4

HESS CORPORATION,

         Plaintiff-Respondent,            APPROVED FOR PUBLICATION

v.                                             March 26, 2014

ENI PETROLEUM US, LLC,                       APPELLATE DIVISION

         Defendant-Appellant,

and

ENI USA GAS MARKETING LLC,

          Defendant.
___________________________________

         Argued: December 18, 2013 – Decided: January 9, 2014

         Before Judges Simonelli, Fasciale and Haas.

         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).

         The opinion of the court is delivered by

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 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




                                         2                           A-3464-12T4
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.     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


1
  "Firm" as defined in the Base Contract, means that performance
by either party may be interrupted "only to the extent that such
performance is prevented for reasons of Force Majeure."      The
parties chose "Firm" over the option of "Interruptible," which
allows either party to interrupt performance for any reason
without liability.



                                              3                                  A-3464-12T4
month's transaction.            The delivery point for each transaction

was the "Tennessee Gas 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 transporter3 was to be utilized for each transaction.                     The

forms   also   did    not   state    that    defendant   would     produce      the

natural gas.

      On March 20, 2008, the parties negotiated the April 2008

transaction that is the subject of this appeal.                  The agreement

was memorialized in a Transaction Confirmation signed on March

24,   2008.    The    parties      agreed    that   defendant    would    deliver

20,000 MMBTU4 of gas per day to the Tennessee 500 Leg Pool5

#020999 from April 1 through April 30, 2008 for a contract price



2
  The Tennessee 500 is an off-shore pipeline that runs north from
a platform in the Gulf of Mexico to Louisiana.
3
  "Transporter" is defined in the Base Contract as "all Gas
gathering   or   pipeline  companies,   or   local   distribution
companies, acting in the capacity of a transporter, transporting
Gas for Seller or Buyer upstream or downstream, respectively, of
the Delivery Point pursuant to a particular transaction."
4
  "MMBTU" means one million British Thermal Units.        In                    the
industry, it is also referred to as "Dekatherms" and "Deks."
5
  "Pool" refers to an "aggregate point for gas supplies from
various sources," which operates to balance out the fluctuation
and uncertainty in production.



                                        4                                 A-3464-12T4
"Inside FERC6 Gas Market Report First of Month Index."                          This gas

would be pooled with gas from other sources and plaintiff would

then be able to receive the gas at the Tennessee 500.                               Similar

to    all    the    prior     transactions,        the    parties      left    blank      the

"transporter"          information          section         of      the       Transaction

Confirmation form.            Under "Special Conditions" on the form, they

also    listed      "None."         The   Base   Contract        and   the    Transaction

Confirmation form for the delivery period of April 1 through

April       30,     2008    constitute       the     full,       integrated     contract

controlling the transaction at issue in this appeal.

       Defendant produced natural gas from wells located in the

Gulf of Mexico.             Its wells were connected through underwater

pipelines to the Independence Hub ("I-Hub"), a floating platform

in the Gulf, approximately 185 miles off the coast of Louisiana.

Other producers also sent gas to the I-Hub.                        Once in the I-Hub,

the    gas    is    aggregated,       processed,      and    transported        to     shore

through other underwater pipelines.                      The natural gas defendant

produced      at    this    location       was   transported       through      a    single

underwater         pipeline    called      the     Independence        Trail   Pipeline,

owned       and    operated    by    a    separate    entity,      Enterprise.            The

Independence Trail leads to another platform in the Gulf called


6
  "Inside FERC" refers to a public price index of the average
natural gas price for the prior month.



                                             5                                      A-3464-12T4
the West Delta 68.         From there, the gas goes to the Tennessee

500, where it is placed into the pool.

         On April 8, 2008, a leak was discovered in the Independence

Trail Pipeline in a flexjoint that connected the Pipeline to the

I-Hub.      As a result, Enterprise stopped all gas transportation

through the Pipeline.          Because of the leak, defendant could not

get any gas from the I-Hub to the Tennessee 500 until June 2008,

when Enterprise repaired the Pipeline.

         Upon learning of the leak, defendant notified plaintiff in

writing that it was declaring force majeure under the terms of

the Base Contract and that it would not be delivering any gas to

the Tennessee 500 for plaintiff.              In pertinent part, the force

majeure terms of the contract state:

             [N]either party shall be liable to the other
             for failure to perform . . . to the extent
             such failure was caused by a Force Majeure.
             The term "Force Majeure" as employed herein
             means any cause not reasonably within the
             control of the party claiming suspension[.]

             . . . .

             Force Majeure shall include, but not be
             limited to . . . interruption and/or
             curtailment of Firm transportation and/or
             storage by Transporters[.]

         Plaintiff rejected defendant's declaration of force majeure

as   a    reason   for   its   failure   to   perform   under   the   contract.

Plaintiff pointed out that the Tennessee 500 pool is fed by a




                                         6                             A-3464-12T4
number   of     different      sources.7            Therefore,     the    leak     in   the

Independence Trail Pipeline did not affect the availability of

natural gas at the Tennessee 500 delivery point.                                 Plaintiff

noted    that    the       Transaction         Confirmation      form    also     did   not

identify Enterprise or the Independence Trail Pipeline as the

specific transporter.              After defendant failed to provide gas to

plaintiff at the Tennessee 500 pool, plaintiff was forced to

purchase      gas     on     the       "spot     market"8   to     fulfill       its    own

obligations.         This gas cost over $300,000 more than plaintiff

would have had to pay defendant for the gas under the March 24,

2008 Transaction Confirmation.

    Plaintiff          filed       a    breach      of   contract       action     against

defendant.       Judge Richard Rebeck conducted a three-day bench

trial and issued a written decision finding defendant liable for

plaintiff's         damages.            The     judge    reviewed        the     pertinent

provisions of the Base Contract and the Transaction Confirmation

form, and noted that, in the March 24, 2008 form, the parties


7
  Defendant conceded that it had other production points in the
Gulf that tied into the Tennessee 500 through pipelines not
affected by the leak on the Independence Trail Pipeline.
However, it argued that all of the gas was committed to other
customers and that, without the gas from the Independence Trail
Pipeline, it could not fulfill its contractual obligation to
plaintiff.
8
  The "spot market" refers to the Intercontinental Exchange Spot
Market, an electronic system used to trade gas.



                                                7                                 A-3464-12T4
identified only "the contract price, the delivery period, the

performance    obligation         (quantity/Firm)            and    delivery         point

(Tennessee 500 Leg).         No base contract number is listed nor a

transporter    and    transporter        contract      number      identified.          No

special conditions are set forth."

    The judge found that "[t]he absence of a listed transporter

or special conditions is critical to the disposition of this

matter."    Defendant had agreed to provide a specific quantity of

gas at a specific location, the Tennessee 500, during the month

of April 2008.        Nothing in the contract stated that defendant

would   only   be    able    to    provide     the     gas    through      a    specific

transporter,        Enterprise,      using       a      specific          route,       the

Independence Trail Pipeline.             Gas remained available from other

sources at the delivery point.                Thus, the judge ruled that the

leak in the Independence Trail Pipeline did not constitute a

force majeure event under the contract and was not grounds for

excusing defendant's failure to perform the clear terms of its

agreement with plaintiff.

    After      the      judge        denied          defendant's          motion       for

reconsideration,       the   parties       stipulated         to    the     amount      of

damages,    interest,    and      fees   due    to    plaintiff      and       the   judge

entered an amended final judgment on March 7, 2013.                        This appeal

followed.




                                          8                                      A-3464-12T4
       On    appeal,    defendant      argues     that      the     judge       erred    in

rejecting its force majeure defense.                   An appellate court must

accord deference to a trial court's factual findings when such

findings are "supported by adequate, substantial and credible

evidence."      Rova Farms Resort, Inc. v. Investors Ins. Co. of

Am.,    65    N.J.     474,    484   (1974).          But    "[a]      trial      court's

interpretation of the law and the legal consequences that flow

from    established         facts    are   not    entitled        to      any     special

deference."       Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).            Contract interpretation is a question

of law.       Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt.

Osteopathic Med. & Physical Therapy, 210 N.J. 597, 605 (2012).

Accordingly, no special deference is given to the trial court's

interpretation; rather, this court "look[s] at the contract with

fresh eyes."         Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011);

see Manalapan Realty, supra, 140 N.J. at 378.                          Applying this

standard, we conclude that there was no error.

       The parties agree that the Base Contract and Transaction

Confirmation are governed by the laws of New York.                        Applying New

York contract law, we must first determine whether the terms of

the    contract       are     ambiguous.         Int'l      Multifoods          Corp.    v.

Commercial     Union    Ins.    Co.,   309     F.3d   76,    83     (2d   Cir.     2002).

Ambiguity is found if the terms in the contract are susceptible




                                           9                                      A-3464-12T4
to more than one meaning.               Chimart Assocs. v. Paul, 498 N.Y.S.2d

344,     346        (1986).         The        parties'         differing           subjective

interpretations,           however,     will         not     rise     to     the    level      of

ambiguity      if    the    contract      is    otherwise           clear.         See,    e.g.,

Bethlehem Steel Co. v. Turner Constr. Co., 161 N.Y.S.2d 90, 93

(1957); Moore v. Kopel, 653 N.Y.S.2d 927, 929 (App. Div. 1997).

Only if the contract is ambiguous will the court allow extrinsic

evidence of the meaning of the terms.                        However, if the contract

terms   are    unambiguous,         the    court       will     not    permit        extrinsic

evidence; rather, it will look only at the contract itself to

determine      the     intent     of    the         parties.         W.W.W.        Assocs.      v.

Giancontieri, 565 N.Y.S.2d 440, 443 (1990); R/S Assocs. v. N.Y.

Job    Dev.    Auth.,       744   N.Y.S.2d      358,        360,     rearg.    denied,         747

N.Y.S.2d 411 (2002); Mercury Bay Boating Club, Inc. v. San Diego

Yacht Club, 557 N.Y.S.2d 851, 857 (1990).

       In the present case, the parties agree that the contract is

unambiguous.          The     parties     do    not        dispute    the     terms       in   the

contract, nor do they dispute the existence of the force majeure

provisions.         They do, however, dispute the availability of the

force majeure defense in these specific circumstances.                                Thus, we

turn to a consideration of those provisions.

       Force majeure clauses are narrowly construed.                               See, e.g.,

Kel Kim Corp. v. Cent. Markets, Inc., 524 N.Y.S.2d 384, 385




                                               10                                     A-3464-12T4
(1987).      "Ordinarily,       only        if   the     force       majeure       clause

specifically includes the event that actually prevents a party's

performance will that party be excused."                  Ibid.

      Here,     neither      the     Base    Contract        nor     the    Transaction

Confirmation specified the source of the natural gas defendant

would sell to plaintiff.            The contract documents do not identify

a specific transporter which would deliver the gas or a specific

pipeline that would be used.                No special conditions were placed

on defendant's obligation to provide the gas at the specified

date at the Tennessee 500.              The contract documents merely fix

the price to be paid, the amount of gas to be delivered, and the

delivery point (the Tennessee 500) where the gas would be made

available to plaintiff.

      Because there was nothing limiting defendant's performance

to only gas it produced through the I-Hub, an interruption in

the   Independence      Trail       Pipeline     bringing          that    gas    to    the

Tennessee      500     was    irrelevant         to     defendant's         obligation.

Defendant was required to have gas available in the Tennessee

500   pool     for   plaintiff,       regardless        of    how     it    got    there.

Defendant was free to use its other sources of gas to fill part

of the contract or to purchase gas from the pool or the spot-

market    to    meet    its        contractual        obligation      to     plaintiff.




                                            11                                    A-3464-12T4
Therefore, defendant could not invoke force majeure as a defense

to plaintiff's breach of contract claim.

    As Judge Rebeck observed, the decision of the Texas Court

of Appeals in Virginia Power Energy Mktg., Inc. v. Apache Corp.,

297 S.W.3d 397 (Tex. App. 2009), is instructive.               In that case,

the seller claimed force majeure under a NAESB contract, which

was identical to the Base Contract in this case.                    The seller,

Apache, had agreed to deliver natural gas to the buyer, Virginia

Power, at a delivery point called the Transco-65.                   Id. at 400.

Because of damages caused by hurricanes, Apache stated it lost

its gas supply and could not deliver the gas.              Id. at 405.        The

Transco-65, however, was unaffected by the storms and remained

open for business.      Ibid.

    As   here,    neither   the    Base   Contract   nor      the    subsequent

Transaction Confirmations revealed any intent by Apache to limit

its "gas supply" to any specific supply source.                     Id. at 406.

Instead, Apache argued that the term "gas supply" was commonly

understood   in   the   industry   "to    refer   only   to    those    sources

internally designated by the seller."             Id. at 405-06.         On the

other hand, Virginia Power asserted that, "if a seller wishes to

limit its 'supply' to a specific source, it must expressly state

that intent in the contract."         Id. at 406.        The court rejected

Apache's argument, finding that, if the parties had intended to




                                     12                                 A-3464-12T4
limit Apache's obligation to providing gas from a particular

source, this term should have been included in the Transaction

Confirmation.    Id. at 406-07.9

     Relying upon Virginia Power, Judge Rebeck stated:

          The Texas court in Virginia Power, supra,
          makes    clear     the     significance      and
          requirements of delimiting terms that are to
          control a contract such as that between
          [defendant] and [plaintiff].         There was
          testimony that [defendant's] sole source of
          gas in the Gulf in quantities to meet the .
          . . contract came from the Independence Hub
          to   the   agreed   upon   deliver[y]     point.
          Likewise, as stated above, [defendant] had
          other wellheads in the Gulf tied to the
          delivery   point  that,    according    to   the
          testimony,   were   insufficient    to    supply
          [plaintiff]    or    whose    production     was
          committed.    Since the source of its gas
          supply was not set forth in the Base
          Contract or as [a] special condition of the
          Transaction Confirmation, [defendant] cannot
          rely upon force majeure in this context to
          excuse performance.

          Likewise, absent the designation of the
          Independence    Trail   Pipeline    as   the
          transporter   in   the   Base  Contract   or
          Transaction Confirmation, [defendant] cannot
          rely upon force majeure in this context to
          excuse performance.

We   discern    no   basis   for   disturbing   the   judge's   reasoned

determination.


9
  The court found there were questions of             fact as to the
definition of Apache's "gas supply" and,              accordingly, it
remanded the matter for further proceedings.           Virginia Power,
supra, 297 S.W.3d at 409.



                                    13                          A-3464-12T4
       Defendant        argues   that    its      performance       should   be    excused

under the portion of the force majeure clause that states that a

force majeure event "shall include, but not be limited to . . .

interruption and/or curtailment of Firm transportation and/or

storage     by   Transporters."             Because    the    transporter        defendant

used,      Enterprise,      could     not     make    its     deliveries      using     the

Independence        Trail      Pipeline,      defendant       argues      that    its   own

performance        should      have   been       excused.      However,      defendant's

argument ignores the fact that the parties did not identify

Enterprise as a transporter or the Independence Trail Pipeline

as   the    sole    source       of   the    gas     needed    to    meet    defendant's

obligation.              This     provision          also     plainly        refers       to

"transporters", thus indicating that the gas could come from

more than one point to the Tennessee 500.                         Thus, this provision

does not excuse defendant's performance.

       Defendant cites Loomis v. N.Y. Cent. & Hudson River R.R.

Co., 96 N.E. 748, 751 (N.Y. 1911), in support of its contention

that    "[t]he      fact       that   the     parties       did     not   identify      the

Transporter        in    the     March      24    Transaction        Confirmation       was

insignificant, as the specific route the gas was to take to get

to the agreed Delivery Point was not essential."                          However, this

case is factually inapposite to the matter at hand.                              The issue

in Loomis was whether parol evidence could be admitted to show




                                             14                                   A-3464-12T4
that   the     parties     intended   that      a   "carload    of    potatoes"     be

delivered using a particular train route when the contract did

not so specify.           Id. at 748.       The court held that such parol

evidence was inadmissible.            Id. at 751.          Thus, this case has no

relevance to the circumstances presented here, where the parties

both agree that the contract is unambiguous and that parole

evidence cannot be admitted to alter the terms they agreed upon.

       Significantly, however, in Loomis, the court stated that

"[t]he effect of not specifying the route was simply to leave

that subject open to the choice of the carrier, which could

select any route that it chose."                Ibid.      This principle plainly

supports the trial judge's determination.                   The source of the gas

and the route it would follow to the Tennessee 500 were plainly

"incidental" to the parties.               The contract is clear: defendant

was required to provide plaintiff with a specific amount of gas

at the Tennessee 500 during April 2008, regardless of how it got

the    gas   to    the    delivery    point.         Thus,     the    leak   in    the

Independence        Trail       Pipeline    did      not     excuse     defendant's

performance.

       Finally, defendant argues that the judge's interpretation

of the contract "negates the force majeure provision" and that

the    judge      erred    in    finding    that     defendant       "waived"     that

provision.        We disagree.       Had the contract documents set forth




                                           15                                A-3464-12T4
the   source   of   the    gas   defendant    proposed     to   sell   and   the

transporter    it   intended     to   use   to   deliver   that   gas,    force

majeure could have been invoked.            However, because the contract,

by its express and unambiguous terms, did not limit defendant's

obligation     in   that    fashion,    the      judge   correctly     rejected

defendant's argument.

      Affirmed.




                                       16                              A-3464-12T4
